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ROBERT J. GLADWIN, Chief Judge
li-Jalibra Ingram was convicted in the Pulaski County Circuit Court on February 18, 2014, of filing a false report with a law-enforcement agency, a violation of Arkansas Code Annotated section 5-54-122 (Supp. 2013). She was sentenced to three years’ probation and was ordered to pay $1470 in court costs and restitution to the City of Little Rock in the amount of $4048.06. On appeal, she argues that substantial evidence did not support that she gave a false statement or that the Little Rock Police Department expended more than $500 investigating her alleged false report. We affirm.
Appellant was charged by amended felony information with filing a false report with a law-enforcement agency. On January 3, 2012, appellant called 911 and asked for an officer to come to her address. She stated that Ron Mitchell took her keys, that he had been violent toward her, and that he had a pistol and kept “pulling it out” on her and threatening her with | git. When asked if she had been hit, she re sponded affirmatively, and stated that she just wanted to leave. Later, appellant called 911 again and stated that she wanted to cancel the call because Mitchell had given her keys back. She then stated, “Y’all might need to get here quick cause I’m ’bout to kill somebody.”
Little Rock Police Officer John Mack testified at appellant’s trial that he was called to appellant’s house pursuant to the 911 call. He was informed that appellant had reported that she was being held against her will by a man with a gun. He testified that the information he received was that the man had pointed the gun at appellant several times. While he was en route, he was notified that appellant had called back and said that her call could be disregarded. Due to the nature of the call, Officer Mack went to the address. When he arrived, no one answered the door. He heard something moving around inside the house, like furniture being moved, so he had the police communications call appellant back and ask that someone come to the front door where he could see their hands. He said that a black female, later identified as appellant, came to the door and looked at him, he gave her several verbal commands to come outside, and then he heard a man’s voice. He could not tell what the man said, but appellant shut the door and locked it. Officer Mack then notified his supervisor and made several attempts for police communications to call back for someone to come out, but no one did. Officer Mack’s supervisor then notified the SWAT team to come. Officer Mack set up a perimeter, and the SWAT team responded. After several hours of negotiation, appellant did come out. However, tear gas had to be used to force Mitchell out of the house. Both were taken to the detective division for questioning.
|sThe jury was presented with an interview of appellant by Detective Krystal Haskins at the detective division. Appellant was asked why she called the police, and she stated, “Uh, for my keys.” She explained that Mitchell had taken her keys around 2:00 or 8:00 a.m. She described Mitchell and stated that they had been roommates since September 2011. She said that she called the police because she had to “tussle” with Mitchell to try to get her keys because she wanted to leave. When asked if Mitchell ever struck her, she said, “No, not really. He pulled my arms up behind my head like that and put me in a lock you know.” She said that once she got free, she called the police because she was “real pissed off.” During her conversation with the 911 operator, she was asked if Mitchell had a gun, and she said that she had responded that he did. Haskins asked appellant whether Mitchell had the gun out, and the following was stated:
Appellant: Nnn — it was out, but I really wasn’t paying that much attention to it cause I was frightened like that—
Haskins: Okay.
Appellant: You know what I’m saying? I just know I was like forget that and ran back to my room cause I was on the phone with the Officer and he was steady yapping.
Haskins: Okay, so when you say he had it out, just tell me how he had it out.
Appellant: It was just laying there you know.
Haskins: Did he ever point it at you at any point?
Appellant: Huh uh.
Haskins: Did he ever threaten to use it or—
|4Appellant: Nawww.
Haskins: Okay, uh so you ran and you phoned the police and they asked you did he have a weapon—
Appellant: Uhhuh.
Haskins: and you told them that he did?
Appellant: Yeah.
Haskins: Okay, so then you get the keys and you call and say hey you know what—
Appellant: Yes, I wanna cancel.
Haskins: Don’t worry ’bout it.
Appellant: Yes.
Haskins: Okay, so what happened then?
Appellant: Uh, I know he was on the phone with the uh sheriff or the chief and I — I was listening to them and I laid down and I was like well maybe they’ll end up talking it out. End up — he end up giving my keys back, but I thought they was gonna leave. I end up dozing back off.
Haskins: Were you ever scared of Ron to the point that you felt like you couldn’t leave the house?
Appellant: No.
Haskins: No? You could — you could’ve walked out at any point?
Appellant: Yeah, it was just (inaudible ).
Haskins: That was before the police got there?
| sAppellant: Yeah, it was just I was pissed off cause he wouldn’t give me my keys to the car.
Haskins: Okay.,
Appellant: And that’s the only thing I wanted to get resolved, him to give me my keys. That’s the only reason why I called the police to try to scare him to give me my keys back you know.
Haskins: Okay.
Appellant: But he still didn’t give ’em to me. So I was like what — so I don’t know.
Appellant: Not really. I just didn’t know it was gonna go this far or have all them Officers out there you know..
Lieutenant Tim Calhoun, a member of the SWAT unit, testified that it is protocol when someone cancels a 911 call to make contact with the complainant to ensure that person was not under duress to call back and advise that everything was fine. He also testified that the personnel cost directly related to this call was $8788.06 and that the chemical munitions that were deployed cost $260, for a total of $4048.06. He said that it took four hours from the time SWAT arrived for the event to end.
Appellant moved for a directed verdict at the close of the State’s evidence, arguing that the elements of the charge were not met because she did not report anything other than a Class D felony (Mitchell pulling a gun on her), When the statute requires that she falsely report a Class Y, A, or B felony. Further, appellant claimed that she never said she was not free to leave or that she was being held against her will. Appellant also argued that any money spent on the police labor and munitions was not part of investigating the false police report. |fiThe State responded that the investigation of the entire report is the entire incident. The State claimed that the incident reported was that Mitchell held a gun to appellant and would not allow her to leave, which is kidnapping, a Class B felony.
Appellant added to her motion for directed verdict the argument that the State did not prove that the report was actually false. The State responded that appellant said it was false during the interview with police. The circuit court denied the motion.
Appellant testified that she called the police because Mitchell took her keys from her because he did not want her to leave. They were “tussling,” and she called police. She said she told police that he was threatening her with a gun by making gestures. She said, “It was like he was going to pull it out.” She said that she did not give the police a false report. She said that she still lives with Mitchell.
Appellant renewed her motion for directed verdict based on her argument that the State failed to show that the report was false and that the money that was spent was to investigate a false report. The State added to its earlier response that appellant stated that she was about to kill someone to the 911 operator, which is a Class Y felony. The motion for directed verdict was denied.
The circuit court found that a false report was made and found appellant guilty under Arkansas Code Annotated section 5 — 54—122(b), which provides that “[a] person commits the offense of filing a false report if he or she files a report with any law enforcement agency or prosecuting attorney’s office of any alleged' wrongdoing on the part of another person |7knowing that the report is false.” Appellant was later sentenced to probation and restitution as set forth above. This appeal timely followed.
In reviewing a challenge to the sufficiency of the evidence to support a criminal conviction, we view the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Satterfield v. State, 2014 Ark. App. 633, 448 S.W.3d 211. We will affirm if the finding of guilt is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is that which is of sufficient force to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The weight of the evidence and credibility' of the witnesses are matters for the fact-finder, not for the trial court on a directed-verdict motion or this court on appeal. Id. The fact-finder is free to believe all or part of a witness’s testimony and may resolve all questions of conflicting testimony and inconsistent evidence. Id.
I. False Statement
Appellant first argues that the circuit court erred in denying her motion for directed verdict because the State failed to introduce substantial evidence that she made a false report to a law enforcement agency when she called 911. Appellant contends that she told the operator that Mitchell would not give her keys to her and that he was threatening her with a pistol. She told the operator, “I just want to leave.” Appellant claims that the State’s case was that these statements were false because they were contrary to statements she made later in the day to Detective Haskins. She argues that proof of the inconsistency between two | ^statements given by one person is insufficient, standing alone, to prove which of the statements was false.
Appellant cites Thomas v. State, 51 Ark. 138, 10 S.W. 193 (1888), for the proposition that the inconsistency of two statements given by one person, without additional proof of which statement was false, is insufficient to prove which statement was false. She argues that common law requires that a statement was not proven to be false solely because it was inconsistent with another statement given by the same person. She claims that the State’s proof of the falsity of her statements to the 911 operator was the inconsistency of the statements when compared to statements she made to Detective Haskins. Appellant contends that as a matter of the common- law “two statements” rule, the State’s proof was insufficient.
However, we note that appellant did not make the ineonsistent-statements-rule argument before the circuit court. Her argument was that the two statements did not conflict and that the State did not prove that appellant’s statement was false. At no time did appellant contend that the State’s proof was lacking due to there only being proof of inconsistent statements made by appellant. On appeal, an appellant is limited to the scope and nature of the arguments he or she made below that were considered by the trial court in rendering its ruling. Nalls v. State, 2014 Ark. 434, 445 S.W.3d 509. Accordingly, we affirm on this issue.
II. Proof of Class D Felony
Arkansas Code Annotated section 5-54-122(c)(1)(A) — (E) provides that filing a false report is a Class A misdemeanor unless:
(A) The alleged criminal wrongdoing is a capital offense, Class Y felony, Class A felony, or Class B felony;
1 n(B) The law enforcement agency or prosecuting attorney’s office to whom the false report is made has expended in excess of five hundred dollars ($500) in order to investigate the false report, including the costs of labor;
(C) Physical injury results to any person as a result of the false report;
(D) The false report is made in an effort by the person filing the false report to conceal his or her own criminal activity; or
(E) The false report results in another person being arrested.
Appellant argues that the circuit court erred in denying her motion for directed verdict because the State failed to produce substantial evidence that the Little Rock Police Department expended more than $500 to investigate the alleged false report. She contends that to investigate is to “make an inquiry,” citing Black’s Law Dictionary. She argues that the State did not introduce substantial evidence that the SWAT team officers made any inquiry into the falsity of her report to 911. She maintains that surrounding a building or house is not an inquiry. She admits that her interview with Detective Haskins was an investigation, but she contends that the interview did not cost the police department in excess of $500.
The State argues that appellant incorrectly interprets the statute to suggest that the investigation into the crime of false reporting must cost more than $500, when the investigation is as to the crime alleged in the report that was later found to be false. We agree. We construe criminal statutes strictly, resolving any doubts in favor of the defendant. Malvin v. State, 2014 Ark. App. 584, 446 S.W.3d 208. We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Id. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys, a clear and | indefinite meaning, there is no occasion to resort to rules of statutory interpretation. Id. Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Id. In Sluder v. Steak & Ale of Little Rock, Inc., 361 Ark. 267, 206 S.W.3d 213 (2005), our supreme court stated that it refused to engage in statutory interpretations that defy common sense and produce absurd results.
Accordingly, appellant’s false report resulted in the evidence presented of the man hours and cost to the Little Rock Police Department. This evidence was sufficient to prove an expenditure in excess of $500. Therefore, substantial evidence supports her conviction of a Class D felony. We do not address appellant’s argument regarding Class Y, A, or B felonies because the expenditure in excess of $500 satisfies section 5 — 54—122(c)(l) in elevating filing a false report to a Class D felony.
Affirmed.
Whiteaker and Hixson, JJ., agree. | [
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LARRY D. VAUGHT, Judge
| iAppellant Elizabeth Jeannette McClellan appeals the sentencing order entered by the Sebastian County Circuit Court finding her guilty of theft by deception. She was ordered to serve a six-year suspended sentence and pay restitution, fines, court costs, and fees. On appeal, McClellan challenges the sufficiency of the evidence supporting her conviction. We affirm.
At trial, Andrea Moore testified that she and McClellan were friends. McClellan, who had previously stated that she had taken tax-preparation courses in California, offered to prepare Moore’s 2010 tax return. Moore agreed. McClellan prepared the return, and Moore subsequently received a refund. Moore testified that McClellan did not ask to be paid, but she treated McClellan to dinner.
McClellan also prepared Moore’s 2011 return. Moore testified that McClellan did not give her (Moore) the opportunity to review the return; she was just told to sign the last page. Moore stated that she signed the return without reviewing it because she trusted McClellan and because [2she had prepared the 2010 return without any problems. Moore said that she told McClellan that she (Moore) preferred a refund check, but McClellan said it would be better to have the refund deposited directly into Moore’s bank account: Moore agreed and gave her account information to McClellan. McClellan told Moore the refund would be approximately $5200.
Moore received her refund on March 21, 2012. It was $3346. Moore called McClellan to question the amount of the refund, and McClellan said that she would check into it. When Moore did not hear back, she reached out to McClellan, but she was evasive. A couple of weeks later, Moore received a letter from the IRS stating that, due to mistakes on the return, the requested refund amount of $8135 had been adjusted to $6181. The letter continued by stating that $3346 of the $6181 refund had been deposited into Moore’s account and that the remaining $2835 had been deposited into another account, which was unknown to Moore. After receiving the IRS letter, Moore called McClellan reporting that the refund had been deposited into two accounts. McClellan said that she did not know why that happened and that she would “figure it out.” Moore did not hear back from McClellan.
Thereafter, Moore took the IRS letter to the local IRS office, where she received printouts of the account information where the refund was deposited. Very upset, Moore called McClellan once again, advising that she had been to the IRS office. McClellan was furious, telling Moore that she had trust issues and that McClellan said she would take care of it. When Moore pressed McClellan, she said that she put part of the refund into an interest-bearing account for Moore’s benefit and that they could go to the bank and transfer the funds into RMoore’s account. Moore gave McClellan the opportunity to meet at the bank to transfer the funds, but McClellan refused.
On April 24, 2012, Moore and her fiancé went to McClellan’s home and asked her to go to the bank. McClellan said she needed to shower; Moore said that they would wait. McClellan became belligerent, words were exchanged, and they did not go to the bank.
In May 2012, Moore received a copy of her 2011 return. The refund requested was $8135. The return requested that $2835 of the refund be deposited directly into the unknown bank account. Moore testified that the return listed three men as her dependent brothers who were not related to her or dependent on her. Moore said that she never discussed splitting her refund with McClellan and did not give her permission to deposit any portion of the refund in her account or any other separate account. Moore said that she did not agree to pay McClellan for preparing the 2011 return and that McClellan never asked to be paid. Finally, Moore testified that McClellan had not repaid the money.
The branch manager at Regions Bank, Karen Elaine Nye, testified that the unknown account information was in the name of Elite Custom Computers. One of the co-owners of that account was McClellan. According to Nye, on March 21, an electronic transfer from the U.S. Treasury, labeled as a tax refund for Moore, was made into the account in the amount of $2835.
Fort Smith Police Officer Barbara Williams interviewed McClellan. The officer testified that McClellan said she had written permission from Moore to have part of the refund deposited into her (McClellan’s) account; however, McClellan did not provide it to Williams. McClellan also told the .officer that she was holding the money for Moore because she was being abused |4by her fiancé. Officer Williams met with Moore and confirmed there was no abuse. Officer Williams also reviewed the tax return and the Regions account documents. Thereafter, she contacted McClellan to set up another interview, but McClellan said to stop harassing her and hung up.
At the conclusion of trial, the jury convicted McClellan of theft by deception, and this appeal followed. The sole argument on appeal is that the evidence is insufficient to support her conviction. Specifically, she argues that there was insufficient evidence to establish that she had the intent to defraud Moore. Rather, the evidence showed that Moore agreed to the manner in which McClellan prepared the tax return, but that she changed her mind when the IRS reduced the amount of the refund and Moore received less than she expected.
Our supremé court has held that when a challenge is made to the sufficiency of the evidence on appeal, we will affirm the conviction if there is substantial evidence to support it. McEntire v. State, 363 Ark. 473, 476, 215 S.W.3d 658, 660 (2005). In examining the evidence, we view it in the light most favorable to the State and consider only that evidence supporting the verdict. Id., 215 S.W.3d at 660. Substan tial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id., 215 S.W.3d at 660.
A person commits theft by deception when she knowingly obtains the property of another person by deception or by threat with the purpose of depriving the owner of the property. Ark.Code Ann. § 5 — 36—103(a)(2) (Supp. 2011). An individual acts knowingly when she is aware of the nature of her conduct or of the attendant circumstances of her actions, or when |fishe is aware that it is practically certain that her conduct will cause the result. Ark.Code Ann. § 5-2-202(2) (Repl. 2006). Further, “deception” is defined as preventing another person from acquiring information that would affect her judgment of a transaction, and alternatively as employing any scheme to defraud. Ark.Code Ann. § 5 — 36—101(3)(A)(ii), (v) (Repl. 2006).
With these definitions in mind, we hold that substantial evidence supports McClellan’s theft-by-deception conviction. The evidence demonstrates that when McClellan prepared the 2011 return, she inflated the amount of the refund by claiming dependents that Moore did not have. The refund requested on the return was $8135; however, McClellan told Moore to expect a refund of $5200. Without Moore’s permission, McClellan arranged for $2835 of the refund to be deposited into an account that Moore was unfamiliar with and that was owned by McClellan. Other evidence showed that based on their friendship Moore trusted McClellan to prepare the 2011 tax return, which is why Moore did not question McClellan when she showed Moore only the signature page of the return. Based on these facts, the jury could have concluded that McClellan schemed to defraud Moore by inflating the 2011 refund amount to $8135, telling Moore to expect the lesser amount of $5200, and then taking the difference by secretly diverting it to an account under her control.
McClellan argues that Moore originally agreed to have McClellan direct a portion of the refund into a separate account but changed her mind when the refund was reduced by the IRS. However, the evidence presented to the jury demonstrated that Moore did not agree to have any of her refund deposited into any other account, McClellan was not forthcoming with | ^information about the separate account despite Moore’s multiple inquiries, and McClellan refused to return the money despite Moore’s multiple requests. This is substantial evidence that supports the jury’s conclusion that McClellan knowingly obtained the property of another by deception. Accordingly, we affirm the theft-by-deception conviction.
Affirmed.
Harrison and Brown, JJ., agree.
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JIM HANNAH, Chief Justice
| petitioners Entergy Arkansas, Inc. (“Entergy Arkansas”); Entergy Operations, Inc. (“Entergy Operations”) (collectively “Entergy”); and DP Engineering, Ltd. Co. (“DP”) seek an extraordinary writ of prohibition against the Pope County Circuit Court and Susan Allen, individually, and as administratrix of the estate of Wade Walters, deceased. Petitioners argue Lthat the circuit court acted wholly without jurisdiction to determine whether they are immune from tort liability, pursuant to the Arkansas Workers’ Compensation Act (“the Act”), because that decision is within the exclusive jurisdiction of the Arkansas Workers’ Compensation Commission (“the Commission”). We grant the petitions for writ of prohibition.
In the underlying case, Entergy Arkansas owns the Arkansas Nuclear One plant (“ANO”) near Russellville. Entergy Operations, an agent of Entergy Arkansas, operated the plant and contracted with Precision Surveillance Company (“PSC”) to provide civil engineers for a project at the ANO to lift and to remove a generator stator from ANO’s turbine building and then to replace it with a newly refurbished generator stator. On March 31, 2013, during the course of the project, a steel beam fell from a collapsed crane onto twenty-four-year-old Wade Walters, a journeyman iron worker and PSC employee, who died as a result of multiple crushing injuries. Eight other workers suffered injuries during the accident.
On July 2, 2013, Susan Allen, individually and as the administratrix of Walters’s estate, filed a personal-injury action in the Pope County Circuit Court, naming multiple defendants, including Entergy, DP, and others. In the amended complaint filed July 30, 2013, Allen alleged counts of wrongful death, ordinary negligence, negligent hiring, negligent training, negligent supervision, negligent retention, and negligent hiring of an independent contractor. Allen further sought declaratory judgment, punitive damages, and a jury trial. No claim was filed with the Commission.
| ¡¡Entergy filed a motion to dismiss for lack of subject-matter jurisdiction, asserting immunity under the exclusive-remedy provisions of the Act, or, alternatively, a motion to stay the action pending a review by the Commission. Specifically, in its motion to dismiss, Entergy asserted that, because Walters was a statutory employee of Entergy at the time of his death, the exclusive-remedy provisions of the Act applied, and Entergy was immune from suit. Entergy further asserted that, if the circuit court determined that a factual question existed on the employer issue, then the Commission had exclusive, primary jurisdiction to decide its status as a statutory or special employer. In its motion to dismiss, DP asserted that its employee, John Scroggins, was a special employee of En-tergy and thus was entitled to immunity as Walters’s special co-employee. DP maintained that if Scroggins was immune, then DP was not vicariously liable for Walters’s death. In its answer, DP also pled the affirmative defense of the exclusive-remedy provision under the Act.
On December 19, 2013, the circuit court held a hearing on three cases arising from the ANO incident, including Walters’s case, Jess Clayton v. Bigge Power Constructors, CV-2013-269, and Entergy Arkansas and Entergy Operations, Inc. v. Bigge Crane and Rigging Co., CV-2013-176. Subsequently, on March 12, 2014, the circuit court entered an order denying En-tergy’s and DP’s motions to dismiss, finding, inter alia, that the direct cause of Walters’s death was the collapse of the crane structure; that Walters was an employee of PSC at the time of his death; that Entergy Arkansas owned ANO; that Entergy Operations operated ANO as an agent of Entergy Arkansas; that Walters was covered by workers’ compensation insurance provided by PSC as a named insured; that Jess Clayton and Ronnie Francis, Walters’s co-workers, were also injured in the accident and were covered by similar workers’ compensation insurance provided by PSC; and that Entergy and DP were not Walters’s primary employers. The circuit court also ruled on the following conclusions of law. With regard to Entergy’s motion to dismiss, the circuit court ruled that Entergy did not satisfy the requirements of a statutory or special employer of Walters. Specifically, the circuit court found (1) that no contract for hire existed between Walters and En-tergy; (2) that Walters performed work at ANO for PSC under the PSC-Entergy contract; and (3) that PSC, instead of Entergy, had the right to control Walters. With regard to DP’s motion to dismiss, the circuit court ruled that Scroggins did not have a contract for hire with Entergy; that Scroggins performed work at ANO for DP under the Entergy Operations-DP contract; and that DP had the right to control Scroggins’s work. Further, the circuit court ruled that the referral of Allen’s claims against DP to the Commission would violate Walters’s constitutional right to a jury trial pursuant to the Arkansas Constitution.
On May 7, 2014, Entergy filed a petition for writ of prohibition or certiorari with this court, arguing that the Pope County Circuit Court improperly exerciséd its jurisdiction over an issue that was within the exclusive jurisdiction of the Commission. Specifically, Entergy asserted that the issue to be determined by the Commission was whether a party was a statutory or a special employer under the Act. Subsequently, on June 5, 2014, DP filed a petition for writ of prohibition, arguing that any issues regarding statutory or special employment and immunity defenses should be decided by the Commission and that the circuit court lacked jurisdiction to decide those issues. DP further claimed that a writ of — prohibition should issue because the circuit court erroneously found that Entergy was not a special employer of Scroggins and that co-employee immunity did not apply to Scroggins or DP. On June 16, 2014, Allen responded to DP’s petition for writ of prohibition, claiming that the circuit court properly exercised its jurisdiction when it denied DP’s motion to dismiss after determining that the alleged undisputed facts were so one-sided that DP could not have established immunity as a matter of law. We took Entergy’s and DP’s petitions as a case, and we now consider the parties’ arguments.
For their sole argument, Entergy and DP contend that the Pope County Circuit Court was wholly without jurisdiction to determine the applicability of the Act to the facts of the case. Entergy contends the circuit court lacked jurisdiction to decide their immunity status and the statutory defenses of statutory employer and special employer because the Act provides that the Commission has exclusive jurisdiction to consider these defenses. DP adopted Entergy’s argument in its petition and argued that the Commission had exclusive jurisdiction to determine whether Scroggins was entitled to immunity as Walters’s co-employee.
Entergy and DP ask this court to grant a writ of prohibition. It is well settled that a writ of prohibition is an extraordinary writ that is appropriate only when the lower court is wholly without jurisdiction. Jordan v. Cir. Ct. of Lee Cnty., 366 Ark. 326, 235 S.W.3d 487 (2006). Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. Ulmer v. Cir. Ct. of Polk Cnty., 366 Ark. 212, 234 S.W.3d 290 (2006). Writs of prohibition are prerogative writs, extremely narrow in scope and [ ^operation; they are to be used with great caution and forbearance. Id. Simply stated, writs of prohibition should issue only in cases of extreme necessity. Helena-W. Helena Sch. Dist. #2 of Phillips Cnty. v. Cir. Ct. of Phillips Cnty., 368 Ark. 549, 247 S.W.3d 823 (2007).
Generally, an employer who carries workers’ compensation insurance is immune from liability for damages in a tort action brought by an injured employee. Gourley v. Crossett Pub. Schs., 333 Ark. 178, 968 S.W.2d 56 (1998). This rule, known as the exclusivity doctrine, arises from Arkansas Code Annotated section ll-9-105(a) (Repl.2012), which provides that
[t]he rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer, or any principal, officer, director, stockholder, or partner acting in his or her capacity as an employer, or prime contractor of the employer, on account of the injury or death, and the negligent acts of a coemployee shall not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have.
Most recently, in Reynolds Metal Company v. Circuit Court of Clark County, 2013 Ark. 287, 428 S.W.3d 506, we explained the exclusivity doctrine as follows:
Beginning with the decision in Van-Wagoner v. Beverly Enterprises, 334 Ark. 12, 16, 970 S.W.2d 810, 812 (1998), this court has consistently followed the rule that the Arkansas Workers’ Com pensation Commission “has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless, the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort.” See, e.g., Int'l Paper Co., [v. Clark Cnty. Cir. Ct., 375 Ark. 127, 289 S.W.3d 103 (2008) ]; Erin, Inc. v. White Cnty. Cir. Ct., 369 Ark. 265, 253 S.W.3d 444 (2007); Coonrod v. Seay, 367 Ark. 437, 241 S.W.3d 252 (2006); Moses v. Hanna’s Candle Co., 366 Ark. 233, 234 S.W.3d 872 (2006); Stocks v. Affiliated Foods Sw., Inc., 363 Ark. 235, 213 S.W.3d 3 (2005); Merez v. Squire Court Ltd. P’ship, 353 Ark. 174, 114 S.W.3d 184 (2003); WENCO Franchise Mgmt., Inc. v. Chamness, 341 Ark. 86, 13 S.W.3d 903 (2000) (per curiam). Thus, when a party to a lawsuit raises a question of whether a person enjoys immunity as an employe'r under the Arkansas Workers’ Compensation Act, the Commission must first decide the issue. Miller v. Enders, 2010 Ark. 92 [2010 WL 682268]; McCarthy v. Pulaski Cnty. Cir. Ct., 366 Ark. 316, 235 S.W.3d 497 (2006). In adopting this rule, we have explained that the Commission has vast expertise in this area and that the goals of uniformity, speed, and simplicity would best be achieved by granting the Commission the exclusive, original jurisdiction to determine the applicability of the Workers’ Compensation Act. Carter v. Ga.-Pac. Resins, Inc., 368 Ark. 19, 242 S.W.3d 616 (2006) (citing Johnson v. Union Pac. R.R., 352 Ark. 534, 541, 104 S.W.3d 745, 748 (2003)).
Reynolds, 2013 Ark. 287, at 4, 428 S.W.3d at 509. This court has consistently held that the question of whether an employer-employee relationship exists between the parties is a factual issue solely within the jurisdiction of the Commission. See Honeysuckle v. Curtis H. Stout, Inc., 2010 Ark. 328, 368 S.W.3d 64; Coonrod v. Seay, 367 Ark. 437, 241 S.W.3d 252 (2006).
In the present case, the circuit court acted wholly without jurisdiction in deciding whether ah employer-employee relationship existed between Walters, En-tergy, and DP. Here, the employer-employee relationship between the parties raises numerous factual questions surrounding what Entergy calls Walters’s “unconventional” employment with Enter-gy and DP. Potential factual questions arising from the case may include, but are not limited to, the terms of the parties’ employment contracts, insurance coverage, training, and control of Walters’s time and manner of work. Those determinations lie exclusively with the Commission, as the facts presented below are not so one-sided that the issues of employer status and immunity can be determined as a matter of law. See Van Wagoner, 334 Ark. at 16, 970 S.W.2d at 812. Thus, we hold that the circuit court lacked jurisdiction to determine the applicability of the Act in the first instance, and we decline to delve into the merits of Entergy’s and DP’s arguments regarding their employer status, their potential immunity defenses, and any co-employee liability raised by DP.
This court has stated that where encroachment on the jurisdiction of the Workers’ Compensation Commission is clear, a writ of prohibition is clearly warranted. Porocel Corp. v. Cir. Ct. of Saline Cnty., 2013 Ark. 172, 2013 WL 1776648; W. Waste Indus. v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996); Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993). Therefore, we issue the writs of prohibition with leave for the parties to pursue a determination before the Commission.
Petitions for writ of prohibition granted.
Baker and Hart, JJ., dissent.
. While not named as a respondent by the petitioners, Allen has assumed the role of a separate respondent for purposes of this petition. This court has observed that the proper party as respondent to a petition for writ of prohibition is the circuit court, not the judge, and not an injured worker. See Int'l Paper Co. v. Clark Cnty. Cir. Ct., 375 Ark. 127, 289 S.W.3d 103 (2008). However, in the instant case, the Attorney General notified this court on May 9, 2014, that it would not file a response to Entergy's petition on behalf of the named respondent, the Pope County Circuit Court. See Ltr. from David A. Curran, Deputy Att'y Gen., to Les Steen, Clerk, Re Entergy Ark., Inc. v. Pope Cnty. Cir. Ct., No. CV-14-400 (May 9, 2014). On May 19, 2014, this court granted DP's motion for leave to join in Entergy’s petition, and DP filed its petition for writ of prohibition on June 5, 2014.
. The dissent cites the independent-contractor clause of the contract between Entergy and PSC to support its conclusion that "PSC was Walter's employer." The contract further states that “[njothing herein shall preclude Entergy Operations and the Owners from raising a 'Statutory Employee’ defense, if applicable.” This contractual language not only presents a factual question about Walters’s employer-employee relationship, but it also indicates that the facts are not so one-sided that the issue should be determined as a matter of law. | [
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JOSEPHINE LINKER HART, Associate Justice
| Rylwell, LLC (Rylwell) and the Commissioner of State Lands (Commissioner) appeal from the grant of summary judgment in favor of Men Holdings 2, LLC (Men Holdings) and others setting aside a tax sale due to insufficient notice. On appeal Rylwell argues that the circuit court erred in granting appellees’ cross-motions for summary judgment based on the lack of constitutional notice of the tax sale. Separate appellant Commissioner argues that the circuit court erred in granting summary judgment based on its finding that Men Holdings was an interested party entitled to notice under Arkansas Code Annotated section 26-37-301. We affirm.
This case involves commercial property on Jamison Road in Southwest Little Rock (the Jamison Road Property). Although it was composed of three separate tracts referred to as “Parcel 700, Parcel 800, and Parcel 900,” all 2.14 acres were developed together and [ ?are currently the site of the garages and offices of the Yellow Cab Company. Previously, the land was undeveloped.
In September 1989, Prince House and Bryon House acquired Parcel 800 and Parcel 900 by warranty deed from Worthen Bank and Trust. That transaction gave the Houses an L-shaped tract, 330 feet and 252 feet on the longest dimensions of the property. In May 1994, Cecil and Isabel Hill deeded Parcel 700 to House Properties, Inc. Parcel 700, which is roughly 150 by 150 feet, filled in the cut-out of the L-shaped tract, creating essentially a full rectangular plot. On May 8, 2006, Men Holdings contracted with House Properties, Inc., to purchase the Jamison Road Property for $150,000. It is not disputed that, notwithstanding the intentions of the parties, the metes-and-bounds description in the real-estate contract as well as in the deed, omitted Parcel 700. The warranty deed purporting to convey the Jamison Road Property contained the same metes- and-bounds description.
In 2007, Men Holdings began construction on a half-million-dollar building that they claim is eighty percent on Parcel 700 and twenty percent on Parcel 900. Nonetheless, the building was assessed as being entirely on property owned by Men Holdings. The Pulaski County Tax Collection Division sent tax assessments to Men Holdings at its address of record, which was in Birmingham, Alabama, and it is not disputed that Men Holdings paid the tax bills that it received.
Meanwhile, the Pulaski County Tax Collection Division sent a tax bill for Parcel 700 to House Properties. On December 9, 2008, Barbara House, secretary of House Properties, Line., sent a letter to Debra Buckner, of the Pulaski County Tax Collection Division. The letter stated the following:
In 2006, we sold the property on Jami-son Rd. to Men Holdings II, Inc., for their new building. Since that time, I have kept receiving the real estate tax bill for one of the 3 parcels that represent the combined property they purchased from us. I have contacted the Pulaski County Real Estate Tax division several times and they keep saying they well take cafe of it but I keep getting the bill. I have sent a similar letter to the purchaser, the title company and Irwin Partners, the real estate agent. I don’t know if you can do anything but I am concerned that this property could go up for sale. It is not my bill to pay. The three parcel numbers are 34L4320000700, 34L4320000800, and 34L4320000900. It was our understanding that we sold them all 3 of these properties. I have enclosed the copies of the 2005 tax bills with their legal description along with the bill I received from Pulaski County and the real estate contract from the sale.
The letter concluded by providing House’s phone number and email address, encouraging contact if there were any questions. The letter informed’ the taxing authority of the true owner of Parcel 700, how Parcel 700 likely was being used — combined with Parcels 800 and 900, and that tax bills were not being sent to the true owner.
On February 11, 2009, House sent a similar letter to the then Commissioner of State Lands, Mark Wilcox. Commissioner subsequently sent notices of real estate tax deficiency and pending tax sale via certified mail to Men Holdings at a Little Rock address. The notices were returned as undeliverable. After publication in the Arkansas Democrat-Gazette on June 10, 2011, Parcel 700 was sold on July 12, 2011, at public auction to Rylwell for $2,588. Rylwell received a limited-warranty deed.
On December 27, 2011, Rylwell filed a complaint in the Pulaski County Circuit |4Court for confirmation of the tax sale, quiet title, ejectment, and trespass. Men Holdings answered and brought in the Commissioner as a third-party defendant. In its pleading, Men Holdings asserted that it was denied due process because it received inadequate notice and asked that the tax sale be set aside. Both sides moved for summary judgment.
In its motion, Rylwell asserted that error in the property description deprived Men Holdings not only of its interest in Parcel 700, but also of its right to notice of the tax sale. Men Holdings asserted in its motion that it had purchased Parcel 700, along with Parcels 800 and 900, but that Parcel 700 was mistakenly left out of the properly description in the warranty deed. Further, it asserted that both the Pulaski County Tax Collection Division and the Commissioner had been notified in writing by Barbara House of its ownership of Parcel 700. Men Holdings further asserted that it had constructed a large building primarily on Parcel 700. It contended that once informed that Men Holdings had purchased Parcel 700, the State was required to do more than send notices to an incorrect address, because Men Holdings was at the same time receiving at its correct address (and paying) tax bills for Parcels 800 and 900.
After a hearing, the circuit court granted Men Holdings’ summary-judgment motion. The circuit court found that Men Holdings had received inadequate notice and that the lack of notice violated Men Holdings’ due-process rights. Rylwell timely filed a notice of appeal.
On appeal Rylwell argues that the circuit court erred in granting appellees’ cross-motions for summary judgment based on the lack of constitutional notice of the tax sale. It asserts that there is no dispute that taxes on Parcel 700 were not paid and that pursuant |sto Arkansas Code Annotated section 26-37-101(a)(l), that land was forfeited to the State. Further, the owner of record — House Properties, Inc. — received full statutory notice. It contends that “there was no evidence before the trial court that Appellee Men Holdings had any interest in the properly, either recorded or unrecorded.” Rylwell argues that the circuit court “had no authority to turn back the clock and give Appellee Men Holdings an interest in Parcel 700 by reforming the deed” because a party cannot obtain reformation if it prejudices a subsequent bona fide purchaser. Arguing further, Rylwell asserts that the statute of frauds is implicated in this situation, which makes the contention that there was an oral agreement between House Properties and Men Holdings “totally irrelevant” as to whether Parcel 700 was transferred to Men Holdings. Additionally, it argues that failure to fully comport with Arkansas’s recording laws should inure to its benefit as there was no recorded instrument to show that Men Holdings had an interest in Parcel 700. Rylwell also asserts that because House Properties was the owner of record, Men Holdings could not claim that its due-process rights were violated because those rights belonged to House Properties.
Arguing in the alternative, Rylwell asserts that even if Men Holdings had a constitutionally protected interest in Parcel 700, the notice provided by the Commissioner was sufficient. It acknowledges that, to comport with the due-process clause, notice must be “reasonably calculated, under the circumstances” to apprise the owner of the property of the pending tax sale; however, because House Properties was the owner of record, as verified by a title search, no further steps were necessary. Rylwell contends that publication notice satisfied the requirement to notify the “unknown” owners and “interested parties.”
IsWhen parties file cross-motions for summary judgment, as in this case, we determine on review whether the appellee was entitled to judgment as a matter of law. Ark. State Bd. of Election Comm’rs v. Pulaski Cnty. Election Comm’n, 2014 Ark. 236, 437 S.W.3d 80. In cases involving redemption of tax-delinquent lands, strict compliance with the requirement of notice of the tax sales themselves is required before an owner can be deprived of his or her property. Citifinancial Mortg. Co., Inc. v. Matthews, 372 Ark. 167, 271 S.W.3d 501 (2008). Notice is constitutionally sufficient if, at the time it was sent, it was reasonably calculated to reach the intended recipient. Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006).
First, it is necessary to properly characterize the nature of the proceeding before us. We are not reviewing the transaction between the Commissioner and Rylwell. Rather, we are reviewing the propriety of the State’s taking Parcel 700 for unpaid taxes. As the Supreme Court stated in Flowers, “Before a State may take property and sell it for unpaid taxes, the Due Process Clause of the Fourteenth Amendment requires the government to provide the owner ‘notice and an opportunity for hearing appropriate to the nature of the case.’ ” 547 U.S. 220, 223, 126 S.Ct. 1708, 164 L.Ed.2d 415 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). It is not necessary to have a duly recorded written instrument to be the owner of land. See Ward v. Williams, 354 Ark. 168, 118 S.W.3d 513 (2003). Accordingly, while it is undisputed that there is no recorded instrument memorializing the conveyance of Parcel 700 to Men Holdings, this fact is not dispositive of this case. Any sale of tax-delinquent land without proper notice is void. Sanders v. Ryles, 318 Ark. 418, 885 S.W.2d 888 (1994). If the State has reason to believe that a party or parties have an interest in real estate, it is 17incumbent upon the State to take reasonable steps to give notice to those interested parties. Id.; see also Tulsa Prof. Collection Servs., Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (unsecured creditors in probate proceedings entitled to more than publication notice even though identities were not available by title search). Accordingly, Rylwell’s argument concerning the lack of a validly recorded instrument memorializing the transaction between Men Holdings and House Properties is of no moment.
Rylwell’s assertion of a statute-of-frauds problem likewise does not dispose of this case. Here, the contract between House Properties and Men Holdings had been fully performed. See Ward v. Williams, supra. Also unavailing is Ryl-well’s suggestion that it was a bona fide purchaser. Finally, while we agree that all constitutional rights are personal in nature, Rylwell mischaracterizes the facts of this case when it contends that Men Holdings was attempting to assert House Properties’ constitutional rights. House Properties did receive notice of the delinquency and tax sale; Men Holdings, though entitled to notice, did not.
The taxing authority and the Commissioner were both informed in writing that Parcel 700 had been conveyed to Men Holdings shortly after the Pulaski County Tax |sCollection Division sent a property-tax bill to the previous owner/current owner of record. The Commissioner was also informed in writing that Parcel 700 had been conveyed to Men Holdings when the Commissioner initiated action to take the property for unpaid taxes. This information was sufficient to establish that Men Holdings had a “legally protected property interest” and that the holder of that interest was “reasonably identifiable.” Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983); see also Sanders v. Ryles, supra.
While it is true that the Commissioner subsequently sent notice to Men Holdings by certified mail, when the mail was returned undelivered, additional reasonable efforts to provide notice was required by the Due Process Clause of the Fourteenth Amendment to United States Constitution. Flowers, supra. The Flowers Court held due process requires additional reasonable steps to give notice when the State becomes aware that its prior attempt to give notice has failed. Id. We affirm the circuit court’s finding that the notice provided by the State did not comport with the requirements of due process because the State did not undertake other reasonable steps to ascertain Men Holdings’s address and provide proper notice of its intent to take Parcel 700.
Regarding Rylwell’s alternative argument, Men Holdings’s interest in Parcel 700 was not “unknown” to the State. As noted previously, House Properties provided both Pulaski County and the Commis sioner with written notification of Men Holdings’s interest. For the reasons just stated, due process required the State to take additional steps to provide notice to Men Holdings.
The Commissioner argues that the circuit court erred in granting summary judgment |9based on its'finding that Men Holdings was an interested pgrty entitled to notice under Arkansas Code Annotated section 26-37-301 (Supp. 2007). Relying on the plain wording | inof the statute, the Commissioner asserts that Men Holdings was not “owner” and “interested party” because it did not take title to the property “by virtue of a bona fide recorded instrument at the time of certification to the Commissioner of State Lands.” Ark. Code Ann. § 26-37-301(c). Further, the Commissioner asserts that no further steps were required because he had no reason to doubt that the owner of record had received notice.
Relying on our statutory notice scheme does not insulate the State from the requirements of the Due Process Clause. Flowers, supra. As stated above, it is possible to acquire an interest in land without a written instrument. Further, the Commissioner had In actual written notice of Men Holdings’s interest in Parcel 700. Under these circumstances, we hold that the State was required to take additional reasonable steps to verify whether Men Holdings had an interest in Parcel 700 before depriving it of its ownership. Flowers, supra.
Affirmed.
Hannah, C.J., and Corbin and Danielson, JJ., concur.
. 5804 Oporto Madrid Blvd., Birmingham, AL., 35210. .
. 4607 W. 61st, Little Rock, AR., 72209.
. Under the facts of this case, Rylwell could not be considered a bona fide purchaser. In order to be a bona fide purchaser of land in Arkansas, one must take property in good faith, for valuable consideration, and without notice of a prior interest. Bill’s Printing, Inc. v. Carder, 357 Ark. 242, 161 S.W.3d 803 (2004). A buyer is on notice if he or she is aware of such facts and circumstances as would put a person of ordinary intelligence and prudence on such inquiry that, if diligently pursued, would lead to knowledge of those prior interests. Id. This type of notice must be enough to excite attention or put a party on guard to call for an inquiry. Id. Here, there was a substantial building covering most of Parcel 700, which was taxed as undeveloped property.
. The version of section 26-37-301 in force at the time the tax delinquency occurred stated:
(a)(1) Subsequent to receiving tax-delinquent land, the Commissioner of State Lands shall notify the owner, at the owner’s last known address as certified by the county, by certified mail, of the owner’s right to redeem by paying all taxes, penalties, interest, and costs, including the cost of the notice.
(2) All interested parties shall receive notice of the sale from the Commissioner of State Lands in the same manner.
(3) If the notice by certified mail is returned unclaimed, the Commissioner of State Lands shall mail the notice to the owner or interested party by regular mail.
(4). If the notice by certified mail is returned undelivered for any other reason, the Commissioner of State Lands shall send a second notice to the owner or interested party at any additional address reasonably identifiable through the examination of the real property records properly filed and recorded in the office of the circuit clerk in the county wherein the properly is located as follows:
(A) The address shown on the deed to owner;
(B) The address shown on the deed, mortgage, assignment, or other filed and recorded document to the interested party; or
(C) Any other corrected or forwarding address on file with the county tax collector or county tax assessor.
(b)(1) The notice to the owner or interested party shall also indicate that the tax-delinquent land will be sold if not redeemed prior to the date of sale.
(2) The notice shall also indicate the sale date, and that date shall be no earlier than one (1) year after the land is certified to the Commissioner of State Lands.
(c) As used in this section, "owner” and "interested party” means any person, firm, corporation, or partnership holding title to or an interest in the property by virtue of a bona fide recorded instrument at the time of certification to the Commissioner of State Lands.
(d) The Commissioner of State Lands shall not be required to notify, by certified mail or by any other means, any person, firm, corporation, or partnership whose title to or interest in the property is obtained subsequent to certification to the Commissioner of State Lands.
(e)(1) If the Commissioner of State Lands fails to receive proof that the notice sent by certified mail under this section was received by the owner of a homestead, then the Commissioner of State Lands or his or her designee shall provide actual notice to the owner of a homestead by personal service of process at least sixty (60) days before the date of sale.
(2) As used in this subsection:
(A) "Homestead” means the same as defined in § 26-26-1122; and
(B) "Owner of a homestead” means:
(i) Every owner if the homestead is owned by joint tenants; and
(ii) Either the husband or the wife if the homestead is owned by tenants by the entirety
(3) The owner of a homestead shall pay for the additional cost of the notice by personal service of process under this subsection. | [
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COURTNEY HUDSON GOODSON, Justice.
| Appellant Our Community, Our Dollars (Our Community) appeals the decision of the Saline County Circuit Court finding that the local-option petition certified by the Saline County Clerk did not achieve the number of signatures required for the proposal to be placed on the ballot in the upcoming general election on November 4, 2014. For reversal, Our Community first contends that the circuit court did not acquire jurisdiction to review the county clerk’s certification because the complaint filed by appellees David Bullock, Tiffany Francis, and Bryan Keaton, failed to state a cause of action and because appellees did not plead with particularity their claim of fraud. In connection with this argument, it also argues that the complaint was deficient because appellees failed to attach the local-option petition, or any relevant parts thereof, to the complaint as required by Rule 10(d) of the Arkansas Rules of Civil Procedure. As its second point on appeal, Our Community asserts that the circuit court | ¡¡erred by not considering in its review a number of signatures that the county clerk failed to count prior to certifying the local-option petition. Our Community also argues that the circuit court erred in concluding that Arkansas Code Annotated section 14 — 14—915(d) (Repl.2013) applies to the circuit court’s review of the county clerk’s certification. Alternatively, Our Community contends that, if this statute is applicable, it is unconstitutional.
Appellees have also filed a cross-appeal. In it, they assert that the local-option petition is invalid because it does not contain an enacting clause and that the circuit court erred in finding substantial compliance with the enacting-clause requirement. Finally, they argue that the circuit court committed error by counting signatures that were solicited between the time Our Community filed the petition with the county clerk on July 7, 2014, and the date that the clerk issued the initial notice on July 18, 2014, informing Our Community that the petition was deficient.
Our jurisdiction over this matter falls under Arkansas Supreme Court Rule 1-2(a)(8), as an appeal required by law to be heard by this court. See Ark.Code Ann. §' 3-8-205(e)(l)(B) (Supp.2013). We find merit in the second point on direct appeal; thus, we reverse and remand on that issue. We affirm on cross-appeal."
Our review of the record discloses that Our Community is a ballot-question committee that is the sponsor of the local-option petition in question consisting of a proposal to allow voters in Saline County to decide whether to permit the manufacture and sale of alcoholic beverages in the county. In order for such a proposal to be placed on the ballot, Arkansas Code Annotated section 3-8-205(a) requires a local-option petition to be supported |sby the signatures of thirty-eight percent of the registered voters in the county. The parties agree that 25,580 signatures is the threshold number in this instance. Our Community filed the local-option petition with the county clerk on July 7, 2014. On July 18, 2014, the clerk notified Our Com munity that the proposal did not meet the signature requirements of section 3-8-205(a). Pursuant to section 14-14-915(c), the clerk granted Our Community an additional ten days to augment the petition with additional signatures or to contest the clerk’s exclusion of signatures that were submitted with the petition. On July 28, 2014, Our Community filed additional petition parts and signatures with the county clerk, who on July 31, 2014, certified that the proposal attained thirty-eight percent of the registered voters’ signatures.
Thereafter, on August 8, 2014, appellees Bullock, Francis, and Keaton, who are registered voters in Saline County, filed suit against the county clerk challenging his certification that the petition gained the support of thirty-eight percent of registered voters. In response, the county clerk promptly filed a motion to dismiss, arguing that the complaint filed by appel-lees did not state a valid cause of action and that the local-option petition was not attached to the complaint as required by Arkansas Rule of Civil Procedure 10(d).
On August 14, 2014, Our Community, as the sponsor of the proposal, moved to intervene in the action, and the circuit court entered an order that same day granting the motion. Our Community also filed an answer to the complaint that included a counterclaim and a cross-claim against the county clerk, seeking a declaration that a number of relevant |4statutory provisions are unconstitutional. Also on August 14, 2014, Our Community filed a motion to dismiss appellees’ complaint based on the identical grounds urged by the county clerk.
Later in the day on August 14, 2014, appellees filed an amended complaint. Still later that same afternoon, appellees filed a second amended complaint. Subsequently, on August 18, 2014, appellees responded to Our Community’s motion to dismiss, denying that their complaint was deficient and asserting that, in any event, they had properly amended their complaint. Also on August 18, 2014, the circuit court conducted a hearing and entered an order denying Our Community’s motion to dismiss the complaint.
The circuit court held additional hearings on August 21, and 22, and September 5, 2014. At the hearings, the testimony established that the county clerk’s staff worked to verify the petitions and to determine whether the petitions had been signed by 25,580 registered voters. In that effort, the clerk hired additional personnel at the county’s expense to assist in the verification process. Ultimately, the county clerk verified 25,653 signatures, which was 73 signatures in excess of the required number. However, the testimony also revealed that the clerk stopped counting signatures at that point and that he failed to screen all of the signatures that were submitted with the petition. Specifically, the county clerk did not review a total of 960 signatures. At the behest of the circuit court, the clerk examined the remaining ^signatures and determined that 720 of the 960 uncounted signatures were registered voters in the county. However, the circuit court ruled, based on section 14-14-915(e), that it was not proper for the court to consider the remaining 720 signatures in its review of the certification because the county clerk did not have “jurisdiction” to count or verify signatures after the clerk had issued the certification.
Based on the testimony and evidence presented at the hearings, the circuit court entered an order on September 10, 2014, rescinding the county clerk’s certification of the local-option petition. In its review, the court invalidated a total of 156 signatures,'which left the petition 83 signatures short of the required number. In its order, the circuit court also addressed several matters raised by the parties. The court rejected appellees’ claims that the petition was invalid because it did not include an enacting clause and that the county clerk should not have counted the signatures collected between July 8 and July 17, 2014. The court also ruled against Our Community’s challenge to the constitutionality of the contested statutes. Based on its finding that the petition failed to attain the requisite number of signatures, the circuit court issued an injunction for the removal of the proposal from the ballot; however, the court stayed that directive, pending this appeal, which timely followed the entry of the circuit court’s order. Pursuant to section 3-8-205(e)(i )(B), we have expedited the appeal on our docket.
As part of its first issue, Our Community contends that the original complaint filed by appellees failed to state a cause of action for a signature challenge to the county clerk’s certification and that it also failed to allege sufficient facts to support a claim of fraud. Our |r,Community maintains that the initial complaint filed by appellees was deficient because it failed to plead facts identifying any specific signature alleged to be invalid; because the complaint failed to set forth particular facts showing the total number of challenged signatures; because it did not identify the specific basis for challenging any one signature; and because the complaint did not allege how invalidating any particular signatures would render the certification erroneous. Further, Our Community contends that the amended complaints filed by appellees could not cure the deficiencies found in the original complaint because the amendments were filed after the statutory deadline had expired for challenging the county clerk’s certification. In making this argument, Our Community relies exclusively on law that is pertinent to causes of actions involving election contests. See, e.g., Willis v. Crumbly, 371 Ark. 517, 268 S.W.3d 288 (2007); Tate-Smith v. Cupples, 355 Ark. 230, 134 S.W.3d 535 (2003); McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000). In response, appellees maintain that Our Community’s assertions are based on the flawed premise that election-contest law applies to a challenge of a county clerk’s certification of a local-option petition. In this regard, they insist that the public-policy concerns at issue in election contests are not implicated in challenges to a certification of a local-option petition. See King v. Whitfield, 339 Ark. 176, 182, 5 S.W.3d 21, 24 (1999) (Glaze, J., concurring) (explaining that “election contest procedures are uniquely designed to dispose of all questions or issues quickly so stability and finality can be reached, thus, permitting government to continue as it should”). Appellees also assert that, even if election-contest law applies, they alleged sufficient facts in their original complaint to state a cause of action and that, in any event, they amended their [ 7complaint in a timely fashion and that the amendments remedied any deficiencies lacking in the initial complaint.
Also under this point, Our Community contends that the original complaint was flawed because appellees neglected to append the petition or any of its contested parts to the complaint as required by Rule 10(d) of the Arkansas Rules of Civil Procedure. In opposing this argument, appel- lees assert that it complied with the rule because it attached the county clerk’s certification as an exhibit to the complaint. Further, they argue that their amended complaints included the challenged petition parts, thereby rectifying any defects in the initial complaint.
The instant case marks the first occasion that this court has been asked to apply the law governing election contests and its requirements for stating a cause of action to a case involving a challenge to a county clerk’s certification of a local-option petition. The question whether Rule 10(d) applies in such a case is also a matter of first impression. Although these are threshold issues, neither of them compromises the jurisdiction of the circuit court to review the clerk’s certification. Cf. Willis v. King, 352 Ark. 55, 98 S.W.3d 427 (2003) (recognizing that the filing deadlines set by statute are mandatory and jurisdictional). As a consequence, we deem it unnecessary to address these issues in light of our decision to reverse and remand on the next point. Any opinion we could offer on these matters would be purely advisory, and it is well settled that this court does not issue advisory opinions. See Goodloe v. Goodloe, 2014 Ark. 300, 439 S.W.3d 5.
In its second issue, Our Community claims error in the circuit court’s refusal to |sconsider the testimony of a deputy clerk that the local-option petition contained an additional 720 signatures of registered voters that the county clerk had declined to review. Because the circuit court found that the petition failed by 83 signatures, Our Community contends that, had the circuit court considered the 720 signatures, the number of signatures would exceed that required for certification.
In ruling that it was prohibited from considering these signatures, the circuit court based its decision on an interpretation of section 14-14-915(e). We review issues of statutory interpretation de novo because it is for this court to decide what a statute means. Berryhill v. Synatzske, 2014 Ark. 169, 432 S.W.3d 637. However, this court will accept a circuit court’s interpretation of the law unless it is shown that the court’s interpretation was in error. Holbrook v. Healthport, Inc., 2014 Ark. 146, 432 S.W.3d 593. The basic rule of statutory construction is to give effect to the intent of the legislature. Valley v. Pulaski Cnty. Circuit Court, 2014 Ark. 112, 431 S.W.3d 916. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Bell v. McDonald, 2014 Ark. 75, 432 S.W.3d 18.
Section 14-14-915(e) provides as follows:
Insufficiency of Petition and Recertifi-cation. If the county clerk finds the petition insufficient, within ten (10) days after the filing thereof the clerk shall notify the petitioners or their designated agent or attorney of record, in writing, setting forth in detail every reason for the findings of insufficiency. Upon notification of insufficiency of the petition, the petitioners shall be afforded ten (10) calendar days, exclusive of the day notice of insufficiency is receipted, in which to solicit and add additional signatures, or to submit proof tending to show that signatures rejected by the county clerk are correct and should be counted. Upon resubmission of a petition which ivas previously declared insufficient, within five (5) calendar days the county clerk shall recertify its sufficiency or insufficiency \ain the same manner as prescribed in this section and, thereupon, the clerk’s jurisdiction as to the sufficiency of the petition shall cease.
Ark.Code Ann. § 14-14-915(e) (Repl.2013) (emphasis supplied). In not considering the 720 signatures, the circuit court reasoned that the county clerk could not presently review the uncounted signatures because the clerk’s jurisdiction had ended.
We disagree with the circuit court’s ruling. With regard to a county clerk’s certification, section 3-8-205 provides that, “[i]f it is found that thirty-eight percent (38%) of the qualified electors have signed the petition, the county clerk shall certify that finding to the county board of election commissioners!)]” Ark.Code Ann. § 3-8-205(b) (Supp.2013) (emphasis supplied). Thus, a county clerk is to certify the “finding” that thirty-eight percent of the registered voters in the county signed the petition, and it is this finding that a circuit "court is to review. Section 14-14-915(e) does not purport to preclude a circuit court from considering in its review the entirety of the petition, which includes all of the signatures that were submitted to a county clerk with the petition. The statute merely sets a deadline of five days for the county clerk to complete the task of determining whether thirty-eight percent of the registered voters signed the petition, after the sponsors have been given ten days to cure the previous deficiencies. Although the statute couches the deadline in jurisdictional terms, it does not follow that a circuit court is prohibited from considering uncounted signatures when determining the correctness of a clerk’s certification that thirty-eight percent of the registered voters signed the petition. Significantly, a circuit court’s review of the certification is de novo. Gocio v. Harkey, 211 Ark. 410, 200 S.W.2d 977 (1947); Nowlin v. Kreis, 213 Ark. 1027, 214 S.W.2d 221 (1948); Ferguson v. Leach, 210 Ark. 1032, 199 S.W.2d 305 (1947); Tollett v. Knod, 210 Ark. 781, 197 S.W.2d 744 (1946). Although a county clerk is required to meet the deadline, the clerk’s loss of jurisdiction after five days does not limit the evidence that can be received in circuit court upon its de novo review of the certification. On review, a circuit court is called upon to determine whether the petition was sufficient, meaning whether thirty-eight percent of the registered voters signed the petition. And, in that review, a circuit court must consider the entire petition. To hold otherwise would silence the voices of registered voters who properly affix their names to a petition but whose signatures are deemed unnecessary to count by a county clerk. This we will not allow. For these reasons, we hold that the circuit court clearly erred by refusing, to consider the 720 signatures in its review of-the clerk’s certification. Therefore, we reverse and remand on this point.
|nAs its next issue on appeal, Our Community asserts that the circuit court erred in applying a portion of 14-14-915(d) to exclude all of the signatures found on a petition part that contains an invalid signature. It contends that this provision applies only to a county clerk’s screening of a petition and that it, is not applicable to a circuit court’s review of a certification. Based on this contention, Our Community argues that the circuit court erred by excluding a total of 92 signatures. We consider it necessary to address this argument, given our decision to reverse and remand on the previous point.
At issue here is the second sentence of section 14-14-915(d), which provides
Where the petition contains evidence of forgery, perpetuated either by the circulator or with his or her connivance, or evidence that a person has signed a name other than his or her own to the petition, the prima facie verity of the circulator’s affidavit shall be nullified and disregarded, and the burden of proof shall be upon the sponsors of petitions to establish the genuineness of each signature.
As stated, Our Community contends that this provision applies only to the county clerk’s ministerial duties in vetting the petition, but not the circuit court’s review of the clerk’s certification. Upon our de novo review of this issue of statutory interpretation, we are not persuaded by this argument.
The Arkansas Constitution places the burden of proof upon the person or persons attacking the validity of the petition. Ark. Const, art. 5, § 1 [as amended by amendment 7]. Under the subheading on verification of petitions, amendment 7 provides,
Only legal voters shall be counted upon petitions. Petitions may be circulated and presented in parts, but each part of any petition shall have appellees cannot have it both ways. |12attached thereto the affidavit of the person circulating the same, that all signatures thereon were made in the presence of the affiant, and that to the best of the affiant’s knowledge and belief each signature is genuine, and that the person signing is a legal voter and no other affidavit or verification shall be required to establish the genuineness of such signatures.
This provision, as to the effect to be given the affidavit of the circulator, has long been interpreted to mean that the circulator’s affidavit is given prima facie verity. Parks v. Taylor, 283 Ark. 486, 678 S.W.2d 766 (1984) (citing Sturdy v. Hall, 201 Ark. 38, 143 S.W.2d 547 (1940)). But this presumption is not conclusive. Id. If it is shown that the affidavit attached to a particular petition is false, that petition loses the presumption of verity. Id. The burden will then shift to the proponent of the petition to establish the genuineness of each signature. Id.
In Save Energy Reap Taxes v. Shaw, 374 Ark. 428, 288 S.W.3d 601 (2008), this court specifically held that the second sentence of section 14-14-915(d) applies to local-option petitions. There, the circuit court found that a number of the signatures certified by the county clerk were invalid and could not be counted toward the number needed to place the issue on the ballot. In doing so, the circuit court considered the testimony of a forensic doc ument examiner, as well as its own review of questionable initiative petitions and signatures, and the admission of a canvasser. The circuit court also heard testimony from several individuals whose purported signatures were questioned. After considering the evidence, the court ruled that signatures with common authorship appeared on twenty-three petition pages. Because a canvasser had attached what the circuit court determined was a false affidavit to those pages, the circuit court invalidated all of the signatures on those pages — aJjjtotal of 238 signatures.
On appeal in Save Energy, the appellant argued that the circuit court erred by invalidating the petitions in their entirety because the appellees did not present evidence that the canvassers consciously submitted false affidavits. Based on the second sentence of section 14-14-915(d), we rejected that argument, saying
In the instant case, there was sufficient evidence on which the circuit judge could rely to find that certain people signed names other than their own on various initiative petitions submitted to the county clerk by SERT. As such, the circuit judge was well within his bounds to reject the validity of those petitions and invalidate all of the signatures in the absence of proof from SERT that each signature was, in fact, valid. Accordingly, the burden of proving the genuineness of the disputed signatures shifted to SERT. Neither Ruth Reynolds, nor any other canvasser, however, testified that the individual signatures on the initiative petitions, other than those with common authorship, were valid or genuine. SERT’s burden of proof was not met. We hold that the circuit judge did not clearly err on this issue.
Save Energy, 374 Ark. at 437, 288 S.W.3d at 605-06.
Also, in Mays v. Cole, 374 Ark. 532, 289 S.W.3d 1 (2008), we reiterated that section 14 — 14—915(d) is controlling-in county initiative proceedings. We said,
Appellants submitted affidavits by two people, whose alleged signatures appear on a petition, in which they state under oath that they did not sign the petition. The circuit court’s order acknowledges that Appellants produced evidence of two allegedly forged signatures. Therefore, they have satisfied their burden of proof under section 14-14-915(d), and the burden of proof shifted to Appellees to prove the genuineness of the signatures on the petition. In view of the fact that Appellees failed to produce any evidence on this issue, all the signatures on the petition that contain the alleged forgeries must be decertified. According to the record, fourteen of the signatures on that petition, including the two allegedly forged signatures, were counted for the purpose of certification. We, therefore, direct that all fourteen signatures be decertified.
Mays, 374 Ark. at 542, 289 S.W.3d at 7.
|14As can be seen, this court has consistently applied section 14 — 14—915(d) in legal proceedings, and in particular to local-option matters. We perceive nothing in the language of the statute that limits its application to the county clerk’s verification process. Consequently, this argument is without merit. Our Community presented no evidence verifying the excluded signatures. Therefore, the circuit court correctly excluded all of the signatures found on petitions where any one signature was found to be invalid.
As an alternative argument, Our Community contends that, if the statute applies, it is unconstitutional because it conflicts with amendment 7. It argues that the statute places the burden of proof on the sponsor, whereas amendment 7 places the burden of proof on the person attacking the validity of the petition. This argument is also without merit.
In considering the decision of the circuit court, every statute is presumed constitutional. Reed v. Arvis Harper Bail Bonds, Inc., 2010 Ark. 338, 368 S.W.3d 69. If it is possible to construe a stdtute as constitutional, we must do so. In re Guardianship of S.H., 2012 Ark. 245, 409 S.W.3d 307. Because statutes are presumed to be framed in accordance with the Constitution, they should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. Id. Any doubt is resolved in favor of constitutionality. Cato v. Craighead Cnty. Circuit Court, 2009 Ark. 334, 322 S.W.3d 484.
Amendment 7 provides that “[i]n the event of legal proceedings to prevent giving legal effect to any petition upon any grounds, the burden of proof shall be upon the person or persons attacking the validity of the petition.” The amendment also states that the General Assembly may enact laws “to facilitate its operation.” To reiterate, section 14 — 14—915(d) | ^states,
Where the petition contains evidence of forgery, perpetuated either by the circulator or with his or her connivance, or evidence that a person has signed a name other than his or her own to the petition, the prima facie verity of the circulator’s affidavit shall be nullified and disregarded, and the burden of proof shall be upon the sponsors of petitions to establish the genuineness of each signature.
In our view, section 14-14-915(d) does not conflict with amendment 7. Under the statute, the person attacking the petition must first meet the burden of proving that the petition contains evidence of forgery or that there is evidence that a person has signed a name other than his own. See Mays, supra. This is entirely consistent with the constitution, which places the burden of proof on the challenger. However, once the contestant meets this burden, the burden shifts to the sponsor to establish the genuineness of each signature that the challenger has show to be false. Because the burden of proof is on the contestant in the first instance, the statute does not conflict with the constitution.
We now turn to the issues raised by appellees on cross-appeal. As their first point, appellees contend that the petition should not have been certified because the proposal did not contain an enacting clause as required by the constitution and Arkansas Code Annotated section 7-9-104(a) (Supp.2013). They argue that this is so, particularly under the circumstances of this case, where the petition referred to the proposal as an “ordinance.”
Amendment 7 states that “[t]he style of all bills initiated and submitted under the provisions of this section shall be, ‘Be it Enacted by the People of the State of Arkansas, (municipality or county, as the case may be).’ ” Section 3-8-205(f) provides that “except as provided in this section, a petition for local-option election shall be governed by section 7-9-Jl0l1fi et seq.” Section 7-9-104(a) proscribes that a petition for an “ordinance, act, or amendment proposed by initiative shall be on substantially the following form,” and this form includes an enacting clause similar to the one provided in the constitution.
The petition in this case reads as follows:
INITIATIVE PETITION
To the Honorable Doug Curtis, County Clerk of Saline County, Arkansas
We, the undersigned registered voters of Saline County, Arkansas respectfully propose the following ordinance and by this, our petition, order that the same be submitted to the people of said county to the end that the same may be adopted, enacted or rejected by a vote of the registered voters of said county at the regular general election [to] be held on the 4th day of November, 2014 and each of us for himself or herself says:
I have personally signed this petition: I am a registered voter of Saline County, Arkansas, and my printed name, date of birth, residence, city or town of residence, and date of signing this petition are correctly written after my signature.
TO ALLOW THE SALE AND MANUFACTURE OF ALCOHOLIC BEVERAGES IN SALINE COUNTY, ARKANSAS. TO REPEAL THE ABOLITION OF THE SALE AND MANUFACTURE OF INTOXICATING LIQUORS WITHIN SALINE COUNTY, ARKANSAS AND TO ALLOW THE DIRECTOR OF THE ALCOHOL BEVERAGE CONTROL DIVISION OF THE STATE OF ARKANSAS TO GRANT LICENSES FOR THE SALE OR MANUFACTURE OF INTOXICATING LIQUORS TO INCLUDE ALCOHOLIC BEVERAGES OF ANY KIND AND TYPE, INCLUDING BUT NOT LIMITED TO BEER, VINOUS, SPIRITOUS, AND MALT LIQUOR WITHIN SALINE COUNTY, ARKANSAS PURSUANT TO APPLICABLE STATE LAW AND REGULATIONS RELATED TO ALCOHOLIC BEVERAGES.
Noticeably, the measure does not contain an enacting clause. The circuit court ruled that it was not necessary for the petition to contain an enacting clause because no statute or ordinance was being enacted as a result of the petition. The court also found that the petition substantially complied with section 7-9-104(a).
This court has consistently held that local-option elections are not initiated measures [17within the meaning of amendment 7 but are in the nature of a referendum measure. Brown v. Davis, 226 Ark. 843, 294 S.W.2d 481 (1956). In the case of Yarbrough v. Beardon, 206 Ark. 553, 177 S.W.2d 38 (1944), where we held that local-option laws did not conflict with the constitution, we explained,
Amendment No. 7 to the constitution has no application. This is not an initiated act as provided for in that amendment. It is merely a submission to the legal voters of the county on the sale of liquor, and is more in the nature of a referendum than an initiative petition. Yarbrough, 206 Ark. at 555, 177 S.W.2d at 39.
When local-option questions are placed on the ballot, the form in which the issue is presented to the voters is either “FOR the Manufacture or Sale of Intoxicating Liquors” or “AGAINST the Manufacture or Sale of Intoxicating Liquors.” Ark.Code Ann. § 3-8-206(a)(l) (Repl.2008). Depending on the result of the election, the Director of the Alcoholic Beverage Control Division may or may not issue licenses or permits for the manufacture or sale of intoxicating liquors within the designated territory affected by the election. Ark. Code Ann. § 3-8-208(a) & (b) (Repl.2008).
As is evident, a local-option petition is not the sort of measure that requires the inclusion of an enacting clause. Such a proposal is demonstrably not an ordinance to which section 7-9-104(a) would strictly apply. As we have said, the pre-filing requirements for local-option measures are not governed by amendment 7. Dean v. Williams, 339 Ark. 439, 6 S.W.3d 89 (1999) (recognizing that it is only after such petitions are filed with the county clerk that subsequent proceedings are conducted in the manner provided for county initiative measures under Amendment 7 and its enabling acts). Therefore, the circuit court did not errjjgin finding substantial compliance with the statute and by not decertify-ing the petition based on the absence of an enacting clause.
As their final point on cross-appeal, appellees argue that the circuit court should not have counted 2,074 signatures that were collected between July 7 (the date the petition was filed), and July 18 (the date the clerk notified Our Community that the petition was deficient). They contend that the plain language of section 14-14-915(e) allows additional signatures to be solicited and added only after the county clerk’s notice of deficiency is given.
As relevant here, section 14-14-915(e) provides that “[u]pon notification of insufficiency of the petition, the petitioners shall be afforded ten (10) calendar days, exclusive of the day notice of insufficiency is receipted, in which to solicit and add additional signatures, or to submit proof tending to show that signatures rejected by the county clerk are correct and should be counted.” Applying our familiar rules of statutory construction, we agree with appellees that this provision does envision the collection of signatures following the clerk’s notification that the petition, as originally submitted, is insufficient. However, there is nothing in the statute that expressly prohibits a sponsor from collecting signatures after the petition has been filed with the county clerk. In construing statutes, this court will not add words to a statute to convey a meaning that is not there. McMillan v. Live Nation Entm’t, Inc., 2012 Ark. 166, 401 S.W.3d 473. Furthermore, we will not read into a statute a provision not put there by the General Assembly. Neeve v. City of Caddo Valley, 351 Ark. 235, 91 S.W.3d 71. Accordingly, we are not able to ascribe meaning to the statute to forbid the collection of signatures during this time period when such is not explicitly prohibited by the statute. We|19affirm on this point.
In conclusion, the circuit court’s order overturning the county clerk’s certification is reversed, and this matter is remanded for the circuit court to perform its de novo review by determining the sufficiency of the petition, as consistent with this opinion. In its review, the circuit court is to consider the validity of the uncounted 720 signatures.
Reversed and remanded on direct appeal; affirmed on cross-appeal.
Mandate to issue immediately.
HANNAH, C.J., and CORBIN and DANIELSON, JJ„ dissent.
. As required by Arkansas Code Annotated section 16-111-106 (Repl.2006), appellees notified the attorney general of these constitutional challenges. The attorney general declined to participate.
. The county clerk subsequently withdrew its motion to dismiss.
. Unlike the dissent, we decline to consider the issue moot. This case presents a preelection challenge to a proposal that is currently on the ballot, and election day has not passed. The parties have brought this case to us in all due haste as required under the statutory scheme. Although there are time constraints associated with remanding this case so near election day, such is the nature of pre-election contests, which are expedited for that very reason. We choose not to shirk our duty to review the circuit court’s decision and to reverse in the face of clear error, which is the root cause of the present timing difficulties. To hold otherwise would in all practicality insulate such decisions from review. This, too, we will not permit.
. Appellees suggest that Our Community should have sought a writ of mandamus to compel the county clerk to verify all of the signatures that accompanied the petition. However, mandamus is an appropriate remedy only when a public officer is called upon to do a plain and specific duty, which is required by law and which requires no exercise of discretion. Clowers v. Lassiter, 363 Ark. 241, 213 S.W.3d 6 (2005). As stated above, a county clerk’s duty is to determine only whether thirty-eight percent of the registered voters of the county signed the petition. Section 3-8-205 does not provide direction as to how this task is to be accomplished. Therefore, it would appear that a clerk possesses some measure of discretion in carrying out this task. Moreover, appellees’ contention is at odds with their assertion that the clerk lost jurisdiction to further verify signatures. They fail to explain how mandamus would lie against the clerk after the jurisdictional deadline has expired. In short, appellees cannot have it both ways.
. The dissenting justices’ view that it is necessary for the county clerk to review the 720 signatures is not required under the law. The county clerk has certified, pursuant to section 3-8-205(b), that the local-option petition attained the approval of thirty-eight percent of the registered voters in the county. Therefore, the county clerk has completed his statutory responsibility of certifying the petition, and the clerk’s jurisdiction has ended pursuant to section 14-14-915(e). On remand, the question before the circuit court, in its de novo review, will be whether the county clerk's original certification of the petition stands upon consideration of the additional 720 signatures. For the circuit court to make this determination is not a usurpation of the county clerk’s duties; rather, it is precisely the function of the circuit court to review the sufficiency of the petition. | [
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JOSEPHINE LINKER HART, Associate Justice
|TIn 2011, a Baxter County jury convicted Tracy Standridge of Class D felony violating an order of protection, and the circuit court sentenced him to fifty-four months in prison. At the same hearing, his probation for a prior offense of violation of a protection order was revoked. Separate appeals were taken from the revocation order and the conviction. The appeal from the revocation order was lodged in the Arkansas Court of Appeals, which affirmed the probation revocation. Standridge v. State, 2012 Ark. App. 563, 423 S.W.3d 677. The court of appeals dismissed Standridge’s appeal from the conviction. Standridge v. State, 2012 Ark. App. 585, 2012 WL 5328603. This court, however, subsequently allowed Standridge to lodge his appeal from the conviction. Standridge v. State, 2013 Ark. 134, 2013 WL 1281836. The court of appeals certified the appeal to this court on the grounds that the appeal involved issues of first impression, of substantial public interest, needing clarification of the law or the overruling of precedent, and concerning the interpretation of an act of the General Assembly. Ark. Sup. Ct. R. 1 — 2(b)(1), 1⅞(4), (5), (6) (2014). We have accepted certification of the appeal. We hold that the circuit court lacked subject-matter jurisdiction, and we reverse and dismiss Standridge’s conviction.
Our decision in this case turns on the State’s decision to charge and try Stand-ridge for violation of a protection order under Arkansas Code Annotated section 9-15-207 (Repl. 2009), rather than the criminal-code provision for violation of a protection order found at Arkansas Code Annotated section 5-53-134 (Supp. 2013). To understand our decision, it is first necessary to describe the respective statutes.
In pertinent part, Arkansas Code Annotated section 9-15-207, which is a statute that is part of The Domestic Abuse Act of 1991, provides as follows:
(a) Any order of protection granted under this chapter is enforceable by a law enforcement agency with proper jurisdiction.
(b) An order of protection shall include a notice to the respondent or party restrained that:
(1) A violation of the order of protection is a Class A misdemeanor carrying a maximum penalty of one (1) year imprisonment in the county jail or a fine of up to one thousand dollars ($1,000), or both;
(2) A violation of an order of protection under this section within five (5) years of a previous conviction for violation of an order of protection is a Class D felony;
(3) It is unlawful for an individual who is subject to an order of protection or convicted of a misdemeanor of domestic violence to ship, transport, or possess a firearm or ammunition pursuant to 18 U.S.C. § 922(g)(8) and
(9) as it existed on January 1, 2007; and
(4) A conviction of violation of an order of protection under this section within five (5) years of a previous conviction for violation of an order of protection is a Class D felony.
(c) For respondents eighteen (18) years of age or older or emancipated minors, jurisdiction for the criminal offense of violating the terms of an order of protection is with the circuit court or other courts having jurisdiction over criminal matters.
In sum, subsection (a) provides that a law enforcement agency may enforce an order of laprotection. Subsection (b) refers to what is included in the notice. Subsection (c) provides that jurisdiction for the “criminal offense” is with the circuit court. In describing the purpose of The Domestic Abuse Act of 1991, Arkansas Code Annotated section 9-15-101 (Repl. 2009) provides:
The purpose of this chapter is to provide an adequate mechanism whereby the State of Arkansas can protect the general health, welfare, and safety of its citizens by intervening when abuse of a member of a household by another member of a household occurs or is threatened to occur, thus preventing further violence. The General Assembly has assessed domestic abuse in Arkansas and believes that the relief contemplated under this chapter is injunctive and therefore equitable in nature. The General Assembly hereby finds that this chapter is necessary to secure important governmental interests in the protection of victims of abuse and the prevention of further abuse through the removal of offenders from the household and other injunctive relief for which there is no adequate remedy in current law. The General Assembly hereby finds that this chapter shall meet a compelling societal need and is necessary to correct the acute and pervasive problem of violence and abuse within households in this state. The equitable nature of this remedy requires the legislature to place proceedings contemplated by this chapter under the jurisdiction of the circuit courts.
Thus, the statutes provide a “mechanism” by which “injunctive” and “equitable” relief can be sought to protect victims of domestic abuse.
By contrast, section 5-53-134 provides in relevant part:
(a)(1) A person commits the offense of violation of an order of protection if:
(A) A circuit court or other court with competent jurisdiction has issued a temporary order of protection or an order of protection against the person pursuant to the The Domestic Abuse Act of 1991, § 9-15-101 et seq.;
(B) The person has received actual notice or notice pursuant to the Arkansas Rules of Civil Procedure of a temporary order of protection or an order of protection pursuant to the The Domestic Abuse Act of 1991, § 9-15-101 et seq.; and
(C) The person knowingly violates a condition of an order of protection issued pursuant to the The Domestic Abuse Act of 1991, § 9-15-101 et seq.
l4(b)(l) Except as provided in subdivision (b)(2) of this section, violation of an order of protection under this section is a Class A misdemeanor.
(2) Violation of an order of protection under this section is a Class D felony if:
(A) The offense is committed within five (5) years of a previous conviction for violation of an order of protection under this section;
(B) The order of protection was issued after a hearing of which the person received actual notice and at which the person had an opportunity to participate; and
(C) The facts constituting the violation on their own merit satisfy the elements of any felony offense or misdemeanor offense, not including an offense provided for in this section.
The statute contains the elements the State must prove to obtain a conviction for the crime of violation of a protection order. To sustain a conviction, the State must prove that a circuit court has issued a temporary order of protection or an order of protection against the person, that the person has received actual notice or notice under the Arkansas Rules of Civil Procedure of a temporary order of protection or an order of protection, and that the person knowingly violates a condition of an order of protection. The statute further ■ provides that violation of an order of protection is a Class A misdemeanor. The statute, however, further provides that the offense is a Class D felony if the State further proves that the offense is committed within five years of a previous conviction for violation of an order of protection, that the order of protection was issued after a hearing of which the person received actual notice and at which the person had an opportunity to participate, and that the facts constituting the violation on their own merit satisfy the elements of any felony offense or misdemeanor offense.
The record discloses that on September 2, 2010, the State charged Standridge by information with violation of a protection order under section 5-53-134 as a Class D felony. |fiThe State’s Juné 2, 2011 amended information also charged him with a Class D felony and cited to section 5-53-134. On July 22, 2011, however, the State filed an amended information charging Standridge with a Class D felony violation of a protection order, citing section 9-15-207. The information further provided as follows:
A person commits the crime of Violation of Protection Order if: knowingly a circuit court or other court with competent jurisdiction has issued a temporary order of protection or an order of protection against the person pursuant to the The Domestic Abuse Act of 1991.... Committed as follows, to wit: the Defendant did unlawfully and feloniously on or about July 29, 2010, in Mountain Home, Arkansas, called the victim at work on two separate occasions and stated in very explicit terms that “she (victim) pushed him to the edge and she is dead” another call followed in which the defendant stated, “Just remember every person who walks through that door could be someone I’ve sent.” The victim has an order of protection against the defendant until December 2011. The defendant has been previously found guilty of the same offense on April 29, 2010 and July 28, 2009. To Wit: Violation of a Protection Order and Habitual Offender, against the peace and dignity of the State of Arkansas.
At a hearing held the same day, the court granted the State’s motion to amend the information. In support of its motion, the State asserted that the amendment “largely changes the number of the statute” and that “our factual allegations are the same but the number of the statute is switched from 5-53-134 to 9-15-207.” The court then continued the case.
At a subsequent hearing, Standridge’s counsel noted that the case had been continued to allow him to prepare for trial following the State’s amendment of the information. Counsel argued that section 5-53-134 was the correct statute to proceed under for a prosecution and not sec tion 9-15-207, which counsel described as a noneriminal statute. Counsel argued that because section 9-15-207 was not a criminal charge, the charge should be dismissed as filed. Counsel asserted that the State had amended the information because section 9-15-207 did |finot, as did section 5-53-134, provide that in order to establish a Class D felony, the State must prove that the order of protection was issued after a hearing of which the person received actual notice and at which the person had an opportunity to participate. In reply, the State argued that section 9-15-207 was a criminal statute. The State acknowledged that a hearing on the order of protection was held on December 1, 2009, that Standridge was not present at the hearing, that the order of protection was issued, and that the next day the sheriff returned an unserved notice of the hearing. The circuit court denied the motion to dismiss.
During its opening argument to the jury, the State conceded that the protection order was granted at a hearing held December 1, 2009, that Standridge was not given notice of the hearing, and that he was not present at the hearing. The State then presented evidence from Caroline Wood, who testified that she had obtained the protection order against Standridge. She testified that on July 29, 2010, Stand-ridge had called her at work and said, “You have touched me to the edge. You are a dead bitch, do you understand me? You are dead.” Wood acknowledged that Standridge was not present at the December 1, 2009 hearing.
At the conclusion of this testimony, Standridge’s counsel moved for a directed verdict, arguing that it was clear from the State’s concession that Standridge had not received notice to appear at the December 1, 2009 hearing as required by section 5-53-134. In response, the State argued, “We have proceeded under a different statute that does not require that particular element” and therefore the State had met its burden of proof. The circuit court denied the motion.
Standridge then elicited evidence from the chief deputy circuit clerk from Baxter [7County Circuit Court that her records indicated that Standridge was not served with the notice for the December 1, 2009 hearing. Standridge’s counsel renewed his motion for a directed verdict and his motion to prohibit the amendment to the information. Counsel again argued that Standridge was never served with notice of the December 1, 2009 hearing on the protection order. Counsel further alleged that the court had committed cumulative errors. In response, the State argued that section 9-15-207 was a criminal statute. The court denied the motions.
Standridge’s counsel then proffered a jury instruction that counsel asserted was “taken verbatim” from section 5-53-134. The proffered instruction included language that the State must prove that the order of protection was issued after a hearing of which the person received actual notice and at which the person had an opportunity to participate. The State argued that Standridge was instead charged under section 9-15-207 and not section 5-53-134. The court rejected Standridge’s proffered instruction and instructed the jury as follows:
Tracy Standridge is charged with the offense of violation of a protective order. To sustain this charge the State must prove beyond a reasonable doubt that , (A) A circuit court or other court with competent jurisdiction has issued an order of protection against Tracy Stand-ridge pursuant to the The Domestic Abuse Act; and (B) That Tracy Stand-ridge has received actual notice or notice of the order of protection; and (C) That
Tracy Standridge knowingly violated a condition of an order of protection issued pursuant to the The Domestic Abuse Act. (D) It is a violation if the facts constituting the violation on their own merit satisfy the elements of any felony offense or misdemeanor offense.
We note that while the jury instruction instructed the jury on some of the elements of the offense provided for in section 5-53-134, missing from the jury instruction was language from |ssection 5-53-134 to the effect that violation of an order of protection is a Class D felony if the offense is committed within five years of a previous conviction for violation of an order of protection and that the order of protection was issued after a hearing of which the person received actual notice and at which the person had an opportunity to participate.
In closing, the State again acknowledged that Standridge did not have notice of the hearing. The jury returned a verdict of guilty but were unable to reach a decision on Standridge’s sentence. The circuit court then imposed a sentence of fifty-four months’ imprisonment. The court also revoked Standridge’s probation. Standridge appealed both the conviction and the probation revocation. The court of appeals affirmed the circuit court’s decision to revoke Standridge’s probation. Now before this court is Standridge’s appeal from the conviction.
On appeal, Standridge raises five issues: (1) that there was insufficient evidence to support the conviction; (2) that the circuit court precluded him from putting on a defense; (3) that the circuit court erred by refusing to give his proffered jury instruction on section 5-53-134 and that the State’s instruction was an incorrect statement of the law; (4) that the circuit court erred in denying his motion to dismiss because the State’s amended information charged him with violation of section 9 — 15— 207 and not 5-53-134; (5) that the circuit court committed cumulative errors. This court, however, need not consider the merits of each argument on appeal because Standridge was charged and tried under section 9-15-207, a statute that does not describe a criminal offense. Thus, the circuit court lacked subject-matter | ^jurisdiction, and we reverse and dismiss.
On review, we consider issues of statutory interpretation de novo, and we construe a statute just as it reads, giving the words their ordinary and usually accepted meaning. State v. Thomas, 2014 Ark. 362, at 4, 439 S.W.3d 690, 692. In construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Id., 439 S.W.3d at 692. Statutes relating to the same subject must be construed together and in harmony. Id., 439 S.W.3d at 692.
In construing sections 5-53-134 and 9-15-207, we conclude that section 5-53-134 is the criminal statute under which the State should have charged Standridge to obtain a conviction for Class D felony violation of a protection order. Section 9-15-207 does not contain the elements of Class D felony violation of a protection order; rather, those elements are found in section 5-53-134. As required by section 5 — 53—134(b)(2)(B), to obtain a conviction for Class D felony violation of a protection order, the State must prove that the order of protection was issued after a hearing of which the person received actual notice and at which the person had an opportunity to participate. By contrast, section 9-15-207 provides that a law enforcement agency may enforce an order of protection, sets out what the notice should contain, and provides that jurisdiction’ for the “criminal offense” is with the circuit court. Rather than serving as a criminal offense, section 9-15-207 provides the mechanism by which a person can obtain injunctive and equitable relief for protection against domestic abuse. Thus, by charging Stand-ridge under section 9-15-207, the State charged Standridge | inunder a noncriminal statute.
As is evident from the information, the State’s remarks at trial, and the State’s jury instructions, the State pursued a course of charging and trying Standridge under section 9-15-207. In doing so, the State sought to avoid the burdens placed on it to prove, as required by section 5-53-134(b)(2)(B), that the order of protection was issued after a hearing at which the person received actual notice and at which the person had an opportunity to participate. Section 9-15-207, however, is not a criminal statute and does not contain the elements of Class D felony violation of a protection order.
A circuit court has subject-matter jurisdiction of all justiciable matters not otherwise assigned pursuant to the constitution. Ark. Const, amend. 80, § 6. Jurisdiction is the power of the court to hear and determine a cause, including the power to enforce its judgment; it is the power to hear and determine the subject matter in controversy between the parties. State v. Watson, 307 Ark. 333, 335, 820 S.W.2d 59, 60 (1991), overruled on other grounds by State v. D.S., 2011 Ark. 45, 378 S.W.3d 87. Because jurisdiction is the authority of a court to hear a case on its merits, lack of subject-matter jurisdiction is a defense that may be raised by this court on its own motion. D.S., 2011 Ark. 45, at 4, 378 S.W.3d at 89-90.
In White v. State, 260 Ark. 361, 366, 538 S.W.2d 550, 553 (1976), the challenge to the jurisdiction of the trial court, which we observed could be raised at any time, involved a defendant who was con-
victed of misdemeanor marijuana possession. This court reversed and dismissed after concluding that mere possession of marijuana was not a misdemeanor offense |nunder the criminal statutes enacted at that time. In interpreting the statute at issue there, the court noted that “the rule of law with respect to statutory construction of penal provisions is that nothing will be taken as intended which is not clearly expressed and all doubts must be resolved in favor of the accused.” Id. at 366, 538 S.W.2d at 553. In Holford v. State, 173 Ark. 989, 1000, 294 S.W. 33, 37 (1927), this court observed,
There is no better settled rule in criminal jurisprudence than that criminal statutes must be strictly construed and pursued. The courts cannot, and should not, by construction or intendment, create offenses under statutes which are not in express terms created by the Legislature. The courts cannot do so without trenching upon the exclusive functions of the Legislature.
In Holford, this court reversed and dismissed a conviction, concluding that while a criminal statute criminalized the manufacture, keeping, and setting up of a still, the statute did not criminalize the manufacturing, keeping, or setting up of a part of a still but which was not a still.
In Duncan v. Kirby, 228 Ark. 917, 920-21, 311 S.W.2d 157, 160 (1958), we held that the trial court lacked jurisdiction to try the defendant on the charge of disobeying a United States Army officer because there was no statute criminalizing such conduct. There, we stated,
We have no statute making it a crime or misdemeanor for the accused to do what he is charged with doing. The writ of prohibition lies where an inferior court is proceeding in a matter beyond its jurisdiction and where the remedy by appeal, though available, is inadequate. And where it appears that an inferior court is about to proceed in a matter over which it is entirely without jurisdiction under any state of facts which may be shown to exist, then the superior court exercising supervisory control over the inferior court may prevent such unauthorized proceedings by the issuance of a writ of prohibition.
Of course, if there is any question of fact upon which jurisdiction may turn, prohibition will not lie. But here, there is no conceivable finding of fact by which the | ^petitioner could be guilty. He has been found not guilty of disturbing the peace. The remaining charge is simple: That he refused to obey an order of a United States Army officer. There does not appear to be any way in which the charge could be amended or corrected so as to allege a criminal offense in this State. Assuming Lieutenant Tanner’s affidavit is true in every detail (except, of course, the disturbing the peace charge, which has been disposed of), still no offense is charged. It simply is not against the law in Arkansas to fail to obey an order of an officer of the United States Army, and it is conceded that Lieutenant Tanner was acting in the capacity of an officer of the United States Army at the time the order is alleged to have been given.
It is said ...: “A writ of prohibition will lie to restrain a criminal or quasi-criminal prosecution for an offense beyond the jurisdiction of the court.” ... If prohibition will be granted where a court is acting beyond its jurisdiction, how much more so the remedy should be allowed where no offense at all is charged. Our conclusion is that petitioner is not charged with an offense punishable under the laws of this State, and to force him to trial, thereby affording him only the remedy of appeal from a possible conviction, which would be invalid, would not leave him an adequate remedy, and prohibition should be granted.
(Internal citations omitted.)
White, Holford, and Duncan stand for the proposition that a circuit court does not have jurisdiction to try a defendant on a charge that is not a criminal offense and that any conviction obtained must be reversed and dismissed. Criminal statutes must be strictly construed and pursued; otherwise the court trenches upon the functions of the General Assembly. The General Assembly made it clear that section 9-15-207 does not provide for a criminal offense. Admittedly, and unlike White, Holford, and Duncan, there is in Arkansas a crime of Class D felony violation of a protection order. That criminal offense, however, and the elements the State must prove, are found, not in section 9-15-207, but instead in the criminal statute, section 5-53-134. Given the State’s citation to section 9-15-207 in the information, the State’s remarks at trial, and the State’s jury instructions, we cannot engage |13in the assumption that Standridge was charged and tried under section 5-53-134. The State instead tried Standridge under section 9-15-207, which, under the State’s theory, contained fewer criminal elements and provided for a Class D felony conviction. Even if the State had proved these fewer elements, however, the conduct would not be criminal under section 9-15-207, because that statute is not a criminal statute. In the sense that Stand-ridge’s charge and trial were not based on a criminal offense, White, Holford, and Duncan are on point. Thus, because Standridge was tried and convicted for committing acts that, under section 9-15-207, cannot ever constitute a Class D felony, the circuit court lacked subject-matter jurisdiction over the matter. Accordingly, we reverse and dismiss the case.
Reversed and dismissed.
Hannah, C.J., and Corbin and Danielson, JJ., dissent. | [
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PHILLIP T. WHITEAKER, Judge
|,Taira Simmering appeals a Saline County Circuit Court order dismissing her motion for change of custody, challenging (1) the trial court’s denial of her right to a hearing on the merits of the motion at the conclusion of an emergency hearing, (2) its failure to use the date of the last order of custody as the relevant date for change-of-custody purposes, and (3) its conclusion that there had not been a material change in circumstances. Because we find that the trial court improperly dismissed Tama’s motion without a hearing on the merits, we reverse and remand for a full hearing on her motion for a change of custody.
The parties, Tama and Tadd Simmering, have a short-term but active litigation history. They were divorced in July 2012. The divorce decree provided for joint custody of the parties’ only child, T.S., with Taira being the primary custodian. In May 2013, the trial court granted Tadd’s request for a change of custody. The order gave Tadd sole custody of T.S., set child support, and provided that Taira’s visitation would be at Tadd’s discretion.
|Jn July 2013, Taira filed a motion to modify visitation and child support. An agreed order was entered on October 21, 2013, modifying child support and providing for set visitation for Taira. Custody remained with Tadd.
Approximately one month later, Taira filed a “Verified Motion for Emergency Custody.” This verified pleading requested custody of the child temporarily based on allegations of an emergency. It also sought custody of the child permanently based on allegations of a material change of circumstances.
An emergency hearing was held on December 4, 2013. Because Taira had been unable to serve Tadd with the motion, Tadd was not present at the hearing. Taira presented evidence regarding the alleged emergency facts. Specifically, Taira presented evidence (1) that Tadd was suffering from anger issues and had accosted her at a local restaurant; (2) that in October 2013, Tadd was intoxicated and had physically battered Taira in front of the child; (3) that Tadd was facing criminal charges as a result of the attack; (4) that Tadd had not maintained stable housing •and was currently residing with a friend; (5) that Tadd had alcohol issues and had been arrested for DWI in May 2013 and was consuming alcohol while the child was present; and (6) that Tadd had been terminated from his employment and was currently unemployed. The trial court entered an emergency order granting custody to Taira. However, the court noted that it had a potential conflict and transferred the case to another division.
Another hearing on the emergency motion was held on December 18, 2013, in front of a different judge. Both parties were present and presented evidence solely on the issue of |3emergency custody. Taira reiterated the testimony and evidence presented at the previous emergency hearing. In addition to the previous evidence, she expounded upon Tadd’s alleged alcohol issues with testimony about another incident that occurred during the summer of 2013, and reported that the child had been injured after Tadd allowed him to ride on a four-wheeler unrestrained during the spring of 2013.
At the close of the evidence the trial court found that an emergency did not exist and dissolved the previous emergency order by the court. Instead of ending its order there, however, the court dismissed the entire motion over Taira’s objection, finding that a material change in circumstance had not occurred since the October 21, 2013 visitation order had been entered. Taira appeals this order.
Taira argues on appeal that the trial court erred in summarily dismissing her motion for change of custody without a full hearing. We agree. Taira filed a verified pleading seeking emergency relief pursuant to Rule 65 of the Arkansas Rules of Civil Procedure, and the court conducted hearings pursuant to that rule. In this type of request for emergency |4relief, temporary relief may be provided upon proof of immediate or irreparable harm without emergency intervention by the court. See Ark. R. Civ. P. 65; see also Ark.Code Ann. § 9-19-204 (Repl. 2009); 28 U.S.C.A. § 1738A(c)(2)(C); and Perez v. Tanner, 332 Ark. 356, 965 S.W.2d 90 (1998) (stating that a jurisdictional basis for emergency relief under the Uniform Child Custody Jurisdiction and Enforcement Act and the federal Parental Kidnapping Prevention Act is available only in extraordinary or extreme situations where the immediate health and welfare of the child is threatened). In order for Taira to prevail in her request for emergency relief, the standard is high: immediate or irreparable harm. This is a wholly different type of proof than what is necessary for purposes of determining whether a permanent modification of custody is justified. A non-temporary change-of-custody order need not be made upon a showing of imminent harm but only upon a showing of a material change in circumstances. See Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234. Thus, there could conceivably be evidence that might not rise to a level sufficient to prove an emergency, but might still be sufficient to support a finding of a material change of circumstances.
Here, it is clear from the record that the trial court received evidence only on the emergency motion, and Taira was limited to presenting evidence as to those facts constituting an emergency. Yet, the trial court not only denied her request for an emergency temporary order, but also summarily denied her request for a permanent order. As a result, she was denied the opportunity to present evidence on her alternative request for a permanent change |sm custody. This was error, and we must reverse and remand to allow Taira to present her evidence on her motion to modify custody.
Because the case is remanded for further evidentiary consideration, we need not decide at this time whether the evidence was sufficient to support a material change of circumstances. However, because the issue will arise on remand, we note (and the parties agree) that the trial court incorrectly utilized the date of the most recent visitation order rather than the date of the last custody order to determine whether a material change in circumstances existed to support modification. A party seeking to modify custody must prove that a material change of circumstances has occurred since the last order of custody or that material facts existed at the time of the decree that were unknown to the court. Lloyd v. Butts, 843 Ark. 620, 37 S.W.3d 603 (2001) (emphasis added). The material change in circumstances that must be proved in order to modify custody does not have to occur from the date of the last hearing in the case; rather, the changes must occur from the time of the last custody order. See Gerot v. Gerot, 76 Ark. App. 138, 61 S.W.3d 890 (2001); Bollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).
