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MoCULLOCH, C. J.
An indictment was returned by the grand jury of Johnson County accusing the defendant Hobart Snow of the crime of rape, committed on the person of Pearl Martin, a young woman about the age of seventeen years. On the trial of the case defendant was convicted of assault with intent to rape and the punishment was fixed at confinement in the penitentiary for a term of fifteen years.
The first ground urged for reversal is that the court erred in refusing to quash the indictment because the names of all the witnesses who appeared before the grand jury were not endorsed on the indictment. The record does not show that defendant asked for a ruling of the court on the motion to quash. Moreover, this court de cided in Johnson v. State, 33 Ark. 174, that an indictment should not be quashed on account of the failure to endorse thereon the names of witnesses, but that on application of the accused the court should require the prosecuting attorney to endorse the names of the witnesses on the indictment or furnish a list of the witnesses to the accused. No such application was made to the court in this case.
The next ground for reversal urged is that the court should have granted defendant’s motion for continuance on account of absent witnesses. It is stated in the motion that the two witnesses would testify that they were present when the act of sexuál intercourse took place between defendant and Pearl Martin and that she consented to the intercourse. This testimony would have been cumulative of that of other witnesses who were present at the trial. Besides, the motion for continuance failed to show diligence in an effort to procure the attendance of the absent witnesses. The testimony shows that there were six boys present, defendant being one of them, and that three of them had intercourse with the girl. She testified, in substance, that the intercourse with her was had forcibly and against her will, but the boys testified that she consented. There is a conflict in the testimony, but the verdict of the jury determined that issue' against the defendant. It can not be successfully maintained that the verdict is entirely without substantial evidence to support it. If the sexual intercourse between defendant and the girl was, as the jury found, forcibly and against her will, the verdict should have been one finding defendant guilty of the crime of rape, for it seems to be undisputed that the act of sexual intercourse between the parties was fully consummated. But the fact that the jury have acquitted defendant of the higher offense, which the evidence warranted, is not a matter of which he can complain since the verdict of the jury was an act of leniency.
Again, it is urged that the judgment should be reversed because the jury fixed the verdict by the quotient method. This charge is not sustained by evidence, except by the affidavit of a juror, which is inadmissible to impeach the verdict. Speer v. State, 130 Ark. 457.
The motion for new trial sets forth newly-discovered evidence favorable to defendant, which a witness introduced by him failed to disclose when he was examined. The motion fails to show diligence. The witness was introduced by defendant and gave testimony favorable to his defense, but questions were not propounded to elicit the testimony said to have been disclosed after the trial. The granting of a new trial on such grounds is generally a matter within the sound discretion of the trial court, and no abuse of discretion is shown in this instance.
Affirmed. | [
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MoCULLOCH, C. J.
Appellants are owners of real property within the boundaries of a road improvement district in Polk County created by a judgment of the county court of that county, entered on March 5, 1919, pursuant to the terms of the act of March 30, 1915, authorizing the creation of such districts. Acts 1915, page 1400. Appellants appeared in the county court within thirty days after the rendition of the judgment creating the district and prosecuted an appeal to the circuit court from that judgment. The trial of the cause in the circuit court resulted in a judgment of that court creating the district, as was done by the order of the county court' appealed from.
The only issue in the trial below was concerning the number of signatures of property owners to the petition for the improvement. Section 2 of the statute cited above provides that the county court shall make an order establishing a district when it appears to the court “that the petition is signed by either a majority in land value, acreage, or in number of land owners within the proposed district, and if the county court deems it to the best interest of the county and the land owners in said district” and that “such majority in acreage, number of land owners, or majority in land value to be determined by the assessment for the purpose of general taxation in force in said county at that time. ’ ’
Appellants have undertaken to raise here for the first time the question whether or not the record shows that the county court was in session when the judgment was rendered creating the district. The record sent up to the circuit court contains the opening order of the court on the day fixed by law, being the first Monday in January, 1919, and various adjournment orders from time to time over to March 3, but the order of adjournment on March 3 does not appear in the record. In other words, the record of the county court entered on March 3 does not show the order of adjournment on that day. The opening order of the record on March 5 recites, however, that the court met that day pursuant to adjournment. This question was not raised in the trial below, and in view of the silence of the record concerning the adjournment on March 3, and the recitals of the opening order of the court on March 5, we must indulge the presumption that there was an adjournment over to the latter date.
Coming then to the only question raised'in the trial below and properly presented here for decision, we are only called upon to decide whether or not there was substantial evidence to sustain the finding of the court. On the application of all the parties to the controversy, the court appointed three commissioners to ascertain the facts concerning the number of property owners in the district and the number of valid signatures to the petition. Those commissioners made a report of their findings to the court, and also testified orally. Appellants also testified concerning the number of property owners and the number of valid signatures on the petition. Appellants also introduced the record of real estate assessment books of the county, but the same has not been abstracted. They have, however, abstracted the testimony of all the witnesses bearing on the issue involved.
We are, as before stated, only concerned with the question of legal sufficiency of the evidence, and upon due consideration we have reached the conclusion that there is sufficient evidence to sustain the finding of the court. In doing so we look only to the abstracted evidence, which was that of the witnesses introduced on each side without objection, tending to establish the number of owners of real property in the district and the number of valid signatures to the petition. The judgment of the court was manifestly based upon a finding that the petition contained a majority of the owners of property, not in acreage or in value, but a majority in numbers, and we think there is enough testimony to support that finding.
We do not deem it necessary to decide whether or not the county tax assessment records are conclusive as to the ownership and number of land owners, for we think that in either view of the matter there is enough evidence to sustain the finding of the court. The testimony adduced by appellee tends to show that there are 1,841 owners of real property in the district, but that the names of 132 of them do not appear on the assessment books, which, according to that testimony, leaves 1,709 names of property owners on the assessment books. The same testimony also tends to show that there are on the petition the signatures of 881 property owners whose names appear, on the county assessment books, and also the signatures of 132 other property owners in the district whose names do not appear on the assessment books. Taking, therefore, the assessment books as the sole guide, there are 1,709 names of which' 881 appear on the petition, which constitutes a majority of 53. On the other hand, if we construe the statute not to make the assessment books the sole test, it appears from the testimony most favorable to appellee that there are 1,841 owners of property in the district and that 1,013 of them signed the petition. In either event, there is legally sufficient evidence to sustain the verdict, and the judgment is, therefore, affirmed. | [
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McCHLLOCH, C. J.
Appellants are owners of land in a road improvement district in Woodruff County, created by a local statute enacted by the General Assembly of 1919, at the regular session (Act 402, p. 1693), and they instituted this action against the commissioners of the' district to restrain proceedings on the ground that the statute is void and unenforceable.
One of the grounds for the attack on the validity of the statute is that the description of the road to be improved is too vague for identification. The clause of the statute describing the road reads as follows:
“Beginning at the east corporate limits of the city of Cotton Plant, thence running in an easterly direction about one mile, thence in a northerly direction to the town of Jelks. Also a road beginning at the intersection of the Old Military Road with St. Francis and Woodruff counties, thence in a southwesterly direction through Hunter; thence continuing westerly so as to intersect the road first above described at a point to be selected by the commissioners and approved by the county court. The improvements to be made in the said district are to be made along the route designated by this act. ’ ’
It is shown on the map introduced in evidence and verified by testimony adduced that there are two parallel public roads to Jelks, intersecting the roads running east out of Cotton Plant, and it is argued that the statute does not identify the particular one to be improved and that this renders the statute void. The description in the statute is that the road to be improved is one that leaves the road running east about a mile from Cotton Plant, and only one of the parallel roads shown on the map answers that description. It follows, therefore, that the road to be improved is capable of identification from the language of the statute. The statute is not uncertain in this respect,' and the attack upon it on that ground is unfounded.
It is next insisted that the statute is void for the reason that the agency providing for approving the plans and for levying assessments is not sufficiently designated, and that the court for the enforcement of the collection pf assessments is not definitely specified.
The statute provides that the plans and assessment lists shall be filed in the office of the clerk of the county court, which court is authorized to approve the same. It also provides that suits to enforce the assessments shall be instituted in the chancery court.
Woodruff County was, by a statute enacted in the year 1901 (Acts 1901, p. 249, as amended by the act of 1909, p. 937), divided into two districts in which separate courts, chancery, circuit, probate and county, are held, and the county clerk is required to maintain an office in each of the districts. The respective courts are held at Augusta, the county seat, which is in the Northern District, and at Cotton Plant, in the Southern District. The territory embraced in the road improvement district, and the road to be improved, lie in both of the court districts, and the contention in this case is that the statute is void for uncertainty because it fails to specify which of the courts is to take jurisdiction of the proceedings.
It is plain from the language of the statute that the county court for the Southern District at Cotton Plant is the one to have jurisdiction over the proceedings, for in section 8 of the statute prescribing the form of notice to landowners the county court at Cotton Plant is the one mentioned. This supplies the omission to mention the particular court in other sections of the statute, for it shows definitely what was in the minds of the lawmakers with respect to the proper court. The fact that some of the affected territory and the roads to be improved lie in the Northern District does not constitute an attempt to give the county court at Cotton Plant extraterritorial jurisdiction, for the division of the county into separate districts results only from the force of a statute, and the legislative authority which separated the judicial system of the county could withdraw it for the purpose of conferring exclusive jurisdiction on one of the, county courts.
Now, the provision for the collection of assessments by decree of court refers to another statute (Act 1909, p. 829), concerning drainage districts, and that statute provides for suits in rem in the chancery court of the county where the lands lie. This confers jurisdiction on either of the chancery courts of Woodruff County, for some of the lands lie in each district. The statute, supra, creating separate districts in Woodruff County provides that each district shall be treated as a separate county for the purpose of determining the jurisdiction of courts. But, even if the statute was indefinite in this respect, either of those courts would have jurisdiction under general statutes to enforce liens on land. Kirby’s Digest, § 6060.
Another specified ground of attack on the statute is that lands in the town of Cotton Plant, lying adjacent to the proposed improvement, are exempted from the operation of the statute, whilst other lands more remote from the road to be improved are expressly embraced in the district. The doctrine announced by this court in Heinemann v. Sweatt, 130 Ark. 75, and in Milwee v. Tribble, 139 Ark. 574, is invoked as sustaining the contention of appellants.
It is not true that the lands inside of the town of Cotton Plant are exempted from the operation of the statute. Certain rural tracts of land lying west and northwest of the town are embraced in the district and the language describing those tracts refers to parts of designated subdivisions as “not embraced in the corporate limits of the town of Cotton Plant.” But this language does not affirmatively exclude the lands in the town from the operation of the statute, as was the case in the statute under consideration in Harrison v. Abington, ante p. 115, where entirely different language was employed. Lands in the town of Cotton Plant are, it is true, excluded from the boundaries of the district, but the statute contains a provision that “if the commissioners conclude that lands not within the boundaries of the district, as heretofore laid out, will be benefited by the im provement of the roads, they shall assess the benefits and damages to such lands,” etc. This operates as authority for the assessment of all lands benefited by the improvement and prevents discrimination arising from mistakes on the part of the lawmakers in failing to include in the boundaries of the district all lands benefited. It is the exemption of benefited lands, and not the mere failure to include all such lands within the prescribed boundaries of the district, that would operate as an unjust discrimination and invalidate the creation of an improvement district. Such is not the case here.
Finally, it is insisted that the statute is discriminatory and void because it applies only to lands in Woodruff County and excludes lands in Monroe County abutting on the road to be improved. The road running east about a mile from Cotton Plant is on the line between the two counties, and there is no provision, it is conceded, for assessing the lands in Monroe County.
The question is ruled, we think, by the decisions of this court in several recent cases, notably in Van Dyke v. Mack, 139 Ark. 524, and Cumnock v. Alexander, 139 Ark. 153, as well as other cases cited in the brief of counsel for appellees. It must be conceded that undisputed facts in this case furnish strong reasons for the contention that the lands in Monroe County abutting on the road will be substantially benefited by the improvement, and that the exclusion of those lands was arbitrary — that the legislative determination was erroneous — but those reasons are not conclusive. It is the duty of the courts to respect legislative ascertainment of facts upon which laws are based unless such determination is obviously erroneous, and there may be facts and existing circumstances which we are not at liberty to inquire into for the purpose of reviewing the decision of the lawmakers. The lands lie in a different county and the arrangement of the roads, serving as means of travel to and from the commercial, social and educational centers of that county and its various community units, may be such as to justify the conclusion that a road between two points in another county will not prove to be of sufficient benefit to warrant tbe taxation of those lands to pay the cost of making the improvement. VanDyke v. Mack, supra.
This question in the case is, confessedly, not free of doubt, but it is our duty to resolve all reasonable doubt in favor of upholding the legislative decision.
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HUMPHREYS, J.,
(after stating the facts). It is first insisted by appellants that, because a judgment was rendered in the Supreme Court on appeal, in the original foreclosure proceeding, against Mrs. Nannie E. Sumpter and her bondsmen on the supersedeas bond, the Hot Springs Savings, Trust & Guaranty Company had no right to take a mandate and attempt to enforce the collection of its original judgment and decree of foreclosure in the chancery court. Such is not the effect of an appeal with supersedeas. This court said in the case of Miller v. Nuckolls, 76 Ark. 485, that “An appeal and supersedeas do not have the effect of vacating the judgment, but only stay proceedings thereunder.”
It is next insisted that the chancery court had no jurisdiction to approve a sheriff’s sale made under general execution, directed and issued on the bond executed for the purchase money of the Sumpter property by William Sumpter, as principal, and Mrs. Nannie E. Sumpter and Orlando H. Sumpter, as sureties, upon their failure to pay it. The execution referred to under which the sale was made was a general execution issued on said bond, which had been executed in the manner provided in sections 3260 and 3261 of Kirby’s Digest. It is provided by section 3262 of Kirby’s Digest that “.All such bonds shall have the force and effect of a judgment, * # * ” This execution could have been raised as well without as with an order of the court. The order of the court directing it does not give it any additional force and effect. The sale under an execution on such a bond is strictly a statutory proceeding. No authority is given in the statute authorizing a court to confirm a sale of real estate made thereunder, nor to order the sheriff to make the sale and make a deed to the purchaser, or to issue a writ of possession for the property sold under it. It is a proceeding wholly independent of an order of sale made by a chancery court in the enforcement of a decree of foreclosure. In that character of sale, it is the duty of the court to fix the time, place and terms of sale, and the court making such an order is authorized to confirm the sale and order a deed and issue a writ for the possession of the specific property sold thereunder. The chancery court therefore erred in confirming the sheriff’s sale made under the first writ of execution, in appointing a commissioner to make a deed, and in issuing a writ of possession for the Sumpter House property in favor of appellees, Hot Springs Savings, Trust & Guaranty Company and J. F. George.
It is contended, however, by appellees, that, because J. F. George, Mrs. Nannie E. Sumpter’s tenant, attorned to the Hot Springs Savings, Trust & Guaranty Company, it was in possession of the property and had a right to injunctive relief to protect its possession against trespassers, and that, under the rule that when the chancery court takes jurisdiction for one purpose it will give complete relief, it was entitled to have the sheriff’s sale confirmed, a court deed and a writ for possession.
If the execution sale was regular,the effect of the sheriff’s deed was to divest whatever- title William Sumpter and his sureties, Orlando H. Sumpter and Mrs. Nannie E. Sumpter, had in the real estate sold under both executions, and to vest it in the Hot Springs Savings, Trust & Guaranty Company. Where the landlord’s title has passed to another by process of law,.the tenant’s responsibility is then to the true owner. Earle v. Hale, 31 Ark. 470. The rule is laid down in 24 Cyc., at page 956, that “A tenant may attorn to the purchaser of his landlord’s interest at an execution sale, or at a foreclosure sale. ’ ’
Presuming, then, on the regularity of the execution sale and that appellees were, and are, in the rightful possession of the Sumpter House property, it does not follow that injunctive relief may be invoked to protect their possession against trespasses remediable at law. The trespasses and threats of ouster alleged in the complaint were not of such continuous and irreparable nature as would call for injunctive relief. Appellees, being in possession of the Sumpter House property, had a right to sue the Sumpters at law for any damages occasioned by their trespasses, it not being alleged that they were insolvent. This is the substance of their complaint as to said property.
As to the other property purchased, for which they held a sheriff’s deed, the complaint can only be treated as a suit in ejectment if appellants are resisting possession thereof. The answer of appellants indicates that they are resisting the right to recover possession of the latter property, and also the action for damages on account of trespasses as to the Hotel Sumpter property, because the execution sale was not made according to law. It is said that such a defense can not be interposed, because the validity of the execution sale was involved in the bill for review. It was not a proper subject for a bill in review, because the sale was made after the final adjudication in the original foreclosure proceeding. It was proper subject-matter for defense in the suit of appellees for damages on account of trespasses to the Sumpter House property, and in a suit for the possession of the other property sold at the first execution sale. The court erred in striking out that portion of appellant’s answer.
For the errors indicated, the decree is reversed with instructions to transfer the suit to the circuit court. | [
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PER CURIAM.
bln 2008, appellant Kelton Esquire Bond was convicted by a jury of multiple drug-related offenses and sentenced to an aggregate term of 115 years’ imprisonment. The Arkansas Court of Appeals affirmed the judgment. Bond v. State, 2010 Ark. App. 664, 2010 WL 3934599. Appellant subsequently filed in the circuit court a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2008), a motion for an evidentiary hearing, and a motion to appoint counsel. The circuit court denied appellant’s petition without a hearing and further denied appellant’s motion to appoint counsel. Appellant now brings this appeal. Our jurisdiction is pursuant to Rule 37 and Arkansas Supreme Court Rule 1 — 2(a)(8) (2012).
This court does not reverse a denial of postconviction relief unless the circuit court’s 12flndings are clearly erroneous. Banks v. State, 2013 Ark. 147, 2013 WL 1491272. 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. Hickey v. State, 2013 Ark. 237, 428 S.W.3d 446, 2013 WL 2361052 (per curiam).
On appeal, appellant argues that trial counsel was ineffective for the following reasons: (1) failing to impeach one of the State’s -witnesses; (2) failing to call mitigation witnesses during the sentencing phase of trial; (3) representing appellant despite an alleged conflict of interest; (4) failing to object to comments made by the State in closing arguments; (5) abandoning appellant’s appeal; (6) failing to prepare for trial, communicate with appellant, and call witnesses during the penally phase of trial; (7) failing to challenge the jury-selection process. We find no error and affirm the denial of postconviction relief on all points.
In an appeal from a circuit court’s denial of a petition for postconviction relief under Rule 37.1, the sole question presented is whether, based on the totality of the evidence, the circuit court clearly erred in holding that counsel’s performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hickey, 2013 Ark. 237, 428 S.W.3d 446, 2013 WL 2361052. Under the two-prong Strickland test, a petitioner raising a claim of ineffective assistance of counsel must first show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Id. A petitioner making an ineffective-assistance-of-counsel claim must show that counsel’s performance fell below an objective standard of reasonableness. Dansby v. State, 347 Ark. 674, 66 S.W.3d 585 (2002). In doing so, the claimant must overcome a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830.
With respect to the second prong of the test, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he or she was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. Such a showing requires that the petitioner demonstrate a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). 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 not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process rendering the result unreliable. Id. There is no reason for a court deciding an ineffee-tive-assistance-of-counsel claim to address both components of the Strickland standard if the appellant makes an insufficient showing on one of the prongs. Id. (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052).
As his first point on appeal, appellant argues that the circuit court erred in denying relief on his claim that counsel was ineffective in failing to impeach one of the State’s witnesses. Specifically, appellant asserts that the testimony of Officer Nathan Atchison regarding a confiscated lockbox containing cocaine, other drug paraphernalia, and a utility-payment receipt bearing appellant’s name was a “complete fabrication.” Appellant alleged in |4his petition that had counsel impeached the testimony of Officer Atchison, the following facts would have been revealed: (1) the lockbox was not located in appellant’s residence; (2) the key to the lockbox was not found on appellant’s person; (3) the utility-payment receipt was not found in the lock-box. Appellant further asserted that Officer Atchison’s testimony could have been impeached through the testimony of Officers Dana Winn and Jared Crabtree, both of whom, he contended, would have testified in accordance with his allegations. The circuit court denied appellant’s request for postconviction relief on this point, finding that appellant’s allegations were not supported by the record and that appellant failed to show prejudice.
Contrary to appellant’s assertions, counsel could not have impeached Officer Atchison’s testimony regarding the location of the lockbox and key because Officer Atchison did not testify that the lockbox was found in appellant’s residence or that the key was found on appellant’s person. Rather, Officer Atchison’s testimony indicated that the lockbox was retrieved from a' nearby residence where appellant was located prior to the execution of the search warrant and that the key to the lockbox was found in appellant’s residence after appellant told him where it could be found. Officer Atchison’s testimony regarding the location of the lockbox and key was corroborated by the testimony of Officers Winn and Crabtree.
As for Officer Atchison’s testimony regarding appellant’s utility-payment receipt that was found in the lockbox, the trial record does not support that proper impeachment would have revealed inconsis-tences in Officer Atchison’s testimony; nor does the record support the [.¡allegation that counsel failed to impeach Officer At-chison’s testimony in this regard. Appellant alleged in his petition that had counsel properly impeached Officer Atchison’s testimony by questioning Officers Winn and Crabtree regarding the lockbox and its contents, he would have been able to show the jury that the utility-payment receipt bearing appellant’s name was not found in the lockbox. However, Officers Winn and Crabtree were, in fact, questioned regarding the contents of the lockbox. Officer Winn testified on direct and on cross-examination that while her report stated that the receipt was found in the same residence as the lockbox, her recollection is that it was found inside of the lockbox. Finally, Officer Crabtree testified as to his recollection of the contents of the lockbox, stating that he remembered finding a carpet-deodorizer container with a false bottom that contained cocaine inside and small plastic bags.
The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmatively support the claims of prejudice. Hickey, 2013 Ark. 237, 428 S.W.3d 446, 2013 WL 2361052. Conclusory allegations unsupported by factual information of counsel’s ineffectiveness do not provide a basis for postconviction relief. Hogan v. State, 2013 Ark. 223, 2013 WL 2295431 (per curiam); Adams v. State, 2013 Ark. 174, 427 S.W.3d 63. Appellant’s allegations of ineffectiveness are not supported by the record, and appellant does not offer factual substantiation to establish that counsel failed to properly impeach the testimony of Officer Atchison. Thus, appellant’s assertion that counsel was ineffective in failing to impeach Officer Atchison’s testimony is unfounded, and the circuit court did not err in denying relief on this point.
IfiAs his second point on appeal, appellant argues that the circuit court erred in denying relief on his claim that counsel was ineffective because he failed to present mitigating issues or call witnesses during the sentencing phase of trial. Specifically, appellant asserts that counsel did not call the three mothers of his children who would have testified, according to appellant, that he was a caring father. The circuit court denied relief on this point, finding that the subject-matter to which appellant contended his proposed three witnesses would have testified was covered by the testimony of appellant and his mother, both of whom testified that appellant was a caring, loving father. The circuit court further ruled that appellant did not adequately show prejudice as a result of counsel’s failure to question the three proposed witnesses.
For ineffective-assistance-of-counsel claims based on failure to call a witness, this court has held that it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Smith v. State, 2010 Ark. 137, 361 S.W.3d 840 (per curiam). This appellant failed to do. Thus, the allegation was conelusory and did not merit further consideration.
Moreover, the failure to call witnesses whose testimony would be cumulative to testimony already presented does not deprive the defense of vital evidence. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. As the circuit court noted in its order, the mitigating factors to which appellant contends the mothers of his children would have testified (i.e., his role as a father) were presented to the jury through the testimony of appellant and his mother. | .Accordingly, we cannot say that the circuit court erred in declining to find counsel ineffective for failing to call the three witnesses proposed by appellant.
As his third point on appeal, appellant argues that the circuit court erred in denying relief on his claim that counsel was ineffective in representing conflicting interests. Specifically, appellant asserts that counsel was involved in another lawsuit involving the grandparents of one of appellant’s children and that counsel was related to the mother of one of his children. The circuit court found appellant’s allegations to be conelusory and further found that appellant did not show prejudice.
It is well settled that prejudice is presumed only where counsel actively represents conflicting interests, and an actual conflict adversely affected counsel’s performance. Norris v. State, 2013 Ark. 205, 427 S.W.3d 626 (per curiam). An allegation consisting of the mere belief that a division of loyalties existed is not sufficient. Id. It was appellant’s burden to show that an actual conflict was created by counsel’s alleged involvement with the grandparents and mother of one of his children. Here, appellant failed to identify the lawsuit existing between counsel and his child’s grandparents and failed to name the individual to whom he contended counsel was related and identify the degree of relationship. Additionally, appellant failed to show how counsel’s alleged conflict of interest, adversely affected his performance. Accordingly, we find no error in the circuit court’s denial of relief on this point.
Appellant next argues that the circuit court erred in denying relief on his claim that counsel was ineffective in failing to object to certain statements made by the State in its 18closing arguments during the sentencing phase of trial. Appellant alleged in his petition that during closing arguments, the State purported that appellant was “one of the largest drug dealers in northwest Arkansas,” that appellant lied during his testimony, and that appellant’s children “would be better off without [appellant] in their lives.” However, appellant fails to cite to any part of the record where such statements were made; nor does he show how he was prejudiced by counsel’s failure to object.
With regard to the statement that appellant was one of the larger drug dealers in Northwest Arkansas, the record reflects that counsel addressed this in his own closing arguments, calling it a misnomer. Additionally, counsel responded to the State’s comment regarding appellant’s children, requesting that the jury return a lesser sentence and afford appellant the opportunity to foster a meaningful relationship with his children.
The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmatively support the claims of prejudice. Payton v. State, 2011 Ark. 217, 2011 WL 1805340 (per curiam). Here, appellant has not sustained his burden, as his argument on this point is nothing more than a conclusory allegation that the State’s comments during closing arguments were “highly prejudicial and improper.” Accordingly, appellant has not demonstrated that counsel was ineffective or that he was prejudiced as a result.
As his fifth point on appeal, appellant argues that the circuit court erred in denying postconviction relief where counsel “abandoned” him during the appellate process and failed to perfect an appeal. However, appellant acknowledged in his petition that counsel filed a |9notice of appeal on his behalf. Appellant did, in fact, perfect an appeal and was represented by different counsel on appeal, so he cannot show that he was prejudiced by any failure of trial counsel in this regard. Because appellant’s argument on this point is wholly lacking proof of prejudice, it falls short of meeting the two-pronged Strickland standard for ineffective assistance of counsel, and, thus, we cannot say that the circuit court erred in denying relief on this point.
Appellant next argues that the circuit court erred in denying relief on his claim that counsel was ineffective in failing to adequately prepare or “investigate the issues of the case,” failing to communicate with appellant in preparation of trial, and failing to contact witnesses identified by appellant. In its order denying postcon-viction relief, the circuit court found that appellant appeared in court with counsel on nine separate occasions prior to trial and ruled that appellant’s allegation regarding a lack of communication was con-clusory, as appellant failed to state what further communication with counsel would have produced and also failed to state how his counsel’s level of communication prejudiced the outcome of the case. The circuit court further found that appellant’s petition failed to identify the witnesses that he contended counsel should have called and also failed to show prejudice as a result of counsel’s failure to call such witnesses. We agree.
The burden is on the petitioner to demonstrate how a more searching pretrial investigation would have changed the results of trial. Watson v. State, 2012 Ark. 27, 2012 WL 234634 (per curiam). Appellant did not set forth any facts in the petition to demonstrate that, had counsel performed - further investigation or engaged in further attorney-client communication, he | mcould have presented any additional witnesses or evidence so as to change the result of the trial. The petition contained only the conclusory statement that counsel neglected to perform an investigation or to communicate with appellant until one week prior to trial. Such conclusory statements cannot form the basis of postconviction relief. Id.
Regarding appellant’s claim that counsel did not contact witnesses identified by appellant, as we previously noted, a petitioner claiming ineffective assistance of counsel for failure to call a witness, must name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Smith, 2010 Ark. 137, 361 S.W.3d 840. Appellant failed to do so.
Finally, appellant argues that the circuit court erred in denying relief on his claim that counsel was ineffective in failing to challenge the jury-selection process. In his petition, appellant alleged that had counsel raised the issue, he could have shown that the jury pool did not constitute a fair cross-section of the community and that African Americans were excluded from the pool. The circuit court denied appellant’s claim as conclusory, as he did not offer any proof to substantiate his allegation.
The State may not deliberately or systematically deny to members of a defendant’s race the right to participate, as jurors, in the administration of justice. Gwathney v. State, 2009 Ark. 544, 381 S.W.3d 744; Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007). However, there is no requirement that the jury actually seated in a defendant’s ease mirror the community and reflect the various distinctive groups of the population. Thomas v. State, 370 Ark. 70, 257 S.W.3d 92 (2007).
In the instant case, appellant does not provide any proof that African Americans were systematically excluded from the jury pool or that the selection process was skewed to exclude African Americans. Thus, appellant’s allegations are concluso-ry and insufficient to overcome the presumption that counsel was effective. See Carter v. State, 2010 Ark. 231, 364 S.W.3d 46 (per curiam). Accordingly, the circuit court did not err in denying relief on this point.
For these reasons, we affirm the circuit court’s denial of postconviction relief on all points.
Affirmed.
. Appellant was convicted of four counts of delivery of cocaine, three counts of delivery of marijuana, one count of possession of cocaine with intent to deliver, one count of possession of marijuana with intent to deliver, and one count of simultaneous possession of drugs and firearms.
. Appellant makes no argument on appeal regarding the denial of his motions for an evidentiary hearing and to appoint counsel. Therefore, we need not address those issues, as they have been abandoned for purposes of appeal. See Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844.
. Further, as the circuit court noted in its order, the record reflects that appellant appeared in court with counsel on several occasions to attend omnibus and pretrial hearings. | [
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WOOD, J.
Appellant’s intestate was twice married. Her first husband was named Smith, by whom she had appellee. Her second husband was named Bell by whom she had several children, who are adults and all living.
After the death of Bell in the year 1910, Mrs. Bell lived on the home farm, her son Zeph Bell residing with her for two years. In the fall of 1912 she bought a small home in Siloam Springs and lived there until her death. Zeph Bell, after a few years, moved away. Mrs. Bell received the rents from the home farm until she died.
Appellee’s father died when he was small and after his father’s death he continued to live with his mother, making the Bell home his home until he married, after which he moved away with his family for three or four years. The wife and two children of the appellee left him and he had no knowledge of their whereabouts for twenty years. After this separation from his wife and children appellee returned and lived with his mother and Bell until Bell died and then he moved with his mother to the place she purchased in town in August, 1917. Appellee had no property of his own. After his mother moved to town he would occasionally work in the harvest fields of Kansas and work at odd jobs at other places, but had no regular occupation. When appellee was at home with his mother he assisted around the house, in the garden,' cutting wood, and assisting in washing and doing other household duties. After the death of Bell, Mrs. Bell drew a pension of $12 per month. This with the rents from the farm was the sole income. At the time of her death she had notes and cash amounting to $529.44 and the home she lived in. In the latter part of her life she was afflicted with rheumatism and some months before her death she had three attacks, the last resulting fatally. On the occasion of the second of these attacks, her daughter, Mrs. Mills, who was residing in Missouri, came down and nursed her mother and when she returned to her home left a hired woman to look after her mother. During the last attack she returned to her mother’s bedside and nursed her until she died. At that time the two other children were present.
The home in town was bought with money which Mrs. Bell derived from the estate of her last husband.
After the death of Mrs. Bell the appellant was appointed administrator and the appellee through his attorney presented to the administrator his claim as follows :
“For living with and caring for deceased from January 1, 1913, to December 31, 1915, at 50c per day.......................:.........................................................$ 547.50
“From January 1, 1916, to August 23, 1917, (date of death) at $1.00 per day (she being practically helpless during this time)............... 600.00
“$1,147.50”
This claim was duly verified. The administrator refused to allow the same, and the appellee filed the claim with the probate court of Benton County. The administrator appeared in the probate court and resisted the allowance of the claim, setting out that the claim was not just and that his intestate, Irene Bell, was not indebted to the claimant in the sum stated or in any other sum. The administrator alleged that the claim for services charged for prior to the 23d day of August, 1914, was barred by the statute of limitations, which he specifically pleaded. He further claimed that the appellee practically all his life had lived with Mrs. Bell; that he was never employed to care for her at any time; that Mrs. Bell shared her home with the appellee and provided him with food, for which he paid nothing; that if he ever earned or came into possession of any money or property he used it as his own and. spent nothing in caring for or supporting his mother, Mrs. Bell.
The probate court disallowed the claim and appellee appealed to the circuit court, where upon the same issues, a jury returned a verdict in favor of the appellee in the sum of $300.
From a judgment entered in appellee’s favor is this appeal.
The appellee testified that he had been living with his mother at the time of her death about six years. Her husband, Bell, had been dead three or four years. Witness was in Kansas when his mother bought the home place. He came from Kansas to live with his mother in Arkansas. He was working for wages in the harvest fields of Kansas, earning from $3.50 to per day. He came home and from that time on lived with his mother. He helped to move his mother from the farm to Siloam Springs, and also moved his own “trunk and other traps” to his mother’s home. He always left them at her home when he worked out. When he didn’t have work he made his mother’s home his home.until his mother died. Witness lived with his step-father and mother until he was 18 or 19 years old. Witness was the only child by his mother’s first marriage. With the money witness earned he put some in provisions and in clothes for himself and helped support himself and mother. His testimony shows that he did the customary work around the premises.
Witnesses testified to the effect that while the appellee was in Kansas, Mrs. Bell told them she wrote for the appellee to come, stating that she would buy the place in town if she thought appellee would come back and live with her. After she moved to town Mrs. Bell was in poor health and during the last year of her life was not very strong. During that time there was no one else except the appellee on the place caring for her and doing her work, except during her last illness.
One of the witnesses stated that during the whole period of appellee’s living with his mother and the different work he did for her in the condition she was in, witness would not' want to wait on her for less than $1 to $2 a day. The day before the night on which appellee’s mother died, appellee went with witness fishing on the river. Every time Mrs. Bell got real sick some or all her daughters would come down.
Another witness stated that in a conversation with Mrs. Bell she spoke about not wanting to live with her son Zeph, but wanted appellee to come and take care of her and was willing to buy a home and leave it to him if he would come. Appellee did come and Mrs. Bell told witness that she wanted Louie to have the property after her death.
The above and other witnesses testified that they never heard Mrs. Bell say anything about an agreement to have appellee stay with her and pay him 50 cents per day.
There is much other testimony of the same character in the transcript, but after a careful consideration of it we have reached the conclusion that there is no testimony which under the law applicable in such cases would warrant the verdict and judgment in favor of the appellee.
The law is stated by this court in Williams v. Waldon, 82 Ark. 136-142, as follows:
“The presumption is that services rendered by members of the same family, and especially between father and son, are gratuitous. Such services are enjoined by the reciprocal duties of the family relation, and are always presumed to have been prompted by natural love, rather than by the promise or the hope of pecuniary reward. Courts are reluctant to infer a pecuniary recompense from the performance of filial or parental duties such as humanity enjoins. Hence the burden is upon him who claims a money recompense for personal services performed, whether voluntarily, or upon the request of the other, to establish a contract expressed or implied, for such consideration.’’
In the case of a child rendering domestic services to a parent there can be no recovery unless there is a contract either expressed or implied to pay for such services. Where a suit is brought by a child for services rendered the parent the burden is upon the child to prove that they were of such extraordinary character that the parent would not expect a child under the circumstances to render such services without compensation. They must be of a nature that they could not be attributed to any filial duty or obligation.
There is no evidence of a substantial character which tends to show that the services rendered by the appellee to his mother were different from those which a son might be reasonably expected to render his mother in the situation in which they were placed after the death of Bell and during the time- appellee continuously made his home with her, although at times temporarily absent. The services were not of the extraordinary kind from which a promise will be implied to make compensation therefor. Expressions of preference for the appellee on the part of his mother after the death of her husband, Bell, to the effect that if he would come and live with her he should not lose anything and that she expected him to get what she had at her death, would not raise an implied contract to remunerate him for the services which might well be attributed to the affection and loyalty of a dutiful son to his mother. Zimmerman v. Zimmerman, 18 Atl. 129; Reynolds v. Reynolds, 18 S. W. 517; Leidig v. Cooper, 47 Penn. St. 534; Dodson v. McAdams, 96 N. C. 149.
As we view the evidence, there being neither an expressed nor an implied contract to pay appellee for the services for which he claims, the judgment awarding him compensation for such services is erroneous.
The judgment is, therefore, reversed and the cause dismissed. | [
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MoCULLOCH, C. J.
Appellant was indicted by the grand jury of Johnson County for violation of law constituting a felony under the act of March 6, 1909, known as the statute against night-riding. Acts 1909, p. 315. Sections 1 and 3, bearing on this particular case, read as follows:
“If two or more persons shall unite, confederate or band themselves together for the purpose of doing an unlawful act in the night time, or for the purpose of doing any unlawful act while wearing any mask, white caps or robes, or being otherwise disguised, or for the purpose of going forth armed or disguised for the purpose of intimidating or alarming any person, or to do any felonious act, or if any person shall knowingly meet or act clandestinely with any such band or order, be such organization known as night-riders, black hand, white caps, or by any other name, they shall each be guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for a term not to exceed five years.
“If any person shall by means of any writing, drawing or printed matter, or by any sign or token, such as the delivery of matches or bundles of switches or other things, seek to intimidate, threaten or alarm any person, or shall knowingly be connected either in the preparation or delivery of any snch message or token, by saying or intimidating, even in the wording of any snch message, or by any signature, or by the nature of the thing left or delivered; or who shall deliver or repeat any verbal message purporting to come from any such organized band or any member or members thereof, which in its substance or nature is intended to intimidate or threaten any person, shall be deemed guilty of a felony and upon conviction shall be confined in the penitentiary for a term of not less than one or more than seven years.”
The indictment charges an offense under the last paragraph of section 3 and alleges that at the time and place named in the indictment appellant delivered to one Oberle a verbal message purporting to have come from a certain band united together for the purpose of committing in the night time trespass and arson, which message was in substance as follows: “If you don’t get out of here by next Saturday night, we will burn you out.” On the trial of the case appellant was convicted, and he prosecuted an appeal to this court.
It appears from the testimony that appellant was a coal miner at Jamestown, in Johnson County, and was a member of the local miners’ union, which said organization was the owner of a building in Jamestown at the time of this occurrence and which had been for some time occupied as a storehouse by Frank Oberle, who is a naturalized citizen of German birth. There was ill feeling against Oberle on the part of the inhabitants of that community on account of alleged statements of the latter indicating disloyalty to the government, and the proof also tends to show that for a year or two past the members of the union had been desirous of canceling the lease with Oberle for the occupancy of the building.
The verbal message in question is said to have been delivered during the forenoon of a certain Thursday, and purported to have come from a meeting of the miners’ union. The meeting had been held, according to the testimony, the night before. The testimony of Oberle and another witness was that the message was a threatening one, in substance the same as that set forth in the indictment.
Appellant testified that at the meeting on Wednesday night the local union decided to demand possession of the building from Oberle; that the union delegated to him (appellant) the duty of making the demand, and that he merely went to Oberle’s place of business the next day and made the demand. He testified that all that he said to Oberle was that he had been sent down there to give notice for the building to be vacated in three days, and that he delivered no threatening message. There was a sharp conflict in the testimony, not only as to the exact language of the message, but also as to the substance thereof. Oberle was permitted to testify, over appellant’s objection, that, on Tuesday morning preceding the occurrence above set forth, he found a written notice on his door in the following words: “Hello! you better get out by next Saturday night or we are coming to burn you out; but do not wait until the last hour. Good-bye.
There was no testimony tending to show a design on the part of appellant or any of the members of the miners’ union prior to the meeting of the union on Wednesday night to resort to violence in bringing about Oberle’s removal from the building unless the written notice posted on the door is held to be competent evidence for that purpose. Nor was there any evidence tending to show that appellant or any members of the union had anything to do with the posting of that notice. It was purely a matter of conjecture as to the identity of the person or persons who posted the notice, and there was nothing to warrant the inference that appellant or the other members of the union did it. Such being the ease, we are of the opinion that testimony as to the contents of that notice was incompetent. It was certainly prejudicial because if the jury took it into consideration at all they accepted it as corroborative of Oberle’s testimony as to the character of message which appellant delivered on Thursday morning. Of course, if there had been evidence tending to connect appellant, or those with whom he was associated in the enterprise, with the posting of this notice, it would have been competent for the purpose mentioned above, but in the absence of such testimony it made it possible for the jury to draw an inference which was not justified by the proof in the case. We have no means of determining to what extent the verdict of the jury was influenced, and the only way in which the error can be corrected is to grant a new trial.
There are other errors assigned, but they relate to matters which will not necessarily arise in the next trial, and they need not, therefore, be discussed in this opinion.
Reversed and remanded for a new trial. | [
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HART, J.
This is an appeal by a coal company from a judgment against it for damages for the negligent killing of a coal miner while at work in its mines.
The principal issue raised by the appeal is that the court erred in not directing a verdict in favor of the defendant coal company.
Key Bums was employed as a coal digger in mine No. 4 of the Central Coal & Coke Company of Hartford, Sebastian County, Arkansas, and was engaged in digging coal in room 46 on the morning he received the injuries which resulted in his death. The mine was the usual kind of a mine operated upon the room and pillar plan. A curtain was stretched across the entry for the purpose of ventilation. There was a track which led from the main track into the room where Key Burns worked. On the morning of the accident, Key Burns had filled a car with coal. In accordance with the custom he had called on the driver to take out the loaded car and place him an empty car in his room. The usual custom was that before the driver would go into the room to haul out the loaded car he would push the empty car away from the room entry a sufficient distance so that it would not interfere with the moving of the loaded car. It was the custom of the miner to assist the driver. They would push the loaded car out and the empty car in after-wards, when they could do so. If they could not do this, the driver would hitch the mule to the cars and pull them out and in with it.
Hugh Waters was the driver, and on the morning in question hitched his mule to the loaded car and pulled it out of the room. Waters and Burns had pushed the empty car beyond the curtain and beyond the switch point, leaving the empty car on the main line. This was done so that the loaded car could be pulled out without striking or interfering with the empty car. Waters then hitched the mule to the loaded car and pulled it through the curtain, stopping out on the main line after it had been placed out a sufficient distance beyond the curtain.
After stopping the loaded oar east of the curtain, Waters unhitched the mule from the loaded car and drove it along in front of the empty car. At that time the west end of the empty car was at the curtain. Waters then hitched the mule to the empty car at the switch and started to pull the empty car into the room where Key Burns worked. At the time that Hugh Waters was unhitching the mule from the loaded car and driving the mule through the curtain, Key Burns was standing at the corner by the side of the car at the switch. Immediately after starting to pull the empty ear into the room and about the time the empty car had gone through the curtain, Waters heard Burns halloo or cry out. Waters turned the mule loose and immediately went back to where Key Burns was. He found Key Burns with his back and body pushed back on two electric wires which were strung along there. The feet and head of Burns pointed south and both wires touched his body. Waters first grabbed the leg of Burns to pull him off. He was shocked by electricity and turned Burns loose. He then grabbed Burns by the pant leg and pulled him off of the wires. Burns moved on his all-fours and tried to talk and vomit but could not do so. Burns was white as a sheet and could not say a word. Waters kept talking to him, trying to get him to speak, for about ten or fifteen minutes. Waters then placed Bums on a car and had taken him down the distance of about twenty-eight rooms when he died. The rooms were about thirty feet apart. Burns was groaning all the time. Bums was standing right at the comer of the switch the last time that Waters saw him before the injury. In a few seconds thereafter Waters heard Burns halloo and jumped off the front end of the car and ran around to where Bums was lying. There was both a dead wire and a live wire strung along there. The dead wire was next to the track and was about ten or twelve inches from it. It was just nailed up to the props.
The props are posts set in the ground and extending up to the roof of the mine for the purpose of supporting it. The live wire was back of the dead wire and was about seven or eight inches from the dead wire. The two wires were parallel with each other and were about the same height from the ground. They were both nailed to the props and had no insulation. There was no plank or boxing to keep any one from coming into contact with the wire.
Another witness stated that" the dead wire was about fifteen inches, from the track, and that it was about three and a half feet from the ground; that the live wire was about ten inches further away from the track than the dead wire and that the wires were not insulated. The wires were strung along for the purpose of furnishing current to run the machines in the rooms. The dead and the live wires are really the positive and negative wires. The positive wires are the live wires and carry the current to the motor. The negative wire carries the current back to the ground or to the generator. The dead wire is the ground wire. It is connected permanently with the ground and is the same as the ground. If one with his body touches the live wire and the dead wire at the same time he will get a shock by electricity. Connecting the two wires makes the circuit. One will not receive any shock if he only touches the dead wire. The live wire in question carried from 225 to 250 volts of electricity.
In testing the sufficiency of the evidence to support the verdict, the testimony must be considered in the light most favorable to the plaintiff. Therefore it is unnecessary to abstract the evidence adduced by the defendant. It is sufficient to say that the evidence of the defendant tended to show that there was no negligence on its part and that Key Burns was guilty of contributory negligence. While it was necessary for the electric wires to be strung along there for the purpose of furnishing electricity to run the machines in the various rooms where they were placed, the testimony for the plaintiff tends to show that they might have been insulated or that a plank might have been nailed in front of them so that the servants having occasion to work near them would not come in contact with the live wire. Hence the jury was warranted in finding that the defendant was guilty of negligence in the construction and maintenance* of the wires.
It is earnestly insisted, however, that Key Burns was guilty of contributory negligence as a matter of law and that the court erred in refusing so to instruct the jury. This we consider the most serious question in the case, but under all the circumstances adduced in evidence we believe that the court was right in submitting that question to the jury.
According to the evidence adduced by the plaintiff, it was the duty of Key Burns to assist the driver in getting the loaded car out of his work room and in placing the empty one in it. The dead wire was only ten or twelve inches from the track and the wires were eight or ten inches apart. This places the live wire from eighteen to twenty-two inches from the track. The post to which the wires were attached was in a narrow space between the gob and the track, the live wire being next to the gob.
The jury might have inferred that Key Burns stepped back next to the dead wire for the purpose of getting out of the way of the moving ear and that he stumbled or his foot slipped in some way so that he fell back against the live wire and in this way received the injuries which resulted in his death. There is nothing in the record tending to indicate that he intended to commit suicide or that he purposely placed himself in contact with the live wire. It is fairly inferable that he stumbled or slipped and fell against it and in this way was injured. This view is strengthened when we consider the state of the record. The witnesses had a map of the scene of the accident before them when they testified and evidently pointed to positions on the map in describing the position of the actors at the time of the accident. This testimony was plain to the jury and showed exactly the proximity of Burns to the wires. These positions were not marked on the map so that we can follow the testimony as plainly as the jury. San Jacinto Rice Co. v. Ulrich (Tex. Civ. App.), 214 S. W. 777.
The next assignment of error is that plaintiff’s instruction No. 6 submitted issues of negligence upon which there was no proof. This contention is without merit. The complaint charged as negligence: (1) Failure to insulate the wire; (2) not protecting the wire with a plank or in some other suitable manner; (3) placing them uninsulated and unprotected too close to where the employees worked; (4) permitting the dead wire to become charged with electricity. There was testimony to sustain all these allegations except that defendant permitted the dead wire to become charged. The court by a specific instruction told the jury that there was no evidence upon which to submit this issue and that it should not consider it. The instruction complained of was in general terms, and, this issue having been withdrawn from the jury by a specific instruction, such an instruction would be considered as explaining the general instruction, and not as being contradictory to it. We do not deem it necessary to set out the instruction, and are of the opinion that the jury could not have in any wise been misled by it when read in the light of the other instruction given by the court.
It is next insisted that the court erred in giving instruction No. 8, which is as follows: “If you believe from the evidence that the defendant, Central' Coal & Coke Company, negligently constructed and maintained electric wires in its mine and negligently failed to safeguard said wires, and that said wires carried a dangerous current of electricity and that deceased in the performance of his duty was likely to come in contact with said wires, and you'further believe from the evidence that said defendant, by the exercise of ordinary care and caution, could have rendered said wires reasonably safe by insulation or by protecting said wires, if they could not be insulated, so that its employees would not, in the discharge of their duty come in contact with same, and that it in the manner alleged in the complaint failed to do so, then such failure was negligence. ’ ’
It is claimed that the instruction is erroneous because the court submitted to the jury the negligent construction and maintenance of both the live and the dead wires. We do not think that this constitutes reversible error. As we have already seen, the court specifically told the jury there was no issue of negligence on the construction and maintenance of the dead wire for it to determine. When that is considered in connection with instruction No. 8 complained of, we do not think that the jury were confused or misled by the court giving instruction No. 8. The instruction refers only to wires that carried a dangerous current of electricity, and the jury bearing in mind that the court had withdrawn from its consideration the allegation of the complaint with regard to the negligent construction of the dead wire, and had specifically stated to it that there was not sufficient evidence to sustain that allegation of negligence, could not have been misled by the court giving the instruction.
It is also alleged that the court erred in instructing the jury that the burden of proof was upon the defendant to establish its defense of assumption of risk. Assumption of risk was an affirmative defense, and the burden of proof was upon the defendant to establish it unless it was shown by the plaintiff’s own testimony. Such has been the uniform holding of this court with respect to the defense of contributory negligence, which is also an affirmative defense. Little Rock & Fort Smith Ry. v. Atkins, 46 Ark. 423; L. R. M. R. T. Ry. Co. v. Leverett, Admr., 48 Ark. 333; St. L., I. M. & S. R. Co. v. Sparks, 81 Ark. 187; St. L., I. M. & S. R. Co. v. Gilbreath, 87 Ark. 572; St. L., I. M. & S. R. Co. v. Hutchinson, 101 Ark. 424, and St. L., I. M. & S. R. Co. v. Rodgers, 118 Ark, 263.
The nest assignment of error is the court erred in refusing to give defendant’s instruction No. 8 on the contributory negligence of the deceased. We do not deem it necessary to set out the instruction. The court did give at the request of the defendant instruction No. 6, which is as follows: “The court instructs'the jury that the master is not an insurer of the safety of the employee. The master has the right to install electric wires for use in the mines, and he has a right to install them along entry ways. If the deceased, Key Burns, failed to use due care, while passing through the mine, and if his death is due solely and alone to his negligence in touching a live wire, and if it was not due to any negligence of the defendant, then the plaintiff can .not recover. ’ ’
The defendant was not entitled to two instructions on the question of contributory negligence. The one given by the court plainly submitted that question to the jury-
Finally it is insisted that the verdict is excessive. We can not agree with counsel for the defendant in his contention. It is fairly inferable from the testimony that Key Burns lived fifteen minutes after he was injured and that he endured conscious pain and suffering during that time. One of the witnesses stated that after he pulled Burns away from the wires he moved along on his all-fours and tried to talk and vomit, but could not do either; that he attempted to give Burns water and Burns would spit it back; that this continued for ten or fifteen minutes and that they then started out of the mine with Burns; that he lived until they had traversed a distance of about 800 feet. From this testimony the jury might have inferred that he was conscious and suffered great pain.
The court upheld a verdict for $5,000 in a case where the decedent lived for fifteen minutes and suffered great pain. St. L., I. M. & S. R. Co. v. Craft, 115 Ark. 483.
. We find no reversible errors in the record, and the judgment will be affirmed. | [
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McCULLOCH, C. J.
The plaintiff, Irma Wood, instituted this action in the chancery court of Jefferson County against her husband, W. L. Wood, Jr., to secure a decree for divorce and alimony. The complaint contains a prayer for allowance of attorney’s fees, suit money and temporary alimony. The defendant responded to the petition for temporary allowance, and on the hearing the court allowed the plaintiff $400 for attorney’s fees, $100 suit money, and $200 per month temporary alimony for support of herself and her child. An appeal has been prosecuted by the defendant from that allowance.
It appears from the allegations of the complaint and the testimony adduced that the parties lived together in the city of Texarkana until the month of May, 1918, when plaintiff left defendant’s home and returned to Pine Bluff, which was formerly her home, where her parents resided up to the time of their deaths-. The ground for divorce set forth in the complaint is that the defendant has been guilty of such cruel treatment of plaintiff as to render her condition intolerable, and the complaint sets forth that the cruel treatment consisted of frequent instances of abusive and contemptuous language, studied neglect and indifference and malignant ridicule “and every other plain manifestation of settled hate, alienation and estrangement, both of word and action. ’ ’
Testimony was heard by the court directed to the issue of merit in the plaintiff’s cause of action and to defendant’s financial condition with respect to his ability to respond to an allowance in favor of plaintiff. It must be conceded that the proof in the present state of the record would not be sufficient to justify a decree for divorce, for the reason that the testimony of the plaintiff was not sufficiently corroborated. It is necessary in order to warrant a temporary allowance in a wife’s suit for divorce to introduce testimony sufficient to show merit in the plaintiff’s suit (Slocum v. Slocum, 86 Ark. 469), but it is not essential that her testimony on that, question should be corroborated. A preponderance of the testimony is sufficient, and on appeal this court will not set aside an order of allowance unless it is against the preponderance of the testimony. We are of the opinion that the testimony is sufficient to show merit, as it tends to establish a cause of action for divorce under the decisions of this court. Rose v. Rose, 9 Ark. 517; Haley v. Haley, 44 Ark. 429; Kientz v. Kientz, 104 Ark. 381.
It is insisted that the chancery court is without jurisdiction for the reason that the proof fails to show that plaintiff resided in the State of Arkansas. The statute conferring jurisdiction in such cases contemplates actual and not constructive residence, as was held in Wood v. Wood, 54 Ark. 172, and Vanness v. Vanness, 128 Ark. 543, but the proof is sufficient to show that plaintiff resided in Jefferson County, Arkansas, where the suit was brought, and that she had never removed from this State, but that her absence of a few months on a visit to her sister in Mississippi was only temporary.
This brings us to a consideration of the contention of learned counsel for defendant that the allowance of the chancellor was excessive with respect to both the attorneys ’ fees and temporary alimony. It is shown that the defendant is getting a salary of $5,200 per annum as manager or superintendent of a public service corporation in the city of Texarkana; that he owns a residence of the value of from $3,000 to $5,000, mortgaged to a building and loan association, and also owns a farm now worth about $5,000, with a probable increase in value within the next year or two to $7,000 or $8,000 in value. The farm is undeveloped as yet and yields very little income. It is not shown in the record whether the allowance of $400 for attorneys’ fees was to cover the entire services in the case of the attorneys, but we assume that it was so intended, including those services to be rendered in the further progress of the case, and in this view of the matter, we can not say that the allowance is excessive. Slocum v. Slocum, supra. Neither can we say that the allowance of $200 per month to plaintiff for the support of 'herself and child is, under the circumstances, excessive. This is less than half of defendant’s monthly income, and in addition to that he has his home in Texarkana. It is true that the proof shows that defendant is spending a considerable amount annually in developing the farm and paying taxes thereon, but that is a matter of investment and not a fixed charge against his income.
It is claimed also that sums paid monthly to the ’ building and loan association as dues should be deducted from defendant’s income in considering the amount of allowance to be made, but that, too, is an investment in the way of removing an encumbrance from the home. Of course, this matter is determined at present merely as a temporary allowance and might be viewed in a different light if made permanent on a final hearing of the case. We confine ourselves now merely to a decision that under the proof adduced, the allowance is not excessive as a temporary one during the pendency of the suit for divorce. It is not contended that the allowance of $100 as suit money is excessive.
Decree affirmed. | [
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BILL H. WALMSLEY, Judge.
liThe Benton County Circuit Court denied appellants Jimmy and Jill Lewis d/b/a Downtown Towing’s application to use a portion of their property for storing wrecked and impounded vehicles. In its judgment, the trial court specifically found that the Lewises’ due-process rights were not violated. The Lewises’ sole point on appeal is that a recused board member’s continued participation in the application process deprived them of their due-process rights. We affirm.
The Lewises live in a subdivision called Meadow Wood in Siloam Springs. When the Lewises moved there in 2006, there were no protective covenants in the residential neighborhood. In December 2007, the Lewises opened Downtown Towing near their home. The evidence shows that complaints about the business began almost immediately, including multiple complaints by a neighbor, Kenneth Knight, who was later appointed as a member [¡¡of the Benton County Planning Board (Planning Board) in 2009. When the Lewises sought to use a lot on their property for temporary storage of wrecked and im pounded vehicles, they were told that they must apply for a large-scale development permit. On March 15, 2012, the Lewises submitted their application.
On April 18, 2012, the Planning Board held a Technical Advisory Committee (TAC) meeting. The meeting minutes reveal that, under a section entitled “general public comments,” Knight voiced his opposition to the Lewises’ project. Knight’s concerns were the decreased properly values it would cause, the increased traffic through the neighborhood, the nuisance created by lights and noises, and possible water contamination. Another neighbor raised similar concerns, also noting that she could see the wrecked vehicles from her home.
On May 16, 2012, the Planning Board held a public hearing. Knight was not present. Jill Lewis answered questions from the Planning Board members, and she chose to table the matter to give her more time to gather additional information to present to the Planning Board.
The Planning Board held another public hearing on June 6, 2012. Knight was present for roll call; however, the meeting minutes indicate that he recused from voting on the Downtown Towing project. Staff made several recommendations, to which the Lewises agreed. The Planning Board then opened the meeting for public comments. At least six neighbors voiced opposition to the Lewises’ proposed use of their land, including Knight. The Planning Board then voted against the Lew-ises’ proposal five to one. The Planning Board’s denial was based on the Lewises’ failure to present adequate evidence that the proposed land Ruse would be consistent and compatible with existing patterns of development in the area and because the potential nuisance mitigation measures were deemed insufficient to ensure such compatibility.
Pursuant to Ark.Code Ann. § 14-17-203(g)(£ )(A) (Repl.1998), a county quorum court may elect to act as a board of administrative appeal prior to an appeal to circuit court from a decision of the county planning board. In July 2012, the Lewises appealed to the Benton County Justice of the Peace, who appointed three justices to sit on a panel (Appeals Board) pursuant to Ark.Code Ann. § 14-17-203(g)(l)(C). The Lewises argued, in part, that Knight’s continued participation in the process after recusing due to a conflict of interest violated their due-process rights. Once again, Knight and approximately five other property owners in Meadow Wood voiced opposition to the Lewises’ proposal. The Appeals Board voted two to one to uphold the Planning Board’s decision.
The Lewises then appealed to the Benton County Circuit Court. Arkansas Code Annotated section 14-17-211 (Repl.1998) provides that, in addition to any remedy provided by law, appeals from final action taken by administrative, quasi-judicial, and legislative agencies may be taken to the circuit court. That section further provides that appeals shall be tried de novo in circuit court according to the same procedure applicable to appeals in civil actions from decisions of inferior courts, including the right of trial by jury. The parties agreed to include in the record on appeal the entire proceedings, including exhibits, before the Planning Board and Appeals Board.
At a bench trial, Jill Lewis testified that other businesses were located in the Meadow 14Wood subdivision, including a clock shop operated out of Knight’s garage. Jill stated that she was told that she and Jimmy had to apply for a permit because Knight was “pushing the issue.” Jill confirmed that Knight had registered complaints against their business in 2008 and 2012. She stated that Knight did not men tion his recusal at the TAC meeting and that Knight arrived with the woman who also spoke in opposition at that meeting. Jill testified that she did not recall whether Knight was sitting on the board at the time of her presentation at the TAC meeting. Jill stated that, although Knight announced his recusal at the June public hearing, he nevertheless participated in the public discussion.
Christopher Ryan, Director of Planning and Environmental Services, testified that Knight had announced his recusal shortly before the TAC meeting. Ryan testified that the purpose of such meetings is to determine an applicant’s intentions with regard to the proposed use of their land. According to Ryan, the TAC meeting is not a public hearing, but rather is an opportunity for the applicant to “hash out any concerns” after the staff gives its initial report and preliminary recommendations. Ryan identified an e-mail from Knight to other board members dated May 4, 2012, stating that he was recusing from the Downtown Towing project. Ryan conceded that Knight’s announcement in the e-mail was followed by his comment concerning a road leading into the towing-storage area. Ryan stated that it was normal for board members to sit with the public after they had recused from voting.
The Lewises then called Knight as a witness. Knight testified that he recused from voting on the Lewises’ project before the TAC meeting due to his conflict of interest. According to Knight, he was only voicing his opinion and concerns as a resident of Meadow 15Wood, and he noted that other residents had expressed similar concerns. Knight agreed that he referred to his six-years’ experience as chairman of the Siloam Springs Planning Commission before the Planning Board but that his fellow board members were capable of thinking for themselves. Knight pointed out that the justices on the Appeals Board had “no idea who [he was]” and simply heard what he had to say.
In its judgment denying the Lewises’ application, the trial court ruled in relevant part:
The Court finds that clearly there was a conflict of interest that Ken Knight identified that he had with Downtown Towing and the Plaintiffs. Although Ken Knight presented opposition at the TAC meeting, the TAC meeting is a preliminary meeting to determine how to proceed to the next level which would have been the hearing. Knight clearly re-cused on May 6th, 2012, and then did not participate in the May 16th hearing and did not participate in the June 6th hearing as an adjudication official but did participate as a witness and likewise did so at the appeal hearing and likewise did so today. The Court finds that although it probably could have been done differently, Knight did not abuse his discretion as a Planning Board member. Based upon the finding of this Court, the Benton County Appeal Board, and the Planning Commission Board, I find that Plaintiffs’ due process rights were not violated.
We will affirm the circuit court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Bolen v. Washington Cnty. Zoning Bd. of Adjustments, 2011 Ark. App. 319, 384 S.W.3d 33. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id.
The Lewises argue that they were deprived of due process because they did not have their case heard by a fair and impar tial tribunal from the outset of the proceedings. They maintain that Knight did not recuse until after he had tainted the entire application process. The Lewises argue that, even though Knight did not vote on their proposal, he provided | (¡testimony and opinions before his fellow board members, with whom he had ex parte communications seeking to influence them. The Lewises further assert that Knight stood to benefit personally by the decision in that he admitted having a pecuniary interest involving property values.
The Lewises cite several cases — many from other jurisdictions — but those cases are distinguishable in that the arbiter had no personal stake in the outcome of the decision and/or did not recuse from participation in the decision-making process. Here, Knight recused from voting on the Lewises’ proposal, and his participation was limited to speaking as a member of the general public and as a witness. We agree with the trial court’s observation that “it |7probably could have been done differently.” Nevertheless, the Lewises do not cite any authority to support the proposition that, even though he had recused from voting, because Knight was both a board member and a property owner, he had no right to be heard, as did his neighbors, on a matter directly impacting him and his interests. Accordingly, we cannot say that the trial court clearly erred in finding that Knight did not abuse his discretion as a board member, thereby denying due process to the Lewises.
Moreover, although the Lewises claim that Knight contaminated the entire process, we note that, with each appeal, whatever influence Knight might have had on his fellow board members became further attenuated. Knight had no connection to the justices on the Appeals Board, yet they upheld the Planning Board’s decision. The Lewises were thereafter provided with a trial de novo, meaning that the entire case was tried anew. The trial de novo was the Lewises’ opportunity to obtain an impartial decision on their application without any perceived taint resulting from Knight’s involvement, yet the Lew-ises introduced transcripts from the prior proceedings and even called Knight as a witness. The Lewises do not argue that they failed to receive a fair trial in circuit court or were denied due process when they were afforded a new trial.
Affirmed.
WOOD and BROWN, JJ., agree.
. E.g. Madden v. U.S. Assocs., 40 Ark.App. 143, 844 S.W.2d 374 (1992) (affirming circuit court's reversal of revocation of registration and licenses because appellees had no fair hearing where agency's hearing officer had ex parte discussions with department representatives); In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (reversing and holding denial of due process for Michigan Supreme Court to uphold convictions where same judge that presided at contempt hearing had also served as the ''one-man grand jury” out of which contempt charges arose); Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973) (vacating and remanding but holding that Alabama’s Three-Judge District Court was warranted in concluding that board members' pecuniary interest disqualified them from passing on issues); Borough of Youngsville v. Zoning Hearing Bd. of Borough of Youngsville, 69 Pa.Cmwlth. 282, 450 A.2d 1086 (1982) (holding reversal not necessary on basis that board member should have disqualified himself from participating in the decision because it was not alleged that member controlled or unduly influenced other board members on their votes); Antoniu v. S.E.C., 877 F.2d 721 (8th Cir.1989) (nullifying SEC proceedings against Antoniu where commissioner who participated in decision to permanently bar Antoniu from employment in securities business had given speech outlining Antoniu's case and labeling him a violator); Ark. Racing Comm'n v. Emprise Corp., 254 Ark. 975, 497 S.W.2d 34 (1973) (affirming circuit court’s finding under APA that commissioner was disqualified from participating in hearing on revocation of franchise where his comments to the public could be seen as unfavorable to one side); Bove v. Bd. of Review of City of Newport, 95 R.I. 197, 185 A.2d 751 (1962) (nullifying board action where chairman disqualified himself, requested alternate member serve as active member in his place, and did not vote but stated that he would participate "to such extent as may be required in the conduct of this hearing” because statute provided for hearing before five members, not six).
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CLIFF HOOFMAN, Justice.
1 Appellants, J-McDaniel Construction Company, Inc., John B. McDaniel, and Barbara G. McDaniel (collectively referred to as “McDaniel”), appeal from an order of the Pulaski County Circuit Court granting summary judgment in favor of appellees, Dale E. Peters Plumbing Ltd., d/b/a Dale Peters Plumbing and Irrigation (“Peters”); Robert Bostic Hauling and Excavating, Inc., d/b/a Bobby Bostic Hauling and Excavating, and Robert Bostic individually (“Bostic”); and Esquire Marble Company (“Esquire”). On appeal, McDaniel argues that the circuit court erred by dismissing its third-party claims against appellees. We have jurisdiction of this case pursuant to Ark. Sup.Ct. R. l-2(a)(7) (2013), as this is al2subsequent appeal to this court. We reverse and remand.
McDaniel began construction on a new home in Little Rock in late 2005 and hired Peters, Bostic, and Esquire as subcontractors to complete certain tasks necessary to build the home. Peters installed plumbing; Bostic performed excavation, fill, compaction, and site-preparation work; and Esquire installed a shower in the master bedroom. Susan and David Conrad (“the Conrads”) purchased the home from McDaniel on June 2, 2006. Shortly thereafter, the Conrads noticed several problems with the home, such as settlement cracks in the walls, misalignment of doors, and a foul odor in the master bathroom. The Conrads notified McDaniel, and some attempts were made by McDaniel and Peters to remedy the problems from fall 2006 through summer 2009.
After these attempts were unsuccessful, the Conrads filed a complaint in the Pulaski County Circuit Court against McDaniel on December 2, 2009, alleging negligence and breach of the implied warranties of habitability, sound workmanship, and proper construction. The Conrads later amended their complaint on November 16, 2010, to add claims of fraudulent transfer and to pierce the corporate veil of J-McDaniel Construction Company and hold Barbara and John McDaniel personally liable. The Conrads also alleged that due to an agreement with McDaniel, the statute of limitations had been tolled until December 2, 2009.
On December 23, 2009, McDaniel filed an answer and a third-party complaint against Peters and Bostic, asserting that any foundation problems with the Conrads’ home were caused by an improperly connected shower drain in the master bathroom and faulty ^excavation, fill, or site preparation. The complaint alleged breach of contract, negligence, and breach of the implied warranties of habitability, workmanlike performance, sound workmanship, and proper construction. McDaniel asked the court to enter judgment against Bostic and Peters for an amount equal to any and all liability that might be assessed against McDaniel as a result of the Conrads’ complaint. McDaniel filed an amended third-party complaint on March 1, 2011, and added Esquire as a third-party defendant, asserting that it had improperly installed a marble shower in the master bathroom of the home. McDaniel also added claims against all third-party defendants for contribution and indemnity pursuant to common law and Ark.Code Ann. § 16-61-201.
On December 10, 2010, Peters filed a cross-claim against Bostic, seeking contribution, indemnity, and apportionment of fault pursuant to Ark.Code Ann. § 16-55-201. Bostic then filed a counter cross-claim against Peters, also seeking contribution, indemnity, and the right to apportionment of fault. On December 21, 2010, Bostic filed a motion for summary judgment on Peters’s cross-claim, which the circuit court denied on March 9, 2011.
On April 20, 2011, Peters filed a motion for summary judgment, contending that it was entitled to judgment as a matter of law on the third-party complaint because the claims for negligence and for breach of contract were both barred by the statute of limitations, because McDaniel could not prove breach of a specific contractual term where the parties did not have a written contract, and because the implied warranties did not extend from McDaniel to Peters. On May 17, 2011, Bostic filed a motion for summary judgment on the third-party complaint and a motion for reconsideration of the denial of its motion for 14summary judgment on Peters’s cross-claim. Bostic argued that the claims for negligence, breach of contract, and breach of the implied warranties were time-barred; that McDaniel could not prove that Bostic had breached a specific term of the unwritten contract; that there is no implied warranty between a general contractor and a subcontractor; that equitable indemnity did not apply because this was an oral agreement without express terms; that Arkansas had abolished joint liability except in certain circumstances that were not applicable in this case; and that there is no general right to apportionment of fault. Bostic contended that because McDaniel had no valid claim against Bostic, it was also entitled to summary judgment on Peters’s cross-claim. Subsequently, Peters filed a supplemental motion for summary judgment, which incorporated Bostic’s arguments as to the third-party complaint.
On May 18, 2011, Esquire filed a motion for summary judgment, arguing that although McDaniel alleged a breach-of-contract claim against Esquire, any claim he had was for negligence; that the statute of limitations had run on any claim for negligence; that implied warranties of habitability, sound workmanship, and proper construction do not apply to the relationship between Esquire and McDaniel; that McDaniel was not entitled to indemnity where there was no express indemnity agreement; and that McDaniel was not entitled to contribution because the Civil Justice Reform Act of 2003 eliminated a claim for contribution, as a defendant is only required to pay its several share. On May 26, 2011, Peters filed a cross-claim against Bostic and Esquire, asserting that Peters was entitled to apportionment of fault, contribution, and indemnity. Both Bostic and Esquire answered the cross-claim and denied liability.
IfiA hearing was held on the motions on May 27, 2011, and on August 22, 2011, the circuit court entered an order granting Peters’s motion for summary judgment, Bostic’s motion for reconsideration of the denial of its motion for summary judgment on Peters’s cross-claim, and Esquire’s motion for summary judgment. Peters, Bostic, and Esquire were dismissed with prejudice. The court did not state its reasons for granting the third-party defendants’ respective motions. On December 19, 2011, the circuit court entered an order stating that the Conrads had settled their claims against McDaniel and that the matter was dismissed with prejudice. McDaniel filed a timely notice of appeal from the August 22 order. However, we dismissed the appeal for lack of a final, appealable order because there remained unresolved claims by McDaniel against Bostic, by Bostic against Peters, and by Peters against Esquire. See J-McDaniel Constr. Co. v. Dale E. Peters Plumbing Ltd., 2013 Ark. 177, 2013 WL 1776463.
After the appeal was dismissed, McDaniel filed a motion for reconsideration with the circuit court on June 14, 2013, arguing that the General Assembly’s enactment of Act 1116 of 2013, which amended the Uniform Contribution Among Tortfeasors Act, made it clear that a cause of action for contribution still exists subsequent to the modification of joint and several liability, contrary to the assertions of the third-party defendants in this case. McDaniel also filed a notice of resolution of the Conrads’ claims against McDaniel and an amended release and settlement agreement, wherein all claims by the Conrads against McDaniel, Bostic, Peters, and Esquire were released pursuant to payment of the settlement amount.
The circuit court did not specifically rule on McDaniel’s motion for reconsideration and entered a final order on July 2, 2013, in which it granted Bostic’s motion for summary | judgment on the third-party complaint and dismissed with prejudice all claims by McDaniel against Bostic; granted Bostic’s motion for summary judgment on the cross-claim filed by Peters and dismissed with prejudice all claims by Peters against Bostic; granted Peters’s motion for summary judgment on the third-party complaint and dismissed with prejudice all claims by McDaniel against Peters; granted Esquire’s motion for summary judgment on the third-party complaint and dismissed with prejudice all claims by McDaniel against Esquire; dismissed with prejudice all counter cross-claims by all third-party defendants against one another; reaffirmed its prior order dismissing with prejudice all claims by the Conrads against McDaniel; and dismissing with prejudice any remaining claims by any and all parties. McDaniel filed a timely notice of appeal from this order on July 30, 2013.
McDaniel argues on appeal that the circuit court erred in granting appellees’ motions for summary judgment and in dismissing its third-party complaint. Because McDaniel’s second point on appeal concerning the applicability of Act 1116 of 2013 to, this case also relates to whether its complaint was properly dismissed, these points will be discussed together.
Our law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. City of Farmington v. Smith, 366 Ark. 473, 237 S.W.3d 1 (2006). 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. Id. 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. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
In McDaniel’s third-party complaint, it alleged causes of action for breach of contract; negligence; breach of the implied warranties of habitability, workmanlike performance, sound workmanship, and proper construction; and indemnity and/or contribution. Appellees argued in their summary-judgment motions that McDaniel’s claims for breach of contract, negligence, and breach of implied warranties were time-barred because the three-year statute of limitations had expired as to these claims pursuant to ArkCode Ann. § 16-56-105. On appeal, McDaniel does not contest the dismissal of these direct claims against appellees but instead focuses its argument on its derivative claims of contribution and indemnity, contending that these claims were erroneously dismissed by the circuit court.
Under the Uniform Contribution Among Tortfeasors Act (“UCATA”), ArkCode Ann. §§ 16-61-201 et seq. (Repl.2005), which was adopted in 1941, a right of contribution exists among joint tortfeasors. See ArkCode Ann. § 16-61-202(1). “Joint tortfeasors” are defined as two or more persons who are jointly or severally liable in tort for the same injury. Ark.Code Ann. § 16-61-201. “A joint tortfeasor is not entitled to a money judgment for contribution until he or she has by payment discharged the common liability or has paid more than his or her pro rata share thereof.” Ark.Code Ann. § 16-61-202(2). However, pursuant 18to ArkCode Ann. § 16-61-207, a defendant seeking contribution in a tort action is not required to wait until he or she has paid the judgment to implead in the primary action other persons who are or may be liable to the defendant for all or part of the plaintiffs claim against the defendant. See also Ark. R. Civ. P. 14 (2013). Arkansas Code Annotated section 16-61-206 further provides that the Act does not impair any right to indemnity under existing law.
In response to McDaniel’s argument that it has a valid claim against appellees for contribution and/or indemnity due to the damages sought by the Conrads, ap-pellees first contend that this third-party claim is moot because the Conrads’ complaint against McDaniel was dismissed with prejudice by the circuit court after the Conrads had reached a voluntary settlement with McDaniel. Citing Martin Farm Enterprises, Inc. v. Hayes, 320 Ark. 205, 895 S.W.2d 535 (1995), appellees assert that the dismissal of the primary complaint renders a third-party complaint moot. However, in Martin Farm, the third-party complaint was moot because the defendant’s summary-judgment motion in the primary action was granted, and there was no longer any liability on the part of the defendant for which a derivative claim for contribution could exist. In this case, the Conrads settled their claims against McDaniel, and the complaint was dismissed at the request of these two parties. Thus, McDaniel’s third-party complaint for contribution and/or indemnity is not moot. In fact, Arkansas Code Annotated |9section 16-61-202 specifically provides for a contribution claim if or when one tortfeasor has entered into a settlement with the injured person, as long as the other joint tortfeasor’s liability to the injured person is extinguished by the settlement, which will be discussed further below.
Appellee Esquire also argues, as a preliminary matter, that McDaniel’s arguments on appeal cannot be addressed because the circuit court did not make specific findings in its order granting ap-pellees’ motions for summary judgment. However, in the case that Esquire cites for this proposition, TEMCO Constr., LLC v. Gann, 2013 Ark. 202, 427 S.W.3d 651, we declined to address the merits of several grounds for dismissal that were raised in appellees’ motion to dismiss where the circuit court had ruled on only one of the grounds in its order. Here, the circuit court made no specific findings in its order granting appellees’ motions for summary judgment and instead generally granted the motions; thus, the circuit court could have based its ruling on any of the grounds that had been raised. Under Ark. R. Civ. P. 52(a) (2013), findings of fact and conclusions of law are not necessary on decisions of motions. There is therefore no merit to Esquire’s contention that McDaniel’s arguments on appeal are not preserved due to the failure of the circuit court to make specific findings.
In their next argument in response to McDaniel’s assertion that the circuit court improperly dismissed its valid claim for contribution, appellees contend that McDaniel’s claim for contribution is no longer cognizable subsequent to the enactment of the Civil Justice Reform Act of 2003 (“CJRA”), which abolished joint liability in all civil actions. See Ark.Code Ann. § 16-55-201 et seq. (Supp.2013). Because McDaniel would be liable for only his proportionate share of fault under the CJRA, appellees argue that a claim for contribution |1(1is not necessary under the facts of this case. As support for this contention, appellees cite to this court’s opinion in St. Vincent Infirmary Med. Ctr. v. Shelton, 2013 Ark. 38, 425 S.W.3d 761, where we affirmed the circuit court’s dismissal of a third-party complaint for failure to state a claim based on the abolition of joint liability under the CJRA. However, as McDaniel argues, and as it asserted below in its motion for reconsideration subsequent to this court’s dismissal of the first appeal, the General Assembly has since passed Act 1116 of 2013, which clarified that a claim for contribution pursuant to the UCATA still exists after the 2003 enactment of the CJRA. Thus, to the extent that the holding in Shelton, supra, conflicts with the Act, it has been effectively overruled by Act 1116.
While appellees recognize the recent enactment of Act 1116, they first contend that McDaniel failed to obtain a ruling on the applicability of the Act to this case because the circuit court did not expressly rule on McDaniel’s motion for reconsideration. However, while it is well settled that a party must raise an argument below and obtain a ruling in order to preserve that specific issue for appeal, we have never required that a party obtain a ruling by the circuit court as to whether a particular case or statute offered in support of the party’s argument applies to the facts of that party’s case. See Gilliland v. State, 2010 Ark. 135, 361 S.W.3d 279 (stating that an appellant does not have to cite to specific rules to preserve an evidentiary argument for appeal but that a specific objection is necessary to apprise the trial court of the error alleged). Furthermore, we note that McDaniel cited to the UCA-TA in its complaint and that it was the appellees who asserted that the right to contribution under the UCATA had been abrogated by the passage of the CJRA. McDaniel’s citation to Act |nlH6, which clarified that the UCATA was still applicable to such claims for contribution, was offered to rebut appellees’ assertions in their motions for summary judgment and was made prior to the circuit court’s final order. As noted above, the circuit court’s grant of summary judgment was a general ruling that could have been based on any of the arguments that were raised by the parties in- their motions and responses. Thus, appellees’ argument that we may not consider the applicability of Act 1116 to this case due to the failure of McDaniel to obtain a ruling is not persuasive.
Appellees next contend that, even if the issue is preserved for appeal, Act 1116 does not control this case because the Act should not be applied retroactively. This court discussed the issue of retroactivity of legislative acts in Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710 (2007):
Generally, retroactivity is a matter of legislative intent, and unless it expressly states otherwise, we presume the legislature intends for its laws to apply only prospectively. Any interpretation of an act must be aimed at determining whether retroactive effect is stated or implied so clearly and unequivocally as to eliminate any doubt. In determining legislative intent, we have observed a strict rule of construction against retroactive operation and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only and not retroactively. However, this rule does not ordinarily apply to procedural or remedial legislation.
The strict rule of construction does not apply to remedial statutes that do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation. Procedural legislation is more often given retroactive application. The cardinal principle for construing remedial legislation is for the courts to give appropriate regard to the spirit which promoted its enactment, the mischief sought to be abolished, and the remedy proposed. Although the distinction between remedial procedures and impairment of vested rights is often difficult to draw, it has become firmly established that there is no vested right in any particular mode of procedure or remedy. Statutes which do not 1 ^create, enlarge, diminish, or destroy contractual or vested rights, but relate only to remedies or modes of procedure, are not within the general rule against retrospective operation. In other words, statutes effecting changes in civil procedure or remedy may have valid retrospective application, and remedial legislation may, without violating constitutional guarantees, be construed to apply to suits on causes of action which arose prior to the effective date of the statute.
Id. at 353-54, 266 S.W.3d at 713 (internal citations omitted).
Applying these principles to the present case, it is clear that Act 1116 was intended by the General Assembly to have retroactive effect. According to the stated purpose of the Act, which became effective on August 16, 2013,
It is the intent of the General Assembly that the rights afforded to joint tortfea-sors by this act apply with equal force after the modification of joint and several liability as provided in § 16-55-201, and that none of the rights granted to joint tortfeasors by this act, including allocation of fault and credits for settlements entered into by other joint tort-feasors, shall be denied to joint tortfea-sors.”
Act of Apr. 11, 2013, No. 1116, § 1, 2013 Ark. Acts 4345, 4346. Furthermore, the Act also states that, “This act is remedial in nature and applies to all causes of action accruing on or after March 25, 2003.” Id. § 8, 2013 Ark. Acts at 4348. Not only did the legislature expressly state that Act 1116 was to have remedial effect, the statutory provisions at issue in this case, which provide for a right to contribution, remain essentially unchanged from their prior versions. It is apparent that any changes that were made pursuant to Act 1116 were only procedural in nature, contrary to the assertions of appellees. See Steward, supra. Thus, as McDaniel argues, Act 1116 is retroactive and applicable to this case.
Based on Act 1116, McDaniel’s claim for contribution remains a valid cause of action subsequent to the enactment of the CJRA. Also, as McDaniel argued in its responses to | ^appellees’ summary-judgment motions, the right to contribution and/or indemnity is derivative in nature, and the cause of action does not accrue until one joint tortfeasor pays more than his or her share of liability. Ark.Code Ann. § 16-61-202(b). Similarly, the statute of limitations on a claim for contribution or indemnity does not begin to run until payment is made. Heinemann v. Hallum, 365 Ark. 600, 232 S.W.3d 420 (2006); Ray & Sons Masonry Contractors, Inc. v. U.S. Fidelity & Guar. Co., 353 Ark. 201, 114 S.W.3d 189 (2003). Thus, McDaniel’s derivative claims were not time-barred. While Ap-pellees argued that McDaniel does not have a valid claim for contribution because they could not be liable to the Conrads due to the running of the statute of limitations, this same argument was rejected in Schott v. Colonial Baking Co., 111 F.Supp. 13 (W.D.Ark.1953). The court in Schott stated that under the UCATA, “the common obligation contemplated by this Act is the common liability of the tortfeasors to suffer adverse judgment at the instance of the injured person, whether or not the injured person elects to impose it.” Id. at 24. Thus, even though no common liability existed at the time of the third-party claim in that case, the appellee still had a contribution action against the other joint tort-feasor. Id. Appellee Bostic argues that this case is no longer persuasive authori ty in light of the abolition of joint liability; however, Bostic cites no authority for this proposition, and in light of Act 1116, this argument is without merit.
In them final argument in response to McDaniel’s assertion that the circuit court erroneously dismissed its claim against appellees for contribution, appellees contend that under Ark.Code Ann. § 16-61-202(d), McDaniel’s settlement with the Conrads must have also extinguished their liability to the Conrads in order for the claim of contribution to survive. 114The details of the original 2011 settlement in this case were not included in the record; however, after this court’s dismissal of the parties’ first appeal, McDaniel filed a notice of resolution and an amended settlement agreement, in which the Conrads expressly released ah the appellees from further liability. Ap-pellees first argue with respect to this amended settlement agreement that it cannot be considered by this court because there was no ruling by the circuit court on this agreement. However, appellees do not indicate what relief McDaniel was requesting by filing this voluntary agreement or what ruling should have been given by the circuit court. The notice and amended agreement were filed prior to the circuit court’s final order dismissing McDaniel’s third-party complaint, and the court noted in this order that all claims by the Conrads against McDaniel had been previously dismissed with prejudice. Thus, no ruling was necessary with regard to this amended settlement agreement.
Appellees also argue that this 2013 amended settlement agreement was void because it was executed without any further consideration. In response, McDaniel asserts that the agreement expressly states that mutual consideration was provided and that “other good and valuable consideration [was] exchanged, the receipt and sufficiency of which is hereby acknowledged....” However, because the circuit court’s initial August 2011 order dismissing McDaniel’s third-party complaint was entered prior to the parties’ settlement, the issues surrounding the effect of both the original and amended settlement agreements on McDaniel’s claim for contribution were not raised in appellees’ motions for summary judgment and were not considered by the circuit court. Thus, material issues of fact remain to be decided on this issue that render the circuit court’s grant of summary judgment |1simproper.
Similarly, although appellee Bostic asserts that McDaniel made “pivotal admissions” regarding its liability for the defects in the Conrads’ home that would prevent any claims against it, McDaniel correctly argues that there are unresolved questions of fact that are raised in this regard by Peters’s cross-claim, as well as by a civil engineer who was hired to inspect the home. We therefore reverse and remand the circuit court’s dismissal of McDaniel’s contribution claim.
With regard to McDaniel’s indemnity claim, appellees contend that summary judgment was properly granted because there were no written contracts between McDaniel and the subcontractors, and thus, no express indemnity clauses. McDaniel argues, however, that a claim for indemnity can be based on an implied or quasi-contract and that equitable indemnity can also exist where there is a special relationship between the parties, such as where an indemnitor breached a duty owed to the indemnitee. See Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980). In Larson, this court explained that “[i]t has been appropriately said that the doctrine of indemnity is based upon the equitable principles of restitution which permit one who is compelled to pay money, which in justice ought to be paid by another, to recover the sums so paid unless the payor is barred by the wrongful nature of his own conduct.” Id. at 213-14, 600 S.W.2d at 12.
McDaniel admits that there were no express indemnity clauses between it and appellees in this case but argues that it had longstanding relationships with both Bostic and Peters that could give rise to implied indemnity. While McDaniel correctly notes that there are no |1(iArkansas cases holding that there is a “special relationship” between a contractor and subcontractor sufficient to form the basis of a claim for equitable indemnity, it cites cases from other jurisdictions that have found such a relationship to exist. See, e.g., First Gen. Servs. of Charleston, Inc. v. Miller, 314 S.C. 439, 445 S.E.2d 446 (1994); Noble Steel, Inc. v. Williams Brothers Concrete Constr. Co., 49 P.3d 766 (Okla.Civ.App.2002); Stonegate Homeowners Assoc. v. Staben, 144 Cal.App.4th 740, 50 Cal.Rptr.3d 709 (2006). We agree with McDaniel that unresolved questions of fact remain surrounding the extent and nature of the relationship between McDaniel and appellees and whether this relationship could give rise to a claim for equitable indemnity.
Appellees further argue that McDaniel’s voluntary settlement with the Conrads prevents it from pursuing a claim for indemnity from them. Citing Carpetland of NWA, Inc. v. Howard, 304 Ark. 420, 803 S.W.2d 512 (1991), appellees contend that the right to indemnity is extinguished when the indemnitee voluntarily settles the underlying claim and that McDaniel has the burden to prove that the settlement was made under a legal compulsion rather than made as a mere volunteer. However, as discussed above with regard to the claim for contribution, the circumstances surrounding McDaniel’s settlement and amended settlement with the Conrads were not raised in appellees’ motions for summary judgment, nor were they considered by the circuit court in its decision to dismiss the third-party complaint. Because there remain unresolved issues of fact regarding whether McDaniel has a right of indemnity against appellees under the facts in this case, we reverse and remand the circuit court’s dismissal of this claim as well.
Reversed and remanded.
. Appellee Peters also contends as part of its mootness argument that McDaniel is seeking a remedy that it would not have been entitled to if it had not voluntarily settled the lawsuit. However, Peters fails to develop this argument or to cite any authority in support, and because it is not apparent without further research that it is well taken, it will not be considered on appeal. Webb v. Bouton, 350 Ark. 254, 85 S.W.3d 885 (2002). | [
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JIM HANNAH, Chief Justice.
| ,The State brings an interlocutory appeal pursuant to Arkansas Rule of Appellate Procedure-Criminal 3 (2013) and contends that the circuit court erred in suppressing the statements of appellee Mark Wright. The State, as it must do under Rule 3, asserts in its jurisdictional statement that the correct and uniform administration of justice requires our review of this matter. We disagree and, accordingly, we dismiss the appeal.
The record reveals the following facts. On June 28, 2012, the prosecuting attorney of the Sixth Judicial District filed an information charging Wright with one count of sexual assault in the third degree, which occurred in January 2010, and one count of sexual assault in the fourth degree, which occurred in October 2009 through January 2010. The basis of the charges was that Wright, while employed as a sergeant at the Wrightsville Unit of the Arkansas Department of Correction (“ADC”) engaged in sexual intercourse and sexual contact with an inmate who was then in the custody of the Wrightsville Unit. After the ^charges had been filed, Wright filed a motion to suppress, contending that statements he had made in a recorded interview on December 21, 2011, to Special Agent Joe Pickett of the Arkansas State Police as part of the application process to be a state trooper should be suppressed because they had been made involuntarily and without his having been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The State responded, contending that when Wright gave the statements, he was not in custody and, consequently, there was no Miranda violation. The State also contended that Pickett did not take Wright’s statements “as part of an investigation into these alleged acts and offered no promises of leniency and consideration.”
Pickett was the sole witness at the July 22, 2013 suppression hearing. He testified that he administers polygraph examinations for both criminal investigations and the trooper-application process. Pickett conducted a pre-polygraph interview with Wright on December 21, 2011, in an interview at the state police headquarters in connection with Wright’s application to be a trooper. Pickett explained that the purpose of the pre-polygraph interview is to go through an applicant’s preemployment questionnaire or life history, known as “the book,” in order to make sure that it is complete and correct before the polygraph examination is administered. At the time of the interview, Wright was under investigation by the state police for his alleged crimes against an inmate. Although Pickett was aware of the investigation, he testified that he did not learn that Wright was the subject of the investigation until shortly before the pre-polygraph interview began.
Pickett video recorded the interview, and a DVD of the interview was admitted into [«¡evidence at the hearing and played for the circuit court. Pickett told Wright that the purpose of the interview was to go over Wright’s answers in the book. Pickett asked Wright if he was familiar with polygraph examinations, and Wright responded that he was familiar only with a “voice stress analyzer” because he had been “voice stressed ... about alleged ... misconduct on an inmate at ADC.” Wright then stated that an inmate claimed that he had had sex with her, and Wright denied the allegation. Pickett told Wright that the pre-polygraph interview was not a criminal investigation and that he needed to be truthful during the interview so he could pass the test — a requirement to work for the state police. Pickett then told Wright that if he had engaged in any sexual contact with an inmate, he needed to “get that out” in the pre-polygraph interview or he would not pass the polygraph test. Thereafter, Pickett reviewed with Wright a polygraph-waiver form, which Pickett said included a Miranda warning, a waiver of rights, and a statement that Wright was taking the polygraph test voluntarily. The DVD shows Wright reading and signing some papers, but there are no signed papers in the record.
