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Per Curiam.
In 1990, the appellant, Reno Swopes, pleaded guilty to second-degree battery, kidnapping, and aggravated robbery. The trial court sentenced him to an aggregate term of sixty-five years in the Arkansas Department of Correction. In 1993, Swopes filed a petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. The Circuit Court denied relief, and Swopes attempted to appeal that order in this court. The appeal was not accepted by the Clerk, however, because the record was never lodged.
In 1996, Swopes filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Arkansas. In the petition, he alleged that his constitutional rights were violated when the trial court pronounced sentence without the presence of Swopes or his attorney. The District Court agreed that there had been a constitutional violation, and it issued an order that provided that a writ of habeas corpus would issue unless Swopes was resentenced within 120 days.
Pursuant to the order of the federal court, the trial court held a hearing in which it resentenced Swopes to the same term in the Arkansas Department of Correction. A new judgment and commitment order was filed on March 7, 1997. A week later, on March 14, 1997, Swopes filed a motion to withdraw his guilty plea pursuant to Arkansas Criminal Procedure Rule 26.1. The Circuit Court, finding that the claims raised in the motion to withdraw the guilty plea could have been raised in Swopes’s previous petition under Rule 37, denied relief. Swopes now appeals that order. We affirm.
On appeal, Swopes argues that the Circuit Court erred in denying his motion to withdraw his guilty plea. His argument appears to be twofold. First, he contends that the motion to withdraw his guilty plea is timely because the federal court’s ■ order, which reopened the matter of sentencing, “opened the door” to the filing of the motion because, under Rule 26.1, a motion to withdraw a guilty plea is timely if it is filed before sentencing. Second, he contends that his previous Rule 37 petition should not bar the claims he raises in the motion to withdraw the guilty plea because at the time he filed the Rule 37 petition, he was unable to fully develop the claims therein because the trial court denied his motion to proceed as an indigent, and therefore, denied him access to a transcript of his plea hearing.
Even if we were inclined to hold that the federal court’s resentencing order opened the door to the filing of a motion to withdraw the guilty plea pursuant to Rule 26.1, we could not do so in this case because the record reveals that the resentencing hearing was held on March 4, 1997, and that another pronouncement of the sentence occurred on that date. The judgment reflecting the resentencing was entered on March 13, 1997. Swopes did not file his motion to withdraw his guilty plea until March 14, 1997. At the time that Swopes pleaded guilty, a motion under Rule 26.1 was considered timely only if it was filed before sentencing. A motion under Rule 37 was necessary after the sentence had been carried into execution. Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977). A sentence is placed into execution when the court issues a commitment order unless the trial court grants appellate bond or specifically delays execution upon other valid grounds. Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987); see also Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997). Therefore, the federal court order'is of little help to Swopes because his motion under Rule 26.1 still follows the issuance of the judgment and commitment Order, and therefore, is more properly considered a motion for postconvictión relief under Rule 37.
The question now becomes whether Swopes’s request for postconviction relief is barred by his previous attempt to proceed under Rule 37. Rule 37.2(b) clearly provides that “all grounds for relief available to a petitioner under this rule must be raised in his or her original petition unless the petition was denied without prejudice.” Accordingly, Swopes cannot now have a second chance to challenge his conviction. Moreover, we are unconvinced by Swopes’s argument that his inability to obtain a transcript of his plea hearing should allow another chance to raise claims for postconviction relief, for the record clearly indicates that Swopes did not file a motion for a transcript of the plea hearing until well after his Rule 37 petition had been denied.
Affirmed.
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Per Curiam.
On September 3, 1998, appellant was convicted of sexual abuse in the first degree, and judgment was entered on October 16, 1999. Appellant’s attorney, John M. Blair, filed a timely amended notice of appeal and designation of the record on November 2, 1998. On January 26, 1999, counsel for appellant filed a motion for extension of time to lodge the record on appeal. Circuit Judge Tom J. Keith signed an order extending the time for filing the record to June 2, 1999, which is more than seven months from the date of the conviction judgment entered on October 16, 1999. The appellate rules in relevant part provide that the time for filing a record shall not be extended more than seven months from the entry of judgment. Ark. R. App. P.—Civil 5(b); Ark. R. App. P.—Criminal 4. The clerk’s office refused to accept appellant’s record because it was late. See Yent v. State, 279 Ark. 268, 650 S.W.2d 577 (1983).
A motion for rule on the clerk has been filed on behalf of appellant to compel the clerk’s office to accept the record. In his motion, appellant states the record was not tendered too late for filing because the trial court entered an order within the original time period permitting additional time for filing the record.
This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part, but instead states that he is entitled to have the record filed because the trial court entered an order extending the time to June 2, 1999. Placing the responsibility on the trial court is not acceptable. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986); see also Morris v. Stroud, 317 Ark. 628, 883 S.W.2d 1 (1994); Perry v. State, 287 Ark. 384, 699 S.W.2d 739 (1985) (the rule of law is clear that it is the duty of counsel, not the judge, not the clerk, not the reporter, to perfect an appeal). Therefore, appellant’s motion must be denied.
Appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion forwarded to the Committee on Professional Conduct.
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Per Curiam.
Bill W. Bristow, Esq., of Jonesboro, First Congressional District, is hereby appointed to the Client Security Fund Committee for a five-year term to expire on July 31, 2004.
The Court thanks Mr. Bristow for accepting appointment to this most important Committee.
The Court expresses its appreciation to Mr. Richard A. Jarboe, Esq., whose term has expired, for his years of service to this Committee.
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Per Curiam.
Rule I of the Rules Governing Admission to the Bar provides that members of the Board of Law Examiners (Board) shall be appointed to three-year terms, subject to reappointment for an additional three years. Due to resignations and subsequent reappointments this provision has led to an uneven distribution of conclusion of terms. For example, in September of 1998, three Board members were replaced, and in September of 2000, four terms will come to a conclusion.
The Board has asked this Court to consider an amendment to Rule I to provide for a single six-year term. The Board states that such an amendment, properly implemented, would result in two terms coming to a conclusion in each of five years, and one term coming to a conclusion in the sixth year. The Board argues that such an outcome would contribute to continuity of experience from year to year. We agree.
We adopt and publish Rule I of the Rules Governing Admission to the Bar as it appears on the attachment to this order.
In order to implement the revised rule we will make appointments and reappointments to the Board in accord with the following schedule.
In September of this year the individual appointed to replace Blair Arnold will be asked to serve a seven-year term concluding in 2006. Present Board member Audrey Evans will be asked to serve an additional three-year term concluding in 2002.
In September, 2000, four members of the Board who have served at least six years will see their second terms come to a conclusion. Of that number, two new appointees will be asked to serve five-year terms concluding in 2005. Two of the present Board members will be asked to serve additional one-year terms concluding in 2001. Present Board member Jerry Pinson will be asked to serve an additional three-year term concluding in 2003.
In September, 2001, the initial three-year terms of three present Board members will come to a conclusion. Of that number, two will be asked to serve for three years concluding in 2004. One will be asked to serve for two years concluding in 2003.
Of the remaining three appointments due at that time, one new appointee will be asked to serve a five-year term concluding in 2006, and the remaining new appointees will be asked to serve six-year terms concluding in 2007.
RULE I.
COMPOSITION OF BOARD OF LAW EXAMINERS
The State Board of Law Examiners, (hereinafter Board), is hereby constituted, before whom all applicants for license must appear.
Said Board shall consist of eleven members: two from each Congressional District (as now or hereafter constituted), and the remainder from the State at large. Each appointment shall be for a term of six years, unless otherwise designated by the Supreme Court. Vacancies occurring from causes other than expiration of term of office will be filled by the Supreme Court as they occur, and the person so appointed shall serve the remainder of the term of his or her predecessor. The Board, from its members, shall annually select its own chair. Members shall continue to serve beyond their designated term until such time as their successor is qualified and appointed by the Court.
The Board, its individual members, Executive Secretary and employees and agents of the Board are absolutely immune from suit or action for their activities in discharge of their duties hereunder to the full extent of judicial immunity in Arkansas.
The Board may adopt regulations consistent with these rules, to be submitted to the Arkansas Supreme Court for approval prior to their implementation. Any regulations adopted by the Board and approved by the Court shall appear as an appendix to the Rules Governing Admission to the Bar. (Per Curiam Order, February 10, 1969; amended by Per Curiam Order, May 18, 1992; amended by per curiam July 17, 1995; amended by Per Curiam Order, September 30, 1999.)
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W. H.“Dub” Arnold, Chief Justice.
The appellant, James W. Windsor, was found guilty of two counts of first-degree murder for the July 17, 1997, murders of Donald Moser and Rebecca Smith and was sentenced to two life terms of imprisonment. Seeking revenge over a drug deal gone awry, appellant, along with Marshall Ramsey and Dena Tucker, drove a red pickup truck, previously reported stolen, to the victims’ home, planning to burn the victims’ house down with Moser and Smith inside. After threatening the victims, a struggle ensued, wherein Donald Moser was shot in the chest and repeatedly beaten in the head.
Dena Tucker then stabbed Rebecca Smith approximately twenty times in the neck with a butcher knife; appellant joined in by beating Smith in the head several times with the barrel of a shotgun. Fires were then started throughout the victims’ home. Leaving the victims for dead, the three then left the scene. Appellant and Ramsey dropped Tucker off at her home in Perry County, then returned to their homes in Texas.
Both victims died. The medical examiner testified at trial that Donald Moser died as a result of both the gunshot wounds and the head beatings, although either one alone would have caused his death. He further testified that Rebecca Smith died as a result of the stabbing and head beatings, although either one alone would have caused her death, as well.
Marshall Ramsey entered into a plea agreement with the State wherein he pleaded guilty to two lesser charges of second-degree murder, as well as arson, and received a much-reduced sentence. This offer was made available to him only in exchange for his truthful testimony against appellant at appellant’s trial. Marshall Ramsey testified against appellant.
Although appellant was charged with two counts of capital felony murder, as well as arson, appellant was found guilty at trial of two counts of murder in the first degree and was found not guilty of arson. He was sentenced to two terms of life imprisonment. He now brings this appeal.
For his appeal, appellant asserts the following:
(1) The trial court erred in not suppressing Marshall Ramsey’s testimony due to witness bribery;
(2) The evidence at trial was insufficient to convict him on first-degree murder charges;
(3) The trial court erred in disallowing the defendant from testifying about what Dean Tucker and Marshall Ramsey stated in furtherance of the conspiracy.
I. Witness bribery
In reviewing a trial judge’s ruling on a motion to suppress, this Court makes an independent determination based upon the totality of the circumstances, viewing the evidence in a light most favorable to the State; we reverse only if the ruling is clearly against the preponderance of the evidence. Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998); Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996).
Prior to trial, appellant filed a motion in limine, requesting that Marshall Ramsey’s testimony at appellant’s trial be excluded, alleging that it would be the result of witness bribery in violation of Ark. Code Ann. § 5-53-108 (Repl. 1997). Marshall Ramsey had entered into a plea agreement with the State wherein he pleaded guilty to two lesser charges of second-degree murder, as well as arson, and received a much-reduced sentence of forty years for each of the second-degree murders, with fifteen years suspended on each count, and a thirty-year sentence on the charge of arson, which was suspended in its entirety. This offer was made available to him only in exchange for his truthful testimony against appellant at appellant’s trial. Marshall Ramsey testified against appellant at appellant’s trial. Appellant’s motion in limine sought to exclude this testimony as illegal due to the inducement to influence Marshall Ramsey’s testimony. The motion was denied by the trial court.
Appellant contends that the trial court erred in not excluding the testimony of Marshall Ramsey, the State’s central witness against appellant. As he did below, appellant now argues that the State engaged in witness bribery by granting Mr. Ramsey leniency in his sentence in exchange for his testimony at appellant’s trial. As authority for this contention, appellant cites United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), wherein the Tenth Circuit Court of Appeals found that the prosecutor in that case, who offered a co-conspirator a downward departure from his sentence if he testified against Singleton, had violated the federal witness bribery statute. The court therein suppressed the co-conspirator’s testimony.
While the Singleton case might otherwise be compelling to support appellant’s argument, the Tenth Circuit later vacated this decision on July 10, 1998, and, on its own motion, granted rehearing era banc. The case was overruled upon rehearing era banc on January 8, 1999. United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999), cert. denied, 119 S.Ct. 2371, 144 L.Ed.2d 775 (1999). Therefore, appellant’s reliance on the Singleton case is erroneous.
Further, even if Singleton had not been overturned, appellant’s reliance on same is still erroneous because the law in Arkansas regarding witness bribery is different from the federal law on which Singleton was based. Federal law requires no intent or purpose to influence, while Arkansas does. See Ark. Code Ann. § 5-53-108 (Repl. 1997).
It is routine in criminal prosecutions for the State to use accessories to testify under a plea bargain that promises a request for a reduced sentence. See United States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987). After all, because the trial court is the sentencing entity, the prosecutor may only request a reduced sentence; the trial court does not have to accept any plea agreement or its terms. Each criminal defendant is expressly asked whether he or she understands this at the time he or she is entering a plea of guilty. To suggest, as appellant does, that the prosecutor in this case has violated Ark. Code Ann. § 5-53-108 and should, therefore, be subject to criminal prosecution for entering into a plea agreement with Mr. Ramsey is nonsense. This Court will not interpret a statute, even a criminal one, so as to reach an absurd conclusion that is contrary to legislative intent. See Mings v. State, 316 Ark. 650, 873 S.W.2d 559 (1994).
Appellant was given ample opportunity to cross-examine Ramsey concerning his plea agreement with the State; in fact, appellant did cross-examine Ramsey on this issue quite extensively. In short, appellant’s contention that Mr. Ramsey’s testimony should have been excluded altogether has no basis in the law. We, therefore, hold that the trial court correctly denied his motion in limine to suppress Ramsey’s testimony.
II. Sufficiency of the evidence
At trial, appellant moved for a directed verdict at the conclusion of the State’s case and argued two points: (1) that there was no evidence that he committed the murders; (2) that there was insufficient evidence to corroborate the testimony of Marshall Ramsey, a purported accomplice. The trial court denied his motion. Appellant renewed his directed-verdict motion at the close of all the evidence and the trial court once again denied it.
On appeal, appellant argues first that because the cause of death of the two victims, as testified to by the medical examiner, was both a gunshot wound and head injuries as to Mr. Moser, although either alone would have caused his death, and both stab wounds and head injuries as to Ms. Smith, although either alone would have caused her death, it is impossible to deem appellant’s infliction of the head injuries as the cause of death of the victims. Further, appellant contends that because Marshall Ramsey testified that he (Ramsey) shot Moser and that Dena Tucker stabbed Smith, appellant’s alleged infliction of head beatings on the victims was “inconsequential,” and does not amount to “substantial evidence” in order to support a conviction on two counts of first-degree murder.
Second, appellant argues that there was no evidence to corroborate Marshall Ramsey’s testimony, and because Ramsey was an accomplice, his testimony alone is insufficient to establish the commission of the offense and to connect the appellant with same. Appellant cites Ark. Code Ann. § 16-89-111 (e)(1) (1987), which states, “A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence, tending to connect the defendant with the commission of the offense.” Appellant further argues that Dena Tucker’s testimony may not be used to corroborate Marshall Ramsey’s testimony because she, too, was an accomplice.
Motions for directed verdicts are treated as challenges to the sufficiency of the evidence. Tinsley v. State, 338 Ark. 342, 993 S.W.2d 898 (1999); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998); McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997) . The test on appeal is whether there is substantial evidence to support the verdict. Jameson v. State, 333 Ark. 128, 970 S.W.2d 785 (1998). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993); Lloyd v. State, 332 Ark. 1, 962 S.W.2d 365 (1998); Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997); McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997).
Appellant’s arguments fail for several reasons. First, taking his arguments in reverse order, appellant’s argument that Dena Tucker was an accomplice and therefore cannot corroborate Marshall Ramsey’s testimony was never argued below. Therefore, this Court may not address this point, as it is well settled that we will not address arguments raised for the first time on appeal. See, e.g., McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997).
Second, appellant never requested at trial that Marshall Ramsey be declared an accomplice as a matter of law, nor did he request that his status be submitted to the jury for determination. In addition, appellant did not even request a jury instruction to the effect that the testimony of an accomplice requires corroboration. This Court has clearly held that the appellant bears the bur den of proving that a witness is an accomplice whose testimony must be corroborated. Lloyd v. State, 332 Ark. 1, 962 S.W.2d 365 (1998). A defendant must either have the trial court declare a witness to be an accomplice as a matter of law or submit the issue to the jury for determination. Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996); Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995).
When the trial court does not find a witness to be an accomplice, and the defendant fails to request that accomplice instructions be submitted to the jury for consideration, the issue is not preserved for appellate review. Lloyd v. State, supra; Rockett v. State, supra. As a result, appellant’s failure to have Ramsey declared an accomplice or to have the jury consider it precludes him from raising the witness-corroboration rule on appeal. Lloyd v. State, supra; Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993).
Finally, in regard to appellant’s challenge to the sufficiency of the evidence to convict him of two counts of first-degree murder, the trial court properly denied this motion, as well, as substantial evidence existed to support his convictions for first-degree murder. At trial, the testimony revealed that on July 17, 1997, Rodney Sanders, a fireman in Conway, responded to a report of a house fire in rural Faulkner County. When Sanders arrived at approximately 7:15 a.m. he found that an older wood-frame house had been destroyed by a fire. Sanders noticed a car in the front yard and was therefore concerned that someone might have died in the fire. He sifted through the remains of the house and found two bodies. Patrick Moore, the Faulkner County Coroner, identified the bodies, which had been found in separate bedrooms, as Donald Moser and Rebecca Smith.
Dr. Stephen Erickson, a medical examiner for the Arkansas State Crime Laboratory, testified that he performed autopsies on both victims. He found that Donald Moser died of a gunshot wound to the chest, although he also suffered multiple skull fractures and head trauma consistent with being hit with a heavy object. Dr. Erickson also found that Rebecca Smith had been stabbed in the heart and lungs, and that she also suffered severe cranial cerebral injuries similar to those sustained by Mr. Moser. He testified that the skull fractures the victims received were severe enough alone to cause death.
Dena Tucker testified that her son had asked appellant and Marshall Ramsey, who were living in Texas at the time, to pick him up in Arkansas and drive him to Texas so he could be with his pregnant girlfriend. Appellant and Ramsey agreed, drove to Arkansas, and stayed at Dena Tucker’s house. While at her house, appellant and Ramsey met Donald Moser, who was, at the time, having an affair with Ms. Tucker.
Testimony continued that appellant had struck a deal with Moser, a methamphetamine dealer, in which appellant would drive to Texas to obtain chemicals that were to be processed by Moser into methamphetamine. In return, appellant was to receive $8,000 from Moser for the chemicals and $250 in expense money. However, when appellant returned from Texas with the chemicals, he learned that Moser could not afford to pay him. In addition, Moser had stopped seeing Dena Tucker and appellant’s repeated efforts to locate him failed.
Appellant and Ramsey spent three days looking for Moser. Tucker testified that once, she and appellant went to Moser’s home and appellant began to beat on the door with a baseball bat in an attempt to get Moser to come outside. However, Rebecca Smith was the only one home at the time; she called out to appellant to leave her alone, and she eventually called the police. A recording of Smith’s call to police was played for the jury.
Eddie Lee testified that on July 17, 1997, appellant came to his house at approximately 4:30 a.m. and accused Lee of hiding Moser. Appellant informed Lee that Moser owed him $250 and that he and a “buddy” were looking for him. Appellant left Lee’s house after they engaged in a protracted argument concerning Moser’s whereabouts. Lee recalled that the day before he witnessed appellant beating on Moser’s door with a baseball bat.
Eddie Schafer testified that at approximately 5:30 the same morning, he drove to Moser’s home to collect money that Moser owed him. Schafer noticed a red pickup truck parked outside Moser’s home. Schafer asked the driver if Moser was home, but the driver replied that he did not know. Schafer left, returned a short time later, and observed that the red truck had moved and that nobody was in the car. Schafer heard Moser inside the house cursing; he said it sounded like a “fight breaking out.” When he heard Rebecca Smith scream, Schafer left and drove to a nearby corner store. A short time later, he observed the same red truck speeding down the road near the store. The red truck had been reported stolen out of a garage the night before.
Sherry Martin, an employee of the corner store, testified that she noticed a suspicious unoccupied car with a Texas license plate parked outside the building when she opened the store around 6:00 a.m., the morning of July 17, 1997. Ms. Martin searched in vain for the owner of the car and then noticed a red truck speeding around the side of the store. When she saw appellant exit the red truck, Martin confronted him about whether he owned the car; appellant said that the car was his, apologized, and drove away.
Obviously, the State produced sufficient evidence to establish that a crime had been committed through the testimony of the State medical examiner. While it is true that the medical examiner testified that either the gunshot wound or the head injuries alone could have caused Mr. Moser’s death, and that either the stab wounds or the head injuries alone could have caused Ms. Smith’s death, the trial court found that the victims’ cause of death in this case was a question for the jury. We agree.
Further, Sherry Martin’s unequivocal testimony placing appellant in proximity to the crime scene on the morning the murders took place was confirmed by appellant’s own trial testimony, wherein he admitted that he had parked his vehicle at the corner store. Schafer’s testimony also placed the red truck at Moser’s home shortly before Ms. Martin saw appellant exit the red truck at the corner store. Further, appellant testified that he did, in fact, have a deal to supply Moser with chemicals for the manufacture of methamphetamine. Appellant’s testimony that Moser refused to pay him for the chemicals could very well have been a motive for the murders.
Finally, there was ample evidence adduced at trial showing that, prior to the murders, appellant acted in concert with Marshall Ramsey, who confessed to shooting Moser. Ramsey and appellant both went to Texas to obtain chemicals; they returned to Arkansas to deliver them to Moser; and, in the days prior to the murders, they both earnestly searched for Moser. Moreover, as stated above, appellant admitted at trial that he accompanied Ramsey to the corner store, which was near the scene of the murders.
In sum, these facts, taken in the light most favorable to the State, amount to sufficient evidence to convict appellant of the first-degree murders of both victims. Accordingly, the trial court properly denied appellant’s directed-verdict motion.
III. Cumulative evidence
At trial, during the direct examination of appellant, the trial court sustained a hearsay objection made by the State. Appellant made a proffer at the close of the evidence that Mr. Ramsey told him that Dena Tucker wanted to burn down the victims’ house with them inside, in order to kill them. As he did below, appellant now argues that the trial court erred in excluding that evidence pursuant to the co-conspirator exception to the hearsay rule, Ark. R. Evid. 801(d)(2) (1999). Appellant claims that Rule 801 would have allowed the testimony in as a statement made by a co-conspirator during the course and in furtherance of the conspiracy.
This Court has repeatedly held that prejudice is not presumed and that we will not reverse the trial court’s ruling absent a showing of prejudice. Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996). In this case, appellant has failed to demonstrate any prejudice from the exclusion of this evidence because Marshall Ramsey had already testified that Dena Tucker wanted to burn down the victims’ house. We, therefore, hold that as appellant simply sought to introduce cumulative evidence, he was not prejudiced by the trial court’s ruling in this regard. See Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 484 U.S. 872 (1987) (finding that testimony that merely cumulative cannot effect the substantial rights of a defendant).
IV. Rule 4-3 (h) Compliance
The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), and no reversible errors were found.
V. Conclusion
For all of the above-stated reasons, we hereby affirm the convictions and life sentences of appellant James W. Windsor on both first-degree murder charges.
Affirmed.
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Per Curiam.
On February 19, 1998, our opinion was handed down in this matter. We reversed the trial court and remanded the matter for further proceedings. The issue involved was whether state employees could sue the Arkansas Department of Education, Vocational and Technical Education Division, in state court for alleged violations of the Fair Labor Standards Act, 29 U.S.C.§§ 201-219 (1994 and Supp. I 1995). We held that they could and reversed the trial court’s judgment to the contrary.
A mandate was issued in this matter after petition for rehearing was denied. On April 30, 1998, the mandate was recalled in connection with the petition of the Arkansas Department of Education to the United States Supreme Court for a writ of certiorari.
On June 24, 1999, the United States Supreme Court granted the petition for a writ of certiorari and vacated the judgment and remanded the case for further consideration by this court in light of Alden v. Maine, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). The mandate from the United States Supreme Court was issued on July 23, 1999.
We order rebriefing in this case in light of Alden v. Maine, supra. The Clerk of the Supreme Court will set the briefing schedule.
Reporter's note: See Jacoby v. Arkansas Dep’t of Education, 331 Ark. 508, 962 S.W.2d 773 (1998).
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Per Curiam.
In accordance with our per curiam entered on May 20, 1999, James O. Clawson appeared before the court to show cause why he should not be held in contempt for failing to appeal appellant James Kirby’s case. Upon denying any fault, Mr. Clawson stated that, after the court previously remanded this case to the trial court for a hearing to determine if Mr. Kirby had requested counsel Clawson to appeal his case, Clawson was never given notice of such a hearing. As a result, Mr. Clawson asserts that he was never afforded the opportunity to be heard on the belated-notice-of-appeal issue. Our review of the transcript of the trial court’s February 8, 1999 hearing fails to reflect that notice was given Mr. Clawson, and the record also confirms Mr. Clawson made no appearance.
Before we continue further in this show-cause proceeding, it is necessary that a determination be made by the trial court as to whether Mr. Clawson was given notice of the February 8 hearing, and, if not, afford him the opportunity to present his testimony. Obviously, Mr. Kirby’s and his new counsel’s presence will be required to assure a complete record can be made for return to this court. After the trial court’s hearing, findings, and return of the record, this court will then decide if a motion for belated appeal should be granted and whether a special master is needed.
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Lavenski R. Smith, Justice.
Appellant, Tommy Phillips, appeals the order of the Pulaski County Circuit Court denying his motion to dismiss. Phillips contends the court’s order violated his Fifth Amendment right against double jeopardy. We disagree and affirm.
Phillips, along with Cochise Miles, was charged with capital murder and two counts of aggravated robbery. The State alleged Phillips fatally shot Van Dean Clause during a robbery of the Freight Damaged Grocery Store in Little Rock. Carr Stalnaker, who was delivering chips to the store, witnessed the crime. The perpetrators robbed Stalnaker at gunpoint but, fearing for his life, Stalnaker fled the scene after Clause was shot. Stalnaker later identified appellant as Clause’s assailant during a line-up at a Little Rock police station.
Phillips’s jury trial began on February 3, 1998, and proceeded normally until the sixth day, when just prior to closing arguments, attorney Bill Brown notified the court that as an officer of the court he had something he felt he must say regarding the proceedings. Based upon what he had read in the newspaper, Brown asserted that the court needed to be apprised of statements Brown believed could have been made by Carr Stalnaker during Cochise Miles’s line-up identification. Brown represented Miles at the time. Specifically, Brown stated he believed he overheard Stalnaker say, “I don’t know why I’m here. I didn’t see anything.” Phillips’s counsel and the deputy prosecutor acknowledged that Brown’s observation had been placed in the case file and was known by defense counsel prior to trial.
After Brown’s examination outside the presence of the jury, Phillips’s counsel moved the court to permit him to reopen the case and permit Brown’s examination as a defense witness. Following a brief recess, the court announced that, on its own motion, it was declaring a mistrial. Neither counsel objected. The court scheduled a new trial to commence on August 24, 1998. On July 28, 1998, Phillips filed a motion to dismiss, alleging that the court’s sua sponte mistrial ruling triggered double jeopardy protection, and a subsequent trial would be unconstitutional under federal and state constitutional provisions.
Standard of Review
The decision to order a mistrial and retry a criminal defendant lies within the sound discretion of the trial judge, and will be upheld absent an abuse of discretion. Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991). The trial court should resort to a mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Stanley v. State, 324 Ark. 310, 920 S.W.2d 835 (1996).
Double Jeopardy
Double jeopardy attaches in a jury trial once the jury is sworn. Tipton v. State, 331 Ark. 28, 959 S.W.2d 39 (1998); Hale v. State, 336 Ark. 345, 985 S.W.2d 303 (1999). We have held that a manifestly incorrect trial court decision to grant a mistrial will bar subsequent prosecution. Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986). The safeguard against being “subject for the same offense to be twice put in jeopardy of life and limb” is guaranteed by the Fifth Amendment to the U.S. Constitution and by Article 2, § 8, of the Arkansas Constitution. To further secure this right, our legislature has codified it as an affirmative defense to criminal prosecution. The relevant statute, Ark. Code Ann. § 5-1-112, provides in pertinent part:
[Affirmative defense — Former prosecution for same offense.]
A former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:
(3) The former prosecution wás terminated without the express or implied consent of the defendant after the jury was sworn or, if trial was before the court, after the first witness was sworn, unless the termination was justified by overruling necessity. (Emphasis added.)
From the language of the statute, as well as our double jeopardy cases, it is clear that once the jury is sworn, a criminal defendant cannot be tried on the same charge again unless he consented to the trial’s termination or it was justified by overruling necessity.
We have long held that a defendant’s consent to the termination of the trial can be either express or implied. If the defendant’s consent is evident, demonstration of an overruling necessity is not required in order to avoid the affirmative defense of double jeopardy. Whitmore v. State, 43 Ark. 271 (1884). We have found implied consent in circumstances where the mistrial is declared for the benefit of the defendant and the defendant does not object. Rowlins v. State, 319 Ark. 323, 891 S.W.2d 56 (1995); Woods v. State, 287 Ark. 212, 697 S.W.2d 890 (1985); Burnett v. State, 76 Ark. 295 (1905). In Woods, supra, a statement had not been provided to the defense in a timely fashion. The trial court granted continuance, and subsequently ordered a mistrial. On appeal, we held the mistrial was for Woods’s benefit and that implied consent existed. The court also noted the statute and quoted the Commentary to that section which provides:
Express consent occurs when the defendant moves to terminate the trial or agrees to termination on motion of the court or the state. The Model Penal Code declined to take a stand on whether mere failure to object to termination constitutes implied consent. Fortunately, the Arkansas Supreme Court has addressed the issue, developing what the Commission felt was a workable definition of implied consent. See, Franklin v. State, 149 Ark. 546 (1921); Burnett v. State, 76 Ark. 295 (1905). Consent is implied if the defendant fails to object to termination and the termination is for the benefit of the defendant. If the termination is for the benefit of the state, mere failure to object does not constitute consent.” Woods at 214.
In the instant case, Phillips requested to be allowed to reopen his case to protect his interests. The court, based on its view of the case, decided that mistrial was the best alternative to protect Phillips’s interest and so ordered. Just after the dismissal of the jury, the following colloquy occurred:
Prosecutor: Your Honor, I didn’t hear a motion for a mistrial.
The Court: The court did that on its own. Let me explain this very carefully. The State of Arkansas is seeking the death penalty in this case. - The court is going to take its own steps to make sure that justice is carried out. If there are persons who are switching testimony or statements, those have to be reviewed and a jury should hear those all the way through. . . . TR 175-176.
Additionally, at the August 7, 1998 hearing on Phillips’s motion to dismiss on grounds of double jeopardy, the court further stated in conversation with defense counsel:
The Court: Well, Mr. McClean, to be quite specific in this case you acknowledge to the Court, if I’m not mistaken, that you had made a mistake—
Mr. McClean: That’s correct:
The Court: — in not subpoenaing Bill Brown. You said that you had gone through the State’s files, you had looked in there and you had neglected for whatever reason to subpoena Mr. Brown. You asked for a remedy that would have required that after closing arguments had been made that we reopen this case — and put on the testimony of Mr. Brown. Now, I think that would have been highly prejudicial to your client to handle that that way. That’s the Court’s opinion of that. The man is facing a capital murder charge where he could get the death penalty. . . To me the stakes were too high for your client for you not to ask for a mistrial in the first place. In the interest of justice and what this Court considers to be orderly and given the Court’s impressions about how a capital murder case should be handled, that’s just a bit too awkward to submit something like that to the jury.
So, under the rule as the prosecutor has cited and as the Court looked at right away, there was no objection on your part. So there’s implied consent. That is the first ruling of this Court, that there was implied consent, even though it was sua sponte. The Court can order a mistrial sua sponte. And the second thing is that, even if that isn’t considered implied consent, there is in this particular instance, certainly where a person is facing the possible remedy — penalty of the death penalty, that the termination of this case was justified by overriding necessity. TR 618-619.
Thus, there is no question that the court ordered a mistrial for the appellant’s benefit. It is also clear appellant did not object. We, therefore, agree with the trial court and hold that implied consent exists and that appellant has not been subjected to double jeopardy.
Affirmed.
Ark. Code Ann. § 5-1-112 was formerly codified as Ark. Stat. Ann. § 41-106.
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Ray Thornton, Justice.
The State of Arkansas, appellant, brings this appeal of the decision of the Pulaski County Chancery Court which found that appellees, four Production Credit Associations, are entitled to immunity from state sales and income taxation by virtue of their status as “federal instrumentalities.” Because we agree with the chancery court that absent express congressional waiver, the PCAs are entitled to immunity from state taxation, we affirm the chancellor’s grant of appellees’ summary-judgment motion.
Appellees, Farm Credit Services of Central Arkansas, Farm Credit Services of Western Arkansas, Eastern Arkansas Production Credit Association, and Delta Production Credit Association, are Production Credit Associations (PCAs), corporations chartered under the Farm Credit Act of 1971. These corporate financial institutions, organized by ten or more farmers to provide loans and other banking services to farmers, are entities of the Farm Credit System, a government-sponsored enterprise created by Congress in 1916. The Federal Farm Loan Act, Pub. L. No. 64-158; 39 Stat. 360 (1916). In 1933, Congress established Production Credit Associations to carry out the federal purposes of pro viding agricultural credit to American farmers, and for a time, the government owned stock in PCAs in order to encourage and assist the PCAs. See H.R. Rep. No. 593, 92d Cong. 1st Sess. 8 (1971), Farm Credit Act of 1933, ch. 98, § 23, 48 Stat. 261.
The Farm Credit Act, Pub. L. No. 73-98; 48 Stat. 257 (1933), established twelve district federal land banks to make long-term loans to farmers through federal land bank associations. PCAs are designated by 12 U.S.C. §§ 2017 and 2077 as “federal instrumentalities.” Each association is a member of the Farm Credit System, which is divided into seven districts. Arkansas is part of the seventh farm credit district, known as Agribank, and is divided into four farm credit territories. Each association is restricted to certain territories outlined in its charter, and they are limited to making agricultural-purpose loans only to farmers who are members, operating on a cooperative basis.
In 1994, appellees, the four Arkansas PCAs, requested a refund of state income and sales taxes paid within the refund limitations period, claiming that they paid the taxes in error, because their status as “federal instrumentalities” exempts them from state taxation under the constitutional doctrine of intergovernmental tax immunity. Appellant, through the Department of Finance and Administration (hereinafter “The Department,”) denied their request. The PCAs brought suit in the Pulaski County Chancery Court contesting the denial of the refund. Both parties moved for summary judgment. On July 1, 1998, the trial court granted the PCAs’ motion, holding that PCAs are federal instrumentalities immune from state tax unless Congress waives that immunity, that Congress has not expressly waived that immunity for PCAs, and, therefore, that their status as federal instrumentalities renders them exempt from state taxation. The judgment ordered the Department to refund state income and sales taxes to the PCAs; the total sum at issue amounts to more than $1.2 million dollars, plus ten percent interest. The Department filed this appeal, contending that the trial court erred by deciding the issue of the PCAs’ exemption from state tax based upon the doctrine of intergovernmental tax immunity, as expressed and developed in M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), and its progeny, rather than upon 12 U.S.C. § 2077, a statutory exemption from federal and state taxation granted by Congress. In the alternative, the Department asserts that the trial court erred in holding that federal instrumentality status, in and of itself, is sufficient to entitle PCAs, who they assert are not essential parts of government, to implied immunity under the tax-immunity doctrine. The Department does not, however, challenge the constitutionality of the federal statute on the basis that Congress lacked authority to designate PCAs as instrumentalities of the United States, but, rather, asks us to construe the statute itself and conclude that notwithstanding their designation as an “instrumentality,” the PCAs are taxable.
This court reviews issues of statutory construction de novo; it is for this court to decide what a statute means. Arkansas Dep’t. of Health v. Westark Christian Action, 322 Ark. 440, 910 S.W.2d 199 (1995). We are not bound by the decision of the trial court. However, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998). The statute at issue reads:
Each production credit association and its obligations are instrumentalities of the United States and as such any and all notes, debentures, and other such obligations issued by such associations shall be exempt, both as to principal and interest, from all taxation (except surtaxes, estate, inheritance, and gift taxes) now and hereafter imposed by the United States or by any State, Territorial, or local taxing authority, except that interest on such obligations shall be subject to Federal income taxation in the hands of the holder.
12 U.S.C. § 2077 (1989).
As the Supreme Court first held in M’Culloch v. Maryland, supra, because of the Supremacy Clause of the United States Constitution, states have no power to tax federally created instrumentalities absent congressional authorization. “[T]he states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared.” Id. The doctrine of intergovernmental tax immunity is well understood, based upon principles of dual sovereignty. Our federal government is immune from taxation imposed by the state, unless that immunity is waived, explicitly or expressly, by a statutory waiver of that immunity. Federal Reserve Bank of St. Louis v. Metrocentre Improvement Dist. #1, 657 F.2d 183 (8th Cir. 1981)(Citing United States v. City of Adair, 539 F.2d 1185 (8th Cir. 1976), cert. denied 429 U.S. 1121 (1977), aff’d, 455 U.S. 995 (1982).
PCAs are federal instrumentalities, clearly designated as such by federal statutes. Once it has been determined that the PCAs are federal instrumentalities, there arises an implied immunity from state and local taxation. M’Culloch v. Maryland, supra. In order to subject federal instrumentalities such as PCAs to state taxation, Congress must enact a clear waiver of their exemption. Department of Employment v. United States, 385 U.S. 355 (1966). Once federal immunity from taxation is established, Congress must express any waiver of that immunity as a “clear, express, affirmative desire.” Federal Reserve Bank of St. Louis, supra. We note that 12 U.S.C. § 2077 does not contain an express waiver of constitutional immunity from taxes derived from the doctrine of intergovernmental tax immunity.
The current statutory enactment by Congress dealing with state taxation of PCAs states that “all notes, debentures, and other obligations” of the associations are exempt from state and federal taxation. 12 U.S.C. § 2077. The Department contends that because prior versions of the statute expressly exempted their “capital, reserves, surplus, and other funds, and their income,” Farm Credit Act of 1971, Pub. L. No. 92-181, § 2.17, 85 Stat. 583 (1971); Farm Credit Act of 1933, Pub. L. No. 73-75, § 63, 48 Stat. 257 (1933), and the current statutory provision no longer contains such additional immunity language, Congress has waived the PCAs’ exemption. However, we do not find that argument persuasive. The current version of § 2077, with its silence on the issue, compels a holding of immunity because, where Congress is silent, the tax immunity of federal instrumentalities is implied. See Graves v. New York ex rel. O’Keefe, 306 U.S. 466 (1939). See also Farm Credit Services of Mid-America v. Department of State Revenue, 705 N.E.2d 1089 (Indiana Tax Ct. 1999)(Because Congress had not waived the Agricultural Credit Association’s immunity from state taxation, under the Supremacy Clause, Indiana was without power to collect state tax from the association. “With respect to federal instrumentalities, it is the waiver and not the immunity which must be explicit.”) We have examined the language of the statute, 12 U.S.C. § 2077, and hold that it does not contain an express waiver of the tax exemption conferred by the doctrine of intergovernmental tax immunity.
We have concluded that the decision of the Pulaski County Chancery Court in granting the PCAs’ motion for summary judgment was correct and affirm the judgment in their favor for the refund of amounts paid as state income taxes and state sales taxes.
Affirmed.
The PCAs simultaneously filed suit in the Umted States District Court for the Eastern District of Arkansas against the State of Arkansas, seeking a declaratory judgment that they were exempt from state taxation and for an injunction against collection of future taxes. In 1995, in an unreported decision, United Stated District Judge Henry Woods granted the PCAs motion for summary judgment, finding that their statutory designation as a federal instrumentality exempts them from state taxation under the implied immunity doctrine and that states cannot tax them in the absence of a statute which clearly and affirmatively waives this implied immunity. The Department appealed to the United States Court of Appeals for the Eighth Circuit, which upheld the district court’s decision. Farm Credit Services of Central Arkansas, PCA et al. v. State of Arkansas, 76 F.3d 961 (8th Cir. 1995).
The PCAs then moved for summary judgment in Pulaski County Chancery Court, on the grounds that appellant was collaterally estopped by the Eighth Circuit decision from relitigating the legal issue of the PCAs’ entitlement to exemption. The Department responded with a petition for writ of certiorari to the United States Supreme Court, which was granted. The Pulaski County Chancery Court stayed its decision pending the outcome of the Supreme Court case. The Supreme Court did not address the merits of the exemption issue but held that the federal court lacked jurisdiction under the Tax Injunction Act, 28 U.S.C. § 1341, to consider the merits when the question could be presented to a state court, and when the instrumentality was not joined by the United States as a co-plaintiff. Arkansas v. Farm Credit Services of Central Arkansas, et al., 520 U.S. 821 (1997).
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George Rose Smith, Justice.
The State Board of Dental Examiners brought this suit to enjoin the appellant, Bob Hulva, from engaging in the practice of dentistry without a license. This appeal, which comes to us under Rule 29 (1) (a), is from a decree granting the injunction. For reversal it is argued that the governing statutes are unconstitutional for a number of reasons. We affirm the decree.
Hulva is not qualified to be licensed as a dentist, not having been to any medical or dental school or having graduated from high school. More than 20 years ago he worked for a few years in a dental laboratory and learned how to make dentures. With that experience he set up his own dental laboratory next to his home in Van Burén. None of his customers are referred to him by a licensed dentist. His work consists of taking either one or two impressions of the customer’s mouth, making the dentures, and delivering them to the customer. He is not trained to take x-rays or to diagnose or treat diseases of the mouth or gums. He makes dentures primarily for elderly people who either are in nursing homes or cannot afford the prices charged by dentists. He does not advertise.
The statutes, even before a 1981 amendment passed after this suit was filed, required that dental laboratories deliver their products through a licensed dentist, who ordinarily takes or has the impressions taken in his office and sends the impressions to the laboratory with a specific description of the work to be done. Ark. Stat. Ann. §§ 72-543 and -545 (Repl. 1979). Dr. Gill, a member of the Board, testified that he had four years of dental school and took an examination before obtaining his license to practice dentistry. In his training as a dentist he was educated to diagnose diseases, malignancies, and other conditions in the mouth that might interfere with the wearing of dentures. He testified that he examines the patient’s mouth and usually takes x-rays to determine if there are any areas that might be a detriment to the wearing of a denture. He takes the impressions and either makes the appliance himself or sends the impressions to a qualified laboratory. When the appliance comes back he seats it in the patient’s mouth and establishes certain relationships to be certain that the appliance is correct. The final responsibility for the functioning of the denture rests on the dentist.
Hulva challenges the validity of our statutes primarily on the ground that, contrary to the due process and equal protection clauses, he is being arbitrarily deprived of his livelihood, because no special skill or training is required for the work that he does. Such laws, however, have been upheld as a proper exercise of the police power for so many years and in so many jurisdictions that a detailed review of the cases is unnecessary. What we said almost a century ago is still true:
The legislative judgment that the welfare of the public requires that those practicing the dental profession shall possess the necessary skill and learning, and shall obtain a certificate, is probably conclusive; but if it were not, the court must take judicial knowledge that it is a profession requiring skill. The fact that the dentist employs his professional skill upon an important part of the body is, of course, known to everyone, and cannot be unknown to the courts. As this is known, it must follow that it may also be judicially known that one unskilled in the profession may injure the person who employs him. As this is so, then ... the Legislature may prescribe the qualifications of those permitted to practice the profession.
Gosnell v. State, 52 Ark. 228, 12 S.W. 392 (1889). Accord: Missionary Supporters v. Ark. State Bd. of Dental Examiners, 231 Ark. 38, 328 S.W.2d 139 (1959). Considerations such as those attested to by Dr. Gill demonstrate that our statutes are a permissible exercise of the state’s police power in the area of public health.
An Idaho case relied upon by the appellant, Berry v. Summers, 283 P.2d 1093 (1955), is not in point. There the statute that was held invalid provided in effect that only a licensed dentist could work in a dental laboratory, even though the worker performed no work whatever in the oral cavity of any person, took no impressions, and in fact had no contact at all with the ultimate recipient of the denture. Needless to say, Hulva is free to accept that kind of employment if he chooses.
The appellant’s remaining arguments require little comment. The statutes do not delegate legislative power, because the Board has made no regulation or order affecting Hulva that is anything more than the execution of the legislative mandates. We fail to see how the statutes are overly broad or indefinite insofar as they specifically prohibit the kind of dental work that Hulva is engaged in. Finally, the perfunctory argument that the statutes are in restraint of trade need not be considered, under the Dixon rule. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
Affirmed.
Purtle, J., dissents.
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John I. Purtle, Justice.
This is a tort action from the Circuit Court of Independence County, Arkansas, wherein appellant was found liable to the estate and heirs of three young men who were electrocuted when a boom on a vehicle contacted an overhead power line. The appellant argues six points for reversal. We reach only the first point because we find no evidence of negligence sufficient to support the verdicts. Therefore, we reverse and dismiss the cases.
On July 4, 1980, Russ Wilhite, d/b/a Art Sign Company, sent his son, Lew Wilhite, to erect a sign at Homer’s Bait Shop. Before arriving at the site where the sign was to be erected Lew picked up his friends, Ricky and David Pinson. The pole which was to support the sign was transported to the scene on a truck driven by Lew Wilhite. The truck had a bed-mounted boom with a connected cable used in raising or lowering materials. The evidence indicates that Lew Wilhite was on the back of the truck operating the boom and the two Pinson boys were on the ground when the boom came in contact with overhead power lines, owned and operated by the appellant. When the boom contacted the power line, it served as a conductor. The electricity flowed through the boom and into the bodies of the Pinson boys, who were alongside the truck apparently holding the pole which was to be erected on the site.
Wilhite, upon discovering that electricity was flowing through the boom into the bodies of his friends, commenced yelling and jumped off of the bed of the truck. He attempted to enter the truck, but upon touching the door of the truck he, too, became a conduit for the electricity. It is obvious that Wilhite intended to drive the truck away from the power lines but was unable to do so. The Pinson boys and Wilhite were all electrocuted on the spot.
The parents of each of these young men, all of whom were minors, filed suit for damages. The Pinsons originally sued Wilhite who filed a third complaint against First Electric Cooperative Corporation, the appellant. Subsequently, the Pinsons joined in the complaint against the appellant. The claims against Wilhite were settled prior to trial. The two cases against appellant were consolidated. The jury returned verdicts against the appellant in favor of each of the plaintiffs’ heirs and estates: in the amount of $120,000 for Lew Wilhite’s heirs and estate; $101,000 for Ricky Pinson’s heirs and estate; and, $101,000 for David Pinson’s heirs and estate.
The only evidence of negligence presented against the appellant was the failure to set a reclosure on the power line at 140 amps instead of the 200 amps which was used at the time of the occurrence. So far as the record is concerned, the appellant was not alleged to be negligent in any other respect. The evidence indicates that a reclosure works in a similar manner as how an average person considers a circuit breaker to work. If the fault or drag had reached 200 amps, the reclosure would have opened within one second of such contact. This would cut off the electricity flowing at that particular point. It would cut off for one third of a second, then come back on and stay on, or reclosed, 10 seconds before tripping again. It would then remain off for 15 seconds and come back on for 10 seconds. After tripping the third time it would remain locked out until it was physically reconnected at the power station. There is some dispute as to whether or not the pole the boys were holding was touching the ground. If it were, it would have created enough “fault” on the line to cause the reclosures to cut off the electricity for a fraction of a second. There is no dispute that Lew Wilhite was on the back of the truck, where he was insulated from the electricity, for more than a second after the boom contacted the power line. The electricity caused the truck to become so charged that flames were reaching from the truck to the ground which caused the tires on the vehicle to catch fire and blow out. When this occurred, the rims on the truck came in contact with the ground and at that time the boom separated from the power line to which it had been attracted.
The appellees contend that it was the duty of the appellant to keep the reclosure on the lowest possible setting allowing appellant to continue providing service to its customers. It is undisputed that the appellant’s ability to deliver electricity would not have been impeded at a setting of 140 amps. Neither is it disputed that the actual setting was at 200 amps. If the pole had contact with the ground while the boom was still in contact with the live overhead current, the “fault” created would exceed 140 amps. Testimony indicated such a connection could generate up to 1,000 amps. It appears reasonable that the “fault” would have, no doubt, exceeded the 200 amp setting. In fact, when the wheels of the vehicle contacted the ground, the boom and the power line separated allowing the power line to swing some eight inches back away from the boom. It seems logical that the reclosure activated at that time and caused a brief interruption of the current which allowed the boom and the wire to disengage. The testimony indicated that a human body would place at the most about 71/2 amps on the power line. Therefore, if all three of the decedents had contacted the power line simultaneously, directly or indirectly, the fault or amps would not be more than 22 1/2. This is far below the level it would have taken to open the reclosure if it had been set at 140. It is possible that the reclosure did not disconnect until the drain was well in excess of 200 amps. It does not make any difference how much “fault” it would have taken to trigger the reclosure because we find as a matter of law that the acts of the appellant in keeping the 200 amp reclosure in service were neither negligence, nor the proximate cause of this most unfortunate and regrettable occurrence.
Foreseeability is a necessary ingredient of actionable negligence in Arkansas. Dollins v. Hartford Accident & Indemnity Co., 252 Ark. 13, 477 S.W.2d 179 (1972); North Little Rock Transportation Co. v. Finkbeiner, 243 Ark. 596, 420 S.W.2d 874 (1967); Collier v. Citizens Coach Co., 231 Ark. 489, 330 S.W.2d 74 (1959); and Hill v. Wilson, 216 Ark. 179, 224 S.W.2d 797 (1949). We have said: “Conduct becomes negligent only as it gives rise to appreciable risk of injury to others ...” Dollins. Also, we held that there is no negligence in not guarding against a danger which there is no reason to anticipate. North Little Rock Transportation Co. In the case of Durfee v. Dorr, 123 Ark. 542, 186 S.W. 62 (1916), we held that the keeper of a hospital “.. . is liable for damages if he fails to perform some duty which he owes to the patient and the patient is injured as a result of this failure.” We have a similar question before us in the present case. The question presently to be considered is whether the appellant had a duty to keep the reclosure switch at the lowest possible setting. There is a duty on the part of one in charge of a dangerous instrumentality to protect against danger if he knew or should have known that the situation was dangerous. North Little Rock Transportation Co. However, the evidence indicated that the higher setting of the reclosure in no manner increased the risk of harm to the decedents. There was no foreseeability that a boom would contact the power lines which were more than twenty feet above the ground.
The evidence in this case simply does not support the jury’s verdicts. Conjecture and speculation, however plausible, cannot be permitted to supply the place of proof. Glidwell, Admr. v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S.W.2d 4 (1948). We stated in Kapp v. Sullivan Chevrolet Co., 234 Ark. 395, 353 S.W.2d 5 (1962), that judgments based on speculation and conjecture will not be allowed to stand. We believe the jury verdicts in this case were based upon conjecture and speculation. Therefore the cases are reversed and dismissed.
Reversed and dismissed.
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Frank Holt, Justice.
The appellant was charged with capital felony murder. Ark. Stat. Ann. § 41-1501 (Repl. 1977). At his first trial he was convicted and sentenced to death by electrocution. We reversed and remanded. Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981). On retrial the appellant was convicted and sentenced to life imprisonment without parole. Hence this appeal. We affirm.
The state’s theory of the case was that the appellant went to the office of a business firm in Newport, where he had recently worked, and forced a female bookkeeper to write a check for $500 and one for $1,000, based upon a fictitious time card. He then took her to a remote location where he fatally shot her.
The appellant first contends for reversal that the trial court erred in excusing venireman George Gibson for cause. Gibson repeatedly stated that he would not vote to convict and would not impose the death penalty based on circumstantial evidence. It is apparent that he was confused as to the meaning of the phrase “circumstantial evidence”; but it is clear also that, as the trial court noted, his confusion was such that he would not have made a good juror for anyone. The trial court easily could have determined from Gibson’s statement that he would not listen to the evidence with an open mind and decide in accordance with the court’s instructions, even though, at one point in the long colloquy, he affirmed that he could do so. The qualification of a juror is within the sound judicial discretion of the trial court, who has an opportunity to observe the veniremen that we do not have, and the trial court will not be reversed unless the appellant demonstrates an abuse of discretion. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1981); Satterfield v. State, 252 Ark. 747, 483 S.W.2d 171 (1982). We find no abuse of discretion here.
The appellant argues that the trial court erred in failing to excuse for cause venireman Clarence Davis. The appellant excused Davis peremptorily. Although he later exhausted his peremptory challenges, the record does not reflect that any juror was seated, or forced upon him, whom he would have excused if he had been entitled to another peremptory challenge. Consequently, this issue may not be raised on appeal. Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982); and Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).
Appellant insists that he was restricted in questioning venireman Bill Morgan concerning his views on the death penalty. However, since the appellant did not receive the death penalty, this issue is mooted. Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980). Further, the fact that the appellant here used a peremptory challenge when further examination might have revealed ground for challenge for cause is not a basis for reversal where the record does not show that a juror was forced upon him or seated whom the appellant would have challenged. Hill v. State, supra; and Conley v. State, supra.
The appellant next argues that the trial court erred in allowing the prosecuting attorney to pose hypothetical questions on circumstantial evidence to the prospective jurors, citing Turner v. State, 171 Ark. 1118, 287 S.W. 400 (1926). Turner recites the general rule that hypothetical questions are not permissible where their evident purpose is to commit the jury in advance to a certain decision based on a state of facts expected to be proven at trial. However, there we held a single hypothetical question complained of was proper. There the question was designed to ascertain whether the prospective jurors would convict if the evidence against the defendant came in testimony from a woman of “unsavory reputation.” Here, the questioning was designed to discover prejudice or bias with respect to a certain type of evidence; i.e., circumstantial evidence. We hold that prospective jurors may not be questioned with respect to a hypothetical set of facts expected to be proved at trial and thus commit the jury to a decision in advance, but that they may be questioned, as here, about their mental attitude toward certain types of evidence, such as circumstantial evidence. Cf. Fauna v. State, 265 Ark. 934, 582 S.W.2d 18 (1979); Griffin v. State, 239 Ark. 431, 389 S.W.2d 900 (1965). Here, the appellant does not refer to any specific hypothetical questions based on the facts to be proved at trial.
The appellant asserts that the trial court erred in not declaring a mistrial and quashing the j ury panel when it was called to the court’s attention that, contrary to the court’s instructions, some members of the jury panel had discussed the case among themselves or with other persons while waiting to be examined for jury duty. Therefore, he was denied the right of a fair and impartial trial. It appears that eleven jurors had been selected when this information came to the trial court’s attention. As requested, the trial court called in the remainder of the panel and admonished them again about discussing the case. The twelfth juror was then selected and accepted by the appellant without challenge. During the jury selection numerous jurors were excused because they had formed an opinion as to the appellant’s guilt. However, no juror was seated who did not affirm his or her ability to decide the case in accordance with the evidence. As we said in Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982):
. . . The Court holds that there is no requirement that jurors be totally ignorant of the facts involved: ‘It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented at court.’
Here, we certainly cannot say that the court abused his discretion in refusing to declare a mistrial or quash the jury panel.
The appellant urges that the trial court erred in admitting the appellant’s oral statement into evidence. The appellant was advised of his Miranda rights before being questioned by a police officer who was driving a vehicle transferring appellant from the White County to the Jackson County Jail. The uncontradicted testimony of both officers, who were in the vehicle at the time of the appellant’s brief statement, was that he was apprised of his Miranda rights and that his statement was freely and voluntarily given. The appellant stated to them that he understood his rights, answered a few questions and then invoked his right not to answer further questions without consulting an attorney. The questioning then ceased and was not renewed. Based upon our independent review of the evidence, we cannot say that the trial court’s finding that appellant’s statement was freely and voluntarily made is clearly against the preponderance of the evidence. Brown v. State, 276 Ark. 20, 631 S.W.2d 829 (1982).
Appellant asserts that the trial court erred in allowing the introduction of fingerprintevidence without an adequate foundation. Appellant’s fingerprints were found both on a time card in the office where the victim worked and on her automobile. He argues that the state did not exclude the possibility that appellant’s fingerprints could have been placed on these objects at a time other than that of the offense. He relies upon U.S. v. Fossen, 460 F.2d 38 (4th Cir. 1972); U.S. v. Corso, 439 F.2d 956 (4th Cir. 1971); State v. Hayes, 333 So.2d 51 (Fla. App. 1976); State v. Scott, 296 N.C. 519, 251 S.E.2d 414 (1979). However, none of these cases dealt with the admissibility of fingerprint evidence; rather they dealt with the sufficiency of the evidence to sustain a conviction where that was the main evidence against the defendant, and there was no evidence excluding the possibility that the fingerprints were placed on the objects at a time other than that of the crime. See U.S. v. Harris, 530 F.2d 576 (4th Cir. 1976). Further, here there was evidence that a ficitious time card, bearing appellant’s fingerprints, was found in the victim’s office after the victim was forced to write the company checks and then was abducted and slain. The car bearing appellant’s fingerprints on the exterior belonged to the victim, who had driven the car, as was her custom, to her place of employment. The car had been washed a few days preceding the murder. A witness observed it being driven and abandoned by a black man on the day of the murder. Appellant is black. A witness, who was with the appellant when he cashed the checks, identified appellant as the person who endorsed and cashed them. It is uncontradicted that the prints were those of appellant. In the circumstances, the fingerprints were admissible and the weight to be given them was a matter for the jury. United States v. Bonds, 526 F.2d 331 (5th Cir. 1976).
In a subsidiary argument the appellant contends that the officer who lifted the fingerprints and testified at trial was not properly qualified. The officer testified that he lifted fingerprints as a regular part of his duties as a detective and that he had received training in fingerprint lifting. The trial court has wide discretion whether to qualify a witness as an expert, and we will reverse the exercise of that discretion only if it is shown to be manifestly wrong. Robinson v. State, 274 Ark. 312, 624 S.W.2d 312 (1981). Further, Uniform Rules of Evidence, Rule 702, provides that a witness is qualified as an expert “by knowledge, skill, experience, training, or education.” Here, we cannot say that the trial court abused its discretion.
The appellant contends that the trial court erred in refusing to declare a mistrial in connection with the defendant’s Fifth Amendment right against self-incrimination. The alleged error occurred during the direct examination by the prosecution of Deputy Gayle, a police officer present at the time of the statement given by the appellant to another officer while appellant was being transferred from Searcy to Newport. The colloquy was as follows:
Q. Did Mr. Hobbs [appellant] make a voluntary statement to Captain Wilson on that date?
A. Yes, he did.
Q. Do you recall what he told Captain Wilson?
A. He told Captain Wilson that Cub Peel had something to do with the death of Marsha Bonds, and that — Gary asked him about his car. He said his car broke down somewhere around Texarkana. After that, he made the statement about Cub Peel. Then, he said, ‘I don’t want to say anymore, until after I talk to my lawyer.’
Q. Okay.
At this point counsel for appellant moved for a mistrial based upon the witness’ response that appellant wanted a lawyer before saying anything further. The trial court denied the motion for mistrial but instructed the jury to disregard the statement that appellant had wanted to talk with an attorney and to give it no consideration.
The appellant argues that the admonition to the jury was insufficient to cure the prejudice and that such comment by the witness requires a mistrial since it imparts to the jury an impression of guilt. He relies on Baker v. U.S., 357 F.2d 11 (5th Cir. 1966); and United States v. Kroslack, 426 F.2d 1129 (7th Cir. 1970). Both cases held that the Fifth Amendment right against self-incrimination was violated where a witness testified that the accused claimed his right to remain silent until he could speak to an attorney. However, both cases are distinguishable. In Baker, unlike here, the testimony was first developed outside the hearing of the jury, after which it was deliberately presented. In Kroslack, the testimony was elicited twice. The court admonished the jury to disregard it the first time but failed to do so after it was elicited the second time.
In any event, those cases are no longer controlling since the decision of Doyle v. Ohio, 426 U.S. 610 (1976). There the two defendants were arrested for selling marijuana and remained silent after being given their Miranda warnings. Both testified at trial that the undercover agent whose work had led to their arrest had framed them. On cross-examination the prosecutor repeatedly asked why they had not told the frameup story to the arresting officer at the time of the arrest. The Supreme Court did not hold that this line of questioning violated the Fifth Amendment right against self-incrimination, but the Supreme Court did hold that the use for impeachment purposes of an accused’s silence, at the time of arrest and after receiving Miranda warnings, violated the due process clause of the Fourteenth Amendment. The court reasoned:
[Wjhile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.
Doyle v. Ohio, supra. However, in the concluding paragraph of the Doyle opinion, the court left open the possibility that in some cases testimony that the accused had claimed his right to remain silent would constitute harmless error. Doyle v. Ohio, supra. Therefore, Doyle requires a case-by-case application and allows a finding of harmless error.
Subsequently, the federal Courts of Appeal, including the circuits that decided the cases relied upon by the appellant, have not hesitated to find that such error is harmless. Even in Kroslack, upon which appellant relies, it was recognized that “the violation of defendant’s constitutional right is of greater significance in view of the thinness of the evidence against him in this record.” Subsequent to Doyle, the Seventh Circuit, which decided Kroslack, has affirmed at least two convictions where testimony indicated that the accused had claimed his right to remain silent or speak to a lawyer because the testimony constituted harmless error in view of the overwhelming evidence. United States v. Muscarella, 585 F.2d 242 (7th Cir. 1978); Jacks v. Duckworth, 651 F.2d 480 (7th Cir. 1981). The Fifth Circuit, which decided the Baker case, relied upon by the appellant, has found testimony to be harmless error in numerous cases where a witness testified the accused claimed his Fifth Amendment right. See United States v. Davis, 546 F.2d 583 (5th Cir. 1977); Chapman v. United States, 547 F.2d 1240 (5th Cir. 1977); United States v. Sklaroff, 552 F.2d 1156 (5th Cir. 1977); Stone v. Estelle, 556 F.2d 1242 (5th Cir. 1977).
Illustrative of the court’s reasoning in those cases is the following quotation from United States v. Davis, supra:
The instant case does not present a prosecutorial focus — by repetitive questioning — on a defendant’s silence, as in Doyle. Nor can we say that the comments, in the context of either the cross-examination of Davis or in the prosecutor’s closing argument, so ‘highlighted’ appellarit’s silence as to constitute prejudicial error ....
When read in the context of the entire cross-examination and closing argument, these remarks were not prejudicial to appellant, considering the overwhelming evidence of his guilt. See, e.g., Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L.Ed.2d 284 (1969). Therefore, we hold that the error, if any, was harmless.
See also United States v. Wycoff, 545 F.2d 679 (9th Cir. 1976); and Hayton v. Egeler, 555 F.2d 599 (6th Cir. 1977).
The foundation for the harmless error rule in cases involving federal constitutional rights is Chapman v. California, 386 U.S. 18 (1967). In Chapman it is stated:
We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. . . . We decline to adopt any such rule. . . . We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.
We conclude that the testimony by Deputy Gayle concerning the appellant’s request to speak to a lawyer before talking further was a violation of the due process clause of the Fourteenth Amendment to the United States Constitution, as in Doyle v. Ohio, supra. However, the error was, in the circumstances of this case, harmless. As in United States v. Davis, supra, here, there was no repetitive questioning to focus on the appellant’s silence, and there was no attempt to “highlight” the silence by argument. Furthermore, the sufficiency of the evidence is not questioned on appeal. Therefore, we do not reverse, considering the overwhelming evidence of guilt, even though the testimony constituted constitutional error.
The appellant’s final point is that the trial court erred in allowing testimony of other crimes and bad acts and in not declaring a mistrial. The state adduced evidence that appellant forced the decedent to write two checks payable to him — one in the amount of $1,000 and the other for $500 — based upon a fictitious time card which was found in her office. A witness testified that he was with the appellant on the day of the crime at the time appellant cashed two checks, one at a liquor store, where he bought whiskey, and the other at a bank. The appellant then paid him $100 to transport him to Little Rock for the purpose of catching a 5:30 p.m. flight to Mexico to buy some marijuana. The court admonished the jury to disregard any reference to the marijuana. He, further, testified that during the day appellant bought the favors of a prostitute and paid $500 for a pound of marijuana. The appellant did not take the flight to Mexico, because he might be found in possession of marijuana. Instead, the witness transported him back to Newport. There, appellant offered the witness $600 to return him to Little Rock. On this second trip this witness and two others, who were passengers, testified that appellant gave the woman passenger $30 to buy a car for him for which he paid $300. One of these witnesses testified that he was offered $30 or $35 to accompany him on the second trip to Little Rock and that he saw appellant with $500 or $600. The murder occurred in the early morning, the first trip to Little Rock in the early afternoon, and the second trip later the same day. These witnesses left appellant in Little Rock where he had purchased the car. This same automobile was found four days later headed west and abandoned near Texarkana, Arkansas. He was arrested in California about a month after the murder. There was also evidence that he had attempted to escape from jail.
Appellant argues that the evidence with reference to the marijuana, the prostitute, buying whiskey, and his attempt to escape from jail had no independent relevancy and, therefore, violated Rule 404 (b), Uniform Rules of Evidence, which precludes evidence of other crimes to prove the character of a person in order to show that he acted in conformity therewith. Appellant overlooks, however, that part of the rule which makes evidence admissible for the purpose of showing a motive, opportunity, intent, preparation, plan or knowledge by the accused. The state is entitled to introduce evidence, as here, showing all the circumstances connected with the crime, even if other criminal offenses are thereby brought to light. Russell and Davis v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980); Murphy v. State, 255 Ark. 90, 498 S.W.2d 884 (1973). We have held that evidence of an attempted escape from confinement is a relevant circumstance to be considered. Centeno v. State, 260 Ark. 17, 537 S.W.2d 368 (1976).
The appellant, also, argues that the evidence complained of should have been excluded under Rule 403, because its probative value is substantially outweighed by the danger of unfair prejudice. Since the rule states that the evidence “may” be excluded, this is an area in which the trial court has wide discretion. Price v. State, 267 Ark. 1172, 599 S.W.2d 395 (Ark. App. 1980). We find no abuse of discretion here.
Kathy Davis was called as a witness for the state. The appellant objected on the ground that she was the appellant’s wife and could not testify as to confidential communications. The trial court instructed the prosecutor not to ask questions concerning confidential communications. During the course of Davis’ testimony, she testified that she lived with the appellant. The appellant’s counsel objected but did not state the grounds of his objection. On appeal he argues that this was prejudicial because the appellant is black and Davis is white. Since this ground for objection was not presented to the trial court, it cannot be raised on appeal. Rule 103 (a) (1), Uniform Rules of Evidence; Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979).
We have examined the record as is required by Arkansas Supreme Court Rule 11 (f), Ark. Stat. Ann. Vol. 3A (Repl. 1979), for other objections decided adversely to appellant and find none that constitute prejudicial error. Since we affirm we do not deem it necessary to discuss the state’s cross-appeal concerning the court’s ruling on evidentiary matters.
Affirmed.
The prosecutor had previously asked the other officer, Captain Wilson, the same question, and Wilson did not mention that the appellant had invoked his right to remain silent. Neither was there any other reference during the trial to appellant invoking his right to remain silent.
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Per Curiam.
We advance and affirm this case because the appeal is taken solely for the purpose of delay. The Court of Appeals has certified the case to this Court pursuant to Rule 29 (1) (c).
Pursuant to ARCP Rule 24 (a) (2) the taxpayers are allowed to intervene in this cause to protect their interests.
In 1965 the City of Lonoke issued Amendment 49 General Obligation Industrial Development Bonds in the amount of $130,000.00. The levying ordinance provided that the purpose for the issuance of the bonds was to assist in the location of an industry in Lonoke. A levy of five mills per dollar on the assessed valuation of all taxable real and personal property in the City was made and collection of the levied tax was commenced.
By November, 1980, the bonded indebtedness had been retired and the City, by this tax, had collected a surplus of $70,869.51.
A taxpayers’ suit was heard by the Chancery Court of Lonoke County and on January 6,1981, a decree was entered which ordered: “The City of Lonoke should, with the least possible delay, refund the taxpayers their proportionate share, less the expense of distributing same, all of the taxes collected in excess of the funds necessary to retire the bonds, which sum is $70,869.51.”
No motion for a new trial was filed within ten days after the entry of the judgment. Rule 4, Rules of Appellate Procedure.
No motion for modification or vacation was filed within 90 days after the entry of the jdugment. ARCP Rule 60 (b).
On December 30, 1981, almost a full year after the judgment was entered, the City filed a motion for rehearing. ARCP Rule 60 (c) provides eight grounds for the setting aside of a judgment after the expiration of 90 days after the filing of the judgment. None of those grounds was pleaded.
On June 7,1982, the trial court entered its order denying the motion for rehearing and on June 24,1982, the City filéd its notice of this appeal. The notice of appeal designates the entire record of proceeding for review.
A motion to advance and affirm can be granted on the ground that the appeal is prosecuted solely for the purpose of delay and when the absence of error is apparent from a short and cursory examination of the record. Ark. Stat. Ann. § 27-2141 (Repl. 1979); Vaught v. Green, 51 Ark. 378, 11 S.W. 587 (1888). Here the untimeliness of the appeal is obvious from a cursory examination of the record. It is taken merely for the purpose of delay. The excess tax collections should be immediately refunded to the taxpayers. Therefore, this case is ordered advanced and affirmed on its merits. Costs are assessed against appellant.
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Richard B. Adkisson, Chief Justice.
The sole issue presented in this appeal is whether the Pulaski County Circuit Court has personal jurisdiction over appellee, Al Spain and Associates, Inc. under the Arkansas long arm statute, Ark. Stat. Ann. § 27-2502 (Repl. 1979), as limited by the due process clause of the 14th Amendment.
Appellee, a Florida corporation, defaulted on a noncancelable lease agreement between it and appellant, SD Leasing, Inc., an Arkansas corporation, and appellant filed suit in Arkansas to recover the balance due. The trial court granted appellee’s motion to dismiss for lack of personal jurisdiction. On appeal, we reverse.
The lease agreement between appellant and appellee concerned a Minolta copier machine which was originally owned by Copytronics, Inc., a corporation located in Florida. Appellant purchased the machine from Copytronics and then leased it to appellee. Negotiations for the lease of the machine took place in Florida where appellee signed an original lease form from SD Leasing and filled out a customer credit check sheet. Copytronics mailed these documents along with an invoice with the price of the machine to appellant. Upon receipt of these documents, appellant reviewed the lease and ran a credit check on appellee. Appellant then approved and accepted the lease and paid Copytronics for the machine. Copytronics delivered the machine to appellee and appellant called appellee to make certain the machine had been installed. Appellant also mailed appellee a copy of the executed lease, a coupon book for monthly payments, and an explanatory letter.
Appellee made several payments pursuant to the lease agreement, but then notified appellant by mail that the company was going out of business because of financial difficulties. No more payments were made and Copytronics subsequently picked up the copier for appellant.
Ark. Stat. Ann. § 27-2502 (Repl. 1979) provides that a court may exercise personal jurisdiction over a person as to a cause of action arising from that person’s “transacting any business in this State. ’’ We have held that the purpose of this statute is to expand our state’s personal jurisdiction over nonresidents, within the limits permitted by the due process clause of the United States Constitution. Nix v. Dunavant, 249 Ark. 641, 460 S.W.2d 762 (1970).
International Shoe Co. v. Washington, 326 U.S. 310 (1945) set out the due process requirements for personal jurisdiction: In order for a valid judgment to be rendered against a nonresident defendant not served within the forum state, due process requires that “certain minimum contacts” exist between the nonresident and the state “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” A single contract can provide the basis for the exercise of jurisdiction over a nonresident defendant if there is a substantial connection between the contract and the forum state. See McGee v. International Life Ins. Co., 355 U.S. 220 (1957).
Here, there were sufficient minimum contacts to meet the International Shoe and McGee standards. Although appellee executed the lease in Florida, it was then mailed to appellant in Arkansas where it was reviewed, approved, and finally accepted. Appellee mailed its monthly payments directly to appellant in Arkansas as well as two memos informing appellant it was going out of business. One of the memos stated that appellee had telephoned appellant to inform appellant of its financial difficulties but no one had returned its call.
Furthermore, we note that Ark. Stat. Ann. § 85-1-105 (Add. 1961) states that when a transaction bears a reasonable relation to this state and also to another state, “the parties may agree that the law either of this state or of such other state... shall govern their rights and duties.” Here, the lease agreement specifically provided that the lease “shall be governed by and construed under the laws of the State of Arkansas. ’ ’ While the fact that the parties so agreed does not give an Arkansas court personal jurisdiction in and of itself, it does provide another contact with this state which goes to satisfy the “minimum contacts” requirement of International Shoe, supra.
In addition to these substantial contacts with the State of Arkansas, appellee subjected himself to personal jurisdiction of the Arkansas courts by expressly agreeing in the lease that:
... in the event of default... he will consent to and be subject to the jurisdiction of the courts of the State of Arkansas to enforce the terms of this lease.
Such a clause is enforceable if it is determined to be fair and reasonable. See Leflar, American Conflicts Law, 115 (1968); Reeves v. Chem Industrial Co., 262 Or. 95, 495 P.2d 729 (1972); Central Contracting Co. v. C. E. Youngdahl & Co., 418 Pa. 122, 209 A.2d 810 (1965). Certainly this provision is fair and reasonable under the circumstances of this case.
Because there were sufficient “minimum contacts” between appellant and Arkansas and because of this express agreement, it was error for the trial court to dismiss appellant’s complaint for lack of personal jurisdiction over appellee.
Reversed.
George Rose Smith and Dudley, JJ., dissent.
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Darrell Hickman, Justice.
This is an appeal from an award of $107,211.60 to Dale Frazier, the appellee, for personal injuries he suffered when he was run over by a tractor-trailer truck in Mississippi County, Arkansas. Leonard R. Simmons, the driver, and Ralph Walker, Inc., the owner of the truck, appeal arguing four errors were committed. Simmons died before the trial of natural causes. We affirm the judgment.
It is undisputed that Frazier was hitchhiking on Interstate Highway 55 in July of 1979. He was enroute from Montana to Meridian, Mississippi, where his parents lived. His last ride let him out at about 10:00 p.m. on July 3rd by a weigh station near Blytheville, Arkansas. Frazier sat down on the nine foot wide shoulder with his suitcase and duffle bag to await another ride; while there he fell asleep. At about 1:30 a.m., Simmons, the driver of the rig that hit Frazier, passed the exit to the weigh station by mistake. When Simmons recognized his error he pulled over to the side of the road and began to back the tractor-trailer rig back some six or seven hundred feet to the exit. As he was doing so, he ran over Frazier. Simmons immediately pulled the truck off Frazier. A state policeman testified that there was blood two feet and two inches from the edge of the traveled portion of the interstate and determined that had to be the point of impact. There was evidence that the area was well lighted.
The damage to Frazier’s left thigh was extensive. He suffered an avulsion, or tearing away, of the flesh. He was immediately taken to a hospital in Memphis where he remained for thirty-four days. A skin graft was taken from his right upper thigh and an attempt was made to fill the indention made by the avulsion to his injured thigh.
The jury was given a series of instructions regarding the duties of pedestrians and drivers and it is argued that those instructions were contradictory and confusing. It is not argued that the instructions were inherently wrong but were wrong as applied to this case. First, the court gave AMI Civil 2d, 909:
Streets and highways are available for the use of both pedestrians and motorists. The driver of a motor vehicle must anticipate the presence of pedestrians on streets and highways, and use ordinary care to avoid injuring them. Pedestrians are required to anticipate the presence of motor vehicles and use ordinary care for their own safety.
Next, the court gave, at the appellants’ request, an instruction based on AMI 903A which reads:
There was in effect in the state of Arkansas at the time of the occurrence, statutes which provide that it is unlawful for any person on controlled access facilities to drive any vehicle except in the proper lane provided for that purpose and in the proper direction. There was in force in the state of Arkansas other statutes which provided, one, the definition of pedestrian is any person afoot; two, street or highway, the entire width between property lines of every way, place or whatever nature when any part thereof is open to the use of the public as a matter of right for purposes of vehicular traffic.
The definition of roadway, that portion of a highway improved, designed or ordinarily used for vehicular traffic.
Pedestrian soliciting rides. No person shall stand in a roadway for the purpose of soliciting a ride from the driver of any private vehicle.
A violation of these statutes, although not necessarily negligence, is evidence of negligence to be considered by you along with all the other facts and circumstances in this case.
The appellants argue that these two instructions are confusing because the first instruction tells the jury that a pedestrian has a right to use the highway, yet the second tells the jury that a pedestrian may not stand in a roadway to hitchhike. The appellants contend that AMI 909 should not have been given at all, because it is irreconcilable with AMI 903A. It is pointed out by the appellants on appeal — it was not brought out below — that the Arkansas Highway Commission has formulated a special rule which prohibits pedestrians from using a controlled access highway at all.
That statement is contained in the Minute Order No. 64-144 of May 27, 1964, and reads:
. . . [I]t is hereby declared to be a policy of this Commission that the use of controlled access state highways in the state by parades, pedestrians, bicycles and other non-motorized traffic shall be prohibited. The Director of Highways is directed to erect official signs on the roadways where such regulations are applicable.
The problem with the appellants’ argument is that they did not offer an instruction which recited the Highway Department’s Minute Order so that the jurors would be aware of the Highway Department’s policy regarding interstate highways. The trial court was not wrong in failing to give an instruction as to a special rule regarding controlled access highways because it was not presented with such an instruction. No doubt, since this was a case involving an interstate, the judge would not have given AMI 909 if it had been demonstrated it was contrary to a rule regarding controlled access highways. Actually the appellants are saying that AMI 909 conflicts with the Highway Department’s rule. That may be true, but the trial court was not presented with the argument. The two instructions that were given are not irreconcilable. Read together, the instructions tell the jury that while a pedestrian has the right to use a highway, he cannot stand in the highway to solicit a ride — and common sense dictates one cannot sleep on the highway or shoulder and be blameless if there is an accident.
It is also argued that AMI 901, which details a driver’s duty to keep a lookout, further confused the jury because it put undue emphasis on the duty of the driver and, thus, it was implied that a pedestrian does not have a corresponding duty. But another instruction gave the duty of both the driver and pedestrians.
As appellants concede, the instructions themselves were not wrong and we are not convinced that the jury was so confused by the instructions, or that they were so contradictory, that it could not arrive at a fair verdict regarding the duties and responsibilities of the respective parties. The j ury found that Frazier was guilty of 10% negligence in causing the accident and the driver 90%. Therefore, the jury did find that Frazier, as a pedestrian, had a duty which he breached.
The appellants offered an instruction on assumption of risk. The court declined to give it and the appellants argue that was prejudicial error. We do not agree. Because Arkansas is a comparative fault state, assumption of risk is not a complete bar to recovery but is simply a matter to be considered in deciding fault. See Ark. Stat. Ann. § 27-1764 (Repl. 1979); AMI Civil 2d, 612 Comment (Supp. 1981). It is a harsh doctrine and has been approved only in limited situations. Compare with Bugh v. Webb, 231 Ark. 27, 328 S.W.2d 379 (1959). This was nota situation that required the instruction because there was no evidence Frazier actually knew and appreciated the specific danger that caused his injury. That danger in this case was Simmons backing his truck along the shoulder of the interstate. No doubt it was negligence for Frazier to sleep on the shoulder, and the jury so found. But we cannot say, as a matter of law, he assumed the risk of Simmons’ action.
