author: Ed. P. McFaddin, Associate Justice. Sam Robinson, Associate Justice,

text:
    Pellegrini v. Wolfe, Judge.
    4812
    283 S. W. 2d 162
    Opinion delivered October 31, 1955.

      Reartsill Ragon, for petitioner.

      Tom Gentry, Attorney General, and Thorp Thomas, Asst. Atty. General, for respondent.
   Ed. P. McFaddin, Associate Justice.

This is a petition for writ of procedendo ad judicium ; and necessitates consideration of a situation wherein the accused demands a trial in Arkansas even though he is presently incarcerated in another State.

Petitioner Prank E. Pellegrini filed in this Court his petition for a writ of procedendo ad judicium against Honorable Paul Wolfe, Judge of the Sebastian Circuit Court in the 12th Judicial Circuit of Arkansas. The duly verified petition alleged: (a) that petitioner was, and had been since November 13, 1953, confined in the Texas Prison System at Huntsville, Texas (serving a 15-year sentence for robbery by assault); (b) that on January 13, 1954 the Prosecuting Attorney of the 12th Judicial Circuit of Arkansas (Honorable Paul Gutenson of Sebastian County) sent a warrant/detainer to the Texas Prison System stating that Pellegrini was accused of robbery committed in Sebastian County, Arkansas on January 11, 1953 and should be delivered to Arkansas authorities; (c) that Pellegrini is anxious for, and entitled to have, a speedy trial in Arkansas on the charge pending against him in Sebastian County; (d) that Pellegrini asked the United States District Court for the Western District of Arkansas to have him extradited to Arkansas for trial in the Sebastian Circuit Court but such relief was refused on the ground that the Arkansas Courts had jurisdiction; (e) that Pellegrini has asked the Sebastian Circuit Court to have him brought to trial in Arkansas for the said offense alleged to have been committed in this State, but the Sebastian Circuit Court has refused his request; (f) that the effect of the warrant/detainer filed by the Arkansas Prosecuting Attorney with the Texas Prison System is to prevent Pellegrini from receiving trusty privileges or parole privileges; and (g) that petitioner is entitled to either a speedy trial on the Arkansas charge, or is entitled to have the warrant/detainer recalled and the Arkansas charge dismissed. The prayer of Pellegrini’s petition was for dismissal of the information, or, in the alternative, that this Court require the Judge of the Sebastian Circuit Court to have proper steps taken to bring Pellegrini to trial on the information which the Prosecuting Attorney had filed against Pellegrini in Sebastian County.

Pellegrini filed his own pleading in this Court, and along with the pleading there was a petition and affidavit praying that he be allowed to proceed in forma pauperis. We allowed the petititon to be filed and appointed Honorable Heartsill Ragon of the Port Smith Bar, to represent Pellegrini in this proceeding. Mr. Ragon entered into the discharge of his duties and has filed a brief and a reply brief in this Court, and is hereby commended for the conscientious discharge of his duties. Pellegrini makes the contentions now to be discussed.

I. Petitioner’s Claim for Discharge. Section 43-1708, Ark. Stats., comes to us from § 169 of Chapter 45 of the Revised Statutes and has been many times before this Court. The section reads:

“If any person indicted for any offense, and committed to prison, shall not he brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.”

Pellegrini says that if the information was in fact filed against him in Sebastian County in 1953 (as he has been advised by the Prosecuting Attorney) then more than two terms of Court have passed since such filing and Pellegrini claims he is' entitled to discharge under the above quoted Statute, citing, inter alia: Stewart v. State, 13 Ark. 720; Ware v. State, 159 Ark. 540, 252 S. W. 934; Fulton v. State, 178 Ark. 841, 12 S. W. 2d 777; Bishop v. State, 209 Ark. 1013, 193 S. W. 2d 489; Ponzi v. Fessenden, 258 U. S. 254, 66 L. Ed. 607, 42 S. Ct. 309, 22 A. L. R. 879.

But the defect in Pellegrini’s contention for discharge rests in the fact that he has never pursued the correct procedure to bring himself within that Statute. From the Texas prison he is now trying to say to Arkansas: “I am ready for trial”; yet the fact remains that ever since 1953 he has been beyond the jurisdiction of this State and incarcerated by a Sister State. Even now he is asking Arkansas to use its Sovereign Request to extradite him from Texas in order to stand trial here. In Fulton v. State, 178 Ark. 841, 12 S. W. 2d 777, we held that a prisoner in the Arkansas prison could invoke the two-term-discharge Statute; but in Lee v. State, 185 Ark. 253, 47 S. W. 2d 11, we held that a prisoner in a Federal prison could not avail himself of the two-term-discharge Statute until he had first requested trial in Arkansas and until it was shown that Arkansas could have secured his extradition if request had been made. We used this language:

“Appellant made no effort to demand trial while he was imprisoned in the United States Penitentiary, which lie could have done; and the fact that the State could have procured his presence in her court for trial on the indictments and did not do so deprived him of no right he was entitled to; and the court did not err in denying his motion for a discharge from the indictments pending in her court. ’ ’

The case at bar is governed by the Lee case: Pellegrini is not now entitled to claim relief under the two-term-discharge Statute because he is only now bringing himself within the purview of the Statute.

II. Duty on Arkansas to Seek Extradition. In the alternative Pellegrini claims that Arkansas should now seek to extradite him from Texas for trial in this State ; and with this contention we are in agreement. As pointed out in Lee v. State, supra, Pellegrini has a right to ask Arkansas to bring him here for trial; and since such demand has now been made, the Arkansas Court (in this instance the Sebastian Circuit Court) should require the Prosecuting Attorney (if he desires to try Pellegrini) to seek extradition at the Executive level and to pursue the matter with due diligence.

Arkansas should request Texas to let Arkansas have Pellegrini for trial. If Texas refuses, then Arkansas has done all that is possible* and the two-year-discharge Statute will not inure to the benefit of Pellegrini. If Texas requires, as a condition for granting such extradition, that Pellegrini execute some kind of waiver, then, unless Pellegrini will accomplish such waiver, he has not brought himself within the purview of the Statutory provision relating to two-term-discharge. If Texas does agree to the extradition on conditions met, then Arkansas must extradite and try Pellegrini with dne diligence or Pellegrini will be entitled to have the charges dismissed and .the warrant/detainer cancelled.

The writ of procedendo ad judicium is granted, as herein stated.

Mr. Justice Robinson dissents.

Sam Robinson, Associate Justice,

dissenting. I dissent in this case because more than two terms of court have elapsed since the warrant for Pellegrini’s arrest was issued and no extradition proceeding calculated to bring him to trial has been instituted. It is my opinion that the Prosecuting Attorney should be directed to withdraw the warrant he has heretofore filed with the superintendent of the Texas Penitentiary for the arrest of Pellegrini because no attempt was made to extradite him within the two terms of court. The warrant in question was obtained from the Municipal Court of Port Smith on January 20, 1953, and filed with the superintendent of the Texas Penitentiary. The warrant in itself may cause Pellegrini to serve as much as 10 years in the Texas prison that he would not have to serve except for the warrant. Section 12, Article 781b, Texas Criminal Code, provides that a prisoner is eligible for parole after serving one-third of his sentence. But, it is a common practice for prison officials to deny parole where the prisoner, if given clemency, would merely be turned over to another State for trial. In addition, because of the Arkansas warrant for the arrest of Pellegrini, this prisoner will not be allowed privileges he might have otherwise enjoyed. Certainly he would not be made a trusty. This denial of privileges and 10 years additional penal servitude is all brought about merely by the filing of a warrant charging the defendant with an offense for which he is not likely to be tried after 15 years have expired.

No charge has been filed against Pellegrini in the Circuit Court and there has been no indictment returned by a grand jury and no felony information filed by the Prosecuting Attorney. An information filed in Municipal Court or a Justice of the Peace Court by the Prosecuting Attorney-for the purpose of obtaining a warrant for arrest is not a felony information upon which one can be tried in the Circuit Court.

Pellegrini is serving a 15 year sentence in Texas, and due to the warrant from Sebastian County being in the hands of the superintendent of the Texas prison, he will have to serve the entire 15 years. He will not get a parole after serving 5 years • — ■ one-third of his sentence. During the 15 years he is serving his sentence in the Texas prison, several prosecuting attorneys will have been elected in Sebastian County and will have completed their terms of office. As heretofore stated, there is no case pending against Pellegrini in the Sebastian Circuit Court. At the end of the 15 years no one is likely to remember the case. At that time, when the Texas officials notify the Sebastian County officials that Pellegrini is to be released and that the Arkansas warrant can be served, then it is very probable that the warrant will be withdrawn. It will be impractical to try him. The case will be stale, witnesses not available or unable to identify the defendant after such a long lapse of years.

