author: John A. Fogleman, Justice. George Howard, Jr., Justice,

text:
    TRI-STATE BONDING CO. v. STATE of Arkansas
    77-356
    567 S.W. 2d 937
    Opinion delivered June 12, 1978
    (Division I)

      Douglas W. Parker, for appellant.

      Bill Clinton, Atty. Gen., by. Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

This appeal was taken from a judgment entered against appellant as surety on the bail bonds of several defendants in criminal cases pending in the circuit court. Bond forfeitures were entered on bail bonds in these cases on the following dates:

Case No. Amt. of Bond Date of Bond Date of Forfeiture
CR-75-316 Osborne 12,500.00 Nov. 7, 1975 Oct. 26, 1976
CR-76-34] CR-76-62-! Woodall 2,500.00 Feb. 12, 1976 Jan. 25, 1977
CR-76-82 Biggers 1,000.00 Dec. 8, 1976 Jan. 25, 1977
CR-76-148 Hershel 5,000.00 May 27, 1976 Feb. 7, 1977
CR-76-159 Burton 1,000.00 June 11, 1976 Feb. 28, 1977
CR-76-163 Landers 500.00 June 19, 1976 Feb. 28, 1977
CR-76-13 i CR-76-378J Strickland 5,000.00 Dec. 24, 1976 [Mar. 30, 1977 L April 25, 1977

Summons was issued in each case directing that appellant show cause why judgment should not be entered against it for ■ the amount of the bond. Judgment was entered against appellant in the total sum of $15,050. It was composed of judgments on the forfeitures of the above bonds in the amounts shown:

James Edwin Osborne $1,700.00
Mike Woodall 2,350.00
Eddie Biggers 750.00
Charles Ray Hershel 4,000.00
Larry G. Burton 750.00
Floyd Landers 500.00
Preston Ray Strickland 5,000.00

Criminal dockets were exhibited in each case showing that the respective defendants had failed to appear on the date the forfeiture was declared. A hearing on the order to show cause was held on May 31, 1977.

Appellants asserts two points for reversal, which we will treat in the order stated.

I

THE TRIAL COURT ERRED IN REFUSING TO CONTINUE THIS CASE TO ALLOW APPELLANT TO PREPARE HIS CASE FOR PRESENTATION TO THE COURT.

During the course of the hearing, appellant’s attorney requested that the court require the state to produce records it was holding in order that appellant might ascertain whether the state was withholding information. A deputy prosecuting attorney testified that all appellant’s records on every bond he made had been taken under a search warrant and that they had not been returned. This deputy had offered to have a representative of the Ft. Smith Police Department take Lee Williams, the owner of appellant, to the records to permit him to remove anything wanted for the hearing. The prosecuting attorney stated that, during a recess of the court, he wanted to make available to Mr. Williams any and all records held. Appellant’s attorney’s request for a continuance was denied. The prosecuting attorney asked that the record reflect that Williams had never made a request for the records pertaining to the cases which were the subject of the hearing, even though he had requested records pertaining to active cases. Appellant’s attorney asked that the record reflect that he had requested that the prosecuting attorney return the records but the prosecuting attorney refused, saying that he would return no records without a court order. The prosecuting attorney denied that this was so.

The exact period of time allowed Williams to review his own records before the hearing was resumed is not shown. He obviously referred to some of them in his later testimony. During the recess, the court conducted its call of the municipal court appeal docket. After this recess, appellant did not register further objection or indicate any prejudice. It appears that all his records were surrendered to him. A second recess was declared in order to permit Williams to retrieve additional records from his own office. He admitted that his failure to produce certain records, or information they would disclose, particularly in regard to his expenses in efforts to locate and apprehend defaulting defendants, was not attributable to the prosecuting attorney’s possession of some of his records. The records as to his expenses apparently were never out of Williams’ possession, except for checkbooks which did not affect his ability to show what his expenses had been. Williams’ only excuse for his inability to show his expenditures was that “he didn’t have time to go up in the attic and dig out those expenses.” The appellant did, rather late in the hearing, ask for a continuance of two weeks for “documentation of expenses.” Summonses on these forfeitures had been served on appellant as long as seven months prior to the hearing. Only one of them had been served less than two months prior to hearing. There is no basis whatever for holding that the circuit judge abused his discretion in denying the motion for continuance.

II

THE TRIAL COURT ABUSED ITS DISCRETION IN ENTERING JUDGMENT UPON THE BOND FORFEITURES IN AN EXCESSIVE AMOUNT.

Appellant admits that the judgment on the Landers bond is proper, but contends that the judgments in the other cases are excessive. He points out that we have said that the giving of bail bonds is to be encouraged in order to give freedom to the accused pending trial and to relieve the state of the cost of maintaining him until his case can be heard and that the purpose is to secure the administration of justice, not enrich the treasury. See Central Casualty Co. v. State, 233 Ark. 602, 346 S.W. 2d 193.

Appellant then complains that there is no evidence to show that the state spent any money in the apprehension of those defendants who appeared and were sentenced subsequent to the forfeiture of their bonds. Of course, the burden of proof in the matter was on appellant. Hickey v. State, 150 Ark. 304, 234 S.W. 168. It would be quite difficult to allocate the cost of utilization of the regular personnel and facilities of the judicial system and law enforcement agencies for the processes necessary when a defendant on bail fails to appear. It is also impossible to make an accurate estimate of the expense of the disruption of a court’s docket attendant upon non-appearance of a defendant at a scheduled time and the resulting waste of judicial and juror resources. While the fact that no extraordinary expenditures are made by the state is a matter for consideration, it certainly is not the measure of the recovery against the bail, who has responsibility for the appearance of his principal.

In considering the forfeiture of bail, the underlying basis of admission to bail must be considered. The defendant, rather than being held in the custody of the state, is released to the custody of the surety, who is responsible for the defendant’s appearance at the time fixed. 8 Am. Jur. 2d 782, 783, 784, 837, Bail and Recognizance, §§1, 3, 4, 94; 8 CJS 54, Bail, § 29. See also, Adler v. State, 35 Ark. 517, 37 Am. Rep. 48. The defendant is regarded as being in the custody of his bail from the time of the execution of the bail bond until he is discharged, and his bail is considered as a jailer of his own choosing. 8 CJS 59, Bail, § 31. Although the surety is not expected to keep the principal in physical restraint, he is expected to keep him within the state. Adler v. State, supra; 8 Am. Jur. 2d 837, Bail, § 94.

Matters in defense on forfeiture of the bond must be set up by answer. Miller v. State, 35 Ark. 276. Technical defenses have been dispensed with and the courts consider only those defenses that affect the substantial rights of the parties. Havis v. State, 62 Ark. 500, 37 S.W. 957. Where there is no act of God, the state, or of a public enemy, or actual duress to prevent appearance by an accused on bail at the time fixed by the terms of the bond, the security is not released from forfeiture. Sugarman v. State, 28 Ark. 142; Adler v. State, supra.

The failure of each of the defendants to appear at the time fixed was sufficient basis for forfeiture of the bond, when noted on the record. Craig v. State, 257 Ark. 112, 514 S.W. 2d 383. The proceeding after forfeiture and before judgment is a summary one. Hickey v. State, supra. The orders to show cause merely afforded the bondsman an opportunity to be heard with respect to remission of all or some part of the forfeiture. See Craig v. State, supra.

