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Mr. Chief Justice Johnson
delivered the opinion of the Court.
Ths case of Biscoe et al. vs. Sneed et al., (6 Eng. Rep. 106,) is conclusive of the question here presented. The bar set up by the plea here is, that the deed of assignment had been executed and delivered before the institution of the suit, and that such deed operated per se to convey the legal interest in the note to the trustees, who held under the deed, and that consequently the plaintiffs, who were the original trustees, could not maintain the suit. The note upon which this suit is founded, and which was exhibited .upon oyer, is payable to particular persons therein specified, an?T not to bearer, and consequently the legal title in it could not pass merely by delivery. This court, in the case referred to, after citing all the cases which had previously been determined involving the same question, expressly declared that the deed of assignment did not, per se, convey the legal interest in the note, and that consequently the Trustees could not have maintained a suit at all in their own names, the equitable interest alone having passed. The transfer of the note in suit by virtue of the deed of assignment, is the only matter set up by the plea to this action, and that is wholly insufficient for the purpose as expressly held in the case in 6th English, already referred to. There cannot exist a doubt as to the right of the original Trustees to maintain this suit for the use and benefit of the Trustees, under the deed of assignment, so far as any thing appears to the contrary upon the face of the plea! The Circuit Court, therefore, erred in overruling the demurrer to the plea, and, for this error, its judgment must be reversed, and the cause remanded, to be proceeded in according to law and not inconsistent with this opinion 1 | [
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Mr. Justice Scott
delivered the opinion of the Court.
Our statute, as well as the whole current of our decisions, fully authorized the action of the court below in granting the motion made in this case to file an amended declaration! The record shows that one was filed in pursuance of that leave and within the time allowed. And we think it entirely clear, in view of this statute, of the powers of the court otherwise, and of those decisions, that the court below erred in granting the motion at the succeeding term to strike this amended declaration from the files, and in rendering a judgment against the plaintiff.
The judgment must for this error be reversed, and the cause remanded, to be proceeded with. | [
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Mr. Justice Scott
delivered the opinion of the Court.
The record presents no testimony whatever upon which the verdict and judgment can rest, as against Whinnery. (Digest, p. 698, sec. 19.) And although we would not disturb it as to Wooddy, against whom the testimony is by no means conclusive, if it was not against both. (Dig., p. 699, sec. 20,) yet being joint and clearly without testimony, as to one, it must be reversed, and the cause remanded. | [
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Mr Justice Walker
delivered the opinion of the Court.
The issue in this case is like that of the State Bank v. Roddy et al; and upon motion of the defendant the record was excluded from the jury because in the commencement of the order of court in which a non-suit was entered, in stating the names of the parties to the action, there is an omission of the name of one of the defendants, and because other parties, who executed-the note in suit, appear to, have been sued in the first action, which are not embraced in the last. These are the only grounds of variance which exist in» point of fact, so far as we have been able to discover. And these we have heretofore held to be immaterial. State Bank v. Roddy et al, and the cases there cited.
The circuit court erred in excluding the record as evidence, and for this error the judgment must be reversed, and the cause remanded, to be proceeded in according to law. | [
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Mr. Justice Walken
delivered the opinion of the Court.
The only question presented by the record relates to the sufficiency of the written evidence to prove a new promise, such as would take the case out of the operation of the statute of limitation.
The letters offered in evidence were not sufficient to prove an unqualified acknowledgment of the debt as a debt then due, or a promise to pay, such as is necessary to remove the statute bar, as laid down in the case of Brown v. State Bank, 5 Eng. R. 134, and several more recent adjudications of this Court.
Let the judgment of the Circuit Court be reversed. | [
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Mr. Chief Justice Johnson
delivered the opinion of the Court.
The only objection made to the indictment, upon the motion to quash, was, that the offence was not charged to have been committed with a felonious intent. The question therefore to be determined, is, is the indictment defective for the reason that the acts charged to have been committed by the defendant, are not charged to have been committed feloniously, or with a felonious intent. The general rule is, that the charge must be laid in the indictment so as to bring the case within the description of the offence as given in the statute, alleging distinctly all the essential requisites that constitute it. Nothing is to be left to implication or intendment. Generally speaking it is sufficient to pursue the words of the act; but if in pursuing them there should be any ambiguity or uncertainty in charging the offence, the pleader should regard the substance and legal effect of the enactment. And when words or terms of art are used in the description that have a technical meaning at common law, these should be followed, being the only terms to express, in apt and legal language, the nature and character of the crime. In all cases of felonies at common law and some also by statute, the felonious intent is deemed an essential ingredient in constituting the offence, and hence the indictment will be defective, even after verdict, unless the intent is averred. The rule has been adhered to with great strictness, and properly so where this intent is a material element of the crime. Sir William Black stone observes that the term “felony” originally denoted the penal consequences of the crime, namely, the forfeiture of the lands and goods, but that by long use, it came at last to signify the actual crime committed. He further remarks that the idea of felony is so generally connected with that of capital punishment, that it is difficult to separate them, and that the interpretation of the law conforms to that usage; and therefore, if a statute makes any new offence felony, the law implies that it shall be punished with deatlq that is, by hanging as well as by forfeiture, unless the offender prays the benefit of clergy. (4 Bl. Com. 97. Wend. Ed.) This view accounts for the necessity of the averment of a felonious intent in all indictments for felony at common law; and also in many cases when made so by statute; because if it is used, in the sense of the law, to denote the actual crime itself, the felonious intent becomes an essential ingredient to constitute it. The term signifying the crime committed, and not the degree of punishment, the felonious intent is of the essence of the offence, as mncb so, as the intent to maim or disfigure, in the case of Mayhem, or to defraud in the case of forgery, are essential ingredients in constituting these several offences. But in eases where this felonious intent constitutes no part of the crime, that being complete under the statute without it, and dependent upon another and different criminal intent, the rule can have no application in reason however it may be upon authority.
The statute upon which the indictment in question is founded, describes the several acts which make up the offence, and then declares the person to be guilty of felony, punishable by fine and imprisonment. The transmission or presentation of any deed or other writing to any office or officer of the government in support of, or in relation to, any account or claim, with the intent to defraud the United States, knowing the same to be false, are the only essential ingredients. The felonious intent is no part of the description, as the offence is complete without it. Felony is the conclusion of law from the acts done with the intent described, and makes part of the punishment; as in the eye of the common law, the prisoner thereby becomes infamous and disfranchised. These consequences may not follow, legally speaking, in a government where the common law does not prevail; but the moral degradation attaches to the punishment actually inflicted. This question arose in a case before Park, J. on the Northern Circuit in 1831, on the trial of an indictment for burning stacks of grain, which is made felony by the 22 & 23 Car. 2. The second count charges the prisoner with aiding and abetting, and an objection was taken that the indictment should have averred that he was feloniously present aiding and abetting. Park, J., was inclined to think the objection fatal, but allowed the trial to proceed and the prisoner was acquitted on the facts. Carrón and another’s case, 1 Levin’s Northern Circuit. It again arose before Lord Lyndhurst, C. B., at the Durham Assizes in 1834, on an indictment under the statute of Mayhem, 9 Geo. 4, ch. 31 & 2. An objection was taken after conviction that the indictment did not allege that the prisoner upon the prosecutor feloniously did make an assault, áte., but it was held that, as the indictment described the offence in the words or terms of the statute, it was sufficient. (Deacon on Cr. Law, supft. 1652, 1681, Rex v. Thomas Liddle.) This statute, after describing the acts constituting the offence, concludes, like the one before us, that every such person shall be guilty of felony, and on conviction shall suffer death. The decision therefore bears directly upon the question in hand, and as the principle seems to have been given up in the country from whence it was derived, and at the best is here but the merest technicality, it is difficult to perceive any ground for still giving it effect. It would be otherwise, if the felonious intent was descriptive of the offence, and not simply of the punishment. (See 8 Howard’s U. S. Rep. 44, 5 and 6.) That case is directly in point, and fully conclusive of the question here presented. The statute upon which the present indictment is founded, also describes the several acts which make up the offence, and then declares that the person who shall commit such acts shall be adjudged guilty of larceny, and that he shall be punished in the same manner as if he had feloniously stolen the property. The marking, branding or altering the mark or brand of any animal (the subject of larceny,) being the property of another with an intent to steal or convert the carcass or skin of any such animal to one’s own use, or to prevent identification thereof by the true owner, are the only essential ingredients. The felonious intent is no part of the description, as the offence is complete without it. The felony is the conclusion of the law from the acts done with the intent described, and makes part of the punishment; as under our statute the prisoner is rendered infamous and also disfranchised. {Digest, chap. 51, part 10, and secs. 3 and 4.) The objection to the indictment therefore is not well founded in law, and consequently the Circuit Court erred in sustaining the demurrer. The judgment of the Circuit Court of Jackson county herein rendered is consequently, for the error aforesaid, reversed, annulled, and set aside, and the cause remanded, to be proceeded in according to law and not inconsistent with this opinion. | [
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Mr. Chief Justice Johnson
delivered the opinion of the Court.
The legal sufficiency of the plea interposed by the appellees, is the only matter presented by the record for the consideration and decision of this court. The plea admits the taking of the property mentioned in the declaration, but, by way of a bar to this suit, sets up that they afterwards sold it to one Absalom B, Joiner, against whom the plaintiff subsequently brought his action of replevin in the detinet, and recovered a judgment for the restitution of the said property and for the sumpf six dollars and fifty cents for his damages caused by its detention, together with all his costs in that behalf laid out and expended. This plea does not contain such matter as would constitute a valid bar to the present action of trespass, if it were even in proof that the defendant in the replevin suit and the defendants here were all liable as joint trespassers in the original taking. If they had all united in the original taking, they could still have been sued separately and separate recoveries had against each, and one judgment could not have been pleaded as a bar to a suit against the other defendants. Where a recovery has been had against a joint trespasser, there must, at least, be an execution thereon, and that may be deemed an election by the plaintiff de melioribus damnis, and sufficient to conclude him. This is the doctrine laid down by the Supreme Court of New York, in the case of Livingston vs. Bishop and others, (1 John. R. 290,) where the authorities are cited and fully discussed. It is conceded that it is not necessary to show that the same action, in form, has been previously prosecuted against the party, but it is essential, in order to constitute a bar, that the recovery set up should be founded upon the identical cause of action. What is meant by the same cause of action, is, where the same evidence will support both actions, although they happen to be grounded on different writs. See Rise vs. King (7 John. R. 19,) and Johnson vs Smith, (8 John. R. 383,) in the latter of which cases it was said, “The former suit was for cutting and carrying away wheat, and was for the same cause of action, and though the former action was denominated by the justice an action of trespass on the case, and this was trespass, it did not alter the application of the rule, which depended not upon the identity of action, but upon the same proof in both cases.” Let us test the case before us by the rule here laid down, and see whether the former recovery set up in the plea can be permitted to prevail as a bar to this suit, or, in other words, was the proof the same in both cases. The action in which the recovery relied upon was had, was replevin in the detinet, and prosecuted against the vendee of the present defendants. It is admitted that the mule, which was in controversy in both suits was one and the same, yet it cannot be properly said that each case involved precisely the same points, and that the proof was necessarily the same. If the plaintiff had instituted his action of re-plevin in the detinet against the present defendants, thereby waiving the tort of the original taking, and had prosecuted his suit to final judgment, there can be no doubt but that such judgment would have been a complete bar to the present action. But the state of case is wholly different when the recovery is had against a stranger, as he was not guilty of any wrong in the original taking, and consequently there was none for the plaintiff to waive. The plaintiff’s cause of action against the present defendants was complete the moment the trespass was committed, and it was not destroyed, or in any wise affected, by the sale and transfer of the property to a stranger. If the property has been restored to the plaintiff, either by the voluntary act of the defendants, or by means of a suit prosecuted against their vendee, it is manifest that he cannot recover its value in this action; and that evidence of such restoration would be admissible for the purpose of mitigating damages! True it is that the plea avers that the recovery in the replevin suit covers all the trespasses complained of in this declaration, yet such averment cannot aid the plea, as the question of the tortious taking was not involved in that suit; and consequently if damages were recovered for such taking, .such recovery cannot relieve these defendants from their respon sibility. We are satisfied, therefore, the plea interposed by the defendants in this case is wholly insufficient as a bar to the present action, and that consequently the demurrer to the same ought to have been sustained.
For tifia error, therefore, the judgment of the Johnson Circuit Court is reversed, annulled, and set aside, and the cause remanded, with instructions to be proceeded in according to law and not inconsistent with this opinion. | [
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Mr. Justice Scott
delivered the opinion of the Court.
These proceedings were regularly instituted before Shaw, a justice of the peace, on the 13th July, 1848, and progressed regularly until a jury rendered a verdict in favor of the original plaintiff on the fifth of August of the same year. But no judgment was in point of fact ever entered up upon this verdict until the 5th day of November, 1849, when, in obedience to an order of the Circuit Court, Parks, a justice and the successor of Shaw, entered up a judgment as of the date of the 5th of August, 1848. From this judgment so entered up. an appeal was regularly taken to the Circuit Court, on the 17th November, 1849, where both parties appeared at the April term, 1850, and after having the transcript of the justices’ proceedings corrected, the cause was regularly tried and a verdict and judgment given for the original plaintiff ; from which an appeal was taken to this Court.
There was no motion for a new trial or in arrest of judgment, and no exceptions taken to the proceedings of the Circuit Court touching the appeal.
It is perfectly clear that the Circuit Court had rightful jurisdic-ion of the cause, and there is nothing in the record to indicate any thing else than that this jurisdiction was properly exercised.
It was competent for the justice, Shaw, to have entered up the judgment nunc pro tunc, on motion, at any time after the verdict and before he went out of office, and it was equally competent for his successor, without having been stimulated to do so, as he was by the Circuit Court. Uutil the rendition of the judgment, no appeal lay to the Circuit Court.
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Mr. Justice Walker
delivered the opinion of the Court.
This suit was instituted to set aside certain deeds of trust alleged to have been made in fraud of the rights of the complainant, and to allow her dower in the estate so conveyed.
To entitle the complainant to recover, it is indispensably necessary, not only to alleged and prove that such fraud was in fact perpetrated, but it is also equally necessary to show that the complainant had a vested interest in the estate so conveyed] for, although the parties to the deed may have entered into it with the purpose and intent to defraud', yet, unless the rights of the complainant were affected thereby, she should not be heard to complain. In the case of Lightfoofs Ex'rs v. Calgin & wife, 5 Munf. Rep. 71, a question of this kind was presented under circumstances much resembling the one before us. Judge Ronae, in delivering his opinion, said, “Admitting this deed to be clearly fraudulent, does it not cease to be so quoad the appellees, if they have no interest to entitle them to impeach it ? Must there not be two parties before a deed can be considered and set aside as fraudulent, the party defrauding and the party defrauded, and can the last exist unless he has a vested interest ? It is held that by common law, a person having a debt due him, or a right or title to a thing, might avoid a fraudulent conveyance made to deceive or defraud him of that right or debt; but it is said that if the conveyance was precedent to the right or debt, there was no way to set it aside, and again it is held that he who hath a right, title, interest, debt or demand mere puisne, shall not avoid a fraudulent gift or estate precedent by the common law. It is by these principles of the common law that the case before us is to be tested; for the statutes made in aid thereof only apply to creditors and purchasers.”
And this court held in the case of Meux v. Anthony et al., 6 Eng. 411, that one who would set aside a deed as fraudulent, must show that he has legal existing rights, that they are affected by such fraudulent contract, and that the contract is in fact fraudulent, citing 1 Mun. 196, ib. 281, 4 ib. 581. 2 J. R. 283, 4 ib. 671, 682, 687.
So that we may safely say that it is not sufficient that there are remote, possible, contingent rights, which may be affected by the transfer; but there must also be existing vested rights or interest in the property conveyed.
The estate conveyed by deed in this ease was slaves which came to the grantor by marriage with the complainant. There can be no doubt but that the husband’s title to the slaves thus acquired was as absolute and perfect as if held by purchase, and consequently his right to sell them the same. The wife had no other or greater interest in them than in any other slaves owned by the husband.' And here the inquiry arises, what was that interest ? Is it possible that an unqualified, unlimited estate can exist in one, and another or lesser estate exist in another at the same time ? Unquestionably not, for the former covers every interest, and there is none left to be held. The complainant therefore had no vested present interest in the slaves. The interest which she claims is a dower interest, not existing, yet dormant during the life of the husband, as in the case of real estate, but dower in such property as he may be possessed of at the time of his death. Place this shadow of title upon the most favorable grounds then, and it is a right dependent upon a contingency, that is, if the husband should die possessed of the property the law will confer an interest. Under this view of the case, fully sustained by the authorities already cited, we have no hesitation in saying that even if these deeds were affected with fraud, the complainant had no such existing vested rights in the property as to entitle her to be heard upon an application to set them aside.
We are, however, by no means prepared to say tbat the facts in this case show it to be fraudulent. It is quite evident that much importance has been attached to the fact that the slaves conveyed by the husband came to him by marriage with the wl!o, cud that Ilia a Pie;- disposition of them was esteemed au infringement of the rights of tbs wife Such, we have shown, is not the case. Her rights were no greater in these slaves than in any others owned by the husband, whether held by purchase or otherwise. Nor is there the hardship in this rule by which the husband acquires title to the personal property of the wife by marriage, which is supposed to exist; for whilst the husband acquires title to the personal property, he becomes liable for the wife's debts, and she at the same time acquires a life estate in dower to all of his lands then held, or which may be thereafter acquired. So, that whether the one or the other is the gainer in a pecuniary point of view, (if that should be considered an inducement for its consummation) must depend upon their circumstances respectively at the time the marriage is consummated.
In this instance, so far as we may infer from the facts presented, the wife was certainly gainer. Her estate at that time consisted of 160 acres of land and about •$ 10,000 worth of personal property. The husband, estimating his property at its supposed value at his death, owned about 10,000 acres of land, several improved town lots and about $10,000 worth of personal property. It will at once bo seen that at any fair ordinary value of ibis property, the wife’s dower would equal, if not exceed, the. whole amount of estate which the husband acquired by marriage; and it is quite evident that she has actually received for dower more than the whole value of the slaves so conveyed. It is true that there is no data from which a certain estimate may be made, but enough appears to render it altogether probable that no injustice has been done her; but, on the contrary, that considering her age and the fact that she had no children to provide for, she has quite an ample estate to sustain the most respectable position in society, which it is presumed a lady of her advanced age could desire to occupy.
Looking, then, beyond the circumstances of the parties to inducements for perpetrating a fraud upon the rights of the wife, there is no evidence of ill feeling or disrespect between the husband and wife; on the contrary, so far as we may infer from the facts before us, the most perfect harmony and good feeling existed. The deeds were made several years before the husband’s death. It was altogether natural and proper that the father, in advanced life, should provide for his children. The amount given, in view of the number of children, and the amount of estate was quite reasonable, and the fact that the property was in Arkansas, the residence of part of his children and remote from his own, at once suggests the propriety as a matter of convenience of selecting it in preference to other property. These circumstances are susceptible of a construction favorable to the honest intentions of the grantor, and should be so considered in the absence of countervailing circumstances connected with them. Of this class there is one which does not well harmonize with the avowed intent of the grantor. It is in the reservation of the use of the slaves during his life. This is not altogether reconcilable with the idea that he desired to advance the interest of his children, a portion of whom may well be supposed to desire the use of the property, and the residue of the children too young to take charge of it. In this respect, the deed partakes of the nature of a will. It suspends the use of the property until the death of the donor. Ill health, advanced age, dislike to the wife, the amount conveyed and other like circumstances, when connected with this reservation of the property until death, would have gone far to fix upon the husband the design to substitute this instrument for a will; but such is not the case in this instance. On the contrary, with the exception of this reservation of use in the deed, the facts are all reconcilable with the general avowed purpose of the deed, and must be so considered by us. Wherefore we are of opinion that the evidence is not sufficient to sustain the allegation of fraud.
Had this, however, been otherwise, and a fixed and avowed determination on the part of the husband to defeat the widow’s right to dower, there is not wanting high authority for sustaining the validity of the deed; In the case of Lightfoofs Ex v. Calgin and wife, above cited, it appears that Lightfoot, being the owner of a large estate, of advanced age, in bad health, and only a few months before his death, became displeased with his wife, and took counsel as to the most effectual means of placing his property beyond her reach after his death, and thereupon in pursuance of such counsel, conveyed by deed in trust for the benefit of his children by a former wife, 75 slaves, and all of his other personal estate including money and debts, reserving to himself the possession and use thereof during his life. In this case it will be seen that the motives, the declarations, the circumstances and the act, all tended to fix upon the grantor the intention to cut off the widow, yet the court of appeals of Virginia, after a thorough investigation of the subject, held the deed valid.
It is unnecessary, in the case before us, to press the inquiry further, or to decide whether a deed evidently intended to take the place of a will manifestly unjust to the wife should or not be set aside. It is sufficient to say that such is not the state of case before us.
The decision of the Hempstead Circuit Court must in all things be affirmed. | [
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Mr. Justice Scott
delivered the opinion of the Court.
We have considered the main question discussed in this case, as to when the statute of limitations begins to run upon notes executed to the State Bank under the provisions of the 9th, 10th and 11th sections of Liquidation Act, approved the 31st Jan’y, A. D. 1843, (Pamph. Acts,p. 80,) and are prepared to decide it; but, upon a more careful examination of the transcript, find that that question does not arise upon this record.
The declaration is in the usual form, upon a note bearing date the 1st April, 1843, payable twelve months after date. To this, the bar of the statute of limitations was interposed by plea, and to remove it the Bank replied specially that the defendant made a payment on the note in question on the 1st day of April, 1844, but alleged no other facts.
Now, if to this replication a demurrer had been interposed, it is perfectly clear that the law would have been for the defendant. Because the promise alleged in the declaration being to pay twelve months after the first day of April, 1843, the note matured at that time, and the cause of action accrued under the genera] law, immediately upon default of payment, in accordance with the alleged promise. And as the payment set up in the replication was alleged to have been made on the day of the maturity of the note, under the general law, its effect could not under that law, defer the time when the statute would begin to run, and consequently the bar was perfect on the 1st day of April, A. D. 1847, more than ten months before this action was commenced.
Nor could this result have been avoided^ by any obligation upon the court to apply the provisions of the three sections cited of the liquidation statute to the state of facts as shown by the pleadings. Because it is manifest that these provisions of láw are applicable only to a particular class of debtors, and never did apply to every person, who might, after the day when that statute took effect, execute a note to another person at twelve months with satisfactory security; nor to every person who might execute such a note to any bank; nor indeed did they ever apply to every person who might execute such a note to the State Bank itself after that day, as is apparent by the further provisions of the twelfth (§ 12) section of the statute for the sale of “property purchased for the use and benefit of the bank,” and of certain “contingent interests” of the bank and branches “for cash in hand or upon a credit not to exceed one year, upon the purchaser executing a note to said bank with good and sufficient security, to be approved by said Receivers.” Therefore, there could not have been any place for the court to have applied the provisions of the three first cited sections of the statute, unless in addition to the fact of payment it had been also alleged in the pleadings, that the note in question was one of those that were executed under these provisions.
And this is clear, when it is remembered that for any thing that appears to the contrary in the pleadings, the note in question may have been, in fact, one of those that were executed under the provisions of the twelfth section on a sale of property, or of some contingent interest of the bank or one of its branches; and, if so, stood upon a different footing as to the question of law1 mooted.
It is true, however, that in the case at bar, a demurrer was not interposed, and that issue of fact was taken on the special replication. Nevertheless upon the trial the defendant below excepted to a part of the testimony, and was overruled, and moved for a new trial, as well upon this ground as upon that, that the finding of the court was contrary to law and evidence.
As no foundation was laid for verbal testimony touching the receipt, the witness ought not to have been permitted to speak of it. But if this objection was waived, and it was considered that the Bank had made out, by proof, every allegation both of the declaration and the replication, still a case for a judgment against the defendant below, was not made out to displace the statute bar interposed by him. The court below erred, therefore, in refusing the motion for a new trial, and for this error the judgment must be reversed, and the cause remanded, not that a judgment non obstante veredicto shall be rendered for the defendant below, but that a repleader shall be awarded on the application of the Bank, so that that party may have an opportunity to file an amended new special replication, and displace the statute bar if she can by allegations and proof. 1 Chitty Pl., 10 Amer. Ed. 583, marg. 3 Call R. 1, Bogle et al. Conway, ex. 4 Leigh R. 480, 483, Rice v. White. | [
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Mr. Chief Justice Johnson
delivered the opinion of the Court.
This was an application for a writ of certiorari and superse-deas, which has heretofore been granted by this court, and the record and proceedings in the case returned in obedience to the mandate of the writ. The motion now presented is to quash the proceedings referred to in the petition, and to issue a perpetual supersedeas. This motion must be denied: the writ itself having-been improvidently issued, and there being no showing that the Circuit Court was incompetent to administer justice in the premises. The motion is, therefore, denied, and the petition dismissed. See Carnall vs. Crawford County, (6 Eng. 617,) and Allis vs. Commissioners of Penitentiary, decided at the present term of this court. | [
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Mr. Justice Scott'
delivered the opinion of the Court.-
The writ of certiorari, having been improvidently issued in this case, must, be dismissed. (Crawford County v. Carnall, 6 Eng. 604. Ex parte Marr, Ante. Ex parte Allis, Ant.) | [
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Mr. Justice Scott
delivered the opinion of the Court.
The indictment in this case is liable to the same objection which we have sustained against that in the case of The State vs. Minyard, in the opinion just delivered. But the Attorney General submits, that, inasmuch as the defendants below pleaded guilty in the Circuit Court, they thereby waived all objections to the indictment. The law has been long settled otherwise. No confession, however large and explicit, can have any such effect. (1 Chitty on Cr. Law, page 431, 662-3.) The defendants here but confess themselves guilty in 'manner and form as charged against them in the indictment, and, if no offence against the the law is charged, they have not confessed themselves guilty of any. But if the confession was still broader and embraced a crime, when the indictment fell short of it, and punishment followed, it would be the punishment of a crime not proceeded f»r by indictment.
And in civil pleading, this principle is equally well settled in the doctrines touching the distinctions between stating no title or a defective title on the one hand, and stating a good title or cause of action defectively on the other.
The judgment of the Circuit Court in this case must be reversed, because no offence is charged in the indictment, and the cause must be remanded, that a new indictment may be preferred to the Grand Jury. Dig., p. 403, sec. 104. | [
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Mr. Chief Justice Johnson
delivered the opinion of the Court.
The question to be determined in this case, is whether the ap-pellee has shown such an interest in the subject matter of the suit as to entitle him to a recovery. The testimony of Alston, who was the only witness who knew any thing in relation to the matter, is that Hichox and himself were selling goods together upon the steamboat Mustang, that he (Alston) had advanced to the captain of said boat the sum of nine hundred dollars, that he had possession of and a lien on all the goods upon said boat, except that Hichox was authorized to sell and pay the money to him, that he was assisting to sell the goods at the request of Hichox, and that he being very busy requested Street to put fortj bundles of cotton in Brown’s wagon for Hershy, which he pre sumed was done, and that afterwards he (Alston) was repaid the said sum of nine hundred dollars. The account that was filed before the justice, describes Iiichox as an agent, and we think that the proof, when taken in its strongest light in his favor, cannot more than establish that character. We think it clear from the evidence, that the appellee had no interest, either legal or equitable, in the subject matter of the suit, and that the whole extent of his power over it, was merely that of agent or clerk to sell the goods, then upon the boat and subject to the lien of Alston. If he sold the goods which formed the consideration of the contract sued upon, simply as the agent or clerk of the owner of the boat, it is perfectly clear that he is not entitled to maintain the suit; and consequently, that the Court below should have set aside the verdict and granted a new trial. In general the action on a contract, whether express or implied, or whether by parol or under seal or of record, must be brought in the name of the party in whom the legal interest in such contract is vested. See 1 Chilly’s Plead, p. 3, and the authorities there cited. But when an agent has any beneficial interest in the performance of the contract for commission, &c., as in the case of a factor and a broker, an auctioneer, or policy broker whose name is on the policy, or where the contract is in terms made with him, he may sustain an action in his own name; in each of which cases, however, the principal or owner might sue, unless where there is an express contract under seal, with the agent to pay him when he alone can sue. See same authorities at page ?4 and 5 and the cases cited. It is very clear that the appellee has not brought himself within either of these exceptions. We are satisfied that the appellee has not shown such an interest in the thing sued for as to entitle him to maintain this action; and that, therefore, the Circuit Court should have set aside the verdict and have granted a new trial. For this reason the judgment of the Circuit Court is erroneous, and is consequently reversed. | [
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Mr. Justice Soott
delivered the opinion of the Court.
The only questioned presented in this cause, was determined in the case of The State Bank vs. Carson et al., (5 Eng. R. 479.) Let the judgment be affirmed. | [
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Mr. Justice Scott
delivered the opinion of the Court.
A similar application was refused this party at the last tenn of this court (William J. Marr Ex parte, ante,) and this must share the same fate.- ’
When the several provisions of the constitution are considered together, we think it manifest, it never was the intention of the framers of that instrument, that causes should be brought directly into this court from the county and probate courts, and from the courts of justice’s of the peace, unless in cases where it might be absolutely necessary to prevent a failure of justice. Such an hypothesis would be utterly at war with a design to make the administration of justice cheap to the suitors, and equally accessible to the rich and the poor, at places convenient to their homes. A design which, we think, was no less prominently contemplated by the framers of the constitution than manifestly developed in the distribution of the judicial powers among the several courts, and in fixing the limits of their territorial jurisdiction. And the various subsequent enactments of the Legislature making ample and convenient provisions for appeals from these several inferior courts to the Circuit Courts, are no less the reflex of this beneficent spirit of the constitution than a vindication of the wisdom of the purposes contemplated by its framers in this connexion.
Some of the mischiefs that must otherwise ensue, were foreseen by this court, and thus graphically alluded to in the case of Frail Ex parte, (3 Ark. 564,) decided soon after the organization of this court, when expressing the opinion “that it was never designed either by the framers of the constitution or by the Legislature, that this court should be oppressed with questions of law which might arise before every justice of the peace or corporation court, by allowing them to be brought up direct on writs of error.” “The man of moderate means, the diffident suitor, and the lover of quiet will yield to the presumptuous and overbearing, and the rights of the poor will frequently be crushed by his more wealthy opponent. The spirit of litigation would be engendered, strengthened and diffused, and the usefulness of this court, in a great measure, destroyed by crowding its docket with cases, in many instances, without a shadow of law or justice to sustain them, to the annoyance of meritorious litigants and the exclusion of its legitimate business.”
And in presenting the grounds of their opinion that the applicant in that case was not entitled to bring his cause directly before the Supreme Court from the corporation court of Little Rock, because, by law an appeal was provided first to the Circuit Court, from which a writ of error would lie to this court, the court further remarked: “In examining the various provisions of the constitution, and the several laws defining the powers and duties of the different tribunals, it will be found that competent means are provided, by which all private rights may be pursued and private injuries redressed, and that the utmost harmony pervades our whole system of jurisprudence. There is no class of cases unprovided for; on the contrary, the laws are adapted to every occasion that may arise — to every circumstance that may occur, and substantial justice may be speedily administered to all. If a party feels aggrieved by one tribunal, he may, if he avails himself of the facilities offered to him, step by step, and in regular gradation in general, ascend from the most inferior to the superior court, until at last he reaches the highest point of authority and law. By this means, individual rights are secured, the errors of the one court rectified by the other, and the whole judicial system preserved entire and unbroken.”
Nevertheless, both before and since the determination of the case just cited,this court has adjudicated numerous cases brought here directly from the courts inferior to the Circuit Courts. The greater number of them, however, having been entertained upon the ground that although the Circuit Courts had ample capacity to afford complete relief, yet if the party aggrieved should prefer to resort at once to this tribunal, he had a right to his writ. A doctrine that was first announced in the case Webb & Estell vs. Hanger & Winston, (1 Ark. 122); which case, with those based upon it, we overruled at the last term of this court. Its annunciation, however, seems not to have been made without some hesitancy, as we infer from the accompanying remark of the court that, “ In general, we would deem it more appropriate and regular for the application to be first made to the Circuit Court.” Nor is it remarkable that there should have been hesitancy in view of the observations of the court already quoted, and the further remark, made in the case of The State vs. Ashley et al., (1 Ark. R. 309,) when speaking of the organization, jurisdiction and powers of the several courts of this State, that they were “so ordered, arranged and distributed as to-avoid all conflict of authority between them, and to constitute a regular gradation of power , each having a control and revising authority over such others as are inferior to it, to produce a harmonious action between the several branches of the whole system.”
Can it be true, under such a system as this, that a party is entitled to his remedial writ in the first instance in this court for a grievance in one of these inferior courts ? It is true that this court has the most ample appellate powders, subject to legislative regulations and restrictions touching its exercise; and is also entrusted with a general superintending control over all inferior and other courts of law and equity; and is thus legally competent to afford complete remedy for any such grievance. But the Circuit Court is in general equally competent for such purpose, and will, in the large number of such cases, dispense justice at less expense and with more convenience to the parties and at less delay.
These courts, besides their extensive and undoubted civil and criminal and chancery original jurisdiction, are invested by the legislature with ample intermediate appellate jurisdiction; besides being entrusted under the constitution with a specific superintending control over the county and inferior courts and over justices of the peace in each county of their respective circuits. And being also presided in by learned jurists, elected by the people themselves, are, in their constitution and nature, eminently fitted to accomplish, as to the great mass of the transactions among men, all that it could have been expected that the judiciary should achieve.
The appellate power of this court is to be exercised under such regulations and restrictions a,s shall be, from time to time, prescribed by law. This is the substance of the constitutional provision. The Legislature has prescribed that “an appeal” shall be had from “ any final judgment or decision of any Circuit Court in any civil case,” and that “ writs of error upon any final judgment or decision of any Circuit Court shall issue of course in all eases out of the Supreme Court;” and have made various other regulations touching these proceedings : and, besides these, have made numerous provisions by which appeals may be taken from the several inferior to the Circuit Courts. And by these means secured for all suck cases an ultimate revision by the appellate functions of this court.
Nor are these the only means, numerous and ample as they are, by which the regular appellate power of this court may be invoked for cases arising in these inferior courts. The powers of superintending control entrusted to the Circuit Courts may draw into these courts still additional causes, which, when finally adjudged and decided, will be prepared to come under revision here. Thus almost every conceivable case that can properly arise in any of our courts of original jurisdiction, may be brought up here for regular appellate revision by means of the legislative enactments. It is true that many of such would come up indirectly through an 'intermediate court; but surely no one would contend that it was not competent for the legislature so to provide, or that such were any the less “restrictions or regulations” touching the exercise of the appellate powers of this court.
The “restrictions and regulations” authorized by the constitution, are not such as this court may or may not approve, but are expressly “such as may, from time to time, be prescribed by law.” And it would seem to be going a great way to say, in an ordinary case, and without the most grave and cogent reasons for such a course, that, after the Legislature had, under the express provisions of the constitution, made regulations and restrictions touching the exercise of the appellate powers of this court, that this court would not be governed by them, and would persist in being governed by common law regulations.
We cannot, therefore, but feel inhibited from such a course by what we conceive to be the manifest intention of the framers of the constitution, and by the spirit of that instrument, and by our course of legislation on the subject that has been responsive to both. And we do not think that any other view of our duty can be maintained on any ground of sound construction. Nor can we perceive that the proper exercise of our powers of general super-tending control rests upon any different foundation in principle.
These, as we have elsewhere remarked in substance, place this court with regard to all other courts in this State, in the same po sition in this respect, that the court of King’s Bench, in England, occupies in relation to the courts of that Kingdom, in giving it a superintending authority and control. In giving it the power to overlook and to govern, to stimulate, or to check and restrain all other courts: that the subordinate parts may be combined, and in some sense, consolidated by a concert of co-operation and harmony of action throughout the entire system, to the end that there shall be no failure of justice, either from the non-action, or from the excentric action of any of these courts, or from any accidental incapacity of any of them to administer justice. These are, therefore, to a great extent, undefinable and ultimate judicial powers entrusted to this court for the most grave and weighty purposes.
But although this court is possessed of these powers, for the purposes indicated, the Circuit Courts are also entrusted with like powers by the express provisions of the constitution, and like their intermediate appeallate powers, created by the Legislature in regulating the appellate powers of this court, may be brought to bear upon the operation of the inferior courts, in the large number of cases that can arise, at less expense and with more convenience to the parties and with less delay of justice.
And when this court, by its superintendency and control of the Circuit Courts, as well in reference to its ordinary duties as in reference to its duties of superintending, and control over the inferior courts, drives forward the whole machinery of the judicial system, we cannot perceive that it any the less exercises its proper functions, or in any degree falls short of its high duties, than when it would achieve the same, and by direct action upon the separate and subordinate parts of the system, while at the same time it is manifest to our minds that greater concert of co-operation, harmony of action, and efficiency of administration will be effected.
It is in the light of these views, in reference to what we conceive to be the true and sound construction of the constitution, as to our duties in this connection that we feel a like inhibition resting upon us to exercise these high powers, otherwise than upon tbe Circuit Court, until after application for redress shall have been first made to that court, or its legal incapacity shown.
And besides the authority incident to and included in these two great functions — the one appellate, and the other to superintend and control all other courts, and prevent a failure of justice, we have no other powers, as we have elsewhere said.
In this case, there having been no showing made that any application has been made to the Circuit Court for redress or if its incapacity to act, the motion must be denied. | [
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Mr. Ch. Justice Joiinsos
delivered the opinion of the Court.
If any responsibility has attached to the appellant for his participation in the offence charged jointly against himself and others, it must have arisen from a defect of authority to authorize the original arrest. This being the case, it is, by no means, material whether the warrant of commitment was legal and valid or not. The appellant was not present when the arrest was made, but he was sent for and came in as one of the aids or guards after Cook was taken before the justice, and during the investigation, and consequently before Cook was committed.
This being the state of case, the enquiry necessarily results as to his authority to do the act complained of, anterior to the period of commitment. It is true that the testimony does not expressly show that he was ordered by the constable to act as.a guard over Cook; yet, inasmuch as he had been sent for, and actually took the place of one of the original guards, it is fair to presume that he acted under the authority of the constable, and if so, of course he is entitled, at least, to the same protection. The language of the witness in respect to the character of the authority under which the original arrest was made, is precisely the same as that used in the case of Andrew J. Floyd against the State, decided at the present term; and, consequently, the legal effect must be the same in both cases. It is there laid down that the fact of confinement having been shown by the State, it devolved upon the defendant to make out his j ustification, and that having attempted to justify under a warrant, he must show one valid and legal upon its face. It was there held, under a similar state of fact to the one here developed, that one who procured the pretended warrant to bo issued, had not shown a legal justification since it did not even appear that the one relied upon ran in the name of the State of Arkansas. All then that was said there, in respect to the defect of authority, will apply with equal force here, unless there be a distinction between the situation of an informer, who is first instrumental in putting the law in motion and one who comes in subsequently and aids in its execution. It is contended by the counsel for the appellant, that the law will not hold a party coming in to the aid of an officer to the same strictness of authority as is required of the officer himself. In support of this position, he has submitted a most plausible and forcible argument, in which he has depicted the ruinous consequences which, under peculiar circumstances, the law would visit upon honest and innocent individuals. We are free to admit that the argument is ingenious and plausible, yet we think it will be found that the current of authority is clearly against it. In the case of Elder v Morrison, 10 Wend. 128 the Supreme Court of New York, by Savage, Ch. J., said: “It is certainly true that if the officer be guilty of a trespass, those who act by his command or in his aid, must be trespassers also, unless they are to be excused in consequence of the provision of the Revised Statutes. If a stranger comes in aid of an officer in doing a lawful act, as executing legal process, but the officer, by reason of some subsequent improper act, becomes a trespasser ab initio, the stranger does not thereby become a trespasser. Cro. Eliz. 181. Cro. Car. 446. But when the original act of the officer is unlawful, any stranger who aids him will be a trespasser, though he acts by the officer's command. Oystead v Shed, 12 Mass. R. 511. The case in Massachusetts just cited, was an action of trespass dc bonis asportatis against Shed and three others. Shed and Fletcher, justified as officers, under writs of attachments, the two other defendants justified as servants of Fletcher: the plaintiff replied and the defendants demurred to the replications. The court adjudged Fletcher’s plea bad, and the justification of the other two defendants failed of course; and their ignorance of the law, it was said, would not excuse their conduct or diminish, in any degree, the injury which the plaintiff sustained. The case of Lunard v Stacy, 6 Mod. 140, is to the same effect. That was an action of trespass for entering the plaintiff’s house and taking away his goods. The defendant justified that he came in aid of an officer in execution of a writ of replevin. The plaintiff replied that he claimed property in goods, and gave notice to the defendant before their removal. The court held the defendant was a trespasser ab initio, for though the claim should be made to the sheriff, yet if it be notified to him who comes in aid, that claim is made, he ought to desist at his peril; thereby establishing the proposition that if the officer is a trespasser, all those who act by his command, or in his aid, are trespassers. Whenever a sheriff or constable has power to execute process in a particular manner, his authority is a justification to himself and all who come in his aid; but if his authority is not sufficient to justify him, neither can it justify those who aid him. He has no power to command others to do an unlawfnl act; they are not bound to obey, neither by the common law nor the statute; and if they do not obey, it is at their peril. They are bound to obey when his acts are lawful, otherwise not. The only hardship in the case is, that they are bound to know the law. But that obligation is universal; ignorance is no excuse for any one. The counsel for the plaintiff in error insists that there is a difference between aiding in the original taking and in overcoming resistance. It seems to me there is no such distinction. If the taking was lawful, the resistance was unlawful; but if the taking was unlawful, the resistance
was lawful. If the resistance was lawful, neither the officer, nor those he commands to assist him, can lawfully overcome that resistance. Nor does the fact of the officer being indemnified confer on him any authority which he had not without such indemnity: he may thereby become compelled to do an illegal act in selling the property of strangers to the execution, but he is a trespasser in doing so, as are all others who aid him.” The case referred to was an action of assault and battery brought by Morrison against Elder in the court below. The defendant pleaded the general issue, and gave notice of special matter. On the trial, the following facts appeared: The plaintiff, on the premises of one Milburn, offered for sale, two horses at public auction, in pursuance of a previous notice. Woodward, a constable of Walkill, having in his hands a justice’s execution against Milburn, was present, and, forbade the sale, claiming the horses under the execution and demanding possession of them, which the plaintiff refused to yield. Woodward demanded assistance from the by-standers; no one obeying him, he called upon the defendant, by name, to assist him in obtaining possession of the horses, and threatened him with legal proceedings if he did not obey. Woodward succeeded in obtaining possession of one of the horses, and then he (the plaintiff) and defendant went into the stable where the other horse was, upon which a struggle ensued as to who should have the possession of that horse, in the course of which the defendant jerked the plainliff about, who had hold of the halter, which was upon the horse, elbowed him and threw him down, which was the assault and battery complained of. The defendant, under the notice attached to his plea, proved the rendition of a judgment against Milburn, the issuing of an execution thereon, and a delivery of the writ to Woodward, and that by virtue thereof and of another execution subsequently received, Woodward, who was indemnified by the plaintiff in the execution, sold the horses. At the time of the levy, Woodward inquired of Milburn where his horses were, who pointed out the horses in question. The plaintiff offered to prove that he was the owner of the horses at the time of the taking by Woodward, which evidence was' objected to by the defendant, but the objection was overruled and the evidence received; to which decision the defendant excepted. The jury found a verdict for plaintiff with $25 damages, on which judgment was rendered. The defendant then sued out a writ of error, and the judgment was affirmed in the Supreme Court. The principle there established is, that a party who is called to aid an officer in the execution of civil process, does so at his peril, and that in case he shall invade the rights of strangers, he will be liable as a trespasser. That is a much stronger case than the one at bar, for he is not only bound to know that his principal is acting under lawful authority, but he is also bound to see that such authority is not abused by an invasion of the rights of strangers to the process under which he acts. It is conceded that the phraseology of the statute of New York is somewhat different from that of our own, yet we believe that they are substantially the same, and that consequently they should receive the same construction. The statute of that State bearing upon the subject under consideration is, “that when a sheriff or other public officer shall find resistance, or have reason to apprehend it in the execution of any process delivered to him, he may command every male inhabitant of his county, or as many as he shall think proper, to assist him in overcoming such resistance, and in seizing and confining the resisters,” and that “every person commanded by an officer to assist him, who shall refuse, without lawful cause, shall be deemed guilty of a misdemeanor, and subject to fine and imprisonment.” The language of our statute is that “In all cases whereby the common law or any statute of this State, any officer is authorized to execute any process, he may call to his aid all free white male inhabitants over the age of twenty-one years, of the county ilr which such officer is authorized to act,” and “If any person shall refuse or neglect to obey the summons of any such officer, the person so neglecting or refusing, shall be fined in any sum not less than ten nor more than one hundred dollars, to be recovered by indictment.” In the one case, therefore, the party summoned is bound to obey unless he shall have lawful cause to refuse; and, in the other, he is only required to yield obedience in such cases as the officer is authorized to act, either by the common or statute law. If he is only bound to obey in such cases as the officer is authorized to act, we think it clearly follows that the law will not protect him where the officer has no authority. It certainly would not be contended that an officer of the State 'with a process in his hands against one individual, would be authorized to execute it upon another, neither would he be authorized to seize in execution the property of a stranger to satisfy the debt of the plaintiff in the writ.
It is assumed by the appellant’s counsel, that the parly called upon by an officer is bound to obey, and that having no option whether he will do so or not, he must, of necessity, be protected against any evil consequences which may result from his acts! If the premises were true in point of fact, it might be difficult to resist the conclusion drawn from them. But such is not the case. The law, as laid down in the case just referred to, is that “He has no power to command others to do an unlawful act; they are not bound to obey, neither by the common law nor the statute, and if they do obey, it is at their peril. They are bound to obey when his commands are lawful, otherwise not. The only hardship is, “that they are bound to know the law.” It will be seen, therefore, that a party is not bound, right or wrong, and whether the officer is authorized to do the act or not, to render obedience to his command. It is most clearly his right to refuse in case the officer has no legal authority to do the act, and it is equally clear that he has no such right in case the officer has such authority. He must, therefore, act or decline to act at his peril. If it be a hardship for a person, called by an officer to assist him, to decide at his peril, it is quite as hard that the rights of innocent individuals should be invaded with impunity. The law does not intend that the assistance required shall, in all cases, be rendered blindly and without reflection; for if so, it might be the means of inducing the most flagrant outrages and covering with the mantle of impunity acts of violence precon- certed between an irresponsible officer and other malicious individuals.
If persons are only bound to aid an officer in such cases as he himself would be authorized to act, it is clear that the defendant in this case call'd aim no protection from the law, as nothing has been shown which could by possibility have given protection to the officer.
We are, therefore, fully satisfied, from every view which we have been able to take of this case, that the judgment of the Circuit Court is right, and consequently ought to be affirmed. It is, therefore, considered and adjudged that the judgment of the Circuit Court of Ouachita county, herein rendered, be, and the same is hereby, affirmed. | [
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PAUL E. DANIELSON, Associate Justice
| Appellant Rolandis Larenzo Chatmon appeals the order of the Faulkner County Circuit Court finding him guilty of three counts of aggravated robbery and one count of theft of property. He was sentenced, as a habitual offender with a firearm enhancement, to a total term of three life sentences, plus 360 months’ imprisonment, to be served consecutively. On appeal, he argues that (1) there was insufficient evidence to support his convictions because the State failed to prove that he was the person who committed the crimes; (2) the circuit court erred in allowing the State to introduce into evidence certain recordings of phone conversations; and (3) the circuit court erred in denying his motion for new trial based on a claim of ineffective assistance of counsel. Our jurisdiction of this appeal is pursuant to Arkansas Supreme Court Rule 1 — 2(a)(2) (2014). We affirm.
The record reflects that on the evéning of May 15, 2012, Derek Leidholm, his wife, Morgan, and their neighbor, Jansen McGuire, were in the garage of the Leid-holms’ house, pwhen a man entered the garage, carrying a black semiautomatic pistol, and demanding money. After Jansen handed over a leather wallet, the man exited the garage from the left side, just as he had entered. Both Morgan and Jansen called 911 in separate calls. While they were doing so, Derek peeked around the corner of the garage and saw the man running “down the side ... through the yards.” Derek then saw a dark-color, midsize SUV proceed slowly through a stop sign without stopping, while the man ran beside it. After losing sight of the SUV, Derek remained outside of his garage, and then saw the SUV again, this time moving at a high rate of speed.
After receiving a subject description and vehicle description, officers checked the area. Specifically, police were looking for a tall, thin black male wearing a white shirt, black jeans, and possibly a blue baseball cap and carrying a black semiautomatic pistol. In addition, police sought what was possibly a black SUV. In checking nearby apartment complexes, police discovered a dark-colored SUV parked in a slanted position with a driver and a passenger sitting inside. After approaching the vehicle, police discovered a tall, thin black male, wearing a white shirt and black jeans, who identified himself as Chatmon; Chatmon informed the police that he and his passenger, Rodney Chambers, were about to leave.
At that time, Crystal Brown, Chatmon’s then girlfriend and the owner of the SUV, came outside and subsequently consented to a search of the car. Police searched the vehicle, and a hat and a black semiautomatic pistol were found. Police also searched a nearby trash dumpster and discovered Jansen’s wallet sitting on top of the trash inside the dumpster.
|sOn May 18, 2012, a felony information was filed, charging Chatmon with three counts of aggravated robbery, one count of theft of property, and one count of possession of a firearm by certain persons. Chatmon was tried before a jury on August 8-9, 2013. He was convicted and sentenced, as previously set forth, and now appeals.
For his first point on appeal, Chatmon argues that the circuit court erred in denying his motion for directed, verdict. He contends not that there was insufficient evidence of aggravated robbery and theft of property, but that there was insufficient evidence that he was the person who committed the crimes. Chatmon avers that there is only circumstantial evidence to support his convictions and that it was insufficient to identify him as the assailant. The State responds that substantial evidence exists to show that Chatmon eom- mitted the crimes, including his own admission to a fellow inmate at the county jail.
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. See Wells v. State, 2013 Ark. 389, 430 S.W.3d 65. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. See id. On review, only evidence that supports the verdict is considered, and the evidence is viewed in the light most favorable to the verdict. See id.
|4A person commits aggravated robbery if he or she commits robbery as defined in Arkansas Code Annotated section 5-12-102, and the person (1) is armed with a deadly weapon, (2) represents by word or conduct that he or she is armed with a deadly weapon, or (3) inflicts or attempts to inflict death or serious physical injury upon another person. See Ark. Code Ann. § 5-12-103 (Repl. 2013). A person commits theft of property if, with the purpose of depriving the owner of the property, he knowingly (1) takes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property of another, or (2) obtains the property of another by threat. See Ark. Code Ann. § 5-36-103(a) (Repl. 2013).
Reviewing the evidence in the light most favorable to the State, the proof adduced at trial revealed the following. The Leid-holms and Jansen each testified that a black male, armed with a gun, entered the Leidholms’ garage and demanded money. Derek testified that once Jansen handed over his wallet, the assailant left, and his wife went inside to call 911 and Jansen left to go to his home. After checking on his wife, Derek went back outside to make sure the gunman was not going to return. He stated that he looked out of his garage and saw the robber running through the neighbors’ yards and then noticed an SUV “creep through a stop sign.” Derek described the SUV as a dark-colored, midsize SUV, similar to a Toyota 4-) r,Runner. According to Derek, he saw the SUV again when it drove past his house at approximately sixty miles per hour and failed to stop at a nearby stop sign. Derek described the gunman as African American, close to six feet tall, wearing high-top basketball shoes, dark blue jeans, a white shirt, and a fitted, straight-billed ball cap. He stated that the gun was black or synthetic in color and was a large-caliber handgun, about the size of a .9 millimeter or .45-caliber, semiautomatic handgun. When the State showed Derek the gun that was recovered when police arrested Chatmon, Derek stated that it appeared to be consistent with the gun used in the robbery. Derek also confirmed that a picture of the vehicle in which police found Chatmon shortly after the robbery matched the description of the vehicle he saw in his neighborhood after the robbery. Derek further identified the clothing that was taken from Chatmon after his arrest as the clothing worn by the person who committed the robberies.
Jansen testified that he called 911 after the robbery, and the State introduced the recording of that phone call into évidence. The recording was played for the jury and,' on it, Jansen is heard telling the operator that a man showed up in the garage, with a gun, demanding their money and cell phones, and then ran off, possibly getting into a black Trailblazer. Jansen stated that the gunman was a black male and was wearing a white shirt, black pants, and a baseball cap. Jansen further stated that the assailant’s baseball cap had some type of raised logo and a flat bill. He described the assailant as being about five feet, eleven inches tall and weighing approximately 140-150 pounds. According to Jansen, the assailant’s gun was black, with a long barrel, and was not a revolver. When the State showed him pictures of the baseball hat and the gun recovered when police arrested Chatmon, Jansen | (¡confirmed that they were consistent with the hat worn and the gun used by the assailant. Jansen stated that he gave the man his wallet, which was a brown Fossil wallet, and confirmed that police recovered his wallet and returned it to him the day after the robbery.
Morgan testified as well. She stated that after the robbery she went into her home to call 911. The State introduced into evidence the recording of her call to 911 and published it to the jury. During this call, Morgan described the assailant as a black male, wearing a T-shirt, jeans, and a bandana over his face and carrying a black handgun. Morgan also testified at trial that the assailant was wearing a flat-billed hat and some type of high-top tennis shoes.
Officer Matt Edgmon, with the Conway Police Department, testified that he was on patrol the evening of May 15, 2012, when he received notice of a reported armed robbery nearby. After receiving a description of the suspect and a vehicle possibly connected to the crime, - Officer Edgmon began searching the area for that vehicle. The suspect was described to the officer as a tall, thin black male, wearing a white shirt and black jeans and possibly a blue ball cap. Dispatch also reported that the suspect was armed with a black semiautomatic pistol, and the suspect vehicle was described as “a possibly black in color SUV.” Officer Edgmon began searching nearby apartment complexes, including the Stoneridge Apartments, when he noticed a dark-colored SUV that was parked in two slots and appeared to have been hastily parked. As he drove by, the officer noticed someone in the driver’s seat, so he got out to speak with the person in the vehicle. As the officer approached the vehicle, the person on the driver’s side of the vehicle began to exit. The officer noticed that he was a tall, thin black male, wearing a white shirt and black jeans and also noticed that there was a passenger in the |7vehicle. The driver, who stated he was a resident at the apartments, identified himself as Rolandis Chatmon and the passenger identified himself as Rodney Chambers. According to Officer Edgmon, as he was talking to Chatmon, Chatmon grew increasingly nervous and repeatedly stated that he and Chambers were about to leave. Chatmon told Officer Edgmon that he and Chambers had been down at another apartment but had not been driving the ear, which was inconsistent with the fact that the SUV’s hood was warm to the touch, indicating it had recently been driven. Officer Edgmon subsequently learned that the SUV belonged to Crystal Brown, Chatmon’s then girlfriend, who had come from one of the apartments while the officer was talking to the men. Brown gave the officer, along with Officer Travis Caldwell who also reported to the scene, permission to search the vehicle. While Officer Edgmon was talking to Brown, Chatmon was yelling at her not to allow the officers to search the vehicle. Inside the vehicle’s console was a black semiautomatic pistol and in the back of the vehicle was a hat. And, in a nearby trash dumpster, police located a brown leather Fossil wallet sitting atop the trash inside the dumpster. Officers Edgmon and Caldwell testified that the SUV, a Ford Explorer, appeared to be black under the lights but was actually dark green in color.
Brown testified that Chatmon was living with her at the time of the robbery, and that on that particular evening he left their apartment in her Ford Explorer around 7:00 p.m. and returned shortly after 11:00 p.m. Brown thought she remembered Chatmon wearing a white T-shirt and hat that evening. According to Brown, she saw Chatmon return, get out of the passenger side of the vehicle, walk toward where the dumpster was located, and then return |sto the car and get in the driver’s side. Brown stated that she gave officers permission to search her vehicle, which upset Chatmon.
Detective David Short with the Conway Police Department testified that he investigated this case. He stated that he had spoken with both Brown and Chatmon and was able to recognize their voices and, in the course of the investigation had reviewed some recordings of phone calls made by Chatmon, while in jail, to Brown. These calls were then played for the jury. During one of the calls, Chatmon admitted that he had the gun in Brown’s vehicle and had also kept it in her apartment at times. In another call, Chatmon was angry with Brown for allowing police to search her car. And, in yet another call, Chatmon admitted that on the night of the robbery he did not know why he did not get out of the car and go into the apartment as soon as he parked.
Finally, Monette Solomon testified that he met Chatmon while they were incarcerated together and that Chatmon told him he was in jail because he “had hit a lick.” Solomon explained that was street slang for committing a robbery or burglary. Solomon also testified that Chatmon told him he used a .40-caliber handgun during that robbery and that Rodney Chambers had driven the vehicle that Chatmon got into after the robbery. According to Solomon, Chatmon believed he would not be convicted for the crimes because the victims had described the gun as a .45-caliber weapon, when it was actually a .40-caliber handgun.
In advancing his argument that there was insufficient evidence to support his convictions, Chatmon ’ points to some inconsistencies in statements made by the three victims and also asserts that the information they provided to police to describe the assailant was |flnothing more than generalities. According to Chatmon, the State failed to present any direct evidence of his guilt and, instead, relied solely on circumstantial evidence to convict him. And, according to him, this circumstantial evidence caused the jury to resort to speculation and conjecture in convicting him. This argument is simply unavailing.
Circumstantial evidence is evidence of circumstances from which a fact may be inferred. Jackson v. State, 363 Ark. 311, 214 S.W.3d 232 (2005). Direct evidence is evidence that proves a fact without resort to inference, when for example, it is proved by witnesses who testify to what they saw, heard, or experienced. Id. Here, Chatmon ignores crucial evidence introduced by the State through witness Monette Solomon that Chatmon confessed to committing the robbery and to using a .40-caliber pistol to do so. This was- direct evidence linking him to the crimes. See, e.g., Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996) (stating that witness testimony that a defendant admitted to committing the murders was direct evidence of guilt). And, even though Chatmon attempts to discount this testimony by pointing to the fact that Solomon was a felon with pending charges, it is within the discretion of the jury to believe or disbelieve any witness. Ellis v. State, 2012 Ark. 65, 386 S.W.3d 485. Clearly, the jury found Solomon’s testimony to be credible.
Moreover, in addition to this direct evidence, the State introduced ample circumstantial evidence, as set forth above, that tied Chatmon to the crime. Simply because the majority of the evidence was circumstantial does not mean that there was insufficient evidence supporting the convictions. Evidence of guilt is not less because it is circumstantial. Jackson, 363 Ark. 311, 214 S.W.3d 232. Where the evidence is substantial, it is the jury’s duty |into decide whether the circumstantial evidence offered to prove guilt excludes every other reasonable hypothesis consistent with innocence. Sales v. State, 374 Ark. 222, 289 S.W.3d 423 (2008). In light of the foregoing evidence, we reject Chatmon’s claim that there was insufficient evidence supporting his convictions and affirm on this point.
Chatmon next argues that the circuit court erred in admitting certain audio recordings of Chatmon talking with Brown and because of such error he is entitled to a new trial. More specifically, Chatmon argues that the State’s introduction of the recordings through Detective Short did not satisfy the authentication requirement of Arkansas Rule of Evidence 901. The State counters -that the circuit court did not abuse its discretion in admitting the recordings. Alternatively, the State argues that even if there was any error in the admission of the recordings, there was no prejudice and, thus, any error was harmless.
The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse that decision absent a manifest abuse of discretion. E.g., Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. The abuse-of-discretion standard is a high threshold that does not simply require error in the circuit court’s decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. E.g., Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004). In addition, we will not reverse a ruling on the admission of evidence absent a showing of prejudice. E.g., Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002).
Rule 901 of the Arkansas Rules of Evidence sets out the foundation that must be laid prior to voice-identification testimony and provides as follows:
In Requirement of authentication or identification.
(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
Ark. R. Evid. 901(a), (b)(5) (2014). Authentication requirements are satisfied if the trial court, in its discretion, concludes that the evidence presented is genuine and, in reasonable probability, has not been tampered with or altered in any significant manner. Davis, 350 Ark. 22, 86 S.W.3d 872; Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001).
This court has previously addressed a similar argument that an insufficient foundation had been laid prior to the introduction of a recording. In Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980), this court held that a proper foundation had been laid for the introduction of a recording of a conversation between a defendant and an informant where an officer testified that he had listened to the conversation electronically, reviewed the tapes and transcript, and stated that the recording accurately reflected the conversation. Indeed, Chatmon concedes that an officer’s testimony that he recognized a defendant’s voice on a recording was sufficient for purposes of authentication, citing to this court’s decision in Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000). But, Chatmon asserts that Detective Short’s testimony does not comply with the requirements of Rule 901 because “it falls short 112of the knowledge necessary to authenticate the purported recording.” This argument is simply without merit.
Here, Detective Short testified that he had spoken with both Chatmon and Brown, that he was familiar with their voices, and that he would recognize their voices on a phone call or other recording. He also stated that, based on his prior contact with both of them, he believed he would be able to identify their voices. Detective Short specifically stated that he had interviewed Chatmon for over an hour and had spoken to him another time subsequent to that interview and had spoken to Brown on several occasions. Detective Short then testified that the voices on the recorded phone calls were those of Chat-mon and Brown. In light of the detective’s testimony, and considering the high threshold of review related to the admission of evidence, we cannot say that the circuit court abused its discretion in admitting the recorded phone calls between Chatmon and Brown. We therefore affirm on this point.
As his final point on appeal, Chatmon argues that the circuit court erred in denying his pro se motion for a new trial because his attorney provided ineffective assistance of counsel during his trial. According to Chatmon, his counsel waived his right to speedy trial, without his knowledge, understanding, or consent. Moreover, Chatmon asserts that his counsel failed to adequately.cross-examine the witnesses so as to identify inconsistencies in their testimony.
The State argues to the contrary that all of Chatmon’s claims for a new trial were deemed denied on September 13, 2013, and, thus, because his motion was deemed denied before entry of a written order, this court is precluded from reviewing either of Chatmon’s assertions of ineffective assistance of counsel'. Alternatively, the State asserts that this court is | iaprecluded from reviewing the ineffectiveness claim related to the waiver of his right to speedy trial because it was not raised until the hearing on his motion for a new trial and because the circuit court did not provide written findings of fact or a ruling on this issue. The State als,o argues that there is no merit to the argument as it relates to the cross-examination of witnesses because the allegations in Chatmon’s motion for new trial were merely conelusory and cannot support a claim for ineffective assistance of counsel.
Arkansas Rule of Criminal Procedure 33.3 governs posttrial motions and, pursuant to subsection (b), requires that the filing of a motion, such as this one for a new trial, must be filed within thirty days after entry of judgment. Ark. R. Crim. P. 33.3(b) (2014). If the circuit court neither grants nor denies a posttrial motion within thirty days after the date the motion is filed, it shall be deemed denied as of the thirtieth day. Ark. R. Crim. P. 33.3(c). This court has made clear that a defendant may assert a claim based on ineffective assistance of counsel in a posttrial motion. And, in order for a defendant to argue ineffective assistance of counsel on direct appeal, he must first have presented the claim to the lower court either during the trial or in a motion for new trial. E.g., Rounsaville v. State, 374 Ark. 356, 288 S.W.3d 213 (2008) (holding that a claim of ineffective assistance of counsel is appropriate on direct appeal only when it is raised before the trial court and the facts and circumstances surrounding the claim have been fully developed at the trial level). This court has also explained that a deemed-denied ruling on a posttrial motion for new trial is an insufficient order from which to raise on direct appeal a claim of ineffectiveness because such a ruling necessarily precludes any consideration by the trial court of the relevant facts pertaining to the 114claim. E.g., Maxwell v. State, 359 Ark. 335, 197 S.W.3d 442 (2004); Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996); see also Chavis v. State, 328 Ark. 251, 942 S.W.2d 853 (1997).
Here, Chatmon’s sentencing order was entered on August 14, 2013. Chatmon filed a pro se motion for new trial on August 13, 2013, arguing that his attorney failed to properly cross-examine witnesses. The circuit court held a hearing on the new-trial motion on September 10, 2013, and in that hearing, Chatmon mentioned that he believed counsel had improperly waived his right to a speedy trial. The circuit court entered a written order denying the new-trial motion on October 2, 2013, but pursuant to Rule 33.3(c), Chat-mon’s motion was actually deemed denied on September 12, 2013, the thirtieth day after the filing of his new-trial motion. Nevertheless, in its written order, the circuit court found that there was no merit to Chatmon’s claim that his trial counsel failed to properly cross-examine witnesses but made no mention of Chatmon’s oral argument that counsel improperly waived his right to speedy trial.
We agree with the State that this court is precluded from addressing either of Chatmon’s ineffective-assistance claims because this court has clearly stated that a deemed-denied ruling is an insufficient order from which to raise ineffective assistance of counsel on direct appeal. See Maxwell, 359 Ark. 335, 197 S.W.3d 442. Here, although the circuit court entered a written order denying Chatmon’s motion, it was not entered until after the motion had already been deemed denied pursuant to Rule 33.3. Accordingly, we affirm on this point.
11fiPursuant to Arkansas Supreme Court Rule 4 — 3(i) (2014), the record has been reviewed for all objections, motions, and requests that were decided adversely to Chatmon, and no prejudicial error has been found.
Affirmed.
. The possession count was severed on Chat-mon’s motion.
. Arkansas Code Annotated section 5-12-102 provides that a person commits robbery if, . with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person. See Ark. Code Ann. § 5-12-102(a) (Repl. 2013). | [
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Per Curiam.
Randolph McDonald, by attorney Laura Cunningham, has filed a motion for rule on the clerk. The clerk refused to file McDonald’s appeal because the notice of appeal was untimely. McDonald seeks an order that the clerk be instructed to file the appeal because the clerk erred in misapprehending the facts or misinterpreting the law. We deny the motion.
McDonald states that he is proceeding under Ark. R. Crim. P. 24.3(b), which permits entry of a conditional plea of guilty and appeal from the judgment to obtain appellate review of an adverse determination on a pretrial motion to suppress evidence. Ark. R. Crim. P. 24.3(b) (2003). A Plea Agreement and Order including the conditional plea was entered April 14, 2003; however, McDonald has not appealed from the April 14, 2003, judgment as provided under Ark. R. Crim. P. 24.3(b). Instead, McDonald attempts to appeal from a November 4, 2002, order denying his motion to suppress. McDonald erred in failing to file a notice of appeal from the June 4, 2003, judgment.
This court will grant a motion for rule on the clerk, which we will treat as a motion for a belated appeal, when the attorney admits that the failure to file a timely notice of appeal was due to an error on her part. See, e.g., Slack v. State, 338 Ark. 643, 999 S.W.2d 668 (1999). Here, the attorney does not admit fault. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied. The appellant’s attorney shall file within thirty days from the date of this per curiam opinion a motion and affidavit showing good reason as required under Ark. R. App. P. — Crim. 2(e), and accepting full responsibility for not timely filing the notice of appeal. Upon filing, the motion will be granted.
Motion denied.
Thornton, J., not participating. | [
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Robert L. Brown, Justice.
Appellant Daniel Raymond appeals from a conviction for the obstruction of shooting, hunting, fishing, or trapping activities in violation of Arkansas Code Ann. § 5-71-228 (Repl. 1997), a misdemeanor. Raymond was sentenced to thirty days’ confinement, which was suspended; a five-hundred-dollar fine, which was suspended; and one hundred and fifty dollars in court costs. He raises two points on appeal: (1) that the circuit court erred in finding § 5-71-228 to be constitutional under the United States Constitution; and (2) that the circuit court erred in finding that he violated § 5-71-228. The State argues that both of Raymond’s arguments are procedurally barred for failure to develop the issues raised on appeal before the circuit court. We agree with the State and affirm the circuit court.
On April 4, 2002, Raymond was convicted in the Elkins District Court of obstruction of shooting, hunting, fishing, or trapping activities in violation § 5-71-228. He appealed the matter to the Washington County Circuit Court. On August 7, 2002, he filed a motion to dismiss the State’s charge due to the unconstitu tionality of § 5-71-228. In his motion, he asserted that the statute violated both his federal and state right to free speech under the respective constitutions.
On August 21, 2002, Raymond was tried before the circuit court. Testimony presented to the court revealed that on the first day of deer season, November 10,' 2001, Markus Lee Surber was hunting on .Steve Wilson’s property. Surber testified that around daylight, Raymond came onto Wilson’s property within twenty yards of the deer stand in which Surber was positioned. Raymond was riding a four-wheeler and blowing a whistle. Surber testified that Raymond did this every thirty minutes. On the second or third day of the season, Surber also testified that he heard loud music coming across the property from the same direction Raymond had traveled earlier that week. Later the same day, Surber heard and saw Raymond fire three shots from a gun on Wilson’s property. Surber testified that this was the first time in ten years that his group had not killed a deer on the first day of deer season on Wilson’s property.
Alan Scott Wilson, Jr., also testified for the State. He stated that on the first day of deer season, while positioned in the northeast corner of Steve Wilson’s property, he heard nine shots fired from the direction of Raymond’s pasture which was located behind him. Forty-five minutes later, Wilson heard a four-wheeler approach and saw a person on the four-wheeler blowing a whistle. Later, while walking, Wilson encountered Raymond and realized that the person he had seen earlier was Raymond. Even later that day, Wilson testified that he heard Raymond fire “a couple of shots” at Surber and him, while Raymond was on his four-wheeler. Wilson also testified that he did not kill a deer on that first day of the season.
Steve Wilson testified for the State. He stated that he had lived on his property in West Fork for twenty years. He testified that on November 11, 2001, he heard Raymond again riding his four-wheeler on Raymond’s own property and firing a pistol. Steve Hall confirmed that while walking towards his father-in-law’s house, he saw Raymond, on Raymond’s own property, riding his four-wheeler and blowing a whistle.
Sergeant Scott Young of the Washington County Sheriffs Office testified that he spoke with Raymond on November 12, 2001, and advised him of the law prohibiting persons from harassing hunters. Sergeant Young stated that Raymond admitted blowing a whistle and that he “admitted to riding his four wheeler around in order to scare game away so they wouldn’t be out there hunting.” Sergeant Young added that Raymond did not believe his actions were illegal and planned on continuing his actions every day of deer season in order to protect his livestock, which was in danger of being harmed by the hunters.
Raymond took the stand in his own defense. He described his property as surrounding Steve Wilson’s land on three sides. He stated that on November 10, 2001, he was patrolling his land on a four-wheeler to keep people from trespassing on his land. He stated that he used a four-wheeler to do that because he has a metal knee. He further testified that he never crossed onto Steve Wilson’s property. He admitted to blowing a whistle and firing shots from a .22 calibre pistol to protect his livestock as well as the children, his mother, his wife, and himself, living on his property. He added that he wanted to let hunters know that he was there, so he would not be shot.
At the close of all the evidence and following closing arguments, the circuit court found that § 5-71-228 was constitutional. The court further found that Raymond was guilty of violating the provisions of the statute.
I. Sufficiency of the Evidence
Raymond argues that the circuit court incorrectly determined that he violated § 5-71-228 because there was insufficient evidence to establish his guilt. Due to double jeopardy considerations, we consider the insufficiency issue first. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). He contends that (1) he never left his own property, and (2) his activities that day were-not intended to “obstruct or impede” the hunters. Thus, he claims, the State failed to establish the element of wilfulness. We hold that the issue is not preserved for our review. ■
Arkansas Rule of Criminal Procedure 33.1 provides, in pertinent part:
(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution’s evidence, then the motion must be renewed at the close of all the evidence.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.
Ark. R. Crim. P. 33.1 (2003).
This court recently interpreted Rule 33.1 in the context of a bench trial in State v. Holmes, 347 Ark. 689, 66 S.W.3d 640 (2002). In Holmes, the appellant moved for a directed verdict following the close of the State’s case during his bench trial but failed to renew the motion at the close of all the evidence. The trial court convicted Holmes on two of the three charges but later set aside his convictions. The State appealed, arguing that the trial court erred in granting Holmes’s motion to set aside the verdicts as he had waived any question pertaining to sufficiency of the evidence by failing to make the appropriate motion at the close of all the evidence. We agreed and said:
In the present case, Holmes’s motion for directed verdict was not made at the close of all the evidence. Rather, it was included during Mr. Kearney’s closing argument, as quoted above. Under Etoch, supra, we adhere to a strict interpretation of our rules, and we hold that Holmes did not- comply with Ark. R. Crim. P. 33.1(b) and (c). In order to preserve the question of the sufficiency of the evidence, Holmes should have made his motion for directed verdict at the close of all the evidence before closing arguments. Because of his failure to do so, we hold that the trial court erred in considering his motion to set aside the verdict for insufficient evidence, and we reverse and remand with instructions to reinstate Holmes’s convictions and sentence.
347 Ark. at 693, 66 S.W.3d at 643.
In the instant case, Raymond failed to move to dismiss the State’s case based on insufficient evidence at the close of all the •evidence, as required by Ark. R. Crim. P. 33.1. In order to preserve the question of sufficiency of the evidence, Raymond was required to move to dismiss prior to closing arguments. Because he failed to do so, this court is precluded from reviewing his sufficiency claim.
II. Constitutional Issues
Raymond next contends that § 5-71-228 is unconstitutional due to its vagueness and overbreadth. We begin by quoting § 5-71-228(a):
(a) It is unlawful for any person to willfully obstruct or impede the participation of any individual in the lawful activity of shooting, hunting, fishing, or trapping in this state. Provided, that nothing in this section shall prohibit a landowner or lessee from exercising his or her lawful right to prohibit hunting, fishing, or trapping on his or her land, or from exercising any other legal right.
Ark. Code Ann. § 5-71-228(a) (Repl. 1997).
This court must first consider whether the issues raised on appeal were preserved for our review, because the State has specifically raised that issue. It is well settled that an appellant must raise and make an argument at trial in order to preserve it on appeal. See, e.g., Halford v. State, 342 Ark. 80, 27 S.W.3d 346 (2000). This is true even when the issue raised is constitutional in nature. See Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002). If a particular theory was not presented at trial, the theory will not be reached on appeal. See Ouachita Wilderness Inst., Inc. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997). Moreover, an appellant must obtain a ruling on his or her argument to preserve the matter for this court. See Rutledge v. State, 345 Ark. 243, 45 S.W.3d 825 (2001). The burden of providing a record sufficient to demonstrate error is upon the appellant. See McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997).
In the instant case, prior to the bench trial, Raymond filed a motion to dismiss based on the unconstitutionality of § 5-71-228. In that motion, he wrote in pertinent part:
2. That [§ 5-71-228] violates the Arkansas Constitution and the United States Constitution.
3. That the Arkansas Constitution provides, in pertinent part, as follows:
The liberty of the press shall forever remain inviolate, with free communication of any thoughts and opinions be as one of the invaluable rights of man; and any persons may freely write and publish their sentiments on all subjects, be responsible for abuse of such rights...
4. That the Constitution of the United States provides, in pertinent part, as follows:
Congress shall make no laws respecting the establishment of religion, or prohibiting the free exercise thereof; or bridging the freedom of speech,...
5. That the criminal statute under which the Defendant is charged violates his federal constitutional right to free speech and his state constitutional right to free speech.
6. That the Defendant hereby notifies the Honorable Mark Pryor, Attorney General for the State of Arkansas, of this motion.
At the ensuing bench trial, Raymond’s counsel made the following argument before the circuit court:
. . . The statute makes it clear that he has the right to not only prevent hunting on his property but also from exercising his other legal rights. The State’s not shown anything he’s done if done on his property is something that’s illegal. That it’s something that’s wrong. That’s why I think the statute fails for constitutional reasons, Your Honor, and that’s the purpose for filing the motion to dismiss. This statute and the State’s argument seems to assume that hunting in this state is a right, like a driver’s license is a right, but as this Court is well aware, our supreme court has said no, driving in this state is not a right, it’s a privilege, it’s a privilege that’s granted by the state. When the Court weighs a privilege versus a constitutional right, the scales have to tip in favor of the constitutional right. And for that reason, Your Honor, and the testimony, we would ask that you dismiss the case against Mr. Raymond.
Neither Raymond’s motion to dismiss nor the argument of his counsel to the circuit court makes reference to the void-for-vagueness or overbreadth argument. Nevertheless, the circuit court made the following ruling from the bench:
I think that probably it’s appropriate to address the constitutional issues raise (sic) by the Defendant first. As I understand the Defendant’s motion to dismiss and arguments here today, basically the statute as applied to the Defendant’s conduct basically would violate his first amendment free speech rights. Of course, as the attorneys are aware, legislative enactments in this state are presumed to be constitutional and it’s incumbent upon the parties alleging an enactment is unconstitutional to prove that the statute is unconstitutional. The statutes are attacked in a number of ways but when these issues are presented as I understand the law four questions should be addressed and first, is the statute unconstitutionally vague. In my judgement in this case it is not. A person of average intellectual capacity would I think conclude, easily conclude, that engaging in this type of activity which has been described here today would impede hunting. Secondly, is it, the statute overbroad. Again, in the situation we have before the Court I think the requirement of the statute that the conduct described in this statute to be a violation must be willful addresses the issue of whether or not the statute itself is overbroad, overly broad, and I think it is not. The third consideration is whether the statute is content neutral. Well, I think the statute applies equally to those who love hunting as well as those who loath hunting, and as a consequence in my judgment the statute is not, the statute is content neutral. Finally, the form (sic) in which the conduct or alleged conduct takes place is of some significance in addressing the constitutionality of the statute of this nature. Clearly, hunting activities do not take place in public forums, hunting obviously takes place out in the country, out in the woods, in nature. And thus in my judgment does not restrict public activity as such. I think it’s important to note that the state clearly has a legitimate interest in prohibiting the prescribed conduct inasmuch as clearly a legitimate interest would be safety as well (sic) promoting tourism and other interests of the state so in my judgment the statute passes constitutional muster and is in fact constitutional.
This court has previously held that a general objection by a party who cites to constitutional provisions was not sufficient to preserve constitutional questions presented on appeal. See Harris v. State, 320 Ark. 677, 899 S.W.2d 459 (1995). In Harris, appellant argued on appeal that the statutory bifurcated trial process was unconstitutional. This court observed that at trial, Harris made a general objection:
And, if the Court please, it is further respectfully submitted that such statute is unconstitutional and in violation of the Arkansas and Federal Constitutions, particularly, Amendments Five, Six, and Fourteen to the United States Constitution, and similar provisions of the Arkansas Constitution, in that they do not permit the defendant’s jury trial as contemplated by the constitutional provisions.
320 Ark. at 685, 899 S.W.2d at 464. We concluded that we could not consider this argument on appeal due to the lack of adequate preservation and said:
As readily discerned from his objection, Harris failed to preserve at trial the specific constitutional questions he now seeks to advance in this appeal. This court does not consider arguments which are not supported by compelling argument or citations of law. Kiefer v. State, 297 Ark. 464, 762 S.W.2d 800 (1989). We do point out, however, that this court recently fully addressed and rejected the ex post facto argument in Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994).
Id., 899 S.W.2d at 464.
Similarly, in Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1995), this court reviewed the appellant’s conviction for underage driving while intoxicated. The appellant argued that one section of the underage DUI statute, which mandated public service work, was unconstitutional. The city attorney conceded before the trial court that it was probably unconstitutional but also contended that it could be severed from the rest of Act 863 of 1993, now codified at Ark. Code Ann. §§ 5-65-301 — 5-65-311. After finding the appellant guilty of underage DUI, the circuit court “declared the public service section to be unconstitutional, though no evidence or argument was presented on this issue, but found the balance of Act 863 to be constitutional.” 320 Ark. at 387, 897 S.W.2d at 554. On appeal, the appellant argued that the public service section of the Act was unconstitutional and that such a defect vitiated the Act in its entirety. Regarding the constitutionality, this court said:
We expressly do not consider the constitutionality of the public service penalty — § 5-65-306 — in this appeal.The State Attorney General pointedly refused to concede that the section is unconstitutional in its brief on appeal. Furthermore, we will not strike down a legislative act on constitutional grounds without first having the benefit of a fully developed adversary case. Full development is lacking in this case, and we take no position on the constitutional question.
Id. at 389, 897 S.W.2d at 555.
This court held to the same effect in National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996). In Quirk, the issue was medical malpractice, and the infant’s guardians asserted that Ark. Code Ann. § 16-114-207(3) (1987), apart of the Arkansas Medical Malpractice Act, was unconstitutional. The section in question provided that “no medical care provider shall be required to give expert testimony at trial against himself or herself.” 323 Ark. at 780, 918 S.W.2d at 144. In our opinion, this court proceeded to set forth each of the arguments on the point which were raised before the trial court. Those arguments consisted of: (1) a brief address by counsel to the trial court during a hearing stating that the statute was unconstitutional and requesting the opportunity to make an argument and prepare a brief if the court was going to rule against the motion; (2) a third amended complaint in which the guardians claimed the section of the Medical Malpractice Act violated equal protection, denied prompt access to the courts, constituted special legislation, violated privileges and immunities, attempted to limit recoveries, and violated the supersession rule; (3) a statement in a response to Quirk’s motion-in-limine that the “so-called Medical Malpractice Act is unconstitutional;” (4) a statement during a pretrial hearing restating that the statute is unconstitutional; and (5) the proffer of an order from another case finding the statute was unconstitutional during a hearing on the motion for a new trial. This court noted that the trial court had said, “I’ll hold that it is constitutional.” Id. at 781, 918 S.W.2d at 145. We further observed that “[t]here [was] no other indication in the abstract that the guardians presented any further argument or brief to the trial court.” Id., 918 S.W.2d at 145.
We declined to address the merits of the guardians’ constitutionality claim and said:
We first note that this constitutional issue was not properly briefed and argued to the trial court. See Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987). This Court will not strike down a legislative act on constitutional grounds without first having the benefit of a fully developed adversary case. Drummond v. State, 320 Ark. 305, 897 S.W.2d 553 (1995); see also Whitney v. Holland Retirement Ctr., Inc., 323 Ark. 16, 912 S.W.2d 427 (1996). At trial, they merely made conclusory statements that the statute was unconstitutional. This argument is therefore procedurally barred.
Id., at 782, 918 S.W.2d at 145.
We view the situation in the present case to be analogous to the cases adduced above. In his motion to dismiss, Raymond summarily stated that § 5-71-228 violated his First Amendment rights to free speech under both the federal and state constitutions. No citation to authority was provided, other than simply a quotation of clauses from both constitutions. Nor was any brief filed in support. Additionally, when prompted by the court for argument on the motion during closing arguments, counsel for Raymond merely stated that what Raymond did was not illegal and that where a constitutional right and privilege were in competition, the constitutional right takes priority. Not only did Raymond fail to cite any authority to the circuit court, but he failed to mention the terms “overbroad” or “void for vagueness.” Hence, there was no development of his claims relating to vagueness and overbreadth before the circuit court.
This court is well aware of the fact that despite these lapses on the part of Raymond’s counsel, the circuit court did rule on the issues of vagueness and overbreadth. The problem, however, is that the circuit court did not have the benefit of development of the law on these two pivotal issues. What Raymond now presents to this court on appeal, in the form of legal briefs, is a far cry from what the circuit court had at its disposal. Indeed, as has already been referenced, Raymond never mentioned vagueness or over-breadth, much less developed an argument on either, to the circuit court, and the State was equally reticent on these legal points.
We will not address an issue that is fully developed for the first time on appeal. Accordingly, we affirm the circuit court because the constitutional issues raised on appeal were not preserved for our review.
Affirmed.
Thornton, J., not participating.
This court amended Rule 33.1 to refer to motions to dismiss rather than motions for directed verdicts in connection with bench trials by per curiam order dated April 8,1999. See In Re: Rule 33.1, Rules of Criminal Procedure, 337 Ark. Appx. 621 (1999). | [
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Tom Glaze, Justice.
In this legal malpractice lawsuit, appellants Southern Farm Bureau Casualty Insur-ance Company and Farm Bureau Mutual Insurance Company of Arkansas (“Farm Bureau”) sued appellee, attorney Jesse Daggett, in Pulaski County Circuit Court, alleging that Daggett failed to perfect an appeal in an earlier Phillips County negligence lawsuit brought by Alfred Gammon against his employers, James H. Knight, Vaughn Knight, and M. H. Knight Farms, Inc. (hereinafter “the Knights” or “Knight Farms”). Daggett represented the Knights, and Gammon obtained an $800,000 jury verdict against the Knights. The Knights had filed a timely notice of appeal from the Phillips County judgment, but Daggett later failed to lodge the record in the appeal, causing the appellate court to dismiss the Knights’ appeal. This dismissal required the Knights’ insurance carrier, Farm Bureau, to pay Gammon’s Phillips County judgment. Farm Bureau subsequently filed this legal malpractice suit against Daggett in Pulaski County, alleging that Daggett’s failure to perfect the Knights’ appeal of Gammon’s $800,000 judgment was the result of Daggett’s negligence. Farm Bureau also alleged Daggett breached his contract with Farm Bureau because Farm Bureau had hired Daggett to render services to Farm Bureau, including the timely filing of the transcript with the appellate court.
Daggett moved for a summary judgment, contending that the only issue in Farm Bureau’s malpractice suit against Daggett was a purely legal question — whether a properly perfected appeal of the judgment in Gammon’s favor would have resulted in the reversal of that judgment. Farm Bureau responded, arguing that Daggett had admitted to being negligent in failing to perfect the Knights’ appeal, and Farm Bureau had demonstrated that Daggett’s malpractice was the proximate cause of Farm Bureau’s damages, resulting in its having to satisfy Gammon’s judgment. Farm Bureau also filed its summary judgment motion, asserting Daggett had not addressed Farm Bureau’s allegations of breach of contract, and it asked the Pulaski County Circuit Judge, John Ward, to find Daggett had breached his contract with the Farm Bureau when he failed to timely lodge the Knights’ appeal. Judge Ward granted Daggett’s motion for summary judgment, concluding that, in a legal malpractice case, he must resolve the issue as one of law by deciding how the appellate court would have held if Daggett had properly docketed the Knights’ appeal. Judge Ward ruled that the court of appeals would have affirmed Gammon’s judgment against the Knights on appeal; thus, as a matter of law, Daggett’s failure to docket the record on appeal was not the proximate cause of damages allegedly sustained by Farm Bureau. The judge further denied Farm Bureau’s request for summary judgment on its breach of contract claim against Daggett. Judge Ward ruled that proof of damages was an essential element of a breach of contract claim, and Farm Bureau could not show it sustained damages as a result of Daggett’s breach. The judge dismissed Farm Bureau’s complaint with prejudice, and Farm Bureau brings this appeal.
For its first point on appeal, Farm Bureau suggests that the Pulaski County Circuit Court applied the wrong standard when considering Daggett’s motion for summary judgment. Specifically, Farm Bureau takes issue with the court’s reliance on Sturgis v. Skokos, 335 Ark. 41, 997 S.W.2d 217 (1998), and argues that the trial court should have applied traditional summary-judgment standards, such as the standard found in Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998) (a party is entitled to summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to summary judgment as a matter of law).
In the Skokos case, however, this court was presented with a case procedurally similar to the one now before us. Skokos was a legal malpractice action where it was alleged that an attorney was negligent for failing to file an appeal, and the matter was decided by the trial court on summary judgment. This court agreed with the trial court’s approach, holding that the matter of proximate cause for failure to file an appeal is a question of law to be determined by a judge, not a jury. Skokos, 335 Ark. at 51. Further, the Skokos court quoted the Washington Supreme Court’s statement that “the determination of what decision would have followed if the attorney had timely filed the [appeal] is a question of law for the judge, irrespective of whether the facts are undisputed.” Id. (citing Daugert v. Pappas, 704 P.2d 600 (Wash. 1985)). See also Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996); Tyson Foods, Inc. v. Adams, 326 Ark. 300, 930 S.W.2d 374 (1996); Restatement (Third) of the Law Governing Lawyers § 53, Reporter’s Note (2000).
Here, the Pulaski County court granted Daggett’s motion for summary judgment once it determined that Daggett’s negligence'in failing to timely tender the appellate record was not the proximate cause of Farm Bureau’s damages. Stated another way, the court found that, even if Daggett had properly and timely filed the record, Knight Farms would still have lost on appeal. Under the cases cited above, the trial court was entirely correct to dispose of this matter through the vehicle of summary judgment. However, as will be discussed below, the trial court erred in granting Daggett’s motion for summary judgment.
Before leaving this point, we note that Farm Bureau argues that the Pulaski County court failed to enter specific findings of fact in response to Farm Bureau’s request and this case should be remanded so the trial court can do so. Farm Bureau asserts that Ark. R. Civ. P. 52(a) requires the court to find the facts specifically, if requested by a party. However, other than its reference to Rule 52, Farm Bureau cites no authority in support of its argument. We have held that we will not consider a point raised on appeal where the appellant fails to cite authority or any convincing argument supporting the point. See Southeast Arkansas Landfill, Inc. v. State, 313 Ark. 669, 858 S.W.2d 665 (1993); Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992). Moreover, Farm Bureau does not allege any specific flaws or omissions in the trial court’s order; Farm Bureau merely relates its dissatisfaction with the trial court’s findings. In Miles v. Southern, 297 Ark. 274, 280-B, 760 S.W.2d 868 (1988), we stated that the trial court is not required to give detailed reasons for its action. Here, Judge Ward’s order reflected that he had “considered each ground identified by the parties, and found that the Arkansas court of appeals would have affirmed the judgment in the underlying [Gammon v. Knight] case on appeal.” For these reasons, we reject Farm Bureau’s request to remand this case for further findings.