Reversed and remanded.
Gladwin, C.J., and Hixson, J., agree.
. The limited nature of the hearing is revealed several times in the record. At one point, the court asked, "What’s happened since October 10 that would cause there to be an emergency.” Then, in ruling on die relevance of certain evidence, the court asked "What’s the relevance? ... For an emergency.” Then during the direct examination of Taira's mother, counsel for Tadd objected stating, "I'm going to object to anything that's not relevant to the emergency motion filed against my client. This is not a regular custody case, and I just think that this testimony is irrelevant.” The court responded, "It's not irrelevant, but you can keep it shorter. It's relevant because, if I did find there was an emergency, what is appropriate placement, but let’s keep it tight.”
. In her verified motion, Taira alleged that Tadd was allowing women to spend the night while the child was present, and that the child was primarily residing with relatives since June 2013. No evidence of these allegations was received at either emergency hearing. | [
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] |
LARRY D. VAUGHT, Judge
| Appellant John Walls, Jr., appeals two decisions rendered by the Circuit Court of Craighead County in his divorce case against his former wife, appellee Dorothy Jean Walls: (1) the court’s denial of his motion to enforce a Marital Dissolution Agreement (“MDA”), and (2) the manner in which the court divided the parties’ bank accounts. We affirm.
The parties were married on February 14, 2004. While living in Memphis, Tennessee, in 2009, the parties separated. On March 2, 2009, John filed for divorce in Tennessee. After the divorce action was commenced, and in anticipation of the divorce, the parties entered into the MDA, which provided for the distribution of their assets. The MDA bears the style and case number of the Tennessee divorce case, and there is no dispute that the parties entered the MDA in anticipation of what they believed to be an imminent divorce. However, in December 2009, the parties reconciled and ceased prosecuting their divorce action. John testified that, after the reconciliation, he continued to perform all of his obligations under the MDA, including paying 12Dorothy money as required by the MDA. The parties separated again in 2011, although Dorothy claims they continued to see each other. John voluntarily nonsuited the Tennessee case in 2012.
In September of 2012, Dorothy filed a suit for separate maintenance in Arkansas, where she resided. John counterclaimed for absolute divorce. In November 2013, the trial court held a two-day bench trial regarding the distribution of the couple’s assets. John argued that the 2009 MDA was still a valid and binding contract and should control the distribution of assets in the current divorce. The trial court disagreed, finding that the contract was entered into in anticipation of the Tennessee divorce and became a nullity when the parties reconciled and dismissed that divorce action. The trial court then divided the couple’s assets, treating only one of the parties’ bank accounts as a marital asset (the joint account used by both parties, which John claimed as his own nonmarital property). The court did not divide Dorothy’s two bank accounts, which were in her name only and under her sole control, because it did not deem them to be marital property. The court equally divided all property that it deemed to be marital property. This appeal followed.
“With respect to the division of property in a divorce case, the appellate court reviews the trial court’s findings of fact and affirms them unless they are clearly erroneous.” Coatney v. Coatney, 2010 Ark. App. 262, at 7, 377 S.W.3d 381, 385 (citing Rasberry v. Rasberry, 2009 Ark. App. 594, 331 S.W.3d 231). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Id. (citing Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007)). “We give due deference to the | atrial court’s superior position to determine the credibility of witnesses and the weight to be given their testimony.” Id.
We explained in Coatney that Arkansas Code Annotated section 9-12-315(a) mandates that all marital property is to be divided equally between the parties unless the trial court finds that such a distribution would be inequitable. 2010 Ark. App. 262, at 5-6, 377 S.W.3d at 384. In that event, the court is to make some other division that the court deems equitable, taking into consideration a number of factors: the length of the marriage; age, health, and station in life of the parties; occupation of the parties; amount and sources of income; vocational skills; em-ployability; estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; contribution of each party in acquisition, preservation, and appreciation of marital property, including services as a homemaker; and the federal income tax consequences of the court’s division of property. Ark.Code Ann. § 9-12-315(a) (Repl. 2009). “We have consistently interpreted section 9-12-315(a) as granting the trial court broad powers in distributing both nonmarital and marital property.” Farrell v. Farrell, 365 Ark. 465, 473, 231 S.W.3d 619, 625 (2006). The overriding purpose of section 9-12-315(a) is to enable the court to make a division of property that is fair and equitable under the specific circumstances of each case. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001). The statute does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Copeland v. Copeland, 84 Ark. App. 303, 139 S.W.3d 145 (2003).
John’s first argument on appeal is that the trial court erred by not enforcing the provisions of the MDA, which he argues is a valid, enforceable, and binding contract. The trial |4court rejected this argument, ruling that the MDA was a nullity due to the substantial change in circumstances since it was executed. Arkansas law explicitly permits the trial court to make such a determination. It is well-settled law that, although divorcing spouses may enter into property settlement agreements, the court is not bound to accept or enforce them, even in the absence of fraud or coercion. In Rutherford v. Rutherford, 81 Ark. App. 122, 98 S.W.3d 842 (2003), we directly addressed this issue, stating that Arkansas Code Annotated section 9-12-313 does not stand for the proposition that a court must enforce a valid agreement of the parties. Instead, the statute “provides in part that a court ‘may enforce the performance of a written agreement between husband and wife made and entered into in contemplation of either separation or divorce and decrees or orders for alimony and maintenance by sequestration of the property of either party.’ ” Rutherford, 81 Ark. App. at 127-28, 98 S.W.3d at 845 (emphasis added). The Arkansas Supreme Court has explained that trial courts are not bound by the parties’ agreement in a divorce action. In Pryor v. Pryor, 88 Ark. 302, 308, 114 S.W. 700, 702 (1908), the supreme court said that a trial court “is not, in the first instance, bound by the agreement of the parties concerning the amount of alimony to be allowed to the wife.” The court explained that “this is so because the court is moved to action by principles of justice and equity, and is not bound to follow the agreement of the parties against what appears to be the justice of the case.” Id. at 308-09, 114 S.W. 700, 702. In Bachus v. Bachus, 216 Ark. 802, 803, 227 S.W.2d 439, 440 (1950), the court said,
The parties to a divorce action may agree upon the alimony or maintenance to be paid. Although the court is not bound by the litigants’ contract, nevertheless if the court approves the settlement and awards support money upon that basis there is then no power to modify the decree at a later date.
1 r,(Emphasis added.) In Rutherford, this court reiterated that, pursuant to the permissive language of section 9-12-313 and the relevant case law, trial courts may use their discretion to disregard the parties’ agreement if equity so demands.
In this case, the trial court found that, due to the subsequent reconciliation, passage of time, and later-acquired property, equity demanded that the MDA be deemed null and void. However, the court specifically stated that it would take into account all payments and performance made pursuant to the terms of the MDA when determining the final distribution of assets, and John has not argued that he was not given proper credit for the payments he made pursuant to the agreement. We have no evidence indicating that the trial court’s ruling was clearly erroneous; it was well within the court’s discretion to reject the MDA due to changed circumstances. We affirm the court’s ruling on this point.
John next argues that the trial court erred in dividing the parties’ bank accounts by providing Dorothy more than half of the assets in the accounts and basing the account valuation on a date other than the date of the divorce decree. John failed to preserve any objection to the valuation date, so we cannot address that issue. As to the division of the accounts, we see no error. Arkansas law creates a presumption that property placed in both spouses’ names' is held in tenancy by the entirety and is marital property. McKay v. McKay, 340 Ark. 171, 177, 8 S.W.3d 525, 529 (2000). John claimed an account at First National Bank as nonmarital property, arguing that some of the deposits to the account originated in nonmarital sources. However, the account bore both parties’ names, and Dorothy had also made deposits to, and withdrawals from, the account. The trial court treated this account as marital property and awarded Dorothy | fi$44,166.71, which was half of the total amount in the account. By contrast, the accounts Dorothy claimed as her nonmarital property were held in her name only, and she alone exercised control over them. The court deemed those accounts nonmarital property and did not divide them. Given the court’s overall property distribution, we find no clear error. The court’s decision complies with the statutory requirement that all marital property be equally divided. Ark. Code Ann. § 9-12-315(a).
Affirmed.
Harrison and Brown, JJ., agree. | [
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JOHN MAUZY PITTMAN, Judge.
| )This dispute involves two separate parcels of land in Searcy County. Appellants Kevin Horton and Laurie Horton claimed an easement along a path over land belonging to appellees Brent Taylor and Robin Taylor. The parties’ tracts are contiguous and were once owned by the Mason family. The circuit court denied that claim. Appellants also claimed adverse possession of land lying north of a fence that crosses a pond on a separate five-acre tract owned by appellees Jim Taylor and Duford Taylor, who, along with Rosalee Taylor and Corrine Taylor, sought to quiet title. The five-acre tract, which is surrounded by appellants’ property on the west, north, and east, has no fence across its northern boundary. Although the circuit court denied appellants’ adverse-possession claim, it granted them an easement across this property. We affirm the circuit court’s orders.
The path along which appellants claimed an easement begins where a driveway branches off a county road and continues across Brent’s and Robin’s property to a fence with Ra gate at the boundary line. The circuit court first heard the easement claims at a hearing at which Kevin, Jimmy Hensley (who delivered mail to the Masons), Anthony Redman (Kevin’s cousin), Ronnie Harness (a friend of Kevin), Jackie Sanders (an old friend of the Horton family), Rita Brown (Stella Mason’s niece), Donald Brown (Rita Brown’s husband), Jim Taylor, Russell Podgorney (a survey- or), Duford, Jeff Magness (who performed dozing work for the Hortons), Leroy Mclnturff (who helped clear the Mason property in 1932), and Brent testified. After the testimony was concluded, the sheriff drove the trial judge to view the possible means of access to appellants’ property. The trial judge found that there was an alternative way for appellants to access their property and denied their claim for an easement. Appellants took an appeal to this court, which dismissed for lack of a final order. See Horton v. Taylor, 2010 Ark. App. 824, 2010 WL 4983142. The circuit court then held a trial on the remaining claims. Duford, Jim, Alvin Bolen (with the sheriffs office), Brent, Kevin, James Carter (who was acquainted with appellants’ predecessor), Ronnie, and Jimmy Hensley testified. The trial court denied appellants’ claim for adverse possession, quieted title to the entire five acres in appellees, and granted appellants an easement. Appellants then pursued this appeal.
Appellants argue that the trial court erred in rejecting their claims for an easement by prescription, implication, and necessity, and for adverse possession. The only question on appeal is whether the trial court’s findings are clearly erroneous. We review equity cases de novo on the record, and will not reverse a finding of fact by the trial court unless it is clearly erroneous. Baker v. Bolin, 2012 Ark. App. 141, 2012 WL 474527. Disputed facts and ^determinations of witness credibility are within the province of the fact-finder and, in reviewing a trial court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id.
In their first point, appellants contend that the trial court erred in rejecting their claim for a prescriptive easement, on which it made the following findings:
Prescriptive Easement: The Plaintiff failed to meet its burden to prove a prescriptive easement. There was insufficient evidence that the use was open and hostile. The alleged easement begins with what was described as a circular drive where at the back end to the left side of the drive was a straight path that one could follow to the Plaintiffs property. There was evidence that a school bus accessed the small circular drive along with the mailman who delivered mail. This is insufficient to prove the easement the Plaintiff is claiming. First, the mail and school use of the circular area path was for the benefit of the Defendant’s predecessor in title. There was no evidence that the mail or school routes were 1) for the benefit of plaintiff or his predecessors in title or 2) that the mail or school route went the full length of the alleged easement to the Plaintiffs property. Rather, they accessed perhaps 5% of what Plaintiff alleges is an easement. Plaintiff did present evidence that the easement was utilized for the occasional hunter, his operation of a sawmill from approximately 2000-2003, and he has used it to access his property since 2003 until sometime in the last 2 years when a gate was put up. The Defendant, Duford Taylor, testified he permitted the prior use by the Plaintiff for the sawmill and the occasional hunter.
Permissive use can ripen into a prescriptive easement when the use is adverse to the landowner’s interest for the statutory period of time. While the sawmill use could be considered adverse to the Defendant’s interest, the use was only for a 3-year period. The Plaintiff simply could not prove the use was sufficiently hostile, notorious, and open by a preponderance of the evidence.
A person not in fee possession of the land may obtain a prescriptive easement by operation of law in a manner similar to adverse possession. Roberts v. Jackson, 2011 Ark. App. 335, 384 S.W.3d 28. The statutory period of seven years for adverse possession applies to Uprescriptive easements. Id. In Arkansas, it is generally required that one asserting an easement by prescription show by a preponderance of the evidence that one’s use has been adverse to the true owner and under a claim of right for the statutory period. Id. Overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim are being exerted. Id. Mere permissive use of an easement cannot ripen into an adverse claim without clear action, which places the owner on notice. Id. Some circumstance or act in addition to, or in connection with, the use which indicates that the use was not merely permissive is required to establish a right by prescription. Id. The determination of whether a use is adverse or permissive is a factual question. Id. The plaintiff bears the burden of showing by a preponderance of the evidence that there has been adverse, not permissive, use of the land in question. Dohle v. Duffield, 2012 Ark. App. 217, 396 S.W.3d 780; Roberts, supra. Unlike adverse possession, prescriptive use need not be exclusive. Johnson v. Jones, 64 Ark.App. 20, 977 S.W.2d 903 (1998). Former decisions are of little value on the factual issue of whether a particular use is permissive or adverse. Id.
The evidence supports the trial court’s findings regarding the prescriptive-easement claim. From approximately 2000 to 2003, Kevin operated a sawmill on his property, which he accessed by using the path through the Masons’ property without objection. He testified that he made improvements on the path, which was grown up with trees and brush, while he was operating the sawmill. According to Kevin, approximately three to five vehicles a day, plus eighteen-wheelers, used this path for about three years. Anthony testified that, with no one’s objection, he had operated the sawmill and had helped open the road up so that big | Strucks could haul lumber along it. Ronnie testified that he had used this path to visit Kevin at the sawmill several times a week. Appellants, however, produced scant evidence of any prescriptive use of the road in other years, except for its occasional use by hunters. We therefore cannot say that the circuit court clearly erred in ruling that they did not establish prescriptive use of the property for a period of seven consecutive years, and affirm on this issue.
Appellants next challenge the trial court’s ruling regarding an easement by implication. The court found:
An Easement by Implication arises where, during unity of title, a landowner imposes an apparently permanent and obvious servitude on part of his property in favor of another part and where, at the time of a later severance of ownership, the servitude is in use and is reasonably necessary for the enjoyment of that part of the property favored by the servitude. There was not sufficient evidence presented that there was an obvious servitude prior to the severance of ownership.
An easement by implication arises where, during unity of title, a landowner imposes an apparently permanent and obvious servitude on part of his property in favor of another part and where, at the time of a later severance of ownership, the servitude is in use and is reasonably necessary for the enjoyment of that part of the property favored by the servitude. Berry v. Moon, 2011 Ark. App. 781, 387 S.W.3d 306. In order for such an easement to be established, it must appear not only that the easement is obvious and apparently permanent but also that it is reasonably necessary for the enjoyment of the property. Id. The term “necessary” in this context means that there could be no other reasonable mode of enjoying the dominant tenement without the easement. Id. The necessity for the easement must have | r,existed at the time of the severance. Id. Further, the apparently permanent nature of the easement must be in existence at the time of common ownership. Id.
The trial court found that there was not sufficient evidence of an obvious servitude prior to the severance of ownership, and we cannot say that this finding was clearly erroneous. Although there was testimony that the Masons used this path for access to their farm land, appellants offered no evidence that, at the time of severance, this path was necessary for the use of that land. Also, appellees offered evidence that at the time of trial, usage of this path was not reasonably necessary, and it was reasonable to infer that this was true at the time of severance. We affirm on this point.
In their third point, appellants assert that the trial court’s finding that they failed to establish an easement by necessity is clearly erroneous. The trial court explained:
An Easement by Necessity is similar to the above in requiring Plaintiff to prove 1) that title to the two tracts in question were once held by one person; 2) that unity of title was severed by conveyance of one of the tracts; and 3) that the easement is necessary in order for the owner of the dominant tenement to use his land, with the necessity existing both at the time of severance of title and at the time of exercise of the easement. There was no question in this case that there was unity in title and that unity was severed upon conveyance by the original grantee.
The main question of fact in this case was whether an easement is necessary for the Plaintiffs use of his property. Whether an easement is necessary is a question of fact. The Supreme Court has held that “necessary” means there could be no other reasonable mode of enjoying the dominant tenement without the easement. The Plaintiff contended that he had no other means to access his property without going an additional 5-6 miles and he would be unable to take most vehicles across. He also contended that he would have to cross creeks and would be unable in heavy rain to access his property at all. The Defendant contended that there was alternative suitable path for Plaintiff to access his property. At the end of trial, this Court through agreement of the parties went to observe both the easement and the alternative 17path. The Court was in a 4 wheel drive truck and able to completely access and follow the alternative path. There was one very small creek that was easily passable. The alternative path was substantially longer and had one steep hill. The Court finds that neither the easement nor the alternative path would be passable without a 4-wheel-drive vehicle. The Court does find there is an alternative means for Plaintiff to access his property. The Supreme Court has held that the alternative mode of access does not have to be the preferred or even the most convenient mode of access.
We agree with the trial court that the possibility of another, although inconvenient, route to appellants’ property precluded the establishment of an easement by necessity. To establish an easement by necessity, a party must prove (1) that, at one time, one person held title to the tracts in question; (2) that unity of title was severed by conveyance of one of the tracts; and (3) that the easement is necessary in order for the owner of the dominant tenement to use his land, with the necessity existing both at the time of the severance of title and at the time the easement is exercised. Berry, supra. The degree of necessity must be more than mere convenience. Id. Whether something is reasonable is a question of fact. See Ford Motor Credit Co. v. Ellison, 384 Ark. 357, 974 S.W.2d 464 (1998); Watkins v. Arkansas Elder Outreach of Little Rock, Inc., 2012 Ark. App. 301, 420 S.W.3d 477; Crum v. Craig, 2010 Ark. App. 531, 379 S.W.3d 71; Mountain Pure, L.L.C. v. Affiliated Foods, Sw., Inc., 96 Ark.App. 346, 241 S.W.3d 774 (2006).
Kevin testified that there would be no way that he could transport cattle along the alternative path, which has steep terrain. He stated that he would have to use an all-terrain or a heavy-duty four- wheel-drive vehicle, and that he could not use that path in bad weather. Anthony supported this testimony. Ronnie also testified that one could use the alternative route only on a four-wheeler. Leroy, who was familiar with the alternative route to ^^appellants’ property, described it as “a pretty rough way to go....” On the other hand, Duford testified that there was an alternative route to appellants’ property. We also note that Kevin testified extensively about the bad condition of the path over which appellants seek an easement; in fact, at the time of the hearing, the evidence indicated that there was not a significant difference between the condition of that path and the alternative route. In light of this evidence and the fact that the trial judge personally viewed the property, we cannot say that this ruling was clearly erroneous.
In their last point, appellants argue (1) that the trial court’s finding that they failed to prove adverse possession was clearly erroneous; and (2) that they established a boundary by acquiescence along the fence line. Because the trial court did not rule on acquiescence, we need not address it. Sutton v. Gardner, 2011 Ark. App. 737, 387 S.W.3d 185. The trial court made the following findings as to appellants’ claim for adverse possession:
4. The Court finds that Counter-Plaintiffs Exhibit 3, which is a survey of the said five acres prepared for Duford Taylor and dated April 21, 2006, shows that there was not a fence on the north boundary line and that only part of the fence was on the east boundary line of the said five acres.
5. The Court finds the Hortons’ and their predecessors’ use of the three (3) acres, more or less, in the W 1/2 SW 1/4 SW 1/4 SE 1/4 of Section 10, Township 15 North, Range 17 West which lies north of the cross fence across the pond is insufficient to take from the Taylors ownership of the property. The Hor-tons have failed to meet their burden to show that their use of the said property was adverse.
6. The Court however finds that a road easement exists over and across the W 1/2 SW 1/4 SW 1/4 SE 1/4 of Section 10, Township 15 North, Range 17 West on the said three (3) acres which lies north of the cross fence across the pond as evidenced by testimony and by a survey prepared for the Hortons which was introduced into evidence and marked as Plaintiffs Exhibit No. 6 at trial. The road easement shall be a 16 feet easement over and across |nthe said three (3) acres and it shall follow the center line of the road and connect the Horton property on the east side with the Horton property on the west side as shown in the Horton survey.
7. The Taylors are directed and ordered to install and maintain a cattle guard on the east and west boundary line of the said five-acre tract to allow ingress and egress across the road easement. The cattle guards shall be at least twelve (12) feet wide. In the event the Taylors construct a fence on each side of the 16-foot road easement then the road easement shall be increased to 26 feet.
Adverse possession is governed by both common and statutory law. To prove the common-law elements of adverse possession, a claimant must show that he has been in possession of the property continuously for more than seven years and that his possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Sutton, supra. It is ordinarily sufficient proof of adverse possession that the claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. Id. Whether possession is adverse to the true owner is a question of fact. Id. In 1995, the General Assembly added, as a requirement for proof of adverse possession, that the claimant prove color of title and payment of taxes on the subject property or contiguous property for seven years. See Ark. Code Ann. § 18-11-106 (Supp.2011). However, if the claimant’s rights to the disputed property vested before 1995, he need not comply with the 1995 statutory change. Sutton, supra.
Kevin testified that he owned and had paid taxes on land contiguous to the property in dispute and that he had been in possession of all the land lying north of the fence through the pond. He also said that he had bush-hogged, fertilized, cleared, and maintained that property, and that he had spent $3500 cleaning out the pond with Duford’s and Jim’s 110knowledge. He stated that his family had also maintained and used this property before he had acquired it. Ronnie supported this testimony. Duford, however, testified that his family had acquired the larger tract that includes the disputed property in 1918. He stated that the pond was originally nothing more than an old slough full of cattails and brush and that the fence through it was intended only to keep cattle from going into the field where his grandfather farmed, not as a boundary line. He also testified that he had given appellants permission to use the property on the other side of the fence so that their cattle would have access to water. Jim also testified that the fence was not intended to denote the boundary line.
The evidence supported appellees’ position that appellants’ and their predecessors’ use of the property was permissive before the survey was completed in 2006; until the survey was done, there is scant evidence that appellees received notice of any adverse use. Like the other issues, this factual determination depended heavily upon the trial court’s opportunity to observe the witnesses and assess their credibility. The trial court’s finding that appellants failed to establish adverse possession was not clearly erroneous.
Affirmed.
GRUBER and HOOFMAN, JJ., agree. | [
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CLIFF HOOFMAN, Judge.
| Appellant Jennifer Favano appeals from the trial court’s decision granting appellee Sheila Hill Elliott’s petition for grandparent visitation. On appeal, Favano argues that the trial court erred (1) by ordering visitation with Elliott where the grandmother had acted in ways that were likely to harm the child, M.F., and (2) in failing to rule on her motion for a new trial, thus denying it, where the motion included expert testimony that visitation with Elliott would harm M.F. We agree that the trial court erred by granting Elliott’s petition for visitation because there was insufficient evidence presented to show that the loss of the relationship would likely cause harm to M.F.; therefore, we reverse based on the first point on appeal.
M.F.’s mother and father, Favano and Kyle Hill, were married in November 2001, and M.F. was born in May 2002. The parents divorced in July 2003, with Favano receiving custody of M.F. and Kyle receiving visitation. Favano remarried in 2005, and Kyle died in |?July 2008. In May 2010, after Favano had cut off Elliott’s visitation with M.F. in February 2010 due to allegations of bad judgment, Elliott filed a petition to establish grandparent’s rights. A hearing was held on the petition in July 2011.
At the hearing, Favano testified that in addition to nine-year-old M.F., she also has two children with her current husband, Brandon Favano. Brandon had recently filed a petition for stepparent adoption of M.F., which was granted. Favano stated that after M.F. was born in 2002, she was employed full-time and her mother kept M.F. during the day on Tuesdays through Fridays, while Elliott watched her on Mondays. During Favano and Kyle’s divorce proceedings in 2003, Elliott was appointed as the supervisor of Kyle’s visitation. In addition, Favano testified that, when Kyle was on active duty in Iraq, Elliott would sometimes exercise Kyle’s alternate-weekend visitation rights and would keep M.F. from Friday through Monday on those occasions. Favano stated that M.F. was between one and three years old during that time. According to Favano, Elliott regularly exercised Kyle’s visitation for approximately one year after the divorce, but in 2004, Elliott told Favano that her boyfriend was smoking pot in the house while M.F. was present. Favano limited Elliott’s visitation after that point and testified that Elliott only visited with M.F. on six or eight occasions, mainly on major holidays, when M.F. was between three and five years old.
After Kyle returned from Iraq, he became ill and died in July 2008. Favano testified that M.F. had no contact at all with her father or his family during the year before he died because neither Kyle nor his family initiated contact. Favano testified that she did not let M.F. attend Kyle’s memorial service because she did not feel it was appropriate for a six year Isold who had not seen her father in over a year. She did, however, bring M.F. to visit with Kyle’s extended family shortly after the funeral. Subsequent to Kyle’s death, Favano stated that Elliott requested to see M.F. on approximately six occasions from July 2008 until February 2010. Favano stated that she was present during most of these visitations and that she never allowed M.F. to stay overnight with Elliott after Kyle’s death, although Elliott had requested it. In February 2010, Elliott called Favano to request another visit with M.F. and became upset on the phone, talking about how much she missed Kyle. According to Favano, during this conversation, Elliott related to her that she had let M.F. read a letter that Elliott had written, blaming Kyle’s doctor for his death. Fa-vano stated that she was shocked at this and discontinued visitation. Several months later, in November 2010, Elliott filed her petition for grandparent visitation. Favano stated that Elliott had contacted her since she filed the petition, telling her that she was sorry and requesting to see M.F., but Favano had denied her requests.
Favano testified that she considered M.F. to be a part of Kyle’s family and that she had tried to do the right thing and rebuild M.F.’s relationship with Elliott after Kyle’s death. She stated that Elliott loves M.F. and that she had seen her show physical affection to the child. Although Favano stated that she believed it was in M.F.’s best interest to have a relationship with Elliott, she also stated that she did not think it was in M.F.’s best interest to have court-ordered visitation due to Elliott’s history of poor judgment. She stated that it was her duty as a parent to protect M.F. and that she would allow visitation with Elliott in the future if she were to exercise good judgment and if M.F. desired to have visitation. While Favano |4testified that she believed that M.F. loves Elliott, she stated that she did not think M.F. would suffer harm if Elliott were not in her life. She stated that M.F. would suffer harm, however, if Elliott were allowed to come “in and out of her life,” as her father had done. Favano further expressed concern over a recent hateful email from M.F.’s paternal aunt, Kathleen Hill, and she stated that Hill had also flipped her off prior to the hearing that day.
Kathleen Hill, M.F.’s aunt, testified that she had a close relationship with M.F. and that she used to see her frequently when her mother kept her when she was between one and three years old. Hill stated that she moved back to Arkansas from California after her brother, Kyle, died and that she attempted to keep an ongoing relationship with Favano so that she could visit with M.F. According to Hill, Favano would only respond to her texts and phone calls approximately thirty percent of the time, and she was only occasionally allowed to visit with M.F. Hill stated that M.F. has a loving and affectionate relationship with Elliott and that their extended family is very close. She admitted writing the hateful email to Favano but denied directing an obscene gesture toward her at the hearing.
Dennis Elliott, Sheila’s husband, testified that he supported his wife’s efforts to receive visitation with M.F. and that they have a very close-knit family. He denied that he had ever smoked pot in the house and claimed that he had passed previous drug tests. He stated that he had no concerns for M.F.’s welfare, safety, or happiness in their home.
Sheila Elliott testified that she kept M.F. every weekend for three years when Kyle was in Iraq. She stated that she loves M.F. and that M.F. reciprocates her displays of affection. According to Elliott, Favano had not let her keep M.F. overnight since Kyle died |fiin 2008, and she had not seen the child since she filed the petition for visitation. In the two years prior to when she filed the petition, Elliott testified that she saw M.F. approximately ten or twelve times. She indicated that Favano would only occasionally respond to her requests for visits and that she would usually say no. Elliott stated that she tried not to be too pushy -with Favano because she did not want her to take away all of her visitation. On M.F.’s last three birthdays, Elliott testified that Favano declined her requests to see the child and that she had to drop off the presents at the doorstep. Elliott denied letting M.F. read the letter that blamed Kyle’s doctor for his death, claiming that she would never do that, although she stated that it was possible that the child had found the letter in the backseat of her car and read it on her own. According to Elliott, she has a close relationship with M.F. and believes it would be in the child’s best interest to have a relationship with her father’s family. She testified that M.F. would have an emotional void without this relationship. Although Favano had not been cooperative with Elliott regarding visitation with M.F. in the past, Elliott stated that she does get along well with Favano and that the rest of her family does as well.
Janice Hill, Sheila Elliott’s mother, testified that she lives in California but that she had contact with M.F. when she returned to Arkansas for visits. In the past four or five years, Janice stated that she had seen M.F. ten or twelve times. According to Janice, M.F. loves her grandmother and sometimes does not want to return home after her visits. She could think of no reason why the child should not be permitted to visit with Elliott. Although she believed that Favano was a good parent, Janice stated that Favano’s decision to prohibit | ¿visitation was emotionally harmful to M.F. While Janice agreed that Elliott’s contact with M.F. had been sporadic, she testified that this was due to Favano, not Elliott.
For the respondents, Patricia Dell, Fa-vano’s mother, testified. She denied that Elliott kept M.F. every weekend following her parent’s divorce, stating that Elliott had her on weekends only when she chose to exercise Kyle’s visitation rights. She also testified that she did not know of any contact that Elliott had with M.F. in the year before Kyle’s death.
Favano was then recalled to the stand. She reiterated that court-ordered visitation was not in M.F.’s best interest and stated that there was no evidence that M.F. was being harmed from the recent lack of contact with Elliott and her family. Favano felt that the inconsistency of Elliott’s contact with M.F. in the past was actually more harmful to her. She testified that if M.F. asked to see her father’s extended family in the future, then she would not deny visitation.
Brandon Favano, M.F.’s adoptive father, testified that he agreed with his wife that it was not in M.F.’s best interest to have court-ordered visitation and that his wife would absolutely do the right thing if M.F. were to desire contact with Elliott in the future. When he and M.F. ran into Elliott at the mall during Christmas, Brandon stated that M.F. acted “standoffish” and reserved because she had not seen Elliott in a long time. According to Brandon, M.F. did not currently have any interest in visiting Elliott, and after Kyle passed away, she asked if she had to visit with her anymore. He testified that he had not discussed the current court proceedings with M.F. He also disagreed with his wife that it was in M.F.’s best interest to have a relationship with Elliott and her extended family, due to the lack of |7stability and previous inappropriate behavior on their part.
Following the hearing, the trial court ruled that Elliott had met her burden to prove that court-ordered visitation was in M.F.’s best interest and that a significant relationship had been established between them. The court entered an order on August 8, 2011, allowing visitation on one weekend a month, as well as summer and holiday visitation.
On August 17, 2011, Favano filed a motion for new trial, for a stay of visitation order, and for an expedited hearing. Fa-vano alleged that since the hearing, she had informed M.F. that she was required to have weekend visits with Elliott and that M.F. had a significant change in her attitude and demeanor. Favano took her to three visits with a counselor and attached the counselor’s affidavit to her motion. This affidavit stated that M.F. did not remember her father, Kyle, and considered Brandon to be her father; that she did remember visiting Elliott; that Elliott would become angry at her if she did not call her “grandma” or if she called Brandon “dad”; that Elliott was impatient and would yell at her; that Elliott would constantly talk about Kyle to her and show her pictures, and would become angry if she did not share her interest in him; that she does not want to visit with Elliott because she is like a stranger to her; and that she especially does not want to spend an entire weekend with Elliott because she will feel pressured and uncomfortable. The counselor stated that there did not seem to be a bond between Elliott and M.F. and that court-ordered weekend visitation would cause emotional and psychological stress to the child. Favano’s motion for new trial was deemed denied after thirty days, and Favano filed a timely notice of appeal from this denial, as well as from the entry of the visitation order.
|sThe main consideration in making judicial determinations concerning visitation is the best interest of the child, and we will not reverse a finding by a circuit court in an equity case unless it is clearly erroneous. In re Adoption of J.P., 2011 Ark. 535, 385 S.W.3d 266. A finding of fact is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Id. We also give due deference to the superior position of the trial court to view and judge the credibility of the witnesses, and this deference is even greater in cases involving child custody or visitation, as a heavier burden is placed on the trial court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Bethany v. Jones, 2011 Ark. 67, 378 S.W.3d 731.
According to the relevant provisions of Ark.Code Ann. § 9-13-103 (Repl.2009), once a grandparent petitions the trial court for reasonable visitation with his or her grandchild,
(c)(1) There is a rebuttable presumption that a custodian’s decision denying or limiting visitation to the petitioner is in the best interest of the child.
(2) To rebut the presumption, the petitioner must prove by a preponderance of the evidence the following:
(A) The petitioner has established a significant and viable relationship with the child for whom he or she is requesting visitation; and
(B) Visitation with the petitioner is in the best interest of the child.
(d) To establish a significant and viable relationship with the child, the petitioner must prove by a preponderance of the evidence the following:
(1)(A) The child resided with the petitioner for at least six (6) consecutive months with or without the current custodian present;
(B) The petitioner was the caregiver to the child on a regular basis for at least six (6) consecutive months; or
| fl(C) The petitioner had frequent or regular contact with the child for at least twelve
(12) consecutive months; or
(2) Any other facts that establish that the loss of the relationship between the petitioner and the child is likely to harm the child.
(e)To establish that visitation with the petitioner is in the best interest of the child, the petitioner must prove by a preponderance of the evidence the following:
(1) The petitioner has the capacity to give the child love, affection, and guidance;
(2) The loss of the relationship between the petitioner and the child is likely to harm the child; and
(3) The petitioner is willing to cooperate with the custodian if visitation with the child is allowed.
This statute is strictly construed, as it is in derogation of, or at variance with, common law. Oldham v. Morgan, 372 Ark. 159, 271 S.W.3d 507 (2008).
Favano first argues that the trial court’s order granting Elliott visitation is clearly erroneous because there was insufficient proof that Elliott established a significant and viable relationship with M.F. However, the undisputed evidence showed that Elliott had regular contact with M.F. from the time she was approximately eight months old until she was between three and four years old. While there was some dispute as to how often Elliott exercised Kyle’s visitation during this period of time, she did regularly care for the child for several days at a time for more than twelve months. This satisfies the statutory requirement that a significant and via ble relationship between the grandparent and grandchild be shown. Ark.Code Ann. § 9 — 13—103(d)(1)(C).
We do, however, find merit to Fa-vano’s contention that the trial court clearly erred in finding that Elliott had met her burden of showing that visitation was in M.F.’s best interest. In finding that this statutory requirement had been established, the trial court relied solely on Fava-no’s own testimony that she believed a relationship with Kyle’s family was in | iqM.F.’s best interest. Specifically, the trial court stated, “Mrs. Favano has said she believed it to be in M.F.’s best interest to have a relationship with the Plaintiff, which would be, of course, her father’s extended family. So, that hurdle has been met.”
The grandparent-visitation statute requires that three separate elements must be proved by a preponderance of the evidence to establish that court-ordered visitation is in the child’s best interest: (1) the petitioner has the capacity to give the child love, affection, and guidance; (2) the loss of the relationship between the petitioner and the child is likely to harm the child; and (3) the petitioner is willing to cooperate with the custodian if visitation with the child is allowed. Ark.Code Ann. § 9-13-103(e)(1)-(3). Favano does not contend on appeal that Elliott failed to prove elements (1) and (3), and we agree that there was sufficient evidence for the trial court to find that Elliott had the capacity to give M.F. love, affection, and guidance and that she would be willing to cooperate with Favano on visitation.
Thus, the primary issue here is whether Elliott met her burden of proving that the loss of the relationship between her and M.F. was likely to harm the child. Favano argues that there was insufficient evidence presented to establish this element of-the statute, and we agree. The trial court’s finding that the best interest “hurdle” was met solely by Favano’s own testimony is clearly erroneous, as this testimony did not relieve the trial court of its duty to find that all three statutory elements of best interest, including the harm element, had been proved by Elliott. Though Favano did testify that a relationship with Elliott was in her daughter’s best interest, she also qualified this statement and further explained that court-ordered visitation was not in M.F.’s best interest. The court’s ruling did not state what harm |uwould likely be suffered by M.F. if the relationship with her grandmother was lost, and there was not sufficient evidence presented by Elliott to satisfy her burden of proving this particular element. To the contrary, Favano testified at the hearing that, even though M.F. had not had visitation with Elliott in more than one year, she was currently doing “awesome.” Favano specifically stated that she saw no evidence that M.F. was suffering harm from the recent lack of a relationship with Elliott and in fact argued that court-ordered visitation was ill-advised and even harmful due to Elliott’s lack of judgment in the past. In addition, M.F.’s adoptive father, Brandon, testified that he and M.F. had recently run into Elliott at the mall and that M.F. acted “standoffish” and reserved toward her grandmother. He stated that M.F. had no interest in visiting Elliott and her extended family and that M.F. had previously asked if she had to go and visit them.
In another recent case involving grandparent visitation, we reversed the trial court’s award of visitation due to the lack of evidence that harm to the children would likely result from the loss of a relationship with their grandparents. Bowen v. Bowen, 2012 Ark. App. 403, 421 S.W.3d 339. Despite the trial court’s finding that harm would occur to the children without court-mandated visitation, we held that the record was completely void of evidence to support such a finding. Id. We noted that the grandparent-visitation statute requires proof of both a substantial relationship and that visitation is in the best interest of the child, and we farther stated there is a substantial difference between a relationship benefitting a child and the denial of that relationship harming the child. Id. Because a parent is presumed to act in the best interest of his or her child, and the grandparent-visitation statute is in derogation of that 1 ^presumption, the statute explicitly defines the factors that the trial court must consider when determining grandparent visitation. Id. The burden is placed on the grandparent to prove each of the statutory elements by a preponderance of the evidence, and the trial court erred in Bowen in not requiring the grandparents to show that the parent’s decision to limit or deny visitation would likely cause harm to the grandchildren. Id.
In the present case, unlike in Bowen, the trial court failed to even address the required element of harm that M.F. would suffer from a loss of her relationship with Elliott, and we find insufficient evidence in the record to satisfy Elliott’s burden of proving this statutory element. Thus, the trial court’s finding that Elliott had proved that visitation was in M.F.’s best interest is clearly erroneous, and we reverse the trial court’s order granting Elliott’s petition. Given our reversal on Favano’s first point on appeal, we find it unnecessary to address the merits of her argument regarding the denial of her motion for new trial.
Reversed and dismissed.
VAUGHT, C.J., and PITTMAN, HART, and ROBBINS, JJ., agree.
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LARRY D. VAUGHT, Chief Judge.
| Fayetteville Real Estate & Development, LLC, brings this appeal from a judgment of the Washington County Circuit Court dismissing its claim for trespass; reforming the deed that appellees, Bradley Norwood and Christy Norwood, were given to their property, Lot 3 in The Falls Subdivision; and granting appellees’ claim for quiet title. We affirm the circuit court’s decision in all respects.
This case involves Lots 2 and 3, which are contiguous. Appellant now owns Lot 2, which is vacant, and the other vacant lots in the subdivision. Like the other lots, Lots 2 and 3 have setbacks in the front, back, and sides; there is also a utility and drainage easement between them. Legacy Building & Development, LLC (LB & D), was the original developer of the subdivision. It obtained a construction loan from United Bank (UB) and gave a mortgage to secure that loan on January 18, 2006; the mortgage was filed the next day. On ^September 13, 2006, appellees entered into a contract for LB & D to build and then sell them a house on Lot 3 for $252,000, using a house plan selected by appellees. The covenants and restrictions in the subdivision’s bill of assurance required the home to be at least 2500 square feet and to have a three-car garage.
After being paid by LB & D, UB gave LB & D a release of Lot 3 from the mortgage on October 10, 2006; a partial satisfaction of mortgage was filed on October 12, 2006. During construction of the house to be purchased by appellees, LB & D’s subcontractor erroneously laid the side-loading driveway leading to the three-car garage partially across Lot 2, mostly in the utility easement. Without knowing of this error, LB & D and appellees closed on the property on February 23, 2007; the deed was filed on March 1, 2007. All of the closing documents, including the deed, only referred to Lot 3 in the property description and did not expressly convey the driveway’s encroachment on Lot 2.
LB & D renewed its loan with UB on April 18, 2007, and the related “modification of mortgage” securing LB & D’s remaining debt was filed on May 15, 2007. The modified mortgage excluded the lots that had already been sold, including Lot 3. Also excluded from the mortgage was Lot 1, on which LB & D had begun building a house with a garage that faced Lot 2 and which was located twelve to fourteen feet from the boundary line between the lots.
|aOn November 2, 2007, UB filed an action against LB & D to foreclose on the mortgage secured by the unsold lots. Dean Morris, d/b/a LB & D, filed a petition for bankruptcy on November 6, 2007. UB obtained an in rem foreclosure decree; for the amount of its full judgment balance ($708,335.68), it purchased the unsold lots of the subdivision, including Lot 2. The circuit court confirmed the sale on April 14, 2008. UB sold the vacant lots, including Lot 2, to appellant by general warranty deed on June 27, 2008, for $725,000. Legacy National Bank foreclosed on a mortgage it held on Lot 1, with the partially-built home on it, and purchased that lot for $100,000 on July 29, 2008.
In the summer of 2008, appellees became aware that part of their driveway was on Lot 2. On November 17, 2008, appellant notified appellees that it considered their driving over Lot 2 to be a trespass and instructed them to either purchase Lot 2 (for $80,000) or cease trespassing. Appellees responded, through their attorney, that they had legal and equitable rights to use that portion of Lot 2. On July 6, 2010, appellant filed this action for trespass and ejectment. Appel-lees filed a counterclaim for quiet title and a third-party complaint against LB & D and Dean Morris for reformation of their deed. Appellees amended their counterclaim to include the establishment of an easement by necessity or by implication.
The case went to trial on September 1, 2011. Dean Morris, LB & D’s sole owner; Brad Norwood; Gary Langham, who gave appellant an estimate for putting in a new driveway on Lot 3; John Scott, UB’s president and CEO; Matt Patterson, a loan officer for UB; Greg |4Wise, a neighbor of appellees; and Don Pitts, UB’s chairman of the board, who formed appellant (of which he is the president and owner) to buy this subdivision and other properties, testified. The trial court made the following findings in its order:
1. It was the intention of Legacy Building and Development (“LBD”) to convey to Bradley and Christy Norwood (“Norwoods”) the land upon which their driveway is situated when it passed the deed of February 23, 2007, to the Nor-woods. The Norwoods intended to receive the same land and the fact that said land was not included in the legal description in the February 23, 2007 deed was the result of a mutual mistake of fact.
2. The Norwoods proved the intention of the parties, the mutual mistake of fact, and all elements of their reformation of deed claim beyond a reasonable doubt.
3. United Bank provided a partial lien release to allow the sale of the land from LBD to the Norwoods.
4. United Bank and Fayetteville Real Estate and Development, LLC both acquired title to Lot 2 that is the subject of this case, with notice of the claim to title of the Norwoods and therefore neither took title to that lot as a bona fide purchaser.
5. United Bank’s interest as a mortgagee was not prejudiced by the conveyance of the land containing the driveway from LBD to the Norwoods.
The trial court dismissed appellant’s claim for trespass; reformed appellees’ deed to include the driveway depicted on the attached survey, which had been filed of record; and granted appellees’ claim for quiet title. The court stated that, based on these rulings, it would not reach appel-lees’ easement claim. Appellant filed a timely notice of appeal.
Appellant raises numerous points on appeal, two of which were not preserved for review. It argues that appel-lees’ claims are barred by res judicata because title to Lot 2 was | svested in UB in the court’s order confirming the foreclosure sale of the property to UB. Appellant raised this affirmative defense but did not, however, develop or obtain a ruling on it below. We therefore need not address it. Waggoner v. Waggoner, 2012 Ark. App. 286, at 3, 423 S.W.3d 117, 119. Appellant also argues that the evidence was insufficient to establish an easement. Because the trial court expressly stated in its order that it would not rule on the easement claim, we will not do so. Id.
Most of appellant’s points on appeal are necessarily determined by our decision regarding the following arguments: (1) as the holder of all of the mortgagor’s and mortgagee’s interests as of the filing date of the mortgage, UB took priority over appellees; (2) notice of the construction on Lot 1 did not place a duty to resurvey Lot 2 on UB; (3) as the purchaser of UB’s interest and priority, appellant’s rights are superior to appellees’; (4) appellees failed to establish two necessary elements of reformation; (5) as a bona fide purchaser for value, appellant was not subject to appel-lees’ claims; and (6) appellant did not assume the liabilities of LB & D.
[ (Appellant asserts: “The Circuit Court erred in holding that LB & D ‘owned’ Lot 2 on the date Lot 3 was conveyed to the Norwoods. LB & D did not own legal title to Lot 2 on February 23, 2007. Legal title was held by UB, the mortgagee.” Our supreme court has long held that, although a mortgagee has legal title to the mortgaged property, it actually possesses a security interest and is not an absolute owner of the property; it does not hold, at law or in equity, an absolute, unconditional, and indefeasible title. City of Fort Smith v. Carter, 372 Ark. 93, 270 S.W.3d 822 (2008). A mortgage is simply an instrument evidencing a security for debt, and -will be void upon the discharge of that debt. Moore v. Tillman, 170 Ark. 895, 282 S.W. 9 (1926).
It is true, as appellant contends, that LB & D did not have the unilateral power to adversely affect UB’s recorded rights:
It has long been the law in this State that nothing can be done by the mortgagor, subsequent to the execution of a valid mortgage, which can impair the rights of the mortgagee. Deming Investment Co. v. Bank of Judsonia, 170 Ark. 65, 68, 278 S.W. 634 (1926). The mortgagor can make no contract respecting the mortgaged property which would bind the mortgagee or prejudice his rights. Baker-Matthews Lumber Co. v. Bank of Lepanto, 170 Ark. 1146, 282 S.W. 995 (1926). “Under this rule, it is beyond the power of the mortgagor to disturb the priority of the mortgage after its execution. Accordingly, dealings of the mortgagor with a third person, subsequent to the execution of the mortgage, cannot affect prejudicially the rights of the mortgagee.” 55 Am.Jur.2d Mortgages § 323 (1971). See also Whittington v. Flint, 43 Ark. 504 (1884). Furthermore, a mortgagee, after having his deed recorded, is not required to search the record from time to time to see whether other encumbrances have been put upon the land. Birnie v. Main, 29 Ark. 591 (1874).
Amstar/First Capital, Ltd. v. McQuade, 42 Ark.App. 185, 187, 856 S.W.2d 326, 327 (1993).
However, this case concerns whether the trial court clearly erred in ordering the |7equitable remedy of reformation, and cannot be decided by simply tracing legal title to, and the priority of liens on, Lot 2. To acknowledge that appellant possesses all of the legal rights of UB in Lot 2 does not resolve this case; as explained below, the case law is clear that a deed to property can be reformed even when the holder of record legal title resists it. Reformation is an equitable remedy that is available when the parties have reached a complete agreement but, through mutual mistake, the terms of their agreement are not correctly reflected in the written instrument purporting to evidence the agreement. Lambert v. Quinn, 32 Ark.App. 184, 798 S.W.2d 448 (1990). A mutual mistake is one that is reciprocal and common to both parties, each alike laboring under the same misconception in respect to the terms of the written instrument. Id. at 187, 798 S.W.2d at 449. A mutual mistake must be shown by clear and decisive evidence that, at the time the agreement was reduced to writing, both parties intended their written agreement to say one thing and, by mistake, it expressed something different. Id. at 187, 798 S.W.2d at 449. Questions regarding the parties’ intent are to be resolved by the trier of fact. See Spann v. Lovett & Co., 2012 Ark. App. 107, at 13, 389 S.W.3d 77, 89; Stalter v. Gibson, 2010 Ark. App. 801, at 5-6, 379 S.W.3d 710, 713-14.
Through reformation, a court may correct the legal description of the property conveyed in a deed. Statler v. Painter, 84 Ark.App. 114, 133 S.W.3d 425 (2003); see, e.g., Kohn v. Pearson, 282 Ark. 418, 670 S.W.2d 795 (1984) (reforming a deed that erroneously described a tract as lying in South 40 rather than North 40); Colbert v. Gann, 247 Ark. 976, 448 S.W.2d 649 (1970) (reforming a deed where the abstracter did not properly describe the | sland that the appellees intended to sell or that the buyer intended to buy); Galyen v. Gillenwater, 247 Ark. 701, 447 S.W.2d 137 (1969) (reforming a deed that inaccurately described a tract); Guthrey v. Garis, 245 Ark. 477, 432 S.W.2d 868 (1968) (reforming a deed to reflect NW1/4 NE1/4 rather than NE1/4 NW1/4); Lambert, 32 Ark.App. at 190-91, 798 S.W.2d at 451-52 (reforming a deed where a description embraced land that the seller did not intend to sell and that the buyer did not intend to buy). Further, the concept of priority does not restrict reformation to only those who were parties to the mistake. Merryman v. Cargile, 2012 Ark. App. 248, at 9-10, 413 S.W.3d 555, 560 (affirming a trial court’s order reforming deeds to accurately reflect the acreage owned by subsequent grantees). See also Johnston v. Sorrels, 21 Ark.App. 87, 729 S.W.2d 21 (1987).
Whether a mutual mistake that warrants reformation occurred is a question of fact. Stalter, 2010 Ark. App. 801, at 5-6, 379 S.W.3d at 713-14. Even in reformation cases, where the burden of proof is by clear and convincing evidence, we defer to the superior position of the trial court to evaluate the evidence, Akin v. First Nat’l Bank, 25 Ark.App. 341, 758 S.W.2d 14 (1988), and the proof need not be undisputed. Lambert, 32 Ark.App. at 187, 798 S.W.2d at 449. Although we review traditional equity cases de novo on the record, the test on review is not whether we are convinced that there is clear and convincing evidence to support the trial court’s findings but whether we can say that the trial court’s findings are clearly erroneous. Id. at 187, 798 S.W.2d at 450.
A party cannot, however, obtain reformation if reformation would prejudice a |9subsequent bona fide purchaser. Statler, 84 Ark.App. at 120, 133 S.W.3d at 429. The reason behind such a rule is that, when a bona fide purchaser acquires an interest in land and makes an investment in the land, the party is entitled to have his expectations protected. Id. at 120, 133 S.W.3d at 429. The elements required to establish one’s status as a bona fide purchaser, so as to defeat reformation, are (1) a purchaser in good faith; (2) for valuable consideration, not by gift; (3) with no actual, constructive, or inquiry notice; (4) who would be prejudiced by reformation. 66 Am.Jur.2d Reformation of Instruments § 63 (2001). This analysis focuses on the “factual circumstances relating to the events surrounding a transaction, that is, the realities disclosed by the evidence as distinguished from their legal effect....” Id. at 281. A subsequent purchaser will be deemed to have actual notice of a prior interest in property if he is aware of such facts and circumstances as would put a person of ordinary intelligence and prudence on such inquiry that, if diligently pursued, would lead to knowledge of the prior interest. Rice v. Welch Motor Co., 95 Ark.App. 100, 234 S.W.3d 327 (2006). This type of notice must be enough to excite attention or put a party on guard to call for an inquiry. Id. at 104-05, 234 S.W.3d at 331. Whether one buying land has actual notice of another’s interest in the land is a question of fact. Id. at 105, 234 S.W.3d at 331.
In Miller v. Neil, 2010 Ark. App. 555, at 9-10, 377 S.W.3d 425, 430, we discussed Smotherman v. Blackwell, 222 Ark. 526, 261 S.W.2d 782 (1953), in which the supreme court had addressed a similar question:
Lot 1 was owned by the Blackwells, and the adjoining Lot 2 was owned by Smotherman. In 1949 or 1950, the Blackwells had their property surveyed and ^discovered that their property, based on the 1911 plat, extended five and one-half feet onto Lot 2. Smother-man voiced some uncertainty about the true boundary of his property. Wflien the parties were unable to resolve their boundary dispute, Smotherman filed suit. The trial court found in favor of the Blackwells because they were bona fide purchasers who acquired title free of Smotherman’s equitable right to ob tain reformation. Smotherman, 222 Ark. at 527, 261 S.W.2d at 783. Our supreme court reversed, holding that Smotherman’s occupancy gave Blackwell notice of Smotherman’s claim of ownership and that the Blackwells should have taken the precaution of having a survey made before they purchased Lot 1. Had they done that, they would have learned of Smotherman’s possession and would have discovered the past events (mutual mistake) that entitled Smotherman to reformation of his deed. Smotherman, 222 Ark. at 528, 530, 261 S.W.2d at 783, 784.
The supreme court’s discussion of notice in Smotherman is also relevant:
The question ... is not that of adverse possession; it is whether Smotherman’s partial occupancy gives notice of his claim. In a case identical in principle, Thalheimer v. Lockert [Lockhart ], 76 Ark. 25, 88 S.W. 591 [(1905)], we held that it does. There, as here, the description used in the deed was legally good, but it did not include all the land the parties had in mind. There, as here, the first grantee was in possession of only part of the omitted property when the common grantor sold to a third person. It was held that the second purchaser, being put on notice by possession, took subject to the plaintiffs equitable right to obtain a reformation of his deed.
... Smotherman’s occupancy gave notice of the ultimate fact — that he claimed to own the land — and a landowner cannot be expected to recite offhand all the evidence that may be needed to establish his title. Had the Blackwells taken the precaution of having a survey made before they bought Lot 1 they would have learned of Smotherman’s hostile possession, and they are charged with knowledge of such facts as would have been disclosed by a diligent investigation of his claim.
222 Ark. at 529-30, 261 S.W.2d at 784.
The controlling issue in this appeal is whether the trial court clearly erred in finding that appellant was not a bona fide purchaser because it had notice of appel-lees’ claim to the In strip of land. Appellant’s singular focus on the date of UB’s original mortgage in January 2006 is misplaced because LB & D’s and the Nor-woods’ mutual mistake as to the description of the property to be conveyed was not the only mutual mistake that occurred. UB loaned the money to LB & D so that it could purchase the land and improve it for the development of a subdivision. That homes were to be built and the improved land was to be released from the mortgage for sale to third parties was clearly intended by UB and LB & D. When UB executed the partial release in October 2006, appellees and LB & D had a contract for construction to begin on Lot 3. UB’s president testified that it filed the release so that LB & D could close the sale to appel-lees. Further, when LB & D conveyed Lot 3 to appellees, it still owned the adjoining Lot 2. LB & D’s owner, Dean Morris, who served as the general contractor, testified that he had believed that the driveway that he had built for appellees’ house was built on Lot 3; that its purpose was to provide access from the street to their house; and that he had not intended to retain legal title to the driveway. When UB executed the “modification of mortgage” in April 2007 excluding Lot 3, appel-lees’ home was finished, the driveway was in place, and closing had occurred. UB had actual knowledge of this deed. There was, therefore, more than sufficient evidence to establish that LB & D, UB, and appellees believed that the deed that LB & D gave to appellees passing title to Lot 3 included all of the land improved for appel-lees’ purchase, and that UB intended to release its security interest in all of the land that h?LB & D had improved for appellees.
There was also more than sufficient evidence that UB and appellant were on inquiry notice of the location of the driveway. The testimony of every witness who discussed the subject revealed the obvious question of whether there was sufficient space between the house on Lot 1 and appellees’ driveway. Before UB purchased all of the unsold lots in the subdivision, appellees’ house had already been completed; appellees had received their deed; and construction of a house on Lot 1, on the other side of Lot 2, had begun. It is also worth noting that the subdivision’s restrictive covenants required appel-lees to build a three-car garage and park their cars off of the street, and that the driveway made it possible for appellees to comply with these provisions. UB’s president and CEO and its loan officer inspected the property before the sale to appellant and, therefore, were charged with knowledge of facts that revealed boundary-line problems with Lot 2. UB’s loan officer, Matt Patterson, was aware that the driveway to the house on Lot 1 could be very close to Lot 2. Don Pitts was the chairman of UB’s board from the time of UB’s loan to LB & D through trial; when appellant acquired Lot 2, he was the manager and owner of appellant. Patterson testified that, as a matter of standard procedure, Pitts would have been given information about the vacant lots, including Lot 2’s obvious boundary problems, before appellant acquired the property from UB. In fact, Pitts inspected the property before appellant purchased it. Additionally, the trial judge personally inspected the property and found that any reasonable person who looked at Lot 2 would have realized that it had obvious boundary-line issues. In light of these facts, we |1scannot say that the trial court’s finding that appellant had notice of appellees’ claim and was not a bona fide purchaser was clearly erroneous.
Affirmed.
ROBBINS and ABRAMSON, JJ., agree.
. The City of Springdale accepted the subdivision’s final plat and covenants on August 8, 2006.
. Morris was discharged from bankruptcy on May 1, 2008.
. Pitts testified that he wanted to get the property "off the bank’s books.”
. Appellant also contends: (1) by establishing superior legal title to Lot 2 and appellees’ daily use of the driveway, it proved trespass and is entitled to ejectment and damages; (2) UB's interest in the property after foreclosure related back to the date of the mortgage and cut off all intervening rights; (3) the foreclosure sale extinguished appellees’ legal and equitable claims to title to the strip of land in dispute on Lot 2; (4) as the foreclosure-sale purchaser, UB received all of the rights in Lot 2 held by the mortgagor and mortgagee, as of the date of recording the mortgage; (5) permitting appellees to acquire part of Lot 2 was prejudicial to appellant; and (6) appellees’ claim to the strip of land on Lot 2 was, at best, an equity of redemption.
. We need not address the trial court’s finding that there was no prejudice to UB because appellant was on inquiry notice of the problem and was not, therefore, a bona fide purchaser. | [
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Eakin, J.
The honored citizen and gallant soldier, Archibald Yell, who fell at Buena Yista in 1846, left a will. It appears from its context, that he left five children; a daughter, Mary I., in Tennessee, and four other children at home in Arkansas, bo-wit: Clinton, Elizabeth, Jane and Artamisia. To the last four he divided a lot of ground in the town of Ozark which is the subject of this suit. Artamisia died in 1855 without issue, whereby each of her Arkansas co-devisees, became entitled to a fourth, each, of her share, the other fourth going to her Tennessee sister. In other words, Clinton became entitled to five-sixteenths. He died in 1861, whilst so in joint possession, leaving two children, one of whom soon afterwards died also. The survivor, Archibald 'Yell, Jun., ou the sixth of May, 1881, filed the complaint in this cause, for the recovery of his interest in the land, describing it as a third, against the defendants, who are shown to have obtained possession through Jane and Elizabeth, and to ■hold under them ; and who are admitted to have held the whole lot, adversely, since 1870.
It may be stated, once for all, that the evidence shows that plaintiff was not born later than in May, 1857 ; but was ¡probably born about the ninth day of that month.
The complaint, marked filed on the sixth of May 1881, ivas in time to save the statute of limitations if it were the beginning of the suit. There is no summons in the transcript ; nor appearance of defendants until the month of June 1881. The appearance was certainly too late to save-the operation of the statutes, if that be the beginning.
There is much in the pleadings, exhibits, proof and instructions which concerns the titles of the respective parties. What we have stated is the result of it all. The verdict was for defendants; and, with regard to that verdict, we have only to say that it coul,d not have been otherwise, if the suit was barred ; and must have been for the plaintiff if the suit was brought .in time. Whether or not the statute -had run,, is the only practical question presented. About the title, there is no difficulty whatever, legal or equitable. It was in the plaintiff if not barred. The adverse possession was-admitted of record. The court will therefore notice only such alleged errors as touch the matter of limitation. This was duly pleaded by defendants.
The first ground of a motion for a new trial is that the-court refused to give to the jury the instructions moved by ... ' plaintiff; and because the court erred in modifying instructions two and three in the series. There were eight in all, and were all refused ; most of them contain correct propositions of law, not applicable to the statute of limitations ;. but their refusal under the circumstances of the case could work no prejudice. Upon the subject of limitations the law was correctly stated by the court in the instructions-asked by defendant. They were to the effect that the burden of proof was on the plaintiff to show that the action was begun within three years after he attained majority.
After the jury had retired, and deliberated, without hayine been a':)^e t° agree upon a verdict, they came into court, and were then orally instructed by the judge that the plaintiff could not recover “unless it ivas proved by evidence that the complaint was filed and the summons was-issued thereon, before the fifteenth of May, 1881,” and further “that the certificate of filing on the back of the complaint, was not evidence, unless introduced as evi dence.” The first portion of this oral charge is entirely correct, there being no appearance before the day named. The latter portion was erroneous. The qlerk’s endosement of the filing of the complaint may be noticed by the court and jury. It has always been treated as a part of the record here ; and need not have been formally produced to the jury as evidence.^ Their attention might have been directed to it through instructions, or by counsel in argument. Still, without something to show when the summons issued it was worthless, and the error did no harm.
Another ground of the motion seems to be intended set up surprise on the trial, in this : It shows that plaintiff is a non-resident, and that in prosecuting the suit he acted by an agent — that his agent had ordered suit to be brought in the fall of 1880, and supposed it was done; but the attorney had neglected to issue the summons ; that he discovered that fact on the fifth of May, and employed another attorney who filed the declaration in this case on the sixth ; that the clerk did then issue the summons, and place it in the sheriff’s hands ; and that the sheriff executed it; that he supposed it had been returned, but, after the trial begun, was informed by the clerk that it had not; that the sheriff was then absent on official duty, and did not return during the trial; that he did not know the sheriff was about to leave, nor where to find the summons ; that on a new trial,, he would be able to prove that the summons ivas served on the sixth or seventh of May ; that the failure of his counsel to show the time of the summons was an oversight; and that if a new trial is granted he will prove the facts by the clerk.
It is not shown that any motion was made during the trial for a continuance or suspension of the cause, until the sheriff might be ordered to return the writ; nor is it shown that the clerk, who is an officer of the court, could not have been examined at once. The court, in the exercise of a sound discretion might, in the furtherance of justice, have permitted one or the other, as it might deem most proper ■under the circumstances. The court had been in session for more than a month, and there had been several proceedings in the cause to call the attention of attorneys to the papers. The session began on the sixth of J une, and on that day this cause was set for trial on the twenty-seventh. That was the first appearance of the defendants by their attorneys, and the attorney for the plaintiff could not have relied on it to save the statute. The answer itself filed on the twenty-fifth of J une set up the statute and advised the plaintiff of the importance of showing, by means other than the appearance, that the action was begun early in May. There were divers intervening motions made and discussed in the cause between that time and the twenty-fifth of July, during which time the sheriff was in court, and might have been called on for his return, whibh was the proper evidence to sustain the issue on the plaintiff’s side. He left about two days before the trial- which was not until the twenty-seventh.
Homer himself sometimes nods, and the most diligent attorneys -are feelingly aware that at times they commit such oversights in the press of business. The Justice who delivers this opinion has no stones to throw at his brethren -of the bar, since as attorney he conducted the case of the plaintiff in Merrick v. Brittian, 26 Ark., 496, where a motion for a new trial on a similar ground of surprise was not allowed. That case is an authority in point, and the reasoning of the court was accepted by him then without a murmer. It is now cited in support of the opinion that we cannot say the court below erred in holding that ground of the motion insufficient.
Such applications are advanced to the sound legal discretion of the presiding judge, who is always cognizant of much, which, from its nature, cannot be imported into the record, but which he may himself judicialW notice, and which should guide his discretion. We can only act upon an abuse of it, or in plain furtherance of justice manifest to us.
Upon the case as made, the verdict of the jury could not without error have been otherwise, and it was not error to refuse a new trial. The judgment for defendants must be affirmed. | [
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English, C. J.
At the March term, 1882, of the circuit, court of Dorsey county, Ed. M. Orton was indicted for selling liquor without license; the indictment charging that, “said Ed. M. Orton in the county aforesaid, on or about the fifteenth day of January, 1882, did unlawfully sell one pint of ardent liquor commonly called whiskey, without first procuring a license from the county court of said county of Dorsey authorizing him, the said Ed. M. Orton,, to exercise such privilege, contrary to the statute and against the peace and dignity of the State,” etc.
The defendant filed a plea in abatement, alleging in substance that if the offense charged in the indictment was-committed at all, it was committed after the passage of the-act of the legislature prohibiting the sale of ardent spirits-within three miles of Pleasant Ridge Academy. That said academy is in or near Toledo. That said offense, if committed at all, was committed within three miles of saidi academy, to-wit: at Toledo, etc.
The plea was submitted to the court, as if upon demurrer we suppose, and the court held the plea good, and rendered judgment dismissing the indictment, and the State appealed.
The act referred to in the plea in abatement was approved March 4th, 1879, (Acts of 1879, page 21), and provides: “That it shall not be lawful for any person to sell, barter or exchange, any vinous or ardent spirits, or intoxicating-bitters, in any quantity whatever, within three (3) miles of' the Pleasant Ridge Academy, in the county of Dorsey, state of Arkansas.”
The act makes it a misdemeanor to violate any of its pro visions, and subjects the offender to a fine of not.less than twenty-five dollars, nor more than two hundred dollars.
Taking the allegations of the plea to be true, the sale of whiskey charged in the indictment was made within three miles of Pleasant Ridge Academy, and was an offense under the above act of the fourth of March, 1879, and appellee was subject to indictment and punishment under that act.
The indictment charges no offense within the perview of that act. It charges a sale of whiskey in Dorsey county, when it should have alleged the sale to have been made-within three miles of Pleasant Ridge Academy, in Dorsey county, contrary to the special statute in that case made- and provided.
The indictment was doubtless drafted under the general act of March 8th, 1879, (Acts of 1879, p. 33), prescribing the mode of obtaining license to sell liquors, and subjecting any person selling without license to a fine of not less than two hundred dollars nor more than five hundred dollars.
But whatever may be the effect of the proviso in section 3 of the act of March 26th, 1883, (Acts of 1883, p. 192-3), the act of March 4th, 1879, was not in force or effect at the time the offense charged in the indictment was committed, within the local territory or area described in the special act of March 4th, 1879.
Section 18 of the act of March 8th, 1879, expressly reserves from repeal, and leaves in force within its limits, any special act regulating the sale of ardent, vinous or fermented liquors in any special locality in this .State.
This case falls within the decision of this court in DeBois v. the State, 34 Ark., 381. In that case DeBois was.indicted for selling liquor in White county without license. On the trial it was found that the sale was made within two miles of the Judson University. On this evidence the de ■fendant was convicted and fined two hundred dollars, the lowest penalty imposed for selling liquor without license by the act of March 8th, 1879, The judgment was reversed on the ground that the defendant should have been indicted under the special act of Febrnary 28th, 1875, regulating the ■sale of liquors within two miles of the Judson University.
Affirmed. | [
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OPINION.
We approve the finding of the chancellor upon the facts. The property was rightfully a homestead, and had never-been abandoned as such, although there had been tempo rary removals for business purposes. The complainant was-a journeyman carpenter, and compelled to seek work away from home. The wife had sometimes gone with him to-other places, working herself to aid in the family support. A part of the while, in the absence of the husband and wife,, the house was occupied by Watson’s mother and his children. Sometimes it was occupied by some one put in by Watson’s agent, and sometimes it was unoccupied, much neglected and going to dilapidation. Still the preponderance of the testimony is in favor of the view that Watson was absent from necessity, and regarded it as his only home, to be resorted to when all else failed. A homestead would be of little worth to the poor, if it might not be temporarily disused, at the calls of business, or health, or the numberless exigencies which often require the limited absence of whole families fiom the roof-tree. It may be closed or left in the charge of friends, or even left exposed, if there be be no abandonmrnt of an intention to retain it as a homestead. Length of time is unimportant, save as indication of intention.
The question of abandonment cannot become important in cases arising under the constitution of 1868, if the were the actual homestead when the incumbrance was tempted; that is, independently of questions of limitatations and estoppel. We might conceive cases, where an owner of a homestead having encumbered and abandoned it, might by standing by, and misleading another to its purchase, be estopped from claiming it. Or a title so acquired by any color, might ripen to validity. And the ordinary rules as to staleness would be as applicable to such claims as to any others. What this court has so often asserted as to make any further assertion unnecessary of it in the reports, is : that a mortgage or a deed of trust, or any attempted incumbrance on a homestead, other than those excepted in the constitution, is void. The owner may aban ■don and sell the homestead the .next day, and make good ■title. It is not a question of good faith, or of sound morals. It is a matter of State policy. Whilst the owner might sell his homestead, and thus realize its fair value, the constitution meant to protect him and his family from the insidious temptation to incur debts upon it, in the sanguine •expectation of being able to discharge them; but which would in many cases result in having the home taken for an insignificant sum. It was easy for a creditor to take notice •of the homestead, and he cannot complain if he finds that to be void in his hands, which the constitution advised him would be so.
No schedule was necessary. If in answer to a bill for foreclosure, the homestead had not been claimed by defence, the opportunity would have passed, because the decree would become, between the parties, an adjudication of the right. Not so with regard to a deed of trust executed in pais. The maker may assert- his right by original bill, or the constitutional provision would be easily evaded.
It is a matter of no consequence that much of the merx was advanced after the adoption of the constitution of 1874. The contract and attempted incumbrance were all under that of 1868, which continued to govern contracts made under it.
The wife was neither a necessary nor proper party, but the decree is not on this account any more prejudicial to appellant. It is not in her favor.
We find no error in the record. Affirm. | [
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Smith, J.
. Heath sued the railway company a before a justice of the peace for $100, damages alleged to have been •sustained by him by reason of the detention of certain goods of his. To his complaint he attached his bill of lading,, from which it appeared that the company had received the goods to Cairo, in Illinois, and had undertaken to transfer them to Walnut Ridge, in Arkansas. The plaintiff alleged that the defendant’s servants had negligently carried the goods beyond their place of destination, in consequence-of which they were not delivered to him for a period of seventy days. The defendant was duly summoned, but did not appear in the justice’s court. There was a judgment by default, from which the defendant appealed to the circuit, court. There its appeal was dismissed for the want of prosecution, and it has appealed to this court.
The only question is whether the complaint sets forth a., cause of action within the jurisdiction of the justice.
The obligations which the law imposes upon a common carrier are not only to deliver at its destination the property-received by him, but he must deliver, or be ready to deliver with reasonable expedition. Cooley on Torts, 640 ; Addison on Torts, 3rd 3d., 464.
A delay of seventy days is unreasonable unless explained,, and renders the carrier liable to an action for damages in some court.
Ty the present constitution {Art. VII, sec. 40), justices-of the peace have exclusive jurisdiction in all matters of contract, and concurrent jurisdiction in all matters of damage to personal property, when the amount in controversy does not exceed one hundred dollars. By “matters of damage to personal property” we understand all injuries which one may sustain in respect to his ownership of personal estate.
In suing a common carrier for the breach of a contract-for the carriage and delivery of goods, the action may be, inform, either ex contractu or ex delicto. The plaintiff may bring assumpsit, counting upon the nonperformance of the?agreement which the defendant made with him or he may bring case and count upon the violation of the public duty which the defendant owes. But the same law is applicable-to both classes of action and the measure of damages is the-same in both. B. & O. R. R. Co. v. Pumphrey, 59 Md., 390.
It is wholly immaterial whether this be regarded as an action upon a contract, or an action for a tort. In either-case the justice had jurisdiction to hear and determine the cause. But if it were material we should not reverse the' judgment-fin the present state of the record, if by any proof that might have been adduced on a trial it was possible for the plaintiff to show that he was entitled to recover. Dicus v. Bright, 23 Ark., 110; Moreland v. Condry, 40 Id. 78.
Affirmed. | [
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OPINION.
First, as to Mrs. Peters’ testimony. She was the real defendant. Her interests alone were assailed by the suit'; for after his discharge in bankruptcy the husband was not. liable in person or property. She was testifying for herself, against a stranger, and no policy of law springing from the marital relations had any application.
At the time of her deposition the suit stood in the name of the administrator of the original plaintiff. She could not have testified under the statute as to transactions between herself and Doggett. But that did not preclude her from showing that she had leased to her husband, had put the plantation under his sole control, had claimed only stipulated rent, and that he cultivated for his own benefit and made his own contracts, without any authority from her to employ anybody, or to make any contracts binding her property.
It is now too well settled to admit of further discussion2that, in equity, with regard to her separate estate, a wife may contract with her husband on fair terms. The unquestioned English doctrine, which, in so far as it is not controlled by statute, we have adopted in this State is, that she may deal with it- as a femme sole. At the time of the transactions in question there were restrictions upon her powers of alienation of real estate. They required the concurrence of her husband in a deed, and a privy examination as to her free will. But these restrictions had no application to annual renting, which need not be in writing at all. She might of her own will, have put a stranger in for a year. She certainly would not have been bound by his contracts for an overseer, even although that overseer should have improved her lands whilst working under a contract for wages. It would be unjust and unreasonable to preclude her from giving her husband the same advantage as a renter, without jeopardizing her estate. We can conceive no reason, nor principle, for denying her power to rent to her husband, or to prove by her own oath that she had done so. Regarding, then, either her capacity, or the subject matter, her testimony was admissible.
The fourth section of the act of Dec. 15th, 1875, provides that “the fact that a married woman permits her husband to have the custody, control and management of her separate property, shall not, of itself, be sufficient evidence that she has relinquished her title to said property ; but in such case, the presumption shall be that the husband is acting as the agent or trustee of the wife,” which presumption may be rebutted. The whole act is for the protection of the woman’s property against her husband’s creditors, and the evident meaning of this section is, that the husband shall not be considered to have acquired title by his wife’s permission, so as to make the property liable to execution ; in short to provide that the property shall remain her’s nevertheless.
If it were necessary, it would be important, too, to enquire whether the legislature had any other than the personal property in view. But the act can have no application to show that when the contract for services was made in 1874, Doggett might lawfully conceive himself contracting with Mrs. Peters through her agent. The act had not then been passed.
Nor does it follow because one is a trustee, or agent t° ^old and control property, he is authorized to bind |qie owner with contracts which may become liens upon it. Such powers must be express, or must be shown to arise within the scope of the agency. An overseer, for instance, is an agent to control a plantation, but he could not bind the real estate by contract, or even its crops, without more authority than arises from his agency.
The case of Bank of America v. Banks, U. S. Rep., S. C., (11 Otto) vol. 101, p. 240, becomes then in point, case went up from Mississippi where a statute provided that a married woman might rent her lands ; and was a case like this, where she had rented to her husband. He made "contracts for supplies, &c., and it was sought, as here, to make her liable on the ground of her husband’s agency. 'The proof was that he was cultivating the plantation on his -own account under a verbal lease from her. The Mississippi statute had provided “that all contracts made by the husband and wife, or by either of them, to obtain supplies for the plantation of the wife, may be enforced, and satisfaction secured out of her separate estate.” That made a a much stronger case than this, where we have no statute. Yet it was held not to apply where the husband was cultivating the land on his own account. Mr. Justice Clifford, ■delivering the opinion, said: “Leased premises cultivated by the husband, in his own name, and for his own benefit, are not plantations of the wife,” in the sense of the statute, •“nor,” he adds, “is the contract in this case one made by fhe husband with the consent of the wife, which may also be satisfied out of her separate property.” The proof had failed to show such assent. It was also held to be matter of indifference that the creditor did not know that the husband was cultivating his wife’s property under a lease. • It would •only show that the creditor had acted improvidently and without due caution.
In truth, the testimony of the wife in this case was superfluous. ' The transactions had been wholly between Doggett, •and the husband in his own name, and had been closed by taking the husband’s own note. This, prima facie, was a ¡settlement on the credit of the husband alone, without any •contemplation of the wife’s liability. After the issues made by the answers, the onus was on the complainant to .-show affirmatively, if it might be done at all, that the note was intended as a mere memorandum of amount, and that the wife was originally liable in her estate. That could not be inferred from the admission that the plantation was her ¡separate estate.
Her liability cannot be sustained on the grounds, that the labors of complainant enured to the betterment of the plan tation. She did not contract for them. Nor did the complainant make'the betterments-upon any expectation of being remunerated, quantum meruit. He was working on wages to be paid by the husband, and if any one could have the right to a lien for improvements, it Avould be the husband himself, and he certainly has not. If he chose to put his hired employe to improving his wife’s plantation, it was matter of grace, which did not concern the employe at all. The latter could look only for wages, and to the person Avh© contracted to pay them. With regard to the personal property sold to the husband, there Avas nothing to prevent him from letting them go into the mass of the separate property of' the wife, after they had become his by purchase, if it were-even clear that he had done so, which is not.
The chancellor was doubtless satisfied, as we are, that the. original credit was given to the husband alone, without the Avife’s concurrence or agency. It is a hardship that he lost the debt by the husband’s bankruptcy, but it is not an unusual misfortune, and chancery will not aid by granting relief.' against others, not liable.
We find no error. Affirm. | [
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Smith, J.
Trader brought his action against the makers of the following instrument, claiming that it had been indorsed to him before maturity:
“Hot Springs, Ark., Oct, 8th, 1881.
$381.25. Six months after date, we promise to pay to the order of Milburn Manufacturing Company, of St. Louis, Mo., three hundred and eighty-one dollars and twenty-five cents and exchange, value received, negotiable and payable at-with interest at the rate of ten per cent, per annum from maturity, and in the event of this note being collected by suit at law, agree to pay attorney’s fee of ten per cent, of amount of principal and interest due,, waiving any and all relief whatever from valuation and' appraisement laws.
J. T. Chidester,
J. T. Chidester, Jr.”
The grounds of defense were :
1. A breach of warranty on the part of the Milburn Manufacturing Company, as to the class, quality and material of certain vehicles, for part of the purchase price of which the note was made, and a consequent failure of consideration ; and
2. A denial that the plaintiff took the paper in good faith, averring that the transfer was colorable merely, done with the intent to deprive the makers of their just defense thereto, and that the plaintiff did not pay value ; and
3. Nil debt.
After a demurrer to the answer had been overruled, the cause came on for trial before a jury and the defendants had the verdict,
A motion for a new trial alleged that the verdict was contrary to law and unsupported by the evidence.
The first question which we are required to settle whether the instrument sued on is a negotiable promissory note. And by negotiability, we mean, not the quality of being transferable from one to another so as to enable the holder to demand payment of the paper and to maintain in tus own name an action upon it. In that sense county rants are negotiable. Crawford County v. Wilson, 7 Ark., 214. But we mean negotiability in the sense of the law merchant, which shuts out, in the hands of a bona fide purchaser, most enquiries as to the validity of the paper and precludes certain defenses which could be made to as between the original parties. Wall v. County of Monroe, 103 U. S., 74.
It is claimed that the stipulation expressed in the note, for the payment of an attorney’s fee, in case suit is brought upon it, destroys the negotiable character of the instrument. And several most respectable courts have adopted this view, holding that such a stipulation imparts to the contract an element of uncertainty or contingency which is altogether inconsistent with legal ideas of commercial paper. Mr. Justice Sharswood neatly characterizes such an agreement as “luggage which negotiable paper, riding as it does on the wings of the wind, is not a courier able to carry.” Woods v. North, 84 Penn. St., 406; S. C. 24, Am. Rep. 201.
See also, as supporting this view, First Nat. Bank v. Bynum, 84 N. C., 24 ; First Nat. Bank v. Gay, 63 Mo., 33; Samstag v. Conley, 64 Id., 476; First Nat. Bank v. Marlow, 71 Mo., 618; First Nat. Bank v. Jacobs, 73 Id., 35; Jones v. Radatz, 27 Minn., 240; Farquhar v Fidelity Deposit Co. (U. S. C. C. D., Pa.), 7 Cent. L. Jour., 334.
But the decided weight of authority and the better reason are on the other side : Sperry v. Horr, 32 Iowa, 184; Stoneman v. Pyle, 35 Ind., 103; S. C., 9 Am. Rep., 637; Stroup v. Gear, 48 Ind., 100; Seaton v. Scoville, 18 Kans., 433; Bullock v. Taylor (per Cooley, J.), 39 Mich; 137; Meyer v. Hart, 40 Id., 517; Gear v. Louisvile Banking Co., 11 Bush, 180; Witherspoon v. Musselman, 14 Id., 214; Heard v. Dubuque County Bank, 8 Neb., 10; Dow v. Updike, 11 Id., 95; Nickerson v. Shelden, 33 Ill., 372; Howmstien v. Barnes, 5 Dillon, 482.
In Merchants Nat. Bank v. Sevier, 14th Federal Rep., 662, the circuit justice of the 8th circuit and the district judge for the Eastern District of Arkansas concurred in holding a provision in a promissory note to pay an attorney’s fee of ten per cent, on "the amount due if suit is brought to enforce payment, to be void, as a stipulation for a penalty or forfeiture, tending to the oppression of the debtor, unsupported by any consideration and contrary to public policy; and gave judgment only for the principal aud interest of the note. This case arose between the immediate parties to the paper, and did not involve its negotiability. But the logical sequence of denying the validity ■of the stipulation is to affirm the negotiability of the note. For, if the stipulation is a nullity, and to be treated as of no effect, it can not destroy the negotiable character of the note. That which is void can not be so far effective as to render a note non-negotiable by reason of an uncertainty •which it sought, but failed, to introduce into its terms. That the recovery can in no case exceed the amount of the note and interest is also the conclusion which the courts of Michigan, Kentucky, Illinois and Nebraska have reached, and yet they maintain the negotiable character of the instrument. See cases above cited and Short v. Coffan, 76 Ill., 245.
The question whether such a stipulation is enforceable, is not presented in this case, as the fee was not claimed in the action.
Thus far we have proceeded upon authority. But on principle the stipulation for an attorney’s fee ought not to affect the negotiability of. the note. The principal and interest is the sum due upon the note at maturity, and by the payment thereof, it will be fully satisfied. And it is only in case of default of such payment, and after the note is overdue, and lost its negotiable character, that the penalty ■or attorney’s fee can be claimed or collected at all. In fact, the stipulation, although contained in the note, is strictly and properly speaking, no part of it, but a distinct contract, collateral thereto, as much as if it was written on a separate piece of paper. The ruling that such a stipulation makes the note usurious is founded upon the unauthorized assumption of fact, that the sum agreed to be paid as an attorney’s fee, in case the noté is not paid at maturity, is not what it purports to be, but illegal interest in disguise, Of course, where it appears that such is the real nature of the transaction, it should be treated accordingly. But the fact can not be assumed any more than that a like sum of the alleged principal is illegal interest in disguise. Wilson Sewing Machine Co. v. Moreno, 6 Sawyer, 35, per Deady, J.
For a collection and discussion of the adjudged cases on this point, see Article in 16 Amer. Law Rev., 849, entitled, “some disputed questions in the law of commercial paper,” and note to Merchants Nat. Bank v. Sevier, 14 Fed. Reporter, 662.
Now, the note being negotiable, the contract was that the . . . ^ . 7 „ , _ makers should pay it at maturity to any bona fide indorseewithout reference to any defence to which it might be subject in the hands of the payee. Carpenter v. Longan, 16 Wall, 273. And the plaintiff, having purchased it before duo from the payee, withoutnotice of any infirmity in it, was a bona fide holder for value. The only defences available against him» were want of power in the maker, as that they were infants, married women, etc. ; and illegality of consideration, e. g. gaming. Cromwell v. County of Sac, 96 U. S., 51; Dewing v. Perdicaries, Ib., 196. Consequently, the plaintiff is unaffected by any equities between the Milburn Manufacturing. Company and the defendant.
But it is insisted that the jury must have found that the-plaintiff did not acquire this note in good faith before maturity. There is nothing in the record to justify such a finding. There was abundant evidence to show .that the note was indorsed in blank, sold for money, and delivered to the plaintiff before it was due ; and there was no evidence to» the contrary.
We notice in this connection that the circuit judge charged jury that the note having been indorsed in blank, the & law presumes it was transferred to the plaintiff after maturity and not before. In the absence of a statute, the rule of mercantile law undoubtedly is, that, when there is no evidence of the date of an indorsement, the legal presumption is, it was made before maturity. But sec. 570 of Gantt’s Digest provides : “All blank assignments shall be taken to have been made on such day as shall be most to-the advantage of the defendant.” The only effect of this-statute is to change the former presumption, and it has no-application except in the absence of all evidence as to the date of the transfer, Clendenin v. Southerland, 31 Ark., 20; Trieber v. Commercial Bank, Ib., 128. Hence this charge of the court was inappropriate, inapplicable to the state of facts in proof, and calculated to mislead the jury.
Reversed and remanded with directions to sustain the plaintiffs demurrer to the first and third paragraphs of the answer and to proceed to a second trial in conformity with this opinion. • '
Mr. Justice Eakin is of opinion that the insertion of a. stipulation to pay attorney’s fee in event of suit renders the-note non-negotiable. | [
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Eakin, J.
This is a bill by a purchaser of a plantation under execution sale, against parties claiming by other purchases under other judgments against the same defendant; in which suit there is also an interplea by one claiming a portion of the lands as a purchaser under an execution and ¡ven. ex. from the federal circuit court; also against the same defendant. Questions arising under the homestead law are also involved. It is impossible to obtain any tolerably clear conception of the equities and legal rights of the parties without a succinct statement of the acts and proceedings in chronological order.
Beginning with the oldest judgment: This was recovered' in the Jefferson circuit court on the twenty-sixth of February, 1874, at the suit of William and Mary Madden against John B. Hall and others for a debt of $3,500; damages-$981.12, with costs. An execution issued on the thirtieth day of September, 1874, was levied upon the following-lands with others : The west half and the northeast quarter “and part of the southeast quarter” of section 36 in township 5, south range, 8 west. Some of the other lands, about the same in quantity, lay contiguous upon the south in sections 1 and 2 of township 6. All these contiguous lands, so levied upon, were sold under the execution on the fourteenth day of November, 1874, and purchased by C. H_ Carlton for $4500, “except 160 acres, claimed by J. B. Hall as his homestead exemption.” Carlton gave his own bond,, with security, at three months for the purchase money, but bought for the benefit, as is claimed, of John M. Hall, who is a nephew of John B., and who at the end of three months paid Carlton’s bond.
On the thirty-first day of October, 1874, Perkins, Swinson & Co. recovered a judgment in the United States court for the eastern district of Arkansas (in which the lands lie) against John B. Hall for $11,206.67, bearing interest at 8; per cent., on which execution, issued on the sixteenth of November following, was returned unsatisfied, no property having been found, On the eighth of November, 1875, another execution was issued, which was levied by the marshal on a tract of land set forth by metes and bounds, containing by estimate 160 acres. It will be apparent to-a survey- or that it includes the southern tier of forty acre tracts in said section 36, and the northern tier of forties in section 1 of the adjacent township on the south, with the exception of a small portion at the eastern end of both tiers. The-township line between 5 and 6 runs through the centre;. By direction of plaintiff, the execution was returned with out sale, but with the- levy preserved. On £he twenty-fourth day of October, 1877, this judgment was revived on scire facias in favor of S. Magress Swinson, who was shown to have become the sole owner, and the lien was-4 continued, for the term prescribed by law, from the third of August, 1877, the date of the scire facias. Afterwards, on the eighteenth day of February, 1878, John B. Hall died., and by another sci. fa. the judgment was revived against his administrator, John M. Hall, on the tenth of April, 1878. On the twenty-seventh of the same month, a ven. ex. was issued to the marshal, reciting the former levy and commanding a sale of the lands. They were sold on the twenty-ninth of May, 1878, and purchased by Sivinson, the plaintiff in execution, for $3,000. The marshal’s deed was executed on the second day of June, 1879.
On the sixteenth day of November, 1874, John Williams & Son recovered in the Jefferson circuit court a judgment against John B. Hall for $14,319.22, which judgment now belongs to Hare, the complainant in this suit. Execution issued on the thirteenth of November, 1875, and was levied on the same lands in section 36, embraced in the first levy under Madden’s judgment, and also the southeast fractional quarter of section 35 in the same township, which does not appear to have been touched by the other levies. The lands were purchased by Hare for $4,100, and a deed was obtained from the sheriff on the twelfth of April, 1877.
On the twenty-first day of April, 1875, in vacation, Thos. H. Allen & Co. appeared before the clerk of the circuit court of Jefferson county and filed under oath a statement of a debt due him from John B. Hall of $4499.58. Hall appeared and confessed, and the clerk entered judgment for the amount. Execution issued on the fifteenth of July following. Allen & Co. offered to credit this execution with $4,000 for the redemption of the lands which had been purchased under the Madden judgment, which ■offer was endorsed by the sheriff and returned. They also redeemed from John M. Hall the certificate of purchase, which had been given to Carlton, and which he had assigned to John M. Upon this the sheriff executed a deed to Allen & Co. of the landsbought by Carlton, again excepting the 160 acres claimed by John B. Hall as his homestead. This ■deed bears date the twenty-first of January, 1876.
Hare filed the bill in this suit about the eighth of September, 1877, in the life time of John B. Hall, against him, John M. Hall and the firm of Thos. H. Allen & Co., taking no notice of Swinson’s claim under the federal judgment. He relies upon his legal rights under his deed, which, although not in possession, he says he cannot enforce on account of the claims of Allen & Co, as they appear of record. He charges fraudulent combination between them and the Halls and Carlton to defeat his claim, in this especially, that the lands were originally bought under the Madden judgment by John M. Hall through Carlton, with the means of John B. Hall and for his benefit; and that to prevent a redemption by himself under his j udgment, the plan of confessing a judgment in favor of Allen & Co. was concocted ; and that by their credit and the redemption from John M. it became impossible for him to redeem without advancing $9,000 ; that the debt of Allen & Co. was fictitious, and that they acted for the protection of John B. Hall against his other creditors. He says that John M. Hall originally paid nothing on the purchase, and that Allen & Co. paid him nothing in redemption, and he offers to reimburse them with proper interest any amount they may have paid. He says the homestead is worth more than $2500, and offers to pay to John B. Hall that amount of its value. He prays that all the proceedings under the Madden redemption, with the judgment in favor of Allen & Co., be set aside and annulled as impediments to his legal rights, and for general relief.
The Halls answered, denying all the charges of fraud •explicitly and in detail. Allen & Co. adopt their answers, make like denials, and claim that their debt was real, and the judgment taken by them was in good faith to secure its payment.
Pending the suit, Swinson, on the second of March, 1880, • after the death of JohnB. Hall, and after he had obtained the marshal’s deed, was allowed to come in as a party and :set up his right under that to the homestead, which appears to have been the land marked off by metes and bounds, and which he had purchased. With regard to that it may be ■said in passing that, although John B. Hall marked it off and seems to have been understood as claiming it for a homestead, and although that seems to be conceded to him in the execution of the Madden judgment, there is no showing that he ever made formal claim of it as exempt in any -of the proceedings.
The cause was heard upon the pleadings, exhibits and ■depositions, the latter .of which were mostly upon the point ■ of fraud. Some of the answers assumed the form of cross-bills, but it is not necessary to notice them more particularly. The pleadings were sufficient to authorize the chanceldor to take cognizance of, and adjust all the equities amongst all the parties before it.
The chancellor held that there was no fraud shown ; that the purchase by Carlton at the execution sale, under the .Madden judgment and the assignment to John M. Hall, and the judgment of Allen & Co. and their redemption under it, with their deed, were all valid; that the complainant, '.Hare, had never offered to redeem from any one under his -own judgment; that the claim of Swinson to the lands purchased by him at the federal sale was superior to either; and •that the complainant was entitled only to the southeastquar•ert of section 35, not contested. A decree was made, adjusting their rights accordingly and quieting titles amongst them.
The complainant, Hare, and also Allen & Co. appealed..
First, as to the appeal of Hare :
it is quite evident that his claim to the homestead is sub-oi’dinate to that of Svvinson, who purchased it under ant 7 L older judgment, the lien of which had never expired. The-levy of the execution under Swinson’s judgment had been made in the life time of John B. Hall, and the venditioni' exponas after his death was permissible. So directly ruled in the case of Barber v. Peay, Ad’r, 31 Ark., 392.
The remaining question in his appeal is, did the chancellor err in failing to find such fraud in the conduct of the Halls, and in Allen & Co., and their agents, as would authorize the court to allow to complainant the benefit of his own purchase on execution upon repayment to them of whatever sums may have been, advanced by John M. Hall, or by Allen & Co., to satisfy the purchase under the Madden judgment..
It is very true that, in equity, fraud need not be shown by direct and positive proof. Circumstantial facts may be-sufficiently strong to raise in the mind of a chancellor a conviction that fraud has been committed, but they must be-more than sufficient to excite a suspicion. They should induce belief. Courts of equity more readily act upon circumstantial evidences of fraud than do courts of law, but the line between them is not well defined. In neither-courts, says Mr. Justice Story, is it insisted that the proofs' of fraud should be positive and express. Each deduces it from circumstances affording strong presumptions; but', courts of equity will sometimes grant relief, upon the-ground of fraud established by presumptive evidence, which» courts of law would not alwaj^s deem sufficient proof to justify a verdict at law, In this sense, he says. Lord Hardwick’»' remark is to be understood, that “fraud may be presumed from the circumstances and conditions of the parties contracting, and this goes further than the rule of law, which ^s, fraud must be proved, hot presumed.” Nevertheless it. must be sufficient to satisfy the mind of the chancellor— “sufficient to overcome the natural presumption of honesty and fair dealing. ” It is neither desirable nor safe to make-the rule any more definite. See JEq. Jurisprudence, secs. 190,190 a.
There is nothing to countervail the- positive testimony that John M. Hall paid the purchase money on the bond of' Carlton with his own means, and not with those of John B., Hall. There was only a suspicion that he was too poor, but no positive proof, even of that. Besides he seems to have had friends of ability to aid him. The natural pi’esumption of honesty and fair dealing is not overcome by the suspicion-of his poverty.
It is positively shown that Allen & Co. acted in good faith» in obtaining the judgment in vacation. The debt was an honest one, actully due from John B. Hall, and they were attempting to collect it by due diligence, and by what tbey may well have believed to be lawful means. They were-striving for a preference, as they might honestly do.
It does arouse some suspicion that the draft which Carlton gave John M, Hall upon the redemption was never presented for payment. It would have been paid if presented. The Messrs. Allen & Co. expected it to come in, and stood ready to pay it. There was certainly no collusion on their-part to consider it a sham. But it was not the duty of the-chancellor, we think, to cast about for plausible or probable reasons for the failure to present it, or to declare the-whole transaction fraudulent ab initio, on failure to find any. The draft was John M. Hall’s own. No one else was interested in it. We cannot say that, because men generally are in haste to receive money due them, the failure to seek it implies dishonesty. There may have been honest reasons-arising from past transactions, and existing conditions of' business, between John M. and the firm of Allen & Co-which induced him to decline the presentation of the draft.. But that would not deprive Allen & Co. of the benefit of their purchase to as full an extent as if the draft were paid. They had already in legal effect paid $4,000 for the redemption, in the credit of their debt. We approve the finding of the chancellor, to the effect that fraud was not satisfactorily shown.
In this connection another point, independent of fraud, Ese to more difficulty. The question presents itself, was the judgment in vacation of any validity to afford the basis of a redemption? And if not, were Allen & Co. entitled to their deed from the sheriff? By the revised statutes and down from the earliest periods of our State government, such judgments might have been taken, before the adoption of the code of civil practice. They were sustained by the courts as ministerial-acts, and were common in jiractice. See Gould’s Digest, Ch., 133, sec. 140; Pickett & Gregg v. Thurston et al, 7 Ark., 399. The civil code of 1868, however, in providing for judgments by confession, omitted this mode of obtaining or suffering them— providing that the person must appear in a court of competent jurisdiction. There is no express repeal of the former act, yet we are of opinion, from the- nature and scope of the code itself and the language of this particular part, that the legislature had it in view to cover all modes of taking judgment by confession, and to drop the former mode of taking them before the clerk in vacation, and that now the practice is not proper. The judgment was void.
But it does not follow that the deed afterward obtained from the sheriff was also. That was not made by virtue of a levy under the void judgment, but upon the levy made under the Madden judgment. JohnM. Hall would have been entitled to the deed if there had been no attempt to redeem? He might have resisted an attempt to redeem. Hare might have sued out execution on his own judgment, and redeemed from him regardless of Allen & Co. Nothing of the kind was done. The transfer of the certificate of purchase to Allen & Co. seems to have been voluntary. John M. Hall does not question the right to the deed, and Hare cannot.
It is insisted for the latter, however, that the supposed efficacy of the judgment by confession, deterred Hare from attempting the single redemption from John M. Hall. this were so, it would seem to us only the misfortune which followed his misapprehension of the law. But it is not plain that he was thus deterred. He obtained his judgment (in the name of Williams & Sons) on the sixteenth day of November, 1874. Carlton had then bought under the Madden judgment. Hare might have redeemed them without, any, even apparent, impediments, and on, afterward, until the fifteenth day of July, 1875, when Allen & Co. took out their execution and made the apparent redemption. He was. an older judgment creditor than the Allen firm, and had slept considerably upon his rights. It was laches to some-extent, imputable under the statute, for although he did not absolutely loose his right to redeem, he lost the preference of age. He might, however, as the redemption of Allen &■. Co. was not valid as such have made the redemption within the year, but took no formal steps to do so, by regular application for the purpose and legal tender. He has no equity against Allen & Co. to cancel their deed or redeem from them.
