author: Jim Johnson, Associate Justice. Sam Robinson, Associate Justice

text:
    Briggs v. State.
    4992, 4994, 4997
    367 S. W. 2d 750
    Opinion delivered May 13, 1963.
    [Rehearing in Case No. 4997 denied June 3, 1963.]

      Harold B. Anderson and Wiley A. Branton, for appellant.

      Bruce Bennett, Atty. General, by Clyde Calliotte, Asst. Atty. Gen., for appellee.
   Jim Johnson, Associate Justice.

These are the so-called “sit-in” cases. They were submitted to this court on January 16, 1961. At that time there were cases claimed to be similar pending in other states. By common consent our decision was delayed awaiting the outcome of cases then pending in which petitions for certiorari to the United States Supreme Court had been filed. Since then additional petitions have been filed and there are now pending before the United States Supreme Court at least three cases of this nature in ivhich certiorari has been granted. See Avent v. North Carolina, cert. 370 U. S. 934; Peterson v. City of Greenville, cert. 370 U. S. 935; Lombard v. Louisiana, cert. gr. 370 U. S. 935. We were particularly interested in the outcome of the “Garner cases”, Garner v. Louisiana, 368 U. S. 157, 82 Sup. Ct. 248, 7 L. Ed. 2d 207, which appeared to be in point with the cases at bar. From the opinion of the United States Supreme Court in these cases, which were decided December 11,1961, it developed that the cases did not involve a situation similar to ours and therefore afforded no persuasive authority.

While we originally intended to delay our decision until the United States Supreme Court had decided a case in point with ours, it is against our policy to delay for too long our decision in any pending case. We ascribe to the theory that justice delayed is justice denied. For many years when this court goes into summer adjournment all eases ready for submission have been decided except some rare cases, like these, which are carried over for a definite reason. These cases have now been pending for over two years. "We do not feel that we can properly delay them longer to await a decision of the United States Supreme Court. In order to avoid carrying these cases over another summer we now proceed to a decision.

Our cases here were consolidated. They consisted of three criminal prosecutions against 13 defendants. The prosecutions arise out of the activities of the defendants in seeking to be served at eating facilities maintained for whites, the defendants being Negroes. The three cases involve separate incidents at separate retail establishments. There are factual and legal differences necessitating a different disposition of the cases of one group of appellants as compared to the other two groups.

Case No. 4992, styled Briggs et al v. State, is a prosecution under Act 226 of the Acts of 1959. It involves a “sit-in” at F. W. Woolworth Company in Little Rock on March 10, 1960.

Case No. 4994, styled Smith et al v. State, is also a prosecution under Act 226 of the Acts of 1959. It involves a “sit-in” at Pfeifers Department Store in Little Rock on April 13, 1960.

Case No. 4997, styled Lupper et al v. State, is a prosecution under Act 226 and also under Act 14. It involves a “sit-in” at the Uus Blass Store in Little Rock on April 13, 1960.

In the Briggs case, the evidence shows that the Negro defendants seated themselves at a lunch counter in Woolworth’s and refused to leave when ordered to do so by police officers. The evidence is undisputed that these defendants were not requested to leave by the management or by anyone with authority to act for the management.

In the Smith case, the record shows that all defendants but one left the premises promptly upon the request of the manager.

Tlie Lupper case was tried to a jury and there is adequate evidence on behalf of the State to support a finding that these two defendants, James Frank Lupper and Thomas B. Robinson, refused to leave the Gus Blass Store at the request of the manager.

ACT 226 CASES

We see no distinction in fact or law between the three prosecutions under Act 226 of 1959. Therefore, we will discuss the three cases together insofar as Act 226 is concerned. Of course, it will be necessary to discuss the prosecution under Act 14 separately.

For reversal of the Act 226 cases, it is insisted that:

(1) The Act is unconstitutional because it denied defendants due process and equal protection of the law.

(2) The Act has been applied in an unconstitutional manner.

(3) The evidence was insufficient to support a conviction; and,

(4) The judgment was excessive and harsh.

Since we are of the opinion that Point 3 is well taken, we will not pass upon the constitutionality of Act 226 of 1959. This is in accordance with the established rule of this court that constitutional questions will not be decided where the case may be disposed of on other grounds. Bailey v. State, 229 Ark. 74, 313 S. W. 2d 388; Bowling v. State, 229 Ark. 876, 318 S. W. 2d 808.

Section 1 of Act 226 of 1959 [§ 41-1432 Ark. Stats.] reads as follows:

“Any person who shall enter any public place of business of any kind whatsoever, or upon the premises of such public place of business, or any other public place whatsoever, in the State of Arkansas, and while therein or thereon shall create a disturbance, or a breach of the peace, in any way whatsoever, including, but not restricted to, loud and offensive talk, the making of threats or attempting to intimidate or any other conduct which causes a disturbance or breach of the peace or threatened breach of the peace, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than five hundred dollars ($500.00) or imprisoned in jail not more than six (6) months, or both such fine and imprisonment.”

Under this Act the prohibited offenses are creating disturbances or breaches of the peace. The Act sets forth loud and offensive talk, the making of threats and attempts to intimidate as examples of prohibited conduct. While there was some evidence on the part of the State to the effect that feeling and tension were high, the State ^offered no substantial evidence that these defendants .entered the store to carry out a conspiracy to cause a breach of the peace, nor was there evidence that these defendants or any of them uttered any loud offensive talk, made any threats or attempted to intimidate anyone. The defendants had a right to peacefully seek service at the lunch counters. By the same rule, management had a right to refuse to serve them. Since the peaceful efforts of the defendants to get service at the lunch counters were lawful, and in the absence of a substantial showing that such efforts were organized and calculated to disturb or breach the peace, it cannot be said here that the mere making of these efforts amounted to “creating a disturbance or breach of the peace.” It is obvious that the Act contemplates a doing of that which the actor has no legal right to do. The defendants in the Briggs case refused to leave at the command of the police officers but in the absence of a request by management of the officers to order appellants to leave the premises, the officers had no right or authority to give such orders. There is no contention in this case that the officers had received such a request from management. Hence, the refusal of the defendants to leave was not unlawful and could not have been unlawful until they refused to leave at the request of the management or the officers in compliance with a request from management. In the Smith case all defendants but one left promptly at the request of the management. Certainly those leaving were guilty of no offense. The ease of the one individual (in the Smith case) who did not leave promptly gives us more concern. However, we are constrained to believe that any unrest, tension or disturbance existent in the Pfeifer store at that time had already been created by the lawful efforts of all the defendants to obtain service. There is no showing that this act of the defendant created a disturbance or breach of the peace. A different question would be presented had this defendant been prosecuted under Act 14 of 1959 but no such charge was placed against him.

The point which we wish to make completely clear is that the mere fact that the exercise of a lawful right may result in a disturbance or breach of the peace does not make the exercise of that right a violation of the law so long as the right is exercised in a peaceful manner and without force or violence or threats of same. Therefore, we conclude that all defendants in all prosecutions under Act 226 of 1959 should have been acquitted.

In the Lupper case, which involves violations of Act 14 of 1959, as well as violations of Act 226, the appellants make the same contentions as to Act 14 as are made as to Act 226 and an additional point is raised as to alleged error in refusing to give certain instructions.

DUE PROCESS AND EQUAL PROTECTION OF LAWS

Section 1 of Act 14 of 1959 [§ 41-1433 Ark. Stats.] reads as follows:

“Any person who after having entered the business premises of any other person, firm or corporation, other than a common carrier, and who shall refuse to depart therefrom upon request of the owner or manager of such business establishment shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) or by imprisonment not to exceed thirty (3,0) days, or both such fine and imprisonment.”

Appellants assert that Act 14 is unconstitutional in that it denies them equal protection of the laws and due process as guaranteed by the Fourteenth Amendment to the Constitution of the United States and Section 8 of Article II of the Constitution of Arkansas, and cite United States v. Miller, D. C., 17 F. Supp. 65; and Lanzetta v. New Jersey, 306 U. S. 451, 59 Sup. Ct. 618, 83 L. Ed. 888. It is contended that the Act is so vague as to make it impossible to determine what conduct might transgress the statute. It is said that the Act provides no ascertainable standard of criminality. With these contentions we cannot agree. The Act clearly, specifically and definitely makes the failure to leave the business premises of another upon request of the owner or manager a misdemeanor.