We have held that where a prisoner is serving a sentence in the Arkansas Penitentiary, and there is another charge pending against him in a court of this State, he must be brought to trial within two terms of court or the charge must be dismissed. Fulton v. State, 178 Ark. 841, 12 S. W. 2d 777. Ark. Stats. § 43-1708 provides: “If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.”

Of course, the Arkansas officials may not be able to obtain custody of a prisoner serving a sentence in a sister State, but there is no good reason why an effort should not be made within two terms of court to bring him to trial by the institution of extradition proceedings. It is a policy of the federal government to cooperate with the States and permit federal prisoners to be tried on charges pending against them in the State courts while they are still federal prisoners. Ponzi v. Fessenden, 258 U. S. 254, 42 S. Ct. 309, 66 L. Ed. 607. There is no reason why the several States should not also cooperate.

Filing a warrant with a superintendent of a prison, where the prisoner for whom the warrant has been issued has not been charged by a grand jury indictment and where no felony information has been filed by the prosecuting attorney in a court of record, is a vicious practice and should not be tolerated. In many instances, men are serving sentences in penal institutions where there is a warrant from another State pending against them, and they do not even know of the existence of such a warrant. Even if they are informed of the warrant, they usually have no idea of their rights in the matter and are helpless and unable to do anything about it. Pellegrini’s initiative is certainly unusual, as proven by the fact that his is the first petition of its kind to be filed in this court.

       See Rodgers v. Howard, Judge, 215 Ark. 43, 219 S. W. 2d 240, wherein we had occasion to consider a writ of procedendo ad judicium and our authority to issue such a writ under our power of supervision.

       The files reflect that the Texas prison officials then replied that Pellegrini could not be delivered to the Arkansas authorities until conclusion of his sentence, unless the Chief Executive of Texas should order otherwise.

       See Art. II, § 10 of the Arkansas Constitution.

       This section is sometimes referred to as the “two-term-discharge” Statute; and will be so referred to in this opinion.

       Arkansas adopted the then Uniform Criminal Extradition Act in 1935 (Act 126 of 1935, see § 43-3001 Ark. Stats.). Texas adopted a later version of the Uniform Criminal Extradition Act by its Chapter 438 of 1951. See Vernon’s Anno. Code of Criminal Procedure, Art. 1008(a). For an Arkansas case considering our Criminal Extradition Act see Gulley v. Apple, 213 Ark. 350, 210 S. W. 2d 514. For a case somewhat like the one at bar see People v. Peters, 101 N. Y. Supp. 2d 755, in which certiorari was denied by U. S. Sup. Ct., 347 U. S. 906, 98 L. Ed. 1064.

       Some of the Judges are in doubt as to whether the information filed by the Prosecuting Attorney in the Municipal Court of Fort Smith was ever pursued by being' docketed in the Circuit Court. We leave it to the Circuit Court to exercise its power over the Prosecuting Attorney and the Municipal Court in keeping with this opinion.


source: Caselaw Access Project

author: Minor W. Millwee, Associate Justice.

license: Public Domain

text:
    Roth v. Prewitt.
    5-749
    283 S. W. 2d 155
    Opinion delivered October 31, 1955.

      Sims & Clarke and James A. Ross, for appellant.

      William K. Ball, Lamar Williamson and Adrian Williamson, for appellee.
   Minor W. Millwee, Associate Justice.

Appellant, Clarence J. Roth, rented about 250 acres of land in Drew County from appellee, T. A. Prewitt, for the production of rice and soy beans in 1948 under a written rent contract executed by the parties on April 17, 1948.

On March 18, 1949, appellant brought this suit seeking damages for an alleged breach of the rent contract by appellee in failing to furnish sufficient water to make a full rice crop. Damages were also sought on account of appellee’s alleged illegal seizure of certain farm equipment upon which he held a mortgage to secure certain advancements made to appellant under the rent contract. Appellee denied any breach of the contract on his part and asked for foreclosure of the chattel mortgage. Pending a long drawn out trial by depositions taken over a period of several years, the chancellor appointed a receiver who sold the mortgaged property at public sale to appellee under an order requiring retention of the sale proceeds until final determination of the suit. This appeal is from a decree dismissing appellant’s complaint and entering judgment for appellee on his cross-complaint in the amount of the balance due on the mortgage indebtedness after deducting the proceeds of the foreclosure sale.

The primary issue here is whether, under the terms of the written rent contract, appellee was obligated to furnish sufficient water to make a full rice crop in any event and regardless of the source of such water supply, or, whether he was only obligated to furnish the pumps, power unit and fuel necessary to pump water from a certain brake to the extent that it was available for the purpose of irrigating the rice. The only provision of the contract bearing directly on this question is set forth under the heading “Obligations of Lessor,” and reads: “B. Water: The Lessor will provide pump, pipe, and power unit sufficient to lift water from the Brake surrounding said land to be farmed and will furnish fuel and oil to operate said power unit.” Under another provision of the contract, appellant, as Lessee, agreed “to operate the pump which will furnish water for said rice lands.”

An unusual and severe local drouth in the summer of 1948 caused a scarcity of water in the brake surrounding the rice lands which the parties thought would afford an ample supply for irrigation purposes. Appellee installed a second pump and power unit to get more water from the brake and built a dam to impound the water. The brake dried up, resulting in an insufficient supply of water to produce a full rice crop and a substantial loss to both parties. As the learned chancellor pointed out in his findings, it seems to be admitted that the severe drouth caused the scarcity of water in the brake and there is no contention that the damages were caused by any failure on the part of appellee to furnish sufficient pumps, pipe, power units and fuel to lift the water from the brake for irrigation purposes.

In determining the issues in favor of appellee, the chancellor held that the rent contract was clear and unambiguous concerning appellee’s obligation relating to water, which was to provide pump, pipe, power and fuel sufficient to lift the water from the brake and make it available for irrigation purposes. In short, that the proviso in the contract relating to water meant exactly what it said, and did not mean that appellee guaranteed a sufficient supply of water to make a full rice crop, regardless of the source of such supply.

Appellant earnestly insists that the trial court erred in his interpretation of the contract. In making the contention that the contract obligated appellee to furnish a sufficient supply of water to make a full rice crop, appellant concedes that the contract is clear and unambiguous but he relies upon the case of Gibson v. Lee Wilson & Co., 211 Ark. 300, 200 S. W. 2d 497. The contract in that case required the lessor to furnish “a suitable irrigation plant” with “sufficient capacity to properly irrigate” the rice acreage, which he failed to do in time to save the rice crop according to the overwhelming evidence in the case. In affirming a judgment for the lessee, we referred to the lessor’s “positive agreement to furnish sufficient irrigation” as required by the contract. In the case at bar it is undisputed that appellee furnished adequate pumping equipment and fuel in a timely manner to lift all available water from the adjacent brake for use in irrigating the rice land and this was the extent of his obligation under the plain language of the contract.

It is elementary law that courts do not make contracts for the parties but only construe them; and where parties make a contract in clear and unambiguous language, it is the duty of the court to construe it according to the plain meaning of the language employed. St. L. S. W. Ry. Co. v. Cook-Bahlau Feed Co., 187 Ark. 106, 58 S. W. 2d 428. It is also well settled that contemporaneous oral evidence is inadmissible to vary the terms of an unambiguous written contract. Hoffman v. Late, 222 Ark. 395, 260 S. W. 2d 446. In Stoops v. Bank of Brinkley, 146 Ark. 127, 225 S. W. 593, the court said: “The first rule of interpretation is to give to the language employed by the parties to a contract the meaning they intended. It is the duty of the court to do this from the language used where it is plain and unambiguous. Where the language is clearly susceptible of hut one meaning, parol evidence to vary the terms of a written contract is not admissible. Where the meaning of the language of the contract is doubtful, or is susceptible of more than one meaning, parol evidence may be resorted to show the real nature of the agreement. The admission of such testimony is, within the meaning of the terms employed in the written contract, to render certain that which is uncertain and to determine just what in fact the writing was intended to express.” See also, Love v. Couch, 181 Ark. 994, 28 S. W. 2d 1067; Lee Wilson & Co. v. Fleming, 203 Ark. 417, 156 S. W. 2d 893.