The appellants also argue that the award was excessive and that Frazier was guilty of at least 50% of the negligence, which was the cause of the accident, as a matter of law. Both issues were within the province of the jury and we will not substitute our judgment for theirs. Frazier’s injuries were severe and permanent; he nearly lost his leg. The evidence reflected that he suffered a good deal of pain and that he has a permanent, large, and deep scar on his left thigh which continues to cause him pain, suffering, and discomfort and some diminution of his ability to work. His medical expenses were over $5,000 and we cannot say that the verdict shocks our conscience. Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981); Grandbush v. Grimmett, 227 Ark. 197, 297 S.W.2d 647 (1957).
Nor can we say as a matter of law that Frazier was guilty of negligence which was equal to or more than that of the driver of the rig. As we have indicated, Frazier was no doubt at fault, but whether he was more at fault than a truck driver who backed a semi-tractor trailer rig six or seven hundred feet at night on the shoulder of an interstate highway, was a question for the jury. The jury’s decision will not be overturned unless there is no substantial evidence at all to support the verdict. St. Louis Southwestern Railway Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 444 (1977).
Affirmed.
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Richard B. Adkisson, Chief Justice.
The Quorum Court of Randolph County passed Ordinance No. 88 on September 3, 1981. The ordinance was duly published one week later. Purporting to act pursuant to Amendment 7 of the Arkansas Constitution, appellee, Ken Noce, filed a referendum petition on the ordinance in the county clerk’s office on December 1, 1981. This appeal is from a decree of the Randolph County Chancery Court holding the petition was properly filed even though filed with the county clerk later than 60 days after the ordinance was passed and published.
Ark. Stat. Ann. § 17-4011.6 (Repl. 1980) sets the time for filing a referendum petition:
(b) Referendum Petitions. All petitions for referendum on county measures must be filed with the County Clerk within sixty (60) calendar days after passage and publication of the measure sought to be repealed.
Appellees argue that this statute is unconstitutional because Amendment 7, which states that the time for filing is from 30 to 90 days, is self-executing. We disagree. This statute was passed as permissible enabling legislation for paragraph three of the Local Petitions section of Amendment 7 of the Arkansas Constitution, which provides:
General laws shall be enacted providing for the exercise of the initiative and referendum as to counties. ... In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty days nor more than ninety days before the election at which it is to be voted upon; for a referendum petition at not less than thirty days nor more than ninety days after the passage of such measure by a municipal council; . . .
This section clearly anticipates that general laws may be enacted fixing a time for filing a referendum petition at a specific time between 30 and 90 days. By enacting Ark. Stat. Ann. § 17-4011.6, the legislature fixed the time at 60 days which was a lawful exercise of its power.
Appellees also argue that they did not have to comply with Ark. Stat. Ann. § 17-4011.6 because it was repealed by Ark. Stat. Ann. § 17-4003.1 (Supp. 1981):
Any ordinance enacted by the governing body of any county, city or town in the State may be referred to a vote of the electors of such county, city or town for approval or rejection in the manner and procedure prescribed in Amendment No. 7 to the Arkansas Constitution and laws enacted pursuant thereto for exercising the local initiative and referendum, and the manner and procedure prescribed therein shall be the exclusive method of exercising the initiative and referendum regarding such local measures. (Emphasis supplied)
This statute did not repeal Ark. Stat. Ann. § 17-4011.6 (b), but specifically preserved all previously enacted enabling legislation, including Ark. Stat. Ann. § 17-4011.6.
Since the referendum petition was not timely filed, the election held pursuant to the order of the trial court was invalid.
Reversed.
Dudley, J., not participating.
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John I. Purtle, Justice.
The appellant was tried before a petit jury in Phillips County and convicted of the offense of rape as defined by Ark. Stat. Ann. § 41-1803 (Repl. 1977). Sentence was affixed at a term of life imprisonment.
On appeal the appellant urges three grounds for reversal: (1) the trial court erred in denying the defendant’s motion in limine and allowing into evidence defendant’s prior convictions; (2) the trial court erred in denying the defendant’s motion to dismiss the charge of rape, or in the alternative, to reduce the charge of rape to the charge of sexual abuse in the first degree; and, (3) the trial court erred in not instructing the jury as to the applicable punishment pursuant to § 8 of Act 620 of 1981. None of the three grounds argued by the appellant amounted to prejudicial error and we affirm the proceedings in the trial court.
The facts reveal that the rape occurred in the victim’s home about 2:30 a.m. on December 11, 1980. The appellant alleged he intended to go into the victim’s house and get a little rest and was “ ... trying to get some of the alcohol and stuff out of myself.” He alleged he knocked at the door, then went to the window and kicked it in after which the victim opened the door. The victim insisted the door remained locked at all times and that he came to the window, kicked it in and entered through it. At one time appellant stated to the jury he was in front of the window when he noticed a monkey on his back and ended up kicking the window in. In any event, he entered the home without an invitation and proceeded to have sex with the victim, according to her testimony. He denied having intercourse with the victim and stated that he just felt of her private parts and then fell asleep. He admitted asking her about “having a little sex” with him and that he assisted her in taking off her undergarments. This clothing was presented to the police officer, and later introduced into evidence in a torn condition. She stated her panty hose and panties were not torn prior to the time that appellant entered her home. The only dispute in the facts is that the victim claimed she was raped and the appellant said he did not have intercourse at all with her. When the police came to the scene after being called by the victim’s daughter, they found the appellant sitting on the victim’s couch and brought him outside where he was observed by the victim. She had been unable to see him while he was inside because there were no lights on in that portion of the house. The victim stated there was no one else in the house except the person who had raped her. She observed the police bring the appellant out. Although she could not identify him from the observation she made at the time of the incident, she was able to identify him as the man brought out of her house by the police.
The victim stated she left after the assault and told her daughter who lived next door about the rape. She testified the appellant hit her on the side of the head when she yelled and also choked her. The daughter called the police who took the appellant into custody at the scene. The victim was taken to the police station later on the same date and made an incident report. The original report stated that someone had broken into her house and struck her. The initial report did not mention rape. However, the victim reported it immediately to her family and stated she thought she reported it to the police. In any event, the rape charge was added to the report a few days after the initial incident report. It is possible the victim, being 78 years of age, did not remember to tell the police about the entire circumstances of the incident when she arrived at the station. On the other hand, the officer may have simply failed to include it in his initial report. It makes no difference because the victim has consistently stated that she was raped at the time and place mentioned.
I.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION IN LIMINE AND ALLOWED INTO EVIDENCE PRIOR CONVICTIONS OF THE DEFENDANT.
The first point argued by appellant relates to the court overruling his motion in limine in which he sought to prevent evidence of prior convictions being introduced. The convictions in question had occurred 15 and 16 years prior to the charge for which appellant was being tried. The appellant attempts to exclude these convictions pursuant to the provisions of Rule 609 of Uniform Rules of Evidence which is as follows:
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten [10] years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.
The key words in the foregoing rule are “if a period of more than ten [10] years has elapsed since the date of the conviction or of the release.” The appellant admits that it has been less than ten years since he was last confined for the offenses for which he had been convicted. He had been sentenced to a term of ten years for burglary in March of 1965 and seven years for rape in September of 1965. He was paroled in 1969 which was revoked in 1973. He was again paroled in 1974 which was revoked in 1976at which time he served until his release in 1979. His last confinement was in 1979 and therefore clearly within the ten-year exclusion listed in Rule 609. We hold to the wording of the statute that this rule applies to the date of conviction or to the release from confinement, whichever is later. It does not matter that the conviction was more than ten years past if he last served time for that conviction within ten years of the time of trial for the subsequent criminal act.
At the pretrial hearing on the motion in limine the court ruled that the prior convictions were permissible pursuant to Rule 609. The court also ruled that the probative value of the evidence outweighed the possibility of prejudice to the appellant. The court specifically made the ruling separately as to each incident. Rule 609 concerns itself with the credibility of a witness who is offering testimony in the current case. The appellant insists that Rule 404 (b) prohibits the use of the evidence of the two prior convictions. Rule 404 (b) states:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
The foregoing rules serve two separate purposes. Thus a past conviction which would not be admissible under Rule 404, as evidence of other crimes, might be admissible under Rule 609 for the purpose of attacking the credibility of a witness. The trial court was required by our rules to make a determination of whether the probative value of this evidence outweighed its prejudicial effect. We cannot say that the trial court abused its discretion in this instance. Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980). Under one set of circumstances we have held that it was reversible error when the court failed to grant appellant’s motion to prevent evidence of a prior conviction on a charge of rape involving a young boy when the crime under consideration was also a charge of rape against a young boy. Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981). These matters must be decided on a case by case basis. We have allowed cross-examination of a defendant when the matter related to a prior conviction of the same nature as that for which he was being tried. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). In Rhodes, the instance was allowed pursuant to Rule 608.
II.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION TO DISMISS THE CHARGE OF RAPE, OR IN THE ALTERNATIVE, REDUCE THE CHARGE OF RAPE TO THE CHARGE OF SEXUAL ABUSE IN THE FIRST DEGREE.
This point amounts to an argument that the evidence was insufficient to support the verdict. In the factual statement we have set forth facts which very clearly indicate that this matter was a question for determination by the jury. Holding that the evidence was insufficient to support the verdict is equal to stating that there should have been a directed verdict at the close of all the evidence. We have many times stated that we view such matters in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Jones v. State, supra; Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977). In reaching this decision we are aware that the victim was unable to personally identify the appellant as the person who raped her. However, all of the circumstantial evidence clearly shows the appellant was the only other person present in her home at the time of the rape. We have previously held that circumstantial evidence can present a question for the jury and be the basis to support a conviction. Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974). We hold that the circumstantial evidence in this case was at least of a substantial nature and we find it is sufficient to support the verdict.
The second part of this argument is that the charge of rape should have been reduced to that of sexual abuse in the first degree. We cannot agree with this argument. We have many times held that the testimony of a victim need not be corroborated to prove the crime of rape. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). For the reasons previously stated we hold that there was sufficient evidence to support the conviction for rape and it was not error to fail to refuse to reduce the charge to sexual abuse in the first degree.
III.
THE TRIAL COURT ERRED IN NOT INSTRUCTING THE JURY AS TO THE APPLICABLE PUNISHMENT PURSUANT TO § 8 OF ACT 620 OF 1981.
The final point argued by the appellant is that the class Y felony should have been used instead of the class A felony which was in effect at the time of the commission of the crime. Act 620 of 1981 became effective in June of that year. The crime for which the appellant was tried was committed on December 11, 1980. The trial was held on July 28, 1981. The appellant argues that he should have been tried under the act which was in effect at the time of the trial. The only difference in the old law and the new law is that the new one provides that rape is a class Y felony and the punishment ranges from not less than 10 years nor more than 40 years, or life. In the class A felony law which was in effect at the time of the commission of the crime the penalty was not less than five years nor more than 50 years, or life. It is hard to understand how the appellant could have been prejudiced even if the wrong instruction had been given because the maximum punishment under the old and the new is life which is the sentence the appellant received. We have held previously that when procedures are changed, the law in effect at the time of the trial governed. On the other hand, when substantive law is changed, we have held that the trial is governed by the law in effect at the time of the offense. See Duncan v. State, 260 Ark. 491, 541 S.W.2d 926 (1976); and Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). Act 620 of 1981 changed the penalty provided for rape and also reclassified it from a class A felony to a class Y felony. The minimum sentence was raised from five to ten years. Therefore, we are of the opinion that the change was substantive and not procedural. Jennings v. State, 276 Ark. 217, 633 S.W.2d 373 (1982).
We have reviewed the transcript for other errors and can find no reversible error.
Affirmed.
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John I. Purtle, Justice.
The appellant was tried in Sebastian County, Arkansas, upon change of venue from Crawford County. He was convicted of capital felony murder and sentenced to death by electrocution. The appel lant argues 21 points for reversal in this appeal. We will discuss each of them in the body of this opinion. We do not find any of the points argued to constitute prejudicial and reversible error.
Kenneth Staton and his daughter, Suzanne Staton Ware, were murdered during the course of a robbery of their jewelry store on September 10,1980. On September 26,1980, the state filed an information against Damon Peterson, a/k/a Damon Malantino, and Richard Phillip Anderson charging them with capital felony murder. The appellant was arrested in Jacksonville, Florida, on an unrelated crime. While the appellant was still imprisoned in Jacksonville, Florida, he filed a demand for a speedy trial on the Arkansas charge and was returned to Crawford County shortly thereafter. At the time of his arraignment the information was amended to show his name as Eugene Wallace Perry, a/k/a Damon Peterson, a/k/a Damon Malantino. Trial counsel was appointed for the appellant. Upon motion the appellant was granted a change of venue from Crawford County to Sebastian County, Fort Smith District.
A photo line-up, consisting of six photographs, was displayed by investigating officers to several witnesses, some of whom identified the appellant from the photos. Appellant’s photograph irr the line-up was one from the waist up showing him to be in a hospital bed. The other pictures were all mug shots having solid backgrounds. Upon request of the appellant a line-up was conducted and viewed by five witnesses, all of whom identified the appellant. Counsel for appellant actively supervised the line-up and positioned the appellant in the number two position. Further details of the identification process will be described in the discussion of the points argued on appeal.
All of the evidence was circumstantial. Photographs were introduced showing the bodies of the decedents on the floor of the jewelry store. They were bound and gagged and each had been shot twice in the head. A considerable amount of blood was shown in the photographs. Also, several tags which were allegedly taken from items of jewelry in the store were introduced. These tags were obtained from a camp site on Beaver Lake and from a storage room in Fayetteville. Ruby Godwin was the only witness who placed the appellant in Van Burén on the date of the robbery. Other witnesses testified they observed the appellant, either before or after the date of the crime, at Beaver Lake, in Van Burén and Fort Smith as well as in Fayetteville.
I. THE COURT ERRED IN REFUSING A REQUEST FOR A SECOND CHANGE OF VENUE.
The appellant filed a timely motion for a second change of venue in which he insisted that the trial be removed from the Twelfth Judicial District to some place outside the primary news coverage of Fort Smith and Van Burén. The court could have granted a change of venue to any county adjacent to Crawford County, either inside or outside of the Twelfth Judicial District. Cockrell v. Dobbs, Judge, 238 Ark. 348, 381 S.W.2d 756 (1964). However, there was no request by the appellant for a change to any specific county other than Sebastian. In any event, the matter is without merit because the record clearly shows that the jury selected was unbiased. A change of venue lies within the discretion of the trial court. If the court determines that the appellant can receive a fair trial by an impartial jury, there is no prejudice regardless of the location of the trial. Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982). An examination of the record in this case reveals that each of the jurors stated they could give the appellant a fair trial and that they would be guided by the instructions of the trial court. Therefore, we do not find that under these circumstances the trial court abused its discretion.
II. THE COURT ERRED IN DENYING APPELLANT’S REQUEST FOR A HANDWRITING EXPERT AT STATE EXPENSE.
Again, this is a matter that lies within the discretion of the trial court. Ruiz and Van Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1979). The record indicates that certain writings were used for the purpose of showing that the appellant had used the name of Damon Peterson while he was in the Crawford County area. There was no attempt made to show that the writing on any particular items in evidence was actually the handwriting of the appellant. We have held that it is a matter within the discretion of the trial court in refusing to provide a defendant with an unnamed expert to rebut the state’s expert testimony evidence. Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982). In the present case the state did not use expert testimony to establish the handwriting as that of appellant. The appellant was linked to these items of evidence by identification testimony only. Several other witnesses identified the appellant as one known as Damon Peterson while he was in the area. Testimony concerning the evidence purportedly bearing the signature of Damon Peterson was received without objection thus this issue is precluded from review on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Under the facts presented under this argument we do not find that the trial court abused its discretion.
III. THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS IDENTIFICATION TESTIMONY.
We agree with appellant’s argument that the state may not use in-court testimony and identification by witnesses whose testimony has been tainted by unconstitutionally conducted or impermissibly suggestive procedures. Sims v. State, 258 Ark. 940, 530 S.W.2d 182 (1975). We have held that the judge must look to the totality of the circumstances in such cases to determine if there is a likelihood of misidentification. James & Elliott v. State, 270 Ark. 596, 605 S.W.2d 448 (1980). Reliability of evidence is the linchpin in determining its admissibility. Manson v. Brathwaite, 432 U.S. 98 (1977), and Matthews v. State, 275 Ark. 1, 627 S.W.2d 20 (1982). We reverse the trial judge in such matters only if we find it was clearly erroneous. Beed v. State, 271 Ark. 529, 609 S.W.2d 898 (1980). Reliability of eye witness identification is normally a question for the jury, however, fundamental fairness of identification procedures addresses itself to the trial court as a matter of law under Beed.
Several witnesses testified at the suppression hearing concerning the photographic and physical line-ups which were considered by the various witnesses. Witness Jeffcoat testified that the appellant had a blond, frizzy-headed look with black eyebrows and a black mustache. After viewing the physical line-up and picking out appellant, the witness stated to the prosecutor that he hoped he had selected the right person and the prosecutor allegedly stated that he believed Jeffcoat had picked the right man. It was improper for the prosecutor to make such a statement but it was made after the witness had identified the appellant. Therefore, the error is not prejudicial in this case. From the facts it does not appear that the line-up was used to crystallize this witness’s memory so that he could later be used to make an in-court identification. Another witness, the widow of one of the victims, picked the appellant from the physical line-up because she believed he was one of two persons who was in their jewelry store a few days before the murder. All of the witnesses to the physical line-up were apparently kept in one room prior to viewing the line-up. The evidence indicates that the witnesses did not discuss the matter of identifying anyone in the line-up, however, it still would have been a better practice to separate the witnesses prior to viewing the line-up.
It is true some of the witnesses’ testimony was vague and general in nature. However, this is a matter which addresses itself to the jury.
Witness Linda Godwin testified at the suppression hearing. She was unable to identify the appellant in the photographic line-up. She expressed some reservations about her identification of the appellant in the physical line-up. She further stated that she had seen appellant’s picture in the newspaper before viewing the line-up. She could not remember whether the appellant had a mustache but she did remember he had a beard. This was in direct contradiction with descriptions other witnesses had given about the appellant.
Witness Parr identified the appellant in the photo show-up. He did not hedge on his testimony and was very positive in his identification of the appellant as the man who had been in his store for about 15 minutes during the first part of September 1980. Parr also testified that the men he saw in his store, which is located near the store which was robbed, were in their mid-20s and slim but not skinny and about 5' 10" tall. His testimony at the trial was essentially the same. His testimony was to the effect that the dark haired man (appellant) did not have a mustache. His description was, to say the least, not identical with that of any other witness.
Witness Carson testified at the suppression hearing. He testified that he recognized the appellant in the photographic line-up arid that it appeared the man had lost 26 pounds since he observed him nine or ten months prior to the suppression hearing. Also, he had observed appellant’s picture in a newspaper.
Gilford Heckathorn did not participate in the line-up procedure or testify at the suppression hearing. Heckathorn claimed to have rented a storage building to the appellant for storing a motorcycle and other items. At the trial he positively identified an alternate juror as the man to whom he rented the building. There was no objection to this testimony or to that of Grant Cummins and we will not dwell upon their testimony as any error has been waived. Grant Cummins’ testimony was most positive at the trial, but it was later revealed that he examined the photographic line-up at the request of the prosecuting attorney during a break in the trial while the appellant was still seated at the counsel table in view of the witness. This was highly improper on the part of the prosecuting attorney but the witness’s testimony was introduced without objection. As to the photo identification, it appears that witnesses Ginn, Etier, Carson, Parr and Jeffcoat identified the appellant and witnesses Godwin and Staton were unable to do so.
It must be kept in mind that the appellant apparently changed his outward appearance often. He appeared as a curly haired blond and as a light colored long-haired individual, as well as having straight dark hair in the physical line-up. However, it appears that his eyebrows were always dark and when he had a mustache it was dark. The various witnesses observed the appellant at different times and he may well have appeared somewhat different to each of them. On the other hand, it is not unusual for several witnesses to view the same individual at the same time and come up with different descriptions. An accused is not entitled to have a line-up in which all the participants are identical. Sometimes the accused may even have a distinctive appearance which none of the other participants possess. McCraw v. State, 262 Ark. 707, 561 S.W.2d 71 (1978); James & Elliott v. State, supra. Generally speaking, the reliability of identification testimony can adequately be tested on cross-examination. Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982). We held in Sims v. State, 258 Ark. 940, 530 S.W.2d 182 (1975):
... before an error of constitutional proportions may be considered harmless, it must be harmless beyond a reasonable doubt, and we must be able to say that untainted evidence of the defendant’s guilt was overwhelming before we can even consider whether the error is harmless.
Also see Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975). The rule as established in United States v. Wade, 388 U.S. 218 (1967), and followed by this court in Montgomery v. State, 251 Ark. 645, 473 S.W.2d 885 (1971), is that when a line-up is conducted for the purpose of crystallizing a witness’s identification without the presence of the accused’s counsel, the state must establish by clear and convincing evidence that the subsequent courtroom identification by a witness who identified the accused in such a line-up was based upon independent observation rather than upon the constitutionally infirm line-up procedure. Although the evidence against the appellant in this case is all circumstantial, it is by no means all dependent upon the identification testimony of any particular witness. We have held that in-court identification can be held inadmissible as a matter of law only if, after viewing the totality of the circumstances, it can be said that the identification was patently unreliable. McCroskey v. State, 271 Ark. 207, 608 S.W.2d 7 (1980); and Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978). Finally, we state that while some of the witnesses’ testimony conflicted with that of other witnesses, the testimony was still admissible and its credibility was a matter for the jury. Therefore, we do not find that the court abused its discretion in allowing the testimony as it related to the photographic and physical line-up identification process.
IV. THE SUFFICIENCY OF THE EVIDENCE.
The appellant argues that since the evidence was all circumstantial, it did not rise to the level of proof required for conviction. The appellant correctly relied on Ayers v. State, 247 Ark. 174, 444 S.W.2d 695 (1969), for the proposition that when evidence is all of a circumstantial nature, every other reasonable hypothesis but the guilt of the accused must be ruled out. In determining the sufficiency of evidence to uphold a conviction we affirm if there is substantial evidence to support the jury’s verdict. Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977). Circumstantial evidence alone may be sufficient to support a conviction. Ayers v. State, supra; Yandell v. State, 262 Ark. 195, 555 S.W.2d 561 (1977). The law makes no distinction between circumstantial evidence and direct evidence. Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975). On appellate review it is sufficient if we consider only the evidence which is most favorable to the appellee. Williams v. State; Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979). Indeed, we have previously upheld the conviction of a defendant for capital murder when the evidence was all circumstantial. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).
Some of the evidence presented in this case was the testimony of Chantina Ginn who testified that she lived with the appellant for several days prior to the commission of the crime in question and several days afterwards. She testified that she and Lorili Peterson spent several days at Lake Beaver with Richard Anderson and the appellant whom she knew' as Damon Peterson. This witness testified that Damon and Rick left the encampment on Beaver Lake on September 9, 1980, and took with them a briefcase, wig, some rope and a change of clothes. The wig was described as being for a woman, curly, light brown, and falling about halfway to the neck. The two left on the motorcycle which this witness and Richard Anderson had brought to Lake Beaver from Kansas about the first of September. Her testimony was that Rick and Damon returned about 10:00 p.m. on the fourth night after having left. Upon their return, they had two orange duffle bags filled with jewelry. All four of the parties kept different pieces of the j ewelry. Damon and Rick later attempted the burn the price tags and identification boxes, some of which were recovered by the officers and introduced in evidence. Mrs. Staton identified some of the material as coming from the store where her daughter and husband had been murdered. At least one tag from the jewelry was found in a storage room in Fayetteville which had been rented by the appellant, according to witness Heckathorn. Linda Godwin identified the appellant as one of the men she saw in the immediate vicinity of the Staton jewelry store about the time the robbery occurred. Pat Etier testified that she. met the appellant on September 9 outside the Wal-Mart store in Van Burén, Arkansas. She subsequently spent the night with him in her home. She had occasion to view him from head to foot with no obstructions. She positively identified him at the trial.
We are not unmindful that there was considerable evidence presented by alibi witnesses to the effect that the appellant was in Alabama at the time of the robbery and murder. However, as stated above, we consider only the testimony most favorable to appellee. Therefore, from a review of the record we find that there was substantial evidence to support the jury’s verdict.
V. THE COURT IMPROPERLY EXCLUDED A HYPOTHETICAL QUESTION BY APPELLANT’S ATTORNEY.
During the process of cross-examination of witness Linda Godwin defense counsel asked the following hypothetical question:
If it were developed in the course of this trial that seven (7) people will testify under oath that Gene Perry was in Alabama at the time this occurred, would that change your testimony in any way?
The state objected on the following grounds:
That is assuming a fact that is not in evidence.
THE COURT: That is correct, that is not a proper question.
MR. SHARUM: Your Honor, we anticipate the evidence will be presented.
THE COURT: Well, you can anticipate what you may wish, but I don’t believe that is a proper question. The court is overruling it.
Apparently, appellant did not proffer the answer and accepted the ruling of the court.
The matter has not been properly preserved for our consideration on appeal.
VI. IT WAS ERROR TO EXCLUDE THE EVIDENCE OF DEFENSE WITNESS DR. DOUGLAS A. STEVENS.
Dr. Douglas A. Stevens, a clinical psychologist, testified on behalf of the appellant at the suppression hearing. His testimony was to the effect that the photographic line-up, as well as the physical line-up, was unduly suggestive and from a psychologist’s viewpoint would cause the witnesses to identify the appellant even if they did not actually recognize him. We do not find any particular rules of evidence which control this issue. This exact question has not previously been presented to us. The trial court refused to accept this testimony at the suppression hearing and also excluded it from the trial in chief. We do not find any case from any jurisdiction directly on point. However, in Smith v. State, 258 Ark. 601, 528 S.W.2d 389 (1975), we held that it is well-established that the determination of an expert’s qualification as a witness is within the sound discretion of the trial court and, absent an abuse of discretion, we do not reverse its decision. In a closely related factual situation we note the case of Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (Ark. App. 1980). In Caldwell our Court of Appeals held that the testimony of a qualified expert in the field of human perception was properly rejected by the trial court on the grounds that such testimony would be an invasion of the purview of the duties of the jury. We hold that the expert testimony of Dr. Stevens was properly excluded.
VII. THE COURT SHOULD HAVE ALLOWED EXPENSES FOR OUT OF STATE WITNESSES ON BEHALF OF THE APPELLANT.
Like many other issues this is a matter which lies within the sound discretion of the trial court and will not be reversed unless a manifest abuse of this discretion is shown. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). We note that the court did allow unlimited depositions of out of state witnesses pursuant to Ark. Stat. Ann. § 43-2001 et seq. (Repl. 1977). The court had offered to allow the appellant to bring four witnesses from out of state to testify at the trial or to take the depositions of unlimited witnesses. The appellant chose the latter. We do not feel that the appellant has established that prejudice resulted from the trial court’s denial of this request. Butler v. State, 264 Ark. 243, 570 S.W.2d 272 (1978). We recognize that the state often has available to it expense money and other resources which are not available to an accused. However, there has never been any guarantee that there will be equal amounts provided for both the defense and the prosecution. Apparently, all of the witnesses suggested by the appellant appeared at the trial with one possible exception. Therefore, we do not feel there has been a showing of prejudice.
VIII. THE PROSECUTING ATTORNEY MADE IMPROPER ARGUMENT IN HIS CLOSING ARGUMENT.
It is insisted by the appellant that the prosecuting attorney made statements which amount to a comment on the right of the appellant to remain silent as guaranteed by the Fifth Amendment. The statement, which caused the case to be remanded for a settlement of the record, is stated as follows:
Obviously there is a lot of stuff being done here to disguise the names of people. What name is given for Damon when he is down in Florida? Damon Malantino. Why was that name used? Who can tell. It is obviously one thing; it was not the name of Wallace Eugene Perry on any of this stuff. And why not?... You do not have eye witnesses. Nobody is going to come in here and say yes, I robbed, and I have shot. Whose fault is that? It’s the defense’s fault. There are no witnesses. You know, criminals are the ones that pick the witnesses for crimes, because criminals are the ones that decide the time and the place of the crime.
There was no objection at the time these remarks were made. The argument by the appellant is that this court should review and reverse, in the absence of objection, when the error is so great that the trial court was under a duty to correct it immediately and where no objection or admonition could have undone the damage or erased the effect of the error from the minds of the jurors. Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980); Smith v. State, 268 Ark. 282, 595 S.W.2d 671 (1980).
The case was remanded for settlement of the record when the state argued that a portion of the above-quoted statement should have read:
Nobody is going to come in here and say yes, I’ve (been) robbed, and I have (been) shot.
The word “been” was not used by the state in the closing argument. Appellant argues the statements are comments on appellant’s exercise of his right to remain silent. However, considering the total context of the closing argument, and the lack of an objection at the time of the trial, we are of the opinion that this was not a comment upon the right of the appellant to remain silent. We are not in a position to know how the statement was delivered, with what inflections and emphasis, and are not able to see how the jury perceived it. The trial court has a broad latitude of discretion in supervising and controlling arguments of counsel and its decisions are not subject to reversal unless there is manifest abuse of that discretion. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). In the case before us we do not find that the failure to object reached the status required which demands that in the interest of justice this court consider the alleged error when no objection was made at the time the statements were made.
IX. THE COURT ERRED IN ADMITTING STATE’S EXHIBIT NO. 64 OVER APPELLANT’S OBJECTION.
The appellant insists that Exhibit No. 64 (sets of fingerprint cards) should not have been introduced because it contained irrelevant and immaterial information which was highly prejudicial to the appellant. The card contained the signature of Damon Malandno and listed the alias of Damon Peterson. Direct and cross-examination testimony had presented evidence that Eugene Wallace Perry and Damon Malantino and Damon Peterson were one and the same person. Therefore, it was not error to allow the introduction of the exhibit showing different names and apparently the same fingerprints as those on the card of Eugene Wallace Perry. We think it is not necessary to quote any authority because this matter is so clearly admissible or at the very most within the sound discretion of the trial court.
X. THE COURT ERRED IN FAILING TO GRANT A MISTRIAL ON ACCOUNT OF PREJUDICIAL NEWS REPORTS.
The appellant insists that certain television news coverage was prejudicial to his case. He alleges that the news reporter made erroneous statements which connected appellant with the “mafia” and alleged he intended to escape during the trial. When an argument is unsupported by either a statement of authorities or convincing evidence, the issue is precluded from consideration on appeal unless it clearly appears without further research that the argument is justified. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). This case falls within that category.
XI. IT WAS ERROR TO ADMIT THE TESTIMONY OF WITNESS CHANTINA GINN.
During the testimony by this witness the state elicited from her the following:
Lorili asked Rick how he liked the way Damon worked, and Rick didn’t make any reply.
When the above answer was given, a proper foundation had not been established. However, immediately, during the time appellant was objecting, the state elicited additional testimony from the witness that all four of them were present. The state’s attorney asked a leading question and in effect testified. This was error but it was not prejudicial. Such matters are best handled by the trial court at the time of the improper statement or question. There was no request by the appellant to strike this testimony nor that the jury be admonished. Therefore, we will not consider it on appeal. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979).
XII. THE COURT ERRED IN REFUSING TO SEQUESTER THE JURY.
It is insisted that it was error for the court to refuse the appellant’s motion to sequester the jury during the trial, It is understandable that such á request was made, and we understand the reasons therefor. Ark. Stat. Ann. § 43-2121 (Repl. 1977) leaves it to the discretion of the trial court whether the jury will be sequestered. Such wide discretion will not be disturbed in the absence of a clear showing of prejudice. The appellant has not met the burden of showing that his trial was rendered unfair because of some outside influence on the jury. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982).
XIII. THIS COURT SHOULD MAKE A COMPARATIVE REVIEW OF THE APPELLANT’S DEATH SENTENCE WITH THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
The appellant insists that Richard Phillip Anderson, in a subsequent trial, received a life sentence upon conviction of first degree murder and therefore the appellant’s sentence of death by electrocution should be reduced. We agree with the appellant that we have agreed to review each sentence and compare it with other similar situations. Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). In Collins we stated that we were bound by the decision in Furman v. Georgia, 408 U.S. 238 (1972), to prevent any arbitrary or freakish use of the death penalty. We have compared the sentences of different appellants. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). One reason we cannot compare appellant’s case with that of Anderson is that Anderson’s case has not been considered by this court. Another reason is that we compare death sentences with death sentences. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), or death sentences with life without parole sentences. Swindler. Upon comparison of both the sentence and the facts, we do not feel appellant’s sentence should be reduced.
XIV. THE APPELLANT SHOULD HAVE BEEN INDICTED BY A GRAND JURY RATHER THAN ANSWER TO AN INFORMATION.
This argument hardly requires a response. The appellant quotes the Constitution of Arkansas which allows a proceeding by indictment instead of by a grand jury. Due to the serious nature of this case we have again reviewed our cases on this subject and we find no need to change our prior decisions. Our opinions are supported by the Supreme Court of the United States in the case of Gaines v. Washington, 277 U.S. 81 (1928). For a typical case in which we dismissed this argument without discussion see Ellingburg v. State, 254 Ark. 199, 492 S.W.2d 904 (1973).
XV. THE PHOTOGRAPHS WERE IMPROPERLY ADMITTED.
The appellant argues that exhibits 1 through 4, crime scene photographs, should not have been admitted into evidence. It is argued that the only purpose of such photographs was to inflame the passion and prejudice of the jury and that there was no probative value whatsoever in introducing the photographs. Photographs are admissible at the discretion of the trial court, and it does not matter that they are cumulative to other evidence. Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982). The photographs in the present case could have been helpful to the jury in understanding the testimony of witnesses in describing the scene as they found it after the murder. We do not find that these particular photographs are so highly prejudicial as to require their exclusion. Rogers v. State, 261 Ark. 293, 547 S.W.2d 419 (1977).
XVI. THE COURT ERRED IN REFUSING TO GRANT A MISTRIAL.
On the second day of the trial, after the noon recess, an attorney from Georgia was present in the courtroom reading the local newspaper which carried a headline concerning the trial then in progress. It is argued the headlines were held in such a position that the j ury could at least read the headlines. The headline on the newspaper stated: “Wife Identifies Staton Wedding Ring.” The court initially refused to grant the mistrial and rejected appellant’s request to voir dire the jury on the matter. Before the trial was over, however, the court realized the error and inquired of the jury concerning this event. No member of the jury admitted having seen the headline. As we have said many times, a mistrial is a drastic remedy lying within the trial court’s discretion and the court’s decision will not be reversed in the absence of a showing of abuse of discretion. Hutcherson v. State, supra. No such abuse was shown here.
XVII. THE COURT ERRED IN FAILING TO DECLARE CHANTINA GINN AN ACCOMPLICE.
An accomplice is defined in Ark. Stat. Ann. § 41-303 (Repl. 1977):
(1) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(a) solicits, advises, encourages or coerces the other person to commit it; or
(b) aids, agrees to aid, or attempts to aid the other person in planning or committing it; or . . .
There is no evidence whatsoever in this case that Chantina Ginn did anything other than accept part of the loot after the crime was committed. She may have had reason to suspect that Rick and Damon were up to no good when they left Lake Beaver with a gun and a rope and other paraphernalia. Suspicion alone is not enough to make a witness an accomplice as a matter of law. Johnson & Keeling v. State, 259 Ark. 773, 536 S.W.2d 704 (1976).
XVIII. IT WAS NECESSARY THAT CHANTINA GINN’S TESTIMONY BE CORROBORATED.
Appellant insists that witness Ginn was an accomplice as a matter of law. In the preceding point we have explained that she was not an accomplice as a matter of law. Appellant is correct that an accomplice’s testimony is viewed with some skepticism and that is the reason that we require independent corroboration of an accomplice’s testimony. Even if Chantina Ginn were an accomplice, the facts previously set out in this opinion conclusively show that there is independent evidence which tends to connect the appellant with the commission of the crime. Olles & Anderson v. State, 260 Ark. 571, 542 S.W.2d 755 (1976).
XIX. ARKANSAS’S CAPITAL MURDER STATUTE IS UNCONSTITUTIONAL.
We have held numerous times that Ark. Stat. Ann. § 41-1501 (Repl. 1977), our death penalty statute, is constitutional. It was first held constitutional in Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), and one of the latest cases is Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982).
XX. THE TRIAL COURT ERRED IN ESTABLISHING JURORS’ QUALIFICATIONS THROUGH PREJUDICIAL VOIR DIRE EXAMINATION.
We have attempted to discourage prolonged and confusing voir dire examinations of prospective jurors. Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980). In Haynes we stated the purpose of selecting a jury is to obtain a panel which will be fair and impartial to the accused as well as to the state. Therefore, any questioning done by the court should be very carefully phrased in order to prevent the members of the jury from feeling that the court wants them to decide one way or the other. Usually, there are enough prospective jurors present to form a petit jury without the necessity of going to great length or prolonged voir dire in attempting to rehabilitate a prospective juror. We agree that the judge cannot step from the bench to the aid of either party and that he must not unfairly limit the right of either party to voir dire the prospective jurors. However, there must be an end to questioning at some time and as soon as it is evident that a juror is qualified or disqualified the questioning should stop. We recognize that members of the jury probably look to the trial judge with more respect than any other party before them. To them his word is the law. West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973). The only objection preserved for argument appears to be against the seating of juror Ann Bolling. At one time she stated: “I think he should present his side of the story.” She later stated she understood the state had the burden of proof. She was excused by the appellant. The burden is on the appellant to prove a juror’s disqualification. Beed v. State, supra. We do not find anything in the abstract or argument to support the contention that the trial court exhibited prejudice or improperly rehabilitated any j uror. Under these circumstances we do not find prejudicial error in this argument.
XXL THE TRIAL COURT ERRED IN QUALIFYING THE JURY FOR THE DEATH PENALTY.
Before the voir dire of the prospective jurors the appellant moved the court to prohibit the state from “death qualifying” the panel. The motion was overruled. After the jury was seated, and the appellant had used all his peremptory challenges, his motion was renewed and rejected by the court. Therefore, the jury, as empanelled, was what has become known as the “Witherspoon” or “death qualified” jury. We have a great number of cases rejecting the argument that a “death qualified” jury is more apt to convict than a jury not so qualified. Lasley v. State, 274 Ark. 352, 625 S.W.2d 466 (1981); Ruiz & Van Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981); and Gruzen v. State, 276 Ark. 149, 634 S.W.2d 921 (1982). We have held that it would be improper to select a j ury panel which had agreed in advance to impose the maximum sentence. Haynes v. State, supra. On the other hand, we have stated that it was not error to excuse a venireman for cause when he unequivocally stated he could not vote for the death penalty. Ruiz & Van Denton v. State, supra. Therefore, we again hold that it is not error to select a jury which agrees in advance to consider the death penalty.
XXII. OTHER ADVERSE RULINGS
We have searched the record in compliance with our Rule 11 (f) and A.R.Cr.P. Rule 36.24 and Ark. Stat. Ann. § 43-2725 (Repl. 1977) and find no errors prejudicial to the rights of the appellant which have not been discussed in this opinion.
Affirmed.
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Frank Holt, Justice.
The issue presented here is the validity of Act 539 of 1981. Ark. Stat. Ann. § 19-704.1 et seq. (Supp. 1981). This act essentially has two operative provisions. It provides that in the 1982 general election cities having a population of 100,000 or more according to the most recent federal census and a city manager form of government must directly elect the mayor by a majority vote. Heretofore, in city manager governed cities (except Texarkana), the city directors were empowered to select the mayor from among themselves. The act further provides that each director in such cities would have to be elected by a majority vote, rather than a plurality, in the 1982 general election. To accomplish this the act provides for a runoff election, if necessary, to be held two weeks after the general election.
The appellants, residents and taxpayers of the city, filed suit alleging that Act 539 is unconstitutional as a violation of Amendment 14, Arkansas Constitution (1874), which prohibits local and special legislation. They asked that the act be invalidated and the city of Little Rock be enjoined from enforcing it. The chancellor ruled that the obvious purpose of the act, which requires the election of the board of directors and mayor by a popular majority vote, was to make the legislative body and the mayor more responsive to the voters inasmuch as the problems in larger cities are different and more complex than in smaller cities. Therefore, the chancellor held it was a reasonable and valid legislative action. The appellants contend that the chancellor erred in so holding.
We have had occasion to construe Amendment 14 numerous times, and the principles that govern whether an act is general, special or local are well settled. In Laman, Mayor v. Harrill, 233 Ark. 967, 349 S.W.2d 814 (1961), we said:
A general law is one that operates upon all counties, cities and towns alike. A law is special in a constitu tional sense when by force of an inherent limitation it arbitrarily separates some person, place or thing from those upon which, but for such separation it would operate and a local law is one that applies to any subdivision or division of the state less than the whole.
There we also reiterated that in determining whether an act is general, local or special, we “look to its substance and practical operation” rather than to the form or phrasing of the act; otherwise, the prohibition against special and local legislation placed in the constitution by the people of Arkansas could easily be circumvented. In Street Improvement Districts Nos. 481 and 485 v. Hadfield, 184 Ark. 598, 43 S.W.2d 62 (1931), we said:
The general rule is that classification is properly based on population when reasonably adapted to the subject of the statute. Otherwise the classification by population is special legislation ....
The authorities generally hold that classification of cities and towns by population can not be artibrarily adopted as a ground for granting some of them powers denied others if, although there be a difference in population, there is no difference in situation or circumstances of the municipalities placed in the different classes, and the difference in population has no reasonable relation to the purposes and object to be attained by the statute.
See also Lovell v. Democratic Central Committee, 230 Ark. 811, 327 S.W.2d 387 (1959).
Act 539 grants to cities having over 100,000 people and a city manager form of government two powers denied to cities with a city manager form of government and population less than 100,000, namely, the power to directly elect their mayor in 1982 and the power to hold runoff elections two weeks after the general election in 1982 to insure that all directors, as well as the mayor, are elected by a majority vote. In other words, cities with a population below 100,000 may not directly elect their mayors or hold runoff elections to insure that all directors and mayors are elected by majority votes. Ark. Stat. Ann. §§ 19-704 and 19-708 (Repl. 1980). The act clearly grants to one city, Little Rock, powers in the election of its governing officials not granted to other cities with the same form of government. Further, we are unable to discern from the act and the evidence presented that there is any reasonable connection between a city having a population exceeding 100,000 and the desirability of the act’s electoral provisions.
The appellee city and the appellee intervenors, residents and taxpayers of the city, argue, however, that the mayor in Little Rock has more control over the agenda because of the more numerous and complex issues faced by that city than a smaller size city. Zoning problems, airport problems and such are said to be problems of a sort that do not exist in a smaller city which results in the mayor of Little Rock having substantially more power than mayors in smaller cities. Furthermore, it is argued that the mayor in a large city is more distant or removed from the citizenry than the mayor in a small city.
The mayor in a city, regardless of its size, having a city manager form of government merely presides at board meetings, is recognized as head of the city government for ceremonial purposes, and signs all written agreements on behalf of the city. § 19-708 (b). These powers are not altered in any way by Act 539. They are the same whether the mayor is selected by the directors or by direct election with a majority vote. In the absence of some reasonable statutory difference in the powers or functions of the mayors of cities of different sizes, we cannot, although the act is accorded presumptive validity, find any reasonable basis for granting to one city but not others the power of directly electing its mayor and holding runoff elections for the positions of mayor and city directors two weeks alter the general election. Consequently, we must hold that Act 539 is special legislation which contravenes Amendment 14. We deem it unnecessary to discuss appellants’ additional argument that the act is local legislation.
We do not hold, however, that the general assembly may never draw population classifications that treat cities differently when the purpose of the act is based on a reasonable and sound basis due to substantial differences and needs. Knowlton v. Walton, 189 Ark. 901, 75 S.W.2d 811 (1934); and Lovell v. Democratic Central Committee, supra.
Reversed and remanded with directions that the injunction be issued.
Adkisson, C.J., dissents.
It was stipulated that the following cities have a city manager form of government: Arkadelphia, 10,005; Brinkley, 4,909; Camden, 15,356; DeQueen, 4,594; Fayetteville, 36,608; Hope, 10,290; Little Rock, 158,461; Texarkana, 21,459.
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Richard B. Adkisson, Chief Justice.
Prior to trial the Jefferson County Circuit Court dismissed a charge of rape against appellee, Jimmy Clark Lee. Appellant, the State of Arkansas, brings this appeal pursuant to Ark. Stat. Ann. § 43-2720 — 2720.1 (Repl. 1977).
The first issue argued on appeal is whether the trial court erred in its interpretation of Ark. Stat. Ann. § 43-2036 (Supp. 1981) which provides that videotaped depositions of minor victims of sexual offenses shall be admitted in evidence in lieu of testimony:
43-2036. Videotaped deposition of alleged victim under seventeen years of age in sexual offense prosecution — Procedure — Use. — In any prosecution for a sexual offense or criminal attempt to commit a sexual offense against a minor, upon motion of the prosecuting attorney and after notice to the opposing counsel, the court may, for a good cause shown, order the taking of a videotaped deposition of any alleged victim under the age of seventeen (17) years. The videotaped deposition shall be taken before the judge in chambers in the presence of the prosecuting attorney, the defendant and his attorneys. Examination and cross-examination of the alleged victim shall proceed at the taking of the videotaped deposition in the same manner as permitted at trial under the provisions of the Arkansas Uniform Rules of Evidence. Any videotaped deposition taken under the provisions of this Act shall be viewed and heard at the trial and entered into the record in lieu of the direct testimony of the alleged victim.
The deposition of the eight-year-old victim was videotaped pursuant to this statute; however, at the videotaping she refused to testify about the alleged crime other than to state that appellee had done something with her that was unusual or odd. The court excused her for a short period of time subject to recall. On recall she testified: that the first time her dad ever did anything her brother was around; that her brother was playing outside and she and her dad were inside; and that she and her dad were watching t.v. in his bedroom. She then became silent and refused to answer any more questions or give any further testimony.
Several days after the videotaping appellee filed a motion to dismiss the charge because the victim’s deposition failed to state any grounds for the charge. The trial court granted appellee’s motion, holding that under Ark. Stat. Ann. § 43-2036 (Supp. 1981) the victim’s videotaped depositions must be viewed and heard at trial and entered into the record in lieu of the direct testimony of the alleged victim. We agree with the trial court’s interpretation of this statute. The mandatory language of the statute is clear and unambiguous. We have repeatedly held that when the wording of an enactment is self evident, we need not look elsewhere to determine meaning and intent. Casey v. Scott Paper Co., 272 Ark. 312, 613 S.W.2d 821 (1981); Ellison v. Oliver, 147 Ark. 252, 227 S.W. 586 (1921). Where a statute is plain and unambiguous, there is no room left for construction; and neither the exigencies of a case nor a resort to extrinsic facts will be permitted to alter the meaning of the language used in the statute. Cunningham v. Keeshan, 110 Ark. 99, 161 S.W.2d 170 (1913).
The State next argues that the trial court prematurely judged the State’s evidence by dismissing the charge. We agree. The State indicated to the court that it would produce two witnesses other than the victim. Therefore, it was error for the trial court to dismiss the charge. The case is reversed on this point and remanded.
Reversed and remanded.
Hickman, Purtle and Hays, JJ., dissent in part.
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Darrell Hickman, Justice.
Everett L. Reding was convicted of delivery of marijuana and sentenced to four years’ imprisonment and a $1,000 fine. Reding’s two arguments on appeal are meritless and the judgment is affirmed.
The first issue was disposed of recently in the case of Merrill v. State, 277 Ark. 146, 640 S.W.2d 787 (1982) where we held Ark. Stat. Ann. § 82-2116 (Supp. 1981) did not repeal Ark. Stat. Ann. § 82-2617 (Supp. 1981).
The second issue is a challenge of the forfeiture of a 1973 Ford Pinto station wagon, which Reding drove to the residence where he sold the marijuana to an undercover agent. In a separate hearing after the trial and conviction, the trial court found the vehicle could be forfeited under Ark. Stat. Ann. § 82-2629 (Supp. 1981). He found by a preponderance of the evidence that the vehicle should be forfeited. Among the evidence was testimony by the undercover agent that the substance he bought was marijuana, that it was transported in the Pinto, and the judgment of Reding’s conviction. At the hearing neither the testimony that the delivered substance was marijuana nor the judgment was objected to as hearsay.
Affirmed.
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Robert H. Dudley, Justice.
Appellant pleaded guilty to a charge of rape and was sentenced to 30 years in prison. He then filed a Rule 37 petition for post-conviction relief alleging ineffective assistance of counsel and failure of the trial court to inquire into the factual basis of the plea. The trial court denied post-conviction relief and we affirm. Jurisdiction is in this court pursuant to Rule 29 (1) (e).
On November 28, 1979, appellant was arrested. Late that afternoon he gave a statement in which he said, “I asked her ... [to have consensual intercourse] and she started laughing. We laid down on the floor, she pulled her pants off and I showed her the knife. I was on my knees, I laid over on her and put it in, she kept saying don’t hurt me and I told her I wouldn’t hurt her. I stayed on her for about 10 minutes. When I got through I stood up and waited until she put her clothes on. ...” The next day the information was filed, formal arraignment was held which included a full explanation of the charge and a detailed description of appellant’s rights, an attorney was appointed and a plea of not guilty was entered. The attorney, the appellant, his mother and his step-father examined and discussed the contents of the prosecutor’s file, which included written statements from the victim, the appellant and appellant’s next-door neighbor.
On December 6, 1979, a week after the formal arraignment and the plea of not guilty, appellant and his attorney appeared before the court and entered a plea of guilty. Again the judge asked appellant if he understood the charge and asked whether he had discussed the case in detail with his attorney and whether he was satisfied with his attorney’s services. He responded affirmatively to each question. The judge asked if the appellant had been threatened, mistreated or promised anything for his plea of guilt. He answered, “No, sir.” The judge then repeated the explanation of the minimum and maximum penalty, appellant’s right to a jury trial, his right to subpoena and cross-examine witnesses and the burden of proof and the requirement of a unanimous twelve member jury verdict for a finding of guilt. The appellant stated he understood and did not want a jury trial. Appellant was again told of the 30-year sentence to be recommended by the Prosecuting Attorney and he repeated the sentence to be recommended to the judge. When again asked for his plea, appellant responded, “Well, I’m not guilty, though, but I’m going to plead guilty to it.” The court responded, “No, sir. I can’t accept that. You are either guilty or not guilty.” Appellant then stated that he was guilty.
Appellant contends that his plea was involuntary for two reasons: first, he was denied effective assistance of counsel and second, counsel coerced him into pleading guilty.
The issue, as in the recent case Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981), is whether the guilty plea was entered intelligently and voluntarily and with the advice of competent counsel. In Williams, we stated that appellant has the burden of showing that the advice he received from his attorneys was not within the range of competence demanded from lawyers in criminal cases. Horn v. State, 254 Ark. 651, 495 S.W.2d 152 (1973). In addition, this Court has often stated that there is a presumption that counsel was competent. See, e.g., Rightmire v. State, 275 Ark. 24, 627 S.W.2d 10 (1982); Hoover v. State, 270 Ark. 978, 606 S.W.2d 749 (1980); Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980); Davis v. State, 267 Ark. 507, 592 S.W.2d 118 (1980). In view of this presumption, appellant’s burden is a heavy one. Rightmire v. State, supra.
We will reverse the denial of post-conviction relief only if the findings of the lower court are clearly against the preponderance of the evidence. Williams v. State, supra. Thus, the question to be resolved is whether the trial court’s findings were clearly against the preponderance of the evidence.
Appellant’s contention that he was denied effective assistance of counsel is a two-pronged allegation: first, his attorney failed to properly investigate his case and second, the attorney failed to properly prepare a defense.
Appellant’s first argument on ineffective assistance of counsel is that his attorney failed to properly investigate an alibi defense. However, in view of the fact that appellant’s statement admitted sexual intercourse with the prosecutrix at the time and place alleged, it was obvious that the only issue was forcible compulsion, and there simply was no need for the attorney to investigate a ludicrous alibi defense.
Appellant also contends that counsel was ineffective in not pursuing an insanity defense. The attorney testified that he explained the defense of insanity to appellant and offered to file a motion seeking to have appellant examined by the Arkansas State Hospital but appellant chose to plead guilty. The attorney had observed the defendant during lengthy periods of consultation and thought appellant was coherent and knew the difference between right and wrong. The trial judge ordered a psychiatric evaluation of appellant on September 23, 1980, in preparation for the hearing for post-conviction relief. The examining psychiatrist concluded from his examination that appellant "was probably not suffering from mental disease or defect of such degree as to make him unable to appreciate the criminality of his conduct or to conform his conduct to the law at the time of the alleged offense.” There was sufficient evidence in the record for the trial judge to conclude that the failure to pursue an insanity defense did not amount to ineffective assistance of counsel. The findings of the trial court are not clearly against the preponderance of the evidence.
Appellant also alleges that his plea of guilt was based on an involuntary confession. In Irons v. States 267 Ark. 469, 591 S.W.2d 650 (1980), we stated:
When there is a collateral attack on a plea of guilty, rendered upon advice of counsel, the inquiry is not addressed to the merits of claims of constitutional deprivation prior to the entry of the plea, but it is focused upon the question whether the plea had been made intelligently and voluntarily upon advice of counsel. Such deprivations are pertinent only in evaluating the advice rendered by counsel. Horn v. State, 254 Ark. 651, 495 S.W.2d 152. If the appellant’s plea of guilty was entered voluntarily and was not the result of ineffective assistance of counsel, any other possible defenses, except for jurisdictional defects, were waived by him. Horn v. State, supra; Rimmer v. State, 251 Ark. 444, 472 S.W.2d 939; Wilson v. State, 251 Ark. 900, 475 S.W.2d 543....
Id. at 472, 591 S.W.2d at 561-62.
Thus, the question of the voluntariness of a pretrial confession is not itself the basis of post-conviction relief. It is, however, significant in relation to the charge of ineffective assistance of counsel, discussed above. In this case, the appellant did not give a pretrial confession; he gave a pretrial statement that the sexual intercourse was had with consent and consent, in turn, would have been the anticipated defense. Thus, the plea of guilt was not caused by an attorney ineffectively allowing an involuntary pretrial confession to stand. We affirm the trial court’s ruling that the appellant did not meet his heavy burden and did not prove ineffective assistance of counsel.
Appellant’s next contention is that his plea was involuntary because his attorney coerced him into pleading guilty. The main thrust of his argument is that his attorney discussed the possible existence of racial prejudice in the community and how it might affect a sentence recommended by a jury. Appellant is black and the prosecutrix is white.
The discussion by an attorney of all of the factors which might possibly lead to a higher sentence at trial does not, of itself, mean that a plea was compelled. In Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981), we stated that the accused’s justified fear of receiving a higher sentence if he went to trial did not warrant post-conviction relief. In Todd v. State, 253 Ark. 283, 485 S.W.2d 533 (1972), we said: “A plea of guilty even if induced by the possibility of a more severe sentence does not establish coercion.” Id. at 285, 485 S.W.2d at 534. The fact that the attorney discussed possible racial prejudice against the defendant does not, of itself, constitute coercion of a plea.
Appellant’s final argument is that the trial court did not inquire into the factual basis of his plea. Rule 24.6, A.R.Cr.P. provides:
Determining Accuracy of Plea.
The court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea.
We have held that compliance with Rule 24.6 is mandatory. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). But, deficiencies in the proceedings can be remedied at post-conviction hearings. Deason v. State, 263 Ark. 56, 562 S.W.2d 79 (1978). At the time of the plea Rule 24.6 was not strictly complied with as the court did not ask the appellant about the factual basis of the plea. However, the written statements of appellant and the prosecutrix were admissible, Davis v. State, 267 Ark. 507, 592 S.W.2d 118 (1980), and both statements plus one from a third witness were considered by the court at the post-conviction hearing. The appellant’s statement left only one factual element of the crime in doubt and that element was forcible compulsion. Appellant admitted in his written statement that he had a knife and showed it to the prosecutrix. He admitted engaging in sexual intercourse with the prosecutrix but intimated it was with consent. Twice the trial court read to appellant the charge against him, “sexual intercourse by forcible compulsion.” Twice the appellant stated he understood the charges. Appellant’s attorney twice stated in open court that he had read and explained the charges to him. Twice the appellant acknowledged that he had discussed the matter in detail with his attorney and twice he acknowledged that he was satisfied with the attorney’s services. He understood that the Prosecuting Attorney would recommend 30 years in prison if he pleaded guilty to the charge of rape. He then pleaded guilty. All of these attendant circumstances demonstrate that the trial court had a factual basis for finding the element of forcible compulsion. Thus, a factual basis for the plea was established and there was substantial compliance with Rule 24.6.
Affirmed.
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Darrell Hickman, Justice.
This is a case involving the Fair Dismissal of Teachers Act of 1979; Ark. Stat. Ann. §§ 80-1264 through 80-1264.10 (Repl. 1980). We find the appellant, Joe Dale Head, had no right to appeal from a decision of the school board and, therefore, the judgment is affirmed.
Joe Dale Head was a probationary teacher in the Caddo Hills School District, serving his first year during the school year of 1979-1980. Near the end of the term, after he had signed a contract for the next year but before it was accepted, a controversy arose involving him and his students. The superintendent informed Head he would in all likelihood be up before the board for a nonrenewal or termination of his contract. The superintendent conducted an investigation and by letter dated July 23, 1980, Head was notified that the school board recommended that his contract for the next year be terminated or not renewed. The letter gave five reasons. Head requested a hearing and on August 14,1980, a hearing was held before the board. Head had counsel, a record was kept, and there is no question he was provided the formal requirements of due process. After the hearing, a motion was made to terminate Head’s contract for the school year 1980-1981, and it was approved with five votes. One member abstained.
Head appealed to the circuit court raising two reasons for reversal: That the school board’s action was a termination and that the school board did not comply with its own policies. The court considered the transcript of the hearing and other evidence and concluded that Head was not in fact terminated but simply that his contract had not been renewed, and since it involved a nonrenewal, as opposed to a termination, no hearing was required and no reasons had to be given for the renewal of a probationary teacher. The court was wrong because without doubt this was a case of termination and not the nonrenewal of a contract. The contract was delivered to Head in early spring of 1980. He signed it and returned it to the school. The Act provides that in the case of nonrenewal the teacher must be notified of that fact in writing during the term of the contract or within ten days after the end of the school year. By stipulation the parties agreed the school term ended May 23, 1980, and the school district’s policy clearly provided Head had to be notified his contract would not be renewed no later than ten days after the school term expired, which would be June 2nd. But the fact that Head was terminated is not relevant to our ultimate decision — which turns on the question of jurisdiction. His termination entitled Head to a hearing before the school board and the Board gave him one. Ark. Stat. Ann. § 80-1264 (Repl. 1980).
We have had seven cases before us involving the Fair Dismissal of Teachers Act. Chapman v. Hamburg Public Schools, 274 Ark. 391, 625 S.W.2d 477 (1981); Nordin v. Hartman Public Schools, 274 Ark. 402, 625 S.W.2d 483 (1981); Allred v. Little Rock School District, 274 Ark. 414, 625 S.W.2d 487 (1981); Springdale School District v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981); Maxwell v. Southside School District, 273 Ark. 89, 618 S.W.2d 148 (1981); McElroy v. Jasper School District, 273 Ark. 143, 617 S.W.2d 356 (1981); Fullerton v. Southside School District, 272 Ark. 288, 613 S.W.2d 827 (1981). Nearly all of them have presented us with different questions, and required a decision interpreting this new Act. By this time certain questions have undoubtedly been answered. First, a probationary teacher, one that has been at a school for less than three consecutive years, is granted far less in the way of rights and legal protection than a teacher not on probation, that is, one with more than three consecutive years service. McElroy v. Jasper School District, supra. Before this Act was passed a school district could renew or decline to renew a teacher’s contract on an annual basis regardless of years of service, without any accountability for that decision. Cato v. Collins, 394 F. Supp. 629 (E.D. Ark. 1975) aff’d 539 F.2d 656 (8th Cir. 1976). That right of the school district still exists as to probationary techers, and no reason at all has to be given for a nonrenewal. Maxwell v. Southside School District, supra. The Act provides that a nonprobadonary teacher, “aggrieved by a decision of the school board”, has a right to appeal to the circuit court and then to this court. Ark. Stat. Ann. § 80-1264.9 (Repl. 1980).
But we have not decided a probationary teacher has a statutory right to appeal from a decision of the school board. In fact, we held that the statutory language quoted did not apply to a probationary teacher. Nordin v. Hartman Public Schools, supra. Therefore, such a teacher has no statutory right to appeal from a decision to the circuit court.
While the dictum in the Nordin case said that a probationary teacher had a right of appeal from a school board decision involving termination if “constitutional issues” were involved, the Act makes no such provision. The dictum in Nordin was no doubt in reference to the fact that no law can terminate any teacher because of discrimination. See Perry v. Sindermann, 408 U.S. 593 (1972) and Cochran v. Chidester School District, 456 F.Supp. 390 (W.D. Ark. 1978). But due process of law does not require that a teacher be granted a right to appeal to the circuit court. Due process does not require judicial review. Lott v. Pittman, 243 U.S. 588 (1916); Standard Oil Co. v. Missouri, 224 U.S. 270 (1912); Reetz v. Michigan, 188 U.S. 505 (1905). Due process only requires a proper hearing which the Act provides for.
Neither party addressed the question of jurisdiction of the circuit court below. This case arose in 1980 before our decisions in the cases of Nordin v. Hartman Public Schools, supra and Chapman v. Hamburg Public Schools, supra. But the question of whether Head had a right to appeal to circuit court is a jurisdictional question which we can address at any time. State v. Glenn, 267 Ark. 501, 592 S.W.2d 116 (1980); First Pyramid Life Ins. Co. of America v. Reed, 247 Ark. 1003, 449 S.W.2d 178 (1970); Smyrna Baptist Church v. Burbridge, 205 Ark. 108, 167 S.W.2d 501 (1943).
A probationary teacher’s remedy for an illegal termination is a suit for breach of contract. A nonprobationary teacher, “aggrieved” by the action of the board, has an exclusive remedy of appeal to the circuit court. Ark. Stat. Ann. § 80-1264.9 (b).
It might be more convenient for the teachers to have the circuit court review these matters, but that is nota judgment we can make. Only the General Assembly has that power.
Since there was no right to appeal to the circuit court, the circuit court should have dismissed the appeal.
Affirmed.
Purtle, Dudley and Hays, JJ., dissent.
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Frank Holt, Justice.
This is a personal injury action arising out of an automobile accident on January 15, 1974, in which appellant Brenda Waterfield allegedly suffered back injuries. The jury awarded her $1,000. Her husband, appellant Billy Waterfield, was awarded no recovery on his action for loss of consortium and his wife’s medical expenses. The appellants filed a motion for a new trial and a motion to vacate.the order, both of which were denied. We affirm.
The appellants first assert that the trial court erred in sending the typed instructions to the jury, which instructions contained crossed out but not obliterated words and handwritten alterations. Admittedly, no objection was made, but the appellants argue that there was no opportunity to object because the trial court did not allow counsel to review the instructions before they were given to the jury. Instead, the instructions were merely handed to the jury.
We agree with the appellees that the record reflects the court and counsel for the parties reviewed the proposed instructions in a conference out of the hearing of the jury, during which there were various objections to some of them by both parties. For instance, counsel for the appellants referred specifically, inter alia, to the court’s handwriting when he said: “The Court has handwritten as indicated that he would not give the value of any earnings lost.” This was plaintiffs’ requested instruction No. 18 (AMI 2201), which was given as modified by the court. A notation on this instruction reads “obj. to mod.” A similar objection was noted to the court’s modification of plaintiffs’ instruction No. 19 which the court deleted that part permitting recovery for future medical expenses. The record reflects that the other instructions were also discussed. Further, after closing arguments, the court stated to the jury:
. . . [Y]ou’ve now heard the arguments of counsel, as well as the testimony of the witnesses and the exhibits received in evidence and the instructions of law that have been given you by the Court. So that you won’t have to be passing a lot of messages back and forth, I’m going to go ahead and let you take to the Jury Room with you the instructions. . . .
The court then gave the jury a lengthy explanation of their responsibilities and the verdict forms before the instructions were handed to the jury without any objection being interposed.
We agree with the appellees that the record sufficiently establishes that counsel for the appellants had an opportunity to object to the action of the court but did not do so. Accordingly, we need not address this contention on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Furthermore, it is within the trial court’s discretion, even though one of the parties objects, to permit the jury to have the written instructions in the jury room during deliberation. Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945 (1976). In any event, no prejudice has been shown. The instructions were read to the jury by the court. Nothing in them was confusing or illegible as a result of the handwritten modifications or the crossed out but unobliterated words. See ARCP, Rule 16, Missouri Pacific Railroad Company v. Watt, 186 Ark. 86, 52 S.W.2d 634 (1932); Eck v. Market Basket, 264 Or. 400, 505 P.2d 1156 (1973); and Universal Investment Co. v. Carpets, Inc., 16 Utah 2d 336, 400 P.2d 564 (1965).
The appellants next argue that the verdict is invalid because damages were awarded to Mrs. Waterfield but not to Mr. Waterfield. Although Mr. Waterfield testified that he paid the medical expenses, Mrs. Waterfield testified that she paid them and then that Mr. Waterfield paid them. It was possible, therefore, for the jury to conclude that it was compensating Mrs. Waterfield for the medical expenses incurred by her injuries when it awarded her $1,000. The total medical expenses were $176.60.
With respect to the issue of whether the verdict is inconsistent because no loss of consortium recovery is awarded to the spouse of the injured party, we agree with the cases holding that the jury need not, as a matter of law, give a pecuniary award for loss of consortium where damages are awarded to the injured spouse. It appears there is no fixed standard for ascertaining compensatory damages for loss of consortium. See MacCubbin v. Wallace, 42 Md. App. 325, 400 A.2d 461 (1979); and Cook v. Sweatt, 282 Ala. 177, 209 So.2d 891 (1965). Further, the only testimony on the loss of consortium was that of the appellants. The jury is not required to believe the testimony of any witness, particularly interested parties, since the testimony of interested parties is considered disputed as a matter of law. Bittle v. Smith, 254 Ark. 123, 491 S.W.2d 815 (1973); Zero Wholesale Gas Co., Inc. v. Stroud, 264 Ark. 27, 571 S.W.2d 74 (1978).
Appellants argue that the verdict must be set aside because of jury misconduct. This contention is based upon an affidavit from one juror stating remarks that allegedly were made by jurors describing the discussions during the course of jury deliberations. This affidavit plainly violates Rule 606 (b), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1977), which provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.
To that effect see Martin v. Blackmon, 277 Ark. 190, 640 S.W.2d 435 (1982); Ashby v. State, 271 Ark. 239, 607 S.W.2d 675 (1980); Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981); and Veasey v. State, 276 Ark. 457, 637 S.W.2d 545 (1982). Since this affidavit is inadmissible, there is no evidence of juror misconduct.
The appellants also contend that a new trial should be granted because the award of $1,000 to Mrs. Waterfield is inadequate. In cases predating the Arkansas Rules of Civil Procedure, we held that a jury verdict will not be set aside because of inadequacy of damages where the damages are not susceptible to reasonably precise pecuniary measurement, unless the award is so nominal as to amount to a refusal to assess damages. Bittle v. Smith, supra; and Tompkins v. Duncan, 255 Ark. 491, 501 S.W.2d 210 (1973).
In Taylor v. Boswell, 272 Ark. 354, 614 S.W.2d 505 (1981), we said:
Civil Procedure Rule 59 has superseded our former statute with respect to new trials on account of the smallness of the verdict. Ark. Stat. Ann. § 27-1902 (Repl. 1962). Rule 59 merely provides that a new trial may be granted for ‘error in the assessment of the amount of recovery, whether too large or too small.’ Our former rule was that when the verdict was for a substantial amount, as this one is, the trial judge’s denial of a new trial for inadequacy of the award would not be reversed unless there was other error or the evidence definitely established a pecuniary loss in excess of the verdict. Bittle v. Smith, 254 Ark. 123, 491 S.W.2d 815 (1973). We need not determine to just what extent our law has been changed by Rule 59, because the appellant would not be entitled to a reversal even under the superseded statute and the former case law.
As in Taylor we need not address the question of whether Rule 59 (a) (5) changes the Arkansas law in this area. (See Reporter’s note to Rule 59.) The jury’s award of $1,000 was more than five times the amount of the precisely proven medical expenses attributable to the accident. Therefore, whether viewed in light of the older Arkansas cases or the language of Rule 59 (a) (5), no new trial is called for due to inadequacy of damages.
The appellants also contend that the verdict is not supported by substantial evidence. Upon appeal, in testing the sufficiency of the evidence, we consider only the evidence of appellee or that part of all the evidence most favorable to the appellee and affirm if there is any substantial evidence to support the jury’s finding. Thrifty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W.2d 304 (1975). Here, one physician testified that Mrs. Waterfield had sustained no permanent impairment as a result of her injury. The jury also could infer that Mrs. Waterfield’s injuries were not serious from the fact that she had not been treated for her injuries since 1977 and that she had been treated on only a few occasions between the accident of February 15, 1974, and 1977. We conclude that the verdict was supported by substantial evidence.
The appellants contend that the trial court erred in refusing to instruct the jury as to the value of earnings lost, loss of ability to earn in the future, disfigurement, and future medical care. There is no evidence of disfigurement in the record. As to the value of lost earnings, Mrs. Waterfield testified that she could not remember losing any income from missing work because of her injuries sustained in the accident. She testified that she was not working at the time of the accident, but that she had previously worked as a secretary and estimated that she could earn $700-$800 per month in that occupation. However, she had not sought secretarial work because she did not think she could function as a secretary due to her back injuries. For about three years prior to trial, she had worked as a teacher’s aide and library assistant at a local school. She had missed only one day of work due to her back problem and had lost no income. Her earnings were, at the time of trial, $460 per month for nine months each year. Her regular physician testified that he would hesitate to recommend her for work involving bending, twisting, lifting and stooping. An orthopedic surgeon called by the plaintiffs testified that her back injuries would preclude her from doing heavy manual labor. In our view, no basis was established upon which the jury could have concluded, except by speculation, that a loss of ability to earn as a secretary was established with reasonable certainty. Swenson v. Hampton, 244 Ark. 104, 424 S.W.2d 165 (1968); and Check v. Meredith, 243 Ark. 498, 420 S.W.2d 866 (1968).
With respect to the future medical expenses, one physician stated that Mrs. Waterfield may have to take medication for the rest of her life. There was, however, no evidence of the cost of any such future medication. Of the total $176.60 medical expenses, incurred during the seven years since the accident, the most recent expense had been incurred in November 1977, some four years prior to the trial. Any award for future medical expenses would have had to have been made on the basis of speculation and conjecture. There was a total lack of evidence as to what medical expenses, if any, appellants would incur in the future as a proximate result of her injuries. Therefore, there was insufficient foundation or basis established for a future award of medical expenses here. Roy v. Atkins, 276 Ark. 586, 637 S.W.2d 598 (1982). Accordingly, the trial court did not err in refusing to instruct on future medical expenses.
Affirmed.
Purtle, J., dissents.
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George Rose Smith, Justice.
The appellant Jo Mhoon was elected tax collector of Washington County for a two-year term beginning in January, 1979. In October, 1980, a state audit team made an unannounced cash count of funds in all the county offices in the county and discovered in the collector’s office money for which no receipts had apparently been issued. During the next nine months the auditors spent some 3,700 hours in conducting a detailed audit of the collector’s records and concluded that there was a shortage of about $24,000. This prosecution was instituted against the appellant for theft of funds in excess of $2,500 and for 20 charges of malfeasance in office (failure to account for collections within five days after the first day of 20 separate months). The jury found the appellant guilty of theft and sentenced her to a $10,000 fine and removal from office. The jury also found her guilty of 18 of the 20 charges of malfeasance in office and fixed her punishment upon each count at a $100 fine and removal from office.
For reversal the appellant argues that the court should have directed a verdict of not guilty upon the charge of theft, that an auditor should not have been permitted to summarize his findings without the supporting documents having first been admitted in evidence, and that the 20 misdemeanor counts of malfeasance in office should have been dismissed.
First, there is ample substantial evidence to support the submission of the theft charge. The auditors found that a great many carbon copies of tax receipts had been marked with the word “void,” although the original tax receipts had been issued. A handwriting expert testified that he had a high degree of certainty that the appellant had written the word “void” on the copies. There was testimony that after the appellant had been told of the shortages she appeared from time to time with some of the missing receipts. The proof showed that it was the appellant who took the weekly collections to the bank for deposit and thus had the opportunity to withhold cash. Other employees in the collector’s office testified that they had not voided the tax receipts. The jury evidently disbelieved the appellant’s testimony that she did not void the receipts and that someone else must have done so. The State’s proof was substantial, and upon the evidence, circumstantial though it was, the jury could reach its verdict of guilty without resorting to conjecture. See Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).
Second, Rule 1006 of the Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), provides, as did the common law, that the contents of voluminous writings which cannot conveniently be examined in court may be presented in summary. That was done by the witness Johnson’s testimony. The auditors had examined hundreds of documents in the collector’s office and had recorded their figures in worksheets. Those documents and worksheets were made available to defense counsel and were brought into the courtroom at the court’s direction. The defendant was offered a continuance to permit her counsel to examine the documents, but that offer was declined. The trial judge handled this entire matter correctly.
Third, the trial court overruled a defense motion to dismiss the charges of malfeasance in office, finding that the collector’s failure to pay over the funds within five days after the first of each month was a violation of a statute cited in the information, Ark. Stat. Ann. § 84-1401 (Repl. 1980), and that the misdemeanor penalty was provided by the next section, § 84-1402, also cited in the information.
The court’s ruling was in error. That the two sections happen to have been compiled successively in the annotated statutes does not mean that they are closely related. Quite the contrary. The penal section, § 84-1402, was enacted in 1883, when there were in circulation paper currency, national bank notes, warrants, and scrip that were not worth their face value. The section specifically required the collector to pay his various collections into the county treasury in kind: that is, in the same form in which he received them. The section provided that his failure to do so subjected him to a $100 fine and subjected his official bondsman to liability “for the difference in value between the funds received and those paid” into the treasury. We so construed the 1883 statute in Newton County v. Phillips, 181 Ark. 177, 25 S.W.2d 419 (1930), where the collector had received cash but had deposited depreciated scrip instead.
The other section ci ted in the information, § 84-1401, is part of Act 282 of 1935. That act comprises nine sections and simply defines the routine for the payment of taxes and for the handling of the funds by the collector and other county officers. Section 7 of that 1935 act does require the county collector to deposit his collections monthly with the treasurer, but there are no pertinent criminal penalties for his failure to do so. Thus the trial court was mistaken in holding that such a failure is a violation of the 1883 statute requiring the collector to make his deposits with the county treasurer “in kind.” We find no indication in any statute that the collector’s failure to deposit his collections promptly is in itself a criminal offense.
The judgment is affirmed with respect to the conviction for theft, but with respect to the misdemeanor convictions the judgment is reversed and the charges are dismissed.
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Mehappy, J.
The plaintiff brought suit in the circuit court, alleging that the defendant had agreed to pay 5 per cent, of the total cost of the proposed work for his services as an architect in preparing plans and specifications for remodeling a house in Jonesboro; that the total cost of the proposed work was $6,890.60; that the fee to appellee at 5 per cent, was $344.53, upon which there had been a payment of $200, leaving a balance of $144.53, and asked judgment for that amount.
Defendant answered, denying that he entered into the agreement as alleged by plaintiff, and alleged that he instructed the plaintiff that the plans and specifications must entail a cost of not more than $4,000, that the plans and specifications prepared would have required the expenditure of a much greater sum, and that, for that reason, they were worthless to defendant; that the $200 paid plaintiff was in full settlement and satisfaction of all amounts. due.
The testimony is conflicting, the plaintiff’s testimony tending to establish the allegations of his complaint, and that of the defendant tending to establish the allegations of the answer.
Appellant’s first contention is that the court erred in not directing the verdict for the defendant, and this, it is contended, the court should have done because appellant contends that the last payment of $50 that he made plaintiff was given in full satisfaction and settlement of all amounts due. The plaintiff, testifying on that question, said in substance that he never agreed to accept $200 in full payment; that he called Mr. Knight, and also went to his house and got the last check, and told him that he still considered that he owed him $144.
The defendant testified that .the last check he gave him was some time in March, and after he' learned that the lowest bid on the work was $6,000; that defendant was sick in bed for about á week, and, realizing that the plaintiff would want some money, called him up and stated to him that if he would send up to the house he would give him a check; that the plaintiff asked him to please make it as liberal as possible; that the defendant told him he owed him $50 and would send him $50 in full payment, and that plaintiff said, “You owe me more than that,” and defendant told him that was all he owed him and all that he was going to pay; that plaintiff came up to the house, and that he told plaintiff that that was all he was going to pay. “I told him that, when I handed him the check, that it was in full payment. He took the check and cashed it. When I handed him that last check I told him I was paying him in full; I told him that was all I- was going to pay, and he stated he was going to sue me, and I said ‘That is all you can do.’ He then. accepted the check and went out with it, but he told me at the time he was going to sue me. I told him at the time that he took the check that it was in full settlement. He went out and cashed'it.”
The above is practically all the testimony on the question of the last payment, and the real question in the case is whether or not, as a matter of law, it was such a settlement as would bar any recovery of any further sum. If that evidence showed accord and satisfaction, then the instruction should have been given; if not, it should not have been given.
“Where a claim is not a money demand, or, if so, is unliquidated, or, if liquidated, there is a bona fide dispute as to the sum actually due, or a bona fide doubt or controversy as to whether anything is due, then an accord and satisfaction may be established and held binding, though there is a payment of a less sum than that claimed by the creditor, or even a less sum than, on an actual computation, might be found due to the creditor. The adequacy of the payment is entirely immaterial, and will not be inquired into even by a court of equity. Of course there must be an acceptance by the creditor of the money offered in full discharge of the claim. This acceptance, however, may be implied as well as express. Thus, if the debtor tenders the amount he claims to be due, but upon the condition that it be accepted in discharge of the whole demand, and it is accepted, there is an accord and satisfaction, on the principle that one accepting a conditional tender assents to the condition. And the fact that the creditor protests against accepting the tender in full payment will not prevent the transaction from constituting a good accord and satisfaction when the debtor still insists that it must be accepted in full payment or not at all. * * * To constitute an accord and satisfaction in law, dependent upon the offer of the payment of money, it is necessary that the offer of money be made in full satisfaction of the demand or claim of the creditor and be accompanied by such acts or declarations as amount to a condition that,- if the money is accepted, it is to be in full satisfaction, and be of such a character that the creditor is bound to so understand the offer.” R. C. L., 194. «
In a note in 20 L. R. A., 800, is the statement from a Kansas case on this subject, which is as follows: “In St. Louis, Ft. S. & W. R. Co. v. Davis, 35 Kansas 464, when the question arose upon the claim of the appellee for services, which the appellant claimed was satisfied by an accord and satisfaction by receipt by the appellee of a smaller sum than claimed, forwhich a receipt was given ‘in full for all services rendered,’ the appellee claiming that, at the time of signing and giving the same, he protested both verbally and in writing that it was not a complete satisfaction, and that he still claimed compensation for services in other named cases, which were those involved in the present action, the court held that the part payment was no extinguishment of the debt, stating that, before the payment could operate as a satisfaction, it must not only appear that there was some new consideration for the agreement to accept a smaller sum in extinguishment, but also that there was a mutual agreement that the same should be accepted in discharge of the entire debt. ’ ’
The defendant in the case at bar made his payment with the statement, according to his testimony, that it was in full payment, but he did not state that it must be accepted in Ml payment or not accepted at all. We think that he would have to make it clear to the creditor that, if accepted, it must be accepted in full satisfaction. While he told the plaintiff that it was all he was going to pay and it was a payment in full of all he owed him, the plaintiff disputed this, stating that he owed him more, and that he was going to sue him. The defendant did not pay him on condition that he accept it in full satisfaction of the debt.