The trial court’s authority to remit a forfeiture when the accused is subsequently surrendered by the surety is discretionary. Ark. Stat. Ann. § 43-729 (Repl. 1977). The question here is whether the trial court abused its discretion in fixing the amount of the judgments. Hickey v. State, supra. This discretion is not arbitrary, and it is to be fairly exercised on the facts in the particular case. Central Casualty Co. v. State, 233 Ark. 602, 346 S.W. 2d 193. The mere fact that the bail took the principal into custody after forfeiture and surrendered him to the authorities, even during the same term of court at which the forfeiture was declared or the defendant’s appearance had been required, does not entitle the bail, as a matter of right, to a remission of the penalty, even though the return of the principal was at the expense of the bail. Hickey v. State, supra. It devolved upon the appellant to establish facts to justify favorable action in the exercise of the trial court’s discretion. The failure to even allow the bail his expenses in the matter is not necessarily an abuse of the trial court’s discretion. Hickey v. State, supra. And when the principal does not appear, there is no exoneration from liability under the bond, regardless of the extent of the search by the surety, if the surety shows no more than the disappearance of the principal. Bryan v. State, 113 Ark. 598, 167 S.W. 484.

In the case of Mike Woodall, appellant was allowed credit for only SI50. Woodall was returned by appellant from a small town near Jonesboro. Woodall was surrendered on March 9, 1977. His case had been set for November 30, 1976. Williams had mailed Woodall a letter on November 5, 1976, notifying him that he should be in court on that date. Appellant began to look for Woodall, when the public defender’s office stated that there had been no response to a letter from it to Woodall. The search for Woodall included inquiries in West Virginia and Tennessee, as well as various places in Arkansas. Williams testified that his expenses were $300 to $400. The trial court allowed credit for $400, but for some reason deducted the bond fee of $250 from that allowance. It seems to us that this action would tend to discourage rather than encourage the making of bail. There is little incentive for the surety to make the effort and expenditure necessary to return a fugitive if he is to be penalized to the extent that he does not even salvage his expenses when his efforts are successful. We think that a judgment for more than $1,800 on this bond is excessive. The judgment in that case is reduced to that amount.

Eddie Biggers was to have been in court on December 17, 1976. According to Williams, Biggers appeared in his attorney’s office “half-drunk” on that date and was sent home by the attorney, who later advised the court that Biggers was “running. ” Williams testified that he spent several hundreds of dollars paying rewards to informants for information about Biggers’ whereabouts. An agent for appellant testified that the rewards paid totalled $500. He said that he worked for a week and a half to two weeks seeking to rearrest Biggers and that three others worked over a week each. He finally located Biggers in a Ft. Smith bar and called the police and sheriff’s office to aid in the apprehension that resulted in the surrender of Biggers. This agent testified that his salary for two weeks devoted to the search for Biggers amounted to $500. He stated that four deputy sheriffs and five city policemen assisted in the arrest. Williams testified that employees of the sheriff’s office and several police officers worked diligently in trying to assist in the apprehension of Biggers. Williams s^id that he spent a total of six or eight hours looking for Biggers himself. It seems, however, that Biggers had also failed to appear in another case in which appellant made his bond ih the sum of $2,500, so we cannot say that there was any abuse of discretion in allowing only $250 credit on this forfeiture.

Charles Ray Hershel was scheduled to appear on February 7, 1977. He actually appeared on May 4, 1977, and was admitted to bail in the sum of $2,500 rather than the $5,-000 bond previously made by appellant. According to Williams, Hershel’s appearance was a result of Williams’ advising the employee of the sheriff’s office that Hershel was in the army. Williams testified that he paid the expense of a plane and pilot to take a deputy sheriff to Georgia to take Hershel into custody and to return him to Ft. Smith. He estimated his total expense to be close to $570. The last notice that appellant gave Hershel of his obligation to appear on February 7 was sent on November 5, 1976. Under the circumstances, including the fact that Hershel was admitted to a lesser bail after having failed to appear on the bond made by appellant, we feel that the $4,000 judgment should be reduced to $2,500.

It has been suggested in a dissent that any judgment on this forfeiture is barred by Title 50 U.S.C. App. 513 (3). This is the first time that this section of the Soldiers’ & Sailors’ Civil Relief Act has been mentioned in this proceeding. Since appellant did not raise the question in the trial court, it is not in issue. Since appellant did not argue that the act applied on appeal, he has waived that ground for relief. The state has never had an opportunity to respond to any contention that appellant was entitled to relief under this act. But even if the question were properly before us, appellant could not prevail on this record.

There is no question about the mandatory effect of the act upon showing of the requisite facts. United States v. Jeffries, 140 F. 2d 745 (7 Cir., 1944). On the other hand, the surety is not entitled to relief in the absence of a showing that the principal was in the military service on the date he was scheduled to appear, that the surety made an unsuccessful effort to secure Hershel’s appearance on that date and that Hershel’s military service prevented his attendance on that date. See State v. Benedict, 234 Iowa 1178, 15 N.W. 2d 248 (1944); Briggs v. Commonwealth, 185 Ky. 340, 214 S.W. 975, 8 ALR 363 (1919). U.S. v. Carolina Casualty Ins. Co., 237 F. 2d 451 (7 Cir., 1956); Cumbie v. State, 367 S.W. 2d 693 (Tex. Cr. App., 1963); People v. Continental Casualty Co., 284 App. Div. 944, 134 N.Y.S. 2d 742 (1954). See also, People v. Walling, 195 Cal. App. 2d 640, 16 Cal. Rptr. 70 (1961); Ex parte Moore, 244 Ala. 28, 12 So. 2d 77 (1943). The burden was on appellant to make this showing. The record, as abstracted, is far from conclusive on this point, to say the least.

The bond was made on May 27, 1976. Appellant mailed letters to Hershel beginning as early as June 14, and as late as February 2, 1977. Williams testified that notice of the appearance date of February 7, 1977, was given in a letter sent Hershal on November 5, 1976. Appellant testified that Hershel simply did not appear, that he “jumped bond” and that appellant expended $570 or better to see that he was brought back. Although Williams later testified that he knew that Hershel was in the army when the bond was forfeited, the record as abstracted shows nothing to indicate that the surety was prevented from enforcing Hershel’s attendance on that date, or of any effort appellant made to have Hershel in court on the date scheduled until after the forfeiture or that he made any effort to return him, except for notifying Mrs. Stancil that Hershel was in the army in Georgia and that he sent a plane to Augusta, Georgia, to take a deputy sheriff, who returned Hershel to Ft. Smith. What is more important, there is no showing that Hershel’s entry into the military service was not by voluntary enlistment. That showing was essential to relief of the surety. Cumbie v. State, supra. It was never intended that the army be a haven for criminals.

Larry Burton was scheduled to appear on February 28, 1977. Williams testified that he spent $280 in attempting to locate Burton. There is some testimony about Burton having been in jail on another charge at some time between the forfeiture and the hearing. This did not relieve the surety. See Havis v. State, 62 Ark. 500, 37 S.W. 957. We find no abuse of discretion in rendering judgment for $750 on this bond.

Preston Ray Strickland was released on bail on $5,000 on two separate charges. He failed to appear on either of them. A bench warrant was issued for him on April 15, 1977. According to Williams, Strickland was in the city jail on a drunkenness charge after that date, but was released before Williams could surrender him. He stated that he had expended $150 trying to apprehend Strickland without success. Williams felt that Strickland was still in Ft. Smith at the time of the hearing and said that the Strickland family has a tendency to try to hide one another. We find no abuse of discretion in the judgment for the full amount of this bond.