We turn now to the heart of Farm Bureau’s appeal — the question of whether the Pulaski County court correctly found that the underlying Phillips County case between Gammon and the Knights would have been affirmed if Daggett had timely filed the Knights’ appeal. We begin our discussion of this point by setting out the appropriate standard of review in legal malpractice cases. An attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of his or her client. In order to prevail under a claim of legal malpractice, a plaintiff must prove that the attorney’s conduct fell below the generally accepted standard of practice and that this conduct proximately caused the plaintiff damages. Anthony v. Kaplan, supra; Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 843 (1995). To show damages and proximate cause, the plaintiff must show that, but for the alleged negligence of the attorney, the result in the underlying action would have been different. Anthony, supra; Callahan, supra. See also Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 30.44, at 614 (5th ed. 2000) (“At a minimum, the client must allege that the judgment would have been appealed . . . and would have been reversed but for the attorney’s negligence.”). In reviewing this issue, it was incumbent on the trial court to act as an appellate court would act and review the decision under the same standard the appellate court would use. Skokos, 335 Ark. at 52.
In support of Farm Bureau’s argument that the outcome of the underlying case would have been different, Farm Bureau urges this court to conclude that the Phillips County Circuit Court’s verdict in Gammon’s favor would have been reversed on appeal. Farm Bureau urges that it would have prevailed on appeal based upon the following five alleged errors of law by the trial court: 1) refusing to permit testimony from the Knights’ mechanic expert, Leon Mallard; 2) refusing to allow the Knights to call their accident reconstruction expert witness, Larry Williams; 3) giving AMI 903 over Knight Farms’ objections, and refusing to give AMI 901 to the jury; 4) declining to excuse a juror for cause; and 5) causing prejudice due to cumulative error. We address each of these points in turn.
In support of its first argument that it would have prevailed on appeal, Farm Bureau asserts that the Phillips County Circuit Court, Judge L. T. Simes presiding, erred in refusing to permit Leon Mallard to testify on behalf of Knight Farms. We review evidentiary errors under an abuse-of-discretion standard. Arkansas Department of Human Services v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002); Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998). The trial court has broad discretion in its evidentiary rulings; hence, the trial court’s findings will not be disturbed on appeal unless there has been a manifest abuse of discretion. Id.
At the Phillips County trial of this case, plaintiff Alfred Gammon testified that he was driving a load office down Highway 44. As he came to a sharp curve in the road, he testified that he applied the brakes, but he “heard nothing but air behind the cab and the truck was gone. . . . [He] had no control of the vehicle by use of the brakes.” Gammon also testified that there were “abunch of gauges on this truck that really didn’t work. It had no horn. It did not have a buzzer to let you know if the air pressure was falling on it[.]” Gammon also introduced the testimony of Wayne Edwards, who stated that he examined the truck immediately after the accident, and that the brakes were “out of adjustment totally.” Edwards also testified that it was his opinion that the Knights had improperly maintained the truck.
The Knights called Leon Mallard, a mechanic who worked for Knight Farms, who testified that the air brakes were “working fine” the last time he looked at the truck and that there had been “no complaints” about the truck. Mallard then stated that the last time he had “hands-on, physical contact with this vehicle [was] in May of 1994, the day before, or a couple of days before when we put the brakes and stuff on it.” Daggett, as counsel for Knight Farms, then asked Mallard if he had contact with the truck on the day of the accident, September 3, 1994. Gammon’s counsel objected, but Mallard continued, stating, “As far as working on it, no.” The court then asked Gammon’s attorney what his objection was, and counsel replied that Daggett was attempting to impeach his own witness by having Mallard contradict his own testimony. Gammon’s counsel further argued that Mallard had “just testified the last contact that he had with this vehicle was a dáy or so before they put the brakes on it. . . . Now Mr. Daggett comes back and asks him, what contact did he have with it that day [the day of the accident]. He just testified [that] he hadn’t had any contact with this truck since May, before he put the brakes on.”
Daggett replied that it was crucial to his case that he be allowed to introduce Mallard’s testimony that Mallard had checked the truck on the day of the accident. Daggett also explained in a subsequent proffer that Mallard would have testified that, on the morning of the accident, he started the truck; at that time, the air buzzer and pressure gauge were working, and the air pressure built up properly on the truck without any sign of a leak. Judge Simes, however, refused to permit Daggett to introduce this proffered testimony.
Mallard was permitted to testify that all of the truck’s systems were working the last time he physically worked on it in May 1994, and that no one had complained about any problems with the truck from May until the day of the accident, September 3, 1994. Mallard also testified that, on the morning of the accident, he was right next to the truck and did not hear any air leaks. Mallard further explained that if the truck had lost air pressure, the ’’brakes would lock down. If you tried to drive it out of the field with the brakes locked down they would just choke the motor down or burn the clutch.”
In this appeal, Farm Bureau contends that Daggett was improperly prevented from having Mallard explain his testimony, and that Gammon’s attorney could have explored any perceived inconsistencies on cross-examination. Farm Bureau also argues that Mallard’s inability to testify about the condition of the truck before the accident constituted prejudicial error. Daggett responds that any error that might have occurred was harmless, because he was able to get the same point across to the jury with Mallard’s testimony that he did not hear any air leaks immediately before the accident, and that the truck would not have operated properly with the brakes “locked down.”
As mentioned above, evidentiary rulings are not reversed unless the trial court abused its discretion. An abuse of discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Ford Motor Co. v. Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995); Nazarenko v. CTI Trucking Co., 313 Ark. 570, 856 S.W.2d 869 (1993). We first note that, to the extent the trial court agreed that Daggett could not “impeach” his own witness, such a ruling was incorrect. Under the Arkansas Rules of Evidence, the credibility of a witness may be attacked by any party, including the party calling him. Ark. R. Evid. 607 (2003); see also Carton v. Missouri Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990).
Further, the effect of the trial court’s exclusion of Mallard’s testimony was to prevent the Knights from presenting evidence regarding the condition of the truck on the morning of the accident. Mallard’s proffer made it clear that he could have provided the jury with information about the physical condition of the truck before the accident happened. As the Knights’ defense was premised on their contention that the truck was properly maintained, such evidence was highly relevant. The trial court’s exclusion of Mallard’s testimony improperly thwarted the admission of relevant and probative evidence. This was error on the trial court’s part. If the Knights’ appeal had been correctly lodged, the exclusion of Mallard’s proffered testimony would have been error and grounds for reversal. We reach the same conclusion when reviewing Farm Bureau’s second point.
In Farm Bureau’s second point, it argues the Phillips County court erred when it refused to permit Knight Farms’ expert witness, Larry Williams, to testify. Williams, an accident reconstructionist, would have testified that, based on his interpretation of the skid marks left by the truck at the accident, there was no evidence ofbrake failure; he would also have opined that Gammon applied his brakes too late into the curve to be able to control his truck. Prior to trial, Gammon filed a motion in limine seeking to exclude Williams’s testimony, contending that Williams would only be offering evidence about the speed of the truck, a subject on which there would be no need for expert testimony. The Knights rejoined that Williams would not just be testifying about speed, but would also offer opinions and testimony concerning the existence and interpretation of skid marks, scuff marks, and rollover marks at the accident scene; the issue of whether or not the braking system on the truck failed that day; and whether or not Gammon failed to maintain proper control over the truck at the time of the accident. Judge Simes granted Gammon’s motion, finding that speed was not an issue too convoluted that the jury could not make its own determination from other evidence.
Judge Simes’s ruling on this question was also an abuse of discretion. It is true that, in the past, this court held that attempts to reconstruct accidents by means of expert testimony were viewed with disfavor. See B & J Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984); Reed v. Humphreys, 237 Ark. 315, 373 S.W.2d 580 (1964); and other cases cited in Drope v. Owens, 298 Ark. 69, 72, 765 S.W.2d 8 (1989). However, in the Drope case, this court pointed out that it has also consistently recognized exceptions to this general rule where it appears that a particular situation is beyond the jurors’ ability to understand the facts and draw their own conclusions. Drope, 298 Ark. at 73 (citing Price v. Watkins, 283 Ark. 502, 678 S.W.2d 762 (1984); B &J Byers Trucking, Inc. v. Robinson, supra; Wright v. Flagg, 256 Ark. 495, 508 S.W.2d 742 (1974); and Woodward v. Blythe, Adm’r, 249 Ark. 793, 462 S.W.2d 205 (1971)). The Drope court further stated the following:
It has been said that under Uniform [now Arkansas] Evidence Rule 702 the question is whether specialized knowledge will assist the jury to understand the evidence or determine a fact issue. B &J Byers Trucking, Inc. v. Robinson, supra. Whether or not a particular case should be governed by the general rule or should be treated as an exception thereto, is a matter within the trial judge’s discretion to be upheld on appeal absent an abuse of that discretion. Price v. Watkins, supra; B &J Byers Trucking, Inc. v. Robinson, supra; and Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980).
Drope, 298 Ark. at 73.
Since the Drope case, this court has had the opportunity to reexamine the admissibility of accident reconstruction testimony on several more occasions. In McElroy v. Benefield, 299 Ark. 112, 771 S.W.2d 274 (1989), the court affirmed the trial court’s decision to permit such testimony. There, the officer who investigated the accident scene was unable to determine the exact speed of the vehicles. Fiowever, the expert clarified the speed of the vehicles by looking at the skid marks, examining the displacement of the vehicles, and measuring distances; he was also able to dispute eyewitnesses’ testimony that the vehicles appeared airborne at the time of the crash. Because this testimony “served to aid the jury in its understanding of the evidence,” McElroy, 299 Ark. at 115, the court concluded that the trial court did not abuse its discretion in permitting the testimony.
Likewise, in Banks v. Jackson, 312 Ark. 232, 848 S.W.2d 408 (1993), the court held that the accident reconstructionist’s testimony was properly admitted where the testimony of other eyewitnesses was “at odds.“ Banks, 312 Ark. at 237. The court noted that there were “significant areas of dispute concerning the nature of the damage sustained,” and pointed out that the expert offered “detailed testimony” on these matters. Id. at 238. Because the expert was clearly able to assist the jury in analyzing the physical evidence, this court held that the trial court did not abuse its discretion in allowing the accident reconstruction expert to testify.
Finally, in J.B. Hunt Transport, Inc. v. Doss, 320 Ark. 660, 899 S.W.2d 464 (1995), the court again affirmed the trial judge’s ruling to exclude testimony by the accident reconstruction expert offered by the defendant, J.B. Hunt. This court appeared to place great emphasis on the trial court’s reasoning, noting that the lower court had emphasized the fact that the photographs used by the expert to reconstruct the accident scene did not show the entire area around the crash. In concluding that the trial court did not err, this court wrote as follows:
In all evidentiary matters, the trial judge must be afforded broad latitude because he or she alone is in the best position to decide what evidence would aid the jury and what would confuse the issues. Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982). Unless the trial judge is clearly wrong, we will not substitute our judgment for his or hers. Id.
J.B. Hunt, 320 Ark. at 666-67.
In the present case, the Phillips County court was clearly wrong. The Knights’ proffer of Williams’s testimony made it abundantly clear that Williams would not be offering his expert opinion solely on the issue of how fast Gammon was driving. Rather, Williams’s proffered testimony contained his opinion that the 123 feet of straight skid marks left by the tractor-trailer at the scene of the accident showed that the brakes on both the left and right sides of the axle were braking equally, and that the straight marks also showed that the brakes on the tractor and the brakes on the trailer were both working properly. If the brakes on one had gone out, Williams stated, the trailer would most likely have jack-knifed. From the skid marks, Williams opined that the reaction of the driver was too late; it was “an attempt to make a panic stop. For whatever reason, [Gammon] got too close to the curve before slowing down or attempting to slow down because he was still going beyond the capacity of the truck to follow the curvature of the road when he got into it.” Williams’s ultimate opinion was that the brakes on the truck were working properly, and did not fail.
This accident reconstruction testimony obviously went far beyond the question of speed. None of the lay witnesses who testified about the truck’s speed could have offered similar testimony about what the skid marks indicated, and certainly none could have offered an opinion about the efficacy of the brakes. An expert may offer testimony if his or her “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Ark. R. Evid. 702. Clearly, Williams’s testimony would have assisted the jury in determining the ultimate question in the case —' whether the truck’s brakes failed — and the trial court oversimplified the matter in ruling that Williams’s entire expert testimony was inadmissible. Fiad this case been properly appealed, Gammon’s verdict would have been reversed on this issue.
Farm Bureau’s third argument is that the trial court erred in refusing to instruct the jury on the common law rules of the road, see AMI Civ. 4th 901, and in giving Gammon’s requested AMI Civ. 4th 903. AMI 901 describes a driver’s duty to look out for other vehicles, to keep his vehicle under control, and to drive at a speed that is reasonable and prudent under the circumstances. Farm Bureau argues that this would have been a proper instruction that would have informed the jury regarding Knight Farms’ theory of the case.
In arguing to Judge Simes that the jury should be given AMI 901, the Knights asserted that there was, at the least, circumstantial evidence that Gammon was driving too fast at the point the road curved. When Judge Simes asked what evidence he had of Gammon driving at a speed greater than what was reasonable, Daggett, as counsel for the Knights, conceded that the judge had excluded such evidence when the judge disallowed all of Larry Williams’s testimony. Gammon’s counsel responded that there was no evidence that Gammon was “driving” too fast, but there was evidence that the vehicle was “going” too fast, and that this speed was due to the fact that the brakes failed. Judge Simes ruled that he would not give AMI 901 because there had been no evidence that Gammon had been speeding at the time of the accident. His ruling was erroneous.
This court has consistently held that a party is entitled to a jury instruction when it is a correct statement of the law, and there is some basis in the evidence to support giving the instruction. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003); Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001); Coca-Cola Bottling Co. v. Priddy, 328 Ark. 666, 945 S.W.2d 355 (1997); Davis v. State, 293 Ark. 472, 739 S.W.2d 150 (1987) (a party is entitled to have the jury instructed on his theory of the case). This court will not reverse a trial court’s refusal to give a proffered instruction unless there was an abuse of discretion. Barnes, supra. Furthermore, it is not error for the trial court to refuse a proffered jury instruction when the stated matter is correctly covered by other instructions. Dodson, 345 Ark. at 459.
Here, the AMI 901 instruction was a correct statement of the law, but Judge Simes refused to give it because there was no evidence that Gammon was speeding. However, AMI 901(C) provides, “It is the duty of a motor vehicle to drive at a speed no greater than is reasonable and prudent under the circumstances, having due regard for any actual or potential hazards.” (Emphasis added.) Here, the only reason there was no evidence that Gammon was speeding as he entered the curve was because the trial judge refused to permit Farm Bureau’s expert, Larry Williams, to testify to that effect. Williams’s proffer reflects he would have testified, if allowed, that his theory of the case was that Gammon simply “ran up to the curve too fast and Gammon’s brake reaction time did not allow Gammon to stop.” Williams further averred that the first skid marks on the ground showed Gammon’s brake application was too late and was his attempt to make a “panic stop.” In refusing all of AMI 901, the judge compounded his error by also excluding 901(B), which would have instructed the jury that Gammon had a duty to keep his vehicle under control. The trial judge’s refusal to instruct the jury on the Knights’ theory of the case was an abuse of discretion.
Farm Bureau also argues that the trial court should not have given AMI 903 to the jury, because it was an abstract instruction. AMI 903 provides that violation of a statute, “although not necessarily negligence, is evidence of negligence to be considered by [the jury] along with all of the other facts and circumstances in this case.” The statute referenced in the instruction as given was Ark. Code Ann. § 27-37-501 (Repl. 1994), which provides that vehicles must be equipped with brakes adequate to control the movement of and to stop and hold the vehicle, including two separate means of applying the brakes. Section 27-37-501 also includes a requirement that all trucks of a certain size be equipped with brakes, and provides that the parking brake or brakes on a truck “shall be so designed, constructed, and maintained that when once applied they shall remain in the applied condition with the required effectiveness[.]” Knight Farms objected to AMI 903 at trial, arguing that there had been no proof that the truck driven by Gammon did not meet these statutory requirements. The trial court gave the instruction over Knight Farms’ objection, finding that there was evidence about the maintenance and effectiveness of the brakes, and that there were multiple systems that were supposed tó stop the truck.
Jury instructions must be based on the evidence in the case, and instructions that reference matters on which no evidence was presented should not be used. Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999). In Parker v. Holder, 315 Ark. 307, 867 S.W.2d 436 (1993), this court held that instructions stating only abstract legal propositions should not be given. Parker, 315 Ark. at 314 (citing Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993)). See also Pettus v. McDonald, 343 Ark. 507, 36 S.W.3d 745 (2001) (jury instructions stating abstract legal propositions without any evidentiary basis should not be given). Further, prejudice will be presumed from the giving of an erroneous instruction unless some additional factor makes it clear that the erroneous instruction was harmless. Arthur, supra; Dillard Dep’t Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993).
In this case, there was no evidence whatsoever that the truck was not properly equipped with the brakes required by § 27-37-501. Therefore, the AMI 903 instruction referenced matters on which no evidence was presented, and it was error for the court to approve it. There are no additional factors that make it clear the giving of this erroneous instruction was harmless; in fact, the refusal to give AMI 901 only made the situation worse, as it implied to the jury that there was nothing wrong with Gammon’s driving and that the fault lay in not providing proper brakes. We cannot say this error was harmless, and we conclude that, had this case been properly appealed, the verdict against the Knights would have been reversed.
Farm Bureau’s next point is that Judge Simes erred by refusing to allow Knight Farms to strike a juror for cause, when that refusal caused Knight Farms to exercise all of its peremptory challenges and forced it to accept another juror that it otherwise would have challenged. During voir dire, potential Juror Sykes asserted that he was related to Jimmie Wilson, one of Gammon’s attorneys. Upon questioning, he stated his belief that he was Wilson’s cousin “on down the line,” and was somehow related by marriage. Wilson clarified that Sykes’s aunt was married to Wilson’s uncle in 1953, but they divorced in 1959, and the uncle had since died. Later during voir dire, potential Juror Hunt disclosed that his wife worked for one of Gammon’s attorneys. The trial court denied the request to strike Hunt for cause, and Knight Farms used a peremptory challenge to remove him. At the conclusion of the trial, after the jury had been instructed, Daggett asked the court to excuse Juror Sykes, noting that he would have used a peremptory challenge on this juror, but was unable to do so because the court forced him to use his last peremptory challenge on Juror Hunt. The judge declined to do so, and Farm Bureau now asserts that, had this issue been raised on appeal, the appellate court would have reversed on this point.
Farm Bureau’s argument is without merit, as there would have been no basis for excusing Juror Sykes for cause. To preserve for appeal an objection to an empaneled juror, a party is required to have exhausted his or her peremptory challenges and must show that he or she was forced to accept a juror who should have been excused for cause. Berry v. St. Paul Fire & Marine Ins. Co., 328 Ark. 553, 944 S.W.2d 838 (1997) (emphasis in original). Flere, there would have been no reason to excuse Juror Sykes for cause, because he was not related to any party or attorney in the case within the fourth degree of consanguinity or affinity. See Ark. Code Ann. § 16-31-102(b) (1) (Repl. 1999). Even if Sykes’s aunt had not divorced Wilson’s late uncle forty-plus years prior to this trial, this court has held that there is no affinity between the blood relations of the husband and the blood relations of the wife. Mitchell v. Goodall, 297 Ark. 332, 761 S.W.2d 919 (1988) (citing North Arkansas & Western Ry. Co. v. Cole, 71 Ark. 38, 70 S.W. 312 (1902)). There was no affinity between Sykes and Wilson, so Sykes would not have been excused for cause. The trial court’s refusal to excuse Juror Hunt for cause, so that the Knights could exercise a peremptory challenge on Sykes, was not an abuse of discretion.
Finally, Farm Bureau raises a cumulative error argument, contending that Knight Farms was denied a fair trial because of the cumulative effect of the trial court’s prejudicial rulings. An appellant asserting a cumulative-error argument must show that there were individual objections to the alleged errors and that the cumulative error objection was made to the trial court and a ruling was obtained. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). At the conclusion of the trial, Daggett moved for mistrial, stating that the basis “is a cumulative motion.” The trial court denied the motion. On appeal, Farm Bureau points to four particular alleged errors and claims they added up to cumulative error: 1) the issue of spoliation; 2) the exclusion of an air chamber test; 3) the exclusion from evidence of an air board; and 4) the trial court’s bias against defense counsel.
With respect to the issue of spoliation, Farm Bureau argues that the trial court improperly admitted testimony and evidence that the truck involved in the accident was destroyed, and the effect of this testimony was to permit an improper inference that Knight Farms destroyed its truck in an attempt to hide something. The accident in this case occurred on September 3, 1994; Gammon’s expert witness, Wayne Edwards, examined the truck that same day and videotaped his inspection of the vehicle. The truck was subsequently salvaged. During trial, Gammon’s attorneys frequently asked questions regarding the destruction of the truck. In response to an inquiry as to whether Kenneth Knight had destroyed the vehicle, Knight Farms moved for a mistrial, which the court denied.
Farm Bureau now argues that the repeated references to the destruction of the truck was prejudicial and irrelevant, and contends that the trial court should have granted Knight Farms’ motion for mistrial. However, this court has repeatedly held that mistrial is a drastic remedy that should only be granted (1) when there has been error so prejudicial that justice could not be served by continuing the trial or (2) when the fundamental fairness of the trial has been manifestly affected. J. E. Merit Constructors, Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001); Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000); Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999). The trial court has wide discretion in granting or denying a motion for mistrial, and that decision will not be disturbed on appeal absent an abuse of discretion or manifest prejudice to the movant. Id.
Here, in denying Daggett’s motion, the trial court noted that similar testimony had already been introduced without objection. Thus, any subsequent evidence would simply have been cumulative. Further, Judge Simes refused to give the jury Gammon’s requested instruction on spoliation, thus circumventing the jury’s consideration of the issue during its deliberations. Therefore, no prejudice resulted from the trial court’s denial of Daggett’s motions for mistrial on the issue of spoliation.
Farm Bureau’s second issue under its cumulative error argument is that the Phillips County Circuit Court erred in excluding the results of a test performed on one of the truck’s brake chambers by Knight Farms’ brake expert, Dennis Collins. This “air test” was intended to demonstrate that the Knights’ truck’s brakes would not have failed in the manner suggested by Gammon’s theory of the case. Collins had performed the air test on the brake chamber in November of 1998, and Daggett offered to let Gammon’s attorneys run the same test on the chamber, saying that he would be happy to duplicate Collins’s tests in Gammon’s attorneys’ presence. However, Gammon’s attorneys never agreed to have the test duplicated. Ultimately, the trial court ruled that the test results were inadmissible, basing its decision on Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998), in which this court noted the rule that when a test or experiment is an attempt to reenact the original happening, the essential elements of the experiment must be substantially similar to those existing at the time of the original occurrence. The trial court, stating that the tests were an attempt to “simulate an accident in a vacuum,” ruled the tests results were inadmissible. The court also found that Knight Farms agreed not to perform the test unless Gammon’s attorneys were there.
In this appeal, Farm Bureau argues that this ruling was erroneous for two reasons. First, Farm Bureau contends that a party should not be able to block the admission of test results by refusing to attend the testing, and then rely on their absence as grounds for exclusion. While we certainly do not condone the actions of Gammon’s attorneys, Jimmie Wilson and Dion Wilson, we also point out that Farm Bureau has offered no authority to support this argument for reversal. Secondly, Farm Bureau maintains that the experiment should have been admitted, even though it did not conform to the conditions surrounding the litigated situation, because it was designed to show the general traits and capacities of material involved in the controversy. See Carr v. Suzuki Motor Co., 280 Ark. 1, 655 S.W.2d 364 (1983).
The general rule is that a trial court has discretion in determining the relevance of evidence and in gauging its probative value against unfair prejudice, and its decision on such a matter will not be reversed absent abuse of that discretion. Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995). It is also well-settled that when a test or experiment is an attempt to reenact the original happening, the essential elements of the experiment must be substantially similar to those existing at the time of the accident. Carr v. Suzuki Motor Co., supra. Although it is not necessary that the conditions of an experiment be identical to those existing at the time of the occurrence, there must be a substantial similarity, and the variation must not be likely to confuse and mislead the jury. Id. When an experiment is done out of the presence of the opposing party, this court has held that the trial court did not abuse its discretion in finding that the integrity of the tests were violated and the test results were inadmissible. Thomson, supra. Here, the trial court ascertained that the attempt to repeat the earlier test would not be sufficient to reenact the original occurrence; based on the facts presented, it was within the court’s discretion to reach such a conclusion.
Next, Farm Bureau asserts that the trial court abused its discretion in denying Knight Farms’ attempt to introduce an “air board,” a training aid that simulated the brake system on a tractor and the air brake system on a trailer. This air board would have been used to demonstrate whether or not the truck’s brakes were working properly. During the trial, Knight Farms proposed that this evidence would demonstrate to the jury how the brake system on the truck actually worked. Fiowever, the trial court refused to let him use this piece of demonstrative evidence. After the jury retired, Knight Farms proffered Dennis Collins’s testimony about the air board. Collins said that he could have used the physical exhibit to actually show the jury what he was talking about, instead of just describing how the components of a truck’s braking system worked.
The trial court found that the air board still would not have been admissible, stating that the air board system was not substantially similar to the existing events at the time of the original occurrence. The court explained further that there was “no way” the exhibit could “simulate the weight on the truck, the conditions of the road, the road surface, the age of the equipment .... The witness himself admits that he cannot simulate the tires on the road, which is essential to stopping a truck[.]” In sum, the court concluded, the demonstration would be confusing to the jury, and therefore should be excluded.
Again, in Carr v. Suzuki Motors, this court held that the essential elements of an experiment must be substantially similar to those existing at the time of the accident. Here, the court determined that the experiment was very much unlike the conditions at the time of the accident; accordingly, we cannot say that this ruling was an abuse of discretion.
Farm Bureau’s final point under its cumulative error argument is that the trial court consistently demonstrated bias against Daggett, the Knights’ counsel. In its brief, Farm Bureau cites numerous instances in which Judge Simes cut Daggett off, refused to let him make a record, threatened him with contempt, limited his examination of witnesses, and pressed Daggett to hurry up his presentation of his case.
Farm Bureau no doubt included these references to specific moments of perceived bias because this court has held that it will not reverse on an allegation of bias where there are no specific examples ofbias in [the] brief. See Mitchell v. State, 314 Ark. 343, 863 S.W.2d 268 (1993). However, both Mitchell, supra, and Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001), held that an argument regarding judicial bias was not preserved for appellate review because there had been neither objection to the allegedly biased statements below nor a motion for the trial judge to recuse. See Mitchell, 314 Ark. at 343; Dodson, 345 Ark. at 441. Farm Bureau’s abstract of the trial does not show that Daggett ever asked the trial judge to recuse, and its brief does not point out where such a motion was made.
Farm Bureau’s last point on appeal returns this court’s attention to the actions of the Pulaski County Circuit Court, which considered the legal malpractice case against Daggett. Here, Farm Bureau argues that Pulaski County Circuit Judge Ward erred by denying its motion for summary judgment on the breach of contract claim. The court’s ruling reads as follows:
[Daggett’s] breach in this action was his failure to timely docket the record on appeal. Because the court has found that had [Daggett] not breached his contract with [Farm Bureau], the judgment in the underlying case still would have been affirmed, as a matter of law, [Farm Bureau] cannot prove that they sustained damages as a result of this breach. Proof of damages is an essential element of a breach of contract claim.
On appeal, Farm Bureau contends that Judge Ward injected an element of proximate causation into a breach of contract issue, and that such an approach was improper, because an allegation of breach of contract does not involve proximate cause. In support of its argument, Farm Bureau cites Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996), wherein this court held that, in a legal malpractice claim involving an allegation of breach of contract, “proximate causation is not an essential element to a finding of damages due to contractual breach.” Clark, 323 Ark. at 389.
The Pulaski County court appears to have found that Daggett did, in fact, breach his contract with Farm Bureau. We agree with this portion of the court’s ruling. However, as set forth above, the court was wrong in its conclusion that there could have been no proof of damages due to the fact that the “judgment in the underlying case still would have been affirmed.” We therefore reverse and remand to the Pulaski County court for a determination of what damages, if any, Farm Bureau incurred as a result of Daggett’s failure to timely docket the appeal in the Phillips County case.
Imber, J., dissents in part.
Ordinarily, an order denying a motion for summary judgment is not an appealable order. However, such an order is appealable when it is combined with a dismissal on the merits that effectively terminates the proceeding below. Gammill v. Provident Life, 346 Ark. 161, 55 S.W.3d 763 (2001); see also Ark. R. App. P. 2(a)(2); Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987); Karnes v. Trumbo, 28 Ark. App. 34, 770 S.W.2d 199 (1989). In the Gammill case cited above, the trial court granted Provident’s motion for summary judgment, and at the same time, denied Gammill’s motion, dismissing his claims with prejudice. In these circumstances, this court held, Gammill properly appealed the trial court’s denial of his summary-judgment motion. Much the same situation is present here: Judge Ward denied Farm Bureau’s motion at the same time it granted Daggett’s, and also dismissed Farm Bureau’s complaint with prejudice. Therefore, Farm Bureau properly appeals the denial ofits summary-judgment motion. | [
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Per Curiam.
On March 19, 2002, a judgment and conviction order was entered reflecting that Amy Bankston had entered a plea of guilty to one charge of second degree murder and three counts of terroristic act. She was sentenced by the trial court to an aggregate term of eighty years’ imprisonment. Bankston was represented at trial by attorney Dana Reece. No appeal was taken from the sentencing judgment, and Bankston now seeks to proceed with a belated appeal pursuant to Rule 2(e) of the Rules of Appellate Procedure — Criminal, which permits a belated appeal in a criminal case in some instances. Petitioner Bankston contends that she desired to appeal the sentences, but was advised by Ms. Reece that an appeal would not be in her best interests. Nothwithstanding advice of counsel, Bankston claims that members of her family tried repeatedly to contact Ms. Reece in person and by telephone, but were unsuccessful. In her motion, Ms. Bankston, by her newly retained counsel, Mark Flampton, requests that she be granted leave to file a belated appeal, allow Ms. Reece to be withdrawn as attorney of record, that Mark Flampton be allowed to enter an appearance on behalf of appellant, and that, in the alternative, the case be remanded to the trial court to settle the record.
There is no order in the record relieving Dana Reece as counsel in this case. Rule 16 of the Rules of Appellate Procedure — Criminal provides in pertinent part that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal, unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause. However, under Rule 2(a)(1) of the Rules of Appellate Procedure- — -Criminal, we have held that a defendant may waive his right to appeal by his failure to inform counsel of his desire to appeal within the thirty-day period allowed for filing a notice of appeal. Sanders v. State, 330 Ark. 851, 956 S.W.2d 868 (1997); Jones v. State, 294 Ark. 659, 748 S.W.2d 117 (1988).
Because the proper disposition of the motion for belated appeal in this case requires findings of fact which must be made in the trial court, we remand this matter to the circuit court for an evidentiary hearing on the issue of whether Ms. Reece was informed by petitioner Bankston of her desire to appeal within the time period allowed for filing a notice of appeal. See Strom v. State, 346 Ark. 160, 55 S.W.3d 297 (2001). The trial court is directed to enter Findings of Fact and Conclusions of Law within ninety days and to submit the findings and conclusions to this court with the transcript of the evidentiary hearing.
Remanded. | [
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Robert L. Brown, Justice.
This is an appeal from an order dismissing the complaint of appellants Richard L. Preston and Gloria Preston. The Prestons raise the following points on appeal: (1) their complaint filed by non-licensed attorneys should not nullify their cause of action because their complaint was filed within the time limits of the statute of limitations; and (2) the trial court erred in granting the appellee doctors’ motions to deem their requests for admission of facts admitted. We hold that the points raised on appeal have no merit, and we affirm.
On November 17, 1999, Richard Preston fell and broke his left femur in Fort Smith. He was taken to the University Hospital in Little Rock for treatment. Two days later, Drs. Gruenwald, Gati, Grammar, Hughes, Roman, and Sedaros (appellee doctors) inserted a compression plate into his left femur at the University Hospital. While the doctors were inserting screws into the plate, the drill bit apparently broke, numerous screws apparently broke, and the screws and drill bits were left inside the femur. Richard Preston later complained of pain during follow-up visits to the hospital.. On February 17, 2000, x-rays were taken and disclosed that displaced screws and screw heads were present in the muscle tissue of the left thigh area adjacent to the compression plate.
On November 19, 2001, the Prestons filed their complaint against the appellee doctors and University Plospital. They complained that Richard Preston sustained severe pain and damage due to the doctors’ negligence and University Plospital’s failure to credential adequately and supervise. In addition, they claimed that Gloria Preston suffered loss of consortium and mental pain and suffering. The complaint stated that the Prestons brought their complaint “by and through their attorneys Fred E. Stoops, Sr., Richard D. Marrs and Eddie D. Ramirez, of the law firm of Richardson, Stoops, Richardson & Ward” located in Tulsa, Oklahoma.
On February 11, 2002, the six appellee doctors filed separate answers. Each doctor also filed requests for six admission of facts on that same date. On February 21, 2002, University Plospital filed a separate answer and motion to dismiss based on the fact that the hospital is entitled to governmental immunity and may not be sued directly in tort. On March 5, 2002, the University of Arkansas for Medical Sciences (UAMS) also filed a motion to dismiss in which it asserted that the court lacked jurisdiction, because a claim against UAMS is a claim against the State, which is prohibited by the Arkansas Constitution.
On July 18, 2002, the appellee doctors filed motions to deem requests for admission of facts admitted. The next day, the appellee doctors filed a motion to strike the Prestons’ complaint in which they argued:
There have been no filings for request for admission Pro Hac Vice, there is no local counsel involved, and there has been no certificate or affidavit filed with the Court stating that any of the Oklahoma lawyers listed on the Complaint have agreed to be bound by Arkansas’ disciplinary rules or that there is any type of comity with the State of Oklahoma.
On July 25, 2002, the Prestons responded to the appellee doctors’ motions to deem requests for admission of facts admitted and filed a motion for leave to file responses to those requests out of time. The Prestons claimed that their responses were prepared and dated February 14, 2002, but that they either were not forwarded to the doctors’ counsel or were forwarded but not received.
On July 25, 2002, the Prestons’ Oklahoma counsel filed motions for admission pro hac vice to practice law before the circuit court. Counsel Fred Stoops asserted in his motion that he is authorized to practice law in Colorado and Indiana state courts and in Oklahoma state and federal courts; that he is an active member of the Oklahoma Bar Association and Indiana Bar Association and a resident of Oklahoma; that he is a regularly admitted practicing attorney in good standing in Oklahoma and Indiana courts of record; that he has appeared before Arkansas courts in connection “with a number of matters previously;” and that he submits himself to all disciplinary procedures in Arkansas. Counsel Richard Marrs asserted in his motion that he is authorized to practice law in Oklahoma state and federal courts, the United States Court of Military Appeals, the United States Court of Appeals D.C. Circuit, and the United States Court of Appeals 10th Circuit; that he is an active member of the Oklahoma Bar Association and a resident of Oklahoma; that he is a regularly admitted practicing attorney in good standing with the courts of record in Oklahoma; and that he will submit himself to all disciplinary procedures in Arkansas. Counsel Eddie Ramirez asserted in his motion that he is authorized to practice law in Oklahoma state and federal courts; that he is an active member of the Oklahoma Bar Association; that he is a regularly admitted practicing attorney in good standing in the courts of record in Oklahoma; and that he agrees to submit himself to all disciplinary procedures in Arkansas.
On August 2, 2002, the circuit court dismissed the Prestons’ claims against UAMS and University Hospital without prejudice. On August 19, 2002, the appellee doctors responded to the motions for admission pro hac vice of counsel Marrs, Ramirez, and Stoops and proposed that the circuit court deny the motions for admission pro hac vice and dismiss the Prestons’ complaint, because their attorneys are not licensed to practice law in Arkansas. They further asserted that the Oklahoma counsel moved to be admitted to practice law pro hac vice after the Prestons filed their complaint. The appellee doctors claimed that the Prestons are forever barred from filing their cause of action, because the two-year statute of limitations for medical negligence has run.
On September 27, 2002, the circuit court conducted a hearing on the pro hac vice matter. At that hearing, Arkansas attorney Lamar Porter pointed out to the court that the Prestons’ Oklahoma attorneys should not be deemed to be unauthorized to practice law in Arkansas, because Oklahoma has similar rules of comity and because Arkansas attorneys in Fort Smith apparently practice law in Oklahoma and Oklahoma attorneys practice law in Fort Smith.
On October 3, 2002, the circuit court entered its order of dismissal in which it granted the appellee doctors’ motion to strike the complaint, because the Prestons’ counsel were not licensed to practice law in Arkansas. The court found, as a result, that the Prestons’ complaint was a nullity and concluded that their claims were forever barred, because the two-year statute of limitations had expired. The court also granted the appellee doctors’ motion to deem their requests for admission of facts admitted and ruled that the Prestons, because of this, had no substantive cause of action. The court dismissed the Prestons’ complaint with prejudice.
The Prestons first argue on appeal that they filed their cause of action within the statute of limitations and that they should not be penalized, because their attorneys were not licensed to practice law in Arkansas. They contend that our case of Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002), should not apply to this matter, because Davenport dealt with a wrongful-death action in which the parties failed to comply with Arkansas statutes. They point out that the plaintiffs in Davenport lacked standing to file a wrongful-death action, because they were not personal representatives and did not make up all statutory beneficiaries joined as parties to the suit, as the statute required. The Prestons assert that they, as individuals, should not be seen as being engaged in the unauthorized practice of law, forever barring them from pursuing their cause of action.
The Prestons further urge that the present cause of action should be allowed to go forward even if this court determines that their attorneys were engaged in the unauthorized practice of law. They underscore that Arkansas has other methods of dealing with the unauthorized practice of law, as set forth in Davenport v. Lee, supra, such as dismissal, reversal of a judgment in the cause, and disregarding the actions taken by the unauthorized practitioner. They further maintain that they should be allowed to pursue their complaint regardless of who the attorneys are and even if they did not have counsel at all. Finally, they claim that their attorneys have previously been allowed to practice before various state courts in Arkansas and that, accordingly, they have the right to bring their cause of action.
When we review an order granting a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. See Davenport v. Lee, supra; Goff v. Harold Ives Trucking Co., 342 Ark. 143, 27 S.W.3d 387 (2000). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. Davenport v. Lee, supra; Goff v. Harold Ives Trucking Co., supra.
This point clearly turns on whether the Prestons’ Oklahoma attorneys were engaged in the unauthorized practice of law in Arkansas. The Oklahoma counsel unquestionably were practicing law in Arkansas, because they filed a complaint on behalf of the Prestons in an Arkansas court. See Davenport v. Lee, supra; Arkansas Bar Assn. v. Union National Bank of Little Rock, 224 Ark. 48, 273 S.W.2d 408 (1954). The real question for this court to resolve is whether that legal practice was authorized under Arkansas law. In the past, we have emphasized the importance of being authorized to practice law in this state by noting:
It seems well settled that unauthorized practice of law, at least by court appearances, is an unlawful intrusion and usurpation of the function of an officer of the court, and constitutes a contempt of any court in which or under whose authority or sanction the unauthorized person pretends to act.
McKenzie v. Burris, 255 Ark. 330, 334-35, 500 S.W.2d 357, 361 (1973).
Admission to the bar of Arkansas and the practice of law in this state are governed by Ark. Code Ann. §§ 16-22-201 through 16-22-213 (Repl. 1999). Section 16-22-206 states: “No person shall be licensed or permitted to practice law in any of the courts of record of this state until he has been admitted to practice by the Supreme Court of this state, and every person so admitted shall be entitled to practice in all the courts of this state.” Ark: Code Ann. § 16-22-206 (Repl. 1999). Section 16-22-209 reads: “Every person who shall attempt to practice law in any court of record without being licensed, sworn, and registered, as required in this subchapter, shall be deemed guilty of a contempt of court and shall be punished as in other cases of contempt.” Ark. Code Ann. § 16-22-209 (Repl. 1999).
In Abel v. Kowalski, 323 Ark. 201, 913 S.W.2d 788 (1996) (per curiam), this court held that an unlicensed attorney may not practice law in Arkansas under Ark. Code Ann. § 16-22-206 (1987), and, thus, could not represent appellants in that case. In Abel, a person appeared pro se but purportedly tendered a motion on behalf of appellants, requesting that a certain document be added to the record on appeal. We ordered that the court of appeals strike any motions filed by that person on behalf of other parties.
In the case at hand, the Prestons’ attorneys admitted that they were not licensed to practice law in Arkansas and, therefore, were unauthorized under § 16-22-206. The follow-up question, however, is whether they were authorized to practice law in Arkansas under the principle of comity.
Rule XIV of the Rules Governing Admission to the Bar establishes our principle of comity and reads in part:
A lawyer residing outside the State of Arkansas who has been admitted to practice law in the Supreme Court of the United States or in the United States Court ofAppeals for the circuit in which the attorney resides or in the Supreme Court or the highest appellate court of the state of the attorney’s residence, and who is in good standing in the court of the attorney’s admission, will be permitted by comity and by courtesy to appear, file pleadings and conduct the trial of cases in all courts of the State of Arkansas. However, any trial court may require such nonresident attorney to associate a lawyer residing and admitted to practice in the State of Arkansas upon whom notices may be served and may also require that the Arkansas lawyer associated be responsible to the court in which the case is pending for the progress of the case, insofar as the interest represented by the Arkansas lawyer and the nonresident lawyer is concerned.
Unless the State in which the said nonresident lawyer resides likewise accords similar comity and courtesy to Arkansas lawyers who may desire to appear and conduct cases in the courts of that State, this privilege will not be extended to such nonresident lawyer.
A nonresident lawyer will not be permitted to engage in any case in an Arkansas court unless a written statement is filed with the court in which the nonresident lawyer submits to all disciplinary procedures applicable to Arkansas lawyers.
We have held that under Rule XIV a circuit court may dismiss a motion for an extension of time to file a brief by a nonresident attorney. See Walker v. State, 274 Ark. 124, 622 S.W.2d 193 (1981) (per curiam). In Walker, this court went on to say that the motion for extension of time would be dismissed if the nonresident attorney failed to sign a written statement submitting himself to all disciplinary procedures applicable to Arkansas lawyers within twenty days.
In Willett v. State, 334 Ark. 40, 970 S.W.2d 804 (1998) (per curiam), this court denied appellant’s motion to admit an attorney licensed in Texas to practice in Arkansas pro hac vice for the purpose of participating in the oral argument of the case. In Willett, the Texas attorney filed a reply brief but did not state that he was admitted to the Arkansas Bar. The motion to admit pro hac vice only stated that the nonresident attorney was in good standing in another jurisdiction, and it incorporated an affidavit of the attorney and a certificate of good standing from the Texas State Bar Association. The nonresident attorney’s affidavit also related his experience in representing clients in courts of the United States, Texas, and New Mexico .and included a statement that the attorney agreed to be bound by the rules of discipline of Arkansas.
We denied the appellant’s motion to admit the Texas attorney pro hac vice, because (1) Rule XIV:
permits the admission pro hac vice of nonresident attorneys licensed in states that grant comity to Arkansas attorneys, but neither the motion nor the affidavit mentions whether Texas courts would allow Arkansas attorneys to appear by comity in an instance similar to this one[,]
and (2) the motion and affidavit fail to state the attorney is a nonresident of Arkansas. Willett, 334 Ark. at 42, 970 S.W.2d at 805 (emphasis added). We further noted:
While there is little doubt that [the nonresident attorney] is qualified to represent [appellant], it is equally apparent that there is a lack of compliance with Rule XIV, and we have before us neither argument nor citation to authority suggesting that there is or should be an exception in this case.
Id. at 43, 970 S.W.2d at 806 (emphasis added).
In the instant case, the Prestons’ attorneys could only be authorized to practice law in Arkansas pro hac vice if the circuit court, in its discretion, extended comity to them under Rule XIV. The Oklahoma attorneys revealed in their motions fo'r admission pro hac vice that they were admitted to practice in the U.S. Court of Appeals for the circuit in which they resided and in the highest appellate court of Oklahoma and that they were in good standing in Oklahoma courts. They further submitted written statements to the circuit court in which they agreed to submit themselves to all disciplinary procedures applicable to Arkansas lawyers. Yet, the motions for admission pro hac vice were filed too late for the attorneys to receive permission to practice in this state under Rule XIV. The clear intent of Rule XIV is that the written statement be submitted before the attorneys engage in the practice of law in Arkansas.
It is undisputed that prior to filing the Prestons’ complaint on November 19, 2001, the Oklahoma counsel had not filed a motion for admission pro hac vice-, moreover, there was no local counsel involved in the matter, and the Prestons’ counsel had failed to file any certificate or affidavit stating that they were in good standing in Oklahoma, that they agreed to be bound to Arkansas disciplinary rules, or that there is comity in Oklahoma to admit Arkansas attorneys to practice in that state. Even when Oklahoma counsel filed a motion for admission pro hac vice on July 25, 2002, which was eight months late, their written statement still failed to spell out Oklahoma’s comity rule regarding Arkansas attorneys, as required by Rule XIV and as referenced in Willett v. State, supra.
The Prestons had two years to find Arkansas counsel to represent them or to have their Oklahoma attorneys file an admission to practice pro hac vice with this State before filing their complaint. Even after filing the complaint, Oklahoma counsel waited eight months to file their pro hac vice admission motion. The circuit court concluded that the Oklahoma attorneys failed to comply with our rule of comity, Rule XIV. We hold that the court’s conclusion was not an abuse of discretion.
The next question for this court to resolve is what consequences result from a complaint filed by unauthorized, unlicensed counsel. The Prestons cite this court to Davenport v. Lee, supra, and attempt to distinguish it from the case at bar. In Davenport, this court was concerned with review of an Arkansas Court of Appeals decision in which a non-attorney, personal representative was not authorized to file a pro se complaint in a wrongful-death action. The question before us was whether this defect rendered the complaint a nullity. We held that it did and said:
Under Ark.R.Civ.P.ll(a),“[a] party who is not represented by an attorney*shall sign his pleading, motion, or other paper and state his address and telephone number, if any.” In addition, Ark. R. Civ. P. 64(a), provides that, when additional counsel is employed to represent any party in a case, that counsel shall immediately cause the clerk to enter his name as attorney of record in the case and then shall notify the court and opposing counsel that he has been employed. Here, the lack of any signature by an attorney on the complaint is indicative of Appellants’ pro se status at the time this action commenced.
Davenport, 348 Ark. at 158, 72 S.W.3d at 90.
We then determined, in Davenport, that the appellants were engaged in the unauthorized practice of law and said: “It is axiomatic that it is illegal to practice law in Arkansas without a license.” Id. at 162, 72 S.W.3d at 92. We held that the complaint was a nullity and said:
In light of our duty to ensure that parties are represented by people knowledgeable and trained in the law, we cannot say that the unauthorized practice of law simply results in an amendable defect. Where a party not licensed to practice law in this state attempts to represent the interests of others by submitting himself or herself to jurisdiction of a court, those actions such as the filing of pleadings, are rendered a nullity.
Davenport, 348 Ark. at 164, 72 S.W.3d at 94. We further concluded that “the original complaint, as a nullity never existed, and thus, an amended complaint cannot relate back to something that never existed, nor can a nonexistent complaint be corrected.” Id. We hold that the same is true for the case before us. The Davenport case governs our decision, and the Prestons’ complaint is a nullity.
The Prestons finally claim that, because their attorneys were not licensed to practice law in Arkansas, it is as if the Prestons appeared pro se. They, however, did not appear pro se, because they hired attorneys to handle their case, and those attorneys signed the complaint. See Arkansas Bar Assn v. Union National Bank of Little Rock, supra. We added in Arkansas Bar Assn: “It is generally conceded that an individual who is not a licensed attorney can appear in the courts and engage in what is commonly conceded to be practicing law provided he does so for himself and in connection with his own business.” 224 Ark. at 51, 273 S.W.2d at 410. The Prestons’ pro se argument has no merit.
We next consider whether the statute of limitations has run on the Prestons’ complaint. The statute of limitations for medical negligence applicable to this case reads in pertinent part:
(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.
(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time. However, where the action is based upon the discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such two-year period, the action may be commenced within one (1) year from the date of discovery or the date the foreign object reasonably should have been discovered, whichever is earlier.
Ark. Code Ann. § 16-114-203 (Supp. 1999).
For purposes of the statute of limitations, it is the filing of the complaint that commences the cause of action. See Davenport v. Lee, supra. In the case at bar, Richard Preston underwent surgery to his left femur on November 19, 1999. On February 17, 2000, x-rays were taken and revealed debris in the muscle tissue of the left thigh. Two years after his surgery on November 19, 2001, the unauthorized Oklahoma counsel filed the complaint on behalf of the Prestons. On July 25, 2002, these same attorneys filed a motion for admission to practice pro hac vice. On October 3, 2002, the circuit court found that, because the Prestons’ attorneys were unauthorized to practice law in Arkansas, their complaint was a nullity, as if it had never been filed. Under § 16-114-203 (a), the statute of limitations for medical malpractice expired on November 19, 2001, the day the complaint, which was a nullity, was filed. Accordingly, no valid complaint was filed within the required two-year period. Under § 16-114-203 (b), even assuming arguendo that the debris found in Richard Preston’s thigh falls within the “foreign object” exception, the statute of limitations has run. However, at that time no valid and operable complaint had been filed. Thus, under either the general statute of limitations for medical malpractice or the statute of limitations for the “foreign object” exception, the Prestons’ attorneys were not authorized to practice law in Arkansas at the time the statute of limitations had run.
We reiterate our holding that the complaint was a nullity due to Oklahoma counsel’s unauthorized practice of law and, therefore, void and of no effect. We further hold that the circuit court correctly dismissed this matter because no valid complaint had been filed within the time period of the statute of limitations. Because we affirm the circuit court’s dismissal on these grounds, we need not address the Prestons’ second point relating to requests for admission of facts.
Affirmed.
The doctors requested that the Prestons admit: (1) that they do not have any qualified medical support for the allegations of negligence against the doctors in the complaint; (2) that they do not have any qualified medical support for the allegation that any alleged act of negligence against the doctors was a proximate cause of injury to Richard Preston; (3) that they do not have any qualified medical support to support the allegation in the complaint that Richard Preston’s injuries were caused by the doctors’ care and treatment; (4) that the doctors are not vicariously liable for any acts of negligence of the other named defendants; (5) that the doctors were not negligent in the care and treatment of Richard Preston; and (6) that any actions or inactions on the part of the doctors were not the proximate cause of any damages or injuries alleged in the complaint.
Our code dealing with admission and practice of attorneys at law was amended by Act 1185 of 2003 but not in a manner relevant to this appeal. | [
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W.H. “Dub” Arnold, Chief Justice.
This is the second appeal of this case. Appellant, David Alan Anderson, was previously convicted of first-degree murder and was sentenced to a term of forty years’ imprisonment for the September 12, 1998, shooting death of Jerry Markum. His conviction was reversed by the Arkansas Court of Appeals based upon improper evidentiary rulings. Anderson v. State, 71 Ark. App. 200, 33 S.W.3d 173 (2000). Appellant was retried for first-degree murder and, upon retrial, was sentenced to life imprisonment. Appellant now appeals his conviction and sentence. We affirm.
The facts of this case are not in dispute. Appellant admitted that he shot the victim but claims that he did so in self-defense. The evidence presented at trial established that on the day of the shooting, Jerry Markum and others were visitors in the home of Troy Ray, who lived at 608 North Fifteenth Street in Paragould, where appellant rented a room. Appellant arrived home with Timothy McDaniel and saw one of the visitors, Ricky Rogers, coming out of his bedroom. After asking Rogers what he was doing in appellant’s room, the two men began pushing and shoving one another, and Jerry Markum intervened. Markum hit appellant and knocked his glasses to the floor. Markum and Rogers then went into the living room, where Markum took a seat in a recliner. He yelled to appellant, “If you get your gun, I’ll cut you.”
After a few seconds, appellant, standing in an archway about three feet away from the recliner, shot Markum in the head. Markum then stood up, and appellant fired a second shot into his back and then stood over his body as it fell to the floor and fired two additional shots at close range into Markum’s neck and head. Appellant immediately fled the scene and was arrested the next day in Hayti, Missouri. For his points on appeal, appellant asserts the following as error:
1) That he was denied a fair trial when the trial court allowed him to be cross-examined on prior felony convictions that were more than ten years old;
2) That the trial court erred in excluding testimony regarding specific instances of conduct relating to the victim’s violent character;
3) That the trial court erred in excluding the testimony of a witness that the victim had threatened to break appellant’s neck the night before the incident occurred;
4) That the trial court erred when it allowed a witness to testify as to what the appellant feared the consequences of the shooting would bring;
5) That the trial court erred when it allowed the State to use an unsworn transcript of a tape that it neither still possessed nor had presented to the defense, during the examination of its own witnesses.
We find no error and affirm the case.
I. Cross-Examination on Prior Felony Convictions More Than Ten Years Old
Appellant contends that he was denied a fair trial when the trial court permitted-the State to cross-examine him regarding prior felony convictions that were more than ten years old. We hold appellant’s argument in this regard to be procedurally barred because the trial court did not rule on his objection and he did not insist upon obtaining a ruling.
The trial court granted a pretrial motion in limine filed by appellant to prevent his convictions that were more than ten years old from being allowed into evidence. At trial, however, while testifying in his own defense, appellant was asked whether he had ever been in trouble with the law, and he answered in a way that opened up the door to a discussion of his prior convictions that preceded the ten-year rule. The cross-examination was as follows:
Prosecutor: One thing I did forget to ask you. Right at the first of your direct examination, you were asked — [defense counsel] asked you, I believe, you are a convicted felon.
Appellant: That’s correct.
Prosecutor: Okay. And what felonies have you been convicted of?
Appellant: Uh — I don’t know if I can — do you have a copy of’em? You can —
Prosecutor: You can’t remember ’em?
Appellant: I — I sold some Benzedrex inhaler stuff in ’ 86 — over-the-counter medicine. Uh — I sold some of that. Uh — I went to prison for it. It’s a noncontrolled substance. Uh —
Prosecutor: Other felonies —
Appellant: . I’ve had a couple forgery charges in the ’70s.
At this point, defense counsel objected because appellant had begun to testify about convictions outside the ten-year rule and in violation of the ruling on the motion in limine. The trial court did not rule on the objection and cross-examination continued:
Prosecutor: What about aggravated robbery?
Appellant: Yes, I — in 1980, I robbed a store and got seven years and went to prison for it.
Prosecutor: Um-hum. Does that pretty well cover — any other ones you can think of? Forgery. Aggravated robbery. Controlled substance. Anything else?
Appellant: No controlled substance. It was over-the-counter medication. I’ve made some mistakes.
Although we have held that the denial of a pretrial motion in limine preserves an issue for appeal, and no further objection is required at trial, see, e.g., Hale v. State, 343 Ark. 62, 80, 31 S.W.3d 850, 861, cert. denied, 532 U.S. 1039 (2000), in the instant case, appellant’s motion in limine was granted. We have held that it is the movant’s burden to obtain a ruling, and unresolved questions and objections are waived and may not be relied upon on appeal. See State v. Montague, 341 Ark. 144, 14 S.W.3d 867 (2000). We, therefore, must then hold that it was appellant’s burden to obtain a ruling on his motion when it appeared that the trial court’s previous ruling was being violated; and, because the trial court failed to rule on appellant’s objection, appellant’s argument is, therefore, procedurally barred.
Moreover, even if appellant’s argument had, in fact, been preserved for appeal, appellant himself invited the error of discussing his prior convictions that preceded the ten-year rule by testifying vaguely that he had been in trouble with the law and then by responding to the prosecuting attorney’s questions by referring to convictions that were older than ten years. Appellant was aware of the trial court’s ruling limiting the admissibility of his previous convictions. He, therefore, should have limited his responses to those convictions that had been ruled admissible. We have held that, under the doctrine of invited error, one who is responsible for error cannot be heard to complain of that for which he was responsible. McGhee v. State, 330 Ark. 38, 41, 954 S.W.2d 206, 208 (1997). Under this doctrine, appellant cannot now claim error.
II. Testimony Regarding Specific Instances of Violent Conduct of Victim
During the State’s case-in-chief, Billy Lyles and Ricky Rogers testified that the victim, Jerry Markum, had a reputation for violence in the community. In appellant’s case-in-chief, appellant proffered the testimony of Lisa Tate, Robert “Sammy” Roberts, Officer Todd Harris, and Officer Jim Robertson as a necessary part of his defense of self-defense. Each would have testified as to specific instances of violent conduct by Markum. The trial court prohibited the proffered evidence, although it allowed Roberts and Tate to testify that Markum had a reputation for violence in the community. In addition, appellant himself did testify about specific incidences ofMarkum’s violent conduct, and further testified that he was “scared to death” of Markum.
On appeal, appellant maintains that the trial court erred in not allowing the proffered testimony regarding Markum’s specific instances of violent conduct. We disagree. This Court has held that trial courts are afforded wide discretion in evidentiary rulings. See Hawkins v. State, 348 Ark. 384, 72 S.W.3d 493 (2002). We will riot reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion. Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001). This Court will, likewise, not reverse absent a showing of prejudice. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000).
Arkansas Rule of Evidence 405(b) (2002) states: “In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.” However, this Court has held that the decedent’s character as an aggressive person is not an essential element of a defendant’s self-defense claim in a first-degree murder case because one might plead self-defense after having killed the most gentle soul who ever lived. See McClellan v. State, 264 Ark. 223, 227, 570 S.W.2d 278, 280 (1978).
Based on the above, we cannot say that the trial court abused its discretion by excluding testimony about specific instances of violent conduct by the victim. Appellant’s defense was self-defense, and he was allowed to testify that he was afraid of the victim. Moreover, the incidents proffered to demonstrate violent conduct on the part of the victim would have amounted to cumulative testimony. As such, for these reasons and because the decedent’s character is not an essential element of a self-defense for first-degree murder, we hold that the trial court did not abuse its discretion in this regard.
III. Exclusion of Testimony of Robert Roberts Regarding a Specific Violent Act by Victim
Appellant proffered the testimony of Robert “Sammy” Roberts that the night before the incident he heard Jerry Markum, the victim, threaten to either break appellant’s neck or beat him up. The trial court excluded the testimony because appellant was not aware of the threat. However, the court did allow Roberts to testify that Markum had a reputation for violence in the community and that Markum was a “bad ass.” Appellant argues that the trial court erred in excluding the testimony about the alleged threat the night before the shooting. We disagree with appellant.
As discussed above, the victim’s character is not an essential element of a defendant’s self-defense claim' in a first-degree murder case, such that the evidence of a specific violent act by the victim is admissible under Ark. R. Evid. 405(b). Further, if appellant was unaware of the threat, he cannot argue that said threat caused him to act in self-defense. For these reasons, we affirm the trial court on this point.
IV Timothy McDaniel’s Testimony
At trial, during the State’s case-in-chief, Timothy McDaniel testified that immediately after the shooting, everyone left Troy Ray’s house and that he left the scene of the crime with appellant. Fie described their course and path during the drive away from the scene and testified that the appellant said, “Do you think he’s dead, do you think he’s dead?” The prosecutor then asked McDaniel what appellant expected the consequences to be after what he had done to Markum. Appellant’s attorney objected on the basis of relevancy. The trial court overruled the objection, and McDaniel testified that appellant said, “I’ll probably spend the rest of my life in prison.” Appellant argues that the trial court erred in allowing the testimony because even if it is determined to be relevant, the probative value of the testimony is clearly outweighed by the prejudicial nature of its effect. We disagree with appellant. The evidence was clearly more probative than prejudicial.
All relevant evidence is admissible, except as otherwise provided by statute, the rules of evidence, or any other rules applicable in the courts of Arkansas. See Ark. R. Evid. 402 (2002). Rule 401 (2002) states: A “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” We have held that a trial court’s ruling on the admission of evidence is discretionary and will not be reversed absent an abuse of that discretion. See Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000).
The evidence appellant complains of is relevant for several reasons. First, appellant alleged that he shot Markum in self-defense. However, he fled the scene of the crime. We have held that flight following the commission of an offense is a factor that may be considered with other evidence in determining probable guilt and may be considered as corroboration of evidence tending to establish guilt. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002). McDaniel’s testimony was, therefore, probative to prove that appellant’s behavior in fleeing the scene was inconsistent with his self-defense claim.
Next, appellant has failed to show how McDaniel’s admitted testimony prejudiced the jury to the extent that there would have been a different verdict in the guilt phase had the testimony not been allowed. As discussed above, there was overwhelming evidence presented to establish appellant’s guilt, notwithstanding McDaniel’s testimony. For these reasons, we hold that the trial court did not err in allowing Timothy McDaniel’s testimony.
V. Transcript of Unsworn Statement
Jerry Markum’s murder was investigated by Officer J.D. Stevens of the Paragould Police Department. During the course of the investigation, the State reported that Officer Stevens took recorded statements of several witnesses. Appellant claims that when he asked for copies of the original tapes, he was told that none were available.
At trial, during the course of examination of one of the State’s witnesses, Billy Lyles, the State attempted to utilize the transcript of the unsworn testimony to lead Mr. Lyles. In response, appellant objected as follows:
Your Honor, may we approach? I would object. Number one, he is leading his own witness. Two, it is hearsay, and three, there is not a proper foundation. This is not the proper manner to refresh recollection. It is an unsworn transcript of the tape we haven’t seen.
Over appellant’s objection, the trial court allowed the questioning. Further, with the same witness, the State was allowed, over appellant’s objection, to have the witness testify that the shooting was “cold-blooded.” Appellant insists that these evidentiary rulings were in error and were extremely prejudicial to him.
We have certainly held that prior consistent statements of a witness are, in general, inadmissible to corroborate or sustain testimony given in court. However, it is well settled that a prior statement by a witness testifying at a trial is not hearsay if it is consistent with his or her testimony and is offered to rebut an express or implied charge of recent fabrication or improper influence or motive. See Harris v. State, 339 Ark. 35, 2 S.W.3d 768 (1999); see also Ark. R. Evid. 801(d)(1)(ii) (2002). Flere, we find no error.
Appellant, on cross-examination, had questioned Lyles about his felony record in order to imply that Lyles had recently fabricated his denial that Anderson shot Markum in self-defense. To that extent, the State was certainly entitled, under Ark. R. Evid. 801(d)(1)(h), to rebut the allegation with evidence that Lyles had made the same statement immediately after the offense and before the motive for fabrication came into existence. See also Beavers v. State, 345 Ark. 291, 46 S.W.3d 532 (2001).
VI. Rule 4-3 (h) Compliance
The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), and no reversible errors were found.
Affirmed. | [
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LARRY D. VAUGHT, Judge
| Appellant Francis Wise appeals the Arkansas Workers’ Compensation Commission’s (Commission) finding that she failed to prove by a preponderance of the evidence that she is entitled to additional pain-management treatment. We reverse and remand.
Wise was employed by appellee Village Inn on July 31, 2009, when she suffered an admittedly compensable injury to her back. Dr. Arthur Johnson performed surgery on Wise on January 20, 2010. The parties stipulated that on February 24, 2011, Wise reached maximum medical improvement and was entitled to a thirteen-percent impairment rating. Wise was also awarded a fifty-percent wage-loss-disability benefit by the Commission on February 17, 2012.
Because Wise continued to suffer from back pain, she was seen (at appellees’ expense) by a pain-management physician, Dr. Amir Qureshi, on March 10, 2011. On May 30, 2012, Dr. |2Qureshi reported that Wise claimed to have run out of narcotic pain medication a month prior despite having been given a prescription for narcotics that month. Dr. Qureshi also noted that Wise’s urine drug screen tested positive for methamphetamine and amphetamine, that she refused to sign for the drug-screen-confirmation test, and that she had confided in him that she had a history of methamphetamine use. Based on these findings, Dr. Qureshi concluded that Wise violated a narcotic-pain contract, and he released her from treatment.
On September 12, 2013, Wise sought and paid for medical treatment from Dr. Ah-mer Hussain, a family practitioner. On that date, Dr. Hussain reported that Wise had a 2009 work-related back injury that required surgery and that she was interested in pain management. Dr. Hussain prescribed hydrocodone and methocarbam-ol for Wise, advised her that he did not treat chronic pain-management patients, and referred her to a pain-management clinic at Sparks Regional Medical Center. She testified that the medications prescribed by Dr. Hussain helped but did not fully relieve her pain. When Wise sought benefits for additional pain-management treatment, appellees controverted her claim.
At the April 22, 2014 hearing before the administrative law judge (ALJ), Wise testified that she had never been pain free following her surgery. She said that she refused to sign for the drug-screen-confirmation test because she did not have the funds to pay for it. Wise, who had been imprisoned for methamphetamine-related charges from 2003 to 2007, exercised her Fifth Amendment right to remain silent when she was questioned about whether she had consumed methamphetamine before the positive urine drug screen. Finally, she testified that her condition worsened between her last visit with Dr. Qureshi in May 2012 and her visit with Dr. Hussain in September 2013.
|3On June 23, 2014, the ALJ issued an opinion finding that additional pain-management treatment was reasonable and necessary for the treatment of Wise’s com-pensable injury. The ALJ found that Wise was never free from pain following surgery for her compensable injury; she was receiving pain-management treatment with Dr. Qureshi until the positive urine screen; Wise could not pay for the confirmation urine test; and she stated that the pain-management treatment she received from Dr. Hussain helped.
In an opinion filed October 14, 2014, the Commission reversed and dismissed the ALJ’s opinion, finding that Wise failed to “prove by a preponderance of the evidence that continued prescription medication was reasonably necessary in connection with [her] compensable injury.” The Commission cited Dr. Qureshi’s May 30, 2012 report, focusing on the notations that she ran out of narcotics a month early; her urine tested positive for methamphetamine and amphetamine; and she had a history of methamphetamine use. The Commission found that Dr. Qureshi’s findings were credible and entitled to “significant probative weight.” The Commission then found that, while Wise sought treatment from Dr. Hussain in September 2013 and was referred to Sparks Pain Management, no treating physician had opined that such medication was reasonably necessary in connection with the compensable injury, no program of pain management had been arranged at Dr. Hussain’s clinic, and Wise had not pursued the pain-management referral that Dr. Hussain had made. The Commission also found that Wise did not ask for pain-management treatments, such as physical therapy or epidural steroid injections. In denying Wise’s claim, the Commission concluded:
[Wise] does not contend that she is entitled to a program of pain management at Sparks Regional Medical Center, as recommended at Hussain’s Family Practice. [Wise] instead |4contends that she is entitled to continued and unlimited payment of prescriptions of pain medication. No treating physician has opined that such treatment is reasonably necessary in connection with the July 31, 2009 compensable injury.
Wise timely appealed from the Commission’s decision.
At issue on appeal is Wise’s claim for additional medical treatment. “An employer shall promptly provide for an injured employee such medical ... services ... as may be reasonably necessary in connection with the injury received by the employee.” Goyne v. Crabtree Contracting Co., 2009 Ark. App. 200, at 2-3, 301 S.W.3d 16, 17; Ark.Code Ann. § 11-9-508(a) (Repl. 2012). The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Goyne, 2009 Ark. App. 200, at 3, 301 S.W.3d at 17. What constitutes reasonably necessary treatment is a question of fact for the Commission, which has the duty to use its expertise to determine the soundness of medical evidence and to translate it into findings of fact. Id., 301 S.W.3d at 17. A claimant may be entitled to ongoing medical treatment after the healing period has ended if the treatment is geared toward management of the compensable injury. Id., 301 S.W.3d at 17.
The Commission denied Wise’s claim. On appeal, we view the evidence in the light most favorable to the Commission’s decision and affirm that decision when it is supported by substantial evidence. Holloway v. Ray White Lumber Co., 337 Ark. 524, 528, 990 S.W.2d 526, 528-29 (1999). Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. at 529, 990 S.W.2d at 529. The Commission has the duty to weigh evidence, and if the evidence is conflicting, its resolution is a question of fact for the Commission. Id., 990 S.W.2d at 529. The Commission is not required 15to believe the testimony of the claimant or any other witness but may accept and translate into findings of fact only those portions of testimony it deems worthy of belief. Id., 990 S.W.2d at 529.
Wise argues that the Commission’s decision to deny her request for additional pain management is not based on substantial evidence because it is based on two material mistakes of fact. According to Wise, the Commission’s first material mistake of fact is its finding that she did not request pain management. She cites the Commission’s opinion that she “does not contend that she is entitled to receive pain management at Sparks Medical Center” and instead she “is only interested in continuing and unlimited payment of prescription medication.” Wise argues that these findings are erroneous and not supported by the evidence. We agree.
There is no question that Wise requested additional pain-management treatment — not just additional prescription medication. The pre-hearing order entered in this case stated that the issue to be litigated was “[w]hether [Wise] is entitled to additional pain-management treatment.” At the onset of the hearing, the ALJ stated, “There is one issue to be litigated here today, and that’s whether [Wise] is entitled to additional pain-management treatment.” And at the conclusion of the hearing, the ALJ inquired of Wise’s counsel, “If I am understanding correctly ... the only issue before the court is whether [Wise] is entitled to additional pain-management treatment.” Wise’s counsel responded, “Correct.” When asked if Wise was seeking pain-management treatment from a particular doctor, or just pain-management treatment in general, Wise’s counsel responded:
Pain-management treatment, Judge. And if the Commission chooses to pick somebody, that’s fine. But if the Commission simply says she’s entitled to pain-management | ^treatment, and [ap-pellees] are not offering anybody to provide that treatment, our position will then be that she is free to go pick whoever she wants to pick.
Finally, the ALJ’s opinion stated that the issue in the case was “[w]hether [Wise] is entitled to additional pain-management treatment.”
The record is clear. At all times Wise was requesting additional pain-manage ment treatment, which could encompass not only prescription medication, but also physical therapy, stimulation therapy, injections, and other possible treatments. At no time did she limit her request to additional pain medication. Therefore, the Commission’s finding that Wise did not request physical therapy or injections as part of pain-management treatment is erroneous. Furthermore, the Commission’s finding that Wise was only interested in “continuing and unlimited prescription medication” is also erroneous.
Wise contends that the Commission’s second material mistake of fact was to equate her discharge from Dr. Qureshi’s pain-management treatment for violation of the pain contract with the opinion that such treatment was no longer reasonable and necessary for her compensable injury. The record reflects that the parties originally agreed that Dr. Qureshi’s pain-management treatment was reasonable and necessary. Nowhere in Dr. Qureshi’s reports, including his May 30, 2012 report, did he state that Wise no longer needed pain-management treatment for her com-pensable injury or that he was discharging her from such treatment because it was not reasonably necessary. The only evidence in the record is that Dr. Qureshi discharged Wise because he believed that she had violated the pain contract. Assuming arguendo that methamphetamine and amphetamine were in her urine, there is no evidence on this record that 17those drugs had any bearing on her continued need for Dr. Qureshi’s pain-management treatment.
A review of the Commission’s opinion reveals its conclusion that Wise was a drug-seeking individual, and for that reason, was not entitled to additional pain medication. However, the Commission made two material mistakes of fact in reaching its conclusion. It concluded that Wise was seeking only additional prescription medication, when it is undisputed that what she requested was additional pain-management treatment. ■ It also concluded that Wise’s discharge from Dr. Qureshi’s treatment for violation of the pain contract was equivalent to his opinion that additional pain-management treatment was not reasonable and necessary, although Dr. Qureshi never issued that opinion. These factual findings are erroneous, are not supported by the record, and cannot constitute substantial evidence sufficient to support the denial of benefits to Wise. See Holloway, 337 Ark. at 529, 990 S.W.2d at 529. Therefore, we reverse and remand with instructions that the Commission make factual findings on the issue that was presented — whether additional pain-management treatment is reasonably necessary treatment for Wise’s compensable injury-
Reversed and remanded.
Harrison and Gruber, JJ., agree.
. Village Inn’s workers’ compensation insurance carrier is separate appellee Farmers Insurance Companies. | [
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PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT, No. 16CR-08-702]
PER CURIAM
hln a 2008 bench trial, Leroy Stevenson was found guilty of rape and sentenced as a habitual offender to 600 months’ imprisonment. After trial, Stevenson filed a motion for new trial, alleging that he had not been afforded effective assistance of counsel. The motion was denied. On appeal, the Arkansas Court of Appeals affirmed in part and remanded for a hearing on the motion for new trial. Stevenson v. State, 2010 Ark.App. 122, 2010 WL 475317. After the hearing was held and the remand was returned, the court of appeals also affirmed the order denying the motion for new trial. Stevenson v. State, 2011 Ark.App. 547, 2011 WL 4388293.
Subsequently, Stevenson timely filed in the trial court a pro se petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2008), again alleging that he was denied effective assistance of counsel at trial. The trial court dismissed the petition, and Stevenson appealed to this court. We dismissed the appeal on the ground that it was clear from the Rule 37.1 petition and the record that Stevenson had not met his burden of establishing that the judgment in his case should be vacated under the Rule. Stevenson v. State, 2013 Ark. 302, 2013 WL 3946082 (per curiam).
Now before us is Stevenson’s pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in the case. As grounds for relief, Stevenson contends that federal-case authority, in particular Trevino v. Thaler, — U.S. —, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013) and Sasser v. Hobbs, 735 F.3d 833 (8th Cir.2013), has established that Rule 37.1 proceedings are too narrow and do not afford indigent petitioners a meaningful review of claims of ineffective assistance of counsel. He seeks to expand coram-nobis proceedings to encompass such claims.
We first note that the petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Id. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the. most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, |s(2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
This court has previously addressed the argument made by Stevenson concerning whether federal precedent requires this court to expand coram-nobis proceedings to allow allegations of ineffective assistance of counsel to be addressed. We have specifically held that reliance on Trevino to support expansion of the remedy is misplaced. Washington v. State, 2014 Ark. 370, at ¶ 4, 439 S.W.3d 686, 689 (per curiam).
Trevino, which pertains to a state’s procedure to raise allegations of ineffective assistance of trial counsel on direct appeal, does not require this court to refashion the scope of a coram-nobis proceeding to allow for issuance of a writ of error coram nobis to permit a collateral challenge to a judgment of conviction based on a claim of ineffective assistance of counsel. Id.-, Jarrett v. State, 2014 Ark. 272, 2014 WL 2566093 (per curiam). Sasser also concerned the question of whether Arkansas, as a systematic matter, afforded petitioners a meaningful review of a claim of ineffective assistance of trial counsel on direct appeal. As with Trevino, Sasser does not require the scope of coram-nobis proceedings to be expanded to include claims of ineffective assistance of counsel.
Again, a coram-nobis proceeding is an exceedingly narrow remedy that requires a showing of facts that were extrinsic to the record that would have prevented rendition of the judgment at trial. Washington, 2014 Ark. 370, 439 S.W.3d 686. Petitioner’s claim that he has not been afforded an adequate opportunity to present claims of ineffective assistance of counsel is |4not within the scope of such a proceeding. See id.; Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852 (holding that claims of ineffective assistance of counsel are beyond the scope of a coram-nobis proceeding); Zulpo v. State, 2014 Ark. 14, 2014 WL 197837 (per curiam) (holding that the scope of a coram-nobis proceeding would not be expanded to include an argument outside the four categories recognized as grounds for the writ.). A petition for writ of error coram nobis is not a substitute for proceeding under Rule 37.1. State v. Tejeda-Acosta, 2013 Ark. 217, at ¶ 5, 427 S.W.3d 673, 676.
Petition denied. | [
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ROBIN F. WYNNE, Associate Justice
hAt issue in this appeal is Act 766 of 2013, known as the Arkansas Peer Review Fairness Act'(the Act). 'Act of Apr. 5, 2013, No. 766, 2013 Ark. Acts 2890 (codified at Ark.Code Ann. § 20-9-1301 (Repl. 2014)). Before the Pulaski County Circuit Court, the case was decided on competing motions for summary judgment. The hospitals appealed, and the defendants'cross-appealed. The Arkansas Hospital Association' and the Arkansas Medical Society have filed amicus curiae briefs. We reverse the circuit court’s denial of the dé-fendants’ motion for summary judgment as to whether this case presents a justiciable controversy, and'we dismiss the direct appeal.
The appellants, plaintiffs below, are three Arkansas corporations that operate private hospitals in the state (the- Hospitals)», In June 2014, the Hospitals filed a complaint for declaratory judgment in the Pulaski County Circuit Court seeking a judgment declaring the RAct unconstitutional under the Arkansas and United States Constitutions. The complaint named the following parties as defendants: the Attorney General in his official capacity; the Arkansas Department of Health; and Nathaniel Smith, MD, MPH, Director. The. defendants answered, denying that they were proper parties to this action, denying that the Act is ■ unconstitutional, and pleading various affirmative defenses. Eventually, the parties filed competing motions for summary judgment. No hearing was held, and the circuit court entered two separate- orders on April 24, ;2015. The circuit court denied paragraph four of the defendants’ motion for summary judgment, which stated as follows:
This Court should also enter summary judgment in favor of the state defendants because plaintiffs lack standing to file this declaratory judgment action. There is no justiciable controversy between plaintiffs and these state defendants, and plaintiffs’ declaratory judgment complaint is not ripe , for consideration.
Without elaboration,, the circuit court ruled that the Act is not unconstitutional for the following reasons: the Act is not pre-empted by federal law; the Act does not unconstitutionally treat the Hospitals differently from other healthcare entities; the Act does not restrict the Hospitals’ right to retain the attorney of their choice; the Act does not unconstitutionally interfere with the exclusive jurisdiction of Arkansas courts to regulate the practice' of law; and the Act is not unconstitutionally vague and ambiguous. The Hospitals filed a timely notice of appeal; the defendants filed a timely notice of cross-appeal.
la Cross-Appeal: Is this a proper ,. declaratory judgment • action?
Peer review is a process for "monitoring quality and improving Care within a healthcare institution.' See Ark.Code Ann. § 20-9-1302(a)(l). It was addressed by Congress in 1986 with the passage of the Health Care Quality Improvement Act (HCQIA), codified at 42" U.S.C. §§ 11101 et seq. Generally speaking, HCQIA provides immunity from liability for civil damages for those who participate in a professional-review action and meet the standards set forth in HCQIA (regarding the purpose of the action, notice and hearing, and procedures). See 42 U.S.C. § 11111. In 2013, our General Assembly passed the Act, -codified at Ark.Code Ann. §§ 20-9-1301 to -1308. Arkansas Code Annotated section 20-9-1302 provides as follows:
(a) The General Assembly finds that:
(1) The peer review process is well established .as the most important and effective means of monitoring quality and improving care within an institution;
(2)(A). Peer review is essential to preserving the highest standards of medica,! practice.
(B) However, peer review that is not conducted fairly results in harm to both patients and. physicians' by limiting access to care and patient choice; and
(3)It - is necessary to balance carefully the rights of patients who benefit ‘by peer review with the rights of those who may be harmed by improper peer review.
(b) The General Assembly intends that peer reyiew be conducted fairly for the benefit of the citizens of the State of Arkansas.,
The Act provides that “[professional review activity shall be conducted and professional review actions shall be taken in compliance with the requirements of the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101 et seq., and the additional requirements of [the Act].” Ark. Code Ann, § 20-9-1304(a). .
The defendants/cross-appellants argue that they are improper parties to this suit and that the Hospitals do not have standing to obtain declaratory relief. With regard to obtaining declaratory relief, the defendants argue that there is no justicia-ble controversy, there is no Uactual controversy between adverse parties, and the issues are not ripe. Because the arguments, under these two points overlap, we address them together.
Our declaratory-judgment statute provides that <£[a]ny person ... whose rights, status, or other, legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status, or other legal relations thereunder.” Ark. Code Ann. § 16-111-104 (Repl. 2006). While this section recognizes a party’s right to a declaratory judgment, a justicia-ble controversy is required. McGhee v. Arkansas State Bd. of Collection Agencies, 375 Ark. 52, 57-58, 289 S.W.3d 18, 23 (2008). Declaratory, relief will lie where: (1) there is a justiciable controversy; (2) it exists between parties with adverse interests; (3) those seeking relief have a legal interest in the. .controversy; and (4) the issues involved are ripe for decision. Id. On appeal; the question of whether there was a complete absence of a justiciable issue shall be reviewed de novo on the record of the circuit court. Id.
■ Here, the defendants argue that there is no justiciable controversy because there is no present danger or dilemma, citing the Hospitals’ references throughout their brief to hypothetical future events. Indeed, the Hospitals do not state that they are violating the Act, and they have not alleged a threat of imminent enforcement under the Act. A declaratory judgment “does not undertake to decide the legal effect of laws upon a state of facts which is future, contingent or uncertain.” McLane S., Inc. v. Arkansas Tobacco Control Bd., 2010 Ark. 498, at 28-29, 375 S.W.3d 628, 647. Similarly, we have stated that
[t]he Declaratory Judgment Statute is applicable only where there is a present actual controversy,, and all interested persons are made parties, and only where justiciable issues are presented. It does not undertake to decide the legal effect of laws upon a state of facts which is future, contingent or uncertain.
\a McCutchen v. City of Fort Smith, 2012 Ark. 452, at 15, 425 S.W.3d 671, 681 (quoting Cummings v. City of Fayetteville, 294 Ark. 151, 154-55, 741 S.W.2d 638, 639-40 (1987)). Here, the Hospitals argue that the Act imposes a present and ongoing injury to them in that it creates new standards with which they must comply during the peer-review process. We disagree that a justiciable controversy has been presented for our review. See Jegley v. Picado, 349 Ark. 600, 622, 80 S.W.3d 332, 343 (2002) (finding a justiciable controversy regarding constitutionality of the sodomy statute where the plaintiffs admitted to violating the statute and the actions of state prosecutors in declining to prosecute “could effectively, bar shut the courthouse doors and protect the sodomy statute from constitutional challenge”). After carefully considering the parties’ arguments on this point,, we conclude that the requirement of a justiciable controversy is not present in this case.
In sum, appellants ask this court to determine whether the Act, which presents an entire statutory scheme; is unconstitutional without any present controversy to examine. The only evidence before the circuit court on the cross-motions for summary judgment was an affidavit of the Director of the Department of Health and a portion of the Hospitals’ responses to appellees’ first set of requests for admissions. Without a sufficient factual record to show an actual, present controversy, this court cannot opine on the merits of the constitutional arguments raised in the Hospitals’ declaratory-judgment suit. Because a justiciable controversy is a necessary element of a declaratory-judgment suit and that element is lacking in this case, it is unnecessary to address the other requirements for obtaining declaratory relief. Similarly, we do not reach the issues presented on direct appeal. ■
■ Reversed on cross-appeal; direct appeal dismissed.
Danielson and Wood, JJ., dissent.
. Alternatively, appellants sought a declaration regarding, the proper, construction, of the Act; however, the circuit court did not rule on this claim and appellants expressly abandoned any pending but unresolved claims in their notice of appeal. See Ark. R.- App. P.-Civ. 3(e)(vi) (2015). . ;
. During this case, Attorney General Dustin McDaniel was replaced by'bur current attorney general, Leslie Rutledge. | [
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ROBERT GLADWIN, Judge.
This is the second appeal from a declaratory judgment rendered by the Jackson County Circuit Court concerning whether a will that was not admitted to probate could be used as evidence of a devise of property under Ark.Code Ann. § 28-40-104 (Supp.2007). The circuit court held that the will could not be used because appellant Brenda Bryant Osborn had filed an affidavit for collection of small estate and attached the will to that affidavit. Osborn and the other appellants raise two points on appeal challenging that ruling. We reverse.
The facts are largely undisputed. Lacy Bryant died testate on June 15, 1994, sur vived by his widow, Naomi Bryant, and eight surviving children. In his will, Bryant left his real property — a twenty-acre tract upon which his home was situated and a sixty-acre tract — to his wife for the duration of her life and then both tracts to Osborn should she choose to pay $200 per acre to Bryant’s other heirs for the sixty-acre tract. The will further instructed that, should Osborn elect not to purchase the property, it would be divided equally between Bryant’s children, per stirpes.
Following Bryant’s death, Osborn filed an affidavit for collection of small estate with the Jackson County Circuit Court. The affidavit also attached Bryant’s will. The will appears to be properly executed by Bryant and three witnesses. Two of the attesting witnesses also executed a “Proof of Will.” Finally, a “Notice of Probate” and proof of publication of that notice were also filed on October 14, 1994.
On June 21, 1995, Osborn executed an “Administrator’s Deed” to herself. The deed conveyed the property of Lacy Bryant pursuant to the terms of the will, reflecting that Bryant’s widow would retain a life estate and the terms by which Osborn could purchase the property upon her mother’s death. The deed was duly recorded. Naomi Bryant lived on the property until her death on November 1, 2004.
On December 1, 2004, appellees filed the present declaratory-judgment action against Osborn and the other appellants, heirs who had accepted her payments, seeking to have the court declare that Lacy Bryant’s will and the administrator’s deed were invalid, and that Lacy Bryant’s property should pass in accordance with the laws of intestacy. The complaint also sought partition of the real estate in the event appellees were successful with their petition for declaratory judgment. Appellants denied the allegations and asserted that Osborn owned the property pursuant to the administrator’s deed.
Arguments Made in the Circuit Court
At trial, appellees argued that the will and deed were nullities under section 28-40-104 because the will was never probated. They also asserted that the exceptions in section 28-40-104 do not apply because there was a probate proceeding — the affidavit of collection of small estate. Appel-lees also cited the five-year statute of limitations for probating a will found in section 28-40-103 as a further reason why the deed could not be used as evidence of Osborn’s title to the property. Finally, appellees argued that, because there was no administration of Lacy Bryant’s estate, Osborn lacked authority to execute the administrator’s deed to herself.
In response, appellants argued that the small estate procedure was excepted from the reach of section 28-40-104 by the statute’s plain language. Appellants also asserted that section 28-41-102(d) authorized Osborn to execute a deed to herself. At trial, appellants cited the supreme court’s decision in Smith v. Ward, 278 Ark. 62, 643 S.W.2d 549 (1982), for the proposition that section 28-40-104(b) allows a will not admitted to probate to be effective as evidence of a devise if the two conditions listed in that section are met.
The Circuit Comt’s Ruling
On June 12, 2006, the circuit court issued a written decision finding that Lacy Bryant’s will was never admitted to probate but, nevertheless, could not be used as evidence of a devise because Brenda Osborn’s filing of an affidavit of small estates was “a probate proceeding concerning the succession ... of the estate” under Ark.Code Ann. § 28-40-104(b)(1). The court noted that the small estate procedure was “not intended to provide a means to avoid probate where there is an elevated likelihood of conflict among heirs, there are out-of-state heirs not likely to see the published notice, and the will provides conditions precedent to the transfer of property.” The court concluded that Lacy Bryant effectively died intestate. This court dismissed Osborn’s appeal in Osborn I for lack of a final order. Following remand, the circuit court entered a partition decree finding that the property could not be divided in kind and ordering it sold. This appeal followed.
Arguments on Appeal
Appellants raise two points on appeal: (1) that the distribution of Lacy Bryant’s estate without administration was properly accomplished and the “Administrator’s Deed” should be recognized as a valid conveyance of the real property, and (2) that the circuit court improperly applied Arkansas Code Annotated section 28^40-104 to the facts of this case.
This case involves the interpretation of section 28-40-104, which provides as follows:
(a) No will shall be effectual for the purpose of proving title to or the right to the possession of any real or personal property disposed of by the will until it has been admitted to probate.
(b) Except as provided in § 28-41-101, to be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of probate by the circuit court, except that a duly executed and unrevoked will which has not been probated may be admitted as evidence of a devise if:
(1) No proceeding in circuit court concerning the succession or administration of the estate has occurred; and
(2) Either the devisee or his or her successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent’s title during the time period for testacy proceedings.
(c)The provisions of subsections (b) and (c) of this section shall be supplemental to existing laws relating to the time limit for probate of wills, and the effect of unprobated wills, and shall not be construed to repeal § 28-40-103 and subsection (a) of this section or any other law not in direct conflict herewith.
We review issues of statutory interpretation de novo, because it is for this court to determine the meaning of a statute. See, e.g., Great Lakes Chemical Corp. v. Bruner, 368 Ark. 74, 243 S.W.3d 285 (2006). Regarding our standard of review for statutory construction, our supreme court has said:
The basic rule of statutory construction is to give effect to the intent of the legislature. Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible.
Id. at 82, 243 S.W.3d at 291 (citations omitted).
Appellees and the circuit court focused on the fact that section 28-40-104(b) provides that, to be effective as evidence of a transfer of property, a will must be declared valid by a court. Further, they also questioned whether appellants could meet the requirements of section 28^0-104(b)(1), namely, that there have not been any proceedings concerning the “succession or administration of the estate.” However, the circuit court erred in its interpretation because it failed to give effect to subsection (b)’s provision that exempts small-estate proceedings from the requirement that, to be evidence of a property transfer, a will must be declared valid by a court. Section 28-40-104(b) provides: “Except as provided in § 28-4-1-101 [the small-estate procedure], to be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of probate by the circuit court....” (Emphasis added.) As noted above, we construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. By excepting small-estate proceedings from the reach of section 28-40-104(b), the legislature intended that a will that had not been admitted to probate could still be used as evidence of a devise of real property in cases where the small-estate procedure is used without meeting the conditions listed in that section. The two conditions are relevant in cases where the small-estate procedure is not used. There is no argument that Osborn did not comply with the procedures for collection of small estates.
This is the first case construing this alternate exception language in subsection (b), and we hold that the circuit court erred in its application of the law to the undisputed facts. A plain reading of the statute, giving the words their ordinary and plain meaning, leaves us with no other reasonable conclusion. This unique situation appears to be just the type of scenario that the statute was designed to remedy.
Reversed.
PITTMAN and GLOVER, JJ, agree.
. We dismissed the first for lack of a final order. Osborn v. Bryant, CA06-1131, 2007 WL 1429917 (Ark.App. May 16, 2007) (Osborn I).
. In addition to Osborn, Bryant's other surviving children are appellant Opal GarH, appellant Altha P. Hickman, appellant Gene Bryant, appellee Billy Bryant, appellee Betty Hamby, appellee Dortha Whitner, and appel-lee Norma Knight. Appellants Norma Sexton, Linda Bliss, Rita Gilliam, Billy Ray Bryant, and Beverly Beeman are children of Biyant's deceased child O.M. Bryant, as is appellee Mabel Kimberling. | [
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Per Curiam.