As an alternative argument appellant contends that the rent contract is ambiguous and that parol evidence of prior negotiations, acts of the parties and custom and usage should have been considered by the chancellor as showing an intention of the parties to require appellee to furnish a sufficient supply of water to make a full rice crop after the brake dried up. Since we have concluded that the chancellor correctly held the contract clear and unambiguous, it is unnecessary to consider the interesting arguments by counsel for both parties on these extraneous matters.

The decree is affirmed.


author: George Rose Smith, J. Paul Ward, Associate Justice,

text:
    Eubanks v. McDonald.
    5-742
    283 S. W. 2d 166
    Opinion delivered October 31, 1955.

      John W. Murphy and Hubert L. Burch; for appellant.

      Daily <& Woods, for appellee.
   George Rose Smith, J.

This is a suit brought by the appellee to quiet her title to a small tract of land in Washington County. The case turns upon the construction of this language in the will of W. G. Taylor, who is the parties’ common source of title: “I will and bequeath to my beloved wife, Ida Taylor, all the rest and residue of my estate, both real and personal, to have and enjoy during her lifetime, and at her death I will and bequeath that all my property go to and become the absolute property of my adopted daughter, Dorothy Taylor, now Dorothy Wilson, of Fort Smith, Arkansas, and the children of her body born, to have and enjoy forever.”

At Taylor’s death in 1934 Dorothy Wilson, who later became Dorothy Eubanks, was the mother of three children. The testator’s widow, Ida Taylor, died some years after her husband’s death, and thereafter Mrs. Eubanks and her three children conveyed their interest in the property to the appellee. In 1949 there was born to Mrs. Eubanks a fourth child, the appellant in this case.

The trial court construed Taylor’s will as being in substance a devise to Ida Taylor for life with remainder to Dorothy Eubanks and her bodily heirs. Upon this premise the chancellor held that Mrs. Eubanks, who is still living, received only a life estate under Taylor’s will and that the appellant is a remainderman having an undivided future interest in the land. On direct appeal it is argued that Taylor’s devise was simply to Dorothy Eubanks and her children and that the appellant holds a present possessory interest as a tenant in common with the appellee. On cross-appeal the appellee contends that the appellant has no estate whatever in the property.

The first step is to determine the meaning of the devise to Dorothy Eubanks ‘ ‘ and the children of her body horn.” We agree with the chancellor’s view that this question is controlled by the decision in Dempsey v. Davis, 98 Ark. 570, 136 S. W. 975, where the conveyance was to the grantors’ daughter “and her children, the natural offspring of her body.” It was held that the quoted words are synonymous with ‘ ‘ bodily heirs. ’ ’ The phrases used in the two cases are so similar in fundamental meaning that to draw a somewhat artificial distinction between the two would only create needless uncertainty for the future.

Thus we have what amounts to a devise to Ida Taylor for life and at her death to Dorothy Eubanks and her bodily heirs. It is settled by five decisions of this court that the effect of this language was to vest the fee simple in Dorothy Eubanks upon the death of Ida Taylor. Bell v. Gentry, 141 Ark. 484, 218 S. W. 194; Pletner v. Southern Lbr. Co., 173 Ark. 277, 292 S. W. 370; Bowlin v. Vinsant, 186 Ark. 740, 55 S. W. 2d 927; Adams v. Eagle, 194 Ark. 171, 106 S. W. 2d 192; Cox v. Danehower, 211 Ark. 696, 202 S. W. 2d 200. By the doctrine of these cases the appellant has no interest in the land now in dispute, since his mother received the fee and later conveyed it to the appellee.

The chancellor recognized the force of the precedents cited; bnt, aware that the case was to be appealed in any event, he explained in detail his reasons for thinking that the earlier decisions should be overruled. Other learned writers have also questioned the technical soundness of the established rule: Sadler, The Construction of the Arkansas Fee-Tail Statute, 4 Ark. L. S. Bull. 29; Meriwether, A Survey of Recent Arkansas Real Property Cases, 3 Ark. L. Rev. 62, 66; Core, Transmissibility of Certain Contingent Future Interests, 5 Ark. L. Rev. 111, 122.

We shall not restate the various persuasive arguments for and against the rule adopted in Bell v. Gentry, for the doctrine of that case and those that have followed it has become a rule of property. To repudiate the rule by judicial decision would have the effect of invalidating titles that were acquired in reliance upon the rule in question. If a change in the law is really desirable it should be brought about by legislation, which operates with prospective effect only and does not upset titles already vested.

Affirmed on direct appeal, reversed on cross-appeal.

Mr. Justice Ward dissents.

Paul Ward, Associate Justice,

dissenting. I believe I can make my point of dissent more readily understood by using a series of illustrations and by substituting letters for names.

1. In the case under consideration we have a devise by T [denoting testator] to L [denoting taker of life estate] and then another devise to F [denoting here the step-daughter, or first taker] and the “heirs of her body.”

2. Notes: (a) The quoted words are not the ones used in the will under consideration, hut I agree with the majority that their meaning is the same, (b) I have divided the will into two distinct and separate devises as follows: first, from T to L for life; second, from T to F and the heirs of her body.

3. Thus we see that in the ‘‘ second” devise we have a perfect example for the application of Ark Stats. § 50-405. Applying this statute we then have the will conveying (a) a life estate to L, (b) a life estate to F [beginning at the death of L, as provided in the will], and; (c) a fee in the children of F.

4. It is perfectly legal and proper for T to convey a life estate to L and, at her death, a life estate to F. See Henderson v. Richardson, 213 Ark. 532, 211 S. W. 2d 436.

5. I must concede that [for all practical purposes] the language in the will under consideration is exactly like the language in Bowlin v. Vinsant, 186 Ark. 740, 55 S. W. 2d 927, one of the cases relied on by the majority. I also must concede that the Bowlin case is contrary to the results I reached in paragraph 3 above.

My dissent then amounts to a plea that the Boivlin ease be overruled [as of this date]. I believe there are good reasons for my view, as I shall now attempt to show.

6. The Bowlin decision was based on the decisions in Bell v. Gentry, 121 Ark. 484, 218 S. W. 194, and Pletner v. Southern Lumber Company, 173 Ark. 277, 292 S. W. 370, also relied on by the majority. But a careful reading of these two cases discloses a fundamental difference between them and the Bowlin case relative to the essential facts or language.

In the former two cases there was only one devise in the wills construed, and this was considered to be the pivotal point in the case.

It is hard for me to follow the logic employed in these cases, but I do see the basis upon which the result was obtained. This is the reasoning, in effect,' there used: Ark. Stats, could not apply because then there would be a life estate in L [created by the will], and a life estate in F [created by the statute], both existing at the same time — -an impossible situation.

It seems that in the Bowlin case the court just assumed that the same impossible situation existed. It is perfectly obvious, however, that no such impossible situation did exist in the Bowlin case and that it does not exist in the case under consideration, where the wills specifically provide that the second life estate [created by statute] shall not begin to run until the first life estate is extinguished.

Since I feel sure that this court would like to give effect to Ark. Stats. § 50-405 in applicable situations, and since the Bowlin case amounts to a revocation of that statute in certain applicable situations, it appears to me advisable to use this first opportunity to set the record straight, effective as of this date.

7. In addition to the two cases cited above the majority also rely on Adams v. Eagle, 194 Ark. 171, 106 S. W. 2d 192, and Cox v. Danehower, 211 Ark. 696, 202 S. W. 2d 200. I purposely refrained from discussing these two cases for the following reasons: In the Adams case apparently, though it is not clear, there was only one devise by the testator which puts it in the same classification with the Pletner case. If this be true then the Pletner case which was cited in the opinion was properly cited. In that event however the Bowlin case which was cited in the opinion was, I submit, improperly cited. In the Cox ease somewhat the same situation appears. Apparently there were two devises under the will although this does not appear as clearly as it does in the case under consideration. If we assume this to be true then the Pletner case which is cited in the opinion is improperly cited, but the Bowlm case which was cited in the opinion was properly cited causing the court to repeat the same error that has heretofore been pointed out in the Bowlin case and it should likewise be overruled as of this date.


author: Paul Ward, Associate Justice.

text:
    Miller v. Missouri Pacific Transportation Co.
    5-740
    283 S. W. 2d 158
    Opinion delivered October 31, 1955.

      O. I). Longstreth, Jr., Dave E. Witt and Joseph Brooks, for appellant.

      Pat Mehaffy and Herschel H. Friday, Jr., for appellee.
   Paul Ward, Associate Justice.

Appellant, J. T. Miller, instituted this suit to enforce the terms of an alleged contract under which, it is contended, appellee, the Missouri Pacific Transportation Company, was obligated to give him permanent employment. The prayer was for specific performance of the alleged contract and for damages for the breach thereof for a period of one year. Prom an adverse ruling appellant prosecutes this appeal.