In the case of James Edward Osborne, it was stipulated that the defendant did not appear and became a fugitive from justice at the time of the forfeiture. Immediately after the bond was made, Osborne entered the Veteran’s Administration Hospital at Fort Roots. His attorney testified that before Osborne was released on bail, Osborne’s relatives said they wanted to arrange for his release from jail, so they could put him in this hospital. A deputy sheriff advised the hospital that a warrant for Osborne was outstanding. Osborne left the hospital at some time not definitely fixed. When the trial date was set, Osborne’s attorney was told by one of Osborne’s sisters that she did not know where her brother was. Williams testified that he had made a trip to Hayward, California in search of Osborne. The cost of this trip was estimated at $800. An unlawful flight warrant was issued at the request of the prosecuting attorney on November 3, 1976 and the Federal Bureau of Investigation undertook to locate Osborne. Williams said that he gave the FBI the address of a relative of Osborne living in Hayward. The Bureau reported on December 22, 1976, that Osborne was dead. Williams presented a newspaper clipping from a Ft. Smith newspaper dated December 22, 1976, announcing the death and funeral of Osborne. Williams testified he had made three trips to Booneville, two to Magazine and one trip to Keota, Oklahoma, in search of Osborne or information about him. He located Osborne’s automobile in Keota. He stated that his telephone expense in this case was $35 and estimated his total expense at $875.

Williams admitted that he received notice of criminal trial settings for October 26, 1976, listing Osborne’s name. This list had been mailed September- 24, 1976. Williams testified that letters written to Osborne at the address he had given, advising him of this trial date were not returned. Williams testified that, under the procedure established in appellant’s office, the secretary sent a letter notifying each defendant for whom they had made a bond of any court appearance date shown on the list furnished to him. He could not explain why his office records did not disclose that a letter was written to Osborne on this occasion, as the secretary made a notation showing the date of the letter. There were no entries on the record card for Osborne between May 18 and October, 1976.

The employee of the Sebastian County sheriff’s office in charge of records testified that a bench warrant was issued for Osborne on October 29, 1976 and entered into the National Crime Information Center on November 1, 1976. The sheriff’s office was not notified of Osborne’s death until sometime in January. A warrant was issued for Osborne on November 12, 1976 and placed in the hands of Detective Charles Hill of the Ft. Smith Police Department on the next day. At some time, not established, Hill had notified the Fort Roots Hospital that he held a warrant for Osborne. He received information that Osborne was in this hospital from a representative of appellant.

It has been suggested in a dissenting opinion, without supporting authority, that it is the better rule that when a person is suffering from a mental disease and is confined to a mental hospital, the surety is discharged under the theory that an act of God has intervened. It has been said that insanity of the principal is a defense for nonperformance by the surety. See Hood v. State, 231 Ark. 772, 332 S.W. 2d 488. The record is devoid of evidence of Osborne’s insanity. In Hood, we held that the defense that the surety was relieved by reason of the principal’s confinement in the Arkansas State Hospital raised a jury question whether the nature of the confinement was such as to relieve the bondsman from the bond forfeiture. In doing so, we relied, in part, upon Briggs v. Commonwealth, 185 Ky. 340, 214 S.W. 975, 8 ALR 363 (1919), wherein it was held that “where the principal is actually confined in an insane asylum, being thus in the custody of the stale, and beyond the powers of the surety to produce him, the latter is discharged.” [Emphasis ours.] There is no evidence that Osborne was committed to, or confined at, Fort Roots, or that he was in custody. Certainly, Williams’ testimony that he was sure Osborne was committed because he was a mental case was not sufficient. Osborne’s lawyer said that he and some relatives of Osborne suspected that he was mentally ill and that the brothers and sisters of Osborne brought him an affidavit requesting that Osborne be committed. He did not say that Osborne was committed. He did say that he did not advise the bonding company that he was making a maneuver to permit Osborne to enter the VA Hospital. As far as this record discloses, Osborne’s admission to the hospital was voluntary.

After remand in Hood, supra, judgment was rendered on a jury verdict against the surety and it was affirmed here. Hood v. State, 234 Ark. 901, 356 S.W. 2d 28. We held that there was no abuse of the trial court’s discretion in its refusal to set aside the forfeiture, since the principal’s admission to the Arkansas State Hospital was voluntary and, as was the case here, the trial court had good reason to believe that the principal entered the hospital for the purpose of avoiding a trial. We approved as correct an instruction to the jury that if the principal was confined to the Arkansas State Hospital on the date set for his appearance in court because of his insanity, and was unable to attend court for that reason, it would find for the surety; but, on the other hand, if the principal was admitted as a voluntary patient for treatment of alcoholism and could have been released if he had requested it or if the hospital authorities had-been informed that criminal charges were pending, it would find for the state. We said that the issue was whether the principal was unable to attend on account of insanity. On evidence at least as strong as that here, we said that the surety had not met his burden of establishing, to the satisfaction of the jury, that the principal did not appear in court because of his insanity.

We are certainly unable to say that appellant here meets its burden of proof sufficiently for us to require the reversal of the trial court’s judgment in this case. The voluntary hospitalization of Osborne did not relieve appellant of its responsibility. Hood v. State, 234 Ark. 901, 356 S.W. 2d 28. There is no evidence to indicate that Osborne died before the scheduled appearance date, so appellant was not relieved of his responsibility on that account. Since appellant’s expenses were only estimated, we are unable to say that the judgment for $1,700 in this case was an abuse of discretion.

The judgment is modified by reducing it as indicated so that the total judgment is in the amount of $13,000. As modified, the judgment is affirmed.

We agree.

Harris, C.J., and Gof.rge Rose Smith and Holt, JJ.

Byrd, Hickman and Howard, JJ., dissent in part.

George Howard, Jr., Justice,

dissenting. 1 am compelled to dissent from the majority’s opinion affirming the trial court in granting judgments on the bond forfeitures involving James Edwin Osborne in the amount of $1,700.00 and in the case of Charles Ray Hershel in the amount of $4,000.00, but reduced by the majority to $2,500.00. It is my belief that the evidence and the law justify a complete exoneration of the bondsman for the failure of these two defendants to appear in court for trial. Consequently, there was an abuse of discretion on the part of the trial court in rendering any type of judgment in behalf of the state involving these two defendants.

First, relative to James Edwin Osborne, the record reflects that before his scheduled appearance in the Circuit Court of Sebastian County, Mr. Osborne was admitted to the Veterans Administration Mental Hospital (Fort Roots) in North Little Rock, Arkansas. The record also indicates that he had been confined to this hospital at least twice previously because of a mental condition. Sometime subsequent to his admission to the hospital, Mr. Osborne departed the State of Arkansas for the State of California. The evidence reflects that he was killed in Oakland, California, on December 22, 1976, approximately fifty-seven days after his scheduled appearance in the Circuit Court.

It is clear from the record that the bondsman was unaware of Mr. Osborne’s confinement to Fort Roots and indeed, was unaware of his departure from the hospital. However, it seems clear, from the record, that Mr. Osborne’s attorney knew that upon making bail, Mr. Osborne would voluntarily and immediately enter Fort Roots, but his attorney, an officer of the court, did not alert the court or inform the bondsman.

Mr. Osborne’s attorney testified as follows:

“A. ... we suspected that he (Osborne) was mentally ill . . .
“Q. . . . did you ever communicate to his bondsman that you were going to have him placed in the hospital?
“A. I’m not sure Doug. This was back in 1975 ...”
See: Abstract in appellant’s brief, pages 31 through 34.

It appears that the better rule is that where a person is suffering from a mental disease and is confined to a mental hospital, the bondsman is discharged under the theory that an act of God has intervened preventing performance. Moreover, if, during confinement to the hospital, the patient-defendant escapes, the surety cannot be held accountable for failure to produce him. Hood v. State, 231 Ark. 772, 332 S.W. 2d 488. See: 8 C.J.S. Bail § 77 at page 221 where it is provided as follows:

“It has been held that where a lunatic is confined in a state hospital or asylum the bail are discharged because of an act of God preventing performance.”

See also: Adler v. State, 35 Ark. 517, where we made the following observation.

“. . . [T]he inability of the principal to perform the condition of the bond, produced by sickness to the degree which in law is deemed an impossibility proceeding from the act of God, will discharge the bail.”