The court stays the lower court from proceeding further in this election contest case until this court can consider Mr. James F. Valley’s interlocutory appeal regarding the trial judge’s ruling on the disqualification of attorney Charles Halbert from representing Mr. Valley. We also grant the requests of Mr. Valley, the Phillips County Election Commission, and the Phillips County Circuit Clerk to expedite this appeal. If Mr. Halbert is determined by this court to have been improperly disqualified, other issues clearly will arise regarding the efficacy of any proceedings that took place after his disqualification. A writ of certiorari is issued, directing the court reporter and the clerk to complete the record required for the disposition of Mr. Valley’s appeal. | [
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Per Curiam.
In 1997, Kingrale Collins was found guilty by a jury of capital murder and sentenced to death. We affirmed. Collins v. State, 338 Ark. 1, 991 S.W.2d 541 (1999).
Now before us is a motion filed by attorney Chris A. Tarver who asks to be relieved as counsel for Collins and for other counsel to be appointed to represent him. Although Tarver states that Collins is at a “critical stage of his appeal,” no record of any proceeding in circuit court accompanied the motion, and there is no proceeding currently pending in this court. So that it can be ascertained whether this court has jurisdiction to relieve counsel and appoint counsel at this juncture, we direct that Tarver file an amended motion clarifying the status of Mr. Collins’s criminal case. If this court’s jurisdiction is based on a proceeding in circuit court, at least a certified partial record of that court’s proceedings should accompany the amended motion.
Amended motion requested. | [
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Annabelle Clinton Imber, Justice.
Appellant Roger Dale Barrett was convicted of capital murder and sentenced to life in prison without the possibility of parole. Barrett now appeals and argues five points for reversal. Specifically, he contends that: (1) there was insufficient evidence upon which to base a conviction for the offense of capital murder; (2) the trial court erred in admitting a certain firearm and ammunition into evidence; (3) the trial court erred in admitting evidence of appellant’s prior alcohol use and subsequent drug use; (4) the trial court erred in admitting evidence of appellant’s prior acts of violence towards the victim; and, (5) the trial court erred in admitting confidential communications between appellant and his wife. We find no reversible error and affirm the judgment of conviction.
While married to Nola Barrett, appellant had been engaged in an extramartial affair with Eunice “Yogi” Bradley for approximately two years. On August 21, 2000, at about 9:00 p.m., Yogi was in a single-vehicle accident as a result of high-centering her car on the lip of a ditch in front of a residential home. Yogi had been drinking, and after safely getting out of the car, she asked a local resident to give her a ride to the Barrett residence.
When she arrived at appellant’s home, Nola answered the door. Yogi asked Nola for a ride to her camper-home. At first Nola refused to take Yogi home, so Yogi went to the backyard and climbed into appellant’s tow truck. Eventually, Nola changed her mind and took Yogi home. In investigating the car accident, Constable A.L. Hollingsworth went to the Barrett residence looking for Y ogi. Nola answered the door and explained that Y ogi was at her camper-home. At approximately 12:00 a.m. on August 22, Constable Hollingsworth went to Yogi’s camper-home and talked with her.
Meanwhile, Nola called her friend, Deborah Steenblock, and asked her to come over and visit. Steenblock and her two children went to visit Nola and stayed at the house until appellant returned home at midnight carrying a partially consumed bottle of tequila. Steenblock and her children left shortly thereafter.
It was at this point that Yogi arrived back at the Barrett residence riding a horse. Yogi was upset that Nola had told the police about her showing up at the house drunk on the previous evening. Appellant took sides with Yogi, and the two struck up a friendly conversation. Nola became afraid that her husband and Yogi were going to rekindle their loving relationship. She decided that she wanted to leave, and at about 1:30 a.m., called the Steenblocks again to ask if she could stay the night at their house. When Deborah Steenblock’s daughter, Ashley, arrived to pick Nola up and take her back to their house, Nola was hiding in a ditch along the road leading to the Barrett residence. That same morning at about 8:00 a.m., appellant went over to the Steenblock household looking for Nola. He went inside and told Steenblock that he had accidentally shot Yogi. Steenblock suggested that he take her to Yogi because she knew CPR and might be able to save her. Appellant replied that Yogi was already dead. He then took both Nola and Steenblock back to the house where Yogi had been shot.
When they arrived, Yogi was lying dead on the living room couch, slightly slumped over, with a gunshot wound to her chest. Appellant stripped the covers off the sofa cushions and put them in the wash. Then, he took Steenblock back to her house. On the way, appellant appeared to throw something over the roof of his van and into the adjacent brush. Later during the drive, he pulled over to the side of the road beside a pond and got out of the van. According to Steenblock, “he said that’s where he tossed the pistol.” Subsequently, appellant took Yogi’s body out into a field and set it on fire. He later met some friends back at his house where they all smoked marijuana.
The fire spread from Yogi’s body, culminating in a three-acre grass fire. The local fire department was notified and responded. The discovery of the body led to an investigation by the Benton County Sheriffs Office. Investigators determined that the fire originated at the body. When appellant was questioned to determine whether he knew anything about Yogi’s disappearance or death, he told the investigator the last time he had seen her was at 6:00 p.m. on August 21, 2000. After further investigation, appellant was arrested and charged with capital murder in the death of Eunice “Yogi” Bradley. He was found guilty of capital murder and sentenced to life in prison without the possibility of parole. It is from this capital-murder conviction that appellant now appeals.
Sufficiency of the Evidence
Appellant first argues that there was insufficient evidence to support a conviction for the offense of capital murder. His specific contention is that the evidence elicited at trial was insufficient to show that he acted with premeditated or deliberated purpose in killing Yogi. We note that appellant properly preserved a challenge to the sufficiency of the evidence on appeal by moving for a directed verdict at the close of the State’s case and again at the close of all the evidence. See Ark. R. Crim. P. 33.1 (2003).
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Id. Moreover, the credibility of witnesses is an issue for the jury and not for this court. Cobb v. State, 340 Ark. 240, 12 S.W.3d 395 (2000). The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s. Cobb v. State, supra. Additionally, a defendant’s improbable explanation of suspicious circumstances may be admissible as proof of guilt. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001); Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993).
In Arkansas, a person commits capital murder if “[w]ith premeditated and deliberate purpose of causing the death of another person, he causes the death of any person.” Ark. Code Ann. § 5-10-101(a)(4) (Repl. 1997). A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001). The premeditation necessary to be convicted of capital murder in Arkansas need not exist for a particular length of time. Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000). Indeed, premeditation may be formed in an instant and is rarely capable of proof by direct evidence, but must usually be inferred from the circumstances of the crime. Id. Similarly, premeditation and deliberation may be inferred from the type and character of the weapon, the manner in which the weapon was used, the nature, extent, and location of the wounds, and the accused’s conduct. Id.
Contrary to appellant’s assertion, there is sufficient evidence of premeditation and deliberation. Dr. Frank Peretti, a forensic pathologist with the Arkansas State Crime Laboratory, performed the autopsy on Yogi. When he received the body, it was almost completely charred except for a part of Yogi’s forehead and the bridge of her nose. Fie observed one contusion on her forehead and another large contusion behind her ear. There was a 1/4 inch scrape on her nose. Dr. Peretti found a .22 caliber bullet that punctured through Yogi’s lung, and he ascertained that it entered from the front of her chest and in a downward direction. Dr. Peretti determined that Y ogi died as a result of a gunshot wound to the chest with blunt force head trauma. He also opined that after the gunshot, Yogi could have been alive for five to ten minutes.
Chief Scott Van Hook of the Highfill Volunteer Fire Department discovered Yogi’s body when he was responding to the grass fire. Chief Van Hook opined that the burning body was the ignition source for the fire. David Dwight, an arson investigator with the Benton County Sheriffs Office, agreed with Van Hook’s assessment but added that the body was ignited with an unknown accelerant.
In this case, the State presented evidence that appellant tried to conceal Yogi’s death from the authorities. He told Mike Sydoriak, an investigator with the Benton County Sheriffs Office, that he had last seen Yogi on August 21, 2000, at 6 p.m. when she came to his house for gas money. Appellant went to great lengths to cover up the crime. He washed the soiled sofa cushions, cleaned the inside of his van, and attempted to dispose of Yogi’s body by burning it in a field. He also successfully concealed the murder weapon. Although Deborah Steenblock testified at trial that appellant told her he “tossed” the pistol into a nearby pond, the murder weapon was never found. Investigators did, however, find a hair in the back open section of appellant’s van that was matched through DNA to the victim.
Other evidence also linked appellant to the murder. Ashley Steenblock testified that on the night of the murder, when Nola called after midnight, she heard a lot of commotion that sounded like an argument in the background. The following day, appellant told Nola and Steenblock that he had accidentally shot Yogi. He also told a friend, Marvin Wise, that he accidentally shot Yogi when he tripped over a coffee table. Additionally, Shannon Long testified that she overheard appellant say he shot Yogi. Both Steenblock and Nola witnessed Yogi’s dead body on the couch at the Barrett residence. The evidence also demonstrates that appellant acted in concert with Nola to clean up the couch where Yogi had been shot. Valery Stout testified that on August 22, 2000, at about 7:15 a.m., she saw appellant driving his van near the area where Yogi’s burned body was found. In addition, Yogi’s daughter testified that appellant once struck her mother in the face with enough force to cause severe bruising and swelling on the side of her head.
The evidence is uncontradicted that appellant was the last person to be with Yogi and see her alive. Yogi was killed with a gun by a single shot to the chest. She also sustained blunt-force trauma to the head contemporaneous with the shooting. Furthermore, as we have already noted, appellant went to great lengths to conceal the murder. Efforts to conceal a crime, as well as lying to friends and police about one’s involvement in a killing, can be considered as evidence of consciousness of guilt. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001). In the instant case, considering the proof as to the type and character of the weapon, the manner in which the weapon was used, the nature, extent, and location of the wounds, and appellant’s conduct, we must conclude1 that there was sufficient evidence to support the capital-murder conviction. Accordingly, the circuit court did not err in denying the motions for directed verdict.
Relevance of Firearm and Ammunition
Prior to trial the State entered into a stipulation whereby it agreed that no reference to a certain .22 caliber revolver would be made at trial. The State did not mention the revolver; however, it did offer into evidence a .22 cqjiber pistol, a .22 caliber rifle, and some .22 caliber ammunition, albeit over appellant’s objection. On appeal, appellant makes a two-prong argument. First, he contends that under Ark. R. Evid. 402, the .22 caliber rifle and the .22 caliber ammunition seized from his house were irrelevant to the crime of capital murder. Second, appellant cites Ark. R. Evid. 403 in support of his claim that the evidence should have been excluded. The State maintains that the rifle was relevant to show that appellant actively covered up the murder. Essentially, the State contends that because investigators were unable to find the actual murder weapon in appellant’s house, the fact that they were able to find other .22 caliber weapons goes to show that appellant was attempting to conceal evidence of the crime.
Rule 401 of the Arkansas Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ark. R. Evid. 401 (2003). Rule 402 states that “[ejvidence which is not relevant is not admissible.” Ark. R. Evid. 402 (2003). A trial court’s ruling on relevancy will not be disturbed absent an abuse of discretion. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). For evidence to be relevant, it is not required that the evidence prove the entire case; rather, all that is required is that it have “any tendency” to make any fact that is of consequence to the determination of the action more or less probable. Id.
The test of admissibility of evidence over an objection for irrelevancy is whether the fact offered into proof affords a basis for rational inference of the fact to be proved. Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 (1976). It is sufficient if the fact may become relevant in connection with other facts, or if it forms a link in the chain of evidence necessary to support a party’s contention. Id.
The State contends that the relevancy of the .22 caliber rifle is tied to the issue of whether appellant attempted to cover up the murder. The State’s theory was that appellant disposed of the .22 caliber murder weapon in an attempt to cover up his crime. We disagree. The admission of the .22 caliber rifle found at appellant’s home does not provide a basis to rationally infer that he disposed of the actual murder weapon. The State suggests that in order to prove a cover up it is relevant to focus on what was not found at the murder location. We agree that the State properly introduced evidence that the police searched the house and were unable to find the murder weapon. To prove that their investigation was thorough, the State introduced without objection the testimony of Ronald Andrejack, a firearms examiner with the Arkansas State Crime Laboratory. Andrejack testified that neither the .22 caliber rifle nor the .22 caliber pistol found at the home fired the bullet found in Yogi’s body. While it is true that investigators were unable to locate the .22 caliber revolver that appellant used to shoot Yogi, the .22 caliber rifle formed no link in the chain of evidence necessary to support the State’s cover-up theory. See Grigsby v. State, supra. Accordingly, the circuit court erred in admitting the .22 caliber rifle.
Even when a trial court errs in admitting evidence, we have held that when the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm the conviction. See Cobb v. State, 340 Ark. 240, 12 S.W.3d 395 (2000) (holding any error in admitting allegedly irrelevant testimony that the defendant loved music was harmless in capital murder prosecution where the defendant admitted killing the victim and evidence supported the conviction). To determine if the error is slight, we can look to see if the defendant was prejudiced. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988) (holding the fact that defendant passed the time watching sex and horror movies was irrelevant, but the error was harmless as the prejudicial effect was minimal and the evidence of guilt so overwhelming).
We have already concluded that there was sufficient evidence to support a capital-murder conviction. Appellant was the last person seen with Yogi alive. She was shot in his home. According to the medical examiner, she died as a result of a gunshot wound to the chest with blunt force head trauma. Appellant was seen near the location where Yogi’s body had been abandoned and burned shortly before the fire department discovered her remains. Lastly, appellant admitted to killing Yogi. Thus, in this case, where appellant has admitted to killing the victim and it has been established by sufficient evidence that he acted with premeditation and deliberation, any prejudice that may have resulted from admitting the .22 caliber rifle was minimal. See, e.g., Cobb v. State, supra. Furthermore, the firearms examiner was permitted to testify without objection that neither the .22 caliber rifle nor the .22 caliber pistol found at the home fired the bullet found in Y ogi’s body. The jury was therefore sufficiently alerted to the fact that the .22 caliber rifle was not the murder weapon. Under these circumstances, we conclude that the trial court’s error in admitting the .22 caliber rifle was slight.
In short, any prejudice resulting from the trial court’s error was minimal and, in light of the above noted testimony by the firearms examiner, the error was slight. In other words, the evidence of appellant’s guilt is overwhelming, and the error is slight. We therefore declare that the circuit court’s error in admitting the .22 caliber rifle was harmless.
Appellant also attacks the admission of the .22 caliber rifle by arguing that Rule 403 should have operated to exclude the evidence. However, the record reflects that appellant failed to make a Rule 403 argument at trial; instead, he hinged his entire argument to the circuit court on the relevancy of the evidence. This court does not address arguments made for the first time on appeal. Elser v. State, 353 Ark. 143, 114 S.W.3d 168 (2003).
In his last argument under this point, appellant maintains that the introduction of the .22 caliber ammunition seized from his house was irrelevant. We disagree. It is undisputed that Yogi was shot with a .22 caliber bullet. As such, the fact that appellant owned .22 caliber ammunition would help prove that he possessed the means to kill Yogi. We affirm the circuit court’s ruling on the admissibility of the ammunition.
Admission of Prior Drug and Alcohol Use
For his third assignment of error, appellant asserts that the trial court erred in admitting evidence of his prior alcohol use and subsequent drug use. Prior to trial, the circuit court granted the State’s motion in limine under Ark. R. Evid. 404 seeking the admissibility of certain testimony regarding appellant’s prior use of alcohol, subsequent use of marijuana, and the fact that appellant was under the influence of methamphetamine on the day prior to the murder.
A circuit court’s ruling on the admissibility of evidence under Rule 404 will not be reversed absent a manifest abuse of discretion. Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002). Arkansas Rule of Evidence 404(b) states:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Ark. R. Evid. 404(b) (2003). In Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997), this court described the application of Rule 404:
[U]nder this rule, evidence of other crimes, wrongs, or acts may be admissible to prove motive. We have said that, when the purpose of evidence is to show motive, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996); Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). The State is entitled to produce evidence showing circumstances which explain the act, show a motive for killing, or illustrate the accused’s state of mind. Echols v. State, supra; Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992).
Lee at 702, 942 S.W.2d at 235-236. In Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000), we held that evidence of drug use and drug dealing was clearly part of the res gestae of the crime where it was intermingled and contemporaneous with the commission of the crimes charged.
At trial, Ed Easley testified about appellant’s physical state on the afternoon of August 21, only hours before Yogi’s death. Easley testified that in the past he and appellant had used drugs together, including methamphetamine and marijuana. Easley stated that he had a brief conversation with appellant after work around 2:00 p.m. Easley spoke with appellant for five minutes and, during that time, noticed that appellant appeared extremely tired to the point that Easley recommended that he “needed sleep and rest for his own welfare.”
Valery Stout testified that she smoked marijuana with appellant and Nola on the morning of Tuesday, August 22, 2000, when Yogi’s body was discovered in the field. This testimony was evidence of appellant’s state of mind immediately following the removal of the victim’s body from the premises. Marvin Wise also testified that when he went to visit appellant in jail, appellant admitted that he accidentally shot the victim because he was “cranked up” and “doped up.”
The evidence was not offered to show that appellant acted in conformity therewith; instead, it was offered to show his mental state in connection with the .murder. In addition, as we held in Gaines v. State, supra, drug and alcohol use can be considered part of the res gestae, and, therefore, is not rendered inadmissible by Rule 404. We conclude that the circuit court did not abuse its discretion in allowing this testimony into evidence at trial.
Prior Acts of Violence Towards the Victim
For his fourth point on appeal, appellant claims the trial court erred in admitting evidence that on a previous occasion he physically abused Yogi. In a motion in limine filed prior to trial, the State argued that the testimony was admissible as proof of appellant’s state of mind under Rule 404(b) and as a present sense impression, a then-existing physical condition, or an excited utterance pursuant to Ark. R. Evid. 803. Appellant countered by pointing out that the evidence was not subject to the hearsay exceptions in Rule 803, and, furthermore, that the evidence should be excluded under Rules 402 and 403. At a pretrial hearing on the matter, the trial court stated that the challenged evidence would be admitted if the State laid a proper foundation. The trial court reminded counsel that a record needed to be made at trial.
At trial, the testimony was proffered and admitted over appellant’s objection. Yogi’s daughter testified that about a year and half before Yogi’s death, she was unable to find her mother after her mother and appellant got into an argument. She found a note written by Y ogi and then searched for her. She testified that when she found her mother, she noticed a bruise on the side of her head. Yogi then proceeded to tell her daughter that appellant had hit her.
A. Rule 803
Trial courts have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent an abuse of'discretion. Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003). In order for the evidence to be excluded as hearsay, it must be a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ark. Rule Evid. 801(c) (2003). In this case, as proof that appellant deliberately hit Yogi on the day of the murder, the State presented her daughter’s testimony about a prior occasion when Yogi made a statement that appellant had hit her in the head. This out-of-court statement was clearly hearsay.
While evidence may be considered hearsay under Rule 801(c), Rule 803 provides numerous exceptions to the hearsay rule. Under Rule 803(1), “a statement describing or explaining an event or condition made while the declarant was perceiving the event op condition, or immediately thereafter” is excluded from the hearsay rule as a present sense impression. Ark. R. Evid. 803(1) (2003). The hearsay statement at issue — “Appellant had [hit me]” — does not come within the present-sense-impression exception. That exception is not applicable where the statement is given some time after the event, and not while the event occurred or immediately thereafter. See Halfacre v. State, 292 Ark. 331, 731 S.W.2d 179 (1987).
A second exception to the hearsay rule is Rule 803(3):
A statement is excluded from the hearsay rule if it is a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
Ark. R. Evid. 803(3) (2003). Once again, this section is not applicable. The hearsay at issue was not a statement of the declarant’s then existing state of mind, emotion, or physical condition.
A statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is also excluded from the hearsay rule as an excited utterance. Ark. R. Evid. 803(2) (2003). Factors to consider when determining if a statement falls under the excited-utterance exception to the hearsay rule are: (1) the lapse of time, (2) the age of the declarant, (3) the physical and mental condition of the declarant, (4) the characteristics of the event, and (5) the subject matter of the statement. Peterson v. State, 349 Ark. 195, 76 S.W.3d 845 (2002). Additionally, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation. Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002).
We analyzed a similar factual scenario in Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). There, Fudge was convicted of capital murder for the death of his wife, Kimberly Fudge. On appeal, he argued that the trial court had improperly admitted hearsay evidence. Id. The challenged evidence was testimony by two witnesses who stated Kimberly told them that Fudge had beaten her, choked her, and forced her to have sex. Id. She made these statements to the witnesses “anywhere from one to several hours” after the events occurred. Id. One of the witnesses testified that Kimberly appeared nervous and scared while making the statements. The trial court admitted the testimony pursuant to Rule 803(2), and we held that the trial court did not abuse its discretion. Id.
In the instant case, the testimony reveals that at the time Yogi made the statement to her daughter, she was crying and drinking. Moreover, she appeared very upset, and she had a bruise on the side of her head that was “swollen very bad.” Under these circumstances, as in Fudge v. State, we cannot say that the lower court abused its discretion in allowing similar evidence of prior violence at the hands of appellant.
B. Rule 404(b)
Appellant also argues that the evidence should have been excluded under Ark. R. Evid. 404(b). Additionally, he contends that because the prior incident occurred several months before Yogi’s death, it was irrelevant and in violation of Rule 403. Once again, a trial court’s ruling on the admissibility of evidence will not be reversed absent an abuse of discretion. Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003).
With respect to Rule 404(b), we believe the case of Russey v. State, 322 Ark. 786, 912 S.W.2d 420 (1995), to be particularly instructive. In that case the defendant was charged with murdering his wife by shooting her with a shotgun. Id. This court allowed testimony that five weeks prior to his wife’s death, the police were summoned to investigate a domestic violence incident between the defendant and his wife involving the same shotgun. Id. We held that while evidence demonstrating mere character is prohibited, Rule 404(b) allows evidence that is probative of other purposes, including intent or the absence of mistake or accident. Id. Likewise, this case involves a prior incident that was substantially similar to the cause of Yogi’s death, and probative to show intent or the absence of mistake or accident.
This court has further made it clear that if the introduction of testimony of other crimes, wrongs, or acts is independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible with a proper cautionary instruction by the court. Smith v. State, 351 Ark. 468, 95 S.W.3d 801(2003). Thus, if the evidence of another crime, wrong, or act is relevant to show that the offense of which the appellant is accused actually occurred, and is not introduced merely to prove bad character, it will not be excluded. Id. Stated another way, the test for establishing motive, intent, or plan as a Rule 404(b) exception is whether the evidence of the other act has independent relevance. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000); Haire v. State, 340 Ark. 11, 8 S.W.3d 468 (2000); see also Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002) (prior bad acts independently relevant to prove motive in not contacting police); Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001) (prior crime independently relevant as proof of intent to commit charged offenses); Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000) (escape conviction was not used to show appellant’s character, but was independently relevant to show his consciousness of guilt of the rape offenses).
Here, the State proffered evidence that Yogi had told others about appellant causing a bruise and swelling to her face during a quarrel. As noted earlier, Yogi’s daughter testified that approximately a year and a half before Yogi’s murder, she saw her mother with a bruise and swelling on the side of her head. At the time, Yogi appeared upset and said that appellant had caused the bruise. At trial, the State was prepared to offer the testimony of Pam Easley to corroborate this account of Yogi’s earlier injury and that appellant admitted to Easley he caused that injury. The trial court, however, excluded Easley’s testimony on the ground that it was cumulative.
Given the fact that Yogi sustained injuries during her murder that were similar to those she had previously suffered at the hands of appellant, it was well within the discretion of the trial court to allow the evidence of appellant’s prior acts of violence. Although the injuries inflicted by appellant occurred approximately a year and a half prior to Yogi’s death, the injuries were consistent with those she suffered contemporaneously with the gunshot wound to her chest that appellant claimed was accidental. We therefore affirm the circuit court’s ruling on this point.
Husband-Wife Privilege
For his final point on appeal, appellant contends that the trial court erred in admitting confidential information between him and his wife. In a pretrial motion, appellant submitted that statements made by appellant to his wife Nola were privileged pursuant to Ark. R. Evid. 504. The State argued that because the statements were made in the presence of third parties, they were admissible under Ark. R. Evid. 510. The general rule is set forth in subsection (b) of Rule 504 wherein it states “[a]n accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.” Ark. R. Evid. 504(b) (2003). Under this Rule, however, spousal communication is privileged only if it is not intended to be disclosed to any other person. David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985); Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982). Moreover, Ark. R. Evid. 510 provides that if the same information protected by the husband-wife privilege is disclosed to a third person, the privilege is waived. Ark. R. Evid. 510 (2003); see, e.g., Dansby v. State, 338 Ark. 697, 1 S.W.3d 403 (1999); Halfacre v. State, 292 Ark. 331, 731 S.W.2d 179 (1987).
In this case, appellant sought to keep his wife from testifying that he admitted to accidentally shooting Yogi. Other witnesses testified that appellant told them the same information. In fact, appellant’s wife stated she specifically heard him tell Steenblock that he shot Yogi. Thus, appellant’s argument is not supported by Ark. R. Evid. 510, which plainly states that the communication of any significant part of the privileged matter to someone other than the spouse effectively waives the privilege. Dansby, supra. The rule grants no exceptions or qualifications other than when the disclosure is itself privileged, such as a disclosure covered by lawyer-client privilege. Dansby, supra. Furthermore, Rule 510 does not state that the waiver depends upon the disclosure being heard by a number of people; nor does it state that the waiver depends upon the third party’s testimony being undisputed. Dansby, supra. Here, the State introduced evidence that there had been a waiver of the privilege. As such, we cannot conclude that the trial court erred.
4-3 (h) Review
In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no prejudicial error has been found. Doss v. State, 351 Ark. 667, 97 S.W.3d 413 (2003).
Affirmed.
Arnold, C.J., and Thornton, J., dissent. | [
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Per Curiam.
Appellant, James Ricky Mauldin, by and through his attorney, has filed a motion for rule on clerk. Attorney, Frank E. Shaw, states in the motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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W. H. “Dub” Arnold, Chiefjustice.
The sole issue in this personal injury/wrongful death case is whether an award of punitive damages should be upheld. We hold that there was substantial evidence to support the award of punitive damages, and affirm the judgment.
On November 9, 1999, Lee Earnest Johnson was driving a logging truck for appellant, D’Arbonne Construction Company, from Crossett east on Highway 82. A trailer was riding “piggy back” on the truck. At the same time, Wayne Canley was also traveling east'on the same highway. James Tony Culbreath was driving west on Highway 82 with his wife, appellee Sherri Culbreath, his minor daughter, Keeli Mercedes Culbreath, and appellee, Sylvia Foster, as passengers. Johnson crossed into the westbound lane and struck the Culbreath vehicle head-on. James Tony Culbreath and Keeli Mercedes Culbreath died as a result of injuries sustained in the collision, and Sherri Culbreath and Foster sustained extensive personal injuries. Sherri Culbreath, individually and as administratrix of the estates of James Tony Culbreath and Keeli Mercedes Culbreath, filed personal injury and wrongful death actions against appellants (D’Arbonne andjohnson), Canley, and defendant Caskey Terral, individually and d/b/a Terral Logging Company (not a party to this appeal). Appellee Foster filed a separate action for her personal injuries.
The cases were consolidated and tried before a jury. The jury concluded that both D’Arbonne andjohnson were negligent and assigned each of them fifty percent of the fault. The jury also found that appellants were not acting as agents of Terral at the time of the accident. The jury returned compensatory-damage awards of $175,000 to the estate of Keeli Mercedes Culbreath, $267,000 to the estate of James Tony Culbreath, $50,000 to appellee Sherri Culbreath, and $225,000 to appellee Foster. In addition, the jury awarded separate punitive-damage awards of $120,000 to the estate of Keeli Mercedes Culbreath, $180,000 to the estate of James Tony Culbreath, $50,000 to appellee Sherri Culbreath, and $50,000 to appellee Foster. Appellants moved for a directed verdict on the issue of punitive damages, alleging that there was insufficient evidence to submit that claim to the jury. The trial court denied that motion.
Appellant appealed to the Arkansas Court of Appeals, arguing that the denial of the motion for directed verdict on punitive damages was error. The court of appeals affirmed the trial court and recounted evidence of Johnson’s driving record, the poor maintenance of the truck, the decrepit condition of the truck as testified by two experts, and Johnson’s statements at the scene of the accident. The court of appeals found that the truck had no brakes and that Johnson had received five citations in the last five years for speeding or defective equipment. The court of appeals held that not only did the record support a finding of gross negligence in the failure to maintain the braking and control systems of the truck and in permitting Johnson to drive it, but there was also evidence that the brakes were intentionally disabled so that the truck could continue to operate, despite the lack of maintenance. The court of appeals held that the evidence amply supported denial of appellants’ directed-verdict motions. D’Arbonne Construction Co. v. Foster, 80 Ark. App. 87, 91 S.W.3d 540 (2002).
We subsequently granted appellant’s petition for review. When this court grants a petition to review a decision by the court of appeals, this court reviews the appeal as if it had been originally filed in this court. Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002).
Our standard of review of a denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. Wal-Mart Stores, Inc. v. The P.O. Market, Inc., 347 Ark. 651, 66 S.W.3d 620 (2002). Substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty and it must force the mind to pass beyond mere suspicion or conjecture. State Auto Property Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999); Barnes, Quinn, Flake & Anderson, Inc. v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993). When determining the sufficiency of the evidence, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered, and we give that evidence the highest probative value. Id. A motion for directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury’s verdict for the party to be set aside. Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000). A motion for directed verdict should be denied when there is a conflict in the evidence, or when the evidence is such that a fair-minded people might reach different conclusions. Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). In the case of a denial of a directed verdict, we must determine if there was substantial evidence to support the jury’s verdict. Id.
This court has said that an award of punitive damages is justified only where the evidence indicates that the defendant acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice may be inferred. Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992); Missouri Pacific Railroad v. Mackey, 297 Ark. 137, 760 S.W.2d 59 (1988); National By-Products, Inc. v. Searcy House Moving Company, Inc., 292 Ark. 491, 731 S.W.2d 194 (1987). In other words, in order to superadd this element of damages by way of punishment, it must appear that the negligent party knew, or had reason to believe, that his act of negligence was about to inflict injury, and that he continued in his course with a conscious indifference to the consequences, from which malice may be inferred. Mackey, 297 Ark. at 145; 760 S.W.2d at 63, National By-Products, Inc., 292 Ark. at 494, 731 S.W.2d at 196. In order to warrant a submission of the question of punitive damages, there must be an element of willfulness or such reckless conduct on the part of the defendant as is equivalent thereto. Dalrymple v. Fields, 276 Ark. 185, 188, 633 S.W.2d 362, 364 (1982)(quoting Hodges v. Smith, 175 Ark. 101, 293 S.W.2d 1023 (1927)).
When we review an award of punitive damages, we consider the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. United Ins. Co. of Am. v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998). An instruction for punitive damages may be given when there is evidence that a party likely knew or ought to have known, in light of the surrounding circumstances, that his conduct would naturally or probably result in injury, and that he continued such conduct in reckless disregard of the consequences from which malice could be inferred. McLaughlin v. Cox, 324 Ark. 361, 371, 922 S.W.2d 327, 333 (1996) (quoting Allred v. Demuth, 319 Ark. 62, 890 S.W.2d 578 (1994)). Whether a vehicle is being operated in such a manner as to amount to wanton or willful conduct in disregard of the rights of others must be determined by the facts and circumstances in each individual case. Lawrence v. Meux, 282 Ark. 512, 669 S.W.2d 464 (1984); Ellis v. Ferguson, 238 Ark. 776, 385 S.W.2d 154 (1964); Splawn v. Wright, 198 Ark. 197, 128 S.W.2d 248 (1939).
Here, the record reflects that Johnson, with twenty years’ driving experience, was speeding at the time of the accident and was too close to the Canley vehicle. Johnson received five citations for speeding or defective equipment within five years prior to the accident. The truck involved in the accident had approximately 500,000 miles on it at the time of the accident. Johnson testified that he made daily inspections of the truck and adjustments to the brakes and to the slack adjustor. The company maintained that it had a weekly schedule for maintenance to be performed on its vehicles, usually Fridays and Saturdays, which was performed by the company mechanic. The mechanic, Pancho Hernandez, would have someone record the work performed in a log. The last log entry was August 1, 1999, the day Hernandez left D’Arbonne. The last log entry showing brake work, however, was in 1994.
After the accident, Trooper Fuller discussed with Johnson various problems with the truck. A witness to the accident, Tony Blann, testified that Johnson told bystanders at the scene that he “couldn’t hold the truck on the road” and that he “Told 'em to get that fixed. I told ’em, and I told ’em.” Blann testified that Johnson further commented that the “walking beam” was the problem with the truck. Another witness, Robert Carter, testified that he was at the scene of the accident and spoke with Johnson, who stated, “I told my boss a couple of weeks ago that something’s wrong with this truck, and I don’t guess he did anything about it.”
At trial, Lewis Elton testified as an expert concerning the mechanical condition of the truck. Elton inspected the truck twice. He inspected all the wheels on the truck and found that one wheel seal was leaking and had been doing so for some time. Elton testified that the No. 2 axle had been “backed off.” Elton testified that the truck was in “poor, poor condition,” and that he “would not put the truck back on the road like that because it would be dangerous.” Elton further opined that the manner in which the brakes were adjusted would cause the truck to pull to the left because “you were not getting any brake on that wheel.” Elton went on to state, “It is my opinion that the condition of the walking beams, the brakes, and everything else I found wrong with the truck has something to do with causing or contributing to the accident. It is my opinion that all of that stuff together caused the truck to pull to the left.”
Another expert witness, David Thomas, also testified as an expert log-truck mechanic. Thomas testified, “I do not see how someone operating this truck or watching this truck, or looking at this truck, making weekly inspections or regular inspections, could have not seen this condition that I found on August 22. I would not put a truck on the road in this condition.” Thomas attributed the damage on the truck to “poor maintenance by not changing stuff that needs to be changed on something. You must keep that stuff up. You have to spend money to make money.” Like Elton, Thomas found that the No. 2 axle had been “backed off,” and reasoned, “I do not know why the brake would be backed off, unless the people owning and operating this truck had reason to know that, that the brakes were defective.” Thomas testified that, “It is my guess that this brake was backed off to keep it from camming over. That’s why I would have backed it off. That’s my opinion, and it’s not a guess.” He stated that the brakes had been intentionally backed off in lieu of proper maintenance.
Appellant relies on National By-Products, Inc. v. Searcy House Moving Co., 292 Ark. 491, 731 S.W.2d 194 (1987), wherein we held that gross negligence will not support an award of punitive damages. In that case, Foley, a driver for National, was late leaving Batesville. The truck weighed 480 pounds over the legal limit. Foley had received six citations in the prior year for driving an overweight truck, and appellant had paid all of the citations. An employee of National testified that the company had a disciplinary procedure for drivers who got an excessive number of overweight tickets. This employee testified that Foley had an excessive number of such tickets but admitted that Foley had not been cautioned or disciplined for driving an overweight truck.
While driving downhill, Foley exceeded the fifty-five-miles-per-hour speed limit and drove his truck extremely close to other vehicles. Foley came around a curve at the crest of a small hill where Searcy House Moving was moving a house north on the same highway. As Foley sped downhill at approximately seventy miles per hour, he ran into the rear of a car and then struck Searcy House Moving’s rig and the house. Foley either did not apply his brakes, or he applied them but they did not function properly. At trial, National’s expert brake witness testified that Foley probably did apply his brakes just before the accident but that the brakes were not working properly.
One of National’s employees testified that the company policy was to adjust the trailer brakes once a month, but that the brakes on this trailer had not been adjusted for three-and-one-half months and the tractor brakes had not been opened for a complete inspection for almost six months, although the brakes were adjusted about six weeks before the accident. There were also internal inspections of the brakes every 50,000 miles, as recommended by the American Trucking Association and; in addition, the drivers conducted a daily inspection. There was no evidence that National had any knowledge that the brakes were faulty.
In that case, we reversed the award of punitive damages, stating:
The foregoing facts do not show that appellant, either by its own policies or through the actions of its agent Foley, intentionally acted in such a way that the natural and probable consequence was to damage appellee’s property. Nor do the facts show that appellant knew that some act of negligence was about to cause damage, but still continued to cause that damage.
Id. at 495, 731 S.W.2d at 196-197.
However, the facts in the instant case and the facts in National By-Products can be distinguished. In the case at hand, the driver himself, Johnson, stated to witnesses after the accident that he had informed D’Arbonne of the dangerous condition of the truck. Therefore, D’Arbonne knew, or should have known, about the truck’s poor condition. The jury was presented with testimony from expert witnesses regarding D’Arbonne’s failure to maintain its vehicles. The jury was also presented evidence that D’Arbonne knowingly altered the brakes.
In Potts v. Benjamin, 882 F.2d 1320 (8th Cir. 1989), the Eighth Circuit Court of Appeals distinguished the facts in that case from National By-Products, stating:
In National By-Products, which involved a collision between a tractor-trailer rig driven by an employee of the defendant company and several other vehicles, the evidence showed that the defendant company had a policy of adjusting the brakes on its trailers once per month and of conducting an internal inspection of the brakes on its tractors every fifty thousand miles. 731 S.W.2d at 196. By contrast, in the case at bar plaintiffs presented evidence from which the jury could find that defendants never inspected the brakes on any of the trucks they sold and that they did not care whether the brakes on the two “piggy-backed” trucks they sold Inturralde were operative or inoperative. There was also evidence from which the jury coulci find that defendants knowingly rendered the brakes on the two “piggy-backed” trucks inoperative. The jury was entitled to find that in these circumstances defendants knew or ought to have known that their placing the three-truck unit onto an interstate freeway system is conduct that will naturally and probably result in injury when, as happened here, the driver requires maximum braking power in the face of a hazard of the road, and that they nevertheless did so with reckless disregard for the consequences.
Potts, 882 F.2d at 1327.
Evidence is sufficient to support punitive damages if the party against whom such damages may be assessed, knew or ought to have known, in light of the surrounding circumstances, that the party’s conduct would naturally and probably result in injury and that party continued such conduct in reckless disregard of the circumstances from which malice may be inferred. HCA Health Services of Midwest, Inc. v. National Bank of Commerce, 294 Ark. 525, 745 S.W.2d 694 (1988).
In the case at hand, the jury was instructed on punitive damages due to the direct evidence of the actual physical condition of the logging truck and the expert witnesses’s testimony about the condition of the truck that showed appellant had prior knowledge, knew, or should have known about the dangerous condition of the truck. Therefore, we affirm.
Affirmed. | [
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Per Curiam.
Appellant Bobby S. Morgan, by and through his attorney, Erwin L. Davis, has filed a motion for rule on the clerk. Attorney Davis states in the motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Tom Glaze, Justice.
Appellant Joshua Brown appeals from his convictions for first-degree murder and rape. Brown’s sole point for reversal is that the trial court erred in denying his motion to suppress two custodial statements he gave to police shortly after the murder.
Because Brown does not challenge the sufficiency of the evidence on appeal, only a brief recitation of the facts is necessary. At about 4:50 a.m. on the morning of September 26, 1999, police responded to a 911 call from an apartment located at 1207 Sunset Drive in Rogers. Upon arriving, officers encountered a middle-aged man yelling, “He’s not breathing, he’s not breathing,” and a second, younger man who was entirely naked and holding a flashlight and a telephone. An adolescent was found on the floor of the apartment’s bedroom; the boy was naked and not breathing. Officers noted that the boy had some duct tape wrapped around one hand, and there were feces on his abdomen and genitals. An empty pill bottle was on the mattress next to the child. The boy, thirteen-year-old Jesse Dirkhising, was taken to St. Mary’s Hospital in Rogers, where he was pronounced dead. The cause of death was later determined to be suffocation and positional asphyxia, with acute amitryptiline intoxication.
The two men in the apartment — thirty-eight-year-old Davis Don Carpenter and twenty-two-year-old Joshua Brown — were subsequently questioned by the Rogers police. Brown was arrested at the apartment for second-degree battery after he struck one of the investigating officers. After giving a number of statements to the police, Brown was charged with capital murder and six counts of rape. The rape charges were later reduced to one count, and Brown was convicted of rape and first-degree murder. A jury sentenced him to twenty-five years on the rape conviction; after the jury deadlocked on a sentence for the murder conviction, the Benton County Circuit Court sentenced Brown to life imprisonment. As noted above, Brown’s appeal challenges only the trial court’s denial of his motion to suppress two of his statements, implicating both himself and Carpenter.
This court recently clarified the appropriate standard of review for cases involving a trial court’s ruling on the voluntariness of a confession. Applying that standard, our court makes an independent determination based upon the totality of the circumstances. Grillot, v. State, 353 Ark. 294, 107 S.W.3d 136 (2003); Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001). Any conflict in the testimony of different witnesses is for the trial court to resolve. Cox, supra. In reviewing the trial court’s ruling, we will reverse it only if it is clearly against the preponderance of the evidence. Grillot, supra; Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977).
Brown’s argument for reversal centers on two statements he gave to investigating officers Jared Mason and Hayes Minor. These two statements were the last of four statements Brown gave during the thirty-six hours following Jesse’s death. Brown argues that the trial court erroneously ruled that these statements, given to officers Minor and Mason, were not the result of false promises of leniency.
This court has summarized our analysis of an allegedly false promise of leniency in both Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998), and Pyles v. State, 329 Ark. 73, 947 S.W.2d 754 (1997). That analysis is as follows:
If a police official makes a false promise which misleads a prisoner, and the prisoner gives a confession because of that false promise, then the confession has not been voluntarily, knowingly and intelligently made. In determining whether there has been a misleading promise of reward we look at the totality of the circumstances.The totality is subdivided into two main components!:] first, the statement of the officer and second, the vulnerability of the defendant. Because these two factors create such a multitude of variable facts, it has been impossible for us to draw bright lines of substantive distinction.
Connor, 334 Ark. at 469-70; Pyles, 329 Ark. at 77-78 (quoting Davis v. State, 275 Ark. 264, 630 S.W.2d 1(1982)).
If, during the first step, this court decides that the officer’s statements are unambiguous false promises of leniency, there is no need to proceed to the second step because the defendant’s statement is clearly involuntary. See Pyles, supra; Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995); Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). If, however, the officer’s statement is ambiguous, making it difficult for us to determine if it was truly a false promise of leniency, we must proceed to the second step of examining the vulnerability of the defendant. See Pyles, supra; Durham, supra; Hamm, supra. Factors to be considered in determining vulnerability include: 1) the age, education, and intelligence of the accused; 2) how long it took to obtain the statement; 3) the defendant’s experience, if any, with the criminal-justice system; and 4) the delay between the Miranda warnings and the confession. Connor, supra; Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987).
Brown argued below and in this appeal that the statements he gave to Minor and Mason were the result of the officers’ false promise of leniency. Specifically, he points out Mason’s testimony from the suppression hearing that Mason told Brown “that this was his chance to help himself.” Although Brown’s statement was tape-recorded, Mason made this statement to him prior to turning the tape recorder on. At the suppression hearing, Mason agreed that “help” could mean “benefit,” but he asserted that he did not intend for his remarks to be construed by Brown “in a way of giving him hope of a benefit or giving him hope.” Mason denied making Brown any promises or threatening him in any way, and he stated that he “did not convey to [Brown] how he was to help himself if he was to cooperate.”
Brown also argues that Minor made false promises to him, and asserts that it was Minor’s intent to make Brown believe that by continuing to give statements, he would be helping himself. Brown argues that, by using this tactic, Minor intentionally created in Brown the false hope that he would receive some benefit in exchange for his cooperation. Minor’s testimony at the suppression hearing reflected that he “told [Brown] that this wasn’t a deal-making process, that we really had no say in what would happen to him in the future.” Minor also testified that he did not recall that he specifically advised Brown that he had an opportunity to help himself, but agreed that it was “not something I wouldn’t say.” Minor said that he told Brown that he “need[ed] all the help you can get right now,” but Minor averred that he “made no specifics on how [Brown] could help himself out.” Minor also testified he told Brown that he could not “make . . . any promises what is going to happen yet.” The trial court denied Brown’s motion to suppress.
As noted above, in reviewing a trial court’s denial of a motion to suppress, this court makes an independent determination based upon the totality of the circumstances. Considering all of the circumstances, and taking into account the factors this court must address, it is clear that the trial court did not err in denying Brown’s motion to suppress his statements. The first step in this court’s analysis is to examine the officer’s statement and determine whether it was an ambiguous promise of leniency. See Connor, supra; Pyles, supra. Here, although the trial court initially expressed what it termed “serious doubts” about the officers’ tactics, the court ultimately found that the officers’ statements to the effect that Brown could “help himself’ were ambiguous promises. This court’s recent case of Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003), is quite similar and controls our analysis here. In Roberts, this court held that an officer’s encouragement to the defendant to “get it off your chest, we’ll help,” “could mean anything from letting Roberts cleanse his guilty conscience, ... to allowing him to speak to a clergyman .... It certainly was not specific enough to be viewed as a false promise to get Roberts a reduced charge or a lesser sentence if he confessed.” Roberts, 352 Ark. at 500, 102 S.W.3d at 489-90.
In the instant case, Mason testified that, by telling Brown he had the opportunity to help himself, he meant that Brown had an opportunity to not be the only person charged with the crime. Mason denied, however, that he was trying to give Brown any hope that there would be an exchange of leniency. Likewise, Minor testified that he told Brown that he needed all the help he could get, and that he “had an opportunity to help himself by giving [Minor] a statement,” but denied that he made any specifics about what the word “help” meant. Clearly, these were, at best, ambiguous promises.
Because the statements were ambiguous, the court must then examine Brown’s vulnerability. The factors to consider, as noted above, are 1) the age, education, and intelligence of the accused; 2) how long it took to obtain the statement; 3) the defendant’s experience, if any, with the criminal-justice system; and 4) the delay between the Miranda warnings and the confession. Here, the trial court first pointed out that Brown’s first two inculpatory statements were unquestionably proper, and the officers taking those statements had made Brown “as comfortable as he could be.” The trial court also noted that, at the time he gave the latter two statements, Brown already knew that he was going to be charged with murder, that he had voluntarily gone to the hospital to give a DNA sample, and that he was much calmer at the time he gave the two challenged statements. Considering the context of the entire exchange leading up to Brown’s third statement, the court found that Brown was not so vulnerable at that point in time that the suggestions that he would be helping himself overrode his free will and turned an otherwise voluntary statement into something that was involuntary. With respect to the fourth statement, the court highlighted the fact that Brown had been given the chance to sleep overnight, and that he had been aware for nearly twenty-four hours that he was under suspicion of murder. The trial court concluded that there was “no way” it could find that anything Brown had said was in response to or in reliance upon some sort of promise by the police to help him.
In Roberts, where the police told Roberts to “get it off his chest,” this court affirmed the denial of a suppression motion where Roberts was thirty-one years old, had a high school education, and had held a job for the last six years. He was detained by the police for only about two hours, and there was no lengthy delay between the time he was given his Miranda warnings and when he gave his confession. Therefore, this court concluded, the evidence did not demonstrate that Roberts was so vulnerable that the officer’s statements to him rendered the confession involuntary.
In the present case, at the time of the murder, Brown was twenty-two years old, and his forensic mental evaluation revealed that he had a full-scale IQ of 114; Dr. Michael Simon, who conducted the evaluation, indicated that this score meant Brown was “presently functioning in the high average range of intelligence.” The first of Brown’s two statements was given at 10:51 p.m. on the same day the murder took place, and the second occurred at 9:18 the following morning. With respect to Brown’s experience with the criminal justice system, he had been arrested at least three times before and had been to jail briefly. Brown had been advised of his Miranda rights prior to each of his earlier statements, and both Detective Mason and Sergeant Minor reminded him of those rights just before the two statements in question. Based on these factors, we cannot say that Brown was so vulnerable that his statements were involuntary, and it is apparent that the trial court did not err in denying Brown’s motion to suppress these statements.
The record in this case has been reviewed for other reversible error in accordance with Ark. Sup. Ct. R. 4-3(h), and none has been found.
Affirmed.
Corbin and Thornton, JJ., not participating.
At trial, Brown moved only for a directed verdict on the charge of capital murder, and did not move for a directed verdict on any lesser-included offense. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). During his opening statements, Brown conceded that the rape had occurred.
At this point in their investigation, the officers had found some handwritten documents at Brown and Carpenter’s apartment that they believed were instructions fiom Carpenter to Brown about what to do to the victim; Mason testified that he was trying to get Brown to tell him what the papers were.
Brown had been arrested twice for possession of marijuana, once on a contempt citation for failure to report to his probation officer, and once for having an expired license plate. | [
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W. H. “Dub” Arnold, Chief Justice.
Petitioner, Jeffrey Stewart Swartz, brings a petition for a writ of prohibition against Pulaski County Circuit Court, Second Division, naming Judge Chris Piazza as respondent. This petition arises from the trial court’s order denying a motion to dismiss based upon violations of the speedy-trial provisions of Ark. R. Crim. P. 28. In his petition, petitioner seeks a writ of prohibition on his prosecution and a reversal of the trial court’s denial of his motion to dismiss. Petitioner argues that the State has failed to bring him to trial within the 365 days required under Ark. R. Crim. P. 28.1. We deny the petition.
I. Facts
On April 11, 2001, petitioner was arrested for driving while under the influence, driving with a suspended license, improper passing, no proof of liability insurance, and leaving the scene of an accident involving personal injury. On April 30, 2001, petitioner pled not guilty in North Little Rock Municipal Court. Trial was scheduled at that time for June 19, 2001; however, on the trial date, petitioner failed to appear. Bench warrants were later issued on December 26, 2001. On February 6, 2002, the warrants were served, and petitioner was arrested for his failure to appear for trial on June 19.
A criminal information, charging petitioner with leaving the scene of an accident with injury (a felony) and violation of the DWI Omnibus Act, third offense, as well as driving with a suspended or revoked driver’s license (misdemeanors) was filed on July 25, 2002. Bond forfeiture was ordered and was later set aside; and, on October 23, 2002, petitioner filed a motion to dismiss his charges for lack of a speedy trial.
A hearing on petitioner’s speedy-trial motion was held on November 7, 2002, during which Judy West, the chief clerk for North Little Rock’s Traffic Court, testified as the only witness. The State introduced State’s Exhibit No. 1, which was identified as the “Municipal Court System’s Judge’s Calendar”; it was admitted into evidence. Clerk West testified that Exhibit No. 1 reflected the fact that petitioner failed to appear for trial on June 19, 2001, and that the court had, as a result, ordered bench warrants to be issued. She went on to testify that the warrants were not issued until December 26, 2001, because there was an influx of additional tickets being issued by state troopers at that time and that her office “simply got behind” in issuing bench warrants. She averred that the clerk’s file did not contain a docket sheet with the judge’s notes for June 19, but that the court’s calendar, which was generated by a deputy clerk, reflected any oral orders made by the judge.
At the close of the hearing, Judge Piazza announced the issue to be whether there was a sufficient enough entry by the municipal court judge on June 19, 2001, to indicate a failure to appear, when all that was noted by the municipal court judge was “BW.” The parties were ordered to file post-hearing briefs. On January 15, 2002, the circuit court issued an order generally denying petitioner’s motion to dismiss. The order did not address what time was excludable for purposes of speedy-trial calculations.
Petitioner now seeks a writ of prohibition, contending that he is entitled to have his charges completely dismissed pursuant to Ark. R. Crim. P. 28.1(b) because a clear record was not made contemporaneously at the time he failed to appear for trial; and, as such, no excludable time for purposes of speedy-trial calculations exists. We disagree.
II. Speedy Trial
Petitioner seeks a writ of prohibition against Judge Chris Piazza to prohibit him from conducting a trial on the basis that he had been denied a speedy trial. We note that petitioner erroneously seeks the writ against Judge Piazza. That is incorrect. Prohibition lies to the circuit court and not to the individual judge. Gondolfi v. Clinger, 352 Ark. 156, 98 S.W.3d 812 (2003); Crump v. Ford, 346 Ark. 156, 55 S.W.3d 295 (2001). Accordingly, we must treat the petition as one against the Pulaski County Circuit Court, Second Division. Id.
Petitioner argues that a writ of prohibition should issue. In Doby v. Jefferson County Circuit Court, 350 Ark. 505, 88 S.W.3d 824 (2002), we stated as follows:
Pursuant to Ark. R. Crim. P. 28.1(d), a defendant may bring a petition for a writ of prohibition when the trial court denies the defendant’s motion for dismissal under the speedy-trial rules. A writ of prohibition is an extraordinary writ that is only appropriate when the court is wholly without jurisdiction.
Id. (citing Gamble v. State, 350 Ark. 168, 85 S.W.3d 520 (2002)). A writ of prohibition will not issue unless it is clearly warranted. Id.
Under Ark. R. Crim. P. 28.1, a defendant must be brought to trial within twelve months unless there are periods of delay which are excluded under Ark. R. Crim. P. 28.3. Moody v. Arkansas County Circuit Court, Southern District, 350 Ark. 176, 85 S.W.3d 534 (2002). If the defendant is not brought to trial within the requisite time, the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 30.1. If, prior to that time, the defendant has been continuously held in custody, or has been lawfully at liberty, the time for trial commences running from the date of arrest. Ark. R. Crim. P. 28.2. It is well settled that a defendant does not have a duty to bring himself to trial; rather, the burden is on the court and the prosecutor to see that the trial is held in a timely fashion. Moody, supra. Once a defendant establishes a prima facie case of a speedy-trial violation, the State bears the burden of showing that the delay was the result of the defendant’s conduct or otherwise justified. Id.
In the instant case, there were, indisputably, 560 days between April 11, 2001, when petitioner was arrested, and October 23, 2002, when petitioner filed his motion to dismiss based on speedy trial. Accordingly, petitioner has made a prima facie showing of a speedy-trial violation. Id.; see also Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000). However, 232 days clearly passed between June 19, 2001, when petitioner failed to appear for trial, and February 6, 2002, when petitioner was arrested on the failure-to-appear bench warrants. Rule 28.3 of the Arkansas Rules of Criminal Procedure provides the periods of time that are to be excluded in computing the time for trial. See Ark. R. Crim. P. 28.3 (2003). Rule 28.3(e) states that “[a] defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial.” Ark. R. Crim. P. 28.3(e). As such, the 232 days between June 19, 2001, and February 6, 2002, would be excludable for purposes of speedy-trial calculations, which leaves 328 non-excludable days from the date ofpetitioner’s arrest until he filed his motion to dismiss. Therefore, petitioner’s speedy-trial rights were not violated in this case. See, e.g., Jones v. State, 347 Ark. 455, 65 S.W.3d 402, cert. denied, 536 U.S. 909 (2002) (holding that defendant was tried within the one-year requirement of Rule 28 after the total excludable time was subtracted from the total amount of time that it took to bring the defendant to trial).
In this case, petitioner merely quarrels over the adequacy of the municipal court’s records reflecting his absence for trial on June 19, 2001. This Court has consistently held that failure to make a docket entry or written order relating to excludable periods does not warrant an automatic reversal under Rule 28.3 and that when a case is delayed by the accused and the delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirement of Rule 28.3. Osborn v. State, 340 Ark. 444, 11 S.W.3d 528 (2000).
At the speedy-trial hearing on petitioner’s motion to dismiss, Judy West testified that the record evidenced the petitioner’s failure to appear for trial on June 19, 2001. She also testified that the court’s calendar, generated by a deputy clerk, reflected any oral orders made by the judge. Consequently, even though evidence of an actual docket entry by the municipal court judge was not presented at the speedy-trial hearing, we hold that the clerk’s records, with the reference to “BW” for bench warrant, sufficiently memorialized the fact that petitioner failed to appear for trial on June 19 in order to satisfy the requirements of Rule 28.3. We, therefore, deny petitioner’s petition for writ of prohibition.
Denied.
Thornton, J., not participating. | [
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Donald L. Corbin, Justice.
Petitioner Damien Wayne Echols was convicted in the Craighead County Circuit Court of three counts of capital murder and sentenced to death. This court affirmed his conviction and sentence in Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, 520 U.S. 1244 (1997). He now petitions this court to reinvest jurisdiction in the circuit court to allow him to seek a writ of error coram nobis. He offers two grounds for which he claims the writ is warranted: (1) he was incompetent at the time of trial, and (2) exculpatory evidence not previously provided to the defense has been discovered. For the reasons set out below, we deny the petition.
We note at the outset that a writ of error coram nobis is an extraordinarily rare remedy, known more for its denial than its approval. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam); State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The writ is only available to address certain errors of the most fundamental nature that are found in one of four categories: (1) insanity at the time of trial; (2) a coerced guilty plea; (3) material evidence withheld by the prosecutor; or (4) a third-party confession to the crime that occurs during the time between conviction and appeal. Id.
Where the writ is sought after the judgment has been affirmed on appeal, the circuit court may entertain the petition only after this court grants permission. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (percuriam); Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). This court will grant such permission only when it appears the proposed attack on the judgment is meritorious. Jenkins v. State, 223 Ark. 245, 265 S.W.2d 512, cert. denied, 347 U.S. 956 (1954) (per curiam) (citing 24 C.J.S. Criminal Law, 1606c(l)). In making such a determination, we look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof. Id. With this standard in mind, we review Echols’s claims.
I. Competency at Trial
Echols’s first ground for relief is his claim that he was incompetent at the time of his trial, in February and March 1994. He relies upon the affidavits of Dr. George W. Woods, dated February 9, 2001,.and May 15, 2001, wherein Dr. Woods concluded that Echols was incompetent at the time of his trial, based upon his review of Echols’s prior mental-health records, the trial transcript, video tapes of Echols’s testimony, and interviews with Echols conducted in December 2000. Echols asserts that he has only recently been made aware of the extent of the mental problems that he was facing at the time of trial, and that his illness actually prevented him from being aware of his incompetency. He further claims that before and during his trial, he was administered drugs without his consent.
As a procedural matter, the State invites us to reconsider the viability of the writ of error coram nobis as a mechanism for challenging competency after the fact. The State contends that the writ is no longer necessary because there is a careful statutory scheme in place to challenge competency at trial, as well as adequate postconviction procedures. This court does not lightly overrule cases and applies a strong presumption in favor of the validity of prior decisions. See State v. Singleton, 340 Ark. 710, 13 S.W.3d 584 (2000); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998) (superseded by statute on other grounds). As a matter of public policy, it is necessary to uphold prior decisions unless a great injury or injustice would result. Id. (citing Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996)). We decline the State’s invitation, as it is not necessary to overrule our precedent in this case. Instead, we hold that Echols has not been diligent in pursuing this claim.
Although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief. Larimore, 327 Ark. 271, 938 S.W.2d 818. In the absence of a valid excuse for delay, the petition will be denied. Id. (citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)). This court has held that due diligence requires that (1) the defendant be unaware of the fact at the time of trial; (2) he could not have, in the exercise of due diligence, presented the fact at trial; or (3) upon discovering the fact, did not delay bringing the petition. Id. (citing John H. Haley, Comment, Coram Nobis and the Convicted Innocent, 9 Ark. L. Rev. 118 (1954-55)). See also Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984).
The exhibits submitted with Echols’s petition and the records from his direct appeal demonstrate that the defense team was aware of Echols’s history of mental treatments at the time of trial. For example, the report compiled by defense investigator Glori Shettles, which is contained in the trial record, reveals the extent ofEchols’s mental treatments at the East Arkansas Regional Mental Health Center (1992-93), St. Vincent’s Hospital of Portland, Oregon (1992), and Charter Hospital of Little Rock (June and September 1992). Indeed, an entire volume of the record from his trial is devoted to the records from the foregoing treatment centers, as well as documents submitted by Echols to the Social Security Administration (SSA) for the purpose of obtaining disability payments. These are largely the same records that Echols now relies on to support his petition for a writ of error coram nobis.
Based on the foregoing, it is clear that Echols has not been diligent in pursuing the issue of his competency. It has been nearly ten years since his trial was held, in February and March 1994. The medical records upon which he now relies were not only available prior to the date of his trial, they were, in fact, offered by the defense at trial and considered by the jury. His claim that he was not aware, at the time of his trial, of the extent of his mental problems is not credible, in the face of the evidence to the contrary. Indeed, Echols himself testified at trial that he had been diagnosed as manic-depressive and that he was taking medication for his illness.
Furthermore, Echols’s current counsel have had access to the foregoing records since 1997, when the defense filed the first Rule 37 petition, and throughout the Rule 37 proceedings, which lasted until June 1999. Thus, at a minimum, Echols could have pursued the issue of his competency within the Rule 37 proceedings, either as part of his claim of ineffective assistance of counsel or as a freestanding issue. See Matthews v. State, 332 Ark. 661, 966 S.W.2d 888 (1998) (per curiam); Burnett v. State, 293 Ark. 300, 737 S.W.2d 631 (1987) (per curiam). In sum, given the circumstances of this case, waiting some ten years to raise the issue of his competency to stand trial .is not exercising due diligence.
Before we leave this point, we must address Echols’s suggestion that, at a minimum, we should remand this matter for the trial court to determine whether his trial counsel were ineffective for failing to raise the issue of his competency at trial. Fie claims that this court’s holding in Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (2001), excuses the failure of his current counsel to raise this issue under Rule 37. In Jackson, this court held that due process and fundamental fairness required consideration of the merits of the appellant’s petition, even though it was not filed within the strict time limits set out in Rule 37.5. This issue is not implicated here.
As noted above, Echols’s po'stconviction proceedings went on for some two years in the trial court. He clearly had ample opportunity to pursue a claim of ineffectiveness for counsel’s failure to challenge his competency. The fact that he failed to do so, however, does not mean that the Rule 37 proceedings themselves failed to comport with due process. Were we to allow Echols to raise this claim at this late date, we would be thwarting the concept of finality in legal decisions. Furthermore, as the State points out, we would be going against our own precedent, as this court previously foreclosed any further attempts by Echols to pursue new claims for postconviction relief. See Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001). Accordingly, we deny relief on this ground.
II. Material Evidence Withheld from the Defense
For his second ground for coram nobis, Echols asserts that exculpatory evidence has recently come to his attention that was not provided to the defense prior to trial. Officer John P. Slater, of the West Memphis Police Department, executed an affidavit on February 20, 2001, in which he stated that between 5:00 and 5:30 a.m. on May 6, 1993, he and his lieutenant thoroughly searched the area at Ten Mile Bayou where the victims in this case were later found. Slater states that they had heavy-duty flashlights and some predawn light, and that he is confident that they would have discovered the bodies if they had been present at the time. Slater also stated that within forty-eight hours of the bodies being discovered, he heard a radio communication that an individual had been stopped on Interstate 40, near the crime scene, and'questioned. Slater said that when the individual was told that the police were inquiring into the murders of the three boys, the individual fled. Thereafter, Slater stated, a helicopter from Memphis, Tennessee, was dispatched to help look for the fleeing individual.
On this point, it appears that Echols has exercised due diligence in presenting this issue. Echols was unaware of these facts at the time of trial, and it does not appear from the record that he could have presented these facts at trial. His petition reflects that his counsel only received Slater’s information less than twelve months before they filed the current petition. Notwithstanding his diligence, we reject this claim because Echols has not demonstrated that the failure to reveal this information to the defense amounted to a fundamental error, such that there is a reasonable probability that the judgment of conviction would not have been rendered.
A mere claim of newly discovered evidence in itself is not a basis for relief under coram nobis. Dansby, 343 Ark. 635, 37 S.W.3d 599. The petitioner must show that a fundamental error occurred, such that “the facts as alleged as grounds for its issuance are such that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the exculpatory evidence been disclosed at trial, not that the newly discovered evidence might have produced a different result had it been known to judge and jury.” Id. at 637, 37 S.W.3d at 603 (citing Larimore, 341 Ark. 397, 17 S.W.3d 87).
Here, the evidence presented at trial showed that the victims’ bodies were discovered in a ditch near Ten Mile Bayou around 1:30 p.m. on May 6, 1993. West Memphis Police Detective Mike Allen testified that he saw a shoe floating in the water filling the ditch. When he entered the water to reach for the shoe, he felt something strike his foot; it was the submerged body of one of the victims. Shortly thereafter, the bodies of the other two victims were found about twenty-five feet downstream, also submerged. Due to the submerged nature of the bodies, Slater’s testimony is not inconsistent with Allen’s. The bodies were not initially visible from out of the water during the afternoon light; hence, it does not strain credulity to think that they would not be visible during the early-morning, predawn hours.
Slater’s affidavit is silent as to whether he actually got into the water to check for the boys. Echols asserts that this silence requires this court to remand the matter to the trial court, at least for the limited purpose of taking Slater’s full testimony. This argument ignores the fact that it is his burden to show that the writ is warranted. We will not undertake to reinvest jurisdiction in the trial court just for the purpose of allowing the petitioner to conduct some sort of fishing expedition. He has had an adequate opportunity to prove the materiality of this evidence, and he has failed to do so. At best, Slater’s testimony constituted conflicting evidence as to the discovery of the victims and, particularly, their time of death. The State’s case, however, did not emphasize a time of death. As such, Echols has failed to show a reasonable probability that the judgment of conviction would not have been rendered or would have been prevented, had Slater’s testimony been made known to the defense.
Likewise, Echols has failed to show the materiality of Slater’s testimony about another individual fleeing from the police in the area near the crime scene. This evidence is not exculpatory, and it would not have been admissible at trial. This court stated as much in Echols’s direct appeal: “We have held that evidence that a third party may have committed the crime is inadmissible unless it points directly to the guilt of the third party. If it creates no more than an inference or conjecture as to the third party’s guilt, it is inadmissible.” Echols, 326 Ark. 917, 962, 936 S.W.2d 509, 531 (citing Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993)). The testimony offered by Slater did not point directly toward the guilt of any particular third party and raised nothing more than an inference or conjecture that someone else might have committed the murders. Accordingly, Echols is entitled to no relief on this claim, and we therefore deny his petition for leave to seek a writ of error coram nobis in the trial court.
Petition to reinvest jurisdiction in the circuit court denied.
Imber, J., concurs.
Echols originally raised the additional ground that he was being administered drugs without his consent while he was in jail awaiting trial. During oral argument before this court, counsel for Echols conceded that this allegation would not qualify as a separate coram nobis claim, but rather, only as evidence on his claim of incompetency. | [
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Ray Thornton, Justice.
On December 12, 1991, in Crittenden County Circuit Court case number 91-617, appellant entered a plea of guilty to the charge of possession of a controlled substance, and upon conviction, appellant was sentenced to ten years’ imprisonment in the Arkansas Department of Correction. In April 1993, appellant was released from the sentence imposed in case number 91-617, and his sentence for this offense was discharged in July of 1996.
Also on December 12, 1991, appellant entered a plea of guilty to the charge of delivery of a controlled substance, a Class Y felony, in case number 91-756. After entry of his guilty plea, appellant received a twenty-year sentence, imposition of which was suspended.
On December 11, 1997, the State filed a petition seeking revocation of the suspension of appellant’s sentence in case number 91-756. After a hearing on the State’s petition, the trial court granted the petition and sentenced appellant to twenty years’ imprisonment on the charge of delivery of a controlled substance. In 1998, appellant appealed the trial court’s order and the court of appeals affirmed the revocation in an unpublished opinion.
On March 12, 2002, appellant filed a petition seeking a writ of habeas corpus in the Circuit Court of Jefferson County. In his petition, appellant argued that the trial court lacked jurisdiction and that he was “being held pursuant to an invalid conviction.” Specifically, appellant argued that the original sentencing court erred when it suspended imposition of his sentence in case number 91-756 on the charge of delivery of a controlled substance. He argued that suspension of such a sentence was prohibited by statute. Next, appellant contended that the twenty-year suspended sentence imposed in case number 91-756 and the ten-year sentence that he received in case number 91-617 should have run concurrently. Finally, appellant argued that the second sentencing court erred when it sentenced him to twenty years’ imprisonment without taking into account the time which he served in case number 91-617. Appellant requested that his twenty-year sentence be “dismissed or corrected.”
On April 24, 2002, the Jefferson County Circuit Court entered an order denying appellant’s petition. It is from this denial that appellant appeals. We reverse the circuit court’s denial of appellant’s petition, grant appellant’s request for a writ of habeas corpus, and remand this case for resentencing.
We have explained the rules we follow when reviewing a petition for a writ of habeas corpus. Specifically, in Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999), we wrote:
A writ of habeas corpus will issue where a commitment is invalid on its face or where the sentencing court lacked subject-matter jurisdiction to enter or modify the sentence. See, e.g., Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997), Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). When a habeas corpus petition alleges that a sentence is void or illegal, we review the matter of the trial court’s subject-matter jurisdiction to enter such sentences regardless of whether an objection was made to the trial court.
Renshaw, supra. In Renshaw, we also noted that detention for an illegal period of time is precisely what a writ of habeas corpus is designed to correct. Id. In order to obtain habeas relief a petitioner must plead either the facial invalidity or the lack of jurisdiction and make a “showing, by affidavit or other evidence, [of] probable cause to believe” he is so detained. Flowers v. State, 347 Ark. 760, 68 S.W.3d 289 (2002); see also Ark. Code Ann. § 16-112-103 (1987).
Prior to reviewing the challenge to the validity of the judgment and commitment orders entered in this matter, we will consider whether the Crittenden County Circuit Court had jurisdiction over appellant’s case. In case number 91-756, appellant was charged by criminal information with the crime of selling or delivering a controlled substance. Arkansas Code Annotated § 16-88-101 (a) (3) (1987) provides in relevant part:
(a) The jurisdiction of the various courts of this state, for the trial of offenses, shall be as follows:
* * *
(3) the circuit court shall have general jurisdiction for the trial of all offenses which may be prosecuted by indictment, and all prosecutions and penal actions. . . .[.]
Id. Based upon the foregoing statutory provision, we conclude that the Crittenden County Circuit Court had jurisdiction over case number 91-756 and had jurisdiction to accept appellant’s guilty plea entered in that case. Accordingly, any contention that the trial court lacked jurisdiction over appellant’s case is without merit.
Additionally, before considering the merits of appellant’s appeal, we note that in its brief, the State argues that' appellant should have raised the issues contained in his habeas petition during his direct appeal. In support of its proposition, the State cites Hutcherson v. State, 316 Ark. 551, 873 S.W.2d 164 (1994). In Hutcherson, a criminal defendant was seeking a writ of habeas corpus after his conviction had been affirmed on appeal. Hutcherson argued that the circuit co urt had no jurisdiction over his conviction because the federal and state authorities had violated a federal act. Id. We determined that Hutcherson’s argument was without merit and that his argument, which was not jurisdictional, should have been raised during his direct appeal. Id. (emphasis added). In Hutcherson, we also noted that a petition for writ of habeas corpus cannot serve as a substitute for an appeal of a criminal conviction. Id.
Mindful of the principles articulated in Hutcherson, we conclude that the State’s argument is misplaced. Specifically, the issues raised in appellant’s habeas petition involve allegations of a void or illegal sentence. We have said that we will treat allegations of void or illegal sentences similar to the way that we treat problems of subject-matter jurisdiction. See Flowers v. State, 347 Ark. 760, 68 S.W.3d 289 (2002), see also Renshaw v. State, 337 Ark. 494, 989 S.W.2d 515 (1999). Additionally, we have noted that detention for an illegal period of time is precisely what a writ of habeas corpus is designed to correct. Flowers, supra. Accordingly, because appellant’s petition raises allegations of an illegal sentence, and because we have held that such allegations are appropriate for writs of habeas corpus, we will proceed to our consideration of the merits of appellant’s petition.
In appellant’s first point on appeal, he argues that the judgment and commitment order entered in case number 91-756 in December of 1991 was facially invalid. Specifically, appellant argues that the trial court was without authority to suspend imposition of his sentence in case number 91-756. Appellant further argues that because his sentence was improperly suspended in 1991, in a facially invalid judgment and commitment order, the trial court was without authority to impose the terms of that sentence in the 1998 judgment and commitment order which was issued after the trial court granted the State’s revocation petition.
We note that in Arkansas, sentencing is entirely a matter of statute. State v. Stephenson, 340 Ark. 229, 9 S.W.3d 495 (2000). Sentencing may not be other than in accordance with the statute in effect at the time of the commission of the crime. Id. Where the law does not authorize the particular sentence pronounced by a trial court, that sentence is unauthorized and illegal, and the case must be reversed and remanded. Id.
We now consider whether the judgment and commitment order entered in case number 91-756 in December of 1991 was facially invalid. Appellant contends that the trial court lacked authority to impose the sentence that it entered in case number 91-756. Appellant further contends that because the trial court acted without authority, the order entered in case number 91-756 was invalid.
The order that appellant challenges sentenced appellant to twenty years’ imprisonment and suspended imposition of the sentence. Appellant argues that the trial court lacked authority to suspend imposition of the sentence. In support of his argument, appellant cites Ark. Code Ann. § 5-4-301 (a)(1)(F) (Supp 1991). This statute provides in relevant part:
(a)(1) A court shall not suspend imposition of sentence as to a term of imprisonment nor place the defendant on probation for the following offenses:
* *
(F) Drug related offenses under the Uniform Controlled Substances Act § 5-64-101 et. seq____[.]
Ark. Code Ann. § 5-4-301(a)(l)(F); see also Ark. Code Ann. § 5-4-104(e)(1)(F) (Supp. 1991).
In case number 91-756, the case in which appellant received the twenty-year suspended sentence, appellant pleaded guilty to delivery of a controlled substance. According to the information filed in case number 91-756, the controlled substance that appellant delivered was cocaine. These actions were prohibited by the Uniform Controlled Substance Act. See Ark. Code Ann. § 5-64-401 (1987).
After reviewing the foregoing statutory provisions, we conclude that the trial court lacked authority to suspend imposition of appellant’s sentence in case number 91-756 and that the judgment and commitment order entered in that case was facially invalid. Specifically, appellant pleaded guilty to delivery of a controlled substance, a Class Y Felony, which was prohibited by the Uniform Controlled Substance Act. The trial court was therefore required by statute to sentence appellant to a term of imprisonment. Rather than sentencing appellant to a term of imprisonment and executing that sentence, the trial court sentenced appellant to a twenty-year term of imprisonment and suspended imposition of that sentence. The trial court lacked statutory authority to suspend the imposition of appellant’s sentence. Ark. Code Ann. § 5-4-301 (a)(1)(F). Therefore, the judgment and commitment order entered in case number 91-756 in December of 1991 was facially invalid.
Additionally, we conclude that habeas relief is proper in this case because in 1998, when the State petitioned to have the suspension of appellant’s sentence from case number 91-756 revoked, the trial court granted the State’s petition and erroneously imposed the invalid twenty-year sentence. Because the judgement and commitment order entered in January of 1998 was based on the facially invalid judgement and commitment order entered in 1991, we conclude that the twenty-year sentence that appellant is currently serving is illegal. Because the trial court exceeded its statutory authority by suspending imposition of appellant’s twenty-year sentence, and because the trial court erred in imposing a sentence from a facially invalid judgment and commitment order, we reverse the trial court’s order denying appellant’s petition and remand this case for resentencing. See Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992) (holding that if the original sentence is illegal, even though partially executed, the sentencing court may correct it).
In his second point on appeal, appellant contends that the sentences that he received in case numbers 91-756 and 91-617 were to have been served concurrently. Based on this argument, appellant contends that in 1998 when his suspended sentence was revoked in case number 91-756 the trial court should have deducted the time which he served in case number 91-617 from the twenty years which it imposed. Appellant’s argument is based on the principle that multiple sentences run concurrently unless the court orders the sentences to run consecutively. See Ark. Code Ann. § 5-4-403(a) (Suppl. 2001). A review of the judgment and commitment orders entered in case numbers 91-617 and 91-756 does not reveal whether the trial court intended that appellant’s sentences were to be served consecutively or concurrently. Thus, pursuant to Ark. Code Ann. § 5-4-403, we must assume that the sentences were to have been served concurrently. We conclude that the trial court erred when it imposed appellant’s suspended sentence in case number 91-756 without taking into consideration the time which appellant served in case number 91-617. Accordingly, upon remand and resentencing the trial court should reduce appellant’s sentence in case number 91-756 by the time which appellant served in case number 91-617. As previously noted, in December of 1991, appellant was sentenced to ten years’ imprisonment in case number 91-617. Appellant was paroled in April of 1993, and had his sentence in case number 91-617 discharged in July of 1996.
In his final point on appeal, appellant argues that his case is governed by principles articulated in Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983). In Hunter, we were asked to review various sentences imposed on a criminal defendant. The portion of the opinion upon which appellant relies involves the imposition of two competing sentences as punishment for one crime. Id. In Hunter, after discussing the applicable statutory provisions, we concluded that the trial court erred. Id. Specifically, we wrote:
Appellant was given an indefinite sentence to the Arkansas Juvenile Training School and, at the same time, the trial court attempted to suspend imposition of sentence. The crime was committed on April 29, 1980, and the statutes then in effect, Ark. Stat. Ann. 41-803(4) and 41-1204 (Repl. 1977) did not authorize a concurrent imposition of an indefinite sentence along with a suspension of imposition of an imprisonment sentence. The trial court could have provided for a sentence to imprisonment followed by suspension as to an additional term of imprisonment, Ark. Stat. Ann. 41-803(4) (Repl. 1977) or it could have provided for suspension of an imposition of a sentence of imprisonment and as an additional condition require confinement in a detentional facility for up to 90 days. Ark. Stat. Ann. 41-1204 (1), (3) (Repl. 1977). However, the trial court could not give an indefinite sentence coupled with a suspension of imposition of sentence. Thus, the court could validly grant one judgment or the other but not both. One judgment was the imposition of a sentence and the other was the suspension of the imposition of a sentence. The sentence imposed was served. We hold that when a court grants unauthorized dual judgments of sentence and one is imposed and served, and the other is the suspension of a sentence, there is an election by operation oflaw and the sentencing court has elected to order the sentence actually imposed. The other is void. Thus, the definite sentence to the Training School was valid and the suspension of the imposition of the sentence of imprisonment was void.
Hunter, supra, (emphasis added).
Based on the foregoing language, appellant argues that “when appellant discharged his ten-year-class-C felony on July 16,1996 [in case number 91-617], he was no longer bound by the twenty year suspended imposition of sentence [in case number 91-756] because the trial court elected by operation of law to impose the ten year class C felony.” Appellant’s argument is misplaced. Specifically, in appellant’s case, unlike in Hunter, unauthorized dual judgments were not entered. In the case now before us, two sentences were entered in two separate cases. The void or illegal sentence was entered in case number 91-756. This sentence is separate and distinct from the valid sentence entered in case number 91-617. Because unauthorized dual judgments were not entered in either of appellant’s cases, no operation oflaw occurred. Additionally, because there was no election by operation oflaw involved in appellant’s cases, the completion of the sentence in case number 91-617 does not operate to relieve appellant from serving a valid sentence for the crime to which he pleaded guilty in case number 91-756. Accordingly, appellant’s third point on appeal is without merit.
In his reply brief, appellant cites Rule 26.1 of the Arkansas Rules of Criminal Procedure, and seems to be arguing that his petition for habeas relief should have been granted because if he had known that his twenty^year sentence could not be suspended in case number 91-756, he would have withdrawn his guilty plea. We cannot consider appellant’s argument because he is attempting to raise a new argument in his reply brief. See City of Dover v. A. G. Barton, 342 Ark. 521, 29 S.W.3d 698 (2000) (holding we do not consider arguments made for the first time in appellant’s reply brief). Additionally, after reviewing appellant’s petition, we conclude that this argument was not presented to the trial court. Accordingly, we are precluded from considering this argument on appeal. See Tucker v. State, 336 Ark. 244, 983 S.W.2d 956 (1999) (holding we will not address arguments raised for the first time on appeal).
Reversed and remanded.
Glaze, Brown, and Imber, JJ., concur.
Rule 25.1 provides in part:
(a) A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right before it has been accepted by the court. A defendant may not withdraw his or her plea of guilty or nolo contendere as a matter of right after it has been accepted by the court; however, before entry of judgment, the court in its discretion may allow the defendant to withdraw his or her plea to correct a manifest injustice if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of his or her motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea. A plea of guilty or nolo contendere may not be withdrawn under this rule after entry of judgment.
(b) Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that:
(iv) he or she did not receive the charge or sentence concessions contemplated by a plea agreement and the prosecuting attorney failed to seek or not to oppose the concessions as promised in the plea agreement; or
(v) he or she did not receive the charge or sentence concessions contemplated by a plea agreement in which the trial court had indicated its concurrence and the defendant did not affirm the plea after receiving advice that the court had withdrawn its indicated concurrence and after an opportunity to either affirm or withdraw the plea.
Id. | [
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Annabelle Clinton Imber, Justice.
The City of Green-brier (“the City”) appeals from a circuit court order enjoining the City’s enforcement of subdivision regulations against a particular subdivision located outside the City’s corporate limits, but within its territorial jurisdiction. The order also awarded attorney’s fees to the subdivision’s owner. In its brief on appeal, the City fails to put forth any convincing argument or citation to authority. Because it is not apparent without further research that the City’s arguments are well-taken, we affirm.
In 1995, the City adopted Ordinance No. 06-95, which established subdivision regulations. Subsequently, on June 2,1997, the City adopted Ordinance No. 08-97. This ordinance, authorized by the provisions of Ark. Code Ann. § 14-56-413 (Repl. 1998), designated new boundary lines for the City’s exercise of territorial jurisdiction over city planning and subdivision development matters. Pursuant to Amendment 7 to the Arkansas Constitution, Ordinance No. 08-97 contained an emergency clause declaring that it would take effect immediately, that is, on June 2, 1997. On that date, two subdivisions affected by the extended boundary lines, Greystone and KC’s Kove, were being developed but had not yet filed plats with the Faulkner County Circuit Clerk and Ex-Officio Recorder.
Randy Garrett, the owner of KC’s Kove, filed the plat for KC’s Kove with the circuit clerk on June 3, 1997. Likewise, Greystone’s owners, Hal Crafton and Bill Tyler, filed the Grey-stone plat with the circuit clerk on June 5, 1997. Subsequently, on June 25, 1997, Ordinance 08-97 was filed with the circuit clerk.
Thereafter, the Greystone and KC’s Kove subdivisions continued to be developed. Neither subdivision, however, brought its roads up to the City’s specifications as set forth in the subdivision regulations adopted in 1995, Ordinance No. 06-95. Nonetheless, the City did not attempt to enforce its own subdivision regulations. Then, on May 6, 1999, Larry Roberts, filed a plat for a subdivision named Wooded Acres. Mr. Roberts had sold a lot to a third party who built a house on the lot and then sold it again. The house was complete except that it lacked a water meter. When Mr. Roberts attempted to get city water service, the City refused to install a water meter because the subdivision had not been approved by the City’s planning commission. As a result, he went before the planning commission and learned that the roadbed in Wooded Acres was not wide enough; that is, the roadbed did not meet the City’s subdivision regulations. Eventually, Mr. Roberts agreed to bring the roads into compliance with the City’s requirements.
In the meantime, however, Mr. Roberts found out that the roads in the Greystone and KC’s Kove subdivisions were also out of compliance with the City’s established regulations. He appeared before the Greenbrier City Council and asked for an exemption from the road-size regulations. The City Council refused to grant his request, whereupon Mr. Roberts promptly filed suit alleging that the City applied its subdivision regulations in an arbitrary and capricious manner and in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In his request for relief, Mr. Roberts asked the circuit court to enjoin the City from enforcing its subdivision regulations against the Wooded Acres subdivision.
The circuit court conducted a hearing on the matter and ruled that the City had indeed enforced its ordinance in an arbitrary and capricious manner. The circuit court enjoined the enforcement of the City’s subdivision regulations against the Wooded Acres subdivision. In addition, the court ordered the City to pay attorney’s fees in the amount of $4,368.75.
On appeal, the City proposes five points for reversal that in essence comprise three assignments of error: (1) the trial court erred in holding that Ordinance No. 08-97 was enforceable against the two subdivisions, Greystone and KC’s Kove, whose plats were recorded after the ordinance was adopted but before it was recorded with the circuit clerk pursuant to Ark. Code Ann. § 14-56-313 (b)(2) (Repl. 1998); (2) the trial court erred in concluding that the City acted arbitrarily and capriciously in seeking to enforce its subdivision regulations against Wooded Acres while never attempting to enforce them against either Greystone or KC’s Kove; and (3) the trial court erred in awarding attorney’s fees. The City offers neither a citation nor convincing argument for its assignments of error.
As we have said many times, when the appellant does not cite any authority, nor make a convincing legal argument, and where it is not apparent without further research that the point is well taken, we will affirm. We will not do the appellant’s research for him. Granquist v. Randolph, 326 Ark. 809, 934 S.W.2d 224 (1996); Firstbank of Arkansas v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993). Here, the City in its brief, which consists of five individual points spanning a total of seven pages, adduces no case law or other authority for its contentions. For example, the City opens each point on appeal by stating, “[t]he standard of review for this issue is whether the circuit court judge was ‘clearly erroneous.’ ” Not once in its five-time recitation of the standard of review does the City support its position with citation to authority. It is impossible for this court to conduct a meaningful review in a case where the appellant offers no authority or convincing argument to support allegations of error.
In sum, we affirm the trial court’s ruling because of the City’s failure to demonstrate reversible error. Qualls v. Ferritor, 329 Ark. 235, 947 S.W.2d 10 (1997).
Affirmed.
Randy Garrett was a member of the Greenbrier Planning Commission.
When the instant case was filed, Hal Crafton and Carlton Burnett owned Greystone. | [
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Per Curiam.
The appellant, through his attorney, Jack R. Kearney, timely filed a notice of appeal and designation of record on January 3, 2003. The appellant tendered a partial record on April 30, 2003, which the clerk refused to accept because it was not tendered in conformance with Ark. R. App. P. — Civ. 5(a) and (b) (2002).
The appellant filed his first motion for rule on clerk, which was denied in a per curiam on June 12, 2003. In our per curiam, we directed Mr. Kearney to file a motion and affidavit accepting full responsibility for not timely filing the record in this case. The appellant has now filed with this court a second motion for rule on the clerk and has attached an affidavit from Mr. Kearney in which he accepts responsibility for the late tender of the record.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Thornton, J., not participating. | [
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W.H. “Dub” Arnold, Chief Justice.
Appellant Gary Hunt was charged with possession of cocaine, possession of drug paraphernalia, felon in possession of a firearm, and simultaneous possession of drugs and firearm. Hunt was convicted only of possession of cocaine, felon in possession of a firearm, and simultaneous possession of drugs and a firearm. He was sentenced to concurrent prison terms of ten years for the possession of cocaine, five years for felon in possession of a firearm, and five years for simulta neous possession of drugs and a firearm. This case comes to this court by a petition for review. When this court grants a petition to review a decision by the court of appeals, this court reviews the appeal as if it had been originally filed in this court. Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002). Hunt brings two points on appeal: (1) whether the trial court erred in declining to direct a verdict on the charges of felon in possession of a firearm and simultaneous possession of drugs and firearms, because the “firearm” in question did not meet the statutory definition of a firearm due to its degraded condition; and (2) whether as a matter of fundamental error, the trial court erred in declining to direct a verdict on the charge of possession of cocaine and simultaneous possession of drugs and firearms, because the State did not prove that the cocaine in question was a useable amount under Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990). We affirm.
At trial, the State presented four witnesses: Lieutenant Hayward Finks, Detective Troy Ellison, Detective Willie Thomas, and State Crime Lab Analyst Lori Stacks. Officer Hayward Finks testified that he was patrolling with other officers on October 11, 2001, in an area where there had been complaints of narcotics activity. Officer Finks testified that he observed Hunt standing in an alley and holding a rifle. The officers drew their weapons and ordered appellant to drop the gun, and he complied. Hunt was then arrested and searched. Officer Finks testified that when he saw the gun it was muddy, rusty, and had mud in the barrel.
Detective Troy Ellison testified substantially the same as Lieutenant Finks regarding the initial contact with Hunt. Ellison stated that the gun was muddy and rusty with mud in the barrel; and, Ellison testified that he did not know whether the gun was able to be shot. However, Detective Ellison testified that he searched Hunt and found a matchbox with a white rock-like substance in it.
The State’s third witness, Detective Willie Thomas, testified much to the same regarding Hunt’s initial contact with the police officers. Thomas testified that the gun was muddy, rusty, and that if he was going to fire a gun, he would not choose that particular gun. The State’s final witness was Arkansas State Crime Lab analyst Lori Stacks. Stacks, a chemist, examined the rock-like substance seized from Hunt. Stacks testified that the substance testified positive for cocaine; however, Stacks did not testify to the weight of the substance.
After the State rested its case, the defense moved for a directed verdict as to all four charges. The trial court granted the defense’s motion as to the paraphernalia charge because the State had lost the item in question and descriptions of the item varied. The defense then presented two witnesses, Marchelio Robinson and Samuel Johnson. Both men indicated that they were longtime friends of Hunt, but they never knew him to own a firearm. After these defense witnesses, the defense counsel renewed its motion for directed verdict; however, the renewed motions were denied.
At the close of all the evidence, the trial court found Hunt guilty of the remaining three offenses: simultaneous possession of drugs and firearms, felon in possession of a firearm, and possession of cocaine. At a separate sentencing proceeding, the trial, court sentenced Hunt to ten years for the simultaneous possession offense, and ten years for the felon possession of cocaine offense, and five years for felon in possession of a firearm offense. The trial court ran the sentences concurrently. Appellant filed a timely notice of appeal.
For his first point on appeal, Hunt argues that the trial court erred in not granting his directed-verdict motion on the charges of felon in possession of a firearm and simultaneous possession of drugs and firearm. Hunt contends that the firearm which he was in possession of did not meet the statutory definition of a firearm due to its degraded condition. We disagree.
At the close of the State’s case, Hunt moved for a directed verdict with regard to two specific issues. First, appellant asserted that because the State had not produced the actual physical item seized from Hunt that subsequently tested positive for cocaine at the crime lab, the State had not adduced substantial evidence with regard to the paraphernalia charge. The trial court granted this motion. However, appellant also moved for a directed verdict with regard to the charges of felon in possession of a firearm and simultaneous possession of drugs and a firearm. The specific issue raised by Hunt was that the rifle which appellant was accused of possessing did not meet the statutory definition of a firearm. Appellant renewed that motion at the close of all the evidence.