It was said in a recent, case by this court: “But appellee did not, in its letter, or in its statement of the account, or in the check, give the appellant to understand that an acceptance of the check and cashing of the same would be considered by the appellee as a recognition by the appellant of appellee’s claim for damages and an approval and settlement thereof. The burden was upon the appellee to prove the contract of accord and satisfaction. It was essential for it to show either an express agreement upon the part of the appellant of accord and satisfaction, by which the amount of appellant’s claim against the appellee was settled, or else to prove facts and circumstances by which an agreement on the part of the appellant to settle its account by allowing the claim of the appellee for damages could reasonably be inferred. There is nothing in the statement of facts to indicate a meeting of the minds of the parties upon any such terms. There is nothing to justify the conclusion that the appellant was notified by the appellee that, if the appellant cashed the check, it would do so with the understanding that appellee’s claim for damages had been allowed and that appellant’s account against the appellee had in that manner been satisfied.” Western Union Tel. Co. v. Ark. Milling Co., 156 Ark. 370.
In the case at bar the appellee not only did not receive the check, agreeing that it was a satisfaction of the claim, but he stated at the time that he was going to sue appellant for the balance, and, while appellant told appellee that it was in full settlement, he did not tell him, and, we think, did not say anything to justify appel lee to think or believe that, if he accepted the check, he would accept it on that condition that it was a full satisfaction. If defendant had offered the payment on condition that it was a full settlement and appellee had accepted it with this condition, this would have been a complete settlement, and a bar to a recovery.
Appellant complains at the action of the 'court in giving instructions and in refusing instructions requested by appellant. All the objections, however, are general, and there are no specific objections, and, while some of the instructions requested by the appellant correctly stated the law, yet we do not think there was any error, for the court fairly instructed the jury oii all theories of both parties, and the question of whether there was accord and satisfaction, as well as other questions of fact, were matters for the- jury to determine, and we cannot disturb their verdict if there is any substantial evidence to sustain it. We think the evidence was sufficient to sustain the verdict, and the judgment must he affirmed.
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Hart/ J.
Reves Sloan prosecutes tliis appeal to reverse a judgment against him for seduction.
Under our statute, the defendant in a seduction case shall not he convicted upon the testimony of the prosecuting witness unless corroborated by other evidence as to the promise of marriage and the fact of sexual intercourse. Lasater v. State, 77 Ark. 468, 94 S. W. 59; Bethel v. State, 162 Ark. 76, 257 S. W. 740; Jones v. State, 166 Ark. 324, 266 S. W. 262; and Babers v. State, 168 Ark. 1055, 272 S. W. 659.
The prosecutrix testified to the promise of marriage and seduction. It is earnestly insisted, however,' that her testimony is not sufficiently corroborated. Under the authorities cited above, the corroboration is sufficient if it consists of such facts'or circumstances as tend to support the testimony of the prosecuting witness and shall satisfy the jury that she was worthy of credit.
In the ease at bar, the prosecuting witness testified that she yielded to the defendant because she loved him, and he promised to marry her. As a result of their illicit intercourse, a child was born to her on November 5, 1925, when she was about sixteen years of age.. The last intercourse that she had with' the defendant was on the 5th day of February, 1925, and all this occurred in Crawford County, Arkansas.
According to the testimony of Joe Webb, the defendant and the prosecuting witness kept company from 1923 to early in 1925. About the first of February, 1925, the defendant told the witness that the father of the prosecutrix was raising a little hell, and that he was going to get the chance to raise a little more pretty soon. Soon after this the defendant quit going with the prosecuting witness.
Another witness testified that the defendant admitted, on the witness stand in a camal abuse case, that he had had illicit intercourse with the prosecuting witness. It was shown that, for two years, the ‘defendant and the prosecuting witness constantly kept company together, and that the .other boys quit going with the prosecuting witness.
The prosecuting witness testified that she had her wedding dress made about a certain date, and another witness testified that she knew the dress had been made for the prosecuting witness. When all these facts are considered in connection with the testimony of the prosecutrix, we think the evidence was legally sufficient to support a judgment of conviction.
The next assignment of error is that the court erred in giving instruction No. 3, which tells the jury that it is necessary to prove that a woman has illicit intercourse with a man other than the defendant in order to prove that shé is unchaste. We do not think so. The instruction only means to tell the jury that the statute considers that women are chaste, -and imposes on the defendant in a seduction case the burden of showing to the contrary. This is in accordance with the law laid down in Wilhite v. State, 84 Ark. 67, 104 S. W. 531. We do not deem it necessary to copy the instruction in the opinion. In addition to what wo have said, it may be stated that, if the defendant thought the instruction was calculated to mislead the jury, he should have made a specific objection to it. When the instructions are considered as a whole, it clearly intended to instruct the jury in accordance with the principles of law laid down in the cases cited above.
The next assignment of error is that the court erred in permitting a witness for the State to testify that she made a dress for the prosecuting witness and that the prosecuting witness told her for. what purpose the dress was being made. An examination of the record shows that the prosecutrix testified that this witness had made a wedding dress for her. The witness was not allowed to state what the prosecutrix had told her, but was only allowed to testify that she had made a dress for the prosecutrix. In a prosecution for seduction, it is not erroneous to permit the prosecutrix to testify as to her preparations for the wedding. Jones v. State, 166 Ark. 324, 266 S. W. 262. As we have just seen, the witness was only permitted to testify that she made the dress, and was not permitted to state what the prosecutrix told her the dress was made for. Hence this assignment of error is not well taken.
The last assignment of error relates to the circuit court’s action in refusing- to receive a verdict which assessed a fine of $500 against the defendant. Our statute provides that any person convicted of seduction shall be imprisoned in the penitentiary not less than one year nor more than ten years, and fined in any amount not exceeding $5,000. Crawford & Moses’ Digest, § 2414.
When the jury brought in the verdict imposing a fine and leaving off imprisonment in the State Penitentiary, the court told the jury that this verdict could not be accepted, except by agreement on both sides, and instructed the jury to return to their jury room with the following statement: “Gentlemen, you will have to go back to your jury room and fix this penalty.”
The court had already told the jury, in its original instructions, what punishment was imposed by the statute f-ór the crime. When the court refused to receive the verdict finding the defendant guilty and fixing his punishment at a fine only, and told the jury to go back and fix the penalty, it evidently had in mind the punishment fixed by statute, and did not in any wise attempt to direct the jury to return a verdict of guilty, nor did it in any wise express an opinion upon the weight of the evidence. The court simply meant to tell the jury that, if it found the defendant guilty, it had no discretion in the matter of fixing punishment except within the limits of the statute. If counsel for the-defendant thought otherwise, he should have made a specific objection to the ruling of the court, and no doubt the court would have made the matter as plain to the jury as the defendant had requested.
We find no reversible error in the record, and the judgment will therefore be affirmed.
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McHaney, J.
Appellee,'Charles Clements, instituted this action against appellant to recover on a written contract between the parties whereby appellant undertook to guarantee the payment of a sum of money not to exceed $1,000, due by Booneville Marble & Granite Works of Booneville, Arkansas, to appellee. The contract is as follows:
“Booneville, Arkansas, May 31, 1922.
“To Chas. Clements,
258 Boyleston St.,
Boston, Mass.
“We, the Citizens’ Bank, guarantee the payment of a sum not to exceed $1,000, one thousand dollars, payment for monument No. Clements 60772, purchased by the Booneville Marble & Granite Works of Booneville, Ark., on the following conditions: That the monument is to be cut strictly in accordance with the blue-prints approved by the said Booneville Marble and Granite Works and submitted to the above named Charles Clements for the execution of same.
“Further, that this amount shall cover all expenses connected with the purchase of material of which the monument is to be cut, also the material for a marker ordered this date. All monument and marker to be loaded on board cars at Boston, Mass.
“The Citizens’ Bank understands that the purchase price for this work is not due until a period of sixty days from date of invoice with bill of lading.
“Citizens’ Bank,
“By Chas. X. Williams, Cashier.”
Written at bottom with pencil: “4/27/23. New draft for $464.17.
“Made and passed to Inter. T. Co. to be collected and sent along with the $500 check.
“4/27/23.
“Check for $500 passed Inter. Trust Co. for collection. ’ ’
Appellant is a banking corporation of Booneville, and is engaged in the business of operating an ordinary bank. Charles X. Williams was its cashier, and had authority from the board to perform the usual and customary duties of cashier, and to make loans and discount paper for the bank up to $1,000 at that time. Later his authority in this regard was reduced to $500. There was no meeting of the board to authorize the cashier to execute this contract, and no officer or director, except the cashier, had any knowledge that it had been executed, until about the time this suit was brought, and no specific authority .was ever given by the board or any officer to the cashier to execute same.
Appellant defended on the ground that its cashier had no authority to make such a contract, and that his doing so failed to bind the bank.
At the conclusion of the testimony the court directed a verdict for appellee for the balance due in the sum of $464.17, with interest, and the bank has appealed.
The articles of incorporation of the Citizens’ Bank of Booneville were not offered in evidence, and we cannot know just what the general nature of the business of the corporation is, as set forth therein. But we do know that the powers of a banking corporation and its officers have been very much limited and circumscribed ■by the Legislature during the past few years. As an example, § 695 of Crawford & Moses’ Digest prohibits a bank from engaging in trade or commerce and from buying its own stock. Many other provisions of law are made for the protection of stockholders and depositors. Section 700 reads as follows: “The president, cashier or other officer or employee shall have no power to indorse, sell, pleclg-e or hypothecate any notes, bonds or other obligations received by said corporation for any money loaned until such power and authority shall have been given such president, cashier or other officer or employee by the board of directors, a written record of which proceeding shall first have been made; and all acts of indorsing, selling, pledging and hypothecating done by said president, cashier or other officer or employee, without the authority from the board of directors, shall be null and void. ’ ’
While.this section was amended in 1923, it was the law when the contract in controversy was executed. It is difficult to perceive why the officers of a bank should be prohibited by law from transacting the business enumerated in this section without first getting authority from the board, a record of which must be made, and yet permit the cashier to bind the hank by guaranteeing the debt of another, which, apparently, is in no way connected with the bank’s business, without authority of the board. When we consider the interest the depositors have in the success of the bank, and the interest of the stockholders, due to their hope of profit and the imposition of double liability, in the event of insolvency, we can readily see that the law should circumscribe, limit, and restrict the powers of the officers to involve the stockholders and depositors in hazardous undertakings.
It is the rule in this State, and is the general rule laid down by the authorities, that “the guaranty by a bank, without benefit to itself, of the debt of another, in which it has no interest, is beyond its powers.”
Mr. Miehie, in his work on Banks and Banking, vol. 1, p. 681, says: “The guaranty by a bank, without benefit to itself, of the debt of another in which it has no interest, is beyond its powers. For a bank has no power to make a guaranty except for the protection of its own rights, or as an incident to the transaction of its' own ■business, unless specially authorized by law. But for its own protection or incidentally to transacting its own business, it may give a guaranty.’ ’
A long list of cases is cited by the author to support this declaration of law.
Again, the same author, on page 745, § 105, uses this languag-e: “A bank has no authority to lend its credit; hence it is not within the power of the cashier to bind- it upon a contract of guaranty or suretyship for the accommodation of third persons and with respect to matters in which it has no interest. ’ ’
In vol. 3 jR. C. L., ^ -53, page 425, it is said: “A banking corporation cannot lend its credit to another by becoming surety, indorser or guarantor for him. It cannot, for the accommodation of another, indorse his note or guarantee the performance of obligations in which it has no interest. Such an act is an adventure beyond the coniines of the banking business, and, when its true character is known, no rights grow out of it, though it has taken on in part the garb of a lawful transaction; and this applies to national banks.”
But, if the contract of guaranty is for the bank’s own protection, or is incidental to the transaction of its own business or for its own benefit, it may give a guaranty.
This court recently had this same question under consideration in the case of Bank of Morrilton v. Skipper, Tucker Company, 165 Ark. 49, 263 S. W. 54, and, in substance, held that the bank had authority to execute a con tract of guaranty if it was for its own benefit in the prosecution of its authorized business. The court, on page 57, used this language: “The court properly submitted to the jury the question of the authority of appellant, as a banking institution, to execute the contract of guaranty, on the ground that it was a contract for its own benefit in the prosecution of its authorized business. There was no error in that regard.” '
We think it is fairly deducible from the evidence that the members of the partnership known as the Booneville Maride & Granite Works were customers of the bank, and that perhaps the bank might have had some interest in making this contract of guaranty, although it is not definitely shown by the evidence in this case, and that this was a question for the jury to determine on proper instructions from the court, both as to the authority of the cashier to make the contract in the first instance, and as to whether the contract of guaranty was for its benefit in the prosecution of its authorized business.
The circuit court therefore erred in directing a verdict for the plaintiff, and the judgment will therefore be reversed, and the cause remanded for a new trial.
It is so ordered.
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Mehaffy, J.
The appellant, plaintiffs below, filed in the Arkansas Circuit Court the following complaint: That on or about the 8th day of July, 1921, the plaintiffs and the defendant, William E, Chadiek, entered into a contract by tbe terms of which the plaintiffs agreed to sell and deliver, subject to the conditions contained in said contract, to the defendant, William E. Chadick, plaintiffs’ product in reasonable quantities as ordered by the defendant. The relationship of vendor and vendee, according to the terms of this contract, were to continue for so long as the contract remained in force.
By the terms of said contract the said William E. Chadick agreed to pay Furst & Thomas for all goods sold to him by them the usual wholesale price thereof, and further agreed to pay all unpaid balances due from him to them at the time of the execution of said contract, the terms and conditions of said payments being more definitely set out in the duplicate copy of said contract, which is hereto attached and made a part hereof. The said contract above referred to was subject to acceptance by the plaintiffs, Furst & Thomas, and the same was duly accepted by them on the 2d day of August, 1921.
Shortly after the execution of the said contract the plaintiffs began shipping to the defendant, William E. Chadick, under instructions and orders from the said William E. Chadick, and in accordance with the contract above referred to, merchandise and products of the kind contemplated at the time of the execution of said contract. That the said William E. Chadick continued to purchase merchandise and products from the plaintiffs from that time until the 24th day of December, 1923. On or about the time the purchases aforesaid began to be made by the defendant, William E. Chadick, he, the said defendant, began to make remittances to the said Furst & Thomas, and continued to do so up until the 3rd day of January, 1924, but that no further payments have been made upon said account since that date. The unpaid balance of indebtedness for goods, wares, merchandise, as above set out, due from the defendant, William E. Chadick, to the plaintiff is the sum of $1,376.76.
As a part .of the said contract the defendants, A. A. Hartzell, Charles F. Kuehen and J. A. Owen, executed a joint and several guaranty in favor of Furst & Thomas for the purpose of guaranteeing the faithful performance of the contract above referred.to by the codefendant, William E. Chadiclc, and to guarantee payment by him of the purchase price of all goods furnished to him on credit, as provided in said contract. The said guaranty also extended’ to any balance on his account for goods previously purchased by him and remaining unpaid at the date of the acceptance of the contract herein referred to.
As a further condition of said guaranty, the three defendants, A. A. Hartzell, Charles F. Kuehen and J. A. Owen, agreed that, three months from and after the termination of the agreement above referred to and the nonpayment of his account by William E. Chadiek, the guaranty of said account by said three defendants shall become absolute as to the amount clue from him, and the said three defendants agreed to pay any indebtedness of the said William E. Chadiek due the plaintiffs, Furst & Thomas, without any proceedings having to be taken against the said William E. Chadiek. That a period of time in excess of three months has expired since the termination of said contract. A copy of the contract aforesaid and the bond aforesaid is hereto attached, marked Exhibit A and made a part hereof.
A certified statement of account is hereto attached and marked Exhibit B. That an itemized statement of account is hereto attached and marked Exhibit C.
Attached to complaint as Exhibit A was the following contract:
“This contract, made and entered into at Freeport, Illinois, this 6th day of July, 1921, by and between Frank E. Furst and Fred Gr. Thomas, copartners, doing business under the name of Furst & Thomas, of Freeport, Illinois, and Wm. E. Chadiclc of Stuttgart, Arkansas, hereinafter called the salesman, witnesseth:
“That, upon acceptance of, this contract, Furst & Thomas agree to thereafter, unless prevented by strikes, fires, accidents, or other causes beyond their control, sell and deliver to the said salesman, on hoard cars at Free-port, Illinois, or, at their option, at their nearest branch warehouse, at their current wholesale prices, their products in reasonable quantities as ordered by him, so long as this contract is in force and his account is in satisfactory condition. Furst & Thomas also agree to give the salesman free advice and suggestions through bulletins, booklets and letters as to the best methods of selling to consumers the goods purchased by him under this contract, but it is expressly agreed that nothing contained in such advice and suggestions shall be binding upon the salesman nor shall be construed as in any way altering or modifying the terms of this contract.
“The salesman agrees to pay Furst & Thomas the regular wholesale price for all goods sold to him by them, including any balance on his account for goods previously purchased by him and remaining unpaid at date of acceptance of this contract, in the following manner, to-wit: On the installment plan, by paying to said Furst & Thomas in cash, each week, a sum equal to not less than one-half his total cash sales and collections from such goods during said week; provided, that the salesman may be required, at the option of Furst & Thomas, to pay not less than the wholesale price of certain products designated by them and sold by him for cash or collected for during said week; provided that, by paying his account in full on or before the tenth day of each month, said salesman shall receive a discount of 3 per cent., if he remits cash in full with each order, he shall receive a discount of 5 per cent, from their current wholesale prices.
“As a matter of good faith and to show what the receipts of his business are from week to week, he agrees to send to Furst & Thomas each week a correct and fully itemized record of his business on forms provided for that purpose by them. Either party shall have the right to terminate this contract by giving written notice to the other party; provided that, if the sale or purchase of goods under this contract be permanently discontinued for any reason, it is thereby terminated, and, upon its termination from any cause by either party, the salesman agrees to settle within three months the balance due said Furst & Thomas on account; provided that the salesman shall have the privilege of returning promptly, after termination of contract, to Furst & Thomas, at Freeport, Illinois, by prepaid freight, his stock of unsold goods, and for- all goods so returned by the salesman in ■original, unopened bottles and packages, Furst & Thomas agree to allow credit at the price originally charged after deducting the cost of checking, handling and putting such goods back into stock, and if, on final accounting, any balance is due the salesman, to pay the same promptly.
“This contract is subject to acceptance by Furst & Thomas at their home office in Freeport, Illinois, and, when so accepted, shall immediately be in force and effect.
“Accepted at Freeport, Illinois. 8-2-1921. Furst & Thomas.
“Salesman sign here in ink. William Chadick.”
The defendant, Wm. E. Chadick, filed separate answer, which was as follows':
“Defendant admits that-he signed the- contract mentioned and described in plaintiff’s complaint and admits that the copy of said contract annexed to plaintiff’s complaint as Exhibit A thereto is a correct copy thereof. Defendant denies that any relation existing between this defendant and the plaintiffs, by reason of said contract, was that of vendor and vendee. Defendant denies that he was to pay for all goods delivered to him by the plaintiffs, but states that he was to pay for only such goods as were delivered to him and by him sold and delivered to the purchasers. Defendant denies that any of the goods delivered to him were purchased by him, but states that all -goods so delivered to him were consigned to him to be sold, and that all goods so delivered to him, remaining unsold at the termination of the contract, were to be by him returned to the plaintiffs. That all goods delivered to defendant by the plaintiffs were manufactured by and were the property of Furst-McNess Company; that Furst & Thomas, in delivering said goods to the defendant, were acting merely as agents for and on behalf of said Furst-McNess Company, and that all deliveries so made by Furst & Thomas to this defendant were in truth and in fact made by said Furst-McNess Company. That Furst-McNess- Company is a corporation, organized and existing under and by virtue of the laws of the State of Illinois, with its principal place of business in Freeport, Illinois. That said Furst-McNess Company has failed to file with the Secretary of State for the State of Arkansas a copy of its charter,’ and has failed to file a statement of its assets and liabilities, and has failed to designate its general office in the State of Arkansas, as is required by § 1826 of C. & M. Digest. That said Furst-McNess Company has failed to file the resolution of its board of directors and has failed to designate an agent for service in this State, as is required by § 1827 of C. & M. Digest. That said Furst-McNess Company has wholly failed to comply with the laws of the State of Arkansas permitting* foreign corporations to do business in Arkansas, and was not and is not authorized to do business in Arkansas.
“That Frank E. Furst, one of the plaintiffs herein, was, at all times herein mentioned, and is now, the president of Furst-McNess Company and a large stockholder therein; that Fred G. Thomas, one of the plaintiffs herein, was, at all times herein mentioned and now is, vice president of Furst-McNess 'Company and a large stockholder therein. That the firm of Furst & Thomas was organized at the same time Furst-McNess Company was founded, and was organized for the sole purpose of distributing the products manufactured by Furst-McNess Company. That Furst & Thomas are the agents of Furst-McNess Company, and, in making the contract with this defendant and in delivering the goods to this defendant, acted for and on behalf of said Furst-McNess Company, and the contract when made was, in truth and in fact, a contract between this defendant and said Furst-McNess Company, and that this defendant, in the handling and selling of the products delivered by Furst & Thomas, was acting as the agent of said Furst-McNess Company. That all sales of the goods so delivered to him as aforesaid were had and made by this defendant in the State of Arkansas, as the agent of Furst-McNess Company in the State of Arkansas, in violation of the statute in such cases made and provided.
“ Defendant denies that he is indebted to plaintiffs in the sum of $1,376.76, or in any other sum and amount, and, having fully answered, he asks that the complaint as to him be dismissed and that he have judgment for his costs.”
The other defendants also filed separate answers, but it is not necessary to set them out. The appellant-does not abstract any of the evidence, but sets out the instructions of the court, both those given and refused, and also motion for a new trial and judgment. Appellants do not abstract the testimony, for the reason that it does not ask any reversal of the judgment by any reference to the testimony, but relies solely on the law, and states that, whether or not the contract sued upon is subject to the terms of what we know as the ‘‘Wingo act” (Acts 1907, p. 744) relating to nonresident corporations, is determinative of the question to be raised here.
Appellants admit that, if the contract set-forth above is a contract of agency by Furst & Thomas or the company manufacturing the products referred to in the contract, then their contention must fail. But they say, on the other hand, if it is a contract of purchase and sale, then it refers to interstate commerce, and appellant would be entitled to recover. That is, they could if it is a contract of purchase and -sale, and not ambiguous, then it was the duty of the trial court to instruct for the appellant, without submitting any questions of fact to the jury. It therefore becomes unnecessary to determine or decide any questions except whether the contract sued on is a contract of purchase and sale or a contract of agency, or whether it is so ambiguous as to permit evidence to determine the effect of the contract, whether it is one of purchase and sale or one of agency.
The first part of the contract, when considered alone, would be construed as a contract of purchase and sale. The question, then, is whether the other parts of the contract render it ambiguous. This court has several times decided the question involving contracts somewhat similar to the one here involved, and it may be conceded that, if the contract is unambiguous, it is the province of the court to construe it and declare its purport.
In the case to which attention is called by appellant, in 115 Ark. 166, 171 S. W. 136, the contract there dealt with provided for the appointment of Clark as a traveling salesman for its products iu the territory described, and no other, and agreed to furnish its products at place of shipment to said traveling salesman at such times and in such reasonable quantities as he might order, to be charged to him, in accordance with the company’s price list current, etc. The medical company promised to take back all goods left in possession of the traveling salesman at the time he quit work. These are substantially the same provisions as in the contract involved here. In the case mentioned they also had an obligation of sureties, as they have in this case. The court, among other things, stated in the case referred to:
“In construing a contract we may consider the construction which the parties themselves have placed upon it and the action they have taken in executing its provisions. These rules of construction, however, are not available where the terms of the contract are unambiguous. Where the terms of the contract are unambiguous, it is the province of the court to construe the contract and to declare its purport; and appellee insists that that duty here devolved upon the trial court, and that that court correctly construed the contract as one of sale, and not as a mere appointment of an agent. * * * It is clear that, if the contract between the parties constitutes a sale of the commodities there mentioned, there can be no doubt that the court correctly directed a verdict in favor of appellee. But the evidence upon that question is not so undisputed that it may be said as a matter of law that the contract constituted a sale of goods, and not an agency.” Clark v. J. R. Watkins Medical Co., 115 Ark. 166, 171 S. W. 136.
The court reversed and remanded the above case, with directions to submit the questions of agency to the jury, with directions to render a verdict for the appellee if they find the relationship between litigants was that of vendor and. vendee, rather than that of principal and agent. The court in the above case reviewed the authorities and held that the contract in that case was such as to be a question of fact for the jury as to whether the litigants were vendor and vendee, or whether the contract created an agency.
The contract of J. it. Watkins Medical Company was ag’ain before this court, and it was there held that the evidence was legally sufficient to support the finding that the business out of which this litigation arose was appellant’s and that appellee was but his agent. J. R. Watkins Co. v. Williams, 124 Ark. 539, 187 S. W. 653.
In the case of W. T. Rawleigh, Medical Company v. Holcomb, 126 Ark. 597, 191 S. W. 215, the court called attention to the fact that, while there were points of similarity between that case and the J. R. Watkins Medical Company case, it did not find the uncertainty, in the relationship of the parties which was developed in the proof in the other case. The agreement in the case of the Rawleigh Medical Company v. Holcomb is somewhat different from the contract in the present suit. The agreement mentioned the medical company as party of the first part, and Holcomb as party of the second part, and not as salesman, and there was nothing in that contract to indicate that he was a mere salesman, and instead of letting him return the goods, in that case, the company agreed to repurchase, at wholesale prices, the goods that the second party had on hand, if they were in as good salable condition as when originally sold to him, provided that the second party, on repurchase, pay the company’s actual expenses of receiving, inspecting and overlooking all such goods. It is also provided in that contract that that instrument constituted the sole and entire agreement. W. T. Hawleigh Co. v. Holcomb, 126 Ark. 597, 191 S. W. 215.
The contract in the case now before the court expressly states that it is a contract between Furst & Thomas and Wm. E. Chadick, called the salesman. Then they agreed to give the salesman free advice and suggestions through bulletins, booklets and letters as to the best method of selling to consumers the goods purchásed by him under this contract. It states that the salesman agreed to pay, etc.
Another thing about this contract is that he does not agree to pay Furst & Thomas, except according to cash sales and collections. It appears from the contract that he receives and sells them, and, after the goods have been sold, he is then to make payment, and, upon the termination of the contract, the salesman is given the privilege of returning promptly his stock of unsold goods.
We think therefore it was clearly a question of fact for the jury to determine whether the contract was one of agency or one of purchase and sale. There seems to be a very clear distinction between this contract and the contracts the court has held were free from ambiguity. It is such a contract and of such doubtful meaning that the court cannot say as a matter of law that it is not a contract of agency. We think the question is thoroughly settled by the former decisions of this court, and the circuit court did not err in submitting the question to the jury, and, this-being the only contention of the appellant here, the judgment is affirmed.
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Humphreys, J.
This suit was instituted in the circuit court of Clark County by appellee against appellant to recover damages in the sum of $225 on account of a sale and purchase of “Japanese Seeded” cane seed, intended to grow cane for making molasses, which proved worthless for that purpose. It was alleged in the complaint that appellants sold appellee seed which they represented to he a variety of sorghum known as “Japanese Seeded,” 'suitable for making molasses; that appellee purchased said seed to grow cane to make a crop of molasses, and that appellants knew appellee’s purpose in .buying the seed at the time of the sale; that said seed was not “Japanese Seeded” sorghum seed,- hut was seed of a variety of plant without-juice, and worthless for making molasses.
Appellants filed an answer, denying seriatim the allegations in the complaint.
The cause was submitted to a jury upon the plead- • ings, the testimony adduced by the respective parties, and the instructions of- the court, which resulted in a verdict and consequent judgment in the sum of $100 against appellants, from which is this appeal.
It will be observed that the allegations in the complaint were broad enough to support a recovery either upon an express or implied warranty.
The testimony introduced by appellee tended to support the allegations of his complaint, and that introduced by appellants tended to disprove each and every material allegation in the complaint.
Appellants’ first contention for a reversal of the judgment is that the court erred in giving instruction number one, which is as follows:
“If you find from á preponderance of the evidence that the defendants warranted the seed sold to plaintiff to be Japanese Seeded cane seed, and that the plaintiff, in reliance on said warranty, bought and planted said seed and cultivated the crop raised therefrom; and if you further find that the seed sold to plaintiff was not Japanese Seeded cane seed and was unfit for growing cane to make molasses, you are told that the plaintiff is entitled to recover from defendants a sum equal to the value of a crop at maturity which would' have been raised from Japanese Seeded cane seed, less the value of the crop actually raised and the cost of cutting the same and having it made into molasses. ’ ’
The first attack made upon the instruction is that it failed to tell the jury that, before appellee could recover, he must have relied solely upon appellants’ alleged warranty. This instruction related to the alleged express warranty upon which appellee sought a recovery. It did not tell the .jury, in so many words, that, before appellee could recover, he must have relied solely on the representation of appellants and not on inspection; but appellee testified that he made no inspection, so this instruc tion properly presented appellee’s theory of his right to recover upon an express warranty, if the jury believed his testimony. It is true that the testimony offered by appellants tended' to show that appellee made an inspection of the seed before purchasing same, but this point was taken care of'by appellants’ third request, given by the court, which is as follows:
“If you should believe from the evidence that plaintiff inspected said seed before he bought them,- and bought them on his own belief, formed from inspection, that they were Japanese Ribbon cane seed, then your verdict will be for defendants.”
Appellants are not in a position to assail instruction number one because it did not contain their theory in the case, when their theory was clearly and correctly submitted to the jury in a separate instruction given at their own request.
The second and last attack made upon instruction number one is that it did not specifically set out what items of expense were to be deducted from the value of a crop raised from Japanese Seeded cane seed. The instruction told the jury that, if they found for appellee, they should deduct from the value of such a crop the cost of growing same and having it made into molasses. This was a correct general measure of damages applicable to the case. The testimony in the case reflected the various items of expense necessary to produce and harvest a crop of molasses, and there is nothing in the verdict and judgment to indicate that appellants did not receive the benefit of all the necessary items incident to producing a crop of molasses.
Appellants’ next and last contention for a reversal of the judgment is that the court erred in instructing the jury upon the law of an implied warranty. The objection is that there is no room for an implied warranty if there was an express warranty in the case. This contention would be sound if the undisputed testimony in the case had shown that there was an express warranty, but both the allegations and the testimony were broad enough, to sustain a recovery upon either an express or implied warranty, so a declaration of law in separate instructions upon both an express and implied warranty did not produce a conflict between the instructions. The instructions were upon different phases of the law, the first being applicable if the jury should find that appellants expressly warranted the seed to appellee, and second, applicable in case the jury should find that appellants sold “Japanese seeded” seed cane to appellee with the knowledge that he purchased same' for the purpose of making a crop of sorghum molasses.
No error appearing, the judgment is affirmed.
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Hart, J.,
(after stating the facts). At the outset it may be stated that all the mortgages show that the cotton was to be planted and grown in the State of Oklahoma, and, by their terms, show that the contracts which they evidence were to be performed there. Hence in construing the mortgages and in determining their priority we must be governed by the laws of the State of Oklahoma. Tallmam v. Union Loan & Trust Co., 161 Ark. 614, 256 S. W. 379; Guardian Life Insurance Co. v. Dixon, 152 Ark. 597, 240 S. W. 25; Wilson v. Todhunter, 137 Ark. 80, 207 S. W. 221; and Nelson v. Forbes & Sons, 164 Ark. 460, 261 S, W. 910.
The first reliance by counsel for the plaintiff for a reversal of the judgment is that, although the two mortgages transferred to Mamie Cleaver were executed before the mortgage on the same property to the plaintiff Bonner, the acknowledgments to these two .mortgages were so defective as to render them invalid as far as the rights of third persons are concerned. The acknowledgments to the two mortgages given by Hill to the Williams Horse & Mule Company and transferred by it to Mamie Cleaver are set out in our statement of facts, and need not be repeated here. A reading of the acknowledgments copied in our statement of facts will show that they are valid under the laws of Oklahoma. The body of each mortgage is in the usual form, reciting that it
is a mortgage, and is signed 'by the mortgagor. It is true that the certificate of acknowledgment is in the form of an affidavit, but the signature of the mortgagor to the mortgage is identified, and the acknowledgment to each mortgage shows that Hill stated that he was the sole and exclusive owner of all the property described in the chattel mortgage, and that every representation in the mortgage was true, and that the mortgage was executed for the purpose of securing a loan of money on the property. An acknowledgment in all essential respects the same as the one in the case at bar has been held valid by the Supreme Court of the State of Oklahoma. First National Bank of Buffalo v. Devore, 110 Okla. 283, 234 P., 734.
It is next insisted that the judgment should be reversed because the description of the property in the mortgages to the Williams Horse & Mule Company, which were transferred to Mamie Cleaver, are void for uncertainty of description of the cotton mortgaged. We do not agree with counsel in this contention. In Wichita Mill & Elevator Co. v. Farmers’ State Bank, 102 Okla. 83, 226 Pac. 870, it was held that a description in a chattel mortgage which is sufficient to put a third person upon inquiry, which, when pursued, will enable him to ascertain the property intended to be included in said mortgage, is good, and parol evidence is admissible in order to show the particular property intended to be covered by the description in the mortgage. In Watson v. Pugh, 51 Ark. 218, 10 S. W. 493, it was held that a mortgage which described the property conveyed as ‘ ‘ eight bales of cotton weighing 500 pounds each, of the crop” which the mortgagor should raise in a designated locality, is not void for uncertainty, where the whole crop did not amount to eight bales. See also Jones on Chattel Mortgages, 5 ed., §§ 55 and 55a.
It will be observed from our statement of facts that the mortgage of Hill to the Williams Horse & Mule Company to secure the $193 indebtedness describes the cotton as 30 acres to be planted and grown by Hill on Mamie Cleaver’s land in Poteau Bottom, LeFlore County, Oklahoma. In the mortgage to secure the $50’ indebtedness the description is 15 acres of cotton to be planted and grown by Hill on Mamie Cleaver’s farm in Poteau Bottom, LeFlore County, Oklahoma. The only element of uncertainty in the mortgage is that the mortgagor might plant and grow on Mrs. Mamie Cleaver’s farm 45 acres of cotton; in which event, no separation' having been made by the parties, it could not be ascertained what particular cotton was covered by each mortgage. According to the testimony of Mamie Cleaver, Hill planted 40 acres of cotton, but about 25 acres of it were overflowed and grew up in weeds and bushes. Hill did not work this part of his crop of cotton. He only worked 15 acres of the amount planted, and the cotton in controversy was grown on the 15 acres.- Each mortgage provides that the cotton is to be planted and grown on Mamie Cleaver’s farm. That part of it which provides that the crop is to be grown on the Mamie Cleaver farm is as much a part of the description as that part referring to the planting of the cotton. When it was shown that the entire crop of cotton thus planted-and grown and subject to the description was not more than 15 acres, the description became definite and certain; hence there was no occasion for its separation from a larger mass.
The record shows that the mortgage to the plaintiff was executed on the same cotton subsequent to the execution of the two mortgages to the Williams Horse & Mule Company and transferred by it to Mamie Cleaver. The cotton obtained by Mamie Cleaver under the two mortgages held by her was not sufficient to pay the mortgage indebtedness, and it follows that the judgment of the circuit court was correct. It will therefore be affirmed.
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Wood, J.
This is an action begun by George Shamis, hereafter called appellant, against Fred Seaman, trustee in bankruptcy of G. I. Shamis, bankrupt, hereafter called the appellee. The appellant filed his complaint in the circuit court of Phillips County, Arkansas, on January 29, 1925, wherein he alleged that he was the owner and entitled to the possession of a Ford touring* car, described by number, of the value of $450. He alleged that the property was in the possession of the appellee and wrong fully detained by him under the false claim that the same was the property of one G. I. Shamis, who was lately adjudged a bankrupt, and that the appellee was the trustee of his estate in bankruptcy. Such was the effect of the complaint and the affidavit in due form for replevin of the car.
The appellee moved to dismiss the complaint, alleging in his motion that he was an officer of the United States Court for the.Eastern District of Arkansas, the appellee being duly elected, qualified and acting trustee in bankruptcy of the estate of G. I. Shamis, bankrupt, and as such had the car in controversy in his possession. Appellee therefore alleged that the circuit court of Phillips County had no jurisdiction of the action, and prayed that same be dismissed. No written answer was filed by the appellant to the motion to dismiss.
The cause was heard, without objection by appellant, upon the complaint and affidavit in replevin and on the motion to dismiss. The court sustained the motion to dismiss, and entered judgment in favor of the appellee dismissing the appellant’s complaint for want of jurisdiction, and directing that the appellant be required to turn over the property to the appellee as trustee in bankruptcy, and, if such restitution were not made, that the appellee have judgment on appellee’s delivery bond in the sum of $450, the alleged value of the car. From that .judgment is this appeal.
No motion for a new trial was filed, and there is no bill of exceptions in the record. Therefore it is apparent that the trial court treated appellee’s motion as a demurrer to the complaint. The court ruled correctly in so treating it. Since the appellant admits, for the sake of argument, that G. I. Shamis was duly adjudged a bankrupt, and that the appellee was duly elected trustee in bankruptcy of the estate of G. I. Shamis, and, as such, took into his possession the car in controversy, the only question is whether or not the circuit court had jurisdiction.
The admitted facts show that the property in controversy was in possession of the appellee as the trustee in bankruptcy. The property had already passed into the possession of the bankruptcy court when the appellant instituted this action. The circuit court therefore had no jurisdiction. The law applicable to the facts pleaded and admitted is correctly announced in syllabus' to Orinoco Iron Co. v. Metzel, 230 Fed. 40, as follows: “As to property within the custody of the bankruptcy court, its exclusive jurisdiction over the general administration of the bankrupt’s estate carries with it exclusive authority to determine, not only the claims of creditors, but also adverse claims, whether by way of ownership or paramount liens.” Numerous authorities to support the doctrine thus announced are cited at page 44 of the opinion. In Taubel-Scott-Kitzmiller Co. v. Fox, 264 U. S. 426,68 Law. Ed. 425, at p. 434, the Supreme Court of the United States says: “Where the bankruptcy court had possession, it could, under the act of 1898, as originally enacted, and can now, determine in a summary proceeding controversies involving substantial adverse claims of title under subdivision (e) of § 67, under subdivision (b) of § 60, and under subdivision (e) of § 70. But in no case where it lacked possession could the bankruptcy court, under the law as originally enácted, nor can it now (without consent), adjudicate in summary proceeding the validity of a substantial adverse claim. In the absence of possession, there was, under the bankruptcy act of 1898, as originally passed, no jurisdiction, without consent, to adjudicate the controversy, even by a plenary suit. ’ ’ See cases cited in notes 17, 18 and 19.
If this were an action by the trustee in bankruptcy' to determine the title and right to possession of George Shamis, the third party, to the property in controversy, the case would be different, and the authorities cited in brief of learned counsel for the appellant would be applicable. But such is not the case. The judgment of the Phillips Circuit Court is therefore correct, and it is affirmed.
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Wood, J.
Plaintiffs below, appellees here, instituted this action against the defendant helow, appellant here, to recover damages for failure to furnish cars in which to ship coal from appellees’ mine, located near Excelsior, in Sebastian County, Arkansas. Appellees alleged in substance that, in June, 1922, they were operating under a lease a coal mine on which they had expended and were expending large sums of money; that the appellant was an Arkansas corporation, having a line of railroad extending to appellee’s coal mine, over which appellee shipped coal in carload lots; that, about the date above mentioned, when the appellees were preparing to mine and load one car of coal per day from their mine, the cars containing an average of 45 tons of coal each, the appellant demanded of the appellees that they sell to the appellant their output of coal at a price of $3.75 per ton, when coal was selling on the market at a much greater price; that appellant threatened appellees that, unless they sold their output of coal to appellants at the above price, the appellant would refuse to furnish appellees with coal-cars; that appellees refused to accede to the demand of appellant, and appellant thereupon wrongfully refused to furnish the appellees coal-cars to ship the output of their mines, from August 1, 1922, until January 1, 1923, during which time the appellant only furnished to appellees twelve coal-cars. The appellees alleged that the refusal of appellant to furnish coal-cars compelled appellees to shut down their mine. Appellees then set forth in detail the damages alleged to have accrued to them by reason of the alleged wrongful failure of the appellant to fur-nish coal-cars as demanded by the appellees. The concluding portion of the complaint is as follows:
“But for the wrongful failure and refusal of defendant to furnish coal-cars as aforesaid, when and as requested and demanded by the plaintiffs, the plaintiffs would not have been compelled to give up their mine and lease, and plaintiffs could and would have mined, shipped and sold from their said mine from January 1, 1923, to September 1,1923, a period of eight months, twenty cars of coal during each of said months, or a total of one hundred sixty cars of coal during said period, and plaintiffs could and would have realized thereon a net profit of seventy-five dollars per car, or a total profit of twelve thousand dollars.
“The plaintiffs have sustained damages in the total sum of $33,676, as hereinbefore set forth in detail, as approximate result of the defendant’s wrongful failure and refusal to furnish plaintiffs coal-cars when and as requested and demanded by them in which to ship coal from their said mine. Wherefore the plaintiffs pray judgment against the defendant for the sum of $33,676, with interest, for costs of suit, and for all legal relief.”
The appellant demurred to the complaint on the ground that it did hot state a cause of action within the jurisdiction of the court, that “the act of Congress known as the Interstate Commerce Act, as amended by the Transportation Act and other acts of Congress amendatory thereof, confer exclusive authority upon the Interstate Commerce Commission in the matter of distribution of coal-ears and jurisdiction in matters of alleged failure to furnish the same.”
Appellant’s demurrer was overruled, and it answered, denying specifically the allegations of the complaint. It was alleged in substance that, under the orders of the Interstate Commerce Commission, certain rules and regulations adopted by the United States Railroad Administration in December, 1923, were in effect during the period alleged in the complaint. The appellant alleged that the appellees’ mine was what is termed a “wagon-load mine,” in that the coal produced at the mine was hauled in a wagon to the spur or switch-track upon which it was loaded into the cars, and was therefore not rated as mines loaded from a tipple were rated under the rules of the Interstate Commerce Commission. Appellees then set forth certain bulletins issued under the rules and regulations of the Interstate Commerce Commission fixing the rates for tipple mines, which it attached to its answer, and made' exhibits thereto. The appellant alleged that, notwithstanding the appellees’ mine was without a rating for furnishing cars under the orders and rules of the Interstate Commerce Commission,' the appellant did furnish appellees cars in which to load their coal, but, acting under the orders of the Interstate Commerce Commission, when unable to obtain a sufficient supply of open cars or regular coal-cars, appellant furnished to appellees box-cars in which to ship their coal, until the appellees finally refused to use such cars. The appellant further alleged that, from August 1, 1922, to January 1,1923, there was an unusual and unprecedented and unforeseen demand for cars in which to ship coal on appellant’s railroad, and that appellant was therefore unable to supply the demand for cars to ship coal from' wagon-load mines, and was not able to supply the demand for cars to mines that loaded directly into the cars by use of tipple. The appellant also set up that the claim of the appellees for damages accruing one year prior to the filing of the complaint was barred by the statute of limitations.
The testimony is exceedingly voluminous, and we deem it wholly unnecessary to set forth the testimony bearing upon the issue as to whether or not the appellant failed to furnish ears as alleged in the complaint, and, if so, the amount of damages appellees sustained by reason of such failure, because, if the trial court had jurisdiction of the action, we are convinced that the testimony was amply sufficient to sustain the verdict on the issue of whether or not the appellant failed to furnish cars and also as to the amount of damages which accrued to appellees by reason of such failure. The trial resulted in a verdict and judgment in favor of the appellees in the sum of $2,000. Judgment was entered in favor of the appellees for that sum, from which is this appeal.
1. Section 402 of what is designated as the Transportation Act of Congress, February 28, 1920, amends § 1 of the Interstate Commerce Act, approved May 29, 1917, to read as follows:
“(10). The term car service’ in this act shall include the use, control, supply, movement, distribution, exchange, interchange and return of locomotives, cars, and other vehicles used in the transportation of property, including special types of equipment, and the supply of trains, by any carrier by railroad subject to this act.
“ (11). It shall be the duty of every carrier by railroad subject to this act to furnish safe and adequate car service and to establish, observe, and enforce just and reasonable rules, regulations, and practices with respect to car service; and every unjust and unreasonable rule, regulation, and practice with respect to car service is pro-’ hibited- and declared to be unlawful. ’ ’
Paragraph (32) makes it the duty of carriers by railroads to make just and reasonable distribution of cars for transportation of coal among the coal mines served by them, whether located upon their own lines or lines dependent upon them for car supply. When the car supply is not equal to the requirements of the mines, it is the duty of the carriers to maintain and supply just and rea sonable ratings of snob mines and to count each and every car furnished to or used by any such mine for transportation of coal, against the mine, and a penalty is attached for failure to comply with this provision.
Under paragraph 13 the Interstate Commerce Commission is authorized to order any or all carriers by railroad subject to the act to file with the Commission, from time to time, their rules and regulations with respect to car service, which rules and regulations shall be incorporated in their schedules, showing rates, fares and charges for transportation, and making the carrier subject to all provisions of the act.
Under paragraph No. 14 the Commission may, after hearing on a complaint, or upon its own initiative, establish reasonable rules, regulations and practices with respect to car service by railroads subject to the act, and prescribe a penalty for nonobservance of these rules, etc.
Under paragraph 15, whenever the Commission is of the opinion that shortage of equipment, congestion of traffic, or other emergency exists, with or without complaint, or on its own initiative and with or without notice to the carrier, and without hearing or filing of report, it is empowered (a) to suspend the operation of any or all rules, regulations, or practices then established with respect to car service, for such time as may be determined by the Commission; (b) to make such just and reasonable direction with respect to car service, without regard to the ownership, as between carriers of locomotives, cars, and other vehicles, during such emergency, as, in its opinion, will best promote the service in the interest of the public and the commerce of the people, upon such terms of compensation as between the carriers as they may agree upon, or, in the event of their disagreement, as the Commission may, after subsequent hearing, find to be just and reasonable, etc. 41 U. S. Statutes at Large, ch. 91, p. 476, § 402.
By an act of Congress, September 22, 1922, 42 U. S. Statutes at Large, p. 1025, an act was again passed entitled “An act to declare a national emergency to exist in the production, transportation, and distribution of coal and other fuel, granting additional powers to the Interstate Commerce Commission, providing for the appointment of a Federal Fuel Distributor, providing for the declaration of car-service priorities during the present emergency,” etc. Section 2 of that act provides, in part, as follows:
“That the powers of the Interstate Commerce Commission, under the act entitled ‘An act to regulate commerce’, approved February 4, 1887, as amended, including the Transportation Act, 1920, and especially under § 402 of said Transportation Act, 1920, are, during.the aforesaid emergency, enlarged to-include the authority to issue, in transportation of coal or other fuel, orders for priorities in car service, embargoes, and other suitable measures in favor of or against any carrier, * * * and to take any other necessary and appropriate steps for the priority in transportation and for the equitable distribution of coal or other fuel so as best to meet the emergency and to promote the general welfare, and to prevent, upon the part of any person, partnership, association or corporation, the purchase or sale of coal or other fuel at prices unjustly or unreasonably high. This act shall not be construed as repealing any of the powers heretofore granted by law to the Interstate Commerce Commission, but shall be construed as conferring supplementary and additional powers to said Commission and as an amendment to § 1 of the Interstate Commerce Act, and subject to the limitations and definitions of commerce controlled by said act, and all powers given said Interstate Commerce Commission shall be applicable in the execution of this act. ’ ’
Learned counsel for the appellant contend that it was the purpose of Congress, in the above enactments, to vest the Interstate Commerce Commission with supreme power in the matter of distribution of coal-cars, regardless of whether the coal was to be shipped in intra or interstate commerce. Counsel for appellant say: “It is the contention of the defendant that all State statutes and common-law obligations are swept away, as far as the transportation of coal, or the furnishing of cars in which to transport the same, by the provisions of the Transportation Act, and the later emergency act of September 22, 1922.” We cannot agree with counsel in this contention.
Section 8 of the Interstate Commerce Act, 24 Statutes at Large, p. 379 (1 Supp. to Revised Statutes of the United States, 529) provides as follows: “That in case any common carrier subject to the provisions of this act shall do, cause to be done, or permit to be done, any act, matter, or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, ’ ’ etc.
Section 9 provides that “any person or persons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the Commission, as hereinafter provided for, or may bring suit in his or their own 'behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any district or circuit court of the United States of competent jurisdiction. ’ ’
Section 22 provides in part as follows: “And nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.”
These provisions of the Interstate Commerce Act, approved February 4, 1887, were, not repealed, expressly or by implication, by the provisions of the Transportation Act of Congress of February 8, 1920, and the Emergency Act of September 22, 1922, upon which counsel for appellant reliés. On the contrary, the above provisions of §§ 8, 9 and 22 of the Interstate Commerce Act were in full force and effect when appellee’s causó of action is alleged to have accrued. Counsel for the appel lees concede that the cars which it is alleged appellant failed to furnish were ordered for and to be used in interstate shipments. Such 'being the case, the provisions of § 22 of the Interstate Commerce Act supra, confer jurisdiction upon the State court. The question, we believe, is thoroughly settled against the contention of counsel for the appellant by decisions of the Supreme Court of the United States.
In Pennsylvania Railroad Co. v. Puritan Coal Mining Co., 237 U. S. 121, Mr. Justice Lamar, speaking for the court, said: “But §§ 8 and 9, standing alone, might have been construed to give the Federal courts exclusive jurisdiction of all suits for damages occasioned by the carrier violating any of the old duties which, were preserved and the new obligations which were imposed by the commerce act. And, evidently for the purpose of preventing such a result, the proviso to § 22 declared that ‘nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.’ * * * But for this proviso to § 22, it might have been claimed that, Congress having entered the field, the whole subject of liability of carrier to shippers in interstate commerce had been withdrawn from the jurisdiction of the State courts, and this clause was added to indicate that the commerce act, in giving rights of action in Federal courts, was not intended to deprive the State courts of their general and concurrent jurisdiction. ’ ’ It was further declared in that case concerning §§ 8, 9 and 22 of the Interstate Commerce Act, construing the same as a whole, that “it did not supersede the jurisdiction of State courts in any case, new or old, where the decision did not involve the determination of matters calling for the exercise of the administrative power and discretion of the Commission, or relate to a subject as to which the jurisdiction, of the Federal epurts had otherwise been made exclusive.”
And in the case of Pennsylvania Railroad Co. v. Sonman Shaft Coal Company, 242 U. S. 120, Mr. Justice Van Devanter, speaking- for the court, among- other things, said: “Thus we have held that a manifest purpose of the provision in § 22 is to make it plain that such ‘ appropriate common-law and statutory remedies’ as can he enforced consistently with the scheme and purpose of the act are not abrogated or displaced.” Then, after reviewing and reiterating the doctrine of the above case of Railroad v. Puritan Coal Co., supra, and other cases, he further says: “Applying these rulings to the case in hand, we are of the opinion that a State court could entertain the action consistently with the Interstate Commerce Act. Not only does the provision in § 22 make strongly for this conclusion, but a survey -of the scheme-of the act and of what it is intended to accomplish discloses no real support for the opposing view.”
In Texas & Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U. S. 426, at page 446, Chief Justice White, speaking for the court, concerning § 22 of the Interstate Commerce Act, supra, said: “This clause, however, cannot be construed as continuing in shippers a common-law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot destroy itself. The clause is concerned alone with rights recognized in or duties imposed by the act, and the manifest purpose of the provision in question was to make plain the intention that any specific remedy given by the act should be regarded as cumulative when other appropriate common-law or statutory remedies existed for the redress of the particular grievance or wrong dealt with in the act.”
The case of Midland Valley Railroad Co. v. Hoffman Coal Co., 91 Ark. 180, was an action by the coal company against the railroad company to recover damages for an alleged failure of the railroad company to furnish cars for shipment of coal for interstate shipments. The jurisdiction of the State court was challenged in that case, as-it is in this. We quoted the above clause from Railway v. Abilene Cotton Oil Company, and, among other things, said: “The case now under consideration involves the liability of the carrier to the shipper for an alleged breach of its common-law or contractual duty for its failure to furnish cars, and does not involve any infraction of the provisions of the interstate commerce act; and we are of the opinion that the suit was properly brought in the State court. This view, we think, is the logical result to be deduced from the reasoning of the authorities cited above and from the opinion of this court in the case of Holliday Milling Co. v. La. & N. W. Rd. Co., 80 Ark. 536. Hence the court properly overruled the demurrer to the jurisdiction of the court.”
The appellant sets up in his answer and maltes an exhibit thereto various orders and rules of the Interstate Commerce Commission and the rules adopted by the United States Railroad Administration relating to the supply and distribution of coal-cars, which were in effect during the period covered by the appellees’ action. We deem it wholly unnecessary to set out and comment upon these rules and the authorities upon which the appellant relies to support its contention that the State court was without jurisdiction. We have examined all these rules and considered the authorities, and especially the decision of the Interstate Commerce Commission in the case of Interstate Commerce Commission v. Victor American Fuel Co. and Salt Lake Rd. Co., of July 20, 1926, and we are convinced that these authorities have no application. As we construe the complaint, no attack is made by the appellees upon the rules and orders of the Interstate Commerce Commission relating to the supply and distribution of cars by railroads for the shipment .of coal. We cannot discover in the complaint any allegation to the effect that the rules and orders of the Interstate Commerce Commission are unreasonable or' unfair, that these rules themselves result in unlawful or unreasonable practice or in unjust discrimination or undue prejudice to shippers. That would involve an administrative question over which the Interstate Commerce,' Commission alone would have jurisdiction. • ■ • •
As is said in Penn. Rd. Co. v. Puritan Coal Co., supra, at page 131: “In a snit where the rule of practice itself is attacked as unfair or discriminatory, a question is raised which calls for the exercise of the judgment and discretion of the administrative power which has heen vested by Congress in the Commission. It is for that body to say whether such a rule unjustly discriminates against one class of shippers in favor of another. Until that body has declared the practice to be discriminatory and unjust, no court has jurisdiction of a suit against an interstate carrier for damages occasioned by its enforcement. * * * But if the carrier’s rule, fair on its face, has been unequally applied and the suit is for damages occasioned by its violation or discriminatory enforcement, there is no administrative question involved, the court being called on to decide a mere question of fact as to whether the carrier has violated the rule to plaintiff’s damage. Such suits, though against an interstate carrier for damages arising in interstate commerce, may be prosecuted either in the State or Federal courts.”
The Interstate Commerce law which we have quoted above makes it the duty of carriers by railroads to make just and reasonable distribution of cars for transportation of coal among the coal mines served by such carrier, and, when the supply of cars available for service does not equal the requirements of the mines, it is the duty of the carrier to maintain and apply just and reasonable ratings of such mines and count against such mine each and every car furnished for transportation of coal. It is the duty of the carrier, under the Interstate Commerce Act, to furnish safe and adequate car service and to establish, observe and enforce just and reasonable rules, regulations and practices with respect to car service.
This is purely an action against the appellant company for its failure to furnish cars, which is its common-law and statutory duty, both Federal and State. But' the allegations of this complaint show that this action is bottomed upon appellant’s alleged failure to comply with its common-law or contractual, as well as statutory,' duty to furnish, cars under §§ 895 and 915, 0. & M. Digest. According to the above decisions of the U. S. Supreme Court and our own court, appellees had the right to maintain this action under § 22 of the Interstate Commerce Act. It follows that the court did liot err in overruling the appellant’s demurrer to the complaint.
2. No useful purpose could be subserved by setting forth and commenting upon the separate instructions given by the court, constituting its charge as a whole to the jury, in submitting the issue of appellant’s alleged failure to furnish cars. The appellant,' in its prayer for instruction No. 1, asked the court to instruct the jury to return a verdict in its favor, which prayer the court refused, and the ruling was correct. In its prayers for instructions numbered 2 and 3, and in a modification of prayer for instruction by the appellee, the court, in effect, told the jury that the burden was upon the appellee to prove that the appellant, in failing to furnish cars, had violated the act of Congress of February 28,1920, known as the Transportation Act, and the rules and orders of the Interstate Commerce Commission pursuant thereto, concerning the supply and distribution of coal-cars, and, if the jury so found, their verdict should be for the appellant. It follows, from what we have already said in discussing the question of jurisdiction, that the court erred in granting these prayers for instruction, but they were granted at the request of the appellant. The only issue, as we have seen, that the court should have submitted to the jury was whether or not the appellant wrongfully failed, neglected or refused to furnish the appellees cars for the shipment of coal from their mines, and, if so, the amount of damages appellees were entitled to recover by reason of such neglect, refusal or failure. The court submitted this issue to the jury, in instructions at the request of the appellees, in substantial conformity with the law as announced by this court in numerous decisions; some of the more recent being Gage v. Arkansas Central Rd. Co., 160 Ark. 402, 254 S. W. 665; C. R. I. & P. Ry. Co. v. Simms, 161 Ark. 289, 256 S. W. 33; and Express Co. v. Bald Knob Fruit Exchange, 162 Ark. 588, 258 S. W. 995. In the last case we said: “The law requires a carrier to make reasonable effort to provide instrumentalities for accommodating the business of the localities which it assumes to serve. This is not merely a statutory requirement, but it is an elementary principle originating in the common law.”
The instructions which the court gave, both at the instance of the appellant and the appellees, fairly submitted the issues to the jury, and the appellant is in no attitude to complain because the instructions which the ■court gave at its request introduced the issue of whether or not the appellant had violated the Interstate Commerce Act of February 28,1920, and the rules and orders of the Interstate Commerce Commission pursuant thereto. We are convinced that the appellant was not prejudiced by these rulings of the court in its favor, because there was testimony in the record to have warranted the verdict of the jury, even if the action had been based on violation of the Interstate Commerce Act and the orders and rules of the Commission passed pursuant thereto, it being assumed that those rules were, on their face, in every respect fair and reasonable.
3. It would unduly extend this opinion to set out all the instructions constituting the court’s charge. It suffices to say that we find no error prejudicial to appellant, when the charge is carefully analyzed as a whole. Instruction No. 6 of the instructions given by the court on its own motion is a cautionary instruction, which the appellant contends is the same instruction as that condemned by us in the case of McGehee & Co. v. Fuller, 169 Ark. 920, 277 S. W. 39. The special language of the instruction in the Fuller case complained of is as follows: “ On the other hand, if a majority are for the defendant, the minority ought to doubt the correctness of their judgment, which is not concurred in by most of those with whom they are associated, and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.” The language of the instruction which the appellant asks us to condemn in the present case is as follows: “And, on the other hand, if a majority are for the defendant, the minority ought to seriously ask themselves whether they may not be reasonable and ought to doubt the correctness of their judgment which is not concurred in by most of those with whom they' are associated and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.”
After a careful comparison of the instructions, we are convinced that the language is not the same as that used in the Puller case, and the instruction in the present case does not invade the province of.the .jury. It does not direct or advise the minority of the jury that it is their duty to yield their own independent judgment to that of the majority. The language of the instruction quoted in effect but tells the jury that it is the duty of the minority to seriously compare their own views with the views of the majority and determine, in the light of the evidence, whether it is more reasonable that the majority should be mistaken in its conclusion than the minority. This part of the instruction, taken in connection with the other part thereof, is but cautionary to the jury, and tells them to endeavor to arrive át a verdict by reconciling, if possible, their conflicting views, but without any of them surrendering their own convictions for the sake of arriving at a verdict by mere acquiescence in the judgment of his fellows, without being really convinced of the correctness of such judgment. The instruction is not out of harmony with what we have said concerning cautionary instructions in the case of McGehee & Co. v. Fuller, supra, and in St. L. I. M. & S. R. Co. v. Carter, 111 Ark. 272, 164 S. W. 715; Simonson v. Lovell, 118 Ark. 81, 175 S. W. 407; and St. L. I. M. & S. R. Co. v. Devanty, 98 Ark. 83, 135 S. W. 802. Indeed, the instruction under consideration follows substantially the instructions that were considered and approved by the Supreme Court of the United States in the case of Allen v. United States, 164 U. S. 492-501, which were taken literally from a charge approved by the Supreme Court of Massachusetts in Commonwealth v. Tuey, 8 Cushing 1, and by the Supreme Court of Connecticut in State v. Smith, 49 Conn. 376, 386.
4. We have carefully examined the record concerning the alleged error of the trial court in refusing to set aside the verdict on account of the alleged misconduct of one of the members of the jury. One of the plaintiffs lived in the same neighborhood with the juror, whose conduct is challenged, both of them living in the country some ten or twelve miles from the county seat. This plaintiff, during the progress of the trial, and after the cause was finally submitted to the jury for its determination, allowed the juror whose conduct is challenged to ride back and forth in this plaintiff’s car. Other persons accompanied them. The juror, as a return for this courtesy and kindness on the part of this plaintiff, paid for the plaintiff’s dinner. It is not shown that there was any conversation between the juror and this plaintiff in regard to the case. All the parties who accompanied plaintiff back and forth in the car were required to be in attendance at court. Counsel for the appellant, who made the motion to set aside the verdict on this ground, stated that he knew the juror intimately and did not claim or allege any corruption or corrupt motives on his part; he was as far from that as any one, and counsel wanted the record to so show. Such being the facts, we are unwilling to say that the integrity of the trial was destroyed by the alleged misconduct of the juror. It cannot 'be said, under the showing made, that the plaintiff was endeavoring to influence in his favor the mind of this juror. It was conceded, and the court found, that the juror was a man of unimpeachable integrity.
In the case of St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S. W. 768, we quoted from Brookhaven Lumber & Mfg. Co. v. Ill. Central Ry. Co., 68 Miss. 432, 10 So. 66, as follows: “While it cannot be too strongly insisted that the stream of justice shall be kept pure— so pure as to afford no suspicion of corrupt or improper intermingling of any foreign or hurtful matter — yet it must not be forgotten that no mere irregularities of beha- ■ vior in this day of greater and wiser freedom for jurors, at least in civil trials, will be permitted to disturb the stability of judicial procedure.” See also Bealmear v. State, 104 Ark. 616, 150 S. W. 129. In Jetton v. Toby, 62 Ark. 91, 34 S. W. 533, we held that the “treating, feeding, or entertaining of jurors by the parties or their counsel during .the progress of a trial in a cause in which they had been selected as a jury, whatever the motive might be, is highly improper and deserves severe condemnation.” But in that case we did not set aside the verdict because of the alleged misconduct, and it occurs to us it would be going too far, under the facts proved in this case, to attribute a corrupt motive to the conduct of the plaintiff and the juror involved. Counsel for appellant could hardly expect the trial court and this court to believe that a corrupt motive instigated the conduct, when counsel himself did not so believe. This we would have to do before we would be justified in setting aside the verdict.
Upon the whole case we find no reversible error in the rulings of the trial court, and the judgment is therefore affirmed.
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Hart, C. J.,
(after stating the facts). At the outset, it may be stated that, under the practice in equity, exhibits to a complaint become, for all purposes of pleading, a part of the complaint, and consequently on demurrer may be used in aid of a defective statement in the complaint itself, and may he looked to for the purpose of testing the sufficiency of the allegations of the complaint. Moore v. Exelby, 170 Ark. 908..
It is fairly inferable from the allegations in the cross-complaint, when read in ■connection with the exhibits thereto, that the Yale Automobile Company was a dealer in Chevrolet cars during the time all the transactions involved in this suit were had. The exhibits show that the Yale Automobile Company sold cars to individuals and took notes for all or a part of the purchase money, retaining title in itself until the purchase price was paid. These notes were made on printed blanks furnished by the Citizens’ Loan & Investment Company and the General Motors Acceptance Corporation. This arrangement was made pursuant to agreements between the Yale Automobile Company and the Citizens’ Loan & Investment Company and the General Motors Acceptance Corporation, whereby the former was to borrow money from the two latter companies for use in its business and transfer said conditional sale notes to them in payment of the same.
The England National Bank had taken mortgages on all cars furnished to the Yale Automobile Company by the manufacturer of the cars and had duly filed said mortgages of record. All these chattel mortgages were filed for record before the cars were sold by the Yale Automobile Company to customers and conditional sale notes were taken for the purchase price thereof and transferred to the Citizens’ Loan & Investment Company and the General Motors Acceptance Corporation.
It is the contention of counsel for the England National Bank that the chattel mortgages given by the Yale Automobile Company were valid and gave it a lien prior to that which might be subsequently secured by the creditors of the Yale Automobile Company. We do not agree with counsel in this contention. We think the case is settled 'by the principles of law decided by the Virginia Supreme Court of Appeals in Boice v. Finance & Guaranty Corporation, 102 S. E. 591, 10 A. L. R. 654,
In that case the court held that property bought for ■the express purpose of daily indiscriminate sale to the general public, • exposed for such sale at the place of business of a licensed dealer, and over which the dealer is permitted to exercise the dominion of owner, cannot be made the subject of a valid chattel mortgage, though, as in the case of an automobile, it is of considerable size and value, and capacity of identification.
Inasmuch as this is the only case bearing directly upon the issues involved in the case at bar, we copy extensively from the opinion and adopt the reasoning thereof. The court said:
“It is a matter of common knowledge, and will therefore be judicially noticed, that, in the large cities, there are department stores in which a customer can buy almost anything from a nut-cracker to a threshing machine, from a doll carriage to an automobile. It would never occur to a customer that he must be on his guard to see whether the article was bulky, of large value, and easily susceptible of identification, and, if so, to examine the registry for liens thereon. Besides, many of the articles carried in such stores would be on the border line, and it would be unreasonable to require a purchaser to determine what could be mortgaged and what could not. To require an examination of the records for liens in such cases would break up the business, and indeed be an embargo on legitimate trade. Capital must seek a more substantial security for its protection. Otherwise, it were better that the few should suffer than the general public, who have been lured into purchasing from a dealer who has been intrusted with the indicia of- ownership. A purchaser in such case is not bound to see to the application of the purchase money.
“It is true that, as a rule, the seller of personal chattels cannot confer upon a purchaser any better title than he himself has; but, if the owner stands by and permits a seller, who is a licensed dealer in such goods, to hold himself out to the world as owner, to treat the goods as his own, place them with other similar goods of his own in a public showroom, and offer the same indiscriminately with his own to the public, he will be estopped by his conduct from asserting" his ownership against a purchaser for value without notice of his title. The constructive notice furnished by a recorded mortgage or deed of trust in such cases is not sufficient. The act of knowingly permitting the goods to be so handled and used by the seller in the ordinary and usual conduct of his business is just as destructive of the rights of the creditor as if such permission had been expressly granted in the mortgage or deed of trust.”
The case was decided upon the principle that, where one of two equally innocent persons must suffer, he should bear the burden whose conduct has induced the loss. In the present case, the England National Bank took mortgages from time to time upon the automobiles of the Yale Automobile Company, which were to be placed on sale and sold by said company. If these mortgages are to be considered valid, no one would be safe in purchasing a car from a dealer until he first went to the records at the county seat and made an examination to see if there was a chattel mortgage on the car which he was about to purchase, and he also would have to see to it that the mortgage was released or that the purchase price of the car was paid to the mortgagee.
The mortgage given by the Yale Automobile Company to the England National Bank contained a provision that the former company was to retain possession of the automobiles as long as the mortgagee deemed its security safe, and provided that the bank might take possession of the automobiles described in the mortgages at any time it might deem the security unsafe. It is also true that the mortgages contained a provision that the mortgagor agreed, until payment of the said indebtedness, to hold and keep all of said automobiles in brand-new condition and not to operate any of them for demonstration or for any other purpose; and agreed, further, not to sell, loan, rent, deliver, mortgage, pledge, or otherwise dispose of any of said automobiles until he should obtain from the bank an instrument in writing releasing the said automobile from the terms of the' mortgage.
This does not help the case of the bank any. Indeed, it shows that it was the obvious intention of the parties that the automobiles should be exhibited for sale; and, from the long course of dealing between the "parties and the number of mortgages given, it is plainly inferable that, while the mortgage stipulates against sale, conversion or removal of the automobiles without the written consent of the bank, the stipulation was waived, if its violation was knowingly permitted by the bank. It is plainly inferable from the length of the time the transactions in question were in progress, and from the number of mortgages taken by the bank, that it must have know that the automobiles were being sold and that the proceeds were not being applied to the payment of its indebtedness.
It is said in the case cited that it would be a travesty on justice and a fraud on the rights of third persons to permit a creditor to take such chattel mortgages as were taken in this case and immediately destroy their effect by permitting a use of the property inconsistent with the terms of the mortgages. In that case the court further said that it was immaterial whether the permission to use the property as owner was given contemporaneously with or subsequent to the mortgage. In either event it has the same effect as if it had been set out in the mortgage. The case cited above was followed by the Virginia Supreme Court of Appeals on the same day in O’Neil v. Cheatwood, 102 S. E. 596.
This view is in accord with our previous decisions bearing on the question. In Lund v. Fletcher, 39 Ark. 325, it was held that a mortgage of articles of meichandise left in the possession of the mortgagor, with power to sell in the ordinary course of business, is void except between the parties to it. The court had under consid-eration a mortgage of a stock of drugs, paints, glassware, etc., and the majority of the court approved the views on this question expressed by Chancellor Cooper of Ten nessee, considering them based on good reason and sound policy. In adopting the views of Chancellor Cooper for the decision of the case, the court said: “That eminent jurist, whose ability, judicial temperament and profound study entitle his opinions to the highest consideration, whilst conceding that a mortgage may be made to cover after-acquired property, and that there may be left in the mortgagor a limited power of disposition, such as tools, machinery, rolling stock, etc., denies that such power or disposition consists with a valid lien on personal goods, which can only be profitably used as articles of commerce. He says that such a fluctuating lien,' opening to release what is sold, and to take in what may be purchased, is invalid in law, and not enforceable in equity. ’ ’
In Gauss Sons v. Doyle & Co., 46 Ark. 122, it was held that, when there is an agreement or understanding between the mortgagor and mortgagee of a stock of goods that the mortgagor may remain in possession of the goods and sell them as his own, the mortgage is as fraudulent and void as to other creditors as if the agreement were expressed in the mortgage; and, to arrive at their true meaning, the concurrent acts, surrounding circumstances and subsequent conduct of the parties are taken together for the consideration of the court or jury trying the issue. It was further held that it was against public policy for the mortgagor to remain in possession and sell the mortgaged goods, except as agent of the mortgagee.
This principle was again recognized in Felner v. Wilson, 55 Ark. 77, where it was held that a mortgage of a stock of goods was not invalidated by a provision that the mortgagor should retain possession of the property as agent of the mortgagee and sell for him. This view of the law is supported by the Supreme Court of the United States in Robinson v. Elliott, 22 Wall. 513.
The Citizens’ Loan & Investment.Company and the General Motors Acceptance Corporation were bona fide creditors of the Yale Automobile Company. We think that the England National Bank, in taking the -mort gages under the circumstances alleged in the. cross-complaint, can stand on no higher footing than one who sells to a retailer and gives him the power of sale to his customers.
Therefore we are of the opinion that the .mortgages given by the Tale Automobile Company to the England National Bank are void as to the claims of the Citizens’ Loan & Investment Company and the General Motors Acceptance Corporation against the Tale Automobile Company. It follows that the decree of the chancery court was correct, and must be affirmed.
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Hart, J.,
(after stating the facts). This court has held that the doctrine of the common law, that, if the owner permits his stock to run at large and they enter upon the land of another, though uninclosed, he becomes a trespasser, is inapplicable to the condition and circumstances of our people, and has never been recognized in this State. L. R. & F. S. Ry. Co. v. Finley, 37 Ark. 562; and St. Louis I. M. & S. R. Co. v. Newman, 94 Ark. 458, 127 S. W. 735.
While this is true, it does not follow that the Legislature may not re-enact the common law, in whole or in part, or make that law the statute law of the State. As said by the Supreme Court of North Carolina in State v. Mathis, 149 N. C. 546, 63 S. E. 99: “If the condition in respect to the agricultural system of the people so changes as to make it conducive to their interest to require all stock to be 'fenced in/ and relieve the landowner of the of the duty to 'fence it out/ we can see no good reason why the Legislature may not, by appropriate legislation, do so, either in respect to the whole State or political divisions thereof.”
Such is the effect of our own decisions. In DeQueen v. Fenton, 100 Ark. 504, 140 S. W. 716, 18 A. L. R. 63, it was held that one who resides outside a municipality is guilty of an infraction of an ordinance against permitting his stock to run at large within the city limits, if the stock are driven by him within the municipal limits, or if they run at large therein with his knowledge. Again, in Howell v. Daughet, 148 Ark. 450, 230 S. W. 559, it was held that statutes authorizing the impounding and sale of stock found running at large in violation of law are valid as police regulations. This principle of law seems to have been recognized as sound by counsel for both parties in the case at bar.
The ruling of the circuit court'in directing a verdict of acquittal was predicated upon the theory that there could be no conviction under the statute where there was no lawful fence around the fencing district. The fencing district was organized under the provisions of § § 4655-4692 of Crawford & Moses’ Digest. Under the provisions of the statute, the district must be surrounded by a lawful fence before there can be a conviction for allowing stock to run at large within its limits. The Legislature of 1921 passed an act to provide for the regulation of certain fencing districts in Lonoke County, to provide for the enforcement thereof, and to define the powers and duties of the fencing board. Special Acts of 1921, p. 215.
Sections 5 and 6 of said special act read as follows:
“5. That in any criminal or civil proceeding for the violation of this act or the general fencing district act, it shall be no defense to any person residing in and. owning live stock in that part of Lonoke County, south of the Chicago, Rock Island & Pacific Railroad, affected by § 1 of this act, that any fence has been destroyed, gate removed, or that any part of the said area or district is not inclosed by a lawful fence.
“6. It shall be unlawful for any person residing in that part of Lonoke County, south of the Chicago, Rock Island & Pacific Railroad affected by § 1 of this act, to drive out of said area, for the purpose of grazing or pasturing, unless said live stock is grazed or pastured upon land owned by them, and likewise it shall be unlawful for any person residing on the outside of said territory to ride, or drive into, or to permit to run at large, in the restricted area any of the live stock enumerated in § 3 of this act, and all persons violating the provisions hereof shall he fined not less than $10 or more than $50.”
The special act just referred to does not, in express terms, repeal any of the provisions of the general act relating to the formation of fencing districts. When two legislative acts relating to the same subject are necessarily repugnant to or in conflict with each other, the later act must control, and, to the extent of such repugnancy or conflict, it opérates as a repeal of the first act, whether it is so expressly declared or not in the later act. DeQueen v. Fenton, 100 Ark. 504, 140 S. W. 716. In the application of this rule of statutory construction, we are of the opinion that the special act of 1921 repealed the provisions of the prior general act in so far as the requirements of a lawful fence around District B-3 in Lonoke County, Arkansas, is concerned.
While it is true that § 5 above quoted seems to apply to those living within the district, it does allow the district to exist without a lawful fence. As we have already seen, this the Legislature had the power to do. It might change or modify the law with regard to building fences and permitting stock to run at large in cultivated lands in any way it deemed proper.
Section 6 makes it unlawful for any person residing on the outside of the fencing district to permit to run at ■ large in the district any of the live stock enumerated in § 3 of the act. Section 6 specifically defines the ways the act may be violated, and it expressly prohibits people on the outside of the district from permitting their live stock to run at large within the district, and this indicates a purpose on the part of the Legislature to make such acts unlawful, regardless- of the fact of whether the district was inclosed by a lawful fence or not. No useful purpose could have been served in passing the act if its provisions in this regard were only to apply to persons living within the limits of the fencing district.
It is insisted by counsel for the defendant that such a construction is inconsistent with the provisions of the statute requiring that Fencing District B-4, which was not at that time inclosed by a lawful fence, to be inclosed. In answer to this, it need only be said that the Legislature had the power to enact such legislation as it deemed proper in the premises. Its action being supreme, its reason cannot be inquired into by the courts, and it is sufficient to say that the legislative will is a valid reason for its action.
If cattle run at large with the knowledge and consent of their owner, he is guilty of permitting them to run at large. Beattie v. State, 77 Ark. 247, 95 S. W. 163. Under this rule the evidence stated is legally sufficient to warrant a conviction.
The result of our views is that the court erred in directing the jury to find the defendant not guilty. Inasmuch as the punishment by the statute is a fine only, under our practice, the judgment will be reversed, and the cause remanded for a new trial.
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Smith, J.
Appellant was convicted of the crime of murder in the second degree, under an indictment charging him with the crime of murder in the first degree, alleged to have been committed by cutting and stabbing one Newt Nelson with a knife.
One of the errors assigned for the reversal of the judgment is that the testimony is insufficient to support' a conviction for murder in any degree. This assignment of error may be answered by giving the version of the killing which Charles Anderson detailed to the jury. According to this witness, he and deceased were covering a house, when appellant walked up to where they were working, but said nothing’. A stepson of the witness asked appellant if there was anything he wanted, when appellant said he wanted nothing, and walked away. Appellant went to town, and, in about half-an-hour, returned, and called to deceased, and stated that he had received a letter which he wanted deceased to read to him. Deceased climbed down from the house and proceeded to read the letter, which had been written to appellant by Bill Meador, who owned the farm on which both appellant and deceased lived. The landlord resided in another county. This letter stated that the writer had been advised that appellant, who was a sharecropper, had not fairly divided the corn grown by him when he gathered it, and, when this letter was read, appellant accused deceased of writing the letter to their landlord which had advised that appellant had not fairly, divided the corn. Deceased denied writing to Mr. Meador, but appellant persisted in asserting that deceased had done so, when deceased said, “No sir, I will swear that I did not write the letter.” As deceased made this remark appellant drew and opened his knife, and, when witness saw this, he yelled, “Run, Uncle Newt, Mr. Pope’s going to cut you,” and he saw Pope strike deceased in the back, and deceased ran, and was soon out of the range of witness ’ vision. When witness saw that appellant was about to assault deceased, he commenced climbing down from the roof of the house where he was working, but, before he could reach the parties, the ‘‘fight,” as he called it, was over, and deceased was staggering- down the hill from the house and appellant was walking rapidly away.
Surgeons who attended deceased testified that there were ten wounds on the body. One was across the right wrist, there was a cut in the thigh, one in the right side over the kidney, there were stab wounds in the breast, and on the stomach, and the remainder of the wounds Avere in the back.
It was- shown that appellant purchased, on the day of the difficulty, the knife with which deceased was killed. There was also testimony to the effect that there was bad blood between the men, and each had made threats-against the other.
We think this testimony sufficient to support the ve]v dict returned by the jury.
The testimony on the part of appellant was to the effect that he was assaulted by deceased, and that he attempted to retire from the difficulty, and that he finally cut deceased in his necessary self-defense. But these conflicts in the testimony were, of course, questions for the jury.