In Hood, we recognize the great weight of authority is that a bondsman will be exonerated from liability on bail where the principal is confined because of insanity.

in the instant case, Mr. Osborne, during his confinement at Fort Roots, was in custody of an institution that is under the control and supervision of the Federal Government and it was beyond the power of the bondsman to produce him for trial and, consequently, the bondsman should be discharged. Moreover, the state has not shown that it was required to expend any funds whatsoever in connection with the non-appearance of Mr. Osborne.

Relative to Charles Ray Hershel, the evidence clearly shows that on the date that he was to appear for trial, he was a member of the United States Armed Forces, serving in the State of Georgia. This was called to the attention of the trial court during the hearing which resulted in a judgment against the bondsman in the amount of $4,000.00, but reduced by the majority to $2,500.00.

The bondsman testified as follows:

“A. ... In this particular case he joined the Army and'in joining the Army he went to Augusta, Georgia, I think it was. While he was in Georgia we found out where he was — the Sheriff’s Office did not know — and we notified Mrs. Stancil that he was in the Army in Georgia, and Mrs. Stancil, in turn, contacted the proper authorities there and they put him under house arrest and his Company commander, it is my understanding at this time, is in trouble over this thing because he bumped him from the Army without permission.”

The bondsman, Mr. Williams, further testified as follows:

“A. ... I know he was in the Army when the bond was forfeited. We pursued the man and we got information that he was in the Army and we located his base station, and Mrs. Stancil was given the information and she, in turn, called down there and told them her warrant numbers and followed through by mailing them the warrants, and he was put under house arrest. His Company commander, I think his name was Smith bumped him from the Service.”
See: Abstract in appellant’s brief at pages 59 and 60.

Under Title 50, U.S. Code Ann., § 513(3), it is provided as follows:

“(3) Whenever, by reason of the military service of a principal upon a criminal bail bond the sureties upon such bond are prevented from enforcing the attendance of their principal and performing their obligation the court shall not enforce the provisions of such bond during the military service of the principal thereon and may in accordance with principals of equity and justice either during or after such service discharge such sureties and exonerate the bail.” (Emphasis added)

Under the above quoted provision, the trial court was duty bound not only from proceeding in any manner with the case pending against Mr. Hershel, including forfeiture proceedings against the bondsman, but was required to either, during Mr. Hershal’s tenure with the United States Army or after his discharge, to completely discharge the sureties and exonerate the bail.

In White System of Lafayette v. Fisher, La. 1943, 16 So. 2d 89, the court emphasized that the above quoted provision manifests an intention not only to liberalize the provisions with respect to military personnel, but to extend the same benefits to those who have engaged themselves as surety in behalf of such military personnel.

I would reverse the trial court involving the forfeitures of James Edwin Osborne and Charles Ray Hershel.

I am authorized to state that Justices Byrd and Hickman join in this dissent.

      It is not clear from the record whether Mr. Osborne was released from the hospital or left without being formally released. It seems that his departure from the hospital was before his scheduled trial.


source: Caselaw Access Project

author: John A. Fogleman, Justice. John A. Fogleman, Justice.

license: Public Domain

text:
    THE CONTINENTAL INSURANCE COMPANIES v. Franklin STANLEY
    77-416
    569 S.W. 2d 653
    Opinion delivered June 12, 1978
    (Division I)
    (Rehearing denied September 18, 1978.]

      Reinberger, Eilbott & Smith, for appellant.

      Paul K. Roberts, for appellee.
   John A. Fogleman, Justice.

Lawrence Derby d/b/a Lawrence H. Derby Insurance Agency sued appellee Franklin Stanley, seeking judgment on a note given by Stanley for payment of the premium on a hail insurance policy on the 1974 tomato crop of Stanley. Derby obtained the policy from appellant, The Continental Insurance Companies. There appears to have been a loss which came within the coverage of the policy. Stanley answered Derby’s complaint alleging that he was not liable to Derby because appellant owed him more than the amount of the premium for loss sustained from hail damage. He filed a third party complaint, praying for judgment against appellant for the loss he alleged to be covered by the policy. He alleged that he had given due notice to appellant and had executed proof of loss as required by the terms of the policy or that the requirements had been waived by the appellant. Appellant defended on the ground that appellee had not complied with the policy.

The policy provisions on which appellant had relied throughout the trial were:

The insured shall give written notice to this company of any loss meeting with the requirements of this policy within the time herein provided.
Any claim or loss must be reported in writing by the insured within 120 hours after the occurrence of such loss.

It is conceded that Stanley gave no written notice of loss and that he filed no proof of loss. The loss occurred, according to appellee’s evidence, on April 1, 1974. No action was instituted until appellee’s third party complaint was filed on October 8, 1975.

On the basis of the record before us the court should have granted appellant’s motion for directed verdict made at the conclusion of the evidence on behalf of the plaintiff Derby, at the conclusion of the evidence on behalf of Stanley, the third party plaintiff, and at the conclusion of the evidence on behalf of appellant, the third party defendant. A motion to dismiss on behalf of appellant, first made before the commencement of the trial, was renewed, each time the motion for directed verdict was made. The motion to dismiss.was based upon a pretrial deposition of Stanley (to which the policy was an exhibit) and the basic grounds for the motion were the same as those on which the motions for directed verdict were based, which included: (1) failure of appellee to give notice of the loss within 120 days, and (2) failure of appellee to furnish proof of loss. In effect, the renewal of the motion to dismiss was nothing more than, a motion for directed verdict. The same question as to the sufficiency of the evidence to support the jury verdict was raised immediately after its return by motion to set it aside and for judgment notwithstanding the verdict. It was again raised by motion for new trial. All of appellant’s motions were denied and judgment for appellee, from which this appeal was taken, was entered. Since it is admitted that there was not a strict compliance with the policy requirements, appellant could only recover by showing waiver of these requirements. As appellant points out, the only evidence relied upon by appellee to establish any waiver of any of these requirements was the testimony of Stanley, corroborated to some extent by the testimony of James Stewart, the agent who had sold appellee the policy involved here. In essence, Stanley testified that he had been sold hail insurance by Stewart in 1970, 1971, 1972 and 1973, and had, during three of those years, sustained losses due to hail, notice of which had been given Stewart by telephone and that prompt adjustments had been made by the insurer on each of those instances without the filing of any formal notice or proof of loss. One of those years was 1970 and the policy of insurance was issued by Insurance Company of North America. Two of the others were during 1971, 1972 and 1973, when Stewart was employed by National Farmer’s Union and sold Stanley policies issued by that company.

Appellee argues that this previous conduct and course of dealing with Stewart constituted a waiver of the pertinent policy provisions by appellant, and that he had followed exactly the same procedure in 1974 he had employed in previous years. This is subject to question, because Stanley actually called Stewart’s telephone number and reported his hail damage to a woman he had never talked with before, but who he said identified herself as Stewart’s wife. Stewart’s wife denied receiving such a call, but said that if she had received such a call, she would have given her husband the message. Stewart said that he never received a message from Stanley regarding a hail loss in 1974.

Giving the evidence its strongest probative force in favor of appellee, however, lends no support to the finding of waiver by appellant, an entirely different company from those adjusting losses without written notice or proof of loss, under policies which may well have contained provisions substantially different from those in appellant’s policy. The only similarity disclosed by evidence on behalf of Stanley is his testimony that one of the other policies required written notice of loss within 48 hours. Stewart admitted that he understood the policy involved here required notice of loss within either 100 or 120 hours. There was absolutely no evidence that appellant had, on this or any previous occasion, waived either of these policy requirements in dealing with appellee or any other insured.

Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. It may occur when one, with full knowledge of material facts, does something which is inconsistent with the right or his intention to rely upon the right. Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W. 2d 518. The relinquishment of the right must be intentional. Moseley v. State, 256 Ark. 716, 510 S.W. 2d 298; First National Bank of Mineral Springs v. Hayes-McKean Hardware Co., 178 Ark. 429, 10 S.W. 2d 866.

Perhaps the term “waiver” in the context would more properly be termed estoppel, but the terms are often used interchangeably with reference to insurance contracts. Sovereign Camp, Woodmen of the World v. Newsom, 142 Ark. 132, 219 S.W. 759, 14 ALR 903. A distinction was pointed out in that case, in which we recognized authority that estoppel against an insurance company may arise when the company’s course of dealing with the insured and others known to the insured have been such as to induce a belief upon the part of the insured that a policy provision will not be insisted upon by the company. We quoted from Sovereign Camp v. Putnam (Tex. Civ. App.) 206 S.W. 970-972 (1918) as follows:

“The terms ‘waiver’ and ‘estoppel’ are often used indifferently in the same sense, as if they were interchangeable terms; but there is a distinction which it is often important to keep in mind. Waiver presupposes a full knowledge of a right existing and an intentional surrender or relinquishment of that right. * * * It contemplates something done designedly or knowingly, which modifies or changes existing rights, or varies or changes the terms and provisions of a contract; but not so with estoppel.
“ ‘Waiver is the voluntary surrender of a right; estoppel is the inhibition to assert it from the mischief that has followed. Waiver involves both knowledge and intention; an estoppel may arise where there is no intent to mislead. * * * Waiver involves the acts and conduct of only one of the parties; estoppel involves the conduct of both. A waiver does not necessarily imply that one has been misled to his prejudice, or into an altered position, an estoppel always-involves this element. * * * Estoppel arises where, by the fault of one party, another has been induced, ignorantly or innocently, to change his position for the worse in such manner that it would operate as a virtual fraud upon him to allow the party by whom he has been misled to assert the right in controversy.’ 40 Cyc. pp. 256, 257.

Furthermore, a waiver to be binding must operate either by way of estoppel or be based upon some consideration. Lawrence County v. Stewart Bros., 72 Ark. 525, 81 S.W. 1059.

In this case there is no evidence of any conduct or course of dealings by appellant in regard to these policy provisions. Appellee relies solely upon conduct of Stewart. It is clear from the Newsom case that conduct of a representative while in the employ of an insurance company, which is known to the company and acquiesced in by it, is sufficient basis for a finding of estoppel against the company. But none of the conduct of Stewart relied upon took place while he was employed by appellant and it was not shown that appellant either knew of, or acquiesced in that conduct.

There is no evidence that Stewart was anything other than a soliciting agent. Lawrence Derby testified that he sold the policy to Stanley. He said that he was able to obtain the policy from appellant. He called Stewart a broker, but testified that Stewart had a license to solicit insurance and made applications, which he brought to Derby to submit to the company. Derby said that he “brokered” the business for Stewart and paid him a commission on the business he produced. He testified that Stewart’s name did not appear anywhere on that policy.

Such an agent is a soliciting agent. Holland v. Interstate Fire Ins. Co., 229 Ark. 491, 316 S.W. 2d 707. Notice to a soliciting agent is not notice to the company. Arkansas Mutual Fire Ins. Co. v. Clark, 84 Ark. 224, 105 S.W. 257; Business Men’s Assurance Co. v. Selvidge, 187 Ark. 1040, 63 S.W. 2d 640. In the absence of a waiver, verbal notice is not sufficient when the terms of the policy require written notice. Business Men’s Assurance Co. v. Selvidge, supra. There is no evidence that Stewart had any authority to issue policies or put insurance into effect. As a matter of fact, there is no evidence that Derby had any such authority.

A soliciting agent has no authority to waive any of the policy requirements, nor can his knowledge be imputed to the company he represents. Holland v. Interstate Fire Ins. Co., supra; Clark v. Freeling, 196 Ark. 907, 120 S.W. 2d 375. Appellant had the burden of showing Stewart’s authority if he relied upon that agent’s authority to waive policy requirements. Holland v. Interstate Fire Ins. Co., supra. Appellee cannot rely upon the apparent authority of Stewart, because that is authority one dealing with the agent could reasonably suppose the agent possessed because the principal had knowingly permitted the agent to assume it or had held the agent out as possessing it. First Nat. Bank v. Godbey & Sons, 181 Ark. 1004, 29 S.W. 2d 272. There is no evidence that appellant ever permitted Stewart to assume authority to waive policy requirements or make adjustments or that it had ever done anything which could be taken as holding him out as possessing such authority.

Waiver of a policy requirement or estoppel to rely upon it may be based upon conduct of an insurance company, which must necessarily act through its agent. See Federal Life & Casualty Co. v. Weyer, 239 Ark. 663, 391 S.W. 2d 22; Gambill v. Wilson, 211 Ark. 733, 202 S.W. 2d 185. But the conduct must be that of the company or its agents. We know of no authority for basing such a waiver or estoppel upon the actions of another insurance company or on the actions of an agent while representing another company and appellee has cited none. There is no evidence that appellant knew, or had any reason to know, of Stewart’s dealings with appellee in connection with policies issued by other companies.

Other points for reversal are asserted by appellant, but we find it unnecessary to consider them, because we are convinced that the case has been fully developed and that it should be dismissed.

The judgment is reversed and the cause dismissed.

We agree.

George Rose Smith, Byrd and Holt, JJ.

Supplemental Opinion on Denial of Petition for Rehearing delivered September 18, 1978

John A. Fogleman, Justice.

Appellee has filed a petition for rehearing based entirely upon the contention that there is no proof in the record that appellee ever received the policy issued by Derby Insurance Agency before the loss occurred, and, as a result, appellee could not be bound by the requirement of the policy that written proof of loss be given within 120 hours after it occurred. Appellee says that the record discloses that Stewart, the soliciting agent, only gave appellee a binder and that appellant does not deny that the policy was issued by the Derby Agency at a later date.

This is a matter that was not in issue in the trial court. In appellee’s third party complaint against appellant, he alleged that appellant executed and delivered to appellee the policy of insurance and that it was dated March 28, 1974. He also alleged that he had given due notice and had executed proof of loss to appellant, “as required by the terms of the policy or that said requirements had been waived by appellant.” Appellant admitted delivery of the policy and alleged, in an amendment to its answer, that appellee had not complied with the requirements of the policy as to notice of loss, as to proof of loss and, in addition, appellant pleaded all other policy provisions as defenses. Appellant’s motion to dismiss quoted the policy requirements verbatim and, in it, appellant asserted that appellee had stated in a pre-trial deposition that he had read all the policy terms. Appellee filed no response to this motion.

Lawrence Derby, the first witness to testify, identified, the policy issued to appellee. Appellee testified that he did not actually get the policy on March 28, but that he later got a copy of it in the mail. He testified that he was sure that he had looked over the policy when he received it in the mail. He did not even intimate that he had not received it when he suffered the hail damage on April 1, 1974.

The trial judge gave an instruction which stated that appellee had the burden of proving that he had complied with all the requirements of the policy of insurance as issued by Continental or that his failure to do so worked no prejudice to , the rights of Continental Insurance Company, unless the jury found that these requirements had been waived by actions of the third party defendant. In making his only objection to this instruction, appellee’s attorney said: “Stanley did not comply with all the requirements, it is admitted and this is inconsistent with the Court’s action in refusing the submission of interrogatories.” The court, over the objection of appellant, added the provision as to waiver after this objection by appellee had been made. No instruction given, or , offered, would have submitted the issue now raised to the jury. An instruction requested by appellee and given by the court, advised the jury that a failure to give notice or furnish proof of loss is waived by any conduct on the part of the insurer, or its authorized agent, prior to the expiration of the time when notice may be given the insurer, which lulled the insured into a feeling of security that formal notice will not be required, is sufficient to constitute waiver. No other instruction was given or requested that could have any bearing on the issues.