The alleged contract relied on by appellant consists principally of a memorandum from District Lodge 158, of which appellant was a member, to appellee, of a letter from appellee to said Lodge and of certain oral testimony. It is appellant’s contention that the alleged contract was entered into for his benefit and that he has a right to sue thereon.

J. T. Miller at the age of approximately 55 years first entered appellee’s employment in Little Rock as a laborer. On August 8, 1946, while in said employment, he was injured and as a result was confined to the hospital for 11 weeks and 3 days. After discharge he stayed at home and went back to the doctor every day for some time and then went back to work on February 1, 1947, but he was unable to stand on his feet for long periods of time or to do the heavy work to which he had been accustomed. At about the same time he filed a claim for compensation and received $20 per week for the time he had been unemployed or a total of $502.88 and his hospital bill for $735.13 was paid. He has never at any time since filed any further claim for compensation under the Workmen’s Compensation Act. When he was discharged from the hospital he was told to return if his injured leg or arm “broke down.” After appellant served as a laborer for a short while he was promoted to the status of an apprentice, and by combining his hours as a laborer and an apprentice he accumulated sufficient hours, under existing rules, to be again promoted. Consequently on December 3,1949, he was made a mechanic, and he worked in this category at labor he was physically able to perform until November 29, 1951, when he was furloughed along with others because of a forced reduction in employment.

In September, 1949 [while appellant was still an apprentice] negotiations began between District Lodge 158 and appellee, as apparently was usual each year, relative to working relations between the two. These negotiations terminated in an agreement on October 15, 1949, in St. Louis. At this time there was present, representing appellee, R. J. McDermott, vice president; GL W. Marriott, general manager; J. N. Henase; and R. C. Cheat-ham, superintendent of automotive equipment. Representing District Lodge 158 was H. I. Hahn, general chairman; D. C. Brown, grand lodge representative for the International Association of Machinists; G. J. Ferguson, committeeman; and J. I. Sharp, local chairman from Kansas City — now deceased.

During the last minutes of the final negotiations on October 15, as referred to above, Mr. Cheatham brought up the matter of Mr. Miller’s status as an employee. It appears that at that time appellant was the only apprentice employee and that if he was immediately promoted to a mechanic he would he unable to hold his job because, at the time, there were unemployed mechanics in the Little Rock area who had more seniority than he had. It was then that Mr. Cheatham, who knew appellant and said he wanted to help him, suggested to the Union representatives that if they were willing for the company to promote appellant to a mechanic that appellee would try to work out some sort of a job that he could handle. Mr. Hahn stated: ‘‘Well, if the company is willing, it is a nice gesture on the company’s part, and if they want to try to help the man, as far as we are concerned, if the management and the local people at Little Rock can work out an arrangement whereby it will he satisfactory to them, of course, we will have no objection.” Mr. Cheat-ham stated that he would contact Mr. Woodyard, the shop superintendent at Little Rock, and see if appellee had enough work to make a job for appellant.

In accordance with the above arrangement representatives of Local Lodge 158 had a conference with Mr. Woodyard relative to appellant’s status as an employee. This meeting resulted in a memorandum prepared by representatives of the Local Lodge, which reads as follows:

“With reference to Mr. J. T. Miller being set up to journeyman mechanic and being placed on light work that he is able to handle, we wish to state that if the company is willing to keep this man on such light work that he is able to do. Due to the fact that this man is disabled to do heavy work, we will agree to protect this man’s job so far as onr seniority right will allow us.

“What we mean by this seniority right is that by using Rule XYI in our agreement no one would have the right to disturb this man, other than men that come under the same rule.

“This is subject to approval by H. I. Hahn and D. C. Brown.”

The above memorandum was mailed to Mr. Cheat-ham in St. Louis. Mr. Cheatham’s reply dated December 3, 1949, is as follows:

“In compliance with the attached as submitted by the local shop committee, Little'Rock garage, concerning apprentice mechanic, Mr. J. T. Miller, if the proposal is accepted, it is understood that Mr. Miller will not be disturbed by the exercising of seniority and bidding, we will place him on a mechanic’s hourly rate with the following duties, hours and days of rest:

‘‘ [Here is set in detail the hours and nature of employment.]

“Will you kindly advise with return of attached copies of this letter, affix your signature on each and retain one copy for your records.”

A copy of the above letter was returned to Mr. Cheatham indorsed as follows :

“ACCEPTED & AEREE:

“For MISSOURI PACIFIC TRANSPN. CO.

“By /s/ R. J. McDermott

“Vice President

“For DISTRICT LODGE No. 158

INTERNATIONAL ASSOCIATION OF MACHINISTS.

“By /s/ D. C. Brown

“Grand Lodge Representative

“By /s/ H. I. Hahn

“General Chairman.”

Appellant’s employment was terminated by a letter dated-November 23, 1951, from Mr. Cbeatbam to D. C. Brown and H. I. Habn, in their representative capacities, which reads as follows:

“With reference to the attached.

“I regret very much to advise that we find it necessary to abolish the position of Mr. J. T. Miller at Little Bock, Ark., which was set np on December 3, 1949, which by reason of a number of changes at that point can no longer be maintained. As yon no doubt are aware, our revenues have dropped to such a low level that the pressure is on me from all angles and it becomes necessary for me to take every step possible to effect reduction in our maintenance costs.”

In accordance with the above appellant was furloughed on November 29, 1951. It appears that a few weeks later appellant had the opportunity, in compliance with company rules, to retain his seniority rating but he chose not to do so. Although appellant has made an effort to obtain employment since he was furloughed he has not been able to do so to any considerable extent due apparently to his disabled condition.

After a careful review of the record and after careful consideration of all of the contentions and arguments set forth by appellant in his able brief, we are led to the conclusion that the decree of the trial court must be sustained. Conceding, for the purpose of this opinion, that appellant has a right, as a third party beneficiary, to maintain an action for relief under the alleged agreement, yet we are unable to find in the memorandum and letters set forth above or in the testimony relative thereto any promise or obligation on the part of appellee to provide lifetime employment for appellant. We gather from the record that appellant would have been without employment in December, 1949, if it had not been for the proposal made by Mr. Cheatham. It appears that his proposal was made and agreed to by the Local Lodge in an effort to avoid appellant’s immediate removal from employment. The arrangement resulted in a benefit to appellant in that he retained employment until the company was forced to furlough him the latter part of November, 1951. We are forced to conclude that appellee discharged all obligations it owed to appellant when it made special provisions for a job that he could handle and retained him therein as long as the job existed. The only thing said by any of appellee’s officers that tends in any way to show that appellant was to have a permanent job was a statement attributed to Mr. Woodyard, the Little Rock shop superintendent. Fred Francis, a witness for appellant, stated that he had a conversation with Mr. Woodyard in which Mr. Woodyard said that some of the boys who had been laid off thought they could “bump” appellant, but Woodyard told him, Mr. Ferguson and Mr. A. J. Pope that there was no way anybody could “bump” appellant as he had a lifetime job because of his injuries. This alleged statement, however, was made by Mr. Woodyard subsequent to the time that the agreement sued on was entered into. At most this amounted to Mr. Woodyarcl’s interpretation of the agreement and he, of course, had no authority to bind appellee. It must also be borne in mind that appellant at no time claimed that he was obligated to work any definite length of time for appellee.

The duration of a contract of employment has been heretofore considered by this court. In the case of Ashley, Drew & Northern Ry. Co. v. Cunningham, 129 Ark. 346, 196 S. W. 798, Cunningham gave the railway company a right of way deed in which it was provided that the latter would give him a job as brakeman at salary of not less than $50 per month. After a year and a half the road was sold to another corporation which a short time later discharged Cunningham. In holding that there was no breach of contract the court stated:

“The contract in the present case can only be construed to provide for hiring, not at the will of one of the parties, but at the will of both, and in this respect it differs from contracts which provide for service as long as the persons to be hired are willing to serve. It being for an indefinite period, it mnst be construed as being terminable at the will of either party.”

Our holding in the case of Moline Lumber Company v. Harrison, 128 Ark. 260, 194 S. W. 25, 11 A. L. R. 466, was to this effect: “. . . where the matter of duration of a contract of employment is not specified in so many words, a hiring being at a specified rate per year, month or week imports a hiring for the full period named, ’ ’ but that where no definite term of employment is specified the employment may be terminated at the will of either party in the absence of other circumstances controlling the duration of employment.

