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McHaney, J.
On September 20, 1939, appellant was charged by information with the crime of gambling, committed by operating a gaming device — a slot machine. Court being in session, a bench warrant was issued and he was arrested. The record shows that at 1 p. m. of that date his case was called in court, where he appeared in person and announced that he was not ready for trial; the court advised him the case would be called at 8 a. m. the next morning. At 9 a. m., September 21, his case was called for trial and he again was not ready. He stated that he wanted to get an attorney from Searcy and had just had a subpoena issued for his witnesses. The court held that he had not used diligence, and the case went tc trial, resulting in a verdict of guilty and assessing a fine of $500 and sixty days in jail, on which judgment was entered. ■
If appellant objected to being forced into trial before he had an opportunity, to employ counsel, or if he filed a motion for a continuance because of the absence of his witnesses, the record does not show it. He had from the time he was arrested on the preceding day to 9 a. m. to employ counsel and have subpoenas for his witnesses. This being a misdemeanor charge, there was no duty on the court to appoint him counsel. Section 3-877, Pope’s Digest. And he showed no diligence in getting witnesses, even had he filed a motion for continuance on that account.
All the other questions raised by appellant, except the sufficiency of the evidence to support the verdict, are not open to question by him, because not reflected by the bill of exceptions and are raised for the first time in his motion for a new trial. He did file a motion for an order nunc pro tunc,.but it does not appear that it was presented to or ruled on by the court.
The sufficiency of the evidence cannot be doubted. It is not in dispute. He offered no witness and did not testify for himself. Three witnesses testify for the state, that they had been in appellant’s road house, saw a slot machine therein in operation, and one said the machine he saw was a kind of gambling device, where you put money in, pulled a crank and got money out, if you were lucky. This was amply sufficient.
Affirmed.
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Holt, J.
This action was begun in the Mississippi circuit court, Chickasawba district, by appellee, Susanna C. Henson, as beneficiary, to recover on a life insurance policy, alleged to have been issued by appellant, John Hancock Mutual Life Insurance Company, on the life of E. L. McCullars, her grandson, in the sum of $1,000 and for double this amount if death should result solely by external, violent and accidental means.
It was alleged in the complaint that the policy had been duly issued to the insured, E. L. McCullars, the first quarterly premium paid, the policy delivered, that it was in full force and effect at the time McCullars was shot and killed on November 10, 1934, and that he had at all times fully complied with all the terms and conditions arising under said contract of insurance; that due notice and proof of death had been made, and sought recovery in the sum of $1,000 on the life of the said McCullars and an additional $1,000 for his accidental death, or a total of $2,000, together with an attorney’s fee and penalty.
Among the defenses set up by appellant were that there was never any valid delivery of the policy to the insured, McCullars, and the payment of the first quarterly premium of $8.07 was never paid so as to put the policy in force and effect.
Appellee recovered judgment below on both the ordinary death claim arid the accidental death clause of the policy in the total sum of $1,995.93. From the judgment comes this appeal.
Among the assignments of error urged by the appellant here are that the evidence shows that the policy sued on ivas never delivered and that the first quarterly premium of $8.07 was never paid and, therefore, there can be no liability. After a careful consideration of this entire record Ave have reached the conclusion that appellant is correct in these contentions.
It is provided in the policy: “This insurance is granted in consideration of the application herefor, a copy of which is attached hereto, and made a part of this contract.” The application provided: “That if payment of the premium has not been made Avith the application, any policy which may be issued hereon shall take effect only if I have had no medical treatment since the date of the application, and then only in the event that it shall be delivered to, and actually received by me, and the first premium or installment thereof actually paid while I am alive and in sound health, and that whether the premium is paid with the application or otherwise, delivery and payment shall constitute an acceptance of the policy and of all of its conditions. That a receipt on the form attached hereto is the only receipt the agent is authorized to give for any payment made before the delivery of the policy.”
On this question as to whether the policy was delivered and the first quarterly premium paid, the testimony as reflected by the record is to the following effect:
Leonidas Henson, uncle of the. insured, testified that he was present on the Saturday night, November 3, 1934, when Bujewski, appellant’s agent, came to appellee’s home bringing the policy in suit. When this agent arrived he remarked to the witness: ‘ ‘ Lee, here is Elmo’s policy. He went through nonmedical o.k.”
He further testified that while he was in and out of the room he did not recall the conversation that Bujewski and McCullars had until Bujewski started to leave when the following conversation occurred: “Well, Elmo told him, he said, ‘Now, I want you to be here next Saturday night and collect the balance of this money,’ and he said, ‘All right, Elmo, I will be here or send some-body,’ and he stepped out the door and left.”
He further testified that on the day named Elmo Mc-Cullars was at the appointed place, ready and willing to pay the balance of the premium, and that when Bujewski failed to arrive at the appointed hour McCullars turned over to him (Leonidas) $4.07 to pay Bujewski. Bujewski, however, never did call for the money, despite his promise to do so.
Appellee, Mrs. Henson, testified that she was present when Bujewski took the insured’s application and also on November 3rd when he came to her home bringing the policy in question; that McCullars, the insured, and Bujewski were in an adjoining room, but there was an opening between; that when Bujewski arrived he told McCullars that he had brought his policy and that Mc-Cullars had passed all right; that she saw the policy; that Bujewsld handed it to Elmo McCullars; that McCullars took the policy and sat down and went to reading it:
• She further testified that McCullars seemed to be in a hurry; that he handed the policy back to Bujewski and Bujewski told him to keep the policy and McCullars said: • “No,’you take them and keep them and when you come back I will have all of the money to pay them out”; that Elmo gave the agent four dollars; that Bujewski said he would bring the policy back the next Saturday.
She further testified: “He (meaning Bujewski) wanted to leave the policy with my grandson and my grandson told him to take it back until later on. He wanted him to think he was honest because the man didn’t know anything about it and Elmo told him he would have all the money when he came back later. ”
Lucille Tolber testified that appellant’s agent brought the policy to her home where the Hensons lived on November 3rd and saw McCullars holding the policy in his hands as if he were reading it; that the first information she had that the policy was not left in the possession of McCullars or the Hensons was the next Saturday night about ten o’clock:
Appellant’s insurance agent, Bujewski, testified that he never delivered the policy and never collected the first premium; that McCullars, the insured, gave him $4 with the understanding that he was to hold the $4.00 for McCullars until the balance of the premium was paid. It is conceded that no part of the premium was paid at the time the application was made. He admitted that he went to McCullars’ home on November 3rd with the policy; that he showed McCullars the policy and told him that he was ready to deliver it and collect the first premium and McCullars told him he was short of money, but that McCullars gave him $4 on the premium of $8.07 and told Bujewski to hold the $4 until the next-week when he would pay him the balance of $4.07. He gave McCullars his personal receipt and intended to deliver the policy the following week; that he advised McCul lars that the policy would not be in force and effect until all the premium was collected.
He further testified that he did not get back to town until late the following Saturday night and did not call on McCullars to deliver the policy and collect the balance of $4.07.
There is also in evidence a letter from Bujewski to his district manager in St. Louis, dated December 5,1934, which contains the following paragraph: “I wish to advise that I had made arrangements to call on Mr. McCullars for the Saturday of November 10th to collect the balance of premium and deliver the policy. I failed to keep the appointment account of being on a call at that time quite a ways from his residence and was not able to get there at the time he suggested.”
It is conceded that thé rights of the parties are governed by the laws of Missouri where the contract in question was entered into.
The contract before us requires that the policy is to take effect “only in the event that it shall be delivered to, and actually received by me, and the first premium or installment thereof actually paid while I am alive and in sound health.” We think, under the facts presented here, that neither of these pro visions, was complied with by the insured, and, therefore, the policy was never in effect.
With reference to the delivery of an insurance policy and the payment of the first premium, the Supreme Court of Missouri in Cravens v. New York Life Ins. Co., 148 Mo. 1. c. 599, 50 S. W. 519, 53 L. R. A. 305, 71 Am. St. Rep. 628, said: “However perfect in form the contract may have been and although all of its other terms and conditions may have been complied with, payment of the premium during the life and good health of the assured and delivery of the contract to him were conditions precedent in order to complete its execution. ’ ’
As to the rule governing on the question of delivery of the policy in question, the text-writer in Couch’s Cyclopedia of Insurance Laiv, Yol. 1, p. 223, § 118, says: “Actual or manual delivery of a-policy of insurance is unnecessary, if the contract is otherwise complete and the parties intend that it shall be effective without such a delivery, . . . the parties undoubtedly may validly contract that a policy shall not take effect until delivered, and if there be a provision or- an agreement that the policy shall not be in force until actually delivered to the insured, actual delivery is a condition precedent, and the contract is not consummated, nor is the company bound,.-in the absence of such delivery, unless compliance therewith.be waived, as it may be.”
The law seems to be well settled not only in Missouri, but in Arkansas as well, that where the policy, or application being made part of the policy, required actual delivery during the lifetime and good health of the insured and payment, of the first premium as a condition precedent to the policy becoming effective, the burden is on the plaintiff to show that these requirements have been met.
In National Life & Accident Insurance Company v. Davison, 187 Ark. 158, 58 S. W. 2d 691, this court said: “An insurance company may limit its liability to recovery of premiums paid if an insured was not in sound health on the date of the policy, and a condition that the policy shall not take effect unless delivered during the lifetime and good health of the insured is a valid condition precedent to the liability of the company. 37 C. J. 405.”
And in Mutual Life Insurance Company v. Parrish, 66 Ark. 612, 52 S. W. 438, this court said: “The mere manual possession of the policy by either party makes a prima facie case for that party, subject to be rebutted by proof aliunde that the contract of insurance was complete and valid, or that delivery was essential to completion or not without delivery.”
It appears from this record that the trial court took from the jury the issue of the right of appellee to recover $1,000, the face amount of the policy in question, and rendered judgment for this amount in favor of appellee and in doing so made the following declaration: “At this time both parties joining in a request for an instructed verdict as to the amount of $1,000, the court declares as a matter of law and fact that the insurance company in this case has waived, by mailing premium notice and by other evidence in the uase, the contention of non-delivery of the policy; and the payment in full at or prior to the time of delivery; that judgment should be for the plaintiff for $1,000, less the balance due for the first quarterly premium and for proper interest and cost and. that there should be no penalty in this case.”
It seems undisputed that appellant did mail a printed notice of a quarterly premium to become due January 21,1935, on the policy in question, more than two months after McCullars’ death. This notice was addressed to McCullars at his home in :St. Louis, Mo. It arrived at McCullars’ address on January 5, 1935, and was opened and read by appellee, the beneficiary. We cannot agree that this notice sent out by the company two months after insured’s death amounted to a waiver or an estoppel.
In the case of Curtis v. Prudential Insurance Company of America, 55 Fed. 2d 97, a case arising in North Carolina, the court said: ‘ ‘ The contention that the notice given of the payment due for the second quarter was a waiver of all conditions that existed, with reference to the first payment, is, we think, without merit. A notice of the second quarter’s payment was issued from the home office of the company, and was a mere matter of routine carried out in compliance with the North Carolina law requiring notices to be sent out at a certain stated time before the due date. Certainly the purely mechanical act of sending out a notice by one department of a large insurance company having that duty to perform with respect to thousands of policies could not be considered to constitute a waiver of the two conditions that were here necessary to be performed before any contract existed; that is, payment of the first premium and the delivery of the policy. Under some circumstances, such a notice might he held to prevent the forfeiture of a contract already in effect, but certainly cannot be held to give life to a contract that never existed.” See, also,' the case of Ross v. New York Life Insurance Company, 68 Fed. 2d 727.
After a careful review of the entire case, we conclude, that there was never in fact a delivery of the policy in question to the insured, and the first quarterly premium was not paid in accordance with the terms of the insurance contract. ’ The trial court, therefore, erred in failing to direct a verdict in favor of appellant at the close of all the testimony. Accordingly the judgment will be reversed, and, since the case seems to have been fully developed, it will be dismissed.
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Griffin Smith, C. J.
The question as stated by counsel for appellants is, Does act 326, approved March 19, 1939, authorize Houston School District No. 39 of Perry county to use for any purpose other than the retirement of bonds moneys arising- from a nine-mill tax levy?
Tbe applicable part of act 326 is printed in tbe margin.
We think there is this additional question: Was there a surplus in the bond account?
The school district (hereinafter referred to as the district) and the county treasurer were defendants below.
In 1928 the district issued $16,000 of 5 per cent, bonds. December 28, 1938, principal and interest in default amounted to $4,000. Between 1928 and 1938 assessed valuation of taxable property had decreased to $127,704 from $180,231.38.'
Through Arkansas Municipal Bond Bureau of Little Rock the district consummated a refunding plan whereby $16,000 of new bonds bearing 4 per cent, .interest would be exchanged for the old securities. The bureau acted as agent for holders of the 1928 issue and was authorized by the district to submit the refunding proposal. It contained the following features:
“The district agrees to vote a continuous and irrevocable tax of 9 mills for debt service, the entire proceeds of which can be used only for payment of the bonded indebtedness under the following provisions: (1) Upon receipts of final settlement of taxes in each year, the trustee will set aside sufficient money to pay interest on refunding bonds due prior to the next tax settlement date. (2) The surplus remaining in the debt fund after payment of interest as above must be used to pay refunding bonds on sealed tenders to be submitted on the 15th day of November in each year, or by call at par and accrued interest, whichever is cheaper. If for any reason the district fails to retire bonds by purchase on tenders or call at par and accrued interest, then outstanding bonds in the aggregate par value of the surplus in the debt fund, after paying interest, will automatically mature on January 1 in numerical order, and the holders thereof can demand payment and will have all the remedies and recourses as if the bonds carried serial maturity dates.”
Upon the basis of the proposal of which the quotation is only a part, holders of the 1928 issue surrendered the 'bonds for those dated January 1, 1939. The district applied to the state board of education for approval of the plan, which was given February 10, 1939.
On the district’s petition to the Perry county court, the proposal was submitted to voters at a special election held in May, 1939. The question was whether a continuing building fund tax of nine mills should be approved. On the ballot appeared the explanation shown in the fourth footnote. All votes' cast were in favor of the proposal.
Following approval by the electorate the district adopted a resolution creating a building fund. It was provided that all revenues derived from the nine-mill tax should be paid into this fund, . . . “to-be kept solely for the payment of refunding bonds, interest thereon, interest accrued on outstanding bonds,' and expense of refunding, as set out in the deed of trust.” There was a further provision that if in any year revenues from the nine-mill tax were not sufficient “. . . to meet the amount hereinafter appropriated out of said building fund in that year, the amount of the deficit shall be set aside and paid into said Building fund from the first moneys coming to the district from any source whatever. ’ ’
There were additional express pledges that none of the money accruing to the building fund should be applied to any other purpose “. . . until said bonds and coupons are paid.”
On the fact of the bonds this language appears:
“The school district may use the available surplus in any year, after providing for the payment of all interest due prior to the following tax settlement date, for the purchase of bonds of this issue on tender at not exceeding par and accrued interest, in the manner more specifically provided for in the deed of trust and pledge securing this bond issue. This bond, and all other bonds of this series, shall be redeemable by the district on January 1st of each year after date hereof, in numerical order, at par and accrued interest. Notice of such call for the redemption shall be published once a week for two weeks before the date fixed for redemption, in a newspaper, . . . and after the date mentioned in said call, this bond, if so called, will cease to bear interest, provided funds for its payment are on deposit with the paying agent at that time.”
Various covenants in the deed of trust are copied in the complaint, and were especially pleaded, material parts of which have been referred to.
Appellants call attention to § 11500 of Pope’s Digest, and to act 326 of 1939, and say: ‘ ‘ The difference in act 326 as it amends § 11500 seems to be that under the 1939 act, the surplus remaining after payments due for the current year [have been made] may be used for general purposes.”
There is this contention by appellants: “In view of the fact that no bonds mil mature until January 1, 1964, any sum in the building fund remaining after the payment of interest is a surplus. ... If effect is given to .the deed of trust, notwithstanding the provisions of act 326, . . . then the appellants must fail, be cause according to the deed of trust there could never be a surplus in any fund, as the deed of trust attempts to bind any and all funds to the payment of the bonds, which, of course, it cannot do.”
It is then insisted that the contract is controlled by act 326.
We do not think that the pledge (to apply to bond purposes all revenues arising from the nine-mill tax) is in derogation of the statute. The latter has reference to a surplus. In the case at bar there can be no surplus because all of the money must be remitted to the trustees for application to bonds and interest in the manner set out.
Act 326 does not prohibit a school district from contracting for the use of any otherwise permissive revenues in payment of bonds.. It only authorizes districts to use for other school purposes any year’s surplus “. . . over and above the amount necessary to pay bonds and interest maturing that year.” '
This, in substance, is what was held in Oak Grove Consolidated School District No. 9 v. Fitzgerald, Treasurer, decided June 5th of last year. It was there said: “Here we have a surplus fund after all maturities have been met. The original contract and the district’s bond, which evidences it, would have to be annulled or rewritten if this surplus were applied as payment on an indebtedness not due, and if it may not be thus used it must remain idle in the treasurer’s hands until the bonds have been ■discharged. ’ ’
In Horne v. Paragould School District the holding was that “The electors of any school district may vote a tax at any rate they wish [within constitutional limitations]. . . . The twelve mills voted-for school purposes could not lawfully be appropriated for payment of bonds or the interest thereon, nor could the six mills voted for bond purposes be appropriated for schools.”,
To the same effect is Pledger v. Cutrel.
The construction of the contract and law, as reflected by the chancellor’s decree, is correct.
Affirmed.
The second paragraph of § 2 of act 326 of 1939 is: ‘'No part of any building fund shall be used for any other purpose in any year than to pay the bonds and interest thereon maturing that year and any that may be past due, until such maturities are paid in full or until the funds are set aside to pay the full amount of such bonds; provided, that the surplus in any year over and above the amount necessary to pay bonds and interest maturing that year, whether hereafter or heretofore issued, máy be used by the respective school districts for any other school purposes.”
The full style of the case is Houston School District No. 39 of Perry County, Arkansas, and Claude Flewellen, Treasurer of Perry County, Arkansas, v. The Commercial National Bank of Little Rock, Arkansas, and Paul D. Speer, of Chicago, Illinois, Trustee.
The trustees are identified in the preceding footnote.
“The building fund is for a proposed issue of refunding bonds of $16,000 which will run for 25 years, and whatever number of mills is voted for the building fund will be a continuing levy of that amount annually on the real, and personal property now embraced in this district, until said bonds and interest are paid, and that shall be the effect of this election. The expense of refunding and any past-due interest on the present outstanding bonds may be paid from this building, fund. Voting for this building fund means setting apart from the 18 mills already voted for school purposes nine mills for the purposes above set out and does not increase the total school tax.”
Ante p...... , 129 S. W. 2d 223.
186 Ark. 1000, 57 S. W. 2d 568.
189 Ark. 562, 74 S. W. 2d 646, 75 S. W. 2d 76.
The decretal order is as follows: “It is therefore by the court ordered, adjudged and decreed that, until all the bonds and interest of the refunding issue of January 1, 1939, are paid in full, the defendants are hereby restrained from diverting any part of the proceeds of the nine mill building fund tax for any purposes other than those set out in the deed of trust and pledge; that the defendant district and the defendant county treasurer deposit the proceeds of the said nine mill building fund tax with the trustee when and as received from the county collector; that they use all of the available surplus in said building fund, after providing for the payment of interest maturing that year, for the retirement of the district’s refunding bonds either on tender, or by call at par and accrued interest, as set out in the covenants of the deed of trust securing said bonds; that any unused balance too small to be used for retiring bonds on tender or call be held in the building fund to supplement the funds available for tender or call the following year; that-no warrants be drawn against the building fund, nor paid by the defendant treasurer, except warrants for the purposes set out in the deed of trust and pledge securing the refunding bonds; and that plaintiffs have their costs herein.”
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Humphreys, J.
This is an appeal from the refusal of the circuit court of Pulaski county, third division, in a certiorari proceeding to quash alleged void orders of the prohate court of said county allowing and approving claims of Mrs. Lois Hill and rendering judgment thereon in the sum of $2,079 against the estate of appellant, an incompetent world war veteran.
It was alleged in the petition for certiorari that appellee, the guardian of appellant, had unlawfully paid said amount to Mrs. Lois Hill out of appellant’s estate under said void orders and that after making his final report and obtaining his discharge the probate court entered an order releasing the surety, Massachusetts Bonding & Insurance Co., which orders discharging appellee and releasing his surety should also be quashed.
A response to the petition was filed by appellee denying every material allegation in the petition for a writ of certiorari. It was also alleged in the petition that appellee, Mrs. Lois Hill, and the county judge had perpetrated a fraud upon appellant in procuring the alleged void orders and in paying the claims of Mrs. Lois Hill out of appellant’s estate.
■' A writ was issued and' the cause was tried upon agreement between the parties, with the consent of the court that the copies of the probate record attached to appellant’s petition would be' acceptable in place of copies of the record certified by the probate clerk, together with a stipulation, as follows:
“Stipulation of parties states that the records of Pulaski probate court reflect that guardian’s final settlement was filed on June 16, 1934, and confirmed by the court on April 17, 1935; that on April 15, 1936, Jim C. Cole, guardian, in succession, appealed from order of probate court approving final settlement of A. W. Taylor and refusing to consider exceptions to the settlement, one of which applied to the payment of $2,079 to Mrs. Lois Hill; that on August 14, 1937, John "W. Hill was declared sane by Hot Springs county probate court; that on March 28, 1938 John W. Hill dismissed said appeal taken by Jim C. Cole from the final settlement of Taylor; that the records of Pulaski chancery court reflect that plaintiff filed suit therein on August 13, 1938, against Taylor and the surety to surcharge Taylor’s accounts, attacking the payment by Taylor to Mrs. Lois Hill of $2,079, and later, on January 4,1939, plaintiff non-suited said action.”
The exhibits attached to the petition are as follows:
“ Exhibit £A.’ Petition for appointment as guardian states that A. W. Taylor, petitioning for letters of guardianship of John W. Hill, incompetent World War Veteran, represents that Hill has property valued at $1,800 coming to him from the United States Government; that petitioner will faithfully discharge duties as guardian, etc.
“Exhibit £B.’ Guardian’s Bond. A. W. Taylor as principal and Massachusetts Bonding & Ins. Co., as surety, acknowledge themselves indebted to the State of Arkansas in the sum of $2,000, conditioned that A. W. Taylor will faithfully discharge his duties as guardian of John W. Hill, etc. Approved by the. court.
“Exhibit £C.’ Petition of Lois Hill alleges that she is the wife of John W. Hill; that she is the owner of 120 acres of land (described); that John W. Hill, during the year 1929, sold all the timbers from said lands, amounting to 28 freight car loads of the net value of $1,850, and appropriated the money to his own use and has paid none of the money to her; that petitioner later sold the land and out of the funds received therefrom loaned $229 to John W. Hill, which has not been paid; prays that the probate court make an order directing the guardian, of .John W. Hill to pay her the sum of $2,079. (Accompanied by affidavits to support the petition.)
“Exhibit ‘D.’ The order of the probate court finds that the amount of $2,079 is justly due Mrs. Lois Hill and the same is a legal claim against the estate of John W. Hill; ordered and adjudged that said claim for said amount be approved as a legal claim against ward’s estate; and that A. W. Taylor, guardian, is directed to pay said sum to petitioner out of ward’s funds then in guardian’s possession, or which may thereafter come to his possession.
“Exhibit ‘E.’ Guardian’s first annual account., filed June 21,1931, shows receipts of $122;65 from Jabez M. Smith, former guardian, $1,260 in monthly compensation payments,'$726.57 in monthly insurance payments, and $726.22 in loans on adjusted service certificates, claims credit for following payments to Lois Hill, among other expenditures: May 13, 1931, $100; May 15, 1931, $50; and May 30, 1931, $50.
“Exhibit ‘F:.’ Guardian’s second annual account, filed July 21, 1932, shows receipts of $1,170 in monthly compensation payments, $755.29 in monthly insurance payments, and $2,168,95 from insurance claim against the government; claims credit for the following payment to Lois Hill, among other expenditures: July 2, 1931, $1,879.
“Exhibit ‘G.’ Order releasing surety, directs that Massachusetts Bonding & Ins. Co., be released from further liability on the guardian’s bond.”
No evidence was introduced or offered by the parties except the face of the record under the stipulations above.
There was no evidence tending to establish the allegation of fraud contained in the petition; so, as we view it, that question is not involved on this appeal.
Appellant contends that the petition of Mrs. Lois Hill for the allowances made to her were for unliquidated amounts, one being in the nature of damages for trespassing and conversion on her land and the other for money she had loaned her husband, appellant herein, and that the probate court was without jurisdiction to try either suit, and, hence, the allowances and judgments rendered thereon were void. According to the face of the record the claims presented by her were for liquidated amounts and it appears that the claims were supported by affidavits. There is nothing in the record showing what testimony in this regard was presented before the Pulaski probate court at the time the allowances were made. It does appear that the claims were approved by the Hon. 'Cleveland Cabler, the attorney of the Veteran’s Bureau, and that the court order making the allowances was also approved by him, but the record does not disclose what investigation he made and why he approved the claims. It is argued by appellant that the approval was procured by appellee in order to clear his skirts of a fraud he was attempting to practice upon his ward, the appellant herein; but there is nothing in this record from which we could find either actual or constructive fraud participated in by Mr. Cabler. It is argued by appellant that Mrs. Lois Hill had no attorney of record, but that someone prepared her. allegations and the affidavits in support thereof and appellant intimates that appellee did this himself. These are matters entirely outside of the record before us and as stated above there is no evidence whatever that any fraud was practiced by any of the parties connected with the transaction. We can only look to the face of the record in this certiorari proceeding to ascertain whether or not the probate court was without jurisdiction to make the allowances and approve them. The record reflects that appellant’s wife, Mrs. Lois Hill, presented her claim against appellant’s estate on May 12,1931, and that same was allowed by the probate court on May 13, 1931, also that appellee filed his final settlement and obtained his discharge as guardian on April 17, 1935, and that Jim C. Cole was appointed on April 15, 1936, as guardian in succession. Cole and his attorney excepted to the settlement and they made specific exceptions to the allowance of $2,079 to appellant’s wife and that from the refusal to sustain his exceptions he appealed the case to the circuit court. The appeal involved the same issues that are involved in the case at bar. This appeal was dismissed by appellant’s attorney and himself on March 28, 1938, after appellant had been declared competent and sane by the probate court of Hot Spring county, Arkansas, on August 14, 1937. The record does not reflect why this' appeal was dismissed.
The record before us also reflects that appellant filed a suit in the Pulaski chancery court on August 13, 1938, against appellee and his surety seeking to surcharge the accounts in the Pulaski probate court of appellee, attacking, among other things, the payment by appellee to appellant’s wife of the amount in question, $2,079. This suit involved the same issues that are involved in the suit at bar and the record does not disclose why appellant and his attorney took a non-suit of this chancery action on January 4, 1939.
The record then reflects that on October 14, 1938, appellant filed this petition in the Pulaski circuit court for a writ of certiorari. It thus appears that this application for a writ of certiorari was not filed for more than seven years after the probate court order allowing the claims of Mrs. Lois Hill and three and one-half years after the discharge of appellee as guardian and more than twelve months after the appellant was declared sane by the Hot Spring court and more than seven months after the dismissal of appellant’s appeal to the Pulaski circuit court and at the time he had a suit pending in the chancery court to surcharge the guardian’s account.
Even if it be conceded that the orders were void the rule is that void judgments or final orders are appealable. Taylor v. Bay St. Francis Drainage District, 171 Ark. 285, 284 S. W. 770 and void orders or judgments in the probate court even after the lapse of time to take an appeal therefrom may be corrected in the chancery court in suits to surcharge the accounts of a guardian. Such a suit was brought by appellant in the chancery court, but afterwards dismissed by him without any explanation by him as to why he did so.
- This court said in the case of Burgett v. Apperson, 52 Ark. 213, 12 S. W. 559 that: “The writ of certiorari may be used not' only to correct a want of jurisdiction, but also the erroneous proceedings of an inferior tribunal. But, it will not lie to review mere errors at the instance of one who has lost the right of appeal by his own fault, or, who neglects to apply for the writ as soon as possible after the necessity of resorting to it arises. . . . The period within which the writ of certiorari may be granted is not limited by statute. Where, however, it is sought as a substitute for appeal the time within which an appeal might have been prosecuted is adopted by analogy.”
This court, also, said in the case of Bloch v. Town of Brinkley, 54 Ark. 372, 15 S. W. 1030, that:' “The rule is to refuse the writ when a party seeking it fails to show that he has proceeded with expedition after discovering that it was necessary to resort to it .' . .”
This court, also, said in the case of Pruitt v. International Order of Twelve, Knights & Daughters of Tabor 158 Ark. 437, 250 S. W. 331, that (Quoting syllabus 3): “Certiorari ought not to issue in any case where there is or has been a right of appeal, unless the right of appeal has been lost without.fault of the petitioner.”
The general rule is that certiorari is not a writ of right, but a writ of discretion, and unless it clearly appears that the trial court abused its discretion in denying the application for a writ of certiorari this court will not correct on appeal the exercise of the trial court’s discretion in either denying or allowing the application for this extraordinary remedy. In other words, unless it appears that the trial court has abused his descretion this court will not reverse the action of the trial court in denying the application for such a 'writ.
We have concluded that the application of appellant for the writ in the instant case was not timely. It cannot be said that his suit in the chancery court to correct and surcharge the account of appellee was not a proper proceeding. Such a suit was available to him and would have afforded him full and complete relief had he prosecuted same, but instead he took a non-suit without disclosing any reason whatever for doing so.
We cannot sa.y that the trial court abused its discretion in dismissing the petition for a writ of certiorari. No error appearing’, the judgment is affirmed.
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RITA W. GRUBER, Judge
|, Ruth Newkirk and David Newkirk appeal from an order of the Lonoke County Circuit Court deferring jurisdiction over an adoption matter to a court in DeSoto County, Mississippi. The issue on appeal is whether the circuit court abused its discretion in determining that Lonoke County, Arkansas, was an inconvenient fo.rum and that DeSoto County, Mississippi, was a more appropriate forum. We hold that the circuit court did not abuse its discretion; accordingly, we affirm.
David Newkirk is the parent of two minor children: REN (born 7/25/06) and JGN (born 8/21/08). Ruth Newkirk is David’s mother and the children’s grandmother. In August 2009, David arid his then-wife Tiffany, the children’s mother, were incarcerated, and an order of guardianship over the children was entered by the Lonoke County Circuit Court appointing the children’s great aunt and uncle, Claressa and Jeffrey Davis, as their guardians. In 2013, the Davises requested that successor guardians be appointed. On May 17, 2013, the |2co.urt appointed Shannon and Rocky. Burton, appellees, as guardians over REN and another couple as guardians over JGN. REN has , lived with the Burtons in Mississippi since February 2013,
On March 31, 2014, almost-a year after the Burtons were appointed guardians over REN,- Ruth filed a motion to establish visitation with REN. The Burtons' filed a motion to dismiss Ruth’s motion, alleging ■that she-had never been granted interve-nor status in the guardianship action and therefore had no standing to request visb tation. They also stated that. REN had lived in Mississippi for over a year, that there was currently pending a Petition for Termination of Parental Rights and Adoption in DeSoto County, Mississippi, that Tiffany had had no contact with REN since March 2011, that David was not eligible for parole until January 2020, and that neither parent had provided any financial support for REN since 2009. Finally, they alleged that Mississippi was REN’s home state and requested that the matter be heard there. The Burtons also filed a brief asking for a change in jurisdiction.
In their brief, they recognized that Arkansas had established initial child-custody jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) pursuant to Ark. Code Ann. § 9-19-201 in 2009 with the initial order of guardianship and had continuing jurisdiction pursuant to Ark. Code Ann. § 9-19-202 in 2013 when it changed REN’s guardians to the Burtons. But they argued that, since neither the child nor the child and either a parent or “a person acting as a parent” had a significant connection with Arkansas and that neither parent or REN’s grandmother had visited REN, Arkansas no longer had continuing jurisdiction under section 202. See Ark. Code Ann. § 9-19-202(a)(1) (Repl. 2009), [^They also argued that even if Arkansas had continuing jurisdiction, Arkansas was an inconvenient forum under Ark. Code Ann. § 9-19-207. They alleged that the court in Mississippi had stayed the adoption proceedings until Arkansas settled the jurisdiction issue, and they requested the court to decline to exercise jurisdiction in favor of the Mississippi court.
On October 21, 2014, the court entered an order finding that Ruth had not been granted intervenor status in the guardianship and thus the court had no authority to hear her motion to establish visitation. The court indicated its willingness to hear the matter if Ruth elected to refile — -which she did. On October 22, 2014,. Ruth filed a motion to intervene and a, motion to establish visitation. The next day, the Burtons filed a motion to transfer jurisdiction, essentially restating their arguments from their earlier brief. They again stated that the Arkansas court was no longer the proper court; that matters relating to REN should be heard in Mississippi; that no significant connection to Arkansas existed; and that all of the evidence relating to REN’s care, protection, relationships, and education were in Mississippi.
After a hearing during which Ruth, David, and Ms. Burton testified, the court entered an order on December 29, 2014, finding that, pursuant to the factors set forth in Ark. Code Ann. § 9-19-207, Lonoke County, Arkansas, was an inconvenient forum to consider the adoption petition and deferred the matter to DeSoto County, Mississippi, which it determined was “better situated to consider the nature of the evidence in the adoption matter and has the ability to decide the issues expeditiously.” The circuit court stayed the guardianship proceedings regarding the child until completion of the adoption proceedings in Mississippi. RThe court stated that if the adoption petition were denied, “then the guardianship set forth by this Court shall remain in full force and effect and jurisdiction shall revert to this Court.”
We review a circuit court’s determination to decline to exercise jurisdiction for abuse of discretion. Wilson v. Beckett, 95 Ark. App. 300, 304, 236 S.W.3d 527, 530 (2006). The UCCJEA is the exclusive method for determining the proper state for jurisdictional purposes in child-custody proceedings that involve other jurisdictions, See Greenhough v. Goforth, 354 Ark. 502, 507, 126 S.W.3d 345, 349 (2003).
In cases such as this one, where the court entered the initial child-custody determination, the UCCJEA provides as follows:
(a) Except as otherwise provided in § 9-19-204, a court of this state which has made a child-custody determination consistent with § 9-19-201 or § 9-19-203 has exclusive, continuing jurisdiction over the determination until:
(1) a court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant' connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
(2) a court of this state or a court of another state determines that the child, the child’s parents, and any per: son acting as a parent do not presently reside in this state.
Ark, Code Ann. § 9-19-202(a) (Repl. 2009).
Although the Burtons argued that the court did not have continuing jurisdiction under section 202, the court did not make that finding. However, a court that has jurisdiction may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is'a more appropriate forum. Ark. Code Ann. § 9-19-207 (Repl. 2009). That is precisely what the circuit court in this case | ¿determined.
Appellants argue that the court abused its discretion in declining to exercise jurisdiction in this case. They contend that, before the Burtons were appointed as guardians, neither REN nor any of her “blood relatives” had lived in Mississippi. They argue that all of her relatives still live in Arkansas. They also contend that it will be difficult for a Mississippi court to consider the factors involving termination of David’s parental rights because he is incarcerated in Arkansas and all evidence regarding him is in Arkansas.
The Burtons have filed a petition for adoption in Mississippi where both they and REN. live and had lived for two years at the time of the hearing. Although the matter will necessarily .involve the termination of David’s parental rights if an adoption is granted, the adoption case principally concerns REN and her best interests. The guardians live in Mississippi and REN had lived in Mississippi for two years at the time of the hearing, where she attends school and therapy. All of the evidence concerning REN’s care, education, protection, health, and personal relationships is in Mississippi. David has been incarcerated since 2009 and has had minimal contact" with REN since that time. He has had no contact since February 2013, when REN moved to Mississippi with the Burtons. He is not eligible for parole until 2020. Tiffany’s whereabouts were unknown at the time of; the hearing, and she has had no contact with REN since March 2011. Neither David, Tiffany, or Ruth have provided any financial support since 2009, when the first guardianship was instituted. Although it might be easier for David were the proceedings to remain in Arkansas, it would be a hardship for the Burtons, REN, and those persons in Mississippi providing testimony | fiabout REN’s care. Indeed, an Arkansas court would have no jurisdiction over an adoption proceeding concerning REN since neither she nor the petitioners are residents of Arkansas. See Ark. Code Ann. § 9-9-205(a)(1) (Supp. 2013). The circuit court stated that, in the event the Mississippi court did not find the adoption to be in REN’s best interest,' jurisdiction would revert back to Arkansas and the court would continue to exercise jurisdiction over the guardianship. After reviewing the record in this case, we hold that the circuit court did not abuse’its discretion'in declining to exercise jurisdictiort over the adoption petition.
Affirmed.
Gladwin, C.J., and Harrison, J., agree.
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HOWARD W. BRILL, Chief. Justice
1, Appellant Mark Aaron Luper appeals the order denying his petition for postcon-viction relief. Luper was convicted by a Benton County jury of the rape, of his former stepdaughter, S.H., and sentenced to twenty-three years’ imprisonment in the Arkansas Department of Correction. Lu-per appealed, and the -court of appeals affirmed. See Luper v. State, 2015 Ark. App. 440, 468 S.W.3d 289. Thereafter, Lu-per filed a petition for Lpostconviction relief pursuant to Arkansas Rule of Civil Procedure 37.1, in which he asserted eleven claims of ineffective assistance of trial counsel. The circuit court denied the petition without a hearing. For reversal, Lu-per contends that he was entitled to an evidentiary hearing on five of the claims in his petition. Luper asserts that trial counsel was ineffective (1) for failing to call a witness to corroborate his defense that the “false” allegation of rape was a means for Robin Luper, the victim’s mother, to obtain leverage in her divorce action against him, (2) for not adequately exploring Robin’s “financial demands and obligations,” (3) for failing to show the jury videos depicting S,H. and him at Walmart the day after the rape, (4) for failing to obtain S.H.’s phone records, and (5) for failing to dispute S.H.’s claim that her sister, H.H., had never attended car shows with him. We affirm the circuit court’s order.
This court does not reverse a denial of postconviction relief unless the circuit court’s findings are clearly erroneous. E.g., Turner v. State, 2016 Ark. 96, 486 S.W.3d 757. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Id., 486 S.W.3d 757. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. E.g., State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830.
IsOn review of claims of ineffective assistance of counsel, this court follows the standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient arid (2) the deficient performance prejudiced his defense. E.g., Doty v. State, 2016 Ark. 341, 2016 WL 6123441.
Under the performance prong of the Strickland test, the petitioner must show that counsel’s performance was, deficient. E.g., Decay v. State, 2014 Ark. 387, 441 S.W.3d 899. This factor requires a showing that trial counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Id., 441 S.W.3d 899. The courts acknowledge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assis tance. See, e.g., Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. Accordingly, the petitioner has the burden of overcoming this presumption by identifying specific acts or omissions of counsel, which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id., 403 S.W.3d 55.
Under the prejudice, prong of Strickland, even if counsel’s conduct is shown to be professionally unreasonable, the judgment will stand unless the petitioner can demonstrate that the error had an actual prejudicial effect on the outcome of the proceeding. E.g., Lee v. State, 2009 Ark. 255, 308 S.W.3d 596. In short, the petitioner must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See id., 308 S.W.3d 596 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). A | ¿reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. E.g., Doty, 2016 Ark. 341.
“Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700, 104 S.Ct. 2052. Accordingly, we need not address the Strickland components in a particular order or even address both components of the inquiry if the petitioner makes an insufficient showing on one. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052. The Court has stated that “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id.
I. Financial Motive
Luper first contends that counsel was ineffective for failing to call Charles Mayhew to testify during the guilt phase of the trial. According to Luper, Mayhew would have testified that Robin “had made a statement concerning the sale of Luper’s 1967 Camaro to the effect that when it sold, she would ‘have everything I need.’ ” Luper contends that this testimony would have bolstered his assertion that the “false” allegation of rape was a means for Robin to “obtain leverage” in her divorce action against him.
Robin testified that, since 2005, she and Luper had lived together with her three children, Luper’s youngest son from a previous marriage, and a child that she and Luper had together. She stated that she and Luper divorced in 2013 and that she was not better off financially after the divorce than she was when she and Luper were married. She testified [fithat their furniture, televisions, and appliances were sold at auction and that she and Luper split the proceeds from the auction evenly.
Robin stated that the house was in both her name and Luper’s name. She testified that she will live in the home until the child she and Luper have together turns eighteen. Robin stated when that child turns eighteen, the house will be sold, and she and Luper will split the' proceeds equally. She also stated that, because she lives in the home rent-free, Luper is not obligated to pay child support for their child. Robin denied that the rape charge had benefited her family.
Robin testified that Luper’s oldest son died in December 2010 while in the Army and that Luper was the beneficiary of his son’s $500,000 military life insurance policy. She stated that, with that money, she and Luper paid off their mortgage, bought a new Yukon vehicle, bought her parents a car, bought cars for S.H. and Luper’s teen aged son, and gave money to the widow of Luper’s deceased son and to his sons’ grandparents. Robin testified that she and Luper had built an addition to their house and installed an above-ground swimming pool. She denied that she thought that “things might be different if [Luper] was in prison for 30 or 40 years rather, than going through the divorce process as a free man.” Robin stated that Luper’s incarceration “didn’t get me anything ... and actually made it harder.”
Luper testified and confirmed Robin’s testimony about how the insurance money had been spent. He further testified that he had bought himself a 1967 Camaro for $28,500.
|fiS.H. testified that Luper’s arrest did not help her financially. She said that, when Luper left the household, he took the ear he had given her. According to S.H., she no longer had money to pay for college as she had before Luper was arrested.
Luper maintains that Mayhew’s testimony would have disputed Robin’s testimony that there was no financial motive for S.H. to claim that Luper had raped her. The State points out that Mayhew testified on Luper’s . behalf during the sentencing phase of the trial and said that he is a friend of Luper’s. The State contends that Mayhew would be biased because of his friendship with Luper and that anything Robin might have said to Mayhew about selling the Camaro would not prove that she expected her financial issues to be resolved from the sale of the vehicle.
The jury determines not only the credibility of witnesses, but also the weight and value of their testimony. See, e.g., Jones v. State, 2014 Ark. 448, 486 S.W.3d 743. Mayhew’s testimony may have had an adverse effect on Robin’s credibility. On the other hand, the jury might have dismissed Mayhew’s testimony, given his friendship with Luper. In short, the jury might not have resolved the credibility determination in Luper’s favor.
When assessing counsel’s decision not to call a witness, we must take into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate. E.g., Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. The fact that there was a witness who could have offered beneficial testimony is not, in and of itself, proof of counsel’s ineffectiveness. Id., 385 S.W.3d 228. Luper has failed to show that, had counsel presented Mayhew’s testimony, the outcome of the trial would have been different. See Moten v. State, 2013 Ark. 503, 2013 WL 6327549 (per curiam). Thus, he has failed to satisfy the prejudice prong of Strickland. The circuit court did not err in denying relief on this claim.
II. Financial Demands
In a corollary argument, Luper contends that * counsel was ineffective for failing to adequately explore Robin’s “financial demands.” He claims that, had counsel asked Robin about her demands that he sign over the house and automobiles to her, there is a reasonable probability that the outcome of the trial would have been different. We disagree.
Luper testified that the day after the rape allegation had been made, he and Robin began negotiations for their divorce. He stated that he refused to sign over the house, cars, and household furnishings to Robin. He further stated that he refused to pay the household debts. Robin testified that the household furnishings were auctioned with the proceeds split equally between Luper and her. She also testified that when the house is sold, she and Luper will split the proceeds evenly.
Robin testified at length about financial matters on both direct and cross-examina tion. Luper’s attorney specifically asked Robin if she “thought that things might be different if [Luper] was in prison for 30 or 40 years rather than going through the divorce process as a free man,” and she responded that she had not benefited financially from Luper’s being in jail.
Trial counsel told the jury in opening statement that the case was not about rape allegations but was about money. In closing argument, trial counsel stated that the allegations were a “money motivator” for Robin. The jury heard testimony about the Lupers’ finances and divorce. Luper has failed to demonstrate that additional questioning about Robin’s | R“demands” would have had any effect on the outcome of the trial. The circuit court did not err in denying relief on this claim.
III.Walmart Videos
Luper’s remaining arguments involve evidentiary matters. He asserts that counsel was ineffective for failing to present at trial videos from Walmart showing that Luper and S.H. were together the day after the rape. Luper acknowledges that both he and S.H. testified that they went to Walmart together that day, but he asserts that the videos should have been presented to show S.H.’s demeanor. The State responds that neither S.H. nor Lu-per testified that S.H.’s demeanor was. other than normal, and that in the absencq of testimony that S.H. displayed fear or emotion while at Walmart, there was nothing for the videos to rebut.
This court will not grant an evi-dentiary hearing on an allegation that is not supported by specific facts from which it can be concluded that the petitioner suffered some actual prejudice. E.g., McDaniels v. State, 2014 Ark. 181, 432 S.W.3d 644. Here, the video evidence would have been cumulative to testimony about the trip to Walmart. Luper has failed to show that the outcome of the trial would have been different if counsel had presented the videos. See, e.g., Simpson v. State, 355 Ark. 294, 138 S.W.3d 671 (2003) (stating that the omission of cumulative evidence does not deprive the defense of vital evidence). The circuit court did not err in denying relief on this claim without a hearing.
IV.Phone Records
Luper contends that counsel was ineffective for failing to obtain S.H.’s phone records. He claims that, if counsel had procured the records, he could have shown the jury that S.H. |awas using her phone when the rape occurred and that the phone contained text messages in which Robin had encouraged S.H. to falsely allege that he had raped her.
Luper does not offer any proof that exculpatory evidence could have been found in the phone records. Nevertheless, he claims that if a. hearing is held, he will have subpoena power to obtain and present the records. The strong presumption in favor of counsel’s effectiveness cannot be overcome by a mere possibility that, an evidentiary hearing might produce evidence to bolster an allegation, contained in a petition for postconviction relief. E.g., McDaniels, 2014 Ark. 181, 432 S.W.3d 644; see also Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983) (per curiam) (stating that Rule 37 is not available to the petitioner who wishes to have a hearing in the hopes of finding some ground for relief). The circuit court did not err in denying relief on this claim without a hearing.
V.Car Shows
, Finally, Luper contends that counsel was ineffective for failing to ask H.H., S.H.’s sister, if he ever took her to car shows and for not calling his aunt and his brother to testify that he had taken H.H. to car shows.. He states that this testimony would rebut the implications that he was singling out and isolating S.H. so that he could molest her.
H.H. testified and was excused before S.H. was called. H.H. was not asked whether she had attended ear shows with Luper. S.H. testified that she did not “think” H.H. had ever gone to car shows with Luper. Lúpér testified that he had taken H.H. to at least four car shows'. Any additional testimony would have been cumulative to Luper’s assertion that he had taken H.H. to car shows. The failure to call witnesses whose testimony would be cumulative to testimony already presented does not deprive the defense of vital evidence. Eg., Bond v. State, 2013 Ark. 298, 429 S.W.3d 185 (per curiam). Luper’s failure to demonstrate prejudice precludes relief under Rule 37. E.g., Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002). The circuit court did not err in denying Luper relief on this claim.
VI. Hearing
In conclusion, we disagree with Luper’s contention that he'was entitled to a hearing. An evidentiary' hearing is required unless the petition and the files and records of the case conclusively show that the petitioner is not entitled to relief. Ark. R. Crim. P. 37.3(a). Having reviewed the petition and the files and records of the case, we conclude that Luper is not entitled to postconviction relief. The circuit court did not err in denying Luper’s petition without a hearing.
Affirmed.
. The underlying facts leading to Luper’s conviction were set forth in detail in Luper, 2015 Ark. App. 440, 468 S.W.3d 289. Briefly, S.H. testified that late on the evening of June 11, 2012, or early in the morning on June 12, she had fallen asleep on the couch while she and Luper watched a movie. She stated that she awoke with an intense pain in her vagina and abdomen, that she felt Luper’s hand on the inside of her leg, and that her inner thigh was wet, Although she had initially told her mother and investigators that Luper had inserted his finger into her vagina that night, she later revealed and testified that she believed he had actually inserted his penis. Seminal fluid was found on S.H.'s sleeping shorts, the underwear she was wearing that night, and the underwear she was wearing the next day. Sperm cells were found on the inner crotch area of both pairs of underwear, and semen was found on the thigh area of the shorts. Testing revealed that Luper was a major DNA contributor to the sperm cells and the semen.
. Luper does not challenge the circuit court’s rulings on the six other claims raised in his petition. Claims raised below but not argued on appeal are considered abandoned. E.g., Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824 (per curiam).
. To avoid confusion, we will refer to Robin Luper by her first name.
. Mayhew testified for Luper in the sentencing phase of the trial.
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JOSEPHINE LINKER HART, Associate Justice
| tThis is a companion case to Strawhacker v. State, 2016 Ark. 348, 500 S.W.3d 716. As in Strawhacker, Eugene Issac Pitts’s petition for postconviction relief arises from repudiated trial testimony of FBI lab technician Michael Malone, a forensic hair analyst.
Pitts was convicted of capital felony murder for the slaying of Dr. Bernard Jones, committed in the course of a kidnapping. On June 29, 1981, Pitts’s conviction was affirmed on direct appeal. Pitts v. State, 273 Ark. 220, 617 S.W.2d 849 (1981). Pitts now asks this court to reinvest jurisdiction in the trial court so that it may consider a writ of error coram nobis, writ of audita querela, or other relief based on newly discovered evidence. The newly discovered evidence at issue is the Department of Justice’s (DOJ) repudiation of the evidence provided by Malone at Pitts’s trial. We grant Pitts’s petition to reinvest jurisdiction in the trial court to pursue a writ of error coram nobis or other relief.
In rejecting a challenge to the sufficiency of the evidence in Pitts’s direct appeal, this court summarized the evidence presented at trial as follows:
|g[T]he State’s proof established Pitts’s motive for murdering Dr. Jones and his various threats to do so. Mrs. Jones’s statements to the police and her testimony at the trial had minor inconsistencies, but there was no variance so great as to weaken her positive identification of Pitts as the intruder in her home. The FBI testimony about the hair definitely puts Pitts in contact with Dr. Jones. Pitts left the Jones house in [Dr. Jones’s] Land Cruiser with Dr. Jones and the stolen articles. The body and articles were in the vehicle the next morning. Mrs. Stanley’s timing of the arrival of the Land Cruiser was contradicted by Mark Musgrave and his mother. Only about three hours after the murder Pitts was unable to account for his earlier whereabouts.
Pitts, 273 Ark. at 226, 617 S.W.2d at 852. It also summarized Malone’s testimony:
Dr. Jones’s clothing was sent to the FBI laboratory for examination. An expert witness, Mike Malone, testified that he found several Caucasian hairs and a brown Negroid hair on the clothing. The Negroid hair, when examined with a microscope, had 20 different characteristics. Sample specimens of Pitts’s hair had exactly the same 20 characteristics. Malone testified that as part of a test to qualify as an FBI examiner he was given 50 hairs from 50 different persons. He was also given another 50 hairs from the same persons, but they were all mixed up. He passed the test by matching all 50 pairs correctly, with no mistakes. He said that in his nine years’ experience the only way he had seen hairs match the way they did in this instance was when in fact they came from the same person. He testified that his identification was not absolutely positive, like a fingerprint. The jury, however, could certainly have relied upon it in returning a verdict of guilty.
Id. at 224-25, 617 S.W.2d at 851-52.
Following his conviction and direct appeal, Pitts vigorously pursued his state and federal court remedies but failed to get relief. Pitts’s last effort was in 2011, when he filed |3a habeas petition pursuant to Arkansas Code Annotated section 16—112— 201 et seq., alleging actual innocence. Pursuant to the statute, DNA testing was performed on the only hair with a follicle collected from the crime scene and the victim’s body. The nuclear DNA test that was performed was inconclusive. Pitts moved to have mitochondrial DNA testing performed on other hairs, but that request was denied by the circuit court, and this court affirmed. Pitts v. State, 2011 Ark. 322, 2011 WL 3930396 (per curiam). The sample that was selected for mitochondrial DNA testing was lost during the time that Pitts appealed the circuit court’s denial of his request for additional testing, and. it has yet to be found.
Meanwhile, in 1996, the FBI responded to allegations of improper practices by certain FBI laboratory technicians by forming a task force to ensure that no criminal defendant’s right to a fair trial had been compromised. After reviewing Pitts’s case, the task force determined that Pitts’s trial had been tainted by Malone’s testimony. In 2014, the DOJ sent letters to Pitts, the prosecuting attorney, the public defender, and the Innocence Project informing the recipients that Malone was one of thirteen examiners whose work in hair analysis failed to meet professional standards. In a letter dated February 4, 2016, the DOJ advised the prosecuting attorney of the Sixth Judicial District that “we have determined that a report or testimony regarding the microscopic hair comparison-analysis containing erroneous statements was used in this ease.... We ask that you determine the actions your office should take in light of this error.” Pitts received- a copy of this letter from the DOJ in a letter dated April 2, 2015. The DOJ and the FBI review concluded that there were three types of errors in Malone’s testimony:
|4(1) [T]he examiner stated or implied that the evidentiary hair could be associated with a specific individual to the exclusion of all others—this type of testimony exceeded the limits of the science;
(2) the examiner assigned to the positive association a statistical weight or probability or provided a likelihood that the questioned hair originated from a particular source, or an opinion as to the likelihood or rareness of the positive association that could lead the jury to believe that valid statistical weight can be assigned to a microscopic hair association—this type of testimony exceeded the limits of the science; or
(3) the examiner cites the number of cases or hair analyses worked in the laboratory and the number of samples from different individuals that could not be distinguished from one another as a predictive value to bolster the conclusion that a hair belongs to a specific individual—this type of testimony exceeded the limits of the science.
The prosecutor from the Sixth Judicial District conceded that Malone’s work was material to Pitts’s conviction.
As noted previously, Pitts has asserted in his petition that this court could grant him postconviction relief in accordance with several different legal modalities. For the reasons stated in Strawhacker v. State, 2016 Ark. 348, 500 S.W.3d 716, we reinvest jurisdiction in the trial court and grant Pitts permission to seek relief via a writ of error coram nobis.
As we stated in Strawhaeker, “The function of the writ of error coram nobis 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 judgment.... The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature.” The writ is available to “fill a gap in the legal system—to provide relief that was not available at trial because a fact exists which was not known at that time and relief is not available on appeal because it is not in the record.” Id. at 719 (citing Penn v. State, 282 Ark. 71, 670 S.W.2d 426 (1984)).
Petition granted'.
Danielson and Goodson, JJ., concur in part and dissent in part.
. Although the intrader wore a mask, Mrs. Jones identified him as Pitts, whom she had known for several years.
. Pitts v. State, CR-80-40 (Ark. Feb. 1, 1982) (unpublished per curiam) (Rule 37 relief denied); Pitts v. Lockhart, 753 F.2d 689 (8th Cir. 1985) (first federal habeas petition denied); Pitts v. Lockhart, 911 F.2d 109 (8th Cir. 1990) (second federal habeas petition denied); Pitts v. Norris, 85 F.3d 348 (8th Cir. 1996) (third federal habeas petition denied); Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (petition to proceed with a writ of error coram nobis denied); Pitts v. State, CR-80-40 (Ark. May 18, 2000).
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WAYMOND M. BROWN, Judge
| ¶Appellant Victoria Jane Fleming, in her capacity as personal representative of the estate of her deceased husband, Scott James Fleming, appeals the August 15, 2013 order of the Garland County Circuit Court granting summary judgment in favor of appellee, Dr. Kenneth Vest, M.D. This case has reached our court twice before, but we were forced to remand to supplement the record and for lack-of a final order. Having found that appellant has cured the deficiencies that have kept us from considering the case earlier, we now address the merits of her appeal.
On April 19, 2010, Sam Lands shot and killed appellant’s husband, Scott Fleming. Three years earlier Lands had been found not guilty of charges including battery, escape, resisting arrest, assault, and fleeing, by reason of mental disease or defect. He was treated at 12the state hospital and then granted a five-year conditional release. Soon thereafter, with the approval of his initial treatment team, he transferred his treatment, provider and residence to Community Counseling Services, Inc. (CCS) in Garland County. There he was diagnosed with bipolar .disorder and began treatment. In 2009, appellee became his treating psychiatrist.and, in order to determine the appropriate medication regimen, began to withdraw the, level of pharmaceuticals administered to Lands. The final time appellee met with Lands before the death of Scott Fleming was on February 24, 2010.
On August 16, 2011, appellant filed a wrongful-death action against Lands, his parents, CCS, and its insurer. On April 19, 2012, exactly two years after the death of her husband, appellant amended her complaint to include appellee as a defendant. He answered and moved for summary judgment, arguing that appellant’s claim was barred by the two-year statute of limitations set forth in the Arkansas Medical Malpractice Act and that such a period began to run on the date he last met with Lands. Appellee also adopted a summary-judgment motion filed by CCS alleging that appellant’s claims were barred by the doctrine of quasi-judicial immunity. Conversely, appellant argued that the two-year limitations period did not apply because her husband had been a third-party nonpatient, or alternatively, that she filed within the statutory period because it began to run on the day she acquired standing, when her husband was killed., She further argued that the statutory period was tolled because appellee was engaging in a continuous course of treatment with Lands. Finally, she contended that issues of fact remained which prevented granting the motion for summary judgment on the grounds of quasi-judicial immunity. Following a [shearing on the matter, the circuit court granted appellee’s motions for summary judgment and dismissed all claims against him.' This appeal followed.
Our standard of review for summary judgment cases is well established. Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. We no longer refer to summary judgment as a drastic remedy and now simply regard it as one of the tools in a trial .court’s efficiency arsenal. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party, in support of the motion leave a material fact unanswered. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Moreover, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence.
Appellant first argues that it was error for the circuit court to consider her claim under medical-malpractice statutes because her husband, the victim, was not appellee’s patient. Rather, she contends her .claim arises from the Restatement (Second)" of Torts, which states as follows:
One who takes charge of third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
| ¿Her position is that' because her husband was not one of appellee’s patients, she could not pursue a claim- for medical malpractice. She cites Thompson v. Sparks Regional Medical Center as standing for the proposition that , a nonpa-tient can never pursue a claim for medical malpractice. . This is a misreading. In Thompson, the plaintiff suffered injuries as the result of a motorcycle accident and immediately sought emergency treatment at St. Edward hospital. St. Edward was unable to render emergency aid to Ms. Thompson because no plastic surgeon was at the. hospital at the time. She allegedly expressed a willingness to then transfer to Sparks Regional Medical Center, but never arrived there. She brought suit against St. Edward, Sparks, and multiple other parties under the Emergency Medical Treatment and Active . Labor Act (EMTALA) and Arkansas’s medical malpractice laws. The circuit court granted summary judgment in favor of Sparks because Ms. Thompson never went to the hospital for treatment. In affirming, the court of appeals reasoned that the definition of “medical injury” within our medical-malpractice law required that actual professional services be rendered in order for there to be a basis for a claim of malpractice. Because no professional services were rendered by Sparks and" because Ms. Thompson never went to that hospital for treatment, no professional services were rendered by which she could sue for malpractice. Thompson does not stand for the proposition that nónpatients are unable to sue for malpractice."
On the contrary, this analysis in Thompson actually supports appellee’s contention that -the death of Scott Fleming qualified as a “medical injury” and therefore, fell under the | Kauspices of medical malprac tice. An “action for medical injury” is “any -action against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury.” The statute defines “medical injury” very broadly:
(3) “Medical injury” or'“injury” means any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider to a patient or resident; whether resulting from negligence, error, or omission in the performance of such services;' or from rendition of such serviced without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services;' or otherwise arising out of or sustained in the course of such services.
Here, the allegation was that Scott Fleming’s death occurred because of the professional services (or lack thereof) being provided to Samuel Lands by appellee. In recognizing the breadth of the definition of “medical injury,” our supreme court has made it clear that a nonpatient third party may sue a medical care provider for injuries sustained as a result of a patient’s improper treatment. Accordingly, we find that Scott Fleming’s death was a “medical injury” and falls under the Arkansas Medical Malpractice Act.
Because we have discerned the correct nature of the claim, we must now decide whether such a claim was barred by the medical-malpractice two-year statute of limitations.
|fí(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 accrual of the cause of action shall be the date of the wrongful act complained of and no other time.
This court reviews the circuit court’s statutory interpretation de novo, because it is for this court to determine the meaning of a statute. The first rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. We construe statute so that, if possible, every word is given meaning and effect. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, it is unnecessary to resort to the rules of statutory construction. When a statute is clear, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Statutes relating to the same subject should be read in a harmonious manner' if possible.
Here,' the circuit court granted summary judgment citing appellee’s argument that the statute-of-hmitations period began the date of his last visit with Lands, February 24, 2010, rather than the date of Scott Fleming’s death. Had the statutory period begun on April 19, 2010, her claim would be timely and would not be barred by the statute of limitations. She contends that there is a disconnect in the statutory language as it applies to patients versus nonpatients like her husband. Under the circuit court’s- interpretation, the statute of limitations began-to accrue ‘over one and oñe-hálf months before Lands ever shot Scott Fleming.' She correctly points out on appeal that had she filed her claim'prior to her husband’s'death, her husband would have had no relationship to appellee, he would not |7have been injured due to appellee’s negligence, and the claim would have no possibility of surviving in court.
Although appellant’s argument appears to have much -merit, our case law tends to support the position of appellee, that the cause of action began to accrue at the.time of his last visit with Lands. In order to overcome this hurdle, appellant argues that the statute of limitations was tolled by the continuous-course-of-treatment exception. This exception tolls -the statute of limitations in medical-malpractice cases where there is medical negligence “followed by a continuing course of treatment for the malady which was- the object of the negligent treatment or act.” Our supreme court has further defined the exception:
[I]f the treatment by the doctor is a continuing course and the patient’s illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care,, the statute does not commence running until treatment by the doctor for the particular disease , or condition has terminated — unless during treatment the patient learns or should learn of negligence, in which case.the statute runs from the time of discovery, actual or constructive. , ,
The record in the case at bar contains several instances, many included in the appellant’s brief, where a jury might determine that appellee was engaged in a continuous course of treatment:
18Appellee became Lands’s actual treating psychiatrist in January 2009, and he expected to treat Lands for two years. As treating psychiatrist, appellee saw Mr. Lands on February 24, 2010. His progress note from that day listed Lands’s diagnosis as Bipolar I Disorder and set future treatment goals for the disorder; listed multiple objectives that were to occur within ninety (90) days, or by May 24, 2010.
Appellee testified that he did not intend to- abandon- Lands after the February 24, 2010 visit; that he continued to monitor Lands after the visit; and that he had an appointment scheduled with Lands sometime after April 19, 2010. Courtney Bishop, Lands’s primary therapist at CCS, testified that, at the time of the shooting, she and appellee were still in the process of deciding-what the medication regimen for Lands’s condition should be..
Appellee executed a Master Treatment Plan/Certification of Serious Mental Illness for Lands on April 28, 2010, after Scott Fleming’s death. In it, he stated that continuous treatment of the disorder was appropriate and- medically necessary. ■
The circuit court failed to ‘ construe the foregoing facts in appellant’s favor, which is required when determining whether to grant a motion for summary judgment. These facts concern a material issue in deciding if summary judgement is justified as a matter of law, and a jury could find that the treatment was continuous, and therefore, appellant filed her claim within the statutory period. •• Because material facts are in dispute -as to whether appellee continuously treated Lands, summary judgment based on the statute of limitations was inappropriate. We reverse the grant of summary judgment based on the two-year statute of limitations.
In addition to granting the motion for summary judgment based on the statute of limitations, the circuit court also granted summary judgment in favór of appellee on a theory of quasi-judicial immunity by finding that appellee was a quasi-judicial officer. ^Whether immunity from suit exists is a question of law for the courts. We review- Questions of law de novo, as the circuit court is in no better position than we are to answer a- question of law.
In Chambers v. Stern, the Arkansas Supreme Court stated that a “court-appointed physician is entitled to judicial immunity so long as he is serving an integral part of the judicial process, by carrying out and acting within the - scope of the court’s order,” The physician in Chambers was ordered by the divorce court to meet, evaluate, and counsel the divorcing parties and their children; to report his findings, observations, and recommendations to the court; and to direct the divorcing parties’ visitation with their children pending further order. Appellee’s sole argument to support that , he was acting as an “arm of the court and performing a quasi-judicial function” is that the original court order became applicable to CCS after Lands transferred. The court orders never identify appellee, and he confirmed in his deposition that he never communicated with the circuit court. In light of our de novo review, we do not find that appellee is protected by judicial immunity as a matter of law.
Viewing the evidence in the light most favorable to appellant, resolving any doubts against- appellee, we hold that the circuit court erred in finding that appellee was entitled to judgment as a matter of law. • '
| inReversed and remanded.
Abramson, J., agrees.
Harrison, J., concurs..
. Fleming v. Vest, 2014 Ark. App. 327, 2014 WL 2157624; Fleming v. Vest, 2014 Ark. App. 600, 2014 WL 5474799.
. Ark.Code Ann. Title 16, Chapter 114.
. Harvest Rice, Inc. v. Fritz and Mertice, Lehman Elevator and Dryer, Inc., 365 Ark. 573, 575-76, 231 S.W.3d 720, 723 (2006) (internal citations omitted). -
. Restatement (Second) of Torts § 319.
. 2009 Ark. App. 190, 302 S.W.3d 35.
. Id. at 38.
. Ark.Code Ann, § 16-114-201(1) (Supp. 2015).
. Ark.Code Ann. § 16-114-201(3).
. See Dodson v. Charter Behavioral Health Sys. of Nw. Ark., Inc., 335 Ark. 96, 983 S.W.2d 98 (1998) (stating that medical malpractice "lay at the very heart” of the plaintiff’s claim when decedent was killed by a suicidal driver which went undiagnosed at the moment because of a breakdown in communication between the defendant hospital and patient).
. Ark.Code Ann. § 16—114—203(a), (b).
. Roberson v. Phillips. Cnty. Election Comm’n, 2014 Ark. 480, at 4, 449 S.W.3d 694, 696 (internal citations omitted).
. See Raynor v. Kyser, 338 Ark. 366, 993 S.W.2d 913 (1999) (holding that a patient's cause of action against a doctor for medical negligence in failure to properly diagnose accrued at the time of the patient's last postoperative follow-up examination, as opposed to her treatment five months later with the same doctor for complaints for which she never before had sought treatment).
. Tullock v. Eck, 311 Ark. 564, 571, 845 S.W.2d 517, 521 (1993).
. Pledger v. Carrick, 362 Ark. 182, 188-89, 208 S.W.3d 100, 103 (2005).
. Chambers v. Stern, 338 Ark. 332, 338, 994 S.W.2d 463, 466 (1999).
. Curley v. Old Reliable Cas. Co., 85 Ark, App. 395, 155 S.W.3d 711 (2004).
. Chambers, supra.
. Id.
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RAYMOND R. ABRAMSON, Judge
11 Javier Maciel appeals his conviction for second-degree sexual assault of his stepdaughter, Y.C. On appeal, Maciel argues that the circuit court erred in admitting into evidence other sexual acts pursuant to the pedophile exception because (1) the acts occurred after the charged crime; and (2) the pedophile exception deprived him of equal "protection of the laws. "We affirm.
On December 16, 2014, the State charged Maciel with second-degree sexual assault of Y.C. that occurred between January 1, 2012, and November 1,. 2014. Y.C. had reported that on multiple occasions throughout that time period,. Maciel had entered her bedroom during the night and rubbed her vaginal area.
On September 4, 2015, Maciel filed a motion in limine. He informed the court that the State planned to introduce testimony at trial that Maciel had penetrated Y.C.’s vagina with his finger on two occasions while they were on a trip to Mexico. He asked the court |2to exclude the evidence because (1) the acts occurred outside the court’s jurisdiction; (2) the acts were not similar to the charged crime; (3) the acts did not uniquely identify Maciel; (4) the testimony was inadmissible under Arkansas Rule of Evidence 403 (2015); and (5) the testimony violated his due-process rights pursuant to the Fifth and Sixth Amendments.
On October 30, 2015, Maciel filed a second motion in limine. He again asked the court to exclude the testimonial evidence that he had penetrated Y.C. with his finger while they were in Mexico. He reasserted his argument from the September 4, 2015 motion that the testimony was inadmissible under Rule 403 and added that the testimony was also inadmissible under Arkansas Rule of Evidence 404(b).
The court held a hearing on the motions on November 4, 2015. At the hearing, Ma-ciel’s attorney moved the court to exclude any testimony about the alleged acts in Mexico. He recognized that the State sought to introduce the testimony under the pedophile exception; however, he asserted that the exception
violate[ed] his rights to due process and that it treats somebody with these charges under a different set of rules than somebody charged with any other set of charges. Therefore, it would violate his right to due process under the Arkansas Constitution and the U[nited] S[tates] Constitution.
He additionally asserted that the anticipated testimony would be highly prejudicial to Maciel. The court denied Maciel’s motions.
The case proceeded to trial on November 9, 2015. At trial, Y.C. testified that beginning in the summer of 2011, Maciel came into her bedroom during the night and touched her vaginal area. She testified that the assaults happened twice a month for the next few years. Y.C. also testified that in January and February of 2014, she went on a trip to Mexico with Maciel, and while they were there, he penetrated her vagina with his finger |son two different occasions. She testified that Maciel did not touch her sexually after the Mexico trip.
Following the testimony, the jury found Maciel guilty of second-degree sexual assault and sentenced him to fifteen years’ imprisonment in the Arkansas Department of Correction. Maciel timely appealed his conviction to this court. On appeal, he argues that the circuit court erred in admitting into evidence the testimony about the acts in Mexico pursuant to the pedophile exception because (1) the acts occurred after the charged crime; and (2) the exception deprived him of equal protection of the laws.
We are unable to address the merits of Maciel’s appeal because Maciel failed to preserve the issues at the circuit court. It is well settled that an appellant must raise the issue and make an argument at trial in order to preserve it for appeal. Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003). This is true even when the issue raised is constitutional in nature. Id. If a particular theory was not presented, the theory will not be reached on appeal. Id.
In this case, Maciel made several arguments to the circuit court against the admissibility of the testimony about the alleged penetration of Y.C. in Mexico. As discussed above, he argued that the testimony was inadmissible because (1) the acts occurred outside the court’s jurisdiction; (2) the acts were not similar to the charged crime; (3) the acts did not uniquely identify Maciel; (4) the testimony was inadmissible under Rules 403 and 404(b); and (5) the testimony violated his due-process rights pursuant to the Fifth and Sixth Amendments. However, he did not argue to the circuit court that the evidence was inadmissible because the acts in Mexico occurred after the charged crime or that the 14pedophile exception violated his rights under the equal protection clause. Accordingly, we must affirm Maciel’s conviction.
Affirmed.
Harrison and Kinard, JJ., agree.
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PER CURIAM
liln 1980, appellant Robert Heffernan and his accomplice, Joseph Breault, were charged with abduction, rape, and capital murder in the death of a fourteen-year-old girl. Both. Heffernan and Breault were found guilty of capital murder by juries in separate trials. Both were sentenced to life imprisonment without parole. This court affirmed 'Heffernan’s conviction on direct appeal in 1983. Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983). Heffernan pursued federal habeas corpus relief, which was denied. Heffernan v. Norris, 48 F.3d 331 (8th Cir. 1995). In 2001, he also filed a habeas corpus petition for relief in the trial court under Act 1780 of 2001 Acts of Arkansas, codified at Arkansas' Code Annotated sections 16-112-201 to -207 (Supp. 2003), seeking scientific testing of certain evidence. The petition was denied, and we affirmed the order. Heffernan v. State, CR 02-239, 2002 WL 1303388 (Ark. Jun. 13, 2002) (unpublished per curiam). Subsequently, Heffernan again sought 12relief under the same statute. This court affirmed the order denying the petition. Heffernan v. State, 2011 Ark. 326, at 2, 2011 WL 3930380.
In 2015, Heffernan filed a pro se petition for writ of habeas corpus in the Hot Spring County Circuit Court—the circuit court located in the county in which he is now incarcerated. The petition was properly filed in that county because, unless the petition is one filed in the trial court seeking scientific testing, our statutes provide, “The writ shall be directed to the person in whose custody the prisoner is detained, and made returnable as soon as may be ... before the circuit judges of the county in which it may be served, if either are within the county.” Ark. Code Ann. § 16-112—105(b)(1) (Repl. 2006); Hundley v. Hobbs, 2015 Ark. 70, at 3, 456 S.W.3d 755, 757, reh’g denied, (Apr. 9, 2015). The circuit court dismissed the petition, and Hef-fernan lodged an appeal from the order in this court.
Now before us are Heffernan’s pro se motions for appointment of counsel, for release-on-personal-recognizance bond, for extension of brief time, and for a copy of the record. Because it is clear from the record that Heffernan could not prevail on appeal, we dismiss the appeal, and the motions are therefore moot.' An appeal from an order that denied a petition for postconviction relief, including a petition for writ of habeas corpus, will not be permitted to go forward when it is clear that the appellant could not prevail. Allen v. Kelley, 2016 Ark. 70, at 1-2, 482 S.W.3d 719, 721 (per curiam); Daniels v. Hobbs, 2011 Ark. 192, 2011 WL 1587996 (per cu-riam).
A circuit court’s decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, at 5, 434 S.W.3d 364, 367. A decision is clearly erroneous when, although there is evidence to support it, the appellate | ¡¡court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id.
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. Philyaw v. Kelley, 2015 Ark. 465, 477 S.W.3d 503. Under our statute, a petitioner for the writ who does not allege his actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other' evidence of probable cause to believe that he is illegally detained. Ark. Code Ann. § 16-112-103(a)(l). Unless the petitioner in proceedings for a writ of habeas corpus can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of' habeas corpus should issue. Fields v. Hobbs, 2013 Ark. 416, 2013 WL 5775566.
Heffernan argued in his habeas petition that the judgment in his case was invalid on its face and that the trial court lacked jurisdiction on the ground that the record did not reflect that the jury had found him guilty of either kidnapping or rape, which were the underlying offenses to capital murder. He further contended that the jury had not been given the option of finding him guilty of a lesser-included offense. Heffernan conceded that the State could argue that neither of those assertions could be determined from the face of the judgment, but he contended that he had appended to his petition proof in the form of his affidavit, the verdict form and judgment reflecting that he had been found guilty of capital murder, and other documents from the trial record.
LThe trial court correctly declined to grant relief on the allegations contained in Heffernaris petition for writ of habeas corpus because Heffernan did not make a showing of probable cause to believe he is illegally detained. First, the jury at his trial was instructed on capital murder and the lesser-included offenses of first-degree murder, kidnapping, and rape. The jury was informed that, if it returned a finding of guilt on any of the offenses, there would be a separate sentencing proceeding. The jury returned a verdict of guilty on the charge of capital murder.