Appellee did assert, in the opening statement in his brief here, that on March 28, 1974, Stewart issued a binder for the policy to be issued by appellant and that no one remembered when the policy was actually delivered to appellee. The abstract of the record does not support the latter statement, or indicate that any witness was ever asked about the date of delivery. On the other hand, when appellee was asked what he had understood the policy to say about notice of loss, he responded, “I understood it, I guess just like the policy said.”

Appellee’s only argument on this point was:

*** It must be remembered that Stewart sold the policy to Appellee on March 28, 1974, and only a binder was issued. There is no proof when the actual policy was mailed to Appellee, but it would be an exceptional performance on the part of Derby Insurance Agency to prepare and mail a policy and get it into the hands of the insured by mail within four days, because the hail loss occurred on April 1, 1974. The court was correct in denying the Motion to Dismiss.

Since it can be clearly seen that there was no issue in the trial court relating to the date of delivery of the policy, there was no reason for appellant to prove the date of delivery. We cannot consider this question raised for the first time on appeal.

The petition for rehearing is denied.


author: Conley Byrd, Justice.

text:
    ARKANSAS-MISSOURI POWER COMPANY v. James R. DEAL, et al, d/b/a DRUMMER BOY MOTEL, MILLER’S MUTUAL FIRE INSURANCE COMPANY of Fort Worth, Texas (Intervenor)
    77-414
    566 S.W. 2d 747
    Opinion delivered June 12, 1978
    (Division II)

      Reid, Burge & Prevallet, for appellant.

      Cearley, Gitchell, Bogard & Mitchell, for appellees; Thomas M. Bramhall, for intervenor.
   Conley Byrd, Justice.

Appellant, Arkansas-Missouri Power Company, while relocating its gas lines removed the vent pipe that projected from the meter serving the Drummer Boy Motel and Restaurant on U.S. Highway § 63 in Blytheville. This materially increased the gas pressure and caused a fire in the restaurant and motel. Appellant recognized its liability and told appellees James R. Deal, Elizabeth A. Deal, Chad Deal and James R. Deal, Jr., to figure up their damages. When appellees presented their bill, appellants considered it exorbitant and told appellees that they could go to court. Appellees then settled their fire claim with intervenor Miller’s Mutual Fire Insurance Company of Fort Worth, Texas for $24,024.97. Appellees furnished proof that their damages amounted to $64,847.12. Appellants furnished proof that the damages amounted to only $5,287.00. The jury fixed the damages at $45,000. Appellant appeals raising the issues hereinafter discussed.

POINT I. Appellant contends that the trial court erred in refusing to strike the testimony of Wilson Cox or portions thereof. It takes the position here that “there was no reasonable and fair basis for his opinion or estimate as to damages or a basis for any other witness or the jury to determine the before and after valuation on kitchen equipment and other furniture, fixtures and appliances.” We find no merit to this contention. The objection made in the trial court as abstracted by appellant is as follows:

“At this time Defendant moved for the Court to strike all of the witness’ testimony as not being qualified to give an estimate as to damages on the kitchen equipment or anything else except perhaps the building.”

Thus, we see that the issue relative to whether the witness gave a reasonable and fair basis for his testimony is raised for the first time on appeal. Furthermore, the witness after the objection was again examined on redirect and recross and appellant’s motion to strike his testimony was not renewed.

POINT II. Appellant contends that the trial court erred in refusing to strike the testimony of witness Gilbert Appleson. We find no merit to this contention. Appleson, in addition to testifying to the cost of new kitchen equipment as of the date of the fire, testified that the reconditioning or repairing of the kitchen equipment that had gone through the fire would be prohibitive from an economic standpoint. In the trial court appellant moved to strike the entire testimony of Appleson. Upon the motion made, the trial court did not err in denying the motion to strike the entire testimony of the witness. Consequently, we need not for purposes of review, determine whether any portion of Appleson’s testimony was inadmissible.

POINT III. Appellant contends that the trial court erred in permitting the jury to consider loss of profits for more than three months following the fire. We agree with appellant that if the owners of damaged property fail to make reasonable expenditures to minimize such injury, they cannot recover damages for any injuries which by the exercise of reasonable care they could have avoided. However, under the proof here presented, we cannot say that a fact issue was not presented that should have been submitted to the jury. There is proof in the record from which the jury could have found that appellees did all that they could within their financial ability to minimize their damages. After all it was appellant who destroyed appellees’ income that caused appellees to get behind on the SBA payments and resulted in the SBA tying up the insurance funds for 5 Vi months.

POINT IV. Appellant furnished proof that appellees’ occupancy rate at the motel never exceeded 51% and that during the time following the fire appellees never turned a customer away. However, appellant admits that at least Room 21 of the motel will be unavailable for use during the time necessary for repairs following the fire. Appellees contend that there was smoke damage in other rooms of the motel. Based upon this evidence, appellant argues that the trial court erred in permitting the jury to award damages for loss of rental value of the motel. Both appellant and appellees rely upon the case of Ross v. St. Louis I. M. & S. Ry. Co., 120 Ark. 264, 179 S.W. 353 (1915). In the comment on Clause (a) of the Restatement of the Law of Torts, § 931, we find the following:

“(b) The owner of the subject matter is entitled to recover as damages for the loss of the value of the use, at least the rental value of the chattel or land during the period of deprivation. This is true even though the owner in fact has suffered no harm through the deprivation, as where he was not using the subject matter at the time or had a substitute which he used without additional expense to him. The use to which the chattel or land is commonly put and the time of year in which the detention or deprivation occurs are, however, to be taken into consideration as far as these factors bear upon the value of the use to the owner or the rental value.”

Consequently, we find no error in permitting the loss of rental value to be determined by the jury.

POINT V. Finally appellant argues that the verdict was excessive. The record in this case exceeds 1100 pages. Appellant’s abstract of the record takes up the first 238 pages of its brief and it spends 15 pages arguing the excessiveness of the verdict. We have concluded that there is substantial evidence to support the verdict of the jury and in the interests of brevity so conclude without a recitation of the detailed facts.

Affirmed.

We agree: Harris, C.J., and Hickman and Howard, JJ.


author: Frank Holt, Justice.

text:
    WASHINGTON STREET PROPERTY OWNERS ASSOCIATION et al v. CITY OF CAMDEN et al
    77-407
    566 S.W. 2d 733
    Opinion delivered June 12, 1978
    (Division I)

      James M. Pratt, Jr., of Brown, Compton & Prewett, Ltd., for appellants.

      Ralph E. Faulkner, of Faulkner, Goza & Rollins, and Allen P. Roberts, of Gaughan, Barnes, Roberts, Harrell & Laney, for appellees.
   Frank Holt, Justice.

This case is a sequel to Lindsey v. City of Camden, 239 Ark. 736, 393 S.W. 2d 864 (1965). There as here, it involves the zoning classification of four lots in Camden from RM-1 (Multi-Family Residence District) to C-2 (Neighborhood Shopping District). On March 21, 1967, following our affirmance of the city’s refusal to rezone this property, the landowner, appellee Lloyd Lindsey, filed his present application with the appellee city to rezone the property from residential to commercial use. After notice and a public hearing at which no one appeared in opposition to the rezoning request, the Planning Commission voted to approve the application by a three to one vote, three members being absent. The Planning Commission certified its approval of the application to the seven member City Board of Directors which approved the application on May 1,1967, by a unanimous vote and enacted Ordinance 649 rezoning the property from residential to commercial use.