The standard of review in cases challenging the sufficiency of the evidence is well established. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002); Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that 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. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001).
The basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Thomas v. State, 315 Ark. 79. 864 S.W.2d 835 (1993); Mountain Home Sch. Dist. v. T.M.J. Builders, Inc., 313 Ark. 661, 858 S.W.2d 74 (1993). In interpreting a penal statute, “[i]t is well settled that penal statutes are strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed.” Hales v. State, 299 Ark. 93, 94, 771 S.W.2d 285, 286 (1989). However, even a penal statute must not be construed so strictly as to defeat the obvious intent of the legislature. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988). In this regard, we will not construe penal statutes so strictly as to reach absurd consequences which are clearly contrary to legislative intent. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Williams v. State, 292 Ark. 616, 732 S.W.2d 135 (1987); Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986).
Arkansas Code Annotated § 5-1-102(6) states:
(6) “Firearm” means any device designed, made, or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use, including such a device that is not loaded or lacks a clip or other component to render it immediately operable, and components that can readily be assembled into such a device.
Ark. Code Ann. § 5-1-102(6) (Supp. 2001). Hunt argues that the testimony from the three police officers indicate that this was not a firearm. Hunt concedes that the General Assembly did not intend to require that a firearm be immediately operable in all instances; however, Hunt states as a purely practical matter, there must be some temporal limit on what may be considered a firearm. Hunt maintains that a firearm is a piece of metal, or combination of metal and work, depending on the gun. Both wood and metal degrade over time; thus, at some point a gun will reach a point at which it loses its essential characteristics of a gun. Hunt argues that the State’s own witnesses uniformly testified that the gun was rusted and was covered with mud and dirt. Two of the three officers stated that they could not tell whether the gun would shoot at all. One of the officers said that he would not fire the gun. Hunt argues that this is not the sort of item that the General Assembly ever intended the State to bring under a firearm.
However, a plain reading of the statute reveals that the definition’s dependent clause makes clear that it is immaterial whether the firearm-device is loaded or lacks a component, such as a clip or magazine, that could make it capable of expelling a projectile. Thus, once a device is made for the purpose of expelling a projectile by the action of an explosive, it meets the statutory definition of a firearm. Hunt does not argue that the rifle he possessed was not designed to expel a projectile by the action of an explosion; but argued that the rifle was not “immediately operable.” Had the legislature intended Hunt’s temporal meaning of a firearm, it could have simply defined a firearm as a device only capable of expelling a projectile. Since the firearm in question was designed to be used in a manner consistent with Ark. Code Ann. § 5-1-102(6), the rifle is a firearm within the ordinary meaning of the word used by the legislature. S.T. and C.B. v. State, 318 Ark. 400, 885 S.W.2d 885 (1994).
For Hunt’s second point on appeal, he challenges the sufficiency of the evidence with regard to the quantity of cocaine that Hunt possessed on the night of October 11, 2002. Hunt concedes that this argument was not raised below, but contends that the argument should be considered under the doctrine of plain or fundamental error. Hunt cites United States v. Olano, 507 U.S. 725 (1993), for the proposition that in federal court, a balance is struck between requiring contemporaneous objections versus protecting an accused by affording relief of his substantial rights have been injured. Hunt also cites to Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), where Harbinson was found to be in possession of a bottle containing cocaine dust, but the substance was too small to weigh with the state crime lab equipment, which could weigh nothing smaller than one milligram.
Notwithstanding, this argument was not raised below; arguments may not be raised for the first time on appeal. Hinston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000). Any possible prejudice would have been properly cured by an admonition to the jury, which was also not requested on this issue. See Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994); Stanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994). We, therefore, affirm the trial court’s ruling.
Affirmed.
Imber, J., concurs.
Brown, J., not participating. | [
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Per Curiam.
Mark S. Fraiser, a state-salaried, full-time public defender for the Eighteenth Judicial District East, was appointed by the trial court to represent Appellant, Raymond Walters, an indigent defendant, on the charge of rape, a Class Y Felony. Following a trial, Walters was convicted of the charge and sentenced to life. A notice of appeal was timely filed and the record has been timely lodged in this court.
Mr. Fraiser now asks to be relieved as counsel for Appellant in this criminal appeal, based on the case of Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). There, this court determined that state-salaried, full-time public defenders were ineligible for compensation by the court for work performed in the appeal of a matter in which the public defender represented the defendant. Mr. Fraiser also relies on the case of Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000) (per curiam), wherein this court relieved the appellant’s court-appointed public defender and appointed new counsel on appeal under similar circumstances.
Since the time of those decisions, however, the law was changed by the General Assembly. Particularly, Act 1370 of 2001 provided in part: “Persons employed as full-time public defenders who are not provided a state-funded secretary, may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals.” That provision is now codified as Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2001).
Mr. Frasier’s motion does not state whether he is provided a state-funded secretary. Accordingly, we must deny his motion at this time. See Mills v. State, 347 Ark. 695, 66 S.W.3d 643 (2002) (per curiam). Mr. Frasier may resubmit his motion, providing information about whether he is provided a state-funded secretary, in order for us to determine whether he qualifies for dismissal in light of section 19-4-1604(b)(2)(B).
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Donald L. Corbin, Justice.
Appellant Rodney Parker Owens was charged in the Benton County Circuit Court with the offense of attempting to evade or defeat the payment of tax, a Class C felony, in violation of Ark. Code Ann. § 26-18-201 (Repl. 1997). The jury convicted him of the lesser-included offense of failure to pay tax, a Class D felony, in violation of Ark. Code Ann. § 26-18-202 (Repl. 1997). He was sentenced to pay a $10,000 fine, plus $150 in court costs. He raises seven points for reversal, three of which are issues of first impression in this state. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. l-2(b)(l). We find no error and affirm.
Because Appellant does not challenge the sufficiency of the evidence to convict him, it is not necessary to recite the facts in great detail. Suffice it to say that on August 12, 1997, Appellant purchased a 1989 Vogue IV, thirty-seven-foot motor home in Pryor, Oklahoma. Appellant and his wife resided in Arkansas at the time. He did not register and license the motor home with the State of Arkansas. Instead, he registered the vehicle with the State of Oregon. At the time, Oregon law did not require the payment of any tax upon registering a motor home; however, Arkansas law did. It is undisputed that Arkansas law in effect at the time of purchase required Appellant to register and license the vehicle within twenty days after its purchase, which would have been September 2, 1997. The tax owed on the vehicle would have been due at the time of registration.
On March 22, 1999, after reading a newspaper article stating that it was wrong for an Arkansas resident to register a vehicle in another state, particularly Oregon, Appellant contacted the revenue department and transferred the registration of the motor home to Arkansas. He also obtained an Arkansas license plate for the vehicle. He did not, however, pay the outstanding tax due on the motor home. Around this time, the Arkansas State Police began investigating Arkansas residents who were registering vehicles in Oregon. The investigation eventually led to Appellant’s arrest on December 13, 2001. At the time, Appellant was a district judge for the district court of Benton County West and was also a municipal judge for several cities.
A criminal information was filed on the date of his arrest, charging Appellant with the Class C felony of attempting to evade or defeat the payment of sales tax on the motor home. On June 2, 2002, the charge was amended to the Class C felony of attempting to evade or defeat the payment of use tax. In the interim, on April 12, 2002, Appellant paid the tax owed plus interest. Appellant was tried before a jury and was convicted of the lesser-included charge of failure'to pay tax. The judgment was entered on August 6, 2002. Appellant filed a timely notice of appeal and now raises seven allegations of error.
I. Statute of Limitations
For his first point for reversal, Appellant argues that the trial court erred in applying the six-year statute of limitations found in Ark. Code Ann. § 26-18-306(j) (Repl. 1997), rather than the general three-year statute of limitations for Class C felonies, found in Ark. Code Ann. § 5-l-109(b)(2) (Repl. 1997). He contends that if the three-year period controls, the prosecution was not timely commenced. If, on the other hand, the six-year limitations period controls, his prosecution was timely commenced. This court has not heretofore interpreted the limitations period in section 26-18-3060). We now hold that the trial court was correct to apply this limitations period.
Section 26-18-306, titled “Time limitations for assessments, collection, refunds, and prosecution,” provides in pertinent part:
0) No person shall be prosecuted, tried, or punished for any of the various criminal offenses arising under the provisions of any state tax law unless the indictment of the taxpayer is instituted within six (6) years after the commission of the offense.
Section 5-l-109(b)(2), on the other hand, provides that prosecutions for Class C felonies must be commenced within three years. During the hearing below, Appellant contended that the general limitations period found in section 5-1-109 should govern, while the prosecutor argued that the more specific provision found in section 26-18-306, which is included in the chapter on state tax law, should control.
The trial court agreed with the prosecutor, finding that the plain language of section 26-18-3060) applied to the charge of willful tax evasion against Appellant. The trial court found significant that section 26-18-3060) specifically applied to criminal prosecutions under the provisions of any state tax law. The court also found significant the fact that section 26-18-3060 was enacted four years after section 5-1-109 and that Ark. Code Ann. § 26-18-103 (Repl. 1997) specifically provides that in the event of a conflict with any state law, the provisions of that chapter shall control. We affirm this ruling.
It is a well-settled principle of law that a general statute does not apply when a specific one governs the subject matter. See, e.g., Ozark Gas Pipeline Corp. v. Arkansas Pub. Serv. Comm’n, 342 Ark. 591, 29 S.W.3d 730 (2000); L.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998); Williams v. City of Pine Bluff, 284 Ark. 551, 683 S.W.2d 923 (1985); Ridgeway v. Catlett, 238 Ark. 323, 379 S.W.2d 277 (1964). Section 26-18-3060 specifically provides a six-year limitations period for prosecutions for “any of the various criminal offenses arising under the provisions of any state tax law.” “State tax law” means, inter alia, laws contained in Chapter 18 of Title 26 of the Arkansas Code. See Ark. Code Ann. § 26-18-104(13) (Repl. 1997). Appellant was charged with violating one of those “state tax laws,” specifically with willfully attempting to evade or defeat payment of a tax, as provided in section 26-18-201. Accordingly, his prosecution is governed by the six-year statute oflimitations provided in section 26-18-3060. If this conclusion was not clear enough from the plain language of the foregoing provisions, it is made eminently clear from the language in section 26-18-103, which provides in part that “in the event of conflict with any state law, this chapter shall control.” (Emphasis added.) We thus affirm the trial court’s ruling on this point.
II. Motion to Dismiss .
For his second point on appeal, Appellant argues that the trial court erred in denying his motion to dismiss because his conduct was not of the type prohibited by Chapter 18 of Title 26. Rather, he asserts that the provisions of Chapter 18 specifically do not apply to the failure to pay tax due on a vehicle. To support his argument, he relies on Ark. Code Ann. § 26-18-102 (Repl. 1997), which provides in pertinent part:
The purpose of this chapter is to provide, as far as possible, uniform procedures and remedies with respect to all state taxes except the following:
(1) Certificates of Title — Registration — Anti Theft Provision, § 27-14-101 et seq.; [Emphasis added.]
Appellant asserts that an individual only has a legal duty to pay sales or use tax upon a vehicle when registering that vehicle pursuant to our registration laws contained in Chapter 14 of Title 27 of our Code. The essence of his argument is that the act of registration was the mechanism that triggered the legal obligation to pay use tax. Thus, he claims that he could not be charged under section 26-18-201 for willfully attempting to evade paying the use tax, because it arose pursuant to his duty to register the vehicle. This issue is one of first impression, as this court has yet to interpret section 26-18-102.
The State asks us to affirm on this point because Appellant has failed to cite to any legal authority or make any convincing argument to support this point. Notwithstanding this failure, the State asserts that the trial court did not err in denying Appellant’s motion to dismiss because it is clear that Appellant was not charged for violating the registration laws. Rather, he was charged with willfully attempting to evade the payment of use tax, pursuant to Ark. Code Ann. § 26-53-126 (Repl. 1997). We agree.
This court has made it exceedingly clear that it will not consider an assignment of error when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. See, e.g., Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2003); Wooten v. State, 351 Ark. 241, 91 S.W.3d 63 (2002); Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001). Appellant has cited nothing other than the statutes noted above to support his position, and he has failed to make any convincing argument on the issue, other than to state that to include his conduct under section 26-18-201 “would create the possibility of owners ofnon-moving vehicles being subjected to felony prosecutions.”
Moreover, it is not otherwise apparent that his argument on this point is well taken. Appellant was not charged with having violated a provision of the vehicle-registration laws, such as the failure to register his motor home. Instead, as the State points out, he was charged with having willfully attempted to evade paying use tax on his motor home, pursuant to section 26-53-126, which provides in pertinent part:
(a)(l)(A)(i) All new and used motor vehicles, trailers, or semitrailers required to be licensed in this state shall, upon being registered in this state, be subject to the tax levied herein and all other use taxes levied by the state irrespective of whether such motor vehicle, trailer, or semitrailer was purchased from a dealer or an individual. I
(2) (A) The tax levied herein and all other use taxes levied by the state shall be paid on or before the time for registration as prescribed by § 27-14-903(a).
The taxes provided for in this section are not exempt from the statute under which Appellant was charged. Accordingly, his argument on appeal is not well taken. We agree with the State that the prosecution’s theory was not that appellant failed to register his motor home with the State of Arkansas, but that he failed to register it as part of a scheme to willfully evade the payment of the use tax. Thus, his act of failing to register the vehicle was, under the circumstances, merely evidence of his willful purpose to evade the payment of use tax under section 26-53-126. We thus affirm on this point.
III. Motion for Trial Judge to Recuse
For his third point, Appellant argues that it was error for the trial judge to refuse to recuse himself from Appellant’s case. During the proceedings below, Appellant initially contended that the trial judge should disqualify himself because Appellant had expressed an interest in running for circuit judge in 2002, either for the position occupied by the trial judge or for that position occupied by the trial judge’s wife. He later abandoned these claims and, instead, argued that the trial judge should recuse because Appellant was a sitting judge in the same county. Appellant voiced his concern that the tremendous amount of pretrial publicity had put an impossible burden on the trial judge to make sure that Appellant was treated like any other criminal defendant, and this burden would, in turn, have the effect of tipping the scales of justice against Appellant. There is no merit to this argument.
A trial judge has a duty not to recuse from a case where no prejudice exists. Worth v. Benton County Cir. Court, 351 Ark. 149, 89 S.W.3d 891 (2002). Thus, if there is no valid reason for the judge to disqualify himself or herself, he or she has a duty to remain on a case. Id. There is a presumption that judges are impartial. Irvin v. State, 345 Ark. 541, 49 S.W.3d 635 (2001); Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001); Judicial Discipline & Disab. Comm’n v. Thompson, 341 Ark. 253, 16 S.W.3d 212 (2000); Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996). The person seeking disqualification bears the burden of proving otherwise. Thompson, 341 Ark. 253, 16 S.W.3d 212; Turner, 325 Ark. 237, 926 S.W.2d 843. The trial judge’s decision not to recuse from a case is a discretionary one and will not be reversed on appeal absent an abuse of that discretion. Irvin, 345 Ark. 541, 49 S.W.3d 635; Davis, 345 Ark. 161, 44 S.W.3d 726. An abuse of discretion can be shown by proving bias or prejudice on the part of the trial judge. Id. To decide whether there has been an abuse of discretion, this court reviews the record to determine if prejudice or bias was exhibited. Irvin, 345 Ark. 541, 49 S.W.3d 635; Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001). It is the appellant’s burden to demonstrate such bias or prejudice. Id.
In the present case, the trial judge denied Appellant’s motion to recuse. The judge found that there was no basis for récusal and that there was no evidence in the record that the judge and Appellant had ever been political opponents or rivals. The judge found further that there was nothing in the record to show that he and Appellant had ever spoken a harsh word to one another.
On appeal, Appellant does not take issue with the factual basis for the judge’s decision to remain on the case. Nor does he claim that the trial judge was actually biased or prejudiced against him during the course of the proceedings. Instead, he argues that for a judge to hear a case regarding another judge, when both preside in the same county, impairs the impartiality owed to Appellant in this case. Thus, as the State points out, Appellant appears to be inviting us to announce a perse rule that a judge must recuse from any case in which another judge in the same county is a criminal defendant. We decline this invitation, and we affirm the trial court’s ruling, as it is correct under our case law. .
IV Selective Prosecution
For his fourth point on appeal, Appellant argues that the trial court erred in denying his motion to dismiss for selective prosecution without first holding a hearing. In his motion, Appellant argued that the prosecutor was discriminating against him by prosecuting him while other persons similarly situated had not been prosecuted. He alleged that the prosecutor’s motivation for pursuing the charge stemmed from animosity held by the Arkansas State Police (ASP), the agency that instigated and investigated the charges against Appellant. It was Appellant’s theory that ASP felt that he was too lax as a judge on certain cases, especially DWIs, brought by ASP. Similarly, he theorized that the prosecutor’s bias was evident from the fact that his office had asked Appellant to recuse from all county cases brought before him following his arrest. He thus claims that he made a sufficient showing of selective prosecution to entitle him to a hearing on the issue.
The prosecutor, on the other hand, contended that a claim of selective prosecution required a showing of two elements: (1) proof that the government had singled Appellant out for prosecution while others similarly situated were not prosecuted; and (2) proof that Appellant’s being singled out was based on an impermissible motive, such as race, religion, or the exercise of constitutional rights. See United States v. Wilson, 806 F.2d 171 (8th Cir. 1986). The prosecutor contended that Appellant’s proof fell short on both elements, especially regarding the second element.
The trial court agreed with the prosecutor that Appellant had not made a prima facie showing of selective prosecution as defined by both state and federal case law. The trial court rejected Appellant’s claim that he was not able to make a prima facie showing as to the first element, as he had not been provided with sufficient information from the prosecutor’s office concerning other persons in the county who had purchased a vehicle and registered it with the State of Oregon. The trial court pointed out that Appellant had been given information concerning the investigation of at least eleven such persons, and that Appellant had not even shown that those persons were similarly situated to Appellant. The trial court ruled that it would not grant a hearing for the purpose of conducting further investigation.
Finally, the trial court was persuaded that Appellant had absolutely failed to prove the second element, that he was being discriminated against because he was the member of a constitutionally protected class or was otherwise engaged in constitutionally protected conduct. The trial court found that judges are not a specific class, anymore than lawyers or police officers are. The court observed that state and federal cases make it clear that there must be proof that the selective nature of the prosecution was based upon race, gender, or religion, or that the prosecution was brought because the person was exercising a constitutional right, such as freedom of speech, religion, expression, or assembly. The court concluded that no such showing had been made in this case.
One of the cases relied on by the trial court is Poe v. State, 251 Ark. 35, 470 S.W.2d 818 (1971), There, the appellant asked this court to reverse his convictions because his rights to equal protection and due process were violated. The appellant claimed that he was the victim of selective prosecution, based on the trial judge’s statement that he had no prior experience with the statute under which the appellant was charged. This court rejected the appellant’s claim, holding:
The most that can be said is that there may have been some laxity in the enforcement of the act. In other jurisdictions laxity in enforcement, even though without apparent excuse, has been held insufficient to render application of such a statute to an individual defendant a denial of equal protection or due process of law, in the absence of any showing of arbitrary or capricious action or of a wilful intention to discriminate. It has been said that failure of a prosecutor to enforce the law as to some persons should not be converted into a defense for others charged with crime. The United States Court of Appeals for the Fifth Circuit stated that it had never been held that one who is guilty of a crime cannot be punished merely because others equally guilty had not been prosecuted or convicted. The Supreme Court of the United States [in Oyler v. Boles, 368 U.S. 448 (1962)] has held that even conscious selectivity in enforcement of such an act which is not based upon unjustifiable standards or arbitrary classification does not offend against constitutional equal protection and due process standards.
Id. at 37-38, 470 S.W.2d at 820 (citations omitted) (emphasis added).
Similarly, our court of appeals has held that although equal protection of the laws necessarily extends to their application, the conscious exercise of some selectivity in enforcement is not, in and of itself, a constitutional violation. See Mitchell v. State, 12 Ark. App. 263, 675 S.W.2d 373 (1984). The Mitchell court relied on the following holding from the Supreme Court’s decision in Oyler v. Boles, 368 U.S. 448 (1962):
Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged.
Id. at 266, 675 S.W.2d at 375 (emphasis added) (quoting Oyler, 368 U.S. at 456).
None of the cases from this court or the court of appeals has dealt with the specific issue raised by Appellant, regarding the showing that must be made before a hearing on the issue is required. It is thus an issue of first impression in this state. Appellant relies on the Eighth Circuit’s decision in Wilson, 806 F.2d 171, wherein the court held:
The burden on a selective prosecution claim falls heavily on the defendant. To establish a prima facie case a defendant must show that the government singled him out for prosecution while others similarly situated were not prosecuted for similar conduct and that the government’s action in thus singling him out was based on an impermissible motive such as race, religion or the exercise by defendant of constitutional rights. If such showing is made, the burden shifts to the government to disprove defendant’s case at an evidentiary hearing. Before a hearing is mandated, however, a defendant’s claim must be supported by specific factual allegations that take the motion past a frivolous phase and raise a reasonable doubt as to the prosecutor’s purpose. In this case defendant has failed to provide a specific factual basis for his claim. It was not error for the district court to deny defendant’s motion to dismiss for selective prosecution without a hearing.
Id. at 176 (citations omitted) (emphasis added). See also United States v. Larson, 612 F.2d 1301 (8th Cir.), cert. denied, 446 U.S. 936 (1980).
We agree with Appellant that the test used by the Eighth Circuit in Wilson is sound, and we hereby adopt it. However, that is where our agreement with Appellant ends. Applying the Eighth Circuit’s test to the present case, we must conclude that the trial court did not err in denying Appellant’s request for an evidentiary hearing. It is clear from the record that Appellant essentially asked the trial court to hold a hearing to determine if there were facts that would support his allegation of selective prosecution. In this respect, Appellant has put the cart before the horse. The holding in Wilson makes clear that there must be a specific factual basis for the claim before the court is required to hold an evidentiary hearing, not the other way around. Appellant’s motion to dismiss does not reflect any such specific facts that would support either prong of a selective-prosecution claim. Accordingly, we affirm the trial court’s denial of his motion to dismiss.
V. Excusing Potential Jurors for Cause
For his fifth point, Appellant argues that the trial court erred in excusing for cause two prospective jurors who had been delinquent in paying their personal property taxes with the county. Both prospective jurors stated that they were not aware of the delinquency until being asked about it by the trial court. Both then told the trial court that they intended to pay the taxes. Both also stated that the fact that they were delinquent in paying their taxes would not interfere with their ability to sit on Appellant’s case and that they could follow the law as instructed. Despite these latter statements, the prosecutor moved to excuse the jurors for cause on the ground that the fact that they had failed to pay their taxes could cloud their judgment if they were to be selected to sit on Appellant’s case.
The trial court granted the prosecutor’s motion to strike the jurors on the ground of implied bias. The trial court found credible the prospective jurors’ statements that they were not aware of the delinquency. The trial court then concluded that this unawareness would make it very difficult for them to weigh the evidence against Appellant, especially since the court anticipated that Appellant would present evidence that his actions were likewise inadvertent and not willful. We find no error with the trial court’s ruling.
Unlike actual bias, implied bias arises by implication of law. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984), cert. denied, 470 U.S. 1062 (1985); Henslee v. State, 251 Ark. 125, 471 S.W.2d 352 (1971). Arkansas Code Annotated § 16-33-304(b)(2)(B) (Repl. 1999) provides that a prospective juror may be challenged for implied bias, and it lists seven examples, none of which would apply to the trial court’s ruling in this case. This court has held that section 16-33-304 and its predecessors must be construed liberally in criminal cases to insure the defendant’s constitutional right to a trial by an impartial jury. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). See also Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986); Linell, 283 Ark. 162, 671 S.W.2d 741.
Appellant acknowledges the requirement of liberal construction. He also acknowledges this court’s holding in Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6, cert. denied, 454 U.S. 1093 (1981), that a trial court has discretion to excuse a juror for implied bias, even if the bias does not clearly fall within one of the statutorily provided categories, as it would be impossible for the statute to cover every conceivable circumstance touching on a juror’s possible bias. See also Roderick, 288 Ark. 360, 705 S.W.2d 433. Notwithstanding, he argues that the reason for the exclusion of the prospective jurors in this case came “nowhere near the statute, liberally or otherwise.”
In contrast, the State contends that the trial court’s ruling was not an abuse of discretion and that, furthermore, Appellant’s argument should be rejected because he has failed to show that the trial court’s ruling prejudiced him in any way. The State submits that a showing of prejudice is necessary under this court’s cases, because a party is not entitled to have a particular juror seated on his or her case. We agree with the State on this point.
This court has repeatedly held that a party is not entitled to the services of a particular juror, beginning with Hurley v. State, 29 Ark. 17 (1874). There, the appellant argued that he was entitled to a new trial because the trial court had erroneously disqualified a prospective juror on the ground that he was not a registered elector. This court rejected the appellant’s argument:
But whether the court was right or wrong in this, it is not material to decide, for if wrong, the erroneous rejection of a talesman would be no sufficient cause for granting the appellant a new trial. He had no legal right to have that particular person as a juror. The court might have excused the talesman from serving on the jury for any cause deemed sufficient, in its discretion, without legal prejudice to the appellant.
Id. at 22 (emphasis added). See also Ruiz, 273 Ark. 94, 617 S.W.2d 6; Strode v. State, 259 Ark. 859, 537 S.W.2d 162 (1976); Satterfield v. State, 252 Ark. 747, 483 S.W.2d 171 (1972); Lewis v. Phillips, 223 Ark. 380, 266 S.W.2d 68 (1954). This court has explained:
It is thoroughly settled that a defendant has no right to the services of any particular juror. He may only demand that he be tried before a fair and impartial jury, and it is difficult to imagine a case where the judge had excused a juror from further service on the regular panel which would afford any defendant just cause of complaint.
Sullivan v. State, 163 Ark. 11, 14, 258 S.W. 643, 644-45 (1924) (emphasis added). See also Adams v. Arkansas State Hwy. Comm’n, 235 Ark. 837, 362 S.W.2d 425 (1962); Hallum v. Blackford, 202 Ark. 544, 151 S.W.2d 82 (1941); Harrison v. State, 200 Ark. 257, 138 S.W.2d 785 (1940).
Furthermore, it has long been the position of this court to refuse to reverse the trial court’s decision to strike a prospective juror for cause absent a showing of prejudice. As far back as Decker v. Laws, 74 Ark. 286, 85 S.W. 425 (1905), this court indicated that it would only reverse for the erroneous rejection of a prospective juror where prejudice is shown. Prejudice is demonstrated by showing that because of the trial court’s action, “some biased or incompetent juror was thrust upon” the appellant. Id. at 288, 85 S.W. at 426. This requirement of prejudice has consistently been required by this court. See, e.g., Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002); Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994); Ruiz, 273 Ark. 94, 617 S.W.2d 6; Strode, 259 Ark. 859, 537 S.W.2d 162; Satterfield, 252 Ark. 747, 483 S.W.2d 171; Lewis, 223 Ark. 380, 266 S.W.2d 68.
Here, Appellant has failed to show that the trial court abused its discretion in excusing the two prospective jurors for implied bias, based on the fact that they had just been made aware that they were delinquent in paying their personal property taxes. Even though the reason for their being excused is not among the examples set out in section 16-33-304, we apply that statute liberally to achieve the purpose of seating a fair and impartial jury. In any event, even if the trial court’s rejection of these two jurors was erroneous, we would nonetheless affirm because Appellant has failed to show that he was prejudiced in that their rejection resulted in his having biased or partial jurors thrust upon him. We thus affirm the trial court’s ruling on this point.
VI. Lesser-included Offense
For his sixth point for reversal, Appellant argues that the trial court erred in refusing to instruct the jury on the misdemeanor offense of operating a vehicle without a license plate, as provided in Ark. Code Ann. § 27-14-304 (Repl. 1994). He contends that the offense is a lesser-included offense. The State argues that the trial court’s ruling was not error because operating a vehicle without a license plate is not a lesser-included offense of tax evasion. We agree with the State.
The determination of when an offense is included in another offense depends on whether it meets one of the three tests set out in Ark. Code Ann. § 5-1-110(b) (Repl. 1997). McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002). That section provides:
(b) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(2) It consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.
Appellant asserts that the charge of operating a vehicle without a license is a lesser-included offense under subsections (1) and (3). We disagree.
Appellant was charged with willfully attempting to evade or defeat the payment of tax, in violation of section 26-18-201(a). The jury was instructed: “To sustain this charge, the State must prove beyond a reasonable doubt that: Rodney Owens willfully attempted to evade or defeat the payment of any tax, penalty, or interest due under any state tax law.” Appellant was actually convicted of the lesser charge of willfully failing to pay tax, in violation of section 26-18-202. On this charge, the jury was instructed: “To sustain this charge, the State must prove beyond a reasonable doubt 1) that Rodney Owens was required to pay a tax to the State of Arkansas, and 2) Rodney Owens willfully failed to pay that tax.”
The offense that Appellant asserts should have been given to the jury, operation of a vehicle without a license plate, is found in section 27-14-304, which provides in pertinent part:
(a) No person shall operate, nor shall an owner knowingly permit to be operated, upon any highway any vehicle required to be registered under this chapter unless there shall be attached thereto and displayed thereon, when and as required by this chapter, a valid license plate issued therefor by the office for the current registration year, except as otherwise expressly permitted in this chapter. [Emphasis added.]
To sustain this charge, the State would have to prove that (1) the vehicle was operated upon any highway, either by the person charged or by another which the owner of the vehicle knowingly permits, and (2) that the vehicle is being operated without a valid license plate attached thereto.
To qualify as a lesser-included offense under section 5-l-110(b)(l), the lesser charge must be established by proof of the same or less than all the elements required to establish the commission of the offense charged. Thus, an offense is included in another offense if the statutory definition of the greater offense encompasses all of the statutorily defined elements of the lesser offense. Thomas v. State, 280 Ark. 593, 660 S.W.2d 169 (1983). Stated another way, an offense is included in another offense if it is not possible to commit the greater offense without committing the lesser one. Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986), overruled on other grounds in Smith v. State, 292 Ark. 162, 729 S.W.2d 5 (1987).
Here, the statutory definition of the greater offenses do not encompass all of the statutorily defined elements of the lesser charge. Specifically, they do not encompass the element of proof that a vehicle is operated or permitted to be operated upon a highway without a valid license plate. It is thus possible to commit the greater offenses, willfully attempting to evade or willfully failing to pay taxes, without committing the offense of operating or knowingly permitting to be operated a vehicle upon any highway without a valid license plate attached thereto. Accordingly, the lesser charged is not included in the greater offenses under subsection (b)(1) of section 5-1-110.
Likewise, the lesser charge is not included in the greater offenses under subsection (b)(3), because it does not differ from the offense charged only in the respect that it requires a less serious injury or risk of injury or a lesser kind of culpable mental state. As stated above, the lesser charge differs from the greater offenses in that it requires proof of an additional element not required under the greater offenses. Accordingly, the trial court did not err in refusing to instruct the jury on the offense of operating a vehicle without a license.
VII. Ignorance of the Law
For his seventh and final point, Appellant argues that the trial court erred in instructing the jury that ignorance of the law is no excuse, because the offense that he was charged with required proof of willful conduct. He contends that the instruction was confusing to the jury in that it conflicted with the instruction defining “willfully” as implying knowledge and a preference to do wrong. He further contends that the instruction conflicted with Ark. Code Ann. § 5-2-206(e) (Repl. 1997), which provides for certain evidence showing mistake of law.
The State asserts that Appellant’s argument concerning section 5-2-206 is procedurally barred because he did not raise it below. We agree. The record reflects that during the discussion of jury instructions, Appellant’s attorney stated:
As I said in chambers, I would object on the record to the ignorance of law instruction. I do believe it confuses the issue based on the willful intent instruction. I understand the lawyers will be able to argue both sides of that and I understand that’s a providence for the jury to determine exactly what that means and how it means. But I do believe it’s confusing the issues.
This objection did not apprise the trial court of Appellant’s current argument that the instruction was inconsistent or in conflict with the mistake-of-law provision in section § 5-2-206(e). As such, we will confine our review to the argument raised below, that the instruction was confusing to the jury in light of the instruction pertaining to the definition of “willfully.”
This court has long recognized that every person is presumed to know the law. See Henderson v. Gladish, 198 Ark. 217, 128 S.W.2d 257 (1939). See also Rutherford v. Barnes, 312 Ark. 177, 847 S.W.2d 689 (1993). “[A] person is not relieved of criminal liability for conduct because he engages in that conduct believing that it does not, as a matter of law, constitute an offense.” Ark. Code Ann. § 5-2-206(b) (Repl. 1997). “It is well settled that ignorance of the law or lack of knowledge of a legal requirement is never an excuse to a criminal charge.” Williams v. State, 346 Ark. 304, 309, 57 S.W.3d 706, 710 (2001).
The jurors in this case were instructed that “ignorance of the law is not a defense to a crime in the State of Arkansas.” (Emphasis added.) This instruction is a correct statement of the law, as evidenced by the foregoing authorities. In its essence, the instruction means that a lack of knowledge will not relieve a person of any and all liability for a criminal offense. However, this is not to say that a person may not claim a lack of knowledge of the law in an attempt to negate an element of the offense charged, namely that of the person’s intent. Thus, it was not inconsistent to instruct the jurors that ignorance will not acquit a defendant outright, while also instructing them of the State’s burden to prove the culpable mental state required to commit the offense. The State’s burden was in no way lessened by the instruction on ignorance of the law. We thus affirm the trial court’s ruling on this issue.
Affirmed.
In his reply brief, Appellant states that the prejudice stems from the fact that the prosecutor effectively received two extra peremptory strikes as a result of the trial court’s ruling. We do not address this argument, as this court has repeatedly held that an argument cannot be raised for the first time in a reply brief. See, e.g., Maddox v. City of Fort Smith, 346 Ark. 209, 56 S.W.3d 375 (2001); State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000).
The term “talesman” is defined as: “ 1. A person selected from among the bystanders in court to serve as a juror when the original jury panel has become deficient in number. 2. VENIREMEMBER — Also termed tales-juror!’ Black’s Law Dictionary, 1467 (7th ed. 1999). | [
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Mehaffy, J.
The appellants began this action in the Pope Circuit Court against the Cudahy Packing Company, a corporation, the Cudahy Packing Company of Louisiana, Ltd., and Claude Westerfield. The complaint alleged the injury and death of Robert Ross Berry-man, by the negligence of the appellee through its agent and employee, Claude Westerfield. When the complaint was filed and summons issued against the Cudahy Packing Company, the summons was served on Claude Westerfield, agent. There was a second summons issued and served upon the Secretary of State, and the third summons was served upon the Auditor of State.
The Cudahy Packing Company of Louisiana, Ltd., filed an answer, and the suit was dismissed as to it. The Cudahy Packing Company, without entering its appearance for any other purpose, filed a motion to quash service of each summons.
It is the contention of the appellees that the order of January 11, 1934, is not a final order, and that therefore the question of whether service on Westerfield was valid is not before the court. They cite Hogue v. Hogue, 137 Ark. 485, 208 S. W. 579. It is true the court said in that case that, where the motion to quash the summons was denied, that was not a final order from which an appeal could be prosecuted, but the court also said: “On the other hand, if the trial court quashes the writ, the plaintiff may take an alias summons, and thereby waive objection to the judgment of the court; or he may rest upon the quashal of the writ and appeal from the judgment of the court quashing the summons and permitting defendant to go hence without day, or, what amounts to the same thing, dismissing the plaintiff’s action.”
The court also said in the same case: “The circuit court sustained the motion, and it was adjudged that the writ be quashed and that the defendant recover costs. The judgment was held to be final and appealable. On the question of practice the court said in effect that on the quashing of the writ the plaintiff may take an alias writ or he may rest and appeal. ’ ’
In the instant case when the court made the order quashing the writ served on Westerfield, the appellants appealed. Of course the complaint could not be dismissed because two other summonses had been issued and servéd, and there was a motion to quash the service of each of these, and, until those motions were passed on, the court could not dismiss the complaint. The order of the court was final and appealable. Of course, if appellants had procured an alias summons, this would have been a waiver of their objection to the court’s order, but they did not do this. The other summonses had already been issued, and there was nothing appellants could do except to pray an appeal; but, if this order had not been final, it became final when the complaint was dismissed.
Appellees next call attention to the case of Harlow v. Mason, 117 Ark. 360, 174 S. W. 1163. The court in that case said: “There is a conflict in the authorities as to whether an order of a court quashing a summons is such a final order as that an appeal will lie,'and there is some apparent conflict in the early decisions of this court upon that question.”
The court in this case also said, in discussing other cases: “In both these cases however, as well as in that of the State, use, etc. v. Adams, [9 Ark. 33] it was decided that the legal effect of the judgment quashing the writ was a dismissal of the case. This being the effect of the judgment, the parties are necessarily dismissed from the court, and, unless the decision of the circuit court is reversed or set aside, there is no remedy afforded them. ’ ’
When the court made its order quashing the writ served on Westerfield, appellants objected and prayed an appeal to the Supreme Court. The order made by the court in quashing this summons was all that could be made at that time, and the complaint was in fact thereafter dismissed. But the order quashing the summons put the appellants out of court so far as this summons was concerned.
It is next contended that the service on Claude Westerfield was not sufficient because Westerfield was a mere salesman for appellees. To support this contention they cite W. T. Adams Machine Co. v. Castleberry, 84 Ark. 573, 106 S. W. 940. In that case the court said: “There is no allegation in the complaint as to whether the appellant is a partnership, a foreign or domestic corporation. * * * Tlie summons was served as shown by the return, upon T. W. Barnes, agent. Barnes was only a traveling salesman. He had no control over the business of the corporation, and service upon him was not sufficient.”
Appellees next call attention to the case of Arkansas Construction Co. v. Mullins, 69 Ark. 429, 64 S. W. 225, and the case of Lesser Cotton Co. v. Yates, 69 Ark. 396, 63 S. W. 997. In the first case referred to, the court said:
“The character of the agent nowhere appears in the record, and the simple fact that he was agent (it may be without any representative character from which authority might and ought to be implied on his part to receive service) is not sufficient.” In the Lesser Cotton Company case the contention was made that, unless the foreign corporation appointed an agent, no service could be had except by publication, and the court said: “It is incredible that the Legislature should have, intended to limit its own citizens to such an insufficient remedy, when the corporation is actually doing business in the territory, and is represented there by a manager or local agent.”
The next case referred to is that of L. D. Powell Company v. Rountree, 157 Ark. 121, 247 S. W. 389. In that case, which involved the sale of books, the court said: “The recovery of the books under the McNeill contract amounted to a collection growing out of an interstate transaction. The collection was made in books instead of money, and we think the resale of them, in order to convert them into money, was a continuation of the interstate transaction. ’ ’
Appellees then call attention to the case of Sellin v. Hessig-Ellis Drug Co., 181 Ark. 386, 26 S. W. (2d) 122. The court in that case, among other things, said: “In the first place, it may be said that no effort was made to show that the traveling salesman had any special authority from his principal, and his authority was limited to receiving and transmitting orders.”
Section 1152 of Crawford & Moses’ Digest reads as follows: “Any and all foreign and domestic corporations who keep or maintain in any of the counties of this State a branch office or other place of business shall be subject to suits in any of the courts in any of said counties where said corporation so keeps or maintains such office or place of business, and such service of summons or other process of law from any of the said courts held in said counties upon the agent, servant or employee in charge of said office or place of business shall be deemed good and sufficient service upon said corporations, and shall be sufficient to give jurisdiction to any of the courts of this State, held in the counties where said service of summons or other process of law is had upon said agent, servant or employee of said corporations.”
The evidence shows that Claude Westerfield, upon whom the summons was served, lives in Russellville, and has been traveling for the Cudahy Packing Company for about eight years; he owns his own-car; makes all the principal towns in a number of counties; sells to different merchants; he goes to the place of business of the merchants; takes their order, and he sometimes takes orders over the telephone. If a new- man or concern buys merchandise, Westerfield recommends the party to the credit department, and they usually carry out his recommendations. The merchandise is shipped to the merchants and is delivered generally in a truck, but the truck does not belong to the company. After he has sold merchandise, he then makes another trip over the route and collects for what he sold the previous week, and makes additional sales. If a merchant orders merchandise and refuses it when it arrives, Westerfield sells it to some other merchant; he collects and remits to the company. The company pays him a salary of $3,240, and they take out 60 cents a week for insurance. They also pay Westerfield 4 cents per mile for the use of his car, which he would not operate over the route if he were not working for the company. Westerfield’s headquarters have been at Russellville for the eight years that he has been at work for the company. Westerfield goes wherever the business requires him to go, where he can sell merchandise or make collections. He sells on an average of 80 orders a week, and this runs from $2,000 to $3,000 a week. He recommends the products of the com pany, and. assists in the business all over' the territory during the whole year. If he gets a new customer he looks over the stock of goods, talks to him, and estimates the merchant’s ability to pay, and then recommends to the company to sell him so much per week. If some one should order 100 pounds of lard and it should come by truck and the Customer would not take it, Westerfield picks it up and resells it. He will take the merchandise in his own car and resell it. He has been doing this all the time. This happens about six or ten times a year. Westerfield also said that he would stop a shipment, keep the merchant from getting it if he thought he would not pay, and the company knew about this. He has an office in Russellville. The, orders are made out at his office. About 10 of the customers out of the 80 remit direct to the company and the others pay him. The company has advised him not to carry any passengers in his car while he is selling their products. He said he is a salesman and a peddler; that he sells and collects. A sale is not complete until he collects for it. He is both a salesman and agent.
We think this evidence is sufficient to show that the appellee is doing business in the State of Arkansas and that the service on Westerfield was valid. He has an office where he takes orders over the telephone; any merchandise that is refused by the person to whom it was sold is taken by him and sold to others, or, as he says, “peddled to others.”
Appellees contend that they were engaged in interstate commerce, and that Westerfield was merely a salesman. This would be true if Westerfield did nothing but receive orders and transmit them to the company in Kansas City, but, as we have said, he did more than this. Besides keeping an office where he received orders, in all cases where a purchaser declined to take the merchandise shipped to him, Westerfield repossessed the merchandise, and sold it just as any merchant in Arkansas would sell merchandise.
Doing business is defined in C. J. as follows: “Any transaction with persons or any transaction concerning any property situated in the State, through any agency whatever acting for it within the State. ” 19 C. J. 384.
Since we hold that the Cudahy Packing Company is doing business'in Arkansas, it is unnecessary to discuss or decide the questions as to the service: of the other summonses.
The judgment is reversed, and the cause remanded with directions'to overrule the motion to quash service. | [
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Johnson, C. J.
Appellant, Texarkana-Forest Park Paving, Water, Sewer and Gas District No. 1 was organized under and by authority of act 183 of 1927, which act was amendatory of act 126 of 1923 as amended by act 645 of 1923; Subsequent to the organization of appellant district, the General Assembly passed act 63 of 1931, the effect of which was to levy a one-cent tax upon all gasoline sold in this State for the benefit of county public roads as distinguished from State roads; the act of 1931 further provided, in effect, that the State Treasurer, prior to disbursing the funds to the respective counties, as provided therein, shall deduct the amount required to pay 75 per cent, of the maturing bonds and interest of all bonds issued by road improvement districts issued since February 4, 1927. The act of 1931 expressly provides in § 6 thereof that all districts organized under act 126 of 1923 and amendments thereto shall come within its purview and application.
On October 1,1931, pursuant to the provisions of act 63 of 1931, the State Treasurer deducted from Miller County’s allotment under said act a sum sufficient to pay 75 per cent, of the maturing bonds and interest of appellant district, and subsequent thereto made similar deductions and allotments in favor of appellant district and asserted his intention of continuing said deductions and allotments. Thereupon the State, for the use and. benefit of Miller County and J. J. Sewell, as county judge of Miller County and in his own right as a citizen and taxpayer thereof, instituted this suit in the Pulaski Chancery Court against Boy V. Leonard, State Treasurer, and appellant district praying a permanent injunction against the State Treasurer restraining and enjoining him from making any deductions from Miller County’s allotment under act 63 of 1931 in aid or for the benefit of appellant district. This suit progressed to trial and decree on March 23, 1934, and the court determined therein that the prayer of appellee’s complaint should be granted, and this appeal is therefrom.
Act 183 of 1927, under' authority of which appellant district was organized, is unconstitutional and void for the following reasons: Act 126 of 1923 as amended by act 645 of 1923 by its mandatory provisions applied to and had effect only in and to Pulaski County. Section 24 provides: “This act shall be operative only in counties with a population exeeediixg seventy-five thousand inhabitants, as shown by the last Federal census.”
In virtue of the section of the act just quoted, it and the amendment thereto of 1923 applied only to Pulaski County because Pulaski County was the only county in Arkansas in 1923 which contained the requisite seventy-five thousand population. So it was from the date of the passage of act 126 of 1923 until the passage of act 183 of 1927. Section 1 of act 183 of 1927 pimvides:
“Section 24 of act No. 126 of the Acts of the General Assembly of the State of Arkansas of the year 1923 is hereby repealed.”
The effect of § 1 of the act 183 of 1927 was to repeal § 24, act 126 of 1923; thereby making act 126 of 1923 and the amendments thereto apply to all counties of the State.
Act 183 of 1927 contains eight sections only. Section 1 is heretofore quoted. Section 2 amends § 25 of act 126 of 1923, which has to do only with the application of the act to districts created adjacent to certain cities and towns. Section 3 amends § 4 of act 126 of 1923, which has reference to the purpose only for which the district may be organized. ' Section 4 provides for the formation of districts authorized under act 126 of 1923 embracing lands in two or more counties. Section 5 provides for the annexation of territory to districts theretofore organized by authority of act 126 of 1923. Section 6 authorizes the commissioners of districts, organized under authority of act 126 of 1923, to sell and convey the improvements effected by the district under certain restrictions. Section 7 expedites litigation affecting districts organized under said acts. Section 8 is the emergency clause.
It definitely and certainly appears from a mere reading of act 183 of 1927 that no valid improvement district could be organized under its authority and mandate. Without the aid of acts 126 and 645 of 1923 the provisions of act 183 of 1927 are absolutely meaningless and void of purpose. Section 23 of article 5 of the Constitution of 1874 provides:
“No law shall be 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 re-enacted and published at length. ’ ’
In Watkins v. Eureka Springs, 49 Ark. 131, 4 S. W. 384, this court decided that an act of the G-eneral Assembly which had the purpose and effect of extending to cities and towns rights and remedies which existed by law in favor of counties could not be so extended by reference to title only. We have uniformly held, following the case just cited, that when a new right is conferred or cause of action given § 23 of article 5 of the Constitution of 1874 requires the whole law governing the right and remedy to be re-enacted in order to enable the court to effect its enforcement. Farris v. Wright, 158 Ark. 519, 250 S. W. 889; Beard v. Wilson, 52 Ark. 290, 12 S. W. 567; Common School Dist. v. Oak Grove Special School Dist., 102 Ark. 411, 144 S. W. 224; State v. McKinley, 120 Ark. 165, 179 S. W. 181; Harrington v. White, 131 Ark. 291, 199 S. W. 92; Palmer v. Palmer, 132 Ark. 609, 202 S. W. 19; Hermitage Special School Dist. v. Ingalls Special School Dist., 133 Ark. 157, 202 S. W. 26; Fenolio v. Sebastian Bridge Dist., 133 Ark. 380, 200 S. W. 501; St. L.-S. F. Ry. Co. v. Southwestern Telegraph & Telephone Co., 121 Federal 276.
In Rider v. State, 132 Ark. 27, 200 S. W. 275, we had before ns, in effect, the exact question here presented. There the Legislature of 1909 passed act 310 creating a stock district in the Charleston District of Franklin County. The General Assembly of 1915, by act 145, amended the former statute by adding two other townships in Franklin County to the stock district as formed by the act of 1909. This addition was effected by amending' the act of 1909 as follows: “That wherever act No. 310 of the General Assembly of 1909 now reads ‘ Charleston District of Franklin County,’ the same shall be amended and the same is hereby amended to read: ‘Charleston District of Franklin County and Barham and Wittich townships of Franklin County’.” We there said: “The act of 1915, under which appellant was convicted, was clearly an attempt on the part of the lawmakers to extend the provisions of another statute merely by reference to title without re-enacting and publishing the new statute at length. * * * The statute now under consideration falls clearly within the first rule stated above, for the power granted under' the new statute is not declared on its face, but is given merely by reference to the title of another statute.”
The similarity of the case just cited to the one under consideration is: In the Rider case the stock district, which applied to the Charleston district only, was extended to cover two other townships in the county by amendment; in the instant case the authority to organize suburban road improvement districts, which existed only in favor of Pulaski County, was extended to the other 74 counties of the State by the simple repeal of § 24 of act 126 of 1923. There is and can be no distinguishable difference.
Act 183 of 1927 falls squarely within the condemnation and inhibition of § 23, article 5, of the Constitution of 1874 and likewise within the doctrine of the cases cited supra, therefore is unconstitutional and void.
It is insisted, however, that the allotments to appellant district from Miller County’s allotment of the funds under act 63 of 1931 is lawful and valid and should be continued because the donation by the State is a gratuity and may be bestowed regardless of the constitutionality of the act under which it was created. This is probably true if the General Assembly has manifested such intention, but such is not the case. The primary purpose of act 63 of 1931 is to make donations to counties and aid them in their efforts to improve county roads which lie without the State highway system. This is made evident by the fact that the 75 counties of the State were made the units to which the donation was granted. Subdivision F of § 1 of said act provides, in effect, that this created fund shall be divided among the several counties of the State upon the following basis: 1. One-third on population of county. 2. One-third on car license revenue received from the county. 3. One-third on area of county.
Subdivision G of § 1 provides: ‘ ‘ From the allotments made to each county as provided in paragraph -F the State Treasurer shall deduct the amount required to pay * * * maturing bonds and interest, etc.” Thus it appears from the plain language of the act that its primary purpose is to aid counties and not road improvement districts. Since it was and is the primary purpose of this act to aid counties, we are unwilling to hold that the General Assembly had the purpose and intent to take funds primarily allotted to a county and donate them to road districts which were organized under an unconstitutional act.
Moreover, the General Assembly evidently had in mind, upon the passage of act 63 of 1931, that the road improvement districts therein sought to be aided were organized and existing under valid acts and not those organized and existing’ under invalid laws. We are unwilling to hold that the act of 1931 would have been passed by the General Assembly regardless of the constitutionality of the act under which it was organized. In addition to what has just been said, the evidence presented upon trial of this cause warranted the chancel lor in finding that appellant district was not, when organized, a public enterprise but, on the contrary, a private and personal venture of those effecting the organization thereof. The power to pay gratuities to individuals is denied to the Legislature generally by constitutional mandate, and usually a gift of money to an individual would be an appropriation of public funds to private uses, which cannot be justified in law. Mead v. Action, 139 Mass. 341; Citizen Sav. & Loan Ass’n v. Topeka, 20 Wall. (U. S.) 655; Parkersburg v. Brown, 106 U. S. 487, 1 S. C. 442; Cole v. La Grange, 113 U. S. 1, 5 S. Ct. 416; Cooley, Constitutional Limitations (6th ed.) 601, 602.
For. the reason last stated, we cannot and should not presume that the Legislature would have passed act 63 of 1931 donating public funds to private uses, or to road districts organized under unconstitutional law.
Neither can we agree that the citizens of Miller County are estopped to assert their claim to the funds here in controversy. The first answer to this contention is that these funds were not created until 1929 and 1931, long after the creation of appellant district. Secondly, the citizens of Miller County had no interest in the organization of the district and could assert no objections thereto until funds belonging to Miller County were diverted to the purpose of extinguishing a debt owed primarily by appellant district. It was then and only then that the citizens of Miller County had the right to bring in question the constitutionality of the act under which appellant district was organized.
It follows from what we have said that the chancellor did not err in granting the permanent injunction against the State Treasurer, and the decree is therefore affirmed.
Smith, McHaney and Butler, JJ., dissent. | [
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McHaney, J.
Appellee sued appellants, McCarty and wife, in replevin, for the recovery of an automobile or its value which was laid at $250, in the justice, of the peace court, on May 25, 1931. Proper affidavit and bond were filed to obtain immediate possession of the automobile. Retaining bond was filed in apt time with the other appellants as sureties. On June 15,1931, on motion of appellants, the case was removed to the common pleas court, where, on December 21, 1931, judgment was rendered in favor of appellee for the possession of the car or its value in the sum of $154.13. The car was delivered to appellee December 29, 1931, in a practically worthless condition, and same was sold by appellee to J. M. Mc-Kinny, a used car and junk dealer for $20, the best price-he could get, which amount was credited on the judgment. This sale was not advertised, nor was McCarty notified thereof. There is 'no dispute regarding the condition of the car or its value when delivered to appellee who refused to accept delivery in that condition in settlement of the judgment. On June 19, 1933, appellants filed a motion in the court of common pleas to require appellee to satisfy the judgment, which motion was granted and an appeal taken to the circuit court where judgment was entered reversing the lower court and reinstating the execution issued on the judgment, and appellants bring the case here for review.
The question is: Can appellant McCarty wrongfully retain possession of the property pending decision as to title, so use it during such time as to practically destroy its value, then satisfy the judgment against him for the property or its value by delivering the property in its damaged condition? We have answered this question in the negative many times in recent cases. Conlee v. Love, 178 Ark. 238, 10 S. W. (2d) 372; Commercial Investment Trust v. Forman, 178 Ark. 695, 10 S. W. (2d) 897; Love v. Hoff, 179 Ark. 381, 16 S. W. (2d) 12; Commercial Investment Trust v. Miles, 181 Ark. 77, 25 S. W. (2d) 3. The rule is thus stated in the case last cited: “The view we have adopted and the conclusions reached by us bring the case squarely within the principles announced in Commercial Investment Trust v. Forman, 178 Ark. 695, 10 S. W. (2d) 897, where it was held that, in cases like this, the seller or holder of the installment notes in a conditional sales contrac c was entitled to judgment against the sureties on the retaining bond as well as against the buyer for the balance due on the sales contract, against which the present value of the car should be credited. In that case it was held that where the buyer, in an action of replevin to recover an automobile sold with reservation of title, gave bond and retained possession of the car until it was worn out and then returned it to plaintiff the latter was entitled to judgment against defendant and the sureties on his bond for the balance due under the sales contract, against which the present value of the car should be credited.
“But for the retaining -bond, the car would have been returned to the seller when the suit was brought, at which time value- as found by the court was equal to the balance due on it. By virtue of the execution of the retaining bond, the buyer was enabled to keep the car until it was worn out, and he cannot now satisfy the judgment by returning a worthless car. The court in its judgment in the replevin suit fixed the value of the car as it was at the time the plaintiff was entitled to recover possession of it, which was at the commencement of the suit; and the defendant could not keep and use the car until it had become worthless, and then return it in satisfaction of the judgment.
“This principle was also recognized in Love v. Hoff, 179 Ark. 381, 16 S. W. (2d) 12, and applied in a case where the plaintiff in the replevin suit had kept possession of an automobile and had used it until it had become worn out. The court said the plaintiff in execution was entitled to have restored an automobile of undepreciated value, and that the plaintiff in the replevin suit could not satisfy a judgment against himself by returning a depreciated car in satisfaction of the judgment. ’ ’
The value of the car as fixed in the judgment referred to the value at the time suit was brought, and no doubt represented the balance due under a conditional sales contract, and this amount is the proper measure of its value in the absence of proof to the contrary. Commercial Investment Trust v. Miles, supra. Therefore the value of the car as fixed by the common pleas court referred to its value at the beginning of the action and not seven months later when the case was tried.
We think the testimony in the circuit court as to the value of the car at date of delivery to appellee was proper, and that the proceeding in the circuit court was not a collateral attack on the judgment of the common pleas court as contended by appellants. It was a direct attack by appeal on the order of the common pleas court directing the satisfaction of the original judgment entered in December, 1931. No attack is made on the original judgment.
No error appearing in the record, the judgment of the circuit court is affirmed. | [
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Humphreys, J.
This foreclosure proceeding was commenced in the chancery court of Jefferson County by appellants against appellees on June 29, 1933, upon a note and mortgage executed by appellees to A. Udes on June 24, 1927, due three years thereafter and which, at first maturity, had been extended three years. At the time of the "institution of the suit, the debt was. due, and appellees were in default on interest and taxes, which they were required to pay under the terms of the mortgage.
Appellees interposed the defense that on the 21st day of June, 1933, they entered into an oral agreement with A. Udes that, in satisfaction of the debt and mortgage, they would convey said property to him, and pay the then due improvement taxes and the county and State general taxes for 1932,- and accrued interest of $25 due at that time; that, pursuant to the agreement, they tendered him a, deed describing the property and $25 interest, and exhibited to him a receipt for improvement taxes, and offered to pay the county and State general taxes for 1932; that he refused to accept the deed and carry out the agreement. They prayed, by way of cross-complaint, that appellants be required to perform the oral contract.
The court heard the cause upon the pleadings, exhibits, and testimony adduced and adjudged that the note and mortgage be canceled, and that A. Udes be required to accept the deed, from which is this appeal.
John W. Nyegaard testified unequivocally that an oral agreement was entered into between A. Udes and himself to the' effect that A. Udes would accept a deed to the property, and cancel the note and mortgage if he would pay the interest then due of $25, and pay the district improvement taxes and the county and State general taxes, all of which he offered to do, but that A. Udes refused to accept the deed and carry out the agreement.
A. Udes testified just as positively that no such agreement was ever made between them.
This court is committed to the doctrine that a mortgage may be released by either a written or parol agreement, but, in order to effect such a release by parol, the agreement must be established by clear and convincing evidence. This court said in the case of Riley v. Atherton, 185 Ark. 425, 47 S. W. (2d) 568, that: “We have reached the conclusion that, as to mortgages of real estate, the correct rule is that the proof relating to the discharge or release thereof must be clear, satisfactory and convincing. Title to real property, and the validity and continued existence of mortgages thereon, would be insecure by any less stringent rule. ’ ’
The most that can be said in the instant case relative to the evidence is that it is in equipoise. Both parties stand in the record unimpeached, and their evidence presents an irrevocable conflict, creating a doubt rather than a certainty that such an oral agreement was ever made.
The payment of taxes does not corroborate the testimony of John W. Nyegaard, because it was his duty under the terms of the mortgage to pay them.
The tender of a deed and $25 interest does not sufficiently corroborate his testimony to make it certain and convincing that Udes had agreed to accept the deed and satisfy the mortgage.
It would be an unwise and dangerous rule to say that a mortgage on real estate might be satisfied in paro’1 by a mere preponderance of the evidence. The parol agreement must :be established by clear and convincing evidence in order to effect a satisfaction of a mortgage.
On account of the error indicated, the judgment is reversed, and the cause is remanded with directions to enter a decree of foreclosure in favor of appellants. | [
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Butler, J.
The scene of tbe occurrence out of which this litigation grows is a village called Joiner, populated by three hundred and six persons, which straggles on either side of Highway No. 61 and a railway. Running at an angle across this highway is a gravel road, and at the intersection there is a large triangular space approximately 100 feet at its widest point. The highway runs through the village from northeast to southwest.
At about 3:30 o ’clock on the afternoon of April 28, 1933, an automobile, driven by Miss Ruth Albrecht in which Mrs. Helena A. Doud was riding as a guest, in passing a truck operated by an employee of the Coca-Cola Bottling Company, was overturned. Both ladies were very seriously injured. To recover damages for these injuries, each brought suit against the company on the theory that the negligent operation of the truck by its driver, Hendrix, ivas the proximate cause of the accident and the resulting injuries. William P. Doud and O. P. Albrecht also brought separate suits against the company, the first named to recover for doctor’s bills and other expenses incurred b}^ him in the treatment of Mrs. Doud, his wife, and the other for expenses incurred in the treatment of Miss Albrecht, his daughter.
The suits were defended on the theory that the accident occurred at the intersection of streets in the business district of the town which Hendrix, driving the truck of the company, was in, having entered the same in a prudent manner giving the proper signals and driving with due caution with regard to the traffic and use of the way; that the accident was the result of the negligence of the driver of the automobile; that it ivas being driven recklessly in the business district at an excessive rate of speed, rendering the driver unable to keep the ear under control. The further defense was interposed that, if the driver of the truck was negligent, the driver of the automobile was also negligent by reason of her rapid and careless driving, and that her guest, Mrs. Doud, by acquiescing in the manner of such driving, was also guilty of negligence; that the negligence of the driver of the automobile and her guest directly contributed to the happening of their injuries.
The cases were consolidated for the purposes of trial, which trial resulted in a verdict and judgment in favor of each of the plaintiffs. On appeal no exceptions are taken as to the amount of the judgments.
It is first contended that the trial court erred in refusing to direct a' verdict on the motion of the defendants, the contention being that the evidence failed to establish the negligence of the driver of the truck, and that, under the facts and circumstances proved, the casualty to the automobile was occasioned solely by the reckless driving of the same and the inattention of its occupants.
There is some conflict in the evidence relative to the movement of the truck immediately preceding the accident and a sharp and decided conflict in (he evidence rela tive to the speed at which the automobile was being driven and the attention of its driver to the conditions of the road ahead.
On the west side of the highway north of the intersection where the gravel road crosses at an angle is a store occupied by Squire Holt. It was in front of this store slightly to the south on'the east side of the highway that the automobile overturned. Just before the automobile appeared, being driven from the northeast to the southwest, the truck of the appellant company was parked parallel with the highway in a space between the west curb of the highway and the front of Holt’s store, approximately in front of the middle door of the store. It appears that the truck was headed toward the south when parked. Hendrix testified that, when he started to leave Mr. Holt’s place of business, he passed around the south end and in front of the truck, speaking to some persons as he did so; that he entered the truck from the side next to the highway; that he looked in each direction and saw no one approaching; that as he put his truck in movement he signaled with his left arm his intention to turn into the highway; that about the time he got the truck moving he heard a horn and stopped instantly; that he then observed Miss Albrecht’s car about thirty or forty feet to the north going off the pavement so fast as to apparently be from under control. Witness stated that where the movement of his truck was being made was a very dangerous place, with which he was familiar; that the front of his truck at the time the Albrecht car was overturned was at about the center of the highway and that the automobile missed him about fifteen feet.
Hendrix’s testimony was corroborated by that of some witnesses regarding the rate of speed at which Miss Albrecht’s car was being driven, the estimated speed being from forty-five to fifty miles per hour.
The testimony of witnesses for the appellees tended to show that Miss Albrecht and Mrs. Doud were traveling at a moderate rate of speed entering the village from the north. Miss Albrecht stated that, before reaching the village, she was traveling at about forty miles an hour, but slowed down on reaching it. She was corroborated by witnesses who stated that she was traveling at from thirty to thirty-five miles an hour after entering the village and that she slowed down as she approached Holt’s store. The testimony further tends to show that, as Miss Albrecht was proceeding in this manner, the driver of the truck without warning made a sudden left turn directly into the highway and directly in front of the approaching automobile, which was sounding its horn.
In describing the situation thus presented, Miss Albrecht said: “As I approached the truck, I gave him a signal that I was going to pass. He turned out the least bit, and as I got closer to him he started to -shoot out straight across the highway. At that point I realized that I was too close to apply my brakes. I have done a great deal of driving, and I saw the only chance I had was to turn in front of him, which I did, and he came right straight through and hit us. The collision made me lose control. We started to roll, and that is all I remember. ’ ’
There was testimony corroborating Miss Albrecht’s statement to the effect that right after the occurrence Hendrix, the driver of the truck, stated that he guessed he was at fault because he pulled out on the highway in front of them, and also testimony tending to show he was engaged in conversation with his friends as he entered the car, “gabbing” as one expressed. On this testimony the trial court submitted to the jury the question of the negligence of the truck driver in the manner of the movement of his vehicle and also the question of the contributory negligence of Miss Albrecht and her guest, Mrs. Doud. We think the testimony abundantly justifies the submission of those questions to the jury. The court properly refused to instruct a verdict in favor of the defendants.
Exceptions were saved to the giving of instructions Nos. 1 and 2 for the plaintiff. These are identical instructions with the exception that No. 1 submits to the jury the question, in Mrs. Doud’s case, as to whether or not Hendrix drove the truck in question upon the highway in front of the oncoming car, and, if so, whether or not it was negligence, and, if so, whether this caused or contributed to Mrs. Doud’s injury. Instruction No. 2 presented the same question as it related to the case of Miss Albrecht. One of the objections urged was that if the jury should find the facts in the affirmative, that such were negligence and the proximate cause of the injuries, “then your verdict will be for the plaintiffs.” The contention is that the expression, “then your verdict will be for the plaintiffs,” offends against the rule stated in Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676, and other cases cited, which is that an instruction ending with the stereotyped “find for the plaintiff” is incomplete in that it ignores and leaves out the question of the defense of contributory negligence. These instructions, however, do not so conclude, but end with the phrase, “unless you should find for the defendants under other instructions given you.” This, with the further instruction given by the court: “You are not to take any one instruction given you as the whole law of the case, but take them all together as such,” differentiates these instructions from those criticized in the cases cited by the appellants.
It also appears that the appellants made a specific objection to these instructions “for the reason the jury might be misled into thinldng that if he drove out there under any condition with a car coming from the north he would be guilty of negligence.” This specific objection waived other specific grounds of objection. St. L., I. M. & S. R. Co. v. Williams, 105 Ark. 331, 151 S. W. 243; Ark. & La. Ry. Co. v. Graves, 96 Ark. 638, 132 S. W. 992; Mo. Pac. Ry. Co. v. Barry, 172 Ark. 729, 290 S. W. 942.
Instruction No. 3 submitted the question of ordinary care of one suddenly confronted with an emergency created through the negligence of another, and instructed the jury that, if such person so situated makes a choice of a course of conduct to avoid the danger such as one of ordinary prudence, under similar conditions, might reasonably make, then there would be no negligence, even though it might subsequently appear that it would have been wiser to have chosen some other course of conduct. It is urged that, the giving of this instruction was error, because of the expression “although it may now appear that it would have been wiser for her to have chosen some other course,” and other expressions of like character. We are of the opinion that the instruction correctly states the law. The general rule is stated in 42 C. J., page 890, as follows:
“Where the operator of a motor vehicle is by a sudden emergency placed in a position of imminent peril to himself or to another, without sufficient time in which to determine with certainty the best course to pursue, he is not held to the same accuracy of judgment as is required of him under ordinary circumstances, and is not liable for injuries caused by his machine or precluded from recovering for injuries to himself or his machine if an accident occurs, even though a course of action other than that which he pursues might be more judicious, provided he exercises ordinary care in the stress of circumstances to avoid an accident.” This is also, in effect, the rule announced in our own cases, one of the more recent being Ark. Gen. Utilities Co. v. Oglesby, 188 Ark. 564-6, 67 S. W. (2d) 180.
There were a number of instructions requested by the defendants which the court refused, which action of the court, it is argued, was error. We do not set out these instructions because to do so would unduly extend this opinion. It is sufficient to say that they were all based on the theory that at the time of the accident the driver of the truck was in, or entering, the intersection of Highway No. 61 with the.gravel road which crossed it at an angle; that therefore he had the right of way and was not guilty of negligence in the movement of his truck. This theory is not supported by the evidence in the case. The plats of the locality and the measurements made by appellants’ own witnesses show that the points on the highway entered by the truck on leaving Holt’s store was not in, or at, the intersection of the highway with the gravel road, but was approximately one hundred feet to the north. Consequently, Miss Albrecht’s car, at the time the truck turned on to the highway, was a still further distance to the north. The truck, instead of turning into the intersection turned directly across Highway No. 61 north of the intersection and across that part of the highway along which Miss' Albrecht’s ear was properly proceeding.
Instruction No. 8, requested by the defendants, told the jury that if, at the time the truck movement was made, its driver made the proper signal of the intended movement, which the driver of the automobile saw or which she could have seen had she been in the exercise of ordinary care in time to slow down or stop the automobile and thus avoid the injuries, she was bound to take notice of the signal and bring her car under control accordingly.
Instruction No. 9, requested by the defendants, instructed the .jury as to the duty of a person operating an automobile upon a public highway, and that this duty required that the automobile be driven with due care at a prudent speed not greater than reasonable and proper, having due regard to the traffic and safety of others, and that the driver had no right to travel at a speed or in a manner as would endanger other persons or their property lawfully upon the highway.
The court gave these instructions except the concluding sentence of each. The sentence excluded from instruction No. 8 is: “And you are further instructed that it was her duty at the time to he driving the car at such reasonable speed and with such reasonable care that she could bring it under control.” This sentence does not correctly state the true rule as to the control of a car by its driver, even though the driver was in, or entering, a highway intersection. The true rule is that the driver must have his car under such reasonable control as would enable him to avoid accidents which might be foreseen by the exercise of ordinary care.
Another objection which justified the court in striking these sentences from the two instructions is that they were grounded on the erroneous assumption that the injuries occurred at the intersection of highways which the truck driver was entering in a careful manner before the automobile had arrived at this intersection. Appellant calls attention to a number of our eases in which the language is identical with the last sentence of instruction No. 9 excluded by the court in this case. This is true. In Smith-Arkansas Traveler Co. v. Simmons, 181 Ark. 1024, 28 S. W. (2d) 1052, the identical language was in fact, approved by the court and reference was made to the approval of the same statement by the court in Madding v. State, 118 Ark. 506, 177 S. W. 410. The statement of law was correct as applied to the facts in those cases, both of which involved a question of liability for injury caused by the movement of automobiles approaching street crossings in cities. The reason for the rule was thus stated in the Smith case, supra: “Danger may always be expected or anticipated at street crossings or at intersections of streets, and every driver of an automobile should keep a lookout and approach same with his machine under control, else he can not be regarded or treated as exercising ordinary care.”
In support of appellants’ contention, a number of other cases of our court are cited, approving declarations similar to the one stricken from instruction No. 9, but all of these relate to the liability resulting from the movement of automobiles at street crossings in cities and the duty of the driver at such places, or when turning a corner; whereas, in the case at bar, as we have seen, the movement of the truck was not at a street crossing. It is apparent that ordinary care in one situation would be the grossest negligence in another and different situation. Railway Co. v. Lewis, 60 Ark. 409-13, 30 S. W. 765, 1135; Railway Co. v. Triplett, 54 Ark. 300, 15 S. W. 881, 16 S. W. 266. In a small village at a point on a hig’hway one hundred or more feet distant from the intersection of that highway with another, the degree of care to be exercised and the rate of speed permissible is quite different from the care required and the proper rate of speed to be maintained in crowded cities at street crossings. It is not to be supposed that a driver of an automobile is required to drive at a rate of sjoeed at all times as would enable him to stop immediately at any given time. If such were the rule, it would nullify that part of our statute making it lawful to travel at thirty-five miles an hour except in business districts at the intersection of highways when the driver’s view is obstructed and in turning corners; and also the further rule that a vehicle on a highway shall be driven at “ a careful and prudent speed, not greater than is reasonable and proper having regard to the traffic, surface and width of the highway, and of any other conditions then existing. ’ ’
Instruction No. 11 contained a part of our statutes relating to the manner in which automotive vehicles may be driven. The first subdivision of the statute given stated the rule quoted, supra. The remainder stated the different rates of speed, prima facie lawful, when approaching and traversing intersection of highways when the driver’s view is obstructed, prescribes the circumstances under which the driver’s view shall be deemed to be obstructed, prescribes certain rates of speed in a business district, the rate of speed permissible under all other conditions, and, in the concluding portion defines “business districts.” Following the language of the statute, an application was sought to be made of its several provisions to the evidence in the case. The court refused to make the application requested, and correctly so. Much of the statute which the court gave at the request of the defendants has no application to the facts of the case at 'bar. As we have seen, the case did not involve an approach within fifty feet and a traverse of the intersection of the highways when the view of the driver is obstructed. There was no proof offered that the scene of the casualty was a business district within the meaning of the act. The court instructed the jury on the applicable portion of the statute in an instruction as favorable to the appellants as they were entitled to. That instruction is as follows: “If you find that the driver of the automobile was violating any of the rules with reference to the use of the road as set out above, then you are told that such violation would be evidence of negligence, and you will determine from all the facts and circumstances introduced in evidence in this case whether in doing so she was guilty of negligence that caused, or contributed to, the injury, and if you find that she was guilty of such negligence, then she and her father cannot recover.
“It shall be prima facie unlawful for any person to exceed any of the foregoing speed limitations.”
Instruction No. 10 requested by the defendants and modified and given by the court as modified, was an instruction on the duty of Mrs. Doud, the invited guest of Miss Albrecht, to exercise ordinary care to protect herself from injury and gave to the jury a guide for the determination of whether her conduct just prior to the injury she sustained contributed to it. The modification consisted in striking from this instruction a provision that it was the duty of the guest in the exercise of ordinary care “to caution the driver of any danger, to keep a lookout for her own safety, to protest against any reckless, unlawful or dangerous driving.” The court, at defendant’s request, gave instruction No. 12 covering the paragraph stricken from instruction No. 10. In that instruction, after telling the jury that, if it should find that the driver of the car was guilty of contributory negligence which proximately contributed to the injury, it was further told if it should find that Mrs. Doud failed to exercise ordinary care for her own safety “by acquiescing in the negligent manner of driving or failing to protest against same, provided she had time to do so acting as a reasonably prudent person, and that such acquiescence or failure to protest contributed to her injury, then she cannot recover.” We do not intend to be understood as approving the language of instruction No. 12, but quote it only for the purpose of showing that instruction No. 10 was covered by it and the modification complained of was not prejudicial.
On the whole case it appears to us that the issues were presented to the jury under instructions about which the appellants have no cause to complain, and that the testimony warranted the verdict of the jury. The judgment is therefore affirmed. | [
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McHaney, J.
This is an action by appellant to enforce a mechanic’s lien on the buildings and improvements constituting the plant of appellee, American Portland Cement Company, and on one acre of land on which a portion of said plant is located, on an account for $33,-908.90 for labor and material furnished and sold by appellant to said appellee. The account with affidavit for lien was filed with the circuit clerk of Little River County July 11, 1930, and showed that material and labor were furnished between February 28, 1929, and May 23, 1930, the last material sold being on the latter date. The affidavit for lien stated that the materials furnished were used in the construction of the buildings and improvements located on seven forty-acre tracts, describing them by legal descriptions in sections 16, 21 and 28 in township 12 south, range-32 west, which together made a tract of land one-fourth mile wide and one and three-fourths miles long running north and south. Within fifteen months thereafter, on June 15, 1931, appellant brought suit to foreclose its lien and for judgment against said appellee, and in apt time an answer of general denial was filed. Thereafter appellant on November 7, 1932, amended its complaint giving a detailed description by metes and bounds of the exterior boundary of the land on which the plant was constructed consisting of 3.34 acres actually covered by the improvements constituting the plant. It then described in detail the exterior boundary line of a strip of ground one foot wide surrounding the 3.34-acre tract above mentioned containing .99 of an acre. A second paragraph in said amend-. ment describes by metes and bounds a one-acre tract on which a large portion of the cement plant is located, stating that the plant covers more than one acre. It prayed, first, that it be decreed a lien on the buildings and improvements and on the actual land covered by the' plant and the .99 of an acre surrounding it; or, second, in the alternative, that it have a lien on the plant consisting of various connected buildings and plant equipment and upon the one-acre tract last above mentioned. Thereafter on November 21,193'2, a consent decree was entéred giving appellant judgment against said appellee for $32,-309.04, with interest at 6 per cent, from February 1,1930, and a lien was fixed “upon the buildings, erection, improvements and plant of the American Portland Cement Company located upon the following described land, to-wit”; (describing the same seven forty-acre tracts as originally described in the complaint). The decree then continues: “And it is agreed between the plaintiff and defendant, in addition to the lien upon the said plant, that the plaintiff is to have a lien upon the following de scribed land upon which a portion of the plant is located, i. e., upon one acre surveyed and described as follows: ’ ’ describing a tract of land lying nearly north and south, 726 feet long by 60 feet wide, and being the acre described in paragraph 2 of the amendment to the complaint. The decree further recites an agreement to stay execution for six months during which time the cement company might satisfy said judgment by paying appellant 50 per cent, thereof in cash and '50 per cent, in first mortgage real estate bonds, “of the present issue,” which should be a first lien against its properties after satisfaction of the judgment then rendered. Decree was entered accordingly.
The bonds mentioned “of the present issue” referred to bonds secured by a deed of trust dated October 6, 1931, and recorded October 13, 1931, in which appellee Duke was named trustee.
Appellee cement company failed to pay the judgment above mentioned within .the six months as provided in said decree, and on May 22, 1933, appellant had a special fieri facias issued against the lands and improvements described in the decree of November 21, 1932, and, upon the motion of the cement company to recall same, the court made an order granting* another stay of execution of three months from May 22, 1933, upon the payment to appellant of $500 in cash which was then made in open court, and if it should pay $5,000 at the end of three months, then another stay of three months should be granted, or six months from May 22, at which time it should pay appellant the balance of its judgment, interest and costs, else execution should issue therefor. Before the expiration of the time for payment of the $’5,000, certain persons intervened, claiming title to certain machinery sold the cement company under title retaining notes and praying appellant be enjoined from levying execution on the property to which they claimed title. The court enjoined appellant from levying on the property claimed by interveners. Appellee Duke was made a party by interveners, and it developed on the hearing of appellant’s motion to dissolve the .temporary restraining orders that he was claiming title superior to the lien of appellant. Thereafter issue was joined hy appropriate pleadings between appellant and appellee Duke, the latter contending that he was a necessary party to all the proceedings had, and that, since he had not been made a -party until October, 1933, he was not bound thereby; that no lis pendens notice was filed of the materialman’s lien, and that he had no notice of appellant’s claim of lien at the time of the execution and recording of the deed of trust to him; that the affidavit for lien filed by appellant on July 11, 1930, did not properly describe any particular one acre of land on which appellant sought to establish a lien and was void for that reason; that he was not a party to the suit to foreclose said lien and was not bound; that the. complaint in said action did not describe the land sought to be charged with said lien, and that the amendment describing one acre was not filed until more than fifteen months after the affidavit for lien was filed and the proceedings thereunder were void; and other grounds to defeat the lien were set up. He alleged the mortgage to him is a prior and paramount lien on the plant and lands of the cement company because a valid mechanic’s lien was not established.
On the issues thus joined between appellant and Duke, hereinafter referred to as appellee, the court found, on evidence in which there is very little if any dispute on the vital questions, that appellee’s deed of trust is a valid and subsisting lien on the property of the cement company, subject to the title of certain interveners in certain specific personal property, and that it is prior and paramount to the lien and judgment of appellant as theretofore, decreed by the court on November 21, 1932. It further held that appellant did not have a mechanic’s or materialman’s lien against said lands, premises, improvements or property of the cement company, and that its petition and action against appellee should be dismissed for want of equity. This appeal followed.
We have stated, the case rather fully in order to give a history of the litigation. The questions involved are principally, if not entirely, questions of law which have frequently been decided by this court. One of the contentions by counsel for appellee is that the description of the land in the affidavit for lien and in the original complaint was too indefinite and uncertain, did not describe any particular acre of land and, therefore, no valid mechanic’s lien could be predicated thereon. Section 6906, Crawford & Moses’ Digest, provides that persons furnishing labor or material for any building, erection or improvement upon land, “upon complying with the provisions of-this act, shall have for his work or labor done or materials * * * furnished, a lien upon such building, erection or improvement, and upon the land belonging to such owner or proprietor, on which the same are situated to the extent of one acre.” Section 6922, Crawford & Moses’ Digest, provides that the lien claimant shall file with the circuit clerk “a just and true account of the demand due and owing to him, after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit.” The affidavit for lien filed states that the materials furnished, as shown by the itemized statement and duplicate invoices, “were furnished for and were used in the construction of the plant and buildings” of the cement company located on seven forty-acre tracts described, and a lien was claimed on said property, on both improvements and land. We are of the opinion that the affidavit for lien sufficiently described the improvements of the cement company as to afford information concerning the situation of the property to be charged with the lien, and that it is sufficient to enable any one familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others. This is the test many times announced and followed by this court. Barnett Bros. v. Wright, 116 Ark. 44, 172 S. W. 254; Arkmo Lumber Co. v. Cantrell, 159 Ark. 445, 252 S. W. 901; Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 258 S. W. 353; Georgia State Savings Ass’n v. Marrs, 178 Ark. 18, 9 S. W. (2d) 785; Brown v. Turnage Hardware Co., 181 Ark. 606, 26 S. W. (2d) 1114. In the case last cited 360 acres were described in tbe affidavit and complaint by governmental subdivisions, and tbe decree adjudged “a lien upon one acre of the 360 acres * * * being that part upon which bis homestead was situated.” Tbis court held tbe lien good against a charge of insufficient description. In that case, tbe late Chief Justice Hart, speaking for tbe court, after quoting from Arkmo Lumber Co. v. Cantrell, supra, said: “In tbe application of tbis principle (relating to sufficiency of description as above announced), tbe fact that tbe claim filed under tbe statute described more land than is subject to tbe lien does not defeat tbe lien as to tbe amount of land subject thereto under the statute where tbe claim and tbe account filed with it, duly verified as required by statute, indicate tbe improvement so that it can be identified by persons of ordinary intelligence. To bold otherwise would subject substance to form, and deny tbe lien to persons clearly entitled thereto under tbe statute.” If tbe improvements are sufficiently described, then tbe law fixes the. amount of land to be covered by tbe lien, and it is a mere matter of surveying to determine tbe correct description.
Nor was it necessary to file a lis pendens notice. Tbe lien statute provides what shall be done to preserve tbe materialman’s lien, and, when tbe statute is complied with, all persons dealing with tbe property subject to such lien must take notice thereof. In this case, the mortgage was not executed until long after tbe lien was filed, and was not recorded until two days after tbe 15 months time in which to bring a suit to foreclose bad expired. A subsequent purchaser must take notice of the right to file a lien within 90 days after any work or labor has been performed or material furnished, even though the record fails to show such lien. Owen v. Continental Supply Co., 175 Ark. 741, 300 S. W. 398; Bell v. Koontz, 172 Ark. 870, 290 S. W. 597.
It is also insisted by appellee in support of tbe judgment of the trial court that appellant did not file its claim for lien within 90 days after tbe last material was furnished, and it is argued that tbe last materials furnished under tbe contract were in January or February, 1930, and that the two items furnished on April 29, and May 23, were not furnished under the original contract and were but “extras,” and that since the affidavit for lien was filed on July 11, thereafter, the material furnished up to January or February, 1930, was not within the lien. The law in this State in this regard has been well settled since the case of Kizer Lbr. Co. v. Mosely, 56 Ark. 516, 20 S. W. 409, where the court said: “If the materials were furnished under one contract, he should file the account within ninety days after the last was delivered; but if the materials were furnished under separate and distinct contracts, it should be filed under each contract within the time limited. Livermore v. Wright, 33 Mo. 31; 2 Jones on Liens, paragraphs 1431-1434, and cases cited. If, however, he began to furnish ‘without any specific agreement as to the amount to be furnished ’ or the time within which they were to be furnished, and there was a ‘reasonable expectation that further material’ would ‘be required of him,’ and he was ‘afterwards called upon from time to time to furnish the same,’ he should file it within ninety days after the last item was delivered. In such a case, if the materials were ‘furnished at short intervals, and were appropriate to the condition and progress of the building, a presumption would arise that it was understood from the beginning that the ‘materialman was to furnish the same’ for the construction of the building as the same should be required ; and the account therefor should be considered as one continuous account and one demand; and the last item thereof would be ‘the date from which the limitation of the time of filing’ should be taken.” Marianna Hotel Co. v. Livermore F. & M. Co., 107 Ark. 245, 154 S. W. 952; Van Houten Lumber Co. v. Planters’ National Bank, 159 Ark. 535, 252 S. W. 614; Planters’ Cotton Oil Co. v. Galloway, 170 Ark. 712, 280 S. W. 999. The undisputed proof shows that there was no contract for any definite amount of material, but on January 19, 1929, appellant submitted a proposal to the cement company to furnish it a lot of steel, consisting of an approximate, number of tons for different purposes at a unit price of a specified amount per cwt. No written or oral contract to furnish any particular quantity of material was entered inlo. The cement company accepted the proposal, and thereafter it began ordering out the material as the construction of its plant progressed. The fact that the word “extras” appeared on the invoices for the items shipped in April and May, 1930, is explained by the fact, as were a number of other invoices for items shipped in 1929 and prior to February, 1930, that they were less than carload lots and under such conditions the cement company was required to pay the freight thereon. The testimony shows that the items in the whole account constituted a continuing and running account up until May 23, 1930, and that there was reasonable expectation that these latter items would be required and would be ordered. We therefore hold that the affidavit for lien was filed in ample time, the ninety days running from the date of the last item on the account.
Another argument made to uphold the decree of the trial court is that “no sufficient action was brought within the statute of limitations.” It is conceded that the suit was filed within fifteen months after filing the lien as required by § 6926, Crawford & Moses’ Digest, but it is insisted that neither the affidavit for the lien nor the complaint disclosed any particular one acre of land or any particular building, erection or improvement upon which a claim for lien was made. We cannot agree with appellant in this contention. As we have already pointed out, the affidavit for a lien and the complaint sufficiently identified the improvements located upon the land, on both of which a lien was sought, on the land to the extent of one acre given it by law. The amendment to the complaint which did describe the one acre of land by metes and bounds was not the commencement of a new action, but only more particularly described the land upon which a lien was sought.
It is also contended that appellee Duke was a necessary party, and, not having been made a party by appellant, the proceedings as to him were void. We cannot agree. At the time appellant’s affidavit for lien was filed, and at the time the suit to foreclose the lien was filed no' mortgage had been executed, and, of course, none recorded. The decree foreclosing said lien was entered thereafter. But the decree itself recognizes the fact that there was a mortgage at that time, but that it was inferior to the lien of appellant. Said decree speaks of “bonds of the present issue” and provides that the cement company might pay its debt partly with such bonds. The lien of the deed of trust or mortgage being inferior to that of appellant, appellee Duke’s rights are not affected because he was not made a party, for he still had his equity of redemption, just as any other junior lienor had who was not made a party to the foreclosure of the prior lien.
Other incidental questions are argued in support of the decree, all of which we have carefully considered and find them without merit. We have reached the conclusion that appellant is entitled to a lien upon all the improvements into which any of its material or labor entered and into the one acre of land described and upon which a lien was fixed in the original consent decree set aside by the subsequent decree and that appellant is also entitled to a judgment against the American Portland Cement Company for the full amount of its debt, less the $500 payment made as above mentioned to obtain a stay of execution, with interest from the first day of February, 1930, at 6 per cent, per annum as decreed by consent in the original decree.
The decree of the chancery court will be reversed, and the cause remanded with instructions to enter a judgment for the amount above indicated, such judgment to bear interest from that date at 6 per cent., and to fix a lien upon all the plant, buildings, erections, improvements of the appellee cement company and for a lien upon the one acre of land as described and decreed in the said original decree which shall be superior and paramount to the lien of appellee Duke under his deed of trust, or any others claiming any interest under him or under said American Portland Cement Company since the accrual of the lien herein established, and that appel lant shall recover all its costs herein expended. It is so ordered.
J ohnson, C. J., disqualified and not participating. | [
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Johnson, C. J.
This proceeding is an attack by a creditor upon a deed conveying a 40-acre tract of land situated in Lonoke County and a certain transfer of 48 shares of common stock in a cotton gin plant. The con veyance and stock transfer were made by appellant, A. H. Kaufman, to Ms wife, Irvey Shifflett Kaufman. The evidence on behalf of appellee tended to establish the following facts:
That on and prior to March 30, 1932, A. H. Kaufman was indebted to appellee in a sum in excess of $9,000 and was otherwise indebted in a very large sum of money. On this date A. H. Kaufman appeared to be the owner of the 40-acre tract of land, same being in his name upon the records of the county, and the 48 shares of gin stock were also possessed and controlled by him. On December 23, 1932, there was filed for record in Lonoke County a deed from A. H. Kaufman to his wife, conveying this 40-acre tract. This deed purported upon its face to be executed April 15,1928. On July 3,1932, A. H. Kaufman caused to be transferred and assigned to his wife the 48 shares of gin stock. These conveyances denuded A. H. Kaufman of all his visible property. The testimony on behalf of appellants tended to establish that the deed dated April 15,1928, from A. H. Kaufman to his wife was a valid gift, made and executed at a time when A. H. Kaufman was solvent; that the transfer of the gin stock on July 3, 1932, by Kaufman to his wife was the consummation of the previous intentions of the parties in that Mrs. Kaufman had furnished the purchase price of the gin stock and had always been the equitable owner thereof.
Upon the evidence thus adduced, the trial court rendered judgment in favor of appellee and against A. H. Kaufman for the sum of $10,441.72; determined that the deed from A. H. Kaufman to his wife of April 15, 1928, to the 40-acre tract of land was fraudulent and void and should be canceled in so far as it affects appellees’ right as a creditor; and further adjudged that the transfer of the 48 shares of gin stock by Mr. Kaufman to his wife was fraudulent, but that the wife had in good faith advanced to her husband, as a loan, $450, which was used by Mr. Kaufman in the purchase of said gin stock and decreed a lien, in favor of Mrs. Kaufman against the gin stock for this sum. No cross-appeal has been prosecuted from this branch of the case. The chancellor was fully warranted in finding that the deed from A. H. Kanfman to his wife conveying the 40-acre tract of land was fraudulent. The validity of this deed, the intentions of the parties in reference to its execution and the facts and circumstances surrounding its execution and the parties thereto should be ascertained and determined as of date the deed was filed for record, and not of its purported date of execution. It is practically admitted by Mr. Kaufman that on December 23,1932, the date on which this deed was filed for record in Lonoke County, he was notoriously insolvent, and all the testimony adduced tends to establish this fact. The rule of law, in reference to conveyances under the facts and circumstances here presented is well settled in this State, and is to the following effect:
“Conveyances made to members of one’s household and to near relatives of an embarrassed debtor are looked upon with suspicion and scrutinized with care; when voluntary they are presumed fraudulent, and when the embarrassment of the debtor proceeds to financial wreck such conveyances are conclusively presumed to be fraudulent as to existing creditors.” Wilkes v. Vaughan, 73 Ark. 174, 83 S. W. 913; Papan v. Nahay, 106 Ark. 230, 152 S. W. 107; Brady v. Irby, 101 Ark. 573, 142 S. W. 1124; Fluke v. Sharom, 118 Ark. 229, 176 S. W. 684.