It is suggested that the Act could be construed so as to allow an owner or manager to invoke the same because a customer was demanding a refund of money paid for merchandise or because a customer was demanding a delivery of merchandise which he had purchased. Assuming this to be true, we see no reason why the Act amounts to a denial of due process or equal protection of the laws. To remain upon the premises of another after having been requested to leave amounts to a trespass. State v. Clyburn, 247 N. C. 455, 101 S. E. 2d 295. This does not mean that under the hypothesis suggested by appellants that the aggrieved customer would have no remedy because if management had failed to return his money or deliver merchandise purchased, an action would lie in the courts of this State and the customer could be fully compensated for the failure to return the money or deliver the merchandise. A bill collector has a right to attempt to collect what is due him but he has no right to commit a trespass in the process.

By its terms and on its face, the statute applies to all who refuse to leave and it is not restricted to negroes. There is nothing uncertain, indefinite or vague about Act 14. It prohibits trespass.

While the Legislature and not this court determines public policy by statutory enactments, we feel that it is a wise policy to prevent possible violence and bloodshed by providing criminal sanctions against trespass. We have held that a citizen of this State may use force and violence short of killing to protect his property against trespass even though the trespasser makes no effort to commit a felony. Carpenter v. State, 62 Ark. 286, 36 S. W. 900. The statute here in question simply provides a means whereby the owner of property may be protected in his use and possession of such property without having to resort to force and violence. We are impressed with the proposition that without this salutary statute, violence in repelling trespassers could become commonplace. Certainly, it is in the interest of the public and a valid exercise of the police power to protect the public peace by criminal sanction against trespass. Article 2, § 22 of the Constitution of Arkansas in part is as follows:

“The right of property is before and higher than any constitutional sanction ...”

The right to hold and enjoy property free from interference by others is one of the most precious rights enjoyed by the citizens of this State. They are entitled to be protected in this right against all trespassers without regard to whether they are colored or white.

The appellants complain that the Act does not require any mens rea or criminal intent on the part of the offender. We again disagree; the intent to remain after being requested to leave is a criminal intent.

UNCONSTITUTIONAL APPLICATION OF ACT 14

The appellants contend that Act 14 has been unlawfully and unconstitutionally administered because it is said that the Act would not be invoked or enforced against a white man under the same or similar circumstances, thereby denying appellants equal protection of the laws. There is absolutely no evidence in the record to justify such an assertion. On its face the Act is applicable to all persons -without regard to race. Appellants made no effort to adduce evidence to prove that white persons had violated the Act; that these violations were known to the officers and prosecuting authorities and that no arrests and prosecutions had followed such violations. Such proof would have been necessary in order to justify the present contention. See: Taylor v. City of Pine Bluff, 226 Ark. 309, 289 S. W. 2d 679, Certiorari denied, 352 U. S. 894, 77 Sup. Ct. 125, 1 L. Ed. 2d 85; also see: Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220; Snowden v. Hughes, 321 U. S. 1, 64 Sup. Ct. 397, 88 L. Ed. 497; Hickinbotham v. State, 227 Ark. 1032, 303 S. W. 2d 565.

The appellants have not shown, nor have we been able to find from the record, a single discriminatory act on the part of the State in the enforcement of this statute. It is not unusual for persons charged with crime to assert “discrimination”, however, unsupported assertions cannot be held to take the place of evidence.

STATE ACTION

Appellants further assert that the Act has been unconstitutionally applied in that the enforcement of such Act amounts to “state action” in violation of the 14th Amendment to the Federal Constitution. They cite, inter alia, Shelley v. Kraemer, 334 U. S. 1, 68 Sup. Ct. 836, 92 L. Ed. 1161; Hurd v. Hodge, 334 U. S. 24, 68 Sup. Ct. 847, 92 L. Ed. 1187; Barrowes v. Jackson, 346 U. S. 249, 73 Sup. Ct. 1031, 97 L. Ed. 1586; and Valle v. Stengel, 176 F. 2d 697. This argument is completely untenable because it presupposes a right in the Negro defendants to be served by the lunch counter operators. In all of the cited cases from the Supreme Court of the United States it is either assumed or specifically stated that the Negroes involved had a right to own and occupy the property in question. In the Valle case, the State of New Jersey had enacted a statute giving all persons, irrespective of color, the right to admission of places of public accommodation such as the swimming pool there in question.

There is no right in these defendants under either State or Federal law to compel the owners of lunch counters to serve them. Many states have enacted so-called “public accommodation” statutes but Arkansas is not among them. The Fourteenth Amendment does not guarantee any such right to the appellants.

Appellants place great reliance on the language in Valle v. Stengel, supra, with reference to the right to contract. However, a reading of the Valle case shows that the court merely held that the Fourteenth Amendment and the Federal Civil Bights Statutes only guaranteed to Negroes “a civil status equivalent to that enjoyed by white persons.” As previously mentioned, New Jersey had a “public accommodation” statute guaranteeing to all persons, regardless of color, the right to admission to the swimming pool in question. This is considerably different from the situation in the case at bar. Arkansas has no “public accommodation” statute. Management can arbitrarily order white persons to leave lunch counters for any reason whatever. While appellants expound forcefully of the equal privileges and immunities provisions of the Fourteenth Amendment, we cannot escape the conclusion that they are urging this court to grant them an unequal privilege, that is the right to be served in a restaurant because they are colored, even though a corresponding right does not exist in white persons. Appellants’ argument must fail because they, regardless of color, had no right or privilege to be served. To hold otherwise would be to employ judicial fiat to coerce unwilling lunch counter operators to afford service to patrons they do not want and did not seek. It can add nothing to the argument to say that they did not want appellants because of their color because appellants had no basic right to be served and the State’s action in enforcing the criminal laws against trespass cannot be held to be “state action” abridging the privileges or immunities of citizens of the United States. There is no privilege or immunity to trespass on private property. It should be remembered that the operators of the lunch counter in question have a right not to be deprived of their property without due process of law. This right is guaranteed to them under the same provisions of the Constitution now sought to be invoked by appellants. To hold that anyone may trespass at will simply because his color is different from that of the property owner and that the law is powerless to protect the injured party would be inviting property owners to provide their own means of evicting trespassers. This would not be consonant with the principles of a nation which regards good order as one of the fundamental objectives of society. The Supreme Court of the United States has approved a municipal ordinance designed to prevent trespass by providing that it should be unlawful for magazine subscription solicitors to go upon private property for the purpose of soliciting orders without having been requested or invited to do so. Breard v. Alexandria, 341 U. S. 622, 71 Sup. Ct. 920, 95 L. Ed. 1233. In the Breará case the court rejected arguments of the appellant solicitor that the ordinance violated: (a) The due process clause of the Fourteenth Amendment; (b) The Federal Commerce Clause; (c) The guarantees of the First Amendment of freedom of speech and the press (made applicable to the states by the Fourteenth Amendment).

In the Breará case the court said:

‘ ‘ Since it is not private individuals but the local and federal governments that are prohibited by the First and Fourteenth Amendments from abridging free speech or press, Hall v. Virginia does not rule a conviction for trespass after notice by ordinance. However, if as we have shown above, p. 1247, a City Council may speak for the citizens on matters subject to the police power, we would have in the present prosecution the time-honored offense of trespass upon private grounds after notice. Thus, the Marsh and Tucker cases are not applicable here.”

We think the quoted language makes it abundantly clear that the act of discrimination in refusing service is that of the individual and thus not subject to the interdiction of the Fourteenth Amendment. The same language also makes it clear that in prosecuting for trespass the State is making a valid exercise of police power. In other words, it makes no difference as to why the individual lunch counter operator did not want the appellants on the premises, because if they remained after a request to leave they became trespassers and the State prosecuted for trespass and not to enforce discrimination.

SUFFICIENCY OF EVIDENCE IN LUPPER CASE

As previously mentioned, there was sufficient evidence to support the verdict of the jury in finding that the defendants Lupper and Robinson refused to leave the premises after having been requested to do so by the manager. It is not our province to pass upon the weight of the evidence. It requires no citation of cases as to the familiar rule that we may not go behind the verdict of a jury which is supported by substantial evidence.

REFUSAL OF REQUESTED INSTRUCTIONS

The appellants complain of the action of the trial court in refusing to give two instructions requested by them. However, a comparison of the instructions which were refused with those which were given by the court makes it crystal clear that the subject matter of the rejected instructions ivas adequately covered by the instructions given. Harrison v. State, 222 Ark. 773, 262 S. W. 2d 907.