Heffernan’s codefendant, Joseph Breault, argued on direct appeal following his conviction that the trial court erred in not requiring separate verdict forms to be completed by the jury on rape and kidnapping in his case. We found no reversible error in the trial court’s failure to instruct the jury to complete verdict forms on the underlying felonies of rape and kidnapping because the jury, by implication, had to find defendant guilty of either kidnapping or rape in order to find him guilty of first-degree felony-murder. Breault v. State, 280 Ark. 372, 375, 659 S.W.2d 176, 178 (1983). Clearly, the issue of whether to require separate verdict forms was one that could also have been raised, and settled, at Heffernan’s trial and on the record on direct appeal. The issue was not sufficient to deprive the trial court of jurisdiction or to render the judgment in Heffer-nan’s case invalid on its face. Assertions of mere trial error are not a basis for the writ. Philyaw, 2015 Ark. 465, at 6, 477 S.W.3d at 507.
Jurisdiction is the power of the court to hear and determine the subject matter in controversy. Baker v. Norris, 369 Ark. 405, 413, 255 S.W.3d 466, 471 (2007). Heffernan did not establish a lack of jurisdiction in his case. Furthermore, proceedings for the writ are | ¡¡not intended to require an extensive review of the record of the trial proceedings, and the court’s inquiry into the validity of the judgment is limited to the -face of the commitment order. Burgie v. Hobbs, 2013 Ark. 360, at 4, 2013 WL 5436626 (per curiam). As stated, if there had been some irregularity in the verdict form or judgment or an issue with instructing the jury on lesser-included offenses, a writ of habeas corpus would not issue tt> correct errors or irregularities that occurred at trial, as the proper remedy in such a case is to raise the issue at trial and on direct appeal. Meny v. Norris, 340 Ark. 418, 13 S.W.3d 143 (2000) (per curiam); see also Abernathy v. Norris, 2011 Ark. 335, at 3,2011 WL 3930360. A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case, and it is not a substitute for direct appeal or for pursuit of postconviction remedies. Friend v. Norris, 364 Ark. 315, 219 S.W.3d 123 (2005) (per curiam),
Inasmuch as Heffernan’s petition did not state a ground for a writ of habeas corpus, there was no merit to the petition, and there could be no merit to an appeal from the order that dismissed it. The clear lack of merit in the appeal renders the appeal subject to dismissal. See Fields, 2013 Ark. 416.
Appeal dismissed; motions moot.'
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Hart, J.
Lon Easley was indicted for the crime of murder in the first degree, charged to have been committed by shooting Claibe Pinnell in Lawrence County, Arkansas. He was tried at the same term of the court and convicted of the crime of murder in the second degree, his punishment being fixed by the jury at twenty-one years in the State penitentiary. From the judgment of conviction he has duly prosecuted an appeal to this court.
A physician who examined the body of the deceased, Claibe Pinnell, after he was shot, testified that he found a hole about one inch below the eye on the left cheek where the bullet had entered. That he made an opening in the back of his head and found the bullet. That the bullet had punctured the top layer of his skull and was lodged in the muscles of his neck. That it passed the base of the brain and cut the spinal cord in two where it went out and caused instant death. Another witness for the State testified that he did not see the shooting but heard the shot fired; that just after the shooting he saw the defendant, Easley, and asked him what was the trouble and that Easley replied that he had just killed Claibe Pinnell. That he afterwards saw Claibe Pinnell lying on the ground dead, in the town of Hoxie in Lawrence County. The State here rested. Lon Easley, the defendant, for himself, testified as follows:
Eed Dempsey and Claibe Pinnell were ■ together in the town of Walnut Ridge on the night that I killed Pinnell. They were both drinking and went from Walnut Ridge to Hoxie. I was town marshal and heard Red Dempsey using profane language in front of a store house. I arrested him, and, putting my left arm through Dempsey’s right arm, started oft with him. Claibe Pinnell came running up behind us and said “wait.” When he got up to us he said, “You won’t lock this man up, nor no other man.” Just as he said this he drew his pistol and fired. I saw; the pistol coming right up in my face and struck it up with Red Dempsey’s arm. Pinnell fired right by my face and my face was powder-burned all over. He kept on firing, and the next shot I think was the shot that hit Dempsey. I ran into the street and Dempsey ran the other way. Pinnell kept shooting at me, and I finally got my pistol out and commenced shooting at him. I did so because he was still shooting at me and I thought he was trying to kill me. I had a thirty-eight calibre Smith & Wesson pistol. Pinnell shot at me with a thirty-two calibre pistol. Pinnell and I were good friends. When Pinnell fired at me I swung Dempsey around and he fired again and hit Dempsey. Dempsey was not quite as close as Pinnell when he was shot as I was when Pinnell shot at me.
Several other witnesses for the defendant testified that they heard the shooting and that two or three shots from the smaller pistol were fired first, and that they then heard the reports from the larger pistol. The physician who extracted the bullet from the body of Red Dempsey said that he gave the bullet to Red Dempsey and that he thought it was a bullet from a thirty-two calibre pistol. Several other witnesses for the defendant testified that Claibe Pinnell and Red Dempsey were drinking and conducting themselves in a boisterous manner on the night that Pinnell was killed. That Pinnell’s reputation in that community where he had lived all his life was that of being'a dangerous and turbulent man, especially when he was drinking.
In rebuttal, Red Dempsey was introduced as a wit ness in behalf of the State. In response to the question, “Did Claibe Pinnell make the statement to Lon Easley there at that time (referring to the time he was killed) he could not lock you or anybody else up?” and answered, “He did.” Later on, in response to the questions asked by the prosecuting attorney, he stated that Pinnell came up to where he was in custody of the defendant and told the defendant that he (Dempsey) had not done anything, that the street car was coming and that if the defendant would turn him (Dempsey) loose they would take the car and go home. He also stated that the only thing Pinnell said to the defendant was that if he would turn him (Dempsey) loose they would catch the car and go back to Walnut Eidge. He also said that Pinnell did not shoot at the defendant until after the defendant had fired at him; that the defendant shot two or three times before Pinnell began firing. That he had stepped aside a few paces and during the shooting said to the defendant, “My God, you have killed him; don’t shoot him any more.”
The State also introduced wtinesses who testified that the reputation of the defendant for truth and morality in the community was bad. One witness testified that the defendant came in to his restaurant shortly after the killing and said, “I have got the damn son-of-a-biteh, but I don’t know whether he shot me or not,” or something like that. An-other' witness testified that on the night of the killing the defendant was in Walnut Eidge and he heard him say (referring to Pinnell and Dempsey) that if they went down to Hoxie that night they would never get back alive. It was also proved by the State that the defendant had been several times convicted of the illegal sale of whiskey.
Other testimony was introduced by the defendant tending to corroborate his statement and to contradict the testimony of Eed Dempsey.
It is first earnestly insisted by counsel for the defendant that the evidence is not sufficient to warrant the verdict. We have not attempted to set out the evidence in detail but believe that we have given the substance of it as favorably to tbe defendant as the record will warrant.' It is not our duty to pass upon the credibility of the witnesses, and even though we might think that the preponderance of the evidence was greatly in favor of the defendant it is our duty to uphold the verdict if there is any evidence of a substantial character to support it. In this view of the case, we do not deem it necessary to enter into an extended discussion of the evidence. It is sufficient to say that if the evidence introduced by the State, which we have recited above, was believed by the jury, it was sufficient to show that the defendant was actuated by malice when he killed the deceased and the jury were warranted in finding him guilty of murder in the second degree and fixing bis punishment at twenty-one years in the penitentiary.
Counsel for defendant next contend that “the court erred in placing him upon trial for murder in the first degree after the State had rested its case without proving premeditation and deliberation, and also that the court erred in instructing the jury as to murder in the first degree, over the objection of the defendant at the time. ” It is well settled that this court will only reverse a judgment for errors that are prejudicial to the rights of a defendant. As the defendant was only convicted of murder in the second degree, it is plain, whether the instructions on murder in the first degree were erroneous or not, they did him no harm. Kilgore v. State, 73 Ark. 280; Rogers v. State, 60 Ark. 76. The order of the admission of the testimony was a matter within the discretion of the trial court and the judgment will not be reversed unless an abuse of that discretion was shown. As we have already seen, the defendant was not convicted of murder in the first degree and the action of the court could not have resulted in any prejudice to him. Moreover, the record shows that the defendant saved no exceptions to the court’s action in this regard but voluntarily placed his own witnesses on the stand at the conclusion of the testimony given in behalf of the State.
Counsel for the defendant offered to prove by certain witnesses that Mrs. Claibe Pinnell, wife of the deceased, had stated to them that she had gone to see Red Dempsey, and, after telling him that he would probably not get well, asked him to tell the truth about the shooting of her husband by defendant; that Dempsey told her that deceased fired two shots at the defendant before the latter began firing. Mrs. Pinnell was a witness in the case and denied that she told Red Dempsey that the probabilities were that he would die and she denied that he told her that her husband shot at the defendant twice before the latter fired. She also denied that she had made the statements to the witnesses offered to be introduced in evidence by the defendant, as above stated. The court did not err in excluding the testimony, because it was hearsay. In discussing similar testimony in the case of Sutherland v. State, 76 Ark. 487, the court said:
“Lee Newman, a witness on behalf of the State, testified that he did not see the defendant cut deceased’s throat, but that he told George Pruitt and George Burns that he did. Over the objection of appellant, witnesses George Pruitt and George Burns were permitted to testify in substance that Lee Newman told them that he saw defendant cut deceased’s throat. This testimony of Pruitt and Burns was hearsay, and therefore incompetent. It was not in contradiction to anything the witness Newman had testified to, and was not therefore admissible to impeach such witness. ’ ’
It is insisted that the court erred in allowing the prosecuting attorney to ask defendant if he did not shoot at Red Dempsey and that the latter hallooed at him and said, “For God’s sake, don’t kill him.” The court did not err in this regard. In the first place, the defendant denied that Dempsey made any such exclamation, and, if he had answered that Dempsey had made such exclamation, it was competent as part of the res gestae. Ford v. State, 96 Ark; 582; Childs v. State, 98 Ark. 430. Under the rule announced in these two cases the testimony of Dempsey to the effect that he hallooed to the defendant while he was shooting at Pinnell, “My God, you have killed him, don’t shoot any more,” was competent.
The court stated to the jury that they were not trying the defendant for shooting the witness Dempsey, and that the answers of the witness Dempsey in regard to that matter could only he considered in determining the question as to whether or not the defendant was acting in his necessary self-defense at the time the shooting was done and in determining the facts and circumstances surrounding the shooting of the deceased, Pinnell. That the testimony could only be considered as throwing light on that transaction. This ruling was in accord with the decision of Childs v. State, supra, where the court, in discussing a similar proposition, said:
“The defendant’s brother was present the whole time and struck deceased as soon as the defendant ceased shooting him. It was all a part of one transaction, and it would be difficult to give a connected and correct account of the occurrence without stating all that was said and done concerning it. Under the law, all that occurred at the time and place of the shooting which had reference thereto or connection therewith was part of the res gestae. Byrd v. State, 69 Ark. 537. Res gestae are the surrounding facts of a transaction, explanatory of an act, or showing a motive for acting.” Carr v. State, 43 Ark. 99.
The prosecuting attorney, in the course of his argument to the jury, said:
“The law doesn’t compel you to find a motive. The State is not required to prove a motive. But if you are looking for a motive, suppose that Olaibe Pinnell knew something on Lon Easley that would probably send him to the penitentiary.” Upon objection being made to this argument, the court said, “Just consider the evidence in the case, gentlemen.” If it be said that the argument of the prosecuting attorney was the statement of a matter of fact not in evidence, the remarks of the court eliminated it from the consideration of the jury and cured any error caused thereby.
Counsel for the defendant also urge that the judgment should be reversed because of certain other remarks made by counsel for the State in his closing argument of the case. The objection made by counsel for defendant to the remarks is as follows:
“To which statement counsel for defendant at the time duly excepted, and requested that his exceptions be noted of record, which was accordingly done.”
In the case of the Kansas City Southern Railway Company v. Murphy, 74 Ark. 256, the court said:
“From the above cases these propositions may be deduced: The control of argument is in the sound judicial discretion of the trial judge, and it is his duty to keep it within the record and within the legitimate scope of the privilege of counsel, and this he should do on Ms own imtiative; if he fails to restrain counsel, then it is the right of opposing counsel to object to the argument. This should be a definite objection to the alleged improper remarks, and call for a ruling of the court thereupon, and if the court then fails to properly restrain and control the argument witMn its proper bounds, and to instruct the jury to disregard any improper remarks and admonish the counsel maMng it, then an exception should be taken to the action of the court. A mere exception to argument interposed to make a record in the appellate court, and not calling for a ruling of the trial court, is insufficient.”
The ruling there made has been uniformly adopted by the court in its subsequent decisions, and, among them, we cite the following: Bell v. State, 84 Ark. 128; American Insurance Co. v. Haynie, 91 Ark. 43; Fogel v. Butler, 96 Ark. 87. In the application of the rule it will be seen that counsel for the defendant contented themselves merely with an exception to the remarks of counsel for the State and did not ask a ruling of the court on their objections, and there is nothing presented for our review in this regard. Counsel should first have made an objection which called for a ruling of the court, and if the court ruled adversely to them or failed to rule at all, they should have saved an exception to the action of the court in this regard. Then the matter would he properly here for review.
The judgment will be affirmed.
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McCulloch, C. J.
Appellant, L. Storthz, owned a farm in Faulkner County, Arkansas, and rented a portion of it to one Robert Carr to cultivate during the year 1911., Before the time passed to plant the crop, Carr died, and appellant agreed with the latter’s widow that she should carry out the rental contract, the effect of the contract, as disclosed in the evidence being, to constitute a new rental contract between appellant and Mrs. Carr. Mrs. Carr subrented ten acres of the land to one Gordon, who raised a crop thereon, and mortgaged it, before maturity, to appellee,' S. G. Smith, a merchant in Conway, Arkansas, to secure an account for supplies. Gordon left before the crop was gathered, and Mrs. Carr authorized appellant’s agent to take possession of it for the purpose of gathering it to pay the rent.
Appellee Smith instituted this action in the chancery court of Faulkner County to foreclose his mortgage, making Gordon, Mrs. Carr, and appellant defendants; and he asked that a receiver be appointed by the court to take charge of the crop, and the chancellor, in vacation, made an order for the appointment of a receiver.
Appellant resisted this order on the ground that he was solvent and was therefore accountable for the crop, and also offered to make bond for the delivery of the crop according to the orders of the court.
Appellant claims that there were thirty-two acres of the land, and that he was to be paid $6 an acre for it, and the proof introduced on his part tends to establish that contention. The proof, however, adduced by appellee, which the court accepted as true, tends to establish the acreage of the land rented at only twenty acres, and that Gordon cultivated ten acres thereof. It also shows that only the ten acres cultivated by Gordon could be put in cultivation that year, the remainder being covered at planting time by overflow water. The chancellor found that appellant was only -entitled to enforce a lien for the sum of $60, being $6 per acre on the ten acres of land on which was the Gordon crop, and that the balance of proceeds of the crops, which was sold under order of the court, should be paid over to appellee, Smithson his mortgage debt. A decree to that effect was rendered, and all of the costs of the cause, including the fee of the receiver and other expenses of the receivership, were awarded against appellant.
It is insisted on behalf of appellant that the decree was erroneous in not awarding him the full amount of rent which he claimed; in other words, it is contended that a lien should be declared in his favor against the crop for rent on thirty-two acres of land at $6 per acre.
The testimony is sufficient, we think, to warrant the finding of the chancellor that there were only twenty acres of the land rented by appellant to Carr, and that only ten acres of this was cultivated by Gordon. The proof is not entirely satisfactory, but our conclusion is tha-t it is sufficient to show that it was a sub-renting to Gordon, and that he only sub-rented the amount that he put into cultivation. This being true, he is only liable for the ten aeres of land at $6 per acre under the statute of this State which declares’ that, “Any person sub-renting lands or tenements shall only be held responsible for the rent of such as are cultivated or occupied by him.” Kirby’s Digest, § 5035. The purpose of this statute is to limit the liability of a sub-tenant to the rent of the land which he sub-rents at the price specified in the contract between the principal tenant and the landlord. The words,11 cultivated or occupied, ’ ’ as used in the statute, mean the quantity of land which the sub-tenant con tracts to take. Jacobson v. Atkins, 103 Ark. 91, 146 S. W. 133.
We can not say that the chancery court erred in its finding that appellant was only entitled to enforce a lien for the sum of $60 against Gordon’s crop.
Nor do we think there is any foundation for the contention of appellant’s counsel that the mortgage executed by Gordon to appellee, Smith, was void on account of the lack of a correct description of the property, which is described as ‘ ‘ entire crop of cotton, cotton seed, corn, oats, small grain, and all other products which shall be grown or cultivated” (by the mortgagor) “on S. G. Smith’s farm, or elsewhere, in Faulkner County, Arkansas, during the year 1911.”
The crop was not raised on the Smith farm, but on appellant’s farm in Faulkner County. But we think the description is sufficient to give notice to all parties of the lien on any crop raised by the mortgagor in that county. Gurley v. Davis, 39 Ark. 394; Johnson v. Grissard, 51 Ark. 410.
Our conclusion, however, is that the court erred in taxing the costs of the case, particularly the costs of the receivership, against appellant. His lien was prior to that of the mortgagee, and his possession of the crop, which had been turned over to him for the purpose of gathering and paying his rent, was not wrongful. If appellee, as mortgagee, had tendered to appellant the true amount of his rent, and he had refused to accept it, then his holding of the crop might be treated' as wrongful so as to subject him to the costs of any litigation which followed; but that is not the state of the present case, for the suit was brought against Gordon, and appellant was made a party without any offer to pay his rent. So there is no reason why the costs should be taxed against hirn and taken out of his rent, for which he is entitled to have a first lien declared.
The decree, insofar as it fixes the amount of appellant’s rent to be charged against the crop, is affirmed; but the decree is modified so as to strike out the award of costs against appellant. The costs of this appeal will be divided equally between the parties.
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Hart, J.
This is an action on a life insurance policy. Jane Johnson was a member of the Grand Camp of Colored Woodmen of Arkansas, a fraternal insurance company doing business under the laws of the State. She had a policy of insurance in the sum of $325, and Fed Johnson was the beneficiary named in the policy. Jane Johnson died in Woodruff County, Arkansas, on July 2,1911. Fed Johnson instituted this action against the fraternal.insurance company and the sureties on its bond. The company executed a bond in compliance with section 4354 of Kirby’s Digest, and it is “conditioned for the prompt payment of all moneys coming into the hands of its officers to which beneficiaries ,are entitled.” The language quoted is the exact language of both the bond and the statute. The defendants in the action, who were sureties on the bond of the company, interposed a demurrer to the complaint. The court overruled the demurrer and the sureties elected to stand upon their demurrer. Thereupon, the court rendered judgment against each of them for the amount sued for. The case is here on appeal.
The complaint alleges “that said company has failed and refused, after repeated demands, to pay said claim, except a partial payment of twenty-five dollars; that there is now due and unpaid to this plaintiff the beneficiary named in said contract, the sum of three hundred dollars.” This is the only paragraph of the complaint which attempts to allege a breach of the bond sued on. The liabilities of the sureties on the bond is fixed by the terms of the bond itself. American Insurance Co. v. Haynie, 91 Ark. 43; Ingle v. Batesville Grocery Co., 89 Ark. 378. Hence, it will be seen that the plaintiff’s right to recover from the sureties on the bond depends upon a breach of its condition; and the injuries resulting from the nonperformance of a bond do not appear until a breach thereof is assigned. See Euper v. State, 85 Ark. 223. Where a complaint is assailed by general demurrer, the question is whether it entitles plaintiff to any relief. A consideration of the paragraph of the complaint above set out leads us to the conclusion that no breach of the conditions of the bond is assigned. As above stated, the bond was executed in compliance with the provisions of section 4354 of Kirby’s Digest, and the •condition of the bond is in the language of the statute. It is conditioned fpr the prompt payment of all moneys coming into the hands of the officers of the company to which beneficiaries under a policy of insurance are entitled. No breach of the condition of the bond was assigned in plaintiff’s complaint, and, for this reason, the court should have sustained the demurrer of the sureties on the bond. For the error in not doing so, the judgment will be reversed, and the ease remanded for a new trial.
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Wood, J.,
(after stating the facts). As shown by the opinion on the former appeal, the only issue ‘ ‘ which the chancellor was called on by the pleadings to decide was whether or not the appellant here was under twenty-one years of age when he executed the deed.” That being the only issue, fhe court erred in injecting into the case the issue as to whether or not the plaintiff below (appellant here) was liable for necessary supplies furnished him by the appellee. That was a new issue, and it could not be raised for the first time after the cause had been tried on another issue and a judgment directed in favor of the plaintiff.
This court having directed a decree to be entered in favor of the plaintiff, no issue of fact could be tendered thereon in the lower court. The chancery court, instead of entering a decree in favor of the plaintiff according to the mandate, permitted testimony to be taken and finally entered a decree in favor of the appellee, which was contrary to the directions of this court on the former appeal. The directions on the former appeal constituted the law of the case and the guide for the lower court in entering its decree. In Gaither v. Campbell, 94 Ark. 329-332, we said: “A direction here is conclusive on the lower court unless matters are left open ■for further proceedings below.”
Here, by the special directions of this court, nothing was left open for further adjudication. The decree ordered to be entered in favor of the plaintiff (appellant .here) was final. Under these directions the only decree that could be entered was one in favor of the appellant.
For the error indicated the decree is reversed and the cause remanded with directions to enter a judgment in favor of the plaintiff (appellant here) as heretofore directed.
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Smith, J.,
(after stating the facts). There is no doubt that the loan made by appellant was to Eagle So Co. and not to the Merchants So Planters Bank, and it is equally as certain that Eagle deposited the note of himself and the other directors as collateral security for this individual loan made to him. But this was a non-negotiable instrument, and, as such, a holder who took it even before maturity took it subject to all defenses and equities which were available between the original parties. Am. So Eng. Enc. Law (2 ed.) vol. 4, p. 133; Wettlaufer v. Baxter, 26 L. R. A. (N. S.) 804.
The interest of the appellant therefore was the same as that of Eagle, and the note was subject to any defense against it which would have been available against him. As a joint maker of this note, it was Eagle’s duty to pay it, and, having paid it, it could be kept alive only for the purpose of contribution from his comakers. The consideration for this note was the satisfaction of the cashier’s shortage, and this was paid to the Merchants So Planters Bank with Eagle’s individual check, when the bank auditor refused to accept the note as payment.
A joint note is extinguished by an assignment to one of the makers on payment by him, leaving him a right of action against the others for contribution. 7 Cyc., note 16, p. 789; Stevens v. Hannan, 49 N. W. 874; Daniels on Negotiable Instruments, vol. 2, par. 1236.
The evidence of Buffalo, the cashier of the Merchants & Planters Bank, was that when Eagle paid the shortage by a check for its amount against his individual account, Buffalo knew nothing of this note and never had it in his possession, and no record thereof was ever made on the books of his bank, and later in the day, after Eagle’s check had been paid, Eagle brought the note into the bank and directed Buffalo to endorse the bank’s name thereon in order that he (Eagle) might hold one or two of the directors liable to him for their pro rata part of any sum he might finally fail to realize from Groodrum’s property; and no authority for this endorsement was given him except Eagle’s direction above stated. This transaction amounted to a mere accommodation endorsement, and under the circumstances here stated did not operate to make the bank liable to one charged with notice of that fact. Simmons National Bank v. Dilley Foundry Co., 95 Ark. 368; Cook v. Tubbing & Webbing Co., 9 L. R. A. (N. S.) 193.
Whatever may have been the representations of Eagle to the appellant, or whatever may have been its expectation flowing therefrom, the fact remains that the note under consideration is non-negotiable, and while the endorsement by the cashier of the bank to which it was payable was a transfer of it, yet such transfer carried with it no guaranty of its payment, for such is the law, unless the assignor makes the assignment in a form from which an intention to guarantee the payment of the instrument may be inferred, or induces the assignee to take it by an agreement, express or implied, to that effect. 4 Am. & Eng. Enc. Law (2 ed.) 479, and cases cited.
Upon the whole case, we think the chancellor’s finding is not contrary to the preponderance of the evidence, and the decree of that court is accordingly affirmed.
Kirby, J., dissents.
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Hart, J.,
(after stating the facts). The judgment is sought to be upheld on the authority of the Bank of Eastern Arkansas v. The Bank of Forrest City, 94 Ark. 311, and Regan v. Iron County Court, et al., 125 S. W. (Mo.) 1140, but we do not think the principle announced in either of these cases sustain the position taken by the county court. In the case of the Bank of Eastern Arkansas v. The Bank of Forrest City, supra, appellee, in its proposal, did not name any specified.rate of interest, but stated that it agreed to pay five-sixteenths of one per cent more on the funds than the highest and best bid that should be made by any other bidder.
The county court adjudged it to be the best bidder, and made an order designating it as the county depositary. This court held that it was not the best bidder, because it did not name a distinct and certain sum, but upheld the judgment on the ground that the act of 1909, under which the case arose, provided that the court should have a'right to reject any and all bids, and that in event the bids offered should be deemed too low, the court might order the funds deposited with one or more banks in the county which it might select, at a rate ,of interest that might be agreed upon between the court and the banks. So, too, in the Missouri case just cited, the county court was given the power to reject any and all bids, and ■the court held that, when the whole act was construed together, the county court was given a discretion in selecting a county depositary, and that this discretion should not be controlled on appeal in the absence of a showing of abuse.
In the instant case, the Citizens Bank & Trust Company proposed “to pay to said county of Independence the rate of one-quarter of one per cent per annum higher than any other bid, provided, however, that it .will make our bid not to exceed 4% per cent upon the county funds of said county. ’ ’
■ It will be noted that this proposal does not name a certain and specified rate of interest. In the case of Webster et al. v. French et al., 11 Ill. 254, which Avas cited in the case of the Bank of Eastern Arkansas v. The Bank of Forrest City, supra, it was held in- effect that a proposal to be recognized as a bid must contain a distinct proposition which can be acted upon taken alone and Avithout reference to anything out of itself. The court, in discussing a proposal similar to the one under consideration, said that, if this form of bidding is allowed, one man, by offering a nominal sum above all others, might appropriate to his own advantage the judgment of others who might have gone to great trouble and expense to form a correct opinion, when the intention was to give each bidder the benefit only of his own judgment. The court further said that the effect of it would be to drive away all prudent and reasonable men, and to destroy all fair competition in the bidding. In the application of this principle to the present case, we hold that the offer of the Citizens Bank & Trust Company was no bid at all. As we have already seen, the act of the Legislature providing for a depositary of county funds was passed April 22, 1907. See Acts of 1907, 485. The act was amended May 4,1911. Acts of 1911, 252.
The act, as amended, provides in effect that if from, any cause, no selection of a depositary shall be made at the time fixed by the terms of the act, that the same may be selected at any subsequent term of the court or adjourned day of it, but the act further provides that upon failure to select a depositary, it shall be the duty of the county judge to again advertise for bids pursuant to the terms of the act. Thus, it will be seen that no discretion is given to the county court in the matter of selecting a depositary; but the selection must be made as provided by the terms of tbe act, and this requires the selection to be made by public advertisement to the highest responsible bidder who shall comply with the terms of the act.
It is next contended that the appeal should have been dismissed by the circuit court because the parties appealing did not have the right to appeal from the order. In the first place, the record shows that Casey was allowed to intervene and thus become a party to the proceedings. The record shows that the order designating the Citizens Bank & Trust Company as depositary was made on the 13th day of January, 1913. It also shows that the intervention of Casey, as a citizen and taxpayer, was filed on that day, and on the back of it appears the following endorsement: “Examined and not granted, January 13, 1913.” (Signed) “J. W. Scott, Judge.”
The order dismissing the intervention of Casey was not entered of record until January 14, 1913, and is as follows:
“On the 13th day of January, 1913, came Sam M. Casey, a taxpayer and citizen of Independence County, and files his intervention in the matter of designating a depositary for Independence County, Arkansas, and objecting to the court awarding and designating the Citizens Bank & Trust Company as the depositary for Independence County under the bid as submitted by it on the 6th day of January, 1913, a former day of this term of court, in which bid the said Citizens Bank & Trust Company offered and bid for said funds one-fourth of one per cent higher than any other bid, provided the same should not exceed 4y2 per cent; and the court thereupon overruled and dismissed the said objection and remonstrance of the said Sam M. Casey, and thereupon designated the Citizens Bank & Trust Company as-such depositary for Independence County under its said bid as aforesaid, and to this ruling and judgment, and order of the court the said Sam M. Casey duly excepted and objected, and thereupon he filed his affidavit and bond for an appeal from said judgment and order of the county court designating the Citizens Bank & Trust Company as such depositary, to the circuit court, and said appeal is by the court granted.”
The case came up for trial de novo in the circuit court, and the circuit court was warranted in holding that Casey was allowed to become a party to the proceedings before the order designating the Citizens Bank & Trust Company as county depositary was made, and he was therefore entitled to an appeal as the party aggrieved within the meaning of section 1487, Kirby’s Digest. Moreover, in the case of Lee County v. Robertson, 66 Ark. 82, the court held:
“Where a citizen and taxpayer of a county appeared in the levying court, and asked to be made party to an order misappropriating county funds, and made objections thereto, and was treated as an adverse party in that court, though not formally made a party, he will be entitled to appeal to the circuit court from the order making such appropriation.”
The designation of the bank as county depositary was an order affecting the revenues of the county, and each taxpayer was interested in such order. The order was illegal and was tantamount to an allowance and enforcement of an illegal exaction against every taxpayer of the county. Therefore, under the ruling of Lee County v. Robertson, supra, Casey was entitled to appeal.
It follows that the judgment will be reversed and the cause remanded for further proceedings according to law.
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Wood, J.,
(after stating the facts). In the cases of Russellville Water & Light Company v. Sauerman & Ball, D. C. Carpenter, J. M. Ball and T. C. Cole, numbered respectively 2617, 2619 and 2620, the appellees ask the court to affirm the judgments .for the reason that the contract, which is material to the determination of the issues involved, and which was in evidence below, is nowhere brought into this record.
There is an agreement of record here by the attorneys representing the respective parties in the above cases that the transcripts now on file here in each of the causes may be used as a part of the transcript in the other causes; that the causes may be submitted the same as if the matter contained in each of them were contained in’ all of the others. By an examination of the record in one of the canses we find that the answers allege the existence of a contract between the company and Wilson, and that the reply of one of the plaintiffs to the answer admitted the contract between the company and Wilson, and the reply to the answer states as follows: “That the defendants by their contract with said Fred Wilson kept and agreed to withhold and withheld 15 per cent of all funds due said contractor for the purpose of paying any indebtedness in the construction and erection of the improvements in controversy; that said defendants after the bankruptcy of said Fred Wilson appropriated said 15 per cent so held back by them to their own use and interest, when in equity and good conscience the same should have been applied to the payment of plaintiff’s claim.”
The appellees, in their briefs, acknowledge that the contract was adduced in evidence. Since the appellees admitted the existence of the contract, and show in their briefs that it was considered by the lower court, we are of the opinion that the causes should not be affirmed because of the omission from the transcript of the contract upon which appellant relies to sustain its contention.
Counsel, in their brief, in presenting this motiori for affirmance, state that “if the court should be inclined to have this contract considered here,” we respectfully ask permission to file as a part of our brief and argument the brief and argument of Hon. U. L. Meade, filed in the case of Russellville Water & Light Company v. H D. Benefield et al. In that case the contract is fully set out, and copied by Mr. Meade in his brief. This statement of the attorneys, we are of the opinion, supplies the omission of the appellant to set forth the contract in the record and in its abstract, and sufficiently brings to the attention of the court the contract that was in evidence, and upon which the court, in part, based its decree. !
The only remaining question therefore is whether or not under the terms of tbis contract as shown in the Benefield case the appellees were entitled to recover;
. : The contract, after providing for the erection of the reservoir and dam and specifying the manner in which same should be completed and the time for the completion of the same, contains the following:
. “Third. The company shall pay to the said contractor for the construction and completion of the said dam and reservoir in accordance with said plans and specifications and this agreement to the satisfaction of the company, the sum of thirty-four thousand seven hundred dollars in lawful money, which said sum shall include the cost of all labor, machinery, freight thereon, installation thereof and all materials and other things used in and about the construction and completion of the said dam and reservoir, as well as other items of cost which may be incurred by the said contractor or those working for or under him in the erection and completion of said dam and reservoir under this contract. Said sum of money shall be paid to the contractor semimonthly as the .construction of said dam and reservoir shall progress, 85 per cent of the actual value of the cost of transportation and the installation of all machinery and appliances placed on said premises, and all labor performed during the erection, and completion of said dam and reservoir during the period then ending, shall be paid to the contractor, which value is to be determined and ascertained by the engineer then in charge of the said work, as herein provided, and the remaining 15 per cent shall be retained by the said company and not paid to the contractor until ten days after the completion of the said work and the possession thereof delivered to the company, free of all liens for labor or materials or purchase money or otherwise. It is understood and agreed in this connection that the contractor will use and supply all moneys so advanced to him under this contract at first, to the satisfaction and payment of all labor, materials and other liens used in and about the construction of the said dam and reservoir, and shall not diyert or use any of the same for any other purpose until all amounts owing, by. the contractor for such labor, materials and. other things are fully paid off and discharged, and such contractor shall not have the right.to demand any of the said semi-monthly payments until he has shown to the satisfaction of the engineer then in charge, that the preceding semi-monthly payments have been disbursed as herein provided.”
It is contended by the appellees that they have an equity in the 15 per cent retained by the company under the contract until the completion of the work, but we are of the opinion that this provision of the contract was made expressly for the benefit of the company, and not for the benefit of laborers and material men. The contract provides that the dam and reservoir should be turned over to the appellant “free of all liens for labor or materials or purchase money or otherwise,” and it provides that all moneys advanced to the contractor shall be used, first, for the payment of all labor, material and other liens, and that the contractor shall not have the right to demand the semi-monthly payments until he has shown to the satisfaction of the engineer in charge that the money previously advanced had been used to pay off the claims of laborers and material men. All this was to be done, under the contract, before the 15 per cent was due and payable to the contractor.
Taking all of the provisions together, they clearly show that the 15 per cent to be retained by the company was for its protection against any lien for labor or materials.
The provisions of the contract under consideration are similar to the provisions in the contract and bond under consideration in the cases of Eureka Springs Stone Co. v. First Christian Church, 86 Ark. 212, and Morris v. Nowlin Lumber Co., 100 Ark. 253. In those cases, construing similar provisions, we held that the provisions of the bond were for the benefit of the owner of the buildings to be erected, and not for the benefit of laborers and material men.
There was no privity of contract between the appellant and the appellees. The contract was made with Wilson, and the reservation of part of the contract price due him upon the completion of the dam and reservoir and the delivery of possession thereof to the appellant can not he construed as for the benefit of the appellees in the absence of more specific language to that effect. See Pine Bluff Lodge of Elks v. Sanders, 86 Ark. 292-299.
The appellees rely upon certain decisions of the Circuit Court of Appeals to support their contention, towit: Anniston Pipe & Foundry Co. v. National Security Co., 92 Fed. 549, 34 C. C. A. Rep. 526; United States, etc., v. Rundle et al., 100 Fed. 400, 40 C. C. A. Rep. 450; United States v. American Surety Co., etc., 135 Fed. 78, 67 C. C. A. Rep. 552, and Chaffee v. United States Fidelity & Guaranty Co., 128 Fed. 918, 63 C. C. A. Rep. 644. These decisions are grounded on an act of Congress for the “protection of persons furnishing materials and labor for the construction of public works.” See Yol. 6, Fed. Stat. Ann., p. 125. The act, among other things, provides for a bond to be given by the contractor with good and sufficient sureties “that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract, * * * upon which (contract and bond) the said person or persons supplying such labor and materials shall have a right of action, and shall be authorized to bring suit in the name of the United States for his or their benefit against said contractor and sureties,” etc.
It is clear from the provisions of this statute that the contracts and bonds under them are, in part, expressly for the benefit of laborers and material men, since they are given a right of action thereon. These authorities are not applicable to the contract under consideration.
The undisputed testimony shovrs that at the time Wilson abandoned his contract he was indebted to appellant in a sum in excess of the amount of the 15 per cent' reserved. After Wilson left, appellant had to expend a large stun in excess of the 15 per cent to finish the dam and reservoir.
It follows that the decree was erroneous. It is therefore reversed and the causes are dismissed.
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Wood, J.,
(after stating the facts). In Loeb v. German National Bank, 88 Ark. 108, the motion to transfer alleged that “the defendants had been customers of the plaintiff for nearly four years; had continuously borrowed money from it, executing to plaintiff about seventy-five notes, ranging in amounts from $500 to $12,000; that the average amount borrowed, or renewed, each year amounted to about $20,000, or an aggregate of approximately $90,000; that during said period they had also endorsed notes at the bank for other parties to the amount possibly of from $65,000 to $75,000; that during the time they had deposited with said bank from time to time collateral notes ranging in amounts from fifteen to twenty thousand dollars; that at all times during said period there was an excess of collateral notes, in excess of the amounts defendants were indebted to said bank; that at various times during said period collaterals so deposited were realized upon by said bank, and the amounts collected thereon were applied to the payment of the various notes and interest executed by defendants ; that it is impossible for defendants to state, owing to- the large number of transactions between the parties, the calculations of interest of the various notes, the various off-sets and appropriations of collateral to the various notes, just what amount is now due, if any,- by said defendants upon the notes sued upon herein.”
In that case we said: “The transfer to equitywas properly denied. No equitable defense was pleaded in the answer, or set up in the motion to transfer. It is a mere invitation to have an accounting in order to ascer tain whether or not the defendants have a defense. There is nothing set forth, either in the answer or the motion, bnt what conld be ascertained in a court of law without the interposition of equity.”
There was much stronger reason for transferring to equity in that case than there is in this, because iñ that case it was alleged that it was impossible1 for defendants, owing to the large number of transactions between the parties, to make an accurate statement of the amount due upon the notes sued upon, if any, by reason of the fact that the evidence upon which they relied was in possession of the opposite party. But here the pleadings and exhibits show that the parties to the contract, which was made exhibit, had an accurate guide in the contract itself for stating the account. There was no complication or difficulty in the,matter of accounting. The question at issue between the parties, as shown by their pleadings, and their exhibits, was as to whether or not the parties respectively had performed the obligations of the contract.
Coungel for petitioner, in their brief, state: “We know that in this case petitioner made up its statement from the counting, measuring, etc., according to the rule fixed by the contract from its different graders or as made by its different graders. We presume that is the way Purifoy made up his statement also. So it will be necessary for the parties, on the trial of this case, to bring their graders before the court, and let them show the court by their testimony, and by their original figures made and entered at the time the grading was done, and how, under the rule fixed by the contract, they determined the grade and class and therefore the price of the staves.”
Counsel are correct in their conclusion, but it only shows that the question at issue between the parties was not so much a matter of account as it was whether the parties had carried out the terms of the contract, that is, as to whether the plaintiff had delivered the staves of the kind, grade, number and price alleged in the com plaint. And whether or not, on the other branch of the case, the defendant had breached its contract by failing to furnish plaintiff the bucker specified therein according to the terms of the contract, and whether plaintiff had furnished the staves that he alleged he had furnished to be’ bucked. In other words, whether the defendant had breached its contract in that particular and damaged plaintiff in the sum of $430 as alleged.
There is certainly in all this no question of long, complicated, mutual, running accounts, as petitioner, the defendant below, alleged in its motion to transfer. It was peculiarly within the province of a jury to determine the questions raised by the pleadings on that issue, and there is nothing to impeach the statement made by the respondent, that counsel for petitioner on the argument of the motion to transfer virtually admitted that all staves had been disposed of by defendant in the market, and no grading or measuring thereof could be had by any order of the chancery court. Then there is nothing pertaining to the issue as to whether plaintiff had furnished the staves according to the terms of the contract, and whether the defendant had paid him for the same, that was properly a matter within the jurisdiction of the chancery court. But, on the contrary, it was peculiarly a question for the law court and for the jury, under the evidence that might be adduced affecting that issue.
There is nothing, also, to impeach the statements in the response in regard to the accounting, that the admissions made as to the items of the account being correct, except three or four, reduced this issue to a very simple proposition or question of fact to be determined by the evidence pro and con, without complication. The same with reference to the items of expense incurred by the defendant (petitioner) after it took possession of the staves, in preparing the same for market; that plaintiff admitted that each of these items had been expended by the defendant, the petitioner, but simply denied that any of them were chargeable to plaintiff’s account. This presented also a simple question of law, depending upon the construction of the contract, and was proper for the law court to pass upon.
We are of the opinion that the chancery court was correct in its conclusion that petitioner had a full, complete and adequate remedy at law, and that it was correct in not assuming jurisdiction to try the cause and in transferring the same to the law court.
A mere matter of accounting is not sufficient to give equity jurisdiction. The case must he one where, on account of the complicated nature of the accounts, it would be most difficult, for a jury to determine the issues of fact involved before the chancery court should take jurisdiction. Where it is merely a matter of proof and calculation, with no special intricacies involved, hut a simple suit on contract, the chancery court will not take jurisdiction. Terrell v. Southern Ry. Co., 20 Am. & Eng. Ann. Cases, 901; Randolph v. Tandy, 98 Fed. Rep. 939; Amr. Spirits Mfg. Co. v. Easton, 120 Fed. 440.
As was said by Chief Justice Marshall, in Fowle v. Lawrason, 8 L. Ed. U. S. Sup. Ct., p. 495: “It can not he admitted that a court of chancery may take cognizance of every * * * contract expressed or implied consisting of various items where definite sums of money have become due, and different payments have been made. * * * It may he safely affirmed that a court of chancery can not draw to itself every action between individuals in which an account is to he adjusted.”
The petition for mandamus is therefore denied.
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McCulloch, C. J.
Appellee’s intestate, H. J. Caver, was employed by appellant in the capacity of a brakeman, and while working as such was killed at Nelogany, Oklahoma, on October 16, 1911, being engaged at the time-in switching freight cars from appellant’s road to the tracks of a connecting carrier, the Missouri, Kansas & Texas Eailroad Company.
This is an action by appellee as administrator of the estate to recover damages on account of the suffering alleged to have been endured by deceased as a result of the injury, and the loss of contributions to the widow as next of kin.
An appeal has been prosecuted from a judgment in appellee’s favor.
There are numerous assignments of error, the most important of which is that the evidence is not sufficient to sustain the verdict.
We have reached the conclusion that the evidence is not sufficient, and the case will be reversed on that ground, so that it will not be necessary to discuss all of the assignments. Only those will be mentioned which will necessarily arise in further proceedings in the case when remanded to the circuit court for a new trial.
The freight train on which Caver was serving as brakeman reached the station of Nelagony at night, and contained several cars which were to be switched over to the tracks of the connecting carrier for delivery to the latter. Appellant’s main track runs east and west, and there is a track south of the station called the delivery-track connecting the two roads. Between the delivery track and the station house is a track called the house track, which runs parallel with the delivery track and is connected with it by a switch. It was at this switch that Caver was killed by the moving cars which, were being switched over to the line of the connecting carrier. For a short space near the switch the ties were laid irregularly, in some instances wide apart at one end and close together at the other, thus forming angles, and the roadbed was very rough from the frog for a distance something over twelve feet, where there was a gully which ran across the roadbed. The gully was about fifteen inches deep from the top of the ties to the bottom of the gully. G-rass and weeds were growing between the ties, which covered the surface of the ground so that the condition could not be easily discovered.
The injury occurred on a dark night, and the proof shows that Caver had previously made three trips on this run as brakeman.
It is also alleged that the frog of the switch was not properly blocked or that the block had been permitted to get out of repair. There is some testimony to the effect that the block in the frog had become worn to about half of the ordinary thickness.
After the train came into the station, Caver, in the discharge of his duties, cut the caboose off from the train and spotted it on the main line, and lined up the main track switch, which was east of the station house, the train having come from the west. He then went to the switch where it connects with the transfer track, and, after throwing the switch, gave a back-up signal, which brought the engine with the ears to be transferred backing in on the track on the way to the line of the connecting carrier. It was his duty to go with the cars until they got on the track of the connecting carrier.
Caver was killed by being run over by the freight ears at the switch which connected the two sidetracks.
None of the trainmen were looking at him at the time the train ran over him, and could give no account as to how he came to be struck by the train or got under the car, though they saw him a few moments before when he lined up the switch so as to let the cars back in from the main track. Some one gave a lantern stop signal about the time that he was run over, and this signal was supposed to have been given by him, though it was not certain from the testimony whether he gave it or not. He was heard by a witness to cry out when the train struck him. The train was running very slowly, about four miles an hour according to the testimony, and was stopped in a very few feet after the signal was given. The conductor was the first one to get to the place, and he found Caver with his body between the rails and both feet extended over the outside of the track. He was right at the frog of the switch, and blood and crushed bone were found on the rails at that place. There was no evidence, as far as the record discloses, of the body being dragged along with the moving train. He died immediately after being extricated from beneath the car.
The only person who claims to be an eye-witness was a man named Young, who before the trial gave several conflicting statements, and also gave his deposition, which was in conflict with his testimony detailed on the witness stand. This man was not an employee, but was stealing a ride on a freight train of the Missouri, Kansas & Texas Eailway Company. He claims to have been near the spot attending to a call of nature when Caver’s injury and death occurred. The witness was found in Kansas City, and appellee took his deposition, for use at the trial, but the witness was present at the trial by procurement of appellant, and the court refused to permit appellee to read the deposition and required him to introduce the witness in person. This was done over appellee’s objection, who insisted upon the right to introduce the deposition.
We are of the opinion that the court was correct in its iTiling in this respect. The authorities cited in appellant’s brief sustain the ruling.
The statute on the subject is explicit and provides that depositions may be used on the trial “where the wriness resides thirty or more miles from the place where the court sits in which the action is pending, unless the witness is in attendance on the court.” Kirby’s Digest, § 3157 (4 subdiv).
In the deposition the witness gave testimony which tended to support the contention of appellee that Caver stepped into the ditch and fell and was unable to extricate himself before he was struck by the moving freight car.
His testimony as given on the witness stand was, however, altogether different, and failed to add anything" to the strength of appellee’s case. In fact, he testified that he saw Caver start across the track right at the frog of the switch and immediately in front of the moving train. His testimony made a clear case of injury on account of his own negligence in stepping immediately in front of the moving train.
The court allowed appellee to introduce the deposition and other statements made by the witness in contradiction of his testimony, but held that it was inadmissible as substantive testimony.
The court was correct in that ruling, for there was enough to show surprise on account of the previous contradictory statement and the testimony given on the witness stand was damaging to appellee’s case, which gave appellee the right to impeach him by proof of contradictory statements. Kirby’s Digest, § 3137.
The witness signed a written statement at the instance of the claim agent of the railroad company the next morning after the injury occurred, and that statement corroborates the statement in his deposition and contradicts the statement of the witness given at the trial-
Learned counsel for appellee insist that the witness, in the course of ■ his testimony, verified the statement given to the claim agent by stating that whatever he said at that time was true. Counsel argue this as being admissible under the rule of evidence which allows a witness who has no present recollection of the fact to testify as to the correctness of a contemporaneous memorandum made by him or made in his presence.
The rule of evidence contended for by counsel for appellee is correct and has been approved by this court. St. Louis Southwestern Ry. Co. v. White Sewing Machine Co., 78 Ark. 1. But we are of the opinion that it has no application to this case, for the reason that a careful analysis of the testimony of the witness shows that he did not testify that the former statement favorable, to appellee’s cause of action was true. There are some expressions in his testimony which might be so construed, but when taken all together his examination shows distinctly a repudiation of the truth of the former statement and the assertion that the facts related on the witness stand concerning the manner in which the injury occurred was a correct statement.
We think that the court was correct in limiting the former statements to the purposes of contradiction only, and not allowing it to go to the jury as substantive evidence.
Without substantive force being given to the testimony of witness Young, the evidence is insufficient to show that the injury to Caver resulted from the insecure condition of the track.
The theory of appellee is that Caver stepped into the gully, which was about twelve feet from the frog, and was dragged that distance and run over.
Leaving out the testimony of Young, we find no testimony at all which would warrant the jury in finding that he stepped into the gully or between the uneven ties, and on that account was thrown down and run over.
The evidence tends to show, as before stated, that he fell under the cars right at the frog, and was run over. It is purely' a matter of conjecture how he came to fall under the cars. .Juries are not permitted to rest a ver diet purely upon speculation, but there must be testimony which warrants a finding of the essential facts or which would warrant a reasonable inference of the existence of those facts. Language used by this court in the case of Walker v. Louis Werner Sawmill Co., 76 Ark. 436, is peculiarly applicable. It was there said:
“We know that his injury was caused by his falling, but no one can say from the evidence what was the cause of his falling. * * * For aught that the proof shows to the contrary, appellant’s fall may have been the result of accidental misstep, not caused by any of the things charged as negligence in the company. * * * The whole matter was left to conjecture, and in such case the inference from the undisputed evidence most favorable to appellee must be taken, for appellant has the burden. ’ ’
To the same effect see the recent case of Denton v. Mammoth Spring Electric Light & Power Co., 105 Ark. 161, 150 S. W. 572.
The late Justice Brewer, in the case of Patton v. Texas S Pacific Ry. Co., 179 U. S. 658, speaking for the Supreme Court of the United States, said:
“It is not sufficient for the employee to show that the employer may have been guilty of negligence—the evidence must point to the fact that he was. And where the testimony leaves the matter uncertain and shows that any one of a half dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion.”
Learned counsel for appellee rely, in support of their contention that the evidence was sufficient, upon the recent case of St. Louis, Iron Mountain & Southern Ry. Co. v. Hempfling, 107 Ark. 476, and the case of St. Louis, Iron Mountain & Southern Ry. Co. v. Owens, 103 Ark. 61.
In those cases the rule just stated was clearly recog nized; but another rule, equally reasonable and well settled, was stated to the effect that, where it is not purely a matter of conjecture, even though the injury might have occurred in different ways, it should be left to the jury to draw the reasonable inference from the testimony as to the manner in which it occurred. While the jury could not'indulge in pure conjecture, they could determine the weight of the circumstances and determine what inference should be drawn therefrom. In both of those cases we reached the conclusion that the circumstances were such that, while the cause of the injury was not free from doubt, they were sufficient to warrant the jury in drawing the inference that the injury resulted from the negligent acts of the railroad companies.
In the present case, however, we are unable to discover any evidence which would warrant the jury in drawing an inference as to the cause of deceased falling under the car. The jury had no right to assume, in the absence of testimony, that he stepped into the hole and was unable to extricate himself before the car struck him. There is no evidence that he fell into the hole or got into the defective part of the track. The evidence does not show when he fell under the car. Nor is there any evidence that he got his foot hung in the frog, and for that reason was run over by the train.
We repeat that it was purely a matter of conjecture, and that the evidence is entirely insufficient to warrant the verdict of the jury.
There is one other question which, in view of the fact that the case may be tried again, we deem it proper to discuss.
It is alleged in the complaint that appellant is an interstate carrier, engaged in. interstate commerce, and that Caver was engaged in handling interstate cars at the time he received his injury.
This brought the case within the terms of the Employer’s Liability Act of Congress, and characterized it as an action to recover under that statute.
In the answer, appellant denied that Caver was engaged in interstate commerce, and the proof fails to sustain the allegation of the complaint in that regard. Appellee’s counsel concede that there is no proof that deceased was engaged in interstate commerce at the time.
When the court came to instruct the jury, appellant asked for a peremptory instruction to the jury on the ground that appellee had alleged, but failed to prove, that deceased was engaged in interstate commerce. This was the first time during the trial that appellant had raised that question.
It is insisted now, that, appellee having sued under the Employer’s Liability Act, he can not recover in this action under the laws of the State of Oklahoma for an injury which occurred while deceased was engaged in intrastate commerce.
Facts which give the right to recover under the State law, and those which give the right to recover under the Federal statutes, constitute separate and distinct causes of action, for the Federal statute is exclusive where the incident is embraced within interstate commerce service, and does not apply where it is in intrastate service.
The two causes of action may, however, be joined in the same complaint. Kirby’s Digest, § 6079 (subdiv. 6).
There can not, however, be a recovery upon a cause of action other than that stated in the pleadings and upon which the issue is joined. Patrick v. Whitely, 75 Ark. 465; St. Louis, San Francisco & Texas Ry. Co. v. Seale, 229 U. S. 156.
A change in the cause of action may, however, be waived. Sarber v. McConnell, 64 Ark. 450.
Our statute on the subject of amendment of pleadings is very liberal, and provides that “the court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the ease; or, when the amendment does not change substantially the claim or defense, by conforming; the pleading or proceeding to the facts proved.” Kirby’s: Digest, § 6145.
Under this section the court may, in its discretion,^ before the commencement of the trial, allow a complaint to be amended so as to change the cause of action to another one which might have been joined in the same action; and at any time during the progress of the trial may permit an amendment which does not change substantially the claim, so as to conform to the facts proved. The only limitation in the statute is that, after the proof is introduced, the pleadings can not be amended so as to substantially change the cause of action.
It is unnecessary to determine now, in view of the fact that the case is to be reversed on another ground, whether appellant waived the change in the cause of action, or whether the error in allowing the change was prejudicial so as to call for reversal of the case. On the remand of the cause the appellee can, if so advised, amend the pleadings so as to state a cause of action based upon intrastate service of the deceased, and thus make out a right of action under the State law.
There are other questions presented now which, in view of the reversal of the case on other grounds, we do not deem it necessary to discuss. These questions will probably not arise again in this case.
On account of the insufficiency of the evidence, the judgment is reversed and the cause is remanded for a new trial.
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Smith, J.,
(after stating the facts). The provisions of Amendment No. 10, the Initiative and Referendum Amendmenmt, are as follows:
“Section 1. The legislative powers of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people of each municipality, each county and of the State, reserve to themselves power to propose laws and amendments to the Constitution, and to enact or reject the same at the polls as independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the Initiative, and not more than-8 per cent of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon.
“The second power is a Referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety), either by the petition signed by 5 per cent of the legal voters or by the legislative assembly as other bills are enacted. Referendum- petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures referred to the people. All elections on measures referred to the people of the State shall be had at the biennial regular general elections, except when the legislative assembly shall order a special election. Xny measure referred to the people shall take effect and become a law when it is approved by a majority of the Votes cast thereon and not otherwise. The style of all bills shall be, £Be it enacted by the people of the State of Arkansas.’ This section shall not be construed to deprive any member of the legislative assembly'of the right to introduce any measure. The whole number of votes cást for the office of Governor at the regular election last preceding the filing of any petition for the Initiative or for the Referendum shall be the basis on which the number of legal votes necessary to sign such petition shall be counted. Petitions and orders for the Initiative and for the Referendum shall be filed with the Secretary of State, and in submitting the same to the people he and all other officers shall be guided by the general laws and the acts submitting this amendment until legislation shall be specially provided therefor.”
It is apparent that all acts of the Legislature are subject to the referendum except such laws as are neceséssary for' the immediate, preservation of the public peace, health or safety, and to determine whether or not the act in question is subject to the referendum it is necessary for us to consider, and decide two questions: First, is the determination that an emergency exists for putting an act immediately into effect a legislative or a judicial question? Second, if it is a legislative question, has.'the Legislature properly evidenced its finding that an emergency existed and has this finding been given that expression in the act, which excludes it from the referendum?
• As is well known, this amendment is substantially a copy of the Oregon amendment, and shortly after its adoption there it became necessary for the Supreme Court of that State to determine the first question, which is now before us, and in an opinion by Justice Bean of that court the subject was exhaustively discussed, and am<j»ng. other things he said:
‘/This brings us to the question as to whether the legislative declaration that the Portland charter was necessary for the .preservation of the public peace, health and safety is conclusive on the courts. Under the initiative and referendum amendment, laws ‘necessary for the immediate preservation of the public peace, health or safety’ are excepted from its operation. As to them, the action of the legislative and the executive departments is conclusive and final, so far as their enactment is concerned. No power is left to the people to approve or disapprove them. They are not subject to the referendum amendment, and as to them the powers of the other departments of the government derived from the Constitution are unaffected. The legislative assembly, may, in its discretion, put them into operation through an emergency clause, as provided in section 23, article 4, of the Constitution, or it may allow them to become laws without an emergency clause; the necessity or expediency of either course being a matter for its exclusive determination. As to all other laws the amendment applies, and' they can not be made to go into operation for ninety days after the adjournment of the session at which they were adopted, or until after approval by the people, if the Referendum is invoked. Section 28, article 4, of the Constitution, giving the legislative assembly power to put any law into force upon approval by declaring an emergency, has been modified by the amendment of 1902, so as to exclude from the power- to declare an emergency all laws except those necessary for the immediate preservation of the public peace, health or safety. So far, all are agreed. But the vital question is, what tribunal is to determine whether a law does not fall under this classification? Are the judgment and findings of the legislative assembly conclusive, or are they subject to review by the courts? The inquiry is much simplified by bearing in mind that the exception in the constitutional amendment is not confined to such laws us the legr islative ‘ assembly may legally enact by virtue of thé police power of the State, nor to those alone -that may affect the public peace,'' health, or safety. The police power is limited to the imposition of restraints and burdens on persons and property, in order to secure the general comfort, health and prosperity of the State. Tiedeman, Lim. Pol. Power, 1. But the language of the constitutional amendment is broader, and includes all laws, of whatsoever kind, necessary for the immediate preservation of the public peace, health or safety, whether they impose restraints on persons and property, or come strictly within the police powers, or not. The laws excepted from the operation of the amendment do not depend alone upon their character, but upon the necessity for their enactment in order to accomplish certain purposes. As to such laws, the amendment of 1902 does not in any way abridge or restrict the power of the Legislature, which, by the insertion of a proper emergency clause, may unquestionably cause them to go into effect upon approval by the Governor. As the Legislature may exercise this power when a measure is in fact necessary for the purposes stated, and as the amendment does not declare what shall be deemed laws of the character indicated, who is to decide whether a specific act may or may not be necessary for the purpose? Most unquestionably, those who make the laws are required, in the process of their enactment, to pass upon all questions of expediency and necessity connected therewith, and must therefore determine whether a given law is necessary for the preservation of the public peace, health and safety. It has always been the rule, and is now everywhere understood, that the judgment of the legislative and executive departments as to the wisdom, expediency or necessity of any given law is conclusive on the courts, and can not be reviewed or called in question by them. It is the duty of the courts, after a law has been enacted, to determine in a proper proceeding whether it conflicts with a fundamental law, and to construe and interpret it so as to ascertain the rights of the parties litigant. The powers of the courts do not extend to the mere question of expediency or necessity, but, as said by Mr. Justice Brewer, 'they are wrought out and fought out in the Legislature and before the people. Here the single question is one of power. We make no laws. We change no Constitutions. We inaugurate no policy. When the Legislature enacts a law, the only question which we can decide is whether the limitations of the Constitution have been infringed upon.’ Prohibitory. Am. Cas. 24 Kan. 700-706. The amendment excepts such laws as may be necessary for a certain purpose. The existence of such necessity is therefore a question of fact, and the authority to determine such fact must rest somewhere. The Constitution does not confer it upon any tribunal. It must therefore necessarily reside with that department of the government which is called upon to exercise the power. It is a question of which the Legislature alone must be the judge, and when it decides the fact to exist, its action is final.” Kadderly v. City of Portland, 74 Pac. 710.
The decision is of special force because it was rendered on December 21, 1903, which was some years before we borrowed the amendment from the State of Oregon. In the case of State v. Arkansas Brick & Mfg. Co., 98 Ark. 130, Special Judge Norton, for the court, there said: “The case last cited comes with especial force, as it arose in Kentucky after her adoption o.f a code which was subsequently adopted by Arkansas. When one State adopts the laws of another State, it is quite generally held that constructions of the adopted law go along with it.” This is an accepted rule of construction announced in many cases. McNutt v. McNutt, 78 Ark. 346.
Substantially the same question arose in this State about as soon as such question could arise. The Legislature of 1911 passed the act known as the Turner-Jacobson act, which concluded with the following words: “And this act shall take effect and be in force from and after its passage. ’ ’ The act imposed certain duties upon certain officers in connection with the assessment of property for taxation, the performance of which was required before the expiration of ninety days after the close of the session. In the case of Arkansas Tax Commission v. Moore, 103 Ark. 48, which involved the right to refer this Turner-Jacobson act, the court there first determined the constitutional amendment was self-executing and then proceeded to a consideration of the question whether the exception of acts from the operation of the Referendum was a purely legislative question or not.
In discussing that question the court said: “The constitutional provision is also a chart for legislative guidance, and leaves it in the power of the Legislature, in its discretion, to determine what laws come within the exception as necessary for the immediate preservation of the public peace, health or safety, for as to all such its power is not restricted. It was a question exclusively for legislative determination, and such determination alone could bring it within this exception and power of the Legislature- to make it immediately effective and thereby remove it from the general class, of laws upon which the people reserved the right to order the Referendum. Stevens v. Benson, supra; Kadderly v. Portland, 74 Pac. (Ore.) 720; Sears v. Multnomah County, 88 Pac. (Ore.) 522.”
It was there further said: “It is the business of the court to ascertain the legislative intent and determine when the act becomes operative as a law. If the Legislature had used the words of the exception in the amendment and said that the act was necessary for the immediate preservation of the public peace, health or safety, and should go into effect from and after its passage, there could have been no question as to the time of its becoming operative, or if it had used any other words of similar import unmistakably showing such an intention no doubt would have arisen; but it failed to do so, making necessary construction by the court.”
It appears therefore from the decision in the Tax Commission case to-be already settled that the existence of the emergency is exclusively a question for legislative determination. To the same effect, see Oklahoma City v. Shields, 100 Pac. 559.
This principle has long been récognized by this court, and controlled all those decisions arising under section 23 of article 5 of the, Constitution! This section provides that in all cases where a general law can be made applicable, no special law shall be enacted, yet in each case this court has held that whether a special act is necessary is a matter within the discretion of the Legislature. Boyd v. Bryant, 35 Ark. 73; Davis v. Gaines; 48 Ark. 371; State v. Sloan, 66 Ark. 579; Carson v. Levee District, 59 Ark. 513; Powell v. Durden, 61 Ark. 21; St. Louis S. W. Ry. Co. v. Grayson, 72 Ark. 119; State v. Moore, 76 Ark. 197.
“The judiciary can only arrest the execution.of’.a statute when in conflict with the’ Constitution. It can not run a race of opinions upon points of right, reason and expediency with the law-making power.” Cooley’s Const. Lim. (7 ed.) 236; State v. Moore, 76 Ark. 200.
The court held the Turner-Jacobson act subject to the Referendum .in the Tax Commission case, supra, for the reason that “the concluding -provision of the reve-, nue act and the others fixing dates for the performance of certain things before the act could become operative under the constitutional amendment ■ unless . it corneq within, the exception, do not manifest an intention upon the part of the Legislature to put it into effect-as a law necessary for the immediate preservation of the public peace, health or safety, and were not .meant for, and are not a legislative determination that the act should take effect as such, and it could not therefore take effect until ninety days after the final adjournment of the session of the Legislature at which the act was passed or after its approval by the people if.the Referendum is invoked.”
The point which controlled the decision in the Tax Commission case, supra, is the same proposition involved in the second question in the case now under consideration. It appears to have been decided in the Tax Commission case that while it was exclusively a question for legislative determination as to the existence of the emergency excluding the Referendum, yet that the existence of this emergency must be expressly declared in the act, although it is not essential that the declaration of the emergency be in the exact words of the exception in the amendment, if it has used “any other words of similar import unmistakably showing such an intention.” „
Is there any uncertainty in the language which the Legislature has employed? If there is, the act is subject to the Referendum. But we think the doubt does not exist. The Legislature did not employ the formula used before the adoption of the amendment “that this act shall take effect and be in force from and after its passage, or from and after December 31, 1913,” but it undertook to use substantially the language of the emergency clause of the amendment, and did employ its exact words except for the omissions of the words “immediate preservation.” The use of these words would have to be declared purposeless, and the words themselves without meaning, and the Legislature to have had no intent in their employment, if it be not held that by their use the Legislature undertook to declare an emergency which should take the act from without the operation of the Referendum. The omissions of the words “immediate preservation” is said to be fatal because if its purposes can not be immediately accomplished it is subject to the Referendum. But this act, with the emergency clause, became a law when it was approved by the Governor and it was immediately a law upon his approval, although its provisions were not enforceable until after December 31, 1913.
One purpose of Amendment No. 10 was to confer upon the Legislature the power to pass laws that were necessary for the immediate preservation of the public peace, health or safety, without reference to the people under the Referendum. Immediate, in the sense of this amendment, means those laws that should take effect in order to conserve this purpose before the time when/the people under the provisions of the amendment would have the opportunity to vote upon them. In other words, such laws as the Legislature deem necessary for the im mediate preservation of the public peace, health or safety, they may so find, and declare, and put in force at any time before the next general election. The framers of Amendment No. 10, and the people who adopted it, did not intend that laws necessary for the immediate preservation of the public peace, health or safety should wait the slow processes of the Referendum, hence the amendment provides that the Legislature could enact such laws and put them in force before the time required for the people to pass on them under the Referendum, But the amendment does not require that laws which the Legislature determines and declares necessary for the immediate preservation of the public peace, health or safety shall be put into effect immediately. In the absence of such requirement a law should not be held unconstitutional because the Legislature, acting upon the facts before them, in their judgment and discretion, deemed it wise to postpone the time for the law to take effect until some future date. The judgment of the court below is therefore affirmed.
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Wood, J.,
(after stating the facts). Appellant contends that appellee did not set up in his answer a sufficient defense or plea of usury, but appellant did not challenge the sufficiency of the answer in the court below by demurrer or otherwise. He went to trial as if the issue were properly made, and we must so treat it here. The testimony was adduced on that issue, and appellant will not be heard here for the first time to raise the question that the answer was not sufficient.
The evidence was sufficient, in fact practically undisputed, to sustain the finding of the court to the effect that appellee executed his original note for $200 due in five years, bearing 6 per cent interest from date, and that he only received from the appellant, the payee of the note, the sum of $151.10, or, at most, the sum of $160, conceding that Hears was the agent of appellee. Appellee gave coupon interest notes payable annually, bearing 10 per cent interest after due. It thus appears that the appellant deducted at the time of the execution of the note sued on the sum of $40, or 4 per cent on the principal note of $200 for the period of five years.
Section .5389 of Kirby’s Digest provides that, “All contracts for a greater rate of interest than 10 per. centum per annum shall be void as to principal and interest.” Art. 19, § 13, Const, of Ark.
Appellant and appellee, under the above statute and Constitution, were forbidden to contract for a rate of interest whereby more than 10 per cent per annum would be paid. As appellee only received a loan of $160, at the highest rate of interest for the full period of five years he should have paid, including principal and interest, the sum of $240. But, under the contract, as expressed in the note and shown in the evidence of appellee and the correspondence, appellee was compelled to pay the principal note of $200 and five coupon notes of $12 each, making a total of $260, or $20 more than the legal rate. This is clearly usurious, unless appellant, under the law, could deduct the 4 per cent interest on the principal note of $200 for the full period of five years.
Our statute, Kirby’s Digest, § 5382, provides that: “It shall be lawful for all persons loaning money in this State to receive or discount interest upon any commercial paper for a period not exceding twelve months, at any rate of interest agreed upon by the parties, not to exceed 10 per centum per annum.” This statute was passed April 20, 1895, at the session of the Legislature following the decision of this court in Bank of Newport v. Cook, 60 Ark. 289, wherein we held that the taking of the highest rate of interest in advance on negotiable paper having twelve months to run is not usury. In that case the court had before it a negotiable note having only twelve months to run. The statute then in force only limited the right to discount commercial paper, but did not fix any limit as to time. The court having one year paper before it, only decided that there was authority for discounting such paper, but, of course, did not determine that the discounting of commercial paper for a longer period than one year was inhibited. Then, it being left open by the decision of the court, the Legislature following limited the time for discounting commercial paper to a period not exceeding twelve months. The Legislature having made it lawful to discount commercial paper for a period of twelve months, must have intended to prohibit the discounting of commercial paper having a longer time to run under the doctrine of expressio unius est exclusio alterius. This statute shows the legislative policy as to the subject of usury in this State. But even if there were no statute upon the subject, this court would not extend the doctrine announced in Bank of Newport v. Cook, supra, to commercial paper having a longer time to run than twelve months, for we are of the opinion that such time is as long as such paper should be allowed to be discounted under the trend of our own decisions and the weight of authority in other jurisdictions.
' Mr. Parsons, in his work on Contracts, says: “There seems to be a strong disposition to limit this practice to short paper, or at least not to apply it to long loans or discounts.” 3 Parsons on Contracts, No. 131, quoted by Mr. Justice Battle in his dissenting opinion in Bank of Newport v. Cook, supra.
If it be conceded that the note in suit was an Indian Territory contract, still the laws of the Indian Territory at the time the note was executed were the same on the subject of usury as our law on that subject. Chapter 109, Mansfield’s Digest of the Arkansas Statutes, was extended over the Indian Territory by act of Congress of May 2,, 1890, and section 4732, chapter 109, Mansfield’s Digest, provides: “All contracts for a greater rate of interest than 10 per centum per annum shall be void as to principal and interest.” Sulphur Bank & Trust Co. v. Medlock et al., 25 Okla. Rep. 73. See also Brewer et al. v. Rust, 20 Okla. 776.
This court must take judicial knowledge of the laws of other States. Kirby’s Dig., § 7823. See, also, St. Louis, I. M. & S. Ry. Co. v. Brown, 67 Ark. 302; St. Louis, I. M. & S. Ry. Co. v. Cleere, 76 Ark. 377.
The judgment is therefore affirmed.
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Wood, J.,
(after stating the facts). The court did not err in overruling the demurrer to the indictment. The statute under which appellant was indicted is section 10 of an act approved December 17, 1838, and reads as follows:
“Whoever shall, by force or menaces of bodily harm, or by other unlawful means, set any one at liberty who is in custody, after a lawful arrest either before or after conviction, for any offense mentioned in this act, knowing or being informed that such offender is lawfully arrested as aforesaid; or any officer or other person having such offender in custody, upon a lawful arrest or conviction for any of said offenses, who shall voluntarily, corruptly and of purpose, let such prisoner escape, shall, on conviction, be imprisoned in said jail or penitentiary house not less than two nor more than seven years. All persons being present, aiding and abetting, or ready and consenting to aid and abet in any of the foregoing offenses shall be deemed principal offenders, and indicted and punished as such.” See also Ear by’s Digest, § 1673.
The indictment follows substantially the language of the statute, and is sufficient. While the indictment is not artfully drawn, it does charge that the appellant unlawfully, wilfully and maliciously and feloniously, by force and menaces of bodily harm, set at liberty one Charlie Spears, and “by then and there aiding, abetting, advising and encouraging the said Charlie Spears to escape from custody,” and “by then and there forcibly catching, holding and detaining the said James N. Crenshaw in his efforts to recapture the said Charlie Spears,” etc.
The indictment is sufficient to advise the appellant. that he was charged with the crime designated as “escape and rescue,” by aiding Charlie Spears, who was in lawful custody, to make his escape by force exerted by “catching, holding and detaining” the officer having him in charge, and in this manner interfering with the officer in his efforts to recapture the prisoner who had escaped. The indictment charges a public offense, and it charges only one offense. Therefore, the court did not err in overruling appellant’s motion to arrest the judgment, and also the motion to require the State to elect.
Appellant contends that there is no evidence to sustain the verdict, and we are of the opinion that this contention is sound. The testimony wholly fails to establish the charge made in the indictment that appellant effected the escape and rescue of Charlie Spears “by then and there forcibly catching, holding and detaining the said James N. Crenshaw,” etc. There is no testimony to sustain this allegation. There is no charge in the indictment that appellant committed the alleged offense in any other manner than by “forcibly catching, holding and detaining the said James N. Crenshaw,” no other “unlawful means” is alleged. Appellant did not forcibly catch hold of the officer, and did not forcibly hold and detain him. The charge as. laid is not proved. The verdict is without evidence to sustain it, and for this reason the court erred in not granting appellant’s motion for a new trial.
The judgment is therefore reversed and the cause is remanded for a new trial.
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McCulloch, C. J.
Appellees, J. J. McCloy and Y. J. Trotter, instituted this action in the circuit court of Drew County against appellant, Bankers Trust Company of St. Louis, a foreign corporation, to recover damages, laid in the sum of $2,478, on account of the breach of an alleged warranty in the sale of certain shares of the capital stock of the Chicot Bank & Trust Company, a banking corporation domiciled and doing business at Lake Village, Chicot County, Arkansas.
The case was tried before the circuit court sitting as a jury, and the trial resulted in a judgment in favor of appellees for the recovery of the amount of damages claimed by them.
Appellant owned 160 shares of the capital stock of the Chicot Bank & Trust Company, of the face value of $100 per share.. Negotiations between the parties looking to a sale of the stock were begun in February, 1910, which resulted in a sale of said shares by appellant to appellees on March 4,1910, at the price of $109 per share. The negotiations were conducted and consummated through written correspondence and telephone conversations, appellees residing at Monticello, Arkansas, and appellant acting through its officers from the St. Louis office.
There was no express warranty of the stock, either as to the title or value, and appellees rely for recovery upon an implied warranty against encumbrances, and they adduced testimony tending to show that the stock was encumbered at the time of the sale to the extent of the amount named in the complaint.
The Chicot Bank & Trust Company was organized in August, 1907, and two other banking institutions doing business in Lake Village, namely, the Chicot Bank and the Bank of Lake Village, were at the time of its organization merged into.it. The assets of the two old banking institutions were taken over by the new one and the liabilities thereof assumed and stock in the new institution was issued to the stockholders of the two old ones of the estimated face value of said assets.
At the first meeting of stockholders upon the organization of the Chicot Bank & Trust Company a resolution was unanimously adopted and placed upon the records of the company reciting the conditions upon which the assets of the Chicot Bank and the Bank of Lake Village were to be taken over and the liabilities thereof assumed and stock issued in payment thereof, the estimated value of the assets of the Chicot Bank being $25,500 and of the Bank of Lake Village $20,247.50. The resolutions continued as follows:
“Said stock when issued shall be charged at par to the accounts of said banks on the books of said company, provided that the issue of said stock shall not exceed 97 per cent standing to the credit of said respective banks until all the bills receivable, loans, overdrafts and other indebtedness turned in by said banks as-assets as shown by said exhibits have been collected, and should there be any loss on any such items, such loss shall be charged to said respective banks against said balances of accounts so retained, together with any extra expense incurred in collecting any of said items so turned in as assets or in the attempt of collection against said accounts so retained shall also be charged and any current expenses or current liabilities that said company may be required to pay and not shown on above exhibits and which said respective banks should have paid but have been overlooked; provided, further, that should said accounts so retained not be sufficient to cover all of above items that may be charged as provided, then this company is hereby authorized and empowered to, at any time, retain a sufficient amount of dividend declared and ordered paid on the aforementioned issue of stock to reimburse it for any and all losses and expenses incurred in the collection of the assets of either bank (provided that the real estate and furniture and fixture accounts turned in by both banks are not included in this provision, but same are accepted at the book and agreed value, and any loss sustained on same must be borne by said company), said balances of said accounts so to the credit of either bank shall be under the exclusive control of said company and may be retained by it until all of the bills receivable, loans and other items shown on said exhibits are collected and satisfied to its satisfaction. Any balances remaining when said company finally decides to close said accounts may be paid to said banks in paid-up stock (at par) of this company or in cash as its board of directors may direct.”