It is assigned as error that the court permitted \vitnes-s Dickey to make erroneous and prejudicial statements in the presence of the jury. This witness was a white man, and so is appellant, while deceased was a colored man. This witness testified that appellant had made threats ■ of violence against deceased. He also testified that deceased was a quiet and peaceful man. The witness was cross-examined at length concerning the sources of the information upon which his opinion that deceased’s reputation was good was based. He was interrogated concerning the statement which he had made to the effect that he would not believe anything bad about deceased if a dozen witnesses testified to that effect, and he was interrogated concerning the time and place when and where he had heard appellant make threats against deceased, and the witness answered that “The day before Newt was killed he came to my house— his mailbox is in front of my house, and I saw him coming up to the mailbox, and it was raining, and the mail rider happened to come along’, and I called him and told him to come in, I wanted to see him, and I told him about the threats Ed had made. I says ‘Watch that man; I know that man,’ and I says ‘He’ll grab you some day and cut you all to pieces.’ ’’ Counsel for appellant objected to this answer, and stated that he had not asked the witness to relate the conversation between himself and deceased. The court inquired, “What did you ask him?” Counsel for appellant answered, “I asked him where it was he had the conversation with Ed Pope.” The court then directed the witness to answer that question, and the witness replied, “I told him, Judge, as near as I can, where.” Counsel then said: “I want to ask that this statement of the conversation with Newt be excluded,” and the court replied: “Very well. It will be excluded.” It is insisted■ that the statement of the witness, set out above, was voluntary, was not responsive to the question asked, and was highly prejudicial, and that the prejudice of the remark was not cured by the ruling of the court.
It is true, of course, that it was incompetent for the witness to detail his conversation with deceased and the advice he gave him about watching appellant, but the witness was being closely cross-examined touching threats which he had testified were made by appellant and with the obvious purpose of discrediting the witness. The question asked by the court indicated that the court was not clear as to the scope of the question, and the answer given by the witness, after the question was explained to the court by counsel, indicated that the witness thought he had answered the question asked. This answer was, of course, broader than the question, and included the incompetent conversation between witness and deceased, but the entire answer was excluded, upon motion of counsel for appellant that this be done. We hold therefore that, while the testimony was incompetent, the prejudice was removed by its exclusion. Mo. Pac. Rd. Co. v. Keller, 168 Ark. 626, 271 S. W. 7; Hale v. State, 146 Ark. 580, 226 S. W. 527.
Appellant called one Dave Anderson to testify concerning the general reputation of deceased.' This witness testified that he knew the reputation of deceased for being a quarrelsome and arbitrary man, and that his reputation was both good and bad. He testified that lie had heard some people say it was bad, while others said it was good. The witness was then asked if the people who said deceased’s reputation was good were not the wealthy planters. An objection to-this question was sustained, and this ruling is assigned as error.
It is the insistence of appellant that the showing could have been made, had the court permitted it to be done, that deceased had a dual reputation, that among well-to-do persons and persons of influence deceased was polite and obsequious, while his attitude towards white people of the poorer class and towards colored people was overbearing’ and offensive.
We think no error was committed in the ruling made. The court permitted the introduction of testimony tending to show the general reputation of the deceased, and it is this which may be shown. Many circumstances may, collectively, make up this reputation, but it is the sum total of them all, or the general reputation, which may be shown. It was not. proper therefore to inquire into the details of the life of deceased having no relation to the encounter which caused his death, and the inquiry was therefore properly confined to the general reputation of the deceased.
At § 222 of the chapter on “Homicide,” in 13 R. C. L., page 919, it is said: “Where character evidence is offered in support of the'contention that the deceased was the aggressor, or to characterize and explain his acts, the defense is restricted to proof of general reputation in the community where the deceased lived, and may not show particular acts or conduct at specified times.' It may not be shown that the deceased had engaged in frequent fights in which he used deadly weapons, and therewith made deadly assaults on his antagonists. But, on the issue whether or not the accused had reasonable ground to believe himself in imminent danger, he may show his knowledge of specific instances of violence- on the part of the deceased. But in no case may a witness state his opinion of the character of the deceased or how the latter would have acted under any particular set of circumstances.”
It is insisted that prejudicial error was committed by the prosecuting attorney in lecturing A. E. Jackson, one of the eye-witnesses to the encounter, who was called as a witness for appellant. Counsel for appellant asked this witness the following question: “When they quit (fighting), what was done by either or both of them?” The witness answered: “Well, when they quit, Mr. Pope ran across the track, and I believe the negro threw at him, maybe — ” The prosecuting attorney interrupted the witness with the remark, “Wait a minute. We want you to tell what you know about him, not what you believe.” Counsel for appellant objected to the interruption of the witness and to the lecturing of the.witness by the prosecuting attorney, and asked that the statement of the prosecuting attorney be excluded from the record and the jury told it was improper. The court responded to this request of counsel by saying, “I will tell the jury they will not consider the statement of the prosecuting attorney made to the witness.” We think this ruling cured the error, if any there was, in the remark of the prosecuting attorney.
On the cross-examination of appellant he was asked if he had not cut other men, and particularly if he had not stabbed a man named Crow, and the witness answered that he had. Exceptions were saved to these questions and answers. There was no error in this ruling. Such testimony, was held competent in the recent case of Whittaker v. State, 171 Ark. 762, it being there held that it is within the discretion of the trial court to permit, within reasonable limits, an inquiry, on cross-examination, into the character and antecedents of the defendant for the purpose of testing his credibility as a witness, when the examination is limited to such antecedents as throw light on the credibility of the witness.
The court gave, over appellant’s objection, an instruction numbered 11, which reads as follows: “If you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, armed with a deadly weapon, sought the deceased with the felonious intent to kill him, or sought or brought on, or voluntarily entered into, the difficulty with the deceased, with the felonious intent to take his life, then the defendant cannot invoke the law of self-defense, no matter how imminent the peril in which he found himself placed, unless the defendant abandoned or attempted to abandon the difficulty before the fatal blow was struck.”
It is objected that this instruction assumed that defendant armed himself with a knife, and that the knife was a deadly weapon, and tells the jury, after so assuming, that appellant could not invoke the law of self-defense unless he abandoned or attempted to abandon the difficulty before the fatal blow was struck.
We do not think the instruction open to the objection made to it. On the contrary, the instruction submitted the question to the jury whether appellant had armed himself with a deadly weapon .and had sought out deceased with the previous intent to kill him, or had brought on or had voluntarily entered into the difficulty, and the testimony on the part of the State warranted the submission of these questions. Having submitted these questions, the instruction told the jury that, if there was an affirmative finding, appellant could not invoke the law of self-defense unless he had abandoned or had attempted to abandon the difficulty before the fatal blow was struck. This instruction correctly declared the law, as has been stated by this court in several decisions.
The court refused to give, at appellant’s request, an instruction numbered 3, which reads as follows: “If you beli’eve from the evidence that the killing was done by Ed Pope while defending himself against an attack by Newt Nelson, it is your duty, in deciding upon the character of the defense, to carefully examine and consider all the circumstances of the difficulty, the true situation of the parties at the time, their respective feelings and intentions as shown by their acts, their threats and their relative strength and power (because, in a contest between a powerful individual and a weaker, the necessity of taking life in self-defense will be more apparent and easily discovered).” The court refused to give this instruction as requested, but amended it by striking out the portion inclosed in parentheses.
"We think no error was committed in thus modifying the instruction, because the part stricken out was argumentative in form. In the case of Prewitt v. State, 150 Ark. 279, 234 S. W. 35, an instruction was asked which contained almost the identical language which was stricken from the instruction in the instant case. In the Prewitt case, supra, the instruction was not modified, but was refused, and we said this was not error, and in so holding vve said: “The instruction was argumentative in form. It was, of course, proper for the jury to consider the circumstances there recited, but this court has said in many cases that it is not good practice to single out and specially direct the attention of the jury to particular circumstances, thereby appearing to emphasize the circumstances named.”
Upon a consideration of the whole case we 'find no error prejudicial to defendant, and the judgment will therefore be affirmed.
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Humphreys, J.
This is an appeal from a decree of the chancery court of Mississippi County, Chickasawba District, confirming a commissioner’s sale of certain real estate in said county and ordering the commissioner to make a deed to the purchaser thereof, in a foreclosure proceeding wherein B. C. Land Company was plaintiff and appellees herein were defendants. L. W. Rose, one of the appellants, owned the east half of the fractional southeast quarter of section 21, township 16 north, range 8 east, in said district and county, worth between $5,500 and $6,500. He executed a first mortgage thereon to B. C. Land Company for $2,000, and a second mortgage to Mr. Ellis Goodrich for $1,500. He failed to pay the first mortgage at maturity, and the B. C. Land Company foreclosed same, making L. W. Rose, the owner, and Mrs. Alice Goodrich, the second mortgagee, parties defendant in the proceeding. Pursuant to order, the land was sold on April 11, 1925, to Mrs. Alice Goodrich for $2,246.86, which was about $100 more than was necessary to satisfy the first mortgage, interest and cost. She was unable to give security or bond for the first payment of the bid, and assigned her certificate of purchase to W. G. Bray for W.F. Shelton, Jr., in consideration of $100 cash and the release by W. G. Bray of his claim for an attorney’s fee against her. On September 25, 1925, the first day of chancery court subsequent to the sale, appellants filed exceptions to the sale, praying that same be set aside upon the alleged ground that they had been misled and defeated in the protection of their rights at the said sale through misrepresentations and fault of "W. G. Bray, who purchased the land either for himself or W. F. Shelton, Jr., at said sale, for a grossly inadequate price, who took possession of the land by force a short time after the sale. They tendered into court a sufficient sum to redeem the land from the sale.
W. F. Shelton, Jr., filed an answer, denying the allegations set out in the exceptions to the sale, and praying for a confirmation thereof and a deed for same.
Appellants contend that the court erred in confirming the sale and ordering the commissioner to make a deed to W. F. Shelton, Jr., under the testimony introduced by them and the rule of law applicable thereto. The rule of law invoked by appellants as applicable to the facts in the instant case is that gross inadequacy of price, coupled with any slight circumstances of unfairness in the conduct of the party benefited by the sale, will justify a court in refusing confirmation thereof. The rule thus announced is supported by the cases of Wells v. Knox, 108 Ark. 366, 159 S. W. 1099; Stevenson v. Gault, 131 Ark. 397, 199 S. W. 112; Hawkins v. Jones, 131 Ark. 478, 199 S. W. 1099; Moore v. McJudkins, 136 Ark. 292, 206 S. W. 445; Chapin v. Quisenberry, 138 Ark. 68, 210 S. W. 341.
Appellee introduced no testimony responsive to the issue joined, so the facts revealed by the record must be treated as undisputed. We shall only attempt a summary of the facts bearing upon the integrity of the sale, in announcing our conclusion. W. G. Bray was an active vice president of the bank of Senath, and its attorney. W. F. Shelton, Jr., was a stockholder in said bank. Quite a while before the sale B. A. Goodrich, acting for his wife, Mrs. Alice Goodrich, employed W. G. Bray to collect her second mortgage, and turned the note and mortgage over to him for that purpose. Goodrich contracted with him for an agreed fee of $100 to either get enough money from the bank or to advance enough to purchase the land at the sale and thereby protect his wife’s interest until they' could borrow the necessary amount from a loan company to repay him. Bray and Goodrich went together to J. C. Chapin to negotiate a loan, and he referred them to his associate, Mr. Kirscher, to whom an application was made for a loan of about $2,500. They informed J. C. Chapin that their plan was for Bray to loan the money to Goodrich, buy' the land at the sale; and, after securing the title, to obtain a loan through Kirscher and Chapin. Kirscher and Chapin viewed and appraised the land at $5,500 to ,$6,000. In February before the sale, Bray or his partner wrote to L. W. Rose to the effect that they had Mrs. Goodrich’s note and mortgage for collection. In response to the letter, he called on Bray, who proposed to represent his interest also at the sale, saying that he was going to furnish the money to Mrs. Goodrich to take care of the first mortgage if Rose would renew the second mortgage to Mrs. Goodrich. About ten days before the sale Bray informed Rose that he had decided not to lend Mrs. Goodrich the money' to take care of the first mortgage at the sale. Rose then tried to get a loan to take up the first mortgage, but did not have time to complete same before said sale. He was informed by an agent of the B. C. Land Company that he would have a right to redeem the land until court convened in September. He did nothing further, counting on redeeming it at that time. Having ascertained that he had been misinformed with reference to the redemption of the land, he joined Mrs. Goodrich in filing the exceptions herein to the sale. About ten days or two weeks before the sale Bray informed Goodrich that he had decided not to advance Mrs. Goodrich the money to take care of the first mortgage at the sale, and advised him to buy it in himself for as small an amount as possible, and give a bond to secure the bid. He accepted the advice, believing that Bray was still acting for them in the collection of Mrs. Goodrich’s note and mortgage. He bid the land in at the sale for $2,246.86, and produced two- bondsmen that he regarded as responsible, but the commissioner refused to accept them, and Bray made no effort to induce him to do so. Being unable to secure his bid to the satisfaction of the commissioner, and coming to the conclusion that he had lost any chance to protect the interest of his wife, he agreed to transfer his certificate of purchase to Bray for $100 in cash and the relinquishment of any claim by him of an attorney’s fee. The certificate was transferred to Bray for W. F. Shelton, Jr. Bray told Rose, immediately after the sale, that he had bought the land for himself. Appellants called Bray as a witness, and interrogated him relative to the purchase of the land at the sale for W. F. Shelton, Jr., as follows: “Q. You came over here that day of the sale representing him, didn’t you? A. No, sir. Q. Didn’t you wire for the money to conduct this sale? A. Yes sir. Q. When you bought the land, you immediately wired Mr. Shelton to get the money to pay for it, didn’t you. A. Yes sir. Q. You say to the court that you did not come over intending to buy the land for Mr. Shelton? How did you know he would want it if you didn’t? A. We had had more or less dealings since 1902. Some time prior we had a sort of understanding that if I found a bargain in land, to buy it and draw on him for the money and he would pay it. Q. In other words, to buy up all the cheap land you could get, and he would furnish the money to pay for it? A. There was nothing said about cheap land, about buy- ■ ing up cheap land.”
Shortly after the sale, and before the confirmation thereof, Bray took possession of the land in question by force, and put a man by the name of Coffee in charge thereof.
We think it fairly inferable from the testimony detailed above that Mr. Bray was, in fact, the real purchaser at the sale, notwithstanding the certificate was assigned to him for W. F. Shelton, Jr., without his knowledge and without- any specific understanding that he would do so. He. had the certificate assigned for the benefit of Shelton on the strength of an old understanding that he would buy land for him if it could be bought at a bargain. Immediately after the sale he told Rose that he had bought the land for himself.’ He took possession of the land before the confirmation of the sale, by force, and put his own man in charge of it. Treating him, then, as the real purchaser of the land, we do not think he should be permitted to profit by the sale. He bought it for an inadequate consideration from his client, who was in financial distress and who had contracted with him and depended upon him for financial assistance until ten days before the sale. In fact, on the day of the sale, Goodrich followed Bray’s advice and bought the land in for a little more than enough to pay the first mortgage. The men he got to secure the bid were refused, and Bray made no effort to get the commissioner to accept them. In trying to arrange matters, Bray had promised Rose to assist him, who relied upon his promise until about ten days before the sale.
We do not think Bray gave Goodrich and Rose sufficient notice that he would not assist them, after promising aid to Rose and contracting to lend Goodrich a sufficient amount of money to protect his wife’s interest against the first mortgage. They were unable to make other arrangements in the short time intervening between the notice and the sale. There can be no question about Rose being able to raise a sufficient amount to take up the first mortgage, had he been given a reasonable time to negotiate a loan. Goodrich should have been given more notice, under the circumstances, to protect his wife’s interest, and we do not think he should be estopped on account of the assignment of his certificate of purchase to his lawyer. It is quite clear that he made the assignment on account of financial distress, which could have been avoided, had his attorney given him ample notice that he did not intend to carry out his contract with him.
On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial.
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Hart, J.,
(after stating the facts). It is earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict. This court has held that, in a prosecution for assault with the intent to kill, it is necessary to show a specific intent to take life under such circumstances that, if death ensues, the accused would be guilty of murder in the first or second degree. It was also held that, in determining whether or not such intent existed, the jury should take into consideration the manner of assault, the nature of the weapon used, the manner in which it was used, the state ment of the defendant, and all facts and circumstances tending to show his state of mind. Clardy v. State, 96 Ark. 52, 131 S. W. 46, and Davis v. State, 115 Ark. 566, and cases cited.
"While there must have been a specific intent to take life, it need not have existed for any appreciable length of time, and malice could have been inferred from the fact that a murderous assault was committed with a knife in connection with the other attendant circumstances. Green v. State, 51 Ark. 189; Ferguson v. State, 92 Ark. 145.
In Keirsey v. State, 131 Ark. 487, 199 S. W. 532, it was held that mere words, however abusive or insulting, cannot reduce the degree of homicide from murder to manslaughter.
In Stepp v. State, 170 Ark. 1061, 282 S. W. 684, the court said that, inasmuch as no one can look into the mind of another, the only way to decide upon its condition at the time of the killing is to judge from the attending circumstances, and that the question of the presence or absence of malice at the time of the killing is for the jury, when there is any evidence to support its finding, because the jury is the judge of the weight to be given to the evidence, in deciding its legal sufficiency to support a verdict, it must be viewed in he light most favorable to the State.
We have set out the substance of the evidence, and need not repeat it here. In arriving at its verdict, the jury was not required to accept or reject the whole of the testimony of any witness. The undisputed evidence shows that bad blood existed between the defendant and the deceased on account of a lawsuit between them about some land. They had come to Stamps, where the killing occurred, for the purpose of taking depositions in the case. The deceased passed a drugstore where the defendant and Newt Aldridge were sitting on an iron step in front of it. He shook hands with Aldridge, and refused to shake hands with the defendant, saying, in substance, that he was not his friend. The defendant replied by applying a vile epithet to the deceased. It is true that, according to the witnesses for the State, the deceased first pushed the defendant back; but the .jury might have inferred that the defendant called the deceased a vile name for the purpose of causing a row, .and had the intention of stabbing him with a knife and killing him if the deceased tried to fight - him with his fist. He knew that the deceased had some skill in boxing, and that he was seventy-three years of age. While the deceased was a large man, the defendant might have thought that, on account of his advanced age, he might not be able to harm him, but, on account of his skill in boxing, he might claim that he cut deceased in order to keep from receiving great bodily harm at his hands. At least these were legal inferences which the jury might have drawn from the testimony.
The jury was the judge of the credibility of the witnesses, and might accept such portion of the testimony of any particular witness which it believed to be true and reject that part which it believed to be false. When the testimony is viewed in the light most favorable to the State, the jury might have inferred that Tatum was angered at the deceased and intended to raise a quarrel with him and to stab him and kill him if he should advance upon him. In reaching this conclusion, the jury might take into consideration the character of the wound, the fact that it caused death in fifteen or twenty minutes, and the further fact that the defendant sharpened his knife on the day before, at a time when he knew that he would meet the deceased in Stamps, where they were to take depositions in a pending lawsuit. It is true that the deceased first addressed the defendant by saying that he would not shake hands with him because he was not his friend. In the first place, there was nothing in the language used which was insulting; but, even if it should be so construed, as we have already seen, words, however insulting, are not sufficient to reduce a homicide from murder to manslaughter. It follows that we are of the opinion that the evidence is legally sufficient to warrant the verdict.
It is next insisted that the court erred in giving instruction No. 15, at the request of the State. The instruction reads as follows: “You are instructed that the only purpose for which proof of threats is admissible is to throw light on the state of mind of the defendant at the time he struck the fatal blow, and to show who was the probable aggressor, and if you believe, from the evidence as explained in these instructions, that the deceased was not making any attempt to kill the defendant or do him great bodily harm, as viewed from the standpoint of the defendant, acting as a reasonable man, you will not consider threats, even if proved, for any purpose; and in this connection you are told that threats alone, however violent, would not justify an assault or afford provocation for a homicide.
Couiisel for the defendant specifically objected to that part of the instruction which makes the defendant view the facts as a reasonable man and because of reading “as viewed from the standpoint of the defendant acting as a reasonable man,” instead of “as viewed from the standpoint of the defendant at the time, acting without fault or carelessness on his part.” We do not think the objection of counsel to the instruction is well taken. There is nothing in the testimony itself to show that the defendant was not a reasonable man or a man of ordinary intelligence. The question was narrowed down to whether, under the circumstances of the case, the attitude of the deceased, as described by the witnesses, was of itself sufficient to create in the mind of the defendant, as a reasonable man or a man of ordinary intelligence, a bona fide belief that the danger to him was imminent, and that the action which he took was necessary for the purpose of protecting himself from loss of life or the infliction of great bodily injury. If a man of ordinary intelligence, or a reasonable man under the same circumstances, would not have believed the danger to have been real, then the defendant cannot he said to have been justified in Ms action. In several other instructions given to the jury the court submitted the appearance of danger to the defendant, in accordance with the rules of law laid down in our previous decisions. When the instructions are considered and read as a whole, we cannot see how the jury could have been misled by the instruction in question or could have thought that it referred to any other time than the time of the killing. Branscum v. State, 134 Ark. 66, 203 S. W. 12, and Sullivan v. State, 17 Ark. 768.
It is next insisted that the court erred in refusing to give instruction No. 12, requested by the defendant, which reads as follows: “You are instructed that, if you believe from the evidence that the deceased had made threats of physical violence against the defendant, and that these threats had been previously communicated to the defendant, and that the deceased came up to where the defendant was sitting in the door of the store at Stamps, and struck the defendant, and that the acts and conduct of the deceased at the time were such as to lead the defendant to believe that the deceased was about to put his threats into execution, and that it honestly appeared to the defendant, acting on the facts and circumstances as they appeared to him from his standpoint at the time, without fault or carelessness on his part, that it was necessary to stab and kill the deceased to prevent him from taking his life or doing him serious bodily injury, then you are instructed that the defendant would be .justified in so acting, and you should return a verdict of not guilty for the defendant.”
The evidence on the part of the defendant showed that the deceased had made previous threats against the defendant and that the persons to whom the threats had been made communicated them to the defendant. The court, in other instructions, however, instructed the jury that it might consider such threats in determining who was the aggressor at the time the killing occurred. The court was not required to multiply instructions upon the same phase of the case. The respective theories of the State and of the defendant were fully and fairly submitted to the jury in the instructions given by the court. We have examined these instructions carefully, and find no reversible error in them.
It follows that the judgment must be affirmed.
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Smith, J.
The Keo-E>ngland Drainage District No. 4 of Lonoke County was organized in 1917 under act 279 of the Acts of 1909 ($§ 3607 et seq., C. & M. Digest) and the acts amendatory thereof. The district embraces about 15,000 acres of land, and the benefits assessed totaled $143,970, against which bonds were sold to the amount of $65,000, the proceeds of which were used in paying the construction costs of the improvement. All the construction work contemplated by the original plans, upon which the assessment of betterments was based, was completed in 1919, and no work has been done since that time, except to clean out the canals.
The principal drainage canal begins at the corporate limits of the town of Keo, and extends in a southeasterly direction to the boundary line between Lonoke and Jefferson counties, where it empties into Wabbaseka Bayou. This canal is about seven miles long. In addition, there are certain laterals emptying into the main canal, having a combined mileage of about eight miles, so that the total length of all the canals of the district amounts to fifteen miles.
.After the completion of the improvement, it became apparent that the outlet provided in the Wabbaseka Bayou was insufficient to take care of the water which the various canals carried and emptied into the Wabbaseka Bayou, as a result of which certain lands in the district are frequently overflowed in the spring, during planting time. As a result of this condition, the improvement has not given the expected relief. • On the contrary, considerable land in the district is damag'ed- by 'the improvement rather than benefited by it, as was contemplated and as would have been the case had the outlet proved sufficient.
At the time the original plans were adopted Wabbaseka Bayou was the only available outlet, and was thought to be sufficient, but, from the completion of the improvement, this outlet has been found to be inadequate. Since the completion of the canals a part 'of the headwaters of Plum Bayou, which runs along the west boundary of the district, have been diverted into the Arkansas River, as a result of which the high-water mark of this bayou has been so lowered that it' has been ascertained, by a survey made for that purpose, that this bayou may also be used for outlet purposes for the drainage district, thus diminishing the quantity of surface water carried and poured into Wabbaseka B.ayou.
The facts stated are shown both in the report of the district’s engineer and in his testimony given at the trial from which this appeal comes.
After the engineer had made his survey and report, showing that an additional outlet was available, the commissioners of the district filed a petition with the county court of Lonoke County praying an order authorizing the levy of additional taxes upon the lands of the district to pay the construction cost of the additional outlet into Plum Bayou, and, after due notice to the landowners, the petition was heard and granted.
Thereupon appellant, who is a landowner in the district, brought this suit in the chancery court of Lonoke County to enjoin the commissioners of the district from proceeding with the construction of the new canal, alleging that the county court was without jurisdiction to authorize it.
Under the original plan, a lateral numbered 2 in the northern part of the district ran into the main canal, and it is now proposed to construct the additional outlet from a point in this lateral to Plum Bayou. This new canal would be about 2% miles long, and the estimated cost of the extension is $14,685. It is proposed to issue additional bonds to construct this additional canal, but its cost, added to the cost of the original improvement, would not exceed the betterments originally assessed.
The answer filed by the commissioners admitted all the allegations of the complaint except one, to the effect that the proposed additional canal constitutes an original and independent construction work, but alleged, on the contrary, that this canal was incidental and essential to the original drainage system, and thus, unless constructed, the money already expended would be largely wasted.
The cause was submitted upon the pleadings and the testimony of the engineer. This testimony was to the effect that the main canal’s outlet was never adequate, but was the only one available when the plans for the improvement were made, and-that, because of the inadequate outlet, a large body of land in the district not only derives no benefit from the improvement, but,, on the contrary, is greatly damaged by the overflowing of the canal. • ITis testimony establishes the fact that an additional outlet may now be had by constructing an additional canal draining into Plum Bayou, as stated above.
The court found, from the testimony of the engineer, that the proposed additional canal is incidental and essential, and not original and independent, to the original drainage system, and that its construction was authorized by the drainage law. The complaint of appellant was dismissed as being without equity, and he has appealed.
The proceeding whereby the county court authorized the construction of an additional canal was had under ■§ 3630, C. & M. Digest, and the question for decision is whether that section of the statute conferred jurisdiction on the county court to make the order authorizing this work.
This section of the statute was § 22 of the drainage acts of 1909 (Acts 1909, page 829), and reads as follows: “The district shall not cease to exist upon the completion of its drainage system, but shall continue to exist for the purpose of preserving’ the same, of keeping the ditches clear from obstructions,- and of extending, widening or deepening the ditches from time to time as it may be found advantageous to the district. To this end the commissioners may, from time to time, -apply to the county court for the levying of additional taxes. Upon the filing of such petitions, notices shall be published by the clerk for two weeks in a newspaper published in each of the counties in which the district embraces lands, and any property owner seeking to resist such additional levy may appear at the next regular term of the county court and urge his objections thereto, and either such property owners or the commissioners may appeal from the finding of the county -court.”
This section of the drainage act was thoroughly considered in the case of Indian Bayou Drainage District v. Walt, 154 Ark. 335, 242 S. W. 575, in which case the commissioners of the drainage -district sought to construct an additional canal ánd outlet. In that case it is recited that the canal which the commissioners proposed to dig’ was not an extension of the canal originally constructed pursuant to the plans of the district, nor was it a widening or deepening of the ditches that were already completed. What was there said is equally true here of the proposed new outlet. It was not a part of the plans of the district; on the contrary, it affirmatively appears that the purpose of the new canal is to furnish an outlet which was not available when the original plans were made and approved, on which the assessment of benefits was based, nor did this outlet become available until after the improvement had been completed.
In the Indian Bayou case, supra, it was said that “specific authority for making an improvement of this character must be found in the law, and it is impossible to find in the language of § 3630, supra, giving the words ‘ extending, widening, or deepening, ’ their plain and natural meaning, any authority for the construction of a new and independent improvement * * It was there further said that this section of the statute conferred power upon the commissioners to preserve the drainage system after it had been completed, but that no power was conferred to construct a new and independent drainage canal.
The construction given § 3630, supra, in the Indian Bayou case was reaffirmed in the case of Bayou Meto Drainage District v. Ingram. 165 Ark. 318, 242 S. W. 575. In that case the plans were amended to afford an additional outlet for drainage, and it was contended that this could not be done, once the plans had been made and the assessment of benefits confirmed. After stating that authority was conferred by the statute to make such changes in the plans.as were found necessary to afford drainage to the lands in the district after the approval of the plans and the confirmation of the assessment, it was said: “Viewing the statute in that light, we think that the language of the sections referred to is sufficient to authorize a change of plans and an extension of the boundaries at any time before the completion of the improvement as originally planned, and that if, at any time before that point is reached, it is found that the scheme will prove abortive unless there be an extension, and that other lands will be benefited by sneh extension, further proceedings may be had to that end.”
It was there further said: “If the statute authorizes the change of plans and" extension of boundaries, after the approval of the original plans and the assessment of benefits, then it follows that it may be done at any time before the improvement is completed, for there is no other period in the proceedings at which the authority may be limited.”
It thus appears that, while authority is conferred to make changes in the plans of the improvement (subject to the duty to reassess betterments to. conform thereto), when such changes are found necessary as the work progresses, this authority is at an end, when the plans, original or revised, have been executed.
So here, while the testimony of the engineer shows the necessity for the new outlet to make the proposed improvement a success and to afford the relief contemplated in the organization of the district, it is also shown with equal certainty that this new canal was no part of the plans of the district as originally approved or subsequently revised, and the proceeding in the county court for its construction was not instituted until after the district was a completed project.
The proposed outlet may be necessary and the project without it may be unsuccessful, but this proves only that the original plans, pursuant to which the improvement was constructed, were defective; but this áffords no authority, under the statute quoted, as construed in the cases cited, to dig an additional canal after 1he plans have been fully completed.
It follows therefore that the court was in error in dismissing the complaint of appellant, and the decree is reversed, with directions to grant the relief prayed.
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Humphreys, J.
This suit originated in the county court of Mississippi County, under §'4 of act 380 of the Acts of 1919 of the General Assembly of Arkansas, creating Road Improvement District No. 1 in said county. The section referred to is as follows:
“Should the board of directors find it necessary or desirable to change the location of the road described in § 2 of this act, or to widen the right-of-way of said road, they shall file a petition, signed by a majority of the members of said board, with the clerk of the county court of Mississippi County, describing the nature of the alteration or change, the point of beginning and terminus of said change, the width and description of any property that may be taken or damaged by reason of said change. Said court shall cause an order to be entered of record in accordance with its findings, and establish said record, if it deems best, and any landowner aggrieved may present his claim for damages to the county court, and any such claim not presented within twelve months shall be barred. All damages so awarded shall be paid by said road district. The said directors shall have the right to open such road so established.”
The road designated in § 2 of said act, to be improved, extended from the Missouri State line through the town of Osceola, in Mississippi County, to the Crittenden County line. The original route through Osceola pass,ed down Pecan Street, one block east of the Frisco Railroad to Keiser Avenue, thence west across the railroad tracks and along the south boundary line of a twenty-six acre tract of land belonging to appellant, situated in the southwest corner of the corporate limits of Osceola, thence, continuing on west. The road was to be constructed out of concrete, with a warrenite surface. The road was constructed in accordance with the plans along the south side of the twenty-six acre tract in question. After constructing the road to this point, the route through Osceola was changed so as to run down Walnut Street, through said twenty-six acre tract, one and a-half blocks west of the Frisco Railroad, taking 1.93 acres. The effect of the change was to make a spur out of the original road constructed along the south side of said tract. The new route and the original route were two and one-half blocks apart, and were so close together that a new assessment of benefits was not assessed against the property in the district on account of the change in route. The plans for changing the road were filed with the board of directors in February, 1924. Appellant filed her petition or claim for damages under § 4 of said act, on March 2, 1925, for the value of the strip of land occupied by the new road resulting from the change in the route.
On the trial of the cause in the county court, appellant was awarded damages in the sum of $800, from which award 'both parties appealed to the circuit court of Mississippi County, Osceola District, where the case was tried de novo, resulting in a judgment of $300- against appellee, from which is this appeal.
The case was tried in the circuit court upon conflicting testimony as to the value of the strip of land actually taken for the new road out of the twenty-six acre tract, less the enhanced value to the balance of the tract on account of the construction of the concrete road with warrenite surface through it.
During the trial of the cause the court excluded testimony offered by appellant, over her objection and exception, to the effect that special benefits in the sum of $1,610 had been assessed and levied as a tax against said twenty-six acre tract on account of the construction of the proposed improvements. The testimony was excluded upon the theory that the market value of the strip of land taken should be offset by the enhanced value of the balance of the tract by reason of the construction of the road.
The trial court instructed the jury, over the objection and exception of appellant, as follows: “You are instructed that your verdict in this case will be for the plaintiff for the market value of the land taken by the defendant at the time same was taken, less any sum you may find from the evidence the rest of the land has been enhanced in value, if you find it has been enhanced in value, by the construction of this road through that land. ’ ’
Appellant contends for a reversal of the judgment on account of the exclusion of said testimony and the declaration of law announced by the court as to the measure of damages. In excluding the evidence and formulating the rule for the measure of damages, the trial court was governed by the rule announced in the case of Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707, and reaffirmed in the case of Paragould v. Milner, 114 Ark. 334, 170 S. W. 78, to the effect that “where the public use for which a portion of a man’s land is taken so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in benefits.”
The rule announced in those cases is not applicable in the instant case. The twenty-six acre tract out of which the strip of land was appropriated 'by the district to make the change in route was assessed according to the benefits it would receive from the improvements, to help pay for same. If the benefits accruing to the tract of land on account of the construction of the improvements should be deducted from the market value of the strip actually taken, in arriving at appellant’s damage, he would be compelled to pay twice for the benefits — once in taxes and once in land.
The instant case is governed by the rule announced in the case of Gregg v. Sanders, 149 Ark. 15, 231 S. W. 190, to the effect that “there can be no deduction of any part of the damages from the compensation to be allowed to a property owner for that portion of his property which is taken and used in the construction of the improvement, for the reason that he pays for his benefit in taxes, the same as other property owners, and it would destroy the rule of equality to require him to contribute to the common use any part of his property without compensation.” The eminent domain portions of our Constitution guarantee just compensation to the owner of private property taken for public use. Article 2, § 22, of the Constitution of Arkansas of 1874.
On account of the erroneous classification of this case the judgment is reversed, and the cause is remanded for a new trial.
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Mehanny, J.
The appellant is a mutual benefit association, organized in 1913, and issues policies or benefit certificates to its members, and they are divided into groups or circles. The appellees were members and certificate-holders, and the certificates entitled them to $500 each, but the promise to pay $500 was upon the condition that prompt and due payments be made by the cer7 tificate-holders of all assessments made under the rulings of the company.
There is no controversy as to the certificate-holders, parties to this suit, having paid their dues, and there is no controversy about liability. The appellant contends, however, that it is only liable in one case for approximately $208 and in the other something like $285, and contends that the policy or certificate entitles the member to collect $500 only in the event that one assessment on the members of the circle or group in which said member may be placed, less the cost of collecting said assessment, equals the $500. The contention is that the company is liable for the assessments collected, in that particular group or circle, and, if that amounts to $500, after deducting the cost of collecting the assessments, then the beneficiary will be paid $500. If it amounts to less than $500, then the beneficiary under the certificate is entitled to the amount collected less the cost of collecting.
This court has several times held that provisions like this in the policy or certificate are valid and binding, and, in a case not long since, the court said:
“The by-laws provide that the maximum amount of the benefit is to be the sum of one thousand dollars, and that the value of a benefit certificate shall be ‘ contingent on the full and prompt payment of all assessments by the members of the class to which the applicant belongs, and in no event shall said certificate have a greater intrinsic value than the amount paid in by the whole membership of said class on the last assessment, after deducting the actual cost of collecting said assessments.’ * * * The undisputed testimony is that the amount of the last assessment preceding the death of Tate was $475, and this is the limit of the amount recoverable on this certificate.” Fayetteville Mutual Benefit Assn. v. Tate, 164 Ark. 317, 261 S. W. 634.
Again this court has said, in deciding a case similar to this: “We are of the opinion, however, that the judgment is excessive, and that, according to the undisputed evidence, appellee is only entitled to recover $124.40, ‘the amount paid in by the whole membership of said group on the last assessment preceding the death of the insured.’ ” Home Mutual Benefit Assn. v. Rowland, 155 Ark. 450, 244 S. W. 719, 28 A. L. R. 86.
Under the decisions of this court, the company in this case would have been liable to the beneficiaries under these certificates for the amounts collected from the assessments, less the cost of collection. The only person, however, who could show what had been collected on this assessment was the company itself, or its officers. It is contended that, in one group, there were only 499 members, if that many, and that the assessment therefore could not have produced as much as $500. Appellant’s counsel, however, apparently overlooked the fact that the minimum assessment was $1, and the maximum assessment $1.40. It is conceivable that the assessment might have exceeded $500, after deducting- the cost of the collection, and the bookkeeper testified that, in this particular group, they had at least 499, unless some of them had lapsed, and that the record the witness testified from did not show any lapses. She also testified that the smallest assessment was $1, and from that graduated up 2 cents a month, and that this was true also of the other group. She testified also that the records show the total amount received from the assessment made on the death of Mr. Weatherly was $218.41, that the cost of collecting was $10, leaving- a balance of $208.41, and this is the amount the company admits it owes under this particular certificate, and under the other certificate the assessment amounted to $303.91. The assessment was evidently properly - made, at any rate there is no contention that this was not done," and the assessments were collected, and it appeared that'the $208 and $285, approximately, were the amounts received within 30 days after the assessment was made, and that sometimes there would be quite a little money come in from the assessment after the 30 days expired. There is no attempt to show how much came in from the assessment after the 30 days had expired. Neither the secretary nor the officers of the company testified, and, when the court directed them to bring in their daily records, the witness stated they could not go through all that, they would have to go through each book, and the daily records were never brought in. The officers of the company had in their possession the records that would have shown the exact amount of the collections from each assessment. No one else was in possession of these facts; and, if the company did not want to be held liable for the $500, it was its duty to produce the evidence and thereby show the exact amount each beneficiary was entitled to.
This court has said: “As to the burden of proving the amount realized, or which could have been realized, by an assessment levied according to the terms of the contract sued on, the authorities are not agreed. We are of the opinion that, where the party suing on such contracts is entitled to recover, the society or association which agrees to make the assessment upon its members, and to pay the amount realized, not exceeding a certain amount, to the beneficiaries named in the contract, is prima facie bound to pay the maximum amount of its liability, as specified in the contract, and the burden is on the society to prove that a less amount would have been realized by an assessment. ’ ’ It would be difficult, if not impossible, for the beneficiaries in such contracts, or their representatives, to show the number of the assessable members of the society and the amount that could be realized by an assessment upon them. These are facts within the peculiar knowledge of the society.” Masons’ Fraternal Accident Assn. v. Riley, 65 Ark. 261.
In the case at bar the bookkeeper alone was called to testify. The daily records, and in fact all the records that would have thrown light upon the question, were in the possession of the association, and not only was the burden of proof on them to show the amount realized on the assessment, but the duty is always upon a party having in his possession evidence or documents that will prove or disprove his claim, to produce the documents, or, if he can and does not produce them, the presumption is that they would not be favorable to his contention.
“And so it has become a well-established rule that, where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation, he fails to do so, the jury may draw an inference that it would be unfavorable to him.” 10 B. C. L. 884.
The association had in its possession not only the records that Avould show the assessment made and collected after the death of the assured, but also had the records in its possession that Avould show the amount of the last assessment prior to the death of the assured. In this case it is unimportant to determine whether the beneficiary should receive the amount of the last assessment prior to the death of the assured, or the amount received from the assessment made subsequent to his death, because the association does not show the amount of either, and, as the burden of proof was upon the association to show the amount realized from the assessment and did not do so, the beneficiary is entitled to recover the sum named in the certificate. While the testimony showed that $500 was not realized from the assessment within 30 days, it does, not show how much money came in after the 30 days. Witness says that the money that comes in after the end of the month is put in a reserve fund to be paid out in cases where no assessment is made, but the benefit certificate provided for the payment of $500, provided that the liability of the association shall in no event exceed the amount produced by one assessment on the members of the circle in which said member may be placed, less the cost of collecting said assessment. That means the whole amount produced by one assessment, less the cost of collection, and it would be immaterial whether it came in before or after 30 days, and, since there no proof by the association showing the amount produced by the assessment, it is liable for the $500, the amount named in the certificate.
We think in this case the same principle, with reference to producing evidence, applies to the sureties on the bond. They could have produced evidence showing the amount of the assessment and the amount of the liability, but did not do so. No. claim for attorney’s fees or damages was made in the court below, and for that reason none will be allowed here. The evidence is ample to support the finding of the court, and the judgment is affirmed.
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Humphreys, J.
This is an appeal by the State Bank Commissioner, Loid Rainwater, from a decree of the chancery court of Franklin County, Ozark District, allowing the claim of S. J. Davis, collector of taxes and other public revenues of Franklin County, to the amount of $13,587.03 as a preferential claim against the assets of the People’s Bank of Ozark, Arkansas, which became insolvent and passed into the hands of said Commissioner. The amount allowed by the trial court to said collector as a preferred claim had been collected for licenses for automobiles due the State of Arkansas for the year 1926, and had been deposited in said bank in his name as collector of said county.
The trial court allowed the claim as a preference, under his construction of § 2832 of Crawford & Moses’ Digest, as modified and amended 'by § 8 of act 627 of the Acts of 1923. Section 2832, Crawford & Moses’ Digest, is as follows:
“It shall be unlawful for any officer of this State, or of any county, township, city or incorporated town in this State, or any deputy, clerk or other person employed by any such officer, having the custody or possession of any public funds, by virtue of his office or employment, to use any of such funds in any manner whatsoever for his own purpose or benefit, or to loan any of such funds to any person or corporation whomsoever or whatsoever, or to permit any person or corporation whomsoever or whatsoever to use any of such funds, or to pay or deliver any such funds to any person or corporation, knowing that he is not entitled to receive it, or for any such officer to willfully fail or to omit to pay any such funds to his successor in office at the expiration of his term of office; but collectors of taxes, county treasurers and treasurers of cities and incorporated towns may deposit the public funds in their custody in incorporated banks for safekeeping; and the said officers and the sureties on their official bonds, the bank and the stockholders of the bank shall be liable for all funds that such bank on demand shall fail to pay to the person entitled to receive the' same.”
The amendment of 1923 to said section omitted the liability of stockholders for public funds deposited in incorporated banks, except in so far as such funds are protected by the double liability of stockholders in § 36 of the Banking Act of 1913, Acts-1913, page 462, which is as follows:
“The stockholders of every bank doing business in this 'State shall be held individually responsible equally and ratably, and not one for another, for all contracts, debts and engagements of such bank, to. the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such stock.”
This court construed § 2832, Crawford & Moses’ Digest, before it was amended by § 8 of act 627, Acts of 1923, in the case of Warren v. Nix, 97 Ark. 374, 135 S. W. 896, to mean that collectors of taxes and certain other officers named therein could make a general deposit of public funds in an incorporated bank. It was specifically decided in that case that authority to deposit public funds for “safekeeping” in an incorporated bank only did not restrict such deposits .to special deposits. The interpretation placed upon § 2832 of Crawford & Moses ’ Digest in the case of Warren v. Nix, supra, was reaffirmed in the case of Wallace v. Davis, 123 Ark. 70, 184 S. W. 834. The language of said section was not changed one. whit by the amendment thereto in 1923, so the amendment, or modification, was, in effect, an adoption ■ by the Legislature of the construction given said section in the cases of Warren v. Nix and Wallace v. Davis, supra. As stated above, the only effect of the amendment of 1923 to § 2832 óf• Crawford & Moses’ Digest was to relieve the stockholders of an incorporated bank from liability for deposits of public funds made as general deposits, except on their general liability of an additional 100 per cent, assessment, if the bank in which they owned stock should become insolvent.
In the instant case the collector of taxes deposited public funds in the incorporated bank as a general deposit, thereby creating the relationship of debtor and creditor between himself and the bank. The trial court erred in preferring his claim over other nonpreferred claims.
The decree is therefore reversed, and the cause is remanded with instructions to allow the claim as a common one.
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Wood, J.
In August, 1923, the plaintiff met the defendant, Dr. Clark, and Judge Gould, and the three of them inspected a well which had just been drilled in and known as the Magnus well. G. M. Martin was the owner of a lease which was an offset to the lease on which the well was located, and the pláintiff, having information that Martin would be willing to sell the lease for a consideration payable entirely out of oil, advised Dr. Clark and Judge Gould of this fact, and, after some discussion, it was agreed that they would acquire the lease and undertake its development. The Magnus well was a rather large well, and the parties believed that the first well on their property would be at least a four-hundred-barrel well, which, as they figured it, -Would be sufficient to insure sufficient money to carry on the further development of the lease. The most serious problem confronting them was the matter of financing the drilling of the first well, which, according to the then prevailing prices, wouid cost $10,000. It was finally decided that Dr. Clark wonld contribute $5,000, and would own a half interest in the lease, that Judge Gould, or rather his wife, Beulah Gould, would contribute $4,000, and would own a four-tenths interest in the lease, and that the plaintiff, Lewis, would contribute $1,000 and would own a one-tenth interest in the lease. The amounts were paid into the fund, and the lease acquired in the name of Dr. O. W. Clark, trustee. No declaration of trust or other writing evidencing the trust was executed, and the rights and duties of the parties were not defined. It was agreed that Mr. Lewis, who was an experienced oil operator, would operate the lease, and it seems that he employed all the labor, bought the necessary material, and was in full charge of the actual operations. Dr. Clark seemed to hold the purse, strings, and all invoices for material and possibly statements of account for labor were sent to him, likewise the payments received from the pipe-line companies were made to him, and he handled all the receipts and disbursements for the enterprise. Just what duties Judge Gould, as the agent of his wife, performed, is not clear. It is admitted that there was no agreement that Dr. Clark would receive any salary, but it is undisputed that Lewis should receive $200 per month for superintending the lease. The evidence shows that this amount was meager and far below the customary salary paid for such work in the field, and Mr. Lewis explains this by saying that it was understood that, in case more than $10,000 was needed, Dr. Clark and Mrs. Gould would advance his portion and charge him no interest.
When, after several months of operation, Lewis could obtain no statement from Clark, he brought this suit for an accounting. He alleged the respective interests of the parties, and alleged that they were to share in all profits and all losses in proportion to their interest. This was admitted by the answer. Plaintiff prayed for the appointment of a master to- state an account, and the defendants -consented to such an appointment. Dr. Clark presented an account, on which he made no claim for salary, for traveling expenses, or for interest on money which he claimed to have advanced to the enterprise.
Before the close of the taking of the testimony in the case before the master, Dr. Clark, at the suggestion of his counsel, filed a claim for his services and interest on money he. had advanced, and for his expenses. During the taking of his testimony he and his counsel assumed that the relation he sustained toward those' associated with him in the development of the lease was that of trustee. This is shown by the questions asked by his counsel and answered by him.
The master filed a report, too voluminous to set forth, in which he states that the testimony shows that O. W. Clark was trustee for himself and his associates in owning and operating the lease. Exceptions were filed by both the plaintiff and the defendant to the master’s report, and the court held that the master had erred in stating the account on the theory that the subject-matter of the cause was a trust estate, and directed the master to restate the account between the parties, basing the same on the theory that the relation existing between them was that of partners and not that of a trust estate. The final decree recites as follows: “That the plaintiff, J. I. Lewis, do have and recover of and from O. W. Clark, trustee, and Mrs. Beulah Gould an undivided one-tenth interest in and to all of the net profits derived from the operation and sale of the oil and gas lease covering the following described land, to-wit: The west half of the southeast quarter of section 24, township 15 south, range 17 west, lying south and west of the Missouri Pacific Railroad, in Ouachita County, Arkansas, in keeping with the statement and finding of the amended and substituted report of the master heretofore filed in accordance with the directions of the court heretofore made; that the plaintiff do have and recover of and from said defendants all his costs in and about this cause laid out and expended. To all of which the defendants except, and ask that their exceptions be noted of record, which is accordingly done. Whereupon said defendants pray an appeal to the Supreme Court of Arkansas, which is granted.”
The above are the facts as stated by counsel for the plaintiff. Counsel for the defendants set forth the complaint and answer, the report of the master and the exceptions thereto filed by the plaintiff and the defendant, and state: “We deem it unnecessary to abstract the testimony of the various witnesses testifying before the master, for the reason that practically all of said testimony was directed toward the establishment or dis-allowance or some identification of some item of expense incurred in the operation of the property in question. Inasmuch as the findings of fact by the master are sustained in most instances 'by a preponderance of the evidence, we shall merely set out the report of the master, and not incumber the brief with an extended abstract of the testimony of the various witnesses.”
1. The appellant concedes that the only issue is, what was the relation existing between the appellant and the appellees with reference to the ownership and operation of the oil and gas lease covering the property described in the complaint? The appellant contends that the property described in the lease was a trust estate, of which he was trustee, and of which appellee was a beneficiary, and the appellee contends that the relationship between the parties was that of partners. The facts as set forth by counsel for the appellee aré correct, and the finding of the court that these facts established a partnership between the parties in interest is not against a clear preponderance of the evidence. The appellee alleged in his complaint, in substance, that the appellant trustee had purchased the lease of the lands in controversy, and that, after such purchase, he employed appellee to superintend the drilling operations, and agreed to pay him for his services in the sum of $200 per month and his expenses. The appellee also alleged that he purchased an undivided one-tenth interest iri the oil and gas lease and paid the appellant the sum of $1,000 therefor in cash, and that appellee was to share in all profits and losses in proportion to the amount expended on the lease fay the appellant.
The appellant, in his answer, admitted these allegations of the complaint, and alleged that “he holds the legal title to said lease in trust; that, as such trustee, he holds the same for the appellee a one-tenth interest, for himself a five-tenths interest, and for James Gould a four-tenths interest, after all expenses and obligations of the trust are paid and discharged.” Appellant contends that these allegations of the pleadings show that the appellant was a trustee of the appellee, and not a partner, and that the parties are bound by the allegations of their pleadings, since neither party asked that the same be amended. But it cannot be determined merely from the allegations of the pleadings whether the relationship between the appellant and the appellee was that of a common-law, or “Massachusetts,” trust, or whether it was a partnership. From the allegations of the pleadings alone, the theory that the relationship between the parties was that of a partnership can be as plausibly maintained as that the relation was that of a common law, or “Massachusetts,” trust, such as was declared by us to exist in Betts v. Hackathorne, 159 Ark. 622, 252 S. W. 602. Learned counsel for the appellant contend that the doctrine of that case applies to the- pleadings and testimony in this record and establishes the relation between the parties in the case at bar as that of a common-law, or pure business," trust, commonly known as a Massachusetts trust, rather than the relation of a partnership. In that case we said: ‘ ‘ The only right accorded to holders of certificates of stock is to share in profits or dividends. They are in the attitude of one of lending money to a partnership for a share of the profits in lieu of interest. A reading- of the trust instrument in its entirety has convinced us that the shareholders are not associated with each other and the trustees for the purpose of conducting a business in person or through, agents for a profit. There is nothing in the instrument showing an intention on the part of the shareholders to enter into a copartnership, or an intention on the part of the trustees to cooperate with the shareholders in the conduct of the business. The test, after all, in determining whether a business is a partnership, is to ascertain whether the parties intended one.” In the case of Haskell v. Patterson, 165 Ark. 65, at page 90, 262 S. W. 1002, in construing an instrument of writing, we said: “It is certain that this syndicate is not a pure common-law trust, as was created by the instrument in Betts v. Hackathorne, 159 Ark. 621-625, 252 S. W. 602. The syndicate created by the instrument under review combines some of the features of a partnership with those of a pure trust, but the predominant features are those of a partnership rather than a pure trust, because the interest-holders have the power to amend the declaration of trust, to remove the trustees without cause and substitute new ones, to continue or to terminate the trust, to require of the trustees a statement of their accounts in dealing with the syndicate and its assets, and to transact any other business pertaining to the properties of the syndicate specified in the call for their meeting. In other words, here the beneficiaries or interest-holders are the masters of the trust, rather than the trustees. Where such is the case the association or syndicate should be classified as a partnership, rather than a pure trust.”
Counsel for appellant contend that, under the doctrine announced in Haskell v. Patterson, above, neither the appellee nor the Goulds had any power or authority to change or to alter the agreement of Clark, the trustee, with reference to his authority; that they had no power to remove him, nor to substitute another in his place as trustee; that they had no power to continue or to terminate the trust; that neither the appellee nor the Goulds had any power or authority to require Clark, as trustee, to make any statement of his accounts in dealing with the trust estate and its assets; that neither appellee nor the Goulds had any power to transact any business whatever pertaining to the properties held by Clark as trustee. In the above cases the court was construing written instruments purporting to be declarations of trust, and, under the facts developed in those cases, the doctrine above quoted was announced. There was no instrument in the case at bar purporting to create a trust. True, the deed was taken in the name of Clark as trustee, but there was no instrument defining and declaring what his rights and powers, his duties and liabilities, should be. The mere fact that the lease was taken in his name as trustee did not constitute him the trustee of a pure business trust vested with the powers, responsibilities and liabilities of such trustee. In 20 R. C. L., p. 859, § 66, it is said: “Where real éstate is acquired in a partnership business, and for. its purposes, it is partnership assets, though the legal title be taken in the name of one of the partners. Whether real estate standing in the name of a member of a partnership is, as between the partners, to be treated as partnership property must be determined by ascertaining, from their conduct and course of dealing, their understanding and intention. Here, as in other cases, the intention may be shown by parol, in the absence of written evidence, and where the partners intend that the property shall be partnership assets, the fact that the title is taken in the name of one of the partners will not affect the question. Real estate is not necessarily the individual property of the members of the firm because the title is held by one member in his individual name, and, if several persons purchase real estate as a speculation, they may become partners in respect to it, and the mere fact that the title is taken in the name of one of them, although he executes a mortgage for the unpaid purchase money, does not change the relationship of the parties or the ownership of the property.”
Under the oral testimony in this case the trial court was justified in finding that, although the lease was taken in the name of the appellant as trustee, nevertheless it was the intention of the appellant and the appellee and the Goulds, in the development and operation of the lease, to hold the property as partnership assets. The proof shows that the appellee and the Goulds did transact business pertaining to the operation and development of the lease; that the appellee bought materials and hired labor and was in full charge of the operations, and James Gould, acting for his wife, counseled with Dr. Clark concerning the management, control and disposition of the property. We believe the preponderance of the testimony warrants the conclusion that these parties joined together their money, Dr. Clark contributing one-half, Mrs. Gould two-fifths, and the appellee one-tenth, with the mutual understanding that they should sh_are in the gain and the loss in the purchase and development of the gas and oil lease in the proportion each had contributed. This, under our cases defining partnership, would constitute them partners. In Stevens v. Neely, 161 Ark. 114, 118, 225 S. W. 562, quoting from Howell v. Harvey, 5 Ark. 270, we said: “A partnership, in its most significant and extended sense, is a voluntary contract of two or more persons for joining together their money, goods, labor and skill, or either of them, upon an agreement that the gain or loss shall be divided proportionately between them, and having for its object the advancement and protection of fair and open trade. . In later cases this court has said that a partnership may be defined as the relation existing between two or more persons who have agreed to carry on a business together, and to share the profits thereof as the joint owners of the business. This court has also held that participating in the profits of a partnership is of itself cogent proof that the person who does so is a partner, and that, if unexplained, this may 'be conclusive proof. Johnson v. Rothschilds, 63 Ark. 518; Herman Kahn Co. v. Bowden, 80 Ark. 23, and cases cited; and Mehaffy v. Wilson, 138 Ark. 28.” See also 20 R. C. L. p. 800, § 2.
The decree is correct, and it is therefore affirmed.
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Mehaeey, J.
This suit was begun in the Chicot Circuit Court, the plaintiff alleging in its complaint that it was a special consolidated school district, created under the acts of the General Assembly, and that C. F. Thompson was elected and served as president of said district for and during the years 1921, 1922, and 1923, and that-M. C. Hall was elected secretary and served during the years of 1921, 1922 and a part of 1923. That, by virtue of the office as secretary of said district, said Hall acted as secretary of said board, and it was his duty to draw warrants and pay debts on the proper order of said board, to be signed by the president, C. F. Thompson, and M. C. Hall, as secretary. That W. J. Splawn was the regularly elected and duly qualified and acting county treasurer of Chicot County for and during the years 1921, 1922 and 1923, and was custodian -of all the school funds of Chicot County and the Haley-Thompson Special Con solidated School District, and had and held in his hands funds of the said district which had come to his hands from the various sources of taxes and apportionment and belonging to said district during those years. That, during the years above mentioned, the said M. C. Hall, as secretary of said Haley-Thompson Special Consolidated School District, unlawfully and without warrant or authority illegally drew and signed the name of the president, C. F. Thompson, to a great number of warrants of said district, which warrants were unlawfully cashed and illegally paid by the said W. J. Splawn, county treasurer of said county, without any authority or right on his part to do so. That, by reason of said W. J. Splawn cashing and paying said illegal warrants, the Haley-Thompson Special Consolidated School District has been damaged in the sum of $1,507.17, interest and costs. The warrants are then described in the complaint, giving the number, amount, payee and date of warrants, and plaintiff prays judgment for the amount above mentioned, interest and costs.
Defendant filed motion to require plaintiff to file the warrants sued on, which warrants were filed in compliance with said motion. The defendant answering, admitted that Thompson was president and Hall was secretary of plaintiff school district, and had duties, power and authority to issue warrants, as alleged in said complaint. Defendant alleged that, as county treasurer, he was advised that it was the practice and custom of Thompson, president of said board, to sign warrants in blank, and in some instances authorizing the signing of his name to warrants by Hall, the then trusted secretary of said school district, and authorizing said secretary to fill in thereafter the amount and purpose for which said warrants were issued,, and that all such-warrants which were presented and paid by this defendant were paid in good faith and without any knowledge of alleged illegality or lack of authority to issue any of such warrants, and that plaintiff should thereby be estopped from any right of action against the defendant. Defendant denied that plaintiff was damaged in the sum mentioned or any other sum by reason of the issuance and payment of said warrants, but alleged the truth to be that most of said warrants wore issued in payment of salaries earned by teachers under contract with said school district and the remainder thereof on payment of allowances by the board of directors of said school district for necessary incidental expenses of operating schools and expenses of improvements of buildings, etc., and prayed that the complaint be dismissed.
Defendant thereafter filed an amendment to his answer, alleging that he presented said warrants for credit and cancellation, as the law requires, to the Chicot County Court, and that said warrants were duly examined, audited, allowed, canceled, and his accounts credited with same. That judgment approving said settlement and allowing him credit for said warrants, as set forth in the complaint, 'by the Chicot County Court, was duly entered. That said judgment still stands as a record of said court; that the plaintiff had its day in court, and that plaintiff has not filed petition to set aside said settlement, nor to reopen same, and has taken no appeal, and pleads the judgment of said county court.
Plaintiff theh filed reply to the amendment to answer, stating that the complaint was filed in May, 1924, answer filed at October term, 1924, continuance granted, and that the amended answer was filed at the time. Plaintiff states that it was not before the county court when defendant presented fraudulent warrants and obtained the order giving defendant credit for them, and was not a party to the suit; that the county court had no jurisdiction nor authority to enter an order crediting said Splawn with the amount of said fraudulent warrants; that the warrants were void; that, upon the discovery of the fraud in issuing said warrants, President Thompson, W. T. Knight, director, and other directors of the district took the matter up with the county superintendent, D. T. Henderson, and the defendant, W. J. Splawn, as county treasurer, and that, at a conference between the plaintiff and defendants, the county superintendent and M. O. Hall, the defaulting- secretary, the amount of the defalcation and fraudulent warrants issued by said Hall as secretary was fixed and arrived at, the said Hall ag-reeing to pay the amount to the said Splawn, county treasurer, and during this proposed settlement and adjustment the defendant, Splawn, appeared in the county court and presented the warrants for cancellation and credit, without the knowledge or consent'of plaintiff or its officers.
The court entered the following order: “On this day this cause is heard by the court upon the amended answer of defendant, which is taken and considered by the court as a motion in abatement of plaintiff’s suit, and upon due consideration thereof said motion is sustained. It is therefore considered, ordered and adjudged by the court that plaintiff’s complaint and cause of action herein is abated and dismissed, and that plaintiff pay all costs herein. To which ruling of the court in sustaining said motion and dismissing plaintiff’s suit, the plaintiff at the time excepted.”
The defendant introduced the county clerk, and by him introduced the records, and the clerk also testified that the warrants were presented by the county treasurer to the county court in open court, canceled, and credited to the proper account of the county treasurer. That he gave the warrants to Mr. Kirten, attorney for the school district, some time last year; that all the warrants involved in this suit were canceled at various times by the county court and credited to Splawn’s account, and filed certified copies of the judgments. The judgments were dated August 19,1922; February 1,1922; October 1,1921; September 18, 1922. The treasurer’s certified copy of the treasurer’s, settlement was filed October 6, 1925. The clerk further testified that a balance was struck, and he exhibited whatever money he had on hand. Plaintiff ■renewed his motion to exclude the testimony of witness as incompetent, which motion was overruled; the court then stated he thought the plea in abatement which was in the answer was well taken, and that the defendant should have judgment. Plaintiff filed its motion for new trial, which was overruled, and plaintiff prayed an appeal to the Supreme Court, which was granted.
The appellee begins his argument by stating: “The only questions involved upon this appeal, as presented by the record, are: 1. Did the plaintiff’s complaint present a cause of action? 2. Did the circuit court have jurisdiction to try and adjudicate the matter involved upon the record made and presented?”
His contention is that, before suit could be brought in the circuit court, it would have to be made to appear that the county treasurer had made his settlement and .that the settlement showed a balance due; that this was necessary to fix the liability of the treasurer, and cites cases holding that it was necessary for the declaration to contain an averment that the officer had settled with the county court and failed to pay over the amount due, or that he had failed to settle and the county court had proceeded to adjust his account. It is said in one of the cases:
“The county court is the forum where the liability of thé collector upon which that of his securities depend, is to be ascertained and evidenced 'by his records. An adjudication in that forum is conclusive evidence against the securities as well as the collector in an action • upon his bond in the circuit court. There can be no lia-' bility upon the collector’s bond without such adjudication, unless the circuit court can, in an action upon the bond, draw to itself in a collateral way jurisdiction to investigate and settle the accounts of delinquent officers for the collection of revenue which apparently belonged to the county courts.” Jones v. State use of Pope County, 14 Ark. 170.
It should be remembered that the above case was with reference to the settlement of the accounts of the collector, and what the court held there was that, when that was true, the circuit court did not have jurisdiction to investigate and settle the accounts of the delinquent offi cers for the collection of revenue which appropriately belonged to the county court.
The next case to which attention is called by appellee is the case of Greene County v. Croft, 24 Ark. 550, in which case the court held that it was the duty of the county court to cause settlement to be made with the treasurer to ascertain the state of accounts and strike a balance, if any due him, that this was necessary in order to fix the liability of the treasurer and his securiti.es upon the bond, and in a suit upon a bond this was a necessary averment.
In the case of Graham v. State use of Monroe County, 100 Ark- 571, the court also held that, before suit could be brought in the circuit court, it was necessary, in order to fix the liability of the sureties of the treasurer, that a settlement should be made with him by the 'county court, as the law requires, and the amount due determined and ordered to be paid by it before suit could be brought against his bondsmen for any default. That such judgment, when made, is conclusive as to the liability of the sureties, and that it is a condition precedent to the bringing of a suit against them.
It was again held that suit could not be brought in the circuit court before a determination and adjudication fixing the liability of the sheriff’s account. State use of Columbia County v. Nabors, 103 Ark. 16, 145 S. W. 550.
It may therefore be conceded that, if this were a suit against the treasurer for any amounts growing out of or in connection with the settlement required to be made with the county court, no suit could be brought until the county court had examined and passed upon the accounts .of the treasurer. This, however, is not a suit of that character, but is a suit for damages for paying warrants in violation of law. It is provided by statute: “When the warrant of any board of directors, properly drawn, is presented to the treasurer of the proper county, he shall pay the same out of any funds in his hands for that purpose .belonging to the district specified in said warrant.” Crawford & Moses’ Digest, § 8925.
This wrongful act, if it were wrongful, had nothing to do with his accounts or with his settlement with the county court.
This court held, in the case of Hendrix v. Morris, 127 Ark. 222, 191 S. W. 949, that the warrants of a school hoard issued in payment of the cost of transportation for pupils were invalid when issued by districts other than such school districts as became consolidated school districts in the manner and under the terms of the act. This court reversed the case, and held that the court should have enjoined the issuance or payment of any warrant covering the operation of the automobile, as prayecl by appellant.
Again, the court said, in the suit against the treasurer and the school directors, that the school directors were not liable, hut continued:
“A different rule of law, however, applied to the treasurer. He is only authorized to pay out money on the orders or warrants of the hoard of directors of a school district properly draivn. The law requires that the directors shall draw orders on the treasurer' for the payment of wages due teachers, or for any lawful purpose, and they shall state iii every such order the services or consideration for which the order is drawn, and that, when the warrants are properly drawn, he shall honor the same out of the funds in his hands for that purpose belonging to the district. When a warrant is therefore presented to the treasurer for payment for an unauthorized purpose, the treasurer pays the same at his peril, and is personally and individually liable to the district for the moneys unlawfully expended. The judgment of the trial court dismissing appellant’s complaint against the appellees, directors, is therefore affirmed. The judgment dismissing the complaint against the treasurer is erroneous and is therefore reversed, and the cause as to him is remanded for a new trial.” Hendrix v. Morris, 134 Ark. 358, 203 S. W. 1008.
In cases against those officers who are required by law to make settlement with the county court, as treas urer and collector are required to do, a suit cannot be maintained against them in tbe circuit court as required by law, but, in a case ag'ainst such officer for a wrongful act, like tbe misappropriation or conversion of school funds, suit may be brought in the circuit court, whether the officers’ accounts have been passed on by the county court or not. It. is not a question of his settlements or his accounts, but a question of wrongful conduct resulting in damage to the school district. Certainly there could be no reason to have the county court pass on whether or not a treasurer had wrongfully paid a warrant. As to whether the treasurer did or did not wrongfully pay these warrants or any of them, is a question of fact, and may be determined in a trial in the circuit court without any. regard to what the officer may have done in the county court. It might happen that an officer would make a settlement, and that the school directors or other persons whose money had been converted or misappropriated would know nothing, about the settlement, and might.not learn about it until the two years had expired, but, independent of that, we think there is no reason why the county court should act in a case like this before suit is begun in the circuit court, and that such action by the county court is not necessary to give the. circuit court jurisdiction.
The case is therefore reversed, and remanded for new trial.
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Hart, J.,
(after stating the facts). According to the testimony of appellant, he entered into the possession of the land involved in this suit in the early part of 1915, and held the actual and exclusive possession of it against all the world except the United States for more than seven years before this suit was brought, and had the possession of the same when the suit was commenced on the 20th day of May, 1924.
In a case-note to 20 Ann. Cas. 538, and in 31 L. R. A. (N. S.) 153, it is said that the general rule is that one claiming title by adverse possession in subordination only to the United States may assert such possession as against another claimant. It is said that the decisions rest upon the theory that it is not absolutely necessary that adverse possession should be held against the whole world in order to enable one claiming by it to assert it against another claimant; and further, that, as the statute of limitations can never run against the United States, unless by express statute, a holding in subordination to the United States, but adversely to everybody else, cannot be deemed to be inconsistent. The soundness of the rule has been recognized by the Supreme Court of the United States. Iowa R. Land Co. v. Blumer, 206 U. S. 482. Other cases on both sides of the question from the courts of last resort of various States may be found cited in the case-notes just referred to.
In Clemens v. Runckel, 34 Mo. 41, 84 Am. Dec. 69, it was held that a party’s possession is adverse to the true owner when he enters and holds actual, open, uninterrupted and notorious possession of land to which he expects to acquire title by preemption whenever the land should be brought into market. It was said that such possession will ripen into an absolute title at the expiration of the time provided by the statute of limitations.
In Hayes v. Martin, 45 Cal. 559, it was held that it was not requisite that a party who relies upon the statute of limitations should show that he claims title in hostility to the United States. It was said that he might admit title in the United States, either with or without a claim on his part of the right to acquire the title from the United States, and that it was sufficient if he had such possession as is required by the statute and claims in hostility to the title which the plaintiff might establish in the action.
It has been held by this court that the possession of land by one who recognizes the title of another thereto may nevertheless constitute an adverse holding as against the true owner. Shipwith v. Martin, 50 Ark. 141, 6 S. W. 514.
In discussing the question the court said: “It is urged that a defendant, claiming* by possession as against the plaintiff in ejectment, must not only show that he has held adversely to the plaintiff during the period of limitation, but that he must go further and show a possession ‘exclusive of the title of any other person.’ The statement of this proposition arouses our skepticism at once, and, when we look into the numerous authorities cited to support it, we are not surprised to find that the cases do not justify the argument on this point. It is most broadly asserted in New Orleans & S. R. v. Jones, 68 Ala. 48, but the proper qualification is made in the later case of Dothard v. Duncan, 75 Ala. 482. So, if it were conceded, as appellants contend, that the possession of the county was not adverse to the original proprietors, it would not follow that the appellee could not claim the statute bar as against Beebe and his heirs.”
The reason is that the adverse holding need not be against the whole world to put the statute of limitation in motion, but the term is used to impart notice.
But it is insisted that, even under this rule, the circuit court did not err in directing a verdict in support of appellee, for the reason that appellant would be precluded from claiming title by adverse possession by reason of the suit of the United States against the Holly-Matthews Manufacturing Company to assert title to said’ land. The record shows that appellant acquired possession of the land before he applied to the United States for a homestead right therein. It is true that evidence was introduced tending to show that he afterwards acquired knowledge of the pendency of the suit in the Arkansas Federal court, but appellant was not a party to that suit and was not bound by the proceedings thereunder. His rights could not be affected by a suit to which he was not made a party. If he had acquired possession of the land from the United States during the pendency of the suit, he would be affected by the disposition of it; but, having acquired possession before he applied to the United States for a preemption right, he was not in any wise affected by the holding in that case.
The result of our views is that the circuit court erred in directing a verdiet for the appellant and for that error the judgment must be reversed, and the cause remanded for a new trial.
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Hart, J.,
(after stating the facts). The first assignment of error urged for reversal of the judgment is that the court-erred in admitting certain letters, purporting to have been written by Eugene Davis, to be read to the .jury. These letters were written in the fall of 1923, and the lease contract was executed in the fall of 1921. In both of the letters Davis recognized that his wife was liable on the rent notes. The letters were admissible as a declaration against the interest of Mrs. Davis. Jefferson v. Souter, 150 Ark. 55, 233 S. W. 804. They were also admissible as tending to show that Mrs. Davis recognized her liability under the contract after she had been informed of the alleged fraudulent misrepresentation in procuring it. It will be remembered that the contract was executed in the fall of 1921, and these letters were written in the fall of 1923, long after the alleged fraudulent misrepresentation had been made and long-after the agent of Mrs. Davis claims that he had knowledge of it. Hightower v. Sholes, 128 Ark. 88, 193 S. W. 257.
The letters were authenticated by proving the genuineness of the signature of the writer, and this was suf ficient to warrant their reception in evidence. Barham v. Bank of Delight, 94 Ark. 158, 126 S. W. 394. Joe Young testified that he was familiar with the signature of Eugene Davis, and that the signature to the letters introduced in evidence was the genuine signature of Eugene Davis. Therefore the letters were sufficiently identified to warrant their admission in evidence. Taylor v. State, 113 Ark. 520, 169 S. W. 341.
The next assignment of error is that the court erred in refusing to allow the defendant to prove by Joe Young that Davis had told him, over the telephone, after the contract had been executed, that Falls had said there was no Johnson grass on the land. The court was correct in refusing to allow this evidence to go to the jury. It was nothing more than a self-serving declaration, and was therefore inadmissible. Brotherhood of Railroad Trainmen v. Fountaine, 155 Ark. 578, 245 S. W. 17; Black v. Hogsett, 145 Ark. 178, 224 S. W. 439; and Arkmo Lumber Co. v. Cantrell, 159 Ark. 445, 252 S. W. 901.
The next assignment of error is that the evidence is not legally sufficient to warrant the verdict. The respective theories with regard to the fraudulent representation, that the agent of Mrs. Fall represented that the land was not infested with Johnson grass, and thereby secured the execution of the lease contract, and the theory of the plaintiff, that no such representation was made, were fully and fairly presented to the jury in accordance with the principles of law decided in Neely v. Rembert, 71 Ark. 91, 71 S. W. 259. The testimony of the parties on this phase of the case was in direct conflict, and, under our familiar rule of practice, upon appeal we must accept the verdict of the jury where there is any testimony of a substantial character to support it. St. L. Sw. Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S. W. 768. The jury was the judge of the credibility of the witnesses, and, by accepting the testimony of A. B. Falls, found that he, as agent for his mother, did not represent that the farm in question was not infested with Johnson grass in order to induce the defendant to sign the lease contract. On the contrary, according to Ms testimony, the agent of the defendant had been upon the land and was fully aware of the extent to which it was covered with Johnson grass.
We find no reversible error in the record, and the judgment will therefore be affirmed.
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Humphreys, J.
This suit was originally brought by one of the appellants, C. C. Kavanaugh, against appellee, S. R. Morgan, and others, to recover possession of a certain lot in the city.of El Dorado, Arkansas, upon the alleged ground that he was the owner thereof by deed of conveyance from the Central Bank, said bank having purchased same in a decree of foreclosure of a deed of trust executed to it by S. R. Morgan.
- S. R. Morgan filed an answer, denying the material allegations in the complaint, and a cross-complaint alleging that said lot and the other property covered- by the deed of trust was foreclosed under an agreement that all of the property described in the deed of trust should be purchased at the foreclosure sale by said bank and held in trust for him until he could dispose of enough thereof at private sale to liquidate the large indebtedness he owed the bank, at which time the remainder should be conveyed to him. He prayed that the cause be transferred to equity in order that he might have an accounting from the bank, offering to pay any amount he might owe it, and requesting that the lot in question and the other unsold real estate described in the deed of trust and commissioner’s deed under the foreclosure decree be returned to him.
The cause was transferred to the first division of the chancery court in said county, where it was tried upon the pleadings and testimony adduced by the respective parties. The court found the issues in favor of appellees, and rendered a decree divesting the title to the unsold real estate out of appellants and vesting same in S. R. Morgan, upon the payment of $11,135.75 to said bank by him within.ten days; from which findings and decree an appeal has been duly prosecuted to this court for trial de novo.
The record reflects, according to the undisputed testimony, that, prior to the year 1921, S. R. Morgan, who was doing business with the Central Bank, drew drafts in large sums upon parties who did not honor them when presented for payment, and deposited the proceeds to his account in said bank. Before the drafts were dishonored and returned, he had checked out the money. These returned drafts swelled his indebtedness to the bank to the sum of $80,000, and, as he was unable to redeem them, the stockholders of the bank were compelled to double their stock in order to sustain the credit and solvency of said bank. Although a part of his indebtedness to the bank was secured by collateral, a large part of it was unsecured'. • In order to secure same, upon the urgent solicitation of C. C. Kavanaugh, the president of said bank, S. R. Morgan executed it a deed of trust upon his real estate in El Dorado and Union County. The indebtedness was reduced, by payments and collections on collateral from time to time, to about $53,000, in May, 1921, when foreclosure proceedings upon the deed of trust were instituted in the chancery court of Union County. A default judgment was rendered on August 4, 1921, for $61,537.77 in favor of the bank against S. R. Morgan, and the real estate described in the deed of trust was ordered sold to satisfy said indebtedness. The commissioner appointed to execute the decree offered the real estate, after due notice, for sale at public auction on September 14, 1921, and the bank became the purchaser thereof for the sum of $10,000.
The sale was confirmed on December 5, 1921. After the sale the indebtedness involved in the foreclosure suit was carried on the bank books as accounts receivable, and the real estate was carried on the books until October, 1922, on the collection account instead of the real estate account. At that time, through the advice of attorneys, the real estate account of the bank was debited with $10,000, the bid for the real estate at the foreclosure sale.
C. C. Kavanaugh certified on December 31, 1921, immediately after the confirmation of the sale, that the bank owned $2,080.20 in real estate; and again, on March 10,1922, he certified that it owned $4,142.76 in real estate ; and again, on June 30, 1922, he certified that it owned $4,338.85 in real estate. In October, 1922, he debited the real estate account with $10,000, bid for the property at foreclosure sale, and on November 13, 1922, the books showed that the bank owned $14,268.05 in real estate. Mr. Kavanaugh gave two explanations as to why he carried the indebtedness of S. R. Morgan in the loans, discounts and collection account after the confirmation of the foreclosure sale, the first being that he did not know that it made any difference, until his attorneys informed him that the amount paid for the real estate at the foreclosure sale should be debited to the real estate account; and the second was that he did it as a matter of convenience, in order to make the accountings to the makers of the collateral notes, to Morgan, and to keep itself and the Bank Commissioner informed. Mr. Kavanaugh further explained that the Bank Commissioner understood how the transaction was handled from the beginning, and that he did not deceive, or intend to deceive, him by carrying the purchase price of the real estate at the foreclosure sale .in the collection account and by not debiting the amount to the real estate account until October, 1922. In this connection he stated that other foreclosure sales had been handled in this way and carried upon their books in the same manner.
After the confirmation of the foreclosure sale the bank paid' all of the taxes on the real estate and all expense items pertaining to the real estate, charging same to its own expense account, and not to S. R. Morgan.
The lands in Union County embraced in the sale were wild and unimproved. Prior to the foreclosure sale, S. R. Morgan had leased one piece of the said property embraced in the mortgage to the Ark-Mo Lumber Company and had collected the rent for the term in advance. The term ended in 1923, at which ■ time the bank leased the property to the Ark-Mo Lumber Company and collected the rent thereon. Another piece of said property was held by Downtain, who had purchased same and obtained a warranty deed from S. R. Morgan after he had executed the mortgage to the bank. M. B. Morgan erected three small houses upon another piece of the prop-' erty, after the foreclosure suit, and, when he refused to account for the rents, this suit in ejectment was brought against the Morgans. There is some dispute as to who had possession of the other city property. Kavanaugh testified'that he collected rents on one of the lots until the tenants moved out. M. B. Morgan testified that, after the date of the sale, he continued to look after all of the property, either for the bank or S. R. Morgan, or whoever owned it.
C. C. Kavanaugh wrote to eight different parties, prior to the date of the foreclosure sale, giving notice that the lands embraced in its mortgage, describing them, would be publicly sold on September 14, 1921, in which it was stated that the bank was interested in seeing that the lands should sell for a good price. One of the letters was addressed to Hon. Tom Gaughan of Camden. Gaughan mailed the letter to the Standard Oil Company, and received a reply to the effect that it had checked the lands over and found nothing of interest to it.
On October 30,1922, Kavanaugh wrote S. R. Morgan by registered letter as follows:
“S. R. Morgan,
Moore & Turner Building,
Little Rock, Arkansas.