EXCESSIVENESS AND HARSHNESS OF JUDGMENT

The appellants contend that the fines and punishment meted out to them were excessive and harsh even though they did not exceed the penalties provided by Act 14. This contention has been rejected many times by this court. See: Johnson v. State, 214 Ark. 902, 218 S. W. 2d 687.

CONCLUSION

For the error indicated, the convictions under Act 226 of 1959 are reversed and the cases having been fully developed are dismissed.

The convictions of Lupper and Robinson under Act 14 of 1959 are affirmed.

Robinson, J., dissents in part; Holt, J., disqualified.

Sam Robinson, Associate Justice

(dissenting). The majority is holding that there is no substantial evidence to sustain the convictions for violating Act 226 of 1959. I do not agree. The Act provides that anyone who shall enter any place of business and create a disturbance in any manner whatsoever shall be guilty of a misdemeanor. Not only did the appellants create a disturbance in Pfeifers, Blass and Woolworth’s, but they went to those places for the specific purpose of creating a disturbance. The evidence is overwhelming to that effect.

It is clear from the evidence that the appellants did not go to the lunch counters at the places mentioned because they were hungry and wanted food, and no one contends that they went there for that reason. The evidence shows conclusively that on the morning of March 10th a large group of people met at Philander Smith College and there agreed to go to Woolworth’s for the purpose of attempting to force that place of business to serve them food, when they had no reason to believe that they would be served such food. About 50 of them walked' from the college to Woolworth’s; they all went in at the same time and sat down at the lunch counter. There are only 59 seats at the counter. It is a matter of common knowledge that in going from the college to Woolworth’s they passed or went near numerous eating places that would have served them food.

Certainly, no operator of a privately owned restaurant is required by law to serve anyone he does not want to serve. The appellants are presumed to know the law, and when they went there they knew they could not lawfully require Woolworth’s to serve them food. And they knew to a moral certainty that Woolworth’s would not voluntarily serve them.

The evidence is overwhelming that appellants went to Woolworth’s for the very purpose of creating a disturbance by violating the custom and practice of the community in seating themselves at a lunch counter reserved for others. Even when they were not served and the lunch counter was closed because of their conduct in occupying the seats, they continued to sit there. Of course, such an unusual occurrence created a disturbance, and someone called the police. When the police arrived and asked them to remove themselves from the lunch counter, about 45 complied, but five continued to sit there, although the lunch counter had been closed. When all the facts are considered, there is no conclusion to be reached except that appellants went to Woolworth’s to create a disturbance, to disrupt business and harass the proprietor. If this is not disturbing the peace, then it is hard to see how anyone could ever commit that offense.

The majority opinion is based on the premise that if a person is doing something lawful, he cannot be guilty of disturbing the peace. In my opinion, such reasoning is not sound. Certainly one has a right to pray or sing or do many other things that ordinarily would not be unlawful, but when such acts are done in a manner calculated to disturb the peace of the community, and does disturb the peace of many people to the extent that officers of the law have to be called to handle the situation, such acts are unlawful.

Disturbing the peace is synonymous with disorderly conduct and is so regarded in our statute. Our disturbing the peace statutes are placed under the heading of Disorderly Conduct in Ark. Stats., Vol. 4, p. 57. There have been many convictions for disturbing the peace or disorderly conduct that have been affirmed where the defendant had not so flagrantly violated the rights of others as was done by the appellants in the case at bar. In the case of State v. Cooper, 285 N. W. 903 (Minn. 1939), a discharged chauffeur had his former employer’s home picketed with a banner reading “Unfair to Private Chauffeurs and Helpers Union, Local No. 912”. In sustaining a conviction for disorderly conduct by the one carrying the banner, the Minnesota court said: “ ‘ Conduct is disorderly, in the ordinary sense, when it is of such nature as to affect the peace and quiet of persons who may witness the same and who may be disturbed or provoked to resentment thereby. ’ Or, as stated further: ‘ The probable and natural consequence of the conduct is the important element.’ As to modern statutes and ordinances relating to disorderly conduct, ‘it may be said in general that words and acts which tend to disturb the peace ... of the community, or of a class of persons, or of a family, are punishable.’ 18 C. J. p. 1216, [§ 2]B, and cases under note 12. And in several jurisdictions it has been held that such conduct ‘ as in the opinion of the magistrate tends to a breach of the peace’ is punishable; 'and even in the absence of such a statutory definition it is generally a question for the magistrate whether or not the particular act complained of is comprehended within the expression “disorderly conduct”.’ Id. and cases under notes 16 and 17; 8 R. C. L. p. 285, § 306, and cases under note 7. We are of opinion and so hold that it was for the court to determine whether upon this record defendant was guilty, and that its findings in that behalf should not be overturned. The judgment and sentence are therefore affirmed.”

In Bennett v. City of Dalton, 25 S. E. 2d 726 (Ga. 1943), the defendants were distributing a religious magazine known as “The Watch Tower” and caused a crowd to gather. A policeman told them to move on, which they refused to do, stating they were doing the Lord’s work and would have to be locked up. They were therefore arrested. In affirming the convictions for disorderly conduct, and notwithstanding the constitutional guarantee of freedom of speech, freedom of press, freedom of worship and religious liberty was involved, the Georgia court said: ' ‘ The testimony of the policemen authorized the recorder, sitting as both judge and jury, to find that the refusal of the defendants to move on, after having been directed to do so by an officer of the law, constituted disorderly conduct.” Certiorari was denied by the United States Supreme Court. Bennett v. City of Dalton, 64 S. Ct. 197, 320 U. S. 712, 88 L. Ed. 418.

In the New York case of People v. Galpern, 181 N. E. 572 (1932), a policeman told about five or six men congregated on a sidewalk to move on, which they refused to do. The court found that they were violating no law at the time, but they were guilty of disorderly conduct in refusing to move on when directed by an officer to do so. The court said: “The courts cannot weigh opposing considerations as to the wisdom of the police officer’s directions when a police officer is called upon to decide whether the time has come in which some directions are called for. ’ ’ And that is exactly the situation that existed in the case at bar. The police were of the opinion that the situation was tense and such that the Negroes should move on, and only the ones who refused to do so were arrested. In addition to what has been said heretofore, clearly their refusal to move on when directed by an officer of the law created a disturbance within the meaning of the statute.

Under the decision handed down by the majority, a large number of people can go into any place of business, create a disturbance by their presence, disrupt business and annoy the proprietor to no end, and there is nothing-lie can do except request them to leave, which they can do and immediately return to the restaurant or other place of business and go through the same procedure until the owner breaks down and does business with them or goes out of business.

The trial court was completely justified in finding from the evidence in the cases that the real purpose of the appellants in going to the lunch counter at Woolworth’s was to unlawfully harass the owners, thereby compelling-such owners to serve food to the appellants or close the lunch counter. Here, the owners adopted the procedure of closing the eating places. The same thing occurred at Pfeifers and Blass.

In my opinion the evidence is ample to sustain the convictions for violating- the provisions of Act 226 of 1959, and in addition, Ark. Stats. § 41-1403 provides that if two or more persons assemble together for the purpose of disturbing the peace they are guilty of a misdemeanor.

For the reasons given I therefore dissent.

Supplemental opinion on denial of request for rehearing-in Case No. 4997 delivered June 3, 1963.

Jim Johnson, Associate Justice. Subsequent to the opinion delivered by this court in Lupper v. State on May 13, 1963, the United States Supreme Court on May 20, 1963, rendered opinions in four “sit-in” cases the pendency of which was specifically referred to in our opinion as cases in the nature of and similar to the cases at bar. The four cases are Avent v. North Carolina, # 11; Peterson v. City of Greenville, # 71; Lombard v. Louisiana, # 58; and Gober v. Birmingham, # 66.

Within the time prescribed by the rules of this court, appellants have petitioned for a rehearing urging reconsideration of our opinion in the light of these recent pronouncements of the United States Supreme Court.

A careful examination of copies of the official opinions in these cases furnished us by the Government Printing Office discloses that the court [in Lombard v. Louisiana, # 58] summarized its own holdings as follows:

“We have . . . held . . . that where an ordinance makes it unlawful for owners or managers of restaurants to seat white and Negroes together, a conviction under the State’s criminal processes employed in a way which enforces the discrimination mandated by that ordinance cannot stand. Equally the State cannot achieve the same result by an official command which has at least as much coercive effect as an ordinance.”