Moreover, viewing this deed from the standpoint of the date of its purported execution — that is to say April 15, 1928 — Mrs. Kaufman cannot succeed in this action. We have many times held that, where a wife permits her husband to possess and control her separate property as his own and creditors rely upon such apparent ownership in the husband and lend credit thereon, the wife is estopped to assert her superior rights. Haffke v. Hempstead County Bank & Trust Co., 165 Ark. 158, 263 S. W. 395; First Nat. Bank v. Herring, 159 Ark. 317, 252 S. W. 37; Bunch v. Empire Cotton Oil Co., 158 Ark. 462, 250 S. W. 530.
The doctrine just announced has full application to the transfer of the gin stock. Conceding that Mrs. Kaufman furnished the money for the purchase of this stock in 1925, she thereafter permitted her husband to possess and control it as his own until July 3, 1932, and by these affirmative acts led creditors to believe that A. H. Kaufman was the true and lawful owner thereof. She will not now be heard to say otherwise.
The decree is correct, and must be affirmed. | [
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Butler, J.
Appeal from allowance by the chancery court of attorney’s fees in the sum of $5,000, to be taxed as costs in casé of El Dorado Building & Loan Ass’n v. Union Savings Building & Loan Ass’n, ante p. 858, and payable out of funds in the hands of the receiver.
Reference is made to our opinion in the above case, filed October 29, 1934, for an understanding- of the issues there involved.
The appellees, Marsh & Marsh, were employed by Mrs. Lilla McGrraw and later by several other persons, all of whom were investment stockholders in the El Dorado Association, to bring- the action resulting- in the decree which was affirmed by this court in the case supra. The suit was brought for the benefit of all the investment stockholders. The motion for the allowance of the attorney’s fee was resisted by certain of the investment stockholders, and testimony was taken relative to the character and extent of the services performed by the attorneys and the reasonableness of the fee suggested by them, which was $10,000. The testimony as to the amount of fee properly to be charged varied from fifteen hundred to ten thousand dollars.
It is the contention of the protesting stockholders that they were represented by their own counsel; that no necessity existed for the institution of a lawsuit, and no benefit to the investment stockholders resulted therefrom. In developing the first contention, there was testimony tending to establish the fact that certain of the investment stockholders had employed attorneys to represent them, and there is some testimony to the effect that one attorney took some part in the preparation of the case for submission. The other attorney employed admitted that he took no part in the proceedings, and that in his judgment there was no necessity for bringing the suit. There is a conflict in the testimony as to just what action, if any, was taken by attorneys other than the appellees. There is testimony to the effect that appellees were not advised of the employment of other attorneys, and that there were no steps taken by any one except the appellees in the preparation and conduct of the action.
No one is more intimately acquainted with the proceedings, the character of services performed, and the attorneys who took part in the litigation, than the chan cellor who tried the case, and during the course of the investigation relating to the propriety of the allowance of an attorneys’ fee he had occasion to, and did, express his opinion regarding the conduct of the attorneys said to have been employed by the protesting stockholders. He said this: “The attorneys have stood idly by in the courtroom, and have not joined in the fight. They accept the fruits of his labors (referring to appellees) knowing the law as to implied contracts.” Again he said: “During all this time, at any time during the prosecution of this case you could have taken it away from Judge Marsh, and could have asked the court to fix the fee up to that time. If you, who are representing a majority of the stockholders, have, found no fault with what Judge Marsh has done in the case, we will pay him for what he has done, and you can go forward from here on with your own clients. The court would have so held at all times during this case. ’ ’
We, ourselves, are acquainted with the record in the case out of which the instant proceeding arises, and it is our conclusion that, taken as a whole, it corroborates the testimony of witnesses for the appellees to the effect that they, and they alone, were the attorneys appearing and engaged in the conduct of the cause, and that the protesting stockholders acquiesced in this. We conclude that the finding of the chancellor in this regard is supported by a preponderance of the testimony.
In support of their contention that no necessity existed for the institution of the suit, the attorneys for appellants argue that the Union Savings Building & Loan Association was ready to concede the invalidity of its contract with the El Dorado Association, and to surrender the assets it had received from said association. Counsel also say that the guaranty stockholders were ready and willing to disgorge the assets they had unjustly received, and that therefore the result of the lawsuit was no more than could have been obtained without it. In answering this contention, it may be said that now, as of old, “actions speak louder than words,” and the facts are that the Union Savings Building & Loan Association, and the guaranty stockholders contested the action, through every step until the case was finally decided against them on appeal to this court.
It is suggested in the argument that the suit was not amicable in that it was an adversary proceeding between the plaintiffs, investment stockholders and defendants, guaranty stockholders. This is true, but the class for whom the suit was brought was the investment stockholders, and as to them the suit was amicable.
From a consideration of the' conclusions reached by the trial court based on, the facts above stated, the appellees are dearly "entitled to a fee on the authority of the cases cited by appellants, properly allowable as costs to be paid from funds in the hands of the receiver. The cases relied on are: Bradshaw & Helm v. Bank of Little Rock, 76 Ark. 501, 89 S. W. 316; Gardner v. McAuley, 105 Ark. 439, 151 S. W. 997; Valley Oil Co. v. Ready, 131 Ark. 531, 199 S. W. 915.
In the first named case the general principle governing the question of the allowance of an attorney’s fee to be paid out of the fund is thus stated: “When many persons have a common interest in a fund, and one of them for the benefit of all brings a suit for its preservation, and retains counsel at his own cost, a court of equity will order a reasonable amount to be paid to him out of the funds in the hands of the receiver in reinabursement of his outlay. ’ ’
As to the excessiveness of the fee allowed counsel for the appellants question the fact that a fund for the benefit of the investment stockholders was obtained as fruits of the litigation, on the theory that the defendants in the original case were willing to concede all the. contentions of the plaintiffs. We have already disposed of that question. They also question the value of the assets recovered. An examination of the opinion filed October 29, 1934, discloses that a substantial benefit has resulted from the litigation. The investment stockholders recovered assets of the face value of $125,000 from the guaranty stockholders, and a judgment for more than $6,000 against an individual, as well as having the contract between the two Building & Loan Associations avoided, the assets to be administered by a receiver of their own choice.
It is suggested. that the fee should be limited to an amount which would be reasonably chargeable against the stockholders who employed the appellees, and that this, under the contract between them, would be a little more than $1,000. For authority for this contention, we are referred to statements made by the court in the above cases and particularly to' the case of Gardner v. McAuley, supra. That case was a suit where lands were partitioned according to the respective interests of the tenants in common as found by the court. This was not an amicable proceeding, but an adversary suit, and for that reason the court found that no attorney’s fee should be allowed. In explaining the effect of the decision, the court said: “We are not to be understood as holding that, where one or more tenants in common brings suit against the other tenants in common for partition, and there is no appearance or resistance, the proceedings resulting in an amicable partition of the property, the fees of the plaintiff’s solicitors should not be. taxed against all the parties. That question does not arise in this case under the facts as before related. But, even in that sort of a case, if the fees are taxable, they can only amount to such sum as the solicitor can appropriately charge his own client, and not the fee he might have charged if employed by all of them. Bradshaw v. Bank of Little Rock, 76 Ark. 501, 89 S. W. 316. ‘The object of the allowance, said this court in the above cited case, ‘is not to give the attorneys a larger fee than they might have recovered from their own clients but to shift the burden of the charge from them, and place it upon the creditors of the bank generally. The inquiry 'then is, what would have been a reasonable charge against their own clients for the services performed?’ ”
In Bradshaw v. Bank of Little Rock, supra, the attorney brought suit for the. benefit of his own client, but it was one for the benefit of all creditors of the bank and prosecuted with their acquiescence.. For that reason the court held that the attorney was entitled to have his fee paid out of the assets in the hands of the receiver. The court further found that no fund had been created, recovered, or preserved, and that therefore, the amount of the fee should be limited to a sum reasonably to be charged against the attorney’s own client for the services performed, remanding the case to the court below to ascertain that amount.
The. general rule stated in Bradshaw v. Bank, the application of which to the facts in that case constrained the court to hold that an attorney’s fee was properly allowable to be paid out of the fund, is not operative except where the services rendered have inured to the benefit of all the creditors; nor is it operative where each of the creditors is represented by a different attorney working independently for a common purpose. 14 C. J., § 3151, “Corporations.” In the Bradshaw case, in discussing what would be considered in fixing the amount of attorney’s fee, the court said: “If their services had resulted in securing or producing a fund for the benefit of the creditors, then the amount of this fund might well be the main element to be considered in fixing” the amount of such fee; but no such fund was produced here.”
It is to be observed that in the judgment of the chancellor no conditions existed to render the principle inoperative, and that there was a fund recovered and preserved by means of the suit which inured to the benefit of all the parties in the class of plaintiffs. Therefore the limitation of the fee to an amount properly chargeable against the appellees’ own clients, as held in the cases cited, is not applicable. The inquiry then is, what would be a proper fee to be chargeable against the fund which had been recovered and preserved? In considering this question, the amount of such fund is important, and it was upon this theory that the witnesses for appellees based their judgment as to a reasonable fee, as did also the court in reaching its conclusion, taking into consideration the ability of counsel for the appellees, the nature and extent of the services rendered and the result obtained.
In questioning the judgment of the trial court, counsel for appellants refer to the amount allowed by this court as a reasonable attorney’s fee in the case of Valley Oil Co. v. Ready, supra. In that case no fund was recovered, and the case was amicable only in its initial stages. The fee was allowed for attorney’s services only during the period in which the proceedings were amicable, and was fixed at a sum which the court found to be reasonable for such services. In the instant case, however, it will be seen that an entirely different state of facts exist from those in that case, and we are of the opinion that, taking all these facts into consideration, the judgment of the chancellor should not be disturbed.
We therefore affirm the decree. | [
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McHaney, J.
Appellant was indicted, tried, convicted and sentenced to the penitentiary for one year on a charge of assault to rob one Susie Lloyd. This appea] challenges the sufficiency of the evidence to support the verdict and judgment against him. The Attorney General has confessed error, and this confession must be sustained.
Mrs. Susie Lloyd, the prosecuting witness, testified as follows: “Yes, sir, and when he (appellant) came up tolable close to the front gate, I was on the porch and he said, ‘What are you doing with this big snake out here?’ and I said ‘I didn’t know there was one there,’ and he got a small stick and started to kill the snake and I gave him a big stick, I carried a big stick out to him and he killed the snake and came in and sat on the porch and sat there and talked awhile, — he talked a little while and after awhile he got up and went down the steps and he just slid his hand down on the banister and turned around, and when he got up and started out I got up and stepped over on the porch and he just turned around and put his hand there and says, ‘I want some money’ and 1 says, ‘I haven’t got no money.’ ‘Got no money,’ he says, ‘Oh yes, you have, I have been told,’ and I says, ‘I have not got no money,’ and he says, ‘Oh, yes, you have and you will have to get it, I want five dollars,’ and don’t know how many times he repeated it and I looked down toward the road and I saw some one at the gate, and I said, ‘I see some one at the gate.’ ” 'She further testified that he had the club with which he killed the snake in his hand, but did not make any motion with the club and was digging with the stick in the ground while he was demanding the money; that he was there perhaps a half hour talking to her before he said anything about wanting money, never did use any rough language or do anything at all to force her to give him the money. He used no force or violence, nor did he commit any overt act in attempting to get the money. He made no use of the stick that would constitute an assault, nor did he threaten to do so in any way.
Our statute, § 2330, Crawford & Moses’ Digest, defines assault as follows: “An assault is an unlawful attempt, coupled .with present ability, to commit a violent injury on the person of another. ’ ’
This court held in Wells v. State, 108 Ark. 312, 157 S. W. 389, that drawing a knife and advancing toward the prosecuting' witness constitutes an assault, although the prosecuting witness fled and the defendant did not follow. In this case, while appellant held the stick with which he killed the snake, it is' shown by the prosecuting witness that he made no attempt to use it, nor did he draw the stick back as if to inflict an injury, or advance upon her with the drawn stick. In fact, it is not shown that he was, at any time after demanding the money from her, within striking distance of her. In other words, there must be some overt act in execution of his purpose to rob. As said by this court in Johnson v. State, 132 Ark. 130, 200 S. W. 982. “Mere preparation for an assault does not complete the offense, but any overt act in partial execution of the design to make an assault completes the offense.”
In 2 E. 'C. L., § 9, p. 533, the rule is stated as follows: “In order to constitute an assault, there must be an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do physical injury to the person of another. The act'must be such as will convey to the mind of the other person a well grounded apprehension of personal injury. It is difficult in practice to draw the precise line which separates violence menaced from violence begun to be executed. It may safely be stated, however, that where an unequivocal purpose of violence is accompanied by an act which, if not stopped or diverted, will be followed by personal injury, the execution of the purpose is then begun and the battery is attempted. This principle has been adopted as the correct exposition of the law of assault. There must therefore be not only threatening words or violence menaced, but the defendant must have committed some act in execution of his purpose. It is not necessary at all that his words should be accompanied or followed by an actual battery, for a mere-assault excludes the idea of a battery, but he must either offer to do violence, as by drawing back his fist or raising a stick, or attempt to do it, as by aiming a blow at another which does not take effect because it is warded off by a third person, or by shooting at another and missing the mark.”
Under this rule, it is clear that appellant has been convicted of the crime of assault to rob without substantial evidence to support the charge. The confession of error of the Attorney General must be sustained, and the judgment of conviction be reversed, and the cause remanded for a new trial.
It is so ordered. | [
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Butler, J.
In April, 1932, M. W. Wreyford was, and had been for about two years preceding, in the service of the National Refining Company as a filling station manager at the company’s filling station located at 23d and Arch streets in the city of Little Rock. It was his duty to sell gasoline and motor oil and to grease cars and keep the station clean. This was done under the supervision of a Mr. Crane, the assistant superintendent of stations, who from time to time would visit each station to observe the manner in which the business was being conducted and the stations maintained and to give such orders in relation to the conduct of the stations as occasion required. It was the duty of the station managers to obey these orders.
At the station in question the motor oil was kept in a back room which was floored with concrete, there being five barrels containing oil, which when full would weigh approximately 500 pounds each. On a morning in April, 1932, while moving the oil barrels, Wreyford fell to the floor and one of the barrels containing oil rolled upon him causing an injury, to recover damages for which vthis suit was instituted. Wreyford alleged that the injury was occasioned by the negligence of the master in requiring him, unaided, to move the barrels of oil. The answer denied the allegation of negligence, and affirmed that the injury was occasioned by a risk ordinarily incident to the employment of Wreyford for which the company was in no wise responsible. At the conclusion of the testimony the court submitted the question of negligence of the company and the assumption of risk by Wreyford to the jury, overruling a motion by the defendant company for an instructed verdict. There was a verdict and judgment in favor of the plaintiff, the correctness of which, is challenged by this appeal on the ground that the court erred in refusing to direct a verdict in favor of the defendant as requested.
The appellant contends that the evidence fails to establish actionable, negligence on its part, but that it shows that whatever injury Wreyford sustained was the result of a danger which was better known to him than to any one else; that it was not occasioned by any negligence of the master, but was one of the hazards incident to his employment.
The evidence most strongly tending to sustain the allegations of the complaint was the testimony of the appellee, Wreyford, which, briefly stated, is to the following effect: At the time of the accident appellee was a strong, able-bodied, man weighing about 190 pounds, and had been in the service of the appellant for a little more than two years. He was familiar with the duties incident to the work in which he was engaged. He first testified, and so also did some witnesses called in his behalf, that the accident occurred on the morning of April 12,1932, but, on being recalled at the request of the appellant and being shown reports signed by him on the 12th, 13th and 14th of April, 1932, he- corrected his testimony as first given as to the date of the accident, stating that it occurred on the 15th of April, instead of the 12th. He stated that on this morning he discovered that some oil had leaked upon the floor of the room where the motor oil was stored; that he at once reported this fact by telephone to Mr. Crane, his immediate superior, requesting that the latter send some one to help him move the barrels in order to ascertain which one was leaking; that, instead of complying with his request, Crane said, “You can move those barrels.?’ Witness replied, “I might can move them, but I would like to have some help,” and Crane said “Go in there and move the barrels. — find the one that’s leaking and call me back so I can send the correct amount of cans out there to put the motor oil in — we haven’t any more barrels.” Appellee then proceeded to move the barrels. He moved four of them, each of which contained only a small amount of oil and found that none of them were leaking. Notwithstanding this he undertook to move the fifth barrel, which he estimated to contain around 45 or 50 gallons, but which, when the oil was taken out and measured, was found to contain about 30 gallons. In this barrel a pump was installed, and appellee testified that, as he was moving the last barrel and had gotten it out where he thought he could handle it, and started to turn it, the pump attached to the barrel hit him on the leg, knocking him down, and the barrel then rolled or fell on top of him; that he was unable to arise without help and remained on the floor until some one moved the barrel and assisted him to get up.
There was no contention or evidence to the effect that the pumps were improperly installed or that Crane was informed by Wreyford of any particular amount of oil in any one of the barrels. The only information given Crane by Wreyford was that the oil was leaking on the floor of the storage room. Appellee stated that there were five or six gallons of oil wasted on the floor. From the last report of the oil on hand on the 14th of April, 1932, it appeared that there were only 132 gallons of oil in all five barrels.
Counsel for appellee contend that the questions raised by the pleadings were properly submitted to the jury, and were for it to consider under the rule announced in 18 R. C. L., p. 655, which has been approved by this court in Choctaw O. & G. Ry. Co. v. Jones, 77 Ark. 367, 92 S. W. 244; Clark Lbr. Co. v. Northcutt, 95 Ark. 291, 129 S. W. 88; Dickinson v. Mooneyham, 136 Ark. 606, 203 S. W. 840; Griffin v. St. L. I. M. & S. R. Co., 121 Ark. 433, 181 S. W. 278; Woodley Pet. Co. v. Willis, 172 Ark. 671, 290 S. W. 953; Owosso Mfg. Co. v. Drennan, 182 Ark. 389, 31 S. W. (2d) 762; Berry’s Sons Co. v. Presnall, 183 Ark. 125, 35 S. W. (2d) 83, and the recent case of Chapman v. Henderson, 188 Ark. 714, 67 S. W. (2d) 570. The rule involved in all these cases is that an element which may affect an employee’s appreciation of the perils of his employment is a command by one in authority to do a particular act, or an assurance that such act may be performed without danger. This is on account of the relation existing between the master and servant that the latter shall yield obedience to the former and may ordinarily assume that the command may be obeyed without danger, or may be relied upon as an assurance, of safety. Especially is this true when the command is sudden and where the situation gives little time for reflection and deliberation. In this state of case the employee is justified in subordinating his own judgment to that of his superior, and, notwithstanding any misgivings and doubts on his part, may ordinarily rely on the advice or the assurance of safety of his superior. In cases of this sort the employee is not required to weigh the degree of danger and decide whether it is safe for him to act and, in a measure, he is relieved of the usual obligation to exercise, ordinary caution in the performance of his work. In ordinary cases he may assume that the employer has superior knowledge and may rely thereon; especially so, when the act to be performed could be made safe by the exercise of special care on the part of the employer, which the employee may assume has been done. This rule is founded on the psychological truth that habits of obedience are formed by employees to a degree which often overrules independent thought and action, and thus deprives them of the exercise of intelligent foresight and prudence which would otherwise, protect them. The rule, however, has application (as will be discovered by a review of the cases cited) where the superior who gives the command is present in person actually directing the performance of the work, or where the command is given with a degree of knowledge equal to that of the employee as to the situation and circumstances surrounding the performance of the act commanded. The question of assumption of risk of the danger arising from an act commanded by a superior, under the rule stated, is always under circumstances from which the jury might find that the command was negligence in that it directed the performance of an act which, from its very nature, or from the attendant situation and circumstances, might be reasonably apprehended as dangerous to the employee.
In the instant case, we perceive no evidence from which the danger of injury in obeying the command might have been reasonably anticipated by the superior. According to the appellee’s testimony, he made no claim that he informed Crane that it was dangerous to move the barrels by himself, or that he so considered it. He gave Crane no information as to the approximate number of gallons of oil contained in any one of the five barrels, and it will be remembered that there were only 132 gallons in all five barrels. The only information given Crane was that the oil had leaked and covered the floor of the storage room, and this appears not to have been the cause of Wreyford’s fall, but that the pump attached to the barrel came in contact with his leg as the barrel was being moved. It also appears that the purpose for which Crane’s command was given — to discover from which barrel or barrels the leak was proceeding — had been accomplished when the first four barrels were moved and no leak was found. There was no necessity for any further movement of the barrels and the act of the appellee in moving the fifth barrel was purely voluntary. Crane was not present when the command was given to move the barrels. He was at a distance, being communicated with by telephone, and as Wreyford failed to apprise him of any particular reason for needing help, it was reasonable for him to assume that the movement of the barrels by Wreyford, unaided, might be accomplished with no particular danger, nor can we see where any danger would ordinarily result. Wreyford had complete knowledge of the situation and Crane did not. Under the circumstances it appears that the cause of appellee’s fall was occasioned by no negligence of the employer, but was one of those dangers ordinarily attendant upon the performance of his work.
It follows from the views expressed that the judgment of the trial court must be reversed, and, as the cause appears to have been fully developed, the case is dismissed. | [
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McHaney, J.
Aaron McMullin and Lula McMullin, his wife, were for a long time residents of Tyronza in Poinsett County. The former became quite prosperous and was the owner of substantial properties. His wife, Lula, died intestate January 14, 1929. He died testate August 7, 1930. No administrator was appointed on the estate of Lula McMullin until after the death of her husband. At the time of her death she had on general deposit in the Bank of Tyronza, hereinafter referred to as the bank, $3,220 and a time deposit of $3,115.32. Shortly after her death, to-wit, on February 5, 1929, the bank, of which Aaron McMullin was a stockholder, director and vice-president, permitted him to withdraw the sums above mentioned to her credit amounting with interest to $6,368.20, and deposit same to his credit. This transaction forms the basis for the first suit by her administrator and was brought against the bank and his executor to recover said sum of money. The bank was later found to be insolvent, was taken over by the Bank Commissioner for liquidation, and appellant J. A. Emrich was appointed Deputy Bank Commissioner for this purpose, he having agreed with the Commissioner, if appointed, to pay all creditors of the bank in full. The complaint was thereafter amended to make the Bank Commissioner and Emerich parties defendant, and judgment was sought against Emrich who was president of the bank for the wrongful misappropriation of said funds and on his promise to pay all claims in full. Trial resulted in a decree for the administrator against all defendants for said sum with interest. One branch of this appeal challenges the correctness of the decree in this respect.
In 1928 Aaron McMullin purchased from the Odd Fellows Lodge a plot of ground in Tyronza, paying the purchase price of $1,000 in cash, and thereafter erected a brick building thereon at a cost of some $6,000 a portion of which was leased for theater purposes and will hereafter be referred to as the picture show property. Warranty deed dated April 21,1928, was executed by the Odd Fellows Lodge, through its officers and delivered to Aaron McMullin. This deed has been lost or destroyed, but was recorded August 20, 1928, and the record shows the grantees were Lula McMullin and Aaron McMullin. On May 15,1929, after the death of Lula, Aaron McMullin mortgaged this picture show property and certain of his farm lands to J. L. Dean as trustee for the bank to secure a large indebtedness to it, which mortgage was promptly recorded the next day. In October, 1929, Aaron McMullin conveyed all the lands mortgaged to the bank to his nephew, Ivan McMullin, including the picture show property. After Aaron McMullin’s death, the administrator and heirs at law of Lula McMullin, deceased, brought an action against the bank and Ivan McMullin, to reform the deed to the picture show property in which it was alleged that the conveyance was to Lula McMullin alone, and that the name of Aaron McMullin had been inserted in said deed fraudulently before the record thereof; and that the conveyance to Ivan was fraudulent, and, Aaron McMullin not having any title, the mortgage to the bank was void. Prayer was for reformation so as to place the title to the picture show property in the heirs of Lula McMullin and to cancel the deed to Ivan and the mortgage to the bank.
After the insolvency of the bank, the Commissioner brought suit to foreclose the mortgage given it by Aaron McMullin. Two creditors, Abston, Wynne & Company and Dillard & Coffin Company, intervened and alleged the insolvency of Aaron McMullin at the time of the conveyance of the properties by him to Ivan McMullin and prayed a cancellation thereof as'a fraud on creditors. The court entered a decree denying reformation of the deed to the picture show property, foreclosing the mortgage in favor of the bank and refusing to cancel the deed to Ivan McMullin. Another branch of this appeal challenges the correctness of the decree refusing to reform the deed to the picture show property to show a conveyance thereof to Lula McMullin alone. The two intervening creditors prayed but were not granted an appeal in the trial court, and no appeal has been granted them in this court.
A brief has been filed by counsel for said creditors, but counsel for Ivan McMullin has moved to strike same on the ground that they have not appealed. This motion must be granted, as the judgment against them has become final, no appeal haying been taken by them within the time provided by law. Camden National Bank v. Donaghey, 145 Ark. 529, 237 S. W. 457. Nor can they be treated as cross-appellants, as provided in § 2166, Crawford & Moses’ Digest. See Porter v. Morris, 131 Ark. 382, 199 S. W. 106; Myers v. Linebarger, 144 Ark. 389, 222 S. W. 720; Gordon v. Reeves, 166 Ark. 601, 267 S. W. 133; Scott v. Stephenson, 168 Ark. 763, 271 S. W. 714. Said creditors are neither appellants nor co-appellees. Said brief will be stricken.
As to the deposit of Lula McMullin in the bank which was withdrawn by her husband after her death, we are of the opinion the court erred in rendering judgment against appellants The undisputed evidence shows that she had no income of her own, except small amounts from, the sale of butter, eggs and milk; that the deposit was made with funds belonging to Aaron McMullin and deposited to her credit for his convenience; that at the time the account was opened, and at all times, it was agreed and under stood between them and the bank that either could check against the account; and that in reality it was his account in her name. Checks were drawn by him against this account from time to time, and no objection was ever made by her to the bank or to any one else. Having paid the money to Aaron McMullin, the apparent and actual owner of the deposit, it would be a great injustice to require appellants to pay it again on the suit of the administra ■ tor of her estate who waited until afer his death to institute the suit. This part of the judgment will be reversed and the cause dismissed.
As to the suit to reform, we are of the opinion that the court correctly refused reformation. While it is true the three trustees of the Odd Fellows Lodge who signed the deed and the notary who wrote it and took the acknowledgments testified very positively that the conveyance of the picture show property was to Lula McMullin alone, and that Aaron McMullin was not a grantee therein, there are other facts and circumstances that speak louder than the memory of witnesses. The deed has been lost or destroyed and was not in evidence. The record of the deed was in evidence, and it showed a conveyance to Lula McMullin and Aaron McMullin and unto their heirs and assigns forever. If it had been originally written to Lula McMullin alone, it would have required the interlineation of the name of Aaron Mc-Mullin four times, and the word “her” would have been changed to the word “their” two times. No such changes were noted on the record although the statute, § 8629, Crawford & Moses’ Digest, provides: “Each recorder shall record every deed by entering them word for word and letter for letter, and noting at the foot of each record all interlineations, erasures, etc.” There is a presumption of law, rebuttable, of course, that the recorder performed his duty in this regard. Since no interlineation or erasures were noted, the presumption is that none appeared in the deed. Another circumstance is that Aaron McMullin at all times handled or managed the property as his own. He rented it to the picture show owner and others as his own, collected the rents and bandied them as bis own. He occupied an office in the building himself. Another fact testified to by the cashier of the bank is that, when he took the mortgage, McMullin delivered to him the deeds to the property so that it could be properly described in the mortgage, and that the deed to the picture show property was made to Lula and Aaron McMullin, and that it did not show any interlineations and erasures. There are other facts and circumstances tending to support the court’s finding in this regard, but we deem it -unnecessary to detail them. Suffice it to say that the decree is proper and is supported by the weight of the evidence. At least, we are convinced that the evidence is not sufficient to meet the clear and convincing rule for the reformation of written instruments as the law requires, announced in many decisions of this court.
This branch of the appeal will be affirmed. Costs will be adjudged against appellees. | [
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Humphreys, J.
The issues of this appeal are whether, first, a contract providing for the Union Savings Building & Loan Association of Little Rock, Arkansas, to absorb- the assets of the El Dorado Building & Loan Association of El Dorado, Arkansas, was void; and, second, whether a secret contemporaneous agreement for the Union Savings Building & Loan Association to pay W. F. Matthews $11,000 out of the assets it should receive from the El Dorado Building & Loan Association for.consummating the main contract was void. The contracts were entered into on the 15th day of March, 1932. The main contract, in effect, provided for all the assets of the El Dorado Building & Loan Association, except $125,000 worth of real estate, to be turned over to the Union Savings Building & Loan Association, said real estate being reserved for division pro rata between .the stockholders of the guaranty stock upon surrender of their stock for cancellation. The total amount of its guaranty stock was $100,000. The consideration of the-main contract was that the Union Savings Building & Loan Association should carry out and perform all the contracts of the several investment stockholders of the El Dorado Building & Loan Association, such as receiving the dues, paying the dividends thereon, etc. The total amount of investment stock was $316,839.70. No indemnity or security was given by the Union Savings Building & Loan Association for the faithful performance of the contract on its part. Pursuant to the agreement, all the. assets of the El Dorado Building & Loan Association were transferred and conveyed to the Union Savings Building & Loan Association, except the real estate reserved and divided pro rata among the guaranty stockholders of the. El Dorado Building & Loan Association, and $11,000 in money and real estate was turned over to W. F. Matthews out of the assets of the El Dorado Building & Loan Association for negotiating and consummating the deal; whereupon, on December 31, 1932, the El Dorado Building & Loan Association filed its certificate for dissolution. The Union Savings Building & Loan Association collected the monthly dues on the installment investment stock and paid dividends for a short time on the fully paid investment stock that it had obligated itself to pay under the contract, and that it ceased to pay after March 1,1933, at which time it went into liquidation. The investment stockholders were not convened to approve the contract, and same was not ratified by the. consent of the shareholders holding a majority of the shares in each of the respective contracting associations. The contract was approved by the directors and guaranty stockholders but no others. The negotiations on the part of the Union Savings Building & Loan Association in making and executing* the. contract were conducted by G-. Bussell Brown with W. F. Matthews representing the El Dorado Building & Loan Association, and the agreement relative to the commission is as follows:
“As a side agreement and inducement to W. F. Matthews, secretary of the El Dorado Building & Loan Association, I have agreed that we shall pay to him, for his services in connection with the transfer of these assets, the difference between a hundred and twenty-seven and a hundred and thirty-eight thousand dollars, which is to be paid as follows: Forty-six hundred dollars cash and sixty-four hundred dollars in real estate which is owned by the company. ’ ’
The above memorandum was marked “confidential” and was handed by Brown to the president of the Union Savings Building & Loan Association. When the Union Savings Building & Loan Association went into liquidation, certain investment stockholders for themselves and others similarly situated brought this suit in the second division of the chancery court of Union County to set aside the main and contemporaneous contracts on the ground that they were contrary to law and void. The allegations of the complaint were controverted, and, upon a hearing of the cause, the trial court rendered the following decree:
“The. contract in suit was void ab initio; that it was never ratified, and that the' plea of estoppel is not well founded; that plaintiffs (and the other stockholders similarly situated) recover the property conveyed to W. E. Matthews, and recover judgment against him for the amount of cash paid to him in connection with the transaction between the two associations; that all the property reserved to the guaranty stockholders be recovered of and from them, and that all conveyances affecting any of the property conveyed by the El Dorado Association be canceled; that the Union Savings Building & Loan Association, and all other parties fully account for all properties received by them from the assets of the El Dorado Building & Loan Association.”
. ■ An appeal has been ’duly prosecuted to this court from said decree.
The absorption of the assets of the El Dorado Building & Loan Association by the Union Savings Building & Loan Association was attempted under act 128 of the Acts of 1929. Section 6 of that act prohibits the withdrawing of guaranty capital stock until final liquidation of an association, and requires that the funds derived from the sale of such shares shall be set aside, and be a permanent and fixed guaranty to all other shareholders and certificate holders that the association will fulfill its agreement with them as per terms of the contract issued to them. The contract in question provided for the withdrawal of certain real estate to liquidate the guaranty stock, and was withdrawn and divided between the hold ers thereof contrary to the provisions of the act. The contract also violated § 22 of act 128 of the Acts of 1929, which required the consent of the shareholders holding a majority of the shares in each of the contracting associations in case of a merger. Appellants insist that § 22 had reference to shareholders who had a right to vote under the by-laws of the associations, and have called our attention to the by-law of the El Dorado Building & Loan Association allowing guaranty shareholders only to vote. The act does not so state, but, on the contrary, provides that, before there can be a merger of two associations, the consent of the shareholders holding a majority of the shares in each of the contracting associations must be obtained. The character of- contract entered into was prohibited by act 128 of the Acts of 1929 and was void ab initio and was incapable of ratification.
W. F. Matthews was acting in a fiduciary capacity, and had no right 'to appropriate assets belonging to his employer as a commission for negotiating and executing a contract prohibited by law, and especially when this commission was paid him secretly and without the knowledge of the guaranty stockholders, as shown by the record in this case.
No error appearing, the decree is in all things affirmed. | [
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Mehaffy, J.
Appellant was indicted by tbe grand jury of Sebastian County for tbe crime of murder in tbe first degree, for tbe killing of Elmer Best. Upon a trial of the case in tbe circuit court, he was found guilty of murder in tbe second degree, and bis punishment fixed at 12 years in tbe penitentiary. To reverse tbis judgment of conviction, tbis appeal is prosecuted.
The evidence is in conflict, but there is no contention that tbe evidence was not sufficient to justify tbe jury in returning a verdict of guilty. It would therefore serve no useful purpose to set out the evidence as to tbe manner of tbe killing. Tbe killing was admitted.
Tbe appellant contends for a reversal of the judgment, first, because be alleges that the court erred in giving instruction No. 8, given at the request of tbe State. Instruction No. 8 reads as follows:
“If you find from tbe evidence in tbis case, beyond a reasonable doubt, that at any time from tbe beginning of a difficulty between tbe defendant and deceased on tbe square at Greenwood in which tbe deceased was shot and killed by tbe defendant, if you find there was such a difficulty, that tbe defendant could have reasonably withdrawn from or avoided tbe difficulty with safety to himself, but failed to do so, be could not justify the killing on tbe ground of self-defense. ’ ’
It is urged by appellant that there was no testimony introduced to show that the defendant was tbe aggressor in tbe difficulty in which deceased was killed. To support his contention be cites several cases, but we do not think these cases are in point.
An instruction similar to instruction No. 8 was given in the case of Crews v. State, 179 Ark. 94, 14 S. W. (2d) 261. Tbe court in that case gave the following instruc tion: “You are instructed that, although you may believe that the defendant, Jim Crews, fired the first shot in necessary self-defense, still, if you believe that the second shot was fired at a time when the defendant, as a reasonably prudent person, acting on the facts and cirT eumstances, wdthout fault or carelessness on his part, did not honestly believe that it was reasonably necessary to further defend himself, then the defendant would he guilty of murder in the first degree, or murder in the second degree, or manslaughter, provided you believe that the second shot contributed in any manner to the death of the deceased.”
In other words, no matter who the aggressor may be, if the time comes in the difficulty when the slayer could reasonably withdraw, with safety to himself, he cannot thereafter kill his antagonist and claim self-defense. Every one has a right to repel force with force, but he does not have the right to. use more force than is necessary. Therefore the court correctly told the jury that, if the defendant could have reasonably withdrawn from or avoided the difficulty with safety to himself, but failed to do so, he could not justify the killing on the ground of self-defense.
In one of the oases cited and relied on by appellant, the court said: “He was not bound to retreat if deceased first assaulted him, with an intent to murder, but might have stood his ground, and, if need be, killed his assailant. ’ ’ LaRue v. State, 64 Ark. 144, 41 S. W. 53.
You will observe that the court stated he could kill his assailant if need be, if it were necessary in his self-defense. But, no matter who the aggressor is, one cannot justify a killing if he could have reasonably withdrawn with safety to himself. One assaulted is not required to retreat unless he can do so with safety to himself, but, if he can withdraw with safety, and refuses to do so, but kills his antagonist, he cannot justify the killing on the ground of self-defense.
Appellant next contends that the court erred in permitting the State to prove the general reputation of appellant three or four years prior to the difficulty. This court has said: “For the purpose of testing the credibility of appellant, who testified in the case, the prosecuting attorney had a right to cross-examine him concerning his past conduct and immoralities.” Curtis v. State, 188 Ark. 36, 64 S. W. (2d) 86.
This court said: “Appellant was asked all sorts of questions about having been a gambler and about other offenses and immoralities. This was merely for the purpose of testing his credibility and was admissible as such. This court so decided in the case of Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41. This was with regard to a witness other than the accused himself, but we have since then frequently held that the same rule applies to a defendant in a criminal prosecution when he takes the witness stand in his own behalf. ’ ’ Shinn v. State, 150 Ark. 215, 234 S. W. 636.
It is next contended that the court erred in not setting aside the verdict of the jury because of misconduct of the jurymen. The appellant contends that some of the jurors at different times left the jury room and went to the toilet or rest room, and that some citizen was in the rest room at the same time.
Section 3187 of Crawford & Moses’ Digest provides: “The jurors, before the case is submitted to them, may, in the discretion of the court, be permitted to separate, or be kept together in the charge of proper officials.”
Section 3190 of Crawford & Moses’ Digest provides: “After the cause is submitted to the jury they must be kept together in the charge of the sheriff, in the room provided for them, except during their meals and periods for sleep, unless they be permitted to separate by order of the court.”
The record is silent as to whether the court made any order, but we said in a recent case: “Where the court permits the jurors to separate, or where there has been no order keeping them together, the burden rests upon the complaining party to show that prejudice resulted. There is no evidence in the record tending to show that anything was done by the juror or any one else while he was absent from his fellow jurors that resulted in any prejudice to the appellant.” Wallace v. State, 180 Ark. 627, 22 S. W. (2d) 395.
There is nothing in the record in the instant case tending to show that any prejudice resulted or that anything wrong was done by any of the jurors.
The appellant does not abstract the instructions, but we have carefully examined them, and find no error either in giving or refusing to give the instructions. We find no error in the record, and the judgment of the circuit court is affirmed. | [
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Baker, J.
Citizens and taxpayers of Miller County filed their petition with the county clerk in that county to initiate a salary act for county officers. This salary act was filed in thirty-eight parts on September 4, 1934, and there was noted on the petitions a filing mark of the county'- judge of the same date it was filed with the county clerk.
On September 9 the clerk decided the sufficiency of the petitions and approved them, and on September 10 an order was made by the county court, directing the county clerk to give notice, over the signature of „the county judge and county clerk, by publication and directing the clerk to certify the submission of the proposed act to the county board of election commissioners of Miller County, Arkansas, with directions to submit to the electors of Miller County the said “initiative act No. 1 of Miller County, Arkansas. An act to fix the salaries and expenses of county officers and to fix the manner in which such compensations and salaries shall be paid and to reduce the costs of county government, and for other purposes.
“For initiative act No. 1 of Miller County, Arkansas,
“Against initiative act No. 1 of Miller County, Arkansas. ’ ’
The notice of publication was signed by Sewell as county judge and Ben Wilson as county clerk.
This suit filed in the Miller Chancery Court was instituted by certain citizens and taxpayers against Sew-ell, as county judge, and Wilson, as county clerk, and against the election commissioners of the county and tbeir successors, challenging- the sufficiency, legality and constitutionality of the salary act proposed to be submitted at the general election on November 6. The several objections urged in the complaint will appear, sufficiently in detail, in the opinion covering propositions urged in the brief.
A restraining order was prayed to prevent the certification and placing of the proposed act upon the ballot to be voted upon at the general election.
Certain other citizens and taxpayers intervened, made themselves parties, demurred specifically to each paragraph in the complaint and at the same time filed an answer. The answer denied all of the allegations of the complaint.
Ben Wilson, county clerk, was sworn and testified substantially to the facts as set forth in this statement, introducing a copy of the petition containing the affidavits of the parties circulating them and showing the respective filing marks of himself and the county judge and also the order of the county judge, the effect of which has been stated, and also the certificate of the clerk, upon his examination of the petitions, which certificate was dated the 10th day of September, and filed •with the petitions.. This certificate was to the effect that the petition bears the signature of 1,031 persons, shown by affidavit attached, to be legal and qualified voters and electors of Miller County, and further that in the last preceding general election in Miller County, Arkansas, the total vote cast for the circuit clerk of Miller County, Arkansas, was 663. His finding was that more than 1,031 legal voters had signed the initiative petitions, and that the petitions were sufficient to order said proposed act to be submitted to the people for adoption at the general election to be held in Miller County.
The first proposition argued in appellant’s brief is that there was no ballot title. The matter of a ballot title and the sufficiency thereof was decided by us in the case of Coleman v. Sherrill, ante p. 843. In that opinion we held that the title of the proposed act, as set forth in the petition, was a ballot title and that it was sufficient. The title of the proposed act in this case is essentially of the same form and effect, and it can not be helpful to render another opinion. The title of the proposed act is the ballot title, and is sufficient.
The next matter suggested is to the effect that there is no sufficient affidavit of the parties who circulated the petition. There were thirty-eight- separate parts of the petition filed, and, as we understand the record in this case, there was an affidavit attached to each of the thirty-eight parts thereof. Amendment No. 7 provides that each part of the petition shall have attached thereto the affidavit of the- persons circulating the same and to the effect that all signatures thereon were made in the presence of the affiant and that to the best of affiant’s knowledge and belief each signature is genuine and that the person signing is a legal voter. One affidavit to each of the parts is all Amendment No. 7 calls for, and there is no. requirement that each page of the- said petition shall have attached to it a separate affidavit, though, of course, if a part consisted of only one page, as circulated by one solicitor, then the person circulating the petition would make the affidavit as required. A part, however, may consist of many pages circulated by one person.
It is also objected in regard to the affidavit that it contains no expression of “belief that each signature is genuine.” The affiant did swear that each of the parties making the affidavits signed the petition, and each of the other petitioners signed his or her name- thereunto in his presence, and also the belief that each stated his or her name, residence, post office-, and voting precinct correctly, and that each of them is a legal voter in Miller County, Arkansas. This is not the exact language of that part of Amendment No. 7 under the head of “verification,” but this affidavit contains words of equal import or meaning. The affiant savs that they signed in his presence. His 'belief is that each has stated his or her name, residence, post office and voting precinct correctly and that each was a legal voter. If this affidavit means anything, it meets the objection made and the effect is that the signatures are genuine.
There is no such sanctity iu words that we feel impelled to enforce their use when substantially the same thing is otherwise stated. This court has watched with jealous care the enforcement of the. law of acknowledgments, but, in requiring always a substantial compliance with the statutes, has permitted the use of “signed said deed” for “executed the deed”; “freely and of her own consent and not by persuasion or compulsion by her husband” for “without compulsion or midue influence of her husband.” Little v. Dodge, 32 Ark. 454.
Chief Justice Hart, in Fidelity & Deposit Co. of Maryland v. Rieff, 181 Ark. 798, 803, 27 S. W. (2d) 1008, said: “As we have already seen, all that has ever been required with reference to the ordinary acknowledgment of a deed or mortgage is a substantial compliance with the statute.”
We said, in the case of Coleman v. Sherrill, ante p. 843, that Amendment No. 7, in order to effectuate the purposes intended, would be liberally construed. It must be seen that in the strict enforcement of statutes, mandatory in effect, substantial compliance only is meant, so that we hold a substantial compliance here must be sufficient. We have no desire to make a fetish of the word ‘ ‘ genuine. ’ ’
The next contention is that the petitions were not filed in time, and it is argued that under act 356 of 1927, page 1159, the petition shall be filed with the county judge, at least sixty days before the election at which it was to be submitted. Whether necessary or not, that was done. The petition was filed first with the county clerk, as provided in Amendment No. 7 and on the same day it bears the file marks of the county judge. The filing with the county clerk was on ¡September 4. This was certainty more than 60 days prior to the date of the election. The amendment provides that' the sufficiency of all such local petitions shall be decided, in the first instance, by the county clerk, and that matters of county initiative acts are subject to review by the chancery court. The county clerk acted upon the petition, approved it, held it sufficient, and, since Amendment No. 7 is self-executing, it could have been then placed upon the ballot without the aid of act 356 of 1927.
We are perfectly well aware of the fact that, act 356, above mentioned, provides that the petition shall be filed with the county .judge, and § 2 of that act provides that 'the county judge shall submit all such petitions to election commissions. Whatever force and effect the act may have as distinguished from the provisions of Amendment No. 7, the county judge, in addition to what the clerk did, acted upon the petitions, directing them to be submitted to the election commissioners, but it.is not necessary at this time that we decide anything with reference to act 356.
The proposed initiative act is criticized, and it is alleged that in its operation it will result in a diversion of taxes, contrary to constitutional provisions. That may or may not be true, but that question is not before us at this time for several reasons. The first is that the proposed act may not be adopted by Miller County. If it should be adopted and objections then be raised, and a case be presented upon the proposition as to a wrongful diversion of funds, that question will then be determined.
The only other proposition remaining is the fact that the petition for the proposed act asked that the act be submitted at the next general election to be held on November 5, 1934. Amendment No. 7 provides, of course, that measures to be initiated shall be submitted only at the general election. There is no election to be held on November 5, 1934. When the petitioners prayed for the submission of the act at the general election, they fixed the date, just as definitely as the date for the holding of the election is fixed by law. A mere, clerical error will not be allowed to defeat the measure when no prejudice could have possibly resulted.
We find no error in the- order and decree of the chancery pourt. The case is affirmed. | [
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Baker, J.,
(on rehearing). Upon the rehearing in this cause, we hold that the original opinion is erroneous, and that this opinion should be substituted for the one rendered on June 18, 1934.
There was passed at the 1933 session of the General Assembly (Acts 1933, p. 203) act 72, entitled, “An Act to Create a Fact-Finding Tribunal in the Corporation Commission.” This tribunal was given the power, and it was made its duty, to investigate and make a finding of all facts entering into or forming the basis of rates to be charged for any service supplied by any public utility “furnishing gas, water,.light, heat or power; producing, generating, transmitting or distributing gas, water, light, heat or power; or furnishing telephone, telegraph or street railway service. ’ ’
To raise funds to defray the expenses, of this tribunal, it was provided in § 8 of the act that each public utility subject to the provisions of the act shall file with the tribunal “a sworn statement showing its gross earnings from property in this State for the preceding calendar year, and at the same time shall remit to the State Treasurer the sum of $2 for each $1,000 of such gross earnings as a fee for the fact-finding facilities afforded by this act, which fee shall be in addition to all property, franchise, license or other taxes, fees or charges now or hereafter prescribed by law. * # * The tribunal is hereby authorized to inspect the income tax return of any public utility for the purpose of checking up its gross earnings. ’ ’
The Fort Smith Gas Company is engaged in the distribution of natural gas in the city of Fort Smith. The gas which it distributes is purchased from various pipe line companies. As required by the act from which we have quoted, the Fort Smith Gas Company made report of its gross earnings for the year 1932, from which it appeared that gas which had been furnished by the pipe line companies to the Fort Smith Gas. Company at a cost of $214,769.01 had been distributed to the consumers for the price of $407,588.83. The Fort Smith Gas Company reported its gross earnings, to be the difference between what it had paid for the gas and the price received for it, and made a tender of the tax imposed by § 8 of the act on that basis. The tender was declined by the Commissioner of Revenues, who insists that the tax should be paid on the whole amount for which the gas was sold, and not on the difference between the purchase and the sale price. The court below sustained that contention, and entered a .judgment accordingly, from which is this appeal.
The question presented here for our determination and decision is whether the term “gross earnings,” as used in act 72, was intended by the Legislature to be synonymous with “gross receipts.” In attempting to decide what the Legislature meant by £ £ gross earnings, ’ ’ as the same appears in § 8 of said act, we think recourse should be had to the act itself, and with whatever authority we may be able to find, to aid in a determination of the legislative intent.
Act 72, appearing on page 203 of the Acts of Arkansas of 1933, is a regulatory statute, whereby the fact finding tribunal, organized as a bureau of the corporation commission, is empowered, by the act, to make investigations under the prescribed methods and procedure as set forth in said act, to determine and fix a basis upon which rates may be charged by utility companies doing business in the State. This investigation, for purposes of regulation, as will appear from § 2 of the act, is such that a person, firm, association, corporation, trustee, receiver or lessee, furnishing gas, water, light, heat, power; producing, generating, transmitting, or distributing any of the said products, or furnishing telephone, telegraph, or street railway service, may be made the subject of such investigation for the purpose of finding facts necessary to determine rates that may be charged. It will be observed in reading § 2 that the Legislature had in mind that one selling or distributing any of the products mentioned was supplying a service in the same sense that a service is supplied by telephone, telegraph, or street railway. Whether the utility sells commodities or transportation, the utility is treated as supplying services” to the public. It was certainly not the purpose of the Legislature to discriminate as between one generating electricity or producing gas from its own wells or plants, and one who also renders a service by selling transportation on the street car system, or provides means for communication by telephone and telegraph. The rates to be charged for the rendition of this service, whether in the distribution of a commodity or in the production and sale of it, and the service rendered by a street railway company, or a telephone or telegraph company, come under the same regulatory power of the Fact Finding Tribunal.
The purpose of the Fact Finding Tribunal, the power or authority granted to it, the method of procedure provided, demonstrate that its function is purely regulatory, and that it is brought into being in the exercise of the police power of the State.
In order that it might become operative or effectual, it was necessary that money, or funds be raised, with which to pay expenses, including salaries, and this is provided for under § 8 of the act, and it is in this section that the term “gross earnings” is used.
Section 8 provides that: “Each public utility subject to the provisions of this act shall file with the tribunal a sworn statement showing its gross earnings from property in this State for the preceding* calendar year, and at the same time shall remit to the State Treasurer the sum of $2 for each $1,000 of such gross earnings as a fee for the fact-finding facilities provided by this act, which fee shall be in addition to all property, franchise, license or other taxes, fees or charges now or hereafter prescribed by law.”
It will be observed that the word “fee” is used instead of “tax,” and we think that word is used in the sense that it is a “charge fixed by law for services of public officers or for the use of a privilege under the control of the Government. ’ ’ The charge made is of the same kind and class as that usually made, as authorized by statute, in municipalities for license fees, which are assessed or fixed by city councils, not as revenue charges, but in order that the regulations, inspections, etc., may be had without expense to the municipality. The law in such matters is too well known and recognized to require citation of authorities.
The principal case relied upon by learned counsel for appellant is District of Columbia v. Georgetown Gaslight Co., 45 Appeals, District of Columbia, 63. We think that this case is not applicable and furnishes us no aid in the determination of the question involved here.
This District of Columbia case arose under an act of Congress of July 1,1902, and the act itself shows that the words, “gross receipts” and “gross earnings” were not intended to be used as meaning the same thing. We agree with learned counsel that it is a well-reasoned case, but that court also recognized the fact that the terms “gross receipts” and “gross earnings” are very frequently regarded as equivalents.
A careful reading of the above case will disclose the fact that the act under consideration was a tax for revenue upon the “gross earnings,” and not a fee for regulation. Each national bank was required to pay 6 per cent.; each gas company 5 per cent.; each electric lighting and telephone company 4 per cent. It provided also that street railway companies should continue to pay 4 per cent, per annum on “gross receipts,” and insurance companies 1 y2 per cent, from premium receipts. The court followed the principle that our court has also approved — that an act imposing a special tax should be construed strictly against the State, and in favor of the taxpayer, and to the effect that the gas company was permitted to take from its “gross earnings” the amount expended or invested by it in the purchase of raw materials in the production of its commodity, in order to arrive at the basis for the tax. If we follow the same principle, as announced in the District of Columbia case, and treat the act as one of taxation, for the mere purpose of producing revenue, and not a fee, which the act calls the charge, then necessarily the authorities are ample to support the contention that earnings cannot be determined except by taking from the gross income, or “gross receipts,” all of the expenses of the production of said commodity, and necessarily this would include whatever investments of capital were made in raw material, incidental to the production of the commodity from which the gross income was derived.
It is true that this court has held that a law imposing a special tax is to be construed strictly against the Government and favorably to the taxpayer. McDaniel v. Byrkett, 120 Ark. 295, 179 S. W. 471.
While we recognize the justice of that argument and would not impair the effect of the decision in the last cited case, we cannot concede that it is authority to defeat what we believe to be the legislative intent in the case under consideration.
Counsel for appellant in this case agree that the Fort Smith Gas Company should pay on the amount remaining, after deducting the cost of the gas purchased by it, and without any deduction of any cost of operation, or any return on its investments, or any tax or other charge of any kind. This is a fair concession in order to present its real contention to this court, but, if the District of Columbia case is authority, and if it should be followed by this court, it is also authority for deductions that should be made for cost of operation, etc.
But this question as to cost of operation, as we think, is conceded by all the parties, is settled in the case of Railway Co. v. Shinn, 52 Ark. 93, 12 S. W. 183. Quoting Chief Justice Cockrill, the statement of the case is as follows:
“The company is known as the Dardanelle & Russellville Railway Company, and sells tickets to passengers and issues bills of lading for freight from the town of Dardanelle to Russellville and from Russellville to Dardanelle. It maintains .a passenger ticket office, and a warehouse for the receipt of freights in the latter town. To facilitate the transaction of its freight and passenger business, it entered into a written agreement with Shinn, by the terms of which the latter agreed (to quote from the contract) ‘to ferry all passengers, freight, baggage, mail, express matter, live stock and other kinds of freight, presented for ferriage by the party of the second part (the company) in the course of transportation by it, together with such conveyances, as may be necessary to convey and transfer the same with dispatch and safety across the Arkansas River. * * * For and in consideration of which ferriage, and the services in regard thereto, the party of the second part hereby agrees to pay to the party of the first part (Shinn) one-fifth of the actual gross earnings of the railway, the party of the second part, on all passengers, freight, mail, express or other matter of every kind and nature whatsoever, carried across the said river either way.’
“Under the agreement the company transported its freights from the terminus of its track, across the ferry to its destination in Dardanelle, and from Dardanelle to the railway at its own cost, and accounted to Shinn for one-fifth of the gross amounts earned thereby, and for the same proportion of the gross receipts for mail and express matter. It let the contract to haul its passengers, to a transfer company; which ostensibly charged twenty-five cents for transporting each passenger to or from the terminus of the track and points in the town of Dardanelle. The passenger vehicles were carried over the ferry without charge by 'Shinn under the impression that they were acting for the railway company, as a continuation of its line. The railway company sold the hack tickets, and out of the proceeds paid the transfer company twenty cents for their services, and retained five cents as a commission for selling such tickets, and as pay for the transfer company’s ferriage for their hacks. The fare of the railway proper, between Dardanelle and Russellville, was fifty cents, which sum added to the hack fare made seventy-five cents for a complete ride between the two towns. Passengers were not required to purchase the hack tickets, and the railway fare entitled them to free ferriage without transportation from the terminus of the track to the ferry. The railway company accounted to Shinn for one-fifth of the amount collected by them as railway fare, that is, ten cents on each passenger and one-fifth of the five cents retained by them on the sale of each hack ticket. ’ ’
“'Shinn contended that he was entitled to five cents for each hack ticket sold, as being a part of the gross earnings contemplated by the contract. The railway company insisted that the transfer company was not a part of its system, and what it earned was a matter of no concern to Shinn. The latter instituted this suit to recover the difference between the amount he received and what he claimed. The cause was tried without a jury before the circuit judge, who heard testimony establishing the facts above detailed, and found therefrom that Shinn was entitled to recover. The only ground assigned for a new trial is that the finding is not sustained by the facts.”
In this case it is stated that the railroad company paid four-fifths of the expense for crossing the river and retained one-fiftli, and in its settlement with Shinn was willing* to pay him the one-fifth part of the five cents retained, claiming that the five cents was its “gross earnings,” because of the fact that it had paid twenty cents of the twenty-five-cent charge for transfer across the river. The controversy arose because of the fact that the railway company construed the term “gross earnings” to be the one-fifth part of the charg'e, five cents, which it retained, and Shinn contended that “gross earnings” meant the full amount received, or the twenty-five cents.
In the consideration of this case, it should be kept in mind that the railroad company had nothing to sell, except its service, transportation; that it actually received, as between it and Shinn, only the five cents, but from the passengers it received twenty-five cents, though it paid to the transfer company twenty cents of that amount. The railroad company bought a part of the transportation, part of the service it sold, the part that was in dispute, just as the. gas company in this case bought the gas that it resold to its consumers.
This court, in deciding that issue, held that the term “gross earnings” meant all that the railroad company had received, including this twenty-five-cent charge for each passenger transported. This case was decided at the May term of the Supreme Court in 1889, and, by its decision, gave to the term “gross earnings” the exact meaning contended for, of the same expression by the appellee in this suit. This particular case has never been overruled or modified, nor has the legal definition given 'by this court to the words “gross earnings” been changed in any particular.
Moreover, act 72 of Acts of 1933, shows the Legislature knew approximately what the work of regulation would cost. The fixing of the charges and appropriation determines, that fact, and we think we can correctly assume it had some information in regard to the amount of fee or charge to make or place, so that payment by the utilities for the functioning of this regulatory plan, to which they were to be subjected, would be just.
It is apparent the fee fixed was intended to rest ratably and equitably upon such utilities. We cannot believe it proposed to fix a charge on a street railway which sells service only upon a basis of the gross amount of money received, and upon a gas company upon a basis of the gross profits only.
A street railway system might conceivably be organized with a million dollars capital stock, and use it all in its equipment to render the service for which it charges. T,he gas company organized, for a like sum, could spend one-half or three-fourths of its capital in a distribution system, and employ the remainder of its capital in the purchase of gas for distribution, and the total intake or receipts of the two corporations be the same. The two have employed the same capital, but in a different manner. The Legislature certainly meant they should pay equally. If one received or took in but a third part of what the other got, it should pay ratably. This construction eliminates expenses of bookkeeping, the costs of tax experts, controversies as to proper charges and deductions.
The court is of the opinion that the term “gross earnings,” used in act 72 of the Acts of 1933, meant the entire receipts, without deduction for any expenditure, or any cost of operation, or other expense or cost of the service.
The act employs the expression, “gross earnings” as synonymous with “gross receipts,” as in the case of Railway v. Shinn, supra.
The rehearing should be granted, and the judgment of the circuit court should be affirmed.
It is so ordered.
Smith, MoHaney and Butler, JJ., dissent. | [
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Humphreys, J.
This is an appeal from a decree of foreclosure in favor of appellants of certain lands in Improvement District No. 513 of the city of Little Rock, Arkansas, on account of the failure to pay delinquent assessment of benefits to appellants. Appellants are appealing from the decree in their favor because the court refused to incorporate into the decree a penalty of 20 per cent., costs, a reasonable attorney’s fee, and, if payment were not made within ten days, the property should be sold on 20 days’ notice, and that, if the owner did not redeem from the sale within two years by the payment of the purchase price and 10 per cent, interest, the commissioner should deliver to the purchaser a deed, and that, immediately upon the delivery of the certificate of purchase after the sale should be confirmed, the purchasers should have possession pending redemption without accountability for rents. These requested provisions were in accordance with the statutes in force and effect at the time the district was organized in 1930, and at the time the bonds were issued and sold to construct the improvement. These remedial provisions of the statutes were amended or repealed by acts 278, 2'52 and 129 of the Acts of the Legislature of 1933 so as to provide a penalty of 3 per cent., no attorney’s fee, twelve months for payment, six months ’ notice of sale, redemption within four years by payment of the purchase price and 6 per cent, interest, and no right to possession without accountability for rents pending redemption.
In rendering the decree of foreclosure, the court followed the remedial provisions contained in acts 278, 252 and 129 of 1933, so the only question presented upon appeal and insisted upon by appellants for a reversal of the decree, is whether the later acts are in contravention of article 2, § 17, of the Constitution of Arkansas and article 1, § 10, of the Constitution of the United States, which forbid the passage of any law impairing the obligation of contracts, and of the Fourteenth Amendment to the Con stitution of the. United States, which forbids any State to deprive any person of his property without due process of law. An inspection of the acts of 1933' called in question will disclose that they are entirely remedial in their nature and do not attempt to take away any of the vested rights of appellants such as their lien and right to foreclose same, but simply reduce the penalty and extend the time required to foreclose in case of default and to redeem from a sale and are, in our judgment, reasonable changes to meet the exigencies of the depression and to give property owners a reasonable time and opportunity to save their homes. The constitutionality of act 278 of 1933 was attacked from every conceivable angle in the case of Sewer Improvement District No. 1 of Wynne v. Delinquent Lands, 188 Ark. 738, 68 S. W. (2d) 80, and this court upheld the act. In deciding that case the authorities were fully reviewed, and it is unnecessary to review them, again. Suffice it to say that the case referred to governs and controls the instant case. There is no difference between the three acts in tenor and effect; so the reasoning as to the validity of act 278 is applicable to acts 252 and 129.
No error appearing, the decree is affirmed. | [
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Mehaffy, J.
On March 30, 1933, W. W. Torrence and Sophronia Torrence presented their claim for $416 against the estate of Elizabeth Jordan, deceased, in due form to W. R. Benton, administrator, for allowance, and classification. The claim was disallowed by the administrator, and notice waived, and claim presented to the probate court for allowance and classification. There was a trial by a jury in the probate court, and a verdict and judgment in favor of claimants for the amount of said claim.
On May 4, 1933, the appellee filed with the clerk of the Dallas County Probate Court an affidavit and prayer for appeal. There is no evidence showing- that an appeal was ever allowed by the probate court.
On November 21, 1933, there was a trial before a jury in the Dallas County Circuit Court, and judgment rendered for appellee. It is the contention of the appellants that this judgment is void, because the circuit court never acquired jurisdiction of the case. The only question therefore for our determination is whether the circuit court had jurisdiction.
The appellant cites § 2258 of Crawford & Moses’ Digest, which provides, among- other things, that the probate court shall order an appeal.
Attention is called to the case of Matthews v. Lane, 65 Ark. 419, 46 S. W. 946. In that case there was a motion filed to dismiss the appeal, and the court held that no appeal had been granted, and the appeal was thereupon dismissed. It appears from the above, case that no appeal was granted, and the court correctly held that it should be dismissed.
This court has repeatedly held that, in order to give the circuit court jurisdiction, the probate court must grant the appeal.
In the case of Speed v. Fry, 95 Ark. 148, 128 S. W. 854, the court held that the granting of the appeal by the probate court was a prerequisite to the right of the court to exercise jurisdiction. In that case the claim was for $95.25. This amount was not sufficient to give the circuit court original jurisdiction.
In all matters of contract, the justice of the peace court has jurisdiction exclusive of the circuit court, where the amount in controversy does not exceed $100. In matters of contract where the claim is less than $100, the circuit court has no jurisdiction.
In the case of Miller v. Oil City Iron Works, 184 Ark. 900, 45 S. W. (2d) 36, the probate court had granted the appeal, but it was contended that it had not been granted within the time allowed by law. Moreover, there was a motion made, to dismiss the appeal because not taken in time, and this court said: “The record does not show whether or not any evidence was introduced on the motion in the circuit court; and, in the absence of such showing from which this court might determine whether or not the circuit court abused its discretion in overruling the motion to dismiss, every presumption that it was correct must he indulged.”
The question we have now was not involved in that case, because there the court granted the appeal.
If the case is such that the probate court has exclusive original jurisdiction, and the circuit court does not have original jurisdiction, then, under the decisions of this court, the appeal must be granted by the probate court, or the circuit court will acquire no jurisdiction. On the other hand, if the circuit court has original jurisdiction of the subject-matter, and the parties appeal and do not object to jurisdiction, they will be bound by the judgment rendered by the circuit court.
In this case the claim was for $416, and the circuit court had jurisdiction of the subject-matter. The. parties appeared, tried the case, no objection was made to the jurisdiction of the court, and the judgment rendered was binding on the parties.
.There, is no question but what the circuit court had jurisdiction of the subject-matter. It is true that our statute says that a suit is begun by filing a complaint, and causing a summons to be issued. While a suit is begun in this manner, it does not follow that the case may be tried, because the summons might never be served, and the court might not acquire jurisdiction of the person.
We recently said: “A defendant appearing specially to object to the jurisdiction of the court must, as a general rule, keep out of the court for all other purposes. In other words, he must limit his appearance to that particular question, or he will be held to have appeared generally and to have waived his objection. If he takes any step consistent with the hypothesis that the court has jurisdiction of the cause and the person, such special appearance is converted into a general one, whether it is limited in its terms to a special purpose or not.” Fed eral Land Bank of St. Louis v. Gladish, 176 Ark. 267, 2 S. W. (2d) 696.
The. court also said in the above case: “But one cannot come into court, assert a claim, ask the court for affirmative relief, and then, when there is an adverse judgment, claim that the court had no jurisdiction over his person. If this could be done, the appellant would have the opportunity and advantage of prosecuting its claim and, in cáse it recovered judgment, it could collect, and at the same time take no chances of a judgment against itself.”
What we have said applies in cases where the circuit court has original jurisdiction of the cause of action. If the circuit court’s jurisdiction depended on the jurisdiction of the lower court, then no jurisdiction would be acquired by the circuit court unless the appeal was allowed by the probate court.
The Ohio court said, in a case appealed from the probate court: “It does not appear that any objection was made because of any lack of jurisdiction in the circuit court to hear and determine the issue, nor was there any objection respecting the way in which the controversy reached that court. Indeed, it seems to be conceded that the circuit court is a court of general jurisdiction, thus possessed of power to pass upon its own jurisdiction, having also chancery powers; and such we understand to be the fact. The parties, therefore, were then in a court which, according to the theory of plaintiffs in error, was such a court as should have been resorted to in the first instance. In that court the parties joined issue, and the cause went forward to final judgment. How can the parties who then entered their appearance at the trial and submitted their controversy be heard now to dispute the jurisdiction of that court? We think they cannot. That the cause got into that court by appeal from a court which had not jurisdiction of it (if that be the case), rather than by original pleadings and process, was, after all, but an irregularity, not affecting any substantial right, and one which was waived.” In re Crawford, 68 Ohio St. 58, 67 N. E. 156, 96 Am. St. Rep. 648.
“Within its limitations respecting subject-matter, a Federal court is a court of general jurisdiction. If organic power to hear the controversy exists, it is immaterial when or how the parties get into court; it is enough if they do come in and waive all preliminaries to the submission of their controversy. And so we deem in point those authorities from State courts which hold that, although the trial court acquired no jurisdiction by the removal of the case on appeal from an inferior court, yet, the trial court having jurisdiction of the subject-matter, the judgment would be sustained because the parties had voluntarily joined in submitting their controversies for decision.” Toledo, St. L. & W. R. Co. v. Perenchio, 205 Fed. 472.
“Where a cause of action is within the general jurisdiction of a court, the voluntary appearance of the parties and submission of the cause on its merits confers jurisdiction to try the issues presented. ’ ’ Rio Vista Mining Co. v. Superior Court of Plumas County, 187 Colo. 1, 200 Pac. 616.
“It is also a well-established rule that, in cases appealed from an inferior court to a superior court having appellate jurisdiction only, the appellate court acquires such jurisdiction as the inferior court had. * * * In cases of this kind the weight of authority holds that where parties on appeal to a court having original jurisdiction of the subject-matter of the action have, without objection, as in the ease at bar, submitted their controversy to the court for trial and adjudication, and the cause proceeds to trial and final judgment, they will be held to have waived their right to object to the jurisdiction of the court to which the appeal is taken. ’ ’ Burt & Carlquist Co. v. Marks, 53 Utah 77, 177 Pac. 224.
It appears that the weight of authority is to the effect that where the circuit court has original jurisdiction of the subject-matter, and the parties appear and try their cases without objection, it is immaterial how the court acquired jurisdiction. Purnell v. Nichol, 173 Ark. 496, 292 S. W. 686.
The judgment of the circuit court is affirmed. | [
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Smith, J.
It was adjudged in the decree from which this appeal comes that the tax sales of a certain lot in the city of Blytheville were void. One of these sales was had on June 2, 1930, for the nonpayment of a sewer district tax, and the second sale of the lot was had on June 17, 1930, for the nonpayment of a paving district tax.
At the time the suit was brought which questioned the validity of these sales a tender was made of a sum of money sufficient to redeem the lot from both said sales if redemptions were permissible. The decree recites that this money had been deposited in the registry of the court in an effort to redeem said lot, and the clerk was ordered to pay the money in his hands over to the plaintiff, who had purchased the lot from each of the improvement districts. The lot had, at each sale, been sold to the improvement district in whose behalf the sale was made, for the lack of other bidders.
It is unnecessary to determine whether the sales were valid or were void, as the right to redeem from the sales had not expired at the time the redemption tenders were made; indeed, the right of redemption has not yet expired. There was passed at the 1915 session of the General Assembly act No. 43 (Acts 1915, page 123), entitled, “An act to regulate sales by commissioners in chancery for special assessments and redemptions therefrom.” It is provided in the portion of this act which appears as § 5644, Crawford & Moses’ Digest, that the owner of property sold for the nonpayment of betterment assessments ‘ ‘ shall have the right to redeem from said sale at any time within five (5) years” by payment to the clerk as commissioner of the sum of money then required to effect a redemption. The decree here appealed from recites, as has been stated, that there was a tender and a deposit of the required amount, of money.
It was held in the recent case of W. B. Worthen Company v. Delinquent Lands, ante p. 723, that this statute, in so far as it applied to municipal improvement districts, had not been repealed by subsequent legislation, but was still in full force and effect as applied to municipal improvement districts.
As the effect of the decree is to accord this right of redemption, it must be affirmed, and it is so ordered.
McHaney and Baicer, JJ., dissent. | [
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Johnson, C. J.
This proceeding is a continuation of the case of Shepard v. McDonald, 188 Ark. 124, wherein we said: “It has been specifically agreed between counsel for petitioner and respondent that the question of the sufficiency of the ballot title in the instant case be reserved for decision until the jurisdictional questions have been determined. Therefore we do not here decide or discuss the sufficiency of the ballot title, etc. ’ ’
The question thus expressly reserved for future determination is here presented, and we now proceed to its determination.
The ballot title submitted with the referendum petition is as follows:
“The purpose of this act is to abolish the State Board of Education elected by the people; to create a new State Board of Education appointed by the Governor; to create the office of State Superintendent of Public Instruction; and to repeal certain sections of the ‘school law’ which fix a regular time of meeting for the State Board of Education and requires said board to serve without remuneration.”
In Westbrook v. McDonald, 184 Ark. 740, 44 S. W. (2d) 231, in reference to the sufficiency of a ballot title submitted with a petition to refer, we stated the rule as follows: “The ballot title should be complete enough to convey an intelligible idea of the scope and import of the proposed law, and it ought to be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and it must contain no partisan coloring. ’ ’
The rule thus stated is broad enough to be all inclusive and flexible enough to afford ample relief in all meritorious cases, therefore we reaffirm it without citing or discussing authorities from other jurisdictions,
The only question here presented is, does the ballot title under consideration fall within or without the rule stated?
The first phrase of the submitted ballot title contains the following: “elected by the people.” The only purpose for the use- of these words was to lend partisan color to the position assumed by. the petitioners. It was and is wholly immaterial whether or not the abolished board was elective or appointive. The Legislature has plenary power to create and abolish such boards and commissions.
The second phrase of the submitted title is likewise partisan and colored. The undue emphasis placed upon “appointed by the Governor” does not add to or detract from the merits or demerits of the act.
Not only is this phrase colored and partisan, but it is misleading and contains a half truth only. The act provides that the new State [Board of Education shall be appointed by the Governor with the advice and consent of the Senate. Thus it appears that the elective Senate of the State is a part and parcel of the appointive power, but this is skillfully withheld by the proponents of the referendum petitions.
The third phrase of the submitted title is likewise partisan, colored and misleading. It provides, “to create the office of State Superintendent of Public Instruction.” This language is partisan and colored because it withholds from the voters the fact that the superintendent is to be elected by vote of the people, and this, in the face of the fact that undue emphasis has just been placed upon the facts that the “abolished board is elected by the people,” and that the new board is “appointed by the Governor.” If it were important to advise the voters that the old board was elected by the people, and that the new board would be appointed by the Governor, certainly it was equally important to advise the voters that the superintendent would be elected by the people.
The third phrase of the submitted title is misleading because it creates the impression that a new office, that of superintendent of public instruction, is being created. This office has been in existence for the past fifty years, although, for the past few years operating under the appellation of Commissioner of Education. The effect of the language employed in the act is to substitute the office of Superintendent of Public Instruction for that' of Commissioner of Education under existing law, and this should have been reflected in the title instead of the converse, as was done.
The fourth and last phrase of the submitted ballot title as follows: “And to repeal certain sections of ‘the school law’ which fix a regular time of meeting for the State Board of Education and requires said board to serve without remuneration” is likewise misleading, partisan and colored. It is misleading because the fact is the members of the abolished State Board of Education do receive actual expenses while attending meetings of the State Board of Education. It is partisan and colored because it is immaterial whether or not such members are compensated. The inference sought to be conveyed by the use of the language thus employed is that the new State Board of Education to be appointed by the Governor will receive compensation when such is not the fact. If the language thus employed in the title is of importance to the voters, it was of equal importance that they be directly advised that the new State Board of Education to be appointed by the Governor would likewise be required to serve without remuneration.
Thus it appears that each sentence and phrase of the proposed title is either misleading, colored or partisan, and that each and all falls squarely within the prohibition announced in the Westbrook case, cited supra.
It is argued that the language contained in the proposed title is true, therefore cannot be considered as misleading, colored or partisan. The willful withholding of a material fact is equally as reprehensible as the misstatement of a material fact. This was fully recognized in the Westbrook case just referred to. There we had under consideration a proposed ballot title as follows: “To permit the granting of decrees of divorces to applicants who have resided in the State for a period of only three months.” Each word, phrase and sentence of this proposed ballot title was literally true, yet we held it misleading because it did not directly advise the voters that it would be necessary for applicants for divorces to establish by evidence a legal cause for divorce in addition to the required three months’ residence. Thus it definitely appears that this contention was decided and determined adversely to respondent’s contention here.
Our conclusion is therefore, that the submitted ballot title in the instant case falls within the prohibition of the Westbrook case and is insufficient.
After the filing of this suit, one W. E. G-reene et al. were permitted to intervene upon the theory that they were offering as a part and parcel of the petition for referendum a supplemental and substituted ballot title. Prior to the submission of this cause, however, interveners requested permission to withdraw said intervention. We have concluded that interveners have the right to withdraw said intervention and substituted or supplemental ballot title. ■ Therefore this question passes out of the case.
It follows from what we have said that the respondent, McDonald, Secretary of State, should have denied the petition for referendum, because of the insufficiency of the ballot title submitted therewith, and his actions in submitting and referring same is quashed, and a peremptory writ of prohibition is awarded in behalf of petitioners.
Justices Smith, Mehaeey and McHaney dissent. | [
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Smith, J.
A complaint containing two counts was filed on December 14, 1932, against J. H. and A. M. Buckley by the City National Bank of Fort Smith, for itself individually and as agent and trustee for certain named plaintiffs, among whom were J. A. Riggs and P. L. Riggs, Ms wife, who filed an answer and cross-complaint against the bank and against I. H. Nakdimen as its president. This pleading- filed by Riggs and his wife contained allegations which will be later discussed. Testimony was heard upon the issues thus joined, and the court made certain findings, which are set out in the decree from which this appeal comes, which are supported either by the undisputed testimony or by what we conceive to be the preponderance thereof, to the following effect.
On February 14, 1931, J. H. Buckley and A. M. Buckley, who are brothers, borrowed from the City National Bank, as agent, the sum of $5,000 for the specific purpose, then made known to the bank, of buying certain property then about to be sold under a partition proceeding. The Buckleys became the purchasers of the property and obtained the loan from the bank to pay for it. The loan was evidenced by five notes, each for the sum of $1,000, all dated 2-14-1931, and all falling due 2-14-32, and to secure their payment the Buckleys executed to the bank, as agent, a deed of trust covering the property thus purchased. This deed of trust recited that it was given to secure, not only the $5,000 thus loaned, but also “any and all other indebtedness that may be due or owing to the mortgagee from the mortgagor. ’ ’ The court found that after the execution and delivery of the notes and the deed of trust securing them, the notes — -all of them- — were sold by the bank to one Hank Voile, who is now the owner of the notes, and that the bank has no interest in them.
It was further found that A. M. Buckley had acquired the interest of his brother, J. H. Buckley, in the lots, and had paid the interest on the notes and had otherwise complied with the terms of the deed of trust, and that Voile, the owner of the notes and the deed of trust, is not a party to this proceeding and is not asking the foreclosure of the deed of trust or other relief, but that the bank is asking its foreclosure to secure the “other indebtedness” due it at the time the deed of trust was executed. The court found that, when said five notes and deed of trust securing them were executed on 2-14-31, J. H. Buckley was at that time indebted to the bank in the sum of $25,900, evidenced by two notes, one for $10,000, and the other for $15,900. The court also found that when the two notes last mentioned were executed Buckley was worth a sum of money so greatly in excess thereof that security was not regarded as necessary, and none was taken, but because of the decline in values, then in progress, the bank, on August 1, 1931, took a mortgage from J. H. Buckley on a large amount of real property.
The court found that, as the bank had no interest in the five notes of J. H. and A. M. Buckley owned 'by Yolle, it had no right to foreclose the deed of trust given to secure them in satisfaction of other indebtedness due by J. H. Buckley to the bank, and that the count praying its foreclosure for that purpose should be dismissed for want of equity. There is no appeal by any one from that part of the decree.
It was further found that on August 1, 1931, J. H. Buckley, being indebted to the bank in the sum of $10,000, evidenced by ten notes each for $1,000, all dated August 1, 1931, and all due August 1, 1932, executed a mortgage to the bank upon six parcels of real estate. The bank sold all ten of these notes except note No. 7, which it still owns. Note No. 5 was sold to J. A. Biggs and his wife, and the decree ordered the foreclosure of the mortgage to enforce the payment of all ten notes. The bank had made a collection of $587.80, hereinafter referred to, and it was ordered that this sum be credited upon the ten notes ratably.
It was further decreed that the balance due the bank from J. H. Buckley, then unpaid, amounting to $18,400, but which was not specifically named in the mortgage as being secured by it “is subordinate-to the claim of the plaintiffs above named whose notes are named in the mortgage. ’ ’ In other words, the holders of the ten notes for a thousand dollars each had a lien upon the land described in the mortgage to secure their payment which was superior to any lien which the bank might have for any other debt due it, and it was provided that the owner of each of these ten notes “has the right to bid at said sale [foreclosure sale by the commissioner] and to purchase the property, and, in the event that the property is purchased by any of the plaintiffs, said plaintiff will not be required to give bond for the proportionate -amount of the said plaintiff’s judgment against said property.”
The cross-complaint filed by Riggs and wife against the bank and Nakdimen contained allegations to the following effect: They had for a number of years been depositors of the bank, and were accustomed to advise with Nakdimen about their investments, and had on a number of occasions bought notes owned by the bank on Nakdimen’s recommendation. They bought note No. 5 for $1,000, hereinabove referred to, for its face value and accrued interest, upon the representation of Nakdimen that it was secured by a first mortgage, lien upon valuable lands located in Fort Smith, when it was not in fact so secured. They allege the insufficiency of security to pay all ten of the thousand dollar notes, and they pray judgment against the bank and Nakdimen for the amount of their note No. 5.
It will be remembered that there has been no sale under the decree of foreclosure, and we do not, therefore, know to what extent, if any, the owners of note No. 5 will be damaged by reason of their purchase thereof. J. H. Buckley testified that the fair -market value of the lands described in the mortgage dated August 1, 1931, was on that date $37,000, and a real estate dealer who has no interest in the litigation placed the value on the same date at the sum of $56,600. It does not appear just when note No. 5 was sold, it being alleged that it was sold on the........................day of..............................................., 1931.
Dr. J. H. Buckley testified that he had been adjudged a bankrupt at the time his deposition was taken. He also testified that on August 1, 1931, he owned stock in a corporation then worth $16,000, which he could have sold a year earlier for $28,000, but which was worthless at the time of giving his testimony, -but he thought he was worth fifty to sixty thousand dollars net on August 1,1931.
The ten one thousand-dollar notes were written on blank forms across the back and face of which there was printed the words “Real Estate First Mortgage Coupon Note,” but these words were not written into the body of the note. J. A. Riggs testified that he supposed the mortgage was a first lien upon all the lands which it described, but he did not testify that Nakdimen made that representation. He did testify that Nakdimen “told me there was a mortgage on all Dr. Buckley’s property, and I accepted it on that recommendation.”
Riggs made no inquiry or investigation as to whether the mortgage was a first lien on all the property which it described until after Buckley had been adjudged a bankrupt, when he “ran the records,” as he expressed it, and found that upon parcel No. 4 of the land there was a first mortgage to Charlie Jewett, securing a loan-of $10,500, and that the land had been sold at the foreclosure sale of that mortgage to Jewett for $5,000, and that as to parcel No. 6 Buckley owned only an undivided one-fifth interest, which was sold with the other interests at a partition sale, and'that Buckley’s interest brought at this sale only $587.80. This is the sum above referred to which the court ordered credited upon the ten notes ratably.
In testifying about the mortgaged property and its value, the witnesses referred to the various lots as parcels Nos. 1, 2, 3, 4, 5 and 6, and we shall employ the same descriptions. Parcel No. 6 was not valued by Dr. Buckley in his estimates of value, but he placed a value of $14,000 on parcel No. 4, which, if deducted from his total estimate, would leave a remaining value of $23,000, and witness Little valued parcels 4 and 6 at $35,000, and, if these values are deducted from his total estimate, $21,600 remains.
It is not contended that Nakdimen made any specific representation as to the extent of Buckley’s interest in any of the parcels of land, but only that he represented that the mortgage covered all of Dr. J. H. Buckley’s land. This representation was not false, but was true. Nor is it contended that Nakdimen made any representation that the mortgage constituted a first lien on all the parcels of land which it described. Riggs’ impression that it did appears to have been based upon the printed words appearing upon the face and back of the note reading “Real Estate First Mortgage Coupon Note.”
Riggs and his wife do not own any of the five notes referred to in count No. 1 of the original complaint, and are not, therefore, interested in that mortgage. But the circumstance of. its execution does tend to show the good faith of the bank and its president, for that loan was made only about six months before the mortgage dated August 1, 1931, was taken, and no security for the five thousand dollar loan was given except only a mortgage upon the land which that money was borrowed to buy.
In this connection, it may be said that, while the adjudication of Dr. J. H. Buckley to be a bankrupt is conclusive evidence of his insolvency, it does not follow that Riggs and his wife will sustain a loss by reason of their purchase of the note. It was decreed that the mortgage of August 1, 1931, secured first the ten notes of a thousand dollars each, and that any security for the remaining debt due by Buckley to the. bank was subordinate thereto, and the bank has not appealed from that decree, and if the property shall sell at the commissioner’s sale for even half what its market value was represented to be on August 1, 1931, all ten of the thousand dollar notes will be paid in full. There is therefore no showing that the note owned by Riggs and his wife is worthless, or that it is worth less than its face value, and for this reason, if for no other, the court was justified in dismissing —as it did — the cross-complaint of Riggs and his wife against the'bank and Nakdimen as being without equity. May v. Dyer, 57 Ark. 441, 21 S. W. 1064.
Moreover, we do not think there was shown to exist any such confidential relation between Riggs and Nakdimen as the representative of the bank which would justify Riggs in failing to exercise an intelligent judgment in purchasing the note. Cherry v. Brizzolara, 89 Ark. 309, 116 S. W. 668. A reading of the note itself would have shown that it did not recite that it was secured by a first mortgage on all the lands described in the mortgage. On the contrary, the recital of the note in this respect, which appears just above the signature of the makers, is that “This note is secured by property in the city of Fort Smith,” which recital was true. Nakdimen was not asked and did not state that the mortgage here sought to be foreclosed was a first mortgage upon all of the lands described therein, but stated only that the mortgage described all the lands which Dr. Buckley owned, and that statement was not shown’ to be -false.
There is no contention that there was any guaranty of the payment of the note. On the contrary, when the note was sold to Riggs and his wife, it was indorsed as being transferred “without recourse.”
It appears to be a fact that the mortgage was a first lien upon five of the six parcels of land, and this lien, under the decree of the court, secures first the ten one thousand dollar notes, and none of the proceeds of the foreclosure sale may be credited to the other indebtedness due the bank until these notes have been first paid.
We find no testimony in the record to sustain an action for deceit by showing a lack of good faith and the making of false and fraudulent representations, and the decree of the court must therefore be affirmed, and it is so ordered. | [
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DAVID M. GLOVER, Judge.
_jFiapopo Apelu appeals the termination of parental rights to her daughter, R.W. (DOB 6-18-10). On appeal, she argues that there was insufficient evidence that it was in R.W.’s best interest for her parental rights to be terminated — specifically, that the trial court erred in finding that there was a potential for harm if R.W. was returned to her custody — and that there was also insufficient evidence to support any of the grounds upon which the trial court terminated her parental rights. We affirm the termination of Apelu’s parental rights.
Background
In the early morning hours of September 12, 2010, according to a DHS affidavit of facts for a petition for ex parte emergency custody, R.W. was taken to Arkansas Children’s 12Hospital by Rory Williams, her father (Apelu’s boyfriend). Her injury was later determined to be a spiral fracture of her left arm, which was consistent with suspected abuse. Apelu did not accompany Williams and R.W. to the hospital, and Williams left R.W. at the hospital. By 6:30 that night, no one had contacted the hospital to inquire about R.W.’s condition, and all of the telephone numbers given by Williams were nonworking numbers. When Williams finally contacted the DHS worker, his explanation for why he and Apelu had not been to the hospital was because they were both working; however, it was later learned that neither Williams nor Apelu were employed at the time.
Williams initially reported to the hospital that R.W. had fallen off the bed at his mother’s house; however, upon investigation, Williams’s mother denied this, stating that she had not seen R.W., her granddaughter, in a month. Williams then reported to his mother that he had dropped R.W. while he was showering with her. When the DHS assessor spoke with Apelu, Apelu backed Williams’s initial story of how the injury occurred, telling the assessor that R.W.’s arm was not broken when the child went to Williams’s mother’s house. The assessor was unable to get a “true” statement as to how R.W. received a fractured arm, as the family’s explanation of R.W.’s injuries was not credible, and the medical information was that the injuries were consistent with abuse. Ape-lu said that she did not initially go to the hospital because she stayed at home with her two-year-old son, who was asleep at the time. Her explanation for not arriving at the hospital until almost 9 p.m. was that she had to go to the store.
[ JJourt Proceedings
DHS took a seventy-two-hour hold on R.W. and her older half-brother, F.I. An order granting emergency custody to DHS was entered on September 15, 2010, and a probable-cause order was entered on September 26, 2010. Apelu and Williams were ordered to submit to psychological evaluations as well as random drug-and-alcohol screens. An amended probable-cause order was filed on October 12, 2010, adding the provision that there was to be no placement with a relative without an order of the court.
Apelu underwent her psychological evaluation in October 2010 with Dr. Paul Dey-oub, who diagnosed her with adjustment disorder with depressed mood and personality disorder. Williams was in prison at this time for a parole violation. In his summary and recommendations, Dr. Dey-oub noted that Williams lied to hospital staff about how R.W.’s injury occurred, first implicating his own mother and convincing Apelu to go along with his initial story; that Apelu then went along with Williams’s second story that he dropped R.W. while in the shower with her; that she rejected any notion that Williams abused R.W.; and that she was ready to resume her relationship with him when he was released from prison. It was Dr. Dey-oub’s opinion that the children |4should not be returned to Apelu until the court was convinced that she had benefited from individual therapy, had gained insight, and was able to protect her children in the future.
The trial court adjudicated the juveniles dependent/neglected in.an order entered December 14, 2010. Furthermore, because R.W.’s injuries were significant— fractures to her arm and clavicle, bruising and marks on her face, and lacerations in her mouth — the trial court found by clear and convincing evidence that R.W. had been subjected to aggravated circumstances. The trial court further found:
Both parents have credibility issues. Initially, Mr. Williams tried to blame his mother for [R.W.’s] injuries. When his account was found to be a lie, he changed his story. Mr. Williams’s accounts are inconsistent with how the injuries occurred. Ms. Apelu went along with the father’s first account, knowing it was a lie. [R.W.] was just over two months old when she sustained these injuries. Either or both of the parents should be able to explain what happened to her; however, neither is stepping up to the plate. Contrary to the parents’ assertions, these injuries were not the result of an accident. Rather, they were the result of some person or persons physically abusing the child. The court cannot be sure that both parents were not responsible for [R.W.’s] injuries. It is troubling to the court that Ms. Apelu is putting Mr. Williams ahead of her children’s safety by covering for him.
Before the court would be able to return the children to either parent, there will have to be a better explanation for [R.W.’s] injuries. Without a better explanation, the court will be hard pressed to return the children. The court will need a credible explanation at some point for these injuries. Failure to provide such credible explanation could be a barrier to reunification. For it is only when the cause of the injuries becomes known, can the court fashion a remedy to prevent their reoccurrence.
| .This order was not appealed. In a February 2011 review order, the trial court found that while Apelu and Williams were making efforts to comply, reunification continued to be “a long shot.” In a permanency-planning order filed on September 21, 2011, the trial court changed the goal of the case from reunification to adoption. In the permanency-planning order, the trial court reiterated its findings from the adjudication order, and further found:
The mother has made an effort to comply with the court orders, but the court is uncertain that the mother has made any progress. The mother has visited, completed the psychological evaluation, tested negative on random drug screens, attended therapy and parenting classes. The mother has not accepted that the injuries that [were] suffered by her children were intentional. If Mr. Williams was the offender and not the mother, then it is concerning that the mother only separated from the father less than one month ago. She testified today that she still loves Mr. Williams and has concealed from DHS and her therapist that she is seven months pregnant with his child. It concerns the court that the mother is still in love with Mr. Williams and it is only a matter of time before the two are back together and she allows him to move back into the home. The court will not monitor this case forever. Permanency must be achieved for these children.