The appeal of Allen & Co. on their part against Swinson presents no merit. They stand upon the Madden judgment and the deed under it. Both the levy and deed under-which they claim excepts the homestead tract. That is all which the decree gives Swinson, and he is clearly entitled to it under the marshal’s deed. Allen & Co. keep all the rest, they claim. ,
All the plaintiff can claim he might have taken without let or hindrance, the southeast of section thirty-five. The bill would most properly have been entirely dismissed as to him at his. •cost. He cannot complain that the chancellor, on his own ¡application, quieted his title to a tract which no one else ■claimed. We think the chancellor properly adjusted the .•rights of Swinson and Allen & Co., giving the former the •homestead and the latter all the other lands claimed by them under the certificate of purchase to Carlton, and the ¡sheriff’s deed under the Madden execution. | [
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Smith, J.
Butts brought ejectment against Hackney, deriving his title from a patent issued by the United States to one Hickey on the first of November, 1875, and a deed from Hickey and wife to the plaintiff, bearing date November 13, 1877. The defendant put in an answer, settingup title in his wife, who was thereupon made a party defendant. Her chain of title consisted of:
1. A letter of attorney from Hickey, the patentee, to Ed. Green, dated January 6, 1876, expressed to be for valuable consideration and irrevocablé, authorizing his said attorney in fact to sell and convey all lands then owned or thereafter to be acquired by him, and particularly his title to eighty acres of land under the act of congress of June-8, 1872, and the amendatory act of March 3, 1873, entitling him as a discharged soldier in the army of the United States to eighty acres of land in addition to his homestead,, which he had entered and perfected previous to that time,,
2. A deed of conveyance made by Green to one Kline, dated December 7, 1875 ; and
3. A deed from Kline and wife to Mrs. Hackney, of date-September 6, 1875.
The deed from Green to Kline does not purport to have been executed in the name of Hickey, nor by Green as attorney of Hickey; and indeed it could not, since its execution preceded the making of the power of attorney.
But the defendants alleged, in support of their title, that Mrs. Hackney was in possession of the premises at the time-the plaintiff received his deed, and that he had both actual and constructive notice of her possession and title, and knew that the deed by Green to Kline was intended to be made by virtue of said power, and upon a valuable consideration , but the same failed to show on its face that it was-executed by the attorney in fact for Hickey, and also omitted to state the consideration paid by Kline. And it was-prayed that the contract under which Mrs. Hackney purchased might be specifically performed and that the possession of the defendants might be quieted. To this answer the plaintiff demurred, because if invoked the equitable jurisdiction of the court to compel the specific performance of a contract when the pai’ties to the contract were not before the court, and because the court was asked to execute a power which the donee of the power had never attempted to execute.
Green and Hickey were then, by order of court, on defendants’ motion, made co-plaintiffs, and the cause was transferred to equity. By consent the ■plaintiffs entered in ¡short upon the record a general denial of the allegations ■contained in the answer and counter-claim.
Upon these pleadings and exhibits and depositions taken ■on both sides, the cause was heard. And the court decreed the property to Butts.
The plaintiff, being armed with the legal title, must prewail unless the defendants can show a prior right and a superior equity. Woodruff v. Core, 23 Ark., 341; Paty v. Harrell, 24 Id., 40; McIver v. Williams, Ib., 33; Schaer v. Gliston, Ib., 137.
' The instrument standing at the head of the defendant’s ■chain of title contains no words of conveyance, but it is a simple power to sell and convey in the name and behalf of the constituent. In consideration of twenty dollars paid ■down, it is agreed that the power vested in the attorney in fact shall never be revoked and, in favor of said attorney, all ■claim to the proceeds of sale is renounced. It is contended that this instrument, while it may not be effectual to carry the legal title, was yet good as a covenant to stand seized to uses and that the statute of uses executed the use and vested the title in the person beneficially interested. And Stierman v. Cravens, 29 Ark., 558 is cited as decisive of the question.
We are satisfied that Hickey signed the power of attorney, but are not so sure that he knew what he was doing. 'Green and he were total strangers to each other, although both resided in the same county. Green, testifying long afterwards, says he never saw Hickey in his life, and he did ■not understand that he had been named as attorney in fact, but thought the instrument was a deed of conveyance. Hickey says he had no business transactions with Greene, and denies that he ever sold -his additional homestead right to anyone except Butts. In this connection may be noticed1 the following paper, which was produced in evidence :
“Received of Kline and Greene my patent for the southwest quarter of the northeast quarter and the southwest of the northwest, section fourteen, township ten, north of range twenty-one west, and the north half of southwest quarter of section nine, in township nine, north of range twenty-four west, which I have sold to Ed. Greene.
L, H. Hickey.”
The tract last above.described is the land in controversy»
Now Hickey, as we infer, was an illiterate man. He says he can read writing tolerably 'well. Kline does not know whether Hickey can read writing or not, but knows he can write. Kline was a claim agent employed by Hickey to procure-his bounty, back pay and additional homestead, and Greene-was a partner of Kline. The power of attorney and the foregoing receipt were signed on the same day. Several other papers, relating to business which Kline had in hand, were signed by Hickey on that day. Hickey says the signature to the power of attorney and the receipt resemble his handwriting and he cannot swear positively that he never signed them ; that Kline read aloud to him some of the papers that were to be signed, and may have read all of them; that at the time he signed the receipt for his patent, he was not aware it contained anything about a sale of land' to ’ Greene ; that he has no recollection of reading the receipt, but never would have signed it had he known the-contents.
This power of attorney to Kline’s partner purports to-have been acknowledged before Kline, who was a notary public. In fact, it was as much for Kline’s benefit as it. was for Greene’s. It was Kline who advanced the twenty dollars, if any money was paid. He did not inform his client that he had, four months before, sold and conveyed this land to Mrs. Hackney for $115, and had received the consideration money.
The whole transaction wears too questionable a shape and is surrounded with too many suspicious circumstances for us to overturn a direct legal title in order to give effect to the defendant’s equities. Greene was not Hickey’s attorney in fact when he conveyed to Kline, nor when Kline conveyed to Mrs. Hackney, nor is there any clause in the letter of attorney, which, by intendment, can be construed to ratify a previous sale of the land.
And moreover, Greene’s deed is not executed in the name . " of his principal, but m his own name, This is a fatal jection according to all the adjudged cases. Thus in Combe’s Case, 9 Coke, 76 b, “it was resolved that when any has authority, as attorney, to do any act, he ought to do it in his name who gives the authority; for he appoints the attorney to be in his place, and to represent his person ; and therefore the attorney cannot do it in his own name, nor as his proper act, but in the name and as the act of him who gives the authority.” This case has never been shaken from that day to this, but on the contrary, the principle decided has become an established rule in the alienation of real estate. 3 Washburn on Real Prop., (3d Ed.), [*575]; Evans v. Wells, 22 Wendell, 325; Elwel v. Shaw, 16 Mass., 42; same case, 1 Am. Lead. Cas., [*596] and note.
In Lessee of Clark v. Courtney, 5 Pet., 349, Judge Story, commenting on the attempted execution of a power of attorney in the attorney’s own name, says: “The act does not therefore purport to be the act of the principals, but of the attorney. It is his deed and his seal, and not theirs,. This may savor of refinement, since it is apparent that the party intended to pass the interest and title of his principals. But the law looks not to the intent alone, but to the fact whether that intent has been executed in such a manner as to possess a legal validitj^. ”
This rule was followed and applied in this coúrt in State v. Jennings, 10 Ark., 428.
Hickey’s name not being mentioned either in the body of the deed, or in the attestation of it, the deed has no operation against him; and parol evidence of an intention to bind him is not admissible.
There was evidence conducing to show that Hackney had employed the plaintiff to buy Mrs. Hickey’s possibility of dower. And it was argued that the plaintiff had undertaken to perform a trust and ought not to be' permitted, to pury chase for his own benefit. Now this cannot be an express trust, since it is not declared by any writing. Neither can a trust result from the transaction, since Hackney did not furnish the purchase money. It is a mere violation of d parol agreement, for which it is well settled equity will not decree a purchaser to be a trustee. Bispham Principles of Bq., sec. 80. But it is unnecessary to consider this point. There was no averment in the answer that Butts, in purchasing, acted as Hackney’s agent. And proof without allegation is as bad as allegation without proof. Brodie v. 11 Ark., 134; Trapnall v. Burton, 24 Id., 371; Payne v. Flournoy, 29 Ark., 500; Piatt v. Vattier, 9 Pet., 402; Boone v. Chiles, 10 Id., 177; Wilcox v. Hunt, 13 Id., 378.
Let the decree be affirmed. | [
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Mehaffy, J.
The appellee, Frank Squires, recovered a judgment for $10,000 against H. E. Pattison, in the Saline Circuit Court, as the result of an automobile accident. Pattison had a policy of automobile liability insurance issued by the Union Indemnity Company.
After obtaining judgment, an execution was issued in favor of Squires against Pattison and the execution returned unsatisfied. Suit was then brought in the Little River Circuit Court against the Union Indemnity Company and the appellant, New Amsterdam Casualty Company.
While this suit was pending in the Little River Circuit Court against the appellant, suit was brought against the New Amsterdam Casualty Company in the Pulaski Chancery Court by the Independence Indemnity Company. The Independence Indemnity Company had also given a qualifying bond for the Union Indemnity Company. In this suit brought in the Pulaski Chancery Court the New Amsterdam Casualty Company filed answer and cross-complaint in which it made Squires, the appellee here, and others cross-defendants, and asked that they be required to interplead and file claims against the New Amsterdam Casualty Company for adjudication in the Pulaski Chancery Court, and asked that the appellee, Squires, be enjoined from further prosecuting the suit in Little River County against the appellant. The appellant admitted giving a qualifying bond in the sum of $20,000, but denied liability under said bond. A restraining order was issued prohibiting Squires from prosecuting his suit at law in Little River County against the New Amsterdam Casualty Company.
The appellee, Squires, then filed a petition in this court for a writ of prohibition, prohibiting the Pulaski Chancery Court and the special chancellor from interfering with the prosecution of the suit in Little River County. The writ prayed for was issued by this court. Squires v. New Amsterdam Casualty Co., 187 Ark. 467, 60 S. W. (2d) 185.
The New Amsterdam Casualty Company filed answer in the Little River Circuit Court denying all the material allegations in appellee’s complaint. Numerous other persons were, made parties to the suit, and the appellant filed its motion to transfer the case to equity. Response was made to this petition, and the motion to transfer to equity was overruled, but the motion to make other parties defendant was granted. We deem it unnecessary to set out the pleadings with reference to other parties to the suit.
At the trial of this case in the Little River Circuit Court the appellant submitted certain findings of fact and declarations of law, which the court overruled, and judgment was entered in favor of the appellee against the appellant for the sum of $10,447.48 with interest at the rate of 6 per cent, per annum from July 14, 1933', until paid. The appellant thereupon filed a motion for a new trial which was overruled, exceptions saved, and the case is here on appeal.
H. A. Hoover and William Snotzmeier also obtained judgments at the same time, aggregating $8,192.35. It is unnecessary to discuss these judgments and appeals separately.
Appellant’s first contention is that there is no liabilitv on its part because, while it admits filing’ the $20,000 qualifying bond on February 26, 1931, it alleges that thereafter on March 6, 1931, securities were deposited, and that under the terms of the statute these depos its were in lien of the bond executed on February 26th, and that thereafter there was no liability on the $20,000 bond.
The statute provides for the filing of the $20,000 bond, § 5980 of Crawford & Moses’ Digest. Section 5981 of Crawford & Moses’ Digest provides that, in lieu of the bond above mentioned, the insurance company may file the certificate of deposit provided for in § 2 of act 220 of the Acts of the General Assembly of 1913. Section 6 of act 493 of the Acts of 1921, provides that the insurance company shall “file a bond in the sum of $20,000 covering its casualty business with the insurance commissioner, and subject to his approval as provided in § 5980 of Crawford & Moses’ Digest, or in lieu of such $20,000 bond, shall file the certificate of deposit provided for in § 20 of act 220 of the Acts of the General Assembly of 1913'.”
The argument is made that authority under the law to file the certificate of deposit of securities in lieu of the bond, authorized the filing of the certificate of deposit after the bond had been filed, and that the filing of this certificate of deposit of securities took the place of the bond that had theretofore been filed. We do not agree with appellant in this contention. A reasonable construction of the statute is that the insurance company may file the $20,000 bond, or, if it does not do so, it may, instead of filing the $20,000 bond, file the certificate of deposit of securities. The bond is given for one year, and, when filed, it was in lieu of the certificate of deposit of securities, and, there is no authority under the law to withdraw the bond or substitute the certificate of deposit of securities. In other words, the insurance company might have filed a certificate of deposit of securities, or the $20,000 bond. It could have filed either, but, when it filed the bond, it could not thereafter relieve the sureties on the bond so filed by filing the certificate of deposit of securities.
Appellant correctly states that “in lieu of” means “instead of ” or “in place of.” Instead of filing a surety bond for $20,000, the insurance company could have filed the certificate of deposit of securities, but it did not do this; it filed the $20,000 bond.
Appellant argues that it was clearly the intention of the Legislature that only one bond or one certificate should be in effect at any one time. Assuming this to be true, when the $20,000 bond was filed, it was in effect, and by the express terms of the bond it was effective for one year ending March 1, 1932. The statute, which is written into the bond, also provides for an annual renewal of the bond.
Appellant argues that, in lieu of the certificate of deposit, the insurance company may execute a bond for $20,000 conditioned solely for use of claimants on account of policies written in the State of Arkansas. It argues that this bond may be filed in lieu of the certificate of deposit, and, when so filed, the certificate is no longer necessary or effective. That is true. "When the $20,000 bond was filed, it became effective, and it was in lieu of any certificate that might be filed or that could have been filed. There is no law authorizing the filing of certificates of deposits in lieu of a bond that has already been filed. "When either is filed, the law is complied with, and there is no provision in the law for substituting one for the other. If a bond is filed, there is no provision for substituting a certificate and releasing the bond, and, if the certificate of deposit of securities had been filed, there is no statute authorizing substituting a bond for the certificate.
It is true that filing the certificate of deposit would have authorized the Union Indemnity Company to do business in Arkansas without the filing of any bond, but the filing of the $20,000 bond was sufficient to authorize the Union Indemnity Company to do business in Arkansas, and, as stated by the appellant, either was entirely sufficient, and either could 'be filed in lieu of the other, but when one was filed there could be no substitution. There is no evidence of any intention to release the $20,000 bond, and no evidence that the certificate was filed as a substitute.
Appellant calls attention to Massachusetts Bonding & Insurance Company v. Home Life & Accident Co., 113 Ark. 576, 168 S. W. 1062, to sustain its contention that it was the intention of the Legislature that claimants could have recourse to only one bond. The bonds given in that case were for one year periods, just as the bond in this case. One of the bonds covered the period from March 1, 1911, to March 1, 1912, and the second bond covered the period from March 1,1912, to March 1,1913, and the last bond covered a period from March 1, 1913, to March 1, 1914. The court in that case stated: “The issue in this case relates to the liability on the successive bonds, the particular question being which bond is liable, whether it is the bond covering the period during which the policies were written, or the last bond, which is the one covering the period during which the liability to policyholders accrued, or both.”
In that case, three separate bonds had been given, each for a period of one year. The question decided there might have been involved here if, at the end of the period which the $20,000 bond covered, another bond had been given for another year, but we have no such question in this case. There was but one bond given, and it was not displaced or canceled, and there is no evidence that the certificate of deposit of securities was given in substitution or to take the place of this bond.
The $20,000 bond given by appellant, as we have already said, was for one year, and there is no provision for giving another 'bond until the end of that period.
The court, in the case above cited, also said: “‘But it seems to us that a fair interpretation of the legislative will is that the sureties on an annual 'bond are only liable for claims of policyholders which arise and accrue during the period covered by the bond and beyond that period, too, upon all policies issued during the lifetime of the bond until it is renewed.”
It will be observed that the court there held that the insurance company was liable for claims of policyholders, not only those which arise and accrue during the period covered by the bond, but beyond that period too, upon all policies issued during the lifetime of the bond until it is renewed.
The language in § 5980 of Crawford & Moses’ Digest is: “conditioned for the prompt payments of all claims arising and accruing to any person during the term of said bond, by virtue of any policy issued by such company,” etc. The act does not say when a cause of action accrues, but it provides for claims arising and accruing to any person during the term, of said 'bond. A claim might arise and accrue before the cause, of action accrued.
The rights of the parties became fixed at the time of the accident, although there was no cause of action against the appellant until judgment had ‘been obtained against the wrongdoer, and an execution had been returned unsatisfied.
We said in a recent case: “The rights of the parties had become fixed at a time no premium was due. While the cause of action had not accrued, yet the liability existed.” Atlas Life Ins. Co. v. Wells, 187 Ark. 979, 63 S. W. (2d) 533. 'The liability existed in this case when the accident occurred, and the accident occurred during the life of the bond.
This court said: “The question first presented is, when did the claim arise and accrue, within the meaning of the statute and terms of the bond, so as to create liability on the part of sureties on the bond of the company? Did that contingency occur when the property was destroyed, or when the amount of the loss became payable according to the terms of the policy?
“A consideration of the language of the statute leads to the conclusion that the liability of the sureties is fixed when the loss by fire occurs, and not from the date when the amount becomes payable. The happening of that contingency fixes the liability of the principal in the bond upon its policy, and nothing remains to be done but to ascertain and adjust the amount of the loss. The liability is fixed when the loss occurs, though payment does not become due until sixty days later. It follows that the liability of the sureties becomes fixed with that of the principal, and ripens into a mature cause of action when default is made by the principal in the payment according to the terms of the policy.” U. S. Fidelity & Guar. Co. v. Fultz, 76 Ark. 410, 89 S. W. 93.
The happening of the accident in the instant case fixes the liability of the principal in the bond upon its policy, and the claim then arises. It is conceded that the accident and injuries to the three persons, appellees here, occurred during- the life of the bond. The appellees, however, could not maintain a suit against the insurance company until they had obtained judgment against the wrongdoer, and until execution had been issued and returned unsatisfied. We think any other construction of the statute would be unreasonable, and we think the plain meaning of the statute is that for all claims where accidents happened while the bond was effective, there is liability against the insurance company if the wrongdoer is insolvent, although suit is not brought until after the expiration of the bond. The happening of the accident fixes the liability, and the claim accrues at that time. It is immaterial when the cause of action arose if the claim arose while the bond was in effect.
The bond of the appellant provides: “If the said Union Indemnity Company shall promptly pay all claims arising and accruing to any person or persons during said term of one year, by virtue of any policy issued by the said company upon thé life or person of any citizen of the State of Arkansas, or upon any property situated in the State of Arkansas when the same shall become due, etc.”
It will be observed that the bond provides for prompt payment of all claims that arise and accrue during said term of one year. We have already said that the claim arose and accrued at the time of the accident, but it was not due and payable until judgment was had against the wrongdoer and execution returned unsatisfied.
It is next contended by the appellant that the motion to transfer to equity should have been granted. However, the appellant did not raise this question in its motion for a new trial. It made this same contention in the suit in the Pulaski Chancery Court, and this court said: “In the first place, liability under the bond was not admitted; but, on the contrary, was specifically denied. An admission of liability was essential and neces sary before the cross-complaint could be treated as a bill of interpleader or a bill in the nature of a bill of interpleader.” Squires v. New Amsterdam Casualty Co., 187 Ark. 467, 60 S. W. (2d) 185.
In the instant case liability under the bond was not admitted, but on the contrary was specifically denied. If appellant had admitted its liability in the sum of $20,000, the amount of its bond, and offered to pay, then its suit in the Pulaski Chancery Court would have been proper, and all the parties interested would have been brought in; but when a defendant is sued and says that it does not owe any one on the bond, then it has no right to bring in all parties who assert claims against it, but it can only do this when it admits liability.
We find no error, and judgment is affirmed. | [
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Smith, J.
This is a suit by appellant to enforce a materialman’s lien, and there appears to be no substantial conflict in the testimony, which is to the following effect: F. P. Pierce, operating as Pierce Lumber Company, was engaged in the retail lumber business, and in connection with that business sold building supplies, much of which he had bought from appellant over a period of several years. These supplies were sold on an open account, which appears to have been mutually satisfactory. The lumber company was regarded as a good customer. J. W. McLeod was the appellant’s traveling salesman and representative in that territory.
Pierce testified that he had an arrangement with a building contractor under which he “guaranteed the maximum amount of cost (of building material) for the benefit of selling my stuff, ’ ’ but that he occasionally took building contracts to be performed by himself. He took such a contract to build a residence for H. C. Benjamine. Before the. completion of the building Benjamine decided that he wanted an “Areola heating plant” installed. This was in addition to the original building contract. It so happened that McLeod was in that territory at that time, and he and Pierce went with Benjamine to figure on the cost of installation. The. necessary measurements and calculations were made and the price-was agreed upon. Benjamine inquired at the time as to whom payment should be made, and stated that he was prepared and willing to make, payment then and there. McLeod answered: “Make it to Mr. Pierce; he is our representative. We have sold goods to him for a long time, and we are not afraid of him.” The heating plant was installed, and Benjamine paid Pierce for it. Pierce was adjudged a bankrupt, and failed to .pay appellant, whereupon this suit was brought to enforce a lien.
It was shown by appellant that McLeod was a traveling salesman, having authority only to receive and transmit orders for acceptance, to be filled after acceptance, and that he had no authority to make collections. It was shown, however, that McLeod had made collections which had been received and credited by appellant, but this was done by the receipt and transmission of checks payable to appellant’s order.
The decree recites a finding of fact substantially as stated above, and this finding is not contrary to a preponderance of the evidence. Indeed, it appears to be supported by the undisputed evidence. Upon this finding the court held that appellant was estopped to deny that payment had been made, and denied the claim for a lien or for a judgment against Benjamine for the debt, and this appeal is from that decree.
For the reversal of this decree, cases are cited defining the authority ordinarily possessed by traveling salesmen. Of these the case of United States Bedding Co. v. Andre, 105 Ark. 111, 150 S. W. 413, is chiefly relied upon. In that case a traveling salesman made a contract to post advertisements of the articles which he was selling. In holding that the salesman had no authority to make the contract, it was there said: “The purpose for which a traveling salesman is employed is to solicit orders and make sales of goods; unless he is specially authorized to do so, he has no implied authority to do any act other than is usually done by other salesmen of like character; that is, to do those things and make those agreements which are necessary and usual to accomplish the purpose of this agency. Being employed for one purpose, he has no authority to do another, either actual or implied.” For the reason stated it was held that the salesman had no authority to make the contract to post the advertisements.
But this opinion states the law to be that the agent has the authority to do those things which are essential to effect the purpose of the agency, and while an agent may not have the authority to make collections of the purchase price upon taking an order for future delivery, he does have the authority to make agreements as to the price, the time and place of delivery, and the terms of payments to be made.
In the volume on Agency in Restatement of the Law (American Law Institute), it is said, at § 55 thereof, that: “Unless otherwise agreed, authority to contract for a purchase or sale includes authority to enter into nego tiations for and to complete the purchase or sale, including therein usual or other appropriate terms, and, if a writing is required or is usual, to execute such writing. ’ ’
In Clark & Skyles on the Law of Agency (% 245) it is said: “Where an agent is employed generally to sell goods, as incident to his general authority, he. has power to fix the terms of sale, including the time, place and mode of delivery, the price, quality, and quantity of the goods, and the time and mode of payment, to the extent at least of what is customary and not extraordinary.”
It was not shown to be contrary to any custom, nor does it appear to have been extraordinary, for McLeod to have directed Benjamine to make, payment to Pierce, appellant’s customer and representative to whom the material was sold, and to whom it was delivered, and whose account was represented as being satisfactory, and to whom other material had been sold and delivered by appellant.
In the very recent case of McMillan v. Marathon Oil Co., 188 Ark. 937, 68 S. W. (2d) 473, it was said that: “We have many times held that one dealing with an admitted agent had the right to presume, in the absence of notice to the contrary, that he is a general agent, clothed with authority co-extensive with its apparent scope.”
McLeod was an admitted agent clothed with the actual authority to sell the heating plant, and we think the court was warranted in finding, as was found, that it was within the apparent scope — if not within the actual scope — of the agent’s authority to agree upon the manner of payment. Harrison Nat. Bank v. Williams, 3 Neb. (Unoff.) 89 N. W. 245; Putnam v. French, 52 Vt. 402, 38 Am. Reps. 682; Mechem on Agency, vol. 1 (2d ed.), §§ 854 and 871; International Harvester Co. v. Smith, 51 Fla. 220, 40 Sou. 840; Fayetteville Wagon Co. v. Kenefick Construction Co., 76 Ark. 615, 88 S. W. 1031; Lovett v. Eastern Oil Co., 68 W. Va. 667, 70 S. E. 707; Superior Mfg. Co. v. Russell, 127 Ga. 151, 56 S. E. 296.
It was said, in the case of A. J. Chestnut Co. v. Hargrave, 177 Ark. 687, 7 S. W. (2d) 800, that: “In short, the general rule in this State is that the principal is bound by the acts of Ms agent which are within the real or apparent scope of his authority,” and the cases there cited fully sustain the rule announced.
It requires no citation of authorities to support the conclusion that, if the debt was paid, there could be no judgment therefor, nor lien to enforce its payment. We conclude therefore that the decree is correct, and it is affirmed.
McHaney, J., dissents. | [
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Johnson, C. J.
Appellant instituted this suit in the Garland Circuit Court against appellee, alleging, that appellee was, at all the times hereinafter stated, and is now, a duly practicing physician and surgeon; that in the year 1926 appellant employed appellee to perform, and that he did perform, a major operation upon her abdomen or abdominal cavity; that, at the conclusion of said operation, appellee carelessly and negligently left remaining in her abdominal cavity a ball of gauze 1% inches in diameter, and that appellee carelessly and negligently closed the incision into her abdominal cavity without first removing. said ball of gauze and thereby inclosed same within her body; that thereafter appellee continued to treat appellant as physician and surgeon, but carelessly and negligently withheld from appellant any and all information or knowledge in reference to her abdominal cavity containing said foreign substance; that appellant had no information, and did not know, that said foreign substance was left in her abdominal cavity until 1933, at which time she was compelled to undergo another operation at Texarkana for the removal of said foreign substance. Appellant further alleged continuous pain and suffering from the date of the operation in 1926 until the date of the second operation in 1933, and laid damages in the sum of $35,000.
Appellee interposed, and the trial court sustained, a demurrer to appellant’s complaint upon the theory that the alleged cause of action accrued at the time of the operation in 1926, and was barred by limitation three years thereafter. Judgment was entered dismissing ap pellant’s complaint, and this appeal is prosecuted to reverse this judgment.
But one question is presented for determination: Is appellant’s alleged cause of action barred by the three-year statute of limitation?
In Field v. Gazette Publishing Co., 187 Ark. 253, 59 S. W. (2d) 19, we announced the applicable rule of limitation in tort actions as follows: That in all tort actions arising in this jurisdiction, not otherwise limited by law, and where the means of information in reference to the cause of the injury were equally accessible to each party, and there was no fraudulent concealment of the cause or extent of the injury, the three-year statute of limitation was applicable and barred the action. The rule thus stated is the inevitable conclusion deducible from the following language which was employed in the Field case. “As we understand this record, appellant does not contend that appellee fraudulently concealed any fact with reference to his injury, and he does not contend that appellee had knowledge of facts or information other than those well known to appellant.” Thus it certainly appears that the alleged facts in the instant case do not necessarily fall within the rule of limitation as announced in the Field case.
By his demurrer, appellee admits that he carelessly and negligently left remaining in appellant’s abdominal cavity a ball of gauze 1% inches in diameter, and continued to treat her thereafter without disclosing to her this unfortunate condition until more than three years had elapsed. It is the well-established doctrine in this jurisdiction that a practicing physician and surgeon must exercise that degree of care, skill and learning ordinarily possessed and exercised by members of their profession in good standing in the community, and that they must exercise reasonable care in the exercise of their skill while attending their patients. Gray v. McDermott, 188 Ark. 1.
It cannot be said as a matter of law that appellee did not know that this foreign substance was left in appellant’s abdominal cavity because, under the rule just stated, he was required to exercise ordinary care in the performance of said operation, and, when thus measured, might have known that the foreign substance was left remaining in appellant’s body; if, in the exercise of ordinary care and skill, appellee knew that the foreign substance was left in appellant’s abdominal cavity, it then and thereupon became his imperative duty to apprise appellant of this fact and not conceal it from her until the statute of limitation had attached. Appellee had the duty resting upon him not only to perform the operation with ordinary care and skill, but also to make immediate disclosure to appellant of any injury inflicted by or through his carelessness and negligence in the performance thereof, and his failure to make this disclosure was a continuing act of negligence.
Not only is this case distinguishable from the Field case in the particulars just mentioned, but it is otherwise distinguishable in this: Appellee performed the operation upon appellant and knew, or by the exercise of ordinary care might have known, that the foreign substance was left remaining in her abdominal cavity. The information thus known to appellee was unknown to appellant, and the duty rested upon appellee to make known to appellant all facts within his knowledge in reference to the injury. The cause of action alleged in appellant’s complaint grows out of a breach of duty which the law implies from the physician’s and surgeon’s employment in undertaking to perform the operation. It was a constant and daily obligation to use ordinary care and skill, and if, by omission or negligence, he has left a foreign substance within the walls of the abdominal cavity at the operation, it behooved him to afford timely relief. The neglect of this duty imposed by a continuous obligation was a continuous and daily breach of the same. Gillette v. Tucker, 67 Ohio 106, 65 N. E. 865, 93 Am. St. Rep. 639; Bowers v. Santee, 99 Ohio 361, 124 N. E. 238; Groendal v. Westrate, 171 Mich. 92, 137 N. W. 87, Ann. Cas. 1914B, 906.
Cases from several jurisdictions have been cited in support of the doctrine that in all tort actions the cause of action arises upon the infliction of the injury and tend ing to support the contention that the applicable statute of limitation cannot be tolled or held in abeyance in its application. Among the cases cited are Johnson v. Nolan, 105 Cal. App. 293, 288 Pac. 78; Schmidt v. Esser, 183 Minn. 354, 236 N. W. 622, 74 A. L. R. 1312.
Upon examination, it is found that a number of cases cited, notably Johnson v. Nolan, are based upon specific statutes -which expressly provide that all malpractice suits shall and must be brought within a certain period of time after the infliction of the injurj7-, but we have no such statute in this State. Other cases cited are based upon general principles of law, but we believe they are not sound in principle, therefore decline to follow them.
Our conclusion is therefore that appellee’s acts of leaving the ball of gauze in appellant’s abdominal cavity and his failure to apprise appellant thereof were such fraudulent concealments and continuing acts of negligence as toll the statute of limitation until appellee performed his duty of removing the foreign substance or appellant learned or should have learned of its presence.
It results from what we have said that the trial court erred in sustaining appellee’s demurrer to appellant’s complaint, and for this reason the judgment will be reversed and remanded, with directions to overrule the demurrer and for further proceedings not inconsistent with this opinion. | [
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Butler, J.
The facts in this case, which are undisputed, are that the treasurer of Saline County had been depositing the funds of the county, prior to December 4, 1930, in the “Benton Bank & Trust Company.” At that time the treasurer was George Pish, who served as such until his death on June 20, 1931. The Benton Bank & Trust Company became insolvent, and on said 4th day of December, 1930, the Benton Trust Company was organized and took over the assets of Benton Bank & Trust Company. An agreement was signed by the depositors of the insolvent bank, including the county judge and county treasurer, to the effect that the county deposits in the old bank should be frozen in the new bank to be paid in installments, beginning December 20, 1930, when ten per cent, of the deposits should be paid, the remainder to be paid in four installments — ten per cent, on March 1,1931, ten per cent, on June 1,1931, ten per cent, on September 1, 1931, and sixty per cent, on January 1, 1932. "When the old bank closed its doors and the new bank took over its assets and assumed its liabilities, the county had on deposit the sum of $28,647, all in one account, which included the funds belonging to the county as such and to its various school and road districts. "When George Pish, the county treasurer, died, the appellant, S. H. Pace was appointed as county treasurer on July 7, 1931, and entered into the discharge of the duties of his office on that date. On July 14 he executed his official bond in the sum of $30,000 with the appellant company as surety thereon. On the same day the county court of Saline County designated the Benton Trust Company as one of the depositories, conditioned that it would execute a depository bond as provided by law. On the same day, pursuant to the order of the court, said trust company filed with the county clerk its bond signed by Robert P. Lambeth, H. W. Thompson, L. B. White, W. J. Cox, H. W. Finkbeiner, A. Y. Martin, J. A. Cunningham, and B. A. Fletcher. This bond was examined by the county judge and the treasurer and approved by an indorsement in writing on the bond signed by them:.
On July 22, 1931, the administratrix of Mr. Pish paid to S. H. Pace, county treasurer, the. sum of $14,-591.07, which constituted all the county funds in the possession of Pish as treasurer at the time of his death. This payment was made by check drawn by the administratrix in favor of S. H. Pace, county treasurer, on the Benton Trust Company. Pace issued his receipt for said sum, presented the check to the drawee bank which accepted the same and credited Pace with said sum as county treasurer. Thereafter Pace, made deposits in the Benton Trust Company in his official capacity, drawing checks against the account until December 29, 1931, when that bank became insolvent and closed its doors. On this date the balance due Pace, as county treasurer was the sum of $10,750.79. He filed his claim for the sum stated with the liquidating agent of the bank, no part of which has yet been paid.
Suit was brought by the State for the use and benefit of Saline County to recover said sum from. S. H. Pace, county treasurer, and the surety on his official bond, and the signers of the depository bond executed as aforesaid. The court found in favor of the plaintiff against Pace and his surety and dismissed the case against the sureties on the depository bond. Both the State, of Arkansas and Pace and his surety have appealed.
The first question for our consideration is, was the bond executed by the appellees a sufficient compliance with the statute to exonerate the treasurer and his surety from loss of the funds in the depository bank which became insolvent? The first legislation on the subject of county depositories which we need notice is act No. 163 of the Acts of 1927, which the appellants contend was the law governing the subject at the time of the execution of the depository bond involved, and that the bond executed complied with the requirements of that statute. Section 1 of that act provided that any bank or trust company desiring to become a depository should make a proposition to the county court, which court should, twenty days before the commencement of the temí of court at which the proposition should he received and acted upon, give notice by publication in a newspaper published in the county of its intention to receive bids from the banks desiring to become the depository of the county funds; that the bank or banks proposing to become depositories should file with the clerk of the court a sealed bid stating the rate of interest to be paid for the county funds, and that the bid should be accompanied by a certified check of not less than $250, etc. Section 4 of the act provided for the execution of a bond by the successful bidder, payable to the county “with not less than five solvent qualified sureties, who shall own in this State real estate unencumbered and of value as great as the amount of said bond, * * * which may be approved by the county court.”
It is contended by the appellants that later legislation on the subject of depository banks did not serve to alter the existing law. Act No. 151 of the Acts of 1929 was entitled, “An Act to Repeal Act No. 42 of the Acts of 1927 of the Statutes of Arkansas, to Provide for the Approval of County Depository Bonds by the County Treasurer, and for Other Purposes. ” It is argued that as act No. 42 of the Acts of 1927 does not refer to the subject of county depository bonds, but provides merely that the Governor should have authority to relieve any public officer and his bondsmen from the payment of any public funds which said officer might have had on deposit in any bank in this State that has been designated as State or county depository and which has become insolvent, therefore, act No. 151 of 1929, not having- mentioned act No. 163', could not be deemed to be an amendment of said act. Section 1 of act No. 151 expressly repealed act No. 42. Section 2 of that act dealt with a different, subject, namely, that mentioned in the title, “To Provide for the Approval of County Depository Bonds by the County Treasurer, and for Other Purposes.” This, by implication, amended that part of act No. 163 providing that depository bonds should be approved by the county court, and substituted “a surety bond” for the personal bond of act 163. It is contended that this violates § 23 of art. 5 of the Constitution, which provides that no law shall he revived, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended, or conferred shall be reenacted and published at length. This section has no application to implied amendments by later legislation to existing laws, and § 2 of act No. 151 does not offend against it. Perkins v. Du Val, 31 Ark. 236; Little Rock v. Quindley, 61 Ark. 622, 33 S. W. 1053; Boyer v. State, 141 Ark. 84, 216 S. W. 17.
Appellants also insist that act No. 139 of the Acts of 1931, purporting to be an amendment of act No. 151 of 1929, does not affect act No. 163; first, because no mention is made in act No. 139 of act No. 163 of the Acts of 1927. The title of that act is: “An Act to Amend § 2 of Act No. 151, Approved March 20, 1929.” The pertinent part of that act is as follows:
“No award by any county court or judge thereof, to any bank or banks of custody of any county funds shall be effective until each such bank receiving such award shall file with the county clerk a bond conditioned for the faithful and safe holding and keeping of all county funds placed with it and the due payment of the same according to law; nor until such bond shall have been approved b3r the county court or the. judge thereof and the county treasurer.
“Such bond may be executed by a corporate surety company authorized to do business in this State, or may be signed by not less than ten solvent, qualified sureties, who shall own in this State unincumbered real estate of the value of the amount of the bond over and above the debts and exemptions of the sureties. Each surety shall make an affidavit giving the description of the real estate owned by him and its value over and above his debts and exemptions. Any citizen of the county may appeal to the circuit court from any approval of the bond in the same manner and to the same effect as now provided b3r law in the approval of official bonds.”
It is true no reference is made to act No. Í63 of the Acts of 1927, but it deals with the same subject as § 4 of that act and provides for a different number of sureties, prescribing how their qualifications as such may be shown. While being’ entitled “An Act to Amend § 2 of Act No. 151,” it in reality impliedly amended § 4 of act No. 163; and this may be done, althoug’h no mention of the former act is made in the act which impliedly amends it. Porter v. Waterman, 77 Ark. 383, 91 S. W. 754.
It is further argued by counsel for the appellants that act No. 139 was repealed by act No. 222 of the Acts of 1931. That act contains two sections. Section 3 is as follows: ‘£ That act 151 approved March 20, 1929, of the acts of the General Assembly of the State of Arkansas and published on page 766 of vol. 1 of the Acts of the General Assembly of the State of Arkansas at the session of 1929 and entitled: £An Act to Repeal Act 42 of the Acts of 1927 of the Statutes of Arkansas to Provide for the Approval of County Depository Bonds by the County Treasurer and for Other Purposes,’ be and the same is hereby repealed.” 'Section 2 is the emergency clause, giving the reasons for the passage of the act and stating the conditions which made its immediate effect important. In effect, it states the inability of a county to secure surety bonds and the resulting danger of the loss of county funds because of this. By § 2 of act No. 151, it was surety bonds only which could be accepted to guarantee the deposits of county funds.
We are of the opinion that it was not the intention of the Legislature to repeal act No. 139 of the Acts of 1931 by the passage of act No. 222 only a few weeks later. In dealing with repealing acts the same, rules govern as to the construction of statutes generally. The cardinal rule for the construction of statutes is that the legislative intent should be ascertained, which may be done by construing every part of the statute together with reference to all laws which relate to the same-subject as a single system, so as to give effect to the legislative intent and to carry into effect the general purpose of the svstem.
The subject of county depositories is an important one, and the Legislature, from time to time, has attempted to safeguard public funds by requiring depository bonds to be executed. It is clear that tbe Legislature deemed tbe qualification and number of sureties named in act No. 163 of the Acts of 1927 insufficient to effect that purpose. By § 2 of act No. 151, supra, individuals as sureties were discarded, and surety companies only were deemed sufficiently solvent to execute any good bond. Because of the collapse of values and the uncertainty of all our business affairs, it was thought wise to provide ('by act No. 139, supra) that bonds might be executed by surety companies as provided in § 2 of act No. 151, and also by individuals — ten in number — who should make a showing of their solvency by sworn statement. Certainly, it was not the intent of the Legislature by the enactment of act No. 222, supra, to restore the provisions of act No. 163, supra, relative to the execution of depository bonds which experience had proved insufficient, but only to make certain the provisions of § 2 of act No. 139, passed at the same session as act No. 222. This intention is more readily discoverable from an examination of § 1 of act No. 222, quoted supra, which discloses the specific purpose of that act, i.e., to repeal a definite and certain law as it appears on a certain page and volume of the Acts of the General Assembly of 1929. If it had been the intention of the Legislature to include in this repeal act No. 139, supra, it would have so indicated by adding after the number of the act the words “and all acts amendatory thereto,’.’ or words of similar import.
Where a statute expressly repeals specific acts there is a presumption that it was not intended to repeal others not specified. In such cases there is an implied approval of the statutes not specified, as well as of an intention to leave them undisturbed. 59 G. J. 909, § 512. In the case of State v. Young, 30 S. C. 399, vol. 9, S. E. 355, it was insisted that the repeal of an act necessarily carries with it all amendments made to said act. In overruling that contention, the court said: “We know of no inexorable rule of law which peremptorily requires that every act which is entitled as ‘an amendment’ to a former act must therefore be carried back, and ‘ingrafted’ upon that act, so as to become part and parcel of it, for all purposes. It is well settled that the title is no part of the act. ‘ There is nothing in a name. ’ * * * The question must always be one of intention, to be reached by considering’ the character and objects of the acts.” The doctrine of that case is in line with our own decisions. Arkansas Tax Com. v. Crittenden County, 183 Ark. 738, 38 S. W. (2d) 318.
It was the dutjr of the county treasurer to require that the number of the securities be ten in number, and that they give evidence of their qualification in the manner pointed out in the statute, § 1, act No. 139, Acts of 1931. Failing in this duty, he remains guarantor for the payment of the county’s funds deposited by him.
The contention that the funds belonging ,to the county are to be classed as a preferred claim is based on the theory that the bond executed by the Benton Trust Company and the sureties created an express trust by the use of the following language: ‘ ‘ * * * and promptly pay, upon presentation of all checks drawn upon said depository by the county treasurer so long as said funds shall be in said depository to the credit of the treasurer of said county and keep all funds of said county faithfully in the hands of said bank and account for, according to law, all monies deposited by said county treasurer.” As authority for this contention, we are referred to the cases of Grossman v. Taylor, 185 Ark. 64, 46 S. W. (2d) 13; Albright v. Taylor, 185 Ark. 401, 47 S. W. (2d) 579; Royal Arch Ben. Ass’n v. Taylor, 187 Ark. 531, 60 S. W. (2d) 915. We do not review these cases, for they clearly do not support the contention of appellants. The instruments involved in those cases which were held to create an express trust were clearly indicative of that intention. The bond in this case is an ordinary depository bond, the .sole purpose of which was to guarantee the payment of all money deposited to the account of the county treasurer, and the court correctly found that it should be classed as a common claim.
We agree with the appellees that act No. 163 of the Acts of 1927 is not the controlling statute, but that act No. 139 of the Acts of 1931 is the law prescribing the execution of depository bonds. This, however, does not exonerate the sureties, for, by the execution of the bond and the delivery to the proper officials, they have estopped themselves to question its binding effect. Talley v. State, 121 Ark. 4, 180 S. W. 330; School Dist. v. Massie, 170 Ark. 222, 279 S. W. 993. The bond was made for the benefit of Benton Trust Company in which appellees were stockholders and directors. “A party who has had the benefit of an agreement cannot be permitted in an action founded upon it to question its validity. It would be in the highest degree inequitable and unjust to permit a defendant to repudiate a contract, the benefit of which he retains. While this is not strictly a contract inter paries, it is the same in legal effect, and the. same principle applies hereto.” Wasson v. State, use Lonoke County, 187 Ark. 680, 61 S. W. (2d) 679.
The contention of the appellees that the bond has no validity because it was not isigned by all of the directors of the bank as it had been agreed would be done is without merit. The evidence goes no further than to show an agreement among the appellees themselves, and there is no proof that this agreement was communicated to the county judge or treasurer, nor were they advised that the bond was not to become, effective until signed by all eleven directors. As a.matter of fact, it was delivered as a fully executed instrument, and it was upon the faith of this bond, according to the undisputed evidence of the treasurer, that the deposits were made.
There is likewise no merit in the appellees’ contention that there was no breach of the conditions of the bond. The evidence is certain that from and after the 20th day of February, 1931, all the funds deposited by the treasurer were new money, for on that date it is admitted that Mr. Fish, who was then the treasurer, was overdrawn in a small sum. Therefore, none of the funds from that date on could have, been frozen deposits, as claimed by appellees, because all of these the bank had permitted to be withdrawn. Another reason why this contention is untenable is that when Mr. Pace took over the office of treasurer, the administratrix of Mr. Fish delivered to him a check on the bank for the amount of funds in the hands of Mr. Fish as treasurer when he died. The bank accepted this check and passed the amount thereof to the credit of Pace without informing him that any of the funds of the county were frozen or that the check was to replace that character of funds which had been withdrawn.
It is mentioned by appellees in their statement of the case, but not contended in their brief, that, because the bond uses the words “funds of the county,” their liability extends no further than for repayment of the amount due the county arising from the general revenues and did not include liability for school and road district funds which were included in the account of the county treasurer. The answer to this is that the words by which their liability is sought to be limited are substantially the same as contained in the statute. In providing for the award to banks of the custody and the execution by them of bonds, the words “county funds” are used, which is, of course, equivalent to “funds of the county.” These words jvere used in the act ;so as to include not only the funds belonging strictly to the county, but all such as it collected and preserved as the agent of school and road districts within the county. Any other interpretation would wholly nullify the purpose of the act. Similar language in the bond as is in the statute must be construed as we construe the language of the statute in order to carry out its purpose. Huffstuttler v. State, 183 Ark. 993, 39 S. W. (2d) 721.
It follows from the views expressed that the execution of the depository 'bond, not being in conformity to the statute, did not relieve the treasurer as guarantor for the safety of the county deposits and that he and the surety on his official bond are primarily liable to the State for the use of Saline County; and that appellees are secondarily liable to S. H. Pace and the appellant company for the amounts they pay out on the judgment.
The decree of the trial court is therefore affirmed as to Pace and his surety and.reversed as to appellees, with directions to enter a decree in accordance with this opinion.
Mehaffy, J.
I agree to that part of the decree affirming the decree of the lower court, but dissent to that part reversing a portion of lower court’s decree. In other words, I think the decree should be affirmed. | [
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Mehaffy, J.
Appellant and appellee were candidates for the office of county and probate judge of Clay County in the. rnn-off Democratic Primary held August 28, 1934. The Democratic Central Committee canvassed the votes, and certified that the appellee received 1,284 votes and the appellant 1,262.
The. appellant filed a complaint in the Clay Circuit Court contesting the certification and nomination of the appellee, and alleged in substance that, according to the certificate of the central committee, the appellee had received 22 votes more than appellant. He alleged that in Oak Bluff Township, the vote, as tabulated by the central committee, gave appellant 57 votes and the appellee 349 votes. He further alleged that 200 of the-votes for the appellee in said township, were cast by persons who did not have legal poll tax receipts made out in the manner and form required by law; that 25 persons voted for appellee in said township who claimed to have arrived at 21 years of age since the last assessing time, and that they did not subscribe to affidavits stating such facts to be true. He also alleged that 50 votes in said township were cast for appellee by persons who had no poll tax receipts. Substantially, the same allegations were made as to Blue Cane Township, Lidell Township, Wilson Township and Payne Township. He then alleges that he received a majority of 200 of the legal votes cast in the election for the office of county and probate judge.
There were eight paragraphs in the complaint, and paragraph No. 8 stated that the appellee was ineligible for the office of county and probate judge, that he had been convicted of embezzlement in the Federal court.
On motion of appellee, the court struck out paragraph 8. This, the appellant alleges, was error. Paragraph 8 did not state a ground for contest. A candidate contesting a primary election must show, in order to succeed, that he has received a majority of all the votes cast at such primary election. The real issue is, which candidate received a majority of the legal votes cast? If his competitor was ineligible, this would not entitle the contestant to receive the certificate of nomination, unless the contestant received a majority of the- legal votes. Bohlinger v. Christian, ante p. 839; Swepston v. Barton, 39 Ark. 519; Collins v. McClendon, 177 Ark. 44, 5 S. W. (2d) 734. The trial court therefore did not err in striking paragraph 8 from appellant’s complaint.
The appellee, also filed a demurrer to plaintiff’s complaint alleging that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and dismissed plaintiff’s complaint.
The second amendment to plaintiff’s complaint, which was stricken out hy the court, was simply an amendment making the complaint more specific, and plaintiff should have been permitted to file the amendment.
The appellant prosecutes this appeal to reverse the judgment of the court in striking’ out paragraph 8, in refusing appellant leave to amend his complaint, and in sustaining a general demurrer to the complaint. The complaint stated facts sufficient to constitute a cause of action. The. real question in the case, is whether the contestant received a majority of the legal votes. If he did, he is entitled to the nomination, and, if he did not, he is not entitled to the nomination although the other votes were cast for an ineligible candidate.
The appellant alleged that he was a qualified elector, and that he and the appellee were candidates for the office, of county and probate judge, and that the certificate of nomination was given to appellee, and that appellant received more legal votes than appellee. These allegations were sufficient to make a prima facie case.
Section 3773 of Crawford & Moses’ Digest, provides: ‘ ‘ If the complaint is sufficiently definite to make a prima facie case, the judge shall, unless the circuit court in which it is filed is in - session or is to convene within thirty days, call a special term,” etc.
This court has said: ‘‘ The pleadings, in an election case, should be sxifficiently specific to give reasonable information as to the grounds of contest. The statute provides that the contest shall be begun in a certain number of days, and this court has held that, after the time for filing a contest has expired, the contestant cannot so amend his complaint or petition as to set forth any new cause of action. He can, however, even after the. time' has expired, amend his complaint by making it more definite and certain as to any charge in his original complaint, and, if a motion to make more specific is filed, it would be his duty to make, the amendment.” Robinson v. Knowlton, 183 Ark. 1127, 40 S. W. (2d) 450.
It is also said in the Robinson case: “Since such contest, is generally held not to be a civil action subject to the rules of pleading in actions at law, but to be a special statutory proceeding, varying in its nature as well as in the sufficiency of the pleadings, according to the statutes of the different States, the same strict technical accuracy in pleading is not usually required as in civil action inter partes.” LaFargue v. Waggoner, ante p. 757.
The court therefore erred in sustaining the demurrer, and erred in refusing to permit appellant to amend his complaint, but did not err in striking out paragraph 8 of plaintiff’s complaint.
Appellee prosecutes a cross-appeal and urges that the court erred in finding that B. B. Spence made, the supporting affidavit. B. B. Spence testified that he lived in Piggott, Arkansas, and that he signed the affidavit in Mr. Winton’s office. He was asked: “Did you swear to it,” and he answered, “Yes, sir.” When asked: “Before whom?” he answered: “Mr. Ray Winton.” He also testified that he never made any formal oath, but explained this by stating that he did not hold up his hand. He met the notary public on the- street and told him that he had signed the affidavit.
When Spence was recalled, he was questioned at length, and said he did not remember very distinctly about what happened. The certificate of the notary public showed that Spence had signed and sworn to the affidavit. The court thereupon held that the evidence showed that Spence had made the affidavit.
The weight of the evidence and the credibility of the • witnesses were for the sole determination of the trial court, and we have many times held that in cases in the circuit court the finding of fact by a trial court is as binding here as the verdict of a jury. Holman v. Armstrong, 187 Ark. 958, 63 S. W. (2d) 339.
We recently said: ‘‘When a case is submitted to the trial judge, his finding of fact is as conclusive as the finding of a jury.” Bridges v. Shapleigh Hdw. Co., 186 Ark. 993, 57 S. W. (2d) 405. American Ins. Co. v. Brown, 184 Ark. 978, 44 S. W. (2d) 346.
The judgment on cross-appeal must be affirmed, and the judgment on appeal reversed and remanded with directions to overrule the demurrer, permit plaintiff to file his amendment, and for further proceedings according to law and not inconsistent with this opinion.
It is so ordered. | [
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Mehaffy, J.
In May, 1927, William Peterson entered into a written contract with the county judge of Union County and the commissioners of public buildings of said county to erect a courthouse according to certain plans and specifications. Peterson was to receive as compensation, the sum of $692,500, which was paid by warrants drawn on the county treasury and payable out of the county general revenue funcl. $95,000 was payable on demand, $45,000 payable August 1st each year from 1928 to 1940, inclusive, and the remaining warrant of $12,500 payable on August 1, 1941.
A suit was filed by taxpayers of Union County to restrain the county judge and commissioners of public buildings and the contractor from proceeding further in the erection of the court house. This suit was decided October 24, 1927, and this court held that the contracts and warrants were valid.
There is still due, according to the complaint in this case, $327,500, maturing at the rate of $45,000 on August first of each year for the years 1934-1940, inclusive, and $12,500 maturing August 1, 1941.
On July 24, 1934, a contract was made and entered into by and between Union County, acting through the county judge, who was authorized by resolution of the. levying board of said county, and Eoy E. Smith as trustee for E. N. Garrett and others, being the owners and holders of all the outstanding court house warrants.
The contract recites, among other things, that all of the courthouse warrants mentioned above have been paid and canceled except the warrants maturing in the years 1934-1941, inclusive, in the sum of $327,500; that these warrants are now owned by persons on whose behalf Eoy E. Smith is acting. The contract also recites that the revenues of the county have, since the date of the first contract, decreased to such an extent that they are insufficient to pay the maturities of said court house warrants, and to pay the necessary operating expenses of the county government.
It is proposed to refund the warrants so as to make them payable as follows: the warrants due August 1, 1934, to August 1, 1938, inclusive, $20,000.25; the war rants due August 1, 1939, to August 1, 1946, $25,249.59; and the warrant due August 1, 1947, $25,502.03. That is, one warrant is payable annually as above stated until the entire debt is paid. The outstanding warrants now are as follows: August 1, 1934, to August 1, 1940, $45,000. That is, $45,000 is due annually until 1940, and on August 1, 1941, there will be due $12,500. It is proposed to exchange these warrants for the above warrants of smaller amounts.
When the case involving the validity of the contract to build the courthouse, and the validity of the warrants issued in pa3nnent of same was decided by this court, the court held that the contract and warrants were valid. Lake v. Tatum, 175 Ark. 90, 1 S. W. (2d) 554.
The appellant contends that Amendment No. 10 to the Constitution of the State of Arkansas impliedly repeals §§ 1994, 1996, 1997 and 1998 of Crawford & Moses’ Digest. These sections provide for the calling in of outstanding warrants, and the first part of Amendment No. 10 provides for conducting the counties on a sound financial basis, and prohibits the making of certain allowances and certain contracts. It is unnecessary to discuss this first part of the amendment because the warrants issued in payment of the courthouse have already been held valid by this court. The amendment, however, contains the following section:
“Provided, however, to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, counties, cities and incorporated towns may issue interest-bearing certificates of indebtedness or bonds with interest coupons for the pa3unent of which a county or cit3r tax in addition to that now authorized, not exceeding three mills, may be levied for the time as provided by law until such indebtedness is paid.”
It is contended by the appellant that the sections of Crawford & Moses’ Digest above referred to are repealed b3;' Amendments Nos. 10 and 17 to the Constitution. These amendments to the 'Constitution do not repeal the sections of the digest mentioned. While Amendment No. 10 requires the affairs of counties and municipalities to be conducted on a sound basis, and prohibits making debts -beyond tlie revenue of the county, it also provides that, to secure funds to pay the indebtedness outstanding at the time of the adoption of the amendment, counties and municipalities may issue interest-bearing certificates of indebtedness for the payment of which they may levy a tax, not to exceed three mills, in addition to the tax now authorized by law.
Union County is not proposing to issue interest-bearing evidences of indebtedness or to levy a tax in addition to that now provided by law, but the only thing it is undertaking to do is to make the annual payments smaller so that they may be met and paid from the revenue of the county. There is no constitutional provision prohibiting a contract of this kind.
If it were sought or intended to levy an additional tax this could only be done by complying with the provisions of Amendment No. 10. Union -County is not undertaking to construct, reconstruct or extend any county courthouse or county jail, and not undertaking to levy a tax as provided in Amendment No. 17. In order to issue interest-bearing evidences of indebtedness or levy a tax, these amendments to the Constitution must be complied with, but, as the county is not undertaking to do any of the things mentioned in these amendments, they have no application. These amendments were discussed at length in the case of Carter v. Cain, 179 Ark. 79, 14 S. W. (2d) 250, and it would serve no useful purpose to discuss them further here.
The decree of the chancery court is correct, and therefore affirmed. | [
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Mehaffy, J.
This action was begun by appellee in the Jackson Circuit Court against the appellant, Coca-Cola Bottling Company, to recover for personal injuries caused by drinking a part of a bottle of Coca-Cola which contained foreign substances, alleged to be glass and hairs.
It was alleged that appellee purchased from the Missouri Pacific Restaurant at Newport, Arkansas, a bottle of Coca-Cola which had been manufactured, bottled and delivered to the said Missouri Pacific Restaurant by the appellant, Coca-Cola Bottling Company, which was to be offered for sale as a beverage for human consump tion by the said restaurant; that, instead of being wholesome and good for human consumption, said bottle of Coca-Cola purchased by appellee had been negligently manufactured and negligently bottled, and was unwholesome, poisonous, and wholly unfit for human use, in that said bottle contained putrid and foreign substances, among which were hairs, having the appearance of bristles from a brush, and pieces of broken glass, poisonous and deleterious, which had been negligently permitted to enter and remain in said bottle, by the appellant; that appellee drank of said bottle of Coca-Cola without knowledge of its unwholesome condition, and did not know that it contained any foreign or unwholesome substances until he had drunk about one-half of the contents of said bottle; that, by reason of taking the said unwholesome Coca-Cola in his stomach, appellee immediately became violently ill, cramping and sick at his stomach, and was so violently ill that it was necessary for him to go to bed for care and medical attention. Further allegations were made with reference to appellee’s injuries.
The appellant filed answer denying the allegations of the complaint, and pleaded the contributory negligence of appellee. There was a trial by jury, and a verdict and judgment for $1,000. The case is here on appeal.
The evidence of appellee tended to show the facts alleged in the complaint, and the testimony offered by appellant tended to show that there was no carelessness or negligence in the manufacturing and bottling of the Coca-Cola.
Only two questions are presented for our consideration. The appellant contends, first, that the court erred in admitting the bottle from which appellee drank the alleged impure Coca-Cola, and, second, that the verdict is excessive. There is no contention that the evidence is not sufficient to support a verdict for the appellee.
When appellee offered the bottle in evidence, the appellant objected. Appellant states that the case falls squarely -within the rule announced by this court in Hooks v. General Storage & Transfer Company, 187 Ark. 887, 63 S. W. (2d) 527. It is stated in that case: “According to the uncontradicted testimony in this case, the photographs of the two trucks which were in the collision were not taken until a week or ten days after the collision, and at that time appellant’s ice truck had been fully repaired.” The photographs in that case were inadmissible because the truck had been repaired, and the photograph did not show the condition of the truck at the time of the injury. If the photographs had been taken before the trucks were repaired, and if the evidence had shown that at the time the photographs were taken there had been no change, the photographs would have been admissible. In the instant case, the appellee testified that he took the bottle that he drank from and poured the Coca-Cola out, and that naturally it rinsed some of the contents out, but there is some in there yet; that he corked the bottle up and put it away. When he was asked if it was sealed in that condition, he said: “Absolutely.” On cross-examination he was asked if it had some Coca-Cola in it, he said “Yes,” and he poured it out. He also testified that he put a top on it; that several persons saw him do this, and he took it up to Mr. Claude Erwin, and it had been in Mr. Erwin’s safe ever since that time; that the bottle was in the same condition it was when he delivered it to Mr. Erwin.
Mr. Erwin testified that the bottle was given to him by Adcox, and that it had been in his safe until the morning of the trial, when he brought it to the trial, and that it was in the same condition that it was when Adcox gave it to him.
It was not error for the court to permit the bottle to be introduced in evidence.
The Alabama court, in passing on a similar question, said: “We do not think the trial court was in error in permitting the introduction of the bottle, and the decomposed rat over the appellant’s objections. The appellee identified the bottle and its contents. The testimony is not to be excluded because the witness does not speak with positive assurance.” Coca-Cola Bottling Company v. Barksdale, 17 Ala. App. 606, 88 So. 36.
In the case of Walker Hospital v. Pulley, 74 Ind. App. 659, 127 N. E. 559, the court held that it was not error to introduce in evidence a piece of gauze taken from the sinus.
The Nebraska court held that, under the circumstances outlined, bottles and labels from defendant’s line of drug stores tend as circumstantial evidence to throw some light on the issue of sales, and were therefore admissible in evidence. Thamann v. Merritt, 107 Neb. 602, 186 N. W. 1003.
“Plaintiff offered in evidence a sample of corn claimed to have been taken from the car actually delivered to him. This sample was received in evidence. There is some controversy as to the identity of this sample. We think, however, plaintiff’s evidence of identity was sufficient to warrant the court in receiving it.” McGuire v. Chambers, 148 Minn. 57, 180 N. W. 1013. See also Ranney-Davis Merc. Co. v. Morris, 223 Pac. 887; Keith v. Drainage Dist., 183 Ark. 384, 36 S. W. (2d) 59; Miss. River Fuel Corp. v. Senn, 184 Ark. 554, 43 S. W. (2d) 255; Sloan v. Newman, 166 Ark. 259, 266 S. W. 257; S. L. S. F. Ry. Co. v. Horn, 168 Ark. 191, 269 S. W. 576; Graves v. Jewel Tea Co., 180 Ark. 980, 23 S. W. (2d) 972.
It is next contended by the appellant that the verdict is excessive. The appellee testified that in drinking the Coca-Cola he swallowed some of the hair and glass; that he was made sick, treated by a physician about six weeks, suffered great pain, and still suffers. This evidence was practically undisputed.
There is no rule by which we can measure damages for pain and suffering.
“Verdicts of juries are not set aside on account of the amount of recovery unless the amount is excessive. If the plaintiff was entitled to tecover, and the amount of the verdict was a fair compensation for the injuries complained of, the verdict of the jury should be permitted to stand.” Ward v. Blackwood, 48 Ark. 399, 3 S. W. 624.
“The measure of damages for a physical injury to the person may be broadly stated to be such sum, so far as it is susceptible of estimate in money, as will compensate plaintiff for all losses, subject to the limitations imposed by the doctrines of natural and proximate con sequences, and of certainty, which he has sustained by reason of the injury, including compensation for his pain and suffering, for his loss of time, for medical attendance and support during the period of his disablement, and for such permanent injury and continuing disability as he had sustained. Plaintiff is not limited in his recovery to specific pecuniary losses as to which there is direct proof, and it is obvious that certain of the results of a personal injury are insusceptible of pecuniary admeasurement, from which it follows that in this class of cases the amount of the award rests largely within the discretion of the jury, the exercise of which must be governed by the circumstances and be based on the evidence acl•dueed, the controlling principle being that of securing to plaintiff a reasonable compensation for the injury which he has sustained.” 17 C. J., 869, et seq.
We are of opinion that the verdict of the jury is not excessive. The issues were submitted to the jury on proper instructions, and its verdict must be permitted to stand.
We find no error, and the judgment is affirmed. | [
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Butler, J.
The appellant, H. A. Mustain, shot and killed one Ray Wilson, who, together with others, was stealing sugar cane from Mustain’s patch. He was indicted for the crime of murder in the first degree and convicted of involuntary manslaughter. On the trial he interposed as a defense that the homicide was the result of a misadventure, and therefore excusable, and complains here of instruction No. 8, given by the court on motion of the State, insisting that the giving of this instruction was error. That instruction is as follows: “You are instructed that, if you find from the evidence beyond a reasonable doubt that the defendant armed himself with a shotgun and went to his cane patch and lay in wait for the deceased and his companions, with the specific intent to take their lives, and fired the shots with the intent to carry out that attempt, then he is precluded from interposing the defense of justifiable or excusable homicide.”
Counsel for appellant argues that this instruction placed the burden of proof upon the appellant to prove that he did not arm himself and lie in wait at the cane patch with the intent to take the life of the deceased, and that he did not fire the fatal shot with the intent to carry out that purpose. The instruction is not open to this criticism, for it definitely places upon the State the burden of proving all of these facts beyond a reasonable doubt.
It is further argued that this instruction precluded the appellant from offering any testimony relating to his defense and casts upon him the burden of proving his innocence. Neither is this objection well taken. The instruction goes no further than to preclude the appellant from interposing the defense of excusable homicide if the jury should find from the evidence beyond a reasonable doubt that the fatal shot was fired under circumstances which would make the slayer guilty of murder in the first degree. Appellant did, in fact, introduce testimony without objection, which, if accepted in its entirety by the jury, would have established his innocence. The instruction was not prejudicial for the reason that the jury found in the killing none of the elements necessary to constitute murder in the first degree, but that the homicide was involuntary manslaughter. Por this reason we deem it unnecessary to set out the testimony tending to establish the crime of murder in the first degree.
As noticed, the defense was that the killing’ was accidental and incident to a lawful act done with due care. This defense was submitted to the jury by full and fair instructions given at the request of the appellant. To establish his defense, he testified that he had discovered that his cane was being stolen; that he went to the cane patch on the afternoon of the homicide and waited a short distance away in order to discover and apprehend the thieves; that after a time, from the movements of the cane and voices heard, he discovered the thieves were depredating again; that he saw one by the name of Mc-Mahen coming toward him with a quantity of cane in his arms; that witness called upon him to halt, but, instead . of doing so, lie turned and fled in the opposite direction; that when lie did this witness fired his shotg’un to the left of McMahen to frighten and stop him, but with no purpose of actually shooting him. Witness did not see Wilson and did not intend to shoot him or any one else.
There was testimony on behalf of the State tending to contradict that of the appellant and, in effect, that appellant was armed with a shotgun loaded with buckshot; that he had stated to a neighbor during the afternoon of the day of the shooting’ that he intended to kill any one he caught in his cane patch; that, after the shooting, when appellant had notified the sheriff and carried.him to the cane patch, appellant stated to a deputy who was present that when he saw a person coming out of the patch with cane in his arms he called to him to stop and when this person did not obey he shot him and then shot again; that then he saw another boy, and if he had had another shell he would have shot him, too. This testimony refutes the contention of the appellant that the verdict of the jury was contrary to the law as given by the court and to all the evidence.
Another ground urged for reversal set up in the motion for a new trial and supported by the affidavit of the foreman of the jury was that the verdict was the result of a compromise by which some of the jurors were forced to, and did, surrender their conscientious convictions. On this ground it is sufficient to say that the only evidence offered was the affidavit referred to, which was incompetent under § 3220 of Crawford & Moses’ Digest. This section, providing in substance that grounds for a new trial cannot be established by the testimony of a juror except where the verdict was made by lot, has been frequently construed and upheld by this court. Among the decisions is that cited by the appellee, Moon v. State, 161 Ark. 234, 255 S. W. 871.
No prejudicial error appearing and the testimony being sufficient to sustain the verdict, the judgment of the trial court is affirmed. | [
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Johnson, C. J.
The unfortunate marital troubles of appellant and appellee were thoroughly and sufficiently aired in the case of Kirby v. Kirby, 184 Ark. 532, 42 S. W. (2d) 995, and the curious are referred thereto for a complete history of the case. It will be noted in the opinion referred to that appellee was awarded the custody of the infant, Nelda Jean Kirby, with the right of visitation at all reasonable times by appellant, and appellant was directed to pay to appellee for the maintenance and support of said infant $15 monthly. To the credit of appellant, it may be said these payments have been promptly met up to this time. Subsequently to the rendition of the opinion, as aforesaid, appellant filed an independent suit for divorce, and a decree in this behalf was duly entered. This proceeding* was instituted by appellant against appellee in the Pike County Chancery Court, seeking a modification of the order previously referred to awarding the custody of the child to appellee and directed appellant to contribute $15 per month for the child’s maintenance. Testimony was heard upon the motion by the chancellor, and the previous order was modified to the extent of awarding to appellant the custody of the infant one week out of four, and by reducing the allowance of maintenance from $15 per month to $12.50 per month. Appellant, conceiving that he received insufficient relief, has appealed here.
It is the well-settled doctrine in this State that the chancellor, in awarding the custody of an infant child or in modifying such award thereafter, must keep in view primarily the welfare of the child, and should confide its custody to the parent most suitable therefor, the right of each parent to its custody being of equal dignity. Act 257 of 1921. Caldwell v. Caldwell, 156 Ark. 383, 246 S. W. 492; Jackson v. Jackson, 151 Ark. 9, 235 S. W. 47.
In Weatherton v. Taylor, 124 Ark. 579, 187 S. W. 450, we approved the rule as stated in 9 R. O. L., p. 476, as follows: “A decree fixing the custody of a child is, however, final on the conditions then existing, and should not be changed afterwards unless on altered conditions since the decree, or on material facts existing- at the time of the decree but unknown to the court, and then only for the welfare of the child.”
Without setting out in detail the testimony adduced upon the hearing for the modification of the previous order, it suffices to say that the only material changes established in the circumstances of the parties and the child are that the child is now almost four years of age and was only an infant at the time of the previous order, and the father or appellant has remarried.
We are unwilling to overturn the chancellor’s finding of fact in regard to the custody of the child upon the showing made. It is the uniform practice in this court that a chancellor’s finding- of fact will not be overturned on appeal unless found to be clearly against the preponderance of the testimony. Eureka Stone Co. v. First Christian Church, 86 Ark. 212, 110 S. W. 1042; Scott v. McCraw, Perkins & Webber Co., 119 Ark. 135, 177 S. W. 901; Vaughan v. C. R. I. &. P. Co., 120 Ark. 37, 179 S. W. 165.
No error appearing, the decree is affirmed. | [
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McHaney, J.
Ezra C. Lane, now deceased, husband and father of the appellees, on March 1,1917, took out an insurance certificate or policy with appellant, Illinois Bankers’ Life Association, a mutual assessment company, for $1,000. The other appellant, in 1929, reinsured the business of the association, and, if liability exists on this policy, is indebted to appellees in said sum. Premiums were payable quarterly in advance with thirty days of grace. All premiums were paid prior to that which became due October 1, 1932, but it was not paid within the grace period or at all, and, by the terms of the policy, it lapsed and became void, but for the matters hereinafter set out.
The policy contained in § 9 a disability provision that: “Upon receipt of satisfactory proof to the Association that the insured has been totally and permanently disabled by accident * * * and will be thereby continuously prevented for life from doing labor, or the prosecution of any kind of business, then the association will pay, upon due and sufficient proof, one-half of the face of this policy, and the remainder to the beneficiary at the death of the insured, the policy having been continued in force.” Section. 10 reads as follows: “Proof of Death or Disability. — Proof of death or disability of the insured must be furnished the association at its home office upon forms furnished by the association within six months after the death of the insured or the commencement of the total and permanent disability. No action at law or in equity shall be maintained on any policy of insurance issued by this association or recovery had un less such, proof be so filed or unless the action be commenced within one year after the death of the insured.”
The insured died February 25, 1933. To excuse the failure to pay said premium due October 1, 1932, appellees alleged and proved, to the satisfaction of the trial court, that in August, 1932, the insured, who had for five or six years suffered from a shin ulcer on ,his right leg, ran into some barbed wire which re-injured the old sore on his right leg and also injured his left leg, from which he became totally and permanently disabled; that on September 14, 1932, the daughter, Mrs. Huggs, wrote and mailed to appellant a letter, of which the following is a copy kept by her:
“Arkadelphia, Arkansas, September 14, 1932.
“Illinois Bankers’ Life Assurance Co., Monmouth, Illinois.
“Gentlemen: I am writing you in regards to
Ezra C. Lane, who holds policy No. 73137. He was injured on or about the 11th day of August, 1932, when he was driving up some calves and ran into some barb wire and hurt his legs, and has not been able to work to amount to anything since, and the doctors say he will never be able to work. So I want you to mail to me at once the form for Ezra C. Lane to fill out making his proof according to policy.
“Yours truly, Mrs. Hila M. Huggs.”
She received no reply to that letter and appellants say it was never received, and that the first they ever heard of a disability claim was when this suit was filed. On February 24, 1933, the day before her father’s death, Mrs. Huggs wrote appellant the following letter: “Times has been so hard with us that we neglected to pay my father’s (E. O. Lane) dues, and now that we have work, would like to take them up. Please let me know what I can do about them.” This letter was answered by appellant on March 1, advising that the policy had lapsed on October 1, 1932, and that it could be reinstated by payment of back premiums and furnishing proof of insurability. Suit was filed on April 17, 1933. Trial resulted in a decree for appellees for the amount sued for, with penalty and attorney’s fees.
For a reversal it is first urged that total and permanent disability was not shown by a preponderance of the evidence. Appellants seem to concede that, if the insured became totally and permanently disabled within the provision of the policy before October 1, 1932, and gave notice thereof, then the failure to pay the premium due October 1 ($4.38) would not justify it in lapsing the policy, because it held in its hands at that time $500 belonging to the insured. As to the disability, we think the evidence sufficient to support the court’s finding. It is undisputed that the insured had suffered from a chronic sore leg for five or six years; that the old sore had practically healed; that on August 11, 1932, he injured both legs by accidentally coming in contact with barbed wire; that his legs became very bad thereafter, his physician saying that he was permanently disabled thereby. It is true he continued to perform the duties of night watchman at a sawmill until October 14, when he was apparently discharged for going to sleep while on watch, and that some of his neighbors did not know of his condition, but this does not conclusively negative total and permanent disability. We cannot say the court’s finding in this respect is against the preponderance of the evidence.
It is next argued that, even though the insured became disabled, still appellees cannot recover because no notice and no proof thereof were furnished appellants. Mrs. Huggs testified very positively that she wrote the letter of September 14, 1932, asking for forms to make the proof, and that she wrote a second time later, but received no answer. The assistant secretary of appellant testified that said letters were not received. The policy required proofs to be made on forms furnished by the company, and if in fact, as the court found, appellee did notify it of the disability and asked for forms which it failed or refused to furnish, it is in no position to complain because no proofs were made. As said by this court in Eminent Household of Columbian Woodmen v. Gaunt, 128 Ark. 626, 194 S. W. 700: “The company had the right to require formal proof on blanks to be furnished for that purpose, but it was the duty of the company to furnish the blanks, and it did not do so. This formal proof could have been furnished only on the blanks of the company, and, as it did not furnish them for that purpose,- it can not now complain of its own omission to demand a form of proof which it could have secured only by doing something which it failed to do.” While there is some doubt that any notice of disability was ever given, we are unwilling to say that the finding of the court is against the weight of the evidence, even though the letter of February 24 failed to mention the fact that the former letter had not been answered.
It is nest urged that there should have been an administrator of the insured’s estate, and that he was a necessary party. We think not. It is not shown that there are any debts. The complaint alleged that appellees are the sole heirs at law. There was no proof that such is the fact, but it is shown that Della Lane is the widow and that Mrs. Huggs is the daughter of the insured. As such, they had the right to maintain this action. Section 1, Crawford & Moses’ Digest; Masson v. Woodmen of Union, 164 Ark. 568, 262 S. W. 648; Metropolitan Life Insurance Company v. Fitzgerald, 137 Ark. 366, 209 S. W. 77.
Other contentions are that the decree should have designated the amount each was entitled to, and that no penalty and attorney’s fee should have been allowed. The first was not raised in the court below. Appellees recovered the full amount sued for, so the penalty and fee were properly allowed.
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Mehaffy, J.
On April 11, 1932, the appellant, I. E. Moore, filed suit in the Lincoln Chancery Court, alleging that the appellees, J. P. Price, Lonie Price and A. J. Price were indebted to appellant in the sum of $13,111.67, evidenced by two promissory notes, one dated January 9, 1930, for $9,251.79, payable'on November 1, 1931, bearing interest at 10 per cent, from date until paid and the other note dated May 22, 1931, due November 1, 1931, for the sum of $439.26 with interest at 10 per cent, from maturity, this last note being executed by J. P. Price; and a verified account for merchandise for the balance of the $13,111.67. To secure the payment of the indebtedness, J. P. Price and Lonie Price executed a mortgage on real estate and personal property.
Appellees had delivered to appellant 93 bales of cotton, worth approximately $3,000, to be credited on the indebtedness.
It was also allegue! that practically all the personal property mentioned in appellant’s complaint and covered by the mortgage sued on had been moved off the premises, and that the crops were being disposed of by appellees, and that all of the security was insufficient to pay the indebtedness.
It was also alleged that the appellees were insolvent and had no other property with which to meet their obligation; that they were fast exhausting their resources, making it entirely impossible for the appellant to collect his indebtedness. Appellant prayed judgment for the amount due him. for a foreclosure of his mortgage, and that a receiver be appointed to take charge of the property covered in the mortgage.
Appellant also, on April 11, gave notice to the appellees that he would, on April 14th at 10 o’clock a. m., apply to the Lincoln Chancery Court for the appointment of a receiver. On April 14th the appellees filed a demurrer to that part of the complaint asking for the appointment of a receiver. The chancellor heard the application for the appointment of a receiver, and denied the petition, and refused to appoint a receiver, under the authority of act 253 of the Acts of the General Assembly of 1931.
Thereafter, on April 18th, while the suit to foreclose the mortgage on the property was pending in the chancery court, appellant brought a suit in replevin in the circuit court of Lincoln 'County, for the same personal property. A demurrer and answer were filed to the complaint in the circuit court. In the answer appellees moved that the cause in the circuit court be transferred to the chancery court and consolidated with the foreclosure suit. This motion of appellees was granted, and the cause transferred to the chancery court.
When the suit was brought in the circuit court, appellant gave bond, and an order of delivery was issued and served. The appellees executed a bond and retained possession of the property.
There is no dispute about the indebtedness, and it is unnecessary to set out the evidence. After a hearing, the chancery court gave judgment in favor of the appellant against the appellees for $10,787.18. This was the amount found by the court to be due after giving appellees credit for the 93 bales of cotton, and said judgment was declared by the court to be a first lien on the real and personal property described in the mortgage. The lands were ordered sold, and the personal property, at the value fixed by the court, was delivered to the appellant.
The appellant claimed that he was entitled to the usable value of the personal property or rent on the personal property during the time it was kept by appellees after the replevin suit was begun. A petition was filed by' appellant, alleging that appellees had refused to de liver the following personal property: “First: 1 disc harrow and disc plows valued at $200. Second: Corn valued at $100. ThirdCotton seed valued at $20. Fourth: Hay valued at $30. ’ ’
The chancellor then rendered a final decree, holding that at the time the property was rebonded there were 100 bushels of corn of the value of $50 and no cotton seed, and $30 worth of hay, making $80, and gave judgment for that amount. The chancellor also found that the disc harrow and plows were tendered to appellant, and that he declined to accept them.
The case is here on appeal, and the appellees prosecute a cross-appeal as to that part of the decree giving judgment for $80 for the corn and hay.
Appellant first contends that he had a right under §§ 7403, 7410 and 8654A of Crawford & Moses’ Digest to prosecute his suit in replevin. He contends also that the mortgagee is the holder of the legal title and can maintain replevin on default. He cites and relies on Perry County Bank v. Rankin, 73 Ark. 589, 84 S. W. 725, 86 S. W. 279, and Van Pelt v. Russell, 134 Ark. 236, 203 S. W. 267. The statute itself settles this question. It reads as follows: “In the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto and the right of possession.”
The mortgagee has the legal title, and, because of that, may bring a suit in replevin, but that is not for the purpose of getting possession of and keeping the personal property, but it is only to get possession for the purpose of selling under the power in the mortgage. The mortgage contains a power of sale, and the mortgagee could, under that mortgage, have brought replevin, obtained possession of the property for the purpose of selling it under the power in the mortgage. He could have sold both the real property and the personal property under the power of sale in the mortgage.
Where a mortgagee brings replevin for personal property on which he has a mortgage, the only purpose of the replevin suit is to obtain possession for the purpose of selling it. This might have been done; the mortgagee might have pursued this remedy, but he elected to bring liis suit to foreclose not only on the real property, but tlie personal property also. When this suit to foreclose was brought, the chancery court acquired jurisdiction as to both the real and personal property. The appellant realized that the chancery court had jurisdiction as to all the property, and made application to the chancery* court for the appointment of a receiver. If his petition for the appointment of a receiver had been granted, he, of course, would not contend that he could then go into circuit court and bring replevin for the property; and he could not do so when the chancery court denied his petition for a receiver.
A mortgagee has three remedies, either one of which he may pursue. He may bring a suit at law on the notes or accounts, or he may advertise and sell under the power of sale in the mortgage, or he may bring a suit to foreclose in chancery court. But when chancery court acquires jurisdiction, it has the right to conduct the matter to an end, and decide all matters involved in the chancery suit.
We recently said: “Circuit courts and chancery courts are of equal dignity; and in cases where there is concurrent jurisdiction, the court that first acquires jurisdiction has the right and jurisdiction to conduct the matter to an end without interference of another court of equal dignity.” Wright v. LeCroy, 184 Ark. 837, 44 S. W. (2d) 355.
The rule is stated in Corpus Juris as follows: “Where two actions between the same parties on the same subject and to test the same rights are brought in different courts having concurrent jurisdiction, the court which first acquires jurisdiction, its power being adequate to the administration of complete justice, retains its jurisdiction and may dispose of the whole controversy, and no court of co-ordinate power is at liberty to interfere with its action. This rule rests upon comity and the necessity of avoiding conflict in the execution of judgments by independent courts, and is a necessary one because any other rule would unavoidably lead to perpetual collision and be productive of most calamitous results.” 15 C. J. 1134.
Bailey on Jurisdiction, page 61, states: “In the distribution of powers among’ courts it frequently happens that jurisdiction of the same subject-matter is given to different courts. Conflict and confusion would inevitably result unless some rule was adopted to prevent or avoid it. Therefore it has been wisely and uniformly determined that whichever court, of those having such jurisdiction, first obtains jurisdiction, or, as is sometimes said, possession of the cause, will retain it throughout to the exclusion of another.” The same rule is announced in “Courts and Their Jurisdiction” by Works, pages 68 and 69.
There, is no question here about the power of the chancery court being adequate to administer complete justice. If the chancery court had appointed a receiver, it would have been entirely satisfactory to the. appellant. It had the power to do this, the power to give adequate and complete justice, and its jurisdiction was invoked for that purpose, but the chancery court decided that a receiver should not be appointed. It had ample means to protect the property, and appellant finally did get all the property through the order of the chancery court.
There is no dispute about the indebtedness and the mortgage. The appellant, however, contends that he is entitled to $25 for each of the mules retained by the appellees when they gave the bond to retain the property. This question of the right to the possession of the property, and the right to have a receiver appointed, were both questions properly before the chancery court, and decided by that court on the facts introduced in evidence, and we think the chancellor’s finding is supported by the evidence.
Appellees prosecute a cross-appeal in which they urge that the judgment for $80, for corn and hay, be reversed. We think, however, that the finding’ of the chancellor on this question is also supported by the evidence.
It follows from what we have said that the judgments must be affirmed both on appeal and cross-appeal. It is so ordered. | [
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Humphreys, J.
This is an appeal from a decree rendered by a special chancellor subsequent to the term at which he was' elected. The special chancellor was elected by the bar at the November term to try this case which had been continued and set down for trial on the 4th day of the succeeding March term of court, upon announcement by the regular chancellor that he was disqualified to try the case.
The special chancellor appeared on the 9th day of March which was the 4th day of the. March term, and was sworn in and tried the case without objection and took it under advisement, and at a subsequent day of the March term rendered the decree.. Under § 21 of article 7 of the Constitution of Arkansas, the special chancellor’s authority expired with the adjournment of the November term at which he had been elected. This court said in the case of Goodbar Shoe Company v. Stewart, 70 Ark. 407, 68 S. W. 250, that “The powers of the special chancellor ended with the term at which he was elected, and, as the record does not show that he was elected during the term at which the- decree was rendered, the appeal must be dismissed. Constitution 1874, art. 7, § 21; Dansby v. Beard, 39 Ark. 254.”
Following these authorities, the appeal in the instant case is dismissed. | [
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Humphreys, J.
Appellee brought suit against appellant in the circuit court of White County to recover damages for the death of his son, Owen McKinney, who was struck by appellant’s train through the alleged carelessness and negligence of its employees in operating same. The alleged negligence consisted in the failure of its employees to exercise ordinary care to protect appellee’s son or to prevent injuring him while he was crossing appellant’s track south of the town of Beebe, along a well-defined footpath crossing from the east to the west side thereof.
Appellant filed an answer specifically denying any negligence on its part in killing appellee’s son, but alleging that the cause of his death was the result of the boy’s own negligence.
The cause was submitted upon the pleadings, evidence introduced by each party, and the instructions of the court, which resulted in a verdict and consequent judgment against appellant in the sum of $3,000, from which is this appeal.
The railroad track runs north and south through the town of Beebe. About a quarter of a mile south of the depot, a well-defined footpath crosses the track in a diagonal direction from the northeast to the southwest. This footpath had been used by the public for many years in crossing from one side of the track to the other. It was not a road crossing at which the statute requires railroad companies to sound their whistle or ring their bell in approaching same. At this point, appellant maintained three tracks on a dump some ten or twelve feet high. The main tracks were about eight feet apart, one being two feet higher than the other, and the side track east of the other two some six feet lower than the main tracks.
The testimony introduced by appellee tended to show that appellee’s son left home on the morning of July 29, 1932, to visit a boy who lived on the opposite side of the tracks; that, as he approached the dump or tracks, traveling in a southwest direction, an engine and tender running north was approaching the footpath appellee’s son was walking in, and that it crossed the footpath just as his son reached the crest of the dump, and that, in passing around it onto the next track, a fast south-bound freight train, without giving any warning of its approach, struck the boy and cut off one leg and an arm, and broke the other leg in two places, from which injuries he died in about two hours; that the north-bound engine prevented him from seeing the south-bound train, and that the noise therefrom prevented him from hearing the south-bound freight as it approached; that the boy was struck and fatally injured while in the footpath.
The evidence introduced by appellant tended to show that appellee’s son, in company with a companion, had decided to catch the south-bound freight for Little Rock and from there to go to an uncle who lived in the northwest; that, in an effort to catch the moving train, he caught hold of a box car some ten or twelve cars in the rear of the engine and was thrown under the train and injured, not in the footpath, but some considerable distance north of it; that the north-bound engine and tender had neared the depot before the south-bound freight reached the footpath, and that the trains did not meet at or near the footpath, and that same could not have prevented appellee’s son from seeing the south-bound freight as it approached the footpath.
At the conclusion of the testimony, appellant requested an instructed verdict on the ground that the testimony was insufficient to show liability on its part. Of course, if the undisputed evidence showed that, after the engine passed appellee’s son, he tried to board the fast-moving freight train and was thrown under it and injured, there would be no liability on the part of appellant, and the evidence would be insufficient to support the verdict and judgment, or, if the undisputed evidence showed that appellee’s son stepped in front of the south-bound freight when he could have seen or heard it as it approached the footpath, the evidence would be insufficient to support the verdict and judgment. The evidence was, however, in conflict on both points, and presented questions for determination by the jury and not by the court. The jury found adversely to appellant’s theories, and it is bound by the finding.
Appellant contends, however, that appellee’s son was a trespasser on its right-of-way and not entitled to any protection except not to wantonly injure or kill him after discovery. It is argued that the statutory signals are not required to be given by railroads in approaching footpaths; that railroads are required to sound whistles and ring bells only when approaching a road or public crossing. Although this is true, it does not follow that railroad companies owe no degree of care to pedestrians who pass over its tracks on well-defined footpaths with its knowledge and implied consent for a long period of time. This court said in the case of St. Louis, I. M. & S. Ry. Co. v. Hudson, 86 Ark. 183, 110 S. W. 590, that: “The question in dispute was whether or not the railroad company, at the time of appellant’s injury, was permitting the public to use the path through the yards. If it was, then appellee enjoyed the license, with the balance of the public, of traveling the path, and the employees of the company owed her the duty of ordinary care not to injure her while crossing the tracks.” This declaration finds its origin in the common law, which is in full force and effect in this State. The rule is general and has application where the signal statute has none. In 22 R. C. L., the rule is stated in the following words: “It is clearly the duty of a railroad -company at common law to give notice of the approach of trains at all points of known or reasonably apprehended danger. And failure to do so will render the company liable where such failure was the proximate cause of injury to one not guilty of contributory negligence.” See also White on Personal Injuries, vol. 2, pp. 1288-1290 and 1293; Thompson on Negligence, vol. II, § 1725; Houston & Texas Central Railroad Company v. Boozer, 70 Tex. 530.
The evidence is ample to sustain the verdict -and judgment under the rule of law declared in the authori ties referred to, and, under this rule, the instructions given by the court relative to liability were correct.
Appellant also contends for a reversal of the judgment because the court instructed the jury as to the law of comparative negligence. It is argued that there was no negligence at all on the part of the appellant; hence no negligence on its part to compare with the negligence of appellee’s son. The record, according to the evidence introduced by appellee, tended to show that the southbound freight approached the footpath, where appellee’s son was killed, at a fast rate of speed without giving any warning and without regard to the danger incident to passing or meeting another train which might obstruct its view of the footpath and the view of its approach by any one in the footpath while in the act of crossing the track. The testimony justified the instruction given on comparative negligence.
Appellant also contends for a reversal or reduction of the judgment on the ground that it is excessive. Appellee’s son was 18 years of age when killed, and had been a dutiful and hard-working son. He not only assisted his father on the farm, but worked out when he could find work, and contributed practically all his earnings to his father and the support of the family. The testimony tended to show he had an earning capacity of about $500 a year. We do not understand the rule to be’, as contended by appellant, that the parent is limited absolutely to a recovery for damages, in case of the wrongful killing of his child, to its earning capacity during the remainder of its minority; but, on the contrary, is entitled to recover such sum as the parent would have received had the child continued to live, considering all the facts and circumstances in the particular case. 8 R. C. L., p. 839, § 113.'
No error appearing, the judgment is affirmed.
Justices Smith, McHaney and Butler dissent. | [
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Smith, J.
This appeal presents no question which has not already been decided adversely to the contentions here made. The suit is based upon the identical group policy of life insurance No. 26,595 which was sued on in the case of Home Life Insurance Company v. Keys, 187 Ark. 796, 62 S. W. (2d) 950. The present appeal is from a judgment on the same policy. The only difference is in the name of the employee, the date of disability, and the time of bringing suit. The policy, which had been kept in force,by the Crossett Lumber Company for the benefit of its employees, expired on December 31, 1930. Keys, the plaintiff in the case just cited, who was disabled from and after October 12, 1929, died March 9, 1931, and proof in support of his claim was not submitted to the insurer until May 5, 193'2. In the instant case the insured became disabled in June, 1929, but furnished the insurer no proof of the disability until August 17, 1933. The only difference is that in the instant case a somewhat longer period of time elapsed than in the Keys case, but this is immaterial under former decisions of this court, as the proof was furnished and the suit was commenced before the bar of the statute of limitations had fallen. In the very recent case of Missouri State Life Ins. Co. v. Foster, 188 Ark. 1116, 69 S. W. (2d) 869, it was said: “In addition to what we have just said, we are definitely committed to the doctrine under policies of insurance wherein the provision for notice is not made a condition precedent to the right of recovery that it is immaterial how and when the proof of disability is made, if within the statutory period of limitations. Ætna Life Ins. Co. v. Davis, 187 Ark. 398, 60 S. W. (2d) 912.”
Other questions discussed in appellants’ brief relating to the liability of the insurer in the instant case are disposed of in the Keys case, supra, in which case the headnote reads as follows: “Under a policy of group insurance providing that, upon proof that an employee insured thereunder has become wholly and permanently disabled and thereby prevented from pursuing any gainful occupation, he will be regarded as a claimant, and the company waives payment of premiums thereafter, held that the insurance company became liable when an employee became totally and permanently disabled during the life of the policy, though proof of such disability was not furnished until after the policy had been canceled.”
There were questions of fact in the instant .case as to when the insured became totally and permanently disabled, and as to the continuance of the disability, but these questions were submitted under correct instructions, and are concluded by the. verdict of the jury, inasmuch as the testimony is legally sufficient to support the finding that the insured became permanently disabled while the policy was in full force and effect, and was shown to be permanently and totally disabled at the time of the trial.
The testimony on the insured’s behalf was to the effect that he was an ignorant and illiterate negro, who had no means of earning a livelihood except by his manual labor, and that he had become unable to work. It is insisted that instruction numbered 3 submitting this issue is erroneous. This instruction reads as follows: “The jury are instructed that total disability does not mean absolute physical disability on the part of the insured to transact any kind of business or work pertaining to his occupation. It is sufficient to prove, that the disability wholly disabled him from the doing of all the substantial and material acts necessary to be done in the prosecution of his work or the execution of them in the usual or customary way or when common care and prudence would require a man in his condition to stop doing the kind of labor he had performed before he became disabled. ’ ’
The objection now made to the instruction is that it permits a recovery upon the showing that the insured is unable to perform “the kind of labor he had performed before he became disabled,” without requiring the showing that he is unable to perform other kinds of gainful labor. There was no specific objection to the instruction, and, in the absence of such an objection, we do not think the instruction is defective in the respect stated. The testimony was to the effect that the only kind of labor the insured had performed, or knew how to perform, was manual labor, and the testimony as to his disability related to his ability to perform such labor generally, and not merely the kind of labor he was performing when he became disabled. If, therefore, it had been be lieved that the instruction construed the policy as if it were one of occupational insurance, that objection should have been specifically made.
It is finally insisted that the court erred in refusing to give appellants’ instruction numbered"5, which was to the effect that the recovery could in no event exceed “the aggregate, sum of the monthly payments provided for in the policy after August 15, 1933 (the date upon which proof was furnished)-, to date,” and for this reason the statutory penalty of 12 per cent, should not have been imposed, and no attorney’s fee should have been allowed. It appears, however, from what has already been said, that the right of recovery begins, not on the date the proof was furnished, but, as was said in the Foster case, supra, “upon causation of the injury (or disability).” This being a case! in which the insurer has denied any and all liability under the policy, the rigid existed to sue, not merely for installments of benefits, but for the total indemnity for which the policy provides. Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335; Ætna Life Ins. Co. v. Davis, 187 Ark. 398, 60 S. W. (2d) 912.
The penalty was therefore properly imposed, and the attorney’s fee was properly allowed.
The judgment must therefore be affirmed, and it is so ordered. | [
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Humphreys, J.
Appellee, administratrix of the estate of her deceased husband, brought suit against the appellants for the estate and for the benefit of herself and minor children, to recover damages on account of the •alleged negligent killing of deceased resulting from a collision of his car with a Ford truck belonging to appellant, Southwestern Bell Telephone Company, which was driven by Herman Avery, the other appellant.
Appellant filed an answer denying the material allegations of the complaint, and pleading that the injuries and death of deceased resulted from his own negligence.
The cause was submitted to a jury upon the issues joined, the evidence adduced, and the instructions of the court, which resulted in a verdict and consequent judgment against appellants in favor of appellee for the benefit of herself and minor children for the sum of $50,000, from which is this appeal.
Appellants contend for a reversal of the judgment on the ground that the evidence is insufficient to support the verdict. In determining this question on appeal, the testimony in the case must he viewed in the most favorable light to appellee, and if, thus viewing it, there is any substantial evidence supporting the verdict, it cannot be disturbed by this court.
According to the evidence introduced by appellee, her now deceased husband was en route to Little Bock on the Hot Springs highway the morning of June 24, 1933, in his Cadillac sedan, which he was driving at the rate of thirty-five or forty miles an hour; that, just before entering the village of Douglasville, he overtook appellant’s truck, which was being driven at a speed of fifteen or twenty miles an hour; that, as he approached the truck, he blew his horn when forty feet behind it, and again when he was ten feet behind it, as a signal that he would pass around it to the left; that when his front wheels were opposite the hind wheels of the truck, the driver of the truck, without checking his speed and without putting-out his hand or giving- any signal, suddenly turned to the left almost at right angles across the highway, and that before he could get out of the way of the truck by speeding up and turning to the left as far as possible, the collision occurred; that the collision caused his car to lose its balance and swerve or zig-zag at a high rate of speed along the highway for a considerable distance until it turned over and fatally injured him; that he was unable to reg’ain control of his car after the collision.
The evidence thus detailed is substantial and sufficient to sustain the verdict. Although appellant introduced evidence tending- to show that deceased was to blame for the collision, and that he had or could have regained control of his car after the collision, in the exercise of reasonable care, it must be remembered that the jury and not the court are the sole judges of the credibility of the witnesses and the weight to be attached to the evidence. The trial court must be sustained in his refusal to instruct a verdict for appellants on the ground of the alleged insufficiency of the evidence to establish liability.