Two weeks later the Planning Commission and the City Manager informed the Board that the Commission, in fact, had not validly approved the rezoning application inasmuch as the proposed amendment to the zoning law had not been approved by a majority vote of the seven member Planning Commission as required by § 12.1.3 (2) of the city’s zoning ordinance. However, the manager’s report reads in part:

This matter is called to the Board’s attention so that it may reconsider its action, and, if it wishes, repeal the Ordinance making the requested re-zoning effective. A draft ordinance to this effect will be available at the meeting.
If, after consideration, the Board determines that it would have desired to enact the amendment over the Planning Commission’s disapproval, then it may choose to allow the Ordinance enacted at the May 1 meeting to stand by taking no action.
In the event the Board repeals the Ordinance, Mr. Lindsey should be notified of this action and be given a period of fifteen days in which to appeal the Planning Commission’s action to the Board of Directors.....

After being advised of the inadvertent mistake, the Board conducted a hearing at which the proponents and opponents of the ordinance appeared with counsel. Following their arguments and a discussion by the Board, according to the minutes, the Board took no action in regard to the ordinance.

Appellants appealed to the chancery court alleging the ordinance was void due to the procedural irregularities in its adoption. This appeal and a temporary injunction against commercial activity lay dormant until 1977. Then, after a hearing, the chancery court dissolved the restraining order and dismissed appellants’ complaint after finding there was substantial compliance with the procedure for amending the zoning law. Here appellants argue that the chancellor erred in finding the Board’s action in adopting Ordinance 649 was not arbitrary in view of procedural defects.

Appellants’ contention is that the present application for rezoning was not properly before the Board on May 1, 1967, when it first approved the rezoning by unanimous vote, because the seven member Planning Commission had not approved the application by a majority vote of its membership. The crux of appellants’ argument appears to be that affirmative action on the part of the Board was necessary to cure the procedural defect in the initial enactment of the ordinance, the Board must have clearly demonstrated an intent to validate the ordinance and ratify the error such as by reenactment of the ordinance. They cite Northern Texas Utilities Co. v. Community Natural Gas Co., 297 S.W. 904 (Tex. Civ. Ct. App. 1927), for the proposition that in order to evidence ratification of an invalid ordinance, it must appear that the subsequent proceedings were had with full knowledge of the invalidity of the ordinance and a manifest intent to cure it thereby.

While it is true that, here, the Commission erroneously certified to the Board their recommendation that the property be rezoned despite the clear language of the zoning ordinance which requires four affirmative votes by the Commission members, we find no prejudicial error. At the original hearing before the Commission, no one appeared to oppose the rezoning. The Commission voted three to one with three members absent to approve the change. The Board, relying upon the Commission’s certification of approval, enacted the ordinance by a unanimous vote of seven to zero. Only a majority vote was required by § 12.1.3 (4). The Commission and the City Manager, upon discovering that four affirmative votes were required for the Commission’s approval of the proposed zoning change, informed the Board that the Commission had not technically approved the proposed amendment. The Commission never sought to rescind its action or certification. In fact, the Board was advised that it could reconsider its enactment of the ordinance and repeal it. A repealing ordinance would be provided. Further, the Board could allow the ordinance to remain in force by not repealing it or “by taking no action” if it determined that it would have enacted the ordinance over the Commission’s disapproval anyway.

The minutes of the Board state:

After argument by both sides and a discussion by the Board, no action was taken. A motion was made by Director Campbell and seconded by Director Jordan to move on to the next order of business. The motion carried.

However, significantly, here we have a stipulation of facts which, inter alia, reflects that the Board by a six to zero vote, one member being absent, refused to repeal the ordinance.

In the circumstances, we agree with the chancellor that the requirements of § 12 of the zoning ordinance were substantially complied with. The subsequent action by the Board, with full knowledge of the Commission’s error in recommending approval, cured any defect. N. Texas Utilities Co. v. Community Natural Gas Co., supra.

Appellants also assert the Board’s action in adopting the ordinance was arbitrary because of another procedural defect. It is argued that the Board failed to comply with § 12.1.4 which provides:

No application for amendment to change the zoning for the same property may be resubmitted within twelve months from the date of action by the Planning Commission or City Board of Directors, whichever is later, unless the Planning Commission finds that a substantial reason exists for waiving this limitation.

Appellants insist that at the time the present application was filed on May 1, 1967, there was still pending in chancery court an appeal from a previous denial of an application filed by appellee Lindsey concerning the same property; therefore, § 12.1.4 prohibited the latter application. Here the previous application was filed on November 3, 1965, upon which the Commission acted December 9. The latest action on that application was the Board’s refusal to approve it on January 3, 1966. Appellee Lindsey’s subsequent and present application was filed on March 21, 1967, or over twelve months later.

Affirmed.

We agree.

Harris, C.J., and George Rose Smith and Fogleman, JJ.


author: Darrell Hickman, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY v. Ben L. PURDY, Lucille PURDY & MFA INSURANCE COMPANY
    77-322
    567 S.W. 2d 92
    Opinion delivered June 12, 1978
    (In Banc)
    [Rehearing denied July 10, 1978.]

      Herschel H. Friday and Overton S. Anderson, by: Overton S. Anderson, for appellant.

      Roy G. Sanders, John Plegge and William R. Wilson, Jr., for appellees.
   Darrell Hickman, Justice.

Ben and Lucille Purdy, from near DeWitt, were returning from a trip to Louisiana when their vehicle was involved in an accident with a Missouri Pacific Railroad Company train. The accident occurred just after dark on December 14, 1975, in Montrose, Arkansas, a small town in Ashley County. Missouri Pacific had a train stopped on a spur track across Highway 165 in Montrose. The train completely blocked the road. Purdy ran into the train causing serious damage to his vehicle and personal injuries to himself and his wife. He and his wife sued the railroad company for their injuries and his insurance company, MFA, intervened asking for reimbursement of money paid to Purdy pursuant to his insurance policy. The case went to the jury and a verdict was returned in favor of Ben Purdy for $19,800.00, Mrs. Purdy for $2,400.00, and MFA for $1,925.10. The railroad company alleges six errors on appeal. However, it is only necessary to discuss one because the trial court should have directed a verdict in favor of the railroad company.

First, a review of the undisputed facts. The accident occurred just after dark at about 5:45 p.m. The railroad crossing, a spur line across a main thoroughfare in Montrose, was on a level plane with the highway, unobstructed in any way. The road leading to the crossing was straight and level for some distance. A proper railroad crossing sign was located on the highway. There were no flashing or sound warning signals. There were no violations of law or regulations regarding the crossing or the operation of the train at the crossing at the time of the accident. The speed limit was thirty-five miles per hour and Purdy stated that he was driving thirty to thirty-five miles per hour. Purdy and his wife both had been through Montrose before and knew of and were aware of the railroad crossing although they had never seen a train on it before the accident. Purdy testified it was “misting” rain.

The type of railroad car that Purdy struck is a chip-hopper car — it was red in color. It presents a solid profile, almost like a regular boxcar but it has no doors. Extending below the bottom of the car to within eight or twelve inches of the track are three large hoppers with doors that are used to release chips. (The profile is not exactly solid because at each end of the hopper car there is a relatively small area of open space caused by angled ends of the hopper car which facilitates in emptying the car’s cargo). Purdy’s vehicle ran into the car somewhat off center yet striking the solid area of the hopper car.

Purdy admitted that he had several drinks previously that day. His wife said she had a drink in her hand at the time of the accident and her husband may have had a sip of liquor just before the accident. There was no testimony that either had been drinking to the point of legal intoxication.