If the agreement here had specified that appellee would give employment to appellant as long as he desired to work, a question would be presented which we need not at this time decide, but the record does not show that such duration of employment was agreed upon.

It is earnestly insisted by appellant that this case should not be decided in accordance with the rules above announced for the reason that appellant had a valid claim which he could have asserted before the Workmen’s Compensation Commission but that he was led and induced by appellee not to file such a claim until after the time for filing had expired. We cannot, however, agree with appellant in this contention. In the first place, if appellant has allowed the time to elapse for filing a claim before the Workmen’s Compensation Commission he may have been willing to do so in order to retain employment with appellee for an indefinite period or as long as appellee was able to provide him with a job. In the second place, there is no testimony in the record to substantiate appellant’s contention that appellee in any way induced him not to file such a claim, and there is certainly nothing in the memorandum and letters from which such conduct on the part of appellee can be inferred.

Accordingly the decree of the trial court is sustained.

Affirmed.


author: Lee Seamster, Chief Justice. George Rose Smith, J.,

text:
    Hopson v. Buford.
    5-761
    283 S. W. 2d 337
    Opinion delivered November 7, 1955.

      R. D. Rouse, for appellant.

      McMillan & McMillan, for appellee.
   Lee Seamster, Chief Justice.

This is an appeal, by appellant, from that portion of the trial court’s decree that denied him the return of $2,500; the sum that he had deposited in the Clark County Bank to the savings accounts of his three minor step children. The appellees have cross-appealed from that portion of the decree that allowed the appellant recovery of $500 from Ivory Littrell.

Eva B. Hopson died intestate on March 18, 1953. She was survived by a husband, appellant herein, and three children, all appellees herein, are, James H. Buford, age 18; Ivory Jean Buford, age 16; and, Carrie Faye Buford, age 14. The maternal grandmother of the children,, Ivory Gatlin Littrell, has been appointed guardian of the two girls and appears as an appellee in the instant case. The older boys custody is vested with his father.

Subsequent to Eva’s death, the appellant, Bale Hop-son, received three (3) checks from an insurance company in the total sum of $4,000. This amount represented the face value of two life insurance policies that Eva had carried on her life. The appellant was designated the sole beneficiary under both of these life insurance policies.

On May 2, 1953, the appellant deposited $2,500 of the life insurance proceeds to the savings accounts of his three minor step children, which he established at the Clark County Bank. Two Thousand Dollars of this amount was deposited in the name of Ivory Gatlin Littrell, as guardian of Ivory Jean Buford and Carrie Faye Buford. Five Hundred Dollars was deposited in the name of Ivory Gatlin Littrell for James H. Buford. On the same date, the appellant delivered to Ivory Littrell an additional sum-of $500.

Thereafter, the appellant spent nearly every week end in the home of his mother-in-law, Ivory Gatlin Littrell. There was no discussion between the parties as to the money deposited to the minor childrens accounts, until July 9, 1954. At this time, the appellant told his mother-in-law that he had secured information to the effect that his step children had no interest in the insurance money he deposited to their savings accounts and requested the return of the money. When Ivory Littrell refused the return of the money, the appellant filed the instant suit in the Clark Chancery Court.

The chancellor found that the appellant was entitled to recover the $500 sum of money that he had delivered to Ivory Littrel; but, the appellant was not entitled to the return of the $2,500 sum of money that he had deposited to the accounts of his step children, since this amount was a voluntary gift to the step children.

On appeal to this court, the appellant contends that fraud, misrepresentation and undue influence were utilized by the appellees, especially Ivory Littrell, to induce him to deposit $2,500 to the savings accounts of his three minor step children. It is his contention that the morning after his wife’s funeral, Ivory Littrell brought up the subject of Eva’s property, including the life insurance proceeds. She told him that under the law he was entitled to only one-fourth of the proceeds from the insurance policies; with the remaining three-fourths to be divided equally among his three step children. The appellant earnestly contends that none of this money would have been deposited to the savings accounts of the three children, if it had not been for the false representations of Ivory Littrell. He further contends that his request for return of the money was met with a refusal by Ivory Littrell.

The appellees contend that appellant made a voluntary gift of $2,500 to his three step children, with full knowledge of all of the facts incidental to and surrounding said transaction. On cross-appeal, it is also the contention of the appellees that at this time, the appellant made a gift of $500 to Ivory Littrell, the maternal grandmother of the children. They submit that a preponderance of the evidence shows that the appellant gave the $500 to Ivory Littrell to be used by her for the maintenance and support of the two girls.

After a careful review of the record, we find the preponderance of the evidence supports the chancellor’s findings, that the appellant made a voluntary gift of $2,500 to his three minor step children; and, that the appellant did not make a voluntary gift of $500 to Ivory Littrell.

Fraud is never presumed and the burden of showing the existence of facts which establish fraud is upon the one who asserts fraud as a ground of relief. See, Bush v. Bourland, 206 Ark. 275, 174 S. W. 2d 936. The burden of proof was on the appellant to show that fraud, undue influence or misrepresentation, were utilized by the appellees to induce him to deposit $2,500 to his step children’s savings accounts. Under the facts here presented, we conclude that the appellant has failed to prove his allegations.

"We think that there was sufficient testimony adduced on the trial of this case, relative to the acts, conduct and declarations of Dale Hopson, to sustain the finding of the trial court that he made a voluntary gift of $2,500 to his step children. Mrs. Lillian Edwards, a teller in the Clark County Bank, testified to the following :

‘ ‘ Q. What did he (Dale Hopson) tell you he wanted to do with the checks?

“A. He wanted to leave $2,000 for the two Buford girls with Ivory Littrell, their grandmother, for to take care of for them, and $500 to the Buford hoy.

“Q. I see. Now did you undertake to question him about his desires?

Í£A. Yes, sir.

“Q. Why?

“A. Well, the two checks were made out to him and these were his step children, and I asked him was he sure he wanted to place it in their names.

“Q. What did he say?

“A. He said he did.

‘ ‘ Q. Then, did you undertake to explain the matter to him?

“A. Yes, sir. I told him he was a very generous step father. Then, when he got through with the transaction, I gave up and said, ‘You don’t want your name anywhere on this book?’ He said, ‘I don’t want anything to do with it. I want the grandmother to have it to see to their schooling or clothes or, if there is anything left, I Avant them to have it when they become of age.’

“Q. Hoav long did you take in explaining to him?

“A. I told him to begin with, and I told him at the end of the transaction again.

“Q. You told him what?

“A. That the checks Avere his; made out to Dale Hopson. I said, ‘Now these checks are yours and you don’t have to do that.’ He said, ‘Yes, but I AAmnt to.’ ”

We have held in the case of Williams v. Smith, 66 Ark. 299, 50 S. W. 513, that, “If the gift be intended in presentí, and be accompanied with such delivery as the nature of the property will admit, and the circumstances and situation of the parties render reasonably possible, it operates at once, and, as between the parties, becomes irrevocable.”

On cross-appeal, there is insufficient testimony to show that appellant intended to make a gift of $500 to Ivory Littrell.

No error appearing, the decree of the trial court is affirmed on appeal and cross-appeal.

Justices George Rose Smith and Ward dissent in part.

George Rose Smith, J.,

dissenting. I am unable to agree with the majority’s conclusion that “there is insufficient testimony to show that appellant intended to make a gift of $500 to Ivory Littrell.” On the record there is no sound reason for drawing any distinction among the various gifts.

All the transfers were made at the same time, in the Clark County Bank. In addition to depositing $2,500 in savings accounts for the children the appellant handed Ivory Littrell $300 and deposited $200 in a savings account in her name. The appellant kept the rest of the insurance money for himself; so the transactions in the bank resulted in a complete division of the funds.

The fact of delivery is unquestionably the strongest indication of a gift, since the requirement that a gift be delivered brings home to the donor the realization that he has parted with his property. Here the proof is undisputed that the appellant delivered $500 to his mother-in-law and that she retained the money for more than a year. The majority opinion leaves unanswered the obvious question: If the transfer to Ivory Littrell was not a gift, what was it? It was certainly not a loan or a payment under mistake, and the charge of fraud has rightly been rejected. In my opinion the only alternative is to uphold the validity of the gift.

Ward, J., joins in this dissent.


author: J. Seaborn Holt, J.

text:
    Griffith v. Griffith.
    5-762
    283 S. W. 2d 340
    Opinion delivered November 7, 1955.

      Wood $ Smith, for appellant.