“Dear sir: Referring to your request to Mr. Simpson for an accurate statement of your account, beg to advise that the position which this bank takes, and has always taken, and has repeatedly explained to you, is that it is not seeking any profits out of foreclosure of real estate or collateral sales, but that it would be willing’ to resell to you any real estate which it has foreclosed and bought in, and surrender to you any collateral which it still holds in pledge, for the consideration of- enough in cash to reimburse it for your present indebtedness and for such sums as it has paid out in foreclosure purchases, plus all expenses that it may have been put to. The bank does not hold the real estate which it bought in at foreclosure in trust for you for security for any indebtedness which you may owe it. For instance, it foreclosed its mortgage on El Dorado and Union County property and bought it in at the sale by the commissioner at the consideration of $10,000. This sale was after-wards confirmed, and the report of the said commissioner to the court shows that the Central Bank credited its judgment to the amount of $10,000, and this credit is extended to you on its books. There would have been no object in foreclosing the mortgage and selling the property if it had been the intention of the bank to hold merely as security. With reference to the items of expense, such as attorney’s fees, abstract fees, railroad expenses, taxes, etc., which we have paid out on the El Dorádo and Union County property purchased at the foreclosure sale, beg to advise that these items were charged to our own expense account at the time the items were paid, and were not charged to your personal account. In writing you a memorandum, these items were included for the purpose of advising you for how much we would he willing to sell to you the El Dorado and Union County real estate. ¡We are offering the property we bought at foreclosure sale. If you wish to buy it, you can negotiate as any other person may do.”
S. E. Morgan did not answer this letter.
In April, 1921, before the foreclosure proceeding was commenced, C. C. Kavanaugh wrote S. E. Morgan the following letter:
“For the future protection of yourself and the bank, we hope you will use your influence with the clerk at El Dorado to prevent unnecessary publicity of the litigation. Judge Hendricks has the papers prepared, and if you think it will accomplish any good in securing this matter out of the newspapers, I would accompany Judge Hendricks to El Dorado. As we see it, neither party would be greatly benefited by any undue publicity of litigation.”
Mr. Kavanaugh explained that his reason for writing this letter was to avoid any damage which might result to the bank if publicity.was given to the institution of sucia a large foreclosure proceeding. This concludes the statement' of material facts revealed by the undisputed testimony.
The record reflects the following' material conflicting testimony:
S. E. Morgaaa testified, in substaaace, that he and Kavanaugh agreed that the bank should institute foreclosure proceedings on the deed of trust against Morgan in the circuit court of Union Couaaty, take judgment against him for this debt, foreclose its mortgage, buy the property in at the sale for $10,000, thus freeing it from junior judgment liens, then to resell it at a private sale, as opportunity presented itself, apply the proceeds, first, to the payment of its indebtedness to it, and return the residue to him. He also testified that, iaa order to effectually carry out the plan, he agreed with Kavanaaagh that he and his friends would not bid at the sale themselves, but would discourage competitive bidding, thus permitting Kavanaugh to bid the property in for the sum of $10,000.
Five other witnesses testified that Kavanaugh had told each of them that he bought the property at the foreclosure sale, in trust for S. R. Morgan.
C. C. Kavanaugh testified that the bank never authorized him to enter into an agreement with S. R. Morgan to foreclose its deed of trust and bid the property in and hold same in trust for Morgan; that he did not enter into such an agreement with him; that the foreclosure of the deed of trust was a bona fide transaction, and that he bought the property at the sale for the bank, and not in trust for Morgan; that he never told any one, either before or after the foreclosure sale, that he had bought the property in for Morgan and was holding same in trust for him; that, in order to get bidders and make the property bring as much as possible, he wrote eight different parties about the sale, calling their attention to the date of the sale, in which he told them that the bank was interested in the property selling for a good price.
Testimony was introduced by appellees tending to show that the real estate was worth from thirty to fifty thousand dollars at the time of the foreclosure sale. Kavanaugh testified that he bid as much as the property was worth at forced sale, in view of the fact that some of it was in litigation, some had been leased, and that the title had failed to several hundred acres.
Appellant contends for the reversal of the decree because the evidence is not full, clear and convincing enough to have warranted the trial court in decreeing a trust ex maleficio. The requirements of the rule in such cases announced in Tiller v. Henry, 75 Ark. 446, 88 S. W. 573, and recently approved in Eason v. Wheeler, 167 Ark. 320, 268 S. W. 29, are as follows:
“ Constructive trusts may be proved by parol, but parol evidence is received with great caution, and the courts uniformly inquire the evidence to establish such trusts to be clear and satisfactory. Sometimes it is expressed that the ‘evidence offered for this purpose must be of so positive a character as to leave no doubt of the fact’, and sometimes it is expressed as requiring the evidence to be ‘full, clear and convincing,’ and sometimes expressed as requiring, it ‘to be clearly established. ’ * * * Titles to real estate cannot be overturned by a bare preponderance of oral testimony seeking to establish a trust in opposition to written instruments. The conservatism.of the courts has prevented the tenure of realty being based on such shifting sands.”
The inherent probabilities in the instant case are that C. C. Kavanaugh did not make an agreement'with S. R. Morgan to buy the property in at the foreclosure sale and hold it for him as trustee. The bank owned the deed of trust, and it had not authorized its president to make such an agreement. Certainly the president of a bank would not convert a deed of trust, securing a large indebtedness, into a complicated trust to run for an indefinite period, contingent upon being able to sell the property at private sale, without first consulting the directors and obtaining permission to make such an agreement. The transaction would have been one out of the ordinary course of business, and could not .have redounded to the benefit of the bank.
A first mortgage was as good, or better, than an oral trust. Again, the plan was designed to strip the land of junior judgment liens, sell same, and, after paying the indebtedness to the bank, to pay the residue to S. R. Morgan. It is not probable that a bank in good standing, or its president, would have entered into an agreement of that kind. The unreasonableness of such a plan having been adopted by the parties is augmented by the fact that the bank paid the taxes upon the property for several years after buying it at the foreclosure sale, as well as the expenses incident to handling the property. Another strong circumstance tending to show that no such agreement was entered into, is that, according to the plan-of Morgan, competitive bids at the sale were to be discouraged. The letters written by Kavanaugh and mailed to prospective bidders, calling- tbeir attention to the sale, are in open conflict with Morgan’s plan. Appellees contend that the letters were inadmissible, but we think that they were admissible as circumstances tending to show what Kavanaugh’s intention was when he purchased the land at the sale. They clearly indicate that no agreement had been entered into by him to throttle competitive bidding and purchase the property for another. Declarations of this' kind showing intention are admissible. Wigmore on Evidence, 2 ed., vol. 3, page 822.
Another strong circumstance tending to sustain Kavanaugh’s version of the transaction is that Morgan failed to answer the letter Kavanaugh wrote and registered to him, in which he explained that he had not bought the property in trust for him, and in which he reiterated the terms upon which he .(Morgan) might buy the property.
The first letter written by Mr. Kavanaugh to Mr. ■Morgan, and the manner in which the account was carried on the bank books after the confirmation of the foreclosure sale, are circumstances tending to support Mr. Morgan in his statement that there was an oral trust, but the explanation of the letter and the reason assigned for carrying the accounts as they were greatly minimize the force of those circumstances as corroborative. evidence. The explanations are reasonable.
It is difficult from the testimony to determine definitely who had possession of the city property after the foreclosure sale was confirmed. M. B. Morgan testified that, after the sale, he continued to look after all of the property for the bank, or S. R. Morgan, or whoever owned it. He seemed to be in doubt whether he was acting in the management of the property for his brother, S. R. Morgan, or the bank. He tried to buy the property upon which he built three houses, from the Central Bank, after the houses were built. Under this condition of affairs, this piece of evidence is worth little as a circumstance tending to show whether or not there was an oral trust.'
The direct testimony upon whether there was an oral trust is conflicting.
In view of the open conflict in the testimony, we are-of the opinion that appellees have failed to establish a trust ex maleficio, under the rule'announced above. The testimony is not full, clear and convincing that the oral trust was agreed upon.
On account of the error indicated the decree is reversed, and the cause is remanded with directions to dismiss the crossbill of appellees for want of equity, and to decree the possession of the property to appellants.
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Smith, J.
Appellant brought this suit to quiet and confirm his title to a forty-acre tract of land in Union County. He alleged that his grandfather, Wade Sims, bought the land in 1902, and in 1910 conveyed it to his son Julius, who was appellant’s father. The defendants in the case are Eliza Sims, the widow of Wade Sims, who was also known as Wade Fisher, and Martha Arnold, who was the only child of Wade, except Julius. Wade Sims died in 1917, and Julius died in 1914. In their answer defendants denied that appellant was the son of Julius, and also denied that Wade Sims had ever executed a deed to Julius. After hearing the testimony of a number of witnesses, the court dismissed the complaint as being without equity, and this appeal is from that decree.
It does not appear whether the case was dismissed because the heirship of appellant was not proved, or because the execution and .delivery of a deed to Julius Sims was not established. It was, of course, essential for appellant to prove both facts, and the failure to prove either would defeat his action.
Appellant was required to show only by a preponderance of the evidence that he was the son of Julius, and we think the testimony met that burden. Nancy Sims was appellant’s mother, and she was also the mother of several other children when appellant was born, and it is claimed that these children were also illegitimate.- Nancy Sims testified, however, that they were children by a former marriage. She also testified that appellant was born August 12, 1912, and that she and Julius were married September 12,1912, and the date of her marriage was clearly established by the date of her marriage license, which was offered in evidence.
The testimony is conflicting as to appellant’s age at the time his mother and Julius were married, and he may have been born earlier than August 12, 1912, but it appears that Nancy had lived with Julius as his cook and housekeeper for about two years before appellant was born, and it also appears that Julius recognized appellant as his son. This being true, appellant was legitimatized.
Section 3474, C. & M. Digest, reads as follows: “If a man have by a woman a child or children, and afterward shall intermarry with her, and shall recognize such children to be his, they shall be deemed and considered as legitimate. ’ ’
We are of the opinion, however, that the relief prayed was properly denied, for the reason that the execution of the deed was not established.
Nancy Sims testified that Wade Sims agreed to execute a deed to Julius as an inducement for Julius to live on the'farm and to take eare of it and his father, and that, pursuant to this agreement; Julius built a log cabin on the farm, and moved into it in 1910, and that the deed was executed and delivered to Julius the same year; that she did not have the deed recorded, but placed it in her dresser drawer, where it remained until the night Julius died, when some one took it, and that she had not seen it since. She further testified that Eliza Sims admitted having taken the deed out of the drawer, and that Eliza told her the rats destroyed the deed.
The taxes were paid >by Julius in his own name for the years 1910, 1911 and 1912, but the land continued to be assessed in the name of Wade Sims, and this assessment was never changed on the taxbooks. Julius died in March, 1914, which was before the close of the tax-paying time for the year 1913, and the taxes for that year were paid by Wade Sims in his own name.
Wade Sims became insane, and was carried to the State Hospital, where he remained until his death in 1917, but his widow, Eliza Sims, continued to reside on the land, and now occupies it as her homestead.
Nancy Sims left the land in 1914, and has not át any time since resided on it, and does not appear to have claimed at any time that the land belonged to her son (appellant) until shortly prior to the institution of this suit.
A number of witnesses testified in appellant’s behalf, and several of them gave testimony strongly corroborative of the testimony of Nancy Sims. Among these was W. D. Webb, a white man, who brought this suit as next friend for appellant, who is a colored boy. We'bb testified that he went with Nancy to the home of Eliza to inquire about the deed, and Eliza admitted its execution, but stated that the rats had eaten it.
B. Green, who was also a white man, testified that he conducted a small’general store, and that Julius had given him a mortgage, which was never recorded, on the land to secure witness in making advances of supplies, and that, before taking this mortgage, Julius had shown him a deed, which witness did not read, which Julius stated was a deed from his father to him, and that the description of the land in the mortgage was taken from a tax receipt which Julius produced.
C. S. Cranston, who is also a white man, testified that he lived on an adjoining tract of land, and that Julius once showed him a deed, and asked the loan of $18 to pay the taxes on the land, but witness did not make the loan.
E. B. Eipley, another white witness, testified that he lived on adjoining land, and that "Wade Sims had-told him he had deeded the land to his son Julius.
Harb Burton, a colored man, testified that he was at the home of Julius about a week before Julius died, and that Julius told Nancy to look in the dresser drawer and hand him his deed. Nancy obeyed, and Julius looked over the deed, and, after doing so, said: “Well, I am going to die, but I have forty acres of land. I have paid for it, and it is yours.”
It was very clearly shown that Julius never owned any other land.
There was other testimony more or less corroborative of the testimony recited.
Nancy Sims also testified that the deed was signed by Wade Sims and Eliza Sims and a Mr. Brown, who was a justice of the peace. Mr. Brown was-dead at the time of the trial.
On behalf of defendants, Bob Nelson, a colored man, testified that he had known Wade Sims for many years; that they were neighbors and close friends, and that Wade consulted him about his business affairs. He testified that Julius worked on the railroad, and was taken sick and came home to die, and that Wade Sims built the little log house in which Julius resided and later died. That witness helped Wade Sims to get out the boards to cover the house, and bought the nails and the lumber for the floor, but never heard Wade Sims at any time refer to a deed. Julius had nothing to do with building the bouse. Julius did not make a crop in the year he died, but worked on the railroad when he worked at all.
The only witness who claimed to have read any part of the deed was Nancy Sims, and she admitted that she had not read all the deed, and did not know what land it described, nor what consideration was recited, but she testified that the deed was signed by Wade and Eliza Sims and by Mr. Brown.
Eliza Sims testified that she had never heard of this deed until a short time before this suit was commenced, and denied that she had ever signed a deed.
Without further recitation of the testimon3q we announce our conclusion to be that it does not measure up to the standard required by the law to establish a lost deed. Concerning testimony of this character it was said in the case of Wasson v. Walker, 158 Ark. 4, 249 S. W. 29:
“The alleged contract relates to and affects the title to land, it constitutes one of the muniments of title in the 'chain, and a mere preponderance of the testimony is not sufficient to establish it. Its execution and contents must be established by evidence that is clear and decisive (citing cases).”
In the more recent case of Erwin v. Kerrin, 169 Ark. 183, 274 S. W. 2, it is said:
“The rule is well established in this State, as well as b}^ the authorities generally, that the burden is upon one who claims title under the alleged lost instrument to establish the. execution, contents, and loss of such instrument by the clearest, most conclusive, and satisfactory proof (citing cases).”
As the testimony fails to measure up to this standard, the relief prayed was properly denied, and the decree will therefore be affirmed.
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Kirby, J.,
(after stating the facts). Appellant urges that the finding of the court below is not supported by the evidence, and that there was a failure of consideration, in any event, of the notes executed by him in payment for the tile floor in appellee’s own building, and from which he received no benefit whatever.
The testimony is in conflict as to the date the repairs on the building were completed, that of the lessor tending to show that it was ready for occupancy on June 18,1923, while some of the other testimony indicated it was not finished until in August. It is not disputed, however, that the parties made an adjustment on July 1, 1923, of the amount of the rent due under the lease contract, allowing the lessee the credits he was entitled to for being deprived of the use of the building on account of the fire during the period of repair, and agreement as to the amount of the cost of the tile floor. The lessee, Adkins, at that time executed the notes aggregating the amount of the floor cost, payable in installments of $22.52 per month, all being due at once upon failure to pay either of them, the first falling due August 1,1923.
Appellant knew the condition of the building and the status of the repairs at the time, and made no objection to the work nor claim that it had not been completed in time, or was not ready for occupancy, his first claim of the breach of contract being made by letter on August 1, 1923.
The supplemental agreement giving appellant a reasonable time to repair and restore the premises, expressing that it was expected to be done within ninety days from March 8, 1923, did not bind appellee conclusively to complete it by the expiration of that time, being an esti mate rather of the time that would be required, and no objection was made, at the time of the agreement of settlement, of the amount of the rent due and the cost of the tile floor on account of it not being sooner completed, and appellant also afterwards put a card in the window advertising the store-room for rent, and directing persons to apply to him therefor.
If the condition of the repairs and the failure to make same within the time it was thought they could be completed, or the putting in of an elevator shaft additional, that appellant contends he did not consent to, had warranted appellant in refusing further to perform his contract on account of a breach thereof by the appellee, the lessor, he waived such right by the agreement of settlement abating or allowing him credit for the amount of the rent accruing during the period of repairs, and the execution of the notes in payment for the tile floor. Neither can we say that the finding of the chancellor in appellee’s favor is clearly against the preponderance of the testimony.
By the terms of the lease a lien was created upon certain personal property, and there was no error in the decree holding that it was bound to the payment of the rent found to be due to the time the building was rented to another tenant, after appellant’s refusal to occupy it.
The facts of this case do not bring it within the rule announced in Berman v. Shelby, 93 Ark. 472, 125 S. W. 124. We find no error in the decree, and it is accordingly affirmed.
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Hart,. J.,
(after stating the facts). The validity of § 7956 of Crawford & Moses’ Digest is the only_question raised on appeal.
It is conceded that the constitutionality of the' act has been sustained in the following cases decided by the Supreme Court of this State and of the United States: Tilson v. Gatling, 60 Ark. 114, 29 S. W. 35; Wyatt v. Wallace, 67 Ark. 576, 55 S. W. 1105; Wood v. Carl, 75 Ark. 328, 87 S. W. 621, and 203 U. S. 358; Ozan Lumber Co. v. Union County National Bank, 207 U. S. 251; Columbia County Bank v. Emerson, 86 Ark. 155, 110 S. W. 214; Ensign v. Coffelt, 102 Ark. 568, 145 S. W. 231; Jonesboro Trust Co. v. Nutt, 118 Ark. 368, 176 S. W. 322; and Alley v. Riley, 203 U. S. 347.
It is also conceded that, in the case last cited and in Patterson v. Kentucky, 97 U. S. 501, it was expressly decided that art. 1,'§ 8, of the Constitution of the United States, giving to Congress the power to promote the progress of science and-useful arts, does not deprive the States of the right, under their police power, to regulate the form and prescribe the effect of negotiable instruments given for patented articles. The decision in the case of Woods v. Carl, 203 U. S. 358, was also based upon the same construction of this provision of our Constitution by the Supreme Court of the United States. In Columbia County Bank v. Emerson, 86 Ark. 155, 110 S. W. 214, it was held that the exception contained in the act, applicable to merchants and dealers who sell patented things in the usual course of business, contained in § 7959, does not render the act invalid as being an unlawful discrimination; and the ease of Ozan Lumber Co. v. Union County National Bank, 207 U. S. 251, was cited in support of the decision.
Counsel for the plaintiff, however, rely for reversal of the judgment- upon art. 1, § 8, of the Constitution of the United States, which provides that Congress shall have power to regulate commerce among the several States, and they contend that this court and the Supreme Court of the XJnited States have left open this question because it was unnecessary to a decision of the contentions made in any of the cases heretofore decided.
We do not agree with counsel in this contention. . In the ease of Tilson v. Gatling, 60 Ark. 114, 29 S. W. 35, the court used this language: ‘ ‘ That such an act does not violate § 8, art. 1, of the. Constitution of the XJnited States, giving to Congress the power ‘to regulate commerce with foreign nations, and among the several States,’ etc., and to ‘promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries,’ we think is settled by the better reason, and the weight of authority.”
In Wyatt v. Wallace, 67 Ark. 575, 55 S. W. 1105, the court had under consideration the act in question, and expressly held that a note given by a citizen of this State for an interest in a patent right, which does not show upon its face that it was given therefor, is void. It is true that the case contains no discussion of whether the act in question is in contravention of the interstate commerce clause of the United States Constitution just referred to, but it is of some importance that the same judge wrote the decision in this case as delivered the opinion in Tilson v. Gatling, supra.
Again, in the case of Woods v. Carl, 75 Ark. 328, 87 S. W. 621, the court had the statute in question under consideration, and referred to the case of Tilson v. Gatling, 60 Ark. 114, 29 S. W. 35, as holding that the statute did not invade the power of Congress to promote the progress of science and useful arts by securing to inventors the exclusive right to their discoveries.
Continuing, the court said: “It is difficult to perceive any distinction between the validity of the two statutes in that regard; for, if the Legislature had the rightful power to pass one of the statutes, it had also the power to pass the other. If the jurisdiction of Congress over the subject of patents and patent rights is so extensive as to exclude the power of a State to declare void, unless made in certain form, written obligations given in consideration' of sales of patent rights, or patented articles, then it also follows that the State is powerless to alter the established rules of the law merchant so as to permit defenses, not applicable to other negotiable paper, to be made to such paper given in consideration of sales of patent rights or patented articles.”
Following this discussion, the court said: “In Wyatt v. Wallace, 67 Ark. 575, the, precise question was presented there as presented here, and the court held that there could be no recovery upon the note sued on.”
This court is committed to the doctrine that the main purpose of the act was to enable the maker of a negotiable instrument, given for patent rights or patented articles, to make the same defense thereto against any holder thereof that could be made against the original holder or party to whom it was given. Roth v. Merchants’ & Planters’ Bank, 70 Ark. 200, 66 S. W. 918; Warmack v. Askew, 97 Ark. 19, 132 S. W. 1013; and Brenard Mfg. Co. v. McRee’s Model Pharmacy, 287 S. W. 187. Hence it is held in these cases that the failure to comply with the statute does not affect the validity of the sale, but renders only the note absolutely void.
It has been held further that, though the note may be void, the vendor may recover whatever may be due him on the contract of sale from the vendee. In the case of Roth v. Merchants’ Planters’ Bank, 70 Ark. 200, 66 S. W. 918, to support the principle of law controlling the decision, the case of Iron Mountain & Helena Railroad v. Stansell, 43 Ark. 275, and other cases of like character, are cited. In the Stansell case it was held that, in an action for money due on a contract, change tickets issued by the defendant in violation of the statute and delivered in payment of the debt, though illegal, may be used as evidence of the amount due on the contract. The court said that they were a written confession that the maker had received the value expressed in them.
In Todd v. Wick Brothers & Co., 36 Ohio St. 370, one of the cases cited with approval in Woods v. Carl, 75 Ark. 320, 875 S. W. 621, it is said:
“The right to regulate the form and prescribe the effect of paper taken in commercial transactions has always been regarded as belonging to the State, and such right has been exercised in -this State during the whole period of its existence.”
Hence it was held that the act under consideration in that case was not in conflict with § 8 of the first article of the Constitution of the United States nor with the act of Congress enacted in pursuance thereof, relating to the granting of letters patent.
It is well settled by the decisions cited above and numerous other cases of like character that a state of law which discriminates against goods outside the State, 'either in respect to the commerce clause or the patent clause contained in § 8, art. 1, of the Constitution of the United States, is unconstitutional. We do not understand, however, that the Supreme Court of the United States has gone to the extent claimed by counsel for plaintiff, or has denied the power of the State to prescribe a form for notes given for patent rights or patented articles where such act does not directly affect interstate commerce.
As we have already seen, the effect of our former decisions is to hold that the State, by the passage of the act under consideration in the case at bar, has gone no further than to prescribe the form of notes given for patent rights and patented articles. The act is general-in its application, and has not in any wise attempted to discriminate against goods manufactured and sold by owners residing in other States to persons in this State. The validity of contracts of sales of such goods has been expressly upheld by this court in sustaining the constitutionality of the statute. Under our decisions, while no recovery can be had upon the note unless it is in the prescribed forms, still the note is capable of being used in evidence in arriving at the terms of the contract.
After all, the practical effect of our former decisions in construing the statute is to limit the right of recovery to the terms of the contract, and to give the purchaser of the patent right or patent article the right to avail himself of any defense he may have to the action. In the absence of such a statute, the purchaser would have that right against the owner of such goods, whether sold to him from within or without the State. So, too, in the absence of such a statute, only an innocent purchaser for value of the note before maturity would be afforded any protection against fraud in the procurement of the note or other infirmities attached to it, such as that the patent was void as not being novel and useful. In short, an innocent purchaser for value, of the note will stand in the shoes of his vendor.
The result of our views in that, we adhere to our former decisions in the interpretation of the statute, and hold that its enactment was a valid exercise of the police power, and that interstate commerce is only incidentally and remotely affected by it. It follows that the judgment will be affirmed.
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Mehaffy, J.
The appellant, David L. Griffin, was convicted of the crime of burglary and grand larceny. He contends that the evidence is not legally sufficient to support the verdict.
The law provides that a conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Crawford & Moses ’ Digest, § 3181.
Joe Mayfield testified that the appellant, two others and himself, participated in the burglary of the bank at Washington, Arkansas, as charged in the indictment; that, prior to the burglary, witness was at Van Burén, Arkansas, where he met the appellant, and that the appellant told him about the bank at Washington and their intention to break into it and get the money, and that the appellant told him the other boys were over in Fort Smith, and asked him to come over to the St. Charles Hotel, room 6. That he went over there, and found the door locked, but afterwards met the appellant. That the date he was at the St. Charles Hotel was ten or twelve days before the crime was committed. That he and appellant met again the next day and discussed the bank robbery, and the appellant caught a train and went to Little Rock. Witness said that he and his companions, other than appellant, were registered at the Como Hotel, in Fort Smith. That appellant caught the train on Friday morning, and that witness and the other parties connected with the robbery went through that evening. There is not a scintilla of evidence that appellant was in Fort Smith or was with Mayfield either at Fort Smith or Yan Burén, except the testimony of the accomplice.
Witness further testified that they left Little Rock at one o’clock and went to Texarkana, and registered at the Courier Hotel; that the appellant was registered at the Benefiel Hotel. He then tells about how the bank was broken into and robbed, and the part that he claims the appellant took in the matter. The proof also showed that the register containing the name, D. L. Griffin, was got from the Benefiel Hotel at Texarkana, and that they secured a letter which appellant had written while he was in the custody of the penitentiary officers at Little Rock, and expert witnesses testified that the signature on the hotel register and the signature to the letter which appellant had written were both, in their opinions, written by the same person, although they admitted there was some difference in the way the name was written. The cashier of the bank also testified that, some months before, a man came to the bank at Washington, asking for help, and he gave him fifty cents or a dollar, and, while he would not say that appellant was the same man, he really believed he was. The State also introduced a witness who testified that he had gone to the St. Charles Hotel at Fort Smith, and that the leaves of the hotel register for the dates which Mayfield said appellant was at the St. Charles Hotel, had been torn out, were missing.
Edwards, one of the parties who, Mayfield testified, assisted in the crime, was convicted, and his conviction was affirmed September 27,1926. It was there contended that there was no corroboration of Mayfield’s testimony, but, in that case, a witness for the State testified that he saw the defendant, Edwards, and Joe Mayfield in Hope on the 15th day of December, 1925, the day before the burglary; that the defendant and Mayfield stayed around the railroad station a good deal that afternoon, and that the witness recognized defendant as one of the parties he had seen in Hope. A deputy • sheriff also testified for the State in the Edwards case, to the effect that he heard Edwards tell his wife to go ahead "and borrow the money and when he got out of there he would rob another bank and they would have plenty of money; that this statement of the defendant to his wife was voluntarily made and was in the presence and hearing of the deputy sheriff. The court in the Edwards case said that the testimony of the deputy sheriff and the constable tended to connect the defendant with the commission of the crime and sufficiently corroborated the testimony of Joe Mayfield. In this case, however, there is no testimony, except the testimony of the accomplice, that appellant was ever seen in the company of any of the persons who committed the robbery, and no testimony that he ever said a word indicating that he had anything to do with the bank robbery or knew anything about it. In other words, there is no testimony corroborating Mayfield’s testimony tending to connect appellant with the commission of the crime.
Since the statute expressly provides that a conviction cannot be had in the case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and there being no such corroborating testimony in this case, it follows that his. conviction was wrong. It is immaterial whether the court and jury believed the accomplice or not. His story may have been such and his manner such that, from his testimony alone, there would be no reasonable doubt about the appellant’s guilt, but, if that were true, under the statute above quoted he could not be convicted without evidence corroborating the accomplice, and, as we have said, there is none in this case.
We also think that the testimony of the sheriff, to the effect that he examined the register of the hotel in Fort Smith and found that the pages for the dates mentioned by Mayfield were missing, was incompetent, as it did not tend in any way to show that Griffin had anything to do with the removal of the pages or the mutilation of the record.
We find no other prejudicial errors in the record, and, for the errors above mentioned, the case- will be reversed, and remanded for new trial.
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Humphreys, J.
This suit was instituted in the chancery court of Sebastian County, Fort Smith District, by appellant against appellees, on the 2d day of April, 1925, to enforce a lien for material and labor in the total sum of $1,216.13 against lots 21 and 22, in block 9, in G-eneral Benjamin Bonneville Addition No. 2 to the city of Fort Smith, Arkansas, It was alleged, in substance, that the materials and labor were furnished by appellant to H. A. Koontz, the owner of the lots, between the dates of October 16,1924, and January 8,1925, the last item being-furnished on the 7th day of January, 1925.
Appellees filed an answer, denying the material allegations in the complaint and pleading an estoppel in pais agaipst appellant; and Ben Fant, a subsequent purchaser, and Samuel Baron, a subsequent mortgagee, pleaded, by way of. further defense, that they were innocent purchasers of the property for value.
The cause was submitted to the court upon the pleadings and testimony, resulting in a dismissal of appellant’s complaint for the want of equity, from which is this appeal.
After a careful reading of the testimony, we are convinced that the weight thereof reflects that the items for material contained in appellant’s account were delivered upon the premises and used in the construction of the house thereon, and that the items of labor on the house embraced in the account were paid for by appellant; also that the last item for material was furnished within ninety days before the institution of this suit. We deem it unnecessary to set out, in substance or detail, the testimony responsive to these issues.
The only three questions of consequence presented for determination on this appeal are:
First. Whether appellant can claim a lien for. material furnished while. holding the legal title to the lots as security for the payment as- a part of the purchase price thereof.
Second. Whether appellant was estopped from asserting a lien upon the property because he had changed the deed from W. E. Lowery and wife by erasing his own name and inserting the name of H. A. Koontz therein as grantee; and,
Third. Whether he can claim a lien for the amount paid by him for labor in the construction of the house. The facts necessary to a determination of these questions are undisputed, and are as follows:
H. A- Koontz desired to purchase the lots described above from W. E. Lowery .and build a house upon them. Lowery asked $115 for the lots, and Koontz had only $50. He applied to appellant for a loan of $65 to pay the balance of the purchase money, and requested him to furnish'material and pay for labor to construct the house. The application and request were granted. Pursuant to agreement, H. A. Koontz paid W. E. Lowery $50 and M. T. Bell paid him $65 for the lots. Koontz executed a note to Bell for $65, and W. E. Lowery and wife executed a deed for the lots to M. T. Bell, to be held as security by him until Koontz paid the note, at which time the deed was to be turned over to Koontz. Koontz took possession of the property and proceeded to build the house, and worked on it one day himself. J. C. Harry did most of the work, and was paid partly by Koontz and partly by Bell. Bell paid him $100 on his labor account. Bell furnished all of the material for the house, the last item being furnished on January 7, 1925. On January 14, 1925, Koontz paid Bell the $65 note, evidencing’ the balance of the purchase money for the lots, and Bell scratched out his name in the deed as grantee and inserted the name of H. A. Koontz, and delivered the deed to him. The deed was dated September 30, 1924, and recorded February 25, 1925. On February 16, 1925, H. A. Koontz and wife conveyed the lots by warranty deed to J. 0. Harry, which was recorded March 14,1925. J. O. Harry had received the materials and used them in building the house, with full knowledge that they had not been paid for by Koontz. On March 16, 1925, J. C. Harry and wife conveyed the lots by warranty deed, for $1 and a loan to J. B. Fant, which was recorded on the day of its execution and delivery. On the same date, March 16, 1925, J. B. Fant executed a note and mortgage on the property to secure same, for $600. The note récited that it was executed for purchase money, whereas the mortgage recited that it was given to secure the loan.
(1). The fact that Bell held the title as security merely for the balance of the purchase money due on the lots did not defeat his statutory lien for materials furnished to build the house. Koontz was the equitable owner and in possession of the lots. The instrument of conveyance was in fact a mortgage, although a deed in form. Bell’s lien for material attached to the estate owned by Koontz in the lots. White v. Chaffin, 32 Ark. 59. Bell’s lien for material could not merge in the legal title held by him to the lots as security merely, when the equitable title to the lots belonged to another.
The appellees, who traced their title back to Koontz, who was not himself an innocent purchaser as against Bell’s lien, could not be innocent purchasers as against the lien, because they acquired their deeds and mortgage after the materials were furnished and within the period Bell was given by the materialman’s lien statute to bring suit to enforce his lien. They bought subject to Bell’s lien for material, because the statute required them to take notice of the existence thereof during the ninety-day period given him after furnishing the last item to file his lien or to bring suit to enforce it. Section 6911 Crawford & Moses’ Digest; Eddy v. Loyd,, 90 Ark. 340, 119 S. W. 264.
(2). None of the appellees tracing their title back to H. A. Koontz were induced to purchase or lend money upon the property on account of Bell scratching out his name as grantee in the deed from "W. E. Lowery and inserting’ H. A. Koontz’s name. None of them had any knowledge that the change had been made when they respectively acquired, sold and incumbered the property. Having no knowledge of the change, they could not have been misled by it to their damage. The rule of an estoppel in pais is as follows: Estoppel in pais is worked by conduct intended and calculated to induce, and in fact inducing, another person to alter his condition so that it would be a fraud on him to allow the other person to .take an inconsistent attitude to his detriment.” Thompson v. Willard, 66 Ark. 347, 50 S. W. 870; Johnson v. Taylor, 140 Ark. 100, 215 S. W. 862; Ferrjuson v. Guydon, 148 Ark. 295, 230 S. W, 260,
(3). Appellees are correct in their contention that Bell is not entitled to a lien for money paid to J. C. Harry on account of labor. J. C. Harry’s lien was not assigned to him. The labor for which Bell paid cannot be treated as the cost of material in place, as was done in the case of constructural iron used in a building in the case of Terry v. Klein, 133 Ark. 366, 201 S. W. 801. Appellant, however, is entitled to a personal judgment against H. A. Koontz for the amount he paid for labor to J. C. Harry at his request.
On account of the errors indicated the decree is reversed, and the cause is remanded with instructions to give appellant a judgment against H. A. Koontz for the entire amount of his claim, with interest, and to enforce the lien against the said property in appellant’s favor for the amount of the claim, after deducting the items of labor therefrom.
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Smith, J.
Upon the former appeal in this case, reported in 168 Ark. 262, it was adjudged that appellant, Sullivan, had been erroneously enjoined from occupying a certain lease. The facts upon which that conclusion was based are stated in the former opinion, and need not be restated here. Appellant has asked a dissolution of the injunction and ah award of damages, but that relief had been denied because, in the opinion of the trial court, appellant’s lease was void. We reversed that finding, and, in doing so, said that, if appellant’s cross-complaint had been an independent action for damages, his remedy was complete at law, and he could not have invoked the jurisdiction of a court of equity, but, as appellee had obtained an injunction which had deprived appellant of substantial rights, the latter was entitled, under the statute, to a restitution of the possession of the lease of which he had been deprived by the injunction and to an assessment of damages sustained by reason thereof. Sections 5822 and 5825, C. &. M. Digest, were cited in support of the law as there stated.
We held that the effect of the dismissal of appellant’s cross-complaint was to dissolve the injunction, and that appellant was entitled to the relief provided under the statute cited, and it was ordered that the decision of the court below be reversed, and the cause remanded with directions to the court to make an order of restitution and to assess the damages in accordance with the statute. That opinion was handed down March 23, 1925. Upon the remand the order of restitution was made at the September, 1925, term of the court, and it was ordered that a jury be selected and impaneled on the 26th day of October, 1925, to assess the damages.
The restitution appears to have been delayed and never made, by reason of an intervention filed by W. H. Kelley, which was later dismissed, so that, tvhen the trial of the question of damages came on to be heard, appellee was still in possession of the land. The lease had therefore practically expired when the cause was heard.
Section 5822, C. & M. Digest, referred to in the former opinion of the court, provides that, upon the dissolution of an injunction, the court may, in its discretion, cause a jury to be impaneled to assess the damages, and this was done. Upon the trial before the jury there was a verdict in appellant’s favor for the sum of one cent, and a judgment accordingly, from which is this appeal.
It may be first said that the verdict of a jury in a chancery case is advisory to, but not binding on, the court.. Hinkle v. Hinkle, 55 Ark. 583, 18 S. W. 1049. But, inasmuch as the decree was rendered in accordance with the verdict of the jury, it must be assumed that the court coincided with and concurred in the finding of the jury, and that the verdict indicates what his own finding would have been, had he passed upon the question originally without the intervention of a jury.
It appears, from the facts stated, that appellant was never at any time in possession of the land leased. He had not expended any money in the cultivation or an attempt to cultivate the land. The measure of damages is therefore the difference between the fair rental value of the demised premises and the rental value named in the lease, and the court so instructed the jury. Reeves v. Romines, 132 Ark. 599, 201 S. W. 822; Morrison v. Weinstein, 151 Ark. 255, 236 S. W. 585.
The question presented on this appeal is therefore one of fact, and we will not review the testimony of the witnesses in detail. . •
The land leased embraced twenty-one acres, and the agreed rental was $10 per acre per annum. The lease covered the years 1923, 1924 and 1925. Seventeen acres of the land were in alfalfa and the remaining four acres in Bermuda grass. The testimony of all the witnesses appears to be that the land in Bermuda grass was worth about $10 per acre per year, which was the agreed rental, so we need not consider it further.
The testimony on appellant’s behalf was to the effect that the alfalfa could have been cut from three to five times, and would have yielded in 1923 as much as sixty tons, which would have been worth from $25 to $30 per ton. Most of the alfalfa land was planted in corn in 1924, and all of it was so planted in 1925. The testimony was in conflict as to what the yield in corn for these two years would have been, but we think the preponderance of the testimony shows a production which would have made the rental value greater than the agreed value.
The testimony on the part of appellee concerning the rental value of the alfalfa land shows its value to be less than that stated by appellant and his witnesses, but we think the testimony in its entirety shows that this alfalfa land was worth substantially more than the agreed price.
In the case of Reeves v. Romines, supra, it was held that “ ‘rental value’ is not the probable profits that might accrue to the tenant, but the value, as ascertained by proof of what the premises would rent for, or by evidence of other facts from which the fair rental value may be determined. ’ ’
The value of the alfalfa was not therefore the measure of the rental value of the land, but the tenant was entitled to cut and appropriate it, and the probable yield of the crop and its value was therefore a proper circumstance to consider in determining what the rental value of the land was, its condition considered, at the time the lease was made. So also was the probable productivity of the land in corn, the crop which was subsequently planted, and, when these elements are all con sidered, we conclude that the lease for the three-year period of its duration was worth $300 more than the agreed price. Had appellant been allowed to occupy the land, as his lease entitled him to, he would have had the right to determine the kind of crops which he would plant and the right to plant the ones which would have been most profitable.
Appellant discusses various items, aggregating $1,650 which he says should be allowed him as damages. Among these are a rake which he bought to rake his alfalfa, and which became worthless to him when he lost the alfalfa field. Other items include a loss on hogs and cattle which he bought to pasture on the land. These items are not recoverable elements of damage, as they are too remote.
We conclude therefore that the judgment should have been rendered in appellant’s favor for a substantial amount, and we have concluded, from a consideration of all the testimony; that three hundred dollars fairly represents the difference between the. actual and the agreed value, and, as we' try the case here de novo, the decree of the court below will be reversed, and a decree entered here in appellant’s favor for that amount.
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Smith, J.
On November 6,1922, the appellant insurance company issued to appellee a fire insurance policy for a three-year period on his farm residence for $700, with additional insurance of $300 on the household furniture, etc. On March 7, 1925, the house was destroyed by fire, but the contents were saved by the caretaker. The house was totally destroyed, and this suit was brought to collect the insurance thereon. The insurance company defended upon the grounds that there had been a change of possession which avoided the policy, and that the insured had not made proof of loss as required by the policy. Liability was denied upon both grounds. The trial resulted in a verdict for the insured for $700, with a penalty of 12 per cent, and an attorney’s fee of $100, and from the judgment therefor is this appeal.
Appellee, the insured, was a married man at the time the policy was issued, and his wife lived with him in the insured property, but she abandoned him. Their separation had been impending for some time, and a brother of appellee had unsuccessfully attempted to effect a reconciliation. As appellee expressed it, he and his wife “divided,” and it appears to have been agreed that he should haul her effects from their residence to the place to which she had decided to remove. Pursuant to this arrangement, appellee’s brother, who was a tenant on the farm where the insured residence was located, moved into the insured property, and appellee’s wife moved out the following day. Appellee testified that his brother moved in in order that he might take care of the property. His brother had been living in another house on the farm, which he vacated, "and was placed, in the insured house as a caretaker, and no increased rent was charged against his brother.
Appellee testified that, immediately after his wife left him, he secured employment to drive a team, and, to enable him to make two trips each day, he stayed in Dardanelle, instead of his own home, but that he left his' personal effects at home and retained a furnished room there, and returned home every Saturday night. Appellee secured a divorce, on some ground not stated, and married again, and, after his second marriage, resided in Dardanelle, but he testified that he did this because it made him more accessible to his work, and that he intended at all times to return to his home — the insured property — when his employment terminated, hut the house burned before that time, and that, even after his second marriage, he only removed from the house a feather-bed and some pillows.
The policy sued on contained the following provision: “If any change takes place in the title, possession or interest of the assured in the above mentioned property, * * * then * * * this policy shall be null and void. ’ ’
It is insisted that there was a violation of this provision, and that the policy was invalidated on that account.
Upon this feature of the case the court charged the jury as follows: “Now, if Rector’s brother went into that property as Rector’s tenant and occupied it as his tenant, the court tells you that the policy is void, because it is in violation of that clause that requires him to maintain his residence and ownership, and the possession would be changed from that of the original owner to that of a tenant. The court tells you further that, if his brother went in there as his agent and maintained his residence in that building as Rector’s agent and not as his tenant, then the policy is not void on that account; * * * if he maintained his possession by either remaining there himself or keeping some one there for him, taking care of his property for him, the court tells you that he did not change his possession. * * *”
It is insisted that this instruction is not only abstract as applied to the facts of this case, but is an incorrect interpretation of the stipulation of the policy quoted above in any case.
We do not think either objection to the instruction is well taken. In addition to the facts stated above, appellee testified that he told Mr. George, the agent who wrote the policy, that he was staying temporarily in Dardanelle, and that his brother was in charge of the insured property for him, and that George told him that this Would not invalidate the policy. George denied having this conversation. Appellee testified that' he had not put his brother in charge for any definite time, and that he retained the right to reenter and take possession at any time, and that it was his intention always to reoccupy the property when his employment terminated. That the house which his brother vacated when he rémoved into the insured property remained vacant, so that his brother could move back into it when told to do so,-and his brother did return to that house when the insured house burned. He-did not charge his brother any rent, and he kept a portion of his effects in the insured property at all times, and had the right to retake possession on demand. Appellee further testified, as stated, that he had advised the agent, George, of his temporary removal from the property, and that George said that this fact would not affect the insurance. If this be true — -and the jury evidently credited the testimony — the jury was warranted in finding that the agent did not regard the circumstance as being a change of possession. The agent made no attempt to -cancel the policy, and, if there was a change of possession, the question might have been raised whether this provision of the policy had been waived; but that issue was not submitted to the jury. The question of fact submitted was whether there had been a change of possession.
We are of the opinion that the testimony warranted the finding that the temporary arrangement recited did not constitute a change of possession. Not only did the right of possession remain in appellee, but he left a portion of his household goods in the house in charge of a caretaker.
In the case of Planters’ Mutual Ins. Assn. v. D.ewberry, 69 Ark. 295, 62 S. W. 1047, 86 Am. St. 195, the policy sued on contained the stipulation that if “ * * * any change takes place in the title, occupation or possession * * *” of the insured property, the policy should be void. The owner of the property leased it to one Haile for a year, and gave Haile possession thereof, and moved away from the premises, which remained in the exclusive possession of Haile until the house was destroyed by fire. The court held that there had been a change of possession and occupancy and that the policy had been thereby invalidated.
It may be said that the policy there sued on contained a stipulation against a change either of occupancy or possession, and that there was a change both of occupancy and possession, as the owner relinquished the right of occupancy and possession to another for a definite time, and, as the opinion recites, Haile was occupying the house exclusively at the time of the fire.
Here the stipulation is only against a change of possession. One might be in possession of property which he did not occupy, and one might give another the right to occupy which would deprive the owner of his right of possession, at least for the period of time that the right of occupancy exists. But this is the question which the instruction quoted submitted to the jury. Under the instruction the jury was told to find for the defendant insurance company if it were found that the occupant was not in possession for the owner. The court directed the jury to find for the insurance company if it were found ihat appellee’s brother was in possession as tenant, although the tenancy was at will, but to find for the plaintiff if it were found that appellee’s brother was in pos session as a mere caretaker. It thus appears that the court did not submit to the jury the question whether the insurance company had waived the stipulation against change of possession through the notice given its agent by appellee.
In the case of Queen of Arkansas Ins. Co. v. Pendola, 94 Ark. 594, 128 S. W. 559, the policy sued on contained a provision invalidating it if there were a change of occupancy or possession, and Justice Battle, speaking for the court, said: “An insurance company has the right to determine what property it will insure, and to make its liability for such insurance dependent on the occupant. This is a matter of contract. The insured has the right to determine what insurance he will accept; and, when he enters into a contract with the insurance company in which the property insured is specified, and the insurance is made to depend upon the change of occupancy, he is bound by the contract, and he cannot change the occupancy of the property contrary to the terms of the policy and hold the insurer liable. He cannot change the contract. This is necessary for the protection of the insurer. ’ ’
It is not our intention to impair the doctrine of that case, 'but we do hold that there was no such change of possession as to render the policy here sued on void under the provision set out above, where the jury has found, under evidence sufficient to support the finding, that the owner did not surrender his possession and right to occupy, but had only turned the property over to a caretaker during his temporary absence.
In volume 2 'Cooley’s Briefs on the Law of Insurance, page 1723, it is said: “However, it is often difficult to determine what constitutes a change of possession within the meaning of a policy. In Rumsey v. Phoenix Ins. Co. (C. C.), 1 Fed. 396, 2 Fed. 429, it is said that the change of possession contemplated by a provision of this kind is something more than a change of occupation. It is a change effected ‘by legal process, judicial decree, voluntary transfer, or conveyance’; one which refers to insured’s possessory right, and not to his occupancy of the premises. The temporary absence of the insured, leaving the premises in the charge of an agent who occupies them, is not such a change of possession as will terminate the policy (Shearman v. Niagara Fire Ins. Co., 46 N. Y. 526, 7 Am. Rep. 380; s. c. 2 Sweeny, 470, 40 How. Prac. 393). Nor is it a change of possession to admit another into actual possession under a parol license for the single purpose of making repairs (Alkan v. New Hampshire Ins. Co., 53 Wis. 136, 10 N. W. 91). On the theory that the change of possession contemplated by a policy is something more than a mere change of occupancy, it was held in Rumsey v. Phoenix Ins. Co. (C. C.) 1 Fed. 396, 2 Fed. 429, that a lease of the premises and occupancy by the tenant was not a violation of the policy. A contrary rule is, however, asserted in Wenzel v. Commercial Ins. Co., 67 Cal. 438, 7 Pac. 817, and in Planters’ Mutual Ins. Assn. v. Dewberry, 69 Ark. 295, 62 S. W. 1047, 86 Am. St. Rep. 195, it was said that a lease of the premises vitiated the policy. But it is to be noted that the holding in the Wenzel case was overruled by implication in Smith v. Phoenix Ins. Co., 91 Cal. 323, 27 Pac. 738, 13 L. R. A. 475, 25 Am. St. Rep. 191, and that the condition involved in the Dewberry case was against change of ‘ occupancy or possession’.”
We conclude therefore that there was no error in the instruction set out, and that the testimony is legally sufficient to support the finding that there was no change of possession.
Upon the question of the failure to make proof of loss, but little need be said. The undisputed testimony shows that on the day after the fire appellee wrote the company, advising that the house had burned, and that he personally notified Mr. George, and asked him about the proof of loss, and appellee testified that George stated he would attend to this.
George admitted that he made a report of the loss to the company on one of the blanks furnished by the company for that purpose, and this report was based upon what appellee had told him. There was no contention that any information was desired which appellee failed to furnish. Appellee testified that George offered him $350, or one-half the policy, in settlement of the claim, and advised him not to sue if he was not willing- to accept that amount. George admitted that he was authorized by the. company to adjust the claim, and that he did not prosecute the settlement because appellee refused to sign a non-waiver agreement.
By § 6147, C. & M. Digest, it is provided that “a fire insurance policy, in case of a total loss by fire of the property insured, shall be held and considered a liquidated demand against the company taking such risk for the full amount stated in such policy, or the full amount upon which the company charges, collects or receives a premium; provided, the provisions of this article shall not apply to personal property.”
The insured building- was totally destroyed by fire. Appellee reported the loss promptly, and had several conversations with Mr. George about the proof of loss, and George told him, within the time when proof of loss could be made, that he (George) would make a report, and that he did so, and George admitted that he did make a report on a blank provided by the company for that purpose, and that included in this report was a statement about appellee removing from the property, and that, in response to his letter to the company inclosing this report, the company wrote him to take up the matter of adjustment of the loss, provided appellee would sign a non-waiver agreement, but, as the agreement was not signed, he did not attempt to make a settlement.
In the case of National Union Fire Ins. Co. v. Wright, 163 Ark. 42, it was said that, “if an authorized agent, within the time specified for making proof of loss under the policy, enters into' negotiations for the adjustment of the loss, or otherwise treats this requirement of the policy as having been complied with, or as waived, then the company cannot thereafter defend upon the ground that a proof of loss was not furnished” (citing-cases).
It is also settled that if, within the time when proof of loss might he made, the insured furnishes such information in regard, to the loss as is apparently sufficient to meet the company’s requirements in this respect, the company cannot, after the time within which proof of loss might be made has expired, be heard to say that the proof of loss furnished was not sufficient. Glens Falls Ins. Co. v. Jenkins, 169 Ark. 1015, 277 S. W. 541.
No error appears, and the judgment is therefore affirmed.
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Kirby, J.,
(after stating the facts). No error was committed by the trial court in refusing appellant’s prayer for instructions numbered B and F, 4 and 23. Instructions B and F were argumentative, and, in effect, amounted to instructions upon the weight of the testimony, telling the jury what importance should be attached to the evidence or lack of evidence, which this court has said should not be done. Bullard v. State, 159 Ark, 435. Moreover, these instructions were fully covered by instructions numbered 16, 17, 18, 22 and 23, given by the court.
Instruction No. 4, refused, was likewise fully covered by instruction No. 20, correctly given by the court upon its own motion, and it was unnecessary to give more than one instruction of the law applicable to the particular facts. Housely v. State, 143 Ark. 425, 252 S. W. 584.
Neither was error committed in refusing to give requested instruction numbered 23, telling the jury “if any of the testimony in the case is susceptible of two constructions, one of guilt and one of innocence, then it is your duty to give it the construction of innocence.” The court correctly instructed the jury on the.law relating to weighing the testimony, the presumption of innocence and the question of reasonable doubt, and there -was no attempt to prove the guilt of defendant by inferences to be drawn from facts and circumstances established by the testimony. DeShazo v. State, 120 Ark. 494, 179 S. W. 1012; Cooper v. State, 145 Ark. 403, 406, 224 S. W. 226; Wawak and Vaught v. State, 170 Ark. 329, 279 S. W. 997.
Relative to the assignment that error was committed by the trial court in permitting the instructions, two oral instructions not transcribed, hot included, sent to the jury room without the consent of appellant or his counsel, it will suffice to say that, since the case is to be reversed on another point or assignment of error, and remanded for a new trial, at which no such ground for objection is likely to occur, we do not find it necessary to pass upon it now.
This court has concluded, however, that error that calls for reversal of the judgment was committed by the trial court in his conversation with, or instruction to, the foreman of the jury in the hall outside of the jury room, and away from the presence of defendant and his attorneys. The court, in explanation of this incident as set out in the statement, said:
“I told him, in answer to -his inquiry, that the likelihood, of a parole was outside of their consideration of the case, and they should not let that weigh with them at all, and I told him at that time to mention that fact to the jurors, that they shouldn’t take into consideration the likelihood of pardon in the case at all, because it wasn’t a matter for them to determine. Just fix the punishment, whatever it was, or what they thought should be fixed.”
Section 3192, Crawford & Moses’ Digest, provides how a jury, after it has retired for deliberation, shall acquire information on any point of law or about any part of the evidence, if there is disagreement, that they must require the officer to conduct them into court, where the information required must be given in the presence of, or after notice to, the counsel of the parties. Its provisions are mandatory. The jury might well have con- eluded that this instruction was an expression of the court’s opinion upon the weight of the testimony and the guilt or innocence of the defendant by his saying, “Just fix the punishment, whatever it was, or what they thought should be fixed.”
In Wawak and Vaught v. State, 170 Ark. 329, the court said: “It is, of course, not only improper, but is error calling for the reversal of the judgment, for the court to communicate with the jury, in the absence of the defendant, any directions in regard to their verdict. Hinson v. State, 133 Ark. 149; Pearson v. State, 119 Ark. 152.” Neither could its harmful effect be relieved against by the testimony of the jurors, after the verdict was rendered, that they had already reached a verdict of guilty before the communication- or instruction was received, since the jury had the right to consider or reconsider the question of guilt until the delivery of the verdict, and the jurors are not permitted to testify about such matters, anyway.” Kindrix v. State, 138 Ark. 594, 212 S. W. 84.
For the error designated the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.
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Mfhaffy, J.
This suit was begun in the Washington Chancery Court, the plaintiff, J. N. Ward, stating that, on the 25th of February, he entered into an agreement for the purchase of lot 11, block 6, in the town of Fayetteville, Arkansas, and attached to the complaint is a copy of the agreement relied upon by plaintiff. The complaint further states that the agreement has been confirmed and approved by defendants, but that they have refused to convey lot 11, in block 6, and that said lot was the property of the Arkansas Cold Storage & Ice Company at Fayetteville, and that, under the terms of said agreement, plaintiff is entitled to said lot. That the defendants are trustees for the Arkansas Cold Storage & Ice Company, and have conveyed all the property of said company except this lot, and that the plaintiff is entitled to have a decree of specific performance directing defendants to convey to him said lot 11, block 6, in Fayetteville, Arkansas. The defendants answer, admitting that they entered into a written agreement, but deny that they sold to the plaintiff lot 11, block 6,inthecity of Fayetteville, and deny that the lot was owned by the defendants or the Arkansas Cold Storage & Ice Company at the time they made the sale. The answer further states that they sold and placed plaintiff in possession of all the real estate sold by them to the plaintiff, and that they did not sell or contract to sell lot 11. The agreement referred' to, and which was attached to the complaint, is as follows:
“Mr. J. H. Mcllroy, Trustee,
“Arkansas Cold Storage and Ice Co.
“Fayetteville, Ark.
“Dear sir: Confirming my proposition relative to buying the property of the Arkansas Cold Storage & Ice Company at Fayetteville and Springdale, Arkansas, we will buy the same and pay you eighty thousand dollars ($80,000) for the two properties, on approval of abstracts of the real estate and you making me a deed to J.N. Ward, trustee, you paying all bills of indebtedness and giving me a clear title to same, with the exception of grooving and tubing the cans, which contract is $600, which I will pay. Me retaining all old salvage on all machinery and pumps taken out of the Fayetteville plant, and I will allow you the option of buying twenty-five per cent., or $20,000 worth of the interest in the two properties sold, on the same basis of value that you sell same to me. This option good for 15 days.
“I will assume the payrolls account for the erection account for the workmen and labor on the Fayetteville plant from February 23, 1925, excepting the payroll of your regular employees and night engineer, which you will pay. We will all-ow you the use of the rooms in which your apples are stored at Fayetteville and Springdale plants until April 1,1925, you furnishing your fuel and paying your crew to operate the refrigerating machines to take care of the apples, we to take charge and complete plant at Fayetteville, beginning Monday, February 23, 1925, at our own expense. You to assign and transfer to me your contract with the Southwest Power Company, dated December 17, 1924, which I will assume and agree to carry out.
“I understand that the Springdale property, consisting of plant and equipment and the size of the lot, to be that part now occupied by the main building and 60 feet additional on the south side from the brick wall of said building, said 60 feet being of equal width across said lot, from east to west. In case there are any lawsuits pending affecting the title to said property, I agree that you may have the privilege of prosecuting said suits and perfecting the title of said real estate in whatever way is necessary to make good title, provided that you will give me a personal guarantee of yourself and F. P. Hall that you will hold me harmless by reason of any such liens or defect of title, until same are released or title perfected.
“This contract and agreement consists of two pages, executed in duplicate this February 25, 1925.
“J. N. Ward.
“We hereby acknowledge receipt of $1,000 paid by J. N. Ward on the above contract, which we have accepted and signed, on behalf of the Arkansas Cold Storage & Ice Company, this 25th day of February, 1925.
“ J. H. McIlroy, Trustee.
“Approved, F. P. Hall, Trustee.”
The testimony in this case shows that, after a survey was made and the controversy arose with reference to lot 11, the parties went ahead with the transaction and entered into an agreement and bill of sale to close the trade and to litigate the question as to the title to lot 11. The agreement and bill of sale is as follows:
“Whereas, the proposition of J. N. Ward to J. H. McIlroy, trustee, under date of February 25, 1925, relative to buying property of Arkansas Cold Storage & Ice Company at Fayetteville and Springdale, Arkansas, was accepted by J. H. McIlroy, trustee, and approved by F. P. Hall, trustee, and $1,000 was paid on said proposition.
“And whereas, by a warranty deed, the trustees under the agreement and declaration of trust dated May 15, 1922, and recorded in volume 207, at page 478 of the deed records of Washington County, Arkansas, have conveyed to J. N. Ward, trustee, lots 7 and 10, in block 6, in Fayetteville, Arkansas, and a part of lot 1 in block 7, in Fayetteville, Arkansas, more particularly described in said deed; also parts of lots 1 and 6 in block 1 of Holcomb’s Addition to the town of Springdale, particularly described in said deed.
“And whereas it is the contention of the said J. N. Ward that he is entitled to have conveyed to him lot 11 in block 6 in the town of Fayetteville under the terms of said proposition made by him and accepted by the said McIlroy and Hall, trustee:
“It is agreed between the said J. N. Ward and J. H. McIlroy, William J. Hamilton, F. P. Hall, W. H. McIlroy, Luke Powell and C. G. Dodson, trustees, that the .said J. N. Ward may accept said warranty deed and pay the purchase price of the said property without waiving in any way his right to litigate his. claim to said lot 11 under the terms of said proposition of February 25, and the said trustees hereby ratify and approve the acceptance of the said McIlroy and Hall of said proposition of February 25,1925, and hereby agree that, by payment of the purchase price, said J. N. Ward shall not waive any of his rights to insist upon a conveyance from the trustees aforesaid of said lot 11, and said trustees shall not waive any of their rights under said contract of February 25, 1925, by acceptance of the payment, except that théy shall not insist upon a repayment of the amount.
“And we, J. H. McIlroy, W. H. McIlroy, W. T. Hamilton, F. P. Hall, Luke Powell and C. G. Dodson, trustees, doing business under the name of Arkansas Cold Storage & Ice Company, by virtue of an agreement and declaration of trust, dated May 15,1922, hereby transfer, assign and sell to the said J. N. Ward, for and in consideration of the sum of one dollar and other good and valuable consideration, the personal property of every kind and character belonging to us as trustees or to the Arkansas Cold Storage & Ice Company, located on the real estate conveyed by the said warranty deed, and also all personal property which was contracted for by us prior to February 23, 1925, and which has since been delivered and placed on said real estate so conveyed.
“And it is agreed between parties hereto that in all things said proposition of J. N. Ward, as accepted by J. H. McIlroy and F. P. Hall, is confirmed and made a part of this contract, a copy of which proposition and acceptance is hereto attached and marked Exhibit A.
“It is further agreed that, in the event the said J. H. Ward shall bring a suit on said contract of February 25, 1925, for lot 11, we will enter our appearance to said suit, and that said suit may be tried on the merits as to whether or not, under said contract, he was entitled to said lot, without any claim or waiver on his part by paying the purchase price of said property, or any waiver on part of trustees by accepting it.
“In testimony whereof we have hereunto set our hands this 28th day of March, 1925.
“ J. H. McIlroy,
“W. H. McIlroy,
“F. P. Hall,
“Wm. J. Hamilton,
“C. G-. Dodson,
“Parties of the first part.
“J. N. Ward,
“Party of the second part.”
The only controversy in this case is as to whether appellees conveyed lot No. 11. The testimony on the part of the appellees tends to show that, before any action looking to the sale of the property was made by appellees to appellant, appellees had sold lot 11 in block 6 to Sanford. They not only testified to this, but testified that this fact was stated to J. N. Ward, appellant, when he was on the deal for the property. Witnesses for appellant deny this. The testimony is in hopeless conflict, and it would serve no useful purpose to set it out at length.
The appellant’s first contention is that the contract between the parties was in writing, and that parol evidence is inadmissible to vary or contradict the terms of the written contract. But does the oral testimony in this case vary or contradict the terms of the written contract? .The contract says: “Confirming my proposition relative to buying the property of the Arkansas Cold Storage & Ice Company at Fayetteville and Spring-dale,” etc. It would certainly require oral testimony to show what property the seller had, and oral testimony as to this does not vary the terms of the contract.
This court has recently said: “Parol evidence to vary the terms .of a written contract is one thing, such evidence to enable the court to say what the parties to the contract intended to express by the language adopted in making it is quite another thing. The former is not per missible. The latter is permissible, and is often absolutely essential to show the real nature of the agreement. Both rules are' elementary, and do not conflict in the slightest degree with each other. One prevents a written contract from being varied by parol evidence, either, in regard to what was said at the time it was made or prior thereto; the other aids in determining what the contract is when its language, either in its literal sense or as applied to the facts, is obscure. The one rule is to preservó the contract as expressed in writing; the other is a rule of construction to determine what the contract, as expressed, is, it being kept in mind' that the mutual intention of the parties, so far as the same can be ascertained, governs within the reasonable meaning of the language they chose to express it, and that rules of construction to discover it are not resorted to unless there is some ambiguity to be cleared up. A failure to keep in mind the wide distinction between varying a contract by parol evidence and resorting to such evidence in aid of its construction, often leads to error.” Brown & Hackney v. Daubs, 139 Ark. 53, 213 S. W. 4.
If the appellant went to Fayetteville and looked at the property, and it was pointed out to him, and he was told that lot 11 had already been either conveyed or contracted and he knew that this was not included in the property which appellees were offering to sell, then certain parol evidence would be admissible to show the particular property pointed out to him, and, when he made his proposition in writing for the purchase of the property of appellees, it would necessarily mean the property pointed out to him and the property both parties had in mind. We therefore think the court did not err in permitting oral proof to'enable the court to say what the parties to the contract intended to express by the language used.
Appellant’s next contention is thq,t the finding of the chancellor is clearly against the preponderance of the evidence. On appeal in chancery cases this court tries the issues de novo, and the findings of the chancellor are always treated as persuasive, and Ms findings will be reversed only when this court can be convinced that they are clearly against the preponderance of the evidence. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160; Langston v. Hughes, 170 Ark. 272, 280 S. W. 374.
This court has also said in determining the issues of fact by this court in chancery causes: “No weight is given to the findings of fact by the trial court unless the evidence is so conflicting as to leave the minds of this court in doubt as to where the preponderance lies. Where the evidence is evenly poised, or so nearly so that we are unable to determine in whose favor the preponderance lies, then the findings of fact by the chancellor are persuasive. * * The rule was early announced, and has been consistently adhered to, that the findings of the chancellor will not be set aside by this court unless they are clearly against the preponderance of the evidence.” Leach v. Smith, 130 Ark. 465, 197 S. W. 1160.
The testimony in this case was conflicting, and, after a careful consideration of the same, we are unable to say that the findings of the chancellor are clearly against the preponderance of the evidence. The judgment is therefore affirmed.
Mr. Justice Humphreys did not participate in tMs case.
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Humphreys, J.
This is an appeal from a decree approving a deed to 217 acres of land, executed on the '27th day of April, 1925, by D. C. Cypert, as commissioner, successor to W. H. Wardlow, commissioner, said deed being- based upon the sale of said lands by W. H. Wardlow, commissioner, to Lillian M. Troyer, the appellee herein, pursuant to a decree of foreclosure and order of sale to satisfy a lien upon said land in favor of said appellee for $604.85. The decree of foreclosure and order of sale was entered of record pursuant to a mandate of this court, in the case of Troyer v. Cameron, 160 Ark. 421, 254 S. W. 688, at the October, 1923, term of the Sevier Chancery Court. The commissioner sold the land on March 15,1924, after due advertisement, and appellee herein became the purchaser for the sum of $800. When the commissioner’s report of sale was filed, one of the appellants herein, the Bank of DeQueen, appeared and filed an intervention asking that it be subrogated to the lien of Henry Moore, Sr., which was a prior lien to that of appellee, and which prior lien had been satisfied by C. W. and Clara R. Cameron with money borrowed from it. The chancery court of Sevier County sustained the intervention of the Bank of DeQueen by declaring the latter !s right to subrogation. Appellee herein appealed from' that decree, and this court, on appeal, in the case of Troyer v. Bank of DeQueen, 170 Ark. 703, 281 S. W. 14, denied the right of subrogation to said bank, and reversed the decree of the chancery court, and remanded the cause with instructions to enter a decree dismissing the complaint of said bank for the want of equity. During the time the case of Troyer v. Bank of DeQueen, supra, was pending in the Supreme Court, the chancery court approved the sale of the land made on the 15th day of March, 1924, to the appellee herein, subject to the supposed prior lien of said bank, and ordered W. H. Wardlow, commissioner, to make a deed to Lillian M. Troyer, appellee herein. Before presenting- the deed, the commissioner was succeeded, as clerk and ex officio commissioner, by D. C. Sypert. At the April term, 1925, of the Sevier Chancery -Court, D. C. Sypert produced in open court his deed to Lillian M. Troyer, appellee herein, for approval. The deed was absolute and unconditional and made no reference to the supposed rights of the Bank of DeQueen. This deed was approved by the Sevier Chancery Court on the day it was presented.
Appellant contends for a reversal of the decree approving the deed, because the deed, made pursuant to a conditional order of sale, did not recite the condition contained in the order, and because the deed was made without any special order of the court directing D. C. Sypert, as successor to W. H. Wardlow, as commissioner, to execute same.
The condition in the order of sale was that the land should be sold subject to the lien of the Bank of DeQueen, but it was not necessary to recite the condition in the deed to make it a valid instrument. The deed, though absolute in form, conveyed no greater title than the order of sale upon which it was based. The form of the deed is immaterial now, however, for the supposed prior and paramount claim of the bank was denied to it in the case of Troyer v. Bank of DeQueen, supra, and, with the disappearance of the aforesaid lien, an absolute title passed under the order of sale and subsequent sale to the appellee herein, who was the purchaser.
The order of the court to W. H. Wardlow, to make the deed as commissioner, was binding upon his successor in office; so D. C. Sypert, his successor, had the right to make the deed without an additional order of the court directing him to do so. Authority was conferred upon him to make the deed by § 2196, Crawford & Moses ’ Digest, which is as follows:
“The clerks of the circuit courts in the several counties shall be clerks of the chancery courts and ex officio masters and commissioners thereof in each of the said counties,” etc.
No error appearing, the decree is affirmed.
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Smith, J.
J. A. Fallin brought suit in the Washington Chancery Court to foreclose a vendor’s lien on a house and certain lots in the city of Fayetteville which he had sold to Mrs. Lillie Vick, now Markle. A decree in his favor was rendered, and the clerk of the court was appointed commissioner to sell the land. ■ The judgment in Fallin’s favor was for $5,698.24 and interest. After advertising the lots for the time and in the manner directed by the decree, the commissioner sold the lots, and Fallin became the purchaser, his bid at the sale being $4,850.
The Arkansas National Bank filed an intervention in this foreclosure proceeding, in which it claimed that certain of the purchase-money notes had been assigned to it by Fallin as collateral to a $1,500 loan which the bank had made Fallin.
Exceptions were filed by Mrs. Markle to the confirmation of the report of the commissioner, but, as no testimony was offered in support of the exceptions, the report was confirmed, and the commissioner was directed to pay to the bank the sum found to be due it, unless Mrs. Markle should, before noon of the 20th day of March, 1923, “file a bond with the clerk of the Supreme Court on such terms as to procure a supersedeas, and shall cause the supersedeas to be delivered to said commissioner before said hour on said date.” The bond was filed with the clerk of the Supreme Court on the 18th day of March, and the supersedeas issued on that day.
This bond was conditioned as follows: “Now, the undersigned, as sureties, hereby covenant with the said appellee that'the said appellant will pay to the appellee all costs and damages that may be adjudged against th'e appellant on appeal; or in the event of the failure of the appellant to prosecute said appeal to a final .judgment in the Supreme Court; or, if the said appeal shall for any cause be dismissed, that said sureties shall pay to the appellee all costs and damages, together with all rents or damages to property during the pendency of the appeal, of which the appellees are kept but of possession by reason of the appeal.”
Before this bond was filed the commissioner’s report was confirmed.
The decree appealed from was affirmed by the court on December 27, 1923, and a judgment was rendered against appellant and the sureties on the supersedeas bond for the debt, interest and costs. The mandate from this court did not go down until July 19,1924. Thereafter Fallin caused execution to be issued by the clerk of the chancery court against said sureties on this ’ judgment. One of the executions was directed to the sheriff of Madison County, the other to the sheriff of Washington County. A motion was then filed by Mrs. Markle and the sureties to amend the judgment of this court, and the prayer of that motion was granted, and a nunc pro tunc order was entered affirming the decree of the court below and rendering judgment for all costs. In this judgment it was ordered that the executions which had previously been issued be recalled and quashed.
Fallin brought this suit against the sureties on the supersedeas bond, and alleged the facts recited above, and prayed judgment for the rents which had accrued on the property sold since the date'of the confirmation of the sale to him, and for all costs in the foreclosure proceedings.
Testimony was offered to the effect that, after the affirmance of the foreclosure decree by this court, negotiations were entered into between Fallin and the sureties on the supersedeas 'bond whereby the judgment should be paid and the property returned to Mrs. Markle. The proposition was also considered of making a private sale of the property by Mrs. Markle, and, as a means to that end, she executed a deed to J. P. Harter, 'who was one of the sureties on the supersedeas bond, as trustee. Harter was in possession of the property from May 19, 1924, to April 24,1925, during which time he collected the rents on the property.
A decree was rendered in the suit on the supersedeas bond, in which all the sureties were held liable for all the costs of the foreclosure proceeding, including the costs on the two executions, and the costs of the commissioner’s sale and the confirmation thereof, and for the rent of the property to the time Harter, as trustee, took possession of the property, and a decree was rendered against Harter alone for the rent collected by him, less certain expenses he had incurred in making repairs and certain insurance he had paid, and this appeal is from that decree.
We think the court below was in error in charging the sureties with the costs on the two executions, amounting to $17, because there was never in fact any authority for the issuance of these executions. They were issued to enforce a liability which we held, when the matter was called to our attention, did not exist against the sureties.
We think, however, judgment was properly rendered against the sureties for all other costs. The supersedeas bond expressly covered those items.
The real point in controversy, however, is the rents on the property accruing since the confirmation of the commissioner’s sale. Appellants invoke the doctrine of many cases to the effect that a mortgagor in possession cannot be held liable for rent on the mortgaged property, the measure of his liability being interest on the debt which the mortgage secures.
We think, however, that this doctrine is not applicable here. It is true Mrs. Markle was a mortgagor in possession, but she had another relation to the property. She is also a judgment debtor in possession of property which had been sold under a decree of foreclosure and the sale had been duly confirmed after exceptions thereto had been overruled. After the decree of confirmation the purchaser was entitled to the possession of the property, and his right to the possession was postponed by reason of the supersedeas bond, wherein the sureties assumed and agreed to pay the damages and costs. Fallin’s bid became a credit on his judgment when the sale was approved and confirmed, and he was thereafter entitled to the possession of the property. He was not thereafter entitled to 'interest on his entire judgment, but to interest only on the part of the judgment which his bid at the commissioner’s sale did not suffice to pay. The supersedeas bond operated to deprive Fallin, not of interest, but of rent, because the measure of damages for the detention of real estate, to the possession of which one is legally entitled, is the rental value of the property.
In the case of Wilson v. King, 59 Ark. 32, Judge Battle said: “The effect of the bond (a supersedeas bond to enable appellant to retain possession of land) is to secure the payment of the value of the use of the property for the-time the appellee was deprived of the possession and the damages to it during the same time, in the event the judgment or decree is affirmed.”
Appellants say, however, that there was no demand for possession until most of the rent here sued for had accrued. It may be conceded that Fallin might have secured possession of the property at an earlier date than-he did secure it by suing out a writ of possession; but it is also true that Mrs. Markle and her sureties could have arrested the accumulation of liability on the bond by surrendering the possession of the property. Moreover, it is shown here that the delay in taking possession of the property was the result of an indulgence to enable the sureties to retake the property and make a more advantageous sale thereof than the commissioner had made. This sale was not made, and the sureties are in no position to complain of the delay.
It is finally insisted that it was error, in any event, to render .judgment against Harter individually for any of the rent, for the reason that this is a suit on the supersedeas bond, and that Harter’s liability is common to that of the other sureties.
We think there was no error in rendering a decree against Harter for a larger amount than was rendered against the other sureties on the bond. The complaint alleges “that, after the affirmance of the said judgment by the Supreme Court, the defendant, J. P. Harter, took possession of the premises, and has rented the same to other persons to the present time.”
Had Fallin elected so to do, he might have sued Harter alone on the bond. Harter might have raised the question of the right of contribution as against the other sureties; but that question does not arise here, because the judgment against Harter individually is for a sum which he does not question'came into his hands personally. The decree only requires him to pay a sum of money which he admits receiving, and he was allowed the credits to which he was entitled.
The decree of the court below will therefore be modified by striking out the items of costs* incurred in connection with the executions, and in all other respects will be affirmed.
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Hart, J.,
(after stating the facts). Over the objection of the plaintiff, the court instructed the jury that, if J. L. Cannon, the agent for the plaintiff, requested the defendant’s agent to divert the shipment of apples from Dallas, Texas, to Austin, Texas, saving the through rate if possible, the delay in Dallas was justified. It is earnestly insisted by counsel for the plaintiff that this instruction was abstract and necessarily prejudicial to the rights of the plaintiff, because there is no testimony in the record tending to show that the plaintiff asked the defendant to save the through rate in making the diversion order. In this contention we think counsel for the plaintiff is correct.
The diversion order was in possession of the defendant, and was not produced at the trial. J. L. Cannon, who was the agent for the plaintiff, and who acted for it throughout in the transaction, gave in his testimony what purported to be a copy of the diversion order. There is nothing in it about saving the through rate. According to the testimony of Cannon, the diversion order was not upon any condition whatever. There is nothing in the record whatever from which it might be inferred that the diversion order was subject to the condition that the railway company was to secure a through rate if possible. It is true that the order was diverted via M., K. & T. Railroad, and that the evidence on the part of the defendant shows that a through rate could not be obtained over this route. This, however, was not sufficient evidence upon which to base the instruction. The plaintiff may have known that it was necessary to get the car of apples to Austin as quickly as possible and may have chosen this route on that account. Be that as it may, the fact that the car of apples was directed to be diverted over the M., K. & T. Railroad is not sufficient evidence that a through rate over that line was requested. There is no other testimony whatever in the record upon which to predicate such an instruction. It follows that the court erred in giving the instruction complained of.
Inasmuch as the judgment must be reversed, we call attention to the established rule of this court as to the measure of damages. The general rule of damages for unreasonable delay in the transportation of goods is the difference between the market value of the goods at the time and place when and where they should have been delivered and their value when they were delivered, with interest. St. L. I. M. & S. R. Co. v. Coolidge, 73 Ark. 112, 83 S. W. 333; K. C. Sou. Ry. Co. v. Mabry, 112 Ark. 110, 165 S. W. 279; K. C. & Memphis Ry. Co. v. Oakley, 115 Ark. 20, 170 S. W. 565; and St. L. I. M. & S. Ry. Co. v. Tilby, 117 Ark. 163, 174 S. W. 1167.
For the error in giving the instruction complained of as indicated in the opinion the .judgment will be reversed, and the cause remanded for a new trial
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Mehaeey, J.
This is the second appeal in this case. When the case was in this court on appeal first (City Nat. Bank v. Baum, 166 Ark. 18, 265 S. W. 648), this court held that the note was void, and a recovery could not be had unless the bank was an innocent holder thereof. The court stated: “It follows therefore, from the
decision in the Handle case, supra, that the payee in a note executed in violation of the Blue Sky Law cannot recover; but it also follows, from the case of German Bank v. DeShon, supra, that the right to recover on such a note will not be denied an innocent holder because the Blue Sky Law does not contain the declaration that contracts executed in violation thereof are void. The judgment of the court below will therefore be reversed, with directions to submit to the jury the issue whether the bank is an innocent holder thereof.”
When a case has been in this court and reversed, the law announced in the former appeal is the law of the case when it comes here on the second appeal.
“Propositions of law once decided by an appellate court are not open to reconsideration in that court upon a subsequent appeal or writ of error.” Brown v. Zinc Co., 179 Fed. 309; Hunt v. Illmois Ry. Co., 184 U. S. 77.
“An actual decision of any question settles the law in respect thereto for further action in the case.” Mutual Life Ins. Co. v. Hill, 193 U. S. 551.
“Where the facts appearing upon a second appeal are the same as those upon a former appeal, the legal effect of the facts is determined by the decision on a former appeal, which is the law of the case for the second appeal.” Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S. W. 393.
The facts in the present ease are substantially the same as the facts in the case heretofore decided by this court. It therefore follows that the law as announced in 166 Ark. 18, 265 S. W. 648, is the law of this case on this appeal.
It would be useless to set out the testimony at length. There was no dispute about the fact that the notes were given for stock issued by the corporation without having complied with the Blue Sky Law, and were therefore uncollectable, according to the opinion of this court, unless the plaintiff was an innocent holder. This was really the only issue in the case. Appellant offered to introduce evidence tending to show that the holder of the note had knowledge of the condition of the corporation selling the stock when appellee took the note. We think this was immaterial 'because, whether the corporation was solvent or insolvent, in good condition or bad condition, the note was uncollectable if the holder knew that it was given for stock which was issued and sold in violation of the Blue Sky Law. Appellant did not have to prove the condition of the corporation, did not have to prove any representations inducing him to purchase the stock. Even if the corporation had been solvent, and no matter how prosperous it may have been, if it issued and sold the stock in violation of the Blue Sky Law and took the note for said stock, the note was void, and, if the appellee knew these facts, it could not recover. It was admitted that the stock for which the note was given was sold in violation of the Blue Sky Law, and the court instructed the jury that the burden was upon the appellee to show that it was an innocent holder.
The only thing necessary for appellant to show, in order to entitle him to a verdict, was that the appellee knew that the note was given for stock of the corporation which had been sold in violation of the law. Appellant offered no proof tending to show that the appellee knew of any fraud, or knew that the note was given for stock. On the contrary, the appellee’s testimony tended to show that it was an innocent holder, and the question was submitted to the jury under instructions from the court telling the jury that the burden was on the appellee to show that it was an innocent holder. It was a question of fact submitted to the jury under proper instructions, and the jury found in favor of the appellee.