Learned counsel for appellants strenuously insist upon a reversal of the judgment on account of a number of instructions given by the trial court over their general and specific objections and the refusal of the court to give a number of instructions requested by them, to which refusal they objected and excepted. We have carefully read and considered the instructions given and refused and have concluded that the trial court correctly instructed the jury upon the issues involved responsive to the evidence in the case. We regard the exceptions to the giving and refusal of some of the instructions of sufficient importance to more specifically state our reasons for disposing of them.
Appellants specifically objected to the giving of the court’s oral instruction No. 2 because they allege he ignored their defense of contributory negligence on the part of deceased. The last sentence in the instruction is as follows:
“But if it (the evidence) preponderates in her (appellee’s) favor on all the material allegations, she would be entitled to recover a verdict.”
Appellants argue that this part of the instruction necessarily means that, if the jury should find that the evidence preponderates in favor of appellee on all the material allegations in her complaint, she would be entitled to recover. The instruction does not say so in words, and we do not think it susceptible of such a construction. It means all the allegations arising in the case, whether contained in the complaint or other pleadings. The language used does not ignore the defense of contributory negligence, and it should not be interpreted to do so by reading the word ‘ ‘ complaint ’ ’ into it. We are quite sure the jury did not so understand it in view of the fact that they were told in other instructions that, if the deceased met his death on account of his own negligence, appellee could not recover.
Appellants objected generally to the giving of the court’s oral instruction No. 3 and now contend that it was inherently erroneous because it opened or began with the following sentence: “This accident, gentlemen, ■was due to an automobile collision on the public highway. ’ ’
They argue that the court told the jury in this sentence that the injuries and death of the deceased were due to the collision. The court did not so state, but said the accident was due to a collision on the highway, which was nothing more than a general statement of the kind and character of case before them for consideration. It was not tantamount to telling them that the injuries and death of deceased were due directly to the collision or that the collision was the proximate cause of the injuries and death of the deceased. No specific objection was made on the ground that the sentence was susceptible of the construction they now give it. The court did not err in giving the instruction.
Appellants objected specifically to the giving of instruction No. 6 on the ground that the effect thereof was to make them insurers of the safety of deceased. That part of the instruction objected to is the exact language of a part of our traffic statute, and is as follows: “I instruct you, gentlemen, that ‘the driver of any vehicle upon a highway, before starting, stopping, or turning from a direct line, shall first see that such movement can be made in safety, and, whenever the operation of another vehicle may be affected by such movement, shall give a signal, plainly visible to the driver of such other vehicle, of the intention to make such movement’.”
The effect of giving this instruction was to tell the jury that, if the driver of the truck turned to the left without first seeing* whether he could make the turn in safety or without giving a signal plainly visible to others that he was going* to make the turn, he would be guilty of negligence, which was quite different from saying* to them that they were insurers of the safety of deceased, for the instruction left it to the jury to find from the evidence whether or not he was guilty of such acts in turning the truck to the left and also left it to the jury to find from the evidence whether deceased himself caused his injuries and death by his own negligence. The fact that the instruction given by the court was in the exact language of a traffic statute does not keep it from being a correct declaration of law applicable to the situation and facts in the case. If the court had told the jury that appellants violated the traffic laws of the State in turning to the left and for that reason they became insurers of the safety of deceased, then the instruction would have been erroneous and subject to criticism made by appellants.
Appellants objected to the giving of instruction No. 14 and now argue that it constituted reversible error to give it because it acquitted deceased of all negligence except driving at a greater rate of speed than an ordinarily prudent man would have done. In other words, that the instruction had the effect of limiting contributory negligence on the part of deceased to speeding or fast driving. It is argued that the last sentence in the instruction had this effect, which sentence is as follows:
“¡But if you further find that at the time he approached the truck and was passing the same he was driving his car at such a rate of speed as an ordinarily prudent man would have driven under the circumstances, then he was not guilty of negligence.”
The jury could not have concluded from the sentence that the court intended to cover the entire issue of contributory negligence, especially when read in connection with other instructions given on the subject of contributory negligence. The meaning of the sentence is that if deceased was driving at the speed that an ordinary person would have driven under the circumstances, he was not guilty of negligence in regard to speed. Although the phraseology of the sentence was poor, its meaning was clear, and, as thus construed, did not mislead the jury.
Appellants objected generally to the court’s modification of their requested instruction No. 16 on the ground that there was no evidence to support or justify the modification. The instruction, as requested, reads as follows: “You are instructed that it is the duty of the deceased to exercise ordinary care even after the collision, and if you find from a preponderance of the evidence that after the collision he ran his car at an excessive or unreasonable rate of speed and in so doing he failed under all the circumstances to exercise ordinary care; and if you further find that such failure on his part contributed to his injuries and death, then the plaintiff cannot recover, and your verdict will be for defendants. ’ ’
The court gave the instruction as requested after adding the following words: “ Unless you further believe or find that the deceased had lost control of his car by reason of his car being negligently struck by the truck. ’ ’ There is much evidence in the record to the effect that deceased lost control of his car when the collision occurred, and that he was unable to regain control thereof, so the modification was responsive to the evidence.
Appellants also objected specifically to the giving of the instruction as modified on the alleged ground that the modification assumed that the car of deceased was negligently struck by the truck of appellants. We are unable to discover such an assumption in the modification. It unmistakably submitted the issues of whether deceased lost control of his car, and whether he lost control thereof by reason of his car being negligently struck by the truck. The instruction, as modified, was a correct declaration of law responsive to the evidence in the case.
In our examination of the instructions, we find that quite a number of those requested by appellants and refused by the court were fully covered by other instructions given by the court. Courts are not required in instructing juries to indulge in repetitions and duplications.
As stated above, we have carefully examined each and every instruction given and refused and have concluded that the trial court correctly declared the law applicable to the issues and evidence in the case.
Appellants contend that the verdict is excessive. The jury was correctly instructed as to the measure of dám-. ages. A verdict of $50,000 was awarded the widow and children for their pecuniary loss, including damages to the children for the loss of parental care and moral guidance and development. No award was made to the estate of deceased.
The question for our determination is whether this compensatory award is supported by the evidence. The deceased had been a very prosperous merchant in New York City and Hot Springs for many years. He was an importer of Oriental rugs, fine laces and linens and sold his goods at auction in a business house in Hot Springs. In addition to supporting his family in a luxurious manner, he accumulated sufficient out of his business to buy a home which cost $20,000 and a business house which cost $105,000 and to accumulate a stock of goods valued at about $60,000 with an outstanding commercial indebtedness of about $5,000. In 1929, just before the depression, he bought an adjoining business house on a credit for $95,000. Although he continued to make money in his business until he went into voluntary bankruptcy a few months before his death, the net returns therefrom were insufficient to keep up the principal and interest payments and taxes on his real estate, after paying his living- expenses; so a few months before his death, he went into voluntary bankruptcy and closed his store. He then compromised with his creditors on the basis that they accept all his real estate in full settlement of his indebtedness, leaving his stock of goods clear. He was on his way to Little Rock in connection with his bankruptcy proceedings when he was killed. Until he took the ’benefit of the bankruptcy act, he had contributed about $7,000 a year to his wife and children for their support and education. In addition to educating his children, he was giving them music and dramatic lessons. He was an attentive and dutiful husband and father, making a happy home for his wife and four children, ranging in age from 7 to 16 years. Physically he was a strong man, able to carry on the auction business during the day and until late at night, which he did. He was 51 years of age at the time of his death and had an expectancy of 20 years. His financial troubles resulted from his real estate investments and not from any substantial shrinkage in his business. It is reasonably dedueible from the evidence that, had he lived,.in view of his composition with his creditors, he would have been able to continue his business successfully and to have contributed about as much in the future to his family as he had in the past. Pie was familiar with his line of business, having spent his entire life in it. He was an exceptional auctioneer and business man, and knew well how to earn a dollar. Based upon his earning- capacity and expectancy under the accepted rule for ascertaining the present value of the total amount he would have contributed to his family, $50,000 in cash is much less than the present value the total contribution would figure. This being true, it would not be permissible for this court to invade the province of the jury to scale down the amount or reverse the judgment.
No error appearing, the judgment is affirmed.
In the opinion of Justices Smith and McHaney the judgment is excessive and should be reduced. | [
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McHaney, J.
Appellant, a qualified elector and taxpayer in Batesville 'School District No. 1 of Independence County, brought this action against appellees as the board of directors of said district to enjoin them from issuing refunding bonds in the sum of $110,500 to take up a like sum of outstanding bonds of the district. The complaint filed for this purpose alleged a number of grounds of invalidity of the proceedings taken, to which a demurrer was interposed and sustained. The complaint was dismissed as being without equity, and this appeal followed.
At the annual school election held May 19, 1934, the ballot used gave the electors the choice of voting “for school tax” and “against school tax,” and also for and against “18 mills school tax, including* 6 mills for building fund.” It then provided: “The building fund is for a proposed refunding bond issue of $112,500, and will run for twenty years and whatever number of mills is voted for the building fund will be a continuing levy of that amount on the real and personal property now embraced in this district until said bonds and interest are paid.” The names of four persons as candidates for school directors were also placed on the ballot with instructions to vote for two, and the name of one candidate for State Board of Education.' The county judge canvassed and certified the result of said election, showing, among other things, that a tax of 18 mills had been voted — 12 for school purposes and 6 for building fund. Thereupon, appellees, the directors of said district, had bonds printed of the face, value of $110,500, executed them, as also a deed of trust and pledge securing said bonds by a mortgage on all the property of the district and pledge of the annual revenues derived from a six mill building fund tax for twenty years, or until all the. bonds and interest of the refunding issue of $110,500 are paid. They thereupon gave notice of the sale of said refunding bonds by publication, sale to be to the highest bidder for cash or for exchange, for outstanding bonds, reciting certain conditions and the date of sale, August 30, 1934. ' One bid was received as follows: For $3,000 of 6 per cent, bonds, a surrender would be made of a like sum of bonds issued April 1, 1915; for $40,000 of 5 per cent, bonds a surrender would be made of a like sum of bonds issued January 1, 1923; for $43,000-of 5% per cént.-bonds, a surrender would be made of a like sum of bonds issued August 1, 1926; and for the remainder, $24,500 of 5 per cent, bonds, a surrender would be made of a like sum of bonds issued March 2,1931. One of several conditions of this bid is as follows: “This offer is upon the condition that the district will set aside into a building fund the entire proceeds of the annual building fund tax of six mills which this district voted on May 19, 1934, for the retirement of this bond issue. The said building fund is to be kept solely for the following purposes”; setting them out.
For a reversal of the judgment, appellant first contends that § 1, act No. 28 of the Special Session of 1933, approved September 2, 1933, which amended § 65 of act No. 169, 1931, page 476, is unintelligible because of the following language used in the act: “Hereafter on the proposed issue of bonds by any school district, either for the purpose of borrowing money or to refund any outstanding bonds of said district, the directors shall submit to the electors of the district either at the annual school election or at a special election called for that purpose * * * at which the electors shall vote on the question of the number of mills to be set aside in the building fund to pay the bonds and interest on the proposed issue.” The criticism is that the language employed requires the directors to “submit” something without stating what is submitted. It must be admitted that the sentence is awkwardly drawn, but the whole act leaves no doubt about what they were to submit to the electors. The question to be submitted was the voting of a building fund in the manner and form prescribed in said act 28. Section 65 of act 169, 1931, provided for the voting of a continuing levy for a building fund, but it did not provide that such facts should be printed on the ballot to be used at the election at which the continuing levy was voted. The object of the amendatory act No. 28 was to advise the electors of the fact that a continuing levy for the building fund was to be voted for and the number of years the levy should run. The purpose of the act is therefore clear, and it is not subject to the criticism made of it by. appellant.
It is next said that the notice given of the annual school elections in this and other districts in the county was not a proper notice because not signed by the directors. The notice was signed by the county judge and the county examiner. It correctly stated the nature of the election, the date and hours as fixed by law and that: ‘ ‘ Electors will vote on local district tax, for local school directors and any other question that may be submitted by the local directors.” We do not here decide whether the notice should have been signed by the directors or by the county judge, as such failure, if it be a failure, did not invalidate the election as it is a mere irregularity. Wallace v. K. C. Sou. Ry. Co., 169 Ark. 905, 279 S. W. 1. In that case we quoted from Hogins v. Bullock, 92 Ark. 67, 121 S. W. 1064, which is a quotation from Jones v. State, 153 Ind. 440, 55 N. E. 229, as follows: “All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election or unless it is expressly declared by the statute that the particular act is essential to the validity of an election or that its omission shall render it void.” Therefore the failure to give a proper notice, or a notice signed by the proper officials could not have the effect of voiding the election.
The next argument made for the reversal of the judgment is that the ballot used in the annual election held May 19, 1931, did not comply with the provisions of said act 28. The act provides, with reference to the ballot, the following: “The ballots shall state plainly in the same size type and immediately following the words, ‘for .........mills for building fund,’ that the proposed bonds will run for the number of years agreed upon between the directors and the bond broker, and that whatever number of mills is voted for the building fund will be a continuing levy of that amount on the real and personal property then embraced in said district until said bonds and interest are paid, and that shall be the effect of said election. ’ ’ The ballots had printed on them the matters herein above stated. Instead of printing the information required by the act as above quoted, immediately following the words “for 18 mills school tax, including 6 mills for building fund,” such information was printed below the words “Against 18 mills school tax including 6 mills for building fund.” "We think this is a substantial compliance with the requirements of the act. Said act 28 further provides: ‘ ‘ They shall show on the ballot the proposed levy for school purposes and the part thereof to be voted for and placed in the building fund. The ballots shall show the number of mills to be voted for the building fund.” It is conceded by appellant that the act was literally complied with in the printing of the ballots except that the information regarding the building fund as to its being a continuing levy and the number of years it was to run did not immediately .follow the words, “for 18 mills school tax including 6 mills for building fund. ’ ’ The very purpose of the act was to advise the voter what the effect of his ballot would be. Prior acts made no such requirement regarding the printing of such information on the ballot. Each elector had his choice of voting first, “for or against” the school tax and second, for or against “18 mills school tax, including 6 mills for building fund.”
Another contention made by appellant is that the county judge and the county examiner canvassed and certified the result of the election instead of the county court. It is true that under § 30, act 169, 1931, the duty of certification devolved upon the county board of education, and that by act 247, of 1933, the duties exercised by the county board of education were transferred to the county courts of the respective counties of the State. There is no contention that the county judge and the county examiner did not correctly canvass and certify the result, and no contest thereof was had. We think the mere fact that the county judge instead of the county court certified the result is an irregularity, and that it should not be permitted to invalidate the election. It is also contended that the form of the certificate as to what tax was voted is insufficient to constitute a levy of any tax,' — that it is unintelligible. We cannot agree with this contention. It shows that in district No. 1, which is appellee district, two persons were elected directors to serve for a five and four year term; respectively, and that a 12 mill and a 6 mill tax were voted. Based upon this certificate a 12 mill tax for school purposes was levied and a 6 min tax for building purposes was levied. We think this is sufficiently intelligible to justify the levy made.
It is next contended that the offer to purchase the refunding’ bonds was merely one for the exchange of the bonds outstanding for new or refunding bonds and not for cash, as it is contended the statute requires. Section 65 of act 169, 1931, and act 28 of the special session of 1933 authorize the refunding of outstanding bonds by school districts. It would be a useless procedure to require the holders of the outstanding bonds to pay cash for the refunding bonds and then take the cash back on the surrender of the outstanding bonds, and we do not understand the statute so requires. It is further contended that the electors voted for a bond issue for $112,500, whereas the board finds it necessary to issue only $110,-500 in refunding bonds. Bince the amount to be issued is less than the amount authorized, certainly this is to the advantage of the district and does not prejudice its interests in any way.
The concluding sentence of said act 28 tends to cloud the act with some uncertainty. It is as follows: “In no other case shall the voting of any building fund have the effect to make the same a continuing levy, and it is hereby declared to be the legislative intent that no voting of a building fund by any school district in this State, since the passage of act 169 of the Acts of the. General Assembly of 1931, shall have the effect to be a continuing levy except where money was actually advanced to a school district since the passage of said act and in reliance thereon, but in no other case.” What the Legislature evidently intended was to annul or make void the voting of a building fund which would be a continuing levy since the passage of act 169 of 1931, and prior to the passage of said act 28. No doubt the reason for such action was that the electors in some cases had, during such a period, voted for a building fund, which had the effect of being a continuing levy, without knowing such to be the fact. Said act 28 provides for such information to be printed on the ballot, and it then said that: “In no other case shall the voting of any building fund have the effect to make the same a continuing levy, etc.” We therefore hold that said act 28 authorizes the voting of a continuing levy for a building fund, when the act- is complied with, and- this matter of voting a continuing levy in school districts for building funds has twice been held by this court to be constitutional. Woodruff v. Rural Special School Dist., 170 Ark. 383, 279 S. W. 1037; Ruff v. Womack, 174 Ark. 971, 298 S. W. 222.
We find no error, and the judgment is affirmed. | [
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Johnson, C. J.
Appellees, the county judge and certain citizens and taxpayers of Conway County, instituted this proceeding in the Pulaski Chancery Court against Roy Y. Leonard, State Treasurer, and the county treasurer of Conway County, to prohibit the respective treasurers paying over to Conway County Bridge District certain funds accumulated in the State Treasurer’s hands under authority of act 11 passed at the special extraordinary session of the General Assembly of 1934. The complaint alleged the source of the accumulated fund and that the disposition thereof as provided for in § 23 of said act, in .so far as it undertook to donate same to the Conway Comity Bridge District, was in violation of the 14th Amendment to the Constitution of 1874, which prohibits local legislation. Subsequently an intervention of certain interested parties was filed by Pope and Yell county citizens against Yell & Pope County Bridge District which sought similar relief. Thereafter, the Conway County Bridge District and Yell & Pope Bridge Districts intervened in said cause and asserted their respective interests in said fund, and in addition thereto denied the invalidity and unconstitutionality of § 23 of said act.
The case was submitted for trial and decree upon an agreed statement of facts and certain oral testimony then and there produced and heard, but we deem it unnecessary to here set out in detail the facts adduced. The chancellor determined that that portion of act 11 of 1934 contained in § 23 thereof, which undertook to allot a certain part of the county highway improvement funds to bridge districts was in violation of Amendment No. 14, and therefore unconstitutional and void, and thereupon permanently restrained and enjoined the disbursements of said fund or any part thereof to the two bridge districts, and this appeal comes therefrom.
Section 23 of act 11 of 1934, a part of which was declared unconstitutional and void by the trial court, reads as follows:
“Section 23. Paragraph (e) of § 1 of act No. 63 of the General Assembly, approved February 25, 1931, is amended to read as follows:
“(e) All net tax derived from motor vehicle fuel under the provisions of paragraph (c) of this! act shall be divided: Ninety-two point three per cent. •('92.3%■) shall be deemed State highway revenue, and seven point seven per cent. (7.7%) shall be deemed county highway improvement revenue, and shall be credited by the Treasurer of State to the ‘county highway fund.’ Said county highway fund shall be segregated, set apart and placed in trust for the sole, separate and exclusive use of the several counties of this State to be apportioned under the existing laws, and the State expressly covenants that it will not permit the percentage herein allotted to the county highway fund to be reduced. Providing that the refund going to any county in the State having a bridge district where the bridge is across a navigable stream, as defined by the Department of Commerce of the United States Government and is located not less than seven miles from the county seat of said county, and constitutes a continuation of a State highway, the funds going to the county under the terms of this act shall be allotted to the bridge commission to be applied to the retirement of the bridge district bonds, and the county treasurer shall pay such funds to the proper trustee for such application. Provided further that this amendment does not apply to toll bridges. Provided that one-half of the refund going to any other county in this State other than the counties herein classified or in which the refund is controlled by any existing legislation shall be allotted to the bridge commission of any bridge district where the bridge constructed by the district is across a navigable stream as defined by the Department of Commerce of the United States Government and constitutes a link in a State highway, and where said bridge is situated not less than one mile from the county seat. ’ ’
It appears from the section of the act just quoted that the Legislature divided the net tax derived from motor vehicle fuel into two funds, namely'’: State highway revenue and county highway improvement revenue. It also appears that the county highway improvement revenue as therein created is dedicated to the several counties of the State to be apportioned under existing laws, provided, however, the fund going to any county having a bridge district, where the bridge is across a navigable stream * * * and is located not less than seven miles from the county seat of said county and constitutes a continuation of a State highway, the funds going to the county under the terms of this act shall be allotted to the bridge commissioners to be applied to the retirement of the bridge bonds, and the county treasurer shall pay such funds to the proper trustee for such application. Provided further that this amendment does not apply to toll bridges, and provided further that one-half of the refund going to any other county in this State other than the counties herein classified or in which the refund is controlled by any existing legislation shall be allotted to the bridge commission of any bridge district where the bridge constructed by the district is across a navigable stream as defined by the Department of Commerce of the United States Government and constitutes a link in a State highway, and where said bridge is situated not less than one mile from the county seat.
From the language quoted, it definitely and certainly appears that the benefits granted by the State to bridge districts is restricted as follows: First, only to districts where the bridge spans a navigable stream; secondly, the bridge must not be within one mile of a county seat; third, such bridge must not be a toll bridge.
The restriction that the bridge of a benefited district must span a navigable stream localizes the benefits to such districts as border navigable streams, and we judicially know that many bridge districts in this State do not border such streams and will not do so within any reasonable future time. The restriction that the bridge in the district to be benefited must not be a toll bridge further restricts the applicability of said section by excluding from its benevolent purposes all bridge districts in the State which collect tolls. The further elimination of all districts where the bridge is situated within one mile of the county seat further restricts the applicability of the benefits of said section.
Appellants’ first contention is that the two bridge districts here under consideration, and which are benefited by § 23, are a part and parcel of the State highway system and therefore legislation in reference to such districts affects the people of the State as a whole and therefore such legislation is general in effect, though local in its immediate application. To support this contention, Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844, is urged upon us as authority therefor. This case determined only that statutes establishing or abolishing separate courts relate to the administration of justice and are therefore neither local nor special in their operation.
Moreover, the contention here urged was tacitly decided adversely to appellants’ contention in Board of Commissioners of Red River Bridge District v. Wood, 183 Ark. 1082, 40 S. W. (2d) 435, wherein we decided that an act of the General Assembly which was confined in its operation and effect to this bridge district was local and therefore void under the 14th Amendment. The similarity of the conditions dealt with in the Red River Bridge District case and those under consideration here may be summarized as follows: § 23 of act 11 of 1934 seeks to relieve taxpayers of the respective bridge districts from the legal obligation of paying a certain percentage of their assessments of benefits, whereas in the Red River Bridge District case it was sought to refund to taxpayers of the district certain benefits theretofore paid. Thus it definitely appears that the two acts have the identical purpose and effect, that of relieving taxpayers in a restricted area and excluding all other taxpayers not so fortunately situated, though within the general class.
Next, it is urged that the Legislature has the inherent power to make reasonable classifications and to pass laws applicable only to such designated class, conditioned only that such law must apply to all within the designated classification. We have so decided in many cases and among which are the following: McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707; LeMaire v. Henderson, 174 Ark. 936, 298 S. W. 327; Knowlton v. Walton, ante p. 901, and cases therein cited. The rule thus announced is grounded upon the proposition that such classification does not permanently exclude other persons and things within the general class, but on the contrary is prospective in view that such persons or things temporarily excluded may in the future come within its operation.
Here the questions arise, first, does the provision here under consideration make a reasonable classification? and, secondly, does it apply to all within the general classification, or will it do so at any reasonable future time? Admittedly, no bridge district in this State may be benefited by § 23 unless the bridge spans a navigable stream, thereby, arbitrarily excluding all bridge districts in the State save those adjacent to or bordering upon such streams; and this is true, even though such bridge may be more than one miles from the county seat, and may not be a toll bridge. Also a bridge may not be a toll bridge and may be situated across a navigable stream, yet it is excluded if situated within one anile of the county seat. Moreover, the bridge may be more than one mile from the county seat and situated across a navigable stream, yet it is excluded from benefits under § 23 if it happens to be a toll bridge.
This suffices to show the unreasonable and arbitrary classification made by the Legislature and the subtle methods adopted to make local legislation appear in the guise of general enactment.
We .have uniformly held that-the subject of legislation, in order to be general law, must operate uniformly upon every person or thing of a designated class throughout the territorial limits of this State. Little Rock & Fort Smith Ry. Co. v. Hanniford, 49 Ark. 291, 5 S. W. 294, and Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785; Webb v. Adams, 180 Ark. 713, 23 S. W. 617; Board of Commissioners of Red River Bridge District v. Wood, supra.
Our holding* in Leonard v. Luxora, etc., 187 Ark. 599, 61 S. W. (2d) 70, is- decisive of the question of classification here under consideration as follows:
"There is nothing* in the terms of the act to distinguish Mississippi County from other counties in the State that have either a greater or less population, and have one or more judicial districts. There is no reason in the nature of things why an act of this kind should apply to Mississippi County and not to other counties in the State. It is therefore an arbitrary and unnatural classification, and there is no natural connection between counties having more than one judicial district and 65,000 population, and the division of the county highway funds. The act therefore cannot be upheld on the ground of classification. ’ ’
In Webb v. Adams, supra, we had under consideration an act which from its title and terms appeared to be general in its operations and effect throughout the State, but a certain provision thereof exempted certain school districts situated in the.State, and we there held that the exemption rendered the act local in its application and effect, and therefore, under Amendment No. 14, unconstitutional and void.
For the reasons stated, we conclude that the legislative classification here under consideration was unreasonable and arbitrary and its effect was to exclude bridge districts located in this State which fall within the general classification of such districts and is therefore unwarranted.
Finally, it is insisted that the conclusion here reached nullifies and destroys the whole of § 23 of act 11 of 1934. Not so. Section 54 of act 11 of 1934 provides, if for any reason any section or provision of this act shall be held to be unconstitutional, it shall not affect the remainder of this act, etc. It therefore appears that the Legislature had in mind that some of the provisions or sections of said act might be declared unconstitutional and void by the courts and in advance evinced'its purpose to pass said act regardless of the conclusions reached by the courts. We think therefore that the Legislature would have passed act 11 of 1934 as readily without the provision herein held to be unconstitutional and void as it did with it'included. Alsup v. State, 178 Ark. 170, 10 S. W. (2d) 9.
Moreover, we have many times decided that where the unconstitutional portion of an act is severable, and there is a complete act without it, the fact that one section of one portion of it violates the Constitution does not necessarily invalidate the entire act. Cone v. Garner, 175 Ark. 860, 3 S. W. (2d) 1; Stanley v. Gates, 179 Ark. 886, 19 S. W. (2d) 1000.
For the reasons stated, the decree of the Pulaski Chancery Court is in all things affirmed.
Smith and MoHaney, JJ., dissent. | [
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Smith, J.
Appellee was placed on trial, under an indictment charging him with the commission of the crime of grand larceny, alleged to have been committed by stealing an electric lighting plant, the property of the National Old Line Life Insurance Company. The theory npon which the insurance company claimed title to the articles alleged to have been stolen was that they were a part of the realty, the title to which had been secured through purchase under a decree foreclosing a mortgage upon which land the light plant was located. The mortgage described only the real estate, and contained no reference to the light plant.
At the conclusion of the testimony, the jury returned a verdict of not guilty under the direction of the court, and it is said that the reasons inducing this action were:
(1) that the property alleged to have been stolen was not annexed to the realty in such a way as to become a part of it and subject to the lien held by the mortgagee, and
(2) that, if said property was so annexed to the realty as to become a part of it, it was not the subject of larceny. It is apparent that the decision of these questions would involve a consideration of questions of fact. The decision of these interesting questions is foreclosed because they are not property presented for our review.
A motion for a new trial was filed on. the ground “That the court erred in its judgment in directing the jury to return a verdict in favor of the defendant.” It appears, however, that this motion was not pressed to a ruling thereon, and that the court adjourned without disposing of the motion.
A motion for a new trial is essential to the review of an alleged error which does not appear upon the face of the record, and is essential in this case to a review of the action of the court in directing the jury to return a verdict of not guilty. The purpose of a motion for a new trial is to call the alleged errors occurring during the trial to the attention of the court, and to afford an opportunity for correction by granting a new trial if the errors may not otherwise be corrected. Nordin v. State, 143 Ark. 364, 220 S. W. 473.
In the case of Incorporated Town of Corning v. Thompson, 113 Ark. 237, 168 S. W. 128, a judgment was entered imposing a fine npon the defendant pursuant to the verdict of the jury returned in that case. A motion for a new trial was filed, hut the court adjourned without disposing of the motion, and, at the succeeding term of the court, the motion was sustained, upon the ground that there was not sufficient evidence to support it, and the judgment was set aside and the defendant discharged. An appeal was duly prosecuted and that judgment was reversed. Section 2421, Kirby’s Digest, which now appears as § 3218, Crawford & Moses’ Digest, was quoted. That section reads as follows: “The application for a new trial must be made at the same time (term) at which the verdict is rendered unless the judgment is postponed to another term, in which case it may be made any time before judgment.” It was there said that this statute contemplates that the motion for a new trial should .be made at the same term of the court at which the verdict was rendered, and' should be acted upon at that term unless the rendition of the judgment is postponed to another term. It was further said that, inasmuch as the judgment was entered at the term of court at which the trial was had, and the term of court had adjourned without setting the judgment aside, the judgment became final, as the order of the court continuing the cause after the motion for a new trial was filed did not have the effect of setting aside the judgment. Further construing this statute, it was there said that, when the motion for a new trial was filed, the court might have postponed entry of the judgment until the next term of the court, and have continued hearing of the motion, which action would have operated as a continuance of the cause, in which event the motion could have been passed on at the subsequent term, but as this was not done, the defendant lost the benefit of his motion when the term of the court, at which the trial was had and the judgment entered, was adjourned until court in course. See also Thomas v. State, 136 Ark. 290, 206 S. W. 435; Collatt v. State, 165 Ark. 136, 262 S. W. 990; American Ins. Co. v. Dutton, 183 Ark. 595, 37 S. W. (2d) 875.
The motion for a new trial in this cause was not acted upon, nor was the judgment set aside at the term at which it was rendered. It therefore became final with the adjournment of the term; and as no error appears upon the face of the record, the judgment must be affirmed, and it is so ordered. | [
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Smith, J.
Appellee filed suit for divorce against his wife in the Independence Chancery Court, alleging, as grounds therefor, that her treatment of him and her conduct towards him were such as to render his condition as her husband intolerable, and from a decree awarding him a divorce is this appeal.
Appellant filed a motion, in which she alleged that she had a good and valid defense to the suit, but that she was Avithont funds to employ counsel to properly present it. She alleged that she and appellee Avere the parents of a six-year-old son, and she prayed that an allowance be made her with which to defend the suit, and for the support and maintenance of herself and the child during its pendency. Upon hearing this motion the court ordered appellee to pay $50 per month for the support of appellant and the child, and to pay her attorney $50 as a fee, and to pay $25 as court costs. Later an answer was filed, which, denied that either appellant or appellee were residents of this State, and tlie allegations of misconduct on appellant’s part were specifically denied.
We think the residence of appellee was sufficiently shown to confer jurisdiction on the Independence Chancery Court to grant the divorce, as was done. Appellee was engaged in business as a general contractor, and moved about from the place of one contract to another, the performance of several of which required him to reside in a tent at his camp, where his wife lived with him. Appellee appears, in some contracts, to have been employed by his father, who was the principal contractor, and in other contracts to have been in partnership with his father and a brother, who was also interested in some of these contracts. The headquarters of the contracting firm appear to have been at Cushman, in this State, where the permanent records of the contracting firm were kept and where final settlements were made of the transactions growing out of the contracts, and to which place appellee returned at irregular intervals. He testified that Cushman was his home, and that he had no other, and had never acquired any other residence; that he had always paid his poll tax and had voted in that county, and had never voted elsewhere, and that it was in fact his home.
Upon the merits of the case, it may be said that the testimony is voluminous and conflicting, but, after carefully considering it, we are unable to say that the allegations of appellee’s complaint are not supported by a preponderance of the testimony. No attempt was made to show that appellant was guilty of conduct involving moral turpitude. The testimony relates to the infirmity of her temper, which, according to appellee’s testimony, was irascible and ungovernable.
It is argued that the more violent outbreaks were condoned, because the parties continued to cohabit as man and wife after their occurrence. But not so. One indignity might not — and usually would not — afford ground for divorce. It is the persistence of one spouse in a course of conduct which becomes intolerable to the other of which the law takes cognizance and grants relief by way of divorce, and the doctrine of condonation has no application under the facts of this case. Longinotti v. Longinotti, 169 Ark. 1001, 277 S. W. 41.
The decree does not appear to be contrary to the preponderance of the evidence, and it is therefore affirmed. | [
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COURTNEY HUDSON GOODSON, Justice.
^Appellants Laura Neal, individually and as administratrix of the estate of Arvilla Langston (Langston), David Langston, and Lelia Branch appeal two orders of the Sebastian County Circuit Court granting summary judgment in favor of appellee Sparks Regional Medical Center (SRMC), denying their motion for reconsideration, and striking their amended complaint. For reversal, appellants argue that the circuit court erred in granting summary judgment, in failing to rule on a loss-of-chance theory of recovery, and in striking their amended complaint. This court has jurisdiction pursuant to Arkansas Supreme Court Rule 1—2(a)(7), as we previously decided Neal v. Sparks Regional Medical Center, 375 Ark. 46, 289 S.W.3d 8 (2008). We affirm.
On July 20, 2003, Arvilla Langston, an eighty-one-year-old woman, presented to |2SRMC’s emergency room with complaints of chest pain, left-arm numbness, back discomfort, and nausea. Langston described her pain as a ten on a level from one to ten. Medical records revealed that her July 20, 2003 emergency-room visit was her fourth visit in a two-week period. Dr. Jose Alemparte, a cardiologist, admitted Langston to SRMC.
On July 21, 2003, Dr. Alemparte performed a diagnostic catheterization, which revealed a ninety-five-percent blockage of the left anterior descending artery. Dr. Jorge Hernandez, an interventional cardiologist, then performed an angioplasty that included the insertion of a stent. He also ordered Plavix, an anti-platelet drug, in conjunction with Heparin, an anti-coagulant medication, but Langston did not receive Plavix until the following day. After the angioplasty, Langston complained of significant chest pain. Dr. Hernandez performed a second arteriogram, finding that the stent was in place and that the blood vessel was open. Langston developed hy-potension and continued experiencing severe chest pain. An electrocardiogram showed a small pericardial effusion and an impression of mild atrial collapse. The two doctors discussed these findings, and Dr. Hernandez performed a pericardiocen-tesis, which resulted in the collection of twenty to thirty milliliters of fluid. Lang-ston was transferred to the intensive-care unit where she remained relatively stable.
On July 22, 2003, at 6:04 a.m., an electrocardiogram revealed that Langston had suffered a heart attack. At 9:00 a.m., Dr. Alemparte learned of Langston’s condition and ordered another electrocardiogram, which revealed the same findings as the previous electrocardiogram. Dr. Hernandez performed another catheterization and found a blockage Lin the artery where he had placed the stent the previous day. Dr. Hernandez performed a procedure on the occluded stent and placed two additional stents in that area. At this time, Lang-ston’s blood work indicated that her hemoglobin level had steadily and rapidly declined, and she received multiple blood transfusions. Subsequently, she developed hypotension, acidosis, and liver failure. She also developed renal insufficiency, which the consulting nephrologist thought was due to her hypotension and possibly the use of the contrast dye required by the heart-catheter and angioplasty procedures. Langston’s condition remained guarded at this point, and she was placed on a do-not-resuscitate status per the family’s request.
On July 23, 2003, Langston’s condition continued to decline, and that afternoon, she coded. Dr. Hernandez responded to the code and found her in an agonal rhythm. The doctor discussed Langston’s condition with her family, and no further life-saving attempts were made per the family’s request. According to the deposition testimony of appellant Laura Neal, Neal’s brother informed her that a nurse and a student nurse had not locked the hospital bed, which caused Langston and the mattress to fall off the bed. The two nurses caught the mattress and Langston and placed them back on the bed. When Neal was asked if she spoke to the nurses or anyone at SRMC about this incident, she replied, “No.” Langston died shortly thereafter.
On July 19, 2005, appellants filed a medical-malpractice action against SRMC and Sparks Medical Foundation alleging that Langston died as the result of SRMC’s alleged | ¿failure to properly care for, diagnose, and treat Langston. Specifically, appellants alleged that Langston’s death was caused by the negligence of SRMC nurses in failing to administer Plavix at the time of, or after, her first angioplasty procedure on July 21, 2003, and in failing to notify Dr. Alemparte of the results of the July 22, 2003 electrocardiogram. SRMC filed an amended answer, and the circuit court dismissed the case on the grounds of charitable immunity. This court reversed, holding that the circuit court erred in failing to strike the amended answer. Neal, supra.
On remand, SRMC moved for summary judgment on the wrongful-death claim, arguing that any alleged negligence did not proximately cause the death of Arvilla Langston because appellants could not show that Langston would have survived in the absence of SRMC’s negligence. In support of its motion for summary judgment, SRMC offered the following exhibits: appellants’ complaint; Dr. Alemparte’s deposition; Dr. Hernandez’s deposition; Langston’s medical records; Dr. Timothy C. Waack’s affidavit; appellants’ responses to interrogatories and requests for the production of documents; and Nurse Carolyn Ford’s affidavit. Appellants filed a response supported by portions of the deposition testimony of Dr. Alemparte and Dr. Hernandez, as well as the deposition of appellant Laura Neal. After considering the motions and pleadings, the circuit court entered an order granting summary judgment and dismissing appellants’ claims. In its order, the circuit court made the following rulings:
Neither Dr. Hernandez nor Dr. Alem-parte stated that any actions or failure to act on the part of employees of [SRMC] proximately caused Mrs. Lang-ston’s death. [Dr. Waack specifically testified in his affidavit that earlier intervention in the catheterization would not have changed the course of Mrs. Langston’s care, that the fact that the patient did not receive Plavix following the initial catheterization and stint [sic] procedure or the failure to document why the medication was not given was not a proximate cause of the death of Mrs. Langston and, finally, that the failure to notify Dr. Alemparte of the change in Mrs. Langston’s EKG on July 22, 2003 was not a proximate cause of decedent’s death. The only other testimony [appellants] have to offer is the testimony of two nurses. The testimony of the additional expert named Elizabeth Stolzfus is unknown as there is no affidavit or no suggestion as to the subject matter of her specific testimony. The other nurse, Carolyn Ford, does offer the opinion that Mrs. Langston expired as a result of improper care received at [SRMC].
[Appellants] have failed to sustain the burden of proof to meet facts with fact or refute any of the material facts in this case.... Although a nurse may be an expert witness as to the standard of care for other nurses, it is not proper for a nurse to offer testimony on the issue of proximate causation as this is outside of the area of their expertise.
On September 12, 2011, appellants timely filed their notice of appeal from the judgment.
After the entry of the court’s order, appellants filed an amended complaint attempting to raise a pre-death claim not pled in the initial complaint. Appellants filed a motion for reconsideration and new trial, requesting the circuit court to reconsider its ruling granting summary judgment in favor of SRMC and dismissing appellants’ complaint. The circuit court denied appellants’ motion for reconsideration and new trial and granted SRMC’s motion to strike appellants’ amended complaint. In its order, the circuit court ruled that appellants failed to set forth specific grounds for reconsideration; that appellants were not permitted to pursue a claim for Langston’s conscious pain and suffering not previously pled; that no evidence supported such a claim; and that appellants filed the amended complaint after the circuit court had already granted summary judgment and dismissed the complaint. |fiAppellants timely filed a notice of appeal and amended notice of appeal. From both of the circuit court’s orders, appellants bring their appeal.
For the first point on appeal, appellants argue that the circuit court erred in granting summary judgment and in ruling that no genuine issue of material fact existed on the issue of causation between SRMC’s alleged negligence and Langston’s death. In support of this argument, appellants point to alleged discrepancies between the doctors’ deposition testimony. More specifically, appellants assert that they presented a genuine issue of material fact on SRMC’s alleged failure to administer Pla-vix and failure to notify a doctor until three hours after Langston’s heart attack on the morning of July 22, 2003. SRMC responds that the circuit court properly granted summary judgment because appellants failed to meet their burden of proof on the element of causation.
We consider summary judgment as one of the tools in a circuit court’s efficiency arsenal. Foreman Sch. Dist. No. 25 v. Steele, 347 Ark. 193, 61 S.W.3d 801 (2001). Summary judgment is to be granted by a trial court if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56; Pfeifer v. City of Little Rock, 346 Ark. 449, 57 S.W.3d 714 (2001); Mashburn v. Meeker Sharkey Fin. Grp., Inc., 339 Ark. 411, 5 S.W.3d 469 (1999). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001); Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000).
Summary judgment is to be granted by a circuit 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. Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157, 400 S.W.3d 701. 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. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. 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 documents filed by the parties. Id.
To establish a prima facie case of negligence, the plaintiff must demonstrate that the defendant breached a standard of care, that damages were sustained, and that the defendant’s actions were a proximate cause of those damages. Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). Proximate causation is an essential element for a cause of action in negligence. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). “Proximate cause” is defined, for negligence purposes, as that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the Sresult would not have occurred. Sharp, supra. Although proximate causation is usually a question of fact for a jury, where reasonable minds cannot differ, a question of law is presented for determination by the court. Cragar v. Jones, 280 Ark. 549, 660 S.W.2d 168 (1983). When a party cannot present proof on an essential element of his claim, the moving party is entitled to summary judgment as a matter of law. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992).
First, we turn to appellants’ theory of negligence involving the nurses’ alleged failure to administer Plavix to Lang-ston after her first angioplasty procedure. Dr. Hernandez’s deposition testimony reveals that he was never asked about his medical opinion regarding whether the failure to administer medications caused or otherwise contributed to Langston’s death. He testified that there was a “very small risk” of a clot forming following the placement of a stent in an artery, but he never stated that the lack of Plavix caused the clot to form or led to Langston’s death.
Dr. Alemparte’s deposition testimony reveals that appellants specifically questioned him about the cause of Langston’s death. Dr. Alemparte stated that Lang-ston had a heart attack caused by a clot that formed in the first stent placed by Dr. Hernandez on July 21, 2003. When asked about the absence of Plavix, Dr. Alemparte replied that the failure to administer the Plavix “could have been a factor” that attributed to the blockage, but that the risk of clotting is reduced from fifteen percent without Plavix to five percent with Plavix. Additionally, Dr. Waack, a cardiologist from Fort Smith, reviewed Lang-ston’s records and|9stated that
an earlier intervention in the catheteri-zation lab would not have reversed the ultimate course of the patient. The fact that nurses did not give the patient Pla-vix following the initial catheterization and stent procedure or failure to properly document why this medication was not given as ordered ... would not have been a proximate cause of Ms. Lang-ston’s death.
Moreover, Dr. Waack explained that Pla-vix could have exacerbated her retroperito-neal bleeding and perforation.
Second, we address appellants’ theory of negligence that the SRMC nurses failed to notify Dr. Alemparte immediately after the 6:04 a.m. electrocardiogram. Dr. Alem-parte declined to state that Langston more likely than not would have survived had she been taken to the catheterization laboratory sooner. He admitted that any opinion on that issue would be speculative. Dr. Alemparte recounted Langston’s complications, including acidosis, hypotension, nausea, and continued chest pain, and stated that “we were all in agreement that she was very sick” with an uncertain life expectancy.
In the case at bar, appellants, in order to overcome SRMC’s motion for summary judgment, were required to present proof that, but for the failure of the SRMC nurses to administer Plavix or the failure to notify Dr. Alemparte, Langston would not have died. However, appellants failed to meet proof with proof on this issue. Appellants merely offered portions of Dr. Alemparte’s and Dr. Hernandez’s depositions, as well as the deposition | intestimony of appellant Laura Neal. Dr. Alemparte testified that Langston suffered from persistent hypotension after her first angioplasty and that her hypotension was a significant contributing factor in her deteriorating condition, including renal failure, liver failure, acidosis, and cardiogenic shock. Neither doctor gave an opinion that any particular act of SRMC or its employees caused Langston’s death. According to Dr. Waack’s affidavit, none of SRMC’s employees’ actions or failure to act proximately caused Langston’s death. None of the doctors opined that Langston would have survived but for the fact that she did not receive Plavix on July 21, 2003, or that she would not have died but for the delay in notifying the doctor of the July 22, 2003 electrocardiogram results.
Here, the circuit court based its order of summary judgment on the following finding: “Plaintiffs have failed to sustain the burden of proof to meet facts with fact or refute any of the material facts in this case.” Based on the foregoing reasons, we hold that the circuit court |n did not err in this ruling. With the doctors’ expert opinions lacking proximate cause, appellants were duty bound to meet proof with proof, which they did not produce. On the record before us, SRMC has demonstrated that no material issues of disputed fact exist and that it is entitled to summary judgment as a matter of law. Accordingly, we affirm the circuit court’s grant of summary judgment.
For the second point on appeal, appellants argue that expert testimony from Nurse Carolyn Ford, Dr. Alemparte, and Dr. Hernandez indicate that errors were so egregious that the circuit court should have ruled that a loss-of-chance survival claim was sufficient to overcome summary judgment. Appellants urge this court to adopt the loss-of-chance doctrine in Arkansas.
However, the circuit court did not provide a ruling on this issue, and it is an appellant’s responsibility to obtain a ruling to preserve an issue for appeal. Miller v. Ark. Dep’t of Fin. & Admin., 2012 Ark. 165, 401 S.W.3d 466. The failure to obtain a ruling on an argument precludes appellate review because there is no order of a lower court on the issue for this court to review on appeal. Id. (citing Pro-Comp Mgmt., Inc. v. R.K. Enters., LLC, 372 Ark. 190, 272 S.W.3d 91 (2008)). Because the circuit court did not specifically rule on the issue, we are precluded from addressing the merits of appellants’ argument on appeal.
For the third point on appeal, appellants argue that the circuit court erred in striking their amended complaint. Appellants concede that they did not plead this claim in their original complaint, “although it was understood that Laura Neal was seeking damages for the |12pre-death pain and suffering.” Specifically, appellants contend that discovery was conducted concerning the survivorship claim, as SRMC inquired about any potential harm caused to Langston by being dropped and by suffering the effects of a heart attack for three hours before a doctor was notified.
Rule 15 of the Arkansas Rules of Civil Procedure encourages liberal amendments of pleadings. Dupree v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 856 (1989). Rule 15(a) states in pertinent part:
[A] party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding.
The circuit court is vested with broad discretion in allowing or denying amendments. Turner v. Stewart, 380 Ark. 134, 952 S.W.2d 156 (1997). While Rule 15 allows for liberal amendments of pleadings, we adhere to our well-established standard of review that we will not reverse a circuit court’s decision allowing or denying amendments to pleadings absent a manifest abuse of discretion. Neal, supra; Williams v. Brushy Island Pub. Water Auth., 368 Ark. 219, 243 S.W.3d 903 (2006).
In this case, the following facts are significant. On August 11, 2011, the circuit court entered its order granting summary judgment in favor of SRMC. Subsequently, on August 17, 2011, appellants filed an amended complaint to include a new pre-death claim that was not pled in the original complaint. Appellants’ amended complaint contained the following | ^additional language:
10. While under the care of nurses and staff of Sparks Regional Medical Center, Arvilla Langston was dropped and caused to incur pain and suffering.
11. ... Prior to her death, she incurred significant pain and suffering pri- or to her passing.
13. Arvilla Langston passed away and suffered severe pain and emotional harm prior to her passing....
By a letter directed to the circuit court, appellants indicated that the reason for filing the amended complaint was to make certain that the “pre-death claim is before the Court.” In the letter, appellants alleged that discovery and negotiations on the pre-death claim had been conducted. Appellants also filed a motion for reconsideration of the court’s summary-judgment ruling, requesting that the court reconsider its grant of summary judgment because “claims were remaining which related to a survivorship claim.” However, the court found that appellants failed to plead a survivorship claim in the original complaint and that “no evidence before the court [supported] such a claim.” The circuit court denied the motion for reconsideration and struck appellants’ answer.
We do not discern a manifest abuse of discretion in striking appellants’ amended complaint. While Laura Neal described Langston being dropped in her deposition, she did not mention any conscious pain and suffering by Langston in her deposition testimony. Nor was a pre-death claim pled in appellants’ original complaint before the court. For these reasons, we do not find a manifest abuse of discretion. Accordingly, we affirm the circuit court’s ruling.
1,4 Affirmed.
. In Nurse Ford’s deposition testimony, she recounted Langston’s stay in the hospital and stated, “Ms. Langston died as a result of improper care on behalf of the nurses on 07/23/03.” She also stated, under a paragraph entitled "Damages,” that "Ms. Arvilla Langston expired on 07/23/03 due to the improper care that she received at [SRMC].”
On this issue, the circuit court stated:
Plaintiffs [appellants] have the burden to offer expert testimony as to the standard of care, breach of that standard, and proximate causation. Ark.Code Ann. § 16—114— 206(a). Skaggs v. Johnson, 323 Ark. 320, 325, 915 S.W.2d 253, 256 (1996). Although a nurse may be an expert witness as to the standard of care for other nurses, it is not proper for a nurse to offer testimony on the issue of proximate causation, as this is outside of the area of their expertise.
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DOUG MARTIN, Judge.
| ,This is appellant Betty Tiner’s second appeal to this court in her efforts to enforce a property settlement agreement that was incorporated into a divorce decree, in which appellee William Joe (“Bill”) Tiner agreed to pay Betty a lump sum of $400,000 in exchange for Betty’s one-half interest in real property and assets belonging to the couple’s business, Benton Transmission. On remand from this court, the circuit court found Bill in contempt for failing to abide by the agreement’s terms, for which the circuit court purported to provide two remedies: (1) the circuit court granted Betty judgment for the balance owed by Bill for Betty’s one-half interest in the parties’ business assets, and (2) the circuit court ordered Bill to pay the judgment in $3,000 monthly payments until the judgment with interest is paid in full, along lawith other financial obligations that are not the subject of this appeal. Betty rais es two arguments on appeal: (1) the circuit court erred in modifying the parties’ property settlement agreement, which provided for payment in a lump sum, as opposed to monthly installments, and (2) the circuit court failed to consider and discuss all of the relevant factors in awarding an attorney’s fee. We agree with Betty on the first point, and therefore reverse and remand. As for Betty’s second point, we overrule our decision in Stout v. Stout, 2011 Ark. App. 201, 378 S.W.3d 844, and affirm the award of attorney’s fees.
I. Property Settlement Agreement
Paragraph three of the “First Amended and Substituted Decree of Absolute Divorce,” provides:
The parties were sworn, listened to the terms of their agreement property settlement agreement [sic] as it was read into the record of this Court in each of their, their counsels [sic], presence, and then both Plaintiff and Defendant testified, under oath, that they understood all the terms of their agreement and that the terms of the agreement were contractual, that neither party was being forced into, or entering into the same under duress, but it was a voluntary undertaking which they each requested the Court to approve to forever settle all of their marital property rights and allocation of marital debt.
In the following paragraph, under the heading “Property Settlement Agreement,” the decree provides:
|34. The Court now, having reviewed the terms of the parties’ property settlement agreement which is set-forth below, which forever settles the respective rights and claims of each party in and to property and other matters, hereby finds the same to be fair and equitable, that it should be approved and confirmed ....
A section entitled “Property Settlement Consideration” provides:
9. In consideration for the transfer and conveyance to Defendant William Tiner of Plaintiff Betty Tiner’s one-half (½) interest in the above described marital real property and Benton Transmission assets, Defendant William Tiner agrees to pay Plaintiff Betty Tiner, who agrees to accept, a bargained for specific sum for property settlement in exchange for all of Plaintiff Betty Tiner’s right, title and interest in all the parties’ real property and Benton Transmission assets. This specific total sum is FOUR HUNDRED THOUSAND DOLLARS ($400,-000.00); subject to, and conditioned upon, the Defendant William Tiner timely paying the above lump sum property settlement funds on of [sic] before July 16, 2009, which is thirty (30) days from date of the final divorce hearing.
That the Plaintiff Betty Tiner specifically retains title and ownership in the aforementioned real estate assets, as tenant-in-common by operation of law, until she receives full and timely payment of $400,000.00 lump sum portion of her property settlement funds she is due under this agreement. Upon Defendant William Tiner’s full and timely payment of all the above described lump sum property settlement funds, Plaintiff Betty Tiner shall grant, convey, and transfer, by Quitclaim Deed, all of her right, title, equity, and interest in the parties’ real properties described above, and any and all other documents necessary to transfer those real estate and Benton Transmission assets to Defendant William Tiner, or any other designated person or entity as he may direct.
IT IS FURTHER ORDERED that the Property Settlement Agreement refer enced above is incorporated by reference herein and is adopted by this Court, but not merged into this Decree; and the parties are ordered to abide by the terms of said Property Settlement Agreement.
(Emphasis in original.)
|JI. Background
The following is a brief discussion of what occurred with regard to Betty’s first appeal to this court in Tiner v. Tiner, 2011 Ark. App. 478, 385 S.W.3d 326. The final divorce decree, setting forth the above terms of the parties’ property settlement agreement was entered on July 29, 2009. On October 19, 2010, Betty moved to enforce the decree, for contempt sanctions, and for a writ of immediate execution. The circuit court initially granted the writ of execution on Bill’s one-half interest in Benton Transmission, but, on October 22, 2010, the circuit court granted Bill’s emergency motion to set aside the writ. On October 27, 2010, Betty filed a motion requesting that the circuit court reconsider its ruling setting aside the writ of execution. The circuit court, however, in a letter opinion dated November 4, 2010, declined to modify its October 22, 2010 order and noted that the parties would have the opportunity at a future hearing to present arguments as to how the circuit court should enforce the terms of the property settlement agreement.
At a hearing held on November 8, 2010, Bill admitted that he had agreed to pay Betty $400,000 in a lump sum according to the terms of the property settlement agreement, yet he did not make that payment. Bill testified that he was scheduled to close on a loan through which he was to borrow the money to pay the lump sum. Instead of closing on that loan, however, Bill filed for bankruptcy. According to Bill, he “got thrown out [of bankruptcy court.]” Bill claimed that, since that time, he attempted to borrow money to pay the lump sum but had been turned down by several banks. Bill testified that Benton Transmission earned a profit of $800,000 in 2009 and over $415,000 only six months into 2010. Bill further | ¿testified that he understood that he entered into a contract with Betty in the divorce proceedings and agreed to pay a lump sum but that he was requesting that the circuit court change the parties’ contract. Bill stated that, if the court were to permit him to pay the lump sum on a monthly basis, “$2,000 wouldn’t be a problem.”
Betty testified that she was married to Bill for over seventeen years. Betty testified, “I do not trust [Bill]. I want all of [the lump sum] at one time so I can put closure to two and a half years of misery that he has put me through.”
From the bench, the trial judge expressed his concern about ordering that all of Bill’s property be sold to satisfy his obligation to pay the lump sum or incarcerating Bill until he pays the lump sum. The trial judge did not think either option was “a good idea” because he “would be putting the future obligations of Mr. Tiner towards Ms. Tiner at risk and I would be bankrupting Mr. Tiner.” The trial judge, however, found that “there is probably a much greater ability to pay [on Bill’s part] than what has been stated from the stand.” The trial judge then ordered Bill to pay, among other things, $3,000 per month until the remainder of the lump sum, $349,286, is paid in full.
On November 22, 2010, Betty filed a notice of appeal from the circuit court’s order dated October 22, 2010, as well as the oral rulings issued from the bench at the November 8, 2010 hearing, for which an order had not yet been entered. Betty lodged the record on appeal with this court on December 21, 2010. On January 14, 2011, the circuit court entered a judgment ordering payment as prescribed in its oral ruling from the bench.
|fiIn our opinion in Tiner, supra, delivered on June 29, 2011, this court affirmed the circuit court’s decision setting aside Betty’s writ of execution, albeit on a different basis than that on which the circuit court relied. This court held that there was no judgment upon which to execute, in that the property settlement agreement was an independent contract between the parties and not a judgment, which required language clearly specifying the relief that was granted after determination and inquiry. This court then dismissed Betty’s appeal with respect to the judgment that was subsequently granted on January 14, 2011, because the circuit court lost jurisdiction to act once Betty lodged the record on appeal with this court. This court was thus precluded from considering the merits of Betty’s argument until now.
On August 9, 2011, Betty filed an amended motion to enforce the divorce decree, for contempt, and for an expedited order for an immediate writ of execution. A hearing was held on September 7, 2011, at which Betty testified as to additional instances of Bill’s contempt and testified that, while Bill had timely paid the $3,000 installments, he did not pay the other amounts ordered such that Betty was in danger of having her assets seized. Also, Betty testified that Bill owed $365,561.93, as set forth in a document entitled “Plaintiffs Judgment Principal and Interest Calculations” that was introduced into evidence. On September 16, 2011, the circuit court held Bill in contempt for failing to abide by the terms of the property settlement agreement and ordered Bill to pay the balance of the lump sum in monthly installments of 17$3,000. The circuit court also awarded Betty a $500 attorney’s fee. On September 21, 2011, Betty filed a timely notice of appeal.
III. Enforcement of Property Settlement Agreement
Betty argues that (1) the circuit court lacked authority to modify the parties’ property settlement agreement from a lump-sum payment to monthly installments, (2) the modification was not a permissible exercise of the circuit court’s contempt power because the sanction did not coerce Bill into complying with the agreement’s provision that he pay $400,000 in a lump sum, and (3) the modification cannot be upheld under Arkansas Rule of Civil Procedure 60(c) (2011), which sets forth grounds for setting aside a judgment after the expiration of ninety days. We agree with Betty.
Arkansas Code Annotated section 9-12-313 (Repl.2009) provides:
Courts of equity may enforce the performance of written agreements between husband and wife made and entered into in contemplation of either separation or divorce and decrees or orders for alimony and maintenance by sequestration of the property of either party, or that of his or her sureties, or by such other lawful ways and means, including equitable garnishments or contempt proceedings, as are in conformity with rules and practices of courts of equity.
Although we review equity cases de novo on the record, we do not reverse unless we determine that the circuit court’s findings of fact are clearly erroneous. Hill v. Hill, 84 Ark. App. 132, 134 S.W.3d 6 (2003). A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Sanford v. Sanford, 355 Ark. 274, 137 S.W.3d 391 (2003). We view the evidence in a light most favorable to the appellee, resolving |8all inferences in favor of the appellee. Id. However, a circuit court’s conclusion on a question of law is given no deference on appeal. Id.
We hold that the circuit court erred by ordering Bill to pay the lump sum in monthly installments because it resulted in an impermissible modification of the material terms of the parties’ property settlement agreement. It is well established that, when parties enter voluntarily into an independent property settlement agreement that is incorporated into a decree of divorce, it cannot subsequently be modified by the court. Gentry v. Gentry, 327 Ark. 266, 938 S.W.2d 231 (1997). Property settlement agreements, especially after approval by a trial court, are considered binding and final contracts between the parties. See Brewer v. Brewer, 239 Ark. 614, 390 S.W.2d 630 (1965).
The property settlement agreement clearly provides that each party was represented by counsel, that the parties understood the agreement’s terms and realized the terms were contractual, that neither party had been forced into the agreement, and that both parties entered into the agreement voluntarily. Moreover, the circuit court found that the agreement was “fair and equitable” and thereafter approved and confirmed it. Bill agreed to pay Betty $400,000 in a lump sum, and the circuit court could not thereafter modify the terms of the agreement by ordering Bill to pay the lump-sum amount in monthly installments. The fact that Bill entered into an agreement that later appeared improvident to him is no ground for relief. See, e.g., Helms v. Helms, 317 Ark. 143, 875 S.W.2d 849 (1994) (citing Armstrong v. Armstrong, 248 Ark. 835, 454 S.W.2d 660 (1970)); McGinnis v. McGinnis, 268 Ark. 889, 597 S.W.2d 831 (Ark.App.1980).
| (According to Bill, “[s]pecific performance of the lump sum provision was no longer feasible, as the time for such performance had passed.” Bill contends that the court therefore exercised its power of contempt by entering an order that “was designed to coerce the compliance of the Appellee because he could easily rid himself of the additional monthly payments and accruing interest — if he satisfied the agreement by paying Appellant in full.”
In Evans v. Evans, 92 Ark. App. 170, 211 S.W.3d 584 (2005), upon which Bill relies, this court held that the circuit court’s refusal to lower appellant’s alimony payments was a proper exercise of its contempt powers. The property settlement agreement in Evans, dated December 18, 2000, and incorporated into the divorce decree, ordered appellant to pay appellee $5,000 per month. The agreement provided that appellee acknowledged that appellant planned to become a medical missionary and agreed that, despite any economic hardship it caused her, appellant’s alimony payments would be reduced to $1,000 during the months that appellant lived outside of the United States. Upon his return to the United States, appellant would resume paying $5,000 per month. In August 2001, appellant was found in contempt for failing to pay alimony and meet other financial obligations and was ordered to pay appel-lee, among other sums, $100,000, plus interest, relating to the sale of the parties’ marital residence. The court also ordered appellant to surrender his passport and warned him not to apply for a duplicate passport until he paid the money he owed to appellee. In January 2002, appellee again requested that appellant be held in contempt. The matter was not heard until May 2004, at which time appellant contended that his alimony payment de creased to $1,000 per month in January 2002 when he began living outside of the United States. [ lf> Appellant, however, admitted that he had obtained a duplicate passport and left the United States on December 30, 2001, and practiced in the Philippines as a medical missionary. The circuit court found appellant in contempt and, in calculating the alimony arrearage, the circuit court concluded that appellant was not entitled to the reduction of alimony, given that his departure from the United States was in direct violation of the circuit court’s order. On appeal to this court, appellant argued that the circuit court erred in modifying the property settlement agreement by ordering him to pay $5,000 per month, instead of $1,000 per month, during the time that he worked as a medical missionary outside of the United States. This court held that the circuit court’s refusal to reduce appellant’s alimony payments while overseas was a valid exercise of the circuit court’s contempt power for violating its order restricting travel until appellant satisfied his financial obligations to appellee.
The Evans case is distinguishable from the present case in that the appellant in Evans would have paid $5,000 per month, in accordance with the property settlement agreement, if he had not violated the circuit court’s order. Whereas the circuit court in Evans punished the appellant for his violation of its orders, the circuit court in the present case alleviated Bill’s burden by ordering him to pay monthly installments instead of the lump sum agreed upon pursuant to the parties’ property settlement agreement. In Williams v. Ramsey, 101 Ark. App. 61, 270 S.W.3d 345 (2007), this court distinguished between civil and criminal contempt:
Contempt is divided into criminal contempt and civil contempt. Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. This court has often noted that the line between civil and criminal contempt may blur at times. Our Court of Appeals has given a concise description of |nthe difference between civil and criminal contempt. (“Criminal contempt punishes while civil contempt coerces.”) In determining whether a particular action by a judge constitutes criminal or civil contempt, the focus is on the character of relief rather than the nature of the proceeding. Because civil contempt is designed to coerce compliance with the court’s order, the civil contemnor may free himself or herself by complying with the order. This is the source of the familiar saying that civil contemnors “carry the keys of their prison in their own pockets.” Criminal contempt, by contrast, carries an unconditional penalty, and the contempt cannot be purged.
Williams, 101 Ark. App. at 65-66, 270 S.W.3d at 348-49 (internal citations omitted) (quoting Ark. Dep’t of Health & Human Servs. v. Briley, 366 Ark. 496, 499-500, 237 S.W.3d 7, 9-10 (2006)).
The circuit court’s order in the present case neither punishes nor coerces Bill to comply with the property settlement agreement’s provision for a lump-sum payment to Betty. Rather, the order grants Bill relief from his contractual obligations under the agreement. To the extent that the circuit court characterizes its action as contempt for which Bill could purge himself, the circuit court’s action is invalid because it impermissibly modifies the terms of the parties’ property settlement agreement. Accordingly, we reverse that aspect of the circuit court’s judgment that provides that Bill may pay the $349,286 in monthly installments, as opposed to the lump sum that was agreed upon.
As noted, the circuit court also purported to grant judgment to Betty for the unpaid balance of the $400,000 Bill originally agreed to pay. However, the amount of the judgment set by the circuit court was “the sum of $849,286.00 (as of November 7, 2010).” The circuit court’s precedent was not entered until September 16, 2011, ten months after November 7, 2010. There was uncontroverted evidence introduced after remand at the September 7, 2011 hearing that Bill had made payments to Betty on this indebtedness after November 7, 2010, li2and that interest had accrued in the interim. A judgment should be expressed in a sum certain so that execution may issue. Ark.Code Ann. § 16-66-101 (Repl.2005); 49 C.J.S. Judgments § 86 (1997). We hold that Betty is entitled to a money judgment, however, because the present judgment is deficient, we remand this matter for the circuit court to enter an appropriate judgment for a sum certain.
IV. Award of Attorney’s Fees
Betty sought approximately $20,000 in attorney’s fees, and the circuit court awarded Betty $5,000, followed by an additional $500. In arguing that she should have received a greater award, Betty contends that the circuit court erred in not considering and discussing the factors set forth in Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). According to Betty, the circuit court’s award must be reversed and remanded pursuant to our decision in Stout, supra. In Stout, this court reversed and remanded an award of attorney’s fees because “the trial court awarded attorney’s fees without any discussion whatsoever and without providing any pertinent analysis of the Chrisco factors.” Stout, 2011 Ark. App. 201, at 11, 378 S.W.3d at 850-51. Upon further reflection on the matter, we hold that our decision in Stout must be overturned.
Stout, a domestic-relations case, relies on three Arkansas Supreme Court cases to support the proposition that the circuit court must provide “evidence” of its consideration and analysis of the Chrisco factors. Those cases, however, are readily distinguishable from Stout in that none involved domestic-relations proceedings. The cases relied upon by Stout involve entitlement to statutorily mandated attorney’s fees and exceptions to the American Rule. See Bailey v. Rahe, 355 Ark. 560, 142 S.W.3d 634 (2004) (involving guardianship proceedings and Arkansas Code Annotated section 28-65-319’s provision that an attorney’s fee shall be allowed as an item of the expense of administration); S. Beach Beverage Co. v. Harris Brands, Inc., 355 Ark. 347, 138 S.W.3d 102 (2003) (involving the Franchise Act and Arkansas Code Annotated section 4-72-208’s provision that any franchisee who is harmed by violations of the Act shall be entitled to recover treble damages and, where appro priate, obtain injunctive relief in addition to reasonable attorney’s fees and costs of litigation); Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002) (involving the common-fund and common-benefit exceptions to the American Rule).
In Lake View, a school-funding case, our supreme court recognized that the Chrisco factors applied, after determining that attorney’s fees were appropriate where the State had waived sovereign immunity. Lake View, however, was a self-described “unique case with a 114unique set of circumstances.” Lake View, 351 Ark. at 96, 91 S.W.3d at 510. In Bailey and South Beach Beverage, both of which relied in part on Lake View, our supreme court reversed and remanded an attorney’s fee award and required the circuit court to analyze the Chrisco factors. At this time, we understand those three cases to be limited in application to the particular subject matters involved, i.e., school funding, guardianship proceedings, and cases involving the Franchise Act. To the extent these cases can be interpreted to require specific findings relating to a circuit court’s consideration of awarding attorney’s fees, we decline to extend their holdings with respect to the Chrisco factors into domestic-relations cases.
In Stout, this court noted the lack of any “evidence” that the circuit court had analyzed the Chrisco factors, which we held required that the case be remanded to the circuit court for proper consideration. Our decision in Stout essentially makes specific findings, written or oral, mandatory when awarding attorney’s fees in domestic-relations proceedings and requires that we summarily reverse and remand when an award lacks such findings. We note that Arkansas Rule of Civil Procedure 52 (2011) provides an avenue for requesting specific findings. Betty requested no such findings from the circuit court. The circuit court is certainly permitted and encouraged to consider the types of factors listed in Chrisco, supra, as well as such factors set | 1fiforth in Robinson v. Champion, 251 Ark. 817, 475 S.W.2d 677 (1972), and the financial abilities of the parties, but this court will not, on its own motion, require the circuit court to make specific findings in domestic-relations cases. As a practical matter, this court would impose a considerable burden on the circuit court if we required that specific findings be made when awarding attorney’s fees, given the myriad of factors to be considered.
Further, this court’s standard of review supports our decision to overrule Stout. In domestic-relations proceedings, the circuit court has the inherent power to award attorney’s fees, and whether the circuit court should award fees and the amount thereof are matters within the circuit court’s discretion. Miller v. Miller, 70 Ark. App. 64, 14 S.W.3d 903 (2000). When addressing a circuit court’s award of attorney’s fees, our courts have often observed that there is no fixed formula in determining what is reasonable. Swink v. Lasiter Constr., Inc., 94 Ark. App. 262, 229 S.W.3d 553 (2006). The Stout court recognized that “the circuit court may use its own experience as a guide and can consider the types of factors set forth in Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990).” Stout, 2011 Ark. App. 201, at 11, 378 S.W.3d at 850 (emphasis added). A court need not, however, conduct an exhaustive hearing on the amount of attorney’s fees because it has presided over the proceedings and gained familiarity with the case and the services rendered by the attorney. Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983). Further, we have not strictly required documentation of time and expense in a divorce case where the trial court has had the opportunity to observe the parties, their level of cooperation, and their obedience to court orders. Deaton v. Deaton, 11 Ark. App. 165, 668 S.W.2d 49 (1984). Due to the trial judge’s intimate acquaintance with the record and the quality of service rendered, we usually recognize the superior perspective of the trial judge in assessing the applicable factors. Chrisco, supra. Accordingly, an award of attorney’s fees will not be set aside absent an abuse of discretion. Id. An abuse of discretion occurs when discretion is applied thoughtlessly, without due consideration, or improvidently. Payne v. Donaldson, 2011 Ark. App. 467, 385 S.W.3d 296.
Without express authority from our supreme court, and, given this court’s deferential standard of review of the circuit court’s awarding of attorney’s fees, we will not expand our supreme court’s mandate, requiring reversal and remand for an analysis of the Chrisco factors, into the realm of domestic relations. Accordingly, we overturn Stout and its progeny, to the extent those cases require the circuit court to make written findings on and/or specific reference to the Chrisco factors in awarding attorney’s fees in domestic-relations cases. See, e.g., Clowers v. Stickel, 2012 Ark. App. 346, 414 S.W.3d 396; Gillison v. Gillison, 2011 Ark. App. 244, 382 S.W.3d 795; Szabo v. Womack, 2011 Ark. App. 664, 2011 WL 5220503.
Because Betty has failed to sustain her burden of proving that the circuit court abused its discretion, we affirm the award of attorney’s fees.
Reversed and remanded in part; affirmed in part.
PITTMAN, ROBBINS, and HOOFMAN, JJ., agree.
ABRAMSON and BROWN, JJ., dissent.
. As a general proposition, contempt may not be used to compel payment of a money judgment. See 17 C.J.S. Contempt § 15 (1999); 50 C.J.S. Judgments § 694 (1997). But see Gould v. Gould, 308 Ark. 213, 823 S.W.2d 890 (1992) (holding that failure to pay attorney’s fee reduced to judgment in divorce case may be subject to contempt citation). However, no objection to the circuit court’s attempt to enforce a money judgment through its contempt power was raised before the circuit court, nor is it argued on appeal.
. Myers v. Yingling, 369 Ark. 87, 251 S.W.3d 287 (2007) (Once the record is lodged in the appellate court, the circuit court no longer exercises jurisdiction over the parties and the subject matter in controversy.).
. Chrisco provides that, “although there is no fixed formula in determining the computation of attorney's fees, the courts should be guided by recognized factors in making their decision, including the experience and ability of the attorney, the time and labor required to perform the legal service properly, the amount involved in the case and the results obtained, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, whether the fee is fixed or contingent, the time limitations imposed upon the client or by the circumstances, and the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.” Chrisco, 304 Ark. at 229, 800 S.W.2d at 718-19.
. Arkansas has long followed the "American Rule” that attorney’s fees are not chargeable as costs in litigation unless specifically permitted by statute or rule. Gill v. Transcriptions, Inc., 319 Ark. 485, 892 S.W.2d 258 (1995).
. Rule 52(a) (2011) provides that, if requested by a party at any time prior to entry of judgment, in all contested actions tried upon the facts without a jury, the court shall find the facts specially. Subsection (b) provides that, upon motion of a party made not later than ten days after entry of judgment, the court may amend its findings of fact or make additional findings. Ark. R. Civ. P. 52(b).
. Robinson, a divorce case, recognized that, among the pertinent considerations in determining the amount of attorney's fees are the attorney’s judgment, learning, ability, skill, experience, professional standing; the relationship between the parties; the amount or importance of the subject matter of the case; the nature, extent and difficulties of services in research, collection, estimation, and mental array of evidence and anticipation of defenses and means of meeting them; considering the case, receiving of confidential information and giving of confidential advice before any pleadings are filed or other visible steps are taken; the preparation of pleadings; the proceedings actually taken and the nature and extent of litigation; the difficulties presented in the course of the litigation; the results obtained; and many other factors besides the time visibly employed. Robinson, 251 Ark. at 818-19, 475 S.W.2d at 678. See also Paulson v. Paulson, 8 Ark. App. 306, 311, 652 S.W.2d 46, 49 (1983).
. See Davis v. Williamson, 359 Ark. 33, 194 S.W.3d 197 (2004) (noting that the factors in Paulson are very similar to those set forth in Chrisco, with one exception — the financial abilities of the parties are also considered in the context of domestic-relations cases). | [
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English, C. J.
On the twenty-ninth of November,1876, letters of administration upon the estate of Francis Moore, deceased, were granted to B. D. Hodges, by the Probate-Court of Lee county.
On the eighth of December 1879, when it seems Hodges-had ceased to be administrator, and C. H. Banks had been appointed administrator de bonis non of said estate, M.. Wolf, a merchant of Memphis, Tennessee, presented to said probate court for allowance, an itemized open account against the estate of Moore for merchandise, money, etc., amounting to $ 1,229.12.
The demand appears to have been sworn to in the usual probate form by Wolf, at Memphis, on the twenty-fourth •of November,1879, before a commissioner of deeds, &c,; for Arkansas, and filed for allowance fifth óf December follow-in o*.
At the foot of the account was the following:—
‘¿Duplicate of account made before this approved.
B. D. Hodges, Adirír.
“Nov. 26th, 1879.”
The eighth of' December, 1879, the day on which the .account was presented to the probate court for allowance, was a day of the regular November term, 1879. The court-rendered judgment in favor of Wolf for the amount of the account, and classed it in the fourth class of claims against the estate. The record entry of the judgment recites that it was represented to the court that a duplicate of the account properly authenticated was presented to the administrator (Hodges), and by him allowed prior to the expiration of one year after the date of bis letters; hence the court treated the demand as not barred by the statute of non-claim.
It seems that Banks, the administrator de bonis non, .appealed from this judgment, but there was no entry of the appeal on the record of the probate court.
On the fifth of January, 1880, a day of the regular November term, 1879, of the probate court, an attorney for the heirs of Francis Moore deceased, moved that the judgment ■of allowance be set aside, with leave to file exceptions to the allowance of the claim.
Which motion was ordered to be filed, to be acted on at the February term, 1880; but no action appears to have been taken on the motion at that term.
At the May term, 1880, the motion was taken up and heard, and the judgment of allowance entered at the November term, 1879, set aside and held for naught, and the claim ■disallowed. From this judgment, Wolf appealed to the ■circuit court,
In the circuit court, Wolf filed a motion to dismiss the appeal of Banks ; and that on his own appeal the order of the probate court setting aside the judgment of allowance, and disallowing the claim be declared null and void, and the court overruled the motion.
It was then agreed by the parties that Banks had taken an appeal from the judgment of allowance, though the probate record had failed to show it, and the cause was submitted -to the court on depositions taken by the parties, and the ■court found that the claim Avas barred by the statute of non ■claim, and gave judgment disallowing it, and refused Wolf -a new trial, and he took a bill of exceptions and appealed to this court.
I. The probate court liad no power at the May term ■.set aside the judgment of allowance rendered by it at the previous November term, and the order setting it aside Avas . . 7 null and void, and no appeal Avould lie from it, but it might have been quashed by the circuit court on certiorari. Cossitt et al. v. Biscoe, 12 Ark., 95.
The case was tried de novo, hoivever, by agreement of The parties, on the appeal of Banks from the original judgment of allowance.
II. It is probable from all the evidence that the account2 ■of Wolf against the estate of Moore Avas originally a just . ■claim, and that he presented it,properly sworn to, within •statute period of non-claim, to Hodges, the first administrator, for alloAvance, and that he indorsed his allowance, and returned it to Wolfe, and that it Avas perhaps lost or mislaid ■and hence a duplicate Avas presented to the probate court for iilloAArance. The evidence discloses an ugly feature in the case, which perhaps induced his Honor, the circuit judge, to reject, the whole claim as bai'red.
After the death of Moore, Hodges administered oxx his-estate in Lee county, where it seems he had x’esided, and Wolfe also took out letter's of administx'ation in Shelby county Tennessee, where Moore left assets.
Wolf became insolvent, and assigned all his choses inaction, and among them his account against the estate of' Moore, to Loxvenstein of Memphis, and obtained a discharge-in bankruptcy.
After his discharge, and when he was still the administx-ator of Moore, and had assets of the estate in his hands, if he had not wasted them, he purchased, in November, 1878,. of Lowenstien, through one Warner, the account against the-estate of Moore, paying not exceeding $100 therefor, and: afterwards proceeded to have the entire claim, ($1,229.12),. probated agaixxstthe estate of Moore in Arkansas.
He was, himself, a trustee of part of Moore’s estate, and not iix a coxxditioxx to speculate upoix claims against it. Trimble et al. v. James ad. 40 Ark., 393.
The judgment of the court below rejecting the whole claim: must be reversed, and a judgmeixt will be entered hex-e,. allowing the claim for $100 with interest from the last of November, 1878, to be classed in the foux'th class of claims-against the estate of Moore.
This judgment will be certified to the court below, axxd by it to the probate coux't. | [
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English, C. J.
On the twenty-ninth of April, 1880,, Andrew N. Curry recovered a judgment against Thomas J. Morris, in the circuit court of Putnam county, West Virginia, for $265.85, debt and interest, and for costs, etc.
In October, 1881, Curry brought suit on the judgment, against Morris before a justice of the peace of White county, alleging in the complaint that the judgment was obtained in the West Virginia court, on personal service of process, and filing an authenticated transcript of the record of the writ, evidence of service, and judgment.
Moms filed four pleas in writing, in substance as follows r
1. “That the cause of action upon which the judgment, mentioned in the declaration was rendered, did not accrue-within twenty years next before the institution of said suit in which said judgment was recovered.
2. “That the cause of action upon which the judgment, was recovered in said declaration mentioned, did not accrue-within five years next before the institution of said suit in which said judgment was recovered, — because defendant says that the notes sued on upon which the judgment was. rendered, were executed on the--day of April, 1853, and under the laws of West Virginia, where said notes were executed, and said judgment rendered, no person can bring or maintain an action to recover money founded upon a. -contract in writing under seal, but within twenty yeai’s after the right shall have first accrued ; and no person can bring an action to recover money founded upon a contract in writing not under seal, but within five years after the right shall have first accrued.
3. “That on the--day of-, 1871, a discharge was granted defendant by the District Court of the United •States for the Eastern District of Arkansas, and thereby, and by force of which he was discharged of and from all ■debts, claims, liabilities or demands existing against him at that date, including the debt upon which the judgment mentioned in the declaration was obtained. A copy of said ■discharge is herewith filed.”
(The transcript of the order of discharge in bankruptcy bears date twelfth January, 1877, and relates back to twelfth February, 1874, the date the petition for adjudication was filed.)
4. “That on the--day of-, 1867, defendant paid to one ¥m. Hicks, a practicing attorney, and who was •at the time the attorney of the plaintiff, the sum of $25.00, which was then and there accepted by said’ Hicks, as attorney for plaintiff, as a full and complete payment and settlement of the notes upon which the judgment was obtained.”
The justice sustained the plea of bankruptcy, and ren -dered judgment discharging defendant, and plaintiff appealed to the circuit court.
In the circuit court plaintiff entered a general demurrer to all of the pleas, which the court sustained, and defendant ■declining to make any further defense, judgment was rendered against him, in favor of plaintiff, for the amount" of the judgment sued on, and defendant appealed to this court.
The pleas of limitation, bankruptcy, and accord and satisfaction, all go back of the judgment sued on, to the orig inal cause of action, and attempt to treat the judgment as of no legal validity or conclusiveness,
Where a suit is brought in a court of one State upon a. judgment recovered in a court of another, and jurisdiction 0 J of the subject matter and of the person is made to appear,, the judgment is conclusive as to other matters. Peel v. January et al, 35 Ark., 337, and cases cited.
None of the pleas questioned the jurisdiction of the West Virginia Court of the subject matter, or the person of appellant. See Barkman v. Hopkins et al., 11 Ark., 157; Kimball v. Merrick, 20 Ib., 12. The pleas simply ignored the judgment, and when the demurrer to them was sustained,, appellant declined to make any other or further defense.
Upon the record before us, the judgment must be treated as of the same conclusiveness as if it had been rendered in a court of this State.
The demurrer was properly sustained to all the pleas-They should have been pleaded to the suit in the West Virginia Court. Clark & Wife v. Anthony & Wife, 31 Ark., 549.
In an action upon a judgment, the defendant is estopped from setting u*p any matter, in defense, that was actually determined, or that might have been litigated in the proceedings on which the recovery was had. Benjamin F. & Sarah A. Ellis v. Clark et al., 19 Ark., 420.
The plea of bankruptcy was as bad as the other pleas,. Appellant obtained his discharge in bankruptcy before the-institution of the suit in the West Virginia Court, and should have pleaded it in that suit. In this suit, on the judgment, the plea was too late.
‘In an action on a judgment of another State, a certificate of discharge in bankruptcy, obtained before the rendition, of the judgment, is no defense. Rees v. Butler, 18 Mo., 173.
The discharge will not avail unless it is pleaded before- judgment rendered. Bank of Missouri v. Franciscus, 15 Mo., 308.
Affirmed. | [
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Smith, J.
This action against the railway company was-brought by John D. Townsend, who sues ás administrator of .John Willette, deceased.
The complaint alleges, in substance, that on and before the tenth day of October, 1881, John Willette was in the employ of defendant company as brakeman on one of their trains of cars.
That defendant’s railway, in the town of Conway, in Eaulkner county, was in a defective, unsafe and dangerous condition in this, that a culvert in the track in said town of •Conway was left uncovered, and the cross-ties overthe same had become rotten and unfit for use. That the company, in wanton disregard of their duty, well knowing of such ■defects, continued to run their trains over such defective road, and to require their employes, among whom was the «aid John Willette, to operate their trains, and to couple ■and uncouple cars over such defective road after the company had notice of such defects.
That said John Willette, while engaged in the perform•ance of his duties as such br'akeman, under his contract, by ■direction of defendant, without fault on his part, and while coupling and uncoupling cars on said road in said town -of Conway, was, by the breaking and giving way of a part of said roadway over the said culvert, thrown into the said culvert and run over by defendant’s cars, and then •and there, by defendant’s willful and gross negligence, wounded, cut and bruised, and from the effects of the •same, afterwards, on the tenth day of October, 1881, ■died.
That said Willette was an adult and unmarried at the 'time of his death.
The damages were laid at $10,500.
The defendant admits the injury by which the deceased lost his life, but denies that it occurred in the manner ■stated, or through any defect of road-bed or culvert, or on account of any culvert being uncovered, or rotten ties, or through or on account of any negligence or want of care on the part of defendant in the use of proper road-bed or tools •or machinery, or in the selection of servants or employes, or on account of any other negligence or fault of the defendant, but alleges that he came to his death by unavoidable accident, or by and on account of his own carelessness, ■or the risks incident to his employment.
The jury gave the plaintiff a verdict for $3,910, which* included $110 funeral expenses.
A motion to arrest the judgment was overruled. It is, now contended that the judgment should have been arrested because the complaint does not show that the deceased left any relations who were injured by his death, and that, his administrator cannot maintain an action for such a cause for the general benefit of the estate. It is insisted that, causing the death of a man does not damage his estate, and that, damages being the substance of the action, in the nature of things, if there be no damage, there can be no right of action.
In the absence of a statute this contention would be correct. For an injury resulting in death the common law gave no action to any one. But at the time of Willette’s, death the following statutory provisions were in force:
. Gantt’s Digest, sec. 4,760: “For wrongs done to the person or property of another, an action may be maintained against the wrongdoers, and such action may be brought by the person injured, or after his death by his executor or administrator against such wrongdoer * * * in the same manner and with like effect in all respects as actions founded on contracts.”
Act of February 3, 1875, sec. 1: “All railroads-which are run, or may be hereafter built and operated in whole or in part in this State, shall be responsible for all damages to persons and pioperty done or caused by the running of trains in this State.”
Sec. 3: “ When any adult person be killed by railroad trains running in this State, the husband may sue for damages to a wife. In all other cases the legal representative shall sue.”
.Since the present appeal was taken, our legislature has, enacted another law, requiring compensation to be made for-causing death by a wrongful act, neglect or default, modeled after Lord Campbell’s “act for compensating the families of persons killed by accidents” (August26, 1846, 9 and 10 Victoria, c. 93). It provides that the action shall be-brought in the name of the personal representatives of the-deceased, or if there be none, then by his heirs at law; and' the amount recovered shall be for the exclusive benefit of the widow and next of kin ; and that the damages are to be estimated with reference to the pecuniary injuries resulting-from such death to the wife and the next of kin. Under similar statutes elsewhere it has been ruled that the existence of persons entitled to the amount recovered is essential to a recovery, and must be alleged in the declaration- and proved on the trial; and that the measure of damages is the pecuniary injury suffered by the person or persons-for'whose use the action is prosecuted. And the judgment,, though recovered in the name of the personal representative of the deceased, does not become assets of the estate. The relation of the administrator to the fund, when recovered, is not that of the representative of the deceased, but he is a mere trustee for the widow and next of kin. Pierce on Railroads, Ed. 1881, p. p. 392—3 and cases cited in notes; Dennick v. Railroad Co., 103 U. S. 11 ; Perry v. St. Joe & W. R. Co., 29 Kans., 420.
But the act of March 6, 1883, having become a law since the casualty here complained of, has no bearing on this case. And since .all of the arguments of the appellant’s counsel against the administrator’s right to sue for the benefit of the estate are drawn from the construction placed by the courts upon Lord Campbell’s act and similar statutes, we might dismiss this branch of the case without further remark. We will say, however, that although the Act of February 5, 1876, is crude, loosely drawn and imperfect, yet its meaning is not obscure. It gives to the legal representative, that is, to the administrator, the right to recover damages for the negligent killing of his intestate by a railroad train. And the amount recovered is apart of the personal assets of the deceased, and takes the direction given them by the law; that is to say, one-third of the amount is to be distributed to the widow, if there be any; then creditors are to be paid in full or pro rata, according to circumstances ; and the surplus, if any, goes to the next ■of kin in the proportion provided for in the distribution of personal property under the statute.
Now as a question of power, it is just as competent for the legislature to provide that the fruits of such a judgment ■shall be assets in the hands of the administrator, as it is to provide that they shall be distributed to the widow and next ■of kin. The authority of the legislature in the regulation of legal remedies is supreme.- ' And the difficulty as to the proper measure of damages is one which is inherent in the subject and is as great whether the action be for the benefit of the estate in general, or for the benefit of the widow and next of kin; or if there is a difference, it is a difference only in degree. 'The same difficulty presents itself where a person is wounded by the negligent operation of a train, and the action is in jhis own name. “There can be no fixed measure of compensation for the pain and anguish of body and mind, nor for ■the loss of time and care in business, or the permanent injury to health and body. So, when the suit is brought by the representative, the pecuniary injury resulting from the ■death to the next of kin is.equally uncertain and indefinite. .If the deceased hadlived, they may zzot have been benefited, and if zzot, then no pecuniary injury could have resulted to them from his death. So, when the action is for the benefit of his estate, it is possible that, if the intestate 'had not been killed, he might, nevertheless, not have lived long, or he might have become a cripple, or an invalid, and incapable of earning anything, or if he had lived to old age, might never have accumulated any property. The statute seems to proceed on the idea that, “if the person injured had survived and recovered, he would have added so much to his personal estate, which the law, on his death, if intestate, would have passed over” to his personal representative to be administered according to law. “In case of his death by the injury, the equivalent is given by a suit in the name of his representative.” In all the cases put, it is difficult to get at the pecuniary loss with precision or accuracy, and, in all, the result must be left to turn mainly upon the sound sense and deliberate judgment of the jury. Railroad Company v. Barron, 5 Wall., 90.
In connection with the power of the legislature to prescribe the mode of proceeding to compel the wrong-doer to make compensation for a fatal injury to those who are directly interested in the life of a person wrongfully killed, we notice that in Massachusetts, Maine and New Hampshire, the remedy is by prosecution on behalf of the State, in form, criminal, for the recovery of a fine, to be distributed among certain relatives of the deceased. Pierce on Railroads, 387, where the Massachusetts’ statute is copied in extenso.
The act February 3rd, 1875, sets a value in money upon the life of a human being, and for its wrongful or negligent deprivation by a railroad corporation, gives a right of action to the administrator, who represents, collectively, all who were interested in the continuance of that life, whether as wife, as creditor, or as distributee.
II. The defendant also moved the court below to grant it a new trial, because the verdict waS without evidence to sustaiu it, and was contrary to law and the instructions of the court, and for misdirection of the jury, and for excessive damages. The evidence tended to show that Willette was a brakeman, attached to one .of the company’s freight trains ; that he had been in its employment for two and one-half months, and that his business was to couple and uncouple cars, and to stop the train. He was twenty- five years old, was sound and healthy, as we learn from the testimony of his father, and his wages were two dollars and fifty cents per diem. He met his death at Conway station •on a dark and rainy night. The train hands were switching •some cars from the side track to the main track. When the cars were got upon the main track, he was told by theconduc-* tor of the train to cut off four of them. In the act of doing this he fell under the wheels and was run over. No witnesses knew what caused him to fall under the wheels. A fellow-brakeman who was nearest to him and the first to reach him after his fall, died before the trial. The conductor, who was the next person to go to him, did not see him when he fell.
But it was the plaintiff’s theory that his intestate got down between the two cars to pullout the coupling-pin, and the train starting to move backwards, he placed his foot on a cross-tie, which, on account of its age and rottenness, broke under his weight and precipitated him under the wheels. All the evidence that can be found in the record to support this theory is, in substance, as follows : There was an open or uncovered culvert one hundred and fifty yards from the depot, eight feet wide and two or three feet deep, made to drain off the waters of the surrounding country. Between the rails a plank ten or twelve inches wide spanned the Culvert. The cars which Willette was required to uncouple were standing on this culvert. Next morning the coroner, in examining the spot, found, at the bottom of the culvert, a piece of sap wood that had scaled off the edge of a tie. This piece of wood was between nine and twelve inches long, and one or two inches thick. There was dirt on the tie or on the piece of wood and the appearance of something having pressed down the piece off the tie, but no impression of a man’s foot. There was no evidence that this tie was rotten except the sap surface.
This is a slender thread to hang a verdict upon, which, in ■order to stand, must be based upon affirmative proof of the ■company’s negligence. No connection is shown between the alleged defect in the culvert and Willette’s death. Sev■eral persons — it is impossible to say how many, but certainly those who came and removed the body — had been around and about the spot, any one of whom might have-kicked off: this fragment of decayed wood, as well as Willette. The fact that the culvert was uncovered is not prima fa•cie proof of negligence, since the legislature has not required •them to be covered, nor is it customary to cover them, nor is its open condition proved to have had any relation to the injury complained of. If Willette had slipped into the culvert the cars would probably have mutilated his body or legs, but such was not the case.
The court gave the following amongst other directions :
“If the jury believe from the evidence and circumstances ■of this case that plaintiff’s intestate was killed by reason of ■defective and decayed cross-ties over a culvert on the road •of defendant, when it was necessary for the deceased and •other employes of defendant, frequently to pass in coupling and uncoupling cars, and that said defendant railroad ■company, through its agents, knew of said defect, or might have known by the use of ordinary care or diligence ; and if the jury find further, that said cross-tie was so defective or decayed as its use would naturally and reasonably be dangerous, they should find for plaintiff, unless they also find that said intestate was also in fault at the time of the ■accident, and by reason of his fault contributed to the injury; or that he knew that the cross-tie was decayed or defective, or ought by ordinary care to have known it, and that the defects were of such a nature as would induce him reasonably to foresee what might endanger his safety.
“If there was a culvert at the place at which deceased was killed, and “over which the deceased or other employes of defendant had frequently to pass in coupling and uncoupling cars, it was the duty of defendant to exercise ordinary care in the construction and maintenance of such culvert to protect the employes of defendant from accident. And if the jury find from the evidence that defendant failed to exercise ordinary care in the construction imd maintenance of said culvert, and that deceased was-thrown down by reason of the defects in said culvert and killed by the cars, they will find for the plaintiff, unless-they also find that such defects were known to the deceased, or by the exercise of ordinary care and caution he ought to-have known them.' ’
These instructions were inapplicable to any state of facts-in proof, and were calculated to mislead the jury, There-was no testimony from which the jury could legitimately infer that Willette was thrown down and killed by reason of a defective culvert or a defective cross-tie. Instructions-should not be based upon unproved hypotheses.
In the first place there was no evidence of any defect in-the culvert or in the tie. They were constructed and placed in position to form a secure road-bed for the passage of defendant’s trains, not to furnish a footpath or standing place for defendant’s employes or others; and there is nothing to show that they were inadequate or ill-adaptedAo the purpose for which they were designed.
The court also refused the following prayer of the defendant :
‘ the jury believe from the evidence that the deceased, in the performance of his duty as the employe of the company, upon the culvert under the road-bed to couple or uncouple cars, and was injured thereby, or by stepping upon the edge of a tie at the side of the culvert, such edge-scaling and giving away, whereby he fell and was injured, such facts do not tend to prove negligence on the part of .the defendant.”
The employment of brakeman on a railroad is extra hazardous in its nature. Eor this he is in some degree compensated by high wages paid for mere manual labor, not requiring any special skill or previous training. He assumes all risks necessarily incident to his employment, and to give him a right of action against his employer for an injury sustained in its service, the company must have owed him some duty arising from contract or from the relation itself and a failure to perform that duty must have been the proximate cause of the injury. Undoubtedly the master is bound to furnish his servants with proper machinery, agencies and instrumentalities for the due conduct of his business ; and this in the case of a railway company includes a safe and sufficient roadway. But here the road-bed appears to have been in good repair. The fact that the sap surface of the tie had partially decayed is no indication that it was too unsound to support the weight of the trains. This is probably more or less the case with all wooden ties in a few months after they are laid down.
We cannot say as matter of law that it was the defend-want’s duty to furnish the plaintiff’s intestate with a safe standing place when he alighted to couple or uncouple cars. In fact there was no necessity to alight at all, as the order given might as well have been executed by means of the brake-rod.
Eor the errors above indicated, the judgment is reversed and a new trial granted. | [
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Eakin, J.
Hudson became county treasurer in October,, 1882, gave bond and received from the hands of his predecessor $4,472.30, belonging to the school fund. He applied to the county court in October, 1883, to be allowed 2 per cent, commission on this fund in settlement. The application was refused, but on appeal to the circuit court it was sustained, and the judgment was ordered to be certified to the county court for its guidance. The county appeals.
The language of the statute is : “ The county treasurer shall be allowed as commissions on the aggregate amount of school funds of the county coming into his hands in any one year the rate of 2 per cent, and no more. ”
It will be observed that no distinction is made as to the source from which the fund must come. The letter of the statute applies as well to funds coming from the former treasurer as to those from the collector or sheriff.
There is no reason in compelling the treasurer to give bond and assume the custody of funds already collected, under a grave responsibility, and confining him to the receipts which come in during his term of office for his compensation. We cannot suppose the legislature intended that. He is not entrusted with the collection of revenue. His duties appertain principally to its safe keeping and payment, on proper warrants.
Affirm. | [
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Eakin, J.
Appellant brought ejectment against Plunkett,, upon the U. S. Receiver’s receipt for a homestead entry of the land in controversy, dated December 22d, 1881, No. 12,995. The receipt is for the fee and compensation of the receiver for the entry of the land under sec. 2290, Rev.. Statutes of the United States, and describes the land-
The defendant set up the matters which appear in the-agreed statement of facts, which was all the evidence. Upon it the court directed the jury to return a verdict for defendant from which plaintiff appeals — judgment having been duly entered, and the points properly saved.