      O. W. Pete Wiggins, for appellee.
   J. Seaborn Holt, J.

The parties here were divorced March 20, 1952 and under the decree appellant, E. H. Griffith, was ordered to pay appellee $150.00 per month alimony. He made these payments as ordered until March 20, 1953 but has paid nothing since June 30, 1954, when he paid $75.00 to appellee. The alimony payments had been reduced to this amount by a previous court order. Appellant married again March 3, 1953. In February 1955 appellant was cited to appear and show cause why he should not be held in contempt for failure to comply with the court’s order to pay $75.00 per month alimony. On a hearing April 19, 1955 appellant was adjudged to be in contempt. A jail sentence of ten days, and a fine of $50.00, were imposed. The court found him to be delinquent in his payments in the sum of $570.00 and entered judgment against appellant for this amount “for the collection of which immediate execution or garnishment may issue as upon a judgment at law.” In addition appellant was ordered to pay appellee ’s attorney $100.00, all costs, and $50.00 per month future alimony to appellee until further orders of the court. This appeal followed.

For reversal appellant says: “It is our position that while appellee was entitled to a judgment for arrearages it was not within the power of the court to imprison appellant for contempt because performance of the court’s order at the time of the hearing was a physical and financial impossibility. It is our further position that while appellee’s attorney rendered valuable services it was an abuse of discretion to impose an attorney’s fee against appellant because there is no evidence of financial ability to pay any amount. The same is true of the $50.00 award of alimony.”

Appellant was a conductor on the Missouri Pacific Bailroad. July 5, 1954, he became disabled and on the same day hospitalized because of a coronary occlusion. He has not been able to work since. He remained in the hospital for a period of forty days and has been back several times since. These returns to the hospital are recited in the following summary by Dr. S. C. Fulmer, heart specialist, who had him in charge.

“He was admitted July 5, 1954 and discharged August 14, 1954. The diagnosis was acute coronary occlusion. This attack had occurred on the morning of July 5, 1954 while walking from his train to his room about 4:30 a.m.

“He was admitted to the hospital on October 3, 1954 for a follow-up examination of his coronary occlusion and was discharged October 5, 1954.

“He was readmitted November 28, 1954 and discharged December 2, 1954. The diagnosis was old coronary occlusion with mild congestive heart failure.

“He was again admitted for further heart study on January 16, 1955 and discharged on January 18, 1955. Diagnosis: old coronary occlusion.

“He was admitted February 1, 1955 and discharged February 7,1955. Diagnosis: osteoarthritis of the spine, old coronary occlusion.

“He was admitted February 15, 1955 and was discharged February 17, 1955. During this examination his whole case was reviewed and it was my opinion that Mr. Griffith was totally disabled to do the work of a railroad conductor and I recommended that he be retired from service as of February 17, 1955. This opinion was concurred in by Dr. Peter 0. Thomas, District Surgeon for Little Rock Missouri Pacific Hospital.”

His pay from the railroad has stopped and he is now on the retired list, and he received sick benefits of $73.80 every two weeks for a period of six months until January 1955. He has 29 years service with the railroad and has applied for retirement pay (“or sick benefits”) to which he is entitled and should receive in due course. The amount of such benefits is not disclosed. Appellee at the time of trial and for sometime prior thereto was receiving $25.00 per week as a clerk in a New Orleans department store.

Appellant’s contention that the court erred in assessing a fine and jail sentence in the circumstances is correct. Imprisonment for contempt for failure to pay alimony may be imposed only in those cases where it appears that the defendant was able to pay but willfully and stubbornly refused to do so. We hold, on trial de novo here that the findings of the court, that appellant was able to pay during the six months’ period and that he willfully refused to do so, were against the preponderance of the evidence.

. On the record presented this is clearly not a criminal contempt proceedings but one of civil contempt, the object of which is not to punish appellant but to coerce him to pay the money due for alimony under the divorce decree. The prevailing rule appears to be as announced in Snook v. Snook, 110 Wash. 310, 188 P. 502, 9 A. L. R. 262, where it is said: “In a contempt proceeding . . . the object of which is to coerce the payment of money, the lack of ability to pay on the part of the defendant is always a complete defense against enforcing payment from the defendant by imprisonment. In harmony with the law on that subject in most of the jurisdictions of this country, this court has repeatedly so held.”

The above rule appears to be in accord with our own in Ex parte Caple, 81 Ark. 504, 99 S. W. 830, where we said:

“Our statute expressly provides that the court in actions for divorce ‘may allow the wife maintenance and a reasonable fee for her attorneys, and enforce the payment of the same by orders and executions and in proceedings as in cases for contempt.’ Kirby’s Digest, § 2679 (now § 34-1210, Ark. Stats. 1947). It further provides in another section that such orders may be enforced by sequestration and such other lawful ways and means as are in accordance to the rules and practice of the court. Kirby’s Digest, § 2682 (now § 34-1212, Ark. Stats. 1947). Imprisonment in such a case is only justified on the ground of willful disobedience to the orders of the court; and, so soon as it is made to appear that the defendant is unable to comply with the orders of the court, he should be discharged.” And, in Harmon v. Harmon, 152 Ark. 129, 237 S. W. 1096, we said: “Imprisonment of a divorced husband for a failure to pay alimony is justified only on the ground of willful disobedience to the orders of the court, and as soon as it is made to appear that he is unable to comply with such orders, he should be discharged. East v. East, 148 Ark. 143, 229 S. W. 5; Webb v. Webb, 140 Ala. 262, 37 So. 96, 103 Am. St. Repts., 30, and Messervy v. Messervy, 85 S. C. 189, 67 S. E. 130, 137 Am. St. Repts. 873, and case note at 883.

“It does not appear that the defendant made a fraudulent disposition of his property' after the award of alimony against him; or that he failed or refused to perform the decree from mere contumacy. It .appears that his neglect was the result of misfortune from want of means and ill health.' The court is empowered to punish the defendant by imprisonment for willful obstinacy where it shall appear that he had the means with which to comply with the decree, but it should not imprison him where he shows that he. has not the pecuniary ability to comply with the decree and is in such ill health that he cannot earn enough money to do so.” Reaffirmed in Hemby v. State, 188 Ark. 586, 67 S. W. 2d 182. As indicated, there was no showing here that appellant was able to pay and refused from mere contumacy.

The judgment against appellant for arrearages, attorney’s fee, costs, and future alimony payments of $50.00 per month will be allowed to stand, and as we said in the Harmon case above, 152 Ark. 129, 237 S. W. 1096, . . . ‘ ‘ under our practice the defendant may be again cited for contempt if it should be shown that his disobedience to the order of the court continues and is willful or the result of fraudulent conduct in the premises on his part.” So much of the decree adjudging the appellant guilty of contempt and assessing the $50.00 fine and a ten day jail.sentence is reversed and dismissed; in all other respects the decree is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Harris v. Simon.
    5-741
    283 S. W. 2d 349
    Opinion delivered November 7, 1955.

      Roger L. Murrel and Arthur G. Frankel, for appellant.

      Bailey, Warren $ Bullion, for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellant brought this suit to have his warranty deed to appellee declared to be a mortgage. The Chancery Court refused the prayed relief; and there is this appeal.

In 1949 appellant’s wife obtained a divorce, and appellant was required to pay her $800.00 plus court costs. He obtained the money from appellee (acting at all times by her husband, C. M. Simon, Jr.). The payment, by appellee’s check, was made in the office of the late Honorable Fred Isgrig, who had represented the wife, Bertie Harris, in the divorce proceedings. The Notary Public, who took the acknowledgment of the warranty deed to appellee from appellant and his divorced wife, testified:

“When they gave me a deed to have signed and have notarized I said, ‘Will, this isn’t a mortgage; this is a deed’; and Mr. Simon said, ‘That is all right,’; and Will said, ‘I have confidence in Mr. Simon’; and I thought it was strange at the time they would do that.”

At all events, the deed was signed and acknowledged on September 16, 1949 by both Will Harris and his divorced wife, Bertie Harris; and Mr. Simon delivered the checks at the same time. The appellant, by monthly payments — claimed by him to be repayments and by appellee to be rent — continued to live on the conveyed premises until 1950 or 1951 when he moved because — as he says — of the threats of Mr. Simon. Appellant then consulted an attorney, who died before instituting this suit; and thereafter appellant employed his present counsel and this suit was filed in August, 1954, in which appellant claimed that all he ever borrowed from appellee was $800.00 and that the entire transaction was a mortgage instead of a deed.