In compliance with petitioners’ request for review, we have reexamined our opinion in the light of the cited cases and find that appellants did not claim nor was there any showing made relative to the existence of a state law or municipal ordinance in the City of Little Rock which made it unlawful for owners or managers of restaurants or lunch counters to seat whites and Negroes together. Further, appellants did not claim nor was there any showing made that any official command was issued which could remotely have the coercive effect of a law requiring segregation of the races in restaurants or lunch counters. In fact, from our assiduous review of the entire record before us, we have been unable to find any claim, evidence or showing indicating in the slightest respect that the decision of the manager in the case at bar to exclude these petitioners from the lunch room was anything except the exercise of freedom of choice. Having thus reviewed our opinion in the light requested, rehearing is denied.

        Henderson v. Trailway Bus Co., (Va.) 194 F. Supp. 423; Randolph v. Commonwealth, (Va.) 119 S. E. 2d 817; State v. Williams (N. C.), 117 S. E. 2d 824; Samuels v. State (Ga.), 118 S. E. 2d 231; Briscoe v. State, (Tex.) 341 S. W. 2d 432; Walker v. State (Ga.), 118 S. E. 2d 284; State v. Fox (N. C.), 118 S. E. 2d 58; Rucker v. State (Tex.), 342 S. W. 2d 325; Burton v. Wilmington (Del.) Parking Authority, 365 U. S. 715; Williams v. Hot Shoppes, Inc., C. A. D. C., April 20, 1961, No. 15610; Gober v. City of Birmingham (Ala.) 133 So. 2d 697.

       The cases were consolidated for briefing upon motion of appellants.

       It is noted that these appellants were charged and convicted of a violation of Act 226 of 1959 exclusively and not for a violation of the prohibitions contained in Ark. Stats. § 41-1401 or § 41-1403, the general disturbance of the peace statutes.


source: Caselaw Access Project

author: Frank Holt, Associate Justice.

license: Public Domain

text:
    Richardson v. Fisher.
    5-2995
    367 S. W. 2d 440
    Opinion delivered May 13, 1963.

      Curtis L. Riclgway, Jr., for appellant.

      R. 8cott Campbell, for appellee.
   Frank Holt, Associate Justice.

This is an action brought by the appellants against the appellees to determine their respective interests in a 160 acre farm. The appellants and appellees are the various heirs at law of Joseph Hugh Fisher who owned this property when he died intestate about thirty-five years ago. Surviving him as his sole heirs were his six children, Neal Fisher, Joe Fisher, Mint Fisher Richardson, Nancy Fisher Anderson, Sara Fisher and Ada Fisher, all of whom are now deceased except the defendant, Neal Fisher.

On March 19,1932, Nancy Fisher Anderson conveyed her undivided interest by warranty deed to her sisters, Sara and Ada Fisher, and on the same date they conveyed by warranty deeds their undivided, interest in the 160 acre farm to their nephew, Paul Fisher, the defendantappellee. By virtue of these conveyances he contends he is now the owner of an undivided one-half interest in this property. He did not record his warranty deeds until November 23, 1960, or seven months after the plaintiffs-appellants, Herbert Nelson Fisher and Lucille Fisher, his wife, recorded a deed on which they base their claim to a superior title.

Their claim to a superior title arose in this manner. In 1956, Neal Fisher, father of the appellee, Paul Fisher, mortgaged an undivided one-third interest [he actually owned an undivided one-sixth interest] in the farm lands to a Mr. Coleman. This mortgage was properly foreclosed and Neal Fisher’s interest in the land was conveyed by a commissioner’s deed to a Mr. Lowrey and a Mr. Sloan in 1958. On April 16, 1960, Sloan and Lowrey conveyed their interest in this property to the appellants, Herbert Nelson Fisher and Lucille Fisher, his wife. This instrument was recorded by Herbert and Lucille on this same date or approximately seven months before their cousin, Paul Fisher, recorded his 1932 deeds.

Herbert Fisher and his wife, Lucille Fisher, and the numerous other plaintiffs-appellants, as heirs at law of Joseph Hugh Fisher, allege in their pleadings that the 1932 deeds to Paul Fisher are invalid and inoperative because the signatures of Sara and Ada Fisher are not genuine; that the deeds were not executed on the dates named therein, and that if the deeds were signed by the purported grantors the “subject matter of the conveyances” was inserted in the deeds at a date subsequent to the execution thereof. The defendants-appellees, Paul Fisher and his wife, filed a general denial. It was stipulated that the interest of Neal Fisher, which interest he had mortgaged, was duly foreclosed and conveyed by the commissioner’s deed.

The Chancery Court found that the plaintiffs-appellants had failed to prove the invalidity of the 1932 deeds; that Neal Fisher and Edna Fisher, his wife, owned and only mortgaged an undivided one-sixth interest, instead of the undivided one-third interest, in said lands which interest was legally divested through the commissioner’s deed; that the lands were susceptible of partition or division in kind; that the appellee, Paul Fisher, is the owner of an undivided one-half interest as claimed by him. The Court apportioned the remaining one-half interest among the various appellants and decreed that the property be divided “in equal parts, one of which shall be the property of the plaintiffs, and the other being the property of the defendant, Paul Fisher.” From this decree in favor of the appellee, Paul Fisher, comes this appeal.

For reversal appellants rely on the point that an unrecorded conveyance of title is invalid against a subsequent purchaser for value and without notice. This point was not asserted in the pleadings nor was it an issue before the trial court. We have consistently held that where an issue is not presented in the trial of the case it cannot he considered on appeal. Angelletti v. Angelletti, 209 Ark. 991, 193 S. W. 2d 330. This is on the well-reasoned basis that cases on appeal should he determined on the same issue or issues on which they were presented in the trial court.

However, if we consider the point relied on by the appellants they cannot prevail. Appellants cite Ark. Stat. (Anno.) § 16-115 which provides that an unrecorded instrument is invalid against a subsequent purchaser for a valuable consideration and without notice of a pre-existing conveyance. Thus, such a subsequent purchaser acquires a superior title when he places his title of record before a previous purchaser records his title. This statute, however, applies to purchasers who derive their interests from a common grantor. Halbrook v. Lewis, 204 Ark. 579, 163 S. W. 2d 171; Brewer, Exec., v. Fletcher, 210 Ark. 110, 194 S. W. 2d 668.

In the case at bar the contending parties did not receive the deeds in question from a common grantor since appellee acquired his deeds from Sara and Ada Fisher, and appellants secured their deed from Lowrey and Sloan. Therefore, the above statute is not applicable.

The decree of the Chancery Court is affirmed.


author: Carretón Harris, Chief Justice.

text:
    Rhea v. M-K Grocer Co.
    5-3004
    370 S. W. 2d 33
    Opinion delivered May 20, 1963.
    [Rehearing denied September 16, 1963.]
    J. Kenton Cochran, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   Carretón Harris, Chief Justice.

This is a Workmen’s Compensation case. Virginia K. Rhea, for herself and children, filed a claim which arose out of the death of her husband, Boyce Rhea, who died from a brain hemorrhage on February 1, 1960, on which date he was admittedly employed by M-K Grocer Co., Inc. Appellants contend that Mr. Rhea sustained an accidental injury, arising out of and in the course of his employment, and that they are entitled to compensation. The referee found that the brain hemorrhage which Rhea suffered, and which resulted in his death, did not arise out of and in the course of his employment. The full commission sustained this finding, and, on appeal to the Circuit Court, the eommission was affirmed. From the judgment so entered, appellants bring this appeal.

According to the testimony of Clyde Pearson, a fellow worker, Rhea started to work at 7:00 A.M. on the date in question (February 1, 1960), working as a shipping clerk, and after helping load a truck, assisted three or four men in pushing a box car to the proper place for loading, a distance of three or four feet. Before moving this car, it was necessary to push another loaded box car out of the way for the same distance. This was moved by using a pinch bar, and with all parties pushing. Moving the box cars was an unusual duty for Rhea. Pearson was unable to state the time this work took place other than it occurred between 9:00 and 12:00 A.M. He testified that Rhea went to lunch at 12:00 o’clock, and returned from lunch “right at 1:00 o’clock.” From the testimony:

“I was sitting in the office. He came through. He generally stopped and talked but he come on through to the back of the store and got him a cup of water and sat down on the floor and I got up and followed him out and when I got out there, why he was setting weaving and I asked him what was wrong and he said he had a severe headache and I asked him if I could do something and he didn’t answer me then and then he said ‘Somebody has got to do something’ and I said ‘I’ll call an ambulance’ and run in the office and told Charles to call an ambulance that something was wrong and I run back out there and Kyle, Hugh and I just lay him on down because he was about to fall. ’ ’

The witness stated that Rhea was unconscious and he could hear a “gurgle in his throat.” The ambulance arrived in about 10 minutes, and Rhea was taken to the hospital.