The stock sold and transferred by appellant to appellees was a part of the stock issued to the stockholders of the Bank of Lake Village in payment of said estimated value of the assets of that institution. Of that stock there were 147 shares issued to J. E. Franklin, who appears to have been one of the officers of appellant corporation, and who was a stockholder of the Bank of Lake Village. This stock, together with thirteen shares issued to'other stockholders of the Bank of Lake Village, constituted the 160 shares sold and transferred by appellant to appellees.
The stock certificates were transferred in writing by appellant to appellees, but on the presentation of same for transfer upon the books of the company and issuance of new stock,- the officers of the Chicot Bank & Trust Company called attention to the fact that the stock was encumbered with liability for any loss which might finally accrue upon the assumed liabilities and assets of the Bank of Lake Village, and said officers declined to issue new stock except upon the recognition and assumption by appellees of such liability. Appellees protested against any such liability, but finally accepted, under protest, the issuance of said shares of stock thus encumbered with the asserted liability.
Subsequently the Chicot Bank & Trust Company made demand upon appellees for the amount ascertained to be the pro rata part of such encumbrance charged against said stock, and the same was paid by appellees, the amount so paid, together with amounts deducted from dividends on the stock, aggregating the amount claimed by appellees in their complaint.
Appellees had no notice of the existence of the aforementioned stockholder’s resolution when they purchased the stock from appellant and paid for it, nor did they have any notice that the Chicot Bank & Trust Company asserted any lien against the stock. The first information on the subject which came to them was when they presented the assigned shares for transfer on the books of the company.
It is not contended that there existed statutory lien on the stock in favor of the Chicot Bank & Trust Company, and it is clear that none existed.
The statutes of this State provide that the stock of every such corporation shall “be transferred only on the books of such corporation in such form as the directors shall prescribe; and such corporation shall at all times have a lien upon all the stock or property of its members invested therein for all debts due from them to such corporation.” Kirby’s Digest, § 853.
There were no “debts due” to the corporation from appellant as shareholder when the shares were assigned.
The aforementioned resolution did not attempt to create a liability of the shareholders. It merely provided that, should there be any loss, the same should “be charged to said respective banks” and that the company was “authorized and empowered to, at any time, retain a sufficient amount of dividends declared and ordered paid on the aforementioned issue of stock to reimburse it for any and all losses and expenses incurred in the collection of the assets of either bank.” It created an encumbrance against the stock itself which “followed the stock,” so to speak. That encumbrance was a conditional liability and did not, in any sense, constitute a “debt due” to the corporation within the meaning of the statute. See authorities cited in appellant’s brief.
There existed originally at common law no lien in favor of a corporation on its shares of stock for debts due from stockholders iii the absence of statutory or charter authority. No lien could be created by by-law or resolution or by common custom, for the policy was to discourage secret liens which might hamper the transfer of shares of stock. 2 Cook on Corporations, § 521; 4 Thompson on Corporations, § 4000. But that policy was even at common law somewhat relaxed and the rule was recognized that such a lien might, as between the corporation and its shareholders and a purchaser with notice, be created by by-law, and even by common custom in such dealings. Child v. Hudson’s Bay Co., 2 P. Wms. 207. That is the law now, we think, according to the weight of American authority. 4 Thompson on Corporations, § § 4003-5; 2 Cook on Corporations, ■§ 522; Jennings v. Bank, 79 Cal. 323; Vansands v. Middlesex Co. Bank, 26 Conn. 144; Reading Trust Co. v. Reading Iron Works, 137 Pa. St. 282; Des Moines Nat. Bank v. Warren Co. Bank, 97 Iowa, 204.
The distinction between liens created by statute or charter and those created by the by-laws of a corporation is pointed out in an opinion of the Supreme Court of Mississippi as follows:
“It is well settled that at common law a corporation has no lien on the stock of its shareholders for an indebtedness to it. Such liens, when they exist, result either from a provision in the charter to that effect, or from a by-law enacted by the corporation in pursuance of authority conferred by the charter. Usually the lien, when it exists at all, is given by the charter, which, being a public law, as well as the act by which the corporation is created, is notice to all persons dealing with the company. Union Bank v. Laird, 2 Wheat. 390. The lien may, however, be created by a by-law, as was held at an early day by Lord Chancellor Macclesfield in Child v. Hudson Bay Co., 2 P. Wms. 207, and very generally since. When thus created, there seems to be some diversity- of opinion as to its effect against an innocent purchaser of the stock for value and without notice of the lien. * * * This difference is more apparent than real, for it seems to be well recognized that a by-law has no extra-corporate force, and is only binding on those dealing with the corporation who have notice of it, or who deal with it under such circumstances that they are bound to take notice of it. A solution of the question will be found in the right determination of the categories in which notice is inferred. By-laws of private corporations are not in the nature of legislative enactments, so far as third persons are concerned. They are mere regulations of the corporations for the control and management of its own affairs. They are self-imposed rules, resulting from an agreement or contract between the corporation and its members to conduct the corporate business in a particular way. They are not intended to interfere in the least with the rights and privileges of others who do not subject themselves to their influence. It may be said with truth, therefore, that no person not a member of the corporation can be affected in any of his rights by a corporate by-law of which he has no notice.” Bank of Holly Springs v. Pinson, 58 Miss. 421.
The purchaser of shares of stock is chargeable with notice of liens created under statutes or charter, but not those arising under the by-laws of the corporation or under the custom of dealing between the corporation and its shareholders. The reason for this rule can not be stated in language clearer than that quoted above from the opinion of the Supreme Court of Mississippi. And that rule is sustained by the great weight of authority. 2 Cook on Corporations, § § 522 and 525; 4 Thompson on Corporations, § 4007; Helliwell on Stock and Stockholders, §§47 and 164; Bank of Holly Springs v. Pinson, supra; Bank of Culloden v. Bank of Forsyth, 120 Ga. 575; Des Moines Nat. Bank v. Warren Co. Bank, supra; Driscoll v. Mfg. Co., 59 N. Y. 96; Buffalo German Ins. Co. v. Third Nat. Bank, 162 N. Y. 163; Anglo-Californian Bank v. Grangers’ Bank, 63 Cal. 359; Just v. State Sav. Bank, 132 Mich. 600; Bryon v. Carter, 22 La. Ann. 98; Sargent v. Franklin Ins. Co., 25 Mass. 90; Planters’ Mut. Ins. Co. v. Selma Sav. Bank, 63 Ala. 585; Brinkerhoff-Farris Co. v. Home Lumber Co., 118 Mo. 447.
“Where the right to a lien rests on a by-law merely, it can not,” says Mr. Thompson in his work on Corporations, “be enforced against a bona fide transferee of the shares who had no knowledge of its existence. A by-law does not ordinarily impart notice. The policy of the law is against secret hens in respect of personal property and where the corporation establishes a by-law reserving a lien upon its shares for any debt due it by the holder of snch shares it owes it to the public to make known that fact by printing a notice of it on the certificate of shares or by some other appropriate means. ’ ’ Sec. 4007.
The same author (section 4003) states the rule, and cites numerous authorities in support thereof, that “a by-law of this character would not be valid as against good faith transferees without notice of its existence where the only authority on the subject given fhe corporation by its charter or the general law was merely to prescribe and regulate the mode of transferring shares.”
Shares of stock in a corporation do not constitute negotiable paper within the law merchant, but in some of the authorities such instruments are spoken of as possessing elements of quasi-negotiability, and the modern authorities generally lay down the rule that necessities of business require that shares of stock should be treated prima facie as evidence of unencumbered ownership of the holder thereof named in the certificate and upon the books of the company.
Judge Folger, speaking for the New York Court of Appeals in Driscoll v. Mfg. Co., supra, said:
“Shares of stock are in general personal property, to be dealt with as such, and with as much freedom and ease. The right to them is a chose in action, and though not transferrable, so as to give the same safety in dealing, as is given to a bona fide taker of negotiable paper, the current of authority in this State is to the protection of the bona fide vendee, against secret or equitable claims thereto of one who has indued the vendor with the indicia of ownership. It is evident that such a by-law as this in question, not made known upon the certificate of stock issued by the corporation, if it is to be upheld, is a very serious hindrance to the ease and safety with which sellers and buyers of shares of stock may deal therewith.”
Mr. Justice Davis,, speaking for the Supreme Court of the United States in the case of Bank v. Lanier, 11 Wall. 369, said:
“It is no less the interest of the shareholder, than the public, that the certificate representing his stock should be in a form to secure public confidence, for without this he could not negotiate it to any advantage. ’ ’
Mr. Helliwell lays down the same doctrine as follows:
‘ ‘ Stock certificates are, at the present day, the basis of large commercial transactions throughout the world, and are bought and sold in open market with the same freedom which characterizes the transfer of promissory notes and other forms of securities. They are not, it is true, negotiable instruments; so far as practicable, however, they are held by the courts to possess the elements of negotiability. Under the corporate seal, the public is assured that the holder of a certificate is entitled to the number of shares stated therein, and that these shares are transferrable on the books of the corporation only in person or by attorney, and upon surrender of the certificate. This constitutes a representation on the part of the corporation that a purchaser of the certificate, upon presenting the same to the corporation, duly assigned, with power of attorney to transfer, may have the shares stated recorded in his name.” Helliwell on Stock and Stockholders, p. 309.
The rule is unaffected by the fact in this case that the resolution giving a lien upon the stock, or, rather, the dividends, preceded the issuance of the stock and that the stock was issued pursuant to the resolution.
The resolution could not rise to a higher dignity than a by-law of the corporation. It was merely a contractual lien between the corporation and its shareholders, and all the reasons given for the requirement of notice to bona fide purchasers apply.
Appellees were bona fide purchasers for value without any notice of the bank’s claim. There was nothing upon the face of the shares of stock to give them notice and they were not, as we have already seen, chargeable with notice of the contents of the resolution adopted. They were entitled, as a matter of right, to have the stock transferred on the books of the company and new certificates therefor issued. The officers of the corporation had no legal right to refuse to make the transfer and issue new stock. Appellees had a complete remedy to compel the transfer or to recover damages from the corporation on account of such refusal to make the transfer. 2 Cook on Corporations, § § 389 et seq.
Since, as we have seen, appellees obtained a clear and unencumbered title to the stock by their purchase from appellant, with the right to compel the corporation to recognize the transfer, there was no breach of the implied warranty as to title. Appellees were not compelled to comply with the demands made by the officers of the corporation, and were volunteers in making payment of the sum demanded. The implied warranty was only against legally enforceable demands against the stock, and an enforceable demand, however just in morals, was not an encumbrance which constituted a breach of the warranty.
It follows that in no view of the case as presented by appellees have they any valid claim against appellant for damages, and the judgment is wholly without evidence to sustain it. The judgment is, therefore, reversed and the cause dismissed.
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Wood, J.,
(after stating the facts). The court erred in not granting the prayer of appellant. Appellee, according to his own evidence, knew of the unsafe condition of the machinery and of the place where he had to work. He entered upon and continued in the service of appellant, knowing the condition of the collar and set screws. He made these, and he continued to work for a long time knowing the location of the oil tank. As stated by counsel for appellant: “Appellee was the architect of his own misfortune.” The dangers were obvious, and he assumed the risks of them. St. Louis, I. M. & S. Ry. Co. v. Goins, 90 Ark. 387, and cases there cited. The evidence shows that something like ten days before the injury the manager said “that he would make a place for the oil tank.” But this evidence is hardly sufficient to show that appellee continued in the service of appellant upon the latter’s promise to repair. For the evidence shows that appellee had worked there for a long time with the oil tank in the same location it was at the time he received his injuries-. It 'does not appear that he ever protested against the location of the oil tank, or that he had ever requested appellant to change it. For aught, that the evidence shows to the contrary, appellee was perfectly willing to continue in the service of appellant with the oil tank in the situation it was at the time the injury occurred.
For the error in refusing appellant’s prayer the judgment is reversed, and the cause is remanded for a new trial.
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Hart, J.,
(after stating the facts.) “A telegraph company owes a duty to the transmission and delivery of messages only to persons of whose beneficial interest in the telegram the company receives information from the face of the telegram itself or from other sources; and it is liable for special damages only where notice of the facts which give rise thereto is received either from the face of the telegram or from other sources.” Western Union Tel. Co. v. Weniski, 84 Ark. 457; Western Union Tel. Co. v. Blackmer, 82 Ark. 526.
It owes a duty to the party whose beneficial interest appears from the face of the telegram because injury to such person is the natural and probable consequence of its want of care. We think the body of the message brings this case within the rule, and that appellant ought reasonably to have anticipated' from the language of the telegram that the party interested would suffer mental anguish. ■
The principal contention made by counsel for appellant is that the court erred in giving the following instruction:
“The jury are instructed that, upon receipt of the message, it became and was the duty of the defendant to use reasonable effort for the prompt delivery of .same; and if you believe from a preponderance of the evidence that it failed -to use such effort, then and in that event you are told that it was guilty of negligence. As to whether, under the facts and circumstances detailed in evidence by the witnesses, the defendant company was negligent in the delivery of this message is a question to be determined by you from all the evidence in the case.”
They urge that the court should have told the jury as a matter of law that appellant discharged its duty when it learned that the addressee of the message was not in Magnolia, and that it owed no duty except to deliver the message to him in person. We think the question of negligence in the delivery of the message, under the facts and circumstances of this case, was properly left to the jury to determine.
“Whether the messenger who is charged with the delivery of the telegram, and fails to present it at the residence or place of business of the addressee, has used ordinary diligence, such as the law requires, is a question of fact for the jury.” Western Union Tel. Co. v. Mitchell, 40 L. R. A. (Tex.) 209; Pope v. Western Union Tel. Co., 9 Ill. App. 283; Western Union Tel. Co. v. Woods, 44 Pac. (Kan.) 989; 2 Joyce on Electrical Law, § 744.
At least ordinary and reasonable effort must be made to deliver the message. The undisputed evidence in this case shows that if the railroad company had delivered the message at the residence of Mr. Burleson, where Mr. Menifee and family were staying, the plaintiff would have received it, and could have reached the bedside of her husband before his death.
It is next insisted that the verdict is excessive. The amount recovered was $750. Where there is1 no fixed rule of compensation, the theory of the law is that the verdict of the jury is conclusive, unless it appears to be the result of passion or prejudice. In the present case the negligence of the defendant prevented a wife from reaching the bedside of her dying husband and ministering to him; and wre do not think the verdict was excessive.
The judgment will be affirmed.
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Hart, J.
This is the second appeal in this case. Por a detailed statement of the facts upon which the opinion in the former appeal was based, reference is made to the case of Butler v. Dodson, 76 Ark. 569.
A recapitulation of the facts is as follows: T. M. Dodson and C. W. Dodson brought an action for debt in the Ashley Circuit Court against Joseph Meehan, and also sued out a writ of attachment, which was levied upon certain personal property belonging to him.
Mrs. Mahnda M. Plair intervened, claiming the property attached by virtue of a mortgage executed in her favor by Joseph Meehan. During the progress of the suit, Joseph Meehan died. His death was suggested and admitted; and Turner Butler was appointed administrator of -his estate. He filed an answer to the complaint, controverting the grounds of the attachment.
Upon final hearing, the attachment was dissolved. The court rendered judgment in favor of the Dodsons against the estate of Joseph Meehan, deceased, for the sum of $1,840, and in favor of Malinda Plair against the estate of Meehan for $940; and adjudged that the money in the hands of the sheriff arising from the sale of the attached property be divided between the Dodsons and Malinda Plair in proportion to the amounts for which they recovered judgment. No appeal was taken from the order dissolving the attachment.
In disposing of the case, the court said: “After consideration of the matter, we are of the opinion that the judgment in favor of plaintiffs for $1,840 should be affirmed; that in other respects the judgment should be reversed, and the cause remanded for further proceedings to determine the amount due on the mortgage of Mrs. Plair; that, upon such amount being ascertained, the money- in the hands of the court be applied to the payment of the same; and that the balance of the money, if any, be turned over to the administrator or legal representatives of Joseph Meehan, deceased.”
Upon the remand of the case to the circuit court, a judgment was rendered which it is not necessary here to set out, for the reason that it was set aside on the application of the Dodsons as having been procured by fraud. Subsequently, at the January term, 1910, of the Ashley Circuit Court, the following judgment was rendered in said cause:
“T. M. and C. W. Dodson, plaintiffs, v. Turner Butler as administrator of the estate of Jos. Meehan, defendant; Malinda Plair, intervener.
“Now on this day come the plaintiffs by their attorneys, Greaves & Martin, and the defendant, Turner Butler, as administrator of the estate of Jos. Meehan, comes in person and by his attorneys, Norman & Norman and E. O. Mahoney, Esq., and the intervener, Malinda Plair, by George & Butler, Norman & Norman and E. O. Mahoney, Esq., her attorneys. And the court submits to the jury, upon the directions of the Supreme Court of Arkansas, the question of the amount due from the estate of Jos. Meehan to the intervener, Malinda Plair, upon the mortgage of said intervener; and also directs the jury to ascertain what sum, if any, was paid to the plaintiffs, T. M. Dodson & Son, by order of the court out of the fund arising from the sale of the property attached in this action. And the jury, after 'hearing the evidence, returned into court the following verdict, towit:
“ ‘We the jury, find for the intervener, Malinda Plair, and find that the amount due her secured by the mortgage in this case is $2,591.32, with interest from the 18th day of January, 1910, at 6 per cent, per annum until paid. We further find the sum of $1,232.75 was paid to T. M. Dodson & Son by order of the court out of said fund of $1,660, arising from said attached property. F. S. Cannon, Foreman.”
“And thereupon the court proceeded to hear the motion of the defendant and intervener to require the defendant, Dodson, to pay the money into court; and, after hearing the evidence of witnesses and the argument of counsel, the court doth order and adjudge that the plaintiffs, T. M. Dodson and C. W. Dodson, shall, within thirty days from this date, pay into court the said sum of $1,232.75, to be distributed, after being so paid into court, according to the further order thereof to be made herein; and that the intervener, Malinda Plair, have and .recover of and from the defendant, Turner Butler, administrator of Jos. Meehan’s estate, judgment for the sum of $2,195.82, with 6 per cent, interest thereon from the 18th day of January, 1910, until paid.”
To reverse that judgment T. M. and C. W. Dodson have appealed to this court.
The judgment recites that the respective parties were present at the trial by their attorneys. This constituted an appearance of the parties. The judgment also recites that the case was heard upon evidence, and that the issue of the amount arising from the attached property that was paid to T. M. Dodson & Son by order of the court was submitted to a jury for its determination. T. M. and C. W. Dodson having appeared to the suit, and the issues of fact involved therein having been without objection submitted to the jury for their determination upon the evidence adduced at the trial, it becomes immaterial for us to decide whether the action should have been brought by an independent suit as contended by the appellants; or whether a summary proceeding for restitution, as claimed by appellees, was sufficient. Hawkins v. Taylor, 56 Ark. 45.
The question of whether the judgment can be enforced by contempt proceedings is not presented by the record; and we do not decide that point. N
The judgment will be affirmed.
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Hart, J.,
(after stating the facts). In matters of contract justices of the peace have jurisdiction where the amount in controversy does not exceed the sum of three hundred dollars, exclusive of interest. Const. 1874, art. 7, § 40.
Section 4605 of Kirby’s Digest reads as follows: “A setoff or counterclaim, though exceeding in amount the jurisdiction of the court, may be used to bar and extinguish the demand of the plaintiff; but no judgment shall be rendered in favor of the defendant for the excess, unless such excess is within the limits of the court’s jurisdiction as to amount. The -judgment shall ascertain the amount due to the plaintiff and give him a credit therefor on the claim used as a setoff or counterclaim.”
In the case of Bunch v. Potts, 57 Ark. 257, the defendant interposed a counterclaim for $360. The court said: “The amount of the counterclaim placed it beyond the jurisdiction of the justice; and the appeal to the circuit court invested that court with no power to try any issue that might not have been tried by the justice.” That is to say, the court held that the sum demanded, and not the amount recovered, determines the question of jurisdiction. It is no answer to say that here the defendant only seeks to recover the excess, which is an amount within the jurisdiction of the justice court; for the defendant asked that a part of his counterclaim be used to bar or extin guish the claim of the plaintiff, and that makes it as much a' part of its demand as a judgment in its favor for the excess'. The Constitution contemplates that a justice of the peace shall only have jurisdiction to adjudicate matters within his juris die-' tion. Here the defendant proposes that the justice shall pass upon an amount beyond his jurisdiction; for it is settled that the circuit court on appeal can render no judgment that the justice might not have rendered. The pleading of the defendant in the present case required the justice to pass upon the question of whether it was entitled under the contract between the parties to the suit to recover the sum of $500 as liquidated damages.
The effect of the defendant’s pleading is to ask a recovery for the sum of $500; for if a part of this sum is to be applied to the extinguishment of plaintiff’s claim under the judgment of the court, it, being a part of the judgment, is as much a recovery as that part of the judgment which is for the excess. This principle is illustrated in the case of Hunton v. Luce, 60 Ark. 146, where the court held that “a plaintiff may bring his action for less than is due him, remitting the balance, and thus bring his case within the jurisdiction of a justice of the peace.” The court, after calling attention to the opposing authorities on the question, said: “We will only announce our conclusion that the appellants had the right to bring their case within the jurisdiction of the justice of the peace by remitting a portion of the principal of their note. We do not see that it is any violation of the rights of a debtor to allow his creditor to remit,by voluntary credits a portion of his debt, and thus bring his claim within the jurisdiction of an inferior court. After the judgment of the inferior court is rendered upon the reduced claim, the part remitted is completely extinguished, and can never afterwards be asserted against the debtor.”
Applying that principle to the case at bar, it will be seen that the defendant has not offered to remit a portion of his counterclaim so as to bring it within the jurisdiction of the justice; but, as already shown, is endeavoring to enforce his whole demand.
As stated in the case of Derr v. Stubbs, 83 N. C., p. 539: “The remission must be absolute of all demand in excess of the justice’s jurisdiction, and such as would be cognizable before him if prosecuted by the defendant as an original cause of action.” Remission implies forgiveness, and means a voluntary relinquishment of a claim or a part thereof by the party capable of asserting it, and does not refer to the extinguishment of a debt or claim by agreement of the parties or by judgment of a court. It follows” that so much of ’section 4605 -of Kirby’s Digest as provides that the excess only of the counterclaim or setoff shall be within the jurisdiction of the justice is unconstitutional. -The court was correct in holding that it had no jurisdiction of the counterclaim in the form in which it was presented.
Again, it is contended by counsel for defendant that the matters set up are available as a defense to the action. Now, a defense goes to the plaintiff’s right of -action. Under the terms of the contract between the parties to the suit, a-complete performance of the contract on the part of the plaintiffs was not required before they should be entitled to any pay for the timber cut and manufactured into lumber. On the contrary, it contemplated that they should be paid when the lumber was loaded on the cars,and delivered to the defendant. Hence the matters set up could not be used to defeat plaintiffs’ right of action by disproving it. This is borne out from the fact that the time limit given plaintiffs by the terms of the contract had not expired, and they had more than a year within which to finish removing the timber. The pleading was a counterclaim, which is defined to be “a demand existing in favor of the defendant against the plaintiff, and one which he might have prosecuted although the plaintiff had brought no action.” Bliss on Code Pleading (3d ed.), § 348.
The judgment will be affirmed.
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McCulloch, C. J.
Appellants, Dickie & Goelzer, are liverymen in the town of England, Lonoke County. Appellee Henderson sued them to recover damages for alleged negligence in hiring to him for use a vicious or unbroken horse. He recovered judgment below for damages in the sum of $1,500, and a reversal of the case is sought on the ground that the evidence is not sufficient to sustain the verdict.
There is ample evidence to justify a finding that the horse that appellants hired to appellee ran away with him and injured him; but it is insisted that there is no evidence tending to show that appellants knew of the vicious tendencies of the horse, or failed to exercise diligence in discovering the horse’s condition. After careful consideration of the matter, we are of the opinion that there is sufficient evidence to warrant the jury in finding that appellants were guilty of negligence, either in failing to discover the vice or lack of training of the animal, or in hiring to appellee a horse which was not suitable for use.
Appellee asked for a gentle horse, and was given one which ran away with him as soon as he started on his journey, and seriously injured him. The horse’s actions, as soon as he was driven out of the barn (according to the statements of appellee and his witnesses), showed that he was without training, and was not a gentle horse. Other witnesses who had tried to purchase the horse from appellants for saddle purposes testified that they tried to ride him, and that his actions on the occasion showed that he was unbroken, at least to the saddle, and, as they expressed it, that he was not. “bridlewise.” It is true these witnesses did not attempt to drive the animal, but the fact’ that the horse was shown to be entirely lacking in training for the saddle, and was not bridlewise when so used, had some tendency to establish the fact that the horse was not a trained horse, and could not be deemed a gentle horse, such as appellee had asked for when he went to hire one. Appellee testified that a few weeks after he received the injury both of the appellants, on different occasions, admitted to him that they had made a mistake in giving him a wild horse, instead of a gentle one. The testimony on this point is conflicting, but we think it made a question for the jury to determine, and that the verdict should not be disturbed.
The motion for new trial, filed during the term m which the judgment was rendered, raised only the question of-the sufficiency of the evidence, no other error being assigned. At the next term of court another motion for new trial was presented, on the ground of newly discovered evidence. On the hearing of this motion, the court did not grant a new trial, but found that the judgment was excessive, and 'made an order reducing it from $1,500 down to $750. Both parties took an appeal from that order — one from the refusal of the court to grant a new trial and the' other from the order of the court reducing the judgment.
We are of the opinion that the court erred, and exceeded its powers, in reducing the judgment. No question was raised in the first motion for new trial as to the excessiveness of the damages. The judgment was final, and passed beyond tne •control of the court when the term ended, save as to the right of the party to move for a new trial upon the discovery of new evidence. The power of the court was limited on the hearing of this motion to 'the granting or refusing of a new trial; it had no power to modify the judgment. If i't be conceded that the court had the power (which we do not decide) to require the successful party either to submit to a new trial or enter a remittitur, that was not done. No such alternative was presented to the successful party. The court simply made an order reducing the amount of the judgment, and requiring the successful party to enter a remittitur.
The alleged newly discovered evidence related principally to the - excessiveness of the verdict. On the trial of the case ■the evidence was amply sufficient to sustain 'the amount of dam■'ages- assessed by the jury, basing i't 'entirely 'on the physical injuries and the suffering which resulted therefrom. The newly discovered evidence on this issue tended in some degree to contradict appellee’s contention that he was deprived by the injury of an opportunity to perform services for another under a contract. We are of the opinion, however, that appellants have not shown sufficient reason for having the verdict set aside on account of the discovery of the evidence. They were sufficiently apprised in the complaint that appellee would introduce the evidence which they now seek an opportunity ro rebut, and they should have prepared themselves for the trial.
No error was committed in refusing to grant a new trial on account of the discovery of this evidence, and the ruling of the court does not call for a reversal on that'point. But the order of the court reducing the judgment is reversed and set aside, and the judgment rendered on the verdict for $1,500 is affirmed.
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Battle, J.
We adopt appellant’s abstract of the pleadings in this case, which is as follows:
“Howard Adams, as trustee of the People’s Savings Bank, commenced suit on March 18, 1908, in the Pulaski Chancery-Court against W. D. Bard, Alice R. Bard, -his wife, R. W. Porter, trustee for the Citizens’ Investment & Security Company, as. agents, P. H. Fullinwider and - Smith, seeking to foreclose a mortgage executed by W. D. Bard and Alice R.. Bard, his wife, to Howard Adams, as trustee, on the 21st of April, 1903. The property is described as lot 6 and the south half of lot 5, in block 23, city of Tittle Rock. The amount of the indebtedness was $2,300, due five years after date, with interest at the rate of 8 per cent, per annum. Service was had on the defendants.
“On April 1, 1908, the Mercantile Trust Company, as curator of the estate of William D. Bard, Jr., Mary Frances Bard, and-Nancy Nichol Bard, children of W. D. and Alice R. Bard, filed its intervention and cross complaint in the cause against Howard Adams, as trustee for People’s Savings Bank, W. D. Bard, Alice R. Bard and others, alleging that said William D. Bard, Jr., Mary Frances Bard and Nancy Nichol Bard were minors under the age of fourteen years, and heirs of the body of Alice R. Bard; that said minors were the owners in fee of lot 6 and the south half of lot 5 aforesaid, and that their mother, Alice R. Bard, was at one time the owner of a, life estate therein;that said minors became seized of the fee by virtue of the provisions of the will of Elizabeth A. Crisman, which was executed by her on the 6th of August, 1896, and duly admitted to probate bn the 3d day of December, 1896; that said will, among other things, provided as follows: •
“ ‘First. I give and bequeath to Alice R. Bard my residence in Tittle Rock, lot number 6 and the south half of lot number 5, in block 23, upon the following conditions: Said lots are not to be disposed of by the said Alice during her lifetime ; and if she dies without heirs of her body, then said -property shall go to my sister, Alice B Reid, if living, and, if dead, then to her two daughters, Maude and Alice; and I bequeath to said Alice R. Bard my piano, and if she die without heirs, of her body said piano shall go to the said Maude and Alice Reid.’
“That on the 21st day of April, 1903, Alice R. Bard and her husband, W. D. Bard, executed a deed of trust to Howard' Adams, as trustee, wherein they mortgaged only the life estate of the said Alice R. Bard in said property; that on the 25th day of May, 1904, Alice R. Bard and her husband executed a deed of trust to R. W. Porter, as trustee for the Citizens’ Investment & Security Company for $500, and again on September 6, 1906, they executed a deed of trust to Porter, as trustee, for $318; that at the time of the execution of the deeds of trust Alice R. Bard was in possession of the property, collecting the rents thereon, and was at the time of the filing of the intervention herein in possession of the same; that she suffered the property to forfeit for the nonpayment of taxes for the year 1904, and on the 20th of June, 1907, the property was sold by the clerk of Pulaski County to A. J. Mercer, who now holds a tax deed for the same; that Mercer was an employee of the People’s Savings Bank, and through an agreement between him and the People’s Savings Bank the property was permitted to forfeit for taxes and to be bought in by him in his own name, but that he was in truth acting as agent and in the interest of the People’s Savings Bank; that the bank and Mercer intended thereby to acquire the fee simple to the lots and to hold the title to the same and thereby to defraud William D. Bard, Jr., Mary Frances Bard and Nancy Nichol Bard of their interest in the lots; that by reason of the forfeiture for the taxes of 1904, the sale and the deed of the clerk to Mercer, Alice R. Bard had forfeited her life estate to the property, and that the minors were then entitled to the immediate possession of the property and to redeem from the tax sale.” Prayer “that the intervention be taken as a cross complaint against all of the plaintiffs and defendants; that the will of Elizabeth S. Crisman be construed, and that Alice R. Bard be decreed to have taken thereunder a life estate only, with a remainder in fee to the minor heirs; that the life estate be decreed to be forfeited and terminated by reason of the tax forfeiture and sale, and the minors be given immediate possession of the property and be permitted to redeem from the tax sale; that the deed to Mercer from the clerk of Pulaski County be set aside, and that the deeds of trust from Alice R. Bard and her husband to Howard Adams, as trustee, and to R. W. Porter, as trustee, be declared to be void as liens upon the property, and that they be removed as clouds upon the title,” etc.
The appearance of all parties to this intervention and cross complaint was duly entered or service of summons had in the manner required by law.
Howard Adams, as trustee, demurred to this intervention and cross-b’ill upon two grounds: First, because he alleged that there was a defect of parties defendant made by the intervention, in that the minors had no interest whatever in the controversy. Second, because the intervention did not state facts sufficient to constitute a cause of action in favor of the Mercantile Trust Company as curator of the estate of the minors, in that the minors are shown by the intervention to have no interest whatever in the land in controversy under the will of Elizabeth 'A. Crisman.
Ruling upon the demurrer was reserved by the chancellor until final decision of the cause.
On the 13th of November, 1909, Howard Adams, as trustee, filed an answer to the intervention and cross complaint of the Mercantile Trust Company as curator, by which he denied that the minors were the owners in fee of the property, and that the minors became vested with any estate by virtue of the provisions of the will of Elizabeth A. Crisman; he admitted that Alice R. Bard was in possession of the property at the time of the making of the deeds of trust, and that Mercer held a tax deed to the property. He denied that the property was permitted to forfeit for taxes and to be bought in by Mercer by reason of the alleged agreement between him and the People’s Savings Bank. He denied that by reason of the forfeiture of the property for taxes Alice R. Bard had forfeited her life estate in the property, and that the minors were entitled to the immediate possession thereof. He alleged that Alice R. Bard was not able to pay the taxes on the land, and suffered the same to become delinquent, and that the lands were about to be sold for taxes; that she asked the plaintiff to purchase the land at tax sale for her use and benefit in order to prevent the land from getting into alien hands; that said bank agreed to and did become the purchaser of the lands at tax sale, and directed that the deed be made to Mercer, its agent and representative ; that Mercer holds the tax deed for the use and benefit of the plaintiff and Alice R. Bard; that the purchase *at the tax sale was in fact a payment of the taxes by Alice R. Bard, and hence no forfeiture occurred.
On November 13, 1909, the Mercantile Trúst Company filed an amendment to its intervention and cross complaint, by which it charged that it was provided in the will of Elizabeth A. Crisman that “said lot is not to be sold or disposed of by. the said Alice during her lifetime,” and that Alice R. Bard •had no power to sell or to mortgage the same to Howard Adams, as trustee, or to any one else, and that the mortgagees acquired no right or interest in any estate which Alice R. Bard had in or to the property, and were not entitled to foreclose the mortgage.
On September 29, 1909, Howard Adams, as 'trustee, filed-an amendment to his answer to the intervention and cross-complaint in which he set up that the rents and proceeds from the property were being collected by the Mercantile Trust Company as curator upon the theory that, if the court should hold that the plaintiff had no right, title or interest in the lands, the moneys so received should be paid to the minors; but alleged that said minors had no interest in said fund, and that the rents should be appropriated towards the paying of insurance and taxes upon the place; that the rents in truth belonged to the defendant Alice R. Bard, who executed the note sued upon, and that she had not sufficient security to pay the mortgage. He therefore prayed a garnishment against the. Mercantile' Trust Company for the sum of money now held by it, which he charged was more than $200. He propounded to the Mercantile Trust Company the ‘following interrogatory:
“What sum do you hold in your hands as the proceeds from the collection of the rents and profits from the property in controversy ?”
Elizabeth A. Crisman by a will executed by her on the 6th day of August, 1896, and duly admitted to probate on the 3d day of December, 1896, devised as follows: First. I give- and bequeath to Alice R. -Bard my residence in Little Rock,lot number 6 and the south half of lot number 5, in. block 23, upon the following conditions: Said lots are not to be disposed, of by the said Alice.during her lifetime; and if she dies without, heirs of her body, then said • property shall go to -, my sister,; Alice B.’ Reid, if living, and, if dead, then to her two daughters, Maude and Alice; and I bequeath to Alice R. Bard my piano, and, if she die without heirs of her body, said piano shall go to the said Maude and Alice Reid.”
The land was forfeited for the nonpayment of the taxes of 1904, and was thereafter conveyed to A. J. Mercer; and he continuously paid the taxes on the property since then. We think the preponderance of the evidence shows that he purchased the property and paid the taxes on it for Mrs. Bard.
“On November 13, 1909, the court below heard the case and entered a decree overruling the demurrer of the plaintiffs to the intervention and cross-complaint, and finding that Alice R. Bard had a life estate in the lands described, with the fee in her children and such children as might thereafter be born to her; also holding that the tax deed acquired by A. J. Mercer was not in conflict with the title of Alice R. Bard or her minor children, but that the acquisition of the tax deed by him was in effect a payment of the taxes by Alice R. Bard. Thereupon the court further decreed that the plaintiff have and recover of the defendants W. D. and Alice R. Bard the sum of $3,514.80, and that said sum be a lien upon the property described, prior and paramount to any right, title or interest of W. D. or Alice R. Bard. Ordered a sale of the interest of W. D. and Alice R. Bard in the property for the purpose of paying the debt. From this decree the Mercantile Trust Company, as curator, has appealed.”
The effect of the will in question is a devise to Alice R. Bard for life and an estate tail to the heirs of her body. There was no direct limitation to the heirs of Alice R. Bard, but it is obvious that the testatrix intended that the heirs of her body should take it at her death, for the testatrix devised it to her sister, Alice B. Reid, if living, and if dead, then to her two daughters, Maude and Alice, in case she has no such heirs, and only in that contingency. The heirs of the body of Alice R. Bard would take under the statute de donis conditionalibus an estate tail by construction. Hayward v. Howe, 12 Gray 49; Allen v. Trustees, 102 Mass, 262; 1 Washburn on Real Property (6 ed.), § 192; Tiedeman on Real Property (3 ed.), § § 39, 41, and cases cited.
Appellees contend that the lots in controversy were devised to Alice R. Bard in fee simple, and that any limitation in the will of that estate was void, and cite Bernstein v. Bramble, 81 Ark. 480, to support this contention. Such construction would make it necessary to strike out more than one-half of the sentence 'by which the devise was made, that is to say, the words: “Upon the following conditions: Said lots are not to be disposed of by the said Alice during her lifetime; and if she dies without heirs of her body, then said property shall go to my sister, Alice B. Reid, if living, and, if dead, then to her two daughters, Maude and Alice,” and leave the idea intended to be conveyed • unexpressed. The whole sentence expresses one consistent thought, and every part of it is necessary to do so, and must be so construed, and, construed in this manner, a life estate, and no other, was devised to Alice R. Bard, Hayward v. Howe, 12 Gray 49. Bernstein v. Bramble, supra, does not support the contention of appellees.
If the estate devised to Alice R. Bard be an estate upon condition, no one except the heirs of' the testatrix can take advantage of the condition, it being subsequent. 2 Washburn on Real Property (6 ed.), § 954; 4 Kent’s Commentaries (12 ed.), § 122. And they have not done so.
Under the statutes of this State the lots in question vested in Alice R. Bard for life and in her children, living at her death, in remainder in fee simple. Kirby’s Digest, § 735.
But appellees say the statute cited does not embrace wills; for section 738 of the same digest says: “This act shall not be construed so as to embrace last will and testaments.”
Sections 735, 738 and 739 of Kirby’s Digest were taken from the Revised Statutes, and are sections 5, 8 and 9 of chapter 31 of those statutes. Sections 5 of chapter 31 and 735 of Kirby’s Digest provide: “In cases when by common law any person may hereafter become seized in fee tail of any lands or tenements, by virtue of any devise, gift, grant or other conveyance, such person, instead of being or becoming seized thereof in fee tail, shall be adjudged to be and become seized thereof for' his natural life only, and the remainder shall pass in- fee simple absolutely to the person to whom the estate tail would first pass according to the course of the common law by virtue of such devise, gift, grant or conveyance.”
Sections 8 of chapter 31 and 738 of Kirby’s Digest provide: “This act shall not be construed so as to embrace last will arid testaments.”
Sections 9 of chapter 31 and 739 of Kirby’s Digest provide: “Every interest in real estate, granted or devised to two or more persons (other than executors and trustees as such) shall be in tenancy in common, unless expressly declared in such grant or devise to be a joint tenancy.”
In two of these sections 5 and 735, and 9 and 739, wills and testaments are expressly embraced by the use of the word “devise.” Do 9 and 739 mean to say they shall not be included in those sections? They do not. The language of it is, this act (chapter 31 of Revised Statutes) “shall not ,be construed so as to embrace last wills and testaments.” “Shall not be construed.” Dr. Eieber, in his work on Hermeneutics, says: “Con-, struction is the drawing of conclusions respecting subjects that lie beyond the direct expression of the text — conclusions which are in the spirit, though not within the letter, of the text.” Lieber’s Hermeneutics (Hammond’s ed.), 44.
Black on Interpretation of Daws says: “Construction, as applied to written law, is the art or process of discovering and expounding the meaning and intention of the authors of the law with respect to its application to a given case, when that intention is rendered doubtful either by reason of apparently conflicting provisions or directions, or ’by reason of the fact that the given case is not explicitly provided for in the law.” (Page 1, § 2). See also Terre Haute & Logansport Rd. Co. v. Erdel, 158 Ind. 344, 347. Many other authorities to the same effect might be added, but need not be.
Section 8 of the Revised Statutes (738 of Kirby’s Digest) means that chapter 31 of Revised Statutes shall not be interpreted to include last wills and testaments in any section where they are not mentioned.
Appellants contend that Mrs. Bard’s life estate was forfeited by the sale of the lots in controversy for taxes,' under section 7132 of Kirby’s Digest, which provides:
“If any person who shall be seized of lands for life, or in right of his wife, shall neglect to pay the taxes thereon so long that such lands shall be sold for the payment of the taxes, and shall not, within one year after such sale, redeem the same according to law, such person shall forfeit to the person or persons next entitled to such land in remainder or reversion all the estate which he or she, so neglecting as aforesaid, may have in said lands, and the remainderman or reversioner may redeem the lands in the same manner that other lands may be redeemed after being sold for taxes; and, moreover, the person so neglecting as aforesaid shall be liable in an action to the next entitled to the estate for all damages such person may have sustained by such neglect.”
The preponderance .of the evidence shows that Mercer purchased the lots for Mrs. Bard. That was a payment of the taxes for which they were sold; and no forfeiture thereby accrued. Swan v. Rainey, 59 Ark. 364.
Decree affirmed.
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Hart, J.
A. L. Bradshaw was indicted by the grand jury of Union County for the crime of murder in the first degree. He filed a petition for a change of venue, 'which was granted, and the cause was sent to the circuit court of Columbia County for trial. He was there tried and convicted of murder in the second degree, his punishment being fixed by the jury at a term of five years in the State penitentiary. From the judgment rendered Bradshaw has duly prosecuted an appeal to this court.
On the 5th day of November, 1907, A. I. Watson married Victoria Bradshaw, the daughter of appellant, in Union County, Arkansas, and they lived together until she was killed about the 1st day of February, 1908. Prior to their marriage appellant said that if his daughter married Watson he would kill her. The shooting occurred on Saturday afternoon, between dusk and dark, and the deceased lived until the following Tuesday morning about 10 o’clock. The deceased, her husband and his brother, Jim Watson, were in a wagon going home. When in about 300 yards of home, appellant ran out from the side of the road, and said, “Stop!” They did not stop, and appellant said, “I told you I was going to kill you, and now I am going to do it.” He then commenced to shoot with a 32 Winchester rifle. One of the shots took effect in his daughter’s left shoulder. She was carried home and lived until the following Tuesday as above stated. The appellant sought to excuse the killing on the ground of insanity, and evidence was introduced to establish this defense.
The court gave all the instructions asked by appellant on this issue, and no ground of reversal is urged on that account. The appellant does claim, however, that the court erred in giving the following instruction:
“The court tells the jury that the defendant can not avoid responsibility for killing the deceased oh the ground that it was done under the influence of such passion as temporarily dethroned his reason or for the time controlled his will.”
His counsel insist that the instruction was misleading, in the absence of a proper instruction defining manslaughter. No instruction on manslaughter was asked by the defendant. Moreover, there is no evidence in the record that would reduce the offense to manslaughter. If appellant was not insane, then under the undisputed evidence he was guilty of murder. In such a case it is not error to refuse to instruct as to the offense of manslaughter. Dow v. State, 77 Ark. 464; Kinslow v. State, 85 Ark. 514, and cases cited.
The .instruction, when considered in connection with the other instructions given by the court, was proper as distinguishing passion from insanity. Williams v. State, 50 Ark. 518.
Counsel for appellant also insist that the judgment should be reversed “because the court erred in permitting Will Flourney to testify as to the condition of the deceased, Victoria Watson, when he swore her and wrote down her dying declaration.” Flourney testified that, on the Monday afternoon following the shooting, he reduced to writing the statement of deceased as to the killing, and that she did not think she could get well. The statement itself was not introduced in evidence, and the witness did not testify as to what was contained in it. Hence under no view of the matter could any prejudice have resulted to the rights of appellant. The undisputed evidence shows that appellant shot and killed the deceased. His only defense was that he was insane when he committed the act. The case was sub mitted to the jury under proper instructions, and the evidence clearly warranted the verdict.
The judgment will be affirmed.
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Frauenthal, J.
This was an action instituted by J. F. Mackey, the plaintiff below, to recover for the damage which he alleged was done to his personal and real property by water which it is claimed was wrongfully and negligently diverted from and obstructed in its natural flow and cast upon plaintiff’s property. The plaintiff was the owner of two lots in the city of Jonesboro upon which were located a storehouse and his dwelling house. The lots were situated on the south side of the defendant’s railroad, and about 75 feet from its roadbed. At this place the natural flow of the water was in a southerly direction and across the defendant’s road. Prior to the year 1907 the defendant had constructed and maintained two openings or culverts through its roadbed; and the testimony on the part of the plaintiff tended to prove that these two openings allowed the water that was accustomed to fall upon and drain over the land at this place to pass through the roadbed, and successfully carried it off. One of these openings or culverts was located in front of plaintiff’s property, and the other opening was located about 150 yards east thereof. About 1907 the defendant constructed a switch along the side of its main track at this place, and in doing so built a dump which widened the original roadbed. In building this dump it closed the opening or culvert in the roadbed to the east of plaintiff’s property, and from that point it dug a ditch along the south side of its roadbed to the opening or culvert which was situated in front of plaintiff’s property, but it did not increase the size of this opening. It thus diverted the water which prior to that time had been used and accustomed to flow east of the plaintiff’s property, and caused it to drain to the opening in front of his property. The testimony on the part of the plaintiff tended to prove that this opening or drain was not sufficient to carry off the water that ordinarily fell upon and drained over the land at this place during ordinary rains; that the natural flow of the water was thereby impeded during ordinary rains, and was cast back upon the land of the plaintiff, and greatly damaged it and materially and substantially lessened the use and enjoyment of his property for a number of months during each year from that date up to the time of the institution of this suit. In February, 1907, a great and unprecedented rain fell, which flooded the portion of the city of Jonesboro in which plaintiff’s property was situated. The testimony tended to prove that waters from these rains were greatly impeded and obstructed by the insufficiency of the opening in defendant’s roadbed, and that they were cast back upon the plaintiff’s property. From this cause the waters rose to a considerable height in the dwelling house and store. It injured materially the use and enjoyment of the property, and it destroyed a part of and damaged a considerable portion of a stock of groceries and other goods which plaintiff carried in his store.
Upon a trial of the case the jury returned a verdict in favor of plaintiff, assessing the damage to the rental of usable value of realty at $200, and to the personal property at $150; and from the judgment entered upon the verdict the defendant has appealed to this court.
It is the right of each proprietor along a natural drain or watercourse to insist that the water shall continue to flow as it has been used and accustomed to do; and when its natural course has been obstructed or changed so as to injure him, it is his right to recover recompense for the damages he has thereby sustained. It is the duty of a railroad company to so construct and maintain its roadbed as to cause no injury that could have been avoided by proper care and skill; and where such roadbed will obstruct and impede the natural flow and drainage of the water, it becomes its duty to make sufficient openings for the passage of the water.
In the case of Railway Company v. Cook, 57 Ark. 387, its duty and liability is thus expressed': “It is the duty of a railroad company to provide proper and sufficient openings or culverts for the escape of the water of all streams crossing its roadbed, so as not to flood the land of upper riparian owners, whether at ordinary stage of water or during floods which could reasonably have been forseen and guarded against; and if it fails to provide such openings, it is liable to any person damaged thereby.” If the railroad company builds across or alters the natural drainage of land, it must make suitable culverts, bridges or other provisions for effectually carrying off the water. The law exacts the exercise of this care and diligence on the part of the railroad company, not only for the escape of the ordinary flow of such water, but where it could reasonably have been foreseen to make suitable provision to carry Off the water of extraordinary freshets. For a failure to exercise that care and diligence the railroad company will be liable to those who are damaged thereby. St. Louis, I. M. & S. Ry. Co. v. Anderson, 62 Ark. 360; Little Rock & Ft. S. Ry. Co. v. Chapman, 39 Ark. 463; Bentonville Rd. Co. v. Baker. 45 Ark. 252; Angell on Watercourses (7 ed.), 465b; Pierce on Railroads, p. 203.
But-it is urged that the rains which occurred in February, 1907, were so unprecedented, and the flood caused thereby so extraordinary, that it was in legal contemplation the act of God for which the defendant should not be held liable. The defendant can not be held liable for damage caused by the act of God. If the rains and flood in February were of such an overwhelming and destructive character as by their force, and independently of any other real efficient cause, to produce the injury, then there would be no liability against the defend ant. But if the injury was produced by the combined effect of the act of God and the concurring negligence of defendant, then it would be liable therefor. Where two concurring causes produce an injury which would not have resulted in the absence of either, the party responsible for 'either cause is liable for the consequent injury, and this rule applies where one of the causes is the act of God. This court, in City Electric St. Ry. Co. v. Conery, 61 Ark. 381, announced this rule, as stated in the syllabus: “The concurring negligence of two parties make both liable to a third party injured thereby if the injury would not have occurred from the negligence of one of them only.” Wharton on Neg. (2 ed.), 144: 1 Shear. & Redf. Neg. (4 ed.), § 39; St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 112; Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581; Chicago, R. I. & P. Ry. Co. v. Miles, 92 Ark. 573.
The act of God which excuses must be not only.the proximate cause but the sole cause. And where the act of God is the. cause of the injury, but the act of the party so mingles with it as to be also an efficient and co-operating cause, the party will be still responsible. In 1 Shear. & Redf. Neg. (4 ed.), § 39, the rule is thus stated: “It is universally agreed that if the damage is caused by the concurring force of the defendant’s negligence and some other cause, for which he is not responsible, including the act of God, * * * the defendant is nevertheless responsible if his negligence is one of the proximate causes of the damage.” Vyse v. Chicago, B. & Q. Ry. Co., 101 N. W. 736.
The lower court gave a number of instructions, some of which counsel for defendant claims were erroneous. We have examined all the instructions, and we do not think that the court committed any prejudicial error in its ruling on any of them. They, in effect, are in conformity with the above principles, and we do not think that it would serve any useful purpose to set them out or to discuss them in detail. We are also of the opinion that there was sufficient evidence to warrant the verdict of the jury. The testimony proved that the defendant, by closing the' eastern culvert through its roadbed, had diverted waters to the opening in the roadbed in front of plaintiff’s property. This latter opening was insufficient to allow the passage of the waters that ordinarily were accus 'tomed to drain and flow across the roadbed at this place; and the negligence of the defendant,, by not making a sufficiently large opening at this place and at other reasonably necessary ‘places through its roadbed was an active cause that obstructed and impeded the flow of the water in times of extraordinary freshets só as to-cast it back and flood the property of plaintiff. We also think that the jury were warranted in finding that the defendant could reasonably have foreseen the coming of these extraordinary rains, and could reasonably have so constructed its roadbed as to permit the waters to pass without the damage which was incurred by plaintiff.
It appears to be conceded by both parties that the manner •in which the defendant has obstructed and maintained culverts or openings through the roadbed is only temporary, and can and will be remedied, and that the injury is not therefore' permanent. The measure of damages in such case was the diminished rental or usable value of the land, and the market value of the personal property destroyed and the diminished value of that which was damaged. Railway Company v. Cook, 57 Ark. 387; Czarnecki v. Bolen-Darnell Coal Co., 91 Ark. 58; Junction City Lbr. Co. v. Sharp, 92 Ark. 538.
The court properly instructed the jury as to the measure of damages, and we think that there is some testimony to sustain' the jury in the amount of the damages which they found. The verdict of the jury should not therefore be disturbed.
The judgment is affirmed.
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McCulloch, C. J.
Appellant was the owner of a tract of land in Mississippi County, Arkansas, containing 560 acres, and entered into the following contract for the sale and conveyance thereof to appellee:
“This agreement, made and entered into this 1st day of November, 1906, by and between the Three States Lumber Company, a corporation, of the State of .Wisconsin, party of the first part, and H. E. Bowen, of the county of Mississippi, and State of Arkansas, party of the second part, witnesseth:
“That, upon the performance of the covenants and agreements of the party of the second part and the completion of the payments hereinafter set forth, the party of the first part hereby covenants and agrees to sell and convey to the party of the second part the following described real estate, towit: (Here follows description). That, for and in consideration of the covenants and agreements of the party of the first part, the party of the second part hereby covenants, promises and agrees to pay to the party of the first part the sum of twenty-eight hundred ($2,800) dollars, cash in hand, the receipt of which is hereby acknowledged, and the further sum of fifty-six hundred ($5,600) dollars according to the tenor and effect of 'two promissory notes, amount of each note twenty-eight hundred ($2,800) dollars, of even date herewith, given by the party of the second part to the party of the first part, and payable on or before November 1, 1907, and November 1, 1908, respectively, with interest on both of said notes, payable annually at the rate of six per cent, per annum. * * * And the said Three States Lumber Company hereby agrees that it will for ever warrant and defend the' title to said lands against the claims of all persons whomsoever, to the extent of fifteen ($15) dollars per acre; it 'being expressly agreed and understood by the parties hereto that this grantor shall not be 'liable on this agreement for more than said sum of fifteen ($15) dollars per acre for the whole of said tract, or any part thereof, to which the title may fail. * * * That time is of essence of this agreement, and that the covenants and agreements herein contained shall extend to and be binding upon the heirs, executors, administrators and successors and assigns of parties hereto.”
Appellee made the cash payment at the time of the execution of the contract, and took possession of the land. He failed to make the next payment within the stipulated time, but offered, on January 18, 1908, to pay the amount due, and on November 1, 1908, he tendered the amount of the last payment, which became due according to. the contract on that date. His excuse for failing to make the -second payment within the time specified was that at that time there was a financial stringency prevailing throughout the country, and the banks refused to pay money on checks; that he tendered appellant a check for the amount due, which was refused, and that, as soon as the banks began to pay out money, he procured the necessary amount ■of currency, which was on January 18, 1908, and tendered it to appellant. Appellee seeks in this proceeding to compel specific performance of the contract, and tenders the full amount of the unpaid purchase price. The chancery court granted him that relief, and appellant brings the case here for review.
It will be noted from an inspection of the contract that it provides in terms that “time is of essence of this agreement.” It does not expressly provide, in the event of appellee’s failure to pay within the time named, for a forfeiture of his right to have the contract enforced, or for a forfeiture of the amount already paid on the purchase price of the land. “Time may be made of the essence of the contract ‘by the express stipulations of the parties, or it may arise by implication from the very nature of the property or the avowed objects of the seller or the purchaser.’ ” Cheney v. Libby, 134 U. S. 68.
While equity will not ordinarily enforce forfeitures, still, where the payment of the price of the land is by express letter ■of the contract made a condition upon which the sale depends, courts of equity will not refuse to follow the terms of the contract; for to fail to do so would be to make a contract for the parties which they had not themselves made. But, even in cases where the parties have by contract made time of payment to-be of the essence of the contract, the right to insist on a forfeiture by failing to pay within the time may be waived by conduct on the part of him who has the right to insist on a forfeiture. Illustrations of implied waivers of the right to insist on forfeiture may'be found in many decisions of this court: Braddock v. England, 87 Ark. 393; Souter v. Witt, 87 Ark. 593 Turpin v. Beach, 88 Ark. 604; Friar v. Baldridge, 91 Ark. 133.
' The Supreme -Court of the United States, in an opinion by Mr. Justice Harlan, used the following language, which has already been quoted with approval by this court: “The discretion which a court of equity has to grant or refuse specific performance, and which is always exercised with reference to the circumstances of the particular case before it, may, and of necessity -must, often be controlled by the conduct of the party who-bases his refusal to perform the contract upon the failure of the other party to strictly comply with its conditions.” (Cheney v. Libby, supra).
Now, the evidence in this case shows that appellee was not only a man of considerable means and abundantly responsible,, legally, for the -obligation as expressed in this contract, but that he had money in bank ready to use in the payment of the note when it fell due. Without fault of his own, he was unable to-withdraw this money from the bank, and appellant refused to-accept a check and refused to extend the time of payment. As soon as the banks resumed payment, appellee procured the currency and tendered the amount. Appellant refused to accept it, and notified appellee, as it also did about the time of the maturity of the note, that the contract would be treated as rescinded. Nowhere does it appear, however, that appellant has ever offered to return the money ($2,800) which it had received from appellee as the first cash payment on the land. On the contrary, it is clear that appellant intends to retain this money and still insist upon a forfeiture. The contract, to which we h-ave already called attention, .contains no provision for a forfeiture, on appellee’s part, of the money which he paid; nor does it provide, in the event of his failure to pay the purchase price within the time named, for the appropriation of the money so paid to the satisfaction of any other obligation, or to the compensation of appellant for the rental value of or damage to the land agreed to be sold. Appellee could not, in an action at law, have recovered the money which he paid, for in such an action he would be met with the plea that the payment was voluntary; and that he had not complied with his.own contract. But he is not insisting on a return of the money; he is in a court of equity asking for a performance of the contract and offering to perform his part of it. And he insists, and rightly, we think, that appellant, by retaining the money previously paid, has waived its right to insist on a forfeiture.
Mr. Pomeroy, in his work on Specific Performance of Contracts, § 394, says that “wherever time is made essential, either by the nature of the subject-matter and object of the agreement, or by express stipulation, or by a subsequent notice given by one of the parties to the other, the party in whose favor this quality exists — that is, the one who is entitled to' insist upon a punctual performance by the other or else that the agreement be ended — may waive his right and the benefit of any objection which he might raise to a performance after the prescribed time, either expressly or by his conduct; and his conduct will operate as a waiver when it is consistent only with a purpose on his part to regard the contract as still subsisting, and not ended by the other party’s default.”
We are of the opinion that appellant, by failing to return the money previously paid, elected to treat the contract as still subsisting, and this was a waiver of the forfeiture which it had the right to claim by returning the money and declaring the contract to be at an end. This view is based, of course, upon the peculiar language of this contract, in which no forfeiture is expressly provided for, either as to the money paid or the right to carry out the purchase of the land. As the contract only made the payment of the money within the stipulated time a condition precedent, without providing for a forfeiture of the amount already paid on the purchase price, appellant, by keeping the money, treated the contract as still subsisting, and can not insist on a strict performance of the conditions within the specified time. It had the right either to return the money paid and treat the contract as at an end, or to keep the money and insist on payment of the balance. But it could not keep the money paid and at the same time claim a. forfeiture because of appellee’s failure to pay the remainder within the specified time.
Decree is therefore affirmed.
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Wood, J.
Appellant is the owner of the north half of the northeast quarter of section 14, township 20 north, range 8 east, in Clay County, Arkansas. Appellee owns the southeast quarter of the northest quarter of the above section adjoining the lands of appellant on the south. Appellant by this action seeks to enjoin appellee from -constructing a dam or levee on the land of appellee which appellant alleges obstructs -the natural flow of water -that passes off of his land on to the land of appellee, thereby causing the water to overflow appellant’s land and to render same unfit for cultivation.
Appellee, answering the complaint, denied that there was a branch- 'or drain of natural formation on appellant’s land running from north to south on to appellee’s land; alleged that on appellant’s land there were low “swaggy” places and ponds with no definite course; that appellant has -cut a system of -ditches through his land, and on to the land of appellee, in order to drain the low places on th-e land of appellant, thereby deliver ing upon the land of appellee a large stream of water which would never reach appellee’s land by any natural flow thereof. Appellee denied that he had’ obstructed any natural drain from the lands of appellant; alleged that he had cut a ditch of similar dimensions to that cut by appellant, on his land; fhat appellee cut this ditch on his own land further south of the ditch cut by appellant on appellant’s land; that this ditch was cut on the west side of the land of appellee and running south into a large ditch on the public road; that appellant had dammed this ditch on appellee’s land by driving stakes in same, thereby turning the water of said ditch into the ditch cut on the south side of appellant’s land running east; that, if the ditch cut by appellant on his land was permitted to flow south into the ditch cut by appellee, it would carry off all the water, etc., intended to be carried by it. Appellee alleged that the small embankment made • ■by him is at a low swaggy place in the northwest corner of his land, and this low place also extends over into appellant’s land; that the making of this embankment was only for the purpose of protecting appellee from the volume of water turned on him by the ditches that appellant, had made on his own land. Appellee prayed that appellant’s complaint be dismissed for want of equity.
It will be observed that appellee admits that he erected a “small embankment” across a “low swaggy place on the northwest corner of his land.” But he also says that the making of this embankment was “only for the purpose of protecting his land from the volume of water turned on it by the'ditches that appellant had constructed on appellant’s land.”
The testimony of appellant and a plat which is in the record and made a part of his evidence shows that there was “a flat just north of where the water passed from appellant’s land on to the land of appellee, forming a pond covering about an acre and a half. Appellant testified that there were two otitlets from his land into appellee’s land, which united just after passing into appellee’s land, the eastern outlet being four rods wide and the western outlet being thirteen rods wide with a spot of high ground two rods wide between them; that these drains where they enter the land of appellee had well-defined banks that confined the water within them; that appellee had erected a dam or; leveé about two feet high across these two outlets or drains, causing several acres of appellant’s land to overflow. Appellant further testified that he cut a ditch about sixty rods long between his two forties; that this ditch was four feet wide at the top and about two feet deep. It ran due south from its point of beginning on appellant’s land to the dividing line between the land of appellant and appellee, thence east to a point of high land. Appellant testified that the object in 'cutting these ditches, or this ditch, was to prevent the wafer from overflowing into appellee’s land through the eastern outlet, and to bring it to the old ditch that was cut years ago on the west side of the appellee’s land, and that ditch was now nearly filled. In another place in his testimony he says: “The object in cutting this ditch was to concentrate the water of these ponds to the old ditch west of Keller’s land. About twenty rods of this ditch was cut through land that did not overflow except in very high water. That twenty rods was intended to catch the water before it got into these ponds.” Appellant himself also testified: “The drains, as marked down in several places, have well-defined banks; some places they were not.” But he was satisfied “that the drains as marked designate the natural flow of the water.” One witness on behalf of appellant testified: “These drains on the map are just low slashy places, and have no banks. There is part of them in cultivation, and some in thickets. They plow across these drains. Another witness, when asked If “these drains that are marked in purple on this plat have any well-defined banks,” replied: “Well, no; not any banks; just a natural low place in the land, about two hundred feet wide, and wider in some places than in others.”
The circuit judge, in the absence of the chancellor from the county, refused a temporary restraining order to appellant, and the chancellor on the final hearing denied appellant’s prayer for injunction and dismissed his complaint.
The decree was not clearly against the preponderance of the evidence. The question was one of fact as to whether appellee by building the levee across the low place on his own land had unnecessarily injured appellant in endeavoring to protect himself. The testimony warranted a finding that this was surface water. The low place on appellee’s land into which the water came from appellant’s land did not have any well-defined channel or banks. Appellee had the right to protect himself from this surface water as best he could without doing ■ unnecessary damage to the upper proprietor. It was the duty of appellee, if he could have done so at reasonable expense, to have controlled the waters that came upon his land, in their natural flow, from appellant’s land, by means of ditches instead of the embankment, if the former could have been made as effectual as the latter. For by the embankment appellee injured the lands of appellant while protecting his own. However, under the evidence in^the record, the court was justified in finding that the embankment resorted to by appellee was the only practical method of protecting his land from the water that came upon it from the appellant’s land. The testimony tends to show that appellant by digging ditches on his own land to control the surface water had thereby thrown same in greater volume on to appellee’s land, and it also tends to prove that appellant had driven stakes in the ditch running south on the western part of appellee’s land,' and that this ditch would not carry off the water in the volume that it came upon appellee’s land after the digging of the ditches by appellant. The chancellor evidently found that appellant was at fault in digging ditches that turned the water on to appellee’s land in greater volume than it would have gone had it been permitted to run in its natural course along and into the swale that existed where the waters passed from appellant’s land on to the land of appellee. Appellant, while protecting himself from the surface water that accumulated on his land, had no right to concentrate and throw it by ditches with greater force and volume than it otherwise would have gone upon appellee’s land, so as to unnecessarily damage him. See St. Louis, I. M. & S. Ry. Co. v. Magness, 93 Ark. 46. Appellee had the right to erect an embankment to protect his land against such increased flow upon it. In the draining of one’s land of surface water it is not permissible to direct the flow of the water upon the adjoining land, or to increase the volume of the flow by the construction of a drain or ditch. Tiedeman on Read Property, § 615, p. 587. The doctrine of Baker v. Allen, 66 Ark. 275, when applied to the facts of this case, shows that the decree was correct.
Affirm.
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JIM HANNAH, Chief Justice
_jjA Pulaski County jury convicted appellant, Kiywuan Perry, of capital murder and aggravated robbery. The circuit court sentenced Perry to consecutive terms of life imprisonment without parole for the capital-murder conviction and forty years for the aggravated-robbery conviction. Perry contends on appeal that the circuit court erred in denying his motion for directed verdict and abused its discretion in refusing to submit to the jury his proffered verdict forms on accomplice liability. Because this is a criminal appeal in which a sentence of life imprisonment has been imposed, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1—2(a)(2) (2014). We affirm.
Perry’s convictions stem from a robbery and murder that occurred at an El Chico restaurant in Little Rock. According to the testimony and evidence presented at trial, on the |2evening of April 15, 2012, Perry and his brother, Zeckeya Perry, entered the restaurant carrying guns and wearing hoodies, sunglasses, and bandanas. They forced all of the restaurant’s customers and employees, except for waiter, Jesus Herrera, into a walk-in cooler. While inside the cooler, the customers and employees heard gunshots, and upon exiting the cooler, they found Herrera lying on the floor, fatally shot. An undetermined amount of money was stolen from the restaurant manager’s office during the robbery.
On appeal, Perry first contends that the State presented insufficient evidence of his guilt of both offenses at trial. Specifically, he claims that the testimony of four prosecution witnesses — Quantez Dobbins, Kenya Smith, Adrian Brooks, and Tyrone Bar-bee — was “so clearly unbelievable” that their testimony should be disregarded as a matter of law. Next, Perry claims that the evidence at trial failed to corroborate the testimony of accomplices, Dobbins, Smith, and Brooks.
The State contends that this court cannot address Perry’s claims because they are not preserved for our review. We agree. A challenge to the sufficiency of the evidence is preserved by making a specific motion for directed ver-diet at the close of the State’s evidence and at the close of all of the evidence. E.g., Maxwell v. State, 373 Ark. 553, 558, 285 S.W.3d 195, 199 (2008). Rule 33.1 of the Arkansas Rules of Criminal Procedure states in relevant | spart:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsection[ ] (a) ... will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict ... A motion for directed verdict ... 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 of the evidence of a previous motion for directed verdict ... 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 ... 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(a), (c) (2014). “The rationale behind this rule is that ‘when specific grounds are stated and the absent proof is pinpointed, the circuit court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.’ ” Maxwell, 373 Ark. at 559, 285 S.W.3d at 200 (quoting Pinell v. State, 364 Ark. 353, 357, 219 S.W.3d 168, 171 (2005)).
A general motion for directed verdict that merely asserts that the State has failed to prove its case is inadequate to preserve a sufficiency challenge for appeal. E.g., Rounsaville v. State, 2009 Ark. 479, at 8, 346 S.W.3d 289, 294 (holding that defendant failed to make a specific motion regarding the sufficiency of the evidence to prove the charges of kidnapping and ter-roristic threatening when he argued at trial that he did not “believe [the State] made a prima facie case”); Eastin v. State, 370 Ark. 10, 15, 257 S.W.3d 58, 62-63 (2007) (concluding that defendant’s sufficiency argument was not preserved for appeal when he moved for directed verdict “based on the fact that the State has not made a prima facie case” and that he should be acquitted “based on lack of proof’); Travis v. State, 328 Ark. 442, 446-48, 944 S.W.2d 96, 97-98 (1997) (holding that defendant’s argument in directed-verdict motion that the State had not presented evidence to “meet their burden on both counts of the residential burglary and the rape charge” failed to specifically identify the proof of the element of the crime that was alleged to have been missing).
At trial, Perry made a general motion for directed verdict, but he did not raise the specific issues that he now raises on appeal. Rather, at the close of the State’s case, which was also the close of evidence, defense counsel made the following motion: “Your Honor, we’d ask for a directed verdict of acquittal. That the government hasn’t presented enough evidence to take the case to the jury. It’s insufficient for that.”
Perry’s general motion, which failed to specify any deficiencies in the State’s proof, was inadequate to preserve for appellate review the specific challenges to the sufficiency of the evidence he now raises on appeal. E.g., Bienemy v. State, 374 Ark. 232, 236-37, 287 S.W.3d 551, 555 (2008). In addition, we note that, although Perry received a sentence of life imprisonment for his capital-murder conviction, and that Arkansas Supreme Court Rule 4—3(i) (2014) requires us to review the record for error in all life and death cases, this review presupposes that a proper objection was made at trial. See Webb v. State, 327 Ark. 51, 60, 938 S.W.2d 806, 811 (1997). When an appellant fails to make a specific motion for directed verdict indicating the particular deficiencies in the State’s proof, it is as if he failed to object |fiat all, and that failure below precludes our review of the sufficiency of the evidence on appeal. Webb, 327 Ark. at 60, 938 S.W.2d at 812.
Perry next contends that the circuit court abused its discretion in refusing to submit to the jury his proffered nonmo-del-verdict forms on accomplice liability. At trial, Perry requested that the circuit court instruct the jury with the disputed-accomplice-liability instruction for witnesses Smith and Brooks. The circuit court gave the instruction for Smith, but it refused to give the instruction for Brooks, concluding that there was not evidence from which the jury could conclude that Brooks was an accomplice. Thereafter, Perry requested that the circuit court submit to the jury an interrogatory verdict form on which it would indicate whether it found Smith to be an accomplice. The circuit court denied Perry’s request. Perry then proffered interrogatory-verdict forms as to both Smith and Brooks.
On appeal, Perry contends that the circuit court committed reversible error when it refused to submit to the jury a verdict form on which it would have indicated whether it found that Smith was an accomplice. At trial, the circuit court gave the disputed-accomplice-liability instruction, Arkansas Model Jury Instruction — Criminal 2d 403, for Smith:
A person cannot be convicted of a felony upon the uncorroborated testimony of an accomplice.
|(An accomplice is one who directly participates in the commission of an offense or who, with the purpose of promoting or facilitating the commission of an offense:
Solicits, advises, encourages or coerces another person to commit it; or aids, agrees to aid or attempts to aid another person in planning or committing it.
It is contended that the witness, Kenya Smith, was an accomplice. If you find that she was, then Kiywuan Perry cannot be convicted upon testimony of that witness, unless that testimony is corroborated by other evidence tending to connect Kiywuan Perry with the commission of the offenses.
Evidence is not sufficient to corroborate the testimony of an accomplice if it merely shows that the offenses were committed and the circumstances of the commission. The sufficiency of the corroborating evidence is for you to determine.
Perry claims that, because Smith’s status as an accomplice was in dispute, he was entitled to have the following verdict form submitted to the jury:
Verdict Form
Interrogatory Verdict No. 1
We the jury find that:
_Kenya Smith was an accomplice to the crimes of capital murder and aggravated robbery.
_Kenya Smith was not an accomplice to the crimes of capital murder and aggravated robbery.
FOREPERSON
In assessing whether a circuit court should have submitted a proffered nonmodel-verdict form to the jury, this court uses the same standard that it applies when considering whether a proffered nonmodel jury instruction is warranted. See Love v. State, 281 Ark. 379, 383, 664 S.W.2d 457, 460 (1984). This court has held that nonmodel jury instructions are to |7be given only when the circuit court finds that the model instructions do not accurately state the law or do not contain a necessary instruction on the subject. E.g., Bond v. State, 374 Ark. 332, 340, 288 S.W.3d 206, 212 (2008). Further, just because a proffered jury instruction may be a correct statement of the law does not mean that a circuit court must give the proffered instruction to the jury. Id., 288 S.W.3d at 212. This court will not reverse a circuit court’s decision to give or reject an instruction unless the court abused its discretion. E.g., Clark v. State, 374 Ark. 292, 305, 287 S.W.3d 567, 577 (2008).
Here, Perry does not claim that the jury instructions did not accurately state the law or that the jury lacked a necessary instruction. Indeed, at Perry’s request, the circuit court gave the jury the model disputed-accomplice-liability instruction. Perry’s contention is that the proffered nonmodel interrogatory-verdict form should have been given because the jury’s completion of the form would have indicated whether Smith’s testimony required corroboration.' According to Perry, the interrogatory verdict form would assist this court in determining whether there is sufficient evidence to support the convictions in this case.
Although Perry conceded at trial that he had found no authority to support his claim that he was entitled to the non-model-verdict form he requested, he contends in his brief on appeal that the circuit court “erroneously” denied his request for the verdict form ' and that “the circuit court’s discretion did not extend to denying this request by the defense.” We do not address this point because Perry fails to support it with cogent argument or citation to relevant authority. It is well settled that assignments of error unsupported by convincing argument or apposite authority will not be considered on appeal. See, e.g., Hale v. State, 343 Ark. 62, 86, 31 S.W.3d 850, 865 (2000).
4-3(i)
Pursuant to Arkansas Supreme Court Rule 4—3(i), the record has been reviewed for all objections, motions, and requests that were decided adversely to Perry, and no prejudicial error was found.
Affirmed.
Baker and Hart, JJ., concur.
. Zeckeya was tried and convicted of capital murder and aggravated robbery, for which he was sentenced to terms of life imprisonment without parole and thirty-five years' imprisonment, respectively. This court affirmed Zeckeya’s convictions and sentences. See Perry v. State, 2014 Ark. 406, 2014 WL 4928868.
. The circuit court instructed the jury that Dobbins was an accomplice as a matter of law and that Smith’s status as an accomplice was in dispute. The circuit court declined to give an accomplice-liability instruction for Brooks.
. Perry does not challenge the circuit court’s ruling that there was not evidence from which the jury could conclude that Brooks was an accomplice; therefore, he has abandoned his argument that Brooks required a disputed-accomplice-liability instruction. For that reason, we do not consider Perry’s argument that the circuit court should have submitted to the jury an accomplice-liability verdict form for Brooks.
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LARRY D. VAUGHT, Judge
| Carlin Leach appeals from the sentencing order entered on March 11, 2014, revoking his probation. Pursuant to Arkansas Supreme Court Rule 4—3(k) and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), his attorney has filed a no-merit brief and a motion to withdraw as counsel, asserting that there is no issue of arguable merit to present on appeal. We affirm the revocation of Leach’s probation and grant counsel’s motion to withdraw.
Leach entered a plea of guilty to theft of property, a Class C felony, on October 31, 2011. He was sentenced to eighteen months’ probation and ordered to pay fees and costs. As conditions of his probation, Leach was ordered to live a law-abiding life, be of good behavior, and not commit any violations of law. He was also required to provide the sheriff and his-probation officer with his current address and employment information. On February 15, 2013, the State filed a petition to revoke probation, alleging that Leach had (1) failed to pay fines, costs, and fees; (2) failed to report to his probation officer as directed; (3) failed to pay probation |?fees; (4) failed to notify his probation officer of his current address and employment; (5) possessed and used marijuana and amphetamines; and (6) been convicted of domestic battery, third degree, in Craighead County on December 22, §012.