But appellee established, by cancelled checks, documentary evidence, and the testimony of entirely disinterested witnesses: that on September 6, 1949 appellant listed the property in dispute with a local real estate agent for sale at a price of $2,300.00; that the real estate agent went to Mr. Simon and showed him the property and Simon made an offer of $1,700.00 to purchase the property with an abstract to be furnished; that such offer was transmitted by the real estate agent to the appellant; and that the offer was accepted by the appellant in writing. The originals of the instruments were introduced in evidence, as well as the original settlement statement of the real estate agency, as follows:

“Sept. 16th, 1949

SETTLEMENT STATEMENT

For Will Harris and Birdie Harris

Account sale of 1704 So. Cedar (All Lots 16 and 17, except N 20 ft Lot 17 in Block 62 Braddock’s Addition) to M. W. Simon, Trustee

Agreed sale price Cash $1,700.00

Disbursements and Adjustments

Abstract fee $ 44.00

Revenue stamps on deed 2.20

Balance of Court Costs Circuit Court case Birdie Harris v. H. C. West 11.00

Balance due, Universal CIT Corpn (new roof) 251.90

Sales commission (agreed) 100.00.

Total $ 409.10

Cash received 1,700.00

Expended 409.10

Balance due Will Harris and Birdie Harris $1,290.90”

Appellee introduced the cancelled checks totalling $1,700.00, corroborating the settlement statement, and including the checks for $1,290.90 balance due Will and Bertie Harris. The real estate agent testified that, at the time of the conveyance, the property was worth about $2,000.00, so there was no great disparity between the value of the property and the $1,700.00. Appellee has made substantial improvements to the property.

As to the significance of the conversation before the Notary Public, as previously copied, the appellee’s evidence disclosed that, either at the time of the deed or some six months thereafter, appellee gave appellant some sort of option to repurchase the property; and that when appellant defaulted on the payments due on that contract, appellee caused appellant to vacate the premises. But appellant denied any such repurchase option and did not ask that any repurchase instrument be considered as constituting the entire transaction to be a mortgage. In the light of appellant’s denial of the repurchase agreement, we do not have before us a situation where a deed was made with an option to repurchase, as existed in such cases as Oliver v. Watts, 194 Ark. 644, 109 S. W. 2d 111; Avera v. Reynolds, 203 Ark. 1060, 160 S. W. 2d 48; Sturgis v. Hughes, 206 Ark. 946, 178 S. W. 2d 236; or Newport v. Chandler, 206 Ark. 974, 178 S. W. 2d 240, 155 A. L. R. 1096, where there is also an annotation.

In the light- of all the evidence, we cannot say that the Chancellor was in error in dismissing appellant’s complaint. The burden was on the appellant to prove, by evidence that was clear, unequivocal and convincing, that the deed was a mortgage. Snell v. White, 132 Ark. 349, 200 S. W. 1023; Henry v. Henry, 143 Ark. 607, 221 S. W. 481; Hudgens v. Taylor, 206 Ark. 507, 176 S. W. 2d 244; Newport v. Chandler, 206 Ark. 974, 178 S. W. 2d 240; and Landers v. Denton, 213 Ark. 86, 209 S. W. 2d 300. Appellant failed to discharge that burden.

Affirmed.

Justice Robinson not participating.

Justices Holt and Ward dissent.

       In some places the name is spelled “Birdie”; but when she signed the deed she signed it “Bertie Harris.”


text:
    Nail v. State.
    4822
    283 S. W. 2d 683
    Opinion delivered November 7, 1955.
    [Rehearing denied December 5, 1955.]

      Jeff Duty, for petitioner.

      Tom Gentry, Attorney General, and Thorp Thomas, Asst. Atty. General, for respondent.
   Minor W. Millwee, Associate Justice.

On January-26, 1955, appellant was convicted in the Municipal Court of Rogers, Arkansas, as a second offender, of driving an automobile while under the influence of intoxicating liquor in violation of Ark. Stats., Secs. 75-1027 and 75-1029, and his punishment was fixed at a fine of $250 and a jail sentence of 90 days. On appeal to the Benton Circuit Court, there was a jury trial on March 25, 1955 resulting in the same judgment as in municipal court. There was no appeal from this judgment.

On August 5, 1955, appellant filed in this court the instant petition to quash on certiorari the circuit court judgment on the ground that the information failed to charge a previous conviction thereby rendering said .judgment void.

The information, omitting its formal parts, alleges: “The said Ray Nail, in the said County of Benton, State of Arkansas, on or about the 8th day of October 1954, did wilfully and unlawfully operate a motor vehicle upon a public highway, while, he, the said Ray Nail, was under the influence of intoxicating liquor, this offense being the second offense of driving while under the influence of intoxicating liquor committed by the said Ray Nail within one year of the first offense of driving while under the influence of intoxicating liquor committed by the defendant. ’ ’

Ark. Stats., Sec. 75-1029, supra, is section 3 of Act 208 of 1953. After providing the punishment for a first conviction of driving an automobile while under the influence of intoxicating liquor, or drugs, as set forth in sections 1 and 2 of the act, the statute provides: ‘ ‘ On a second or subsequent conviction for an offense committed within one [1] year of the first offense of a violation of this Act, he shall be punished by imprisonment for not less than ten days (10), nor more than one year, and a fine of not less than two hundred and fifty dollars ($250.00) nor more than one thousand dollars ($1,000.00) and his privilege to operate a motor vehicle shall be revoked for one [1] year. ...”

Since such issues are not raised, we will assume, without deciding, that certiorari is available to appellant as a remedy, and that the contents of the information alleged to be defective are apparent from the face of the record. When so considered, we hold the information sufficient, in the absence of a motion for bill of particulars, to charge a prior conviction and to clearly apprise appellant that the state was claiming the particular offense charged to be his “second offense” within the meaning of the statute.

Appellant relies upon the general rule followed in Robbins v. State, 219 Ark. 376, 242 S. W. 2d. 640, to the effect that, in order to subject an accused to the enhanced punishment for a second or subsequent offense as a habitual criminal, it is necessary to allege in the information or indictment the fact of a prior conviction or convictions. In that case, we held an information insufficient to sustain the defendant’s conviction of a felony for a third offense of selling liquor where the information only alleged a misdemeanor and one offense under a statute that provided increased punishments for second and third “convictions.” It is appellant’s contention that the information here was fatally defective because the words “convicted” or “conviction” were not used in reference to the first, or prior, offense. It should be noted that the prosecuting attorney, in drafting the instant information, simply followed the language of the statute by charging appellant with a second offense committed within one year of the “first offense,” which latter term the Legislature clearly meant to be synonymous with first, or prior, 1 ‘ conviction. ’ ’

In the Robbins case, we said: “If the information in the case at bar had charged the prior convictions of appellant only in general terms, then it might have been sufficient under our liberal rules of procedure, at least in the absence of a motion for bill of particulars. But the information here embraces no charge of a prior conviction nor any other allegation calculated to put appellant on notice that he was charged with a felony. ’ ’ What was lacking there is clearly present in the instant case. Here a prior conviction was sufficiently alleged in the absence of a motion for bill of particulars.

While the fact of conviction should be sufficiently averred in an information or indictment seeking to charge accused as a second or subsequent offender, it is not essential to use the word “convicted” if its equivalent is otherwise sufficiently alleged. 42 C. J. S., Indictments and Informations, Sec. 145 b(b). The term “second offense,” as it is used in habitual criminal statutes, has been generally defined by the courts as, ‘ ‘ one committed after conviction for a first offense.” See, Black’s Law Dictionary (4th Ed.) p. 1233, and cases there cited. As the court said in Holst v. Owens, (C. C. A. Fla.) 24 Fed. 2d. 100: “It cannot be legally known that an offense has been committed until there has been a conviction. A second offense, as used in the criminal statutes, is one that has been committed after conviction for a first offense. ’ ’ See also, Carey v. State, 70 Ohio St. 121, 70 N. E. 955; State v. Gielen, 54 N. D. 768, 210 N. W. 971. _ While the holding in these cases is contrary to that of the Michigan court in People v. Buck, 109 Mich. 687, 67 N. W. 982, upon which appellant relies, we think it represents the more reasonable view and one that is in keeping with the liberal rules relating to the form, sufficiency and construction of words used in indictments and informations as set forth in Ark. Stats. Secs. 43-1007 to 43-1024.

The petition for writ of certiorari is denied.


author: G-eorge Rose Smith, Associate Justice.

text:
    Alexander v. Laman.
    5-760
    283 S. W. 2d 345
    Opinion delivered November 7, 1955.

      Kenneth G. G of felt and Tilghman E. Dixon, for appellant.

      Edwin E. Dunaway, for appellee.
   G-eorge Rose Smith, Associate Justice.