The mother continues to have credibility issues, and the court is not certain if Mr. Williams was the offender. Both mother and father were responsible for these children and neither has given a plausible explanation for the injuries.
DHS filed a petition for termination of parental rights on November 4, 2011. In the petition, DHS alleged three grounds for termination of Apelu’s parental rights:
16that the juvenile had been adjudicated dependent/neglected by the court and had continued out of the custody of the parent for twelve months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent (Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a));
subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that return of the juvenile to the family home is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances which prevent return of the juvenile to the family home (Ark.Code Ann. § 9-27-341 (b)(3) (B) (vii) (a));
the parent is found by a court of competent jurisdiction, including the juvenile division of the circuit court, to have subjected any juvenile to aggravated circumstances. Aggravated circumstances means a juvenile has been abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification (Ark.Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)).
After a hearing, the trial court granted DHS’s termination petition, finding that all three grounds alleged in the petition were proven by clear and convincing evidence as to both Apelu and Williams. With regard to Apelu, the trial court found:
The child has been out of the home more than one year, and the mother has not remediated the conditions that caused removal. There are two major issues with the mother; lack of trust and poor judgment. The court is inclined to believe that Mr. Williams was the perpetrator in this case, but the court cannot be certain. If Mr. Williams was the abuser and not the mother, then by the time of the adjudication hearing, the mother should have had serious concerns about Mr. Williams. There was substantial testimony and the court made findings at the adjudication that [R.W.’s and FJ.’s] injuries were due to abuse and were not accidental in nature. If the mother was not the abuser, then she should have realized that it was Mr. Williams and ceased any relationship with him. If Mr. Williams was the abuser, then why would the mother continue in a relationship with him and have another child with Mr. Williams. This demonstrates a terrible |7lack of judgment on the mother’s part. This court found that the mother had credibility issues at the adjudication hearing, and the mother continues to have credibility issues today. The mother concealed that she was pregnant until she was seven months into her pregnancy. She concealed [from] DHS that she was having housing issues until she was scheduled to be evicted.
This case is about the mother’s inability to make good judgment calls and protect her child. The mother testifies that she is no longer in a relationship with Mr. Williams, but she admitted that she continues to have phone contact with Mr. Williams and she went to the restaurant where he works only a few days before this hearing.
There would be potential harm to [R.W.] if she were returned to her mother or father. Mr. Williams could easily come back into the picture and cause harm to this child. [R.W.] was only two months old when she came into care with a substantial amount of injuries. In addition, [F.I.] had healing rib fractures. Today, the mother begrudgingly admit ted that Mr. Williams has not been completely honest, but that is not good enough. Neither parent has ever given a credible explanation for the injuries. The court does not believe that the mother could adequately care for this child and protect her from additional injuries. There are no compelling reasons to give these parents additional time. The mother made an effort to comply, but she has not remediated the conditions that caused removal. The court questions whether this mother has truly disavowed her relationship with Mr. Williams. As to the mother, the Department has proven all three grounds alleged in the petition by clear and convincing evidence.
The court finds by clear and convincing evidence that it is in the best interest of the juvenile, [R.W.], to terminate parental rights and the court specifically considered the likelihood that the juvenile will be adopted if the termination petition is granted; the potential harm on the health and safety of the juvenile caused by returning the juvenile to the custody of the parents.
Apelu timely filed her notice of appeal from the termination order.
Discussion
This court set forth our standard of review in termination cases in Torres v. Arkansas Dep’t of Human Servs., 2012 Ark.App. 423, at 4-5, 2012 WL 2406614:
|sWe review termination of parental rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id. Grounds for termination of parental rights must be proved by clear and convincing evidence. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005); M.T. v. Ark. Dep’t of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). It must also be proved that termination of parental rights is in the children’s best interest. Smith v. Ark. Dep’t of Health & Human Servs., 100 Ark.App. 74, 264 S.W.3d 559 (2007). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). When the burden of proving a disputed fact is by clear and convincing evidence, the appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). We give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id. Where there are inconsistencies in the testimony presented at a termination hearing, the resolution of those inconsistencies is best left to the trial judge, who heard and observed the witnesses first-hand. Dinkins, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id.
Apelu’s primary focus on appeal is the trial court’s determination that R.W. would be subject to potential harm if returned to her custody, and therefore, termination was in R.W.’s best interest. Ape-lu argues that, while it took some time for her to disavow her relationship with Williams, she had done so, and that while she had diligently worked her case plan, the trial court was unable to separate her from Williams in its estimation because she did not immediately separate from Williams and instead stood by him and became pregnant by him after this case was opened. In support of her argument that she has disavowed any relationship with Williams, she points to her therapist’s testimony at the | germination hearing that she had come “full circle” in breaking the cycle of abuse/control/manipulation that Williams had over her, which was made more difficult because of her American Samoan background and tendency to be passive in her relationships with men.
Ultimately, this case boils down to credibility, the determination of which lies with the trial court. The trial court was not obligated to believe Apelu’s testimony or that of her therapist. Furthermore, the trial court was up-front about credibility concerns from the outset and the fact that it needed to know how R.W. came to be injured, beginning in its adjudication order. In the review order, filed in February 2011, Apelu was still living with Williams. In the permanency-planning order, filed in September 2011 (approximately three months before the termination hearing), the trial court found that Apelu had separated from Williams less than a month before but was still professing that she loved him and was pregnant with a second child with him.
There is certainly evidence to support the trial court’s determination that it did not find Apelu to be credible. As the trial court pointed out, either both parents were the cause of R.W.’s injuries, or, if Williams was the perpetrator, Apelu stood by Williams for a significant amount of time and refused to believe that he could have hurt her children, to the detriment of regaining custody of her children. The termination hearing was the first time that Apelu told the trial court that she was not going to resume her relationship with Williams; however, while she testified that she did not physically injure her child or | inknowingly allow physical injuries to her child, and she thought that Williams caused the injuries, Apelu still testified that she could not say that Williams abused two of her children, that she did not know if he had, even in light of medical testimony that the injuries were a result of abuse. Not only was R.W. abused, but after F.I. was removed from Apelu’s custody, it was determined that he also had healing rib fractures. So at the time the trial court was making a determination as to whether Apelu’s parental rights to R.W. would be terminated, she still had no answer as to what happened to R.W. or F.I. This certainly does not lend credibility to Apelu’s assertion that she could protect her children from further harm at the hands of another male, be it Williams or someone else. The trial court stated in the termination order that it was inclined to believe that Williams was the perpetrator of the injuries, but that it could not be certain. Furthermore, the trial court was disturbed by the fact that after this case was opened, Apelu hid the fact that she was pregnant by Williams for seven months from DHS and from her therapist, and hid her eviction from her apartment from DHS as well, leading the trial court to question what else Apelu was hiding, i.e., a possible relationship with Williams. These are legitimate concerns, especially in light of the deliberate injuries that were inflicted on two children at very tender ages, and we cannot say that the trial court’s credibility determinations and the decision that termination was in R.W.’s best interest were clearly erroneous.
Apelu also makes a passing argument that because in her view there was insufficient evidence that it was |nin R.W.’s best interest to terminate her parental rights, there was therefore no basis for any of the grounds that the trial court used to terminate her parental rights. Only one ground is required to terminate parental rights. Apelu’s argument that she did not fail to remedy the issues that caused removal is based on the same premises argued above with respect to the evidence supporting a finding that it was in R.W.’s best interest for Apelu’s parental rights to be terminated. As this argument fails above, it must also fail in this regard as well.
Affirmed.
WYNNE and BROWN, JJ., agree.
. At the time of the hearing on the petition to terminate the parental rights of Apelu as to R.W., F.I. had been placed in his biological father's custody. Furthermore, after this case began, Apelu became pregnant with and gave birth to a second child with Williams, a son, R.W.2. Neither of these children are the subject of this termination proceeding. Additionally, although Williams's parental rights to R.W. were also terminated at the same time as Apelu’s, Williams has not appealed the termination of his parental rights and is not a party to this appeal.
. The adjudication order also addressed injuries found on F.I. — healing rib fractures that were discovered after the children came into foster care. The fractures were ascertained to have occurred sometime after September 1, 2010; contrary to Mr. Williams’s suggestion, the trial court found that the fractures probably occurred prior to F.I.’s entry into foster care. Additionally, the CASA volunteer testified that in reviewing F.I.’s medical records in conjunction with this case, he suffered a broken left leg in July 2009 and presented to the emergency room in August 2010 with an injury to his right leg. Both of these incidents were attributed to F.I.’s cousin, which was troubling to the CASA volunteer because it was a similar explanation for two separate incidents. | [
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DAVID M. GLOVER, Judge.
| ,This case evolves from a real-estate contract entered into in October 2002 by appellees — James Read, Mary Read, Clarence Conwell, and Jane Conwell — and appellant Teddy Overturff. The appeal must be dismissed because there is no final, appealable order.
Real-Estate Contract
The real-estate contract provided that Overturff would purchase the land over 180 months; that upon execution of the contract, the Reads and Conwells would deliver a properly executed warranty deed to the escrow agent, who would hold the deed; and, that upon Overturffs completion of the contract, the escrow agent would provide the deed to 12Overturff or, in the event of default, would return the deed to the sellers. The contract provided that Overturff was awarded immediate right of possession to the property upon execution of the contract, but that he would not sell, assign, sublet, or otherwise convey his interest in the contract or mortgage or otherwise encumber the property or make any transfer of his equity or rights therein, without written consent of the Reads and Conwells first being obtained.
In September 2005, while Overturff was still making payments on the property, the Reads and Conwells entered into an oil- and-gas lease on the property with Western Land Services, Inc., for an initial period of five years; the lease provided, in part, for a one-sixth royalty payment, a one-time damage payment of $5,000 for each well drilled and $10 per rod for all access roads and/or pipelines constructed on the leased property, as well as possible shut-in royalty payments. Furthermore, the lease provided that it could be extended, at Western’s option, for an additional five years for an extension payment of $250 per acre. The lease was entered into without the consent or knowledge of Over-turff.
Pleadings and Motions
In February 2009, Overturff filed a complaint against the Reads and Conwells, Western Land Services, and Petrohawk Properties, LP. In the complaint, Over-turff alleged that he was the contract purchaser of the property; that in 2005, while payment |swas pending, the Reads and Conwells entered into an oil-and-gas lease on the property with Western Land; that the Reads and Conwells received payment for this lease but failed to give him credit toward the purchase of the property; that Western Land knew or should have known of the pending real-estate contract, ignored those contractual obligations, and interfered with the obligations by obtaining the lease and recording it, knowing of the likely consequence of encumbering the title to Overturffs property; and that by executing the oil-and-gas lease and encumbering the property, including limiting damages for drill sites and pipelines, the Reads and Conwells breached the real-estate contract and breached the warranties of the deed. Overturff requested judgment against the defendants, jointly and severally, for interference with his contract rights and warranties contained in the deed, claimed entitlement to an order striking the encumbrance created by the oil-and-gas lease, and alleged that any interest claimed by Petrohawk should be quieted in his favor. Overturff further alleged that the Reads and Conwells breached actual and implied covenants not to encumber or impede the title to his mineral estate, causing him to be damaged by having to receive a reduced royalty rate below the lease rate integrated by the Arkansas Oil and Gas Commission.
The Reads and Conwells filed an answer to Overturffs complaint and a cross-claim against Western Land in March 2009. They alleged in the cross-claim that Western Land represented that it would research the title of each property covered under the lease, determine if it had been subject to any real-estate sales contract previously entered, and |4exclude any property from the lease that was subject to a real-estate contract; that Western Land had a duty to ensure that each property in the lease was not encumbered by a real-estate contract; and that Western Land falsely represented that it had researched the property and determined that it was not encumbered by a real-estate contract, thereby inducing the Reads and Conwells to rely upon those representations in signing the lease.
In its answer, Western Land alleged that it was a bona fide purchaser, that the oil-and-gas lease should be upheld, and that the lease had priority over the real-estate contract alleged in Overturffs complaint. Petrohawk alleged that the lease should be upheld and have priority over Overturffs interest, as it was a bona fide purchaser and its receipt of the assignment of the lease had priority over Over-turffs real-estate contract.
Overturff amended his complaint in May 2009, incorporating all of the allegations and averments of his original complaint and alleging that he suffered further damages in the form of reduced royalties; that the Reads’ and Conwells’ actions of leasing the mineral rights after execution of the escrow contract breached the implied covenants of good faith and fair dealing, which was the proximate cause of Overturffs damages; and that the Reads’ and Con-wells’ leasing of the mineral rights and their conscious disregard for his contractual rights was an intentional interference with Overturffs right to lease his mineral interests by impairing title when it was reasonably foreseeable that their lease would interfere with Overturffs ability to lease the mineral rights. Overturff further alleged that the Reads and Conwells had committed fraud and usury by collecting illegal interest and |snot crediting him with the lease bonuses paid. Overturff provided proof that he paid off the real-estate contract and filed the warranty deed in October 2007 by attaching the recorded deed to his amended complaint. As to Western Land and Petrohawk, Over-turff alleged that he was in actual, open, and notorious possession of the property; that such possession was sufficient to show that Western Land and Petrohawk were not innocent purchasers for value; that Western Land and Petrohawk were made aware and were on notice by both the words and actions of the Reads and Con-wells and Overturffs actual possession of the property; and that the oil-and-gas lease should be declared null and void.
In November 2009, Western Land and Petrohawk filed a counterclaim against Ov-erturff, alleging that at the time the oil- and-gas lease was entered into with the Reads and Conwells, the real-estate contract was not filed of record, and therefore Western Land had no record notice of the real-estate contract; and because there was no actual or record notice, Western Land was a bona fide purchaser, the lease was valid, and the lease had priority over the real-estate contract. The counterclaim further alleged that the real-estate contract was not of record at the time the lease was assigned to Petrohawk, and because there was no actual or record notice, Petrohawk was also a bona fide purchaser.
In January 2010, Western Land and Pe-trohawk filed a cross-claim against the Reads and Conwells, alleging that the oil- and-gas lease provided that the Reads and Conwells warranted and agreed to defend title to the leased property and that the cross-defendants had not yet resolved the title dispute or offered a defense to Western Land and Petrohawk. | ^Western Land and Petrohawk contended that if Overturff prevailed on his claim, the Reads and Con-wells would have breached the warranty of title provision and would be liable to Western Land and Petrohawk for damages.
In April 2010, the Reads and Conwells filed a motion for summary judgment; Western Land and Petrohawk filed a motion to adopt the motion as their own. In August 2011, Western Land and Petro-hawk filed a separate motion for summary judgment, arguing that in a related action, Harbour v. Read, (Case No. 2008-258), the trial court had ruled upon the same facts and legal issues regarding the alleged liability of Western Land and Petrohawk; and that pursuant to stare decisis, Western Land and Petrohawk were entitled to have judgment entered in their favor and be absolved of any liability. In support of their separate motion, Western Land and Petrohawk relied upon the affidavits that were submitted in Harbour v. Read, which dealt with a different lease between different parties — there were no new affidavits addressing the lease involved in this case. The Reads and Conwells resisted this motion, arguing that the Harbour case was factually dissimilar to the present case because here, Western Land agreed to examine the escrow contracts and ensure that the lease did not encumber certain property, and that Western Land caused the breach when it misrepresented that it had completed this task. Furthermore, the Reads and Conwells contended that the present case involved facts that |7should have put Western Land on actual notice of the ongoing escrow contract because there was an obvious use of the property by other people. Overturff also resisted Western Land and Petrohawk’s summary judgment motion, arguing that the decision in Harbour v. Read should not bind him because he was not a party to that case and because the facts of the present case were different from those in the Harbour case.
Order
No evidence was taken on these motions. The trial court entered its order on November 4, 2011. The body of the opinion and order provided, in pertinent part:
While the Plaintiff was making his payments as outlined in the contract, separate Defendants Conwell and Read executed and delivered an Oil and Gas Release to Western Land Services, predecessor in interest to Petrohawk Properties, LP. Although Defendants received payment for this lease, they failed to give the Plaintiff any credit toward the purchase of their property. There is no evidence that the Defendants either asked or received the permission of the Plaintiff to sell the mineral rights to the property that he was under contract to deliver a Warranty Deed for.
Defendants Read and Conwell claim that they did not breach the Real Estate Sales Contract because title does not transfer to the Plaintiff until they [sic] finish paying off the installments.
As this Court has previously addressed in Harbour v. Read, a sister case, Western Land Services, as a Bona-fide Purchaser for Value, is protected from any attempt to nullify the contract; however, the Defendants should not have deeded or leased the mineral rights during the course of the land-installment contract because the contract was in escrow. Because the Plaintiff has not yet fully paid for the |sproperty, the money for the mineral leases is not theirs; however, if and when the Plaintiff makes the last installment payment, the Defendants shall pay to him the value received for the mineral lease with Western Land Services. If the Plaintiff does not make the last payment and instead defaults, then the Defendants shall keep the mon ey for the mineral lease. The exact amount paid to the Defendants from Western Land Services for the mineral lease shall be placed in an escrow account in Van Burén County until either of these contingencies is reached.
Overturff filed a notice of appeal on November 7, 2011. On appeal, he argues that the trial court erred in awarding damages on summary judgment; that the amount of damages awarded was wholly inadequate; and that the trial court erred in not allowing his claims for intentional tort of interference with a contract and for fraud to proceed to trial. We must dismiss this appeal because it is not a final, appealable order.
Discussion
“An order that fails to adjudicate all of the claims as to all of the parties, whether presented as claims, counterclaims, cross-claims, or third-party claims, is not final for purposes of appeal.” Office of Child Support Enforcement v. Willis, 341 Ark. 378, 380, 17 S.W.3d 85, 87 (2000). Here, it appears that the trial court’s order granted summary judgment to Over-turff on a breach-of-contract theory and to Western Land/Petrohawk on a bona fide-purchaser theory. However, at least two of Overturff s Rclaims — intentional tort of interference with a contract and fraud— were not ruled upon and constitute two of his arguments on his attempted appeal. Furthermore, the trial court did not specifically make rulings on the two cross-claims or the counterclaim or dismiss those claims. Because these claims remain outstanding, this is not a final, appealable order.
There is a second reason that this order is not a final, appealable order. To be final, an order “must be of such a nature as to not only decide the rights of the parties, but also to put the court’s directive into execution, ending the litigation or a separable part of it.” Lee v. Konkel-Swaim, 73 Ark. App. 429, 430, 43 S.W.3d 767, 769 (2001). The order appealed from does not set forth a sum certain due to Overturff from the Reads and Conwells — only that they should pay to Overturff the value received for the mineral lease with Western Land Services. This does not put the trial court’s directive into execution, as there is no sum certain stated that is owed to Overturff.
Appeal dismissed.
WYNNE and BROWN, JJ„ agree.
. Western Land assigned the oil-and-gas lease to Petrohawk.
. This was another case involving an oil-and-gas lease that had been before the circuit court dealing with different parties, a separate tract of land, and a different lease.
. The trial court’s finding that Overturff had not yet fully paid for the property is erroneous — Overturff provided proof that he paid off the real-estate contract and filed the warranty deed in October 2007 by attaching the recorded deed to his amended complaint.
. We note that Overturff has never filed a motion for summary judgment. Furthermore, Western Land/Petrohawk’s summary judgment was granted on affidavits from a separate, unrelated case.
. As discussed above, although the order is drafted in contingent terms, which would also prevent the order from being final and ap-pealable, in reality there is no contingency, as Overturff provided the filed warranty deed indicating that he had paid the real-estate contract in full. | [
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Martin, J.
"W., Special Judge. The appellant claiming-to be exempt from the payment of taxes by virtue of the exemption contained in the twenty-eighth section of the original charter, filed a bill to enjoin the appellees, railroad commissioners, from proceeding to enforce the collection of taxes as provided for in the act of 1883. The court below having dismissed the bill, an appeal was taken to this court to correct the alleged error of the Pulaski chancery court in holding appellant liable for such taxes.
It is to be understood at the outset that there is no tion made here now, as to the right of the original corporation, the Memphis & Little Rock Railroad Company, to be exempt from taxation according to section twenty-eight of its charter, enacted and accepted, and that company organized thereunder, many years before there was any constitutional inhibition on the legislative power to grant such exemptions. This was settled in Oliver v. M. & L. R. R. R., 30 Ark., 129, in accordance with the now established doctrine on this subject, that such an exemption in the charter of a corporation amounts to a contract and is within the protection of the clause of the constitution of the United States which forbids State laws impairing the obligations of a contract. Pierce on Railroads and Citations.
The establishment of this doctrine has not been accomplished, however, without a struggle and many earnest protests from courts and individual judges of the highest character. Mr. Pierce, in his able work, says : “The powexof the State legislature, even outside of constitutional limitations, to bind the State by a grant of exemption from taxation, has been frequently contested or questioned as an unauthorized surrender of an essential attribute of sovereignty. Pierce on Railroads, 481; 35 Wis., 257; 30 Penn. St., 9; 64 N. C., 155; 27 Vt., 140; 62 Ills., 452.
In Atlantic and Gulf Railroad Company v. Allen, 15 Fla., 637, Judge Wescott while recognizing the binding force of judicial authority, enters aix earnest protest against the doctrine, and does not hesitate to say, ■ if it were a new question, he would hold that this exercise of State sovereignty should not be bartered away.
And that eminent jurist, Ch. J. Redeield, in 27 Vt., 143, after conceding the doctrine to be established, as we have stated, says: “But it seems to me there is some ground to question the right of the legislature to extinguish by one act this essential right of sovereignty. I would not be surprised to find it brought into general doubt”.
The exercise of the power is not favored by the courts. Sentiments similar to those quoted run through many of the ■decisions of the highest courts. And it is not impossible that the prophetic announcement made by the learned counsel for appellant in their very able brief, running in the same groove with Judge Redeield’s suggestions, may yet be fullfilled. And it may prove true as asserted, “that ■except when directly authorized so to do by the constitution, no legislature ever did have power to grant an exemption from taxation, is a proposition to which every ■court in the union will come within twenty years. ”
At present, however, the precedents are the other way. The claim of the appellant is that the exemption from taxation in section 28 of the act of the incorporation of the original company, was by the terms of section 9 of that act, made assignable, and by virtue of a subsequent mortgage and sale thereunder p assed to, and became vested in appellant company. The two sections are as follows :
“Section 9. The said company may at any time increase its capital to a sum sufficient to complete the said road, and stock it with anything necessary to give it full opera tion and effect, either by opening books for new stock, or by selling such new stock, or by borrowing money on the credit of the company, and on the mortgage of its charter and works,”
“Section 28. The capital stock of said company shall be •exempt from taxation until the road pays a dividend of six per cent,, and the road, with all its fixtures and appurtenances, including workshops, warehouses and vehicles of ■transportation, shall be exempt from taxation for the period of twenty years from and after the completion of ■said road,”
The word “charter” as used in section nine must be taken to include at least the franchises of the old corporation in the sense of the right to own and to operate the road, take tolls and carry on its business. That this was made ■subject to mortgage, and sale is clear. That more than this was designed to be embraced in the transfer does not seem to be very patent.
Nor do wefeelit can serve any very useful purpose to dis-cuss that question at length here. In the view we take of it, and in the light of the adjudicated cases, there seems to be a more insurmountable difficulty encountered in finding in the appellant corporation the capacity to acquire and hold such a privilige, than in the old company to mortgage and sell. In order to sustain its case the appellant must establish both clearly.
Exemptions from taxation cannot be sustained upon doubtful implications. “The power of taxation is essential to the support and existence of the government, and a grant to the company of exemption therefrom is not to be presumed, and when given to a certain extent is not to be *extended by construction. — Pierce on Railroads, 493.
“A corporation is a creature of the law, deriving its exist-ence and faculties from the express grant of the government. It has only the powers so conferred, and all others are presumed to have been withheld. That legislative .grants to a corporation, whether of powers or exemptions, are to be strictly construed, so that nothing passes except what is given in clear and explicit terms, is a familiar doctrine which is applied with more stringency when the pow ers in question interfere with private rights or abridge-important functions of government.” — Pierce on Railroadsy 491.
“The sui’render of the taxing power is not to be presumed unless the purpose of the State to part with it clearly appears. The power is essential to the existence of government and is of vital importance that it should remain unimpaired.” A State cannot strip itself of this most essential power by doubtful words. It cannot by ambiguous language be deprived of this highest attribute of sovereignty.— Erie Railway v. Pennsylvania, 21 Wall., 499.
Judge Field in Delaware Railroad Tax, 18 Wall., 225, thus states the ' rule: “All public grants are-strictly construed. Nothing can be taken against the State by presumption or inference. The established rule of construction in such cases is, that rights, privileges and immunities, not expressly, granted, are reserved. There is no safety to the public interest in any other rule. And with special force does the principle, upon which the rule rests,, apply when the right, privilege or immunity claimed calls, for an abridgment of the powers of the government, or any restriction upon their exercise. The power of taxation is an attribute of sovereignty and is essential to every independent government. As this court has said, the whole community is interested in maintaining it undiminished and has a right to insist that its abandonment ought not to be-presumed in a case in which a deliberate purpose of the-State to abandon it does not appear. If the point were not already adjudged it would admit of grave consideration, whether the legislature of a State can surrender this power and. make its action in this respect binding upon its successors, any more than it can surrender its police power or its right of eminent domain. But the point being adjudged, the surrender when claimed must be shown by clear, unambigous language, which will admit of no reasonable construction con ■sistent with the reservation of the power. If a doubt arise as to the intent of the legislature, that doubt must be •solved in favor of the State.”
In Ohio Life Insurance Trust & Co. v. Debolt,.16 How. U. S., 435. “The grant of. privileges to a corporation are •strictly construed against the corporation, and in favor of ■the public. Nothing passes but what is granted in clear and explicit terms, and neither the right of taxation, nor any other power of sovereignty which the community have •an interest in preserving undiminished, will be held by the •court to be surrendered unless the intention to surrender is manifested by words too plain to be mistaken.”
Hoge v. Railroad Co., 99 U. S., 355. “The power of the legislature of a State to exempt particular property of individuals, or of corporations, from taxation, not merely during the period of its own existence, but so as to be beyond the control of the taxing powers of succeeding legislatures, has been asserted in several cases by this court, although against this doctrine there has been earnest protests by individual judges.”
“Bat though this power has been recognized, it is accompanied with the qualificationth at the intention of the legislature to grant the immunity must be clear beyond a reasonable doubt. It cannot be inferred from ambiguous terms or uncertain phrases. The power of taxation is an •attribute of sovereignty and is essential to every independent government. Stripped of this power it must perish. Whoever therefore claims its surrender must show it in language that will admit of no other reasonable construction.”
But it is needless to multiply authorities on this point to ■show how far the courts have gone in emphasizing the restrictions and limitations thrown around this sort of grant. We add only from Fertilizing Company v. Hyde Parle, 97 U. S., 666. “The rule of construction in this class of cases is that it shall be most strongly against the corpora tion. Every reasonable doubt is to be resolved adversely.. Nothing is to be taken as conceded but what is given in unmistakable terms or by an implication equally clear.. The affirmation must be shown. Silence is negative and doubt is fatal to the claim. The doctrine is vital to the public welfare.” 20 Wall., 37; 22 Wall, 527; 76 N. Y., 64.
Now, then, applying the rule laid down in these adjudications, do we find that there is clearly and unmistakably, without ambiguity or doubt, a grant of the exemption from taxation to the appellant company? The original company had it undoubtedly. Did or could this company take it by transfer from the old company?
If it take by virtue of the general act of 1868, July 23,. or of 1873, April 29, for incorporation in such cases, then without doubt the exemption could not pass, for the acts- and the constitution of 1868, under which they were passed,, as well as the constitution of 1874, all expressly and in the most emphatic terms forbade it. See Const. 1868, Art. 10, sec. 2; Art. 5, sec. 48; Const. 1874, Art. 5, sec. 25; Art. 12, secs. 5, 6 and 7; Gantt’s Dig., secs.-.
Did it yest in the appellant company by virtue of the act. of 1853 and the mortgage and sale thereunder?
The late cases of Morgan v. Louisiana, 93 U. S., 217, and Louisville & Nashville Railroad Company v. Palmes, 3 Sup. Ct. Reporter, 193, settle conclusively by the adjudication of the highest judicial authority in the land, and the court of ultimate resort in this class of cases, that the exemption from taxation granted to a railroad corporation is not attached to the road and property, and does not pass with it, but that it is a personal immunity and “incapable of transfer without express statutory direction.”
In the last case the supreme court of the United States-use the following language : “Theconception of an immunity that is impressed upon the thing in respect to which it. is granted is purely metaphorical. The grant is to a person in respect of a thing, and it is said to inhere in orbeattached to the thing only, when by its terms the grant is-assignable by a conveyance of the thing, and passes-with the title to each successor. ”
In order to effect the transfer of the personal privilege of exemption from the old company to the new, the ££ statutory direction” upon which such claim is based must be tantamount to a new grant to the latter company, springing out of the law that provides for its creation and organization .
Judge Gholson in Coe v. C, P. & I. R. R. Co., 10 Ohio St., 387, states the doctrine thus, speaking of such corporations: “ Such an artificial being only the law can. create, and when created it cannot transfer its own existence into another. ” * * * ££ The franchise to be a corporation is therefore not a subject of sale and transfer unless the law by some positive provision-has made it so,, and pointed out the mode in which such sale and transfer may be effected. ”
In State of Ohio v. Sherman, 22 Ohio, 428, Ch. J., Welch, in explaining what is meant by sale and transfer of' the franchise tobe a corporation, says: ££ That a corporation can, when authorized by law so to do, transfer, -sell or convey its charter or franchise to be a corporation and thus vest it in others, seems to be quite well settled. I do-not object to the proposition of law except it may be to the manner of stating it. The real transaction in all such cases in legal effect is nothing more or less and nothing-other than a surrender or abandonment of the old charter by the corporators, and the grant de novo of a similar character to the so-called transferees or purchasers. To look upon it in any other light and to regard the transaction as a literal transfer or sale of the charter, is to be deceived, we think, by a mere figure or form of speech. The vital part of the transaction, and that without which it would be a nullity, is the law under which the transfer is made. The ■statute authorizing the transfer and declaring its effect is the granting of a new charter couched in few words, and to take effect upon condition of the surrender of the old •charter, and the deed of transfer is only the evidence of the abandonment. ”
Now, all we have in this case, from which such grant is inferrable on any theory, is that in the act of incorporation of the old company it is authorized to borrow money “ on the mortgage of its charter and works.”
The utmost that a sale in this case could be claimed to accomplish is to enable a new corporation to come into •existence. Then there occurs a transfer from the old corporation to a new, distinct and independent corporation •clothed with those rights and privileges which are transferrable from one to another. But the privilege of exemption from taxation, as we have seen, is one inhereing in the .personality of the old corporation, and when that is ■destroyed the immunity goes with it. The two corporations could, at the most, ODly be claimed to be alike and not the ■same. “ Bimilis estnon idem, ”
But the new corporation, the appellant here, cannot, without stretch of inference • and an implication of the most extraordinary proportions, be supposed to exist by virtue of an organization under the old act of incorporation. It rests for its foundation on the one sole clause referred to, “the mortgage of its charter and works.” ‘That this can be construed to provide for the organization •of a corporation in the distant future, and to “ point out, ” in the language of the authorities, “the mode and manner in which the sale and transfer is to be effected, ” seems impossible.
As is well said by the learned counsel of appellees, “ the ■charter in question says nothing about making a new corpo •ration nor about organizing such a one, and gives no directions either as to time, manner or place. ” Indeed the original act, on the very face of it, utterly negatives the idea that it was ever intended for any such ’purpose as ■organizing a successor to the corporate entity, the old company, which was then and thereby created. The directions as to the organization under the act are all detailed and 'specific as to the names even of the persons who were to act as commissioners, the place where they were to meet and the name of the corporation. The whole machinery provided has reference, and sole reference, to the birth of the corporate being then created.
And it must be borne in mind that if this claim of appellant be well founded, then in the magic power of these few words, may well be claimed authority for this corporation, by the same right and the same process, to clothe a successor to itself with all these rights, privileges and immunities, and that to give rise to another, and so on ad infinitum. The argument, if good for this corporation, would •clothe it with all the powers of the first, among others that of “ mortgaging its charter that is, the old charter ; and 'thus providing, by another sale and purchase, for the evolution of its successor in like manner as this one is evolved from the original company. Thus, byimplication, providing for an unlimited succession of independent and separate corporations for all time to come.
The birth of each new corporation includes the exercise ■of the sovereign power of the State; a power as we have seen to be preserved “ undiminished and unimpaired” for the benefit of the community. Could such legislation be •sustained, even if it were clearly expressed in the act creating the original company? It certainly cannot, by implication, be impressed on a doubtful clause.
It is not devolved on the .State in such a controversy to «explain why, when the original act was passed authorizing a “ mortgage, ” there was a failure or refusal to provide at that time for all the processes by which it should ultimately be made most fully and effectually beneficial to the mortgagee. The original corporators, before they accepted it as their charter, would doubtless be careful to see that all' provisions deemed needful or desirable should be inserted,, so far as the legislature could be induced to accede to their-demands. At all events the difficulty is there, and, as is-held uniformly and again and again announced, in the most emphatic terms by the learned judges of the supreme court of the United States, in the opinions rendered there, as well as by the State tribunals, he who sets up a claim to exemption from taxation must prove it. And that not by vague,, doubtful and speculative implications, but the grant and the-scope and extent thereof, and the mode of its transfer,, must be shown clearly and affirmatively. It would have-been an easy matter for the legislature, if so intended, to* have expressed in a few apt words or clauses the design to-impress upon this charter, the character claimed, and provided for carrying out such design. Their failure to do* this raises a presumption against it.
The appellant utterly fails to show how it was possible for it to organize under the old charter. The machinery was not provided, the mode not pointed out. The difficulty is one that cannot be removed by any amount of fine reasoning on the general principles of law and morals that ought to control States dealing with their citizens. It is a. difficulty which counsel for appellant, in their very able,, brief and forcible presentation of the case, have failed to-overcome, simply because, as it seems to us, it cannot be done.
The present corporation, the appellant company, was organized in 1877. The only laws then in force under which it could be organized as a corporation, and to which the incorporation must be ascribed, prohibited the exemption from taxation.
“The prohibition which forbids the legislature from exempting property of railroad corporations from taxation) makes it impossible for the legislature to create such a corporation capable in law of acquiring and holding property free from liability to taxation. Louisville & Nashville R. Co. v. Palmes, supra.
The appellant company was not entitled to exemption' from taxation. The judgment and decree of the chancery court in dismissing the bill was correct and is affirmed. | [
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Smith, J.
The railway company filed its petition to have he damages assessed for its appropriation of the right of way arcoss a lot in the town of Monticello, alleging that the damage did not exceed $125. The lot owner answered the petition, and claimed that he was damaged to the amount of $500.
The dimensions of the lot were one hundred and fifty feet in front and running back at right angles three hundred and five feet. Through its whole extent, from east to west, the railroad was located. The land actually appropriated was a strip sixty feet in length and in width one hundred and fifty feet. But the owner’s fences and stables were torn down, and the lot which was adapted to and used for the purpose of a residence, was severed in two parts, leaving a parcel thirty-seven feet wide on the south side of* the railroad, while the main body, two hundred and eight feet wide, lay north of the road. Only about one-fifth of the lot was taken ; but the remainder was cut up into inconvenient parcels and the facility of communication between the severed . portions was impaired. Moreover, in order to make the grade level, an embankment four or five feet high was thrown up for the distance of seventy-five feet and earth pits were excavated, The place for a kitchen, garden, stables and outhouses was considerably curtailed.
The diminution in the market value of the property, by reason of the location of the road, was variously estimated by witnesses familiar with the surroundings, all the way from the amount conceded by the petitioning company to-the amount claimed by the respondent. One of the plaintiff’s own witnesses swore the lot was in his judgment worth $1,400 before the road was run across it, and between $1,000' and $1,100 afterwards. Another witness, who had been tax assessor for his county, estimated the property at $1,200-before the road was built, and considered its value impaired to the extent of one-third.
Much evidence was gone into with regard to the situation of the premises and the extent of the injury. The jury, under charge of the proper officer, were permitted to take a view of the property which was the subject of litigation. And they assessed the damages at $375.
It was objected below, and it is insisted here that, the damages awarded were excessive; and that the court erred in refusing one of the petitioner’s prayers- and in giving two instructions at the instance of respondent.
The instruction so refused was as follows :
“ Speculative damages, or damages which may be supposed to result as a consequence of locating and operating a railroad within a hundred feet or such a matter to the house of defendant, cannot be taken into account in estimating damages, etc.”
The instructions for the respondent that were objected to were these:
“ 3. The correct rule for measuring damages is to determine the value of the whole laud without the railway at the time the same was built, then find the value of the portion remaining after the railway is built,and the difference between the two estimates will be the true compensation to which the party owning the land is entitled.
“ 4. The jury, in estimating the damages, must consider all the present and prospective actual damages to which the owner of the land will be entitled by the prudent construction and operation of the road. They may consider the-effect the railway will have in decreasing the value of the-land for gardening purposes, for the building of stables and-outhouses, the dangers occasioned by risk from fire, care of family and stock, as well as inconveniences caused by embankments, excavations, ditches, and obstructions to the-free ingress and egress of the premises. All these must betaken into account in estimating damages. ’ ’
The jury had been told, in other instructions, to disregard all speculative or consequential damages, and to restrict their award to the damages to the lot. This meant that the-damage must naturally flow, and not remotely result, from the injury complained of; and that no damages were to be conidered except such as were peculiar to the lot-owner and not suffered by him in common with the rest of the community. But the rejected prayer sought to make the court go one step further and declare that the bringing of the owner’s dwelling-house into proximity to a railroad was not a proper element of damage. This is not the law. The inconveniences and disadvantages from the sounding of whistles, the ringing of bells and the rattling of trains ; the exposure of the premises to fire ; the increased danger of injury to members of the family and live stock are not speculative, but real. They diminish the vendible value of residence prop erty. And just compensation means not merely the value •of the land taken, but indemnity for the uses to which it is •applied. Mills on Eminent Domain, sec. 162.
The fourth instruction for,the respondent embodied the true rule. The jury are to consider all past, present and future damages which the construction of the road may reasonably produce.
The third instruction for the respondent — as to the measure of damages — is taken almost word for word from 1 Redf. on Railways, 3rd. Ed., p. 263.
It is in substance the same rule that was announced by this court in St. Louis, Ark. and Tex. R. R. v. Anderson, 39 Ark., 167. It is the rule laid down in Mills on Eminent Domain, sec. 166, and in Pierce on Railroads,p. 211.
The jury were properly charged. And their verdict is not so extravagant as to indicate that it was given under the •influence of passion or prejudice. It was their province to kamonize the testimony and to determine on which side the ¡preponderance lay. And if in this they came to a wrong •conclusion, it was the duty of the circuit court to set aside their finding on a motion for a new trial. But this court ■cannot undertake to average the testimony of witnesses where there is a conflict.
Judgment affirmed. | [
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Smith, J.
Harrison Peel died intestate in 1877, the owner of an undivided interest of five-sevenths in two hundred and forty acres of land in Independence county, upon which he resided. There was a deed of trust upon three-sevenths of one tract of eighty acres, and this portion of his estate was, after his death, swept away by foreclosure and sale. His widow and three infant children who survived him united with the owner of the other interests in a peti tion to the circuit court in chancery, praying for a partition and that Peel’s share might be set apart as a homestead for the widow and children. It was stated in the petition that, upon a division, the part which might be allotted to those •claiming through Peel could not exceed one hundred and •sixty acres in quantity, nor $2,500 in value.
To this proceeding, Peel’s administrator was, upon his own application, made a party defendant, and he filed an answer and cross-bill, setting up that debts to a large amount had been proved against his intestate and that it would be necessary to resort to the real estate to pay them. In his answer he incorporated a demurrer, questioning the right of the widow and minor heirs to a homestead in the land, because it appeared that the deceased owned only an undivded part. This demurrer to the claim of homestead was sustained and the circuit court proceeded to render a decree of partition between the petitioners, and that Peel’s widow be endowed of one-third of the lands set out for her husband’s share.
The cases that have been decided in other States, are in hopeless conflict on the question whether a homestead can be claimed in lands held in common. They are collected in Thompson on Homestead and Exemptions, secs. 180-8.
But in this State the question has been settled in favor of the right, at least under the constitution of 1868, by the case of Greenwood & Son v. Maddox & Toms, 27 Ark., 648, which has been followed by Sentell v. Armor, 36 Ark., 49, and by Sims v. Thompson, 39 Ark., 301.
The homestead provisions of cur present constitution are not materially different from those of the former constitution, so far as this question is concerned. Both provide that the homestead shall be owned and occupied as a residence ; and both are silent as to the character of the estate out of which the homestead is to be carved. Looking to the ultimate purpose of such provisions — the protection of the debt- ■or’s family against the vicissitudes of fortune — our opinion is, that the constitution protects whatever title or interest the claimant has ; and the mere fact that another person is interested with him in the lands ought not to deprive him of the right.
Peel was entitled to a homestead in his lifetime and whatever right existed in him at the date of his death ■descended to his widow and minor children. Constitution of 1874, art. 9, sec. 6; Johnston v. Turner, 29 Ark., 280.
Reversed and remanded with directions to overrule the •demurrer to the petition, and to decree homestead to the ■widow and infant children. | [
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Smith, J.
In a suit between the heirs-at-law of James Murray, deceased, for partition of the real estate descended to them from him, it was, in the year 1869, amongst other things, decreed that three of these heirs should pay to Para-lee Murray, another heir, $644.54, for owelty of partition; and the said sum of money was charged as lien on the parcels of land allotted to them by the decree. Paralee was at that time-an infant, but subsequently became of age and was married to James C. Tyree. In June, 1878, she and her husband exhibited this bill against the proper parties to •enforce payment of the sum awarded to her.
After the issues had been made up and depositions had been taken, but before submission of the cause, the female plaintiff died and the suit was revived in the name of her heirs and proceeded to a final decree in the Woodruff circuit court, from which an appeal has been prosecuted to this court.
All the proceedings had after the suggestion of Mrs. Tyree’s death were erroneous for the want of a proper party plaintiff. The sum awarded to her to equalize the partition between her and her co-heirs was a mere money demand, charged indeed upon lands, but not partaking of the nature of realty. Upon her death it went to her personal representative and not to her heirs or distributees. The-administrator, and not the heir, is the proper party to sue for a debt due the deceased. Lemons heirs v. Rector, 15 Ark., 436; Pryor v. Reyburn, 16 Id., 671; Anthony v. Peay, 18 Id., 24; Worsham v. Field, Ib., 447; Atkins, v. Guise, 21 Id., 164; Pope’s heirs v. Boyd, 22 Id., 535; Jacks v. Adair, 31 Id., 625; Wheelan v. Edwards,, Ib., 723.
The reason is, if the debtor should pay to the -heirs, he might be compelled by action to pay the same debt over again to the administrator. Our law prefers creditors to-heirs. If the dioses in action belonging to an estate could be collected by heirs, legatees or distributees, their is no security that they would be applied to the purpose, to which the law primarily destines them — the payment of the debts of the deceased.
In the absence of proper parties before the court, we forbear any comments upon the merits of the controversy.
Reversed and remanded for further proceedings. | [
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Smith, J,
Ellsworth brought an action at law against Lawrence for moneys lent, advanced and paid out to his use, for board and lodging, for the rent of rooms and for a balance alleged to be due on partnership transactions. The defences were the statute of limitations and a specific denial of indebtedness, either on individual or partnership account, coupled with an averment in general terms that, upon a fair settlement of the business of the partnership, the plaintiff' would be found indebted to .the defendant. And upon a suggestion by the defendant that the controversy involved an examination of long and complicated accounts, part of them growing out of an unsettled partnership, the cause was transferred to equity. And it was referred to a master to take and state an account between the parties.
At the next term of court, the plaintiff having taken proofs tending to establish his case, and the defendant having produced little or no testimony to the contrary, the master reported a balance of $2,633.69 in favor of the plaintiff. To this report the defendant filed exceptions, pending which he took his depositions ; so that the cause was finally heard as well upon the merits as upon the particular exceptions. The master’s report was set aside and without á further-reference and without restating the account itself, the court gave the plaintiff judgment for the lump sum of $1,000.. Both parties have appealed.
The individual account had its inception as far back' as-the month of November, 1872. On the seventh of April,. 1873, the plaintiff rendered to the defendant a bill for the rent of office and- living rooms, and for board of himself and family. This showed items of debitof $536 and credits to the amount of $400.80, leaving a balance of $135.20. The next bill, also for rent and board, was rendered September 7, 1874. It shows an indebtedness to date of $1,233.70, which includes the above-mentioned balance,, with credits of $922.50, leaving $311.20 due Ellsworth. On the first of January, 1877, the plaintiff rendered a third bill, which starts out with the previous balance, shows-a total indebtedness of $1882.92, less credits to be applied of $501.42, leaving a balanceof $1,381.50 in Ellsworth’sfavor.
In May or June of 1878, the plaintiff presented to the- defendant a bill of $425 for rent of rooms from January 1, 1877, to March 5, 1878, being at the rate of $30'per-month. Between April 1, 1877, and March 21, 1879, the defendant paid to the plaintiff in money, drafts and property $1,531. So upon this individual account' there is only a balance of $275.50 due Ellsworth. No objection was-made to any of these bills when rendered, nor indeed at all, until after the commencement of this suit.
The partnership account arose in this wise: On the-twenty-second of May, 1876, plaintiff, defendant and one-Fox entered into written articles of partnership for the-practice of medicine and surgery at Hot Springs. This-partnership was formed at the special instance and request-of Dr. Lawrence, who had been appointed a commissioner at the Centennial Exposition, and who expected to be in Philadelphia for a great part of that year. One of the principal objects in its formation was to conserve the large and lucrative practice which he enjoyed. Each partner was to share equally in the profit and expenses, whether he was-in the city or absent. Ellsworth was made secretary and treasurer of the firm. At the end of each month the-other partners were to report to him the number of patients-treated and the amount of moneys received and expended and monthly settlements were to be made.
Lawrence was absent from the. first of June to the-beginning of December, 1876. During this time no reports■ were made to or by him. However, he was liberally supplied with money by the firm. Ellsworth and Fox; exchanged reports regularly. Andón the first of February, 1877, an accounting was had, and a settlement of partnership matters to that date.
By this it appeared that the defendant owed the plaintiff $1,302.13. No regular account books, as it appears, were-kept, but the settlement was made from memoranda made-by the plaintiff, and based upon the report of the partners- themselves. And a copy of the settlement was furnished to each member of the firm.
The partnership continued until April 1, 1877, when it was dissolved by the voluntary retirement of Dr. Fox. A ••settlement was then had for the two preceding months, by which it was ascertained that the defendant owed the plaintiff $118.52, and also owed Fox $513.62, he having received and appropriated these amounts over and above his share of the partnership income. The plaintiff advanced the money to pay Fox.
The plaintiff and defendant then formed a new partnership, which ran until March 5, 1878, when a fire destroyed 'their office, books and papers. The defendant proposed, and the plaintiff assented to the proposal, that this partnership should be settled by each partner retaining what he had collected without accounting to the other. As, how•ever, the firm had used and occupied as offices four furnished rooms belonging to Ellsworth, which are proved to have been worth $80 per month, the defendant is chargeable with one-half of their rental value, say $446.66.
The decree does not disclose the grounds of the court’s dissatisfaction with the master’s report, and we are utterly "unable to perceive how it reached the conclusion that Lawrence owed Ellsworth the round sum of $1,000. Nevertheless, it should be affirmed, if approximately correct. Perhaps the court despaired of ever arriving at the precise -state of the accounts, but being convinced that the defendant was indebted to the plaintiff, rendered a compromise decree, splitting the difference between the parties.
There is no question of limitation in the case. The action was brought January 22,1880. Both partnerships terminated, and all the settlements were had less than three years before this. Upon the individual account, payments were made from time to time, the latest being of date March 21, 1879.
Where parties have had mutual dealings, and one renders •to the other a statement, purporting to set forth all the ■items of indebtedness on the one side and of credit on the ■other, the account so rendered, if not objected to in reasonable time, becomes an account stated, and cannot afterwards be impeached, except for fraud or mistake. —Oil Go. v. Van Etten, 107 U. ~8., 325, and cases there cited.
Here no fraud or mistake is shown, nor even errors or omissions of credit. Lawrence, both in his answer and ■deposition, denies somewhat vehemently that the accounts •of the firm of Lawrence, Ellsworth & Fox were properly •adjusted. But they have been once deliberately settled by the parties themselves at a time when they were of recent ■occurrence and fresh in their recollection. And it requires something more than bare assertions or vague suspicions of having been overreached to overturn such settlements. Dr. Fox, who is shown by the record to have been a man of a fine sense of honor, and who evidently cherishes a warm regard for both of his former associates, testifies that the settlements were fairly, intelligently and correctly made from the written reports of the several partners, and that ■they were understood and accepted by all concerned as final.
Moreover, Lawrence’s own conduct is totally irreconcilable with his present claim, that he owes Ellsworth nothing. For on the tenth of July, 1879, Ellsworth addressed to him, then at the Warm Springs in North Carolina, this •letter:
* ‘ Dear Doctor — I regret very much that you could not 'find time before leaving home to make full settlement with me of our accounts. It is a duty due both equally, and ■should not have been neglected. I gave you statement in •full over one year ago, requesting then that you should look It over and make settlement as early as possible. Since ¡then you have not paid me in money a siugle dollar. My necessities and those of my little family demand and1 compel me to arrange our business matters without unnecessary delay, and thislam determined to do, it being justice-to all interested. You were my debtor March 5, 1878, at. the time of the fire, $2,920.12, ”
He then mentions two small credits of grapevines since that time and offers to make liberal deductions to-induce a speedy settlement. He alludes to the fraternal feeling which had always characterized their past relations and reproaches Lawrence for having enjoyed the use of money, to which the writer was entitled, for three years-without interest. The letter concludes : “I only ask what, is right and just, and due from one man to another. There can be no excuse for not complying with my request. If you have any offsets that I have not covered in my statement, it will be my pleasure to consider them, and allow them, if correct. ”
Lawrence’s reply, written one week later, begins thus :— “My Dear Ellsworth:—
I have your last letter. It is utterly impossible for me to accommodate you or anyone at this time.”
He does not say, “You, Ellsworth, have no just demand-, against me,” but excuses himself from paying, on account-of his “temporary impecunious state,” This is decisive.
The master’s report was substantially correct. It gave the defendant credit for twenty-five dollars rent collected of an occupant of one of the rooms while he was absent,.
This, according to our restatement, reduces the indebtedness of Lawrence to $2,631.46.
The decree below is reversed, and a decree will be entered here for that amount. | [
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English, C. J.
The foundation of this criminal prosecution is the following paper:—
“Miller Circuit Court, Fall Term, 1882.
State of Arkansas v. Information for failure to erect signboard at railroad crossing Texas & St. Louis Railway Co.
Comes T, E. Webber, prosecuting attorney for the ninth ■circuit of Arkansas, and at the request of the grand jurors of the State of Arkansas, duly selected, empaneled, sworn and charged to enquire in and for the body of the county of Miller, in the State of Arkansas, and gives the court to ■understand and be informed that the Texas & St. Louis Railway Company, late of said county, on the first day of December, 1882, with force and arms, in the county aforesaid, said company being a railroad corporation operating in this State, did then and there fail to place and maintain across the public road described and known as the Texarkana and Cut-off road, where the same is crossed by the Texas & St. Louis Railway Company, a board with the words : ‘Railroad crossing — lookout for the cars while the bell rings or the whistle sounds,’ painted in capital letters ■thereon, and when said crossing above described was not then and there in any city or village, contrary to the statute, and against the peace and dignity of the State ■of Arkansas.
T. E, Webber,
Prosecuting Attorney 9th Judicial Circuit. ”
It seems that this information was returned into the court by the grand jury, endorsed a true bill by their foreman.
Process was issued upon the information, and served upon ■an officer of the defendant corporation.
Defendant appeared and filed a motion to quash the information, which the court overruled. There was a trial by .jury, defendant was found guilty, fined one hundred dollars, refused a new trial, took a bill of exceptions and appealed.
I. It was decided in State v. Whittock, ante 403, that under the provisions of the constitution of the State, there can be no criminal prosecution in the circuit court by information, except for the removal from office of county officers.
II. If, as submitted by the attorney general, it is a mis ■demeanor for a railway corporation to neglect to to put up a sign board ata crossing, as required by sec. 4961, Gantt’s Digest, and punishable as such under secs. 1996-6, lb., the prosecution for such offense, if in the circuit court, must foe by presentment or indictment, and not by information.— ■Sec. 8, Declaration of Rights.
That a railway corporation may be indicted and fined for •a non-feasance misdemeanor seems now to be settled. — 1 Dishop Or. Daw, 6th Dd., secs. 419 — 20.
Although the paper above copied seems to have been ■returned into court by the grand jury, endorsed a true bill by the foreman, it is not, and does not on its face purport to be an indictment found by the grand jury, but an information by the prosecuting attorney at the request of the ..grand jury.
As a prosecution by information the grand jury properly -had nothing to do with it, and could give it no validity by (requesting it to be instituted, or returning it into court.
The judgment is reversed, and the cause remanded to the ■court below with instructions to dismiss the information. | [
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Smith, J.
The defendant in ejectment moved to dismiss J the action because, as he alleged, he held the lands by vir- ° sun<Ry tax deeds, which were exhibited, and had paid taxes and made valuable improvements since his purchase; and neither the plaintiff nor any other person had tendered r j s. amount of all taxes and costs paid on account thereof interest and penalties, and the value of such improve-men£s> action was accordingly dismissed and the plaintiff has appealed. He .insists that. Sec’s. 2267-8-9 of Gantt’s Digest, which direct that an action against a purchaser at tax sale shall be dismissed for failure to make such tender previous to the commencement thereof, are in conflict with the Constitution of 1868, which was in force when the tax sales in question were had; or, if this be not so, that those sections have been repealed by subsequent legislation.
The constitutionality of this statute, at least so far as the Constitution of 1836 is concerned, was settled in Craig v. Flanagin, 21 Ark., 319, and Pope v. Macon, 23 Id. 644. Nor is it affected by any provision of the Constitution of 1868. Our attention has been called to Sec. 10 of the Bill of Rights in that instrument which declares that “every person ought to obtain justice freely and without purchase and to the case of Weller v. St. Paul, 5 Minn., 95, which holds a similar act to be unconstitutional because it, in effect, compels the plaintiff to purchase his status in coui’t. But the authority of the legislature over the whole subject of 1 legal remedies is ample. They have annexed as a condition precedent to the assertion in court of the right of the former owner, the payment of taxes, costs and the value of improvements. Surely a general declaration of the right of the citizen to his day in court was not intended to preclude the legislature from requiring him to do equity when he did come. Cooley on Taxation, 371, et seq.
Then as to the repeal of the statute ; certainly there has been no express repeal, and repeals by implication are not favored. To produce this result, the two acts must be the same subject and there must be a plain repugnancy between their provisions ; in which case the latter act, without the repealing clause, operates to the extent of repugnancy, as a repeal of the first. Or, if the two acts are not in express terms repugnant, then the latter act must cover the whole subject of the first and embrace new provisions, plainly showing that it was intended as a substitute for the first. United States v. Tynen, 11 Wall, 88; Henderson’s Tobacco, Ib. 652; The Distilled Spirits, Ib. 356; Daviess v. Fairbain, 3 How,, 636; United States v. Walker, 22 Id. 299; McCool v. Smith, 1 Black, 459; Johnson v. Byrd, Hempt. Rep., 434; Pulaski County v. Downer, 10 Ark., 588; State, use, &c., v. Watts, 23 Id. 304; Osborn ex parte, 24 Id. 479; Mears v. Stewart, 31 Id. 17.
Now the act of January 10, 1857, from which the above-mentioned sections are brought forward into the Digest, is entitled, “An act to quiet land titles in this State,” although it relates exclusively to tax titles. And the acts which are relied on as virtually repealing it are the general revenue laws of July 23, 1868, and of April 8, 1869. So that these enactments are not precisely upon the same subject, nor do they cover the same field ; and upon comparison of their provisions it will be found that the only inconsistency between them is, as to the time within which the tax title must be assailed and the amount to be paid to the purchaser at tax sale before he can be evicted. And to this extent the former act may be considered as revised and modified. But there is no indication that the legislature intended to abandon the policy of requiring the defaulting tax-payer to refund the taxes and pay for the improvements made on the premises and to offer to do this before he begins his action. our law taxes are glebae ascripti — serfs of the soil — a 0jjarge follows the land in whosesoever hands it may go. And if the tax sale may be invalid to divest the title of the former owner by reason of irregularities and failure of the officers properly to discharge their duties, yet the purchaser is subrogated to the lien of the State.
There is nothing in Hickman v. Kempner, 35 Ark., 505, to conflict with this view. There the tax purchaser was plaintiff, not defendant; and the cross-bill filed by the former owners was only a mode of defense. The statute does not prevent the original owner from defending his possession before tendering the taxes, &c., though even in that case he will be made to do justice. Hany v. Cole, 28 Ark., 299. Its terms only apply to cases where he is actor.
Judgment affirmed. | [
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Eakin, J.
The appellant applied to the circuit court of Pulaski county for a mandamus to compel the State land commissioner to receive in payment for certain swamp lands, subject to sale, an auditor’s warrant for $500 with 8 percent. coupons, issued under the act of March 16, 1869. The commissioner answered, denying the validity of the-act upon two grounds — first, submitting that .it was unconstitutional in its matter; and second, that it had never actually passed as it had been approved by the governor. He submitted further that the coupons were not receivable for lands, if the warrant was.
The court properly treated the answer, which’ presented matter of law alone, as a demurrer to the petition. It is the duty of the courts to know the law, statutory as well as unwritten, and they may resort, of their own motion, to any means of information which may solve their doubts as to what is law and what is not. Allegations of facts which show that a law never was passed are simply argumentative,” and suggestive. It is the same as to say there is no such law. Such facts need not be shown as evidence, but may be shown to the court in aid of its judgment.
The writ was denied, and the petitioner appeals.
If the act be unconstitutional, any further inquiry would be useless. It is therefore most convenient to dispose of that point first. The clause of the constitution of 1868, which is suggested as inhibiting the act, is found in sec. 6 of Art. X, as follows : “The credit of the State or counties shall never be loaned for any purpose without the consent of the people thereof, expressed through the ballot box.”
The act in question recites the congressional grant to the State, of all its swamp and overflow lands to be applied exclusively, as far as necessary, to the purpose of reclaiming said lands ; and that the legislature of the State had enacted laws for their reclamation by levees and drains. Further, that a large portion of said lands yet remained in the hands •of the State, which had not been sold or disposed of under previous acts, and which in their present condition, unless redeemed and protected from overflow, would be worthless to the State. Further, that at the outbreak of the war, all works on the public levees of the State had been suspended, ¡and the levees previously built had not been kept up and repaired,'whereby a vast amount of the lands were of no practical value, unless the works on the levees should be •carried on and completed.
The act then proceeds to prescribe a mode for the continuation of the work of reclamation. Its general features are as follows : Whenever a majority of the land owners in any locality which would be directly benefited by the ■building or repairing of any levee, or the ditching or draining of any overflowed lands, might, through the county •commissioner of internal improvements apply to the State commissioner of public .works to have it done, the latter officer was then authorized to cause surveys and estimates to be made, and empowered to proceed with the work or •not, as he might consider it expedient, and with a view to •the best interests of the State or individuals. Detailed provisions were made for the conduct of the work, and the contractors were to be paid by warrants, of which the one now offered was one properly issued if the law be valid. It was made receivable in payment for swamp and overflowed lands. Such, omitting details not affecting any question here, was the general scope and purpose of the act. It was provided that the interest becoming due on the warrants •should be levied upon and collected from the owners of the land benefited by»the work, according to the list to be made ■out by the commissioner of public works, and certified to the counties to be extended on the tax books for collection.
Obviously there was no loan of the State credit to any person or body corporate.' The State made herself prima rily liable for work which she considered it her duty and her interest to have done, and became responsible for nobody’s fulfillment of an obligation. It was for her own reimbursement that she provided the attempted tax. The holders of the warrants did not look to it. Whatever the •constitutional objections may be in the act itself, or any of its provisions, it is certainly not amenable to that of being a loan of credit; unless we can say that any public enterprise of the State must be considered a loan of credit, if it involves payment of contractors in the future, and its benefits incidentally inure partly to some individuals.
We proceed to examine if the act was ever passed. aid of this we look to the journals of the two houses, which the constitution requires to be kept and published. Art. 'V, sec. 12. This was done in Smithee v. Garth, 33 Ark., 17.
This court has declined to adopt the doctrine prevailing in England and some of the American States that the enrolled bills are conclusive. In the act as enrolled and printed there appears this clause: “And a sufficient amount of money is hereby appropriated to carry into effect the provisions of this act, such amount not to exceed twenty-five hundred dollars per annum.”
The journals show that the bill originally passed the house without this clause ; that it was amended in the senate by adding the clause ; that it was returned to the house as amended ; that the house refused to concur in the amendment, and so notified the senate; that the senate receded from the amendment, and returned the bill again to the house ; that it was then enrolled and signed by the officers of the two houses, and approved by the governor, with the amendment still remaining, and is now on file in the office of the secretary of State.
The constitution {Art. VI, sec. 15) provided that every bill “before it becomes a law” shall be presented to the governor for his approval.
The bill as approved by the governor, printed and enrolled, was'never passed by the house of representatives-at all. It was once passed by the senate, but that body retracted, and for the purposes of this case may be considered to have adopted the bill as passed by the house r although it did not formally repass it after it had receded from its amendment. As to the propriety of this parliamentary practice, we waive any question, as it is not here important. If we concede that the assent of both houses was formally and constitutionally given to a bill, it was a bill without this clause, and that bill was never approved! We cannot say that the amendment was unimportant, for it. had been a cause of difference between the two houses. We cannot say the governor would have approved the bill without the provisions for the expenses of its execution.
The journals upon this point are so plain and direct as to-leave no room for inference or presumption. We could not possibly reach the conclusion that something might have been done and omitted from the journals, which, if entered, would show that the bill had been finally passed by both houses as it was signed by the governor. The difference being substantial it needs no authority to show that, failing' to receive the governor’s sanction, the bill as passed never became a law.
The warrant was void.
Affirm. | [
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Smith, J.
This action was against a sheriff and the sureties on his official bond. The breach assigned was, that the principal in the bond, by virtue of an attachment issued and to him directed in a cause then depending, wherein the present relators were defendants, had seized and taken into his possession two rafts of timber of the value of seven hundred and fifty dollars ; that the attachment was afterwards dissolved and restitution of the property ordered, but the sheriff had failed after demand, to redeliver it, the same having been so negligently kept that while in the sheriff’s custody, it was carried off, made away with, destroyed or stolen.
The answer averred performance of the conditions of the bond ; denied carelessness in the preservation of the property attached ; denied demand before the commencement of the action, and the value of the timber as alleged, stating that it was worth two hundred dollars and no more.
The jury found for the plaintiff, and assessed the damages at seven hundred and eighty-four dollars and eight cents. Judgment was entered for the penalty of the bond and-, xecution awarded for the amount specified in the verdict., e
The first assignment in the motion for a new trial — that the verdict was contrary to law — has not been pressed here. Apparently no exceptions were saved to the charge of the court, or to its refusal to charge. And the instructions given, though copied into the transcript, are not before us for any purpose, not having been embodied, nor referred to, in the bill of exceptions.
The second ground was that the verdict was against evidence. Since the bill of exceptions does not distinctly negative the idea that other testimony was adduced at the trial besides that which is set out, we might under the rule in Seifralt v. State, 35 Ark., 412, and cases there cited, decline to consider this alleged error. However, we have looked into the matter sufficiently to satisfy us that the judgment is not unwarranted by the proof.
The third ground of the motion — excessive damages — is equally untenable. An old raftsman, who had had considerable experience in measuring timber and who had examined those rafts, with a view to purchase, testified that there weie fifty sticks of square oak timber, suitable for-shipbuilding, and ranging in length from forty to fifty-six feet; that the sticks would average twelve hundred feet each by board measure, and that the timber was worth at the time and place when and where it became lost to the relators twelve dollars per thousand. This with interest from the time of action brought to the date of trial would exceed the amount of the verdict.
The fourth and fifth grounds relate to the action of ^ court m refusing’ to continue the cause at the instance of the defendants, and m refusing leave to the defendants amend an application for a continuance.
This court has in two cases that we recall (Hensley v. Tucker, 10 Ark., 527; McDonald v. Smith, 21 Id., 460), reversed judgments because motions to continue were denied, but has usually discouraged attempts to control th discretion of the circuit court in such matters. It must be a flagrant instance of the arbitrary or capricious exercise of power by the circuit court, operating to the denial of justice, that will induce us to interfere.
The cause had been pending nearly eighteen months. There had been one mistrial in Jackson county and the venue had been changed to Lawrence. The defendants moved for a continuance on account of the absence of six witnesses. The testimony of four of these witnesses was not material, and no diligence had been shown in getting it.
But by the other two witnesses, Redd and Lambert, it was expected to be proved that they were present when the timber broke loose from its fastenings; that H. R. Trent used every effort to reclaim the same and land it a short distance below, but was prevented by the high stage of water in White river ; that said timber was not worth more than two hundred and fifty dollars ; that said witnesses were familiar with the timber business and with this particular lot of timber and its value ; that Lambert was present when the same was sold in New Orleans ; that there was less than fifty thousand feet of it, and that after paying expenses it produced not more than five dollars per thousand feet.
The court decided that the plaintiff must admit that Redd and Lambert would so testify, if present, or submit to a postponement of the trial.
Pending the consideration of this alternative, the defendants proposed to amend their motion by the insertion of additional facts which Redd and Lambert would swear to, but leave was refused. And the cause was set down for trial on a future day of the same term, the plaintiff consenting to admit the testimony of Redd and Lambert as set out in the original motion. When the day of trial arrived, the defendants professed to have suddenly discovered that the testimony of two ladies in Jackson county was essential to their successful defense. By them they expected to prove that the breaking loose of the raft occurred without the fault of H. A. Trent, who, as we suppose, was the person whom the sheriff had placed in charge ; that Trent immediatly went in pursuit, but such was the stage of water and the character of the country below that it was impossible to laud the raft within a distance of many miles. But this third motion for a continuance was overruled, and the trial proceeded with the result above stated.
In all this no error is perceived. The court evidently thought that the defendants were trifling with its time, or maneuvering for delay. And of this opinion also are wre.
Judgment affirmed. | [
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English, C. J.
A. J. Wright was indicted in the circuit ■court of Sebastian county, for the Greenwood district, for disturbing religious worship. The indictment charges that ■said Wright, on the twentieth day of August, 1882, in the county of Sebastian aforesaid, unlawfully and contemptucusly did disturb a certain congregation assembled in Burns-ville school house for religious worship, by talking in a manner that was calculated to disturb said congregation, against the peace, etc. He pleaded not guilty, and the case was submitted to the'court, sitting as a jury, by consent.
The bill of exceptions states that the evidence introduced by the State, on the trial, established the following facts :
“Defendant Wright, on the twentieth day of August, 1882, went to Burnsville school house, situated in the Greenwood district of Sebastian county, where some thirty or forty persons had assembled for religious worship, and in the presence of said congregation, and while they were engaged in religious worship, said to B. J. Morton, a member of said congregation, and one of the persons engaged in the worship, that he, Morton, was a liar, and used other insulting and offensive language to him. That said language so spoken by defendant, did offend and disturb said Morton in his devotions, while so engaged in such worship. That such language was spoken by defendant at a time when said congregation was engaged in singing, and was unheard and unnotieed by any of said congregation except said Morton^ and the same was spoken by said defendant in a low tone- or whisper.”
Upon the above facts the State asked the court to declare the law to be : “That a disturbance of any member of a. congregation, assembled for religious worship, is in law a. disturbance of the congregation.” The court refused so to declare the law, and, of its own motion, declared the law to-be : “That the disturbance of one member only of a congregation assembled for religious worship,is notin the sense and spirit of the law such a disturbance of a congregation so assembled as would warrant the conviction of a person indicted for disturbing religious worship.”
The coui't found the defendant not guilty and rendered judgment discharging him. The State was refused a new trial, took a bill of exceptions and appealed.
By the common law itpvas a crime to disturb persons assembled for wqrship. In England statutes were passed to protect dissenters in their worship, said to be necessary because their assembling was unlawful. In this country where every man has a right to worship God according to the dictates of his own conscience, and where all forms of worship are favored, it is admitted that such statutes are not required. 1 Bishop on Criminal Law, (6th Ed.), sec. 542.
In most, if not all of the American States, statutes have been passed for the protection of persons assembled for' worship, and for the punishment of their disturbance. The legislation of the State on the subject is embodied in sec. 1624, Gantt’s Digest, and the decision upon the original statute, and. the purpose and scope of the amending act, are reviewed and shown in State v. Hinson, 31 Ark,, 638.
Whether under an indictment for disturbing a congregation assembled for worship, like the one now before us„ the State must prove the disturbance of the entire congregation, has not been decided by this court.
In Dawson v. the State, 7, Texas Court of Appeals, Rep. 59, Dawson was indicted for disturbing a congregation assembled for religious worship, under a statute similar to ours. The evidence was, that after church was dismissed and the pastor and part of the congregation were on their way home, the defendant with others, engaged in a broil, and defendant, by cursing and swearing, disturbed those then on the ground ; that defendant behaved in an orderly manner so long as the pastor was present on the ground. It was held, on appeal, that defendant was rightly convicted ■on this evidence. The court said: “We are of opinion that the object, purpose, spirit and letter of the law are to protect the religious assembly from disturbance before and .after services, as well as during the actual service, and so long as any portion of the congregation remains- upon the .ground.”
In Cockerham v. The State, 7 Humphries’ Tenn. Rep. 11, Cockerman was indicted for disturbing a congregation assembled for worship, by talking and swearing, etc. The trial judge instructed the jury, that profane language addressed to one single individual of a congregation engaged in public worship, would maintain the indictment, and that it was not necessary for the whole congregation, or any .-given portion of it, should be interrupted or disturbed. On error the supreme court approved this charge. Mr. Justice .Reese, who delivered the opinion of the court, said: “Every individual worshipper in the congregation,as well as the entire congregation, is protected by the object and policy of our statutes, from rude and profane disturbance during the solemn moments of public worship. And he who thus disturbs one worshipper, cannot, in reason or in law, ■allege that he has not disturbed a congregation while engaged in public worship. ■ The protection intended by the
1 law would amount to little, if the congregation might in detail, through each of the individuals composing it, be disturbed with impunity.”
This case is directly in point; it has been frequently cited in the late text books on criminal law, and we have seen no disapproval of it. If the whole congregation must, be disturbed to make out the charge, not only one person,, but a dozen, or any less number of persons than the whole congregation, may be disturbed by a rude, ill-mannered, man, without subjecting himself to punishment.
Reversed and remanded for a new trial. | [
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Smith, J.
The bill in this case alleged that the plaintiff was the owner, by inheritance, of one undivided fifth part of a tract of land in Benton county, which had been forfeited to the State for the non-payment of the taxes for the year 1876 ; that the same, not having been redeemed, was, in 1879, conveyed to theStato by the clerk of that county, and the State, in the same year, sold and conveyed it to one Bates,. from whom the defendant derived his title. Copies of the title deeds of the plaintiff’s father and of the other conveyances referred to in the bill were exhibited.
The plaintiff further alleged that, at the date of said forfeiture, and at the date of filing his bill, he was an infant within the age of twenty-one years ; and that, prior to the commencement of this suit, he had tendered to the defendant the price paid by Bates on his purchase from the State, and all subsequent taxes and the fee paid the Commissioner of the State Lands and the value of all improvements made upon said land since said purchase, together with interest on these several sums at the rate of ten per cent, per annum from the time they had been respectively paid, and the same had been refused. The amount so tendered was brought into court. And the prayer was that the plaintiff might be permitted to redeem his interest in the premises.
To this bill a general demurrer was overruled; and the defendant refusing to answer, the court decreed redemption and the cancellation of the defendant’s title to the extent of one fifth part of the land upon payment of the redemption money, the amount of which was ascertained by the decrees. The defendant has appealed. And the contention of his counsel is, that after the State has disposed of forfeited lands the title of the former owner is extinguished, and an infant can not follow his land into the hands of a purchaser. Sec. 5197 of Gantt's Digest gives to minors the privilege of redeeming their lauds, which have been sold for taxes, at any time within two years after they become of age. And by sec. 5206 it is provided that, for the purpose of invalidating or defeating a tax title, it may be shown the land was the property of a minor. This right to redeem has been distinctly recognized by the Act of March 6th, 1877, (Acts of 1877, p. 29,) and by two acts passed on the • fourteenth of March, 1879, (Acts of 1879, p. 69, secs. 2 and 3; p 72, sec. 10.)
The statute conferring the rignt of redemption was in force when Bates acquired his title. Its meaning is not doubtful. The purchaser at a tax sale takes a defeasible title. If the land belonged to a minor it is subject to redemption at any time during his minority and for two years after he attains his majority.
Upon a review of all the legislation upon this subject, we conclude that, so far as the right of redemption is concerned, it makes no difference whether the State, or an individual,. becomes the purchaser of lands sold for taxes. Nor can any subsequent alienation of the land by a purchaser defeat the right.
The Act of March 6, 1877, and the amendatory Act of March 14, 1879, above referred to, provide for the manner in which minors and others laboring under disabilities shall redeem their forfeited lands before the State has disposed of the same. It is to be by sworn petition for redemption filed in the office of the Commissioner of State Lands. But the provisions of the acts are expressly restricted to cases-in which the State has not already parted with its interest. After a sale and conveyance by the State the Commissioner would have no further power over the land and it would be nugatory to apply to him for any relief.
No statute with which we are acquainted has prescribed the mode by which redemption is to be effected after a deed has been made to an individual, either upon purchase at the original tax sale, or upon purchase from the State after the laud has come into the office of the Land Commissioner. Under such circumstances it becomes the duty of the courts to mould the remedy so as to give effect to the right. And no better course for the purpose of accomplishing justice to all parties in interest occurs to us than the course which was pursued here. The plaintiff tendered to the present holder of the tax title the amount he considered to be necessary to redeem and followed up its refusal by a bill in equity, bringing the money into court. Chancery is an appropriate forum for adjusting the conflicting rights and equities of the parties.
Affirmed. | [
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OPINION.
There was nothing in the motion, and it was properly overruled. This court has repeatedly held that an indictment for gaming at cards need not allege the names of the persons who played the game, and there is no reason why it should allege the grand jurors’ ignorance of their names when they are not known. Orr v. The State, 18 Ark., 540; Medlock v. The State, Id., 363; State v. Parnell, 16 Ark., 506.
Affirm. | [
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APPEAL from Ouachita.
Facts same as in above case, and same judgment here. | [
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Smith, J
This was ejectment for an undivided moiety of a quarter section of land. The plaintiff’s evidences of title consisted of — 1, A tax deed from the clerk of Jackson county to Baldwin and Jago, dated April 29, 1873 : 2, A deed of trust from Baldwin to a certain trustee for his interest in the premises, executed September 26, 1874, to secure the payment of a debt, with power to the trustee to sell and convey upon default; and, 3, A deed from the trustee to the plaintiff executed in pui-suance of said power. The complaint stated that the defendant was in possession of the whole tract and had refused, after demand made, to admit the plaintiff to the possession of one half of the land and its rents a,nd profits. It also averred upon information and belief that the defendant held under sundry mesne conveyances and licenses from Baldwin.
The answer did not deny that the defendant claimed under Baldwin, and therefore virtually admitted it. Gantt’s Dig. sec. 4608. It alleged no title whatever in the defendant, beyond a possession of recent origin, but excepted to the sufficiency of the plaintiff’s title deeds. These exceptions were overruled. The cause came on for trial before a jury, and the plaintiff had a verdict and judgment.
No doubt the tax deed standing at the head of the plaintiff’s claim of title is bad, if the defendant is in a position to assail it. But it seems to be well established that where the source of title is identical, and the parties have no other title to rely upon, it is not permitted to either to go behind the person from whom they hold, or show that his claim is not good. Both parties claiming under the same right, the plaintiff was not bound to trace back his title beyond the common origin, unless the defendant showed some title in himself aliunde. Riddle v. Murphy, 7 Ser. & R. 230: Jackson v. Hinman, 10 Johns. 292: Fitch v. Baldwin, 17 Id. 165: Douglass v. Scott, 5 Ohio, 124: Ward vs. McIntosh, 12 Ohio State 240: Woolfolk v. Ashby, 2 Met. Ky. 288.
It follows from what we have said, that it was unneccs-2-sary for the plaintiff to deduce his title beyond Baldwin. If the defendant'held a title superior to Baldwin’s, or a title derived from Baldwin anterior to that of plaintiff, it devolved upon him to allege it and file the evidence of it. But his answer admitted that his own source of title ascended no higher than Baldwin. And in the absence of allegation and proof to the contrary, it must be presumed that it was junior and subordinate to that exhibited with the complaint.
The answer in truth presented no bar to the action and raised no issue to be tried.
Judgment affirmed.
DISSENTING OPINION BY | [
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Smith, J.
This is a suit on an insurance policy to recover disability benefits, and this appeal is from a verdict and judgment in favor of the insured.
The most difficult question in the case is the one of fact, whether the insured was totally and permanently disabled; but in the decision of that question we are required to give the testimony tending to establish disability its highest probative value.
The business of the insured is that of a farm manager, and as such he has charge of a farm owned by himself, another by his wife, and a third by the R. A. Dowdle estate, in which he was interested as executor and as an heir. For his management of this last-named farm he has been paid $600 a year for the past several years. He has complete control of all these places, pays the taxes thereon, prepares the chattel mortgages which the tenants execute, and makes all other contracts relating to the management of these farms. These facts being undisputed, it is insisted that the court should have declared, as a matter of law, that the insured was not totally disabled. The disabilities from which the insured suffers are conceded to be permanent. The insistence is that they are not total.
The testimony on the part of the insured is that prior to 1930 he gave these farms a most active and efficient management, but that since that time he has become less active, so that his management is much less efficient. The contention is that, whereas the insured formerly gave to his duties as farm manager the detailed attention which efficient management required, he is now able to give only supervisory attention, for the reason that his physical, disabilities have disqualified him from doing and performing all the duties which his employment require.
The insured has- become anemic and has lost much flesh and now weighs only 122 pounds. Formerly he rode horseback to and over his farms. He is now unable to do so, although he does occasionally make short trips on horseback, but it requires much fortitude to do this, -and that exercise occasions great pain in the manner hereinafter stated. The proper discharge of his duties requires much walking over the farms, and this he is now unable to do at all.
The insured has a fractured coccyx, and the doctors who have attended him believe this was caused by an injury sustained while riding horseback. It was not questioned by any of the doctors who testified, some on behalf of the insured and others on behalf of the insurer, that this condition caused pain, even in sitting quietly, and much more pain when riding horseback. The insured testified that horseback riding’ caused excruciating pain; that he rarely rode, and that for all practical purposes he had become unable to ride. It was conceded also that the insured could not remain seated, even at his home, for any length of time without suffering much pain, and to alleviate this condition as far as possible he used a circular rubber pad, filled with air, as a cushion, upon which he sat. He did not carry the air cushion around with him, as it was not convenient to do so, but he used one so constantly at his home that he had worn out two of these cushions and was now using a third.
The testimony shows that the insured has a bad case of fallen arches, and a foot specialist testified that this condition was permanent, and that no brace or arch support could be prepared or worn which would give material relief. It was testified that the anterior metatarsus in each foot had slipped down and out of place, and that this condition caused pain upon walking even for short distances; in fact, is painful if insured stands for any length of time. The insured’s feet were exhibited to and were manipulated before the. jury, and it is said that the grating of the bones caused by such manipulation not only could be seen but could be heard. It was shown that the tendons had stretched and had permitted the bones to drop down, causing the condition commonly spoken of as fallen arches or flat feet, and that to walk or stand caused pain, -which increased in intensity the longer the insured stood or the farther he walked, and became so great that he could not stand for any length of time or walk any considerable distance, although it was admitted that he could, and did, walk about town.
These conditions were aggravated by varicose veins in both legs, the existence of which condition was admit ted by all the doctors who testified in the case. The insured’s legs would swell and throb if he stood long or walked far, and the insured testified that if he did either a feeling of numbness appeared and his legs became cold, and he would go home and wrap them in blankets to partially relieve the discomfort and pain.
The insured also testified that these complications caused such pain and suffering that he was frequently unable to sleep at night, and caused him to spend much time lying down during the day. He admitted that he went to the bank and other places in the discharge of his duties, but he stated that if he could not be served promptly he was required to sit down until he could be waited on.
Three doctors testified that, through the concurrence of these ailments, the insured was permanently and totally disabled from performing any duties which required him to walk or stand for any considerable period or to ride for any considerable distance, and that he was not able to perform all the duties of a farm manager. One of the doctors was asked to “state whether or not, in your opinion, after the examination you made, he is capable of doing ordinary work of any kind?” and he answered: ‘ ‘ That brings you again to the question of his intestinal fortitude or endurance. ’ ’ All the doctors agreed that slight physical effort caused some pain, and their differences all related to the extent to which this pain would disqualify and incapacitate the insured from performing the ordinary duties of his employment.
It is pointed out by the appellant that the policy sued on contained no agreement to compensate the insured for any pain suffered by him. And this is true. But the real question in the case is whether the insured’s condition is such that he can perform, and should continue to perform, his work. Insured admitted that he had performed numerous acts relating to his duties, and he stated that this was done because he had to earn a living and felt compelled to do so notwithstanding the pain and suffering occasioned by their performance, but that he had to forego many of the activities essential to the proper discharge of his duties because some of them he could not perform at all, and that he partially performed such other duties as his necessity and fortitude enabled him to bear.
For instance, it was shown on behalf of appellant that the insured drove to his farm in his car, and that he was able to do this without injury to himself. But the tenants by whom this showing was made testified that the insured would not leave his car, and did not walk about the farm as its proper supervision required that he do, and he had formerly done.
It is argued that the instant case is sufficiently similar to the recent case of Ætna Life Ins. Co. v. Person, 188 Ark. 864, 67 S. W. (2d) 1007, as to be controlled by it, and that the application of the principles there announced requires the reversal of the judgment here appealed from. It is true that Person, the insured in that case, was a plantation manager, and that the use of a light car enabled him to manage his farms in the usual and customary manner without being required to ride horseback. But the evidence in the instant case is not to the same effect. The evidence in the Person case was summarized in the statement: “But nowhere in the testimony is there any substantial evidence to the effect ■that appellee’s physical condition has prevented him from doing all the acts of his vocation in the usual and customary manner. ’ ’ As appears from what has already been said, there is such testimony in the instant case. Person had an arrested case of tuberculosis, and the testimony was to the effect that his condition had become practically normal. Not so in the instant case. The insured’s condition was very abnormal, and all the duties of his employment which he did perform entailed pain and suffering.
The extent and consequences of this condition were submitted to the jury under an instruction given at the request of appellant, reading as follows: “You are instructed that the plaintiff is not entitled to recover merely by showing that he is afflicted with some disease or condition which causes pain. In order to recover under the policy upon which he sues, thg plaintiff must show by a preponderance of the evidence that his diseases disable him to the point where he is unable to perform all of the material and substantial duties of his occupation. ” ■
Appellant requested another instruction which reads as follows: “If you believe from the evidence that the plaintiff is executor of the R. A. Dowdle estate, and that he can perform some of the material and substantial duties of such executorship, that he is manager of his wife’s farm, and that he can perform some of the substantial and material duties of such management, that he is the owner of a farm, and that he can perform some of the material and substantial duties of operating his farm, then the court instructs you that he is not totally disabled as the term is used in the insurance policy, and your verdict should be for the defendant.”
The court gave this instruction after substituting the word “all” for the word “some” wherever it appears, and this action is assigned as error. This question has been considered so frequently and so recently that it need not be again reviewed. The most recent of these cases is that of Missouri State Life Ins. Co. v. Case, ante p. 223, where it was said: ‘ ‘ Therefore, to come within the meaning of the contract of indemnity, it is not required that the insured shall be absolutely helpless, but he is totally disabled when the infirmity from which he suffers renders him unable to perform all the substantial and material acts of his business, or the execution of those acts in the usual and customary way.” (Citing cases.)
Another recent case, citing others, is that of Missouri State Life Ins. Co. v. Brown, 188 Ark. 1136, 69 S. W. (2d) 1075, which is to the same effect. See also Equitable Life Assurance Society v. Bagley, 188 Ark. 1009, 69 S. W. (2d) 394; Missouri State Life Ins. Co. v. Johnson, 186 Ark. 519, 54 S. W. (2d) 407; Missouri State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600; Mutual Benefit Health Accident Ass’n v. Bird, 185 Ark. 445, 47 S. W. (2d) 812.
In the case of Standard Acc. Ins. Co. v. Bittle, 36 Fed. (2d) 152, it was held by the Circuit Court of Appeals for the Fifth Circuit (to quote the second headnote) that ‘ ‘ disability, within the meaning of a combined health and accident insurance policy, is total, if it prevents party from performing acts necessary to prosecution of his business in substantially the usual and customary manner, and does not mean state of absolute helplessness or inability to perform, at peril to health, some of acts required in conduct of business or occupation.” See also Metropolitan Life Ins. Co. v. Bovello, 12 Fed. (2d) 810.
One is ordinarily able to perform the duties of his employment, or he is unable to do so; and the fact that indulgent relatives might continue compensation for partial performance is not the final test of capacity, but is only a circumstance to be considered along with all other testimony. Nor does the law require one to perform duties at the peril of his life or health, nor to perform them if their performance entails pain and suffering which a person of ordinary prudence and fortitude would be unwilling and unable to endure.
Appellant requested an instruction numbered 5, reading as follows: “If you believe from the evidence that the plaintiff can, notwithstanding his illnesses, drive his automobile back and forth between Ozark and Morrilton, can drive his automobile over the plantations which he manages, can sit at his desk and transact his banking business, can walk about the streets of Morrilton and sell cotton, can make rental contracts with the tenants on his own place and other places which he manages, can collect the rents from such tenants, can take chattel mortgages, and that such activities, if any, on his part, will not aggravate his condition or make it imprudent for him to continue such activities, if any, then the court instructs you that the plaintiff is not totally disabled, and your verdict should be for the defendant. ’ ’
This instruction was properly refused as constituting a charge upon the weight of the testimony (Holmes v. Metropolitan Life Ins. Co., 187 Ark. 388, 60 S. W. (2d) 557), and leaves out of account certain duties which the testimony shows the insured would be required to perform to properly discharge, his employment, but which he is wholly unable to perform, and takes no account of the extent to which performance might be excused by reason of the pain and suffering which their performance would entail.
The judgment is affirmed. | [
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Johnson, C. J.
This controversy arises over the alleged superior rights of an attaching creditor of an insolvent foreign corporation and the receiver of said foreign corporation appointed by the courts of this State.
On May 11, 1933, appellant, a creditor of the National Surety Company caused writs of garnishment to be served on E. W. Oifenhauser & Company of Texarkana, Arkansas, and the People’s Trust Company of Little Rock; and on May 15, 1933, caused a writ of garnishment to be served on Taylor & Company. Each of said garnishees answered the writs by admitting indebtedness or liability to a certain extent in favor of the National Surety Company. On May 16, 1933, appellee, E. A. Henry, was appointed ancillary receiver of and for the National Surety Company by the courts of this State. Thereafter, appellee, as such receiver, filed his intervention in appellant’s action pending in the Pulaski Chancery Court in which the receiver asserted a paramount right or claim to the funds in the possession of all said garnishees, and, upon trial thereof, the chancery court determined that the receiver’s rights were superior and paramount to appellant’s garnishments, and this appeal is therefrom.
The receiver’s asserted superior rights must be tested by the laws of this State. The applicable insolvency laws of this State are §§ 5885 to 5893', inclusive, Crawford & Moses’ Digest. Section 5886 provides: “The receiver shall intervene in every case in which the property of such insolvent debtor has, within ten days before the filing of such petition, been attached, and, upon such receiver’s motion, every such attachment shall be dissolved and the attached property shall be turned over to such receiver upon the payment by the receiver of all costs which, shall have, accrued in the attachment suit.”
Appellant contends that the cited sections of Crawford & Moses’ Digest have no application to the facts in this case because: First, said sections apply only to residents of the State of Arkansas and can not be invoked by or extended to foreign corporations. This contention is made, not because the statute excludes such foreign corporations, but because they do not expressly designate them as «a class to be benefited thereby. "We perceive no good reason why the statutes cited supra should not apply to an insolvent foreign corporation which comes within its purview as effectually as to a domestic corporation. If the insolvent foreign corporation has property and creditors in this State, just why it should not be administered by the courts of this State is not pointed out in briefs. The cited statutes do not exclude foreign corporations by its terms, and we believe upon logic and reason that the insolvency laws in this State do apply to insolvent foreign corporations to the extent of administering such property as may be found within the boundaries of this State for the benefit of creditors in this State. In Franklin v. Mann, 185 Ark. 993, 50 S. W. (2d) 606, it was contended that certain insurance laws in this State were applicable to resident insurance companies only and not to foreign corporations, but, after citing § 11 of art. 12 of the Constitution of 1874, we specifically decided that the. Legislature had the intent and purpose of protecting all persons interested in insolvent insurance companies and that the insurance laws were applicable to such foreign corporations.
Neither can we agree that as a sequence of this view the assets of a foreign corporation in the hands of a State receiver must pass from this State to the State of the domicile of the foreign corporation for administration and distribution. It is well settled by authority that a foreign receivership can not divest the possessions and control of property situated in this State as against the rights of the citizen creditors of this State. No rule of comity is breached by enforcing our own laws in preference to the laws of other States. Choctaw C. & M. Co. v. Williams-Echols Dry Goods Co., 75 Ark. 365, 87 S. W. 632, and authorities there cited.