The appellant offered to show that he was approached by the secretary and treasurer of the Crystal Glass Company, solicited to buy stock, and that false representations about others purchasing stock and about the condition of the company were made to him, and that he took these statements into consideration when he bought the stock, but he did not offer any proof tending to. show that the appellee knew that the notes were given for stock issued in violation of the statute.
There was also some proof that the president of the hank advised one witness to not purchase the stock, but this does not tend to prove that he knew that the note which the bank held was issued .for stock. It would be useless to prolong the discussion, for, as we have said, it was a question of fact properly submitted to the jury, and, if there is any substantial evidence to sustain the verdict of a jury, it will not be disturbed on appeal. It therefore follows that the case must he affirmed.
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McCulloch, C. J.
In September, 1919, John N. Schichtl, one of the appellees, became the owner in fee simple of a tract of land in Lee County, Arkansas, containing 643 acres, known as the Sullivan place, the consideration- for the purchase being the sum of $40,000, of which $10,000 was paid in cash to J. K. Sullivan, the vendor, and annual installment notes were executed for the balance, with a mortgage on the land to secure the same. Sullivan subsequently assigned the notes to appellant. About the same time, Schichtl purchased an adjoining tract of land containing about 1,100 acres, known as the Highland place, the consideration for the purchase being $28,500, which was all paid in cash except $5,000, a note and mortgage on the land securing the same being executed, and this note also was assigned -to appellant. Neither of these debts was paid, and on June 22, 1922, appellant, being still the legal holder of said notes, instituted actions in the chancery court to recover judgment against Schichtl and to foreclose the lien on said tracts of land. The amount of the several debts for which the decree was rendered was $31,950, the indebtedness against the Sullivan Place, and $5,000, the indebtedness against the Highland place. This decree was rendered on September 27,1922, and a sale of said lands was ordered to pay the debt. The sale was made by the court’s commissioner on January 23,1923, and appellant became the purchaser of the Sullivan place for the consideration of $35,000, and of the Highland place for the sum of $5,000, the amount of the indebtedness against that place. .
It appears from the undisputed proof adduced in the present litigation that, during the time that Schichtl owned these lands and a year or two before the foreclosure of the mortgages, he collected from the St. Francis Levee District the sum of $20,000 as damages caused by the taking of a right-of-way along the Mississippi River for reconstructing the levee. Out of this fund thus collected, Schichtl spent $9,000 fn the erection of a gin on the Sullivan place, and he also erected three houses on the farm, the cost thereof not being disclosed in the evidence. Schichtl was also the owner of 630 acres of wild and unoccupied lands in Lee County, the value thereof not being shown in the record in the present case, and, during the pendency of the foreclosure proceedings and prior to-the rendition of the decree in the case, he conveyed those lands to his wife, Annie G-. Schichtl, one of the appellees, for the recited consideration of ten dollars and love and affection and funds which she had previously advanced to him.
Appellant commenced this action in the chancery court of Lee County on August 11, 1923, to set aside the said conveyance of John N. Schichtl to his wife and to subject the lands to the payment of the unpaid balance of appellant’s debt represented by the decree agninst John N. Schichtl. It was alleged in the complaint that the conveyance was executed bjr Schichtl to his wife without any valuable consideration and with fraudulent intent to cheat, hinder and delay appellant as his creditor. The answer contained denials of all the allegations of fraudulent intent in regard to the conveyance in question. The cause was heard upon oral testimony and upon an agreed statement as to some of the material facts in-the case, and the chancery court rendered a decree in favor of appellees, dismissing appellant’s complaint for want of equity.
There was a sharp conflict in the testimony upon some of the material facts, principally as to the mar ket value of the Sullivan place and the Highland place at the time of the execution of the deed by Schichtl to his wife which is alleged to have been executed with fraudulent intent. The chancellor made no special findings of fact, but we must assume that he found in favor of appellees upon all disputed facts which are essential to the support of the court’s decree.
Tt is undisputed that the consideration for the purchase of these lands in September, 1919, aggregated the sum of $68,500;'that the lands were worth that sum at that time, aiid that Schichtl spent $9,000 in improving the lands -by building a gin thereon, making a total valuation of $77,500. There is proof of further improvement of the Sullivan place by building three houses, but we find no statement in the record of the cost of those houses. If the $20,000 received by Schichtl from the St. Francis Levee Board should be deducted from the total valuation stated above in arriving at the true valuation, it would leave an aggregate valuation on the two farms of $57,500. According to the testimony in the case, the appraisers for the levee boards fixed the value of the lands taken at $250 an acre, and no improvements on the farm were taken into the right-of-way. The aforementioned settlement with Schichtl was made upon that appraisement.
The amount of the indebtedness against the two tracts of land at the time of the conveyance now under investigation was about $37,000. The commissioner’s sale of the two farms left a deficiency decree of something over $16,000. There was, as before stated, a conflict in the testimony concerning the value of the Sullivan place and the Highland place at the time of the conveyance under consideration, but we must accept the finding of the chancery court as conclusive, unless it is against the preponderance of the evidence. The testimony adduced by the appellees concerning the value of the two farms at the time of the execution of this deed was from $50,000 to $60,000, and the testimony adduced by appellant tended to show that the value of the two tracts at that time was from $35,000 to $40,000. According to the preponderance of the evidence, the value of the lands at that time was considerably above the amount of Schichtl’s indebtedness to appellant. The finding of the chancellor that the value was as much as that shown by the testimony of witnesses adduced by appellees is not against the preponderance of the testimony, and we must therefore accept that finding as correct. In addition to that, it appears from undisputed evidence that, after 'appellant became the owner of the Highland place, it sold timber therefrom at the price of $2,000. It is undisputed that Schichtl had no other indebtedness of any character except that to appellant, as above stated. Schichtl testified, as his reason for making the conveyance to his wife, that she had been in very bad health for two or three years, and constantly needed money, and that he conveyed the lands to her so that she could be prepared to take care of herself, He testified that he had no idea of defrauding appellant, and supposed that it would realize a sufficient sum from the sale under the mortgages to collect its debt.
It is thus seen that we have a finding of the chancery court in accordance with the preponderance of the evidence to the effect .that the deed of conveyance under investigation was executed without any actual intention to defraud creditors, and that the grantor was not insolvent at the time of the execution of the deed. The question then presented is, whether or not there was constructive or legal fraud conclusively presumed from the execution of the deed without consideration other than the grantor’s affection for his wife, the grantee. It should be noted, in the beginning of the consideration of this question, that our statute (Crawford & Moses’ Digest, § 4874) renders invalid only those conveyances “made or contrived with the intent to hinder, delay or defraud creditors * * * or as against creditors and purchasers prior and subsequent.” A conveyance, even without consideration, is valid against creditors and purchasers if its execution is free from fraud, either actual or presumed. Nearly every phase of the subject of fraudulent conveyances has been dealt with in numerous decisions -of this court. The subject was treated at length by Mr. Justice Compton in delivering the opinion of the court in Bertrand v. Elder, 23 Ark. 494. Reference was there made to the opinion of Chancellor Kent in Reade v. Livingston, 3 Johns. Ch. Rep. 479, where it was directly decided that a voluntary conveyance of property is, as against existing creditors, conclusively presumed to be fraudulent, and that no circumstances will he permitted to repel the presumption. But that decision was directly rejected by this court in the following'language: “Though the decision in this case is not unsupported, the decided preponderance of authority, both in this country and in England, is against it, and establishes a rule less rigid, and, in our opinion, more consistent with the sound interpretation of the statute of frauds.” After a full discussion of the authorities, the court said:
“The principle, as we apprehend, to be extracted from the decisions in England and .America, is that the voluntary conveyance of a party to his wife or child, though he be indebted at the time, is prima facie only, and not conclusively, fraudulent, in respect to the claim of an existing creditor, and that the presumption thus raised may be met and repelled by proof on the other side. The question of fraud must depend on all the circumstances of the case, looking to the state and condition of the grantor, the extent of the property conveyed, and the direct tendency of the conveyance respecting the claims of creditors.”
Numerous decisions of the Supreme Court of the United States are cited in support of that statement of the law.
In the case of Driggs & Co.’s Bank v. Norwood, 50 Ark. 42, S. W. 323, 7 Am. St. 78, Mr. Justice Smith, speaking for the court, used the following language, which is in line with that used in the case cited above: “Every voluntary alienation of his property by an embarrassed debtor is presumptively fraudulent against existing creditors. Indebtedness raises a presumption of fraud, which becomes conclusive upon insolvency. But, as to subsequent creditors, a voluntary conveyance by a person in debt is not per se fraudulent. To make it so, proof of actual or intentional fraud is required.” AYe find in Judge Battle’s opinion in the case of Rudy v. Austin, 56 Ark. 73, 19 S. W. 111, 35 Am. St. 85, the following statement, ivhich is not only a most lucid exposition of the law on the subject, but has been often referred to in subsequent decisions:
“A debtor has the right to make reasonable provisions in property for his Avife or children, according to his state and condition in life. But, in doing so, he must retain in his possession property amply sufficient to pay all his debts. If he does so fairly and honestly, the child or AAdfe for AAdiom the provision Avas made is not bound to refund the advancement for the benefit of creditors, in the eA^ent the parent or husband should subsequently fail or become unable to pay the debts he owed when the provision Avas made. The law-requires every man to be just before he is generous. If he makes a voluntary conveyance AAdiile he is in debt, it presumes that it is fraudulent as to existing creditors, and the burden is on those claiming under the conveyance to repel the presumption. If he be iusoNent, unable to pay his debts, the presumption that it is fraudulent as to antecedent creditors is conclusive. ’ ’
The line as to the presumption of fraud is thus clearly draAvn betAveen attacks by prior existing creditors and subsequent creditors. The statute sibpra protects creditors of both classes, but there is a distinction as to presumption in the rules of evidence in the two classes of cases. As to subsequent creditors there is no presumption, and the burden of proof as to fraud rests upon the attacking creditor, Avhilst in the case of existing creditors there is a presumption of fraud arising from a voluntary conveyance by the insolvent debtor. Williams-Echols D. G. Co. v. Bloyd, 169 Ark. 529, 276 S. W. 1. The proof in this case and the finding of the court thereon is that Schichtl, the grantor, was not insolvent at the time he' made the conveyance to his wife, therefore there is no conclusive presumption of fraud under the rule stated by Judge Battle, even though appellant be placed in the same category with reference to presumptions as a prior existing creditor. There are authorities to the effect that a contingent liability, or one dependent upon a future contingency, is not to be treated as an existing debt within the meaning of the rule as to presumptive evidence. Severs v. Dodson, 53 N. J. Eq. 633, 34 Atl. 7. There are, however, authorities to the contrary. Thomson v. Crain, 73 Fed. 327; Sallaske v. Fletcher, 73 Wash. 593, 132 Pac. 648; Crocker v. Huntsinger, 113 Wis. 181, 88 N. W. 232. Some of those authorities, particularly the Washington case supra, do not relate to the statute on fraudulent conveyances, but merely to a statute which provides that a conveyance by one of the spouses to the other of community property ‘ ‘ shall not affect any existing equity in favor of creditors of the grantor,” and no reference is made to the question of fraud. We are not, however, dealing merely with the question whether the indebtedness is one which literally existed at the time of the conveyance alleged to have been executed with fraudulent intent, but the question is whether or not the indebtedness is held under circumstances which would call into operation a presumption of fraud. We have a case now of mortgage indebtedness, and the real question, so far as the case relates to presumption, is whether or not such conclusive presumption should be indulged in favor of the holder of the secured debt. The reason for indulging presumptions does not apply, we think, under those circumstances, and the authorities support the view that there is no presumption under those circumstances. May on Fraudulent Conveyances, p. 163; Bigelow on Fraudulent Conveyances, p. 188; Welch v. Mann, 193 Mo. 304, 92 S. W. 98; Cromby v. Young, 26 Ont. 194. The reason for this distinction in putting secured creditors in the same category as subsequent creditors is that, whatever presumption is to be indulged, the creditor, in selecting his security, has, unlike a general creditor, disregarded other property of the debtor and looked only to his security for the collection of his debt, hence he is entitled to no presumption of fraud in the conveyance of other property. Such a creditor is one who has already been given a preference over others, and is not in-the attitude of an existing general creditor, hence his reliance is deemed to have been founded on his security rather than on the solvency of the debtor. It seems to us that this is a sound distinction, but, at any rate, the trial court has necessarily found in this case that there was no insolvency on the part of the debtor, and no intention to defraud; therefore, even if there was a rebuttable presumption, it has been overcome by the proof. This view of the law is not in conflict with our decision in First National Bank v. Herring, 159 Ark. 317, 252 S. W. 37, which was a case of undisputed insolvency. Nor is it in conflict with the decision of this court in Wilks v. Vaughan, 73 Ark. 174, 83 S. W. 913, and James v. Mallory, 76 Ark. 509, 85 S. W. 472. In both of those cases the court dealt with the question of actual insolvency of the debtors, who were indebted ,to numerous general creditors, and in each instance such conditions were found by the court to exist. The term “embarrassed debtors,’’usedin Wilks v. Vaughan, supra, was evidently meant in the sense of insolvency in fact, which the court found was the condition of the debtor at the time the conveyance under investigation was executed. In James v. Mallory, supra, the court treated a mortgage creditor as an existing creditor, but, in doing so, it was in response to the argument that the renewal of a prior debt constituted a subsequent debt. The question now under consideration in regard to the status of a mortgage debt was not presented to us in the argument. In that ease, as in Wilks v. Vaughn, supra, there were numerous general creditors, and the debtor was insolvent at the time the conveyance was executed, and the court found that there was constructive fraud based on actual insolvency. In the present case there was neither insolvency nor actual fraudulent intention.
The finding of the chancery court is, as we have already said, not against the preponderance of the testimpny, and therefore should be affirmed. It is so ordered.
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TIart, J.,
(after stating the facts). It is conceded that the sole issue raised by the appeal is whether or not the circuit court erred in rendering judgment against W. W. Mitchell, the surety in the replevin bond of the defendant, for the sum of $225, which the proof showed -to be the value of the mortgaged property, instead of for $1,000 as named in the 'bond.
It is insisted by counsel for the plaintiffs that W. W. Mitchell, the surety on the delivery bond given by the defendant in the replevin suit, is liable for the full amount named in the bond instead of the value of the property, and that the court erred in only rendering judgment against Mitchell for the value of the property as found by the jury. We cannot agree with counsel in this contention. The liability of Mitchell as surety on the delivery bond in the replevin action is fixed by the terms and conditions of his bond. The terms of a delivery bond in a replevin action are fixed by statute, and the bond signed by Mitchell in this action is in conformity with the statute. Section 8655 of Crawford & Moses’ Digest reads as follows:
“In all actions for the recovery of personal property, where the defendant has given a delivery bond as now provided for by § 8649, the court or jury trying the cause may not only render judgment against the defendant for the recovery of the property, or its value, together with all damages sustained by the detention thereof, but ‘also, upon motion of the plaintiff, render judgment against the sureties upon his said delivery bond for the value of the property, and also damages as aforesaid, as the same may be found and determined by the court or jury trying the case.”
Mitchell, by the terms of his bond, bound himself unto the plaintiffs in the sum of $1,000 that the defendant, A. Atkins, should perform the judgment of the court. Under the provisions of § 8655, relating to actions in replevin, it was the duty of the court to render judgment against the defendant for the recovery of the property or its value, and also, upon motion of the plaintiff, to render judgment against the surety on the delivery bond for the value of the property and the damages sustained by the detention thereof. In the case at bar no damages were proved, and the value of the property was fixed by the jury, upon the evidence introduced, at $225. The cir- cult court correctly rendered judgment in favor of the plaintiffs against Mitchell for this amount.
It is true that the jury also found for the plaintiffs against the defendant in the sum of $1,284.23 for their debt, but the surety on the delivery bond was not concerned with the amount of the mortgage debt owed by the defendant to the plaintiffs. This, under our statute, is only done for the benefit of the defendant in order that he may pay the judgment for the balance due on his mortgage indebtedness and thereby prevent a foreclosure of the mortgage. Crawford & Moses’ Digest, § 7410. This part of the .judgment, however, does not affect the surety' on the delivery bond. Judgment can only be' rendered against him for the value of the property in case it is not returned by the defendant as provided in the judgment. Spear v. Ark. N. B., 111 Ark. 29, 163 S. W. 568; Bowser Furniture Co. v. Johnson, 117 Ark. 496, 175 S. W. 516; Barnett Bros. v. Henry, 133 Ark. 531, 202 S. W. 707; and Jones v. Keebey, 159 Ark. 586, 252 S. W. 551.
It follows that the judgment will be affirmed.
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McCulloch, C. J.
Appellant instituted this action against appellee on a policy of accident insurance issued to H. B. Rhodes, the benefit under the policy being payable to appellant.
H. B. Rhodes came to his death by accidental drowning at a swimming beach near Little Rock, and his death occurred during the existence of a policy of insurance issued’ to him by appellee. The case was tried by the court, sitting as a jury, and the facts were undisputed. The court rendered judgment against appellant, and an appeal has been prosecuted.
The parts of the policy which are deemed material to this controversy read as follows:
“This is a limited policy, and provides indemnity for loss of life, limb, sight or time, by accidental means, only to the extent herein provided.
“Policy No.................. Series No. ‘600A’
“United States Casualty Company “80 Maiden Lane, New York.
“In consideration of the payment of the premium and subject to the terms, conditions and limitations con tained herein, the United States Casualty Company of New York, heroin called the company, does hereby insure the owner of this policy, herein called the insured, against loss caused by bodily injuries as hereinafter provided and in the sums hereafter specified:
“Section A.”
(Here follows a list of injuries to different parts of the body covered by the policy, and the respective amounts).
“ * * * provided such injuries are not caused or contributed to by voluntary exposure to unnecessary danger, or by violation of the law on the part of the insured, and are effected exclusively by external, violent and accidental means, which shall, independently of all other causes, immediately, continuously and wholly disable the insured or be the sole cause of the death of the insured within one month of the date of the event causing such injury, and said injuries to the insured shall occur:
“While actually riding as a passenger and not being a railroad employee on duty, in a place regularly provided for the transportation of passengers within a surface or elevated railroad or subway car, steamboat or other public conveyance provided by a common carrier, for passenger service only, and while not being upon the step or steps, or getting on or off such conveyance; or
“While riding as a passenger in a passenger elevator used for passenger service only in a place regularly provided for the sole use of passengers.”
•Section B of the policy provides indemnity for loss of time resulting from certain accidental injuries not specified in the f oregoing section, but this does not include death_ by accidental drowning. Section C provides indemnity against loss of life occurring within a month after certain accidental injuries, and the clause is restricted to certain kinds of injuries and does not include the loss of life by drowning. The policy ran for a term of one year, and the annual premium was fifty cents.
The contention of appellant is that there is liability under section A of the policy, and the argument in the brief is devoted to the contention that death by accidental drowning comes within the definitions contained in that section. Conceding that accidental death by drowning is one ‘‘ effected exclusively toy external, violent and accidental means,” as contended by counsel, it does not follow that such an injury comes within the -terms of the policy, for the indemnity is, in express terms, limited to injuries which occur while the insured is riding as a passenger “within a surface or elevated railroad or subway car, steamboat or other public conveyance provided by a common carrier,” or while riding “in a passenger elevator used for passenger service only.” The policy is declared on its face to be a limited one and only to apply to the extent therein provided. This is further shown by the fact that the premium is Only fifty cents per annum, and the strict limitations in the policy are expressly stated in clear language. It is not a general accident policy, but one confined to particular injuries accurately described.
We think the court was correct in holding that death by accidental drowning did not come within the terms of the policy, therefore the judgment of the trial court is affirmed.
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"Wood, J.
L. S. McFadden, a property owner and taxpayer in Crittenden Count}7', Arkansas, instituted an action in the chancery court of Pulaski County*, for himself and other- taxpayers in Crittenden County, against the State Highway Commission and the individual members constituting that commission and the Harahan Viaduct Improvement District and the county .judge of Crittenden County, seeking to obtain a permanent injunction to restrain them from letting a contract on the 16th of November, 1926, for the construction of a viaduct in Crittenden County which is a part of a bridge over the Mississippi Diver, for which the Harahan Viaduct Improvement District was created by act 569 of the Acts of the General Assembly of the -State of Arkansas of the year 1923. The plaintiff alleged various reasons or grounds in his complaint, which we deem it unnecessary to set forth, and concludes his complaint by a prayer for a temporary injunction restraining the defendants from letting a contract on November 16, 1926, and, on final hearing, that the injunction be made perpetual. On November 15, 1926, the plaintiff applied to Chancellor John E. Martineau of the Pulaski Chancery Court, in vacation, for a temporary restraining order. The judge issued the following order:
“On this day there is presented to the court the application of L. S. McFadden et al., asking a restrain ing order against the above named defendants, enjoining them and their agents from letting a contract on November 16, 1926, for the construction of Harahan viaduct. And the court, being well and sufficiently advised in the premises, doth hereby order and adjudge: That the above-named defendants be and are hereby temporarily enjoined and restrained from proceeding with the letting of the contract as herefore advertised for the construction of the Harahan viaduct.”
On the 16th of November, 1926, the Harahan Viaduct Improvement District, through its board of commissioners, applied to the judges of this court for a writ of prohibition directed against the Hon. John E. Martineau and the chancery court of Pulaski County, to prohibit the enforcement of the temporary restraining ordei'. It is alleged in the petition for the writ of prohibition that the temporary restraining order above •set forth was issued without notice to the Harahan Viaduct Improvement Commission, and that no bond had been specified in the order or filed, as required by law, before the temporary injunction should become effective. The petition for writ of prohibition was duly verified by the secretary of the Harahan Viaduct Improvement District Commission. At the hearing before four of the judges of this court, in chambers, the plaintiffs in the original action appearing in person and through their attorney, Grover Owens, and the defendants in the original action appearing in person and through their attorney, M. B. Norfleet, Jr., the cause was heard on the petition and exhibits and the affidavits of witnesses showing that no notice had been served on the chairman or ' secretary of the Harahan Viaduct Commission of the application for the temporary restraining order, and an affidavit of M. B. Norfleet, Jr., showing that he' had applied to the chancellor to recall the temporary restraining order, which the chancellor had denied. It was conceded at the hearing that no bond had been filed with the clerk of the chancery court, and no order had been issued.
Our statute provides as follows: “In every case, the court or judge granting an injunction shall specify in the order therefor an amount for which the party obtaining it shall give security in a bond to the party enjoined, before the injunction shall become effectual, which amount shall be sufficient to cover all the probable damages and costs that may be occasioned by the injunction.” Section 5801, C. & M. Digest. Under the above statute, before the injunction order by the court could be issued or become effectual, the court must specify that the party obtaining it shall give a bond to the party enjoined, naming an amount sufficient to cover all possible damages and costs that may be occasioned by the injunction. Compliance with the above statute on the part of the judge of the chancery court was absolutely essential to his jurisdiction to direct the clerk to issue the order and to have the order put into effect. Without compliance with the above statute, any order issued by the clerk would be absolutely void, and disobedience of the order on the part of the defendants could not be held a contempt of the court or of the judge issuing the order. In other words, a compliance with the above statute is essential to the jurisdiction of the chancery court, or judge in vacation, to have the order for a temporary injunction issued and made effectual.
Section 5796 of Crawford & Moses’ Digest provides that the court or judge to whom an application for an injunction is made may direct a reasonable notice to be given to the party against whom the injunction is asked, to attend and show cause against it, at a specified time and place, and may, in the meantime, restrain such party. The chancery judge did not proceed under this section of the statute. The issuance of his order to enjoin the letting of the contract on the 16th of November, 1926, was tantamount to a permanent injunction, so far as the letting of the contract on that ■ day is concerned, and therefore § 5801 supra, requiring the court’s order to specify a bond,, was jurisdictional. The chancery court or judge had no jurisdiction to order the issuance and enforcement of a temporary injunction without complying with the above statute. The Supreme Court of Missouri, in State v. McQuillin, 260 Mo. 164, 168 S. W. 924, had under consideration the provisions of their Revised Statutes of 1909, § 2522, which is very similar to § 5801 su/pra. In that case the applicants for a writ of prohibition, directed to one of the judg'es of the circuit court, contended that the judge had no jurisdiction to award a temporary injunction without complying -with the provisions of the Missouri statute. The court held as follows: ‘ ‘ The right to grant a temporary or preliminary injunction (as one is called in equity jurisprudence which precedes a final decree) is forbidden by statute ‘until’ a sufficient bond is executed to the other party, ‘except in suits instituted by the State in its own behalf’;” citing the Missouri statute and other Missouri cases, and continuing: “If such an injunction is issued without bond, it is inoperative, and disobedience to its commands is not a contempt. Ex parte Miller, 129 Ala. 130, 30 So. 611, 87 Am. St. Rep. 49; State ex rel. v. Greene, 48 Neb. 327, 67 N. W. 162; 2 High on Injunctions, § 1429.” Further on in this opinion the court said: “In the case in hand, the learned respondent did- not issue a stay order to preserve the existing condition of affairs until he could hear the application for the temporary injunction, but he granted the temporary injunction in direct contravention of the terms of the statute making it his duty to require a bond before awarding that writ.”
In Ex parte Miller, 129 Ala. 130, 30 So. 612, the Supreme Court of Alabama, passing upon a statute which required the giving of a bond before the writ- of injunction became effectual, said: “Whatever might be the rule, in the absence of statutory regulations on the subject as to the time the writ becomes operative, we apprehend, under our statute, it can never be operative until the injunction bond has been executed. Such an order is conditional in its nature, and there can be no injunction, and consequently no contempt for its violation, until the bond has been given.” Citing 2 High on Injunctions, § 1429; 1 Beach on Injunctions, §269; Winslow v. Nayson, 113 Mass. 411.
If the judge of the chancery court had jurisdiction to order the temporary restraining order without the execution of a bond as required by statute, then, to be sure, such judge would have the power to punish the chancery clerk for failure to issue the order and to punish any one who acted in disobedience of such order. But, as we have seen from the above authorities, no one would be in contempt of court for disobedience of such, orders. It therefore follows that the judge is without jurisdiction to have such an order issued and enforced, and that such order is absolutely void. The prayer of the petition for writ of prohibition is therefore granted, and the chancery court of Pulaski County and the judge of the chancery court are hereby prohibited from issuing and enforcing an order for a temporary injunction restraining the petitioners herein from letting the contract on this the 16th day of November, 1926.
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IIart, J.,
(after stating the facts). Under an act of an extraordinary session of the Legislature, approved October 10,1923, power is given the State Highway Commission to promulgate reasonable rules and regulations to regulate traffic on State highway's. Extraordinary Acts of 1923, page 11. According to the rules promulgated pursuant to § 68 of the act, pedestrians on State highways are required to travel on the left side of the highway in order that they may face and thus see approaching automobiles.
It is the contention of counsel for the defendant that, under this regulation adopted by the State Highway Commission, the plaintiff ivas guilty of contributory negligence as a matter of law because she was walking on the wrong side of the road when she was struck by the automobile. It is sought to uphold the judgment on two grounds.
The first ground is that the State Highway Commission had no authority to promulgate a rule prescribing on which side of a State public highway footmen should walk. We do not agree with counsel in this contention. In 6 Ruling Case Law, page 179, § 179, the general rule is declared to be that there are no constitutional objections arising out of the doctrine of the separation of the powers of government to the creation of administrative boards empowered within certain limits to adopt rules and regulations, and authorizing them to see that the legislative will expressed in statutory form is carried out by the parties or corporations over whom such boards may be given administrative power. This doctrine has been recognized and applied by this court according to the facts of each particular case. Davis v. State, 126 Ark. 260,190 S. W. 436; State v. Martin & Lipe, 134 Ark. 421, 204 S. W. 622; and Britt v. Laconia Circle Sp. Drainage Dist., 165 Ark. 92, 263 S. W. 48.
The rule itself and the reason for it is stated in a clear and comprehensive manner by the Supremo Court of Illinois in People v. Roth, 249 Ill. 532, 94 N. E. 953, Ann. Cas. 1917A, p. 100. In discussing the subject, Vickers, C. J., said:
“The government of a State is not such an exact science that every possible contingency can be foreseen and provided for by legislative enactment. The agencies of government do not act automatically, but, to accomplish the ends of government, it is necessary to vest in its officers certain general powers,.with a discretion in the government agents as to their exercise. It would be as impracticable as it is undesirable to attempt to formulate in advance a set of hard-and-fast rules by which every conceivable public act should be governed.' In order to accomplish the ends of local government it has been found expedient to create various boards and commissions, which are charged with the duty of supervising, directing and controlling particular subjects, and to authorize such boards to formulate rules to carry out the object in view, and it has usually been held, in this and other States, that the granting of such power by the Legislature was not a grant either of legislative or judicial power.”
There can be no doubt that, in pursuance of its authority to regulate public highways and travel thereon, the Legislature may by statute prescribe general rules and intrust their enforcement to a State Highway Commission, and may give powér to the Commission to enact further rules not in conflict with the statute. 12 C. J. 847 et seq., and p. 917. If the Legislature, within reasonable limits, may enact statutes regulating the use of vehicles on the highways and prescribing the side of the highways upon which pedestrians may travel, in the application of the principles above announced, it is equally certain that the Legislature may delegate to the State Highway Commission the power to adopt reasonable rules and regulations to carry out the provisions of the statute regulating the use of the public highways of the State.
It is also insisted that the rule in question is of no effect because the statute under which the rule is promulgated is not sufficiently definite for that purpose. In this connection we think counsel for the plaintiff are correct. Where an act is too vague and uncertain to be effective, it is void on that account. Bittle v. Stuart, 34 Ark. 224, and Ex parte Jackson, 45 Ark. 158.
The rule prescribing upon which side of State highways footmen may travel was enacted under the authority of § 68 of the act referred to above. It reads as follows:
“Power is hereby conferred on the State Highway Commission to make all necessary and reasonable rules and regulations to carry out the provisions of this act, to regulate the traffic on State highways, including regulation of lights on motor vehicles, to fix the load limits and speed limits, the cancellation of licenses issued to incompetent or reckless chauffeurs, to regulate the placing of appropriate road signs and danger signals, to fix the duties of all persons employed by the Commission, including the State. Highway Engineer and secretary, and to issue necessary bulletins and publications. Said rules and regulations may be printed and distributed by the State Highway Commission.”
There is nothing in the section, when construed according to the plain and ordinary meaning of the language used, which would give the State Highway Commission the authority to adopt rules prescribing upon what side of the street highway pedestrians should travel. If the Legislature thinks such an act is desirable, it should declare its purpose in a statutory enactment, or should give the Highway Commission the power to do so in plain and unmistakable terms. . The Legislature, having-failed to confer the power upon the State Highway Commission, the courts cannot do so by judicial construction.
Then, too, the judgment must be affirmed for another reason. Even if the rule in question was rightfully in force, it could not be said as a matter of law that the plaintiff was guilty of contributory negligence which would preclude her recovery. A pedestrian, having equal rights with others to the use of the public roads, must exercise ordinary care for his own safety, and it is generally a question for the jury to say whether such care has been exercised. In the present case the burden of proving negligence was upon the plaintiff and of proving contributory negligence upon the defendant. Millsaps v. Grogdon, 97 Ark. 469, 134 S. W. 632, 32 L. R. A., N. S., 1177, and Minor v. Mapes, 102 Ark. 351, 144 S. W. 219, 39 L. R. A. N. S. 214. In the latter case the court held that, while drivers of automobiles and other vehicles have the right to share the street with pedestrians, they must anticipate the presence of the latter and exercise reasonable care to avoid injuring them, commensurate with the danger reasonably to be anticipated. In the case first cited, the court held that, a pedestrian and. the driver of an automobile each have the same right to the use of the streets of a city, and each is bound to the exercise of ordinary care for his own safety and the prevention of injury to others in the use thereof. In the application of this principle of law, even if there was a valid statute or a regulation of the State Highway Commission prescribing upon which side of a public road a pedestrian should travel, it could not be said that the pedestrian was guilty of contributory negligence as a matter of law for the reason he was struck by an automobile approaching from his rear; for the pedestrian might have some good cause or excuse for traveling on the wrong side of the road.
No other assignments of error are urged for reversal of the judgment, therefore it will be affirmed.
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McCulloch, C. J.
Appellant district was created as a local improvement district for the purpose of constructing through Jefferson and Arkansas counties a levee along the bank of the Arkansas River, and also to construct necessary ditches, spillways and floodgates. It was deemed necessary to construct two floodgates, one across the mouth of the stream known as Little Bayou Meto. The levee had been built across the mouth of the bayou, and it was considered necessary to put in the floodgate so that the water would be prevented from flowing into the bayou from the Arkansas River in times of overflow and to permit the water to flow out of the bayou in times of normal stages of water in the river. The work was to be done by cutting a gap through the levee fifty feet wide and constructing concrete walls, wings and flooring and two heavy steel gates reaching to the height of the levee and the two walls on each side, thus closing the aperture when necessary.
Appellees entered into a written contract with the district to furnish the material and construct the floodgates for the schedule of prices on the unit basis. The contract was executed on April 22, 1921, and provided that the work should be completed within six months from that date. There was long delay in completing the work, and it was not formally accepted by the engineers as complete until October 1, 1924.
The sum of $112,413.28 was paid to appellees by the district during the progress of the work, and there is a conceded balance due in the sum of $17,817.60 according to the schedule of prices in the contract. There are, however, numerous other items claimed by appellees, but disputed by the district, and the latter also brings forward a claim against appellees for liquidated damages on account of delay in completion of the work according to the terms of the contract. Appellant also claims other items as credits on the balance due appellees for work under the contract. The total amount of balance claimed by appellees is about $32,000, and this action was commenced against appellant to recover that' amount. Appellant filed a cross-complaint asking for recovery of liquidated damages in the sum of $25,342.79 and other credits claimed, running the amount up to $33,834.27, and, after conceding liability to appellees in the sum of $18,865.60, prayed for judgment over against appellees for the difference between the two claims, $14,968.67. The cause was tried in the chancery court of Jefferson County, without objection, and, after hearing the evidence, the court rendered a decree in favor of appellees against appellant for the recovery of $25,698.21, made up of the following items (less a credit of $17.23, unpaid on rental):
(1) Amount of final estimate..............................$17,817.60
(2) Item 15: Preparing sub-base, north end .................................................................................... 227.52
(3) Item 18: Preparing sub-base, L. L. section ................................ 6.43
(4) Item 20: Removing old concrete S. W. corner.......................*................................... 76.41
(5) Item 24: High water Feb., 1923............ 76.41
(6) Item 25: Creosoted seal timbers............ 512.29
(7) Item 26: High water, May and June, 1923 .................................................-........... 662.96
(8) Shortage and gravel............................................. 5,286.75
(9) Riprap stone.................................................................. 948.00
(10) Rent of concrete mixer....................................... 100.00
$25,715.44
The most important part of the controversy relates to appellant’s claim against appellees for recovery of liquidated damages on account of the delay in completion of the work. The contract between the parties contained a clause providing for liquidated damages, which reads as follows:
“In case of default in completing the whole work to be done under this contract within the time specified, including such extensions as may have been granted, the contractor hereby agrees to pay to the party of the first part as liquidated damages for such default: First, a sum sufficient to compensate said first party for the cost and expense of employing engineers, inspectors and employees to the extent that their services are reasonably required during the period of default by the work of this contract; and, second, a sum equal to one per cent, on all moneys that have been paid the contractor under this contract for each calendar month or part thereof that the completion of the whole work under this contract is delayed. The party of the first part shall have the right to deduct such liquidated damages from any moneys due or to become due the contractor, and the amount, if any, still owing after such deduction shall be paid on demand by the contractor or his surety. Payment of such liquidated damages shall not relieve the contractor or his sureties from any other obligations under this contract.”
According to the contract, appellees were to begin work on June 15,1921, and. the testimony shows that they began work a few days before that time. The work was to be completed, as we have already seen, on December 15, 1921, but it was not so completed, and in February, 1922, the commissioners of the district, by resolution duly passed, granted an extension to appellees to complete the work on or before November 15, 1922; and on March 15, 1924, the work not having been accepted, another extension to September 21,1924, was granted by the commissioners, and, as before stated, there was a formal acceptance on October 1,1924.
Testimony adduced by appellees tends to show that the gates were completed and swung in October, 1923, and were complete, except the painting and a slight defect about their working smoothly when being raised or lowered, and were used by the district from that time on, though there was no formal acceptance until October, 1924. There was a short delay in the early part of the work on account of high water, and there was a delay also during the summer and fall of 1921 on account of the inability of the district to make payments for the work as it was done. The district sold bonds in the sum of $1,100,000, the money to be advanced by the bond purchaser in installments, and there was a default in these advancements, which caused considerable delay in the work. Appellees also introduced testimony to the effect that there were numerous other delays resulting from causes beyond their control, and, in most instances, the delays were caused by the officers and agents of the district itself. In other words, there was testimony adduced by appellees tending to excuse themselves from fault with respect to the delay in completion of the work, but there is a conflict in the testimony, and, under the view we take of the case, it becomes unnecessary to settle this conflict. The clauses of the contract which are material to the decision of this point in the case are as follows:
“3. Time and Order of Completion. — The contractor agrees that the work shall be commenced and carried on at such points and in such order or precedence and at such times and seasons as may be directed by the engineers, in accordance with § 10 of the specifications. The engineers shall have the right to have the work discontinued for such time as may be necessary, in whole or in part, should the condition of the weather or of flood or other contingency make it desirable so to do, in order that the work shall be well and properly executed. Extension of time may be granted the contractor for discontinuance of work so required, as provided in § 4 of the specifications entitled ‘Extension of Time.’ * * * The board shall have the right, at its discretion, to extend the time for the completion of the work beyond the time stated in this contract, for reasons set forth in § 4, entitled, ‘Extension of Time,’ but such extension, if granted, shall waive no other obligation of the contractor or of the sureties, and, if the time for the completion of the work be extended by the board, then in such case the district shall be fully authorized and empowered to make such deductions from the final estimate of the amount due the contractor as are stipulated in the agreement for each calendar day that the contractor shall be in default for the completion of the work beyond the date to which the time of completion shall have been extended by the board. The contractor may be permitted or required to continue and finish the work or any part thereof after the time fixed by the contract for completion, or as it may have been extended, but such action shall in no wise operate as a waiver on the part of the district of its right to collect the liquidated damages agreed upon in case of such delay or of its rights under this contract.
“4. Extension of Time. — Delays due to cause beyond the control of the contractor, other than such as reasonably would be expected to occur in connection with or during the performance of the work, may entitle the contractor to an extension of time for completing the work sufficient to compensate for such delay. No extension of time shall be granted, however, unless the contractor shall immediately, but in any case within 15 days from the initiation of the delay, notify the engineers in writing of such delay, and of the time of beginning and the cause of same, and unless he shall, within 15 days after the expiration of such delay, notify the engineers in writing of the extension of time claimed on account thereof, then only to the extent, if any, allowed by the engineers. To allow or to require completion after the time specified will not constitute an extension of time. No extension of time shall operate to release the surety from any of its obligations. The contractor declares that he has familiarized himself with weather, river and local conditions and other circumstances which may or likely to affect the performance and completion of the work, and that he has carefully examined the data and information pertinent thereto collected by the engineers and on file in their office, and agrees that, taking these conditions and circumstances into account, he will provide adequate equipment to prosecute the work in such manner and with such diligence that the same will be completed within the time specified herein, or as the same may be extended, even though the most adverse conditions which reasonably could be expected to occur during the period of construction do prevail during the performance of the work. ’ ’ *
It will be noticed that § 3 of the contract, quoted above, provides that an extension granted by the board beyond the date of completion “ shall waive no other obligation of the contractor or of the sureties.” It is the contention of learned counsel for appellant that this provision eliminates all question' of waiver of the clause in the contract with respect to liquidated damages on account of delay. Conceding that this contention is correct, so far as it prevents waiver of claims for liquidated damages on account of delay occurring after the end of the extension period, it does not prevent the extension from operating as a waiver of claim for liquidated damages on account of prior delays. A further provision in the same section prescribing a method of computing damages for delay after the end of the extension shows very clearly that it was intended, in case of an extension of time, only to liquidate the damages which occurred after the end of the extension. It provides that, “if the time for the completion of the work be extended by the board, then in such case the district shall be fully authorized and empowered to make such deductions from the final estimate of the amount due the contractor as are stipulated in the agreement for each calendar day that the contractor shall be in default for tlje completion of the work beyond the date to which the time of completion shall have been extended by the board. ’ ’ There is still a further provision that mere permission to the contractor or a requirement to continue and finish the work after the time fixed for completion shall not operate as a waiver on the part of the district of its right to collect liquidated damages. But there is a difference in this respect between mere permission to complete the work or a requirement to complete it, and an agreement to extend the time for completion. The extension constituted a new contract concerning the time for completion, and all of the requirements of the original contract which related to that point and the liabilities resulting from a delay become merged into the new contract. The case .in this respect comes clearly within former decisions of this court. Ozark & Cherokee Central Ry. Co. v. Ferguson, 92 Ark. 254, 122 S. W. 624; Murray v. Miller, 112 Ark. 227, 166 S. W. 536; Morris v. Southwestern Supply Co., 136 Ark. 507, 206 S. W. 894; Hunt v. Woods, 168 Ark. 407, 270 S. W. 505. If appellant desired to hold .appellees liable under the contract for liquidated damages on account of prior delays, it should have been so stated in the contract of extension, and the agreement for the work to be completed within the additional specified time released appellees, by necessary implication, from any liability on account of failure to complete the work before that time. The resolution of the board granting the extension from March 21, 1924, contained a recital that “the board does not waive any claim of one per cent, liquidated damages due up to this date, ’ ’ but this did not constitute a contract to pay damages. The original contract provided that charge for damages should be made for such as accrued only after the expiration of periods of extensions, and this provision could not be abrogated except by express contract to that effect. The resolution granting the extensions did not constitute a new contract for the payment of damages. It was merely a stipulation against waiver of whatever claim the board might have under the original contract, and there could be no such claim, for, as already'shown, the contract itself covered damages only after the expiration of the extensions. For the same reason appellees were released by the new agreement in regard to time of completion from common-law liability, for actual damages sustained on account of prior delay. As we have already seen, the last extension ran up to September 21, 1924, which was nine days before the work was formally accepted by the engineers as complete. There is ho contention that there was any actual damage during that period of time, and it is practically undisputed that the work was actually completed before the expiration of the' last extension, hence the claim for either liquidated or actual damages cannot be sustained, and the chancery court was correct in so deciding.
Appellant concedes liability for the balance of estimate and the item of $948 for the price of riprap stone, and the sum of $100 rent on concrete mixer, and it does not challenge the correctness of any items contained in the court’s finding in favor of appellees except the two items of price of work in removing water and mud after the high waters in February and June, 1923, and also the item of $5,286.75 shortage in gravel. The two items concerning the expense on account of high water aggregate the sum of $1,175.25. There was an unexpected rise of water in the Arkansas River, and at those times the concrete walls on each side of the aperture through the levee had not been constructed. There had been partial excavation of the levee, which weakened it, and there was a hole or basin where the concrete floor was to be laid. In order to protect the levee from outside pressure of water, the engineers ordered the contractors to fill the hole or basin behind the levee full of water in order to provide counter-protection against such pressure. When the overflow from the river subsided it was necessary to pump the water out of the basin, and the mud that was left hindered the work of laying the concrete, and it required extra labor to obviate this trouble. The work, according to the testimony adduced by appellees, cost the sums of money claimed by them, and the chancery court allowed the claim. The contract contains the following provisions:
“11. To Provide for Emergencies. — It is understood by all parties to this contract that unusual conditions may arise on the work which will require that immediate and unusual provisions be made to protect the public from danger of loss or damage due directly or indirectly to the prosecution of the work, and that it is part of the service required of the contractor to make such provisions. * *
“37. Hindrances and Delays. — The risk and uncertainties in connection with the work are assumed by the contractor as a part of this contract, and are compensated for in the contract price for the work. The contractor, except as otherwise definitely specified in this contract, shall bear all loss or damage for hindrances or delays from any cause during the progress of any portion of the work embraced in this contract, and also all loss or damage arising out of the nature of the work to be done, or from the action of the elements, inclement weather and floods, or from any unforeseen and unexpected conditions or circumstances encountered in connection with the work, or from any other causes whatever; and, except as otherwise definitely specified in this contract, no charge other than that included in the con tract price for the work shall be made by the contractor against the district for such loss or damage. * * *”
Now, it appears from the testimony that the flooding of the basis behind the levee was necessary in order to protect the levee as well as the work then in progress of constructing the floodgates. It is true that appellees were not responsible for the condition that then existed and that it was an unexpected emergency, so that it relieved appellees of any responsibility for delay caused by the high water, yet the expense of restoration was one which, under the contract, was imposed upon appellees, and we think that they are not entitled to recover for the expense.
There is a conflict in the testimony as to the other item for shortage in gravel. The district had let the contract for this work to another concern, Trainer & Williams by name, who abandoned the work, and, when the contract was let to appellees, the district sold to appellees a quantity of gravel, estimated to be 2,200 yards, but, according to the testimony adduced by appellees; it turned out that there were only 1,087 yards. The estimates made by the respective parties were made under different circumstances, but we think that the state of the proof is such that we are not justified in overturning the finding of the chancellor on that item.
Appellant claims credit for two additional items which the court refused to allow — one in the sum of $6,827 for additional rent on equipment and an item of $1,647.25 for repairs on equipment. It is undisputed that the equipment owned by the district wa.s rented to the contractors for use in constructing the improvement, and there is a conflict in the testimony as to the terms of the agreement. At the time the equipment was rented to appellees the period of time for the completion of the work fixed in the contract had not expired, and the agreed rent was .to be $3,413.50, but appellant claims additional rent on account of the delay in construction of the work and consequent use of the equipment. The solution of this part of the controversy turns upon the question as to what period of time was to be covered by the agreed amount of rent. The testimony adduced by appellees shows that they were to have the equipment for “the life of the job,” and their contention is that this meant the whole time of the progress of the work, including the extension, regardless of any delays. Our conclusion is that appellees are correct in their interpretation of the contract. It meant that they were to have the use of the equipment for the stipulated rent, regardless of delays, unless the delays were caused by the fault of appellees and were not waived by extension agreements. The court was correct in rejecting that item, and also in rejecting the item for repairs on equipment, for there was a conflict in the testimony as to whether or not the equipment was returned in good shape, and we cannot say that the finding of the chancellor is ag’ainst the preponderance of the evidence.
Appellees have cross-appealed and claim additional items which were not allowed by the trial court, but, after consideration,'we are of the opinion that the findings of the court were as liberal to appellees as the * evidence justified.
The decree is modified by allowing the additional credit of $1,175.25 stated above, thus reducing the amount of recovery by appellees to the sum of $24,522.96, and judgment will be entered here for the balance thus found. It is so ordered.
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McCulloch, C. J.
Appellants are the owners of real property constituting a part of the territory annexed to Street Improvement District No. 5 of Russellville, and they instituted this action against the commissioners of the district, attacking the assessment of benefits. They also challenged the legality of the annexation proceedings, but have abandoned that portion of the controversy and confine themselves' to an attack on the assessments.
Street Improvement District No. 5 was organized as a municipal improvement district under general statutes (Crawford & Moses’ Digest, § 5656 et seq.), and the territory involved in this litigation was also annexed under the general statute (Crawford & Moses’ Digest, § 5733), which provides that, after the passage of the ordinance annexing the territory, the commissioners of the original district “shall make the assessment for said improvement on the territory annexed under the provisions of this act on the same basis as if said territory was included in the original district.”
We have held that the general statute applicable to the method of assessments in original districts is applicable to assessment proceedings concerning annexed territory. Poe v. Street Improvement District, 159 Ark. 569, 252 S. W. 616. The assessment of benefits in the annexed territory was duly made and notice of the date of hearing given, pursuant to statute. Crawford & Moses’ Digest, § 5658. This action was instituted by appellants more than thirty days after the approval of the assessments, therefore the attack upon the validity of the assessments is collateral.
The contention of appellants is that the assessments are void because made on front-foot basis. This does not necessarily condemn the assessments, even on a direct attack, for such a basis of assessments may coincide with the actual benefits. In a direct attack upon the validity of assessments, it becomes a question of proof whether or not the assessments are correct, but in a collateral attack we must indulge the presumption that the asses sors considered all tlie elements of enhancement of value or detriment which .might result from the improvement, and the court is not at liberty to disturb the finding of the assessors unless the assessment is demonstrably erroneous on its face.
Decree affirmed.
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Hart, J.,
(after stating the facts). Michie, in his treatise on Banks and Banking, vol. 2, § 141 (1c), lays down the general rule governing cases of this sort as follows:
“Where a check is offered and received by the drawee bank as a deposit, credited to the holder’s account, and charged to the account of the drawer, the transaction is irrevocably closed and cannot be rescinded or recalled by the bank or the drawer without the consent of the person to whom payment- was made, except for fraud or mistake ’ ’
The general rule proceeds upon the theory that, when a bank accepts a check or draft on itself, by depositing to the credit of the person presenting it the amount of the check, it is presumed to know whether the check at that time is good or not, and, if it unconditionally accepts it, it cannot thereafter repudiate it in this respect. The general rule has been recognized and followed by this court. Burns v. Yocum, 81 Ark. 127, 98 S. W. 956; and Sanders v. W. B. Worthen Co., 122 Ark. 104, 182 S. W. 549.
In American National Bank v. Miller, 185 Fed. 338, the Circuit Court of Appeals, Sixth Circuit, lays down the rule to be that, where a check was offered and received by the drawee bank as a deposit, credited to the depositor’s account and charged to the account of the drawer, the transaction constituted complete payment of the check and could not be rescinded except for fraud or mutual mistake.
This case was appealed to the Supreme Court of the United States and the judgment affirmed in 229 U. S. 517, under the style of the American National Bank v. Miller. Mr. Justice Lamar, who delivered the opinion of the court, in discussing the subject said:
“There are some, disadvantages of sending a check for collection directly to the bank on which it is drawn, but, when such bank performs the dual function of collecting and crediting, the transaction is closed, and, in the absence of fraud or mutual mistake, is equivalent to payment in usual course. National Bank v. Burkhart, 100 U. S. 686, 689.”
We are of the opinion that the exceptions recognized in the cases just cited are in accord with the holding of this court on the subject. In Arkansas Trust do Banking Co. v. Bishop, 119 Ark. 373, 178 S. W. 422, the court said:
“The only question in this case for the decision of the jury was whether the bank accepted the cheek and became liable for the payment of the amount for which it issued its deposit slip to the drawee thereof. The intention of the parties to the transaction could properly have been shown for the determination of this question, and, the bank having issued its regular deposit slip or ticket for the amount of the check to the drawee thereof, the burden rested upon it to show that it was not in payment of the check.”
Again, in Sanders v. W. B. Worthen Co., 122 Ark. 104, 182 S. W. 549, the court said:
“When a check is taken to a bank and the bank receives it and places the amount to the credit of the customer, the title to the check is vested in the bank. The rule as stated is not an absolute rule, but it is prima facie merely, and yields to the intention of the parties, express or implied, from the circumstances.”
It is a well recognized doctrine of equity jurisprudence that fraud or mistake vitiates every transaction. It is evident that, if the bank acted through a mistake of fact in making the acceptance, it should not be bound thereby, unless the other party suffered some loss on account of its act in making the acceptance.
In the case at bar no loss was suffered by the Bank of Pettigrew. It knew that Conneway had drawn the draft in its favor in payment of an antecedent indebtedness and that he had no funds in the City National Bank at that time with which to meet it. It also knew that he intended to go to the City National Bank at Port Smith by the 12th of November and make arrangements for the payment of the draft. Conneway was in the bank when the postcard copied in our statement of facts was received. The Citizens’ Bank of Pettigrew did not ask hi-m if he had made arrangements to pay the draft with the City National Bank, but credited his account with the amount of the draft. In doing so, the Bank of Pettigrew treated the postcard as an absolute acceptance instead of a card advising it that the draft had been received by the City National Bank. It is true that the card, on its face, is an absolute acceptance, but, according to the testimony of the cashier of the City National Bank, it was not intended as such, hut was only intended to be a notification that the bank had received the draft.
It is also true that the bookkeeper credited ¡the account of Conneway with the sum of $1,000, the face value of the draft, on the day that it was received, but, according to the testimony of the cashier of the bank, this was done through mistake. On account of the two previous days being holidays, an accumulation of business had come through the mails, and the routine work of the bank was being done hastily on Tuesday, which was the day the draft was received and on which the transactions with regard to it were had by the City National Bank. As soon as the cashier discovered that this had been done, he examined Conneway’s account to see if he had any funds on deposit with which to pay the draft. Finding that he had none, he directed the item to be charged off of the books of the bank and that the Bank of Pettigrew be notified that the draft was returned to it because the drawer had no funds with which to pay it. This was done during banking hours on the day of the 13th of November, the day it,was credited, although the letter notifying the Citizens ’ Bank of Pettigrew that the draft was returned for nonpayment for want of funds was dated November 15. The cashier of the City National Bank, however, testified that was due to a mistake of the stenographer, and that the letter was directed to be. sent on the 13th, although the mistake was discovered too late for it to be mailed on the train going to Pettigrew on that day.
The City National Bank acted in the dual capacity of collecting agent of the Citizens’ Bank of Pettigrew, the holder of the draft, and as drawee. In such case there can be no acceptance by delivery until the draft passes through the books of the bank, charging the account of the drawer and crediting the account of the remitting bank, and making a complete transaction. First National Bank of Murfreesboro v. First National Bank of Nashville, 154 S. W. 965.
Under the circumstances of this case, it is evident that the City National Bank charged the amount of the draft to the account of Conneway in the hurry of the day, which was caused by the accumulation of business on account of the two previous days being holidays, and that there was no intention to .treat the transaction as completed until the close of the day’s business.
The postal card was not intended to be an absolute acceptance, but was only intended by the bank to be a card advising the Citizens’ Bank of Pettigrew that the draft had been received. No loss was. suffered by the Citizens’ Bank of Pettigrew on account of the transaction.
The result of our views is that the City National ¡Bank never intended to treat the transaction as a completed one and that it had a right to correct the mistake when it discovered, on the same day, that Conneway had no funds in the bank with which to meet the draft. The Citizens’ Bank of Pettigrew, having been promptly notified and having suffered no loss on account of the mistake, is in no position to claim that the facts of this case did not bring it within the exception that the acceptance was made under a mistake of fact. It follows that the decree must be reversed, and, inasmuch as the case of the plaintiff seems to have been fully developed, its cause of action will be dismissed here.
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Hart, J.,
(after stating the facts). The record shows that the forty-acre tract of land in controversy in Benton County, Arkansas, was the homestead of Clarence C. Courton and Izora B. Courton, his wife. Izora B. Courton first signed a deed conveying said land to her husband, and an Oklahoma form, which neither mentioned her homestead nor her dower, was used. Subsequently it was decided to erase the name of Clarence C. Courton as grantee in the deed and to leave the name of the grantee blank. When Clarence C. Courton made the trade with Clyde Y. Seale and delivered the deed to him, the deed was blank as to the grantee. This court has held that an instrument purporting to be a deed, in .which a blank has been left for the name of the grantee, is not operative, and that written authority to fill in the blank is necessary.
In Adamson v. Hartman, 40 Ark. 58, the court said: “An instrument of writing, purporting to be a convey anee, signed and acknowledged by the grantor, and otherwise in good form, does not become his deed until the name of■ the grantee and the amount of the ■ consideration are inserted therein. And an agent cannot fill such blanks in the grantor’s absence, unless his authority is in writing. ’ ’
Numerous cases are cited in support of the decision, and, whatever may be the rule elsewhere, it is settled in this State that the instrument in question could not become the deed of the grantor unless the name of a grantee was inserted, and that that act could not be performed by an agent, in the absence of the principal, unless his authority was in writing. It is not claimed that Clarence C. Courton had any written authority to insert the name of Clyde V. Seale as grantee.
The chancellor found that the forty-acre tract of land in question was the homestead of Clarence ,C. Courton and his wife. His finding in this behalf is supported by the evidence in the record. Under our statute, Clarence C. Courton could not convey the homestead without his wife joining in the deed. Pipkin v. Williams, 57 Ark. 242, 21 S. W. 433; Ferrell v. Wood, 149 Ark. 376, 232 S. W. 577, 16 A. L. R. 1033; and Miles v. Jerry, 158 Ark. 314, 250 S. W. 34.
It follows that the decree of the chancellor was correct, and it will be affirmed.
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Smith, J.
Appellant broug'ht suit on what it alleged was a 'judgment which it had recovered in a court of record in the State of Iowa against appellee. The answer denied that appellant had recovered a judgment, and, by way of counterclaim, alleg’ed that appellee had shipped to appellant a car of sweet potatoes, for which appellant had agreed to pay the sum of $509.12; that the car of potatoes was delivered to and accepted by appellant, who failed to pay for them. Judgment was prayed for the value of the car of potatoes. The trial resulted in a verdict for appellee for the amount of his counterclaim, and from the judgment pronounced thereon is this appeal.
When the transcript of the judgment of the Iowa court was offered in evidence, appellee • objected to its introduction upon the ground that it was not properly authenticated, and this objection was sustained. The validity of this objection is conceded, but, when the objection was made, counsel for appellant asked for a continuance upon the ground of surprise, the surprise being that he had an agreement with counsel for appellee that the sufficiency of the transcript would not be questioned, and that the only question that would-be controverted with reference thereto would be the authority under which appellee’s appearance had been entered in the original suit in Iowa. Appellant’s attorney supported this statement by an affidavit, which appears in the record. No denial of this agreement appears to have been made, and the motion for continuance was overruled upon the ground that a continuance had been had at the former term of the court and an opportunity had been thus afforded to perfect the transcript of the judgment. It was stated, and not questioned, that the continuance was granted on the motion of appellee.
The judgment should, of course, have been properly authenticated, but this was a defect which might have been waived, and which, according to the undenied affidavit of appellant’s counsel, was waived.
The deposition of an attorney in Iowa was taken, and this attorney testified that he had entered appellee’s appearance in the court there, ancLhad litigated there the question of the car of potatoes,for which judgment was asked in the cross-complaint filed in the court below. This deposition was excluded upon the ground that it was immaterial, in the absence of a showing that a judgment had been recovered.
In the-absence of any denial that there was an agreement that- no question would be raised touching the sufficiency of the authentication of the judgment sued on, we must accept that statement as true, and, if it is true, the continuance should have been granted on the ground of surprise, and, for the error in refusing to grant the continuance, the judgment of the court below must be reversed, and it is so ordered.
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McCulloch, C. J.
Appellant is the owner of certain lands situated in Conway County (exclusive of the standing timber thereon), and appellee, Pioneer Cooperage Company, is the owner of the timber, both having purchased from the same grantor, who was the owner of the unseparated land and timber. Each of the parties purchased from Morgan, the owner, after the taxes for 1924 had been duly assessed and extended on the tax-books for payment of State and county taxes and road improvement taxes, but before same became payable, on the first Monday of January, 1925. There was no separate assessment of the timber for that year, and the taxes on the land, including the timber, were paid as assessed by appellant, who instituted this action in the chancery court of Conway County against said appellee, alleging that the timber is far more valuable than the land, and praying for an accounting of the proportionate amount of taxes on the timber, and that decree be rendered against appellee in favor of appellant for recovery of the amount of such proportionate part of the taxes. The court sustained a demurrer to the cbmplaint, and, upon dismissal of the complaint, appellant has duly prosecuted this appeal.
This action is predicated upon the statute which provides for separate assessment of land and timber when owned by different persons. The statute reads as follows:
‘ ‘ Section 9940. When the timber rights in any land shall, by conveyance or otherwise, be held by one or more persons, firm or corporation, and the fee simple in the land by one or more persons, firm or corporation, it shall be the duty of the assessor, when advised of the fact, either by personal notice or by recording of the deeds in the office of the recorder of the county, to assess the timber rights in said lands separate from, the soil and to the owner of said timber right, and said soil shall be assessed to the owner thereof. And in such ease a sale of the timber rights for nonpayment of taxes shall not affect the title to the soil itself, nor shall a sale of the latter for nonpayment of taxes affect the title to the timber rights.
“Section 9941. It shall be the duty of the assessor to assess said timber rights with a description of the land on the real estate taxbooks; and said assessment shall be marked ‘timber,’ and, upon the nonpayment of taxes so assessed against said timber, the same shall be advertised with a description of the land as ‘timber,’ giving the character or kind of such timber, in some newspaper, as now provided by law for nonpayment of taxes on land, and said timber shall be sold as now provided by law for the sale of delinquent lands.” Crawford & Moses’ Digest.
We are of the opinion that the court was correct in sustaining the demurrer, for the remedy sought by appellant is one purely of statutory creation, if it exists at all, and we do not find that the statutes referred to provide for recovery under circumstances set forth in the complaint. In other words, the statute does not authorize separate assessment of standing timber and collection of taxes thereon except in cases where “the timber rights in any land shall, by conveyance or otherwise, be held by one or more persons, firm or corporation and the fee simple in the land by one or more persons, firm or corporation * *
According to the allegations of the complaint, the joint assessment against the land and timber was correct, for there had not been a separation of the timber rights from the ownership of the soil. The situation did not come within the operation of the statute, and appellant is without remedy to recover taxes which he voluntarily paid on the land and timber. The appellant would have no remedy independent of the statute, and, since we find his case does not fall within the statute, he is without remedy.
Affirmed.
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Hart, C. J.,
(after stating the facts). Counsel for the defendant relies for a reversal of the judgment on the ground that, under the by-laws of the supreme colony, the benefit certificate sued on had lapsed at the time of the death of Henry Thompson, and that there was no liability under the terms of the benefit certificate. In this contention we think counsel is correct. On the 9th day of August, 1924, the supreme colony adopted the rules and by-laws of which § 6, copied in our statement of facts, is a part. The benefit certificate sued on was issued by the supreme colony, and had lapsed for the nonpayment of the assessment for the month of September, 1924. It is true that the insured paid the assessment for September on October 7, 1924, and at the same time paid his assessment for the month of October. It will be noted, however, that, under the provisions of § 6, when a member is in .arrears for one month’s dues he is automatically suspended. Under the provisions of that section the member was entitled to pay up his arrears on the 7th day of October, 1924, and the record shows that he did so. The section further provides that, should the dues be paid, neither the insured nor the beneficiaries shall be entitled to any benefits if sickness or death occurs before the expiration of thirty days thereafter; and also the subsequent payment of such arrears shall not entitle the insured, or beneficiary, to any benefits for sickness or death occurring during the period of such suspension. The record shows that the plaintiff died on October 16, 1924, which was within the thirty-day period.
It is a settled rule of this court that the constitution and by-laws of a- fraternal order become a part of the contract insuring its members, and this is especially so where the certificate, as in the case at bar, provides that the constitution and by-laws of the order shall be a part of the contract of insurance. W. O. W. v. Hall, 104 Ark. 538, 148 S. W. 526; Supreme Royal Circle v. Morrison, 105 Ark. 140, 150 S. W. 561; and Mutual Aid Union v. Lovitt, 170 Ark. 745, 281 S. W. 354.
The benefit certificate in the case at bar especially provides that it is to be governed by the constitution and by-laws of the supreme colony. Again, it provides that the constitution and by-laws of the supreme colony shall be read together as a part of the contract. It is plain, when this is done, that the contract of insurance was not in force when the insured died. He had been automatically suspended for nonpayment of dues, and the thirty days during which, under the by-laws, he was not entitled to any benefit for sickness or death, had not expired when he died.
Counsel for the plaintiff, however, seeks to avoid the force of § 6 by invoking the provisions of § 3, which is also copied in our statement of facts. The record shows that § 3 was adopted as a by-law of the local lodge. As such, it could only govern the rules under which persons were entitled to membership in that lodge. The benefit certificate especially provides that the constitution and by-laws of the supreme colony shall be a part of the contract of insurance. As we have already seen, when the contract of insurance of the benefit certifcate and the constitution and by-laws of the supreme colony are read together, the insured was suspended at the time of his death and was not entitled to any benefit for sickness or death at that time. Besides, there is nothing- in the benefit certificate which makes the rules and by-laws of a subordinate lodge part of the contract of insurance. .
The result.of our views is that the circuit court should have directed a verdict for the defendant, and erred in not doing so. Therefore the judgment will be reversed, and, inasmuch as the plaintiff’s case has been fully developed, her cause of action will be dismissed here.
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McHaney, J.
On the 27th day of January, 1925, the appellant filed a petition with the Arkansas Railroad Commission for permission to operate motor busses for the carriage of passengers for hire from Tie Plant, a settlement located about a mile east of the city of North Little Rock, through said city over a designated route to Main and Markham Streets in the city of Little Rock, and over the Main Street Bridge between the two cities. The Broadway-Main Street Bridge District, BenD. Brickhouse as mayor of the city of Little Rock, and the Intercity Terminal Railway Company, intervened and filed a joint response to the petition, protesting against the granting of the permit, setting up four reasons for the protest, one of which in substance is as follows: (3). That petitioner had not obtained a license or franchise from the Broadway-Main Street Bridge District to operate busses over said Main Street bridge, which district, by virtue of the act creating it, had the exclusive authority to grant such a franchise, to regulate the traffic thereon, and to fix the rates and charges therefor; that it would be improper ■for the Railroad Commission to grant the permit to petitioner before she obtained such franchise from the bridge district.
The Railroad Commission, after hearing the evidence, entered an -order denying the petition, and an appeal was taken to the circuit court of Pulaski County, where the case was heard on February 13, 1926, upon the record made before the Railroad Commission, and the court found that it had no jurisdiction of the Broadway-Main Street Bridge District for the purpose of reviewing the action of said district, and that the order of the Railroad Commission denying the petition of plaintiff should be affirmed upon the whole record. From the judgment of the circuit court the petitioner has appealed to this court.
The act creating the Broadway-Main Street Bridge District was passed in 1919 (Sp. Acts 1919, page 74), and by § 22 it is provided: ‘ ‘ The commissioners of said district, so long as they are in charge of said bridges, or the county court after the bridges shall have been turned over to it, may permit the use of said bridges by streetcar lines, interurban lines, and other public utilities, exacting therefor a reasonable compensation.”
Section 23 provides that: ‘ ‘When said bridges have been completely paid for, they shall be turned over to the county of Pulaski, and from thenceforth shall be the property of said county.”
Said act was amended in 1923, page 1648, to read as follows: ‘ ‘ Section 1. When said bridges have been completely paid for, including all bonds, or other evidences of indebtedness issued in payment or maintenance thereof, they shall be turned over to the county of Pulaski and from thenceforth shall be the property of said county. Until said bridges are turned over to the county, as herein provided for, the commissioners shall have the right to prescribe rates for the use of the bridges for private use ■by various public service corporations, and all fees and rentals received shall be used to pay off all outstanding bonds of the district and thereby reduce the tax of the property holders of the district.”
Section 2 of that act provides: “The board of commissioners of the Broadway-Main Street Bridge District is hereby authorized, empowered and directed to charge reasonable fees for the use of said bridges by any and all persons, firms or corporations, where said bridges are used to further their private interests, such as to support gas or water lines, electric light and power lines, telephone lines and cables, telegraph lines and cables, or where the same is used by street cars or motor busses; where passengers are carried for fare, the commissioners may charge a flat annual fee, or any other fee that they may deem wise and expedient. In case of street cars and motor busses for hire, the commission, if it deem best, may charge so much per passenger, and all funds derived from such charges shall be used in retiring the bonds of the district.”
Section 3 of the act provides: “The charges as prescribed by the board of commissioners for the use of the bridges, as hereinabove set forth, shall not be subject to the jurisdiction of the Arkansas Railroad Commission, and 'the decision of the board of commissioners on all rates or charges shall be subject to review by the courts.”
Under these provisions of the statute creating the district, and the act amendatory thereof, we hold that the board of commissioners of the Broadway-Main Street Bridge District had the power to regulate the operation of motor busses and street-car lines over and across said bridges, by providing for the operation of street-car lines over one of said bridges and motor busses over the other, and prohibiting either from interfering with the other by operating over the same bridge. Pursuant to such power, the board has granted a franchise over the Main Street bridge to the Intercity Terminal Railway Company, which company has built its double tracks over said bridge at a cost of $40,000 and is paying the bridge district for its franchise $60,000. The power to permit the operation of motor busses over the Broadway Bridge and to regulate their operation, and to fix a charge for "same, is given by the acts above referred to.
The Arkansas Railroad Commission had no authority over said bridges, neither did it have the authority to grant a permit to said bus line to operate over the streets, either of North Little Rock or of Little Rock. It follows that the judgment of the Pulaski Circuit Court is right, and it is therefore affirmed.
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Kirby, J.,
(after stating the facts). The great weight of the testimony shows that the sale of the property was effected by the owner upon negotiations begun by the representative of the purchaser; also it is true that appellee finally consented to a reduction of the price in an amount equal to the usual agent’s selling commission in order to make the sale; that appellee had not given any other agent than appellant, if its letters with his notations constituted an exclusive contract for selling, authority to make sale, and the court also found expressly that the appellee acted in good faith in making the sale himself, and its finding on contradictory testimony is conclusive.
Conceding that the letters between the parties, with the notations thereon, constituted an exclusive contract authorizing the sale of the 'property by appellant company, there was no time limit specified therein, nor can such contract he construed an exclusive one to make such sale, within a reasonable time, at the usual and customary commission, and could not deprive the owner of the right to make the sale without liability for payment of commission, while acting in good faith. In Harris & White v. Stone, 137 Ark. 23, this court said:
“In the present case the contract did not contain a time limit within which the agent might make a sale of the property, and there was an implied reservation of right of the owner to sell the land himself, free from any liability for commissions, provided he acted in good faith towards his agent. The contract, not specifying any exact period of time within which the agent was to have the exclusive right to sell, does not deprive the principal of the right to sell the land himself when he acts in good faith towards his agent.”
The giving exclusive authority under, the circumstances to appellant to sell, without a time limit as to when the sale should he completed, merely prevented the placing of the property for sale in the hands of other agents, hut not the sale of the property by the owner himself, while acting in good faith towards his agent.
The testimony amply sustains the findings and judgment, which is in all things affirmed.
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Annabelle Clinton Imber, Justice.
This is an interlocutory appeal. The appellants contend that the trial court erred when it denied their request for class certification of their tort action against the appellees. We affirm.
Jeanne Baker, Maria Valencia, Tina Thomas, and Mirtha Breslin (the “plaintiffs”) took, for weight-loss purposes, the prescription drugs fenfluramine, dexfenfluramine, and phentermine. The plaintiffs took different combinations of these diet drugs, in different quantities, and for different durations. In September of 1997, the diet drugs were removed from the market because it was discovered that they might cause valvular heart disease, pulmonary hypertension, and other health problems.
In 1998, the plaintiffs filed a class action against numerous manufacturers, supplies, and distributors (the “defendants”) of fenfluramine, dexfenfluramine, and phentermine. The plaintiffs later voluntarily dismissed their allegations regarding the use of phentermine. The complaint included numerous causes of action including negligence, products liability, failure to warn, and breach of express and implied warranties.* The plaintiffs proposed that the class be divided into a subclass of asymptomatic plaintiffs who need to undergo medical monitoring, and a subclass of plaintiffs who have serious physical injuries.
Soon thereafter, the plaintiffs filed a motion to certify the class action pursuant to Ark. R. Civ. P. 23. On October 26, 1998, the trial court denied the motion because the plaintiffs had failed to satisfy the predominance and superiority factors found in Ark. R. Civ. P. 23(b). In particular, the court ruled that a class action would not be the superior way to litigate this matter because the following individual issues predominated the common issues presented by this case: 1) the plaintiffs had different medical conditions and family histories at the time the diet drugs were prescribed; 2) the diet drugs were prescribed by different doctors who had different degrees of knowledge regarding the risks posed by the diet drugs; 3) the doctors told the plaintiffs different things about the risks posed by using the diet drugs; 4) the plaintiffs had different levels of knowledge, which they obtained from outside sources, about the risks posed by the use of the diet drugs; 5) the plaintiffs took different combinations of the three different diet drugs; 6) the plaintiffs took the diet drugs for different durations; 7) some plaintiffs have no physical injuries, while others have physical injuries but of different degrees and types; and 8) the plaintiffs have different damages in that some want medical monitoring while others request traditional damages such as medical expenses, pain and suffering, etcetera.
The issue on appeal is whether the trial court erred when it denied the plaintiffs’ request for class certification because the predominance and superiority requirements found in Ark. R. Civ. P. 23(b) had not been satisfied. Arkansas Rule of Civil Procedure 23(b) provides, in relevant part, that:
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
As we have said on several occasions, trial courts are given broad discretion in matters of class certification, and we will reverse the trial court’s ruling only when the appellant can demonstrate an abuse of that discretion. Seeco, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997); Mega Life & Health Ins. Co. v.Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997).
I. Predominance
First, we must decide if the trial court abused its discretion when it ruled that class certification was improper because the common questions of law or fact did not predominate over the questions affecting only individual members. In making this determination, we do not merely compare the number of individual versus common claims. Mega Life & Health Ins., supra. Instead, we must decide if the issues common to all plaintiffs “predominate over” the individual issues, which can be resolved during the decertified stage of a bifurcated proceeding. See Seeco, supra; Mega Life & Health Ins., supra.
For example, in Seeco, we held that the predominance factor was satisfied because the common issue of whether the defendant had engaged in a scheme to defraud the plaintiffs could be resolved in a class action before decertifying the case for resolution of the individual issues of reliance and diligence. Seeco, supra. Likewise, in Mega Life & Health Ins., we held that the predominance factor was satisfied because the common issues of what type of insurance policy was issued, and what type of notice was required prior to termination could be resolved in a class action before decertifying the case for resolution of the individual issues of reliance and damages. Mega Life & Health Ins., supra.
Mass-tort actions, however, present unique certification problems because they generally involve numerous individual issues as to the defendant’s conduct, causation, and damages. Courts, however, have recently distinguished between two different types of mass-tort actions: 1) mass-accident cases where injuries are caused by a single catastrophic event occurring at one time and place; and 2) toxic-tort or products-liability cases where the injuries are a result of a series of events occurring over a considerable length of time and under different circumstances. See James W. Moore, Moore’s Federal Practice § 23.47[4] (3d. ed. 1999); Herbert B. Newberg & Alba Conte, Newberg on Class Actions §§ 17.01 to 17.06 (3d ed. 1992); Charles Alan Wright et al., Federal Practice and Procedure § 1783 (2d ed. 1986). Due to the enormity and complexity of the individual issues presented by toxic-tort and products-liability cases, class certification is more common in mass-accident cases than in toxic-tort or products-liability case. See James W. Moore, supra § 23.47[4] (citing numerous products-liability and toxic-tort cases where class certification was denied); Herbert B. Newberg & Alba Conte, supra § 17.22 (citing several products-liability cases involving tetracycline, bendectin, and DES where class certification was denied). In this regard, the Sixth Circuit has admonished that a court should “question the appropriateness of a class action” where “no one set of operative facts establishes liability, no single proximate cause equally applies to each potential class member and each defendant, and the individual issues outnumber common issues.” Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988).
Likewise, we have been more inclined to approve class certification in mass-accident cases than in products-liability or toxic-tort cases. For example, we allowed class certification in the mass-accident case of Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991). In Summons, several thousand people were evacuated from their homes when a train owned by Missouri Pacific overturned and released chemicals into the area. Id. The plaintiffs alleged that Missouri Pacific was willfully and wantonly negligent and strictly liable for shipping ultra hazardous products. Id. We held that class certification was proper because the common issues of the defendant’s conduct, whether the chemicals were ultra hazardous, and causation predominated over and could be resolved prior to addressing the individual and less difficult issues of damages and injuries. Id.
In contrast, we concluded that class certification was improper in Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995). In Arthur, patients who had an artificial substance called “Orthoblock” implanted in their spines filed a class-action lawsuit, which included a products-liability claim against Calcitek, the manufacturer of Orthoblock. Id. We held that class certification was improper because the individual issues of informed consent, causation, degree and types of injury, and damages predominated over the common issues. Id. In particular, as to causation the individual plaintiffs would have had to prove that their prior medical condition or history was not the cause of the injury, that they would not have undergone the implantation if they had known of the risks, and that the actions of the intermediary doctors did not abate some or all of Calcitek’s liability. Id. Hence, the bifurcation approach could not be utilized because the defendant’s liability to each plaintiff would have to be established on a case-by-case basis. Id. In reaching this conclusion in Arthur, we relied upon products-liability cases from other jurisdictions where class certification was denied because the individual issues predominated over the common issues. See Raye v. Medtronic Corp., 696 F. Supp. 1273 (D. Minn. 1988) (holding that there were “not enough common questions of law or fact to justify use of the class mechanism” because issues of “causation, liability, and damages” would have to be separately litigated); Rose v. Medtronic, Inc., 166 Cal. Rept. 16 (Cal. Appl. 1980) (holding that class certification was improper because the claimants had “varying periods of use of the product, varying needs for its replacement, varying elements of causation, varying degrees of injury, and varying amounts of damages”).
Likewise, in Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), the United States Supreme Court recently denied class certification in a products-liability action. In Amchem, the plaintiffs filed a class action on behalf of possibly millions of people who were exposed to asbestos. Id. The plaintiffs argued that class certification was proper because all members of the class had been exposed to asbestos products supplied by the defendants. Id. The Court responded as follows:
Even if Rule 23(a)’s commonality requirement may be satisfied by that shared experience, the predominance criterion is far more demanding. Given the greater number of questions peculiar to the several categories of class members, and to individuals within each category, and the significance of those uncommon questions, any overarching dispute about the health consequences of asbestos exposure cannot satisfy the Rule 23(b)(3) predominance standard.
Id. (emphasis added). The Court further opined that class certification was improper because the class members:
were exposed to different asbestos-containing products, for different amounts of time, in different ways, and over different periods. Some class members suffer no physical injury or have only asymptomatic pleural changes, while others suffer from lung cancer, disabling asbestosis, or from mesothelioma .... Each has a different history of cigarette smoking, a factor that complicates the causation inquiry.
Id. (quoting the Third Circuit’s earlier decision in this same case, Georgine v. Amchem Products, Inc., 83 F.3d 610 (3rd Cir. 1996)) (emphasis added). Finally, the Court called for caution in the certification of mass-tort cases when “individual stakes are high and disparities among class members great.” Id.
We, however, are not holding that class certification should be denied in all products-liability or toxic-tort cases. Instead, we hold that class certification is improper in this case because the numerous and complex individual issues predominate over the individual issues. As the trial court correctly acknowledged, and similar to Arthur and Amchem Products, this case presents numerous individual issues that go to the heart of the defendants’ conduct, causation, injury, and damages such that the defendants’ liability as to each plaintiff will have to be resolved on a case-by-case basis. In fact, as in Amchem Products, the only thing the plaintiffs have in common is that they all took one or a combination of the diet dugs listed in the complaint.
Nor can this case be bifurcated into certified and decertified proceedings as was done in Seeco, supra, and Mega Life & Health Ins., supra, because there are few global or common issues that can be resolved in the certified stage. For example, the appellants argue that issues concerning the defendants’ conduct, such as whether the diet drugs were defective products and whether the defendants adequately warned of the risks associated with taking the diet drugs, could be resolved on a class-wide basis. We disagree because even the resolution of these seemingly common issues will depend upon individual differences among the plaintiffs such as when they took the drug, the duration of use, the quantity taken, the combination used, their medical history and condition at the time of use, and the state of the art at the time the drugs were marketed. Likewise, causation cannot be resolved on a class-wide basis because there are numerous individual issues such as whether the plaintiffs assumed any risk, and what the doctors told the plaintiffs prior to use. Finally, damages cannot be resolved in a class action because some plaintiffs are asymptomatic while others have manifested physical injuries.