After Wright had given a quick summary of his life, Pickett began to ask him questions about his answers in the book. Wright verified his answers in the book, including that he had been suspended for being late to work and that he had had sexual contact with a coworker while at work at ADC in 2009. After admitting sexual contact with a coworker, |4Wright said, “I’ll lose my job for that I guess.” Pickett responded, “No, listen man ... this doesn’t go to anybody.... This doesn’t go to your boss, and he can’t even get a copy of this. I don’t care who it is. I don’t care if he’s the governor. He ain’t gonna see it, okay. So I want you to relax about that kinda stuff all right.” Pickett then resumed asking Wright about his answers in the book, including questions such as whether Wright had ever stolen from an employer, whether his driver’s license had been suspended or revoked, whether he had ever falsified a police report, whether he had ever had debts that had been referred to a collection agency, whether his wages had ever been garnished, whether he had ever used illegal drugs, and whether he had been involved in any criminal activity.
Pickett then asked Wright if there was any “other activity” that might be criminal in nature or might affect the polygraph examination and told Wright that he had to tell the truth about those things if he wanted to pass the polygraph. Pickett told Wright to start with what he had been accused of, and Wright stated that a woman had alleged that he had had sex with her while she was an inmate at Wrights-ville. Wright stated that he did not have sex with the inmate, but that he had held her, kissed her, and “grabbed her on the ass.” Pickett asked Wright if he wanted to “put that in this book,” and Wright responded that he was probably going to lose his job. Pickett replied, “They ain’t even gonna see this book, I’m telling you. I’m telling you, this ain’t leaving this building.” Wright stated that Dexter Holmes, the trooper investigating the allegation, was “in this building,” and Pickett told Wright that the book would be locked away and that Holmes did not have keys. Wright continued to state that he was going to lose his job and his family, and Pickett continued to fitel! Wright that he was only being tested on the book. When Wright referred to the inmate’s allegation, Pickett said, ‘You think that’s what you’re here for?” Wright said, ‘Yes,” and Pickett responded, “I advise you you’re over thinking it, man.” Pickett then told Wright to put down in writing what he had told him because the “failure to answer all questions in this book and those asked in part of your [polygraph] examination completely and honestly will result in your removal from the hiring process.” When Wright expressed concern about writing down what he had told Pickett, Pickett said, “What’s the difference between putting it on paper and saying it out loud? ... What’s done is done ... We can either move forward or we can just stop.” Wright replied, “No, I don’t want to stop, but I still want to have somewhere to work.”
Pickett then told Wright that he was going to leave the room for ten or fifteen minutes to give Wright time to decide whether he wanted to continue with the hiring process. Pickett encouraged Wright to continue and stated that he should put in writing what he had said about the incident involving the inmate. Wright stated that, while he did not want to give up, he also did not want to go to jail. Pickett told Wright that he was not taking him to jail, only seeking to give him a polygraph examination. Pickett again stated that he was leaving the room and told Wright to write in the book if he wanted to, but if he did not write in the book, the hiring process was over. Pickett then left the room for several minutes.
While Pickett was gone, Wright began writing in the book. When Pickett returned to the interview room, he told Wright that he had reviewed the inmate’s statement and that she had alleged that Wright had pulled her into a closet in the infirmary. Wright stated, “I’m | agoing to lose my job when I ... write this statement, but I never pulled her or raped her or anything like that,” and added that, “with the ADC policy, it is considered rape, no matter what.” Pickett stated that he did not care about ADC policy, and Wright continued writing.
After Wright had finished writing, Pickett asked him if the situation was as bad as the inmate had alleged, and Wright maintained that it was not rape, but he admitted that he had engaged in sexual intercourse with the inmate. Pickett then told Wright that he was going down the hall to ask a coworker whether Wright could still be tested in light of what he had said, and he told Wright not to leave the room. When Pickett returned to the room, he informed Wright that he could not be tested due to his admission. Pickett then let Wright leave the building through the lobby.
In an order entered August 5, 2013, the circuit court granted Wright’s motion to suppress. The State brings this interlocutory appeal and contends that, to the extent that the circuit court’s suppression ruling is premised on the concepts of interrogation and custody stemming from Miranda, it was wrong. According to the State, there is no Miranda issue in this case because Wright was never in custody. Alternatively, the State contends that even if Miranda is applicable, the circuit court erred in suppressing Wright’s statements because Wright had been advised of his rights under Miranda and had waived them. Finally, the State contends that, to the extent that the circuit court ruled that Wright’s statements were involuntary because they were induced by false promises or deception, the circuit court 17erred.
As a threshold matter, we must determine whether the State may appeal the circuit court’s ruling. This court has stated many times that the State’s ability to appeal is not a matter of right but limited to those cases described under Rule 3 of the Arkansas Rules of Appellate Procedure — Criminal. E.g., State v. Weather spoon, 2009 Ark. 459, at 3, 2009 WL 3162295. Pursuant to Rule 3, an interlocutory appeal on behalf of the State may be taken only from a pretrial order in a felony prosecution which (1) grants a motion under Arkansas Rule of Criminal Procedure 16.2 to suppress seized evidence, (2) suppresses a defendant’s confession, or (3) grants a motion under Arkansas Rule of Evidence 411(c) to allow evidence of the victim’s prior sexual contact. Ark. R.App. P.-Crim. 3(a). We will not consider an interlocutory appeal filed under Rule 3(a) unless the correct and uniform administration of the criminal law requires review by this court. See Ark. R.App. P.-Crim. 3(d).
As a matter of practice, our court has only taken appeals that are narrow in scope and involve the interpretation of law. E.g., Weatherspoon, 2009 Ark. 459, at 3. We do not permit State appeals merely to demonstrate that the circuit court erred. E.g., State v. Jenkins, 2011 Ark. 2, at 4, 2011 WL 143571. Moreover, this court will not accept an appeal by the State when the circuit court has acted within its discretion after making an evidentiary decision based on the particular facts of the case or even a mixed question of law and fact, as those appeals do not require interpretation of our criminal rules with widespread ramifications. Id. at 4-5; see also Weatherspoon, 2009 Ark. 459, at 3 (stating that when an appeal does not present an issue of interpretation of our criminal rules with widespread ramifications, it is not an appeal involving the correct and uniform administration of the law).
We are not persuaded by the State’s contention that a decision in this case would establish an important precedent for the correct and uniform administration of the law because the case “involves the significant issues of whether an applicant to be a law-enforcement officer is the subject of a custodial interrogation during a pre-polygraph interview, whether the provision of Miranda warnings at the outset of such an interview weighs against the admissibility of any statements during its course, and whether misleading statements by a law-enforcement officer in the course of an interrogation renders any admissions involuntary.” Rather, we agree with Wright’s contention that the issues in this appeal involve the application, not the interpretation, of laws regarding custodial interrogation, Miranda rights, and voluntary confessions. Here, the circuit court reviewed unique circumstances and decided mixed questions of law and fact. See Thompson v. Keohane, 516 U.S. 99, 112-13, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (holding that the issue of whether a person is in custody for purposes of Miranda is a mixed question of law and fact); See Jenkins, 2011 Ark. 2, at 5-6 (citing Thompson and holding that an issue involving a mixed question of law and fact is not a permissive ground for an appeal by the State); State v. Guthrie, 341 Ark. 624, 629-30, 19 S.W.3d 10, 14 (2000) (stating that this court will not assume the role of fact-finder and reevaluate the circuit court’s decision on an evidentiary matter and noting that this court will not engage in a search for error if any determination it made would not set precedent or serve as a guide in future prosecutions). Because the circuit court’s ruling in this case resulted from its review of unique circumstances and required it to decide mixed questions of law and fact, we must conclude that the correct and uniform administration of justice is not at issue. See, e.g., State v. Hart, 329 Ark. 582, 585, 952 S.W.2d 138, 139 (1997). Accordingly, we dismiss the State’s appeal.
Appeal dismissed.
. The record reveals that a transcript of the interview was “entered only for purposes of [the suppression] hearing.” The transcript states that Wright "read and signed an ASP-58 Polygraph Examination Release Form and Complete Truthfulness Statement regarding his application. The ASP-58 contains a complete Miranda Warning.” No form was introduced at the hearing.
. The State notes in its brief that, "[although it did not explicitly say so,” the circuit court "appear[ed]” to find that Wright's "statements were induced by false promises or deception, rendering them involuntary and requiring their suppression.”
. Indeed, when questioned by the circuit court at the suppression hearing about how often he interviews state-trooper applicants who have been accused of sexual misconduct, Pickett said, "This was a unique situation.” | [
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CLIFF HOOFMAN, Judge.
_jjAppellant Sheila Milton appeals the decision of the Workers’ Compensation Commission finding that she failed to prove that she was permanently and totally disabled and assigning twenty-five percent wage-loss disability. Appellee K-Tops Plastic Manufacturing Company (K-Tops) cross-appeals from the Commission’s finding that the Second Injury Fund has no liability. We affirm on direct appeal and cross-appeal.
Milton sustained a back injury on May 5, 2006, when working for K-Tops. The compensability of her injury was the subject of previous litigation, which ended with the Commission’s decision on July 8, 2009, finding that Milton had suffered a compensable back injury, was entitled to medical treatment and temporary total disability, and had sustained an anatomical impairment of twelve percent to the body as a whole. This decision was not ^appealed.
On October 8, 2010, a hearing was held before an administrative law judge (ALJ) to determine Milton’s entitlement to permanent total disability benefits or wage-loss benefits and the liability of the Second Injury Fund. Milton was a forty-nine-year-old woman who had gone to school through the seventh or eighth grade and later obtained her GED. She had no further training or degrees. Milton worked for a shoe factory off and on for more than twenty years performing manual labor. In 2003, she worked for Wal-Mart for a short period of time stocking shelves and sustained a work-related injury. In January 2005, Dr. Harry Friedman performed back surgery related to this injury. Milton testified that she recovered completely from that injury and subsequently worked at Dollar General for a few months without restrictions, aside from using “common sense.”
Milton began working for K-Tops in February 2006. On May 5, 2006, she twisted her back while pulling a cage container. She did not work after this date and ultimately had surgery in September 2006 performed by Dr. Sam Murrell. Dr. Murrell performed another surgery in March 2007. The parties stipulated that Milton reached maximum medical improvement and the end of her healing period on June 20, 2007. On that date, Dr. Murrell released Milton to light-duty work with lifting of no more than twenty pounds. Milton continued to see Dr. Mur-rell for follow-up visits and refills of her prescriptions until March 2008. After that, Milton regularly saw a family medicine doctor, Dr. James Franks.
Milton testified that since her March 2007 surgery, her back pain had worsened. She testified that her back pain was constant and that she could not do the things she used to do, |sincluding fish, hike, swim, camp, shop, cook, and watch her grandson play sports. She said that walking caused her legs to spasm and the farthest distance she walked was about 100 yards to her mailbox. She testified that she could not shop at Wal-Mart or wash dishes for more than ten minutes without her back “acting up” and requiring her to lie down. She said that she would fall if she was on her feet for very long and that she had previously hit her shoulder and head upon falling, which made her scared to walk. She limited her driving because she was afraid her leg spasms would affect her driving. She said that the heaviest thing she lifts is her pillow and that she has problems getting in and out of the bathtub. Milton had been in two car accidents since her injury, but she said that they did not affect the condition of her back. Milton said that she lies flat on her back in bed or on her couch for seven hours a day. She has not worked anywhere since her injury. She said she wanted to work but her back would not let her, and she has not tried looking for a job because she did not think anyone would hire a person in her shape. Milton said that she took numerous pain medications and had experienced side effects, including loss of memory, dizziness, inability to concentrate, and nausea. Milton’s husband, Rodney Milton, corroborated her testimony that she recovered from her 2005 surgery but has had problems since the May 2006 injury.
The ALJ found that Milton was permanently and totally disabled and that the Second Injury Fund had no liability. K-Tops appealed to the Commission, which reversed the ALJ’s finding that Milton proved she was permanently totally disabled. The Commission found that she was entitled to wage-loss disability in the amount of twenty-five percent. The Commission affirmed the finding that the Second Injury Fund was not liable. Milton now 14appeals the findings that she was not permanently totally disabled and was not entitled to more than twenty-five percent wage loss. K-Tops brings a cross-appeal, arguing that it was error to find that the Fund was not liable.
In appeals involving claims for workers’ compensation, we view the evidence in the light most favorable to the Commission’s decision and affirm the decision if it is supported by substantial evidence. Leach v. Cooper Tire & Rubber Co., 2011 Ark. App. 571, 2011 WL 4477865. Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm. Id.
Milton argues that she is no longer able to work and is entitled to permanent and total disability benefits. Pursuant to Arkansas Code Annotated section 11-9-519(e)(1) (Repl.2002), “permanent total disability means inability, because of compen-sable injury or occupational disease, to earn any meaningful wages in the same or other employment.” The burden of proof is on the employee to prove inability to earn any meaningful wages in the same or other employment. Ark.Code Ann. § 11-9-519(e)(2). Permanent total disability shall be determined in accordance with the facts. Ark.Code Ann. § 11 — 9—519(c).
When a claimant has been assigned an anatomical impairment rating to the body as a whole, the Commission has the authority to increase the disability rating, and it can find a claimant totally and permanently disabled based upon wage-loss factors. Lee v. Alcoa Extrusion, Inc., 89 Ark.App. 228, 201 S.W.3d 449 (2005). The wage-loss factor is the extent |sto which a compensable injury has affected the claimant’s ability to earn a livelihood. Id. The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant’s age, education, and work experience. Id. In considering factors that may affect an employee’s future earning capacity, the court considers the claimant’s motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant’s loss of earning capacity. Id.
The Commission stated that it gave significant evidentiary weight to the opinion of Dr. Murrell that Milton was able to perform restricted work duties. The Commission also found that “there is no probative evidence of record corroborating the claimant’s testimony that she is physically required to remain supine for extended periods up to seven hours daily.” Furthermore, the Commission found that Milton was not motivated to find appropriate gainful employment within her permanent physical restrictions.
Milton argues that the Commission erred in finding that she could work based on Dr. Murrell’s June 20, 2007 report because Dr. Murrell later said in his deposition that he would defer to a functional capacity evaluation (FCE) to determine her physical limitations. She argues that the Commission’s emphasis on this report is speculation and conjecture because an FCE was never conducted. Milton contends that if she is not found to be permanently and totally disabled, she is entitled to a sizable wage loss of more than the twenty-five percent the Commission awarded. Milton claims that this case is similar to Whitlach v. Southland Land and Development, 84 Ark.App. 399, 141 S.W.3d 916 (2004), where this court reversed the |fiCommission and held that the appellant was entitled to permanent total disability benefits. Although Whitlach’s description of his condition was similar to Milton’s testimony, in that case a doctor opined that Whitlach was permanently and totally disabled and a vocational expert found that he was unable to perform sedentary work. As K-Tops argues, no physician has indicated that Milton is permanently and totally disabled from working, and Dr. Murrell released her to return to restricted duty or sedentary employment.
Although Dr. Franks submitted a letter, dated February 22, 2010, reporting that Milton stated the side effects of her medications made her unable to work, K-Tops argues that Dr. Franks was merely restating Milton’s own estimation of her ability to work. K-Tops also notes that, despite her statements to Dr. Franks, Milton testified at her deposition that those same medications did not affect her ability to think clearly. The Commission stated that it gave minimal weight to Dr. Franks’s letter. K-Tops also argues that Milton’s testimony is not credible because there was no corroboration of her ability to perform only limited activities and no medical findings that would restrict her to lying flat on her back for seven hours a day. Furthermore, K-Tops notes differences between Milton’s deposition testimony and hearing testimony regarding her abilities to drive, walk, and work at a sit-down job. In her deposition taken January 21, 2010, Milton testified that she wanted to try to work at a sedentary job, that she was walking up to three blocks a day, and that she was lying on her back for four hours a day.
In light of Milton’s scarce attempts to return to work, her changing testimony regarding her abilities, and the lack of any opinion by a medical or vocational expert that she 17was unable to work, we hold that the Commission’s decision was supported by substantial evidence and affirm.
We now address K-Tops’s argument on cross-appeal that the Commission’s finding that the Second Injury Fund had no liability was not supported by substantial evidence. The Second Injury Fund is “designed to ensure that an employer employing a worker with a disability will not, in the event that the worker suffers an injury on the job, be held liable for a greater disability or impairment than actually occurred while the worker was in his or her employment.” St. Vincent Health Servs., Inc. v. Bishop, 2010 Ark. App. 141, 2010 WL 475315 (citing Ark. Code Ann. § 11—9—525(a)(1)). For the Fund to be liable, three hurdles must be met: 1) the employee must have suffered a compensable injury at his current place of employment; 2) prior to that injury, the employee must have had a permanent partial disability or impairment; and 3) the disability or impairment must have combined with the recent compensable injury to produce the current disability status. R.C. Landscaping v. Jones, 2010 Ark. App. 304, 374 S.W.3d 761. Here, the Commission found that “[e]ven if the claimant had a prior disability or impairment before the May 5, 2006 compensable injury, the evidence does not demonstrate that the disability or impairment combined with the recent compensable injury to produce the current disability status.”
K-Tops argues that the medical records and Dr. Murrell’s unrefuted deposition testimony establish that Milton’s 2003 injury combined with the recent compensable injury to produce the current disability status. Although Dr. Murrell testified that scar tissue formed after Milton’s previous surgery could have contributed to her symptoms, he testified that he | scould not determine within a reasonable degree of medical certainty whether her scar tissue or a recurrent herniation was causing her complaints and symptoms. He stated only that an argument could be made that there was a relationship between her continued treatment and the previous surgery. Milton testified that she completely recovered from her 2003 injury and that she attributed all of her pain and disability to the 2006 injury. Her husband corroborated these assertions. Dr. Murrell testified that even if Milton had not had the 2005 surgery, he would have assigned the same impairment rating for the procedures and treatment subsequent to the 2006 injury. We hold that there is substantial evidence to support the Commission’s finding and affirm on cross-appeal.
Affirmed.
HART and BROWN, JJ., agree. | [
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GriffiN Smith, Chief Justice.
The jury returned a plaintiff’s verdict for $390 on a complaint asking $747.10 as treble damages for wilfully cutting and removing timber. In a cross-complaint the defendants Slatton sought treble damages for $40 worth of timber they claimed the plaintiff Hill cut from their land. By failing to make an award on this item .the jury necessarily found for the plaintiff as cross-defendant, or without itemization reduced Hill’s judgment by way of a set-off.
The appellants contend (1) that the court erred in not giving certain requested instructions, (2) that the verdict is not substantially supported by the testimony, and (3) discretion was abused when a final motion for a new trial was refused in the face of allegations, affidavits and other documents not available when the cause was tried and not known to the defendants or their counsel. Insistence is that if this supplementary evidence had been before the jury it would have disproved facts upon which the verdict was predicated.
Bruce Bottoms on the south side of the Little Missouri River is low land heavily wooded in many areas. In 1943 Barto Hill purchased the southeast quarter of the northwest quarter of section 26, etc. He was unable to locate any definite markers defining the north line. Appellant Frank Slatton later acquiréd'the timber on forty acres belonging to the York heirs. The southeast corner of this land was the northwest corner of Hill’s forty. In the briefs it is stated that a fence ran east and west along the south side of the York land. J. K.. Harris owned the forty immediately north of Hill’s southeast northwest quarter and Slatton bought the timber on that tract. Lyman Slatton was named as a defendant in this suit because he cut and removed the timber.
In 1944 Hill employed Ben Nolen to cut the timber from the tract purchased by Hill a year earlier. At that time Hill, his brother, and his father were operating a small sawmill. Because Nolen could not be sure of the north line of the northeast quarter of the southwest quarter, he declined to cut the timber; whereupon appellee’s father and a brother and a third person endeavored to locate the point of division by harmonizing their lines with points they thought had been accepted for manj^ years; but, in an effort to avoid trespassing on their neighbor to the north, they went on the Watson forty to the east of the northeast southwest quarter, then walked thirty steps south in order, as they believed, to be certain not to trespass on the property to the north, then sighted due west and blazed a trail. While Harris owned the forty immediately north of Hill there was no controversy between the two.
In 1949 a group of landowners, including Hill, employed Gordon Prescott, surveyor for Hempstead county, to demark a quarter section line so that the Soil Conservation Agency could construct a drainage ditch. This line, at the time established, was supposed to be the dividing point between Hill’s forty and Slatton’s property. Hill and his brother cut timber from a narrow strip. This occurred after Slatton had purchased timber rights pertaining to the Harris forty. Slatton complained that the line established for irrigation purposes was erroneous and asked Hill to discontinue his timber operations.
In December, 1949, Gordon Prescott, then county surveyor, made a survey, starting, as he believed, from a point known to Slatton. These operations took the surveyor to a point half a mile west of the northwest corner of the southeast quarter of the northwest quarter. The measurements carried Prescott three feet north of the soil conservation line. The operations were discontinued at Slatton’s request. The contention is that Slatton then went with Prescott to what was thought to be the northwest corner of section 26. From there they measured south and arrived at a point three feet south of the soil conservation survey. Hill agreed to accept either point and abide the result of extensions for the purpose of determining his northern boundary, but Slatton refused. Five or six months later the Slattons cut the pine and oak from the disputed strip lying between the soil conservation line and the line established by Hill when Nolen, in 1944, asked that the property on which he was cutting timber be definitely outlined.
It is Hill’s contention that he went to see Slatton at his home in Pike county, complained that the timber Slat-ton was cutting was on the southeast quarter of the northwest quarter, undertook to arrive at an amicable settlement, but failed in this endeavor. After these conversations the timber was hauled away by the Slattons. Thereafter (June 12, 1951) Hill sued for compensation under the provisions of Ark. Stat’s, Sec. 50-105. Subsequently Hill employed Prescott to establish corners from which the north line of the southeast quarter of the northwest quarter could be identified. In appellee’s brief it is said that this Prescott survey with the soil conservation line, but the northeast corner was 16 feet farther west than where some one had run the line.” In the interim Hill purchased the Carrie Watson forty. Counsel for Hill state the controversy in this way: “Appellants cut the timber east up to the Prescott line between Harris and the Watson forty, and not only came south of the corners Prescott set, to haul out the timber already cut, but also cut and hauled away 1,745 more feet of oak, making 4,698 feet taken in all. Thus we see that appellants accepted Prescott’s line on the east when it was to their advantage, and ignored it on the south. ’ ’
Timber alleged by the Slattons to have been erroneously cut by Hill was, they say, taken from the northwest quarter of the northwest quarter of Section 26.
In writing an opinion such as this it is realized that lawyer, layman, or abstracter, in reading the opposing contentions, will have difficulty in understanding the physical layout without reconstructing the lines. Rough drawings and the reproduction of an aerial map are included as exhibits. The result, however, is that a factual question was presented and the jury’s findings in favor of Hill for slightly more than half of what was claimed cannot be disturbed on appeal when supported by substantial evidence, unless erroneous instructions were given.
Appellants call attention to fundamental rules for subdividing sections and cite Clark on Surveying, Sec. 371, and comments by the author, one being that “The surveyor should never allow himself to be coaxed into making a survey by a reference to one or two corners only, as it is wholly unwarranted. ’ ’ The Slattons contend that the old government surveys and field notes not available to them when the trial was had will show that Prescott’s survey is erroneous. One contention is that the government surveyors used a variation differing by two degrees from the variant used by Prescott, and that well-known points were ignored in favor of Prescott’s conclusions that in subdividing an appropriate beginning was had.
In the, motion for a new trial it was asserted that an old survey made by C. 0. Richardson would show the errors complained of in Prescott’s survey. It had been ascertained that Richardson was dead, but information was at hand showing that his son had retained field notes of the survey. Other matters were urged in support of a new trial. We think, however, that issues within the court’s discretion were presented, and that denial of the motion was not error. It is also argued that the court erred in refusing to give appellants’ instructions 1 through 7. There was no prejudice in this respect because other instructions substantially covered the issues advanced.
Affirmed.
Mr. Justice McFaddik not participating. | [
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Ward, J.
Appellant brought this suit in the lower eonrt to collect the snm of $11,500 as his commission, at five per cent, for negotiating a sale of property at 417 Main Street, in Little Bock, belonging to appellee, to William A. Stern for the snm of $230,000. The suit was based on a written contract, the material parts of which will be set out hereinafter. After a jury trial judgment was entered in favor of appellee, hence this appeal.
Appellant has brought forward many objections to the instructions given by the lower court and has ably discussed them in his brief, but we find it unnecessary to consider the merits of these objections because we are of the opinion that the lower court should have instructed a verdict for appellee. The material facts supporting the allegations in appellant’s complaint are set out below.
Appellee, who owned the said property and was seeking to sell the same for some months before appellant entered the picture, had consistently refused to give any real estate agent the exclusive right to sell the same, although more than one such agent had been trying to effect a sale. One agency, Bead-Stevens on & Dick, was trying to find a buyer and in July, 1950, it showed the property to the said William A. Stern who, on August 3,1950, made an offer of $200,000 and put up his personal check for $1,000. This offer had not been accepted by appellee, but it was still in force and the check was still being held by the agency when, on October 10, 1950, appellee gave a five-day exclusive contract to appellant which, in all material parts, reads as follows:
‘ ‘ October 10, 1950
“For and in consideration of the services rendered and to be rendered by E. J. Bodman & Co., I hereby authorize said company to negotiate a contract for an option to purchase my property described below: (property described)
“Said E. J. Bodman & Co. shall have the sole and exclusive right to negotiate for said option and sale until October 15th, 1950, and is protected in the event of sale to the parties he is negotiating with (emphasis ours) for a period of one year from date, if the property is sold to his parties (emphasis ours) provided he on or before October 15th, 1950, furnishes me with their names in written form. . . .
“The sale of this property to be sold under this option shall be for $300,000. . . .
“If option is secured and is exercised by the büyer, and sale consummated I agree to pay said E. J. Bodman & Co., the customary commission on the gross amount of the sale.
(signed) A. Brizzolara”.
On October- 11, 1950, appellant wrote appellee the following letter:
“The party that I am endeavoring to purchase the option to buy the Main Street property, Lot 5 (N41 Feet) Block 5, Original City of Little Rock is William Stern, Buyer for Pfeifers, also Sam Strauss and Leo Pfeifer.
“I will keep you posted as negotiations progress. Strauss and Stern will return to the office Friday morning.
“Yours
E. J. Bodman”.
The latter part of November, 1950, the Block Realty Company of Little Rock negotiated a sale of the property to William A. Stern for $230,000 and appellee executed a deed to Stern on the 14th of December, 1950. Appellant relies on the one year protective clause in his contract as a basis for his commission.
The undisputed proof and the proof most favorable to appellant show the following facts and circumstances leading up to the contract and regarding what happened after the five days expired and before the sale to Stern.
Appellant is and has been for several years a licensed real estate broker or agent, and he and appellee have been close personal and business friends for many years. From about 1919 until about 1933 they were officers in the same bank in Little Rock with adjoining desks. Appellant had asked appellee for an exclusive listing of the property for a period of ninety days but was refused but finally it was agreed a five day exclusive contract would be entered into and appellant wrote the one set out above and appellee signed it on the 10th day of October. Appellant had never met Stern and did not know him at that fact Stern was in New York and had been for a few days. Previous to the signing of the contract appellant had not contacted anyone regarding the purchase of this ’ property. Immediately after the contract was signed, on the same day, appellant had a conversation with Mr. Leo Pfeifer, who is Stern’s uncle by marriage, explained the terms and conditions under which the property could be bought and asked him to phone Mr. Stern who was in New York. Mr. Pfeifer did not or was not able to contact Stern. Mr. Stern returned to Little Rock on the 14th or 15th and appellant went to see him at his office on the morning of the 15th. Appellant offered Stern the property for the price of $300,000 and Stern promptly rejected the offer. Appellant told Stern that appellee had turned down $275,000 for the property [although appellee denied making any such statement to appellant] and as a result Stern called up the agency which held his $1,000 check mentioned above and had it returned to him. Almost immediately after appellant left Stern he contacted appellee and told of the result of his conversation with Stern and Stern’s reaction, and further explained to appellee that Stern needed more education about Main Street value and asked appellee to allow him to continue his negotiations, and that he believed he could educate Stern. Appellee told him to go ahead. Appellant saw Stern only one more time before the property was sold and that was in early November. On this occasion he told Stern the ‘ ‘prices of the northeast 4th & Main and the northwest of 8th & Main, Charles McCain”.
Considering the above facts and circumstances and considering the peculiar wording of the contract of Oc tober 10th, we think the only fair and reasonable interpretation to place on the contract is: (1) Appellant had a prospective buyer with whom he had been negotiating and to whom he thought he could sell the property for $300,000. It did not contemplate that appellant would attempt to sell to some prospective buyer who was already negotiating with appellee or some agency on his behalf. It is not reasonable that appellee, who at all times steadily refused to give an exclusive listing, would sacrifice his better judgment just in order to have appellant contact someone with whom he [appellee] was already negotiating. Stern had already made an offer on the property and made a deposit of $1,000. It would not be unreasonable to interpret the contract to mean that appellant had a right to negotiate with Stern [in this instance] if we also interpret it to mean that appellant could do so only for the purpose of persuading Stern to pay $300,000. This, of course, he was unable to do. In no way did appellant render any service to appellee. He did not produce Stern as a prospective buyer because Stern was already trying to buy the property when appellant first contacted him, and he was not negotiating with Stern when the contract was signed because he did not even know Stern at that time. (2) Of course if appellant cannot qualify under the five-day term of the contract he cannot avail himself of the one-year protective clause. Neither can appellant prevail on the ground that when he reported to appellee on the 15th of October, appellee extended the time for negotiations. The most this extension could amount to was to give appellant a chance to “educate” Stern, but he not only did not succeed in this but, according to appellant’s testimony, he made little if any effort to educate him.
In our opinion this case is governed by the holding in the case of Johnson v. Knowles, 169 Ark. 1089, 277 S. W. 868. The opinion was based on the following essential facts:
Mrs. Knowles, as a real estate agent, had listed for ' sale a house belonging to Johnson. By advertising in a newspaper she contacted a Mrs. Smith and showed her the house in question, but Mrs. Smith refused, to buy at that time because the house faced west. Two or three months later Mrs. Smith rented the house from Johnson and after living there one month bought the property from Johnson while it was still listed with Mrs. Knowles. The question was whether Mrs. Knowles was entitled to a commission. Among other things the court said:
‘ ‘ The sale in the present suit did not result from any act or course of conduct whatever of the plaintiff [Mrs. Knowles]. According to her own testimony she showed the house in question to Mrs. Smith, and the latter declined to purchase it because it had a west front. The plaintiff failed to sell Mrs. Smith a house across the street with an east front, because they could not agree on taking in exchange some property which Mrs. Smith owned in Oklahoma. Then the transaction so far as the plaintiff was concerned ended.
“It is true that, according to the testimony of the plaintiff, the property was still listed with her, but she had nothing whatever to do with making the sale. It may be that after Mrs. Smith had lived in a house with a west front for a while her objection to that kind of a house was removed; but, be that as it may, she had definitely declined to purchase the property when it was shown to her by the plaintiff, and the matter was closed so far as the plaintiff was concerned.”
The judgment of the lower court in favor of Mrs. Knowles was reversed and her cause of action dismissed.
It appears to us that the facts in the above case supporting Mrs. Knowles’ claim for a commission were much stronger than the facts supporting appellant’s claim in this case.
There is another reason, or perhaps it is more accurate to say there is a reason explained in a different way, why we think the lower court should have directed a verdict for appellee.
The second paragraph of the contract copied above provides, in effect, that appellant would be protected if appellee later sold the property to anyone with whom appellant was negotiating during tlae five-day period. This interpretation, it might be noted, is most favorable to appellant because it is susceptible to the meaning that appellant must be negotiating with Stern at the time the contract was signed. Taking the former interpretation, it is our opinion that the evidence does not show that appellant was negotiating with Stern during the five-day period. It is undisputed that long before appellant secured the contract from appellee Stern knew of the property, was interested in buying, and had deposited a check for $1,000 in an effort to buy at the price of $200,000 ; and it is also undisputed that the net result of the only contact appellant had with Stern during the five-day period was a flat rejection of the offer to sell him the property at $300,000.
The term “negotiations” was defined in the case of Werner v. Hendricks, et al., 121 Pa. Supr. 46, 182 A. 748. The opinion in dealing with a situation similar to the one presented here used, among other language, the following :
“Negotiation presupposes a mutual interest in the subject-matter and merely directing one’s attention without further enlisting interest or discussion falls far short of negotiations. The mere offer or solicitation, which meets with prompt refusal or rejection having no effect whatever upon the subsequent purchase of the route, cannot be regarded as negotiations within the meaning of the contract.”
The same term was considered in the case of Bullis & Thomas v. Calvert, 162 La. 378, 110 So. 621, where a real estate agent was claiming a commission of $17,500 for having negotiated with one Morgan who later purchased certain lands. The terms of the contract under which the agent claimed a commission and the attending facts are in many respects similar to those of the case before us. In denying' recovery to the agent the court summarized its reasons in this language:
“Hence our conclusion is: (1) That plaintiffs were not the first to interest Morgan in the lands which they had for sale; and (2) that plaintiffs were not negotiating with Morgan during the term of the contract (or even during' the alleged extension thereof) in such manner as to interest him as a likely purchaser thereof, or beyond the mere fact of advising him that the land was for sale but could not be purchased for the price which he deemed willing to give for it.
is our opinion that, when the contract was made, defendants had not in contemplation the payment of a commission for services no more valuable to them than the above.”
For the reasons stated above the judgment of the lower court is affirmed.
The Chief Justice and Justice McF addin dissent.
Justice Robinson not participating. | [
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MiNor W. Millwee, Justice.
Appellant is the widow of Will McKinney. She prosecutes this appeal from an order of the probate court overruling her exceptions to the amended final report of appellee, Chester Caldwell, as executor of the estate of Will McKinney, deceased.
Appellee filed his first and final report as executor on July 14,1950, and the amended final report on May 1, 1951. The only issue presented on this appeal is the correctness of the court’s allowance to appellee in the final amended report of a credit of $303.55 which ap-pellee paid, either to himself or to the Planters’ Cooperative Grin Co. of which he was secretary and treasurer, in partial satisfaction of a note and chattel mortgage made to appellee by Will McKinney in March, 1949.
The judgment appealed from recites: Court further finds that the executor at all times had in his hands and possession the property given as security under said Chattel Mortgage and that said indebtedness was paid out of said security and that neither the said Chester Caldwell nor the Planters Cooperative Gin filed or presented to the executor its claim for such indebtedness, nor did the executor file with the Court any such claim, nor was any Court order ever made authorizing the executor to retain or to pay over to the Planters Cooperative Gin the said Three Hundred and Three Dollars and Fifty-Five Cents ($303.55) or any other sum, but the Court does find that the claim was a just one, a secured one and should have been paid by the executor, and the Court now approves his action in paying and allows same in the amount of Three Hundred and Three Dollars and Fifty-Five Cents ($303.55), the allowance asked for him herein and does hereby approve said amended first and final report. ’ ’
The cause was submitted to the trial court upon the reports of appellee as executor, the exceptions thereto by appellant, certain documentary evidence, and the oral testimony given by appellee. At the outset we are confronted with the fact that the oral testimony given by appellee has not been properly brought into the transcript of the record. On the day of trial the court reporter was absent, on account of illness and the parties proceeded to trial without having the oral testimony reported. The trial court refused to approve a transcript which contained a statement prepared by appellant of the purported oral testimony. However, the trial court made a statement for the record setting out his recollection of the testimony given by appellee.
The trial court properly refused to approve the resume of appellee’s testimony tendered by appellant and appellee’s motion to strike same must be sustained. .We have repeatedly held that purported evidence, not authenticated by a bill of exceptions or brought into the record by other appropriate method, such as a bystander’s bill under Ark. Stats., § 27-1751, cannot be considered on appeal. In such cases it will be presumed that the missing evidence was sufficient to sustain the trial court’s finding and judgment. State Use, Etc., v. Leatherwood, 127 Ark. 274, 192 S. W. 218; Roth Tobacco Co. v. Layton Dept. Store, 163 Ark. 221, 260 S. W. 25.
The same rule prevails where the trial court certifies or sets out his recollection of the absent testimony. The memory of the trial court as to the purport of the absent testimony cannot be taken as a substitute for the testimony itself. Pirtle v. Southern Limber Co., 98 Ark. 266, 135 S. W. 908, Bradley Lumber Co. v. Hamilton, 109 Ark. 1, 159 S. W. 35. In the ease last cited the court said: “The chancellor might be mistaken in his recollection concerning the testimony. Therefore, the testimony itself is the only thing that can be considered. The isues in the ease could not have been determined except upon a consideration of all the testimony in the case; and whether or not the chancery court erred in its findings and decree can only be determined by a consideration of all of the evidence. Since some of the testimony that was before the chancellor has not been brought into this record, we must assume that every question of fact essential under the pleadings to sustain the decree was established by the absent evidence.”
Here the validity of the trial court’s allowance to appellee of credit for the mortgage indebtedness is a question that could only be determined by a consideration of all the evidence. Since some of the testimony that was before the trial court has not been brought into the record by any of the established methods of preserving such testimony, we must presume, under our practice, that the judgment is sustained by the missing evidence.
Appellant insists that error is apparent from the face of the record because the trial court’s order shows that appellee proceeded against the security under his chattel mortgage without probating a claim against the estate. It is argued that the effect of § 116 of the Probate Code (1951 Pocket Supp., Ark. Stats., § 62-2607) was to change the law so as to make it mandatory that a personal representative probate a secured claim against the estate. This section of the new code provides that a personal representative may establish a claim he may have against the estate by filing it with the court which shall allow it, if satisfied as to its validity after a proper hearing. This section is merely a simplified restatement of the old statute (Ark. Stats., § 62-1022). See, Committee Comment to § 62-2607, supra.
This court is committed to the rule that a mortgagee need not probate his claim against the estate of a deceased mortgagor, but is entitled to proceed under the power given in the mortgage for its satisfaction. McClure v. Owens, 32 Ark. 443; Wolff v. Perkins, 51 Ark. 43, 9 S. W. 432. This rule is bottomed on the doctrine that the wife, by marriage, does not acquire an inchoate right of dower in the personal property of her husband and he may sell, mortgage or dispose of it at his pleasure. Her right to dower in Ms personal estate does not accrue until he dies, and a chattel mortgage executed by Mm in his lifetime remains a valid lien after Ms death and takes precedence over the widow’s dower. The lien of appellee’s mortgage was, therefore, paramount to appellant’s right of dower and appellee, as a secured creditor, was not required to probate his claim against the estate but could proceed against the mortgage security to collect the debt and to account for any remaining surplus. This is the effect of the trial court’s judgment. As previously indicated, we must presume that the testimony was sufficient to support the court’s finding as to the validity of the mortgage and the proceedings by appellee in pursuing his legal remedy against the security thereunder.
The judgment of the probate court is affirmed. | [
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MiNoe W. Millwee, Justice.
The defendant was charged by information with the crime of rape. The jury found him guilty of assault with intent to rape and fixed his punishment at three years in the penitentiary.
The testimony on behalf of the State tended to show that the prosecuting witness attended a community Christmas program at Plumlee Schoolhouse with her parents and two younger sisters on the evening of December 23,1951. When the prosecuting witness left the building with a girl companion, defendant persuaded her to enter a car parked nearby. The two were later joined by defendant’s companion, Billy Joe Johnson, whose father owhed the car.
Later Johnson drove with the defendant and the prosecuting witness to a secluded place off the highway a few miles from the schoolhouse. Johnson attempted to have intercourse with the prosecuting witness and being unable to overcome her resistance, enlisted the assistance of the defendant who held the prosecuting witness by the ankles while Johnson proceeded with the criminal assault. After penetration but before completion of the sexual act, Johnson desisted when the prosecuting witness severely bit his nose. When the prosecuting witness started to run away, the two young men agreed to take her back. They let her out a short distance from the schoolhouse.
The torn and bloody clothing worn by the prosecuting witness on the night in question was introduced. Johnson virtually admitted the assault, but he and the defendant denied that the latter rendered the assistance as related by the prosecuting witness. The jury chose to believe the prosecuting witness and it was not necessary that her testimony be corroborated. Palmer v. State, 213 Ark. 956, 214 S. W. 2d 372. When the testimony is considered in the light most favorable to the State, it is sufficient to sustain the verdict and judgment. Warford & Clift v. State, 214 Ark. 423, 216 S. W. 2d 781, 8 A. L. R. 2d 996.
Defendant earnestly insists that the trial court erred in overruling a demurrer to the information. Although there is no demurrer in.the transcript and nothing to indicate the ground upon which it was based, the judgment recites the overruling of a demurrer filed by the defendant. It is now argued that the allegations of the information are insufficient to constitute a public offense in that there is no allegation that the assault was committed forcibly and against the will of the prosecu-trix. The information first charged the defendant with the crime of rape stating that, at the time and place in question, he did unlawfully and feloniously assist Billy Joe Johnson to have carnal knowledge of the prosecuting witness. The information further alleged: “The said assistance being that the said defendant did help the said Billy Joe Johnson to carry the said [prosecuting witness] to a secluded spot against her will and did hold the said [prosecuting witness’s] legs apart and still'while the said Billy Joe Johnson did have knowledge of the said [prosecuting witness] . . .”
The gist of the defendant’s contention is that although the information charges that the prosecuting witness was taken to a secluded spot against her will and that defendant unlawfully and feloniously assisted another to have carnal knowledge of her, it does not allege that the assault was committed forcibly and against her will. In State v. Peyton, 93 Ark. 406, 125 S. W. 416, an indictment for rape, which charged that the defendant did “feloniously and forcibly ravish and carnally know’’ the prosecutrix, was held sufficient on demurrer although it omitted an express allegation that the act was committed “against the will” of the female. The court said: “Of course, it must be alleged in an indictment for rape that the act was committed 'against the will’ of the female, for that is an' essential element of the crime. But the facts constituting the crime need not be charged in the precise words of the statute. If words are used which convey the same meaning, so as to charge all the essential elements of the crime, it is sufficient. ’ ’
The court also referred to the case of Beard v. State, 79 Ark. 293, 95 S. W. 995, 97 S. W. 667, in which it was said that an allegation of an “unlawful assault” necessarily implied an allegation that the act was done against the will of the assaulted female. The language of an indictment or information should charge an offense with reasonable certainty so as to put the accused on notice of the nature of the charge he is called upon to meet. Davis v. State, 131 Ark. 542, 199 S. W. 902. Ark. Stats., §. 43-1012 provides: “No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon, be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.”
In the early case of J. Johnson v. The. State, 36 Ark. 242, the indictment charged the defendant with a felony without naming the particular offense and then proceeded to set out the acts done by- him which constituted the offense. While the court said the use of the generic term felony was objectionable, it was held that the particular offense intended to be charged was made sufficiently certain by the statement of the facts and circumstances of its commission. See, also, Brust v. State, 153 Ark. 348, 240 S. W. 1079; Gurley v. State, 179 Ark. 1149, 20 S. W. 2d 886. While it is true that the terms “carnal knowledge” and “against her will” may have been grammatically misplaced in the information under examination, the specific allegation that defendant held the prosecuting witness during the commission of the assault necessarily implies that the act was done against her will and while she was resisting the assault. The specific facts alleged made plain the nature of the offense with which the defendant was charged and he is not in position to claim that he was misled or otherwise impeded in making his defense. It follows that the overruling of the demurrer did not result in prejudicial error.
Defendant also argues that the trial court erred in refusing to grant a new trial because a void petit jury list was used in Ms trial. Insofar as the record discloses defendant made no objection to the list or to any juror during the trial and the issue is raised for the first time in the motion for new trial. Evidence presented at a hearing on the motion was to the following effect: In making their selection of jurors to serve at the January, 1952, term of court, the jury commissoiners failed to certify to the lists as required by Ark. Stats., § 39-208. When the sealed lists were opened by the clerk prior to commencement of the January term, the omission of the certificate was discovered. In response to an order of the trial court, the three commissioners appeared in open court on January 2, 1952, which was several days prior to the convening of the January term. Each commissioner was examined under oath and stated that the lists opened by the clerk contained the identical names of jurors previously selected by them, that they did not certify to the lists because the form furnished did not contain a certificate and they did not know that it was necessary that the lists be certified. Following the hearing the commissioners, under directions of the court, signed and certified to the lists as previously selected by them.
Ark. Stats., § 43-1911 provides that a challenge to the jury panel shall onty be for substantial irregularity in selecting or summoning the jury or in drawing the panel by the clerk. The general rule is that irregularities affecting the selection or summoning of the jury panel may constitute ground for a new trial only if timely objection was made prior to the verdict and if resulting prejudice is shown. Hicks v. State, 143 Ark. 158, 220 S. W. 308; 23 C. J. S. Criminal Law, § 1438. Defendant’s excuse for not making a more timely objection to the selection of the jury panel is that his counsel lived in another county and did not learn of the irregularity until after the trial.
Conceding, without deciding, that defendant did not waive his right to object to the alleged irregularity, still there is no showing that any prejudice has resulted to him from the action of the court in permitting the delayed certification. It is undisputed that the sealed lists filed with the clerk contained the identical names compiled by the commissioners. The record reflects no objection by the defendant to any juror appearing on the lists and there is no contention that an incompetent, disqualified, or partial juror was forced on the defendant. No substantial rights of the defendant appear to have been in any manner effected by the alleged irregularity. It is well settled by statute and our decisions that we do not reverse a judgment for harmless and non-prejudicial errors. Bowman v. State, 93 Ark. 168, 129 S. W. 80.
There are other assignments of error in the motion for new trial which are not argued by the defendant. We have carefully considered them and find no prejudicial error.
The judgment is affirmed. | [
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Robinson, J.
The appellant herein, F. H. Johnson, traded for 280 acres of land in Columbia County, Arkansas. The deed conveying the land to Johnson re served the minerals. Johnson filed suit to enforce an alleged oral agreement by which he was to get, in the trade, a l/32nd oil and gas royalty interest in addition to the land. The Chancellor dismissed Johnson’s complaint for want of equity.
The appellee sets up three defenses: first, that the testimony is not sufficient to establish an oral contract to convey the minerals; second, that the cause is barred by the seven-year statute of limitations; -third, that the claim is barred by the statute of frauds. We hold that the evidence is not sufficient to establish an alleged contract to convey the minerals, and, therefore, it is not necessary to pass on the other issues.
A. M. Wallace, an attorney of Benton, Louisiana, at the request of appellant, Johnson, prepared the deed whereby Johnson conveyed to the appellee, then Mabel Thomas McCorley, Louisiana property in exchange for the Arkansas property. Wallace stated that Mrs. Mc-Corley came to his office along with Johnson and, at that time, stated she had agreed to convey to Johnson a tract of land in Arkansas with part of the oil royalty. The witness could not remember definitely how much royalty, but it was his recollection that Mrs. McCorley stated she agreed to convey one-half of her royalty interest. Johnson testified that Mrs. McCorley said she owned only l/16th of the royalty and was going to give him one-half thereof, or l/32nd; that she said she would make a separate deed to the royalty, but that she kept putting him off so far as the royalty was concerned. The deed he received from Mrs. McCorley reserved to the grantor and her heirs and assigns all oil, gas and other mineral rights with the right of ingress and egress for the purpose of drilling and exploring for the same.
Appellant has been in possession of the land he obtained from Mrs. McCorley since December 24, 1941, and has been clearing and cultivating the land since that time. He placed on record the deed he had received wherein the mineral rights were reserved to the grantor. Later he mentioned to the grantor about conveying the minerals.
Mrs. McCorley testified she lived in Louisiana until 1945; that a short time after she executed the deed to Johnson, he came to her house and on his departure said he thought that she was “real cruel” in not giving him a royalty deed; and that she agreed to see her aunt, Mrs. Sorrels, who was her agent. Appellee next saw Johnson at a theatre when the matter was again discussed, but she did not agree to give a royalty deed, and heard no more about the matter until 1949.
Appellant says that it was agreed that he was to receive a deed to a l/32nd oil and gas royalty. In this respect he is corroborated by his attorney. Yet, he accepted a deed specifically reserving the minerals to the grantor, placed the deed of record, and took no action to enforce the alleged agreement for about 8 years. Mrs. McCorley denies that Johnson made any contention for the minerals until the trade was made and the deeds had been executed and delivered.
“To permit deeds to be impaired and to have en-grafted upon them by parol burdens not expressed in their formal recitals may only be done by evidence so clear and convincing that reasonable minds can have no doubt that intentions of the parties were not fully expressed or that a purpose at variance with the deed’s provisions was to have been evidenced by an additional writing.” Maloch v. Pryor, 200 Ark. 380, 139 S. W. 2d 51.
Affirmed. | [
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Holt, J.
On April 11, 1949, the City Council of Harrison, Ark., passed and approved the following ordinance: “ORDINANCE NO. 404: AN ORDINANCE SUBMITTING TO THE VOTERS OF THE CITY OF HARRISON, ARKANSAS, THE QUESTION WHETHER IT WILL PURCHASE AND PLACE PARKING METERS UPON THE PUBLIC SQUARE AND OTHER STREETS. BE IT ORDAINED AND ENACTED BY THE CITY COUNCIL OF THE CITY OF HARRISON, ARKANSAS: It is hereby declared that at a special election, on the fourth Tuesday of May, 1949, of the City of Harrison, it shall he determined whether the City of Harrison, shall purchase parking meters and place the same in regular parking zones, deemed advisable; upon the City square and upon such other streets as deemed advisable, imposing the time restrictions and penalties for the violation of same; that said parking meters shall operate upon the basis of one cent for every twelve minutes of parking time, or such oilier rate or rates as may be determined by tbe City Council from time to time; that any person parking in tbe zones regulated by parking meters shall pay at tbe aforementioned rate for all time tbe automobile, truck or vehicle is parked in said zones; that all parking time,' and payment of tbe aforementioned rate, shall be governed by the parking meter registering tbe same; that all funds deposited in said parking meters shall be collected by tbe Chief of Police and deposited with tbe City Treasurer, after a true and full account has been made to him; that any person parking in any of tbe said designated zones wherein the parking meter reflects that no time is permitted by tbe parking meter by reason of tbe expiration of tbe deposit placed therein, or tbe failure to so place a deposit, shall be deemed guilty of a misdemeanor and shall be fined not less than '$1.00 nor more than $10.00.
“Section II. Said election shall be conducted and tbe votes thereat canvassed and tbe result thereof declared under the law and in tbe same manner now provided for municipal elections, and notice of said election shall be given by tbe Mayor by advertisement weekly for at least four times in some newspaper published in tbe City of Harrison, and having a bona fide circulation therein; the last publication to be not less than ten (10) days prior to the date of said election; the ballot for the said election shall be marked ‘For the purchase of parking meters by the City of Harrison, Arkansas, and placing the same upon the City square and other streets, and the doing of other things incidental and necessary for the enforcement of parking regulations thereunder. ’ ‘Against the purchase of parking meters by the City of' Harrison, Arkansas, and placing of same upon the City square and other streets, and the doing of other things incidental and necessary for the enforcement of parking regulations thereunder. ’
“That at said election only qualified voters for the City of Harrison, Arkansas, will have the right to vote, the results of said election shall be proclaimed by the Mayor by publication in some newspaper published in the said City of Harrison, and his proclamation shall ad vise the citizens and said property owners of said City that the results, as proclaimed, will be conclusive, unless attacked in the courts within thirty (30) days after the date of such proclamation.
“Section III. It is ascertained and hereby declared that the City of Harrison has inadequate parking facilities for the citizens therein and surrounding communities, and it is imperative for the safety of the public that the City of Harrison promptly create suitable facilities for parking arrangements. It is therefore declared that an emergency exists; that this ordinance is necessary for' the immediate preservation of public peace, health and safety, and that this ordinance shall be in full force and effect immediately from and after its passage.
“Approved this eleventh day of April, 1949. Guy Eaulston, Mayor. Attest: Don Riche,sin, Recorder. ’ ’
A special election was duly called for May 24, 1949 (in accordance with said ordinance) for the purpose of submitting the ordinance and the question of installation of parking meters to a vote of the people. The election was regularly held and the ordinance approved by a vote of 501 for, and 102 against.
By proclamation of the Mayor, June 14, 1949, the ordinance became effective thirty days thereafter.
On August 25, 1951, appellee, Dowell, parked his automobile in a parking zone within the city where a meter was installed and refused to place a coin in said meter in payment for the use of the parking space as provided in said ordinance. He was arrested by City police and charged (in the mayor’s court) with the offense of parking his car “at a parking meter and willfully and knowingly refused to place a coin (penny or nickel) in said meter as provided by City Ordinance No. 404, etc.” He was found guilty and a fine of $10 and costs imposed. On appeal to the Boone Circuit Court, Dowell demurred to the charge alleging, in effect, the invalidity of the ordinance. The Circuit Court treated the demurrer as a motion to quash, heard evidence, and declared appellee not guilty of the charge against him for tlie reason that the ordinance in question had not been legally enacted and therefore not effective. The judgment contained these recitals: “There is no dispute in the testimony that Ordinance No. 404 was adopted by the City Council. All of the material facts in the case are reflected by the records introduced and there is nothing else in the oral testimony which has any material bearing upon the issues.
“STATEMENT OF No. 309 of 1939 (§ 19-3504, Ark. Dig.) provides that cities and towns are prohibited from installing devices commonly known as parking meters on the streets of said cities or towns except that they may do so after adopting a local measure authorizing such installation in accordance with the provisions of the Initiated and Referendum Amendment to the Constitution of 1874. Then the Court must look to the provisions of the Initiated and Referendum Amendment to determine whether the procedure of the City Council in installing parking meters in the City of Harrison is legal. The Initiated and Referendum Amendment provides that ‘municipalities may provide for the exercise of the initiative and referendum as to their local legislation. ’ Of course, such local provisions would have to conform to the general provisions of the amendment. However, there is no record of the City of Harrison haying passed an Initiated and Referendum Ordinance. Therefore, the general provisions of the Initiated and Referendum Amendment apply. This amendment provides that the voters of the city may cause a measure adopted by the City Council to be referred to the people for voting thereon by a petition signed by at least 15% of the legal voters in the City. However, it is the opinion of the Court that measures adopted by the City Council may be referred to the people for a vote by the action of the council itself, without a petition from the people. However, the amendment contemplates that an act or measure providing for the installation and operation of parking meters will be adopted by the City Council and then by proper action of the council that act or measure shall be referred to the people at a special election to be called for that purpose. The question at such elec- tiou being for or against the adoption of the act or measure passed by the City Council.
“The record does not indicate that the City Council of Harrison ever passed an ordinance providing for the installation and operation of parking meters on the streets of the City of Harrison and submitted such ordinance to the people for their action. The City Council simply passed an ordinance calling an election to vote upon the abstract question of whether or not the electors were in favor of installing parking meters'. Ordinance No. 404 is not an ordinance providing for the installation and operation of parking meters within the City of Harrison, but is simply an ordinance calling an election to vote' upon the question and setting out in detail the provisions and conditions purposes to be enacted, provided the voters approve. Therefore, the defendant could not be charged with violating Ordinance No. 404 and the information charging him with violation of said ordinance should be dismissed, etc.”
It thus appears that the trial court held the ordinance here in question invalid for the reason that it did not appear “that the City Council of Harrison ever passed an ordinance providing for the installation and operation of parking meters on the streets of the City of Harrison and submitted such ordinance to the people for their action,” in accordance with Act 309 of 1939 above, now § 19-3504, Ark. Stats. 1947, which provides: ‘ ‘ Cities of the first and second class and incorporated towns are prohibited from installing devices commonly known as parking meters or other devices designed to require automobile owners to pay for the privilege of parking on the streets of said cities or towns. Provided, however, that any city of the first or second class or incorporated town desiring to install such devices may do so after adopting a local measure authorizing such installation in accordance with the provisions of the Initiated and Referendum Amendment to the Constitution of 1874.”
We hold that the court erred in so holding. It appears that the ordinance here is fairly comprehensive. Its terms are unambiguous and its purpose and intent appear to be plain and clear. It specifically, among other things, calls for a special election to submit the parking meter issue to a vote of the people and a vote was duly had. All procedural steps appear to have been followed except that (as indicated) on which the trial court based its judgment. We think, where, as here, but one ordinance was adopted, first by the council, and later by the people on a referendum specifically called for in the ordinance, that the ordinance was legally adopted and therefore valid, and that there was substantial compliance with Act 309.
In the case of Deaderick, Mayor, v. Parker, 211 Ark. 394, 200 S. W. 2d 787, where we held a parking meter ordinance invalid as being in violation of § 19-3504 above, we pointed out, however, that, on the agreed facts, the ordinance there in question did not by its terms call for a vote of the people on the question, we there said: “It is agreed that, prior to the adoption of said Ordinance 589, no petition of voters of the city was filed invoking the initiative upon said ordinance and no referendum petition was filed in 90 days after its adoption, nor did the ordinance by its terms call for a vote of the people on the question.”
The implication seems such is our interhad the ordinance provided for a vote of the people (and was valid in other respects) we would have declared it legally adopted, and valid.
Accordingly, the judgment is reversed and the cause remanded with directions to overrule appellee’s demurrer. | [
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RobiNsoN, J.
Appellant, P. E. Dobbs, filed suit against appellee, Southwestern Bell Telephone Company, seeking the penalty provided by statute for failure to furnish service as requested by appellant. The trial court granted appellee’s motion to dismiss the complaint after issue was joined and before any evidence was introduced. The court’s action had the same effect as sustaining a demurrer to the complaint. The complaint alleges:
“That on July 18, 1949, the plaintiff wrote a letter to the defendant company, demanding a straight line telephone or private line service, a copy of said letter being hereto attached as Exhibit ‘A’ to this complaint; that in response to prior application filed with the defendant company by the plaintiff for straight line or private line telephone service and the aforementioned letter, a representative of the defendant company called upon the plaintiff on two or three different occasions, on each occasion said representative- promised the plaintiff that the desired and requested service would be furnished within a short period of time; that notwithstanding the foregoing promises and the ten (10) days demand in writing requesting the' desired service, the defendant company has discriminated against the plaintiff and is now discriminating against the plaintiff by its failure and refusal to supply tlie requested service to the plaintiff, although said defendant company has supplied the same service to customers making application for straight line or private line telephone service subsequent to plaintiff’s application, and after the date of plaintiff’s application has supplied the same service as requested by the plaintiff'to the plaintiff’s own neighbors and customers and users in the plaintiff’s immediate and general vicinity of the City of Hot Springs. ’ ’
The letter written by appellant to appellee requesting one party line service, referred to in the complaint, is as follows: “Approximately one year ago application was filed with your office for a straight line private service, to my residence at 400 Dell Street, but as of date I am being furnished with a party line which is very unsatisfactory.
“Since there is no longer an emergency, I am now making a demand that I be furnished equal service to other users and subscribers in this vicinity. As your records will show, my next door neighbor has had a straight line pilone for some time. I, therefore, am entitled to the same kind of service and will expect same immediately, otherwise I will take the necessary steps to endeavor to get same. ’ ’
Appellee says the action of the trial court in dismissing the complaint should be sustained for three reasons: first, the demand does not give notice that appellant would ask monetary penalties; second, that appellant could not show compliance or offer of compliance with the Company’s reasonable rules and regulations; third, the appellant could not show that the Company’s failure to furnish immediate one party service was willful.
We think appellant’s allegation of discrimination was sufficiently broad to embrace the direct charge that failure to furnish the requested one party line service was willful. As to compliance with the rules and regulations of the Company, or offer to comply therewith, of course it would be a defense for the telephone company, if, upon request, the applicant for service failed to comply or offer to comply with the Company’s reasonable rules and regulations, and the defendant Company would be permitted to allege in its answer and prove that the requested service was not furnished because of the failure on the part of the applicant to abide by such rules, or offer to do so. The complaint, however, is not defective because it does not set out a compliance or offer to comply with the rules. An applicant for telephone service could hardly comply with the rules and regulations, or offer to so comply, until such time as he is informed as to the requirements thereof.
Next, appellee says the demand for one party service made by appellant did not give notice that monetary penalties would be sought, and that, since the demand is made a part of the complaint, it, therefore, shows on its face that applicant is not entitled to recover the penalty.
Ark. Stats. § 73-1816 provides: “Every telephone company doing business in this State and engaged in a general telephone business shall supply all applicants for telephone connection and facilities without discrimination or partiality within ten days after written demand therefor.” The statute requires a written demand for the requested service but it does not require the applicant to say in so many words, that, if the service is not furnished, he would attempt to recover the penalty provided by the statute for failure to furnish the service. The demand in writing in itself is notice.
In Southwestern Bell Telephone Company v. Hutton, 203 Ark. 969, 160 S. W. 2d 201, this court said: “The clear and only purpose of the requirement of the statute under which this suit was brought, that a written demand for service be made, is to put the telephone company on notice that the applicant is applying for service, and that if the same is not furnished the applicant will hold the company liable for the statutory penalty. ’ ’
A written demand for service is required by statute, but the statute does not require a warning that the appel lant will bold the Company liable for the statutory penalty.
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Griffin Smith, Chief Justice.
In consequence of an information charging rape appellant was convicted of assault with intent to commit rape and sentenced to serve three years in the penitentiary. The proceedings were heard by a careful trial judge. The motion for a new trial assigns nineteen alleged errors.
In addition to the three stereotyped contentions that the verdict is contrary to the law, contrary to the evidence, and contrary to the law and evidence, it is insisted (a) that the evidence was insufficient to sustain the charge of rape; (b) the evidence did not sustain the conviction of attempted rape, there was no showing that a crime had been committed, and it was error to overrule the challenge of a juror on the ground of implied bias; (e) before trial began the court stated that certain evidence then discussed would not be admitted if objected to; (d) clothing alleged to have belonged to the defendant was exhibited to the jury, and the same prejudice occurred when clothing of the prosecuting witness was allowed to be exhibited, a contention being that it was not in the same condition when the crime was alleged to have occurred, and that it had not been properly kept; (e) it was error to give Instructions Nos. 4, 6, 7, and 8; (f) error occurred when the court told the jury it might assess the death penalty when, as it is alleged, the jurors had not been “first so qualified”; (g) the defendant’s rights were infringed when the court failed to inform the jury, on its own motion, that if the defendant should be found guilty without a recommendation for life imprisonment, the court would be bound to assess the death penalty; (h) the court erred in refusing to allow the defendant to show the result of lie-detector tests submitted to by the defendant and the prosecuting witness, “the expert who made the tests having been in court and having the original charts, and being ready and willing to testify”; (i) it was error to allow the trial to continue in the Greenwood district when, after the state had rested, its only testimony regarding venue affirmatively showed it to be in the Ft. Smith district; and, finally, (j) it was error to instruct the jury that it might return a verdict of guilty of assault with intent to rape, when the information charged rape.
The answer to contention a is that the defendant was not convicted of rape, (b) We do not know whether the evidence was sufficient to convict, since it is not before us. A presumption of sufficiency attaches to the trial court’s action in rendering judgment. Matters alleged under subdivisions c, d, e, f, g, h, i, and j are likewise intangible in the absence of a bill of exceptions.
When instructions alleged to have been erroneously given or refused are not brought to the attention of the Supreme Court by bill of exceptions, the trial court’s actions cannot be reviewed. McFadden v. A. B. Richards Medicine Co., 170 Ark. 1011, 282 S. W. 353; nor may a motion for a new trial be used as a substitute for a bill of exceptions. Sneed v. State, 159 Ark. 65, 255 S. W. 895.
The record here shows that the verdict was returned September 14,1951. The motion for a new trial was made and promptly presented, considered, and overruled. The defendant excepted and was granted an appeal. The judgment is dated September 14. Jurisdiction on appeal was acquired November 9 (Rule 5-a) when a certified copy of the judgment was filed. The Clerk of this Court issued a writ of certiorari to bring up the record. The Circuit Clerk’s return shows that a transcript was prepared and delivered to appellant’s attorney November 8, 1951. The Circuit Clerk, therefore, was unable to forward to this Court the transcript procured for appellant and presumptively retained for satisfactory reasons.
Judgment affirmed. | [
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MiNor W. Millwee, Justice.
This is a dispute over the location of a boundary line between two residential lots in the City of Blytheville.
Appellants, T. L. Lewis and Ada Lewis, purchased Lot 75, Original Survey of the City of Blytheville, in January, 1944. At that time Lot 75 was vacant and appellee, Addie B. Houchins, owned and resided on Lot-74 which lies north of and adjacent to Lot 75.
Appellants first filed suit in August, 1944, claiming that appellee was trespassing about five feet upon the north side of their lot. After much delay and two non-suits, a trial on June 20, 1950, resulted in a directed verdict and judgment for appellants. At the request of counsel for both parties the county surveyor made a second survey of the lots. Upon submission of his findings to the trial court, the former judgment was vacated on the court’s own motion and a new trial ordered. This appeal is from a judgment for appellee following a second trial before the court sitting as a jury.
The lots in question each have a frontage of 56 feet facing west on Lake Street and the dividing line between the lots commences at a mark in the concrete sidewalk in front of said lots and runs easterly to an alley. The only issue before the court was whether the dividing line runs at right angle to Lake Street, as contended by appellants, or whether said line runs parallel with the east and west section line with a slight variance to the south, as contended by appellee.
The judgment contains findings as follows on this point: “The court finds from the evidence adduced,by the parties that the east and west lines of said lots 74 and 75 do not run at right angles from Lake Street, but run at a slight variance the same as the north line of the section, and that by running this dividing line parallel with said section line will give each lot its full 56 feet frontage on both the front and back side of said lots, or on the west and east end of said lots, and that such line running from the mark on the sidewalk back to the alley on the east side of said lots will intersect the east line of said lots at a point two feet south of the southeast corner of the defendant’s tenant house now located on the east side of lot 74.
‘ ‘ The court further finds that the block in which said lots 74 and 75 are located is full, and that each of the four lots in said block have a frontage of 56 feet on Lake Street, and a like frontage of 56 feet on the alley east of said block when the side lines to said lots run east and west with the same variance as shown for the north section line. Under the evidence the court finds for defendant. ’ ’
The common source of title to the two lots is H. T. Blythe who conveyed the property to Rebecca Simpson in 1885 under a metes and bounds description. In 1903 Rebecca Simpson conveyed the north 63 feet of the tract to appellee’s predecessors in title and the south 63 feet was conveyed to appellants’ predecessors in title. In 1905 H. T. Blythe filed in the clerk’s office a plat of the Second and Third Additions to the Town of Blytheville which shows the property as Lots 74 and 75 and as being-56 feet north and south instead of 63 feet as originally conveyed by Blythe. This plat contains a cancellation notation by the chancery clerk dated October 1, 1915, under purported authority of a chancery court order, but no such order was produced at the trial.
W. D. Cobb, who was subpoenaed by appellants but called as a witness by appellee, testified that he moved to Blytheville in 1943 and was subsequently elected county surveyor. In 1944 he made a survey and drawing of Lot 75 for appellants in connection with their application for an FHA loan from the Government. At that time he had never made a survey in that area of the city and upon inspection of the above-mentioned plat assumed that the east and west lines of the Jots ran at right angles to Lake Street, as they appeared to run on the plat, and the survey and drawing were made on that assumption. He later discovered that all of the lots in that section of the city were originally laid off parallel to the section lines as run by the original government survey, that the lots in section 15 run east and west with a slight variation to the south in line with'the north section line and did not run at right angles to the street. This discovery was confirmed by a dozen or more surveys which he had since made in the immediate area. He made a second survey of the lots at the request of counsel for both parties after the first trial. In making this survey he ran the east and west lines with the same variation or offset as the section line which put the northeast corner of Lot 75 about four and one-half feet south of a point located by running the line at right angle to the street, and instead of the line running two and one-half feet under appellee’s servant | [
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Waed, J.
This appeal challenges the obligation sought to be imposed under Act 210 of 1949 upon the City of Stuttgart to pay $200 per month salary to its municipal judge, M. F. Elms, who had been previously elected at a salary of $75 per month. M. F. Elms has died since this litigation ivas instituted and the action has been revived in the name of appellee.
Act 60 of 1927 [Ark. Stats. § 22-704] provided for the establishment of Municipal Courts and also provided that the city council might fix the salary of the judge at any sum not exceeding $3,500 per annum. • Pursuant to this act the city council of Stuttgart passed ordinance No. 335 on April 23, 1935, establishing a municipal court, with county wide jurisdiction, and fixed the salary of the judge at $900 per annum. By agreement between the city and the county the city was to receive all fines and pay the salary of the judge. M. F. Elms was duly elected municipal judge and he began serving as such on the first of January, 1949, with a salary of $900 per annum.
Act 210 of 1949 [Ark. Stats. (Supp.) § 22-704], effective as of June 10, 1949, provided that such municipal judge should receive a salary of not less than $2,400 per annum. Notwithstanding the above act Elms continued to serve as municipal judge until the last of October, 1951, at a salary of $900 a year or $75 per month. This action was brought to recover the difference of $125 per month for 28 and two-thirds the period from June 10th, 1949, to October 31, 1951. The cause was tried before the circuit judge without a jury and resulted in a judgment in favor of Elms for $3,583.32. Appellant prosecutes this appeal.
All the evidence, including the facts set forth above, was stipulated, the material portion of which is substantially as set out below:
The city of Stuttgart shall pay whatever judgment is rendered against it herein, relieving the county of any liability therefor. There has been a sufficient cash balance in the city treasury at all times to pay the increased salary, and the fines received by the city each year have been more than $2,400. “The plaintiff made no outright demand for payment of salary under provisions of Act 210 of 1949 until March 12,1951; since June 10,1949, plaintiff was paid amount of $75 per month by the City of Stuttgart, nothing by Arkansas County; these payments were made and received under no restrictions or promises by either party unless hereafter shown.” City Council minutes for March 12, 1951, reads as follows: “Municipal Judge Elms was requested increase of salary to $125 per month. City Attorney will write Attorney General.” Minutes for April 9, 1951, show that Elms stated that Ire had contacted the Attorney General and learned that said Act of 1949 required the city to pay $200 per month salary but that he did not expect that amount and would accept $125 per month. Elms has been paid $75 per month during his entire tenure in office. The city received a letter from Elms dated August 20, 1951, making demand for the full salary; the letter was called to the attention of the City Council but no action taken. Subject to the city’s objection as to competency and relevancy, a letter from the Attorney General dated March 27, 1951, was introduced in evidence stating that the city was liable for the full salary provided for in Act 210 of 1949. With reference to the minutes of the City Council mentioned above, Elms would testify they do not reflect the actual facts; that he did offer to compromise for a salary of $125 per month but the city voted on the proposal and failed to accept it, and he withdrew his offer.
Contending that the judgment of the lower court should be reversed, appellant presents its arguments under four separate heads, and we will examine them in the orde.r presented.
1.
Act 210 of 1949 is unconstitutional because it constitutes an encroachment of the legislature upon the city in the matter of finances. The argument is made that Act 210 forces the city to pay a certain sum of money each year [$2,400 for a municipal judge] and this would contravene Art. 12, § 4 of the Constitution which prohibits cities from levying taxes in excess of five mills and prohibits counties from exceeding their revenues. Act 210 requires the county to pay one-half of the judge’s salary. Several answers to the above argument are suggested by appellee, but only one will suffice. Act 210 only amends § 4 of Act 60 of 1927. Said Act 60 does not impose a municipal judge or court upon any city or county but merely provides “that any city . . . may establish a Municipal Court by passage of an ordinance by the city council . . .”
2.
Act 210 of 1949 contains a provision tliat it shall not apply to any city having a population of not less than 11,000 and not more than 11,800. Cities coming within these population limits can, by ordinance, decrease or increase the salary fixed by the act. According to the census figures pointed out by appellant only the city of Jonesboro would come within the above limits. This, says appellant, is an attempt by the legislature to the cities of Arkansas and is unconstitutional, citing, in support, Leonard et al. v. Luxora-Little River Road Dist., 187 Ark. 599, 61 S. W. 2d 70, and Webb v. Adams, 180 Ark. 713, 23 S. W. 2d 617. The Leonard case involved an attempt to distribute highway funds based on the population and number of judicial districts in certain counties. The court held this violated Amendment No. 14 because the classification was arbitrary and bore no reasonable relationship to the purpose of the act. The Webb case held unconstitutional an act which provided for an optional county unit or consolidated school system but undertook to exempt a certain school district and two counties from its provisions. It was said that proper classification is allowable in a general statute, but that classification must have regard to the character of the legislation and not be arbitrary. However the above rule regarding classification does not apply where the subject matter of the act relates to the administration of justice, as it does here. This distinction was clearly made in Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844, where it was said:
“Statutes establishing or abolishing separate courts relate to the administration of justice, and are not either local or special in their operation. Though such an act relates to a court exercising jurisdiction over limited territory, it is general in its operation, and affects all citizens coming within the jurisdiction of the court.” The headnote in Buzbee v. Hutton, 186 Ark. 134, 52. S. W. 2d 647, reads:
“Statutes establishing or abolishing separate courts relate to the administration of justice and are neither local or special in their operation.”
3.
It is nest insisted that Elms is estopped from recovery because he accepted the salary of $75 per month without objection or protest and with full knowledge of the facts. We cannot agree that estoppel applies to the facts set out above. If Elms had, with full knowledge of his rights, agreed to accept a lesser salary than that provided him by law, there is shown no consideration for such an agreement and it would not be binding. It was so stated in Duncan v. Scott County, 68 Ark. 276, 57 S. W. 934, where it was contended that the county clerk could not recover the fees allowed by law in connection with reissuing the script of that county because he had agreed with the county judge that he would make no charges. In sustaining the clerk’s claim the court used this language :
“If there was any consideration accruing to the appellant, it was an illegal one, and therefore no consideration. Otherwise, it was a mere voluntary agreement on the part of the appellant, having no binding force in law. He was by law entitled to the fees allowed by the county court, and he is estopped by no antecedent agreement to waive them. ’ ’
A contract to pay an officer more or less compensation than that fixed by law is contrary to public policy and void. This statement was approved in Cobb v. Scoggin, 85 Ark. 106, at page 111, 107 S. W. 188, and in Pulaski County v. Caple, 191 Ark. 340, at page 347, 86 S. W. 2d 4.
4.
It is finally urged that this cause should be reversed because the court allowed appellee to introduce in evidence [by stipulation] a letter from the Attorney General which contained the opinion that Act 210 was binding on the city to pay the full salary. We think there is merit in appellee’s contention that no proper objection was made to the introduction of this letter. The record does not' reveal that tlié question of its admissibility was ever presented to the conrt, or that the conrt had an opportunity to or in fact did ever pass on the question. However it is sufficient to say that the letter amounted to no more than a voluntary opinion of the law, or it might be likened to a brief amicus curiae. The judge tried the case without a jury, there is nothing to indicate he relied on the letter in reaching the conclusion he did, and it certainly contained no evidence which could have influenced his decision.
For the reasons stated above the judgment of the lower court is affirmed. | [
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Ward, J.
This suit, filed in chancery court by appellant, is an effort to enjoin the City of North Little Rock, its officials, agents and employees, from enforcing ordinance No. 2088, which ordinance was passed by the City prohibiting the maintenance, within a formerly established fire district, of businesses engaged in “junkyards, car wrecking yards, and/or storage of waste paper or rags”, and declaring said businesses to be “fire and health hazards and detrimental to the public welfare”. From an adverse decree of the lower court, appellant prosecutes this appeal.
Appellant, having been engaged for several years in handling waste paper, rags, and army suprlus materials, oil October 1st, 1950, purchased the property at 409-425 Gum Street in North Little Eock [within the fire district] for the purpose of storing waste paper in the two buildings thereon. At this time ordinance No. 2088 was not in existence. Not knowing what the City’s rules were, appellant by letter dated August 3, 1951, requested the City Clerk to issue it a permit or license to use this property for the purpose only of storing baled waste paper, rags, surplus army materials and the like. The Clerk refused the license because there was then in effect 'Ordinance No. 2063 [passed May 14, 1951] which prohibited the storing of waste paper within the fire district. Thereupon appellant filed suit to enjoin the enforcement of Ordinance No. 2063, the City answered setting out the passage of Ordinance No. 2088 on August 27, 1951, and the complaint was amended so as to join the issue on the last mentioned ordinance.
The contention of appellant here, as expressed in the brief, is that Ordinance No. 2088 is arbitrary and unreasonable and that it does not regulate but prohibit. These contentions will be discussed after setting out the material facts.
Section 1 of Ordinance No. 2088 reads as follows:
‘ ‘ That it be, and is hereby, found and declared by the City Council of the City of North Little Eock, Arkansas, that the continued opening and operating of junk jards, car wrecking yards, and/or the baling or storage of waste paper or rags within the fire district of the City of North Little Eock, Arkansas, to be fire and health hazards and detrimental to the general public welfare. Therefore, from and after the passage of this ordinance, it shall be unlawful for any person, firm or corporation to open or operate a junk yard, car wrecking yard, storage or baling of waste paper or rags facility within the limits of the Fire District of the City of North Little Eock, Arkansas, and the City Clerk shall refuse to issue license for such yards and businesses of storage or baling waste paper or rags within the above described limits; provided, however, this ordinance shall not effect businesses now operating, if already licensed.”
The fire district which was in existence at all times mentioned herein is shown on an exhibit and comprises approximately 105 blocks in North Little Rock. Appellant’s property is located in the south and west portion of the fire district, approximately one and one-half blocks north of Broadway Street and almost due north from Broadway Bridge. The evidence and picture exhibits indicate that it is located in a residential district, but do not show too clearly the number or proximity of the residences. Also close by is heavy industrial, light industrial and commercial property. The Junior High School is something like a block and one-half away. There is a brick tile and an ironclad building on appellant’s property which it proposes to use for storage, but not for baling.
It is not disputed that the storage of baled paper in these buildings would materially raise the insurance rate on the buildings, or that it would constitute a harbor for rats. Likewise it appears that the fire hazard could be reduced materially by a sprinkler system and the rat situation could be controlled to a large extent by the application of approved methods, all of which appellant proposes to install. There is now in the fire district one business engaged in baling paper and rags, and appellant has for 25 years been storing waste paper and rags in the Federal Compress which is in said district.
The fire district was formed in 1935 and has been enlarged from time to time, the last enlargement being made in 1948, and it conforms to requirements of the State Rating Bureau, the National Rating Bureau and the National Fire Protection Bureau. The Fire Chief stated that the storage of paper and rags was very dangerous from the standpoint of being a fire hazard. It was his opinion that newspapers stacked and weighted would catch fire, and the friction of the ink would cause an explosion. The chief sanitary officer for eleven years is familiar with the property and thinks a health hazard would be created because of rats, mice and roaches.
It is our opinion that Ordinance No. 2088 is not arbitrary or unreasonable, but that it is an exercise of reasonable regulation on the part of the City. It is not the province of this court to decide whether this particular property can, by the adoption of modern scientific methods of control, be made reasonably safe from the standpoint of fire and health, or that these methods can and will be maintained properly at all times by the appellant if it is allowed to conduct the kind of a business proposed here. Fire district ordinances such as this one are supposed to convey some advantages to the inhabitants of a city but this could not be so if every case like this which arises is to be decided without regard to them. Just what the significance of such ordinances and districts is will appear below.
1. Fire Districts. From McQuillin’s Municipal Corporations, 3rd Ed., Yol. 7, p. 455, under the head of ‘‘Fire Limits or Districts” we quote in part:
“Indeed, the establishment of fire limits or districts is an historic function of American local government and may well be regarded as an early and limited form or predecessor of comprehensive urban zoning. Municipal power to ordain and enforce fire limits sometimes is specifically authorized and in any event can be predicated on municipal police competency, and can be implied, it has been asserted, from the mere fact of creation of municipal corporation. ’ ’
The formation of regulatory districts has been approved many times by this court, and has never been, as such, denied to be within the powers of a municipality. See City of Little Rock et al. v. Reinman-Wolfort Automobile Livery Company, 107 Ark. 174, 155 S. W. 105.
2. Ordinance No. 2088. This ordinance was passed by the City of North Little Rock pursuant to an act of the legislature passed in 1885, the material part of which appears as Ark. Stats. § 19-2304. The parts of this section applicable here read:
“Additional powers of cities of first order to better provide for the public welfare, safety, comfort and convenience of the inhabitants of cities of the first class, the following enlarged and additional powers are hereby conferred upon said cities of the first class, viz: . . to prevent or regulate the carrying on of any trade, business or vocation of a tendency dangerous to morals, health, or safety, or calculated to promote dishonesty or crime. . .”
In this connection we call attention to the possible significance of the word “tendency” used in the above quotation.
3. Discretion in City. As indicated before the real issue here is whether the ordinance in question is arbitrary and unreasonable. In deciding this question we must take note that much is left to the discretion of the City in such matters, as we have often held. The case of City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187, dealt with this question in connection with the City’s attempt, by ordinance, to build a wall down the middle of a street for traffic protection. We quote from the opinion:
“It may be true that appellee’s property will be adversely affected, but no more so than any other proj)-erty similarly- situated.
“There can be no doubt that the city has the power and the duty to make reasonable provision for the safety of persons and property using its streets by the enactment of ordinances, resolutions or by-laws looking to that end, and that the city council or commission, or other municipal authorities have a wide discretion on such matters. The power is conferred by statute. Sections 9543, 9642 and 9702 of Pope’s Digest: Our decisions so hold. In Sander v. Blytheville, 164 Ark. 434, 262 S. W. 23, we held that ‘under the general welfare clause of Crawford & Moses’ Digest, §§ 7494-4, a city council has a broad discretion in determining what is necessary for the public welfare, safety and convenience of the city’s inhabitants.’ Syllabus 2. In the body of the opinion we said: ‘Now, there is a presumption in favor of the ordinance, and one who challenges its validity, alleging it to be arbitrary, discriminatory or unreasonable, should make it so appear by clear and satisfactory evidence.’ Citing North Little Rock v. Rose, 136 Ark. 298, 206 S. W. 449. In the more recent case of State ex rel. Latta v. Marianna, 183 Ark. 927, 39 S. W. 2d 301, after referring to the statutes above cited, we said: ‘Such are the varied rises and conflicting interests of city life that,’ as is said in Ex Parte Foote, 70 Ark. 12, 65 S. W. 706, 91 Am. St. Rep. 63: ‘Much must necessarily be left to the discretion of the mnnicipal authorities, and their acts will not be judicially interfered with unless they are manifestly unreasonable and oppressive, or unwarrantably invade private rights or clearly transcend the powers granted them. ’ ’ ’
See, also, Sanders v. Blytheville, supra.
There is also a presumption in favor of the legality and reasonableness of ordinances of this kind, as stated in Pierce Oil Corp. v. City of Hope, 127 Ark. 38, 191 S. W. 405, in these words:
“It must be, and is, conceded that the action of the council in passing ordinances of this character is presumed to be legal until the contrary is made to appear, and while the action of the council is subject to judicial review, yet in so far as a discretion abides as to the manner and extent of the use of the power conferred by the statute, that discretion is to be exercised by the council which the power is conferred, and not by the court which reviews its action, and the courts may set aside the action of the council only when they can say that the council has acted in an arbitrary or unreasonable manner.
“Every intendment is to be made in favor of the lawfulness of the exercise of municipal power making-regulations to promote the public health and safety, and it is not the province of the courts, except in clear cases, to interfere with the exercise of the power reposed by law in municipal corporations for the protection of local rights and the health and welfare of the people of the community. Dobbins v. Los Angeles, 195 U. S. 223; Dreyfus v. Boone, 88 Ark. 360. And when this is done with the ordinance in question we are unable to pronounce it void, and the decree of the court below sustaining the demurrer is, therefore, affirmed. ’ ’
4. Regulation and not prohibition. The argument is made that Ordinance No. 2088 prohibits rather than regulates, and, that prohibitory ordinances are void, citing cases. In Town of Arkadelphia v. Clark, 52 Ark. 23, 11 S. W. 957, in a brief per curiam opinion the court said an ordinance prohibiting the keeping of bees within the city limits was invalid, because it undertook to make each act a nuisance without regard to whether it was so or not, or whether bees in general have become a nuisance in the city, and was therefore too broad. The decision involved no district and no question of public health and safety. This court, in Balesh v. Hot Springs, 173 Ark. 661, 293 S. W. 14, held the city could not prohibit, but could regulate the sale of merchandise by auction. It was there recognized that the question of “public interest” was a necessary element to the validity of city regulation of lawful occupations. No case has been called to our attention which denies the right of cities, in the public welfare, to regulate legitimate business, or to exclude them from certain restricted zones, so long as the action is not arbitrary or unreasonable.
The decree of the lower court in favor of appellee held, in effect, that Ordinance No. 2088 was not arbitrary or unreasonable and that the business contemplated by appellant tended to constitute a safety and health hazard to the welfare of the people of North Little Bock; and, under the rules and decisions mentioned above, we are unable to say the decree was against the weight of the evidence, and it is therefore affirmed. | [
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Griffin Smith, Chief Justice.
The court directed a verdict against Gladys Poston Norris, who as adminis-tratrix had sued for the death of Arthur Poston. The only question is whether there was substantial evidence for the jury’s consideration. Conversely, the inquiry is whether the court was correct in holding as a matter of law that there was no proof showing actionable negligence.
Poston was killed at 12:30 a.m. January 17, 1951, when he walked into a sagging transmission line carrying 7,200 volts. The defense was that the Mississippi County Electric Cooperative, Inc., whose line caused Poston’s death, had constructed and maintained its system in appropriate manner and that third persons caused the line to dip to a point three or four feet from the ground when they thoughtlessly removed clamps or shackles to which a guy wire was attached in support of a pole on which the wires were strung. A truck owned by a resident Mexican had slipped or skidded from a roadway, with the result that the owner and those assisting him removed the clamp, allowing the light pole to tilt sufficiently to create the hazard resulting in Poston’s death. Recovery was predicated upon allegations that the guy wire was improperly placed, and the company was negligent in its method of inspection.
The Cooperative distributes electricity over 982 miles of lines. It purchases wholesale from Missouri-Arkansas Power Company, and connects with that corporation’s sub-station at Dell. The cooperative system was organized in 1947 and construction was begun in October of that year. The lines were built with employed labor rather than by contract.
H. C. Knappenberger, general manager, testified that when an electric line is built “you have to use diligence all the got to watch to see that it is all right.” He thought that perhaps the line causing trouble had been inspected once a month. The witness had seen it twice during the summer and once in November. Customers read their own meters, write the'readings on a company-supplied card, return it, and then receive a bill for the service rendered. Each card carries a telephone number showing where emergency calls may be put through. In the controversy here the company was not informed that the line was sagging until after Poston was killed. The first knowledge that anything was wrong came about two after the tragedy had occurred.
It is not necessary, in this opinion, to determine whether the company was negligent in maintaining the pole here pole supported by a guy wire running to the ground; nor do we consider whether the construction should have been according to a pattern better planned to ward against gratuitous interference.
R. W. Norman, who works with the engineering division of Rural Electrification Administration, testified that the construction standard was good, and that it met the Federal government’s requirements. Bnt he also answered, when asked whether it was customary to put guy wires at the most practical point, or at the safest point, “the cheapest and the best.” Guards for guy wires were not used. Norman also testified that in certain instances a pole-key is used, but on the type under discussion a pole-key could not be used. Specifications called for 35-ft. poles set six feet in the ground. The witness had not checked to determine if the pole to which the down guy wire was attached had been set to the approved depth.
Conceding, as the undisputed proof affirms, that the Mexican truckowner and his helpers removed the clamp, and that this occurred at the earliest time suggested by witnesses for two o’clock in the afterare met with testimony of Patsy Coleman who says that the wires started sagging about one o ’clock the day before Poston was killed. She did not elaborate upon the extent of this sagging, except to say that the wires came down gradually. It was almost night when she last saw them, and at that time they were about a foot above the ground. The discrepancy between appellee’s contention that the lines went down after or near two o’clock when the clamp was removed, and Patsy Coleman’s statement that they began sagging about one o ’clock, was not cleared on cross-examination except to draw from the witness a repetition of her assertion that the wires gradually kept getting lower, and the last time she saw them was just before dark.
It seems likely that the trial court overlooked these differences in time, and that the uncertainty came about when the motion for a directed verdict was argued beyond the jury’s presence. Counsel for the defending company said: ‘ ‘ The courts hold that an electric distribution company is not required to inspect its remote rural lines every day. This being true, there was not presumption of knowledge of the condition on this line through lapse of time because, taking the testimony most favorable to the plaintiff, the line sagged dangerously by one o’clock. Other witnesses placed it much later. Poston met Ms death not later than one o ’clock a. m. twelve hours later. ’ ’
But the point lost sight of was that the clamp was not removed until two o’clock or later during the afternoon preceding Poston’s death, and if Patsy Coleman’s testimony is true the cause was not the removal of the clamp; or, perhaps, to be more exact, the cause most strongly stressed by appellee has not been fully sustained by the element of time, thus leaving an interim for consideration of the fact-finders from which permissive inferences might be drawn.
We also think that testimony such as was given by Jerry Flanders, a professional engineer who believed that the pole and its attachments were not according to an approved safety pattern, raised another factual issue. For this reason some of the evidence relating to the installations (testimony other than that of Flanders) has been referred to.
Judgment reversed and cause remanded.
Mr. Justice Ward dissents. | [
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RobiNSON, J.
On May 6, 1947, Martha Chandler, an aged woman, conveyed to Robert Wooten and his wife, the appellee herein, Eliza A. Wooten, a lot in the town of Dumas, retaining- a life estate in the grantor. In June, 1950, Martha gave a deed to the same property to appellant herein, Louise Viesey. Martha died in October, 1950, and subsequent to her death, Eliza Wooten filed this suit asking for possession of the property. Louise answered asking- that title be quieted in her. The action was transferred to equity where the Chancellor held Eliza Wooten’s title to be good. -
Appellant Viesey contends that the consideration for the deed from Martha to appellee Eliza Wooten and her husband, Robert Wooten, was that the Wootens would provide such assistance as was needed by Martha during her lifetime, and that in April, 1950, some three years later, this contract was rescinded.
There is no substantial evidence in the record that there was any consideration for the deed from Martha to the Wootens other than that expressed in the deed, which provides: ‘ ‘ For and in consideration of the sum of $10 to me cash in hand paid by Robert Wooten and Eliza A. Wooten, the receipt of which is hereby acknowledged, and the further consideration of the many deeds of kindness shown me by Robert Wooten and Eliza A. Wooten, his wife, do hereby grant,” etc.