This is a suit hy the appellant for damages for malicious prosecution. The only question at issue is whether the trial court acted correctly in directing a verdict for the defendant.

The relevant facts, stated most favorably to the appellant, are these: In 1951 the appellant bought a cedar chest at the appellee’s furniture store and signed a purchase contract by which the appellee retained title to the property until it was paid for. In making the purchase the appellant informed the appellee that she intended to give the chest to her daughter as a graduation present. The gift was made immediately after delivery of the chattel. Some months later the daughter married and took the cedar chest to Arizona.

Upon the appellant’s becoming delinquent in her payments on the debt the appellee had her arrested on a charge of wrongful disposal of title-retained property. Ark. Stats. 1947, § 41-1928. At a trial in the North Little Rock municipal court the appellant was convicted and sentenced to a fine and imprisonment. Upon appeal to the circuit court, however, the charge was dismissed on a point of law — apparently bn account of the appellee’s knowledge that the chest was to be given away.

Upon this proof the court was right in instructing a verdict for the defendant. It was incumbent on; the plaintiff to show, as an essential element of her cause of action, that the defendant acted without probable cause in having her arrested. Price v. Morris, 122 Ark. 382, 183 S. W. 180. That element of the appellant’s case is necessarily lacking, for it is settled that a judgment of conviction by a court of competent jurisdiction is conclusive evidence of the existence of probable cause, even though the judgment is later reversed. Freeman v. Allen, 193 Ark. 432, 100 S. W. 2d 679. In the case at bar the appellant, in an effort to escape the legal effect of her conviction, sought to introduce a transcript of the testimony taken before the municipal court, for the purpose of showing that the evidence did not support that court’s finding of guilt. This offer of proof was properly rejected. Since the municipal court’s judgment, in the absence of fraud in its procurement, was conclusive evidence of the existence of probable cause, the appellant was not entitled to retry an issue already determined.

Affirmed.


text:
    Lawrence v. Lawrence.
    5-754
    283 S. W. 2d 697
    Opinion delivered November 7, 1955.

      Pat H. Mullis and Lloyd B. McCain, for appellant.

      J. F. Wallace, Jr., for appellee.
   Paul Ward, Associate Justice.

This appeal calls for an interpretation of a portion of the will of Josiah W. Lawrence. It was appellant’s contention below that said will created a trust relationship, that trial court decreed otherwise, and this appeal is prosecuted for a reversal. Josiah W. Lawrence, being the owner in fee of three lots in McG-ehee, Arkansas, of the value of approximately $10,000 [together with other real and personal property], executed his will on May 14, 1945 the material portions of which were as follows:

“3rd”

“I direct that my wife or my executrix, hold my estate intac and that she hold, Sell or dispose of my property at her will, and the same shall be use for the Benefit of her and my two children, Charles D. and Jay D. Lawrence, and all her actions is hereby ratified and confirmed, and she is hereby authorized and empower to sell, or dispose of my estate in the same manner as if done by me during my life time, and her own signature shall convey all rights and titles held my me at my death.

4th

I further direct at the death of my executrix, that my estate, both real and personal, of whatever so kind, and wheresoever found, shall pass to my two said children, and unto their airs to shear alike between the two, and to theirs shear alike.”

At the time of his death on November 28, 1946 Josiah W. Lawrence left surviving him his widow, Annie Lawrence, a son Charles D. Lawrence, and a son Jay D. Lawrence, single. Charles D. Lawrence died on January 25, 1950 leaving Ms- widow, appellant, but no children. On May 9, 1950' Annie Lawrence, for $1.00, other good and valuable considerations, and love and affection, executed a warranty deed to Jay D. Lawrence conveying the aforementioned three lots. Annie Lawrence died on April 15, 1952. The record contains a will, recorded in Book “D” at page 423 of Will Records in Desha County, executed by Charles D. Lawrence October 24, 1949 in which he gave all of his estate real and personal to his ■wife, the appellant.

This suit was instituted by appellant, the widow of Charles D. Lawrence, to cancel the aforementioned deed from Annie Lawrence to Jay D. Lawrence and to have the will of Josiah W. Lawrence so construed as to give her a one-half interest in the property mentioned, and for other relief.

The trial judge, in an exhaustive and able statement, concluded that the will of Josiah W. Lawrence created no trust relationship. We do not agree with the conclusion reached by the chancellor, but we do think he correctly stated the fundamental issue presented by this appeal when he stated: 1‘ The only question presented here is for a construction of this will with reference to the validity of the deed from Annie Lawrence to Jay D. Lawrence.”

The cardinal rule for the interpretation of a will, announced many times in our decisions, is very well stated in Jackson v. Robinson, 195 Ark. 431, 112 S. W. 2d 417. This rule is that the intent of the testator should be ascertained and effect given to that intent. In this connection it was also stated that the testator’s intent must be ascertained from the -language expressed in the will after a consideration of all the provisions of the instrument rather than from any particular form of words. Where the question arises as to whether the will creates a trust relationship it is said that a liberal construction should be applied to effectuate that relationship. In 56 Am. Jur. (Trusts)- page 36, § 18, it is stated: “Liberal construction, within bounds of purpose and natural and uncontaminated - import, in view of the existence and scope of the trust, is the rule” (citing cases). The same cited authority, § 17, says: “In construction of a trust instrument the expressed intent will not be varied under the guise of correction because the trustor misapprehended its legal effect. The trustor is presumed to know the law.” It is said in Restatement of the Law (Trusts) page 72, § 23, that: “No particular form of words or conduct is necessary for the manifestation of the intent to create a trust.” In the “illustrations” given at page 74, that the words “for the use of B” or “for the benefit of B” are sufficient to denote a trust.

Measured by the announced rules, a careful consideration of that portion of Josiah W. Lawrence’s will set forth above forces us to the conclusion that the will did not convey to Annie Lawrence a fee simple title to the described property, but that a trust relationship was created under which she held the property for the use and benefit of herself and the two sons.

To our minds the plain unambiguous wording of the will is susceptible to no other reasonable interpretation. Some of tire wording is: “and the same,” speaking of the testator’s estate, “shall be used for the benefit of her [Annie Lawrence] and my two children.” And in the 4th paragraph the testator directed that at her death his estate should “pass to my two said children > J

All the above language is repugnant to the testator’s intent to give his wife a fee simple title.

There is other language in the will which appellee relies on to show a different intent of the testator — -an intent to give his wife a fee. Some of such language relied on is: “and she (the wife) is hereby authorized and empower to sell or dispose of my estate,” etc., but this language, we think, is not all inconsistent with our stated view. In the first place the language might be said to be inconsistent with appellee’s view because, if in fact the wife was given a fee, the language was unnecessary, as stated in Owen v. Dumas, 200 Ark. 601, 140 S. W. 2d 101. If the wife received a fee she, of course, had full power to sell anyway. In the second place the language in the will giving the wife the power to sell, is the language necessary and usual where a trust is created with power in the trustee to sell for the benefit of others. In the third place the will states, in the first three lines of paragraph “3rd,” that “she hold, sell or dispose” of the property “and the same shall be used for the benefit” of her and her two sons.

Consequently we conclude that Annie Lawrence could only dispose of the property for the purpose expressed in the will, and, further, that the deed she made to her son Jay D. Lawrence on May 9, 1950 was not for such a purpose. In fact it is not contended said deed was made for any such purpose — no testimony being introduced. In the Owen case, supra, it was said: “In the case at bar, the power to dispose of the property is expressly limited to certain purposes, and the widow could not dispose of the property for any other purpose than those mentioned in the will.”

Having construed the will to impose a trust upon the widow, it follows that she only had (not more than) a life estate in the property in litigation, and that the fee in the property went to the two children. The facts and issues in this case are similar to those considered in Patty v. Goolsby, 51 Ark. 61, 9 S. W. 846, where we said: “As to the construction of the will we see no difficulty whatever. The testator has given, and no doubt intended to give to his wife Elizabeth, a life estate in both, his personal and real property or his whole estate. It is equally clear that he gave and intended to give the remainder in fee to his children. ’ ’ In speaking of the interest which the children received the court said: “It was therefore not a contingent but vested remainder-vested at the same time the life estate vested.”

It follows that Charles D. Lawrence during his lifetime had a vested interest in the property in litigation, which was such an interest as he could convey by will to his wife.

Since no testimony was taken before the trial court it appears likely that there will be further litigation relative to certain issues raised in the pleadings, therefore the cause is reversed and remanded for further proceedings not inconsistent with this opinion.

Justice McFaddin dissents.