At a revocation hearing held on March 11, 2014, Leach’s probation officer, Mary Marshall, testified that he owed $230 in probation-supervision fees, although she believed that he had appeared at the pro bation office the day before and attempted to pay them. She did not know if he had successfully paid the fees, but testified that he had generally been delinquent in paying his fees prior to that date. She had previously converted his delinquent fees to community-service hours, which he did not complete. She also testified that he had admitted to marijuana use and had tested positive for marijuana and amphetamines. She testified that he missed his drug-counseling sessions so many times that he was dismissed from those groups. She also testified that she had tried to contact him by phone and by letter, but he did not respond to the phone call and the letter was returned. She reported that he had stopped reporting to her. After he was arrested on the probation-revocation warrant, she again gave him a referral to a drug-and-alcohol assistance group, and he again failed to attend those sessions.
At the end of the State’s case, Leach’s attorney moved for directed verdict. The court granted the motion as to count one, failure to pay fees and costs, because it was unclear if he had successfully paid in full the day before the hearing. The court also dismissed count six, the conviction for domestic battery, and count four, failure to notify the sheriffs office and his probation officer of his current address.
| c.Leach then testified that he had paid his supervision fees in full the previous day. He admitted to using illegal drugs while on probation. He testified that he had recently had a friend and an aunt pass away and that his father was on dialysis, so he used the drugs to deal with the stress. He stated that he knew it was wrong and was now clean. He testified that he had notified his probation officer of his current address. He admitted to not attending drug classes and not reporting to his probation officer.
The court found that Leach had inexcusably failed to promptly notify his probation officer of any change of address, report to his probation officer as directed, report to drug-counseling sessions as directed, and refrain from possessing or using controlled substances. The court also found that he had not paid his fines and costs as directed, but did not revoke on that ground since they may have been paid before the hearing. The court noted that it appeared that Leach had not complied with conditions regarding his employment, but stated that it was not revoking on that ground since that condition was not specifically pled. The court revoked Leach’s probation on March 11, 2014, and Leach was sentenced to twenty-four months’ incarceration in the Arkansas Department of Correction.
As allowed by Arkansas Supreme Court Rule 4-3(k) and Anders, Leach’s counsel has filed a motion to withdraw, stating that there is no merit to an appeal. Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. The motion is accompanied by an abstract and addendum of the proceedings below, including all objections and motions decided adversely to Leach, and a brief in which counsel explains why there is nothing in the record that would support an appeal. The clerk of the court served Leach |4with a copy of counsel’s brief and notified him of his right to file pro se points on appeal within thirty days. Leach filed no pro se points.
An attorney’s motion to withdraw from appellate representation based upon a meritless appeal must be accompanied by a brief that contains a list of all rulings adverse to his client that were made on any objection, motion, or request made by either party. Ark. Sup.Ct. R. 4—3(k)(l). The brief must also contain an explanation of why each adverse ruling is not a meritorious ground for reversal. Id. We are bound to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous. Campbell v. State, 74 Ark. App. 277, 279, 47 S.W.3d 915, 919 (2001) (citing Anders, 386 U.S. at 744, 87 S.Ct. 1396).
From our review of the record and the brief presented to us, we find compliance with Rule 4 — 3(k)(l) and agree that there is no merit to an appeal. The only adverse ruling was the court’s decision to revoke Leach’s probation. Leach testified at the hearing and admitted committing multiple violations of the conditions of his probation. Probation may be revoked upon a finding by a preponder ance of the evidence that the defendant has inexcusably failed to comply with a condition of probation. Williams v. State, 2013 Ark. App. 422, at 3, 2013 WL 3254365. Although the petition and amended petition for revocation of Leach’s probation alleged multiple violations, the State must only prove one. Richardson v. State, 85 Ark. App. 347, 350, 157 S.W.3d 536, 538 (2004). A trial court’s decision to revoke probation will not be overturned on appeal unless it is clearly against the preponderance of the evidence. Williams, 2013 Ark. App. 422, at 3. In this case, the trial court’s revocation of Leach’s probation was not clearly erroneous or clearly against |sthe preponderance of the evidence. See Bishop v. State, 2014 Ark. App. 41, at 4, 2014 WL 145272. Accordingly, we affirm the order of revocation and grant defense counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
Harrison and Brown, JJ., agree.
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LARRY D. VAUGHT, Judge
| ¶ Jennifer Sehiffer appeals from the sentencing order entered on November 15, 2013, revoking her probation. Pursuant to Arkansas Supreme Court Rule ,4-3(k) and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), her attorney has filed a no-merit brief and a motion to withdraw as counsel, asserting that there is no issue of arguable merit to present on appeal. We affirm the revocation of Schiffer’s probation and grant counsel’s motion to withdraw.
Sehiffer entered a plea of guilty to theft of property, a Class C felony, on June 6, 2011. She was sentenced to eighteen months’ probation and ordered to pay fees and costs. As' conditions of her probation, Sehiffer was ordered to live a law-abiding life, be of good behavior, and not commit any violations of law. On October 25, 2012, the State filed a petition to revoke Schiffer’s probation, alleging that she had violated the conditions of her probation due to (1) failure to pay fines, costs, and fees as directed; (2) failure to report to her probation officer as directed; (3) failure to pay probation fees; (4) failure to notify the sheriff and her probation ^officer of her current address and employment; (5) forgery; (6) association with others violating laws of the State of Mississippi; and (7) possession and use of illegal drugs. On June 24, 2013, the State filed an amended petition, adding an eighth allegation that Sehiffer had been convicted of burglary and shoplifting in Desoto County, Mississippi, while on probation. After a hearing held on November 15, 2013, the Circuit Court of Crittenden County found that Schiffer had violated the conditions of her probation by being convicted of burglary and shoplifting in Mississippi. She was sentenced to two years in a regional correctional facility and ordered to pay $2250 in restitution.
As allowed by Arkansas Supreme Court Rule 4-3(k) and Anders, Schiffer’s counsel has filed a motion to withdraw, stating that there is no merit to an appeal. Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. The motion is accompanied by an abstract and addendum of the proceedings below, including all objections and motions decided adversely to Schiffer, and a brief in which counsel explains why there is nothing in the record that would support an appeal. The clerk of the court served Schiffer with a copy of counsel’s brief and notified her of her right to file pro se points on appeal within thirty days. Schif-fer filed no pro se points.
An attorney’s motion to withdraw from appellate representation based upon a meritless appeal must be accompanied by a brief that contains a list of all rulings adverse to his client that were made on any objection, motion, or request made by either party. Ark. Sup. Ct. R. 4-3(k)(l). The brief must also contain an explanation of why each adverse ruling is not a meritorious ground for reversal. Id. We are bound to perform a full examination of the proceedings as a |swhole to decide if an appeal would be wholly frivolous. Campbell v. State, 74 Ark. App. 277, 279, 47 S.W.3d 915, 919 (2001) (citing Anders, 386 U.S. at 744, 87 S.Ct. 1396).
From our review of the record and the brief presented to us, we find compliance with Rule 4 — 3(k)(Z) and agree that there is no merit to an appeal. At the hearing, the court admitted evidence of Schiffer’s Mississippi convictions without objection. It is undisputed that she violated the law while on probation. Probation may be revoked upon a finding by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of probation. Williams v. State, 2013 Ark. App. 422, at 3, 2013 WL 3254365. Although the petition and amended petition for revocation of Schiffer’s probation alleged multiple violations, the State need prove only one. Richardson v. State, 85 Ark. App. 347, 350, 157 S.W.3d 536, 538 (2004). A trial court’s decision to revoke probation will not be overturned on appeal unless it is clearly against the preponderance of the evidence. Williams, 2013 Ark. App. 422, at 3. In this case, the trial court’s revocation of Schiffer’s probation was not clearly erroneous or clearly against the preponderance of the evidence. See Bishop v. State, 2014 Ark. App. 41, at 4, 2014 WL 145272. Accordingly, we affirm the order of revocation and grant defense counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
Harrison and Brown, JJ., agree.
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BRANDON J. HARRISON, Judge
hOn 27 August 2013, Roy Hurst pleaded guilty to stealing property worth at least $25,000, which is a Class B felony. The court sentenced Hurst to twelve years in the Arkansas Department of Correction. In this sentence-enhancement appeal, Hurst argues that the circuit court improperly considered a misdemeanor conviction from Monroe County that was on appeal from district court to circuit court when it sentenced him in this case. For a few reasons, we affirm the circuit court.
I.
Hurst pleaded guilty in the Arkansas County Circuit Court to one count of theft of property worth at least $25,000 because he took a Kubota tractor. At sentencing, the circuit court considered evidence that Hurst was convicted in Monroe County of a misdemeanor theft of property for stealing a jar of dimes from the county assessor’s office. | ¡.The dime-jar theft was, however, just one among many prior convictions that the court received as evidence of Hurst’s near forty-year criminal history. Hurst specifically objected to the misdemeanor conviction being considered because a notice of appeal to circuit court on that charge had just been filed, and Hurst argued that it did not therefore “count as a conviction.” The court nonetheless considered the misdemeanor conviction, and his additional criminal history, as evidence of Hurst’s lack of “effort for the past forty years toward rehabilitation.” It did not, however, base a sentencing decision solely on the appealed district-court judgment. As the State noted, Hurst’s criminal history was so significant that his sentence would not and should not turn on “that one conviction.”
The circuit court’s decision to admit evidence in the sentencing phase of a criminal proceeding is reviewed for an abuse of discretion. Gill v. State, 2010 Ark. App. 524, 376 S.W.3d 529. Prejudice in sentencing cannot be successfully argued if the defendant’s sentence falls within the statutory range and is less than the maximum possible sentence. Holley v. State, 2014 Ark. App. 557, 444 S.W.3d 884; Gill, supra. Arkansas law generally allows evidence relevant to sentencing to be considered, even if it would not be admissible during the guilt/innocence phase. Crawford v. State, 362 Ark. 301, 308-09, 208 S.W.3d 146, 151 (2005).
Hurst argues that because his misdemeanor conviction was on appeal from district court to circuit court, it was “as if no judgment had been rendered.” Ark. Code Ann. § 16-96-507 (Repl.2006); Whittle v. Washington County Circuit Ct., 325 Ark. 136, 138, 925 S.W.2d 383, 384 (1996). Section 16-96-507 permits a district-court case to be tried de novo in the circuit court, which means the circuit court case proceeds as if there had been |3no trial in district court. Whittle, supra. The right to a de novo proceeding does not, however, encompass Hurst’s point — that a prior conviction on appeal from district court to circuit court cannot be used against a defendant for sentence-enhancement purposes in a separate criminal case.
The Arkansas Supreme Court has held that, for sentence-enhancement purposes, a criminal conviction is final when judgment is first pronounced; this is so even if the appealed conviction is overturned on appeal. See Birchett v. State, 291 Ark. 379, 381—82, 724 S.W.2d 492, 492—93 (1987). Furthermore, evidence of particular criminal conduct may be relevant in sentencing even if the defendant is never officially charged with the criminal offense or convicted of committing the charged offense. See Doles v. State, 2011 Ark. App. 476, 385 S.W.3d 315. We hold that the circuit court did not abuse its discretion when it considered the appealed Monroe County misdemeanor conviction when it sentenced Hurst in this case.
II.
We further hold that, apart from the appealed conviction, there was ample evidence of Hurst’s criminal history to support the court’s sentence in this case. Finally, Hurst cannot establish a prejudicial error in sentencing under Gill, supra, and Holley, supra, because his sentence was less than the maximum permitted. See Ark.Code Ann. §§ 5 — 36—103(b)(1)(A) (theft of property valued at least $25,000 is a Class B felony) and 5-4-401 (a)(3) (Repl. 2006) (sentence range for Class B felony is five to twenty years).
The circuit court’s order is affirmed.
Affirmed.
Hixson and Wood, JJ., agree.
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ROBERT J. GLADWIN, Chief Judge
| Appellant Melissa McCann-Arms appeals her conviction by a Polk County jury on one count of introduction of a controlled substance into the body of another person, pursuant to Arkansas Code Annotated section 5—13—210(b) (Repl. 2013), for which she was sentenced to twenty years’ imprisonment in the Arkansas Department of Correction (ADC). Appellant (1) challenges the sufficiency of the evidence to support her conviction; (2) argues that the circuit court erred by denying her motion to dismiss for lack of jurisdiction; and (3) argues that the circuit court erred by denying her motion to dismiss because the controlled substance was injected into appellant and not her child. We affirm.
Facts
12AppelIant was arrested on August 26, 2013, and charged with two counts of introduction of a controlled substance into the body of another person. Appellant was arraigned on August 28, 2013, and her jury trial was held on January 13, 2014. Appellant was convicted and sentenced to a term of twenty years in the ADC pursuant to a sentencing order entered on January 14, 2014. She filed a timely notice of appeal on February 3, 2014, and this appeal followed.
I. Sufficiency of the Evidence
In reviewing a challenge to the sufficiency of the evidence, an appellate court will determine whether the verdict is supported by substantial evidence. Williams v. State, 2011 Ark. App. 675, 386 S.W.3d 609. Substantial evidence can be either direct or circumstantial and is defined as evidence forceful enough to compel a conclusion beyond suspicion or conjecture. Id. On appeal, only evidence supporting the verdict will be considered and will be viewed in the light most favorable to the verdict. Id. Witness credibility is left to the trier of fact, who resolves questions of conflicting testimony and inconsistent evidence. Id. Finally, the jury is free to disregard the defendant’s self-serving version of events. Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008).
Arkansas Code Annotated section 5—13—210(b) provides that a person commits the offense of introduction of a controlled substance into the body of another person when he or she causes a controlled substance to be ingested, inhaled, or otherwise introduced into the |sbody of another person. The statute, as currently written, neither contains a definition of the term “person” nor cross-references a definition in any other statute.
Appellant claims that the record is clear that she did not introduce a controlled substance into either her own body or the body of her child while in Polk County, Arkansas. She notes that no evidence was presented of any injection of a controlled substance into the body of her child after it had been born. Although there was no evidence presented of an injection directly into the body of the child before it was born, appellant’s brief acknowledges that the child may have absorbed some amount from appellant — through the umbilical cord before it was cut.
Section 5-13-210(b) provides that it “is unlawful for any person to administer or cause to be ingested, inhaled, or otherwise introduced into the human body of another person a controlled substance as defined by the Uniform Controlled Substance Act, sections 5-64-101 to -1303 (Repl. 2005 & Supp. 2013), unless the controlled substance has been ordered for the person receiving the controlled substance by a licensed practitioner ... for a legitimate medical purpose. “Viewed in the light most favorable to the verdict, the jury heard the following evidence. ■ On November 1, 2012, appellant, exhibiting symptoms of labor, was brought to Mena Regional' Health System (Mena Regional) by ambulance. Amber Williams, R.N., admitted appellant into the hospital. Williams testified that the emergency-medical personnel told her that appellant was acting very erratic and out of control. She explained that when a woman is brought into the hospital to deliver a child, the nursing staff assesses the patient to determine the patient’s current stage of labor. Williams testified that it was very difficult to assess appellant because of her thrashing around on the bed and constant |4getting in and out of the bed. Williams noted that, as part of the initial assessment, patients are asked if they have taken any drugs and that appellant denied that she had used any drugs. Williams testified that she did not believe appellant’s denial of drug use, and because of her concerns about appellant’s erratic behavior, she contacted the police before her shift ended.
Stacie Floyd, another registered nurse at Mena Regional, testified that she came into contact with appellant soon after she was admitted into the hospital. Floyd testified that appellant was acting very erratically, thrashing and screaming, which was not consistent with someone in the very early stage of labor, which was the determination of appellant’s condition by the nursing staff.
Amber Cobb, former registered nurse at Mena Regional, testified that she assisted in the delivery and that appellant acted abnormally and cried hysterically almost to the point of hyperventilating, which caused the child’s heartbeat to drop to an abnormally low level. Cobb described the birth as abnormal because the child did not cry, and even after stimulation, he was flaccid and limp and had a blank stare. Cobb explained that she had not seen that type of blank stare in a newborn child’s eyes much in her nursing experience and that he also had an uncommon facial droop on one side of his face. Cobb also testified that while appellant was in labor, Cobb informed appellant that she had tested positive for methamphetamine. Cobb noted that appellant got very angry and upset and told Cobb that this was all Cobb’s fault.
Elena Cannon, investigator for the Polk County Prosecuting Attorney’s office, testified that she received a phone call from the local police department regarding appellant, and she obtained a search warrant on November 2, 2012, to allow blood and urine samples | Bto be taken from appellant and her child. Cannon served appellant with the search warrant while she was still in labor and gathered the samples, which were then taken to the Arkansas State Crime Lab (Crime Lab) in Little Rock.
Leanne Hazard, forensic toxicologist for the Crime Lab, performed tests on appellant’s and her newborn child’s blood, which came back positive for codeine, amphetamine, methamphetamine, norfentanyl, and lidocaine. Don Riddle, also a forensic toxicologist with the Crime Lab, testified that he tested appellant’s and her newborn child’s blood and urine. Appellant tested positive for methamphetamine in her blood and urine, and her newborn child tested positive for methamphetamine and amphetamine in his urine.
After appellant gave birth, the child was quickly taken to the nursery because his movements were abnormal. Patina Fair, another registered nurse at Mena Regional, testified that she cared for appellant’s child while he was in the nursery. Fair said that he was a poor feeder, spit up excessively, required IV hydration for dehydration, had very fast breaths, had a very shrill cry that is not common in normal babies, was very jittery and shaky, and was very hard to console, all of which are signs of withdrawal from a controlled substance. Fair spoke with appellant right before she took the child to the nursery, and appellant admitted to her that she “did this” to her own child. Fair explained to appellant that he was suffering from withdrawal from methamphetamine use.
Michael May, Senior Investigator for the 18th West Judicial District Drug Task Force, testified that he was contacted by Investigator Cannon to assist in the investigation. May and Cannon interviewed appellant at the hospital after the delivery. Appellant admitted to May that she had used methamphetamine four times while she was pregnant, including the day | fibefore she was admitted to the hospital in labor. Appellant told May that she used a needle three of the four times she used methamphetamine while pregnant. Appellant told May that she thought the methamphetamine she used would go away and not show up in her child. May testified that appellant understood that her child was suffering from methamphetamine withdrawal.
We hold that, as the relevant statute is currently written and based on the specific facts and circumstances of this case, sufficient evidence was presented to support appellant’s conviction in violation of section 5-13-210(b). Appellant admitted having used methamphetamine the day before she gave birth to her son, who was born very ill and exhibiting withdrawal symptoms. Because the State presented substantial evidence from which the jury could make that finding, the circuit court did not err by denying appellant’s directed-verdict motion.
II. Jurisdiction
Territorial jurisdiction over a criminal defendant is controlled by statute, and an appellate court need only find substantial evidence to support the finding of jurisdiction. Powell v. State, 97 Ark. App. 239, 246 S.W.3d 891 (2007). When an offense is committed partly in one county and partly in another, or the acts, or effects thereof, requisite to its consummation occur in two or more counties, jurisdiction lies in either county. Ark. Code Ann. § 16-88-108(c) (Repl. 2005). Section 16-88-108(c) is designed to prevent miscarriages of justice by extending the lines of jurisdiction beyond the limits prescribed by the common law; therefore, it is remedial in nature and must be liberally construed. Cloird v. State, 352 Ark. 190, 99 S.W.3d 419 (2003). There is a presumption in favor of jurisdiction in the county where the charge is filed. Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005); Ark. Code Ann. § 5-1-111(b) (Repl. 2013). The State is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction. Ark. Code Ann. § 5-1-111(b); Ark. Code Ann. § 16-88-104 (Repl. 2005) (presuming upon trial that the offense charged was committed within the jurisdiction of the court and that the court may pronounce the proper judgment accordingly unless the evidence affirmatively shows otherwise). The presumption can be overcome if positive evidence is admitted affirmatively showing jurisdiction to be lacking, and if such positive evidence is presented, the State must then offer evidence that jurisdiction is proper in the county where the case is being tried. Ridling, supra.
Appellant filed a pretrial motion to dismiss because she resides in Sevier County and was transported by ambulance to Mena Regional in Polk County, where her child was delivered. The State acknowledged that it had no evidence of any ingestion or injection into appellant occurring in Polk County and relied upon the child receiving the controlled substance through the placenta and umbilical cord after he had been born. The circuit court ruled that as far as any “introduction” of the substances, it would have continued during the period appellant came to the hospital in Polk County, and jurisdiction therefore would be proper.
18Appellant notes that a criminal trial must be held in the county in which the crime was committed, provided venue may be changed, at the request of the accused to another county in the judicial district in which the indictment is found. Ark. Const. art. 2 § 10; see also Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996) (limiting circuit courts to trying accusations of crimes that occurred in the counties, or judicial districts, in which they sit). She argues that the State provided no evidence to show that the substance was still passing through her body to the child in Polk County, Arkansas, and that the positive result could have been from the methamphetamine passing through the umbilical cord the day before and simply remaining in the child’s system. No scientific evidence was offered as to when the controlled substance would have passed from mother to child or how long it would have taken. Also, appellant notes that the State relied on a natural body function as the act that occurred in Polk County, not anything that appellant knowingly, willingly, recklessly, or purposefully did while in Polk County.
We disagree. The evidence indicated that appellant, while pregnant, had used methamphetamine in Sevier County the day before she was admitted into Mena Regional in Polk County to deliver her child. Appellant’s child was delivered in Polk County and tested positive for methamphetamine there. We hold that the circuit court’s finding, that the introduction of a controlled substance that began in Sevier County would have continued in Polk County because the child was born with methamphetamine in his system and was suffering from withdrawal, was not error. Consequently, jurisdiction was proper in Polk County.
|c|III. Injection Being in the Defendant and Not the Unborn Child
Appellant reiterates that the only evidence that she introduced any controlled substance, even into her own body, indicated that it occurred the night before her delivery while she was in Sevier County. Additionally, she submits that there was no evidence of an inducement into the body of the child itself except through the placenta and umbilical cord through her natural body functions. The statute under which she is charged, section 5-13-210(b)(c)(2), refers to the introduction of a controlled substance into the body of another person, but that statute does not define “person.”
The definition contained' in Arkansas Code Annotated section 5-1-102(13)(A) defines a person to include (i) any natural person, and section 5—1—102(18)(B)(i)(a) states that “[a]s used in §§ 5-10-101-5-10-105, ‘person’ also includes an unborn child at any stage of development.” Arkansas Code Annotated section 5-1-102(13)(B)(i)(b) states that “ ‘unborn child’ means offspring of human beings from conception until birth.”
Appellant points out that there is no reference in section 5-13-210 to an unborn child, only the introduction of controlled substances into the body of “another person.” In section 5-1-102, there is no definition that an unborn child is a person except in the homicide statutes, sections 5-10-101 to -105. Accordingly, appellant contends that her motion to dismiss should have been granted because the statute does not apply to an unborn child.
Appellant cites to State v. Stegall, 828 N.W.2d 526 (N.D. 2013), a North Dakota case that held that a pregnant woman cannot be charged for a crime allegedly committed against her unborn child. See also State v. Geiser, 763 N.W.2d 469 (N.D. 2009) (another North Dakota case which held that North Dakota statute NDCC § 19-03.1-22.2 does not apply |into an unborn child). We note that both Stegall and Geiser relied on a North Dakota statute expressly providing that age is to be calculated from birth. Arkansas does not have a similar statute, and her unborn child’s “age” is not at issue in this case. The question is whether he was “another person.”
Even assuming arguendo, that appellant is correct that section 5-13-210 does not protect an unborn child, she is not entitled to reversal. Although there is no specific evidence before us to indicate the exact time that appellant’s newborn child’s umbilical cord was cut following his birth, there was some amount of time that passed between the child’s birth and its detachment from the umbilical cord through which he received nutrients and fluids from appellant. Accordingly, we hold that the circuit court correctly found that appellant gave birth to her child, who, once he was born undoubtedly was “another person” suffering from withdrawal from methamphetamine, which appellant caused him to ingest or otherwise introduced into him.
Affirmed.
Hixson, J., agrees.
Whiteaker, J., concurs.
. This court initially attempted to certify this appeal to the Arkansas Supreme Court on the basis that the application of the relevant statute to a mother introducing a controlled substance into the body of another person — specifically, her child, through the umbilical cord — by way of ingesting or injecting a controlled substance into herself during the time the child was still attached via the umbilical cord is an issue of first impression. The Arkansas Supreme Court declined to hear the appeal.
. Count 1 was subsequently nolle prossed.
. We note that appellant initially made this argument, and others regarding jurisdiction, suppression of evidence, etc., via pretrial motions that the circuit court took under advisement after a pretrial hearing on January 7, 2014. Appellant renewed these motions at the conclusion of the State’s case, albeit without much specificity or discussion. The circuit court again denied the motions, and appellant did not put on a defense.
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PER CURIAM
| Jn 2009, an amended judgment was entered reflecting that appellant Gary J. Mason had been found guilty of rape, sexual indecency with a child, and possessing matter depicting sexually explicit conduct involving a child for which he was sentenced to serve consecutive sentences of 300 months’ imprisonment for rape and 72 months’ imprisonment for sexual indecency with a child, with a concurrent sentence of 120 months’ imprisonment for possessing matter depicting sexually explicit conduct involving a child. The Arkansas Court of Appeals affirmed. Mason v. State, 2009 Ark. App. 598, 330 S.W.3d 445.
In 2013, appellant filed in the Jefferson County Circuit Court a pro se petition for declaratory judgment and for writ of mandamus against the Director of the Arkansas Department of Correction (“ADC”), in whose custody appellant is being held, concerning his eligibility for parole based on the sentence for rape. The circuit court dismissed the |2petition, and appellant brings this appeal from the order. We review the action of the circuit court de novo, and we will uphold the circuit court’s decision in a declaratory judgment and mandamus action unless it is clearly erroneous. Carroll v. Hobbs, 2014 Ark. 395, 442 S.W.3d 834 (per curiam).
Appellant’s eligibility for parole was determined by the law in effect at the time his offenses were committed between August 2007 and March 2008. See id. Under the provisions of Arkansas Code Annotated section 16-93-611(a)(1) (Repl. 2006) (repealed by Act 570 of 2011), as in effect at the time appellant committed the offenses, he was required to serve at least seventy percent of the 300-month sentence for rape before being eligible for parole or transfer. The seventy-percent requirement applies notwithstanding any law allowing the award of meritorious good time or any law to the contrary. See Gardner v. Hobbs, 2013 Ark. 439, 2013 WL 5878140 (per curiam).
Appellant argued in the petition that the application of section 16—93—611 (a)(1) to his sentence was an unconstitutional “sentence enhancement” illegally applied by the ADC without a court order, that he was denied due process of law by the application of the statute without notice, and that the ADC usurped the power of the judiciary by modifying his |ssentence.
The purpose of the declaratory-judgment statutory scheme is to settle and to afford relief from uncertainty and insecurity with respect to rights, statutes, and other legal relations. McCutchen v. City
of Ft. Smith, 2012 Ark. 452, 425 S.W.3d 671. This court has held that there are four requisite conditions before declaratory relief may be granted: (1) there must exist a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking relief must have a legal interest in the controversy; (4) the issue involved in the controversy must be ripe for judicial determination. Ark. Dep’t of Human Servs. v. Ross-Lawhon, 290 Ark. 578, 721 S.W.2d 658 (1986). Here, appellant failed to state a basis for declaratory judgment under Arkansas Code Annotated sections 16-
111-101 to -111 (Repl. 2006). Without establishing a right to declaratory judgment, appellant provided no basis for a writ of mandamus to issue. Cridge v. Hobbs, 2014 Ark. 153, 2014 WL 1344404 (per curiam). The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. Banks v. Hobbs, 2013 Ark. 377, 2013 WL 5519863 (per curiam). A writ of mandamus is issued by this court only to compel an official or a judge to take some action, and, when requesting a writ, a petitioner must show a clear and certain right to the relief sought and the absence of any other remedy. Id. A writ of mandamus will not lie to control or review matters of discretion. Id.; see also Aguilar v. Lester, 2011 Ark. 329, 2011 WL 3930362 (per curiam).
With respect to appellant’s argument that the appellee has denied him due process of law by applying the statute at issue to his case, there is no constitutional right or entitlement to parole that would invoke due-process protection. Cridge, 2014 Ark. 153; see also Michalek v. Lockhart, 292 Ark. 301, 730 S.W.2d 210 (1987).
As to appellant’s contention that a trial court order was required before the ADC could apply certain statutes to appellant’s parole-eligibility status, parole eligibility is not within the purview of the trial court. See Mitchem v. Hobbs, 2014 Ark. 233, 2014 WL 2019278 (per curiam) (citing Thompson v. State, 2009 Ark. 235 (per curiam)) (holding that, because determining parole eligibility is the prerogative of the ADC, the trial court would not have had authority to place conditions as to parole eligibility on the sentence pronounced).
The arguments raised by appellant in his petition and in this appeal stem primarily from his erroneous characterization of section 16-93-611 as an enhancement statute. Parole-eligibility determinations by the ADC do not constitute a modification of a prison sentence. Cridge, 2014 Ark. 153. The determination of parole eligibility is solely within the province of the ADC. Aguilar, 2011 Ark. 329. This court has repeatedly held that the ADC, not the sentencing court, determines parole eligibility. See Pitts v. Hobbs, 2013 Ark. 457, 2013 WL 5968940 (per curiam) (rejecting the argument that a parole-eligibility statute cannot be applied to a sentence absent some reference to the particular statute on the judgment- and-commitment order); Stephens v. Hobbs, 2012 Ark. 332, 2012 WL 4017376 (per curiam) (rejecting appellant’s due-process argument that a parole-eligibility statute should not apply when the jury, the court, and the appellant were unaware of the statute and did not intend for it to apply to the judgment); Johnson v. State, 2012 Ark. 212, 2012 WL 1739110 (per curiam) (holding that parole eligibility falls clearly within the domain of the executive branch and specifically the ADC, as fixed by statute); Thompson v. State, 2009 Ark. 235, 2009 WL 1784086 (per curiam) (holding that, because determining parole eligibility is the prerogative [ 5of the ADC, the trial court would not have had authority to place conditions of parole eligibility on the sentence announced); see also Abdullah v. Lockhart, 302 Ark. 506, 790 S.W.2d 440 (1990); Fain v. State, 286 Ark. 35, 688 S.W.2d 940 (1985).
Here, appellant was found guilty of rape committed between August 2007 and March 2008, and the ADC, in accordance with section 16-93-611, applied the statute to appellant’s sentence for that crime to determine his parole-eligibility date. Section 16-93-611, as in effect when appellant committed the offense, provided that any person who is found guilty of, or who pleads guilty or nolo contendere to, rape shall not be eligible for parole until the person serves seventy percent of the term of imprisonment to which the person is sentenced. We have specifically recognized that the statute does not allow for parole or transfer until a person who has been found guilty of, or who pleads guilty or nolo contendere to, designated crimes has served seventy percent of his sentence. Ritter v. Hobbs, 2014 Ark. 68, 2014 WL 585995 (per curiam); Anderson v. Hobbs, 2013 Ark. 354, 2013 WL 5434693 (per curiam).
Finally, to the extent that appellant contends that section 16-93-611 should not have been applied to his sentence by the ADC because the face of the judgment did not cite the statute, we rejected the same argument in Pitts, 2013 Ark. 457.
Inasmuch as none of the claims for relief raised in appellant’s petition demonstrated that he was entitled to any relief by means of a declaratory judgment or a writ of mandamus, the circuit court did not err in declining to grant the relief sought. The order is affirmed.
Affirmed.
. This court will consider only- those issues raised below. If an issue was not raised in the petition, or if the support for an issue was not included in the petition, the trial court did not have the opportunity to rule on the issue or to consider the grounds advanced in support of the issue, and this court will not consider issues on which there was no ruling below or arguments in support of a claim that are advanced for the first time on appeal. See Girley v. Hobbs, 2014 Ark. 325, 445 S.W.3d 494 (per curiam).
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PAUL DANIELSON, Associate Justice
| jThis appeal presents a review of an order by the Ouachita County Circuit Court denying a motion to compel arbitration. Appellants are GGNSC Holdings, LLC, its related corporate entities, individual Golden LivingCenters located throughout Arkansas, and certain employees of GGNSC (collectively referred to as “appellants”). Appellees are Dianne Roche, as attorney-in-fact for Thomas Roche; Nellie Lamb, by and through Richard Williams, as Guardian of the Estate and Person of Nellie R. Lamb; Betty Huebner, as Special Administrator of the Estate of Wilma Richey, deceased; Greg Brown, as Special Administrator of the Estate of Louise Brown, deceased; and Leon Robinson. GGNSC argues on appeal Lthat the circuit court erred (1) in refusing to enforce the parties’ arbitration agreement; and (2) in relying on appellees’ additional arguments, that there was a lack of authority to bind appellees to the arbitration agreement and that the agreement was unconscionable, as grounds for denying the motion to compel arbitration. As this case is an. interlocutory appeal from an order denying a motion to compel arbitration, our jurisdiction is proper pursuant to Arkansas Rule of Appellate Procedure—Civil 2(a)(12) (2014). Because the circuit court failed to expressly rule on the threshold issue of whether there was a valid agreement to arbitrate, we must reverse and remand this matter to the circuit court.
The facts are these. Kathryn S. Chap-pel, as Special Administrator of the Estate of W.C. Chappel, deceased, filed an action alleging claims of negligence and wrongful death, on behalf of herself and other members of a class of similarly situated persons, against GGNSC, numerous related corporate entities, several of its nursing-facility centers located throughout Arkansas, and certain individuals who were employed by GGNSC or one of its related entities. The complaint alleged that GGNSC operated, managed, and/or maintained its nursing facilities in a manner that resulted in a failure to adequately staff the facilities to properly care for patients and did so in order to maximize profits. Appellees alleged violations of the Arkansas Deceptive Trade Practices Act, violations of the Long-Term Care Residents’ Rights Act, and breach of the admission agreement between residents and appellants. Appellees requested class certification for a class of all residents of the facilities between | oOctober 2006, and July 1, 2009; sought actual, compensatory, and punitive damages; and requested an award of attorneys’ fees and costs.
In their answers to the complaint, appellants alleged that any claims by appellees were barred from being litigated in a court of law because of arbitration agreements that were signed by the residents or their authorized agents. GGNSC subsequently filed motions to compel arbitration and stay proceedings as to appellees. The motions included identical allegations, specifically, that the plaintiffs or their agents signed a “Resident and Facility Arbitration Agreement” that was included in the admissions packet presented to each appel-lee. GGNSC asserted that all circuit court proceedings should be stayed pending resolution through the arbitration process because the arbitration agreements governed the disputes raised by appellees in their complaint. The relevant language pertaining to arbitration provided as follows:
It is understood and agreed by [the] Facility and Resident that any and all claims ... shall be resolved exclusively by binding arbitration to be conducted at a place agreed upon by the Parties, or in the absence of such an agreement, at the Facility, in accordance with the National Arbitration Forum Code of Procedure, which is hereby incorporated into this Agreement, and not by a lawsuit or resort to court process. This agreement shall be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16.
Appellees filed a response to appellants’ motions to compel arbitration asserting that they should be denied because appellants could not sustain their burden of proving that the parties, either personally or through a duly authorized agent, manifested assent to the terms |4of the arbitration agreement. Additionally, appellees argued that the agreement could not be enforced due to impossibility of performance — a defense to contract enforcement. Appellees argued that appellants chose the National Arbitration Forum (“NAF”) to serve as the “exclusive” administrator of arbitration and specifically adopted the NAF Code of Procedure, which called for arbitration to be conducted “exclusively” by and through the NAF, but the NAF was no longer available to conduct consumer arbitrations. Finally, appellees also asserted the contract defense of unconsciona-bility, arguing that the preprinted, fill-in-the-blank form was an adhesion contract, offered on a take-it-or-leave-it basis and, thus, was unenforceable.
The circuit court held a hearing on the motions to compel arbitration, and the parties further argued the issues raised in their respective motions and responses. At the conclusion of the hearing, the circuit court allowed the parties to conduct further discovery. Thereafter, on January 30, 2014, the circuit court entered an order denying the motions to compel arbitration. Therein, the circuit court concluded that the reference to the NAF and its Code of Procedure adversely affected the validity of the agreement. In so concluding, the circuit court noted that the NAF no longer arbitrates consumer complaints and appellants’ choice of the NAF tainted the validity of the arbitration agreement. Moreover, the circuit court noted that the contract made the NAF the mandatory and exclusive agent, adopted its Code of Procedure, and set the fee schedule for the parties and, as such, the choice of the NAF and | Sits Code of Procedure were integral and essential terms of the contract that could not be severed. The circuit court concluded that it could not supply an alternative arbitrator, an alternative code of procedure, or an alternative fee schedule because the provisions were so significant that the court would be rewriting the contract, and it could not do so. This appeal followed.
At the outset, we note that an order denying a motion to compel arbitration is immediately appealable under Rule 2(a)(12). This court reviews an order denying a motion to compel de novo on the record, determining the issue as a matter of law. E.g., Bank of the Ozarks, Inc. v. Walker, 2014 Ark. 223, 434 S.W.3d 357.
As its first point on appeal, GGNSC argues that the circuit court erred by refusing to enforce the parties’ valid arbitration agreement because that agreement referenced the NAF and stated that the arbitration shall be conducted in accordance with the NAF’s Code of Procedure. In this regard, GGNSC asserts several subpoints, including that (1) the plain language of the arbitration agreement establishes that the NAF Code of Procedure is not integral to the agreements; (2) appel-lees failed to offer any evidence that the NAF Code was integral to the parties’ agreement; (3) the NAF clause may be severed; and (4) the circuit court improperly imputed the NAF’s alleged inappropriate conduct to GGNSC.
Appellees counter that the circuit court properly denied the motions to compel arbitration because the unavailability of the NAF rendered the arbitration agreement invalid. According to appellees, the agreement was invalid because the designation of the NAF and the adoption of its Code of Procedure were essential and integral terms of the agreement; that | fithose provisions could not be severed; and, the circuit court did not improperly impute the NAF’s conduct to GGNSC.
Before turning to the merits of the arguments raised by GGNSC, this court must determine whether the circuit court ruled on the threshold issue of whether there was a valid agreement to arbitrate. Although an arbitration provision is subject to the Federal Arbitration Act, courts look to state contract law to decide whether the parties’ agreement is valid. E.g., DIRECTV, Inc. v. Murray, 2012 Ark. 366, 423 S.W.3d 555. In Arkansas, the same rules of construction apply to arbitration agreements as apply to agreements in general. E.g., Alltel Corp. v. Sumner, 360 Ark. 573, 203 S.W.3d 77 (2005). Thus, the essential elements for an enforceable arbitration agreement are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligation. Id.
Although the question of whether the circuit court ruled on the issue regarding the validity of the agreement itself is not an issue raised by the parties, this court has made clear that a circuit court may not skip this step of the analysis, nor will this court presume a ruling on this threshold issue simply because a circuit court rules on an asserted defense. See Bank of the Ozarks, 2014 Ark. 223, 434 S.W.3d 357. In Bank of the Ozarks, the circuit court denied the appellant’s motion to compel arbitration after finding that the agreement was unconscionable. This court reversed and remanded to the circuit court to determine, in the first instance, whether there was a valid agreement to arbitrate between the parties. Id. Wé further instructed that if the circuit court was to find that there is a valid agreement to arbitrate, then it must determine whether the dispute falls within the scope of the agreement. Id. Only then, could the circuit court consider whether the appellees had a defense that may be applied to invalidate the agreement. Id.
It is true that this court distinguished Bank of the Ozarks in the subsequent ap peal of Asset Acceptance, LLC v. Newby, 2014 Ark. 280, 437 S.W.3d 119. There, a majority of the court explained the ruling in Bank of the Ozarks but concluded that
[w]hile at first blush it might appear that our holding in Bank of the Ozarks would require us to reverse and remand this case for the circuit court to rule on the question of whether a valid arbitration agreement exists, we find that the order in [the] present case is distinguishable from Bank of the Ozarks and is not controlled by that precedent.
Id. at 6, 437 S.W.3d at 122. There, both parties argued the issues of assent, mutuality, and waiver to the circuit court, but the circuit court entered a blanket denial of the motion to compel and further denied a subsequently filed motion for specific findings. This court held that there was no need to remand the case for a threshold finding on whether a valid agreement to arbitrate existed because the circuit court’s order constituted a ruling on all of the issues raised by the parties, including the threshold issue of mutual assent. Id.
Considering the instant case in light of our most recent precedent, it is clearly more akin to the situation presented in Bank of the Ozarks than that presented in Asset Acceptance. Here, we simply do not have a blanket denial of the motion to compel. The order that is the subject of this appeal specifically addresses an issue involving impossibility of performance, a defense to a contract. After an in-depth discussion on that issue, the circuit court included a catch-all sentence that read, “The other arguments of Plaintiffs’ counsel against the motion to compel arbitration are persuasive and contribute to this decision.” Those other arguments praised by appellees were that there was no mutual assent because of a lack of authority on the part of those who signed the arbitration agreement and that the agreement was unconscionable.
Clearly, appellees challenged the validity of the arbitration agreement itself and, thus, it was incumbent on the circuit court to address this threshold issue. We cannot construe the court’s catch-all sentence to be a ruling on the issue of whether there was a valid agreement to arbitrate. The circuit court stated that appellees’ other arguments contributed to its decision to deny the motions to compel. But, it would be illogical for this court to conclude that appellees’ argument that there was no valid agreement to arbitrate contributed to the denial of the motions because there would have been no need for the court to consider the impossibility defenses. In other words, if we were to assume anything about the circuit court’s ruling, we would have to assume that the court impliedly found that there was a valid agreement to arbitrate and then considered the contract defense. But, we are not allowed to presume any such ruling pursuant to our precedent in Bank of the Ozarks. Accordingly, we reverse and remand this matter to the circuit court.
Reversed and remanded.
Baker, Goodson and Hoofman, JJ ., concur.
Hart, J., concurs without written opinion.
. Thomas Roche, Nellie Lamb, Wilma Richey, Louise Brown, and Leon Robinson each resided in a Golden LivingCenter facility. There are additional plaintiffs below who were not subjects to the motions to compel and, thus, are not parties to the present appeal.
. Mrs. Chappel also alleged certain individual claims, but as previously stated she is not a party to the present appeal.
. At the conclusion of the hearing, the circuit court also orally ruled from the bench and denied a motion to dismiss filed by appellants and granted appellees’ motion for class certification.
. Appellees do not assert that there was a lack of authority with regard to Mr. Robinson.
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Battle, J.
On the 17th day of May, 1910, W. L. Blanks, J. H. Schaefer and D. E. Watson, Commissioners of AVater and Eight District No. 2 in the town of Hamburg, filed a complaint in Ashley Chancery Court, and therein alleged:
“Plaintiffs say that they are the Commissioners of Water .& Light District No. 2 in the town of Hamburg, Arkansas, .a district duly organized under the laws of this State, embodied in sections 5664 to 5742 of Kirby’s Digest, and the statutes amendatory thereof; that said district was duly organized for the purpose of supplying the inhabitants of the territory embraced •therein with water and electric lights as provided in said act, .and the town council of the said town of Hamburg has duly levied its assessments for the making of said improvement. That the defendant is the owner of the following real estate in said town and within, the limits of said district, towit: Dot No. 2 in .block No. 13.in the town of Hamburg, Arkansas, and that the amount of the assessment levied against said property aforesaid is $7.50. The said assessment has long been overdue, and the defendant refuses to pay the same.
“Wherefore plaintiffs pray for a decree for the foreclosure of the lien of said assessment; that the property aforesaid be sold, and the proceeds applied to the satisfaction of said lien, and for all other proper relief.”
The defendants answered and denied that the district was duly organized, and alleged that it was illegal because it embraces “two entirely distinct and separate improvements.”
The plaintiffs amended their complaint by alleging “that said improvements are combined for purposes of economy, and that their combination is to the advantage of the property owners of the district, since in this way one plant, which is operated by day for water purposes and by night for electric lights, will supply all the requirements and be greatly to the advantage of the consumers, in that the total cost of the improvements will not exceed twenty per centum of the value of the real property in the said district as shown by the last county assessment.”
The defendants demurred to the complaint as amended, and plaintiffs demurred to the answer.
The court overruled the defendant’s demurrer, and sustained ■the plaintiffs, and, the defendants declining to plead further, rendered judgment in favor of plaintiffs, and the defendants appealed.
The Constitution of this State provides: “Nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assessments on real property for local improvements in towns and cities under such regulations as may be prescribed by law, to be based upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected.” Const. 1874, art. 19, § 27.
Section 5665 of Kirby’s Digest, as amended, provides: “When any ten owners of real property in any such city or incorporated town, or of any portion thereof, shall petition the city or town council to take steps toward the making -of any such local improvement, it shall be the duty of the council to at once lay off the whole city or town, if the whole of the desired improvement be general and local-in its nature to said •city or town, or the portion thereof mentioned in the petition, if it be limited to a part of said city or town only, into one or more improvement districts,” etc.
Section 5667 of the same Digest provides: “If, within three months after the publication of any such ordinance, a majority in value of the owners of real property within such district adjoining the locality to be affected shall present to the council .a petition praying that such improvement be made, which petition shall designate the nature of the improvement to be undertaken, and that the cost thereof be assessed and charged •upon the real property situated within such district or districts, the city council shall at once appoint three persons, owners of Teal property therein, who shall compose a board of improvement for the district.”
Section 5675 of Kirby’s Digest provides: “In the case of the construction of water works or gas or electric light works ■by any improvement district or districts, the city or town‘council, after such works are constructed, shall have full power and authority to operate and maintain the same, instead of the improvement district commissioners, and said city or town council may supply water and light to private consumers, and make and collect uniform charges for such service, and apply the income thereof to the payment of operating expenses and maintenance of such works.”
■ In Cráne v. Siloam Springs, 67 Ark. 30, it was held that improvement districts can be created under these statutes for the purpose of constructing waterworks, and that such district might embrace the entire area of a city or town. It is equally certain that improvement districts can be created by the same authority for the purpose of supplying a city or town with electric lights. Can one district be created for both purposes? The statutes do not expressly prohibit the creation of one district for the purpose of making two local improvements. Their object is to secure the improvements upon the terms and conditions prescribed by the statutes. If the two improvements cover the same territory, and can be made as fully and effectually and •in the same manner, and without prejudice to the rights of any of the property owners under the statutes, by one as they can be by two districts, we see no valid reason why they should not be combined and made in such manner. In such way they can be treated as one improvement, and as such made in the manner prescribed by the statutes. And this may especially be done when, so combined, they can be constructed and maintained by one district at a much less cost than they can be otherwise, as in this case. When, however, one district can not be used to make two improvements in the manner indicated,, it would seem to be unauthorized by the statutes, and one district should be created for making each improvement, and' in case of doubt is preferable.
Further than is shown by the pleadings, we are not advised as to how the “Water and Electric Light District Number 2 of the town of Hamburg” was created or how it will serve to-answer the purpose of making the two improvements for which it was created, or whether it can serve for both purposes. But the presumption is it was lawfully created. Section 5691 of Kirby’s Digest is as follows: “The board (on refusal - of any property owner to pay his assessment) shall straightway cause-a complaint in equity to be filed in the court having jurisdiction of suits for the enforcement of liens upon real property,, for the condemnation and sale of such delinquent property, for payment of said assessment, penalty and costs of suits, in which complaint it shall not be necessary to state more than the fact of the assessment and nonpayment thereof within the time required by law, without any further statement or any steps required to be taken by the council, or the board, or any officer whatever concluding with a prayer that the delinquent property be charged with the amount of such assessment, penalty and' costs, and be condemned and sold for the payment thereof.” That has been substantially done in this case. The defendants,, answering, did not attack the district in question, except to say that it “embraces two entirely distinct and separate improvements.” The presumption is the district was created in a lawful manner, and is legal. Kansas City, Pittsburg & Gulf Railway Company v. Waterworks Improvement District No. 1 of Siloam Springs, 68 Ark. 376, 378; Whipple v. Tuxworth, 81 Ark. 391, 403.
Decree affirmed.
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Wood, J.
The appellee brought this suit against appellant to recover damages alleged to have been sustained by appellee in being refused admission as a passenger on, and in being ejected from, one of appellant’s trains while in the act of boarding same at Little Rock, Arkansas, for the purpose of taking passage to Batesville, Arkansas.
There was a jury trial, and the verdict and judgment were in favor of appellee for $700.
The evidence on behalf of appellee tended to show that he, in company with two other parties, one of whom had purchased a ticket for appellee, attempted to get on one of appellant’s train at the depot in Little Rock, for the purpose of going to Batesville; that the officials in charge of the train refused to permit appellee to board the train, stating to him at the time that he was drunk; that appellee, notwithstanding such refusal, when the train going to Batesville .began to move, attempted to board same; that the conductor shoved or threw ■him from the steps to the ground; that in the fall his leg was injured in the same part where it had been fractured some three years before; that the injury was severe and very painful; that the appellee had been a cripple, one limb -being shorter than the other; that in consequence he limped; that as soon as he was ejected from the train a policeman arrested him, having been requested to do so by the one who ejected him from the train; that the policeman dragged him to the baggage room, and from there he was taken to police headquarters, and thence to jail.
The testimony on behalf of. appellant tended to show that appellee, when he attempted to board appellant’s train, was drunk; that because of that fact the conductor refused to permit him to board the train; that, on being refused, appellee became boisterous and profane, and that for this cause the policeman arrested him, and took him before the police court on a charge of breach of the peace; that appellee was not injured or hurt in any manner by the act of the conductor in'refusing him admission to the train.
First. Section 3 of the act of March 2, 1909, provides as follows:
“All conductors on trains running in this State are hereby authorized and impowered to act in the capacity of peace officers on their respective trains in this State for the specific purpose only to arrest any and all persons on their respective trains that they find to be drunk or in an intoxicated condition, and deliver said person or persons together with the names of two witnesses, who are not railroad employees, to some peace officer at the first available opportunity, and said conductor is hereby authorized and impowered to deputize any person or persons present to assist him in the performance of said duty.”
The appellant contends that the act “makes the conductor the absolute judge of the passenger’s condition with reference to being drunk on any train in this State.” That is not a correct construction of the statute. The conductor in the discharge of his duty under this statute must not act arbitrarily, and without due care. While the company, under this statute, could not be held liable for the conduct of the conductor in making the arrest of any person so long as such conductor was acting in good faith and with ordinary care, yet the company would be liable if the conductor in arresting any person did not exercise ordinary care to ascertain whether such person was drunk or did not act in good faith, i. e., with the honest purpose to discharge his duty under the circumstances.
Where one arrested by the conductor of a railway train shows that he was not drunk when he was arrested, the company, in order to escape liability for any damages that resulted proximately from such arrest, would have to show that its conductor acted in good faith in making such arrest, i. e., that he honestly believed, after the exercise of ordinary care under the circumstances of the arrest, that the person arrested was ■drunk. The company would not be liable for the arrest, where the person arrested was sober, if the conductor, exercising ordinary care, honestly believed, under all the facts and circumstances, that the party arrested was drunk, and made the arrest and the ejection without any unnecessary force. Whether or not the party arrested- was drunk at the time of the arrest, and whether the conductor in making the arrest acted with ■ordinary care, and whether he honestly believed at the time ■of the arrest that the party arrested was drunk, and whether be used only such force as was necessary, are all questions of fact to be submitted to the jury under appropriate instructions.
Second. Appellant contends that the court erred in giving appellee’s prayer number 8 as follows:
“8. Although you are instructed that the conductor would be the judge as to whether the plaintiff was drunk, yet, if the conductor erred in his judgment, the defendant would be answerable and liable for any injuries that resulted therefrom.”
The instruction was erroneous. It does not conform to the •statute as we have construed it. Under this instruction the appellant would be liable for any mistake of its conductor in making the arrest, no matter if he acted in good faith and with ordinary care. True, in other instructions given at the request of appellant the jury were told that if the conductor “honestly and in good faith believed that appellee was drunk,” and for that reason “refused to permit him to enter the train,” etc., .appellee could not recover. But these latter instructions were in conflict with instruction number 8, supra.
The attention of the court was specifically directed to the •error in instruction number 8 .by instructions numbered 3 and 13 gi'ven at appellant’s request (Reporter set forth 3 and 13 in note).
The jury under the conflicting instructions would not know which were correct, and would be without any sure guide. Con flicting instructions should not be given. Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, and cases cited. See also St. Louis, I. M. & S. Ry. Co. v. Rogers, 93 Ark. 564.
The court gave, over appellant’s objection, the following instruction:
“You are instructed, if you find for the plaintiff, that it will be your duty to assess his damages, and that in doing so you may take into consideration any injuries inflicted upon' the plaintiff, the pain and suffering incident thereto, his humiliation and mortification, and assess his damages at such a: sum as in your judgment you may find from the testimony would compensate him for the injuries done, pain, suffering and humiliation.”
There was no error in the giving of this instruction. By it the jury were left to determine from the testimony what damage appellee had suffered from the injuries done, pain, suffering and humiliation. The instruction did not assume the facts. But there was no conflict in the evidence as to appellee having been injured, nor that he suffered pain, and was ejected’ under circumstances that were humiliating. Therefore, even if the instruction assumed these as uncontroverted facts, it was-nevertheless not prejudicial.
The other errors of which appellant complains as to the manner of interrogating witnesses and the remarks of counsel will not likely arise in the next trial, and we will therefore not discuss’ them.
For the error in giving instruction number 8 as indicated’ the judgment must he reversed, and the cause remanded for new trial.
Instruction No. 3 requested by the appellant and refused by the court, and instruction No. 13 given at appellant’s request, were as follows:
“3. If you find from the evidence that at the time plaintiff presented himself at the train of defendant in Little Rock for the purpose of taking passage thereon he appeared to be under the influence of intoxicants or -was intoxicated, or if the conductor or the agents and employees of defendant in charge of said train honestly and in good faith believed that he was drunk or intoxicated, and for that reason refused to permit him to enter said train, then he cannot recover, and your verdict must be for the defendant.” •
“13. If you find from the evidence that the conductor in charge of defendant’s train honestly and in good faith believed from plaintiff’s appearance and from the smell of liquor on plaintiff’s breath that plaintiff was drunk or intoxicated- when he presented himself for passage upon defendant’s train, and that on account of his said condition the conductor refused to accept plaintiff as a passenger, and used no more force than was necessary to prevent plaintiff from entering upon said train, then plaintiff cannot recover, and your verdict should be for defendant.” (Rep.)-
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Hart, J.
This was a suit upon a written contract by appellee against appellant to recover damages for an alleged breach thereof in failing to deliver a certain quantity of logs to be sawed into lumber. Both parties to the suit are corporations, and the contract in question was executed on the 24th day of February, 1908.
By the terms of the contract, appellant agreed to furnish to appellee about four million feet of gum logs to be sawed into lumber at a fixed price per thousand feet. After supplying appellee with 2,176,322 feet of saw logs, which appellee manufactured into lumber according to the terms of the contract, appellant failed and refused to deliver any more saw logs. Hence this suit. At the time the contract was executed, appellee was, and had been for several years prior thereto, engaged in the general lumber business at Helena, Arkansas. It owned and operated a sawmill and box factory and also a line of tow boats and barges engaged in towing rafts and hauling logs. These various enterprises were conducted under one management.
The case was tried before a jury, which returned a verdict for appellee in the sum- of $6,351.33. To reverse the judgment rendered appellant has prosecuted this appeal.
From the brief of appellant we quote the following:
“The question of liability is no longer open to debate in this case. The verdict of the jury has settled that. We desire to submit to the court only the question of damages.. The rule of damages announced by the trial court was this: That the plaintiff, if entitled to recover, might recover loss of profits in sawing and stacking the lumber made from logs not furnished, and agreed to be furnished.”
The action of the court in giving this instruction was not made the ground of a motion for a new trial. Hence, according to the settled rules of this court, the question of the correctness of the court’s action in giving the instruction is not presented to us for review. St. Louis & S. F. Rd. Co. v. Fayetteville, 75 Ark. 534; Ince v. State, 77 Ark. 418; St. Louis, I. M. & S. Ry. Co. v. Baker, 67 Ark. 531; Burris v. State, 73 Ark. 453. Moreover, the correctness of the instruction is not questioned by counsel for appellant.
The only question presented for our consideration is the actipn of the court in excluding from the jury certain evidence which appellant contends should have been admitted as showing the cost of performing the contract on the part of appellee.
In discussing the items of costs to be allowed where the measure of damages is the profits to be derived from the contract, the Supreme Court of Minnestota said:
“When one party to an executory contract, like that on which this action is brought, refuses further to comply with it on his part, the other party has an immediate cause of action for said breach; and he may sue on it at any time and recover the damages which he may have sustained by being deprived of the benefits accruing to him under it.
“If he treat the contract as ended and sue immediately upon its breach, his damages are to be measured by the value of the contract to him at the time it was broken; and this value is estimated by the profits he would have realized during the continuance of the contract, had it been faithfully carried out by the parties. But, in estimating the profits which a party under such a contract would realize, allowance must be made for every item of cost and expense necessarily attending a full compliance on his part. If, therefore, the contract is for manufacturing a given article, and mills and machinery are necessarily employed in making it, the reasonable or usual rent or value of the use of such mills and machinery enters into the cost of manufacture, and should be taken into consideration in estimating the profits, because the profits are as directly affected by such expenses as by any other.” Morrison v. Lovejoy, 6 Minn. 354; Dunn v. Johnson, 33 Ind. 54, 5 Am. Rep. 177; Heckley v. Steel Co., 121 U. S. 264; 13 Cyc., p. 54, and cases cited in note 70.
The price to be paid for sawing the logs into lumber and stacking the same was fixed by the contract at $6 per thousand feet, and the amount of logs which appellant failed to furnish amounted to 1,823,678 feet.
W. B. Reeves, .the' manager of appellee company, testified that he had been in the lumber business a great many years, and that the sawmill plant of appellee had a daily capacity of 60,000 feet. He stated that he had made a detailed report of the cost of one week’s sawing gum. That this statement showed the expenses of a week’s operation of the sawmill just after they commenced the performance of the contract in question. That the cost of sawing per thousand feet was $2,652. The items given by him are as follows:
1. Tabor of sawing..........................$1.82
2. Tabor trucking and stacking...............705
3. Oil, belting and rope.......................06
4. Repairs, overhauling, etc...................067
Total cost per M........................$2,652
He testified that the first item included all the laborers actually engaged in operating the sawmill, including the foreman. That the second item included the cost of all laborers engaged in bearing away the lumber after it was sawed and stacking it. That the third item included the cost of the oil, belting, etc., necessary to keep the sawmill in running order, and that the fourth item included the cost of overhauling the mill, making the necessary repairs, and keeping it in good condition. That the cost of each item was fixed at the cost which experience had shown them to be.
It is contended by counsel for appellant that these items do not include the total cost of operation. They first insist that the court erred in not permitting them to prove what amount was • paid the office force of appellee. The evidence offered was too general in its character. Appellee had introduced testimony tending to show the entire cost of manufacturing the logs into lumber. While it is obvious that appellant had a right to contradict this evidence iby showing that other items of cost entered into the manufacture of the logs into lumber, yet it was necessary that this testimony should be of such a definite character as would assist the jury at arriving at a correct determination of the question. Appellant, in order to make such testimony competent, should either have offered to show what proportion of the expenditure of appellee for office force was used in running the sawmill, or that an increased office force would be needed in operating the sawmill while appellee was engaged in the performance of the contract in question.
It is next objected by counsel for appellant that the court erred in not allowing it to prove the value of appellee’s plant or the sum of money invested therein and also the cost of insurance thereon. This assignment of error is open to the same objection as the preceding one. That is to say, the evidence offered was as to the cost or amount invested m the entire plant of appellee, and was too general. The jury could not from it have reached any satisfactory conclusion as to the cost or amount invested in the sawmill. Indeed, it is questionable if testimony of the amount of capital invested in the sawmill would be competent evidence in a case like this; for this is not a case where the end sought is to find out the net profits of a mercantile or other business of like character for a given period of time. In the present case, while appellee required machinery to enable it to perform its contract, it was not necessary for it to own such machinery. It might rent it. Hence, in ascertaining the profits, one of the elements of cost to be allowed might be the usable or rental value of the sawmill during the period necessary for the performance of the contract, and the' amount of capital invested could not be taken into consideration in determining that fact. Appellee was the owner of its own sawmill plant at the time.
It is next contended by counsel for appellant that a • calculation will show that the verdict of the jury was greater than that warranted by the evidence. This is conceded by counsel for appellee, and they offer to remit the excess.
The judgment will be modified to allow a recovery for $6,105.67, and the judgment, thus modified, will be affirmed.
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Battle, J.
On the 27th day of January, 1901, J. J. Smith-wick departed this life, intestate, leaving C. A. Smithwick, his widow, and W. R. Smithwick his only heir. At the time of his .death he was the owner of considerable real estate, and two thousand dollars in cash and notes, and about forty head of cattle. After his death the widow and heir by a written contract divided the estate of the deceased between themselves. In the division some money was set apart to the widow. She deposited it in a bank to her credit. She often referred to it as W. R. Smithwick’s money, but never relinquished control over it, and always controlled it, collecting interest on it.
Mrs. Smithwick died on the 16th day of July, 1908, leaving a last will and testament. She left nothing to W. R. Smith-wick. G. B. Oliver became administrator of her estate. W. R. Smithwick brought a suit against the bank, claiming the money deposited in the bank as held in trust for him. Oliver, as administrator, was made a defendant.
. The court, after hearing the evidence, dismissed the complaint for want of equity; and plaintiff appealed.
The money received by the widow in the division of the estate of her husband was her absolute property. Her frequent declarations that it was the appellant’s money did not convert it into a trust fund. They manifested an intention to give the same to appellant at some time. But they were not based on any consideration, and were not binding on her. Intention without acts is of no effect.
Decree affirmed.
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Wood, J.,
(after stating the facts). The court did not err in refusing the prayer and in rendering judgment in favor of appellee for costs. The parol testimony did not contradict or alter the terms of the written contract. It only tended to prove who were on the payrolls of the assured engaged in the special work or occupation named in the schedule. Those engaged in these special occupations enumerated in the schedule were covered by the policy. None others were. The amount of the premiums to be paid had to be determined by the amount of the payrolls to employees engaged in the special occupations named in the schedule. The evidence showed that during the time the policy insured both appellee and the Little Rock & Monroe Railway Company appellee carried all the accounts for “logging operations,” and “logging railroad” on its own payroll, and that the Little Rock & Monroe Railway Company was not a “logging railroad” or engaged in “logging operations.” Nor is it anywhere shown that the employees of the Little Rock & Monroe Railway Company, during the time it was insured, were engaged in any of the special occupations named in the schedule. Therefore the payroll of the Little Rock & Monroe Railway Company could not be included in ascertaining the amount of the premium to be paid. Nor could the amounts paid the employees of appellee in their hotel business nor the amounts paid by appellee in salaries to its executive officers. For none of these are named in the schedule, and they are therefore not covered by the policy.
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Affirm.
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Battle J.
Anderson Green sued the Little Rock Railway & Electric Company for $10,000 damages, alleging in his complaint “that on the fourth day of August, 1903, while traveling in a' wagon drawn by two mules along North Cumberland Street and crossing East Markham Street, going south, he was negligently run into by one of the defendant’s cars, said car striking the rear wheel of his wagon and breaking it and throwing plaintiff to the ground with such force as to break two ribs on his right side and bruise and injure him internally. That he was unable to do any work which required him to stoop over, had suffered great pain of body and mind, and was permanently injured, and was put to expense in endeavoring to cure himself, towit: $55 doctor’s bills and hospital fees, and other expenses for nursing to the amount of $45, and loss of business six weeks, $150.
“The answer denied the material allegations of the complaint, and alleged that, if the defendant had been injured in a collision with one of its cars, it was due to his own carelessness and negligence in driving his team across the track in front of an approaching car,'without exercising, reasonable care and prudence to protect himself.”
Plaintiff recovered a judgment against the defendant for $500, the jury that tried the issues in the case having returned a verdict for that amount.
Plaintiff was injured, as alleged, while traveling in a wagon, drawn by two mules, along North Cumberland Street, and crossing East Markham Street, going south, in the city of Little Rock, by a collision with one of defendant’s cars. Earnest Harper was allowed to testify, over the defendant’s objections, “that he had seen the cars operated by the defendant on the various streets of the city of Little Rock, and that he had a general knowledge of the speed at which they usually ran; that the car which collided with the plaintiff’s wagon was at the time running at the usual rate of speed that cars ran along East Markham Street; and that the3>- ran at a pretty good rate of speed on East .Markham between Scott and Cumberland streets, as it is down grade.” We see no prejudicial error in allowing the witness to testify as he did. His knowledge of the speed at which cars of the defendant usually run on the streets of Little Rock could not have been of any effect, as he did not state the rate of speed. He stated that the car that struck plaintiff’s wagon was running at the usual rate of speed cars travel along the street where the collision occurred, and that was a pretty good rate, as it is down grade there. The evidence was competent. It was admissible, in connection with .other facts, for the purpose of showing whether the defendant used proper care to avoid the collision. It (the.defendant) could have shown the rate of speed at which the car was moving, and did, by one witness, to be nine miles an hour.
The defendant asked the court to instruct the jury as follows :
“You are instructed that the street car has, and from the necessities of the case must have, a right of way upon that portion of the street upon which alone it can travel, paramount to that of ordinary vehicles; but this superior right of way does not prevent others from driving along or across its tracks at any place or at any time when by so doing they will not interfere with the progress of the cars.
. “If the employees of a street railway company in charge of its car see a person driving upon the street along by the side of the car track, and in the direction from which the car is approaching, they have a right to rely on human experience, and' presume that he will act upon principles of common sense and the motive of self-preservation common to mankind in general, and will not attempt to cross the track in front of the approaching car, and may go on without checking the speed of the car until they see he is likely to go upon the track in front of the approaching car, when it would become their duty to give extra alarm by bell or gong, and, if that is not heeded, then, as a last resort, to check its speed, or stop the car, if possible, in time to avoid the accident.”
The court struck out the first paragraph, and gave the second. No reversible error was committed by striking out the first paragraph. The second contained all the information in the instruction that was important for the jury to know.
The evidence was sufficient to sustain the verdict.
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McCulloch, J.,
(after stating the facts.) Appellee’s assertion of the right to a rescission of the contract is based upon two grounds, viz: The alleged intoxicated condition of Powers when he negotiated the contract with appellants, and the failure of appellants to disclose information as to the true value of the timber in response to the letter written them by Mr. Jackson. The latter grounds may be disposed of by saying that the letter of Jackson can not be construed as a request for information as to the value of the timber, nor as an expression of reliance upon the judgment of appellants as to the value. “I hand you a copy of the contract,” the letter stated, “and if it is all right you can notify me. I will send check on receipt of your advice that it is all. right with you.” There is nothing in this to have put appellants upon notice that they were expected to inform the writer of the value or quantity of timber bargained for. On the contrary, they had a right to presume that Jackson was relying upon the judgment of Powers, who was an experienced timber man, and was engaged in the business of making railroad ties for appellee in that locality. Nor can a warranty of the quantity of the timber be implied from the circumstances under which the bargain was negotiated and consummated. The tract of timber land was open to the inspection of either party alike, and the undisputed testimony shows that appellants had owned the land scarcely a month, had never inspected it, and had no information as to the quantity of timber except that there were about 33 acres of the tract cleared and in cultivation. The parties were dealing with ea'ch other upon equal footing, and mere inadequacy of the consideration, however gross, will not avoid the contract.
The controlling principles as to the right to rescind a contract because of intoxication are fully stated by this court in the case of Taylor v. Purcell, 60 Ark. 606. “It is only when one is so. completely intoxicated as to be incapable of knowing what he is doing,” said the court, “or of understanding the consequences of his acts, that his contracts, entered into while in that state, are thereby rendered void. 2 Kent, Com. 451; Gore v. Gibson, 13 Mees. & W. 623; Bates v. Ball, 72 Ill. 108; Schramm v. O’Conner, 98 Ill. 541; Johns v. Fritchey, 39 Md. 258. Where the defense is that the contract or note was procured through fraud, the court or jury trying the case may take into consideration, along with the other surrounding circumstances, the condition of the contracting parties at the time of making the contract, whether either of them was to any extent under the influence of intoxicating drink, in order to determine whether the contract was procured through fraud or not. But, in the absence of fraud, the intoxication to invalidate a contract must be such as to temporarily dethrone reason and judgment.”
The case in which this doctrine is announced was an action at law to recover upon a contract where the defendant pleaded intoxication as a defense, but no different rule prevails in equity where suit is brought to rescind the contract. 14 Cyc. p. 1106; 2 Pom. Eq. Jur. § 949; 1 Story, Eq. Jur. § 231; Rodman v. Zilley, 1 N. J. E. 320; Maxwell v. Pittenger, 3 N. J. E. 156; Keough v. Foreman, 33 La. Ann. 1434; Caulkins v. Fry, 35 Conn. 170; Cavender v. Waddingham, 5 Mo. App. 457.
Judge Story states the rule thus: “But, to set aside any act or contract on account of drunkenness, it is not sufficient that the party is under undue excitement from liquor. It must rise to that degree which may be called excessive drunkenness, where the party is utterly deprived of the use of his reason and understanding; for in such a case there can, in no just sense, be said to be a serious and deliberate consent on his part, and without this no contract or other act can or ought to be binding by the law of nature. If there be not that degree of excessive drunkenness,' then courts of equity will not interfere at all unless there has been some contrivance or management to draw the party into drink, or some unfair advantage taken of his intoxication to obtain an unreasonable bargain or benefit from him.” 1 Story, Eq. Jur. § 231.
The evidence in this case does not establish intoxication on the part of Powers to the extent that he was incapable of knowing what he was doing or of understanding the consequences of his acts. At most, it shows only that he was under the influence of liquor to such extent as to materially affect his judgment.
It is true, Powers says in his deposition, “I could not have known what I was doingbut he does proceed to relate many of the details of the negotiations between himself and Cook, as well as some of the incidents of the meeting in the office of the attorney in Wynne when the contract was prepared, and he states that Cook first proposed to accept $2.00 per acre for the timber, which offer he (Powers) declined and offered to give $1.00 per acre. Both of the Cooks testify that he was not excessively drunk when he made the trade.
There is no proof at all that Powers’ state of intoxication was induced by appellants, or that any advantage was sought or taken of his condition except that they made a bargain with him which subsequently developed to be a disadvantageous one for the purchaser of the timber. This, however, was through no fault or connivance of appellants, so far as the testimony discloses. As we have already stated, appellant had owned the land only about a month, and had no information concerning the quantity of timber thereon. They were wholly without experience in the timber business, whilst Powers was an experienced timber man, was then engaged in working timber into ties in that locality, and appellants had reason to believe that he had recently estimated the timber on this land. It is not claimed that they made any representations to Powers or any one else concerning the quantity or quality of timber on the land — the record is utterly void of any evidence of such representation, either directly or by inference. Nor is there anything in the attitude of the parties toward each other which called for a statement from one to the other as to knowledge concerning the quantity of timber. It is clearly a case where both parties “guessed at” the quantity of timber on about 375 acres of timber land without inspecting it, and the party who was worsted in the bargain is without remedy for relief against its hárdship. Doubtless, Mr. Jackson was under the belief that Powers had inspected and estimated the timber, and relied upon his (Powers’) judgment as to its quantity and value, but that is his misfortune. Appellants were without fault, so far as the proof discloses, and they can not be held responsible because Powers failed in his duty, nor can their bargain be annulled on that account, however improvident and burdensome to appellee it may appear to be.
Opinion delivered April 30, 1906.
We are therefore of the opinion that the learned chancellor was wrong in his conclusion, and that his decree annulling the contract must be reversed, with directions to dismiss the complaint for want of equity. It is so ordered.
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Riddicic, J.,
(after stating the facts.) This is an appeal from a judgment of the circuit court holding that the right of action which accrued to plaintiff as one of the beneficiaries in a policy of insurance was cut off by the provision in the policy which limited the time for bringing the action on the policy to one year after the death of the assured. As plaintiff did not bring this action either within a year of the death of the assured or within a year of his arriving at age, it is evident that he is cut off by this provision of the policy, if it applies to this kind of an action.
But counsel for appellant contends that this is not an action on the policy, but on the bond given by the company to the State for the payment of the policies issued by the company. He contends that the principle which governs here is the same as that which applies in an action to foreclose a mortgage given for the security of a debt, where the fact that the right of action on the note or account secured is barred does not impair the remedy by foreclosing the mortgage if a longer period of limitation be applicable to the mortgage. 19 Am. & Eng. Enc. Law (2 Ed.), 177. But the facts here do not seem to us to bring this case within that rule. This is not the ordinary case of a debtor giving to a creditor security for a debt which is a lien on property. It is the case of an insurance company executing a bond to the State in compliance with the statute of the State designed to protect its policy-holders in the State by compelling the company to carry out its contracts made in this State. There was, we think, no intention of the Legislature to enlarge or extend the liability of the company.
Now, the right of action on the bond may not be affected by the limitation in the policy, but the question of whether plaintiff is entitled to recover does depend not only on the bond, but also on the form of' the policy. Although the limitation as agreed in the policy may not, strictly speaking, operate to bar the action on the bond, yet no recovery can be had unless something is due plaintiff on the policy. For, while this is an action on the bond, the right to recover, as before stated, depends on the policy also. In order to recover, the plaintiff must show, not only the execution of the bond, but that there is something due him on the policy which the company has refused to pay. But the condition in the policy that the company shall not be Hablé unless suit is brought within one year has a very different effect from that of the statute of limitations on a debt. The statute of limitations affects the remedy only. The debt still exists; and if it be secured by a mortgage which is not barred, the mortgage may be foreclosed and the debt collected, though no action could be brought on the debt itself. But, by this clause in the policy, the company owes nothing if suit be not brought within one year. After that time not only the remedy but the debt itself is gone, and there is no right to recover, for that was the condition upon which the promise to pay the amount of the policy was made. Williams v. Insurance Co., 20 Vt. 222; Gray v. Hartford Fire Ins. Co., 1 Blatchf. 280, s. c. 6 Fed. Cases, 788; 2 May on Insurance, § 482; 4 Cooley, Briefs on Ins. 3969.
In this case the company attempted in good faith to carry out its policy. It paid the amount of the policy to the mother of the plaintiff, who had been appointed his guardian, and she testified in this case that she spent the money for his benefit; but as she had executed no bond, it is doubtful if this payment to her would have protected the company, had this action been commenced in time. But it was not, and by the terms of the policy the company is no longer .liable. So far as the policy is concerned, it must now be conclusively presumed that the company owes the plaintiff nothing on its policy.
As before stated, we do not think it was the intention of this statute to enlarge the liability of the company and to permit a recovery on the bond when nothing was due on the policy. We are therefore of the opinion that the circuit court correctly held that, under the circumstances of this case, there was no liability on the bond.
Judgment affirmed.
McCueeoch, J., took no part in the decision of this case.
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Hire, C. J.