Leonard Crain, another fellow employee, testified that Rhea came to work on the morning in question prior to 7:00 o’clock, and he verified Pearson’s testimony to the effect that Rhea had helped in pushing the box cars. He stated that subsequently Rhea was engaged in “stacking cans” in the warehouse, which required the latter to pick up cases weighing approximately 40 pounds each, and stacking same above his head. This work, according to the witness, lasted for two or two and one-half hours. Crain said that around 11:00 o’clock, Rhea told the workers “that he had a bad headache, says ‘I don’t believe I have ever had the headache any worse ’ and so that was all that was said, and he went back down and stayed downstairs then until noon.” Crain further testified that the workers ceased work at 12:00, upon directions from Rhea who ‘ ‘ a few minutes before 12:00, between 11:30 and 12:00” had told the employees “to come on down pretty soon that it was time to go. ’ ’ The witness stated that Rhea returned from lunch about 20 minutes until 1:00 o ’clock, and suffered the attack 5 or 10 minutes later.

Dr. J. A. Henry, a physician of Russellville, testified that he became acquainted with Rhea in 1952, and performed an operation on the latter at that time for a ruptured liver. He attended Rhea after the attack on February 1. Dr. Henry stated that Rhea suffered a cerebral hemorrhage, and the medical history revealed that the deceased had pre-existing arteriosclerosis. Following Rhea’s death, an autopsy was performed. From the testimony:

‘ ‘ It was our opinion that there had been an aneurysm in this region which had ruptured and produced the hemorrhage. This could have been a congenital aneurysm. It could have been an aneurysm due to arterial disease, arteriosclerosis because pathological examination of other arteries in this region revealed evidence of arteriosclerosis. ’ ’

"When asked what would hasten the rupture of an aneurysm, Dr. Henry replied,

“Anything that an individual with an aneurysm might do that would tend to increase the pressure of the blood within that diseased artery could naturally tend to cause it to rupture and the things that might increase one’s blood pressure would be physical exertion, could be mental strain, certain positions that the body might be placed in that could increase pressure within and say if the aneurysm were in the brain, increase the stress there, the pressure within the blood vessel.
“I want to add that these aneurysms can rupture while at rest. There can be enough stress and strain placed on this weakened place that eventually it just ruptures at some time when even the patient might be asleep but I think that it is without question that any extra stress that would be placed on this blood vessel, particularly anything that would increase the pressure within it such as elevation of the blood pressure would be more apt to cause it to rupture quicker than it would if the stress were not placed upon it. ’ ’

In response to a hypothetical question, based upon the work that Bhea had been performing, the doctor stated,

“I would think that severe excessive physical exertion would at the time that this exertion was being performed would raise his blood pressure and this man had had a pre-existing moderate elevation of his blood pressure. ’ ’

The doctor concluded that the exertion by Bhea at his work contributed to the fatal hemorrhage, and he was definitely of the opinion that the rupture would not have occurred as quickly if the work activities had not been engaged in. On cross-examination, Dr. Henry testified that the increased pressure (caused by the work) could have caused the rupture either during the period of exertion or later.

Dr. Robert Watson, neurosurgeon of Little Rock, testified in behalf of appellees by deposition on August 25th. The doctor stated that he had read the transcript in detail, consisting of testimony taken on May 26, and on July 24. He was likewise of the opinion that the cause of Rhea’s death was a massive cerebral hemorrhage at the base of the brain, as described by the autopsy report. He was then asked the following question by counsel for appellees:

“Q. From the record that you have reviewed and your study of it, what is your opinion as to whether or not the work described in the record which Mr. Rhea did on the day of his death caused or was a causative factor in his death on that date?”

This question was objected to by counsel for appellants, who stated,

“I think you are going to have to detail out the exact facts on which you are questioning him. I think that is a broadside question just asking him of facts based on the entire record. I think he needs to detail it out and make it definite and certain.”

The objection was overruled, and Dr. Watson replied as follows:

“I reviewed the record pertaining to what different witnesses said in respect to the work that was done, the type of work, the time element particularly was considered, that the man went on to a supposedly normal lunch hour and returned back to work in a rather normal fashion and then abruptly showed evidences of being in severe difficulties and, based on the information that I gained from reviewing the record, I do not feel that the work that he did was a major factor in the abruptness of his. death after the lunch hour.”

Further, from the testimony:

“Q. With regard to the time of his death which occurred about one o’clock, can you give us your opinion, as to the time he sustained the cerebral hemorrhage?
“A. In view of those factors that I have just enumerated, I feel that the time element between the hemorrhage and the onset of symptoms and also the onset of death was certainly a brief time and by “brief” I mean a matter of minutes.”
Dr. Watson then stated that it is very common for people to suffer a brain hemorrhage while simply talking to someone, and “these hemorrhages are common occurring while they are watching TY or while they are driving a car or even in their sleep.”

From the record:

“ Q. Now in your opinion—I am rephrasing it again. Did the work that this man was doing on the morning of February 1st as reflected by the transcript in this case cause or directly cause the hemorrhage which occurred to his brain according to the record again about one o ’clock p.m. ?
“A. I reviewed the record as I say and from what information I have, the work did not cause the hemorrhage occurring around one p.m.”

The doctor was also of the view that Rhea’s work did not contribute in any manner to the hemorrhage. He said, “It is most unlikely and certainly highly speculative and I do not know how one would prove that the work that he did that morning would contribute to his accident. ’ ’

We are of the opinion that the judgment must be reversed, and the cause remanded to the commission. This conclusion is predicated on the fact that additional evidence was offered by the claimant on September 7, which was not available to Dr. Watson at the time he gave his opinion. This additional information consisted of “bedside notes,” “personal history and physical examination,” and an affidavit by E. B. Dodson. That affidavit is as follows:

‘ ‘ I am an employee of Shinn Funeral Home, Russell-ville, Ark., and was so employed on February 1, 1960. I was present in the office of Shinn Funeral Home on February 1, 1960, when the emergency call came in for an ambulance to pick up Boyce Rhea, deceased, at the M. K. Grocery Co., Inc., here in Russellville.
“When this call came in to the Funeral Home, it was answered by Mr. Avery Shinn. I looked at my watch as Mr. Shinn was taking the call, and at that time it was twelve minutes past twelve o’clock noon (12:12 p.m.), February 1, 1960.
“I accompanied Mr. Shinn with the ambulance to pick Mr. Rhea up. He was unconscious when we arrived at M. K. Gro. Co. Mr. Shinn and I delivered Mr. Rhea to the emergency room at St. Mary’s Hospital, Russellville, Arkansas, at approximately 12:22 p.m. or 12:23 p.m. I was present when Dr. Arnold Henry examined Mr. Rhea, and took his blood pressure, which was approximately 12:30 p.m. on February 1,1960.”