Robert Wooten was a son-in-law of Martha Chandler by a previous marriage and had been on friendly terms with her for about forty years.- During the.last years of her life, up to April, 1950, he went to her house daily and looked after her needs. His wife, Eliza, cooked for Martha and attended her daily after Martha became bedfast. This relationship continued until Robert Wooten himself became ill and helpless, and could no longer look after Martha, nor could Eliza spare the time from Robert to do so. It was then that the appellant, Louise Viesey, began looking after Martha. Neither the Wootens nor Louise had to spend any money on Martha as her welfare check was sufficient for her scant' needs.
It is true that in June, 1950, Martha gave a deed purporting to convey the property to Louise. At that time Robert was very sick. He died in September before Martha died in October, and at the time of the execution of the deed to Louise, Martha was about 85 years of age and had been confined to her bed for a long time.
Mr. George D. Hester, an attorney of Dumas, prepared the deed from Martha to the Wootens. It is clear from Mr. Hester’s testimony that Martha knew what she was doing and that Mr. Hester prepared the deed in accordance with her wishes. In fact, Martha was in better physical condition at the time than was Robert. Nothing was said to Mr. Hester about an agreement as to the Wootens thereafter looking after the needs of Martha, and there is nothing to that effect in the deed. If there had been an agreement whereby the WAotens were to look after Martha for the rest of her life, in all probability something would have been said to Mr. Hester about it. Apparently Martha was sound mentally and was clear in her expression to Mr. Hester regarding the conveyance to the Wootens and retaining a life estate.
The preponderance of the evidence here does not show that, as part of the consideration for the conveyance of the property to the Wootens, they were to look after Martha for the rest of her life. And, even if there had been such a preponderance of the evidence, a mere preponderance would not be enough to ingraft on the deed a consideration other than that expressed therein.
In the case of Fretwell v. Nix, 172 Ark. 230, 288 S. W. 8, this court said: “Conceding that appellees' should be permitted to prove an additional consideration, i. e., an agreement to assume and pay the mortgage debt, the proof is not sufficient to overcome the presumption arising from the recital of the consideration in the deed. The proof is in conflict with the recitals in the deed, and must, in order to prevail, be more than a mere preponderance of the evidence. . . . The language of the deed ■was selected by the grantors, and it is fair to assume that they adopted the language which expressed the contract in accordance with their conception of its terms.”
The decree of the Chancellor is therefore correct and is affirmed. | [
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George Rose Smith, J.
Tliis is a suit for damages resulting from the appellant’s wrongful dissolution of a partnership that existed between her and the appellee. The appellant, Ruby Williams, has a life estate in a 548-acre farm in Crittenden County. In October of 1950 she and the appellee, L. B. Hildebrand, signed a partnership agreement under which the farm was to be operated in 1951, 1952, and 1953. By this contract the parties agreed that Mrs. Williams would furnish the farm to the partnership, that Hildebrand would devote his time to the management and supervision of the farm, and that the profits would be divided equally. In his complaint Hildebrand asserted that in February, 1951, Mrs. Williams canceled the contract without cause, clamaging Hildebrand in the sum of $50,000. Trial before a jury resulted in a verdict for the plaintiff for $12,500. On this appeal the basic issue is whether the award of damages is supported by the proof.
These litigants, both now over sixty-five years of age, knew each other in their youth when they were living near Memphis. Hildebrand moved to California in 1911 and became a resident of that state. He and bis wife returned to Arkansas for a vacation in 1950 and visited in the borne of Mrs. Williams, wlio was then Mrs. Booth. Mrs. Booth was dissatisfied with the work of her farm overseer and, according to the Hildebrands, entreated the appellee to take over the management of the property. The contract of partnership was later prepared by Mrs. Booth’s attorney and was signed by Hildebrand after his return to California. In reliance upon the contract Hildebrand resigned his job, which paid $3,600 a year, sold his house and furniture at a loss, and came back to Arkansas late in 1950.
Upon his arrival Hildebrand assumed his duties as managing partner in the operation of the farm. The parties ’ relationship appears to have been amicable until shortly after the death of Mrs. Booth’s husband on January 23,1951. On February 5 Mrs. Booth sent Hildebrand a letter in which she declared the partnership to be at an end for the reason that Hildebrand had failed to prepare adequately for farming during the coming year. This suit was filed in March, when the contract still had almost the entire three years to run.
Mrs. Booth’s power to dissolve the partnership is not questioned. The relationship between partners involves such mutual trust and confidence that either partner has the power, though not always the right, to terminate the agreement at will. If the dissolution is in violation of the contract, as the jury found it to have been here, the ousted partner is entitled to damages. Ark. Stats. 1947, § 65-138 (2, a, II). The measure of damages, when the partnership was to have continued for a fixed term, is the profits that the injured partner would have received. As the court said in Bagley v. Smith, 10 N. Y. 489, 61 Am. Dec. 756: “The object of commercial partnerships is profit. This is the motive upon which men enter into the relation. The only legitimate beneficial consequence of continuing a partnership is the making of profits. The most direct and legitimate injurious consequence which can follow upon an unauthorized dissolution of a part nership is the loss of profits. Unless that loss can be made np to the injured party, it is idle to say that any obligation is imposed by a contract to continue a partnership for a fixed period.”
The evidence must afford a sufficient basis for estimating the anticipated profits with reasonable certainty. Hurley v. Oliver, 91 Ark. 427, 121 S. W. 920. Also, there must be deducted whatever amounts the plaintiff may fairly be expected to earn in other suitable employment, the defendant having the burden of proof upon this issue. School Dist. No. 65, etc., v. Wright, 184 Ark. 405, 42 S. W. 2d 555. In this connection we have held that the value of the services that the plaintiff would have performed under the broken contract should not be deducted in determining what the profits would have been; for to charge the plaintiff with the value of his services under the contract as well as with what he might have earned in other employment would be charging him twice for the same thing. Somers v. Musolf, 86 Ark. 97, 109 S. W. 1173.
The fundamental difficulty in the case at bar is that the issue of Hildebrand’s expected profits under the contract was not submitted to the jury. Hildebrand made no effort to prove how profitable this farm had been in the past or what profits are ordinarily realized from similar farming operations in the same vicinity. And even had such proof been made the court withdrew the issue from the jury by giving this instruction at the defendant’s request: “You are instructed that the plaintiff was not obliged to wait until the expiration of the contract to bring suit. He could and did elect to bring this action for damages for an alleged breach of the contract before the expiration thereof, and, having brought his action before the expiration of his contract, he cannot claim any damages based upon the value of any crops that might have been produced, or any profits that might have been derived from the cultivation of the land mentioned in the contract. ’ ’
instruction seems to have been based upon cases such as Van Winkler v. Satterfield, 58 Ark. 617, 25 S. W. 1113, 23 L. R. A. 853, where we held thajt an employee who sues for breach of a contract of employment at fixed wages cannot recover for damages he may suffer after the trial. The reason given is that the damages are too uncertain, since the plaintiff may, after the recovery of the judgment, immediately obtain other equally lucrative employment. This reasoning is criticized by Williston in his work on Contracts, § 1362, and our cases have never extended the doctrine to a situation involving future profits as distinguished from a set wage or salary.
Even though the issue of anticipated profits did not go to the jury the appellee insists that there is other evidence in the record that sustains the award of $12,500. He relies principally upon proof that he sold his California property at a loss of $5,000 and gave up a job that paid $3,600 a year. The argument is that these are special damages that were within the contemplation of the parties when the contract was made. The fallacy in this argument is that these losses resulted not from Mrs. Booth’s breach of the contract but instead from the fact that Hildebrand made the agreement in the first place. They were losses that Hildebrand was willing to suffer in order to obtain the profits he expected the venture to produce. Even had the contract been fully performed Hildebrand would not have been able to recover these expenses from his partner. Hence the authorities agree that when a partner’s damages are measured by his expected profits he is not entitled to recover expenses or losses incurred preparatory to entering the partnership. Overstreet v. Merritt, 186 Calif. 494, 200 P. 11; Tygart v. Albritton, 5 Ga. App. 412, 63 S. E. 521; Williams v. Barton, 13 La. 404. While the testimony about the California losses is relevant as showing Hildebrand’s good faith and the consequent likelihood that it was Mrs. Booth who first breached the contract, it cannot serve as a foundation for the verdict in the absence of proof that the profits would have been at least $12,500. Hildebrand should be compensated only for the damage resulting from Mrs. Booth’s termination of the agreement, and unless the profits would have equalled the amount of the verdict it is evident that a judgment for $12,500 for. preparatory outlays puts Hildebrand in a better position than he would have occupied had there been no breach of the agreement.
Counsel for the appellee also stress a part of Hildebrand’s testimony, in which he said that Mrs. Booth had expressed her opinion of the value of his interest in the partnership at a time before any dissension had arisen. He testified that Mrs. Booth knew “that the wife was beginning to get dissatisfied living in Memphis alone and me driving hack and forth over here every day, and so she says, ‘I don’t believe that your wife is going to he satisfied,’ and ‘How much would you release the contract for?’ I says, ‘I don’t know. You make me an offer.’ She did.” Q. “How much?” A. “Fifteen thousand dollars.” Q. “Was that accepted?” A. “I told her yes; I would accept that to step out.” (We have omitted the various objections that were made to this testimony.) It is not contended that this casual incident created a binding contract for the purchase of Hildebrand’s interest.
The appellant insists that this testimony should have been excluded as an offer of compromise, while the ap-pellee contends that there was then no dispute subject to compromise. We are not in agreement as to whether this proof involves an offer of compromise, but it is evident that the verdict cannot be sustained upon this testimony alone, in view of the other errors that we have mentioned. The issue was not the abstract value of Hildebrand’s contract but the profits that he would have received had Mrs. Booth performed her obligations. Wil-liston, Contracts, § 1339. Had there been competent evidence of such profits and had this evidence been disputed by the defendant, proof of the incident referred to might have been relevant for rebuttal or impeachment purposes. But whatever slight value the testimony may have as an indication of anticipated profits is beside the point on this appeal, since the instruction we have quoted prevented the jury from basing its verdict upon such profits.
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Ward, J.
This appeal involves a daylight railroad-crossing fatal accident and the sole question is whether the negligence of the deceased exceeded the negligence of the railroad company.
The deceased, J. H. Harris, was killed between one and two o’clock P. M. on the 12th of December, 1950, while attempting; to cross the tracks of appellant company in Biscoe. The railroad track runs east and west, and deceased was driving north, slightly northeast, in his truck on the gravel highway No. 33, when the front of his trnclc struck the front end of appellant’s Diesel engine. The engineer on this engine controlled another Diesel just to the rear, and both engines were pulling 46 cars at a speed of approximately 50 miles per hour. Immediately prior to the collision the deceased was driving his truck at a slow speed, perhaps not exceeding eight to twelve miles per hour.
The surroundings were such that the deceased, who was familiar with the crossing, could have had a clear vision down the track to the east for a distance of about 300 feet when he was within 82 feet of the south rail, but previous to his reaching that point his vision would have been obscured by two trees and a building on his right. There is a slight upgrade in highway No. 33 as it approaches the tracks from the south.
The jury returned a verdict in favor of the appellee in the amount of $10,000, hence this appeal. The amount of the judgment is not in question.
The administrator’s complaint alleged three grounds of negligence, vis: 1. The failure to comply with the lookout statute (Ark. Stats. § 73-1002); 2. Excessive speed; and 3. Failure to sound the whistle and ring the bell as required by Ark. Stats., § 73-716. At the close of all the testimony the court, with no objections, held that plaintiff had not made a jury question on the first two grounds, but did allow the cause to be submitted on the question of whether the whistle was sounded and the bell was rung. Appellant urges two grounds for a reversal which we now discuss in order.
I.
It is first contended that there is no substantial evidence to support the finding of the jury that neither of the statutory signals was given. We cannot agree with this contention notwithstanding that there was positive testimony by the engineer and brakeman and several disinterested by-standers that the signals were given. One witness, in the soft drink business, stated that he was standing close to the crossing, saw the engine as it approached, and did not hear the whistle sound. A groceryman was in his store about 350 feet from the crossing but did not hear the train whistle, and another man similarly situated heard only one “toot”. One resident of Biscoe, 61 years of age, heard a whistle blow and in five or six seconds heard the crash. Another groceryman was in his store which was located near the track some 350 or 400 feet east of the crossing, and, though he heard the train passing, he heard no whistle. A post office clerk whose duty required him to be near the track and was looking at the train at the time heard the whistle sound one blast at the signal block [which was about 300 feet east of the crossing] and in a few seconds he saw the train begin to make a sudden stop. One lady who was standing near the track about 250 feet east of the crossing said she was looking at the truck as the train went by her and she heard no whistle or bell sounding from that moment until the collision occurred. •Therefore, regardless of what our opinion might be as to the relative weight of the evidence on either side, it is apparent that there is substantial evidence to present a jury question, and, under the often announced rule of this court, the determination of the jury on this point will not be disturbed.
II.
The next ground for a reversal is expressed by appellant in these words: “If it be determined that there was substantial evidence neither of the signals was given, as a'matter of law failure to give signals was not approximate cause, or, as a matter of law the negligence of appellee’s intestate was equal to or greater than any negligence of appellants.”
It is argued, and it may be conceded, that if the deceased had stopped his car and looked for the train or had just looked for the train while approaching the track in a careful manner, he would have been able to see it in time to have avoided the collision. On the other hand it must be conceded that if appellant had caused the whistle to blow and/or the bell to ring continuously as provided in Ark. Stats. § 73-716 it possibly would have attracted the deceased’s attention and avoided the accident. Thus, since both appellant and the deceased were negligent, the difficult question arises as to which one was more negligent. To put the question in legal phraseology, which one’s negligence was the greater. The answer to this question cannot be determined with mathematical precision, and, as will be later seen, it has resulted in some difficulty if not confusion to the courts.
It can be argued with considerable force that this case should be reversed on the authority and reasoning in some of our former decisions, such as: Mo. Pac. Railroad Co., Thompson, Trustee, v. Doyle, 203 Ark. 1111, 160 S. W. 2d 856; Mo. Pac. Railroad Co., Thompson, Trustee, v. Howard, 204 Ark. 253, 161 S. W. 2d 759. See, also, Louisiana & Arkansas Ry. Co. v. Smith, (Ark.), 133 Fed. 2d 436. In the last cited case we find this language :
“. . . where it is apparent from the evidence that plaintiff did not see the train because he did not look for it at a time when he was in a position to see its approach and to determine if he could proceed with safety, then his failure to so act, and not the failure of the train crew to give the signals, was the proximate cause of the accident. ’ ’
Prom the second cited case we quote this language:
“Had she stopped, before reaching the main line track, she could have heard the train, and had she looked after easing by the obstruction she could have seen it. It was there, making a loud noise, whether the whistle was blown or the bell rung, and signals cease to be factors where the presence of the train is plainly discoverable by other means. Thus her own negligence was the proximate cause of her injury, if any, which is doubtful. ’ ’
This language is quoted from the first cited case:
“We must take notice also of the fact that a heavy freight train moving at the rate of ten to fifteen miles per hour creates a noise which, with but the slightest attention, could be heard for many city blocks.
“We have many times held that the purpose of giving signals is to warn the traveler of the approach of a train, but when the traveler has this knowledge otherwise, warning signals cease to be factors. . . . The object of signals is to notify people of the coming of a train. Where they have that knowledge otherwise, signals cease to be factors.”
It will be seen from a full reading of the above cases that this court answered the question as to whose negligence was the greater or was the proximate cause of the accident. It was recognized, as stated in the Smith case, supra, “that each [crossing collision case] must be tried in view of the prevailing” facts and circumstances, and the result must be tested by accepted principles of law”. There are some facts in each of the cited cases which distinguish them, not too clearly, from the case at bar. In the Boyle case the plaintiff saw the head light of a train approaching, but thought it was standing still; in the Howard case the plaintiff tried to beat the train to the crossing after the situation became dangerous; and in the Howard case and the Smith case there were obstructions close to the tracks which, the court said, presented dangers which called for greater precautions.
It is our view that the facts and circumstances in the case at bar present, at least, a doubtful question as to whose negligence was tlie proximate canse of the collision, and that the better rule is to leave the answer to the jury, as was done here and under proper instructions on that point.
The view expressed above is in harmony with the decision in Smith, Admx. v. Missouri Pacific Ry. Co., 208 Ark. 40, 184 S. W. 2d 951, where the facts were similar to this case. The lower court, instructing a verdict in favor of the railroad company, announced as a matter of law “that the negligence of the intestate was equal to, or greater than, that of the railroad company. . . On appeal we reversed the trial judge and held that the question should have been submitted to the jury, using this language:
“In any case, as in that one, where no reasonable grounds for a difference of opinion existed, that the negligence of the injured party was equal to or greater than that of the operatives of the train, the court should direct a verdict in favor of the railroad' company, although the railroad company was not free from negligence, but if there is room for an honest and intelligent difference of opinion, the jury should be permitted to compare the negligence and should be given an instruction approved in the recent case of Mo. Pac. R. Co. v. Walden, 207 Ark. 437, 181 S. W. 2d 24, which would require the damages to be reduced in the proportion which the negligence of the injured party bore to the negligence of the railroad company.”
In this same ease the court also said that “a note of the bell, or a blast of the whistle would have given intestate the warning which the statute requires, and might have awakened him from his lethargy and averted the collision. . . . ”
Another case in which the facts and issues were similar to those in the case before us here is St. Louis-San Francisco Ry. Co., Thompson, Trustee, v. McCarn, 212 Ark. 287, 205 S. W. 2d 704. It was there contended by the railroad company, on appeal, that the lower court erred in submitting the question of comparative negligence to the jury. In affirming the lower court we said:
“If it be conceded that the evidence showed that the driver of the car in which appellee’s intestate was riding was guilty of negligence, we are also of the view that the evidence shows that the Railroad Company was also guilty of negligence. A situation was therefore presented in which it became necessary for the negligence to be compared. ’ ’
We also quoted with approval the following:
“Since there is room for an honest and intelligent difference of opinion as to the degrees of negligence on the part of the parties, the jury should have been permitted to compare this negligence under an instruction requiring the damages to be reduced in the proportion which the negligence of appellant’s intestate bore to the negligence of appellee.’’
It is not contended here that the jury was not properly instructed on the question of the comparative negligence of deceased and the railroad company, and since the jury must have found that the negligence of the latter exceeded that of the former the case is affirmed. | [
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KENNETH S. HIXSON, Judge.
|,The parties to this appeal are appellant Jeffrey Scott Criswell and appellee Ashley Criswell (now Strange). The parties married in June 2004, and on March 18, 2010, the trial court entered a divorce decree awarding Ashley custody of the parties’ four minor children subject to Jeffrey’s standard visitation. The decree also ordered Jeffrey to pay $250 per week in child support. On June 7, 2013, Jeffrey filed a motion to dismiss and set aside the divorce decree, as well as all subsequent orders enforcing the decree, on the grounds that the 2010 divorce decree was entered without personal jurisdiction. The trial court entered an order denying Jeffrey’s motion to dismiss, and Jeffrey now appeals. Because we agree that the trial court lacked jurisdiction to enter the divorce decree and that the decree was therefore void ah initio, we reverse the trial court’s order denying Jeffrey’s motion to dismiss.
|2The record shows that, in anticipation of divorce, the parties entered into a “child-custody agreement” on April 14, 2008. That agreement contained the following pertinent provisions:
The parties have filed or will file suit for divorce in the above styled cause of action, and because the parties wish to resolve the issues of the divorce action pending between them, they enter into and bind themselves to the following agreement. The parties have four minor children, all daughters.... The parties agree that Plaintiff (Ashley) shall have custody of the children, with the Defendant (Jeffrey) having visitation rights as set forth in the Revised Minimum Chancery Court Visitation Schedule. The parties agree that Defendant will pay $250.00 per week in child support to be paid through the Circuit Clerk’s Office.... Both parties agree that this agreement will be incorporated into their final divorce decree, and be part of this Court’s order.... Both of the parties have executed this agreement as their free and voluntary act and deed and agree that a divorce may be entered in this action.
Three days after the agreement was signed by Jeffrey, on April 17, 2008, Ashley filed a complaint for divorce on the grounds of general indignities. On the same day, the parties’ executed child-custody agreement was also filed with the trial court. However, no summons was ever issued by the court clerk, and the complaint for divorce was never served on Jeffrey.
The next activity in the ease came almost two years later on March 18, 2010, when the trial court entered a divorce decree. The decree provided that, based on the oral testimony of Ashley and her corroborating witness, Ashley was entitled to a divorce on the grounds of general indignities. The decree incorporated the parties’ child-custody agreement, thereby awarding custody of the children to Ashley and ordering Jeffrey to pay $250 in weekly child support.
The record reflects that Jeffrey sporadically made some child-support payments to Ashley. On August 5, 2011, appellee Office of Child Support Enforcement (OCSE) filed a | ?,motion to intervene and a motion for citation for contempt, alleging that Jeffrey had accrued a substantial arrearage on his court-ordered child-support obligation. On August 11, 2011, the trial court entered an order finding that Ashley had assigned her rights to OCSE, granted OCSE’s motion to intervene, and entered an order for Jeffrey to appear and show cause why he should not be held in contempt for violation of the March 18, 2010 divorce decree.
What happened next was a series of hearings, motions, and orders pertaining to OCSE’s contempt allegations and collection efforts. Jeffrey appeared at each of these hearings pro se. The trial court entered an order on November 17, 2011, finding that Jeffrey was $37,850 in arrears on his child-support obligation and awarding OCSE a judgment in that amount. On February 16, 2012, the trial court entered an order finding Jeffrey in contempt and sentencing him to thirty days in jail, but suspended the imposition of sentence and found that he could purge himself of the contempt by paying $5000 by April 12, 2012. On April 12, 2012, the trial court entered another order of contempt against Jeffrey, again sentencing him to thirty days in jail but stating that Jeffrey could purge himself by paying $5000. On May 13, 2013, the trial court entered an order finding Jeffrey in contempt for nonpayment of child support, and finding a total delinquency of $53,160 for which OCSE was awarded a judgment. That order noted that at the hearing Jeffrey had requested a review and adjustment of his child-support obligation.
At some point after the trial court entered the $53,160 judgment, Jeffrey retained counsel. On June 7, 2012, the newly retained counsel filed a motion to dismiss. In his motion, Jeffrey argued that because a summons was never issued upon the filing of the divorce [^complaint, and neither the complaint nor a summons was served on him, the divorce decree and all subsequent orders should be dismissed. Jeffrey contended-in his motion that because there was no personal jurisdiction over him, the divorce decree was void and should be set aside. Both Ashley and OCSE filed responses opposing Jeffrey’s motion to dismiss.
After a hearing, the trial court entered an order denying Jeffrey’s motion to dismiss on October 30, 2013. The trial court’s order recites:
1. That this Court has jurisdiction of the parties and the subject matter and the venue is proper.
2. The Defendant filed a Motion to Dismiss for lack of personal jurisdiction on June 7, 2013, asking the Court to set aside the parties’ Divorce Decree and all its subsequent Orders that were filed by the Intervenor, State of Arkansas Office of Child Support Enforcement.
3. The Court has to look and see if the Court acquired subject matter and personal jurisdiction over the Defendant. The Court hereby finds that there is no question that subject matter jurisdiction exists.
4. The Court has no evidence that a Summons was ever issued in the divorce matter. Also, the Court is aware that there was not a Waiver or Entry of Appearance that was signed by the Defendant in the divorce matter. However, the Court finds that the Defendant did sign a Child Custody Agreement on April U, 2008 and it was filed on April 17, 2008. The divorce was taken two years later and the Divorce Decree was filed on March 18, 2010. The Court finds that the Defendant subjected himself to the jurisdiction of this Court by signing and filing the Child Custody Agreement acknowledging that it was in contemplation of a divorce, agreeing to matters of child custody and visita> tion and naming the children. The Court also takes in consideration that subsequent to the Divorce Decree being entered, two children were bom to the Plaintiff, Ashley Criswell (now Strange), and her new husband.
5. The Court finds that the divorce matter is an equitable proceeding and the Defendant is not entitled to have the Child Custody Agreement taken back. In reference to whether this Court had personal jurisdiction over the Defendant at the time the Divorce Decree was entered, it is the finding of this Court that the actions of the Defendant, Jeffrey Cris-well, by signing the Child Custody Agreement constitute acquisition of personal jurisdiction over him.
6. The Court also finds that after the divorce Decree was entered, the OCSE intervened and re-opened the case on August 5, 2011. Each and every Court order after that gave rise to judgments against the Defendant. Mr. Criswell was served with an Order to Appear and Show Cause and there is a green card | ¡¡supporting that. However, no Summons was issued. The Defendant never filed a responsive pleading and the Defendant appeared without counsel. There was a continuance granted at the request of the parties. The Defendant asked for an adjustment in child support. In other words, he was heard on affirmative requests in connection with those child support hearings. The Defendant had paid support and presumably exercised visitation until sometime around 2013 when this Motion was filed.
7. Whether pleadings were filed or not, the Court finds that the involvement of the Defendant, Mr. Criswell, in this child support case, showed up in Court, was heard, and availed himself to the jurisdiction of the Court. The Defendant’s actions were affirmative and sufficient to constitute acquisition of personal jurisdiction over him.
8. The Court finds that the matter as a whole (the divorce action and subsequent child support actions) indicates personal jurisdiction over the Defendant both prior to the entry of the Divorce Decree and everything that follows therefrom. The Divorce Decree and the judgments and orders entered afterwards in this case stand.
9. The Defendant, Jeffrey Criswell’s Motion to Dismiss is denied.
(Emphasis added.)
In this appeal from the order denying his motion to dismiss, Jeffrey argues that the trial court erred in failing to grant the motion because the trial court lacked jurisdiction to enter the March 18, 2010 divorce decree. Jeffrey argues that, because the divorce decree was entered without jurisdiction, the decree should have been set aside and that the attempts to enforce it were void. We agree.
In this case it is undisputed that after Ashley filed her complaint for divorce, no summons was issued and there was no service of the complaint on Jeffrey. It is mandatory under Arkansas law that service of process must be made within 120 days after the filing of the complaint unless there is a motion to extend, and if service is not obtained within the 120-day period and no such motion is made, dismissal is required upon motion or upon the court’s own initiative. Ark. R. Civ. P. 4(i). Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). Moreover, a summons is required to satisfy due-process requirements. Thompson v. Potlatch Corp., 326 Ark. 244, 930 S.W.2d 355 (1996). In Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996), the supreme court held that proceedings conducted without valid service render judgments arising from them void ab initio. Moreover, actual notice of a proceeding does not validate defective process. Tucker, supra.
Our supreme court’s decision in Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001), provides considerable guidance in resolving the appeal at hand. In Raymond, husband filed a divorce complaint, but wife was never served with process or a copy of the complaint. Ninety-three days after the complaint had been filed, both parties signed a “conditional reconciliation agreement” that was filed with the court. The conditional-reconciliation agreement was in the form of a legal document prepared for court filing, and it contained the name of the court, the style of the case, and the docket number. The conditional-reconciliation agreement provided that the parties were pursuing a trial reconciliation, and that wife would not partake in alcohol or illegal drugs and would undergo counseling and treatment. The agreement itself clearly stated that it was to be filed as an attachment to the complaint for divorce in the Chancery Court of Washington County, Arkansas. The agreement further provided that, if wife successfully completed an alcohol-rehabilitation program and 'abstained from alcohol for a period of six months, husband would dismiss the pending divorce complaint in the Washington County Chancery Court.
|7The reconciliation efforts failed. Thereafter, the divorce proceeded, and the wife subsequently executed a property-settlement agreement and another agreement labeled a “waiver and entry of appearance.” Although this agreement was labeled as a “waiver and entry of appearance,” the contents of the agreement in fact did not waive service of process, nor did it acknowledge receipt of husband’s divorce complaint. Rather, the waiver- and-entry-of-appearance agreement simply acknowledged receipt of the parties’ property-settlement agreement and reflected wife’s waiver of the right to appear without further notice. The property-settlement agreement and the waiver and entry of appearance were filed with the divorce decree 133 days after husband had filed his complaint.
The wife in Raymond later obtained counsel, and almost two years after the divorce decree and property-settlement agreement had been entered, she petitioned to have the decree set aside. The wife contended that the trial court had not acquired jurisdiction to enter the decree because husband had never perfected service of process, nor did he deliver to wife a copy of the complaint. The husband disagreed, arguing inter alia that the wife submitted to the court’s jurisdiction by virtue of her signature on the conditional-reconciliation agreement that was filed with the court. The trial court denied wife’s petition, finding that her signature on the parties’ conditional reconciliation agreement constituted an entry of appearance, and that by signing it, she submitted herself to the court’s jurisdiction.
The wife appealed the case to the Arkansas Supreme Court. Our supreme court in Raymond reversed the trial court, holding that the divorce decree was void because wife had undisputedly never been served with a copy of the complaint or the summons. The supreme Rcourt further held that, by signing the conditional-reconciliation agreement, wife did not enter an appearance or waive lack of jurisdiction as a defense.
In the instant case, Ashley contends that, even though there was no valid service on Jeffrey, he nonetheless entered his appearance and subjected himself to the trial court’s jurisdiction by signing the child-custody agreement. However, we disagree. The child-custody agreement was executed three days before the complaint for divorce was filed, so at that time there was not yet any action to appear in. Moreover, as in Raymond, supra, Jeffrey never filed any pleading or otherwise appeared before the divorce decree was entered. And, as in Raymond, Jeffrey’s actual knowledge of the proceedings did not validate the defective process. Therefore, the divorce decree in this case was entered without jurisdiction and was void.
Ashley also asserts that Jeffrey’s motion to dismiss was properly denied because Jeffrey’s jurisdictional claim was barred under the doctrines of laches and judicial estoppel. Ashley asserts that Jeffrey waited until more than three years after the divorce to challenge the court’s jurisdiction, and that in reliance on the divorce decree she has since remarried and has two more children. Ashley also relies on Dupwe v. Wallace, 355 Ark. 521, 140 S.W.3d 464 (2004), where the supreme court held, under the doctrine of judicial estoppel, that a party is not allowed to avail himself of inconsistent positions in litigation concerning the same subject matter. Ashley contends that Jeffrey took inconsistent positions because, prior to filing his motion to dismiss for lack of jurisdiction, he participated in the contempt proceedings and requested affirmative relief including a continuance and an adjustment in child support.
fcThe laches argument now raised by Ashley was also raised and rejected by our supreme court in Raymond, supra. In Raymond, the supreme court held that the laches defense was misplaced because the decree was void ab initio, and the trial court had no jurisdiction or authority to hear the case in the first place. The same is true in this appeal. Moreover, the equitable defense of judicial estoppel does not apply here because Jeffrey never appeared or took any inconsistent position prior to the divorce decree being entered. Therefore, his voluntary participation in the subsequent contempt proceedings could not revive a divorce decree that was already void. Proceedings where attempted service was invalid render judgments arising therefrom void ab initio and subject to collateral attack at any time. Raymond, supra. Jeffrey was thus entitled to challenge the divorce decree at the time and in the manner that he did, even though he had participated in the proceedings in which the trial court attempted to enforce the void decree.
We conclude that the trial court lacked jurisdiction to enter the divorce decree. As such, the decree was void, and the decree, as well as the subsequent proceedings to enforce the decree, should have been dismissed and set aside.
Reversed.
GLADWIN, C.J., and GLOVER, J„ agree. | [
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George Rose Smith, J.
TMs is a suit by the appellee to recover a broker’s commission for having sold a taxicab business for tbe appellant and her husband. Mr. Manzo died before the case was tried, and the plaintiff dismissed the cause as to him. The trial court, sitting as a jury, entered judgment against Mrs. Manzo for $750, being 5% of the $15,000 that the court found the taxicab business to have been worth. Both litigants have appealed.
Boulet, a real estate dealer in Hot Springs, testified that Mr. and Mrs. Manzo visited his office and employed him to sell their taxicab business, which was situated in Little Rock. The agreed commission was to be 10% if the business were sold for cash or 10% of the higher valued property if the business were exchanged for other property, in which case each party to the exchange would pay half the commission. Boulet advertised the property in a newspaper and received an inquiry from John Drago, who owned an apartment building in Hot Springs. When the Manzos next called on Boulet he gave them name, and they then took over the negotiations and eventually exchanged their business for the apartment building. This suit was brought when they refused to pay Boulet⅛ commission.
Mrs. Manzo’s chief argument for reversal is that she and her husband did not agree to pay Boulet any commission at all. The trial court elected to believe Boulet’s testimony, however, and it is sufficient to sup port the judgment. In this connection Boulet testified that during the discussion among the three parties to the brokerage agreement Mr. Manzo said that he would'pay the commission. This statement is objected to as hearsay evidence, but the testimony is competent. statement was simply part of the contract itself and amounted to what is often called a verbal act. Hence the testimony was offered not to show that statement was true but merely to show that it was made. Motors Ins. Corp. v. Lopez, 217 Ark. 203, 229 S. W. 2d 228.
Another contention is that Boulet did not earn his commission, as the Manzos -consummated the exchange after Boulet brought the parties together. We have held, however, that in this situation the broker has performed his part of the contract and is entitled to be paid. Hartzog v. Lean, 216 Ark. 17, 223 S. W. 2d 820. Mrs. Manzo also relies upon a Little Rock ordinance which requires real estate dealers to be licensed as a condition to collecting their commissions. It is not shown that any Little Rock real estate was involved, since the taxicab company had only a lease upon land, and a lease is personalty. For that matter, Mrs. Manzo herself contends that all that was sold was the corporate stock and not the physical assets of the business.
Lastly, the appellant insists that in any event she should be liable for only 49% of the judgment, since the taxicab business was a corporation in which the stock was owned 50% by Mr. Manzo, 49% by Mrs. Manzo, and 1% by their daughter, who was then a minor. There is no evidence that Boulet was ever told that the business was incorporated or put on notice that the Manzos meant to employ him on the basis of their stock' ownership. On the contrary, the proof is that the Manzos described the physical assets of the business and together agreed to pay the commission if Boulet sold the concern. Nor is there any testimony that Manzo separately agreed to pay only half of the 5% commission or that Mrs. Manzo limited her liability in any such manner. On the proof the promise was either joint or joint and several, and in either case each promisor is liable for the whole. Rest., Contracts, § 117.
By cross appeal Bonlet contends that the conrt erred in basing the judgment upon the $15,000 value of the taxicab business, since the agreement was that the commission upon an exchange should be 10% of the higher of the two values. Four witnesses testified as to the value of the apartments conveyed by Drago, and all four estimates are in excess of $15,000. But the appellee does not ask for a new trial in toto; he asks that we either increase the judgment upon cross appeal or remand the case for that purpose only. We cannot follow either course. The value of the building is an issue of fact, which it is not our province to decide. And in law cases the verdict is an entity which we cannot divide by affirming the finding of liability and yet remanding the cause upon the issue of damages. Martin v. Street Imp. Dist. No. 349, 180 Ark. 298, 21 S. W. 2d 430. The judgment will therefore he reversed and the_ cause remanded for a new trial unless the appellee elects to file a waiver of his cross appeal within fifteen judicial days. | [
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George Rose Smith, J.
This is a snit for false imprisonment brought by the appellee, L. V. Burton, against Naldo Arnold, a former sheriff of Sharp County, and the surety on his official bond. Trial before a jury resulted in a verdict for $1,500 compensatory damages and $100 punitive damages.
Burton proved by several witnesses that on the evening of November 5, 1949, he was sitting in a cafe in the city of Hardy. Arnold, visibly intoxicated, entered the cafe and sat down near Burton. When Burton offered a light for Arnold’s cigarette the sheriff cursed him, displayed his badge, leveled his pistol at Burton, and after some exchange of words arrested Burton and took him to jail. In about an hour and a half Burton was released at the suggestion of a deputy sheriff. No charges were ever preferred against him. Arnold’s evidence was to the effect that he had had only two drinks and had cause to believe that Burton had stolen some tools, but the jury evidently concluded that the arrest and imprisonment were wholly without cause and attributable only to Arnold’s intoxication.
Arnold complains of the trial court’s refusal to grant a continuance owing to the absence of two witnesses for whom Arnold had obtained subpoenas two weeks before the trial. The motion for a continuance was properly denied. As to one of the absent witnesses the motion merely stated that this witness would testify that he was present when the arrest was made. That bare fact had nothing to do with the issues in the case. As to the other witness no diligence on Arnold’s part is shown by the motion. The proof heard on the motion shows that this witness had been out of the State for from three to nine months before the date of trial. Arnold fails to show that he made any effort to find the witness and take his deposition.
It is argued that the court erred in submitting the matter of punitive damages to the jury, since the record discloses that at the close of the plaintiff’s proof the court sustained a motion to dismiss the complaint as to such damages. It may be inferred that the court intended to dismiss as to the surety alone, as the motion referred to the defendant instead of the defendants. But even accepting the appellants’ interpretation we find no error. Later on the court submitted the issue of punitive damages to the jury, without objection by the appellants. The proof we have mentioned certainly raised an issue as to whether the sheriff had acted willfully, intentionally, and maliciously; so a jury question existed. Kelly v. McDonald, 39 Ark. 387. The most that can be said is that the judge reconsidered his earlier ruling, without the defendants’ either objecting or asking an opportunity to adduce additional evidence. Nor, for that matter, was the point preserved in the motion for a new trial.
It is also contended that the verdict for $1,500 actual damages is excessive. When we consider that Burton was humiliated in a public place, threatened with a pistol, and placed in jail, and that word of the incident reached his employer and caused him further embarrassment, we think the award entirely reasonable.
By cross appeal Burton contends that the court erred in correcting its judgment to relieve the surety of liability for punitive damages. This modification was correct. Punitive damages are imposed to punish the wrongdoer, not to■ compensate the plaintiff for the officer’s breach of duty. It is therefore generally held that the surety is not liable for punitive damages unless the statute so provides. Yesel v. Watson, 58 N. D. 524, 226 N. W. 624, 64 A. L. R. 929; cf. Rest., Security, § 181. Our statute does not so provide. Ark. Stats. 1947, § 12-1101.
Affirmed. | [
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MiNou W. Millwfje, Justice.
Appellees, J. J. Hocott and wife, own acreage property in the form of a ravine which lies between North Lookout Street and Kavanaugh Blvd. in the City of Little Bock. Under a 1937 zoning ordinance the eleven-acre tract is classified as being in “A”, One-Family Residential District. Appellees petitioned the city for reclassification' of the property to “D”, Apartment District, and their petition was referred to the City Planning Commission which approved the application. Upon the protest of property owners residing in the vicinity the City Council rejected the application. Appellees then instituted this suit against the city for reclassification of their property as prayed in the petition.
Appellees alleged that the zoning ordinance as applied to the area in question and insofar as it restricts the use of such property to classification “A”, One-Family District, is unreasonable and arbitrary in that it constitutes an unlawful deprivation of the rights of ap-pellees to the use of their property.
The property in question is bounded on the west by a business district fronting on Kavanaugh which at that point curves eastward so as to also become the north boundary of the tract. The property is bounded on the south by North Lookout Street and on the east by Allsopp Park which is a continuation of the wooded ravine eastward. There is a rise of approximately 90 feet from the bottom of the ravine to Kavanaugh Blvd. on the north in a distance of about 300 feet and a similar rise of about 60 feet in a distance of approximately 250 feet to North Lookout Street on the south. From that part of Kava-naugh which forms the northern boundary of the area in question. there is a further rise in terrain of about 50 feet in a distance of approximately 200 feet northward to the level of Crestwood Drive. The residences on the south side of Crestwood Drive face north with rather steep backyards extending toward Kavanaugh. There are residences on North Lookout Street on the south facing the area in question.
Appellees employed experienced real estate agents and builders to determine a feasible use and development of their property for residential purposes. These experts concluded that the property could only be properly developed by using it for one and two-story apartments, housing two, three and four families each. The two-story apartments would be built on the steep sides of Kavanaugh and North Lookout facing such streets with access to the top-story apartments from the street and to the first-story apartments at ground level by means of an access road in the valley. The other units would face the access road.
A plat of the property in accordance with the proposed development together with a bill of assurance containing the usual restrictive covenants for the protection of property owners was prepared and filed with appel-lees’ petition for reclassification. Under the proposed plan of development the estimated cost of site improvement alone consisting of grading, paving, terracing, etc. is $50,000. The apartment buildings would cost from $15,000 to $35,000 each, excluding costs of the lots, and the units would rent for $80 to $100 each monthly.
The consulting engineer who prepared the plat of the proposed improvement and three experienced real estate agents testified on behalf of appellees. The effect of their testimony is that use of the property in question for one-family residences is impractical and economically unsound because the rough nature of the steeply sloping terrain renders foundation costs excessive and prohibitive for that type construction. .While these witnesses testified that it was not impossible to build one-family residences on the property, they stated that the foundation costs would be prohibitive within the price ranges of single-family houses that could be constructed on that terrain and sold to the public.
There was evidence that the residences along North Lookout Street opposite the south side of appellees’ property were built with comparatively small foundation costs because they were on a down slope wliicli could be leveled by bulldozers. The north and south sides of the area in question are much steeper and two-story apartments with the first story below street level could be constructed without such excessive foundation costs as would be required for a one-family residence.
The witnesses for appellees were positive in their opinion that the proposed development would not adversely affect the value, occupancy, or use of other residential property in the vicinity. Some of them testified that the value of adjacent residential property would be enhanced by the development. The City Planning Director, who is an experienced zoning engineer, stated that construction of the development in conformity with the plans and bill of assurance would not have the effect of lowering the value of adjacent properties.
Opposed to this evidence is that of two property owners who reside on North Lookout Street and eight others who have homes on Crestwood Drive. They testified they purchased their homes in reliance on the one-family zoning classification and that the proposed development would in their opinion lower the value of their properties. One of the residents on North Lookout had a duplex adjacent to his residence on the west and in his opinion this structure did not detract from the neighboring property. Only one property owner gave any reason for his conclusion that decreased values would result from the proposed construction. He felt there would be an increase in the number of garbage cans, traffic and noise over that existing in a one-family district. Most of the inter-veners reside on Crestwood Drive with the rear of their houses facing the area in question and about 150 feet higher than the lowest level of the ravine.' The development could not be seen from the front of the homes on Crestwood, but would be observable from the backyards of some of the houses on the street. There was no evidence that the development as proposed would be unsightly.
The City Planning Director testified that a development of the area in question as a continuation of Allsopp Park would be more satisfactory than that contemplated by appellees, but only if the business district on the west was taken out.
An engineer testified on behalf of appellants that the area in controversy is suitable for building one-family residences. He mentioned other additions where homes were built on varying slopes up to 35 or 40 percent, but stated that the steeper slopes of the property in question ranged as high as 50 or 60 percent. There is also evidence that schools in the area are already overcrowded, but most of the witnesses conceded this to be a state-wide condition.
Thus we have a conflict in the evidence as to whether area in question is susceptible of use or development for one-family residences, as restricted by the ordinance, and also whether the development and use contemplated by appellees would adversely affect the value and use of other residential property in the neighborhood. If both questions are answered in the negative, then the action of the council in rejecting the petition of appellees is unreasonable and arbitrary, as applied to the area in question, in that it constitutes an unlawful deprivation of the use of the property by appellees. We have uniformly upheld the finding of the chancellor on the question as to whether the classification of property by zoning authorities is unreasonable and arbitrary where such finding is supported by the preponderance of the evidence. City of Little Rock v. Sun Building & Developing Co., 199 Ark. 333, 134 S. W. 2d 582; City of Little Rock v. Joyner, 212 Ark. 508, 206 S. W. 2d 446.
We cannot say that the finding of the chancellor is against the preponderance of the evidence in the instant case. However, this does not mean that appellees may proceed with a construction project that is not in substantial conformance with the plan- and bill of assurance which ' the City Planning Commission approved. The opinion of the expert witnesses that the proposed development would not adversely affect adjacent property values is predicated on the assumption that appellees proceed in accordance with the plan and bill of assurance. Appellants are entitled to protection from any inferior or less sightly type of construction which might well be calculated to affect adjacent property values adversely.
The decree is affirmed.
Griffin Smith, C. J., not participating. | [
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Ed. P. McPaddiN, Justice.
This is a boundary line dispute between adjoining land owners. Willey’s farm is west of Polk’s farm, and this litigation was precipitated when Polk built a fence in the middle of the turn-row road somewhere near the line between the two farms. Willey then filed this action in ejectment, claiming (a) that the fence was not on the true survey line; and (b) that the fence blocked the turnrow roach Polk, in defending the ejectment action, claimed (a) that his line went to the fence by adverse possession; and (b) that the turn-row; road boundary had been established by “long continued acquiescence and occupation. . . .”
The cause was tried to a jury. It was stipulated: (a) that Willey was the record title owner of the SW% of Sec. 12, and the NW1/] of Sec. 13; (b) that Polk was the record title owner of the SE% of Sec. 12 and the NE1^ of Sec. 13. The strip here in controversy is one mile long, and is between the two farms. Willey called as a witness the County Surveyor, J. W. Mitchell, who testified as to the actual survey line, based on government surveys. Mitchell also testified that Polk’s fence (built in 1950) was not on a straight line, and encroached over the actual survey line and onto Willey’s property in varying distances. It was only a few inches at one place, and was more than 26 feet at other places.
Polk introduced evidence that the old turnrow road had been used by the adjoining land owners and others, for many years; that Polk claimed the turnrow road was the line; and that in 1950, he placed a fence in the middle of the old turnrow road for the entire distance of a mile. The jury found that the actual survey line (as testified by the County Surveyor, Mitchell) was the true boundary, and awarded the disputed strip to Willey. Prom the judgment based on the jury verdict, Polk brings this appeal, and urges here the three points now to be discussed.
I. Request for Instructed Verdict. Polk insists that the trial court should have given an instructed verdict in his favor “on the evidence of adverse possession to the turnrow in question by himself, his father and grandfather, for a period of more than forty years.” He fur-, ther claims: “This testimony is not disputed, opposed, questioned, or contradicted in any manner whatever.” But in making this claim, Polk apparently overlooks that even if his possession were adverse, still the possession went only to the east side of the turnrow road, and at no time did it extend to the middle of the turnrow road, where he placed his fence in 1950. His request for an instructed verdict was tantamount to a claim of adverse possession to half of the roadway. Likewise, any question of agreed cases like Peebles v. McDonald, 208 Ark. 834, 188 S. W. 2d never have carried Polk’s claim past the east side of the turnrow road. As regards agreed boundary, the Court submitted to the jury this issue in Polk’s Instruction No. 5, and the jury’s verdict was adverse to him. The trial court was correct in refusing appellant’s prayer for an instructed verdict.
II. Plaintiff’s Instruction No. 1. This instruction, given over appellant’s general objection, reads:
“You are instructed that the testimony of J. W. Mitchell and the documentary evidence introduced by him, together with the stipulation of the parties filed herein constitute as a matter of law prima facie evidence of the correct line and correct corners to the land in dispute so far as it appears from the survey, and must be taken by you as the true line and corners to the land in controversy unless the defendant prove to you by a preponderance of the evidence that some other line and some other corner is the true line and the true corner. ’ ’
Immediately following the foregoing Instruction No. 1, the court gave plaintiff’s Instruction No. 2, which reads:
“You are instructed that in order for the defendant to establish title or ownership by adverse possession to any part of the NWx/i of 13 or the SW1/^ of 12, being the land west of the line shown by the plat and record of J. W. Mitchell, the record title to which is stipulated as being in J. K. Willey, the defendant must prove by a preponderance of the testimony that for a period of more than seven (7) years he, and those under whom he claims title, have had actual, open, notorious, hostile and exclusive possession of all of the area to which he claims title.’’
In the briefs in this Court, appellant does not claim any error regarding Instruction No. 2, but claims that Instruction No. 1 gave prima facie force to the testimony of the County Surveyor, instead of the record booh to be kept by the County Surveyor, as provided by § 12-1220, Ark. Stats. In support of his argument, appellant cites Parker v. Cherry, 209 Ark. 907, 193 S. W. 2d 127. Another case in connection with the surveyor’s testimony, as compared with his book, is Horn v. Hays, 219 Ark. 450, 243 S. W. 2d 3.
The plaintiff’s Instruction No. 1 was not an instruction on the force and effect of the testimony of the County Surveyor, as compared with the County Surveyor’s record: rather the Instruction No. 1 was to the effect that the Surveyor’s testimony, together with the stipulation of the parties, constituted prima facie evidence of the correct line. The Instruction No. 1, along with the Instruction No. 2, really explained to the jury that the surveyed line would be the boundary line unless the appellant could establish his' claim past the surveyed line by the evidence that he offered. The Instruction No. 1, when considered in this light, is not subject to the general objection which the appellant offered against it.
III. Instruction No. 4. This read:
“You are instructed that under the statutes of Arkansas it is illegal to obstruct a public road. In order to be a public road it is not necessary that the road be laid out or created by the county or state. It may be so created by prescription, that is, the public use thereof openly and adversely for more than seven (7) years. If you find by a preponderance of the testimony that the road here involved was, at the time of the construction of the fence, a public road, and that the fence as constructed by defendant would have and did obstruct said road, then the construction of said fence was unwarranted, improper and illegal. ’ ’
As his reason for claiming this instruction to have been improper, the appellant says:
“Prior to the erection of the fence ... the turnrow was to a negligible extent used as a sort of thoroughfare by tenants on the Polk place, by a very few people north of the Polk place, and one house on the Baker place. The turnrow was never graded, being just a wagon track. The turnrow varied in width, in some places merely a ditch, and in the wintertime was impassable because of water. No one ever objected to people using it as a road. ’ ’
Appellant cites inter alia these cases: Merritt Mercantile Co. v. Nelms, 168 Ark. 46, 269 S. W. 563; Brumley v. State, 83 Ark. 236, 103 S. W. 615; Jones v. Phillips, 59 Ark. 35, 26 S. W. 386; Caddo River Lumber Co. v. Rankin, 174 Ark. 428, 295 S. W. 52; and Harrison v. Harvey, 202 Ark. 486, 150 S. W. 2d 758.
There was evidence that the people on the Willey farm had been using the road for many years, and that people who lived north of both of these farms had used this road. We are of the opinion that such evidence was sufficient to justify the court in submitting the pub'ie road issue to the jury, under the authority of such cases as Patton v. State, 50 Ark. 53, 6 S. W. 227; McCracken v. State, 146 Ark. 300, 227 S. W. 8, 228 S. W. 739; and McLain v. Keel, 135 Ark. 496, 205 S. W. 894. In Patton v. State, supra, we said:
“It is not absolutely necessary to establish a public highway that its boundary lines be surveyed and that it be opened and appropriated to public use, under an order of the county court. It can be established by a dedication on the part of the owner of the soil over which it runs, and the assent thereto and use thereof by the public, or by prescription.”
The jury, by its verdict, found that the surveyed line, as testified to by the County Surveyor, was the true line, so the issue of the roadway became of no importance, and even if there had been any error in submitting this question, the same was rendered harmless by the jury’s ver-’ict.
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Minor W. Millwee, Justice.
This is a suit by ap-pellee, Preston Mosley, to cancel a deed to his home in the City of Little Rock issued by the State of Arkansas to appellant, Florence Schuman, on January 3, 1950.
The complaint filed August 22, 1950, alleged the invalidity of the 1947 tax sale, under which the lot forfeited to the State, on several grounds. It was also alleged that the state deed was issued to appellant upon her payment of $56.75, plus a fee of $1 for the deed to said lot and other lands purchased by appellant on the same date. The complaint further alleged: “That plaintiff lias tendered the sum of $57.75 to the said Florence Schu-man in full payment of delinquent taxes, penalties and costs due thereon, but said tender was refused by the said Florence Schuman; and petitioner now tenders to the court and offers to pay said defendant the amount paid by her in taxes, penalties and costs for the above described tract of land. ’ ’
Appellant filed no pleading but counsel then representing her appeared at the trial on August 29, 1951, and asked one witness on cross-examination two questions relating to the validity of the tax sale. The record reflects that upon being informed that appellant would convey the lot to appellee upon payment to appellant of the amount she advanced for the state deed, counsel for ap-pellee, on December 20, 1950, mailed to counsel then representing appellant a check of $57.75 and a quitclaim deed to be executed by appellant. The check and deed were delivered to Manie Schuman, husband of appellant. Appellant retained the check but refused to execute the deed -and the case was then set down for trial.
Appellant did not object to any evidence adduced at the trial or question in any manner the amount or sufficiency of the tendered check which she still retains. A decree was entered holding void and cancelling the state deed to appellant and finding that appellee had made “a proper legal tender” to appellant. No exception was noted in the decree to the court’s finding.
In urging a reversal appellant now concedes that the tax sale upon which her state deed is based was void. But she seeks to question for the first time on this appeal the sufficiency of the tender on the ground that the check, which she received for taxes, penalty and costs incident to the tax sale, did not include six percent interest from the date of payment to the date of the decree as provided in Ark. Stats. § 84-1119. This contention Comes too late.
Appellant says the trial court erroneously' refused to award such interest, but there is nothing in the record to indicate that the sufficiency of the tender was ever questioned in the trial court. It is well settled that a litigant cannot on appeal raise an issue which was not presented to the trial court. This rule was applied in circumstances similar to those involved in the instant case in Gerstle v. Vandergriff, 72 Ark. 261, 79 S. W. 776. In that case plaintiff’s suit to cancel the defendant’s tax deed was defended solely on the ground that the tax deed was valid. On appeal from a decree for plaintiff, the defendant for the first time raised the objection that there was a lack of tender by plaintiff of the taxes, costs, etc. before bringing suit. The court held that defendant waived the objection by not raising it in the trial court. “The object of requiring the parties to present all questions and issues to the lower court before they can be presented to this court is to have the lower court pass thereon, so that this court upon appeal may determine whether or not such ruling was erroneous. The purpose is also in furtherance of justice to require the party to first present the question he contends for in the lower court, so that the other party may not be taken by surprise.” Jones v. Seymour, 95 Ark. 593, 130 S. W. 560. If the sufficiency of the tender had been questioned in the trial court, appellee would .have had an opportunity to cure it by adding the small amount of interest to the tender which he made.
Nor can we agree with appellant’s further contention that the chancellor erroneously rendered judgment against her for all costs in the trial court. Since appellant waived her objection to the sufficiency of the tender, the validity of her tax deed was the only issue presented to the chancellor. The necessity of a trial of this issue apparently resulted from appellant’s retention of the tender without questioning its sufficiency while refusing to execute the quitclaim deed in compliance with a prior agreement. Appellee prevailed on the issue of the validity of the tax deed and the correctness of this decision is now admitted by appellant. The matter of assessment of costs in equity is within the discretion of the chancellor. Unless there is an abuse of that discretion we will not disturb the award. Jones v. Graham, 36 Ark. 383; Thomas and Ozan Lumber Co. v. Smith, 215 Ark. 527, 221 S. W. 2d 408. The equities here are with the appellee and we are unable to say the chancellor abused his discretion in assessing the court costs against appellant.
Affirmed.
Justice George Eose Smith, not participating. | [
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George Rose Smith, J.
This is a divorce suit filed by the appellant against her husband, Dr. G. E. McClure. The chancellor granted a divorce to Dr’. McClure upon his cross-complaint and also canceled certain deeds by which Dr. McClure had conveyed a hospital building to his wife during their marriage. Mrs. McClure appeals from that part of the decree canceling the deeds.
The chancellor found that the conveyance of the building was for the purpose of defrauding McClure’s creditors, but tlie transaction was set aside upon the additional finding that Mrs. McClure was a party to the attempted fraud. As an alternative reason for the decree the trial court held that the property should be restored to the husband pursuant to the statute which provides that all property which either spouse has obtained from the other during the marriage “and in consideration or by reason thereof” shall be restored by the decree of divorce. Ark. Stats. 1947, § 34-1214. In this court the main issue is whether the chancellor’s cancellation of the deeds can be sustained upon either of the grounds suggested.
The evidence indicates pretty clearly that this building was deeded to Mrs. McClure in the hope of putting it beyond the reach of Dr. McClure’s creditors. In 1947 McClure was indicted for murder and abortion; see McClure v. State, 214 Ark. 159, 215 S. W. 2d 524. At about the same time two civil suits for malpractice were filed against him, the complaints asking for judgments totaling $277,000. While both the criminal and the civil cases were pending Dr. McClure, on April 28, 1948, conveyed the building in controversy to his wife. As we shall narrate in a moment, McClure testified to a number of different and contradictory motives for putting the title in his wife’s name, but the chancellor was fully justified in believing that the conveyance was intended as a barrier to the collection of the grantor’s debts.
On this set of facts the appellee is not entitled to relief. A husband who conveys land to his wife in fraud of creditors is not permitted to invoke the assistance of equity in setting aside the deed; he does not come into court with clean hands. Knight v. Glasscock, 51 Ark. 390, 11 S. W. 580; Maupin v. Gains, 125 Ark. 181, 188 S. W. 552. The appellee relies, upon Sliman v. Moore, 198 Ark. 734, 131 S. W. 2d 1, but that decision is not controlling. There the holder of a mortgage that had been fraudulently given to defeat the mortgagor’s creditors was not permitted to foreclose, in the face of his admission that he had paid nothing for the notes and had merely co-operated in the debtor’s attempt to ob struct outstanding claims. There being no mortgage debt, the mortgagor had a complete defense to the attempted foreclosure, and we refused to allow the mortgagee to take advantage of his own participation in the wrong as a means of acquiring the property. There is nothing in the opinion indicating any intention to over-' turn the settled rule that a deed executed in fraud of creditors is good as between the parties.
Nor should the property be restored to the appellee under the statute cited above. The long established interpretation of this law is that it applies either to property rights acquired under an antenuptial settlement or other inducement to the marriage or to property rights flowing from the marriage by operation of law, such as inchoate dower. The statute does not require the wife to surrender everything she may have been given during the existence of the marriage. McNutt v. McNutt, 78 Ark. 346, 95 S. W. 778; Turner v. Turner, 219 Ark. 259, 243 S. W. 2d 22.
In spite of the explicit finding that McClure conveyed the building to his wife in fraud of creditors we are asked to affirm the decree upon the theory that the doctor was actuated by some other motive in making the transfer of title. In testimony given at a series of hearings McClure at one time or another testified that he executed the deed (a) voluntarily, to enable Mrs. McClure to pay the debts then facing him, (b) voluntarily, to provide her with a subsistence if he should be sentenced to the penitentiary, (c) reluctantly, upon her insistence that the title be placed in her name rather than that of his mother, and (d) under duress, at a time when she was confining him to his home and preventing him from consulting his attorney. The theory of the present contention is that the transaction resulted in the creation of an implied trust. The evidence to engraft such a trust upon an absolute deed must be clear, unequivocal, and convincing, and we would have some difficulty in saying that any one of the appellee’s four versions of the matter is established by evidence of the necessary cogency, in view of the fact that the acceptance of any of the appellee’s theories involves the rejection of others that he also swore to be true.
Reversed. | [
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Ed. F. McFaddin, Justice.
Appellee recovered judgment against appellant on a bond appellant had executed pursuant to the laws of the State of Louisiana. Such is the case now presented.
The Colonial Baking Company (hereinafter called “Colonial”) is a Delaware corporation, but domesticated in Arkansas, and with a bakery plant in Little Rock. From its Little Rock plant, Colonial made to consignees in Louisiana, the shipments involved in this litigation. The United States Fidelity & Guaranty Company (hereinafter called “Guaranty Company”) is a Maryland corporation, but domesticated in both Arkansas and Louisiana, and owns personal property in Pulaski County, Arkansas.
In the course of its business, Colonial received at its Little Rock plant, orders for certain of its products from retailers in the Cities of Monroe and Shreveport, Louisiana. These bakery products were manufactured by Colonial in Little Rock, and shipped C.O.D. via motor carrier to the consignees in Louisiana. The motor carrier was Smith Transportation Company (hereinafter called “Smith”) which was a carrier for hire over designated routes from Little Rock to Monroe and Shreveport, Louisiana. Smith accepted the shipments from Colonial, under an agreement .to deliver the shipments to the purchasers only on full payment, which payment Smith agreed to promptly remit to Colonial. Smith in fact received from the consignees the payments amounting to several thousand dollars, but defaulted in delivering such payments to Colonialand Smith is now bankrupt.
In order to obtain a permit as a motor carrier in Louisiana, Smith was required by statute and by order of the Louisiana Public Service Commission, to make a bond in the sum of $3,000. This bond was made with Smith as principal, and Guaran^ Company as surety, and the pertinent language of this bond will be recited in Topic II infra. Colonial gave the Guaranty Company, in Little Rock, due notice of Smith’s default, and made demand on the Guaranty Company for payment, in accordance with the bond; and when such payment was refused, Colonial filed action against the Guaranty Company in the Pulaski Circuit Court. Upon the facts stipulated, as hereinbefore detailed, Colonial recovered judgment against the Guaranty Company for $1,107.59, which Colonial concedes is all it is entitled to recover under the terms of said bond. To reverse that judgment, the Guaranty Company has appealed, and presents the two questions to be discussed.
I. May Two Foreign Corporations Use the Courts of Arkansas in a Claim Arising in Another State¶ If Colonial had a cause of action for interstate shipments (a point to be considered in Topic II), then Colonial’s canse of action was transitory and conld be brought wherever jurisdiction of the parties could be obtained. American Railway Express Co. v. H. Rouw Co., 173 Ark. 810, 294 S. W. 401; Yockey v. St. Louis-San Francisco Ry. Co., 183 Ark. 601, 37 S. W. 2d 694.
We hold, under the authority of the Yockey case, supra, that the Pulaski Circuit Court was correct in taking jurisdiction in the case at bar. In the Yockey case, the plaintiff, a resident of Missouri, received injuries in that State at a railroad crossing of the St. Louis-San Francisco Ry. Co., which was a Missouri corporation. Yockey sued the railway company in the Circuit Court of Crawford County, Arkansas, in which County the railway had its lines and an agent upon whom process was served. The railway company offered the same objections in the reported case as the Guaranty Company offers in the case at e., all of the parties are nonresidents of Arkansas, and the cause of action arose in another State. But we held that the Arkansas Court had jurisdiction; and Chief Justice Hart, speaking for the Court, said:
“The defendant owns and operates a line of railroad in this State, and has voluntarily placed agents here in the conduct of its business who are authorized to receive service of summons under our statute. It has become in all essential respects a domestic corporation, in so far as transacting business in this State is concerned. The right of action to the plaintiff was transitory, . . .”
Among other cases, appellant cites and strongly relies on Grovey v. Washington Natl. Ins. Co., 196 Ark. 697, 119 S. W. 2d 503. In that case, Grovey was a resident of Illinois, and Washington National Insurance Co. was a corporation of the same State, but domesticated in Arkansas. The Insurance Company made a contract employing Grovey as a general agent in Missouri, Kansas, Oklahoma, Texas, and those portions of Arkansas in which the Company accepted business. to Insurance Company breached the contract, and Grovey sued in Arkansas for damages. In refusing jurisdiction of the Arkansas Courts to Grovey, Mr. Justice McHaney, speaking for this Court, said:
“While such portions of Arkansas as appellant saw fit to accept business from were covered by the contracts, still they do not arise out of business done on contracts made in Arkansas. In other words, the contracts in suit being made outside of the state by nonresidents of the state, have no relation to any business transacted by appellee in this state. No policyholder is or could be interested in these contracts, which were made, as we understand it, while appellant was a citizen of Oklahoma, but perhaps made, signed and delivered in the state of Ilinois, where both appellant and appellee are now residents. They relate to commissions which appellant might or might not earn in the states named, including Arkansas, if appellee saw fit to accept any. business from Arkansas.”
In distinguishing the Grovey case from the Yockey case, Mr. Justice McHaney said of the Yockey case:
“It differs from the instant case in many respects. There it (i. e., By. Co.) owned a line of railroad in the state, had become, as the court said, in all essential respects a domestic corporation. Here, appellee owned no property in this state, even though appellant contends that it does, because it had premiums coming due from policyholders in this state. But unpaid premiums are not property. They may never be paid. It maintains no place of business in this state. It has soliciting agents, but they furnish their own place of business, work only when they wish to do so and receive a commission on business written. Snob applications as they receive are transmitted to the home office for acceptance or rejection. We think this distinction is clearly illustrated by the comments of the late Chief Justice Hart, speaking for the court in the Yockey case. . . .”
To discuss in detail the other cases cited by the appellant would unduly prolong this opinion. It is sufficient to say that Colonial’s cause of action was transitory ; that both Colonial and the Guaranty Company are corporations domesticated in Arkansas; that Guaranty Company has property and agents in Pulaski County, Arkansas; that Colonial has its bakery plant in Pulaski County, Arkansas, at which plant were manufactured the products it shipped to Louisiana; and that the shipments resulting in this litigation originated in Pulaski County, Arkansas. All of these facts add up to the result that the Pulaski Circuit Court was correct in taking jurisdiction in the case at bar.
II. Does the Bond Signed By the Guaranty Company Cover Interstate Shipments¶ This question has given us more serious concern than the first question. In order to obtain a motor carrier permit and use the highways of Louisiana, Smith posted a bond with the Louisiana Public Service Commission, with the Guaranty Company as surety thereon. This bond recited, inter alia:
in accordance with the terms and provisions of Act No. 301 of 1938 of the Legislature of the State of Louisiana, the Principal is operating motor freight vehicles as a common carrier under the jurisdiction of the Louisiana Public Service Commission.
“Now, therefore, the condition of this obligation is such that if said Principal shall pay and remit promptly such money as may be due to shippers or consignors or other lawful' owners arising out of collection-delivery shipments made by such persons; and conduct its business according to the provisions of Orders Nos. 751 and 759 of the Louisiana Public Service Commission as relating to collect-on-delivery shipments, then this obligation (hall be mill and void; otherwise to remain in fnll force md effect. . . .
“It is likewise mutually understood and agreed that vhere a right of action exists in favor of any person or >ersons by reason of the neglect, failure or refusal of the 1 aid Principal to pay or remit to shippers or consignors \ t other lawful owners, such money as may be due arising out of collect-on-delivery shipments made by such person or persons, such right of action shall survive in favor of such person or persons as now provided by law.
“It is also understood and agreed, that this bond shall cover any action instituted by any person who may sustain loss by reason of the neglect, failure or refusal of said Principal to pay or remit to shippers or consignors or other lawful owners arising out of collect-on-delivery shipments made by such person or persons, even though such action be instituted solely against the Principal. ’ ’
Appellant insists that the bond was made to protect Louisiana intrastate C.O.D. shipments, and not to protect interstate C.O.D. shipments; and appellant says:
‘ ‘ Certainly the Louisiana Public Service Commission cannot fix rates chargeable in interstate commerce. State of Missouri v. Kansas Natural Gas Company (1924), 44 S. Ct. 544, 265 U. S. 298, 68 L. Ed. 1027. Certainly the Louisiana Public Service Commission could not require a bond as a condition to engaging in interstate commerce. Seelig v. Baldwin (D. C. N. Y. 1934), 7 F. Supp. 776. S. Ct. 120, 293 U. S. 522, 79 L. Ed. 632. Certainly the Louisiana Public Service Commission could not ‘supervise, govern, regulate and control’ or ‘prescribe rules and regulations’ if such action on the part of the Louisiana Public Service Commission were meant to apply to interstate commerce.”
Notwithstanding appellant’s arguments, we reach the conclusion that the bond here involved covers an interstate shipment like the one in question. The bond was not a burden on interstate commerce, but in aid of it. See Nippert v. City of Richmond, 327 U. S. 416, 90 L. Ed. 760, 66 S. Ct. 586. The Guaranty Company was a paid surety on Smith’s bond, and in the absence of any language excluding interstate shipments, then we perceive no reason why such shipments would not be included; because any doubts in construction of such a bond, are construed against the paid surety. Mass. Bonding Co. v. Higgins, 117 Ark. 372, 174 S. W. 1150; Federal Union Surety Co. v. McGuire, 111 Ark. 373, 163 S. W. 1171; American Bonding Co. v. Morrow, 80 Ark. 49, 96 S. W. 613.
The bond is not limited to intrastate commerce; and a study and analysis of the Louisiana Act 301 of 1938 shows no language limiting the bond to intrastate commerce. Section four of the Act says: “The Commission shall have and exercise all necessary power and authority to supervise, govern, regulate and control all motor carriers. . . .”
The Act makes no distinction whatever regarding transportation originating within or without the State of Louisiana. It is true that Louisiana Public Service Commission’s authority to regulate motor carriers is limited to those carriers transporting persons and property on the public highways and over the public bridges of that State. the absence of any statutory restriction or restrictive language in the conclude that the $3,000 C.O.D. bond was intended to cover all losses and shortages occurring by reason of the operation of such motor carrier in the State of Louisiana, even though the shipments originated in another state.
The Louisiana Legislature of 1948, by Act 202, amended Section four of the Act 301 of 1938; and the amendatory language makes it rather obvious that the original Act of 1938 intended the bond to cover both interstate and intrastate shipments; for the only appreciable change made under the 1948 amendment was the inclusion of the following provision:
“In those eases where the common carrier’s solvency is such that it has qualified with the Interstate Commerce Commission as a seif-insurer, as authorized by Sec. 215 of the Federal Motor Carrier Act of 1935, the Louisiana Public Service Commission may, in its discretion, permit such common carrier to be a self-insurer in Louisiana.”
Our study discloses that the Supreme Court of Louisiana has not passed on the question here presented, so we are without a guiding case from the State which required the bond. In the absence of such a decision, we have been obliged to make our ovni- construction. In so doing, we reach the conclusion that the bond covered the interstate C.O.D. shipments here involved.
The judgment is in all things affirmed.
Mr. Justice Millwee not participating.
Originally the name was Summer & Smith Truck Lines, but was changed to Smith Transportation Company.
The bond was for $3,000, and Smith’s total default to Colonial was in excess of that amount, but the Guaranty Company’s liability under the bond was limited to $3,000 and the Guaranty Company has already paid to other claimants in Louisiana the sum of $1,892.41, so that only $1,107.59 remains as the Guaranty Company’s liability under the bond.
Some of the other cases cited by appellant are National Liberty Ins. Co. v. Trattner, 173 Ark. 480, 292 S. W. 677; Protas V. Modern Investment Corp., 198 Ark. 300, 128 S. W. 2d 360; Barnett v. National Surety Corp., 195 Miss. 528, 15 So. 2d 775; Commonwealth v. Beals, 139 Misc. 785, 249 N. Y. Supp. 232; Long v. Ferris, 196 Misc. 567, 94 N. Y. Supp. 2d 493; Bower v. Watson, 146 Tenn. 626, 244 S. W. 362, 26 A. L. R. 991.
In Prudential Ins. Co. v. Ruby, 219 Ark. 729, 244 S. W. 2d 491, we cited cases and quoted authorities about the court of the forum acting-in the absence of a decision from the court of the place of the contract. | [
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Ed. F. McFaddxN, Justice.
This is a suit by a taxpayer and two patrons of School District No. 1 of Boone County (hereinafter called “School District”); and is an attack on various transactions" of the School District.
In November, 1951, Dowell filed this suit against the School District, two of the Directors, the School Superintendent and the Sureties on the bond of the School Superintendent. The complaint made the allegations hereinafter discussed. Later Burnett and Walker, each a patron of the School District, intervened and joined Dowell in his complaint. Although none of the plaintiffs is an attorney, the Court permitted each plaintiff to represent himself; and the learned Chancellor was most patient in the entire proceeding. A demurrer was sustained to many of the allegations of the complaints; but there was a trial on the merits as to the remaining portions of the case. The Chancery Court did not grant the plaintiffs all the relief they desired, so they have appealed. For convenience, we will refer to the parties as they were styled in the trial court, i. e., “plaintiffs” and “defendants”.
I. Registration Fee. Dowell’s finally that Smith, as Superintendent of Schools, was requiring that each patron of the school pay a registration fee for the child of such patron attending school. The complaint alleged this registration fee to be unconstitutional. It was conceded that even though Dowell was a taxpayer in the district, nevertheless, he had no children in the school and had not been affected by any such registration fee requirement. Therefore, as to Dowell, a demurrer was properly sustained, insofar as tlie registration fee matter was concerned. In Lienhart v. Bruton, 207 Ark. 536, 181 S. W. 2d 468, we held that a litigant conld not question the validity of a statute unless he brought himself within the class affected by it. In the opinion, Mr. Justice Kjtox said:
“It is well settled that a litigant can question a statute’s validity only when and insofar as it is being, or is about to be, applied to his disadvantage. Wiseman v. Phillips, 191 Ark. 63, 84 S. W. 2d 91; Arkansas Power & Light Co. v. West Memphis Power & Water Co., 184 Ark. 206, 41 S. W. 2d 755; Ferguson v. Hudson, 143 Ark. 187, 220 S. W. 306.”
We think the rationale of the foregoing holding applies to the situation of Dowell in the case at bar, insofar as concerned the registration fee.
Messrs. Burnett and Walker adopted Dowell’s allegation about the registration fee; and Burnett and Walker each had a child in the school. Here are their allegations in this regard:
“They state that they have suffered great humiliation and are still being humiliated by the illegal exactions sponsored bjr R. L. Smith, Superintendent of the Harrison Public School by demanding of them that they pay -registration fees for their children to enter the public free school; and further state that their children suffered great humiliation by not being delivered books for three days, while children upon which registration fees were paid received their books on the first day of school.
“Plaintiffs further state the defendant, R. L. Smith, will continue to make such illegal exactions for such registration fees at the beginning of the second semester term if he is not restrained from making such illegal demands upon them and all others.”
It was the contention of the defendants that the registration fee was wholly voluntary, and was collected to enable the school to obtain $7,000 or $8,000 additional funds thought to be necessary for the running of the school for the full term. But the facts were never de veloped. When Burnett and Walker admitted to the Court that neither of them had paid the registration fee, and that their children had nevertheless attended school and received books the same as all other pupils, the trial court held that the registration fee issue passed entirely out of the case. Due to the fact that the appellees concede that the registration fee has been discontinued and offer of refunds made, we are affirming the on the basis advanced by the trial court, hut became the registration fee has ceased.
We think that it is well to mention that no such registration fee can be required in the public schools of Arkansas. Our Constitution says:
“Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction.”
Some of the cases involving this provision are: Dickinson v. Edmondson, 120 Ark. 80, 178 S. W. 930, Ann. Cas. 1917C, 913; Krause v. Thompson, 138 Ark. 571, 211 S. W. 925; Special School District No. 65 v. Bangs, 144 Ark. 34, 211 S. W. 1060.
In the case last cited, the Legislature had passed a law permitting a special school district in Logan County to charge tuition; and the Act was held unconstitutional by this Court, as being in conflict with Article 14, § 1, which guarantees that instruction be “gratuitous”.
In Burrow v. Pocahontas School District, 190 Ark. 563, 79 S. W. 2d 1010, the school district did not have sufficient money to run a free school for the full term; so the school district ran the free school for as long as it could, and then followed Act 169 of 1931 to permit the use of the buildings by teachers for the purpose of operating a tuition school. Such procedure was sustained. The distinction is, that as long as a public school is operated as such, then there must he ‘ ‘ gratuitous instruc tion”, as stated in the Constitution; and a school district cannot by as a registration the clear spirit and plain wording of the Constitution. But, because, as previously mentioned, the registration fee has been abandoned in this case, we affirm the Chancery Decree on this point.
II. Act No. 2781951. Dowell alleged that the School District was paying to its Superintendent, ft. L. Smith, and to other teachers in the schools “salaries in excess of the amounts fixed by law”; and the law claimed to be violated was “the provision of Act 278 of the Acts of the General Assembly of 1951”. The Chancery Court was correct in sustaining a demurrer to that portion of the said complaint containing such allegations as related to Act 278 of 1951. Such Act does not fix the maximum salaries that may be paid school teachers; rather the Act method for determining the minimum school budget.
III. School Director’s Oath Of Office. Dowell alleged that two of the School Directors (Messrs. Garrison and Milburn) had been interested in the private sale of supplies to the School District; and Dowell sought an injunction to prevent further sales and also prayed for the return to the District of all moneys received by each such director. The Chancery Court overruled the demurrer to Dowell’s complaint as regarding these matters; and this phase of the case was tried on its merits. The decree (1) enjoined the directors from having any future private financial dealings with the School District; but (2) refused to adjudge return of money to the District from past transactions. Dowell has appealed from the latter portion of the said decree.
The Chancery Court was correct in both particulars. Even though the two school directors had been favoring the district in prices, etc., nevertheless they should not deal privately with the district. The oath of office of School prescribed by § 80-505 Ark. Stats. —says in part:
“. . . I will not be interested, directly or indirectly, in any contract made by the District of which I am a Director, except that said contract be for materials bought on open, competitive bid and let to the lowest bidder. . . .”
In the light of the quoted language, it is clear that no school director should make private sales of supplies to the School District; and the Chancery Court was correct in its ruling in this regard.
But when we examine the evidence to see the nature of the dealings in the case at bar, we see that no unfair advantage was taken of the School District in any particular, and that the School District received a fair return in all the transactions concerned:
a) As regards Garrison, the allegation was that the District had issued him a warrant for $26. It was established without contradiction that some workmen had been doing some duly authorized repair work on the school property; that their labor amounted to $26; that when these men completed the work they wanted their money; that the school office was closed; that Mr. Garrison, as an act of kindness to the workers, gave them $26 out of his own funds; that the next day he turned in their bills to the School District, and received a warrant to himself for the same amount he paid the workmen. The foregoing is the entire extent of Garrison’s “dealings” with the School District. Certainly the District received quantum meruit for the $26 it paid Garrison.
b) Milburn’s dealings took another form. He was interested in a wholesale grocer company, and such company sold the School District supplies at wholesale cost. It was established, without contradiction, not only that the District received every item for which it paid the wholesale grocer company, but also that the District saved hundreds of dollars through Milburn’s willingness to have his wholesale grocer company forego profits in dealing with the School District.
The said Directors assumed the burden of proof, and established conclusively that the District received full fair value from the aforesaid dealings. The case at bar, on this point, is ruled by Smith v. Dandridge, 98 Ark. 38, 135 S. W. 800, 34 L. R. A., N. S. 129, Ann. Cas. 1912D, 1130. See, also, Revis v. Harris, 219 Ark. 586, 243 S. W. 2d 747. The District received full benefits from the questioned dealings; and there was no “excess of selling price over fair market price.” Therefore, the Chancery Court was correct in refusing Dowell’s plea for a return of money to the District.
Affirmed.
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GrieeiN Smith, Chief Justice.
Paul Rogers and his wife, in an automobile owned and driven by the husband, collided with or were hit by an automobile driven by Miss Esma Sue Crawford. The incident occurred at the intersection of Caddo and Sixth streets in Arkadelphia. Both cars were damaged. Mrs. Rogers sustained personal injuries and joined her husband in an action against Miss Crawford who cross-complained, asserting that the collision and consequent damages and injuries were due to the carelessness of Paul Rogers, whose negligence should be imputed to Mrs. Rogers because the two were engaged in a joint enterprise. The jury’s verdict absolved each participant. In the Rogers motion for a new trial seventeen assignments were urged as errors.
No witness contradicted the testimony of Paul Rogers that on Saturday preceding the collision Sunday afternoon at three o’clock he asked Mrs. Rogers and two of their children to accompany him to Lake Hamilton to fish. Mrs. Rogers admitted that she was quite willing to go, enjoyed fishing, and that the arrangements were satisfactory. But she did testify that Paul was going “over there anyway” and that she went along for her own enjoyment. When the collision took place Rogers and his wife were traveling east on Caddo street. Their speed is a matter of dispute, but Paul estimated that when Sixth street was reached-he was traveling approximately 20 miles an hour. Testimony was that he had virtually stopped at Seventh street while another car made a left turn, and that the speed attained when Sixth street was reached had been “picked up” in the intervening block. Caddo street is a part of Highways Seven and Eight.
Miss Crawford had been out of the city and was returning on the old Gurdon Highway. In entering Sixth street she turned north, driving at a speed she estimated to be 15 or 20 miles an hour. Caddo is a through street. A stop sign warns traffic entering it from Sixth. Miss Crawford’s testimony is that she came to a fnll stop in obedience to this warning, then entered the intersection at five miles an hour and signalled a left turn. She was struck by the Rogers car while her automobile was in the southeast corner of the cross-area. Miss Crawford says that she stopped immediately, but that the Rogers car continued east on Caddo 150 or 200 feet.
The only issue presented by the appeal relates to instructions. They cover 17 typewritten pages, legal size. An objection urged in appellants’ brief is that these directions to the jury were not given in proper sequence and that this amplified uncertainty in respect of the applicable law. Appellee calls attention to the fact that this objection was not made to the trial court, and thinks acquiescence must be implied.
It is generally held that the order of giving instructions is a matter resting within the court’s discretion; and unless unusual circumstances clearly disclose prejudice a judgment will not be reversed because the losing party believes that a different arrangement would have been better. [See cases cited in Branson’s Instructions to Juries, Reed’s 3d ed., v. 1, p. 249].
It is as we think, with controlling merit —that the volume of instructions necessarily confused a jury of laymen. Two instructions given on behalf of the defendant defined preponderance of the evidence. The second (defendant’s Instruction No. 4) is binding in that it concludes with the expression, “. . . then the party on whom the burden rests to prove the same by a preponderance of the evidence must be deemed to have failed in regard thereto.” It is not clear whether “thereto” refers to ‘ ‘ the same ’ ’ or to the case as a whole.
Defendant’s Instruction No. 7 explains proximate cause by saying that any injuries sustained by the plaintiff “. . . must have been the natural and probable consequences of the alleged negligent acts or omissions.” It then goes on to say that “It is not necessary that the effect of the negligent acts or omissions, if any, would in all cases, or even ordinarily, be to produce the consequences which followed. . . .”
This language is taken almost by copy from Helena Gas Company v. Rogers, 104 Ark. 59, p. 62, 147 S. W. 473. Judge Kirby, who wrote the opinion, cited as authority for the language first quoted Milwaukee Ry. Co. v. Kellogg, 94 U. S. 476, 24 L. ed. 256. Mr. Justice Strong, who delivered the opinion, said that the question [in determining proximate cause] must always be whether there was an intermediate activation disconnected from the primary fault, and self-operating, which produced the injury. But, said the Judge, the inquiry must be answered in accordance with common understanding, [for] “in a succession of dependent events an interval may always be seen by an acute mind between cause and its effect, though it may be so imperceptible as to be overlooked by a common mind. ... In the nature of things there is in every transaction a succession of events more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts and ascertain whether they are naturally and probabty connected with each other by a continuous sequence, or are dissevered by new and independent agencies; and this must be determined in view of the circumstances existing at the time.”
A second citation in support of the Bogers decision-St. Louis, I. M. & S. Ry. Co. v. Bragg, 69 Ark. 402, 64 S. W. this language by Judge Biddick: “We therefore feel compelled to hold that the long train of physical ills of which [Mrs. Emma Bragg] complained was not the natural or probable consequences of [the railroad company’s] negligence. No prudent man, knowing all the circumstances, could have foreseen such consequences; and the defendant, under the rule stated, is not responsible for them.”
This citation is followed in the Bogers case by a statement (substantially included in the case at bar), that “It is not necessary that the effect of the act or omission complained of would in all cases, or even ordinarily, be to produce the consequences which followed, but it is sufficient if it is to be reasonably apprehended that such an injury might thereby occur to another while exercising his legal right in an ordinarily careful manner; or, in other words, if the act or omission is one which the party ought, in the exercise of ordinary care, to have anticipated as likely to result in injury to another, then he is liable for any injury proximately resulting therefrom, although he might not have foreseen the particular injury which did happen. ’ ’
It will be seen that foreseeability respecting the precise consequences of a negligent act may be the test of proximate cause in circumstances such as those discussed by Judge Riddick (where Mrs. Bragg complained of consequential illness because she was put off of a train a short distance from the depot platform); but the ability to contemplate a particular injury is not essential if the natural result of the negligent act may, even in extraordinary circumstances, be to injure another or cause damage to property.
The language in Instruction No. 7 difficult for a jury to comprehend comes about when the fact-finders are told that if injuries were sustained by the plaintiff because of the collision with defendant’s car, these injuries, to come within the definition of proximate cause, must have been the natural and probable consequences of the act complained of; but, secondarily, (says the instruction) it is not necessary that the effects of the negligent acts or omissions would even ordinarily produce the consequences which followed. It would seem that if the injuries were the natural and probable result of the conduct complained of, then such conduct would ordinarily produce these results; but the instruction is to the contrary. But again we are met with the opinion written by Judge Kirby in the Rogers case. If there is an explanation it is that the court thought the holding- was appropriate in view of the facts there presented. But here, under an allegation that a stop sign had been passed and that the wreck occurred because the two cars came together within the intersection, the inconsistency of the instruction is apparent.
The concluding part of defendant’s Instruction No. 9 told the jury that if Miss Crawford had entered the intersection before the Rogers car was close enough to constitute an immediate hazard, “then she was entitled to proceed on through the intersection unmolested and was not negligent if she did so, because Rogers would in those circumstances be under a duty to yield the right of way to Miss Crawford, even if she may not have stopped at the stop sign. ‘Intersection’ does not mean the point where the middle or center of two streets would cross each other, but means the entire space which is common to both streets.”
While the definition of intersection is correct, the instruction leaves out of consideration the duty devolving upon the defendant under the last clear chance doctrine. If in fact she “ran” the stop sign at a time when the Rogers car. did not constitute an immediate hazard, there was not a continuing right to proceed if during the interval between entering the intersection and the collision Miss Crawford saw the Rogers car in time to avoid or mitigate the injury and damage. This instruction is binding in that it mentions the circumstances justifying the defendant’s actions and says that in the circumstances described the defendant would not be negligent. The defendant was given a second instruction on proximate cause (No. 10) to the effect that if the evidence did not disclose negligence, “or if her negligence was not the proximate cause of the collision,” then the plain • tiff cannot recover.
There were general objections to all of the instructions. Nos. 8, 9, 11, and 12 were specifically objected to on the ground that they were argumentative, and in addition it was contended that No. 12 was improper because the undisputed evidence showed that Mrs. Rogers did not have a right to direct the car. No. 13 was objected to for the same reason.
Instruction No. 13 was: “You are instructed that Mrs. Rogers, even as a guest, was required to exercise ordinary care for her own safety, [and] ... if you find that Rogers was not keeping a proper lookout, or was driving the car at such a rate of speed or with such a lack of control as to be dangerous to persons riding therein or other vehicles entering the street, and if you find that a person of ordinary prudence riding as an occupant in the ear would, under the same or similar circumstances and in the exercise of ordinary care, have remonstrated with the driver for his failure to keep a lookout and as to the rate of speed or the manner of handling the car, and if you find that Mrs. Rogers failed to remonstrate with her husband, this would be negligence on her part; and if such negligence, if any, contributed in any way to the collision, Mrs. Rogers cannot recover.”
Mrs. Rogers admitted that she had not cautioned her husband on the occasion in question or at any other time; believing, as she expressed it, that suggestions were not necessary. The instruction is copied because it is binding, and because of its proximity to No. 12. Plaintiffs’ Instruction No. 4(a) would have cured any defects in the defendant’s Instruction No. 12 but for the fact that No. 12 is binding.
Unless the facts are undisputed and the evidence conclusively discloses that one who is not driving an automobile was engaged in a joint enterprise with the driver, —an enterprise of a character permitting the negligence of the party at fault to be imputed to one associated with question is one of fact and must be submitted to the jury. Priest v. Silbernagel & Co., 192 Ark. 973, 96 S. W. 2d 466.
Joint enterprise and joint adventure, in legal contemplation, are synonymous terms. Instruction No. 12 permitted the jury to determine whether Rogers and his wife, when the collision occurred, were “engaged in a joint enterprise for their joint benefit.” It also allowed the fact-finders to say whether the husband and wife “had an equal right to direct and govern the operation of the vehicle,” and it told the jury that if Mrs. Rogers had such a right, then she could not recover if the husband’s negligence contributed to the event.
Our conclusion is that testimony on the question of joint adventure or joint enterprise was not of a character creating that relationship within legal contemplation. Paul Rogers was foreman for a lumber company. He and Mrs. Rogers were jointly interested with Paul’s brother in a grocery store, where Mrs. Rogers worked. Their bank account was such that either could check against it. An automobile once owned by the two had been disposed of, but the car driven when the collision occurred was in Paul’s name. Its purchase was financed through an Arkadelphia bank and the notes were signed by Paul only.' However, it was conceded that each had a right to use it. The trip to Lake Hamilton was made at Paul’s suggestion. He asked Mrs. Rogers to go with him and inferentially wanted the children to accompany them. Mrs. Rogers testified that “Paul was going over there anyway and he asked me to go fishing. I like to fish and I went and took the two children.” She had nothing to do with Paul’s driving. No directions were given as to the route that was to be traveled. Paul was not cautioned because it had not been fact, Mrs. Rogers had not at any time cautioned her husband about driving, nor did she interfere with his operation of the machine. Although having the right to use the car, she had not in fact driven the car that figured in the wreck.
Instruction No. 12 is as follows: “If you find that Miss Crawford and Paul Rogers were both negligent and that the negligence of each of them contributed to the collision then neither Miss Crawford nor Paul Rogers can recover and in. this event you will then determine whether the negligence of Paul Rogers should be imputed to Mrs. Rogers to bar a recovery by her. In this regard you are instructed that if Mrs. Robbie Rogers was riding-in the car as a guest she is not chargeable with the negligence of Paul Rogers. But if Mrs. Rogers and her husband were engaged in a joint enterprise for their joint benefit, that is, if the object and purpose of the trip in which the Rogers were engaged, was for their joint interest and both Mr. and Mrs. Rogers had an equal right to direct and govern the operation of the vehicle, then the negligence of Paul Rogers, if any, would be chargeable to Mrs. Rogers and if the negligence of Paul Rogers contributed in any way to tbe accident, Mrs. Rogers cannot recover.”
No doubt this instruction was written with Stockton v. Baker as a pattern, 213 Ark. 918, 213 S. W. 2d 896. There Mrs. Baker owned the automobile and was driving it. Her husband was a retired railroad engineer and did not own or drive a car. He was on the front seat beside Mrs. Baker when experienced driver of 17 to pass a truck. When the automobile, responsive to Mrs. Baker’s efforts, had proceeded to the left and forward far enough for Baker to observe oncoming traffic, he apparently saw the taxicab with which the collision occurred and shouted, “Look out! ’ ’ The warning was either disregarded or came too late. Mrs. Baker sought compensation from Stockton, driver of the taxicab with which she collided. She also asked for $10,000 for the benefit of her husband’s estate, he having died shortly after the mishap as a result of injuries there sustained. The questioned instruction given at Stockton’s request was:
“If you find from a preponderance of the evidence that J. E. Baker and his wife were engaged in a joint enterprise, the negligence of Lillie Baker, if any, would be imputed to her husband. ... In order for a joint enterprise to arise two fundamentals and primary requisites must concurrently exist, to-wit: A community of interest in the object and purpose of the undertaking in which the automobile is being driven, and an equal right to direct and govern the movements and conduct of each other in respect thereto. If either or both of these elements is absent, there is no joint enterprise.”