We have only listed some of the abundant individual issues that make certification at any stage of this proceeding improper. Accordingly, we have no hesitancy in holding that the trial court did not abuse its discretion when it ruled that the predominance factor of Rule 23(b) had not been satisfied.
II. Superiority
Because we affirm the trial court’s ruling that the predominance requirement has not been satisfied, we do not need to address the superiority requirement. Nevertheless, we have held that the superiority requirement is satisfied if class certification is the more “efficient” way of handling the case, and it is fair to both sides. See Seeco, supra; Mega Life & Health Ins., supra. For the reasons stated above, a class action would not be the most efficient way of handling this case because the individual issues are so pervasive that even the bifurcation approach is not feasible.
The appellants also alleged that a class action would be more “fair” to the asymptomatic plaintiffs because the damages recoverable for medical monitoring would not justify the cost of bringing individual lawsuits. This argument is flawed for two rea sons. First, the asymptomatic plaintiffs also asked for punitive damages, which could justify the cost of individual litigation. Second, fairness to the plaintiffs alone cannot compensate for the lack of predominance. Accordingly, we also affirm the trial court’s ruling that the superiority requirement has not been satisfied.
Because we conclude that the trial court did not abuse its discretion when it ruled that the predominance and superiority requirements of Rule 23(b) had not been satisfied, we affirm the denial of the petition for class certification.
Affirmed.
The defendants involved in this appeal are Wyeth-Ayerst Laboratories Division, a Division of American Home Products Corporation; American Home Products Corporation; Interneuron Pharmaceuticals, Incorporated; and A.H. Robins Company, Incorporated.
The complaint originally contained a sixth claim for medical monitoring. Upon the defendants’ motion to dismiss, the plaintiffs agreed to treat medical monitoring as a type of damages instead of a separate cause of action.
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Per Curiam.
Act 960 of 1999 provides that the Supreme Court shall determine the amount of the fee to be paid by attorneys for enrolling and recording their licenses and fiirnishing them certified transcripts. These fees are deposited in the Supreme Court Library Fund for the purpose of maintaining and improving the Supreme Court Library.
Historically, this fee was set by the General Assembly, but with the passage of the reference Act, it is now our responsibility. Accordingly, effective January 1, 2000, the fee for attorney enrollment is set at $25.00.
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W. H. "Dub"Arnold, Chief Justice.
This is a case involving the interpretation of Act 536 of 1991, codified as Ark. Code Ann. § 26-74-212 (Repl. 1997), Ordinance No. 16,496 of the City of Little Rock, and Ordinance No. 95-OR-42 of Pulaski County, Arkansas. The relevant facts are not in dispute.
In 1982, by Ordinance NO. 82-OR-12, Pulaski County levied a one percent local sales tax, pursuant to the authority granted by the legislature through Act 991 of 1981, which was amended by Act 26, of 1991. This new provision was codified as Ark. Code Ann. § 26-74-212 and included a portion commonly referred to as the “out-of-county delivery exemption.” Under this provision, a sale by a business in Pulaski County would not have been subject to the Pulaski County sales tax if the goods had been sold to a nonresident of Pulaski County and delivered outside of the county.
In 1991, however, Act 536 changed the manner in which local taxes would be collected, by amending Ark. Code Ann. § 26-74-212 to narrow the “out-of-county delivery exemption” on all but a few sales, those being sales through meter and by route delivery, none of which are applicable in this case. Following this amendment, if the sale was made to a resident, with delivery in a county or city that does not impose a city or county sales tax, the tax would then not be applicable.
In 1993, the City of Little Rock passed Ordinance No. 16,496 to levy a one-half percent sales and use tax, pursuant to Ark. Code Ann. § 26-75-201 (Repl. 1992) et seq. The ordinance provided that the tax would be levied on the receipts from the sale at retail within the city of all items which are subject to state sales tax. In 1995, Pulaski County levied a one-year, one percent sales and use tax by Ordinance 95-OR-42; the tax was levied on sales at retad within the county of all items which are subject to state sales and was effective from October 1, 1995, through September 30, 1996.
Appellant Western Foods sold tangible personal property to customers including appellant Beverly Enterprises. The goods sold to appellant Beverly Enterprises were delivered by appellant Western Foods to locations outside of Pulaski County, Arkansas. According to the testimony of Ed Fason, Vice President and General Manager of Western Foods, a Western Foods sales person would take an order and input the order in his computer, which would be downloaded to Western Foods located in Little Rock. Western Foods would then fill the order and deliver the order by truck to the customer.
The appellants paid taxes to the State in the amount of $56,456.89 on products delivered by Western Foods to Beverly Enterprises located outside Pulaski County, Arkansas, from January 1995 through December 1995. Appellants requested a refund of $56,456.89 for both Pulaski County sales taxes and the City of Litde Rock sales taxes allegedly illegally levied by appellees. On March 27, 1996, the Commissioner of Revenue denied appellants’ request for a refund.
On October 5, 1995, the Central Arkansas Office of Field Audit completed a gross-receipts tax audit of Western Foods and gave notice to Western of a proposed assessment of $196,169.06 for the period of time from December 1991 to November 1994 for goods sold to Beverly Enterprises. On November 13, 1995, Western Foods protested the assessment with the request that the matter be heard by the Office of Hearings and Appeals.
On May 15, 1995, an administrative hearing was held in Little Rock. The administrative law judge ruled against Western Foods on all issues. Western Foods appealed, and the Commissioner ruled against Western Foods on October 25, 1996.
On January 21, 1997, pursuant to Ark. Code Ann. § 26-18-406(a)(1) (Repl. 1992), and within thirty days from the date of the final assessment, Western Foods paid the assessed amount of $196,169.06 under protest. Western Foods and Beverly Enterprises then brought suit against appellees in Pulaski County Chancery Court on May 8, 1996, alleging that the State was illegally exacting the Pulaski County and Little Rock sales taxes. Appellants sought a refund of the taxes paid, injunctive relief, and attorneys’ fees.
On February 16, 1997, appellants moved to certify the cause as a class action, seeking to include all similarly situated taxpayers in Pulaski County. On May 2, 1997, the chancery court issued an order declaring that the tax was not an illegal exaction. On May 30, 1997, appellants then filed a motion for reconsideration and clarification regarding the illegal-exaction claims and the question of class certification. Also on May 30, 1997, appellants filed a second amended complaint, again requesting certification as a class action, requesting a refund of the $56,456.89 and reimbursement of the $189,198.06, and claiming violations of their civil rights.
On February 4, 1998, the chancellor issued an order dismissing the complaint with prejudice. After entry of this final order, appellants filed a timely notice of appeal. Appellants assert the following on appeal:
1) That the State of Arkansas has illegally exacted and is continuing to illegally exact the Pulaski County and City of Little Rock retail sales taxes from sales outside the county and city; the Arkansas tax scheme violates Arkansas Constitution Article 16, Section 1, and Amendment 62; and
2) The Chancellor erred in failing to certify this cause as a class action.
We hold that the taxes challenged do not constitute an illegal exaction and hereby affirm the trial court.
It is well settled that chancery cases are reviewed de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id.; RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). In the instant case, the relevant facts were primarily stipulated by the parties and are not in dispute.
The record is clear that appellants do not dispute the power of the Litde Rock and Pulaski County taxing authorities to impose a sales tax on sales of goods within the city or county. The appellants claim, however, that the State of Arkansas illegally exacted and is continuing to attempt to illegally exact the Pulaski County and Little Rock retail sales tax from sales made outside the county and city. Appellants allege that the Arkansas tax scheme violates Arkansas Constitution Article 16, § 1, and Amendment 62: They further assert that without approval at a special election, neither Pulaski County, the City of Little Rock, nor the State of Arkansas can exact a Pulaski County or Little Rock sales tax on sales occurring outside the City of Little Rock or the County of Pulaski.
We hold that appellants have faded to plead an illegal-exaction claim. This Court has held that two types of illegal-exaction cases can arise under Article 16, § 13, of the Arkansas Constitution. The first type is a “public funds” case, in which the plaintiff contends that public funds generated from tax dollars are being misapplied or illegally spent. The second type is an “illegal tax” case, in which the plaintiff asserts that the tax itself is illegal or contrary to a constitutional or statutory provision. See Ghegan & Ghegan, Inc. v. Weiss, 338 Ark. 9, 991 S.W.2d 536 (1999); Barker v. Frank, 327 Ark. 589, 939 S.W.2d 937; Pledger v. Featherlite Precast Corp., 308 Ark. 124, 823 S.W.2d 852 (1992).
The instant case does not fall into either category. Appellants did not allege in their complaint that funds generated by the Little Rock and Pulaski County sales taxes had been misapplied or illegally spent. Moreover, they did not allege that the local tax ordinances are invalid; and, Act 536 of 1991 cannot be challenged as an illegal exaction because it is not a tax-levying statute.
Appellants contend, however, that this action is in direct conflict with the Arkansas constitutional provisions requiring voter approval prior to municipality or county taxation. The primary issue in this case is whether the State of Arkansas can collect the Pulaski County and Little Rock local sales taxes on sales of tangible personal property to a business located outside of Pulaski County without providing the citizens of Pulaski County or Little Rock an opportunity to vote on whether the local tax would apply to out-of-county or out-of-city deliveries.
In 1981, the General Assembly gave counties and cities the authority to implement a sales tax that included the out-of-county exemption. In 1982, the citizens of Pulaski County voted to implement the tax. In 1991, the General Assembly narrowed, by amendment, the out-of-county exemption for most sales. Appellants contend that since the citizens of Pulaski County have never voted to adopt the amended tax, narrowing the out-of-county exemption, then the county and city cannot begin charging the tax on out-of-county purchases and deliveries.
Appellants’ argument is without merit. First, the citizens of Pulaski County and the City of Little Rock did vote on the sales tax. The legislature set the parameters of the tax and has the authority to modify the tax at any time. Municipalities have only those taxing powers delegated by the General Assembly. See Barnhart v. City of Fayetteville, 321 Ark. 197, 900 S.W.2d 539 (1995). No new tax is being implemented by amending the out-of-county exemption; rather, only the exemption itself is being narrowed.
The General Assembly has the authority to pass a statewide sales tax. It further has the authority to amend the type of exemption found here in a sales tax, without first requiring the municipalities to hold another election to determine if voters agree with the amendment. The General Assembly has delegated the power to levy sales and use taxes to- cities and counties but has not delegated the power to determine which transactions are subject to the tax, who collects the tax, when the tax is due, interest and penalties applicable to delinquent taxes, and other such items.
Further, suits to determine whether the taxpayer transaction falls within an exemption created by statute do not come within the Article 16, § 13, exaction section. We have held that a flaw in the assessment or collection procedure, no matter how serious from the taxpayer’s point of view, does not make the exaction itself illegal. See Pledger v. Featherlite Precast Corp., supra.
The State sets the parameters of the tax and the only decision that a city or county can make is whether to levy the tax. The General Assembly was careful to require that the tax may only be collected from a customer located in another county or city which also has a sales tax. If appellant Beverly Enterprises was located in a county that did not have a sales tax, then the out-of-county exemption would then apply.
Appellants rely on Barnhart, supra, for the proposition that the taxation upon them from the City of Little Rock and Pulaski County is an illegal exaction. The facts in Barnhart, however, are distinguishable from the case at bar. In Barnhart, the City of Fayetteville imposed a sanitation charge of $2.02 on each resident to pay a bonded indebtedness owed by the Northwest Resource Recovery Authority. This Court set aside the sanitation charge, holding that it was a tax that had not been voted upon or approved by the residents of the City of Fayetteville.
Unlike the Barnhart case, in the instant case, the citizens of both Pulaski County and the City of Little Rock had previously voted to levy a sales tax which included the out-of-county delivery exemption. The General Assembly, in its authority as the legislative body that establishes the parameters of a tax, elected to withdraw the out-of-county delivery exemption in 1991. The difference between Barnhart and the facts present here is that the citizens of the City of Fayetteville did not vote on the tax, whereas the citizens of Pulaski County and the City of Litde Rock did vote for the sales and use tax. The legislature later elected to change only the parameters of the tax by narrowing the out-of-county delivery exemption.
Appellants contend that collection of the city and county sales taxes without voter approval is in direct conflict with Arkansas constitutional provisions, citing Article 16, § 1, and Amendment 62. These provisions, however, prohibit the issuance of bonds by a city or county without an election. None of the ordinances challenged in this case were tied to the repayment of bonds. Accordingly, appellants’ argument would have to be based on the requirement of a local election found in Ark. Code Ann. §26-74-207 (Repl. 1997) (counties) and § 26-75-208 (Repl. 1997) (cities), and the question then becomes one of statutory construction.
These provisions require voter approval of local tax ordinances and were followed in this case. They do not require a subsequent election any time the General Assembly modifies an exemption. Therefore, it was not necessary for the citizens of Pulaski County or the City of Little Rock to vote on whether their sales tax applies to sales to out-of-county customers because the General Assembly, composed of representatives from throughout the State, made the decision that sales taxes are applicable to sales made to customers outside of the taxing municipality.
Appellants further assert that this Court’s decision in Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998), requires the Court to reconsider the constitutionality of the imposition of a tax when the full nature of the tax is not made known to the electorate when they vote to accept the tax. This ballot title argument was never raised below, and may not be addressed for the first time on appeal. Appellants never challenged the constitutionality of any ordinance or Act 536 of 1991; in fact, they admitted in the trial court that the ordinances were valid, and the validity of Act 536 of 1991 was never challenged below, only its effect.
Notwithstanding appellants’ failure to preserve the argument for appeal, the Daniel case offers no support to appellants’ argument. The facts in Daniel are that the White County local sales and use tax ballot reflected five specific county uses for the tax. The one percent tax was collected by the Arkansas Department of Finance and Administration and remitted to the State Treasurer, who divided the proceeds among White County and the cities within the county on a per capita basis, as required by state law. The county’s share of the tax proceeds was used for the specified county projects. The tax was challenged as an illegal exaction based on Ark. Const., Art. 16, § 11, which provides, in part, that “no moneys arising from a tax levied for one purpose shall be used for any other purpose.” Because the county ordinances and the ballot only listed the specific county projects and did not note that a portion of the tax would go to the cities, the distribution of a portion of the tax to the cities was an illegal use of the tax.
Appellants seem to read Daniel to require an ordinance or ballot to include not only the purpose of the tax proceeds and the particular tax being levied, but a description of taxable and exempt transactions, as well. That is not the law. In Daniel, we cited our holding in the case of Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574 (1997):
When a tax is enacted by the General Assembly or approved by a vote of the people without the statement of a purpose, the resulting revenues may be used for general purposes. We fail to see how the voting public could be misled on this point. It is only when a diversion of tax revenues occurs from a specific purpose that has been authorized to an unauthorized purpose that an illegal exaction occurs.
328 Ark. at 305, 943 S.W.2d at 579 (emphasis added). Id. at 499.
In the instant case, the ordinances state that the sales tax shall apply to sales of items and services. It would be impossible to enumerate all taxable transactions and exemptions which would apply. State law clearly provides that items which are subject to state sales tax are subject to local tax. State law clearly enumerates various exemptions and describes how the tax is to be collected and enforced. Accepting appellants’ argument would require every ordinance or ballot to provide voters with the excruciating details of local tax application, enforcement, and collection.
Appellants focus on the need for voters to have been informed that there would be no out-of-county or city exemption as a result of Act 536. However, even if the ballot had contained such information, voters would not have been able to claim the former exemption in the first place, unless they were selling to out-of-county buyers; and, the narrowing of the exemption only served to increase local sales tax revenues. Appellants have clearly not established that any of the local taxes at issue constitute illegal exactions. They did not challenge the misappropriation of the tax monies in question, nor did they challenge the underlying tax itself, as required for an illegal exaction to arise. Pledger v. Featherlite Precast Corp., supra.
For all of the foregoing reasons, we hold that Act 536 of 1991 and the tax ordinances of Pulaski County and the City of Little Rock are valid and do not amount to an illegal exaction; we hereby affirm the trial court. Having found no illegal exaction, we therefore need not address appellants’ second point on appeal regarding the certification of this case as a class action.
Affirmed.
Special Associate Justice John Watkins joining.
Brown, J., not participating.
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Tom Glaze, Justice.
On April 15, 1999, the Arkansas Supreme Court Committee on Professional Conduct initiated this action by filing its petition requesting an order requiring Timothy D. Williams to show cause why he should not be held in contempt for violating Sections 7G(1), 7G(4), and 7G(6) of the Procedures of the Arkansas Supreme Court Regulating Conduct of Attorneys at Law. The Committee subsequently filed amended petitions on April 21 and June 29, 1999.
In response to the Committee’s initial petition, we issued a per curiam on May 20, 1999, ordering Mr. Williams to appear and show cause why he should not be held in contempt as requested by the Committee. He appeared before us on June 24, 1999, and entered a plea of not guilty. We appointed attorney Scott Stafford as the court’s master, who was directed to conduct a hearing to permit the Committee and Mr. Williams the opportu nity to present their respective cases, which was done on July 7, 1999. After hearing the Committee’s and Mr. Williams’s stipulations, witnesses, and arguments, the master filed his report with our court on July 13, 1999.
This contempt action emanated from the Committee’s earlier proceedings, wherein it considered the complaint of Mrs. Bertha Henry that Mr. Williams had violated Rules 1.16(d), 3.4(d), and 8.4(d) of the Model Rules of Professional Conduct. Mrs. Henry employed Mr. Williams to establish a guardianship of a relative of Henry’s. However, Mrs. Henry terminated Mr. Williams’s services within less than one month, but when she requested a refund, Mr. Williams failed to give her one; nor did he give her an accounting of the fee he was paid. As a result, Mrs. Henry filed a lawsuit against Mr. Williams for the fee, and she also filed a complaint with the Committee. Mrs. Henry obtained a default judgment against Mr. Williams, which he never challenged, appealed, or satisfied. The Committee determined Mr. Williams violated the above Model Rules by failing (1) to return the unearned portion of Mrs. Henry’s fee; (2) to respond to the Committee’s and trial court’s orders seeking and directing discovery requests; (3) to provide an accounting to Mrs. Henry; or (4) to satisfy Mrs. Henry’s judgment against Mr. Williams. These violations resulted in the Committee entering its findings and order on February 3, 1999, whereby it suspended Mr. Williams’s license for six months, fined him $250.00, and ordered him to make restitution of Mrs. Henry’s fee, both fine and fee to be remitted within twenty days —■ February 23, 1999.
Within twenty days of his suspension, Mr. Williams was obligated to perform the following procedures:
(1) Notify all of his clients in writing and any counsel of record in pending matters, that he had been suspended;
(2) In the absence of co-counsel, notify all clients to make arrangements for other representation, calling attention to any urgency in seeking the substitution of another attorney;
(3) Deliver to all clients being represented in pending matters any papers or property to which they are entitled, or notify them or co-counsel of a suitable time and place where the papers and other property may be obtained, calling attention to any urgency for obtaining the papers and other property;
(4) Refund any part of the fees paid in advance that had not been earned;
(5) File with the Court, agency, or tribunal before which any litigation is pending a copy of the notice to the opposing counsel, or adverse parties if no opposing counsel;
(6) Keep and maintain a record of the steps taken to accomplish the foregoing;
(7) File with the Supreme Court Clerk and Committee a list of all other state, federal, and administrative jurisdictions to which he is licensed or admitted to practice. Upon such filing, the Clerk shall notify those entitled of the suspension; and
(8) File an affidavit within thirty days of the suspension that he had complied with the provisions of the order and completely performed the foregoing or provide a full explanation of the reasons for his noncompliance. See Section 71(1)—(8) of the Procedures Regulating Professional Conduct (1999).
Mr. Williams’s failure to comply with the foregoing procedures subjected him to contempt of this court. Id. at 71(9). Contempt under the Procedures Regulating Professional Conduct includes the following:
(1) Willful disobedience of any Committee order, summons, or subpoena;
(2) The refusal to testify on matters not privileged by law;
(3) Knowingly to testify falsely before the Committee;
(4) Engaging in the practice of law during a period of suspension;
(5) Engaging in the practice of law after a disbarment or surrender of license; or
(6) Violation of the procedures by any person.
See Section 7G(l)-(6) (1999) (emphasis added). At the July 7 show-cause hearing, the master heard testimony and argument bearing on the Committee’s charges that, after suspension, Mr. Williams (1) wilfully disobeyed a Committee order, (2) engaged in the practice of law, and (3) failed to comply with the Committee’s procedures in violation of Section 7G(1), (4), and (6).
We appointed the master in this matter under Ark. Sup. Ct. R. 6(1), 6-5(a) (1999) and Ark. R. Civ. P. 53 (1999), and will accept the master’s findings of fact unless they are clearly erroneous. See Roberts v. Priest, 334 Ark. 503, 975 S.W.2d 850 (1998). A finding of fact is clearly erroneous, even if there is evidence to support it, when, based on the entire evidence, the court is left with the definite and firm conviction that the master has made a mistake. Id.
In considering the Committee’s charges, the master first heard and decided whether Williams had practiced law after he had been suspended, and the master found that he had. The Committee presented the testimony of Mrs. Lanelta Walker who averred that her initial meeting with Williams was on February 16, 1999, when she engaged him to obtain a divorce for her against her husband, James Walker. This February 16 meeting date would have been thirteen days after Williams had been suspended on February 3, 1999, and eight days after Williams received written notice of his suspension. While Mr. Williams questions Mrs. Walker’s accuracy as to the exact time when they first met, the master determined from Mrs. Walker’s and James Walker’s testimonies that a later, second meeting was held at which time Mrs. Walker brought Mr. Williams papers that Williams needed in order to prepare a property settlement agreement. In addition, the master, based on evidence before him, found Mrs. Walker had called Mr. Williams several times to determine if her divorce action had been filed. She said that he assured her the divorce suit would be filed “by the end of the week.” The master further found that Mr. Williams prepared the parties’ agreement and dated it March 4, 1999. James Walker testified he went to Mr. Williams’s office on March 4, which was the date he signed the agreement. Although Mr. Williams contended that he had told Mrs. Walker that he would not file her divorce until he was paid and that he denied ever scheduling a meeting to have James Walker sign the parties’ settlement agreement, the master obviously discounted Mr. Williams’s testimony, finding instead that Mr. Williams had continued his representation of Mrs. Walker after Mr. Williams’s suspension. The master concluded, and the record supports the finding, that Mrs. Walker first learned of Mr. Williams’s suspension from an article which appeared in the March 11, 1999 newspaper issue of the Log Cabin Democrat. In sum, we hold the evidence fairly supports the master’s finding on this point, and in so holding, conclude it is contemptuous conduct which falls within Section 7G(4) as set out hereinabove.
We next turn to the master’s finding that, at the time of Mr. Williams’s suspension, Mr. Williams was representing clients in three other pending cases, one in Pulaski County Chancery Court, and one each in Faulkner County Chancery Court and Circuit Court. The master found the Committee proved that Mr. Walker had violated Procedures Section 71(1) by failing to notify opposing counsel of Williams’s suspension in the Pulaski County action and showed Mr. Williams had violated Procedures Section 71(5) by failing to file with the two Faulkner County courts a copy of a written notice advising opposing counsel of his suspension. Again, from our review of the evidence, including Mr. Williams’s stipulations and failure to show he filed required notices, we accept the master’s findings that Mr. Williams violated Procedures Sections 71(1) and (5). Having been fully aware of these procedures, but faffing to comply with them, we must hold Mr. Williams in contempt. Procedures Section 71(9).
The master found other procedural violations which we hold are supported by the record, which includes stipulations made by the Committee and Mr. Williams. Those violations are as follows:
*He failed to file with the Supreme Court Clerk and the Committee a list of all other state, federal, and administrative juris dictions to which he is licensed or admitted to practice as required by Procedures Section 71(7).
*He failed to file an affidavit with the Committee that he has fully complied with the provisions of his order of suspension and completely performed the requirements of Procedures Section 71, or provide a full explanation of the reasons for his noncompliance, as required by Procedures Section 71(8).
*He failed to keep and maintain a record of the steps taken to accomplish the Procedures Sections 7I(l)-(5), as required by Procedures Section 71(6).
*He willfully failed to pay any portion of the fine or restitution the Committee ordered.
Upon a careful review of the evidence, stipulations, arguments, and the master’s report, we hold that, because he practiced law and willfully disobeyed Committee procedures and orders after his suspension, Mr. Williams is in contempt of court. In reaching this decision, we are mindful of Mr. Williams’s references to his earlier bankruptcy proceeding and purported financial troubles, but we think the master’s remarks are especially insightful on this point. In this respect, the master emphasized that Williams had established a pattern of ignoring procedures and orders, including his having made no effort to notify the Committee that he was in bankruptcy. Moreover, the Committee notes that Mr. Williams listed neither the restitution nor fine as a part of his debts in bankruptcy; nor did Williams pay one dollar towards discharging these amounts.
In holding Mr. Williams in contempt, we note that he may be punished by incarceration, imposition of fine, or both. Section 2(C)(6) (1999); Cf. Street v. State, 331 Ark. 443, 959 S.W.2d 747 (1998). While we hold Mr. Williams in contempt, we do not immediately impose a penalty, but instead withhold its imposition until the Committee completes its actions and proceedings regarding sanctions. In this respect, we mention that Mr. Williams’s suspension went into effect on February 3, 1999, which would ordinarily reflect Mr. Williams’s eligibility to apply for reinstatement commencing August 3, 1999. As already determined by the Committee and the master, Mr. Williams has failed to comply with the required duties under Section 71 of the Professional Conduct Procedures so as to permit his reinstatement under Section 7K. Thus, the suspension remains in effect pending further review by the Committee.
At this time, we reinvest the Committee with jurisdiction to conduct any further hearings it deems are needed and to reconsider the imposition of sanctions as may be necessary, particularly under Section 7 of the Procedures Regulating Professional Conduct. Upon filing its final petition, the Committee shall file its accompanying findings and order with this court so the court can consider and decide the proper penalty to be imposed in this contempt proceeding. The Committee is directed to complete and return this matter for submission on or before October 14, 1999. Of course, Mr. Williams retains his right to appeal from any new and adverse sanction or issues which already had not, or could not have, been raised in prior proceedings.
Mr. 'Williams strenuously argues the suspension notice was received by him two days after his initial meeting with Mrs. Walker. He also claims Mrs. Walker should have been informed by Williams’s secretary that Mrs. Walker should hire another attorney. Again, the master resolved this conflict in evidence against Mr. Williams. Besides, Mr. Williams cannot place his Model Rule responsibilities onto his secretary. In addition, as relied on by the master, evidence exists showing Mr. Williams continued representing Mrs. Walker after his initial meeting with her.
We do not address the Committee’s suggestion that our court also has the “inherent authority” to suspend or disbar an attorney in these circumstances. See Hurst v. Bar Rules Committee of the State of Arkansas, 202 ark. 1101, 155 S.W.2d 697 (1941); In Re Buffalo, 390 U.S. 544 (1968); In the Matter of Gwen G. Cavanchini, 160 F.3d 42 (8th Cir. 1998). However, we need not decide the issue now, since we ultimately conclude the Committee may first opt to take further action. Our reinvesting the Committee with jurisdiction, too, avoids any due process or procedural arguments since the Committee has never asked this court to increase Mr. Williams’s suspension or disbar him until the Committee filed its written brief herein.
K. Reinstatement.
(1) Following any period of suspension from the practice of law, an attorney desiring reinstatement shall file with the Executive Director a verified petition requesting reinstatement.
(2) The petition for reinstatement shall be accompanied by proof of payment of an application fee of $100.00 to the Clerk.
(3) The petition for reinstatement shall set out the following:
(a) That the attorney has fully and promptly complied with the requirements of subsection I of this Section.
(b) That the attorney has refrained from practicing law during the period of suspension;
(c) That the attorney’s license fee is current or has been tendered to the Clerk; and
(d) That the attorney has fully complied with any requirements imposed by the Committee as conditions for reinstatement.
(4) Any knowing misstatement of fact may constitute grounds for contempt, denial, or revocation of reinstatement.
(5) Failure to comply with the provisions of subsections 1(7) and (8) of this Section shall preclude consideration for reinstatement.
(6) No attorney shall be reinstated to the practice of law in ths State until the Arkansas Supreme Court has received an affirmative vote by a majority of the Committee.
Mr. Williams via his brief in this proceeding has attached copies of seven letters and an affidavit that purport to be the missing notices and an affidavit needed to comply with the procedures violated or discussed in this opinion. In its hearing of this matter, the Committee may consider these items, their relevance, and value.
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Per Curiam.
Appellant Roger Don Farmer, by and through his attorney, has filed a motion for a rule on the clerk. His attorney, Jeffrey W. Hatfield, states in the motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
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Per Curiam.
Appellant Shirley McCoy filed a motion for rule on the clerk, stating she thought she had thirty days to appeal from a February 23, 1999, order which denied her earlier motion to vacate the trial court’s December 28, 1998, order granting appellee Nettie Moore the guardianship of Ethola Maddox. We deny McCoy’s motion.
After the trial court entered its December 28 order, McCoy obtained counsel who filed a motion on January 5, 1999, to vacate the December order. The trial court failed to act on McCoy’s motion, resulting in the motion being deemed denied on February 4, 1999. McCoy apparently had problems with her attorney and at some point proceeded pro se. Although it had no power to do so, since thirty days had expired since McCoy filed her motion on January 5, the trial court entered an order on February 23, 1999, denying her motion to vacate. Thinking she had thirty days from the February 23, 1999, order from which to file an appeal, McCoy filed her notice of appeal on March 19, 1999. See Rule 4 of the Rules of Appellate Procedure—Civil (1999), and Rule 59 of the Rules of Civil Procedure (1999).
The dissenting opinion suggests Rule 4 does not apply because a motion to vacate is not a motion for new trial as is required under Rule 4(b). The dissent is wrong. In Jackson v. Arkansas Power & Light Co., 309 Ark. 572, 832 S.W.2d 224 (1992), Jackson moved to vacate the trial court’s judgment as being contrary to the law, public policy, and the evidence. The Jackson court held that, because Jackson’s motion to vacate was in the nature of a motion for new trial under Rule 59, it was required to be filed within ten days of judgment. Ark. R. Civ. P. 59(b). Jackson failed to do so, and the court held that his untimely filing of his motion to vacate failed to extend the time for filing his notice of appeal under Rule 4(b). Therefore, the court dismissed Jackson’s appeal. In the instant case, Shirley McCoy is similarly barred. Although McCoy filed her motion within the required ten days, her mistake was failing to comply with Rule 4(b)(1) by omitting to file her notice of appeal within the thirty-day period after February 4, when her motion was deemed denied.
The dissent also offers the novel argument that McCoy’s motion cannot be characterized as a motion for new trial because she was never made a party to this case. The law is settled that a person with a pecuniary interest affected by a trial court’s judgment has standing to pursue appellate review of that judgment or order, even though the person was never made a party to the case. See, e.g., In the Matter of Allen, 304 Ark. 222, 800 S.W.2d 715 (1990); In re $3,166,199, 337 Ark. 74, 987 S.W.2d 663 (1999). Here, McCoy entered her appearance in this case below, because she clearly possessed a pecuniary interest which was undoubtedly affected by the trial court’s December 28, 1998, order. However, once again, she simply failed to perfect a timely appeal. Accordingly, McCoy’s motion for rule on the clerk must be dismissed.
In sum, Rule 4(c) of the Appellate Procedure—Civil required McCoy to file a notice of appeal within thirty days after her motion to vacate was deemed denied. When she failed to do so, the trial court lost jurisdiction and our court, too, is deprived of jurisdiction for an appeal. See Arkansas State Highway Comm’n v. Ayres, 311 Ark. 212, 842 S.W.2d 853 (1992).
Brown, Imber, and Thornton, JJ., dissent.
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Annabelle Clinton Imber, Justice.
Mr. Joe Louis Dansby was convicted of two counts of capital murder in the deaths of a young Nevada County couple and the jury imposed the death penalty. Accordingly, our jurisdiction is authorized pursuant to Ark. S. Ct. R. 1-2(a)(2) (1999). Mr. Dansby raises six assignments of error on appeal. We find no merit in any of the points raised, and we affirm the judgment of conviction.
On a Saturday afternoon in May, 1992, Malissa Clark and her boyfriend, Jeffrey Lewis, left her residence to go riding on a four-wheeler. Early the next morning, Ms. Clark’s parents discovered that she had not returned home. Law enforcement authorities immediately began to search for the couple. By noon that day they had found a pair of pink panties, a pair of gym shorts stained with blood, some weight lifting gloves, a part of a gun rack, and several expended .22 shell casings in a rural area off of Potlatch Road in Nevada County. This area was designated as Crime Scene 1. Later that same day, the bodies of Mr. Lewis and Ms. Clark were found several miles away from Crime Scene 1 in another rural area off of County Road 422. This area was designated as Crime Scene 2. Mr. Lewis’s body was in the bed of his pickup truck along with his four-wheeler. Ms. Clark’s naked body was lying in the road. Paint found on a stump at the first crime scene matched the paint on Mr. Lewis’s damaged pickup.
Both victims had multiple gunshot wounds inflicted by a .22 rifle, and both ultimately died from gunshot wounds delivered to the head at close range. The Medical Examiner at the State Crime Laboratory recovered .22 bullet fragments from their bodies and also took blood, hair, and vaginal samples. Evidence from the second crime scene indicated that at least one of the victims had been shot inside the truck and that both victims had been placed in the bed of the truck at some point. Several expended .22 shell casings were also recovered at Crime Scene 2. No fingerprints were recovered from either scene. Ms. Clark’s clothing and an amplifier from inside Mr. Lewis’s truck were also never recovered.
During the course of the homicide investigation, Mr. Joe Louis Dansby became a suspect. On August 27, 1993, he consented to a-search of an area surrounding his home by Arkansas State Police Investigators Lt. Finis Duvall and Sgt. Jack Ursery. However the search for .22 shell casings produced no results. On October 19, 1993, Sheriff Abb Morman and Deputies Wayne Kisselburg and Heb Sorrells went to Mr. Dansby’s home to retrieve him for purposes of obtaining blood and handwriting samples pursuant to a seizure warrant signed by a circuit judge. While at Mr. Dansby’s residence, Sheriff Morman located and recovered four expended .22 shell casings, one from the back porch and three more from the surrounding yard. The officers finally located Mr. Dansby nearby at his brother’s home as they were leaving the residence. Mr. Dansby was shown a copy of the warrant, and then accompanied the officers to Dr. Young’s office where the blood sample was to be taken.
Lt. Duvall met the officers and Mr. Dansby at Dr. Young’s office. Ms. Janice Nolan, an LPN, drew blood from Mr. Dansby and filled three tubes. According to Ms. Nolan, she initialed and dated each tube before placing them into a plastic bag. Then she sealed the bag with tape, initialed the tape herself, and then had Mr. Dansby initial the tape. Finally, she gave the bag to Lt. Duvall, who delivered it the next morning to the State Crime Laboratory. Although Lt. Duvall thought that Ms. Nolan had only given him two tubes of blood in the plastic bag, and so indicated on the evidence submission form that accompanied the blood sample to the laboratory, Mr. Kermit Channel, a serologist with the State Crime Laboratory, testified that he received a sealed plastic bag on October 20, 1993, that contained three tubes of blood, two bearing the date of October 19, 1993, and one bearing the date of October 9, 1993. According to Mr. Channel, the initials of Ms. Nolan and Mr. Dansby were displayed on the seal of the bag and all three tubes bore Ms. Nolan’s initials. She confirmed that those initials were in her handwriting and that she had probably made a mistake when writing the date on the tube of blood dated October 9, 1993. Mr. Channel prepared swatches from the tube bearing the October 9, 1993 date and sent them to the FBI Crime Laboratory for DNA testing. By report dated June 17, 1995, the FBI DNA Analysis Unit found that Mr. Dansby’s blood matched the semen taken from the victim. Swatches were also sent to Cellmark Diagnostics, a private laboratory, which also declared Mr. Dansby to be a match. At trial, Mr. Dansby objected to the introduction into evidence of the DNA test results on grounds that the State failed to establish a proper chain of custody. The trial court overruled that objection and admitted the DNA test results into evidence.
The trial court also denied Mr. Dansby’s motion to suppress the introduction into evidence of the .22 expended shell casings found by Sheriff Morman at Mr. Dansby’s home. According to a receipt from Sgt. Ursery, those four .22 shell casings were delivered by Sheriff Morman to Sgt. Ursery on October 19, 1993. At the suppression hearing, Sheriff Morman and Deputy Kisselburg testified that a report about the discovery was placed in the case file. Those shell casings were eventually submitted to the State Crime Laboratory on February 8, 1994. Before Mr. Berwin Monroe, Chief Firearms and Toolmarks Examiner at the State Crime Laboratory, examined and tested the four .22 shell casings, they were forwarded along with other evidence to the Bureau of Alcohol and Firearms Forensic Science Laboratory and to the FBI Laboratory in 1994 and 1995. In May 1996, the four shell casings were finally returned to the State Crime Laboratory, at which time Mr. Monroe completed his examination and concluded that one of the four shell casings found at Mr. Dansby’s home matched the shell casings found at Crime Scenes 1 and 2.
Mr. Dansby was charged in Nevada County on July 13, 1995 with two counts of capital murder. On July 11, 1996, the trial court granted Mr. Dansby’s request that venue be changed from Nevada County to Miller County. Seven months later, on February 18, 1997, after he retained new counsel, Mr. Dansby filed a motion to withdraw the earlier request for a change of venue, asserting that he now wanted to be tried in Nevada County where the crimes were committed. The trial court denied Mr. Dansby’s motion.
Mr. Dansby’s trial began in Miller County on April 7, 1997, with an extensive voir dire of the jury by the trial judge. Voir dire by the attorneys was primarily focused on how the members of the jury panel felt about the death penalty. Mr. Christopher Conner was the first African-American drawn for consideration as a juror. After the State used one of its peremptory challenges to excuse Mr. Conner, Mr. Dansby posed a Batson challenge to the State’s strike. The State responded that Mr. Conner’s views on the death penalty indicated that he would not seriously consider it as a sentencing option. The trial court then overruled Mr. Dansby’s Batson objection.
During the trial, the State called Mr. Jackie Wayne Cooper, a habitual offender with seven prior convictions, to testify as a witness during its cas e-in-chief. Mr. Cooper testified that Mr. Dansby had told him about the murders when they were both incarcerated in the Nevada County jail. According to Mr. Cooper, Mr. Dansby confessed to committing the murders and told him certain details about the crime. Mr. Dansby took the stand in his own defense and denied making a confession to Mr. Cooper. Prior to his cross-examination by the State, the trial court ruled that Mr. Dansby had waived his spousal privilege because a third party had testified that Mr. Dansby made a confession to him. The State then proceeded to cross-examine Mr. Dansby about his statements to his wife, whereupon he denied ever making a confession to her. Mr. Dansby’s wife, Betty Dansby, was then called as a rebuttal witness for the State. The trial court reiterated its prior ruling that the husband-wife privilege had been waived and permitted Mrs. Dansby to testify that Mr. Dansby told her that he killed the kids, threw the gun in the gravel pit, and that, if she loved him, she wouldn’t tell anyone.
During its cross-examination of Mr. Dansby, the State also sought to introduce certain “pornographic” magazines seized at his former home. The trial court held an in camera hearing on the admissibility of this evidence. In that hearing, the State asked Mr. Dansby whether the magazines in fact belonged to him, to which he responded, “If it’s something that is gonna hurt me, my answer is no.” The State then moved for permission to question Mr. Dansby in front of the jury about this response. While the trial court agreed with the defense that the pornographic magazines were not admissible, it nonetheless ruled that Mr. Dansby’s response reflected on his credibility and was a proper subject of cross-examination. The jury then heard Mr. Dansby acknowledge his previous statement.
Following a lengthy trial that concluded on April 24, 1997, the jury found Mr. Dansby guilty of two counts of capital murder and sentenced him to death on both counts. Mr. Dansby now appeals that conviction and raises six points for reversal: (1) the trial court erred in denying his motion to withdraw the request for a change of venue; (2) the trial court erred in overruling his Batson challenge; (3) the trial court erred in denying his motion to suppress the introduction of four spent .22 shell casings; (4) the trial court erred in admitting into evidence the DNA test results; (5) the trial court erred in ruling that Mr. Dansby had waived the husband-wife privilege; and (6) the trial court erred in allowing the State to cross-examine Mr. Dansby about statements that he made during an in camera hearing:
Venue
For his first point on appeal, Mr. Dansby asserts that the trial court erred in denying his motion to withdraw a previous request for change of venue. He asserts that he was not asking the court to change the venue of the trial back to Nevada County. Rather, he characterizes the motion as merely an attempt to withdraw his previous request that venue be changed to a county other than Nevada County. In a related argument, he contends that the trial court’s denial of the motion violates his constitutional right to trial in the county in which the crime was committed. Both arguments are without merit.
Article 2, Section 10, of the Arkansas Constitution states:
In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed; provided that the venue may be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, in such manner as now is, or may be, prescribed by law.
(Emphasis added.) According to the plain language of this constitutional provision, a defendant’s constitutional right to be tried in the county where the crime was committed is qualified by the defendant’s right to apply for a change of venue “in such a manner as now is, or may be, prescribed by law.” Ark. Const. Art. 2, § 10. Thus, Article 2, section 10, of the Arkansas Constitution contemplates that the manner by which venue may be changed will be determined by legislative enactment. To that end, the legislature has enacted Ark. Code Ann. § 16-88-203 (1987), which states that “[o]nly one change of venue shall be granted in any criminal case or prosecution.”
We have held that this section is not unconstitutional on its face. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979). We have further noted that the decision of whether or not to grant a change of venue, even a second one, is one that rests within the trial court’s discretion. Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988); Perry v. State, 279 Ark. 357, 642 S.W.2d 865 (1982). Both Ronning and Perry state that it is not an abuse of discretion for the trial court to refuse a defendant’s request for a second change of venue. Ronning, supra; Perry, supra.
At a pretrial hearing held on December 11, 1995, in the Circuit Court of Nevada County, the State indicated it would not oppose a change of venue in light of the amount of pretrial publicity that this case had generated in Nevada County. At a pretrial hearing on January 8, 1996, Mr. Dansby advised the court that he wanted to be tried in Nevada County. However, at another pretrial hearing held on July 11, 1996, Mr. Dansby’s counsel informed the court that Mr. Dansby wanted to have venue transferred to another county. When this request was made, the following exchange took place:
Mr. Hale (Counselfor Defendant): But, we would make a verbal motion and just following up on what Mr. Haltom said and I’ve talked to Mr. Dansby again this morning and that’s correct at this time, we would make a motion to transfer venue, and I will follow up with a written motion, Judge, but this just came about yesterday or day before when I visited with Joe over at the county jail, and he asked me if I would make a motion to transfer venue. And now, I’m formally making that motion for the court to consider ....
The Court: Mr. Dansby, I just, you’re present, of course, here, and you’ve heard the statements of your attorney, Mr. Hale. Is, do you now concur that may, you have conferred with your attorney, do you concur with him that a change of venue may be in your best interest?
Mr. Joe Louis Dansby: Yes.
* # *
The State: . . . We’d hate to order a change of venue to Miller County and about, or some other county, and about the time we go to trial, he decides he wants it back in Nevada County. But, if that’s what he wants and if the State stipulates to a change of venue, we think the record needs to be clear that the next time he changes his mind, we may oppose it. We want him just as we wanted him bound with his decision to try it in Nevada County back on January of ’96, if he’s changed his mind and wants a change of venue now and the State agrees to that, we want him to know that he’s bound by that, and he can’t just keep changing his mind and because Joe decides he wants another county, do it. It’s a matter that the State does not have to agree to and the Court does not grant, but apparently, he’s got the opinion that just whatever Joe wants, Joe gets. And I think the record needs to be clear that that’s not true. But, if he agrees to a change of venue to another county and the Court orders it, the fact that he subsequently changes his mind and maybe wants to come back to Nevada County doesn’t mean that that will happen.
After hearing responses from both sides, and no opposition from the State, the trial court transferred venue from Nevada County to Miller County on July 11, 1996.
Nevertheless, on February 18, 1997, after Mr. Dansby retained new counsel, he moved to withdraw his earlier request for change of venue. In support of this motion, he argued that no real steps had been taken to change venue to Miller County, other than an entry on the court’s docket, noting that the record still remained in Nevada County as did all the witnesses and evidence. The trial court, however, pointed out that arrangements had already been undertaken to schedule the trial in Miller County, and that Mr. Dansby had been warned in July 1996 when he requested a change of venue to Miller County that another request for change of venue back to Nevada County might not be granted. The trial court also observed that no real justification had been presented for transferring the trial back to Nevada County, and that such a transfer would result in further unnecessary delays. For these reasons, the trial court denied Mr. Dansby’s motion.
In Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997), we faced a similar situation when we denied Mr. Ford’s petition for a writ of prohibition to prohibit the circuit court from trying him in Mississippi County. In Ford., the crime occurred in Crittenden County, but was transferred to Mississippi County upon Mr. Ford’s motion for a change of venue. After Mr. Ford’s conviction was vacated by a federal district court, Mr. Ford contended that venue should be fixed in Crittenden County, where the information against him was filed. He argued, as Mr. Dansby does, that Ark. Const, art. 2, § 10, entitled him to a trial in the county where the crime was committed. We held that, regardless of the vacation of sentence by the federal district court, Mr. Ford remained exacdy as he was “immediately before trial commenced in Mississippi County in 1981.” Ford, supra. Because Mr. Ford had already been granted one change of venue to Mississippi County, we held that the trial court did not abuse its discretion in denying Mr. Ford’s request to have venue transferred back to Crittenden County. Ford, supra.
Mr. Dansby suggests that Ford, supra, is distinguishable from this case because his request to return venue to the county where the crime was committed was made before there was a trial and before there was a conviction. This distinction, however, ignores the focus of our holding in Ford. It is where venue stands immediately prior to trial that is controlling. In Mr. Ford’s case, venue was in Mississippi County immediately before trial in 1991. In this case, venue was in Miller County immediately before trial in 1997.
Mr. Dansby, however, seeks to ignore the trial court’s July 11, 1996 ruling that transferred venue to Miller County, by insisting that the only step taken to change venue was a docket entry. He submits, therefore, that his motion was not a request to change venue again, but rather that it was a request to withdraw his earlier motion for change of venue. This argument is not supported by the record of what transpired at the July 11, 1996 hearing. On that date, the trial court moved the jury trial to Miller County, and, as reflected in the colloquy quoted above, both the trial court and the State endeavored to make sure that Mr. Dansby understood the significance of such a transfer. When Mr. Dansby’s motion to withdraw was heard by the trial court at a hearing on March 19, 1997, the trial court had already coordinated the docket with three other judges in order to secure a courtroom on the scheduled trial date of April 7, 1997, and the State had already subpoenaed its witnesses to appear on that date in Miller County.
Under these circumstances, it is clear that the trial court complied with Article 2, § 10, of the Arkansas Constitution and Ark. Code Ann. § 16-88-203 (1987), when it acted upon Mr. Dansby’s first request for a change of venue in July 1996 and transferred venue to Miller County. Although Mr. Dansby labeled his second motion as a motion to withdraw the earlier request for a change of venue, it was actually nothing more than a request for a second change of venue, and therefore was discretionary with the trial judge. See Ford, supra; Ronning, supra; Perry, supra. Furthermore, we cannot say that the trial court abused its discretion when it denied Mr. Dansby’s request for a second change of venue.
Batson Challenge
Mr. Dansby’s second point for reversal asserts that the trial court erred in overruling his Batson challenge to the State’s exercise of one of its peremptory strikes on Mr. Christopher Conner, the first African-American drawn for consideration as a juror. Mr. Dansby contends that the basis for the State’s challenge, Mr. Conner’s opposition to the death penalty, was not race-neutral. This argument is without merit.
We will reverse a trial court’s ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. See Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999); Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). In making Batson rulings, we accord a measure of deference to the trial court in light of its superior position to make such determinations due to its unique opportunity to observe the parties and determine their credibility. Williams, supra; Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). Unless discriminatory intent appears in the prosecutor’s explanation, the reason given will be considered race-neutral. Williams, supra. We have previously held that the State could use a peremptory challenge to strike a juror who was morally opposed to the death penalty. See Green, supra; Sanford, supra.
The jury panel here was composed of sixty-four venire persons, with twelve members of the venire being African-American. Mr. Christopher Conner was the first African-American questioned during voir dire and the only African-American peremptorily challenged by the State. Mr. Conner’s answers to questions by the trial court, the State, and the defense, indicated a moral opposition to the death penalty. He stated that he was “opposed to putting someone to death for any crime,” and added that under no circumstances did he believe in capital punishment or the death penalty. While Mr. Conner ultimately conceded that he could follow the judge’s instructions on the law and consider the death penalty if so instructed, he also admitted upon re-examination by the State that he could not vote to impose the death penalty on another individual. The State then moved to strike Mr. Conner. Defense counsel raised a Batson challenge and argued that Mr. Conner was being excluded by virtue of his race. The State responded that it was striking Mr. Conner because of his inability to consider or impose the death penalty even under direct instruction by the trial court.
The trial court initially ruled that no systematic pattern of discrimination had been demonstrated, but that it would continue to look for such a pattern. While the trial court refused to disallow the State’s peremptory strike at that time, it instructed Mr. Conner to remain under summons as a juror until jury selection was completed. The trial court reiterated its willingness to reconsider the issue if a pattern were to develop later. Two African-Americans were ultimately seated on the jury. We have previously observed that this is persuasive evidence of a lack of racial bias during jury selection. See Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). Additionally, the State peremptorily struck a white female from the venire on the same basis that it struck Mr. Conners — an inability to consider the death penalty. The trial court ultimately allowed the challenge, concluding that the State’s race-neutral explanation for striking Mr. Conner was not a pretext for purposeful discrimination.
Mr. Dansby maintains, however, that striking an African-American juror from the venire on the basis of that juror’s views on the death penalty is equivalent to a violation of the United States Supreme Court’s ruling in Batson v. Kentucky, 476 U.S. 79 (1986), because most African-Americans oppose the death penalty due to its unequal application. He also asks us to reconsider our holdings in Green and Sanford, arguing that the effect of these decisions is to justify a racially based peremptory strike. We have previously considered and rejected similar arguments of generalized death penalty views among the African-American population. See Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996). Mr. Dansby has provided neither the trial court nor this court with any evidence or data in support of this factual assertion. The United States Supreme Court has noted:
“Death Qualification,” unlike the wholesale exclusion of blacks, women, or Mexican-Americans from jury service, is carefully designed to serve the State’s concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial.”
Lockhart v. McCree, 476 U.S. 162, 175-76 (1986). Thus, even if Mr. Dansby’s factual suppositions were accurate, we would nonetheless affirm the trial court’s ruling on the basis that the State has a legitimate interest in seating only those jurors who can follow the provisions of the law, including the imposition of the death penalty. See, e.g., Danzie, supra. We therefore affirm on this point.
Motion to Suppress Expended .22 Cartridge Casings
Mr. Dansby’s third point on appeal is that the trial court erred in denying his motion to suppress the introduction of the four expended .22 cartridge casings found by Sheriff Morman at his home because no written report was made of the seizure as required by Ark. R. Crim. P. 15.4. We affirm on this point as well.
Rule 15.4 of the Arkansas Rules of Criminal Procedure states:
(a) In all cases of seizure other than pursuant to a search warrant, the officer making the seizure shall, as soon thereafter as reasonably possible, report in writing the fact and circumstances of the seizure, with a list of things to the court before which the defendant will be brought for first appearance, or, if no arrest is made to a court having jurisdiction to entertain proceedings respecting the offense disclosed by the seizure.
(b) A copy of the list shall be given to the defendant or his counsel and the list shall be given such public notice as may be directed by a court of competent jurisdiction.
While we have never interpreted the substantive requirements of Rule 15.4, it is clear that we must analyze it in conjunction with our rules regarding the suppression of evidence. When reviewing a denial of a motion to suppress, this court must make an independent determination based upon the totality of the circumstances. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998); Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998). We reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Green, supra; Thompson, supra. In making this determination, we view the evidence in the light most favorable to the State. Green, supra; Thompson, supra.
Pursuant to Rule 16.2(e) of the Arkansas Rules of Criminal Procedure, a motion to suppress evidence based on a rule violation will “be granted only if the court finds that the violation upon which it is based was substantial.” Rule 16.2(e) also enumerates the circumstances that a court must consider in determining whether a violation is substantial:
(i) the importance of the particular interest violated;
(ii) the extent of deviation from lawful conduct;
(iii) the extent to which the violation was willful;
(iv) the extent to which privacy was invaded;
(v) the extent to which the exclusion will tend to prevent violations of these rules;
(vi) whether, but for the violation, such evidence would have been discovered;
(vii) the extent to which the violation prejudiced the moving party’s ability to support his motion, or to defend himself in the proceedings in which such evidence is sought to be offered in evidence against him.
Consequently, a rule violation will warrant the suppression of evidence only when the trial court, after considering the factors set forth in Rule 16.2(e), finds that the violation was substantial. In McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985), we held that the failure to return a warrant to the issuing judicial officer as required by Ark. R. Crim. P. 13.4 was not a substantial violation sufficient to warrant suppression of the evidence where the failure was not willful and the appellants had shown no prejudice.
In this case, the testimony revealed the following: Deputy Kisselburg, Deputy Sorrells and Sheriff Morman all went to Mr. Dansby’s residence on October 19, 1993 in order to obtain blood and handwriting samples pursuant to a seizure warrant. Once they arrived at the residence, Deputy Kisselburg went to the front door while Deputy Sorrells and Sheriff Morman went around to the back door and commenced knocking. Sheriff Morman and Deputy Sorrells both testified that the sheriff noticed a .22 shell casing lodged between two bricks at the back entrance. Sheriff Morman and the other officers then began looking around Mr. Dansby’s residence for other shell casings while they waited for Mr. Dansby to return. Within twenty to thirty minutes of their arrival, Sheriff Morman discovered three more .22 shell casings in the back yard no more than twenty feet from where the first casing was found. None of the other officers found any shells. Although Deputy Sorrells witnessed the sheriff retrieve the first .22 shell casing from between the bricks at Mr. Dansby’s back door, neither of the deputies witnessed the sheriff’s discovery of the other three shell casings.
Sheriff Morman then gave the shell casings to Deputy Kisselburg, who transferred them to a .35 mm film canister. The container was then sealed with evidence tape and Sheriff Morman delivered it to Sgt. Ursery, who issued an evidence receipt dated October 19, 1993. According to Sheriff Morman, the sealed film canister was submitted to the State Crime Laboratory on February 8, 1994.
At the hearing on Mr. Dansby’s motion to suppress the shell casings, Sheriff Morman and Deputy Kisselburg testified that a report about the discovery of the shells on October 19, 1993, was filed in the law enforcement file. Sheriff Morman was subsequently interviewed on June 7, 1996, by State Police Investigator Lt. Mike Fletcher about the circumstances of the seizure on October 19, 1993, and that interview was transcribed. Although the report mentioned by Sheriff Morman and Deputy Kisselburg was never produced, their testimony about its existence went unrebutted. The State maintained an open-file policy throughout the discovery process, and the defense was made aware that these shells, discovered at Mr. Dansby’s home on October 19, 1993, were part of the State’s evidence.
In light of these circumstances, we conclude that there has not been a substantial violation of Rule 15.4 warranting suppression of the shells. There was consistent testimony by three law enforcement officials detailing the facts and circumstances of the search. There is a receipt documenting the transfer of the evidence from Sheriff Morman to the State Police Investigator that corroborates the date of the seizure and lists the items that were found. Finally, there was testimony that a report was filed in the law enforcement file. The trial court observed that the filing of the report in the law enforcement file was reasonable where no charges had been filed, no arrest had been made, and there was no case file where the court clerk could file such a report. Further more, the materials in the law enforcement file became available to the defense through the State’s open file policy. Based on this record, we cannot say that Sheriff Morman willfully failed to report the fact and circumstances of the seizure to the court “as soon thereafter as reasonable possible,” as required by Rule 15.4.
Mr. Dansby also cites an inability to follow the “torturous” path of the shell casings as a circumstance indicating prejudice. However, the path that the shell casings followed after they left Sheriff Morman’s possession does not bear upon the Rule 15.4 issue. The purpose of Rule 15.4 is to give the trial court notice of a warrantless seizure within a reasonable time after the seizure. Whereas, the path of evidence after seizure is governed by the establishment of a proper chain of custody. In any event, the path of the shell casings, which has been described earlier in this opinion, is traceable simply through the numerous reports from the various testing facilities and law enforcement agencies, and those reports were made available to Mr. Dansby during the course of discovery. Accordingly, we cannot say that Mr. Dansby has shown prejudice resulting from Sheriff Morman’s failure to comply with Rule 15.4.
Based upon the totality of the circumstances, we conclude that the trial court’s ruling was not against the preponderance of the evidence. We, therefore, affirm the trial court’s ruling that the failure to report the seizure to the court as required by Ark. R. Crim. P. 15.4 was not a substantial violation sufficient to warrant suppression of the evidence.
Motion To Suppress DNA Test Results
Mr. Dansby next argues that the trial court erred in overruling his objection to the introduction of the DNA test results on grounds that the State faded to establish a proper chain of custody for his blood samples. We have consistently agreed that the purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. White, supra; Harris, supra. However, while the trial court must be satisfied that, in reasonable probability, the evidence has not been tampered with, it is not necessary that the State eliminate every possibility of tampering. White, supra; Phills v. State, 301 Ark. 265, 783 S.W.2d 348 (1990); Lee, supra.
Proof of the chain of custody for interchangeable items like blood must be more conclusive than for other items of evidence. White, supra; Chrisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). However, the mere possibility of access to blood, where there is no evidence of tampering, is not enough to render test results from that blood inadmissable. Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996); Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975).
Mr. Dansby was taken to Dr. Young’s office on October 19, 1993, where his blood was drawn by LPN Janice Nolan. Although Lt. Duvall testified that he thought Ms. Nolan only gave him two tubes of blood and so indicated on the evidence submission sheet that accompanied the blood sample to the laboratory, he acknowledged that he never actually counted the tubes and that he was going more on how many tubes he had been instructed to collect. On the other hand, Ms. Nolan testified unequivocally that she drew three tubes of blood from Mr. Dansby on October 19, 1993. She further testified that she dated and initialed each tube and placed the tubes in a plastic bag. She then sealed the bag with tape, initialed the tape herself, and then had Mr. Dansby initial the tape. Lt. Duvall delivered the bag to the State Crime Laboratory the next morning. The circumstances of Ms. Nolan’s testimony are corroborated by the testimony of Mr. Channel at the State Crime Laboratory, who stated that he received a sealed bag on October 20, 1993, and that the seal bore the initials of both Ms. Nolan and Mr. Dansby. Mr. Channel also testified that the bag contained three tubes of blood with Mr. Dansby’s name on each one of them and that all three tubes bore Ms. Nolan’s initials. Mr. Channel testified that neither the bag nor the seal showed any evidence of tampering.
As noted above, we must evaluate the trial court’s denial of Mr. Dansby’s motion to suppress under the totality of the circumstances, and view the evidence in a light most favorable to the State. Green, supra. Any inconsistencies in the testimony are for the trier of fact to resolve. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). Evaluating the testimony under those principles, any inconsistency in the evidence as to the number of tubes collected was logically and credibly resolved by the State’s witnesses.
Similarly, an erroneous date on the third tube of blood was also resolved by Ms. Nolan’s testimony. Ms. Nolan acknowledged on the witness stand that the October 9, 1993 date on the third tube of blood must have been her mistake. She explained that she must have omitted a “1” when dating the third tube. Her explanation is made more convincing by her testimony that, after going back and checking her records, she discovered that October 9, 1993, was a Saturday. She testified that she was not working on that date because Dr. Young’s office was not open on Saturdays, so it would have been impossible for her or anyone in Dr. Young’s office to have drawn blood on that date. Yet, the third tube of blood bore her handwritten initials. Inconsistencies in testimony are for the trier of fact to resolve. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). In view of the testimony of Ms. Nolan and Mr. Channel indicating that three tubes of blood were drawn from Mr. Dansby on October 19, 1993, and the complete lack of evidence in the record reflecting any actual tampering or contamination of the samples, or any significant gap in the chain of custody, we cannot say that the trial court abused its discretion in admitting the results of the DNA testing.
Husband-Wife Privilege
Mr. Dansby’s fifth point on appeal asserts that the trial court erred in finding that the husband-wife privilege had been waived and allowing his wife, Mrs. Betty Dansby, to testify against him. The State asserts that this privilege was effectively waived because a third party testified that Mr. Dansby communicated the privileged matter to him. We agree and affirm on this point also.
Rule 504 of the Arkansas Rules of Evidence provides that “[a]n accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.” See also, Ark. Code Ann. § 16-41-101 (1987). However, Ark. R. Evid. 510 states:
A person upon whom these rules confer a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself was privileged.
Thus, if the same information protected by privilege is disclosed to a third person, the privilege is waived. See, e.g., Halfacre v. State, 292 Ark. 331, 731 S.W.2d 179 (1987).
In this case, the State called Mr. Dansby’s wife, Betty Dansby, to testify in its case-in-chief. Mr. Dansby asserted the husband-wife privilege and the trial court ruled prior to her testimony that the husband-wife privilege applied and warned Mrs. Dansby not to disclose any confidential communications between her and Mr. Dansby. She then testified only about what she had observed.
Later in its case-in-chief, the State presented the testimony of Mr. Jackie Cooper. According to Mr. Cooper, he and Mr. Dansby were both being held at the Nevada County jail when Mr. Dansby told him that he committed the murders. Specifically, Mr. Cooper testified that Mr. Dansby told him that he killed the two victims, killing the male victim first; that he raped the female victim; that he undressed the female victim after he killed her in order to prevent the discovery of hairs or fibers; that he attempted to wipe the female’s vaginal area clean after the rape; and that he killed one of the victims in a location different from the one where the bodies were found.
Mr. Dansby then took the stand in his own defense and denied that he told Mr. Cooper that he had killed the victims or that he had raped the female victim. Prior to cross-examination by the State, the trial court ruled that Mr. Dansby had waived the spousal privilege because a third party had testified that Mr. Dansby confessed to him about the murders. The State then was allowed to ask Mr. Dansby about the statements he made to his wife, whereupon Mr. Dansby denied ever telling his wife that he killed the victims. Mrs. Dansby was then called as a rebuttal witness for the State. She testified that Mr. Dansby told her that he killed the victims because a white man had killed his grandpa and nothing was done about it, that he threw the gun in a gravel pit, and that, if she loved him, she wouldn’t tell anyone what he had told her.
Mr. Dansby argues that the trial court should have decided that Mr. Cooper’s “highly disputed” testimony lacked credibility and ruled that Mr. Dansby had not waived the husband-wife privilege. To that end, Mr. Dansby points out that Mr. Cooper had been in the penitentiary on seven different occasions, all for violent crimes; that he and Mr. Dansby were not cell mates; that they had never met prior to their coincidental incarceration at the Nevada County jail; and that Mr. Cooper had previously told police that another inmate had confessed to the murders.
Mr. Dansby also suggests that the waiver of the husband-wife privilege should be limited to situations where the privileged matter is disclosed by the defendant to numerous people, either directly or by being overheard. We have previously upheld the waiver of the husband-wife privilege under such circumstances. Perry v. State, 280 Ark. 36, 655 S.W.2d 380(1983); Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). Finally, he suggests that the waiver should be limited to communications with a third party that are undisputed, because the defendant in Halfacre, supra, did not dispute the disclosure. Mr. Dansby thus proposes that his denial of the disclosure to Mr. Cooper should foreclose a waiver of the husband-wife privilege.
Unfortunately Mr. Dansby’s arguments are not supported by Rule 510 of the Arkansas Rules of Evidence which plainly states that the communication of any significant part of the privileged matter to someone other than the spouse waives the spousal privilege. The rule grants no exceptions or qualifications other than when the disclosure is itself privileged, such as a disclosure covered by lawyer-client privilege. Rule 510 does not state that the waiver depends upon the disclosure being heard by a number of people. Nor does the rule state that the waiver depends upon the third party’s testimony being undisputed. While we sympathize with Mr. Dansby on the quality of the State’s witness, the fact remains that the State introduced evidence that the privileged communication was disclosed to someone other than Mr. Dansby’s wife. In other words, the State introduced evidence that there had been a waiver of the privilege. Under such circumstances, it is solely within the province of the jury, not the trial court, to determine the credibility of that witness and the weight to be afforded that evidence. In that regard, Mr. Cooper was cross-examined extensively by Mr. Dansby’s counsel.
Mr. Dansby’s Admission
Mr. Dansby’s final point on appeal is that the trial court erred in allowing the State to cross-examine him about statements he made during an in camera hearing. He contends that the trial court allowed impeachment by extrinsic evidence on a collateral matter. The State asserts that the testimony was admissible because it reflected on Mr. Dansby’s credibility. We agree and affirm on this point.
In his final point, Mr. Dansby contests an evidentiary ruling by the trial court. A trial court is accorded wide discretion in evidentiary rulings, and will not be reversed on such rulings absent a manifest abuse of discretion. Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999); Miskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).
During an in camera hearing concerning the admissibility of certain items left at Mr. Dansby’s home after he vacated the premises, the following exchange occurred:
Mr. Dansby: Could you rephrase the question please?
Mr. Rogers (For the State): Is any of these what’s been termed pornographic magazines yours?
Mr. Dansby: If it’s something that’s going to hurt me, I say no.
Mr. Rogers: Sir?
Mr. Dansby: If it’s something that’s going to be used to hurt me, I say no.
Mr. Rogers: You’re going to lie if you think it’s going to hurt you?
Mr. Dansby: Because it has nothing to do with whatever you are talking about. They were taken from some place property, shouldn’t have taken them from my property.
The State then announced its intention to cross-examine Mr. Dansby in front of the jury concerning his statements that he would lie if a truthful answer would hurt him. The trial court ruled that, although the pornographic magazines were not admissible under the Ark. R. Evid. 403 balancing test, the State could question Mr. Dansby about the above-quoted statement that he made during the in camera hearing because it was relevant to his credibility. The trial court further instructed the State to refrain from mentioning the pornographic magazines in its cross-examination. When the jury returned to the courtroom, Mr. Dansby testified as follows in response to the State’s questions:
Mr. Rogers (For the State): Okay, Mr. Dansby, during the break, I believe I asked you if you could identify some items?
Mr. Dansby: Yes.
Mr. Rogers: And did you recall making the response if it’s something that hurts me, I say no?
Mr. Dansby: Yes, I said that.
Mr. Rogers: And then you responded again, if it’s something that’s going to be used to hurt me, I say no.
Mr. Dansby: Yes, I said that.
A witness’s credibility is always an issue, subject to attack from any party. See Ark. R. Evid. 607. Mr. Dansby took the stand and thereby made his credibility an issue. He now argues that the State should not have been allowed to ask him about a statement he made in an in camera hearing while answering questions about a collateral matter, i.e., his possession of pornographic magazines in his home. We have previously held that a matter is not collateral if the cross-examining party would be entitled to prove the issue as a part of the case-in-chief, or if the evidence is relevant to show bias, knowledge, intent, or interest. Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999); Pyle v. State, 314 Ark. 165, 862 S.W.2d 833 (1993). Mr. Dansby testified under oath that if he was asked about “something that’s going to be used to hurt me, I say no.” This admission that made no reference to the evidence excluded by the trial court (the pornographic magazines) was relevant to show Mr. Dansby’s bias. Mr. Dansby’s statement indicated a willingness to give false testimony if it would help his case. Such a propensity can only be characterized as a bias that is governed by the principle of utilitarianism — testimony that would benefit Mr. Dansby would prevail over the truth. Mr. Dansby’s admission during the in camera hearing was simply not a collateral matter. We, therefore, cannot say that the trial court’s evidentiary ruling was an abuse of discretion.
Ark. Sup. Ct. R. 4-3(h) Compliance
In accordance with Rule 4-3 (h), the record has been reviewed for adverse rulings objected to by Mr. Dansby but not argued on appeal, and no reversible errors were found.
Affirmed.
A .22 Marlin rifle was recovered from the gravel pit shortly after Mrs. Dansby disclosed her husband’s confession to the deputy prosecuting attorney in January, 1994. Mr. Dansby’s son, Jackie Dansby, identified this particular rifle as belonging to his father, and Mr. Dansby himself admitted that he had his .22 rifle the day before the bodies were discovered at Crime Scene 2, although he claimed that someone had stolen the rifle from his automobile that same evening.
Juror Mildred Sanders was later excused from service during the course of the trial pursuant to a note from her doctor.
There was a reference to a report authored by Sheriff Morman in a motion filed by Mr. Dansby’s first attorney. The trial court acknowledged that it could not be sure that it was a reference to an actual report made by Sheriff Morman or a reference to the June 7, 1996 interview conducted by Lt. Fletcher. Nonetheless, the trial court appeared to view the reference as evidence that a report by Sheriff Morman in fact existed and was at some point reviewed by Mr. Dansby’s attorneys.
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W. H.“Dub” Arnold, Chief Justice.
The primary legal issue presented in this case is whether the State may mandatorily administer antipsychotic medication to a condemned prisoner, in order to keep him from being a danger to himself and others, when a collateral effect of that medication is to render him competent to understand the nature and reason for his execution.
Appellant, Charles Singleton, was sentenced to death in 1979 for the brutal murder of Mary Lou York. He was treated for psychiatric problems in prison for years. In 1997, he voluntarily ceased taking antipsychotic medication. He again became psychotic, according to his treating psychiatrist. In August of 1997, the Medication Review Panel agreed with his psychiatrist’s request to medicate him involuntarily. While under the regimen of involuntary medication, appellant lost his last round of appeals. Governor Mike Huckabee set an execution date of March 11, 1998. The Department of Correction continued to treat appellant with involuntary medication.
Appellant filed, in Jefferson County Circuit Court, a complaint and petition for declaratory judgment and petition for issuance of all writs and orders necessary to enforce declaratory judgment. Through those filings, appellant sought to prohibit his execution as long as his competency to be executed was being obtained through involuntary medication. He also sought a stay of execution in the trial court and this Court. On March 9, 1998, we granted a stay of execution to permit him to litigate the issue. After a hearing, the trial court denied appellant’s petition for declaratory judgment. From the denial of relief, appellant now brings this appeal.
Appellant asserts that the State cannot involuntarily medicate him into competency and then execute him; appellant asserts that the trial court erred in finding that the State’s involuntary medication of appellant was appropriate. Appellant contends that making him artificially competent to be executed by the administration of antipsychotic drugs violates his federal and state constitutional rights of due process of law, protection against cruel and unusual punishment, protection against unreasonable searches and seizures, in that it would violate the rights of privacy and autonomy protected by the guarantees of the Fourth Amendment and Art. 2, § 15, of the Arkansas Constitution, and Ark. Code Ann. § 16-90-506.
Further, appellant has not contested the appropriateness of the involuntary administration of medication under Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028 (1990) (holding that medicating an inmate against his will in order to protect him from himself and others is legitimate), except to assert that to the extent the involuntary administration of medication might have been appropriate when it was originally ordered in August of 1997, following a Harper evaluation conducted by the Medication Review Panel, such administration ceased to be valid as a medical necessity for appellant’s own good when his stay of execution was dissolved and an execution date was proclaimed. We disagree with appellant on all points and affirm the trial court.
Regardless of whether an execution date was set, the involuntary administration of medication was appropriate under Washington v. Harper, supra, for appellant’s own good and for the security of the institution in which he is incarcerated; it remains appropriate as long as appellant is alive and is either a potential danger to himself or others. This Court must look to the intent of the State in its decision to involuntarily medicate appellant. The State has a due process obligation to provide appropriate medical care to persons in its custody. City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 103 S.Ct. 2979 (1983); West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250 (1988).
Here, the State contends that the medication is necessary for appellant’s own good and for the safety of others. The intent of the State was not to medicate him in order to make him competent to be executed. Further, appellant has not contested the appropriateness of the involuntary administration of medication under Washington v. Harper.
In its order, the trial court made several findings of fact and law. Appellant asserts that some of the trial court’s findings are erroneous to the validity of the decision. In particular, appellant asserts that the trial court’s finding that “it had not been conclusively proven to this court that Singleton is incompetent to be executed without his medication” (emphasis added), contains an erroneous formulation of the burden of proof by using the word “conclusively.” We disagree.
The trial court found that at the time of the hearing and as stipulated, Singleton was competent to be executed. Although a Ford hearing was never conducted while appellant was off the medication, appellant does not contest that at the time of the hearing he was competent to be executed under the Ford v. Wainwright standard. See Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595 (1986) (holding that the Eighth Amendment prohibits the execution of an insane person whose mental illness prevents him from comprehending the reasons for the penalty or its implications). However, appellant asserts that his competency is a result of the involuntary medication and that being required to “conclusively” prove that he is incompetent to be executed without the med ication requires a much greater burden of proof than is appropriate under the law. We hold that because appellant presented no evidence whatsoever as to his incompetency, the use of the term “conclusively” by the trial court was inconsequential.
Appellant had several opportunities to request a Fori hearing in order to have his competency evaluated whole off the medication, yet he chose not to. The United States District Court for the Eastern District of Arkansas, Garnett Thomas Eisele, J., expressly offered appellant a Ford hearing in Singleton v. Norris, PB-C-93-425 (E.D. Ark. July 25, 1995) (Norris), which appellant rejected. In the trial court below, appellant did not raise the issue of the Ford hearing. Finally, a Ford hearing was not even requested in the instant appeal. We hold that appellant has, therefore, failed to offer proof of his incompetence.
As appellant has neither contested Washington v. Harper nor taken an appeal from same, we hold that the State had a burden to medicate appellant under Harper, that said burden continues, and that the State has met and is meeting its burden. We further hold that because appellant never requested a Ford hearing while off the medication, Washington v. Harper is controlling, and the collateral effect of the involuntary medication rendering him competent to understand the nature and reason for his execution is therefore no violation of any due process law. We affirm the trial court.
Affirmed.
Thornton, J., dissents.
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] |
Per Curiam.
Jerry S. Dye, by his attorney, has filed a motion for rule on the clerk. The motion admits that the record was not timely filed and that it was no fault of the appellant. This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied.
The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.
The present motion for rule on the clerk is denied.
|
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Per Curiam.
In 1987, David Pardue was found guilty by a jury of robbery and sentenced to five years’ imprisonment. The court of appeals affirmed. Pardue v. State, CACR 88-127 (August 30, 1989). In 1998, Pardue filed in the trial court in Benton County a petition for writ of habeas corpus challenging the judgment. The petition was denied, and the record on appeal from the order has been lodged here. Appellant Pardue now seeks by motion to supplement the record and to proceed as an indigent.
The motion is denied, and the appeal dismissed as it is clear that the appellant could not succeed on appeal. This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).
There was no basis for appellant to file a petition for writ of habeas corpus in the trial court in 1998. First, he was not incarcerated as a direct result of the 1987 conviction, for which a term of five years’ imprisonment had been imposed, when he filed in the petition. Moreover, he did not contend that he was in custody in Benton County when he filed the petition there, and the Certificate of Service reflected that he was in fact incarcerated in a federal prison in Texas, apparently as a result of another conviction. Even if the five-year sentence imposed in 1987 had not been exhausted, a circuit court does not have jurisdiction to release on a writ of habeas corpus a prisoner not in custody in that court’s jurisdiction. Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).
Motion denied and appeal dismissed.
|
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Per Curiam.
Appellant John Slaughter has filed a motion for rule on the clerk. The motion reflects that the judgment and commitment order was entered on October 21, 1998, and the notice of appeal was filed on November 19, 1998. The record was not tendered until June 3, 1999, more than seven months from the date the judgment was entered. See Ark. R. App. P.—Civ. Rule 5(b).
We will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his or her part. Pack v. State, 335 Ark. 374, 983 S.W.2d 125 (1998) (per curiam); Turner v. State, 334 Ark. 240, 973 S.W.2d 480 (1998) (per curiam). Here, Appellant’s attorney, John W. Cone, admits responsibility for tendering the record late. We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Davis v. State, 335 Ark. 136, 983 S.W.2d 122 (1998) (per curiam); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). A copy of this per curiam opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
|
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Per Curiam.
Our Committee on Civil Practice has recommended changes in Administrative Order Number 2 (b) and additions to the Reporter’s Notes to Ark. R. Civ. P., Rules 5 and 58.
Paragraph (b) (3) of Administrative Order Number 2 provides that judgments, decrees, and orders may be filed with the clerk by facsimile transmission if the court so directs.
Paragraph (b) (4) of Administrative Order Number 2 addresses emergency situations when an order needs to be effective immediately, but the clerk’s office is not open.
We thank the committee for its work and agree with its recommendations. Accordingly, we adopt, effective immediately, the changes to paragraph (b) of Administrative Order Number 2 and republish it.
We direct that the additions to the Reporter’s Notes to Rules 5 and 58 be added to the commentary.
ADMINISTRATIVE ORDER NUMBER 2 — Docket and Other Records
(a) Docket. ***
(b) Judgments and Orders. (1) The clerk shall keep a judgment record book in which shall be kept a correct copy of every final judgment or appealable order, or order affecting title to or lien upon real or personal property, and any other order which the Court may direct to be kept.
(2) The clerk shall denote the date and time that a judgment, decree or order is filed by stamping or otherwise marking it with the date and time and the word “filed.” A judgment, decree or order is entered when so stamped or marked by the clerk, irrespective of when it is recorded in the judgment record book.
(3) If the clerk’s office has a facsimile machine, the clerk shall accept facsimile transmission of a judgment, decree or order filed in such manner at the direction of the court. The clerk shall stamp or otherwise mark a facsimile copy as filed on the date and time that it'is received on the clerk’s facsimile machine during the regular hours of the clerk’s office or, if received outside those hours, at the time the office opens on the next business day. The date stamped on the facsimile copy shall control all appeal-related deadlines pursuant to Rule 4(e) of the Arkansas Rules of Appellate Procedure—Civil. The original judgment, decree or order shall be substituted for the facsimile copy within fourteen days of transmission.
(4) At any time that the clerk’s office is not open for business, and upon an express finding of extraordinary circumstances set forth in an order, any judge may make any order effective immediately by signing it, noting the time and date thereon, and marking or stamping it “filed in open court.” Any such order shall be filed with the clerk on the next day on which the clerk’s office is open, and this filing date shall control all appeal-related deadlines pursuant to Rule 4(e) of the Arkansas Rules of Appellate Procedure—Civil.
Rule 5, Ark. R. Civ. P.
Addition to Reporter’s Notes (1999): Subdivision(c)(2) of this rule does not authorize the filing of judgments, decrees or orders by facsimile transmission. However, Administrative Order No. 2(b), as amended in 1999, requires any clerk’s office with a facsimile machine to “accept facsimile transmission of a judgment, decree or order filed in such manner at the direction of the court.” The faxed judgment, decree or order is effective when entered by the clerk. To ensure the permanency of official court records, the original judgment, decree or order must be substituted for the facsimile copy within 14 days of transmission, but this step does not have any bearing on the effectiveness of the faxed document or the time for taking an appeal.
Rule 58, Ark. R. Civ. P.
Addition to Reporter’s Notes (1999): The second paragraph of this rule provides that a judgment or decree “is effective only when ... set forth [on a separate document] and entered as provided in Administrative Order No. 2.” As amended in 1999, Administrative Order No. 2(b) provides that a judgment, decree or order is “entered” when stamped or otherwise marked by the clerk with the time and date and the word “filed,” irrespective of when it is recorded in the judgment book. When the clerk’s office is not open for business, and upon an express finding of extraordinary circumstances, an order is effective immediately when signed by the judge. Such order must be filed with the clerk on the next day on which the clerk’s office is open, and this filing date controls all appeal-related deadlines.