The statement is, substantially, this :
On the first of May, 1874, the land was entered as a. homestead by T. D. Burress at the office in Little Rock.. He died next summer, leaving a widow, after having cleared six or seven acres, and built a stable. In the following-October, Plunkett bought the improvements from the widow for $120, and procured her relinquishment to the-government,intending to move upon the land and improve and cultivate it, and enter it as his homestead as soon as the entry of Burress should be cancelled. In pursuance of this intention, he built a house on the land in the latter part of 1874,. moved on it in 1875, and made other buildings and valuable improvements, worth altogether about $350 — all in good faith and with the view of entering the land in accordance with law —and all of which was known to plaintiff when he made his-entry. In the fall of 1879, he advised the officers at the land office of his intention to homestead the land, and of his-improvements. He was again at the office in 1880, when the register advised him that he would notify the clerk of Conway county of the cancellation of the former entry as-soon as it was made, and that he would have thirty days to-make his entry after being advised of the cancellation. Defendant received this notice from the clerk on the twenty-fourth day of December, 1881, which was Saturday; and on the twenty-sixth he filed his declaratory statement for a preemption, being unable at the time to pay the fees for homesteading — which filing was within thirty days of the cancellation, and within thirty days after notice. That he obtained the receipt and certificate of the register on the twenty-seventh December, 1881. The plaintiff obtained a homestead certificate and receipt for the same land on the twenty-second of December, 1881, being the one exhibited with his complaint. Defendant was in possession.
The action of ejectment, still so-called, is a possessory action, and may be maintained in this State in all cases ^ where there is a legal right of possession against one who wrongfuly holds possession from the person having the better right.
In Gaither v. Lawson, 31 Ark., 279, the action was brought upon a receipt for a homestead entry, just like this, and sustained. This was followed in Brummett v. Pearle, 36 Ark., 471. In the latter case it was held that the legality of the entry could not be questioned by one in possession without right, but that it might be vacated by the government.
Upon the cancellation of the entry of Burress, the became immediately subject to entry by the first applicant.. Whether the entry was made under circumstances which, if known at the land office, would have caused the application to be rejected; or whether now, upon a contest between complainant and defendant on his declaratory statement, the United States government would declare the right of defendant superior, and cancel the entry of complainant, are not questions for this court. The entry of complainant is the older and prior claim, and in ejectment must, until vacated, be held to give a better right.
The directions to the jury, which were equivalent to a declaration of law, were erroneous.
Reverse and remand for a new trial. | [
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Eakin, J.
Calloway, receiver in chancery, in a suit which had been instituted to subject the effects of the firm of Scarborough & Co., of which Sophia Reading was a member, to distribution amongst its creditors, came into possession of a promissory note for $500, executed by J. T. Brown, Jr., to Sophia Reading, This note had been endorsed and placed in the hands of the Merchants National Bank as collateral security for a loan of $250, made by the bank to said firm. The bank was a party to the creditors’ suit in chancery, and was allowed to come in and participate-in the general distribution of the effects, upon condition that it should bring into court its collateral security for the benefit of the fund. To these terms it acceded, and received somero rata dividends derived from other sources. The receiver afterwards, by order of the chancery court,, brought this suit.
The defences were : First, that the note to Sophia Reading was without consideration. This was shown to the court, sitting both upon the facts and the law, by the record of a previous case between the maker and payee, in which it had been held that the same contract of sale upon which this note was founded was without consideration. Of this ruling the appellant cannot complain.
Next it was pleaded that the bank had notice of the defect in the note when it took the same as collateral. The evidence on this point was sufficient to support the finding ■of the judge, that the bank was a bona fide holder. Such a ■bona fide holder of paper taken as collateral at the time of the loan, or upon a new consideration afterwards, is, by all the authorities, held entitled to the protection of an endorsee. The only conflict of authority, and that is very great, arises in cases of paper taken as additional security for a pre-existing debt without new consideration. In this case the collateral was taken at the time of the loan.
The receiver recovered, not the full amount of Brown’s note, but the amount of the bank’s note against the Scarborough firm, which Brown’s note was given to secure. This was the correct ruling in the case of a bona fide holder of collaterals, subject to a good defense against the transferrer. The protection is only extended to him as far as his necessities require. See Danl. on Neg. Inst., see. 382, on p. 683, vol. 1.
It was contended that the dividends received by the bank, after the note passed to the receiver, should have been credited on the note. This cannot on principle be maintained. The note was in the control of a court of equity for the distribution of its proceeds. It had decided to marshal it. That is to say, to let in the bank upon the general fund, and subrogate the other creditors pro rata to the proceeds of the note. The note was in the hands of the receiver for that purpose, and the law court was bound in comity to lend its aid in the collection. It would defeat the object and purposes of the chancery court to allow a credit on the note of dividends paid to the bank out of the general fund. The note, no longer, after it went into the hands of the receiver,belonged to the bank. It belonged to the creditors as it was when the receiver took it, and should be collected to the full amount then due the bank, for distribution amongst all.
There is no error in the judgment. Affirm. | [
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Smith, J.
This was ejectment for one hundred and sixty acres of land. The plaintiffs claim by inheritance from their father, who, it was alleged, had died seized and in possession of the premises. The defendants, who held different portions of the same tract, admitted that the-father of the plaintiffs was in possession at the time of his-death, but deny that he was ever seized of two-sixths parts-of the land, and for these two-sixths they deduce title from sources independent of him. Of the remaining four-sixths they deny that he died seized, alleging that he had in his lifetime sold and conveyed his interest to one Kimbro, to-whom they undertake to trace back their own title. They also plead adverse enjoyment for more than seven years in bar of the action.
A jury trial resulted in a verdict for the defendants,, which the circuit court refused to disturb. The grounds of the motion for a new trial may be classified under three-heads.
1. Misdirection of the jury.
2. Insufficiency of the evidence to sustain the verdict and,
3, The admission ©f incompetent testimony. 1 J
The instructions which were excepted to relate to the-burden of proof. The court, in effect, told the jury that plaintiffs must make out their title by proof, and that, all presumptions were to be indulged in favor of the lawful possession of the defendants. This was correct as to the-two-sixth interest; but as to the remaining four-sixths, theprima facie title of the plaintiffs was admitted by the pleadings and it devolved upon the defendants, under the issues formed, to avoid that title by proof that the ancestor had conveyed the land away, or that his heirs were barred by the statute of limitations.
The evidence tended to show that the lands had once-belonged to Edward Mattox, who died in 1856, leaving six heirs at law, to whom the land had descended. Fergus Snoddy, the ancestor of the plaintiffs, had married one of the heirs and by purchase had acquired the share of four-others. . After Snoddy’s death, his widow married again and she joined her second husband in conveying her share to one McCall, from whom the defendants have an unbroken chain of title. James Mattox, the sixth heir, also conveyed his share to one Chandler, under whom the defendants hold. So it is proved that the interest of Fergus Snoddy never exceeded four undivided sixth parts, and consequently the plaintiffs have shown no such title to two-sixths of the land as requires any second trial.
Shortly before his death, which occurred in November, 1862, Snoddy agreed to sell the land to one Kimbro for four negro slaves. But there is no sufficient evidence in the record that any deed was ever made, nor even that the terms of the agreement were reduced to writing in a bond for title, or other memorandum signed by Snoddy. The court allowed some hearsay testimony on this subject to go to -the jury, such as declarations by Kimbro that he had received a deed, and statements by a party who once claimed an interest in the land to the effect that he had formerly employed a lawyer to investigate the title, and the lawyer had given a favorable report. But no witness testified that he had ever seen such a deed, or had any personal knowledge on the subject, or that he had ever heard Snoddy admit that he had executed one. On the contraiy the evidence adduced for both parties fairly shows that the exchange was not to be completed by the delivery of the slaves, the execution of a deed and the change of the possession of the land, until the first day of January, 1863. And before that day arrived Snoddy was dead. However, before his death,. Kimbro had delivered two of the negroes. And there is. some evidence that, with Snoddy’s assent, he had begun the erection of a house. On the first of January, 1863, he-delivered to Mrs. Snoddy the other two slaves and she yielded to him possession of the place.
Kimbro and persons claiming under him, including the present defendants, have held the land ever since. But Snoddy’s heirs were at that time all infants. One of them, the plaintiff, Mrs. Shirey, had been of full age more than three years before the commencment of this action. Of the others, one was still a minor when the action was begun, and two had so recently become of age as not to be barred.
The verdict as against Mrs. Shirey was right. As against her eo-plaiutiffs it was unsupported by the evidence to the extent of their interest in the land of which their father died seized. The burden was upon defendants to prove that Snoddy had conveyed the land in his lifetime. So far from doing this, the testimony leaves no doubt upon our minds that it was a parol contract for the sale of land.
Whether there has been sufficient part .performance to take the case out of the statute of frauds, we do not stop to enquire. - Partial performance is an equitable doctrine and 1 1 it is probable the defendants would be compelled to transfer the cause to equity and file a cross-bill in order to get the benefit of it. But even in that court the part performance of the contract must have taken place in Snoddy’s lifetime. Nothing that was done after his death would bind his infant heirs.
The judgment as to Mrs. Shirey and her husband is affirmed, as it is also affirmed in regard to the other appellants to the extent of two-sixths of the land. This disposes of three-sixths of the land in favor of the appellees, leaving only an undivided half of the land to be litigated for. In other respects the judgment is, for the errors above indicated, reversed, and the cause is remanded for a new trial, with leave to the appellees to amend their pleading if they shall be so advised. | [
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OPINION.
Larceny, at common law, is defined to be “the felonious-taking and carrying away of the personal goods of another.” —Blackstone.
By the common law there can be no larceny of animalsferae naturae, or wild animals, unreclaimed. When reclaimed they become the subject of this offense, provided they are fit for food, not otherwise.
But the English courts made exceptions to the rule, that. reclaimed animals, to be the subject of larceny, must be fit for food. Thus the tamed hawk was held to be the subject-of larceny, though unfit for food, because it served to-amuse the English gentlemen in their fowling sports. So-reclaimed honey bees were made an exception, because», though not fit for food themselves, their honey is.
Under decisions of English and American courts, made upon the common law definition of larceny, Mr. Bishop classes the following animals, when reclaimed, as the subjects of the offense: Pigeons, doves, hares, conies, deer» swans, wild boars, cranes, pheasants, partridges and fish suitable for food, including oysters.
To which might be safely added wild turkeys, geese» ducks, etc., when reclaimed.
Of those animals of which there can be no larceny, though reclaimed, he puts down the following: Dogs, cats, bears, foxes, apes, monkeys, polecats, ferrets, squirrels, parrots, singing birds, martins and coons.
In the South, squirrels are in common use as food animals, and the hunters of all climates regard bears as good food.
Iowa is credited with the decision (Warren v. State, 1 Green 106) that coons are unfit for food, and therefore by the common law, not the subject of larceny, when reclaimed.
Among the colored people of the South the coon when fat in the fall and winter, is regarded as a luxury, and the Iowa decision would not be regarded by them as sound law or good taste.
On the whole subject, see 2 Bishop on Criminal Law,. (6th Ed.) secs. 757, 781 and notes.
Every species of personal property was not the subject of larceny at common law. For example, dogs were treated as personal property, and on the death of their owner, if not disposed of by will, went to his executor or administrator as such. So the owner of a dog could bring a civil action against one who injured or took the animal.
So choses in action, as bonds, bills, notes, etc., were classed as personal property, and subjects of the action of detenue, etc., but larceny could not be committed of them*
Under the technical rules of the ancient common law, says Me. Bishop, prevailing still, except as expanded by statutes, larceny was restricted, as to the property of which it could be committed, as well as in some other respects,, within limits too narrow to meet the requirements of a more refined and commercial age. Consequently statutes in England and in the United States have greatly enlarged the common law doctrine. — Ib. sec. 761.
The provisions of the larceny statute of this State are very broad and comprehensive. The first section defines- the crime thus : “Larceny is the felonious stealing, taking and carrying, riding or driving away the personal property ■of another. ” This perhaps is not more comprehensive than the common law definition.
The second section declares that ‘ ‘ larceny shall embrace -every theft which unlawfully deprives another of his money ■or other personal property, or those means and muniments by which the right and title to property, real or personal may be ascertained.”
The third section makes any bank note, bond, bill, note, receipt, or any instrument of writing whatever, of value to the owner, the subject of larceny.
The fourth section declares that “the taking and removing awajr any goods or personal chattels of any kiud whatever, with intent to steal the same, whether the articles ■stolen be in the immediate possession of the owner or not, unless it shall appear that the owner has abandoned his ■claim thereto, shall be deemed larceny. ” — Gantt’s Digest, secs. 1352-7.
Under similar statutes of New York and Tennessee, it has been decided that dogs are the subject of larceny. — Mullalley v. People, 86 New YorJc ( Court of Appeals'), 365; State v. Brown, 9 Baxter (Tennl), 53. Though in the ■States where the common law has not been enlarged by ■statute, the rulings have been otherwise.
In Mullally v. People, it was well said by Justice Eaele, who delivered the opinion of the court, that ‘ ‘in nearly every household in the land can be found chattels kept for the mere whim and pleasure of its owner ; a source of solace after serious labor, exercising a refining and elevating influence ; and yet they are as much under the protection of the law as chattels purely useful and absolutely essential. ”
The reclaimed mocking bird in question was no doubt personal property. The owner could have brought trespass against the thief, who invaded her portico at night, and deprived her of the possession of her songster, which she prized above price; and she could have maintained replevin against the person to whom he sold it, had he refused to surrender it to her.
The market value of the bird was, perhaps, more than ten times greater than that of the cage, which was the subject of petit larceny. To hold that larceny might be committed of the cage, but not of the bird, would be neither good law nor common sense.
Affirmed. | [
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Smith, J.
Richardson filed his bill in equity, alleging that he had conveyed certain lands to the defendant, Neel, by a deed absolute in form, but intended to operate only as a mortgage security; that Neel, in consideration thereof, was to pay certain specified debts of the plaintiff, and that he had been fully repaid out of the rents and proceeds of the sale of some of the lands, all sums so advanced by him, but had neglected to pay some of the scheduled debts. The prayer was to have the deed declared a mortgage and for a reconveyance and an accounting.
After service of the summons and after some depositions had been taken for the plaintiff, but before answer filed, Richardson died, and Neel, the defendant in the suit, was appointed his administrator. As such administrator he caused an order for the dismissal of the cause to be entered in vacation. At the next term of court, the unpaid creditors of Richardson asked to be made parties and for the appointment of an administrator ad litem. Mr. Grace, Richardson’s solicitor, also moved for the appointment of a special administrator, and for leave to prosecute the suit himself in order to. recover his fee and costs that he had advanced. These motions were all denied, it being made to appear to the court below that it was not the intention, nor desire of Richardson’s heirs that the suit should be revived, :and on motion of Neel, the case was dismissed. Grace and ithe creditors have prosecuted this appeal.
Upon the death of a sole plaintiff, an action may be revived in the name of his representatives, to whom his right has passed. Where his right has passed to his personal representative, the revivor shall be in his name; where it has passed to his heirs, or to his devisees, who could sup.port the action if brought anew, the revivor may be in their name. Gantt's Dig., sec. 4774.
In Anderson v. Levy, 33 Ark., 665, — a suit involving :the title to lands — the plaintiff had died and the cause was revived in the name of his administrator, and proceeded to a decree. This court said : “The decree and all proceedings in the court below, with regard to the land, after suggestion of McCrary’s death, were erroneous. The administrator might have prosecuted the suit for an account against Eartee and a personal decree ; but that branch of the case was abandoned. Upon the death of a party the title to his lands passes at once to his heirs or devisees and the administrator cannot represent them in court. In all cases where title is to be affected they are necessary parties. It is well settled that the heirs of a mortgagor are necessary parties defendant to a bill to foreclose, or as complainants in a bill to redeem. A bill to assert an equitable title to land, to which the legal title is in another is in fact a bill to redeem. 'The success or failure of it affects the heirs and they must be brought in. * * * The court should, of its own motion, refuse to proceed until the heirs are brought in and ■can have an opportunity to be heard.” See also Haley v. Taylor, 39 Ark., 104; Sisk v. Almon, 34 Id., 391; S. G., 40 Id.
Here the heirs of Richardson were indispensable parties •plaintiff, although the administrator might have been .... ° 1 1 ■erly joined in consideration of his possessory right to' the ¡real estate of his intestate for the payment of debts, and of the fact that the taking of an account was part of the relief demanded by the bill. The appellants did not ask that the-suit should be revived in the name of these heirs. If they had done so, their request should have been refused,, “because such a proceeding- would be practically instituting-a new action, and forcing a pai’ty, at the instance of one-who has no right to demand it, to commence an action when-he does not wish to do so.” State use, etc., v. Rottaken, 34 Ark., 144.
But it was proposed to revive this cause in the name of' administrator ad litem. The act of January 10th, 1851,. ( Could’s Rig., ch, 1, secs. 9-12) authorizing the appointment of a special administrator by the court in which a suit is pending, in case of the death of one of the parties, has not been brought forward into Gantt’s Digest, although it was declared in Wade v. Bridges, 24 Ark., 569, to be constitutional. And in Mangum v. Cooper, 28 Id., 253, it. was decided that this statute had never been repealed. Assuming, then, for present purposes, that the law is still in force, yet it expressly provides that no such appointment shall -be made where there is a general administrator. So-that there is no room here for the operation of the act. And there was, the principal relief demanded by the bill cannot be attained unless the heirs of Richardson are willing for their names to be used in the revivor and prosecution of the suit.
The appellants are not without remedy, however. Mr. Grace doubtless has a meritorious claim against the estate-of Richardson ; although this remedy may prove to be inefficacious, as suggested here, on account of the insolvency of the estate. Then he certainly has a retaining lien upon the-deeds, papers and securities entrusted to him by his client . . and possibly, although on this point we express no opinion, his lien may extend to the subject of the suit, so that it may-not be defeated by a collusive settlement between the- defendant and those who have succeeded to Richardson’s rights. Compare on this subject, Gist v. Hanley, 33 Ark., 233; Compton v. State, 38 Id., 601 ; Carpenter v. 6th Av. R. Co., 1 Am. Reg. U. S., 410 and note.
. Again, if Neel received the property, as alleged in the bill, under a promise to pay Richardson’s debts, a trust, it should seem attaches to the property, which the creditors may enforce by appropriate suits. And there are indications in the record that some or all of these creditors, are pursuing the property in the federal courts.
All that we mean to decide is, that whatever rights the appellants have must be asserted in independent suits. They cannot ingraft their claims for relief upon the dead stock of a suit which has abated, nor attach them as a tail to a kite which has already descended to the ground.
The decree below is affirmed without prejudice to the right of the appellants to institute new suits. | [
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JOHN B. ROBBINS, Judge.
| ]Appellant Stephanie Feagin and cross-appellant Shawn Jackson appeal an order entered by the White County Circuit Court concerning real property, personal property, and an unpaid loan. The appeal returns to us following our dismissal due to lack of a final order. Feagin v. Jackson, 2011 Ark. App. 236, 2011 WL 1166811. After our dismissal, the trial court entered a subsequent order on August 9, 2011, amending its prior judgment to include a Rule 54(b) certificate that included specific reasons why the order should be appeal-able and that there is no just reason for delay. We believe the trial court to have provided a sufficient Rule 54(b) certificate to render this a final order for purposes of appeal. Appellant and appellee filed timely notices of appeal and cross-appeal. We affirm on direct appeal and cross-appeal.
We previously described the events leading to litigation in our earlier opinion, but we will reiterate an overview to frame the issues on appeal. Appellant, Stephanie Feagin, and appellee, Shawn Jackson, were in a romantic relationship in December 2008 when Stephanie |2provided the money to pay the entire purchase price ($150,072.73) for Lots 5, 6, and 7 in the Southern Hills Estates subdivision in Sear-cy, Arkansas. The warranty deed was titled in both of their names, denoted single persons, as joint tenants with the right of survivorship. In April 2009, they sold Lot 7 for $37,000, and the buyers began making monthly installment payments. They retained the mineral rights in the sale of Lot 7. The relationship between Stephanie and Shawn eventually soured, and the parties separated in the latter part of 2009.
Stephanie filed suit against Shawn in October 2009 seeking to reform the warranty deed to remove Shawn’s name as a joint tenant because she contended that it was there by mistake. She also sought to collect $30,000 she loaned to Shawn in January 2009 that he never repaid. In November 2009, Shawn answered, denying Stephanie’s allegations, offered several defenses, and filed a counterclaim seeking partition of the two remaining lots. Stephanie answered the counterclaim by stating that Shawn paid nothing toward the purchase of, the real-estate taxes assessed on, or any improvement to the property. She said that to order partition and equally divide the proceeds would result in unjust enrichment to Shawn. In January 2010, Stephanie amended her complaint to acknowledge that placing both their names on the warranty deed was not a mistake, but neither was it a gift from her to Shawn, so that “he has no equitable interest in the property.”
|sThe case was tried to the bench in June 2010. In opening statements, Stephanie’s attorney abandoned her claim for reformation. After taking testimony and evidence, the trial judge found that Stephanie paid the entire purchase price and voluntarily caused title to be taken in both their names as joint tenants with the right of survivorship; that Shawn did not defraud or unduly influence Stephanie to do so; that each held an undivided one-half interest; that Lots 5 and 6, and the mineral rights to Lot 7, would be sold and the proceeds divided evenly; that Shawn was entitled to half of the proceeds generated by the earlier sale of Lot 7; that Shawn improved the value of the lots with landscaping, labor, and improvements to the existing structure with no expectation of payment; that Stephanie failed to prove unjust enrichment; and that Stephanie was entitled to a $30,000 judgment against Shawn for his non-payment on the loan that would be deducted from his portion of sale proceeds. Both parties appeal from these findings.
Stephanie contends that it was clearly erroneous to find that she failed to prove that Shawn would be unjustly enriched to be awarded half the proceeds on these facts. Shawn contends that it was clearly erroneous to give Stephanie a $30,000 judgment on the loan because they agreed that her receipt of the sale proceeds from Lot 7 would satisfy that debt in full, evidencing the defense of accord and satisfaction.
|4We review findings made at a bench trial to determine whether they are clearly erroneous or clearly against the preponderance of the evidence. Sims v. Moser, 373 Ark. 491, 284 S.W.3d 505 (2008). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake was made after review of all the evidence. Id. Facts in dispute and credibility determinations are within the province of the fact-finder. Id. We are asked on appeal to determine the merit in each of their defense claims.
The testimony at trial revealed Shawn’s explanation of what happened. Shawn said that he was interested in owning this particular property before Stephanie became a part of his life, and he and the owners (the Marshalls) eventually came to an agreement for him to purchase three lots for $150,000 with owner financing. The lots were wooded property, 2.3 acres each. A metal building with an apartment was the only existing improvement at the time the lots were purchased. He said Stephanie offered to pay the full purchase price for him because she needed to quickly find somewhere to live right after her divorce. The deal was closed on December 22, 2008. Shawn testified that their intentions were for him to clear and prepare the property to build a house where they would live when they got married. He said he worked approximately ten months providing about 400 hours in general labor, dozing and landscaping in preparation for construction of a new home, and installing insulation and constructing a two-bedroom addition to the existing apartment for Stephanie’s daughters. He agreed Stephanie paid for the insulation and most of the construction items, but he believed his “sweat equity” was more than sufficient to fulfill his fair share of the purchase.
| jjShawn agreed he also borrowed $30,000 from Stephanie some time around Christmas 2008 so that he could pay off some of his debts and buy his daughter a car. He said he hoped to give Stephanie his employee bonus at the beginning of 2009, which he thought would be around $13,000, but he did not get a bonus. Shawn said that in April 2009 they sold one lot for $37,000, and Stephanie agreed to keep those proceeds in exchange for his debt. Shawn acknowledged that she already owned half, so his payment would be effectively $18,500, but he maintained that she agreed for that to wipe out the loan. Shawn provided additional testimony about personal property and other items not pertinent to the issues on appeal.
Stephanie testified that at the end of 2008, she was indeed in a hurry to find a place to live after her divorce. She knew Shawn was trying to buy these lots with owner financing, she paid the full price to complete the deal, and she knew that both of their names were on the title. She and her daughters moved into the existing apartment on the property. She said that their intent was that Shawn would clear the land and pay to have a house built for them to live in if they married. She said that they agreed if it did not work out, Shawn would pay her to take title to all the property or he would sign his interest back to her — meaning that one or the other would become sole owner.
Stephanie testified that while their relationship lasted, Shawn contributed some improvements, which she identified as the two additional rooms and clearing of about 4.6 acres. She described his dozer and clearing work as a mess and believed he only expended 40 to 50 hours to do it, which she valued at $5,000 “tops.” As for the loan, she said Shawn repeatedly asked to borrow $30,000 from her in December 2008 so that he could pay off | fisome debt, which she loaned him, and he promised to pay her back with his bonus at the first of the year. Stephanie denied that she agreed to extinguish the $30,000 debt in exchange for her retention of the proceeds of the Lot 7 sale.
Friends and neighbors testified as well, but their testimonies concerned the status of Stephanie and Shawn’s relationship, perceptions about whether certain pieces of personal property were or were not gifts, and estimations of how much labor Shawn put into the property. Most of them estimated their observations of Shawn’s labor to be more than 40 to 50 hours, but they could not confirm Shawn’s estimate of 400 hours. They had no information to substantiate the terms of any agreement between the parties about ownership of the real property. The remainder of the evidence included such items as photographs, cancelled checks, receipts, and real-estate documents.
At the end of the trial, the parties acknowledged that they were both title holders and that the property needed to be sold. After taking the matter under advisement, the trial court entered a letter opinion and orders reflecting the findings on appeal.
The thrust of Stephanie’s argument is that she and Shawn had an explicit agreement in contemplation of marriage that he did not honor, rendering it only fair for her to recoup $150,000 from the proceeds of sale. She restates her understanding of their agreement: she would pay the purchase price, he would clear the land and pay to have a house built, but if their relationship did not work out, he would buy the property from her or tender her full title. Shawn disagrees, contending that she paid for the lots, he agreed to provide labor to clear the property and to prepare it for construction, and “they” intended to build a house |7that would be “theirs.” Shawn again denies he ever agreed to repay her if the house was not’ built and they did not marry, and instead he contended that his labor and “sweat equity” more than met any obligation to contribute toward the purchase of the lots.
In sum, there was no house built, no sums expended for a house, no marriage, and title to this property remains in joint tenancy. The issue for us to decide on appeal is whether the trial court clearly erred in rejecting Stephanie’s unjust-enrichment argument. The issue of unjust enrichment is a question of fact. Grisanti v. Zanone, 2010 Ark. App. 545, 336 S.W.3d 886. Unjust enrichment constitutes an affirmative defense within the expansive def inition of Ark. R. Civ. P. 8(c). The burden of establishing a defense is upon the one asserting it. Baumgartner v. Rogers, 233 Ark. 387, 345 S.W.2d 476 (1961).
For a court to find unjust enrichment, a party must have received something of value to which he is not entitled and which he must restore. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. There also must be some operative act, intent, or situation to make the enrichment unjust and compensable. Id. One who is free from fault cannot be held to be unjustly enriched merely because he has chosen to exercise a legal or contractual right. Id. It is an equitable principle invoked to render a situation fair under the circumstances. See Le v. Nguyen, 2010 Ark. App. 712, 379 S.W.3d 573. Unjust enrichment is most often applied in the absence of a contract between the parties; it can be applied in exceptional circumstances even when there is a contract between the parties. See Campbell, supra.
This was a romantic relationship that failed, thwarting the ultimate goal of constructing a new home in which to live as husband and wife. Because both held legal title jointly, both |shad equal rights to any proceeds. The question is solely whether the trial court’s findings are clearly erroneous: that Stephanie failed to establish that Shawn’s retention of half interest in the proceeds of sale would constitute unjust enrichment. This was a matter driven by the specific facts and credibility determinations made at this bench trial. In reviewing this relationship, its evolution, and the efforts expended to improve the property, the trial court was not persuaded that it would be unfair for Shawn to retain his one-half interest. In general, the focus of unjust enrichment is based upon what the enriched person received rather than what the opposing party lost. Grisanti, supra. On de novo review, we are not left with a distinct and firm impression that the trial court made a mistake. Thus, we affirm on direct appeal.
On cross-appeal, Shawn contends that the trial court clearly erred in not finding that his debt to Stephanie was fulfilled by their agreement for her to take $18,500, his half from the sale of Lot 7. Accord and satisfaction was an affirmative defense that Shawn had the burden to prove. Housley v. Hensley, 100 Ark.App. 118, 265 S.W.3d 136 (2007). This defense is examined under the same general concepts of contract, and it presents a question of fact. Id. The trial court was not persuaded by Shawn’s assertion that this agreement existed or that Stephanie assented to it, a matter of credibility that we do not disturb on appeal.
Affirmed on direct appeal and cross-appeal.
MARTIN and HOOFMAN, JJ., agree.
. The parties were not in agreement as to the date they separated. One claimed it was in August; the other claimed it was October. The precise date is immaterial to the resolution of this appeal.
. There were other allegations regarding conversion of particular items of property and funds that are not germane to the arguments raised on appeal.
.Other findings concerned entitlement to items of personal property and to particular payments that are not at issue on appeal, so we do not recite them here. In addition, the trial court made findings on issues not asserted by the parties, such as whether either intended gifts to the other and whether one defrauded the other. Because this appeal focuses solely on the defense of unjust enrichment as to the proceeds of a partition sale, we do not address those particular findings. | [
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JOHN B. ROBBINS, Judge.
| lAppellee Leanna Chrisman sustained neck and back injuries while working as a certified nursing assistant for appellant St. Edward Mercy Medical Center on December 29, 2009. St. Edward accepted the injury as compensable and instructed her to see Dr. R. Cole Goodman for treatment. Dr. Goodman released Ms. Chrisman from his care on February 4, 2010, and St. Edward controverted any additional medical treatment beyond that time. Ms. Chrisman subsequently sought treatment from Dr. Arthur Johnson, who diagnosed a large herniation at C5-6 and performed an anterior cervical diskectomy with fusion on March 26, 2010. After a hearing on Ms. Chrisman’s claim for additional benefits, the administrative law judge found that she was entitled to compensation for the medical treatment provided by Dr. Johnson as well as temporary total disability benefits from March 4, 2010, through |2November 18, 2010. The Workers’ Compensation Commission affirmed and adopted the ALJ’s decision.
St. Edward now appeals from the Commission’s decision, raising three arguments. First, it contends that the treatment provided by Dr. Johnson was unauthorized on the basis that the Commission erred in failing to apply the change-of-physician rules set forth in Ark.Code Ann. § 11-9-514 (Repl.2012). Next, St. Edward argues that substantial evidence does not support the Commission’s finding that Ms. Chrisman was entitled to additional medical treatment by Dr. Johnson because the treatment was not reasonably necessary in connection with the compensable injury. Finally, St. Edward challenges the Commission’s award of temporary total disability benefits. We affirm the Commission’s decision.
We review decisions of the Workers’ Compensation Commission to determine whether there is substantial evidence to support them. Walgreen Co. v. Goode, 2012 Ark. App. 196, 395 S.W.3d 398. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Id. This court is foreclosed from determining the credibility and weight to be accorded a witness’s testimony. Baxter v. Union Standard Ins. Co., 2012 Ark. App. 251, 413 S.W.3d 561. The Commission is the ultimate arbiter of weight and credibility; it has the authority to accept or reject medical opinions, and its resolution of conflicting medical evidence has the force and effect of a jury verdict. Id. Our standard of review requires that we affirm if reasonable minds could reach the Commission’s decision, and we do not determine whether the evidence could | ¡¡support a contrary finding. St. Joseph’s Mercy Med. Ctr. v. Redmond, 2012 Ark. App. 7, 388 S.W.3d 45.
Ms. Chrisman testified that the compen-sable injury on December 29, 2009, occurred when she was helping a patient use the restroom. The patient passed out when she got up, and Ms. Chrisman twisted her back while holding the patient. According to Ms. Chrisman, she immediately felt pain in her neck and hip as well as numbness shooting into her fingers, and she reported the incident to her employer.
St. Edward sent Ms. Chrisman to Dr. Goodman, and she first visited him on January 4, 2010. Ms. Chrisman complained of pain in her neck and upper back, and Dr. Goodman’s assessment was back and neck strain. Dr. Goodman prescribed medication and physical therapy and returned Ms. Chrisman to light duty. St. Edward provided Ms. Chrisman light-duty work answering telephones.
Ms. Chrisman saw Dr. Goodman again on January 18, 2010, and on that day Dr. Goodman reported that she was no longer having low-back pain and that her low-back strain was resolving. However, Dr. Goodman reported that Ms. Chrisman’s upper extremity was worse and that there was no improvement with her neck strain.
The last time Ms. Chrisman visited Dr. Goodman was on February 4, 2010. On that date Dr. Goodman reported:
Since she signed a release of information following this injury, I was given a copy of an MRI performed in August 2006. That MRI shows problems at the C4-5 level and C5-6 level with posterolateral disc herniation of moderate size, associated spurring with this, and canal steno-sis. That is three and a half years ago. I have explained to Ms. Chrisman that with those findings on MRI, I think that her problem is more related to her neck and the problems she has in her neck tha[n] it is related to her binjury, and that her work injury is not related at all to her neck problem. I have discussed this with her and I feel she needs to see a neurosurgeon or Dr. Swicegood or Dr.
Miller for follow up of her cervical spine. In Ms. Chrisman’s testimony, she stated that she was not aware that the 2006 MRI showed a neck herniation, and that she was not under any regular treatment for her neck prior to the December 29, 2009, compensable accident.
Ms. Chrisman testified that her symptoms persisted and that she continued to work light duty until March 8, 2010, when she became weaker and her hands hurt too much to answer the phones. She went to River Valley Urgent Care on March 3, 2010, and they ordered an MRI of the cervical spine for a more current picture of the previous C5-6 disc protrusion. That MRI was performed on March 10, 2010, and Ms. Chrisman was referred by River Valley Urgent Care to Dr. Arthur Johnson. Ms. Chrisman testified that she visited River Valley Urgent Care and then Dr. Johnson on her own. She explained that she did not return to Dr. Goodman for her continued problems “because he is the workmen’s comp doctor and he turned me loose.”
Dr. Johnson saw Ms. Chrisman on March 25, 2010. He reported that the March 10, 2010, MRI showed a large disc herniation at C5-6 with right upper-extremity radiculopathy, causing nerve-root and thecal-sac compression. Dr. Johnson performed surgery at the C5-6 level on March 26, 2010. In a follow-up report dated May 20, 2010, Dr. Johnson reported improvement and said that Ms. Chrisman was doing reasonably well, and he released her to light-duty work lifting no greater than twenty pounds. On November 18, 2010, |fi Ms. Chrisman was released from Dr. Johnson’s care, and at that time Dr. Johnson assigned the same light-duty work restrictions.
Ms. Chrisman testified that after her surgery she attempted to return to work for St. Edward but that they had no work within her restrictions. She stated that she can no longer work as a certified nursing assistant because it requires lifting of more than fifty pounds. Ms. Chrisman indicated that she has not completely recovered and that the surgery did not cure her neck problems. She stated that she still has pain and numbness in her neck, arms, and shoulders. Even though Dr. Johnson returned her to work with light-lifting restrictions, Ms. Chrisman testified that she had not worked anywhere since March 3, 2010, and did not feel that she was physically capable.
In this appeal challenging the Commission’s award of additional workers’ compensation benefits, St. Edward first argues that the treatment rendered by Dr. Johnson was unauthorized and that the Commission erred in failing to apply the change-of-physician rules contained in Ark. Code Ann. § 11-9-514 (Repl.2012). Pursuant to Ark.Code Ann. § 11—9—514(a)(3)(A)(i), the employer has the right to select the initial treating physician, and in this case St. Edward selected Dr. Goodman. However, an employee may request a one-time change of physician. Ark.Code Ann. § 11—9—514(a)(2)(A), (a)(3)(A)(ii), (iii). When a claimant seeks a change of physician, he must petition the Commission for approval. Stephenson v. Tyson Foods, Inc., 70 Ark. App. 265, 19 S.W.3d 36 (2000). Treatment or services furnished or prescribed by any physician other than the ones selected according to the change-of-physician rules, except emergency treatment, shall be at the claimant’s expense. Ark.Code Ann. § 11—9—514(b). In the present case, St. Edward asserts that, because Ms. Chrisman made no effort to obtain approval for any change of physician before seeing Dr. Johnson, the treatment by Dr. Johnson was unauthorized and should have been denied by the Commission.
St. Edward acknowledges the following requirement mandated by Ark. Code Ann. section 11—9—514(c)(1):
After being notified of an injury, the employer or insurance carrier shall de liver to the employee, in person or by certified or registered mail, return receipt requested, a copy of a notice, approved or prescribed by the commission, which explains the employee’s rights and responsibilities concerning change of physician.
However, St. Edward asserts that it complied with this provision because form ARN, signed by Ms. Chrisman on the day following the compensable accident, was admitted into evidence. Arkansas Code Annotated section 11—9—514(c)(3) provides that any unauthorized medical expense incurred after the employee has received a copy of the notice shall not be the responsibility of the employer. St. Edward contends that because it provided sufficient notice to Ms. Chrisman and yet she failed to follow the statutory change-of-physician rules, the Commission erred in holding St. Edward responsible for the additional medical treatment, including the surgery performed by Dr. Johnson.
In order to preserve an issue for appellate review in a workers’ compensation case, it is a party’s responsibility to present the issue to the Commission and obtain a ruling. See Goodwin v. Phillips Petroleum Co., 72 Ark. App. 302, 37 S.W.3d 644 (2001). Because 17St. Edward failed to apprise the Commission of any argument pertaining to the change-of-physician rules or obtain any ruling on the argument, we hold that this issue has been waived and that the merits need not be addressed on appeal.
In its reply brief, St. Edward argues that this point was preserved below, noting that form AR-N was admitted into evidence without objection and that Ms. Chrisman’s counsel elicited testimony from her about whether she had sought additional treatment on her own. St. Edward submits that the only probative value of the AR-N form or Ms. Chrisman’s testimony in this regard went to the issue of whether the additional treatment was authorized. Moreover, St. Edward posits that its notice of appeal from the ALJ to the Commission identifies two issues with respect to the additional treatment in that it states:
The Administrative Law Judge erred in finding that Claimant is entitled to the additional medical treatment performed by Dr. Johnson including surgical intervention and after care and that that treatment was reasonable and necessary treatment for her compensable cervical spine injury.
(Emphasis added.)
Upon review of this record, we cannot agree that St. Edward sufficiently raised an issue pertaining to the change-of-physician rules. The prehearing order provided that, by agreement of the parties, the issues to be litigated were limited to additional medical treatment for the claimant’s cervical spine, temporary total disability benefits from March 4, 2010, through November 18, 2010, and attorney’s fees. The ALJ’s opinion summarizes St. Edward’s contentions as follows:
Respondents contend that all benefits to which claimant is owed have been paid; Respondents contend that claimant’s current problems are not related to the 18compensable injury at work and that claimant had preexisting neck and back problems at the time of her December 29, 2009, injury.
The ALJ’s decision to award additional medical benefits was based on its finding that the treatment by Dr. Johnson was reasonable and necessary for Ms. Chris-man’s compensable injury. Neither the ALJ nor the Commission made any ruling pertaining to the change-of-physician rules contained in Ark.Code Ann. § 11-9-514, and after the ALJ issued its opinion St. Edward failed to specifically complain about the omission of that issue from the ALJ’s decision. Although St. Edward admitted a copy of the signed AR-N form, it made no argument relating to the change-of-physician rules. Moreover, we have said that the burden of proving delivery of the change-of-physician form is on the employer, St. Edward Mercy Med. Ctr. v. Phipps, 2011 Ark. App. 497, 2011 WL 3925870 (emphasis added), and we have also held that merely signing the AR-N form is not necessarily sufficient proof that it was “furnished and delivered” to the claimant as required by statute. See Nettleton Sch. Dist. v. Adams, 2010 Ark. App. 3, 2010 WL 26393 (Commission credited claimant’s testimony that although she signed the form she was not provided a copy and thus was unable to examine the change-of-physician procedure printed on the back of the form, and we affirmed award of additional medical care). Pursuant to Ark.Code Ann. § 11-9-514(c)(2), if, after notice of injury, the employee is not furnished a copy of the notice, the change-of-physician rules do not apply. This issue was not presented to the ALJ or the Commission for decision, and there was no testimony as to whether the AR-N form was actually delivered to Ms. Chrisman. Because the issue was not specifically raised or ruled upon, we cannot reach the merits here.
| ;,St. Edward’s next argument on appeal is that substantial evidence does not support the Commission’s finding that Ms. Chrisman was entitled to the additional medical treatment by Dr. Johnson because that treatment was not reasonably necessary in connection with the compen-sable injury. Pursuant to Ark.Code Ann. § 11-9-508(a) (Repl.2012), employers are required to provide medical services that are reasonably necessary in connection with the injury received by an employee. Claimants have the burden of proving that treatment is reasonably necessary by a preponderance of the evidence, and what constitutes reasonably necessary treatment is a question of fact for the Commission. Cole v. Commerce & Indus. Ins. Co., 2009 Ark. App. 617, 2009 WL 3153322. Where treatment is for other conditions not causally related to the compensable injury, such treatment is not the responsibility of the employer. See id.
St. Edward argues that the medical treatment and surgery provided by Dr. Johnson were to treat Ms. Chrisman’s preexisting neck problems, which were not caused by the incident at work on December 29, 2009. St. Edward notes that an August 2006 MRI report identified a problem at the C5-6 level, and further asserts that when Dr. Goodman released Ms. Chrisman on February 4, 2010, he thought the neck problems she was experiencing were related to a prior condition rather than her work injury. St. Edward also relies on the opinion of Dr. Earl Peeples, who reviewed the medical records at appellant’s request. On June 8, 2011, Dr. Peeples reported that “[s]ince there was a large defect present four years earlier and since there were accompanying osteo-phytes indicative of degeneration, the abnormality of Ms. Chrisman is not, in my opinion, related to the work incident of January 2010 [sic], but to some earlier factors with natural degenerative progression since its identification in 2006 [10by MRI and 2006 upper extremity symptoms.” St. Edward asserts that because there was not substantial evidence that the herniation at C5-6 was the result of the incident at work, the Commission erred in finding Dr. Johnson’s treatment to be reasonably necessary in connection with the compensable injury.
We hold that substantial evidence supports the Commission’s determination that the treatment provided by Dr. -Johnson was causally related to and reasonably necessary for the treatment of Ms. Chris-man’s compensable injury. The August 2006 MRI showed a moderate herniation at C5-6, but the March 2010 MRI indicated a large herniation at that level. In an April 26, 2011, report, Dr. Johnson noted that he had reviewed the August 2006 MRI, that the disc herniation he observed during surgery was a large herniation, and he stated, “It is more probable than not that the job-related event during which Ms. Chrisman was trying to hold a patient who passed out was likely the major cause for her need for surgery that I performed on March 26, 2010.” Although Dr. Goodman initially related the herniation to a preexisting condition, he subsequently changed his opinion. On June 13, 2011, Dr. Goodman authored an exhaustive report on Ms. Chrisman’s condition and concluded:
My Comment to this would be that the MRI of 2006 showed a moderate disc bulge. The MRI done in 2010 showed a large herniation and she remained symptomatic at the C5-C6 level until after Dr. Johnson’s surgery, so she did have preexisting disease. I believe this was aggravated by her injury and this was documented by the change in the MRI findings and the fact that her symptomatology went away following decompressive laminectomy and cervical fusion.
While St. Edward contends that Dr. Goodman’s opinion addressing compensability was not stated within a reasonable degree of medical certainty as required by Ark. Code Ann. § 11-9-102(16)(B) (Repl.2012), we do not agree. Both Drs. Johnson and Goodman related the 1 n treatment and surgery by Dr. Johnson to Ms. Chrisman’s compensable cervical-spine injury, and the Commission specifically credited both of their opinions. Leaving the weighing of medical evidence to the Commission, as we must, we affirm its finding that the additional medical treatment was reasonably necessary in connection with the compen-sable injury.
St. Edward’s remaining argument is that substantial evidence does not support the Commission’s award of temporary total disability benefits from March 4, 2010, through November 18, 2010. St. Edward argues that because the treatment by Dr. Johnson was unauthorized due to noncompliance with the change-of-physician rules, and because the surgery was not causally related to the compensable injury, no corresponding disability benefits should have been awarded. Alternatively, St. Edward contends that any temporary total disability benefits should have lasted only from March 4, 2010, through May 20, 2010, when Dr. Johnson released Ms. Chrisman to work with restrictions. To receive temporary total disability benefits, a claimant must prove that she was within her healing period and that she was totally incapacitated from earning wages. Hickman v. Kellogg, Brown & Root, 372 Ark. 501, 277 S.W.3d 591 (2008). St. Edward submits that Ms. Chrisman was not totally incapable of earning wages after May 20, 2010, and that her testimony to the contrary was not substantial.
We hold that substantial evidence supports the Commission’s award of temporary total disability benefits from March 4, 2010, through November 18, 2010. Because we have affirmed the Commission’s award of additional medical treatment, we similarly affirm the temporary total disability benefits associated with that treatment. We recognize that on May 11g20, 2010, Dr. Johnson released Ms. Chrisman to work with the restriction of lifting no more than twenty pounds. However, the Commission specifically found credible Ms. Chrisman’s testimony that she was physically unable to work from March 4, 2010, to November 18, 2010, and we are bound by its credibility determination.
Affirmed.
VAUGHT, C.J., and ABRAMSON, J., agree.
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JIM GUNTER, Justice.
I,Appellants appeal the order of the circuit court dismissing their claims and quieting title to mineral interests, including oil and gas rights, in appellee Upland Industrial Development Company, Inc. On appeal, appellants argue that the circuit court erred in (1) interpreting the Stro-hacker doctrine and applying the doctrine to the facts of this case; (2) placing the burden of proof on appellants; (3) not giving appellants a jury trial; (4) finding that appellants’ claims are barred by es-toppel and laches; and (5) granting appel-lee SEECO, Inc.’s motion for attorneys’ fees. We have assumed jurisdiction of this case, as it involves a significant issue needing clarification or development of the law or overruling of precedent; therefore, we have jurisdiction pursuant to Ark. Sup.Ct. R. 1—2(b)(5). We affirm.
By warranty deed dated February 16, 1908, St. Louis, Iron Mountain and Southern Railway Company conveyed certain property in White County to Western Tie & Timber 12Company. The deed contained the following reservation: “Also reserving all coal and mineral deposits in and upon said lands.” Upland Industrial Development Company (Upland) is the successor in interest to St. Louis, Iron Mountain and Southern Railway Company, and appellants are the successors in interest to Western Tie & Timber Company. In 2010, a dispute arose over the ownership of the oil and gas rights in the subject property, and appellants Kenneth and Cynthia Nicholson filed suit to quiet title. The complaint named T.S. Dudley Land Company, Inc., Upland, and SEECO, Inc., as defendants. In brief, the Nicholsons argued that the above reservation did not reserve rights to oil and natural gas on the property, while Upland argued that the reservation did reserve rights to oil and gas.
Appellee SEECO, which had acquired oil and gas leases from both the Nichol-sons and Upland, filed a petition for inter-pleader and third-party complaint, in which it acknowledged its obligation to pay royalties to the rightful owners of the oil and gas rights and asked the court to determine the ownership of the oil, gas, and minerals underlying the subject property. SEECO was allowed to file a third-party complaint and deposit royalty sums into the registry of the court; a total of $479,216.72 was eventually deposited with the court. SEECO also named a number of third-party defendants (who are also now appellants) who had not been named in the original complaint but who may have an interest in the minerals at issue.
After a bench trial, the court entered an order on July 19, 2011, which dismissed |sappellants’ claims to quiet and confirm title in and to the mineral interests underlying the property. The court held that title to the mineral interests, including but not limited to oil and gas rights, was quieted and confirmed in Upland. The court also entered twenty-four pages of findings of fact and conclusions of law to support its decision. Appellants filed a timely notice of appeal from this order on August 12, 2011. More specific facts that are pertinent to the points on appeal will be discussed below.
For their first and second points on appeal, appellants assert that the circuit court both misunderstood and misapplied the Strohacker doctrine. In Strohacker, this court examined reservations in deeds conveyed in 1892 and 1893 and held that the reservations were sufficient to reserve oil and gas rights only “[i]f the reservations had been made at a time when oh and gas production, or explorations, were general, and legal or commercial usage had assumed them to be within the term ‘minerals.’ ” Missouri Pac. R.R. Co. v. Strohacker, 202 Ark. 645, 650-51, 152 S.W.2d 557, 561 (1941). In that case, this court held that a reservation of “all coal and mineral deposits” did not reserve rights to oil and gas because, at that time, it was not the “general construction” to deem oil and gas as minerals. Id. at 656, 152 S.W.2d at 568. In Stegall v. Bugh, 228 Ark. 632, 310 S.W.2d 251 (1958), this court reiterated that
the meaning which this court has heretofore and should hereafter give to the word “mineral,” in connection with its use in situations similar to those of this case, is governed not by what the grant- or meant or might have meant, but by the general legal or commercial usage of the word at the time and place of its usage.
Id. at 634, 310 S.W.2d at 253. And in Ahne v. Reinhart and Donovan Co., 240 Ark. 691, 401 S.W.2d 565 (1966), this court clarified that
l,for the past twenty-five years it has been the settled rule of this court that, where there is ambiguity as to minerals actually embraced in instruments purporting to convey or to reserve certain unspecified minerals under generalized terms as to minerals, a fact question is presented as to the true intent of the parties; and in such cases the contemporary facts and circumstances surrounding the execution of the instrument are admissible in evidence on the question. Furthermore, the intent of the parties will be determined so as to be consistent with and limited to those minerals commonly known and recognized by legal or commercial usage in the area where the instrument was executed.
Id. at 696, 401 S.W.2d at 568-69.
In the present case, appellants first argue that the circuit court misinterpreted the Strohacker doctrine, specifically citing two paragraphs from the court’s order. After quoting the general rule from Stro-hacker, namely that a reservation of mineral rights will include oil and gas if the reservation is made at a time when oil and gas production, or explorations, are general, and when legal or commercial usage assume them to be within the term “minerals,” the court stated that
[t]he Strohacker court did not say that if there were no proof that production or explorations were general and legal or commercial usage assumed oil and gas to be within the term “minerals,” that the appellant could not prevail under any circumstances.... Moreover, in Strohacker, the court did not say that the exploration or production, or the legal or commercial usage of oil and gas assumed them to be included in “minerals,” would have to be limited to the county in which the property is located. The Court finds that to be a misconception, which is apparently commonly held.
Thus, appellants argue, according to the circuit court, even if there was no general exploration for or production of oil or gas in White County, nor any commercial or legal usage of the terms in White County, at the time the deed was conveyed, the appellees can still prevail. Appellants argue this is error because the circuit court “eliminated the first prong of the 1 Strohacker doctrine” by not requiring Upland to prove production or exploration of oil and gas at the time of the deed and “modified the second prong of the Strohacker doctrine by not limiting Upland’s proof of legal or commercial usage of the term ‘mineral deposits’ in White County in February of 1903.” Instead, appellants assert, the court erroneously concluded that “the ‘area where the instrument is executed’ in this case includes White County and surrounding counties, including Pulaski County, the place where the instru ment was, in fact, executed by the grantor, according to the acknowledgment.”
Appellants also argue that the circuit court misapplied the Strohacker doctrine to the facts of this case by finding that oil and gas rights were reserved by the reservation in the 1903 deed. Appellants claim that there was no evidence presented to show that there was exploration for oil and gas before February 1903 in White County, nor was there any proof that the legal or commercial usage of the term “mineral deposits” included oil and gas in White County in February 1903. Appellants also take issue with numerous exhibits offered by Upland and admitted by the court, including newspaper articles, advertisements, books, and census information, and argue that virtually all of this evidence was irrelevant, as it concerned surrounding areas and not specifically White County. With regard to those exhibits that were specific to White County, appellants argue that the exhibits failed to demonstrate the production of or exploration for oil and gas, or the legal or commercial usage of the term “mineral deposits,” in White County in February 1903.
In response, Upland argues that there was “abundant evidence” presented in this case |6showing that oil and gas were, in fact, commonly recognized minerals in White County and the surrounding area at the time the warranty deed was conveyed. Upland contends that the newspaper articles and other evidence before the court established that “exploration for gas and oil was robust in the area of White, Pulaski, Conway, Pope, and Independence Counties prior to 1903,” and that all these counties should be considered a part of the area where the property is located. Upland cites Ahne, supra, to support the court’s consideration of evidence of exploration for oil and gas in the general area and not just White County. Upland also asserts that the newspaper articles and other exhibits all addressed the primary issue in this case and were properly admitted by the court.
We hold that the circuit court did not misinterpret or misapply the Strohacker doctrine. First, the court’s order correctly quotes the holding of Strohacker, and the court’s analysis fits within the fact-finding framework dictated by Strohacker and its progeny. Second, with regard to the circuit court’s factual findings, the appropriate standard of review on appeal from a bench trial is not whether there is substantial evidence to support the findings of the circuit court, but whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. City of Rockport v. City of Malvern, 2010 Ark. 449, 374 S.W.3d 660. 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 an error has been committed. Id. Evidentiary rulings are a matter of discretion and are reviewed only for abuse of that discretion. See Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001).
[/With this standard in mind, we hold that the circuit court’s finding was not clearly against the preponderance of the evidence. Appellants’ primary contention is that the evidence should have been limited to White County only; however, we disagree and find no error in the court’s assessment, based on the evidence presented, that by March 6, 1903, the date of the execution of the warranty deed, oil and gas were commonly known and recognized in White County and in the general area of White County. We also find no error in the court’s conclusion that the legal use in White County and the surrounding area assumed oil and gas to be included in the term “minerals.” Finally, we find no abuse of discretion in the court’s admit tance of those exhibits it found to be relevant to the ultimate issue in this case.
For their next point on appeal, appellants assert that the circuit court erred in placing the burden of proof on them at trial. Prior to trial, appellants filed a motion in limine asking the court to find that, as the proponent of the alleged reservation of minerals, Upland had the burden of proving that oil and gas were within the scope of the reservation at issue. In response, Upland argued that this was an action to quiet title and asserted that the party seeking to quiet title has the burden of proof. Thus, Upland contended, it was appellants who had the burden of proving title to the mineral rights in the instant case. At the pretrial hearing, the parties advanced the same arguments, with Upland noting that because the trial was going to be a bench trial instead of a jury trial, there would be no instruction on burden of proof. The court concluded that the burden of proof would be on appellants.
On appeal, appellants again argue that the burden of proof should have been on | ^Upland. In response, Upland again asserts that, generally, the party seeking to quiet title has the burden of proof, citing, inter alia, Bobo v. Jones, 364 Ark. 564, 567, 222 S.W.3d 197, 200 (2006) (“In a quiet-title action, the moving party’s burden is to establish the true ownership of the land in question.”). Upland also argues that this is not really a meritorious issue on appeal, as the practical effect of the court’s ruling was simply that the appellants proceeded first. Upland argues that the court made its findings after a full trial on the merits and that appellants have not demonstrated how the court’s findings would have been different had the initial burden of proof been placed on Upland.
We agree with Upland that both parties in this case had ample opportunity to present evidence on the issue to be decided by the court and, especially because this was a bench trial, appellants have not demonstrated how they were prejudiced by the ruling. Thus, we find no reversible error on this point.
Next, appellants contend that the circuit court erred in not giving them a jury trial. Entitlement to a jury trial is a legal issue centered on constitutional interpretation and is reviewed de novo on appeal. See First Nat’l Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005). The constitutional right to a jury trial is limited to those cases which were so friable at common law. Baptist Health v. Murphy, 2010 Ark. 358, 373 S.W.3d 269. This court has clearly stated that article 2, section 7 of the Arkansas Constitution does not assure the right to a jury trial in all possible instances, but rather in those cases where the right to a jury trial existed “when our constitution was framed.” Cruthis, 360 Ark. at 534, 203 S.W.3d at 92 (quoting Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979)).
This case was originally scheduled for a jury trial; however, on April 12, 2011, Upland filed a motion for an amended scheduling order and requested a bench trial. Appellants responded, arguing that the case was “as much an ejectment case as a quiet title case” and asking that the motion to amend the scheduling order be denied. At the pretrial hearing, Upland argued that because the case centered on a legal issue of an equitable nature, it should be decided by the court in a bench trial. Appellants again argued that the case could be classified as an ejectment case, but the court disagreed. The court found that there was no right to a jury trial in the case and that the case would be heard by the court.
On appeal, appellants again assert that this case was, in essence, an ejectment action, and as such, the appellants had a constitutional right to trial by jury. In response, Upland contends that this was a quiet-title action, which is cognizable in equity, thus it was properly decided by the court sitting as the trier of fact.
This court has explained that ejectment is an action for possession filed in circuit court by one who has title to the property, while a quiet-title action is filed in chancery court by one who is in possession and wants title to the property declared to be in him. Pearman v. Pearman, 144 Ark. 528, 222 S.W. 1064 (1920).
The equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession, unless his title be merely an equitable one. The reason is that where the title is a purely legal one and some one else is in possession, the remedy at law is plain, adequate, and complete, and an action of ejectment cannot be maintained under the guise of a bill in chancery. In such case the adverse party has a constitutional right to a trial by a jury.
Id. at 531, 222 S.W. at 1065. While appellants continue to assert that their complaint was essentially an ejectment action, we find no error in the court’s finding that this was an action to quiet title and, thus, no constitutional right to a jury trial was present.
Appellants also assert on appeal that the circuit court erred in finding that their claims were barred by estoppel and laches. In its order, after finding that by the date of the execution of the warranty deed, oil and gas were commonly known and recognized minerals in both White County and the general area of White County, the court concluded that appellants were also barred from recovery pursuant to the doctrines of estoppel and laches. The court found:
The reservation in the deed in the chain of title was recorded in 1903. Two subsequent deeds in the chain of title specifically referred to the previous reservations of minerals. When the Nicholson Plaintiffs acquired Section 21 in 1994, they were experienced in the abstract business, and therefore, were knowledgeable with respect to real property titles. Nonetheless, there is no evidence of any effort on their part to determine whether minerals were included in their acquisition of the property. Indeed, Mrs. Nicholson testified that minerals were excluded by the title insurance company that issued the title policy insuring title in the transaction. The doctrine of laches is a strong defense in cases involving oil, gas, and other mineral interests.
On appeal, appellants argue that there was no proof that Upland detrimentally relied on the landowners’ inaction, which is a necessary element of both estoppel and laches; thus, the court’s finding on this issue was clearly erroneous. Upland, on the other hand, argues that there was no effort to contest the ownership of mineral rights until approximately 107 years after the 1903 warranty deed was conveyed, despite the fact that there were at least two reservations of mineral interests referred to in deeds in the chain of title of the property at |nissue in this case. Therefore, Upland contends, the court did not err in finding that appellants’ claim was barred by estoppel and laches. We decline to address the merits of this argument, however, because the circuit court’s finding on estoppel and laches is merely an alternative basis for its ruling in Upland’s favor. Because we have already affirmed the court’s finding on the reservation in the deed, we need not address this alternative basis for its ruling.
For their final point on appeal, appellants argue that the circuit court erred in granting SEECO’s motion for attorneys’ fees. On September 20, 2010, SEECO filed a motion requesting payment of attorneys’ fees from the funds it had deposited into the court’s registry. This motion was made pursuant to Ark. R. Civ. P. 22(b), which provides:
A plaintiff who disclaims any interest in the money or property that is the subject of the interpleader action shall, upon depositing the money or property in the registry of the court, be discharged from all liability. The court may make an award of reasonable litigation expenses, including attorneys’ fees, to such a plaintiff.
SEECO requested an award of $5,190.08, which represented the attorneys’ fees and costs it had incurred as a result of inter-pleading the suspended royalties. After the bench trial was held, the court entered an order granting SEECO’s motion for attorneys’ fees in the amount requested.
On appeal, appellants argue that SEE-CO was not a disinterested party, but instead continued to observe the case and attempted to aid Upland’s attorneys during the trial. Because SEECO was not disinterested, appellants contend, the court abused its discretion in awarding attorneys’ fees. In response, SEECO first observes that Upland, who prevailed at trial, did not object to or appeal from the award of attorneys’ fees. SEECO also argues that, | ^contrary to appellants’ assertions, it was and is disinterested in the property at issue. Finally, SEECO disagrees that its minimal participation at trial was an attempt to aid Upland’s attorneys; instead, SEECO merely recognized a witness’s error and brought the error to the court’s attention, to the benefit of both parties and the court. Thus, SEECO argues, the court did not abuse its discretion in awarding attorneys’ fees.
A threshold issue for this court to address is whether appellants have standing to appeal the award of attorneys’ fees. In Springdale School Dist. No. 50 v. The Evans Law Firm, P.A., 360 Ark. 279, 288, 200 S.W.3d 917, 920 (2005), this court explained:
This court has held that a person must have suffered an injury or belong to a class that is prejudiced in order to have standing to challenge the validity of a law. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997); Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994). Stated differently, plaintiffs must show that the questioned act has a prejudicial impact on them. Chapman v. Bevilacqua, 344 Ark. 262, 42 S.W.3d 378 (2001). Moreover, our courts have recognized the concept of “standing to appeal.” See Arkansas State Hwy. Comm’n v. Perrin, 240 Ark. 302, 399 S.W.2d 287 (1966); see also First Nat’l Bank v. Yancey, 36 Ark. App. 224, 826 S.W.2d 287 (1991). Only a party aggrieved by the court’s order can appeal that order. Beard v. Beard, 207 Ark. 863, 183 S.W.2d 44 (1944).
In the present case, the attorneys’ fees were paid out of the interpleaded funds, which belong to Upland, according to the court’s order. Thus, appellants have not been aggrieved by the court’s order, and we hold that they have no standing to raise this argument on appeal.
Affirmed.
BAKER, J., not participating.
. T.S. Dudley Land Company, Inc., was later dismissed from the case. | [
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Eakin, J.
Gillespie & Bros, brought replevin against 'Carroll, a constable, to recover certain personal property which he had taken in execution in favor of Conrad & Co., against W. N. Portis and James M. Portis, his security, on ¡.a stay bond executed before a justice of the peace. This suit was begun before a justice of the peace and appealed to the circuit court, where the case was submitted to the j,udge on the following facts :
On the tenth of August, 1878, Conrad & Co. recovered a judgment against W. N. Portis before a justice of the peace for Yaugine Township, Jefferson county. Defendant entered into a bond with James M. Portis as surety, by which execution was stayed until the first day of January, 1879. On the second day of May, 1879, the Portises filed for record a mortgage to Gillespie & Bros, of the personal property now in suit, which was owned by W. N. Portis at the time the judgment in favor of Conrad & Co. was rendered, and also when the stay bond was executed, and which had been kept by him on his farm up to the time of the beginning of this suit by Gillespie & Bros. This farm is in Dudley Lake Township in the same county.
On the twentieth of October 1879, execution issued on the stay bond in favor of Conrad & Co. against W. N. and J. M. Portis, which was placed in Carroll’s hands, and by him levied on the property. There had been a former execution on the stay bond on the twenty-sixth of May, 1879, which had been returned nulla bona. The property was then replevied in this suit by the appellees Gillespie &
Bros. It did not appear that the property had ever been in Yaugine Township from the date of the judgment against Portis to the execution of the Gillespie mortgage.
The court declared the law to be that liens of the stay bond and judgment did not attach to property outside of the township where it was executed, and gave judgment for Gillespie & Bros. This is the single point now made on appeal.
This court held in Isbell v. Epps, 28 Ark,, 35, that an execution from a justice of the peace was a lien from the time of its. deliyery to the constable upon the goods of the defendant within the limits of the township to which it was directed. In this case no execution had ever been issued upon the stay bond nor original judgment, when the mortgage was executed. The direct question is was a stay bond executed in August, 1878, and forfeited on the first day of January, 1879, a lien upon the second of May, 1879, upon property of the defendant outside the township in which the stay bond was made, but in the same county?
After the decision in Isbell v. Epps, a general act, regulating the practice before justices of the peace, was passed .on the twentieth of April, 1873. It is declared to be “ the sole and only law governing the mode of proceedings in justices’ courts in civil actions. ” See. 125. It provides that executions issued by a justice of the peace shall be directed to any constable of the county, but he can only levy it upon goods and chattels out of the township where the judgment was rendered under certain conditions. That is when the defendant resides out of the township, the execution may be levied on goods and ^chattels in the township where he resides, or if he has no goods and chattels in the township of the judgment, it may be levied in any township in which goods may be found. Gantt's Dig., secs, 3,791 et seq.
After providing for stay bonds, the act reads as follows {Sec. 3,782 of Gantt's Digest): “In all cases where executions shall be stayed on any judgment rendered by a justice of the peace, such judgment shall be a lien upon all the personal property subject to execution belonging to the defendant at the time of the rendition of the judgment.”
The property in question was certainly subject to execution on tbe Conrad judgment if it had not been stayed, and, literally construed, the statute made the stay bond a lien. The court, however, has found grave embarrassment in following the letter of the statute to all its logical conclusions, and have felt the necessity of seeking the intention of the legislature in the general scope and purpose of the act, in 'connection with the former law concerning executions as ¡settled by the court in the case of Isbell v. Epps. It was not probably the intention of the legislature, in using the ¡terms “all the personal property subject to execution,” to make the stay bond a more extensive or far-reaching lien ¡than the execution would have been in the sheriffs hands, ¡if never stayed. It was the policy of the new act to make •only the property in the township of the judgment subject ¡to execution, in the first instance, in ordinary cases. The ■cases where a constable might levy in another township of the county were exceptional.
In one sense not only all the property in the county, but in the State, was subject to execution. It might be reached by filing a transcript in the circuit court, and this, too, ¡would be within the letter of the statute.
It would be very dangerous to deal in personal property, if it might be subject to such obscure liens as justices’ Judgments in distant parts of the county. No one could, in ordinary cases, examine all the dockets of the different Justices of a county before purchasing a horse or a cow. Any one might, with no great inconvenience, make enquiries of the justices of a township in which the property may be situated. We cannot suppose the legislature intended ¡the expression in a sense which would lead to absurd results, ■and therefore conclude it meant alb personal property subject to execution in the township in which the judgment was ■rendered and stay bond executed. Affirm. | [
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Smith, J.
By indenture duly executed and acknowledged by both parties and recorded, Neel in the year 1879, conveyed to one Bertrand a plantation in Jefferson county. The consideration was $5,610, divided into six equal annual installments. The deed reserved a lien on the land and on ten bales of merchantable cotton, to weigh five huudred pounds each, out of the crop to be raised each year on the-place. Bertrand covenants to deliver this quantity to a designated trustee, to be sold in market and the proceeds to be-applied upon his debt. If he fails to meet the installment, in any year when it falls due, and likewise fails to turn out the cotton, the trustee is empowered to take charge of the ten bales of cotton produced on the premises and after-advertisement sell the same by public auction.
In _ 1881 the plantation was let to farm in. parcels to various tenants. Two of these tenants mortgaged their crops to Dodds, a merchant, for supplies. Some eighteen or twenty bales were made upon the whole place. The installment of purchase money for that year remaining unpaid, Neel, without the knowledge or consent of any person interested, hauled away in his wagon twelve bales of cotton, aggregating five thousand, six hundred and twenty-six pounds. In this lot were included three bales of the- crop raised by the tenants, upon which Dodds held a mortgage. Dodds brought replevin for the three bales, and Neel justified their seizure under the reservation of lien in his deed to Bertrand.
On the trial, which took place before the circuit court, a jury being waived, the plaintiff objected to the introduction of this deed, because it described no particular cotton. But his objection was over-ruled. The .court found that Neel held a prior lien .on the cotton, which could be asserted iu an action at law, and gave judgment accordingly.
If this were a contest between Neel and Bertrand, we should be inclined to uphold the description as effectual.
Thus, in Gurley v. Davis, 39 Ark., 394, this court went to a great length in sustaining a vague and indefinite description of mortgaged chattels, no one except the immediate parties to the instrument being concerned. But when creditors of the mortgagor, or others dealing with the property, have acquired adverse rights, a mortgage of a specified number of articles out of a larger number, will not be allowed to-prevail unless it furnishes the data for separating the property intended to be mortgaged from the mass. Jones Chattel Mortg., Secs. 56, 59, and cases there cited ; Richardson v. Alpine Lumber Co., 40 Mich., 203.
The case of Williamson v. Steele, 3 Lea., ( Tenn.,) 527, is in point. That was replevin for two bales of cotton. The plaintiff claimed under a mortgage, which purported to convey so much of a growing crop as would be sufficient to' make two bales of lint cotton, each not weighing less than five hundred pounds. The defendant had caused an execution, against the mortgagors, to be levied on the cotton in controversy while it was still unginned, and before it had been delivered to the mortgagee. It was the intention of the mortgagors to have the seed cotton»which was levied on, ginned, made into two bales and delivered to the mortgagee ; but this intention had not been communicated to. either of the parties to the action. The mortgagors had raised in all seven bales, but had already sold five in market without the plaintiff’s knowledge. And it was held the execution creditor had the better right. Cooper J., in delivering the opinion of the court, said: “When only a certain quantity of articles of the same character, such as cattle, grain in bulk, or a particular crop, is undertaken to be conveyed, no title can pass until the quantity is selected and set apart; until selection made, the whole property would be subject to execution by the grantor’s creditor. For what is sold is not separated from that which is not sold, and the grantee has no title in any particular property for which he could bring an action. The grantee, under the deed before us, has no right to select any particular part of the cotton raised to the extent of the quantity necessary to make two bales, and assert title thereto, against the grantor’s creditors acquiring liens on the crop. If he could do so, as to the seed cotton levied on by the defendant, he could equally select his two bales from the five previously sold. His right would be ambulatory, to suit his convenience or his caprice. * * *
It is the fact that no title passed or could possibly pass, to any of the cotton until designated by the selection of the grantor’s, that gives the creditor the better right.”
Doubtless the vendee may mortgage back not only the lands he has purchased, but the annual crops to be produced thereon during a series of years. But in order to affect creditors or subsequent purchasers or others who have acquired rights in these crops, with notice of the lien, the subject-matter of the mortgage must be described with sufficient certainty to distinguish the property intended to be conveyed and to identify it. If the reservation here had been of a lien upon all, or any aliquot portion of the crops of cotton, or even the first ten bales gathered on the place, a different question would have been presented. See Robinson v. Mauldin, 11 Ala., 977; Stearns v. Gafford, 56 Id., 544.
The case of Washington v. Love, 34 Ark., 93, was affirmed upon the whole record, because it seemed that substantial justice had been done. In that case there was also a sort of separation of the three bales of cotton, or what the court deemed such. Here there was none.
The authority vested in the trustee by the deed was the usual authority to take charge of and sell the cotton upon •default in payment. It was probably never intended to confer upon him any power of selection with a view to identify the mortgaged property. But if the language used admits of this' construction, then the trustee and not the beneficiary was the proper person to exercise the power. In «seizing the cotton, Neel was a trespasser.
Reversed and a new trial ordered. | [
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English, C. J.
George Bryant was indicted in the circuit court of Dorsey county for an aggravated assault, (under section 1298 of Gantt’s Digest.
The indictment alleged that said Bryant, in the county of Dorsey, on the eighteenth day of June, 1882, did unlawfully make an assault with a deadly weapon, to-wit: One large pocket knife, in and upon one J. R. Price, with the intent to inflict upon the person of him, the said J. R. Price, a great bodily injury, without considerable provocation, and when all the circumstances showed that he, the said George Bryant, had a wicked and abandoned disposition, etc.
The defendant was tried on plea of not guilty, the jury found him guilty, and imposed a fine of fifty dollars upon, him, which is the lowest fine prescribed by the statute under which he was indicted for the offence charged in the indictment. He was refused a new trial, took á bill of exceptions, and appealed.
I. We cannot suppose his honor, the trial judge, signed this bill of exceptions as it is made up in the transcript in this case. It is elementary law, that the office of a bill of exceptions is to bring into the record matters which otherwise would not be part of it. The clerk has copied into the. bill of exceptions, as it appears in the transcript, the record entries of the trial, verdict, judgment, prayer for and grant of appeal, and other entries which are part of the record* and should not be transcribed into the bill of exceptions., The evidence introduced upon the trial, the instructions-given or refused by the court, exceptions taken to the rulings of the court upon them, the motion for a new trial, and the exceptions to the decision in overruling it, were properly put into the bill of exceptions, and thereby made part of the record.
II. One of the grounds of the motion for a new trial was that the verdict was contrary to law and evidence.
The bill of exceptions, which purports to set out all the evidence introduced on the trial, fails to show that it was proved that the offence was committed in Dorsey county as-alleged in the indictment.
It may be stated briefly that it was proved that in June,, 1882, a company of men were on the Moro Creek bathing* and among them appellant, Bryant, and Price, the person alleged to have been assaulted. Bryant and Price quarreled and fought, Bryant using a knife, and Price a stick, as to the size of which the witnesses differed widely, as they-did as to other particulars of the quarrel and fight. During-the fight, Bryant struck at Price several times with the-knife and finally cut and disabled him. As to whether appellant, upon the whole of the evidence, should have been-convicted of aggravated assault, as charged, or a common assault, or acquitted as having used the knife in necessary-self-defense, we will express no opinion, as the case will have to be remanded for a new trial.
III. The attorney for the state moved eight instructions,, to none of which appellant appears to have objected, but the court, of its own motion, refused the first, second, seventh and eighth, to the refusal of which appellant excepted, and. made their refusal ground of-the motion for a new trial.
The state is not appealing, and hence not complaining of the refusal of these instructions, and it is not the usual practice for the defendant to make the refusal of instructions asked by the state ground of his motion for a- new trial. He may offer the same, or similar instructions himself, and except to the decision of the court refusing them.
We have no objections, however, to noticing the series of instructions moved by the state.
The 1st defined a simple assault in the language of the statute, and stated the punishment fixed by the statute. Gantt's Digest, secs. 1294-1296.
The 2d defined, in the language of the statute, an assault, and battery, and its punishment, lb., secs. 1295 — 1297.
The 3d defined an assault with a deadly weapon, with intent to inflict upon the person of another a bodily injury, substantially in the lauguage of the statute Under which the indictment was drafted ; and the 5th stated the punishment prescribed by the statute for that offence, lb., 1298.
The 4th was, in substance, that the jury were the sole judges of the evidence, and the weight to be given to the testimony of the witnesses, and of their credibility, etc.
The 6th related to the law of self-defense, and the use of the knife by defendant.
The 7th indicated the form of the verdict if the jury found the defendant guilty of a simple assault, and the 8th the form of the verdict if they found him guilty of an assault and battery.
The series of instructions fairly presents the law applicable to the various phases of the conflicting evidence, except in this : Appellant could not properly have been convicted of an assault and battery under the indictment, because it alleges no battery. See Sweeden v. State, 19 Ark., 205.
IY. The court, of its own motion, and against the objection of appellant, instructed the jury, “that the defendant could not be convicted under the testimony of a lower grade of offence than the one charged in the indictment;” and the giving of this instruction was made ground of the motion for a new trial.
Under an indictment for an assault with a deadly weapon with intent to inflict upon the person of another a bodily jnjury; etc., the accused may be convicted of a simple assault, Cameron v. State, 13 Ark., 712; Sweeden v. State, 19 lb., 212. The higher offence charged in the indictment includes the lower.
Whether, upon the conflicting evidence, appellant was guilty of the higher or lower grade of assault, was a question of fact for the jury, and not of law for the court.
Y. Appellant asked five inaccurately formulated instructions, relating to the law of self-defense, essential evidence on the part of the state, doubts, etc., all of which the court refused except the third. We deem it of no importance to set out and comment upon the instructions refused, as they involve no novel question.
The judgment must be reversed, and the cause remanded ■for a new trial. | [
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Smith, J.
This was an action against a constable for the sale and conversion of certain chattels alleged to be the property of the plaintiffs, who were respectively the trustee and the administrator of the beneficiary in a deed of trust. The answer denied the plaintiffs’ property and justified under legal process. There was a trial before the court, sitting as a jury, which found that the law and the facts were in favor of the defendant and judgment was entered accordingly.
It appears from the evidence that on the fourth •day of January, 1879, William M. Blakeley sold to Clark and Martin two mules, a wagon and a stock •of hogs and cattle upon a credit, taking their promissory note, payable November 1st, 1879, and secured by a deed of trust, duly acknowledged and recorded, upon the property purchased, as also upon their crops to be raised during that year. In May, 1879, one Gibson brought an action on a contract against Blakeley for $205. 75, before a justice of the peace and sued out an attachment, which came to the hands of the defendant to be executed and was by him levied on the mules, wagon, hogs, and cattle above mentioned-The affidavit for attachment alleged the non-residence of Blakeley as the ground for praying the writ, and it and the bond conformed substantially to the statute. A warning order was published for Blakeley, and Kelso, the trustee in the deed of trust, was appointed his attorney ad litem. Afterwards, Blakeley’s death was suggested and upon motion of Gibson’s attorney, Kelso was appointed his administrator ad litem. There is no proof in the record that Kelso was present in the court of the justice of the peace when these proceedings were had, nor that he accepted either of said appointments,. He says himself, that when approached on the subject by Gibson’s attorney befoie the appointment was made, he distinctly declined to act, and that he had never recived any notification of the fact that he had been so appointed, except that the justice had mentioned it to him in conversation.
In October, 1879, judgment was rendered by the justice ■against Blakeley for the debt, and the property that had been attached by the constable was condemed to be sold for its satisfaction ; the bond for restitution of the property, or its value, in case the defendant should, within five years, •appear in court and have judgment set aside, having been (first filed. (See Gantt’s Dig., sec. 4727, clause 2).
On the same day the following order of sale was issued:
State of Arkansas, County of Columbia.
John K. Gibson, vs. W. M. Blakeley.
To J. B. Wise, Constable Buena Vista Township :
Whereas, J. XL Gibson has sustained his attachment in my court against W. M. Blakeley, you are commanded to «ell the property attached, (describing it j.
[Signed]
L. W. Payne, J. P.
The property was sold under this order and produced ($111, which was paid oyer to Gibson’s attorney.
This court, in Trapnall’s Admix, v. State Bank, Ark., 63, decided that the estate of the mortgagee land, before foreclosure or entry, is not the subject of -eeution, even after default and when the condition of the mortgage has been broken. The same rule applies with -equal force to mortgages or deeds of trust upon personal property. Being mere pledges for the security of a debt, they are discharged when the debt is paid; title is revested, without further formality, in the mortgagor or grantor, and any title acquired by the levy of a creditor of the mortgagee is defeated. And not being subject to execution, it follows that the mortgagee’s right is not subject to attachment, which is but a preliminary execution. Grubbs v. Ellyson, 23 Ark., 287.
The first of the pleas above mentioned was probably in-1 ^ tended to raise the question whether the trustee and the beneficiary of a trust have such an interest in the trust prop erty as to maintain trover for its conversion. That question must be considered to be foreclosed in this court by the case of Robinson v. Kruse, 29 Ark., 575; see also Prout v. Root, 116 Mass., 410—a case similar to this in its essential features.
But it is upon the plea of justification as a ministerial of^cer a°ting hi the execution of legal process, that the defendant mainly relies to sustain the judgment below.
Since the case of Savacoal v. Boughton, 5 Wendell, 170, it may be taken as settled that the law throws its protecting' shield around officers executing the mandates of its courts,, so long as they do only what they are commanded to do, without requiring them to determine whether it is rightly and properly commanded or not.
Hence an officer acting under process fair upon its .face- and issuing from a tribunal or person having judicial powers, with apparent jurisdiction to issue such process, is justified in obeying it, against all irregularities and illegalities, except his own. In the notes to that case, 21 Am. Dec., 190, and Big. Lea. Cas. on Torts, 277, may be found a satisfactory exposition of this doctrine with its-qualifications and limitations.
Now, however regular the process may be, it will not justify a seizure of the property of the wrong person, or the wrong property of the right person. Take the familiar case where, on process against A., the officer levies on the-goods of B,, or seizes and sells property of the debtor which is by law exempt from execution. In all cases where-the writ commands the officer to make certain sums of money, out of the property of a person named, without specifying the property to be seized, the officer has to determine, at his own peril, in the first place, whether the property which he proposes to seize is the property of the defendant in the writ; and secondly, whether it is legally liable to be so taken. And against the consequences- of an. erroneous exercise of his judgment in the determination of these questions, the courts can afford himno protection. He is liable to actions for injuries growing out of such mistakes, irrespective of the innocence of his intent, Freeman on Executions, § 272; See Atkinson v. Gatcher, 23 Ark., 101; Buck v. Colbath, 3 Wall., 335; Sanborn v. Hamilton, 18 Vt., 590.
In the case in hand, the writ under which the defendant acted was an order of general attachment, commanding him to attach the property of Blakeley, Under the mandatory clause of this process, he attached property, the legal title to which was in Kelso, and the beneficial ownership in Clark and Martin, but in which Blakeley had not the vestige of a title, either legal or equitable. Did the law command him to do this? Assuredly not. But it left him to find out for himself whether Blakeley had any leviable interest in this or any other property. Can any court protect him against a prosecution by the party aggrieved?' Not at all; because no court is responsible for the manner-in which he exercised that discretion which the law reposed in him alone. He could not have been sued for a refusal to levy upon this particular property. And if he had any doubts whether it was subject to execution, he could have-demanded of the plaintiff in the attachment a bond of indemnity. Gantt's Big., secs. 2650-1.
The officer is bound to know the law and bound also to-know the contents of his process.
In truth this plea of justification did not even aver that, the goods were the property of the defendant in the writ of: attachment. This was a fatal defect, Buck v. Colbath, supra.
So then the original taking was unlawful, because it was-an unauthorized intermeddling with the goods of a third-person not named in the writ. And this, when followed by a sale, is air unauthorized disposal of the goods of another,, which is another name for conversion, Garland v. Carlisle. 4, Cl. and Fin., 721, Cooper v. Chilly, 1 Burr., 20, per Lord Mansfield; Calkins v. Lockwood, 17 Conn., 154; Billiter v. Young, 6 El. and Bl., 1.
Reversed and remanded for a new trial. | [
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Smith, J.
This was an action against a railway company for personal injuries sustained in its service by a laborer on a construction train. The plaintiff alleged:
That on the twenty-sixth day of January, 1882, while returning to his work from his dinner, the flat car upon which he was riding passed through or between a cattle guard, and so close to same as to catch the foot and ankle of plaintiff between or across the exposed ends of said guard, in such manner as to break the leg of plaintiff in two places, permanently dislocating his ankle and ■otherwise injuring the person of plaintiff. That from and on account of same, plaintiff has suffered permanent injuries, and has been rendered totally unfit for performing the manual labor incident to his occupation, having been rendered a cripple, and confined to his room a greater portion of his time since the said twenty-sixth day of January, 1882. Plaintiff avers that the said injuries upon his person were the proximate result of the fault and negligence of defendant, in the manner of the construc tion and placing of the said cattle guard, and also in compelling employes and plaintiff to ride upon the fíat car; and plaintiff was acting with all due care and diligence at the time he was injuredand that through the fault and negligence of defendant, as alleged, plaintiff has suffered great damages, to-wit, in the sum of four thousand dollars ($4,000).
The defences were : 1st, A denial of negligence in the construction of the cattle guard, or in any other respect. 2nd, Contributory negligence on the part of the defendant, by sitting with his legs hanging over the side of the car, thus voluntarily placing himself in a dangerous situation, and bringing the injury upon himself. 3rd, An averment that defendant was not the owner of the railroad, nor operating the same at the date of the alleged injury, but that the plaintiff was the servant of the St. Louis, Arkansas and Texas Railway, a corporation with which the defendant consolidated, about one month thereafter.
The case was tried before a jury, who assessed the plaintiff’s damages at $1,250.
The defendant company, in its motion for a new trial, among others, assigned the following reasons why the court should grant a new trial, viz.:
1. The verdict is not sustained by the evidence, and is contrary to the law.
4. The court erred in instructing the jury as to the law of the case on the part of the plaintiff.
5. The court erred in refusing to instruct the jury as to-the law of the case on the part of the defendant, as prayed for by the defendant.
As the articles of consolidation produced by the defendant show that it assumed the payment of all debts and liabilities, and the fulfillment of all obligations owing by the companies with which it was consolidated, it is not to be supposed that there was any extraordinary amount of' merit in its third plea.
The testimony fairly proves that the cattle guard at. which Marker was injured had been safely and securely constructed; that the fences or approaches were not. closer than they should be, and sufficient room was left for the widest car used on the road to pass without striking them. Of course’the fencing is put as close as it can be done consistently with the safe passage of trains, and no-allowance is made for anything that may be hanging down-outside of the cars.
It was also in proof that the defendant’s agents in charge-of the train were careful and competent men.
The evidence was not in conflict as to the immediate cause-of the accident. The plaintiff had been for some seven weeks in the service of the company as a day-laborer. He was one of a pai’ty of men employed in constructing and repairing its roadway. He had helped to lay the track, through the same fencing. It was customary for the defendant to convey them to and from their place of work on flat oars. There was a beam six or seven inches high in the centre of the car and running its entire length, on which the men could and did sit. But frequently they sat. on the side of the car with their legs hanging over. This* made it necessary to jerk up their feet in passing crossings., The men had been frequently warned by the conductor and brake man against this dangerous practice.
On the twenty-sixth of January, 1882, the party of laborers, including the plaintiff, were engaged in removing a land slide from the railroad track near Stoney Ciphers.. The car was not crowded. There was plenty of room on the center-beam and elsewhere about the car. Nevertheless the plaintiff was sitting on the edge of a low flat car with his legs dangling down. The train was running fifteen or sixteen miles an hour. In passing a cattle guard his foot ¡struck the approach thereto, and his leg was broken near the ankle. He was immediately taken back to Fayetteville ■and placed under the care of a surgeon, the company paying his board and medical bills to the thirteenth of April, when he was discharged from the hands of the physician as needing no further special cgre.
He testified that he had passed this particular crossing as often as forty times; that he had on this same day passed three cattle guards without drawing up his feet; that he was in the habit of riding thus and in passing a cattle guard would sometimes pull up his feet and sometimes not. On this occasion, as it seems, he attempted to pull up his legs and feet, but was careless or slow about it. Nobody else was hurt.
Here follows the charge of the court:
If the jury believe the defendant, in constructing and «.operating its road, and in constructing the cattle guards and ¡.approach to the cattle guard at the point where the injury ■is alleged to have been received, so carelessly and negligently constructed, kept and operated said cattle guard, .approach thereto, and road, as to render it unusually dan.gerous to plaintiff to pass said cattle guard and approach ¿thereto, and the plaintiff did from such careless and negligent constructing, keeping, and operating, receive injuries without carelessness or negligence on his part, the plaintiff ¡should recover.
If the jury believe that the plaintiff knew that it was ¡unusually dangerous for him to ride on the flat car with his feet hanging over the edge, or if the defendant had warned him that it was unusually dangerous so to ride, and he, in disregard of such knowledge or warning, carelessly and negligently so rode, the plaintiff should not recover.
If the jury believe the defendant was not the owner nor operating the railroad upon which the injury was received at the time of such injury, the plaintiff should not recover. If the jury believe the plaintiff should recover they will assess his damages in any sum, not exceeding four thousand dollars, which they think is warranted by the proof. They will take into consideration in estimating the damage the bodily injuries received, the probable duration of the injury and its effects on the physical powers; the loss of time, expense of necessary medical or surgical attendance and bodily pain ; its degree and probable duration.
The following prayers of the defendant were denied :
5. If the employe is guilty of any want of cave, whereby he unnecessarily exposed himself to danger, and he is injured thereby, he cannot recover from the railway pany.
6. An employe of the railway company, having an oppor-2. tunity to know of danger and risk, is presumed to know of such danger and risk; and if he does not inform himself such danger, he cannot recover from the railroad company.
10. I charge you that if you find from the evidence, that the road with the fencing approaches was constructed by the usual and ordinary rules for constructing the same, and that the plaintiff unnecessarily exposed himself by sitting on the side of the car and hanging his feet down and thereby was injured, you will find for the defendant.
No one can recover damages for an injury which he has brought upon himself by his own negligence. In Railroad Co. v. Jones, 95 U. S., 439, a construction hand riding on the pilot of a locomotive was injured by the collision of his train with some cars standiug on the track. Here the company was guilty of negligence, but the plaintiff was not permitted to recover, because his own concurring and co-operative fault, in needlessly occupying a place of peril, had contributed to produce the injury.
Mr. Justice Swayne, in delivering the opinion of the court, said: “The company, though bound to a high degree of care, did not insure his safety. He was not an infant, nor non compos. The liability of the company was conditioned upon the exercise of reasonable and proper care and ■caution on his part. Without the latter the former could ■not arise. He and another who rode beside him wei’e the only persons hurt upon the train. All thosein the box car, where he should have been, were uninjured. He would have escaped also if he had been there. His injury was due to his own recklessness and folly. He was himself the author of his misfortune. This is shown -with as near an approach to a demonstration as anything short of mathematics will permit.” See also to the same effect St. L., I. M. & S. Ry. v. Freeman, 36 Ark., 41; L. R. & Ft. S. Ry. v. Parkhurst, Ib. 371; same v. Miles, 40 Id.; Daggett v. I. C. R. Co., 34 Iowa, 284.
There is a total failure of evidence to support the verdict, and the court erred in refusing the instructions above •copied.
Judgment reversed, and the cause remanded with directions to grant a new trial and to proceed in conformity with this opinion. | [
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Eakin, J.
This is an action of ejectment, begun by theadministratrix of W. W. Andrews against William Norman to recover the N. E. quarter of section eight, in town •ship twelve, south of range twenty-three west; a tract of land which was included in the grant of lands from the United States, made to the state of Arkansas on the ninth of February, 1853, to aid in the construction of a railroad from the Mississippi river, opposite the mouth of the Ohio, .by way of Little Rock to the Texas boundary near Fulton. The conditions of said grant were not complied with, and the lands by the terms of it would have reverted to the United States, but for an additional act of July 28th, 1866, by which the former act was revived and extended for a period of ten years in which the road was completed.
For detailed provisions of these acts, gee acts of congress of the respective years andpp. 142 and 143, Gantt’s Digest. The lands were to be applied solely to .the construction of the road and “tono other purpose whatsoever.” They were to be sold only as the work progressed, in quantities not to exceed one hundred and twenty sections of land in the beginning, contiguous to some continuous section of twenty miles of road, and so on for each continuous twenty-mile section until all be completed. It was .provided that the lands granted should be subject to the disposal of the State legislature for the purposes aforesaid and no other.
By acts of sixteenth of January, 1855, and twenty-sixth November, 1856, these lands were granted by the State to the Cairo & Fulton Railroad Company, which had been chartered by the State and had established its line along •the route indicated by congress, subject to al. the limitations and provisions of the original donating act.
On the first day of November, 1859, said company, contemplating the issue of five million dollars in bonds, conveyed all the said lands in trust to Brayman, Moore and Wilson. The provisions of the deed were long and minute in detail. It is sufficient to say that the general purpose of it was to authorize a sale of the lands to take up the bonds, or provide a fund for their redemption. No regard was* paid to the congressional restriction as to the twenty mile sections. The bonds, in blank, it seems were put in the-hands of Brayman for negotiation.
Before any action was taken under the trust deed, the civil war became flagrant. The executive committee'of the railroad, at Little Rock, on the twenty-sixth of July, 1861, determined that the bonds in the hands of Brayman ought not to be issued, and should not be, under any pretence, until further orders of the directory; and it was made the duty of the president of the road to reclaim them from Brayman. It was further determined that said trustees were no longer competent to act as such, being citizens of Illinois, a foreign government at war with this; and that their offices-had become vacant. Three other trustees, Ashley, Wait and Woodruff, were appointed in their stead to hold and-protect the property with all the authorities, powers and rights conferred upon the original ones. They were further empowered, for the purpose of paying expenses of the trust, and the just debts and liabilities incurred by the company to sell lands to a limited extent, not to exceed one hundred thousand dollars, without further order of the directory ; and to execute deeds to the purchasers. 0
This action of the executive committee was approved and confirmed by the directory on the eleventh of November, 1861. Neither the trust deed, nor this action of the directory substituting new trustees, was ever recorded in Hemp-stead county, where the particular tract now in controversy lies.
On the sixteenth of December, 1861, the new trustees,. Ashley, Wait and Woodruff, sold and conveyed the particular tract in controversy, with other lands,, to Wm. W.. Andrews for the sum of nine hundred dollars. They recite-that it was done “by virtue of a deed of trust executed by the said Cairo & Fulton Railroad Company in Arkansas, on the first day of November, 1859 ; and the resolution and order of the executive committee of said company on the twenty-sixth day of July, 1861.” They undertake to convey only such rights as were granted to, and vested in, the company. This deed was duly recorded, and upon it the plaintiff below rests.
On the tenth day of December, 1870, the Cairo and Fulton Railroad Company entered into indentures with the Union Trust Company of New York. The instrument refers to the different acts and resolutions of congress by which the land grant had been made and extended, and recites that the railroad company intended to issue bonds to> the extent of $8,000,000, which the instrument was intended, to secure. In trust for that purpose, the railroad company conveyed to the Union Trust Company all the lands so granted by congress, including the tract in question, and, also the railroad itself to be constructed, with all of its-houses and rolling-stock, rights-of-way, franchises, etc. It was agreed that the railroad company should make sales, of the lands in accordance with certain regulations for the purpose, not necessary to specify, and that the Trust Company should make title to the purchasers “to hold in fee-simple by full and sufficient deeds.” There were many elaborate provisions in the deed of trust to effectuate the-principal object, but they have no bearing on this case.
On the eleventh day of January, 1876, J. J. Vickers purchased through Essex, its attorney in fact, from the St. Louis, Iron Mountain & Southern Railroad Company, with which the Cairo&Fulton Co. had then become consolidated* a portion of the land in controversy, to-wit: The west half of the northeast quarter, section eight, township twelve south, of range twenty-three west. He paid in cash to the Union Trust Company thirty dollars and executed four notes to the order of said Trust Company for $112.50 each, payable with interest respectively on the first days of Janu- ■ ary 1877, ’78, ’79, and ’80. The railroad company executed to him a bond for title to be made by execution of a deed upon the payment of the notes. The Trust Company -also, on its part, acknowledged the receipt of the cash and notes, and covenanted on payment to execute a release of the land. Vickers, by written assignment, endorsed and acknowledged on the instrument, conveyed all his interest to ■defendant Norman on the twenty-fourth of April, 1876, for the expressed consideration of one hundred dollars, and directed the Trust Company to convey to Norman on pay-ment of the notes.
Norman, in his answer, denied the title of Andrews’ estate in the whole quarter section, and set up, in defense, -the title thus derived from the Cairo & Fulton E. E. through ■the Trust Company and Vickers. Pending the suit Norman died and it was revived.
The case was submitted to the court upon the pleadings ■and agreed statement of facts, by which it was admitted : that the deed of trust to Brayman et al, was duly executed; the order of the executive committee was made and approved by the directory ; and that the substituted trustees •conveyed to Andrews by deed duly recorded, and that Andrews went into possession under the deed.
Admitting also the execution of the deed of trust to the Union Trust Company: That the lands were a part of the -congressional grant and embraced in both trusts ; the consolidation of the railroad companies, and that the St. Louis •& Iron Mountain road became entitled to all the rights of the former; the sale to Vickers, as set forth above ; the assignment to defendant, and that defendent was placed in .possession under the assignment.
Also admitting that the deed to Union Trust Company, .had been duly recorded and the deed to Brayman et al had not. Further, that no part of the Cairo & Fulton E. -E. was built or in progress of construction until the year 1870. Further, that Vickers had notice in fact of Andrews’ claim when he purchased, but that defendant Norman had no actual notice of plaintiff’s claim, or of the deed-of trust to Brayman and others, and that Norman had for-two years occupied and cultivated the lands sued for.
The court declared the law upon the facts, exhibits and! pleadings to be, that the title to the land by virtue of the-sale to Andrews, became vested in him, when it afterwards became perfect in the raili'oad company, by the completion of the road, and that the company would be estopped from denying the efficacy of any acts done by Wait, Ashley and Woodruff, in accordance with the terms of the powers conferred, which estoppel would extend to all claiming subsequently under the company. That by virtue of the recording of Andrews’ deed, Norman and those under whom he claimed, had notice of Andrews’ title, and that defendant having occupied for two years was liable for use and occupation.
The court refused, for the defendant, to declare that the-plaintiff had shown no cause of action ; that for want of the-due recording of the deed to Brayman and others, the full title passed to Union Trust Company; that the railroad company had no right to dispose of the lands when the’ sale-was made to Andrews ; that the second set of trustees were-never legally appointed, nor empowered to sell the lands..
Judgment for plaintiff for the whole quarter section and. two hundred dollars damages.
Exceptions were duly saved by proper bill,'- and a motion for a new trial being refused, defendant appealed.
By sec. 4, ch. XXXI, of the Revised Statutes of 1838,. (Gantt’s Rig., sec. 832): “If any person shall convey any real estate by deed purporting to convey the same in fee simple, absolute or any less estate; and shall not at the time of said conveyance, have the legal estate in such lands,, but shall afterward acquire the same, the legal or equitable. estate afterward acquired shall immediately pass to the grantee ; and such conveyance shall be as valid as if such legal or equitable estate had been in the grantor at time of the conveyance.”