O. T. Pope ordered of A. F. Drake a carload of feedstuff, containing corn of a certain grade, among other stuff. The car arrived with bill of lading attached to draft in 'favor of Cunningham Commission Company for the price of the carload. Pope paid the draft, and received the car, and dis covered the corn was not in compliance with the order, and returned it. This suit is to recover the price of the corn, and the only question litigated was whether Drake or the Cunningham Commission Company was the responsible party.
The court instructed the' jury that if Pope ordered .the corn from Drake at a guarantied price and quality, and Drake shipped or caused to be shipped the corn which was of an inferior quality to that ordered, and Pope was compelled to pay for the corn before he had an opportunity to inspect it, then he was entitled to recover, without regard to whether said corn was shipped hy Drake or some other person from whom said Drake procured it to be shipped. This instruction was correct, and in consonance with the facts as testified to by Pope. It could make no difference whether Drake personally furnished the corn or caused another to furnish it for him in compliance with his order from Pope.
The evidence on Drake’s behalf tended to prove that he was a mere broker, and had not the corn for sale, and acted as broker in procuring it for Pope, and had no interest beyond his brokerage, and that these facts were known to Pope. Not only does his testimony tend to prove this to have been the status, but there are statements in Pope’s testimony corroborative of this theory, and the draft in favor of the Cunningham Commission Company, attached to the bill of lading, was a circumstance of more or less probative force on the same side of the controversy. Thus an issue of fact was squarely presented. The instruction referred to and instructions 1, 4 and 5 given at instance of appellant (all of which will be set out by the Reporter) correctly presented the requisite facts to be found for Pope to recover, and Pope’s evidence sustained this view, and the jury accepted it as true. On the other hand, Drake was entitled to have submitted to the jury his theory of a sale as broker, and he had ample evidence to have gone to the jury and to have sustained a verdict, if it had bisen accredited by the jury. It is well established that a broker can not be held personally liable to the third party upon a contract for a disclosed principal; and if the third party knew, or had suffi-» dent knowledge to create an inference, that the broker was acting for another j then the broker is not liable. But if he does not disclose his principal nor the fact that he is acting as a broker, but deals personally, then he is liable, although in fact he acted as broker, and his principal may be held after disclosure, but this does not prevent his personal liability if the third party elects to hold him instead of his after-disclosed principal. 2 Clark & Skyles on Agency, § 786; Shelby v. Burrow, 76 Ark. 558.
No instructions were given presenting the appellant’s contention, and the case seems to have been tried solely on whether appellee’s contention was the truth, and, the jury having found that it was true, the question before the court is limited to whether the court erred in the instructions given or in refusing those offered by appellant. As before stated, the court finds those given to be correct. The Reporter will set out the two refused instructions, Nos. 2 and 3. † They assume that if Drake caused another to fulfill the order which was made to him, it released him; and if Pope paid the draft of the other party (Cunningham Commission Company), that of itself released Drake and substituted the commission company as the contracting party. Such is not the case. If in fact the order was a personal one, and not one to be filled according to broker’s custom, then it was perfectly within Drake’s right to have another fill it for him, and no significance is to be attached to Pope paying the draft to the commission company. It was no concern of his who was to receive the money, so long as he got the goods he ordered. The draft was attached to the bill of lading. Each was a negotiable instrument, and may have been sold many times before reaching Pope, and his payment of the draft in order to obtain the title and possession of the goods ordered was a common business transaction, carrying in itself no change in the status of the” parties originally contracting. It may have been a circumstance shedding light on which was the real contract between the parties, but these instructions ask nothing in that regard, and are not of themselves correct statements, and hence there was no error in refusing them.
The appellant elected to try the case on the truth of appellee’s contention, and did not seek to have the theory of the brokerage contract and disclosed principal presented, and the finding of the jury against it is conclusive.
Judgment affirmed.
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Battle, J.
James ’B. Swing, as trustee for the creditors and policy holders of the Union Mutual Insurance Company, of Cincinnati, Ohio, in a complaint in an action against the St. Louis Refrigerator & Wooden Gutter Company alleged that the Supreme Court of Ohio, on December 18, 1890, disincorporated said insurance company, and afterwards appointed plaintiff the trustee for the creditors and policy holders of the insurance company, and he accepted the trust and qualified, and is acting as such trustee; that said insurance company was a mutual company, and was incorporated under the laws of Ohio on May 27, 1887; that section 3650 of the Revised Statutes of Ohio provides that “every person who effects insurance in a mutual company, and continues to be insured, and his heirs, executors, administrators and assigns, shall thereby become members of the company during the period of insurance, and shall be bound to pay for losses and such necessary expenses as accrue in and to the company in proportion to the original amount of his deposit note.” Said Mutual Insurance Company was doing business during the years 1889 and 1890. That the defendant accepted from the insurance company a policy of insurance on its property against loss by fire; that said policy was for $4,000, and was in force -from May 1, 1889, to May 1, 1890, the annual premium on it being $96; that the contingent liability to assessment of the defendant, under the by-laws of the company and the statutes of Ohio and the decree hereinafter mentioned, was and is five times the annual premium, towit, $480; that by accepting and holding the policy the defendant effected insurance in the insurance company during the time and in the amount aforesaid, and became a member of the same, and is legally and equitably liable for its just proportion of all unpaid losses and expenses incurred by the insurance company during the life of the policy and to pay such percentage on the amount of the contingent liability to assessment on the policy. That the Supreme Court of Ohio, on the nth day of June, 1901, assessed the rate of liability of the members and stockholders of the insurance company for the unpaid losses and expenses of the company; that plaintiff, on or about the 6th day of September, 1901, notified the defendant to pay said assessment, but it refused to do so, and is indebted to him as such trustee, on the assessment, in the sum of $116.77, with six per cent, per annum interest thereon from 6th of September, 1901.
The defendant, the St. Louis Refrigerator & Wooden Gutter Company, answered and denied that the Supreme Court of Ohio disincorporated the insurance company and appointed plaintiff trustee as alleged, and made and entered a decree of assessment; and alleged that the Supreme Court of Ohio was without jurisdiction to appoint plaintiff trustee for the purposes alleged in the complaint; and pleaded the statute of limitation in bar of plaintiff’s right to maintain this action.
In the trial of this action the following was shown to be a statute of Ohio: “Every person who effects insurance in a mutual .company, and continues to be insured, and his heirs, executors, administrators and assigns, shall thereby become members of the company during the period of insurance, shall be bound to pay for losses and such necessary expenses as accrue in and to the company in proportion to the original amount of his deposit note or contingent liability; and the directors shall, as often as they deem necessary, settle and determine the sum to be paid by the several members thereof, and publish the same in such manner as they may choose, or as the by-laws prescribe, and the sum to be paid by each member shall always be in proportion to the original amount of such liability, and shall be paid to the officers of the company within thirty days next after the publication of such notice,” etc.
The issuance of the policy, the date,g the amount, the premium and the time it was in force were shown to be as alleged in the complaint.
What was said to be the judgment of the Supreme Court of Ohio, without any pleadings or other proceedings, was read as evidence.
The defendant recovered judgment, and plaintiff appealed.
The appellee having denied that the Supreme Court of Ohio had jurisdiction to appoint appellant trustee, the duty and the burden devolved upon him to show jurisdiction. He failed to do so. He produced what he called the judgment of the court appointing him trustee, but did not prove such pleadings and proceedings as authorized or empowered the court to render the judgment. “It is essential,” says Mr. Freeman, “that the jurisdiction of a court over a subject-matter be called into action by some party and in some mode recognized by law. A court does not have power to render judgment in favor of one as plaintiff if he has never commenced any action or proceeding calling for any action, nor has it, as a general rule, power to give judgment respecting a matter not submitted to it for decision, though such judgment is pronounced in an action involving other matters which have been submitted to it for decision, and over which it has jurisdiction. A petition or complaint must be filed in the court whose action is sought, or otherwise presented for its consideration in some mode sanctioned by law.” 1 Freeman on Judgments, § 120, and cases cited.
Many illustrations might be given of this rule. A few will suffice. “The circuit courts of this State have jurisdiction to enforce the collection of debts according to an established procedure. A holds the bond of B for one thousand dollars, due and unpaid. Fie goes into a circuit court with the bond in his hand, and without writ issued or any pleadings, asks the court to award a rule against B to show cause why judgment should not be rendered against him for the debt and interest. The rule is accordingly awarded, executed, and returned, and judgment thereupon rendered for the debt, interest and costs. Such a judgment would be void, notwithstanding the court has jurisdiction of the subject and of the parties. Why void? Because, in the language of Mr. Justice Field, ‘the court is not authorized to exert its power in that wa¿y.’ The same would be true if A should sue' B on one bond, and in the same action decline to take judgment on the bond sued on, and take judgment on another bond of B, on which no suit had been instituted, without the consent of B.” Anthony v. Casey, 5 Am. State Rep. 279; Seamster v. Blackstock, 83 Va. 232; Munday v. Vail, 34 N. J. L. 422.
Appellant was therefore without authority to bring or maintain this action.
Appellee having pleaded the statute of limitation, the burden devolved upon the appellant to prove that this action was brought within the time prescribed by the statute. Taylor v. Spear, 6 Ark. 382; McNeil v. Garland, 27 Ark. 343; Carroll v. Clark, 21 Ark. 500; Railway v. Shoecraft, 53 Ark. 96; Leigh v. Evans, 64 Ark. 26. The policy and membership of appellee in the insurance company expired on the first of May, 1890. The insurance company was disincorporated on the 18th day of December, 1890, by the Supreme Court of Ohio. Its directors, during its life, were authorized by the laws of Ohio to apportion its losses and expenses among its members, and to give notice of such apportionment; and thirty days were allowed in which to pay the amount so apportioned. This could have been done and the statute set in motion before the company was disincorporated. It was therefore necessary for appellant to prove that it was not done, in order to show that his action was not barred. The proceedings of the Supreme Court of Ohio alone were not sufficient to show that the action was brought within the time prescribed by the statute, because the statute of limitation might in the manner indicated have been set in motion before such proceedings were instituted.
The evidence fails to show that this action was brought within the time prescribed by the statute of limitation.
J udgment ■ hffirmed.
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Wood, J.
The only grounds of the motion for new trial insisted upon here relate to the alleged error of the court in permitting a certain deed to be introduced as evidence. Appellant offers various reasons why this deed was not competent, none of which were tenable. The first is that under a plea of payment evidence of accord and. satisfaction is not admissible. But there were no written pleadings, and appellee’s oral plea was no more a plea of payment than it was a plea of accord and- satisfaction. His plea was “payment of the debt, and denying that he owes the debt.” That was no formal plea of payment, and under the oral plea of nil debet, which appellant did not object to, appellee could introduce any proof to show that he did not owe the debt. The evidence showed that appellee claimed that he paid the note by delivering to appellant a deed to a certain tract of land, and that appellant had accepted this deed in payment of his 'debt. The question presented to the jury was whether or not appellee had delivered, and appellant had accepted, a certain deed to certain land in settlement of the note sued on. The question was not, as appellant contends, whether the deed for various reasons, as assigned by appellant, was sufficient in law to transfer the title to the land. The. jury on the question of fact.has decided in favor of appellee, and there was evidence sufficient here to support the verdict.
Affirm.
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McCulloch, J.
This is an action brought by appellee, Lena Swallows, alias Lena Stone, against the railway company to recover damages in the loss of her trunk, which was shipped as baggage over appellant’s road. She purchased a ticket from Haileyville, Indian Territory, on the Choctaw, Oklahoma & Gulf Railroad, to Pine Bluff, Arkansas, on appellant’s line of road, and her trunk was checked through. The trunk was checked after she left Haileyville, and by an acquaintance the check was sent to her by mail at Pine Bluff, and she exhibited it at the trial of the case. The trunk, it appears, failed to reach Pine Bluff while she was in that city, and she failed to get it there, though she demanded it. She returned to Haileyville without her trunk, and subsequently went to Mansfield, Arkansas, and has never received it, so she testified. She went to Pine Bluff with a man named Stone, and assumed the name of Stone, instead of her true name, Swallows, and passed as Mrs. Stone. They stopped in the same boarding-house there.
Appellant’s baggage clerk at Pine Bluff testified that he shipped the trunk back to Haileyville on the same check, via appellant’s road to Little Rock, and thence over the Choctaw, Oklahoma & Gulf Railroad to Haileyville. “The defendant then offered to prove by this witness,” copying literally from the record, “that, four or five different times before the arrival of the trunk in controversy in Pine Bluff, one E. S. Stone called on him, asking for the plaintiff’s trunk, presenting at one of the times C. O. & G. check from Haileyville to Pine Bluff No. 98013 [which was the description of the check held by plaintiff and exhibited at the trial]; that the last time he called, which was about the 4th or 5th of April, 1903, he exhibited to witness a .etter purporting to have been written by the plaintiff, represent ing to witness that the plaintiff was his wife; and that in said letter the plaintiff requested that her trunk be returned from Pine Bluff to Haileyville as soon as it arrived at Pine Bluff; that the trunk was described in the letter as bearing check No. 98013; that, pursuant to the directions so given by Stone and said letter, witness sent said trunk back to Haileyville as soon as it arrived at Pine Bluff.” The court refused to admit this testimony, on the ground that the agency or authority of Stone had not been shown. This testimony was competent, and should have been admitted. The plaintiff denied that she ordered the trunk returned to Haileyville, or that she authorized Stone to direct its return. She also denied that she had entrusted the check to Stone. It is undisputed, so far as the testimony in the record shows, that the trunk finally arrived at Pine Bluff, and was returned to Haileyville. If the plaintiff directed its return, and it reached Haileyville safely over the connecting carrier’s line (which was undisputed), and the plaintiff accepted it then, or caused it to be rechecked to Mansfield (as there was testimony tending to show), then the defendant was not liable, even though the trunk was subsequently lost after it left Haileyville the second time.' It was therefore important to’ determine whether or not the plaintiff authorized Stone to have the trunk sent back to Haileyville. It is undisputed that he did direct its return, and that it was returned according to his directions. It is well settled that the agency and authority of an alleged agent can not be proved by his own declarations. Carter v. Burnham, 31 Ark. 212; Holland v. Rogers, 33 Ark. 251; Chrisman v. Carney, 33 Ark. 316, Howcott v. Kilbourn, 55 Ark. 213; Turner v. Huff, 46 Ark. 222.
But the intimate relations between plaintiff and Stone while they were in Pine Bluff, passing themselves off before the public as husband and wife (proof of which was admitted by the court), and his possession of the check a few days before he appeared with a letter purporting to be from plaintiff, ordering the trunk sent back to Haileyville, were circumstances tending, with more or less force, to establish his authority from plaintiff to direct the return of the trunk. The jury should have been permitted to consider them, along with plaintiff’s denial that she ever parted from the check or authorized Stone to direct the return of the trunk, in determining whether the return of the trunk was ever directed by authority from plaintiff.
Possession of a baggage check is prima facie evidence of ownership or authority to receive the baggage. Illinois Cent. R. Co. v. Copeland, 24 Ill. 332; Hickox v. Naugatuck R. Co., 31 Conn. 284; Isaacson v. N. Y. Cent. R. Co., 94 N. Y. 278; Denver R. Co. v. Roberts, 6 Col. 333. This is necessarily true from the nature of the business of a carrier of passengers and baggage. The identity of the passenger is unknown to the agents of the carrier at the destination, and the only evidence of the right to receive the baggage is the possession of the check. Learned counsel for appellee urge that this would open the door for fraud by allowing a person to present a bogus check for baggage and receive it from the possession of the carrier, and thus deprive the true owner of his property. It is sufficient to say that the carrier is not permitted to surrender the baggage upon zt bogus or forged check. The carrier must, at its peril, see that the check presented is genuine, and is the check issued for the piece of baggage claimed. So in this case it was for the jury to say whether, in the face of plaintiff’s denial that she intrusted the check to Stone, it was in fact the genuine check which he exhibited to the baggage clerk at Pine Bluff; and Stone’s recent possession of the check (if the jury believed that he had it), together with the other circumstances proved in the case as to the relation between plaintiff and Stone, should have gone to the jury to enable them to determine whether the return of the trunk to Haileyville was directed by authority from plaintiff.
For the error in excluding the testimony offered by the defendant, the judgment must be reversed.
The judgment must also be reversed for another reason. It is not supported by the evidence.
As we have already stated, it is undisputed that the trunk was returned to Haileyville and received at the latter place, and was from that place rechecked and forwarded to Mansfield, Arkansas, by a man at Plaileyville named Brown. Brown testified that, by direction of plaintiff, he caused the trunk to be rechecked to Mansfield, leaving the old check on the trunk and placing an additional one on it, and that he turned the new check over’ to one Malloy to be forwarded to plaintiff. She admits that Malloy sent the check to her at Mansfield, and she exhibited that check also at the trial, but she denied that she instructed Brown to recheck the trunk. She said, however, on the witness stand: “I told Mr. Brown if I stopped in Mansfield I would write him; if my trunk came back, he could send it to me. I would let him know if I stopped there.” Now, whether she authorized Brown to recheck the trunk to Mansfield or not, if she accepted the check after he had done so, she thereby ratified his act in so doing. Rechecking the trunk at Haileyville was an acceptance of it there, and relieved appellant from any further duty or liability concerning it. So, upon these facts, about which there is no dispute, the defendant was not liable. Of course, if Brown did not in fact recheck the trunk, as he pretends to have done, but instead thereof, by fraudulent conspiracy with the baggage agent at Haileyville or some other person, as suggested, by learned counsel in their brief, he made some other disposition of the trunk, then the acceptance of the check by plaintiff was not a ratification of Brown’s wrongful act, and the defendant would not be relieved. The acceptance of the check operated only as a ratification'of Brown’s act in rechecking the trunk to Mansfield, as indicated on the face of the check, and nothing more.
The defendant asked for an instruction to the effect that an acceptance by plaintiff from Brown of the check from Haileyville to Mansfield was a ratification of Brown’s act in rechecking the trunk, and relieved the defendant from further liability, but the court modified it by inserting the qualification “that if she knew those facts when she accepted the check.” The modification was unnecessary and improper, for the reason that the check disclosed on its face the fact that the trunk had been rechecked to Mansfield, and plaintiff was bound to know it when she accepted the check.
Still we fail to see how any prejudice could have resulted from the instruction. The fault is not so much with the instruction as with the fact that the jury disregarded it, and returned a verdict for the plaintiff contrary to the undisputed evidence.
Reversed and remanded for a new trial.
Wood, J., concurs in the judgment.
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McCulloch, J.,
(after stating the facts.) Error of the court is assigned in its refusal to give to the'jury the sixth instruction asked by appellant, which is as follows:
“If you find from the testimony that the crossing at which deceased received his injuries was so dangerous that it was necessary for the safety of travelers on the street for the railroad company to keep gates at said crossing, you are instructed that a failure to keep gates at such crossing was negligence. And if you find from the evidence that there were no gates at said crossing, and further find from the evidence that such failure to keep gates was the cause of James Roy Tiffin’s injury and death, or find that if there had been gates at said crossing he would not have been injured, your verdict will be for the plaintiff on both causes of action, unless the deceased was guilty of contributory negligence.”
We do not find it necessary to determine whether or not this instruction contained a correct statement of the law applicable to the case, inasmuch as we conclude that the giving of the ninth instruction asked by appellant covered the point contended for, and all prejudice was removed thereby. That instruction is as follows:
“If you find from a preponderance of the testimony that it was necessary to protect the public traveling on Newton Avenue for the defendant to keep said crossing watched and guarded, and if you find .from the preponderance of the testimony that the defendant did not exercise reasonable care to keep the crossing watched and-guarded, and you further find from a preponderance of the testimony that the injury and death of Roy Tiffin was caused by the negligence of the defendant in not exercising- reas onable care to have said crossing properly watched and guarded, you will find for the plaintiff on both causes of action, unless the deceased was guilty of negligence that contributed to his injury and death.”
We think that the above instruction fully placed before the jury the measure of the 'duty of the railway company, and that appellant was not prejudiced by the refusal to give the sixth instruction. The instruction given permitted the jury to say, from the testimony, that it was necessary, in order to protect travelers on the street from the danger of passing trains, that the company should have provided gates or other barriers or watchmen to flag trains and warn travelers, and that the failure to provide either or all of those means of protection was negligence. Therefore, no error was committed in refusing to instruct the jury specifically that the failure to provide gates amounted to negligence if gates were necessary to the protection of travelers. St. Louis, I. M. & S. Ry. Co. v. Baker, 67 Ark. 531.
It is also contended that the court erred in giving the following instruction, and others of like import, at the request of the defendant:
“5. It is the duty of a person approaching a railroad crossing to look and listen for approaching trains. This duty requires him to look in every direction from which he knew a train might approach, and continue on his guard until the danger is passed ; and when, by the due exercise of care in this respect, the danger could have been discovered and avoided, no recovery can be had. Therefore, if you find from the evidence in this case that the plaintiff’s intestate, Roy Tiffin, started and went onto the crossing without looking in the direction from which the train came after he started to go across the track, when by looking he could have seen the train approaching and avoided the injury, then he was guilty of contributory negligence, which bars a recovery, and your verdict must be for the defendant.”
It is urged that these instructions improperly declared it to have been the absolute and imperative duty of deceased to look and listen for the approach of another train before going upon the track, and that it was properly a question of fact for the determination of the jury whether under the circumstances the failure to look and listen was negligence.
It has been repeatedly held by this court that it is negligence for one approaching a railroad crossing to fail to look and listen for the approach of trains, and that only in exceptional cases is it proper to submit to the jury the question whether or not the failure to exercise such caution is negligence. L. R. & Ft. S. Ry. Co. v. Blewitt, 65 Ark. 235; St. L. & S. F. R. Co. v. Crabtree, 69 Ark. 135; St. L., I. M. & So. Ry. Co. v. Luther Hitt, 76 Ark. 224.
In none of the cases decided by this court are any of the recognized exceptions found save in St. Louis, I. M. & S. Ry. Co. v. Tomlinson, 69 Ark. 489, where it was held that a passenger or his escort attempting to pass an intervening track to reach a depot or train under circumstances which justified him in believing that he was invited by the company to pass over the track could not, as a matter of law, be declared guilty of negligence, but that it was a question for the jury, after considering all the circumstances, to say whether or not he failed to exercise ordinary care. In neither the Blewitt nor the Hitt case, supra, are there found facts which form exceptions to the general rule that the failure to look and listen for approaching trains is negligence per se, and should be so declared as a matter of law. The exceptions to the general rule usually fall within the following classes of cases (2 Wood on Railroads, pp. 1523, 1525.)
(1) Where the circumstances are such that it would have availed nothing in preventing the injury if the injured party had looked and listened. This exception is recognized in the case of Martin v. L. R. & Ft. S. Ry. Co., 62 Ark. 156, where it is said that “it is only when it appears from the evidence that he might have seen had he looked, or might have heard had he listened, that his failure to look and listen will necessarily constitute negligence.”
(2) Where the circumstances were so unusual that the injured party could not reasonably have expected the approach of a train at the time he went upon the track. French v. Taunton Branch Rd., 116 Mass. 537; McGhee v. White, 66 Fed. 502; Bonnell v. D., L. & W. R. R. Co., 39 N. J. L. 189.
(3) Where the injured jperson was a passenger or escort going to or.alighting from a train, and hence under an implied invitation and assurance by the company that he could cross the track in safety. Railway Co. v. Johnson, 59 Ark. 122; St. Louis, I. M. & S. Ry. Co. v. Tomlinson, supra; Wheelock v. Boston, etc., Ry. Co., 105 Mass. 203.
(4) Where the direct act of some agent of the company had put the person off his guard, and induced him to cross the track without precaution. 3 Elliott on Railroads, § 1171; 2 Wood on Railroads, p. 1546; Chicago & N. W. Ry. Co. v. Prescott, 59 Fed. 237; Eddy v. Powell, 49 Fed. 814; Merrigan v. B. & A. Rd. 154 Mass. 189; Directors, etc. v. Wanless, L. R. 7 Eng. & Irish App. 12; Cleveland, C. C. & St. L. Ry. Co. v. Keely, 138 Ind. 600; Abbett v. C., M. & St. P. Ry. Co., 30 Minn 482.
The facts of this case do not bring it within either of the exceptions stated. Deceased did not go upon the track by invitation of the company; he was not misled by any act of the servants of the company, nor were the circumstances so unusual that he could not have reasonably expected another train to pass the crossing at that time. On the contrary, the uncontradicted proof showed that trains were constantly passing that point. The witnesses for plaintiff testified that trains passed there at all hours of the day so frequently that it was difficult for travelers to find an opportunity to cross the tracks. It was contended by the plaintiff that it was an extraordinarily dangerous place on that account. The jury were justified in finding that, as soon as the train on the main track passed the crossing, deceased, without looking or listening for another train, attempted to cross the switch track and was struck down. If he did this, he was guilty of contributory negligence, ’and there can be no recovery. This brings it squarely within the decision of this court in Martin v. Little Rock & F. S. Ry. Co., 62 Ark. 156, holding that such an act was negligence.
Learned counsel insists that deceased might have been lulled. into a feeling of security by the fact that a flagman was usually stationed at the crossing to warn travelers of approaching trains, and that under those circumstances it should have been left to the jury to say whether or not ordinary care required him to use his senses in discovering the approach of the train. We do not think so. It might have been different if he and the flagman had been standing in plain view of each other, so that he could reasonably expect warning from the latter of an approaching train. He could then have assumed that no train approached because no warning was given. But such is not the state of the case. He and the flagman were not in view of each other, and he was not misled by the inaction of the latter. He was about to occupy a position fraught with unusual danger, and it was his imperative duty to make use of his senses to discover the peril and avoid it.
Deceased was a lad of unusual degree of intelligence for his years, and the court, in its instructions, treated him as having full measure of discretion attributable to an adult. No objections to the instructions were made on this score, and appellant acquiesced in this treatment of the question of the care exercised by deceased. No instruction was asked that the jury might consider his age in determining the degree of care exercised in crossing the track. We are therefore not at liberty to discuss the propriety of such an instruction, and what its effect might have been.
We are of the opinion that the case was fairly submitted to. the jury upon the issues involved, and that the evidence was sufficient to support the verdict.
The evidence discloses a most distressing injury, but the jury have said by their verdict, upon proper instructions, either that the servants of the company were guiltless-of any negligent act, or that the deceased was guilty of negligence which caused or contributed to the injury; and it would be an invasion of the province of the jury for us to disturb the verdict.
The court refused to permit appellant to ask E. O. Manees whether or not the crossing was dangerous, and refused to permit her to ask Kilfoy, the flagman, how many men had been killed there since he had commenced working there. This is assigned as error. Neither of these questions were proper. Both of these witnesses, as well as others, testified in detail concerning the crossing, its situation, the number and frequency of trains passing, etc. It was not competent for the former to state his opinion as to the dangerous character of the crossing. The subject did not call for expert testimony, but was one from which the jury were properly left to draw their own conclusions. Railway Co. v. Yarborough, 56 Ark. 612.
Nor was it competent to show-how many persons had been killed at the crossing. The injuries sought to be proved by the witnesses may have been caused by negligence of the servants of the company or by the negligence of the persons injured, and the testimony did not tend to establish the dangerous character of the situation.
Judgment affirmed.
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Battle, J.
This action was instituted by Kaufman & Wilson against Lem Briggs, constable, and Kelley & Clement, before a justice of the peace," to recover possession of certain personal property, alleged in the affidavit filed by plaintiffs to be of the value of $300. Jt was dismissed as to Kelley & Clement, and J. L. Kelley was made a defendant. ’ On a trial before the justice of the peace, plaintiffs recovered judgment, and the defendants appealed to the circuit court. In the circuit court the defendants moved to dismiss the action because the justice of the peace had no jurisdiction, the property in controversy being worth more than $300. The motion was overruled. In the trial which followed the evidence adduced proved that the property was of a value exceeding $300. Thereupon the defendants again moved to dismiss the action because the justice of the peace did not have jurisdiction, and the motion was overruled. The jury returned a verdict in favor of the defendants, and found the value of the property to be $325.
The Constitution of this State provides that justices of the peace shall have “concurrent jurisdiction in suits for the recovery of personal property where the value of the property does not exceed the sum of three hundred dollars.” Art. 7. § 40. The value which determines the jurisdiction is the real value, and not the alleged value of the property. That having been shown in this case to exceed $300, the justice of the peace had no jurisdiction, and the circuit court acquired none by appeal. The motion should have been sustained. Davenport v. Burke, 91 Mass. 116, and cases cited: Sackett v. Kellogg, 2 Cush. 91; Corbell v. Childers, 17 Oreg. 528; Vogel v. People, 37 Ill. App. 388; Darling v. Conklin, 42 Wis. 478; Chilson v. Jennison, 60 Mich. 235; Sandford v. Scott, 3 Conn. 244; Small v. Swain, 1 Me. 133.
The judgment of the circuit court is reversed, and the action is dismissed for want of jurisdiction.
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McCueeoch, J.
This was a suit in equity brought by Mary C. Dixon against A. G. Rucker, E. E. Rucker, A. H. Gress and Lizzie Phillips to cancel and remove, as a cloud upon the plaintiff’s title to a quarter section of land in Mississippi County, a donation deed executed by the State Eand Commissioner to one Crabtree, under whom the defendants claim title by mesne conveyances. The forfeiture for taxes upon which the State’s donation deed is based is alleged to be void for the reasons set forth in the complaint. The defendants filed separate answers pleading adverse occupancy of the land under the donation deed to Crabtree for more than two years next before the commencement of the suit. It is conceded that the forfeiture for taxes was void. The chancellor, upon proof and agreement between counsel as to the facts, found that defendants had held actual possession of a part of the land under the donation deed for more than two years before the commencement of the suit, and dismissed the complaint as to such part of the land so held, but rendered a decree awarding to plaintiff the portion of the land not in actual occupancy.
The case is controlled by the case of Sparks v. Farish, 71 Ark. 117, which was decided by this court since the decree below. See also Boynton v. Ashabranner, 75 Ark. 514. It was there held that actual possession of part of a tract under- a donation deed describing the whole carried the constructive possession to the limits of the boundary described in the deed, so as to sustain a plea of adverse possession of the whole tract.
The decree is therefore reversed, and the cause remanded with directions to dismiss the complaint for want of equity.
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Hill, C. J.
Saunders owned a large and fertile farm on Terre Noir Crqek in Clark County. Approximately speaking, the railroad track ran north and south, crossing Terre Noir at right angles. The general course of this stream was west to east. The distance between the foothills of the Terre Noir valley was 8400 feet, according to Saunders’ evidence, and 6500 feet according to the railroad’s evidence. The difference is immaterial, and only affects the percentage of the openings in the railroad embankment. There is practically no conflict of evidence as to the extent of the openings, and, averaging the estimates given, it may be assumed that 13 per cent, of the length of the embankment, or dump, as it is called, was open space for the passage of water. The dump was four to five feet high. Terre Noir was a very tortuous stream, and it was a neighborhood saying that it overflowed every time it thundered. The railroad was constructed in 1873. In 1882 the high water washed away the roadbed in the bottoms of Terre Noir, and in 1892 water ran over the dump in 18 places, and in 1902 the water came up almost up to the track. The dump had been raised some 18 inches since the 1882 overflow. There was some evidence that the 1882 overflow was the highest, and some that the 1902 was the highest.
Saunders sued the railroad, alleging injury to his crops in 1902 by reason of the unskillful and negligent construction of the railroad dump, in that it was so high' that it obstructed and retarded the passage of water in times of overflow, and in not leaving sufficient openings in the dump to let the water in times of overflow pass off and flow as it naturally would do but for such obstruction and insufficient openings. The action was not for causing the overflow, but for hindering the natural drainage in time of' overflow. Saunders recovered a verdict for $1,500, and the railroad appealed.
The principal contention of the appellee is that the verdict is contrary to the evidence, and was not sustained by the facts.
That this creek was subject to overflow as far back as the memory of man runneth is plain from the evidence; that «much destruction was wrought by it before the railroad was built is established; and that since the railroad was built frequently there has been much destruction of crops, both above and below the railroad dump, is fully proved. But the appellee has established by an overwhelming weight of evidence that in times of overflow the water is from 18 inches to 2 feet higher on the upper than the lower side of the dump. While some of this testimony must be discounted, for the difficulty of making such estimates with the eye, yet in one overflow a witness put it to the test of the level, and found it 12 inches higher at one place and 15 inches at another. The effect of this damming the water was to cause it to stay on the Saunders farm several days longer than it otherwise would, and change the character of the water from running water to back or eddy water with no apparent current. Farmers experienced in observing overflows testify that still water causes more damage than running water.
An engineer of appellant company testified that the difference in the height of the water on the two sides of the dump was only two inches; but his only data to base his calculations upon were the watermarks on the trees. It was also shown by this witness that the open space in the dump was about 1000 feet more than the experience of this road in North Arkansas, where the streams run more rapid, demonstrated was necessary to carry off the water. Whatever may have been the experience with watercourses elsewhere, there can be no doubt that in'times of overflow the water on the upper side of this dump stood from one to two feet higher than on the lower side; and this fact was sufficient evidence to go to the jury on the issue as to whethei the roadbed was negligently constructed, in that it did not allow sufficient space for the drainage of the natural flow of the water. The company, from having its roadbed washed away in 1882 and having the water running over it in 1892, was fully informed of the volume of water to be naturally expected to be carried by this creek which “overflowed whenever it thundered.”
It is contended that the undisputed evidence shows that the creek overflowed in the same manner before the construction of the road. That there were disastrous overflows before the road was built, there can be no doubt, but that does not establish the fact that the dump had nothing to do with the damage to .appellee’s crop. There was abundant evidence tending to prove that the dump causes the water to stay longer and retard its flow and force it back onto the farm, instead of draining off naturally.
The appellant contends that the rainfall in June and July, 1902, was extraordinary and unprecedented, and it is not responsible for failing to provide against it.
The evidence fails to sustain this contention. The evidence of the rainfall at nearby towns was introduced, and also of witnesses that the season was extremely wet; but other evidence tended to show higher overflows at other times. The history of this creek and its treatment of appellant’s roadbed was sufficient to bring the everflow in question within the things reasonably to be expected in constructing a dump across the valley.
Questions are raised as to the instructions, and the court has gone over them carefully, and fails to find error in them. The court gave 11 instructions requested by appellant, and these instructions fairly presented every phase of the law which the appellant was entitled to have submitted to the jury. Four instructions were refused. So much of them as appellant was entitled to were covered in other instructions.
The instruction on measure of damages is attacked, as is also the evidence on this issue. The instruction is in accord with Railway Company v. Yarboroughj 56 Ark. 612, where this subject is .fully discussed by Mr. Justice Mansfield. There was some evidence adduced on this subject which offended against the rule in the Yarborough-case, but it was not objected to, and there was sufficient evidence within the rule to support the verdict.
The unsatisfactory part of the case is the difficulty of determining what damage was caused by the overflow for which the railroad was not responsible and what was caused by the detention and backing of the waters for which the railroad was responsible. There is evidence on this point, and a jury from the body of Clark County, which would naturally be composed largely of farmers, is a much better tribunal to determine this question than any other.
If the jury were authorized to find the railroad responsible for all the injury to the crops, there was evidence which would have sustained a verdict of $3,500 or more. The jury were fully instructed on-this point in instructions prepared by the appellant, and from the fact that their verdict is only $1,500 the court must infer that they have carefully eliminated all injury not the result of this obstruction. Certainly, their verdict is' not without evidence to support it, and that is as far as this court can consider it.
Judgment affirmed.
Mr. Justice BatteE dissents.
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Hill, C. J.
Tony Reynolds, a negro, obtained from Wells & Williamson, as agents for a non-resident owner, a tract of 160 acres of land in Drew County. He was to receive deed upon payment of $560 within, five years, with interest; and was to pay $75 per annum, as rent, but such rent payments to be credited on purchase price. He paid $178.10, and cleared 40 acres, deadened some 8 or 9 acres, built various houses, cribs and barns, and fencing. The payments for 1899 and 1900 were made; for 1901 was not made, but on March 17, 1902, $28.10 was paid. Neither Wells & Williamson nor their client, the owner, made any effort to enforce the collection or forfeit the contract.
Reynolds and appellee, Dr. Blanks, had a certain transaction, from which arose this law suit, and it was evidenced by this indorsement on Reynold’s land contract:
“I hereby transfer to J. T. Blanks all my rights to the within lease.
“Attest: “Tony Reynords."
“E. P. Burrock,
“Wesrey Moss."
Reynolds testified that he borrowed $15 of Dr. Blanks, and made this assignment of his land contract as security therefor, and that the $15 was payable on the 10th of the ensuing December, and if paid his contract was to be returned, and if not paid then this assignment to be operative, and Dr. Blanks to own his rights under the contract. Dr. Blanks’s version is that Reynolds sold him his interest under the land contract for $13; that, as Reynolds was in default in not having fully made the annual pay ments, he doubted whether Wells & Williamson would accept the purchase price, and Reynolds was to repay by December 10th the $15 if Blanks did not get a deed, and if he did get the deed then the $15 were to be payment for Reynolds’ rights under the contract. The case turns on this issue of fact. The two witnesses to the transaction are found arrayed on opposite sides. Bullock, the white witness, sustaining the negro plaintiff, and Moss, the negro witness, sustaining the white defendant.
Bullock’s testimony is positive and unequivocal, and consistent throughout; Moss’s testimony is seriously impaired by a written statement he signed with Bullock, setting forth the facts as subsequently testified to by Bullock and Reynolds. Bullock testifies that Moss told him, after this written statement was made, and before they testified in the case, that they could make money by changing their testimony. Moss denies this, and says he did not understand the written statement. Moss’ testimony was weakened by other inconsistent statements made to disinterested parties. Dr. Blanks testified that the place needed much repair, and that the houses and fencing of little value, and that it would take $350 to put the place in good order, and then it”would be worth $1,000. The testimony of Reynolds and two disinterested witnesses fix the value of this land at $1,500 at least. Blanks -took the land contract with Reynolds’s_ assignment to Wells & Williamson, and they accepted without question the purchase price, then amounting to $588.46, which Blanks paid and received deed therefor. This suit is to set aside that deed. Proper offer of repayment, demand for deed, etc., were made, and continued in the bill. The chancellor dismissed the bill, and Reynolds appealed.
Reynolds sought to borrow $15 of several parties before he went to Blanks, and he certainly went to Blanks on a borrowing, not a selling, mission. While the attesting witnesses are evenly divided, yet Moss’ testimony is so contradicted that it has no value, and the case rests on Reynolds and Bullock on one side and Blanks on the other. Stronger than the number of witnesses is the character of their testimony. Blanks’s version of the transaction — that this negro would sell him his rights in this contract, his home and his work for several years past for $15, and then warrant that his rights were still good not withstanding his default in full payment by agreeing to repay the $15 if Blanks did not get the deed — is not consistent with common experience and observation in the daily affairs of life, and does not commend itself so strongly that it must be taken against the testimony of Reynolds and Bullock.
The circumstances of the case — Reynolds starting on a borrowing expedition, the vastly disproportionate value of the rights conveyed to the consideration received, and the written statement of both the attesting witnesses shortly thereafter — all go to sustain and corroborate Reynolds and Bullock.
The appellee appeals to the rule that oral evidence is not admissible to contradict or vary the terms of a written instrument. It is as well established as the rule itself that parol evidence is admissible to show that a deed or other conveyance absolute in terms was intended as a security for debt. The evidence to establish this must be clear and decisive, but that is a question of the quantum of evidence, and not of competency of the evidence. The various cases applying this settled rule may be found collected and summarized in Crawford’s Digest, col. 698, 699. The court is of opinion that the evidence in this' case meets the requirements, and is satisfied that the assignment was not absolute in fact, but was a security for debt.
Reversed and remanded with direction to enter a decree in accordance with the prayer of the complaint.
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Battle, J.
In May, 1902, the Pine Bluff & Western Railway Company instituted a proceeding in the Grant Circuit Court to condemn a portion of northwest quarter of section 18, township 5 south, range 11 west, in Grant County, in this State, for right of way for its railway.
In order to prevent any delay in the construction of its railway over the land, the judge of the Grant Circuit Court, in the vacation of the court, designated the sum of fifty dollars to be deposited in the Merchants & Planters Bank, of Pine Bluff, Arkansas, by the railway company, subject to the order of the court, and for compensation for right of way when the amount thereof shall have been assessed, and authorized it to take possession of a right of way fifty feet wide through and across the land when the deposit was made. The deposit was made as directed, and the railway company constructed its road over the land.
Dave Kelly and N. M. A. Kelly, the owners of the land, filed an answer, and alleged that the -railway company, before the proceedings to condemn right of way were instituted, without their knowledge or consent, entered upon the land and cut timber thereon, to their damage; and that, since the proceedings were instituted, the railway company, through its agents and servants, set fire out on the land, and burned six panels of their fence, and caused stock to get into their fields and destroy their crops.
Some time after filing their answer, they were allowed to amend it as follows: “That the actual damage to the land is $100, caused by the building of its dump and damming up the-creek and causing the land to overflow herein since the filing of this answer. It, through its agents and servants, has 45 other trees, to defendants’ damages $22.50, cut and used in January, 1903, in repairing its bridges on its road established across our land and extending its spur, which it now has abandoned.”
The railway company filed a motion to strike the answer and amendment from the files of the court, and a demurrer to the same, which were overruled.
Afterwards the railway company moved to dismiss its petition for a right of way over the land, saying that it had abandoned the right of way, and removed its tracks therefrom and restored the land to its original condition; and the court dismissed the petition. -
The railway company having appropriated a part of the land for a right of way for a short time, the-court caused a jury to be impaneled to assess the compensation to which the owners are entitled for such use. It allowed the owners to prove that timber was cut upon their land, and the value of it, without showing that it was on.the right of way, and damage to their crops caused by stock getting into the field through a gap in the fence burned by fire alleged to have been originated by the agents or servants of the railway company. Evidence to prove such damages was admitted without regard to their being airy part of the compensation for the right of way. The court instructed the jury to allow to the owners the market value of the timber cut and of the crops destroyed- as damages. The court erred in admitting such evidence and instructing the jury.
The proceeding prescribed by the statutes of this State for the condemnation of land for right of way for a railroad is special. Its sole object is to ascertain the compensation that the railroad company shall pay for the right of way. Reynolds v. Railway Company, 59 Ark. 171; Mountain Park Terminal Railway Company v. Field, 76 Ark. 239. The measure of damages allowed for the taking of land for right of way is the market value of the land so taken and the damage resulting to the owner’s remaining land from the building of the road across it, and from floods or overflows caused by the construction of the same. St. Louis, Arkansas & Texas Railway v. Anderson, 39 Ark. 167; Springfield & Memphis R. Co. v. Rhea, 44 Ark. 258; Springfield & Memphis R. Co. v. Henry, 44 Ark. 360.
But in this case the right of way was never acquired. It was used for a short time and then abandoned. It would reasonably follow that the measure of damages in this case is the rental value of the land taken for right of way, in the condition in which it was when taken, for the time it was occupied, and the depreciation in the value thereof by reason of the timber cut and other acts done thereon by the railway company, and the damage resulting to the remainder of the owner’s land from the building of the road across it, and from the flooding or overflow caused by the construction thereof, the time of the occupancy of the same considered.
Eor all other damages occasioned by torts committed or wrongs done by the railway company the owners have remedies in actions to recover the same.
Reverse and remand for a new trial.
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McCuuuoch, J.
This was an action brought by E. P. Baskins, as administrator of the estate of Owington Baskins, deceased, against the Choctaw, Oklahoma & Gulf Railroad Compaify to recover damages for alleged negligent killing of deceased. He was run over and killed by a train of cars operated by appellant at Casa, Ark., and damages for the benefit of the widow and next of kin of deceased in the sum of $2,000 were asked.
Appellant pleaded contributory negligence on the part of deceased, and it is contended now that the court erred in refusing to give a peremptory instruction to the jury to return a verdict in its favor.
The details of the injury, as related by witnesses, were as follows:
The railroad track runs due east and west, and the depot at Casa is situated on the north side of the main track. There is a side track south of the main track, and both intersect a street running due north and south immediately west of the depot. The injury occurred about five o’clock in the afternoon, and a few minutes before the arrival of a passenger train from the east a work train with a caboose or box car attached to the rear end came in from the east, and passed the station, and backed in on the side track to await the arrival and departure of the passenger train. The rear end of the work train stopped on or near the street crossing mentioned above. When the passenger train arrived, deceased started toward the depot from one of the storehouses south of the track, and walked along the west side of the street, going north until he came within a short distance of the traqk, when he crossed the street diagonally, following a footpath which crossed the track on the east side of the street, and walked upon the side track, and stopped 15 or 20 feet east of the rear end of the caboose or box car. The witness who related these facts said that deceased stopped there from a half minute to a minute and a quarter, when the work train backed up and struck him, and that the end of the train was about 15 or 20 feet from him 'when it began to move. The work train had been standing there from three to five minutes. The passenger train was then moving out, and was making considerable noise, but no signals were given from the work train either by bell or whistle, and no lookout was kept from the rear end. Deceased was blind in his left eye, the eye on the side next to the work train. There is no evidence that deceased did not look for the moving train, except the fact that it was broad daylight, and he could have seen it if he had been looking that way at the time. It is evident from the testimony that deceased stopped momentarily on the side track awaiting the departure of the passenger train, which was then just moving out from the station, and the rear coach was passing deceased when he was struck by the backing work train.
It is not insisted that the evidence is insufficient to sustain a finding of negligence on the part of the men in charge of the work train in failing to give signals by bell or whistle and in failing to keep a lookout. This is conceded. But appellant contends that deceased could have seen the moving work train if he had looked, and that his failure to see it and get out of the way establishes negligence on his part which prevents a recovery. It is, of course, too plain for controversy that he could have seen the end of the car if he had been looking that way at' the moment, but it does not necessarily follow that he was negligent in failing to see it. The doctrine has been repeatedly stated by this court that a traveler approaching a railroad crossing must take notice of the fact that it is a place of danger, and must not only look and listen for the approach of trains before he goes upon the track, but must continue to look and listen until he has passed the point of danger. He must continue his vigilance until the danger is passed, and must look both ways up and down the trade. Railway Co. v. Cullen, 54 Ark. 431; Railway Co. v. Tippett, 56 Ark. 457; St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549; Martin v. L. R. & Ft. S. Ry. Co., 62 Ark. 158; Little Rock & F. S. Ry. Co. v. Blewitt, 65 Ark. 235; St. L. & S. F. Ry. Co. v. Crabtree, 69 Ark. 134; St. L., I. M. & S. Ry. Co. v. Johnson, 74 Ark. 372; Tiffin v. St. Louis, I. M. & S. Ry. Co., ante, p. 55.
But, as the traveler is required to look both ways for danger, it is obvious that he can not do so at precisely the same moment. It must be remembered that deceased was upon the track probably not more than half a minute, and in that time he was required to look toward the east as well as toward the west. He would have been guilty of negligence if he failed to do so. It does not appear from the evidence that he did not look both ways before as well as after he went upon the track. He may have done so, and the burden was upon the defendant to show that he did not do so. The work train was headed in an opposite direction, with the rear end standing upon or near the street crossing. There is no proof that deceased knew that an engine was attached to the cars on the side track; but if he did know, he might reasonably have assumed that the train would pull out of the switch forward and not backward. We do not mean to say that this state of facts justified deceased in ignoring the possibility or probability of the train backing toward him and in failing to keep a lookout for such emergency, but it was a circumstance for the jury to consider whether deceased, being at the time under obligation to look both ways for his own safety, might not, in the discharge of that duty, have reasonably relaxed his vigilance to some extent in looking toward the west where this train was situated, and consumed more time than he otherwise would have done in looking toward the east where there was also a possibility of danger. He might have done so consistently with due care. Though he was bound to look both ways, the frequency with which he was bound to change his view depended upon circumstances and the probability of danger to be apprehended, and of this the jury were the judges. The law required him to exercise such degree of care in that respect as was reasonably necessary to discover the danger and avoid injury.
The train was standing within fifteen or twenty feet of him, backed up to the street crossing and headed in the other direction; he had doubtless observed its position before and perhaps after he went upon the track, and seen that it was motionless; it was put in motion noiselessly and amidst the noise of the departing passenger train, and there is no evidence that he did not look in that direction the moment before it was set in motion. Under those circumstances, and with the burden upon appellant to show that deceased did , not exercise proper care, how can we say, as a necessary conclusion from this evidence, that he was guilty of negligence in failing to discover the motion of the car over a space of fifteen or twenty feet? We can not do so. That was for the jury, and we will not disturb a verdict based upon a conclusion they reached upon that state of the proof.
The following language of the New York Court of Appeals, in discussing the same question upon a somewhat similar state of facts, is quite appropriate here:
“Whether she looked exactly at the right moment, or in each direction in proper succession, or from the place most likely to afford information, can not be determined as a matter of law, and whether upon the whole, and in view of all the surrounding circumstances, including the negligent conduct of defendant, she exercised due care, was a question which the trial court could not properly decide for itself, but was bound to submit to the jury as one which they alone could answer.” Greany v. Long Island R. Co., 101 N. Y. 419.
Learned counsel for appellant press upon our attention, with much force, as conclusive of this case, the decision of this court in St. Louis, I. M. & S. Ry. Co. v. Martin. 61 Ark. supra; but we can not agree with them that that case is decisive of this. We do not undertake to depart from the principles of law announced in that case, nor do we recede from its application to the facts of that case. But it is not applicable to the facts of the case at bar. In that case the injured party went upon the track at night, and the witness testified that the noise of the approaching train was plainly heard — that he heard it plainly, though his sense of hearing was imperfect. So the court said, the injured person’s sense of hearing being unimpaired, that he must have heard the noise and failed to avoid the injury, and was therefore guilty of contributory negligence. In the case at bar, though, it. was the duty of deceased to look out for the danger, it was for the jury to say whether, considering all the circumstances and his duty to look in the other direction also, he failed to turn and look in each direction with sufficient frequency to acquit himself of negligence. St. L., I. M. & S. Ry. Co. v. Tomlinson, 78. Ark. 251.
“It will be presumed that the injured party was in the exercise of due care until the contrary is made to appear.” Little Rock & Ft. Smith Railway Co. v. Eubanks, 48 Ark. 460; L. R., M. R. & T. Railway Co. v. Leverett, 48 Ark. 333; Jones v. Malvern Lumber Co., 58 Ark. 125; St. Louis, I. M. & S. Railway Co. v. Martin, 61 Ark. supra.
The court, on motion of appellant, gave instructions to the jury covering generally the doctrine of contributory negligence and the duty of travelers going upon a railroad crossing to look and listen for the approach of trains. But the court refused to give an instruction asked by appellant containing a specific declaration as to the duty of the traveler to continue to look and listen until all danger be passed.
The instruction in question was modified by the court, and is as follows (that part which was stricken out by the court appears here in parentheses, and the addition thereto made by the court appears in italics) :
“You are instructed that a railroad track is, in itself, a warning of danger; and if you find that deceased went upon the side track of defendant, and stopped on said side track to wait for a train on the main line to pass, and that while on said side track he was backed over by a freight train (but that deceased could have waited for said passenger train to pass before going on to the side track, or) and by looking in the direction from which said freight train came could have seen it and failed to do so, and thereby have avoided being injured, and such failure contri buted to the injury, then he was guilty of negligence as a matter of law, and your verdict will be for the defendant, notwithstanding you may find that defendant was also guilty of negligence (and you are instructed in this connection that it was the duty of the deceased to continue to look and listen in both directions until all danger had passed).”
As we have.already said, this court has repeatedly declared the rule that travelers upon a railroad crossing must maintain the required vigilance and continue to look and listen until the danger be passed; and if an instruction on that subject in proper form had been asked, the court should have given it. But the court should not have given an instruction containing erroneous statements of the law in other respects, and was not bound to give an instruction on the subject when none was asked in proper form. A party who has not asked for a specific instruction in proper form upon a given theory can not complain at the failure of the court to give an instruction upon that theory when the instructions given, by the court are free from error. Allison v. State, 74 Ark. 444.
Now, the instruction, as framed by appellant, contained an erroneous statement of law, which was stricken out by the court, to the effect that, if deceased could have waited for said passenger train to pass before going on to the side track, and failed to do so, he was guilty of negligence. This was manifestly erroneous, and was properly stricken out by the court. The fact that deceased went upon the side track without waiting for the departure of the passenger train had no proximate relation to the injury. It might as well have been said that if he had remained at home that day, instead of coming to town and crossing the railroad track, he could have avoided the injury, and was, therefore, guilty of negligence. If deceased was guilty of negligence at all which was the proximate cause of the injury, it was in failing to look and listen for the moving train. With this objectionable part of the instruction stricken out, and the additions which were made, the court might well have given it to the jury without further subtraction; but it was a correct statement of the law in the form in which it was given; and if the defendant desired’that the clause concerning the duty of the traveler to continue to look and listen should be retained in the instruction, it should have made the request. Not having done so, it can not complain of the giving of an instruction which, as modified, was a correct statement of the law, nor of the refusal of the court to give an instruction which, without modification, was, as a whole, an erroneous statement of the law.
It is next urged that the assessment of $2,000 damages was excessive. Deceased was a stout, healthy man, 56 years of age, actively engaged in farming, with an earning capacity of from $400 to $500 per annum. He labored in the field himself, as well as superintended the work on his farm, and, as the testimony shows, made a good hand at labor. His wife and daughters and one of his sons (one of his children being a minor) lived with him on the farm. There is no direct proof of the amount of his contributions to the support of his’ family, but the presumption will be indulged that, as they lived with him on the farm, a reasonable amount of his earnings was contributed to their support. There is not, under those circumstances, an entire absence of proof of such contributions, as contended by appellant. We must presume that he discharged his duty, in some measure, to them. An assessment of $2,000 as compensation for loss of a husband and father of industrious habits, and with a life expectancy of about 17 years, and with an earning capacity of $400 a year, can not be said to be excessive.
The proof of the amount of contributions to the support of his family by deceased could have been more specific and satisfactory, but we think it was sufficient to justify a verdict for the amount awarded by the jury.
Judgment affirmed.
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Wood, J.
At the time appellant purchased the land from his sisters, he was administrator of his father’s estate, and as such had possession and control of the land for the payment of the debts of the estate for which it appears the lands were needed. Kirby’s Digest, § 79. Appellant, therefore, was trustee for the creditors to see that their claims were paid. He was also trustee for the heirs to see that the lands were properly administered in the payment of the debts, and that the residue of the proceeds of the lands sold for the purpose of paying the debts should be distributed to them according to their respective interests. Appellant was a trustee for all who were interested in the estate which he had in charge to administer. Wright v. Campbell, 27 Ark. 646; 1 Woerner, Administration, § 10; 2 Woerner, Administration, § 489.
The general rule, says Mr. Perry, is “that the trustee shall not take beneficially by gift or purchase from the cestui que trust; * * * the question is not whether or not there is fraud in fact, the law stamps the purchase by the trustee as fraudulent per se, to remove all temptation to collusion and prevent the necessity of intricate inquiries, in which evil would often escape detection, and the cost of which would be great. The law looks only to the facts of the relation and the purchase. The trustee must not deal with the property for his own benefit.” “But,” he continues, “there are exceptions to the rule, and a trustee may buy from the cestui que trust, provided there is a distinct and clear contract, ascertained after .a jealous and scrupulous examination of all the circumstances; that the cestui que trust intended the trustee to buy, and there is fair consideration and no fraud, no concealment, no advantage taken by the trustee of information acquired by him in the character of trustee. The trustee must clear the transaction of every shadow of suspicion. * * * Any withholding of information, or ignorance of the facts or of his rights on the part of the cestui que trust, or any inadequacy of price, will make such purchaser a constructive trustee.” Perry on Trusts, § 195. This is the general doctrine announced by our own court and recognized by practically all the authorities. See Thweatt v. Freeman, 73 Ark. 575; Cook v. Martin, 75 Ark. 40; Cornish v. Johns, 74 Ark. 231. As to the purchase of trust property by the trustee, see also Gibson v. Herriott, 55 Ark. 85; Hindman v. O'Connor, 54 Ark. 627; White v. Ward, 26 Ark. 445; Imboden v. Hunter, 23 Ark. 622, where the general rule is declared. See also 28 Am. & Eng. Enc. Law (2 Ed.), pp. 1016, 1020, where the rule and exception thereto are stated, and the numerous authorities, English and American, are cited; 2 Woerner, Administration, § 487 et seq.
In Handlin v. Davis, 81 Ky. 34, it is said: “An administrator or executor is not allowed to purchase or speculate upon the estate confided to him for the purposes of administration.”
In all cases the burden is on the trustee to establish all the requirements necessary to bring his title within the exception to the rule. 28 Am. & Eng. Enc. Law (2 Ed.), p. 1023.
In Coles v. Trecothick, 9 Ves., Jr., 234, Lord Eldon said: “Upon the question as to a purchase by a trustee from the cestui que trust I agree, the cestui que trust may deal with his trustee, so that the trustee may become the purchaser of the estate. But, though permitted, it is a transaction of great delicacy, and which the court will watch with the utmost diligence, so much so that it is very hazardous for a trustee to engage in such a transaction.” And further on in the opinion, after stating the requirements to bring .a case within the exception upholding such transactions, he says: “I admit, it is a difficult case to make out, wherever it 'is contended the exception prevails.”
The chancellor found: “That defendant, W. S. Reeder, was the acting administrator of the said estate; that prior to the purchase by him he submitted to the respective plaintiffs an offer, on behalf of his mother, 'for $225 for the undivided one-eighth interest she had in her father’s estate; that at the time of the submission of the said offer defendant stated to plaintiffs that after the debts of the estate had been paid that would be their respective shares, and that his mother requested him to purchase it in order to hold the estate together until her death, when it would go back to all the children; that defendant further represented to plaintiff that that part of the lands allotted as dower and homestead was not to be taken into consideration in arriving at the extent of plaintiff’s interest, and that he was not purchasing that interest at all; that plaintiffs, relying on these declarations, executed the deeds in controversy; that the value of. the homestead and dower land was $4,500, and that the value of the other lands was $3,500; that the $225 received by plaintiffs for their respective interests was not an adequate price therefor.” It could serve no useful purpose to review at length the testimony upon which the chancellor’s findings were based. It suffices to say that, eliminating all incompetent and irrelevant testimony, we are of the opinion that his conclusions of fact were not clearly against the weight of the evidence. Applying the principles of law announced, supra, to these facts, the conclusion reached by the lower court “that the defendant (appellant here) by reason of his relation of trustee for the creditors, the heirs and next of kin, was incapable of dealing with the trust property to his advantage” was clearly correct.
But, aside from any trust relationship, appellant was enjoined to the utmost good faith in dealing with his sisters. The dependence upon and confidence in him to do the right, engendered by the natural love and affection incident to such close blood kin, made uberrimam fidem imperative. Million v. Taylor, 38 Ark. 428.
The court did not err in canceling the deed from Annie Meredith to appellant, so far as it related to the S. ½ of the N. E. ¼, the N. E. ¼ of the N. E. ¼ and the E. ½ of the N. W. ¼ of sec. 19, and the N. E. ¼ of the S. W. ¼ of sec. 20, all in Tp. 11 S., R. 27 W. While this land had been assigned to the widow of Sam Reeder and the mother of appellant as homestead and dower, and was therefore not in the possession or under the control of the appellant as the administrator, still it was embraced in the deed which conveyed the interest of appellee in the lands of the estate which were under the control of appellant as administrator, and which deed, as we have seen, was voidable. Now, the deed to all these lands was based upon one and the same consideration, and was an entire and indivisible transaction. The contract of conveyance was entire, and, being voidable in part, was voidable as to all. For there is no apportionment of such a contract. See Phoenix Ins. Co. v. Public Parks Am. Co., 63 Ark. 202; McQueeny v. Phoenix Ins. Co., 52 Ark. 257; State v. Scoggin, 10 Ark. 326; Jackson v. Jones, 22 Ark. 158; Iron Mt. & Helena R. Co. v. Stansel, 43 Ark. 275. And, as to entire contracts, Higgins v. Gager, 65 Ark. 604-609.
The court did not err in refusing to allow appellant for alleged improvements. The testimony of appellant tends to show that what improvements he put upon the lands were under contract with his mother, she having possession and control at the time appellant claims the improvements were made, and that she paid appellant for these improvements in allowing him the use of the land for two years. Moreover, if appellant’s purchase was in bad faith, as the court’s findings show and the proof warrants, he would not be entitled to any compensation for improvements.
It was not necessary under the facts of this record for appellee to offer to return the $225.00 which appellant paid .her for her interest in the land, before she could maintain her suit for a rescission of the contract. For the proof shows that appellant had realized from appellee’s interest in the estate which he bought, apart from the reversionary interest in the dower and homestead, the sum of $55.25 more than he paid. He is therefore in statu quo, with a clear profit of $55.25.
The claim of appellee that appellant should pay her the amount he received from the lands sold in excess of what he paid her for her interest is without equity, since the court annulled the sale of her reversionary interest in the dower and homestead. All the proof shows that she was willing to sell her interest in the estate, and would have sold it for the consideration paid her, had her dower and homestead not been included. There is nothing in the proof to impeach the good faith of the contract between appellant and appellee except the alleged misrepresentation on the part of appellant that the reversionary interest of appellee was not to be included in the deed she should execute for her interest in the lands of the estate. But for this there would have been no cause for setting aside the deed.
The small profit realized would not show any inadequacy of consideration.
So our conclusion on the cross appeal is that the court dir. not err in refusing appellee’s claim for the $55.25.
The decree was right. Affirm'.
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McCulloch, J.
Appellant, as administratrix of the estate of her deceased husband, C. R. Marshall, brought this action against appellee to recover damages by reason of his death, alleged to have been caused by the negligence of appellee. Deceased was a brakeman employed by appellee, and was killed by a train at Russellville, Ark., while he was coupling cars. Negligence of appellee was alleged in allowing the roadbed to become covered with piles of clinkers and cinders, and in allowing á drawhead and coupler on one of the cars which deceased was attempting to couple to become defective, and in allowing a hinge of an apron attached to the car to become broken, none of which defects, it is alleged, deceased had notice of. The answer denied all the allegations of negligence, and alleged contributory negligence on the part of deceased, and that his death resulted from an accident which was a part of the risk he assumed in his employment.
When the introduction of testimony was completed, the court instructed the jury to return a verdict for the defendant, which was done, and the plaintiff appealed. The only question, therefore, presented is whether there was sufficient testimony, giving it the strongest probative force in support of plaintiff’s alleged cause of action, to justify a verdict in her favor.
It is shown that deceased made three or four attempts to couple the cars, which were ineffectual on account of the failure of the coupler to work automatically. He was killed in the. last attempt. No defect in the coupler is shown to have existed, except that it was perhaps rusty, and the knuckle failed to open and close from the impact of the cars coming together. Immediately after the accident it worked all right after being greased. The car which he was attempting to couple onto the train was a disabled dirt car which had been in use in the work of. re-constructing the roadbed. On the end of the car was an iron apron about three feet wide, extending the full width of the car, which was attached to the car by large iron hinges. ■ The apron was arranged so that, when turned down in a horizontal position, it covered the space between that car and the next one, and enabled the plow to pass along unobstructed from car to car to expel the loads of dirt. One of the hinges on the apron was broken, and, when the apron was turned back, it protruded twelve inches, so one of the witnesses stated, over the end of the car. Deceased, in attempting the last time to couple the cars, stepped out from between them, gave the signal to the engineer to back up, and walked back between the cars to adj ust the knuckle of the coupler. He had his hand on the knuckle when the cars came together, and he attempted to jump out from between them, and was caught by the hinge, and fell between the ends of the couplings, and was hurt. The hinge either pierced his body or his clothing. He lived only a very short while, and, when asked, after he partially revived from the shock, concerning the manner in which he received the injury, merely said, “The hinge.” There was sufficient evidence to have justified the jury in finding that the company was guilt)'' of negligence in allowing piles of clinkers and cinders to accumulate along the track which might hinder the, trainmen in handling and coupling cars, but there was no testimony tending to show that this contributed to the injury of' appellant’s intestate. One witness stated that he was either “caught by something or stumbled,” he did not pretend to know definitely which it was. Two eyewitnesses introduced by plaintiff stated that he was caught by something and was thrown over between the ends of the couplings. There can be no doubt, under the evidence, that he was caught by the hinge as he attempted to pass out from between the cars. This was his own brief account of the accident, which was stated under circumstances which rendered it admissible as part of the res gestae. ■ So there was nothing to go to the jury on this charge of negligence.
The evidence was undisputed that the coupler was not in perfect working order, and that the hinge on the apron of the car was broken, either of which defects the jury might have found from the evidence contributed to the injury. There was also sufficient evidence to warrant a finding that the car had not been inspected and notice given in the usual way of the defects. But it does not follow from this that the servants of the company were negligent in this regard, or that the accident was not due to one of the risks which appellant’s intestate assumed by virtue of his employment. On the contrary, it is clear from the evidence that he had notice that the car was disabled in some way, and that it was being coupled into the train for the purpose of carrying it to Van Burén for repairs. This train was made up at Russellville for a trip to Van Burén, and the conductor had ' orders from the office of the trainmaster to take up all bad-order dirt cars and all empty box-cars on the road between Russellville and Van Burén, and convey them to Van Burén for repairs. Deceased knew of this order, and assisted in locating the bad-order dirt cars (.there being two of them) on the side track at Russellville. The conductor and one of the brakemen testified that deceased had the switch list containing the numbers of those cars, and that all three of them hunted up the cars and looked' at them. In this way he received notice that they were disabled cars to be carried to the shop for repairs. It may be that he did not know of the projecting broken hinge before he was caught by it, though it is highly probable from the evidence that he did observe it. It was a defect easily discernible on casual observation of that end of the car, and the conductor testified that he and deceased txamined the car together, and that the latter was bound to have ■seen it. But the company was not bound to give him specific notice of the defects. It was not customary to do so, and under the facts of this case it was not required in the exercise of due care. It was customary for the inspector merely to mark with chalk on the disabled car the letters “B. O.,” meaning bad order. This was not' done in this instance, and the jury would have been warranted in so finding, and that the inspector was guilty of negligence in failing so 'to do; but, as deceased received information of the same fact from another source, it can not be said that the negligence of the inspector contributed to the injury. In the operation of railroad trains, cars will necessarily become disabled, sometimes, from ordinary wear of use and sometimes from unavoidable accident. They must then be conveyed to the shop for repairs, and it is the duty of the trainmen to do this. It is necessarily and unavoidably a part of the duties arising from their employment as train operatives, because the company obviously can not provide a repair shop wherever a car may become disabled, nor send out a special train and corps of men to bring in or repair every disabled car. It is' only bound to exercise due care, through its vice-principals, and through a proper system of timely inspection, to discover the disabled cars and notify the trainmen of such condition. When this is done, the risk of handling the cars and carrying them to the shop becomes one of the risks ordinarily incident to the employment, and is assumed by the employee. 1 Labatt, Master & Servant, § 268; Dresser on Employers’ Liability, p. 409; 4 Thompson on Neg. § 4729; Chesapeake & O. R. Co. v. Hennessy, 96 Fed. 713; Yeaton v. B. & L. Railroad, 135 Mass. 418; Judkins v. Railroad Co., 80 Me. 417; Arnold v. D. & H. C. Co., 125 N. Y. 15; Chicago & N. Ry. Co. v. Ward, 61 Ill. 130; Fraker v. St. P., M. & M. Ry. Co., 32 Minn. 54; Kelly v. Chicago, St. P. M. & O. Ry. Co., 35 Minn. 490; Flannagin v. Chicago & N. W. R. Co. 50 Wis. 462; Watson v. H. & T. C. Ry. Co., 58 Tex. 434; Brown v. Chicago, etc., R. Co., 59 Kan. 70.
The doctrine applicable to the facts of this case is fully stated by the Supreme Court of Minnesota in Kelly v. Chicago, St. P. M. & M. R. Co. supra, as follows:
“The aspect of the case is, then, this: The plaintiff’s intestate is notified generally that the car is in bad order, so that it has been necessaiy to withdraw it from ordinary service and lay it up for repairs. When he comes to handle it, he does so knowing that, for some reason not disclosed to him, it is not suitable for use in the ordinary way. Not knowing what, in particular, those reasons are, if he handles the car at all; he handles it as a car which is unsuitable for use, and at his own risk, not only for' its defects — at least for such as are apparent to or would be fairly suggested by ordinarily diligent and careful observation, like those of the brake on this car. * * * The plaintiff’s intestate must be taken to have assumed the risk of handling this car as one in bad order, which it therefore might be dangerous to handle in the ordinary way, and as to which, in the absence of any definite information as to the respect in which it was defective, the burden of ascertaining the defects and source of danger was cast upon and assumed by him. As he took this risk and burden upon himself, he can not hold the defendant responsible for it.”
In Chesapeake & O. R. Co. v. Hennessy, supra, Judge Lurton, speaking for the court, said: “The rule is well settled that if the work of the employee consists, in whole or in part, in dealing with damaged or defective cars, and which, by the very nature of his occupation, he must know, or have some reason to know, are unsafe and dangerous, he voluntarily assumes the risk and hazards which are incident to the duty he was engaged to perform. It is not a case where dangerous or defective instrumentalities are supplied by the master to be used in his work, and' where notice of such danger should be given, but a case where the instrumentalities to be handled and worked with or upon are understood to involve peril and to demand unusual care. In such cases, the risk is assumed by the servant as within the terms of his contract, and compensated by his wages.”
We do not mean to hold that because the servant is engaged in the hazardous work of handling disabled cars he is deemed to have assumed risks created by the negligence of the company or its vice-principals, or that the company is absolved from the exercise of due care to protect him. On the contrary, we say that whilst he is engaged in that work, though he is deemed to have assumed all the ordinary risks incident to the performance of that particular duty, yet the same duty rests upon the company and its vice-principals to commit no act of negligence whereby he may suffer injury, and to exercise ordinary care to protect him from danger, as while he is in the discharge of other and less hazardous work. The case of St. Louis, I. M. & S. Ry. Co. v. Touhey, 67 Ark. 209, is illustrative of the doctrine.' In that case the servant was a member of a wrecking crew engaged in removing wrecked cars to the repair shops, and was injured by reason of the negligent acts of other employees of the company in moving the train to which the cars were attached at too rapid a speed. The court held that the company was liable for the negligence — that it was a risk which the servant had not assumed. But in the case at bar the servant knew that the car was disabled. It was a part of his duties to handle such cars, and, according to all the authorities on the subject, he must be deemed to have assumed, as one of the ordinary risks of his employment, the risk resulting from the disabled condition of the car.
This being true, the evidence did not justify a verdict in favor of the plaintiff, and the court properly instructed the jury to return a verdict for the defendant.
Affirmed.
Riddick, J., not participating.
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Robert J. Gladwin, Judge.
Appellant Mid-South Adjust-IVi ment Company appeals from an order of the Ouachita County Circuit Court that disallowed appellant’s claim against the proceeds of a wrongful-death settlement. We affirm.
Shanna Harris died as a result of injuries suffered in an automobile accident. Her mother, Francis McCoy, was appointed administratrix of the estate on April 14, 2000. Appellant timely filed a claim against the estate for $7,425 on behalf of two medical providers who had provided medical services to Shanna Harris just prior to her death.
The administratrix filed a wrongful-death and survivor action against the drivers of the two vehicles involved in the collision. The liability carriers for the two defendants offered the policy limits of $50,000 to settle the action. This offer was presented to and approved by the trial judge.
On April 2, 2002, without notice to appellant, the trial court entered an order for distribution of the settlement proceeds. On August 7, 2002, appellant filed a petition to re-open the estate, contending it had not received notice regarding the wrongful-death-settlement hearing and that it should have been allowed an opportunity to participate in the distribution of the proceeds to recover for the medical services.
Appellant argues on appeal that the trial court erred in refusing to re-open the estate. In fact, the court did re-open the estate, but held that it would not set aside or reconsider the distribution previously ordered, reasoning that, under the provisions of Ark. Code Ann. § 16-62-102 (Supp. 2001), appellant had no standing to participate in the settlement proceeds.
Arkansas Code Annotated section 16-62-102(a)(l) addresses wrongful-death actions and provides, in pertinent part, that whenever the death of a person is caused by a wrongful act, neglect, or default such as would have entitled the party injured to maintain an action and recover damages in respect thereof if death had not ensued, then the person that would have been liable had death not ensued shall be liable to an action for damages, notwithstanding the death of the person. The beneficiaries of the wrongful-death action are: (1) the surviving spouse, children, father, mother, brothers, and sisters of the deceased person; (2) persons, regardless of age, standing in loco parentis to the deceased person; (3) persons, regardless of age, to whom the deceased stood in loco parentis at any time during the life of the deceased. Ark. Code Ann. § 16-62-102(d). Of particular relevance to this case is Ark. Code Ann. § 16-62-102(e), which provides that no part of any recovery referred to in this section shall be subject to the debts of the deceased person or become, in any way, a part of the assets of the estate of the deceased person. (Emphasis added.)
In support of its argument for reversal, appellant points out that part of the complaint filed in the wrongful-death action sought to recover compensatory damages for medical expenses incurred by the decedent prior to her death. Appellant contends that these amounts were sought pursuant to Ark. Code Ann. § 16-62-101 (Supp. 2001), which provides that a decedent’s estate may recover for the decedent’s loss of life as an independent element of damages, and that these amounts were therefore part of the estate and subject to creditors’ claims rather than being exempt as proceeds of a wrongful-death action.
In Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392 (1998), our supreme court stated that the personal representative is clearly the party to bring a wrongful-death action on behalf of the statutory beneficiaries, and that the other statutory beneficiaries have no standing to bring the lawsuit. The court also noted that once a settlement is obtained, the proceeds do not become assets of the decedent’s estate, but that the proceeds of a wrongful-death action are for the sole benefit of the statutory beneficiaries and may not be used to pay off debts of the estate. 335 Ark. at 314, 983 S.W.2d at 396.
In its letter opinion filemarked May 12, 2003, the trial court commented, “It is noteworthy that it is uncontroverted that this is in fact a wrongful-death settlement with which we are dealing.” In three other instances within this opinion, the court refers to the proceeds of the wrongful-death action or settlement. We are of the opinion that these references constitute a finding of fact that the entire amount of the proceeds was, in fact, attributable to the wrongful-death action. As such, this amount did not become a part of the estate and was exempt from the claims of the decedent’s creditors.
Probate cases are reviewed de novo on appeal, and we do not reverse the findings of the probate judge unless those findings are clearly erroneous. Arkansas Dep’t of Human Servs. v. Keeling, 73 Ark. App. 443, 43 S.W.3d 772 (2001). A probate court’s finding of fact is clearly erroneous when, although there is evidence to support it, we are left with the definite and firm conviction that a mistake has been committed. Id.
In the case now before us, a wrongful-death action was filed on behalf of the statutory beneficiaries. A settlement of $50,000 was negotiated, without reference as to how it was to be apportioned among possibly competing measures of damages. The trial court noted repeatedly that the proceeds were attributable to the wrongful-death action or settlement, and we cannot say that the court was clearly erroneous in this regard. Arkansas Code Annotated section 16-62-102(e) clearly states that no part of any wrongful-death-action recovery shall be subject to the debts of the deceased. Accordingly, we affirm.