It is next urged that the insolvency statutes do not apply 'because, as it is said, the National Surety Company did not invoke the aid of the courts of this State in the appointment of the receiver. The nature and kind of proceedings which invoked jurisdiction in the appointment of the receiver is not before us for determination. It suffices to say, we must presume that the receiver was rightfully appointed by the court which effected it, and especially is this true in a collateral attack on such appointment as this appears to be. The view here expressed in no wise conflicts with the holding of this court in Walker v. McMillan, 187 Ark. 586, 61 S. W. (2d) 455, but is in full accord with it.
Next, it is insisted that § 5886, Crawford & Moses’ Digest, sufra, does not provide for the dissolution of garnishment proceedings, but applies only to attachments. This is the letter of the statute. We are cited McGuire v. Barnhill, 89 Ark. 209, 115 S. W. 1144, as supporting this contention. If a garnishment proceeding were the same thing as an execution, then the case referred to would be decisive, but such is not the fact.
The question here presented is, does attachment as used in the statute include garnishments ? Practically, if not all, the courts agree that garnishment is a mode of attachment. Rood on Garnishment, § 192, and authorities therein cited. 12 R. C. L., § 2, p. 775, defines garnishment as follows: “Garnishment has very properly been defined as an attachment by means of which money or property of a debtor in the hands of third parties, etc. ”
We conclude, therefore, that garnishment proceedings are included in the word “attachment” as appears in the statute.
It follows from what we have said that the trial court was correct in holding that our insolvency statutes were applicable to the facts of this case, and that the rights of the receiver were superior and paramount to those asserted by the creditor under the garnishment proceedings.
The net result of our view is that the assets of the foreign corporation were rightfully determined as belonging to the State receivership for administration and distribution by the court of this State, and, after paying costs of administration in this State, so much of the balance as may be necessary should be distributed to creditors in this State pro rata or according to law or the rules and usages of equity courts, and any balance remaining should be paid to the domiciliary receivership.
The decree appealed from, conforming to the views here expressed, should in all things be affirmed.
Butler, J., concurs. | [
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Mehaffy, J.
Hugh McConnell, who lived in Paragould, Arkansas, died on April 24,1933. He was between the ages of 80 and 90. The appellee, Mary E. Jernigan, went to McConnell’s house nine years before his death, and did the work in keeping- and managing the home and also waiting- upon McConnell. After McConnell’s death, the appellee filed in the probate court of Greene County the following claim:
“Mary E. Jernigan v. Estate of Hugh McConnell, deceased.
“Mary E. Jernigan states that the estate of Hugh McConnell, deceased, is justly indebted to her in the sum of three thousand ($3,000) dollars for services rendered by her in keeping house, nursing, caring for and waiting upon the said Hugh McConnell for 9 years next preceding his death:
“From March 1, 1924-March 1, 1925... $200
“From March 1, 1925-March 1, 1926... 200
“From March 1, 1926-March 1, 1927... 200
“From March 1, 1927-March 1, 1928... 200
“From March 1, 192i8-March 1, 1929.. 200
“From March 1, 1929-March 1, 1930... 500
“From March 1, 1930-March 1, 1931- 500
“From March 1, 1931-March 1, 1932... 500
“From March 1, 1932-April 5, 1933.... 500
“Total .....................................................................$3,000
“I, Mrs. Mary E. Jernigan, do hereby state that the above and foregoing claims made bjr me against the estate of Hugh McConnell, deceased, is just, true, correct and unpaid;' and that nothing has been paid or delivered toward the satisfaction of the demand herein made by me against said estate.
her
“ (Signed) Mary X E. Jernigan.” mark
The claim was presented to the administrator of the estate of Hugh McConnell, and disallowed. The claim was then presented to the probate court of Greene County. A hearing was had before a jury, and the jury returned a verdict in favor of appellee for $3,000.
The administrator prosecuted an appeal to the circuit court of Greene County, and the jury in the circuit court returned a verdict for $3,000 in favor of appellee. Motion for new trial was filed and overruled, and judgment entered for $3,000, and the case is here on appeal.
The undisputed evidence shows that appellee stayed at McConnell’s house continuously for approximately nine years; that she was there at the time of his death.
The appellee testified that she was going on 71 years old and lived in McConnell’s house for 9 years; no one else lived there except Sammy McDaniel, who lived there for a little while, and Enzie Thomas, witness’ son-in-law, who boarded there the first four years. The only other members of the McConnell family who were there were visitors who stayed a week at a time. McConnell had six spells of sickness, and the sixth one took him away.
Mrs. Lena Fisher testified that she and her husband had operated the Fisher Drug Store, which adjoined the McConnell residence, for 23 years; she saw McConnell every day; Mrs. Jernigan lived there for 9 years most of the time, and performed services for him; she took care of the house, cooking, washing and ironing, and looked after him when he was sick, without help, except during the last illness, when there was a man there to help her. Witness said she could not say how much the services were worth in dollars and cents but they were worth a lot; she was the only one who pleased him, and her services were worth more than the services of anybody else. When he was sick, she waited on him, stripped beds, and washed quilts and blankets practically every day; heard McConnell say that he wanted Mrs. Jernigan to put in a claim at his death to take care of her as long as she lived; he would say to Mrs. Jernigan: “You will never lose anything by this. You will get your pay.” Witness did not know of Mrs. Jernigan’s getting any pay. Dr. Majors and Dr. Ellington waited on him. Prior to McConnell’s last illness, Mrs. Jernigan would often take his breakfast to the bed; during his last illness Thomas was there night and day and did some of the disagreeable work, but Mrs. Jernigan did most of it. McConnell made a will and left his real estate to witness. During McConnell’s last illness he and Mrs. Jernigan had a misunderstanding, and she threatened to leave him; witness went over to McConnell’s house, and an agreement was made tlat he was to pay her $3.50 a week if she would stay on. This was a short time before he died. Mrs. Jernigan lived with McConnell and got her board. McConnell paid for the medicines which he bought for Mrs. Jernigan. The only money witness ever saw him give to her was checks for household expenses during his last illness. This witness heard McConnell on several occasions say he wanted Mrs. Jernigan to get her pay.
Dr. Majors testified that he was McConnell’s physician during his lifetime; did not know when Mrs. Jernigan came there, but it had been a long period of time; had several spells of sickness; Mrs. Jernigan did the housework, gave him his medicine and baths.
Enzie Thomas, son-in-law of Mrs. Jernigan, heard McConnell say he wanted her paid well. Mrs. Jernigan’s work consisted of washing, scrubbing, giving him medicine, cooking, and general housework. Mrs. Jernigan waited on McConnell all the time that witness and his wife lived at McConnell’s. Thomas testified that it would be worth $4,000 to do what Mrs. Jernigan had done for McConnell.
Dr. Ellington testified that during the last few years he would see McConnell two or three times a week; that he would look pretty gay and be down town; for the last few years McConnell was not able to work; he did not recall seeing Mrs. Jernigan wait on him. The last three or four weeks it was a job to take care of him. ■
H. S. Trice testified that for the past several years McConnell had been feeble, but that he was going around tending to his business most of the time. He had been for nine years in old age and feeble health, but was able to tend to his own business.
The will of Hugh McConnell was introduced in evidence, and the drug store and dwelling house adjoining was left to Mrs. Fisher. His will provided that his debts should be paid.
The evidence was sufficient to justify the jury in finding that appellee did the work for McConnell during his lifetime, and that it was McConnell’s intention and he agreed to pay her for same.
As stated by the Texas court: “ It is a delicate matter to allow a contract of the character of one under consideration to prevail, for the dead man cannot tell about the affair, and the testimony is usually in favor of the living, for the latter are usually the prime favorites as against those whose tongues are closed in death. Such being the condition of affairs, when such a contract is made the basis of recovery, it must be fully and satisfactorily proved.” Dyess v. Rowe (Tex. Civ. App.) 175 S. W. 1001.
But in the instant case the undisputed evidence shows that the appellee lived at McConnell’s house and did his work for several years; that a portion of the work was very disagreeable, and the evidence also' shows that she had not received any pay for it. Two juries heard the evidence, and- found in favor of the appellee. A majority of this court, however, is of the opinion that she cannot recover for any work or labor done more than three years prior to McConnell’s death.
“The following actions shall be commenced within three years after the cause of action shall accrue, and not after: first, all actions founded upon any contract or liability expressed or implied, not in writing.” Crawford & Moses’ Digest, § 6950.
Appellee claims $1,500 for the last three years, and she was awarded that amount by both juries. We have therefore reached the conclusion that she is entitled to recover $1,500, and that the rest of her claim is barred by the statute of limitations.
The judgment will therefore be modified and affirmed for $1,500. It is so ordered. | [
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McHaney, J.
Appellee brought this action in replevin in the justice court against appellants for the recovery of eight bales of cotton, grown in 1932 by Elmer Barrett, on which he held a valid recorded mortgage. From a judgment in his favor, an appeal was prosecuted to the circuit court, where, on a trial to a jury, he recovered judgment for the cotton or its value, $238.
The only question argued on this appeal is the sufficiency of the evidence to support the verdict and judgment, it being contended that the court erred in refusing to direct a requested verdict for appellants. The facts are not in dispute, and are substantially as follows: The cotton was grown by Barrett in 1932. On February 1, 1932, he executed a chattel mortgage to appellee to secure an indebtedness, which was duly filed for record and which remained unpaid and unsatisfied. Sometime after the cotton was harvested and baled, Barrett, without appellee’s knowledge, hauled the cotton to Conway for sale, but, being unable at that time to get a satisfactory offer for same, stored it in the Conway Compress Company’s warehouse, receiving compress re ceipts therefor rather than haul it back to his home, a distance of about 30 miles. On January 23, 1933, Barrett sold the cotton to Austin Johnson, a cotton buyer, at $5.60, with the agreement that Johnson should hold same, and that he, Barrett, should receive any advance in price up to January 26, 1933, and the compress receipts were delivered to Johnson, who, on January 25, sold a part of the cotton to appellant, Cockrill & Company, and a part to appellant, McFadden & Oates, delivering to them the compress receipts. Johnson deposited the proceeds of these sales in the Bank of Conway and drew his check on said bank in favor of Barrett for the purchase price of $5.60, which check was not delivered to Barrett until he returned to Conway on January 28, at which time the Bank of Conway was closed and in the hands of the State Bank Commissioner for liquidation. Barrett refused to accept the check on said insolvent bank, and notified appellee of the situation, who immediately brought this action. Neither Johnson nor appellants had any actual knowledge of appellee’s mortgage, nor did they make any inquiry of Barrett regarding same. Barrett had been trading with appellee under a like mortgage for about ten years, during which time he permitted Barreti to sell his cotton at such time and for such price as suited him, but at all previous times the cotton had been paid for and Barrett had accounted to appellee for the proceeds.
Under this state of facts, appellants contend “that, by his admitted practice, extended over a period of about ten years, in permitting Barrett to sell cotton covered by a chattel mortgage at such time and place, and at such price and to such persons as he might deem proper, and when the. sale was made to bring him the proceeds of the cotton, the appellee waived his lien on the cotton, and created an agency on the part of Barrett to sell this cotton, which agency he is now estopped to deny.”
This case was not tried in the lower court on the theory that appellee had made Barrett his agent for the sale of this or other cotton, and no instruction was requested or given in this regard. An instruction was asked, and given in part as follows: “And so in this case, if you find from the evidence that Adkisson by his conduct had permitted or acquiesced' in the sale of mortgaged cotton by Barrett, then this would amount to a release of his mortgage on such cotton and your verdict should be for the defendant.” It is not contended that appellee knew this cotton had been removed from the farm or stored in the compress, or that Barrett had sold it or contemplated selling it. The only custom established by the evidence under previous mortgages was that Barrett would sell his cotton for cash and pay the proceeds to appellee. Here no completed sale was ever consummated between Barrett and Johnson, as the agreement for sale contemplated payment in cash and not by a check on an insolvent bank. Had Barrett received the sale price in cash and failed to account to appellee therefor, a wholly different case would be presented, not now necessary to decide. In 11 C. J. 627 it is said: “If the mortgagor is not the mortgagee’s agent for the sale, the mortgagee will not be estopped to assert his rights against a purchaser by any act of the mortgagor, unless the mortgagee has knowledge of the mortgagor’s intention and the purchaser relies thereon in ignorance of the truth, and a mortgagee is not estopped to assert his rights against the purchaser where the latter has not paid the purchase money and so is not damaged.”
Johnson, although not a party to this action, cannot be damaged, as he has failed to pay the purchase price. Appellants cannot be damaged as they have, or did have, their right of action against Johnson. Neither appellants nor Johnson bought the cotton on the faith of any former custom between appellee and Barrett. Moreover, we are of the opinion that the fact that appellee had permitted Barrett to sell mortgaged cotton in former years is insufficient to establish an implied consent to sell this particular cotton, or a waiver of his lien undér the mortgage. Neither Johnson nor appellants had ever bought any cotton from Barrett prior to this sale, and it would be rather far-fetched to hold that they had a right to rely on a course of dealing between mortgagor and mortgagee, of which they had no knowledge. Appellee’s mortgage being of record or on tile, both Johnson and appellants were bound to take notice thereof, and bought subject thereto. We have examined the authorities cited by appellants, but do not find them to be of controlling influence here.
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Mehaffy, J.
In 1923 Arthur D. Foster, the appellee, took out a policy on his life for the sum of $5,000. The policy carried a disability clause, and was made payable on the death of appellee to his executors, administrators or assigns.
The appellee became indebted to Dr. S. P. Black-wood, and on June 1, 1926, and also on July 10, 1926, executed unconditional assignments. On August 2,1926, Blackwood assigned the policy to the First National Bank of Corning to secure an indebtedness of approximately $4,500' and any other indebtedness which he might owe.
Foster became disabled within the terms of the policy, and the company made payments, some of which were paid to the bank and credited to Blackwood’s indebtedness.
In April, 1929, the First National Bank of Corning secured a loan from the Corning Bank & Trust Conn pany, and among the assets offered the Corning Bank & Trust Company was the indebtedness of Blackwood. In 1930 the Corning Bank & Trust Company became insolvent, and The Corning Bank & Trust Company purchased the assets, among which was the indebtedness of Black-wood secured by assignment of the policy above mentioned.
This suit was filed by appellee, alleging’ that his assignments to Dr. Blackwood were intended only to secure payment of a debt he owed Blackwood at the time, and that the debt had since been paid in full. It is appellee’s contention that appellant has no greater title than Blackwood had. He prayed for a reformation of his assignment and for possession of the policy.
Appellant admitted that it had possession of the policy, but denied appellee’s right to reform, and alleged that it was the unconditional owner by reason of the transaction above set forth. It further alleged that it, and its assignor, Corning Bank & Trust Company, with out knowledge or notice of appellee’s contention, had relied upon the assignments executed by appellee to their prejudice, mid that appellee is estopped to claim ownership.
There was a trial and a decree in favor of appellee, and the case is here on appeal.
Both Foster and Blackwood testified that, while the assignment was unconditional, it was made for the purpose of securing appellee’s indebtedness to Black-wood, which was at that time $1,580. They further testified that, when Blackwood made the assignment to the bank, appellee only owed Blackwood $905, and they talked to Mr. Lindsey, of the bank, and told him that the assignment to Blackwood was made for the sole purpose of securing Foster’s indebtedness to Blackwood, and that it had all been paid except $905; that the bank knew that the assignment was made to Blackwood for the purpose of securing the debt, and knew the amount of the indebtedness. They testified that they told the bank that the assignment was not intended to be an absolute assignment, but the intention was that, when the debt was paid, the policy was to be returned to appellee. There was other evidence corroborating the statements of the payments to Blackwood, reducing the indebtedness to $905. The evidence of Foster and Blackwood was not contradicted.
The witnesses for appellant testified that they read the assignment, and relied on. Mr. Arnold’s statement that it had an assignment of a life insurance policy as security for Blackwood’s note. F. B. Sprague, J. Gr. Black and J. F. Arnold, all testified to substantially the same facts: that they took the assignment, and understood that they were getting the policy because the assignment was unconditional.
• There was considerable testimony introduced, but it is immaterial in the determination of the issues in this ease, and for that reason we do not set it out.
The appellant makes two contentions: first, that the court erred in its finding that appellee was entitled to a reformation of his assignments to Dr. Blackwood; second, that the court erred in its finding of law to the ef feet that Corning Bank & Trust Company could not rely upon the written acknowledged assignments from appellee to Br. Blackwood, and that appellee is not estopped to deny they conveyed absolute title.
As to the first proposition, it is urged that appellee was not entitled to reformation of his assignments unless the evidence was clear and convincing, and appellant cites and relies on two cases: Purvis v. Horn, 185 Ark. 323, 27 S. W. (2d) 48, and Fullerton v. Storthz, 182 Ark. 751, 33 S. W. (2d) 714. In the case in 185 Arkansas, there was an assignment, and the court said: “If the second assignment set out above had been the only assignment, it would, of course, have been proper to tell the jury that it could not be treated as a mere pledge unless the testimony to that effect was clear, satisfactory and convincing. ’ ’
In the instant case, there was the positive testimony of both Blackwood and Poster that the assignments were intended only for the purpose of securing the indebtedness to Blackwood, and that this was known to the bank. The representative of the bank, who received the assignment and contracted with Blackwood, was not a witness, and therefore the testimony of Blackwood and Poster was undisputed.
The evidence shows that S. P. Lindsey was the vice president of the First National Bank, and had positive knowledge that the assignment to Blackwood was for the purpose of securing a debt which at that time amounted to $905. • The fact that both Blackwood and Poster testify to this, and that Lindsey does not testify, malee the evidence on this, we think, clear and convincing.
It is contended by the appellant that the fact that appellee had Lindsey subpoenaed, and did not put him on the stand raises the presumption that, if he had been examined, his testimony would have been unfavorable. We do not agree to this contention. He was an officer of the bank; both appellee’s witnesses testified to the transaction with him; he was present, and the appellant could have put him on the stand, and would doubtless have done so if he would have contradicted the testimony of Poster and Blackwood.
In the case in 182 Arkansas, the court said that a contract would not. he reformed for mistake unless it be clearly shown that the mistake was common to both parties, and that the contract as executed does not express the contract as understood by either of them.
We think the finding of the chancellor on this question was correct. Moreover, the insurance contract, while assignable, was not negotiable, and any defense which could have been made to a suit by Blackwood, could also have been made against his assignee. General Motors Acceptance Corp. v. Sanders, 184 Ark. 957, 43 S. W. (2d) 1087.
Again this court said: "The fifth requisite of a negotiable instrument under that section is that.it must be payable to order or bearer. The instruments sued upon are lacking in that essential, and are not negotiable instruments. Since the instruments were not negotiable, but assignable only, appellant took them subject to all defects or infirmities available to the maker as a defense against the payee therein.” General Motors Acceptance Corporation v. Salter, 172 Ark. 691, 290 S. W. 584.
It is next contended that the court erred in holding that the bank could not rely on the written assignments, and erred in holding that appellee is not estopped. Appellant calls attention to 37 C. J. 438. The paragraph relied on in C. J. reads as follows: "An assignor may be estopped to question the validity of an assignment of a policy, where the elements of an estoppel are present; otherwise not.”
That same paragraph also contains the following: "It has been held, however, that the assignor is not es-topped to set up title as against one to whom the assignee assigned the policy.”
There could be no estoppel in this case for several reasons; first, the court found that the bank knew that the original assignment was for the purpose of securing a debt; second, the court found that there is still a balance of the debt due Blackwood. Appellee would have no right to maintain a suit for the policy until the debt secured by the assignment was paid. The policy, being assignable but not negotiable, put the bank upon inquiry to discover what interest Blackwood had in the policy, and especially is this true since the assignment by Black-wood was of his interest only.
There is no claim and no evidence that the appellee did anything that would estop him, and he did nothing that would prejudice the rights of the appellant, and the only thing that appellant claims would operate as estoppel is making the unconditional assignment. As we have already said, the instrument, being assignable but not negotiable, appellant was put on notice, and it was its duty to make inquiry and ascertain for what purpose the assignment was made. In addition to this, Blackwood’s assignment was an assignment of his interest only, and this put the appellant on notice.
“As to estoppel and laches, the onus is on the party setting* them up to make out the facts on which they rest.” Locke v. Bowman, 168 Mo. App. 121, 151 S. W. 468.
“Nobody ought to be estopped from averring* the truth, or ascertaining a just demand, unless, by his acts or words or neglect, his now averring the truth or ascertaining the demand would work some wrong to some other person who has been induced to do something, or to abstain from doing something by reason of what he had said or done or omitted to say or do.” Herman on Estoppel, vol. 1, p. 6.
“Equitable estoppels only arise when the conduct of the party estopped is fraudulent in its purpose or unjust in its results, and this forms the distinction between the common-law estoppel, and that which has grown up in equity in modern times.” Herman on Estoppels, vol. 2, p. 862.
Appellant next calls attention to Cooley’s Briefs on Insurance, vol. 2, p. 1115. There is nothing in this authority that supports the contention of the appellant.
Appellant cites and relies on the case of Tower v. Stanley, 220 Mass. 429, 107 N. E. 1010. The court there said, among other things: “The first notes being* valid for their original tenor, the plaintiff concedes that he must pay the amounts, and it would follow that upon pay ment lie -would be entitled to a cancellation of the assignment and a return of the policy.”
Appellant next calls attention to Fidelity National Bank & Trust Co. v. McNeal, 67 Fed. (2d) 516. "We find nothing in this case that supports the contention of the appellant. The certificates transferred in that case bore the blank indorsement of the paving company, the original owner, and the appellant indorsed nothing on them to indicate its ownership or interest in them. It thereby clothed the Municipal Securities Corporation with every indicia of ownership. The court held: “Having clothed that company with every indicia of ownership, the appellee having acquired the securities in good faith, for value, and without notice of appellant’s interest, it is estopped to assert that interest to defeat appellee.”
The facts in this case clearly show that the original assignment by Foster was to secure the payment of his indebtedness to Blackwood, and that the bank took Black-wood’s assignment of his interest with full knowledge of the facts. There is. considerable conflict in the authorities as to the assignment of insurance policies. Many courts hold that a life insurance policy cannot be assigned to any person having no insurable interest, except as security for a debt. Those courts hold that an assignment to a person who has no insurable interest except for the purpose of securing a debt, is void, and that when made for the purpose of securing a debt, they are valid only for that purpose. This court, however, has held otherwise.
“But it is said that Mrs. Bledsoe had no insurable interest in the life of Henry, and that the assignment was void for that reason. The law does not allow one having no interest in the life of another to speculate upon that life by taking out a policy of insurance upon it; and, if Mrs. Bledsoe had taken out this policy on the life of Henry in her own name, there might be some question as to whether she had such an interest in his life as would support the policy. But every person has an insurable interest in his own life; and, as Henry had the right to take out a policy on his own life, payable to his administrator or assigns, it is not disputed that this policy was valid. The policy being valid and belonging to Henry, he had, on the approach of death, the same right to give and transfer this property to any one in whose welfare he felt an interest as he had to dispose of any other property that he owned.” Matlock v. Bledsoe, 77 Ark. 60, 90 S. W. 848. This case was followed in Page v. Metropolitan Life Insurance Co., 98 Ark. 340, 135 S. W. 911; National Life & Accident Ins. Co. v. Jackson, 179 Ark. 412, 16 S. W. (2d) 469; Home Life Ins. Co. of N. Y. v. Masterson, 180 Ark. 170, 21 S. W. (2d) 414.
In the last case the court said: “Again, in Page v. Metropolitan Life Ins. Co., 98 Ark. 340, 135 S. W. 911, it was held that the assignment of a life insurance policy to one not having an insurable interest in the life of the insured is not objectionable as being by way of cover for a wager policy, unless, at the time the policy was taken out, the insured intended to make such assignment.
‘ ‘ This court has adhered steadily to this ruling, and it has been uniformly held that a wagering contract of insurance is contrary to public policy, and void.”
The assignment therefore is not void, although there may be no insurable interest, but since the policy is assignable but not negotiable, the assignee of Blackwood had no greater right than Blackwood had. Besides, the evidence shows that the bank knew that the original assignment to Blackwood was for the purpose of securing a debt.
We find no error, and the decree is affirmed. | [
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Mehaffy, J.
This suit was begun by appellees, Froug’s, Incorporated, and the Union Bank, against the appellant, S. M. Dent, receiver of Globe & Rutgers Fire Insurance Company, in the Pulaski Circuit Court, to recover on two insurance policies issued by appellant. One of the policies for $2,500 covered the store and office fixtures. Liability on this policy was admitted in the court below, and this policy is not involved here. The other policy, the one here involved, was for $5,000 covering stock of merchandise in appellee’s store at 414 Main Street, Little Rock, Arkansas. The appellant denied liability on the ground that the policy had been canceled. Jury was waived, and the case was tried by the court sitting as a jury, and resulted in a finding and judgment against appellant for the amount of the policy. The case is here on appeal.
The policy was regularly issued and accepted by the appellee. The appellant states the question to be determined by this -court as follows: “The sole question therefore as to policy No. 5,510,782 is whether notice by the company to the agent (who is also the agent of the assured) to cancel, without tender of unearned premiums, and the .return of the policy itself, is sufficient to constitute a cancellation in fact of the policy.”
There is practically no conflict in the testimony, and the facts may be stated as follows: 'Bruce S. Biddle, agent of appellant, issued the policy sued on. Appellant instructed its ag’ent to cancel the policy and retake the same from the appellee. The said agent did in fact report to the company that the policy was canceled, and he secured another policy to be issued by the Westchester Fire Insurance Company. Biddle, however, never notified the appellee either about the cancellation of the policy or that the other policy was issued by the Westchester Fire Insurance Company, and the appellee never heard anything about this until after the fire. The undisputed evidence shows that the Biddle agency had a small portion of appellee’s insurance, but that on all occasions when they would get a policy for appellee it would be submitted to Froug for his approval and did not become effective until he approved it. Biddle had no authority to put in effect any policy issued until it was approved by Froug. While he had authority to write insurance policies and did write them for Froug, Froug always required that the policies be presented to him for his approval. There is no evidence in the record that Biddle had authority to cancel a policy, to waive the notice, or to waive return of premium, and there was no notice given to Froug, no premium returned, and no notice that any other policy had ever been issued. The policy sued on contains the following statement with reference to cancellation of policies: “This policy shall be canceled at any time at the request of the insured; or by the company by giving five days’ notice of such cancellation. If this policy shall be canceled as hereinbefore provided or become void or cease, the premium having been actually paid, the un earned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except when this policy is canceled by this company by giving notice, it shall retain only the pro rata premium.” After the fire, Froug made proof of loss under the policy here involved, and, at the suggestion of one of the adjusters for the insurance company, he filed proof of loss with the Westchester Fire Insurance Company, but stated in the proof of loss as follows: “We are furnishing this proof of loss so as to preserve the rights of the parties in interest because of the controversy with respect to liability under the policy.” He never had the policy of the Westchester Fire Insurance Company, never saw it, and never accepted it, and did not know until after the fire that it had been issued or was in existence, and he did not return the policy sued on in this action.
Appellant cites and relies on Phoenix Ins. Co. v. State, 76 Ark. 180, 88 S. W. 917. That case holds, as many others, that the stipulation for five days’ notice was made for the benefit of the assured and could be waived by the assured, but the court stated: “The policy was in fact canceled by the agent, and his act in doing so was ratified as soon as brought to the attention of the assured.” There is not only no such evidence in the instant case, but the undisputed evidence is that the assured did not ratify it, did not know about it, and never accepted any policy without an opportunity to first examine it.
Appellant next calls attention to the case of Allemania Fire Ins. Co. v. Zweng, 127 Ark. 141, 191 S. W. 903. The court stated in this case: “The court held in effect that, where a policy of insurance provides that it may be canceled upon notice to the insured, notice by the company to its own agent to cancel the policy is ineffective as a cancellation, in the absence of authority to the agent from the insured to act for him in receiving notice of cancellation and in procuring other business.” In thé instant case, there is no evidence of authority of the agent to r'eeeive notice of cancellation of the policy or write a policy in substitution thereof. On the contrary, the un disputed evidence shows that the agent did not have authority, that no policy was in effect until it had been submitted to and approved by Mr. Froug..
The next case to which attention is called is Insurance Underwriters’ Agency v. Pride, 173 Ark. 1016, 294 S. W. 19. The court in that case said: “It is true that mutuality is one of the essentials of a contract, and such essential is not lacking in this contract. 'Both Pride and Howard conferred authority in the beginning on Burns to insure their property in any company he represented, leaving the selection or designation to him. Our court is committed to the doctrine that authority of such breadth and scope has the effect of constituting the agent of the insurer the agent of the insured also to accept the policy when written, and to waive the cancellation in this clause, and to accept a new policy in lieu of an old one. ’ ’ In the instant case, the evidence of both the agent and of Froug is to the effect that the agent could not accept the policy but that it must be submitted to Froug.
Appellant calls attention also to Commercial Union Fire Insurance Co. v. King, 108 Ark. 130, 156 S. W. 445. The court in that case said: “The notice must be given to the insured, and it should state not merely an intent to cancel, if some condition be not complied with, but it must be an actual notice of cancellation within the meaning of the policy and so unequivocal in its form that the insured may not be left in doubt that his insurance will expire on the time limited by the terms of the notice, and that the company will not be liable for any loss after the expiration of that time.”
The next case relied on by appellant is Firemen’s Ins. Co. v. Simmons, 180 Ark. 500, 22 S. W. (2d) 45. The court in this case approved the rule announced in other cases, citing the cases above mentioned, and then said: “In most of the cases coming before this court where the rule above stated had been announced and followed, there appears to have been an agreement between the insured and the agent that the agent would keep the property insured, and this agreement may be either expressed or implied from the circumstances under which the policy was issued, or from continued course of conduct of the parties; as, for instance, where the agent renews on ex-pirations and accepts notice of cancellations and issues other policies in their stead, which is either known or acquiesced in by the insured.” The evidence in the instant case not only shows no circumstances indicating an agreement on the part of the insured but both parties testify very positively that a policy would not be in effect until submitted to and approved by Froug.
Appellant then refers to National Union Indemnity Co. v. Standard Accident Co., 179 Ark. 1097, 20 S. W. (2d) 125. That case simply holds that the parties may agree to a cancellation with or without refund of unearned -premiums, but there is no agreement in this case.
Attention is also called to Home Fire Ins. Co. v. Parker, 177 Ark. 678, 7 S. W. (2d) 324:. The court said there: “We think we may safely assume, in this case, that the agent of appellant had authority from appellee to keep his property insured.” There is nothing in that case which supports the contention of appellant.
It is well settled by the decisions of this court that the provision in the policy for notice is for the benefit of the insured and may be waived by him. It is, however, equally well settled that, unless there is evidence of a waiver, the notice must be given.
It is also contended that furnishing proof of loss to the Westchester Fire Insurance Company was a ratification of the cancellation. There was no ratification. This proof was made at the suggestion of one of the adjusters of the insurance company, and Mr. Froug added: “We are furnishing this proof of loss so as to preserve the rights of the parties in interest because of the controversy with respect to liability under the policy.” The appellee did not have the Westchester policy, did not know until after the fire that it had been issued, never did receive it or accept it, but kept the policy sued on constantly and never did anything, so far as the evidence in the record shows, to indicate that he knew anything about any suggestion that this policy be canceled.
We find no error, and the judgment is affirmed. | [
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Johnson, C. J.
This proceeding is a continuation of the litigation reported ante p. 204, and reference is here made thereto. The concluding paragraph of the opinion in cause number 3459 is as follows:
“For the reason stated, cause number 3459 is reversed and remanded with directions to overrule appellees’ demurrer to appellant’s answer, and to enter a decree sustaining appellant’s plea of res judicata.”
Upon the remand of said cause number 3459 to the Pulaski Chancery Court, appellees in said cause moved the respondent, Frank H. Dodge, Chancellor, to make and enter of record in the Pulaski Chancery Court the following order, to-wit:
“On this day comes the plaintiff by its attorneys, Booker & Booker and Chas. B. Thweatt, and the defendant, though duly notified of this hearing, comes not but wholly makes default; and this cause is presented to the court upon the record of this cause, which record is copied in the transcript heretofore filed in the Supreme Court, the mandate of the Supreme Court filed herein, plaintiff’s motion for leave to plead further and plaintiff’s reply and amendment to complaint tendered with said motion, and the court finds that the mandate and judgment of the Supreme Court herein does not have the effect of denying the plaintiff the right to plead further or to deny the allegations of defendant’s answer and cross-complaint.
“It is thereupon ordered, considered, adjudged and decreed by the court that plaintiff’s demurrer to the answer and cross-complaint be and the same is hereby overruled; that defendant’s plea of res judicata be and the same is hereby sustained and held to be a sufficient plea; that plaintiff’s reply and amendment to complaint be filed herein; and that this cause take its place on the calendar for trial; that the injunction herein remain in force until the further order of this court.”
Upon the entry of the foreg’oing order this original proceeding was instituted by petitioner seeking prohibition against respondent and t© prohibit said respondent as chancellor from proceeding further in said cause save to enter a decree dismissing the complaint for want of equity. A temporary writ of prohibition was granted upon application and now comes on for final determination.
The temporary writ was rightfully awarded, and must be made perpetual because, regardless of whether our opinion in cause number 3459 is right or wrong, it is the law of the case binding upon this court and upon the chancery court to which it was remanded, and should be followed. From the paragraph of the. opinion quoted, it definitely appears that the cause was reversed with specific directions to enter a decree in accordance with the. opinion, therefore there was nothing for the chancellor to do but enter a decree dismissing the complaint for want of equity.
Gaither v. Campbell, 94 Ark. 329, 126 S. W. 1061; Walker v. Goodlet, 109 Ark. 525, 160 S. W. 399; Henry v. Irby, 175 Ark. 614, 1 S. W. (2d) 49; New England Securities Co. v. Afflick, 172 Ark. 964, 291 S. W. 100; Jeffett v. Cook, 175 Ark. 369, 299 S. W. 389.
For the reasons stated the temporary writ of prohibition is made perpetual. | [
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Butler, J.
This is the second appeal of this case on the merits. In the decree first rendered by the court, it assumed jurisdiction of an action to surcharge and falsify the settlement of John H. Vaughan, executor, but held that it had no jurisdiction to surcharge and falsify the accounts of John H. Vaughan as guardian of Mrs. Edmondson or of Mrs. Frances A. Vaughan (now Sabine), executrix and guardian in succession, on the ground that these settlements were pending and undisposed of in the probate court. This court, with some modification, affirmed that part of the decree affecting the settlement of John H. Vaughan and reversed the remainder with direction to the court ‘ ‘ to proceed without remanding the cause to the probate court to adjudge and settle the accounts of Mrs. Vaughan’s own administration.” On remand, the evidence taken in the first proceeding was considered with but little additional evidence being offered.
The salient facts developed from the evidence are stated in U. S. F. & G. Co. v. Edmondson, 187 Ark. 257, 59 S. W. (2d) 488, and no further additional facts need be stated except that on remand it developed that Mrs. Edmondson had died during the proceedings and the branch of the case affecting her proceeded under the name of Mary E. Coughlan, a sister of Mrs. Edmondson, and the executrix and sole beneficiary under the last will and testament of Mrs. Edmondson. This will had been duly probated and was introduced in evidence in the court below. There was some additional evidence relating to certain repairs on the property of the Edmondson estate which appeared as credits claimed in the settlements. This testimony was merely cumulative of testimony taken at the first proceeding, and was to the effect that the repairs were necessary to preserve the property and that the charges therefor were reasonable.
On consideration of all of the evidence adduced explanatory of the items of debit and credit on the settlement and a restatement of the same as made by the master, the court found that the Vaughans should be charged with further sums, denied certain credit items claimed, found the balance due by the Vaughans on their respective accounts as executors and guardians, and that the U. S. F. & G. Company, their surety, was liable therefor.
This decree did not wholly satisfy any of the parties interested, namely, Dr. P. F. Horan, residuary legatee, Mrs. Mary E. Coughlan, 'beneficiary under the will of Mrs. Edmondson, and U. S. F. & G. Company, surety on the bonds of John H. and Frances A. Vaughan, and each excepted to certain findings of the court below and have prosecuted their several appeals.
There are four accounts affected in this proceeding: that of John H. Vaughan as executor, of the said Vaughan as guardian, and the two accounts of Mrs. Vaughan in the same capacities. Among other items of credit disallowed was the sum of $2,898.97, commissions of John H. Vaughan as executor. The court reduced this claim to the sum of $988.88 for which credit was allowed. On this item the appellant U. S. F. & G. Company contends that the sum claimed was allowed by the probate court and construes our decision cited supra as conclusive of the correctness of the item as claimed. Without discussing in detail the various items of commission and expense claimed or setting out the order of the probate court, we do not think that a fair construction of said order sustains the contention made, nor does our decision in the former appeal conclude the trial court from determining the proper amount to be allowed, as in that respect the judgment of the probate court made no definite finding of the exact amount due as commissions. We are also of the opinion that, when all the circumstances of the case are considered, the trial court reached a just conclusion, and that the compensation allowed was reasonable for the services performed.
The court allowed Mrs. Vaughan 10 per cent, of the net income of the estate while administered by her as fees for her services as executrix, and disallowed both the credits claimed in the accounts of John'TI. Vaughan and Mrs. Vaughan as commission for services as guardian.
It is contended that the credits claimed as executrix fees were those allowed by law, and that the court erred in fixing any less sum. The case of Tiner v. Christian, 27 Ark. 306, is cited as authority for this position. In this case, however, Mrs. Vaughan was administratrix with the will annexed which fixed her compensation at “ten per cent, of the income of the estate,” by which expression “net income” was meant. James v. Echols, 183 Ark. 826, 39 S. W. (2d) 290. Any additional sum was discretionary under-the terms of the will with the court to “make allowance of such amount as will compensate my said trustee for executing this trust.” Under the evidence the court was justified in finding that the ten per cent, allowed by the will was ample compensation for the duties performed by Mrs. Vaughan.
On the question of allowances of compensation as guardian, this court has held: ‘ ‘ Commissions are allowed to a guardian for the performance of duties imposed by law; but for neglect of those duties, for mismanagement of the property * * * the law does not award compensation.” Reed v. Ryburn, 23 Ark. 47. See also Stacy v. Edwards, 178 Ark. 911, 12 S. W. (2d) 901. The court found that neither John H. Vaughan nor Frances A. Vaughan is entitled to commission as guardian for the reason that the affairs of the guardianship were grossly mismanaged by both of them. This finding of fact appears to have been sustained by the evidence, and therefore, under the authority cited, the court properly refused them compensation.
Appellant, Mary E. Coughlan, complains of the action of the court in charging the item of inheritance tax to the account of Mrs. Vaughan as guardian, the effect of which was to make such tax payable out of the half of the estate taken by Mrs. Edmondson as her dower and relieving that portion acquired by the residuary legatee. Under the provision of § 10,217, Crawford & Moses’ Digest, estates of dower are subject to the payment of this tax, whereas property held for charitable uses is exempt from its'payment, and the evidence establishes the estate of the residuary legatee was held for such uses. The court did not err in the particular claimed.
The remaining exceptions to the findings and decree of the court depend entirely on disputed questions of fact. It would serve no useful purpose to review the accounts and the testimony relating to the findings challenged, since we find that the conclusion reached by the court below is not against the preponderance of the evidence.
On the whole, it appears that the trial court has endeavored to do substantial justice to all of the parties in interest, and, as no reversible error appears, the decree is affirmed. | [
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Baker, J.
On tbe 2-7'th day of February, 1934, the grand jury of Cleburne County returned into open court an indictment charging Leonard G-ribble, the appellant, with murder in the first degree. It was alleged that on the first day of December, 1932, the appellant shot and killed Aubrey Never. The indictment was in the usual form and not questioned, as to its sufficiency, in any particular. The cause came on for trial, and on March 1, 1934, the jury returned into court the following verdict: “We, the jury, find the defendant guilty and fix his punishment at 5 years in the Arkansas Penitentiary.” The verdict was signed by the foreman and the court rendered judgment upon it on the 3d day of March, 193'4. The motion for a new trial was filed in due time, overruled and appeal has been duly granted.
The facts necessary for the discussion of the case and errors alleged and set up in motion for new trial are about as follows: On December 1, 1932, Oren Kever and Aubrey Kever, together with their uncle, Willie Southerland, went to Leonard Gribble’s place of business in Heber Springs, and immediately upon their arrival a controversy arose, and Gribble ordered them to take their truck, which they had driven to his garage, or filling station, and move it away.
Prior to that time Aubrey Kever and Leonard Gribble had had some disturbances, and at one time, fixed by different witnesses at a period from two to four years prior thereto, had gotten into a fight, and Gribble had struck Kever with a wrench. Gribble testified that almost constantly since that time he had been pursued and taunted by Kever, who was always seeking a renewal of the former difficulty; that on the occasion of the fight, when he had struck him with the ■wrench, Kever was drinking, and that he had led him away from his garage two or three times, but that Kever followed him back, and assaulted him by kicking him, and that he, Gribble, was trying to close the door of his office, or shop, to prevent Kever from entering, and was finally compelled to strike Kever with a wrench, in order to protect himself, and he had finally called officers to take Kever away. About the first of the next month he had met the two Kever brothers on the sidewalk, and that Aubrey, particularly, had tried to fight, but he (Gribble) finally got away from him; that later, Kever had come to his place of business and a Mr. Eaekley took him away on that occasion, and that Kever left threatening him with the words “I’ll get you in time”; that a short time before the killing Aubrey Kever had tried to block the highway with a truck to keep Gribble from getting by. That there were not two months in the two years from the time of the first disturbance but that Aubrey Kever came in contact with him. He had heard of the trouble Never had had with Gbrie Logan, with the. Birds, and several others; that on this occasion, the day of the killing’, when Aubrey Kever, Butch Kever and Willie Southerland drove up to his place of business, he waited until they had gotten out of the truck and walked around by the truck, and that he then went out, spoke to them, and asked what he could do for them. Aubrey asked for Fitzgerald, and, upon his answer, Aubrey said: “I don’t cafe nothing about talking to you”; that his response was, “If that’s the way you feel about it, go ahead and much obliged”; that he started then to pass between Aubrey Kever and a concrete pillar; that Kever blocked his way; that he turned and went around another way and Kever started after him; that Kever then said that he had hit him once with a wrench and wanted to know if he thought he could do that again; that he asked him to leave; that Kever did not stop but started running in; that he ordered Kever to stop; that he did not; that Kever had his hands in his pockets; that the other two, Oren Kever and Southerland, had gotten in the truck and went driving away. In the meantime G-ribble had picked up his shotgun, which was inside his office and that, when Kever refused to stop, he shot him.
'Considering the evidence as offered, it tended to show that Kever, the man who was killed, was frequently in disturbances with other people in the community; that he was somewhat persistent in trying to follow up and settle his original quarrel with Gribble, and some of the evidence is to the effect that at the time he was killed he had, perhaps, gone to Gribble’s garage to see Fitzgerald, at Fitzgerald’s suggestion, to collect from Fitzgerald some amount of money owing him by Fitzgerald, but we think that the evidence, with a fair degree of clearness, shows that Cribble did not know that that was the purpose of the visit there, and that he had a right to presume that Kever had returned for the sole purpose of renewing the old difficulties. Attention is called to this fact for the reason that it arises in one of the assignments of error set up in the motion for a new trial, which will be discussed later.
The foregoing is a sufficient, statement of the facts to permit a discussion of the questions presented to us in the motion for a new trial.
The first matter discussed in appellant’s brief is the form of the verdict: “We, the jury, find the defendant guilty and fix his punishment at five years in the Arkansas Penitentiary.” The question raised under this allegation of error arises out of the construction of § 3205, Crawford & Moses’ Digest, which reads as follows: “The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the court shall impanel a jury and examine testimony, and the degree of crime shall be found by such jury.”
The form of verdict, above quoted, does not say in express language whether the defendant is guilty of murder in the second degree or voluntary manslaughter. If the effect of it should be determined by reference to the penalty of five years in the penitentiary, then it is insisted, as we understand from appellant’s argument, that the jury might have meant a conviction for murder in the second degree, the lowest penalty for which is five years in the penitentiary. But the penalty for voluntary manslaughter is from two to seven years. The court holds that, by the omission from the verdict of a statement showing the degree of the offense, it was the intention of the jury to acquit the appellant of murder in the first and second degrees; that the mandate of the statute, above quoted, is such that, had it been the intention of the jury to convict the appellant of murder, it would have said by the verdict: “We, the jury, find the defendant guilty of murder in the second degree, and fix his punishment at five years in the Arkansas Penitentiary,” and that by the omission of the words “of murder in the second degree,” it is clear that the effect of the verdict was, first, an acquittal of murder, and, second, a conviction for the next highest offense, voluntary manslaughter.
The writer of this opinion is not in full accord with the reasoning of a majority of the court.
It must be agreed, however, by all, that upon a conviction for murder, the statute requires that the verdict of the jury shall state in express terms the degree of the offense, — that is, whether it be murder in the first degree or murder in the second degree. If acquitted of murder, then the next offense, which is included in the indictment, is voluntary manslaughter, and there is no mandate, by statute or otherwise, requiring that the jury shall state the degree of the offense upon which he is convicted, except in murder, and the general verdict, as returned by the jury in this case, is sufficient. Appellant’s case has been briefed on this point, upon the theory that the only interpretation to be placed upon the verdict must arise out of the verdict itself, and that, inasmuch as the five year sentence is affixed to it, and that is the lowest penalty for murder in the second degree, it must have been the intention of the jury to convict the defendant of murder in the second degree. Of course, if that were true, the verdict as returned could not be a basis for a valid judgment. This contention is not without authority to support it. 2 Bishop’s New Criminal Procedure (2d ed.), p. 870; Curtis v. State, 26 Ark. 439; Fagg v. State, 50 Ark. 506, 8 S. W. 829; Wallace v. State, 180 Ark. 627, 22 S. W. (2d) 395.
It therefore follows that the only conclusion that can be reached as to this general verdict, without impeaching it, and that is not our duty or obligation, must be to interpret it that the jury found the defendant guilty of voluntary manslaughter and the penalty fixed by the jury is not inconsistent with this holding.
It is upon this point only that the writer has not been in complete agueement with the other members of the court.
This construction and interpretation of the verdict, by the court relieves it of the provisions of the statute, and the alleged error'is not prejudicial.
Other questions argued for the reversal of the case is the alleged error of the court in excusing juror John Ghent, juror George Carr, and juror P. W. Davis. These are three jurors, who were excused by the court, as stated in the motion for a new trial, for what is alleged to be insufficient cause therefor. The examination of these jurors, upon voir dire, is not brought forward in the bill of exceptions. We do not know, and cannot ascertain from the transcript filed in this case, the nature or extent of the examination of these jurors, nor can we determine whether or not there was any abuse of the court’s discretion, and it must be presumed by us that the discretion of the court was properly exercised.
It is also alleged, in assignment -No. 8, that the juror, Chastain, upon his examination, stated that he was not related to any party in interest, either by blood or marriage, and that the. defendant, appellant herein, has since been informed and believes that said juror’s statement was not correct, but that he is related to the Never family, and that this fact was unknown to the defendant at the time, of the trial.
The same holding as to the examination of this juror, is proper as was stated in the matter of the three above mentioned, whom the court excused. No fact is shown in the bill of exceptions as to the examination of this juror. The bill of exceptions is entirely silent.
It is alleged also, in assignment No. 9, in the motion for a new trial, that one of the jurors, John Bettis, after he had been examined and accepted to try the cause, and had been admonished by the court not to separate himself from the others, did separate himself from the other jurors, as they filed into the jury box and were seated, and went downstairs, below the court room, in conversation with Ray E. Shelby, who had taken more than a passing interest in the trial of the case against the defendant. There is no record made of this incident; at least, it is not brought up in the bill of exceptions. It is not shown that the court’s attention to such matter was called, or whether any examination was made of it, if noticed by the court, nor is it shown that the defendant at the time, objected. We have only the statement contained in the motion for a new trial.
• An opinion as to the qualifications of jurors, and objections made after the trial, as to their fitness or eligibility, or otherwise, was handed down by us on this date, in the case of Newton v. State, ante p. 789, and it disposes of the objections to such alleged errors in this appeal.
Error is also alleged in permitting the witness, Floyd Beed, to testify over the objections of the defendant, to the effect that Fitzgerald, in the absence of defendant, had invited Aubrey Kever to Grribble’s place to collect some money said to be due him. We see no prejudice in this matter. We presume it was intended to show by this testimony that Kever went to Grribble’s place on an errand of peace and not otherwise. It is apparent that Grribble did not know this fact, and that he had a right to presume, and probably did presume, that Kever came there in a fighting mood, and with the intention only of creating a disturbance, or for a fight with the appellant. Grribble was given the advantage of such presumption, under proper instructions. At least, no question is made of any instruction given or refused, and he had the right to have that matter submitted to the jury.
It is also alleged in assignments Nos. 12 and 13 that there was error in permitting the prosecuting attorney to ask the defendant why he did not have a subpoena issued for a certain witness. We are at a loss to see how this question could be prejudicial, and there seems to be nothing from the defendant’s answer, which would indicate that it was, and also the prosecuting attorney was permitted to ask the defendant how many times he had been married. There is no showing how any prejudice could arise from the question or from the answer made. There is no implication in the question to affect injuriously his character or standing in the community, or any answer that might have been elicited that would have done so. Marriage is not a prohibited status, nor would the questions tend in any way to excite in the minds of reasonable jurors any feeling of distrust or otherwise impeach in any particular the good standing of the appellant.
It frequently happens, and trial judges soon learn, that it is sometimes more expedient to permit attorneys, in the heat of trials, to wander somewhat far afield. It may save time, expense and delay more than would the most exacting niceties and requirements if they were at tempted, oil all occasions, to be enforced. At any rate, unless some prejudicial error appears, we must yield to the sound discretion of the trial courts in such matters, where there is no affirmative showing of an abuse of that discretion, which abuse operates to the prejudice of the appellant, we cannot criticize their conduct. It follows therefore that this cause must be affirmed.
It is so ordered. | [
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Johnson, C. J.
Appellant and appellee, respectively, own and operate- motor trucks and busses for hire in this State. About 7:30 p. m., January 25, 1930, while appellant’s truck was returning to Little Rock traversing the Hot Springs Highway at a point some miles out of Little Rock a collision of appellant’s truck and appellee’s bus occurred which resulted in damages to both vehicles. This suit was instituted by appellant against appellee on January 23, 1933, to compensate the alleged damage to his truck, and on June 13', 1933, appellee answered the complaint by general denial, and in addition thereto affirmatively alleged damages to its bus in the collision through the negligence of appellant. Appellant demurred to appellee’s cross-complaint and assigned as cause that the cross-complaint reflected upon its face that the damage complained of by appellee occurred more than three years prior to the filing of the cross-complaint. The demurrer was overruled, and appellant excepted, and this is the first contention urged for reversal. The trial court committed no error in overruling the demurrer. It has long been the law in this State that a counterclaim arising out of tort, even if barred by the statute of limitations, is • available and may be employed by way of recoupment against a suit for the recovery of damages. Huggins v. Smith, 141 Ark. 87, 216 S. W. 1; Missouri & N. A. Ry. Co. v. Bridewell, 178 Ark. 37, 9 S. W. (2d) 781.
Moreover, it is immaterial that the counterclaim, appeared as an affirmative plea by appellee, as pleadings are liberally construed to effectuate justice between the parties. After the demurrer was overruled, the cause proceeded to trial, which resulted in favor of appellee. No complaint is urged as to instructions given and refused, but it is finally insisted that the court erred in permitting witnesses to testify in reference to the allegations of the cross-complaint. This contention presents the identical question presented on demurrer. Certainly, if the demurrer was properly overruled, appellee had the right to prove the allegation of his cross-complaint for recoupment purposes.
No error appearing, the judgment is affirmed. | [
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Butler, J.
This suit was begun in the justice of peace court on the account and affidavit filed by Everett Scroggins for balance of wages alleged to be due him by the Louisiana Oil Refining Corporation. A written an-' swer was filed to the affidavit in which the corporation denied that it was indebted in the sum claimed or in any sum, or that the plaintiff was ever employed by it. The answer averred that the plaintiff was employed as a track driver by one A. R. McKewen, that the corporation was not a party to this contract of employment, and that plaintiff had never performed any services for it.
The ease was tried anew in the circuit court on appeal from the judgment rendered in the justice court, which, trial resulted in a verdict and judgment in favor of the plaintiff. From that judgment is this appeal.
The amount sued for is not in dispute, hut on the trial of the case it developed that the plaintiff based his right to recover from the defendant corporation on two propositions; first, that he was an employee of the corporation and that the amount claimed was for unpaid wages, and, second, that if he was not an employee of the corporation, but in fact the employee of McKewen, the defendant was nevertheless liable because it had agreed to pay for the services then rendered and to be rendered by plaintiff. The defense interposed was, as stated in the answer filed in the justice court, a denial that plaintiff was an employee of the defendant and that defendant was not bound by any promise to pay the debt because its agent who made the alleged promise had no authority to act for and bind the defendant in that regard, and that, even though the agent might have had such authority, the oral agreement was void and in violation of the statute of frauds.
On the evidence adduced, these issues were submitted to the jury on instructions, the correctness of which is not challenged, but we are asked to reverse the judgment and dismiss the case on the ground that the court erred in failing to direct a verdict for the defendant at its request. The contention is that, if an agreement was made by a representative of the appellant to pay the salary due appellee or to thereafter become due, such agreement was required to be in writing by the statute of frauds, and, being oral, is void; that the evidence fails to show that there was in fact any such promise.
Appellant relies on ■% 4862, Crawford & Moses’ Digest, which provides that no action shall be brought to charge any person upon any special promise to answer for the debt of another unless the agreement or prom ise shall he made in writing, and signed by the party to be charged or some person authorized by him. Zimmerman v. Holt, 102 Ark. 407, 144 S. W. 222; Patten v. Robbs, 175 Ark. 784, 300 S. W. 388. The rule announced in these cases is not different from that early announced by this court in Kurtz v. Adams, 12 Ark. 174, which rule has been consistently followed in subsequent cases. Chapline v. Atkinson, 45 Ark. 67; Gale v. Harp, 64 Ark. 462, 43 S. W. 144; Jonesboro Hdw. Co. v. Western Tie Co., 134 Ark. 543, 204 S. W. 418; Becker, etc., Co. v. Parker Hdw. Co., 146 Ark. 539, 226 S. W. 177; Oil City Iron Works v. Bradley, 171 Ark. 45, 283 S. W. 362; Lesser-Goldman Cotton Co. v. Merchants’ & Planters’ Bank, 182 Ark. 150, 30 S. W. (2d) 215. The principle announced in those cases may be thus stated: Where there is a primary debt which has been antecedently contracted, the promise to pay such debt is original when based on a new consideration moving to the promisor and beneficial to him. When such is the case, the promisor comes under an independent duty of payment, irrespective of the liability of the principal debtor. This rule has been applied in a case where one agreed, in consideration of work to be done, for another to pay the promisee what was then due under her employment by the person for whom she had been working and she accepted the promisor as her debtor. Jewett v. Warriner, 237 Mass. 36, 129 N. E. 296. The rule has also been applied in a case where the defendant, being interested in effecting’ the consolidation of two newspapers, verbally agreed to pay indebtedness for printing done by the plaintiff for one of the papers as well as future indebtedness if plaintiff continued printing. Washington Printing Co. v. Osner, 99 Wash. 537, 169 Pac. 988.
In Oil City Iron Works v. Bradley, supra, the plaintiffs were employed by R. C. Houston to drill an oil well. Houston fell behind in the payment of their wages and plaintiffs notified him that they were going to quit work. An agent of the iron works told them that said works had sold Houston the drilling rig for which he owed a balance on the purchase price, and that,- if they would continue work and finish the well, the Iron Works would see that they were paid for their labor. It was contended, in a suit brought by plaintiffs against the Iron Works, that the proanise, being to pay the debt of another and verbal, was void under the statute, of frauds. The court held that these facts were sufficient to take the promise from within the inhibition of the statute, and warranted the jury in finding that the Iron Works was primarily to be benefited by plaintiffs’ continuing in the work of drilling the well and brought the case within the principles laid down in the decisions heretofore cited.
In the case at bar, there was testimony to the effect that McKewen was the general agent of the corporation which was engaged in selling its products, consisting of gasoline, motor oil, etc., in the city of Stuttgart. The corporation owned the station and retained title to all products handled by it until sold and delivered. For his services in the general supervision of the work, McKewen was to receive a certain commission out of which he was to pay his helpers. Scroggins, one of the helpers, was an experienced salesman and not only drove the truck which delivered the oil and gasoline, but it was also his duty to make sales of such products on a credit or for cash and to collect therefor. He had been engaged in that service at Stuttgart for two years or more. When sales were made on credit, he would deliver the invoice of the corporation, and, when collections were made, he would take checks made payable to the corporation and deliver them to McKewen. McKewen would indorse the name of the corporation upon these checks and deliver them to the bank. Through a period of time McKewen had been falling behind in paying his employees, and was due Scroggins and another employee a considerable sum for past-due wages. Conditions became such that these two visited the division manager of the corporation at his office, in Little Rock, who, after some conversations, the details of which are not given in the testimony, agreed that, if they would continue to work, he would see that they were paid. He told them not to take any action until the Monday following when the matter would be straightened out. On that day an auditor of the corporation went to Stuttgart and took up the matter of adjustment of the balances due the employees and found the sum of $158.05 due them. He told them to “go on back to work, and everything would be fixed up all right. ’ ’ They continued to work until McKewen was let out by the corporation and a,temporary agent was installed in his place, under whom they continued to work for a time.
Under the circumstances surrounding this transaction, there are sufficient facts to justify a finding that it was to the interest of the corporation for Scroggins to continue selling the products of the corporation and to collect therefor, for by this the corporation would be directly benefited, and the promise therefore not void as a collateral undertaking but enforceable as a primary obligation.
It is next argued by appellant that there was no testimony to the effect that appellant ever agreed to pay the back salary of the appellee Scroggins, or any future salary he might earn. In order to constitute a promise, no specific words are required. It is merely a declaration of an intention to do or to forbear from doing at the request of, or for the use of, another, and may be inferred without the use of the word “promise.” The particular language which was used by the agent as an inducement for Scroggins to return to work is that “he would see they got their money.” One of the principal definitions of the word “see” is “to bring about — to effect,” and in ordinary conversation it is used as an equivalent of the word ‘ ‘ guarantee. ’ ’ In this sense it was used by the agent of the Oil City Iron Works (Oil City Iron Works v. Bradley, supra) when he told the plaintiffs that the Iron Works “would see they got paid for their labor.”
In Housely v. Strawn Merc. Co., (Tex. Civ. App.) 291 S. W. 864, and in Lesser-Goldman Cotton Co. v. Merchants’ & Planters’ Bank, supra, it was held that an oral promise to “guarantee” was equivalent to a promise to pay a debt. Our conclusion is that there was sufficient evidence to establish a promise on the part of the agent of the corporation to pay Scroggins his wages, and that under the authority of the cases cited there was a suffi cient consideration for tlie promise to bring it from within the inhibition of the statute.
The judgment of the trial court will therefore be affirmed. | [
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McHaney, J.
Appellant sued appellee to recover damages for personal injuries sustained by her when she was attacked by a vicious bull kept and owned by appellee. It was alleged that the bull was vicious and known to be so by appellant. The record does not contain appellee’s answer, and none was actually filed, although the record shows the filing thereof was noted, and the case went to trial as if an answer had been filed, con sisting of a general denial of all the allegations in the complaint.
The undisputed evidence shows that appellee owned a hull which he kept in a pasture near the home of appellant; that on the afternoon of January 30, 1933, while appellant was picking up wood in her yard, she was attacked by the bull which had broken out of the pasture where he was kept; that she ran to a nearby tree to escape him, but the bull followed and chased her around the tree until she tried to escape to a fence, but before she could reach the fence, he knocked her down, trampled upon, gored and continued to fight her until he was shot two or three times with a .22 rifle by her daughter-in-law; that appellee came to see her that evening and made the statement that the bull was vicious; and that it had been necessary to remove the bull from the farm operated by his brother to prevent the animal from injuring the children. According to appellant (and corroborated by others present) appellee said: “I got him from my brother because he fought the children; and I brought him up here. ’ ’
At the conclusion of the testimony on behalf of appellant, appellee moved for a directed verdict, which the court' granted. Judgment was entered for appellee on the verdict as directed by the court, and the case is here on appeal.
There is no merit in the contention that the appeal should be dismissed because appellee’s answer does not appear in the record. According to the record itself, an answer was noted filed, but none was actually filed. Appellee will not be permitted to take advantage of his own neglect in failing to file an answer. The case went to trial as though an answer of general denial had been filed, and we will so treat it here.
On the. merits of the case, we are of the opinion that the court erred in directing a verdict for appellee. This was done on the ground, as stated by the court, “that the proof fails to show that this bull was of that vicious character and disposition.” But the learned trial court must have overlooked the testimony of appellant and her witnesses as to the statements and admissions of appellee regarding the vicious propensities of the bull above set out. This was sufficient to take, the case to the jury both on the vicious propensities of the bull and appellee’s knowledge thereof. It is wholly undisputed, and, even if it were, it would still be a question for the jury. This case is ruled by the decision of this court in Field v. Viraldo, 141 Ark. 32, 216 S. W. 8, where we said: “This court is committed to the rule expressed in the recent case of Holt v. Leslie, 116 Ark. 433, 173 S. W. 191, that if any one knowingly keeps a vicious or dangerous domestic animal, he is liable for injuries inflicted by such animal without proof of negligence as to the manner in which the animal was kept. We said in that case: The mere keeping of such an animal, knowing its vicious and dangerous qualities, is at the risk of the owner (except as to trespassers) and renders him liable to damages to one injured by such animal’.” As we said in the same case, “the admissions of appellant (appellee here) made to appellee (appellant here) according to the latter’s testimony were sufficient to sustain a finding that appellant was advised of those vicious tendencies of the bull. ’ ’
For the error committed in directing a verdict for appellee, the judgment is reversed, and the cause remanded for a new trial. | [
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Johnson, C. J.
To compensate an injury which was received under the circumstances hereinafter detailed, this suit was instituted by appellee, Jack T. Yarborough, against appellants, Grover C. McEachin et at., in the Saline County Circuit Court. The facts are not in material dispute and may be summarized as follows:
On and prior to June 27, 1933, appellants, as a partnership, were engaged in constructing a hard-surfaced highway and bridges incident thereto in Perry County, and appellee was employed by appellants as a stone mason to assist in building and constructing a stone bridge over Cove Creek. It was the duty of appellants to furnish the stone and other materials used in the construction of the bridge, while it-was the duty of appellee to, and he did, furnish the tools with which the stone was sized and shaped for use in the "structure. The stone employed in the construction of the bridge were obtained in the vicinity of the immediate work and were commonly known and designated as “native stone.” Appellee had been in the employ of appellants for some time prior to June 27, 1933, performing similar services, and during this period practically, if not all, the stone furnished by appellant to appellee for use in construction of bridges was obtained from a rock quarry near Stone Mountain; practically if not all this stone was of a sand stone nature and easily broken and shaped for the builder’s uses. On June 27, 1933, the supply of stone theretofore furnished being exhausted, appellants obtained a truck load or more of stones from the bed of South Fourehe Creek. The stone thus obtained from South Fourehe Creek was of a hard and brittle nature and not pliable for the uses contemplated as were the stones theretofore used, although from outside appearances this stone appeared to be of the same nature and quality as stone theretofore obtained from Stone Mountain. Appellants did not apprise appellee that this last load of stone was obtained from the bed of South Fourche Creek, and appellee assumed that these stones came from the Stone Mountain quarry. In the forenoon of June 27,1933, appellee, while engaged in performance of his duty constructing said bridge, obtained a stone, which was one stone from the load of stones theretofore furnished by appellants and obtained from South Fourche Creek, and undertook to size and shape it for the use contemplated. To effect this purpose, appellee, struck the stone with a hammer, whereupon it shattered and crushed, a fragment of which struck appellee in the eye and destroyed the sight thereof. Appellants admit that if liability exists the award is not excessive, therefore it is not necessary to state the facts in reference to the extent of appellee’s injury. The theory upon which the trial progressed is reflected in appellee’s instruction No. 1 as follows-.
“If you find from a preponderance of the evidence that the plaintiff, Jack T. Yarborough, at the time he was injured, and for some time prior thereto, was in the employ of the defendants doing stone work in the construction of a bridge, and, if you further find that it was the duty of .the defendants to furnish the stone used by the plaintiff; and if you further find that, prior to furnishing the last few loads of stone, the stone furnished by the defendants was of a sandstone or limestone formation, being of such formation that it would not shatter when struck in shaping same for use; and if you further find from a preponderance of the evidence that the last few loads of stone furnished by the defendants came from a different place and was of a different nature, being of different formation, and that said last few loads of stone were not workable and were unfit for the use for which they were intended, same being a kind of hard flint rock, and if you further find that, from the nature of said last few loads of stone, it was dangerous to undertake to break the stone or trim same into shape, and that because of its hard flinty nature when it was struck by the plaintiff for the purpose of putting it into shape, if you find it was of such nature, it shattered and small pieces thereof flew in all directions, one of which struck plaintiff in the eye and destroyed the sight thereof; and if you further find that the defendants failed to warn plaintiff that said last few loads of stone were of a different kind and failed to warn him of the dangers incident to the use of said stone, provided you find that same was dangerous, and that, in furnishing said stone and in failing to warn him, the defendants failed to exercise ordinary care; and that because thereof the plaintiff was injured as alleged, while he was in the exercise of ordinary care for his own safety and when he had not assumed the risk, that is, when the risk was not open or apparent to him in the exercise of ordinary care and was wholly unknown to him, then you are instructed to return a verdict for the plaintiff.”
No liability exists against appellants and in favor of appellee under the facts and circumstances here presented. It is a fundamental rule in the law of negligence that liability exists' when the perils of the employment are known to the employer but not to the employee, and no liability is incurred when the employee’s knowledge equals or surpasses that of the employer. 18 R. C. L., p. 548. Arkansas Smokeless Coal Co. v. Pippins, 92 Ark. 138, 122 S. W. 113. The uncontradicted testimony here shows that the employer had no superior knowledge to that of employee in reference to the nature of the stone being used, therefore had no duty to perform the neglect of which would create liability. The fact is appellee was employed in this line of work because of his superior knowledge. He was an expert stone mason of long experience. The burden of appellee’s contention is that the employer or master had the duty of examining the stone for latent defects. The application of this contention would be that the master would be required to examine each stone offered to the mason before the work progressed. Also, if necessary, the master would be required to break each stone before giving it to the mason to be sized and shaped. A more simple thing than native stone does not exist. Every one with or without wide experience knows that one native stone may be hard whereas another lying adjacent is harder or softer than the other. We conclude that no duty rested upon the master in this case to examine the stone and determine in advance whether it was hard or soft, and that no liability can be predicated upon his failure to do so.
Moreover, it has been the long-established doctrine in this jurisdiction that an employee assumes all the ordinary risks and hazards incident to his employment. Southwestern Telephone Company v. Waughter, 56 Ark. 206, 19 S. W. 575; Choctaw, O. & G. Ry. Co. v. Thompson, 82 Ark. 11, 100 S. W. 83.
The testimony is conclusive that appellee had and possessed knowledge equal to and superior to that possessed by appellants in reference to the nature, formation and uses of stone employed in the performance of his duties as a stone mason. He knew that native stone was being employed in the construction, and he knew that it was imperative to break and shape the stone for the builder’s uses. He knew, as every one else knows, that native stone is not of uniform formation and nature, and he had no right to assume that his master was better informed on this subject than he. The formation and nature of the stone employed in these bridges was one of the ordinary risks and hazards of his employment, which was assumed by him when he entered the service of the master. True, appellee suffered a very serious injury, but it is the result of a risk assumed by him, and he must bear the consequences.
The judgment is reversed, and the cause of action dismissed. | [
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McHaney, J.
Appellant, who is serving a life sentence in the penitentiary, was indicted, convicted and sentenced to ten years imprisonment for permitting a convict to escape, the charging part of the indictment being as follows: “The said defendant, Earl Decker, in the county, district and State aforesaid, on the 5th day of February, 1934, then and there having in custody one B. R. Ballard a convict who had been lawfully convicted for a felony and who had been lawfully sentenced to confinement in the penitentiary, did unlawfully, feloniously, wilfully and corruptly suffer, connive at and permit the escape of the said B. R. Ballard, against the peace and dignity of the State of Arkansas.”
The undisputed facts are that appellant, a trusty convict, was sent by the penitentiary authorities to Fort Smith to bring to the penitentiary four convicted felons in a truck. After arriving in Fort Smith, he visited with some women whose husbands were in the penitentiary and proceeded to become more or less intoxicated. He finally went to the jail, received the prisoners, locked them in the truck, and left with them. He then returned to the place where he had been drinking, secured more liquor, took the prisoners and his lady friend riding with him into the drinking establishment where they all became further intoxicated. After a time they finally left with the prisoners properly locked up in the truck and started for Little Rock. After driving some distance, he decided to return for more refreshments, and on this trip Ballard escaped by crawling through a torn place in the curtain inclosing the truck where the prisoners were kept. At the conclusion of the testimony a directed verdict of not guilty was requested and refused.
Appellant was convicted under the following statute, § 2584, Crawford & Moses’ Digest: “Any person who shall wilfully or corruptly suffer, connive at, or permit the escape of any convict sentenced to confinement in the penitentiary shall be deemed guilty of a felony, and on conviction thereof shall be punished by confinement in the penitentiary for not less than five nor more than ten years.” Several errors are assigned and argued for a reversal of the judgment and sentence, but we find it necessary to discuss only one of them, that is, that the court should have directed a verdict for appellant.
Under the above statute, the appellant must have “wilfully or corruptly” suffered, connived at, or permitted Ballard to escape in order to be guilty of the offense. It is conceded by the 'State that it was not ‘ ‘ wilfully ’ ’ done, but it is insisted that it was ‘ ‘ corruptly ’ ’ done. This is a criminal statute, highly penal, and must be strictly construed. In Atkinson v. State, 133 Ark. 341, 202 S. W. 709, construing an indictment for perjury, this court said: “It is also insisted that the indictment is defective because it does not allege that the testimony was knowingly false. The indictment alleges that it was ‘wilfully and corruptly’ false. This includes ‘knowingly,’ for the testimony could not have been ‘wilfully and corruptly’ false without being ‘knowingly’ false.” In Tallman v. State, 151 Ark. 108, 235 S. W. 389, 236 S. W. 281, the appellant had been convicted on a charge of malicious mischief for the killing of a dog, under the statute providing that: “If any person shall wilfully, maliciously, or wantonly * * * kill * * any animal,” etc., Beversing the judgment on an instruction that provided that, if the killing was unlawful and done with a deadly weapon, the law presumes it was done maliciously, this court said: “A negligent or careless killing of an animal would be unlawful, and, though done with a deadly weapon, no inference or presumption in law could be in dulged that the careless or negligent killing was wilful, malicious or wanton.”
In Jones v. State, 104 Ark. 261, 149 S. W. 56, Ann. Cas. 1914B, 302, this court held, under the statute providing* for removal of an officer from office, that the word “corruption,” as used in the statute, was intended to be used in its more comprehensive sense and not merely as relating to official delinquencies; but in Winfrey v. State, 133 Ark. 357, 202 S. W. 23, it was held that an indictment against an officei* for transporting liquor did not authorize a summary judgment of removal, because the act charged could not be said of itself to amount to “gross immorality” or “corruption.” See also McClain v. Sorrels, 152 Ark. 321, 238 S. W. 72, where it was held that a single act of drunkenness did not necessai’ily involve moral turpitude, so as to constitute “gross immorality” within the meaning of the Constitution and statute authorizing the removal of county and township officers for “gross immorality.”
One of the definitions in Bouvier’s Law Dictionary of the word ‘ ‘ corruption, ’ ’ of which the word ‘ ‘ corruptly” is the adverb, includes bribery. The word “corruptly” implies knowledge, for a thing could not be done corruptly and ignorantly at the same time. The word “wilfully” means intentionally or by design. Aubrey v. State, 62 Ark. 368, 35 S. W. 792; Tallman v. State, supra. It therefore appears to us that an act may be done wilfully without being corruptly done, but that an act cannot be done corruptly without being wilful. We are also of the opinion that the word “corruptly,” as used in the statute, means by some consideration or promise moving to the person charged. If this be the meaning of these words as used in said statute, then it is perfectly clear that appellant is not guilty. The only misconduct proved against appellant was drunkenness on that occasion. If a single act of intoxication was not sufficient to involve moral turpitude, amounting to “gross immorality,” authorizing removal from office, as held in McClain v. Sorrels, supra, then it is difficult to perceive why a single act of drunkenness on this occasion should involve moral turpitude, amounting to corruption, authorizing a sentence to the penitentiary for five to ten years.
Appellant’s conduct was highly improper and perhaps grossly negligent. But it isn’t shown that this caused the escape of the prisoner or contributed to it. The undisputed proof shows that the prisoners were locked in the truck by appellant, and that he threatened them with his pistol, warning them against any attempt at escape. The fact that one had escaped was discovered a few minutes thereafter, and he immediately began a search. He returned the other prisoners to jail and gave the alarm, and a search was instituted. The prisoner was recaptured a few days later and taken to the penitentiary.
We are therefore of the opinion that the evidence fails to establish the charge within the meaning of the statute. The judgment will be reversed, and the cause remanded for a new trial.
Smith, J., dissents. | [
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Butler, J.
The controversy involved in' this action is over the office of county examiner of Little Biver County. The appellant, L. F. Wheelis, was the county superintendent of schools of said county at the time of the passage of act No. 26 and act No. 247 of the Acts of the General Assembly of 1933.
By act No. 26, approved February 9, 1933, the office of county superintendent of schools was abolished and that of county examiner created. This act had no emergency clause appended, and therefore did not go into effect until ninety days after its passage.
On March 29, 1933, and within the ninety days from the passage of act No. 26, supra, a supplemental act was passed and approved, the same being act No. 247. This act contained an emergency clause and abolished the office of county superintendent of schools and created the office of county examiner in lieu thereof.
By § 4 of act No. 26 the county judge was authorized to select and employ a person to serve as county examiner of schools. The only restriction on the power of the county judge was that the person selected should have certain qualifications. By § 3 of act No. 247, supra, the county court was vested Avith the power of appointment but only upon the recommendation of a majority of the duly licensed teachers residing in the county.
On March 30, 1933, folloAving the passage of act No. 247, appellant Wheelis and appellee Franks filed Avith the clerk of the county court their separate and several applications for appointment to the office of county ex aminer. Each of their applications was recommended, in writing by a number of the licensed teachers. On consideration of these petitions, the county court found that “both petitioners have a majority of the licensed school teachers in the county,” and thereupon appointed appellee Franks to the position. From this order an appeal was prosecuted to the circuit court of the county, which court, upon a hearing, held that a majority of the licensed teachers had recommended the appointment of Wheelis and adjudged that he be appointed county examiner and directed that its order be certified to the county court as the order of that court, which was accordingly done.
The county court thereupon appointed the appellant Wheelis as county examiner for the term of one month at a salary of $25 and caused to be delivered to liim, as such examiner, all the records pertaining to the office. The appellant, acting upon the authority of the order of the county court, took possession of the records and entered upon the discharge of his duties as county examiner on August 11, 1933. Within the month between August 11 and September 11, 1933, a petition was circulated for the appointment of the appellee Franks which was presented to the county court after the expiration of the period for which Wheelis was appointed. Upon an examination of this petition, the county court found that Franks had been recommended by a majority of the licensed teachers of the county, and on the last-named date appointed him to succeed Wheelis. Franks qualified as county examiner under said order, and, upon the failure and refusal of Wheelis to surrender the office and records pertaining thereto, the instant action was instituted by the appellee Franks under the provisions of §§ 8332 and 8341 of Crawford & Moses’ Digest. On September 23, 1933, the circuit court entered an order adjudging the office and records thereof to the appellee, Franks, from which is this appeal.
It is conceded that the proceedings are controlled by the provisions of act No. 247, supra, and therefore the principal question is the proper construction of that act. It will be observed that neither in act No. 26 nor in act No. 247 is there a definite term fixed for which a county examiner shall serve. By. act No. 26 (§ 4 thereof) the county judge is authorized to “select and employ a person to serve as county examiner of schools and contract with him for such services for a period not to exceed two years, subject to the approval of the quorum court at its first session following the appointment”; at a salary of not exceeding $600 per annum, and by § 3 of act No. 247 the following provision is made: “The office of county examiner is hereby created. Said examiner shall be appointed by the county court upon the recommendation of a majority of the duly licensed teachers residing in the respective county,” and nowhere in this act is there any reference made to the duration of the period for which the county examiner shall serve.
It was the opinion of the trial court, in which we concur, that, no definite term of office having been fixed, it was the intent of the Legislature to vest discretion in the county court in the matter of fixing and limiting* the period of employment of the county examiner and in fixing his salary. The judgment of the circuit court on the first appeal in this case simply found that a majority of the licensed teachers had recommended the appointment of Wheelis as county examiner and adjudged that he be appointed as such by the county court without fixing any definite time in which he should serve or any salary he should receive. Therefore the county court had the discretion to fix the term and the salary, which it did, and, of course, at the expiration of that time said court was authorized to appoint another person having the required qualifications and being recommended by the requisite number of the licensed teachers.
The argument is made that the construction placed on the acts of the Legislature by the court below would make the office of county examiner and its incumbent the mere creature of the county court, subject to removal at will with or without cause, which would be destructive to the best interest of the schools. We have no way of ascertaining the legislative intent except from the language employed in the acts, and, as this is unambiguous, we must give to it its obvious meaning. It has been too often held, as now to be a matter of debate, that the Legislature is clothed by the Constitution with plenary power over the management and operation of the public schools. It is for the Legislature to declare the policy with reference to the schools, and, however much this court might doubt the wisdom of the policy declared, it has no power to alter it. Where the Legislature clothes any officer or tribunal with the authority to appoint officers for an indeterminate period, that power carries a discretion which the courts cannot invade unless such discretion can be clearly shown to have been arbitrarily exercised. 22 R. C. L. 430. It is not doubted but that, where an office having no fixed term is filled by appointment, the appointing power may fix the term, or it may be held at its pleasure. Beasley v. Parnell, 177 Ark. 912, 9 S. W. (2d) 10, and cases therein cited.
We conclude that the trial court correctly construed the act under consideration, and its judgment is therefore affirmed. | [
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JIM HANNAH, Chief Justice.
|,Kenneth R. Isom appeals a decision of the Drew County Circuit Court denying his petition for postconviction relief under Ark. R.Crim. P. 37.5. The issues on appeal are limited to claims of ineffective assistance of counsel. He was sentenced to death for capital murder and received additional sentences of life in prison for aggravated robbery and rape, sixty years for attempted capital murder and forty years for residential burglary, with the sentences to run consecutively. See Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004) (where the facts are set out in detail). Isom alleges that he received ineffective assistance of counsel at trial. We affirm the decision of the circuit court denying his Rule 37.5 petition for postcon-viction relief. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2).
Isom alleges the circuit court committed multiple errors in denying his petition. The [ ¡.decision of a circuit court granting or denying postconviction relief will be reversed only when that decision is clearly erroneous. Williams v. State, 369 Ark. 104, 107, 251 S.W.3d 290, 292 (2007). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing all the evidence, is left with the definite and firm conviction that a mistake has been made. Id., 251 S.W.3d at 292 (quoting Howard v. State, 367 Ark. 18, 25-26, 238 S.W.3d 24, 31-32 (2006)).
In considering a claim of ineffective assistance of counsel, the court hearing the petition applies the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Williams, 369 Ark. at 107, 251 S.W.3d at 292. The court must consider whether “counsel’s conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052.
To prove a claim of ineffective assistance of counsel, the petitioner must show (1) that “counsel’s representation fell below an objective standard of reasonableness,” and (2) that counsel’s particular errors “actually had an effect on the defense.” Lee v. State, 2009 Ark. 255, at 3, 308 S.W.3d 596, 600 (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052). There is a strong presumption that trial counsel’s representation fell within the wide range of reasonable professional assistance. Id. at 3, 308 S.W.3d at 600-01. The petitioner bears the burden of overcoming this presumption by identifying specific acts and
omissions that, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id. at 3, 308 S.W.3d at 601. To prevail, a petitioner must also show |s“a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 4, 308 S.W.3d at 601 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
Isom first asserts that trial counsel was ineffective for failing to investigate, interview, and present Kevin Green as a witness at trial. According to Isom, Green told Bobby Cherry and Todd Bowles that Jerry Avery had confessed to committing the crimes at issue in this case. However, Green testified at the Rule 37 hearing that Avery “never told me that he committed a murder.” He also testified that he had not told Cherry that Avery had confessed to him, and he denied knowing Bowles. Therefore, had Green testified at trial, he would not have provided evidence that Avery had confessed. Isom does not show a reasonable probability that but for counsel’s failure to call Green as a witness at trial, the result would have been different.
Isom next alleges that trial counsel was ineffective for failing to call as trial witnesses, Kevin Green, Alvin Green (Kevin Green’s father), Herman Folk, Jr., and Harold Gossin, who testified at the Rule 37 hearing that they saw Avery with a bloodied and bandaged hand after the crimes were committed. Several of the witnesses testified that Avery reported he had cut his hand at work.
Only the victims’ blood was identified at the scene. Isom has not presented evidence to show that the perpetrator cut himself in the commission of the crimes. Further, these witnesses are all related to or know Isom. The relevance of the evidence is slight.- Isom fails |4to rebut the presumption that trial counsel’s representation fell within the wide range of reasonable professional assistance. He does not show a reasonable probability that but for counsel’s alleged unprofessional errors, the result of the proceedings would have been different.
Isom also argues that trial counsel was ineffective for failing to investigate, interview, and present Treva Lamb, Yvonne Bealer (Lambert), and Ricky Isom as alibi witnesses. Lamb testified at the Rule 37 hearing that she was speaking with Isom on the phone at the time the murder and the rapes took place; however, she also stated that when she spoke to Isom they discussed the Pamela Knight murder. The Knight murder had not been discovered at the time of the commission of the crimes at issue in this case. Yvonne testified that she was at her mother’s house the evening of the murder, that Isom arrived about 7:00 p.m., and that “I answered the phone” when Lamb called. According to Yvonne, Isom was on the phone with Lamb “for at least two hours.” Ricky Isom testified that Isom arrived at their mom’s house about 5:00 p.m. the night of the murder and did not leave until “shortly after 9:00, just before 10:00.” Ricky also testified that he answered the phone when Lamb called and that Isom was on the phone with her for “some hours.”
Lamb is the mother of Isom’s child. Yvonne and Ricky are Isom’s siblings. Both Yvonne and Ricky testified to answering the phone when Lamb called. These are family members who provided conflicting testimony. The decision not to present these witnesses may have been based on their lack of credibility and the effect that would have had on the Injury. Isom fails to bear his burden of rebutting the strong presumption that trial counsel’s representation fell within the wide range of reasonable professional assistance. He fails to show that the decision not to present these witnesses could not have been the result of reasonable professional judgment.
Isom next argues that his trial counsel was ineffective in failing to present additional witnesses in mitigation. The witnesses who testified at trial were jailer Sandra Adock, Isom’s sister Tiffany Isom Nolan, his daughter Samantha Isom, and his mother Linda Isom. They testified about the good qualities that Isom has, including his love for his family, his work attributes, and that he is a productive person. According to Isom, Thomas Gathen (superintendent of Dollarway School District), Laura Owens (Isom’s aunt), David Isom (Isom’s uncle), Steve Phillips (a longtime friend), Calvin Shepherd (Isom’s stepfather), Kathy Campbell (Isom’s aunt), and Annie Isom (Isom’s aunt) would have testified that Isom was a good worker, a talented athlete, and a productive member of society. In comparing the trial testimony of those who testified at trial and the testimony proffered in the Rule 37 hearing, it is clear that the witnesses at trial provided more detailed and more specific testimony than the proffered testimony. The proffered testimony would have been cumulative. Isom fails to bear his burden of rebutting the strong presumption that trial counsel’s representation fell within the wide range of reasonable professional assistance.
Isom further argues that trial counsel was ineffective for failing to challenge the introduction of a judgment and commitment order offered to prove a violent felony as an aggravating circumstance because that judgment and commitment order also revealed 1 finonviolent felonies. The judgment and commitment order was introduced during Drew County Circuit Clerk Kay Craig’s testimony. She testified that it concerned second-degree battery, the violent felony the State was introducing as an aggravating circumstance. Craig did not mention any other felonies. The judgment and commitment order was not published to the jury, and it was not in the exhibits reviewed by the jury in deliberations. There is no evidence that the jury ever saw it or was aware of anything on the judgment and commitment order other than the second-degree battery conviction. Isom fails to show that but for the alleged professional errors, there is a reasonable probability the result of the proceedings would have been different.
Isom next argues that he was deprived of his right to counsel at the photo lineup and that the failure of trial counsel to object to the in-court identification by rape victim Dorothy Lawson deprived him of the opportunity to appeal the circuit court’s finding that the earlier out-of-trial photo lineup was not unduly suggestive. On direct appeal, this court refused to consider the allegation of an unduly suggestive photo lineup because there was no objection to the in-court identification. See Isom, 356 Ark. at 180-81, 148 S.W.3d at 273-74. Isom offers no proof of error in the circuit court’s finding that the photo lineup was not unduly suggestive. Therefore, even if counsel erred in failing to object, Isom fails to bear his burden of showing that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceedings would have been different.
Isom also asserts that trial counsel was ineffective in opening the door during closing ^argument to allow the State to refer to the 2001 murder of Cecil Boren by escaped convict Kenneth Williams. The prosecuting attorney referred to the Boren murder in arguing that the death penalty should be imposed to remove Isom as a threat to society. Isom alleges that his counsel’s prior reference to Charles Manson, and others who were serving life sentences, opened the door to the State’s reference to the Boren murder, which was committed by an escaped convict. This court held on direct appeal that “Isom was not denied a fair trial because of the Cecil Boren comment.” Isom, 356 Ark. at 183, 148 S.W.3d at 275.
Finally, Isom argues that trial counsel was ineffective for failing to object to the State’s comment during closing argument that “Bill Burton, [the murder victim] had only one judge, one jury, and one executioner. There will be no appeal for Mr. Burton.” Citing Caldwell v. Mississippi, 472 U.S. 320, 325, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), Isom argues that this communicated to the jury that it did not bear full responsibility for imposing the death penalty; rather, the appellate court would bear part of that burden. Even though there was no objection, this court addressed the issue on direct appeal and concluded that there was no “shifting of the jury’s responsibility for fixing the penalty.” Isom, 148 S.W.3d at 275. Because there was no shifting of the responsibility, Isom’s argument fails.
Affirmed.
Special Justice JAMES A. SIMPSON, JR., joins this opinion.
CORBIN, J., not participating. | [
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PAUL E. DANIELSON, Justice.
I,Appellants, Kevin R. Walters, Jacqueline W. Walters, and Payne A. Walters, appeal from the order of the circuit court granting the motion for summary judgment of appellees, James Dobbins, John Ward, and the Horatio School District (collectively, “the District”), and dismissing the Walterses’ complaint with prejudice. The Walterses had sued the District after Payne Walters was suspended from school for his actions taken while speaking at a school event. The Walterses assert three points on appeal: (1) that Payne’s speech was not plainly offensive, did not advocate illegal activities, nor was it disruptive to the educational process; (2) that schools may not retroactively censor or punish speech based on an administrator’s personal views of propriety; and (3) that Payne’s due-process rights were violated, as the punishment, expulsion, and prohibition from participating in graduation ceremonies were far more severe than necessary and violated the school’s own policies. We affirm the circuit | acourt’s order.
The facts are these. In May 2008, Payne Walters was a senior at Horatio High School and was eligible for graduation. Payne was also a speaker at Class Day, a school event, during which he played an audio clip from his cell phone. That clip was of a female student saying “Oh my gosh, I’m horny!” After the playing of the audio clip, Payne’s cell phone was taken away and given to appellee John Ward, the superintendent of the Horatio School District, and the decision was made to suspend Payne for three days, a consequence of which was that Payne was precluded from participating in his graduation ceremony. Despite pleas by Payne and his mother for some other punishment during a meeting on the morning of graduation day with Ward and James Dobbins, the principal of Horatio High School, the suspension decision was upheld, and Payne was not permitted to participate in the graduation ceremony.
On September 26, 2008, Payne and his parents filed a complaint against Dobbins, Ward, and the school district under the Arkansas Civil Rights Act, which is codified at Ark.Code Ann. § 16-123-101 to 16-123-108 (Repl.2006). They contended that Payne’s suspension was in violation of the school’s own policies, that he was denied “due process” in having the punishment inflicted, and that the punishment was in retaliation for him “exercising his First Amendment rights” and in retaliation for his father “exercising his speech and property rights under the Arkansas Constitution.” They asserted that the school board “refused to meet” and allowed and acquiesced in Payne being denied the right to participate in graduation. Maintaining that the term “horny” was not obscene, they averred that, at Rmost, Payne should have been punished by in-school punishment, such that he could have participated in graduation. The District answered the complaint, asserting that Payne was suspended for three days, thereby excluding him from participating in the ceremony, because “he played the cell phone clip containing vulgar or obscene language in his class day speech showing disrespect.”
On December 8, 2008, the Walterses filed a motion for summary judgment, in which they asserted that the District was liable under the Arkansas Civil Rights Act for two reasons: (1) the suspension was improper because it violated Payne’s due-process rights in that the school failed to follow its own procedures; and (2) the suspension was improper retaliation for Payne exercising his free-speech rights. They maintained that the use of the term “horny” was “not properly a punishable offense” under the school’s policy, and they further argued, again, that, even were the term considered profane or disruptive, the proper punishment should have been an in-school punishment that still would have allowed Payne to participate in the graduation ceremony. Additionally, they argued that Payne’s suspension violated his free-speech rights in that it was done in retaliation because the female student’s stepfather, who was a school-board member, had been in the audience when the clip was played.