But Instruction No. 12, with its binding aspect, and absent a definition of joint adventure, is prejudicial and could be reached by a general objection. It was objected to specifically “for the reason that it is not the law, and there is no evidence in the record to base [it] on, [and (2)] the undisputed evidence shows that Mrs. Rogers had no right whatever to direct and govern the operation of the car.”
With the latter conclusion we are in accord.
A case where the jury was entitled to say whether husband and wife were exercising joint control of an automobile is Johnson v. Newman, 168 Ark. 836, 271 S. W. 705. There the wife was driving, but her husband was seated next to her and was actively giving directions. In holding that negligence of the husband was a factual matter to be determined under the law of agency, Chief Justice McCulloch pointed out that the so-called “family purpose” doctrine as a basis of tort actions involving-automobile collisions had not been accepted in this state. See General Exchange Insurance Corporation v. Arnold, 206 Ark. 224, 174 S. W. 2d 543.
An opinion written by Mr. Justice Burr W. JONES for the Supreme Court of Wisconsin is impressively pointed: “In one sense,” said the Judge, “husbands and wives in their journey through life are always engaged in joint enterprises, sometimes successful, sometimes disastrous. But the mere fact that they travel in the same car, whether for pleasure or to change their abode, does not constitute a joint enterprise, within the meaning of the rule under discussion. Doubtless there may be such special facts showing agency or such joint financial interest in the undertaking as to make the negligence of the husband imputable to the wife and to defeat a recovery on her part. But no such facts are found in this case, and there is certainly no presumption- that any such relation existed. It was merely the ordinary social and domestic relationship involved when husband and wife are traveling together. There are numerous cases which hold that when a wife is traveling with her husband when they are not engaged in any joint enterprise, and when she has no direction or control over his movements she is not chargeable with his negligent acts. In other words, from the mere marital relationship the contributory negligence of the husband is not to be imputed to the wife.” Brubaker v. Iowa County, 183 N. W. 690, 174 Wis. 574, 18 A. L. R. 303.
In Hiller v. Shaw, 187 N. E. 130, 45 Ohio App. 303, the court’s opinion by Mr. Justice Sherick held that a wife, who at the time of collision was driving her bus- band’s automobile, with lier husband beside primary facts were insufficient to take the case to the jury in a proceeding against the husband, the issue being joint enterprise or imputed negligence.
A case from a nearer jurisdiction, Silsby v. Hinchey, (St. Louis Court of Appeals), 107 S. W. 2d 812, held that as a general proposition a wife is a guest in an automobile driven by her husband; and his negligence is not imputable, since the wife lacks the right to control her husband’s actions. This is true because the husband, “ being in no sense of the law her servant or agent, [the wife] is merely to be regarded as her husband’s guest when riding with him in an automobile which he is driving. ’ ’
In the application of Silby v. Hinchey to the case at bar it should be emphasized that under our decisions agency is not to be presumed from the relationship of husband and wife.
Corn v. Kansas City, C. C. & St. J. Ry. Co., Mo. App., 228 S. W. 78, held that where the plaintiff and- her husband went in an automobile to a depot to get their daughter, they were not engaged in a joint enterprise, and the husband’s negligence in driving the car was not imputable to the plaintiff so as to prevent recovery for the negligence of the operators of an interurban car. The action involved a street intersection collision. •
In the Wisconsin case to which attention has been called (Brubaker v. Iowa County), husband and wife were moving to another city where the husband intended to teach and the wife was to attend college, her purpose being to thereafter obtain a position. It was held as a matter of law that under the facts the wife had no control over the automobile and therefore was not responsible for its direction.
Our Stockton v. considerably broadened the generally-accepted definition of joint adventure, or joint enterprise.
A Louisiana v. Eddy, 130 So. 247, 15 La. App. 45, is to the effect that when two persons mu- agree on a trip, but the one owning the automobile had the sole right and control in driving, the trip was not a joint adventure. The same court (Rhodes v. Jordan, 157 So. 811) said that in order to constitute a joint adventure between the driver and occupant of an automobile, each must have equal right to control the operation of the ear.
Definitions from many courts are to be found in Words and Phrases, v. 23, Joint Adventure. An Iowa case to which attention is v. Briggs, 225 Ia. 1187, 282 N. W. that joint enterprise, or common enterprise, is not to be determined by the fact that the parties are going to the same place on the same mission; rather, the test is whether the guest in some manner had the right of control over the means of locomotion.
A clear expression is found in Bloom v. Leech, 166 N. E. 137, 120 Ohio St. 239. Mr. Justice Robert II. Day, in writing the court’s opinion, quoted the rule adopted by the Supreme Court of Connecticut in Coleman v. Bent, 100 Conn. 527, 124 A. 224: “A joint adventure in the use of an automobile implies a common possession and right of control of {he vehicle and a responsibility for its negligent operation equally common to all of its occupants; and therefore the rule or doctrine of joint adventure should be restricted to cases in which these essentials are clearly apparent from the agreement of the parties, or arise as a logical inference or legal conclusion from the facts found by the triers. ’ ’
The language of Instruction No. 12 permitted the jury to determine whether the trip from Lake Hamilton to Arkadelphia was for the “joint interest” of Rogers and his wife, and to decide, from the meager testimony regarding control, that the right to direct was mutual.
Our conclusion is that in the absence of a clear definition of joint adventure and joint responsibility of control, the instruction was inherently erroneous. Johnson v. Newman illustrates the proposition that some affirmative conduct must be shown other than the naked fact that husband and wife are driving in the same car. A holding that the jury may, in any case where husband and wife have been driving in circumstances agreeable to each, conclude for the purpose of defeating or sustaining damages that the trip is a joint adventure and that the wife owes a duty to the traveling public to actually or constructively direct the a determination would cause front-seat occupants to burgeon with the satisfaction of legal responsibility. What effect it would have on back-seat drivers is more highly speculative.
We think the ease should have gone to the jury without the binding effect of Instruction No. 12. On retrial the applicable law should be presented to the jury as concisely as the circumstances permit.
The judgment is reversed and the cause is remanded For another trial. | [
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Griffin Smith, Chief Justice.
The appellant as defendant was convicted October 23, 1951, on an indictment charging that he possessed intoxicating liquors upon which the domestic excise tax had not been paid, Ark. Stat’s, § 48-934; Act 306 of 1947. Collaterally, see § 48-935. The 1941 statute fixed the penalty at not less than $50 nor more than $500, or imprisonment not exceeding six months, “or both so fined and imprisoned in the discretion of the court or jury. ’ ’ The judgment, responsive to the jury’s verdict, was that a fine of $500 should be paid and that the defendant should serve sixty days in jail. The crime is a misdemeanor.
In asking for arrest of judgment it was argued (1) that the court overlooked the defendant’s demurrer to the indictment; (2) a directed verdict should have been given for want of evidence showing that Roberts was in possession of liquor found by officers; (3) the state’s evidence tending to show that the confiscated intoxicants were brought from Louisiana failed to connect the defendant with their purchase, transportation, or ownership; (4) the Arkansas excise tax is, in effect, an impost or duty affecting commerce among the states and is in conflict with Art. 1, § 8(3) of the U. S. constitution; (5) there was a denial of due process of law as defined by the Fourteenth amendment, and (6) the trial court was without jurisdiction. This petition was overruled, as was the defendant’s motion for a new trial, containing 19 assignments.
An inference to be drawn from Assignment No. 5 is that Roberts was under indictment on another charge, an objection being that the defendant’s counsel had been informed that Case No. 1988 would be tried first, instead of No. 1989.
The testimony of B. A. Courson, Ashley county sheriff, is in many respects corroborated by others who with a search warrant went to Roberts’ suburban home to ascertain whether information received by the grand jury regarding Roberts’ reported activities was true. No liquor was found in the house, but considerable was discovered back of it. A pasture or uncultivated area to the rear of the residence was separated from the back yard by net wire three or four feet high. The officers, in making their search, stepped over this fence. In the pasture there were a few pines or brush. A pint of untaxed liquor was found concealed in this pasture. Although different persons varied in estimates of the distance the liquor was from Roberts ’ house, the Sheriff and at least one other witness testified that it was approximately fourteen steps, and “to the right rear of the house.”
In a field west of Roberts’ residence, and approximately 350 feet away, officers found a sizable cache of intoxicants, including 13 pints of apricot liquor [or brandy], four pints of a brand known as Paul Jones, one pint of Sunnybrook, twelve pints of gin, half a gallon of "moonshine,” four empty gallon jars, and 214 empty bottles. The Roberts house faces east, and the discoveries were to the west, or back of it.
Another witness testified that the contraband was found in different piles [concealed] in small brush— three or four pints in a clump. The pasture in which the single pint of liquor was found was separated by a fence from the field where the larger quantities were discovered. Some of the bottles were very near this second fence. There were houses within a block of Roberts’ home. The officers did not observe any wellTdefined paths leading into or from the field or pasture, although trail-ways were to be observed from one deposit of liquor to another. The realty was owned by the defendant’s father, who emphatically disclaimed knowledge of the transactions. He also denied that his son had control of the pasture or field; and he mentioned a number of people who were known to utilize the premises at their convenience. The field, as distinguished from the pasture, was par tially cultivated. The father lived about a hundred yards south of the home.
Edward Lohmann, an investigator for the Alcohol Control Division of the State Department of Revenues, testified that he made three trips to Roberts ’ home before finding him on the premises. Lohmann informed Roberts that he wanted to talk with him and the two walked “some distance into the field.” Lohmann told Roberts he wanted some whiskey and in turn was asked who he was, what he was doing, and whether he could be identified through mutual acquaintances. This conversation continued for nearly fifteen minutes and Lohmann repeated that he wanted some In the course of this conversation said, “Are you sure you have any?” and Roberts replied, “Yes, I have got it all right, but I am afraid to sell it to you because I don’t know you too well.’’ Later Lohmann said, “Well, if I am going to buy any I want good stuff,” and Roberts replied, “It is good best you can get.” The conversations occurred ‘£ about a week or so ’ ’ before the warrant of arrest was issued on May 25th.
of the factors may contribute to a jury’s determination in reaching a verdict of guilty where none of several, standing alone, would be sufficient. It is the cumulative effect of circumstance added to events having probative value as evidence that may convince the fact-finders in a criminal case that the truth has been ascertained beyond a reasonable doubt. Here the relationship of father and son is highly persuasive of the probability that the defendant would have assumed the right to use the unoccupied lands. This assumption would ordinarily attend as a matter of course, even though the father had no idea of the particular use to which the property was being put and perhaps would have prohibited such use had the purpose been known.
The sheriff testified that Roberts’ reputation was that of a bootlegger. It is objected that the line of inquiry was not sufficiently specific, that the term “boot legger” was misapplied, and that tlie minds of jurors were improperly swayed by ilie factual conclusion that came from the sheriff. Our holdings do not support these contentions. Burrell v. State, 203 Ark. 1124, 160 S. W. 2d 218; Freyaldenhoven v. State, 217 Ark. 484, 231 S. W. 2d 121; Eoff v. State, 218 Ark. 109, 234 S. W. 2d 521.
It is highly improbable that the lawmaking body, in using the word “possession,” had in mind the restricted meaning intended when possession in fact is the subject of legislation. Possession in law may be constructive. “All I possess, indoors and outdoors,” has been held sufficient in a will to pass real property. 28 R. C. L., 237.
of the Excise Tax cases holding that one dealing in or with liquor is a mere licensee, and that his rights do not exceed the bounds legislatively set, are too numerous to require citation. The 21st amendment to the Federal constitution recognizes this right of a state, and U. S. Supreme Court decisions have not infringed. Ziffron v. Reeves, 308 U. S. 132, 60 S. Ct. 163, 84 L. Ed. 128. Validity of the excise '¿ax law was upheld by this court in McHenry v. State—an Ashley county case, 219 Ark. 401, 242 S. W. 2d 707. There was reference to the emergency clause of the enactment in considering probable intention of the General Assembly.
But a more complete answer to appellant’s contentions in the case at bar is that he disclaimed ownership of the liquor and his plea of not guilty and in counsel’s that it was on the premises adjoining his home. If it be argued that the jury’s verdict had the effect, as a matter of law, of imputing possession to the defendant, there is no evidence showing origin of the commodity other than testimony that containers bore Louisiana stamps. Some liquor, however, was identified as “bootleg.” Certainly the Federal question sought to be raised could not apply to this whisky, and that portion alone was sufficient to convict when evidence of its possession was supplied. In instructing as to the quantum of evidence necessary to support a verdict the court distinguished between direct and circumstantial evidence, saying that when circumstances were relied upon . . they must be so connected and cogent as to show guilt beyond a moral certainty and beyond a reasonable doubt, and to the exclusion of every other hypothesis.”
A detailed discussion of all objections raised would unnecessarily lengthen this opinion. All instructions, including those given, those refused, and those modified over the defendant’s objections and given as modified, have been examined. Our conclusion is that there were no prejudicial errors and that the judgment should be affirmed. It is so ordered. | [
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Griffin Smith, Chief Justice.
H. E. Powell and others sued Beasor-Hill Corporation at Dermott and a circuit court jury found against them Sept. 11, 1951. The matter before us is the corporation’s petition for prohibition to restrain the trial court from entering an order granting the plaintiffs a new trial. Judge Golden very courteously withheld the controlling official act until objecting interests could apply for the writ.
The court’s term ended Sept. days after plaintiffs’ motion for a new trial was presented; nor was it in session at Dermott between Sept. 15th and 28th, the motion having been heard and argument presented elsewhere by agreement. The issue before us is whether, by necessary implication, time for presenting and passing on a motion for a new trial has been restricted to 30 days by Act 167 of 1939; or, if not, have onr decisions left this essential undetermined?
When the verdict was returned counsel for plaintiffs made an oral motion for a new trial, to which the court assented by setting Sept. 28th for presentation.
The controlling legislation is § 27-1904, Ark. Stat’s. See Chicago, Rock Island & Pacific Railway Co. v. McCoy, Adm’x, 203 Ark. 596, 157 S. W. 2d 761. The 1939 Act provides that application for a new trial shall be made within fifteen days after the verdict or decision is rendered, unless excused by unavoidable casualty; but if the fifteen day period shall expire after adjournment or after expiration of the term, such motion may be presented ... at any time within thirty days from the verdict or decision, “and such judge shall hear said motion and shall indorse his ruling thereon, either granting or overruling the same.” In case the motion is overruled an appeal shall be allowed, and the indorsement shall specify a reasonable time for filing a bill of exceptions.
Quite clearly the statute requires that the motion be presented to the judge within thirty days from the verdict or decision, and this is true whether the court term has or has not expired. In the McCoy case there is a discussion of Chief Justice McCulloch’s opinion in Spivey v. Spivey, 149 Ark. 102, 231 S. W. 559, and Judge Butler’s opinion in Gazzola v. New, 191 Ark. 724, 87 S. W. 2d 68. Judge Frank G. Smith, who wrote the McCoy opinion, called attention to Judge Butler’s statement that in the Spivey case it was inadvertently said that the law required judicial action on the motion within thirty days. It was held that these words were dictum; or, as the author of the Gazzola opinion expressed it, “a slip of the pen.”
Judge Butler said that cases might well be supposed where it would not be practicable for the judge to pass on the motion within thirty days, “and, as noted, the statute does not so provide.” He then went on to say that under justifying circumstances the motion might be presented on the last day allowed, and the error assigned could be such as would require testimony in order that the judge be properly advised “before filing thereon.” This, said Judge Butler, appears a sufficient reason for the silence of the statute as to when the motion must be acted upon by the court.
The Gazzola opinion was written four years before the Act of 1939 was passed; but the current measure, and § 1314 of Crawford & Moses’ Digest then construed, use similar language limiting the time for presentation of the motion to thirty days. Terms of the Prairie Circuit Court (Northern District), where Gazzola’s case was tried, begin on the third Monday in March and September, so the entire transaction occurred during the March term, and what Judge Butler said did not include any expression as to what the situation would have been had the motion been presented at a term subsequent to trial.
In Mays v. C. M. Johnston & Sons Sand & Gravel Co., Inc., 203 Ark. 779, 158 S. W. 2d 910, a motion for a new trial was overruled more than thirty days after judgment. It was held that the trial court was not required to act within that period, “as the record shows that the motion was filed within the time, and in the manner provided by law, and was overruled during term time.”
Judge Wood’s opinion in Town of Corning v. Thompson, 113 Ark. 237, 168 S. W. 128, was commented on in Sims v. State, 203 Ark. 976, 159 S. W. 2d 753, and in the fourth marginal note cases dealing with motions for a new trial are cited.
The late Judge McHaney, in Metropolitan Life Insurance Co. v. Thompson, 203 Ark. 1103, 160 S. W. 2d 852, cited Marshall Bank v. Turney, 105 Ark. 116, 150 S. W. 693, where Chief Justice McCulloch said: “The record shows that the motion for a new trial was filed by express permission of the court; but, even if this were not so, the presumption would be indulged, in the absence of a showing to the contrary, that the court granted special permission for the motion for new trial to be filed out of time.” But, in the Thompson case, Judge Me- Haney emphasizes the fact that “all of the transactions” occurred during the same term of court. Again discussing the McCoy case, Judge McHaney said (Alexander v. Fletcher, 206 Ark. 906, 175 S. W. 2d 196) that all of the pertinent transactions relating to the motion for a new trial “[Were] done during the same term of court, the September term, and the cases cited are not in point.” This significant statement was then added: “The motion for a new trial, having been filed in term time and within the time fixed by the court, it was within the court’s power to pass upon the motion at any time before the lapse of the term.” The Thompson case was cited as authority.
In the case at bar four months, lacking four days, elapsed between presentation of the motion and the court’s letter expressing an intent to grant a new trial; and, from the date of verdict, more than two-tliirds of the time allowed for civil appeals had expired.
In all of the cases where we have held there was discretion to extend the time of determination, as distinguished from the period of presentation, the court acted within the judgment term. The pertinent question is, Did the Act of 1939 by necessary implication invest the trial court with power to indefinitely delay a decision beyond the thirty-day period?; or, if the Act be indefinite, have our opinions committed the court to such a rule? There is no escape from Judge Butler’s language overruling, in effect, what was said in the Spivey case.
When we consider the extreme hardships pointed to by Judge first relating to inability of the losing party to present his motion until the 30-day period liad virtually expired, and the second being the necessity for taking testimony for clarification result appears to be a finding by this court that the time mentioned is not a period beyond which the trial court would lose jurisdiction. Upon the other hand, however, we do not believe the lawmaking body intended to permit delays not accounted for upon a basis of absolute necessity of the kind mentioned in the opinion. It is understandable that the trial judge should construe the Gazzola case as authority for the course he pursued; but the better rule would be not to sanction the unusual latitude shown in the case at bar. Trial courts should be guided by necessities comparable to those dealt with in Judge Butler’s opinion.
Writ granted.
Justice Holt concurs in part and dissents in part.
Justices McF addin and GeoRge Bose Smith dissent. | [
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CURIAM.
Tbe appellees have filed a motion to dismiss this appeal under Rule 9, alleging tbat the appellants have failed to abstract the record proper and the testimony. In their printed abstract and brief the appellants take the position that the errors of which they complain appear on the face of the record; they say that hence no bill of exceptions, or abstract thereof, is needed.
It appears that the case involves the estate of E. E. Mitchell, whose will was construed in Mitchell v. Mitchell, 208 Ark. 478, 187 S. W. 2d 163. By this will the testator left a mercantile business to the appellants, "William Mitchell and William Mitchell, Jr., and certain real property to William Mitchell and his bodily heirs. The residue of the estate was to be held in trust for ten years and then be distributed among specified heirs of the decedent.
In 1946 the trustees filed in the probate court an account current. The appellants filed a number of exceptions to this account, but' only five exceptions are involved in this appeal. The appellants complain that they were charged with part of the federal estate tax, part of the Arkansas estate tax, part of the federal income tax, and with all or part of certain auditor’s and attorney’s fees. Their contention is that all these items should have been paid by the trustees and have been charged to the trust estate instead of to the appellants personally.
In view of the inadequate abstract of the record and the complete disregard of the bill of exceptions we are unable to say that any error has been shown. The pertinent parts of the transcript that have been fully abstracted are the testator’s will and the court order overruling the appellants’ exceptions to the account. The trustees’ account, which presumably lists the assets of the trust and the reasons for the charges now questioned, has not been abstracted. The proof may have shown that the property specifically left to the appellants composed such a great part of the estate that the remainder was insufficient to pay the three tax items in question. If that condition existed the charges against the appellants were proper. The proof may have shown a similar situation as to the fees in controversy, or it may have shown that the appellants employed the auditor and the attorneys and agreed to pay their fees. In either case the judgment appealed from would be correct. Since the meager abstract sheds no light on any of these matters we must presume that the judgment is supported by those parts of the record and of the testimony that have not been brought to our attention.
Appeal dismissed. | [
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Ward, J.
The principal issues involved in this litigation are the validity of a tax deed executed by the State, and an attempt to cancel the' deed on the ground that the tax sale supporting the State’s title was void. Involved in this suit are lots 5, 6, 7 and 8 in block 1 of Branstetter’s Addition to DeWitt.
On November 1, 1941, Robert Eason, appellee, obtained a deed from the State conveying to him said property. The deed, which was introduced in evidence, shows that the land was deeded to the State as a result of a forfeiture for the nonpayment of the 1933 taxes. Within two or three days after receiving the State deed appel-lee entered into possession of the land, placed a building on it, and he and his family have lived on it and paid the taxes ever since. It appears from the testimony that when appellee moved on the property it was unoccupied; that it was more or less grown up in briers and bushes and littered with old automobile wrecks; that it had an old wire fence on three sides; and that he did not have to remove any fence or gate when he moved on. It appears that the property had very little value in 1941. It was situated at the extreme edge of .the corporate limits, was more or less swamp land, had a creek running through it, and there were no streets. Since moving on the land appellee has added improvements valued in excess of $3,000.
Appellant in her effort to defeat appellee’s State deed relies upon the matters set forth below.
Some time prior to March 24, 1941, the State instituted suit,' designated as No. 3806, to confirm title in many parcels of land in Arkansas County among which were the lots here involved. On the day above mentioned appellant filed in court her exceptions to the confirmation of the involved lots, and on the same day the court [evidently] announced its decree confirming all the lands except the said lots. We used the above word in brackets because no decree was filed as of that day, but the court, on February 9, 1942, entered an order nunc pro tunc as of March 24, 1941. Among other provisions this order contained this' paragraph with reference to the lots here involved: “It appearing that interventions have been filed and that upon the hearing of the same that certain lands were erroneously forfeited, the within cause is hereby dismissed as to said lands, to-wit: [here the lots involved are described].” It should be noted that cause No. 3806 was also designated “1936 suit.”
On December 26, 1941, appellant, designated herself as ‘ ‘ Exceptor, ’ ’ filed a cross-complaint in which she asserted title to the lots, re-asserted the same grounds for excepting, and prayed for cancellation of the State deed and for costs and damages against appellee, who was for the first time joined as cross-defendant. Appellant’s exceptions set forth, as grounds for voiding the tax forfeiture and sale, that: (1) The lands were sold on a day not authorized by law; (2) The lands were not adver tised for the time and in the manner described by law; (3) The lands were not assessed, and the list was not verified, all as required by law; (4) The list was not recorded before the day of sale, the school tax for said year was not lawfully levied, and the assessor failed to authenticate the assessment record and list and failed to file the same as required by law; (5) The tax book for the year 1936 does not contain a warrant authorizing a collection of taxes; and (6) The clerk failed to record the delinquent list for the 1936 property and failed to properly certify the same.
Following the above and on January 24, 1942, appel-lee filed a demurrer to the cross-complaint on the ground that a cause of action had not been stated and that the court had no jurisdiction.
On February 9, 1942, appellant filed an amendment to her cross-complaint in which she deraigns her title through her mother and further alleged that appellee received his deed while this suit was pending and that he went into possession; and that “said deed and conveyance being based solely upon the Collector’s sale for nonpayment of the alleged 1936 taxes” was void. It is noticeable that the 1936 tax forfeiture is mentioned eight or ten times in appellant’s amended pleading. The prayer asked, that her land be not confirmed in the State, that the deed based on the “aforesaid illegal and void tax sale be cancelled,” that “the aforesaid pretended tax sale held on November 1, 1937, be held void,” and that she be allowed to redeem and have her title quieted. In answer to the above pleading appellee, on March 19,1941, entered a general denial, alleged he had been in possession under said deed since October, 1941, and exhibited his deed from the State which was referred to above. At the same time appellee filed a demurrer on the ground that since he was in possession the chancery court had no jurisdiction.
With nothing in the record to explain the delay, no steps were taken in the matter for approximately nine years when appellee, on May 13, 1950, filed an answer to appellant’s cross-complaint and amendment thereto. Appellee also filed two amended answers in June of the same year and on March. 26, 1951, he filed still another. In all these latter pleadings appellee insisted on his demurrer, relied on his State deed, claimed adverse possession, pleaded the seven-year statute, and also the two-year statute set forth in Ark. Stats., § 34-1419. Appellant filed a reply on March 26, 1951, denying all allegations made by appellee and specifically pleaded that the original confirmation decree mentioned before was res judicata of appellee’s claim herein.
It should also be noted here that all the original papers and exhibits in the original confirmation suit were lost, as was found by an order of the lower court made September 24, 1951. In this order the court found that the original suit was for the purpose of confirming the tax sale for the taxes for the years 1933, 1934, 1935, and 1936 on the lands in question and other lands.
Several questions were raised by the pleadings on which testimony was introduced and excellent briefs presented as appellee’s right to improvements and the amount thereof, the sufficiency of appellant’s chain of title, the right of appellee to introduce evidence to show that the lands in question had sold to an improvement district prior to 1940, and the merits of ap-pellee’s demurrer to the court’s in view of the conclusion we have reached i't becomes unnecessary to discuss them.
Appellant first insists that the original confirmation decree is res judicata of appellee’s claim. Her position is that the effect of the confirmation decree [in failing to confirm as to the lands in question] was to declare void the tax forfeiture and/or sale on which the State deed rested, and that, therefore, the State deed to appel-lee must fail. There are several reasons why we cannot agree with appellant on this point. The State deed shows on its face that it is based on a 1933 forfeiture, but there is nothing in the record from which the lower court or this court can be sure that this was the forfeiture which the original decree found erroneous and upon which it refused to allow confirmation. Apparently, judging from appellant’s objections, the court found that the 1936 [not the 1933.] forfeiture and/or sale was void. Appellant herself evidently did not believe what she here contends for, because her later pleadings recognized the issue to be a live one and specifically prayed that title be not confirmed in the State.
In our opinion appellant cannot prevail for the reason that she has not shown the invalidity of the tax forfeiture and/or tax sale by reason of which the State derived its title.
First, the deed shows, as mentioned before, that it is based on a tax sale for the taxes of 1933, yet nowhere is there a definite showing that the sale for 1933 was irregular. All the proof apparently was directed at the 2937 sale for the 1936 taxes. It is true that the belated order of the lower court found that the original pleadings [which were lost] related to lands sold for the taxes of 1933, 1934, 1935 and 1936, but this fact did not obviate the necessity of introducing proof that the 1933 sale was void. No such proof appears in the record. It may be urged that the pleadings show that there was only one sale [the one in 1937] for the taxes for all the years including 1933. This could be the actual situation, but it would be an unusual and exceptional situation and appellant bore the burden of proving it. Again no such evidence appears in the record. We have carefully read all the pleadings filed by appellant and at no place is there any allegation that the 1933 forfeiture or the sale based thereon was void. The only year mentioned in the original exceptions is the year 1936. To the same effect is the cross-complaint filed December 26, 1941, which alleges . . that the tax sale sought to be confirmed in this action is void and of no effect for the reasons stated and set forth in the original exceptions. . .” The only other pleading [except a reply which was a general denial] filed by appellant was her amendment filed February 9, 1942, which contained the allegation that the state’s title was “based solely upon the Collector’s sale for the non-payment of the alleged 1936 taxes. . .” Nowhere in this pleading is any mention made of the year 1933, but 1936 is mentioned eight or ten times.
Tlie only witness called by appellant to testify regarding- tax sales was W. B. Norsworthy, the County Clerk. It may be conceded that his testimony is sufficient to show the tax sale held in 1937 was void for irregularities. By this witness it was shown that the lots in question were assessed in .appellant’s name for the years 1933, 1934, 1935 and 1936, and from this testimony it might also be inferred that the sale in 1937 was for the taxes for all those years. No records were introduced, but the witness was allowed to read certain portions. The Tax Collector’s affidavit showed that he had been unable to collect the taxes [shown on the list attached to the affidavit] for the year 1936 and previous years as charged on the tax book for the year 1936.
As shown above the lots in question were assessed for taxes for the year 1933. If the officers performed the duties imposed by law the' lands were sold the following- year for the delinquent taxes. In the absence of any showing- to the contrary we will presume that the officers so charged did not neglect their duties, and that there wTas a sale for the 1933 taxes. That presumption is strongly corroborated by the undisputed fact that the deed from the state to appellee showed on its face to be based on the 1933 forfeiture.
From the above it follows that the decree of the lower court must be affirmed. | [
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RobiksoN, J.
Appellant, Edna Bergdorf, sued ap-pellee, Ida Chandler, in Circuit Court for damages alleged to have been sustained by appellant as a result of an assault and battery committed by appellee. Appellant asked for compensatory damages in the sum of $2,500 and exemplary damages in a like amount. As an element of damage appellant proved that, as a result of attack, her spectacles were broken, the damage amounting to $17.50 for repairs thereto, $2.00 to the optometrist, and $10.00 expended for the trip to the optometrist, making a total of $29.50, which was the amount of the verdict returned by the jury. Nothing was allowed for pain and suffering, and a verdict was returned for the defendant on the issue of exemplary damages.
Appellant testified that without any warning ap-pellee struck her in the face with a large pocketbook. Appellee denied she struck appellant with a pocketbook, but frankly admitted slapping her. Appellee testified as follows:
“Q. Did you hit her with the pocketbook?
“A, No, my hand. I couldn’t hit hard enough with that.
“Q. Did you ever hit her with it?
“A. No.
“Q. Was it loaded just like it is now?
“A. Yes.
“Q. Any brick-bats in it?
“A. No, I don’t carry no brick-bats. I slapped her the first time, and her glasses come down, and I jerked them off and broke them. I broke them glasses.
“Q. You did that?
“A. Yes, sir. And I slapped her think three times, I slapped her. It was coming to her.”
As an additional reason for her action, Mrs. Chandler testified that in the month of June, before the attack occurred in September, she had some litigation against her step-son and Mrs. Bergdorf had “butted into” the case. ' She testified:
“Q. And you decided to whip her? That’s the reason?
“A. I decided she butted into my case and I slapped her jaws, and that’s all I done, I slapped her good!”
As evidence of provocation in mitigation of damages, Mrs. Chandler, appellee, over the exceptions and objections of Mrs. Bergdorf, appellant, proved by the witness Britten Baker that one, Albert Hays, brother-in-law of appellant, had informed Baker that Mrs. Chandler was throwing tin cans on Baker’s place, (which she had permission to do) and that Baker had told Mrs. Chandler of receiving this information.
In urging the admissibility of this testimony in the trial court, counsel for appellee stated the evidence was material because it tended to show provocation; otherwise, the evidence was admitted .on the theory that it went to the mitigation of damages. Thus, the jury was permitted to consider the fact that Mrs. Bergdorf’s brother-in-law had given some information to Britten Baker about Mrs. Chandler placing tin cans on Baker’s property as a justification for the admitted attack Mrs. Chandler made on Mrs. Bergdorf. There was no showing that Mrs. Bergdorf knew anything about the giving of such information, which had been conveyed to Mrs. Chandler about one week before the attack. What Mrs. Bergdorf’s brother-in-law said about the tin cans would not be a provocation recognized in law as going to mitigation of damages suffered by reason of an assault and battery committed upon Mrs. Bergdorf.
In Le Laurin v. Murray, 75 Ark. 232, 87 S. W. 131, this court said: “It is a well settled rule of law that mere words never justify an assault, though, when they are such as to naturally arouse the resentment of those to whom they are addressed, they may go in mitigation of damages resulting from an assault provoked by them; but to do this they must have been uttered at the time of the assault, or so recently before that the provocation and the assault may be considered as parts of the same transaction. If sufficient time has intervened for reflection, and for reason to regain control, words, however provocative, do not in law mitigate such damages, for only provocation that is so recent as not to allow cooling time is competent to mitigate damages, and even then such mitigation extends only to exemplary damages. Damages for pecuniary losses actually sustained from a wrongful assault can never be mitigated below adequate compensation.” In Collier v. Thompson, 180 Ark. 695, 22 S. W. 2d 562, the foregoing language from Le Laurin v. Murray is quoted with approval.
Le Laurin v. Murray is also cited in Cooper v. Denby, 122 Ark. 266, 183 S. W. 185, where it is said: “Where proof of provocation is admissible in mitigation, generally the provocation must have been immediate, or so recent as to constitute a part of the res gestae.”
‘ ‘ To entitle the defendant to give evidence of provocation in mitigation of damages, the provocation must be so recent as to induce a presumption that the violence done was committed under the immediate influence of the feelings and passions excited by the provocation, and before his blood has time to cool.” 2 R. C. L. 588. The rule that acts or words of provocation may be shown in mitigation of exemplary or punitive damages only when they are of so recent occurrence and are so connected with the assault as to warrant an inference that it was committed under the influence of the passion produced by them, has been recognized in many states. See, Ann. 123 A. L. R. 1126.
Exemplary damages are not recoverable as a matter of right, even though the facts in the case are such as to make their allowance proper. Their allowance rests in the discretion of the jury. 15 Am. Jur. 705.' However, in determining whether exemplary damages will be allowed, the jury should not consider incompetent evidence.
For the error in admitting the testimony as to what Hays, brother-in-law of Mrs. Bergdorf, said about the tin cans, the cause is reversed. | [
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George Rose Smith, J.
This is a suit brought by twenty landowners and the Town of Turrell, to enjoin the State Highway Commission from relocating a twelve-mile segment of TJ. S. Highway 61. At present this part of the highway extends northward from the City of Marion, passes through the unincorporated towns of Jericho and Clarkedale, and continues on to Turrell. The Commission has instituted condemnation proceedings to obtain a new right-of-way that will lie west of the existing highway and will by-pass Jericho, Clarkedale, and Tur-rell. The chancellor, after a hearing at which a number of witnesses testified, denied the temporary injunction sought by the plaintiffs. Three issues are presented by this appeal from the chancellor’s order.
I. It is contended that the Highway Commission cannot in any circumstances so reroute the highway as to by-pass Jericho, Clarkedale, and Turrell, since these three communities were shown on the map that the legislature adopted as the basic state highway system. Ark. Stats. 1947, § 76-501. We disagree. This section of the. statute authorizes the Commission “to make, from time to time, such necessary changes and additions to the roads designated as State Highways, as it may deem proper,” with a proviso that the Commission “shall not have authority to eliminate any part of the Highway System.” In construing a 1923 statute which was superseded by the present law, we held that the General Assembly had not prohibited changes in the system, however substantial, as long as a particular unit of the system was not eliminated as a whole. Bonds v. Wilson, 171 Ark. 328, 284 S. W. 24. In effect we said that a unit of the system consists of a fairly direct route that connects one terminus with another. Applying that reasoning to the case at bar, we are not willing to say that the section of U. S. Highway 61 now in question amounts to a unit in the system. One would hardly refer to Jericho and Clarkedale, two miles apart, as termini of a national highway that runs from New Orleans to the Canadian border. The Arkansas terminal points of this thoroughfare are its entrance into the State at the Tennessee border and its exit at the Missouri line as the road goes on its way to St. Louis. Under the ruling in the Bonds case the Commission’s action in moving a twelve-mile segment of tlie highway westward for about a mile does not have the effect of eliminating a unit in the highway system and is therefore permitted by the statute.
II. The second argument is that the condemnation is not for a public purpose, since the Commission seeks a right-of-way 250 feet in width and yet proposes to build in the immediate future a paved highway that will be only 24 feet wide. Most of the testimony heard by the chancellor was directed to this issue. For the landowners there was proof that even a four-lane highway may be built upon an easement not exceeding one hundred feet in breadth. But for the Commission there was convincing evidence that the course adopted will result both in public economy and in traffic safety.
The Commission’s testimony pretty well proves that on this section of Highway 61 there is already a need for four lanes of travel. The proof indicates that a four-lane thoroughfare is desirable when traffic exceeds 4,000 vehicles a day, and at present more than 5,000 cars and trucks travel daily on that part of Highway 61 that the Commission seeks to relocate. Even though the Commission’s existing commitment is to construct only a 24-foot two-lane highway, its plan for the future, when justified by available funds, is to build a second two-lane road, separated from the first by a parkway that will provide earth for the necessary fills and also promote the public safety by dividing the two arteries of traffic. By acquiring a sufficiently broad right-of-way in the first instance the Commission expects to avoid the expense that is incident to any attempt to enlarge a roadbed that has been hemmed in by the various commercial establishments that tend to spring up along the border of a public highway. It is evident that the present undertaking would not be necessary had the State taken a sufficiently wide easement when the road from Marion to Turrell was originally laid out. In these circumstances it is certainly permissible for the Commission to look ahead in its planning. “In determining whether the taking of property is necessary for public use not only the present demands of the public, but those which may be fairly anticipated in the future, may be considered.” Rindge Co. v. County of Los Angeles, 262 U. S. 700, 67 L. Ed. 1186, 43 Sup. Ct. 689.
We need not detail the evidence that shows a 250-foot easement to be necessary, for the appellants shouldered a heavy burden of proof in attempting to persuade the courts to override the Commission’s judgment. Although we have suggested that the legislative determination of the necessity for the taking is conclusive on the judiciary, Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260, the view now prevailing makes the legislative judgment subject to review in cases of fraud, bad faith, or gross abuse of discretion. State Highway Com’n v. Saline County, 205 Ark. 860, 171 S. W. 2d 60. There being testimony bj7' experienced engineers that a 250-foot right-of-way is needed in this instance, the chancellor was correct in holding, that the Commission’s decision was not arbitrary or capricious.
III. It is finally contended that the chancellor should have enjoined the Commission from proceeding further with an action it originally filed in the county court. The facts are that the Commission first petitioned the county court to provide a right-of-way, but that tribunal took no action on the petition within sixty days. Thereupon, as authorized by statute, the Commission filed condemnation proceedings in the circuit court. Ark. Stats., §§ 76-511 and 76-518; Ark. State Highway Com’n v. Pulaski County, 205 Ark. 395, 168 S. W. 2d 1098. We are not convinced that the continued pendency of the county court proceeding threatens in any way to visit a loss upon these appellants, but in any event the Commission’s election to proceed by eminent domain in the circuit court amounted to an abandonment of its earlier petition. There was no need for the chancellor to exercise his injunctive power to achieve a result that had already been attained by operation of law.
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Minor W. Millwee, Justice.
This is a suit by appel-lees, as the heirs of Raif Ford, deceased, against appellants, J. E. Cooper and wife, to quiet title to eighty acres of land in Union County, Arkansas.
At the time of his death intestate in 1928, Raif Ford was the owner and in possession of two hundred acres described as the NE Quarter, and the SE Quarter of the NAN Quarter of Section 36, Township 19 South, Range 14 ANest, in Union County. The eighty acres in controversy is the ANest Half of said NE Quarter. Raif Ford’s home was located in the northwest corner of the eighty-acre tract facing east on the El Dorado-Farmerville road which runs north and south through the tract.
Upon the death of Raif Ford in 1928, appellee Spence Ford, one of his six sons, moved in the Raif Ford home where he has since resided. Joe Ford, another son, moved in a house south of the Spence Ford home and on the same side of the road in 1928 where he resided with his family until his death in 1937, and his widow and children continued to live there until 1946. In 1929 ap-pellee Greeley Cook, grandson of Raif Ford, built a house on the east side of the road, south of the Spence Ford home, where he resided with his family until about 1946 when he rented the house to a tenant and moved to El Dorado. This house burned in 1950 while occupied by Cook’s tenant.
On March 7, 1935, O. B. Clark, as administrator of the Raif Ford estate, sold the eighty acres in controversy to pay debts of the estate. Rush Hooten purchased the land at the administrator’s sale and a deed was executed to him on April 18, 1935. The administrator’s report of said sale was approved by the probate court on April 23, 1936, and the deed placed of record May 27, 1936. Hooten and wife executed a’ quitclaim deed to the eighty-acre tract to appellant, J. E. Cooper, on November 19, 1946. Neither Hooten nor Cooper asserted any right of possession or claim of ownership of tlie lands until 1947. Spence Ford paid taxes on the entire two hundred acres from 1928 until 1947. When he went to pay taxes in 1947 he learned that appellant had already paid the 1946 taxes on the eighty acres in controversy and this was the first knowledge appellees had of the administration proceedings or any claim of title to the lands by Hooten or Cooper.
Although appellees pleaded ladies on the part of Hooten and the invalidity of the administrator’s sale of the lands to him, their proof was confined to their principal claim of title to the eighty-acre tract by adverse possession. The chancellor sustained the plea of adverse possession and this appeal is from the decree quieting appellees’ title to the tract and cancelling the administrator’s deed to Hooten and the latter’s quitclaim deed to appellant J. E. Cooper.
In urging a reversal, appellants apparently concede that appellees fully established their claim of adverse possession to the Eaif Ford house occupied by Spence Ford and several acres of yard, garden and pasture in the immediate vicinity. However, it is insisted that ap-pellees had no color of title to the lands after the administrator’s sale and deed to Hooten in 1935; that the evidence is insufficient to establish pedal possession by appellees for the statutory period of any of the balance of the eighty acres in controversy; and that title to these lands should have been quieted in appellants.
Appellants rely on the case of Sturgis v. Hughes, 206 Ark. 946, 178 S. W. 2d 236, which involved a claim of adverse possession by a grantor against a grantee and ljis successors in title. We held that the record title was in those claiming under the grantee and that since the grantor was without color of title, he acquired title to only that portion of the land which he actually occupied for more than seven years. We agree that this rule is applicable here. Title to the eighty acres in controversy became vested in appellees on the death of Raif Ford in 1928. However, the lands were an asset in the hands of the administrator for the payment of debts of the Raif Ford estate and title of the heirs was divested by the administrator’s sale and deed to Hooten in 1935. One cannot successfully claim possession under color of title where he has been deprived of the color of title relied upon by a judgment, decree or involuntary sale of the land under authority of law. 2 C. J. S., Adverse Possession, § 69; 1 Am. Jur., Adverse Possession, § 204.1. The validity of the administrator’s deed to Hooten has not been challenged here.
It follows that appellees’ continuous possession of the lands after the administrator’s sale was without color of title, which was in Hooten under his deed from the administrator. It is well settled by our decisions that while color of title is not necessary to give title by adverse possession, it is required to extend an actual pos-sexssion of a part of a tract of land constructively over the rest of it. Bradbury v. Dumond, 80 Ark. 82, 96 S. W. 390, 11 L. R. A., N. S. 772; Culver v. Gillian, 160 Ark. 397, 254 S. W. 681. Thus the adverse possession of appellees in the case at bar is limited to the land they actually occupied.
In Culver v. Gillian, supra, the court held that to constitute adverse possession in one having no color of title, there need not be a fence or building, yet there must be such visible and notorious acts of ownership exercised on the premises continuously for the time limited by law that the owner of the paper title would have knowledge of the fact, or that his knowledge may be presumed as a fact. The rule of actual possession is to be applied reasonably in view of the location and character of the land claimed and it is ordinarily sufficient if the acts of ownership are of such a nature as a claimant would exercise over his own property and would not exercise over an other’s, and that the acts amount to such dominion over the land as it is reasonably adapted to. What is adverse possession is one thing in a populous country or a city and another thing in a sparsely settled section of the country. 2 C. J., Adverse Possession, § 7 (b); 2 C. J. S., Adverse Possession, §§ 22 and 181 b.
The lands in question are located in a sparsely settled section of Union County. Although appellees are not well versed in land lines and descriptions, the effect of their testimony is that Spence Ford, Greeley Cook, «Joe Ford and his widow and children continuously resided on the eighty acres in controversy, cultivated parts of it, cut and sold timber from the balance and exercised complete dominion over the lands for more than seven years after the execution of the administrator’s deed to Hooten in 1935. Spence Ford testified that he cultivated lands south of his house in the northeast quarter of section 36 every year following the death of his father until a year before the trial when he developed heart trouble; that he had twelve or fourteen acres in corn and other crops near his house each year in addition to a fenced pasture of about four acres across the road from his house. Joe Ford lived on the same side of the road on the south forty and Greelej^ Cook constructed a house across the road from Joe Ford in 1929.
Greeley Cook testified that in 1929 he cleared and fenced eighteen acres which he cultivated each year until he left the place in 1946 and rented to another; that he made a living on the land and had thirty-six head of cattle when he left; and that he made crossties on the place.
In 1938 four of the Raif Ford heirs executed a mineral deed covering the lands in controversy. About 1940 the heirs filed suit against J. W. Reynolds for cutting timber on the tract. In 1945 they sold $3,000 worth of timber from this and adjoining lands of the estate. Cotton allotments were made by the federal government to Spence Ford, Joe Ford and Greeley Cook for several years after 1935, which apparently covered the entire two hundred acres. Appellees at all times since the death of Naif Ford have claimed title to the lands and their claim has been so recognized by others living in the vicinity. Their testimony as to occupancy and cultivation was corroborated by other witnesses in their behalf.
Appellants introduced only one witness. He had made an inspection of the property a few days before the trial and introduced a plat of the eighty acres showing the location of the road, the fenced pasture across the road from the house occupied by Spence Ford and a small acreage around the house which he stated was the only land in cultivation at that time. He stated that there were small pine bushes growing on the lands and that a strip of timber had been cut a few years previously on the west side of the eighty-acre tract. He also stated there w;as a field of about ten or twelve acres which appeared to have been in cultivation until three or four years previously on the eighty acres and that there was a fence on the line between the south forty and SE Quarter of the NW Quarter. The plat introduced by this witness tends to clarify the testimony of witnesses for appellees as to the location of the houses occupied by Joe Ford and Greeley Cook and to show that said houses were located on the south forty of the eighty acres in controversy. His testimony also corroborates to some extent appellees’ testimony as to the prior cultivation and tim-. ber cutting on the lands.
Appellants say the testimony of appellees is too indefinite to show actual possession of the entire eighty acres and complain that their repeated references to occupancy, cultivation and timber cutting as being “on the land” and “of the land” could have been made with reference to the other 120 acres owned by them and contiguous to the eighty acres in dispute. This is true in some instances while in others it is clear that such statements had reference to the lands in controversy only. We think the evidence, which for the most part is undisputed, is sufficient to support the finding of actual adverse possession of the eighty acres by appellees for more than seven years following execution of the administrator’s deed to Hooten in 1935. The facts here are unlike those in such cases as Brown v. Bocquin, 57 Ark. 97, 20 S. W. 813; Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566, 1011, 91 S. W. 20; and Culver v. Gillian, supra, where there were only fitful acts of ownership unaccompanied by actual occupancy of the lands in dispute. Here we have continuous residence upon parts of the land and such use and dominion over the balance as it was reasonably adapted to, and that a lawful owner might make, for more than seven successive years after the deed to Hooten.
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MiNOR W. Mill web, Justice.
By this appeal the appellant, John K. Docld, seeks to question the-action of the chancery court in vacating a default decree during the term in which it was rendered. A collateral issue is whether appellee, Harvey Bonds, is a missing person within the meaning of Act 71 of 1943 (Ark. Stats., §§ 58-We do not determine these issues for the reason that the appeal was prematurely taken and must be dismissed.
In his suit to quiet title, appellant obtained a default decree against appellee, Harvey Bonds, before a special chancellor on September 27, 1951, after the regular chancellor had previously sustained appellant’s motion to strike appellee’s answer and cross-complaint. On October 18, 1951, and during the term in which the default decree was rendered, Andrew Bonds, father of Harvey Bonds, having been appointed trustee of his son’s estate pursuant to Act 71, supra, filed a motion to set aside the default decree. This appeal is from the order of the regular chancellor sustaining the motion to vacate and setting the cause for trial upon its merits.
The order setting aside the default decree rendered during the same term is not final or appealable. Judge Humphreys clearly stated the applicable rule in Hawkeye Tire & Rubber Co. v. McFarlin, 146 Ark. 491, 225 S. W. 632, as follows: “A motion to set aside a default judgment at the judgment term is not an independent action, and, when set aside, does not determine the rights of the parties. It leaves the case in the condition it was before the default judgment was rendered, with an opportunity to try the case upon its merits. This rule would not obtain had the court refused to set the judgment aside because such an order would have precluded the rights of the judgment-debtor to try the case upon its merits. In that event the judgment would have been final, and the judgment-debtor could have appealed from it. Neither would the rule obtain, had the court adjourned be fore a motion was filed to set the default judgment aside, for, in that event, the setting aside of the judgment would have been a determination of the vested right of the judgment-creditor in the judgment, and, in that sense, final and appealable.”
The rule was reaffirmed in Democrat Ptg. & Litho. Co. v. Van Buren County, 184 Ark. 972, 43 S. W. 2d 1075, and Metz v. Melton Coal Co., 185 Ark. 486, 47 S. W. 2d 803. In the earlier case of McPherson v. Consolidated Casualty Co., 105 Ark. 324, 151 S. W. 283, Judge Frawk Smith stated the basic reason for the rule: “Cases cannot be tried by piecemeal, and one cannot delay the final adjudication of a cause by appealing from the separate orders of the court as the cause progresses. When a final order or judgment has been entered in the court below determining the relative rights and liabilities of the respective parties, an appeal may then be taken, but not before.”
While the parties themselves have not raised the question of the finality of the order appealed from, a more detailed statement of the facts necessary to a solution of the issues sought to be determined would only emphasize the point. If we should ignore the question in these circumstances, our decision might well' be treated as a precedent in opposition to the well-settled rule.
Since no final decree has been rendered in chancery court from which to appeal, the appeal is dismissed. | [
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Per Curiam.
We are asked to prohibit the Hemp-stead Circuit Court from proceeding in this cause because, as the petitioner asserts, that court is without jurisdiction.
A Healey & Roth ambulance was involved in a collision east of Hope on Highway 67, in consequence of which property damage was sustained and J. W. White, a pedestrian, was fatally injured. Petitioner is a corpo ration with its principal place of business in Little Rock. The ambulance was driven by Robert Gr. Priebe, whose sustained personal injuries..
On August 28th, 1951, Priebe filed suit in Pulaski Circuit Court against the administratrix of White’s estate. Summons issued at once and was received by a deputy sheriff for Hempstead county at 11:00 o’clock a. m., August 29th. It was served on the defendant the follow-' ing day.
The administratrix of White’s estate sued Healey & Roth in Hempstead county August 29th. Service was had upon the defendant in Pulaski county at 11:40 a. m., August 29th. It will thus be seen that the Healey & Roth suit, with Priebe as co-plaintiff, was filed a day earlier than the Hempstead county action, but, the suit of the administratrix was a day early in point of service. The question is, Which court acquired jurisdiction to the exclusion of the other?
The issue was not determined in Kornegay v. Auten, Judge, 203 Ark. 687, 158 S. W. 2d 473, or in Sims v. Toler, Judge, 214 Ark. 732, 217 S. W. 2d 928. In each of these cases it was stated that the court first acquiring jurisdiction would retain it. Jurisdiction includes (1) subject-matter, and (2) service upon the defendant entity, unless the proceeding is in rem, or is one where personal judgment is not sought.
In a separate concurring opinion by one of the Judges who participated in the Kornegay decision, it was said that the court first acquiring jurisdiction of the cause of action had the exclusive power to proceed to judgment. Where a statute of limitation is involved its operation is tolled when suit is filed and when summons is issued and placed in the hands of an officer with instructions that it be served. Matthews v. Warfield, 201 Ark. 296, 144 S. W. 2d 22. But in such circumstances there is no race of diligence between persons contending for priority rights in different jurisdictions, and we are not persuaded that the Venue Act should be construed as the petitioner suggests.
In Wasson, Bank Commissioner, v. Dodge, Chancellor, 192 Ark. 728, 94 S. W. 2d 720, the jurisdiction of Pulaski Chancery Court was denied in favor of the Jefferson Chancery Court. A sentence in the opinion where the reason was discussed says that the Jefferson Chancery Court, “having rightfully acquired jurisdiction over the necessary parties and subject-matter in the foreclosure proceeding, no other court of equal dignity or one having concurrent jurisdiction has a right to interfere.” To the same effect is Jones v. Garratt, 199 Ark. 737, 135 S. W. 2d 859. In Railway Company v. State, 55 Ark. 200, 17 S. W. 806, jurisdiction was defined as “the right to adjudicate concerning the subject-matter in given cases.” Amplification was added in Rankin v. Schofield, 81 Ark. 440, 98 S. W. 674, when Judge Battle said in the court’s opinion on rehearing: “To constitute [jurisdiction] there are three • essentials: First, the court must have cognizance of the class of cases to which the one to be adjudicated belongs. Second, the proper parties must be present. And, third, the point decided must be, in substance and effect, within the issue.”
We agree with respondent in the statement that while venue may be in different counties, eventually jurisdiction must center in one, and it is completed when the issues have been sufficiently stated in appropriate pleadings in a court having jurisdiction of the subject-matter, and when the person or persons against whom judgment has been sought have been served with process or have entered an appearance.
Writ denied.
Mr. Justice Ed. F. MoFaddiN, Mr. Justice G-eoege Rose Smith, and Mr. Justice Sam did not participate in the consideration or determination of this petition. | [
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Ward, J.
On March 9,1949, at the noon hour, appellant went into appellee’s place of business at Hot Springs for the purpose of making a payment on her account, when she slipped, as alleged, on some substance on the floor, fell, and was injured. After the introduction of her testimony and that of her doctor, plaintiff rested her case and the trial judge instructed a verdict for the defendant, appellee here.
The question on this appeal is the propriety of the action of the trial judge, and this depends on whether plaintiff’s testimony made a prima facie case of negligence against appellee.
In order to answer the above question it is, of course, necessary to examine carefully appellant’s testimony, and for that reason and purpose we quote the material parts as set out below:
“I went in and I walked, I’ll say two-thirds of the way through the building, and the clerk came out of the office and asked me what I wanted, and I said, ‘I just want to go to the office and pay a bill.’ So he just walked right np to me, and he turned around to go back, and about that time I slipped down, yon see, so I sat there a minute . . . my foot just slipped forward and I kinda slipped hack ... I just sat back ... I sat there until I got to feeling a little better and he got me a chair then and brought it around and so I sat down in that a few minutes . . . And I could see got to feeling better and I could the floor, looked like they had took a big wad of cloth or something and there had been something took up off the floor or put on and I didn’t know which it was supposed to be, but they just come around, you know circular movements, thick streaks and thin streaks of it, and where I slipped through it—
“Q. Do I understand you to say that there was one spot that was in streaks ?
“A. Yes, sir.
“Q. Different than the balance of the floor?
“A. Well, I don’t know how far it went. I just noticed just a great big place around where I was sitting. I was suffering too bad, I never paid no attention no-wheres else hut I did look to see where I fell.
“Q. Well, could you describe to the jury, as near as you can, how the substance appeared to you to be? What it appeared to you to be ?
“A. Well, it appeared to to tell you the it was floor wax. In other words, I’ve waxed floors myself, used to take a big wad you know and daub it down, you know, just smear through it just leaves a thick pasty look on the floor and that’s really what it looked like, while I wouldn’t say what it was because I don’t know. But just like you’d come around, just this way (witness indicates a circular movement), and there was thick and thin places in it.
“Q. In other words, it hadn’t been spread out smoothly?
“A. No, it sure hadn’t. . . .
“Q. Now, you say you can’t estimate the size of that?
“A. No, but I know it was a place that big.
“Q. Would that be approximately two and a half or three feet?
“A. Something similar.
“Q. And I believe you stated that you couldn’t tell what it was ?
“A. No, sir, I wouldn’t say what it was.”
While it is apparent that the above recital is somewhat disconnected and evidences a lack of ability on the part of appellant to give a clear and concise account of just what happened and all the attending facts and circumstances, nevertheless it is sufficient to convey the following information: Appellant entered appellee’s store to pay a bill; while attempting to do so she slipped on something and was caused to fall; the something was a spot on the floor about two or three feet in diameter, it looked like floor wax although she could not say positively; and, whatever it was it was in thick and thin streaks, and it appeared as though some one had taken a wad of cloth and tried to take something up off the floor or put or smear something on the floor.
In our opinion the above factual situation was sufficient to raise a question of negligence on the part of appellee. The incident occurred in the middle of the day and if the “spot” was the result of having waxed the floors, sufficient time had elapsed for properly finishing the job, and the extent and nature of the “spot” was such and the character of the place of business was such that it would not be reasonable to assume that some customer had inadvertently [and just recently] dropped it on the floor. In these respects at least this case is distinguished from Safeway Stores v. Mosley, 192 Ark. 1059, 95 S. W. 2d 1136, where a customer stepped on a lettuce leaf in a grocery store; Kroger Grocery & Baking Co. v. Kennedy, 199 Ark. 914, 136 S. W. 2d 470, where an employee slipped on “something” while trying to lift a sack of potatoes; and Kroger Grocery & Baking Co. v. Dempsey, 201 71, 143 S. W. 2d 564, where a customer slipped on a banana peel in a grocery store and where the evidence showed the store was swept five or six times a day.
There are numerous cases from other jurisdictions dealing with oily or greasy spots on the floor, with factual situations similar to those obtaining here, which hold that a jury question is presented, such as: Williamson v. Hardy, 47 Cal. App. 377, 190 P. 646; Ward v. Avery, 113 Conn. 394, 155 A. 502; Haverty Furniture Co. v. Jewell, 38 Ga. App. 395, 144 S. E. 46; and Bury v. F. W. Woolworth Co., 129 Kan. 514, 283 P. 917.
It is our opinion that it was error for the lower court to instruct a verdict in favor of appellee and for that reason the cause is reversed and remanded.
Mr. Justice dissents. | [
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GriffiN Smith, Chief Justice.
Nick Alvin was the only child of Kenneth and Wilma Lucas when they were divorced May 21, 1951, on tlie husband’s complaint. The boy was then three years and four months of age. The decree recited that the parties had entered into an agreement “suitable to both of them” regarding “possession, custody, and support of the child”. There were, said the Chancellor, no rights to be settled as to alimony, attorney fees, cost, or division of property. The decretal findings were that Mrs. Lucas had been guilty of abuse, contempt, and studied neglect. Ark. Stat’s, 34-1202, fifth subdivision. The agreement was that the child should remain with its mother. In June, 1951, the father alleged that because of changed conditions, and because of facts not known to him when the divorce was granted, the original order should be superseded. The appeal is from a decree giving custody to Lucas.
Charles G. Bishop married in 1934. His wife, Lucy Irene, procured a divorce July 23d, 1951. Irene had a son by a former husband. The son was 29 years of age at the time this case was tried.
Bishop and Wilma Lucas were married July 25,1951. Although the divorce decree granted on the wife’s complaint is dated July 23d, it mentions a property adjustment executed July 18th. Bishop testified that he settled more than $60,000 on Irene. Costs and attorney’s fees, he said, increased the expenditure to about $65,000.
Bishop had served in the army, but had been discharged several years before the transactions resulting in this litigation occurred.
Wilma married Lucas when she was 17. Her testimony was that she had not really loved Kenneth, but his letters (written from El Paso while on military duty) had over-persuaded her to take the matrimonial step. After being released froni the armed service in 1946 Kenneth completed his education under G. I. allowances. For several months he was a student at Conway and received a bachelor’s degree in biology. He then spent two years at Ft. Collins, Colorado, in the state A. & M., where in June, 1950, he received a master’s degree in animal breed ing. Shortly before Lucas completed his work at Ft. Collins Wilma went to Mabelvale, Arkansas, and Spent a month or two with her husband’s parents, Mr. and Mrs. Charles W. Lucas.
Kenneth Lucas procured a position at Lonoke in September, 1950, as a veteran’s instructor. Bishop had formerly been connected with Standard Oil Company as district superintendent, but at the time of matrimonial discord he owned a filling station on Asher avenue in Little Bock. As a side line he was interested in farming and livestock.. Through mutual interests Bishop met Kenneth in October, 1950. Because of his knowledge of livestock and familiarity with that part of Colorado where he had attended college, Lucas agreed to go with Bishop on a combination hunting and stock-inspection trip. As a result Bishop purchased a blooded bull for his farm of 146 acres near Mabelvale. From that time until the early part of March, 1951, Charles and Irene Bishop and Wilma and Kenneth Lucas frequently visited, sometimes at the Lucas home in Lonoke, and sometimes at Bishop’s home in Pulaski county.
On March 10, 1951, Kenneth re-enlisted in the army. His position as an instructor of veterans had ended and he was not able at that time to find employment commensurate with the army pay of a second lieutenant. He was sent to San Antonio, Texas, for study preliminary to an assignment to Fort Biley, Kansas. Lucas says that at the time he left Lonoke it was understood that Wilma and the little boy would promptly join him. Within a few days after Lucas reached San Antonio some one wrote him that Bishop and Wilma were having “an affair”. Lucas called Wilma by telephone. She denied any misbehavior and, according to Lucas’ testimony, promised him that she would leave at once for San Antonio. Instead of doing this she sent a telegram she could not come, but would write. Without waiting for the letter Lucas procured a short leave and returned to Lonoke. The result of their conversations was that Wilma announced she wanted a divorce. She had, in fact, written the letter mentioned during the conversation by telephone.
Lucas testified that he got Mr. and Mrs. Bishop together, and with Wilma, and with Bishop or Wilma separately, the disagreements were discussed. There is testimony that Bishop advised Wilma to wait six months and see if matters would not adjust themselves. On the other hand there is testimony that Bishop took a belligerent attitude. But Lucas, during the trial resulting in this appeal, insisted that he believed Wilma, did not suspect her of unfaithfulness, and merely consented to a divorce because she wanted it that way. He had formerly testified that during January, February, and March, “. . . and up until I went into the service, almost every-other night or three times a would go to [the Bishop] house, or they would come to Lonoke”.
Mrs. Bishop testified that she became suspicious of the relationship between her husband and Wilma. Her apprehensions were aroused when the two would leave the room together and he away from the card table an abnormal length of time. On two occasions she trailed Bishop to Lonoke and claimed to have spied on him in the Lucas home after Kenneth went to Texas. There was evidence from disinterested sources that Bishop’s car was frequently seen at the Lucas home. Mrs. Bishop claimed that she watched at night from a point of concealment in the Lucas yard and for nearly two hours observed transactions and heard conversations suggestive of adultery.
The printed abstract contains 530 pages, and the briefs add another 145 pages to the story of matrimonial distress. The Chancellor awarded the father full custody of Nicky on the theory that Bishop had broken up the Lucas home, that he was a man of positive convictions and violent temper, a heavy drinker; that he used profanity in the child’s presence, and in other respects was not a suitable person to participate in the boy’s family life. There was testimony that the paternal grandparents were wine and beer drinkers, that the small country home they occupied was inadequate, and that the environment there was not of the best. We do not rest our decision upon any of the evidence touching Mr. and Mrs. Charles W. Lucas.
Interested witnesses testified that Kenneth and his wife drank to excess, that while the card parties were in progress beer and whiskey were consumed, and that the boy was being taught to drink beer, swear, and use indecent words. In some instances the offending person was the father himself; at other times it was Bishop. Lack of supervision was attributed to Wilma.
We think the record justifies a belief that the so-called drinking and swearing prior to the time Kenneth left for Texas were chargeable to each man. Kenneth, in contending that Bishop swore in the child’s presence, admitted that swearing occurred in his home when the card parties were [Bishop] would use profanity. If the child was asleep I’d let it go, but if the child .was awake I cautioned him right there”. Kenneth also admitted having given the child beer, “But Bishop would try to give him excessive amounts”.
When asked whether he made home brew in Nicky’s presence, Kenneth replied, “I did while I was in school, and this child did not receive it then”. Commenting on convivial customs pertaining to the card parties, Kenneth testified: “When [Lucas and his wife] would come down to play cards he would bring two-fifths with him about every He would drink two or three shots to my one. Then when we would go out to visit them, instead of feeling cheap, I bought a bottle and would bring it to his house. ... I bought one-fifth at a time”. In speaking of Nicky’s agility, the father testified: “He is very alert and has been that way all his life. You have to watch him: that’s right. I was not the one who actually gave the child beer in my household. I have given him drinks of beer, but Bishop would try to give him excessive amounts. I don’t deny that. Sometimes I would have a can and [the child] would get it before I would have a chance to get it away from him, and I would stop him, [hut] occasionally I gave him a drink of beer ’ ’.
Question: “During the time you were living [with Wilma] did she take good care of the child1?” A. “0, yes! She was a good mother”. Q. She took good care of him?” A. “Always! Sometimes slie would say some-tiling-and I would caution her about [it], but she was a good mother and tried to train the child well. If something happened and she couldn’t control him she would say, ‘Kenneth, will you get after Nicky?’, or, ‘Nicky, your Daddy is going to get you’. She would caution him that way”.
It is difficult to determine which side prevailed respecting preponderating testimony regarding drinking, swearing, and secondary misconduct. A former state policeman testified that he knew Bishop well and had never seen him under the influence of intoxicants. Bishop swore that his drinking was of a very moderate kind, and that he positively did not touch liquor or swear in the presence. He appears to be devoted to Nicky. Mrs. Irene Bishop spoke highly of her own son, who had been reared and educated with Bishop’s assistance. He is a wholesome, highly moral, non-drinking youth, and this is true notwithstanding the fact that the young man spent 17 jrears in the environment Mrs. Irene Bishop now so bitterly assails.
Appellee’s testimony that he believed his wife when she told him there was no ground for suspicion regarding her relationship with Bishop is unconvincing. It is inconceivable that a husband and the father of a small child would continue the familiar social contacts Lucas admits if the course of conduct Mrs. Irene Bishop testified to obtained during the period in question. Certainly Lucas was aware of the whispered scandal when the divorce decree was rendered May 21st. At that time he wanted Wilma to have the child. Her subsequent relations with Bishop appear to have been the provocation actuating the custody proceedings. The custody agreement, of course, was not binding on the court. Marr v. Marr, 213 Ark. 117, 209 S. W. 2d 456. In Aucoin v. Aucoin, 211 Ark. 205, 200 S. W. 2d 316, it was said that no inviolate rule as to custody has been established by this Court, the thought being that each case must be adjudged on its peculiar facts.
Here the father admits the mother’s love for the child and her capability in caring for it. The only complaint is that conduct has changed the relationship so far that the child should he taken from its mother’s new home and placed with the grandparents. This, we think, was a mistake, although the case is not free from pathetic angles.
The decree is reversed, with directions that an immediate mandate issue, giving custody to the mother. However, each party will pay his or her own costs and attorney’s fees.
Mr. Justice Ward dissents. | [
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Ed. F. McFaddin, Justice.
This litigation involves a partnership between Mrs. Alexander, appellant, and Miss Marguerite Sims, now deceased. Beginning in 1942, these ladies engaged in the retail jewelry business in Stuttgart, under the firm name of Sims & Alexander. The partnership continued, with financial success, until terminated by Miss Sims’ death, which occurred on April 10, 1950. The executor of her estate (appellee here) brought this suit to have Miss Sims’ interest determined in the partnership assets. Mrs. Alexander claimed that all of Miss Sims ’ interest in the partnership passed to Mrs. Alexander, because of a written agreement, executed October 14, 1949, which agreement is subsequently to be discussed. The Chancery Court refused to give effect to the agreement, and held that Miss Sims’ interest in the partnership was the property of her estate. From that decree, Mrs. Alexander prosecutes the present appeal.
A somewhat lengthy recital of facts (as we find them from the voluminous record) is necessary to present the situation leading up to the said agreement, and its subsequent renunciation by Miss Sims:
(a) In the summer of 1949, the partnership of Sims & Alexander decided to borrow money to purchase fixtures for the jewelry store, and the partnership applied to the Reconstruction Finance Corporation (hereinafter referred to as “R.F.C.”) and the Prairie County Bank of Hazen, Arkansas (hereinafter called "Bank”), for a loan, which was to be handled 70% by the R.F.C. and 30% by the Bank. While the application was being processed by the R.F.C., and before it was approved by the Bank, Miss Sims became ill.
(b) On September 16, 1949, Miss Sims, aged 48, entered a hospital for diagnosis and treatment, and underwent surgery on September 23rd. On tlie same day, and immediately after the operation, the attending physician, in a conference with Miss Sims’ mother and Mrs. Alexander, advised them that Miss Sims had malignancy (cancer) in an advanced stage; that she would live only a short time, and might die before Christmas, 1949. The physician did not inform Miss Sims of her malignancy until she made direct inquiry on October 15, 1949. That it came as a shock to her, is shown by her emotional reaction on that date, subsequently- to be mentioned.
(c) While Miss Sims was in the hospital, the R.F.C. approved the loan to the partnership of Sims & Alexander, but the officials of the Bank, having learned of Miss Sims ’ condition, refused to complete any part of the loan unless and until Miss Sims’ father (I. T. Sims) would personally guarantee repayment of the entire loan. The preponderance of the evidence in this case (as found by the Chancery Court and by us) discloses that Mrs. Alexander induced Mr. Sims to sign the guaranty on October 8, 1949, by telling Mr. Sims that if and when anything happened to Marguerite Sims, then all her interest in the partnership would belong to Mr. and Mrs. Sims. On the strength of such representations by Mrs. Alexander, Mr. Sims signed the guaranty, and the proceeds of the loan were delivered to Mrs. Alexander for the firm of Sims & Alexander.
(d) The foregoing was on October 8th; but on October 14th, while Miss Sims was still in the hospital, and before she learned of her malignancy, Mrs. Alexander had an attorney to prepare the agreement on which she relies. She took the agreement to the hospital on October 14th, and she and Miss Sims signed and acknowledged it, and Mrs. Alexander retained both copies. This agreement provides inter alia “that in the event of the de cease of either of the partners that all of the partnership assets shall ipso facto immediately become the sole and exclusive property of the surviving partner . .
(e) On October 15, 1949, prior to being' taken to her parents’ home in Hazen, Miss Sims, for the first time, made explicit inquiry of her physician as to her condition ; and the physician frankly told her of the extremely serious malignancy disclosed by tlic operation and the doubtful prognosis. He testified:
“Q. Wlien you first saw her on the 15th, was she in a good frame of mind ?
“A. When I went to have a conference with her!
“Q. Yes, sir.
“A. I think so ; yes, sir.
“Q. And she broke down and cried wlien you told her her true condition ?
“A. Yes, sir.
‘‘Q. And that was the first time she had point-blank asked you just what her condition was ?
“A. Yes, sir. That is, as to this extent. I think after the operation she wanted to know what was done and I told her that we took some sections of tissue, but I did not ever, until the day she went home, as I recall, go into any detail about the thing at all.”
(f) Thus, on October 15th, one day after she had signed the agreement with Mrs. Alexander, Miss Sims learned that her days were numbered. The same day she went to her parents ’ home at Hazen. But on October 31st, Miss Sims returned to the hospital for treatment, and remained until November 12th. On that last mentioned day, Miss Sims, accompanied by nurses, was taken to her parents’ home in Hazen, and remained until December 27th, when she returned to the hospital, where she stayed until her death on April 10, 1950.
(g) Mrs. Alexander continued to visit with Miss Sims, but on February 14, 1950, Mrs. Sims (mother of Marguerite Sims) called Mrs. Alexander and asked that she forward a copy of the agreement. This was done the next day. Then, on February 21, 1950, Miss Sims executed her will, § 2 of which provides:
“I give, devise and bequeath to my father, I. T. Sims, and to my mother, Bessie B. Sims, share and share alike, my entire interest in the partnership of Sims and Alexander, composed of myself and Helen S. Alexander, engaged in the jewelry business in Stuttgart, Arkansas. It is my desire and wish that this partnership be liquidated, and the share coming to me paid to my said parents, out of which they shall reimburse themselves for their expenditures in my behalf during my illness, retaining the residue as a bequest from me.”
(h) Miss Sims died on April 10, 1950, and on May 26, 1950, the executor of her estate filed the present snit, with the result as heretofore mentioned.
So much for the recital of facts. The decision in this case turns on the agreement, dated October 14, 1949, and relied on by Mrs. Alexander. Absent any question of consideration, testamentary nature, or fraud on a partner or his creditors, spouse, heirs, etc., some courts have upheld a partnership agreement in which each partner agrees that the survivor will receive all of the assets of the partnership, but such an agreement is always subjected to the closest scrutiny to see if the utmost good faith was observed.
Mrs. Alexander makes three claims regarding the agreement here involved. First, she claims that from the beginning of the partnership in 1942, there had been an oral agreement that in the event of the death of one partner, the other would receive all of the partnership assets; but she does not rely on this oral agreement as binding. Secondly, Mrs. Alexander claims that the original agreement was at one time reduced to writing by Miss Sims and the written instrument was lost; but Mrs. Alexander’s case is not now predicated on proving a lost instrument, and the evidence in the record is not sufficient to sustain such claim. Finally, Mrs. Alexander claims that the agreement of October 14, 1949, was to make a valid, acknowledged memorial of the original agreement; and we conclude that the claims regarding an oral agreement and a prior written agreement, merely go to the extent of showing that there had been some discussion between the partners about something that they might do in the future.
We come to the conclusion then that on October 14, 1949, Mrs. Alexander obtained the execution of the written agreement, when her partner, Miss Sims, was ignorant of her impending death, and when Mrs. Alexander, knowing such fact, did not divulge it to Miss Sims. Under these circumstances, we think that Mrs. Alexander failed to observe and obey the rule which requires partners to exercise the utmost good faith in their dealings with each other. In Drummond v. Batson, 162 Ark. 407, 258 S. W. 616, Mr. Justice Hart said (page 421) : “Partners are bound to conduct themselves with good faith towards each other, . . .” The Uniform Partnership Act (Act 263 of 1941) recognizes this rule. See Zack v. Schulman, 213 Ark. 122, 210 S. W. 2d 124, 2 A. L. R. 2d 1078.
In Story on “Partnership”, the author traces the duties of partners inter se from the Roman Republic to the present time. On page 291 of the 4th Edition, this appears: “The necessity of entire good faith, and of the absence of fraud on the part of partners towards each other, is inculcated by Cicero in terms of deep import and sound morality . . . Good faith not only requires, that every partner should not make any false representations to his partners, but also that he should abstain from all concealments, which may be injurious to the partnership business.”
In Burdick on “Partnerships”, 3rd Edition, page 320, the text states: ‘ ‘ One of the cardinal obligations of a partner is to exercise perfect fairness and good faith towards his associates in all partnership matters . . . A partner, who seeks to acquire his co-partner’s interest in the firm, is bound to act with the utmost frankness and honesty. ’ ’
In Gilmore on “Partnership” (Hornbook Series), the rule is stated on page 374: “Partnership is a relation of trust and confidence, and partners must observe the utmost good faith towards each other in all of their transactions, from the time they begin negotiations with each other, to the complete settlement of the partnership affairs.”
In 40 Am. Jur. 217, et seq., the holdings from cases generally are summarized: “The relationship of partners is fiduciary and imposes upon them the obligation of the utmost good faith and integrity in their dealings with one another with respect to partnership affairs. . . . The partners must not deceive one another by concealment of material facts . . . The general rule that the utmost good faitli is required of partners in their relationship with each other, and that, since each is the confidential agent of the other; each has a right to know all that the others know and each is required to make full disclosure of all material facts within his knowledge in any way relating to partnership affairs, is held almost universally to apply in the case of a sale by one partner to another of his interest in the partnership.”
There is an Annotation in Ann. Cas. 1912D, page 1245, in which cases are cited from a score of jurisdictions to sustain this statement: '‘The relation of partners is such that in a sale of his interest in the partnership by one partner to another, the utmost good faith must be observed, and the concealment of any important fact or the failure fully to disclose all knowledge affecting the value of the partnership, or the interest' proposed to be sold, or any fraud of any kind, will operate to defeat the sale.”
In the case at bar, the effect of the agreement which Mrs. Alexander caused to be prepared and signed by Miss Sims, was the same as a sale of Miss Sims’ interest in the partnership. Mrs. Alexander knew that Miss Sims had only a short time to live, and that the effect of the instrument was for Miss Sims to give all her interest in the partnership to Mrs. Alexander. Yet, Mrs. Alexander, knowing all these facts, did not disclose them to Miss Sims when the agreement was signed, and Miss Sims did not learn of her serious condition and impending death until the next day. We hold that under these circumstances, the agreement was susceptible of being set aside. That Miss Sims did renounce the agreement is thoroughly shown by her will, in which she bequeathed her interest in the partnership to her parents. The validity of the will is not attacked, and it clearly proclaims that Miss Sims renounced the agreement here relied on by Mrs. Alexander. This suit was to accomplish and complete such renunciation.
For the reasons herein stated, the decree of the Chancery Court is affirmed.
I. T. Sims, father of Marguerite Sims, is the executor of her estate. He also intervened as an individual.
The entire instrument (omitting only acknowledgments) reads:
“This Agreement made and entered into on the day and date hereinafter set forth, by and between Marguerite E. Sims, hereinafter referred to as First Party, and Helen S. Alexander, hereinafter referred to as Second Party, for and in consideration of the sum of One Dollar in hand paid and mutual covenants and consideration more specifically hereinafter set forth, WITNESSETH:
“Whereas, the parties hereto did during the month of November, 1942, entered into and form a co-partnership in which each of the parties had an equal interest and in which each of the parties hereto invested certain capital and agreed to devote their mutual efforts to said partnership, the same being known as Sims & Alexander, and was formed for the purpose of operating and carrying on a retail jewelry business in the City of Stuttgart, County of Arkansas, State of Arkansas, and
“Whereas, said partnership business has been successful in its operation and the parties hereto desire to express in writing, certain terms and conditions that they respectively agreed to at the time of the formation of said partnership, and long prior to the execution of this instrument have advised their respective families in regard thereto:
“Now, Therefore, it is mutually agreed by and between the parties hereto that said original oral agreement entered into at the time of the formation of the partnership contained the following conditions, to-wit:
each of the partners therein and parties hereto did agree and now agree with each other that neither would sell her interest in said co-partnership to any person, firm or corporation whatsoever, except by and with the consent of the opposite partners, both as to price and the person of the buyer.
each of the partners therein and parties hereto did agree and now agree with each other that in the event of the decease of either of the partners, that all of the partnership assets shall ipso facto immediately become the sole and exclusive property of the surviving partner, and that this shall apply to all of the assets of the partnership of Sims & Alexander, whether real estate, personal estate, or mixed.
“That the conditions set forth herein of the original partnership agreement were made at the time and for the purpose of inducing each of the partners to use her best efforts to the promotion of the success of the partnership venture; that the said partnership venture has been successful and the parties hereto desire to confirm, in writing, the validity of the original agreement between them, and do hereby ratify and confirm to each other the terms and conditions herein mentioned and set forth.
“In Witness Whereof, each of the parties have hereunto set their hands and seals to this agreement executed in duplicate on this 14th day of October, 1949.
Here are some of the other excerpts from the doctor’s testimony:
“Q. To refresh your memory, doctor, didn’t you tell her her condition the day she went home, on the 15th of October?
“A. As I recall it, before she went home, she wanted to know what to do and I told her it would be necessary for her to come back and have additional treatment, X-ray treatment. That brought up the question of this thing in the lung again and I think that I could say that on or about this date Miss Marguerite knew that the condition in her lung was a spread or metastasis of the cancer in the pelvis.”
“Q. Just tell the substance of that conversation between you and Miss Sims on what you designate as the 15th of October, 1949?
“A. When Miss Sims was ready to go home, she had some very definite things in mind that she wanted to ask me, such as procedure and she said, ‘was the tumor removed’ and I said, ‘no’ and she said ‘why,’ and ‘why didn’t you take it out,’ and I had to tell her we didn’t think it was the thing to do, we thought it would respond better to X-ray treatment. That brought up again the question of the pathology of the pathology in her lung, and she asked what we were going to do about that and I told her that we were going to have to use X-ray on that, too, Miss Marguerite. In connecting the two things, I don’t think there was any doubt about Miss Marguerite knowing.”
“Q. Did the information you gave her seem to disturb her mental her?
“A. Yes, sir, I think she was upset about it.
“Q. What demonstration did she make?
“A. She cried and was upset. She wanted to know if there was anywhere else I thought she could get better treatment than what we had available locally here.
“Q. And that was the first time that you had told her of the seriousness of her condition?
“A. Yes, sir.
“Q. And you are convinced then that she knew she had a cancer?
“A. I am satisfied in my mind she did.
“Q. From what you told her there at that time?
“A. I think any of us would recognize the fact. Miss Marguerite was more than the usual business woman. I think she was a highly intelligent woman and when we told her we couldn’t remove the tumor and were going to have to use I think any of us would appreciate the fact there was malignancy.”
See McKinnon v. McKinnon, 56 Fed. 409; Michaels v. Donato (N. J.) 67 Atl. 2d 911; and other cases cited in the Annotations in 73 A. L. R. 983 and 1 A. L. R. 2d 1207. See, also, 40 Am. Jur. 347. | [
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Minor W. Millwee, Justice.
Appellant, Earl D. Rider, brought this action against appellee, City of Batesville, Arkansas, seeking recovery of approximately five months’ salary as chief of police from October 1, 1949, on which date he alleged he was wrongfully discharged from office. Appellant charged that his dismissal was without notice of any charges having been preferred against him and in violation of state civil service statutes generally.
One of the defenses interposed by the city was that appellant’s written resignation from office was duly accepted in June, 1949, subject only to the finding of a suitable officer to replace him, which was done on October 1, 1949; and that appellant fully acquiesced in such action.
Trial before the circuit judge, sitting without a jury, resulted in a judgment dismissing appellant’s complaint. The court found that appellant’s resignation as police chief was duly accepted by the mayor and city council on June 28, 1949, pending the procurement of a suitable officer to replace him, and that appellant had fully acquiesced in the order of the Civil Service Commission of Batesville which appointed his successor. If there is sufficient evidence to support the finding' that appellant had effectively from office at the time his services were discontinued, other issues become irrelevant.
On the night of June 21, 1949, a young Batesville man was fatally shot by a member of the six-man police force of the city. See, Long v. State, 217 Ark. 712, 233 S. W. 2d 237. The killing resulted in considerable public tension and the immediate resignation of the assistant chief of police and two patrolmen involved in the incident. According to the testimony on behalf of appellee, appel- laiit, who was then serving as chief of police, also offered to resign. At the suggestion of Mayor Chaney, appellant arranged for a conference between the two and Bill Walker, a member of the state police force, on June 26. At this conference, Walker, in appellant’s presence, declined Mayor Chaney’s offer to appoint him chief of police but agreed to assist in finding a suitable man to replace appellant.
On June 27 an informal meeting of the mayor and several aldermen was held and it was decided that appellant’s resignation be requested. Mayor Chaney and Alderman Edwards, chairman of the police committee of the council, testified that they called on appellant who freely and without protest signed a written resignation addressed to the mayor and city council as follows: “I hereby tender my resignation as police chief of the City of Batesville, effective now or at your will.”
On June 28 a meeting of the city council was held at which a committee of about thirty citizens appeared and requested a complete change of police officers. That part of the minutes of the June 28 meeting introduced at the trial reflects that a motion was duly made to accept the recommendations of Mayor Chaney, which included the following: “I may now advise you that we have the written resignation of the Chief of Police Earl Rider, effective now or at a later date, as we may see fit. I feel that we cannot lose our entire force at once and recommend that we ask Chief Rider to continue until a suitable officer be found to replace him.” While the minutes introduced do not reflect further action on the motion, it was the understanding of council members that the mayor’s recommendations were concurred in and fully adopted.
Mayor Chaney and members of the police committee continued their efforts to secure a successor to appellant until July 26 when the council adopted an ordinance creating and appointing a Civil Service Commission for the Police Department. On August 9 the council adopted a resolution setting forth the personnel, salaries and vacancies in the department. In enumerating the vacancies the resolution recites: “Vacancy in the post of Chief of Police, effective when the Civil Service Commission shall have set up their rules and regulations, held examination for said position, and certified and appointed a man thereof.”
The Commission proceeded to hold examinations on September 19 and issue an order on September 27 certifying and appointing James Mitchum as appellant’s successor. Appellant surrendered the position to Mitchum on October 1 without protest and has not since performed, or offered to perform, the duties of the office. There was no appeal from the order of the commission appointing appellant’s successor.
Appellant denied that he executed the written resignation without protest and stated that he was assured by Mayor Chaney that nothing would be done about it. He admitted arranging the conference with Walker, but stated that the latter was offered the position of assistant chief of police at the conference. Walker understood that he was being offered the job of chief of police, and Mayor Chaney was positive that this was true.
On August 24 appellant wrote Mayor Chaney requesting the return of the written resignation. Chaney testified that no council action was taken on the request because the matter was then in the hands of the Civil Service Commission and appellant’s resignation had been duly accepted. Appellant knew of the examination given by the commission for police chief, but did not offer to take it because he understood that he would be blanketed in without examination.
For reversal appellant contends that the evidence shows that he had no intention of resigning his office or, if so, the resignation was never accepted and was effectively withdrawn by the written request for its return on August 24, 1949. While some courts hold that an unconditional resignation of a public officer to take effect immediately cannot be withdrawn, the general rule, apart from statutory provisions, is that a mere presentation of a resignation does not work a vacancy and a resignation is not complete until accepted by proper authority. McQuillin Municipal Corporations (3rd Ed.) § 12-125; 43 Am. Jur., Public Officers, § 167. In most jurisdictions a resignation may be withdrawn before it is acted upon but not after it has been accepted, and a resignation effective in the future may not ordinarily be withdrawn after acceptance. Although there is authority to the contrary, the preferable rule is stated in 67 C. J. S., Officers, § 55 f., as follows: “If an acceptance is regarded as essential in order to render, a resignation effective, an unconditional resignation to. take effect at a future date may not be withdrawn after it has been accepted.” See, also, 43 Am. Jur., Public Officers, § 170.
The written resignation submitted by appellant to the mayor and city council was unconditional in its terms. The evidence is sufficient to support the trial finding that the resignation was freely submitted to and accepted by the mayor and city council, subject only to the selection of a suitable replacement. There is no contention that the resignation was procured by duress or coercion. Appellant’s participation in the caucus on June 26 to procure his replacement and subsequent actions of the city council and Civil Service Commission, prior to the written request for withdrawal of the resignation, tend to support the conclusion that the resignation was duly accepted on June 28 and was not subject to withdrawal on August 24, at least, without the consent of the accepting authority.
The judgment is affirmed.
Ward, J., not participating. | [
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Holt, J.
Proceeding under §§ 80-404, et. seq., Ark. Stats., 1947, appellants, Andy Jones and other qualified electors residing north and east of Little Red River in West Point School District No. 3, White County, along with J. II. Moody and three hundred and twenty-four other electors, who reside in Bald Knob Special School in White petition before the County Board of Education of White County, asking for an order, detaching the territory north of the River from the West Point District, and annexing it to the Bald Knob District.
October 16th, appellees intervened and demurred to the petition. The Board of Education overruled the demurrer, ordered an election in both districts, and held, in effect, “as a matter of law, ” that the petitioners would have to obtain a majority of all votes cast in each district, separate and apart from the other, before the Board could order such territory taken from the West Point District.
On appeal to the Circuit Court February 26, 1952, the Court, in its judgment, said: “That it rejects and reverses in part the conclusions of law made by the Board of Education * * and in lieu thereof 'declares the law to be:
“(a) That there is no need for an election to be held in Bald Knob Special School District, for the reason that said District through its Board of Directors has given its consent in writing for the ‘affected area’ to be annexed to it when legally detached from West Point School District No. 3.
“(b) That the consent of a majority of all of the qualified electors of West Point School District No. 3, by petition or election is necessary to authorize the Board of Education to detach territory from West Point School District No. 3 to be annexed to the Bald Knob Special School District,” and since the petitioners had conceded in their pleadings that they did not have, and could not have, the consent of the majority of the qualified electors of all of the West Point District for said territory to be detached for annexation purposes, it dismissed appellant’s petition “for the reason that the desired relief is not authorized by law. ’ ’ .
From the judgment is this appeal.
The judgment of the trial court was correct.
Appellants say: “The sole purpose of this appeal is to obtain a clear interpretation of §§ 80-404 and 80-409 of the.Revised (1947) Statutes which pertain to taking-territory from one school district and annexing it to another. ’ ’
Material parts of § 80-404, Ark. Stats. 1947, applicable to the question presented are: “The several county boards of education shall have full power and exclusive right within their respective counties to * * * take territory from one or more districts and add it to other districts the consent of a majority of the electors in each school district affected as shown by petitions or elections as herein provided. * * * provided, that said courts (county boards) may, in their discretion, take a portion of one district and add it to another upon the petition of a majority of the qualified electors, residing in such district from which same is taken, * * *.’
Section 80-409 provides: “The county board of education, upon a petition of ten per cent of the qualified electors in the territory affected, may submit to the electors at * * * a special election the question of * * * the annexation of the territory thereof to another district, as provided in § 44 (§ 80-404) of this act, * *
Here, appellants seek to detach a part of West Point District No. 3 and annex it (or add it) to the Bald Knob District (both districts being in White County) without the consent of a majority of the qualified electors in the entire West Point District. Appellants contend that the consent only of a majority of the electors in the area sought to be detached from the West Point District is necessary under § 80-404. We cannot agree.
The identical question pr esented has been determined adversely to appellants’ contention by this court in the very recent case of Altus-Denning School District No. 31 v. Ozark School District No. 14, 219 Ark. 404, 242 S. W. 2d 709. In construing § 80-404 above, we there held: (Head note 2) “Petitions signed by a majority of the electors in that part of a school district attached to another district in 1930 were not sufficient to effect the district as a whole, and the complaining segment was powerless, in 1949 and 1950, to detach itself from the entity of which it was a part without a vote of the entire district,” and in the body of the opinion, we said: “It was not the intent of lawmakers to permit a portion of a district to make its own election and then, if supported by the county board, become attached to a new district. ’ ’
Finding no error, the judgment is affirmed. | [
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Minor W. Millwee, Justice.
This is a proceeding by appellant, Mary Carrntb Jones, to contest the will of her father, L. B. Carruth, who died August 19, 1949, at the ag’e of seventy-sis years.