Affirmed.
Stroud, C.J., Griffen, Crabtree, and Roaf, JJ., agree.
Hart, Robbins, Bird, and Vaught, JJ., dissent.
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Sam Bird, Judge.
Appellee Wanda Horton fell and was injured when she was walking into appellant AutoZone’s store in Searcy, Arkansas, on March 28, 2002. Horton later received medical care and underwent surgery related to the injuries sustained in the fall. In a complaint filed against AutoZone, Inc., in the White County Circuit Court, Horton alleged that she was injured after her foot was caught in an unsecured doormat that protruded above the surface of an abutted doormat; and that this caused her to fall to the ground, striking her shoulder and face. AutoZone denied any negligence and stated that it had no knowledge of any abnormal condition of the mats situated in front of its door that could have been “attributable” to a fall. AutoZone alleged that any injuries to Ms. Horton resulted from her own negligence or negligence by a third party.
A jury trial resulted in a verdict in favor of Horton for $31,000, which was entered as the trial court’s judgment on October 3, 2003. AutoZone appeals, contending that the trial court erred: (1) in refusing to grant AutoZone’s motions for a directed verdict, made on the basis that there was insufficient evidence of negligence or breach of duty to an invitee; (2) in instructing the jury on circumstantial evidence; and (3) in instructing the jury on general negligence by use of Arkansas Model Instruction — Civil 203.
We agree with the first point on appeal: we hold that the trial court erred in refusing to grant a directed verdict. Because of this holding, we need not address AutoZone’s points concerning jury instructions. The case is reversed and dismissed.'
Testimony at the trial was given by Richard Fry and Laura Berry, both former employees of AutoZone, as well as by appellee Horton. Fry testified that he was working at the store when Horton was injured. He testified that he did not see her fall, but that he saw her on the ground and that her foot was under a corner of the mat. He stated that an AutoZone employee straightened the mats, which Fry described as heavy, weighing approximately thirty to forty pounds. Fry testified that he had tripped over the mats more than twice in the six-and-a-half years he had worked for AutoZone, but that he had no knowledge of any customer ever tripping on them. He said that the mats were a potential hazard if not straightened up. He testified that the mats had curled on several occasions when he turned the corner while pushing up to fifteen cases of oil on a dolly or a cart, that he straightened the mats out when this occurred, and that he did not know if every employee did so.
Laura Berry testified that she worked for AutoZone for four years and was working there when Horton was injured. Berry stated that she saw Horton lying on the ground and saw one of her shoes away from her. Berry testified that the shoe was lying under the mat on the other side from Horton, with the top part under the mat; but during her testimony she also read her deposition statement that the shoe was beside Horton and not beneath the mat. Berry described the mats as black, textured, and heavy, probably a good fifteen or twenty pounds. She testified that she had seen them side by side, or end to end, and had never observed them to be overlapped; she stated, however, that she did observe the mats in an overlapping position after Horton tripped. Berry said that the mats did not move at all when she put an item such as a battery on a dolly and rolled the dolly over them, that she did not know if the mats moved for anybody else, and that she was not aware of anyone else ever tripping over them.
Wanda Horton testified that on the day in question she was walking straight into the store, and that the next thing she knew she was on the ground. She stated:
I was walking down in front of all the vehicles and stuff and everything seemed clear to me. The next thing I knew I fell. I tripped over the mat. When I was walking up to the mat I tripped over it and fell flat.
Horton stated that she was wearing a pair of tennis shoes with open back, closed toe, and thick sole; that she had owned several such pairs; and that she had never experienced problems with them. She said that someone told her that her shoe was under the mat after she fell. She denied that her shoes grabbed the concrete to cause the fall.
Horton testified that she had been in the AutoZone store at least every month or two “since the last twenty years.” She said that she always looked at the mats; that once they had been crooked; and that as a general rule they were laid out side by side, “lapped over kindly, because they was too wide to put in front of the door.” She testified that she was being careful on the day of her injury when she walked towards the door of the store; that the door mats were flat like they always were; that they were smooth; and that she did not see anything unusual when she was walking. She read aloud her deposition statement that she had seen the mats overlapped as she approached them, and she testified that the mats had been overlapped from time to time. Horton testified that she did not know what caused her to fall. She read the statements in her deposition that she did not know what caused her to fall; that she tripped over the mat and fell; but that, as far as she knew, the mats were in their normal position.
As its first point on appeal, AutoZone contends that the trial court erred in refusing to grant its motions for a directed verdict, made on the basis that there was insufficient evidence of negligence or breach of duty to an invitee. In determining whether a directed verdict should have been granted, the appellate court reviews the evidence in the light most favorable to the party against whom the verdict is sought and gives it its highest probative value, taking into account all reasonable inferences deducible from it. Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003). A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict: stated another way, a motion for a 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. Id. Where the evidence is such that fair-minded persons might reach different conclusions, a jury question is presented and the directed verdict should be reversed. Id. It is not the province of the appellate court to try issues of fact, but simply to examine the record to determine if there is substantial evidence to support the jury verdict. City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000).
A property owner has a duty to exercise ordinary care to maintain his premises in a reasonably safe condition for the benefit of an invitee. Kopriva v. Burnett-Croom-Lincoln-Paden, 70 Ark. App. 131, 15 S.W.3d 361 (2000). Possible causes of a fall, as opposed to probable causes, do not constitute substantial evidence of negligence. Id.
In Van DeVeer v. RTJ, Inc., 81 Ark. App. 379, 101 S.W.3d 881 (2003), we further addressed the duty of care that a premises owner owes to invitees:
[A]s follows in Restatement (Second) of Torts, § 343 (1965):
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
The basis for a premises owner’s liability under this rule is the superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Jenkins v. Hestand’s Grocery, Inc., 320 Ark. 485, 898 S.W.2d 30 (1995). There is an exception to this general rule, which states that a “possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Restatement (Second) of Torts, § 343A(1) (1965).
Arkansas cases have also recognized the general duty that a premises owner owes to an invitee and the exception to this duty where the dangerous condition is either known or obvious to the invitee. See, e.g., Jenkins v. Hestand’s Grocery, supra; Jenkins v. Int’l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994); Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994); Carton v. Missouri Pac. R.R. Co., 303 Ark. 568, 798 S.W.2d 674 (1990); Kuykendall v. Newgent, 255 Ark. 945, 504 S.W.2d 344 (1974); Ramsey v. American Auto. Ins. Co., 234 Ark. 1031, 356 S.W.2d 236 (1962). These rules are the basis of AMI Civ.3d 1104, which states that the premises owner owes a duty to an invitee to use ordinary care to maintain the premises in a reasonably safe condition. No such duty exists, however, if the condition of the premises that creates the danger was known by or obvious to the invitee, unless the premises owner should reasonably anticipate that the invitee would be exposed to the danger despite his knowledge of it or its obvious nature. Id.
81 Ark. App. at 384-85, 101 S.W.3d at 883-84 (2003).
The burden of proof is always on the party asserting negligence, as negligence is never presumed. Morehart v. Dillard Dep’t Stores, 322 Ark. 290, 908 S.W.2d 331 (1995). To establish a prima facie case of negligence, appellant must show that he sustained damages, that the defendants were negligent, and that such negligence was a proximate cause of his damages. Id. While a party may establish negligence by direct or circumstantial evidence, he cannot rely upon inferences based on conjecture or speculation. Id.
In the present case, AutoZone asserts that it exercised ordinary care in placing mats in front of its door, that there was no evidence that the mats were placed in any way other than a reasonable manner, and that the mere fact that Horton slipped and fell on the mat does not give rise to any inference of negligence. Horton asserts that evidence of AutoZone’s employees’ prior knowledge of the tripping hazard was direct evidence that Auto-Zone was aware of the hazard and failed to take steps to protect its customers from injury. She also asserts that AutoZone should have known of the dangerous hazard created by its employees when carts or dollies were rolled over the doormats, causing the mats to curl; and that AutoZone should have reasonably anticipated that invitees would be exposed to the danger caused by AutoZone’s failure to maintain its premises in a reasonably safe condition. She asserts that it was a jury question as to whether the dangerous condition was open and obvious, as was the question of whether the invitee should reasonably have been anticipated to encounter the dangerous condition. She concludes that AutoZone breached a duty it owed to her, and that the breach was the proximate cause of her injuries.
We do not agree with Horton’s arguments. Although a former employee of AutoZone testified that he had tripped on the mat and that it buckled when he rolled a heavy dolly across it, he testified that he straightened the mat each time it buckled. He and another former employee stated that they had not seen anyone trip, and neither of them testified that they had seen the mat buckle when used by other employees. Horton herself testified that she observed the mats to be flat and smooth and that she saw nothing unusual as she approached them.
We hold that there was not substantial evidence that AutoZone had knowledge that the mats constituted a “tripping hazard.” The evidence presented, viewed in the light most favorable to Horton, showed that her shoe was under the mat after she fell. The jury could only have speculated that any unusual condition of the mats resulted directly from AutoZone’s negligence, and that such condition of the mats caused Horton to fall. The evidence does not establish that AutoZone breached any duty of care to Horton. We hold that the trial court erred in denying AutoZone’s motions for a directed verdict.
Reversed and dismissed.
Crabtree and Roaf, JJ., agree.
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Per Curiam.
Motion of Linda Ward for attorney’s fees is granted. Attorney’s fee approved in the amount of $1,200.00. See Walters v. Dep’t of Human Servs., 83 Ark. App. 85, 118 S.W.3d 134.
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John F. Stroud, Jr., Chief Judge.
This case involves a child, T.J. Anderson, who received a severe burn to his left hand while staying at his maternal aunt’s house when he was thirteen months old. Appellants, Terry and Sandy Anderson, are the child’s parents. Appellees, Jimmy and Wendy Mitts, were married at the time, and Wendy is the child’s maternal aunt. At trial, appellees sought, and were granted, a directed verdict at the close of appellants’ case. We reverse and remand for a new trial.
Sandy Anderson, T.J.’s mother, testified that T.J. was born in 1994, and that he was eight years old at the time of trial. She said that at the time of the burn, September 25, 1995, he was thirteen months old. She explained that at the time T.J.’s hand was burned, they lived in a house owned by, and located next door to, her sister, Wendy. She said that she was painting on September 25; that Wendy asked to take T.J. to her house with her; and that it was not unusual for her to do that. Sandy testified that she was very familiar with the house in which her sister lived. She drew a rough sketch of the layout, showing the location of the couch, television, and wall heater. She said that she was nervous about the heater because she had small children and did not want them to brush up against it, and that she asked Wendy when she was taking T.J. home with her if the heater was on. She said that Wendy responded that it was not. Sandy stated that she learned about the burn just after it happened, that Wendy carried T.J. back to Sandy’s house, and that T.J. was screaming. Sandy said that her husband took both her and T.J. to the emergency room.
Sandy also described the treatment for the burn and the follow-up therapy and surgery that T.J. had to undergo. She explained the disfigurement and the limitations in his use of the burned hand.
Sandy recounted that Wendy had told her that she felt responsible for what had happened. Sandy said that when she allowed T.J. to go to Wendy’s house, she trusted Wendy to look after him and to protect him from getting into the heater. She said that in her opinion, the heater was located in a high-traffic area of the house because it was between the kitchen and the living room where all of the kids played. She also explained that the couch was positioned in such a way that if you were sitting on the couch watching television, your back would be to the heater.
Sandy stated that she and her sister often babysat each other’s children; that she had Wendy’s kids the most because she did not work outside of the home; and that they did not pay each other to babysit.
Wendy testified that when she first arrived home with T.J., the heater was off, and that her husband at the time, Jimmy Mitts, subsequently turned it on. She stated that she recalled reading the instruction manual for the heater and that it provided in part that young children should be carefully supervised when they were in the same room with the heater. She also agreed with Sandy that the heater was located in a high-traffic area and that the manual cautioned against locating the heaters in such areas. She said that she and her husband were on the couch, that the heater was behind them, that they heard T.J. cry out in pain, and that they jumped up and ran to him. She said that it never occurred to her that a child could get his hands up against the white-hot bricks inside the heater. She said that prior to the incident, T.J. had been in her lap on the couch; that her two children came into the room; that T.J. wanted to leave with them to go to a bedroom; that she watched him follow them around the corner to the bedroom; and that she thought that was where he was until she heard him cry. She said that it was probably fifteen to thirty minutes from the time he left her lap until the burn.
Jimmy Mitts testified that when he came home on September 25, T.J. was already at the house; that he turned the heater on; and that he was on the couch with his back to the heater when the injury occurred. He acknowledged being aware of the safety precautions listed in the manual. He also agreed that a person had to be more cautious and careful in supervising a younger child like T.J.
In making his motion for a directed verdict, appellees’ attorney argued that the child was a licensee; that the duty of care owed by appellees to the child as a licensee was not to injure him through wanton or willful conduct, which would require some intentional or utter disregard for the child’s safety; and that the appellants failed to meet their burden of proof. Appellants’ attorney countered that a distinction had to be made when the licensee was a thirteen-month-old baby and appellees had asked to keep him. He contended that they assumed the duty to exercise ordinary care for T.J. The trial court decided that “premises liability law was applicable regardless of the assumed liability concept and regardless of the tender age of the child.” He directed a verdict in favor of the appellees.
Appellants raise two points of appeal: 1) that there was evidence from which a jury could find that the appellees were guilty of ordinary negligence, and 2) that the trial court erred in finding that the standard of care was willful or wanton negligence in granting the motion for directed verdict. These two points of appeal can best be discussed together, and it is more logical to address the appropriate standard of care first.
Appellants contend that the trial court erred in finding that the appropriate standard of care under these circumstances was the duty owed by a landowner to a licensee, i.e., the duty not to cause injury by willful or wanton conduct. Instead, they argue that because T.J. was a thirteen-month-old child, the appropriate standard of care was the duty to exercise ordinary care to avoid injury to the child. We agree.
The trial court’s analysis of this issue went astray when it focused on the child’s status upon the land in determining what duty was owed by appellees. Our research did not reveal an Arkansas case directly on point, but an Alabama Supreme Court case explains the issues well. In Standifer v. Pate, 291 Ala. 434, 282 So. 2d 261 (1973), the Alabama Supreme Court overruled an earlier case in which it had held that a nine-year-old boy, for whom the property owner had undertaken to supervise activities, was a “mere licensee and therefore the duty owed him was not to wilfully or wantonly injure him or not to negligently injure him after discovering his peril.” In overruling that earlier case, the court explained in Standifer:
While the allegations in the instant case are almost the same as those found in our recent case of Nelson v. Gatlin, we think that case must be overruled insofar as it may be inconsistent with the holding in the case at bar.
As noted in the dissent of Mr. Justice Harwood in the Nelson case, the gravamen of the count is negligent supervision. The place at which such supervision occurred should not affect the duty owed the plaintiff. The location of the alleged breach of duty is unimportant, whether it occurred on the plaintiffs premises or elsewhere.
We find such reasoning to be persuasive. As stated in Nelson v. Gatlin, the recognized duty owed by an occupier of land in Alabama to a licensee is not to wilfully or wantonly injure him, or not to negligently injure him after discovering him in peril.
While this is a correct statement of the rule, it must be noted that this states only the duty [a] rising out of and [cjreated by the land occupier-licensee relationship. It in no way abrogates or insulates a land occupier from duties which arise from other relationships between himself and another on his premises. The occurrence of the breach of duty on one’s own premises is a mere fortuity.
Count Three in the instant case alleges a breach of duty arising out of a relationship of volunteer babysitter and child. In [a recent case] involving gratuitous safety inspection of business premises, this court held that a volunteer is under a duty, once he has acted or assumed the duty, to execute the tasks undertaken with reasonable care.
Id. at 436-37, 282 So. 2d at 263 (citations omitted).
Moreover, in a passage from a treatise on torts, The Law of Torts, which discusses children and premises liability, the author explains:
Children, like adults, may be licensees, as for example where they are social guests or with adults who are social guests. In such cases, they are ordinarily owed only the care owed to adult licensees. However, where the defendant owes a duty of care to child trespassers under the rules stated below, he owes the same duty to child licensees. In addition to the limitation on duty implied in the licensee category, some authority holds that with children of tender years who are accompanied by parents, responsibility for their safety shifts to the parents, at least if the parents know of the danger. On the other hand, if the landowner (or anyone else) has been entrusted with and accepted responsibility for supervising a child, he owes a duty of reasonable care to provide supervision regardless of the child’s status on the land.
Dan B. Dobbs, § 236 (West 2001) (emphasis added).
Appellees’ reliance upon Bader v. Lawson, 320 Ark. 561, 898 S.W.2d 40 (1995), is misplaced. In Bader, unlike the instant case, the landowner did not undertake to supervise the care of the eight-year-old child involved in that case. The child came upon his property to jump on a trampoline in his back yard and was injured. It is precisely those types of premises-liability cases for which drawing distinctions in status in order to define duties make sense. Here, however, Wendy undertook the responsibility of caring for the thirteen-month-old child. She picked up the child from his house, where he was under the care of his mother, and took him to her own house. In doing so, she assumed a responsibility that went above and beyond any duty that might arise merely by virtue of the child’s status upon the premises. As explained in the Alabama case, the location of any breach of that higher duty does not affect its analysis.
Consequently, because the trial court employed the wrong standard of care in ruling on the motion, we hold that it erred in directing a verdict in this case. There was sufficient evidence to submit to the jury on the issue of whether appellees breached their duty of ordinary care with respect to the child.
Reversed and remanded.
Gladwin and Robbins, JJ., agree.
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R. Baker, Judge.
Appellant, Cornell D. Jones, was sentenced to two years’ imprisonment in the Arkansas Department of Correction after the trial court revoked his suspended sentence finding that he possessed marijuana with intent to deliver. Appellant argues that the trial court erred in finding, by a preponderance of the evidence, that appellant had violated the terms of his suspended sentence. We agree and reverse.
To revoke probation or a suspended sentence, the burden is on the State to prove a violation of a condition by a preponderance of the evidence, and on appellate review the trial court’s findings will be upheld unless they are clearly against the preponderance of the evidence. Thompson v. State, 342 Ark. 365, 28 S.W.3d 290 (2000). Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation. Id. Since the determination of a preponderance of the evidence turns on questions of credibility and weight to be accorded to the testimony, the appellate court defers to the trial judge’s superior position on review of a revocation of probation or a suspended sentence. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002).
The State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused, that is, constructively possessed. Polk v. State, 348-Ark. 446, 73 S.W.3d 609 (2002); Darrough v. State, 330 Ark. 808, 957 S.W.2d 707 (1997). While constructive possession can be implied when the contraband is in the joint control of the accused and another, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). The State must prove some additional factor linking the appellant to the contraband to prove that the appellant exercised care, control, and management over the contraband, and that the individual knew the matter possessed was contraband. Fultz v. State, 333 Ark. 586, 596, 972 S.W.2d 222, 226 (1998).
Other factors to be considered in cases involving aútomobiles occupied by more than one person are: (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused’s personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion or control over it; (5) whether the accused acted suspiciously before or during the arrest. Bradley, supra. Possession may be imputed when the contraband is found in a place that is immediately and exclusively accessible to the accused and subject to his control. Id. While constructive possession may be established by circumstantial evidence, when such evidence alone is relied on for conviction, it must indicate guilt and exclude every other reasonable hypothesis. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990). We realize that the cases cited for the constructive-possession analysis are cases for conviction, rather than revocation; however, the general analysis is the same with only the burden of proof being different. To the extent that Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998), indicates that a different analysis applies, it has no precedential value.
On May 10, 2002, Officer Napier with the Fort Smith Police Department was patrolling an area known for trafficking drugs and prostitution. He saw two cars parked side by side, facing opposite directions, in the middle of the street. Officer Napier observed a third vehicle approach the two parked in the roadway. The two vehicles did not yield to the traffic, and the other car drove around them. He also witnessed the driver of one car hand something to the driver of the other car. Officer Napier then drove his police unit up behind the car where appellant was a passenger. When he did this, the second vehicle drove away. He waited a moment, and when the car did not move, he turned the blue lights of the unit on, got out of his police unit, walked up to the car and contacted the driver, Marcus Medlock. As he approached the car, he smelled what he thought was the odor of marijuana. The odor was mixed with what smelled like a strong air freshener. His testimony regarding the smell of marijuana was that while he was familiar with the smell of marijuana, he requested the driver’s consent to search the vehicle because of his uncertainty regarding whether he was actually detecting the odor of marijuana. He also commented that he was doubting himself and that the air freshener was “messing with” his sinuses.
Officer Napier obtained the driver’s consent to search the vehicle and found four sandwich bags of marijuana neatly tucked into the ashtray located on the rear portion of the console between the front seats. Based upon his experience, the marijuana was packaged for sale. The driver and appellant denied knowing there was marijuana in the car. Officer Napier found no evidence of recently smoked marijuana nor any container from which air freshener could have been sprayed.
Kristi Johnson, Mr. Medlock’s girlfriend, testified at Mr. Medlock’s revocation hearing that the car and marijuana were hers; however, she couldn’t identify from whom she had bought it, how much or from where it was purchased, or the last name of the woman she was with when she bought it. She also said that she hadn’t smoked any of the marijuana but had left it in the ashtray. Her testimony was admitted at appellant’s hearing because she was unavailable as a witness after invoking her Fifth Amendment privilege.
Mr. Medlock’s mother also testified that on the night of the incident, she borrowed money from her son to buy cigarettes and that the hand-to-hand transaction that Officer Napier witnessed was his handing her the money.
For reversal, appellant relies on Walker v. State, 11 Ark. App. 122, 72 S.W.3d 517 (2002), in which we reversed a conviction for possession of a controlled substance because neither of the two links to appellant raised a reasonable inference that defendant had knowledge of the presence of the contraband. The State argues that this case is distinguishable because the officer testified that he smelled the odor of marijuana. The State further argues that the smell of marijuana is sufficient to imply knowledge of the presence of marijuana. Miller v. State, 68 Ark. App. 332, 6 S.W. 3d 812 (1999).
However, the court in Miller reasoned that it is the knowledge of the existence of the contraband that provides substantial evidence of constructive possession. The court in Miller relied upon the fact that the officer smelled a very strong odor of burned marijuana upon approaching the vehicle. He further noted the odor of burned marijuana on the driver’s person. These facts were held to support the conclusion that appellant in that case had knowledge of the marijuana. Additionally, in Miller, the driver of the vehicle testified that the appellant was present in the car when the marijuana was smoked, but did not know that the other two passengers had purchased the cocaine. The court held that the State did not present sufficient evidence of any factor, other than occupancy, to establish constructive possession of cocaine and reversed the conviction for possession of cocaine.
We find Miller distinguishable from this case. Here, the officer’s testimony regarding the smell of marijuana consisted of the following:
When I got to the car I noticed a smell coming from inside the car. I believe I could smell marijuana coming from inside the vehicle, but what it smelled like someone in the vehicle had done is sprayed some air freshener, I mean just really strong air freshener coming like they had just sprayed inside of the car. That was mixed with what 1 believed to be marijuana inside the vehicle.
Like I said, it was mixed with the air freshener, so I was pretty confident that it was marijuana. But then again, I was doubting my own self because of the air freshener that had been sprayed. It was kind of messing with my sinuses. (Emphasis added.)
The officer later testified on cross-examination that he was not one hundred percent sure that what he smelled was marijuana and that is why he had requested consent to search rather than searching based on probable cause to believe the vehicle contained contraband. The officer’s uncertainty regarding the smell of marijuana does not support the finding of constructive possession.
Our supreme court’s decision in Kastl v. State, 303 Ark. 358, 796 S.W.2d 848 (1990), requires that “there must be some additional link between the accused and the contraband” over and above evidence showing joint occupancy of a vehicle containing the contraband. In Kastl, the Arkansas Supreme Court found the State’s evidence that there were beer cans beside the vehicle, that beer was found in the immediate proximity of the appellant in the vehicle, and that there was the smell of beer on the appellant’s person were not sufficient to establish constructive possession. See also Cerda v. State, 303 Ark. 241, 795 S.W.2d 358 (1990) (reversing a criminal conviction where the contraband was not in plain view, on appellant’s person, or in his immediate proximity, and appellant was not the owner of the vehicle or in control of it, even though appellant was extremely nervous and he and the joint occupant told conflicting stories).
Here, the only link between the accused and the contraband was the possible smell of marijuana. Although the officer was familiar with the smell of marijuana, he was not certain that what he smelled was marijuana. There were no other identifiable factors, such as smoke or ashes, to indicate that marijuana had recently been smoked. The marijuana was not found on appellant’s person or with his personal effects, and he did not own the vehicle in question or exercise control over it. Therefore, we find that the evidence is insufficient to show that the appellant constructively possessed the marijuana.
Accordingly, we reverse.
Stroud, CJ., and Roaf, J., agree.
Neal, J., concurs.
Vaught and Crabtree, JJ., dissent.
Palmer was a split decision with three judges affirming and therefore is not entitled to precedential weight. See France v. Nelson, 292 Ark.219, 221, 729 S.W.2d 161, 163 (1987) (citing Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 233, n. 7 (1987) (an affirmance by an equally divided court is not entitled to precedential weight); Neil v. Biggers, 409 U.S. 188 (1972) (an affirmance by an equally divided Court is not entided to precedential weight)).
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J. Gladwin, Judge.
Southwestern Bell Telephone Company filed suit in Benton County Circuit Court against Kevin Garner, individually, and d/b/a Willow Springs Excavating, alleging negligence after one of appellee’s employees damaged its fiber-optic telephone cable. Appellant sought $48,553.65 in damages related to the repair of the cable and loss of use. The trial court denied appellee’s motion for a directed verdict on the issue of liability but granted his motion on the issue of loss of use. The liability issue was submitted to the jury resulting in a verdict in favor of appellee. Appellant raises two points on appeal to this court: (1) that the jury’s verdict should be reversed because appellant presented sufficient evidence to support its claim of negligence; and (2) that the trial court erred as a matter of law in finding that loss of use is not an appropriate element of damages. We affirm.
Larry Stroud, appellant’s construction manager, testified that on April 9, 2001, he was contacted because there had been a fiber failure at a construction site near the intersection of SW 30th Street and J Street in Bentonville. Stroud testified that appellee’s employee, who was operating a front-end loader, had dug down to a fiber-optic cable and severed it. Stroud later admitted that it was appellant’s own employees who had dug around the place where the cable had been cut in order to assess the damage. Stroud also indicated that only the frayed end of the cable was visible when he arrived at the site and that the ground was level around the cable. Stroud insisted, however, that the cable had been buried at least twenty-eight to thirty-two inches deep.
Kevin Garner, the owner of Willow Springs Excavating, testified that he sent Bill Scallorn to the site with a front-end loader to remove the loose top soil that had been piled up at the location. He stated that he did not call One Call Center to locate the cable prior to working on the site that day even though Arkansas law requires contacting it prior to performing excavation activities. Garner stated that even if he had called One Call Center, he would not have done the job differently because he was not “excavating” as it is defined. He stated that his employee was not digging but was only hauling away the dirt piled on top of the existing grade. Further, he stated that he assumed that the cable would be buried at a certain depth. Garner acknowledged that his employee had cut the cable. He also acknowledged that the bucket on the front-end loader would “drift” downward, but he indicated that it would only drift a couple of inches into the ground.
Johnny Carter, appellant’s manager of risk-management services, testified as to the costs that appellant incurred as a result of its damaged cable. He stated that the hourly labor rate was $84.64; that 350 feet of cable was replaced at the cost of $11.77 per foot; that two hand holes were put in at $400.78 apiece; that two closures that went into each hand hole were $728.74; and that a contractor was hired to dig up the other end of the cable which cost appellant $1,064.75. Carter also claimed $28,844.64 for loss of use and explained in some detail how he arrived at that figure. In addition, Carter testified that the phone lines were down for six and one-half hours that day but that he had charged for a full day. Further, Carter stated that, considering the amount of voltage on the cable in question, the National Safety Code requires that it be a minimum of twenty-four inches below the ground. Carter testified that alternate phone service was not made available to customers and that customers did not get any credit on their phone bill reflecting the interruption of service. Carter stated that, in other words, appellant did not lose any money as a result of its damaged cable.
Michael Gartrell, manager of cable maintenance for appellant, testified that when he arrived at the site, a hole had been dug and that he and other employees kicked around in the dirt to find the cable and pull it out of the hole. He then conceded that they had used shovels to uncover the cable. Gartrell testified that the cable was buried at least two feet underground. He surmised that the cable had been hooked by the front-end loader and that the cable had been stretched and pulled close to the surface. Gartrell testified that a front-end loader is not for digging but that the bucket has “teeth” that stick into the ground and can scoop out a hole. Gartrell stated that the hole was about three- or four-feet wide and conceded that the bucket on the front-end loader might actually be eight-feet wide.
After appellant rested its case, appellee moved for a directed verdict. The trial court denied the directed-verdict motion on the issue of liability but granted a partial directed verdict on the issue of loss of use. Appellee then presented Bill Scallorn’s testimony.
Scallorn, appellee’s employee who operated the front-end loader that day, testified that he was removing piles of dirt by running the bucket of his front-end loader along the ground. He stated that he was not digging and was not changing the grade of the ground. Scallorn, who acknowledged cutting the cable, testified that he saw the cable sticking out of the ground and that the ground was level around it. He stated that he contacted his employer and left the site to empty his dump truck that was full of dirt. Scallorn stated that when he got back to the site, appellant’s employees were there digging and exposing the cable. He maintained that the front7end loader could not have dug a hole the size of the one present in photographs that were introduced into evidence because the bucket was about eight-feet wide and any hole the front-end loader could have dug would have been spread back some distance. He stated that he would have dug only one or two inches into the dirt simply because the ground was not level.
Neither party made any motions after appellee rested its case. After deliberation, the jury returned a verdict for appellee. Appellant filed a timely notice of appeal.
Appellant argues on appeal that no reasonable person could conclude that appellee was not “excavating” as that term is defined at Ark. Code Ann. § 14-271-102(4) (Repl. 1998). Furthermore, appellant contends that appellee was negligent in not having contacted One Call Center to locate the phone line, which it was required to do by law, and that this conduct proximately caused appellant’s cable to be cut.
Appellant’s sufficiency argument is not preserved for review. Arkansas Rule of Civil Procedure 50(e) (2000) provides that “when there has been a trial by jury, the failure of a party to move for a directed verdict at the conclusion of all the evidence, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.” In Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994), plaintiff Doris Mikel had filed a suit in ejectment against defendant Hubbard Marine Services, Inc., and the jury returned a general verdict for the defendant. On appeal to the supreme court, Mikel argued that the jury’s verdict was “not supported by a preponderance of the evidence.” The supreme court held that the plaintiffs claims regarding the sufficiency of the evidence were barred because Mikel had not moved for a new trial and had not moved for a directed verdict at the conclusion of all the evidence. The supreme court, citing Ark. R. Civ. P. 50(e), concluded that because the sufficiency of the evidence was never raised in the trial court by the plaintiff, she could not raise it for the first time on appeal. We must reach the same conclusion in the case • at bar because appellant never challenged the sufficiency of the evidence at any time in the trial court. Accordingly, we affirm the jury’s verdict.
Next, appellant contends that the trial court must have confused actual or out-of-pocket damages with damages related to loss of use because it should recover damages to compensate for its loss of its property right. In view of our affirmance of the jury’s verdict that appellee’s conduct did not constitute negligence, we do not address the issue of damages. See Miller v. Jasinski, 17 Ark. App. 131, 705 S.W.2d 442 (1986).
Affirmed.
Pittman and Baker, JJ., agree.
On June 5, 2003, die Arkansas Supreme Court handed down Southwestern Bell Telephone Company v. Harris Company of Fort Smith, 353 Ark. 487, 109 S.W.3d 637, holding that Arkansas law does not recognize “loss-of-use” damages for personal property other than motor vehicles.
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Neal, Judge.
This appeal concerns the trial court’s granting of specific performance of an oral agreement to convey real property. We reverse.
Appellee Edward Malone is the former son-in-law of appellants T.J. Smith and Earnestine Smith. Appellee was married to appellants’ daughter Patricia until her death in May 2001. In ■March 1987, appellants acquired 10.5 acres of real property in Saline County. The parties had an agreement to purchase the property together so that each couple would own a five-acre tract and pay one-half of the purchase price. In May 1990, appellants conveyed two acres of the property to appellee and Patricia as a gift.
Appellants filed suit in March 2001, alleging that appellee had built a shed that encroached upon their property, placed a natural gas line across the property, and destroyed a fence on their property. Appellants sought damages for both the encroachments and for the destruction of the fence, injunctive relief in the form of an order requiring removal of the encroaching shed, and interest, attorney’s fees, and costs. Appellee answered, denying the material allegations of the complaint. Appellee also filed a counterclaim, alleging that there was an agreement that appellee would pay one-half of the purchase price and own one-half of the property, and seeking specific performance of the agreement by compelling appellants to convey the remaining 3.25 acres to appellee. Appellants responded to the counterclaim by denying the material allegations and asserting the affirmative defenses of the statute of frauds, the statute of limitations, and laches.
Appellant Earnestine Smith testified that she and her husband purchased the property in 1987 from Kenneth and Betty Isbell, paying a $500 down payment and signing a note for monthly payments of $188.08. She testified that, at the time the property was purchased, appellants had an agreement with appellee and Patricia Malone that appellee could acquire one-half of the property and pay one-half of the purchase price. She further testified that appellants paid the note off early, due to the maturing of a certificate of deposit, but that neither appellee nor Patricia Malone made any payments towards the purchase price. Ms. Smith testified that, in 1990, two acres were conveyed to appellee and that the deed was in the nature of a gift to her daughter. She also testified that appellee did not object to receiving only two acres instead of five because appellee “could not afford to purchase the full five acres.” She stated that a pond was built between appellants’ and appellee’s homes and admitted that appellee and Patricia Malone took care of building the pond.
Ms. Smith also testified that the 1990 conveyance was the result of an agreement that appellee would not have an interest in the three acres that were not conveyed at that time. She stated that, between 1990 and Patricia Malone’s death in 2001, neither appel-lee nor Patricia Malone made any claim to the disputed three acres and that, since 1990, she paid the taxes on approximately eight acres without contribution from appellee. Ms. Smith testified that, in 1997, she paid Patricia Malone $5,344.43 for the pond and a fence; that the pond was for family use and for her husband’s enjoyment after his stroke; and, that half of the pond was on land not claimed by appellee.
Appellee Edward Malone testified that his wife and appellant T.J. Smith were the ones who came up with the idea of jointly purchasing the property. He testified that it was the parties’ intention to purchase the ten acres and divide it equally; that he had built a shed on the property, thinking that he owned the entire five acres; and, that the 1990 conveyance was a result of his being audited by the IRS and appellants fearing that the IRS would place a lien on the entire five acres. He also testified that he had the pond situated so that one-half of it was on the five acres he claims.
Appellee further testified that he learned during a conversation with Earnestine Smith that took place approximately one month after his wife’s death that he did not own the entire five acres. He stated that he asked Mrs. Smith to survey the property and divide it equally but the request was refused. He testified that he believed that his wife had paid for half of the property and that, although he did not have any personal knowledge or proof that the payments had been made because his wife had handled the original 1987 transaction, he would immediately pay for his half if given the opportunity. He admitted that, between 1990 and 2001, he did not ask for a deed to the disputed three acres or object to having received only two acres and that he did not pay taxes on the disputed property.
After a hearing, the trial court ruled from the bench and found that the parties had an agreement to divide the property; that appellee had not made any payments toward that agreement; that the parties still contemplated that the agreement could be performed after the two acres were conveyed to appellee in 1990; and that appellee had thirty days from the date of the hearing to pay one-half of the purchase price plus interest and one-half of the property taxes to appellants, who were to execute and deliver a warranty deed for the remainder of the property. The trial court further ruled that, in the event that appellee failed to do so, his interest in the three acres was to be forfeited. Appellants were awarded judgment for $240 for the value of the fence destroyed by appellee. An order memorializing these findings was entered on October 15, 2002. Appellee has tendered a check in the sum of $19,916.65, together with a warranty deed, in compliance with the trial court’s order. This appeal followed.
Appellants raise six points on appeal: that the agreement is unenforceable due to the statute of frauds; that the alleged agreement is unenforceable due to the lack of specification of material terms; that the statute of limitations excused any obligation of performance; that the agreement became unenforceable with the death of Patricia Malone; that the agreement was merged into the conveyance of two acres to appellee in 1990; and that the trial court erred in refusing to admit testimony concerning the 1990 transaction. We find the statute of frauds issue to be determinative and pretermit discussion of the other issues.
Whether or not specific performance should be awarded in a particular case is a question of fact for the trial court; on appeal, the question before the appellate court is whether the decision to grant specific performance was clearly erroneous. Dossey v. Hanover, Inc., 48 Ark. App. 108, 891 S.W.2d 67 (1995). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. City of Van Buren v. Smith, 345 Ark. 313, 46 S.W.3d 527 (2001).
Appellants first argue that the agreement does not satisfy the statute of frauds. We agree. The statute of frauds, Ark. Code Ann. § 4-59-101 (a)(4) (2001), provides as follows:
(a) Unless the agreement, promise, or contract, or some memorandum or note thereof, upon which an action is brought is made in writing and signed by the party to be charged therewith, or signed by some other person properly authorized by the person sought to be charged, no action shall be brought to charge any:
(4) Person upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them[.]
We recognize, of course, that partial performance of a contract by payment of a part of the purchase price and placing a buyer in possession of land pursuant to an agreement of sale and purchase is sufficient to take the contract out of the statute of frauds. Johnston v. Curtis, 70 Ark. App. 195, 16 S.W.3d 283 (2000); Langston v. Langston, 3 Ark. App. 286, 625 S.W.2d 554 (1981); Sossamon v. Davis, 271 Ark. 156, 607 S.W.2d 405 (Ark. App. 1980). The possession of the property by the purchaser, together with the making of valuable improvements on the property, has also been held sufficient to take the agreement out of the statute of frauds. French v. Castleberry, 238 Ark. 1038, 386 S.W.2d 482 (1965); Harrison v. Oates, 234 Ark. 259, 351 S.W.2d 431 (1961); Phillips v. Jones, 79 Ark. 100, 95 S.W. 164 (1906). The improvements must be more than routine maintenance. French, supra. It is necessary to prove both the making of the oral agreement and its part performance by clear and convincing evidence. Johnston v. Curtis, supra.
The trial court did not expressly find that there was sufficient partial performance to take the oral agreement, admitted by appellants, out of the statute of frauds. However, such a finding is implicit in the trial court’s grant of specific performance. The trial court also found that appellee did not pay any money toward the purchase price of the property. It is undisputed that appellee was in possession of two acres of the five acres in dispute. However, appellants gave appellee and Patricia Malone two acres as a gift in 1990. This gift was inconsistent with the oral contract for the purchase of the property. In order for possession to be sufficient, it must be solely referable to the oral agreement. French, supra; Sossamon, supra. Further, there was no showing that appellee possessed the disputed three acres other than his having a shed extend some two feet onto the three acres. Therefore, appellee’s possession is not sufficient part performance to remove the case from the statute of frauds.
Appellee argues that he made improvements to the land in the form of a pond and a shed which, when coupled with his possession, takes the agreement out of the statute of frauds. We believe that the construction of the pond does not amount to an improvement as to the three acres; it is located one-half on appellee’s two acres and one-half on appellants’ property. Further, it was constructed for the benefit of appellant T.J. Smith following his stroke. The extension of the shed some two feet onto the disputed three acres is de minimis. Appellee has not cited us to a single case in which partial performance has been found sufficient to satisfy the statute of frauds without some payment to the sellers. See Stooksberry v. Pigg, 172 Ark. 763, 290 S.W. 355 (1927) (holding that statute of frauds is not satisfied where the only performance was possession and there had been no payments or valuable improvements made). The trial court clearly erred in ordering specific performance.
Reversed.
Griffen, J., agrees.
Robbins, J., concurs.
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ohn B. Robbins, Judge.
Appellant Danny Grupa appeals his convictions for manufacturing methamphetamine and possession of methamphetamine with intent to deliver. Appellant purportedly entered conditional guilty pleas to these charges. On appeal, appellant asserts that there lacked probable cause upon which to issue a warrant to search his house, and that therefore, the trial court erred in denying his motion to suppress.
First, we must determine whether we have jurisdiction to hear this appeal. When a defendant pleads guilty to a charge, he or she waives the right to appeal that conviction. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998). For relevant purposes before us, only a conditional plea pursuant to Ark. R. Crim. P. 24.3(b) enables a defendant to retain the right to appeal an adverse suppression ruling. Ark. R. App. P. — Crim. 1(a) (2002); Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999).
Rule 24.3 of the Arkansas Rules of Criminal Procedure states in pertinent part that:
(b) With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
The supreme court requires the written reservation of the right to appeal to be entered contemporaneously with the plea. See Barnett v. State, supra. The supreme court has interpreted Ark. R. Crim. P. 24.3(b) to require strict compliance with the writing requirement in order for the appellate court to obtain jurisdiction. McMullen v. State, 79 Ark. App. 15, 82 S.W.3d 827 (2002). Absent strict compliance, the appellate court acquires no jurisdiction to hear an appeal, even when there has been an attempt at trial to enter a conditional plea. Id.
In the present situation, there was an oral entry of guilty pleas and a judgment and commitment order filed of record. In the in-chambers plea on September 10, 2002, the prosecutor, the trial judge, defense counsel, and the defendant were present. Defendant Grupa verbally entered guilty pleas with the express reservation of the right to appeal the denial of his motion to suppress, the trial judge verbally confirmed that reservation, and the prosecutor verbally assented to the pleas. The judgment and commitment order reflected in writing that for each crime appellant now appeals, “Defendant voluntarily, intelligently, and knowingly entered a plea directly to the court of a conditional plea of guilty with the right to appeal the Court’s denial of his motion to suppress.” The order also recited that “Defendant was informed of the right to appeal.” The order was signed by the circuit judge, the prosecutor, and defense counsel on September 16, 2002. The order was filed on September 20, 2002. Even though there was a writing, specifically reserving the right to appeal the suppression issue, signed by the judge and the attorneys for each side, commemorating the oral entry of guilty pleas reserving this right six days earlier, we glean from the cases on this subject that the writing was not “contemporaneous.”
In Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999), the supreme court dismissed an appeal from a purported conditional plea for lack of strict compliance with Rule 24.3, in part due to lack of a “contemporaneous” writing. Barnett entered his guilty plea on January 5, 1998; however, the only date on the relevant plea statement was the date that it was filed, the following day on January 6. “A signed plea statement entered after the guilty plea is not a contemporaneous writing and thus does not demonstrate strict compliance with Rule 24.3(b).” Id. at 170. See also Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996). Given the holding in Barnett, supra, that a writing filed one day after the oral entry of a guilty plea is not “contemporaneous,” then the judgment and commitment order signed six days later in the present appeal is likewise not a contemporaneous writing. Appeal dismissed for want of appellate jurisdiction.
Dismissed.
Pittman and Roaf, JJ., agree.
An examination of the requirements of Rule 24.3(b) is found in Judge Wendell Griffen’s concurring opinion to Hill v. State, 81 Ark. App. 178, 100 S.W.3d 84 (2003). Numerous cases are cited in which appeals have been dismissed following attempts to enter compliant conditional pleas. Judge Griffen stated:
After a thorough review of the applicable case law, one is left with the impression that, to be effective, a conditional guilty plea agreement must be evidenced by a contemporaneous writing which unequivocally declares that the defendant pleads guilty, but expressly reserves the right to appeal the trial court’s decision to deny a suppression motion as permitted by Rule 24.3(b). Furthermore, such conditional guilty-plea agreements should bear the signature of the defendant and defense counsel, and demonstrate the prosecutor’s consent and the court’s approval as proven by their signatures and appropriate text in the document. Until our supreme court declares that this is what must be done to constitute strict compliance with Rule 24.3(b), perhaps supplemented by a model form that trial courts, prosecutors, and defense counsel can use when defendants indicate that they want to enter conditional guilty pleas, trial courts, prosecutors, defense counsel, defendants, and appellate judges will continue to trip and stumble.
Id. at 189-90, 100 S.W.3d at 91-92.
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Neal, Judge.
This is the second time that this medical-negligence action has been before this court. Following remand, the trial court granted appellees’ motion for summary judgment on appellant’s informed-consent and medical-battery claims. We affirm.
On March 20, 1990, appellees Dr. James Arthur and Dr. Allan Gocio performed an anterior cervical diskectomy and fusion surgery on appellant Gail Parkerson. During the surgery, appellees used an artificial block as graft material to surgically join appellant’s vertebrae. The graft material used by the appellees was a product called “Orthoblock,” which is a ceramic material made of a dense form ofhydroxylapatite. Orthoblock, at the time of the procedure, had neither been developed by its manufacturer, Calcitek, Inc., nor approved by the Food and Drug Administration (FDA), for use in anterior cervical diskectomy procedures. Following the surgery appellant began to experience pain in her left arm and shoulder, and she was diagnosed on April 9, 1990, with postoperative cervical nerve root swelling and pain. Thereafter, appellant received pain medication prescribed by Dr. Gocio and was readmitted to St. Joseph’s Regional Fiealth Center for physical therapy and pain control.
On June 15, 1992, appellant filed a medical-negligence suit against appellees alleging that they were negligent in their March 20,1990, surgical performance and their follow-up medical care of her during and after the surgery. The trial court granted summary judgment on all claims to appellees. This court reversed the summary judgment on appellant’s informed-consent and battery claims, holding that an affidavit submitted by appellant’s expert witness, Dr. Cecil Parkerson , was sufficient to withstand summary judgment on the battery and informed-consent claims. Parkerson v. Arthur, No. CA00-1110 (Ark. App. June 27, 2001). This court affirmed the summary judgment on the remainder of appellant’s claims. Id.
Following remand, on February 14, 2002, appellees filed a “Renewed Motion for Summary Judgment” after learning of the death of Dr. Cecil Parkerson. In the motion, appellees asserted that they were entitled to summary judgment because appellant had not identified another expert to testify; that Dr. Cecil Parkerson’s affidavit submitted in opposition to the prior motion for summary judgment was inadmissible to prove a fact at issue at trial; and that appellant could not meet her burden of proving an essential element of her case at trial. Appellant filed a motion seeking to extend the time in which to respond to appellees’ motion for summary judgment but did not file a motion to compel discovery. By order filed on March 8, 2002, the trial court extended the time for appellant to respond to the motion for summary judgment until June 1, 2002. In a motion filed on June 3, 2002, appellant requested dismissal of appellees’ motion for summary judgment and raised the issue of appellees’ failure to answer the discovery. Appellant filed her response to the motion for summary judgment that same day. The trial court granted appellees’ motion and entered its order for summary judgment on June 13, 2002.
Appellant, appearing pro se, argues two issues on appeal (1) that the trial court erred in acting upon appellees’ request for a trial setting made after this court delivered its opinion but prior to the issuance of the mandate to the trial court, and (2) that the trial court erred in granting appellees’ renewed motion for summary judgment.
In her first point, appellant argues that the trial court acted without jurisdiction in acting upon appellees’ request for a trial setting, which was sent to the trial judge between the time this court delivered its opinion on June 27, 2001, and the time the mandate was filed in the lower court on September 10, 2001. We affirm on this point.
It is axiomatic that this court takes jurisdiction of a matter once the record on appeal is filed with the clerk of the supreme court and retains jurisdiction until the mandate is issued to the lower court. Barclay v. Farm Credit Servs., 340 Ark. 65, 8 S.W.3d 517 (2000). Even though appellees requested the trial setting during the time between the delivery of this court’s opinion and the filing of the mandate, the trial court did not actually set the trial date until November 29, 2001, after the mandate was filed with the trial court. The action of which appellant complains — the July 18, 2001, letter from the trial court’s case coordinator to the trial court clerk — was in the nature of inquiring whether a courtroom would be available on two possible trial dates. Further, appellant did not make a formal objection to the setting. Timothy Brooks, an attorney whom appellant consulted about representing her, informed the court that he was considering the representation and anticipated entering an appearance. His letter requested on appellant’s behalf that the trial not be set on the March 2002 dates reflected in the court’s notice. His letter also made it clear that he was not entering his appearance as attorney for appellant at that time. The trial court reaffirmed the March 7-8, 2002, trial dates in a letter dated January 7, 2002. Thereafter, appellant filed a motion for continuance of the trial on February 12, 2002. On February 21, 2002, the trial court granted the motion for continuance and rescheduled the trial for October 28 through November 1, 2002. While we do not believe that appellant suffered any prejudice or that the trial court acted while it was without jurisdiction, the granting of the continuance removed any possible prejudice appellant may have suffered.
In her second point, which is divided into three subpoints, appellant argues that the trial court erred in granting summary judgment to appellees. We have ceased referring to summary judgment as a “drastic” remedy. We now regard it simply as one of the tools in a trial court’s efficiency arsenal; however, we approve the granting of the motion only when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the non-moving party is not entitled to a day in court, i.e., when there is no genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law. Parkerson v. Lincoln, 347 Ark. 29, 61 S.W.3d 146 (2001). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Id. On appellate review, we determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. Id.
For her first subpoint under this issue, appellant argues that summary judgment was improper because there was still discovery unanswered by appellees. Whether to grant a continuance to allow for further discovery is a matter within the discretion of the trial court. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995); Jenkins v. International Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994); Mills v. Crone, 63 Ark. App. 45, 973 S.W.2d 828 (1998). In order for this court to reverse, appellant must show that the trial court abused its discretion and that the additional discovery would have changed the outcome of the case. Alexander, supra.
Appellant has not demonstrated that the trial court abused its discretion in granting the summary judgment prior to the completion of all discovery or that additional discovery would have changed the outcome of the case. See Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). Appellant filed a motion seeking to extend the time in which to respond to appellees’ motion for summary judgment but did not file a motion to compel discovery. In that motion, couched in terms of Ark. R. Civ. P. 56(f), appellant relied upon the fact that she was unrepresented and needed time to consult an attorney. It is only in her affidavit filed in support of her motion for additional time to respond that appellant states that she submitted discovery that remained unanswered. She also attached appellee Gocio’s answers to the discovery, which contained objections signed by’appellees’ counsel. As noted earlier in this opinion, by order filed on March 8, 2002, the trial court extended the time for appellant to respond to the motion for summary judgment until June 1, 2002. In a motion filed on June 3, 2002, appellant requested dismissal of appellees’ motion for summary judgment and formally raised the issue of appellees’ failure to answer the discovery. Appellant filed her. response to the motion for summary judgment that same day. The trial court granted the motion for summary judgment by order filed on June 13, 2002, without addressing appellant’s discovery issues.
Appellant has waived this issue by failing to obtain a ruling on the issue. The burden of obtaining a ruling is on the movant, and objections and matters left unresolved in the trial court are waived and may not be relied upon on appeal. Crawford v. Lee County Sch. Dist., 64 Ark. App. 90, 983 S.W.2d 141 (1998).
For her second subpoint, appellant argues that Dr. Cecil Parkerson’s affidavit can still be considered as creating a genuine issue of material fact in order to defeat the renewed motion for summary judgment. Appellees, in their renewed motion for summary judgment, alleged that, following Dr. Parkerson’s death, appellant failed to designate another medical expert and that, without another expert, there was no expert medical testimony on the issue of informed consent. Appellees asserted that they were therefore entitled to summary judgment.
Appellant’s argument is that, because this court determined that Dr. Parkerson’s affidavit was sufficient to raise an issue of material fact, the trial court erred in dismissing her suit on summary judgment. Appellant is arguing, however inarticulately, that the law-of-the-case doctrine precludes the renewed motion for summary judgment. The venerable doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. The doctrine serves to effectuate efficiency and finality in the judicial process. Frazier v. Fortenberry, 5 Ark. 200 (1843); see also 5 Am. Jur. 2d Appellate Review § 605 (1995). The supreme court has said the following with regard to the law-of-the-case doctrine:
The doctrine provides that a decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998). On the second appeal, the decision of the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented. Griffin v. First Nat’l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994).
Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 346, 47 S.W.3d 227, 237 (2001). The rationale for the adherence to a strict application of the rule — the avoidance of the disorder and unpredictability that would follow a departure from the doctrine — has not changed. However, the circumstances have changed with the death of Dr. Parkerson, and under those circumstances, the law-of-the-case doctrine has no application. See Ragland v. Pittman Garden Ctr., 299 Ark. 293, 772 S.W.2d 331 (1989); Dickson v. Board of Dirs. of Long Prairie Levee Dist., 151 Ark. 22, 235 S.W. 45 (1921); Hartwick v. Hill, 77 Ark. App. 185, 73 S.W.3d 15 (2002). The supreme court in Ragland pointed out that the issues were different on the two appeals and quoted Dickson, using this language:
In our judgment a decision rendered on appeal determines only such questions as are presented for decision and are decided as essential to a just disposition of the pending appeal. The language of a decision is always to be understood by applying it to the facts of the case decided and construing it with reference thereto. Little Rock Trac. & Elec. Co. v. Kimbro, 75 Ark. 211, 87 S.W. 121.
299 Ark. at 297, 772 S.W.2d at 333.
One way a defending party can obtain summary judgment is by showing that the plaintiff lacks proof on a material element of his claim. Calcagno v. Shelter Mut. Ins. Co., 330 Ark. 802, 957 S.W.2d 700 (1997); Bushong v. Garman Co., 311 Ark. 228, 843. S.W.2d 807 (1992); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988). The death of Dr. Parkerson is not insignificant. Before Dr. Parkerson died, his affidavit was not itself admissible, but it established that there was evidence — his opinion to be given in live testimony — that would be admissible at trial. His affidavit no longer meets the requirements of Rule 56(e) because a dead person is not a competent witness. Faced with this situation, appellees renewed their motion, supplemented by proof that the affiant is deceased. See Clark v. Progressive Ins. Co, 64 Ark. App. 313, 984 S.W.2d 34 (1998). That required appellant to file a new affidavit or concede that the motion no longer could be opposed by competent testimony at trial. Because appellant failed to oppose appellees’ renewed summary judgment with an affidavit from a competent witness complying with Ark. Code. Ann. § 16-114-206 (1987), appellees were entitled to summary judgment on the renewed motion.
For her third subpoint, appellant argues that she was not required to present expert medical testimony in order to survive a motion for summary judgment. Appellant relies on Aronson v. Harriman, 321 Ark. 359, 901 S.W.2d 832 (1995), for support of her argument. However, Aronson actually supports the trial court’s ruling. This court cited Aronson in its opinion in the first appeal for the proposition that expert medical testimony is always required for the jury to determine whether the alleged failure to disclose constituted a breach of the physician’s duty to disclose. Parkerson v. Arthur, supra, slip opinion at 11.
Under Ark. Code Ann. § 16-114-206(b) (1987), a plaintiff must “always” provide expert medical testimony from which a jury could determine whether the medical-care provider breached his or her duty to disclose information necessary for the informed consent to be given. Fuller v. Starnes, 268 Ark. 476, 479, 826 S.W.2d 88, 90 (1980). In Fuller, the supreme court upheld a directed verdict in favor of a medical-care provider where plaintiffs failed to produce expert medical evidence establishing a disclosure standard from which a jury could assess the reasonableness of the medical-care provider’s conduct. In Eady v. Lansford, 351 Ark. 249, 92 S.W.3d 57 (2002), and Grice v. Atkinson, 308 Ark. 637, 826 S.W.2d 810 (1992), the supreme court reaffirmed Fuller in upholding the decisions of trial courts to direct a verdict in favor of the medical providers where the patient’s expert witness merely stated in a conclusory fashion that the information that the doctors had provided the patient in order to obtain consent for surgery was inadequate.
Also, in Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1996), the trial court granted summary judgment in favor of a medical provider when the plaintiffs disclosed expert “could not offer expert testimony, as required by section 16-114-206(b), on the issue of informed consent.” The supreme court affirmed, holding that, in the absence of medical testimony on this issue, the plaintiff “had not met her burden of proof and that no material issue of fact existed with respect to informed consent which required presentation of the case to the jury.” Brumley, 320 Ark. at 318, 896 S.W.2d at 865.
In order to survive summary judgment on her informed consent claim, appellant was required to provide expert testimony. She failed to do so. Appellant’s informed-consent claim was correctly dismissed by the trial court on appellees’ motion for summary judgment. Once appellant’s informed-consent claim was dismissed, there were no longer any genuine issues of material fact to be resolved in appellant’s battery claim, because that claim is based on appellant’s assertion that she was not adequately informed of the risks or the experimental nature of the surgery using the Orthoblock device and on the assertion in Dr. Cecil Parkerson’s affidavit that Dr. Gocio appeared drugged and “out of it” during surgery.
Affirmed.
Stroud, C.J., agrees.
Roaf, J., concurs.
Dr. Cecil Parkerson is appellant’s father.
The pro se appellant receives no special consideration on appeal. See Gibson v. State, 298 Ark. 43, 764 S.MK2d 617 (1989).
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Crabtree, Judge.
In this workers’ compensation case, the Commission affirmed and adopted the decision of the Administrative Law Judge denying permanent disability benefits, additional medical treatment, and second-injury fund liability. On appeal, the appellant, Teddy Wren, claims that the Commission’s decision was not supported by substantial evidence. We affirm.
Appellant worked for the appellee, Sanders Plumbing Supply, for eight years as a handyman and delivery person. On September 3, 1998, as he was delivering a load of supplies to a customer, his vehicle was rear-ended by another vehicle. As a result, appellant sustained a neck and back injury. Appellee accepted appellant’s injury as compensable and paid his medical expenses along with temporary-total disability benefits. However, appellant alleged that he was permanently and totally disabled as a result of this motor-vehicle accident. Appellant remained off work for approximately three months until he was released by his physician to return to work at full duty, on December 14, 1998. He continued to work until January of 1999.
In reviewing decisions from the Workers’ Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001). Substantial evidence exists if reasonable minds could reach the same conclusion. Daniels v. Arkansas Dep’t Human Servs., 77 Ark. App. 99, 72 S.W.3d 128 (2002); Lee v. Dr. Pepper Bottling Co., 74 Ark. App. 43, 47 S.W.3d 263 (2001). When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Clardy v. Medi-Homes LTC Serv. LLC, 75 Ark. App. 156, 55 S.W.3d 791 (2001).
On September 28, 1998, just weeks after the accident, Dr. Terence Braden recommended that appellant return to light duty work. The next day, Dr. Wilbur Giles evaluated appellant and concluded, “I do not foresee that he is in need of any surgical intervention.” Dr. Giles reviewed appellant’s MRI and found only a mild disc bulge with no overt herniation. Dr. Giles was the only neurosurgeon who evaluated appellant regarding this injury. Dr. Braden then released appellant to return to full duty on December 14, 1998, without an impairment rating.
Previously Dr. Braden had ordered a functional capacity evaluation. However, the examiner reported that appellant failed to give maximum effort and the results of the test were considered invalid. In a chart note dated December 1, 1998, Dr. Braden stated:
I do not agree with the final assessment in the non-material handling test where it is recommended that [appellant] never do any reaching, bending, squatting, etc. These are based upon submaximal results and subjective complaints that are not objectively measured since they were not completed during his evaluation.
Dr. Braden then ordered an MMPI evaluation. However, appellant’s wife assisted him during the evaluation, which was contrary to accepted testing procedure. Therefore, the results of that test were also considered invalid. Dr. Braden concluded that appellant’s September 3, 1998 injury did not impede his ability to return to work. When he released appellant to return to work, Dr. Braden stated:
I have reviewed [appellant’s] evaluations, examinations, his Functional Capacity Evaluation, and I can find no objective evidence to explain his marked subjective complaints of pain. They appear to be psychological in origin and not related to the injury that he reports to have sustained.
On January 4, 1999, Dr. Wayne Bruffett evaluated appellant, agreed with Dr. Braden’s assessment, and noted:
[Appellant] says that he is unable to work at his previous capacity. He does not have an objective finding on his examination or on his MRI scan that would Emit his ability to work but he says that due to his pain he is unable to continue. His complaints of pain seem to be out of proportion to what is seen on the MRI.
Dr. Bruffett felt that appellant’s back condition did not warrant surgical intervention and referred him to Dr. Bruce Safman, who had treated appellant for an earlier injury. Dr. Safman noted that appellant had “a history of psychological problems” and that “there is an extremely strong functional or emotional component to his problem.” He concluded:
I am not optimistic about conservative resolution of his symptoms. This patient, according to Dr. Bruffett, has had x-rays of the cervical, thoracic and lumbar spine, MRIs of the cervical and lumbar spine and there is no explanation for his symptomatology.
Appellant’s physicians could find no physical explanation for the continued pain symptoms which, according to appellant, rendered him incapable of working.
On March 10, 1999, appellant received a psychological evaluation from Susan Estes, licensed psychological examiner, and was found to be functioning within a mild range of mental retardation with a full scale IQ score of 52. No objective findings were provided to link any psychological condition with the September 3, 1998 motor-vehicle accident.
On February 20, 2001, Dale Thomas, a vocational expert, evaluated appellant. Thomas reviewed appellant’s medical records and a number of psychological evaluations which had been performed, including the report in which appellant had been diagnosed with mild mental retardation. After considering both appellant’s physical and mental status, Thomas opined that appellant was capable of returning to work. Thomas stated:
[T]here are no physical reasons that he cannot return to his previous job or other jobs. He’s also employable based on the intellectual abilities he has or does not have. I think that functionally illiterate people are employable.
Thomas also remarked, “[Appellant] is not physically precluded from working.” In addition, Thomas stated, “Low intellectual functioning alone does not preclude a return to work. Indeed, [appellant] worked for ten years for [a previous] employer. I believe that he could return to work with other employers as well that have routine work that does not involve literacy skills.”
In his brief, appellant asks us to review only one finding of fact made by the Commission. Appellant directs us to finding number 7, wherein the Commission found:
That Claimant has failed to prove by a preponderance of the evidence that he is entitled to any permanent disability benefits; specifically, the Claimant has failed to prove that the compensable injury of September 3, 1998[,] was the major cause of any perma nent impairment or disability sustained by Claimant; Claimant has failed to prove by any objective findings the existence, degree and extent of any permanent impairment or disability having been sustained in his work-related accident of September 3, 1998; and has failed to causally relate any current impairment or disability to the work-related accident of September 3, 1998.
We note that appellant does not challenge the Commission’s determination that he was not entitled to additional medical treatment.
The Commission cited to Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 479, 10 S.W.3d 727, 884 (2000), for the proposition that a claimant must prove a specific percentage of permanent impairment before he is eligible for permanent disability benefits and wage-loss benefits:
However, [pjursuant to the plain language of section 11 — 9— 522(b)(1), “the percentage” of permanent physical impairment must be established before the Commission can consider a claim for permanent partial-disability benefits “in excess of the employee’s percentage” of permanent physical impairment. Similarly, any consideration of “the employee’s age, education, work experience, and other matters reasonably expected to affect his earning capacity” may not occur until the Commission has first determined “the percentage” of permanent physical impairment.
In this case, appellant offered no medical evidence containing a physician’s report that assigned him a permanent impairment rating. Without such a rating, a claimant is not entitled to permanent disability benefits or wage-loss benefits. See id. We believe that the Commission had substantial evidence to find that appellant failed to prove entitlement to permanent disability benefits.
We note that appellant does not challenge the Commission’s finding that the second-injury fund has no liability. In fact, appellant repeatedly stated in his brief that he never sought second-injury fund liability. Upon review of the record, we cannot find that appellee cross-appealed this issue. Yet, appellee argues the merits of the issue in its brief. We have held that when an “appellee has failed to file a cross-appeal, as it was permitted to do. . . we will not address its challenge to the Commission’s finding of fact.” Moser v. Arkansas Lime Co., 40 Ark. App. 108, 110, 842 S.W.2d 456, 457 (1992) (supplemental opinion denying rehearing). Likewise, in this instance, we will not address the merits of appellee’s challenge to the Commission’s finding regarding the lack of second-injury fund liability, as appellee has failed to file a cross-appeal.
Affirmed.
Hart and Roaf, JJ., agree.
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R. Baker, Judge.
This is an appeal involving application of the Arkansas Statutory Foreclosure Act, Ark. Code Ann. §§ 18-50-101 to 116 (Supp. 2001) (Act), to appellants Gary Lambert’s and Nedra Lambert’s attempt to reinstate their defaulted mortgage. The trial court granted appellee Firstar Bank’s motion for summary judgment and denied appellants’ motion for summary judgment. We affirm.
The parties stipulated to the facts of this case. On or about September 9, 1996, appellants executed a promissory note and mortgage, later assigned to appellee, covering property in Lincoln County, Arkansas. The note provided for a monthly payment of principal, interest, taxes, and insurance in the amount of $859.99. Appellants became delinquent in their monthly mortgage payments, and appellee sent a letter on August 4, 1999, informing appellants that they owed $2,579.97 for past-due payments and $61.28 for late charges for a total amount owing of $2,641.25. At the time of the August 4, 1999, letter, appellants were three months behind on their monthly mortgage payments. Appellee retained counsel to institute foreclosure proceedings on the mortgaged property.
As of December 1,1999, appellants were delinquent on their mortgage for six monthly payments and the December payment was due; the total mortgage payments due and late fees totaled $6,235.27. On December 15, 1999, appellee filed a Mortgagee’s Notice of Default and Intention to Sell; The notice provides in prominent, bold letters “YOU MAY LOSE YOUR PROPERTY IF YOU DO NOT TAKE IMMEDIATE ACTION.” There is no evidence to show that the parties communicated at that time regarding a total amount claimed. A sale date for the mortgaged property was set for February 24, 2000. By letter dated January 12, 2000, appellee’s counsel sent to appellants via certified mail a copy of the Notice of Default and Intention to Sell. The notice did not contain a demand for specific payment. The letter was.returned, marked “unclaimed” on January 22, 2000.
On February 8, 2000, appellants tendered two cashier checks totaling $9,000 to appellee in an attempt to reinstate the mortgage. As of that date, the total of all delinquent mortgage payments, late fees, and the costs and fees accrued in the foreclosure proceeding totaled $9,813.72. There is no evidence indicating that the parties communicated regarding the total amount owing at this time. At the time appellants tendered the cashier’s checks, they were delinquent for eight monthly payments plus fees, costs and expenses associated with the delinquency and foreclosure, and February’s payment was due. There is no evidence to show that appellee communicated to appellants the insufficiency of the tendered payment to cover all fees and costs, and there is no evidence to show that appellants communicated with appellee to confirm whether the tendered payment would be sufficient to cover all fees and costs. The tendered amount was sufficient under terms of the mortgage to cover the February payment and past-due payments but insufficient to cover the additional fees, costs, and expenses associated with the foreclosure. The mortgage was not reinstated, and this information was not communicated to appellants until after the sale of the property. The sale of the mortgaged property took place on February 24, 2000, with appellee the successful bidder.
Appellants received a letter dated February 26, 2000, notifying them of the total amount claimed. The letter gave appellants two days to tender the money in full. Appellants’ cashier’s checks in the amount of $9,000 were returned to them, by certified mail, with a letter dated March 9, 2000. After attempts at delivery, the letter was returned, marked “unclaimed” on March 31, 2000. The cashier’s checks were returned to appellants on June 21, 2000, as soon as it was discovered where the checks should be sent. On March 9, 2000, a notice to vacate was sent to the occupants of the property. Appellants were served with a writ of assistance on April 14, 2000, and thereafter vacated the property.
Appellants filed their complaint on September 27, 2000, alleging that appellee failed to comply with the Act in that appellee’s notice did not contain the exact amount necessary to cure the default. The complaint sought an injunction preventing appellee from proceeding with the foreclosure and damages. Appellee answered, denying that it had failed to comply with the Act or that appellants had tendered sufficient funds to cure the default and reinstate the mortgage.
Appellee filed its motion for summary judgment, asserting that it was entitled to judgment as a matter of law because appellants had failed to comply with Ark. Code Ann. § 18-50-114(a) (Supp. 2001) by tendering the entire amount of payments, late fees, and attorney’s fees and costs and that Ark. Code Ann. § 18-50-116(d)(2) (Supp. 2001) barred appellants’ action.because suit was not filed until after the sale. Appellants filed their response to appellee’s motion for summary judgment, asserting that appellee arbitrarily imposed attorney’s fees and failed to advise appellants that the sum tendered was insufficient to cure the default. Meanwhile, appellants filed their motion and brief for summary judgment, asserting the same grounds as in their response to appellee’s motion.
The trial court issued a letter opinion in which it concluded that, before appellee had a duty to reinstate appellants’ mortgage, appellants had the duty to make inquiry as to the amount needed to reinstate the mortgage and to pay that full amount. The trial court found that appellants failed to do either. The trial court also concluded that appellants’ suit was untimely under Ark. Code Ann. § 18-50-116(d). The trial court then granted appellee’s motion for summary judgment and denied appellants’ motion. Judgment was entered accordingly on September 20, 2002, and this appeal followed.
Appellants argue two points: (1) that the trial court erred in concluding that appellee had complied with the Act and was not required to notify appellants that the sum tendered was insufficient; and (2) that the trial court erred in concluding that appellants’ action was barred as untimely.
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. Bond v. Lavaca Sch. Dist., 347 Ark. 300, 64 S.W.3d 249 (2001). Normally, in an appeal from a summary judgment, the evidence is viewed most favorably for the party resisting the motion, and any doubts and inferences are resolved against the moving party, but when the parties agree on the facts, we need only determine whether the appellee was entitled to judgment as a matter of law. See Aloha Pools & Spas, Inc. v. Employer’s Ins. of Wausau, 342 Ark. 398, 39 S.W.3d 440 (2000). When both sides move for summary judgment and thus, in essence, agree that there are no material facts remaining, summary judgment is an entirely appropriate means for resolution of the case. Id. The question in the case at bar is one of law — whether appellee was entitled to judgment as a matter of law. Id.
For their first point, appellants argue that the trial court erred in finding that appellee complied with the Act and was not required to notify appellants that the sum tendered was insufficient to cure the default. Appellants note that the Act is subject to a strict construction. See Henson v. Fleet Mortgage Co., 319 Ark. 491, 892 S.W.2d 250 (1995).
Arkansas Code Annotated section 18-50-114(a) (Supp. 2001) provides, in part:
(a) Whenever alloraportionofthe principal sum of any obligation secured by a mortgage or deed of trust ... has become due or has been declared due by reason of a breach or default... including a default in the payment of interest or of any installment of principal ... then the mortgagor... may pay, at any time subsequent to the filing for record of a notice of default and intention to sell and prior to the sale, to the mortgagee ... the entire amount then due under the terms of such mortgage or deed of trust, including costs and expenses actually incurred in enforcing the terms of such obligation and mortgage or deed of trust, and trustee’s and attorney’s fees other than that portion of the principal which would not then be due had no default occurred, and thereby cure the default theretofore existing....
(Emphasis added.) Appellants argue that appellee should have been required to send them notice of the amount needed to cure the default because appellee had appellants’ $9,000 for some two weeks without notifying appellants that the sum was insufficient. Appellants also argue that appellee arbitrarily inflated the amount of the attorney’s fees so as to go over the $9,000 tendered by appellants. However, appellant did not allege, nor offer any proof, that they relied on appellee’s silence as indicating that the tendered funds were sufficient to cover the default or that the fees were not actually incurred, as provided in section 18-50-114(a).
Instead, appellants insist that appellee had a duty to inform them that the amount tendered was insufficient and to provide them with the correct amount to cure the default. The general rule is to the contrary, and ordinarily, absent affirmative fraud, a party, in order to hold another liable in fraud must seek out the information he desires and may not omit inquiry and examination and then complain that the other did not volunteer information. See Ward v. Worthen Bank & Trust Co., 284 Ark. 355, 681 S.W.2d 365 (1984) (quoting Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983)).
Appellants’ argument is in the nature of a detrimental-reliance argument. However, it was not pled or argued below. This is not to say that complying with the Act insulates a financial institution from liability. Arkansas Code Annotated section 18-50-116(d) (2) does not prevent a party from timely asserting any claims or defenses it may have concerning the foreclosure. In Berkley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983), the court recognized that there are times when the law imposes a duty to speak rather than remain silent when the failure to speak is the equivalent of fraudulent concealment but that this duty arises only when special circumstances, such as confidential relationships are shown. In Camp v. First Federal Savings & Loan, 12 Ark. App. 150, 671 S.W.2d 213 (1984), we held that Berkley Pump had not restricted those circumstances to confidential relationships but extended it to other special circumstances surrounding the transaction which give rise to a relationship that requires disclosure. In Camp, the appellant did not argue that First Federal had actively made false representations to her but insisted that First Federal had owed her a duty to disclose that the property she was purchasing was located in a flood area. First Federal argued that it had no confidential relationship with the appellant because it had merely loaned construction money to the builder. We reversed the directed verdict entered on behalf of the bank and held that a jury should have had the opportunity to decide whether First Federal owed appellant a duty to speak. We noted that the circumstances under which a duty to speak arises are not limited to situations involving confidential relationships; whether special circumstances exist that create such a duty is a question of greater importance. Id.
Appellants would have this court rewrite Ark. Code Ann. § 18-50-104 to impose a requirement that the mortgage holder inform the debtor of the amount needed to cure the default. However, as the trial court noted, Ark. Code Ann. § 18-50-104 was amended by Act 983 of 1999 to delete the very requirement that appellants seek to require, that is that the mortgage holder state the amount due in the notice of default. It is not the function of this court to legislate; to do so would be a clear violation of this court’s authority. Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1979).
Here, it is undisputed that appellants did not tender an amount sufficient to pay all of the payments, late fees, and costs and expenses necessary to cure their default. The plain language of section 18-50-114(a) provides that the mortgagor must pay the entire amount of the past-due payments, late fees, and costs and expenses, including attorney’s fees before curing the default. Thus, appellee was not required by the plain language of section 18-50-114(a) to reinstate appellants’ mortgage. Further, the default notice sent to appellants advised them that they could lose their property if they did not take further action. This placed the burden on appellants to make inquiry as to what steps were needed to cure the default. The parties stipulated that there was no evidence that this occurred. Therefore, the trial court did not err in finding that appellee complied with the Act.
For their second point, appellants argue that the trial court erred in ruling that appellants’ action was barred by their failure to file it prior to the foreclosure sale. Section 18-50-116(d) provides:
(d) Nothing in this chapter shall be constmed to:
(1) Create an implied right of redemption in favor of any person; or
(2) (A) Impair the right of any person or entity to assert his legal and equitable rights in a court of competent jurisdiction.
(B) Provided, however, that any such claim or defense shall be asserted prior to the sale or be forever barred and terminated.
Section 18-50-116(d)(2)(B) was added by Act 983 of 1999. Appellants concede that this provision would bar actions filed after the foreclosure sale occurs but argue that it was appellee who delayed the action by waiting some two weeks before telling appellants that their tender was insufficient to cure the default. Appellants do not cite any authority in support of their argument that appellees’ delay created an exception to the statutory bar, nor do they assert another claim or defense for our consideration. This court does not consider assertions of error that are unsupported by convincing legal authority or argument, unless it is apparent without further research that the argument is well taken. Grayson v. Bank of Little Rock, 334 Ark. 180, 971 S.W.2d 788 (1998).
Accordingly, under the stipulated facts of this case, the trial court did not err in granting summary judgement in favor of appellee.
Affirmed.
Vaught and Crabtree, JJ., agree.