The District responded and filed its own cross-motion for summary judgment. In it, the District maintained that Payne received due process, in that Payne was notified the same day of the incident, both orally and by letter, that he was suspended. It further asserted that Payne and his mother were given the opportunity to meet with both Dobbins and Ward the 14morning before graduation. During that time, the District claimed, Payne did not deny the conduct. It asserted that its actions were not a violation of Payne’s free-speech rights, where the speech was “lewd, offensive, and embarrassing to many in the audience, disrespectful to the audience, disrespectful of female students, and in particular of the female student whose voice was played in the clip,” and it maintained that this was a school-sponsored activity and that the school had a legitimate interest in setting boundaries on the vulgarity of student presentations.
A hearing was held on the cross-motions for summary judgment, during which the circuit court heard arguments from both sides. On March 23, 2009, the circuit court filed a letter opinion in the matter, finding that the Walterses’ motion for summary judgment should be denied and the District’s summary-judgment motion granted. On May 29, 2009, the circuit court entered its order, which found, in pertinent part:
Certain facts are undisputed. The student was immediately advised of his improper conduct and the action taken by the school as a result of his behavior; the parents received written notification of the school’s action and why it was imposed; the parents and student were able to meet with school officials the next day prior to the graduation ceremony.
The fundamental prerequisite of due process in this situation is the opportunity to be heard and the right to be informed of the matter pending so a person can choose for himself whether to contest the claim. Goss v. Lopez, 419 U.S. 565, 581 [95 S.Ct. 729, 42 L.Ed.2d 725] (1975). The student received this required due process. Additionally the student was not denied education as the suspension occurred after his education was completed. The only activity he was denied was participation in the graduation ceremony. There is no right to participate in a graduation ceremony under the Arkansas State Constitution. Graduation is the ceremony symbolizing achievement of an education, not the education itself.
The student’s right to free speech was not violated. A school is entitled to disassociate itself from a student’s speech to demonstrate that vulgarity is inconsistent |¿with the fundamental values of public school education. Bethel School District No. 4-03 v. Fraser, A Minor, et al., 478 U.S. 675, 106 S.Ct. 3159 [92 L.Ed.2d 549] (U.S.1986). [sic] Schools as instruments of the state may determine that the essential lessons of civil mature conduct cannot be conveyed in a school that tolerates lewd, indecent or offensive speech and conduct. Id.
It is apparent that the student’s speech was offensive and embarrassing to those in the audience as well as disrespectful to the audience and female students. The school has a legitimate interest and obligation to restrict the student’s use of offensive speech during a school sponsored function and the right to discipline such behavior.
The Defendants did not violate plaintiffs’ due process or free speech rights and have not violated the Arkansas Civil Rights Act. Plaintiffs’ Complaint is dismissed with prejudice.
The Walterses now appeal.
The Arkansas Civil Rights Act provides that
[e]very person, who, under color of any statute, ordinance, regulation, custom, or usage of this state or any of its political subdivisions subjects, or causes to be subjected, any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities, secured by the Arkansas Constitution shall be liable to the party injured in an action in circuit court for legal and equitable relief or other proper redress.
Ark.Code Ann. § 16-123-105 (Repl.2006). Thus, crucial to asserting a claim under the Act is an allegation of a deprivation of a right, privilege, or immunity secured by the Arkansas Constitution. Here, the circuit court granted summary judgment on the basis that the District did not violate Payne’s free-speech or due-process rights, and the Walterses urge this court to reverse the circuit court’s decision.
The problem, however, is that the Wal-terses have not provided this court with any convincing argument or citation to authority on which to reverse. The Walters-es cite solely | fito federal jurisprudence in support of their arguments on appeal. While federal jurisprudence can be persuasive authority, it is not binding on this court, and we have held that “a slavish following of federal precedent would render this court’s opinions merely a mirror image of federal jurisprudence, which would carry with it a certain abrogation of our duty to interpret our own state constitution and follow our own state law.” State v. Brown, 356 Ark. 460, 470, 156 S.W.3d 722, 729 (2004). In this appeal, the Walterses have failed to present this court with any convincing argument regarding when, whether, or why we should apply the federal decisions cited when deciding whether there has been a violation of one’s rights under our state constitution for purposes of our Civil Rights Act, and we will not develop an appellant’s argument for him. See Teris, LLC v. Chandler, 375 Ark. 70, 289 S.W.3d 63 (2008).
We have held that we will not consider an issue if the appellant has failed to cite to any |7convincing legal authority in support of his argument. See Johnson v. Encompass Ins. Co., 355 Ark. 1, 130 S.W.3d 553 (2003). We have further held that the failure to develop a point legally or factually is reason enough to affirm the circuit court. See id.; see also Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002) (mandate recalled on other grounds by Lake View Sch. Dist. No. 25 v. Huckabee, 355 Ark. 617, 142 S.W.3d 643 (2004) (per curiam) and Lake View Sch. Dist. No. 25 v. Huckabee, 362 Ark. 520, 210 S.W.3d 28 (2005)). Accordingly, because the Walterses have failed to present this court with convincing and developed arguments on the issues presented, we affirm the circuit court’s grant of summary judgment.
Affirmed.
BROWN, J., dissents.
. While the Walterses cite to one New York decision, it is inapposite, as it interprets New York educational laws in holding that the public-school authorities did not have the powers to bar a public-school student from graduation ceremonies under the circumstances of that case. See Ladson v. Board of Educ., Union Free Sch. Dist. No. 9, 67 Misc.2d 173, 323 N.Y.S.2d 545 (N.Y.Sup.Ct.1971).
. We recognize that the Arkansas Civil Rights Act contains the following provision, apparently relied on by the parties in making their respective arguments:
(c) When construing this section, a court may look for guidance to state and federal decisions interpreting the federal Civil Rights Act of 1871, as amended and codified in 42 U.S.C. § 1983, as in effect on January 1, 1993, which decisions and act shall have persuasive authority.
Ark.Code Ann. § 16-123-105(c) (Repl.2006). However, the plain language of the statute permits the courts of this state to examine those cases interpreting the "federal Civil Rights Act of 1871” when construing § 16— 123-105. It does not dictate that the courts of this state must always look to federal jurisprudence when determining whether a right under the Arkansas Constitution has been violated. | [
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JIM GUNTER, Justice.
|! This appeal involves an oil and gas lease that extends by production. Chesapeake Exploration, LLC; Chesapeake Exploration, Limited Partnership; and Chesapeake Energy Corp. (collectively hereinafter referred to as “Chesapeake”), as lessee, maintains that its lease with Shelia and Danny Snowden was extended pursuant to the terms of the lease itself and by the application of Ark.Code Ann. § 15-73-201 (Repl.2009). This issue was fully briefed in cross-motions for summary judgment and each side was presented at a hearing before the circuit judge. The circuit court ruled in Chesapeake’s favor, and the Snowdens now appeal that decision. In addition, Chesapeake cross-appeals the circuit court’s order denying it certain equitable relief. We assumed jurisdiction of this case pursuant to our authority in Rule 1-2(b)(1) and (6) of the Arkansas Rules of the Supreme Court to reassign any case involving an |2issue of first impression and a substantial question concerning the validity, construction, or interpretation of an act of the General Assembly.
On appeal, the Snowdens assert the following: (1) that the circuit court erred in interpreting Ark.Code Ann. § 15-73-201 as extending the term of the lease to all lands under the lease rather than just to the producing section of land; (2) that the statute should be interpreted so that all its terms are given effect; and (3) that if determined to be ambiguous, this court should construe the statute in accordance with legislative intent. On cross-appeal, Chesapeake maintains that the circuit court erred in not suspending its drilling obligations under the lease while the litigation was ongoing. We affirm the circuit court’s decision on direct appeal, and we reverse its decision on cross-appeal.
On May 19, 2008, Shelia and Danny Snowden, as husband and wife, filed a complaint in Faulkner County Circuit Court against JRE Investments, Inc., and Chesapeake. The Snowdens owned mineral interests in approximately 1250 acres of land located in Faulkner County that they had leased to JRE by agreement on February 11, 2005, for three years. The lease contained an extension provision stating that the lease “shall remain in force for a primary term of three (3) years and as long thereafter as oil, gas or other hydrocarbons are produced from said leased premises or from lands pooled therewith.” A separate provision provided:
Notwithstanding anything contained in this Lease to the contrary, it is expressly agreed that if the Lessee shall commence operations as provided herein at any time while this Lease is in force, this Lease shall remain in force and its terms shall continue so long as such operations are prosecuted, and if production results therefrom, then as long as | .^production is maintained.
The lease also provided a definition for the term “operations” that included, but was not limited to,
[c]ommencing, construction of roadways, preparation of drillsite, drilling, testing, completing, recompleting, deepening, plugging back[,] repressuring[,] pressuring[,] maintenance, cycling, secondary recovery operations, or the production of oil or gas, or the existence of a shut-in well capable of producing oil or gas.
The lease was assigned to Chesapeake on September 16, 2005. On February 2, 2008, during the primary term of the lease, Chesapeake commenced drilling the “Jimmy Roberts” 8-13 1-29H well in Section 29 of Township 8 North, Range 13 West, Faulkner County on the Snowdens’ property. Section 29 included approximately 158 acres of the land owned by the Snow-dens. On February 13, 2008, Chesapeake filed an Affidavit of Drilling Operations and Lease Extension, noting that drilling had commenced in Section 29, which extended the lease as to all lands pursuant to the lease terms and Ark.Code Ann. § 15-73-201. The Jimmy Roberts 8-13 1-29H well was completed on March 29, 2008. Two additional “Jimmy Roberts” wells in Section 29 were drilled subsequent to the completion of the first well, the last of which was completed on September 9, 2008.
In their complaint, the Snowdens alleged that Chesapeake had violated Ark.Code Ann. § 15-73-204 by failing to release all sections of property except for the section containing the Jimmy Roberts well; that Chesapeake had violated Ark.Code Ann. § 5-37-226(a) by filing an Affidavit of Drilling Operations and Lease Extension clouding the Snowdens’ title; and that Chesapeake had violated the “depth clause” provision contained injjthe lease. The Snowdens requested that the circuit court nullify the Affidavit of Drilling Operations and Lease Extension; that Chesapeake be ordered to pay double the damages the Snowdens sustained by the cloud on their title; that Chesapeake be ordered to pay treble and punitive damages pursuant to Ark.Code Ann. § 5 — 37—226(c); and that Chesapeake release all mineral interests below the depth of 100 feet under the stratigraphic equivalent of the deepest depth of all wells drilled.
Chesapeake filed an answer on June 16, 2008, denying all material allegations in the complaint. It asserted a counterclaim asking the circuit court for a declaratory judgment that by commencing the drilling of the Jimmy Roberts well within the primary term of the lease agreement, it had complied with the terms of the lease agreement. Furthermore, Chesapeake maintained that it was entitled to a declar atory judgment suspending its drilling operations during the pendency of the lawsuit.
On January 5, 2009, Chesapeake filed a motion for summary judgment, asserting that it was entitled to judgment as a matter of law based on the terms of the lease agreement and § 15-73-201. Chesapeake further requested a suspension of its drilling obligation during the pendency of the lawsuit. The Snowdens filed a cross-motion for summary judgment on February 13, 2009, asserting that they were entitled to judgment as a matter of law on the issue of liability.
A hearing on the summary-judgment motions was held March 2, 2009. On July 20, 152009, the circuit court issued a final decree in the case. The court found that Ark.Code Ann. § 15-73-201 was not ambiguous; that the lease agreement between the Snowdens and JRE, which had been subsequently assigned to Chesapeake, was valid; that Chesapeake commenced drilling within Section 29 of the leased land within the primary term of the lease; that Chesapeake completed the Jimmy Roberts well in Section 29 on August 23, 2008, so that pursuant to Ark. Code Ann. § 15-73-201, the lease continued to be in effect as to all sections for one year subsequent to August 23, 2008; and that the Snowdens were not entitled to relief based on the “depth clause” referred to in the lease. The court found that § 15-73-201(b) required a lessee to drill at least one well per year to avoid the effect of subsection (a). The court denied with prejudice the Snowdens request to nullify the lease and granted Chesapeake’s summary-judgment motion. However, the circuit court denied Chesapeake’s request for equitable relief as to suspending its drilling obligations during the pendency of the lawsuit. The Snowdens filed a timely notice of appeal from the order on July 30, 2009, and Chesapeake filed a timely notice of cross-appeal on August 19, 2009.
This case presents an issue of statutory interpretation within the context of a grant of summary judgment. This court has repeatedly held that summary judgment, although no longer viewed as a drastic remedy, is to be granted 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 |fiof law. Monday v. Canal Ins. Co., 348 Ark. 435, 73 S.W.3d 594 (2002). In this case, the parties filed cross-motions for summary judgment and did not dispute the facts. As such, the case was decided purely as a matter of statutory interpretation.
We review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Fewell v. Pickens, 346 Ark. 246, 57 S.W.3d 144 (2001). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Raley v. Wagner, 346 Ark. 234, 57 S.W.3d 683 (2001). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Stephens v. Ark. Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000). When the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id. The basic rule of statutory construction is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999).
Although organized as multiple points on appeal, the Snowdens’ argument is whether the circuit court erred in interpreting Ark.Code Ann. § 15-73-201 to grant summary judgment in favor of Chesapeake. The statute in question provides the following:
(a) The term of an oil and gas, or oil or gas, lease extended by production in quantities [ 7in lands in one (1) section or pooling unit in which there is production shall not be extended in lands in sections or pooling units under the lease where there has been no production or exploration.
(b) This section shall not apply when drilling operations have commenced on any part of lands in sections or pooling units under the lease within one (1) year after the expiration of the primary term, or within one (1) year after the completion of a well on any part of lands in sections or pooling units under the lease.
(c) The provisions of this section shall apply to all oil and gas, or oil or gas, leases entered into on and after July 4, 1983.
The Snowdens agree with the circuit court that the statute is clear and unambiguous but assert that the circuit court’s interpretation of it fails to conform to the principles of interpretation and is contrary to common-law principles regarding an implied covenant to develop. The Snowdens claim that reading subsections (a) and (b) together and in harmony with common-law principles requires a determination that production or drilling in one particular section or pooling unit within one year of the expiration of the primary term extends the lease only as to that particular section or pooling unit, not to all lands leased where production or drilling has not occurred. Because Chesapeake had only drilled in Section 29 as of the date of the summary-judgment hearing, the Snowdens maintain that the lease was extended as to that section only and that the lease has expired as to all other acreage. They cite Crystal Oil Co. v. Warmack, 313 Ark. 381, 855 S.W.2d 299 (1993), as support.
In response, Chesapeake contends that the language of the lease itself supports extension as long as there is production; that the statutory language is clear and unambiguous; that the circuit court correctly interpreted Ark.Code Ann. § 15-73-201 to extend the lease to all lands under the undisputed facts; and that the Snow-dens did not claim a breach of the common-law principle of implied covenant to develop to this case.
IsThis court has not yet had an opportunity to interpret Ark.Code Ann. § 15-73-201. In Crystal Oil Co., we recognized the passage of the statutory provision, but noted that the lease at issue was entered into prior to its enactment and was of no consequence. 313 Ark. at 385, 855 S.W.2d at 302. In Davis v. Ross Production Co., 322 Ark. 532, 910 S.W.2d 209 (1995), a case involving the breach of the implied covenant to develop, we noted the statute in passing because Davis suggested
that this court establish, as a matter of law, a specific, maximum time period of inactivity after which an oil and gas lease would be subject to cancellation for failure to drill and develop the leasehold. Davis cites ... § 15-73-201 ... wherein the General Assembly has provided that one year beyond the primary term of the lease or one year within completion of a well is a maximum time the lessee can hold by production, lands outside a unit or pool in which there has been no production or exploration. Davis suggests this court adopt a period of ten years, rather than one year, as a matter of public policy. We choose not to do as Davis requests. As we have stated many times, it is for the General Assembly, not the courts, to establish public policy.
322 Ark. at 541, 910 S.W.2d at 214 (internal citations omitted).
The lease in this case allowed for extension “as long thereafter as oil, gas or other hydrocarbons are produced from said leased premises or from lands pooled therewith” and as long as drilling operations were commenced within the primary term and “so long as such operations are prosecuted, and if production results therefrom, then as long as production is maintained.” Here, there is no dispute that Chesapeake commenced drilling on the Snowdens’ property within Section 29 prior to the end of the primary term and continued therewith until the well had been completed and began producing. Therefore, by the express terms of the lease it was extended past the primary term. The question presented to this court is whether § 15-73-201 operates to limit extension of the lease to just the area where ^production had occurred — Section 29 — or whether the lease was extended to all lands under the lease.
Applying the plain language of the statute, we must affirm the circuit court’s grant of summary judgment in favor of Chesapeake. The Snowdens claim that § 15-73-201(a) functions to limit the extension of these types of leases to only the sections or pooling units where production has occurred. They argue that the circuit court misapplied the statute in extending the lease to the entire acreage. The Snowdens are- correct that subsection (a) operates to sever producing sections or pooling units from non-producing sections or pooling units for the purposes of the extension of the lease. It is, in effect, a statutory Pugh Clause that modifies the normal language of a lease to provide that operations or production from a section or pooling unit will not hold the entire lease but, instead, only maintains the lease as to that part of the lease acreage which is actually producing. See 58 C.J.S. Mines and Minerals § 310 (2010). Consistent with a traditional Pugh Clause, subsection (a) severs producing units or sections from non-producing units or sections despite the fact that leased lands are normally considered indivisible. Id.
However, our analysis does not stop at subsection (a). The language of subsection (b) states that the section “shall not apply” where drilling has commenced on “any part of lands in sections or pooling units under the lease” within a year of the expiration of the primary term of the lease or within one year of the completion of a well on “any part of lands in | insections or pooling units under the lease.” Here, Chesapeake drilled on the Snowdens’ land in Section 29 within a year after the expiration of the primary term, and it commenced drilling and completed two additional wells on Section 29 within that year, the last well being completed on September 9, 2009. Thus, pursuant to the stat ute’s plain language, the circuit court properly granted summary judgment in favor of Chesapeake. Subsection (a) of the statute would operate to sever Section 29 — the producing unit — from the Snowdens’ other leased acreage for the purposes of extending the lease. However, by commencing drilling within a year of the expiration of the primary term, the statute unambiguously states that subsection (a) did not apply to sever the producing section from non-producing units. Therefore, the lease was extended to all lands under the Snow-dens’ lease, not just the producing section. Furthermore, Chesapeake completed its last well on September 9, 2009. Pursuant to subsection (b), Chesapeake had another year from that date to commence drilling on any section or pooling unit under the lease to continue to extend the lease to all leased lands, producing and non-producing, and prevent the operation of subsection (a), which would sever the lease as to non-producing sections or pooling units.
We note that throughout their arguments on appeal, the Snowdens refer to the implied covenant to develop. In Ezzell v. Oil Associates, 180 Ark. 802, 810, 22 S.W.2d 1015, 1018 In(1930), we discussed the implied covenant and defined it as follows:
So it may be taken as the well-settled rule in this state that there is an implied covenant on the part of the lessee in oil and gas leases to proceed with reasonable diligence in the search for oil and gas and also to continue the search with reasonable diligence to the end that oil and gas may be produced in paying quantities throughout the whole of the leased premises.
The Snowdens did not allege in their complaint that Chesapeake had breached the implied covenant. Rather, they only alleged a statutory violation. Therefore, the question of whether Chesapeake violated the implied covenant is not properly before this court, and we decline to address it.
By counterclaim, Chesapeake requested the circuit court suspend its drilling obligations under the lease for the pendency of the litigation. The trial court initially indicated an inclination to grant the relief, but in its written order, it denied the suspension of Chesapeake’s obligation. On cross-appeal, Chesapeake asserts that the circuit court erred in denying the request for equitable relief. Chesapeake maintains that due to the expense of drilling, it would be unfair to require it to proceed under its lease obligations despite not knowing whether the lease would be adjudicated valid. Because the Snowdens asserted that the lease had expired as to all lands not within Section 29, where the Jimmy Roberts well had been completed, Chesapeake asked the court to toll its obligations so that it would not have to risk drilling outside of Section 29 while the litigation process continued. Chesapeake cites several cases for support of its position, including Winn v. Collins, 207 Ark. 946, 183 S.W.2d 593 (1944).
The Snowdens respond and claim that none of the arguments made by Chesapeake [iawarrant reversal of the circuit court’s decision. Further, they submit that they never demanded that Chesapeake quit drilling in Section 29, where oil had been produced and there was no dispute that the lease was extended, but rather that they filed suit to clear title to land that they believed was no longer leased to Chesapeake. In other words, the Snow- dens claim that Chesapeake could fulfill its lease obligations by continuing to develop in Section 29.
In Winn, this court stated:
The appellants, by prematurely filing this suit, are estopped from claiming any forfeiture that might have occurred during the pendency of the suit; and the period of time from the filing of this suit until its final disposition is not to be counted against the appellees as a part of the year for the mining of the minimum of 12,000 tons of bauxite from the lease.
207 Ark. at 954-55, 183 S.W.2d at 598. Relying on persuasive authority, we quoted from Morgan v. Houston Oil Co. of Texas, 84 S.W.2d 312, 314 (Tex.Civ.App.1935):
It is well settled that when a lessor determines to forfeit or cancel an oil and gas lease, and puts the lessee on notice thereof, he cannot complain if the latter suspends operations under the contract, pending the determination of the asserted right of the lessor to forfeit or cancel.
Although Winn involved a lease to mine the solid mineral bauxite, and we acknowledged that oil-and-gas cases are often not applicable to solid-mineral situations, we applied the equitable principle despite that difference. Id. at 953, 183 S.W.2d at 597. In doing so, we found favor in the proposition that a lessee is not bound to expend money mining for minerals where the validity of the lease has been put in peril by the landowner. Id. at 953, 183 S.W.2d at 597.
We hold that the equitable principle referred to in Winn is applicable to the present case. Therefore, the circuit court’s decision on Chesapeake’s cross-appeal should be reversed. 11sHere, the Snowdens filed their complaint against Chesapeake alleging that its lease had expired as to all sections other than Section 29. Chesapeake believed its lease was still valid to all the Snowdens’ property under the lease. Pursuant to the equitable principle enunciated in Winn, Chesapeake was entitled to the equitable relief it requested because the Snowdens attacked the validity of the lease by filing suit and could not thereafter complain that Chesapeake failed to fulfill its obligations under the lease during litigation of the Snowdens’ claim. Thus, the circuit court erred in denying Chesapeake’s request to suspend its drilling obligations under the lease during the pendency of litigation.
Affirmed on direct appeal; reversed on cross-appeal.
DANIELSON, J., not participating.
WILLS, J., dissenting in part and concurring in part.
. JRE adopted the arguments of Chesapeake.
. Although the trial court referred to August 23, 2008, as the date of the completion of the last well, we note that Chesapeake provided undisputed evidence that the last well on Section 29 was completed on September 9, 2008.
. The dissent would have us interpret subsection (b) of the statute as saying "any other part” of lands under the lease. Rewriting the statute is the legislature’s responsibility, not ours.
. Again, we note the discrepancy between the facts presented by Chesapeake that the last well was completed on September 9, 2009, and the trial court’s order finding the last well was completed on August 23, 2009. | [
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COURTNEY HUDSON HENRY, Judge.
| T Appellants Brenda and Cleo Watkins appeal from the Pulaski County Circuit Court’s entry of summary judgment in favor of appellees Southern Farm Bureau Casualty Insurance Company and Farm Bureau Mutual Insurance Company of Arkansas, Inc. (collectively “Farm Bureau”). For reversal, appellants contend that the trial court erred in ruling as a matter of law that Farm Bureau owed no duty to defend or to provide coverage to Cleo Watkins in connection with a lawsuit brought against him for assault and battery. Appellants further argue that the trial court erred in concluding that they had not pled sufficient facts to proceed on their claim of bad faith. The issues in this case center on an “intentional-design” 12exclusion in a general-liability insurance policy and the question of whether the exclusion applies when the insured asserts self-defense to claims of assault and battery. We affirm the order of summary judgment on the issues of coverage and bad faith, but we reverse on the issue of Farm Bureau’s duty to defend Watkins in the underlying lawsuit.
The record reveals that, on June 7, 2006, Watkins and Scotty Joe Turner became embroiled in a physical altercation after Turner accused Watkins of causing damage to Turner’s rice crop. On July 18, 2006, Turner sued Watkins seeking compensatory and punitive damages for assault and battery. Specifically, Turner alleged that Watkins beat him with Turner’s pistol during the confrontation.
Watkins owned both a homeowner’s insurance policy and a general-liability policy issued by Farm Bureau. Upon being served with Turner’s complaint, Watkins visited Thom Beasley, Farm Bureau’s local agency manager. Beasley advised Watkins to consult attorney Benton Smith of the firm Cahoon and Smith in Jonesboro. Smith and his firm had provided legal representation to Farm Bureau in the past and were actively representing Farm Bureau in other litigation at the time of the referral. On July 28, 2006, Richie Burgin, an adjuster for Farm Bureau, interviewed Watkins about the incident. Burgin asked Watkins to describe the altercation and inquired if Watkins intended to harm Turner when he struck him. Appellant replied,
Mr. Turner drove up in his pickup, jumped out, and said get your [expletive] equipment off my property. I said let’s get in your truck and talk. He pulled a semi-automatic pistol. I felt threatened. I called him an [expletive]. He then put the pistol back in its holster.
|sHe was accusing me of damaging his crop. He was gonna show me where the damage was when I called him an unpleasant name. He put his hand back on the gun. I knocked his hand off and got the gun.
He was gonna jump me so I just hit him with it. He wanted to come back at me again, so I hit him again. I was wanting to get his attention because I was wanting him to, I, I, you know, out of fear, uh — not to cause him any harm but to stop the altercation. He said do not hit me with that loaded gun. He wanted to fight back until, uh, next thing I knowed he was getting in his truck. He tried to hit me. It is correct that I intentionally hit him to try to stop the altercation. I struck him once in the head and once in the arm. I did not want an altercation with Mr. Turner. I felt like I was defending myself, because he did have a gun.
Macey Harpole, Farm Bureau’s claims manager, communicated with Smith regarding coverage in view of the “intentional-acts” exclusion found in the homeowner’s policy and the “intentional-design” exclusion contained in the general liability policy. Harpole advised Smith that Farm Bureau would file a declaratory-judgment action, and in exchange for not filing suit, Harpole asked Smith for a letter stating that Farm Bureau did not owe Watkins a defense and had no obligation to provide coverage. Harpole and Smith had other discussions regarding coverage, and on October 8, 2006, Smith wrote Farm Bureau a letter stating that Watkins agreed and understood that his policies did not create a duty to defend and did not afford him coverage for intentional acts.
Smith represented Watkins at the trial on Turner’s complaint, and the trial court in that action instructed the jury on Turner’s assault and battery claims and on Watkins’s defense of justification. The jury returned a verdict for Turner and awarded him $500,000 in ^compensatory damages and $700,000 in punitive damages. Watkins and Turner later settled the judgment for $1,000,000.
Thereafter, Watkins filed a malpractice claim against Smith. Farm Bureau subsequently filed this action seeking a declaratory judgment that it did not have a duty to defend or provide coverage on behalf of Watkins in connection with Turner’s lawsuit. Watkins counterclaimed for coverage and for the attorney’s fees he incurred in defending Turner’s allegations, and he also presented a claim of bad faith against Farm Bureau. Farm Bureau moved for summary judgment on the grounds that both policies excluded coverage for intentional acts' and that collateral estoppel prevented Watkins from relitigating the claim of self-defense that the jury rejected in the Turner lawsuit. Farm Bureau also maintained that Watkins had not sufficiently stated a claim for bad faith.
Watkins responded that collateral estop-pel did not preclude his claims that Farm Bureau owed a duty to defend and to provide coverage and that questions of fact remained as to coverage and his allegations of bad faith. He also moved for partial summary judgment on the duty to defend. In support of these contentions, Watkins filed the affidavit of Jerry Ramsey, a law professor at the University of Montana. Ramsey opined that, based on a conflict of interest, attorney Smith had failed to ask Watkins at the trial whether he had intended to do harm to Turner, and Ramsey expressed the view that Farm Bureau had a duty to defend Watkins under both policies. The professor was also critical of Farm Bureau for not |,.-Raving manuals or guidelines to explain coverage and the duty to defend. Ramsey stated his belief that Farm Bureau’s conduct was “dishonest, oppressive, and malicious.”
Watkins also presented his own affidavit and supplemental affidavit recounting the sequence of events and the substance of his dealings with Farm Bureau representatives. He stated that Farm Bureau never advised him of attorney Smith’s conflict of interest and that he did not tell Smith to release Farm Bureau from its obligations under either policy. In addition, Watkins submitted a “Claim Department Lawsuit Worksheet” noting that Turner’s “complaint [has] been delivered to our attorney,” Benton Smith.
After a hearing on the dueling motions for summary judgment, the trial court declared that neither policy afforded coverage or obligated Farm Bureau to provide a defense to Turner’s cause of action. The trial court also ruled that Watkins failed to state a claim for bad faith. Watkins brings this appeal from the trial court’s order of summary judgment.
On appeal, Watkins focuses his arguments entirely on the exclusion found in the general liability policy. This policy excludes coverage for compensatory damages arising out of an act “by any insured that is intentionally designed to do harm to others.” On appeal, Watkins argues that the trial court erred in concluding (1) that Farm Bureau had no duty to defend; (2) that it had no obligation to provide coverage; and (3) that Farm Bureau was entitled to judgment as a matter of law on the claim of bad faith. Because this case comes to Rus from an order of summary judgment, we apply our familiar standards of review in deciding these questions.
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Gonzales v. City of DeWitt, 357 Ark. 10, 159 S.W.3d 298 (2004). On appellate review, we must determine whether summary judgment was proper based on whether the' evidence presented by the moving party left a material fact unanswered. Windsong Enters., Inc. v. Upton, 366 Ark. 23, 233 S.W.3d 145 (2006). This court views 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. Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878, cert. denied, 537 U.S. 1003, 123 S.Ct. 509, 154 L.Ed.2d 400 (2002). Where there are no disputed material facts, our review must focus on the trial court’s application of the law to those undisputed facts. Parker v. S. Farm Bureau Cas. Ins. Co., 104 Ark. App. 301, 292 S.W.3d 311 (2009). When the facts are not at issue but possible inferences therefrom are, we will consider whether those inferences can be reasonably drawn from the undisputed facts and whether reasonable minds might differ on those hypotheses. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000).
Duty to defend
Watkins argues that the intentional-design exclusion does not absolve Farm Bureau of its obligation to defend him in the Turner lawsuit because he asserted that he acted in self-jdefense.7 Watkins points out that Farm Bureau knew that he was claiming self defense from the interview with the claims adjuster that took place soon after the lawsuit was filed, wherein Watkins stated that he acted “not to cause [Turner] any harm but to stop the altercation.”
Our supreme court has been clear that an insurance company’s duty to defend is broader than its duty to indemnify. Murphy Oil USA, Inc. v. Unigard Sec. Ins. Co., 347 Ark. 167, 61 S.W.3d 807 (2001). The duty to defend arises when there is a possibility that the injury or damage may fall within the policy coverage. Id. The general rule is that the allegations of the complaint determine the insurer’s duty to defend. Id. However, the supreme court has observed that there are occasions where an insurance company’s duty to defend cannot be determined solely from the allegations of the complaint. Commercial Union Ins. Co. of Am. v. Henshall, 262 Ark. 117, 553 S.W.2d 274 (1977). Situations involving claims of self-defense in response to allegations of assault and battery fall within this category of cases, because plaintiffs cannot be expected to allege in the complaint that they were assaulted by the insured while the insured was protecting life or property. Smith v. St. Paul Guardian Ins. Co., 622 F.Supp. 867 (W.D.Ark.1985).
We are cognizant that our supreme court has held that an insurer had no duty to defend its insured against claims of assault and battery based on an exclusion that denied coverage for “assault and battery ... committed by or at the direction of the insured.” Fisher v. Travelers Indem. Co., 240 Ark. 273, 275, 398 S.W.2d 892, 893 (1966). However, unlike the case before us, the insured in Fisher did not claim that he acted in self-defense. More |srecently, in Parker, supra, we addressed an insurer’s duty to defend in similar circumstances and under an exclusion identical to the one in the case at bar. There, the insured was on his property shooting dogs that belonged to the Parkers. Mr. Parker fired a shot at the insured, and the insured returned fire, killing Mr. Parker. The bullet that struck Mr. Parker passed through his body and hit Mrs. Parker, who sued the insured for her injuries. The trial court granted summary judgment to the insurer based on the intentional-design exclusion. We reversed based in part on the following analysis:
Moreover, we believe that viewing the evidence in the light most favorable to Mrs. Parker, it could be reasonably concluded that [the insured] acted intentionally to shoot in self defense, but not necessarily with the design to do harm. Thus, there is some question on whether the facts fit within “an act ... intentionally designed to do harm to others.”
Id. at 307, 292 S.W.3d at 316. Thus, we ruled that the intentional-design exclusion did not apply if the insured acted in self defense.
By the decision in Parker, we aligned ourselves with a majority of jurisdictions which hold that intentional-act exclusions do not relieve an insurer of its duty to defend when the insured causes injury while acting in self-defense. Safeco Ins. Co. of Am. v. Tunkle, 997 F.Supp. 1356 (D.Mont.1998); State Farm Fire & Cas. Co. v. Poomaihealani, 667 F.Supp. 705 (D.Haw.1987); Transamerica Ins. Group v. Meere, 143 Ariz. 351, 694 P.2d 181 (1984); Jafari v. EMC Ins. Cos., 155 Cal.App.4th 885, 66 Cal.Rptr.3d 359, cert. granted, 172 P.3d 401, 69 Cal.Rptr.3d 95 (2007); Vt. Mut. Ins. Co. v. Walukiewicz, 290 Conn. 582, 966 A.2d 672 (2009); Deakyne v. Selective Ins. Co. of Am., 728 A.2d 569 (Del.Super.Ct.1997); W. Fire Ins. Co. v. Persons, 393 N.W.2d 234 (Minn.App.1986); Allstate Ins. Co. v. Novak, 210 Neb. 184, 313 N.W.2d 636 (1981); Preferred Mut. Ins. Co. v. Thompson, 23 Ohio St.3d 78, 491 N.E.2d 688 (1986); Vt. Mut. Ins. Co. v. Singleton, 316 S.C. 5, 446 S.E.2d 417 (1994); Stoebner v. S.D. Farm Bureau Mut. Ins. Co., 598 N.W.2d 557 (S.D.1999); Farmers & Mechanics Mut. Ins. Co. of W. Va. v. Cook, 210 W.Va. 394, 557 S.E.2d 801 (2001); Berg v. Fall, 138 Wis.2d 115, 405 N.W.2d 701 (Wis.Ct.App.1987), overruled on other grounds, Sustache v. Am. Family Mut. Ins. Co., 303 Wis.2d 714, 735 N.W.2d 186 (App.2007). Generally, these courts reason that the primary intent of an insured who acts in self defense is to prevent harm to himself, not to cause injury to another. Walukiewicz, supra; Cook, supra. Further, courts stress that persons who act in self defense do so instinctively and reactively, without deliberation, in response to provocation by another person. Walukiewicz, supra. Consideration is also given to the reasons underlying the insurance industry’s adoption of intentional-act exclusions, which is that premiums are based upon the random occurrence of particular insured events. Cook, supra. If a policyholder can consciously and deliberately control the occurrence of these events through the commission of intentional acts, the liability of the insurance company becomes impossible to define. Id. Therefore, the exclusion prevents individuals from purchasing insurance as a shield for their anticipated intentional misconduct. Thompson, supra. However, a legitimate act of self-defense is neither anticipated nor wrongful, and the risk that | Ulan insurance company bears for an insured who acts in self-defense is calculable and also minimal from a monetary standpoint. Id.
Farm Bureau argues, however, that Watkins’s reliance on self-defense is foreclosed by the jury’s verdict in the Turner lawsuit. We cannot accept this argument. As stated, the duty to defend is much broader than the duty to indemnify, and it exists if there is a possibility of coverage. Murphy Oil, supra. Clearly, the duty to defend is triggered by the nature of the claims stated by the parties in their pleadings and not by an assessment of which party will or ultimately did prevail. Walukiewicz, supra; Cook, supra; see also Henshall, supra (recognizing that a duty to defend existed while the question of coverage under an exclusion would be decided at the trial of the underlying tort claim). Common sense also dictates that the duty to defend must be gauged in light of the circumstances that exist before the underlying case is tried.
Here, Watkins informed Farm Bureau early of his claim that he acted in self defense. Because the duty to defend is broad and there existed the possibility that injury or damage may fall within the policy coverage, Farm Bureau was obliged to defend Watkins in the Turner lawsuit. The trial court thus erred in concluding as a matter of law that Farm Bureau did not have a duty to defend. Therefore, we reverse and remand for the trial court to award an appropriate attorney’s fee for Watkins’s defense of that suit.
In Coverage
Watkins next argues that the trial court erred by granting summary judgment on the coverage issue because a question of fact remains as to whether he acted in self defense. In response, Farm Bureau maintains its argument that Watkins’s claim for coverage is barred by collateral estoppel based on the jury’s verdict that Watkins’s actions were not justified. We must agree that collateral estoppel applies to the issue of coverage.
The doctrine of collateral es-toppel, or issue preclusion, bars the reliti-gation of issues of law or fact actually litigated by the parties in the first suit, provided that the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Bradley Ventures, Inc. v. Farm Bureau Mut. Ins. Co. of Ark., 371 Ark. 229, 264 S.W.3d 485 (2007). The following elements must be present in order to establish collateral estoppel: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) the issue must have been determined by a final and valid judgment; and (4) the issue must have been essential to the judgment. Id.
In this case, it is Farm Bureau, the plaintiff, who is asserting collateral estoppel to foreclose Watkins, the defendant, from litigating an issue that Watkins previously litigated unsuccessfully in the Turner lawsuit. This is referred to as the offensive use of collateral estop-pel. Riverdale Dev. Co. v. Ruffin Bldg. Sys., Inc., 356 Ark. 90, 146 S.W.3d 852 (2004). The supreme court has noted that the offensive use of collateral estop-pel is more controversial | ^than its traditional defensive use, but the court has held that it should be available in limited circumstances. Bradley, supra. A trial court has broad discretion to determine if it should be applied. Riverdale, supra. A trial court should not allow the application of offensive collateral estoppel if it would be unfair to the defendant. Johnson v. Union Pac. R.R., 352 Ark. 534, 104 S.W.3d 745 (2003). The offensive use of collateral estoppel may be unfair (1) where the defendant in the first action is sued for nominal damages and thus may not have had great incentive to defend vigorously; (2) where the judgment relied upon as a basis for collateral estoppel is itself inconsistent with one or more previous judgments in favor of the defendant; and (3) where the second action affords the defendant procedural opportunities unavailable in the first action that could cause a different result. Id.
The elements of collateral estoppel are present in this case, and Watkins had a full and fair opportunity to present his claim of self-defense in the underlying jury trial. The jury, however, found that he was the aggressor or that his actions were not otherwise justified. Because appellant had his day in court, we perceive no unfairness to Watkins arising from the application of collateral estoppel. Accordingly, we affirm the trial court’s grant of summary judgment on this issue.
Bad faith
As his final point, Watkins asserts that his bad-faith claim should have gone to trial. He contends that Farm Bureau acted in bad faith when Harpole threatened to file a declaratory-judgment action unless Smith wrote a letter stating that there was no coverage or |1sa duty to defend. Watkins also contends that Harpole’s communications with Smith constituted a conflict of interest according to the Arkansas Rules of Professional Conduct because Smith and his firm represented Farm Bureau in other litigation. As further evidence of bad faith, Watkins refers to Farm Bureau’s failure to separate its investigation of claims from issues of coverage and its lack of policy manuals explaining how coverage issues are to be handled.
The supreme court has defined “bad faith” as dishonest, malicious, or oppressive conduct in order to avoid a just obligation to its insured, carried out with a state of mind characterized by hatred, ill will, or a spirit of revenge. State Auto Prop. & Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999). The tort of bad faith does not, however, arise from a mere denial of a claim; there must be affirmative misconduct. Selmon v. Metro. Life Ins. Co., 372 Ark. 420, 277 S.W.3d 196 (2008). Mere negligence or bad judgment is insufficient as long as the insurer is otherwise acting in good faith. Id.
The supreme court has held that nightmarish red tape, an abrupt attitude of an insurance representative about higher premium costs following cancellation, and confusion over the referral process did not amount to bad faith. Am. Health Care Providers v. O’Brien, 318 Ark. 438, 886 S.W.2d 588 (1994). In another case, an insurance company’s delay of three months to investigate a claim did not rise to the level of bad faith. Reynolds v. Shelter Mut. Ins. Co., 313 Ark. 145, 852 S.W.2d 799 (1993). The supreme court also found no substantial evidence of bad faith when, among other things, the insurance company refused |14to pay for certain items because they had been discarded after an adjuster told the insureds that it was permissible to discard them. State Auto Prop. & Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999).
On the other hand, the supreme court has found bad faith where an insurance agent lied to the insured in stating that there was no coverage. S. Farm Bureau Cas. Ins. Co. v. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996). Bad faith was also found where a claims representative engaged in aggressive, abusive, and coercive conduct, which included the conversion of the insured’s vehicle. Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992). A carrier’s intentional alteration of insurance records to avoid a bad risk also amounted to bad faith in Employers Equitable Life Ins. Co. v. Williams, 282 Ark. 29, 665 S.W.2d 873 (1984).
In the case before us, we conclude that the trial court did not err in granting summary judgment to Farm Bureau on the question of bad faith. Turner sued Watkins for assault and battery, and based on the nature of those claims, Farm Bureau took the position that the intentional-design exclusion relieved it of its obligations to Watkins under the policy. Although Watkins claimed self-defense, Farm Bureau’s position was not unreasonable, as Parker, supra, had not been decided and because there is a split of authority concerning the application of the exclusion when the insured asserts self-defense. Thus, Farm Bureau’s communications with Smith do not amount to bad faith because an insurer’s refusal to pay a claim cannot constitute wanton or malicious conduct when an actual controversy exists with | ^respect to liability under the policy. Farm Bureau Ins. Co. of Ark., Inc. v. Running M Farms, Inc., 366 Ark. 480, 237 S.W.3d 32 (2006). The fact that Farm Bureau also expressed its willingness to file a declaratory-judgment action for a court to resolve this undecided issue does not rise to the level of bad faith either, in that we have recognized that Arkansas statutes clearly provide for the initiation of a declaratory-judgment action against the insured even before the underlying action is resolved. Parker, supra. In terms of a conflict of interest, the rules of professional conduct apply to attorneys, not insurers, and it appears to us that the gravamen of Watkins’s complaints lies in Smith’s actions, whose conduct will be judged in the malpractice suit. We also cannot say that Farm Bureau’s purported lack of proper internal procedures can be characterized as affirmative misconduct carried out with hatred, ill will, or a spirit of revenge. For these reasons, we uphold the order of summary judgment on the bad-faith claim.
Affirmed in part; reversed and remanded in part.
GLADWIN and GLOVER, JJ„ agree.
. From this point forward, we will refer to appellants solely as "Watkins.”
. Farm Bureau also named Turner as a defendant in this case. On Farm Bureau’s motion, the trial court dismissed Turner from the litigation.
. A minority of courts take an opposing view on the question. Cases expressing both viewpoints are collected in James L. Rigelhaupt, Jr., Annotation, Acts in Self-Defense as Within Provision of Liability Insurance Policy Expressly Excluding Coverage for Damage or Injury Intended or Expected by Insured, 34 A.L.R.4th 761 (1984). | [
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M. MICHAEL KINARD, Judge.
| ,This is an appeal from the circuit court’s grant of a petition for adoption by the minor child’s stepfather, Josh Heckel. Appellant, Jesse Stickels, is the biological father of the minor and did not consent to the adoption. Appellant asserts the following points for reversal: (1) the trial court erred in granting the appellees’ motion under Arkansas Rule of Civil Procedure -60 to set aside its order denying the adoption petition, (2) the trial court erred in granting the appellees’ adoption petition without appellant’s consent, and (3) the trial court erred in denying appellant’s motion for contempt. We find merit in appellant’s first point and therefore reverse the order granting the adoption petition.
Appellant and appellee Jessica Heckel were divorced by decree entered May 23, 2003. There was one child, J.S., born of the marriage on September 12, 2001. Pursuant |ato the parties’ child-custody and property-settlement agreement, which was incorporated by reference into the divorce decree, Jessica was to have custody of the minor child, with appellant receiving visitation. For two years following the entry of the divorce decree, visitation was to be in Garland County, not to exceed seven consecutive days per visitation, and with appellant giving Jessica at least thirty days’ notice of his proposed visitation dates and times (which were subject to her approval). After two years, the parties were ordered to alternate major holiday visitation and appellant was to have two consecutive weeks of visitation in the summer. Appellant was ordered to pay monthly child support of $350 through the Registry of the Garland County Circuit Court. He was also ordered to reimburse Jessica for one-half of the insurance premiums for the minor child. The parties were ordered to be equally responsible for all medical expenses not paid by medical insurance.
Jessica Heckel married appellee Josh Heckel on December 27, 2003. They filed a petition for adoption of J.S. on December 19, 2006. In the petition for adoption, they alleged that appellant had “lost his right to consent to the proposed adoption in as much as he has failed significantly without justification cause [sic], to communicate with the child for a period of almost twenty (20) months or to provide for her care.” Appellees asked that appellant’s parental rights be terminated pursuant to Arkansas Code Annotated section 9-9-220(c)(3)(i) and/or section 9-9-220(c)(3). Appellant filed a response to the petition |sfor adoption and denied the allegations regarding failure to maintain contact or to provide for the minor child’s care.
In a January 28, 2008 order, the circuit court denied appellees’ petition for adoption. The court stated that, while Josh “is a good person, able to parent, and has a strong bond with the child,” the child’s biological father (appellant) had not consented to the adoption. Citing Arkansas Code Annotated section 9-9-220(c)(l) and (c)(2), the court found that Jessica was not permitted to proceed with the adoption because appellant met the statutory rehabilitation requirements, “in part, by bringing his support payments substantially into compliance and by effectively being prevented from establishing a relationship.” Therefore, the petition for adoption was denied.
Appellees filed a motion for relief from judgment or for reconsideration on February 28, 2008, and an amended motion for relief from judgment on March 19, 2008. In the amended motion, appellees contended that one of the factual findings in the court’s order — that appellant had met the statutory-rehabilitation requirements by bringing his support payments substantially into compliance, making adoption without his consent impossible — was “incorrect and wholly against the facts set out at the hearing.” The motion went on to assert that, following the filing of the petition for adoption, appellant paid only $500 during the next three months, allegedly bringing him from being $2350 behind in payments to being $3350 behind. Pursuant to Rule 60(a) of the Arkansas Rules of Civil Procedure, appellees requested that the court vacate its previous order and grant |4the adoption. On April 15, 2008, the court entered an order vacating its previous order “pending a hearing on the fact allegation raised being that the Court erred in its conclusion that Respondent [appellant] in this case had rehabilitated pursuant to Ark.Code Ann. § 9 — 9—220(c)(1)(C) and that the error constitute[s] a miscarriage of justice.” According to the court’s docket, additional evidence was submitted in the form of the results of appellant’s drug test, and an additional hearing was held June 17, 2008.
On August 7, 2008, the circuit court granted appellees’ petition for adoption, finding as follows: appellant failed to make substantial payment toward the child-support arrearage as contemplated in § 9-9-220(c)(1)(C) inasmuch as he paid the total sum of $500 in support during the three months following being notified of the petition to adopt; that appellant was in arrears in the payment of this support when notified of the petitioners’ intent to adopt on January 4, 2007, by service of the petition. The court specifically reversed its earlier finding that appellant had brought support substantially into compliance. The court found that appellant was in fact accruing an additional arrearage after the filing of the petition and that the single $500 payment made after it had been filed would first go to current support owed, and only excess or additional payments would apply to the arrears. The court granted the petition for adoption. Appellant filed a motion for a new trial, which was denied. Appellant filed a notice of appeal on October 17, 2008.
| ¿Regarding his first point, appellant argues that granting appellees’ motion under Rule 60 of the Arkansas Rules of Civil Procedure was prejudicial error. Rule 60(a) provides as follows:
(a) Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.
Here, the circuit court granted appellees’ motion under Rule 60(a) based on an erroneous finding of fact in its original order. As explained below, this was error.
Rule 59 of the Arkansas Rules of Civil Procedure provides that a new trial must be made by motion filed no later than ten days after entry of the judgment or order. One ground upon which a new trial may be granted is that the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law. Ark. R. Civ. P. 59(a)(6). The time for filing a motion for a new trial under Rule 59 is not later than ten days after the entry of the judgment. Ark. R. Civ. P. 59(b). Our supreme court has stat-' ed that motions should be liberally construed, and that courts should not be blinded by titles but should look to the substance of motions to ascertain what they seek. Slaton v. Slaton, 330 Ark. 287, 293, 956 S.W.2d 150, 153 (1997). We believe that a Rule 59 motion for a new trial — not a motion under Rule 60 — is the relief appellees were seeking in this case. Appellees’ failure to file their motion within ten days means that the trial court was without jurisdiction to enter the subsequent order.
| fiOur supreme court has clearly stated that “Rule 60 may not be used to breathe life into an otherwise defunct Rule 59 motion.” United S. Assur. Co. v. Beard, 320 Ark. 115, 119, 894 S.W.2d 948, 950 (1995). In Jackson v. Arkansas Power & Light Co., 309 Ark. 572, 832 S.W.2d 224 (1992), our supreme court held that the appeal was untimely because the appellant’s “Motion to Vacate Judgment” was in the nature of a motion for a new trial under Rule 59, not a motion “to prevent a miscarriage of justice” under Rule 60, and it was not filed within ten days. The motion at issue in that case reargued the evidence and stated that the judgment should be vacated “because it is contrary to the facts, the law, public policy and is clearly contrary to the preponderance of the evidence.” The appellate court wrote:
Nor can we agree with Jackson that his motion to vacate is, in reality, a Rule 60 motion to prevent a miscarriage of justice. Were we to interpret the term “miscarriage of justice” expansively to embrace all grounds under Rule 59, Rule 59 would have no independent meaning.
Id. at 573-74, 832 S.W.2d at 225.
Appellees contend that the circuit court properly corrected a mistake in the original order to prevent a miscarriage of justice. They cite Shipp v. Shipp, 94 Ark. App. 351, 230 S.W.3d 305 (2006), for the proposition that “[a] trial court is not permitted to change an order to provide something that in retrospect should have been done but was not done.” Appellees attempt to distinguish their case by arguing that the circuit court in this case did not add or change anything in the terms of his order — “he simply saw an error in his findings of fact (which affected his conclusions of law) and corrected it in order to prevent 17a miscarriage of justice.” Such a conclusion tends to rationalize appellees’ argument without evidentiary foundation. Appellees further state that there was no need for a new trial or hearing in this case; thus, Rule 59 relief was not appropriate. However, the fact that the hearing had been conducted and all the evidence necessary to render a ruling was present in the record is of no consequence. Even a Rule 59(a)(6) motion for a new trial cannot be used to bring into the record that which does not otherwise appear in the record. Slaton, 330 Ark. at 294, 956 S.W.2d at 154.
We disagree that this case falls under Rule 60. Because the appellees’ motion for reconsideration was in fact a motion for a new trial under Rule 59, the motion was not timely because it was not filed within ten days of the entry of the order denying the adoption petition. Therefore, the circuit court was without jurisdiction to enter the August 2008 order granting the adoption petition and that order is reversed.
Appellant’s second point is that the trial court erred in granting the appellees’ adoption petition without his consent.' Because we reverse the grant of the adoption petition on the grounds set out above, we need not address appellant’s second point.
Appellant’s third point is that the circuit court erred in denying his motion for contempt when evidence of denial of appellant’s numerous requests for visitation in knowing violation of the trial court’s visitation order was not only uncontrovert-ed, but also, in fact, admitted by appellee Jessica Heckel. The contempt finding is contained in the January 2008 order, which was not appealed from within the applicable thirty-day Rperiod. Ark. R.App. P.-Civ. 4(a); Holifield v. Mullenax Fin. & Tax Advisory Group, Inc., 2009 Ark. App. 280, 307 S.W.3d 608 (pointing out that a finding of contempt is generally a final, appealable order). Therefore, we are without jurisdiction to consider appellant’s argument regarding the contempt finding.
Reversed.
VAUGHT, C.J., and HART, J., agree.
. The case was filed in the probate division of Garland County Circuit Court and styled "In the Matter of the Adoption of [J.] Heckel, a minor.” The domestic relations case and the probate case were subsequently consolidated. | [
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JIM GUNTER, Justice.
[[Appellants, Mike Carr, Michael Carr, C.L. Carr, Jr., C.L. Carr, and Tahoe Gaming, LLC, appeal a jury verdict in favor of appellees Stewart and Pruett Nance. Appellants argue that the circuit court erred in (1) denying their motion for judgment notwithstanding the verdict and (2) giving a jury instruction regarding punitive damages. Appellees cross-appeal the court’s order of remittitur that reduced Stewart Nance’s compensatory damages from $400,000 to $233,707.42. This case involves an issue of first impression, of public interest, and needing clarification and development of the law. Therefore, we have jurisdiction pursuant to Ark. Sup. Ct. R. 1 — 2(b)(1), (4), and (5). We affirm on direct appeal and reverse on cross-appeal.
In a complaint filed November 2, 2005, appellees filed suit against appellants, alleging [ 2that on September 9, 2005, appel-lees were riding all-terrain vehicles (ATVs) on property owned by Westek Corporation, Inc., in Newton County. The property was the former site of the Dogpatch theme park. Mike Carr, believed to be an owner or agent of Westek, had spoken to the plaintiffs and was aware of their presence on the property. As Pruett was driving down a defined road, he drove into a steel cable that was strung between two trees. The cable struck Pruett in the throat, and he was jerked off the ATV. The complaint alleged that appellants had placed the cable, which was not marked by flags or any other markings, across the road and that the cable was placed in such a position and height that it could only be designed to injure a person driving on the road. Appellees contended that appellants had acted in willful and wanton disregard for Pruett’s safety, that appellants had created a hazard on the property that was not open and obvious and that created an unreasonable risk of harm, and that appellants failed to warn Pruett of the danger. Because appellants knew or should have laknown that such conduct would cause injury, and the conduct proximately caused damages to appellees, appellees sought compensatory and punitive damages for the personal injuries suffered by Pruett, medical expenses, and lost wages. Appel lants answered and alleged that appellees were trespassing on the property in Newton County after having been given notice not to do so. Appellants pled the affirmative defense of comparative negligence.
A trial was held in Newton County on September 16-17, 2008. The relevant testimony presented at trial included the following. Pruett Nance testified that on the day of the accident, he was with his dad, Stewart, and his girlfriend, Jessica Voros, and that they drove four-wheelers over to the Dogpatch property. Pruett testified that when they approached the property, he let his dad go ahead of him because his dad had to talk to the caretakers of the property and get permission from them to ride on the property. Stewart began talking to Mike Carr, and Pruett and Jessica drove around the gravel parking lot and waited. Pruett testified that a teenager on a moped was also in the parking lot. Pruett finally made eye contact with his dad, and his dad let him know that it was okay to ride around the property, specifically toward the train bridge, because that was the direction they usually went. Pruett testified that he and Jessica headed south and then stopped at a place called “kissing rocks.” While stopped, he saw the boy on the moped turn and go up a hill and then come back down. After a few minutes, Pruett and Jessica headed up the same hill on an asphalt road toward the highway. Pruett testified that he was going up the hill through a grove of trees, looking toward the highway, when he saw a cable about two feet in front of him. [4The cable had no flags or markings on it. He said he had no time to react and that he drove right into it. Pruett testified that he was knocked out for a split second, and when he woke up, he was looking at the sky. He rolled over onto his hands and knees and could tell something was wrong because he could not breathe and could not move his head or neck without severe pain. Pruett stated that he was bleeding a lot, coughing, and had a sensation like he was choking.
Pruett recalled a van ride into town, where an ambulance met him and his father, but did not remember a helicopter taking him to Springfield. He testified that he woke up in a hospital in Springfield and could not move. He was wearing a neck brace and had undergone surgery on the back of his neck. He could not speak for months but was finally able to whisper in the spring of 2006. He testified that his voice is getting better but that he runs out of breath quickly and cannot exert himself for very long. He also testified that he cannot move his head very much and that he has problems with gagging and coughing while eating.
On cross-examination, Pruett testified that he was wearing a helmet when they drove over to the Dogpatch property, but when he got there he took his helmet off. He also acknowledged that the manufacturer’s recommendation was that there not be a passenger on the four-wheeler. He stated that he knew there were some clean-up and construction activities in progress on the property and that the owners or caretakers of the property were concerned with vandalism and some trespassing incidents that had occurred. On redirect, Pruett stated that he had previously overheard a conversation between his dad and Mike Carr, |fiand Carr had told his father that it would be “fine” if they came on the property and asked that they check in with him so he would know they were there.
Jessica Voros testified that, on the day in question, she was riding on the back of Pruett’s four-wheeler. She testified that she saw the boy on the moped a couple of times, but that she never saw him with a cable or wire rope in his hand. She testi fied that when the accident occurred, she first saw the cable strung between two trees when they were about a foot away from it. She testified that she woke up after hitting the cable and saw Pruett throwing up blood, so she ran to get his dad. She stated that she saw Mike Carr arrive at the.scene along with the young man on the moped. She testified that she had bruises, a black eye, a busted lip, and scratches everywhere. She stated that when they hit the cable, Pruett’s head hit her head, and she hit her head on the concrete.
Wes Cyrus, Pruett’s cousin, testified that in May 2005, he was riding four-wheelers on the Dogpatch property with some other family members, including several younger children. He stated that as they were leaving the park, they were stopped by a man and a younger-looking kid who was pointing a shotgun at them. Cyrus stated that they were held there for two hours until the police showed up and that the men explained that they had problems with trespassers and vandals on the property.
Dean McKnight, a friend of the Nances, testified that Stewart called him the day after the accident and asked him to pick up his four-wheeler from the scene of the accident and to take some pictures of the area around where the accident occurred. He testified that some | (¡brush had been piled up recently and that dirt was being spread over the paved road where the accident occurred. He also testified that he had previously used cable to barricade roads, and on cross-examination, he testified that he believed it was an acceptable method for creating a barricade across a road. On redirect, he clarified that to be safe, some kind of reflecting metal or caution tape should be put on the cable to indicate its presence. He also testified that hanging a cable “neck high to a four wheeler” would be dangerous.
Stewart Nance testified that his nephew, Wes Cyrus, told him what happened in May 2005 and that some time after that he met Mike Carr, the person who had stopped Cyrus. Cyrus told Stewart that Mike had acknowledged that the Nances were not the vandals they were looking for and that they could come back under certain conditions, namely during the daytime with notice or permission. Stewart testified that in June, he introduced himself to Mike and asked if they could visit the property during the day with his permission. Stewart stated that Mike told him they could. Mike also told him a couple of times that he was having problems with trespassers and that he would police the property himself if necessary. Stewart testified that he returned to the property several times, and each time he spoke to Mike Carr and got permission to be on the property.
Stewart testified that on the day in question, he, Pruett, and Jessica had driven over to the property and parked in the parking area, whére he spoke to Mike Carr and asked for permission for them to ride. According to Stewart, he and Mike had a very brief conversation, during which Mike told him that they had done quite a bit of work near the old entrance, and |7if he and his son wanted to look at anything new, that was where they should go. Mike did not say anything about a hazard on that part of the property. Stewart also testified that he saw Michael Carr, Mike’s son, get on the moped. At some point, Stewart testified, he indicated to Pruett that they had permission and that he could go on. A few minutes later, Stewart got on his four-wheeler and proceeded in the direction Pruett had gone, but Stewart stopped to look at some of the bulldozing that had been done, and Mike Carr pulled up beside him in his van. Stewart testified that he and Mike then both proceeded to the swinging bridge, where they were having a pleasant conversation, until he heard a girl screaming. He could not see her because she was in a grove of trees, but as she got closer he heard her screaming his name. He quickly proceeded down the road on his four-wheeler, and as he came around the corner, he saw Pruett on all fours. Pruett’s four-wheeler was up by the highway against some trees where a fence had stopped it.
Stewart testified that when he got close, he saw the cable, which he estimated to be a half-inch-wide cable. He testified that there were no markings or a sign on the cable, which was strung over a paved, well-defined path, and that it was not strung at the boundary of the property. He testified that he later determined the height of Pruett’s injury and found that it was fifty-one or fifty-two inches off the ground. He testified that at that height, a cable would not stop a four-wheeler, as the handlebars are usually forty-two or forty-three inches in height. He acknowledged that he had used cables to block a path or a road on his property by placing the cable at a height designed for a vehicle to run into it and by marking the cable so others can see it.
hStewart testified that when Mike Carr arrived on the scene, he was admonishing his boys for not putting a flag on the cable and telling them to put flags on the other cables. Mike apologized and said that they should have had a flag on it. Stewart explained that they put Pruett in Mike’s van and met an ambulance in Harrison, and Pruett was then transported to the emergency room. According to Stewart, the doctor told him that Pruett’s trachea had been severed and had retracted down into his lungs, but the medical staff was able to secure it and stabilize him for transport. Stewart stated that he drove himself to Springfield, where Pruett was taken by helicopter. The doctors told Stewart that not only was Pruett’s trachea severed, but his esophagus was severed as well. Pruett was kept in surgery most of the night, and a few days later, he also underwent surgery to repair his spine. Stewart explained that Pruett had to use a suction device and a feeding machine during his recovery and that Pruett’s mother, who lived out of state, stayed with them for two months to help him care for Pruett. Stewart stated that Pruett still has problems with breathing and has limited movement in his neck. He testified that he has been responsible for Pruett’s medical bills, which had so far totalled $233,000. On cross-examination, Stewart testified that he did not think Mike Carr had intended to hurt Pruett but that he had set a trap for Pruett. He testified that he found it implausible that a sixteen-year-old boy (meaning Michael Carr) hung the cable just because he did not know any better.
Michael Carr testified that he began work at the Dogpatch property in May 2005. He testified that he and his dad both volunteered to help his uncle, C.L. Carr, clean up the |property, and that his dad was in charge of the project and hired several workers. He stated that they had problems keeping people off of the property and that he and his dad both spent time providing security for the property. Michael agreed that most of the problems came from four-wheelers coming onto the property, and he also agreed that the cable that injured Pruett was over a blacktop road in a grove of trees and not on the property boundary.
Michael testified that he recalled the incident in May 2005 involving Wes Cyrus, but he denied pointing a shotgun at him. He testified that they were not using guns to protect the property, but that he was authorized to do things like hang the cable across the road as an agent of the property owner. He testified that he carried the cable to the location on his moped and strung the cable across the road. He recalled the Nances being on the property that day but denied that he passed Pruett and Jessica while they were stopped at “kissing rocks.” According to Michael, he put the cable up just seconds before Pruett ran into it. He was coming down the hill on his moped when Pruett and Jessica were going up the hill, but he testified that he had no time to warn them about the cable. He testified that he did not know that the cable was going to harm Pruett, as the cable was at waist height and he believed that it would be level with the four-wheeler.
Michael testified that when he pulled up to the scene of the accident, his dad and Stewart were putting Pruett into the van. He testified that he did not remember his dad yelling at him about putting flags on the cables. He also testified that he could not reconcile his statement that he hung the cable at three feet with the fact that it made no contact with |inthe four-wheeler. He acknowledged that he knew the cable was not marked with flags, that the cable was not at the boundary of the property, that he knew there were guests on the property that were driving on the paved roads on the property, and that he knew they were driving up the hill after he hung the cable. He testified that it occurred to him after he hung the cable that he ought to mark it with something.
On cross-examination, Michael testified that when he left after putting up the cable, he was going to get some yellow marking tape or caution tape. He also testified that he had made the decision to put up the cable on his own and did not talk to anyone about it before doing so. He explained that when he got to his dad’s van to get the caution tape, he heard Jessica Voros screaming. His dad and Stewart took off, and he followed them on foot. After they took Pruett away in the van, he helped Jessica get a ride to the hospital and then took the cable down so no one else would get hurt. He testified that it did not occur to him at the time he put the cable up that it might hurt someone, but afterwards he realized that there was a potential for someone to get hurt and that is why he went to get the caution tape.
Mike Carr’s deposition testimony was also admitted at the trial and portions of the deposition were read into the record. In his deposition, Mike testified that the Dogpatch property had been in the Carr family since 1993, and before that it was owned by his mother’s family. He explained that he did not know who actually held the title to the property, but his brother, C.L. Carr, was generally in control of the property. He testified that he and his children, along with some of their friends, began cleaning up the property in June 2005.
|n Mike recalled the incident that occurred in May 2005 and stated that he caught several of the Nances on his property at 11:00 p.m. on four-wheelers. He stated that one of the boys (referring to Wes Cyrus) tried to run him and his son over with his four-wheeler several times, and he also stated that Pruett was there, too. Mike explained that he told the boys they were trespassing and that they should not be there. He also had his son call the police, and the police explained to the boys that they could leave, but if they came back on the property their four-wheelers would be confiscated. Mike denied that he or his son had a weapon of any kind. He stated that he made clear they were not welcome on the property.
Mike testified that he did not recall ever meeting Stewart or Pruett Nance prior to the day of the accident. He testified that on that day, Stewart pulled up on a four-wheeler and came over to speak to him, while Pruett was riding his four-wheeler around the parking lot and “cutting doughnuts.” Mike testified that Stewart began speaking to him, but that he immediately began walking toward his van because he wanted to go over to where Pruett was and tell him to stop what he was doing. Mike stated that Stewart did ask if they could ride on the property, but that he never answered yes or no. Mike explained that Stewart got back on his four-wheeler while he drove toward Pruett. At that point, Pruett and Jessica left the area on the four-wheeler, and according to Mike, they knew he was pursuing them. He drove through the property looking for them, and several minutes later, he saw Stewart stopped at the swinging bridge. Mike pulled up and talked to him for just a minute, and that was when they heard Jessica screaming. Mike stated that he had been following them in order to get 112them off the property and that Pruett had been evading him. He also stated that when he was sitting at the swinging bridge, his son Michael had approached and asked him for some caution tape. Mike testified that at the time, he did not know his son had put up the cable. He reiterated that Stewart and Pruett Nance did not have permission to be on the property and that he did not recall ever previously giving them permission to be on the property. But he acknowledged that he had never actually told the Nances to leave the property that day.
C.L. Carr, Sr., testified as to the ownership of the property and acknowledged that the property, which had been bought by GAC Investments, Inc., in 1995, was then assigned to Leisuretek Limited, a corporation owned by Ford Carr, C.L.’s brother. He also testified that the property was eventually deeded to Tahoe Gaming, LLC, a corporation owned by C.L. Carr, Jr. He testified that he did not tell Mike what to do on the property, but that he did give him checks written on Leisure-tek’s bank account to pay for materials for the clean-up.
At the conclusion of this testimony, the defense asked for a directed verdict on all the issues raised in the complaint. The defense asserted that the plaintiffs had failed to meet their burden of proof under the Arkansas Recreational Use Statute, codified at Arkansas Code Annotated section 18-11-301 et seq., which generally grants a landowner immunity from liability to persons entering the landowner’s property for recreational purposes. However, an exception to this immunity exists “[f]or malicious, but not mere negligent, failure to guard or warn against an ultra-hazardous condition, structure, personal property, use, or activity actually known to the owner to be dangerous.” Ark.Code Ann. § 18-11-307(1) (Replj 1a2003). So, for the plaintiffs to prevail, they were required to prove (1) that a failure to guard or warn occurred; (2) that the failure to guard or warn was malicious; (3) that a malicious failure to guard or warn occurred in relation to an ultra-hazardous condition; and (4) that the ultra-hazardous condition was actually known to the owner to be dangerous. The defense contended that the plaintiffs had failed to prove these elements, and argued specifically that there was no malice demonstrated and that the cable was not an ultra-hazardous condition or structure. The defense also asserted that the plaintiffs had failed to exercise reasonable care to avoid injury. The court, however, found that there was evidence that supported the elements of the cause of action and therefore denied the motion for directed verdict.
The defense then called Russ Rasnic, a mechanical engineer, to testify. Rasnic testified that he was asked to conduct a forensic examination of the accident. While acknowledging that he did not examine the trees until three years after the accident, he testified that he observed two distinct marks that were indicative of where the cable was strung between the trees. Based on the location of those marks, he pulled a tape measure between the two marks and stretched it taut, and the height of the cable at the center of the road was forty-six inches, which was consistent with Michael’s testimony that he placed the cable at what he thought was waist height. Allowing for some sag in the cable, Rasnic testified that the height of the cable was between forty-two and forty-six inches. Rasnic also testified that Jessica’s presence on the back of the four-wheeler had an effect on the significance of Pruett’s injuries, because when he hit the cable, he stopped, but she was still traveling forward and pushed into the back 114of him.
At the close of all the evidence, the defense renewed its motion for directed verdict. The court then discussed jury instructions with counsel, and the defense objected to an instruction on punitive damages, arguing that this was a statutory cause of action and there was nothing in the statute providing for punitive damages. The defense asserted that the instruction alluded to the “willful and wanton” language with regard to malice, which was not appropriate in this case. The court decided that the instruction would be read to the jury and included in the instruction would be both the standard for punitive damages and the required elements under § 18-11-307(1) to establish liability.
The jury returned a verdict in favor of appellees, awarding Pruett $100,000 in compensatory damages and $150,000 in punitive damages. The jury awarded Stewart $400,000 in compensatory damages. Appellants filed a motion seeking remitti-tur and asserting that the proof adduced at trial established that Stewart’s compensatory damages totaled $233,762.22. The circuit court granted the motion for remit-titur and reduced Stewart’s compensatory damages to $233,707.42. The circuit court entered a judgment on October 21, 2008.
Appellants subsequently filed a motion for judgment notwithstanding the verdict, 11salleging that the evidence was insufficient to support the verdict. Specifically, appellants argued that appellees failed to present evidence of malice, the existence of an ultra-hazardous condition, or that Mike E. Carr and Michael L. Carr were acting as agents of C.L. Carr and C.L. Carr, Jr. The circuit court entered an order denying the motion, and appellants filed a timely, joint notice of appeal. As previously mentioned, however, the appeal was dismissed without prejudice by this court due to a lack of a final order, because there was no written order entered dismissing Lynn Larson as a plaintiff or dismissing Westek Corporation, Leisuretek, Ltd., Ford Carr, and Alberta Carr as defendants. On March 15, 2010, the circuit court entered an order of dismissal as to these parties, and appellants filed a notice of appeal on March 24, 2010. Appellees filed a notice of cross-appeal on March 31, 2010.
I. Sufficiency of the Evidence
For their first point on appeal, appellants argue that the circuit court erred in denying their motion for judgment notwithstanding the verdict because appellees failed to prove the required elements under Ark.Code Ann. § 18 — 11— 307(1). Specifically, appellants assert that appellees failed to present substantial evidence of malicious intent, an ultra-hazardous condition, or knowledge on the part of the landowner. Our standard of review for a denial of a motion for judgment notwithstanding the verdict is well settled:
[I]n reviewing the denial of a motion for [judgment notwithstanding the verdict], we will reverse only if there is no substantial evidence to support the jury’s verdict, and the moving party is entitled to judgment as a matter of law. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion |1(ione way or the other. It is not our place to try issues of fact; rather, we simply review the record for substantial evidence to support the jury’s verdict. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. A motion for directed verdict should be denied when there is a conflict in the evidence, or when the evidence is such that fair-minded people might reach different conclusions.
ConAgra Foods, Inc. v. Draper, 872 Ark. 361, 364, 276 S.W.3d 244, 247-48 (2008) (internal citations omitted).
A. Malicious Intent
Appellants first argue that, in considering a landowner’s failure to warn, the recreational user’s negligent conduct must also be considered. Appellants cite Roten v. United States, 850 F.Supp. 786 (W.D.Ark.1994), as recognizing the inconsistency in requiring a landowner to take extra precautionary measures to guard or warn against a condition on the property when it is the recreational user’s own negligent conduct that causes the user’s injuries. In Roten, the decedent fell to his death off of a cliff at night in a national recreational area, but the court found that the National Park Service had not maliciously failed to warn against an ultra-hazardous condition known by the Service to be dangerous concerning the cliffs. The court found that the placement of additional warning signs in the area would have provided no more or better warning than the decedent’s own sensory perceptions in viewing the cliffs in the daylight prior to his fall. The court also found that
if the defendant were required to install such guard rails or fences along the high cliffs of White Rock the said obvious purposes of the Recreational Use Statute would be defeated and frustrated, not because defendant would otherwise be held to be acting maliciously, but because those using the recreational areas were being negligent and [ ^irresponsible in their use of the area.
Id. at 794. Appellants urge that this language supports a finding that Pruett’s injuries were caused by his own negligent conduct and not by a failure on the part of appellants. Specifically, appellants argue Pruett was negligent in not wearing a helmet, riding with a passenger on his four-wheeler, and not keeping a proper look-out.
Appellants also discuss a couple of other federal cases that have touched on the meaning of “malice” in the context of a recreational use statute. In Carlton v. Cleburne County, Arkansas, 93 F.3d 505 (8th Cir.1996), the victims of a bridge collapse sued a nearby resort for negligence, alleging that the resort had failed to warn them of an ultra-hazardous danger. The resort was granted summary judgment, and the appellate court affirmed. The court noted that, under Arkansas law, “malice” is inferred where “the negligent party knew, or had reason to believe, that his act of negligence was about to inflict injury, and that he continued in his course with a conscious indifference to the consequences.” Id. at 511 (quoting Stein v. Lukas, 308 Ark. 74, 78, 823 S.W.2d 832, 834 (1992)). The court held that there had been no facts offered to support a finding that the resort had maliciously failed to warn, because there was no evidence that the resort knew the bridge was about to collapse yet continued its course of conduct with a conscious indifference to the consequences.
Appellants also cite to Cudworth v. Midcontinent Communications, 380 F.3d 375 (8th Cir.2004), which applied North Dakota law but presents a situation somewhat factually similar to the case at bar. In Cud-worth, a snowmobile rider was injured when he collided with a rope | isbarrier, which was partially obscured by a snowdrift, that the defendant had strung across its property boundary. The district court granted summary judgment in favor of the defendants, and the Eighth Circuit agreed that the defendants were immune from liability under North Dakota’s recreational-use statute (which is worded similarly to the Arkansas statute). Specifically, the district court concluded that “malicious” conduct required proof of actual malice or evil intent, but the appellants urged a broader definition that also encompassed “presumed malice” which exists “where the defendant’s conduct amounts to a reckless disregard of the rights of others.” Id. at 381 (quoting Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 581 (N.D.1991)). The Eighth Circuit disagreed and found that if the legislature had intended to allow liability for presumed malice or reckless disregard in the recreational use immunity statute, it would have stated so.
Likewise, because no Arkansas court has yet interpreted the meaning of “malicious” in § 18-11-307(1), appellants urge this court to interpret the statute according to its “plain meaning” and find that the legislature only intended the statute to apply to actual malice, meaning the intentional doing of a wrongful act without justification or excuse, as opposed to implied malice. And, appellants argue, in this case there was no actual malice proven. Specifically, appellants dispute that the height of the cable can be used as evidence of malice, as it was only intended to prevent access to portions of the property and was not intended to harm anyone. Appellants argue that appellees’ contention that the cable was a “trap” is mere suspicion or conjecture and that the evidence presented at trial might prove negligence, at best, but not malicious intent.
|lflIn response, appellees argue the converse of appellants’ argument: appellees argue that if the legislature wanted to limit the exception to immunity to situations involving “actual malice,” then it would have used that term in the statute. To illustrate, appellees cite several statutes in which the term “actual malice” is used. E.g. Ark.Code Ann. § 5-26-502(e); § 12-13-303(e). Appellees urge that this court should interpret “malicious” in the recreational-use statute as including inferred malice, as the Eighth Circuit did in Carlton, supra. Appellees also note that this interpretation of malice is the same as that used in Ark. Code Ann. § 16-55-206, which explains the standard for an award of punitive damages under the Civil Justice Reform Act. Finally, appellees contend that under either an inferred malice or an actual malice standard, there was substantial evidence to support the jury’s finding of malice in this case.
We affirm on this point. First, any question regarding Pruett’s contributory negligence, if any, was a question for the jury. Second, as explained at length by the circuit court in its order denying the motion for judgment notwithstanding the verdict, “[t]here was evidence from which, under the circumstances, it could have been determined that there was knowledge of the hazard and opportunity to warn and that it was not done; that there was malicious failure to warn.” The jury was not instructed as to the meaning of “malicious,”, and because this case was submitted to the jury under a general verdict form, this court can only speculate on how the jury defined “malicious.” When a jury’s verdict is rendered on a general verdict form, it is a finding upon the whole case; this court will not speculate on what the jury found where a general jury verdict is used. Union Pac. R.R. Co. v. Barber, 356 Ark. 268, 293, 149 S.W.3d 325, 341 (2004) (“When special interrogatories concerning liability or damages are not requested, and this court is left in the position of not knowing the basis for the jury’s verdict, we will neither question nor theorize about the jury’s findings.”). Furthermore, as we have no specific ruling below on the correct statutory interpretation of “malicious,” we decline to address the issue at this time.
B. Ultra-hazardous Condition
In this case, the jury was instructed that a condition is ultra-hazardous if it (1) cannot be performed without a risk of serious harm to the person or another, regardless of any precautions taken; and (2) does not normally occur in that community. On appeal, appellants argue that there was no substantial evidence presented that the use of a cable to limit access to the property was an ultra-hazardous condition or activity. Appellants assert that the usage of a cable for such a purpose does not necessarily involve a risk of serious harm, because any such risk can be eliminated by the exercise of due care on the part of the landowner. Michael Carr testified that he was going to retrieve caution tape to attach to the cable at the time the accident occurred; thus, appellants contend that if he had had sufficient time to flag the cable, “the accident would have been unlikely to occur.” Also, appellants argue, there was evidence presented that it is common practice to install cables as barriers to prevent entry upon land. Stewart Nance’s friend, Dean McKnight, and Stewart himself testified that they had previously used cable to prevent access to property. Therefore, the use of the cable in this case cannot be considered an ultra-hazardous activity or condition.
I^In response, appellees argue that whether the hazard can be eliminated by reasonable efforts and whether it is a common practice are not relevant considerations. But this argument is unavailing, considering that those considerations track the meaning of ultra-hazardous as defined by the jury instruction, which appellees did not object to below. Appellees also cite eases from other jurisdictions that support a finding that stringing an unmarked cable in such a way is a dangerous and ultrahaz-ardous activity. See, e.g., Seeholzer v. Kellstone, Inc., 80 Ohio App.3d 726, 610 N.E.2d 594 (1992) (reversing grant of summary judgment to landowner where driver of recreational vehicle was injured when he struck cable strung across pathway on landowner’s property).
In its order denying the motion for judgment notwithstanding the verdict, the circuit court stated:
It does not appear that stretching a well-marked cable of a reasonable height across a road in an area where it is reasonably visible to persons traveling the road is an ultrahazardous activity and it appears that such action is done commonly. But here, substantial evidence provides a basis for finding that maintaining a cable like the one claimed to have been installed, under the circumstances shown, is not a matter of common usage and necessarily involved a risk of serious harm to the person of Pruett Nance or any others who might be riding on the road under the conditions as then existed. From the record it appears that it could be found that ordinary care would have reduced the risk of harm, but, under the circumstances presented, it would not eliminate it.
We agree with this analysis. It was not the hanging of a cable per se that constituted the ultra-hazardous activity, but the hanging of an unmarked cable at a dangerous height in an area in which the landowner knows there are people traveling on four-wheelers. Therefore, we affirm on this point.
⅛0. Agency Relationship
Finally, appellants argue that ap-pellees failed to present substantial evidence of the existence of an agency relationship between Mike and Michael Carr and the other appellants. Specifically, appellants assert that there was no evidence offered to show that Mike or Michael Carr were employees or agents of Tahoe Gaming, LLC. Appellants also argue that C.L. Carr and C.L. Carr, Jr., are not personally liable for the obligations of Tahoe Gaming because appellees did not seek to pierce the corporate veil.
However, appellants failed to raise this argument during the trial and only did so for the first time in their motion for judgment notwithstanding the verdict. A motion for judgment notwithstanding the verdict is technically only a renewal of the motion for directed verdict made at the close of the evidence; therefore, it cannot assert a ground not included in the directed-verdict motion. Advanced Envtl. Recycling Techs., Inc. v. Advanced Control Solutions, Inc., 372 Ark. 286, 275 S.W.3d 162 (2008). Any arguments made in a motion for judgment notwithstanding the verdict that were not made in the motion for directed verdict may not be taken up on appeal; the arguments made in the directed-verdict motion are controlling. Id. Therefore, we find that this argument is not preserved for this court’s review.
II. Jury Instruction
As explained above, appellants objected to the instruction on punitive damages, arguing that this was a statutory cause of action and that there was nothing in the statute providing for punitive damages. Appellants also argued that the statute allows liability only for ^“malicious” failure to warn, but that the instruction alluded to the “willful and wanton” language with regard to malice, which was not appropriate in this case. The court decided that the instruction would be read to the jury and included in the instruction both the standard for punitive damages and the required elements to establish liability under § 18-11-307(1).
On appeal, appellants again assert that the court erred in giving the punitive-damages instruction, arguing that it was “misleading and confusing to the jury and provided an inappropriate standard for the imposition of punitive damages in light of the malice required” under the recreational-use statute. A party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006). We will not reverse a circuit court’s decision to give an instruction unless the court abused its discretion. Id.
In support of their argument, appellants cite to Wal-Mart Stores, Inc. v. Binns, 341 Ark. 157, 15 S.W.3d 320 (2000). In Binns, an employee filed negligent prosecution, abuse of process, and malicious prosecution claims against her employer. The jury returned a verdict in the employee’s favor on the abuse of process and malicious prosecution claims and awarded her $750,000 in compensatory damages and $2,000,000 in punitive damages. On appeal, Wal-Mart argued that the court had erred in instructing the jury to award punitive damages if they found that Wal-Mart had “intentionally pursued a course of conduct for the purpose of causing damage.” Id. at 164, 15 S.W.3d at 325 (emphasis in original). Wal-Mart argued that the use of this instruction created an inconsistent standard for awarding punitive damages when the underlying tort involves malice. This court agreed and explained that
ktthe underlying claim of malicious prosecution (which could have formed the sole basis for the challenged punitive-damages award), requires that the plaintiff prove intent and a spirit of ill will, hatred, or revenge. However, the jury instruction submitted inconsistently permits an award based on a lesser degree of scienter, merely proof that the defendant intentionally pursued a course of conduct for the purpose of causing damage.
Id. at 164-65, 15 S.W.3d at 325 (emphasis in original). Thus, this court held that the circuit court had erred in submitting the instruction and reversed.
Appellants assert that a similar situation is presented in the case at bar. Arkansas Code Annotated section 18-11-307(1) allows recovery only when there has been “malicious, but not mere negligent, failure to guard or warn against an ultra-hazardous condition ... actually known to the owner to be dangerous.” But under the jury instruction given, appellants argue, the jury was allowed to award punitive damages if it found liability under the statute and it found that “the Defendants knew or ought to have known, in light of the surrounding circumstances, that their conduct would naturally and probably result in injury and that they continued such conduct with malice in reckless disregard of the consequences from which malice may be inferred.” Alternatively, the jury could award punitive damages if it found that the defendants “intentionally pursued a course of conduct for the purpose of causing injury.” Appellants argue that the statute makes no reference to presumed malice, reckless disregard, or mere intentional conduct, and instructing the jury to award punitive damages under these “lesser standards” was error.
In response, appellees contend that there was no error in the instruction because implied malice is allowed under the statute, thus the standard for imposing punitive damages ⅛⅛ the same standard for finding malice under the statute. Ap-pellees also point out that § 18-11-307 states that “[njothing in this subehapter limits in any way liability which otherwise exists” for malicious failure to guard 'or warn, so regardless of which definition of “malicious” is used, punitive damages is an available remedy if liability is found under the statute.
While appellants contend that the jury instruction allowed the jury to award punitive damages under a lesser standard, akin to Binns, the situation in this case is distinguishable. In Binns, the jury instruction included an “intentional” standard, which was a lesser standard than that required for a finding of malicious prosecution. But in this case, the “higher” standard found in the statute itself was made a part of the instruction, thus eliminating the problem that was present in Binns. Regardless of the other language included in the instruction, the jury was still instructed that it first had to find that the defendants had acted with malicious intent under the language of section 18-11-307(1) in order to award punitive damages. Thus, we find no abuse of discretion on this point and affirm.
III. Cross-Appeal
On cross-appeal, appellees assert that the circuit court erred in granting appellants’ motion for remittitur. We review the issue of remittitur de novo. See Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003). Where an award of damages is alleged to be excessive, this court reviews the proof and all reasonable inferences most favorably to the appellee and determines whether the verdict is so great as to shock the conscience of the court or demonstrate passion or prejudice on the part of the trier of fact. Id. Remit-titur is appropriate [2fiwhen the compensatory damages awarded are excessive and cannot be sustained by the evidence. Id. The standard of review in such a case is that appropriate for a new trial motion, i.e., whether there is substantial evidence to support the verdict. Id.
In its order granting the motion for remittitur, the circuit court noted that Stewart Nance had testified that his only claim was for the medical bills that he had paid on Pruett’s behalf. And, during closing arguments, plaintiffs’ counsel reiterated that all they were asking for was damages to cover the amount of medical bills. Further, there was no evidence presented to show the value of any services rendered or any expenditures made by Stewart beyond the $233,707.42 in medical bills. Considering all these factors, the court found that the $400,000 damages verdict in favor of Stewart was grossly excessive and lacked a sufficient evidentiary basis.
Appellees argue that, while there was no proof offered of the monetary value of the services rendered by Stewart in his care of Pruett, the jury was instructed that it should compensate Stewart for “the reasonable expense of any necessary medical care, treatment, and services received, including transportation and board and lodging expenses necessarily incurred in securing such care, treatment, or services on behalf of Pruett Nance.” Clearly, by awarding Stewart $400,000, the jury decided to compensate Stewart for his transportation, lodging, and the value of his care-taking activities for Pruett during Pruett’s recuperation. Appellees also note that appellants did not object to the above instruction, which they argue is a “waiver of any complaint that insufficient evidence existed to support awarding for these amounts.” |27Appellees also argue that, contrary to the circuit court’s opinion, they were not required to present proof of the value of all those services to recover for them. Furthermore, appellees assert that neither Stewart’s testimony that he was only seeking damages for medical expenses, nor his counsel’s statement during closing argument, should be construed as precluding the jury from considering the caretaking efforts by Stewart and awarding him accordingly.
In response, appellants first deny that their remittitur argument was waived by failure to object to the jury instruction on compensatory damages. Appellants argue that the jury instruction was not at issue; the issue was whether there was sufficient evidence to support the jury’s award. Appellants cite to this court’s case law stating that damages must be proven with specificity, namely in terms of dollars and cents. Appellants assert that, even assuming that the excess award was to cover Stewart’s expenses for transportation, lodging, and caretaking, which is unclear considering the jury rendered only a general verdict, appellees presented no evidence of his transportation and lodging costs or the value of caretaking services. Appellants contend that appellees presented and asked for compensation only for the medical bills, and any award in excess of that was properly remitted.
First, we agree with appellants that their argument on this point has not been waived. Appellants’ argument was not that there was an error in the instruction; the argument was that there was no evidence to support an award in excess of Stewart’s medical bills. Second, appellants are correct that this court has stated that the plaintiff must present proof that would enable the jury to fix damages in dollars and cents, and damages will not be allowed which |2Sare speculative, resting only upon conjectural evidence or the opinion of the parties. Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 548 (1989). But this court has also stated that in those instances where damages simply cannot be proven with exactness, when the cause and existence of damages have been established by the evidence, recovery will not be denied merely because the damages cannot be determined with exactness. Id.
Considering the above law and our standard of review for grants of remit-titur, we find that the jury was entitled to award damages for the caretaking activities undertaken by Stewart as well as other costs and that the verdict given was not so great as to shock the conscience of the court or demonstrate passion or prejudice on the part of the jury. We therefore reverse the order granting remittitur and remand for the circuit court to reinstate the original compensatory-damages award of $400,000.
Affirmed on direct appeal; reversed on cross-appeal.
. The original plaintiffs in this case were Stewart Nance and Lynn Larson, individually and as parents of Jon Pruett Nance, and Pruett Nance. The original defendants were Westek Corporation, Inc., and Mike Carr. The plaintiffs amended their complaint on September 11, 2006, and added Michael Carr, son of Mike Carr; Tahoe Gaming, LLC; Leis-uretek, Ltd.; C.L. Carr; C.L. Carr, Jr.; Ford Carr; Alberta Carr; and John Does 1-50 as defendants. Immediately prior to trial, the circuit court announced that certain changes in the parties to the litigation had been made; specifically, the circuit court stated that Lynn Larson was no longer a plaintiff and that the only remaining defendants were C.L. Carr, Jr., C.L. Carr, Mike Carr, Michael Carr, and Tahoe Gaming. However, no written order was entered dismissing Lynn Larson as a plaintiff or dismissing Westek Corporation, Leisuretek, Ltd., Ford Carr, and Alberta Carr as defendants, and on the first appeal of this case, the appeal was dismissed without prejudice by this court due to a lack of a final order. Carr v. Nance, 2010 Ark. 25, 2010 WL 199626. A final order dismissing the remaining parties has now been entered, and the appeal is properly before this court.
. There was no specific ruling by the circuit court on this renewed motion for directed verdict; however, under Ark. R. Civ. P. 50(e), the motion is deemed denied for purposes of appellate review.
. The amount of total medical bills introduced at trial was $233,707.42. | [
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