It will be recalled that Pearson testified that Rhea returned from lunch “right at 1:00 o’clock,” and suffered the attack shortly thereafter. Crain testified that Rhea returned from lunch about 12:40, and suffered the attack five or ten minutes later. Dodson’s affidavit indicates that the attack occurred about 12:10, so that there is a variance of nearly an hour between the testimony of Pearson and the affidavit by Dodson. It will be noted that Dr. Watson, in giving his opinion, emphasized the time element, as he said, “The time element particularly was considered, that the man went on to a supposedly normal lunch hour and returned back to work in a rather normal fashion and then abruptly showed evidences of being in severe difficulties, * * * . ” Appellees argue that the facts mentioned are immaterial, since Dr. Watson was of the opinion that death, or complete inability to continue work, would have occurred within a few minutes. We do not agree. Inasmuch as the referee’s finding was based almost entirely on the testimony of Dr. Watson, we feel that the facts should be clearly ascertained. The doctor considered that Rhea took a “normal lunch hour.” This term needs clarification. What is meant by a normal lunch hour? Does this have reference to the fact that Rhea left for lunch at his regular time? Does it mean that he was apparently feeling as well as usual, or that he partook of an average meal? Does the quoted statement have reference to the amount of time spent away from work during the noon period? Under common usage, a normal “lunch hour” is probably considered as one hour, as denoted by the term itself. Pearson testified that Rhea went to lunch at 12:00 o’clock, and returned at 1:00 P.M., and yet Dodson’s statement, which was not in the record at the time Dr. Watson read same, relates that the call for the ambulance occurred at 12 minutes after 12:00. Since Dodson made a record of the time, it would appear that his statement was correct. Under the testimony of either fellow worker, Rhea could not have gone to lunch before 11:30. On the other hand, if Pearson was an hour “off” on the time that Rhea went to, and returned from, lunch, Rhea would have left the plant at about the time of the severe headache complained of at 11:00 A.M. Certainly, it would seem that this point could be more clearly developed. It may be that Dr. Watson’s opinion (as to whether the work contributed to the injury) will remain unchanged, irrespective of whether Rhea went to lunch at 11:00 A.M., 11:30 A.M., or 12:00 noon, and it may be considered inconsequential as to whether he remained off during the lunch period for 10 minutes, or an hour—but, as stated, inasmuch as the denial of compensation was based upon the doctor’s evidence, we feel that these matters are deserving of clarification. This is particularly true since the conflict in evidence is closely related to the objection appellants made (the fact that Watson’s opinion was not elicited by a hypothetical question).

Appellants vigorously argue that the referee and commission committed error in permitting the doctor to give his opinion simply by reviewing the entire record, rather than requiring appellee’s counsel to obtain the doctor’s opinion through a hypothetical question embracing pertinent facts, since under the latter procedure, the commission and parties would clearly have known the basis for the doctor’s opinion. Appellees defend the method used, and both sides cite several tort cases in support of their positions. Cases cited by appellees deal with situations wherein doctors listened to testimony in the court room and were then permitted to express their opinions. This question is just now arising in compensation cases, and we think a definite rule should be fixed. It is, we think, noteworthy, that in a majority of the cited cases where the practice was permitted, the doctor’s opinion was given after listening to the testimony of, or being interrogated about the findings of, only one witness. This is in line with the views of most of the authorities examined. In McCormick on Evidence, Chapter 3, Section 14, Page 30, we find:

“In many jurisdictions, if seems customary to have the expert witnesses in court during the taking of testimony, and then when the expert is himself called as a witness, simplify the hypothetical question by asking- the expert to assume the truth of the previous testimony, or some specified part of it. This practice has some advantages, and some limitations. Two obvious requirements are that the facts that the witness is assuming must be clear to the jury, and that the data assumed must not be conflicting. A question which asked the witness to assume the truth of one previous witness ’ testimony will usually meet these requirements, but as the range of assumption is widened to cover the testimony of several witnesses, or all the testimony for one side the risk of infraction is increased, and when it covers all the testimony in the case, the question would manifestly be approved only when the testimony on the issue is not conflicting and is brief and simple enough for the jury to recall its outlines without having them recited. ’ ’

In 32 C. J. S., Section 554, Pages 362 and 363, appears the following:

“A desire to economize time has led a number of courts to sanction the practice, in eases where the facts are undisputed, of dispensing with, a recital of facts in a hypothetical question and asking the witness to state his judgment “upon the evidence,” or even on such a part of it as is material to the inquiry, although it is conceded to be the better practice to proceed in the regular manner and frame a hypothetical question, one objection to the question on the evidence being that the witness may not be able to remember all the testimony, and to allow him to proceed on what he chances to recollect deprives the parties of any knowledge as to the real basis of his inference. The witness must, of course, have heard the evidence, or be familiar with it, and the question must require him to assume that it is true. * * *
“In some jurisdictions the practice of allowing an expert witness to ascertain the facts directly from the evidence, instead of their being embodied in a hypothetical question, has been condemned and generally disallowed, and even where the practice is allowed it is subject to limitation, and even to curtailment, in the discretion of the court. A question “upon the evidence” should never be permitted where the facts are in dispute, and the testimony is voluminous and complicated, for the reason that such a practice necessarily involves an invasion of the province of the jury, whereas the function of the witness is not to decide on the facts but to assume their truth, and for the further reason that, as the answer of the witness would disclose nothing as to his view of the facts, it would be impossible to tell what facts were used by him in forming his judgment.”

In Arkansas Baking Company v. Wyman, 185 Ark. 310, 47 S. W. 2d 45, we stated that the better practice in obtaining the opinion of an expert witness is by the use of the hypothetical question.

In Holstein v. Quality Excelsior Coal Co., 230 Ark. 758, 324 S. W. 2d 529 (compensation case), a doctor gave an opinion based upon a study of the autopsy report and a hospital record. We approved this on the basis of the fact that the autopsy report is a statement of facts rather than an expression of an opinion, and we also approved the use of the patient’s clinical history and hospital reports, stating, “These documents were undoubtedly admissible under the statutes that govern in compensation cases, Ark. Stats. 1947, §§ 81-1323 and 81-1327; * * * . ”

The reasonableness of requiring expert opinions in compensation cases to be given in response to hypothetical questions can hardly be disputed. In the first place, these cases frequently involve several hearings, and sometimes extend over a period of months. Furthermore, there is often considerable testimony, much of it at variance. It is somewhat doubtful that an expert, while testifying, could keep all of the facts clearly in his mind; certainly, he will give preference to some facts over others, as being more important or pertinent to the issue. The commission, as well as the attorneys, are entitled to know the basis of the expert’s opinion. If a doctor is permitted to simply read the entire record, and thereafter give his opinion, based upon that record, without stating the particular testimony, or facts, upon which the opinion is based, he actually becomes a trier of the facts, and thus usurps the function of the commission.

In Hulsizer v. Johnson-Brennan Construction Co., 232 Ark. 571, 339 S. W. 2d 116, we reversed the finding of the commission, holding that a medical expert, in answering a hypothetical question, assumed a fact not in evidence. In the case before us, it is established that Dr. Watson’s views were expressed after reading a record that did not contain all of the possibly pertinent evidence; “established,” we say, because the evidence had not even been introduced at the time he gave his opinion. This is certainly not to say that opinions of doctors should never be obtained until all evidence has been introduced; nine times out of ten the instant situation would not arise, since it is assumed that the commission considers all evidence in reaching its determination. However, where it is not known what testimony the expert relied upon, and part of the testimony is clearly in conflict with later evidence offered, and appears relevant (from the statement of the expert himself) to the issue involved—and where the testimony of such expert is the sole basis for the commission’s finding, we are firmly of the view that such expert should have an opportunity to review the additional evidence.

For the reasons herein set out, the judgment of the Circuit Court, affirming the commission, is reversed, and the cause is remanded to the Circuit Court with directions to reverse the commission’s finding, and remand the cause to the commission for further proceedings in accordance with this opinion.

       According to Dr. Henry, this is the medical descriptive term for the weakening of the wall of an artery. “These aneurysms are of different etiology or cause, caused by different things. First, you can have a congenital aneurysm and by that I mean that the individual is horn with a weakness in the wall, of the blood vessel and this weakened area becomes ballooned out as would a weak place on an inner tube and then with the stress and the strain of life, the increase in the pressure in the blood vessel, the aneurysm ruptures. These are usually called a Berry aneurysm because when you look at them in the unruptured state they look like a little berry, a little red, say, raspberry. You also get aneurysms in arteries which are due to degenerative disease of the wall of the blood vessel. Most of these are due to arteriosclerosis which weakens the wall of the blood vessel or due to atherosclerosis of the lining of the blood vessel which weakens it and allows blood to escape in to the wall of the blood vessel and weaken it. * * * It is possible to get an aneurysm due to traumatic injuries such as a gun shot wound or a knife wound which partially severs the wall of a blood vessel and weakens it so that it subsequently dilates in the region of the injury.”

       Dr. Watson explained that under the overall term “hemorrhage of the brain,” a person could, in theory, have survived for “maybe days and weeks,” but, bearing in mind the nature of the hemorrhage and the location, this could not have been true in Rhea’s case, i.e., he did not suffer the hemorrhage at 11:00 A.M. Actually, Rhea did survive for three hours, but was unconscious during the entire period of time.