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Mauzy Pittman, Judge.
The appellant in this criminal case was charged with battery in the first degree. After a bench trial, appellant was convicted of that offense and sentenced to a term of ten years’ imprisonment, with three years suspended. From that decision, comes this appeal.
For reversal, appellant contends that the evidence was insufficient to support his conviction of battery in the first degree because there was no substantial evidence to show that the victim suffered a serious physical injury, or to show that appellant intentionally or knowingly inflicted the injury. Appellant also contends that the trial court erred in denying his motion to suppress the third of three statements he made to police officers, asserting that the interrogating officer improperly initiated contact with appellant after appellant had invoked his right to counsel. We affirm.
A person commits battery in the first degree if he intentionally or knowingly without legal justification causes serious physical injury to one he knows to be twelve years of age or younger. Ark. Code Ann. § 5-13-201 (a)(6) (Repl. 1997). When the sufficiency of the evidence is challenged on appeal, the test is whether there is substantial evidence to support the verdict; substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Taylor v. State, 77 Ark. App. 144, 72 S.W.3d 882 (2002). In determining whether the evidence is substantial, we view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict. Id.
Viewing the evidence in that light, the record reflects that appellant was babysitting for his girlfriend’s two-year-old child while his girlfriend was out of town. While in appellant’s care, the child was bathed by appellant and received second-degree burns, primarily on her feet and ankles. Appellant’s mother, a nurse, took the child to a local physician for treatment, explaining that the child’s feet were injured because her shoes were too tight. The child’s great-grandmother subsequently talked to the child on the telephone and, alarmed by the child’s distress, sent a family member to get the child. The great-grandmother, upon seeing the child’s injuries and observing that the child was in pain and hysterical, took the child to Arkansas Children’s Hospital for emergency treatment. The physicians at the hospital observed that the child had extensive scalding burns primarily on her feet, with a sharp line of demarcation on the lower ankles, and determined that she had sustained an intentionally-inflicted immersion injury in which the child was forcibly held in position while immersed in scalding water. According to the physicians’ testimony, accidental scalding injuries do not show such a pronounced line of demarcation because a child would not willingly remain in such hot water long enough to produce burns of this nature. The tops of the child’s feet were almost entirely blistered. To counter the danger of infection, the physicians were required to debride the skin from the blistered area. Debriding is a very painful procedure normally requiring the administration of morphine in adults for pain relief. The child was very fearful during the examination, requiring administration of a stronger narcotic than was originally given. The examination also revealed that the child had sustained extensive bruising on her back, lower back, and gluteus area. The bruising was several different colors, ranging from deep red to dark blue and dark purple. The entire region from the middle of her shoulder blades to her buttocks was almost total confluent bruising caused by trauma.
Appellant first argues that the evidence is not sufficient to show that the child suffered a serious physical injury. We do not agree. “Serious physical injury” means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Ark. Code Ann. § 5-1-102(19) (Supp. 2001). The record shows that the victim in the present case was unable to walk upon arrival at the emergency room and was still unable to walk at the time of her release from the hospital several days later. She required a course of physical therapy to prevent her injuries from resultingcin a permanent loss of mobility, and there was testimony that she still bore scars from the incident two years later. The question of temporary or protracted impairment is one for the jury, Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976), and several cases have held that similar or lesser injuries were serious within the meaning of the statute. See, e.g., Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); Harmon v. State, supra. Even the case upon which appellant principally relies, Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994), held that an immersion injury comparable to the injury in the case at bar constituted a “serious physical injury.” Id. at 152, 889 S.W.2d at 762. We hold that there is substantial evidence to show that the victim in the present case sustained a serious physical injury as defined by'Ark. Code Ann. § 5-1-102(19).
Appellant next contends that the evidence is insufficient to show that he intentionally injured the child. This argument is based squarely on the following portion of Tigue:
This case turns on the phrase “under circumstances manifesting extreme indifference to the value of human life” contained in § 5-13-201.That phrase is what distinguishes conduct constituting first degree battery from that of second degree battery. Giving the phrase its plain meaning, the circumstances of first degree battery must by necessity be more dire and formidable in terms of affecting human life. On this point, we stated in 1977 that the phrase relates to proof of the intent or mental state of the accused:
In the case at bar the phrase “circumstances manifesting extreme indifference to the value of human life” indicates that the attendant circumstances themselves must be such as to demonstrate the culpable mental state of the accused. The language of the Arkansas statute does not require reasonable men to speculate as to its common understanding or application.
Martin v. State, 261 Ark. 80, 84, 547 S.W.2d 81, 83 (1977). The Commentary to the battery statutes goes further in illuminating the conduct and mental state embraced within first degree battery:
For the most part, battery in the first degree comprehends only life-endangering conduct. The severity of punishment authorized is warranted by the conjunction of severe injury and a wanton or purposeful culpable mental state. Each subsection describes conduct that would produce murder liability if death resulted.
Ark. Code Ann., Commentaries, p. 674 (1989). It is clear to us that first degree battery involves actions which create at least some risk of death and which, therefore, evidence a mental state on the part of the accused to engage in some life-threatening activity against the victim. See, e.g., Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984).
The next step is a determination of whether the facts in this case can sustain a conviction for first degree battery. The'test for determining sufficient proof is whether there is substantial evidence to support the verdict. Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994); Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). On appeal, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Daffron, supra; Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Daffron, supra; Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).
Here, there is no question that Tasmine suffered a “serious physical injury,” as defined under § 5-1-102(19). She received third degree burns on one hand which required skin grafts and resulted in permanent scarring and second degree burns on the other hand. But that is only one facet of proof necessary to sustain a conviction for first degree battery under § 5-13-201(a)(3).
There is no evidence that we can ascertain from the record that Tasmine was injured under circumstances manifesting extreme indifference to the value of human life. There was no testimony produced at trial to this effect; not evenTasmine’s treating physician, Dr. Little, suggested this. We conclude that a plain reading of the statute defining first degree battery requires a higher level of culpability than was exhibited in the case before us.
Tigue v. State, 319 Ark. at 151-52, 889 S.W.2d at 761-62.
The holding in Tigue is based on the particular statutory requirement of subsection (a)(3) of section 5-13-201, which requires that the actor cause serious physical injury to another person under circumstances manifesting extreme indifference to human life. However, the appellant in the present case was not charged with violating that subsection. The subsection that appellant was found to have violated did not exist at the time Tigue was decided, but instead originated in an Act to Expand the Definition of Battery in the First Degree, Act 360 of 1995, enacted in the legislative session following the decision in Tigue. This Act added subsection (a)(6), providing that a person also commits battery in the first degree if he intentionally or knowingly without legal justification causes serious physical injury to one he knows to be twelve years of age or younger. Ark. Code Ann. § 5-13-201(a)(6). Unlike the subsection at issue in Tigue, subsection (a)(6) has no requirement of an intent manifesting extreme indifference to human life. Appellant in the present case was charged with and convicted of a violation of Ark. Code Ann. § 5-13-201(a)(6), and the discussion of subsection (a)(3) found in Tigue is inapplicable. Instead, the question in the present case is simply whether the evidence supports a finding that appellant acted intentionally or knowingly, and there was a plethora of medical testimony to show that the victim’s injuries could not have been accidental but were instead intentionally inflicted. We cannot say that this testimony does not constitute substantial evidence that appellant acted knowingly or intentionally.
Finally, appellant argues that the trial court erred in denying his motion to suppress a custodial statement. Statements arising from custodial interrogation are presumed to be involuntary. The burden is thus on the State to prove that a defendant knowingly and intelligently waived his privilege 'against self-incrimination and his right to an attorney, and that he voluntarily made the statement. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988); Scales v. State, 37 Ark. App. 68, 824 S.W.2d 400 (1992). On appeal from the denial of a motion to suppress, we make an independent review based on the totality of the circumstances, but we defer to the trial court’s superior position to determine the issue of the credibility of the witnesses who testify to the circumstances of a defendant’s custodial statement, and we will not reverse the trial court’s findings of historical fact unless they are found to be clearly erroneous. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003); Brunson v. State, 41 Ark. App. 39, 848 S.W.2d 936 (1993); see Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).
The record shows that appellant made three custodial statements to police, all of which were accompanied by waivers of appellant’s Miranda rights. The statement appellant sought to suppress was his third and final statement. At the conclusion of the second statement, appellant invoked his right to counsel and refused to answer further questions. At the suppression hearing, Officer Raney, who took appellant’s second statement, testified that the taking of the third statement was initiated by appellant, who told her after the tape had stopped that he really wanted to talk to the police further and tell them what happened.
Although it is true that, where an accused has invoked his right to counsel, courts may admit his responses to further, questioning only upon finding that he both initiated further discussions with police, and knowingly and intelligently waived the right to counsel he had previously invoked, Brunson v. State, supra (citing Smith v. Illinois, 469 U.S. 91 (1984)), we cannot say on this record that the trial court clearly erred in finding that the appellant initiated the further discussions with the police that culminated in the taking of the third statement. Viewing the totality of the circumstances of record, and giving due deference to the trial court’s superior position to resolve questions of credibility, we cannot say the trial court erred in denying appellant’s motion to suppress his third custodial statement.
Affirmed.
Gladwin, J., agrees.
Baker, J., concurs.
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D. Vaught, Judge.
This is a pro se appeal from a decision of the Workers’ Compensation Commission denying appellant benefits finding that she was not performing employment services at the time of the accident. Appellant contends that the Commission’s decision is not supported by substantial evidence. We disagree and affirm.
On September 28, 1999, appellant Sharon Renee Daniels (Marshall) slipped and fell at the Waffle House, which is owned by-appellee Arkansas Waffles. She fractured her foot as a result of the fall and filed a claim for workers’ compensation benefits, which was denied by appellee.
Appellant appeared pro se at the hearing before an administrative law judge. She performed the job of door corps (greeting customers) on Friday, Saturday, and Sunday, and waitress on Tuesday, Wednesday, and Thursday, but she cleaned anytime that she worked. Appellant testified that on Tuesday, September 28, she parked her car at the Waffle House, walked inside, and spoke to co-workers Debbie, Trish, and Liz, who told her she was not supposed to be at work. However, she stated that they all agreed that they were all going to work that day. She then went to clock in, but her time card was not there. She remembered that she had left it at home and told her co-workers that she would be back. When she returned, appellant parked her car at Taco Bell and walked to the Waffle House because she was afraid of something. Appellant testified that she clocked in and prepared a bleach water bucket for washing dishes. She then looked for the schedule, which she found on the bulletin board above the table in the workroom. Appellant stated that when she backed away from the table to get her water bin, she fell to the floor after tripping over a carbon dioxide canister used for the soda machine. During her testimony at the hearing, appellant gave various explanations as to how she fell. Appellant testified that after she fell, Liz and Trish helped her up. She attempted to call her manager, Danny Schlinker, and then called the district manager named Mark, who told her to go to the hospital. She was treated in the emergency room at UAMS for a fracture in her foot, but subsequent x-rays were inconclusive regarding whether she had a fracture.
In addition to the above testimony, appellant testified that Schlinker told her that she could come in and clean anytime, even when she was not on the schedule. Schlinker denied telling appellant this, but stated that appellant did get extra hours cleaning on days that she was scheduled to work. He did not recall her ever cleaning on days she was not already scheduled to work.
Danny Schlinker testified that he was the unit manager at the Waffle House on September 28, 1999. He stated that he made the schedule and that appellant was not scheduled to work that day. He explained that she normally worked Tuesdays but that she had personally come to him and requested the day off for a school function. Schlinker testified that when he was not at the restaurant, the cook was in charge, but that he could not recall telling this to appellant. On the day of the accident, Debbie Haynes was the cook and it was her responsibility to make decisions regarding what employees were to do or not do. He testified that Haynes had the authority to send employees home if they were not on the schedule.
Debbie Haynes also testified at the hearing that she was in charge when Schlinker was not at the restaurant. She stated that when appellant first arrived, Haynes told her that she could go home because she was not on the schedule for that day and that she was not needed because there was enough wait staff present. Haynes had been told by Schlinker just before he left that appellant was not working that night. She testified that appellant did not go home, but instead walked back to the time clock. Haynes later learned that appellant clocked in and sat in the back for about ten minutes and then left. Haynes testified that appellant returned several hours later, but that Haynes was not certain why she was there. Haynes told appellant that she was not supposed to be on the floor when she was not working. Shortly thereafter, Liz came and told her that appellant had fallen on the floor in the back room. Haynes denied telling appellant that they were all going to work that day.
After the hearing, the administrative law judge found that appellant was not entitled to benefits because she failed to prove, by a preponderance of the evidence, that she suffered an injury at a time when employment services were being performed. The full Commission, in its de novo review, affirmed the decision of the ALJ, finding that appellant failed to prove by a preponderance of the evidence that she sustained a specific-incident injury and failed to prove that the alleged injury occurred during the course and scope of her employment. In finding that she failed to prove that she was performing employment services at the time the alleged injury occurred, the Commission relied on testimony that appellant was not scheduled to work that day, that the restaurant was fully staffed and she was not needed; and that she was told that she was not needed and should not be “on the floor.”
In reviewing decisions from the Workers’ Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Daniels v. Arkansas Dep’t of Human Servs., 77 Ark. App. 99, 72 S.W.3d 128 (2002). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Id.
Arkansas Code Annotated section 11-9-102(4) (A) (Repl. 2002) provides that “compensable injury” means “an accidental injury causing internal or external physical harm ... arising out of and in the course of employment ... An injury is accidental’ only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]” Employment services are performed when the employee does something that is generally required by his or her employer. Collins v. Excel Spec. Prod., 347 Ark. 811, 69 S.W.3d 14 (2002); Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). We use the same test to determine whether an employee was performing “employment services” as we do when determining whether an employee was acting within “the course of employment.” Collins, supra; Pifer, supra. The test is whether the injury occurred “within the time and space boundaries of employment, when the employee [was] carrying out the employer’s purpose or advancing the employer’s interests directly or indirectly.” Collins, supra at 817, 69 S.W.3d at 18; Pifer, supra.
In the present case, both Mr. Schlinker and Ms. Haynes testified that appellant was not supposed to be working on the day of the incident. Ms. Haynes stated that she told appellant when she arrived that she was not supposed to be at work, that she could go home, and that she was not needed. While appellant’s testimony regarding whether she was scheduled to work and whether the employees told her she could work anyway contradicts the testimony of Mr. Schlinker and Ms. Haynes, the Commission found appellant not to be credible. The determination of the credibility and weight to be given a witness’s testimony are within the sole province of the Commission. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). In addition, Ms. Haynes testified that when appellant arrived at work the second time on the day of the incident, she told appellant she was not supposed to be “on the floor” when she was not working. Based on our review of the evidence, we conclude that the Commission’s decision that appellant was not performing employment services at the time of her alleged injury is supported by substantial evidence. Because there was substantial evidence to support the Commission’s finding that appellant was not performing employment services at the time of her alleged injury, we need not address whether there is substantial evidence to support the Commission’s finding that appellant failed to prove a specific-incident injury.
Affirmed.
Stroud, C.J., and Bird, J., agree.
An exhibit contained in the record indicates that appellant clocked in at 18:36 (6:36 p.m.) and clocked out at 20:08 (8:08 p.m.).
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D. Vaught, Judge.
This is an appeal from a Drew County Circuit Court jury trial in which appellants Timmy Glen Murphy and Lewis Ray were each convicted of sexual assault in the first degree and sentenced to ten years in the Arkansas Department of Correction. On appeal, appellants raise two points, (1) whether there was sufficient evidence to support their convictions, which required the State to prove their status as temporary caretakers or persons in a position of trust or authority over the victim, and (2) whether the trial court abused its discretion in denying appellants’ motion for continuance filed the day before trial when, less than ten days prior to trial, the State amended the information from rape to sexual assault in the first degree. We affirm.
On or about December 7, 2001, appellants Murphy (then age forty) and Ray (then age thirty-nine), along with Ray’s mother and her friend, Sue Tew, visited the home of Mark and Sherrie Cater around 3:30 p.m. The victim, then age sixteen, is the son of Mr. Cater and the stepson of Mrs. Cater. He arrived home at approximately 3:50 p.m. At some point during the visit, the victim’s parents granted appellants permission to take the son out to eat, go Christmas shopping, and spend the night at appellants’ home. There is testimony that the victim was scheduled to meet with appellant Murphy the following morning to receive tutoring for his biology class.
It is undisputed that the victim’s parents were aware of the appellants’ openly homosexual relationship. The Caters testified that they informed appellants that they accepted their lifestyle, but warned the appellants not to “try anything” with their son. According to testimony, appellant Ray assured the Caters, “we’ll keep ourselves to each other and leave your son alone. He’s just there for the night to have a good time with us.”
According to testimony from the victim at trial, both appellants engaged in deviate sexual activity with him, including fondling, oral and anal sex, upon arriving at their home after dinner and shopping. Appellants were originally charged with rape, pursuant to Ark. Code Ann. § 5-14-103 (Supp. 2001), but less than ten days prior to their scheduled trial date the charges were amended to sexual assault in the first degree, pursuant to Ark. Code Ann. § 5-14-124(a)(3) (Supp. 2001). Appellants moved jointly for a continuance because of the amended charges, but the motion was .denied. At their trial held on June 26, 2002, statements from both appellants, admitting to having sexual relations with the victim, were introduced without objection. A jury convicted both appellants of first-degree sexual assault of the sixteen-year-old victim and sentenced each to ten years in the Arkansas Department of Correction pursuant to a judgment and commitment order entered on July 9, 2002. From that order comes this appeal.
Appellant Ray elected to adopt the same argument set forth in the appellate brief of his co-appellant, Murphy. Accordingly, their arguments will be reviewed together. At the close of the State’s case, appellants moved for a directed verdict challenging the sufficiency of the evidence regarding the State’s proof that they were temporary caretakers or persons in a position of trust or authority over the victim as required by Ark. Code Ann. § 5-14-124(a)(3). The trial court denied the motion, as well as the renewed motion at the end of their case. Appellants now challenge the denial of their motion.
A directed-verdict motion is a challenge to the sufficiency of the evidence. Taylor v. State, 77 Ark. App. 144, 72 S.W.3d 882 (2002). When the sufficiency of the evidence is challenged on appeal from a criminal conviction, we review the evidence and all reasonable inferences in the light most favorable to the State and will affirm if the finding of guilt is supported by substantial evidence. Brown v. State, 74 Ark. App. 281, 47 S.W.3d 314 (2001). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another that passes beyond mere speculation or conjecture. Reinert v. State, 348 Ark. 1, 71 S.W.3d 52 (2002).
The appellants argue that the State failed to prove that either of them was a “temporary caretaker, or a person in a position of trust or authority over the victimj,]” which is required for a conviction under Ark. Code Ann. § 5-14-124(a)(3). Appellants claim that this must be proven because they fail to fit into any of the specific categories listed within the statute, which reads in pertinent part:
5-14-124. Sexual assault in the first degree.
(a) A person commits sexual assault in the first degree if the person engages in sexual intercourse or deviate sexual activity with another person, not the person’s spouse, who is less than eighteen (18) years of age and the person:
(1) Is employed with the Department of Correction, Department of Community Punishment, Department of Human Services, any city or county jail or juvenile detention facility, and the victim is in the custody of the Department of Correction, Department of Community Punishment, Department of Human Services, any city or county jail, or juvenile detention facility, or their contractors or agents;
(2) Is a professional under § 12-12-507(b) and is in a position of trust or authority over the victim and uses the position to engage in sexual intercourse or deviate sexual activity; or
(3) Is the victim’s guardian, an employee in the victim’s school or school district, a temporary caretaker, or a person in a position of trust or authority over the victim.
They assert that they were no more than social friends of the victim’s family, which is not covered by the “catch-all” language in sub-paragraph (a)(3), and therefore could not be convicted under this particular statute.
? statute was recently enacted, and there are no published Arkansas cases directly on point that define the challenged terms, “temporary caretaker” or “position of trust or authority.” A statute is to be construed just as it reads, “giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation.” Smith v. State, 352 Ark. 92, 101, 98 S.W.3d 433, 440 (2003). Appellants argue that the statute must not be read broadly, because to do so would put any adult who comes in contact with a person under the age of eighteen in a position of trust and authority over that person. Both sides refer to definitions of the challenged terms as set forth in various recent dictionaries, each arguing that the definitions clearly support their respective arguments.
Appellants contend that when the “catch-all” phrase is read in conjunction with the rest of the statute, it is clear that the legislature intended the terms “temporary caretaker” and “in a position of .trust or authority” to apply to individuals who are more than mere friends or acquaintances of the victim. They claim that when read in relation to the nonexhaustive list of other positions listed in the statute, the intent was for the language to cover persons with a particular charge or position in caring for or controlling the victim.
Appellants reference one related case, Reinert v. State, 348 Ark. 1, 71 S.W.3d 52 (2002), in which the appellant was convicted of violation of a minor in the first degree pursuant to Ark. Code Ann. § 5-14-120 (Repl. 1997) (repealed 2001). There, the appellant had been living with his girlfriend, the sixteen-year-old victim’s mother, for two years; and by his own admission, he was the disciplinarian and authority figure in the household. The appellant challenged the constitutionality of the statute because of its failure to define “temporary caretaker” and “a person in a position of trust and authority.” In Reinert, the supreme court found that the challenged statute was not void for vagueness as applied to the appellant in that case because the term “guardian” was defined in the statute and clearly applied to the appellant. The supreme court did not address the terms specifically challenged in the instant case because another defined term, “guardian,” directly applied to the facts in that casé. The appellants in the present case maintain that although not clearly defined in the statute, the challenged terms were intended to apply to individuals in a position of caring for or controlling the victim and not merely a friend or social host.
Additionally, the appellants testified that the victim’s parents were aware that the appellants were consuming alcoholic beverages and had smoked marijuana on the day the incident occurred. They also maintain that their home was within walking distance of the victim’s home and that he was free to leave at any time. Appellants contend that in light of these factors, as well as the knowledge of the victim’s parents of their homosexual relationship, it would be “ludicrous to say that [appellants] were in a position of trust or authority” over the victim.
Although not an Arkansas case, People v. Kaminski, 246 Ill. App. 3d 77, 615 N.E.2d 808 (1993), is similar and instructive. In Kaminski, the appellate court affirmed the appellant’s conviction for sexually assaulting his seventeen-year-old sister-in-law. The appellant argued that the state had failed to prove that he “held a position of trust, authority or supervision in relation to the victim,” as required by the statute with which he was charged. His contention was that the phrase did not apply to his situation because he was a “one-night social host.” Kaminski, 246 Ill. App. 3d at 82, 615 N.E.2d at 812. Like the victim in the instant case, the victim in Kaminski was a minor who resided with and was cared for by her parents. Likewise, permission was obtained from her parents to spend the night with the appellant. The Illinois court made the following finding:
We find defendant’s assertion that he merely acquiesced to an overnight stay and did not hold a position of supervision over the victim to be an improbable characterization of the undisputed evidence. Although the victim’s age might have minimized the degree of “authority” defendant and [the sister] could have exercised over her, it did not preclude their overseeing her overnight stay with the responsibility of notifying her parents if something went wrong and make certain that her needs were attended to, including providing a safe place for her to spend the night. We further note that defendant would not have had the opportunity to assault the victim sexually had her parents not entrusted her care to defendant and [her sister] for the night.
Kaminski, 246 Ill. App. 3d at 82-83, 615 N.E.2d at 812.
As mentioned above, the victim in the instant case was a sixteen-year-old minor who lived with his parents. There was testimony that he was somewhat developmentally delayed compared to “normal” children his age and that he did not drive. From our review of the evidence, the victim in this case, besides being a year younger, was even more dependent on adult care and supervision than the victim in Kaminski was. It is undisputed that appellants specifically obtained permission from the victim’s parents for him to leave with them for the express purposes of going out for dinner and Christmas shopping, as well as to spend the night at their home. There is testimony that the victim’s parents asked for, and received, assurances from the appellants that they would look after the victim and not “try anything” with him. It is reasonable from the circumstances to infer that the victim’s parents expected appellants to provide food, transportation, safe lodging, and care for their son while he was with them. Also, similar to the circumstances in Kaminski, appellants would not have had the opportunity to assault the victim absent his parents’ entrusting him to their care.
Not cited by either party is the related case of People v. Secor, 279 Ill. App. 3d 389, 664 N.E.2d 1054 (1996), which cites Kaminski and expands the court’s reasoning beyond the familial relationship. In Secor, the court affirmed a conviction of sexual assault against a fourteen-year-old victim who was spending the night with the appellant’s son in their home. The appellant was not a stranger to the victim, but rather a friend and neighbor of the victim’s family. The court determined that although the appellant and victim were not related, their relationship raised a strong inference of trust and supervision; and further, that the appellant’s function in that relationship could be characterized, at a minimum, as that of a babysitter or chaperone. This situation is analogous to the instant case. Under the facts of this particular case, we find that there was sufficient evidence from which the jury could have determined that the appellants were in a position of trust or authority in relation to the victim.
On June 17, 2002, the State amended the information against appellants, reducing the charge from rape to sexual assault in the first degree. This occurred approximately eight days before trial, which was scheduled for June 25 and 26, 2002. The day before the trial, appellants filed a joint motion for continuance, asserting lack of time to prepare an adequate defense on the amended charge. On the day of trial, in a pretrial hearing, the motion was heard and denied by the trial court. Appellants appeal that denial as reversible error.
Rule 27.3 (2003) of the Arkansas Rules of Criminal Procedure states that a trial court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case. When considering a trial court’s denial of a motion for continuance that is premised on a lack of time to prepare, the appellate courts review the totality of the circumstances. Wood v. State, 75 Ark. App. 22, 53 S.W.3d 56 (2001). The moving party bears the burden of proving prejudice, and we will not reverse absent a showing of abuse of discretion. Id. Prejudice is demonstrated by showing what an attorney failed to do that could have been done, or what an attorney did that would not have been done, if afforded more time. Id. Additionally, an appellant must not only show prejudice on the part of the trial court, but also that the prejudice amounts to a denial of justice. See Smith v. State, supra, 352 Ark. at 106, 98 S.W.3d at 443.
Appellants argue that while they were prepared to defend the charge of rape, the amended charge of sexual assault in the first degree required them to change their defense. They claim that while the charge of rape was pending, they intended to rely on the defense that the victim was not mentally defective or mentally incapacitated, which was a required element on the particular charge of rape filed in the case. They assert that they needed additional time to research the undefined, challenged' terms of the statute, and that they might have been able to argue that the statute was unconstitutionally void for vagueness because of the undefined terms. However, appellant Murphy’s attorney specifically stated at the pretrial hearing, “I’ve tried to research it, Judge, and I couldn’t find any case law at all on it.” The trial court determined that the week between the amendment of the information and scheduled trial date was adequate time to research other sources for definition of the challenged terms and that it was not mutually exclusive for appellants to be both the victim’s friends and temporary caretakers.
Appellants also state that had their motion been granted, they could have potentially located additional witnesses to specifically address whether the victim was as dependent on adults as his parents contended. They allege that witnesses could have been procured to testify as to the relationship between the victim and appellants and whether, in fact, they were looked upon by either the victim or his parents as temporary caretakers or persons in a position of trust or authority.
The State asserts that appellants were not diligent in seeking a continuance, and we have stated that an absence of due diligence will suffice as grounds to deny a continuance. See Woods, supra. Although the information was amended eight days before the trial was set to begin, appellants waited until the day before trial to file their motion for continuance, claiming there was inadequate time to prepare their defense to the new charge. The State is entitled to amend an information at any time prior to the case being submitted to the jury so long as the amendment does not change the nature or degree of the offense charged or create unfair surprise. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). The State alleges that the reduction in the charge from a Class Y felony to a Class A felony, both of which are sexual offenses, was not a change in the nature or degree of the offense. The State likewise argues that there was no undue surprise because the facts of the case and the proof of the crime, i.e., the relationship between the appellants, the victim, and the victim’s parents, remained the same.
We agree with the State’s argument that based on the totality of the circumstances test, the trial court properly denied appellants’ motion for a continuance. However, we disagree with the argument that the proof under the two charges remained the same. Appellants were initially charged with rape pursuant to Ark. Code Ann. § 5-14-103, which reads in part:
5-14-103. Rape.
(a) (i) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(A) By forcible compulsion; or
(B) Who is incapable of consent because he is physically helpless, mentally defective, or mentally incapacitated ...
There is no language in that statute regarding the challenged terms, “temporary caretaker,” or “person in a position of trust or authority.” Notwithstanding, we affirm on this point because there is evidence from which the trial court could find that the appellants’ lawyers had sufficient time to research the new issues and were less than diligent in filing their motion for continuance.
Affirmed.
Stroud, C.J., and Bird, J., agree.
The appellants knew the Caters through the victim’s stepmother, Sherrie Cater, who was employed as an in-home-aide for appellant Ray’s mother.
There is conflicting testimony as to whether the victim or the appellants asked for permission, but it is undisputed that the Caters gave permission for their son to go.
Ill. Rev. Scat. Ch. 38,para. 12-13(a)(4) (1989).
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osephine Linker Hart, Judge.
This is an appeal from a summary judgment in a declaratory-judgment action to determine the validity of an agreement to sell real estate and a counterclaim for specific performance of that agreement. The trial court declared the purported agreement void, quieted title to the property, and dismissed the counterclaim for specific performance. We affirm.
On February 13, 2002, appellee City of North Little Rock, hereinafter referred to as “city” and appellant Development & Construction Management, Inc. (DCM), executed a “Real Estate Purchase and Sale Agreement” (the document). The document purported to be a contract for the city to sell to DCM two parcels of land: “one consisting of approximately seven acres, more or less, (“Parcel A”), more particularly described on Exhibit A-l attached hereto, and the second consisting of approximately four acres, more or less, (“Parcel B”), more particularly described on Exhibit A-2 attached hereto.” Neither Exhibit A-l nor A-2 contained a description; instead, the following clause appeared on both exhibits: “(TO BE AGREED UPON BY THE PARTIES UPON EXECUTION BY SELLER).” Although paragraph 6(b) of the document required the city to provide a survey on or before thirty days after the execution of the document, this was not done by the city.
The purchase price of the property was to be determined pursuant to paragraph 4 of the document. The total purchase price was to be the amount determined by multiplying the Parcel A unit price ($4.00) and the Parcel B unit price ($2.06) by the actual number of square feet of useable land located within each parcel as determined by the parties and adding the sums together. The “useable land” within a parcel was defined as “the land that, in light of its location within the Parcel and the easements and other encumbrances to which it is subject, is reasonably useable for development or construction of improvements, including parking lots and driveways.” The document further required the parties “to negotiate in good faith [and] agree upon the number of useable square feet located within the Parcels based upon the Survey and available title information.” Any such agreement was to have been completed on or before ten days prior to the end of the inspection period set out in the document and was to have been evidenced by a memorandum or other writing signed by both parties. No memorandum or other writing has ever been executed by the parties pursuant to these provisions of the document.
Appellee filed this declaratory-judgment action on June 22, 2001, seeking a declaration that the document was unenforceable because it did not contain a property description and because appellant failed to timely make an escrow deposit. Appellee also sought to quiet title to the property.
Appellant answered, denying that the document was unenforceable or that it had breached the terms of the document. Further, it asserted that the city had failed to provide a survey of the property as required by the document. Appellant also pled the affirmative defenses of laches, unclean hands, and total breach by appellee. In its counterclaim, appellant sought specific performance of the document or, in the alternative, damages for breach of contract. In its answer to the counterclaim, the city argued that no contract existed and asserted the affirmative defenses of the statute of frauds, estoppel, failure of consideration, and waiver.
On August 16, 2002, the city filed its motion for summary judgment, alleging among other things, that the document did not satisfy the statute of frauds because it lacked essential terms required of a contract for the sale of land. Specifically, the city argued that the document did not contain a meaningful description of the lands to be sold and a sale price for the land. In support of its motion, the city presented the deposition of David Carl, president of appellant, who admitted that he and the mayor had not agreed to a description of the property in writing. Carl also admitted that the document did not state the total square footage to be acquired and that he did not know the total square footage. The city also presented the affidavit of Mayor Patrick Hays in which the mayor stated that the parties never reached an agreement on the description of the property. In opposition to the city’s motion, appellant presented the affidavit of Carl in which he stated that the land was well known to himself and Hays. Carl also stated that the city did not provide a survey, that DCM, with approval of the- city, obtained a survey, and that the city never objected to the survey. Appellant also presented the deposition of Hays in which he generally described the location of the property and denied that there was a contract.
In a letter opinion dated December 19, 2002, the trial court granted the city’s motion, concluding that the agreement was not a contract for the sale of real property and thus not enforceable because it did not contain essential elements, i.e., the description of the land to be sold and the total sale price term. The trial court noted that appellant failed to meet proof with proof. The trial court granted the city’s request to quiet title and dismissed appellant’s counterclaim for specific performance. A decree was entered accordingly, and this appeal followed.
On appeal, this court need only decide if the grant of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). The burden of sustaining a motion for summary judgment is on the movant. Id. All proof submitted must be viewed in the light most favorable to the party resisting the motion, and any doubts or inferences are resolved against the moving party. Id. Once the moving party has established a prima facie entitlement to summary judgment by ■affidavits or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. Summary judgment is appropriate under Ark. R. Civ. P. 56(c) when there is no genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Id. Summary judgment is not appropriate where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Lee v. Hot Springs Village Golf Sch., 58 Ark. App. 293, 951 S.W.2d 315 (1997).
Appellant argues on appeal that the trial court erred in granting summary judgment on the basis that a valid contract did not exist. Appellant divides its argument into three subparts: that the document satisfied the statute of frauds, that the price was determined in the document, and that the document reflected a “meeting of the minds.”
Appellant first asserts that the document satisfies the statute of frauds. On the other hand, the city argues that the document does not satisfy the statute of frauds because Exhibits A-l and A-2 were not agreed upon prior to the execution of the document based, on the theory that something cannot presently reference something not yet in existence. See Brown v. Mitchell, 225 Ga. 115, 166 S.E.2d 571 (1969). However, this argument is refuted by the document itself. Paragraph 17 provides in part:
Legal Description. The parties mutually acknowledge and agree that the description of the Property as set forth in Section 1 and Exhibits A-l and A-2 is subject to modification upon completion of the Survey, and, as a result, the description to be used in the deed may change after the Execution Date of this Agreement....
Thus, the parties expressly contemplated that there would be more negotiations in order to complete the description and the purchase price of the agreement.
Oral evidence may be resorted to only for the purpose of identifying the description contained in the writings but not for the purpose of locating the land and supplying the description which the parties have omitted from the writings. Creighton v. Huggins, 227 Ark. 1096, 303 S.W.2d 893 (1957); Moore v. Exelby, 170 Ark. 908, 281 S.W. 671 (1926); Richardson v. Stuberfield, 168 Ark. 713, 271 S.W. 345 (1925). Other cases refer to this rule as requiring the writing itself to furnish “keys” to locating the property. See Van Dyke v. Glover, 326 Ark. 736, 934 S.W.2d 204 (1996); Sorrells v. Bailey Cattle Co., 268 Ark. 800, 595 S.W.2d 950 (Ark. App. 1980); Boensch v. Cornett, 267 Ark. 671, 590 S.W.2d 55 (Ark. App. 1979). Appellant argues that the document does furnish “keys” to its location because paragraph 9(h) provides that Parcel A abuts Karrot Street, Broadway Avenue, and Riverfront Drive and Parcel B abuts Riverfront Drive, while paragraph 9(m) provides that the property is zoned “C-6” by the city. Appellant asserts that, because the documents necessary to fashion a proper description of the property were solely within the control of the city, the city should be estopped to deny the validity of the agreement. It is true that we have held that the issue of estoppel is generally one of fact. See, e.g., Dickson v. Delhi Seed Co., 26 Ark. App. 83, 760 S.W.2d 382 (1988); Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 (1988). Estoppel is an affirmative defense required to be specifically pled under Ark. R. Civ. P. 8(c). However, we are unable to consider appellant’s estoppel argument because we do not address arguments made for the first time on appeal or theories upon which the trial court has not ruled. See Presley v. Presley, 66 Ark. App. 316, 989 S.W.2d 938 (1999).
Here, estoppel was not pled in appellant’s answer and counterclaim, although the affirmative defenses of laches and unclean hands were pled. Further, estoppel was not specifically mentioned by appellant in argument on the motion. Other than in the context of the estoppel argument, appellant does not specifically argue that the document, together with the survey, provides a description of the property to be conveyed. Carl never states in his affidavit that the parties reached an agreement as to the description of the property, only that the identity of the property to be conveyed was never in doubt. Further, the survey was not introduced into evidence.
In Creighton v. Huggins, supra, the supreme court reversed a grant of specific performance where the contract for sale of realty contained a description (a street number) that covered only part of a larger tract owned by the vendor and there were no visible lines or signs on the ground to identify division, and a determination of what part of the larger tract was intended to be included could not be made without resorting to parol evidence.
In Routen v. Walthour-Flake Co., 221 Ark. 354, 253 S.W.2d 208 (1952), the land to be sold was described in the contract as “16 acres B 67 Highway East at Fairfax Crossing.” The appellant brought suit for specific performance of the contract, and the trial court dismissed the complaint. On appeal, the appellant contended that oral testimony should be permitted for the purpose of locating and identifying the land. The supreme court disagreed and affirmed. The supreme court also disapproved of certain language in Moore v. Exelby, supra, which appeared to allow extrinsic evidence that the parties definitely understood the property to be conveyed to satisfy the requirement that the land be described.
In the present case, we hold that the document does not adequately furnish a description as to the property. The only description in the agreement that attempts to satisfy the statute of frauds is that Parcel A is bound by Karrot Street, Riverfront Drive, and Broadway Avenue and that the tract is zoned “C-6.” There is no indication of where Parcel B is located relative to Parcel A, except that it is bounded by Riverfront Drive. Therefore, Creighton v. Huggins, supra, controls the outcome of this appeal because, where only a smaller part of a larger tract is described, the description is insufficient to comply with the statute of frauds as to a description of the entire tract.
As its second subpoint, appellant argues that the price term is contained within the document. The supreme court stated in Van Dyke, supra, that a writing may fail the statute of frauds where it does not adequately set out the time and method of payment. In the present case, the document provides that the purchase price shall be determined by adding the Parcel A price of $4.00 per square foot to the Parcel B price of $2.06 per square foot and subtracting six per cent of that sum from the total. The price of each parcel is determined by the number of useable square feet within each parcel based on the survey and other title information. The document then requires the parties to negotiate the number of useable square feet within each parcel. While the document itself contains an adequate formula for determining the purchase price, the price itself is dependent on a survey and a negotiated agreement that described the usable land to be conveyed. Appellant admitted as much in the hearing on the motion for summary judgment. Thus, the parties agreed that they would negotiate a final purchase price after the completion of the survey. Therefore, the document was in the nature of an agreement to engage in future negotiations. Such agreements are generally void because they fail to contain all of the essential terms. Ultracuts Ltd. v. Wal-Mart Stores, Inc., 70 Ark. App. 169, 16 S.W.3d 265, on review, 343 Ark. 224, 33 S.W.3d 128 (2000); see also Rhode Island Five v. Medical Assocs. of Bristol County, Inc., 668 A.2d 1250 (R.I. 1996) (holding that writings that contained issues not fully addressed and left for further negotiations did not indicate a “meeting of the minds” and thus creation of a contract).
For its third subpoint, appellant argues that there was a meeting of the minds on all essential terms. Appellant relies on Thurman v. Thurman, 50 Ark. App. 93, 900 S.W.2d 221 (1995). However, Thurman is distinguishable because the written agreement in that case contained all of the essential terms while the document in the present case lacks the essential terms describing the land to be sold and the price to be paid. Appellant also argues that there was never any dispute as to the exact property involved in this transaction. We disagree and reiterate:
[Bjefore an agreement becomes binding there must be a meeting of the minds of both parties as to all terms. A meeting of the minds is defined as an agreement reached by the parties to the contract and expressed therein, or as the equivalent of mutual assent and mutual obligation.
Moss v. Allstate Ins. Co., 29 Ark. App. 33, 36, 776 S.W.2d 831, 833 (1989) (citations omitted). Here, there was no meeting of the minds.
Affirmed.
Crabtree and Roaf, JJ., agree.
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McCulloch, C. J.
Appellee was a transient guest at appellant’s hotel in Forrest City, Arkansas, on Novem ber 30,1917, and afterwards instituted this action against the latter to recover the value of certain of his wearing . apparel which it is alleged was stolen from his room in appellant’s hotel on the day mentioned above. The action originated before a justice of the peace, but was tried before a jury in the circuit court on appeal, and, after all the testimony was introduced, the court gave a peremptory instruction in favor of appellee.
The testimony shows that appellee was, as before stated, a transient guest at appellant’s hotel on the day named and several days prior thereto, and that between the hours of 3 and 5 o’clock p. m. appellee’s wearing apparel, a suit of clothes, an overcoat, a hat, a pair of shoes and a suit of underwear, was stolen from his room at the hotel, and has never been restored to him. The testimony tends to show that the articles were stolen by two other guests at the hotel who left town that afternoon, and who were subsequently apprehended in a near-by city, but appellee’s wearing apparel was not recovered.
Appellee was temporarily in Forrest City as an electrician engaged in certain railroad work, and spent the nights in his room at the hotel, leaving each morning to be absent throughout the day while engaged at work. He was absent from the room during that day, and when he returned to the room late in the afternoon discovered that his wearing apparel had been stolen. The room was not locked. There was a lock on the door, but no key had been furnished to appellee to use in locking the room when he left it. He had a key of his own which, after the loss of the property, it was found would lock the door, but appellee testified that he did not know up to that time that the key would fit the lock. No request was made by appellee for a key, and it is disclosed in the testimony that it is customary not to lock the doors in the hotel. Appellee testified that the wearing apparel cost him the aggregate sum of $85, and that he had worn the clothing only a short time — a part of it two weeks, and some of it a month or two. The court directed the jury to return a verdict in appellee’s favor for the sum of $50.
We decided in the case of Pettit v. Thomas, 103 Ark. 593, that the keeper of a hotel (quoting from the syllabus) “is an insurer of the property of his guest committed to his care and liable for any loss thereof, not arising from the act of Grod or the public enemy, or the neglect or fraud of the guest himself.” That was stated to be the common law rule on the subject, and that it was applicable in this State in the absence of a statute changing it. That case was decided in the year 1912, but since that time the law on that subject has undergone a material change by the enactment of the act of March 29,1913. See Acts 1913, page 934. The first section of that statute provides, in substance, that hotel keepers who keep a safe on hand suitable for the custody of moneys, jewelry and other valuable articles, and who keep locks on the doors of the sleeping rooms used by the guests, and who post a copy of that section of the statute in conspicuous places in the hotel, shall not be liable to guests on account of loss of such articles, unless the same are tendered to the hotel keeper for safe keeping and such tender is refused. Section 2a of the statute provides that guests at hotels, upon delivering to the hotel keeper or his servants any baggage or other articles for safe keeping, except such as are taken to the room of the guest, must demand a check or receipt to evidence the fact of such delivery, and that the keeper of the hotel shall not be liable for loss or injury of such property “unless the same shall have been actually delivered by such guest to such hotel proprietor or to his servants for safe-keeping, or unless such loss or injury shall have occurred through the negligence of such hotel proprietor, or by his servants or employees in such hotel.” The next section reads, in part, as follows :
‘ ‘ Section 2b. (Character of liability as to such other property; limitations.) The liability of the keeper of any inn or hotel, whether individual, partnership or corporation, for loss of, or injury to, personal property placed by his guests under his care, other than that described in the preceding sections, shall be that of a depos itory for hire, except that in case such loss or injury is caused by fire not intentionally produced by the innkeeper or his servants, such innkeeper shall not be liable. Provided, however, that in no case shall such liability exceed the sum of one hundred and fifty dollars for each trunk and its contents, fifty dollars for each valise and its contents, and ten dollars for each box, bundle or package and contents, so placed under his care, and all other miscellaneous effects, including wearing apparel and personal belongings, fifty dollars, unless he shall have consented in writing with such guests to assume a greater liability. * * #”
It is seen from an examination of the statute that section 2b deals with the liability of hotel keepers for injury to or loss of property of guests kept in their rooms, and it is the section which declares the law applicable to the present case. It makes the keeper of the hotel liable as a bailee for hire, and abrogates the common-law liability as insurer. The statute absolves the hotel keeper from liability on account of fire unless caused intentionally by the keeper himself or his servants. A bailee for hire is not liable as insurer, but is held only to ordinary care and diligence. ‘ ‘ If the benefit arising from the bailment is reciprocal,” said this court in Bertig v. Norman, 101 Ark. 75, “then the law requires ordinary care and diligence on the part of the bailee and makes him responsible only for ordinary neglect. And this is the extent of his duty and liability, even though he may be so interested in the property as to make him a bailee for hire. In such case the bailee is liable only for negligence; and such negligence must be proved by the party seeking to make him responsible therefor. The mere loss of the property does not ordinarily fix a liability for the loss upon him, but it must be further ¡shown that said loss arose by reason of his negligence.” Other phases of the law on this subject are illustrated by the decisions of this court in Union Compress Co. v. Nunnally, 67 Ark. 284; James v. Orrell, 68 Ark. 284; Phoenix Cotton Oil Co. v. Pettus & Buford, 134 Ark. 76.
Tested by tbe statutory duty and liability of a hotel keeper, there was enough evidence to warrant a submission to the jury of the issue as to the negligence of appellant in the loss of appellee’s property, and the court erred in giving a peremptory instruction in favor of appellee. Under the peculiar circumstances of this case the jury would have been warranted in drawing an inference either way as to the question of negligence of appellant in failing to afford protection against loss of property of his guests.
The court also erred in arbitrarily fixing the amount to be recovered, for the value of the property was solely a question for the jury to determine.
Reversed and remanded for a new trial.
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McCulloch, C. J.,
(on rehearing). On reconsideration of this case we have reached the conclusion that it was wrong to hold that no prejudicial error was committed in permitting the State to introduce testimony tending to establish the general reputation of the prosecuting witness for truth and morality. If it was error to admit the testimony, it ought not to be said that such error is not prejudicial and does not call for a reversal of the judgment, for that would be to disregard the statute itself, which is mandatory in its terms.
In the original opinion we followed the case of Patrick v. State, but that case was different in that the proof introduced was for the purpose of proving the chastity of the prosecuting witness, and we held that there was no prejudice, because under the law chastity would be presumed in the absence of proof to the contrary. There is, it is true, a presumption of good character on the part of a witness in the absence of proof to the contrary, but the difference in the two cases is that in one there is no statute declaring the testimony inadmissible and in the other there is such a statute, and for the courts to disregard it by holding that, notwithstanding its plain violation, no effect will be given it because it was nonprejudicial would be to nullify the statute.
It seems to us now, on further reflection, that to fortify the credibility of a witness by proof of general reputation, where no attack has been made, is calculated to give undue weight to it, which the statute itself was intended to forbid. State v. Owens, 109 Ia. 1, 79 N. W. 462; Shields v. Conway, 133 Ky. 35, 117 S. W. 340.
The case of Patrick v. State was decided correctly, but anything in the opinion which might appear to hold that the same rule would be applicable to a case of proof of general reputation is now disapproved, and we hold that where testimony is admitted contrary to the terms of the statute, it necessarily calls for a reversal of the judgment.
The Attorney General defends the ruling of the trial court in admitting the State’s testimony in support of the good character of the prosecuting witness for truth and morality on the ground that appellant impeached her credibility on cross-examination and by the introduction of other testimony. Counsel for appellant asked the prosecuting witness if she had not visited the West End hotel, a place which was shown by other testimony to be a house of ill repute, with a man named Wilmot, and spent the night with him. The witness denied that she had done so, but admitted that she went to the West End hotel on another occasion with a party of young people and danced for a short while. She explained that she did not know that the place had a bad reputation. Another witness introduced by appellant testified that the prosecuting witness admitted that she took several drinks of whiskey with appellant and Wilson on the evening the assault was committed and while taking the ride. Appellant and Wilson each testified that the prosecuting witness drank whiskey with them while they were out on the ride and that she admitted to them instances of immoral conduct on her part.
Now, it was .competent, of course, to impeach the credibility of the prosecuting witness on cross-examination by interrogating her concerning particular instances of immorality on her part, but appellant was bound by her answers on that subject and could not introduce witnesses to contradict her. McAlister v. State, 99 Ark. 604.
The testimony as to the admissions of the witness concerning her immoral conduct on the occasion of the alleged assault and also the testimony of other witnesses concerning that misconduct was competent to explain the relations of the parties at the time of the assault, hut it was not competent for appellant to introduce testimony of specific instances of immoral conduct for the purpose of impeaching the character of the witness or her general reputation for truth and morality, and such testimony could not be made the basis for the introduction of testimony supporting her general reputation.
The statute,- it will be readily seen, observes the distinction between general reputation and credibility of a witness, and under it an attack by proof of the latter only will form the basis for the introduction of proof of good character. The credibility of a witness may be im-, peached by proof on cross-examination of specific instances of immorality, or by proof of contradictory statements, but that does not justify the introduction of proof of good character in support of the witness, for the statute in express terms declares that such proof is inadmissible until “general reputation has been impeached.” The following authorities on the subject may be read with interest: Jones on Evidence, § i865; State v. Owens, supra; Tedens v. Schumers, 112 Ill. 263; Shields v. Conway, supra; People v. Gay, 7 N. Y. 378; Harrington v. Lincoln, 70 Mass. 563; Atwood v. Dearborn, 83 Mass. 483; Gertz v. Fitchburg Railroad Company, 137 Mass. 77.
In some of the States statutes similar to our own have been enacted, but none of the States where the above cases were decided have such statutes, as far as we can ascertain, except the State of Kentucky from whom our statute was borrowed in precise language. But all of the authorities are unanimous in holding that only an attack on the credibility of a witness by some form of proof of general reputation will justify the support of the witness by proof of good behavior. In both Kentucky and Massachusetts it was held that proof of conviction of a witness of felony justified the introduction of proof of good -character in support of the witness, but this is on the ground that the taint of the conviction tends to impeach the general reputation of the witness for truth and morality.
The trial court erred in admitting the proof of good character of the prosecuting witness, and that error was prejudicial, or may have been so. The rehearing is, therefore, granted, and for the error indicated the judgment is reversed and the cause remanded for a new trial.
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Wood, J.
Appellee was a county farm demonstration agent in extension work in the South of the State Relation Service under the employment of the United States Department of Agriculture. As such special agent, he filed a claim against Searcy County for the sum of $720 for services rendered by him for the county during the year 1917. The county judge refused to allow the claim, and appellee appealed to the circuit court, and the cause was tried in the circuit court before the judge sitting as a jury.
Appellee testified that he served in the capacity of farm demonstrator for the county for eleven months; that the county owed him for such services the sum of $720, and that he had never been paid; that he tried all the year 1917 to co-operate with the county court; that he invited the judge to assist him in his farm meetings. The judge did not seem to want to take any stock in it. The judge made no objections to appellee, except he said he did not think it was worth anything to the people. Ap pellee devoted his entire time to the work. The county-court and-the tax levying court recommended another man in appellee’s place. Appellee did not confer with the county judge or get his advice and find out whether he was willing for appellee to work. However, about the last of December, 1916, or the 1st of January, 1917, he wrote the justices of the peace to find out whether they wanted - him, and he received letters from twenty-two or twenty-three justices of the peace, which was a majority, stating that they wanted him.
J. N. Bromley testified that he was the county judge of Searcy County from the latter part of December, 1916, and during all of the year 1917; that appellee was not acting as county farm demonstrator of Searcy County under his direction or with his consent, but on the contrary he was acting in direct opposition to his wishes; that he notified appellee of that fact; that no contract was ever made with appellee to do anything in 1917 for which the county was indebted to him; that he told the appellee and also the employees of the government who came with him, that the appellee was not qualified, and that he (the county judge) would not contract with him. Judge Bromley stated that he was not opposed to co-operation with the Department of Agriculture in the farm demonstration business of Searcy County, and that he tried to co-operate with them. It was agreed and entered of record that the levying court of Searcy County during the October term, 1916, made an appropriation of $750 for farm demonstration work.
The circuit court rendered judgment in favor of the .appellee for the amount of his claim, from which is this appeal.
Act 45, Acts 1911, provides as follows: ‘ ‘ The courts (quorum courts) are authorized and empowered to annually appropriate such an amount as may be deemed necessary, to be used at the direction of the county judge, in co-operation with the United States Department of Agriculture, to aid said department in carrying on the Farmers’ Co-operative Demonstration work in such county. Any claim against said appropriation shall he examined and .allowed as required by law of other claims against the county.” The only question presented is whether the money appropriated by the quorum court under the authority of the above statute can be expended for farm demonstration work, except under the direction of the county judge, and, as in the present case, not only without his direction but positively contrary to his will.
The statute, as we construe it, gives a plain negative answer to the question, for its express language is that the amount to be appropriated is “to be used at the direction of the county judge.” The only authority for the appropriation and the use of the money is to be found in the statute. The Legislature did not vest in the quorum court the power to make contracts for the expenditure of the money appropriated by it, and it was obviously the purpose of the Legislature to require that the money should be expended under the direction of the county judge. The Legislature designated the officer who should have that power, and it was not within the province of the quorum court, or the circuit court, or any other functionary, to .substitute some one else in place of the agent named by the Legislature.
The language, as we construe it, is mandatory, and contracts made under and by any other authority than that of the county judge create no liability against the county. The judgment is, therefore, reversed, and the cause will be dismissed.
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McCulloch, C. J.
This is a proceeding instituted by appellant in the circuit court on certiorari to quash the judgment of a justice of the peace in favor of appellee. The circuit court refused to quash the judgment and an appeal has been prosecuted from that order.
The proceedings before the justice of the peace were brought up to the circuit court on the return of the writ, and it appears from the face of the record made by the justice of the peace that appellee’s action against appellant was begun on October 31, 1917, for the recovery of judgment on a promissory note for $25 with accrued interest, and the .summons returnable on November 6th, was duly issued and delivered to the sheriff of the county for service. On the return day of the writ appellant failed to appear, and judgment by default was rendered against him in favor of appellee for recovery of the debt, interest and cost. The original process, which is brought up in the record, shows the return of the sheriff in the following form:
“State of Arkansas
County of Logan,
Shoal Creek Township.
“This writ which came to hand on the 31st day of October, 1917, have this............day of ........................ 190......duly served by delivering a true copy hereof to the premises of O. M. Nelson.”
The record of the justice of the peace shows that on November 21, 1917, appellant, appeared before that court in person and by attorney, and filed a motion to quash the judgment and the execution issued thereon for want of proper service- of summons, and that on the hearing of the motion the court found that there had been sufficient service and overruled the motion. The writ of certiorari in the present proceeding was applied for and issued on November 28, 1917. The case was heard below on the record of the justice of.the peace, and an agreed statement of facts concerning the method in which the process issued by the justice of the peace was served.
It is shown in the agreed statement of facts that the sheriff left a copy of the writ with a neighbor of appellant who later delivered the same to appellant, and that on a still later date, five days before the return date, the sheriff met appellant on the street- at the county site of the county and informed appellant of the fact that the summons had been left with one of appellant’s neighbors and further “informed defendant of the case, that it was before P. A. Newman, J. P. Shoal Creek Township, and set for November 6,1917.”
There is no conclusive presumption of regularity attending the judgments of justices of the peace and all jurisdictional facts must sufficiently appear; otherwise, such judgments are void. Levy v. Ferguson Lumber Co., 51 Ark. 317. Again, it has been said that the records of justices of the peace “are not required to be strictly formal and great latitude is indulged in permitting the facts upon which jurisdiction is based to be shown. Their affirmative recitals of jurisdiction are only prima facie evidence at best.” Visart v. Bush, 46 Ark. 153.
The statute prescribes the following method of service of process issued by a justice of the peace:
‘ ‘ The service of process shall be by delivering to the defendant a copy of the summons, and if he refuses to receive it, the offer of it to him shall be a sufficient service; or by leaving a copy of such summons at the usual place of abode of the defendant, with some person who is a member of his family over the age of fifteen years; or by reading it to and in the presence of the defendant.” Kirby’s Digest, Sec. 4569.
The return of the sheriff on the process shows that it was served by leaving a copy thereof at the premises of the defendant. That was not sufficient service, as the statute requires that a copy must be left “at the usual place of abode of the defendant, with some person who is a member of his family over the age of fifteen years.” The delivery of the copy by a neighbor with whom it was left was, of course, not sufficient.
It is argued that the statement made by the sheriff to appellant concerning the writ of summons was sufficient service under the statute. According to the agreed statement of facts, the sheriff met appellant on the street and told him about the outstanding writ and informed him of the pendency of the action and the return date. The statute permits service either by delivery of a copy to the defendant or by offering a copy where delivery is refused, or “by reading it to and in the presence of the defendant.” It is not sufficient merely to inform the defendant of the contents of the writ. Where a copy is neither offered nor delivered, it must be actually read to the defendant in order to constitute valid service under the statute.
We are of the opinion, however, that appellant is barred from the remedynow sought by certiorari to quash the judgment on account of his appearance before the justice of the peace for the purpose of quashing the judgment, and his failure to appeal from the judgment of that court refusing to do so. It will be noted that tbe appearance before tbe justice of tbe peace to quash the judgment was within thirty days after the rendition of the judgment. That fact may not be important in determining the finality of the judgment of the justice, but it is worthy of mention that it was within the time allowed by the statute for an appeal to the circuit court. A justice of the peace has jurisdiction to entertain a motion to quash a judgment on account of insufficient service. Gates v. Bennett, 33 Ark. 475; Knight v. Creswell, 82 Ark. 330.
The remedy by certiorari was also open to him, but he elected to appear before the justice of the peace and the judgment on his motion is conclusive. He could not submit himself to a court having jurisdiction to render relief without binding himself by that election, and his failure to appeal from the adverse judgment bars him from seeking other relief which he otherwise might have sought. Ederheimer v. Carson Dry Goods Co., 105 Ark. 488.
The principle announced in the case just cited is, we think, conclusive of this question. In that case it was a suit on a foreign judgment. The defendant had appeared before the foreign court and moved to quash the service and failed to appeal from the adverse decision of that question. In disposing of the matter here we said: “Appellee, having elected to submit the issue as to whether the circuit court of Missouri had jurisdiction of its person to render the judgment sued on herein, is bound by the judgment of that court on that issue, so long as same stands unreversed by the courts of Missouri.” In that case the motion was to quash the service before judgment, but the principle announced is the same as involved an this case. It is not a question of waiver of process by appearance, but it is one as to the finality of the decision of a question of a court which had the jurisdiction to hear and determine that question. Appellant appeared before the justice of the peace who had jurisdiction to determine whether or not there had been proper service in the case, and the decision of that matter by the justice was conclusive. The decision of the Missouri court which was involved in the case of Ederheimer v. Carson Dry Goods Company, supra, was by a court of superior jurisdiction in that State, and the question of jurisdiction would have been open for inquiry when suit was brought in this State upon the judgment rendered there if it had not already been expressly decided. But we held that, even though the defendant appeared in the Missouri court for the sole purpose of quashing the service, and not for any other purpose, an adverse decision, unappealed from, was conclusive in a suit here to enforce the judgment.
The judgment of the circuit court in refusing to quash the judgment of the justice of the peace was correct for the further reason that the petition for certiorari does not set forth any defense to the original action in which the judgment was rendered. Gates v. Hayes, 69 Ark. 518.
We conclude, therefore, that the decision of the circuit court was correct, and the judgment is affirmed.
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Me Cuino ch, C. J.
Appellant was the owner of certain real estate in Arkansas county, and conveyed it to appellee Muense by deed absolute in form with covenants of warranty. It is conceded, however, that appellant was indebted to Muense in a certain sum and that the deed was intended by both parties as a security for said debt. Muense sued appellant in the chancery court of Arkansas County, setting forth the fact that the convey anee in controversy was intended by the parties as a mortgage and prayed for a foreclosure, and the court rendered a final decree ordering the lands sold to satisfy the said indebtedness. The property was purchased by Muense at the commissioner’s sale, which was duly confirmed by the court, and Muense thereafter sold ,and conveyed the property to his co-appellee. Appellant asserted the right to redeem the property under the .statute which reads as follows:
“In all cases where real property is sold under an order or decree of the chancery court, or a court exercising chancery jurisdiction in the foreclosure of mortgages and deeds of trust, the mortgagor, his heirs or legal representatives, shall have the right to redeem the property so sold, at any time within.one year from date of sale, by the payment of the amount for which the property was sold, together with interest thereon at the rate borne by the decree or judgment, and the costs of foreclosure and sale; provided, that the mortgagor may waive such right of redemption in the mortgage or deed of trust so executed and foreclosed; provided, that this act does not apply to any contracts, mortgages, or deeds of trust now in existence, or to any suits now pending.” Kirby’s Digest, § 5420.
The controlling question in the case is whether or not the right of statutory redemption exists from a sale under decree of a chancery court foreclosing an equitable mortgage — an absolute conveyance of land intended by the parties as security for debt. The question is not entirely free from doubt, but a majority of the judges reach the conclusion that the statute does not apply, and that there is no right of redemption from such a sale. .We have a statute providing that “in suits to foreclose or'enforce mortgages or deeds of trust, it shall be sufficient defense that they have not been brought within the period of limitation prescribed by law for a suit on the debt or liability for the .security of which they were given.” Kirby’s Digest, Sec.- 5399. But this court held in Sturdivant v. McCorley, 83 Ark. 278, that the statute had no .application to equitable mortgages evidenced by absolute deeds. In disposing of that point the court said: “In other words, the statute of limitations (Kirby’s Digest, sec. 5399) as to mortgages does not apply to equitable mortgages of this kind evidenced by absolute deeds without any written defeasance.” In the case of Priddy & Chambers v. Smith, 106 Ark. 79, we had before us the -questionwhether or not the statute now under consideration was applicable so as to give a right of redemption from a sale under a decree of chancery court foreclosing a vendor’s lien, .and we decided that the statute did not apply. In disposing of the matter, we .said: “ It is manifest that the Legislature merely meant to extend the right ■of redemption to decrees for foreclosures of mortgages, and not to all decrees enforcing liens or other equitable mortgages.' It is not accurate to .say that a vendor’s lien is an equitable mortgage, for such a lien is merely treated in equity as a mortgage and enforced as such. The manifest design of the Legislature in both of the statutes was to preserve the right of redemption under a legal mortgage, whether the foreclosure be made by a sale under the power contained in the instrument or by decree of the chancery court.” In the discussion on petition for rehearing in the same case, we said this: “We do not mean to hold that a mortgage must contain a power of sale in order to fall within the statute. But what we do hold is, that the instrument foreclosed must be one which is, or was intended by the parties to be, of the character that falls within the definition of the word ‘mortgage’’in its legal sense.”
We think that the decisions just referred to are conclusive of the question now before us, and that the .statute has no application to the right of redemption in a case like this. This is made more manifest when we consider the fact that the only provision made by the Legislature for waiving the right of .statutory redemption is that it may be done “in the mortgage or deed of trust so executed and foreclosed.” Tate v. Dinsmore, 117 Ark. 412. There is no reason to suppose that the Legislature intended to grant the right of redemption in any instance without conferring the power to waive that right, and yet, if we were to hold that the right of redemption under an equitable mortgage was conferred, there is no way in the statute provided for a waiver of that right. Hence, it necessarily follows from a true construction of the language of the statute that it was not intended that there should be any statutory right of redemption except under foreclosure sales of instruments in the form of mortgages or deeds of trust.
The right of redemption after sale does not exist except by virtue of statute, and since we hold that the statute in question has no application to this kind of foreclosure sale, it follows that the court was correct in denying appellant that right. Deeree affirmed.
Hart and Smith, JJ., dissent.
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Hart, J.,
(after stating the facts). The first contention of the defendant is that the contract, being unilateral or optional, can not be enforced even in a court of equity for want of mutuality. It is well settled in this State, as elsewhere, that an optional contract based upon a valuable consideration does not lack mutuality and that equity will compel .a specific performance of such a contract when it has been accepted by the party seeking to enforce it. Meyer v. Jenkins, 80 Ark. 209; Indiana & Ark. Lumber & Mfg. Co. v. Pharr, 82 Ark. 573; Mier et al. v. Hadden (Mich.), 12 A. & E. Ann. Cas., p. 88 and note; Cummins v. Beavers (Va.), 106 Am. St. Rep. 881 and note.
In the present case the contract does not contain any description whatever of the property. It is true that it has often been judicially declared that the main office of the description in' a deed is not to identify the land conveyed, but to furnish means of identification. In the application of this rule, when there is a general designation of the property intended to be conveyed, parol evidence is competent to show what the proper description covers. For example: One person conveys to another his home farm. To identify the land, resort may be had to extrinsic evidence, to show what was meant by the home farm. Parol evidence has always been admitted to give effect to a written instrument, by applying it to its subject matter. Dorr v. School District No. 26, 40 Ark. 237. In the present case, however, the written instrument does not contain any description of the land intended to be conveyed. The location of the land would have to be wholly ascertained by parol evidence. The written contract furnishes no data whatever, and there is nothing in it to be aided by the introduction of extrinsic evidence. In other words, before a court of equity is justified in requiring the specific performance of a contract to convey land, the property must be accurately described; the contract must disclose a description which is in itself definite and certain, or one which is capable of being made certain by other proof, the contract itself furnishing the key by which the property may be identified. Fordyce Lumber Co. v. Wallace, 85 Ark. 1.
It has been held by this court that delivery of possession of land to the vendee under a parol contract of purchase takes the case out of the operation of the statute of frauds; and that possession alone is sufficient part performance of an oral contract for the sale of land to sustain a decree for a specific performance. But possession alone, in order to be sufficient, must be taken pursuant to the contract. Where the alleged purchaser is already in possession as tenant, and merely continues in possession after making the contract, that alone is not sufficient to take the case out of the operation of the statute. Phillips v. Jones, 79 Ark. 100, and Moore v. Gordon, 44 Ark. 334. In the instant case Tucker was the tenant of Ashcraft and merely continued in possession of the land after making the oral contract for the purchase of it. Under the authorities just cited, this was not sufficient part performance to warrant specific performance.
It is also contended that Tucker made valuable improvements on the land which constituted such part performance as took the case out of the statute of frauds. According to the testimony introduced by the plaintiff he cleared between two and three acres of the land and dug some ditches and the improvements thus made by him were worth forty or fifty dollars.
According to the testimony introduced by the defendant, the plaintiff did not clear any land and did not dig any ditches. Bushes had begun to grow up on the land on account of lack of proper cultivation and he only cut these off in order to make the land easier to cultivate. He chopped off two or three acres of the land in this way, but it was done in different portions of the field. He only cleared out the ditches as he had been accustomed to do every year during the period of his tenancy. Even according to the testimony of the plaintiff, the improve- meats made by him were not of that valuable and substantial character that would render it inequitable to refuse him the relief prayed for in his complaint. Young v. Crawford, 82 Ark. 33.
It follows that the decree will be reversed and the cause will be remanded with directions to the chancellor to dismiss the complaint of the plaintiff for want of equity.
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Smith, J.
Appellant, J. B. Harris, delivered to appellee, Western Union Telegraph Company, a message for transmission to'Massey & Perrin, who were brokers and commission merchants in tbe city of Chicago. Tbe message delivered to tbe company for transmission read: “Sell ten July corn stop five cents both ways.” But, as delivered to tbe address in Chicago, it read: “Sell ten July corn stop four cents both ways.” Because of tbe error stated, appellant claims to have sustained an actual money loss of $400, and a loss of profit of $500, and be brought this suit to recover these damages. The court below sat as a jury, by consent, and found that Harris was not entitled to recover any sum except tbe price of the message, and rendered judgment accordingly, and this appeal has been duly prosecuted.
Tbe recovery of damages is resisted on two grounds: First, that tbe message was sent from Little Rock on one of tbe forms of tbe company limiting liability for unrepeated messages to tbe amount paid for sending, and limiting the amount of recovery in any event to $50, there being no greater value stated in tbe message; this blank form having been filed with tbe Interstate Commerce Commission by tbe telegraph company with its tariffs as a part of its rules and regulations. As a second defense, it was insisted that no recoverable damages were proved.
As to tbe validity of tbe limitation found on tbe back of tbe telegraph blank, it suffices to say that we considered this question very carefully in tbe case of Des Arc Oil Mill Co. v. Western Union Tel. Co., 132 Ark. 335, 201 S. W. 273, and tbe conflicting views entertained by tbe members of tbe court are set out in tbe majority and dissenting opinions. The majority held against tbe validity of this limitation, and a recovery can not, therefore, be defeated in this case on that account.
Pursuant to the directions of the telegram, the broker sold 10,000 bushels of corn at $1.41 per bushel, which was the market price in Chicago at the time of the receipt of the telegram. The telegram was intended to give the additional direction to the brokers to buy 10,000 bushels of corn when the market went either up or down five cents; but, :as received, it gave the direction to buy when the market went either up or down four cents. The market went up four cents before it went down, and the brokers bought when it reached that figure. After a further advance of one-fourth cent, without reaching an advance of five cents, the market declined as much as eight cents, and the brokers, having bought when it advanced four cents, did not buy on the decline.
As a result of the error stated, appellant says he was damaged in two respects. First, that inasmuch as he bought corn at $1.45, after having sold a corresponding quantity at $1.41, he lost four cents a. bushel, or, in the aggregate, $400; and, in the next place, that since the market declined five cents before it advanced that much, the brokers would have bought at '$1.36 if he had not previously bought at $1.45, and if he had done so, appellant would have made five cents per bushel, which he lost, in the aggregate $500.
The broker testified that the telegram was an ‘ ‘ open order,” which gave him no discretion about the disposition of the corn, and that the directions contained in the telegram as received were strictly complied with, and that the directions intended would have received the same exact attention had no mistake been made in the telegram.
The testimony affirmatively shows that actual delivery of the corn bought and sold was contemplated by the parties, and the transactions set out above were evidenced by elevator receipts for corn duly assigned.
No damage was asked on account of the 10,000 bush- - els which the broker was directed to sell, as there was no error in the telegram in that respect. The damage claimed relates to the corn which the broker was directed to buy.
The following eases discuss the principle on which such damages are allowed and the rule for the measurement thereof: Western Union Tel. Co. v. Askew, 92 Ark. 136; Western Union Tel. Co. v. Love-Banks Co., 73 Ark. 205; Brewster v. Western Union Tel. Co., 65 Ark. 539; Western Union Tel. Co. v. Aubrey, 61 Ark. 613; James v. Western Union Tel. Co., 86 Ark. 339.
No judgment can be recovered because of the loss of profit, as it must always remain speculative what this profit would have been. Even though it be conceded that, if the broker had not purchased at $1.45, he would have purchased at $1.36, still the profits are conjectural. The market continued to go down until it reached $1.33, and if the transaction had been closed at that figure, there not only would have been no profit but there would have been a loss of three cents a bushel. If the appellant had bought at $1.36 and the market had kept going down, he might have sold at a loss before it reached $1.33, or he might have sold when the market had so far recovered as to let him out whole, ;and we hold, therefore, that no recovery of profits can be had, for any finding in relation thereto must be speculative and conjectural. Brewster v. Western Union Tel. Co., 65 Ark. 539; James v. Western Union Tel. Co., 86 Ark. 339; Western Union Tel. Co. v. Caldwell, 133 Ark. 184, 202 S. W. 232.
We have a different proposition as to the actual loss sustained. The broker had no authority to purchase at $1.45, and would not have done so had the message been correctly transmitted, and the telegraph company is, therefore, liable for the damage approximately resulting on that account. We are asked to make a finding of the damage on this account, but we decline to do so, for the reason that the court below, entertaining a different view as to the law of the case, made no finding on this subject, and upon a trial anew the testimony may more fully develop this point.
Judgment reversed and cause remanded.
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Smith, J.
The parties to this litigation entered into four separate contracts in writing. We set out the material portion of one of these. The others are identical, except different lots are described and different rentals are provided for.
“This lease, made and entered into on this 1st day of December, 1915, by and between the Buffalo Zinc & Copper Company, a corporation organized under the laws of the State of Illinois, hereinafter called lessor, and W. C. Hale, Rush, Arkansas, hereinafter called lessee, witnesseth: That lessor in consideration of the rents to be paid and the covenants and agreements hereinafter to be kept by the lessee, does hereby lease unto lessee the surface ground only to the following described land situated in the county of Marion, State of Arkansas, to-wit: Lot No. 11, in Block No. Seven, Rush, Marion County, Arkansas, according to the plat of Rush recorded in book of town plats in tbe office of the Recorder of Deeds of Marion County, Arkansas. To have and enjoy the same for a term of ten years, beginning on the first day of December, 1915, and ending on the first day of December, 1925. Lessee shall pay as rent to lessor the sum of $240 for the full term of this lease and shall pay the same in advance in installments of $2 on the first day of each month. Lessee shall pay-all taxes and assessments, general and special, imposed on the buildings and improvements on the above described lands and within the time required by law. Lessee shall keep the above described lands and the buildings and improvements thereon free and clear from all mechanics’ liens. If lessee shall have paid or caused to be paid the rent reserved by this lease, and shall have kept and performed all the covenants and agreements of this lease, lessee shall have the right, within sixty days after the expiration of this lease to remove all buildings and improvements put upon the above-described lands by lessee. It is understood and agreed between lessor- and lessee (1) that the title to and the use and enjoyment of any mines, metals, ores, minerals and mineral substances, in on and under the above described lands remain in lessor, and that lessee acquires no title thereto nor the use or enjoyment thereof under or by virtue of this lease; (2) that lessor has and reserves the right to use and enjoy, or suffer to be used and- enjoyed every part of the mines, metals, ores, minerals and mineral substances in, on and under the above described land; (3) that lessor has and reserves the right to use and enjoy, or suffer to be used or' enjoyed the whole or any part of the above described land for the purpose of removing or extracting metals, ores, minerals and mineral substances and for the-purpose of conducting mining operations so as not to interfere with the use and enjoyment by lessee of the surface to the above described land .and the buildings and improvements thereon. Failure of the lessee to pay the rent reserved within thirty days after the same shall be due and payable or a violation by lessee of any covenant or agreement to be kept and performed by lessee shall, at the option of lessor, produce and work a forfeiture of the lease. Notice of forfeiture shall be in writing signed by lessor or its duly authorized agent and served upon lessee either by delivering said notice to lessee or by posting said notice on said demised premises. Upon a forfeiture as above provided, the terms of this lease shall expire and lessor may forthwith enter upon and take possession of said premises together with the buildings and improvements thereon. ’ ’
The case' was heard on an agreed statement of facts, which contained the following recitals:
“It is further agreed that defendant, W. C. Hale, had not at the time of the bringing of this suit made default in the payment of any installment due on said lots or either of them under his contracts with plaintiff or otherwise made default in complying with any requirement of said lease which would work a forfeiture thereof and has not up to the present time made such default. It is further agreed that W. C. Hale, defendant, had erected frame buildings on certain of said lots and had also permitted others to erect frame buildings on certain of said lots under sub-leases which buildings were all constructed for the purpose of carrying on business or trade therein, the same being business houses. That before the bringing of this suit defendant Hale had torn down and removed one of said structures or buildings from said premises or permitted it to be done and had declared his intention and fully intended to tear down and remove other buildings from said premises and convert the same or the proceeds derived therefrom to other uses under the avowed claim that he had a right to do so under his said contracts or leases. It is agreed, before the commencing of this suit, P. T. Glass, agent of the plaintiff, forbade defendant to remove said buildings unless he had paid the full consideration on each lease which he had contracted to pay for the full ten year period thereof; and it is agreed that said defendant informed the said Glass that he claimed the right to remove said buildings, if he saw fit and intended to do so without paying the full consideration mentioned therein, and that it was his intention and purpose to do so and also admitted to said Glass that he had already removed or permitted to be removed from one of said lots a small building which had been erected thereon.”