In the case of Locke v. Brogan and Thorn, 5 Ark., 693, there was a very strong application of this act. Chester Ashley made a deed to Woodruff of lands to which he •did not himself obtain title, until nearly fourteen years afterwards. Meanwhile Woodruff had sold to others. It was held that Ashley’s after-acquired title would take the line of the previous conveyances and vest in the heirs of the last vendee.
So in Watkins & Trapnell v. Wassell, 15 Ark., 73, there was another vexy vigorous effect given to the act. Although, by statute, judgments are liens on aftex-aequired lands, yet it was held that if the debtor had previously conveyed the lands befox'e he acquired title, and before the judgment, the after-acquired title eluded the judgment lien axxd vested in the grantee. In other words, uuless there be intexwening rights to be protected, after-acquired lands pass in all respects as if the same title had been in the grantor at the time of conveyance.
We can conceive no reason why this should not apply to corporations as well as individuals. It is the law of our State, whatever may be the decisions of other states upon common law principles. Equitable estoppels stand upon their own peculiar grounds. The effect of our statute is at law, as well as in equity.
The railroad company, at the time of the sale by its appointed trustees, Woodruff and others, to Andrews, had not completed any of the road and had no right to sell. Nevertheless it did afterwards complete the road, and all the lands, including these, became vested in it, which had been granted by congress. Neither the United States nor the State claimed the reversion, xxor objected, and the sale vested title in Andrews against all the world, except those who by acquiring a better title and right might have, grounds to object.
The Union Trust Company, under which defendant claims half the lands sued for, did acquire such better right, for the benefit of its cestuis que trust the bond holders in the mortgage. There is no proof that it, or the bond holders whom it represented, had any notice of the unrecorded deed of trust to Brayman and others, and it was under that deed the new trustees had acted. The deed to Andrews was recorded but the trust deed giving the power to sell to Andrews was not. Nor was there any record of the action of the executive committee or the board of directory affirming it, showing an authority in Wait, Woodruff and Ashley to sell. Whether they derived their power from the trust deed or from the directory, in either view there was nothing in their deed, signed and sealed by them individually, to give notice of an alienation by the Cairo & Fulton Railroad Co. Powers, by which deeds are executed, must be recorded also. Gantt’s Dig., sec. 851, 852.
We do not mean to be understood as holding, here and mow, that the Trust Company would have been bound, even >by actual or recorded notice of this premature sale to An•drews in direct violation of the law of congress. It is not necessary to this case. Suffice it to say that there was no notice, and the land became subject to sale'by the Trust •Company, in accordance ' with the terms of the trust. Notice by Vickers of Andrews’ former purchase is unimportant. If it were absolved from any burden resulting from notice, in the hands of the Trust Company, the latter might sell to a purchaser with notice ; otherwise, the value of the property as security would be 'destroyed. It follows, therefore, that Norman had the better title to the wrest half of the northeast quarter of section eight in said township and range.
With regard to the east half he shows no better title than Andrews’ estate, which is prima facie good, unless the land5 be claimed under authority of the Trust Company or some-superior title.
The court erred in its declarations, and in its application of the law. The judgment on the case as made should have been for the plaintiff, only for the east half of the quarter section and such damages as might have been shown for the detention of that.
Reverse the judgment and remand the cause for further proceedings in accordance with law and this opinion.. | [
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Eakin, J.
The court is moved, in this cause, to dismiss an appeal granted by the clerk here. The attitude of the litigation in the court below, is as follow :
Appellee Phillips, with one Leiburt, as tenants in common, sued Fitzpatrick in ejectment to recover a lot in the city of Helena. They set forth their ownership, and showed that defendant had taken possession under a purchase of the interest of Phillips at an execution sale, by the sheriff, made in October, 1882. The possession was taken about the first of January following, without the consent of Phillips, and before the time of redemption expired. Fitzpatrick, in his answer, admitted title in plaintiffs, and that he had no other right than by execution sale, upon which the time for redemption had not expired. He made, however, a claim in equity, by cross-bill, for a lien on the property for expenditures in repairs necessary to preserve it; justifying his entry and possession on the ground that Phillips and the other owner were both absent, that the repairs were necessary, and that both had afterwards done acts amounting to an implied ratification of his course. There was a motion to transfer to the equity docket, and a demurrer to the answer left undisposed of. Also, a reply filed, putting in issue the material facts of the answer.
Pending this cause, and almost pari passu, another action of forcible entry and detainer was proceeding at the suit of Phillips alone, against Fitzpatrick and tenants whom he had put in. The pleadings in this cause set forth substantially the same facts. The answer and reply were almost identical with those in the other cause ; and after various interlocutory proceedings, it was transferred to the equity docket to be consolidated with the first cause.
There was an order made in the first cause disposing of a pending demurrer, and transferring it to the equity docket, where it was, by the same order, consolidated with the-other, that they might proceed together to a final decree. The court proceeded to recite that it appeared from the allegations of the complaint and the admissions of the answer, 'that the plaintiffs were lawfully seized and entitled to the possession, and that the defendant was holding them without right. He therefore ordered that the plaintiffs recover them of the defendant, with the possession, subject to the equitable rights of defendant “hereinafter set forth,” and the defendant was ordered to give them up. The court proceeded further to recite the purchase at the execution sale, the entry by defendant, the repairs made and the claim of(lj defendant for reimbursement and an equitable lien. Without deciding upon that, the court ordered an account to be taken by the Master to ascertain and report the condition of the buildings when defendant took them, and of the value and necessity of the repairs, and of the value of rents — the report to be made at the next term. The defendant, Fitzpatrick, failing to obtain an appeal from the court below, applied to our clerk, who granted it, under the impression that he was required by the statute to do so. The appellees contend that the order is not final, and that the' appeal was improvidently granted.
The form of the order seems final as to title of the property, and it was not strange that the clerk, even with his long experience, should have been misled to suppose it was so. It requires a closer study of the transcript, than a clerk is expected to give, on application for an appeal, to disclose the true nature of the order. It settles nothing at issue, and was not intended to do so. The title to the lands was not in controversy, nor even the right of possession, except in so far as it might be drawn incidentally to the defendant by his supposed lien. This did not follow, necessarily, even if he had one, a point we will not now determine. It is the very question at issue below, and the ■only question; for if it exists the court can enforce it as easily with the possession in the hands of one as the other— and the lien and not the lot, is all the defendant claims.
The court found him helping himself to his remedy, and in the exercise of what seems to us a very sound discretion,, put the property where it belonged, without prejudice to his rights upon the real issues to be determined. The court-will have no difficulty in finding the property on final decree, and making it subject to any lien it may impose. There can be no removal of it, nor alienation pendente lite,. nor injury which the court may not immediately restrain.
Fairly considered the order or decree settles nothing in the actual controversy, and is purely interlocutory. It comes within the principles declared in Miller v. O’Bryan, 36 Ark., 204.
Let the appeal be dismissed, and the cause proceed below. | [
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Smith, J.
This suit was brought for the purpose of enjoining the board of railroad commissioners from assessing for taxation the plaintiff’s road, rolling stock, fixtures and appurtenances. The claim of exemption is based upon the charter of the Cairo and Eulton Railroad Company, granted January 12, 1853.
The provisions of the charter, so far as they affect the present case, are as follows :
“Section 10. Said corporation shall have power to unite their road with the southern end of the Missouri road at some suitable point on the line which divides these two States, and its southern end with any road coming in from Texas, at such point on the boundary line which divides that State and Arkansas that may be deemed most eligible, and to make any contract or agreement with any other railroad company in reference to their business that may best insure the early construction of said road and its successful management, and also to make joint stock with any other railroad company in this or any other State, and to form one board of directors for the management of their affairs, if it should be found necessary to facilitate the early construction of their said road. The contract or agreement of the respective boards shall form a part of their respective charters whenever the same may be entered into, and recorded with their charters,” — Acts 1852, p. 180.
“Sec. 11. That the said capital stock and dividends of said company shall be forever exempt from taxation, the road, fixtures and appurtenances shall be exempt from taxation until after it pays an interest of not less than ten per cent, per annum.”
“See. 13. This act shall be deemed a public act, and shall be favorably construed for all the purposes therein expi’essed and declared, in all courts and places whatsoever, and shall be in force from and after its passage ; provided that all the rights, privileges, immunities and franchises contained in the charter granted at this session of the legislature 'of this State to ‘The Mississippi Valley Railroad Company,’ and not restricting or inconsistent with this act, are hereby extended to and shall form a part of this incorporation, as fully as if the same was inserted herein.”
Sec. 25 of the charter of the “Mississippi Valley Railroad Company” reads as follows : “The capital stock of said company, with all its immunities and franchises herein specified, and all machines, cars, engines, or carnages belonging to said company, together with all their works and property, and all profits which shall arise from the same, shall be vested in the respective stockholders of the company forever, in proportion to their respective shares. And the capital stock of said company and .the dividends shall be-exempted from taxation until a dividend of six per cent, is-realized upon the capital stock, and the road, with all its-fixtures and appurtenances, including workshops, warehouses and vehicles of transportation, shall be exempted from taxation for the period of twenty-five years from the-completion of the road, and no tax shall ever be levied on said road or its fixtures, which will reduce the dividends-'below ten per cent, per annum. Said stockholders shall not be bound or liable for any greater amount than the respective-shares or stock which they or either of them own.”
The complaint states that plaintiffs road was completed, on the fifth day of December, 1873. Also, that under the “tenth section of its charter it consolidated with the St. Louis and Iron Mountain Railroad Company, a corporation organized and created under the laws of Missouri, whose road connected with the said Cairo and Eulton Railroad at the line between said States, and assumed the corporate name of the St. Louis, Iron, M( untain and Southern Railway Company, and on the second day of June, 1874, filed articles of consolidation in the office of the secretary of state, and that its road had never paid an interest of ten percent. per annum, and had never made nor declared any dividend on its capital stóck. Nevertheless, the legislature of this State had, by a statute approved March 31, 1883, enti tied, “an act to revise and amend the revenue laws of Arkansas,” required the plaintiff to returna sworn schedule of its property with a view to taxation; and the defendants, a board of railroad commissioners, were proceeding to assess said road, fixtures and appurtenances.
The answer is as follows :
‘ ‘ I. That the consolidation mentioned in the complaint was effected after the completion of said Cairo and Fulton Railroad, and was had in virtue of the forty-third section of an act of the general assembly of the State of Arkansas, entitled ‘an act to provide for a general system of railroad incorporation,’ approved July 23, 1868.
“II. Said capital stock of said Cairo and Fulton Railroad Company has paid an interest of ten per cent., per annum, and said road has paid a like interest. ”
The law referred to in the first paragraph of the answer reads as follows:
“ Sec. 43. Any railroad company now chartered under existing laws, or which may hereafter become incorporated under this law, shall have power and authority to purchase and hold any connecting railroad and operate the same, or to consolidate their companies and make one company under the name of one or both, or any other name; but when such purchase is made or consolidation is effected, the said company shall have and be entitled to all the benefits, rights, franchises lands and tenements, and property of every description belonging to said road or roads so sold or consolidated ; and shall be liable to all the pains and penalties imposed by their respective charters. ”
Depositions were taken as to the cost and income of the road, and upon final hearing the chancellor dismissed the bill.
The plaintiff can derive no benefit in this suit from the x reference in its charter to the charter of the Mississippi galley Company. By the thirteenth section above quoted, “all the rights, privileges, immunities and franchises contained in the charter of the Mississippi Valley Railroad and not restricting or inconsistent with this act, ” are extended to the Cairo and Fulton Company as fully as if the same had been inserted in its act of incorporation. By a comparison of the exemption clauses in the two charters, it will be seen that the provisions as to the exemption from taxation are fundamentally different. They are therefore inconsistent, and the special provisions on this subject in the charter of the Cairo and Fulton Company are not enlarged by the reference clause.
The constitution of 1836, in force when the charter was granted, contained no restraint on the action of the legislature in granting immunity from taxation. Hence the general assembly had the power to bind the State in relinquishing its power to tax this corporation.
But every such immunity must receive a strict construe-2tion. “ It is manifest that legislation which it is claimed relieves any species of property from its due proportion of the general burdens of government should be so clear that there can be neither reasonable doubt nor controversy about its terms. * * * If, on any fair construction of the legislation, there is a reasonable doubt whether the contract is made out, this doubt must be solved in favor of the State. In other words, the language must be of such a character as, fairly interpreted, leaves no room for controversy. ” Bailey v. McGuire, 22 Wall., 226.
“It is never for the interest of the State to surrender the power of taxation, and an intention to do so will not be imputed to it unless the language employed leaves no other alternative.” lb.
But it is argued that this rule is suspended by the thirteenth section of the charter, which provides that it shall be liberally construed “for the objects therein set forth. ” The rule of strict construction,universally applied to exemp tions from taxation, demands that this provision shall be limited m its operation to the powers granted to the corporation. It cannot be supposed that the Legislature intended any laxity of construction in a matter so vital to the public interest as that of taxation.
But, by its charter, a limited and conditional exemption from taxation was granted to the Cairo and Fulton Company. It only remains to consider whether the plaintiff is the same corporation to which the grant was made, or has succeeded to its rights in this respect. Obviously, the plaintiff is not the old Cairo and Fulton Company, nor does it claim to be. The complaint shows a consolidation with a Missouri corporation. And in the absence of a contrary intention, clearly expressed in the law authorizing it, the legal effect of a consolidation is to extinguish the constituent companies and to create a new corporation, with property, liabilities and stockholders derived from those then passing out of existence. McMahan v. Morrison, 16 Ind., 172; Lawman v. Lebanon Railroad Co., 30 Pa. St., 42; Clearwater v. Meredith, 1 Wall., 25; State v. Sherman, 22 Ohio St., 411; Shields v. State, 26 1d., 86 : Same case on error, 95 U, S., 319; Central Railroad Co. v. Georgia, 92 Id., 665; Railroad Co. v. Maine, 96 Id., 499 ; Railroad Co. v. Georgia, 98 Id., 359.
But ^he claim is that the Cairo and Fulton Company, pursuant to authority contained in its charter, united itself with the St. Louis and Iron Mountain Company, and that the resultant company, the present plamüft, is entitled to all the rights, privileges and immunities of the original companies, including the exemption from taxation granted by the Cairo and Fulton charter. This consolidation was effected on the thirtieth of April, 1874, and after the completion of the road which the old company was incorporated to build. Upon a fair construction of this charter, •the power to consolidate with any other railroad company in or out of the State was given. But, unless we are to pay no attention to the clause, “if it should be found necessary to facilitate the early construction of their said road,” the exercise of this power must be limited to the period during which the road was in process of construction. Hence the Cairo and Fulton Company had not power, by virtue of its charter, to consolidate with the St. Louis and Iron Mountain Company on the thirtieth of April,1874.
We attach no importance to the extra-judicial remarks of the judge who delivered the opinion in Zimmer v. State, 30 Ark., 677, to the effect that this consolidation was effected by virtue of a charter provision, and that the St, Louis, Iron Mountain and Southern Company had succeeded •to all the rights, privileges, franchises and immunities of the Cairo and Fulton company. It did not appear in that case that the consolidation took place after the completion of the road. The right to consolidate and the effect of consolidation upon the chartered rights of the company were expressly withdrawn from the consideration of the court by agreement of counsel.
That case arose in this way: Zimmer, an employe of the St. Louis, Iron Mountain and Southern Railroad, was indicted for failure to work on the public road. Now the charter of the Mississippi Yalley Company exempts its servants from road duty. . And the only question which could have been properly decided on that record was whether the reference clause in the charter of the Cairo and Fulton ■Company was operative to confer a like exemption upon the servants of the last named company. For the bill of exceptions in that ease shows that it was expressly admitted that, if the Cairo and Fulton Company had ever enjoyed this exemption, then by virtue of the consolidation it had passed to the St. Louis, Iron Mountain and Southern Company,
But if we are in error in our position that the charter did not authorize consolidation after the road was finished, it is-be observed that the charter is silent about the effect of . . consolidation upon the corporate rights, powers, privileges and immunities granted by it. It does not declare that the-new corporation shall be entitled to all the benefits, rights- and franchises of the old corporations. Now it is an unbending rule of construction that an exemption from taxation is strictissimi juris. As it is never created in the first instance by implication, so it is never extended by construction. A claim of this sort cannot be supported, unless the statute alleged to confer it is so plain as to leave no room for controversy. “In the construction of a charter, to be-in doubt is to be resolved, and every resolution which springs from doubt is against the corporation. ” Charles River Bridge v. Warren Bridge, 11 Peters, 543; Central Railroad Company v. Georgia, 92 U. S., 674; Penn. Railroad Co. v. Canal Com’rs, 21 Pa. St., 9 per Black, C. J.
We do not mean to say that the consolidation of these two companies was, at the time it took place, unlawful. The act of July 23, 1868, providing for a general system of railroad incorporation, was then in force ; and its forty-third section (sec. 4,969 of Gantt’s Digest) authorized consolidation, and declared that the company springing-from such union should succeed to all the benefits, rights,, franchises, lands and-property of every description belonging to the roads so consolidated. But before the passage of that act the constitution of 1868 had taken effect, and it-contained the following provisions :
“ The general assembly shall pass no act conferring corporate powers. Corporations may be formed under general laws, but all such laws may from time be altered or repealed.” Art. V, sec. 8.
“ The general assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens. ” Art. I, see. 18.
‘ ‘ The property of corporations now existing or hereafter 'created shall forever be subject to taxation the same as property of individualsArt. V, see. 48.
Now, if the act of 1868 was the sole authority for the consolidation at the time that it actually took place, there can be no doubt that the plaintiff in this suit took the Cairo and Fulton charter subject to the constitutional provisions then in force. In that view the present case is not distinguishable from Shields v. Ohio, 95 U. S., 319 ; Railroad Co. v. Georgia, 98 U. S., 359 : and L. & N. R. Co. v. Palmes, 3 Supreme Court Reporter, 193. In the last of these cases it was said “ that incase of corporations created by consolidation, the powers of the new company did not pass to it by transmission from its constituents, but rcsnlted from a new legislative grant that could not transcend the constitutional authority existing at the time it took effect. * * * The exemption was not impressed upon the property itself, into whosesoever hands it might afterwards come, following the title like an easement or covenant running with the land. * * * The grant is to a person in respect of a thiug, * * * There must always be a person capable, not only of receiving the title, but also of accepting the conditions accompanying it and which constitutes the exemption ; otherwise the conditions become impossible and void. * * * After the adoption of the constitution of 1868 there could be no corporation created capable in law of accepting and enjoying such an exemption. ”
There is another consideration which leads to the same . . result. The exemption of the Cairo and Fulton Company 1 " was not absolute and perpetual, but conditional and qualA 1 1 fied. No tax was to be levied until ten per cent, per annum -on the amount expended in building and equipping it was realized. St. Louis Railway v. Loftin, 30 Ark., 718.
This provision undoubtedly implied an accounting between the company and the State. It imposed upon the company the duty of keeping accounts of the cost of construction and equipment of its road, and of its receipts and expenditures. Else, how could it be ascertained whether the contingency had arisen upon which the road was to become taxable?
But the new company was subject to no such duty. This brings the case within the operation of the principle laid down in Railroad Company v. Maine, 96 U. S., 499, where it was said:—
“The assets of all the companies were intermingled, and continuous trains were running over the whole length of the several roads'. It would have been impossible to show what would have been the profit of each road without the ■consolidation. Only an approximation to them would have been attainable ; and that would have been based upon estimates more or less speculative in their character.
“The consolidation of the original companies was a voluntary proceeding on their part. The law made it dependent upon their agreement. Plaving thus disabled themselves from a compliance with the conditions, upon the performance of which the amount to be paid as a tax to the State could be ascertained, they must be considered as having waived the exemption dependent upon such performance. Their exemption was qualified by their duties, and dependent upon them. They incapacitated themselves from the performance of those 'duties by a proceeding which they •supposed would give them greater advantages than their exemption. The new company was not charged with the ■duties which they were to perform to the State, and by which the State was to be governed in its taxation, nor was the State under any obligation to accept a substituted performance from other parties.”
The chancellor, as it appears from his written opinion, -found that that part of the plaintiff’s road in this State, and formerly known as the Cairo and Fulton road, had yielded by its operations a net income of ten per cent, per •annum on the cost of construction and equipment. What •we have already said renders it unnecessary to go into this •question. In the very nature of things, it is impossible to •do more than guess at it. It appears by the plaintiff’s own proof that its officers cannot tell, save by an approximation, ■what the actual earnings of this part of the road are.
The decree is affirmed. | [
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English, C. J.
Thomas J. Patton was indicted for a misdemeanor in the circuit court of Ouachita county. He filed a demurrer to the indictment which the court overruled and adjudged that he pay all costs in and about the d.emurrer expended.
He then pleaded not guilty, was tried and acquitted, and the final judgment was that he “be discharged and that ■Ouachita county pay all costs'herein expended.”
In taxing up the costs in the case, the clerk taxed defendant with costs on the demurrer to the indictment, $7,30, including a fee of $5 to the prosecuting attorney. Defendant filed a motion to retax the costs, which was overruled by the court, and he appealed.
It is submitted for appellant — first, that he should have been taxed with no costs; and second, that if taxable with the costs of the demurrer, there is no statute allowing the prosecuting attorney a fee of $5 on a judgment merely •overruling 'a demurrer to an indictment.
I. Ordinarily, the costs in a criminal case will abide and follow the final judgment. But, if in the course of the prosecution, the court has specially adjudged the cost of some particular matter against defendant, the general judgment for costs against the county on his acquittal will not. relieve him from such specially adjudged costs.
II. There is no statute allowing a prosecuting attorney a fee of $5 on a judgment overruling a demurrer in a criminal prosecution. In criminal prosecutions he is allowed no fees except on convictions. — Fees Act. thirteenth Dec.,, 1875, sec. 1.
He is allowed a fee of $5 “ for each judgment obtained on complaint, information, or otherwise in the name of the State or any county,” — lb. But this has no application to-a judgment merely overruling a demurrer to an indictment, in a criminal case.
Reversed and remanded to the court below with instructions to sustain the motion to retax the costs, by striking-from the costs taxed against appellant the fee of $5 to the prosecuting attorney. | [
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Eakin, J.
Lina, Theurer, and her two children, Mary C. and Joseph Theurer, were in 1859, the owners of a 200 acre farm in Sebastian county, which had been conveyed to them jointly by deed from Wood and wife. The husband and father George Theurer was living but had no interest, in the property. He afterwards disappeared, and after an absence of five years, without being heard of, was presumed to be dead.
At sometime, the transcript does not advise us when, the said Lina and her children filed a complaint to recover possession of this land, against Frances and James Dona-hoe, who, they alleged, were unlawfully keeping them out of the possession. Their deed is exhibited. It does not appear that any summons was issued against these defendants, or that they appeared.
At the February term, 1877, complainants were, on motion, allowed to add as defendants, Edward C. Brogan, as adm’r. of the estate of Joseph Brogan, and J. H. Davis, against whom a summons was issued on the seventeenth day of May, 1877, which was the beginning of the suit. It was dismissed as to the Donahoes. At the September term, 1877, the case was, on motion of defendants, transferred to the equity docket, and the said administrator answered, pleading:
1. The statute of limitations.
2. That George Theurer had purchased the land in question from Wood with his own money, and in connection with it, an adjoining tract of 80 acres; and had caused a deed for the first tract to be made to plaintiffs, and for the second, to his wife Lina and himself. That after two years occupation, he and his wife desired to dispose of the farm and invest the proceeds in Ft. Smith property, yielding rent, and to that end he procured letters of guardianship for his children ; and at the April term of the probate court of the county, obtained an order to sell the interests of his wards in the land at public or private sale. That after having negotiated with one Jno. O. Latham for the exchange of the premises for a lot and store house in Ft. Smith, he sold the two tracts to Joseph Brogan, the intes tate; the part belonging to complainants being valued at $4965.60. The intention and understanding of the parties was that he as guardian should convey the interests of his wards, and that he as an individual should convey his half interest in the 80 acre tract, whilst Mrs. Theurer should convey her interest in both. But the matter was entrusted to a careless attorney, he says, who drafted two deeds, one of which was executed by Theurer and wife, and the other by Theurer only as guardian. This is alleged as a mistake by accident, inasmuch as Mrs. Theurer intended by one deed or the other to convey all her interest in both tracts ; and that all parties until very recently, remained under the impression that it had been done.
The sales and deeds were reported to the court and duly confirmed. It is alleged that Brogan went into peaceable possession and continued it adversely during life, and that the administrator has held adversely since.
It is further stated that' Brogan paid the money for both tracts, and that Theurer invested the same money in the purchase of the store house and lot from Latham, taking the deed in his own name. That he and his family remained in possession of it, enjoying the rents and profits, until it was destroyed by fire in 1872. Further, that the lots were of as great value as the land, and more available to the family. Theurer left the country in 1864 and has not since been heard from. The administration on his •estate has been closed.
The defendant administrator prays cross relief; asking —first, that the complainants be perpetually enjoined from setting up any title or claim to the land; and second, that the title of the heirs and legal representatives of Joseph Brogan be quieted; or in the alternative, that if the court should hold the sale by Theurer of his wards’ interest to be void, that an account be taken of the value, and of the rents and profits of the Ft. Smith property occupied by the plaintiffs, less the value of the rents and profits of the farm, ■and that complainants be decreed to pay the difference to respondent, and that the Et. Smith property be charged.
To this answer and cross-bill there was a general •demurrer which was overruled. The material facts of the ■cross-complaint were put in issue by the reply.
Upon hearing in equity the court found that said Lina •and the elder of the children were barred by the statute of limitations; and as to the other complainant, although not barred, yet that all his interest had passed under the sale by his guardian -, and that the deed from Wood and wife as to the third claimed by Mrs. Theurer was a cloud on the title of defendant Brogan. It was decreed that the title of the heirs and legal representatives of Joseph Brogan be quieted. The plaintiff moved for a new trial, which is unnecessary in a chancery proceeding of this nature, arid brought upon the record by bill of exceptions such evidence and proceedings as would not otherwise have appeared in the record, which was proper.
Erom this statement it will be observed, that throughout, this is a contest on both sides, not alone for the immediate possession of the laud, but to settle the title in fee simple for all time. The plaintiff’s demand under claim of fee ■simple, and the object of the cross-complaint is to establish it in the heirs of Joseph Brogan, subject to airy right his administrator may have to the possession. This right under ■our system is only a qualified one, depending on the existence •of debts, and the necessity of charging the lands with them 'as assets. The relief granted affected the title. That title, if Joseph Brogan had any, belonged to the heirs, whom the administrator had no right to represent. See sec. 68 of Gantt’s Digest.
In the action of ejectment, the plaintiff is not bound to make any other, defendant, than the party in possession; and the lessor of that party may come in and defend the action, or any other person may through whom defendant claims title. But in equity cases, the general rale of law must prevail, that all persons whose interests are to bodirect ly affected by the decree are either proper or necessary parties. And they are always necessary whenever “a determination of the controversy between the parties before the court cannot be made without the presence of other parties.” When this becomes apparent the duty devolves upon the court, itself, to order them to be brought in, and to enforce its orders upon the parties before it by apt methods, lb., sec. 4481. A determination of a controversy regarding title to lands cannot be made without the presence of the-heirs of a deceased person claiming them, although one regarding the possession, probably, might. No such controversy as the former ought to be allowed by the court to-proceed. It is clear, for instance, that a bill in chancery, seeking to remove a cloud from title, or to relieve agaiust a. fraud, or correct a mistake affecting title, ought not to be entertained by a court without the presence of those to be benefited or barred by the decree. In this case it is the heirs principally who are benefited, or would be if the decree were proper. It does not appear in the pleadings that the lands are necessary to the administrator to pay debts. They may be or may not. The principal object of the decree is to determine title, and for that it is nugatory. If it had been against the heirs it would not have bound them. Being for them it cannot bind the plaintiffs, for estoppels must be mutual. The plaintiffs may sue the heirs-again as soon as they take possession. It concerns the common-weal that there should be an end of strife, and this ’is-too meagre a result of a litigious proceeding.
Upon the filing of the equitable answer and cross-complaint it became evident that the controversy regarded title, ■ and that the proper parties were not present. The cross-bill should have been by the heirs, with or without the administrator. The court should have ordered the latter to bring them in, either as parties complainant, or if any refused, as parties defendant to the cross-complaint, or on default or disobedience, have confined him to a simple defense under the statute pro inter esse suo. The [plaintiffs are not without fault. They might have moved the court for such an order, or have assigned the want of proper parties as a special ground of their demurrer. They demurred .generally, and went to hearing on a cross-bill in equity, Avhieh made a contest between their own title, and that of parties who were not in court, nor represented there by any •authorized person. We think the proceeding erroneous.
Sisk v. Almon et al., 34 Ark., 391, decides this very question if we do not recede from it. We have re-examined the question not without some misgivings, but can reach no other conclusion either on principle or authority. It is in harmony with the general practice of the State whose code of practice nearest resembles our own. Newman's Pleading and Practice, p. 190.
In Kentucky it is settled, both by the courts and after-wards by legislative enactment, that “wherever the petition omits a party deemed necessary by the chancellor, he ought, before final hearing, to notify the petitioner thereof, and give him reasonable time to supply the defect,” A dismissal without that would be premature, Ogle v. Clough, 2 Duv., 146; but it is equally clear that that much should be done.
It may prevent misapprehension to add that this doctrine does not prevent one having a limited interest from defending and claiming to the extent of that interest. Here both the defense and claim for cross relief, and the decree itself, extended to the full fee simple, for the benefit of the heirs.
We regret, regardless of merit, to remand a case for further proceedings which has been a long time pending, but we cannot, without greater inconvenience in the future, allow the substantial principles of pleading to become con fused. Without the heirs we can pronounce no decree here, likely to serve the purposes of any of the litigants or to ■close litigation.
Reverse the decree and remand the cause with directions, to allow the defendant to make the heirs of Joseph Brogan parties complainant or defendant to the cross-bill, if he be-so advised; or to allow them to make themselves parties ;; or otherwise to dismiss the cross-bill and leave the defendant to defend alone, to the extent of protecting his interest as administrator. Let the costs of this court be borne equally by both parties. | [
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English, C. J.
At the September term, 1881, of the circuit court of Miller county, A. A. Anderson was indicted, under section 1494 Ga7itt’s Digest, for following the occupation of an auctioneer without having paid the special tax required by law. He pleaded not guilty, was tried at the March term, 1883, found guilty by a jury, fined two hundred dollars, refused a new trial, and brought error.
On the trial the state proved that the defendant followed the occupation of an auctioneer, and made sales as such, in the early part of the year, 1881, in Texarkana, Miller county.
Defendant produced and read in evidence ad auctioneer’s license issued to him by the county clerk, seventeenth September, 1880, for the term of six months, and a receipt for the special tax required by law; and proved by one Bush, who had made sales for him, and by A. A. Anderson, jr., his clerk, that he had made no sales in Miller county after the seventeenth March, 1881, when his license expired, but moved into Texas, and carried on the auction business there.
Had the evidence close here, defendant would have been entitled to an acquittal.
But the state by way of rebuttal, introduced in evidence the following paper, purporting to be a report made to the county clerk by defendant, twenty-fifth April, 1881, of auction sales:
“Statement of A. A. Anderson of goods sold at auction, 1881:
Jan. 23 to 26, Merchandise,.....................$200 00
“ 29, Merchandise,.......................... 69 40
Eeb. 5, Merchandise,.......................... 7 45
Mch, 22, One Mule,........................... 70 75
$347 65
This appears to have been sworn to by Anderson and filed with the clerk twenty-fifth April, 1881.
It appearing from this report that defendant had sold a mule after the expiration of his license, the jury found him guilty.
There is nothing on the face of the paper to prove that the mule was sold in Miller county, but the jury perhaps inferred that it was, from the fact that the report was made to the clerk of that county.
On the general assignment in the motion for a new trial, that the verdict was not warranted by the evidence, we cannot say that there was no evidence to warrant the verdict.
But there was a further assignment in the motion, that ■defendant was surprised by the introduction of the above report of sales on the trial, etc., and not prepared at the time to explain the reported date of the sale of the mule. And he made a sworn statement that he had discovered after the trial, on examination of his auction book, that the mule was entered as sold on the twelfth of March, the day on which it was in fact sold; that the report was made from that entry, but by a mere clerical error in making out the report the mule was put down as sold on the twenty-second of March instead of the twelfth,
He also filed the affidavit of A. A. Anderson, jr., his ■clerk, corroborating the above statement.
It is very well settled that motions for new trials, on the ground ■ of surprise, or newly discovered evidence, are-addressed to the sound legal discretion of the presiding judge, and it is only in cases- where there appears to have been an abuse of that discretion, or that injustice may have-been done, that this court interferes.
We fear that injustice may have been done in this case by the refusal of a new trial. If in fact the mule was sold on •the twelfth of March, and the sale so entered, and by a mere clerical error it' was reported as having been made on the twenty-second, it would be a hardship and injustice for plaintiff in error to have to pay the fine imposed on him by the verdict. We think it safer to let the truth of this-matter be inquired into and ascertained on another trial.
Eeversed and remanded for a new trial. | [
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RITA W. GRUBER, Judge.
| jSandy Thomas appeals the Miller County Circuit Court’s order awarding permanent custody of her children, S.B., R.B., and K.T., to their respective fathers. Thomas contends that the court erred by misstating the evidence and considering facts not in the appellate record. She also argues that the evidence does not support the court’s decision. We find no error and affirm the circuit court’s order.
I.
This case began on March 2, 2010, when the Arkansas Department of Human Services (DHS) removed T.T., then sixteen; K.T., then fourteen; and S.B. and R.B., two-year-old twins, from Thomas’s custody due to allegations that Thomas was inadequately supervising the children because of her “substance misuse” and “mental capabilities.” Thomas submitted Rto a drug test when the children were taken, which was positive for methamphetamine. DHS sought and obtained an emergency custody order on March 8, 2010. The court entered a probable cause order on March 10, 2010, placing T.T. and K.T. in the custody of their father, Paul Thomas, and continuing DHS custody of S.B. and R.B. while a home study was conducted on the home of their father, Edward Sportlee Bryant, in Texas.
The court entered an adjudication order on April 19, 2010, finding that the children were dependent-neglected and that the allegations in the petition for emergency custody were true and correct. The court found that return of the twins to Thomas’s custody was contrary to their welfare and that it was in the twins’ best interest to remain in DHS custody. The court continued the custody of T.T. and K.T. in their father. The court stated that the goal was reunification with a concurrent plan of relative placement. The court ordered Thomas to obtain a psychological evaluation, attend counseling if recommended, sign all medical releases, undergo a drug- and-alcohol assessment, successfully complete parenting classes, and submit to random drug screens. It also ordered the children’s respective fathers to submit to a hair-strand test and to successfully complete parenting classes. Thomas did not appeal from this order.
On June 14, 2010, the court placed S.B. and R.B. in the temporary custody of their father, Edward Sportlee Bryant. A caseworker report regarding the twins for July 2010 indicated that the children were clean, dressed appropriately, and comfortable in their ^environment. The caseworker also observed that both children appeared to speak more clearly and were easier to understand than she had observed in the previous months. The caseworker reported that she had supervised Thomas’s visitation with the twins on July 29, 2010, at the Texas mentor agency in Sulphur Springs, Texas, and that Thomas and her adult daughter both smelled of intense cigarette smoke at the visit. She also reported that S.B. called a worker “Mama” in the office where the visitation occurred. Following the visitation, Thomas called the office to investigate the worker that S.B. called “Mama,” suggesting that the worker knew the children outside of the office and intimating that she had a “relationship” with Mr. Bryant. The worker denied knowing the children and reminded Thomas that the office provided foster-care services and it was not unusual for children to call a female figure “mama.” Thomas then expressed her displeasure in the size of the visitation room. The Texas agency allowed two more visits because they had been prepaid, but did not allow Thomas to conduct her visits at the agency thereafter due to her behavior.
A caseworker report dated August 10, 2010, stated that the relationship between Mr. Thomas and K.T. appeared to be strong. The report also stated that Mr. Thomas had completed parenting classes, that both K.T. and Mr. Thomas said their communication had improved and that the home was stable and recommended that K.T. remain there.
A review order on September 8, 2010, ordered the children to remain in their fathers’ custody. The court found that Thomas had not completed intensive outpatient drug treatment and ordered her to complete this. In a review order dated December 10, 2010, the court left the children in their fathers’ custody. The court also found that Thomas had again |4not complied with the case plan, because she had not completed outpatient drug treatment. The court ordered her to successfully complete outpatient drug treatment, successfully complete counseling, submit to random drug screens, and cooperate with DHS.
On April 11, 2011, the court held a permanency-planning hearing, and it entered orders on August 31, 2011, awarding permanent custody of R.B. and S.B. to their father, Edward Sportlee Bryant, and awarding permanent custody of K.T. to his father, Paul Thomas. The court granted visitation to Thomas pursuant to the standard visitation schedule. The court found that return of the children to Thomas’s custody was contrary to their health, safety, and welfare and that continuation of custody with their respective fathers was in their best interest and necessary for their protection. The court also found that Thomas had failed to comply with the case plan by failing to complete outpatient drug treatment. The court relieved DHS from providing further services and closed the case.
In equity matters, such as juvenile proceedings, the standard of review on appeal is de novo, although we do not reverse unless the circuit court’s findings are clearly erroneous. Moiser v. Ark Dep’t of Human Servs., 95 Ark.App. 32, 34-35, 233 S.W.3d 172, 174 (2006). A find ing is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Stewart v. Ark Dep’t of Human Servs., 2011 Ark. App. 577, at 5, 2011 WL 4477858. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Chastain v. Chastain, 2012 Ark.App. 73, at 7, 388 S.W.3d 495. This deference is even greater in cases involving child custody, as a heavier burden is placed on the judge to utilize to the | ¡dullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id.
II.
On appeal, Thomas contends that the court erred by misstating the evidence and considering facts not in the appellate record. She also argues that the evidence does not support the court’s decision. This case was before the court from the initial probable cause hearing, through the adjudication hearing and numerous review hearings, and concluded with the permanency planning hearing. We reject appellant’s argument that the court could not consider the parties’ behavior and the evidence gathered in those hearings in making its decision to award permanent custody. The hearings in a dependency neglect case build on one another, and the findings of previous hearings are elements of subsequent hearings. Osborne v. Ark. Dep’t of Human Servs., 98 Ark.App. 129, 137, 252 S.W.Sd 138, 144 (2007).
Moreover, Thomas’s main concern involves the court’s consideration of the initial affidavit filed with the petition for emergency custody that contained the following allegations: “substance misuse and the mother’s mental capabilities,” Thomas’s positive drug test for methamphetamine on the date the children were removed, and Thomas’s hysterical behavior. She contends that a negative hair-follicle drug screen that she provided to the court three weeks later negated this affidavit. While we note that this test was neither ordered nor authorized by the court, supervised by DHS, or administered by anyone connected with this case, we hold that the truth of the initial dependency-neglect finding of the court is not before us. The court entered an order dated April 19, 2010, finding that the children were | fidependent-neglected and that the allegations in the petition for emergency custody were true and correct. Although this was a final, appealable order, Thomas did not appeal from it. She cannot now challenge the findings on which the order was based. Lewis v. Ark Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005). In any case, the circuit court stated in its letter to counsel setting forth the reasons for its decision to award permanent custody of the children to their fathers that it had decided to disregard the findings in the initial drug test and the hair-follicle test submitted by Thomas because of the contradictory results.
This is a dependency-neglect case, which arose because the children were removed from Thomas’s home by DHS. Thus, the court’s permanency placement plan was governed solely by the Juvenile Code. See Ark.Code Ann. §§ 9-27-334 to - 338 (Repl.2009 & Supp.2011). Under the Juvenile Code, the court is authorized to transfer custody to the non-offending parent if the court finds that it is in the best interest of the children. Id.
In this case, Thomas’s testimony revealed that neither of her teenage children, K.T. and T.T., attended school regularly in her care, and that she regularly signed excuses for their excessive absences. In fact, K.T. failed the eighth grade and missed so many school days that the school district had filed a FINS truancy petition before this dependency-neglect case began. Evidence also revealed that K.T. and his father have a strong bond and that, in his father’s custody, K.T. was attending school and doing well.
All of the testimony, including Thomas’s,, indicated that the twins, R.B. and S.B., were doing extremely well in their father’s care, had improved in speech and behavior, and were well cared for. Jennifer Frazier, who was the twins’ case manager for the Texas |7Pepartment of Family Protective Services, had been working with Mr. Bryant and the twins for a year at the time of the hearing. She testified that Mr. Bryant and the twins lived with Mr. Bryant’s father and stepmother in a very nice, clean, appropriate home in Wills Point, Texas. She said that the twins were developmental^ challenged when they came to live with Mr. Bryant and that he had been proactive in getting the children’s needs met. She said that she had visited the home at least once a month and observed them at school and in their daycare. She testified that they were discharged from their preschool program for children with developmental needs because they had “surpassed that.” She also testified that Mr. Bryant had obtained much-needed dental work for the twins, had seen to their other medical needs, and that both had begun wearing glasses. She said that the children had progressed “extraordinarily well” in Mr. Bryant’s care and opined that the placement was “a success story.”
Suzanne Pipkin, a licensed professional counselor and psychological examiner, testified that she had seen Thomas as a patient for eight sessions from July through September 2010. She said that she diagnosed Thomas as having a histrionic personality disorder. She explained this meant that a person had a tendency to be overly dramatic, overreact to situations, or exaggerate things. Ms. Pipkin testified that Thomas initially admitted to drug and alcohol use but not to addiction. Thomas also told Ms. Pipkin that she had suffered from anxiety and depression frequently throughout her life. Ms. Pipkin did not think that Thomas had made any progress in counseling because she continued to feel like a victim of DHS and the court system and failed to follow up on suggestions to deal with her anxiety and depression. Ms. IsPipkin testified that she discontinued counseling with Thomas because Thomas chronically missed appointments. While Ms. Pipkin admitted that she had never seen Thomas parent her children, she opined that Thomas’s personality type gave her some concern about Thomas’s emotional stability and its potential effect on a child’s development.
In its order, the court noted that it had considered the testimony, exhibits, statements of the parties and counsel, and the record in making its decision. Thomas disputes some of the statements made by the court in a letter to counsel, written a month before the court entered its order. The letter was not the court’s order, nor was it incorporated into the court’s order by reference. As with oral pronouncements from the bench, however, it does provide some explanation for the court’s decision. One issue in the letter that Thomas disputes is the court’s statement that Thomas’s disruptive behavior at the probable cause hearing was indicative of someone who was under the influence of drugs or suffered from some type of mental illness or condition. While she disputes the truth of this and other statements regarding her behavior, the evidence did demonstrate that she was banned from using a Texas mentor agency for visitations due to her behavior. She also disputes the court’s conclusion that she had a drug problem and explains that, because she had no drug problem, she failed to comply with the court’s order to complete outpatient drug treatment. These issues involve the court’s duty to judge the witnesses’ credibility. We give due deference to the circuit court in these matters. Chastain v. Chastain, 2012 Ark.App. 73, at 7, 388 S.W.3d 495. This deference is even greater in cases like this one that involve child custody, as a heavier burden is placed on the judge to utilize to the fullest extent his or her powers of perception in devaluating the witnesses, their testimony, and the best interest of the children. Id. After reviewing the evidence in this case, we hold that the circuit court’s finding that it was in the best interest of the children to be placed in the permanent custody of their fathers is not clearly erroneous. Accordingly, we affirm its orders.
Affirmed.
HART and GLOVER, JJ., agree.
. T.T. reached her majority during the pen-dency of this case and is no longer subject to the court's jurisdiction.
. It appears from testimony at the hearing that, in January 2010, Mr. Bryant moved out of the home he, Thomas, and the children were living in and took the children with him to live with his parents in Texas. | [
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Mehaffy, J.
The appellee brought suit against the appellants and alleged that Grady Russell, appellee’s intestate, before his death rented land from the appellants, and alleged that the fence inclosing the land rented was bad, and that the- crop was destroyed by cattle.
Before the suit was brought, Grady Russell died, and W. T. Matlock was appointed administrator of the estate. The suit was for $100 damages. There was a jury trial and verdict and judgment for $70. To reverse this judgment, this appeal is prosecuted.
There is no dispute about appellee’s intestate having rented the land, and no dispute about the crop having been destroyed. Appellee was permitted to prove that it was the custom in that locality for the landlord to keep up the fence around a farm when it was rented. There is, however, no evidence tending to show an agreement on the part of the appellants to make repairs.
This ease is ruled by the case of Rundell v. Rogers, 144 Ark. 293, 222 S. W. 19. This court said in that case:
“ ‘Unless a landlord agrees with his tenant to repair leased premises, he can not, in the absence of a statute, be compelled to do so,’ is a rule of law well established in this State and elsewhere. * * !* A local custom can not be shown in order to render the landlord liable for failure to make repairs in contravention of the above well-established rule.”
The evidence as to the local custom was therefore incompetent, and the court erred in permitting it. If the evidence showed that the landlord agreed to keep' the fence in repair, or if the evidence showed that the contract was made between the parties that the landlord should keep up the repairs, or that they should be governed by the local custom, then evidence of the custom would be admissible.
For the error indicated, the judgment is reversed, . and the cause remanded for a new trial. | [
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Butler, J.
The appellant, Bogers Trotter, was indicted, tried and convicted for the crime of accessory before the fact of murder in the first degree, and his punishment fixed at life imprisonment in the State penitentiary. The indictment in effect alleged that on the 10th day of .June, 1933, he entered into a conspiracy with Ed Kleier and Bill Bailey to rob one J. D. Fowler who was then living in Booneville in the Southern District of Logan County, Arkansas; that, while acting in furtherance of this conspiracy and attempting to execute its purpose, Ed Kleier and Bill Bailey murdered Fowler by shooting him; that the said Bogers Trotter was not present when Fowler was murdered, but had advised, encouraged, abetted and assisted the said Kleier and Bailey in the commission of the murder.
In apt time the appellant filed a motion for change of venue in the manner and form prescribed by statute, the ground set up being “that the minds of the people of both the judicial districts of Logan County are so prejudiced against him that he cannot receive a fair and impartial trial in either district of said county. ’ ’ There were three affiants to the supporting affidavit who were examined in open court touching their credibility. I. W. Young, one of them, testified that he was familiar with the sentiment of the people in regard to the charge against Trotter, and that he did not believe that Trotter could receive a fair trial in the county; that there are twenty-four townships in the county, the most of which he had journeyed through on a mule buying trip and had heard the case discussed; that in the course of his business of buying and selling mules he dealt with people from all over the county, and based his opinion upon the discussions he had heard among these people. Another affiant, Jack Corley, was foreman of C. W. A. work and, as such, employed men from all over the northern district of the county, and had talked with numbers of persons from the southern district. He testified that he worked a crew of 74 men at a time which was frequently changed and consisted of men from different parts of the county; that he heard these crews talking about the case and others also, and, from their conversations relative to it, he based his opinion that Trotter would not be able to secure a fair and impartial trial in the county because of the prejudice against him.
U. C. May was called in support of the motion and testified that he was one of the attorneys for the defendant, and as such had ascertained the condition of the minds of the people of Logan County with reference to Rogers Trotter; that he had inquired from each township except one and the minds of the inhabitants were made, up one way or the other as to the guilt or innocence of Trotter.
The court overruled the motion, to which ruling timely objections and exceptions were saved.
Previous to the trial of the appellant, Kleier had been tried and convicted of the murder of Fowler which occurred shortly after dark on the evening of June 10, 1933. Fowler was a man eighty-five years of age, and no one lived with him except his housekeeper. On the evening he was killed he was sitting on his back porch which was screened with wire mesh. A man broke through this screen and commanded Fowler to put up his hands. As Fowler arose from his chair, the intruder fired two shots — one inflicting the fatal wound and the other going into the roof of the porch. The housekeeper, who was present, stated that another person besides the actual assailant stood on the outside.
There is no question raised as to the sufficiency of the evidence tending to show that Kleier was the actual murderer, and no contention is made on this appeal that Kleier did not commit the crime. The two grounds most strongly urged for reversal are: (1) error of the court in overruling the motion for change of venue, and (2) lack of sufficient evidence to support the jury’s verdict.
"We are of the opinion that the. trial court should have granted the defendant a change of venue. The tes timony of the supporting witnesses to the motion discloses that they had unusual opportunity for discovering the sentiment of the people throughout the county with regard to the prejudice existing; that they had heard discussions of the case by people from practically every portion of the county, and on this they based their conclusion that defendant could not secure a fair and impartial trial in Logan County.
Many cases relating to this subject are cited in the recent case of Adams v. State, 179 Ark. 1047, 20 S. W. (2d) 130, cited by counsel for the appellee. In that case the settled rule is declared that this court will not overrule the judgment of a trial court in denying an application for change of venue unless it appears that the ruling of the lower court is such as to constitute the denial of a substantial right. That case refers to the examination of the supporting affiants and the purpose for the same — namely, to ascertain the means by which the condition of the minds of the inhabitants became known to the affiants, and the. extent of the information so obtained. If it should appear that the opportunity, for knowing, and the knowledge of the condition of the minds of the inhabitants was such as not to warrant the statements made in the affidavit, then the affiants would be deemed not to be credible persons within the meaning of the statute. In the instant case counsel urge that the examination shows the information of the affiants to be limited and obtained through limited sources. We do not so view their testimony, but, on the contrary, it appears as stated that the sources of information were wide, and that the conclusion of the affiants was accurate seems to us to be shown from the evidence upon which the verdict was based.
The evidence adduced by the State most strongly tending to support the verdict is collected in appellee’s brief, the testimony of each witness being summarized. One witness, Jimmy O’Neal, who, the evidence conclusively proves, was mentally deficient, testified that he had been living in Trotter’s home in Scott County for several days prior to the killing; that Trotter told him ‘ ‘ about a job about eighteen miles from where he lived;” that Kleier had also been living at Trotter’s home for several days, and that on the morning after the killing witness saw Kleier in the barn changing his clothes and cleaning a gun in the garage, then going into the house where he shaved his mustache and trimmed his eyebrows; that besides the gun Kleier had a blackjack, flashlight, pair of gloves, a piece of rubber hose and two tire tools.
Frank Nichols and Mrs. James testified that on May 29 they saw Trotter in company with Kleier and Herman Mitchell (also charged with the crime of this murder) at Nichols’ place, of business in Scott County. Another witness, Barney Quinn, stated that about a week or ten days before Fowler was killed Trotter and Kleier came to field about a mile and a half from Fowler’s home where Herman Mitchell was working. Harold Jones, another witness, stated that he saw a man he thought was Trotter in company with a man answering Kleier’s description in the- vicinity of Booneville on the day of the killing, but that he had not seen Trotter in two years and so was not positive. Another witness stated that he had seen Kleier in company with Trotter or Jimmy Walton, Trotter’s son-in-law, several times, and that the day Fowler was killed Trotter drove into his filling station from the direction of Waldron in Scott County.
Allan Hart testified that he saw a car resembling the Chevrolet coupe owned by Trotter pass his place of business in the afternoon before the. killing* going in the direction of Booneville, and there appeared to be three persons in the car.
Dr. Ed Wineman, who lived in Booneville, a half mile from the Fowler home, testified that he heard one shot in the early part of the night and noticed a car passing; that after he went to bed — or about the time he was in the act of doing so — a car passed going at a terrific rate of speed west on West Thomas Street; that in going to Fowler’s home one travels on West Thomas Street, turns south, then west; that the first time a car passed his house was before the shooting. It was after dark, but he observed that it had a bright radiator, the side lights were bright, and it had a rumble seat; that he was shown the car which had been taken in custody by the officers, and it resembled the one he saw passing his house at a high rate of speed. Witness stated that a car passed his house afterwards four or five times.
In addition to this testimony there are these circumstances; it is in evidence that about two weeks before Fowler was killed Kleier and his' wife, apparent strangers in that community, came to Trotter’s home and remained until Kleier was arrested on the morning after Fowler was killed. From statements made by Jimmy O’Neal the officers suspected Kleier and early on the morning after the killing went to Trotter’s home and asked Trotter to call Kleier to come outside. Kleier appeared in response to Trotter’s call, was arrested and taken to jail. Among Kleier’s belongings a pistol was discovered which he was supposed to have used in committing the murder. Shortly after Kleier’s arrest, Trotter learned that he was suspected of some complicity in the guilt of Kleier and left the country, going from place to place for several months, but finally returned and surrendered to the officers. His friends in the meanwhile had made arrangement for his bond.
The inference justly deducible from the testimony quoted and the attendant circumstances proved, when given their greatest weight, falls short in probative value of that degree of evidence necessary to connect Trotter with the commission of the crime. O’Neal did not attempt to explain the nature of the job which Trotter wanted him to undertake, and the association of Trotter with Kleier and his movements during the days immediately preceding the killing and on that day do not reasonably establish more than a suspicion of Trotter’s connivance with Kleier in his felonious purpose.
The judgment of the trial court is reversed, and the cause remanded with directions to grant the motion for change of venue, and for such further proceedings as may be deemed advisable. | [
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Baker, J.
These two cases were consolidated for the purpose of trial, resulting in judgments for the plaintiff, Norma Jean Gwilliams, a minor, by Eva Gwilliams, her next friend, and the plaintiff, Bobby Joyce Gwilliams, a minor, by R. L. Gwilliams, her next friend, and from these judgments in favor of plaintiffs, defendant, the Great Atlantic & Pacific Tea Company has appealed. A very short statement of the pleadings will suffice in these cases, as the facts will be set forth somewhat at length. The reason for so doing is that the sole question to be determined in each case is whether the facts, as proved, are such as to justify the judgments rendered.
The complaint in each case alleges that the servants and employees in charge of the retail grocery store at Hope sold to R. T. Gwilliams, the grandfather of the two children, some cheese; that at the time of the purchase, Gwilliams asked for a pound of cheese that would be fresh, wholesome and nutritious, when in fact such cheese was, at the time of the sale, spoiled, contaminated and poison, and wholly unfit for human consumption, and that the servants and employees knew at the time of the sale of the cheese, or should have known, in the exercise of ordinary care that said cheese was spoiled, contaminated and unfit for human consumption; that it was not fresh, wholesome and nutritious as represented; that the appellant failed to exercise ordinary care in properly keeping and preserving the cheese.
That the two appellees, who ate some of the cheese, suffered from ptomaine poisoning for weeks, and that the health of each of them was permanently impaired, etc.
The evidence offered was to the effect that R. T. Gwilliams, his wife, his daughter, Eva Gwilliams, and her daughter, Norma Jean Gwilliams, about sixteen months old, drove from their home, about five miles, to Hope, at which place just before leaving for their home, R. T. Gwilliams purchased from the appellant a pound of cheese; that Mr. Gwilliams asked Mr. Daniels, who sold him the cheese, if he had some good cheese, and that the latter replied, “Yes, I have some good cheese”; that he then told Mr. Daniels to cut off a pound, which was wrapped by Daniels in paper; that Daniels cut the cheese with a butcher knife; that the purchase was made about 12 o ’clock on Monday. Gwilliams and his family ate some of the cheese on the road to their home. Norma Jean Gwilliams, about sixteen months old, was given some of the cheese. After reaching the home Bobby Joyce Gwilliams, another grandchild, about three years old, who lived a short distance away, came to the house of the grandfather about 3 o’clock in the afternoon, and the two children ate what was then left of the cheese; that about 6 o’clock in the afternoon Bobby Joyce Gwilliams was taken ill; was picked up by the grandmother, and was apparently very sick. Her father came for her and took her home fifteen or twenty minutes later. The other child, Norma Jean Gwilliams, was taken ill, and just as they were about to eat supper she commenced to vomit, as had the older child, Bobby Joyce. An examination of the vomit disclosed undigested portions or small particles of the cheese. Dr. Hilton was sent for and came about' two hours later and treated the children. They soon recovered from the violence of the attack. The wife and daughter ate some of the cheese and complained that it made their throats sore. The children have not been well since they ate the cheese, have not grown, although it has been a year since the cheese was eaten by them. Prior to that time they were healthy and strong. The health of both has been impaired. Gwilliams further testified on cross-examination that he lived about five and one-lialf miles from Hope; that he got to Hope about 10 o ’clock and went in a wagon; that they had breakfast that morning before they left home; doesn’t remember what the baby, Norma Jean, had for breakfast; was in Hope about two hours before the purchase of the cheese. His wife had bought some crackers, only ate them when he bought the cheese. He saw the cheese and paid little attention to it. It looked all right. Didn’t know about it being fresh because they didn’t examine it. The piece of cheese was cut from a larger piece weighing five or six pounds. At the time the cheese was given to the baby, he didn’t suppose he paid any attention to it, he was driving and didn’t look around. His wife ate a little bit, and he ate a little bit himself as they were going home; that he ate some crackers; that when he got home he had dinner, didn’t recollect what they had; didn’t think the baby ate that day; that it was still nursing and ate very little at any time; that Bobby Joyce had eaten dinner at home before she came there; it was about 3 o ’clock when the children ate the cheese at witness’ home. They were on the back gallery or in the kitchen. Perhaps they went out in the yard before they ate it. They were given what they wanted of it; didn’t know how much Norma Jean ate, but saw her eat it, but she had a very little bit on the way home from Hope; wasn’t certain whether or not she ate dinner.
Mrs. Etta Gwilliams testified that she was the grandmother of the children, and also testified substantially to the same facts that her husband had related, stating, however, somewhat more definitely the fact that the small child, Norma Jean, ate a very small portion of the cheese on the way home, and that they arrived there about 2:30 or 3 o’clock; that the cheese was eaten because of the fact that they knew they would get hungry before they got home; that Bobby Joyce and Norma Jean both ate of the cheese after they reached home. The witness cut a piece or two and divided it for the children, and they ate it. There was not a great deal left when they got home. She' further testified that they did not have crackers, but she had bought two packages of light bread rolls or biscuits; that Norma Jean ate a little of this bread before they reached home; that she unwrapped the cheese, and didn’t see anything wrong with it. If she had, she would not have eaten it. It looked nice and tasted all right, though she said she paid but little attention to it; that at the time she divided the cheese for the children, she unwrapped it, and there was not a great deal of it left; that she split a big piece of cheese in two and gave a piece to each child. The piece given to the little baby was not very large.- Bobby Joyce did not eat dinner at their house, because she had eaten her dinner at home. The witness testified that she herself had eaten somewhat more of the cheese than the others, and at about 3 o’clock her mouth felt like it was scalded, and that she got sick at her stomach.
Eva Gwilliams testified that she was the mother of Norma Jean, and that they left Hope between 11 and 12' o’clock, or about noon; that her father had bought the cheese, and they all ate of the cheese as they were going home; that they made the trip in a wagon. She said they began tasting the cheese right after they got out of town; that she fed her baby, but didn’t feed it very much, just a little piece. It didn’t eat very much. She also said that they did not eat when they got home, or until they fixed supper, but that the children ate some of the cheese. She testified further that she was made sick; that her throat got sore, and that she ate only a small piece of the cheese. Oh the trip home they didn’t have any knife to cut the cheese with, but broke it off with their fingers and ate it; that the cheese looked all right and tasted like other cheese; that she never ate anything but nice fresh cheese, and that this cheese looked nice and fresh; that she wouldn’t have given it to the baby if it hadn’t looked that way; that they gave to the babies three crackers apiece, and they ate the crackers with the cheese; that she and her mother got sick about the same time.
Dr. Hilton, the physician who was called to treat the children, testified that he found the children to be nauseated and vomiting and suffering from dizziness, that they had turned purple and looked and acted like they had symptoms of the cramps; that after the little girl had vomited she would drop off in a comatose or sleepy condition; that her heart was irregular; that he didn’t make a chemical examination of the substances seen by him which the children had vomited; that all he saw was film or phlegm with little pieces of cheese; that the children’s mouths and throats were corroded; that this condition was attributable to poison; that it was his opinion that the cause of this corroded condition was ptomaine poison caused from the cheese, if-that was all that was eaten.
Dr. Martindale also testified that he treated the children; that they had been taken sick, and some days later they were brought to his office; that he examined them and found that they had sore mouths and tongues; that their throats were irritated and tender, gums swollen and throat very sore; stomachs bloated. It was his opinion that ptomaine poison caused the condition. He also said that cheese was not the best food for very young people, but, if good, cheese was not apt to set up irritation of the stomach, such as these children suffered.
Dr. Joe Ellis Tyson, on behalf of the appellant, testified that young people are unable to assimilate cheese; that the digestive secretions are not able to break it down; that this fact brings on the vomiting and symptoms similar to those from which the children suffered, except that he does not say that this would cause the corroded condition of the mouth and gums, as testified by Dr. Hilton. He testified further that he would not necessarily attribute a condition of that kind to anything being wrong with the cheese. He did testify that ptomaine poison is due to the intake of decomposed food protein. If some of it should get on cheese, it would poison.
Mr. Daniels testified that he was with the Atlantic & Pacific Company, and that he remembered the occasion of selling Mr. Gwilliamsi cheese, about the 17th of April. His attention was first called to it four or five days later when Mr. Gwilliams made complaint to him about it. This cheese was cut from a hoop of the Wisconsin Daisy Cheese. He had been selling this cheese ever since he had been with the company, about three years. They sold about three times as much of that as they did the other varieties of cheese; that the amount, however, would vary with the season of the year. Ordinarily about the spring of the year they would handle about four hoops a week. This was sent to their place from Dallas by commercial track. The cheese came in a wooden hoop or box; that the cake of cheese had a covering on it. There was a very thin piece of wood which was on the top and bottom inside the box, then there was cheese cloth. The cake of cheese was entirely inclosed with the cloth; that the particular hoop from which Mr. Gwilliams bought his cheese came to the store Thursday before the sale, which occurred on Monday following. When cheese was received, it first went into the big cooler, and then to the serving counter or display case; that the display case had several doors to it, with packing around the doors to hold the refrigeration; that the temperature maintained in it, and in the big box was from 34 to 36, or 37 degrees. They kept meat in the display case. Some of it was cut up ready to serve. It was kept both ways. They kept beef, pork and cured meat and cold meat, and on week-ends they kept fish in it; that he got this hoop of cheese out of the big box and commenced to sell off of it on Monday. It had been kept in the other box until Monday. He took the cheese out of the hoop and cut it half in two, and then quartered it, and usually put three pieces back in the big cooler, or the big box, and a quarter in the display counter. He had had experience with cheese, and this was all right, as far as he could tell. It appeared to be in proper condition. He thought he sold to Mr. Gwilliams from the first quarter placed in the counter. He looked at the piece he cut off. It looked and appeared to be all right, did not see anything wrong with it. It looked like the cheese he sold every day. All of it looks very much alike. He kept the knives and display case, and other places clean. On Monday the big box, the large cooler box, was washed, hooks inside of the box were washed each Monday. The rest of the market was washed from day to day through the week. The big box was washed one day a week. The display counter was washed on Saturday night after closing business, and at such times through the week as was found neces sary; thought he had always had the reputation of keeping the place clean. They considered it the best part of the business, and had comments on the cleanliness of the market; tried at all times to keep the market clean; that they did not keep any putrefied or spoiled meat in the display case, or any other place. As to knives, they were washed, towels were kept in the market to keep the knives clean; that he cut this piece of cheese for Mr. Gwilliams with a knife, and, going by their habit in things like that, they usually wipe the knife whenever they get ready to use it; that he had not been cutting any spoiled meat with that knife, or cutting anything that was putrid in any way; tried to keep their hands and persons perfectly clean, and when he handled this cheese his hands were clean. He continued to sell that whole block of cheese; sold the whole hoop to his regular customers, and he had quite a few customers there in the city of Hope and surrounding' country. He had no complaint about the cheese, except what Mr. Gwilliams was alleged to have made.
On cross-examination, he repeated much he had already stated, and in addition some other facts. He had cut some meat with that knife. He put the cheese on the meat block, and cut the cheese on the meat block, and put it in the case; kept a light on the inside of the case; that he kept steak in there, and fish on the week-end; they kept practically everything in there, except ground meat. Perhaps would not have remembered the particular sale if Mr. Gwilliams had not come back and called his attention to it. The cheese had been shipped to Hope by commercial truck covered by tarpaulin with no refrigeration.
The completeness of this statement as to all detail is made necessary for the reason that these two suits were prosecuted upon the theory that the appellant had been guilty of negligence, by reason of which the injuries or illness of the children followed.
The appellant earnestly contended that the appellees in these cases have failed to discharge the burden placed upon them to prove negligence resulting in the alleged injuries. No question is raised as to the com petency of any evidence or as to any error in the instructions, except that appellant contends that the court should have directed the verdict for the appellant.
For the purpose of this opinion we treat the facts as being sufficient to show that the children suffered from ptomaine poison, occasioned by active putrefactive agencies. The condition of the children was serious. According to the evidence, a very small bit of this poison may become very violent and active, quickly impairing the health, if not endangering the life, of the unfortunate victim who happens to eat food contaminated by it.
The briefs have been carefully studied, other investigation has been made of authorities. We agree with counsel for appellees as to the correct rule announced in the ease of Heinemann v. Barfield, 136 Ark. 456, 207 S. W. 58, as follows: “The duty which a retail seller of food for immediate consumption owes to his customers is succinctly and correctly stated in Ruling Case Law, as follows: ‘Persons who engage in the business of furnishing food for consumption by man are bound to exercise care and prudence respecting the fitness of the article furnished, and they may be held liable in damages if, by reason of any negligence on their part, corrupt or unwholesome provisions are sold and persons are made ill thereby.’ 11 R. O. L. 1118, and cases cited in note. Actionable negligence in such cases is the failure to exercise such care as a man of ordinary prudence would exercise under the same circumstances to prevent injury and damage to his customers by the sale of articles which he knows are bought by them for immediate use as food.”
The theory now is that, in the handling or sale of standard packaged goods, inspection is not required, expected, or anticipated of the dealer. Such inspections could not be made, in most instances without destroying or damaging package protective coverings.
In the case of Coca-Cola Bottling Co. v. Swilling, 186 Ark. 1149, 1153, 57 S. W. (2d) 1029, this court said: “ ‘The retailer owes to the consumer the duty to supply goods packed by reliable manufacturers, and such as are without imperfections that may be discovered by an exercise of the care, skill and experience of dealers in such prod ucts generally. This is the measure of the retailer’s duty, and, if he has discharged it, he should not be mulcted in damages because injuries may be produced by unwholesomeness of the goods. As to hidden imperfections, the consumer must be deemed to have relied on the care of the packer or manufacturer or the warranty which is held to be implied by the latter. ’ The annotated cases cited in the notes to the text quoted appear to sustain the text.”
The retail dealer is not a guarantor, and this case is not founded upon that theory, but he is charged with the exercise of ordinary care to sell sound and wholesome products, meaning that degree of care necessary for the protection of customers against impurities or contamination that might ordinarily be discoverable by any usual or ordinary tests. This cannot mean, however, that the retail dealer must make or apply such tests as would in every case operate to insure absolute safety. Hidden or concealed imperfections or contaminations might require microscopical tests or chemical analysis for their discovery. Under present conditions, such requirement would prove so burdensome that many articles in ordinary use could not be handled by the ordinary dealer, and consumers would be denied the right to buy such products. In other words, such a test, if applied under the ordinary conditions, would be equal to requiring the dealer to become an insurer of the absolute perfection of the commodity sold. The test should not be higher than that commonly or usually practiced by careful dealers under the same conditions and circumstances, which is at least as high as the consumer expects, or has the right to expect of his groceryman or food dealer.
The essential facts in this case are not in dispute. Daniels remembers that Mr. Gwilliams called upon him a few days after the cheese had been sold to him, and made complaint of its unsoundness or unwholesomeness, and this called to his mind the incident of the purchase, and he is practically sure that this was the first piece cut by him from the quarter that he had put in the display counter. He says that he examined it at the time he cut it; that there was nothing wrong with it that was ap parent. No doubt he would not have hesitated to send this particular cut of cheese to his own home for consumption by his own family.
It is urged, however, that he cut it upon the meat block where meats were cut, and where fish was probably sometimes cut, and that he used a knife which was sometimes used, or which may have at all times been used, to cut meat; that the contamination might have come from the contact of the cheese with the block, or its contact with the knife. That could be true, but this is within the realm of speculation and conjecture. This contamination might also have come from the paper with which it was wrapped. It is also just as probable that it may have come from contact with the hands of those who later carried it, opened it while upon the road home. Mrs. Grwilliams and her daughter both handled the cheese. They could observe its quality, its purity, its apparent freedom from contamination, and the matter need not be argued that, if it had had any appearance of being contaminated or unwholesome, these good people would not have given this food to the children who suffered from it. They had gone to town in a wagon, had no doubt used their hands in climbing in and out of the wagon. Childrens hands are frequently not clean when not at home under the attentive care of those charged with the duty of their protection, and still, as a matter of speculation or conjecture, it may be that the children’s hands were not wholly free from contaminating- conditions. All of these matters are' set forth, not as being true conditions, which prevailed, but as tending to show the danger of speculation in ordeb to determine, without evidence, the means whereby the cheese had become unsound or unwholesome for human food.
It is argued in the brief of appellees that the cheese had been shipped by commercial truck from Texarkana to Hope, that it may have thus become contaminated. If so, and this fact of such contamination was not discoverable by the exercise of ordinary care, then the negligence was that of another party and not of the appellant here. To hold otherwise would be to hold the appellant as an insurer of the wholesome condition of the food. It will be remembered that tbe appellant was a dealer and not a manufactnrer; that it had handled the same brand of cheese for a long period, and that the cheese had always been found to be wholesome and sound, and that no other part of this same hoop of cheese had been found to be unsound, and the fact that a small particle thereof may have been unwholesome, when that condition was not discoverable in the exercise of ordinary care, would be insufficient to justify a determination by us that plaintiffs need not prove negligence either directly or inferentially by circumstances. Daniel’s statement was not inconsistent or in conflict with other testimony; it was not unbelievable or unreasonable.
Daniel says that the market was kept clean. The knives were clean, and the}*- kept no putrid meats. They kept their hands and persons clean. 'Should he have been believed? Fleming v. L. R. Chamber of Commerce, 137 Ark. 615, 206 S. W. 895; Runyan v. Goodrum, 147 Ark. 481, 228 S. W. 397; Toll v. Lewis, 136 Ark. 318, 206 S. W. 442.
Authorities in cases involving negligence of vendors, as distinguished from the implied warranty, are not lacking. This court seems to have followed in all decided cases the weight of these authorities. There must be proof tending to show the negligence alleged before there is a recovery. Negligence, like fraud, is not presumed, but it must be proved, or, at least, facts must be shown from which it may be inferred.
The case of National Cotton Oil Co. v. Young, 74 Ark. 144, 85 S. W. 92, is in point. The facts showed that Young bought a load of cottonseed hulls and a sack of cottonseed meal from the oil company, and he himself loaded the hulls in the wagon with a large fork, direct from the factory. He mixed the meal with the hulls, and fed the mixture to his cows. The cows died shortly afterward. An examination of one of them disclosed nails, pieces of wire and other foreign substances in the throat and stomach. The meal and hulls were examined and similar metallic substances were found in both. Young sued the oil company, relying both upon the implied warranty of the feedstuff, and upon negligence. The question of implied warranty was eliminated by a prior decision of this court, so the ease went to the jury upon the question of negligence.
The jury returned a verdict as follows: “We, the jury, find for the plaintiff, J. E. Young, the sum of one hundred dollars, and believe the foreign matter got into the feed by accident. ’7 This finding was upon evidence adduced by the oil company tending to show that it was impossible for such foreign substances, as found in the feed, to have gotten into it in the process of manufacture, and necessarily that such substance got into the meal and hulls after they were manufactured. The court held that negligence was not established, though some proof was offered from which the jury might have inferred that the foreign matter got into the feedstuff through negligence of the employees of the oil company. The point is that the unfit condition of the feedstuff for consumption by the cattle did not establish negligence.
In a much more recent case, that of Colyar v. Little Rock Bottling Works, 114 Ark. 140, 146, 169 S. W. 810, this court distinguished the case under consideration from the case of O’Neill v. James, 138 Mich. 567, though both cases are based upon the fact that a bottle of soda water or coca-cola exploded by reason of an overcharge of gas, doing injury to the one handling the bottle.
In the case of O’Neill v. James, the proof offered did not show knowledge on the part of the defendant that the bottle which exploded had been improperly charged with gas, while in the case under consideration, proof was offered that the producer or manufacturer had information of the fact that bottles frequently exploded when handled, and he knew, or should have known, of the unsafe condition of the overcharged bottle. In the case of O’Neill v. James, the proof of negligence was the explosion of the bottle. The judgment for plaintiff was reversed. In the Oolyar case it was held that with the evidence, in addition to the fact of the explosion, the case should have gone to the jury. It is argued in appellees’ brief, but not found in the abstract of evidence, that the meat block was contaminated with soured and putrid particles of meat, etc. If this were evidentiary, and not merely conjectural, a different case would be presented.
In the case of Heinemann v. Barfield, 136 Ark. 456, 207 S. W. 58, it was found that flour sold to the plaintiff contained arsenic, and it is also shown that an employee of the appellant had a short time before this sale bought “rough on rats” from a neighboring druggist which, according to the druggist’s statement, contained fifteen or twenty per cent, arsenic, and this had been put out near or around the flour bin, and that the appellant had burned some flour, saying that “the chances are some one else might get poisoned from this same flour.”
In the case of Drury v. Armour & Company, 140 Ark. 371, 216 S. W. 40, and the same case reported again in 146 Ark. 310, 226 S. W. 133, there was proof in regard to the sausage sold that there was a green, slimy piece, as big as one’s thumb, which was wet and soggy, and gave out a bad odor, and that it smelled like it was rotten. This was a condition that should have been discovered in the exercise of ordinary care.
In the case of Safeway Stores, Inc., v. Ingram, 185 Ark. 1175, 51 S. W. (2d) 985, Ingram was made sick by eating a piece of cheese loaf, purchased from appellant. The proof was that this loaf had a tainted taste; that one could tell from the looks of it that it was poison. It was also proved that it had mold upon it, and had the odor of spoiled meat.
In the research we have made we have not been able to find a case, nor have appellees cited one, decided by this court, wherein the injuries suffered were held to be sufficient proof of negligence to justify a recovery. Such a holding would seem to be against the weight of authority.
It follows therefore that both cases should be reversed, and remanded.
It is so ordered. | [
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Mehaffy, J.
The appellees brought suit in the Garland Circuit Court against appellants, alleging that they were the owners of the property described in the complaint, and that on July 19, 1932, the Arkansas Trust Company, one of the appellees, rented said real estate to the appellants at a rental price of $40 per month, payable monthly in advance; that the appellants agreed on said date to lease the property and to pay $40 a month rent.
The appellants filed a demurrer, which was overruled, and then filed answer denying all the material allegations in the complaint, and alleged that the Arkansas Trust Company was never at any time in the actual and peaceable or exclusive possession of the property described in the complaint, nor any part of said property; and appellants specifically deny that the other appellees were at any time in the actual, peaceable or exclusive possession of said property. They deny that they are indebted to appellees, Matthews, in any sum. They specifically deny that the relation of landlord and tenant has ever existed between appellees or either of them, and appellants or either of them. They allege that they are the owners of the property described and every part of it, and that they have had more than three years uninterrupted possession of the same and every part of the property, immediately preceding the filing of the complaint.
The undisputed evidence shows that the appellants were indebted to the Arkansas Trust Company in the sum of $3,500, and that the property here involved was mortgaged to the Arkansas Trust Company to secure the payment of this debt. The debt was past due, and the officers of the bank told appellants they would have to do something about collecting the debt. Finally appellants were told that proceedings to foreclose would be begun. A decree of foreclosure was entered, the property sold under said decree, the Arkansas Trust Company became the purchaser, and a commissioner’s deed was made to it. The appellants contend, however, that the officers of the bank agreed to take care of appellants and look after their interests, and that for that reason this suit cannot be maintained, because they say that the bank bought the property at the foreclosure sale for the benefit of the appellants.
There is no claim that there was any fraud practiced in obtaining the decree; in Tact, the undisputed proof shows that appellants were notified when the decree was entered, and were notified when the bank obtained the Commissioner’s deed.
If there were any agreements or promises made with reference to the foreclosure suit that would in any way affect the foreclosure suit or the deed, this would have to be corrected in the chancery court. As we have already said, there is no claim that any fraud was practiced.
At the time of the foreclosure and sale of the property, the debt, with interest, was more than $4,300. The evidence on the part of the appellees is to the effect that after the bank had received the deed, it made an agreement with the appellants, by which it rented to appellants the property described, for the sum of $40 per month, payable in advance, and that appellants agreed to pay this amount of rent.
Appellants’ testimony on this issue is to the effect that they did not rent the property, but that they agreed to pay $40 a month interest, and intended to pay the entire debt. However, there never was but one payment made, and it was about $42.
The sole question therefore for our determination is, whether the relation of landlord and tenant existed, and this was a question of fact.
The appellants contend that the court erred in permitting the appellees to introduce in evidence the Commissioner’s deed, and quoted: “Title not being involved in the action of forcible entry and detainer, it is the general rule that no evidence can be introduced pertaining to title.”
The above quotation is from Encyclopedia of Evidence, vol. 5, 782, and as supporting the text, several Arkansas cases are cited.
Section 4857 of Crawford & Moses’ Digest is as follows: “In trials under the provisions of this act, the title to the premises in question shall not be adjudicated upon or given in evidence, except to show the right to the possession, and the extent thereof.”
The only purpose therefore for which the Commissioner’s deed could have been introduced, was to show the right to the possession and the extent thereof. It was, however, competent for this purpose. Appellants had owned this property'- for a long Avhile, and appellees had foreclosed a mortgage and purchased the property at the foreclosure sale, and a Commissioner’s deed was made. It was necessary in this case to introduce this deed to shoAV the right of possession.
“While deeds cannot be introduced as evidence of title, they are sometimes admitted as proof of the right of possession.” Encyc. of Evidence, vol. 5, 786.
The Commissioner’s deed Avas not introduced for the purpose of showing title, but only for the purpose of showing the right to possession, and was proper for that purpose.
It is next contended by the appellants that the decision of the court is contrary to law because “the action of forcible entry and unlawful detainer can be sustained only by proof of an actual possession of the premises sued for, held by the plaintiff prior to the unlawful entry made by the defendant.”
Of course, there would not have to be an unlawful entry. The statute provides that every person who shall willfully hold over any lands, tenements or possessions without right, or a person who may peaceably and lawfully obtain possession and hold same willfully and unlawfully, etc.
The appellants are correct in their contention that the relation of landlord and tenant must have existed, and on this question the evidence is in conflict. After the purchase of the property by appellees, the evidence on the part of the appellees shows that they entered into a contract with appellants, by which they rented the property to appellants, and that appellants agreed to pay the rent, and thereby became tenants of the appellees. On the other hand, it is contended that the appellants never did agree to rent or to become the tenants of appellees, but they agreed to pay $40 a month interest. This is really the sole question in the case.
A verdict supported by substantial evidence will not be set aside on appeal, as the Supreme Court does not pass on the credibility of witnesses or the weight of the testimony. Home Sewing Machine Co. v. Westmoreland, 183 Ark. 769, 38 S. W. (2d) 314; Lofton v. King, 185 Ark. 421, 47 S. W. (2d) 578; Powers v. Wood Products Corp., 184 Ark. 1032, 44 S. W. (2d) 324; Kansas City Fiber Box Co. v. F. Burkart Mfg. Co., 184 Ark. 704, 44 S. W. (2d) 325.
This case was by agreement, tried by the court sitting as a jury, and his finding is as conclusive as the finding of a jury. American Ins. Co. v. Brannan, 184 Ark. 978, 44 S. W. (2d) 346.
The court, in this case, after hearing the evidence, found that under the evidence the appellants were the tenants of appellees from month to month that they had paid approximately one month’s rent under the contract, and had defaulted in the payment of rent for one year. This finding of fact by the circuit court is conclusive on appeal, and the fact that the finding of a jury ,or a court sitting as a jury appears to be against the preponderance of the evidence does not authorize this court to reverse the judgment if there is any substantial evidence upon which to base it. These are matters within the province of the jury or the court sitting as a jury, and we are not authorized to pass on the credibility of the witnesses or the weight to be given to .their testimony.
There was substantial evidence to support the finding of the court, and the judgment of the circuit court is affirmed. | [
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Johnson, C. J.
On August 1, 1932, appellant issued its policy of insurance to Arthur Hampton by the terms of' which it agreed to pay Annis Hampton, beneficiary, in the event of the accidental death of the insured, $400 as follows:
“INDEMNITY POE SPECIFIC LOSSES FROM ACCIDENTAL INJURIES.
“If due directly (and independently of all other causes) from a bodily injury, which is sustained while this policy is in force and which is effected accidentally and through external and violent means (excluding suicide, sane or insane, and injuries fatal or nonfatal, intentionally inflicted upon the insured by himself or by any other person except by burglars or robbers) the insured shall, within ninety days of the date of such injury suffer either of the losses below enumerated in schedule B, the company will pay the amount set opposite such specific loss in the schedule B referred to; such payment to be in addition to the weekly indemnity provided in schedule A for the period of total disability'prior to the date of such specific loss.
‘ ‘ Schedule B
“Accidental Loss of Life The principal sum.”
On February 11, 1933, the insured died, at which time the policy of insurance was in full force and effect.
Thereafter this suit was instituted by Annis Hampton, the designated beneficiary, against appellant, alleging the contract, its effectiveness at the time of the death of the insured by accidental means, and sought recovery of the sum of $400, together with penalty and attorney’s fees.
The testimony, when viewed in the light most favorable to appellee and as stated by appellee in her brief filed herein, was to the following effect:
“Now, analyzed as an intelligent chain of facts and circumstances, let us see if the appellee has presented facts and circumstances sufficient to meet the requirement of the law as expressed by this court regarding the sufficiency of evidence to sustain a verdict. Appellee has shown that the insured was a well and able-bodied man of forty-six years of age; that he had been working continuously for some five or six weeks prior to the time of his fall and injury; that he was strong and well enough to roll six-hnndred-pound bales of linters, with a coworker, for ten hours a day, and this was testified to by Sol Brown, Annis Hampton, Hattie Gilstrap and the foreman, Mr. Ritchie; that, while in the act of rolling one of these bales, he unexpectedly stepped down into a hole some two or three feet, and, as a result of same, received an unexpected and severe jolt; chat prior to that time he had not complained in any way of not feeling well, but a short time after the fall he complained of being sick and a little later, in the afternoon of having a chill, which necessitated his quitting work some thirty minutes before the regular quitting time; that about seven o’clock his wife found him at home sick and unable to eat supper and complained of suffering with pains in the stomach. ’ ’
The jury returned a verdict in favor of appellee, and this appeal is therefrom.
But one serious contention is presented on this appeal, namely, that the testimony is insufficient to support the verdict of the jury. It is the well-settled doctrine in this State that a jury’s verdict cannot be predicated upon conjecture or speculation. St. Louis, I. M. & S. Ry. Co. v. Enlow, 115 Ark. 584, 171 S. W. 912; St. Louis, I. M. & S. Ry. Co. v. Belcher, 117 Ark. 638, 175 S. W. 418.
Mr. Justice Brewer, in Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, tersely stated the doctrine as follow:
“It is not sufficient for the employee to show that the employer may have been guilty of negligence — the evidence must point to the fact that he was. And where the testimony leaves the matter uncertain and shows that any one of a half dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion.” And without adding to or subtracting from the rule thus stated, we announce our approval thereof.
The effect of the testimony here presented and heretofore quoted falls far short of the requirements of the rule as heretofore announced. No witness testified, from opinion or otherwise, that the insured died from the effects of any accidental injury received by him, nor does any witness testify that the fall, which he received on February 8, immediately prior to his death, was even a contributing- factor thereto. Neither did any witness testify to any facts or circumstances from which it might be inferred that the insured’s death resulted from this fall. The physician called by the insured and who attended him during- his last illness testified to no. such fact or circumstance. On the contrary, this physician testified that the insured died of a cerebral hemorrhage, which was probably caused by excessive vomiting, and that this excessive vomiting was caused from the effects of a chill which insured had during the evening of February 8.
Under long-established rules of this court, the burden rested upon appellee to show by evidence, not only that the insured suffered an accident, but that his death resulted therefrom. This the testimony here presented wholly fails to do.
Thus it definitely appears that the jury’s verdict was based upon conjecture and speculation, and not upon facts and circumstances introduced in evidence, and for this reason cannot be sustained.
It follows from what we have said that the trial court erred in refusing to direct the jury to return a verdict in favor of appellant when requested so to do, and likewise in refusing- appellant a new trial upon consideration of its motion therefor.
Since the case seems to be fully developed, it will be reversed and dismissed. | [
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Mehaffy, J.
The appellee, Bess Alston, and the appellant, Roy Alston, were married October 12, 1915, and lived together as husband and wife until June 1, 1933', practically 18 years. On September 14, 1933, the appellee filed in the Sevier Chancery Court a suit for divorce on the grounds of indignities. She alleged the indignities as follows: “Treating her with rudeness, vulgarity, unmerited reproach, haughtiness, contempt, contumely, manifest disdain, abusive language, malignant ridicule, intentional incivility and studied neglect, habitually and systematically pursued. That his manner toward her had been repeatedly persistently unkind. That he withdrew from her all confidence. That his conduct toward hen indicated plain manifestation of settled hate, alienation and estrangement, both of word and action.” That such course of conduct upon the part of the defendant commenced some three or four years ago, and has grown in intensity and severity since that time until it finally became impossible for her to longer live, with him.
It will be observed that the complaint does not state any facts, but states mere conclusions based on the statute, without any attempt to set out what the facts are, or when they occurred, other than stating that the course of conduct commenced three or four years ago.
“The indignities of which she complained should have been specifically set out, that it might have been seen whether they were such as to render her condition intolerable as alleged, or a sufficient cause for the divorce she sought.” Brown v. Brown, 38 Ark. 324; Waldren v. Waldren, 187 Ark. 1077, 63 S. W. (2d) 845.
We said in the case last mentioned: “An allegation such as the one in appellee’s complaint would be sufficient to support a decree where no motion to make more specific was filed, if the evidence had been as to specific facts or specific acts of appellant instead of mere conclusions.
“Where one brings suit for divorce alleging indignities and misconduct, as the appellee did in this case, the defendant of course would be. entitled to know what the plaintiff claimed were the facts constituting the indignities, and if a motion was made to make more specific, the court would require the plaintiff to set out the facts.”
The appellee testified about the date of the marriage and the date when she left the appellant; that they had one little girl nine years of age who is with her, except week-end visits to her father; that Mr. Alston made a visit to Vicksburg, Mississippi, in July, and since then they have not lived together as husband and wife; that Mr. Alston is in the mercantile business; he was gone to Vicksburg about ten days, and appellee did not hear from him during that time; did not know when he came back, and when he came back he did not call her up or notify her; the first she knew about his coming back was on Wednesday after he came back on Monday. Appellee, when appellant went to Vicksburg, stayed at her mother’s, and was there when he returned. She was at her mother’s and went out to get some water, and appellant was on the roof of the new home that her mother was building, and when she saw him she said, “Hello,” and he said “Good morning,” and that was all that was said. He stayed" there about five or ten minutes after speaking to her. He did not say anything about the appellee’s going home, and did not call or send for her after he got home. She went home and took her daughter, Joy, and when they got home appellant just looked ugly, and did not have anything to say to her; that they had a bedroom and a sleeping porch, with a door between, and the door had always been left open. That night he closed the door and did not have anything to say. She did not open the door that night. A few nights after that when Joy was away, she opened the door and thought she would joke with him. He was out of tune, and she thought he would get in a better frame of mind. She told him she was lonesome, and asked him why he did not open the door, but he did not answer or look at her, and she closed the door.
Appellee and Joy were in an automobile accident in August. When she tried to talk to appellant, the chances were he would get his hat and go to the store. He was never in a good humor, never undertook to have a pleasant conversation or cohabit with her as husband and wife. The little girl was badly hurt in the accident and appellee was injured. Joy was rendered unconscious. Appellee’s back .and knee were hurt. The bus driver took her to the hospital and her husband got in the front seat. She and Joy were in the back seat. Appellant did not say anything to her, but just looked ugly. He did not ask appellee if she were hurt. The bus driver asked her to explain how the accident occurred. Appellant did not ask the doctor in her presence about the extent of her injuries. She thinks he did not even know she was hurt; thinks he was still pretty mad at her. She was suffering, she said, and the doctor gave her a hypodermic. Appellant sat right over Joy all the time, and when the nurse came in to take Joy’s temperature, appellant said to her, pointing* over her shoulder: “She’s the one that is making the racket.”
She told appellant that she was going to the hospital at Texarkana, and he did not make any arrangements for her to go. When she told him she was going, he said: “Who said so, your mamma?” She told appellant that she had had X-ray pictures made. He just listened and did not say anything. He just had a look of disdain-— just an ugly look that he has for witness.
Appellant said to her, at a time she had gone to DeQueen for some dental work, that he- was getting mighty tired of this, and asked her when she was going to get her lawyers and get a divorce. She told him that if he wanted to talk about it they would talk then, but he said: “No, your aunt is out there-. Go on,’’
Appellee then testified about some conversations with her brother and her father, and then said that appellant told her she was not a nice girl when he married her, and asked her if she had not had dealings with so and so. She also testified that when some lady came into the room and asked appellant how appellee’s knee was, he said: “I do not know what the doctor said about her knee. He has been in there looking at her leg for 3'0 minutes.”
Appellee testified that, after they had been married about two years, he employed Miss Pearl Rogers to work in the store, and she wanted him to get rid of Miss Rogers, and he finally did. She then said that appellant did not like Mr.- Custer Hughes, but that she had known Hughes always. That appellant often got his gun and would take a walk with it. She testified about their going to the country club when appellant did not want to go. She also testified about a diary she said appellant kept, and she complained about it and said it was such trash; that appellant did not confide in her with reference to his business matters.
She left her husband about September 12th and did not presume he wanted her to come back; that he never let any one hear him say very cruel remarks. There was some disagreement about the purchase of a piano for Joy. She also admitted that she told appellant when the baby was born that she was going to teach her to dislike him.
When appellee was asked on cross-examination if it was not a fact that every time Custer Hughes would come around the house he would grab her and kiss her and put his arms around her, she answered: “Don’t you know Custer Hughes well enough to know that he does that with a good many other women?” She said that at one time appellant called her a liar.
The above is substantially the testimony of appellee. She introduced O. C. Kirby, her father, and Mrs. Sarah Graves, but neither of these witnesses introduced by her testified to any facts in corroboration of appellee’s testimony.
We do not set out the testimonjr of appellant because, as we view the testimony of appellee, there is not sufficient evidence to justify the granting of a decree, and appellant does not ask for a divorce. The appellant denied all the appellee’s testimony.
There is very little evidence as to facts constituting indignities. The evidence about appellant’s looking ugly and treating appellee with disdain are merely conclusions, and no facts are testified to with reference to these matters. The evidence of appellee is without sufficient corroboration.
We recently said: “It is the established doctrine in this State that a divorce decree will not be granted upon the uncorroborated testimony of one of the parties.” Sutherland v. Sutherland, 188 Ark. 955, 68 S. W. (2d) 1022; Darrow v. Darrow, 122 Ark. 346, 183 S. W. 746; Johnson v. Johnson, 122 Ark. 276, 182 S. W. 897; Arnold v. Arnold, 115 Ark. 32, 170 S. W. 486; Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86; Rie v. Rie, 34 Ark. 37; Preas v. Preas, 67 S. W. (2d) 1013.
In 2 Nelson on Divorce and Separation, page 742, the rule as to corroboration is discussed, and, among other things it is said: “If both parties testify, and the defendant denies all the plaintiff’s testimony, the evidence is insufficient. In such cases, however, the court must be careful to notice the character of both parties, and the consistency of the testimony, and may refuse a decree if the evidence is not satisfactory. In New Jersey and Arkansas and perhaps other States, the courts have required corroborative evidence for so long a time that the rule has acquired almost the effect of a statute.”
In Keezer on Marriage and Divorce, page 361, it is stated: “While there is no general rule aside from the statute, requiring corroboration, courts are so reluctant to decide cases on such evidence, that it amounts to nearly the same thing, and evidence of the parties should be corroborated, if possible. ’ ’ To support this rule, several Arkansas cases are cited.
Our conclusion is that there was not sufficient evidence to justify the granting of a decree, and the decree therefore must be reversed, and the cause dismissed.
It is so ordered. | [
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Butler, J.
At the primary election held in St. Francis County on August 14, 1934, the appellant, Charles Fleming, and the appellee, E. A. Bolfe, were candidates for the Democratic nomination for the office of county judge of said county. On the returns of the election the central committee found that E. A. Bolfe had received a majority of the votes cast and issued to him its certificate of nomination. The appellant, Fleming, filed his complaint contesting the right of the appellee to the nomination, to which was appended in the form and manner required by law the affidavit prescribed, subscribed to by nineteen affiants. To that complaint the appellee filed a motion to strike and dismiss the complaint on the sole ground that the affiants were incompetent to make the affidavit in that they were not familiar with the allegations made in the complaint; that within two years past they had violated §§ 3 and 4 of the rules of the Democratic Party by failing to support the regular Democratic nominee at a general election; that they were not qualified electors with the meaning of § 3772 of Crawford & Moses’ Digest.
A response was filed to that motion, and, .after hearing testimony, the court overruled the contentions contained in the motion to dismiss, that (B) “the affiants do not know and are not familiar with the facts made and set out in the complaint”; and that (C) “each of the affiants had violated the rules of the Democratic Party within the last two years bAT supporting other than a Democratic candidate.”
The court, however, sustained the motion of the appellee on the theory that 13 of the affiants were not qualified electors under § 3772 of the Digest, for the reason that some of them had failed to assess a substantial portion of their personal property, that one had failed to assess her personal property when her poll was assessed, and' that others had failed to state in their assessment lists that they had no personal property.
The appeal presents for our determination the single question of whether or not the judgment of the trial court, holding that the affidavit was subscribed by less than ten qualified electors within the meaning of the law, is correct. The appellee seeks to justify the action of the court on the authority of Collins v. Jones, 186 Ark. 442, 54 S. W. (2d) 400, and State v. Chicago Mill & Lbr. Corp., 187 Ark. 65, 52 S. W. (2d) 951. He points out certain language used in the case of Collins v. Jones, which he contends sustains his contention, particularly the following sentence: “One may assess who has no property subject to taxation, and one does assess that makes that statement and signs the blank assessment list showing no property subject to taxation.” The question presented here was not before the court in Collins v. Jones. That case involved the validity of a number of votes east by married women, and of those of certain persons who procured their names to be placed by the clerk on the assessment record without making any assessment of personal property. The attack made was that, although the poll taxes of these voters had been paid, they had not been properly assessed; and that they had been assessed with, and paid, no taxes other than their poll taxes. The facts were that the husbands of these women, after having assessed their property and poll tax, returned to the assessor and informed him that they had failed to assess their wives with a poll, and that he (the assessor) then went to the county clerk’s office and added their names to the book. Others brought their copies of assessment lists, and when these copies showed two polls the assessor would list the wife as having* been left off through error. These lists were all brought to the assessor after April 10 with no names subscribed except those of the husbands.
In passing on that question, we there said: “We agree with the circuit judge that these assessments did not comply with the law. None of these assessments were made until after April 10, at which time the provisions of § 3778, Crawford & Moses’ Digest, applied. Even those assessments which were not brought in ‘in bunches, ’ and which had not been mutilated, did not show the name of the second person assessed. The law appears to contemplate a separate assessment of each taxpayer, of all males and of all females, who wish to become qualified electors by paying a poll tax.”
The only other question decided by the court in Collins v. Jones, supra, was whether or not the trial court properly excluded from the count of legal electors the names of persons which had been placed on the tax books by the county clerk without requiring any assessment to be made of personal property. We held that this action of the court was proper, and, in so doing, said: “The fact — if in any case it was a fact — that these persons had no property subject to taxation would have been no reason for not placing their names on the tax books; but, nevertheless, they were required to sign a tax list showing the property, if any, owned by them. ’ ’ The court did not say or mean, by the language quoted, that the person had to inscribe on the list, “no personal property,” or other words of similar import.
In State v. Chicago Mill & Lbr. Corp., supra, the questions involved related only to the assessment and collection of revenues and not to the qualification of electors and therefore have no application to the case at bar.
We are of the opinion that when a person signs and delivers an assessment list in which he fails to assess any personal property whatever, it is sufficient to show that he has none, within the meaning of Collins v. Jones, supra, and when property is owned by an elector and omitted from Ms assessment lists, while it may subject him to the penalty provided by law, it does not prejudice Ms right to vote. In other words, one who signs an as- , sessment list, assessing his poll, and gives it to the as sessor and thereafter pays his poll tax within the time required (not being otherwise disqualified) is a qualified elector. The laws relating to assessment of property for taxation are primarily intended for the collection of revenue and ample provision is made for the discovery of all omitted property and adequate penalties provided for those who -wilfully fail to assess, or give fraudulent statements of value.