At the time of his death the testator owned about 3,000 acres of farm lands in Crittenden County, Arkansas, valued at approximately $200,000 and about $155,000 in cash, bonds and other securities. Under the terms of the will executed on February 3, 1948, the residue of the estate after payment of debts and taxes was placed, in trust and testator’s wife, Ostella Carruth, was named executrix and trustee with unlimited power and authority to handle the trust estate. It was also directed that the annual net income from the operation of the trust during the wife’s lifetime should be distributed 70% to her and 30% to appellant.
The will then provides: “After the death of my wife, Ostella Carruth, the entire net income from the Trust Estate will be distributed annually to my daughter, Mary Carruth Jones, subject only to the special bequest in favor of Simon Carpenter. And after the death of my daughter, Mary Carruth Jones, the net income will be distributed annually as follows: 1/3 to my brother, Albert Carruth, if then living; 1/3 to my wife’s sister, Mrs. Lelia Hamilton, if then living, otherwise to her son, Thomas Hamilton, if then living; and 1/3 to Frank G. Barton, if then living, otherwise to his legal heirs, in accordance with the laws of descent and distribution then in effect in the State of Arkansas; in the event Albert Carruth dies prior to the vesting of the bequest in his favor, or during the life of the Trust, the devise to him will lapse, and the net income will be distributed equally between Mrs. Lelia Hamilton, if living, or if she is dead, to her son, Thomas Hamilton, if living, and to Frank G. Barton, or to his legal heirs, as above provided; subject only to the special bequest in favor of Simon Carpenter, or in the event, Mrs. Lelia Hamilton, and her son, Thomas Hamilton, should die before the bequest to them is vested, or during the life of the Trust, the net income will be divided equally between Albert Carruth and Frank G. Barton, or to his- legal heirs, as above provided. ...
“If the necessities of my daughter in any year should be more than her income from the Trust, then, in that event, the Trustee (Trustees), if convinced of her necessity, may only with the approval of the Chancery Court of Crittenden County make suck additional advances, even though the advance may have to come from the corpus of the Trust estate.
‘ ‘ On the termination of the Trust herein created, or at my death, should my wife, Ostella Carruth, my daughter, Mary Carruth Jones, my brother, Albert Carruth, my wife’s sister, Mrs. Lelia Hamilton, and her son, Thomas Hamilton, predecease me, I give, devise and bequeath unto my good friend, Prank Gr. Barton, the entire corpus of the Trust Estate, in fee simple, or if no Trust Estate intervenes, all of my property, real, personal and mixed, wherever situated, in fee simple to Frank Gr. Barton. If Prank Gr. Barton be not living at the date the devise to him would vest, then in that event, the devise to him will not lapse, but will descend and pass to his heirs in accordance with the law of descent and distribution then in effect in the State of Arkansas, in fee simple.
“Por many years Prank Gr. Barton has been my close friend and advisor and has aided me materially to accumulate what property I now own, not only financially, but in many other ways and it is partly on this account and partly on account of my friendship and high regard that I hold for him that I am directing that he share in my estate as herein provided. ’ ’
It was further provided that if testator’s wife should resign as trustee on account of her health or should die before the testator, then title to the trust estate should vest in appellees, National Bank of Commerce of Memphis, Tennessee, and Prank. Gr. Barton, as trustees with the same powers and authority as «granted to the wife as original trustee.
Paragraph 2 of the will reads: “I have already purchased and paid for two separate houses for my daughter, Mary Carruth Jones, one of which she now occupies and the other she rents, and the title to both is now held by her, and in addition thereto, I have given her various sums of money for her maintenance and support since she reached her majority.”
The special bequest to Simon Carpenter, testator’s faithful negro chauffeur, was the rent from a specified forty-acre tract on the condition that Carpenter remain in the continuous employment of testator’s wife during her lifetime.
Mrs. Ostella Carruth was in good health when the will was executed, but became disabled in July, 1948, from a paralytic stroke which destroyed her power of speech. Shortly after testator’s death, she tendered her written resignation as trustee and appellees were appointed trustees in succession by the Crittenden Chancery Court as provided in the will. The will was admitted to probate by order of the Crittenden Probate Court August 26, 1949.
On February 18, 1950, appellant filed her petition to contest the will on the grounds that the testator was of unsound mind and without testamentary capacity on February 3, 1948, and that appellee, Frank G. Barton, had over a period of years exercised undue influence over the testator to execute the will. Separate answers were filed by Frank G. Barton and the appellees jointly which generally and specifically denied the allegations of the petition. After an extended hearing-in which nearly 100 witnesses testified and 3,000 pages of testimony and exhibits were introduced, the trial court rendered judgment upholding the will and dismissing appellant’s petition. The primary issue on this appeal is whether the judgment is contrary to the preponderance of the evidence as appellant earnestly contends.
Testator was born and spent his early boyhood near Tupelo, Mississippi. He moved to Crittenden County, Arkansas, when he was a young man and began farming near Crawfordsville, Arkansas. A. P. Carruth, his brother, assisted him in his farming operations at different times from 1901 to 1910. Testator married a young lady of Crittenden County who died soon after their marriage. Shortly thereafter he married Ostella Rowan, a boyhood sweetheart, with whom he lived until his death. The appellant is their only child.
Testator first rented and then started acquiring farm lands which he operated successfully from the beginning. In 1912 he had what his brother and the appellant called a nervous breakdown, but what a physician who assisted in treating him testified was pellagra. He rented out the lands he had then acquired and with his wife and the appellant, who was then about seven or eight years old, moved back to Mississippi for treatment of his malady by his relatives, Dr. L. 0. Carruth and son, Dr. Roy Carruth. Testator recovered from his illness and returned to Crittenden County after an absence of about two years. He continued to accumulate more farm lands and his early farming operations were financed through the J. T. Fargason Co., a Memphis cotton firm. When this firm encountered financial difficulties and became unable to render the type of financial assistance required by the testator, he obtained a connection with the F. G. Barton Cotton Co. in 1928. He continued to do business with that firm until his death.
Appellee, Frank G. Barton, who was vice-president of the cotton company in 1928, and the testator became and remained close friends and associates until the latter’s death. Through the years testator borrowed from the firm to purchase lands, to furnish his farming operations and those of his tenants and lessees, and to discharge other indebtedness including the purchase of a home in Memphis for appellant and the payment of a loan on a life insurance policy. He sold all his cotton through the company and made the firm his business headquarters. He used the office help in negotiating contracts, leases, mortgages, and other instruments negotiated with tenants and lessees. He frequently consulted with appellee Barton in reference to contemplated trades, cotton market quotations, and his farming operations generally. Both the testator and his wife used the firm very much as a bank, drawing drafts on it to pay various expenses including personal bills. Testator was charged the same interest and commissions for the firm’s services as other customers.
Testator was successful in his farming operations which he actively pursued. He moved to Memphis, Tennessee, which is only a few miles from his Crittenden County lands, for a time about 1915 and then moved back to Crittenden County. At his wife’s insistence he purchased a comfortable home known as “Bed Acres” in Memphis in 1938 taking title in his wife’s name. He rented most of the lands that year to another Crittenden County planter, hut resumed the active management of the farms upon the latter’s untimely death the same year.
Testator continued to farm portions of his plantation and to rent or lease various tracts until 1944 or 1945 when he began to rent or lease all of it to several tenants and lessees. Thereafter he remained active in the operation of a ginning company and in negotiating contracts and mortgages with his tenants most of whom he continued to furnish. Until his wife was stricken in July, 1948, he maintained living quarters in residences on his farm in Arkansas where he usually spent most of the week and returned to Memphis over the weekends. He also remained active in supervising the operation of the lands by tenants and lessees with whom he continued to advise until his death.
Numerous witnesses on both sides attested to the fact that testator was eccentric, nervous, sentimental, emotional, restless, extremely talkative and dominating-in conversation. Several witnesses, some of whom were tenants or servants on testator’s plantation, testified that he carried a pistol, would call the negro laborers on his farm together at any time of the day or night and lecture, pray and preach to them; that he would become so excited in conversation that he would stomp his hat, curse and sometimes tear off his clothes; that he would jump from one subject to another in conversation; that he would make improper advances to negro women servants on the place; that he would whip the negroes with his hat, and tell them that if they wanted to go to Heaven, they would have to get an order from him. He was also described as a man who enjoyed putting on a show, and could “put on a Thespian act that would excel the Barry-mores.” He would break down and cry like a child and say his daughter did not love him.
Despite these peculiarities, most of the tenants and servants were not afraid of him and remained loyal and devoted to him. Some of the lay witnesses testified that in their opinion testator was insane or not “at himself” when he made the will, while others hesitated to go this far and refused to say that he was insane at any time. Others thought that he was mentally unsound at times. There was evidence that the over-dramatic demonstrations of the testator were not without purpose; that he insisted on his hands working and would call them together when something would go wrong on the plantation. Some witnesses considered testator’s way of handling labor as béing very effective.
Numerous witnesses on behalf of appellees who were longtime friends or business associates of the testator described .him as being a rugged individualist, above the average in intelligence, a keen business man, a good trader, a man of a very high order of mentality, most alert, a born leader, and a very ambitious and determined man.
Dr. ft. B. Flaniken, who was the testator’s family physician and treated him in his last illness, described the testator as being much above the average in intelligence and stated that his mind was normal and sound .when the will was executed. Appellant discharged Dr. Flaniken as her mother’s physician after she learned that he did not support her theory as to the testator’s mental condition. Dr. Flaniken had also formerly been appellant’s family physician. . Dr. Boy Carruth, who assisted in the treatment of the testator in 1912 and thereafter saw him several times each year, concurred in the opinion expressed by Dr. Flaniken. Numerous businessmen, associates, and acquaintances of the testator testified that the testator in their opinion was sane at the time of the execution of the will.
Two psychiatrists who had never known or treated the testator testified on behalf of appellant. In answer to an eight-page hypothetical question' they gave an opinion that testator was of unsound mind when he executed the will. Among the numerous assumptions included in the question were those that the testator had a sense of grandeur, that he was constantly under stress of a fear that someone was going to do him great personal injury; that he once had shot and killed a man at the back end of his store who testator claimed was trying to break in and there was no evidence of such breaking in; that during the latter years of his life he lacked memory for events of recent happenings; that he mistakenly contended from appellant’s first marriage that she did not love him; and that he tried to and succeeded in breaking up appellant’s first three marriages. It would unduly prolong this opinion to discuss the evidence bearing on these and many other assumptions contained in the hypothetical question. It is sufficient to say that the preponderance of the evidence does not support these and some of the other factual assumptions upon which the opinions were based. One of the psychiatrists admitted that a good medical doctor who really knew the testator would be in a better position to give an opinion as to his sanity than one who takes a hypothetical question and bases an opinion solely thereon.
There was some evidence that testator at one time had syphilis which sometimes leads to paresis. Blood tests made in October, 1945, were positive and those made a few months later were doubtful or negative. A test made upon testator’s admittance to a hospital on'March 1,1948, for treatment of a gall bladder ailment was negative as to syphilis. The psychiatrists would not state positively that testator had paresis. Testator’s famity physician saw no evidence of paresis and doubted that testator had ever been afflicted with syphilis.
The will in question was prepared by attorneys, Gr. B. Seagraves of Osceola, Arkansas, and J. C. Kin-cannon of Memphis, Tennessee. The home of Mr. Kin-cannon is adjacent to that of the testator and they and their families had been friends for many years. Mr. Seagraves represented the Lowden Trust in Mississippi County and was also retained as attorney by F. G-. Barton Cotton Co. on a small annual fee basis. In the latter part of 1947, Mr. Seagraves Avas handling a legal matter pertaining to a real estate transaction for the testator Avlien the latter stated that he was going to make a new will and was getting what information he could about a trust estate. About the same time testator made inquiry of Mr. Kincannon as to the ability of Mr. Seagraves as a lawyer and stated that since most of his land was in Arkansas, he wanted to employ an Arkansas attorney to draft the will with Mr. Kincannon’s assistance.
At three conferences held in Memphis during the month of January, 1948, testator explained to his attorneys in detail how he wanted to dispose of his property. He told them that his daughter had been married four times; that she did not have any children and could have none; that he did not consider her competent' to take title to the property; and that he was especially concerned that his wife and daughter be taken care of during their lives, but did not want his estate dissipated. He also predicted that appellant would contest his will, but steadfastly refused to folloAv counsel’s suggestion that a forfeiture clause be inserted cutting her off in the event she did attempt to break the will.
Mr. Seagraves drew preliminary drafts of the trust provisions of the will which were discussed at the last two conferences and Mr. Kincannon \Ams directed to work on the final vesting provisions. The final draft of the will as executed’was prepared in Mr. Kincannon’s office at the third conference. Appellee Barton attended this conference at the insistence of the testator and Avas also present part of the time during the first two conferences. Before final execution of the avüI it was taken to the Carruth home by Mr. Kincannon and was read and discussed in detail with Mr. and Mrs. Carruth and approved by her. At testator’s.suggestion the will was executed at the National Bank of Commerce and witnessed by two officials of the bank. The original was placed in a lock-box of the F. Gr. Barton Cotton Co. where the testator kept other valuable papers.
After execution of the will testator discussed its provisions with many persons including Dr. Thomas R. Hamilton and A. P. Carruth and explained to them his reasons for the various provisions in the will. Appellee Barton told appellant about the provisions of the will, after it was executed, at a meeting in which he was trying to effect a reconciliation betweeii appellant and her father. The evidence is conflicting as to whether appellee Barton suggested the employment of Mr. Sea-graves.
The effect of the testimony of the attorneys who represented the testator is that the will was drawn as he specifically directed and that every provision was in accordance with his very decided and determined wishes and directions. They, as well as the attesting witnesses, were also of the positive opinion that he was of sound mind and disposing memory at the time the will was executed. There is no evidence that Mr. Kincannon had any connection with the appellee, Prank G. Barton, and appellant conceded that he was a man of high integrity.
The trial court made the following findings which were made a part of the judgment: “In this case the burden was on the contestant to show that at the time the will was executed the testator lacked the required mental capacity to execute the same. Our Supreme Court has defined the mental capacity to execute a will as: ‘1. The ability of the testator to retain in his memory, without prompting, the extent and condition of his property; 2. To comprehend to whom he is giving it; and 3. To realize the deserts and relations to him of those whom he excludes from his will.’
“The contestant in this case has shown that L. H. Carruth was an eccentric, but a man’s mental capacity must be gauged by something more than his idiosyncrasies and peculiarities. The evidence shows that Mr. Carruth was an able business man and most certainly knew the extent and condition of his property. It is the opinion of this Court that the contestant has failed to discharge the burden resting upon her to establish that L. H. Carruth did not, on the 3rd day of February, 1948, have sufficient mental capacity to execute his will.
“On the question of undue influence such as invalidates a will, our Supreme Court stated in McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590, ‘The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property.’
“The testimony shows a very close business relationship existed between L. H. Carruth and Frank Barton. It shows that Mr. Carruth had a very high regard for Mr. Barton’s business ability. The testimony shows further that Mr. Carruth was a man of independent thought and action. The will ivas prepared- by two reputable and competent attorneys. After receiving instructions from Mr. Carruth about the provisions of the will, the attorneys spent considerable time working on the instrument and it was nearly a month after the first conference until the execution of the will. In view of these things this Court cannot find that Mr. Carruth’s will was executed through fear, coercion or any other malign influence.”
The preponderance of the evidence supports the trial court’s findings.
While appellant concedes that this court is committed to the general rule that the burden of proof rested upon her to show lack of mental capacity and undue influence, it is argued that this burden shifted to appellees as it was shown that Frank G-. Barton was present and assisted in the writing of the will in which he was named as residuary legatee and that a confidential relationship existed between him and the testator. It is well settled by our decisions that the burden of proving the insanity of a testator, or that his will was procured by undue influence, is upon those who contest a will. Smith v. Boswell, 93 Ark. 66, 124 S. W. 264; Blake v. Simpson, 214 Ark. 263, 215 S. W. 2d 287. The mere fact that a legatee is present when the will is executed without any evidence that he induced or procured the execution of the will does not raise any presumption of undue in fluence. Page on Wills (Lifetime Edition) Yol. 2, § 836. It is also the rule in most jurisdictions that a presumption of undue influence is not raised, and the burden of proof is not shifted, by the mere fact that a beneficiary occupies a confidential or fiduciary relation as regards the testator. 68 C. J., Wills, § 451. There is no direct evidence that Frank G-. Barton exercised any undue influence over the testator nor do the facts and circumstances in evidence warrant the conclusion that he insidiously or secretly moulded the mind of the testator to suit his purposes. Moreover, Barton’s business relation with the testator was that of cotton broker and lending agency which would not ordinarily be considered confidential or fiduciary.
It is also argued that the testator made an unnatural disposition of his property in violation of appellant’s rights as his sole heir at law, which resulted from an insane delusion that testator’s daughter did not love him. We cannot agree with the proposition that it is unreasonable and unnatural for a husband and father to leave a large estate in trust for the benefit of his wife and daughter during their lives under the circumstances presented in this case. The net income of the trust estate for distribution to appellant and her mother for 1949 amounted to approximately $24,000 and the corpus of the estate may be encroached upon if necessary to meet their needs. Nor can we agree with the further contention that the evidence fails to disclose any basis for a belief by the testator that his daughter did not in fact love him. The delusion which operates to defeat a will is defined as follows in Taylor v. 87 Ark. 243, 112 S. W. 405: “Where one conceives something-extravagant, and believes it as a fact, when in reality it has no existence, but is purely a product of the imagination, and where such belief is so persistent and permanent that the one who entertains it cannot be convinced by any evidence or argument to the contrary, such a one is possessed of an insane delusion.” It was also said in that case that the mere existence of a delusion' is not sufficient to invalidate a will and that its connection with the will must be made manifest and shown to have influenced its provisions. The court further said: “A belief grounded on evidence, however slight, necessarily involves the exercise of the mental faculties of perception and reason; and where this is the case, no matter how imperfect the reasoning process may be, or how erroneous the conclusion reached, it is not an insane delusion.”
Although appellant testified that her love and affection for her father had never been disrupted, she admitted that she was from both parents for a period of 3½ years. She attributed this estrangement to a message sent her by her father, but the contents of such message were not revealed. Appellant was also estranged from her father during the last year of his life. Shortly after Mrs. Carruth suffered a stroke in July, 1948, appellant and her father had a quarrel which ended in a physical encounter and she thereafter refused to visit her father until shortly before his death. There was no gift for her father among those she sent to his household at Christmastime in 1948. Other incidents could be related which, with those named, amount to some evidence that testator’s statements as to his daughter’s affection toward him were not wholly false and imaginary. The evidence as a whole does not warrant the conclusion that the provisions of the will were prompted by an insane delusion.
The judgment is affirmed. | [
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W. Millwee, Justice.
This is a suit by ap-pellee, Alice Deal, to reform a deed to two lots in Hamburg, Arkansas, by striking therefrom the name of appellant, A. G. Deal, as joint grantee. A. G. Deal appeals from a decree granting the relief prayed.
The parties formerly lived as husband and wife at Hamburg, Arkansas. Appellee negotiated the purchase of the lots in question from the widow and heirs of C. W. Taylor, deceased, who executed and delivered their deed to appellee, as sole grantee, on February 17, 1942. Ap-pellee made a cash payment of $150 on the purchase price and executed two lien notes of $175 each payable in one and two years, respectively, for the balance of the purchase price.
Appellee testified tliat at tlie time of the purchase appellant had been gone from home about a year during which time he sent her two checks of $10 each; that she supported herself and their minor children by various jobs, supplemented by aid from the State Welfare Department and certain charitable organizations. She received the $150 which she paid on the purchase of the home from her grandfather’s estate. The last payment on the two purchase money notes was made by appellee on December 2,1942, and she also testified that the notes were paid wholly from her separate earnings.
Appellant, who had been employed in Louisiana, returned to Hamburg in the summer of 1942. On January 18, 1943, the deed of February 17, 1942, was changed by adding the words “and A. G. Deal” after appellee’s name wherever it appeared in the deed, and on the same date the altered deed was placed of record.
On January 16, 1948, appellee filed suit for divorce against appellant in the Ashley Chancery Court on the ground of general indignities. The complaint alleged that the parties were ‘ ‘ owners of real and personal property, and that they have made an agreement as to the disposition of said property, which should be approved by the Court”. In response to the complaint in the divorce action, appellant filed a pleading styled “Waiver, Answer & Agreement” also dated January 16, 1948, which contains a recital as follows: “Plaintiff is to have the use of the house and household furniture so long as she conducts herself in a proper manner and so long as she is unmarried, but if she should remarry, or if she should start conducting herself in a manner unbecoming to a lady and a mother, in such a manner that she is placing her reputation in question, then defendant is to take immediate possession of the house, furniture, and children. ’ ’
On March 24, 1948, a decree was entered granting appellee a divorce, custody of their seven minor children and support money' for the children of not less than $50 per month. The decree also provided that each party should “have absolutely” certain specified items of per sonal property. The possession and use of the home and furniture were awarded to appellee as set out in the agreement, supra.
Appellant subsequently remarried and the instant suit was brought by appellee on September 23,1950. She alleged in her complaint and testified that appellant forced her to have his name added to the deed in January, 1943, against her will and by threatening her life if she refused. She also related other acts of mistreatment and abuse at the hands of appellant about the time the deed was altered.
Appellant alleged in his answer that appellee voluntarily altered the deed and by such action and her failure to assert her claim in the 1948 divorce action she was estopped from claiming absolute title to the property. He also alleged and testified that the lots were bought under their agreement to purchase jointly; that he was working in Louisiana at the time and left the details of the purchase to appellee who had the deed’ made to herself as sole grantee without his knowledge or consent; that while working in Louisiana he sent part of his wages to appellee which she used to support herself and their children and to pay the two purchase money notes; that in January, 1943, he discovered that his name was not in the deed and discussed the matter with ap-pellee who stated that his name had been omitted by mistake; and that she voluntarily had his name added as joint grantee/
W. C. Woods testified that he worked with appellant in Louisiana for about eight months in 1942 and issued his personal checks to appellant at different times so the latter could send money to appellee. He estimated that such checks totaled more than $200.
The cashier of the bank where the two purchase money notes executed by appellee were paid testified that appellee made all the payments and that none were made by checks of the appellant.
Thus the evidence is in sharp dispute as to whether appellee voluntarily altered the deed and as to whether appellant paid any part of the purchase price. Appellee stated that she paid all taxes and insurance on the property except for one year, while appellant stated that all taxes and insurance were paid by him. No tax receipts were introduced. In January, 1948, appellee also paid a Hamburg- bank $77 which represented the balance due on a note for $300 borrowed by appellant and to secure the payment of which the property in controversy had been mortgaged. She also made extensive repairs to the property costing more than $700, part of which had been paid by her daughter and a balance of $300 still owing to FHA at the time of the trial was being paid by a, son.
The chancellor found that the legal effect of the answer of appellant was to allege a trust in his favor arising at the time of the purchase from their agreement to purchase the property jointly and his payment of a part of the purchase money. We agree with the court’s further finding that appellant failed to establish such trust by that clear, cogent and convincing testimony required in such cases. Appellant paid no purchase money either at the time of or previous to the purchase, and the deed, notes and attendant circumstances tend to support appellee’s contention that she paid the entire purchase price.
The chancellor also found that appellee was not estopped to deny appellant’s joint interest in the property by alteration of the deed.
Appellant earnestly insists that appellee failed to sustain her claim of duress in the alteration of the deed; that her claim of absolute title to the property was disposed of, or should have been adjudicated, in the 1948 divorce suit; and that by her conduct and delay she is estopped from contesting appellant’s interest as joint grantee in the deed. In support of these contentions appellant relies on the cases of Simmons v. Simmons, 203 Ark. 566, 158 S. W. 2d 42, and Page v. Woodson, 211 Ark. 289, 200 S. W. 2d 768. In the Simmons case the husband, after delivery of a deed to him as sole grantee, voluntarily and without the knowledge or connivance of his wife, changed the deed by adding her name as joint grantee. It was also shown that it was his intent to include her name in the deed at the time it was executed and that the consideration was paid from community funds. After his death intestate, the husband’s heirs brought suit against the widow to cancel her name from the deed. In holding that the heirs were estopped, we said: “The alteration of the deed here in question did not have the effect of destroying the conveyance or to revest the title in the grantor. As we said in Faulkner v. Feasel, 113 Ark. 289, 168 S. W. 568: ‘It is undisputed that when the deed was acknowledged it was a valid conveyance of the land in controversy, and if it was delivered it conveyed the title to the land there described, and these subsequent interlineations (the proof does not show by whom made) did not operate to defeat the conveyance. ’
“We do not hold that the deed here in question had the effect of conveying the title to appellant by reason of the alteration. On the contrary, the title to the land there described vested in him, but his act in altering the instrument by inserting her name as a joint grantee estopped him and his heirs, appellees, from contesting her rights as the survivor.”
Thus, in that case there was no evidence of duress, or connivance, on the part of the wife in the voluntary alteration of the deed by the husband. His intervening death resulted in the loss of his testimony and changed conditions which are not present in the instant case.
In Page v. Woodson, supra, a widow attempted to set aside a divorce decree and property settlement after the death of her former husband on the grounds of duress and fraud, and we held that the evidence was insufficient to sustain the charges; also that the widow was barred by laches. In that case the property rights of the parties were fully adjudicated in the divorce proceeding and we pointed out that the husband, being dead, could no longer speak for himself. In the case at bar appellee is not attempting to set aside the 1948 divorce decree which did not adjudicate title to the property in controversy. The lots were not described in either the pleadings or the decree entered in the divorce action and the effect of the decree was merely to award possession and nse of the property temporarily to appellee.
In Hix v. Sun Insurance Co., 94 Ark. 485, S. W. 737, the wife was awarded possession of the family home under a divorce decree very similar to the 1948 decree ■involved here. The court held that such decree did ,not preclude her former husband from subsequently asserting his rights to the property as sole owner. In Johnson v. Swanson, 209 Ark. 144, 189 S. W. 2d 803, we said: “There are numerous decisions holding that, when property rights are not settled in a divorce action, they may be adjusted in a subsequent, separate proceeding. Some of them are: Judd v. Judd, 192 Mich. 198, 158 N. W. 948, 160 N. W. 548; Hicks v. Hicks, 69 Wash. 627, 125 P. 945; Coats v. Coats, 160 Cal. 671, 118 P. 441, 36 L. R. A., N. S. 844; Gray v. Thomas, 83 Tex. 246, 18 S. W. 721; Thomas v. Thomas, 27 Okla. 784, 109 P. 825, 113 Pac. 1058, 35 L. R. A., N. S. 124, Ann. Cas. 1912C, 713. The term ‘property rights, ’ as here used, does not, of course, include the interest, by way of inchoate dower, possessed by the wife in property of her husband, which interest must be determined in the divorce proceeding and is concluded by the decree rendered therein. Taylor v. Taylor, 153 Ark. 206, 240 S. W. 6.”
Equitable estoppel and laches have been defined in numerous cases. In Geren v. Caldarera, 99 Ark. 260, 138 S. W. 335, it is said: “Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.” We have also held that the party asserting estoppel must have changed his position or acted to his ■injury in reliance upon the representation or conduct constituting the estoppel. Thompson v. Wilhite, 131 Ark. 77, 198 S. W. 271; Union Indemnity Co. v. Benton County Lumber Co., 179 Ark. 752, 18 S. W. 2d 327.
We have frequently approved the following statement in 5 Pomeroy, Equity Jurisprudence, (3rd Ed.) § 21: “Laches, in legal significance, is not mere delay, but delay that works disadvantage to another. So long as parties are in the same condition, it matters little whether he presses a right promptly or slowly within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has in good faith become so changed that he can not be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. The disadvantage may come from the loss of evidence, change of title, intervention of equities, and other causes; but when a court sees negligence on one side, and injury therefrom on the other, it is a ground for denial of relief.” See, Tatum v. Arkansas Lumber Co., 103 Ark. 251, 146 S. W. 135.
The facts and circumstances here support the chancellor’s conclusion that appellee was not estopped to maintain the instant suit. There was no adjudication of title to the property in the 1948 divorce suit. Appellant has not been placed at a disadvantage nor has there been any change for the worse in his position by reason of appellee’s failure to sooner assert her claim. There has been no change of title, loss of evidence or intervening equities which require the application of the equitable principles of estoppel and laches.
The decree is affirmed.
Ward, J., dissents. | [
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G-eoege Rose Smith, J.
The appellee, as the plaintiff below, brought this suit to recover the balance due upon a conditional sales contract by which the plaintiff had sold to the defendant a Diesel motor to be used as the power unit for the defendant’s sawmill. The defendant admits his failure to pay the purchase price but contends that the contract should be canceled because the plaintiff falsely represented the motor to be in perfect condition, when in fact it has never performed satisfactorily. The trial court submitted the question to the jury, which returned a verdict for the plaintiff.
For reversal the appellant assigns a number of asserted -errors in the giving and refusal of instructions. We find it unnecessary to pass upon these assignments. The evidence warranted an instructed verdict for the plaintiff; hence the defendant could not have been prejudiced by any instructions that were given or refused.
The defendant, by conceding the execution of the contract and his default in its performance, assumed the burden of proving his defense to the plaintiff’s prima facie case. Even when we give the defendant the benefit of every doubt there was still no issue for the jury’s determination.
Hignight, the defendant, admits that he signed the contract of purchase after having had the motor in his possession during a trial period of several weeks. Although he says that during these weeks he tested the machine only once, for about forty minutes, he may be charged with the knowledge he might have acquired in the course of his ample opportunity to test the motor. Spencer Lbr. Co. v. Dover, 99 Ark. 488, 138 S. W. 985.
The written contract of sale provides that it is made without any express or implied warranties. In view of this provision it was incumbent upon the defendant to show that his assent to the contract was induced by fraud. Not only is there no of fraud; even if there were such testimony the defendant has waived his right to complain. His proof is that the motor did not perform properly for even a single day, yet he kept the machine and continued to make payments on the purchase price for eight.months after signing the contract. His only reason for this delay is that it was not until eight months after his purchase that he noticed water seeping from the engine and concluded that the block was broken. But Nathan Crawley, his employee whose duty it was to operate and repair the motor, testified that he noticed this seepage on the day the motor was delivered, or the next day. The defendant is charged with knowledge acquired by his employee in the course of his duties and in circumstances in which the knowledge should have been reported to the master. Brown & Co. v. Bennett, 122 Ark. 570, 184 S. W. 35; Rest., Agency, § 275. On the whole, this case cannot be distinguished from Pate v. J. S. McWilliams Auto Co., 193 Ark. 620, 101 S. W. 2d 794, where we upheld the trial court’s instructed verdict for the plaintiff.
Affirmed. | [
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Holt, J.
This i» a suit on two fire insurance policies. Appellees, Mildred Harris, her husband, Rufus Harris, and Lula Brice, owned jointly property in the town of Keo, Arkansas, on which two residences were located. On March 21, 1950, appellant issued to Mildred Harris a fire insurance policy on one of the dwellings and on the same date, a separate policy to Lula Brice on the other dwelling. Both houses were destroyed by fire on April 14, 1950, and separate suits were brought by the owners against appellant. The insurance company defended in each case on the sole ground that since title to the property was held jointly by the two appellees and another, there was a violation of the following provision in each policy: 11 The Company shall not be liable . . . if the interest of the insured be or become other than the entire, unconditional and unencumbered sole ownership of the property,” and there could be no recovery on their policies.
The causes were consolidated for trial and at the close of all the testimony the court instructed a verdict for each plaintiff.
On this appeal, appellant argues that the court’s action was an invasion of the jury’s province. We do not agree.
While the rule is well settled, that a sole ownership clause in a fire insurance policy is valid and voids the contract if the ownership is otherwise (Franklin Fire Insurance Company v. Holmes, 188 Ark. 1053, 69 S. W. 2d 281), it is equally well settled that this clause may be waived by the insurer as when it has been informed of the nature of the title (State Mutual Insurance Co. v. Latourette, 71 Ark. 242, 74 S. W. 300), and when it requests proof of loss with of violation of the sole ownership provision.
Here, the plaintiffs testified positively that they informed appellant’s agent of their joint ownership before the policies were issued and that proofs of loss were made at appellant’s request and delivered to it.
Appellee, Lula Brice, testified relative to proof of loss: “Q. When did the agent come down to take a statement regarding the proof of loss? A. I wasn’t there. Q. When did he come down there? A. Some time after the fire. Q. You weren’t at home when the agent came the first time? A. No, sir. Q. Did he come hack again and bring some papers to be signed? A. Yes, sir. Q. Did your daughter-in-law sign some papers for you at that time? A. That was after the fire. Q. Yes, sir. Q. What .papers did she sign? A. I don’t know.”
Appellee, Mildred Harris, testified: “Q. After the house burned did you notify the Insurance Company? A. Yes, sir. Q. Did they take proof of loss of your house? A. Yes, sir. Q. What happened? A. The agent came out. Q. Did you furnish him with the proof of loss? A. Yes, sir. Q. Has the Insurance Company paid you anything by reason of your loss you sustained? A. No, sir. Q. You have received nothing from the Company? A. No, sir. * * * Q. After the fire, did an agent of the company come out and bring some papers for you to sign? A. I signed one for my mother-in-law (Lula Brice) and one for myself. Q.. The agent brought the papers out to you? A. Yes, sir. CROSS-EXAMINATION: BY MR. MARTIN: Q. Are these the papers you signed (handing witness documents) ? A. Yes, sir. If it please the court, we would like to introduce them. THE COURT: Let them he in- troducecl and made a part of tlie record. (Said documents are hereby introduced, for identification, are marked exhibits ‘ C’ and ‘D’ and are next following in the record.) EEDIEECT EXAMINATION: BY ME. SEXTON : Q. Who filled out these papers ? A. The man did. He done everything but where by name is. Q. Where you signed the papers. A. Yes, sir. Q. When the proof of loss was taken, did this man tell you that the company would pay you $900? A. Yes, sir, Q. I see that he didn’t even fill out the full amount. A. He said that I would get one third of it. Q. He filled this out himself and said that he wasn’t going to pay you but this amount? A. Yes, sir. Q. He didn’t fill it out for the full amount, still you suffered a total loss. A. Yes, sir. Q. When you signed this paper, you thought that he was going to pay you the full amount? A. Yes, sir.”
Standing alone, the testimony of appellees, being-interested parties, could not be considered as undisputed and therefore would not be sufficient to warrant the action of the court.
The record reflects, however, that their testimony does not stand alone. It is undisputed that appellant asked for, procured, and introduced in evidence proofs of loss from appellees and put them to the trouble and expense of. perfecting these proofs. Just what these proofs of loss, prepared and made out by appellant’s agent, contained, we do not know for the reason that though introduced in evidence and were before the trial court, they were not brought forward in the transcript. We must assume, therefore, that they contained matter or admissions against appellant that constituted a waiver of the absolute ownership provision and warranted the action of the court in directing a verdict for appellees, in the circumstances. It is a well settled rule that where the record on appeal does not contain all the evidence adduced at the trial, this court indulges the presumption that the evidence was sufficient to sustain the judgment. See cases listed in West Ark. Digest, Appeal and Error, § 907 (4).
This court held in German Insurance Co. v. Gibson, 53 Ark. 494, 14 S. W. 672: (Headnote 1) "Insurance of forfeiture. Forfeitures are,not favored in law; and any agreement, declaration or course of action on the part of an insurance company, which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by conformity on his part, will estop the company from insisting upon the forfeiture.” (Headnote 2) “If an insurance company, after it learns through its adjuster that the party insured has made misrepresentations in his application, asks for and accepts proof of loss, it waives a forfeiture for such misrepresentations,” and in the body of the opinion, it was said: “ ‘Forfeitures are not favored in the law; and . . . courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so on which the party has relied and acted. Any agreement, declaration, or course of action, on the part of an insurance company, which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture,' though it might be claimed under the express letter of the contract. The company is thereby estopped from enforcing the forfeiture.’ . . .
“Under this state of facts the company was bound by the knowledge of the agent.' . . . with a full knowledge of all the acts constituting the forfeiture claimed in the trial, put the plaintiff to the inconvenience, trouble and expense of perfecting his proof of loss. If the defense of forfeiture was good, all this trouble and expense were wholly unnecessary. A reliance on the alleged forfeiture was entirely inconsistent with such a course of conduct. By that conduct the company waived the forfeiture, and estopped itself from setting it up as a defense. . . .
“There was evidence tending to prove that the forfeiture for false representations was waived when plaintiff was permitted and encouraged to submit proofs, without claim of forfeiture. This waiver could not wards be retracted,” and in Mutual Relief Association v. Weatherly, 172 Ark. 991, 291 S. W. 74, we said: “ ‘And so it has become a well-established rule that, where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be tó produce it, and, without satisfactory explanation, he fails to do so, the jury may draw an inference that it would he unfavorable to him. ’ ’ ’
“Effect of failure to produce when in party’s power. The non-production of evidence clearly within the power of a party, creates a strong presumption that if produced, it would be ag’ainst him.” Miller v. Jones, Adm’r., 32 Ark. 337 (Headnote 3).
Affirmed.
Mr. Justice George Rose Smith dissents. | [
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Griffin Smith, Chief Justice.
The appeal challenges correctness of an order of St. Francis Probate Court directing National Bank of Eastern Arkansas (as executor under the will of James ft. Young) to mortgage estate lands for debt-paying purposes. This brings to us for construction §§ 127 and 140 of the Probate Code, as amended by § 11 (a) of Act 255 of 1951.
The appellee is Young’s widow. She is also the principal beneficiary under the will. Her petition was filed pursuant to the provisions of § 129 of the Code, Ark. Stats., § 62-2706. Following the allegation of factual matters she prayed that the executor be directed to show cause why it should not mortgage the realty.
In its response the executor admitted accuracy of the petition’s recitals, but questioned the court’s power to authorize the mortgage. All essentials bearing upon the proposed transaction were developed in a hearing where the evidence was preserved. As reflected by the record and bill of exceptions the facts are substantially as follows:
Young died in April, 1950. At that time he owned approximately 600 acres of valuable farm lands in St. Francis county. Letters testamentary were issued to appellant April 8, 1950. The bank is still the duly qualified and acting executor. Prior to 1950 Young and his wife had mortgaged this acreage to Federal Land Bank of St. Louis. Otherwise the property was unencumbered when Young died. Installment payments on the Land Bank loan are in default and the mortgage is subject to foreclosure. The debt balance was approximately $37,000 on March 1 of this year. This creditor has not filed a claim against the estate, nor have foreclosure proceedings been brought.
Since appointment of the executor unsecured claims of about $19,500 have been filed and regularly allowed and the statutory limitation within which demands must be asserted has expired. The decedent did not own any personal property other than personal effects and household goods of relatively insignificant value. All of the unsecured claims are past-due and creditors are demanding payment.
Prudential Insurance Company of America has agreed with the executor to advance $58,000 on security of the land. Amortized payments would extend through a 15-year period with interest at 4½% per annum. Proceeds would be used exclusively (a) to pay the unsecured claims, and (b) to discharge the Federal Land Bank’s debt. As a condition precedent to making the loan, Prudential has required that an insurance policy be delivered to it as a guarantee that the mortgage is a valid first lien on the lands. Appellant has applied to a title insurance company for the requisite policy.
of the Proposed Probate Court had power to authorize the mortgage. Pertinent parts of § 127 of the Probate Code, Ark. Stats., § 62-2704, are as follows:
(a) Real or personal property belonging to an estate may be sold, mortgaged, leased or exchanged under court order when necessary (1) for the payment of claims, (2) for the payment of a legacy given by the will of the decedent, (3) for the preservation or protection of assets of the estate, (4) for making distribution of the estate or any part thereof, or (5) for any purpose in the best interest of the estate.
It is properly conceded that under § 127 (a-1) the probate court has power to direct the personal repre sentative to execute realty mortgages for the payment of claims. In the case at bar such claims- aggregating $19,500 are overdue. Each party to the litigation thinks it unlikely that sufficient funds to meet these claims could be procured through a second mortgage. They also agree that if a loan is appropriate it must be in an amount sufficient to discharge all of the obligations.
Section 127 (a) of the Probate Code does not expressly provide that property of the estate may be mortgaged to pay off existing liens. Prior to the passage of Act 195 of 1927 probate courts were without power to authorize a personal representative to mortgage the property of the estate to pay liens. The Act of 1927, however, was passed for the purpose of conferring that power on the court. Reed v. Futrall, Receiver, 195 Ark. 1044, 115 S. W. 2d 542. Act 195 of 1927 was amended by Act 22 of 1935, but the amendment relates to mortgages on homesteads of minors and is not here material.
Before enactment of the Probate Code in 1949 an executor could have been authorized by the probate court to execute a mortgage in the circumstances presented by this record. It seems illogical to now hold that it was the intention of the Legislature to withdraw the power to mortgage after such power had clearly existed for 22 years, and to assume that this was done on the sole ground that the power was not expressly incorporated in § 127 (a) of the Code. On the contrary, it clearly appears from § 127 (a) and related provisions of the Code that it was the legislative intent to extend, rather than restrict, the power of the probate court to authorize execution of mortgages on the property of the estate. The Legislature has placed the matter very largely within the sound discretion of probate courts. No doubt this is the intention of the very able committee having charge of the drafting of the Code.
Appellee has argued that the power of the probate court to authorize a mortgage to pay existing liens amounts to a mortgage “for the preservation or protection of the assets of the “estate” as provided in § 127 (a-3). We find, however, that it is not necessary to pass on that construction in this case because the order here reviewed is clearly authorized by § 127 (a-5) of the Code.
After setting out four purposes for which a mortgage may be of which is for the payment of is then enacted, § 127 (a-5), that the court may authorize a mortgage for any other purpose in the best interest of the estate. The language is broad, and no doubt was intentionally made so to vest discretion in the supervising judicial tribunal. If this assumption is correct, our review in circumstances involving an order similar to the one under examination here, is to determine whether the court abused its discretion. Here the Probate Judge made the following findings:
“The refinancing of the indebtedness of the estate by a long-term loan, the payment of which is secured by a first lien on the real estate belonging to the estate, is necessary (1) for the payment of claims against the estate, (2) for the preservation and protection of the assets of the estate by payment of the indebtedness due the Federal Land Bank, (3) for making distribution of the estate; and (4) to permit the payment of the debts of the estate upon an annual amortization basis at a low rate of interest which will be in the best interest of the estate. ’ ’
The testimony amply supports the court’s finding that a provident policy of refinancing was proposed and that Prudential’s proposed mortgage, when regularly executed, would constitute a valid first lien on the realty.
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Ed. P. McFaddiN, Justice.
This, case involves the issue of usury in connection with a sale.
Appellant, Clyde Hare, purchased a used truck from Earl Meeks, a second-hand automobile dealer in Arka-delphia, for $1,750. After making a cash payment of $100, and trading in a car for a credit of $500, the balance due by Hare to Meeks was $1,150. To handle this balance, Piare executed to Meeks a title retaining contract and note for $1,439.13. The note and contract were on forms supplied Meeks by appellée, General Contract Purchase Corporation; and Meeks and Hare understood that the said $1,150 was increased $289.14 to take care of insurance, interest and service charges on the delayed payments; and that the note for $1,439.13 was payable $68.53 per month for twenty-one months.
A day or two after the completion of the trade between Meeks and Hare, Meeks transferred the title retaining contract and note to the General Contract Purchase Corporation, without recourse, and received $1,150. Hare made sis of the monthly payments to General Contract Purchase Corporation, and then filed suit alleging usury, and claiming the relief stated in § 68-609 et seq. Ark. Stats. The General Contract Purchase Corporation, for its defense, claimed:
I. That General Contract Purchase Corporation was a bona fide purchaser, for value, without notice, and was, therefore, a holder in due course of the Hare note, and that the claim of usury was unavailable against such holder.
II. That the contract price of the truck was increased from $1,750 for a cash sale, to $2,039.13, because it was a credit sale.
III. That the difference between the face of the note ($1,439.13) and the balance of the truck trade ($1,150) represented two items: one being $148.24, which was the amount of insurance premium, and the other being $140.89, which was not only for interest but for service charge; and that such service charge has been approved by this Court.
The Chancery Court refused Hare’s plea of usury, and entered a decree for General Contract Purchase Corporation; and from that decree, Hare has appealed. We discuss the defenses of General Contract Purchase Corporation in the order listed.
I. Bona Fide Holder. This defense is Avithout merit. If the note be in fact usurious, then transferring it to a bona fide purchaser would not improve the situation. Our'Constitution (Art. 19, § 13) provides:
“All contracts for a greater rate of interest than ten per cent per annum shall be void, as to principal and interest, and the General Assembly shall prohibit the s$me by law; . . .”
In the case of German Bank v. DeShon, 41 Ark. 331, this Court held that a note usurious in the hands of the payee is also usurious in the hands of a subsequent purchaser, though he purchased in good faith, before maturity of the note, and without any notice of the usury; and that the reason for such holding is that the Constitution makes a usurious note void, and therefore, it can gain no validity by circulation. The case of German Bank v. DeShon is an outstanding decision in our reports, and has been consistently followed. Under that we now defense of bona fide holder, for value, without notice, is without merit against the plea of usury.
II. Increased Selling Brice Because of Credit Sale. Appellee says that the price of the truck was increased because the truck was sold on credit and appellee claims that there are many cases from this Court, and from other jurisdictions, which permit a “credit price”, as distinguished from a cash price. The cases cited by appellee sustain the general theory, but even the credit price may be attacked as a cloak for usury.
But the facts in tbe case at bar disclose that there was never any “credit price” actually stated. We have before us the original Conditional Sales Contract between Hare and Meeks, and it recites:
“Total cash price of automobile and all extra equipment .$1750.00
Cash on or before delivery .....$100.00
Total down payment. 600.00
Time Price Differential (Including any Insurance), . 289.13
Which said balance of time price is payable in 21 consecutive equal monthly installments of $68.53 each.”
On the reverse side of the original contract, there is the assignment from Meeks to General Contract Purchase Corporation and also an affidavit, duly acknowledged by Hare and Meeks, which, > omitting signatures and acknowledgment, reads:
“The undersigned Purchaser and Seller of the within motor vehicle hereby swear and affirm that the within Conditional Sales Contract is bona fide, given to secure an unpaid just debt of $1150.00 due from Purchaser to Seller . . .”
From the foregoing, and from other evidence in the record, it is clearly established that the truck was priced at $1,750, and that there was no “credit price”, as distinguished from the $1,750. There is no fact in this record which makes applicable the rule of a bona fide credit price. Therefore, we need not discuss credit price as a cloak for usury any further than is discussed in the subsequent topics of this opinion.
III. Interest and Service Charge. Thus, we come to appellee’s final defense, which, as previously stated, is that the $140.89 was not only for interest, but for a service charge in connection Avith the sale of the truck. The balance on the truck was $1,150, and the insurance premium was $148.24, so the debt was $1,298.24. But the note was for $1,439.13. The question is whether such interest and service charge, which when added together exceed 10%, make the transaction usurious. It is clear:
(a) that Hare and Meeks agreed that $289.13 would be added to the $1,150, in order to cover insurance, interest, and carrying charges; (b) that the parties thought the $289.13 listed as “time price differential (including any insurance)”, was a perfectly legal addition, and; (c) that it was not until months after the trade was made and after Hare claimed usury, that it was ascertained that the insurance premium was $148.24, and the interest and other charges were $140.89.
The evidence fails to show that Meeks acted as the agent of G-eneral Contract Purchase Corporation in this case, so there was a sale by Meeks to Hare, and the transfer of the note and papers by Meeks to General Contract Purchase Corporation. The question is whether such “time price differential” is legally permissible against the plea of usury even when there is a sale on which to predicate such increased price.
In a long line of cases, we have permitted the seller, under one guise or another, to do exactly what was done in the case at bar, and we have permitted the transferee of the paper to recover in just such a situation. Some of such cases are: Garst v. General Contract Purchase Corp., 211 Ark. 526, 201 S. W. 2d 757; Harper v. Futrell, 204 Ark. 822, 164 S. W. 2d 995, 143 A. L. R. 235; General Contract Purchase Corp. v. Holland, 196 Ark. 675, 119 S. W. 2d 535; Cheairs v. McDermott Motor Co., 175 Ark. 1126, 2 S. W. 2d 1111; Standard Motors v. Mitchell, 173 Ark. 875, 298 S. W. 1026, 57 A. L. R. 877; and Smith v. Kaufman, 145 Ark. 548, 224 S. W. 978.
In the case at bar, the parties dealt on the strength of the aforesaid holdings, which have become a rule of property, and we must not overrule these cases retroactively.
IY. Caveat. But the time has come ivhen we must reexamine these holdings, so we now give the public a caveat that the effect of transactions, such as in the case at bar, may impinge on the constitutional mandate against usury, and transactions entered into after this appeal becomes final, may be subjected to the taint of usury with the aforementioned decisions affording no protection. Illustrative of our earlier holdings in this regard, we call attention to two cases. In Ford v. Hancock, 36 Ark. 248, there had been a credit sale of chattels, with a note and mortgage to secure the seller. The buyer pleaded usury in the sale, and that plea was successful. This Court said:
‘ ‘ It is not usury for one who sells a piece of property on credit, to contract for a higher price than he would have sold it at for cash. If the intention be, in fact, to sell on credit, he has the right to fix a price greater than the cash price, with legal interest added; but if the sale be really made on a cash estimate, and time be given to pay the same, and an amount is assumed to be paid greater than the cash price, with legal interest, would amount to, this is an agreement for forbearance that is usurious. Therefore, where the intention is not apparent, it is a question for the jury to determine, whether it was a bona fide credit sale, or a device to cover usury. Tyler on Usury, 92.”
Likewise, in Tillar v. Cleveland, 47 Ark. 287, 1 S. W. 516, the Court used pertinent language. Cleveland sought to borrow $270 from Tillar in order to buy some property. But Tillar insisted on taking title to the property and then selling it to Cleveland for $360. This Court held that Tillar had used the deed and contract of sale to accomplish usury; and the language of Chief Justice Marshall was quoted with approval:
“Yet it is apparent that if giving this form to the contract will afford a cover which conceals it from judicial investigation, the statute would become a dead letter. Courts, therefore, perceived the necessity for disregarding the form, and examining into the real nature, of the transaction. If that be in fact a loan, no shift or device will protect it”
The way the Finance Company operated in the case at bar is in many respects similar to the way Tillar operated in the reported case. Our cases disclose that finance companies have seized upon the “credit price rule” as a means of obtaining more than a 10% return upon what is in form a sale, but is in substance, a loan,. It is obvious that if a prospective purchaser of a car, radio, refrigerator, etc., should borrow $1,000 directly from a finance company, then buy the article with the money and execute a one-year note to the finance company for $1,200, such transaction would be usurious. But the finance companies are accomplishing the same result by having dealers in cars, radios, refrigerators, etc., handle the sale in the first instance, and under the guise of a credit price, add an excessive charge which inures to the finance company, because the dealer is reasonably confident in advance of the sale that he can transfer the papers to the finance, company for his own cash price. Thus, the finance company is getting the benefit of the increase. Nor is the increase purely for credit risk, because the car, radio, refrigerator, etc., is usually insured against normal hazards.
The result is that, by the simple expedient of providing forms and a rating book to the seller, and buying the conditional sales contract and note from him, the finance companies are receiving a usurious rate of interest. We cannot permit the constitutional mandate
What we are trying to do is, to keep the spirit of the constitutional mandate against usury ¿breast of present day commercial transactions. We give this caveat prospectively, so as not to entrench on property rights acquired by reason of our previous opinions, and this caveat applies to all transactions entered into after this opinion becomes final.
The Chief Justice concurs in part and dissents in part.
Recent cases of this Court involving- somewhat related phases of usury are Schuck v. Murdock Acceptance Corp., ante, p. 56, 247 S. W. 2d 1; Winston v. Personal Finance Co. (Case No. 9760), ante, p. 580, 249 S. W. 2d 315, opinion delivered May 19, 1952; Strickler v. State Auto Finance Co. (Case No. 9791), ante, p. 565, 249 S. W. 2d 307, opinion delivered May 19, 1952. Annotations involving usury are contained in 91 A. L. R. 1105 and 143 A. L. R. 238.
Some of our cases so holding are: Brakefield v. Halpern, 55 Ark. 265, 15 S. W. 190; Blake v. Askew, 112 Ark. 514, 166 S. W. 965; and Smith v. Kaufman, 145 Ark. 548, 224 S. W. 978.
Cases so holding are collected in Annotations in 48 A. L. R. 1442 and 57 A. L. R. 880. See, also, 55 Am. Jur. 388.
Ford v. Hancock, 36 Ark. 248; Grider v. Driver, 46 Ark. 50; Tillar v. Cleveland, 47 Ark. 287, 1 S. W. 516; Ellenbogen v. Griffey, 55 Ark. 268, 18 S. W. 126. See, also, 55 Am. Jur. 341 el seq. and Annotation in Í04 A. L. R. 245.
Here is the calculation which shows the interest rate to he 11.5%, if monthly payments of $68.53 had been made as contracted:
Effective Interest Rate 11.5%
In 85 A. L. R. 262, there is an Annotation on overruling cases with only prospective effect.
Again in Porter v. Porter, 209 Ark. 371, 190 S. W. 2d 440, we stated that our previous holdings on residence in divorce cases had become “controversial”; and Casson v. Casson, 211 Ark. 582, 201 S. W. 2d 585, was the result. | [
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Ed. F. McFaddiN, Justice.
This is a railroad crossing case. Appellee, Peters, brought action and recovered judgment for $3,000 for property damage and personal injuries sustained by him in a railroad crossing collision between his automobile and a switching train of appellant. To reverse the judgment, appellant prosecutes this appeal, and presents the questions now to be discussed.
I. Sufficiency Of The Evidence. The appellant insists that a directed verdict should have been given for the railroad company, undisputed evidence shows that there was no negligence on the part of the appellant’s employees. It is uncon-tradicted : (a) that the collision occurred at Fourth Street crossing, in the City of Van Burén; (b) that there are two railroad tracks at this crossing, one being a main track, and the other a switch track; and (c) that the train involved was using the switch track. Plaintiff testified that some time after 8:00 P. M. on the night of January 12th, he was driving on Fourth Street in his automobile and approached the crossing. We quote his testimony:
“I looked up the railway track, and I didn’t see anything. It was dark and I couldn’t see anything. I didn’t see.any lights of any description. I looked back down into the yard before I got to the crossing, to the right, toward the roundhouse, and I saw a man with a lantern down in to the yards, not too far, he was a pretty good piece, I don’t know just how far, but I saw him; but just before I started across the railroad track I looked back to my left, just started to look back to my left, to cross the track, which a man would look back straight to go across, and I just glanced back to my left and I saw the corner of a box car and it hit me just like that (witness snaps fingers). Then when this ear hit me it threw me out, and when I came to myself I was on my way to the hospital. ’ ’
The defendant’s witnesses testified that the plaintiff was not hit by the end of a* boxcar being switched over the track, as plaintiff claimed. Instead, defendant’s witnesses testified that plaintiff drove his automobile into the fourth car in a string of boxcars being switched over the crossing. There was thus a sharply disputed question of fact as to whether the plaintiff’s automobile was struck by the front of the switching train, in which event the plaintiff might have a chance to recover, or whether he drove his automobile into a boxcar already occupying the crossing, in which event the plaintiff could not recover. Tinder our system of jurisprudence, it is the function of the jury to settle disputed questions of fact in such a case as this one. The trial court was correct in submitting the fact question to the jury.
II. Instructions. The trial court submitted the case to the jury on 27 instructions. Of these, 17 were given by the court on its own motion, and 10 were given at the request of the defendant. Many of these instructions are not abstracted in the briefs. In such a situation, the rule governing this Court on appeal is stated on page 146 of C. R. Stevenson’s 1948 Edition of Supreme Court Procedure :
“All instructions must be set out in the abstract and when not set out, errors will not be considered unless the instructions are so inherently defective that they could not be cured by others. Morris v. Raymond, 132 Ark. 449, 201 S. W. 116; Harrelson v. Eureka Springs Elec. Co., 121 Ark. 269, 181 S. W. 922; . . .
“Error of the court in refusing an instruction asked will not be considered where appellant’s abstract fails to set out the other instructions given by the court. St. L. I. M. & S. R. Co. v. Boyles, 78 Ark. 374, 95 S. W. 783; Keller v. Sawyer, 104 Ark. 375, 149 S. W. 334.”
The only assignment which appellant urges regarding instructions is one relating to the court’s Instruction No. 13. In that Instruction, the court submitted to the jury for decision the question of whether the statutory signals were given as required by § 73-716 Ark. Stats. Appellant says that all of the evidence “is to the effect that the signals were given.’.’
Even assuming we can examine this Instruction, in the absence of the abstracting of all the Instructions, nevertheless, we conclude there was no error by the court in giving this Instruction. The plaintiff testified that he was looking and listening, and that he heard no sound and saw no signal.
“Q. Could you see that crossing as you approached it on 4th Street?
“A. I could see that crossing.
“ Q. Was it occupied by any train ?
“A. It was not.
“Q. Was there any light on the end of that car?
‘ ‘ A. There was not a light.
“Q. Was there a flagman there at the crossing?
“A. There was not a flagman at the crossing.
“Q. Was the bell ringing or the whistle blowing?
“A. I heard no sound and could see no signals.”
Under the ruling of this Court in the case of Missouri Pacific v. Rogers, 206 Ark. 1052, 178 S. W. 2d 667, a case was made for the jury as to the signals, because in the cited case we said:
“This argument rests upon the theory that the testimony relating to the ringing of the bell is negative in its character, and, therefore, wholly lacking in evidentiary value. Many decisions of this Court may be found declaring the rule to be, that where a witness, in possession of his faculties of hearing, was so situated that he would have heard signals had they been given, testifies that he heard no such signals, such testimony cannot be classed as negative in its character. Such testimony is treated as being affirmative testimony, tending to establish the fact that such signals were in fact not given, and is entitled to such weight as the jury sees fit to give it. Fort Smith & Western Ry. Co. v. Messeck, 96 Ark. 243, 131 S. W. 686, 966; Chicago, Rock Island & Pacific Ry. Co. v. Thomas, 184 Ark. 457, 42 S. W. 2d 762 and cases therein cited; Missouri Pacific RR. Co. v. Rogers, 184 Ark. 725, 43 S. W. 2d 757, and cases therein cited.”
III. Excessive Verdict. Finally, appellant claims that the verdict awarded appellee is grossly excessive. Here is the appellant’s argument:
“Undoubtedly, he had some pain and suffering during the three weeks in bed, and perhaps some prior to his return to work, but since no permanent partial disability is shown, and since the damages shown by his temporary disability, including damage to his car, amounted only to $562.85, the remainder of the $3,000 verdict must have been awarded for pain and suffering. Appellant submits an award of that amount for pain and suffering is wholly unjustified in view of the evidence of the slight nature of the injuries, and that the verdict is grossly excessive and should be reduced. ’ ’
The verdict was for $3,000. The appellee was rendered temporarily unconscious by the collision. He was taken to a hospital in Fort Smith, where he remained for six days. Then he remained in bed at his home for three additional weeks. He lost a total of six weeks from his work and his earning record shows that he received from $40 to $60 per week. His hospital bill was $92.85; his doctor’s bill was $65; his medical bill was $30; his automobile was damaged or ruined at a loss of $135. The appellee testified that he suffered injuries to his head, back, left arm, and left knee; that his right arm was cut; that his left side “turned black,” as did his left arm; that he had severe headaches, continuing down to the date of the trial; and that the lower part of his back was hurt so that he could hardly stoop, and even at the time of the trial, he suffered severe pain in his back when he stooped over. From the evidence, we cannot say as a matter of law that the total verdict of $3,000 is grossly excessive.
The judgment in the case at bar is affirmed.
For recent cases involving verdicts claimed to be excessive, attention is called to Missouri Pacific v. Newton, 205 Ark. 353, 168 S. W. 2d 812; C. R. I. & P. Ry. Co. v. Caple, 207 Ark. 52, 179 S. W. 2d 151; Ozan Lumber Co. v. Tidwell, 210 942, 198 S. W. 2d 182; Missouri Pacific v. Diffee, 212 Ark. 55, 205 S. W. 2d 458; and East Texas Motor Freight v. Buck, 213 Ark. 630, 212 S. W. 2d 13. Also there are extensive and exhaustive Annotations, not only on the excessiveness of verdicts, but the inadequacy of verdicts, which Annotations are contained in 16 A. L. R. 2d 3, and 16 A. L. R. 2d 393. | [
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Ward, J.
Appellants were charged by information with an assault with intent to kill. The material part of the information reads, as follows:
“The said defendants on or about tbe 15th day of January, 1952, in Benton County, Arkansas, did unlawfully, willfully, feloniously, deliberately and with malice aforethought assault Bay Harrison with a deadly weapon, to-wit: An Iron Bod about one and one-half foot long, being then and there held in the hands of Jack Sharpen-steen, Sr., with the unlawful and felonious intent then and there to kill and murder the said Bay Harrison, against the peace and dignity of the State of Arkansas. ’ ’
On March 20, 1952, appellants were tried in circuit court on the above information and convicted by a jury of assault and battery.
Appellants prosecute this appeal on the sole ground that, under the former decisions of this court, they cannot be legally convicted of assault and battery under the information set out above. This is no doubt the law under our decisions and particularly as set forth in Jones v. State, 100 Ark. 195, 139 S. W. 1126, which has never been overruled in so far as we are informed. This rule however obtains only where the information fails, as here, to charge an actual battery was committed.
Begardless of the above pronouncement however, another question arises. Can appellants, under said information, be convicted of a simple assault? The answer is in the affirmative under the holding in the early case of Cameron v. State, 13 Ark. 712, which holding has been approved and never overruled by this court. The reason for this holding, as expressed in the decisions, is that the two offenses are of the same generic class. See Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304.
Under the above situation this court has the authority to nullify the conviction for a battery and affirm as to a simple assault. For this authority see Jones v. State, supra, and Wills v. State, 193 Ark. 182, 98 S. W. 2d 72.
In affirming a conviction for a simple assault, the question arises as to the amount of fine to he assessed. Appellants were fined $200 for assault and battery, which was the maximum amount prescribed by Ark. Stats. § 41-604. The maximum fine prescribed for a simple assault is $100 under § 41-602. Although appellants could not, as stated above, be convicted of a battery yet evidence of a battery is always admissible in a prosecution for a simple assault to be considered by the jury in fixing the amount of fine to be assessed. The evidence in this case was not brought forward in the record and so we will assume that it justified the maximum penalty. Therefore the maximum penalty of $100 for a simple assault is here approved. See Wills v. State, supra.
The cause is modified as indicated above and otherwise affirmed. | [
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Holt, J.
Appellee, Esso' Standard Oil Co., sued appellant, A. 0. Terry, on a verified open account on July 31, 1951, for merchandise sold and delivered to appellant in October and November, 1949, in the amount of $433.96. Service of summons was had on appellant on July 31,1951. August 24,1951, appellant filed demurrer, alleging that the complaint did not state a cause of action. September 24, 1951, before the court had acted on the demurrer, appellant filed unverified answer containing a general denial and the further allegation that “if defendant (appellant) ever owed the plaintiff (appellee) money or debt, that plaintiff took possession of 820 gallons of gasoline of the value of $200 and other property which would be, and should be a credit on said claim of plaintiff herein filed; that said property was taken by plaintiff some time in 1951, the exact date defendant does not have, which property was converted to plaintiff’s own use.”
The case was set for trial on October 3,1951. Appellant failed to appear and judgment by default was entered for appellee for the amount claimed. The judgment was correct.
The record reflects that appellant offered no reason or excuse whatever for his failure to appear for the trial. Section 28-202, Ark. Stats. 1947, provides: “Affidavit as to correctness of accounts upon which suits may be brought in any of the courts of this State, the affidavit of the plaintiff, duly taken and certified-according to law, that such account is just and correct, shall be sufficient to establish the same, unless the defendant shall, under oath, deny the correctness of the account, either in whole or in part; in which case, the plaintiff shall be held to prove such part of his account as is thus denied, by other evidence. [Act March 5, 1867, No. 102, § 1, p. 210; C. & M. Dig., § 4200; Pope’s Dig., § 5211.]”
On facts'similar, in effect, to those presented here, on the effect to be given § 28-202, above, in Clarke v. John Wanamaker, 184 Ark. 73, 40 S. W. 2d 784, we said: “The effect of § 4200 of Crawford & Moses’ Digest [now § 28-202, Ark. Stats.] is to make a verified account, when undenied, prima facie proof of its correctness. The defendant did not deny the correctness of the account by affidavit or by verified answer. * * * By virtue of the statute above quoted, the account verified by the affidavit of the agent of the plaintiff was evidence of its correctness, and, not having been attempted to be contradicted by the defendant, warranted a judgment in favor of the plaintiff. Chicago Crayon Co. v. Choate, 102 Ark. 603, 145 S. W. 197.
“The judgment will therefore be affirmed.”
Appellant contends, however, that the judgment should be reversed for the reason “that the complaint was defective because it failed to state whether or not the Esso Standard Oil Co. was a corporation, or if it is a partnership, it should so allege, or if it was a trade name that should have been alleged and the real person named as plaintiff, if a partnership then all the partners should have joined in, * * * further defective because it fails to allege when the transaction was entered into or what State. ’ ’
The complaint stated a cause of action. It appears undisputed that appellant made no specific denial that appellee was a corporation, partnership, firm or individual. He therefore waived any question of appellee’s capacity to sue as “Esso Standard Oil Co.” and in effect admitted such capacity. Our Code of Pleadings, § 27-1121, Ark. Stats. 1947, provides: and answer shall contain: * * * provided that any allegation of the complaint or other pleading setting out the status of any party or parties as a corporation, partnership, firm or individual shall be taken as admitted unless specifically denied.”
It further appears undisputed that the transaction did occur and when it occurred. Just what effect the “place” of its occurrence would have, in the circumstances, was not pointed out by appellant. There is no merit to this contention.
Appellant also contends that the court erred in dismissing his answer and cross-complaint or setoff since appellee failed to interpose a denial. The record reflects, as indicated, that appellant was served with summons on July 31, 1951, the day suit was filed, that he filed a demurrer on August 24th and an unverified answer containing a general denial and setoff September 24th, before the demurrer was acted upon by the court. On the date set for trial, October 3rd, thereafter, appellant failed to appear and offer any evidence in support of his alleged setoff, or credit of $200, claimed in his answer.
In these circumstances, the court, sitting as a jury, after hearing the evidence offered by appellee in support of the amount claimed, and absent any evidence that appellant was entitled to a setoff, and his failure to appear and prosecute his claim thereto, correctly dismissed appellant’s answer and setoff (or cross-complaint) and entered judgment for 29-401 and § 29-402, Ark. Stats. 1947.
Affirmed. | [
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Ward, J.
Appellants, who are attorneys, brought this action to recover for services rendered, as attorneys, based on a contract entered into with the widow and all the heirs (except appellee, W. E. Owen) of E. L. Owen who died testate on May 19, 1913.
The lands described above were owned by the said E. L. Owen and were left to his widow Louisa Frances Owen by his last will and testament with certain restrictions and limitations not necessary to mention here. According to the complaint in the case at bar appellants were to recover the title and possession of the said lands. In the prayer of their complaint appellants ask for three things: First, that they be adjudged the owners of an undivided 9/20 interest in the oil, gas and minerals in and under said lands and that their title to the same be quieted and confirmed; second, in so far as it affects their rights mentioned above, that a commissioner’s deed dated July 27, 1944, conveying- said lands to appellee be can- celled as a cloud on their title; and third, if the relief mentioned above be denied that they be allowed recovery on a quantum meruit basis for their services and that such recovery be declared a lien on the said lands. To the above complaint the appellee pleads res judicata.
We agree with appellee that the issue sought to be litigated herein has heretofore been determined adversely to appellants by former decisions of this court. The litigation preceding and in some way connected with this case has been long and involved and it would be burdensome to attempt to analyze it in detail, but for those who care to know the facts we refer to the former decisions of this court. For ready reference these cases are designated as follows:
Decision No. v. Dumas, 200 Ark. 601, 140 S. W. 2d 101, decided May 13, 1940.
Decision No. v. Smith, Chancellor, 201 Ark. 1057, 147 S. W. 2d 1013, decided February 24, 1941.
Decision No. v. Owen, 205 Ark. 777, 171 S. W. 2d 294, decided April 26, 1943.
Decision No. v. Owen, 210 Ark. 505, 196 S. W. 2d 987, decided October 21, 1946.
Decision No. Trustee v. Owen, 213 Ark. 995, 214 S. W. 2d 503, decided October 18, 1948.
The above decisions will show that on August 5, 1940, the same parties who made the said contract with appellants executed to them a mineral deed conveying 9/20 of the oil, gas and minerals in and under the land described above; that appellants have litigated their rights under said mineral deed; and that they have been denied relief. These decisions will further show that at the time of appellants’ contract of employment ap-pellee had a prior claim to the extent of $2,635.12 on the lands here involved; that said claim was prosecuted and said lands sold at public sale to appellee; that appellee paid the purchase price of $12,500 (deducting the amount of his claim) into the registry of the court; that said fund belonged to the parties who made the contract with appellant; and that said funds were available for the satisfaction of appellants ’ claim had they chosen to pursue that remedy.
In this case appellants, after an unsuccessful attempt to recover on the mineral deed mentioned above, seek to recover under the original contract. They cannot do this because all rights under said contract were merged with and extinguished by the acceptance of said mineral deed. In both instances the same parties and the same subject matter were involved. The only difference if any was that the mineral deed was a higher form of expression of appellants’ claim. See Doniphan, Kensett & Searcy Railroad Co. v. Mo. and North Ark. Railroad Co., 104 Ark. 475, 149 S. W. 60; Graves v. Bodcaw Lumber Co., 129 Ark. 354, 196 S. W. 800; Harrower v. Insurance Co. of North America, 144 Ark. 279, 222 S. W. 39.
In addition to the above appellants are now estopped from asserting their claim at this time because they neglected to pursue their remedy in former proceedings and in particular when they failed to assert it at the time of the sale to appellee mentioned above.
To appellants’ prayer for relief on a quantum meruit basis they are met with the same obstacles mentioned above. It is also pointed out that appellants have no claim on a quantum meruit basis against appellee because he was no party to their contract of employment.
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Ward, J.
James Dean Miller, as an employee of the Shell Oil Company, was injured on the 7th of April, 1949, while attempting to cut a limb above his head. On his second attempt to cut the limb with a brush hook he was seized with a'sudden pain under his left arm, and the pain soon spread to his chest, abdomen, back and legs. After trying to continue work for something like thirty minutes he was forced to quit and he was taken to a hospital.
At the hospital he was operated on for a ruptured peptic ulcer, but the operation proved this diagnosis to be false. Soon after recovering from the antithetic incidental to the operation he was seized with pain in his entire body, including his right arm.
One doctor thought appellee’s injury was the result of a spider bite, but this was ruled out by another doctor. The record contains the testimony of several doctors with conflicts to some extent, but all doctors- agree that appellee is afflicted with causalgia. It is also agreed that eausalgia affects the nerves in some manner and is accompanied by pain or a burning sensation.
Appellee has been treated by several doctors and in different hospitals, but has never recovered. His claim is now based on temporary total disability affecting his right hand.
It is stipulated that the relationship of employer and employee existed at the time of the injury and that appellant has complied with the Workmen’s Compensation Law as a self insurer.
The Commission and the Circuit Court found that appellee was entitled to compensation. This appeal by the Shell Oil Company presents only the question whether there is substantial evidence to support the finding of the Commission.
In our opinion the determination of the Commission is supported by substantial evidence. Dr. George B. Fletcher examined appellee and thought his symptoms were the result of trauma to nerves sustained when the patient assumed an unusual position in doing his work, i. e., in thrusting his arm upward and forward to cut the limb; he found nothing* to bring on causalgia other than the patient stretching and straining; and he was positive the injury resulted from this activity because it occurred immediately after having gone through the motion of cutting the limb, and was not present prior thereto. This testimony was corroborated by other medical testimony and also by citations from medical texts. One doctor, in particular, disagreed on the ground that the pain in appellee’s right arm did not occur for some time after the injury but he stated that causalgia could he caused by damage to the nerve trunks, resulting in infection, stretching, or bruise, and he agreed with authorities that causalgia may result from a forceful stretch of a nerve. The Commission was fully justified in accepting the positive testimony of Dr. Fletcher and other doctors.
For the reasons stated above the judgment of the lower court is affirmed. | [
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George Rose Smith, J.
The appellant and the ap-' pellees are respectively the owners of two adjacent city lots, both of which are zoned for light industrial use under the Little Rock zoning ordinance. For some time before this suit was filed each lot was occupied by a commercial building, set back at some distance from the street which abuts both lots. In September of 1951 the appellees brought this suit to enjoin- the appellant from constructing what the appellees contend will be a separate and additional building between the appellant’s original building and the street. The appellant’s defense is that the proposed construction will be not a separate building but merely an addition to the existing structure. The zoning-ordinance provides that only one building may be placed upon a single lot, but it does not prohibit the enlargement of existing buildings. The chancellor, finding that the proposed construction would violate the ordinance, granted the relief sought by the plaintiffs.
The ordinance defines a building as: “A structure having a roof supported by columns or walls, and when separated by a division wall without openings, each portion of such building shall be deemed a separate building.” The evidence supports the chancellor’s conclusion that the appellant’s proposed construction would be a separate building as defined by the ordinance.
The testimony and the photographs of the construction in progress show that the appellant is erecting a small frame building that will be from five to eight feet in front of the main building. The two structures will be connected in two ways: (a) Each rests upon a concrete slab foundation, and a concrete walkway has been poured to join the two foundations; and (b )each has a roof with wide eaves, and the two roofs will be joined above the walkway. Thus there will be a space of several feet between the wall of the old building and that of the new. Although it is contended by the appellant that the two structures will be “completely joined,” the appellant’s building contractor testified that only the foundations and the roofs will be connected. The appellant’s vice-president testified: ‘ The roof of the old building . . . would meet the roof of the new building were they at the same height. The walls would be approximately five feet apart but the roofs would be together. ’ ’ There is in the record an architect’s plan which indicates that what we have called a walkway will be enclosed by walls to provide storage space for the tenant in the new building, but even this plan does not indicate that there will be in the division wall an opening to permit passage from the new building to the old. Such an opening is required by the definition we have quoted. The chancellor correctly held that the appellant’s plan violates the ordinance.
It is also argued that the appellees should have exhausted their administrative remedy before resorting to the courts. It is shown that the city’s Board of Adjustment refused to permit the appellant to erect a separate building on its lot. Nevertheless the city engineer issued a building permit for the proposed construction, and it is now contended that the appellees ’ remedy was to appeal to the Board of Adjustment. On the record made below we cannot sustain this contention. The ordinance provides that any person aggrieved by a decision of the “Building Commissioner” may appeal to the Board. This record shows that the city engineer issued a building permit, but there is nothing to indicate that he is also the Building Commissioner or that any administrative remedy has been provided for a review of the city engineer’s decisions.
Affirmed. | [
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G-rifein Smith, Chief Justice.
Perry C. Mark held title to certain lands in Eureka Springs on East Mountain. His agent, N. Bare, entered into a verbal contract with C. F. Planque to sell the unimproved property for $3,500. Ten percent of the purchase price was paid, the balance to become due when good title was shown. The area presumptively embraced approximately seven, acres. The transaction appears to have been handled informally, resulting- in protracted delays. Planque ascertained that a spring and lands reserved to the City were embraced within the tract shown him by Bare and refused to consummate the deal. Mark’s circuit court action was transferred to equity where Bare intervened. The seller’s contention was that the contract had been breached and that he was entitled to the-$350 as a forfeit. The court dismissed Bare’s intervention, directed costs to be paid from the deposit, including an attorney’s fee of $100 to Bare’s attorney, and the residue to be turned over to Mark. Each principal appealed.
The evidence is convincing that Bare was Mark’s agent. "When Planque was ready to inspect the property Mark was sick, but Mrs. Mark went with Bare to show him in a general way what she knew about the tract'. Her testimony and Bare’s are at sharp variance. Bare was certain that definite representations were made regarding corners. Mrs. Mark emphatically denied the details, saying that she did not know where the specific points were and therefore could not have given the information attributed to her.
Our view is that the ease turns on Bare’s frank admission that Mark could not convey the property shown to Planque. Appellee objects that the long denine months from sale to which only objection related to a telephone line— gave implied acquiescence in the title and description. A 64-page abstract was delivered to F. O. Butt, attorney. His letter of Sept. 23, 1950, refers to numbered lots in Blocks 202 and 221, “and balance of Block 221”. In the opinion it is stated that the lots were described “per E. & A. Plat of the City of Eureka Springs, but from such plat it is impossible to find or locate the lots described, or their lines or boundaries”. Planque was advised “to determine definitely if the lands sold you are occupied by any adverse claimants, definitely where the boundaries in accepting title, require such boundaries to be expressed. . . .”
Mark testified that he was not requested, during a period of approximately nine months, to meet any of the requirements. He was asked to have the telephone line removed, and this was done without cost.
Appellee refers to the abstract delivered to appellant’s attorney, calling attention to the fact that ap-pellee’s predecessor in title was Belford and Rowena Howard, in whom title to Blocks 202 and 221 was quieted in a chancery proceeding, ex parte. The point at issue, however, is whether through inadvertence Bare, as Mark’s agent, pointed to property not susceptible of conveyance. Bare, at Planque’s request, procured a surveyor and identified the south line Mrs. Mark is said to have had identified. From this beginning the surveyor ran the lines. The area plotted included a substantial “jutting” of City property. The surveyor used Mark’s deed and descriptions contained in the Howard decree. His conclusions were that Blocks 202 and 221 were not plotted, ‘ ‘ and as a surveyor it was impossible to find or locate any such lots. I could locate these two blocks, but there was no method known to me to find the lots [mentioned in the Howard decree”].
The decree is reversed, with directions that appellant’s deposit be refunded. But due to the long delay occasioned by a lack of initiative by either party, costs will be adjudged equally against the litigants. This includes the survey. | [
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George Rose Smith, J.
This is a suit for $255.22, brought by the appellee as plaintiff. The complaint alleges that the plaintiff has a credit in that amount with the defendant, a Ford automobile dealer. The defense is that as a part of an agreed exchange of used vehicles the plaintiff agreed to buy a new Ford from the defendant, and the defendant is entitled to hold the credit for application on the price of a new car when the plaintiff decides to buy one. At the close of the proof the trial court directed a verdict for the plaintiff. In this situation we view the evidence most favorably to the party against whom the verdict Was directed; so we shall state the facts in that manner.
In the fall of 1949 the plaintiff, a plumber, was urgently in need of a pick-up truck; his tools were damaging the Ford sedan that he was using. The defendant had for sale a used truck for which it had allowed $500 in a trade for another car. The plaintiff wanted to exchange his sedan for the truck, but he insisted upon being paid $1,200 for the sedan. The- defendant’s salesman told the plaintiff that the sedan was not worth $1,200 and that the company could not make the trade. Stinson was so persistent, however, that the salesman, “to get him off our necks,” finally agreed to let him have the truck at the same $500 valuation at which the company had acquired it and to take the sedan at Stinson’s price, provided that Stinson would buy from the company the new Ford which he expected to need at about Christmas. Stinson agreed to this arrangement. Since there was an incumbrance against the sedan amounting to $444.78, which the company assumed and paid, the net credit amounted to $255.22, the sum sued for. Later on the company resold the sedan for $950, confirming the salesman’s estimate of its value. Thus at this point the company had sustained a loss which it hoped to recoup by selling Stinson a new car.
Shortly before Christmas the salesman asked Stin-son when he would be ready for his new car. Stinson said that he would not need it until after the first of the year. The salesman cautioned Stinson to give the company a little advance notice so that the car he wanted could be obtained. Apparently Stinson made no objection to this suggestion.
On a Saturday afternoon in March, without previous notice to the company, Stinson appeared and asked for a new car. At that time the only new Ford on hand was an expensive model equipped with a radio, heater, overdrive, etc., and having a market price of $2,149.90. Stin-son was unable to make the down payment required on a car sold at this price. Without giving the company an opportunity to obtain a cheaper car Stinson went to a dealer in another city and bought a new Ford priced at $1,811. He then filed this suit to recover his credit.
This legalistic view of the matter is out of harmony with the usages of practical business men. We doubt if the average citizen would consider Stinson’s agreement so meaningless that he should be permitted to disregard it and cause the company to suffer a loss in a transaction that was largely an accommodation to Stinson. Similar agreements have been made elsewhere and have been enforced by the courts. In McIllmoil v. Frawley Motor Co., 190 Calif. 546, 213 P. 971, the pertinent part of the plaintiff’s written agreement upon a like trade-in was simply: “I will buy a new Mitchell car. It is understood that Frawley Motor Co. shall keep $500.00 as a deposit on the new car. ’ ’ In holding the contract valid the court said: ‘ Here the plaintiff had agreed to purchase from the defendant a new Mitchell automobile. The particular car to be taken was not thereafter a subject of negotiations, all that remained to be done in this behalf being the selection by the plaintiff of one of the various models of Mitchell cars on sale by the defendants. Nor was the price to be paid therefor a subject of future agreement, since, the prices of the various models . . . being-fixed and standard, the selection by plaintiff of the car desired determined the price and made the contract definite in that respect also.” To the same effect is. Moon Motor Car Co., of New York, v. Moon Motor Car Co., Inc., 2d Cir., 29 F 2d 3, where Judge LearNed HaNd summarized the principle in a sentence: ‘‘When the buyer must choose among classes of chattels which are defined, or will be when the time comes, and at prices then fixed by something other than the promisee’s will, exercised ad hoc, the usual rule is that an obligation arises.”
In the case at bar there was testimony that the price of new Fords is fixed by the manufacturer. All that Stin- son had to do was to make his selection, which of course he was entitled to do. Even if the jury should find that the parties did not later expressly agree that advance notice should be given the company, the law would allow the seller a reasonable opportunity to obtain the car selected by Stinson. If there were only four models and eight available colors there would be thirty-two possible choices, and Stinson could not reasonably expect the dealer to have them all in his showroom on demand. As to the enforcibility of the contract, upon a breach by the defendant the courts will have no difficulty in affording the plaintiff his remedy, and upon the plaintiff’s refusal to perform the defendant’s damages are to be measured by its profit on that model which provides the smallest profit to the dealer. Rest., Contracts, § 32, Illustration 8.
Reversed and remanded for a new trial.
Ward, J., dissents. | [
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George Rose Smith, J.
The appellee brought this suit upon four promissory notes and upon a claim for back salary, all owed by a partnership called Neark Enterprises. The defendant below was Dr. Robert Haley, whom the plaintiff alleged to be a member of the firm. Dr. Haley denied that he was a partner 'in the business, but he admitted having signed one of the notes and asked judgment by subrogation against Joe Bowen and Ethel Haley, whom he asserted to be the sole partners in the concern. The circuit court, sitting without a jury, found that Dr. Haley was a partner, entered judgment against him in the amount of $4,017.29, and rejected his claim to subrogation.
Neark Enterprises was engaged in the operation of “pinball” machines and “juke-boxes.” Although the partnership agreement of 1947 designated the partners as L. A. Regel, Joe Bowen, and Ethel Haley (Dr. Haley’s former wife), there is much evidence to show that it was Dr. Haley who was really a member of the firm, rather than his wife. Bowen testified that he considered Dr. Haley to be a partner. Dr. Haley admits that he employed the appellee as a bookkeeper for the firm. When an effort was made to sell the failing business in 1949 Dr. Haley signed a sales contract which recited that he and Bowen were the sole owners of the business. There is other testimony to show that Dr. Haley was an active partner and carried the business in his wife’s name for professional reasons. We conclude that there is ample evidence to support the finding that Dr. Haley was a partner, and as such he is liable for the partnership debts. Ark. Stats. 1947, § 65-115.
A second contention is that part of the appellee’s salary claim accrued more than three years before suit was filed and is therefore barred by limitations. The •appellee testified, however, that a part payment was made on March 16,1949, less than three years before she filed suit, and that she applied the payment to the salary account. This she had the right to do, in the absence of any instructions by the debtor, Bell v. Radcliff, 32 Ark. 645, and the statute ran anew from the date of the payment. Taylor v. White, 182 Ark. 433, 31 S. W. 2d 745.
Error is also assigned in the court’s failure to enter judgment against all three partners instead of against Dr. Haley alone. Except as to the one note which Dr. Haley had signed this relief was not sought below until the motion for a new trial was filed, and the request was then too late. Mills v. Robertson, 201 Ark. 170, 144 S. W. 2d 731. .As to the note signed by Dr. Haley, his answer impleaded Bowen and Ethel Haley and prayed judgment against them by subrogation on the theory that Dr. Haley executed the note merely as a surety. In a case the other day, involving this same appellant, w.e held that the surety is not entitled to a judgment of subro-gation until he pays the principal debt. Haley v. Brewer, ante, p. 511, 248 S. W. 2d 890. The same rule applies here, as Dr. Haley is not shown to have paid the judgment against him.
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Holt, J.
This is an action on a promissory note. In a complaint filed by appellee, Mid 0. Brewer, lie alleged, in effect, that Floyd E. Brewer, Addie Brewer, and appellant, Robert J. Haley, as makers, executed their note to him in the amount of $1,400 on November 1, 1948, that said note was due and unpaid and sought judgment for 1,400 with interest and costs.
Service of summons was had on Addie Brewer and appellant, Haley, only, (no service was had on Floyd E. Brewer), and each answered separately admitting the execution of the note in question and that it was due and unpaid, but offered no affirmative defense. Each alleged and claimed to be an accommodation maker for the other and prayed, in effect, that the}'' be permitted to so show, and that their rights of subrogation be established by the trial court. The note was not paid, and none of the makers offered to pay it.
To each of these separate answers, appellee filed a demurrer which the court sustained.
Appellant, Haley, and Addie Brewer elected to stand on their answers, refusing to plead further, and the court entered judgment against both for appellee.
Haley alone appeals. He says: “The only question before this court is whether an accommodation maker of a promissory note has the right to establish that fact in a case brought by the holder of the note and have his rights adjudicated against the beneficiary of the proceeds of note or the principle maker.”
He admits the execution of the note and that he seeks no affirmative relief against appellee, Mid O. Brewer, but asks “that this case be remanded with instructions which will allow this appellant to establish his rights as against ]iis co-makers.” In other words, he objects to a judgment against him on the pleadings presented, and on his admitted liability, without also an adjudication by the trial court of his rights of subrogation against his comaker, Addie Brewer.
The judgment of the court was correct. Regardless of the relation among the three makers of the note here, each was liable to appellee for the full amount of the note. Each was jointly and severally liable and appellee could sue any or all at his Stats. 1947, § 27-810, § 27-812.
Appellant, as indicated, admitted liability and neither he nor any of Ms co-makers offered to pay the note during the pendency of the suit or at any time. His attempt to assert a right of subrogation must, therefore, fail for the reason that such right could only be' accorded him after the debt or note in question had been paid. •
The principles of law announced in Plunkett v. State National Bank, 90 Ark. 86, 117 S. W. 1079, apply with equal force here: “Defendants could not demand the right of subrogation without having first paid the whole of plaintiff’s debt and could not force the latter into a court of equity for the purpose of enforcing the collection of the collateral notes. Jones v. Harris, ante, p. 51 (90 Ark.), 117 S. W. 1077; 1 Brandt on Suretyship and Guaranty, § 339.
“As no valid defense was stated to the plaintiff’s cause of action on the notes, the circuit court was right in rendering judgment thereon, ” and in Bank of Fayetteville v. Lorwein, 76 Ark. 245, 88 S. W. 919, this court said:
‘ ‘ The right of subrogation cannot be enforced until the whole debt is paid; and until the creditor be wholly satisfied, there ought [to] and can be no interference with his rights or his securities which might, even by bare possibility, prejudice or embarrass him in any way in the collection of the residue of his claim.’ ”
Appellee prayed for statutory penalty provided in § 27-2149, Ark. Stats. 1947, on the ground that this appeal was without merit and prosecuted for delay only. The above statute provides: ‘ ‘ Upon affirmance of a judgment, order or decree for the payment of money, the collection of which in whole or in part has been superseded as provided in this chapter, 10 per centum damages on the amount superseded may be awarded, at the discretion of the court, against the appellant, in cases where said appeal was taken for delay.”
On the record here, and in the exercise of that discretion accorded us, we cannot say that appellant was not acting in good faith in superseding the judgment and prosecuting his appeal. Appellee appears secure in his judgment and interest thereon until paid by Haley. His rights do not appear to be prejudiced.
The judgment is affirmed.
Appellee’s motion for the imposition of a penalty is denied. | [
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Dickinson, J.,
delivered the opinion of the court:
The order of the Court was, that “ he certify the matter of the settlement of the administration of the estate of Alexander Burton, deceased, with the will annexed, to (he Governor of this State, as a case pending for adjudication in said court of probate, in which he is alleged to have been of counsel for the. said administration, on the part of the administrator thereof; and that he desist from proceeding to adjudicate upon the matter of the said estate; or that he show cause,” See. The command of the writ is, “that you utterly desist from any further proceeding against said Hawkins upon said citation, and from any further proceedings in regard to the matter of the settlement of said estate.” A return was made, to which the plaintiff filed his plea. The defendant then moved to quash the writ, because it does not conform to the order of the Court upon which it issued. If the writ is defective in substance, the motion may be sustained. Rex vs. Bishop of Oxford, 7 East., 345; The People vs. The Judges of Westchester, 4 Cowen, 73. The only question is, whether the motion can be made after a return. In the case of The King vs. the Mayor of York, 5 T. R., 74, Lord Kenyon and Justice Bulles, said, “It was too late to take objection to the writ after a return thereto.” This is, however, the only case which we have succeeded in finding, that limits the right to object previous to the return. All the other authorities show, that the motion will lie for any defect in substance after the return has been made. And in the case of T e King vs. The City of Chester, Holt R., 438, the return was considered insufficient, and the writ, being found bad, was quashed. See, also, in the case of The King vs. The College of Physicians, 5 Burr., 2740, the mandamus was quashed after the return was made. The same decision was made in the case of The King vs. The Margate Pier Company, 3 B. & A., 221. And Chancellor Walworth held the same doctrine,' in the case of The Commercial Bank of Albany vs. Canal Commissioners, 10 Wend. R,, 25. And these decisions are, 'in our opinión, sustained by reason and justice; for it is presumed that all the material facts on which the relator founded his claim, are set out in the writ, in accordance with the order of the Court by which it is issued.