A temporary restraining order had been granted, enjoining the lessee from removing any of the buildings, and there was a prayer that this order be made permanent. On the final hearing, the temporary restraining order was dissolved, and the cause dismissed for want of equity, and this appeal has been prosecuted to reverse that decree.
The leases were prepared by the lessor and were executed by the parties after filling in the appropriate recitals in the blank spaces of the printed form. Having thus prepared the terms of the contract, it becomes our duty to resolve any doubt which may otherwise exist as to the meaning of these terms against the lessor. Clark v. J. R. Watkins Med. Co., 115 Ark. 166; Ford v. Fix, 112 Ark. 1. Ford Hardwood Lbr. Co. v. Clement, 97 Ark. 522; Gulf Compress Co. v. Harrington, 90 Ark. 256.
The buildings in question were erected under a contract by the express terms of which a right of removal was reserved. They did not, therefore, become a part of the realty, but remained the lessee’s personal property. Harmon v. Kline, 52 Ark. 251; Beauchamp v. Bertig, 90 Ark. 351. The contract did not require the lessee to erect buildings on any of the lots. The lessee had the right to erect buildings or not, as he pleased, and the rent to be paid was not dependent on the lessee’s action in this respect. A fixed rental was provided for in any event. These statements are not questioned.
It is argued, however, that a right of removal would not exist but for the contract, and that the provisions of the contract which gave the right of removal confers that right in the event only that all of the rent shall have been paid for the period of ten years, and shall then be exercised only within a period of sixty days after the expiration of the ten years.
The right of removal is not given by any single clause of the contract, but exists as a matter of law when from the terms of the contract it .appears that the buildings were not to become a part of the realty.
It appears from the agreed statement of facts, as well as from the lease contract itself, that the buildings were erected on the leased premises solely for the purpose of enabling the lessee to carry on a business or trade and were intended for his own use and convenience, and not for the purpose of making or increasing the value of the lots nor the value of their use. The buildings belonged to the lessee, and the contract made it his duty to see that all taxes, general or special, assessed against his buildings were paid by him, and he was charged with the duty of keeping his buildings free and clear from all mechanics’ liens. The lessor reserved the absolute right only to require payment of the rent for the. surface use of the land, from which it reserved the right to extract mineral ores, and the only rights acquirable through a forfeiture were possession of the buildings and improvements and termination of the .surface right to the lots. And, as the right to take possession of the buildings is only given after forfeiture declared, the lessor can not take possession of the buildings so as to prevent the exercise of ownership and control of them by the lessee when no right to declare a forfeiture exists. No right is given the lessor to collect rent except as it becomes due, and the agreed statement of facts contains no showing of irreparable loss, nor that the lessee will not continue the performance of his contract with reference to the payment of the rent. We can not agree with learned counsel for appellant that the right of removal is given upon the condition that it shall be exercised only within sixty days after the expiration of the ten years. Such an intention would probably have been evidenced by the use of the phrase “from and after the expiration of the lease,” or words of similar purport, but the contract provides that the removal may be ‘ ‘ within sixty days after the expiration of the lease.” In 40 Cyc. 2127, the preposition “within” is defined as follows: “In the inner part, or side of; in the limit or compass of; inside the limits of; not going outside of; not later than; not further in length than; not exceeding in quantity; not beyond, used of place or time. The word has a variety of meanings according to the connection in which it is used. Thus it has been used in the sense of abutting on; before; at any time before; in any time not less than; in all parts of; from the date of; for the space of; at or before; during; at any time during; at the end of. In computation of time the word sometimes includes the first and last day, while in other cases they have one or both been excluded.”
In the case pf Field v. Morris, 95 Ark. 275, this court said: “Trade fixtures 'are articles erected or annexed to the realty by the tenant for the purpose of carrying on a trade, and are removable by him during the term, provided the removal does not affect the essential characteristics of the article removed or reduce it to mass of crude materials.’ 13 Am. & Eng. Enc. L. (2 ed.), p. 642, and cases cited in note; Van Ness v. Pacard, 2 Pet. 137. 'Besides being removable on the grounds of public policy, trade fixtures are also removable because, from the nature of the tenure, they are not presumed to have been annexed with the intention of making them permanent additions to the realty. 19 Cyc. 1065b.”
No attempt was made to show that the buildings whose removal were sought to be enjoined could not have been placed on rollers, or in some other manner, without taking them .apart, have been removed from the land, nor does it appear that the buildings which were removed were reduced to a state of crude material. Upon the contrary, the agreed statement of facts recites: “Before the bringing of this suit appellee had torn down and removed one of said structures or buildings from the premises or permitted it to be done, and had declared his intention and fully intended to tear down and remove other buildings from said premises and convert same or the proceeds derived therefrom to other uses.”
We can not say from this recital that the materials of the buildings were not capable of being re-assembled and used elsewhere. The buildings were, therefore, trade fixtures for the purposes of this contract, and a right of removal existed.
Judgment affirmed.
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-Wood, J.
This was a suit by Pattie Barfield as administratrix of the estate of R. H. Barfield, deceased, for the benefit of herself as widow, and Lusky Barfield, the next of kin of R. H. Barfield. The complaint alleged that she had been duly appointed administratrix of the estate of R. H. Barfield; that she was the widow of R. H. Bar-field, and that Lusky Barfield was their minor child; that R. H. Barfield, her husband, was made sick and after-wards died from the effects of poison caused by eating bread made from the flour which was sold to him by the appellant. The complaint alleged that the suffering and death of R. H. Barfield “was caused by said wrongful act of the defendant in selling for nse as human food said flour, which was impure and unwholesome and contained poison as hereinbefore set out, and of the presence of which poison the defendant knew, or should have known in the exercise of that care required of him by law.”
The complaint as to the charge of negligence was the same as that in the case of S. Heinemann v. Pattie Barfield. Other allegations were as to E. H. Barfield’s sickness, suffering and death. There was an allegation that the “deceased contributed to the support of said widow and child and by his death they have been deprived of his companionship and care and of his support. There was a prayer for damages for the benefit of the estate in the sum of $10,000, and also for the benefit of the widow and child in the sum of $10,000.
There was a motion to make the complaint more specific and a demurrer to the complaint, both of which were overruled. The answer denied the material allegations of the complaint except as to the representative capacity of the plaintiff. The facts on the issue of negligence are the same as those developed by the evidence in the case of S. Heinemann v. Pattie Barfield, and the instructions are the same except that- in the instant case the court authorized the jury, in case they found for the plaintiff, to return a verdict in separate amounts for the benefit of the estate of the deceased, E. H. Barfield, and also for the benefit of his widow and next of kin. The jury returned a verdict for the benefit of the estate in the sum of $2,000 and for the benefit of the widow and next of kin in the sum of $3,000, and from a judgment rendered according to the verdict is this appeal.
The ruling of the court was correct in overruling the motion to make the complaint more specific and the demurrer to the complaint. The complaint states a cause of action, as was held in the case of S. Heinemann v. Pattie Barfield. The facts on the issue of negligence and the instructions to the jury on that issue were the same as those in the ease of Heinemann v. Pattie Barfield, and this case is ruled by that on the issue of negligence.
The judgment in favor of the appellee for the benefit of the estate of R. H. Barfield is right and should be affirmed for the further reason, that there was testimony from which the jury might have found that the sale was made to R. H. Barfield, and, such being the case, his representative for the benefit of the estate would be entitled under the pleadings and proof to a judgment based upon the doctrine of implied warranty.
In 11 R. C. L. 1119 it is said: “In an ordinary sale of goods the rule of caveat emptor applied, unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article may De so serious and may prove so disastrous to the health and life of the consumer that'public safety demands * * # that there should be an implied warranty on the part (of the vendor, that the article sold is sound and fit for the use for which it was purchased.” This doctrine was approved in Nelson v. Armour Packing Co., 76 Ark. 352, 355, where Judge Battle, speaking for the court, said: “In the sale of provisions by one dealer to another in the course of general commercial transactions the maxim caveat emptor applies, and there is no implied warranty or representation of quality or fitness; but when articles of human food are sold to the consumer for immediate use, there is an implied warranty or representation that they are sound and fit for food.” See also National Cotton Oil Co. v. Young, 74 Ark. 144, A. & E. Ann. Cas., vol. 4, 1123; Doyle v. Fuerst & Kraemer, 129 La. 838, 56 So. 906, 27 Am. & Eng. Ann. Cas. 1010; Elliott on Contracts, § 129; 15 Am. & Eng. Enc. of Law (2 ed.), 1238; 11 R. C. L. 1119; Mechem on Sales, § 1356; 35 Cyc. 407; Catani v. Swift & Co., L. R. A. (N. S.), 1917 B, 1272; Craft v. Parker Webb & Co., 21 L. R. A. 139. See also cases in note to McQuaid v. Ross, 22 L. R. A. 187, 195, and cases in note to Farrell v. Manhattan Market Co., 15 L. R. A. (N. S.), 884.
There is no reversible error in the record, and the judgment is therefore affirmed.
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Humphreys, J.
On the 18th day of April, 1917, the grand jury of Ouachita County returned an indictment against appellant, charging him with the crime of gaming, by unlawfully betting money on a game of chance, played with cards, commonly called pitch.
Appellant interposed the defense of (1) not guilty, and (2) former acquittal.
The cause was submitted to the jury upon the indictment, the pleas of the appellant, the evidence adduced and instructions of the court. The jury found “the defendant guilty, and assessed his punishment at a fine of $10, and a judgment was rendered in accordance with the verdict, from which an appeal has been properly prosecuted to this court.
The only insistence of appellant is that the court erred in not sustaining his plea of former acquittal as a bar to the prosecution on the indictment.
In support of the plea of former acquittal, appellant read in evidence the affidavit of A. W. Ellis, filed before the mayor of the city of Camden, Arkansas, on the 11th day of April, 1917, charging that appellant, with others, “on the 9th day of April, 1917, and at divers times prior thereto, bet money on a game of hazard and skill called pitch;” the warrant issued by the mayor of the city of Camden on the same day for the arrest of appellant and the other parties named in said affidavit; and the record of the mayor’s court which is as follows: “City of Camden,
vs.
Henri Hirsch, Tom Ingram, Charlie Beard, Dick Hodges,
C. N. Martin, J. A. Sales, P. A. Lawrence, Marvin
Smith, W. R. Smith, Jr., and Chattie Gardenhire.
“On this day come Henri Hirsch, Tom Ingram, Charlie Beard, Dick Hodges, C. M. Martin, J. A. Sales, P. A. Lawrence, Marvin Smith, W. R. Smith, Jr., and Chattie Gardenhire, and announcing ready for trial, enter their plea of not guilty to the charge filed against them, whereupon this cause is submitted to the court upon the testimony of witnesses, and the court, after hearing the evidence, finds that the defendant, Charlie Beard, is guilty as charged in the affidavit of betting money on a game of hazard and skill called pitch, and the court finds, from the evidence, each of the other defendants not guilty, and they are hereby released and discharged.
“It is, therefore, considered, ordered and adjudged by the court that the city of Camden, Ark., have and recover of and from the defendant, Charlie Beard, the sum of ten dollars as fine for said offense and the further sum of $4.50 as cost of this prosecution.
“Witness my hand as such mayor of the city of Camden, Ark., on this 11th day of April, 1917.
‘ ‘ Geo. R. Gordon, Mayor of Camden, Ark. ’ ’
Unless otherwise provided by statute, convictions in a mayor’s court for misdemeanors can not be pleaded as a bar to a prosecution for the same offense in other courts. 8 R. C. L., page 150, sec. 137. This doctrine was approved in the case of Williams v. State, 63 Ark. 307, where it was said by Mr. Justice Hughes, in rendering the opinion for the court, that “prior to the act of March 30, 1891, a trial and conviction before a mayor’s court was no bar to a prosecution before a justice of the peace or before the circuit court for the same offense.” The act referred to was Act 59, Acts 1891, at page 97. It was insisted by appellant Williams in that case that a conviction in the mayor’s court for carrying a pistol as a weapon was a bar to a subsequent prosecution for the same offense in the circuit court. The act only provided that a conviction in a mayor’s court for a misdemeanor should be a bar to a subsequent prosecution for the same offense before a justice of the peace. It did not provide that a -onviction for a misdemeanor should bar a prosecution for the same offense in the circuit court. In other words, the court construed the statute literally. This act was subsequently amended so as to make a conviction in a mayor’s court for a misdemeanor a bar to a subsequent prosecution for the same offense in a circuit court as well as before a justice of the peace, provided the penalty imposed was at least the minimum penalty prescribed by the State laws for the same offense or act. Kirby’s Digest, section 2514. Neither the original nor amended act provided that an acquittal in a mayor’s court for a misdemeanor should operate as a bar to a subsequent prosecution for the same offense in either the circuit court or before a justice of the peace. Therefore, following the language' of the statute, it is only convictions in the mayor’s court, and not acquittals, that will, bar a subsequent prosecution for the same offense in circuit courts or before a justice of the peace, if the penalty imposed in the mayor’s court is at least the minimum penalty prescribed by State laws for the same offense or act. This court, as above stated, is committed to a strict construction of the statute in question.
Under the undisputed facts in the case, the court should have excluded-the plea of former acquittal as a bar to the prosecution on the indictment; so the submission of that question to the jury was favorable to appellant and did not in any wise prejudice his rights. The judgment is affirmed.
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Smith, J.
William and Marguerite Baum brought this suit to recover from appellant Ingraham their undivided interest in lots 5 and 6, block 3, Griffith & Nix Addition to Fort Smith, Arkansas. The lots were owned by their father at the time of his death, and he- was survived by his wife and three children. The third child, Mary Baum, died without issue, and the plaintiffs claimed a part of this share also as heir at law of their deceased sister. The complaint contained a prayer for the restoration of the possession of the land and for an accounting as to rents.
Ingraham admitted having possession of the lots since August 11, 1909, and alleged that he acquired the right to this possession at that time by virtue of a sale made to him under an order of the probate court of Sebastian County, which sale had been duly approved and confirmed.
After her husband’s death, Mrs. Baum married one Turner McGilberry, and removed with her children to his home in Oklahoma, where they have since resided. McGilberry became the guardian of the children in Oklahoma, and in 1909 appointed one T. N. Beed as his agent to procure an order of the probate court for the sale of the lots above described. This sale was attempted to be had under the provisions of section 3813, Kirby’s Digest, and the court directed the agent to sell the land privately. The land was sold privately without appraisement or other compliance with the general statutes regulating the sale of real estate owned by a resident minor, but the sale was reported to and approved by the court, and a deed was executed. The court below held the sale void, and referred the question of the rents and betterments to a master, whose report was excepted to by both parties, and the court made a finding on this report, from which both parties have appealed.
At the time of the institution of the proceeding in the probate court to procure the order of sale, Mary Baum, the oldest child, was a minor, and the order of sale included her interest as well as that of the younger children, but, at the time of the execution of the deed, Mary Baum, had become of age, and she personally joined in the execution of the deed, together with her mother, who conveyed her dower interest.' Mary Baum’s interest was described in the deed as being two-ninths, and there was a prayer in the answer and cross-complaint that the deed be reformed in this respect and made to cover the three-ninths, or one-third interest which Mary Baum individually owned, subject to the dower interest of her mother. This relief was granted, and the deed was reformed in accordance with the intention of the grantor, as found by the court, to convey her entire interest in the land. The cross appeal questions this action also.
At the April, 1906, term of the probate court, Mc-Gilberry, as guardian, procured an order of the court for the sale of the lots, and offered them for sale pursuant to this order, but the sale then made was not approved for the reason that the bidder did not offer to pay three-fourths of the appraised value. The order under which the sale was finally made was procured by Reed on August 5,1909, a day of the July term, 1909. This order recited that a sale of the lots was necessary for the support and education of the minors, and that the property could be sold to better advantage at private sale. A private sale without appraisement or publication was made and approved by the court, and the deed mentioned above was executed by Reed pursuant to this authority.
Section 3813, Kirby’s Digest, reads as follows:
“When a nonresident minor owns real estate in this State, and has a guardian in the State or Territory in which, he resides, the court of probate in the proper county-may authorize such guardian, either in person or by his agent acting under power of attorney, to sell such real estate and receive the proceeds of such sale. Provided, before any order shall be made for the payment of money to a nonresident guardian, or for the sale of the property of his ward by him, he shall produce satisfactory evidence to the court that he has given bond and security as guardian, in the State in which he and his ward reside, in at least double the amount of the sum to be paid to him, or in double the amount of the appraised value of the property to be sold; and the proof shall consist of a copy of the record setting forth his appointment as guardian, and also a copy of his bond executed as such, duly authenticated. ’ ’
The section quoted was section 37 of Act. No. 7i8 of the Acts of 1873, p. 185, which was entitled “An Act Defining the Powers and Regulating the Duties of Guardians, Curators, and Wards.” Section 27 of the same act authorized the leasing or sale or mortgaging of a minor’s lands for his education. This is now section 3794 of Kirby’s Digest. Section 28 of the Act of 1873 provides that when the lands are sold under the provisions of Section 27 “such sale shall be advertised and conducted in the same maimer as now provided by law for advertising and for conducting sales of real estate of deceased persons made by executors and administrators for the payment of debts.” This is now section 3795 of Kirby’s Digest.
It is true that section 37 of the Act of 1873 (section 3813 of Kirby’s Digest) does not expressly prescribe how the sales shall be conducted which are there authorized. But the act should be construed as a whole. The Legislature had at first dealt with the estates of resident minors, and had provided how such property might be sold. The Legislature found it wise to prescribe terms under which that property might be sold, to protect the infant’s interest. The whole subject was under the control of the ‘Legislature, which, recognized that there would be nonresident minors owning property in .this State, whose lands should also be sold, and provision for that contingency was made in section 37. The Legislature did not there re-enact or re-state the terms under which such a sale might be conducted, but nothing appears in the act to indicate that the Legislature intended to dispense with the requirements in the one case that were thought wise in the other. The same considerations of public policy were alike involved. In addition, a proviso in section 37 (3813 Kirby’s Digest) requires that before any order of sale shall be made for the payment of money to a nonresident guardian, or for the sale of the property of his ward by him, he shall produce satisfactory evidence that he has given bond *' * * in double the amount of the appraised value of the property to be sold. The appraisal of the property is one of the requirements for the sale of a resident minor’s property, and is not, ordinarily, a thing that would be required in the case of a private sale.
It is also insisted that a sale under section 3813 is not a probate sale within the meaning of section 3793, Kirby’s Digest, which provides that all probate sales of real estate made pursuant to proceedings not in substantial compliance with the statute shall be voidable. This can not be true, as the sale can only be made in any event after an order to that effect has been made by the probate court. The case of Landreth v. Henson, 116 Ark. 361, is authority for holding that sales made under section 3813, Kirby’s Digest, are subject to the provisions of section 3793.
We think the testimony fully warranted the court in reforming the deed from Mary Baum. Her deed recites that she conveys all her interest, and it is apparent that a mutual mistake was made in stating the fractional part of the whole which she owned.
The testimony is somewhat uncertain and conflicting on the question of betterments. Much of this testimony related to the enhanced value of the building material contained in the houses which Baum built on the lots, and to the per cent, of depreciation due to its age. It would -serve no useful purpose to discuss this testimony in detail, and, as it does not appear that the finding of the chancellor in this respect is clearly against the preponderance of the evidence, we affirm his finding as to values. .
The complaint contained a prayer for the partition of the land, and this was ordered, subject to the widow’s claim of .dower and the lien for. betterments. This was a proper order to make, as the court had. power to grant full relief.
• Decree-affirmed. -
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Hart, J.,
(after stating the facts). In this case the ¡insured died while a member in good standing in a fra ternal benefit society, and the company admitted liability on the benefit certificate and was ready to pay the beneficiary the amount thereof. The plaintiff in an action for tort recovered judgment against the beneficiary and sued out a writ of garnishment against the company and had it served before the money was paid by the company to-the beneficiary. The circuit court was of the opinion that the fund in the hands of the company was subject to garnishment under the laws of this State regulating garnishment proceedings for the amount of the judgment against the beneficiary. The correctness of the ruling of the circuit court depends upon the validity of an act of the Legislature passed in 1917, pertaining to the regulation and incorporation of fraternal benefit associations. Acts of Arkansas, 1917, vol. 2, p. 2087. Sections 1 and 21 are involved in this appeal. Section 1 reads as follows:
“Any corporation, society, order or voluntary association, without capital stock, organized and carried on solely for the mutual benefit of its members and their beneficiaries, and not for profit, and having a lodge system with ritualistic form of work and representative form of government, and which shall make provision for the payment of benefits in accordance with section 5 hereof, is hereby declared to be a fraternal benefit society. ’ ’
Section 21 is as follows:
“No money or other benefit, charity or relief or aid to be paid, provided or rendered by any such society shall be liable to attachment, garnishment or other process, or be seized, taken, appropriated or applied by any legal or equitable process or operation of law to pay any debt or liability of a member or beneficiary, or any other person who may have a right thereunder, either before or after payment.”
It may be stated at the outset that section 21 does not relate to the absolute exemption of personal property allowed a resident of this State as exempt from certain debts and liabilities under sections 1 and 2 of article 9 of our Constitution. The reason is, beneficiaries in insurance policies, as well as other persons, are obligated to pay judgments against them in favor of third persons and exemptions from execution and other process of the court are fixed by the sections of the Constitution above referred to. The statute in question was not enacted for the purpose of allowing beneficiaries exemptions which they are not entitled to under the Constitution and laws of this State, but the act was passed for the purpose of exempting these funds from the operation of our general statutes regulating the issuance of garnishments and proceedings thereunder. It will be observed that the language of section 21 is very broad and comprehensive. The section provides, in effect, that no money provided by the society shall be liable to attachment, garnishment, or other process, or be seized or applied by any legal or equitable process to pay any debt or liability of a member or beneficiary. The statute was evidently passed for the benefit of the society and as well for the members and beneficiaries. By the plain terms of the statute the fund was not subject to garnishment provided the Supreme Tribe of Ben Hur was such a society as is named in section 1 of the act.
It is earnestly insisted by counsel for the plaintiff that there is nothing in the record which brings the society in question here within the provisions of said section 1. In the first place, it may be stated that counsel for the respective parties to this lawsuit stipulated that the garnishee, Supreme Tribe of Ben Hur, is a fraternal beneficial society or organization organized and doing business under and by virtue of the laws of the State of Indiana. One of the articles of its constitution provides that the association shall be operated and carried on for the sole benefit of its members and their beneficiaries and not for profit. It has a constitution and by-laws similar to those adopted by mutual benefit societies. A supreme body and local lodges are provided for. Officers are elected by the members of the society and their duties are provided. The constitution provides that the objects of the order shall be to improve the members thereof socially, morally and intellectually; to aid the members in business, or in securing employment, and to demonstrate the highest form of brotherly love; to care for the sick and bury the dead and extend aid and comfort to the members of the order and to secure in general for the members such advantages .as may be designated by the rules and regulations of the order. The constitution also provides that the association shall have a lodge system and a ritualistic form of work and a representative form of government. It also provides for assessments upon the members for the purpose of establishing and maintaining a fund from which the beneficiaries may be paid. It provides that the members shall be bound by the laws of the supreme governing body and that all the beneficial certificates issued by the Supreme Tribe of Ben Hur shall at all times be subject to such changes, alterations, amendments and modifications as to terms, monthly payments, assessments and conditions of payment as the laws, rules and regulations made from time to time provide and that all the laws, rules and regulations of the order shall become a part of the benefit certificates. These and numerous other provisions of the constitution and rules of the order indicate that the Supreme Tribe of Ben Hur is not a stock corporation, but that it is one without capital stock and is carried on solely for the mutual benefit of its members and beneficiaries.
It is true that there is no direct evidence in the record that it is not a corporation organized for profit, for this question does not seem to have been raised in the trial court. The constitution and rules of the order, however, are in the record. It would unduly extend the opinion to set them out in it, but as above stated a careful consideration of the constitution and rules of the order, together with the excerpts from them stated above, clearly bring the Supreme Tribe of Ben Hur within the provisions of section 1 of the act in question.
It follows that the circuit court erred in holding that the fund in the hands of the garnishee was liable to garnishment under our statute regulating garnishment pro ceedings. The judgment will therefore he reversed with directions to the circuit court to dismiss the garnishment proceedings and to direct the Supreme Tribe of Ben Hiir to pay the fund to the defendant as the beneficiary named in the benefit certificate.
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Smith, J.
It is claimed by the appellant surety company that Grover Baker was employed as agent of the Illinois Central Railway Company, at Buckner, Illinois, and as such agent defaulted in the sum of $808.73, and that, prior to such defalcation, the appellant surety company had executed its bond to the railway company, conditioned that it would protect the railway company against loss growing out of the wrongful conduct of the said Grover Baker in the sum of $500. In consideration of this obligation to indemnify the railway company, C. W. Baker, an older brother of Grover Baker, living at Elm Springs, Arkansas, executed a bond to the guaranty company, by which he agreed to indemnify it against any loss it might sustain by reason of its bond to the railway' company. The surety company paid the sum named in its indemnifying bond, and brought this suit to recover that payment, less the sum of $95.01, which it had collected on account of said alleged shortage. The bond executed by appellee to appellant contained the following stipulation: “I, C. W. Baker, of Elm Springs, Arkansas, hereby agree that I will protect and immediately indemnify the said U. S. F. & G. Company against any and all loss, damage and expense it may sustain or become liable for in consequence of such bond or bonds, and any renewal or extension thereof, hereby admitting that the voucher or other proper evidence showing payment by said guaranty company of any such loss, damage or expense, shall be conclusive evidence (except for fraud) against me and my estate of the fact and amount of my liability hereunder to said guaranty company. (Signed) C. W. Baker. ”
The answer contained a general denial of all of the allegations of the complaint.
It is undisputed that the surety company paid the railway company the sum of $500 on July 1, 1916, and took its receipt therefor, but the testimony is not free from conflicts as to what the amount of the shortage really was, this conflict being made to appear in statements as to its amount, made by representatives of the railway company and the surety company.
The deposition of a traveling auditor of the railway company was taken, and he submitted a statement showing the date and amount -and nature of each item of the alleged shortage, and this testimony appears to be uncontradicted except by the statements above referred to. It is unquestionably true that there was an increase in the shortage claimed, but it is explained by the auditor that this' discrepancy arises out of the failure of the defaulting agent to enter all of his collections on his books.
When the agent disappeared, he left a note addres'sed to his wife, in which he stated that he owned an interest in some land near Rogers, Arkansas, which he “was-willing for the guaranty company to have to cover the loss.” The railway company brought suit in Benton County and attached Grover Baker’s interest in the land, and, as a result of this suit, the land was sold .and the sum of $173.67 remained after paying the costs, and this sum was paid on January 24, .1917, to the railway company for the account of Grover Baker.
In connection with this suit on the part of the railway company, the court gave an instruction numbered '7, which declared the law to be “that, if the plaintiff company had knowledge that the railroad company had brought suit and attached the land and was attempting to collect and did collect that amount of money out of the land, then the plaintiff company would be bound by that fact, and the defendant would be entitled to a credit for his portion of what the land sold for; if you find that plaintiff company had no knowledge and did not acquiesce in the suit brought by the railroad company against Grover Baker’s land, then you will find for the plaintiff company in such amount as you may feel warranted from the proof. The question of whether or not plaintiff company had knowledge and information and whether or not it acquiesced in that transaction are questions of fact for the jury to determine from all the facts and circumstances in evidence before you.”
This instruction was erroneous, and should not have been given. According tcthe contention of the appellant, the shortage of the agent exceeded the payment made by appellant, and the sum recovered in the suit, and the railway company had the right to sue for the excess of the shortage over the amount of the bond, and, if there was such excess, it could make no difference that the surety company knew of the suit by the railway company.
In the case of Guaranty Company of North America v. Pitts, 30 So. 758, the Supreme Court of Mississippi upheld as valid a contract containing substantially the stipulation set out above in the bond from appellee to appellant, and, in the case of Illinois Surety Company v. McGuire, 145 N. W. 768, the Supreme'Court of Wisconsin held that, “A provision in an indemnity bond that the vouchers and other proper evidence showing loss and payment by the company should be conclusive (except for fraud) of the fact and amount of the indemnitor’s liability, was valid. ’ ’
The Federal Court of Appeals for the Second Circuit, in the case of American Bonding Company v. Alcatras Construction Co., 202 Fed. 483, upheld a similar provision.
The Supreme Court of North Dakota, in the case of Fidelity & Deposit Co. of Maryland v. Nordmarken, 155 N. W. 669, held that “a stipulation between a guaranty insurance company and the guaranteed employee that a voucher or other evidence of payment by the company to the employer shall be conclusive evidence against the employee as to the fact and extent of his liability to the company, is void, as being against public policy, insofar as it makes such voucher conclusive evidence.” But the contract of indemnity in that case contained no exception in the case of fraud, as did the contracts in the three first cited cases and as the instant case does.
Wé think the stipulation was a lawful one which the parties had the right to make, and the jury should have been told that the settlement between-tbe surety company and tbe railway company should be taken as tbe basis of their verdict, except in so far as, if at all, it bad been impeached for fraud.
Of course, the sum recovered by tbe sale of Grover Baker’s land can not be ignored, but tbe amount of that recovery becomes important in tbe event only that it, together with other credits, exceeds tbe shortage.
Judgment reversed, and cause remanded for a new trial.
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Mr. Justice Compton
delivered the opinion of the Court.
The parties to the action in this case, made their contract in writing, which is as follows :
“Agreement between John T. Jones and Henry G. Jackson, “ witnesseth; that said Jackson agrees to take of said Jones “ fifteen hundred bushels of corn, at forty cents per bushel, and “ ten thousand pounds of fodder at seventy-five cents per hun- “ dred, which the said Jones agrees to deliver to the said Jack- “ son on his farm, provided the same shall be made and “ gathered on the said farm after supplying what may be needed “ by the said Jones during the year 1854. The delivery to be “ made and the money to be paid on the first day of January, “ 1855. Witness our hands this 20th January, 1854.
JOHN T. JONES,
H..G.'JACKSON.”
The corn being in cribs on the plantation which Jones had sold to Jackson, Jackson’s agent, on the 1st January, 1855, went upon the premises — being the time and place fixed by the contract — and was ready to receive the corn and pay for it. Jones, however, was not present and did not deliver the corn, having told the agent a short time before then, that he would not deliver it. On the 9th January, 1855, Jackson topic possession of the premises, and finding the corn then unmeasured in the cribs, and learning that Jones had refused to deliver it, commenced using and consumed 1,179 bushels of the corn without his consent. Jones also used a portion of the corn after the 1st January, 1855; but how much he consumed, or how much was in the cribs on the 1st January, 1855, does not distinctly appear.
Under these circumstances Jones sued Jackson upon an implied assumpsit, the declaration containing none other than the common counts for goods sold and delivered; and the case being tried before a jury on the plea of non-assumpsit, Jones recovered judgment for the market value of the corn consumed by Jackson, which was'seventy-five cents per bushel.
At the trial several instructions were given the jur}, at the request of the plaintiff and against the objection of the defendant, all which may be reduced to two propositions:
1st. That if, after the plaintiff had supplied himself for the year 1854, there was not remaining on the 1st January, 1855, as much as fifteen hundred bushels of the corn which had been raised and gathered on the plaintiff’s farm, the plaintiff was not bound, under the contract, to deliver a less quantity, and if the defendant appropriated the corn to his own use without the consent of the plaintiff, he was liable for the value of the corn! at the time it was so appropriated, notwithstanding the special contract; and 2nd: If the plaintiff refused to deliver the corn, the remedy of the defendant was a suit for breach of the special contract, but he had no right to take the corn and appropriate it to his own use, and if he did so, he was liable to the plaintiff for the value of the corn at the time it was so taken and appropriated notwithstanding such special contract.
In the first of these propositions there is no error. The contract was to sell corn at a future time, and the sale was dependent upon a contingency. The contract was, therefore,not only executory, but was also conditional. If, on the 1st January, 1855, there were not fifteen hundred bushels of corn, grown and gathered on the farm of the plaintiff, after supplying himself for the year 1854, then the contract was at an end, and ceased to be obligatory upon either party. This construction is well sustained by the authorities both English and American. Boyd vs. Siffkin, 2 Camp. 326; Johnson vs. McDonald, 9 Mees. & Wel. 601 marg.; Russell vs. Nicoll, 3 Wend. 112; Shields vs. Pettee, 2 Sandf. 262.
The contract was also entire; it was for the sale of a specified quantity of corn, expressed in language plain and unambiguous. The purchaser not being bound to receive, the seller was not bound to deliver less than the whole quantity, upon the principle that the obligation was reciprocal. In Russell vs. Nicoll, 3 Wend. 112 supra, the contract was for the sale of five hundred bales of cotton, to be delivered on arrival at New York from. New Orleans, at any time between the 9th of February, and the 1st day of June thereafter. Only eleven bales arrived within the specified time, and the defendants refused to deliver them because the whole five hundred bales were not received. The court in that case said: “ The contract was for five hun- “ dred bales; it was entire; there was no obligation on the part “ of the plaintiffs to receive a less quantity than the whole, and “ consequently none on the part of the defendants to deliver “ less than the whole. The obligation to deliver and receive “ must be reciprocal.”
So in Batre vs. Simpson, 4 Ala. 305, the contract was for the purchase of ninety bales of cotton, part at one price and part at another; the cotton was destroyed by fire before it was all weighed, and the court held that the contract was entire; that the vendor was not entitled to recover the price of any part of it, and that the willingness of the purchaser to have taken less or more than the vendor agreed to sell him, could not change the character of the contract. See also Niblett vs. Herring, 4 Jones’ (N. C.) Law Rep. 262.
There is error in the second proposition. Although the title to the corn did not pass, because the contract was executory, and its fulfilment dependent upon a contingency, and although the taking of the corn by the defendant was a tortious act for which he was liable in damages to the full value of the corn, at the time of its conversion, had the plaintiff chosen to proceed .against him in trespass or trover; still, the plaintiff could not waive the wrongful act of the defendant, and recover, upon an implied assumpsit, the market price of the corn, while the special contract between the parties was subsisting. It was at his option to treat the defendant as a -wrong doer, or as a purchaser. If he chose to treat him as having purchased the corn, he was bound to resort to the special contract as containing the terms of the purchase, and this upon the obviously just principle, that the law never accommodates a party with an implied contract when he has made a specific one as to the same subject matter. In Ferguson vs. Carrington, 17 Eng. Com. Law R. 36, the vendors had sold their goods upon credit, the purchaser fraudulently intending at the time of the contract not to pay for them. In assumpsit by the vendors for goods sold and delivered brought before the expiration of the credit, it was held that the action was not maintainable, though the vendors might have treated the contract as a nullity, and have brought trover immediately to recover the value of the goods. In this case it was said, per Bailey, J., “ The plaintiffs have affirmed the contract by bringing this action. The contract proved was a sale on credit, and where there is an express contract the law will not imply one;” and per Parke, J.: “As long as the contract existed, the plaintiffs were bound to sue on that contract. They might have treated the contract as void on the ground of fraud, and brought trover. By bringing this action they affirm the contract made between them and the defendant.” And in Cutler vs. Powell, 6 T. R. 324, it was remarked by Lord Cii. J., Kenyon: “ That where the parties have come to an express contract none can be implied, has prevailed so long as to be reduced to an axiom in the law.” Indeed upon principle and by authority, it is the settled law, that where there is a special contract, the Jaw implies none, and so long as the special contract is subsisting between the parties, it must control, and the remedy is, in general,upon that, and not upon the common counts in assump-sit. Touissant vs. Martinnant, 2 T. R. 104; Selway vs. Fogg, 5 Mees, & Wels. 83; Grimman vs. Legge, 15 Eng. Com. L. R. 164; Whiting vs. Sullivan, 7 Mass. 107; Galloway vs. Holmes, 1 Dovg. (Mich.) R. 330; Lodue vs. Seymour, 24 Wend. 59.
This rule, however, so far as it relates to the form of the remedy, must be understood as subject to certain qualifications. Thus: if the agreement has been completely performed by the one party, and there is nothing special in the contract in relation to the time or manner of the payment, or the credit, if any, has expired, there is then a duty upon the other party to pay the stipulated price, for which a general indebitatus assumpsit will lie. Bull. N. P. 139. Or, if the plaintiff is «ntitled to recover, but cannot sue on the special contract, for the reason that he cannot aver and prove a full compliance with its terms, he will be permitted to recover on the common counts, in assumpsit, as in Jewell vs. Schroeppel, 4 Cowen 564. But this only goes to the form of the remedy. It does not dispense with the necessity of producing the special contract. That must be produced, in order that it may appear whether it has been performed by the plaintiff, and whether the stipulated time and mode of payment would warrant a recovery without declaring snecially on the contract; or, whether it contained those terms, the performance of which the plaintiff, though entitled to recover, could not aver and prove. In all such cases, the contract is not disregarded; it still governs. The plaintiff may sue upon the common counts, but he must make out his case under the special contract. Lodue vs. Seymour, 24 Wendell 59, supra.
Whether the special contract in the case we are considering, was at an end, or still subsisted at the time the defendant appropriated the plaintiff's corn, depended, as we have seen, upon the quantity of corn remaining on the 1st January, 1855, after the plaintiff had supplied himself for the year 1854. As to this fact, the testimony in the record is conflicting, but inasmuch as the case must go back for a new trial, we do not deem it proper to comment upon the evidence. It was important, however, that the jury should have passed upon this question of fact, and yet the charge of the court, as indicated in the second proposition above discussed, was such as to enable them to find a verdict against the defendant, as they did do, for the market price of the corn, without doing so. If there were fifteen hundred bushels of corn remaining on the 1st January, 1855, then the special contract was subsisting, and the plaintiff was not entitled to recover more than forty cents per bushel, that being the stipulated price; but if no*-, then the contract was ended, and the .plaintiff was entitled to recover the market value of the corn.
Let the judgment be reversed and the cause remanded for further proceedings.
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Hon. Harris Flanagin, Special Judge,
delivered the opinion of the Court.
This action was brought by English against Fenno, before a justice of the peace on the 12th day of January 1858, on the following account:
“ JOSEPH FENNO, DR.
To E. H. English,
1857. Defending you in case of State Bank vs. Carroll, Fenno, Danley and others, being suit on Carroll’s bond as Bank attorney, on which you were security — Pulaski Circuit Court.. -$100 00
Judgment was rendered for English, and Fenno appealed. A trial was had in the Circuit Court, which resulted in a verdict and judgment for English.
At the trial, the deposition of Carroll was read, in which he deposed, that he was principal in the case of State use State Bank vs. Carroll, Fenno and others, and the suit was on his official bond. Witness employed three attorneys to defend the case, which they did. Fenno afterwards told witness that he and Danley had employed English to defend the suit for them, and requested witness to pay him, which he declined on the ground that he had employed sufficient counsel. The defendants were successfully defended.
George A. Gallagher testified that he, James M. Curran, and Ebenezer Cummins were employed to defend the suit, by Carroll and some of his securities. They did not appear for Fenno. English filed a plea for him at the July term, A. D., 1854. English became Chief Justice of the Supreme Court in January, 1855, and did not appear in the case afterwards. That English gave notice, in the papers of Little Rock, (where Fenno lived,) when he went upon the bench, that his unfinished business -would be turned over to Samuel W. Williams, Esq., who would attend to it, under his advice and direction. Williams did attend to the case until it was decided in 1857.
This testimony Fenno moved to exclude, first, because it was irrelevant, and second, because the testimony showed the liability to English had not accrued within three years before the commencement of the suit.
The motion was overruled, and Fenno excepted.
Witness stated further, that it was not customary for attorneys to sue their clients for their fees until the case, i$i which they accrued, was decided.
Fenno asked the court to instruct the jury as follows:
1st. That if the jury believe from the evidence, that the defendant employed the plaintiff to defend the suit, mentioned by the witnesses, against him and others, and the plaintiff rendered some services, but ceased practicing as an attorney and did not appear in the case within three years belore the commencement of this suit, his demand is barred, and they should find for the defendant.
2. That if the plaintiff was defendant’s attorney, defending the case mentioned, and ceased to practice as an attorney, he cannot maintain an action for his fee, if more than three years elapsed between the time he ceased to practice and the commencement of this suit, though he employed another attorney to defend the suit to the end.
3. In no event can the plaintiff recover more than is due for services actually rendered before he ceased practicing as an attorney, and terminated the relation of attorney and client between him and the defendant.
In the case of Smith et al. vs. Hill et al., 8 English 173, this court held that a contract for the services of cine member of a legal firm is broken by the neglect of the particular member to perform the services, but the damages, in case the client’s interest was attended to with due professional skill, would be nominal; and in case the client should decline the professional services of the other members, he cannot do so without a tender of compensation for services already rendered. In this case, the partner, who was to perform the services, was dead. The reasoning would apply in the present case, where the attorney had become judge of the Supreme Court, the duties of which were inconsistent with his attention to a considerable practice in the circuit and inferior courts.
Any construction, which would oblige an attorney to give his personal services as attorney, at all events, would be fraught ■with evils of such magnitude as to prevent its adoption, unless controlled by authorities:
1st. No person could accept the position of Supreme or Circuit Judge, if he was engaged as counsel in any cases without subjecting himself to a suit for damages.
2d. When an attorney is engaged in different circuits, and the times of holding the courts are changed, so as to cause the courts to conflict, he would be liable to damages.
3d. In case of sickness which prevented his attendance, an attorney would render himself liable to damages.
In each of these cases his liability (upon the supposed construction of the contract) would accrue, notwithstanding he may have employed and paid a substitute more able than himself, and notwithstanding his client may have succeeded to the extent of his wishes.
Under the decision above referred to, we hold that Fenno could not avail himself of the services of the substitute until he succeeded in the cause, and then allege that his contract was for the services of English only; and further, if Fenno was dissatisfied with the services under the advise and direction of English, he should have paid for the services already rendered, and have made known his dissatisfaction.
The testimony of Gallagher, under this view of the case, was competent to support English’s account, as well as to avoid the bar of the statute of limitations, and the court correctly refused to exclude the testimony.
The first instruction was wrong, for the reason that English could recover for the services of Williams, rendered on English’s account and at English’s expense, without objection on the part of Fenno.
The second and third instructions are objectionable for the same reason.
Let the judgment be affirmed.
Mr. Chief Justice English did not sit iri this case.
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Mr. Chief Justice English
delivered the opinion of the Court.
This case involves conflicting entries of swamp lands. The bill was filed by Deloach to establish the validity of the entry of Frazier, under whom he claims by assignment, and to cancel the entry of Brownfield and Watkins.
On the 7th of September, 1853, Frazier applied to David W. Carroll, as land agent for the Pine Bluff district, to purchase the lands in controversy, and others, with scrip issued to him for levee work, and obtained the certificate of Carroll that he had so applied.
On the 25th of December, 1833, he obtained a certificate from W. C. Butts, secretary of the board of swamp land commissioners, stating that he had, on that day, purchased and paid for the lands. Under these certificates, Deloach, the complainant in the bill, claims title to the lands, by assignment from Frazier.
On the 13th of June, 1855, Brownfield and Watkins purchased the lands of I. C. Mills, land agent of the Pine Bluff district, and obtained a certificate of purchase. The land agent had offered the lands at public sale on the 31st of January, 1854, and they were not sold for want of bidders.
On the 26th of September, 1856, Brownfield and Watkins surrendered their certificate of entry to Mills, the land agent, and obtained a patent certificate in lieu thereof, under the provisions of the act of 20th January, 1855.
On the 13th Nov. 1856, they obtained the certificate of the auditor, that the lands had been patented to the State under the swamp land grant, and on the same day, the governor issued to them a patent therefor.
Upon these facts, and some others disclosed by the pleadings and evidence in the cause, which will be policed below, thé court refused the relief prayed by the complainant, and dismissed his bill for want of equity, and he appealed'
1. It is insisted in the bill that Frazier had a pre-emption right to the lands from the date of his levee contract.
Under the 4th and 5th sections of the act of 6th January, 1851, to provide for the reclaiming of the swamp lands, a levee contractor had his election to take his pay for work done by him, in the lands reclaimed, or in scrip, which he might transfer by assignment, or which he could locate upon any of the unselected swamp lands. McGehee vs. Mathis as sheriff etc., 21 Ark. 88.
The 4th section of the set of 11th January, 1851, provides that any person owning lands on the bank of anj river in any swamp and overflowed land district, shall have the preference of taking the contract to levy such lands, at the lowest bid, and that each person so contracting shall have the preference to take in pay for executing his contract, any swamp or overflowed lands lying in the rear, adjacent to his own lands.
The answer denies that Frazier was the owner of the front lands, or that the lands in controversy were in the rear of the levee made by him; and there was no proof to overturn the denial.
Moreover, by the terms of Frazier’s levee contract (bearing date 3d November, 1852,) he was to be paid for his work in land or scrip; and the bill alleges that he took scrip; with which he applied to Carroll to enter the lands in controversy. It follows that the claim to a pre-emption is not clearly made out.
2. It was agreed upon the hearing that Carroll did not receive from the auditor the maps and plats of the lands in the Pine Bluff district, under the act of 12th January, 1853, until the 12th day of October, 1853. He was not in office as land agent, and had no power to sell lands, or to receive applications for the purchase of lands, until his district was laid off by the commissioners, and the maps and plats of lands embraced there by furnished him by the auditor. Hempstead vs. The Auditor 16 Ark. 57. Same vs. Underhill’s heirs 20 Ark. 354.
It follows that the certificate issued to Frazier, by Carroll, on the 7th of September, 1853, stating that he had applied to purchase the lands in controversy with scrip, etc., was granted without any legal authority whatever, and was of no validity. It was as worthless as if it had,been issued by any other person than Carroll.
3. On the 12th of October, 1853, the authority of Carroll, as land agent, to receive applications for the purchase of swamp lands, and to sell such lands, commenced; and on the same day the power of the commissioners to sell lands within the Pine Bluff-district ceased. From thenceforward they had no legal authority whatever to sell any lands embraced in Carroll’s district. See Hempstead vs. Auditor and Hempstead vs. Underhill's heirs, ub. sup.
The alleged sale made by them to Frazier, of the lands in question, on the 25th December, 1853, and the certificate issued to him by the secretary of the board of commissioners, reciting a purchase of the lands by him, on that day, were, therefore, null and void.
If it be assumed to be true, as insisted for the appellant, that Frazier in fact purchased the lands from Carroll, on the 7th of September, 1853, and obtained a certificate of purchase, instead of the certificate that he had applied to purchase the lands, which is exhibited with the bill; and that he applied to the commissioners, on the 25th day of December, 1853, to ratify and confirm the sale so made by Carroll, and that they did undertake to ratify the sale, and in pursuance thereof, directed their secretary to issue to Frazier the certificate of purchase exhibited with the bill, this does not help the applicant’s title to the lands; because if the commissioners had, at that time, no powrnr to sell the lands themselves, they certainly had no power to confirm a void sale thereof made by Carroll.
4. But it is moreover insisted for the appellant, that Frazier’s purchase of the lands was ratified and confirmed by the eleventh section of a series of resolutions passed by the board of swamp land commissioners on the 6th of October, 1853, when they had the power to sell the lands, defining what they conceived to be their powers, duties etc., etc., which section is as follows :
“11th. And in order to prevent injustice and save private rights, and to secure, as far as they may, persons who have heretofore made application to said land agents to purchase such lands, this board will, whenever furnished with'competent evidence that any person has purchased any of such lands from any of said land agents, and paid them therefor, in scrip or otherwise (regarding the certificates of said agents or copies of their list of sales certified by them, as sufficient evidence,) and whenever the party who produces the evidence that the scrip or funds paid by him are in the hands of the auditor or treasurer as paid by him, consider such purchase and payment as an application to purchase the same lands and payment therefor made to them, as of the day when such proof is furnished, reserving all rights vested in or accrued to any other person or persons in the meantime; and will give certificates accordingly; and to that end, wall receive and consider as applications made to them, on the day when received, lists from said land agents of all such land heretofore, but not hereafter, purchased of them; so that in any event and whatever may be ultimately decided by the courts in regard to the questions involved, the rights of innocent purchasers will be protected, and ruinous litigation avoided.”
It may be remarked that this resolution had not, of itself, the effect to cure and make valid any void sale of lands made or attempted to be made by the land agents; nor is it to be inferred from the language of the resolution that the commissioners intended it to have such effect. They had power at the time the resolution was passed, to cell the swamp lands in the Pine Bluff district in the mode prescribed by law, as officers of the State, but they had no legislative power, and could not by mere resolution, if they had attempted it, confirm, and make valid, sales made by other persons without authority of law, nor could they by such resolution, extend their own power to make sales, beyond the time when the land agent became invested with power to sell the lands. The resolution must be regarded as a mere declaration of the course of action which the commissioners had determined to pursue, in relation to illegal sales made by the land agent, while they themselves continued to .have power to sell the same lands.
But the appellant failed to show that Frazier had purchased the lands from Carroll, and paid him for them, and that the scrip etc., paid for the lands had gone into the hands of the auditor or treasurer. On the contrary, he merely proved by the certificate of Carroll that Frazier had made application to purchase the lands with scrip, etc., hence it was not shown that Frazier belonged to the class of persons intended to be benefited by the resolution of the commissioners. Nor was there any allegation or proof that Frazier furnished the commissioners with any evidence that he had purchased the lands of Carroll and paid for them (if he had done so) whilst they had power to sell the lands or ratify the sale made by Carroll, or that he made any application to the commissioners to purchase the lands of them, or to confirm his purchase of Carroll, whilst their power of sale or ratification continued.
3. It is finally insisted for the appellant, that his title was cured and confirmed by the 1st section of the act of 20th January, 1855, which required all persons holding certificates of entry issued bj the swamp land commissioners etc., to surrender such certificates to the land agent of the proper district, and obtain patent certificates etc., in lieu thereof.
It may be remarked in relation to this act, that it does not, in any of its provisions, purport to be a curing statute — that is, to make sales valid which were illegal and void.
Nor is it shown that Frazier ever complied, or ever offered to comply with the requirement of the act, by surrendering, or offering to surrender, to the land agent of the proper district, the certificate obtained by him of the secretary of the board of commissioners, for the lands in question, and asking a patent certificate in lieu thereof.
If he had done so, and procured the patent certificate, it is probable that the land agent would not afterwards have sold the lands, as he did,-to the appellees.
After the certificate of the 25th December, 1853, was issued to Frazier, by the secretary of the swamp land commissioners, and after the land agent of the Pine Bluff district was legally authorized to sell the lands, he advertised them and oifered them at public sale, as required by law, and they were not sold for want of bidders. After that, and on the 13th of June, 1855, the appellees purchased the lands of the land agent, as above shown — during all which time Frazier appears to have contented himself with his void entry, and to have made no attempt to make another and a valid purchase of the land agent; nor was it shown that the appellees had any knowledge of his attempted purchase of the lands, at the time they entered them.
The appellant having failed to show that there is any superior equity in his claim to the lands, and it appearing that the appellees have the paramount legal title, the court below property dismissed the bill for want of equity, and the decree must be affirmed.
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On the 18th of February, 1851, Bertrand sued out of the office of the clerk of the Pulaski circuit court a writ of attachment against Mary E. B. Yiser, which was executed on the same day by the sheriff’s attaching three slaves, as Mrs. Viser’s property. Upon the 20th of the same month, Mrs. Yiser, by the name of Mary E. B. Baker, with Luther Chase and Absalom Fowler as her securities, to release the slaves so attached, and to regain their possession, tendered to the sheriff of Pulaski county her bond for five hundred dollars, conditioned according to the law contained in sec. 13, Ch. 17, of English's Dig., which was accepted by the sheriff, and the bond was returned with the writ of attachment, the attached property was restored to Mrs. Viser, and in place thereof the bond was substituted as a security to Bertrand. Bertrand’s suit was prosecuted against Mrs. Viser till the 9th of January, 1856, when he obtained judgment for five hundred and seventeen, 50-100 dollars, and for all costs expended in the suit. The judgment remaining unpaid, and the bend unsatisfied, Bertrand,upon the 22d of April, 1856> brought his action of debt against Fowler upon the bond, and upon the 13th of November, 1858, obtained judgment against Fowler for six hundred and fifty-seven, 80-100 dollars, and for costs, to which judgment Fowler in his life time brought error.
Fowler defended the suit by filing two pleas in bar, a plea of set-off, and that Mrs. Baker, the principal in the bond, was, at the time of its execution, a married woman.
The second plea was rightly quashed on demurrer; for whether the bond could, or could not, have been enforced against Mrs. Baker, it was a valid and legal cause of action against Fowler, as one of her securities, upon judgment being rendered in the case in which the bond was given, upon its non-payment, and the bond remaining undischarged. And though the judgment may have been erroneous against Mrs. Baker, and reversible for error, it was not subject to impeachment in the indirect way proposed by the plea.
To the plea of set-off, Bertrand replied nil debet, to which Fowler rejoined, and because this issue was thus made, and the jury were sworn only to find the truth of the breaches, Fowler’s executor contends that there is such error as must reverse the judgment. But the other replication of Bertrand to the plea of set-off met the whole case made by the set-off, and as Fowler rested upon his demurrer to that replication, there is nothing in the case to overcome'the presumption that Fowler did not introduce any testimony to support his set-off, upon the issue made upon Bertrand’s plea of nil debit thereto. For upon the face of the particulars of the set-off, it was subject to the plea of limitations, by which it was necessarily cut off, unless for the benefit of some exception to the statute. No such exception was pleaded, whence it must be inferred that Fowler was precluded from adducing any evidence that could have sustained his set-off, upon the issue mentioned. Stilhvell vs. Badgett, decided at the present term, and previous cases of this court therein cited. It is then immaterial how the jury -were sworn, so far as a consideration of their oath would involve its extent in connection with this issue.
It hasbee.n inferred from the foregoing, that the second replication of Bertrand to the set-off was that of the statute of limitations. But it pleaded that no cause of action accrued to Fowler upon his set-off within three years before the filing of the plea, for which Fowler demurred to it, assigning the replication to be bad, because it did not refer the non-accrual of a cause of action upon the set-off to three years before the commencement of the suit. The demurrer was overruled, Fowler rested upon his demurrer; and the action of the court upon the demurrer is the only other cause of error insisted upon by Fowler’s executor.
The demurrer should have been sustained. The precedents give the form of the plea in accordance with the demurrer, do not support the replication — 3 Gh. PI. 1159 — 1161, (1 lift, Am. Ed.) 2 Humphrey's Precedents 902-903- And see also Gale vs. Gopern 1 Ad. and Ellis 105; Hinckley vs. Waters 8 Walls 264; Ang. on Lim. Gh. 9 sec. 8.
In 2 Saund. PI. S? Ev. 886, is the following sentence: “ If the plaintiff rely upon the statute of limitations as a bar to the plea of set-off, he should reply specially that the causes of action did not accrue within six years next before the commencement of the suit,” and upon the next page may be read thus : “ If both the demands of the plaintiff and defendant accrued more than six years before the time of pleading, and the plaintiff issued process to prevent the statute of limitations affecting his demand, it will equally prevent the statute from barring the defendant’s set-off, although the other issued no process ; ” Evans vs. Prosser, 3 Term Rep. 188, decides the very point under consideration. 1 Tidd's Pr. 664; 1 Ch. Pig. 572, (litó Am. Ed.)
A set-off is the beginning of a cross action by the defendant, but when once sued, a defendant is not obliged to sue upon his demand against the plaintiff; he may rest upon it until the time comes to set it off against the plaintiff’s cause of action, and without its being subject to any other defence, than it would have been at the commencement of the suit, provided that it has not been paid between that time and the time when the plea is filed. The rights of the parties must be decided upon as they were at the time of the commencement of the suit.
For the error of the court in overruling the demurrer to the limitation pleaded to the eet-off, the judgment must be reversed.
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Mr. Chief Justice English
delivered the opinion of the court.
The defendants in error recovered a judgment by default* in the Desha Circuit Court, against the plaintiffs in error, for $25000 debt, and $1500 damages.
The counsel for the defendants admits that the recovery, upon the declaration, was excessive, offers to remit the excess, and asks an affirmance under the rule, &c.
But two objections are taken to the writ, which are founded in fact, as it appears in the transcript before us : 1st. that it has no seal, and 2d. that it was directed to Henry Smith, the sheriff, and was served and returned, as appears from the return endorsed, by Thomas McKallister, the coroner of the county.
1. It has been the practice of this court to reverse judgments by default in cases where the summons was without the official seal of the clerk, and such writs were treated as void. But in Mitchell vs. Conley, 13 Ark. 418, the court, upon a review of its previous decisions, held that writs were not void for such defects, but voidable, and that the court below possessed the power to amend them on application.
Here no application was made to amend, and the defect in the writ is cause of reversal.
2d. The writ being directed to the sheriff, the coroner had no authority to execute it. Hughes vs. Martin, 1 Ark. 386. If the sheriff was disqualified to serve the writ, there should have been an affidavit of the fact, and the writ directed to the coroner. Gould’s Dig., chap. 38, sec. 7, 8; 14 Ark. 59.
The judgment must be reversed, the cause remanded, and the plaintiff in error must be regarded as in court under the rule, &c.
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Mr. Chief Justice English
delivered the opinion of the court.
Mary B. Sexton, widow and executrix of Wm. Sexton, complainant in the bill, alleges, in substance, that after the death of her husband, Thomas N. Byers represented to her that her husband was indebted to him, at the time of his death, in the sum of $709 78, for professional services as an attorney, etc. That knowing that Byers had been the attorney of her husband, having full confidence in his integrity, and confiding in the truth of his statements, complainant executed to him her note for the amount so represented by him to be due, etc. That she afterwards was informed that his statements were untrue, that her husband had settled with him before his death, and nothing remained due, and that the note was obtained from her without consideration, by misrepresentation and fraud. That Byers had sued her on the note, obtained judgment by default, etc., etc.
The bill prays for discovery, and that the judgment be enjoined.
Thomas N. Byers, the defendant, after filing a very defective answer to the bill, departed this life; and it seems that Wm. Byers, his administrator, was represented by attorney, 'at the hearing, and appealed from the decree, though it does not appear that any formal steps were taken to make him a party.
The cause was heard upon the bill and exhibits, the answer of Byers, and two depositions taken and read upon the part of Mrs. Sexton; and the court decreed as prayed by the bill.
There was neither exception nor replication to the answer.
There being no replication to the answer, the complainant had no right to read depositions to prove the allegations of the bill or overturn the statements of the answer, Sneed et al vs. Town, 4 Eng. 537. The material allegations of the bill were not admitted by the answer, and without the depositions, the complainant’s case was not made out (if it was by them) and she was not entitled to a decree.
The decree must be reversed, and the cause remanded, with leave to the parties to amend their pleadings if they shall desire so to do.
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Mr.^fÉstice Compton
delivered the opinion of the Court.
This was a bill in equity brought by Mitchell & wife against Etter and others, to cancel a tax title, under which the defendants claimed certain lands lying in the county of Hempstead.
At the hearing in the court below', the chancellor was of opinion that the tax title, as to a part of the lands, was valid, and decreed accordingly, upon the ground that there was no irregularity in the assessment; and in this did not err, according to the decision of this court in Kinsworthy vs. Mitchell & wife, decided at January term, 1860, where, as to this point, the facts were the same as in this case. As to the residue of the lands, namely, the S. W ¼ Sec. 26, T. 11, R. 25 W; S. E.¼ Sec. 22, T. 10, R. 27 W; S. W¼. Sec. 23, T. 10, R. 27 W.; W¼ S. E.¼ Sec. 23, T. 10, R. 27 W., the tax title was declared to be void, and was canceled, for the reason that these lands were sold for the taxes of three years, when the taxes for one year only remained unpaid. That this irregularity made the sale void, was also decided in Kinsworthy vs. Mitchell & wife, Supra. But it was contended for the defendants in the court below, and it isinsisted here, that though their title was void, yet the complainants were barred of their remedy by the limitation act, prescribing the time within which actions shall be brought for the recovery of lands sold for taxes. Eng. Dig. Chap. 99, sec. G. The act provides that “ all “ actions against the purchaser, his heirs, or assigns, for the re- “ covery of lands sold by any collector of the revenue for the “ non-payment of taxes, and for lands sold at judicial sales, shall “ be brought within five years after the date-of such sale, and “ not thereafter; saving to minors, and persons of unsound “ mind the period, of three years after such disability shall have “ been removed.”
The lands are claimed by Mrs. Mitchell under the will of her former hüsband; they were sold for taxes on'the 3rd November, 1851, Mrs. Mitchell being then a widow; and the bill was filed on the 3d December, 1856. The lands were wild and uncultivated, and from the date of the sale to the filing of the bill, were not in the actual possession of either of the partieAo this controversy, though the defendants, after the sale,alway$^enly claimed the lands, and paid taxes on them. These are jlh facts, and the question is, whether the complainants are barrea^, Before proceeding further, however, we will remark, for the purpose of laying it out of the question, that an undivided half of the lands was at the date of the tax sale vested in the infant daughter of Mrs. Mitchell, to whose interest Mrs. Mitchel^ under the will of her said husband, succeeded by right of sur-vivorship, her daughter having died in June, 1853, while yet an infant under the age of twenty-one years. Of course, the statute did not begin to run until the death of the infant, and upon no possible construction of it could we hold that Mrs. Mitchell was barred as to the half thus acquired, there not being five years from the death of the infant to the commencement of the suit. But she is barred as to the other half, if it be held that the period of limitation begins at the date of the sale, and we know of no principle of law, or rule of construction, which would warrant us in holding that it does not. The words are “ all actions, etc., shall be brought within five years after the date of such sale, and not thereafter.” This language is strong and unambiguous, leaving no room for construction, unless it be of that astute character, not to be indulged in, by which the provisions of any statute, however plain, mightbe got rid of, if the court should happen to think them unwise or impracticable. With the policy of enactments the courts have no concern. That belongs to another department. If the statute does not begin to run from the date of the sale, when does it begin Must there be an actual possession before it begins? That cannot be. The act is silent as to possession, and if by construction possession was required, the act could be applied in but few cases, and would be almost useless, for it is a well known fact, that most of the lands sold for taxes in this State, are wild and unimproved, and so remain for years after the sale, the purchaser seldom or never entering upon them; and this was eminently so, at the time the act was passed, and we must suppose the Legislature knew the fact. Furthermore, to hold that the statute does not begin to run until there is an actual possession, would make the words “ date of such sale” mean nothing; and to say that the statute begins to run from the date of the sale, provided the purchaser takes possession then, would be no better, for it would be equivalent to saying that the action should be brought within five years after possession taken. Any such construction would be obviously at war with both the letter and spirit of the enactment. See Falkner vs. Dorman, 7 Wis. 388.
We are aware that the Supreme Court of Pennsylvania, upon the construction of a statute of that State similar to our own, have held in Waln vs. Shearman, 8 Serg. & Rawle 536, that the period of limitation for the institution of a suit for the recovery of land sold for taxes under their statute, is to be computed from the time the purchaser enters into possession, and not from the time of the sale, overruling the previous decision of the same court in Parish vs. Stevens, 3 Serg. Rawle 298. The ground upon which the decision in Waln vs. Shearman was put, as appears from the reasoning of the learned judges who delivered opinions in the case, was that unless the purchaser went into actual possession, there was no mode of legal proceeding, under their peculiar system of laws, by which the legality of the tax sale could be tested, and the sale held void if found to be so before it ripened into an indefeasible title by lapse of time. Thus, it wa‘s said" by "Tilghman 0. J., “Suppose now, that a purchaser at the sheriff’s sale for taxes, should decline to take possession for,fjve* years, and that under the laws of the commonwealth, no action for the recovery of the lands could be brought against a person not in possession, could it be imagined that under such circumstances the man whose land had been sold for taxes, should be forever barred the opportunity of showing that the sale had been made contrary to law ? Would it not be more reasonable to say, that such monstrous injustice could never have been intended, and in such case the general expressions in the act of Assembly should be so modified as to extend only to persons who took possession under their purchase, and to allow the former owner five years for bringing his action from the time when he first might- have brought it, viz : from the time of the purchaser’s entering into possession?” And by Duncan J., it was said : “ When the Legislature limited this time of action to five years, they looked not only to a possession, but to a 'possession under the sale, to an action in which the validity of the sale could be tried. But where the possession is vacant, what action can be brought ? A personal action could not be sustained against the purchaser; no action would lie against him merely for buying at commissioners’ sales. Besides, if he resided out of the county, it would not follow his person, it would not be transitory. Whatever the action is, it must be local; and you must find an actor and an act done in the county, or you can have' no action. Ejectment is the only action. If the old form were not abolished, you might proceed as on a vacant possession, but that would not answer the views of the Legislate e; the legality of the sale could not be tried. But that form is abolished, and the substitute, the writ of ejectment (and no other writ will lie) is given by the act of the 21st March, 1806; and this writ must be brought against a person in rerum natura, a real person, who hath the actual possession.”
Now, whatever peculiarities there may be in the jurisprudence of Pennsylvania, it is manifest that, elsewhere, the former owner whose land has been sold for taxes, may, by bill in equity, have the purchaser’s title declared void, if it beso, and his deed delivered up and canceled, though he never was in possession. Such is the uniform practice in this State — indeed, the bill in this case is one of that character — and such we understand to be the rule generally, upon the principle that the quia timet ju-iisdiction of a court of equity maybe successfully invoked to remove clouds from title. 2 Story Eq. sec. 700; Hamilton vs. Cummings, 1 John. Ch. R. 520; The Chautaque County Bank vs. White, 6 Barb. S. C. R. 605; Shell et al. vs. Martin, 19 Ark. 139. So that the reason of the rule laid down in Wain vs. Shearman has no application here; the strained construction put upon the statute in that case, seems to have been adopted as a sort of necessity growing out of the fact that there was no mode of trying the validity of the tax title, unless the purchaser had gone into possession. There being no such necessity with us, the decision in that case cannot be regarded as authority in this.
Unless we could disregard and virtually nullify the plain language of the act, we must, and do hold, that the period of limitation begins at the date of the sale. The consequence is that Mrs. Mitchell’s remedy as to one half the lands in controversy, is barred.
So much of the decree as relates to the lands, as to which Mrs. Mitchell is held to be barred, must be reversed; in all other respects, the decree must be affirmed, each party paying one half the costs in this court.
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Mr. Chief Justice English
delivered the opinion of the court.
This was assumpsit by Dickins against Bernard, in the Yell Circuit Court. The declaration contained the common indebi-tatus counts for work and labor, &c., goods, wares and merchandize, &c., money had and received, &c., and a count upon an account stated. The suit was commenced 4th February, 1859.
The defendant pleaded the general issue, and on the trial the following evidence was introduced, as stated in the bill of exceptions :
A witness for the plaintiff testified that in January, 1859, on .Saturday, he was called on to witness a contract between the plaintiff and defendant for the sale of goods then in a store-house in Dardanelle. That the terms of the contract were, that the plaintiff was to sell to the defendant the lot of goods at the invoice price until they amounted to the sum of $250, and all over that amount the plaintiff was to deduct ten per cent from the invoice price of the goods ; and defendant was to pay $100 in money down on delivery, and a note on John H.' Jones for about $50 at the same time, and the balance, if any, in twelve months from that time. That the goods were invoiced on Sunday and Sunday-night following. That defendant then took the key of the house in which the goods were deposited ; and that on Monday another witness bought of defendant two wagon boxes, wdiich were part of the goods so sold. That plaintiff went into the house and delivered the boxes to the witness, at the instance and request of defendant, and that witness paid defendant for the same in the presence of the plaintiff. Another witness stated that defendant, after this sale, told him he did not like the goods ; and that afterwards the plaintiff had the goods, so sold to the defendant, boxed up. That afterwards defendant stated to plaintiff, he did not want to have any thing to do -with the goods; plaintiff proposed to invoice them again if not satisfactory to defendant, and defendant said that he did not want to have any thing to do with the goods. That the invoice price of the goods amounted to $8G1.
Upon the above evidence, the jury rendered a verdict in favor of plaintiff for $150 in damages.
A record entry, and the bill of exceptions, state that the defendant moved for a new trial, and that the court overruled the motion, but the motion does not appear in the transcript, nor are the grounds of the motion stated in the bill of exceptions^ nor does it appear from the bill of exceptions that the court gave any charge to the jury, or ruled any matter of law, during the trial. The only question arising upon the record, therefore, is, did the court err in refusing a new trial ? in other words, was there any evidence to support the verdict?
1. The verdict for $150 must have been for the $100 in money^ which, by the terms of the contract, Bernard was to pay Dickins on delivery of the goods, and for the amount of the note on Jones, which note Dickins was to receive at the same time. The remainder of the purchase money was not due at the time the suit was commenced.
But Dickins was not entitled to recover the value of the note on Jones under the common count; he should have declared specially on the contract. Mr. Gkeenlbaf, in his work on Evi- denct, vol. 2, sec. 104, says : “ The law on this subject may be reduced to these three general rules. (1) So long as the contract continues executory, the plaintiff must declare specially ; but when it has been executed on his part, and nothing remains but the payment of the price in money, by the defendant, which is nothing more than the law would imply against him, the plaintiff may declare generally, using the common counts, or may declare specially on the original contract, at his election. If the mode of payment was any other than in money, the count must be on the original contract, and if it was to be in money, and a term of credit was allowed, the action, though on the common counts, must not be brought until the term of credit expires, &c. The other two rules referred to need not be stated, as they are not applicable to this case.
Here, assuming it to have been proven that the goods were delivered by the plaintiff below, the contract was executed on his part, and there remained nothing more to be done, but the payment of the price by the defendant; but a part of the price was to be paid in a note upon a third person, which was not money,but property, (a chose in action,) and in order to recover the value of the note, if not delivered, the plaintiff should have declared specially on the contract.
2. The second point discussed for the appellant, is, that the jury were not warranted in finding, upon the evidence, that there was such a delivery of the goods as would take the contract of sale out of the statute of frauds ; but inasmuch as the judgment must be reversed on the first point, we shall give no opinion upon the second.
The judgment is reversed, and the cause remanded for further proceedings.
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Mr. Justice Compton
delivered the opinion of the Court.
The appellant was convicted in the court below, and fined fifty dollars, for keeping a common gaming house; a motion for a new trial'having been made and overruled, he appealed to this court.
The indictment charges that the appellant unlawfully did keep and maintain a certain common gaming house, and unlaw fully and wilfully did cause and procure divers idle and evil disposed persons to frequent said house and to play together at certain unlawful games at cards called pocre, upon which money was bet, ete. It was proven on the trial that divers persons had frequently met together, and engaged in card playing at the house of the appellant; but it was not shown in evidence that they played pocre; and this is one of the grounds relied on by the appellant in this court, for a reversal of the judgment.
It was not necessai'y to charge in the indictment, that any particular game was played, but having so charged, the Slate, according to the previous decisions of this court, was bound to prove the charge as made. Hancy vs. The State 4 Eng. 193; Shover vs. The State 5 Eng. 259. The principle decided in these cases is decisive of the question now presented ; and in Vanderworker vs. The State 13 Ark. 702, which was an indictment for keeping a common gaming house, it was said: “ In the allegation of what was transacted” (at the gaming house) “ it would not be essential to specify what particular games the visitors engaged in while remaining there. The common law adjudges such an establishment to be per se a common nuisance, and in proceeding against any given house as a common nuisance, or against the keeper of it, it can only be necessary to allege such facts as will show it such in. the eye of the law, and all particularity beyond that would be unnecessary and encumber the prosecution.”
The highest fine which the la w imposes for the offence charged in the indictment is one hundred dollai’sjand consequently it was error to instruct the jury, that if they found the appellant guilty, they might assess his fine at any sum not exceeding two hundred and fifty dollars; but the jury having fined the appellant fifty dollars only, he was not injured by the error, and cannot complain.
The judgment, however, must be reversed, for the error first above indicated, and the cause remanded.
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Mr. Justice FaiRchild
delivered the opinion of the court.
To an action of trover the defendant pleaded the statute of limitations of three years, which, on motion of the plaintiff, the court struck from the files.
This the second, but the main objection to the’proeeedings of the court below, for which its judgment is asked to be reversed.
The simple question presented for our consideration is whether the action of trover is subject to the limitation of three or five years.
The 10 th section of chapter 106 of Gould's Digest, in enumerating what actions shall be brought within three years from the accrual of the cause of action, has this clause: “fifth, all actions for taking or injuring any goods or chattels.”
This court has decided that actions of replevin and detinue fall within this provision. Payne vs. Bruton, 5 Eng. 57; Sullivan vs. Hadley, 16 Ark. 149, 152.
Although trover does not complain of the violent taking or forcible injury of chattels, it does allege their conversion as an injury to the plaintiff; and any recovery that is had in the action is for that injury, it being estimated at the value .of the thing converted.
It is as much an action for the taking of chattels as are replevin in the detinet and detinue, and is a concurrent remedy with them for the detention of chattels, which is injurious to the owner. It is a concurrent remedy with trespass for the taking of personal property, though it is distinguished from it in waiving damages for the mere taking, and from detinue and replevin in the deti-net, in that it does not seek to recover the thing detained, but its value.
But in all the elementary books it is classed with these actions as an action founded upon wrong done by the defendant.
We think the same period of limitations should attach to trover, as to the actions of replevin and detinue; that three years has properly bqen held to be the limitation applicable to them by our statute: that the action of trover is embraced within the fifth clause of the 10th section of our present limitation law, and that Ryburn vs. Pryor, 14 Ark. 519, announcing five years to be the term of limitations for actions of trover, is erronous and ought to be overruled.
The judgment the Circuit Court of Prairie county is reversed, with instructions to allow the plea of three years limitations to be re-instated, and to overrule the motion to strike it from the record.
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Mr. Justice Compton
delivered the opinion of the court.
From the date of the judicial sale, under which the defendant claims the land in controversy, to the institution of the suit in this case, a period of more than five years elapsed. The remedy is therefore barred, according to the ruling of this court in James B. Keatts vs. Fowler's Representatives, at the present term, and in Mitchell & Wife vs. Etter et al., decided at the October term, 1860.
Let the judgment be affirmed.
Mr. Justice Fairchild did not sit in this case.
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-123,
127,
20,
-77,
39,
-104,
-93,
-54,
110,
-112,
49,
0,
-24,
91,
-90,
-58,
84,
73,
-103,
8,
54,
102,
32,
105,
-25,
104,
-120,
15,
-34,
-115,
-90,
-60,
120,
-29,
72,
-66,
-99,
116,
16,
-90,
124,
102,
-116,
80,
44,
22,
-118,
-44,
-95,
-113,
58,
-108,
66,
-37,
-89,
-77,
112,
-49,
-86,
93,
19,
53,
-101,
15,
-40
] |
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