It is contended by the appellee that the court’s action was proper, not only for the reason given by it, but for the further reason that the assessor failed to administer the oaths -to the persons assessing in the manner provided by law and failed to sign the jurat. The failure of an officer to perform his duty does not deprive a citizen of his right to the elective franchise, and we hold the argument of the appellee unsound.
Appellee has filed a motion to dismiss the appeal because of the failure of the appellant to abstract the testimony relating to the question decided by the. court against him, but he has made, in his abstract and brief, no reference to any exception saved by him to the action of the court, and has failed to pray a cross-appeal from the. finding of the court in those particulars. The presumption is that the court’s decision was supported by the proof, and it was the duty of the appellee, not the appellant, to bring up these questions for review, if he felt aggrieved.
The judgment of the trial court is reversed, and the cause remanded with directions to reinstate the complaint, and for further proceedings. | [
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Humphreys, J.
Appellant brought suit in her representative capacity against appellee and L. N. Graham for damages in the sum of $45,000 for the benefit of herself as widow and her son and for $5,000 for the 'benefit of the estate of her deceased husband, Ivan E. Leech, on account of Ms death caused by the collision of appellee’s train and Graham’s automobile at the road crossing between Owosso Manufacturing Company plant and the station at Benton, through the alleged concurrent negligence of Graham and appellee’s employees. The alleged negligence on the part of appellee was its failure to blow its whistle and ring its bell as it approached said crossing and the failure of Graham to effectually look to see if the train was approaching as he drove upon the crossing.
Graham filed no answer. Appellee filed an answer denying the material allegations of the complaint and pleading that Graham’s negligence was imputable to deceased, who was riding as a guest in his car.
The submission and trial of the cause resulted in the following verdict:
“We, the jury, find for the plaintiff against both defendants and assess her damages for the benefit of the estate of the deceased in the sum of $3,750.
“Jos. R. Curland, Foreman,” and nine others.
A judgment was rendered in accordance with the verdict, and the amount thereof was declared a lien upon the railroad of appellee, as provided by statute. The judgment contained the following paragraph: “It is further considered’, ordered and adjudged that no finding was made by the jury upon the cause of action for the benefit of the widow and child of the. deceased. It is therefore considered, ordered and adjudged that the plaintiff take nothing upon her cause of action for the benefit of the widow and child of the deceased.”
Appellant appealed from that part of the judgment precluding a recovery by appellant for the benefit of herself as widow and the benefit of her five-year-old son.
No exception was filed to the judgment by appellee, no motion for a new trial was filed by it, and no appeal prayed from the judgment by it when the judgment was entered.
After the transcript of the cause was filed by appellant in the Supreme Court and more than six months after the rendition of the judgment, appellee prayed and was granted a cross-appeal.
When the verdict was returned into court, the record reflects the following occurrence: “Mr. W. B. Donham: Is that for the benefit of the estate and nothing for the benefit of the wife at all? A Juror: No, sir. The Court: The jury, will 'be discharged and be back in a few minutes; we want to start another case. Mr. W. B. Don-ham : Let the record show that, upon returning the verdict and upon the verdict’s being read by the foreman of the jury, W. B. Donham, counsel for the plaintiff, arose and propounded the following question: ‘Did the jury not intend to find any amount of damages for the benefit of the widow and child of the deceased?’ To which the foreman replied in the presence of all the jury and in open court, ‘No, sir.’ Mr. B. M. Byan: Let the record show no exceptions were saved in the presence of the jury. Mr. W. B. Donham: I am saving them now. I want the record to show I object and except to the form of the verdict. The Court: All right. Mr. W. B. Don-ham: The plaintiff requests that the jury be recalled and sent back to the jury room for further deliberations and that they be instructed that if they return a verdict against the defendants jointly for the estate they must necessarily also return a verdict for the benefit of the widow and child of the deceased. The Court: Motion overruled. To which ruling and action of the court the plaintiff at the time excepted and asked that her exceptions be noted of record, which was accordingly done.”
Appellant contends that two causes of action were alleged, which is conceded by appellee, and that she was entitled to a verdict as well upon her cause of action for the benefit of herself and son as upon her cause of action for the benefit of the estate, and that it was error not to require the jury to return a verdict for a substantial amount for the benefit of herself and son. It is argued that in order to find a verdict for the benefit of the estate it was necessary for the jury to find that appellee and Graham were negligent and that deceased was not. This is true, and the verdict on behalf of the estate is sup ported by sufficient evidence, as there was testimony tending to show these facts. It does not follow, however, that because two separate and distinct causes of action are tried by the same jury the finding of facts in one cause is binding on the jury in the other cause of action if there is a dispute in the testimony. Although there was evidence tending to show concurrent negligence on the part of Graham and appellee and no negligence on the part of deceased, yet there was evidence tending to show no negligence on the part of appellee, and the jury was at liberty to so find in the cause of action on behalf of appellant for the benefit of herself and son, as much so as if the two causes of action had been tried separately instead of together. Notwithstanding the causes of action may be tried together under the provisions of the statute, they are wholly independent of each other, and the finding of the jury in one is not binding upon the jury in the other if the facts are in dispute, as they were in this case.
The main contention of appellant, however, is that, according to the judgment and record made, the jury returned no verdict either for or against her on her cause of action for the benefit of herself and son. A majority of the court, not including Mr. Justice Mehaeey and the writer, are of opinion that the questions propounded to the jury and answered by the foreman, elicited the information and verdict to the effect that the jury intended to find appellant was entitled to nothing on her cause of action for the benefit of herself and son.
Mr. Justice Mehaeey and the writer are of opinion that the queries and answers elicited the information that the jury made no finding at all on appellant’s cause of action for the benefit of herself and son, which view is supported by the above quoted recital in the judgment appealed from.
There being no proper cross-appeal or appeal by appellee, the questions raised thereon are not before us for determination.
No error appearing, the judgment is affirmed, | [
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Smith, J.
James P. Ball filed suit on October 5, 1933, in the Washington Chancery 'Court against Lina M. Ball, his wife, for divorce, and alleged her desertion of him as the ground therefor. A decree was rendered as prayed in March, 1934, from which is this appeal.
An answer was filed in which Mrs. Ball denied that she had deserted her husband. She alleged that, on the contrary, her husband had, without cause and against her wishes, deserted her, and that she had been at all times, and was now, willing and desirous to resume the marital relation. She pleaded also, in bar of the suit, the judgment of the circuit court of Jackson County, Missouri, at Kansas City, in which her husband had been denied a divorce. That court was alleged to be a court of competent jurisdiction, having jurisdiction of the subject-matter of the suit and of the parties thereto, and that the final judgment of the court, rendered on the merits of the case after a full hearing on June 23, 1933, denied Mr. Ball’s prayer for a divorce. A copy of all the pleadings and proceedings in that case, duly authenticated, was offered and admitted in evidence at the trial from which this appeal comes. Hall v. Roulston, 70 Ark. 343, 68 S. W. 24.
In the complaint or petition for divorce filed in Missouri it was alleged that the parties were married December 4, 1916, in Norwalk, Connecticut, and lived together as husband and wife until June, 1924, since which time they have lived separate and apart, and that'Mrs. Ball had offered such indignities to her husband as to render his condition as her husband intolerable and made it impossible for them to live together, the details of which allegations need not be stated. It was also alleged that the petitioner’s business required him to establish his abode at various places throughout the country for long periods of time, and, although he requested his wife to accompany and remain with him, she refused to do so and insisted on remaining at the home of her mother in Norwalk, Connecticut, remaining away from him continuously since June, 1924, notwithstanding the fact that he had discharged all his duties as a husband and had treated his wife with kindness and affection.
In the suit filed in this State a decree was prayed on the sole ground of desertion, a fact which was sufficiently alleged in the complaint, and testimony was offered to support that allegation.
As opposed to the plea of res judicata, it is insisted that the second suit for divorce — the one filed in this State — is upon a different cause of action from the one alleged in the Missouri suit, and, as appellee insists, “the causes are contradictory,” and, this being true, the former suit bars only the cause of action there relied upon and does not bar a cause of action then existing but not then and there adjudged.
It is insisted that desertion was not relied upon as a cause of divorce in the Missouri suit, for the reason that the complaint did not allege that the absence was with-' out reasonable cause, whereas that allegation and proof thereof is essential, under the laws of Missouri, to obtain a divorce on the ground of desertion. Freeland v. Freeland, 19 Mo. 354; Hoffman v. Hoffman, 43 Mo. 547; § 1801, Revised Statutes of Missouri, 1919.
In answer to this insistence, it may be first said that we do not construe the complaint filed in Missouri as being deficient in this respect. By fair intendment the allegations thereof do charge an absence from the husband during a long number of years, and without reasonable cause, and desertion was therefore alleged, although the proof in that case was directed, not to that charge, but to the charge of indignities rendering the condition of the husband as such intolerable. However, there is no allegation or proof in the instant case of any change in the situation or relations of the parties to each other since the rendition of the decree in Missouri. If the husband is entitled to a divorce now on the ground of desertion, he was entitled to it for the same reason when the Missouri decree was rendered.
It is true we held in the case of McKay v. McKay, 172 Ark. 918, 290 S. W. 951, that, if one spouse leaves another without cause and absents himself or herself from the innocent spouse for a year or more, a complete cause of action for divorce arises, which the offending spouse may not destroy by an offer, even though made in good faith, to resume the marital relation. But no such question is presented here. The husband has those causes of action which existed then, and none other.
It is conceded, of course, that full faith and credit must be given by us to the decree of the Missouri court. It could not be otherwise in view of § 1 of article 4 of the Constitution of the United States, which requires that: “Pull faith and credit shall be, given in each State to the public acts, records, and judicial proceedings of every other State.”
In the famous and leading case of Haddock v. Haddock, 201 U. S. 562, which involved the validity in one State of a decree for divorce rendered in another, it was held (to quote a headnote) that: “The requirement is not that some, but that full, faith and credit, equal to that to which it is entitled in the State where rendered, shall be given to a judicial decree of another State.” See also Harding v. Harding, 198 U. S. 317.
In the case of Viertel v. Viertel, 99 Mo. App. 710, a headnote reads as follows: “The husband brought divorce on the ground of adultery with D. His bill was dismissed on the ground of connivance. Held, such connivance would not be a complete bar to a subsequent bill for adultery with C committed after the dismissal, or for adultery with P committed prior to the former suit of which the husband had no knowledge at that time, but such judgment of dismissal bars an action for adultery with P, since it might have been raised and litigated in the former action.” In the body of the opinion it was there said: “The court found that plaintiff at the time he brought his first suit was unaware of the former infidelity. We have examined the testimony, and it does not appear that any evidence was offered to show such fact. The plaintiff himself failed to state whether or not he was in possession at said time of any knowledge of such prior adultery. It devolved on him to prove that, at the time he brought his said former suit for divorce, he included his whole case, and he will not be permitted to open up the same subject of litigation in respect to matters which might so have been brought forward. ‘All the issues that might have been raised and litigated in-any case are as completely barred by the final decree therein as if they had been directly adjudicated and included in the verdict.’ Donnell v. Wright, 147 Mo. 639, 49 S. W. 874. Under the rule the plaintiff was not entitled to a decree against his wife for the alleged act of adultery with said Parker, as it was a matter for litigation in said former suit.”
It would appear to follow from this holding that the courts of Missouri would not now grant Mr. Ball a divorce for desertion, inasmuch as that cause of action existed and was known to him, if true at all, at the time of the trial in Missouri, and nothing has since occurred to confer a cause of action which did not then exist. See also Searcy v. Searcy, 196 Mo. App. 311, 193 S. W. 871.
We have many cases holding the judgments of courts of competent jurisdiction of other States to be conclusive as to the merits of the original cause of action. Among others are these: Glass v. Blackwell, 48 Ark. 50, 2 S. W. 257; Jordan v. Muse, 88 Ark. 587, 115 S. W. 162; Taylor v. Bacon, 102 Ark. 97, 142 S. W. 1128; Albright v. Mickey, 99 Ark. 147, 137 S. W. 568; Ederheimer v. Carson Dry Goods Co., 105 Ark. 488, 152 S. W. 142; Rice v. Metropolitan Life Ins. Co., 152 Ark. 498, 238 S. W. 772; Hartford Fire Ins. Co. v. Citizens’ Bank, 166 Ark. 551, 266 S. W. 675; Miller v. Brown, 170 Ark. 949, 281 S. W. 904.
The question here presented is not a novel one. The case of Averbuch v. Averbuch, 80 Wash. 257, 141 Pac. 701, is reported in Ann. Cas. 1916B, and, with the annotations, extends from page 873' to page 920 of that report, and reference is made to it for the use of any one desiring an exhaustive review of the subject. In the body of that opinion a number of' cases are cited in support of the statement there made, that: “It is elementary law that, in divorce actions, as in all others, a judgment is final and conclusive upon all questions which were or might have been litigated,” and the annotations cite many other cases to the same effect.
We have many cases in our reports announcing the same principle. A late case citing a number of others is that of West Twelfth Street Road Imp. Dist. v. Kinstley, ante p. 120, 70 S. W. (2d) 555, in which it was said: “The settled rule of this jurisdiction supported by the weight of authority is that a judgment of a court of competent jurisdiction is conclusive of all questions, legal or equitable, which were raised in the cause or which, being within the scope of the issue, could have been interposed.” (Citing cases.)
Our cases of McKay v. McKay, 172 Ark. 918, 290 S. W. 951, and Butts v. Butts, 152 Ark. 399, 238 S. W. 600, are cited as sustaining the contention that a denial of a divorce upon one ground is not a bar to a suit for divorce upon a different ground, although the latter cause existed and was known when the first suit was determined. But such is not their effect. In the McKay case, sapra, it was said: “We think the present suit of appellant is not barred by the decree in the first suit, for the reason that she alleges a different cause for divorce, one which could not have existed when she filed her first suit — that of desertion — as the parties had not been separated a year when the first suit was commenced. 1 Nelson on Divorce and Separation, § 555. In other words, a denial of a decree upon a particular ground is no bar to a suit for divorce upon a. cause of action which subsequently arose. But, as has already been said, no new cause of action, not existing at the time of the rendition of the decree in Missouri, was alleged or proved.
In the Butts case an appeal from a decree of divorce was dismissed for the reason that the appellant had remarried after the divorce had been granted, and it was held, for that reason, that the appellant had forfeited her right to appeal to this court to correct the alleged error of granting the divorce. Attention, however, was there called to the fact that the. Louisiana court which had granted a divorce a mensa et thoro, pleaded in bar of the suit for divorce in this State, was without jurisdiction to render a decree for an absolute divorce, for the reason that, under the practice in Louisiana, an absolute divorce cannot be rendered on constructive service of process, as had been there prayed. But, as has been said, there is no question about the jurisdiction of the Missouri court to have granted an absolute divorce for either the indignities or the desertion.
Inasmuch as the decree of the Missouri court bars the present suit, it becomes unnecessary to review the case on its merits. We may say, however, that, in our opinion, the testimony does not establish the fact of desertion on the part of Mrs. .'Ball. On the contrary, in our opinion, he is the offending spouse in this respect.
Having held that Mr. Ball is not entitled to a divorce, and that the decree granting the divorce should be reversed, we are now asked to make an order allowing Mrs. Ball an attorney’s fee and the costs of the suit, and also a. provision for her support and maintenance. We heretofore allowed a hundred dollars as expense money, reserving the questions of attorney’s fee and costs until the final disposition of the cause. It is now shown that, since the trial of the case in the court below, Mr. Ball’s income has been very greatly increased through the death of his father; but the facts in relation thereto were not developed at the trial, and we are therefore of the opinion that this feature of the case should be heard and fully developed in the court below, where appropriate orders may be made for Mrs. Ball’s support.
The litigation appears to have been protracted and expensive, and it is now ordered that all the costs thereof, including the costs on the appeal, be assessed against Mr. Ball, and he is further ordered to pay her attorney the sum of $250 as his fee in this case to this date.
The decree of the court below will therefore be reversed, and the cause remanded with directions to set aside the decree from which this appeal came, and for further proceedings in accordance with this opinion. | [
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Johnson, C. J.
On January 10, 1931, the People’s Bank & Trust Company, of Morrilton, Arkansas, by and through its president, J. S. Moose, and its cashier, Benton Grarrett, executed, acknowledged and delivered its warranty deed by which it conveyed to Howard and Melbourne Moose, sons of J. S. Moose, real estate of- the book value of $13,500 belonging to it. The deed reciting a consideration of $13,500 cash in hand paid. Thereafter on January 20, 1931, the grantees in said deed executed, acknowledged and delivered their real estate mortgage upon all lands described in said deed to H. M. Jacoway. This mortgage was conditioned for the due and prompt payment of .a recited indebtedness aggregating $12,400. Immediately after the execution and delivery of the mortgage and accompanying notes the mortgagee and payee therein transferred and assigned the same to the Harvey Investment Company of El Paso, Texas.
After the transactions heretofore recited, the People’s Bank & Trust Company became insolvent and was taken over for liquidation by Walter E. Taylor, then Bank Commissioner of this State. Thereupon this suit was instituted by Taylor, as Bank Commissioner, against J. S. Moose, Howard and Melbourne Moose and H. M. Jacoway, seeking the recovery of the real estate conveyed by said bank and to recover judgment against H. M. Jacoway^ for a 100 per cent, stock assessment against $2,400 in par value of the bank stock owned by the said Jacoway.
In reference to the real estate transaction, it was alleged that the conveyance by the bank to Howard and Melbourne Moose was without consideration and therefore void. In reference to the stock transaction, it was alleged that Jacoway, prior to November 30, owned $2,400 par value of the capital stock of the said People’s Bank & Trust Company and that on November 17, 1930, said bank became insolvent and remained so thereafter; that in January, 1931, said Jacoway transferred his stock to J. S. Moose, who was and is insolvent; that said transfer and pretended sale was made with intent to avoid his stock assessment.
The Harvey Investment Company intervened in said cause and alleged that it purchased for value and before maturity the notes and mortgage securing same from Jacoway, and was therefore an innocent purchaser and holder; that default had been made in payments as provided in said mortgage and notes; that it therefore-prayed for judgment and foreclosure.
The Mooses answered by admitting the execution of the deed, the mortgage and notes, but otherwise denying the material allegations of the complaint.
H. M. Jacoway answered by pleading purchase for value of the notes and mortgage and the transfer and assignment thereof to the Harvey Investment Company for value. Jacoway further answered that in January,. 1931, when he sold his bank stock to J. S. Moose, said bank was solvent and a going institution; and that tbe sale and transfer was in all things approved by the State Banking Department.
Upon the issues thus joined, a voluminous amount of testimony was taken which was not in all particulars responsive to the issues joined. The following is a concise resumé of the testimony:
Prior to November 30, H. M. Jacoway owned $2,400 par value of the capital stock of the People’s Bank & Trust Company of Morrilton; that J. S. Moose and his sons, Howard and Melbourne Moose, were also stockholders in said bank, J. S. Moose, being the president of said bank and in the actual charge and management thereof; that on November 17, 1930, said bank became insolvent and closed its doors to business, which condition continued until December 30, 1930, when it was opened for business under the following circumstances: More than 90 per cent, of the depositors in said bank executed stipulations by which they agreed to not withdraw any amount of their respective, deposits for a period of three years; a great majority of the stockholders, including Jacoway, signed a stipulation agreeing to not sell or transfer any of their respective stock holdings in said bank until all depositors were paid in full or for a period of three years. Upon the execution of the agreements aforesaid, the State Bank Department authorized and permitted the reopening of said bank for a restricted banking business. This restricted banking business was in progress and being* pursued when the stock sale was effected and when the deed to the real estate was executed. Practically uncontradicted testimony shows that the Harvey Investment 'Company purchased the mortgage and accompanying notes before maturity and paid full value therefor without notice of defects therein. The evidence further discloses that Walter E. Taylor, State Bank Commissioner, was advised of the stock sale by Jacoway to Moose, prior to its consummation and gave his consent and approval thereto.
The evidence further shows conclusively that the bank did not receive the consideration expressed in the deed or any part thereof. The proceeds from the sale of the mortgage to the amount of $10,000 was used by Howard and Melbourne Moose to liquidate their personal indebtedness to the bank.
The chancellor determined that the Harvey Investment Company was an innocent purchaser for value of the notes and mortgage, and decreed judgment and foreclosure accordingly; that the stock sale by Jacoway to Moose was in good faith and valid, and this appeal is therefrom.
Appellant’s most serious contention for reversal is that the People’s Bank & Trust Company, of Morriltou became insolvent on November 17, 1930, and continued in such condition thereafter; therefore that in January, 1931, when the stock sale and transfer was effected by Jacoway to Moose and when the deed to the real estate was executed by the bank to Howard and Melbourne Moose, the liability for the stock assessment had previously accrued against Jacoway and for the same reason the deed was void being executed subsequent to insolvency.
By act 113 of 1913 and amendments subsequent thereto, the State Banking Department was created and vested with full power and authority to authorize and supervise the opening, closing and the administration of all banks created under the laws of this State, and the State Bank Commissioner is designated as the administrator thereof. So it was when the People’s Bank & Trust Company was authorized and permitted to open for business on December 30, 1930, with the. assent and approval of the State Bank Commissioner, all persons dealing with said bank had a right to presume that the institution was solvent and that the officers in charge thereof were vested with authority to transact its business as authorized by law.
It follows therefore that the Harvey Investment ■Company is an innocent purchaser for value of the mortgage and notes, if the sale of the lands was authorized by the board of directors of said bank. See § 34, act 113, 1913, as amended by act 627, 1923. On this branch of the case it suffices to say that a great pre ponderance of the testimony shows that at a meeting of the board of directors held on January 10, 1931, a sale of this land was authorized. It is true the purchasers thereof may not have been designated in the authorizing resolution and said resolution may not have been in writing but these are of little significance. The minutes of the meeting should have reflected the authorizing resolution and the action of the board thereon, and this necessarily would have been a substantial compliance with the statute. At any rate, equity treats that as done which should have been done. It appears therefore that the sale of these lands was authorized by the board of directors in substantial compliance with the statute and a valid title passed by reason thereof.
Neither can appellant’s contention of liability for stock assessment against Jacoway be sustained. Although a stockholder in this institution, Jacoway was not a member of the board of directors and had only such superficial knowledge of its affairs as other stockholders and citizens. He had a right to presume that the bank was solvent when it was permitted to open by authority of the State Banking Department. The stock which he owned in this bank was property and subject to sale and transfer as other property except for such restrictions as may appear in the law or be created by his own acts. Section 2 of act 102 of 1929 restricts the right of sale and transfer of bank stock by its owner by requiring the approval of such sale and transfer by the State Bank Commissioner. This approval was obtained by Jacoway prior to the sale therefore the only statutory restriction on the sale and transfer of bank stock was effectually removed. It is urged, however, that Jacoway signed a stipulation with other stockholders not to sell or transfer his stock for a period of three years or until “frozen deposits” were paid in full, and that his stipulation estops him in now asserting the validity of such sale and transfer. The first answer to this contention is that the State Bank Commissioner by his act of approving the sale and transfer waived enforcement of this stipulation. Secondly, Jacoway testified that he signed the stipulation on the express condition that all other stockholders would do likewise. According to the chancellor’s finding, this condition was never performed, and we can not say that his finding of fact in this regard is against a clear preponderance of the testimony.
It follows from what we have said that the decree must be affirmed. | [
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Kirby, J.
Appellant was tried under an indictment charging him with the crime of murder in the first degree, alleged to have been committed by shooting and killing one Young Butler. He was convicted of murder in the second degree, and given a sentence of sixteen years in the penitentiary, and has prosecuted this appeal to review and reverse that judgment.
It is assigned as error tliat the testimony is not sufficient to support the conviction. This assignment of error may be disposed of by saying that, according to the testimony on behalf of the State, the defendant made an unprovoked assault upon the deceased at a church during the church services. The parties were all negroes.
It is assigned as error that the court refused to charge the jury as to the difference between murder in the first degree and murder in the second degree. But the record does not support this assignment. The court fully and correctly defined the crime of murder, and, after doing so, then charged the jury as follows: “If you find from the evidence beyond a reasonable doubt that the defendant in Ashley County, Arkansas, and within three years next before the return of this indictment into court, with malice aforethought but without premeditation or deliberation, shot and killed the deceased, Young Butler, as alleged in the indictment, you will find him guilty of murder in the second degree.”
Thereafter the court gave an instruction requested by appellant defining premeditation and deliberation.
It is insisted also that the court erred in failing to charge the jury as to the crime of manslaughter and the difference between that crime and the crime of murder. But it does not appear that the court was asked to do so, or that any instruction was requested by defendant on that subject. It has been frequently decided that, where an accused desires an instruction on a particular issue not covered by the instructions given, he should request a correct instruction thereon, and he will not be heard to complain where he fails to do so. Lowmack v. State, 178 Ark. 928, 12 S. W. (2d) 909. It was held in the case of Graves v. State, 155 Ark. 30, 243 S. W. 855, (to quote a lieadnote) that: “Where defendant requested no instruction submitting the issue of manslaughter in a prosecution for murder, he cannot complain of the court’s omission to give such an instruction.”
It is insisted that a new trial should have been granted on account of newly-discovered evidence to the effect that the deceased had made violent threats against the accused which had not been communicated but which would have been admissible, as tending to show who had been the aggressor in the fatal difficulty, notwithstanding the fact that the threats had not been communicated. It was not shown, however, that this evidence could not have been procured had proper diligence been exercised, and for this reason the court did not err in refusing appellant’s motion for a new trial on the ground of newly-discovered evidence. Lewis v. State, 155 Ark. 215, 244 S. W. 458, and cases there cited.
It is finally insisted that the verdict returned was a quotient verdict, arrived at by adding together the number of years for which each juror thought the defendant should be sentenced for murder in the second degree— all the jurors having voted that the accused was guilty of that crime — and dividing- that total by twelve. It was stipulated “that, if the members of the jury were permitted to testify, they would give the testimony as outlined in the motion for a new trial signed by the defendant.”
This method of arriving- at verdicts was condemned in the case of Williams v. State, 66 Ark. 264, 50 S. W. 517; but it appears that no objection was there raised as to the competency of the testimony of the jurors to that effect. The court there said: “The facts are admitted, and we need not therefore discuss the method by which they were established.” The opinion recites that evidence bearing-on this point ivas introduced both by the State and the defendant at the hearing of the motion for a new trial.
We do not understand that the evidence of the jurors was offered without objection on the hearing of the motion for a new trial in this cause. The stipulation signed by the prosecuting attorney reserved the question of its competency, and admitted only that the jurors would so testify if they were permitted to testify.
This identical question has been several times considered, and the cases on the subject were reviewed in the recent case of Patton v. State, ante p. 133, where an attempt was made to show that the verdict upon which the accused had been sentenced was a quotient verdict, simi lar to the one here brought into question. We there held that the verdict of a jury could not be impeached by the testimony of a member of the jury except only to show that the verdict was made by lot, and there was no other testimony except the offered testimony of the jurors as to the manner in which the verdict had been reached. It was not error therefore to refuse to grant a new trial upon this incompetent testimony.
Upon a consideration of the case in its entirety there appears to be no error, and the judgment must therefore be affirmed, and it is so ordered. | [
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Baker, J.
Mark Shank was convicted of murder in the first degree in the Saline Circuit Court, and condemned to be executed. After he was- sent to the penitentiary in Jefferson County, application was made to S. L. Todhunter, superintendent of the Arkansas State Penitentiary, requesting that he select a jury of twelve men from'the regular panel of Jefferson County petit jury to hold an inquisition as to the present sanity, or insanity, of the said Mark Shank. The petitioner sought the aid of § 3251 of Crawford & Moses ’ Digest. The- section is as follows: “When the sheriff (superintendent of the State Penitentiary) is satisfied that there are reasonable grounds for believing1 that the. defendant is insane, or pregnant, he may summon a jury of twelve persons on the jury list drawn by the court, who shall be sworn by the sheriff (superintendent of the State Penitentiary) well and truly to inquire, into the insanity or pregnancy of the defendant and a true inquisition return,” etc.
S. L. Todhunter, the superintendent, denied the application of petitioner ashing the inquisition. Then this suit was filed in the. circuit court of Jefferson County, and on Wednesday, July 25, March term of the circuit court, the court upon a hearing, found that the petitioner was not entitled to the relief prayed for, the issuance of a mandate ordering the said S. L. Todhunter to proceed under § 3251 of the Digest'd» hold the said inquisition. It is this order, made by the circuit court of Jefferson County, that we are asked to review.
The case of Shank v. State was before this court on May 14, 1934, and the conviction of Shank was affirmed. See ante p. 243.
The defense offered upon the trial of Shank for the murder charge was his insanity. This question was very thoroughly presented and considered on the trial of the case, and the jury found against the contention of the appellant.
The allegations in the instant case are to the effect that Shank is now insane, and that on that account he should not be electrocuted. There were submitted to the superintendent affidavits of four physicians. Each of the affidavits was substantially the same in form as the other and to the effect that the affiant had observed and examined Mark Shank, confined in the death cell at Tucker to await execution; that from personal observation and careful study of his family, and personal history, it was the opinion of the physician that Shank is now insane and affected with an incurable mental disease.
■Since the judgment of the circuit court of Saline County imports a verity to the effect that Shank was not insane at the time of the trial, it is argued, but not stated, that if he is now insane, such insanity has come about since the trial and conviction. The only proof of present insanity arises ont of the affidavits. Because of its ex parte nature, proof of controverted facts, by affidavit, is sometimes not very satisfactory or conclusive. It usually states, as these affidavits do, conclusions of the affiant, without a development of the facts upon which affiant predicates his statement. The physicians say that they have observed and examined Shank, and, from personal observation and careful study of his family and personal history, they form the opinions expressed as to his insanity. All of the family history and also personal history of Shank that was available was presented at his trial at the time of his conviction. We do not say now that, if a hearing* were had at this time, this evidence would not be available to determine his present condition, but we are sa3dng* that it was not the intention of the statute to permit, or allow, the sheriff, or, in this case, the superintendent of the State penitentiary, to try again the questions already determined by the trial court, and reviewed and affirmed by the Supreme Court. If Shank’s insanity had not been presented to the court at any time, and had not been tried, a somewhat different situation would have been presented.
No affidavit contains a statement of any fact observed, upon which the opinion of the physicians is based, or that tends to show any real difference in the condition of Shank at this time and at the time of his trial and conviction. From the record before us, we do not know and cannot find any such alleged fact. If his actual condition now be the same as it was then, and there is nothing to show that it is different, the facts have already been determined. This, no doubt, was the viewpoint of the learned trial judge, when he denied the pra3^er of the petitioner to issue, a mandate to require the superintendent to hold the inquisition.
The situation in this case is somewhat incongruous. There is no specific allegation that Shank has become insane since the date of his trial. There is the allegation that he is now insane. If his present condition is not now the same that it was at the time of his trial and conviction, the facts showing* this changed condition could have been alleged and, no doubt, proof could have been offered upon it. That was not done.
The court held in the case of Howell v. Kincannon, 181 Ark. 58, 24 S. W. (2d) 953, that, since the passage of act No. 55 of the Acts of the General Assembty of 1913, the Superintendent of the State penitentiary should hold inquisitions which were formerly held by sheriffs, under §§ 3250 and 3251 of Orawford & Moses’’ Digest, and that this gave to an insane condemned person who has no further recourse in law a remedy where none other existed, and the reason for so holding is set out in the following language: “At the time this statute was passed the sheriff was the executioner, and had the custody of the person of the defendant from the date of judgment to that of execution, and he was therefore the only one who could have, full and free access to the presence of the defendant, and observe him during the time of his confinement before execution; and, since by the enactment of act No. 55, supra, all these duties and opportunities for observation have, passed from the sheriff to the keeper of the penitentiary, the only way by which those sections of our Code, supra, can be given any practical effect is by substituting the keeper of the penitentiary for the sheriff. ’ ’
A casual reading of the statutes relied upon would indicate that, under ordinary conditions at least, the inquisition to determine insanity arising after the sentence of death seems to be upon the initiative of the Superintendent of the Penitentiary. Since the Superintendent is presumptively, at least, a man of somewhat keen observation, discriminatory powers, good judgment, his observation and judgment would be such that, upon the institution of inquisition by him, most careful consideration would be accorded to his views, but, on the other hand, his refusal to proceed under this statute necessarily demands a showing, by affirmative proof, of an abuse, of discretion, or-an unquestioned neglect of duty, before his conduct may be made the subject of judicial criticism.
The superintendent of the penitentiary was requested to hold such inquisition. He refused. He would not initiate one. His refusal is in writing, and this matter comes to us upon an allegation that he has abused, or, at least, neglected to exercise, whatever discretion may be lodged in him by the statute, and that is the only question we have to determine. The affidavits, though made by men of the highest type and character, do not state facts sufficient to warrant an interference. After a careful consideration of the law argued in the briefs, we are impelled to agree with the trial court.
The judgment is affirmed. | [
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Baker, J.
This is an election contest case. The only question to be determined is the sufficiency of the complaint on demurrer. The complaint alleges in effect that at the Democratic primary election, on August 14, 1934, the plaintiff, appellant here, the defendant, appellee, and Grafton Thomas, qualified electors and residents of White County, qualified and entered the race as rival candidates for the nomination to the office of county and probate- clerk. The names of the plaintiff, the defendant and Grafton Thomas were properly placed upon the official ballots used in the various precincts of the county, to be considered and voted upon for said nomination; that, after said primary election was held on Aug ust 14, returns were duly made under the law and the rules of the party showing the ballots cast in the various precincts of the county.
The Democratic County Central Committee at.its meeting tabulated, totaled and declared and published the returns.
On the face of said returns, said committee found and declared that the defendant received 2,503 votes and the plaintiff received 1,642 votes and the said Grafton Thomas received 1,470 votes. The committee certified that the defendant had received the highest number of votes and plaintiff had received the second highest number cast for the nomination for said office and were therefore eligible and entitled to enter the race in a second primary election to be held on August 28, 1934, under the provisions of act 38 of the General Assembly of 1933, known as the “Bun-Off Primary Act,” to ascertain which of them might receive a majority of all votes cast in said second primary and thereby become entitled to final certification as the nominee for said office as aforesaid.
The names of the plaintiff and defendant were so certified by the chairman and secretary of the said committee and placed upon the official ballots used in said second primary election, to be considered and voted upon ,as rival candidates for said nomination, as in the first primary.
On August 28, 1934, said second primary was held under the rules of the party and the law, and in due time the judges and clerks of said election in the various precincts made returns of the ballots cast in their respective precincts, as required by the rules of the party and the law.
On August 31, 1934, the county central committee met at the court house in the city of Searcy and tabulated, totaled, declared and published the returns as sent in by the various precincts. On the face of said returns, it found and declared that the defendant received 2,190 votes and the plaintiff received 2,114 votes. Said committee then certified that the defendant was the nominee of the party for said office, to be voted upon at the general election.
Plaintiff alleged that, as a result of fraud and errors, the defendant was declared the party nominee when the plaintiff should have been so declared. The contestant further alleged that there were 475 persons having no poll tax receipts issued to them for the year 1933, who, by reason thereof, were totally disqualified to vote in said primary election, but were permitted to vote and did vote in said election, and cast their ballots for the defendant; that all such votes should be declared illegal and void and should be deducted from the number of votes certified in favor of the defendant. Then followed a list of those voting in the separate townships, which list showed the number of the ballot and the name of each alleged disqualified voter.
The second allegation was to the effect that there were 161 persons voting in the election who, if their names were correctly entered on the poll books, do not have poll tax receipts issued to them for the year 1933, although receipts were issued to persons of similar names. That the contestant was not advised as to whether that matter is the result of an error in entering these names on the poll books or in recording their names in the poll tax records, and alleges that they do not have poll tax receipts for the year 1933 legally issued to them prior to June 15, 1934, and that they were not entitled to vote in said primary election; that all of said persons cast their ballots for the defendant; that their votes, being illegal and void, should be deducted from the number of votes certified in favor of the defendant by the Central Committee. The names of the persons were listed.
The plaintiff further alleged that more than 750 persons in the county held illegal poll tax receipts, issued to them for the year 1933 by the collector of White County; that said receipts are illegal because of being predicated upon false and fraudulent assessment lists and because of having been, in most instances, issued after June 15, 1934.
There was a further allegation that through concerted action and collusion of the defendant, who was tax assessor of White County, and the county tax collector, one of his partisan supporters, and other persons associated with them, some eight or nine hundred poll tax assessment lists were made up and entered upon the assessment records of White County; that said assessments were so made without authority from persons whose names were used, and later poll tax receipts were issued upon said illegal assessments and delivered to such of said persons as the defendant and his associates, after investigation, considered friendly to them and likely to cast ballots for the defendant and other candidates for whom said persons, so collusively acting, were interested; that the poll tax receipts were paid for by the defendant and his associates who, like him, were candidates for nomination in said election; that most of said receipts were issued after June 15,1934, and were wrongfully certified by the collector as having been issued prior to June 15, 1934, and, by reason of said false and fraudulent certification, the names of the persons to whom said poll tax receipts were issued appeared in the printed list of qualified electors as among those who were entitled to vote in all legal elections held between July 1, 1934, and July 1, 1935.
Plaintiff further alleged that the defendant agreed to pay, and did pay, $300 into a fund to be used in paying for and distributing said illegal poll tax receipts. The recipients of said illegal poll tax receipts have not paid the defendant and his associates for said poll tax receipts and did not agree to do so.
No list was made of the several hundred alleged holders of illegal poll tax receipts. Contestant alleged that more than 500 of these persons were permitted to vote, did vote in said election, and cast their ballots for the defendant.
He alleged further that in Dogwood township, by error and wrongful certifications, sixteen more votes were certified for defendant and sixteen less votes for plaintiff, than were actually cast for them respectively.
Then followed a prayer wherein the plaintiff prayed the court to find and declare that he received a majority of all legal votes cast for the nomination for county and probate clerk of White County, and that an order be issued, directed to the chairman and secretary of the White County Democratic Central Committee requiring them to certify said nomination as should he done. He prayed an order imppunding the ballot boxes, ballots, tally sheets, poll books and all other papers and records used in holding said primary election and that the same be placed in the custody of some suitable, disinterested person whom the court might select, to be held subject to its orders; that all assessment lists and records pertaining to poll taxes issued for the year 1933, payable in 1934, in the custody of the defendant as assessor of White County, Arkansas, be likewise impounded and placed in the custody of some suitable, disinterested person whom the court might select, to be held subject to its orders; that all records, papers and memorandums in the collector’s office pertaining to the issuance of 1933 poll tax receipts be likewise impounded and put in the custody of some suitable, disinterested person, subject to the orders of the court and for all other proper relief.
The complaint was verified by the contestant and by 22 reputable citizens. It is unnecessary to set forth the oath made by the plaintiff and the supporting affiants, as this is not called into question.
On 'September 12, an amendment to the complaint was filed setting forth the names of some of the persons voting, the townships in which they voted and the number of ballots, with the challenge as to the validity thereof. This statement is sufficient to show the issues.
On September 22 the defendant filed a general demurrer to the effect that the complaint does not state a cause of action under the laws of the State of Arkansas regarding election contests. The court sustained the demurrer and dismissed the complaint.
We think the court was in error in sustaining this demurrer. Contestant alleged that he received 2,114 votes and that the contestee had received 2,190 votes. There was a difference between the number of votes they received, as certified, of only 76 votes. The contestant did not say that the votes he had received were “legal votes.” Upon this failure to plead that fact, the demurrer is based. An analysis of this complaint will demonstrate that was unnecessary. He was not impeaching the votes he received in any particular, except in the fourth division of the complaint he alleged that he was entitled to sixteen more votes, received in Dogwood township, than had been certified for him, and otherwise he was treating the number of votes he received, and which were certified to him by the county democratic central committee, as being the total number of votes to which he was entitled. The other portions of the complaint differ somewhat from the usual complaint filed in election contests. He alleged that his opponent received a considerable number of votes that were illegal, specifically pointing out all such illegal votes in every instance except one, but he did not claim that these illegal votes should be credited to him, or be counted for him, but only that they should be deducted from the number of votes received by the contestee. For instance, he alleged that there were 475 persons, whose names were listed by township and ballot number, who were not qualified to vote and asserted that they did vote for the contestee. If this statement, as alleged, is correct and can be proved, then the number of 475 votes should be deducted from the number of votes certified to the contestee. The fraud charged was alleged to have taken place at the voting precincts as distinguished from a chargé of error or bad faith of the election officers.
The contestant did plead the number of votes received. He alleged affirmatively that there should have been certified to him sixteen more votes. For consideration upon the demurrer, it must be conceded he did receive 2,130 votes and that they were legal.
In Tucker v. Meroney, 182 Ark. 681, 32 S. W. (2d) 631, the court said: “We do not agree with contestant in this contention. The official returns of the election are quasi records, and are prima facie correct. The burden is upon the contestant to show by affirmative proof that they do not speak the truth.”
In the case of Morrow v. Strait, 186 Ark. 384, 53 S. W. (2d) 857, the court said: “The official returns of the election are prima facie correct, and the burden of showing that they are not correct rests upon the person who alleges that fact.”
Under the authority of these two cases, we have no hesitancy in holding that there is an affirmative allegation that the votes received by the contestant were leg'al votes, though the word ‘ ‘legal” is not used; but his pleading is susceptible of no other interpretation.
There is also the allegation that this number of votes contestant received, as certified, is substantially in excess of the number of ‘ ‘ legal ’ ’ votes received by the contestee, so it must be seen that the contestant alleged, at least, a prima facie case. Contestant had the right, after the issues were made up, and could have been required by proper motion to file a list of names of voters whose names had been omitted as among those whose votes were challenged. We held this in the ease of Winton v. Irby, ante p. 906.
We but recently said in effect that the statute providing for contesting elections should be liberally construed; that the purpose of the contest is to determine what candidate received the greatest number of legal votes, and if there are sufficient facts stated to give the other party reasonable information as to the grounds of the contest, then the case should be tried on its merits. LaFargue v. Waggoner, ante p. 757. We also said in the same case that the rule relating .to pleadings must not be so strict as to afford protection to fraud, by which the will of the people is set at naught.
The court said in the same case: “The statute does not require supporting affidavits of the citizens to these permissible amendments. These amendments may be made without the supporting affidavits and after the expiration of the original ten days, when unreasonable delay in the trial of the cause will not result therefrom.”
In Winton v. Irby, supra, we said: “The real issue is, which candidate received a majority of the legal votes cast? If his competitor was ineligible, this would not entitle the contestant to receive the certificate of nomination, unless the contestant received a majority of the legal votes.
The instant case is peculiar in one respect, and that is that the candidate relies on the certificate of the Democratic County Central Committee as to the number of votes received by liim, but impeaches, by his complaint, the count in favor of his opponent and alleges that his opponent, the contestee, did not receive the number of legal votes as certified by the committee.
Whole we do not think that it is absolutely essential to the trial of the cause that the amendment offered by the contestant after the demurrer was sustained should be filed, but, since it adds no new cause of action, and only states the result or effect of the matters already pleaded, it was not improper. It was helpful, however, to file it, as it did aid, by way of explanation or amendment, the pleadings already filed, and upon which the issue, by demurrer, was raised.
We held in the case of Winton v. Irby, supra, that it was proper to permit the contestant to amend his complaint after the ten-day limit, by filing the list of names of the voters whose ballots were challenged. Such amendment did not set up any new cause of contest. The amendment was only explanatory of matters already, perhaps, somewhat imperfectly pleaded.
It follows that the judgment should be reversed. It is therefore ordered that the judgment be reversed with directions to overrule the demurrer, and permit the cause to proceed to trial upon its merits. | [
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Butler, J.
The appellant Crowe owned 314 acres of land in Prairie County, and Davidson 160 acres of land in Mississippi County, which they agreed to exchange according to the terms of a contract entered into on May 10, 1930. According to this contract, each was to convey to the other their respective lands by warranty deed, their wives joining therein, with the release of dower and homestead. Davidson agreed to convey an unincumbered title and to assume the payment of a $7,000 mortgage on the lands Crowe was to convey to him in exchange for his Mississippi County lands. It was further agreed that, after the execution of the deeds, Crowe was to retain possession of the Prairie County lands for the years 1930 and 1931 “rent free” and also for the year 1932, but for the use of the- land for the last year he was to pay $3',600, to be evidenced by note executed and delivered not later than January 1, 1932, bearing interest from maturity at the rate of six per cent, per annum.
Crowe conveyed his lands to Davidson as contracted. Davidson also executed and delivered his warranty deed to the Mississippi County lands and assumed the payment of the $7,000 mortgage, but his wife did not join in the execution of the deed and release her rights of dower and homestead. The Mississippi County lands, at the time of the exchange of deeds, had been rented by Davidson for the years 1930 and 1931, tenants then being in possession. They had executed rent notes for the rent of the land for these years and these notes, amounting to the sum of $3,200, were delivered by Davidson to Crowe at the time of the transfer.
Crowe failed to execute the $3,600 note, although he retained possession of the Prairie County lands throughout the year 1932, whereupon Davidson brought this suit in the chancery court of Mississippi County for the collection of the $3,600, and to subject the lands in that county which had been conveyed to Crowe to the payment of the amount sued for.
Crowe filed a petition in this court for a writ of prohibition challenging the jurisdiction of the court on the theory that the action was one merely to enforce the collection of a debt and properly triable in Arkansas County, the county of his residence where he was served. On the hearing, the prayer of the petition was denied, this court holding that the complaint stated a cause of action on a demand or interest in lands lying in Mississippi County, and that the chancery court of that county had jurisdiction. Crowe v. Futrell, 186 Ark. 926, 56 S. W. (2d) 1030. Subsequent to this ruling, the defendant Crowe, filed answer renewing and preserving his challenge to the jurisdiction of the court, admitting his execution of the contract and the deeds, but pleading the failure of plaintiff’s wife to execute the release of dower and homestead. He alleged that, because' of this, the contract was changed and modified by defendant’s letter of June 6, 1930, accepted by plaintiff, to the effect that the wife’s signature was waived, and in consideration therefor it should be optional with defendant whether he make the note for $3,600, and, if he should elect not to make the same, plaintiff should pay to him $400 and take possession of the Prairie County lands January 1, 1932.
Davidson, in support of the allegations of his complaint, testified that Crowe voluntarily waived the signature of Mrs. Davidson and executed an affidavit by the terms of which he made such waiver and agreed that the failure of Davidson’s wife to execute the release of dower and homestead would not be deemed to be a breach of the contract.
Crowe testified that when he learned through his agent, a Mr. Price, who resided near Mr. Davidson in Illinois, that the latter could not procure the signature of his wife, that he (Crowe) wrote a letter addressed to Mr. Davidson of date June 6, modifying the contract as alleged in his answer, and sent same through the mails to his agent in Illinois with directions that it be given to Davidson. Price testified that he received the. letter and gave it to Davidson who assented to the modification.
The court found the issues of fact in favor of Davidson, gave judgment for $3,600' with interest from December 1, 1932, until paid, and held that the agreement to execute said note was a part of the consideration for the transfer by Davidson of the lands in Mississippi County to Crowe and fixed a lien on these lands to secure the payment of the judgment with directions that, if same was not paid within the time named, the lands be sold to satisfjr the same.
On appeal there are two questions presented; first, that the finding of the trial court was against the preponderance of the testimony. On this branch of the case it will be noted that Crowe does not know and did not say that his letter of June 6, 1930, was in fact delivered to Davidson and its modification of the contract accepted by him. Price is the only witness who testified to these facts, and his statement is flatly contradicted by Davidson. The appellant argues that there must have been some consideration for the waiver of the wife’s release of dower and homestead; that none has been shown by Davidson, who is interested in the result, and that Price is not. The majority of the court is of the opinion that the finding of the trial court cannot be said to be against a preponderance of the evidence. The contract is unusual, and on its face appears highly advantageous to Crowe. He was getting a farm of 160 acres of land in Mississippi County free from any incumbrance, already rented for the years 1930 and 1931. The rent notes had been given him. For this he was exchanging a farm containing 314 acres incumbered by a $7,000' mortgage which he was to have “rent free” for two years. In view of the favorable terms above, it might be that he was quite willing to waive the release of dower and homestead.
The court’s finding that the contract had not been modified leaves the contract of May 10,1930, unimpaired. It was introduced in evidence and supports the allegations of the complaint. On the question of jurisdiction, the important paragraph of the contract, after reciting the description of the lands in Mississippi County then belonging to Davidson and his agreement to convey the same free of all incumbrance, provides: “That, for and in consideration of said conveyances, the said party of the second part agrees to convey to the party of the first part the” [describing lands] “subject however to a Government loan in the sum of $7,000 which the party of the first part assumes and agrees to pay provided however, the said party of the second part is to keep and retain possession of said Prairie County land above described for the years 1930 and 1931, rent free, and further as part of the consideration of this exchange of properties, the party of the second part agrees to rent or lease said Prairie County land from the party of the first part for the year 1932 in the sum of-$3,600, same to be evidenced by a note to be executed and delivered, not later than January 1,1932, -bearing interest from maturity at the rate of six per cent, per annum until paid, said note to be paid in the State Bank of Blue Mound, Illinois. ’ ’
The appellants contend that the contract was fully consummated and carried out when the deeds were exchanged. They call attention to the fact that the granting-clause in the deed from Davidson to Crowe contains no reference to the note to be given January 1,1932, as part consideration, and argue therefore that the recitals of the deed must govern as to what in fact was the consideration. It is well settled that the recitals as to the consideration in a deed are not conclusive, but are subject to explanation, contradiction or modification. Pate v. Johnson, 15 Ark. 275; Hildebrand v. Graves, 172 Ark. 198, 288 S. W. 4. Then too, this court has virtually decided in the case of Crowe v. Futrell, supra, that the $3,600 was a part of the consideration and, indeed, that is the express language of the paragraph of the contract which we have quoted. The entire consideration was the exchange of the lands, the assumption of a $7,000 mortgage by Davidson, and the agreement by Crowe to pay $3,600. It took all of these things to constitute the entire consideration. This court, in Crowe v. Futrell, supra, said: “In the suit brought in the Mississippi Court, the plaintiff alleged that this $3,600 was a part of the consideration, that it had not been paid, and that he was entitled to a lien on the lands in Mississippi County to secure the payment. If this was a part of the consideration entitling- the plaintiff in the case to a lien on the lands in Mississippi County, the court had jurisdiction.”
Since the execution of the contract quoted from was admitted and the court found that the same had not been modified and changed, it follows that the decree is correct, and must be affirmed. It is so ordered. | [
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Kirby, J.,
(after stating the facts). Appellant insists that the policy of insurance was avoided because the insured in his application therefor wilfully and knowingly made misrepresentations with the intent to deceive the company as to his physical condition. There is no evidence here, however, directly tending to show any such representations, or that such misrepresentations had been wilfully and knowingly made as to his physical condition. Three witnesses, two of them disinterested, testified that insured was in apparent good health both at the time the application for insurance was made and at the time of the delivery of the policy; that the insured weighed at that time from 165 to 170 pounds. The agent of the company who delivered the policy also stated that insured was in apparent good health at that time.
A misrepresentation will not avoid the policy unless wilfully or knowingly made with intent to deceive. Wilbon v. Washington Fidelity National Ins. Co., 182 Ark. 57, 29 S. W. (2d) 680; Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101, 150 S. W. 393.
The burden was upon appellant to show that false and material representations, which induced the issuance of the policy, were made to it by the insured knowingly and wilfully and with the intent to deceive the insurer; but appellant not only failed to discharge the burden, but the preponderance of the testimony appears to support the proposition that insured was in good health at the time of the making of the application and the delivery of the policy.
No error was committed in excluding the testimony of Helen Robinson of the general hospital and Elizabeth Kellogg of the county hospital about the records of deceased in both these hospitals. Both testified that they were merely custodians of the records in the respective hospitals; that the records were made by the doctors and nurses; and that their duty consisted in placing them in the files. No reason was given why the doctors and nurses were not able to testify, and they were the proper parties to do so, and the records were properly excluded. The excluded evidence, if admitted, would have been merely cumulative, to the testimony of Drs. May and Whitehead, whose testimony was introduced, and would have served merely to bolster it up. If the records were admissible, they should have been introduced by the parties who made them, so that appellee could have the opportunity to cross-examine the witnesses upon the items therein. Roberson v. Roberson, 188 Ark. 1018, 69 S. W. (2d) 275.
The waiver signed by the insured, relative to the production of testimony by physicians and nurses, did not remove tlje restrictions imposed upon the above witnesses under § 4149, Crawford & Moses’ Digest, since they were neither physicians nor nurses and made no records of any kind in the case.
There is no testimony or evidence showing that the insured knew that he. had tuberculosis before making the application and receiving the policy from appellant company; and it was a question for the jury to determine whether fraud was practiced on the appellee in securing the release, and same has been decided against the appellant. Harper v. Bankers’ Reserve Life Co., 185 Ark. 1082, 51 S. W. (2d) 526.
The settlement was obtained by taking the beneficiary by surprise and requiring her to act at once, without having the. policy in her possession or learning' its provisions and without an opportunity to take legal advice or ascertain the facts. Order of Commercial Travellers v. McAdam, 125 Fed. 358, 61 C. C. A. 22.
The case was submitted under instructions to which there were no objections; the testimony is amply sufficient to support the verdict; and, finding no error in the record, the judgment is affirmed. | [
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Johnson, C. J.
On the threshold of this case we are confronted with the contention, advanced by appellee, that appellant’s contentions, as evidenced in the motion for new trial, cannot here be considered for the reason that said motion was filed without the time given by § 1314, Crawford & Moses’ Digest, of the laws of Arkansas. Although this contention presents a very serious question, it relates to this case only. Therefore we pretermit consideration or determination thereof, because the case must be affirmed on its merits.
In 1924 appellant issued and delivered its contract of insurance to one William F. Felton, by the terms of which it agreed to pay the sum of $5,000 in the event of death and, in addition thereto, agreed:
“Total and Permanent Disability
“(1) Disability benefits before age 60 shall be effective upon receipt of due proof, before default in the payment of premium, that the insured became totally and permanently disabled by bodily injury or disease, after this policy became effective and before its anniversary upon which the insured’s age at nearest birthday is 60 years, in which event the society will grant the following benefits :
“ (a) Waive payment of all premiums payable upon this policy falling due after receipt of such proof and during the continuance of such total and permanent disability; and
.“(b) Pay to the insured a monthly disability-annuity, as stated on the face hereof; the first payment to be payable upon receipt of due proof of such disability and subsequent payments monthly thereafter during the continuance of such total and permanent disability, provided, that, if this policy is continued under the endowment conversion option, the disability-annuity shall continue only during such total and permanent disability until the maturity of the endowment.”
The insured died on March 19, 1933, and the death benefit, as provided in said contract, has been paid. The controversy here arises under the total and permanent disability clauses heretofore quoted.
It is admitted by appellant that William F. Felton, the insured, became totally and permanently disabled, in the purview of the contract of insurance, in May, 1930. Therefore there is no contention of no liability on this account.
However, it is earnestly contended by appellant that liability should be restricted to the sum of $48.06, same being the amount which accrued after the filing of proof of total and permanent disability, which occurred on March 10, 1933, and the death of the insured.
By invitation of the plaintiff in the court below, and appellee here, the case was tried upon the theory that the insured became mentally incompetent or insane in May, 1930, upon the occurrence of total and permanent disability, and was therefore excused from giving notice or filing proof of such disability with the insurer during the period of such disability. Much evidence was adduced upon this branch of the case. Even so, appellant contended below and contends here that the< evidence offered was not sufficient to warrant submission to the jury of the issue of insured’s mental condition. The evidence tended to establish the following facts:
That prior to May, 1930, insured was strong and alert in body and of robust health; that he was mentally sound and alert; that suddenly he was beset with vertigo, blindness, dizzy spells and frequent lapses of consciousness which continued up to his death; that he ignored advice of attending physicians to desist from all labor, and, on the contrary, continued his efforts though resulting in a waste of time and energy; that he assumed an attitude of coolness and indifference towards his family which had not existed prior to May, 1930; that he advised his son that his mind was impaired and directed him to remove and hide the firearms from their accustomed places; that he could not carry on an intelligent conversation, in that he would suddenly leave the subject and jump to another; that he seriously objected to his son submitting his policies of insurance to an attorney for legal advice because he feared that it might destroy his insurance. The attending physician testified, in effect, that during the period from May, 1930, up to the death of the insured his mind was confused, and when asked: “Q. Would you say from your association with Mr. Felton, and your treatment and observation of bim, that the mental impairment was such that he conld not transact the ordinary affairs of life? ’’ stated: ‘£A. I don’t believe. I conld answer that question yes or no, because the question of his judgment and the question of his reason would come into it; he could transact it but he might transact it wrong.”
On the evidence thus adduced, appellant requested a directed verdict in its behalf, which was refused by the trial court, and thereupon the cause was submitted to the jury under the following instructions. For appellee, request No. 2, as follows: “If you find from a'preponderance of. the evidence that during the period between May, 1930, and the date on which the said William F. Felton died, he was, by reason of disease and illness, mentally impaired to the extent that he was incapable of carrying on the ordinary affairs of life; and was incapable mentally of such sustained effort as would enable him to comprehend such affairs as needed his attention, then you are instructed that his failure to give the defendant notice of such disability would not bar the right of the plaintiff to recover in this action.”
For appellant, the following requests:
“No. 3A. You are instructed that proof of the inability to perform the ordinary affairs of life, does not entitle the plaintiff to recover. In order to recover more than the amount admitted to be due, the plaintiff must show that the insured did not have mentality enough to understand the ordinary things and affairs of life.
“No. 4. If you find from the evidence that in May, 1930, the insured, William F. Felton, became disabled by physical disease, but that his mind was not continuously impaired from that date until the time of his death, but on the contrary he had during a substantial portion of that time sufficient mental capacity to understand the ordinary affairs of his life, then he would not be entitled to recover disability benefits except for the month which intervened between the receipt of the proofs of disability and his death.
“No. 5. You are instructed that an intermittent inability to comprehend the ordinary affairs of life would not excuse the insured from furnishing proofs of disability. If at intervals he had control of his faculties for considerable periods to such an extent that he could understand the ordinary affairs of life, then the plaintiff would be entitled to recover only for the period which commenced with the time when he became continuously unable to comprehend the ordinary affairs of life.
“No. 7. You are instructed that the plaintiff would not be entitled to recover the disability benefits for the period during which he Avas capable of exercising the sustained mental effort which Avould enable him to understand and comprehend the ordinary affairs of life. If he did not reach this stage of mental impairment until sometime subsequent to May 30,1930, then your verdict should in no event be for an amount which would exceed the amount of the premiums paid, if any, the disability benefits which accrued during such period of mental impairment as above described.”
In reference to the status of mentality, which would excuse an insured from giving notice to the insurer or filing proof of such total and permanent disability, we stated the rule in Pfeiffer v. Missouri State Life Ins. Co., 174 Ark. 783, 297 S. W. 847, as follows:
“He must have been able to carry on the ordinary affairs of life, and this meant that his mind must be capable of sustained effort, so that he would comprehend such affairs as needed his attention, and not merely that he might talk Avith seeming intelligence upon a subject brought directly to his attention by some one. ’ ’
Appellee’s requested instruction No. 2 conformed to the rule as announced above, and we think it is a correct guide in cases of similar import.
Neither can we agree that the evidence Avas not sufficient to submit the mental condition of the insured to the jury. Under the settled practice in this court; it is our duty to sustain the jury’s findings when supported by substantial evidence. When thus considered, we cannot say that the verdict of the jury is without substantial evidence to support it.
The contention that the instructions given upon request of appellant are in conflict with those given upon request of appellee is likewise without merit. Appellee’s instruction No. 2 is easily harmonized with appellee’s requests 3A, 4, 5 and 7. These instructions, when read together, conform to previous decisions of this court even though they present different theories as reflected by the evidence. Lastly, it is contended that appellee’s instruction No. 3 is in conflict with appellant’s requested instruction No. 7 heretofore quoted. Appellee’s, requested instruction No. 3 is as follows:
“If you find for the plaintiff under instruction No. 2, you will find a verdict for disability benefits at the rate of $48.06 per month from June, 1930, to March, 1933, inclusive, a period of thirty-three (33) months, an aggregate sum of $1,585.98; and you will also find a verdict in favor of plaintiff for premiums paid by plaintiff’s intestate on August 14, 1932, and February 14, 1933, in the aggregate sum of $1,222.40.”
Viewed from appellee’s theory of the case, this instruction was a correct declaration of law, and, conceding that it is in conflict with appellant’s instruction No. 7, it avails appellant nothing, because, if error, it was invited. St. L.-S. F. Ry. Co. v. Cole, 174 Ark. 10, 294 S. W. 357.
Moreover, if we are in error in all the conclusions heretofore stated, this case must be affirmed for still another reason. Appellant admits that William F. F'elton, the insured, became totally and permanently disabled in the purview of the contract of insurance in May, 1930, and that this total and permanent disability continued until his death in March, 1933.
We have repeatedly held, in cases arising under contracts of insurance not dissimilar to the one here involved, that liability against the insurer and in favor of the insured attaches and comes into being- upon the happening- of total and permanent disability. Smith v. Mutual Life Ins. Co., 188 Ark. 1111, 69 S. W. (2d) 874. Also Ætna Life Ins. Co. v. Davis, 187 Ark. 398, 60 S. W. (2d) 912; Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335. See especially Missouri State Life Ins. Co. v. Case, ante p. 223, wherein all our previous decisions are reviewed on this subject. Under the plain terms of the contract here under consideration, recovery is not limited or postponed to or by any certain contingency, as was the contract in Smith v. Mutual Life Ins. Co., supra, and other cases there cited. In the contract here under consideration liability attached in May, 1930. The requirement for proof of loss or notice under this contract, being a condition subsequent, suit might be maintained for the liability at any time until barred by the statute of limitations. Ætna Life Ins. Co. v. Davis, supra; Missouri State Life Ins. Co. v. Foster, 188 Ark. 1116, 69 S. W. (2d) 869. Under the view as thus stated, the trial court might have directed a verdict in favor of appellee for the amount sued for.
The judgment is affirmed. | [
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Kirby, J.,
(after stating the facts). It is not questioned that the certificates were issued under the group policies to appellant and were both in force at the time he sustained the injury which necessitated the amputation of his left leg below the knee. The accidental dis memberment policy provided that the loss of one foot, the severance at or above the anide, should entitle the insured to $500, and appellee presented a claim under this certificate soon after the accident, and the same was paid by the company.
Subsequently, appellee presented a claim under the certificate which provided benefits in the event of total and permanent disability. The appellant denied the claim because it did not consider the insured totally and permanently disabled within the meaning of the provisions of the policy hereinabove set out.
The policy by its terms did not provide occupational insurance, or that the insurer would become liable if the insured became unable to perform the duties of his occupation of brakeman; but provided that insured, to be entitled to recover under said certificate, must show that he “is unable to perform any work for any kind of compensation of financial value during the remainder of his lifetime.”
There is no doubt about the injury suffered by the insured being permanent; and appellant’s only insistence is that the testimony is insufficient to support the allegation that said injury is total. It will suffice to say, however, that the instructions given by the court are not. complained of here, and were in accordance with the doctrines of this court as announced in Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457; Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335 ; Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; and Mutual Benefit Health & Accident Ass’n v. Bird, 185 Ark. 445, 47 S. W. (2d) 812.
Insured testified that he was 47 years of age; that his leg was amputated about 9 inches below the knee joint; that he was unable to perform any kind of work for gain or profit; that he had railroaded all his life and had no knowledge of any other vocation nor sufficient education or training to follow any profession.
It is true the disability or injury suffered by the insured did' not constitute of itself a total and permanent disability within the express provisions of the policy, but said policy also provides: “If any person insured under this policy shall become totally and permanently disabled, either physically or mentally, from any cause whatsoever, etc., * * * the company, upon receipt of due proof of such disability, will grant the following benefits: ’ ’ Said policy also recognizes certain injuries to be permanent and total disabilities.
The jury had the insured before it, saw his condition and necessarily knew somewhat about the question of his disability from its own information and experience acquired through association with its fellowmen; and under our Constitution it was exclusively within the jury’s province to determine the question under the circumstances of this case. Having done so, and there being material testimony to support its verdict, the judgment thereon will not be disturbed. Affirmed.
Smith, McHaney and Butler, J J., dissent. | [
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Mehaffy, J.
W. D. McCann filed suit in the Clark Circuit Court against the Sparkman Hardwood Lumber Company, a corporation created by the laws of this State, and summons was served on W. L. Huie of Arkadelphia, Clark County, Arkansas. The. Sparkman Hardwood Lumber Company filed a motion in the Clark Circuit Court to quash summons and service, appearing specially for that purpose and for no other purpose, alleging that it had no place of business in Clark County, Arkansas, and did no business therein, that its chief officer did not live or reside, in Arkansas or Clark County, and stated specifically that W. L. Huie was not its chief officer. A hearing was had upon said motion and the testimony of Eugene E. Fohrell, W. L. Huie and W. D. McCann was introduced. The circuit court overruled the motion to quash. After the motion to quash was overruled, petitioner filed its petition in this court, praying that the summons and service thereof be quashed, and that said circuit court be prohibited from proceeding further therein.
Petitioner’s place of business is in Dallas County, Arkansas, and it has no place of business in Clark County and does no business in Clark County. Eugene E. Fohrell, secretary of the petitioner, lives in Dallas County. Edwin Schaff, the president, lives in Missouri, and W. L. Huie, vice president, lives in Arkadelphia, Clark County. The president, Schaff, only visits the place five or six times a year; vice president Huie goes to the place of business every day from his home in Arkadelphia.
Section 1171 of Crawford & Moses’ Digest, reads as follows: “An action, other than those in §§ 1161, 1165, against a corporation created by the laws of this State may be brought in the county in which it is situated or has its principal office or place of business, or in which its chief officer resides; but if such corporation is a bank or insurance company, the action may be brought in the county in which there is a branch of the bank or agency of the company, where it arises out of a transaction of such branch or agency.”
It is not contended that the petitioner has any place of business in Clark County and service of summons in Clark County would.not be proper service unless W. L. Huie is its chief officer. The statute expressly provides that the suit may be brought against a corporation in the county in which its chief officer resides. It is admitted that W. L. Huie resides in Clark County where he was served, therefore the only question before the circuit court was whether W. L. Huie was its chief officer.
Eugene E. Fohrell testified, in substance, that he was secretary of the petitioner, and, in addition to being secretary of the company, he was manager; that it was part of Ms duty to see to the entire operation of the company. He resides in Dallas County. Had charge of the clerical details as well as the physical management of the plant. The president of the company, Mr. Edwin Schaff, resided in Missouri and spent five or six days a year in Dallas County. That Mr. Huie was vice president, and there were no other officers of the company. That he was in actual charge of the handling of the business. Mr. Huie resides in Clark County; he spent practically all of his time at the plant, he would drive back and forth from Arkadelphia. He testified that he was the acting manager authorized by resolution of the board of directors. The board of directors gave him authority. He did not have a copy of the resolution; it was not introduced in evidence. He remembered selling some land, and the deed was introduced in evidence. It showed the signature of Sparkman Hardwood Lumber Company by W. L. Huie, vice president. Attest: Eugene E. Fohrell, secretary. There was a resolution introduced showing appointment of Fohrell as agent for service in Arkansas. This resolution was signed b.y W. L. Huie as vice presir dent and Fohrell as secretary. Witness signed checks, Huie did not. They had sold some timber, and he did not know who signed the instrument. Hp to about tw;o_ years ago, North was vice president and Huie was secretary. Witness and Huie are the only two officers of the company who resided in the State. When North was vice president, he was general manager. Later, Mr. Huie was made vice president but not manager. Huie testified that he was vice president and Fohrell was secretary, and that his general duties were to obey orders. He had charge of the books, but Fohrell performed the duties of general manager. Fohrell had supervision over logging operations and activities of .the mill. ' That he was not Fohrell’s boss or superior; he did anything Mr. Fohrell told him to do. He signed the deed as vice president. He also testified that Fohrell was authorized to sign deeds. He did not know whether there was a resolution of the board of directors or not. His testimony and Fohrell’s were substantially the same as to their authority. He-did not know whether Fohrell ever signed a deed or not and did not know how many deeds had been made and did not remember whether he signed them all, bnt said he had authority to do so.
The plaintiff, W. D. McCann, testified in substance: “That Huie was the boss down there, that whatever he said seemed to be the last word; he had been boss for the last seven or eight months. Huie sent lumber to witness at different places, and sent witness to different places to haul logs. If witness wanted to carry lumber to the woods to fix a bridge or wanted to go log hauling or anything, he generally went to Mr. Huie.
The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. When the court has jurisdiction over the subject-matter and the question of its jurisdiction of the person turns upon some fact to be determined by the court, its decision that it has jurisdiction, if wrong, is an error, and prohibition is not the proper remedy.” Order of Ry. Conductors of America v. Bandy, 177 Ark. 694, 8 S. W. (2d) 448; Merchants’ & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. (2d) 421; Lynch v. Stephens, 179 Ark. 118, 14 S. W. (2d) 257; Roach v. Henry, 186 Ark. 884, 56 S. W. (2d) 577; Crowe v. Futrell, 186 Ark. 926, 56 S. W. (2d) 1030.
Witness Fohreli testified that a resolution was adopted by the board of directors prescribing his duties. When one relies on any written instrument and fails to produce the instrument, the presumption is that the production of the instrument would disprove his contentions. The resolution adopted by the board of directors would have settled the question before the court. Petitioner knew this and alleged in his motion to quash that Huie was not the chief officer, but it did not produce the resolution which it had.
“Where it is apparent that a party has the power to produce evidence of a more explicit, direct and satisfactory character than that which he does introduce and relies on, it may be presumed that, if the more satisfactory evidence had been given, it would have been detrimental to him, and would have laid open deficiencies in, and objections to, his case which the more obscure and uncertain evidence did not disclose. * '* * Mere withholding or failure to produce evidence, which, under the circumstances would be expected to be produced, and which is available, gives rise to a presumption less violent than that which attends the fabrication of the testimony or the suppression of documents in which other parties have a legal interest; but the courts recognize and act upon the natural inference that the evidence is held back under such circumstances because it would be unfavorable.” Miss. River Fuel Corp. v. Young, 188 Ark. 575, 67 S. W. (2d) 581; Ramey v. Fletcher, 176 Ark. 196, 2 S. W. (2d) 84.
We have many times held that if the existence or nonexistence of jurisdiction depends on contested facts which the inferior court is competent to inquire into and determine, a writ of prohibition will not be. granted, although the superior court should be of the opinion that the claims of fact had been wrongfully determined by the lower court, and, if rightfully determined, would have ousted the jurisdiction.
In the instant case, as we have already said, whether Huie was the chief officer of the petitioner was a contested question of fact which the lower court had jurisdiction to hear and determine, and we have many times held that the finding of the court on questions of fact will not be disturbed by this court if there is any substantial evidence to support the finding of the lower court. In other words, we do not pass upon the credibility of. the witnesses nor the weight to be given their testimony; this is the province of the trial court, and his finding based upon substantial evidence is conclusive here. The writ is therefore denied. | [
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Humphreys, J.
Appellants became the owners of a note and mortgage executed by W. H. Ferguson and wife to the Conservative Loan Company on January 25, 1931, and maturing on October 1, 1931. The land described in the mortgage as security for the debt is as follows:
Southwest quarter of the southwest quarter of section 35, township 8 south, range 28 west; the northwest quarter of the northeast quarter of section 2, township 9 south, range 28 west, situated in Howard County, Arkansas.
Appellant E. L. Carter, in his capacity as trustee, became the holder of a note and second mortgage executed by W. H. Ferguson and wife upon the same real estate.
Subsequently, W. H. Ferguson and wife executed a third mortgage upon the same lands to the Planters’ Bank & Trust Company to secure an indebtedness of $800 to it.
On July 19, 1933, the Planters’ Bank & Trust Company purchased a deed to the southwest quarter, southwest quarter, section 35, township 8 south, range 28 west, 40 acres, and the fractional northwest quarter, section 2, township 9 south, range 28 west, 145.01 acres, in Howard County, Arkansas, which had been forfeited for the nonpayment of taxes for the year 1930, said lands being a part of those described in the mortgage.
Appellants brought suit on July 19, 1933, in the chancery court of Howard County to foreclose the first and second mortgages and to obtain judgment for the amounts due on the indebtedness which each mortgage secured and made the State Bank Commissioner in charge of the Planters’ Bank & Trust Company a party to the suit, alleging that his interest was inferior to the mortgages held by the appellants. They alleged that the tax sale under which the State acquired title to a part of the lands described in the first and second mortgages was void.
The notes and mortgages were introduced, together with proof of the amount due upon each note. The records of the delinquent list of lands in the clerk’s office as advertised for sale were introduced in evidence without objection and are as follows:
Much evidence was introduced responsive to other allegations contained in the complaint of the invalidity of the tax sale which need not be set out and discussed, as we have concluded that the tax sales of the lands in question were void and that on that account the State acquired no title to them which it could convey to the Planters’ Bank & Trust Company. The original complaint and the amendment thereto did not specifically allege the invalidity of the tax sale on the ground of the insufficient description of the lands, but, at the conclusion of the testimony, they asked to amend their complaint in this particular. The court refused to allow the amend ment or treat the complaint as amended to conform to the proof, which was error.
On a hearing of the cause, the court rendered a judgment for the amount due on the notes and entered a decree of foreclosure in favor of appellants against the northwest quarter, northeast quarter of section 2 aforesaid and found that, the tax sale was valid and quieted the title to the other lands described in said mortgages in appellee.
Appellants have 'prosecuted an appeal to this court from that part of the decree upholding the validity of the tax sale.
By reference to the list of delinquent lands set out above, it will be seen that no dittos appear opposite any of the lands listed and involved in this suit, and that there was a duplication in the assessment and sale of a part of the fractional northwest in what was supposed to be land in section 2, township 9, range 28 west. It appears that the northwest, northwest, 31 acres, was sold for a total tax of $7.32, and then that the entire fractional northwest 145.01 acres, was sold for $26.90, which was $7.32 more than the entire quarter should have been sold for. This rendered the sale of the entire quarter void.
On account of the error indicated, the decree is reversed, and the cause is Remanded with directions to also enter a decree of foreclosure in favor of appellants on the southwest quarter, southwest quarter, section 35, and the northwest quarter of section 2, all in township 9 south, range 28 west, in Howard County, Arkansas. | [
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Butler, J.
On the 7th day of February, 1934, Mrs. II. Y. Glenn filed a suit against Studebaker Corporation of America and others, the same being case No. 96 in the first division of the circuit court of Poinsett County, Arkansas, Subsequent to the filing of this suit, and after certain preliminary matt.ers were attempted to be had in the second division of the circuit court of that county, Mrs. Glenn filed her petition in this court for a peremptory writ of mandamus in which the Hon. Neil Killough, one of the judges of the circuit court of Poinsett County, was made respondent. The petition alleged the filing of the suit and, in effect, that on March 3, 1934, the defendants gave notice to the plaintiff that on March 5, 1934, there would be presented to the Poinsett Circuit Court defendants’ petition and bond for the removal of said cause to the United States District Court; that said cir cuit court convened on March 5, 1934, in regular session, and on that date counsel representing the defendants appeared and announced that he desired to be heard upon the petition and bond for removal which he had on that day filed in said court, having given notice to opposing counsel of such intention; that thereupon the Hon. Neil Killough, the presiding judge, advised Marvin P. Watkins, one of counsel for plaintiff, and Martin Fulk, counsel for defendant, that he had no jurisdiction to take any steps in the cause pending in-the first division of the Poinsett 'County Circuit Court, which position was maintained by the court despite the insistence of Fulk that the court should rule upon his petition. Thereupon, the defendants, through said counsel, moved the court for permission to strike from the files of the cause the petition and bond for removal; that the court then directed the clerk to hand to the defendants’ attorney said bond and petition, and, pursuant to defendants’ motion, took his pen and struck the filing marks from said petition and bond and directed the clerk to permit the withdrawal of the same and surrendered them to defendants’ counsel. The petitioner further alleged that the docket and record in said cause do not reflect the motion of the defendant Studebaker Corporation to strike said pleadings and for leave to withdraw their bond and petition for removal, nor do they reflect the order of the court made upon said motion. It is alleged that the motion aforesaid and the order of the court made pursuant thereto results in the entry of the general appearance of the defendants in that cause. The petitioner further alleged that, subsequent to the aforesaid proceedings, to-wit, on March 13, 1934, she presented to the Poinsett Circuit Court, still functioning in regular session, her motion to enter upon the docket in said cause its order made on March 5th permitting the defendants to withdraw the petition and bond for removal and to reflect upon the said docket that the order sought to be entered was made upon motion of defendants for leave to withdraw said petition and bond, and that the same were withdrawn and delivered to defendants ’ counsel pursuant to his motion. The petitioner further alleged that the docket in the action failed to reflect the proceedings had by the defendants in said court and that she is entitled to have the facts reflected by the record and to have the Poinsett County Circuit Court take jurisdiction for the purpose of trial; that, while in regular session as aforesaid, she presented to the Hon. Neil Killough, presiding judge of the court and the respondent named in her petition, her motion for judgment by default in said case No. 96, being entitled thereto for the reason that more than twenty days had elapsed since the issuance of the summons and that defendants had appeared generally in the cause, and, having failed to file any pleadings, she was entitled to the judgment prayed and the impaneling of the jury to assess her damage; that said presiding judge refused to take jurisdiction in the cause and neither granted nor denied said motion, although, as above stated, petitioner was entitled to her judgment by default.
Petitioner further alleged that the said presiding judge refused to take jurisdiction in the premises and refused to make any order whatsoever on the motion filed by her, and “she therefore prays a peremptory writ of mandamus to require said Hon. Neil Killough, judge of the second judicial district and judge presiding over the Poinsett County Circuit Court, to enter the motion of defendants for leave to withdraw their bond and petition for removal to the United States District Court and the order of said court heretofore made permitting the withdrawal of said pleading's and to enter upon the docket in said cause No. 96, styled Mrs. H. Y. Glenn v. Studebaker Corporation of America et al., to the end that her cause of action may be properly heard in said Poinsett County Circuit Court”; and in the final prayer further relief was prayed “that this court direct the respondent herein, as judge presiding over said Poinsett County Circuit Court, to grant petitioner, as plaintiff below, in said cause a default judgment, and to require the said respondent herein to impanel a jury for the purpose of assessing plaintiff’s damages; for costs and all other proper relief.”
As an exhibit to the petition, the petitioner filed a copy of her motion for judgment by default made on March 13, 1934, and the vacation order made and signed on that date by the Hon. Neil Killough, the presiding judge. That order, signed by the judge, is as follows:
“At 9 o’clock a. m. on March 5,1934, the second division of the Poinsett County Circuit Court convened pursuant to statute, in regular session, at which time the business of said division of court was entered upon and the grand and petit jurors impaneled. At some time during the said day, Hon. Martin K. Fulk, of Little Rock, advised the undersigned as judge presiding at said court that he wished to be heard on a motion filed in the cause of Mrs. H. Y. Glenn v. Studebaker Corporation of America et al., number 96, then pending and docketed in the first division of the said Poinsett County Circuit Court, said motion being for a removal of said cause to the United .States District Court on the ground of diversity of citizenship and severability of causes; Mr. Fulk at that time advised the undersigned that he had filed his said petition and bond in proper form and had notified the Hon. Melbourne Martin, of Little Rock, opposing counsel, that the said petition for removal would be presented on that date. Mr. Melbourne Martin was not present in person, but it was stated by Hon. Marvin Watkins, of Harrisburg, that he, the said Mr. Watkins, was associated with Mr. Martin in the case, and that Mr. Martin could not be present on the said 5th day of March, but asked that the hearing on the petition be set for another day in the future, and suggested Friday of the same week. Mr. Fulk then stated that he had given proper notice to Mr. Martin and presented to the undersigned the said notice and objected to a continuance of the hearing. The undersigned then suggested to Mr. Watkins and Mr. Fulk that the first division of the Poinsett County Circuit Court was not in session, and that in his view the second division had no jurisdiction to take any step in a cause pending in the first division, unless said cause was transferred to the second division either by agreement of counsel on consent of the judge or court or by an order to that effect by the judge of the court, and that, if Mr. Martin had no objection to the transfer of said cause filed by him in the first division, it could and would be transferred, to the second division by agreement of counsel, and that the petition for removal could then be heard on the said Friday of the first week, or at any other time while the said second division was in session suitable and convenient to counsel. Mr. Watkins then stated that he was not authorized to say whether or not such transfer would be agreeable to Mr. Martin and could make no statement whatever about the matter. The discussion was then continued approximately two hours in order to enable Mr. Watkins to get in touch with Mr. Martin over the telephone. This he was unable to do. The matter wás then called up again by Mr. Fulk, and the undersigned advised Mr. Fulk that it was the universal practice in this district that civil canses should not stand for trial or disposition of any sort by the second division of the circuit court unless said canse had been originally filed in said second division, or unless they had been transferred, after filing, from the first division to the second division. The undersigned then suggested to Mr. Fulk that the apparent dilemma in which he was placed conld be solved by the removal of the petition, bond and notice from the files of the said first division of the Poinsett Circuit Court, and that under the circumstances the clerk would be directed by the undersigned to permit the said withdrawal of said papers. At that time the clerk had made no docket entry of any sort in regard to the filing of said papers, but the said papers were actually in the file of said cause No. 96, and had been stamped by the clerk with his filing stamp. Upon this suggestion being made and the statement to Mr. Fnlk, whether the undersigned was in error in that statement or not, that that would have the same effect as if the petition, bond and notices had not been filed at that time, Mr. Fulk did act upon the suggestion related to him, and the clerk, by direction of the undersigned, removed from said file and cause number 96, the said petition, bond and notice and delivered them to Mr. Fulk in the presence of the undersigned.
“Nothing else in this matter transpired until the 13th day of March, 1934, at which time the said second division of said circuit court was still in session. At that time Mr. Melbourne Martin, in person, presented his motion to enter the order of the court permitting defendant to withdraw upon its motion the petition and bond for removal to the Federal court, and this motion for default judgment in said cause number 96, at which time it first appeared that the clerk had entered on the civil docket in said cause the following notations:
“ ‘March 5-34. Petition for removal to Federal court filed. March 5-34. Bond for removal to Federal court filed. March 13-34. Motion to enter order of court permitting defendant to withdraw upon its motion the petition and bond for removing to Federal court filed. March 13-34. Motion for default judgment filed’; that none of said entries were made by the court or by the court’s direction or by the undersigned.
“The said undersigned, being of the opinion that the second division of the Poinsett County Circuit Court now in session has no jurisdiction whatever in this civil case, and, under the circumstances outlined above, has refused to either sustain or deny the said motions filed by the plaintiff on this 13th day of March, 1934, as a court, but does, at the request of plaintiff’s counsel, make this statement and explanation of his refusal in the form of a vacation order, and, for the reasons stated, refuses to take any jurisdiction of said cause. The defendants were not represented, either in person or by attorney, in any of these matters, except those outlined and detailed on the 5th day of March, 1934, nor was any notice given to defendant or counsel in regard to the motion to enter order or motion for default judgment. During all of the discussion had on this, the said 13th day of March, 1934, the plaintiff was present in person and by her attorneys, Hon. Melbourne Martin and Hon. Marvin Watkins, and also present Dr. A. L. Jobe, of Little Rock, a witness for the plaintiff.
“The clerk of the Poinsett County Circuit Court is directed to enter this order as a vacation order of the Poinsett County Circuit Court, First Division.”
To this petition the respondent filed a response by his attorney, admitting the allegations of the petition except denying that the said petition and bond were with drawn from the files on motion of defendants’ attorney in action No. 96, but alleged that the same were withdrawn on the initiative of the court for the reason that the case had been filed in the first division of the Poinsett Circuit Court, the division in which, pursuant to law, civil actions are due to be. filed, and it was the practice that such civil actions were not due to be disposed of by the second division of the court unless said cause had been originally filed therein, or unless it had been transferred after filing, from the first to the second division. The respondent denied that any action had been taken on the 5th of March, 1934, or any orders made, or any notations authorized by the court to be made on the docket or record thereof, and that none of the entries copied in the petition for mandamus were made by the court or by its direction or by the respondent as judge thereof; that it was the opinion of respondent that the second division of said circuit court had no jurisdiction in cause No. 96, and, under the circumstances set out, refused to sustain or deny the motions filed by the plaintiff on March 13, 1934, as a court, but made a written statement and explanation of his said refusal in the form of a vacation order which appears in the transcript.
Supporting this motion was the affidavit of Martin K. Fulk, the attorney, who appeared in the Poinsett Circuit Court on March 5, 1934, and supporting the petition is the affidavit of the deputy circuit clerk, which is in effect that the withdrawal of the bond and petition and their delivery to the defendants’ counsel were made upon motion of said counsel.
The affidavits of Fulk and of the deputy circuit clerk are in conflict, but we think the facts are settled by the formal written findings of the presiding judge made and signed by him on March 13, 1934, which had been copied herein, and that these findings sustain the contention made by the respondent, to-wit, that the court refused to entertain the petition and bond for removal for the reason that the case was pending in the first division of the Poinsett Circuit Court, and that he, while presiding* over the second division of that court, had no jurisdiction to hear and determine any proceedings in cause No. 96 filed in the first division except in accordance with the procedure pointed out by the statute governing the practice in the second judicial circuit; that this practice was that, where a case was filed in one division, it might be transferred by the judge of that division to the other division, or might be heard by the judge of the division other than the one in which the cause was filed on consent of the parties. It also appears from the response and the written findings of fact made by Judge Killough that on March 5, 1934, both the plaintiff and defendants in cause No. 96 were present and represented in the court by counsel; that the court called the act governing the practice in that circuit to the attention of counsel and announced, upon the defendants’ request that he hear the petition for removal, that he would do so if the plaintiff (petitioner) would agree that the cause be lifted from the first division and heard by him in the second division, but to this proposition plaintiff’s counsel would not agree.
The majority of the court agree that the prayer of the petition should be denied for the following reasons :
1. The refusal of the plaintiff (petitioner) to agree that the cause be transferred from the First to the Second Division of the circuit court is the reason why this was not done and why Judge Killough did not proceed to determine the question presented by the petition and bond for removal and such as might subsequently follow, and that it would now present an anomalous situation for this court to mandamus the circuit judge and compel him to do those things on petitioner’s request, which he would have done had the petitioner, in the first place, agreed that he might. The refusal of the court to take any action in the cause while presiding in the Second Division was brought about by the action of petitioner, herself, and she is therefore in no position to complain of the failure of the court to act, and for that reason her prayer for mandamus should be denied.
2. We judicially know that the court will sit in the First Division on May 14, 1934, and at that time petitioner’s case No. 96 is due to be called for trial or other proceeding, whereas the Second Division over which Judge Killough presides (unless by agreement between himself and Judge Keck he presides over the First Division), will not be in session until a time subsequent to the convening of the court in its First Division. For these reasons whatever order this court might make would serve no useful purpose and courts are not called upon to do vain things. International Shoe Co. v. Wagner, 188 Ark. 59, 64 S. W. (2d) 82.
3. The majority are also agreed that the petitioner is not entitled to that part of the relief prayed which asks this court to direct the trial court to render a judgment in her behalf by default and to impanel a jury to assess her damage. The ground on which the prayer for this relief is based is that the defendants entered a general appearance when they filed their motion for leave to withdraw the petition and bond for removal from the files of the court for the. purpose of refiling in the First Division. In the first place, the finding of the presiding judge negatives this contention and clearly indicates that the filing marks on the petition and bond were stricken out and the papers returned to defendants’ counsel on the court’s initiative, and not by reason of any motion having been made for that purpose.
In the next place, if, under the circumstances narrated in the petition, response, and in the “vacation order” signed by Judge Killough, defendants had made the motion to withdraw their petition, it is certain that this was for the purpose of presenting it in the First Division, the one in which the cause was pending, their right to have the same heard in the Second Division having been denied without the agreement of plaintiff having been obtained, that agreement being refused by her counsel. So, all that was done was in furtherance of the assertion of the defendants’ right to have the case removed, and it was for that purpose that all the proceedings were. had.
It is well settled that the filing of a petition to remove a cause from a State to a Federal court does not amount to the entry of a general appearance, and it is especially the case where, as in the case at bar, the peti tion recited that appearance was made only for the purpose of presenting the petition; and, as we have seen, if it be granted that the petition was withdrawn on defendants’ motion, this was an act, in view of the position taken by Judge Killough, essential to secure a removal of the cause to the Federal court. The special purpose for which the petition was filed would still remain, during all the proceedings, to secure the relief prayed in the petition, and such proceedings would not amount to a general entry of appearance as contended by the petitioner. We have been cited to no authority to sustain her view, but the authorities cited by the respondent support our conclusion and comport with sound reason. In 4 C. J., § 34, p. 1344, the general doctrine is thus stated: “Where a petition for removal does not amount to a general appearance, a motion for leave to withdraw such petition is not a general appearance.” As authority for the text the author cites the. case of Bryan v. Norfolk, etc. Ry. Co., 119 Tenn. 349, 104 S. W. 523. In that case the court notices the argument that the motion to withdraw the petition, not being in pursuance of any federal statute, was a voluntary abandonment of a right under that statute, and amounted to a voluntary appearance, and answered that argument thus: “We do not think this contention is sound. The defendant company, having the acknowledged right to make a special appearance for the purpose of filing a petition for the removal of the cause to the Federal court, might properly appear and withdraw that petition without being charged with a general appearance. It was at least an appearance for a special purpose, whether for the filing of the petition for removal in the first instance or the withdrawal of that petition in the. last instance.” See also Flint v. Coffin, 176 Fed. 872; Coffin v. Flint, 217 U. S. 602, 30 S. Ct. 693.
Mr. Justice Smith, Mr. Justice McHaney and the writer are of the opinion that the petition should be denied, not only on the grounds stated above but for reasons which will appear in a concurring opinion. The Chief Justice, Justices Humphreys and Kirby dissent.
The writ is denied. | [
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LARRY D. VAUGHT, Judge.
| ¶ Appellant Kennetha Henson appeals from her conviction for theft of property under Ark.Code Ann. § 5-36-103 for embezzling money from Malvern Water Works, a department of the City of Mal-vern. She argues that the circumstantial evidence presented against her at trial was insufficient to sustain a conviction. We disagree and affirm.
Henson was an office manager at Mal-vern Water Works. Malvern Water Works accepted cash and checks from customers daily. On a fairly regular basis, the money drawers were balanced and closed out, and the cash and checks were kept in a safe room until they were deposited. The safe room was not locked during the day, and everyone in the office had access to it. Henson was responsible for making all bank deposits. Henson would sometimes make daily deposits, but she would also sometimes wait weeks between deposits. On some occasions, Henson deposited only checks, although there would have been cash to deposit every day.
| ¡¡Beginning in approximately 2006, during annual accounting audits, Henson began explaining account shortages as “de posits in transit,” which is an accounting term for deposits that have been made but do not yet appear on the bank statement. Specifically, Henson reported that funds that should have been deposited by December 31 of the preceding year were not actually deposited until the following year, which explained deficiencies in the previous year’s account balance. This explanation for the deficiencies appears to have been acceptable to the auditors at the time. The discrepancies were not considered material by the auditors, given that the annual revenue for the Malvern Water Works was in excess of $20 million.
In 2011, during the audit for 2010, the auditors discovered more substantial discrepancies. They requested information from Henson about the deposits in transit she had reported for that year. Henson would not or could not provide the information. At that point, the office contacted the mayor of Malvern. Soon thereafter, the mayor instructed another employee to take over all duties related to depositing money. The employee taking over Henson’s duties discovered that there was approximately $150,000 missing from the safe room at the time, based on the current figures in the office’s general ledger.
Henson was questioned about the missing money. She stated that she did not steal the money and asked whether, if she had, would she not have something to show for it. When |spressed to provide specific information as to the deposits in transit that she had reported, she left the office. Henson was terminated on June 10, 2011.
At trial, Jimmy Locke, a senior accountant with Arkansas Legislative Audit, testified that he conducted an investigation of cash deposits and determined that, over a five-year period, there was a shortage of approximately $226,925.55 from the two bank accounts to which Henson was responsible for making deposits. Locke testified that Henson was responsible for the collection, receipt, and depositing of payments for those accounts, and that because deposits were not made daily or in any other organized manner, it was impossible to reconcile bank deposit records with the office’s collection records.
Evidence as to Henson’s personal finances and spending habits was also introduced at trial. Henson’s gross income from 2006 until she was terminated was approximately $35,965 per year, and her husband’s gross income for that period was approximately $48,812 per year. During the relevant time period, Henson made approximately $40,000 in unexplained cash deposits to her personal accounts. Several witnesses testified that Henson had significant credit card debt, defaults, overdraft charges, threatened home foreclosures, and difficulty in paying her bills. Despite these apparent financial hardships, Henson spent approximately $5,900 on vacation travel, $7,600 on concerts, and $2,300 on manicures. Once Henson was terminated from Malvern Water Works, the cash deposits into her personal accounts stopped.
We will affirm the denial of a motion for directed verdict if substantial evidence, either direct or circumstantial, supports the conviction. Harmon v. State, 340 Ark. 18, 22, 8 S.W.3d 472, 474 (2000). Substantial evidence is evidence which would compel a conclusion one way |4or the other with reasonable certainty, without relying on mere speculation or conjecture. If circumstantial evidence alone is relied upon, the evidence must establish every element of the crime. Green v. State, 269 Ark. 953, 601 S.W.2d 273 (App.1980) (citing Henley v. State, 255 Ark. 863, 503 S.W.2d 478 (1974)). Circumstantial evidence may not provide the sole basis for a criminal conviction if it can be reconciled with the theory that someone other than the defendant committed the crime or that there was no crime committed at all. Bowie v. State, 185 Ark. 834, 49 S.W.2d 1049 (1932). The circumstances relied upon by the State “must be so connected and cogent as to show guilt to a moral certainty and must exclude every other reasonable hypothesis than that of guilt of the accused.” Lindsey v. State, 68 Ark.App. 70, 73, 3 S.W.3d 346, 348 (1999).
Henson was charged and convicted of theft of property pursuant to Arkansas Code Annotated § 5-36-103(b)(1)(A) (Repl.2013). A person commits theft of property if she knowingly “[t]akes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property of another person with the purpose of depriving the owner of the property[.]” Ark.Code Ann. § 5-36-103(a)(Z) (Repl.2013). Theft of property is a Class B felony if the value of the property is twenty-five thousand dollars or more. Ark.Code Ann. § 5-36-103(b)(Z )(A) (Repl. 2013). The distinction between types of theft has been abolished under Arkansas law; Arkansas Code Annotated § 5-36-102 (Repl.2009) explicitly states that theft of property embraces the separate offenses previously known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and other similar offenses.
|sWe hold that substantial evidence supports the theft-of-property conviction in this case. The evidence showed that Henson was the only employee who made bank deposits and was the only employee who reported the deposits in transit used to conceal the theft. Moreover, there is no other explanation for the significant cash deposits made to her personal accounts, which stopped once she was terminated, or for how she was able to afford expensive vacations, concerts, and luxury beauty treatments on her annual household income.
Henson challenges her conviction by citing evidence that other people had access to the cash stored in the safe room at Malvern Water Works and, therefore, had an opportunity to commit the crime. She points to evidence that her depositing and accounting practices were satisfactory to the accountants prior to their review of the 2010 accounts. She claims that evidence as to her credit-card debt and difficulties in making mortgage and utility payments is exonerative rather than inculpatory because it indicated a lack of funds rather than excess cash at hand. Finally, she contends that the evidence related to her personal finances and expenditures amounts to nothing more than poor money management rather than evidence of six-figure embezzlement.
Henson’s arguments fail because they wholly ignore the substantial evidence that weighs heavily in favor of her guilt. Although the evidence presented against Henson was mostly circumstantial, it was more than sufficient to sustain her conviction. In this case, the evidence established that there was only one theory of the crime that conformed to the evidence. Not only did Henson have access to the cash, she concealed the missing money | f,during audits, and she benefited from the crime. Therefore, we hold that substantial evidence supports her conviction for theft of properly.
Affirmed.
GLADWIN, C.J., and WALMSLEY, J., agree.
. It appears that, around 2006, due to a change in accounting practices nationwide, a specific change in the accounting firm that audited Malvern Water Works, and changes in office management, internal bookkeeping practices at Malvern Water Works became increasingly lax, contributing to or allowing the theft at issue in this case. | [
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ROBERT J. GLADWIN, Chief Judge.
| T Appellant Regina Jo Webb seeks a reversal of the November 26, 2013 decree of divorce in the Grant County Circuit Court. She argues that the circuit court erred in awarding her only $225 per week in permanent alimony, dividing the marital property equally, and in not requiring appellee Lester Webb to pay her attorney’s fees. We affirm.
On November 2, 2011, appellee filed a complaint seeking a divorce from appellant on the ground of general indignities. On November 16, 2011, appellant filed an answer to the complaint along with a counterclaim for divorce, also on the ground of general indignities. Additionally, she sought an unequal allocation of the marital debt, temporary and permanent alimony, and a reasonable attorney’s fee.