The 1999 amendment to Administrative Order No. 2(b) also requires any clerk’s office with a facsimile machine to “accept facsimile transmission of a judgment, decree or order filed in such manner at the direction of the court.” The faxed judgment, decree or order is effective when entered by the clerk. To ensure the permanency of official court records, the original judgment, decree or order must be substituted for the facsimile copy within 14 days of transmission, but this step does not have any bearing on the effectiveness of the faxed document or the time for taking an appeal.
|
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Per Curiam.
Appellant Timothy Epps files a petition for writ of certiorari and motion to extend the time to file a brief and abstract. He prays that the writ of certiorari be granted directing court reporter, Joan Douglas, to complete the transcript in this case. Epps shows this court that the court reporter has already failed to comply with an order of the trial court extending the time for preparing and filing the transcript to July 29, 1999, which was seven months from entry of judgment. Ms. Douglas offers a heavy work schedule as an explanation for the delay.
We issue the writ of certiorari directing Ms. Joan Douglas to complete and file the transcript in this matter within thirty days from date of this order. The Supreme Court Clerk is directed to forward a copy of this per curiam order to the Board of Certified Court Reporter Examiners for any action it may deem appropriate under its rules.
Epps has also moved to extend the time for filing his abstract and brief to forty days after the transcript and record are filed herein. That motion is granted.
|
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Robert H. Dudley, Justice.
Appellant, James Branam, was convicted of murder and sentenced to 30 years in prison. On appeal, he contends that he was arrested and detained without probable cause and that the inculpatory statement taken after his arrest was the result of the exploitation of the illegal arrest and detention. We agree. The Court of Appeals has certified this case to us pursuant to Rule 29 (1) (b).
At the time of the arrest the police had the following information: After midnight on December 20, 1981, Phillip Hammett and John Widener, both white, went to the Regal Executive Lounge, a predominantly black nightclub, at the corner of Main and Roosevelt in Little Rock. Hammett and Widener had drinks with some unidentified black men. Around 2:00 a.m. Hammett, Widener, and three black men left the club in Hammett’s car. They drove to a house near the 700 block of Twenty-seventh Street and all five got out of the car. Two of the black men drew guns and demanded money from Hammett and Widener. A struggle followed, Widener escaped, but Hammett was killed.
In addition, the police had arrested two men, Willie Johnson and Murphy Carroll, after connecting them to the murder by comparing the bullets used to shoot Hammett with those used in a prior shooting. The police then began searching for the third black man. Interviews were conducted with John Widener and with six persons who had been in the Regal Executive Lounge on December 20. From those interviews the police obtained the following information: John Widener told the police that the man he talked to in the bar was five feet six inches tall, wore a cheap brown suit and sunglasses and was relatively dark skinned. He described the other two men as being “rather small.” One witness, Mr. Rafter, said the man he saw was twenty-three, dark skinned, had a large curly Afro hair style, a goatee and was wearing a gray and black pin-stripe suit. Witness Clyde Gilmore described him as five feet six inches to five feet seven inches tall, 150 pounds, dark skinned and wearing a brown or beige suit. Witness Dorothy Jackson said the third man was “five feet five inches and a loud mouth.” Pamela Holloway, another witness, said the man was five feet five inches tall, thin and had medium curly hair. Carolyn Eddleton and Wanda Robinson could not give a physical description of the third black man. Leon Pigee told the police that “the little black male has a brother who has curly hair and is short, about five feet three inches.” He also said that he thought the bigger black male’s name was Murphy.
The police began their search for a thin, dark-skinned black male, five feet five inches to five feet seven inches tall, with curly hair anda “loudmouth.” On December 30,1980, ten days later, they talked with Ernest Dodson, who was a former roommate of Murphy Carroll’s. During that interview, Dodson, who had not been at the Regal Lounge on December 20th and had no knowledge of the incident, mentioned a man he knew only as “James” but who he knew to have been shot at the Chestnut Bar and Grill who might fit that description. This person, according to Dodson, had visited Carroll’s and Dodson’s apartment in the past. A detective knew that some months before James Branam had been shot at the Chestnut Bar and Grill. James Branam, the appellant, was then arrested and subsequently gave a confession.
The appellant filed a motion to suppress the confession because it was a result of the exploitation of the illegal arrest. After hearing the evidence outlined above, the trial court denied the motion, ruling that there was probable cause to arrest the appellant. We reverse.
The United States Supreme Court in Wong Sun v. United States, 371 U.S. 471, 479 (1963) stated:
It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion, [citation omitted] though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause — evidence which would “warrant a man of reasonable caution in the belief” that a felony has been committed, [citation omitted] must be measured by the facts of the particular case.
In Coble v. State, 274 Ark. 134, 138, 624 S.W.2d 421, 423 (1981), we stated:
Probable cause exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested. Brinegar v. United States, 338 U.S. 160 (1949); Carroll v. United States, 267 U.S. 132 (1925); McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979).
In the case now before us the police had no evidence to connect the appellant with the murder. The physical descriptions could have fit any number of black males in the area. The height and skin color descrition was vague and even then appellant only generally matches the description of the third man. Appellant is five feet three and one-half inches tall, rather than the five feet five inches to five feet six inches as described by the witnesses. Appellant is a light colored black man rather than a dark skinned one. There was no information that appellant had been in the bar on the night in question or that he was ever identified by anyone as being the third black man who was with Hammett or Widener. The fact that appellant was seen visiting the apartment of Murphy Carroll, a co-defendant, at some time prior to the crime, does not give rise to probable cause.
Because there was no probable cause, the arrest was illegal. Beck v. Ohio, 379 U.S. 89 (1964). The illegal arrest was at 1:00 p.m. on December 30,1981. From that time, until 4:40 p.m. when appellant gave an incriminating statement, appellant was given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), interrogated, fingerprinted, photographed, left alone in the interrogation room for about two hours and again given the Miranda warnings.
In Brown v. Illinois, 422 U.S. 590 (1975). the Supreme Court of the United States held that, where there has been an illegal arrest, statements made following that arrest are inadmissible at trial unless it is shown that the statement is so much an act of free will that it is unaffected by the taint of the illegal arrest. Where, as here, there has been a showing that an arrest is illegal, the state must show that the statement was not obtained by exploitation of an illegal arrest. The United States Supreme Court has identified factors to be considered in this determination including the temporal proximity of the arrest and confession, whether there were any intervening circumstances, and, importantly, whether the illegal arrest was purposeful. See Dunaway v. New York, 442 U.S. 200 (1979); Brown v. Illinois, supra. If such a showing is not made, the confession cannot be admitted into evidence. This holding was recently affirmed in Taylor v. Alabama,_U.S._, 73 L.Ed.2d 314 (1982).
Since the State did not offer evidence to prove that the statement was unaffected by the taint of the illegal arrest, the statement was inadmissible.
Reversed and remanded.
|
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Robert H. Dudley, Justice.
The issue in this case is whether a title insurance company has a contractual duty to defend the insured against a complaint alleging that the insured acquired title by exercising fraud and undue influence. The trial court found no duty to defend. The Court of Appeals certified the case to this Court pursuant to Rule 29 (4) (b). We affirm.
Appellant’s mother, Adeline W. Young, conveyed her home to appellant, Dorothy Mattson, by quitclaim deed on February 15,1977. The deed was filed for record the same day and the next morning appellant purchased title insurance from a predecessor of appellee insurance company. On October 25,1977, after the death of their mother, appellant’s sister filed suit against appellant seeking to cancel the deed, alleging that it was executed as the result of fraud and undue influence exercised by appellant.
Appellee insurance company declined to defend the suit contending that the matter was not covered by the policy. Appellant proceeded in her own defense and was successful in defeating the claim. Grubbs v. Mattson, 268 Ark. 1144, 599 S.W.2d 148 (1980). She brought this action against appellee claiming that refusal by the insurance company to represent her in the lawsuit constituted a breach of appellee insurance company’s obligation under the contract of title insurance to defend against actions alleging defects in her title. The pertinent parts of the policy provide:
(a) The Company, at its own cost and without undue delay, shall provide for the defense of an insured in all litigation consisting of actions or proceedings commenced against such insured ... to the extent that such litigation is founded upon an alleged defect, lien, encumbrance, or other matter insured against by this policy.
The following matters are expressly excluded from the coverage of this policy: . . .
3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the insured claimant....
This type of exclusionary provision, commonly found in title insurance policies, has been construed to insulate the insurer from liability where the loss incurred by the insured resulted from the insured’s own intentional, illegal, or inequitable conduct. See e.g., Ginger v. American Title Insurance Co., 29 Mich. App. 279, 185 N.W.2d 54 (1970); Brick Realty Corp. v. Title Guarantee & Trust Co., 161 Misc. 296, 291 N.Y.S. 637 (1936); Rosenblatt v. Louisville Title Co., 218 Ky. 714, 292 S.W. 333 (1927). See Annotation, Title Insurance: Exclusion Of Liability For Defects, Liens, Or Encumbrances Created, Suffered, Assumed, Or Agreed To By The Insured, 87 ALR 3d 515.
Brick Realty Corp v. Title Guarantee & Trust Co., supra, a case factually similar to this one, is the leading case on this subject. There, the Court wrote:
The claim upon which the ... action was founded was of a kind which the defendant at bar was not required by the title policy to defend. This defendant did not insure plaintiff against the consequences of its own acts, was not liable for any loss occasioned thereby, and was not obliged to defend any suit attacking plaintiff’s title, even though entirely unfounded if based on acts claimed to have been committed by plaintiff.
291 N.Y.S. at 638. Likewise, the fraud and undue influence allegedly exercised by appellant in the present case were not covered by the policy.
Our general rule is that the insurer’s duty to defend is determined from the pleadings. Commercial Union Insurance Co. of America v. Henshall, 262 Ark. 117, 553 S.W.2d 274 (1977). But the insurer’s obligation to defend may be broader than its duty to indemnify, because situations can exist where the insurer’s duty to defend cannot be determined solely from the pleadings. Commercial Union Insurance Co. of America v. Henshall, supra, citing Proctor Seed and Feed Co. v. Hartford Insurance Co., 253 Ark. 1105, 491 S.W.2d 62 (1973).
In testing the pleadings to determine if they state a claim within the policy coverage we resolve any doubt in favor of the insured. Under the pleadings in this case there was no possibility that any loss could fall within coverage because the insurer is not required to compensate the insured for a loss which she brought upon herself. Thus there was no duty to defend.
Affirmed.
Purtle, J., dissents.
Hays, J., not participating.
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Robert H. Dudley, Justice.
Donald E. Hutcherson, appellee, purchased a Lincoln Mark V automobile from Union Lincoln Mercury of Little Rock. The parties executed a level payment installment sales contract that provided for the financing of $12,700 at 10% per annum, payable in 48 equal monthly installments of $322.09, with the total finance charge stated as $2,760.32. The figures for the amounts of the monthly installments and of the finance charge were taken from ordinary interest tables supplied by Ford Motor Credit Company, the appellant, to whom Union Lincoln Mercury subsequently assigned the contract.
The contract was executed on July 17,1978, and the first payment was due August 10, 1978, a period of only 24 days, or 6 days less than an ordinary interest month or 7 days less than an exact day interest month. See Thorndike Encyclopedia of Banking and Financial Tables (1980) p. XVI. Each of the succeeding consecutive monthly installments was due on the tenth day so that Hutcherson never would be afforded a full 48 months of 30 days each under the ordinary interest tables, nor would he be afforded four full years of exact day interest. Thus, the contract charged Hutcherson 10% interest for 4 years, or 48 months, while giving him use of that money for only 3.95 years or 47 months and 24 days.
Hutcherson tendered the first payment under protest claiming that the contract was usurious. Ford Credit recomputed the finance charge using exact day interest, or a 365-day year, and tendered Hutcherson a check to cover the excess finance charge but he refused it. He made two more payments under protest and then stopped paying altogether.
Ford Credit filed suit to replvy the automobile for nonpayment of the debt to which Hutcherson pleaded usury. The Chancellor found the contract was usurious. We affirm. In addition, the Chancellor held that Hutcherson was not entitled to a refund of the money he paid under protest. Hutcherson cross-appeals and we also affirm on that issue. Jurisdiction is vested in this Court by Rule 29 (4).
The Arkansas Constitution provides that all contracts for a greater rate of interest than 10% per annum shall be void as to principal and interest. Art. 19, § 13. In Martin’s Mobile Homes v. Moore, 269 Ark. 375, 601 S.W.2d 838 (1980), the only Arkansas case discussing modes of computation of interest, we set out the four main possibilities for computing simple interest as discussed in the Thorndike Encyclopedia of Banking and Financial Tables (rev. ed. 1980) p. VII. Each method may give a different amount of interest, and yet, each would be correct for that particular mode.
Exact day interest is the method which counts each day in the interest period. The basis year to compute interest is 365 or 366 days. We have always approved this method as a non-usurious method of calculating interest when the interest rate is 10% or less. According to the testimony in this case, 10% interest using this method amounts to $2,734.42. Since the contract called for $2,760.30 in interest it was usurious according to this mode of computation.
Ordinary interest counts months and days in the interest period. The basis year is always 360 days and a month is always 30 days. We approved the 360-day rule of computing ordinary interest when the interest rate is 10% or less to allow a practical solution to the virtual impossibility of preparing a standard form of contract that would yield 10% interest per annum on an exact day basis when monthly payments are being made. Ordinary interest allows the striking of a reasonable average as a practical means of reconciling erratic values. It contains no intent to avoid our usury law. We pointed out in Martin that there was nothing insidious about ordinary interest because annual payments of 10% interest upon a $1,000 debt are $100, the same as exact day interest. The only difference arises when interest payments are to be made monthly, quarterly, or semi-annually and we held that months of a standard length can be used because of history and reason.
According to Lake’s Monthly Installment and Interest Tables (6th ed. 1970), an authoritative work we have relied on in many cases, a charge in excess of 10% ordinary interest was made in this case. According to Lake’s tables the interest on $12,700 for 24 days was $85.67. In accordance with Ark. Stat. Ann. § 68-606 (Repl. 1979) the payment is first applied to interest and the balance to principal. Thus $84.67 of the first $322.09 payment is applied to interest and the remaining $237.42 applied to principal leaving $12,462.58 to be financed over 47 months. The maximum monthly payments at 10% ordinary interest were $321.96 and thus the monthly payments contracted for were greater than 10% ordinary interest. This contract was based on ordinary interest and is usurious by its own terms and it is for that reason we affirm.
Ford Credit’s attorneys in an excellent brief contend that the contract does not exceed 10% banker’s interest. That contention is correct. Banker’s interest has a basis year of 360 days but interest is charged on the exact number of calendar days in the interest period. Thorndike, supra, p. XXV and Thorndike Yearbook (1981) p. 45. Thus in any period the interest computed equals 365/360 more than the stated annual interest rate, which would amount to 10.14% annual interest on the three 365 day years involved and 10.16% annual interest on the 366 day year involved. However, the contract at issue was not based on banker’s interest; instead it was based on Ford Credit’s ordinary interest tables. Therefore we do not find it necessary to decide whether a contract which calls for 10% to be computed by the banker’s interest method is usurious. See generally: Comment, Usury: Issues in Calculation, 34 Ark.L.J. 442 (1980).
Appellant Ford Credit next contends that there was no intent to charge excessive interest because Union Lincoln Mercury’s employees had no idea that a change in the first payment date would affect the finance charge. The fact that a clerk did not understand an interest formula does not mean that Ford Credit does not understand the formula.
We have held that the intent required is the intent to charge a certain amount and that if the amount exceeds 10%, there was an intent to charge a usurious rate of interest. Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980). In cases involving manual precalculated interest tables we have stated that an honest error of fact in calculation is not sufficient intent to render a contract usurious. In Sammonds-Pennington Co. v. Norton, 241 Ark. 341, 408 S.W.2d 487 (1966) the creditor looked to an expert for advice on the computation of interest. The expert used “Lake’s Monthly Installment and Interest Tables” but the interest was usurious. We held this to be a mistake of fact as there was no intent on the part of the creditor to charge any amount other than that he was told amounted to 10%. A similar mistake of fact occurred when the chart prepared by Financial Publishing Company of Boston, Massachusetts was in error. Davidson v. Commercial Credit Equipment Corp., 255 Ark. 127, 499 S.W.2d 68 (1973). However in cases such as the one before us, we have held that the creditor made a mistake of law in misapplying a formula. For example, in Holland v. Doan, 228 Ark. 340, 307 S.W.2d 538 (1957), the car dealer used a chart furnished by General Motors Acceptance Corporation and apparently charged interest on the basis of one year, or 52 weeks, when the payments were to be made over only 48 weeks. We held the mistake was one of law in applying the wrong formula because the creditor intended to receive a rate of interest that proved to be usurious. The case now before us is the same. The Chancellor held that in charging 10% interest for a 4-year period while the money was actually loaned for only 3.95 years the appellant intended to receive an amount of interest which proved to be usurious and this, in turn, constitutes intent to charge a usurious rate. We cannot state that the holding of the Chancellor was clearly in error.
Ford Credit next argues that the trial court erred in refusing to estop Hutcherson from asserting the defense of usury.
For eight years Hutcherson, a college graduate, had served as an assistant bank examiner. Only two months before he purchased the car he had attended a seminar on the subject of checking the accuracy of annual percentage rates on consumer loans. He was aware of the Arkansas usury law. A clerk for Union Lincoln Mercury testified that on July 17, she first prepared a non-usurious contract which was never executed. In it, she had a first payment period of 45 days. She then prepared a second contract, the one before us, at the direction of the Union Lincoln Mercury salesman. She did not know the reason for the change. The salesman had a stroke before the trial and was unable to testify. Hutcherson testified that he knew of only one contract. He testified that he did not see the automobile until July 16 and he purchased it on July 17, and signed the only contract he saw on that date. He said he wanted the contract to be payable on the 10th, but he had nothing to do with the interest rate or computing the amounts of the payments. Those items were computed by Union Lincoln Mercury’s title clerk who never talked to Hutcherson.
A debtor may be estopped from asserting the defense of usury when the debtor created the infirmity in the contract in order to take advantage of the creditor. Blanks v. American Southern Trust Co., 177 Ark. 832, 9 S.W.2d 310 (1928).
However, here the trial court did not find that estoppel should be applied. While the circumstances here are suspicious, we must consider the evidence in the light most favorable to the appellee and affirm unless the trial court’s decision is clearly erroneous. ARCP Rule 52. We cannot say the Chancellor was clearly in error.
We find no merit in Ford Credit’s final point that the trial court erred in refusing to reform the contract. Usurious written instruments are subject to reformation where there is mutual mistake, or where there has been a mistake on the part of the lender and fraud or other inequitable conduct on the part of the borrower. Turney v. Roberts, 255 Ark. 503, 501 S.W.2d 601 (1973). There was no mutual mistake in this case and the Chancellor did not find fraud or inequitable conduct on the part of Hutcherson and we cannot state that he was clearly in error. We affirm on this issue.
In his cross-appeal, appellee contends that the court erred in allowing Ford Credit to keep the three payments he made under protest. The Chancellor was correct. There are no statutes on the subject. See Ark. Stat. Ann. Title 68, Chapter 6 (Repl. 1979 and Supp. 1981). The common law rule which we adopted is that only excessive interest is recoverable while principal and lawful interest are not. The reasons are brilliantly set out by Justice Hemingway in Josey v. Davis, 55 Ark. 318, 18 S.W. 185 (1892). There is no showing in this case that any of the money actually paid went to excessive interest. Therefore cross-appellant Hutcherson has not shown he is entitled to a refund.
Affirmed on both appeal and cross-appeal.
Hickman, Purtle and Hays, JJ., dissent.
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George Rose Smith, Justice.
Mrs. Partin brought this action for false imprisonment and slander as a result of having been detained and accused of theft while she was registering for an overnight room at the Ozark Inn in Clarksville. The defendants are the owners and the manager of the motel. The jury awarded Mrs. Partin $1,000 compensatory damages and $2,000 punitive damages. She apparently considers the awards inadequate and seeks a new trial on the ground that the trial court gave two erroneous instructions. The case comes to us as a tort action. Rule 29 (1) (o).
The appellant first complains about the court’s submission of an issue of probable cause to the jury. In explaining the issues the court first defined false imprisonment and then continued with this paragraph:
As a defense to this claim of Plaintiff, Dolly Partin, for false imprisonment, it is contended by the defendants that John Hancock [the motel manager] had probable cause for detaining the Plaintiff, Dolly Partin. A party who asserts the defense of probable cause has the burden of proving this defense.
The plaintiff objected below, and argues here, that there is no common-law right for one private citizen to detain another and that even if such right exists there is no substantial evidence to support a finding of probable cause for detention in this case.
There is a conflict in the parties’ versions of just what happened that night. Mrs. Partin, a resident of Alabama, testified that she was driving through Arkansas on her way to California. When she entered the motel about midnight, without a reservation, she tapped the bell at the desk, but no one appeared. She stepped behind the desk and looked into the adjoining room, but no one was there. As she was about to leave she saw a small sign indicating that the manager was in Room 201. When she knocked on that door, Hancock asked her to wait a minute while he dressed. He emerged shortly and accompanied her to the lobby. He unlocked a side door to get to the lobby. Mrs. Partin remarked that the lobby door was open and she had gone into the lobby.
Mrs. Partin signed a registration card and tendered a traveler’s check in payment. When Hancock opened the cash drawer to make change he discovered that the day’s receipts (about $600) were missing. According to Mrs. Partin, Hancock told her to stand still and said he was going to have to lock her up. He called the police and told them that she had robbed the motel. Hancock then locked the door.
Two police officers arrived within four or five minutes after receiving the call. They testified that Hancock accused Mrs. Partin of the theft and insisted that her purse and her car be searched. Mrs. Partin willingly consented to the searches and satisfied the police of her complete innocence.
Hancock testified that he and his wife were temporarily in Room 201, because the air conditioning in the lobby and their adjoining quarters was not working. He said that the cash drawer at the front desk was kept locked, with the key hanging behind a card on the wall. He denied having accused Mrs. Partin of the theft. His version was that when he discovered that the money was missing, "I told her that since she had been in the office and in the living quarters that she would need to wait and talk to the police, and I turned and called the police.” He admitted having locked the door, but he didn’t think he asked the officers to search Mrs. Partin. As we have indicated, the officers corroborated Mrs. Partin’s version of what happened after their arrival.
We do not agree with the argument that there is no common-law right in one person to detain another. To the contrary, we have said that our statute authorizing a private person to make an arrest upon reasonable grounds for believing that the arrested person has committed a felony “is in affirmance of the common law.” Carr v. State, 43 Ark. 99 (1884), construing Ark. Stat. Ann. § 43-404 (Repl. 1977). By definition an arrest includes a restraint of the person arrested or his submission to restraint; so the authority merely to detain is logically included within the authority to arrest, if that distinction matters.
The requirement of probable cause for a citizen’s arrest arises from an accommodation between two opposing principles. “The law of arrest represents the compromise between two conflicting interests of the highest order — the interest in personal liberty and the interest in apprehension of criminals. It represents one of the most successful efforts of the common law to accommodate itself both to the needs of society and of its individual members.” Harper and James, Torts, § 3.18 (1956).
Probable cause means that the arresting person must “reasonably suspect” the other person of having committed a felony. “It is enough that the circumstances which the actor knows or reasonably believes to exist are such as to create a reasonable belief that there is a likelihood that the other has committed the felony. In such cases, the public interest in the punishment of a felon requires the other’s arrest for the purpose of securing his custody pending investigation.” Restatement of the Law, Torts (2d), § 119, Comment; (1965).
We cannot say that the trial judge should have declared as a matter of law that Hancock had no probable cause for detaining Mrs. Partin. Hancock knew that a theft had occurred and that Mrs. Partin had been alone in that part of the lobby where the cash was kept. He had to make a quick decision whether or not to detain for a few minutes a transient who had had the opportunity to commit the crime. Probable cause, as we have seen, entails a “reasonable” suspicion and a “reasonable” belief. That standard of conduct, like that of the “reasonably” careful person, presents an issue for the jury unless “there is utterly no rational basis in the situation, tesdmonially, circumstantially, or inferentially, for a jury to believe otherwise.” Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962). However unlikely it may now seem that Mrs. Partin would have registered at the motel after having committed a theft, we think it was for the jury to say whether probable cause for the detention was shown. (Of course the jury actually rejected the defense of probable cause, since the verdict was for the plaintiff, but we do not imply that the error would have therefore been harmless if there had been no testimony justifying the submission of the defense.)
In the other questioned instruction the court told the jury:
You are instructed that falsely accusing one of a crime constituted what the law calls slander per se. In such cases, a person slandered is entitled to compensatory damages as a matter of law and such plaintiff is not required to introduce evidence of actual damages in order to recover compensatory damages.
As tendered by the plaintiff, the last clause in the paragraph read, “in order to recover substantial damages.” It is argued that the trial judge should not have modified the instruction by substituting the word “compensatory” for “substantial.”
The modification was proper. We have twice said in opinions that when words are actionable per se, the plaintiff need not prove actual damages in order to recover “substantial” damages. Dunaway v. Troutt, 232 Ark. 615, 339 S.W.2d 613 (1960); Taylor v. Gumpert, 96 Ark. 354, 131 S.W. 968 (1910). There we were using the word “substantial” to mean something more than nominal damages. The award, however, must always be compensatory; so the trial court correctly preferred that term in instructing the jury.
Affirmed.
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Steele Hays, Justice.
On September 13, 1981, the appellant killed Robert Tatum by shooting him repeatedly before several eye-witnesses. Appellant went to the police station and confessed. He was tried by a jury on November 17,1981, found guil ty of first degree murder and sentenced to life. He raises four issues on appeal, none of which have merit.
Appellant first argues that the trial court erred in denying his request for a hearing on a motion to suppress his confession. The trial was set for November 17, 1981 and the motion was made on November 13, 1981. The filing of motions to suppress evidence is controlled by A.R.Cr.P. 16.2. This rule, as amended by our Per Curiam opinion, 273 Ark. 550, 616 S.W.2d 493 (1981) makes it clear that confessions are included under this rule. It also provides, as it did before the amendment, that the motion to suppress be made “not later than ten (10) days before the date set for the trial of the case, except that the court for good cause shown may entertain a motion to suppress at a later time.” In this case the defense attorney had been appointed for several weeks and offered no explanation for the delay. We stated in Speed v. City of Jonesboro, 267 Ark. 1087, 594 S.W.2d 44 (1980) “. . . Rule 16.2 is clear and unequivocal in its requirement that motions to exclude evidence must be made ten days prior to trial, in absence of good cause.” And in Parham v. State, 262 Ark. 241, 555 S.W.2d 943 (1977) where the motion was not filed until a day or two before the trial and no good cause was shown, we held that the motion was correctly denied.
In the appellant’s second point he argues that the trial court erred in overruling his objection to the use of his confession, given, he claims, while he was intoxicated. He argues that both the waiver and the confession were involuntary. For each question we use the same standard for review to determine voluntariness. The matters are considered independently and considering the totality of the circumstances we will not reverse the trial court unless the ruling was clearly erroneous. See Dillard v. State, 275 Ark. 320, 629 S.W.2d 291 (1982).
In addition, the state bears the burden of proving by a preponderance of the evidence that the confession was voluntary, and any conflict in the testimony is for the trial court to resolve. See Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981).
In this case, the appellant got to the police station by himself, and understood the officers’ directions to lie on the floor and to take the gun out of his hand. The officer who obtained the waiver and questioned appellant testified that the appellant understood the waiver, did not appear intoxicated, had control of his faculties, and spoke without slurring his speech. Another officer who witnessed the waiver corroborated this testimony. The officer who questioned appellant did not give him a breathalyzer test because he did not appear drunk. He also testified that during the thirteen years in his capacity as a police officer, he had observed many intoxicated individuals and the appellant did not demonstrate any of the characteristics normally associated with a person under the influence of alcohol. The appellant testified that he did not remember signing any waiver or being interrogated, and argues that all of his friends testified he was drunk. On reviewing the abstracted testimony of the defense witnesses, it appears there was agreement that appellant had been drinking that day but there is conflict and inconclusiveness as to how much and to what extent it had affected his behavior.
In Harvey, supra, the appellant had argued that he had been drinking heavily the night before and was still drunk while in custody. He said he did not remember having his rights read to him at any time. This conflicted with the testimony of the officers who had questioned him and had seen him earlier in the day. One officer had smelled alcohol on his breath but testified he was not drunk. Other than the appellant’s testimony there was no evidence that he was intoxicated. We did not find the ruling in that case erroneous. In Jackson v. State, 273 Ark. 107, 617 S.W.2d 13 (1981) in a similar situation to Harvey, the appellant and another witness testified that appellant was under the influence of drugs, which was in conflict with the testimony of the officers who had questioned him. We found no error after reviewing the “totality of the circumstances in light of the superior position of the trial court to judge the credibility of the witnesses,” Jackson at 110. Following the standards for review that we have stated and applied in prior cases, we do not find error in the trial court’s decision in this case.
The appellant next argues that the trial court erred by giving incorrect instructions to the jury on the defense of voluntary intoxication. As there was no objection to the instruction appellant is raising this for the first time on appeal, and as we have stated many times, we will not consider any error for review unless it has been raised before the trial court by a timely and proper objection. There are exceptions to the rule, but this case does not come within them. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
For his last point appellant argues that the trial court erred in sustaining an objection to defense testimony concerning appellant’s work habits. A fellow employee was called to testify to appellant’s general work record. After describing his general character and abilities as an employee she was asked how many absences he had during the past year and she replied, “one absence.” An objection by the state was sustained. “The trial court has the discretion to determine the relevancy of evidence and its admissibility. This court will not overturn that discretion absent a clear abuse of discretion thereof.” Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980). We cannot say that there was a clear abuse of discretion in sustaining the objection that the appellant’s general work record was not relevant to the case, nor could we say that in any event, the appellant was prejudiced by the objection. The testimony was not excluded, nor was the jury admonished to disregard it. Also, the appellant made no proffer of additional testimony that may have resulted in prejudice to him because of its exclusion. Failure to make such a proffer precludes review on appeal. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978).
The judgment is affirmed.
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Steele Hays, Justice.
Appellant was tried on May 11, 1980 on charges of rape, aggravated robbery and attempted capital murder. The jury convicted him of rape and acquitted him of aggravated robbery. It was unable to reach a verdict on attempted capital murder and that charge was nol-prossed.
Almost one year later, on May 5, 1981, appellant filed a pro se motion for a transcript of the trial in order that he might perfect an appeal. The public defender was appointed and moved orally that the petition be treated as a petition for post conviction relief under A.R.Cr.P. Rule 37. However, there seems to have been a misunderstanding as to whether it became a motion under Rule 36 for a belated appeal, or a Rule 37 petition based on allegations of ineffective assistance of counsel during the trial. As a consequence, the record presents a confusion of substantive and procedural issues.
Appellant’s proof was directed at both points, but we can disregard the Rule 37 claim of ineffective assistance of counsel at trial, as the evidence was wholly lacking. The trial court denied the Rule 37 petition and no argument on that score is now raised. However, appellant also claimed he told his trial attorney that he wanted to appeal and wrote him several times to that effect. Testimony by appellant’s attorney and appellant’s wife, who acted as a go-between, suggested that appellant was undecided as to whether to appeal, not wanting to risk a second trial on two charges carrying life sentences in view of the single twenty-five year sentence he received.
On the issue of whether appellant was deprived of effective assistance of counsel in perfecting an appeal, the trial judge noted that he had no authority to grant a belated appeal and declined to reach that issue. It is from that ruling that appellant appeals.
The trial judge’s comment that the trial courts are without authority to grant belated appeals is entirely consistent with what we have said in several opinions — that motions for belated appeal should be filed in the Supreme Court. Ellis v. State, 276 Ark. 560, 637 S.W.2d 588 (1982); Hamman v. State, 270 Ark. 307, 605 S.W.2d 6 (1980); and Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979). However, there is some confusion as to whether this court or the trial court is the proper tribunal. Appellant cites Osbourne v. State, 276 Ark. 479, 637 S.W.2d 535 (1982) and the wording of Rule 36.9 in support of his contention that the trial court is the proper place to file his motion for belated appeal. In Osbourne v. State we affirmed an order of the trial court granting a motion for a belated appeal which was filed initially in the trial court. The procedural issue was not discussed in Osbourne, we simply affirmed the trial court’s order without commenting on whether the motion was improperly filed.
Appellant also cites Rule 36.9, as amended December 18, 1978, as applying concurrent jurisdiction:
However, no motion for belated appeal shall be entertained by the Supreme Court unless application has been made, either to the Supreme Court or the trial court, within eighteen months of the date of commitment. (our italics)
But the purpose of the amendment was not to change the procedure so as to permit motions for belated appeal to be filed in either court, but merely to set a time limit for the filing of such motions, irrespective of where they originated.
In spite of the inference created in Osbourne v. State, the fact remains that under our law motions for belated appeal are filed, not in the trial court under Rule 37, but in this court under Rule 36.9, which reads in part:
The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit, (our italics)
We have said as much in two opinions since Osbourne and we adhere to that view. Ellis v. State, supra, and Hammon v. State, supra.
Since the trial court was clearly correct in its conclusion that only the Supreme Court has authority to grant a belated appeal, we must affirm its decision. The affirmance is without prejudice, however, to appellant’s filing a motion for belated appeal in this Court, in which case we will likely remand to the trial court for an evidentiary hearing on the disputed issues of fact. See Schuster v. State, 261 Ark. 730, 551 S.W.2d 210 (1977).
Affirmed.
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Darrell Hickman, Justice.
This is an original action by the petitioners seeking an injunction to prohibit the Secretary of State from certifying a proposed constitutional amendment as valid. John F. Wells, individually, and Independent Voters of Arkansas, Inc., were allowed to intervene as petitioners and they raise issues other than the validity of the ballot title. Ratepayers Fight Back, representative of several Arkansas organizations, has been allowed to intervene as respondent. Another lawsuit on this matter, filed by Wells in the Pulaski Chancery Court, and before us on appeal, has been consolidated with this case.
The proposed constitutional amendment by its popular name is “The Arkansas Utility Regulation Amendment” and has been filed with the Secretary of State as an initiative petition to amend our present constitution in compliance with Amendment 7 to the Arkansas Constitution. There are other issues raised besides the sufficiency and validity of the ballot title, but it is unnecessary to dwell on those because we find the ballot title fails to meet the standards required and those issues, therefore, are moot.
The Secretary of State will be enjoined from placing this proposal on the ballot in the 1982 November General Election.
The proposed amendment itself is a comprehensive, technical, lengthy, and detailed document that runs to some 8,500 words. It first provides for the election of Public Service Commissioners who are now selected by appointment. After that simple initial proposal, however, the amendment becomes comprehensive, detailed legislation, dealing with many specific instances of the regulation of certain public utilities. It is a document of flowing general statements of power and policy followed by lengthy detailed expositions that are usually found in the small print of statute books or legal documents. It speaks to various technical practices in the regulation of utilities such as fuel adjustment charges and time-of-day tariffs. It is peppered with references to existing state and federal laws.
The amendment proposes to create a new government entity, the Ratepayers Utility Board, “to promote the health, welfare, and prosperity of all citizens of this state by ensuring effective and democratic representation of individual residential utility consumers, individual farmers, and small business firms before regulatory agencies, the legislature, and other public bodies.” This proposed Board will be managed and directed by a Board of Directors consisting of seven people appointed by the executive branch of government. But those appointments are quite limited. The Governor appoints one person from nominees made by “at least three environmental organizations having a statewide membership and from coalitions of such groups . . .” The Lieutenant Governor appoints an individual that is a nominee recommended by organized labor in Arkansas. The Attorney General appoints an individual “from at least three nonprofit consumer organizations having statewide membership...” The Auditor’s one appointee is nominated "from at least three retirement/elderly organizations having statewide membership . . .” The Treasurer appoints an individual nominated “from at least three organizations of low-income persons. . .’’The Secretary of State’s appointee must represent businesses in Arkansas “which sell, distribute or manufacture materials and/or equipment used for, or provide services related to energy conservation purposes or the production of energy through the use of renewal energy resources.” The Land Commissioner will appoint one person representing “small retail businesses and small family farms.” This information is not in the ballot title.
The Board would be funded through revenues raised by imposing a .4 mill tax or fee on the gross annual revenues of certain utilities — undoubtedly at the expense of all consumers, but that is not explicit. The ballot title does disclose a .4 mill assessment will be made but it does not disclose that the proposed Board will be totally independent of any other branch of government; that the General Assembly shall have no authority at all to legislate regarding the powers, duties or functions of this Board or the expenditure of funds received by the Board. This change of constitutional law is not disclosed. It is not just another government agency or board but it will be a department of government subject only to the control of the board members that are appointed.
We have no quarrel with the general ideas or principles proposed in the amendment; their novelty or uniqueness is irrelevant. The voters of this state essentially have, within constitutional limits, a right to change any law or any provision of our Constitution they deem appropriate through Amendment 7 to the Constitution.
If the voter knows the extent and import of such a proposal, it is the voter’s decision, not ours, as to the wisdom of the proposal. But at the same time the voters have placed on this court the duty and responsibility to see that when they vote that change, or decline to vote that change, especially one to alter their constitution, they are allowed to make an intelligent choice, fully aware of the consequences of their vote. And it is our duty to see that the individual voter has available a sufficient ballot title when deciding to accept or reject the amendment. It must permit an intelligent and knowledgeable decision to be made. The legal question is whether in the voting booth the voter can be able to exercise the decision to vote for or against the proposal based on the ballot title. We have recognized that “The great body of electors, when called to vote for or against an act at the general election, will derive their information about it from the ballot title. This is the purpose of the title.” Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958).
In Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952), we stated:
It is the function of the ballot title to provide information containing the choice that he is called upon to make. Hence the adequacy of the title is directly related to the degree to which it enlightens the voter with reference to the changes that he is given the opportunity of approving.
The principles we use in deciding whether the ballot title is sufficient and valid are clear. In Bradley v. Hall, supra, we said:
Our decisions upon the sufficiency of ballot titles have been so numerous that the governing principles are perfectly familiar. On the one hand, it is not required that the ballot title contain a synopsis of the amendment or statute. Sturdy v. Hall, 204 Ark. 785, 164 S.W.2d 884. It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law. Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356, 44 S.W.2d 331. We have recognized the impossibility of preparing a ballot title that would suit everyone. Hogan v. Hall, 198 Ark. 681, 130 S.W.2d 716. Yet, on the other hand, the ballot title must be free from ‘any misleading tendency, whether of amplification, of omission, or fallacy,’ and it must not be tinged with partisan coloring.
Furthermore, we have said that we give a liberal construction to Amendment 7 in determining the sufficiency of the ballot title. Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980).
But that does not mean that liberality knows no bounds or common sense has no place in the matter. While neither the length nor complexity of the ballot title should be a controlling factor, it is a consideration. The great majority of Arkansas voters are limited, as a practical matter, in the amount of time that can be spent considering such a proposal. Furthermore, common sense requires that we ask whether the average voter can make an intelligent considerate decision based on the ballot title. In Newton v. Hall, 196 Ark. 930, 120 S.W.2d 364 (1938), we noted that the length of the title could be a serious objection because the law recognizes that an elector’s time is limited in occupying a voting booth.
We have concluded that the proposed ballot title is so complex, detailed, lengthy, misleading and confusing that the Arkansas voter cannot intelligently make a choice based on the title. The best evidence of that is the ballot title itself. We attach the ballot title as an addendum to this opinion and invite any disinterested person to read it in the time one would ordinarily use in a voting booth, and understand the changes that the amendment proposes. We are convinced only a lawyer or an expert in utility law and regulations might do that. The rest of us would have to guess as to the effect a vote will have, or have faith in the proponents of the amendment. Placing the voter in such a posture is impermissible.
In our view the critical defect of the ballot title is the misleading aspects. The ballot title is certainly misleading regarding the power of the Ratepayers Utility Board. The ballot title says its purpose is to “represent and advocate the interests of residential and small business utility customers” and similar language is contained throughout the act. But the ballot title does not tell the voter the interests of the seven people who will direct that Board and that is an important fact since their interests may not necessarily coincide with those of the majority of the residential and small business customer. The majority of the board members will be chosen from nominees of organizations whose interests may be in conflict with those of the majority of the residential and small business customer. Nominees of organized labor, environmental organizations, retirement/elderly organizations and organizations of people with low incomes will constitute a majority of the Board. The voter, who is a residential or small business consumer, has a right to know that these interests can direct and control the Board which is supposed to represent and advocate the interests of residential and small business consumers. Actually, the small business consumer may not even be represented because the Land Commissioner makes only one appointment to represent “small retail business and small family farms.”
The fact that the Ratepayers Utility Board will be a new government entity or department subject to no control or check at all by any of the existing branches of government is not disclosed or referred to. The General Assembly is the first arm of government representing the people, and the voter has a right to know when a new entity or department of government is created that will not be subject to existing constitutional controls granted to that body. Indeed, it appears that the Board itself, elected by no one and responsible to no one, will decide how the Board’s power will be used and whose interests will be served. In these regards the ballot title does have a tendency to be misleading and is not free from partisan coloring. See Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1956).
No doubt the sponsors of the proposal have made a good faith effort to present a brief, fair and objective ballot title available on this complex, far-reaching amendment. But in our judgment the ballot title does not meet the standards as we have explained.
Injunction granted.
Purtle and Hays, JJ., dissent.
ADDENDUM
Popular Name.
“The Arkansas Utility Regulation Amendment”
Ballot Title.
An amendment to the Constitution of Arkansas to establish an elected Public Utilities Commission, create a Ratepayers Utility Board, restrict utility collection of rates under bond, regulate long-term utility planning and investment, abolish the use by investor-owned electric utilities of automatic fuel adjustment charges and prohibit all electric utilities from implementing mandatory time-of-day rates by:
Providing for statewide election of three public utilities commissioners beginning at the general election of 1984; establishing commissioner salaries, terms and conditions of service; providing that the Governor, on or after January 14, 1983, appoint three commissioners to serve until the first elected commissioners take office; exempting the Commission and its staff from executive branch hiring freezes and from state laws governing employee classification and compensation systems and requiring the Commission to establish its own such system; restricting employment and financial dealings between utilities and commissioners or Commission employees; and requiring monthly disclosure of campaign contributions of $50.00 or more;
Creating a non-profit corporation to be known as the “Ratepayers Utility Board” (RUB) to represent and advocate the interests of residential and small business utility customers before the Commission and other governmental bodies; requiring constitutional officers of the Executive Department to appoint from designated constituencies directors of the RUB; providing that the RUB be funded through the direct assessment of a .4 mill ($.004) on the gross annual revenues of every utility regulated by the Commission; authorizing the RUB to communicate with utility customers through the monthly billing statements of utilities; establishing the powers and duties of the RUB; and establishing conflict of interest restrictions for RUB officials;
Prohibiting utilities from collecting rates under bond, except in specified emergenies or if the Commission has failed to rule on a rate application within 12 months; providing that in no case may the utility collect two sets of rates under bond simultaneously and that in any case the Commission shall determine the rates to be collected under bond; requiring that all rates found unlawful be refunded with interest; and allowing for direct appeal of Commission orders to the Arkansas Supreme Court, provided that the Court may not suspend rates allowed or refunds ordered by the Commission.
Requiring electric, gas, and telephone utilities to file annually with the Commission ten-year plans for meeting demands for utility services; requiring regular Commission hearings to determine actions utilities shall take to implement the lowest-cost plans; empowering the Commission to order the utility to delay, cease, or redirect investments not in the best interests of the utility and its customers and to reduce the rate of return allowed the utility if the Commission finds the utility made imprudent investments; limiting the inclusion of construction work in progress expenditures in an investor-owned utility’s rate base; requiring the Commission to establish a division of forecasting and planning; requiring Commission approval before utilities may pass through to ratepayers any costs of power plants situated outside Arkansas with which an Arkansas utility is associated; requiring Commission approval before an electric utility may sell, transfer or dedicate any interest in major generating facilities; and requiring the Commission to stay its final decision on any application to build a major generating facility, if such application was pending on or filed within two years after the effective date of this Amendment, until the Commission has issued an order on the utility’s ten-year plan;
Prohibiting the use by investor-owned electric utilities of an automatic adjustment to rates for fuel and purchased power expenses; providing that the Commission may not adjust such expenses more frequently than one every six months, except on an emergency basis; prohibiting the use of estimted fuel and purchased power expenses in setting rates; prohibiting the recovery from ratepayers of fuel and/or purchased power expenses which result from the failure of major generating facilities to achieve reasonable operating efficiency standards which shall be set by the Commission; and prohibiting the use of mandatory time-of-day tariffs by electric utilities;
Providing that the provisions of this Amendment are severable, that this Amendment repeals all other laws in conflict with it, that the General Assembly shall make appropriations required for the effectuation of this Amendment, that the General Assembly by a two-thirds vote of both houses may amend specified provisions of this Amendment; and for other purposes.
The limit of time a person may use to vote in a voting machine is three minutes, Ark. Stat. Ann. § 3-1221 (Repl. 1976); otherwise it is five minutes. Ark. Stat. Ann. § 3-1222 (Repl. 1976).
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Kirby, J.,
(after stating the facts). Appellant contends that the Pulaski Probate Court was without jurisdiction to make the order of adoption, since the child, as a matter of fact, was living at the time in Lonoke County. The petition, however, states that the child is a resident of Pulaski County, as well as the petitioners who desired his adoption; that his name is unknown, and could not be ascertained, and that his mother was dead, and his father’s whereabouts unknown.
The court found from the testimony of more than two competent witnesses that such was the fact. It was obvious that the name of the child could not be stated in the petition, since no one knew the name of its mother, who was dead, the woman who delivered the baby to the probation officer not disclosing it, and denying that she had any knowledge of the identity of the father, if living. It was not necessary therefore that the name of the child be set out in the petition, which was a sufficient compliance, under the circumstances, with the requirement of the statute. Crawford & Moses’ Digest, §§ 252-256.
Even though it was a fact that the baby had been in the home of the petitioners in Lonoke County when they presented their petition for his adoption, it can make no difference, since he had been delivered to them temporarily by the probation officer of Pulaski County, who was entitled to his custody; and, whether the residence of the child would, in legal contemplation, be that of the probation officer of Pulaski County, which is doubtless true under the circumstances, can make no difference, since the petition itself alleged that the child was a resident of Pulaski County at the time of the adoption, and as recited in the order, which allegation gave said probate court jurisdiction and cannot be disputed aliunde. Avery v. Avery, 160 Ark. 375, 255 S. W. 18.
The testimony of the two witnesses that the residence of the father of the infant was unknown dispensed, of course, with the statutory requirement that he should appear in open court and give consent to the order, and, had there been no such testimony, the jurisdiction of the court did not depend on such evidence nor its recital in the record, and, while the making of the order of adoption without such proof might be error and furnish ground for setting aside the order of adoption on the petition of the child’s father, neither the petitioners on whose petition the order was made nor any one claiming through either of them, as appellant does, would be allowed to object to the judgment on 'that ground. Coleman v. Coleman, 81 Ark. 7, 98 S. W. 733.
No error is found in the record. The judgment is affirmed.
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Humphreys, J.
Cases Nos. 9800 and 9816 have been consolidated, since the legal question involved in each is identical.
Case No. 9800 arose out of an application on March 26, 1926, by the Independent-Bus Lines, Incorporated, to the Arkansas Eailroad Commission for a permit to operate a motor bus line on certain roads leading out of Helena, over which the Messino Bus Company was operating a motor bus line under a certificate of public convenience and necessity issued to it by the Eailroad Commission. The Messino Bus Company intervened and contested the right of the applicant to a permit on the ground that additional bus service was not necessary on said highways. The petition was heard and denied, from which order of denial an appeal was prosecuted to the circuit court of Pulaski County. On May 15, 1926, the appeal was heard in the circuit court, and a judgment was rendered setting aside the order of the Eailroad Commission, from which an appeal has been duly prosecuted to this court.
Case No. 9816 arose out of an application on March 13, 1926, by the Caddo Transfer & Warehouse Company to the Arkansas Railroad Commission for a permit to operate a motor bus line over certain public highways in Union and Ouachita counties, Arkansas, over which J. P. Looney was operating a motor bus line under a certificate of public convenience and necessity issued to him by the Railroad Commission. Notice of the application was given to J. P. Looney, who appeared and contested the applicant’s right to a permit on the ground that additional motor bus service was not necessary on said highways. Upon a hearing of the cause the Commission entered an order denying the application, from which an appeal was taken to the Pulaski Circuit Court, Second Division. On May 3Í, 1926, the appeal was heard and a judgment was rendered setting aside the order of the Commission, from which an appeal has been duly prosecuted to this court.
The record reflects that the Independent Bus Line, the Messino Bus Company, the Caddo Transfer & Warehouse Company and J. P. Looney had complied with the rules .and regulations. of the Arkansas Railroad Commission, and that it refused permits to the Independent Bus Line and the Caddo Transfer & Warehouse Company to operate motor bus lines upon the highways designated in the respective petitions because it had theretofore "ranted permits to the Messino Bus Company and J. P. Looney to operate motor bus lines over practically the same route and under the same schedules, and that the public convenience and necessity did not require the service of additional companies. •
In refusing the permits, the Arkansas Railroad Commission was guided by the following rule it had theretofore promulgated:
“No person or motor transportation company shall hoa’in to operate any motor-propelled vehicle for the transportation of persons or property, or both, for com pensation between fixed termini or over a regular or irregular route in this State, without first obtaining from the Railroad Commission a certificate declaring that a public convenience and necessity require such operation.”
The applicants challenged the authority of the Railroad Commission to promulgate such a rule or to deny them the privilege of operating motor bus lines over the highways in question. The circuit court sustained the contention of the applicants. The sole question therefore presented by this appeal is whether the Legislature ever granted authority to the Arkansas Railroad Commission to issue permits or certificates of public convenience and necessity to individuals, partnerships or corporations to operate motor-propelled vehicles to transfer persons or property for compensation over the highways of the State. This is the very question which this court reserved for future decision in the case of Kinder v. Looney, 171 Ark. 16, 283 S. W. 9. If the Arkansas Railroad Commission has such authority, it was conferred by § 5, act 124, Acts of 1921, which is as follows:
“The jurisdiction of the commission shall extend to and include all matters pertaining to the regulation and operation of all common carriers.”
It was said in Kinder v. Looney, supra, that “the statute under consideration in this case does not confer express authority upon the Arkansas Railroad Commission to establish a rule that no automobile transportation company shall operate for the transportation of persons for hire over a regular route in this State without first having obtained from the Commission a certificate declaring the public convenience and necessity require such operation.” It follows then, that, if such authority exists in the Railroad Commission, it is by necessary implication from language used in the statute. The language is not broad enough to justify the implication. “Regulation and operation” does not import the right of denial or the right to grant an exclusive franchise or permit which, in effect, involves a denial to some. “Regulation” is not synonymous with “prohibition,” and a delegation of the authority by. the Legislature to regulate does not imply authority to prohibit. Tuck v. Waldron, 31 Ark. 462; Swaim v. Morris, 93 Ark. 363, 125 S. W. 432; Little Rock v. Reinman, 107 Ark. 174, 155 S. W. 105; Bryan v. Malvern, 122 Ark. 379, 183 S. W. 957; Incorporated Town of Paris v. Hall, 131 Ark. 134, 198 S. W. 705; North Little Rock v. Rose, 136 Ark. 298, 206 S. W. 449. We think the Legislature never intended for such an implication to be drawn from the language used in the statute, for the reason that the act in which the section appears specifically repealed § 13 of act 571 of the Acts of 1919, which conferred authority on the Arkansas Corporation Commission (now abolished) to grant certificates of convenience and necessity to public service corporations. The specific repeal of such power indicates very clearly that the Legislature had no intention of again conferring the power upon the new body through inference or implication.
No error appearing, the judgments are affirmed.
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Smith, J.
Appellee recovered judgment against the appellant railroad company for $2.5 damages for killing a •dog owned by him, and the railroad company has appealed.
For the reversal of the judgment it is insisted that there was no testimony showing that the dog was killed by the railroad company, and that the court erred in giving certain instructions and in refusing others, and in the admission of certain testimony.
On behalf of appellee a section-hand employed by the railroad testified .that he lived near the railroad track, and that, during the night, he heard a dog howling on •the track. The next morning appellee’s dog was found dead between the rails of the track. The dog did not appear to be mutilated, but blood had run out of its mouth or nose, and appellee testified that he examined the place where the dog was found, and discovered some blood and hair on the track.
An instruction was asked by the railroad company to the effect that appellee could not recover anything for the dog unless he had assessed it for taxation, and, in another instruction, the court, was asked' to tell the jury that the failure to assess the dog was a circumstance to be considered in determining whether the dog was valuable or worthless.
. The first of these instructions was properly refused, because, as was said in the case of El Dorado & Bastrop Ry. Co. v. Knox, 90 Ark. 1, 117 S. W. 779, “the fact that the dog was not assessed did not prove that the dog was of no value, especially when the undisputed evidence shows that the dog was valuable.”
The other instruction was properly refused because it singled out a circumstance which the jury was told to consider for a particular purpose. Such instructions are always objectionable and should never be given.
An instruction was asked to the effect that the railroad company was under no duty to keep a lookout for dogs on the track. "We have held otherwise. Holloman v. Mo. Pac. Rd. Co., 170 Ark. 573, 280 S. W. 22.
Other instructions requested by the railroad company which were refused were to the effect that, even though the dog was found dead on the track, it must also be shown that the dog was struck by a train, and that the striking and death of the dog was due entirely to the negligence of the railroad company; and that, if the dog went upon the track at a time and place when and where those in charge of the train could not and did not discover its presence in time to avoid striking it, the verdict should be for the railroad company, even though the dog was killed by a train.
The appellant railroad company asked an instruction numbered 6, and excepted to the refusal of the court to give it. This instruction reads as follows: “You are instructed that the fact that a dog was found upon defendant’s tracks raises no presumption of negligence against the defendant, and the burden is upon the plaintiff to prove by a fair preponderance of the proof that said dog was struck by defendant’s train or engine.”
The court gave, over the objection of appellant, an instruction numbered 2, which reads as follows: “You are instructed that, when an animal is found on the railroad track, dead, and the circumstances of the killing are sufficient to show that said animal was killed by the operation of a train, the burden is upon the railroad company to show that such animal was not negligently killed, and, if it fails to do this by a fair preponderance of the evidence, it would be liable for such killing.”
We think it will sufficiently appear from the discussion of instruction numbered 6, which was refused, and instruction numbered 2, which was given, that no error was committed in refusing to give the other instructions just referred to. ■
There was no presumption that the dog was killed by a train because it was found dead on the track, and instruction numbered 2 does not state that there was any such presumption. The burden was -upon appellee to show that the dog was killed by a train. It was not essential, however, that this fact be established by an eye-witness. This ivas a fact which might have been established as a reasonable and probable inference from other facts disclosed by the testimony. Here a dog was heard howling during the night on the railroad track. It is true the witness who testified to that fact did not testify that he heard a passing train at the time, but he did testify that trains ran by his house that night. The dog was found dead between the rails, and, -while not mutilated, blood had run from the mouth or nose of the dog. Near the same place where the dog’ was found, blood and hair were also found. We think these circumstances warranted a finding by the jury that a train struck the dog. Instruction '2 left the question to the jury whether the circumstances were sufficient to show that the dog was killed by a train. That fact being found affirmatively, the instruction declared the burden was then cast upon the railroad company to show that such animal was not negligently killed, and, if it failed to do so, it would be liable for killing the dog. The law has been so declared in numerous decisions of this court.
Having proved facts and circumstances from which the jury found that a train had killed the dog, the plaintiff had made a prima facÁe case, and was not required to show that this had been negligently done. The court was correct therefore in refusing to charge that appellee was required to show that the death of the dog’ was due to the negligence of the railroad, company. If a train killed the dog, no explanation of the killing was made. The court was correct therefore in refusing to charge the jury that, if the dog came upon the track at a time and place when those in charge of the train could not and did not discover its presence in time to avoid striking it, to find for the defendant railroad company. No such defense was made, and there was no testimony upon which to predicate the instruction.
The instruction on the measure of damages told the jury that, “if you find from a fair preponderance of the evidence in this case that the defendant company negligently killed the plaintiff’s dog by the operation of one of its trains, your verdict should be .for the plaintiff,” and the jury was directed, upon making that finding, to assess the damag’es at the market value of the dog.
A fair interpretation of the instruction given is, we think, that the jury was required to find that a train killed the dog, but that, if this fact were found from the circumstances in proof, the burden then devolved upon the railroad company to show that it was not negligent in striking the dog, and no attempt was made to show how the dog was struck. This being true, there was no error in refusing to give instruction numbered 6, set out above.
Several witnesses testified as to the market value of the dog, and no one placed it a.t less than $25. One witness testified that similar dogs sold in a nearby town for $50. This testimony was not improper in aiding the jury to determine what the market value of the dog was at the time and place it was killed.
No error appears, so the judgment is affirmed.
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Wood, J.
On January 5, 1918, Gleason Brothers executed a note to John Gavin in the sum of $418.40, with interest thereon at the rate of ten per cent, per annum until paid. John Gavin died, and W. L. Gavin was appointed administrator of his estate. On the 13th of September, 1923, the administrator recovered judgment against J. EL and W. J. Gleason, members of the firm of Gleason Brothers, in the sum of $657.30. Long prior to this time, to-wit, on the 6th of April, 1921, J. H. Gleason executed to Nancy C. Gleason, his wife, Jerry G., Luther EL, Floy, and George G. Gleason, his children, a deed to 455.74 acres of land in Yell County, Arkansas, and also a part of a block in the town of Dardanelle, Yell County, Arkansas. The deed recites that it was executed for a consideration of $1 and love and affection.
On the 13th of November, 1923, this action was instituted by W. L. Gavin, administrator of the estate of John Gavin, deceased, against the estate of J. EL Gleason and the widow and children of J. El. Gleason, to set aside the above deed and also a deed of Nanny C. Gleason, dated' January 31, 1922, to Jerry G. Gleason. EL C. Scott was appointed administrator ad litem for the estate of J. EL Gleason and guardian ad litem for the minor children. Et was alleged in the complaint that these deeds were voluntary conveyances, and that they were fraudulent and void as against the judgment in favor of the estate of John Gavin. An amendment was later filed to the complaint in which it is alleged that an execution had been issued on the above judgment and placed in the hands of Joseph Gault, sheriff of Yell County, and that the sheriff had failed to levy such execution prior' to the death of J. H. Gleason, and, after such death, that the sheriff declined to levy on the lands described in the original complaint. The plaintiff prayed that the sheriff be made a party and that an order be issued commanding him to levy on the lands described in the complaint. An answer was filed by the administrator ad litem of the Gleason estate and as guardian ad litem for the minor heirs of J. H. Gleason. The execution of the deed in controvérsy was admitted, but the defendant denied that it was fraudulent and void as to the plaintiff. The defendant Gault answered and alleg*ed that he did not levy the execution on the lands put in his hands by the attorney for the plaintiff for the reason that, upon investigation, he ascertained that these lands had been deeded to other persons, and that the record showed that the lands were not the property of the defendant in the execution, and for the further reason that the defendant in execution had died after the execution came into his hands.
The plaintiff introduced a certified copy of the judgment mentioned in the complaint and the deed in controversy. Gault testified that he was the sheriff of Yell County, "and that he made the return on the execution placed in his hands by the plaintiff’s attorney, “that no property clear of mortgage was found in the name of J. H. Gleason upon which to levy the same.” As far as he was able to find from the records, J. H. Gleason, at that time, was insolvent. Gleason lived two or three days after he received the execution. He had been sick for two years before that time. We deem it unnecessary to set out all the testimony bearing upon the issue as to whether or not J. H. Gleason was insolvent at the time the deed in controversy was executed. It suffices to say that the uncontroverted proof shows that, at the time this deed was executed, the firm of which Joseph. H. Gleason was a member had contracted debts, and, among them, the debt to John Gavin, the foundation of this action, which had not been paid. An action had been instituted to foreclose a mortgage on one of their debts in the sum of more than $9,000, and there were also other debts, unsecured, outstanding at that time. Efforts, at that time, had been made and were being made to cob lect the debt to John Gavin, but without success. J. H. Gleason offered to pay one-half of the note if he could be released from liability for the other half. Thus the note, at the time of the execution of the deed in controversy, remained unpaid.
While there was testimony on the part of the defendants tending to show that, at the time the deed in controversy was executed, J. H. Gleason had sufficient assets to pay all of his indebtedness, nevertheless the debt in controversy was not paid-, and the execution of this deed left J. H. Gleason without sufficient property to pay the debt to John Gavin. His own son testified that there was no unincumbered land belonging to the estate of J. H. Gleason; that there was no unincumbered personal property belonging to the estate, and no personal property belonging to the firm of Gleason Brothers, and none belonging to the firm of J. H. Gleason & Son. “He (J. H. Gleason) didn’t have any estate at the time of his death,” says the witness. It thus appears that J. H. Gleason, at the time of the execution of the deed in controversy, was an embarrassed debtor. The debt his firm owed to John Gavin was at that time an existing indebtedness. The debt had been contracted by the firm of Gleason Brothers in 1918. By the execution of this deed, as is shown by the undisputed testimony, J. H. Gleason rendered himself wholly insolvent.
In Wilks v. Vaughan, 73 Ark. 179, 83 S. W. 915, we said: “It is thoroughly settled in equity jurisprudence that conveyances made to members of the household and near relatives of an embarrassed debtor are looked upon with suspicion and scrutinized with care, and when they are voluntary they are prima facie fraudulent, and when the embarrassment of the debtor proceeds to financial wreck they are presumed conclusively to be fraudulent as to existing creditors. ’ ’ Other cases announcing the doctrine are McConnell v. Hopkins, 86 Ark. 225, 110 S. W. 1039; Brady v. Irby, 101 Ark. 573, 142 & W. 1124, Ann. Cas. 1913E, 1054; Papan v. Nahay, 106 Ark. 230, 152 S. W. 107; Simon v. Reynolds-Davis Gro. Co., 108 Ark. 164, 156 S. W. 1015; Burke v. New England National Bank, 132 Ark. 268, 200 S. W. 1018; Farmers’ State Bank v. Foshee, 170 Ark. 445, 280 S. W. 380.
The above rule does not apply in favor of subsequent creditors, nor creditors whose debts, at the time of the conveyance, are secured. The latter are in the same category as subsequent creditors, for the reason that it will be presumed, and must be assumed, that creditors whose debts are secured will be fully paid when their security is resorted to, and, if there be a deficit, this is treated as in the same attitude as a subsequent debt. Home Life & Accident Ins. Co. v. Schichtl, ante p. 31.
Gavin’s debt was unsecured, and he was an existing creditor at the time of the conveyance in controversy, and the undisputed testimony shows that Gleason, at the time of the conveyance, even if not insolvent, was an embarrassed debtor, and the conveyance rendered him thereafter wholly insolvent. Therefore the court erred in not holding that the conveyance in controversy was conclusively fraudulent as to Gavin. The decree is reversed, and the cause is remanded with directions to the trial court to enter a decree setting aside the conveyance, in so far as it affects the rights of Gavin, and to subject the property conveyed to the payment of his judgment, and for such other and further proceedings as may be necessary, according to law and not inconsistent with this opinion.
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Smith, J.
This 'is the second appeal in this case, and, in the opinion reported on the former appeal, which appears in 165 Ark. 263, will he found a statement of the facts out of which the litigation arose. The suit was brought by the Interstate- Jobbing Company to enforce against appellee, as president of the Farmers’ Mercantile Company, a domestic corporation, the liability prescribed by § 1715, C. & M. Digest, for failure to file the annual corporate report required by that section.
Defendant Velvin became president of the corporation on January 1, 1921, and was president thereof during the remainder of that year. The corporation was indebted to appellant, the plaintiff below, on January 1, 1921, in the sum of $367.10, and, during that year, bought more goods amounting to $471.75, and made payments on account during that year amounting to $350.
At the first trial plaintiff asked .an instruction which, after defining the duty of certain corporate officers to file reports, directed the jury, if this duty had not been performed, to return a verdict for it “for whatever amount of accounts, if any, you find were contracted by the Farmers’ Mercantile Company with the plaintiff herein, after the failure to file the report required by law.” The court modified this instruction by adding “less whatever sum, if any, you may find, from a preponderance of the evidence, the Farmers’ Mercantile Company paid to the plaintiff during the year 1921.”
The instruction was modified on the theory that payments made in 1921 should be credited on the items purchased during that year, although there had been no application by the debtor of these payments to the items purchased during that year. We held this modification was erroneous, for the reason that, the debtor having failed to direct the application of the payments, the creditor had the right to apply the payments to the older items of the account, as had been done in the account sued on.
The cause was remanded for a new trial, but there was no amendment of the pleading’s; and the answer upon which the case went to trial contained only a g'eneral denial of the allegations of the complaint. After the jury had been impaneled to try the case and the plaintiff had made a statement of the case, counsel for defendant, in stating his defense, said that an agreement had been made between the secretary of the Farmers’ Mercantile Company and the plaintiff whereby any payments made in 1921 should be applied to any purchases made during that year. Thereupon counsel for plaintiff objected to the statement, for the reason that the answer had set up no such defense, and, when this objection was overruled, a continuance was then asked upon the ground of surprise, which motion was also overruled, to which action plaintiff duly excepted. Thereafter, by appropriate objections, both to the admission of testimony and to the giving of instructions, plaintiff preserved its exceptions to the submission of this special plea to the jury.
It appears therefore that, at the first trial, the defendant sought to have the payments made by the corporation in 1921 credited to the 1921 purchases, as a matter of law, without alleging or attempting to prove any agreement or direction to that effect; while at the second trial defendant asked that this be done because of an agreement to that effect.
It will be remembered that, although the suit was commenced in 1922 and had been pending in court for several years, the answer contained no reference to this agreement, and we are therefore of the opinion that the court should have denied defendant the right to present this special plea under the circumstances, or, having’ granted this right, should, by continuing the case, upon such terms as were thought proper, have afforded plaintiff an opportunity to meet the plea.
This new defense was in the nature of a plea of payment of a portion of the account, for which defendant would otherwise be liable, and it is a rule of pleading well settled by the decisions of this court that, where there is no plea of payment, proof thereof is inadmissible. Robinson v. Woodson, 33 Ark. 307. In the ease of Jarvis v. Andrews, 80 Ark. 277, 96 S. W. 1064, it was held that evidence tending to prove payment of the note in suit was properly excluded in the absence of a plea of payment. See also Hays v. Dickey, 67 Ark. 169, 172, 53 S. W. 887. Cases cited in the notes to 30 Cyc. 1253 and 21 R. C. L., pages 115 and 117, show that this rule is one of general application.
The case must therefore he reversed, and would he remanded except that appellant asks that judgment he rendered here for what, in any event, would he the minimum amount for which it is entitled to judgment.
It appears from the undisputed evidence that payments and purchases were made in 1921 as follows:
Jan. 11, payment............................................$ 75.00
Jan. 31, purchase............................................. $21.25
Feb. 11, payment............................................. 100.00
Mar. 7, purchase ........,................................. 38.00
Mar. 15, payment .......................................... 50.00
June 15, payment.......................................... 50.00
Aug. 16, payment ........... 50.00
Sept. 21, purchase......................................... 128.25
Sept. 21, purchase.......................................... 230.25
Sept. 28,' payment................................... 25.00
Total payments ................................................$350.00
Total purchases................................................ $417.75
It thus appears that purchases exceeded payments by $67.75, and plaintiff is entitled to judgment for this amount in any event, as it is an undisputed fact that defendant had made default in complying with & 1715, C. & M. Digest.
Appellant argues that, as there were payments made in 1921 which exceeded the purchases that had been made during that year up to the time of payments, the excess of those payments should, automatically and immediately, be credited to the older items of the account. And so they would be if there were no agreement to the contrary. But we cannot say that the undisputed testimony authorizes that action, so that plaintiff is entitled only, under the undisputed evidence, to a judgment for the difference between purchases and payments made in 1921.
■ The judgment of the court below will therefore be reversed, and the cause remanded for a new trial, unless appellant elects to have judgment rendered here in its favor for $67.75.
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Humphreys, J.
This is a suit by appellants, owners of separate notes evidencing the balance of the purchase money for the Battle Ax Plantation in Lee County, Arkansas, to foreclose a mortgage lien given to secure said notes by B. F. Hammond, Sr., C. T. Chandler and R. D. Jarrett to C. E. Daggett, trustee for Logan, Ward & Company, a Kentucky corporation, which had conveyed the plantation to Hammond, Chandler and Jarrett in September, 1919.
Appellees., C. T. Chandler and R. D. Jarrett, filed an answer and cross-complaint, alleging that Logan, Ward & Company had only a life estate in said plantation, it holding through mesne conveyances dating back to June 19, 1878, on which date Grizelle T. .McKinney, by will, a copy of which they filed, gave to her granddaughter, Courtney McKinney Mitchell (now DeSaussure) a life estate in the plantation, with remainder over to others; that the covenant of warranty in the deed from Logan, Ward & Company to Hammond, Chandler and Jarrett had been broken, resulting in damage to them in the sum they had paid on the purchase price.
The canse was submitted to the court upon the pleadings and testimony, which resulted in a finding that Courtney McKinney Mitchell (now DeSaussure) acquired a life interest only under the will of her grandmother, Grizelle T. McKinney, and that, by reason of this fact, there had been a failure or breach of the covenant of warranty in the deed of Logan, "Ward & Company to appellees, Hammond, Chandler and Jarrett, and that Chandler and Jarrett, the cross-complainants, were entitled to a judgment against J. W. Ward, a stockholder in the corporation of Logan, Ward & Company, for a breach of covenant of warranty by said corporation; that appellants, J. T. Robertson and P. B. Benham, who were intervening plaintiffs below, had not purchased their notes in due course for value without knowledge of the defense interposed by Chandler and Jarrett; that all of the appellants, except the interveners, were entitled to a decree against the life estate of Hammond, Chandler and Jarrett in the plantation for the amount of their respective purchase money notes. A decree was rendered in accordance with the findings of the trial court, from which all the parties have prosecuted an appeal to this court.
We have confined ourselves to a very brief as well as general statement of the case, because learned counsel for appellees have agreed, in order to simplify the issues, that, if said appellees acquired, through mesne conveyances dating back to and including the will of G-rizelle T. McKinney, a fee simple title to the plantation, then the decree of. the chancery court is erroneous, and appellants are entitled to a judgment for the full amount claimed and to a decree foreclosing the entire estate in the plantation to pay same. The sole question presented therefore for determination on this appeal is whether, under Mrs. McKinney’s will, Mrs. DeSaussure acquired a life estate or a fee simple title to the plantation. Omitting formal parts, and provisions for the burial of her body and the payment of her debts, and some special bequests, tbe will is as follows:
“4. It is my will and desire that all the rest and residue of my estate, both real and personal, shall be equally divided between my beloved son, Alexander Finley McKinney, and my little granddaughter, Courtney McKinney Mitchell, daughter of W. Z. Mitchell, of Memphis, Tennessee, to be held and enjoyed by them as hereafter provided, and to this end I hereby devise to my said son, Alexander F'inley McKinney, the homestead and plantation near Germantown, Shelby County, Tennessee, upon which he and I reside, containing about 1,480 acres of land, together with all the improvements and appurtenances thereto belonging, to have and to hold the same to him and his heirs in fee simple.
“In order to avoid the trouble and expense of partitions between devisees, as far as practicable, I value the tract of land at the sum of $22,000, and charge my son with that amount for it in the division.
“5. For the purpose mentioned in the last item I further give and devise to my said granddaughter, Courtney McKinney Mitchell, my plantation in Lee County, Arkansas, known as the McKinney Place, cultivated this year by Messrs. Wormley and Goodman, containing about 1,720 acres of land, together with improvements and appurtenances thereto belonging. This plantation I value at the sum of $17,000, and with this amount I charge my said granddaughter for it in the division. This and all other real estate devised under this will to the said Courtney McKinney Mitchell to be taken and held by her upon the conditions and limitations following, viz: To her sole and separate use, benefit and enjoyment, free from all debts, contracts and liabilities of any husband that she may have, and in the event that she shall die leaving no child or children surviving her before the death of my said son, Alexander Finley McKinley, then all of said property and estate shall go to and become the absolute property and estate of my said son, and in the event she shall die without child or children surviving her after the death of my said son, then all of said property shall become the property of Alexander McKinney Rafter, J. M. Carter and C. M. Carter, to whom in that contingency, or to such of them as may be then living, I devise said property.
“6. I hereby constitute and appoint my beloved son, Alexander Finley McKinney, the testamentary guardian of the property and estate bequeathed and devised under the will to my said granddaughter, Courtney McKinney Mitchell, to be held and cultivated by him as such guardian during the minority of said granddaughter for her support, maintenance and education, etc.
“7. My Memphis real estate and such other as I may die seized and possessed of shall be equally divided between my said son and granddaughter by commissioners appointed by the court having jurisdiction of the person and subject-matter, but in the partition of such real estate my said son shall be charged with the sum of $5,000, the excess of the value that I placed upon the Shelby County plantation over the value of the Arkansas plantation, as heretofore provided. If, by reason of the depreciation in value of property or by any other contingency, the property to be then partitioned shall not be sufficient value to equalize the shares of my two devisees, then in that event the said Alexander Finley McKinney shall be debtor to my said granddaughter in the amount of any such deficit, and the property herein devised to him is charged with said deficit and the same shall be a lien thereon. ’ ’
The testatrix, G-rizelle T. McKinney, died December 30, 1888. Alexander Finley McKinney and Courtney McKinney Mitchell (now DeSaussure), the devisees in the will, acquired deeds to all interest under the aforesaid will of Alexander Finley Rafter, J. M. Carter and C. M. Carter to said plantation in 1894, and on March 14, 1900, conveyed it by warranty deed to William L. Bailey, under whom, through mesne conveyances, it was acquired by Hammond, Chandler and Jarrett, who have since remained in the undisturbed possession thereof. Alex ander Finley McKinney died September 17, 1918, without issue. Courtney McKinney Mitchell (now DeSaussure) is the only living heir of her grandmother, the testatrix. She is living with her husband, Louis M. DeSaussure, at Collierville, Shelby County, Tennessee. She was born August 3, 1871, was fifty-one years of age when the suit was brought, and has four children, whose names and ages are as follows: Louis M. DeSaussure, Jr., 29 years; Margaret DeSaussure, 27 years; Charles Albert DeSaussure, 24 years, and Ellen Chessnutt DeSaussure, 18 years.
Appellants’ contention is that Courtney McKinney Mitchell (now DeSaussure) took a qualified fee in the plantation under the will of her grandmother; that, having survived her uncle and testamentary guardian, the first condition imposed in the fifth paragraph of the will was eliminated, and, on the birth of her first child, the second condition therein expressed was eliminated, and her title to the plantation became a title in fee simple, thereby defeating the remaindermen who were to take under said paragraph.
Appellees’ contention is that, under the common law, the language used in the will created an estate tail by construction, and this, by operation of § 1499 of Crawford & Moses’ Digest, vested the life estate only to the plantation in Courtney McKinney Mitchell (now DeSaussure), with the remainder to her children.
It will be observed that the first and last declarations of the testatrix relative to a division of her estate, both real and personal, between her son and only granddaughter, are that they shall share it equally. In the first part of paragraph 4 she said: “It is my will and desire that all the rest and residue of my estate, both real and personal, shall be equally divided between by beloved son, Alexander Finley McKinney, and my little granddaughter, Courtney McKinney Mitchell * * In the first part of paragraph 7 she said: “My Memphis real estate and such other as I may die seized and possessed of shall be equally divided between my said son and granddaughter * * *.” In order to prevent trouble and expense of partitioning her estate equally, she valued the 1,480-acre plantation in Tennessee, which she devised to her son in fee simple, at $22,000, and the one in Arkansas she devised to her granddaughter at the sum of $17,000. In paragraph 7 of the will she reiterated the inequality in value between the plantations she had already devised to her son and granddaughter, and in the division of the Memphis real estate and such other as she might own when she died, her son’s share therein was specifically charged with the sum of $5,000, the excess of the value that she had placed upon the Shelby County plantation over the value of the Arkansas plantation. In a last effort to effect an equal division of her entire estate between her son and granddaughter she said, in the latter part of paragraph 7: “If, by reason in the depreciation in value of property or by any other contingency, the property to be then partitioned shall not be sufficient value to equalize the shares of my two devisees, then in that event the said Alexander Finley McKinney shall be debtor to my said granddaughter in the amount of any such deficit, and the property herein devised to him is charged with said deficit, and the same shall be a lien thereon. ’ ’ In valuing the plantations she placed a value upon the lands themselves according to her idea of what each was worth, and charged each devisee for the amount fixed for the land which each received in the division. It is evident she did not value a fee simple title in one plantation and a life estate in another. It would have been next to impossible to have equalized a division of the estate on the basis of a fee simple title in one plantation and a life estate only in another. It would seem that a declared intention of a testator, in both the opening and closing paragraphs of his will, to divide his estate' equally between the beneficiaries, when connected with an effort ^ to accomplish that purpose by fixing the values of the properties devised to each and charging each with the value of the property devised to him, should not be thwarted by intervening language of doubtful meaning. By reference to the intervening language it will he observed there are no words in the will indicating that a limitation over to the heirs of the ¡body of Courtney McKinney Mitchell (now DeSaussure) was intended by the testatrix. No reference was made in the will either to a life estate or to a remainder estate. The language d'oes not restrict the use of the property by the devisee nor limit a remainder to her issue or the heirs of her body. On the contrary, we find language to the effect that it was devised to her for “her sole and separate use, benefit and enjoyment, free from all debts, contracts and liabilities of any husband she may have.” The absence of such restrictions and limitations and the use of the language just quoted indicate that the testatrix intended to devise a fee simple estate in the plantation in question to her granddaughter. In construing wills, courts favor the early vesting of estates, and in carrying out the intention of testators, if not at variance with recognized rules of law. A majority of the court has concluded that the instant ease is ruled by Wiggins v. Hill, 145 Ark. 152, 223 S. W. 394. It was decided in that case that the devisee took a defeasible fee simple title to the property devised. By so holding in the instant case, effect and meaning-will be given to every clause of the will. We cannot concur with learned counsel for appellees that this construction of the will will necessarily affirm the case because of the remote possibility that all of Mrs. DeSaussure's children may predecease her.
The first contingency upon which her defeasible fee simple title might be defeated was eliminated upon the death of her uncle, Alexander Finley McKinney. The other contingent remaindermen executed deeds for . all their interest in said plantation to Alexander Finley McKinney and Courtney McKinney Mitchell (now DeSaussure) in 1894, and they in turn conveyed the land to William L. Bailey in fee simple, through whom Hammond, Chandler and Jarrett acquired title through mesne ' conveyances purporting to convey the fee simple title. The taxes have been paid and improvements made on the faith of deeds executed by these contingent remainder-men, and certainly they have estopped themselves from defeating the title upon the remote contingency of Mrs. DeSaussure surviving all of her children.
On account of the error indicated the decree is reversed, and the cause is remanded with directions to enter judgments in. favor of appellants for their respective claims and to decree a foreclosure and sale of said plantation to satisfy the judgments.
Chief Justice Hart and Judge Wo on dissent.
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