It is from the writ only that he can learn the commands of the Court, and what he is required to do. Great strictness is at all times required in the issuing of this writ. It must not be enlarged, nor can it be limited within narrower bounds than the Court directs. A variance in substance, changing its character as to the act required to be done, will be fatal. The writ shows the grounds of the complaint. The command to desist from proceeding in the settlement of' the administration, is one tiling; and rights inserted in the writ to desist from further proceeding upon the citation, is another, and wholly different and distinct, for which the Court made no order. If the writ can ex'end at all beyond the order granting it, so as to include other matters, the right involved could, at the will of the party, be made to depend upon a state of facts never presented to- or contemplated by the Court, and upon which, if exhibited, the writ might have been refused, and the original grounds upon which the Court acted in awarding it, &c., wholly lost sight of, and a determination had upon a collateral question, different from the one upon which the Court passed in awarding the writ. So, if it can be entered, upon the same rule, the writ might be more limited in its terms, and in effect thereby not present the whole subject matter as intended to be acted upon by the Court, who is presumed, from a view of the whole state of facts, to have framed the order, and directed the performance of an act, in such a manner as may best effect the object in view, and answer the purposes of justice. It is for the plaintiff to see that his writ is properly issued, and that it conforms to the order of the Court. He cannot complain, if, when he departs from the authority under which he acts, his writ should be quashed and set aside. The writ, in this case, was clearly wrong in commanding the defendant to desist from further proceeding upon the citation, and must therefore be quashed, with costs. | [
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ROBERT J. GLADWIN, Chief Judge.
|TThe Arkansas Board of Examiners in Counseling (Board) denied Andrew H. Beavers’s request for a waiver of the statutory provision denying eligibility for li-censure to those persons who have committed certain felonies. See Ark.Code Ann. § 17-27-313(e) (Supp.2011). Beavers appealed to the Pulaski County Circuit Court, which denied Beavers’s petition for judicial review and affirmed the Board’s determination by order filed May 15, 2012. On appeal to this court, Beavers argues that the Board’s denial was not based on substantial evidence; was illegal, arbitrary, and unconstitutional; and was in violation of two statutory provisions — Arkansas Code Annotated sections 17-1-103 (Repl.2010) and 17-27-313(g). We affirm.
|⅞1. Statement of Facts
Beavers received his law degree in 1988, worked as a public defender in Little Rock in 1989, served in the Arkansas National Guard and was deployed to the Persian Gulf in 1990, and eventually worked at the Arkansas Highway Department. In 1995, Beavers was convicted in a Texas federal court of conspiracy to distribute drugs. He admits to being addicted to cocaine at the time that he had planned to import cocaine from south Texas to Chicago. Based on this conviction, he was sentenced to sixty-nine months in federal prison, which was to be followed by three years of supervised release. Beavers surrendered his law license in Arkansas. This supervision was extended due to a violation of the conditions of his supervised release, and Beavers completed his supervision on September 8, 2004. At the time of the crime, Beavers was thirty-seven years old. He is now age fifty-four and claims to be fully rehabilitated. The length of time since the felony conviction has been approximately seventeen years, and Beavers does not deny the circumstances surrounding his felony conviction.
Since his release from prison, Beavers’s work history has focused on his rehabilitation. He has been a substance-abuse counselor since November 10, 1998, and in 1998 he worked as a full-time counselor-in-training at Hoover United Methodist Church in Little Rock.
In January 2004, Beavers began working in the mental-health field at Living Hope Institute, St. Vincent Infirmary, in Little Rock. From 2003 through 2005, Beavers studied at the University of Arkansas at Pine Bluff and earned a Masters of Addiction Science. From 2008 through 2009, Beavers studied at Mercer University Counseling Center in Atlanta, | ^Georgia, and earned a Masters of Community Counseling. During the period from 2007 through 2009, Beavers assisted Dr. Eugene Herrington at the Morehouse School of Medicine in Atlanta, Georgia, as a research assistant.
Beavers has worked for Jackson-Hewitt Tax Service from 2001 through 2009 as a seasonal employee, both in Little Rock, Arkansas, and Gwinnett County, Georgia. Beavers has been certified as an alcohol- and-drug counselor for twelve years and licensed for three years in the state of Arkansas. He has been employed for three years by the state of Arkansas at the Department of Community Correction.
When Beavers applied to the Board to be a Licensed Associate Counselor (LAC), the Board denied his request based on his criminal record. The Board is charged with licensing and regulating Licensed Professional Counselors and Licensed Marriage and Family Counselors. Beavers sought a waiver under Arkansas Code Annotated section 17-27-313 for his felony conviction, and the Board denied the waiver. Beavers then petitioned the circuit court for judicial review, where the Board’s decision was affirmed. This appeal timely followed.
II. Standard of Review
Judicial review of decisions of the Board is governed by the Arkansas Administrative Procedure Act (APA) pursuant to Arkansas Code Annotated section 25-15-212 (Repl.1996). See Ark. Bd. of Exam’rs in Counseling v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998); Bohannon v. Ark. State Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995). Our review, like that of the circuit court, is limited in scope and is directed not to the decision of the |4circuit court, but to the decision of the administrative agency. Ark. Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). Under the APA, it is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record; rather, review is limited to ascertaining whether there is substantial evidence to support the agency’s decision or whether the agency’s decision runs afoul of one of the other criteria set out in section 25-15-212(h). Id. Those criteria are whether the petitioner has been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark.Code Ann. § 25-15-212(h)(l)-(6). We review the entire record in making this determination. Ark. Alcoholic Beverage Control Bd. v. Muncrief, 308 Ark. 373, 825 S.W.2d 816 (1992).
We will not reverse the Board’s decision if there is substantial evidence to support it. Bohannon, supra. Substantial evidence is evidence that is valid, legal, and persuasive and that a reasonable mind might accept to support a conclusion and force the mind to pass beyond speculation and conjecture. Id. The question is not whether the testimony would have supported a contrary finding, but whether it would support the finding that was made. Id. It is the prerogative of the Board to believe or disbelieve any witness and to decide what weight to accord the evidence. Id. Similarly, the construction of a state statute by an administrative board or agency will not be overturned unless it is clearly wrong. Thomas v. Ark. Dep’t of Human Servs., 319 Ark. 782, 894 S.W.2d 584 (1995). Our supreme court has often stated that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition accounts for the limited scope of judicial review of an administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. See, e.g., Hamilton v. Ark. Pollution Control & Ecology Comm’n, 333 Ark. 370, 969 S.W.2d 653 (1998); Soc. Work Licensing Bd. v. Moncebaiz, 332 Ark. 67, 962 S.W.2d 797 (1998); Wright v. Ark. State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).
III. Arkansas Code Annotated section 17-1-103
Appellant first argues that the Board’s denial of his request for a waiver is in direct conflict with Arkansas Code Annotated section 17-1-103, which provides in part that
(a)(1) It is the policy of the State of Arkansas to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the assumption of the responsibilities of citizenship.
(2) The public is best protected when offenders are given the opportunity to secure employment or to engage in a meaningful trade, occupation, or profession.
(b)(1)(A) Subject to the provisions of subdivision (b)(2) of this section in determining eligibility under this section, a board, commission, department, or an agency may take into consideration conviction of certain crimes that have not been annulled, expunged, or pardoned.
(B) However, such convictions shall not operate as an automatic bar to registration, certification, or licensing for any trade, profession, or occupation.
(c) The board, commission, department, or agency shall state explicitly in writing the reasons for a decision that prohibits the applicant from practicing the trade, occupation, or profession if the decision is based, in whole or in part, on conviction of a felony.
(d) For the purposes of this section, completion of the following shall be deemed prima facie evidence of sufficient rehabilitation:
|n(l) Probation or parole supervision; and
(2) A period of five (5) years after final discharge or release from any term of imprisonment in the state penitentiary without any subsequent conviction.
Ark.Code Ann. § 17-l-103(a)-(b)(l)(B), (c)(d)(2).
Beavers contends that the evidence established that he was convicted of a felony in 1995, served four years in prison, and after being released, served three years on supervised release, and completed his supervised release in 2004. Thus, he meets the criteria of section IT — 1—103(d), establishing a prima facie case for rehabilitation. This is supported by his obtaining two masters degrees that deal with counseling. He also claims that the Board failed to explicitly state in writing the reason for its decision, which is required under section 17-l-103(c).
While section 17-1-103 encourages rehabilitation in general, the Arkansas Supreme Court has already held that this general statute does not confer a right upon a rehabilitated offender to a particular trade or license. See Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986). The stated reason for the Board’s denial was that Beavers failed to assure the Board that allowing him to become licensed was consistent with the public interest and the protection of potential clients. Because it is the prerogative of the Board to believe or disbelieve any witness and to decide what weight to accord the evidence, the Board was justified in not finding Beavers’s testimony to be credible. McQuay v. Ark. State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999).
|7IV. Substantial Evidence
Appellant contends that the Board’s decision is not supported by substantial evidence. He argues that the Board’s statement — “The applicant has not been able to assure the Board that waiving the disqualifying felony conviction would be consistent with the public interest and the protection of potential clients” — is not supported by any evidence except that he had been convicted of a felony sixteen years earlier. He argues that pursuant to Arkansas Code Annotated section 17-27-313(g)(2), circumstances for which a waiver may be granted shall include, but not be limited to, the following:
(A) The age at which the crime was committed;
(B) The circumstances surrounding the crime;
(C) The length of time since the crime;
(D) Subsequent work history;
(E) Employment references;
(F) Character references; and
(G) Other evidence demonstrating that the applicant does not pose a threat to the health or safety of children.
Beavers argues that these factors should have been addressed in the order.
The evidence before the Board was Beavers’s testimony that, before he went to law school and was a junior-high-school teacher, he had “pretty much” stopped smoking pot but “probably drank a little too much.” The Board heard and considered the evidence that, since he was released from prison, Beavers earned two degrees and holds licenses in Arkansas and Georgia. It also heard his testimony regarding how he had rehabilitated himself or “changed his activity.” The Board has discretion to either waive a prior felony conviction or not. Here, the Board decided not to waive it. At the time of the crime, appellant was thirty-seven years old, no longer a child but an adult who had been a licensed attorney for |8seven years and who had taken an oath to uphold the law and to act in an ethical manner. He admitted that he had violated the law while he was an attorney. He also explained the circumstances of his probation violation when he failed to inform his probation officer that he was running a transportation business, whereby he transported children and then billed the Department of Human Services. Because of the probation violation, Beavers’s probation was extended one year. In sum, the Board found that Beavers’s testimony that there would be no future aberrations in his behavior was not credible, and there was substantial evidence to support the finding that the prior felony conviction should not be waived to allow Beavers to offer counseling.
V. Arkansas Code Annotated Section ll-21-313(g)
Beavers argues that the Board’s denial was in direct conflict with section 1Y — 27—313(g) because the Board failed to consider his evidence of rehabilitation or the factors listed under the statute, such as age, circumstances, work history, and the like. Ark.Code Ann. § 17-27-313(g)(2)(A)(G). He relies on the evidence as set forth in the facts above and contends that the Board failed to consider his rehabilitative efforts, instead relying solely on his 1995 conviction.
The Board’s denial does not conflict with section 17-27-313(g) because the statute gives the Board discretion. Ark.Code Ann. § 17 — 27—313(g)(1) (A prior felony conviction may be waived.). Therefore, the fact that Beavers believes he has been rehabilitated does not give him an absolute right to obtain a license to practice counseling in Arkansas. See Bolden, supra.
|9VI. Constitutionality
Beavers claims that the Board’s denial was illegal, arbitrary, and unconstitutional. Under Arkansas Code Annotated section 17-27-308(a), the Board may waive formal examination requirements of a candidate who is licensed or certified to practice counseling or marriage and family therapy by a similar board in another state if, in the opinion of the Board, the standards and qualifications required in the candidate’s licensing state are at least equal to those required in Arkansas. Beavers contends that it was an abuse of discretion to deny him a waiver using a standard that he was not able to assure the Board that waiving the disqualifying felony conviction would be consistent with the public interest and the protection of potential clients.
He argues that the Composite Board of Georgia, which licenses professional counselors in that state, requires unanimous approval for a waiver. It involves a thorough investigation of any felony committed by an applicant. The Georgia Board’s requirements for a professional license in counseling are the same requirements of the Arkansas Board. Appellant is licensed in the state of Georgia. He is also a National Certified Counselor, having passed a national counselor’s examination, which is required in all fifty states. Further, he is a licensed alcohol-and-drug abuse counselor by the authority of the state of Arkansas. Ark.Code Ann. § 17-27-408.
Therefore, Beavers claims that the Board abused its discretion in denying a waiver to him because it failed to consider reciprocity after knowing he was licensed in Georgia. The Board stated that a waiver would be inconsistent with the public interest and the protection |mof potential clients. However, both Georgia and Arkansas have issued him professional licenses to him using the same language — “what would be consistent with the public interest and the protection of potential clients.”
The argument that his rights were violated by the Board’s denial because three other licensing bodies have granted him licensure is without merit. Because the Board’s decision to deny his request to waive his prior felony conviction is supported by substantial evidence, the decision cannot be classified as arbitrary and capricious. Olsten Health Servs., Inc. v. Ark. Health Servs. Comm’n, 69 Ark.App. 313, 12 S.W.3d 656 (2000).
Affirmed.
HARRISON and WHITEAKER, JJ., agree. | [
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KENNETH S. HIXSON, Judge.
11 Tammie and Virgil Drake bring this appeal from an order of the Sebastian County Circuit Court terminating their parental rights to their minor children, B.D. (born March 10, 2005) and K.D. (born February 12, 2003). Appellants contend that insufficient evidence exists to support the court’s ruling that it was in the children’s best interest to terminate their parental rights. We disagree and affirm.
Drakes’ Six-Year History with DHS
The Drakes have a long history with the Arkansas Department of Human Services (hereinafter DHS). In October 2006, DHS filed a petition for emergency custody, alleging that the two minor children were dependent-neglected. The children were placed on a seventy-two-hour hold under an order for emergency custody. The court subsequently found the juveniles to be dependent-neglected and ordered DHS to make a trial placement of the |2children with Virgil so long as Tammie did not live in the house and so long as she was not relied upon as caregiver; that Virgil was to prove that he had childcare arrangements while he was at work; that the juveniles were not to be left alone in the care of Tammie; and that Tammie was to submit to a drug-and-alcohol assessment and follow-up treatment as recommended. The court also issued a restraining order against a family acquaintance, Paul Mash-burn, Jr., a registered level-three sex offender, stating that he should have no contact with the juveniles. The court stated that the goal in the case was family preservation.
Less than nine months later, on July 18, 2007, DHS filed a petition for emergency change of custody asking the court place custody of the minors in the care of DHS. The ensuing investigation revealed Virgil had moved without notifying DHS, that he was living with Tammie and allowing her to have unsupervised visits with the juveniles, that he was possibly drinking again, that Tammie was bringing men into the home after Virgil left for work while the children were in the home, that Tammie was drinking, and that Mashburn had been in contact with the children again. After a seventy-two-hour hold, the children were returned to the custody of Virgil and the court ordered the maternal grandmother, Bunny Taylor, to be the caregiver when Virgil was not home. It also allowed Virgil to make arrangements with a licensed daycare but ordered that no one else was to provide care for or babysit the juveniles. Tammie was not allowed to have any unsupervised time with them, and the grandmother was to be the only person allowed to stay overnight. The court again ordered that no contact was allowed between Mashburn and the children. In January 2008, |safter a review hearing, the court found that the parents had complied with orders of the court and returned custody of the children to the parents.
In May 2010, another petition for emergency custody was filed in which DHS stated that the Fort Smith Police Department found Tammie to be extremely intoxicated and had been in a physical altercation and was unable to care for her children. She was placed under arrest for endangering the welfare of a minor. The children were removed from the home and adjudicated dependent-neglected. In December 2010, the court held a review hearing and found that the parents had stable housing and Virgil had stable employment with sufficient income, and that the mother had completed parenting classes and her drug screens were negative. However, the court kept custody of the children with DHS.
A permanency-planning hearing was held in May 2011, and the children remained in the custody of DHS. The court found that appellants were complying with the established case plan and orders of the court. The court stated that the children should be returned home to the parents in a time frame consistent with their developmental needs but no later than three months from the date of the permanency-planning hearing. However, less than one month later, an order was entered in which it was found that Tammie, who it stated had significant mental illness, was not taking her medications.
At the fifteen-month review hearing, the court again returned the children to the parents but ordered that DHS was to maintain its case as a protective-services case and the goal of the plan was still family preservation. At the hearing, Tammie was pregnant and the court expressed its concern that she would not be able to take her medications during |4pregnancy. In February 2012, the court noted that it had concerns regarding the children’s school attendance and the mother’s refusal to take medication for her diagnosed bipolar disorder.
Only one month later, DHS filed another motion for ex-parte change of custody, alleging that circumstances had changed since the children had been returned to their parents. It alleged that Tammie “was so mentally unstable as to be incoherent and unable to provide care for the safety of the juveniles.” The petition stated that Virgil was working in Oklahoma and would stay there for multiple days at a time and was not available to care for the children. It noted that this was the fourth time that the children had been placed in foster care. DHS was again given custody, and the court ordered parental visitation to be in-home and overnight only as long as Virgil was present and that the children were not left alone in the care of the mother. In April 2012, the children were again adjudicated dependent-neglected.
DHS subsequently filed a petition for termination of parental rights in June 2012. The grounds for the petition included: that the children had been out of the custody of the parents for twelve months and despite a meaningful effort by the department to rehabilitate or correct the conditions that caused removal, the conditions had not been remedied; that the parents had willfully failed to provide significant material support; that Tammie had failed to attend appointments for treatment; that Tammie had failed to take prescribed medication for her mental illness; that Tammie had shown an indifference to remedying her mental health; that Virgil had failed to provide a safe and appropriate home that protects the children from hTammie’s mental illness; and that Tammie had been unsuccessful in reunifying with her other children in Nebraska and had her rights terminated to four other children.
The Termination Hearing
A hearing was held on the petition to terminate. Tammie testified that she was receiving treatment for bipolar disorder. She stated that she and Virgil had moved to a new house one month ago but that they were going through a divorce. She stated that the house was not ready for the children and that she had not unpacked their things. She stated that the State of Nebraska had previously terminated her rights to four of her other children. She acknowledged that B.D. and K.D. had been in the custody of DHS and had been in and out of the home. She also stated that she had missed visitation with her children three times in a row while they were in the custody of DHS.
Tammie also testified that she was not working but wanted to. She said her plan was to sign up for food stamps and that she had picked up a form the day before the hearing. She acknowledged her recent arrest for driving while intoxicated, serving jail time, and having her license taken away. She stated that she was “pretty wasted” that night. She also acknowledged spending time in a mental hospital and receiving counseling services through DHS.
Virgil testified that he was not currently employed because he had been injured on his former job and could not work. He was in the process of applying for workers’ compensation. If he did return to work, he stated that his job would require him to leave home at 3:30 a.m. and return at 7:30 p.m. and that he would work a week, then be off a week. He stated that when he was working, Tammie would supervise the children and that if Tammie were not | fidoing well, his daughter, who lives in Nebraska, had offered to care for the children. Virgil also testified that he and Tammie recently had a new baby, born in Oklahoma.
Virgil testified that he had completed counseling and that he was thinking of getting a divorce in order to regain custody of his children. He testified that he knew he was not supposed to allow Tammie to have unsupervised time with the children.' But he stated that it was his opinion that even if Tammie did not take her medication, she would not jeopardize their children if she had supervision of them. He also said that they had missed at least six visits with the children recently when they were in DHS custody. He acknowledged a problem with alcohol. He stated that after Tammie was released from the mental hospital, her mental health was improved.
Dr. Nancy Powell, a clinical psychologist, evaluated Tammie and Virgil. She diagnosed Tammie with a personality disorder. She tested the couple and found that the results from the tests showed alcohol abuse being significantly elevated and found the couple to be rigid in their parental skills. She testified that she did not think Tammie would understand the needs of her children, but rather that she would be focused on herself and what her needs were; that she would have problems understanding the children’s developmental needs and that she would have trouble coping with stress. She also was fearful that Tammie would use alcohol as a means of coping with unpleasant emotions. She stated, “My belief is with the amount of time that this case has been going on, the amount of services received, the amount of classes |7taken, and to find no better parenting skills than I found on ... I have doubts that that’s going to improve.”
Todd Blaylock, who had been the assigned caseworker for the appellants’ case, testified that appellants had not been consistent with visitation and that it had been a long stretch of time since they had seen the children. He stated that although he had photos of the new home, neither of the Drakes were employed and had done nothing to establish that they were ready to have custody of their children. He stated that a high probability existed that something would happen to the children because of Tammie’s mental illness, and because of her alcoholism problems coupled with inadequate supervision. Blaylock also testified that the children had been in and out of DHS custody but that collectively they had been in foster care for at least two years. He felt that the problem with the couple regaining custody of their children was based on the mother’s long-term mental-illness issues that had not been dealt "with and Virgil not understanding Tammie’s need for treatment. He stated, “I believe the mental health issues and the substance abuse issues and the lack of understanding from Mr. Drake about the dangerous issues pose are still present in the family.” He stated that he felt DHS had exhausted everything that it could as far as resources for the family.
Charles Pennington, a licensed master social worker and therapist on behalf of Tammie, testified that she had very severe symptoms of bipolar disorder but that, after she was treated recently in the mental-health hospital, her symptoms improved. He stated that her improvement was due to proper medication. He also stated that he did not believe that she had any problems with alcohol but that it was a characteristic of bipolar disorder to drink pevery once in a while. He said that she was taken from jail directly to the mental hospital because that was the only possibility for her to get better. He was pleased with how well she had responded to the treatment. He acknowledged that without her medication, she is severely manic most of the time. He also stated that she had had lapses in taking her medication.
After considering the above testimony, the court entered an order finding clear and convincing evidence existed to terminate the appellants’ parental rights. Specifically, it found that the children had been out of the home for more than twelve months; that Tammie had moved and had not maintained a stable residence; that the family had no income at the time and that neither parent had a job and future possibilities of employment at the time; that Tammie had no driver’s license and no transportation; that Tammie and Virgil had missed a significant number of visits with the children; that Tammie had been arrested for DWI and had recently been committed to a mental-health facility; that the substance-abuse issues in the home had not been resolved; that Virgil resided with Tammie and had not maintained stable housing; that if Virgil obtained the job he was seeking, he would be gone sixteen hours a day and Tammie would be the primary caregiver for the children; and that Virgil had failed to recognize that Tammie presented a risk of harm to the children when she was left in charge. The court noted that there was a likelihood that the children would be adopted if the termination petition were granted.
|flThe Appeal
Appellants bring this appeal contending that the trial court erred in terminating their parental rights because insufficient evidence exists to support the finding that it was in the children’s best interest to terminate their parental rights.
Appellants concede that with respect to Tammie, grounds for termination exist in that she had her rights to four other children involuntarily terminated, but argue that it is not in the best interest of the children in this case to have her parental rights terminated. They argue that Virgil’s rights should not have been terminated based upon the findings by the court that he neither remedied Tammie’s mental-health issues nor provided stable housing and income. They argue that the real reason for terminating Virgil’s rights was not because of Tammie’s mental-health issues, but rather because he had lost his job and thus his family income. They argue-that preceding Virgil’s injury on the job, he had provided stable housing and income. They also argue that the children had always done well, that they have a stable marriage, and that Virgil was hardworking and consistently employed. They contend that his job loss was of no fault of his own.
As for Tammie, they acknowledge her history with bipolar disorder but argue that she had not been properly treated for it. Once she began receiving proper treatment, she responded well. They argue that together they can provide for the safety and welfare of the children, despite one of them having limitations. In addition, they contend that no testimony or evidence was presented that the children were poorly adjusted or had been physically or | inemotionally abused. Rather, they had attended school, remained in their appropriate grades, and made good grades.
The appellants ask this court to remand the case and direct DHS to offer reunification services so that they can have additional time to demonstrate that they can overcome adversity due to Virgil’s on-the-job injury. They ask for more therapy, counseling, and parenting assistance. Throughout the case, they contend that Virgil has been a consistent caretaker. They argue that the court’s opinion was speculative and was full of conjecture and was indicative of potential problems and that the evidence was not clear and convincing that the problems could not be remedied.
Termination of parental rights is an extreme remedy and in derogation of a parent’s natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Fenstermacher v. Ark. Dep’t of Human Servs., 2013 Ark. App. 88, 426 S.W.3d 483. We review termination-of-parental-rights cases de novo. Id. Grounds for termination of parental rights must be proven by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegations sought to be established. Id.
Our inquiry is whether the trial court’s findings that the facts were proven by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly | n erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id.
In order for a court to terminate parental rights, the court must enter an order finding by clear and convincing evidence that it is in the best interest of the juvenile, taking into consideration the likelihood that the juvenile will be adopted if the termination petition is granted; and that potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parents. Ark.Code Ann. § 9 — 27—341(b)(3) (Supp.2011). In addition, the court must also find by clear and convincing evidence that one or more statutory grounds for termination exists. Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2011). However, proof of only one statutory ground is sufficient to terminate parental rights. Fenstermacher, supra.
As it pertains to Tammie, she admitted that she had her parental rights involuntarily terminated to four other children. Ark.Code Ann. § 9-27-341(b)(3)(ix)(o)ft). Fenstermacher, supra. As we stated previously, the court need only prove one statutory ground for termination.
As it pertains to both Tammie and Virgil, testimony was presented by Blaylock, the caseworker, that the children had been out of the home for twelve months. Tammie admitted to having a bipolar disorder and failing to stay on medication. The court noted that the substance-abuse issues had not been resolved and that Tammie had recently been arrested for DWI and had spent time in a mental-health facility. Virgil testified to being aware of Tammie’s mentahhealth issues, but that he fails to adequately understand the damage ofJjgTammie having unsupervised time with the children. Virgil was without any income, said he planned to apply for food stamps, and hoped to return to work. However, he stated that if he returned to his job, he would leave at 3:30 in the morning, returning at 7:30 at night thus leaving the children in the custody of Tammie when they were not in school. The court also noted the testimony of Virgil and Tammie that they had not provided stable housing. In fact, they had moved less than a month before the hearing, but Blaylock testified that he learned of their move at the termination hearing. Tammie, Virgil, and Blaylock all testified that Tammie and Virgil had missed several scheduled visitation appointments.
Based upon the evidence presented, we cannot say that the court order terminating parental rights is clearly erroneous.
Affirmed.
WYNNE and WOOD, JJ., agree.
. This new baby was taken into protective custody by DHS of Oklahoma and is not a party to this litigation, | [
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Dickinson, J.,
delivered the opinion of the court:
It is not denied by the counsel for the defendant in error that the mill was not finished; but it is contended that the facts of submission to an award by Manuel, the payments made by him to Campbell, and other circumstances detailed in evidence, go to prove his accep tance independent of mere possession. It is necessary for us to ascertain, first, the nature of the contract, and whether the performance of Campbell’s part of the agreement was a condition precedent to the payment by the defendant, or whether the covenants are mutual and independant. Sergeant Williams, in his note to Pordage vs. Cole, 1 Saund. 320, note (4), remarks that many of the old, as well as modern cases are decided upon distinctions so nice and technical, that it is difficult to lay down any general principle by which to determine what covenants are independent, and what dependent. The only court rule is, to construct covenants according to the meaning of the parties, and the good sense of the case. To ascertain that intention, some general rules are adduced from adjudged cases: 1st. If a day be appointed for the.performance of any act, and such a day is to happen or may happen before the performance of the act which is the consideration of the first mentioned act, then the covenants are considered mutual and independent, and an action may be brought without averring.performance of the consideration; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent, and so it is when no,time is fixed for the performance of the consideration. 2d. But when the day or time appointed for the payment of money, or performance of an act is to happen after the thing which is the consideration is to be performed, no action can be maintained before performance of the condition. 3d. When a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid in damages, it is an independent covenant, and an action may be brought for a breach of the covenant without averring performance.
And when a person has received a part of the consideration for which he entered into agreement, it would be unjust that because he has not had the whole, he should therefore be permitted to retain that part, without either paying or doing any thing for it; and therefore, the law obliges him to perform the covenant on his part, and leaves him to his remedy — to recover damages for not receiving the whole consideration. 4lh. But when mutual covenants go to the whole consideration, on both sides, then they are mutual conditions and dependent.
When two acts are to be done at one and the same time, neither partj can maintain action without performance, or an offer to perform his part. Under what head ought this contract to be classed? We think there is no difficulty in putting a proper construction upon it. The building of the mill is a condition precedent to the payment of it; and when the mill is finished, according to his stipulation, all of Campbell’s covenants are necessarily fulfilled; while Manuel’s covenants, to find and pay one hand, &c., as they must be performed while the work is progressing, are necessarily concurrent and dependent upon Campbell’s. Each has charged himself with certain specified duties, for the non-performance of which an action of covenant will lie; or the party can bring debt upon the penalty, and assign breaches; but he cannot go out of his contract. He must recover, if at all, upon it. The plaintiff, in his declaration, avers performance, until hindered and prevented by the defendant; who, on his part, pleads performance of all his covenants, and non-performance by the plaintiff. He also pleads payment. The execution of the contract, and the payment of ninety dollars, are admitted. Manuel denies all liability. On the trial of this case, a verdict was given to Campbell for seventy dollars: to secure it, the plaintiff in error sued out his writ to this Court. The evidence adduced upon the trial, is substantially correct, as stated by the counsel of the plaintiff in error. The whole is set out in a bill of exceptions; also, the objections raised to the judgments: that the Court refused to instruct the jury, 1st, “ That if they believed that the work by said contract agreed to be done, was not done by said plaintiff in a workmanlike manner, or the manner specified in said covenant, the plaintiff cannot recover, unless the defendant accepted said mill in discharge and satisfaction of the covenant aforesaid ; and that the mere fact of his remaining in possession of said mill, does not prove that he accepted it in discharge or satisfaction of the covenant. 2d, And also, that the jury cannot make a deduction, and give a verdict for the plaintiff, for a balance which they may think should be reasonably allowed him for his labor in this action, in case they believe the work not to have been done in a workmanlike manner, or not in the manner specified in the covenant; but must, in such case, find for the defendant.”
The mere fact of remaining in possession, proves nothing; for Manuel could not divest himself of it without surrendering a portion of his freehold, which he was not bound to do. The residue of the instructions asked for, will be considered together. Here is a contract under seal, entered into, by which Manuel stipulates to pay Campbell a certain sum, upon certain conditions, second, by a penalty. Campbell aveys performance, or what he contends is equivalent to performance, and therefore claims the sum stipulated to be his in that event. The parties themselves have made the contract the law by which they are to be governed, and have fixed the criterion of damages to which Campbell is entitled; and a jury cannot obviate the effects, of such a contract, by giving damages only commensurate with the labor. The sum stipulated to be paid for the whole, might be greatly over the real value of that kind of work; or, on the other hand, if that price, so agreed upon, had been too low, by disregarding the terms of the agreement, and rating the labor at the ordinary value of such work, it might, upon the same principle, if only partly done, carry it beyond the price agreed upon for the whole when completed. In neither event, would such a rule have an equal bearing upon the parties, or be consonant with justice.
If there is no fixed sum'agreed upon, then the rule is, that he shall have a reasonable price, commensurate with the labor done, allowed him. It is not so much of an inquiry whether Manuel complied with his contract, as whether Campbell, the party claiming to be injured, fulfilled his own covenants. For the breach of good faith on one side, will not aid him who is equally guilty. Campbell must first bring himself within the equity of the law, before he can claim to have it enforced upon the other. In conclusion, Campbell must show that, up to the time when he charges Manuel with a refusal to board him, &c., he had himself complied with every thing which on his part he had promised to do. Then, and not till then, can he claim the price stipulated to be paid him; and then, he is entitled to the whole of it; for, if Manuel was in fault, and threw Campbell out of employ, and compelled him to incur losses and expenses, he has no right to complain upon being required to conform to his contract.
This is not like many of the cases reported in the books, where contracts arc enlarged, changed, or rescinded, by mutual consent, or where extra work is done, for which the party claims a reasonable compensation upon a quantum meruit in assumpsit, without relying upon the stipulations expressed in the contract.
The counsel for the defendant in error, contends that he only contracted to do the work to the best of his “knowledge, skill, and ability,” and objects to the introduction of the word “ workmanlike” in the instructions asked for. This objection cannot be sustained; for when a party contracts to do a certain piece of work in his “ trade,” he is presumed to be both able and willing to do it in a workmanlike manner: the very oiler to do the work, pre-supposes capacity. To say that a builder, after the destruction of the materials, and the expenditure of his employer’s means, should be permitted to shield himself from damages, upon the ground that he only contracted to the best of his knowledge, skill, and ability, and that he is not responsible if the work is not done in a workmanlike manner, would be a fraud which the law will not countenance. If the contractor doubts his own capacity, he must provide for it in his contract; otherwise, if he uses general expressions, he must be governed by general rules: Bull. N. P., 139; 10 Mass., 287; Stagg vs. Munro, 8 Wend., 399; Northrop vs. Northrop, 6 Com., 296; Lawrence vs. Dale, 3 J. C. R., 23; Jewell vs. Schroeppel, 4 Cowen, 564.
The award of the arbitrators ought not to be considered; for the object of submitting matters of contract to arbitrators, is for the purpose of obtaining a speedy and final determination of the matters in dispute, with less delay and expense than by having recourse to the ordinary tribunals of the country, it is the intention of the parties, in submitting their disputes, to have something ascertained, which was «before uncertain; and it is a general rule, that the award ought té beso plainly expressed, that there may be no uncertainty in what manner, and when, the parties may put it into execution, but that they may certainly know what it is they are to do. An uncertain award is useless.
The award here is neither certain nor conclusive, but indefinite, unfinished, and not final; it can therefore have no bearing upon either of the parties. The testimony of the several witnesses introduced, does not clearly show cither performance or its equivalent upon the part of Campbell, nor the acceptance of the work by Manuel. Upon the whole, we are of the opinion that the first instructions asked for were rightfully refused by the Court, as too broad and general; for it is a sound principle, that he who prevents a thing from being done, shall not avail himself of the non-performance he has occasioned; but that the Court erred in not giving the second instructions, as moved by the plaintiff in error; and as this Court cannot know what influence the refusal so to instruct may have had upon the finding of the jury, the judgment is reversed. | [
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Dickinson J.,
delivered the opinion of the Court:
. The question in this case is, whether a writ of error will lie in the matter before us?
That writs of error issue, as of course, to the Circuit Courts, is not controverted. But can they issue to the Corporation Court of the city of Little Rock? If not, how is the superintending authority of the Supreme Court to be exercised in restraining and correcting the irregularities of that and other inferior Courts?
The question is, to our minds, of easy solution. By the 3d section of chapter 43 Rev. Stat. Ark., the Circuit Court is specially invested with jurisdiction to “hear, try, and determine appeals from all judgments and orders- of the Probate Court and justices of the peace, in all cases not expressly prohibited by law;” and shall have a superintending-control over them; and the Constitution gives the Circuit Court “power to issue all the necessary writs to carry into effect their general and specific powers.” So the act establishing the Corporation Court also gives an appeal to the Circuit Court. From the judgement of the latter, a writ of error lies to this Court; thus securing the right of appeal to the party complaining, and ultimate revision by this Court. In examining the various provisions of the Constitution, and the several laws defining the powers and duties of the different tribunals, it will be found that competent means are provided, by which all private rights may b.e pursued, and private injuries redressed-;--and that the utmost harmony pervades our whole system of jurisprudence. There is no class of cases unprovided for: -on the-contrary, the laws are adapted to every occasion that may arise — to every circumstance that may occur; and substantial justice may be speedily administered to all. If a party feels himself aggrieved by one tribunal, he -may, if he avails himself of the facilities offered to him, step by step, and in regular gradation, in general ascend from the most inferior to the superior Court, until at last he reaches the highest point of authority and law. By this means, individual rights are secured, the errors of the one Court rectified by the other, and our whole judicial system preserved entire and unbroken.
A construction such as is contended for, instead of affording protection and benefit,, would be oppressive from its expense, and injurious by its delay. The mode of proceeding before Corporation Courts and justices of the peace, is summary. The ordinary forms of pleading are not observed nqr required. Men of law learning do not usually preside in the adjudication of cases, and errors and irregularities in their proceedings will therefore be of frequent occurrence; to remedy which, appeals are allowed to the Circuit Court, within some definite period, of which the party complaining must avail himself in time, .or bear the consequences of his negligence or inattention. It would, in our opinion, not only be unsound policy, but contrary to existing rules and usages of law, to extend writs of error to Courts of summary jurisdiction. If they ought to be more extensively applied than they now are, we have a Legislature always ready and able to afford every requisite remedy; and this we presume will be admitted to be,the proper mode, if it is deemed advisable to enlarge the powers of this Court, so as to embrace cases coming direct from qorporation courts or justices of the peace.
But we cannot believe that it was ever designed, hither by the framers of our Constitution, or by our legislators, that this Court should be oppressed with questions of law which might arise before every justice of the peace or corporation court, by allowing them to be brought up direct on writs of error. The evils resulting from such a construction have been foreseen, and wisely provided for, by restricting the use of such writs to final judgments of the Circuit Court. Were appeals or writs of error allowed to bring up cases direct from the most inferior Courts, it is easy to imagine the mischiefs that would ensue. The man of moderate means, the diffident suitor, and the lover of quiet, will yield to the presumptuous and overbearing; and the rights of the poor will frequently be crushed by his more wealthy opponent. The spirit of litigation would be engendered, strengthened, and diffused, and the usefulness of this Court in a great measure destroyed, by crowding its docket with cases in many instances without a shadow of law or justice to sustain them, to the annoyance of meretorious litigants, and the exclusion of its legitimate business.
The opinion of this Court on the application of John C. Slattery, to be discharged on'habeas corpus from the judgment of the Corporation Court of Little Rock, for using obscene language, is considered applicable to this case, as neither that offence, nor the one for which this applicant was convicted, is provided for or made punishable by any statute of this State. .
The writ of error must be refused. | [
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Dickinson, Judge,
delivered the opinion of the court:
The defendant insists that, if one' count is'bad, the objection is good to the residue. We are by no means prepared to admit the correctness of this position; for it is clear, to our minds, that if one count in the indictment be good, although the other may be defective, it will be sufficient to support a general verdict of guilty. 1 J. R. 320. Archbold's Cr. Pl. 61, says that, indictments for misdemeanors may contain several counts for different offences, provided the judgment for each be the same. ‘ _
The power of the court to quash indictments, is discretionary. They may do it immediately, or oblige the defendant to plead or demur as they may think bests In the exercise of this discretion, they are guided by certain rules; and when the motion comes from the defendant, they are more strict than if the application is made by the prosecution; because, if the indictment is quashed, the" recognizance is ineffectual; and it might be doubtful about a good indictment being found in time. This rule is more strictly applicable to the higher offences when the ground is clear and plain, but it is presented in full force on an indictment when there are several counts, some of which are good, and upon which judgment could be given on a general verdict. It is frequently advisable, when the evidence will not support the whole charge, to insert several counts, for the prisoner may be found guilty of a part, and acquitted of the residue. If this be so, and we presume it will not be controverted, it follows, that if one count is good, and is sustained by evidence, judgment can be legally given upon it. Nor can a grand jury separate the parts of an indictment, but must either find a true bill or throw out the whole.
In 1 Chit. Crim., Law, 167, 8 and 9, and in authorities there cited, it is expressly laid down, “ that a defect in some of the counts of an indictment will not affect the validity of the remainder, for judgment may be given against the defendant for those which are valid.” in civil actions, the rale is different, because, if one part of the declaration is ill, and the jury find entire damages, the judgment must be arrested; and the reason of this distinction is, that in the latter case the jury find entire damages, and the court cannot apportion them, whereas, in the former, the court themselves regulate the severity of the sentence, and can do so according to their discretion upon those parts of the indictment that are supported. 1 Salk. 386.
We consider the question as regards the right of the court to try the defendant in case there is one good count, as well settled. Each separate count should charge the defendant, as if he had committed a distinct offence, because, it is upon the principle of the joinder of of-fences that the joinder of counts is admitted.
We will now proceed lo test the correctness of the decision of the court below, by the rules here laid down. The first section of the law prohibiting gaming; Rev. Stat. 273, declares that “every person who shall set up, keep, or exhibit any gaming table or gambling device, commonly called A. B. C., E. O., roulette, rouge et noir, or any faro bank, or any other gambling table or gambling device, or bank of the like or similar kind, or of any other description, although not herein named, be the name or denomination what it may, adapted, devised or designed for the purpose of playing any game of chance, or at which any money or property may be won or lost, shall be deemed guilty of a misdemeanor;” and the 4th section of the same act declares, that if any owner or occupant of any house, outhouse, or other building, or any steamboat or other vessel, shall, knowingly, permit or suffer any of the before mentioned games, tables or banks, or shall suffer any kind of gaming, under anj' name whatsoever, to be carried on or exhibited in their houses, or out-houses, or other buildings, or on board of any steamboat, fiatboat, keelboat, or other vessel, on any of the waters within this State, on conviction thereof, every such owner or occupant shall be punished, as is provided in the first section of this title.” It is under these sections, as necessarily connected, that the first count is found. Wc have given the subject the most mature deliberation, and come to what we think the only correct conclusion; that this count is sufficiently express in its language, and certain as to the character of the offence. He is charged with “ permitting and suffering divers evil-disposed persons to exhibit, caray on, and play upon a certain unlawful gaming table called a faro bank, in his grocery store.” And that such grocery store was kept in some such building or boat, mentioned in the statute, there can be no doubt, and is, in our opinion, sufficiently explicit. Nor can we see any serious objection to the other counts, certainly none sufficient to authorize the court to quash the indictment. Upon the whole, it is clear that the several offences, as charged, are within the letter and spirit of the statute.
The language used in the act against gaming, although not possessing great legal accuracy and precision, is nevertheless sufficiently explicit and comprehensive to include every species of gaming, be the name or denomination what it may, if adapted, devised or designed for the purpose of playing any game of chance at cards, or at which any money or property may be won or lost, and it is upon the rigid and faithful enforcement of the law, that much of the peace and good order of civil society depends.
The due and faithful administration of public justice by all the officers who are charged with this duty, would prevent much of the demoralizing influence that springs from this illegal and pernicious practice. That the Circuit Court of Chicot erred in quashing the indictment, we have no doubt. The indictment contains all the essential requisites that are necessary to charge the defendant.
The judgment of the Circuit Court must, therefore,, be reversed. | [
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WAYMOND M. BROWN, Judge.
| Appellants Odell Pollard, P.A. and Odell Pollard, individually, appeal an order of the White County Circuit Court granting summary judgment in favor of appel-lees and dismissing appellants’ complaint with prejudice. On appeal, appellants argue that summary judgment was erroneously granted because genuine issues of material fact existed regarding the damages to appellants’ property on account of the drill pad constructed by appellees. We affirm.
Appellants are the owners of approximately 320 acres of real property adjoining the Little Red River situated in both White and Cleburne Counties, Arkansas. Odell Pollard, P.A., executed an oil and gas lease in favor of Mid-Continent Title and Leasing Consultants, |2Inc., on December 22, 2004, covering a twenty-five-acre tract of properly near Pangburn, Arkansas. The lease was subsequently assigned to appellees. The parties entered into a surface-usage agreement in September 2009. Appellees extended the lease in December 2009.
laAppellees constructed the drill pad as contemplated by the lease and surface-usage agreement. The well produced gas for first sales on April 9, 2010. Appellants filed a complaint on March 18, 2011, alleging among other things, that appellees placed a drill pad on a tract of real property that “was a part of the future expansion plans for the existing river residential development activity which had already been commenced by [appellants] and that placing a gas well drill site on that property would greatly reduce its value for such residential development if not totally destroy said property for future residential development purposes.” According to the complaint, the surface-usage agreement was entered into when appellees declined appellants’ request to place the drill site on another tract of property owned by appellants. The complaint further alleged that appellees set up the drill site in such a manner that, instead of the 6.313 acres it was supposed to take up, it used or rendered useless 25.19 acres. Appellants sought compensation for the diminished value of the land due to appellees’ action. Appellants also contended that appellees allowed “drilling fluids and other contaminants to run off the drilling pad site damaging the gas well drilling site and the surrounding property ... in breach of the aforesaid surface-usage agreement and Arkansas law.” Appellees filed an answer on April 5, 2011, denying the material allegations in appellants’ complaint.
Appellees filed a motion for summary judgment on February 7, 2012, on the basis that appellants’ allegations were not supported by fact or law. Exhibits to the motion included, but were not limited to, the following: a copy of the oil and gas lease, the extension of the oil and |4gas lease, the surface-usage agreement, and the affidavit of Clifton Gregory. Gregory’s affidavit stated that the drill pad in question was constructed in conformance with industry practices and that it was a normal and reasonable size. He denied any spill or run-off from the drill site of drilling fluids or any other fluids that could create an environmental or contamination problem. According to Gregory, the location of the drill pad was the best location for it based on a number of factors, including geological concerns regarding potential faulting and appellees’ desire to run additional wells from the same drilling pad in a future drilling phase.
Appellants filed a response to appellees’ motion on March 16, 2012, contending that factual questions existed under the surface-usage agreement due to appellees’ failure to reasonably accommodate appellants’ request “as to the location of the drilling site and therefore unreasonably damaged the property value of the [appellants’] real property by destroying the tract for future residential development purposes which [appellants] had made known to the [appellees] through its agent landman.” Appellants attached Odell Pollard’s affidavit, stating that he witnessed water running off of the drilling pad onto the property to the north of the pad in the summer of 2009, that it was so much water that his truck became stuck, and that there had been no rain at the time of the incident. He also stated that he pursued the surface-usage agreement when appel-lees declined his request to place the drill pad on a different piece of property so as to not interfere with his development plans for the twenty-five-acre tract covered by the oil and gas lease. He concluded by stating that the property had been greatly damaged by the fact that “SEECO would not accommodate [him] by relocating the well site ... and then subsequently positioning the well site and drilling pad on [his] 25 acres in a manner which damaged [his] remaining property for future residential development activity Ufor which [he is] seeking damages as authorized by Arkansas law and the Surface Usage Agreement.”
Appellees filed a response on April 3, 2012, contending that Pollard’s affidavit was based on “allegations and conclusions, which are not sufficient to overcome [ap-pellees’] prima facie showing of entitlement to judgment as a matter of law.” Appellees denied that the surface-usage agreement entered into by the parties created a factual issue. Appellants filed a supplemental affidavit of Pollard on August 2, 2012, reiterating Pollard’s contentions that appellees failed to reasonably accommodate appellants’ request. Appel-lees filed a response on August 10, 2012, relying on Pollard’s deposition testimony that he had “no experience with natural-gas development and no experience with reference to the size and layout of pad sites for drilling natural gas wells” to support its position that summary judgment should be granted. Appellees included a supplemental affidavit of Gregory, which stated that appellants’ suggested location for the drill pad would have encompassed Pollard’s front yard and driveway.
The trial court granted appellees’ motion for summary judgment in an order filed August 17, 2012, stating in pertinent part,
After consideration of all matters of record and the presentation of the parties’ positions ... the Court finds that Defendants’ Motion for Summary Judgment should be granted on the basis that there are no genuine issues of material fact which would create a triable issue with reference to Plaintiffs’ position that Defendants failed to reasonably accommodate the Plaintiffs by not placing the subject natural gas well site at the subject location on Plaintiffs’ property. The Court finds the Plaintiffs failed to meet with proof the proof presented by the Defendants that the subject natural gas well site was reasonably] located and constructed in conformance with Defendants’ rights under the oil and gas lease granted by the Plaintiffs with reference to the subject real property.
| (Appellants timely filed a notice of appeal on September 11, 2012. On appeal, appellants argue that summary judgment was inappropriate because genuine issues of material fact remain regarding the surface damage caused by appellees by the construction of the drill pad.
Summary judgment should be granted only when there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. 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 the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review considers the pleadings and also the affidavits and documents filed by the parties.
Appellants give three reasons why summary judgment was inappropriate: (1) because appellees failed to offer proof on the controverted issue of diminution of value, (2) because appellants’ expert witnesses and testimony regarding diminution of value disclosed through answers to interrogatories present genuine issues of material fact, and (3) because Pollard’^affidavits and deposition testimony regarding physical damage present genuine issues of material fact.
Appellees argue, and we agree, that appellants’ arguments do not address the substantive point of law at issue. It is undisputed that the oil and gas lease gave appellees the right to use the property in question for its gas exploration and production operations and that the lease also permitted appellees to select the construction site for the drill pad. Controversy arose when appellees declined appellants’ requests to construct the drill pad in an other location. Generally, as against the surface owner, the owner of mineral rights has a right to go upon the surface to drill wells to his underlying estate and to occupy so much of the surface beyond the limits of his well that may be necessary to operate his estate and remove the product. An injury to the surface of the land by the owner of minerals may be said to be the result of the commission of a wrong when the use of the surface is unreasonable. An injury necessarily inflicted in the exercise of a lawful right does not create a liability, and a lessee will only be liable to the surface owner for damages when the lessee’s use of the surface is unreasonable. Here, appellees established that their use of the surface was reasonable, preventing any recovery at law for injury under the oil and gas lease. However, appellants argue that the surface-usage agreement created protection for their claim for damages for the diminution of value. A close look at the agreement fails to reveal any such “protection.” Although the agreement mentions compensation for surface damage, it does not mention under what circumstances compensation |sfor damages would be paid to appellants. The agreement does not seem to confer any more rights to appellants than they had under the oil and gas lease and at law. It was appellants’ burden to bring forth proof of this additional protection to defeat appellees’ motion for summary judgment. Appellants failed to meet their burden; therefore, summary judgment on the issue of diminution of value was appropriate. We do not address appellants’ second subpoint because we have already determined that appellants failed to meet their burden of proving that they had a cause of action for diminution of value.
Appellants also contend that summary judgment was inappropriate because Pollard’s affidavits and deposition created genuine issues of material fact regarding physical damage. Pollard stated that in the summer of 2009, his truck became stuck in run-off water from the drill pad. He further contended that the fluids were contaminating his property. However, Pollard admitted that he did not have any experience with natural-gas development, that he had not hired an expert to take samples of the fluids, and that he did not have anyone to testify about what the specific contaminants were. Appellees introduced the affidavit of Gregory, which essentially denied all of Pollard’s allegations. A mere suspicion in the mind of the party against whom summary judgment is asserted will not create a genuine issue of fact. Accordingly, we affirm the trial court’s decision to grant summary judgment.
Affirmed.
GLADWIN, C.J., and HIXSON, J., agree.
. The oil and gas lease gave Mid-Continent the exclusive right to the property for the purpose of:
prospecting, exploring by geophysical and other methods, drilling, mining, operating for and producing oil or gas, or both, ... together with the right to construct and maintain pipe lines, ... equipment and structures thereon to produce, save and take care of said oil and gas, and the exclusive right to inject air, gas, water, ... and other fluids from any source into the subsurface ... and any and all rights and privileges necessary, incident to, or convenient for the economical operation of said land, alone or conjointly with neighboring land, for the production, saving and taking care of oil and gas and the injection of ... fluidsf]
. The agreement stated in pertinent part:
This agreement is entered into by the parties for the sole and exclusive purpose of reciting their agreement regarding the provisions, conditions and details of the surface work to be conducted by SEECO in furtherance of the construction, operation and maintenance of a drill pad and connecting roadway located on the surface of real property owned by Odell Pollard. At the time of the execution of this document the parties have not reached an agreement regarding the monetary amount of any surface damages related to these surface activities. Accordingly, any issues related to compensation for any surface damages associated with SEECO’s surface activities are specifically excluded, reserved and withheld from this agreement. Notwithstanding their execution of this Agreement, both parties specifically reserve any and all legal rights they may now have, or which may accrue, with respect to issues of compensation for surface damages on the subject property caused by surface activities and operations of SEECO.
Without limiting the foregoing or SEE-CO’s rights under the above-mentioned oil and gas lease, Owner agrees and acknowledges that SEECO shall have the right to construct, install, use, maintain, remove, replace, repair and operate an access road, a drill pad (said drill pad to be constructed within a clearing area being 500' x 550' in size and occupying approximately 6.313 acres), pipelines, tanks, ... and such other improvements and structures on the Subject Land, and to use, maintain, repair and operate thereon temporary surface fuel and water lines, wellhead separators, ... and such other facilities, equipment, fixtures, supplies and materials, as may be required or desirable for the Well Operations. To the extent reasonably necessary or desirable for the maintenance, use and operation of such improvements, structures, facilities, equipment, fixtures, supplies, and materials[J
4. nothing in this release shall be interpreted or construed to restrict or prohibit the landowner from pursuing any legal rights he may have with respect to any damages to the Subject Land[J that are determined by-a-eou-rt- of competent-jurisdiction to be attributable to SEECO's negligence — fea—conducting—Well—Operations. (This language was struck-out by Pollard before he signed the agreement.)
. See Searcy Cnty. Counsel for Ethical Gov’t v. Hinchey, 2013 Ark. 84, at 5, 2013 WL 781099.
. See id.
. See id.
. See id.
. See id.
. Diamond Shamrock Corp. v. Phillips, 256 Ark. 886, 511 S.W.2d 160 (1974).
. Id.
. Id.
. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). | [
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JOSEPHINE LINKER HART, Justice.
|, The Washington County Circuit Court found that the Washington County tax collector improperly applied 1.45 mills of a voter-approved 2.75 ad valorem school-millage increase to the retirement of redevelopment-district bonds issued in 2005. We conclude that the circuit court did not err in making this finding and affirm.
In 2010, voters in the Fayetteville School District (School District) passed 2.75 new-debt-service mills that would, according to the ballot, “be a continuing debt service tax until the retirement of proposed bonds to be issued in the principal amount of $51,000,000” that were “for the purpose of erecting and equipping new school facilities, and making additions and improvements to existing facilities.” The ballot further provided that the “surplus revenues produced each year by debt service millage may be used by the [School] District for other school purposes.” In 2011, however, certificates issued by the Washington County assessor and Washington County tax collector resulted in 1.45 mills of that 2.75-mill ad ^valorem increase being applied to bonds issued to finance the Highway 71 East Square Redevelopment District No. 1 Project. The City of Fayetteville (City) had authorized by ordinance on March 15, 2005, issuance of those bonds.
The School District sought declaratory judgment and injunctive relief, asserting that the statute defining “total ad valorem rate,” which is “the total millage rate of all state, county, city, school, or other property taxes levied on all taxable property within a redevelopment district in a year,” Ark.Code Ann. § 14-168-301(18)(A) (Supp. 2011), had been amended to exclude any “[ijncreases in the total millage rate occurring after the effective date of the creation of the redevelopment district if the additional millage is pledged for repayment of a specific bond or note issue.” Ark. Code Ann. § 14 — 168—301(18)(B)(i) (effective April 13, 2005). The parties filed cross-motions for summary judgment, and the circuit court found that the assessor’s certification was incorrect and that the Washington County tax collector “improperly applie[d] to the [redevelopment district] the 1.45 mills of the 2.75 mills approved by the voters within the Fayetteville School District on September 21, 2010.”
The City appeals and presents three arguments for reversal. This case is appropriately before this court as an appeal involving substantial questions of law concerning the construction and interpretation of an act of the General Assembly. Ark. Sup.Ct. R. l-2(b)(6) (2012). As to the substantial questions of law presented here, our review is de novo. Hobbs v. Jones, 2012 Ark. 293, at 8, 412 S.W.3d 844, 850.
First, the City asserts that the circuit court’s finding was “fully litigated” in another case, City of Fayetteville v. Washington County, 369 Ark. 455, 255 S.W.3d 844 (2007), and |,.¡under the doctrine of res judicata, the circuit court could not allow relitigation. “Res judicata” precludes re-litigation of a cause of action. See, e.g., City of Marion v. City of W. Memphis, 2012 Ark. 384, at 6, 423 S.W.3d 594, 598. We disagree that the present cause of action is barred by the doctrine.
In City of Fayetteville v. Washington County, this court considered the effect of amendment 78 to the Arkansas Constitution, which authorized redevelopment projects, on the 25-mill rate mandated by amendment 74 for maintenance and operation of schools. Following that decision, the case was returned to the circuit court and a judgment was entered on June 4, 2007. The circuit court’s judgment provided that the 25 mills could not be included in the “[t]otal ad valorem rate.” The judgment further provided that the “ ‘[t]otal ad valorem rate’ shall include all other millage (not excluded above) in the annual Washington County Ordinance Levying County, Municipal and School District Taxes.”
It is the court’s latter finding that the City focuses its res judicata argument. The City asserts that the language constituted a finding that all future millages would be included in the total ad valorem rate. The present cause of action, however, asks whether the new millage rate for the School District should be included in the total ad valorem rate and is a cause of action distinctly different from that in City of Fayetteville v. Washington County, which considered the interplay between amendments 74 and 78. The previous case never considered how section 14-168-301(18)(B)(i) would apply to future millage increases. Moreover, the judgment entered by the circuit court did not contain any language addressing whether future millages should be excluded, or included, in the total ad valorem rate. Thus, the present cause of faction is not barred by the doctrine of res judicata.
Second, relying on article 2, section 17 of the Arkansas Constitution, which provides in part that “[n]o ... law impairing the obligation of contracts shall ever be passed,” the City asserts that section 14-168 — 301(18)(B)(i) unconstitutionally impairs the bond-purchase contract and financing of the redevelopment bonds, as the statute reduces the mills supporting the bonds. We cannot say, however, that the statute removed any portion of a tax that had been pledged to the redevelopment bonds. The 2.75-millage increase in 2010 had not yet been passed at the time the City’s March 15, 2005 ordinance authorized issuance of the redevelopment bonds. Furthermore, the official statement for the redevelopment district warned investors that the redevelopment bonds assumed an available ad valorem rate of 3.16 mills, an amount that did not include the 2.75 mills, and that one of the risk factors to be considered was the enactment of legislation that restricted mil-lages to be included in the applicable ad valorem rate. Thus, the statute did not impair the contract.
This case is distinguishable from Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000), where a proposed constitutional amendment that eliminated a tax on used goods would have contractually impaired the City of Brinkley’s sales-and-use tax bond secured by a pledge of sales-and use-taxes on all goods. This court observed that the “proposed measure abolishe[d] a portion of Arkansas’s sales and use tax which can no longer be used, as the City of Brinkley covenanted, to secure and pay its debts.” Kurrus, 342 Ark. at 447, 29 S.W.3d at 676. While the City of Brinkley’s bond official statement included language that spoke “in terms of the people of the State or the General Assembly defining transactions or granting exemptions that |fimight reduce tax revenues,” the language did not indicate that “an entire source of the sales and use tax revenues might be abolished and no longer available to secure the bond indebtedness.” Id. at 447, 29 S.W.3d at 676 (emphasis in the original). In contrast, the 2010 school-millage increase did not exist when the bonds were issued in 2005, and the official statement specifically anticipated that legislation might be enacted to restrict certain millages. Thus, the statute did not “abolish” a source of revenue for the bonds.
Third, the City urges that because the ballot for the 2.75 mills did not “expressly pledge” the new millage to a bond, it did not fall within the ambit of section 14 — 168—301(18)(B)(i), which excludes millages “if the additional millage is pledged for repayment of a specific bond or note issue.” The ballot, however, specifically indicated that the 2.75 new-debt-serviee mills would be a continuing debt-service tax for the principal amount of $51,000,000 in bonds. Thus, the 2.75 mills is for the repayment of a specific bond issue. While the ballot further provided that the “surplus revenues produced each year by debt service millage may be used by the [School] District for other school purposes,” this language on the discretionary use of surplus revenue did not undermine the provision that the mills were pledged for a specific bond. Moreover, section 14 — 168—301(18)(B)(i) does not negatively imply that surplus revenue from a millage pledged to a bond cannot be used for other purposes. Indeed, there is statutory authority providing that the “surplus ... may be pledged for ... any other school purpose.” Ark.Code Ann. § 26-80-106 (Repl.2008).
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KENNETH S. HIXSON, Judge.
liAppellants Kenneth Kitchen and Stacy Arnold have appealed from the termination of parental rights,to their seven-year-old daughter, S.K. The appellants’ counsel has filed a no-merit brief and motion to be relieved, stating that there is no issue of arguable merit to advance on appeal and that she should be relieved of counsel. We affirm and grant the attorney’s motion to be relieved as counsel.
In compliance with Linker-Flores v. Arkansas Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004), appellants’ counsel has ordered the relevant portions of the record, Ark. Sup.Ct. R. 6-9(c), and examined it for adverse rulings, explaining why each ruling would not support a meritorious argument for reversal, Ark. Sup.Ct. R. 6 — 9(i). The attorney’s brief and motion to be relieved were mailed to the appellants at their last known addresses, along |2with a letter informing appellants of their right to file pro se points. However, neither appellant has filed any pro se points.
We review termination of parental rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark.Code Ann. § 9-27-341 (Supp.2011); M.T. v. Ark. Dep’t of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997).
The appellants have been involved with the Arkansas Department of Human Services for several years. On September 7, 2007, S.K. was taken into emergency DHS custody as a result of both parents being incarcerated. S.K. remained in foster care from September 7, 2007, through June 16, 2009, during which time the appellants were provided a full range of DHS services. When S.K. was returned to the custody of her mother on June 16, 2009, DHS was ordered to maintain a protective-services case.
ROn March 13, 2012, DHS again filed a petition for emergency custody of S.K. Attached to the petition was an affidavit of a family-service worker alleging that Ms. Arnold was living in an apartment with a sex offender, and that she had recently been incarcerated. As a result of Ms. Arnold’s incarceration, S.K. began staying with Mr. Kitchen in a motel room. S.K. was infested with head lice. On the same day DHS filed its petition, the trial court entered an ex parte order for emergency DHS custody. In its order, the trial court noted that Mr. Kitchen had also been arrested. S.K. has remained in foster care since that time.
On May 16, 2012, the trial court entered an adjudication order finding S.K. to be dependent/neglected. The trial court found that S.K. was dependent/neglected due to inadequate supervision, environmental neglect, and parental unfitness due to drug use. Among other things, both parents were ordered to remain drug free and submit to random drug screens, submit to a drug-and-alcohol assessment, complete parenting classes, maintain stable and safe housing, and maintain stable employment. At that time, the goal of the case was reunification.
On June 27, 2012, the trial court entered an order terminating reunification services. In that order, the trial court found that there was little likelihood that services to the family would result in successful reunification. The trial court noted in its order that this was the second time that S.K. had been in foster care, and that despite the appellants receiving full DHS services between September 2007 and June 2009, S.K. again had to be removed in March 2012 for the same reasons as before, that being no adequate caregiver and the drug use |4of the parents. Orí August 3, 2012, the trial court entered a permanency planning order that changed the goal of the case to termination of parental rights and adoption.
On August 6, 2012, DHS filed a petition to terminate both parents’ parental rights. The termination hearing was held on September 24, 2012.
On October 11, 2012, the trial court entered an order terminating the parental rights of both parents. The trial court found by clear and convincing evidence that termination of parental rights was in the child’s best interest, and the court specifically considered the likelihood that the child would be adopted, as well as the potential harm of returning her to the custody of her parents as required by Ark. Code Ann. § 9-27-341(b)(3)(A) (Supp. 2011). The trial court also found clear and convincing evidence of the four following statutory grounds under subsection (b)(3)(B):
(i) (a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
(iv) A parent has abandoned the juvenile!.]
(vii) (a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent.
_k- • • •
(ix) (a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to:
(3) (A) Have subjected any juvenile to aggravated circumstances.
(B) “Aggravated circumstances” means:
(i) ... [A] determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification [.]
DHS worker. Terri Blanchard testified at the termination hearing. Ms. Blanchard stated that, while S.K. was living with her mother and the sex offender, S.K. had found methamphetamine and drug paraphernalia in the home. Ms. Blanchard testified that because of her history of being exposed to drugs, S.K. had much more knowledge about drugs than a young child should have.
Ms. Blanchard indicated that both of S.K’s parents have longstanding issues with illegal drugs that neither has tried to rectify, and she thought S.K. should not have to wait in foster care and see if her parents get clean. Since the most recent order granting DHS emergency custody in March 2012, both parents had tested positive for THC on multiple occasions, and Mr. Kitchen had also tested positive for benzodiazepines and opiates. Ms. Blanchard testified that neither parent had worked diligently toward reunification or shown a genuine investment, in complying with the case plan or the trial court’s orders. Ms. Blanchard also stated that there has consistently been an issue with both parents being incarcerated. Ms. Blanchard thought that there would be a danger to the health and safety of S.K. if she were returned to her parents’ custody, and Ms. Blanchard recommended termination of parental rights.
IfiMs. Blanchard testified that S.K. is doing very well in the custody of her foster family, and that she is highly adoptable. According to Ms. Blanchard, there was one-hundred percent likelihood that S.K’s foster parents would adopt her if termination were granted.
Both Ms. Arnold and Mr. Kitchen testified at the termination hearing. They had reunited and lived in the same residence, and Mr. Kitchen had full-time employment. Ms. Arnold was unemployed but was seeking disability benefits.. Ms. Ar nold stated that she took responsibility for her drug usage and was seeking help. She objected to termination of her parental rights, stating that she loved her daughter and thought she deserved a second chance. Mr. Kitchen stated that he probably has a problem with marijuana and was willing to get help. He stated that he has also done other drugs, although marijuana and alcohol are his drugs of choice.
In appellants’ counsel’s no-merit brief, she correctly asserts that there can be no meritorious challenge to the sufficiency of the evidence supporting termination. With regard to the best interest of the child, the trial court relied on evidence that returning S.K. to the custody of her parents would subject her to potential harm given her parents’ continued drug use, which has in the past resulted in their arrests and incarceration. The trial court also found based on the testimony of Ms. Blanchard that there was a high likelihood that S.K. would be adopted upon termination.
The trial court found four statutory grounds supporting termination, but only one ground was necessary. See Lee v. Ark Dep’t of Human Servs., 102 Ark.App. 387, 285 S.W.3d 277 (2008). The trial court found, pursuant to Ark.Code Ann. § 9-27-341(b)(3)(B)(ix)(q)(3), j¿hat the parents had subjected S.K. to aggravated circumstances based on its determination that there was little likelihood that services to the family would result in successful reunification. In reaching this conclusion, the trial court relied on the appellants’ positive drug screens as well as their drug-and-alcohol assessments that diagnosed both parents with cannabis and alcohol dependence. The evidence demonstrated that appellants had a lengthy history with DHS that was related to their drug use, resulting in S.K. being in foster care for combined periods of well over two years. While both appellants indicated a willingness to seek treatment for their drug problems, we have recognized that a child’s need for permanency and stability may override a parent’s request to improve his or her circumstances. See Henderson v. Ark Dep’t of Human Servs., 2010 Ark. App. 191, 377 S.W.3d 362. The appellants’ continued use of illegal drugs demonstrated their indifference to remedying the problems that prevented the return of S.K. to their custody. See Carroll v. Ark Dep’t of Human Servs., 85 Ark.App. 255, 148 S.W.3d 780 (2004). Considering the evidence presented, the trial court’s decision terminating the appellant’s parental rights was not clearly erroneous and any appeal challenging the sufficiency of the evidence would be wholly without merit.
As appellants’ counsel explains in her brief, there was only one potential adverse ruling other than the termination itself. After the State rested at the termination hearing, the trial court suggested that the evidence demonstrated an additional statutory ground not pled by DHS in its petition. Specifically, the trial court suggested that there was proof that S.K. had been adjudicated dependent/neglected, had continued outside of her parents’ custody for twelve months, and that despite meaningful DHS efforts the parents had failed to remedy the ^conditions causing removal. The appellants objected to amending the pleadings in this respect unless DHS itself made the motion, and the trial court reserved ruling on the issue. However, at the conclusion of the evidence, DHS made a motion to amend its petition to conform to the proof, and the appellants’ counsel expressed no objection, conceding that DHS had the right to amend its petition and request a finding on that statutory ground. Because appellants’ objection was expressly abandoned, there was no ad verse ruling from which to appeal. Moreover, the statutory ground of aggravated circumstances was contained in DHS’s petition, and that ground was sufficiently established by the proof.
After examining the brief presented, we conclude that appellants’ counsel has complied with our requirements for no-merit cases and that this appeal is wholly without merit. Accordingly, we affirm the order terminating appellants’ parental rights and grant their attorney’s motion to be relieved from representation.
Affirmed; motion granted.
WYNNE and WOOD, JJ„ agree.
. The attorney’s brief and motion to be relieved of counsel were mailed to appellants at the addresses provided by their attorney in the certificate of service. The packet to appellant, Kitchen, was served. The packet to appellant, Arnold, was returned undelivered on February 1, 2013, as “Not at this address.” | [
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DONALD L. CORBIN, Justice.
|!Appellant, Jeffrey Golden, appeals the order of the Faulkner County Circuit Court denying his petition for postconviction relief filed pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure (2012). Our jurisdiction is pursuant to Rule 37 and Arkansas Supreme Court Rule 1 — 2(a)(8) (2012). We cannot say the circuit court’s findings are clearly erroneous, and we affirm the order denying post-conviction relief.
Golden was tried and convicted by a jury of two counts of aggravated robbery, one count of possession of firearms by a felon, and two counts of misdemeanor theft. These convictions were the result of two robberies in Faulkner County. The first was the robbery of a Subway restaurant on August 11, 2006, and the second was a robbery three days later of a Playworld Family Fun Center restaurant and arcade. Golden appealed, contending that the circuit court erred by refusing to admit into evidence a receipt from a movie theater supporting his alibi testimony and by denying his motion for a new trial that was made on the |2basis that the original video recording of the Subway robbery had not been made available to him. The Arkansas Court of Appeals found no merit to either argument on direct appeal and affirmed. Golden v. State, 2009 Ark. App. 632, 2009 WL 3153262.
Golden then filed a petition for postcon-viction relief pursuant to Rule 37, alleging that his trial counsel was ineffective for failing to subpoena witnesses from the movie theater that could authenticate the receipt for movie tickets to support his alibi as to the Subway robbery. The circuit court held a hearing on the petition, and then entered an order denying post-conviction relief on the basis that Golden had failed to establish that trial counsel’s representation fell below the standards set in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, the circuit court’s order stated that, considering the State’s proof at trial and at the hearing that “anyone with access to Golden’s debit card could have generated the receipt and bank transactions, this court cannot find that there is a reasonable probability the jury would have reached a different verdict had counsel subpoenaed the witnesses who testified at the evidentiary hearing.” This appeal followed, where the sole issue being advanced for reversal is that the circuit court’s ruling as to Golden’s demonstration of prejudice on his claim for ineffective assistance of counsel was clearly erroneous.
Prior to reaching the merits of this appeal, we first address Golden’s request to clear up a matter of procedural history. The Playworld robbery was charged, tried, and appealed under the circuit court’s docket number CR 2006-2512. The Subway robbery was charged, tried, and appealed under the circuit court’s docket number CR 2006-2508. Both cases were tried and appealed together. Accordingly, Golden’s petition for postconviction relief was filed |swith respect to both lower-court docket numbers. Soon after the petition was filed, the circuit court entered an order in the Playworld case, CR 2006-2512, denying relief without a hearing. Much later, the circuit court held a hearing in which the only issue discussed was trial counsel’s failure to authenticate the Rave receipt as corroboration of Golden’s alibi to the Subway robbery, case number CR 2006-2508. According to the bar-code sticker appearing on the face of the order, the circuit court then entered the order appealed in the instant appeal in case number CR 2006-2508. Golden’s counsel as serts that he never received notice of the order denying relief in case number CR 2006-2512, and in fact did not know it existed until he discovered it in the record while preparing the brief in this appeal. We acknowledge that there is nothing in that order to indicate it was ever communicated to Golden or his counsel. We also acknowledge that the circuit court’s docket entries, as well as the court reporter’s notation on the front of the transcript, indicate that the postconviction hearing was held with respect to both case numbers. However, as noted, the only issue discussed at the hearing related to the Subway robbery, case number CR 2006-2508. Moreover, there is nothing in the record to indicate that the order denying relief in case number CR 2006-2512 was ever set aside. We therefore deny counsel’s request to set aside in this appeal the circuit court’s order entered in case number CR 2006-2512.
Turning now to our standard of review for this appeal, we note that this court does not reverse the denial of post-conviction relief unless the trial court’s findings are clearly erroneous. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire 14evidence, is left with the definite and firm conviction that a mistake has been made. Id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id. Our standard of review requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland, 466 U.S. 668, 104 S.Ct. 2052. Id.
In asserting ineffective assistance of counsel under Strickland, the petitioner must show that counsel’s performance was deficient. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830. This requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The petitioner claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.
In order to satisfy the second prong of the Strickland test, the petitioner must show that counsel’s deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. In doing so, the petitioner must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
|,r,Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. “[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.” Anderson v. State, 2011 Ark. 488, at 3-4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052).
As his sole point for reversal, Golden contends that the circuit court’s finding of no prejudice was clearly erroneous and “missed the whole point of the evidence” he offered at the hearing — -which he contends was to corroborate the testimony of Golden and his children as to his alibi and to thereby challenge the credibility of the identification and eyewitness testimony against him.
At trial, the State presented a theory that the same person committed three robberies in a very similar manner — the Play-world and Subway robberies in Faulkner County, as well as the robbery of a Dollar General store in Gravel Ridge located in Pulaski County, of which the State introduced evidence under Rule 404(b) of the Arkansas Rules of Evidence. At trial, Golden defended the charges by testifying that he was innocent of all three robberies and by offering alibi testimony and evidence as to the Subway robbery and the Pulaski County robbery. With regard to the Subway robbery, Golden and his two children testified that at the time of the robbery they were attending the movie Talledega Nights at the Rave Theater in Little Rock. Golden testified that through an online promotion he had obtained a voucher for one ticket, and that he used his debit card to purchase two tickets to the 8:15 p.m. | ^showing of the movie. Golden explained that they arrived at the theater in time to attend the 7:45 p.m. showing, that the show ended around 9:30 p.m. or 9:45 p.m., and that they went home after that. Both of Golden’s children testified that they left their home around seven or seven-thirty in the evening, that their father attended the movie with them, and that their father drove them home after the movie. During Golden’s testimony, his trial counsel attempted to introduce a receipt showing that Golden’s debit card was used to purchase two movie tickets and refreshments from the Rave Theater. The circuit court sustained the State’s objection that the receipt was not self-authenticating and that the custodian of the records was not present to authenticate it. As noted, the court of appeals affirmed that ruling on direct appeal. Golden, 2009 Ark. App. 632, 2009 WL 3153262.
In his petition for postconviction relief, Golden alleged that it was ineffective assistance for trial counsel to have failed to call a witness to properly authenticate the receipt and that this failure satisfied the prejudice prong of the Strickland test. At the hearing on Golden’s petition, Golden presented testimony from Cody O’Brien, general manager and keeper of the records of the Rave Theater, who stated that the receipt proffered at trial appeared to be something created in the normal course of business by the Rave Theater. He explained that the receipt showed that a certain credit card was used on August 11, 2006, on two occasions — at 7:26 p.m. for $18.00 to purchase tickets and then approximately one-half hour later to purchase $9.00 worth of refreshments. Also at the hearing, Golden presented the testimony of Carrie Shisler, vice-president of operations and keeper of records for Arvest Bank. During her testimony, records of Golden’s bank account and debit-card transactions were admitted. |7She stated that Golden’s account reflected two transactions to the Rave Theater for $18.00 and $9.00 on August 14, 2011. She explained that it takes several days for transactions to be posted, so it was not surprising to see the August 11 transactions posted three days later on August 14. On cross-examination, Ms. Shisler stated that there was no way for her to know who was actually holding the debit card and making the transaction. This statement on cross-examination was the basis of the circuit court’s ruling that Golden had not demonstrated a reasonable probability that the jury would have reached a different verdict had his trial counsel subpoenaed the witnesses who testified at the postcon-viction hearing.
On appeal, Golden argues that the bank records confirming the same two transactions at the Rave Theater constitute unimpeachable corroboration of the authenticity of the Rave receipt. Golden argues further that the circuit court overlooked the purpose of the receipt proffered at trial, which was to serve as independently generated evidence corroborating the self-serving alibi testimony of Golden and his family. Golden points out that the evidence against him at trial consisted of eyewitness testimony with no physical evidence connecting Golden to the crimes. Citing Perry v. New Hampshire, — U.S. —, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012) and its recognition that eyewitness testimony is fallible, Golden thus argues that his trial counsel’s failure to properly authenticate the receipt deprived him of the ability to challenge the eyewitness testimony and to expose any flaws in the identification of Golden as the perpetrator. Golden emphasizes that, although there was surveillance video of the Subway robbery indicating the robbery occurred at 8:45 p.m., he was not able to test the accuracy of the video because it was never provided to him. Golden emphasizes further that the failure lsto provide the video was decided adversely to him on direct appeal. Accordingly, Golden contends in this appeal that he has therefore satisfied his burden of demonstrating a reasonable probability that the jury’s result would have been different if he had been able to authenticate the Rave receipt at trial and that the circuit court was therefore clearly erroneous in concluding otherwise.
On review, we consider the totality of the evidence and determine whether there is a reasonable probability that the jury would have found reasonable doubt as to Golden’s guilt if his trial counsel had obtained a witness to properly authenticate the Rave receipt. The eyewitness evidence at trial came from the two victims of the two Faulkner County robberies. Jeremy DeVooght, who was the victim at Subway, positively identified Golden from a photographic lineup and in court. Kristen Luyet, the victim at Playworld, also positively identified Golden from a photographic lineup and in court. In addition, Amanda Phelan, the victim of the robbery in Pulaski County, who testified subject to Rule 404(b), also identified Golden from a photographic lineup and in court. The jury heard argument from the State that all three eyewitnesses did not know each other, yet all three identified Golden and testified that the robberies occurred in much the same manner, with a man wearing a baseball cap and sunglasses demanding that money be placed in a vinyl bag while exposing a gun tucked in his pants.
In contrast to the foregoing State evidence, the jury heard the alibi testimony from Golden and his children about their family outing to see Talledega Nights at the Rave during the time the Subway robbery was committed. In addition to this alibi evidence, the jury also Rheard alibi evidence as to the Rule 404(b) robbery at the Dollar General store in Pulaski County. With respect to the Dollar General robbery, the jury heard testimony from Golden; Victoria Golden, his ex-wife; Sue Ann Petrus, the owner of the Sherwood Auto Plaza; and Sandi Myers, a salesperson at the Sherwood Auto Plaza, that Golden was helping his ex-wife purchase a vehicle at the time of the Dollar General robbery. During Ms. Petrus’s testimony, sales documents dated the same date of the Dollar General robbery were introduced into evidence. Ms. Petrus testified that the sales contract had a time stamp indicating it was printed at 5:47 p.m. Although there was State evidence to the effect that the Dollar General was only a few minutes away from the Sherwood Auto Plaza, there was other testimony that the drive between the two places could have taken as long as a half-hour to an hour during the evening rush-hour traffic, which was the time of the Dollar General robbery. Moreover, both Ms. Petrus and Ms. Myers testified that they did not see Golden leave the dealership during the purchase of the vehicle.
It is significant for purposes of our review that the jury found Golden guilty of the two Faulkner County robberies even after hearing the testimony of the owner of the Sherwood Auto Plaza and the salesperson to independently corroborate the alibi testimony of Golden and his ex-wife as to the Pulaski County robbery. The jury heard Golden’s alibi for the Subway robbery, but did not hear the corroborating testimony of the Rave manager and the bank vice-president. Yet, as the circuit court observed, the bank vice-president testified that there was no way to know who was actually holding Golden’s debit card and making the two transactions reflected on the receipt and the bank statement. Thus, the credibility of the | inunheard . testimony corroborating the Subway alibi is subject to some doubt. Given the jury’s apparent disregard of the testimony from the two witnesses from the Sherwood Auto Plaza who corroborated Golden’s alibi for the Dollar General robbery, we simply cannot say that there is a reasonable probability that the jury would have acquitted Golden if they had heard the independently corroborating testimony of the Rave manager and the bank vice-president as to the Subway alibi. Accordingly, we cannot say the circuit court’s finding of a failure to demonstrate Strickland prejudice was clearly erroneous.
The circuit court’s order denying the petition for postconviction relief is affirmed.
HANNAH, C.J., and HART and HOOFMAN, JJ., dissent. | [
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Dickinson, J.,
delivered the opinion of the court:
Wagers, contrary to public policy, that are immoral, or affect the feelings, interests, or characters of third persons, are contrary to sound policy, and are not recoverable in law. In a country where elections are frequent, and free, as in this, every means should be adopted to maintain them pure. Wagers operate on the passions, and influence the parties, by the strongest motives of pecuniary interest, to support, and induce others to’vote for the same person. The freedom of choice and unbiassed action is destroyed. The disposition to select men for their integrity and capacity, no longer exists. And the corrupting influence proceeding from this species of gambling is unfortunately felt, to a very great extent, by every class of society. The consequences resulting from it, are to be deeply deplored: and therefore it is, that the courts uniformly discountenance actions where they are founded in iniquity and injustice. Is the claim of the defendants in error of a character that will permit them to come into court with clean hands and pure consciences, and ask aid in the recovery of a claim for which no consideration has been received? All the parties to the record were participes criminis. Bennett, the partner of Fick-lin, as stake-holder of the notes, was cognizant that they were bet upon an election then pending; and, though both parties had agreed, prior to the result, to rescind the wager and withdraw the notes, Bennett refused to deliver them up. And, notwithstanding Jeffrey notified him that he would not pay it, in any event, he retained possession, and, upon the result of the election, delivered the saddle to Bagley, the winner, and sued Jeffrey upon his note, which was for the payment of the saddle, and obtained judgment in the circuit court, on appeal. Betting upon elections then pending, as calculated to endanger the peace and harmony of society, and to have a corrupting influence upon the public morals, has uniformly been considered as contrary to sound policy; and so it was decided in England, upon a wager on the election of a member to Parliament, 1 T. R. 56, Allen vs. Hearne. The whole doctrine is ably reviewed and sustained in the case of Yates vs. Foot, 12 J. R. 1. As to the character in which the defendants in error stand, Comyn, in his Treatise on Contracts, 30, 46, says, that, “It is a general rule, that if the contract be executed, and both parties in pari delicto, neither of them can recover, from the other, the moneys so paid; but if the contract continues,and the party is desirous of rescinding it, he may do so, and recover back the deposit.” And this distinction is taken in the books,viz: “Where the action is in affirmance of an illegal contract, for the performance of an engagement malum in se, it can in no case be maintained. But where the action is in disaffirmance of such a contract, and, instead of'endeavoring to enforce it, presumes it to be void, and seeks to prevent the defendant from retaining the benefit which he derived from an unlawful act, then it is consonant to the spirit and policy of the law that he should recover.” A stake-holder who pays over money bet upon an election, in opposition to the express notice and order of the better, must do so at his peril; nor can a stake-holder refuse to deliver up the wager, if demanded by the party, before the final result of the election. The contract was executory. The wager probably originated in hasty zeal and the impulse of passion, and when, on cool reflection, they were desirous of rescinding it, Bennett refused to return the stake as, by law, he was bound to do. Having a knowledge of the whole transaction, and the consideration for which the note was given, the circuit court erred in giving judgment in favor of the plaintiff. The judgment is reversed, | [
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Dickinson, J.,
delivered the opinion of the court:
The r.ecord sent up is certified to he full and complete. The parties have raised no question as to its correctness, and, consequently, this Court must take it as true. It is'of no consequence, in the consideration of this case, what steps were taken subsequent to the issuing of the alias writ of attachment; for, by the record, it appears that the Clerk omitted to seal the writ, as is required by the statute. Revised Code, p. 777, sec. 2. And as there was no such appearance by the appellant as cured the want of a seal to the writ, he was not bound to plead or make any defence thereto. Judgment reversed, and case remanded for further proceedings; and the case, upon the return thereof to the Circuit Court, to stand for hearing, as though the appellant had been legally served with a valid writ of summons, more than thirty days prior to the nest term of said Court. | [
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KENNETH S. HIXSON, Judge.
_|jThe appellees, Wayne and Patty Styles (the “Styleses”), own Centerville Dragway (the “raceway”) located near Centerville, Arkansas. The appellant, Susan Annette Ver Weire, was a spectator at a racing event held at the raceway. Ms. Ver Weire sustained a personal injury while spectating at the event. In her complaint, Ms. Ver Weire alleged that the appellees were negligent in their maintenance of the bleachers at the raceway and that said negligence was the proximate cause of her personal injury and damages. Specifically, Ms. Ver Weire alleged that a plank was loose in the bleachers, which caused her to fall four feet and suffer an ankle injury.
The Styleses denied liability and filed a motion for summary judgment, relying on a form release signed by Ms. Ver Weire upon entry into the event that purportedly released the Styleses from any and all liability. The trial court found that the release signed by Ms. Ver |2Weire was enforceable, and it granted summary judgment for the appellees. Ms. Ver Weire now appeals, arguing that summary judgment was erroneously entered and that this case should be reversed and remanded for trial. We agree, and we reverse and remand.
Our supreme court has set forth the standard of review for summary-judgment cases as follows:
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.
Harvest Rice, Inc. v. Fritz & Mertice Lehman Elevator & Dryer, Inc., 365 Ark. 573, 575-76, 231 S.W.3d 720, 723 (2006)(internal citations omitted).
The record shows that, before entering the raceway with her two young nephews, Ms. Ver Weire signed a form release commonly used at racetracks across the country. The release provides as follows:
IN CONSIDERATION of being permitted to enter for any purpose any RESTRICTED AREA (herein defined as including but not limited to the racing surface, pit areas, infield, burn out area, approach area, shut down area, and all walkways, concessions and other areas appurtenant to any area where any activity related to the event shall take place), or being permitted to compete, officiate, observe, work for, or for any purpose participate in any way in the event, EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs, and next of kin, | ^acknowledges, agrees and represents that he has, or will immediately upon entering any of such restricted areas, and will continuously thereafter, inspect such restricted areas and all portions thereof which he enters and with which he comes in contact, and he does further warrant that his entry upon such restricted area or areas and his participation, if any, in the event constitutes an acknowledgment that he has inspected such restricted area and that he finds and accepts the same as being safe and reasonably suited for the purposes of his use, and he further agrees and warrants that if, at any time, he is in or about restricted areas and he feels anything to be unsafe, he will immediately advise the officials of such and will leave the restricted areas:
1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoter, participants, racing association, sanctioning organization or any subdivision thereof, track operator, track owner, officials, car owners, drivers, pit crews, any persons in any restricted area, promoters, sponsors, advertisers, owners and lessees of premises used to conduct the event and each of them, their officers and employees, all for the purposes herein referred to as “releasees,” from all liability to the undersigned, his personal representatives, assigns, heirs, and next of kin for any and all loss or damage, and any claim or demands therefor on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of the releasees or otherwise while the undersigned is in or upon the restricted area, and/or, competing, officiating in, observing, working for, or for any purpose participating in the event;
2. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the releasees and each of them from any loss, liability, damage, or cost they may incur due to the presence of the undersigned in or upon the restricted area or in any way competing, officiating, observing, or working for, or for any purpose participating in the event and whether caused by the negligence of the releasees or otherwise.
3. HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the negligence of releasees or otherwise while in or upon the restricted area and/or while competing, officiating, observing, or working for or for any purpose participating in the event.
EACH OF THE UNDERSIGNED expressly acknowledges and agrees that the activities of the event are very dangerous and involve the risk of serious injury and/or death and/or property damage. EACH OF THE UNDERSIGNED further expressly agrees that the foregoing release, waiver, and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the Province or State in which the event is conducted and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.
LTHE UNDERSIGNED HAS READ AND VOLUNTARILY SIGNS THE RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT, and further agrees that no oral representations, statements or inducements apart from the foregoing written agreement have been made.
In their motion for summary judgment, the Styleses argued that the plain language of this release barred any negligence claims by Ms. Ver Weire regardless of the nature of the negligence.
In her affidavit attached to her reply to the Styleses’ motion for summary judgment, Ms. Ver Weire stated that when she visited the raceway it was her first-ever visit to an automobile-racing event. Her purpose was to provide entertainment to her two nephews, then ages three and seven years. Ms. Ver Weire stated that she had no relationship to the automobile-racing industry, and that her injury occurred as a result of unsafe seating accommodations for spectators as opposed to the dangers associated with racing.
On appeal, Ms. Ver Weire argues that there were unresolved factual issues precluding summary judgment. She contends that these issues included whether she was in a restricted area when the injury occurred, whether the release clearly set forth the negligent liability to be avoided, and whether the release pertained only to the risks associated with racing as opposed to the common duties owed to a business invitee. Ms. Ver Weire also argues that the trial court erred in granting summary judgment because it resulted in an unauthorized misapplication and expansion of our supreme court’s holding in Plant v. Wilbur, 345 Ark. 487, 47 S.W.3d 889 (2001). Ms. Ver Weire submits that to construe the release as broadly as the trial court did would impermissibly exonerate the appellees and the racing industry in general |fifrom all liability anywhere on their grounds. We agree that summary judgment was inappropriate under these circumstances.
The release at issue in this case is an exculpatory contract, which is a contract by which a party seeks to absolve himself in advance of the consequences of his own negligence. Finagin v. Ark. Dev. Fin. Auth., 355 Ark. 440, 139 S.W.3d 797 (2003). When we are reviewing such a contract, we are not restricted to the literal language of the contract, and we will also consider the facts and circumstances surrounding the execution of the release in order to determine the intent of the parties. Id.
In Plant, supra, the appellant was injured by some flying debris while watching an auto race at the Northwest Arkansas Speedway, and he filed a negligence action against the owners. The appellant in that case had signed a release identical to the release at issue in the case at bar, and the appellee owners were granted summary judgment. Our supreme court affirmed the summary judgment, holding that the release was enforceable under the particular circumstances presented in that case.
In Plant, supra, the supreme court made the following observations about exculpatory contracts:
It is true that this court has long stated a strong disfavor for exculpatory contracts that exempt a party from liability, because of the public-policy concern encouraging the exercise of care. This court has further stated that exculpatory contracts are to be strictly construed against the party relying on them.
While this court disfavors exculpatory contracts, it has never ruled that such contracts are invalid per se. When construing such release contracts, this court has said that it is not impossible to avoid liability for negligence through contract; however, to avoid |6such liability, the contract must at least clearly set out what negligent liability is to be avoided.
345 Ark. at 493, 47 S.W.3d at 893 (citations omitted).
The supreme court in Plant noted that it had never before been presented with a situation where a release was executed in the context of a dangerous recreational activity. In reaching its decision, the supreme court was persuaded by the Eighth Circuit Court of Appeals’ analysis in Haines v. St. Charles Speedway, Inc., 874 F.2d 572 (8th Cir.1989), where the federal appeals court analyzed the validity of an identical release under a “total transaction” approach, as opposed to simply reviewing the literal language in the release, in order to determine the intent of the parties. In Haines, the appeals court held that the release was valid against the negligence claims of a race-car owner who was struck by his own car in the infield while attempting to start the car.