A temporary hearing was held on January 11, 2012, and a temporary order was entered on February 1, 2012, wherein the circuit court ordered appellee to pay appellant $550 per week in temporary alimony beginning January 18, 2012, and continuing pending |2further order of the circuit court. Appellee was also ordered to pay appellant’s stepfather the amount of $3,044.86 for expenses related to appellant’s care from the time she moved into her stepfather’s home after the parties separated. The issue of an attorney’s fee was held in abeyance.
Final hearings were held on January 20, 2013, and April 12, 2013, at which time the circuit court heard the testimony of several witnesses including both parties, and multiple exhibits were received into evidence. After the parties submitted proposed findings of fact and conclusions of law, the circuit court entered a final decree of divorce on November 26, 2013, granting appellee a divorce from appellant on the ground of eighteenth months’ separation. The decree ordered that appellee would pay appellant permanent alimony in the amount of $225 per week, that the marital assets would be divided equally, and that each party would be required to pay their own attorney’s fee.
On December 2, 2013, an amended agreed order concerning marital property was filed wherein it was noted that all personal property had been divided, that appellant agreed to transfer her interest in the marital home to appellee for the amount of $43,500, and that she also agreed to transfer her interest in a certain mobile home to the parties’ son. Other agreed orders and qualifying domestic relations orders (QDROs) concerning the property and assets were also entered. Appellant filed a motion for reconsideration of the final decree on December 2, 2013, and on December 10, 2013, appellee filed a reply to the motion for reconsideration. Subsequently, appellant filed a reply to the response to the motion for reconsideration, but no order was entered addressing the various pleadings filed after the | -¡divorce decree was entered. Appellant filed the appropriate and timely notices of appeal and amended notices of appeal in the circuit court, and this appeal followed.
On appeal, divorce cases are reviewed de novo. Brave v. Brave, 2014 Ark. 175, 433 S.W.3d 227. Decisions such as those involving alimony, division of marital property, and attorney’s fees, however, fall within the sound discretion of the circuit court and are reviewed for an abuse of that discretion. See id. It should also be noted that the division of marital property and an award of alimony are complementary devices that a circuit court may employ to make the dissolution of the marriage financially equitable. Yancy v. Yancy, 2014 Ark. App. 256, 2014 WL 1758917. There can be no abuse of discretion and a circuit court’s decision regarding these issues can not be overturned unless it can be demonstrated that it exercised its discretion improvidently or thoughtlessly without due consideration. Smithson v. Smithson, 2014 Ark. App. 340, 436 S.W.3d 491.
I. Permanent Alimony
An award of alimony is not mandatory but rather is discretionary, and the circuit court’s decision regarding any such award will not be reversed on appeal absent an abuse of that discretion. Smithson, supra. This court has recognized that a circuit court is in the best position to view the needs of the parties in connection with an alimony award. Id. The purpose of alimony is to rectify the economic imbalance in the earning power and standard of living of the divorcing parties, in light of the particular facts of each case. Id. The primary factors are the financial need of one spouse and the other spouse’s ability to pay, but other factors are the circumstances of the parties; the couple’s past standard of living; the value of [Jointly owned property; the amount and nature of the income, both current and anticipated, of both parties; the disposition of the homestead or jointly owned property; the condition of health and medical needs of the parties; and the duration of the marriage. Id. The need for flexibility outweighs the need for relative certainty in assessing alimony. Id. If alimony is awarded at all, it should be an amount that is reasonable under all the circumstances. Id.
Appellant argues that the award of only $225 per week for permanent alimony was unreasonable and an abuse of discretion when one considers the circuit court’s factual findings, which appellee does not challenge on appeal. Considering her inability to work, her debilitating disease, her lack of income, her lack of insurance, their long marriage, the homemaker services she provided, the need for constant care, the $400 per week required for care, appel-lee’s good health, his secure job, and his income appellant urges that the amount awarded was clear error.
The circuit court found that in addition to myotonic dystrophy, appellant suffers from “numerous physical ailments.” One of the exhibits introduced was the deposition of A.H. Tilley, M.D., who testified as to appellant’s medical condition, noting that she had myotonic dystrophy, a progressive muscle weakness, and additional ailments including diabetes, urinary incontinence, anemia, depression, gastroesopha-geal reflux disease, hyperlipidemia, and hypercalcemia. He explained that myo-tonic dystrophy makes diabetes more difficult to control, and nerve damage from' her diabetes will cause her to increasingly lose sensation in her hands and feet. Moreover, her diabetes requires the purchase of special, more expensive foods. Dr. Tilley explained that reflux disease is common in people with myotonic | r,dystrophy because weakened muscles in the stomach and esophagus no longer prevent acid from bubbling back up. In view of her physical ailments, particularly her myotonic dystrophy, Dr. Tilley explained that he would not be surprised if her life expectancy is only two to three years.
Appellant points us to evidence in the record indicating that, as her condition deteriorates, she will need skilled care at $17.50 to $25 per hour. Her monthly medication coTpays for 2012 averaged about $140 when she was covered by appellee’s insurance. Without it, she claims that her medication costs will increase exponentially. Moreover, appellant has outstanding balances with her healthcare providers, which she pays on a monthly basis. Her expense breakdown for March 2012 to January 2013 shows that her expenses are for basic necessities, including $1,672.96 for healthcare expenses (about $152 per month), which did not include medication co-pays or unskilled paid care expenses.
In contrast, appellee’s admitted monthly expenses were approximately $1,642.59. Health insurance accounted for $270, but that amount decreases without appellant carried on the plan. More than a quarter of his expenses, $444, are for his new truck. Appellant takes issue with other discretionary expenses submitted by ap-pellee as well as a large cash withdrawal ($7,770.52) during the pendency of the case.
Appellant submits that the circuit court decreased the alimony payment to $225 from the $550 required in the temporary order based on testimony from a financial planner, Harry Ehrenberg. Ehrenberg testified that as appellee ages, he will be unable to maintain the same level of work productivity, thus reducing his income. Appellant notes that Ehrenberg did Rnot testify, however, that appellee’s income had started to decline, when it would begin to decline, or how quickly it would decline. He instead testified that appellee’s earning capacity is peaking and that it -will “eventually” start declining. Appellee’s employment records show that he earned more in 2012 than ever before ($98,860) and that he was working at a pace in 2013 to earn even more ($104,457). Appellant claims that as things stand, his income might not decrease until long after she dies. She acknowledges that if it begins to decline before then, appellee can seek a reduction in alimony. See Spears v. Spears, 2013 Ark. App. 535, 2013 WL 5424819. In conclusion, she claims that for the circuit court to award only $225 per week based on Ehrenberg’s presumption and conjecture on something that might not happen for years was an abuse of discretion. See Bethune v. Bethune, 192 Ark. 811, 94 S.W.2d 1043 (1936).
The record establishes that the parties had been married thirty-four years and had two grown children, one of whom died in 2008. During the course of the marriage, appellee was gone approximately fourteen hours per day, working twelve-hour shifts, with two hours’ drive time. For approximately six years prior to the time the parties separated, appellee prepared food and drinks for appellant before he left for work, and he did all the cleaning, cooking, and yard work because of her declining health. It was noted that when appellant broke her foot and became confined to a wheelchair as a result of that injury and her muscular degenerative condition, she complained about doing physical therapy and just wanted to stay home. The parties’ daughter-in-law testified that she believed that appellant was confined to the wheelchair because she wanted to be and would not undertake physical therapy to improve her condition.
17Appellee testified that he filed for divorce because he was tired of appellant not wanting to do anything, and he felt like he had done all he could do. He had worked for Entergy at Redfield for thirty-two years and was an operation tech who monitored equipment or ran a dozer. He would do shift work in twelve-hour shifts, fourteen days a month, or in a twenty-eight day rotation. He would get up and fix appellant food before he left for the day at 6:00 a.m., and it was usually 8:30 p.m. before he arrived back home. Appellee noted that he had seen a change in appellant over the past ten years that started when she broke her ankle and became afraid to do things because she thought she would fall.
Appellee explained that throughout the marriage and until she was confined to the wheelchair, appellant did some babysitting and received some money but never contributed to paying the marital bills. He was the one responsible for the income in the marriage and had been responsible for the monthly bill paying the last six years, as well as being solely responsible for cooking, cleaning, and the upkeep of the house during that time.
Before the date of separation, appellee paid off several bills including marital debts out of his 401(k) plan from which he withdrew $22,826.34 — the plan having a value of $234,059.91 as of December 21, 2012. The parties had the marital residence built in 1981 which was valued at $87,000, and the balance of approximately $15,000 owed on the house was paid off from these funds around March 2011. Additionally, appellee paid off appellant’s car, his son’s car, and several credit-card bills. The goal was to become debt free, and appellant was in agreement with that plan. He also paid off a loan out of the 401(k) plan and bought five acres of land in Colorado in late 2010 or early 2011 for which he paid $8350. |8In addition to that property, the parties had a condo timeshare in Branson, which was purchased in 2001 or 2002 for what he believed to be $3700. Appellee also had an account at Telcoe Credit Union through which he financed his truck, which had a balance on the loan of $16,997.
Appellee explains the testimony of Ehrenberg, who valued the marital estate at $330,000, including $263,000 in assets and a little under $26,000 in liabilities. While it was noted that appellee had an $18,000 vehicle, he owed $17,000 against it. Additionally, he had an $8000 vehicle but owed the IRS $5000. Jointly, the parties had three pieces of real property, which comprised about twenty-six percent of the equity. The value of those properties, which had no debt, was $95,700.
The evidence also established that appellant, who was fifty-two years old, lived with her stepfather. She noted that when her stepfather died, she expected to have nine acres of land that would be given to her, and that if she were to have use of her stepfather’s home, she would have to remodel it. Her stepfather noted that he would give her the house when he passed away, but he did not think she could live by herself.
Here, the circuit court carefully considered the evidence and the respective positions of the parties, noting that appellee had been paying appellant temporary alimony at a rate of $550 per week. The circuit court determined that permanent alimony was warranted and set it at $225 per week. The circuit court made its decision with deliberation, taking into account the required factors, including: the financial need of appellant and the ability of appellee to pay; the financial circumstances of the parties; the amount and nature of income, |9both current and anticipated of both parties; the extent and nature of the resource and assets of each of the parties; and the earning ability of both parties.
As this court noted in Smithson, supra, which involved an allegedly disabled spouse, an award of alimony, if one is indeed justified at all, is measured by the particular facts and circumstances of the parties before a circuit court. There, this court noted it would not substitute its judgment for that of a circuit court, and would only determine whether the alimony decision is reasonable under all the circumstances. With appellant being paid permanent alimony and receiving half of the marital property, we hold that the award of permanent alimony was reasonable. See Halk v. Halk, 2009 Ark. App. 803, 2009 WL 4377608 (decision to completely deny alimony found to be abuse of discretion where parties were married forty-five years, wife had no income, and husband insisted she not work throughout course of the marriage).
II. Equal Division of Marital Property
Arkansas Code Annotated section 9-12-315(a)(1)(A) (Repl.2009) provides that at the time a divorce decree is entered all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable. This principle concerning division of marital property is a presumption, see West v. West, 103 Ark.App. 269, 288 S.W.3d 680 (2008), that equal division of the marital property is what is fair and equitable in a divorce case. A circuit court is given broad powers to distribute all property in divorce cases, marital and non-marital, in order to achieve a fair and equitable distribution. Marks v. Marks, 2014 Ark. App. 174, 432 S.W.3d 698. In making such a distribution a court need not do so with | ^mathematical precision. Friend v. Friend, 2010 Ark. App. 525, 376 S.W.3d 519. A división of marital property will be not be reversed unless it is clearly erroneous. Wainwright v. Merryman, 2014 Ark. App. 156, 2014 WL 988977. The clearly erroneous standard is met only where the reviewing court, on the entire evidence, is left with the definite and firm conviction that'a mistake has been made. Atchison v. Atchison, 2012 Ark. App. 572, 2012 WL 4831659.
Because of appellant’s debilitating disease and inability to earn an income versus appellee’s solid financial position and well-paying job, she claims that the circuit court clearly erred in dividing the marital property equally. Because seventy-one percent of the parties’ net worth was in the 401 (k) account and the parties stipulated to much of the other property, the real issue is over the division of that account. The only “offset” to the equal division was that appellee be responsible for the $16,500 loan on his new truck, an IRS debt of $5254, and his signature loan of $3561. Appellant notes that appellee had already agreed to assume the truck debt and testified that he was not asking the circuit court to make appellant responsible for it, which he incurred four or five months before he told her he wanted a divorce. Appellant claims that the signature loan was in large part to pay for his attorney’s fees. Moreover, appellant notes that she has to pay taxes on any part of the 401 (k) account she withdraws, which she claims she must do “to survive,” while appellee is able to keep his portion of the money in the account, let it grow tax free, and pay no taxes until he withdraws it in retirement.
| T1 Appellant also asserts that appellee’s pre-separation spending highlights the inequity of the distribution. Appellee admitted that he withdrew either $73,557.92 or $76,121.92 from his 401 (k) in April 2011, six months before he told appellant he wanted a divorce, and started spending it — only some of it being spent to pay expenses of the marital estate.
There was evidence introduced of payments for non-marital-estate expenditures totaling $14,169.03, all of which were made to or for appellee’s son, daughter-in-law, or mother. Appellant notes that the circuit court made no adjustment based on those payments. If truck-related purchases, e.g., new wheels, are included — debt which appellee agreed to accept — the total is $20,558.05. She claims that this extensive spending on non-marital property leading up to the separation and then the purchase of a new truck and related expenses heighten the inequitable nature of the circuit court’s division of property.
We disagree, noting that while appellant sought an unequal distribution of the marital assets, the circuit court specifically found that an unequal division and distribution of the marital assets would not be appropriate upon examining the factors set forth in section 9-12-815. The decisions regarding alimony and property division are to be reviewed together because ultimately the circuit court is to make a just allocation to achieve an equitable distribution.
112With respect to indebtedness, the circuit court did make appellee solely responsible for the debts to the IRS and Telcoe Federal Credit Union that amounted to $8815. This ruling ensured appellant would not be responsible for that debt. The circuit court also had evidence before it that appellant had a place to live rent free that would become her residence if her stepfather should pass away. Appel-lee acknowledged that he "withdrew funds from his 401(k) plan as noted, but he did so to pay off marital debt and make the parties virtually debt free, a plan with which appellant was in agreement at the time.
Under the particular facts and circumstances of this case, we hold that the circuit court’s division of the marital property was not clear error. Accordingly, we affirm on this issue.
III. Attorney’s Fees
Finally, appellant argues that the circuit court abused its discretion in not awarding her attorney’s fees. See Halk, supra. It instead made the parties responsible for their own fees, appellant in the amount of $15,385.56, and appellee in the amount of $11,756.99.
The award of attorney’s fees in a domestic-relations case is a matter within the circuit court’s discretion, and there is no fixed formula for determining what constitutes a reasonable amount. Yaney, supra. See Ark.Code Ann. § 9-12-309(a)(2). The circuit court has the inherent power to award attorney’s fees, and whether the court should indeed award any attorney’s fees rests within its sound discretion. Tiner v. Tiner, 2012 Ark. App. 483, 422 S.W.3d 178. Because the circuit court presides over the case and gains familiarity with it as well as the extent and quality of the services rendered by the attorney, it has a superior | ^opportunity to assess the critical factors, and an award of attorney’s fees will therefore not be set aside absent an abuse of discretion. Id.
In determining whether to award fees, courts consider the parties’ financial abilities. Halk, supra. See Page v. Page, 2010 Ark. App. 188, 373 S.W.3d 408 (husband’s income was three times the wife’s); and Poole v. Poole, 2009 Ark. App. 860, 372 S.W.3d 420 (husband’s income was twice the wife’s). Because of the disparity in the parties’ income detailed above, appellant maintains that appellee is in a far better position to pay her attorney’s fees. Appellant urges that it was an abuse of discretion for the circuit court not to require appellee to pay her attorney’s fees in this divorce proceeding that he initiated.
We disagree. Appellant sought an award of a “reasonable attorney’s fee.” Appellee testified that the income he listed for 2012 and the projected income for 2013 were not normal for him because he worked almost 500 hours in overtime in 2012. Additionally, expert testimony indicated that he was at the point where he was peaking and should start to show some decline in income production because, at his age, there are limits as to what he can do physically given his education and occupation.
We disagree with appellant’s reliance on Page, supra, and Poole, supra, in support of her argument that ordering each party to pay their own attorney’s fee constituted an abuse of discretion. Neither of those cases hold that a circuit court abuses its discretion in refusing to order the party having more income to pay the other party’s attorney’s fee.
The issue of attorney’s fees must be viewed in light of and in conjunction with the alimony and marital-property-distribution issues wherein appellant received permanent |14alimony and an equal share of the marital property, which was substantial in nature, in order to determine whether the circuit court achieved a fair and equitable result. Based on the record before us, we hold that it was equitable and within the circuit court’s broad discretion to order each party to pay for then-own attorney’s fee. See Barnes v. Barnes, 2010 Ark. App. 821, 378 S.W.3d 766; Halk, supra.
Affirmed.
WALMSLEY and VAUGHT, JJ., agree.
. Ehrenberg testified that money transferred into the QDRO account is not taxed, but he did not address money that she withdraws from it for living expenses, which ,is taxed.
. The circuit court found that appellee withdrew $73,557.92, but appellee testified that he made all the payments on his list with money from his 401(k). Those payments total $76,121.92. A document in the record, but not introduced as an exhibit, indicates that the circuit court's amount is correct — but the discrepancy of the amount is not really the issue. | [
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Ed. F. McFaddin, Associate Justice.
From a decree granting her petition for separate maintenance and awarding Mrs. Gilliam $250 per month, Mr. Gilliam prosecutes this appeal and presents only two points:
“(I) The evidence of the plaintiff was insufficient to sustain a decree of separate maintenance upon her complaint.
‘ ‘ (II) The evidence on behalf of the defendant and cross-complainant was sufficient and should sustain a decree of divorce for him upon his cross-complaint. ’ ’
I. Is The Evidence Sufficient To Sustain The Decree Awarding Mrs. Gilliam Separate Maintenance? Mr. and Mrs. Gilliam were married in December 1948 and lived together as husband and wife until they separated on September 6, 1959. This suit for separate maintenance was filed shortly thereafter; and no property rights are here involved. We have a long line of cases which recognize that under what is now § 34-1202, Ark. Stats, the Chancery Court has the power to decree separate maintenance to the wife. Some of these cases are: Wood v. Wood, 54 Ark. 172, 15 S. W. 459; Shirey v. Hill, 81 Ark. 137, 98 S. W. 731; Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86; Savage v. Savage, 143 Ark. 388, 220 S. W. 459; and Harmon v. Harmon, 152 Ark. 129, 237 S. W. 1096.
Mrs. Gilliam testified that just prior to the separation Mr. Gilliam jerked her out of bed and inflicted physical injuries on her, such as a bruised bronchial tube and a broken tooth; and that Mr. Gilliam’s violence continued up to the separation. Mr. Gilliam admitted hitting his wife. In addition to the evidence as to physical in juries inflicted by Mr. Gilliam, there was also evidence designed to show marital infidelity on the part of Mr. Gilliam; but we see no occasion to recite any of this evidence because the testimony as to physical injuries is amply sufficient to support a decree for separate maintenance. A wife is not required to live with her husband when, without provocation, he inflicts physical injuries on her. Shirey v. Shirey, 87 Ark. 175, 112 S. W. 369; and Crabtree v. Crabtree, 154 Ark. 401, 242 S. W. 804, 24 A.L.R. 912. Mr. Gilliam’s defense was, that his wife was a jealous nagging woman and goaded him into violent conduct at times when he was drinking intoxicánts. But, even so, such explanation is no defense for the physical injuries that he admitted having inflicted on his wife.
Mrs. Gilliam was corroborated to a limited extent as to her physical injuries: her mother, Mrs. DePriest, testified that she observed a bruised place on Mrs. Gilliam’s face. But we have recognized that in suits for separate maintenance there is no requirement for corroboration as in cases for absolute divorce. Welch v. Welch, 225 Ark. 372, 282 S. W. 2d 600, and cases there cited. There is certainly no evidence of collusion in this case. The Chancellor accepted Mrs. Gilliam’s testimony and awarded her separate maintenance. "We cannot say that the decision of the Chancellor is against the preponderance of the evidence on this point.
II. Did Mr. Gilliam Introduce Sufficient Evidence On His Cross Complaint To Require That The Court Grant Him An Absolute Divorcef In his cross complaint Mr. Gilliam sought an absolute divorce from Mrs. Gilliam. His allegations were:
“That the plaintiff and cross-defendant has pursued a systematical and habitual course of personal indignities toward him which rendered his condition in life intolerable and unbearable. That such indignities consisted of fussing, nagging, quarreling and unmerited reproach. That all these acts on her part have made it impossible for him to longer live with her.”
Mr. Gilliam testified most strongly in support of his cross complaint; but the Chancery Court was not required to give full credence to such testimony in the face of equally strong denials by Mrs. Gilliam. Furthermore, we find no corroboration of Mr. Gilliam’s testimony on the material and substantial matters; and corroboration is required in a case for absolute divorce, as Mr. Gilliam was seeking. Fania v. Fania, 199 Ark. 368, 133 S. W. 2d 654; Allen v. Allen, 211 Ark. 335, 200 S. W. 2d 324; Stimmel v. Stimmel, 218 Ark. 293, 235 S. W. 2d 959. From a study of the evidence, we conclude that the Chancery Court was correct in refusing to grant Mr. Gilliam an absolute divorce.
Affirmed.
Johnson, J. dissents.
There is a dissenting opinion in McClain v. McClain, 222 Ark. 729, 263 S. W. 2d 911, wherein these separate maintenance cases are listed. A later case is: Hill v. Rowles, 223 Ark. 115, 264 S. W. 2d 638.
We quote portions of his testimony:
“Q. Major, it has also been testified here that you have been very abusive, that you have beaten your wife, at one time she had a tooth knocked out or had a tooth broken. Is that true?
A. Anything I did to her was in self defense.
The Court: Answer the question, did you do it or not?
A. I don't know about breaking her tooth but I did hit her.
Q. When did you hit her.
A. I can remember on one occasion. She was biting me on the arm and I slapped her to get her teeth loose out of my arm.
Q. When was that?
A. That was on the night she testified to where she went and stayed at the Albert Pike. I don’t remember the date of the incident____ I was trying to hold her and she kept biting me and I thought I would calm her down a little bit and slapped her on the face a couple of times.
Q. Did you slap her with your fist or open hand?
A. Open hand.
Q. Did you break a tooth or bruise her up in any manner?
A. I did not notice any bruises or a broken tooth ...” | [
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J. Seaborn Holt, Associate Justice.
These two actions (No. 2273 and No. 2274) are original actions under Amendment Seven (7) to the Constitution of the State of Arkansas to test the sufficiency of the popular name and ballot title of an initiated measure sponsored by Arkansas State AFL-CIO bearing the popular name “Arkansas Minimum Wage And Overtime Act” and questioning the following ballot title:
“An Act to prescribe for employees, with certain exceptions, a minimum wage of eighty cents per hour increasing after one year to ninety cents per hour and increasing after two years to one dollar per hour. Further to prescribe for employees, with certain exemptions and exceptions, overtime wages of at least one and one-half times their regular rate for all hours worked over forty-eight in each workweek, for all hours worked over forty-four in each workweek after one year; and for all hours worked over forty in each workweek after two years; and to provide for the administration of minimum and overtime wage provisions by the Arkansas Department of Labor; to provide for the enforcement of such provisions; and for other purposes.”
Specifically, the plaintiffs, Leigh and Thomas, present for our consideration (1) the sufficiency of the popular name, (2) the sufficiency of the ballot title and (3) the sufficiency of the publication of the measure.
(1)
We have only a small body of case law dealing with the sufficiency of the popular name title of initiated measures. In Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 272, the term “A Statewide Prohibition Act” was attacked. The opponents argued that since the measure actually allowed possession of a single quart of intoxicating liquor, the name was misleading. But this court upheld the title concluding: “It seems too clear for argument that the popular name need not have the detailed information as is required for the formal ballot title, else there would be no difference between the two . . .”
We did, however, point out in Moore v. Hall, 229 Ark. 411, 316 S. W. 2d 207, that catch phrases and slogans which tend to mislead and to color the merit of a proposal would be rejected. In Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470, the popular name “Modern Consumer Credit Amendment” which was considered along with the ballot title was rejected. We there said: “. . . no convincing explanation is offered for the use of the word ‘modern’. It is certainly not descriptive of the amendment, unless we are to say that every amendment is modern merely because it is new. Rather, the word is used as a form of salesmanship, carrying the connotation that the original constitution is old-fogyish and outmoded, while the proposed amendment is modern and therefore desirable. Even though the popular name need not be as explicit as the ballot title, Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 72, it should not be used as a vehicle for unnecessary praise of the measure. In studying his ballot the voter is not bound by the rule of caveat emptor. He is entitled to form his own conclusions, not to have them presented to him ready-made.”
Plaintiff Thomas argues that the word “Arkansas” is useless in the popular name and that it tends to give partisan coloring to the act and is calculated to arouse state pride. Only a general response need be made to this contention. The term “Arkansas” seems most appropriate in view of the fact that the act would apply only in the State of Arkansas. It is also argued that the word “overtime” in the popular name is misleading because it does not say overtime for what. Although individual words may be singled out for attack in a popular name title, their meaning should be ascertained from their context. Only the most naive would not understand the meaning of overtime when he reads the title “Arkansas Minimum Wage and Overtime Act”. Besides, as we have previously pointed out, the popular name need not have detailed information in it. We see no merit in the contention that the popular name is partisan colored and misleading.
(2)
As to the sufficiency of the ballot title, the general principles of law applicable to ballot titles were well stated in Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470: ‘ ‘ On the one hand, it is not required that the ballot title contain a synopsis of the amendment or statute . . . It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law . . .We have recognized the impossibility of preparing a ballot title that would suit everyone . . . Yet, on the other hand, the ballot title must be free from * any misleading tendency, whether of amplification, of omission or of fallacy’, and it must not be tinged with partisan coloring.”
In the order in which they appear in the court’s opinion, a ballot title must be (1) intelligible (2) honest, and (3) impartial. The ballot title here in question is intelligible, concise and clear. It summarizes in about 130 words an act containing over 4,000 words and 18 sections. We have in some of our cases indicated that a ballot title of unusual length would be objectionable. See Newton v. Hall, 196 Ark. 929, 120 S. W. 2d 364. In the case of Coleman v. Sherrill, 189 Ark. 843, 75 S. W. 2d 248, we said: “. . . The real objection urged to the title of the act . . . is the fact that it is not sufficiently elaborate. Any other ballot title would be susceptible of the same criticism unless it were in itself a complete abstract of the act which would be impracticable under ordinary conditions.” And further, “. . . it has never been understood that the title of a statute should disclose the details embodied in the act. It is intended simply to indicate the subject to which the statute relates . . . When the general subject is indicated, no detail matters need be mentioned in the title.” (emphasis supplied)
The title of a measure does not have to constitute a synopsis of the measure, Bradley v. Hall, supra. Here the act in question informs the voter that a minimum wage of $1.00 per hour will take effect in three years; stair-stepping from $ .80 an hour the first year to $ .90 an hour the second year and finally to $1.00 an hour the third year. Further, that all time worked over 48 hours, then 44 hours, and finally 40 hours is to be paid at the rate of time and one-half over a period covering three years from enactment. Also, that the administration of the minimum wage is provided for and that the Arkansas Department of Labor will administer the provisions of the act. The voter is also apprised of the fact there are certain exceptions and exemptions in the act. We conclude that the title meets the requirement that it must be intelligible.
The second requirement of a ballot title is that it must be honest. There can be no misleading tendency, whether of amplification, omission, or of fallacy. West- brook v. McDonald, 184 Ark. 740, 44 S. W. 2d 331. It would be difficult to find a title which more honestly conveys an idea of what the act is intended to enact. The act provides for a stair-stepping of the minimum wage from $. 80 to $1.00 per hour and the ballot so states. The act provides for certain exemptions and the ballot so states. The act provides for administration of the act and the ballot title so states. The act provides for overtime wages and the ballot title so states. We find no dishonesty or improper amplification in the title
A third requirement is that the title be impartial. It is interesting to note that although both plaintiffs refer to the rule against partisan coloring, neither apparently is able to create specific allegations to this effect in relation to the ballot title. Crawford, Statutory Construction, pp. 85-86, states: “It would appear sufficient if the title would fairly convey to the average voter the general purpose and tenor of the law, without a tendency to mislead or to give a partisan coloring, since the ballot title is obviously intended to be a means of identification of the measure submitted to the electorate.” We fail to find any misleading tendency in the ballot title.
(3)
The last contention of the plaintiffs is that the defendant did not comply with the publication requirements of Amendment Seven (7) of the Arkansas Constitution. Amendment Seven (7) to the Arkansas Constitution provides in relevant part that:
“Initiative petitions for State-wide measures shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon; provided, that at least thirty days before the afore-mentioned filing, the proposed measure shall have been published once, at the expense of the petitioners, in some paper of general circulation.”
The publication of the initiated act was had on June 5, 1960. Parts of the petition were filed on June 27, some 22 days later; the remaining parts of the petition were filed on July 7, 32 days after the publication. It is urged by the plaintiffs that the petition was not published 30 days before the filing of the petition.
We cannot agree with the plaintiffs for a number of reasons. We have previously held that the filing of several parts constitute but one petition. Such was the holding in Hammett v. Hodges, 104 Ark. 510, 149 S. W. 667, decided under our previous Initiative and Eeferendum Amendment (referred to as number ten in the case but more accurately number four) to the Constitution which was superseded by the present Amendment Seven. Although there was no provision for a thirty-day publication of the act in this previous Initiative and Eeferendum Amendment, the language with reference to filing petitions is practically the same as the language in the present Amendment Seven. The court, in passing upon the question of filing petitions, there held that all names in an initiated petition, even though on different sheets and filed on different dates should be considered as one petition. We there stated:
“We are of the opinion that the requisite number may be ascertained by adding together the names of the legal voters signed to the separate sheets that have been filed with the Secretary of State within the time prescribed by the act where these separate sheets, embodying the petition of the signers thereto, are in the form prescribed by the statute, and all containing the same subject-matter, the language of each petition being the same. The separate sheets, thus presented and filed in the contemplation of the Constitution and statute, constitute but one petition. ’ ’
To support the above ruling, the court in the same case cited Bridewell v. Ward & Key, 72 Ark. 187, 79 S. W. 762, decided under our old three-mile local option law which provided for local option within three miles of any church or school upon petition for a majority of the voters within the three-mile area. Several petitions were filed with the county court, a remonstrance was filed and allowed by county court, whereupon it was discov ered by the petitioners that several petitions were not filed and it was asked that they be allowed to file them in support of tbeir original petition. This was denied. Several days later another group of citizens asked leave to file supplemental petitions which the county court denied. This court, on reviewing the proceedings of the lower court, reversed the action of the county court saying of the petitions: “The fact that there were many of them, and that they were filed on different times, did not change their prayer or lessen the number of petitioners. The filing of the remonstrance made no such change, nor did it cut off the right of the petition. They were in effect only one petition and were evidently intended to be used as one.”
To the same effect is Reeves v. Smith, 190 Ark. 213, 78 S. W. 2d 72, decided under the present Initiative and Eeferendum Amendment, where we said: “Amendment No. 7 to the Constitution of the State is the Initiative and Eeferendum Amendment, and provides, among other things, that the petition for an act to be initiated by the people may be circulated and presented in parts, but each part of any petition shall have attached thereto the affidavit of the persons circulating the same, etc. This means necessarily, that the ‘parts’ constitute but one petition for any proposed act filed with the county clerk, who shall pass upon the sufficiency of the petition.”
Thus it can be seen that there is a definite thread running through our cases which says that all petitions in initiated measures should be counted as one petition even though filed on different dates. The only reasonable conclusion we can draw from the above citations is that the filing on June 27 and the filing on July 7 were but one petition.
The remaining problem then is, what is the proper date to consider the filing of the petition (since all parts are one); should it be June 27 or July 7? In considering this the following rules must be taken into account. This court is definitely committed to the proposition that Amendment Seven should be liberally construed to effectuate its purpose. In the case of Reeves v. Smith, supra, this court enunciated the following guide posts for interpreting Amendment Seven: “. . . Amendment No. 7 necessarily must be construed with some degree of liberality in order that its purposes may be well effectuated. Strict construction might defeat the very purposes, in some instances, of the amendment.
“Another reason, not less cogent, is that Amendment No. 7 permits the exercise of the power reserved to the people to control, to some extent at least, the policies of the State, but more particularly of counties and municipalities, as distinguished from the exercise of similar power by the Legislature, and, since that residuum of power remains in the electors, their acts should not be thwarted by strict or technical construction. "We are supported in this idea of more liberal construction by the following case: Ferrell v. Keel, 105 Ark. 380, 385, 151 S. W. 269, 272. In construing this amendment, it is our duty to keep constantly in mind the purpose of its adoption and the object it sought to accomplish. That object and purpose was to increase the sense of responsibility that the lawmaking power should feel to the people by establishing a power to initiate proper, and to reject improper legislation.’
“In Townsend v. McDonald, 184 Ark. 273, 278, 42 S. W. 2d 410, 413, Chief Justice Hart, discussing State ex rel v. Olcott, 62 Ore. 277, 125 Pac. 303, said: ‘This would make each sheet a separate petition and would be putting form above substance. No matter how many signers there are to a petition and how many sheets are used, they are pasted together and become a constitutent part of the same petition. It is only necessary that a full and correct copy of the measure on which the referendum is asked be filed with the petition and attached thereto, in order that the petitioners may have the opportunity to read it and inform themselves as to the act to be referred before signing the petition, if they wish to do so.’
“A realization that behavior and conduct in all affairs of life is never perfect, requires due allowances must be made for human frailties. Therefore only a substantial compliance is required. Westbrook v. McDonald, 184 Ark. 740, 746, 43 S. W. (2d) 356, 43 S. W. (2d) 331.”
In this particular case there are sound reasons for applying the liberal construction rule. In the first place, the pertinent language in Amendment Seven (7) relative to 30 days notice is far from being unambiguous. In the second place, we can conceive of no purpose for requiring the 30 days advertisement other than to inform the electors of the provisions of the proposed act so that they may vote intelligently at the November election. The purpose manifestly was not to inform the electors so that they might decide whether or not to sign the petition. This is true for in many instances most or all of the signatures are obtained before the act is published. It is common knowledge that it requires much time and effort to obtain petitions on a state-wide basis, and that it is necessary to have a large number of petitions, and further that these petitions are filed from time to time with the Secretary of State. This being true, we think the only reasonable interpretation and conclusion to be drawn is that the filing date must be as late as the date the last petition is filed and this would be July 7, which was more than 30 days after publication.
The act was properly certified by the Secretary of State and the prayer for an injunction is denied.
McF addin and Robinson, JJ., dissent.
George Rose Smith, J., not participating.
The 1909 Initiative and Referendum Amendment is listed as Amendment No. 10 to the Constitution and may be found on pages 121 and 122 of Kirby & Castle’s Digest of 1916, and on pages 1239 and 1240 of the Acts of the Legislature for the year 1909. It may also be found listed as Amendment No. 7 on pages 131 and 132 of Crawford & Moses’ Digest of 1921. To provide procedural matters for the 1909 Amendment, the Arkansas General Assembly of 1911 adopted Act No. 2 of the Extraordinary Session that convened on May 22, 1911 (see pages 582 et seq. of the printed Acts of 1911). | [
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George Rose Smith, J.
This is a suit by the appellant for rescission of a conditional sales contract by which he bought a secondhand tractor from the appellee, for $6,875. The complaint asserted two grounds for cancellation of the contract: First, that the seller had made false representations about the condition of the tractor, and, secondly, that there had been a breach of an express or implied warranty. The chancellor granted rescission upon the second ground and entered a decree canceling the contract and adjusting the account between the parties. An appeal and cross appeal bring the whole case up for review in the form of a trial de novo.
The really basic issue is the appellant’s right to a cancellation of the agreement, either for fraud or breach of warranty. Gentry testified that in making the purchase he cautioned the appellant’s salesman that he knew nothing about this kind of tractor and that he was relying upon the salesman’s word as to the condition of the machine. Gentry says that the salesman, after receiving this warning, assured him that the tractor was in A-l condition. The salesman disputes Gentry’s testimony, but the chancellor found that the representation was actually made, and this finding cannot be said to be against the weight of the evidence.
The proof shows clearly enough that the tractor was not in A-l condition and that the seller’s repeated efforts to repair it were unavailing. We need not discuss this evidence, for the appellee does not, and indeed could not, contend that the machine was in A-l condition.
The chancellor set aside the contract for breach of warranty despite the fact that the written agreement recites that the seller makes no express warranty with respect to the property and that the buyer waives any warranty implied by law. The appellee relies upon this contractual disclaimer of all warranties to support its argument that the trial court erred in decreeing a rescission of the agreement for breach of warranty.
It is true that we held in Moss v. Gardner, 228 Ark. 828, 310 S. W. 2d 491, that § 71 of the Uniform Sales Act permits the parties to agree that all implied warranties will be excluded from their agreement. Ark. Stats. 1947, § 68-1471. The Moss case involved a conditional sales contract, but we overlooked § 76 c of our Sales Act, by which the legislature expressly excepted conditional sales from the operation of the statute. Ark. Stats., § 68-1479; Cloud Oak Flooring Co. v. J. A. Riggs Tractor Co., 223 Ark. 447, 266 S. W. 2d 284. Hence § 71 of our Sales Act is not properly applicable to the conditional sales contract now before us.
We do not find it necessary to analyze in detail the appellant’s asserted cause of action for breach of warranty, for we are convinced that the cancellation decree should in any event be affirmed upon the alternative ground of misrepresentation by the seller. In the circumstances of this case, where the purchaser was paying a very substantial sum, amounting to about 40 per cent of the price for a brand-new tractor, we do not regard the seller’s representation as a mere expression of opinion and therefore not actionable. See Cannaday v. Cossey, 228 Ark. 1119, 312 S. W. 2d 442. A representation that a used truck was in A-l condition has been held to be a statement of fact and hence a warranty rather than a mere expression of opinion. Maurice v. Chaffin, 219 Ark. 273, 241 S. W. 2d 257. By the same reasoning sneh a representation, when falsely made, gives rise to a cause of action in tort. Fausett & Co. v. Bullard, 217 Ark. 176, 229 S. W. 2d 490.
As a subsidiary argument the appellee insists that the appellant waived his right to rescission by not bringing suit until one year after the sale, Jones v. Gregg, 226 Ark. 595, 293 S. W. 2d 545. This defense was not raised in the appellee’s answer, which consisted only of a general denial. There was thus no occasion for the appellant to offer proof of facts tending to excuse his delay, and it would be manifestly unfair to reject his cause of action upon a ground that was not developed at the trial and appears to be raised for the first time on appeal.
The remaining points relate to the accounting between the parties after the contract has been set aside. The appellant made one monthly payment of $593.06 upon the contract, but the chancellor refused to allow him to recover this amount, finding that it constituted a reasonable rental for the machine during the time that the purchaser used it. The record contains no evidence at all relating to the rental value of the tractor, nor is there any proof that the plaintiff derived any benefit from his vain attempts to operate the machine. The decree will therefore be modified to permit the appellant to recover the amount of his cash payment, with interest.
The appellant also sought to recover the value of a small used tractor that he traded in upon the one purchased. The written contract allowed the purchaser a credit of $1,250 for the machine traded in, but the appellee sold it six months later for only $470. We cannot say that the chancellor was in error in limiting the appellant’s recovery to the smaller figure. The issue is the market value of the little tractor on the date that it was traded in. Its actual selling price a few months later, as determined in a transaction apparently entered into at arm’s length, was competent evidence of value. Perkins v. Ewan, 66 Ark. 175, 49 S. W. 569. On the other hand, it is well known that a trade-in allowance may have little relation to the true valne of the property. “The difference between a cash price and a trade in price is too marked and too familiar to require discussion.” Lawrence Const. Co. v. Harnisch-Feger Sales Corp., 164 Tenn. 651, 51 S. W. 2d 837. The parties were content to present only the scanty evidence of value that we have mentioned, and the chancellor was justified in accepting the actual selling price as the more reliable of the two figures suggested.
Finally, the appellant seeks to recover damages for a loss of business that occurred as a result of his inability to operate the tractor that he bought. The machine was to have been used in the operation of a limestone quarry, and its repeated break-downs caused the appellant to lose certain orders for agricultural lime. The appellant merely proved the gross selling price represented by these orders, with no proof whatever touching upon the costs that would have been involved in filling the orders. His evidence is therefore fatally defective, for there is no way for the court to estimate the amount of profits that were lost. Singer Mfg. Co. v. W. D. Reeves Lbr. Co., 95 Ark. 363, 129 S. W. 805.
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Carleton Harris, Chief Justice.
Don L. Davis, a widower, on February 7, 1957, deposited $10,000 with the Piggott Federal Savings and Loan Association, receiving a Savings Share Account certificate. This certificate was issued in the name “Don L. Davis or Patricia Jackson (a granddaughter).” In October, 1957, Davis married Lucy Copeland Davis, appellant herein. On January 3, 1958, Davis presented his savings book to the Association, stated that he had married, and would like to change the account to show his wife’s name, Lucy Copeland Davis, rather than the name of the granddaughter. In compliance therewith, the certificate was changed by striking the words “Patricia Jackson (a granddaughter)”, and inserting in lieu thereof, the words, “Lucy Copeland Davis.” Davis died in June, 1958, leaving a will, in which appellant was named executrix. No withdrawals were ever made from the account after it was originally opened in 1957. Davis retained possession of the deposit book at all times. Subsequent to his death, appellee instituted suit against the widow (both individually and in her capacity as executrix), and against the Association, seeking to have the account declared her sole and absolute property. On hearing, the court held that a joint tenancy had been created in the first instance, and that same “cannot be revoked at the pleasure of either of the depositors * * that it was the intention of Davis at the time of making the deposit, to create a joint tenancy with right of survivorship, and further, “That the testimony is insufficient to show that there was not a com pleted gift.” In accordance with these findings, the court declared and held appellee to he entitled to the entire deposit, directed the Piggott Federal Savings and Loan Association to pay the deposit, together with all accruals thereto, to Patricia Jackson, and ordered appellant to deliver the pass book to appellee. From such decree, comes this appeal. For reversal, appellant asserts four points, hut we think point three is controlling. Accordingly, we will only discuss that point, together with the two contentions relied upon hy appellee to sustain the Chancellor’s holding.
The pertinent provisions of Section 67-820, subsection (b), Ark. Stats. Anno. (1957 Replacement), are as follows:
“Any Building and Loan Association or Federal Savings and Loan Association may issue shares, share accounts, or accounts in the joint names of two (2) or more persons or their survivor, in which event any of such persons who shall first act shall have power to act in all matters related to such shares, share accounts, or accounts whether the other person or persons named in such shares, share accounts, or accounts he living or not. Such a joint account shall create a single membership in any such association. No shares, share accounts, or accounts shall he issued to tenants in common. The repurchase or redemption value of shares, share accounts, or accounts issued in joint names, and dividends thereon, or other rights relating thereto, may he paid or delivered, in whole or in part, to any of such persons who shall first act, whether the other person or persons he living or not. The payment or delivery to any such person, or a receipt or acquittance signed hy any such person, to whom any such payment or any such delivery of rights is made, shall he a valid and sufficient release and discharge of any such association for the payment or delivery so made.”
Appellee asserts that this section is applicable to accounts of the nature here involved, and that the case of Ferrell, Administratrix v. Holland, 205 Ark. 523, 169 S. W. 2d 643, wherein this Court held a joint tenancy to have been created, is controlling in the present litigation. We agree that the section applies, but we do not agree that the Ferrell case has any application. The holding in that case was predicated upon the aforementioned statute, and the provisions of the certificate issued, 2together with the intent, as shown by the evidence, to create a joint tenancy. As this Court stated:
“The above statute applies here; and from the evidence in this case we hold that Mr. S. I. Ferrell and Dr. D. T. Holland intended to, and did, create a joint tenancy with right of survivorship when they applied for and received the certificate here involved.”
Further, from the Opinion:
“We hold that there was created a joint tenancy with right of survivorship when Mr. S. I. Ferrell and Dr. D. T. Holland signed the application card to the loan association and received the certificate, and, the certificate never having been changed it goes to Dr. Holland as the survivor.”
A substantial difference in that case, and the present one, is at once apparent, for here, the certificate was changed. Appellee takes the view that once Mrs. Jackson’s name was placed on the certificate, she had a vested interest in the property. This position cannot be maintained, for the statute itself precludes such a result. Very clearly, such statute provides:
“ * * * any of such persons who shall first act shall have power to act in all matters related to such shares, share accounts, or accounts whether the other person or persons named in such shares, share accounts, or accounts he living or not.”
Mr. Davis did act, and he had every legal right to do so.
It is also contended, to make any sort of a change, it would have been necessary for Davis to draw the money out and re-open another account, rather than merely have the name changed on the certificate. This, we think, would have been superfluous. Equity regards substance rather than form. The circumstances clearly reflect the end result that Davis desired. It might also be added that the evidence clearly establishes that Davis had no intention of creating a joint tenancy when opening his account. According to Mrs. Wilma Underwood and John Ed Lingle, employees of the Federal Savings and Loan Association who were present when the account was originally opened, the following facts were shown: Davis desired to open an account in his own name, but was advised by one of the corporation directors that it was customary to have two names on the account. According to Lingle, Davis mentioned the name of one of his neighbors, a Mr. Montgomery, but it was suggested that would be asking a neighbor to assume a considerable amount of responsibility. The director inquired about relatives, and Davis mentioned his granddaughter. According to Mrs. Underwood, Davis was assured it would not be possible for the person whose name appeared on the account with him to draw on it except after his death, and only if she had possession of the pass book. After some discussion, he decided to place his granddaughter’s name on the account, and was assured that if he desired to make any change, it would only be necessary that he return with the hook, and give the Association the necessary information. We are not here concerned with the correctness of the advice given to Davis, but mention this evidence only for its pertinency to the question of intent.
Appellee asserts, “In any event, there was certainly a completed gift to the granddaughter.” We feel there is but little need to add to what has already been said. A gift is a voluntary transfer of property, without valuable consideration, to another. In the very nature of a gift, the donor ceases to exercise control over it. The testimony, heretofore referred to, establishes that Davis had no intention of giving the money, represented by the share, to anyone, and he likewise retained possession of the pass book. Appellee calls attention to a letter sent to Mrs. Jackson, by Davis, and enclosing an application card for her signature, following the original opening of the account with the Savings and Loan Association. The letter directs that appellee sign the card, “so then when you come down here they would know you”; however, the opening line of the letter is, “I wish yon would sign this card to identify you just in case anything happens to me.” We think it clear that the first statement referred to Mrs. Jackson’s “coming down” after his death. The evidence falls far short of establishing a gift.
For the purposes of this appeal, it is not necessary that we determine whether the fund, evidenced by the certificate, belongs to appellant individually or in her capacity as executrix. The decree is reversed, and the cause remanded with directions to enter a decree not inconsistent with this opinion.
Reversed and remanded.
The applications for the share account in both the Ferrell case, and the present case, were the same, but the certificates issued were vastly different. In the former case, the certificate reads as follows: “This is to certify that S. I. Ferrell, Desha, Ark., and Dr. D. T. Holland, Newbern, Tenn., as joint tenants with right of survivorship, and not as tenants in common, is a member of the Batesville Federal Savings & Loan Association and holds a five thousand dollars investment share account of said association, subject to its charter and by-laws and to the laws of the United States of America.” In the present case, the original certificate reads: “This certifies that Don L. Davis or Patricia Jackson (a granddaughter) is a member of Piggott Federal Savings and Loan Association and holds a Savings Share Account of said Association, subject to its charter and by-laws and to the Laws of the United States of America.”
Emphasis supplied.
Emphasis supplied. | [
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Paul Ward, Associate Justice.
In this case, wherein appellants purchased a farm from appellees, the disputed question is whether a butane gas tank was included with the property as contended by appellants. „ The issue was joined in a replevin suit in the Circuit Court brought by appellees to get possession of the tank. The trial judge, sitting as a jury, found in favor of appellees, ordering the tank delivered to appellees and awarding damages against appellants in the amount of $4.00. Appellants now prosecute this appeal for reversal.
Except for the testimony later to be discussed the facts are not in dispute.
Appellees listed for sale their 76 acre farm with Robert W. Read, a real estate agent associated with the Strout Realty Company. On September 12, 1959, Read wrote a letter to appellants who lived in Houston, Texas. This letter, which described the farm relative to location, buildings, tillable soil, price and terms, contained this sentence: “Electricity and butane in.” The result was that appellants and appellees entered into a Sales Agreement on September 22, 1959, and a down payment of $1300 was made by appellants without them having seen the property. Among other things, the agreement provided that the deed to appellants would be delivered on or before the 15th day of October, 1959, and that possession would be given on October 1, 1959. Appellants took possession of the property on October 1, 1959, and soon thereafter this controversy arose over the ownership and possession of the tank. The 250 gallon butane tank was located on top of the ground several feet from the house and was connected thereto by a metal pipe. The principal contentions of appellants are that the appellees are bound by the acts and representations of their real estate agent, Mr. Read; that having acted upon the written representation of said agent appellees cannot be heard to deny or to vary those representations, and; that the trial court erred in interpreting the law on what constitutes fixtures, as between vendor and vendee. On the other hand, appellees contend that on the first day appellants took possession and one day before the deed was signed it was. made known to appellants that the butane tank did not go with the property and that appellants agreed to this and tacitly consented by their silence therein, and that therefore they are estopped now to contend otherwise. The testimony in this connection is in conflict.
Mrs. Edwards, one of the appellees, stated that she met appellants at the farm on October 1st in the presence of Mr. Read and Mr. and Mrs. Houston; that she told appellants the butane tank didn’t go with the place; that later that day she saw Mrs. Bourque and told her again that the tank didn’t go with the place; that Mr. Read said he- thought the tank might have “went,” hut that she told him no, and; that Mr. and Mrs. Bourque did not say anything. She also stated that early that day appellants didn’t say anything when Mr. Edwards told them the tank didn’t go, and at that time no deed had been executed. She also stated that she refused to sign the deed until she heard Mr. Read say the tank didn’t go. The deed was signed the following day. On cross examination she further testified that Mr. Read stated that he knew the tank didn’t go; that he thought the tank was listed but he found out later it was not. Harley Houston testified in substance: He was present on the occasion mentioned by Mrs. Edwards; they talked about the tank and Mrs. Edwards said the tank didn’t go with the place but didn’t hear Mr. Bourque say anything about it. Mrs. Harley Houston testified that she was present when Mrs. Edwards told them the tank didn’t go with the place and that she didn’t hear the appellant say anything. Mr. Read testified that he was present at the meeting described by Mrs. Edwards and that he didn’t know whether Mr. and Mrs. Houston were there or not, but he did hear Mrs. Edwards say that the tank didn’t go; that the deal was consummated in his office later when Mr. and Mrs. Edwards signed the deeds, and they said at that time the tank didn’t go. On cross examination he stated that nothing was said about the tank when the place was listed for sale but up until the above conversation took place he assumed that the tank did go with the place.
Mr. Bourque testified that he also relied upon the representations made in the letter of September 12th and that he never did agree that the tank didn’t go. He further stated that Mr. Edwards did not tell them that the tank didn’t go on the morning of the 2nd — that the tank was not mentioned that morning — and that he didn’t recall it being mentioned in Mr. Read’s office that evening. He further stated that he didn’t know there was a tank until he saw it on the morning of October 2nd. Mrs. Bourque stated that they relied upon the representations made by the agent’s letter dated September 12th.
John Poyner, the Justice of the Peace before whom this case was first tried, stated that at the hearing before him Mr. Bourque stated that while they were in that office and before the deed was signed it was stated to him that the tank didn’t go.
Without entering upon a legal discussion of the circumstances under which an attachment to a house becomes real estate, we have concluded that there is substantial evidence to sustain the findings of the trial judge “sitting as a jury” to the effect that it was not the intention of the parties at the time the deed was executed to include the butane tank. It was the province of the judge to evaluate the testimony and his findings will not be disturbed as they are supported by substantial evidence. In this case we think there was such evidence.
The objection might be made, though it is not specifically made by appellants, that parol evidence was not admissible to vary a written instrument — the deed in this case. We think, however, that appellants are in no position here to benefit by such rule for several reasons. The evidence tending to show the tank was not included in the transfer was introduced without objection, and this court has said many times, in effect, that such evidence cannot be challenged for the first time on appeal. See: Gage v. Melton, 1 Ark. 224; Heaslet v. Spratlin, 54 Ark. 185, 15 S. W. 461; Lisko v. Uhren, 130 Ark. 111, 196 S. W. 816; Missouri Pacific Transportation Co. v. Moody, 199 Ark. 483, 134 S. W. 2d 868; and Tucker v. Ford, 201 Ark. 680, 146 S. W. 2d 542.
Also the facts and circumstances of this case are such as to indicate the butane tank was a proper subject for a side agreement. In the first place the letter relied on by appellants stated that “butane” was “in” — nothing was said about a tank — and the parties themselves appear to have treated the tank as personal property since it was separated from the house. Under such circumstances we think the holding by this court in Magee v. Robinson, 218 Ark. 54, 234 S. W. 2d 27, supports the conclusion we have already reached. There the court, in discussing the admissibility of parol evidence to vary a written instrument in connection with a “side agreement,” the court approved this statement:
‘ ‘ Though this assumption in most eases conforms to the facts, and the certainty attained by making the rule a general one affords grounds for its existence, there are cases where it is so natural to make a separate agreement, frequently oral, in regard to the same subject-matter, that the Parol Evidence Buie does not deny effect to the collateral agreement. This situation is especially likely to arise when the writing is of a formal character and does not so readily lend itself to the inclusion of the whole agreement as a writing which is not limited by law or custom to a particular form. . . .”
It follows from what we have said that the judgment of the trial court must be, and it is hereby, affirmed.
Affirmed. | [
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J. Seaborn Holt, Associate Justice.
This is a suit on an open account. The appellee, Earl Pierce d/b/a Pierce Produce and Feed, filed a complaint alleging that a running account existed between it and the appellant, Lee Cawood, and that after all credits had been allowed, there remained a balance due of $2,763.14 which appellant had not paid although demand for payment had been made. An itemized and verified statement of the account was made an exhibit to and part of appellee’s complaint. Appellant answered with a general denial only. He did not deny under oath the correctness of the account. In fact, he did not offer any testimony after appellee closed its case and rested, but he also rested his case. At this point, appellee asked for a directed verdict in its favor which the court granted. This appeal followed.
For reversal appellant contends: “The court was in error in directing a verdict against appellant.” We do not agree.
The record reflects that the only witness at the trial was the appellee’s bookkeeper, Mrs. Evelyn Kelley, who testified as to the correctness of a verified account which was attached to the complaint and which was introduced in evidence as an exhibit to her testimony. As indicated, appellant did not offer any testimony at the trial but rested his case after appellee had closed its case. Arkansas Statutes (1947), § 28-202 [Crawford & Moses’ Digest, § 4200] provides: “Affidavit as to correctness of account —Sufficiency.—All 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. [ * * * C. & M. Dig., § 4200; Pope’s Dig., § 5211.] ”
Here the appellant did not deny the verified account and did not deny its correctness by affidavit ór by verified answer. We hold that appellee’s proof made a prima facie case of the correctness of the account. We said in Clarke v. John Wanamaker, 184 Ark. 73, 40 S. W. 2d 784: “* * * The effect of § 4200 of Crawford & Moses’ Digest 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. She did not offer any testimony whatever, but contented herself with demurring to the complaint. 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.” See also Terry v. Esso Standard Oil Co., 220 Ark. 694, 249 S. W. 2d 577 and Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439.
Accordingly, the judgment is affirmed. | [
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Ed. F. McFaddin, Associate Justice.
Tbe appellee, Williams, was employed by appellant, Aluminum Company of America; and we will identify the parties as Williams and Alcoa. This appeal requires a decision on two points: (a) whether there is substantial competent evidence to support the finding of the Workmen’s Compensation Commission; and (b) the liability of the employer to compensate an employee for a second injury which arose because of the first injury and without any intervening independent cause.
Chronologically, here are the salient dates:
(a) On April 24, 1957 Thurman S. Williams received a low back injury while employed by Alcoa at its refining plant in Bauxite.
(b) On May 4,1957 a myelogram was done on Williams, which revealed “a herniated nucleus pulposus at the 4th interspace on the right”. Dr. Murphy performed surgery for the alleviation of this condition on May 7, 1957. This was the first operation; and as so identified will be mentioned later.
(e) On June 20, 1957 Williams returned for light work; and Alcoa, after first resisting Williams’ claim, finally, under orders of the Circuit Court, paid the expenses of the operation and compensation of 10% permanent partial disability as a whole. A lump sum settlement was made.
(d) On October 4, 1957 Williams again complained of his back and received some treatment, but later returned to work on November 18, 1957.
(e) On January 18, 1958 Williams was laid off from work by Alcoa because of reduction in the number of employees; and Williams drew unemployment benefits for some time.
(f) On November 2, 1958 Williams commenced working as a carpenter for his brother, John Williams, at Dermott, Arkansas, and was engaged in the repair of a filling station and diner which had been damaged by fire. As a part of his duties he nailed light boards (like plywood) on the walls and ceiling of the rooms. He worked at this for several weeks; and several times in November and December 1958 complained of his back hurting him.
(g) Williams testified that on the night of December 19, 1958, while he was off work and seated in a chair, he tried to arise from the chair and got a “catch” in his back which caused him to give up his work.
(h) On December 20, 1958 Williams signed up for supplemental unemployment benefits at the Alcoa plant.
(i) On January 2, 1959 Williams went to Dr. Murphy, who had performed the first operation and removed the disk material as previously mentioned in Item (b) supra; and Williams told Dr. Murphy of persistent back pains. Dr. Murphy had Williams hospitalized; and on January 6,1959 Dr. Murphy performed the second operation, which was a removal of additional disk material at the fourth lumbar interspace and also a spinal fusion of the fourth and fifth lumbar vertebrae.
(j) On February 3, 1959 Alcoa learned of the second operation and Williams’ claim for additional compensation, and promptly resisted,- claiming, inter alia, that the first injury, operation, and award ended all of Alcoa’s responsibility; that the Dermott work was an independent intervening cause for the second operation; and that Alcoa was not liable for the second operation or any additional Workmen’s Compensation benefits.
So much for the chronological detail. The Referee and the Full Commission agreed with Alcoa and denied Williams’ 1959 claim. The Circuit Court reversed the Commission and directed that the compensation he allowed Williams; and Alcoa prosecutes this appeal, claiming that there is substantial evidence to support the finding of the Referee and the Full Commission, which was. that the second operation (that of January 6, 1959) was not necessitated by reason of the old injury of 1957 and the first operation, hut rather was because of an intervening and independent cause which was an injury received while Williams was working for his brother, John Williams, as a carpenter in Dermott.
We recognize the rule to he, that viewing the evidence in its strongest light to sustain the Commission’s findings, if there he sufficient evidence to support such factual findings, then the Circuit Court was in error in reversing the Commission. J. L. Williams & Sons v. Smith, 205 Ark. 604, 170 S. W. 2d 82; Sturgis Bros. v. Mays, 208 Ark. 1017, 188 S. W. 2d 629; and other cases cited in West’s Arkansas Digest “Workmen’s Compensation” § 1939. But a careful study of the record fails to reveal any evidence that Williams suffered any trauma or injury while working in Dermott in 1958 sufficient to constitute an independent intervening cause for the 1959 operation. Only four witnesses testified. They were Williams, Dr. Murphy, Doyle Green and Lowell White. Williams testified, as abstracted by appellant:
“I worked for my brother for a period of about five ■or six weeks down at Dermott, Arkansas. I done mostly painting. I did not do anything that would hurt my back. That’s why I worked with my brother, because he knew I had trouble with my back, and I didn’t do no heavy work. I sure didn’t injure my back in any way while working for my brother. I got up out of a chair when I first noticed it, started to get up out of the chair and that’s what started it off. The pain hit my back and it kept getting worse. It’s been leaving, you know, in two or three days the pain would leave but it didn’t leave that time. So that’s when I went on to see Dr. Murphy later and he taken a myelogram. I was in a tourist cabin in Dermott when I got up out of the chair . . .
“The incident that occurred when I arose from a chair was about two days before the job was finished. Prior to that time I had not been having any trouble
“. . . I was sitting in the chair and when I started to get up that’s when it caught me. ’’
Doyle Green was called by Alcoa. He was the owner of the filling station and diner at Dermott that was being repaired. He had contracted with John Williams to do the repair work, and John Williams had employed appellee, Thurman S. Williams, to help him. Doyle Green testified that the carpentry work done by Williams was very light work, such as taking down old paneling and putting up new; and taking down the old ceiling squares (16-inch plywood) and putting up new. Green testified (as abstracted by appellant):
“As far as I know Thurman didn’t hurt himself or injure himself on the job down there. He didn’t quit work because of having hurt his back . . .
“When he made mention about his back hurting him, I gathered that was just a general condition of his back from a previous injury . . .
“I am just sure he didn’t hurt himself while he was here. It was more of a recurrence from a previous ailment of some kind he had.”
It will be seen that Doyle Green’s testimony shows that no trauma or new injury occurred to Williams while he was working in December 1958. Alcoa called Lowell White, who was safety supervisor of Alcoa. He testified as to Williams’ complaints in October 1957, and that thereafter Williams refused to “co-operate”. None of White’s testimony indicated any trauma suffered by Williams or any undue exercise by him except the October 1957 incident.
We come then to the testimony of Dr. Horace R. Murphy, who was the doctor that performed both the operations on Williams; and we are tremendously impressed by Dr. Murphy’s absolute candor and frankness. His testimony shows that the second operation was necessitated because of the first operation, and not because of any new trauma or injury. Dr. Murphy testified that when he performed the first operation he removed all of the nucleus pulposus that could be removed with safety from the fourth and fifth interspace, and that he hoped that a fusion operation would not be subsequently required; that, as a usual thing, if all of the nucleus pulposus material was not removed, then within eighteen months or two years the patient frequently had to have another operation and fusion. Dr. Murphy testified that when Williams came back to him on January 2, 1959 and told him of continuous pains, the doctor knew that a fusion was indicated and that the second operation was the direct result of the first operation and not of any trauma or intervening independent cause between the two operations.
Having reviewed the entire record, we conclude that the Commission was in error in finding, as it did, that the second operation was necessitated by an intervening independent cause. All the evidence shows that the second operation was necessitated by reason of the first operation, and that no intervening independent cause was established.
Having concluded that no independent intervening cause was shown to require Williams’ second operation, we examine now to see if Williams is entitled under the law to recover the expenses of the second operation and compensation for additional disability, if any, resulting therefrom. In 99 C.J.S. p. 607, “Workmen’s Compensation” § 180, the holdings are summarized: “If the employee suffers a compensable injury and thereafter suffers further disability which is the proximate result of the original injury received, such further disability is compensable. Thus, where an employee suffers a compensable injury and thereafter returns to work and as a result thereof his injury is aggravated and accelerated so that he is further disabled than before, he is entitled to compensation for his entire disability”.
In Larson’s two-volume treatise on “Workmen’s Compensation Law”, that writer states the holdings in Vol. 1 § 13.00: “When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own negligence or misconduct”. In 58 Am. Jur. p. 775, “Workmen’s Compensation” § 278, cases from various jurisdictions are cited to sustain the text: “A subsequent incident, or injury, may be of such a character that its consequences are the natural result of the original injury and may thus warrant the granting of compensation therefor as a part of that injury”.
There is no evidence of any “independent intervening cause” in this case, so Williams’ second operation requiring a spinal fusion was the result of his original injury on April 24, 1957 and his first operation on May 7, 1957. We therefore hold that he is entitled to recover the expenses of the second operation and compensation for additional disability. The parties stipulated in the Circuit Court to these matters; and the Circuit Court judgment showing the stipulation reads as follows:
“It has been stipulated by and between the parties that the claimant’s period of temporary total disability ended August 4,1959, and he reached the maximum heal ing period from the second operation on this date: it is further stipulated that as a result of the spinal fusion performed in the second operation the claimant, Thurman S. Williams, has suffered an additional 10% disability to his body as a whole, for which he should be paid benefits at the rate of $35 per week for a period of 45 weeks, beginning August 4,1959, said benefits of 45 weeks consisting of the permanent partial disability benefits due the claimant.
In the light of the record and the said stipulation, we conclude that the Circuit Court was correct. The judgment is therefore affirmed, and the cause -remanded to the Circuit Court in order that the cause may be remanded to the Commission to see that the Circuit Court judgment is performed.
Holt, J., dissents.
George Rose Smith, J., not participating.
Here is a portion of the opinion of the Circuit Court: “The Court sees no point in relating history of the injuries and the evidence, but reaches the following findings of fact and conclusions of law:
“1. The record upon being viewed in the strongest probative light in favor of the findings of the Referee and the Commission does not, in the opinion of this Court, support the finding of the Referee and the Commission. The Court believes there is a complete absence of testimony upon which to base the findings of the Referee and the Commission in this respect.
“2. It is noted, that in the Referee’s statement of the case which the Commission affirmed, the Referee makes the following statement of fact: ‘That the injury causing the need of claimant’s second operation resulted from his employment by John Williams.’ The Referee and the Commission went further and related that a second operation performed by Dr. Murphy was a result of this additional accident or trauma, basing their finding upon the doctor’s testifying that the operation was a success.
“3. After examining the record with great care, the Court finds no evidence to support the statement that the injury occurred while in the employ of John Williams, or any statement by any medical witness that the claimant was cured by the operation. But, to the contrary, the doctor’s testimony was directed wholly to the removal of disc material which should have been removed at the first operation and was not done because of the technical difficulty in removing same.
We copy a few questions and answers found in Dr. Murphy’s testimony:
“Q. Well, at least, is it your opinion based on what you actually saw when you went in the second time that his pain was primarily caused by this additional piece of fragment pressing against the nerve root?
“A. I believe so because it was a very definite finding and of course, the fact that he was relieved as far as his hip pain. I mention hip pain because it was quite significant. It’s one of the components of sciatica. In other words, the nerve root being pressed upon by the disc material can give you a complete radiation down the leg or it can merely give you hip pain and at that time he was having a rather excruciating hip pain. Following the surgery he actually has been relieved as far as leg symptoms are concerned . . .
“Q. Just one question to more or less sum up. Then it is your testimony that Thurman Williams’ condition when you saw him in January, 1959, as a result of which you did the myelogram and subsequent operation, his condition was a result of the extrusion of some bits or particles of the same interspace that had been operated on in April, 1957, by an extrusion of those materials causing his trouble. Now, of course, in his history and in your examination that was not associated with any other particular strain or trauma that you know about?
“A. May I answer it in parts?
“Q. Yes.
“A. The answer of part 1 of your question, it is true this represents a recurrence and the same interspace, the same disc material which unfortunately could not be gotten in the first. Part two of your question, from my history which is turned in the report, was there was no previous history of trauma and that a month before or thereabouts he stated that he started having trouble.”
There is an annotation in 7 A.L.R. 1186 entitled: “Workmen’s Compensation: Compensation as affected by external infection from, or subsequent incident of, original injury”; and cases are there collected from various jurisdictions. See also annotation on related matters in 102 A.L.R. 790 and 39 A.L.R. 1276.
Also in tiie last paragraph of the judgment of the Circuit Court it was adjudged that Alcoa should pay all hospital, doctors, medical, and drug bills incurred by the said Thurman S. Williams, as a result of the recurrence of the injury to his back; and that Alcoa should pay attorney’s fees and costs. | [
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Sam Robinson, Associate Justice.
On the 11th day of April, 1959, appellant, Lonnie B. Mitchell, was convicted of rape and sentenced to death. On appeal to this Court the judgment was affirmed on September 21, 1959. Mitchell v. State, 230 Ark. 894, 327 S. W. 2d 384. On January 14, 1960, appellant filed in the Union Circuit Court, where he was originally tried, a motion to vacate the judgment. This is an appeal from an order overruling the motion.
It is alleged in the motion that appellant is a. Negro and that it is the custom and practice in Arkansas to sentence Negro men to death for raping white women, but that white men are not sentenced to death for rape; that Negroes were systematically excluded from the jury which tried him; that he is an ignorant youth (he was 23 years of age at the time); that he did not have access to effective assistance of counsel; that a purported confession made by appellant was coerced and not volun tary; that at the time of the trial he was insane and not mentally present at the trial; that he was insane at the time of the commission of the rape; that he is presently insane; and that he was denied an examination by a private psychiatrist prior to his trial. Nothing is alleged in the motion that was not or conld not have been raised on appeal in the first instance except the allegation of present insanity.
In affirming the original judgment, this Court said: “We have carefully examined the entire record. The appellant had a fair trial free from error.” The judgment was affirmed and the mandate issued. In these circumstances the trial court did not have jurisdiction to set aside the judgment. In the case of Fortenberry v. Frazier, et al, 5 Ark. 200, this Court said: “The Supreme Court, except where bills of review, in cases of equity, and writs in the nature of a writ of error coram nobis, in suits at law, may be prosecuted, possesses no power to review, revise, or reform its adjudications and opinions after the expiration of the term in which they are pronounced and recorded, unless they are suspended by an order made at that term; and they irrevocably conclude the rights of the parties thereby adjudicated. Whatever was before the Court, and is disposed of, is considered as finally settled. The inferior court is bound by the judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court cannot vary it, or judicially examine it for any other purpose than execution. It can give no other or further relief as to any matter decided by the Supreme Court even where there is error apparent-, or in any manner intermeddle with it further than to execute the mandate, and settle such matters as have been remanded, not adjudicated by the Supreme Court.” (Emphasis supplied.)
The Court said, in Freeman v. State, 158 Ark. 262, 250 S. W. 522: “An appeal was prosecuted to the Supreme Court from the original judgment of conviction and sentence, which was affirmed. The appeal lifted the cause out of the circuit court; and, as the judg ment was affirmed, it was beyond the power of that court to afterwards modify or change it in any respect.”
In the case of Swagger v. State, 227 Ark. 45, 296 S. W. 2d 204, a void judgment was set aside on defendant’s motion, but in that case there had been no appeal from the judgment of conviction. The case had not been before this Court previously. There had been no determination by this Court that the judgment was valid.
The motion has no merit, even if considered as a petition for a writ of error cor am nobis. Ever since the case of State v. Hudspeth, 191 Ark. 963, 88 S. W. 2d 858, it has been the rule in this State that subsequent to the affirmation of a judgment by this Court petitions for writs of error coram nobis cannot be made to the trial court without permission of this Court. No application was made to this Court for permission to file with the trial court a petition for writ of error coram nobis. Moreover, it was pointed out in the Hudspeth case that the writ will not lie where the party complaining knew the facts complained of at the time of or before the trial. All the alleged facts appellant now complains of were known at the time of the trial and at the time of the appeal to this Court except the condition of his mind at this time. That question can be determined, as provided by Ark. Stat. § 43-2622.
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Carleton Harris, Chief Justice.
Appellant entered into a contract with Rogers School District No. 30 to construct a high school building. Appellees required appellant, under authority of City Ordinance No. 385, to obtain a building permit, which appellant obtained by paying the sum of $382. Thereafter, Lavender instituted suit in the Benton County Chancery Court, alleging that the “exaction of $382.00, was and is an illegal and unconstitutional exaction from the plaintiff, under the laws and constitution of the State of Arkansas. That the laws of the State of Arkansas do not authorize cities of the State of Arkansas to regulate the construction of public school buildings, but rather delegate such power to the State Board of Education”; appellant further alleged that he made the payment required by the ordinance under protest, and had made demand for refund to the City Council of Rogers; that the City Inspector for Rogers had frequently harassed his employees, threatened to stop work on the job, and engaged in other activities to cause considerable loss and damage to appellant; that if work on the project were stopped, he (appellant) would suffer irreparable injury. The prayer was that the Court restrain the City of Rogers and O. B. Hanks, the city inspector, from attempting to regulate the construction of the new facilities for the Rogers School District No. 30; that Ordinance No. 385 be held unconstitutional “in its application to this public work,” and that judgment be given appellant in the amount of $382. Appellee demurred to the complaint, and the court sustained the demurrer, giving appellant twenty days in which to plead further. Following the filing of an amended complaint (which elaborated on certain allegations in the original complaint), to which appellee also demurred, the court again sustained the demurrer, and no further pleadings being filed by appellant, dismissed the amended complaint as stating no cause of action. From this order of the court, appellant brings this appeal.
Appellant seeks relief in two respects. First, he seeks injunctive relief, and secondly, he desires a refund of the permit fee. Under the view that we take, it is unnecessary to discuss whether the allegations reflect the permit fee to have been paid voluntarily or involuntarily, for unless the allegations are sufficient to show the ordinance totally invalid in its application to the construction of school buildings, relief cannot be granted. In other, words, no charge is made that the tax is unreasonable or confiscatory, or that the ordinance is arbitrary or discriminatory. In fact, appellant does not argue that the ordinance is generally invalid, but only asserts that it is invalid as it relates to regulation of the construction of public school buildings, it being the contention of appellant that the Legislature has delegated full authority to the State Board of Education in this field.
The statutory authority upon which appellant relies, is found in Ark. Stats. Anno., Sections 80-113 (1960 Replacement), 80-3505 (1960 Replacement), and 80-3506 (1960 Replacement). Those sections provide as follows:
“FUNCTIONS OF BOARD. — The Board shall have general supervision of the public schools of the State; prepare and distribute plans and specifications for the construction and equipment of school buildings, and approve plans and expenditures of public school funds for all new school buildings; recommend courses of study for the public schools and teacher training institutions; . . .
STANDARDS FOR SCHOOL HOUSE CONSTRUCTION. — The State Board of Education shall establish reasonable minimum standards for school house construction and said standards may be revised from time to time as educational problems and methods of procedure develop and change. Such standards shall take into consideration the recommendations of the Arkansas Chapter of the American Institute of Architecture, the Fire Prevention Bureau, and the Arkansas State Board of Health.
SCHOOL BUILDING PLANS APPROVED BY STATE BOARD OF EDUCATION. — After the first day of July following the passage and approval of this Act, no new school house shall be built except in accordance with the plan finally approved by State Board of Education for all projects where the Board requires its approval thereof. A copy of approved plans and specifications of all new school houses or additions, shall be filed with and approved by the State Board of Education, before construction shall be commenced, where so required by the Board.”
It will be noted that these sections do not contain any language expressly tailing away all authority (in matters relating to building schools) granted municipal corporations to regulate construction. Section 19-2801, Ark. Stats. Anno. (1947) provides as follows:
“They (municipal corporations) shall have the power to regulate the erection, construction, reconstruction, alteration and repair of buildings; to make regulations for the purpose of guarding against accidents by fire; to require the use of fireproof or fire-resistant materials in the erection, construction, reconstruction, alteration or repairs of buildings; and to provide for the removal of any buildings or additions thereto erected contrary to such prohibition.”
Appellant did not see fit to attach a copy of the ordinance in question to his complaint, asserting that his position is simply that the city of Rogers is without authority to pass any ordinance relating to this type of construction; therefore, the invalidity of the ordinance must rest upon the allegation in his pleadings “that the laws of the State of Arkansas do not authorize cities of the State of Arkansas, to regulate construction of public school buildings, but rather, delegate such powers to the State Board of Education.” ’Where, in equity, exhibits are attached to the complaint, such exhibits control its averments, and may be looked to for the purpose of testing the sufficiency of the allegations of the complaint. Hendrickson v. Farmers’ Bank and Trust Co., 189 Ark. 423, 73 S. W. 2d 725. Here, however, we do not know the provisions of the ordinance, nor the manner in which the city seeks to regulate this construction.
The Planning Commission Act (Ark. Stats. Anno., 1959 Supplement), Section 19-2827, expressly provides that no public building shall be constructed unless the plan for such construction has been approved as conforming with the overall plan adopted by the City Planning Commission.
Section 71-1206 (Ark. Stats., 1957 Eeplacement), gives the State Board of Health general supervision of plumbing in buildings in this state, and provides:
“The construction, installation and maintenance of plumbing in connection with all buildings in this State, including buildings owned by the State or any political subdivision thereof, shall be safe, sanitary and such as to safeguard the public health.”
Section 71-1209 provides:
“Nothing in this Act [§§ 71-1205 — 71-1217] shall prohibit cities and towns from having full authority to provide full supervision and inspection of plumbing and plumbers by the enactment of codes, rules and regulations in such form as the council may determine appropriate. * * *”
It is apparent therefore, that cities, in certain instances, do have the authority to regulate some features relating to public buildings. As stated, the ordinance is not before us, and we are unwilling to make a sweeping finding that a municipality — in this case, the city of Eogers — cannot regulate in any manner, any phase, aspect, or feature relating to the construction of a public school building.
Affirmed.
Holt, J., dissents.
Appellant also alleged that he had entered into an additional contract with the School District for the construction of an auditorium in conjunction with other facilities, hut had not obtained a permit.
This is only mentioned as an example of city power to regulate a particular phase of public building construction. Apparently no zoning ordinance was violated since the city granted the permit. | [
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Sam Robinson, Associate Justice.
This appeal is from an order of the probate court allowing the claim of appellee, Annie Bozark, against the estate of William Franklin Irvin, deceased. Appellee filed a claim for $2,570.00 for furnishing room, board, nursing care, ambulance service and medical expense to deceased. The administrator refused to allow the claim, and after hearing the court allowed $1,275 for services rendered and $20 for ambulance and medical expense.
Appellee lives in Marmaduke, where she owns her home. In May of 1957, the deceased, who was appellee’s uncle, moved his house trailer onto appellee’s property immediately behind her house, and lived there until September of the same year. In the spring of 1958 deceased returned to Marmaduke and shortly thereafter once again moved his trailer into appellee’s back yard. He lived there until his death on April 5, 1959, except for an interval of two weeks while he stayed in Paragould.
Deceased was past 80 years of age when he died. It is abundantly clear that during the time he lived on appellee’s property he was unable to care for himself and needed a great deal of attention. It was necessary for appellee, with the help of her son, to prepare his meals, wash and iron his clothes, clean his trailer and care for him almost constantly. During cold weather deceased moved into appellee’s home so he would be more comfortable. There is ample testimony to the effect that deceased was an elderly feeble person who required someone to look after him. There is sufficient evidence to support the court’s finding that the services were performed by appellee.
Appellant argues that the services of appellee to the deceased were gratuitous at the time they were rendered and she cannot now say there was an implied contract to pay for them. We agree with the ruling of the court below that this case comes within the fundamental principle that where a party accepts the beneficial results of another’s services the law implies a previous request and a subsequent promise to pay for them. Nissen v. Flournoy, 160 Ark. 311, 254 S. W. 540. Appellant also urges that there is a presumption that the services are gratuitous where they are rendered by members of the deceased’s family. Appellee was 49 years of age and her uncle was over 80. They had not seen each other for fifteen years prior to 1957. We have said the presumption urged by appellant is less strong where the relationship becomes more remote. Capps v. Cline, 227 Ark. 201, 297 S. W. 2d 654. We cannot say that all of the elements which give rise to the presumption were present here.
Appellant further argues that the allowance of the claim was excessive. Deceased had two bank accounts totaling about $9,800 when he died. He was receiving each month $100 from a teachers’ retirement fund, $45 from one daughter and approximately $150 from another daughter, both of whom lived in California. Despite this income, he showed miserly qualities and contributed very little, if any, to his own support. On the other hand, appellee worked as a waitress for as little as $12 per week, yet it appears that she paid for practically all of deceased’s support. The award of the court was on the basis of $75 per month for 17 months. We cannot say this was in excess of the value of the services rendered. In this same vein appellant questions the admissibility of the testimony of Martha Newberry, who appeared as an expert on the value of services in caring for elderly people. Her testimony is challenged on the ground that the services rendered by appellee were not similar to the services used by the witness in setting the value. Whether or not the qualification of a witness with respect to knowledge or special experience is sufficiently established is a matter resting in the discretion of the court, whose determination is usually final and will not be disturbed by an appellate court except in extreme eases where it is manifest that the trial court has fallen into error or has abused its discretion and that prejudice to the complaining party has resulted. Firemen’s Ins. Co. v. Little, 189 Ark. 640, 74 S. W. 2d 777. We find no error here.
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Sam Robinson, Associate Justice.
This suit was filed by Imogene Hyde, administratrix of the estate of M. D. Hyde, against appellant, The Travelers Indemnity Company, on a policy of insurance issued and delivered to Mr. Hyde. Among other things the policy provides to indemnify Hyde in a sum not exceeding $2,000 for medical expenses incurred due to injuries received while occupying an automobile. Hyde was injured while driving a motor vehicle on the 17th day of July, 1959, and died a few days later as the result of such injuries. The insurance company admits the issuance of the policy and that an accident occurred which resulted in the death of Hyde. The insurance company further admits the expenditure of a sum in excess of $2,000 for medical, surgical, X-rays, ambulance, professional nursing, hospital, funeral and burial expenses. But the company denies liability on the ground that at the time of the accident Hyde was occupying an automobile furnished for his regular use.
The case was tried before the court sitting as a jury, and from a judgment in favor of the administratrix the insurance company has appealed.
The parties stipulated as follows: “It is stipulated and agreed that at the time of the accident which resulted in the death of M. D. Hyde, he was driving a motor vehicle furnished and owned by his employer, Fort Smith Couch and Bedding Company. Said vehicle was assigned to M. D. Hyde for his exclusive use and was the only vehicle driven by him in the course of his employment by Fort Smith Couch and Bedding Company. This vehicle was a tractor and trailer used for hauling furniture for said Company to various parts of the United States in the course of business for the Company, and was never used at any time for the personal use of M. D. Hyde.”
The controversial provisions of the policy provide: “The Travelers Indemnity Company . . . agrees with the insured ... To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, nursing and funeral services: . . . To or for the named insured and each relative who sustained bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ caused by accident, while occupying or through being struck by an automobile.”
Under the heading “Exclusions” the policy also provides: “This policy does not apply under Part II [Medical Payments] to bodily injury: . . . sustained by the named insured or a relative . . . while occupying an automobile . . . furnished for the regular use of either the named insured or any relative, other than an automobile defined herein as an ‘owned automobile.’ ”
Appellant contends that the truck Hyde was driving at the time he was injured was furnished for his regular use within the meaning of the exclusion provision and that the insurance company is therefore not liable. The sole point raised on appeal is whether the automobile was furnished to Hyde for his regular use within the meaning of the exclusion provision of the policy.
The provisions of the policy are ambiguous. First, the policy provides that the insured will be indemnified for medical expenses if he is injured while occupying an automobile. Here he was injured while occupying an automobile, but the policy further provides that the provision for medical payments does not apply if he is injured while occupying an automobile furnished for his regular use. These provisions of the policy render it ambiguous. Just what is meant by “for the regular use of either the named insured or any relative?” If “for his regular use” means personal use, it is one thing; if partly for his personal use and partly for the use of the employer, it could mean something else. If the insured was to use it in a certain area for one purpose, and he was injured while on a trip outside that area, for another purpose, then there could be a different meaning. Standing alone the terms of the policy are not sufficient to clear up the ambiguity, and the stipulation is not sufficient to enable the court to say as a matter of law what the ambiguous provisions really mean. True, the stipulation states the truck was furnished for the insured’s exclusive use. Perhaps it can be inferred that exclusive use means regular use. On the other hand, it could be exclusive without being regular. A jury could find that the wording in the policy “for the regular use of the insured” means personal use. This language certainly has that connotation. And the jury could reach the conclusion that the term means “for the benefit of the insured.” If this construction were put on the language by a jury, then under the facts as set out in the stipulation the insured would be entitled to recover.
Some cases, such as Davy v. Merchants Mut. Cas. Co., 97 N. H. 236, 85 A. 2d 388; Home Ins. Co. v. Kennedy, Del. Super., 152 A. 2d 115; Voelker v. Travelers Ind. Co., 260 P. 2d 275; and Farm Bureau Mutual Automobile Ins. Co. v. Marr, 128 F. Supp. 67, have been decided on the theory that “for his regular use” means practically any use by the insured. In the Farm Bureau case the insured had never before driven the car in which he was injured, and there was nothing to show there was any probability that he would ever have driven it again, yet the court held the car was furnished for his regular use. We think the better view is expressed in Pacific Automobile Ins. Co. v. Lewis, 56 Cal. App. 2d 597, 132 P. 2d 846. There the court said: “Whether an automobile is furnished by another to an insured for his regular use may reasonably depend upon the time, place and purpose for which it is to be used. One furnished for all purposes and at all times and places would clearly be for his regular use. One furnished at all times but strictly for business purposes alone could hardly be said to have been furnished for his regular use at a time and place when it was being used for personal purposes. It may be assumed that when a ear is furnished all of the time for business purposes, with permission to use the same for incidental personal purposes, all within a certain area, the car might be said to be furnished for regular use within that area. But when a car thus furnished for such a use is driven to a distant point on one occasion, with the special permission of the one furnishing the car, that particular use would hardly seem to be a ‘ regular use ’ of the car. It cannot be said, as a matter of law, that such a use on a particular occasion, which is a departure from the customary use for which the car is furnished, is a regular use within the meaning of these clauses of the policies. A question of fact is presented which calls for an interpretation of the language of the policies relating to the facts involved.”
And in Farm Bureau Mutual Automobile Ins. Co. v. Marr, 128 F. Supp. 67, in holding that a similar provision in a policy presented a question of fact to be determined by the facts of the particular case before the court, the court pointed out certain signposts to be looked for, as follows:
“1. Was the use of the car in question made available most of the time to the insured?
‘ ‘ 2. Did the insured make more than mere occasional use of the car?
‘ ‘ 3. Did the insured need to obtain permission to use the car or had that been granted by blanket authority?
“4. Was there a purpose for the use of the car in the permission granted or by the blanket authority and was it being used for such purpose?
“5. Was it being used in the area where such car would be expected to be used?”
There are two principles of law firmly established in this State that apply here: (1) Provisions of a policy of insurance “must be construed most strongly against the insurance company that prepared it, and if a reasonable construction could be placed on the contract that would justify recovery, it would be the duty of the court to so construe it.” Metropolitan Life Ins. Co. v. Guinn, 199 Ark. 994, 136 S. W. 2d 681; Phoenix Assurance Co. v. Loetscher, 215 Ark. 23, 219 S. W. 2d 629; Washington Fire & Marine Ins. Co. v. Ryburn, 228 Ark. 930, 311 S. W. 2d 302. (2) Where a written contract is ambiguous, its meaning is a question of fact for the jury and should be submitted to a jury. Fort Smith Appliance & Service Co. v. Smith, 218 Ark. 411, 236 S. W. 2d 583.
In the case at bar, undoubtedly the language “while occupying an automobile . . . furnished for the regular use of either the named insured or any relative” is ambiguous, and hence the true meaning of the language was a jury question. Here the cause was submitted to the trial court sitting as a jury, and the findings of the court have the same force and effect as a jury verdict. Occidental Life Ins. Co. of Calif. v. Sammons, 224 Ark. 31, 271 S. W. 2d 922; Gray v. Ford, Bacon & Davis, Inc., 210 Ark. 995, 198 S. W. 2d 508.
Affirmed.
Harris, C. J., and Ward, J., dissent. | [
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Sam Robinson, Associate Justice.
The issue here is the priority of liens. On August 17,1959, appellees filed suit against Bonnie N. Connelly for an attorney’s fee in the sum of $3,559.90. On the same date the plaintiffs filed an affidavit and bond for the attachment of a certain Ford automobile alleged to be owned by Mrs. Connelly. The summons and attachment were served by the sheriff on August 20th and the sheriff took possession of the automobile under the order of attachment. On August 29,1959, appellant Francis filed an intervention alleging that on July 23, 1959 he had loaned Mrs. Connelly $1,000 on the automobile later attached by the appellees and that his mortgage was superior and paramount to the attachment which appellees had caused to be executed against the automobile. Later the case was tried and there was a judgment in favor of appellees against Mrs. Connelly for the amount asked in the complaint. The order of attachment was sustained and on order of the court the sheriff sold the automobile. It sold for $1,475, and the court ordered this money paid to appellees to be credited on the judgment. Francis, the intervenor and mortgagee, has appealed.
Ark. Stat. § 75-160 provides, among other things: “(a) No conditional sale contract, conditional lease, chattel mortgage, or other lien or encumbrance or title retention instrument upon a registered vehicle, other than a lien dependent upon possession, is valid as against the creditors of an owner acquiring a lien by levy or attachment or subsequent purchasers or encumbrances with or without notice until the requirements of this article . . . have been complied with, (b) There shall be deposited with the department [Department of Revenues] a copy of the instrument creating and evidencing such lien or encumbrance, which instrument is executed in the manner required by the laws of this State with an attached or indorsed certificate of a notary public stating that the same is a true and correct copy of the original and accompanied by the certificate of title last issued for such vehicle.”
In Cross v. Fombey, 54 Ark. 179, 15 S. W. 461, this Court said: “We have no hesitation in saying that, under the statutes of this State, an order of attachment becomes a lien upon the property of the defendants, subject to seizure on execution for the debts of the defendant in the county, from the time the order comes to the hands of the officer, and that, by levy of the attachment and judgment sustaining the same, such inchoate lien is perfected, and takes precedence of the lien of a mortgage executed before the order of attachment came to the hands of the officer, but not recorded until afterwards. ’ ’
In the case at bar, a copy of the mortgage was not filed with the Department of Revenues, as required by the foregoing statute. Section 60, par. (c), of Act 142 of 1949 originally required that holders of title retaining notes or contracts of purchase on registered vehicles must record same with the circuit clerk in the county where the payor resides. By Act 208 of 1951, paragraph (c) was specifically repealed. In 1959 a new title registration act (Act 307) was passed, which in many respects is indentical with Act 142 of 1949, but which omits any requirement that liens or encumbrances be recorded in the county of the purchaser. We therefore conclude that it was the intention of the Legislature to eliminate any requirement that such instruments be recorded by the circuit clerk. See West v. General Contract Purchase Corp., 221 Ark. 33, 252 S. W. 2d 405.
Affirmed. | [
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Paul Ward, Associate Justice.
J. Hal Jones died testate on October 16, 1958, and shortly thereafter appellant was appointed executrix. On the 25th of the same month the first notice to creditors was published which meant that April 25, 1959 was the last date (as provided by Ark. Stats. § 62-2601) on which a claim could be filed against the Jones estate. On November 6, 1958 appellee, Arkansas Farmers Association, Inc., filed its claim against said estate in the amount of $495.00. This claim purportedly was for the sale of chicks by appellee to said Jones although it was not so stated in the claim as filed. The executrix disallowed appellee’s claim on May 28,1959. Later, after a full hearing on the merits, the Probate Court ordered appellee’s claim paid in full. It is from said Order that appellant prosecutes this appeal.
For a reversal of the Order of the Prohate Court appellant contends (a) that the said claim was not made out and filed according to the provisions of Ark. Stats. § 62-2603; (b) that the Probate Court erred in admitting testimony offered by appellee to explain and prove its claim; and (c) that there is no competent proof that any goods or property were sold or delivered by appellee to said Jones. Other objections are discussed by appellant which we shall briefly note later. We are unable, however, to agree with appellant in any of the three contentions above mentioned.
(a) The claim heretofore mentioned which was filed by appellee merely showed the invoice number and a balance of $495.00 on what appears to be a statement blank or letterhead of appellee. It was certified by Waymond W. Elrod, Comptroller. Attached to the claim was an affidavit by appellee’s attorney to the effect that all payments on the account had been credited, that there were no offsets, and that the amount of the claim ($495.00) was correct. It is appellant’s contention that the above stated claim does not satisfy the requirements of said § 62-2603 in that it does not describe the nature of the claim. The pertinent part of this section reads: “No claim shall be allowed against an estate . . . unless it shall be in writing, describe the nature and amount thereof, if ascertainable, . . . that the amount is justly due, . . . ”
We think it is unnecessary to decide (and we do not here decide) whether in this instance appellee’s claim was sufficiently described to meet the requirements of the statute, because we have reached the conclusion that the executrix waived any possible non-compliance on the part of appellee by failing to deny the claim or to object to its form until the statute of non-claim had run. As heretofore noted, the last day for filing claims was April 25, 1959 and the executrix did not deny appellee’s claim until May 28, 1959. There are several sections of the statutes (§ 62-2601, § 62-2602, § 62-2603, and § 62-2604) which deal with the filing of claims against an estate. It appears to us that the overall purpose of these statutes is to effect and facilitate the payment of just claims against an estate within the specified time and not to defeat a just claim on a technicality that might entrap the claimant. The rule which we think achieves the above purpose, and which we hereby approve, is well stated in 21 Am. Jur., Page 593, § 373, Form and Requirements of Claim. It is there stated: “If there is any uncertainty in a claim filed against a decedent’s estate, it is incumbent on the personal representative to call for clarification. Where no objection is made by the executor or administrator against the sufficiency of the form in which a claim is stated he may be deemed to have waived the insufficiency. If he relies on defects in form in refusing to allow a claim, he should make known his objection seasonably.”
(b) In view of what we have heretofore said and the conclusion heretofore reached it must necessarily follow that appellee had the right to introduce testimony in Probate Court in an attempt to establish the validity of its claim. This is what appellee attempted to do in the introduction of its testimony and we are unable to see how appellant was prejudiced in any way because she had full opportunity to show that the claim was not a valid one if she desired to do so.
(c) Appellant’s assertion that “there is no competent proof in the record showing that any goods or property were ever sold or delivered to J. Hal Jones”, is not substantiated by the record. Waymond W. Elrod, appellee’s employee in the capacity of Comptroller and Chief Accountant, states that he was in charge of all of the records, that the records reflect the transactions between appellee and Hal Jones; that they reflect “the sale to Mr. Jones of 4,500 Ozark White Cornish chicks” at ten cents each plus debeaking and vaccination. Also the record contains, as an exhibit, a full sheet showing numerous transactions on numerous dates between appellee and Hal Jones, verified by Elrod, and showing a balance due by Jones to appellee in the amount of $495.00. We find nothing in the record to contradict the above. In fact it does not appear that appellant seriously challenged the validity of the claim on its merits.
The record reflects that appellee filed a suit in the Circuit Court on exactly the same account mentioned above against J. Hal Jones approximately forty days before Mr. Jones died. Appellant makes several objections based on the contention that the suit was not properly revived against the executrix and on the fact that Ark. Stats. § 62-2602 was not followed in an attempt to perfect his claim by filing a copy of the Circuit Court petition in the Probate Court, etc. It is sufficient to say, we think, that this suit was voluntarily dismissed by appellee and that it chose to present its claim as heretofore set out.
It must follow, therefore, from what has been heretofore said that the Order of the Probate Court must be, and it is hereby, affirmed.
Affirmed. | [
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J. Seaborn Holt, Associate Justice.
In this action appellant, Curtis L. McClellan, sought to compel the circuit clerk of Cleveland County, Arkansas to file a complaint at law. The evidence discloses that McClellan, who was a candidate for the office of representative of Cleveland County, had attempted to file a complaint, prepared by his attorney, in a suit to contest the results of the election in which he was unsuccessful in securing the Democratic nomination. The deputy circuit clerk, in charge at the time, refused to file the complaint. It is undisputed that the appellant did not tender any filing fees at that time. Thereupon McClellan sought the circuit clerk, Henry Young, in an effort to have the complaint filed. Young informed the appellant that he would file the complaint if a $500.00 bond to secure the cost of the contest were filed. No bond was offered or filed.
In the opinion and judgment of the trial court we find this language: “* * # the Court doth find: That Petitioner attempted to file with Henry Young, Clerk, his petition to contest the nomination of Raymond C. Mays in the Primary Election of August 9,1960, on the 29th day of August, 1960; that the Clerk refused to file the same for the reason that no fees for filing and issuing process were paid or tendered, although demand was made for same; * * * The Court finds that said petition for writ of mandamus should he denied for the following reasons: 1. The Clerk was not legally bound to file the complaint until and unless the fee for filing same and issuing summons was tendered or paid. * * *”
This appeal followed and for reversal appellant says: “The Court erred in failing to issue its Writ of Mandamus requiring appellee to file said Complaint at Law and issue summons thereon.”
In the circumstances here we hold that the judgment of the trial court was correct. Arkansas Statutes (1947) § 27-302 provides: “Payment of fees prerequisite to entry of action or issuance of writ. — No action shall be entered upon the docket of any court nor any original mesne or final process issued therein, except in criminal cases and cases where the State is plaintiff, until the fees for entering the case upon the docket and for issuing such writ, and the taxes thereon, if any, be paid, or bond and security, to the approval of the clerk, given therefor; and no clerk shall be liable to an action for refusing to docket a cause or issue any writ, unless the fee and tax thereon be first tendered or secured as herein provided.” It appears undisputed here that the fees required by this section were not tendered, paid, or secured to appellee by appellant in spite of the demands made by the appellee to appellant.
Therefore, appellant’s petition for mandamus must be and is denied. Accordingly, the judgment is affirmed. | [
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