       Dr. Watson testified that the increased blood pressure caused by the strain of lifting cases should have receded to normal limits within a matter of from five to ten minutes after the exertion, and he stated, “whether or not it would remain high for three hours is just medically speculative, most remote and I don’t know of any experimentation that ever substantiates blood pressure staying up after three hours after a transient exertion.”

       We, of course, do not mean to imply that the expert should not read the record in advance.


author: Ed. F. McFaddin, Associate Justice.

text:
    City of Newport v. Smith.
    5-3040
    367 S. W. 2d 742
    Opinion delivered May 20, 1963.

      McDaniel, Ward & Mooney, for appellant.

      Kaneaster Hodges and Wayne Boyce, for appellee.
   Ed. F. McFaddin, Associate Justice.

On August 21, 1962, an election was held in the City of Newport on the issue of the City Manager form of municipal government. The official returns showed 888 votes against the City Manager plan, and 866 for the plan. In due time, the appelles herein instituted this election contest, claiming a number of named persons to have voted illegally. The contestees (appellants herein) cross complained and challenged a number of named voters. Trial in the Circuit Court resulted in a judgment finding and declaring that there were 849 legal votes for the City Manager plan, and only 834 legal votes against it. Thus, the Circuit Court judgment showed a majority of 15 votes for the City Manager plan; and from that judgment there is this appeal by the contestees, presenting the points herein discussed.

I. Convicted Felons. The contestants challenged a number of named voters, claiming: “The following-persons voted against the passage of said measure whose votes were illegal for the reason that each one had prior to said election been convicted of a felony and was therefore not a qualified elector and was ineligible to vote: ...” To that allegation, the contestees filed a special demurrer because the contestants had failed to negative the possibility of a pardon of the convicted felon. The Trial Court denied the demurrer, and we see no error. Section 3-101 Ark. Stats., in discussing persons disqualified, says:

“No one who has been convicted of any offense which is a felony at the common law, or by statute, shall be allowed to vote in any election in this State, unless such person shall have been pardoned by the Governor, and the record of the court wherein such person shall have been convicted shall be conclusive evidence of his conviction.”

The contestants alleging the disqualification had the burden of proving- the felony; and in the offering of such proof the contestees could easily have established that there had been a pardon. Certainly in the pleadings stage, the Trial Court was correct in overruling the contestees’ demurrer.

II. Irregularities In Box 1-A. The election officials of this box failed to place the number of the voter on the stub, as required by the statute: rather, the election officials endorsed the number of the voter on the back of the ballot, and the list of numbers on the tally sheet was from 1 to 110, consecutively, as the ballots had been numbered. The fact that the judges had not endorsed the number on the stub of each ballot was not contained in any of the pleadings. It was only when the box was opened that the irregularity was discovered. Appellants then claimed that since the election officials had failed to comply with the statute, no votes should be stricken from the Box 1-A. The Trial Court was correct in rejecting the appellants’ argument. There was no allegation of fraud in the Box 1-A; and it was not until the box was opened that it was discovered that the judges had endorsed the numbers on the back of the ballots instead of on the detachable stubs. In the absence of any allegation of fraud, it would be putting-form above substance to refuse to discard illegal votes from this box merely because the election officials put the number on the back of the ballot instead of on the detachable stub.

III. Irregularities In Box 1-B. Ballots Nos. 24 and 49 were challenged in this box; and when the box was opened to identify the challenged ballots it was discovered, for the first time, that the box was entirely empty. Thereupon, contestees (appellants here) moved:

“In the absence of any ballots being found in the official ballot box 1-B by which the Court may determine whether any challenged vote was cast ‘for’ or ‘against’ the City Manager proposition, defendants request the Court to declare that the integrity of box 1-B has been wholly destroyed, and that the results certified by the election commissioners for box 1-B be completely discarded and the results thereof subtracted from the ‘for’ and ‘against’ totals in the election as a whole.”

Tlie Court wisely reserved ruling on the motion until the conclusion of the litigation; and then when Box 1-A was opened there was found in Box 1-A a manila envelope containing what the Court found to he the original official ballots that had been cast in Box 1-B. In other words, the ballots from Box 1-B had been placed in a manila envelope and then placed in Box 1-A instead of in Box 1-B. The integrity of the ballots in Box 1-B was not completely destroyed. The appellants did not allege or attempt to prove any fraud by any of the election officials in Box 1-B. Only two questioned ballots were involved; and it would certainly be a deprivation of the right of franchise to the other voters in Box 1-B to have their entire ballots thrown out, when only two votes in the box were questioned. The Trial Court correctly overruled the defendants’ motion, as above copied.

At the beginning of the trial the Court announced the procedure in the election contest; and no one disagreed. Here was the announcement by the Court of the procedure :

“From this point on there will be no more amendments to the pleadings except the addition of names, if either side should choose to make that sort of an amendment, from issues already raised by the pleadings. In other words, the pleadings are settled as of this time. The procedure that we will follow will be that the contestants will be permitted to challenge and possibly disqualify all the votes that they question first, then the contestees will be permitted to challenge and possibly disqualify all of the votes which they question because both sides have questioned the legality of various votes. The Court will rule on each of these challenged votes compiling a list as we go and when this list is completed the record will be closed as far as evidence is concerned. The Court will then order the necessary ballot boxes, if any, brought to the courtroom at which time we will determine how many illegal votes were cast and these will be deducted from the certified totals.”

Under this procedure only the challenged ballots were involved, and not the unchallenged ballots, and the motion by contestees (appellants here) to discard the entire box was without merit.

IV. The Absentee Box. This box presents the most flagrant violation of election laws of which honest election officials could have been guilty, and gives us most serious concern ; but we emphasize that there is not the slightest allegation or suspicion of fraud; and it is this entire absence of any allegation or evidence of fraud of corruption that accounts, in a large measure, for the conclusion we reach on this absentee box. The contestees (appellants) insisted that the integrity of the box had been destroyed because: (a) one of the election officials tore up some of the ballots; (b) the absentee box was never delivered to the proper official at the court house; and (c) the box and the ballots cannot be found.

The evidence established that the judges and clerks of the absentee box counted the votes in the office of the County Clerk the night of the election, with a group of people present, varying from a few to more than a score. As each ballot was taken out of the box, the name of the voter was called, and how such person had voted, that is, “for” or “against’’ the City Manager plan. This list was compiled on a form for certificate of judges and clerks at the election (§ 3-1007 Ark. Stats.), but those counting the ballots had written “For” at the head of one column, and “Against” at the head of the other column; and the name of the voter was placed in the column as he had voted. Thus, all secrecy of the ballot was completely destroyed. A total of 88 votes were cast in the absentee box: 67 had voted for the City Manager plan, and 21 had voted against it. When the 88 votes were compiled, two of the election judges and one of the clerks signed the form and left it on the table in the County Clerk’s office; and this form remained in the County Clerk’s office. In a day or two, the Clerk requested the Circuit Judge to impound the form; and it was introduced in evidence in this case as Exhibit No. 17. This Exhibit No. 17 is all that was introduced from the absentee box. The ballots were scattered and lost; and this one Exhibit No. 17 is all that remains.

In the trial the Circuit Court accepted the Exhibit No. 17 as valid; and, using it as a basis, held seven votes to have been illegal in the absentee box. The question is whether we should allow this Exhibit No. 17 to be used to show the result of the absentee box. We need not mention the numerous sections of the statutes that were violated by the election officials of the absentee box: the question is whether the entire absentee box should be discarded, or whether only the challenged individual votes should be thrown out; and we emphasize again that there were no allegations of fraud or corruption against the officials of the absentee box.

We think the answer to our problem is contained in the case of Dixon v. Orr, 49 Ark. 238, 4 S. W. 774. In that case, no return was ever made from Little Biver Township in Miller County in the election for the office of Sheriff; and Dixon contended that the entire box should be suppressed. The box and tally sheets had been lost entirely, and “the election officers displayed a remarkable deficiency of memory as to the state of the vote.” But there were two witnesses who were present when the entire vote was counted in the box, and they testified that 114 votes were cast in the precinct; and of these Dixon received 27, and Orr 87. Such testimony was permitted to stand as the return from that box. The Court said:

“The real inquiry is, who received a majority of the legal votes cast in Miller County for the office of Sheriff ? Upon a contest all such votes must be counted, whether they were returned or not. Constitution of 1874, art. 3, sec. 11; Govan v. Jackson, 32 Ark. 553. Where an election has been legally held and fairly conducted, nothing will justify the exclusion of the vote of an entire precinct except the impossibility of ascertaining for whom the majority of votes were given.
“Now, the poll books and tally sheets made out and properly certified by the election officers, and the ballots themselves, are the primary evidence of the result of an election. But if these are lost, destroyed or stolen, this does not destroy the validity of the count, but resort must be had to secondary evidence.”