The appellant in Plant, supra, was a member of the pit crew for one of the drivers who raced at the speedway, and he was standing on a track compactor located where the cars exited the track when he was struck by a wheel and a tire that had become dislodged from one of the race cars. The supreme court considered the following facts and circumstances in holding that the release was valid and summary judgment appropriate:
Plant was a regular participant in auto races and admitted to having frequented the Speedway. He also stated that he had signed the exact same release form on at least twelve prior occasions. Plant has made no allegations that he was forced to sign the release, and he admitted that he never asked any questions regarding the contents of the document he was signing. Moreover, Plant was familiar with the pit area and its proximity to the racetrack. He stated that he was only in the pit area when his team’s car was racing, and that when he was there as a mere spectator, he stayed in the grandstand area. More importantly, as a participant, Plant was certainly familiar with the dangers inherent in the sport of auto racing. In fact, he admitted to having 17witnessed numerous wrecks that occurred during racing events. With this knowledge, Plant continued to voluntarily participate in this activity.
345 Ark. at 494-95, 47 S.W.3d at 894.
In the present case, the Styleses rely on our supreme court’s holding in Plant, supra, and assert that the release signed by Ms. Ver Weire has previously been upheld as a valid exculpatory contract. The Styleses contend that the release unambiguously applies to personal injuries occurring as a result of any negligence of racetrack owners on their property, regardless of whether the injury was related to the inherent dangers of racing. However, it is apparent to this court that the circumstances in Plant are clearly distinguishable from those present in this case, and that to affirm the trial court’s decision herein would be an unnecessary and unwarranted expansion of the supreme court’s holding in Plant.
The supreme court in Plant began its analysis by expressing its disfavor for exculpatory contracts because of the public-policy concern encouraging the exercise of care and stating that such contracts are strictly construed against the party relying on them. The release involved in Plant, and in the present case, provides in part that the undersigned “expressly acknowledges and agrees that the activities of the event are very dangerous and involve the risk of serious injury and/or death and/or property damage.” In Plant, the injury was to a pitcrew member, and in Haines, the injury was to a race-car owner, and both injuries were directly related to the inherent dangers associated with automobile racing. Under the particular circumstances in Plant, and despite the supreme court’s general disfavor for exculpatory contracts, the supreme court held that the release was valid. But Plant carved out only a narrow exception.
|RThe circumstances of the present case are entirely different. Ms. Ver Weire’s negligence claims are completely unrelated to the unique and obvious dangers associated with automobile racing, as the claims relate only to the lack of care in maintaining safe bleachers for the ticket-purchasing spectators in attendance. Absent the release agreement, Ms. Ver Weire was a business invitee of the appellees and therefore, the appellees owed Ms. Ver Weire the duty to maintain the premises in a reasonably safe condition. See House v. Wal-Mart Stores, Inc., 316 Ark. 221, 872 S.W.2d 52 (1994). Adhering to our supreme court’s public-policy concern encouraging the exercise of due care, we hold under these facts that the release was inapplicable and did not insulate the appel-lees from the negligence claimed by Ms. Ver Weire. The protection from liability as contemplated by such a release must be limited to injuries that are rationally associated with the dangerous nature of the activity. To hold otherwise would be to grant a carte blanche release to a racetrack owner from the exercise of due care related to every aspect of its operation, thus insulating it from all premises-liability actions. This case is a clear and pointed example of why the supreme court determined that the “total transaction” approach for reviewing exculpatory contracts is proper.
For these reasons, we hold that the release relied upon in this ease by the appellees does not operate as a bar to the appellant’s cause of action for injuries and damages proximately caused by the negligence of the appellees to properly maintain the bleachers. We reverse the summary judgment entered in favor of the appellees, and we remand for trial.
Reversed and remanded.
GRUBER and VAUGHT, JJ., agree. | [
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BRANDON J. HARRISON, Judge.
|xThe State charged Terrance Duggar with violating multiple drug-related statutes. A jury found Duggar guilty of a lesser-included offense: possessing at least four ounces but less than ten pounds of marijuana, which is a Class D felony. Ark. Code Ann. § 5 — 64—419(b)(5)(iii) (Supp. 2011). He was acquitted on all other charges. The circuit court’s final sentencing order sentenced Duggar to seventy-two months in the Arkansas Department of Correction and fined him $10,000 dollars. Duggar appeals that order on two grounds: the circuit court mistakenly admitted marijuana into evidence because there were missing links in the chain of custody, and there was insufficient evidence to support his conviction. We affirm on both points.
|2I. There was Sufficient Evidence that Duggar Constructively Possessed Marijuana
We address Duggar’s insufficient-evidence argument first. Boldin v. State, 373 Ark. 295, 297, 283 S.W.3d 565, 567 (2008). We will concentrate on State’s Exhibit No. 4 because the other amounts of marijuana that the court admitted into evidence— Exhibit Nos. 1 and 7 — do not cumulatively add up to the statutory minimum weight of four ounces. Ark.Code Ann. § 5-64-419(b)(5)(iii).
In a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the State and consider only the evidence that supports the conviction. Cluck v. State, 365 Ark. 166, 170, 226 S.W.3d 780, 783 (2006). We must affirm the jury’s verdict if it is supported by substantial evidence, which is proof that compels or forces a reasonable mind to move past conjecture or speculation. Id. To preserve a challenge to the sufficiency of the evidence, Duggar must have made a specific motion for a directed verdict at the close of the State’s case that advised the circuit court of the exact element of the crime the State failed to prove. Conley v. State, 2011 Ark.App. 597, 385 S.W.3d 875; Ark. R.Crim. P. 33.1 (2012). He did so. Duggar renewed his motion again at the close of all the evidence. On appeal, Duggar again argues that the State did not present sufficient evidence that he constructively possessed contraband.
In August 2011, law enforcement converged upon a house located at 10900 Birchwood Drive in Little Rock and executed a search warrant. Duggar and another person named Larry Hatchett were in the house when police entered. Duggar was arrested and charged with violating Ark.Code Ann. §§ 5-64-436, 5-64A02, and 5-64-443 because a number of bags of marijuana, baggies, and a scale were found in the house while Duggar was [sthere. Duggar took his case to trial before a Pulaski County jury.
During the March 2012 jury trial, Little Rock Police Detective John Wesley Lott testified that when he entered the house he saw several large bags of marijuana in the corner of the dining room and kitchen area; Duggar was on the floor facing the bags. (SWAT Team members entered the house first to take control and ensure everyone’s safety.) Detective Lott did not, however, see “with [his] own eyes where [Duggar] was when the SWAT Team hit that door.” Detective Charles Weaver, also of the Little Rock Police Department, testified during the trial that the house had a “big open floor plan” and that Dug-gar was on the floor next to the kitchen table when he entered the house. According to Detective Weaver, a number of bags of marijuana were located three or four feet from the kitchen table. Detective Lott identified State’s Exhibit No. 4 as being the six bags of marijuana that were located three to five feet to the left of the table, “in plain view of the kitchen.”
The police also found letters addressed to Duggar in the northwest bedroom of the house — another letter with Duggar’s name and the Birchwood address on the return label was found elsewhere inside the house. The record is silent on who actually owned or leased the property, but Detective Lott said during the trial that “Mr. Duggar gave [me] the address of the [Birchwood Drive] house as his address.”
On appeal, Duggar contends that the State did not sufficiently prove that he constructively possessed the marijuana. To prove constructive possession, the State must establish that Duggar exercised care, control, and management over the marijuana. McKenzie v. State, 362 Ark. 257, 262-63, 208 S.W.3d 173, 175 (2005). Constructive possession may be established by circumstantial evidence. Duggar argues that the State failed to connect him to |4the marijuana because the letters addressed to him do not establish the necessary legal link. And he asserts that the other evidence the police gathered was insufficient and unreliable because there were no fingerprints or photographs taken, the police did not investigate who leased the residence, and the utility bills were in someone else’s name. Finally, Duggar says that defense witness James Tim’s testimony that the marijuana was his, and not Dug-gar’s, is “far more reliable than any evidence presented by the State and calls for a reversal of [Duggar’s] conviction.”
These arguments do not persuade us to reverse. The jury was responsible for weighing and crediting the evidence in this case. Tatum v. State, 2011 Ark. App. 83, at 6, 380 S.W.3d 519, 523. Substantial evidence supports the jury’s verdict because it could have reasonably inferred that Duggar constructively possessed the marijuana.
These facts are strikingly similar to a case we decided not long ago, where we upheld a drug-related conviction. Allen v. State, 2010 Ark. App. 266, 2010 WL 1233830 (the jury could reasonably infer constructive possession of a controlled substance when the substance was found in the kitchen, the defendant gave the police the address of the scene as his resident address, and defendant received mail at the address). The bottom line is that the jury was not required to speculate to find that Duggar constructively possessed contraband. That another person (Larry Hatchett) was present in the house when the police raided it does not require us to reverse. Something |smore than Duggar’s presence in the house is required to establish constructive possession — the “something more” may be the proximity to the marijuana, law enforcement’s ability to see the contraband in plain view, and whether Duggar owned the house where the marijuana was found. Id. That the marijuana was found in a common area of the house helps the State establish constructive possession of contraband. McDaniel v. State, 2011 Ark. App. 677, at 4, 2011 WL 5430112. Add this to the detectives’ testimony that the marijuana was near Dug-gar, that he told a detective that he lived in the Birchwood house, and that Duggar had some mail inside the house, and it becomes clear that the jury had sufficient evidence to find that Duggar constructively possessed contraband. Regarding Tim’s testimony, it does not require us to reverse Duggar’s conviction because the jury was free to believe or to reject Tim’s statement that he, not Duggar, owned the marijuana, Loggins v. State, 2010 Ark. 414, at 5, 372 S.W.3d 785, 790 (holding that circumstantial evidence of drug possession and witness credibility are issues for the jury and not the court). We hold that there was sufficient evidence for reasonable minds to conclude that Duggar possessed the marijuana under section 4-64-419(b)(5)(iii).
II. There was No Meaningful Break in the Chain of Custody
The crux of Duggar’s attack on the chain of custody concerns State’s Exhibit No. 4. He argues that the circuit court erred when it admitted Exhibit No. 4 because the State did not sufficiently establish chain of custody over the marijuana at trial.
We will not reverse the circuit court’s evidentiary ruling on Exhibit No. 4’s admissibility absent an abuse of discretion and a showing that it prejudiced Dug-gar. Guydon v. State, 344 Ark. 251, 255, 39 S.W.3d 767, 770 (2001). Duggar would have been prejudiced |fiby an erroneous admission of Exhibit No. 4 because, as we have said, without that exhibit the State could not have satisfied the threshold amount of contraband needed to convict under section 4-64-419. The problem for Duggar’s appeal is that the circuit court did not abuse its discretion in admitting Exhibit No. 4 in the first place. A court abuses its discretion when it acts thoughtlessly or without due consideration. Id. That did not happen here.
We return to Detectives Lott and Weaver, who testified that they saw (in plain view) several large bags of marijuana sitting out in the kitchen and dining area when they entered the house. Detective Lott — who was the property officer at the scene when the search warrant was executed at the Birehwood house — said that the bags weighed approximately five pounds. He tagged and logged all the evidence on an inventory form; he then placed the evidence in lockup according to police procedures. Detective Lott identified the inventory tag on State’s Exhibit No. 4 at trial, and he described the exhibit as being the six bags of marijuana he recovered from the house. He specifically said that he had placed the six bags of marijuana into the large, clear bag labeled State’s Exhibit No. 4. The jury saw the exhibit.
Julie Hathcock, a forensic chemist at the Arkansas State Crime Lab, testified for the State. (Duggar did not challenge her credentials.) Hathcock said that the crime lab where she works received all six items from Duggar’s case under seal and in a box. Hathcock testified that Exhibit No. 4 was sealed when she first contacted it. She also said that all the tag numbers (which the police department assigned) and the submission-sheet numbers (which the crime lab assigned) matched. Hath-cock unequivocally confirmed at trial that Exhibit No. 4 was substantially in the same condition as when she had first received it at the crime lab.
|7On cross-examination, Hathcock said that Exhibit No. 4 contained six bags, and one of the bags contained three zippered zip-locks that she had labeled A-C. Exhibit No. 4 also contained two additional heat-sealed bags — and each heat-sealed bag had zippered zip-locks. Hathcock labeled the two heat-sealed bags D and E. Exhibit No. 4 also contained one zip-lock bag that itself contained five tied plastic bags. Each of those bags she labeled F through J. While in the lab, Hathcock took the marijuana out of the packages, aggregated it, and weighed it. The marijuana that was Exhibit No. 4 weighed 2,366.9 grams. Tests performed on each of the ten samples confirmed that Exhibit No. 4’s content was marijuana. The bottom line is that Hath-cock testified that Exhibit No. 4 contained ten different bags of marijuana and the exhibit’s total cumulative weight was 5.218 pounds of marijuana.
Our supreme court has said establishing the chain of custody for interchangeable items (like drugs) must be more conclusive than for other items. Crisco v. State, 328 Ark. 388, 392, 943 S.W.2d 582, 585 (1997). The mere possibility that someone can access the contraband is not enough to render test results inadmissible; some evidence of tampering is also required. Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006); Washington v. State, 2010 Ark. App. 596, 377 S.W.3d 518. Minor flaws in chain-of-custody proof are matters that defense counsel may argue to the jury and which the jury may weigh in its deliberations. Green, 365 Ark. at 478, 231 S.W.3d at 638. They do not mean the evidence is inadmissible as a matter of law. Id.
Minor uncertainties, legally speaking, is what Duggar presents on appeal. He says that Detective Lott said Exhibit No. 4 was composed of six bags, a significantly different number from Hathcock’s tale of ten bags. Duggar wants the marijuana excluded because “[i]t is unclear whether additional marijuana had been added to State’s Exhibit No. 4 between the time of | ¡^seizure and testing by the State Crime Lab.” He says this difference in bag numbers and whether more marijuana was added while Exhibit No. 4 was in transit is important because the weight of the marijuana was a factor to be considered by the jury. Duggar relies on Crisco v. State to support his exclusionary argument. 328 Ark. 388, 389, 943 S.W.2d 582, 583 (1997). There, our supreme court held that the State was required to do more than “merely trace the route of the envelope containing the substance” when the “marked difference” between the officer’s description of the contraband (white powder) and the chemist’s description of it (tan rock-like substance) created a “significant possibility” that the evidence tested, and the evidence gathered, were different substances.
This case is not like Crisco. Here, the jury arguably heard conflicting testimony on the number of bags that Exhibit No. 4 contained (six bags versus ten bags). But the conflict is not pivotal given all the testimony. Hathcock explained on cross-examination why the six bags were actually ten. The jury was permitted to conclude that Hathcock had provided a rational explanation of the difference between her numbering scheme and Detective Lott’s. The differences between Detective Lott’s descriptions and Hathcock’s descriptions on the quantity and weight of the marijuana were minor discrepancies that the jury could consider and weigh as the parties made their cases. Our case law so holds. See Guydon v. State, 344 Ark. 251, 258, 39 S.W.3d 767, 771 (2001) (minor discrepancy in weights did not raise a reasonable probability that a break in chain of custody had occurred); see also Jones v. State, 82 Ark.App. 229, 232, 105 S.W.3d 835, 837 (2003) (no abuse of discretion in admitting drugs when the weight difference between the police officer’s calculations (59 pounds) and the chemist’s calculations (42 pounds) was explained by the officer).
13Puggar also complains that Detective Lott did not testify that he took all the marijuana exhibits to the crime lab. The detective said that he sent Exhibit Nos. 2 and 3 to the crime lab. Exhibit Nos. 2 and 3 were digital scales. He did not say that he took Exhibit No. 4 to the lab. Detective Lott said, however, he put all the evidence that was collected at the scene in lockup at the police station. Although Hathcock testified that the evidence was sealed when she first saw it, Detective Lott did not say that he put his initials or that he sealed the evidence when he put it in lockup. Nor was there any testimony on who signed for, and received, Exhibit No. 4 when it first arrived at the crime lab. In fact, we have not found any testimony in the record that precisely explains how Exhibit 4 got from the Birchwood house to the crime lab.
The questions of who took the evidence from the police station to the crime lab and who first received it at the crime lab do not, in this case, break the chain of custody because what Duggar needed to establish was that Exhibit No. 4 had been tampered with or adulterated in some way. We have no such evidence before us. E.g., Owens v. State, 2011 Ark. App. 763, 387 S.W.3d 250 (circuit court did not err in admitting items although no one could say how the evidence got from the scene of the stop to the evidence locker and there was no evidence of tampering); Tatum v. State, 2011 Ark. App. 83, at 8, 380 S.W.3d 519, 524 (testimony from police officer who retrieved the drugs from the crime lab was not essential to chain of custody). Duggar has not mentioned any facts that support his allegation that marijuana may have been added to State’s Exhibit No. 4 between the time the police department seized it and the Arkansas State Crime Lab tested it. But the State presented documentary and testimonial evidence on the contents and whereabouts of Exhibit No. 4 and that reasonable precautions 110were taken against the risk of adulteration or contamination. Butler v. State, 303 Ark. 380, 387, 797 S.W.2d 435, 439 (1990).
The State need not eliminate every possibility of tampering. Instead, the circuit court need only be satisfied that, in all reasonable probability, the evidence was not tampered with. Hawkins v. State, 81 Ark.App. 479, 483,105 S.W.3d 397, 399-400 (2003). The court was so satisfied. We are too, given the lack of any proof or argument from Duggar that tampering had occurred. The bags of marijuana appeared to be in the same condition and contain the same amount and the same substance (green and leafy) from the time they were taken from the house until they were introduced at trial as Exhibit No. 4. We therefore hold that the court did not abuse its discretion in admitting Exhibit No. 4 as evidence against Duggar’s legal interests. Because we hold that State’s Exhibit No. 4 was properly admitted, we need not address Duggar’s arguments pertaining to State’s Exhibit Nos. 1 and 7.
Duggar’s conviction is affirmed.
Affirmed.
WYNNE and GRUBER, JJ„ agree. | [
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KENNETH S. HIXSON, Judge.
hln this case involving priority of liens and lender liability, appellants James Newsom and Kevin Roberts each appeal from two orders of the Ashley County Circuit Court. Newsom and Roberts asserted separate causes of action against appellee Rabo Agrifinance, Inc. (Rabo). Newsom argues that the court erred in finding that Rabo had a valid, perfected lien in certain crop proceeds that was superior to his equitable lien. Roberts seeks reversal of |2a summary judgment entered against him on his lender-liability claim against Rabo. We affirm both orders.
I. Background
Newsom was an experienced farmer with farming operations in Mississippi. Roberts was an experienced farmer with farming operations in Indiana, Louisiana, and Tennessee. Newsom and Roberts were unacquainted and neither had farmed in Arkansas. In the fall of 2009, Roberts began discussions with Rabo to obtain refinancing of the existing lines of credit on his farming operations.
Roberts and Newsom were introduced to each other by a mutual acquaintance. Despite being only recently acquainted, Newsom and Roberts orally agreed to farm approximately 5,100 acres of corn and soybeans in Ashley and Chicot Counties in Arkansas, and split the profits. They worked up a budget and determined that it would cost one million dollars to finance the venture. Newsom advised Roberts that he (Newsom) could not provide any capital but that he would provide certain labor, equipment, and expertise. Roberts agreed, and his primary part of the bargain was to provide the one million dollars in capital. Roberts was still discussing re-financing his existing line of credit with Rabo and notified Rabo that he would be conducting a farming operation in Arkansas as well as other states. Roberts requested that Rabo increase his loan application to include the money necessary to finance the new Arkansas farming operation. There is no evidence that Rabo knew of Newsom’s participation in the venture.
Is As the March 2010 planting season approached, Roberts had not yet secured financing from Rabo. According to Roberts, he had been assured by Rabo’s relationship manager, Jim Etienne, that the loan was going to close and that he need not seek financing elsewhere. Unfortunately, while Roberts awaited Rabo’s decision, it was time to prepare the soil and plant the crops in Arkansas. Despite their agreement to the contrary, Newsom began expending money to get the crops in the ground.
On April 16, 2010, Roberts and his group of companies submitted a formal loan application to Rabo seeking $5,900,000. According to the application, substantial portions of the funds were earmarked to pay existing debts unrelated to the Arkansas operation. The application referred to potential collateral as a first lien on “growing/to be grown crops, including, but not limited to corn [and] soybeans....” No specific mention was made of the Arkansas crops in the description of the collateral. However, the Arkansas operation was listed in the Business and Management Overview of the loan application.
Rabo denied the loan to Roberts on April 21, 2010. While Roberts searched for alternative financing, Newsom continued to incur expenses in planting and tending the crops. During this time, Roberts formed ABLS Crop Pro Farm Partnership for the purposes of farming the Arkansas land and allowing the venture to participate in federal Farm Service Agency (FSA) programs. ABLS’s principal place of business was listed as Barretville, Tennessee, but Roberts and Newsom were not listed as partners. Instead, the agreement | ¿named four friends or associates of Roberts as partners, apparently to maintain eligibility for the government programs.
By June 2010, Roberts still had not obtained other financing. He therefore hired an attorney to demand that Rabo provide immediate financing on the ground that it had wrongfully denied the $5,900,000 loan two months earlier. The attorney informed Rabo in writing that Roberts would pursue litigation unless a “quicker and more effective resolution” could be reached. There followed approximately two weeks of negotiations between attorneys for Rabo and Roberts in which the parties went back and forth on the amount and terms of a possible loan. In early July 2010, they reached an agreement. As a result, Roberts submitted applications for a $1,472,590 loan, reflecting that the money would finance his operating expenses in Arkansas, Louisiana, Tennessee, and Indiana. The applications also contained language that Rabo would take either a “second lien” or “best lien available” on growing/to be grown crops, based on Rabo’s belief that another financing company had a superior lien.
On July 9, 2010, Rabo approved the $1,472,590 loan. Roberts and his companies, including ABLS, executed credit agreements that contained clauses in which they waived and released all claims against Rabo pertaining to any acts or omissions predating the agreements. Rabo contemporaneously filed a Uniform Commercial Code (UCC) financing statement with the Arkansas Secretary of State containing a description of the collateral.
Rabo disbursed the loan money to various companies, many of which were not associated with the Arkansas venture. According to Roberts, some of the money was directed to suppliers used in the Arkansas farming operation. Even with this alleged cash infusion, [^however, Newsom had expended approximately $769,000 on the Arkansas crops by this point.
On July 26, 2010, Newsom filed a petition in Ashley County Circuit Court naming Roberts, ABLS, and Rabo as defendants. Newsom alleged that Roberts and ABLS were liable for attempting to mortgage the crops and for failing to provide the agreed one million dollars in joint-venture capital. Newsom asked the court to impress an equitable lien on the crops for the amount of his crop-related expenses; to declare that Rabo did not have a valid lien in the crops or, alternatively, that Rabo’s lien was inferior to his equitable lien; to restrain Roberts and ABLS from harvesting the crops; and to appoint a receiver to sell the crops and account for the receipts. A receiver was subsequently appointed and eventually held $885,958.30 in crop proceeds.
Rabo answered Newsom’s complaint generally denying the allegations and alleged that its lien was perfected and superior to Newsom’s equitable lien. Rabo also filed a cross-claim against Roberts for amounts past due on the $1,472,590 loan, asserting its security interest in the crop proceeds to satisfy the loan. Roberts filed a cross-claim against Rabo for breach of contract, promissory estoppel, deceit, economic duress, fraud, and negligent supervision based on Rabo’s denial of the original $5,900,000 loan (hereafter, referred to as “the lender-liability claim”).
| (¡The issues were thus joined, although Newsom’s and Rabo’s claims against Roberts were resolved without controversy. They obtained judgments against Roberts for approximately $883,000 and $1,400,000 respectively. The active issues to be resolved by the circuit court were twofold: 1) who, as between Newsom and Rabo, was entitled to the crop proceeds to satisfy their respective liens; and 2) could Roberts recover against Rabo on his lender-liability claim.
Following a bench trial, the circuit court ruled that Rabo had a valid and enforceable lien on the crop proceeds, that New-som had an equitable hen on the proceeds, and that Rabo’s lien was superior. Further, the court granted summary judgment to Rabo on Roberts’s lender-liability claim based on the waiver and release contained in the credit agreements. Newsom and Roberts each filed notices of appeal from the court’s rulings, and this appeal followed.
II. Newsom’s appeal
Newsom argues first that Rabo’s lien in the Arkansas crops was not perfected because the description of collateral in Rabo’s financing statement was inadequate. The circuit court found that the description met the requirements of the UCC. We find no clear error in the court’s ruling.
A secured creditor may perfect its security interest in collateral by filing a financing statement. Ark.Code Ann. § 4-9-310(a) (Supp.2011). A financing statement must contain the debtor’s and secured parly’s names and must “indicate” the collateral. Ark.Code Ann. § 4-9-502(a) (Repl. 2001). Collateral is sufficiently indicated if it is described pursuant to |7Arkansas Code Annotated section 4-9-108 (Repl. 2001), or if the financing statement provides an indication that it “covers all assets or all personal property.” Ark.Code Ann. § 4-9-504 (Repl.2001).
The basic tenet of section 4-9-108 is that a description of collateral is sufficient, whether or not it is specific, if it “reasonably identifies” what is described. A description reasonably identifies collateral if it identifies it by:
(1) specific listing;
(2) category;
(3) except as otherwise provided in subsection (e) [not applicable here], a type of collateral defined in the Uniform Commercial Code;
(4) quantity;
(5) computational or allocational formula or procedure; or
(6) except as otherwise provided in subsection (c) [not applicable here], any other method, if the identity of the collateral is objectively determinable.
Ark.Code Ann. § 4 — 9—108(b). Our court has interpreted “reasonably identify” to mean that the description does the job assigned to it, ie., makes possible the identification of the thing described. First Nat’l Bank of Lewisville v. Bank of Bradley, 80 Ark.App. 368, 96 S.W.3d 773 (2003). The law pertaining to description of collateral applies to crops as well as other types of property. The adequacy of a description in a financing statement is a question of fact that will be affirmed unless clearly erroneous. Id.
| sRabo’s July 9, 2010 financing statement listed the names and addresses of the debtors, including Roberts and ABLS; listed the name and address of the creditor, Rabo; and included the following description of collateral:
ALL SOYBEAN SEED, ALL CROPS GROWN, GROWING OR TO BE GROWN, ALL CROP INSURANCE AND ALL RIGHTS TO PAYMENTS THEREUNDER, ALL EQUIPMENT, ALL FIXTURES, AND SUPPLIES USED OR PRODUCED IN THE FARMING OPERATION OF KEVIN ROBERTS, MUDDCREEK RIVER FARMS, INC., A TN CORPORATION, DEATON RIVER FARMS, INC., A TN CORPORATION, WILLOUGHBY RIVER FARMS, INC., A TN CORPORATION, SAVANNAH RIVER FARMS, INC., A TN CORPORATION, RIVERFRONT SAVANNAH FARMS PARTNERSHIP, A TN GENERAL PARTNERSHIP, ABLS CROP PRO FARM PARTNERSHIP, A TN GENERAL PARTNERSHIP, AND, HICKORY RIDGE FARMS, LLC, AN INLIMIT-ED [sic] LIABILITY COMPANY WITH RESPECT TO THOSE CROP [sic] AND PRODUCTS OF THOSE CROPS IN THEIR UNMANUFAC-TURED STATE; SUPPORTING OBLIGATIONS [.]
Newsom argues that this description could not be used to identify the Arkansas crops as collateral. While the description is broad and makes no specific mention of the site of the Arkansas crops, we agree with the circuit court that it conforms to UCC requirements. The description designates the collateral by category (crops) as permitted by section 4-9-108(b)(2). And, while it does not specifically place the crops in Ashley and Chicot Counties, such exactitude is not required under the current version of the UCC, adopted in 2001. The UCC financing statement is a bare-bones document, as evidenced by the fact that collateral may be described by simply indicating that it covers all assets or all personal property. Ark.Code. Ann. § 4-9-504(2). Accordingly, a description of collateral need not enable a stranger to select the property — in other words, it need not be fully self-explanatory. It is sufficient if it will enable third parties, aided by inquiries that the instrument itself suggests, to identify the | ¡property. Bank of Lewisville, supra. The onus is on the subsequent lender to seek out what information he needs. Id.
The financing statement in the case at bar reveals that Rabo’s collateral consists of crops produced by, among others, Roberts and ABLS in their farming operations. The statement also suggests that, because it was filed in Arkansas, those crops are located on Arkansas land. This, along with the name of the secured lender, would provide a third party with sufficient inquiry notice to locate the Arkansas crops. We recognized in Bank of Lewis-ville that commentators envision an inquiring party’s contacting the secured lender to obtain further information. Moreover, there is no evidence in this case that New-som conducted an unsuccessful inquiry pri- or to providing funding.
Newsom argues further that an inquiry would be hampered by the fact that Rabo’s initial financing statement incorrectly listed ABLS’s address as Barretville, Indiana, rather than Barretville, Tennessee (Rabo made the correction in an amended filing). Again, under the circumstances of this case, Newsom’s ability to inquire was not affected, given his association with Roberts and his partnership in the Arkansas operation.
Newsom argues next that Rabo’s lien was invalid because “ABLS did not own the collateral or an interest in the collateral.” Roberts, however, was listed as a debtor on both the security agreement and the financing statement, and he had an interest in the crops as a |inpartner with Newsom. There was also evidence that some of the loan proceeds went into the Arkansas farming operation. We therefore see no basis for reversal on this point.
Newsom’s final argument is that fairness, justice, and equity require that Rabo’s UCC lien in the crop proceeds be subordinated to his equitable lien. An equitable lien is a right to have a demand satisfied from a particular fund or specific property. C.A.R. Transp. Brokerage Co., Inc. v. Seay, 369 Ark. 354, 255 S.W.3d 445 (2007). It may arise, independently of any express agreement, by implication from the conduct or dealings of the parties. Mitchell v. Mitchell, 28 Ark.App. 295, 773 5.W.2d 853 (1989). In the absence of an express contract, an equitable lien may be based on equitable maxims and arise by implication out of general considerations of right and justice where, as applied to the relations of the parties and the circumstances of their dealings, there is some obligation or duty to be enforced. See id. However, the tendency is to limit such liens, and they will not be enforced where the circumstances present no ground for equitable relief and there is an adequate remedy at law. Id.
Newsom essentially contends that, if his equitable lien is not permitted to prime Rabo’s lien, Rabo will be unjustly enriched. Courts in other jurisdictions have recognized that, in rare instances, an unsecured lienholder such as Newsom may prevail over a perfected, secured lienholder on grounds of equity and unjust enrichment. See, e.g., Knox v. Phoenix Leasing, Inc., 29 Cal.App.4th 1357, 35 Cal.Rptr.2d 141 (1994); Ninth Dist. Prod. Credit Ass’n v. Ed Duggan, Inc., 821 P.2d 788 (Colo.1991); Peterson v. Midland Nat’l Bank, 242 Kan. 266, 747 P.2d 159 (1987). Those cases, however, carefully limit this equitable doctrine to situations in which the secured party engaged in egregious or fraudulent conduct, or the unsecured party, with the knowledge or participation of the secured party, made contributions that preserved the collateral. Assuming arguendo that under certain circumstances an equitable lien could prime a perfected security interest, we determine here the circuit court did not clearly err by according priority to Rabo. Simmons First Bank of Ark. v. Bob Callahan Servs., Inc., 340 Ark. 692, 13 S.W.3d 570 (2000); Feagin v. Jackson, 2012 Ark. App. 306, 419 S.W.3d 29 (clearly erroneous standard). Rabo engaged in no egregious or fraudulent conduct. It made a loan and took a security lien on crops via a lending transaction with Roberts. It then perfected its lien under the UCC, all before becoming aware of Newsom’s involvement and his desire to assert a lien. Although Newsom planted and grew the crops using his own resources, there is no evidence that Rabo participated in or encouraged Newsom’s efforts, or made them necessary. To be unjustly enriched, a party must have received something of value to which he was not entitled and which he should restore. Adkinson v. Kilgore, 62 Ark.App. 247, 970 S.W.2d 327 (1998). Here, Rabo did as it was entitled to do under the law.
Newsom argues further that Rabo knew it could only expect a second lien on the crops. Newsom is referring to the second loan application, in which it was stated that Rabo would have a second lien or best lien available due to the claims of another cred itor. That creditor, ' however, was not Newsom. In any event, whatever Rabo’s subjective expectations 112at the time of the loan application, its security interest was in fact first in priority in the Arkansas crops.
In light of the foregoing, we affirm the circuit court’s decision to grant Rabo priority in the crop proceeds.
III. Roberts’s Appeal
Roberts argues that the circuit court erred in granting summary judgment on his lender-liability claim. The court ruled that Roberts’s claim was precluded by the following release that Roberts signed in conjunction with his credit agreements with Rabo:
WAIVER OF PRIOR CLAIMS. BORROWER WAIVES AND RELEASES ANY AND ALL CLAIMS AGAINST LENDER ... RELATING OR PERTAINING TO OR AS A RESULT OF ANY ACT OR OMISSION WHICH HAS OCCURRED PRIOR TO THE EXECUTION OF THIS AGREEMENT, INCLUDING ALL CLAIMS OF USURY, FRAUD, DECEIT, MISREPRESENTATION, UNCONSCION-ABILITY, DURESS, OR LENDER LIABILITY, ANY OTHER CLAIM IN TORT OR IN CONTRACT, OR FOR VIOLATION OF ANY LAW, RULE OR REGULATION.
On appeal, Roberts does not challenge the wording of the agreement. Instead, he argues that fact questions remain as to whether the release was obtained by duress, was unconscionable, and was unsupported by consideration.
Our standard of review in summary-judgment cases is well established. Summary judgment is to be granted by the trial court only 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. McMullen v. Healthcare Staffing Assocs., Inc., 2012 Ark. App. 617, 424 S.W.3d 404. Even where there are undisputed facts, summary judgment should be denied if, under the evidence, reasonable minds might reach different conclusions from those undisputed facts. See On appeal, we determine if summary judgment was appropriate based on whether the evidentia-ry items presented by the moving party in support of its motion leave a material question of fact unanswered. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
The facts, as viewed most favorably to Roberts, reveal that Rabo’s representative, Jim Etienne, indicated to Roberts that the loan documents submitted by Roberts in early 2010 looked favorable. There was also evidence that Etienne told some of Roberts’s creditors that the loan would probably go through. When Rabo then declined the loan in April 2010, Roberts faced an economic crisis because the farming season was underway and finding new financing would be difficult. Even with Etienne’s assistance, Roberts could not find an alternative source for funds.
In June 2010, Roberts hired attorney Cathy Nestrick to contact Rabo. On June 23, 2010, Nestrick sent Rabo a letter, reciting the history of the failed loan and stating that Roberts needed immediate funding. The letter stated in part:
Mr. Roberts needs immediate attention to avoid a potentially devastating result which could cause all parties to participate in expensive and protracted litigation. Mr. Roberts prefers a quicker and more effective resolution than litigation, but if Rabo refuses to cooperate, Mr. Roberts will have no choice but to pursue a lawsuit.
Thereafter, Nestrick and Rabo’s in-house counsel, Linda Kobliska, began negotiating the terms and conditions of a new loan.
Emails surrounding the negotiations show that Rabo moved quickly to consider Roberts’s demand. Roberts told Rabo that he was “willing to discuss the damages” and was |14“confident that we can come to an agreement.” He also told Rabo that, if he did not get loan approval by June 30, he would walk away. He did not get approval, but negotiations continued nevertheless. Rabo proposed a loan of about $200,000 and then a loan of approximately $635,000, subject to a release of “any and all claims.” Roberts rejected those amounts, though he did not voice an objection to the release. Negotiations continued.
On July 7, 2010, Roberts’s attorney Nes-trick sent Rabo a proposal for a loan of $1,472,590. She stated that, while the amount was not ideal, it would enable Roberts to “make it through the year” by paying specified amounts to certain creditors and suppliers. Nestrick described this loan proposal as “firm” and stated that, if Rabo were able to make the loan under those terms, Roberts would agree to sign a release of liability. Rabo accepted the proposal, and the parties entered into the credit agreements containing the release at issue.
Roberts argues first that summary judgment was inappropriate because a reasonable jury could find that the release was signed under duress. He contends that Rabo placed him in an untenable position by denying the first loan application so late in the crop year. This, he said, “backed him into a corner” and left him no alternative but to accept the reduced loan amount and sign the release.
To establish duress that will justify voiding a contract, a party must show that he involuntarily accepted the terms of the opposing party, that the circumstances permitted no other alternative, and that the circumstances resulted from coercive acts by the opposing party. Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993). The party must show more than a reluctance to accept the contract or the possibility of financial embarrassment. Id. He must | ifishow that the duress resulted from the other party’s wrongful and oppressive conduct and not by his own necessity. Id. In addition, he must show that the wrongful conduct deprived him of his own free will and volition. Id. Duress must be shown by clear, cogent, and convincing testimony. Sims v. First Nat’l Bank, 267 Ark. 253, 590 S.W.2d 270 (1979).
We agree with the circuit court that the release in this case was not obtained under duress as a matter of law. Roberts was a sophisticated businessman with many years’ experience in agriculture. Upon perceiving that he had a possible cause of action against Rabo, he employed counsel to initiate negotiations and threaten a lawsuit. When Rabo agreed to negotiate, both parties were represented by attorneys, and the negotiations spanned a week or more. During the negotiations, Roberts successfully increased Rabo’s loan offer from $200,000 to over $1,400,000, and made the final proposal that he would sign a release if he received that amount. There is no evidence that Rabo threatened Roberts, employed coercion, or engaged in anything other than ordinary negotiations. Roberts was therefore a full participant in the negotiations, his free will was not overcome, he did not object to the release during negotiations, and he employed legal counsel to protect his interests. In these circumstances, summary judgment was appropriate.
Roberts cites several authorities in support of his claim of duress, but they are distinguishable. In Cox, supra, a truck driver refused to complete a delivery of goods unless the broker of the goods, McLaughlin, paid a certain amount of money. The circuit court found that, as a matter of law, McLaughlin agreed to pay the money under duress, but our supreme court reversed due to questions of fact. McLaughlin, however — unlike Roberts— did |1finot have the benefit of counsel, did not initiate negotiations over a disputed claim, and did not have an extended period of time in which to counter the terms of Cox’s demand.
Similarly, in Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline Service Co., 584 P.2d 15 (Alaska 1978), Rich & Whillock, Inc. v. Ashton Dev., Inc., 157 Cal.App.3d 1154, 204 Cal.Rptr. 86 (1984), and Litten v. Jonathan Logan, Inc., 220 Pa.Super. 274, 286 A.2d 913 (1972), all cited by Roberts, the courts found that the releases in question were executed under duress. But the signatories to those releases were either forced to waive a claim that was unquestionably owed to them but deliberately not paid, as opposed to negotiating over a disputed claim; strenuously protested the unfairness of the release under the circumstances; had no significant period of time in which to negotiate; or suffered a combination of these factors, none of which are present in the case before us. We therefore affirm the summary judgment as to duress.
Roberts argues next that Rabo’s conduct was unconscionable and rendered the release invalid. An act is unconscionable if it affronts the sense of justice, decency, and reasonableness. Minor v. Chase Auto Fin. Corp., 2010 Ark. App. 670, 2010 WL 3902754. We see no such conduct here. Rabo did not threaten Roberts, employ unusually strong bargaining power, or do anything to offend notions of justice and decency. As mentioned, the parties were engaged in attorney-driven negotiations over a disputed claim.
Roberts also contends that the release was not supported by consideration. We disagree. As a result of a negotiated settlement, Roberts received a loan for $1,472,590 and agreed for forego any claim against Rabo based on prior acts or omissions. Consideration was 117therefore present. See generally Fed. Compress & Warehouse Co. v. Hall, 209 Ark. 274, 189 S.W.2d 922 (1945).
We affirm both the Newsom appeal and the Roberts appeal.
Affirmed.
GRUBER and VAUGHT, JJ., agree.
. Six entities owned or operated by Roberts also filed a notice of appeal: Mudd Creek River Farms, Inc.; Deaton River Farms, Inc.; Willoughby River Farms, Inc.; Savannah River Farms, Inc.; Riverfront Savannah Farms Partnership; and Hickory Ridge Farms, LLC. We will refer to these entities only where necessary;
. According to Roberts, he and Newsom individually were not eligible for the FSA programs.
. The pleading included several other plaintiffs and defendants who are not relevant to this appeal.
. Under the previous version of the UCC, a financing statement claiming an interest in growing crops required a real-estate description of the crops. See Ark.Code Ann. § 4-9-402(1) (Repl. 1991). The current version of the UCC eliminated that requirement.
. Newsom claims that the financing statement also incorrectly listed Roberts's address as being in Indiana rather than Arkansas. The record is not clear on whether Roberts was an Arkansas resident at the time the financing statement was filed.
. The circuit court found that Newsom had an equitable lien in the crops, and Rabo does not challenge that finding on appeal. We therefore assume for purposes of this opinion that Newsom had a valid equitable lien. | [
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COURTNEY HUDSON GOODSON, Justice.
1 Appellant Billy Terrell Adams appeals the order entered by the White County Circuit Court denying his petition for post-conviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure. For reversal, he contends that the trial court erred by not allowing him to subpoena a juror from his trial and by limiting his examination of a witness at the hearing; by not permitting him to amend his petition; by not invoking the rule to exclude his trial counsel from hearing the testimony of other witnesses; and by denying his petition for postconviction relief. Because this case involves postconviction relief, our jurisdiction is pursuant to Rule 37 and Arkansas Supreme Court Rule 1 — 2(a)(8). We affirm on all issues.
Factual Background
In August 2008, a jury convicted Adams of capital murder in the shooting death of Charles “Chucky” Cunningham and sentenced him to life in prison without parole. In reaching its verdict, the jury rejected Adams’s claim of justification and the defense that he was Runable to conform his conduct to the requirements of the law as a result of mental disease or defect. This court subsequently affirmed the conviction and sentence. Adams v. State, 2009 Ark. 375, 326 S.W.3d 764. As we noted in the opinion, the evidence at trial disclosed that Adams and Cunningham engaged in a physical altercation in the front yard of Adams’s home. When the fight ended, Cunningham got into his vehicle, and Adams went inside the house after briefly speaking with Cunningham through the car window. A few moments later, Adams emerged from the house carrying a shotgun, and from the front porch, he fired the weapon at the vehicle as Cunningham began driving away. Cunningham crashed into a utility pole after travelling a few blocks from Adams’s home. According to the medical examiner, Cunningham died as a result of the gunshot wounds that he received. In Adams, one of the issues raised on appeal was that the circuit court erred in questioning a juror after the answer she gave regarding her vote during the jury poll. We declined to address the argument because trial counsel failed to make a contemporaneous objection.
On May 24, 2010, following the issuance of our mandate, Adams filed a timely, pro se petition for postconviction relief, alleging that he had received ineffective assistance of counsel at trial. His allegations included claims that counsel failed to adequately present the defense of mental disease or defect; failed to procure the attendance of witnesses who would have testified that a gun was removed from Cunningham’s vehicle by someone at the scene of the accident; and failed to preserve for appeal the issue concerning the circuit court’s questioning of the juror. In the petition, Adams requested a hearing, the appointment of counsel, and permission to file an amended petition. On September 2, 2010, he filed a |3motion to subpoena witnesses, including the juror who was questioned by the court during the polling of the jury.
On September 28, 2010, the circuit court held a preliminary hearing. The court denied Adams’s motion to subpoena the juror and his request for the appointment of counsel. The circuit court stated that it would not set the petition for a hearing any sooner than sixty days in order to give Adams time to retain counsel. The court granted Adams’s request to file an amended petition, limited, however, to the single issue of trial counsels’ failure to object to remarks made by the prosecutor during closing argument.
By letters dated January 24 and May 6, 2011, the circuit court wrote Adams inquiring about whether he had retained counsel or whether he still intended to hire counsel. On August 23, 2011, the court informed Adams by letter that the hearing would take place on October 25, 2011. On September 26, 2011, Adams, still acting pro se, filed a sixteen-page amended petition for postconviction relief that raised issues beyond the claim that counsel were ineffective for not objecting to comments made by the prosecutor in closing argument. In the amended petition, Adams asserted that counsel were ineffective for not objecting to the prosecutor’s statement in closing that Adams would be released if found not guilty by reason of mental disease or defect if the court found that he was no longer suffering from the mental disease or defect.
14At the outset of the hearing, the circuit court announced that it would consider only the claim of ineffective assistance of counsel contained in the amended petition concerning the failure to object to the statement made by the prosecutor during closing argument. The court ruled that it would not address the additional issues raised in the amended petition because of its previous ruling allowing amendment only as to that one issue and because the petition exceeded the ten-page limitation found in Rule 37.1(b). Thereafter, Adams invoked “the rule” to exclude both of his trial counsel from the courtroom during the presentation of testimony. The circuit court denied that request but later altered its ruling by excluding counsel during each other’s testimony and while Adams testified.
In support of the petition, Adams elicited the testimony of his appellate counsel, Bill James. James said, with regard to the juror-polling issue raised on appeal, that an objection would have preserved the point for appeal but that he could not say whether the appellate court would have deemed the argument meritorious.
Adams also presented the testimony of Dr. Bob Gale, who was Adams’s expert witness at trial with respect to the defense of mental disease or defect. Gale said that he testified at trial that Adams suffered from a mental disease that rendered him unable to conform his conduct to the requirements of the law. Gale did not recall trial counsel mentioning the term “irresistible impulse,” and he could not remember whether trial counsel discussed the benefit of having Adams’s psychiatrist from UAMS testify to corroborate Gale’s testimony. He stated, however, that he reviewed Adams’s medical records prior to trial.
In addition, Adams called Herbert Gardner as a witness. Gardner had provided an | .^affidavit for Cunningham’s arrest, dated four months prior to Cunningham’s murder, stating that Cunningham had beaten and pulled a gun on him in a jealous rage over Gardner’s supposed relationship with Holly Cowan, the mother of Cunningham’s child. When Adams began questioning Gardner about the incident, the circuit court ruled that the affidavit, which had been made a part of the trial record, spoke for itself and that it was not proper for Adams to inquire about what Gardner remembered about the altercation with Cunningham. The court instructed Adams to limit his inquiry to the issue of whether trial counsel were ineffective for not securing Gardner’s presence at trial. In this regard, the circuit court noted that counsel had subpoenaed Gardner for trial but that the sheriff had not been able to serve Gardner with the subpoena at the given address after two attempts. Gardner testified that he did not know that he was a named witness for the trial and that the address and phone number listed on the subpoena were old. He explained that he worked in the oil field and that his address had changed because he was in and out of town all of the time.
Brian Joe Cowan testified that Adams’s counsel spoke with him in advance of trial and that she had asked him about disagreements that he had with Cunningham. Mr. Cowan stated that he told counsel that he did not get along with Cunningham, that they had argued and fought, and that he knew Cunningham to be violent. He stated, however, that because his sister, Holly Cowan, was upset about Cunningham’s murder, he told counsel that he would not be a good witness because he did not “know if I could say what I needed to whether it was the truth or not.”
In her testimony, Holly Cowan stated that she saw Cunningham beat up Gardner and | fithat it was the first time that she had seen Cunningham beat anyone. She said that she did not see Cunningham with a gun that day; that she had never seen him with a gun; and that she did not know him as a person who beat people or carried a weapon. Ms. Cowan stated that she was not contacted by counsel about testifying at Adams’s trial.
Anthony Turner, Adams’s uncle, testified that he saw the fight between Adams and Cunningham as he was mowing his sister’s yard. He did not see who struck the first blow, but he said that Cunningham had Adams down on the ground beating him. Turner testified that Adams’s attorneys did not contact him about testifying.
Roger Johnson testified that he was at the scene of the accident where Cunningham’s vehicle struck the pole. He said that he arrived at the accident late, that he only heard from other onlookers that a gun was removed from Cunningham’s vehicle, and that he had no knowledge of who might have taken a weapon. Johnson stated that he was not contacted by Adams’s counsel about testifying.
Jim Petty, one of Adams’s trial lawyers, testified that he began his representation three months before trial. He recalled discussing Holly Cowan as a witness with co-counsel, Ellen Reif, but he said that they did not feel that she would be a good witness. Petty testified that he and Reif met with six or seven members of Adams’s family one day and that they were told that Anthony Turner was not at the meeting because he was inside the house either drinking or drunk. He did not recall Herbert Gardner being mentioned as a witness or discussing calling Adams’s personal psychiatrist as a witness. Petty remembered Adams advising them that Cunningham normally carried a gun and asking them to ascertain whether 17a weapon was in Cunningham’s vehicle, but he stated that Adams never said that he saw a gun in Cunningham’s possession on the day of the incident. Petty testified that they employed an investigator to locate a gun that might have been taken from Cunningham’s vehicle, but Petty said that they could not find anyone who knew anything about it. He recalled that one juror appeared to be confused when the jury was polled, but he did not remember the juror being emotional.
Ellen Reif testified that Adams’s mother advised her not to use Anthony Turner as a witness because he was an alcoholic and unpredictable. Reif stated that she spoke with Adams’s psychiatrist, and she said that it was his opinion that Adams was trying to come up with a diagnosis of mental disease in order to get out of the murder charge. Reif also stated that she discussed with Dr. Gale the potential for having Adams’s psychiatrist testify but that Gale advised against it out of fear that it would disclose the psychiatrist’s belief that Adams was a sociopath. For these reasons, she did not believe that the psychiatrist’s testimony would have been helpful. Reif said that she could not locate Gardner prior to trial. She testified that she did speak to Holly Cowan before trial and that, as the mother of Cunningham’s child, she was bitter and resentful. Reif said that she and Adams discussed subpoenaing Ms. Cowan but that they decided against it. About the alleged gun in Cunningham’s vehicle, Reif stated that she both hired an investigator and also personally spoke to persons who were present at the scene of the car accident, and she testified that everyone she spoke to said that they never saw a gun. Reif confirmed that Adams did not tell her that he saw a gun during the altercation. Reif testified that she telephoned Robert Johnson but that he hung up on her. She said that |sshe and Adams, together, made the decisions as to whom to call as witnesses. Reif testified that she recalled Adams discussing “irresistible impulse” and that she read the cases Adams gave her on the subject. She said that she submitted the jury instructions to the circuit court that appellant asked her to prepare but that the court rejected them. Reif stated that she did not object during the polling of the jury because the juror answered affirmatively that it was her verdict. She said that she watched the juror, that the juror was comfortable in her decision, and that she did not appear to be in tears. Reif stated that she saw no need to object because the juror said that it was her verdict. She testified that “there was a lot of hard evidence to overcome” given that Adams “stood out on the front porch and ... shot him with a shotgun, and [Adams] even told me that the shells that [he] used were not regular buckshot, but they were stronger — stronger pellets.”
Adams testified that he and Reif did not communicate well. He said that there was another gun involved and that Reif had not testified truthfully in that regard. Adams said that his counsel did not speak to many of the witnesses at the site of the accident in order to locate a gun. He believed that counsel should have called Holly Cowan, Brian Cowan, and Gardner to testify about Cunningham’s propensity for violence. Adams stated that his counsel should have objected to the closing remarks of the prosecutor that Adams believed were prejudicial and incorrect statements of the law. Further, he said that it would have made a difference in the outcome of the trial if his counsel had objected when the circuit court questioned the juror about her verdict. Adams was also critical of counsel not having his personal psychiatrist testify. He testified that the strategic decisions made by his counsel were not supported by | ^reasonable professional judgment.
On January 25, 2012, the circuit court entered its order denying Adams’s request for postconviction relief. In its order, the court acknowledged that it incorrectly believed that it had the discretion whether to exclude witnesses pursuant to Arkansas Rule of Evidence 615. The circuit court stated that, once it realized the error, it excluded counsel from the courtroom so that they could not hear each other’s testimony or that of Adams. The court said that it had reviewed the testimony from the hearing and that neither counsel provided any significant conflicting testimony with the other witnesses. The court identified one exception. Holly Cowan testified that she did not speak to defense counsel, whereas Reif stated that she spoke with Ms. Cowan. The court resolved the conflict in Ms. Cowan’s favor but found that counsel were not ineffective because her testimony would not have been beneficial to Adams at trial. The circuit court further found that counsel were not ineffective for not calling Gardner as a witness because the record showed that he could not be located and that counsel had made reasonable efforts to locate the witness. With regard to the alleged gun, the circuit court found that counsel made reasonable efforts to locate witnesses on that subject but that none were found who could verify that a gun was removed from Cunningham’s vehicle.
As to the claim that counsel did not adequately prepare and present the defense of mental disease or defect, the circuit court found that counsel retained the services of Dr. Gale, who had access to and had reviewed Adams’s medical records, including those of Adams’s psychiatrist at UAMS. On the juror-polling issue, the court found that the juror did not 11 pimply that the guilty verdict was not her verdict but that she voted guilty after she was convinced of Adams’s guilt. The circuit court also found that the prosecutor’s remarks during closing argument were correct statements of the law and not improper. Appellant filed a timely notice of appeal from the circuit court’s order.
Subpoena of the Juror and Limitation on the Scope of Examination
Adams first argues that the circuit court erred by not allowing him to subpoena the juror who was questioned by the circuit court when the jury was polled at trial. The circuit court’s decision was based on Rule 606(b) of the Arkansas Rules of Evidence, which provides that a juror may not testify as to any “matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith[.]” Adams contends on appeal that the rule does not prohibit a juror from testifying about matters that occur outside the jury room, such as when the jury is being polled. He argues that he should have been given the opportunity to question the juror so long as he stayed within the bounds of Rule 606(b).
This argument is being raised for the first time on appeal. At the hearing, Adams stated that he wished to question the juror about her “emotional state.” Adams did not argue at the hearing that the line of questioning he desired to pursue was not objectionable under Rule 606(b). We do not consider issues that are raised for the first time on appeal. Tornavacca v. State, 2012 Ark. 224, 408 S.W.3d 727.
Adams also contends that the circuit court erred by restricting his examination of 1T1 Gardner. On this point, the circuit court ruled that Gardner’s affidavit was sufficient and that Adams should focus his inquiry on the reason why counsel failed to procure Gardner’s attendance at trial. Adams argues that the circuit court erred by limiting his examination of the witness because it was necessary for him to develop the substance of Gardner’s proposed testimony in order to support his claim of ineffective assistance of counsel. We find no error on this point. The substance of Gardner’s testimony was supplied in the affidavit. Thus, Adams has failed to demonstrate how he was prejudiced by the circuit court’s ruling. This court has consistently held that we will not reverse a decision of the trial court absent a showing of prejudice, as prejudice is not presumed. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). Further, Adams suggests that the same limitation was placed on his questioning of other witnesses. However, he does not identify the witnesses, nor does he explain how his questioning was restricted. His failure to develop the argument in his brief precludes review of this issue. Cooper v. State, 2012 Ark. 123, 2012 WL 859702 (per curiam).
Amendment of the Petition
For his next point on appeal, Adams argues that the circuit court erred by not allowing him to amend his petition for postconviction relief. Citing Butler v. State, 367 Ark. 318, 239 S.W.3d 514 (2006), he asserts that he did everything in his power to move the case forward and that the circuit court abused its discretion by not allowing the amendment.
Our rules of criminal procedure do allow for the amendment of a Rule 37 petition, but only with leave of the court. Ark. R.Crim. P. 37.2(e). Our standard of review as to the denial of leave to amend is abuse of discretion; we determine whether the circuit court’s | ^decision was arbitrary of groundless. Rodriguez v. State, 2010 Ark. 78, 2010 WL 569750 (per curiam). In Butler, supra, we distinguished those cases in which a petitioner seeks to substitute a new petition from those in which the petitioner desires to file an expanded petition that exceeds the ten-page limitation found in Rule 37.1(b). In the instant case, the circuit court did grant Adams permission to amend the petition to include the claim that counsel were ineffective for not objecting to comments made by the prosecutor during closing argument. However, when Adams filed the amended petition, it not only included additional claims, but it also exceeded the ten-page limit. The circuit court considered the claim concerning closing argument but otherwise rejected the bulk of the over-length petition.
We have held that the rule limiting petitions to ten pages is an entirely reasonable restriction on petitioners seeking postcon-viction relief. Davis v. State, 2010 Ark. 366, 2010 WL 3794178 (per curiam) (citing Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003)). A petitioner under Rule 37.1 may demonstrate that he cannot adequately present his claims to the court in only ten pages and may request to file a petition longer than ten pages, but he may file the over-length petition only with the permission of the circuit court. Murry v. State, 2011 Ark. 343, 2011 WL 3930395 (per curiam) (citing Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000)). If a petitioner does not receive permission to file an over-length petition, he is obliged to proceed in accordance with our rules. Id.; see also Davis, supra. If he chooses not to do so, he must bear the consequences of his decision to submit an over-length amended petition. Murry, supra. Rule 37.1(b) clearly allows a circuit court to dismiss an over-length petition, stating, “The circuit court or appellate court may dismiss any petition that fails to comply with this subsection.” ^Jj^Accordingly, we hold that the circuit court did not abuse its discretion by not accepting the additional issues raised in the over-length amended petition.
Arkansas Rule of Evidence 615
Adams contends under this point that the circuit court erred by not granting his request to invoke Rule 615 to exclude his trial counsel from the courtroom. He asserts that the circuit court’s error mandates reversal of the postconviction order for another hearing.
The “rule,” embodied in Rule 615, requires the exclusion of witnesses from the courtroom to prevent them from adjusting their testimony based upon what they have heard prior witnesses say. Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999). Exclusion is mandatory upon request by either party, and only specific exceptions exist to allow witnesses to remain in the courtroom. Id. (citing Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996)). The rule does not authorize the exclusion of a party, but we have held that trial counsel in postconviction proceedings do not become a party to the action by virtue of his or her status as former trial counsel. King v. State, 322 Ark. 51, 907 S.W.2d 127 (1995); Chambers v. State, 264 Ark. 279, 571 S.W.2d 79 (1978). The purpose of Rule 615 is to expose inconsistencies in the testimonies of different witnesses and “to prevent the possibility of one witness’s shaping his or her testimony to match that given by other witnesses at trial.” Clark, 323 Ark. at 217, 913 S.W.2d at 300 (quoting King, 322 Ark. at 55, 907 S.W.2d at 129).
114However, on this issue, prejudice is not presumed, and we do not reverse absent a showing of prejudice. Clark, supra. An appellant must do more than allege prejudice, he must demonstrate it. Jones v. State, 374 Ark. 475, 288 S.W.3d 633 (2008). Here, the circuit court found that Adams was not prejudiced by its failure to exclude counsel from the courtroom while the other witnesses testified. Adams does not contest this finding, nor does he allege that any prejudice occurred. Therefore, Adams has failed to demonstrate reversible error.
Denial of Petition
As his final issue on appeal, Adams argues that the circuit court erred in denying his petition for postconviction relief. He contends that counsel were ineffective in presenting the defense of mental disease or defect because they failed to present the testimony of his treating psychiatrist. He also claims that counsel were ineffective in their presentation of the defense of justification for not calling Gardner, Mr. Cowan, Ms. Cowan, and Roger Johnson. Adams asserts that counsel were not effective because they failed to preserve the issue for appeal regarding the circuit court’s questioning of the juror when the jury was polled and because they did not object to remarks made by the prosecutor during closing argument.
Rule 37 is a narrow remedy designed to prevent wrongful incarceration under a 11ssentence so flawed as to be void. Williams v. State, 347 Ark. 371, 64 S.W.3d 709 (2002). Judicial review of counsel’s performance must be highly deferential. Id. This court does not reverse a denial of postconviction relief unless the circuit court’s findings are clearly erroneous. Strain v. State, 2012 Ark. 42, 394 S.W.3d 294(per curiam) (citing Reed v. State, 2011 Ark. 115, 2011 WL 913208 (per curiam)). A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830. Our standard of review requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Springs v. State, 2012 Ark. 87, 387 S.W.3d 143.
In asserting ineffective assistance of counsel under Strickland, the petitioner must show that counsel’s performance was deficient. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Scott v. State, 2012 Ark. 199, 406 S.W.3d 1. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable | ^professional judgment. Id.
In order to satisfy the second prong of the Strickland test, the petitioner must show that counsel’s deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189. In doing so, the petitioner must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Mingboupha v. State, 2011 Ark. 219, 2011 WL 1805339 (per curiam).
Adams first claims that counsel were ineffective for not calling a number of persons as witnesses. The objective in reviewing an assertion of ineffective assistance of counsel concerning the failure to call certain witnesses is to determine whether this failure resulted in actual prejudice that denied the petitioner a fair trial. Woody v. State, 2009 Ark. 413, 2009 WL 2971758 (per curiam). In such cases, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Shipman v. State, 2010 Ark. 499, 2010 WL 5185781 (per curiam). When assessing a trial counsel’s decision not to call a particular witness, this court must take into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness or witnesses who could have offered beneficial testimony is not, in itself, proof of counsel’s ineffectiveness. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). In order to demonstrate prejudice, a petitioner is required to establish that there is a reasonable probability that, had counsel performed further investigation and presented the | ^witness, the outcome of the trial would have been different. Greer v. State, 2012 Ark. 158, 2012 WL 1223760 (per curiam).
Adams asserts that counsel were deficient for not calling his treating psychiatrist as a witness. However, he has not stated what the substance of the testimony might have been, and he did not call his psychiatrist as a witness at the hearing. Conclusory allegations that are unsupported by facts do not provide a basis for postconviction relief. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). We also note that trial counsel testified that the psychiatrist’s testimony would not have supported the defense, as the psychiatrist believed that Adams was attempting to manufacture a mental illness in order to avoid conviction and that he was a sociopath. Where a decision by counsel was a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then counsel’s decision is not a basis for relief under Rule 37.1. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477.
Adams next asserts that counsel should have presented the eyewitness testimony of Anthony Turner at trial. However, as noted by the circuit court, trial counsel elicited the testimony of other witnesses to the altercation, including members of Adams’s family. This court has held that the omission of a witness when his or her testimony is cumulative does not deprive the defense of vital evidence. Springs, supra; Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). Appellant has not demonstrated that Turner’s testimony was materially different from the other eyewitness testimony presented, and thus he has failed to demonstrate prejudice. In addition, trial counsel made the strategic decision, after consultation with Adams’s mother, not to call Turner as a witness because he was an alcoholic and | ^unpredictable. Adams has failed to show that the decision not to call Turner as a witness is not supported by reasonable professional judgment.
Adams also asserts that counsel should have secured the presence of Brian Cowan in support of his claim of self-defense, as the witness had knowledge of Cunningham’s violent nature. We have held that when justification is offered as a defense, evidence of a victim’s violent character is relevant to the issue of which party was the aggressor and whether the accused reasonably believed himself to be in danger of suffering unlawful deadly force. Henderson v. State, 335 Ark. 346, 980 S.W.2d 266 (1998). However, this allegation was contained in Adams’s amended petition, which the circuit court did not consider. Thus, the circuit court did not rule on this claim. We have upheld the circuit court’s decision not to consider the over-length amended petition. In the absence of a ruling, we are precluded from addressing this claim. Cowan v. State, 2011 Ark. 537, 2011 WL 6275694 (per curiam).
Adams also contends that trial counsel were ineffective for not having Gardner and Holly Cowan testify as defense witnesses concerning the incident where Cunningham allegedly attacked Gardner. As to Gardner, counsel did subpoena him, but the address was incorrect. As Gardner explained at the hearing, he worked out of town, and the address provided to counsel was outdated. When counsel is not given complete information .concerning the location of witnesses, the burden of the appellant to prove ineffective assistance of counsel is more difficult. Chandler v. State, 297 Ark. 432, 762 S.W.2d 796 (1989). Adams has not rebutted Gardner’s explanation concerning his whereabouts, nor does he demonstrate, or even allege, a lack of diligence on the part of counsel for failing to locate the |1flwitness. In fact, Adams does not challenge the circuit court’s precise ruling that counsel made reasonable efforts to locate this witness. We cannot conclude that the circuit court’s decision is clearly erroneous.
We also hold that the circuit court did not err in concluding that the decision not to call Ms. Cowan was a matter of trial strategy based upon reasonable professional judgment. Trial counsel testified that, as the mother of Cunningham’s child, she was antagonistic toward appellant, and Ms. Cowan’s testimony at the hearing reflects that her testimony would not have proved helpful. Adams has not demonstrated a reasonable likelihood that Ms. Cowan’s testimony would have altered the outcome of trial.
Next, appellant contends that Roger Johnson had information that a gun was removed from Cunningham’s vehicle after the accident and that trial counsels’ performance was deficient because they did not interview or subpoena him as a witness. Trial counsel testified, however, that they pursued the possibility that Cunningham might have been armed by interviewing other witnesses at the scene and by hiring an investigator to look into the matter. In addition, Johnson had no personal knowledge about a gun being removed. The circuit court’s decision on this point is not clearly erroneous.
In another point, Adams contends that his trial counsel failed to adequately present the defense of mental disease or defect. He argues that his defense included the theory that he was acting under the influence of an “irresistible impulse,” which counsel failed to raise. This argument is without merit. As we observed in Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980), the term “irresistible impulse” is embodied in the concept of not being able, 12nbecause of mental disease or defect, to conform one’s conduct to the requirements of the law, the standard found in Arkansas Code Annotated section 5-2-312(a)(l)(A) (Repl.2006). This is the defense trial counsel raised at trial.
Adams also argues that counsel were ineffective for not preserving the issue concerning the circuit court’s questioning of the juror when the jury was polled. He contends that the court’s questions were improper and would have constituted reversible error had counsel raised an objection.
At the conclusion of trial, defense counsel asked for the jury to be polled after the verdict was pronounced, as permitted by Arkansas Code Annotated section 16-89-128 (Repl.2005). This statute provides that “[u]pon a verdict’s being rendered, the jury may be polled at the instance of either party, which consists of the clerk or judge asking each juror if it is his or her verdict. If one (1) answers in the negative, the verdict cannot be received.” The record of trial reflects the following:
THE COURT: Polling of the Jury is a process where I inquire of each individual juror whether the verdict that I have just read, is, in fact, your verdict.
THE COURT: Ms. Crisler?
MS. CRISLER: That was the way we all voted.
| giTHE COURT: That was the way you voted?
MS. CRISLER: No. Not. I didn’t really want to but I was convinced.
THE COURT: Okay, ma’am. The question is whether that is your verdict. Yes or no?
MS. CRISLER: Yes. That was the way I voted.
In Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986), this court held that when a juror casts doubt on whether the verdict rendered is his or her verdict, and the court questions the juror until the juror casts an unequivocal vote, the juror is voting in the courtroom rather than in the jury room. We said that, where it appears that the guilty verdict is not unanimous because of a juror’s response to being polled, the jurors must be returned to the jury room for further deliberations, otherwise the trial judge runs the risk of conducting a proceeding which, albeit well meant, will have the palpable effect of coercion. In Rhodes, we reversed a capital-murder conviction where a juror, when asked whether it was his verdict, responded that “[i]t is with a question.” Upon further questioning by the court, the juror replied that he “wasn’t sure either way.” With more questioning, he then stated that he “agreed to it after we discussed it.” After being asked whether he was convinced beyond a reasonable doubt of the appellant’s guilt, the juror stated, “I’m sure.”
The case at bar is distinguishable from Rhodes. The juror in this case stated that she was “convinced” to render a guilty verdict and “that was the way I voted.” We perceive no equivocation on the part of the juror and cannot conclude that the juror impermissibly voted in the courtroom as a result of the court’s questions. Thus, if counsel had raised an objection to the comment on this basis, the objection would have failed. A petitioner does not | aademonstrate the requisite prejudice for a claim of ineffective assistance based on the failure to make an objection if he does not establish that counsel could have made a successful objection. Davis v. State, 2013 Ark. 118, 2013 WL 1091189 (per curiam); Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6(per curiam).
Adams also contends that defense counsel were ineffective for not objecting to comments made by the prosecutor during closing argument. Adams asserts that the prosecutor improperly stated that Adams would “walk out” if he were acquitted as the result of mental disease or defect. Actually, the prosecutor stated that “if the judge finds he no longer suffers from it [mental disease or defect], he walks out.” As found by the circuit court, the jury in this case was instructed in accordance with AMI Crim.2d 609, stating that “if you find Billy Terrell Adams not guilty by reason of mental disease or defect, the court will conduct a hearing. If the court determines that Billy Terrell Adams is no longer affected by mental disease or defect, the court will immediately discharge Billy Terrell Adams.” This instruction is required pursuant to Arkansas Code Annotated section 5-2-312(a)(2), which provides that, when the affirmative defense of mental disease or defect is presented to a jury, “the jury shall be instructed regarding the disposition of a defendant acquitted on a ground of mental disease or defect[.]” Because the prosecutor’s remark is consistent with the law, any objection raised by trial counsel would have been meritless. Therefore, counsel were not deficient for not objecting to the prosecutor’s comments. Lambert v. State, 2012 Ark. 150, 2012 WL 1130590 (per curiam) (holding that, in order to carry his burden to demonstrate prejudice, a petitioner must show, when making a claim of ineffective assistance for failing to raise an objection or | poinake an argument, that the objection or argument would have been successful if made).
Our review of the circuit court’s decision reveals no reversible error. Therefore, we affirm the denial of postconviction relief.
Affirmed.
HART, J., dissents.
. We note that Adams raised another issue concerning trial counsels’ failure to object to statements made by the prosecutor during closing argument. However, he does not raise that point on appeal. This issue, therefore, is considered abandoned. Falcon Cable Media LP v. Ark. Pub. Serv. Comm'n, 2012 Ark. 463, 425 S.W.3d 704.
. The dissent takes the position that we must reverse on this point based on the perceived conflict in the testimony concerning Dr. Gale’s and Reifs recollections of discussions regarding the theory of "irresistible impulse.” Adams does not make this claim, and there is no resulting prejudice. Both are required for reversal. While Gale could not recall discussing that precise term with counsel, what is plain from the record is that, through the trial testimony of Gale, counsel presented the defense that Adams was not able to conform his conduct to the requirements of the law due to mental disease or defect. As discussed infra, this defense encompasses the theory of "irresistible impulse.” Indeed, Gale acknowledged at the hearing that the two concepts were similar and that he had testified at trial that Adams, because of acute stress disorder, could not conform his conduct to the requirements of the law because he was on "automatic” after being attacked, choked, and placed in fear of his life. Whether Gale and Reif did or did not discuss "irresistible impulse” in precise terms is of no consequence because this was the defense theory presented at trial.
. Under this point, Adams also contends that his counsel were deficient because they did not "attempt to argue culpable mental state as a separate and distinct issue from mental disease or defect.” This argument was not raised or ruled upon below. We will not address arguments raised for the first time on appeal. Gilliland v. State, 2010 Ark. 135, 361 S.W.3d 279. | [
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CLIFF HOOFMAN, Justice.
bln this interlocutory appeal, appellant, Mayor Robert “Bob” Sullivan of the City of McRae, Arkansas, appeals from the circuit court’s order denying his motion for summary judgment on the basis of qualified immunity. This case is presented to us following our grant of a petition for review from a decision of the Arkansas Court of Appeals. Sullivan v. Coney, 2012 Ark. App. 687, 2012 WL 6045919. Thus, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1 — 2(e) and 2-4 (2012). We reverse and remand the circuit court’s decision.
Appellee Mary Coney was hired as the chief of police for the City of McRae in September 2008. Coney’s job duties included code enforcement, animal control, and acting as court bailiff. Mayor Sullivan terminated Coney on February 13, 2009, for allegedly | ¡¡.falsifying fire-department records and for insubordination. A special city-council meeting was held on February 24, 2009, to discuss Coney’s termination, and the council voted not to overturn the Mayor’s decision to terminate her.
Coney filed a complaint on March 27, 2009, against the City of McRae; Robert “Bob” Sullivan, individually and as Mayor of McRae; and Wayland Bradford, Benny Ward, Mike Smith, and Twyla Turner, all of whom were McRae aldermen. Coney claimed in her complaint that she had been previously employed not only as chief of police but also as the code enforcement officer for the City and that this position could be terminated only for cause. She denied that the Mayor had just cause to terminate her employment and asserted that she was terminated only because she had reported to the city attorney that the Mayor had committed misconduct by ordering her to issue a criminal citation to a citizen who had not committed any crimi nal act. Coney alleged (1) that the defendants failed to comply with the provisions of the Arkansas Freedom of Information Act because they did not give sufficient notice of the special city-council meeting; (2) that her due-process rights under the Arkansas Constitution were violated because she was not granted notice and a hearing on the charges against her; (3) that Sullivan’s termination of her employment violated her rights under the Arkansas Whistle-Blower Act; (4) that her termination from her positions of chief of police and code enforcement officer without just cause violated her rights under the Arkansas Civil Rights Act (ACRA); and (5) that she was entitled to COBRA benefits. Coney sought compensatory and punitive damages from the defendants, as well as reinstatement.
In their answer, the defendants denied the allegations in the complaint and affirmatively | ^asserted that they were entitled to statutory immunity. The defendants also filed a motion for summary judgment on each of the claims and asserted that they were entitled to qualified immunity because Coney had no property interest in her employment as an at-will employee and was not owed any procedural due process with regard to her termination. In support of their motion, the defendants filed a statement of uncontested material facts based on discovery responses by Coney.
In the portions of this statement that are relevant to this appeal, Coney admitted that a city ordinance establishing the position of “Building Official” required that an appointment be made by the Mayor and that she was never appointed by the May- or to be the building official. While she claimed that she was given the position (which Coney refers to as the code enforcement officer) by the city council in August or September 2008, she admitted that the minutes from the August and September 2008 council meetings did not reflect this appointment. Coney further agreed that she had served as secretary for the volunteer fire department, where she was responsible for entering run reports into the computer indicating which firemen appeared at the scene, after which she would give the reports to another employee who paid the firefighters based on these reports. She admitted that the Mayor began to suspect that she was altering the run reports to reflect that she was attending runs that she actually did not attend, although she denied that she had done this. Coney, also admitted that she was told by the Mayor to arrest a man for violating a zoning ordinance by operating a cabinet shop out of his residence and that she had refused to do this because she believed that the zoning ordinance did not provide for criminal sanctions. She agreed that she instead | ¿reported the Mayor’s directions to the city attorney, who told Coney that the matter would be addressed at the next city-council meeting, although Coney was fired before the next meeting was held. Coney admitted that the penalty section of the zoning ordinance at issue was correctly set out by the defendants, and it provided that a person who violates the ordinance shall be guilty of a misdemeanor and liable for a fine of not more than one hundred dollars.
A hearing was held on the motion for summary judgment on August 22, 2011, although the issue of qualified immunity was not discussed. At the conclusion of the hearing, the circuit court indicated that there were unresolved material issues of fact that prevented summary judgment from being granted. When Sullivan’s counsel indicated his intent to file an interlocutory appeal on the qualified-immunity issue, the circuit court noted that the issue had been briefed by the parties but not argued. Although counsel then attempted to address the issue, the circuit court stated that it had already ruled based on what was presented at the hearing. The order denying the summary-judgment motion was entered on September 16, 2011, and it states with regard to the immunity issue that “Mayor Sullivan’s motion for summary judgment based on qualified immunity was not argued during the hearing and is hereby denied.” The order noted that the other individual defendants were sued in their official capacity only. Sullivan filed a timely notice of appeal from the circuit court’s order denying him qualified immunity.
The court of appeals reversed and remanded for the circuit court to address the merits of the qualified-immunity issue. Sullivan v. Coney, 2012 Ark. App. 687, 2012 WL 6045919. We granted | sSulIivan’s petition for review, which argued that the court of appeals had erred by not addressing the issue when it was ruled on by the circuit court and was fully briefed by both parties on appeal. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. Osborn v. Bryant, 2009 Ark. 358, 324 S.W.3d 687.
Generally, the denial of a motion for summary judgment is neither reviewable nor appealable; however, that general rule does not apply where the refusal to grant a summary-judgment motion has the effect of determining that the appellant is not entitled to immunity from suit, as the right of immunity is effectively lost if the case is allowed to proceed to trial. Gentry v. Robinson, 2009 Ark. 634, 361 S.W.3d 788. The issue of whether a party is immune from suit is purely a question of law and is reviewed de novo. Id.
Although there were numerous grounds raised by the defendants in their motion for summary judgment in this case, our current review is limited to the question of whether Sullivan, individually, is entitled to immunity from the present suit. City of Farmington v. Smith, 366 Ark. 473, 237 S.W.3d 1 (2006). Coney’s complaint alleged liability against Sullivan both in his official capacity and individually; however, this court has recognized that a suit against a city official in his or her official capacity is not a suit against that person but is instead a suit against that official’s office. Id.; Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005).
Arkansas Code Annotated section 21-9-301 (Supp.2011), which governs qualified immunity, states as follows:
(a) It is declared to be the public policy of the State of Arkansas that all counties, | (¡municipal corporations, school districts, public charter schools, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.
(b) No tort action shall lie against any such political subdivision because of the acts of its agents and employees.
We have consistently held that section 21-9-301 provides city employees with immunity from civil liability for negligent, but not intentional, acts. City of Farmington v. Smith, supra.
The analysis used by this court in determining whether summary judgment on the ground of qualified immunity is appropriate is derived from the standard used for qualified-immunity claims in federal civil-rights actions. Smith v. Brt, supra. Under this analysis, a motion for summary judgment based on qualified immunity is precluded only when the plaintiff has (1) asserted a statutory or eónstitu- tional violation, (2) demonstrated that the statutory or constitutional right is clearly established, and (3) raised a genuine issue of fact as to whether the official would have known that the conduct violated that clearly established right. Id.; Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987). Therefore, “[a]n official is immune from suit if his or her actions did not violate clearly established principles of law of which a reasonable person would have knowledge.” Smith, 363 Ark. at 131, 211 S.W.3d at 489. We have noted that this objective reasonable-person standard is a legal inquiry and that whether summary judgment on grounds of qualified immunity is appropriate from a particular set of facts is a question of law. Id.
The circuit court in this case declined to reach the merits of the qualified-immunity claim because it was not argued at the hearing, even though the parties had raised the issue |7in the pleadings and in the summary-judgment motion and responses. There is no requirement, however, in Ark. R. Civ. P. 56, which governs motions for summary judgment, that the parties orally argue a claim raised in the motion. Despite the court’s refusal to address the merits of the qualified-immunity claim, the issue was fully briefed below by both parties, and there was an express ruling by the circuit court in its order denying summary judgment. Thus, Coney’s assertion that the issue has been waived by Sullivan is without merit. Because the parties have fully briefed the issue below and on appeal and because the question of whether summary judgment is appropriate on the ground of qualified immunity is purely one of law, this court may decide this issue in our de novo review of the circuit court’s ruling.
In deciding whether Sullivan is entitled to qualified immunity, we must first determine what statutory or constitutional violations Coney has alleged in her complaint. She alleged five claims, two of which were constitutional in nature: her claim that her due-process rights under the Arkansas Constitution were violated when she was not provided with adequate notice of the charges against her and an opportunity to refute them prior to her termination as chief of police, and her claim that her rights under the ACRA were violated by her termination without just cause. She also alleged that Sullivan violated the Arkansas Whistle-Blower Act, Ark.Code Ann. § 21-1-601 et seq.
With respect to the due-process claim, Sullivan responds that Coney was an at-will employee and that she therefore had no properly interest in her position as Chief of Police. Although Coney argued that Ark.Code Ann. § 14-42-110 (Repl. 1998) granted her the right to have a hearing before the city council to determine whether the council should override | ¿the Mayor’s decision to terminate her, Sullivan correctly notes that this section does not confer any rights to a terminated employee but instead sets forth the procedure by which the Mayor can appoint and remove department heads. In Sykes v. City of Gentry, 114 F.3d 829 (8th Cir. 1997), the court found that the 1995 enactment of section 14-42-110, which expressly grants the Mayor the power to appoint and remove all department heads, eliminated the property interest that a chief of police had under prior versions of the statutes. Thus, the court held that there was no violation of due process when Sykes, as the former chief of police, was terminated by the Mayor without cause. Id. The court explained that when a legislature alters or eliminates a previously conferred properly interest in state employment, “the legislative process itself provides citizens with the process they are due.” Id. at 830. Here, as in Sykes, the Mayor’s decision to terminate Coney from her position as chief of police, regardless of whether he had just cause, did not violate her due-process rights under the Arkansas Constitution because she was an at-will employee. See also Robinson v. Langdon, 338 Ark. 662, 970 S.W.2d 292 (1998) (state employee had no property interest in his employment where he was an at-will employee).
Similarly, for the reasons stated above, Mayor Sullivan’s termination of Coney as chief of police, even if without cause, did not violate her constitutional rights under the ACRA. Coney’s primary contention under the ACRA, however, was based on her alleged termination from her position of code enforcement officer, or “Building Official.” Both parties agree that McRae City Ordinance 50, which establishes the position of building official, requires that the building official “shall be appointed by the Mayor” and “shall not |nbe removed from office except for cause after full opportunity has been given to be heard” on the charges. Thus, as opposed to the position of chief of police, the building official would be entitled to procedural due process pursuant to this ordinance, which gives the employee a property interest in the position. However, apart from the bare allegations of Coney in her pleadings, she offered no proof that she was, in fact, appointed to or terminated from this position. She admitted that Mayor Sullivan did not appoint her to the position, as is required by the ordinance, and she also offered no evidence to support her claim that she was appointed by the city council. The defendants attached as exhibits to their summary-judgment motion the minutes from the city-council meetings during which Coney alleged that she was appointed, and she admits that there is no indication of her appointment in these minutes.
Coney failed to meet proof with proof in opposing the motion for summary judgment, and she has therefore failed to establish a constitutional violation from either her alleged termination from the position of building official or from her termination as chief of police. City of Fayetteville v. Romine, 373 Ark. 318, 284 S.W.3d 10 (2008) (where the party opposing the summary-judgment motion did not meet proof with proof, this court held that the appellee failed to raise a genuine issue of fact as to whether the city employee was entitled to qualified immunity and reversed the trial court’s denial of summary judgment).
Coney also argued that her claim that Mayor Sullivan violated the Arkansas Whistle-Blower Act demonstrated that her termination was wrongful and against public policy. Coney contends that a termination in violation of public policy is an exception to the at-willj inemployment doctrine and that Sullivan is not entitled to qualified immunity for this claim.
Under the Arkansas Whistle-Blower Act, a public employer is prohibited from taking adverse action against an employee who communicates in good faith to an appropriate authority government waste or the violation of a rule, law, or regulation. Ark.Code Ann. § 21-l-603(a) (Supp.2011). Sullivan argues that what Coney reported to the city attorney was not a violation of law and that he therefore could not have known that he was violating the Act by terminating her.
Under our qualified-immunity analysis, we agree that even if Coney has asserted a violation of a clearly established right under the Act, she has failed to raise a genuine issue of fact as to whether Sullivan would have known that his conduct violated that clearly established right. Coney alleged that Sullivan told her to arrest someone who was not committing a crime. However, the zoning ordinance at issue did provide for a criminal penalty, and Coney further admitted that she was aware that the individual was violating the ordinance. Coney has therefore failed to demonstrate that what she reported to the city attorney was a violation of law. Sullivan stated that he terminated Coney’s employment as police chief because of insubordination and falsification of records. Coney has not shown that Sullivan would have reasonably believed that he was violating her rights under the Whistle-Blower Act by terminating her under the circumstances in this case. Thus, Sullivan was also entitled to qualified immunity on this claim.
Because the circuit court erred in not granting Sullivan qualified immunity on the claims brought by Coney, we reverse and remand for further proceedings consistent with this | h opinion.
Reversed and remanded.
. Although there were several defendants named in the underlying suit, Sullivan, individually, is the sole appellant involved in this interlocutory appeal. | [
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DAVID M. GLOVER, Judge.
| ;This is a dispute between an estate and the widow of the deceased as to who owns certain farm equipment. The trial court determined that the farm equipment in question belonged to the widow, appellee Audria Adair. The estate appeals that determination. We affirm the trial court’s decision.
Factual Background
Lewis and Audria Adair were married in February 1993; it was a second marriage for both parties. Prior to their marriage, Lewis purchased 200 acres of real properly in Hempstead County with funds from the sale of his separate real property located in Texas; after Lewis and Audria married, Lewis added Audria’s name on his Hemp-stead County ^property. In 2009, Lewis and Audria sold 150 acres of the 200 acres held as tenancy by the entirely for $160,000, keeping the remaining fifty acres and farming that property together. Lewis and Audria purchased two $50,000 CDs with the funds from the sale of the 150 acres, and the remainder of the money was placed in what was known as “the farm account.” Although the farm account was originally only in Lewis’s name, Audria’s name was added to the account in 1995.
In July 2010, Lewis executed a will. Soon after Lewis’s death on May 10, 2011, his son, Charles Thomas Adair, filed a petition to probate Lewis’s will and to appoint himself as executor of Lewis’s estate as provided by Lewis’s will. An order admitting the will to probate and appointing Charles Thomas Adair executor was filed on June 9, 2011. Lewis’s will provided that he had previously given Audria cash as well as real properly that he owned prior to them marriage and had placed in her name, and it stated that he considered that to be adequate. He specifically bequeathed to his son, Charles Thomas Adair, his 4235 Massey Ferguson tractor and fifteen-foot batwing bushhog; to one stepson, Scott Hatfield, his stud horse; and to his other stepson, Alan Moses, a sack of “horse apples.” The rest of his estate was to be divided between his son and his daughter, Paulette Adair Phillips. On July 26, 2011, Charles Thomas Adah-filed an inventory of the estate, claiming farm equipment, a Kubota Mule, trailers, a four-wheeler, guns, knives, and horses as property of the estate. Thereafter, on November 4, 2011, Audria, as Lewis’s hwidow, filed her election to take against the will her dower interest; she also filed a petition for statutory allowances, claiming that she was entitled to all of the items in the house, on the real property, and in the barn, including all of the farm equipment (including the Kubota Mule, trailers, and two four-wheelers), guns, knives, and horses. Audria also filed a petition contesting the estate’s inventory and claiming certain personal property to be her sole property or, alternatively, certain personal property to be one-half owned by her.
The Probate Order
On May 2, 2012, a hearing was held on Audria’s petition. At the close of the hearing, the trial court made the following findings: that the New Holland rake, single-axle trailer, field cultivator, two-row planter, one four-wheeler, post-hole digger, nine guns, and three knives were properly of the estate; and that the following items of personal property passed to Audria, as they were “purchased during the marriage with marital assets, either from marital income and from a marital account and/or from the proceeds of the sale of marital real property that was then placed into a marital account making said purchases of said personal property therefrom, thereby making said personal property subject to tenancy by the entirety”:
all items located in the home, on the property, and in the barn; 4WD Massey Ferguson tractor; fifteen-foot bushhog; 2WD Massey Ferguson tractor; New Holland round hay baler; John Deere square hay baler; hay rake; hay cutter; seven-foot bushhog; goose-neck trailer; twenty-foot trailer; Kubota Mule; tractor-mount tiller; Ford tractor; five-foot bushhog; four-wheeler; trailer-mounted spray rig; 14tractor-mounted seeder; post-hole digger; two guns; fertilizer spreader; hay Buffer; stock trailer; and horses.
This order was filed on June 4, 2012; the estate filed a timely appeal on June 26, 2012.
Standard of Review
Probate cases are reviewed de novo on the record; however, the decision of the probate court will not be reversed unless clearly erroneous. Ellis v. Ellis, 315 Ark. 475, 868 S.W.2d 88 (1994). 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. Minton v. Minton, 2010 Ark. App. 310, 374 S.W.3d 818. Our appellate courts defer to the trial court’s evaluation of witness credibility. Id.
Discussion
On appeal, the estate only contests Aud-ria’s receipt of farm equipment purchased in two transactions as her separate property — (1) one transaction on November 20, 2007, in which a used Massey Ferguson 2WD tractor with a loader and other attachments and a new Bush Hog cutter were purchased for a total of $37,400; and (2)a second transaction on March 10, 2009, in which a used Massey Ferguson 4WD tractor with a loader and other farm implements, a used John Deere square baler, and a new Massey Ferguson disc [fimower were purchased for a total of $40,400. It was undisputed that in the 2007 transaction that $16,400 of Lewis’s premarital farm equipment was traded in on the newer equipment, and the balance of $21,000 was paid with marital funds. It was undisputed that, in the 2009 transaction, $12,400 of Lewis’s premarital farm equipment was traded in on the newer equipment, and the balance of $28,000 was paid with marital funds. The estate contends that the trial court erred in denying it any interest in the newer farm equipment purchased in those two transactions. Specifically, the estate argues that it owns 100% of the equipment purchased in those transactions; alternatively, it argues that it has a 37% interest in the equipment purchased in those two transactions.
In support of its argument, the estate asserts that there was no dispute that non-tenancy-by-the-entirety property constituted 37% of the purchase price of the newer farm equipment. However, the estate never argued to the trial court an entitlement to a percentage interest in the newer farm equipment. This “percentage” argument is being made for the first time on appeal and is not preserved for appellate review. See Davis v. Davis, 2013 Ark. App. 180, 2013 WL 1007249 (holding that this court will not consider an argument raised for the first time on appeal but is bound by the scope and nature of the arguments made at trial). Even if the issue had been preserved, the cases cited by the estate are divorce cases, and our supreme court held in Cloud v. Brandt, 370 Ark. 323, 259 S.W.3d 439 (2007), that |fithe law regarding marital property does not apply in situations other than divorce, including the settlement of estates.
The estate next argues that it had successfully rebutted the presumption that the equipment belonged to Audria because the equipment was held as tenants by the entirety. The estate contends that, when the money was withdrawn from the joint farm account to purchase the newer farm equipment at issue, the tenancy by the entirety was destroyed, as evidenced by the bills of sale, because the newer farm equipment was placed only in Lewis’s name. The estate further contends that all the farm income was reported in Lewis’s name on the tax returns as a sole proprietorship, which therefore indicates that the farming operation was his alone, instead of a partnership between Lewis and Audria. We cannot agree with the estate’s contentions given the facts of this case.
Arkansas recognizes that an estate by the entirety can exist in personalty. Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991); Bostic v. Bostic Estate, 281 Ark. 167, 662 S.W.2d 815 (1984). The estate’s argument — that the bills of sale were only in Lewis’s name and that the farm income was reported as a sole proprietorship on the tax returns both require a finding that the presumption that the farm equipment was owned as tenants by the entirety was rebutted — ignores other evidence presented at trial. The fact that the bills of sale for the farm equipment are in only one spouse’s name (here, the husband’s) does not end the inquiry in light of other evidence. Martindale v. Estate of Martindale, 82 Ark.App. 22, 110 S.W.3d 319 (2003).
17There was testimony from Audria that during the marriage, she worked on both farms (hers and theirs) with Lewis; that they did not separate the income from her farm versus the marital farm but that they placed the proceeds from both farms into the farm account for farm expenses and the purchase of equipment; that the farm operation was a joint venture; that she and Lewis filed taxes jointly as husband and wife, and the depreciation on the tax returns for the farm equipment was taken jointly against her income, too; and that they never assessed any personal properly separately from one another during the marriage. With regard to the 2009 purchase of equipment, Audria testified that she and Lewis purchased the equipment together; that she signed her name on the bill for the equipment because Lewis told her to do so; and that she wrote a $28,000 check out of the farm account for the balance owed on the equipment. With regard to the 2007 purchase of equipment, Audria testified that she and Lewis discussed the purchase of the equipment pri- or to buying it; that she went with Lewis to make the purchase; that they were both purchasing the equipment; that she signed Lewis’s name on the invoice because he was too weak to sign it; and that she wrote a check for $7,000 and paid $14,000 cash from marital funds that had not been placed into the farm account. Audria said that there was never any discussion during either purchase that the equipment belonged only to him.
James Southall, the farm-equipment dealer from whom the disputed newer farm equipment was purchased, testified that both Lewis and Audria would purchase farm | ^equipment, always making purchase decisions together. He testified that it was his opinion that Lewis and Audria bought the disputed farm equipment together; that Audria signed the 2009 invoice, not Lewis; and that Audria wrote the checks. Southall explained that while the invoices for the farm equipment were both made out only in Lewis’s name, that unless there was a request to put both names on the invoice, typically he would put the male’s name on the invoice; however, Southall said that he never remembered Lewis requesting that his name only be placed on the invoices.
With regard to the tax returns, Becky Walker, Lewis and Audria’s accountant, testified that she had prepared their taxes from 1996 until the present, and that they always filed jointly. Walker explained that the farm was listed in Lewis’s name because Lewis and Audria were not in a formal partnership, which was very customary for a husband and wife; she said that Lewis and Audria could have split the farm income, but that again it was not customary to do so, so it was all reported in Lewis’s name. However, she said that the depreciation on the farm equipment was taken in both of their names, although it was listed on Schedule F of the farm page only in Lewis’s name. She said that the equipment was depreciated against the farm income and the rest of their marital income, and that she was never instructed by either Lewis or Audria to separate out the income between them.
While the facts of Martindale, supra, are different than the facts of the instant case, we find that case instructive. There, Sherman and Sharon Martindale were married in 1985, and began a cattle business in 1990. When Sherman died in January 2001, a | ¡isubstantial amount of cattle and farm equipment remained. In his will, Sherman purported to give his three daughters from a previous marriage an interest in the cattle and the farm equipment; Sharon claimed that the property was hers as tenancy by the entirety. Sharon presented evidence that the farming expenses were paid from a joint checking account; that she and Sherman executed a promissory note and borrowed money to purchase cattle and farm equipment, with the down payments and the monthly payments being drawn from their joint checking account; and that while money from Sherman’s separate property as well as proceeds from the sale of cattle and hay were all deposited in the joint account, she never considered any money in the joint account to be just Sherman’s. The trial court found that the cattle and the farm equipment were owned solely by Sherman; this court reversed that decision, holding that a party can destroy the nonmarital status of property by placing it in an account held jointly with a spouse, with a presumption arising that a spouse placing money in a joint account intended to make a gift of an interest in that money to the other spouse. This court further held that the fact that the cattle certificates and the security agreements and bills of sale for the farm equipment were only in Sherman’s name did not end the inquiry in light of other evidence, and the fact that the joint account was generated, in part, by Sherman’s separate assets did not render the joint account, or purchases made from the joint account, Sherman’s sole property in the absence of clear and convincing evidence of separate ownership.
I min our case, we recognize that we are not dealing with a Martindale titled checking account that had money placed in it from a separate source; rather, we are dealing with farm equipment Lewis owned prior to marrying Audria that was never reduced to money and placed into an account but instead was a direct trade-in to the farm-implement company as credit on newer farm equipment purchased by Lewis and Audria together, with the balance of the newer farm equipment being purchased using marital funds. However, the outcome in the present case is the same as in Martindale, supra — that a party can destroy the nonmarital status of property by taking certain actions. Here, Lewis took his premarital farm equipment that was being used by him and Audria in their joint farming operation since 1993, and that equipment was traded in on newer and different farming equipment that was thereafter used in his and Audria’s farming operation. Lewis knowingly took his separate property and commingled it with marital property to purchase the newer farm equipment in question both in 2007 and in 2009, thereby destroying the non-marital status of his separate properly. We cannot say that the trial court’s finding that the farm equipment was Audria’s sep arate property by virtue of tenancy by the entirely is clearly erroneous.
Affirmed.
WALMSLEY and WHITEAKER, JJ., agree.
. Additionally, Audria and Lewis together farmed 150 acres that Audria inherited prior to her marriage that always remained solely in her name and is not at issue in this appeal.
. After the trial court’s ruling regarding the personal property, Audria formally withdrew her "Election to Take Against the Will and Election for Statutory Allowances,” which the trial court allowed her to do.
. The bushhog and one of the Massey Ferguson tractors that Lewis attempted to bequeath to his son are items of farm equipment awarded to Audria and are the subject of the estate’s appeal. Both tractors were Model 4235 tractors. | [
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BILL H. WALMSEY, Judge.
| iThis casé involves a construction dispute between appellant Southern Building Services, Inc. (“SBS”), and appellee City of Fort Smith, Arkansas (“City”). Following a three-day bench trial, the circuit court awarded the City liquidated damages of $134,250, plus interest at the rate of 6% per annum from June 18, 2008, for SBS’s failure to timely achieve substantial completion of the project. It also awarded the City $30,999.96 for the cost of completing the project and $51,262 for attorney’s fees. On appeal, SBS argues that the circuit court erred in each of those awards. The City cross-appeals, arguing that the court erred in not awarding the City liquidated damages for SBS’s failure to achieve final completion of the contract within fifteen days after substantial completion. We affirm in part, reverse and 12remand in part, and vacate in part on direct appeal. We affirm on cross-appeal.
On April 17, 2007, SBS entered into a contract with the City to construct six structures at Lake Shepherd Springs Recreational Area (the project): the Pool House, Upper Bath House, Lower Bath House, Marina Office, Day-Use Pavilion, and Day-Use Restroom. The contract required substantial completion of the Day-Use Restroom within 120 calendar days of notice to proceed and of the other five structures within 210 calendar days from notice to proceed. Final completion was required within fifteen days of substantial completion. The contract provided specific, different liquidated damages for failure to meet the substantial-completion deadlines for the Day-Use Restroom ($250 per day) and for the other five structures ($750 per day). A third liquidated-damage amount of $200 per day was provided for failure to meet the final completion deadline. The engineering firm overseeing construction and acting as the City’s agent and representative was Mickle Wagner Coleman, Inc., with Bobby Aldridge as the lead engineer. The architectural firm overseeing the project was Tim A. Risley and Associates.
A notice to proceed was issued on May 11, 2007, and SBS commenced work on May 14, 2007. According to SBS, it encountered many delays beyond its control, such as weather, interference by other contractors, utility issues, layouts and elevations, and faulty design, among others. By March 2008, it had reached substantial completion of the Day-Use Restroom, and substantial completion of the other five structures occurred on May 5, 2008. Under the contract, the engineer acted for the City, and the City was to execute change orders recommended by the engineer. The contract price could be changed only by change border, and the engineer and the City directed that all changes of time and price would be approved in one final reconciliation.
In June 2008, inspection of the completed project was scheduled, and the City advised the bonding company that it would be authorizing final payment. In July 2008, SBS was given what it calls the final change order to indicate that work under the contract was complete. This final change order reflected an approved adjustment to the contract of $15,401, making the total contract price $1,698,401. It also showed that thirty-two additional days had been added to the contract time and that liquidated damages had not been assessed. Liquidated damages were later assessed at $134,250, although they did not appear in the final change order. SBS requested a waiver of the liquidated damages and additional contract time. In December 2008, SBS was informed that it had agreed to the final change order and was contractually bound by the order.
By resolution adopted on March 16, 2010, the City terminated the contract and assessed liquidated damages against SBS in the amount of $134,250 for failure to timely achieve the substantial-completion deadlines for the six buildings. The resolution also assessed liquidated damages in the amount of $156,600 for failure to achieve final completion of the contract work.
On March 11, 2010, SBS sued the City for an additional sum of $183,701.22 allegedly owed, together with reasonable attorney’s fees. The complaint asserted causes of action based |4on breach of contract, promissory estoppel, constructive fraud, and equitable estoppel. The City answered and counterclaimed for liquidated damages for delay in achieving both substantial completion and final completion and for the cost of completing'SBS’s work. In its answer and counterclaim, the City contended that work costing the sum of $20,000 to complete the contract remained undone. The City sought liquidated damages totaling $290,850 and, after applying a credit of $183,701.22 for “sums due for work accomplished under the contract,” asserted entitlement to the sum of $107,148.78, together with prejudgment interest and a reasonable attorney’s fee.
After both parties moved for and were denied summary judgment, the case proceeded to a three-day bench trial held in February 2012. The court filed its written judgment on February 22, 2012. In it, the court characterized “the issue [as] a simple one, whether [SBS] should be assessed liquidated damages and if so in what amount.” The court found that, when it came to a time-related change order, the City had told SBS to document the delays and they would be addressed at the end of the contract if they could not be resolved within fifteen days. However, the court also found that SBS failed to do that and “just chose not to make substantiated requests for additional time until November 26, 2008, and at trial.” Although SBS contended that the time frame for completion of the projects excluded weekends and holidays, the court noted that there was testimony that SBS did in fact work on some weekends. SBS’s contention that it was entitled to additional days because of various reasons, including weather, lack of supervision, other contractors, and dumpster and electrical-related problems, was rejected because SBS, by its own admission, failed to document the delays. 15Although the contract required the job being finally completed within fifteen days of substantial completion, the court found that SBS failed to do so. The court found it “amazing” that SBS either could not or would not complete the multiple punch lists. The court concluded that the City was entitled to liquidated damages in the sum of $134,250 plus interest at the rate of 6% per annum from June 18, 2008.
Turning to the City’s counterclaim, the court found that, despite the difficulty in getting SBS to complete the job, the City failed to avail itself of its right to terminate the contract until March 2010. The court noted that the law was clear that an injured party cannot sit idly by and allow liquidated damages to increase. According to the court, the breach occurred in May 2008, but the City sat idly by and allowed liquidated damages to escalate. The court concluded that the City was entitled to judgment for $30,999.66 for remedial work to complete the project and that $20,000 of this amount had been withheld by the City. SBS filed its notice of appeal on March 21, 2012. The City filed its notice of cross-appeal on March 30, 2012.
The City filed its motion for attorney’s fees on March 7, 2012, seeking $51,262 for fees. By order entered on April 13, 2012, the circuit court awarded the City $51,262 in attorney’s fees, to be paid within sixty days. SBS filed its notice of appeal from the fee order | (ion May 11, 2012.
In bench trials, the standard of review on appeal is not whether there is any substantial evidence to support the finding of the court, but whether the court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Pine Meadow Autoflex, LLC v. Taylor, 104 Ark.App. 262, 290 S.W.3d 626 (2009). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. First Nat’l Bank v. Garner, 86 Ark.App. 213, 167 S.W.3d 664 (2004). Recognition must be given to the circuit court’s superi- or opportunity to determine the credibility of witnesses and the weight to be given to their testimony. Brown v. Blake, 86 Ark.App. 107, 161 S.W.3d 298 (2004).
I. Liquidated Damages
SBS first argues that the circuit court erred in awarding liquidated damages to the City for several reasons, including that the City failed to assess liquidated damages in the final change order; that the City had accepted the final change order; that the City improperly prepared the final pay application and changed the required pay-application form, thereby breaching the contract; and that the City also breached its alternative procedure for closing out the contract. SBS also argues as part of this point that the City failed to include additional days for delays caused by events beyond SBS’s control.
SBS spends a great deal of its brief arguing that the City breached the contract by failing to use the forms and procedures specified in the contract , for the assessment of liquidated damages and closing out the contract. The circuit court made two findings |7regarding these issues: (1) the City never executed the change order because SBS never completed the work; and (2) SBS would not have signed any change order assessing liquidated damages, making the issue of which party was supposed to prepare the documents irrelevant. Instead of explaining how the City’s failure to follow the correct forms and procedures precludes its liability for liquidated damages for work that was not timely completed, SBS argues that it was entitled to additional days to offset the liquidated damages. Relatedly, the circuit court found that SBS failed to document its requests for additional time and relied on the admission of SBS’s president that he failed to document his requests. SBS also argues that the City treated it differently from other contractors who had liquidated damages either reduced or waived entirely. Although the court felt that SBS might have been treated differently or more harshly than other contractors, it reiterated its finding that SBS failed to document its requests for additional time.
At trial, Brian Puckett of SBS testified that there were extensive delays beyond SBS’s control, including the City wanting SBS to undertake tasks that were assigned by the contract to the City. There were also delays resulting from weather, problems with moisture on the site, problems with utilities needing to be relocated, problems with other contractors, no plans being available at times, and problems resulting from the failure of the engineer to be on site.
Some of the correspondence SBS cites in support of its argument relates to the change orders that were approved, making it difficult to determine whether SBS had, in fact, documented the delays for which it is claiming additional time. SBS states that it was undisputed that it was supposed to document the delays as they occurred so that the issue |scould be resolved at the conclusion of the project. It is also undisputed that SBS submitted ten requests for change orders that involved additional days and that these requests were approved, although some were in amounts different from the requested amount. SBS acknowledged that it had submitted no other written requests for additional time prior to achieving substantial completion of the project in May 2008.
Because SBS did not submit any additional requests for additional days to complete the project in accordance with the terms of the contract, it is in no position to argue that the City should have given it those additional days. Accordingly, the circuit court did not clearly err in failing to give SBS those days.
We do, however, find clear error with respect to one aspect of the award of liquidated damages: the circuit court’s award of prejudgment interest at 6% from June 18, 2008. There are two problems with this award. First, the City only sought prejudgment interest from March 16, 2010, the date it terminated the contract. Second, the City has had the use and possession of $183,701.22 it admits was due SBS since 2008. SBS has consistently argued that it was entitled to be paid for the work it performed. It filed this action to recover the sums due it. It argued in its briefs to the circuit court that it was entitled to be paid. The City admitted that SBS was still owed for work accomplished under the contract in the so-called final change order, in the City’s answer and counterclaim and amended answer and counterclaim, in the City’s posttrial brief, and at oral argument before this court. However, |nthe circuit court failed to offset the City’s award against the amount admittedly owed to SBS. We therefore remand the case to the circuit court to apply the setoff.
II. Completion Damages
Next, SBS argues that the circuit court erred in awarding the City additional monies to complete the contract. Under this point, SBS contends that the City was attempting to close out the contract in June and July 2008 and argued that only $1400 worth of work remained to be performed. Brian Puckett testified that SBS had completed the punch-list items. Based on this assertion, the City advised the bonding company that the project was substantially complete, with only the final inspection remaining. This position contrasted with the City’s assertion at trial that $80,999.96 worth of work remained unfinished. The City also points to other evidence that it says supports the circuit court’s ruling. For example, Jack Dillon, an engineer and the City’s assistant director of utilities, explained his statement to the bonding company as being based on a representation from SBS that the punch-list items were completed. Dillon also said that SBS was continuing to work on the project. In addition, the City argues that the documents prepared to close out the contract in June and July 2008 cannot be used because they were never executed and SBS never completed the work. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous. Rymor Builders, Inc. v. Tanglewood Plumbing Co., 100 Ark.App. 141, 265 S.W.3d 151 (2007). Indeed, the circuit court made an' express finding that Dillon was the most candid witness. We defer to the circuit court’s superior position in credibility determinations. Brown, supra.
| mill. Attorney’s Fees
In light of our remand to the circuit court to apply the setoff, we need not discuss SBS’s third point in which it argues that the circuit court abused its discretion in awarding attorney’s fees to the City. We vacate the award of attorney’s fees, and upon remand and entry of a new judgment, the circuit court may redetermine whether there is a prevailing party who is entitled to attorney’s fees.
IV. Cross-Appeal
We now turn to the City’s cross-appeal wherein it argues that the circuit court erred in not awarding it liquidated damages for SBS’s failure to achieve final completion of the contract work within fifteen days after substantial completion. The City claims final-completion liquidated damages at $200 per day from May 21, 2008, through the City’s termination of the contract on March 16, 2010, for total liquidated damages of $182,800. The circuit court found that the City sat idly by and allowed the liquidated damages to accrue without taking action to mitigate its damages. The City contends that the circuit court erred because SBS never achieved final completion of the project. Specifical ly, the City argues that contractual provisions calling for liquidated damages are enforceable and, despite the court’s finding that it failed to mitigate its damages, it was entitled to some award of liquidated damages. The circuit court was correct.
The doctrine of mitigation of damages applies in both tort and contract cases. Bill C. Harris Constr. Co. v. Powers, 262 Ark. 96, 554 S.W.2d 332 (1977); D. Dobbs, Remedies § 3.7 at 187 (1973); compare Restatement (Second) of Torts § 918 (1979), with Restatement (Second) of Contracts § 350 (1979). This duty to mitigate damages is sometimes called the “doctrine of avoidable consequences.” It limits the amount of recoverable damages in that a party cannot recover damages resulting from consequences that he could reasonably have avoided by reasonable care, effort, or expenditure. Powers, supra. The question of whether the plaintiff acted reasonably in mitigating damages and the amount of damages that could have been avoided is for the trier of fact. Id.; Taylor v. George, 92 Ark.App. 264, 212 S.W.3d 17 (2005); Quality Truck Equip. Co. v. Layman, 51 Ark.App. 195, 912 S.W.2d 18 (1995).
It has long been held that an injured party cannot collect both actual damages and liquidated damages because liquidated damages serve as a contractual substitute for actual damages. Shoptaw v. Puterbaugh, 263 Ark. 778, 567 S.W.2d 288 (1978); Robbins v. Plant, 174 Ark. 639, 297 S.W. 1027 (1927). Here, the City recovered approximately $31,000 as the cost to complete the project (the City had already withheld $20,000 of the $31,000). Moreover, Jack Dillon testified that there was no delay in the opening of the project and that the City was not harmed by the actions of SBS. Thus it would be unfair to SBS and a windfall to the City to allow recovery of both actual damages to complete the work and liquidated damages for SBS’s failure to achieve final completion of the project. See Phillips v. Ben M. Hogan Co., 267 Ark. 1104, 594 S.W.2d 39 (Ark.App.1980).
Affirmed in part; reversed and remanded in part for further proceedings consistent with this opinion; and vacated in part on direct appeal. Affirmed on cross-appeal.
WHITEAKER, J., agrees.
GLOVER, J., concurs.
. This is the difference between the final contract price and the money previously paid to SBS.
. As explained infra, although the court believed that it was addressing SBS’s complaint and the City’s counterclaim, all the issues addressed by the court were related to the City’s counterclaim.
. In its findings, the circuit court found that the City was entitled to $30,999.66 for remedial work to complete the contract. However, later the sum was listed as $39,999.66. At oral argument, the parties stated that this was merely a typographical mistake.
. There is no merit to the City’s contention at oral argument that it was entitled to withhold the approximately $183,000 as a retainage. The contract limits the retainage to 5% of the contract price. In this case, a proper retain-age would be approximately $84,000.
. This figure differs from the amount the City-sought in its ans.wer and counterclaim. The City sought $156,600 in liquidated damages in its resolution terminating the contract. No explanation for the difference is given. | [
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Lacy, Judge,
delivered the opinion of the court:
In inspecting the record in this case we find some difficulty in determining in what court the suit was originally commenced. There are several entries denominating the court as the County Court of Independence, and others showing it was the Probate Court of that county. It is clear that the first tribunal had no jurisdiction in the' premises, and it is equally manifest that the latter had. Taking the entries, however, separately and connectedly together, we think the record shows that the proceedings were had before the Probate Court. The writ of mandamus sued out was directed to the Judge of the Probate Court, and the judgment or allowance was entered up before the Probate Court.
The only question to be decided is, as to the effect of the guarantee. It is contended on the part of the appellant, First, that it is void, because it does not show any consideration, as required by the statute of frauds; and secondly, that there was no proof of a de mand on Randolph and Keefhley, of their refusal to paj, and of notice to the appellant. If the first question turned upon the principles of the common law, it might be somewhat questionable whether the guarantee contained sufficient consideration. But this is a guarantee executed in the city of New Orleans, and of course the civil law, the lex loci, fixes the appellant’s liability. This frees the case from all difficulty; for the civil law is express upon the point, and holds the guarantee to be good without proof of consideration. It goes upon the principle, that he who undertakes for another, shall be bound by his agreement; and that he cannot exonerate himself from his contract, by alleging that he received no consideration for its execution. According to the civil law the party who enters into an agreement voluntarily is bound by his stipulation, and he who accepted the guarantee looks to it for the ultimate fulfilment of the original undertaking. According to the Louisiana Code “ suretyship is an accessary promise by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation, if the. debtor does not.” Louisiana Code, Art. 3004; Herries vs. Canfield, 9 Martin 385; Woods' Civil Law 227. Pothier says, “suretyship is a contract, by which a person obliges himself on behalf of a debtor to a creditor for the payment of the whole, or a part of what is due from such debtor, by way of accession to his obligation. The contract which intervenes between the security and the creditor is not an agreement of beneficence, for the creditor, by this contract, receives nothing more than is due him. He only procures a security for what is due him, without which he would not have contracted with the original debtor.” Pothier on Obl., part 2, ch. 6, p. 365.
The obligation of the security towards the creditor is to pay him in case the debtor should not satisfy the debt, and the property of such debtor is to be previously discussed or seized, unless the security should previously have renounced the plea of discussion, or be bound in solido jointly with the debtor, in which case the effects of his engagement are to be regulated by the same principles which have been established for debtors in solido.” 11 L. R. 211, Union Bank vs. Forstall; 2 Greenleaf 341; 4 Greenleaf 72; 17 Serg. and Rawle 354; 8 Cow. 168. It is a stipulation to pay in case the original debtor does not, and it is an auxiliary obligation. The right which the security would have of referring the creditor to the discussion of the principal debtor, is a right in equity as well as in strict justice. The creditor ought not to be allowed to enforce the payment of the security without notice of the non-payment of the principal debtor. A debt should be paid rather by those who are the real debtors, and who have profited by the contract, than by those who are debtors for others; a security, or guarantee, being but an engagement collateral .to, and arising out of the original obligation. Poth. on Obl. 236, and 269; 12 East 227; 1 Domat C. L. 205; 1 Cranch 181; 3 Cranch 311; 1 Cond. R. 366; 1 Mason 368. In Douglass, and others, vs. Reynolds, and others, Peters 127, Judge Story uses this language: “ By the very terms of this guarantee, as well as by the general principles of law, the guarantors are only collaterally liable, upon the failure of the principal debtor, to pay the debt. A demand upon him, and failure on his part to perform his engagements, are indispensable to constitute a casus fcederisP The creditor is not bound to in- fj stilute any legal proceedings against the debtor, but he is required tof| use reasonable diligence to make demand, and to give notice of the || non-payment. The guarantors are not to be held to any length oftt/ indulgence of credit which the creditors may choose; but have a right to insist that the risk of their responsibility shall be fixed and terminated within a reasonable time after the debt has become due. The objection taken by the defendant below to the want of notice of non-payment by Randolph and Keethley, upon the bill for which Montgomery, Kelly & Co., became the guarantors, is, in our opinion fatal. The judgment of the Circuit Court must be reversed. | [
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Lacy, J.,
delivered the opinion of the court:
The points raised by the assignment of error, present, first, the question of the power and authority of the Judge who presided at the trial, to try and determine the cause; and, secondly, a variance be tween the declaration and the record adduced in evidence. The record shows that Ihe Judge who presided upon the trial, was specially commissioned for that purpose; and it nowhere contains any statement or presumption by which his power or authority can be questioned. This Court is therefore bound to presume that he acted in obedience to his authority.
The doctrine of presumption or intendment of law, in favor of the judgments and decrees of the Circuit Courts, has been so often stated by us, that it is deemed unnecessary to add any thing further in support of it. He who impeaches the opinion of the Court below, must make it appear in what the error consists. If he fail to do so, the in-tendment of law operates to affirm the proceedings.
This case was tried upon the issues of mil tiel record and nil debut. The declaration avers that the defendant below was indebted, on a judgment of a sister State, in the sum of two hundred and seventy-three dollars and fifty-eight cents, in debt, and the sum of nine dollars and thirty-two cents, as costs. The record offered in evidence corresponds with the sum laid in damages, but there is no given sum adjudged as costs.
There were three executions that issued upon the judgment. In the first, the amount of costs stated is ten dollars two and a half cents; in the second, ten dollars and seventy-three cents; and in the third, eleven dollars forty-three and a half cents. The inquiry now is, does' the record offered in support of the declaration correspond with it, or is there such a variance as will be fatal upon an objection to it as evidence?
It is a general rule, that the contract must be stated correctly; and if the evidence differ from the statement, the whole-foundation of the action fails, because the contract is entire in its nature, and must be proved as laid. Ist Chilly's Pl., 334.
In debt on judgment, care must be taken that there be no variance between the declaration laid and the judgment offered in evidence. Such variance is in general fatal. A party is bound by his own allegation to strict proof of a written document. Any variance that affects its sense, or changes its legal tenor and effect, will be fatal. 3 Starkie Pl., 4; P. 15, 87; Dyer and another vs. Stevens, 6 Mass. R., 387; Smith vs. Drew, 5 Mass. R., 514. In Thompson vs. Jameson, 1 Cranch, 383, it was held, in an action of debt on a decree in chancery, for J5860 12s. Id., with interest from a certain day to the date of the decree, if the declaration be only for the principal without the interest, the variance is fatal. So it has been ruled in Rositee vs. Downs, 4 Con. R., 291.
Each execution shows a different sum as costs, and neither corresponds with the averment made. The variance between the allegation and the proof offered in support of it, was therefore fatal; and the judgment of the Circuit Court must be reversed, with costs, and the cause remanded, with leave for the parties to amend their pleadings, if asked for.
After which, at the same term, Trapnali. and Cocke filed the following petition for re-hearing:
The defendants in error, William Bell & Co., pray the Court for a re-hearing of this cause.
The judgment rendered by the Pulaski Circuit Court is reversed for the alledged variance between the declaration and the record produced in evidence, the admission of which was objected to by the defendant, in the Circuit Court, and a bill of exceptions taken to the judgment of the Court overruling the objection.
It is stated, in the opinion of this Court, that the cost, alledged in the declaration, is $¡9 32, and that there are only three executions contained in the record, and that the costs stated in neither of them accord with the declaration. The Court will see,, by reference to, and a re-examination of, the record, that there were four executions issued, instead of three; and that, in the first, which was issued upon the judgment, the costs are stated to be f>9 32, and is in exact correspondence with that allegation of the declaration.
For this, the defendants in error pray a re-hearing of the cause.
The re-hearing having been granted, and the case reconsidered,
Ringo, C. J.,
delivered the opinion of the Court:
In the opinion heretofore delivered in this case, the Court inadvertently overlooked the fact, that the transcript of the record pro duced and offered as testimony by the defendants in error on the trial of this case, to support, on their part, the issue joined on the plea of nul tiel record, contains four instead of three executions, issued upon the judgment therein mentioned; and, proceeding upon such mistaken view as to this fact, stated that three executions, only, appeared, by said transcript, to have been issued on the judgment therein mentioned, and that the costs, as stated, in no one of them, correspond, in amount, with the sum stated in the declaration, as having been adjudged to said defendants, and decided thereupon, that there was a variance, in this respect, between the allegations in the declaration descriptive of the judgment upon which the suit is founded, as to the costs, and the testimony adduced in support thereof, for which the Court ought to have sustained the objection of the plaintiff in error to its admission on the issue joined, and excluded it from the case, when, in fact, the first one of the four executions contained in said transcript, and issued on the judgment therein mentioned, contains an amount corresponding, exactly, with that stated in the declaration as having been adjudged to the defendants in error for their costs, which is stated, on the face of said execution, to have been adjudged to the defendants “for their costs in that behalf expended, whereof the said Caldwell and Boits'are convict, as appears to us of record.” Upon this fact being made known to the Court by the petition filed for a re-hearing, the same was granted; and the case having been again heard, and the opinion and judgment of this Court pronounced therein re-considered, we still entertain the opinion that there is a material variance between the allegation in the declaration, as to the judgment for costs, and the judgment contained in the transcript offered as testimony on the trial, on account of which the motion of the plaintiff in error to reject it ought to have been sustained, and the transcript rejected, notwithstanding the exact correspondence between the amount stated in the declaration and in the first execution as having been adjudged to the defendants for their costs, as before mentioned.
The defendants in error sue as surviving partners of John Hall, and in their declaration set forth and describe the judgment upon which they sue, as follows: “For that, whereas, on the 9th day of July, 1839, in the Circuit Court of Christian county, State of Kentucky, in the said county of Christian, by the consideration and judgment of said Court, the said plaintiffs, and their deceased co-partner, as partners as aforesaid, recovered, against the said defendant and a certain John Botts, who is not sued herein, the sum of two hundred and seventy-three dollars and fifty-eight cents, which, in and by said Court were, then and there, adjudged to the said co-partners, doing business under the style of Wm. Bell & Co., as aforesaid, for their damages, which they had sustained by reason of the non-performance, by the said defendant and said Botts, of certain promises and undertakings then lately made by the said defendant and the said Botts to the plaintiffs and their deceased co-partner aforesaid, as also the sum of nine dollars and thirty-two cents for their costs by them about this suit in that behalf expended, whereof the said defendant and the said Botts, as by the record and proceedings thereof, remaining in said court more fully appears.” The plea of nul tiel record imposes on the party pleading a record, the necessity of showing, on the trial, such record as he has set forth and described in his pleading; and if he fails to do so, the judgment, as to .any right derivable from such record only, must be against;the party pleading it; and it may be remarked, here, that allegations descriptive of a record must, according to the well established rules of pleading, be supported by testimony corresponding therewith in every part essential to show that the record adduced is the same record described in the pleading. The allegations above quoted from the declaration, according to the literal reading, or any legitimate construction thereof, are descriptive of the record of a judgment given and entered up specifically for the sum of ‡9 32 in numero, while the record offered as testimony to support said allegations, as to the costs of suit, contains no such adjudication; but, on the contrary, shows a judgment in favor of the defendants in error, and John Hall, their deceased partner, against the plaintiff in error and John Botts, that the former recover of the latter “their costs by them about the suit in this behalf expended,” leaving the amount of costs to be subsequently taxed, or otherwise ascertained and determined in some manner authorized by law; and, in this respect, the judgment contained in the transcript adduced in testimony on the trial, not only varies from the allegations descriptive of the judgment mentioned in the declaration, but differs also from the judgment for costs as recorded in the Courts of England and some of the United States, where the' common law practice of taxing the costs before the final judgment is signed or recorded, and, when the amount is ascertained and determined, of inserting it in numero in the judgment itself prevails, in which case the form of allegation adopted in this case, as descriptive of the judgment for costs, would be proper, and describe the judgment truly. But such allegations surely do not, either appropriately or truly, describe such a judgment for costs as the one contained in the transcript before us, which neither determines the amount of costs recovered, nor indicates in what manner the amount may be ascertained or determined; consequehtly, the amount of costs recovered by such adjudication cannot be proved by the judgment itself; but must be established by something extrinsic. And therefore, when no specific sum is adjudged to the party for his costs, he should not, in declaring upon such judgment, describe it as a judgment for costs in numero, but should describe it truly, and then, by appropriate aver-ments, show the amount of costs to which he is entitled, upon and by virtue of the judgment. And the case is not changed, notwithstanding a specific sum is mentioned in each execution issued upon such judgment as having been adjudged for costs, because the execution is no part of thev judgment upon which the action is founded, and which alone confers the legal right asserted in the declaration. Besides which, the sum stated in each execution as having been adjudged for costs, varies in amount; and therefore, if the judgment warrants such final process, and the costs so stated therein can be legally recovered by virtute of such judgment, these facts, alone, would prove that the adjudication is not for any specific sum; and an allegation so describing it, neither accords with the letter, or the legal operation and effect of the judgment, which is, both according to the literal reading, and legal operation and effect thereof, indeterminate as to the sum or amount of the costs to which the party is entitled.
We are, therefore, of the opinion, that there is a material variance between the judgment contained in the transcript of the record adduced in testimony on the trial of the case, and the judgment described in the declaration; and that the Circuit Court erred in overruling the objections thereto of the plaintiff in in error, and admitting said transcript as evidence upon the issue joined, and deciding thereupon that there was such record as was set forth and described in the declaration; and for this error, the final judgment of the Circuit Court given in this case ought to be, and the same is hereby, reversed, annulled, and set aside, with costs; and the case remanded to the Court from whence it came, for further proceedings to be there had therein, according to law, and not inconsistent with this opinion, with instructions to said Circuit'Court to suffer the parties to amend their pleadings, if they shall ask leave to do so. | [
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Dickinson, Judge,
delivered the opinion of the Court:
The demurrer to the rejoinder of the plaintiff, below, raises the question, whether or not the statute of limitations will run against a party who has never come within the limits of our State. The statute does not commence running until a complete cause of action has accrued, and this occurs when the debt or duty can be put in suit, and there is a party capable of suing. Whenever the statute commences running, it does not stop for any obstacle, but continues to run on.
Statutes of limitations are municipal regulations founded upon local policy; and as they regard the remedy, and not the right of contract, they possesano binding power beyond the jurisdiction of the particular StateB or governments that enact them. As they do not enter into, or form any part of, the contract, the ¿ex fori, and not the lex loci, applies in their interpretation. A foreign statute of limitations cannot, therefore, be pleaded to a suit instituted here; and so it has been repeatedly ruled by all the English and American decisions.
In the present case, both the plaintiff and defendant resided beyond the limits of the State when the contract was entered into. Since that time, the plaintiff in error has removed to this State, where he now resides; the defendant still continuing to be a citizen of Kentucky.
To the defendant’s plea of the statute oflimitations, the plaintiff replied, that he was saved from its operation, because he has always been a-citizen of another State. This case arose under our Territorial statute oflimitations, but we apprehend the principle we are about to lay down will apply, with equal force, to the statute of limitations under our state government. Steele & McCamp. Dig. 381, sec. 1 and 2.
The statute, after enumerating the class of cases in which it will run, and which embraces the cause of action now under consideration, contains, in ,express words, a saving in favor of infants, married women, persons of unsound mind, and persons residing beyond seas. These classes of persons the Legislature saved from its operation, until after their disabilities should be removed.
The enquiry now is, what is the meaning of the term beyond seas? This proviso is not contained in the statute of 21st James, and in the case of Dupleen vs. De Rose, 2 Ver., 154. Lord Chief Justice Cow-pek. remarks, “ that it was plausible and seasonable that the statute of limitations should not take place, nor the six years be running, until the parties came within the cognizance of the laws of England, but that that must be left to the Legislature.”
The term beyond seas first occurs in the proviso of the statute of Ann, from which our statute of limitations is derived, in England, the term meant persons who resided out of the realm, and, as such, they were declared to be beyond seas, whether they were either native born citizens or foreigners.
The expression beyond seas has received, in our country, a fixed and determined meaning. It is now well settled, that it applies to persons who are beyond the jurisdiction of the state; as well to foreigners who have never come within the jurisdiction, as to our own citizens who may be absent, and against whom the statute never commenced running.
The different members of our confederacy are regarded in the light of foreign governments, so far as their own municipal regulations are concerned; and therefore, the citizens of one state cannot be barred by the statute of limitations of another state, unless they bring themselves within its jurisdiction; and so it has been repeatedly ruled by all the" authorities. Shelby vs. Guy, 11 Whea., 361; Bank of Alexandria vs. Dyer, 14 Pet., 141; Stritfort vs. Graeme, 3 Wil., 145; Williams vs. Jones, 13 East., 449; Hall vs. Little, 4 Mass., 203; Ruggles vs. Keeler, 3 J., 269; Chonequa vs. Mason & Brown, 3 Gall. 342.
The application of the principle here stated, clearly shows that the cause of action of the plaintiff below, is saved by the proviso of our statute, and consequently the defendant’s rejoinder to the replication must be adjudged insufficient, because it does not contain any matter that will defeat the'cause of action.
The judgment of the Court, below, is therefore affirmed, with costs. | [
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Bicktnson, J.,
delivered the opinion of the court:
Taylor sold his improvement upon which he claimed a pre-emption right under the act of eighteen hundred and twenty-nine, and covenants to prove up the pre-emption, according to law, and convey it to Hamilton. He was also to deliver him possession of the improvements within twenty days from the date of the contract. And Hamilton was to make Taylor a warrantee deed for an adjoining quarter section, (which Taylor was, at this time, improving for the benefit of Hamilton,) as soon as he could get a right from government. If Hamilton failed so to do, he was to re-deliver the possession of the fractional quarter to Taylor, and receive from him that of the quarter section. If the pre-emption right was affected by the sale, he was to pay Taylor the additional sum of fifty dollars for the labor done on the quarter section, previous to the contract. It was further covenanted that, in the event of a failure on the part of Hamilton to make the deed, each party should pay rent to the other. Hamilton from the date of the contract, Taylor while in possession, and each to pay the other for improvements made during the time.
The contract is ambiguous, but such is the only reasonable and common-sense construction, that can be given, to carry into effect the intention of the parties. The covenants cannot be dependent; the performance of the one does not depend upon the performance of the other, for Taylor covenants that he has a pre-emption right, and that he will prove up and convey it. Whereas, Hamilton only agrees that he will convey so soon as he can procure a title from government. The period for the performance of one, may arive before it is possible that the other can contract; therefore, it is not a prior condition, that Hamilton shall convey first. They are not mutual and concurrent, because the first act is contemplated to be done by himself, by proving up and conveying the pre-emption. They must, therefore, be independent, and either may recover damages for a breach of the covenant in his favor, and the non-performance of one, is no excuse for the other.
The whole question turns upon the breach, which must be governed by the nature of the stipulation. It should be assigned in the words of the contract, or in words co-extensive with the import and meaning of it, if, in so doing, a distinct breach is thereby shown, but must not vary from the substance and effect of it. The covenant is, “ That Hamilton will make a warrantee deed as soon as he can gat a right from government; and upon this covenant the whole question turns. The breach is, “That he did not make the plaintiff a warrantee deed to the quarter section, in said covenant mentioned; nor hath said defendant procured any title from government for said quarter.” There is no allegation in the declaration, that Hamilton has ever procured the title, or of his inability to do so, in consequence of the land not being subject to sale, or that it was owned by another person ; or that he neglected and refused to procure the title when he could have done so; and,it is therefore, clearly insufficient., Nor is there any notice of request. In all cases where actual notice of any fact is necessary, or a special request is, either by the terms or by the nature of the contract, the condition of the liability, such notice in the one case, and such request in the other, must be specially averred in the declaration. Com. Dig. Pl. C. 69, 73; 14 East 500; 5 T. R. 409.
For without such averments, no complete right of action can appear from the declaration. The want of such a special averment is also fatal. When such an averment is necessary to be stated, the general averment, although often requested, is not sufficient. 1 Saund. 33, n. 2; Wallis vs. Scott; 1 Strange, 88; that being but matter of form. As the declaration shows neither a sufficient breach, nor a special averment of request, the judgment is affirmed. | [
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The Court,
the Chief Justice dissenting, held that the writ properly issued, a Judge having power to issue the same.
And afterwards, the motion to quash being renewed, and the want of fifteen days between the teste and return day assigned as a ground, by leave of the Court, the objection was held fatal, and the writ quashed. | [
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Dickinson, J.,
delivered the opinion of the Court:
This is an action of assumpsit, instituted by Didier and others against Galloway and others, by attachment. The fifth section of thé act regulating this mode of proceeding, (Rev. Stat. Ark., 116), requires that the plaintiff shall, at the time of filing his declaration, also file with the Clerk a bond to the defendant, with sufficient security, to be approved of by such Clerk, in double the amount of the debt sworn to, “ conditioned that he will prove his debt or demand on a trial at law, or that he will pay such damages as shall be adjudged against him.”
Under the old law, the writ issued as of course in all instances where the proper affidavit was filed. And though the plaintiff may have failed-to prove his demand, the defendant, in many cases, would have had no adequate redress. It was to remedy this evil, that the present statute was passed, requiring a bond to indemnify the defendant for any injury sustained from the prosecution of a stale or fictitious claim.
The proceeding by attachment against absent or absconding debtors, is a peculiar privilege granted to creditors, because it is the policy of the law, and the honest right of the creditor, that he should be permitted to collect his debt, wherever he can find the means of satisfaction. It is, however, one of those violations of the common law, that can only be authorized by express enactment, and is watched with great jealousy, that no fraud or injustice may be practiced under it, and that it be not made to embrace a class of cases not intended to be brought within its operation.
In the case before us, the declaration and affidavit were filed at the proper time. A motion was made and sustained by the Court, to dissolve the attachment, and release the property levied on, because no such bond had been filed as was required by law, and judgment was entered against the plaintiffs in error, for all the costs in the suit expended. The bond is a pre-requisite, and the plaintiff must comply with the condition upon which he is allowed his writ, before he can avail himself of the privileges of the act. The effect upon the suit, if there is no such bond as is required by the statute, would be to abate the writ; and that the defendants had a legal right to avail themselves of all matters in abatement, in any manner authorized by law, will not be controverted. The only question is as to the mode of doing it.
We have examined the statute with great care, and find that there are but two instances specified, in which, while the action is pending and undetermined, the attachment can be dissolved a.nd the property restored. 1st, Where the party gives bond for his appearance and compliance with the judgment of the Court. 2d, Where an exception is sustained to the affidavit; and even the defendant must appear and plead to the action, before his exception will be entertained by the Court. In the event of its being sustained, his common appearance will be accepted, the property attached released, and the suit then, proceed as other suits at law, (Rev. Stat. Ark., ch. 13, sec. 13, 29); but this cannot be done on motion.
In the casé before us, th’e exception is not to the affidavit, but to the bond. The record is silent as to the nature of that exception. Is it that the .security is not of that species which is required by the statute ? or is it defective in its condition ? ot were either of the contracting parties infants, insane, or the like? Is it contrary to policy, and therefore regarded as void? Is it void from defective execution? 1s it without consideration, or was it executed or filed too late? Whether it was declared to be imperfect for any one of these, or other causes, we are left wholly, in1 the dark. The record merely shows the fact, indirectly, that the exception, whatever it may have been, was, in the opinion of the Court, sufficient to dissolve the attachment and release the property. If this can be done in the present instance, where shall we draw the line of distinction, and what influence is this summary mode of proceeding by motion, so frequently, and, as we think, so unwarrantably indulged in by the Courts to have upon the rights and interests of individuals? According to what we understand to be the law, any matter which defeats the present proceeding, and does not show that the plaintiff is for ever precluded, should in general be pleaded in abatement, (4 T. R., 227; 3 Chitty's Bla., 302), unless some other mode of proceeding is warranted by express anactment. In the case before us, there is no such enactment; consequently, there is no authority for a departure from the common law rules of pleading; and the Circuit Court erred in entertaining the defendant’s motion, but should have required a regular and formal plea, if there was any disability resting upon the plaintiffs to sue, or a non-compliance with any of the pre-requisites of the statute.
Although perhaps not imperatively called upon to express an opinion upon the effect of a motion of this kind, we have deemed it better to do so, to regulate, if practicable, the practice of the Circuit Courts, and confine them to the long-established and well-settled rules of pleading, particularly where the Legislature has not thought proper to interfere.
There has been no final determination of the suit by the Circuit Court. It is true, the attachment is ordered to be dissolved, the property levied upon restored, and judgment that the defendant should have and recover all the costs in the suit expended. But there is no judgment abating the writ or dismissing the action, but merely a decision upon an incidental question arising during the progress of of the case, leaving the gist of the action yet to be settled and finally determined.
Upon this view of the case, and for want of any final judgment, the writ of error must be dismissed. | [
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Ringo, Chief Justice,
delivered the opinion of the Court:
At a former day of the present term, a motion was made to quash, the writ of error issued in this case, and dismiss the suit, on the following grounds:
First: That the writ is not returnable on the first day of the term, as required by law.
Second: Because the writ is not returned as required by law.
The writ bears date the 7th day of June, 1841, and is made returnable “on the first day of the next term of said Supreme Court of said State, which will be held on the second Monday of July, A. D. 1841, at the Court-house in the city of Little Rock, in said State.” But there is no return whatever made to the writ by the Clerk to whom it is addressed, although it is attached to, and filed with, a duly certified transcript of the record of a suit at law between the parties mentioned in the writ.
A writ of error in this State, as in England, has been holden to be an original writ. But we are not aware of any statutory provision in force in this State, regulating the teste and return thereof; and therefore the writ must, in this respect, be governed by the common law and practice in the Court of King’s Bench, in England, until they are changed by some statutory provision, or rule adopted by this Court. The rule is believed to be well established in England, that a writ of error, returnable to the Court of King’s Bench, must be made returnable on a general return day, and that there must be fifteen days between the teste and'return. 2 Tidd's Pr., 1067, 1069.
In our system of jurisprudence, we know of no law or rule of practice applicable to the Supreme Court, which recognizes any other than the first day of the term as a general return day; and the statutory provisions, requiring the assignment of errors to be made on or before the fourth day of the term to which the writ of error is returnable, and in default thereof, prescribing that the “ writ of error shall be dismissed, or the judgment affirmed, unless good cause for such failure be shown,” (Rev. S. Ark.,p. 644, s. 25,) plainly indicate that it was the design of the Legislature that all writs of error issued out of this Court should be made returnable on the first day of the term. If this conclusion be correct, (and in our opinion there can be but little doubt that it is,) the writ in question, not having been made returnable on the first day of the term, but at a lime wholly unauthorized by law, is insufficient and ought to be quashed.
Having thus determined the first question, it is unnecessary for us to express any opinion as to the second question presented by the motion. | [
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Lacy, J.,
delivered the opinion of the Court:
At the May term, 1839, the record states, that the parties to this suit appeared, by. their attorneys, and, “on motion of the plaintiff, it appearing to the satisfaction of the Court, that the pleadings which had heretofore been filed in the case, had been lost or mislaid, thereupon the plea of non assumpsit was re-instated.” The case was then continued. At the November term, 1839, the record further shows, that the plaintiffs appeared, by attorney, and leave was given the defendant, by consent of the plaintiffs, to withdraw his pleas, and judgment was thereupon entered by default. These entries, unquestiona bly, prove a voluntary appearance on the part of the defendant, first, by filing his plea, and, afterwards, by withdrawing it. He can, therefore, take no advantage, either of a defective writ, or of a defective service. But it is said, that, as there were no steps taken in the cause from May term, 1838, to May term, 1839, the cause was, by operation of law, discontinued and out of Court. This position we deem not at all tenable. Upon the plaintiff’s motion, at the May term, 1839, the defendant’s plea, before put in, which had been either lost or mislaid, was re-instated by the Court, upon the rolls. To this re-instatement the defendant did not object. His failure to do so precludes him from excepting to the opinion of the Court below, upon this point. Leave was afterwards granted him, by consent of the plaintiffs, to withdraw his plea.
The only remaining inquiry now is, was the judgment ,by default properly rendered? This is an action of assumpsit upon a promissory note, assigned by Pendleton Hill to the plaintiffs below. The only objection taken to the declaration is, that it contains no breach that the money was not paid to the assignor before assignment. The breach, we think, contains a sufficient allegation. It alleges, “tfiat, before the payment of said promissory note, it was assigned by Hill to the plaintiffs.” This is, certainly, a good and sufficient averment, and substantially conforms to approved precedents. The party was bound to pay, before the assignment, to no one but Hill; and if the note was assigned before payment, it unquestionably negatives the supposition that the money was paid to the assignor. The judgment of the Circuit Court must, therefore, be affirmed, with cost. | [
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BRANDON J. HARRISON, Judge.
|;A jury found appellant Ross Jacobs guilty of driving while intoxicated (DWI) and refusing to submit to a chemical test. He now appeals his convictions, arguing that the circuit court erred in denying his motion to suppress and not allowing him to attack the credibility of a state trooper who testified for the State. We find no error and affirm.
On 20 August 2011, the Arkansas State Police conducted a sobriety checkpoint on State Highway 35 near Monticello. The first vehicle through the checkpoint was driven by Jacobs. Shortly after passing through the checkpoint, he pulled over and was put through a number of sobriety tests. Jacobs was arrested and charged with DWI and refusing to submit to a chemical test. He was tried and convicted in the Drew County District Court of both charges and ordered to pay $940 in fines, costs, and fees. Jacobs appealed to the Drew County Circuit Court, where he promptly filed a motion to suppress and argued that the initial traffic |?stop was made without reasonable suspicion or probable cause, so the stop violated Arkansas and federal law.
The court held a hearing on the motion to suppress on 23 April 2012, at which Jacobs argued that police were still setting up the roadblock and that it had not been sufficiently established to pass constitutional muster. Bo Norris, a trooper with the Arkansas State Police, testified that at 8:30 p.m., he and two other officers were at the checkpoint. He stated that the checkpoint’s purpose was to look for intoxicated or impaired drivers and to check for driver’s licenses and vehicle registrations, seat-belt and child-restraint violations, and any other violations that were in plain view. Norris explained that, upon arriving at the checkpoint, he notified dispatch that they were starting the checkpoint and that he and the other officers were wearing reflective vests, had their vehicles blue lights on, and had spotlights turned on. According to Norris, Jacobs drove through the checkpoint and stopped approximately two hundred yards down the road. Norris said that when he saw Jacobs run the checkpoint, he got in his vehicle and drove down the road to meet Jacobs.
On cross-examination, Norris said that he did not know why Jacobs had stopped, but he later explained that he had “hollered” at Jacobs and waved his flashlight as Jacobs drove by. Norris also explained that Sergeant Watson was the supervising officer that night but that Watson had not arrived when Jacobs was stopped. Norris stated that, when the checkpoint was conducted, he and the other officers had not received a -written plan for the checkpoint, nor had they held a meeting before starting the checkpoint. But, Norris also said that sergeant Watson advised him to start a checkpoint, he spoke with Watson about where to set it up, |sand Watson designated Norris as the supervising officer until Watson arrived. Norris stated that he and Watson discussed what time the checkpoint would start and “all the details of what was going to happen.”
Jacobs testified that he was headed east on the highway when he suddenly saw blue lights pop up on the right side of the road, that there was another car on the left side of the road moving in his direction, and that he assumed the blue lights were intended for the other car. As he drove past the police vehicle, Jacobs said, the trooper (Norris) “got out, waved his flashlight and told me to pull over.” Jacobs stated that he saw no other indication that a checkpoint was being conducted.
In April 2012, the court denied Jacobs’s motion to suppress. The court’s order found that the roadblock was legal:
The officers were in the process of just beginning to set up the roadblock at the time Mr. Jacobs passed them. At least one of the vehicles used by the officers in question had its blue lights on, if not all of them. When Mr. Jacobs passed through the roadblock he did not stop and Officer Norris flagged him down, which caused him to stop down the road. Norris then followed in his vehicle, and proceeded to conduct his case as he would have at the roadblock, eventually leading to Mr. Jacobs arrest on the charges in this case.
The court concluded that the stop was reasonable under both the Arkansas and United States Constitutions and that Norris’s actions were reasonable under the' circumstances.
In June 2012, Jacobs filed a second motion to suppress and argued that Norris had arrested Jacobs without probable cause to believe that his blood-alcohol content was .08 or more or that Jacobs was intoxicated. The court convened a jury trial on 20 June 2012, and during pretrial discussion, Jacobs conceded that the stop was reasonable. He then asked that |4the court hear the testimony on his second suppression motion during the trial itself, and the court agreed to reserve its ruling on the suppression issue.
Norris again testified and described the sobriety checkpoint. He explained that the checkpoint’s location had wide shoulders, making it a safe location for checkpoints, and that the police had “done numerous checkpoints there in the past and since this date.” He also stated that Sergeant Watson contacted him and told him to start the checkpoint at 8:30 p.m.
Norris also testified about his encounter with Jacobs after he had pulled over. Norris stated that he advised Jacobs that the police were conducting a sobriety checkpoint and asked Jacobs why he did not stop; Jacobs replied that he did not realize it was a checkpoint. Norris said that he could smell a strong odor of intoxicants coming from inside the vehicle and that he saw an empty beer can and a bottle of tequila on the floorboard. Norris explained that Jacobs’s eyes were bloodshot and watery and that his speech was slightly slurred, which are indicators that a person has been drinking alcohol. Jacobs also admitted to Norris that he had been drinking alcohol — “a few beers” — earlier that evening. According to Norris, he then administered a portable breath test and field-sobriety tests. Jacobs failed two out of three field-sobriety tests, and after administering another portable breath test, Norris arrested Jacobs for DWI. Once they arrived at the Drew County Detention Center, Norris read Jacobs his statement of rights, but Jacobs refused to sign the form and refused to take a breath, blood, or urine test.
Corporal Mitch Grant with the Arkansas State Police testified that he had made approximately eight hundred to a thousand DWI arrests over the course of his seventeen-year Rcareer and explained to the jury that, based on the results of the field-sobriety tests and the portable breath tests, he agreed with Norris’s decision to arrest Jacobs. During cross-examination, Jacobs attempted to question Grant about a demotion, and the State objected. Jacobs argued that the demotion was relevant to Grant’s credibility. A bench conference was held, and Jacobs proffered a letter from the Arkansas State Police that purportedly showed that Grant had been “suspended for untruthfulness.” After reviewing the letter, the court found that the subject of the letter did not have anything to do with Mr. Grants truthfulness and sustained the objection.
At the close of the defense’s case, Jacobs again argued that he should be allowed to question Grant about his demotion. The court said no. Jacobs also requested a ruling on the motion to suppress, and the court denied the motion, finding that “[tjhere was sufficient evidence to have a reasonable suspicion or cause based on the results of the field-sobriety tests and the breathalyzer given.” The jury found Ja cobs guilty of DWI and refusing to submit to a chemical test. The court sentenced Jacobs, and he appeals the sentencing order.
Jacobs first argues that the circuit court erred in denying his motion to suppress. When reviewing a circuit court’s denial of a motion to suppress, we make an independent determination based on the totality of the circumstances. Gilbert v. State, 2010 Ark. App. 857, 379 S.W.3d 774. We defer to the circuit court’s credibility and weight-of-the-evidence determinations, and we reverse only if the court’s decision is clearly against the preponderance of the evidence. Id.
[fiA Fourth Amendment seizure occurs when a vehicle is stopped at a roadblock or checkpoint. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997). The question then becomes whether such a seizure is reasonable under the Fourth Amendment. See Mullinax, supra. Where a vehicle stop is made on less than reasonable suspicion of criminal activity, its permissibility is determined by a balancing test. Id. 41, 938 S.W.2d 801 That test, as enunciated by the United States Supreme Court in Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), requires us to consider three factors: (1) a weighing of the gravity of the public concerns served by the seizure; (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty.
A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.
Brown, 443 U.S. at 51, 99 S.Ct. 2637.
Jacobs argues that the checkpoint did not comply with the state police’s own policy and procedures. He asserts that the supervising officer did not conduct a briefing with the participating officers, that there were no warning signs, flares, or safety cones used in combination with the blue lights on the patrol cars; and that “there was nothing to indicate there was a checkpoint in progress when [Jacobs] passed through.” Thus, Jacobs argues, the “scales fail to tip in favor of the State’s legitimate interest to deter drunk driving” and instead “tilt in favor of [Jacobs’s] right against unreasonable searches and seizures.” Jacobs also argues |7that without a legally established roadblock, Norris lacked reasonable suspicion to stop and detain him.
The State argues that the checkpoint passed constitutional muster. Although Jacobs mentions a lack of warning signs, flares, or safety cones, the law-enforcement policy manual states only that these devices “may” be used with marked patrol vehicles, not that they must be used. Further, the State argues, even if the checkpoint did not turn square corners, suppression is not required because our supreme court has determined that the constitutionality of a checkpoint does not depend on a specific, written plan or program. See Mullinax, supra.
The circuit court did not err when it denied the motion to suppress. Jacobs does not challenge the State’s interest in preventing accidents caused by drunk driv ers, the degree to which the sobriety checkpoint advanced that interest, or the level of intrusion on his privacy rights that the checkpoint may have caused. Jacobs argues that the law-enforcement policy manual was not strictly followed and that, essentially, he lacked notice that a checkpoint had been established. Out Jacobs has cited no authority for the proposition that the failure to strictly follow the policy manual renders a roadblock unconstitutional. And based on the testimony regarding Norris’s discussion of the checkpoint’s procedures and location with his supervising officer, we hold that a “plan embodying explicit, neutral limitations” was followed in this case and, therefore, the court did not err.
For his second point, Jacobs says that the circuit court should have let him attack Grant’s credibility by questioning him about a prior disciplinary action that resulted in Grant’s | ^demotion. Rule 608 of the Arkansas Rules of Evidence is the pertinent rule, and it provides
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the ■witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
Ark. R. Evid. 608(b) (2012). The Arkansas Supreme Court has interpreted Rule 608 to permit inquiries on cross-examination into conduct that are clearly probative of truthfulness or untruthfulness but to disallow cross-examination into specific instances that are merely probative of dishonesty. See, e.g., Bailey v. State, 334 Ark. 43, 56, 972 S.W.2d 239, 246 (1998). Specifically, our supreme court has adopted a three-part test for admissibility: the question must be asked in good faith, the probative value must outweigh its prejudicial effect, and the prior conduct must relate to the witness’s truthfulness. Id. This test must be considered along with our settled law that evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the circuit court. We will not reverse absent an abuse of discretion that prejudices a defendant. Id.
Here, Jacobs asserts that Grant had been disciplined for misconduct, specifically a violation of the “Arkansas State Police policy on truthfulness,” and that under Ark. R. Evid. 608(b), Jacobs should have been allowed to cross-examine Grant on this issue. Jacobs claims that he met the required test because, based on the proffered letter, Grants demotion was raised in good faith, the probative value of the question far outweighed any prejudicial effect it might have had, and the demotion clearly related to Grant’s truthfulness. The State argues |9that the letter was broadly worded and did not explain fulsomely enough the facts behind the demotion.
There was no abuse of discretion. Jacobs’s proffered exhibit is a letter to Grant from Colonel Winford Phillips of the Arkansas State Police. The letter concerns a final administrative decision on allegations that Grant violated the “following Arkansas State Police Policies: Officers to be courteous; Failure to perform duties properly; Unbecoming conduct; and, Truthfulness.” In the letter, Phillips advised Grant that the charges had been substantiated and that certain disciplinary actions were imposed, including the requirement that Grant attend anger-management classes. The letter does not explain the specific allegations against Grant or how these allegations relate to his truthfulness. We agree with the circuit court that the letter was not clearly probative of truthfulness or untruthfulness. It did not abuse its discretion in disallowing cross-examination that was, at best, only probative of dishonesty.
Affirmed.
VAUGHT and WOOD, JJ., agree. | [
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Wood, J.,
(after stating the facts.) There is nothing upon the face of the note to show the status or relation of the signers to each other. Appellants are not indorsers. They do not sign as sureties, but appear upon the face of the paper as makers. The proof, however, shows that appellants are makers for the accommodation of Hiner. The note was in Hiner’s hands, to be negotiated for his benefit, which appellee knew. This was sufficient notice to it of the character of the instrument. 1 Am. & Eng. Enc. Law, 367.
. Can, appellee, the holder of accommodation paper, having knowledge of its character when it was received, recover of appellants, the makers of such paper? One who signs negotiable paper for accommodation confers authority on the party accommodated to bind him, the accommodation party, in favor of third persons by the issue of the paper. And when such paper has been negotiated, the maker is bound to the payee, indorser, or holder from the date of the instrument, according to the rules of the law merchant. 1 Am. & Eng. Enc. Law (2d Ed.), pp. 340, 350.
The note in suit was a negotiable promissory note, signed by appellants, and turned over to Hiner “for the purpose of getting money on it.” They gave it to him to get the sum of $300 from the bank, but, in the language of one of the appellants, “it was immaterial where he [Hiner] got the money from; they had no objection to where he got the money, and made no restriction; did not tell him from whom he should get it; nothing was said about it.” The note was indorsed by the payee in blank. This transferred the legal title. The note thereafter passed by mere delivery to the one who paid value, the same as if payable to bearer, and the holder thereof had full authority to demand payment of it. Story, Prom. Notes, p. 184. It was immaterial whether the indorsement was procured by Hiner or by the appellee, and that appellee knew the bank had no interest in the note, and only made the indorsement to show title on the face of it. This was done to enable Hiner to do just what the makers designed he should do,— “raise money on it.” The bank declined to take it, and signified the fact that it had no interest in it, and was willing for any one else to take it, by indorsing it in blank without re course, and delivering it back to the maker in this shape, to be negotiated to whomsoever he pleased. We cannot say that the indorsement was out of the usual course, i.e., “contrary to the usages and customs of commercial transactions.” Tied. Com. Paper, § 294; Kellogg v. Curtis, 69 Me. 212; Daniel, Neg. Inst., § 778.
Was appellee a Iona fide holder for value? The general manager of appellee, who made the negotiation for the note, was informed by Hiner, who had the note, “that the note was •made to get money to pay his indebtedness to appellee- and other money he owed.” There was no infirmity upon the face of the note itself. It had not reached matui’ity. There was nothing in the circumstances of its holding or transfer to excite suspicion, or to give notice of anything except the character of the instrument. Appellee took it to enable Hiner to do what he informed appellee the makers designed that he should do. Appellee paid Hiner in cash the sum of $212 or $213, and applied the balance of the note on Hiner’s debt to it. This court in Tabor v. Merchants National Bank, 48 Ark. 454, said that “one who takes negotiable paper in payment of an antecedent debt, before maturity and without notice, actual or otherwise, of any defect thereto, receives it in due course of business, and becomes, within the meaning of commercial law, a holder for value.” The bona fide holder for value of accommodation paper taken in the regular course of business may enforce it against the makers, although he knew when he received it that it was accommodation paper. 1 Am. & Eng. Enc. Law (2 Ed.), 360, note 6,
We are of the opinion therefore that appellee is a bona fide holder for value of the note in suit, and as such entitled to recover the full amount sued for.
The foregoing, however, is based upon the assumption that the note was not fraudulently put in circulation, or diverted from the purpose designed by its makers. The appellants contend that, as payee bank declined to discount the note, its transfer thereafter was a diversion, and that therefore the note has no validity in the hands of appellee. The learned counsel for appellants has pressed this view with his characteristic vigor of argument and diligence in the citation of authorities. The eases which he cites from Ohio and Massachusetts support the proposition for which he contends (Clinton Bank v. Ayres, 16 Ohio, 283; Adams Bank v. Jones, 16 Pick. 574), and there are others to same effect;" so that it may be said that the authorities are not in accord upon the proposition.
But the weight of authority and the better reason maintain the doctrine we here announce, that an accommodation note put into the hands of the party accommodated solely for the purpose of enabling him “to raise money,” although made negotiable and payable at and to a particular bank, which is named as the payee, is nevertheless good against the makers in the hands of a third party who in good faith received the same be-for due and for value, paying for same the money which the note calls for. Winters v. Ins. Co., 30 Ia. 172; Laub v. Rudd, 37 Ia. 618; Bank of Burlington v. Beach, 1 Aik. (Vt.) 62; Keith v. Goodwin, 31 Vt. 268; Bank of Montpelier v. Joyner, 33 Vt. 481; Bank v. Bingham, 33 Vt. 621; Bank v. Richards, 35 Vt. 281; Farm. & Mech. Bank v. Humphrey, 36 Vt. 554; Bank v. Hyde, 4 Cowen, 567; Powell v. Waters, 17 Johns. 176; Smith v. Moberly, 10 B. Mon. 271; Meeker v. Shanks, 112 Ind. 207; Dunn v. Weston, 71 Me. 270; Bank v. Rand, 38 N. H. 166; Utica Bank v. Ganson, 10 Wend. 315; Moreland v. Bank, 30 S. W. (Ky.) 384; First Nat. Bank v. Wood (Tex.), 28 S. W. 384; Gilbert v. Duncan, 29 N. J. L. 133; Purchase v. Mattison, 6 Duer, 587; Reed v. Trentman, 53 Ind. 433; Morris v. Morton, 14 Neb. 358; Lord v. Bank, 20 Penn. St. 386; Perkins v. Ament, 2 Head (Tenn.), 110. See, also, following text writers: 1 Dan. Neg. Ins. § 792. 2 Pars. Notes & Bills, p. 28; 1 Am. & Eng. Enc. Law (2 Ed.), 381; Bigelow, Bills & Notes, p. .457.
The testimony of appellants themselves makes it clear that they did not make the discount of the note by the bank a condition precedent to the validity of the note. Simply naming the bank as payee did not have that effect. The reasoning of the Ohio court in Clinton Bank v. Ayres, supra, which holds the contrary doctrine, is as follows: “The makers [sureties] might be willing to loan their credit and become indebted to some particular creditor, but not to another. They might be willing to lend their name to procure a loan from a party who would advance to their principal the full face of the note, when they would be entirely unwilling to go security to one who was their personal enemy, or who would exact harsh terms or heavy interest of their principal. They" might have been willing to aid him in procuring a loan of ready cash, when they would have been unwilling to become his surety for an old debt,” etc. This reasoning is not satisfactory to us, for when one makes his paper negotiable he contracts with reference to the law applicable to such paper. Even had the bank in the case at bar discounted the note, the next instant, by an indorsement such as we have here, it might have passed it into the hands of the very persons with whom, according to the reasoning of the Ohio case, the makers were unwilling to contract.
In Keith v. Goodwin, 31 Vt. 274, it is said: “When a note is executed for the purpose of raising money in the market, although made payable to a particular firm or bank, it is well understood that this is generally regarded by business men as rather a formal than a substantial part of the note. If the note were made payable at a particular bank to the order of the makers, it would be much the same thing. So, too, if made payable to bearer generally. The name of the person to whom the note is payable is mere form. It is understood that it is going into the market as money, and in exchange for money to any party who will make the discount. If negotiated at the bank, it may pass into other hands the next hour.” This is the sound doctrine, where the law merchant is untrammelled in its operations by statutory enactment.
But it may be said that the note was used in part to pay a pre-existing debt of $88 or $89, and that this constituted a material diversion. If this were true, it could only defeat appellee’s right of recovery pro tanto. But the payment of the antecedent debt by Hiner, under the circumstances, was not a diversion. The gravamen of appellants’ ease, as they show by their proof, is not that the Speer Hardware Company purchased the note, for they were willing for any one to purchase who would pay the money for it, but that Hiner failed to pay over the proceeds according to promise. Had Hiner paid over the $212 or $213, all the debts which he agreed to pay as the condition upon which appellants signed would have been fully paid. He agreed to pay, for one of the appellants, a sum amounting to $190, and for the other, a sum amounting to $50; besides, for both, interest on certain notes, amount not stated. He paid the amount of $120. So that the .balance on the debts which Hiner agreed to pay as a condition upon which the appellants signed the notes does not equal the amount which Hiner received from the appellee after paying to it his debt. Appellants are not prejudiced, therefore, by reason of appellee’s not paying to Hiner the sum of $88 or $89, but by reason of Hiner’s failure to apply the $211 or $212 to the debts which he promised appellants to pay.
Moreover, appellee had no notice of any limitations upon the irse of the note. In fact, there were none, except that it was to “raise money.” If appóllee had paid to Hiner the sum of $300 in cash, and Hiner had immediately paid back to appellee the sum of $88 or $89, the amount of his debt, no one could contend that this would defeat appellee’s right to recover. What actually took place was tantamount to this. Hiner informed appellees that the real purpose of the note was to raise money to pay off his debt to appellee and other debts; so appellee deducted the amount of its debt, and paid Hiner the balance. Appellee was in no sense responsible for the misappropriation of the proceeds of the note by Hiner. Appellants trusted Hiner with the note to raise the money. They must be held to have trusted him to make proper application of it. Tabor v. Merch. Nat. Bank, 48 Ark. 454: Brooks v. Hey, 23 Hun, 372; Gray v. Bank of Kentucky, 29 Pa. St. 365; Moreland v. Bank, 30 S. W. (Ky.) 637; Dunn v. Weston, 71 Me. 270. Especially is this the case as against one who had no notice that the accommodation makers were interested in the application of the proceeds. As was said in one of the above cases, to hold otherwise “would be against the plainest principles of equity, as well as subversive of the commercial law.” See, also, Stoddard v. Kimball, 6 Cush. 469; Goodman v. Simonds, 20 Howard, 343, and note the same case, in Bigelow’s Bills and Notes.
In this view of the case, the other interesting questions pass out, and the judgment must be affirmed. It is so ordered. | [
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Battle, J.
On the 17th of February, 1894, the Sun Mutual Insurance Company of New Orleans issued to C. R. Dudley a policy insuring him against “all direct loss or damage by fire, to an amount not exceeding $700, on his stock of merchandise in the town of Hope,” in this state, for a period of one year from the 18th of February, 1894. On the 7th of November, 1894, C. R. Dudley, with the consent of the insurance company properly given,, transferred the policy and all the property protected thereby to Dudley Bros., a firm composed of C. R. Dudley and R. E. Dudley. On the 13th of January, 1895, the stock of merchandise was destroyed by fire, and after-wards, on the 30th of January, 1895, Dudley Bros, transferred the policy to Yal. Duttenhoffer & Sons, Jarvis, Phillips & Co., and Gauss-Shelton Hat Co. On the 17th of May, 1895, Dudley Bros, and their assigns commenced an action against the insurance company and the sureties on its bond, filed with the auditor of this state, in the Hempstead circuit court, upon the policy, to recover damages occasioned by the fire.
The policy sued on contains this covenant: “The assured under this policy hereby covenants and warrants to keep a set of books showing a complete record of business transacted, including all purchases and sales (cash sales need not be itemized except by daily totals), together with the last inventory of said business; and further covenants and agrees to keep such books and inventory securely locked in a fire proof safe at night, and at all times when the store mentioned in the policy is not actually open for business, or in some secure place not exposed to a fire which would destroy the house where said business is carried on; and in ease of loss, whether the store be open for business or not, the assured warrants and covenants to produce such books and inventory, and, in the event of a failure to produce the same, this policy shall be null and void, and no suit or action at law shall be maintained thereon for any such loss.”
The policy further provides that the insured, as often as required, shall produce for examination all books of account, bills, invoices, or other vouchers, or certified copies thereof, if the originals be lost, at such reasonable place as may be designated by such defendant company or its representative, and shall permit extracts thereof and copies to be made.”
The defendants, denying any liability under said policy, alleged, among other things, as a defense, that “the said plaintiffs, Dudley Bros., did not keep a set of books showing a complete record of business transacted, including all purchases and sales, together with their last inventory of said business; that said plaintiffs, Dudley Bros.-, have failed and refused to produce to said defendants such books as are contemplated by such provision in said policy, or books of any kind whatever; that said provision in said policy is a warranty, and, the same having been broken, the policy is void; and that plaintiffs, Dudley Bros., though called upon to do so, have failed to produce for examination either the said books of account, the original bills and invoices of goods alleged to have been bought since the issuance of said policy, or certified copies thereof, and that, by reason of said failure on the part of said plaintiffs, said policy is null and void.”
The issues in the action were tried by a jury.
In behalf of the plaintiffs, C. ft. Dudley testified that the goods destroyed were of the value of $5,345.66, and that the insurance on them amounted to $4,000, including the policy sued on. He further testified “that the only book kept relating to the business prior to August or September, 1894, was what he called a ‘cash book,’ but it contained nothing except a record of the totals of daily cash sales. In August or September, 1894,^6 began to keep'a bill register, in which was entered the date and amount of invoices of goods purchased, the maturity of the bills, from whom purchased, and when paid,” but nothing more. “He (and his firm) kept this register and the original invoices in lieu of merchandise account, the bills representing the debit side and the cash, the credit side.” His firm, Dudley Bros., “took an inventory of the stock December 24, 1894,” and thereafter purchased and received no goods, and kept no books except the cash book, and “the invoices and bill register were not kept in the safe, but were laid aside as of no use, and were on a desk in the store the night of the fire, and were destroyed. The only book produced when called for by the adjusters was merely the memorandums of totals of daily cash sales, and this was the only book kept in the safe after the inventory was taken.”
He also testified as follows: “After the fire I talked with Mr. Balfour Klein, representing the defendant, and one Mr. Meyers, representing the other insurance companies, whose policies we held on this stock. I told them that all the books I had was the cash book and the inventory. They did not claim the forfeiture of the policy at the time, but before they looked at the books they asked me to sign the non-waiver agreement. This was immediately after they reached here, and before they had begun to examine into the question of loss, and I signed the non-waiver agreement. After I made and signed the non-waiver agreement, I gave them my book and inventory; also my policy. I produced the cash book and inventory, and told them that they were all I had. They asked me a few questions, and told me they would take the matter under consideration, and the next day they told me from what they could see they would be willing to pay us fifteen hundred dollars ($1,500), and that they would take the responsibility upon themselves. This I refused to accept. They told me to get up proofs of loss, and send them in, and the policies might be paid. They did not say that the policy had been forfeited. I then employed a justice of the peace by the name of Wallace, and he got up the proofs of loss. By the conduct of these adjusters I was led to believe that they would pay me, if I would prepare and send in proofs of loss. They told me that, before they proceeded to business, I must sign the paper. After I signed the paper or non-waiver contract, they asked me to produce the books, and said that if my loss was just they would pay the policies.”
The defendants introduced Balfour Klein, who testified as follows: “Before investigating the amount of the loss, we asked C. R. Dudley to sign the non-waiver contract, and if he had not done so we would have gone home without having investigated his loss at all. We then took the cash book and inventory, which have been introduced in evidence, and that was all he produced to us, and we told Mr. Dudley that they were not sufficient. We told him that we would make him a compromise offer of fifteen hundi’ed dollars ($1,500) in order to avoid a law suit; and at the same time told him we did not admit any liability, but that this was done simply as a matter of compromise. He did not accept it, and we withdrew the offer. This terminated the interview with Dudley Bros., or either of them, and nothing else has taken place between us except correspondence. I have with me the non-waiver contract signed by Dudley Bros., which I here produce.”. Thereupon the defendants asked leave to read said non-waiver contract to the jury, but the court refused to allow said defendant to read said contract to the jury, and excluded the same, to which ruling and order of the court the defendants at the time excepted. Said agreement is as follows: “It is hereby mutually stipulated and agreed by and between Dudley Bros., party of the first part, and the insurance company or companies whose name or names are signed hereto, each acting for itself, party of the second part, that any action taken, request made, or information received, by said party of the second part in or while investigating and ascertaining the cause of fire, the amount of loss or damage, or other matters relative to the claim of said party of the first part for property alleged to have been lost or damaged by fire on the 13th day of January, 1895, shall not in any respect or particular change, determine, waive, invalidate or forfeit any of the terms, conditions or requirements of the policies of insurance of the party of the second part held by the party of the first part, or any of the rights whatever of any party hereto. The intent of this agreement is to save and preserve all the rights of all the parties hereto, and permit an investigation of the claim and the determination of the amount of the loss or damage, in order that the party of the first part may not be unnecessarily delayed in their business, and that the amount of their claim may be ascertained and determined without regard to the liability of the party of the second part, and without prejudice to any rights or defense which said party of the second part may have. C. R. Dudley, of and for Dudley Brothers. G. L. Meyers, Adjuster Southern Insurance Co., Germania Insurance Co. W. B. Klein, Adjuster. Sun Mutual Insurance Co. Palatine Insurance Co.”
Klein further testified: “I never requested or told Dudley Brothers, or either of them, to make out proofs of loss. I never made such request of any person insured in my life. This non-waiver agreement was to prevent anybody’s rights from being waived by reason of investigating the books and question of loss.”
Thereupon the defendant introduced J. T. Hicks, and others, “who testified, in substance, that they were experienced book-keepers, and knew the custom of keeping books at Hope, Arkansas, where the business was run on a cash basis, and that they knew of no one keeping such books as were read in evidence in this cause. That the books kept by the plaintiffs, Dudley Bros., did not show a complete record of business transacted, including purchases and sales, or anything else except the aggregate of the daily cash sales of Dudley Bros. There could be no complete record of a mercantile business without a merchandise account. That there was no way to ascertain the condition of the business of Dudley Bros, from the record kept by them. That there was nothing to indicate what was done with the cash taken in; no record of money paid to creditors; neither was there any record of purchases. They kept no expense or freight account. That no complete record could be made from these books. That the expense of a business would have to be known to arrive at the profits, and that the profits would have to be known in order to estimate the value of the stock remaining on hand.”
The plaintiffs were allowed to ask the following question of witness J. T. Hicks:
“Q. If Dudley Bros, made an inventory of their stock on December 26, 1894, and received no goods thereafter, and kept an account of all cash sales from that time until the fire, could it not be ascertained what was the value of their stock?”
The defendants objected to this question, but the court overruled the defendant’s objection, to which the defendants at the time excepted, and said witness answered as follows:
A. “If the inventory had been correctly taken, and the cash book correctly kept from that time, the difference between the two, making allowance for the gross profits and expenses, would approximate the value of the stock at the time of the fire. I kept a merchandise account, and each month credited the same with the amount of the cash sales. I kept a cash book and a ledger. The only way I could keep up with my business was to keep a merchandise account or bill ledger as well as cash sales. I kept all my invoices, bill ledger and cash sales, as well as my last inventory, in my safe.” The defendants objected to this answer, and saved exceptions.
Other evidence was adduced, but it is not necessary to set it out in this opinion.
Many instructions were given by the court to the jury over the objections of the defendants, and many were asked for and refused. So many as are necessary to present the questions which these instructions give rise to are as follows:
“7. You are instructed that the provision 'in the policy requiring Dudley Bros, to keep a set of books showing a complete record of their business transactions, and to keep said books in a fire-proof safe, as provided in said policy, was not complied with by keeping the last inventory of December 26, 1894,.and the record of cash sales from the date of said inventory .until the fire occurred.”
“9. You are instructed that it was not necessary for the defendant or its agent to say or do anything in order to claim the benefit or advantage of a forfeiture of the policy sued on, if such forfeiture has been shown, and it was not necessary for the defendant to deny liability on said policy, or claim such forfeiture until the answer herein was filed.”
These instructions were asked for by the defendants, and refused by the court.
The court required the jury to answer the following questions :
“1. Did the plaintiffs, Dudley Bros., keep such a set of books, and produce the same, as required under the ‘iron-safe clause’ contained in the policy introduced in this case?
“2. If you answer that such a set of books was not kept, as required under the ‘iron-safe clause,’ state whether or not you find that the agent of the defendant waived such failure within the meaning of the instructions of the court on the subject of waiver.”
The jury retired, and, after remaining out about two hours, returned into court, and announced that they could not agree as to the answers which should be given to the interrogatories, and the court withdrew the interrogatories, over the objections of the defendants, and shortly afterwards the jury returned into court with a verdict in favor of the plaintiffs for $516.25. The defendants appealed.
The first question presented for our consideration by this statement of facts is, did the court err in excluding the agreement in writing entered into by Dudley Bros, and the insurance companies'? An insurance company has the right to judge and act for itself as to the conditions upon which it will insure against losses by fire and other causes. The owner of property is not bound to accept insurance upon any particular conditions, but, if he does, he cannot defend against a breach thereof upon the ground they are immaterial. Having entered into the contract of insurance as evidenced by its policy, the insurance company has the right to rely and insist upon all its terms and conditions, and take advantage of all forfeitures incurred by the breach of any of its conditions. To protect itself in the exercise of this right, it may enter into an agreement with the assured to the effect “that any action taken, request made, or information received,” by it, “in or while investigating and ascertaining the cause of the fire, the amount of loss or damage, or other matters relative to the claim” of the assured “for property alleged to have been lost or damaged by fire,” “shall not in any respect or particular change, determine, waive, invalidate or forfeit any of the terms, conditions or requirements of the policy,” “or any of the rights whatever of any party thereto.” In this case the insurance company undertook to protect itself against a claim of waiver and estoppel by such an agreement, and offered it as evidence; and the court excluded it, and erred in so doing. It was competent, relevant, material and admissible for the purpose of aiding the jury in determining whether there had been a waiver of the forfeitures claimed by the defendants, and should have been admitted for that purpose. Phoenix Ins. Co. v. Minner, 64 Ark. 590.
The court also erred in allowing the plaintiffs to prove that the value of the stock of merchandise destroyed by the fire could be ascertained from the inventory of their stock made by Dudley Bros, on the 26th of December, 1894, and the account of cash sales kept by them from that time until the fire, provided the inventory and cash book were correct. The assured covenanted that they would keep a set of books showing a complete record of business transacted, including all purchases and sales, together with the last inventory of said business; and it is stipulated in the policy that it shall be void in the event the assured fails to produce such books and inventory in case of loss, and no action can be maintained thereon for such loss. This condition is both useful and valid. Its object is apparent. It was to enable the insurance company to ascertain the extent of any loss occasioned by fire during the life of the policy, and to test the accuracy of the statement or inventory furnished by the assured for that purpose. By such a set of books the amount and value of the goods acquired while the policy was in force could be ascertained; and, in the event any doubt as to the correctness of the books in this respect should arise, the insurance company might be enabled to ascertain from the persons shown by the books to have sold the goods the sales actually made; and the amount disposed of and on hand would be made to appear. They were necessary to protect the insurer against the errors and dishonesty of the assured. Without them it would be left without adequate means to protect itself against false statements and inventories furnished by the assured in case of loss. Any set of books which failed to furnish the information required to be contained in the books which the assured^covenanted to keep would not meet the requirements of the contract of insurance, and prevent a forfeiture of the policy, because the policy provides that it shall be void in the event such books are not kept. For that reason, if no other, the evidence that the value of the stock destroyed could be ascertained from the inventory^of the 26th of December, 1894, and the account of cash sales kept by Dudley Bros, from that time until the fire was incompetent; and it was prejudicial to the defendants, because it was calculated to lead the jury to believe there was no forfeiture of the policy on account of a failure to keep such books.
The court erred in refusing to give the instruction numbered 7, which was asked for by the defendants, for the reasons already given.
As to the instruction numbered 9, which was refused, it is sufficient to say that it is not necessary for an. insurer to say or do anything in order to claim and be entitled to the benefit or advantage of a forfeiture of its policy until sued thereon, provided the assured, under the circumstances, could not reasonably infer therefrom that the insurer did not intend to insist or rely upon it. Mere silence, without additional or accompanying circumstances, would not be sufficient to warrant such inference. Without this qualification, the instruction should not have been given.
The court should not have withdrawn the interrogatories from the jury after they announced that they could not agree as to the answers that should be made to the same. It is obvious that they were not authorized to return a verdict in favor of the plaintiffs, in 'the absence of interrogatories, until they had agreed that there was no forfeiture on account of the failure to keep books, or, if there was, it was waived by the in surance company. These were the facts, and the only facts, they were required to find in order to answer the interrogatories. We do not, however, decide that the court did or did not commit a reversible error in withdrawing the same.
For the errors in excluding and admitting evidence and in the refusal to instruct the jury, which we have indicated, the judgment of the circuit court is reversed, and the cause is remanded for a new trial. | [
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Hughes, J.,
(after stating the facts.) The indictment in this case charges only petit larceny, which is only a misdemeanor, the value of the money stolen being stated at less than ten dollars. Sand. So H. Dig., § 1699. It was therefore unnecessary to charge that the taking, etc., was feloniously done.
It is true that the definition of larceny, according to our statute, is as follows: “Larceny is the felonious stealing, taking and carrying, riding or driving away, the personal property of another.” Sand. So H. Dig., § 1694. Since the p-.ssage of this statute, a distinction has been made between grand and petit larceny. See act March 22, 1881 (p. 144). The word “steal” has a uniform signification, and in common as well as legal parlance means “the felonious taking ‘and carrying away of the personal goods of another.” State v. Chambers, 2 Green (Iowa), 311.
“Theft” is a popular name for larceny. People v. Donahue, 84 N. Y. 442. See Skipwith v. State, 8 Texas App. 138,
The indictment charges that the defendant “unlawfully did steal,” etc. This is sufficient. The general description of the money charged to have been stolen is sufficient, under § 1717,-Sand. & H. Dig. (Act of 1893.)
Reversed, with directions to overrule the demurrer. | [
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Bunn, C. J.
This is a suit, tried in the Union circuit court, to recover the value of services rendered by the appellee as physician and surgeon in attending upon a brakeman of appellant company, who had fallen from the cars near Cargile in Union county, and had one leg crushed, and was otherwise hurt and bruised.
Defendant’s train, proceeding northward, had approached near Cargile, one of its stations, when Bascom Williams, a brakeman employed in running the train, was thrown from the cars, and was wounded as stated. The appellee, a regular practicing physician, residing in El Dorado, a few miles north of Cargile, happened to be a passenger on the train at the time. When the accident occurred, the train stopped, and the conductor, Walsh, hurried to the scene of the accident to ascertain what was the matter, having heard that a man was hurt, and, in passing through the passenger coach, requested appellee (as appellee states) to go with him, and look after the wounded man, not knowing, as we infer, at the time, who had been hurt, nor the'nature of his hurt; and the appellee did so. The conductor denies having made the request of appellee to go and look after the wounded man, but says he went on his own accord. The other evidence is somewhat conflicting as to this, and it was a question for the jury, and they determined it in favor of plaintiff. ' ,
Appellee found the said Bascom Williams, with one leg crushed, and otherwise wounded and bruised, and bleeding profusely. He soon got the hemorrhage under control, and sent for Dr. Kelly, the company’s regularly employed physician. It became necessary for appellee to go at once to his office in Eldorado to procure the necessary instruments and appliances and professional assistance, and return to amputate the broken limb. Cargile, who seems to have been nothing more than a stockholder in the railroad company, perhaps a director at most, being informed of appellee’s desire and intention to proceed to El Dorado for the purposes stated, immediately sent him forward on the engine, and at El Dorado the appellee engaged the services of Dr. W. J. Pinson, another regular practicing physician of that place, and they returned to the scene of the accident, and immediately amputated the broken limb; but, finding the bruises extending higher than at first appeared, for want of sound skin to make the necessary flap, a second amputation was made. The patient died the following day.
Some doubt seems to have been entertained as ..to whether the company was liable for the services thus rendered, and considerable negotiation seems to have been had on the ¿subject. C. C. Henderson, the general manager of the company, at one time promising to assist in paying the bill, to the extent of fifty dollars, not as a liability however, but as a voluntary contribution, as we infer.
The main question, as may be readily seen, is whether or pot the railroad company is responsible in any case for the contracts of an employee not- made in the line of his employment, and he having no express authority to make them; and, if so, under what state of circumstances this liability attaches to it. This is a mooted question, but the weight of authority seems to sustain the doctrine that in case of an emergency the employment (of a physician for instance) by the highest railroad official present is the act of the company, and it will be liable for the value of the services rendered to one in the employ of the company injured by the running of its trains.
In St. Louis, A. & T. R. Co. v. Hoover, 53 Ark. 377, Hoover, a physician, at the instance of the conductor of defendant company’s train, rendered medical services to a passenger injured by the running of the train, and sued the company for the value of his services. This court said in that case: “Neither a conductor, station agent, nor solicitor of a railway company is authorized, in ordinary cases, to contract for surgical attendance upon a passenger or employee injured in operating the train of the railway company, so as to bind the company [citing a list of authorities.] It has been held that where such injury is done at a point distant from the chief offices of the company, and there is urgent necessity for the employment of a surgeon to render professional services to an injured employee, the conductor, if he is the highest agent of the company on the ground, has authority to bind the corporation by the employment of a surgeon to render the services required by the emergency. [Citing authorities.] The authority existing in such cases is exceptional; it grows out of the present emergency and the absence — and consequent inability to act — of the l'ailway’s managing agent; its existence cannot extend beyond the causes from which it sprang.”
The reason given for the exceptional rule is the absence and consequent inability to act of that one of the railway’s agents .capable of and authorized to make contracts for the company. That is a secondary reason, but it may not be the basic reason, for ordinarily even one authorized to make contracts generally is not authorized to make contracts to assume for the company liabilities properly resting upon another. But the rule is not, on that account, to be disregarded. It has other reasons to support it. A very able opinion on the subject is to be found in Terre Haute, etc. R. Co. v. McMurray, 90 Ind. 358, where the facts are very much like those in the case at bar; the court holding the company liable under the peculiar circumstances. Marquette, etc., Ry. Co. v. Taft, 28 Mich. 289, was a case where a laborer engaged in the company’s service was injured by the train. The trial court had rendered judgment for the defendant, and on appeal the judgment was affirmed, but under the rule thát a judgment will be affirmed unless a majority of the judges are for reversal. In that case, Graves and Campbell, JJ., were for affirmance, on the grounds that “no officer of the company could bind it to pay for surgical services rendered an employee. Chief Justice Christiancy and Justice Cooley were for reversal, for the reason stated by Judge Cooley thus: “We think it their [the company’s] duty to have some officer or agent at all times competent to exercise a discretionary authority in such cases, and that, on grounds of public policy, they should not be suffered to do otherwise.” The court was thus equally divided. The two cases are very instructive, and they and the cases cited therein give a very full understanding of the scope of the controversy and the reasoning on each side. In the course of his argument in the latter case, Judge Cooley said: “We shall not stop to prove that there is. a strong moral obligation resting upon any one engaged in a dangerous business to do what may be immediately necessary to save life or prevent an injury becoming irreparable, when an accident happens to a person in its employ. We shall assume this to be too obvious to require argument.”
It may be that it is the legal as well as the moral duty of the company, under such circumstances, to do all it can to prevent an injury to one of its servants from having its worst consequences, just as it is its duty.to do all it can to prevent the injury in the first instance, when' informed that the danger is impending. Whatever may be the reason, it is a case in which some one should act, and without delay, and the equities are in the idea that the employer is under a greater obligation to do so than any one else not otherwise bound. The liability should not be extended beyond the exigencies of the occasion, and the extraordinary rule should be most strictly construed, and applied with the greater caution, and all the conditions upon which it is based should appear in every case when it is applied.
The objection to T. J. Babb, as a juryman, on account of his relationship to Dr. Pinson, under the statute (Sand. & ET. Dig., § 4256) is also untenable, since Pinson, although in some way interested, as we might say, in the result of the suit, is yet no party to it, and, besides, his interest is too uncertain to say that a verdict should be set áside for that reason. Furthermore, his relationship might have been brought out on his voir dire, as Pinson’s connection with the matter was as well known at first as at last..
The newly discovered evidence concerning the declarations and admissions of the plaintiff would be merely cumulative of the other evidence going to show plaintiff’s doubts as to the liability of appellant for his fee.
We think that the emergency under which the conductor acted in requesting the appellee to go and see the injured man (meaning to attend him) was such as to make his act binding upon the company, under the rule; that the charge was reasonable; and that the other objections, if tenable, do not constitute reversible errors. The judgment is therefore affirmed. | [
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