The authenticity and correctness of the Exhibit No. 17 introduced in the case at bar was thoroughly established. It shows the name of each person who voted an absentee ballot, and exactly how that person voted, and no one has attempted to dispute the correctness of the exhibit. In the absence of fraud or corruption, the Exhibit No. 17 should stand. We have a number of cases which hold that a voter is not to be disfranchised because of the failure of the election officials to obey all the election laws. Henderson v. Gladish, 198 Ark. 217, 128 S. W. 2d 257. In Baker v. Hedrick, 225 Ark. 778, 285 S. W. 2d 910, we quoted Judge Eakin’s language in the case of Patton v. Coates, 41 Ark. 111, as to the quantum of evidence required to destroy the integrity of an entire box:

“ ‘The wrong' should appear to have been clear and flagrant; and in its nature, diffusive in its influences; calculated to effect more than can be traced; and sufficiently potent to render the result really uncertain. If it be such, it defeats a free election, * * * . If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected.’ ”

In Jones v. Glidewell, 53 Ark. 161, 13 S. W. 723, Chief Justice Cockrill said:

“It is a serious thing to cast out the votes of innocent electors for acts done by others, and it is the province of courts to see that every legal vote cast is counted where the possibility exists.”

We therefore conclude that, in the absence of proof of fraud or corruption, and in the absence of evidence going to destroy the integrity and correctness of Exhibit No. 17, the Trial Court was correct in refusing to cast out the entire absentee box, and was correct in allowing Exhibit No. 17 in evidence.

Y. Individual Ballots. The remaining questions raised by the appellants relate to the correctness of the rulings of the Trial Court regarding the ballots of individual electors. The appellants claim that in thirteen instances the Trial Court held voters ineligible when, in fact, each such voter was eligible. Also the appellants claim that the Trial Court erred in refusing to cast out nineteen votes. It would unduly prolong this opinion and serve no useful purpose to discuss each of these ballots, give the factual situation, and the ruling of the Court thereon. In each instance it was a disputed question of fact as to the residence of the voter; and the determination of such question by the Trial Judge is as final and conclusive as is the verdict of a jury. Logan v. Moody, 219 Ark. 697, 244 S. W. 2d 499; Williams v. Buchanan, 86 Ark. 259, 110 S. W. 1024. We have carefully examined the evidence as to each of the thirty-two ballots in question, and conclude that no reversible error has been shown by appellants.

The judgment is affirmed.

       Section 3-831 Ark. Stats, provides: “Every qualified elector shall be furnished with one (1) ballot. Before delivering- the ballot to the elector the Election Judge shall endorse his initials on the upper back (or outerside) of the ballot. A Judge shall also place the number of the voter (which is a designation of the order of his appearance according to the List of Voters) in the blank space in the lowest one (1) inch on the face of the ballot following the words ‘List of Voters Number . . .’ ”

       The allegations of the contestees regarding this absentee ballot box are as follows: “Contestees allege that for the election held on August 21, 1962, in Newport, Arkansas, there was provided a separate and special ballot box for the reception of ‘absentee’ ballots. The ballots in said Absentee Box were counted under the supervision of (the three named Judges). The clerks on the Absentee Box were (named). During the process of counting the ballots in said box, it was observed that (one Judge) was tearing up ballots as they were counted and tossing the remnants in a waste basket. It is not known how many ballots this Judge destroyed before, his acts were discovered and stopped. Notwithstanding the fact that this Judge probably did not know he was violating a law, his actions utterly destroyed the integrity of the absentee box. When the count of ballots in the Absentee Box was almost complete, (one Judge) departed, leaving the ballot box in the custody of (the other election officials). The said Absentee Ballot Box has never to this day been delivered by either of said Judges—nor anyone else—into the custody of either the County Clerk or the County Treasurer. Although contestees, through their attorneys, have made a diligent effort to locate said ballot box, it has not been found. The integrity of the votes cast in the Absentee Ballot Box has been utterly and completely destroyed and the returns from said box should be purged from the totals cast up by the election officials.” We have omitted from the quotaton only the names of the Election Judges and Clerks, and indicated by parenthesis in each instance where such omission appears.


author: George Eose Smith, J.

text:
    Helmerich v. Simpson.
    5-3008
    370 S. W. 2d 45
    Opinion delivered May 20, 1963.
    [Rehearing denied September 9, 1963.]

      William It. Ilorhey, Tulsa, Olda., Jeff Duty, for appellant.

      Little & Enfield, E. J. Ball, for appellee.
   George Eose Smith, J.

In 1960 the appellees brought suit against the appellant, seeking to have a refinancing agreement declared to be in fact a mortgage. The case was tried on June 29, 1961. At the end of the hearing the chancellor announced his decision in favor of the plaintiffs and allowed twenty days within which they might redeem the land, by paying the debt with interest. The chancellor made a docket entry summarizing his decision, but he stated orally that the interest would have to be calculated by counsel.

The necessary calculations were made promptly, and a final decree was prepared. It was signed and dated by the chancellor on July 3, 1961, which was the first day of a new term of court. The decree allowed the debtors twenty days in which to redeem their property by paying the sum of $51,779.19, plus interest from the date of the decree. It was further provided that if the plaintiffs failed to redeem the property the lien would be foreclosed, and a commissioner was appointed to sell the land at public auction.

The plaintiffs paid the required amount of money into the registry of the court on July 21, 1961. The defendant refused to accept the tender and took an appeal. We affirmed the decree upon the only issue that was argued, holding that the chancellor was right in declaring the refinancing agreement to be a mortgage. Helmerich v. Lowrance, 235 Ark. 280, 359 S. W. 2d 447.

After our affirmance the plaintiffs asked the chancellor to enforce his decree by contempt proceedings. The defendant contended that the deposit in the registry of the court on July 21 had come too late, since it was more than twenty days after the chancellor announced his decision on June 29. The trial court rejected this contention, holding that the twenty days ran from the entry of the formal decree on July 3. This is an appeal from a decree vesting the title in the plaintiffs and declaring the mortgage debt to be satisfied in full.

The appellant now argues that the original decree, granting twenty days for redemption, was rendered on June 29, that the chancellor was without power to extend the time after the term of court had lapsed, and that therefore the court was without jurisdiction to enforce an offer of redemption made more than twenty days after June 29, 1961.

This argument is unsound. In the first place, the issue is res judicata. The plaintiffs, three days after having paid the money into court, filed a petition asking that their right of redemption be enforced. The appellant resisted the petition upon the precise ground now urged— that the deposit had come too late. On July 27, 1961, the chancellor specifically found that the twenty-day period ran from July. 3, the date of the formal decree. The defendant filed a notice of appeal from this order and also sought a writ of prohibition. In denying the application for prohibition we said: “Prohibition is not to be used as a substitute for an adequate remedy of appeal. Whether the date of the decree was June 29th or July 3rd is a disputed question. The Trial Court held on July 27th that the twenty days for tender ran from July 3rd rather than from June 29th. If the Court was in error, such ruling may be corrected on appeal.” Helmerich v. Butt, 233 Ark. 795, 348 S. W. 2d 878. Thus the appellant was warned that the issue should be raised by appeal. Yet, despite the fact that notice of appeal had been given both with respect to the decree of July 3 and the order of July 27, the question decided by the latter order was not argued upon the first appeal. Under our settled rule the affirmance was conclusive not only of the issues presented but also of those that might have been presented. Storthz v. Fullerton, 185 Ark. 634, 48 S. W. 2d 560.

Secondly, the appellant’s contention is not sound upon its merits. The Benton Chancery Court had in effect a standing order that provided in substance that docket entries would be effective only until superseded by the formal decree, which would then constitute the order of the court. In the same vein, the chancellor’s oral decision of June 29 was known to be incomplete, since the amount of the interest due had still to be computed. The parties certainly knew that the court’s final word was being deferred until the preparation and approval of the decree. In the circumstances we think the court had the power to act even in the new term. See Wright v. Ford, 216 Ark. 55, 224 S. W. 2d 50.

Affirmed.