Purdy testified that his vehicle, a 1975 Ford LTD, was in good working order, including the lights and brakes. He said that his lights were on dim at the time of the accident. He said that he did not see the train until he was thirty or forty feet from it; his wife corroborated this statement. He testified that he applied his brakes and tried to stop as soon as possible. Both Purdy and his wife testified they simply did not see the train until they were close to it — too close to stop. Both said that they never expected to see a train on the spur track.

There were no flares out although a signalman had been posted on the other side of the train minutes before the accident — the signalman was involved in a coupling operation at the time of the accident.

Certain facts were disputed. A night marshall in Mont-rose, who was about a block away at the time of the accident, said that he heard Purdy’s vehicle traveling in excess of fifty miles per hour, go into a skid, and then crash into the train. He said he and a state trooper measured 93 feet of skid marks. The state policeman verified this statement. The marshall testified it was not raining at the time of the accident although his investigative report indicated that it was raining. He tried to explain this by saying he had simply marked the wrong block on the report. The state policeman recalled the road was dry. There were street lights but their brilliance was limited.

Purdy said he did not recall his car going into a skid before he struck the train. An acquaintance of Purdy’s, who was on the scene several hours later that evening, testified he could find no skid marks. A handwritten report of Purdy’s doctor, which was taken by a nurse, had the following notation:

Patient unable to stop. Traveling about fifty miles per hour.

Mrs. Purdy, who was in the front sear next to her husband, testified that she was keeping a lookout the same as her husband and explained the accident as follows:

Well we were just driving through this little town and driving I would say around thirty or thirty-five miles when we — always when we would come to a town we would slow down to what we think was the limit going through that little town and we were just driving through there and not thinking a train being across the road and it was right there in front of us, this train, I mean we weren’t expecting it and looked up and there was a train. That’s about the only way I can describe it. [Emphasis added.]

It was the appellant’s position that the crossing was not dangerous and therefore signalmen or any additional warning signs, lights or gongs were not required; consequently, the appellant argues that the railroad company was not negligent and the cause of the accident was the inattention of the Purdys. The appellees argued that because it was dark, misting rain, and the accident occurred at a seldom-used spur track, a situation like that in Hawkins v. Missouri Pacific Railroad Company, 217 Ark. 42, 228 S.W. 2d 642 (1950), was created which raised fact questions for the jury.

The appellant asked for a directed verdict and the court denied it. We feel that this was error. An examination of the evidence in such an instance must be in the light most favorable to the party opposing the motion, in this case the Purdys. Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W. 2d 307 (1969). The Purdys asked for and convinced the trial court to instruct the jury that special circumstances existed which might have required the railroad company to give other warnings, and that whether these circumstances existed, and whether the railroad company used ordinary care, was a matter for the jury. Such an instruction was not justified by the facts in this case.

In a long line of railroad crossing accident cases we have held that injured plaintiffs could not recover against railroad companies when automobiles were driven into the side of trains standing still on a crossing. Lowden v. Quimby, 192 Ark. 307, 90 S.W. 2d 984 (1936); Gillenwater v. Baldwin, 192 Ark. 447, 93 S.W. 2d 658 (1936); Kansas City Southern Ry. Co. v. Briggs, 193 Ark. 311, 99 S.W. 2d 579 (1936); Fleming v. Mo. & Ark. Ry. Co., 198 Ark. 290, 128 S.W. 2d 986 (1939); Lloyd v. St. Louis S.W. Ry. Co., 207 Ark. 154, 179 S.W. 2d 651 (1944).

There is one exception and that is Hawkins, supra. In Hawkins we stated it was not an absolute rule of liability that the plaintiff could never recover from a railroad company when a vehicle was driven into a train that was stopped on a crossing. We reaffirmed in Hawkins a rule that we had laid down before:

It is the settled rule that whether failure of a railroad company to station a flagman at a crossing constitutes an omission of such care as an ordinarily prudent person would use under the same or similar circumstances, is a question of fact where there are obstructions which materially hinder the view of approaching trains, provided the crossing is used frequently by the public, and numerous trains are run. Inasmuch as permanent surroundings may create a hazardous condition, the rule of care goes further and requires precautions where special dangers arise at a particular time. It is said that the obligation exists, at an abnormally dangerous crossing, to provide watchmen, gongs, lights, or similar warning devices not only for the purpose of giving notice of approaching trains, but such care is to be equally observed where the circumstances make their use by the railroad reasonably necessary to give warning of cars already on a crossing, whether standing or passing, as where a crossing is more than ordinarily dangerous because of obstructions to the view interfering with the visibility of the responsible train operatives, or those approaching the track. Hawkins, supra at 46.

In the Hawkins case we decided that considering the evidence in the light most favorable to the plaintiffs, it was conceivable the jury might find the railroad company negligent and, therefore, the case should have gone to the jury. However, the facts in the Hawkins case are easily distinguished from the facts here.

In Hawkins the tracks were raised two or three feet above the highway; the plaintiffs were driving within the speed limits at about 2:00 a.m.; the raised tracks left an open space of two feet, nine inches beneath the freight car’s bottom and above the rails directly in the driver’s line of vision; immediately in front of the driver was an empty box car with both doors wide open; the driver of the Hawkins vehicle was blinded by undimmed lights that shone through from the other side of the tracks; also, a traffic light was visible across the tracks. We quoted these facts and concluded that perhaps the railroad company unintentionally had created a situation like a trap for unwary night drivers. We concluded that in such a situation the jury might have found the railroad company negligent in not providing for signals or watchmen and directed that the case be submitted to the jury.

Although the Hawkins case did not overrule any of our previous decisions, we obviously had some difficulty in distinguishing it from a similar case. In the case of Lloyd v. St. Louis S. W. Ry. Co., supra, there was also a raised or elevated crossing; open box car doors through which lights shown immediately ahead of the driver. However, we distinguished that case because there was evidence of excessive speed on the part of the driver — 130 feet of skid marks — and the fact that the driver was thoroughly familiar with the road and the crossing.

The case before us cannot, in its most favorable light, be compared to either one of these cases. Mr. Purdy simply drove into the side of the train and the evidence is insufficient to raise a question of a hazardous crossing; moreover, the evidence considered in the appellees’ most favorable light clearly places more negligence on them than the railroad company. See Lloyd v. St. Louis S.W. Ry. Co., supra. Consequently, a directed verdict should have been granted for the appellant railroad company.

The fact that it may have been misting rain, was after dark and that a seldom-used spur track was involved was not sufficient to create a question of a hazardous condition. The appellees’ argument that Purdy’s lights may have been shining under the car simply cannot be accepted. This hopper car was not an object that could have been missed by an observant, careful driver.

The rules of the road require lights that will clearly discern an object at least one hundred feet ahead of the vehicle when the lights are on dim; that a person will not drive at a greater speed than is reasonable and prudent under the conditions then existing; and, that any vehicle shall be driven at an appropriately reduced speed when approaching a railway grade crossing.

All crossings are dangerous; we have not reached the point where highways are accident-proof. We probably never will. The motorist must be aware of the inherent dangers of automobile travel and necessarily expect hazards which we all know are there. He must be aware of the warning signs and signals of those hazards, and operate his vehicle in a careful and prudent manner for both his own safety and the safety of others.

In this case, to hold that the railroad company is negligent would be to say that when it is misting rain after dark, seldom-used spur tracks should be manned by a signalman, presumably on both sides of the train; or gongs, lights or other obstructions should be installed. Such a decision would be both unrealistic and unreasonable.

This accident, like all accidents, is unfortunate; the injured parties deserving our sincere sympathy. However, the facts pretty well speak for themselves. Considering the undisputed facts in this case, and the rules of the road, we must conclude that the cause of the accident was the Purdys’ own negligence.

Reversed.

Howard, J., dissents.

Byrd, J., not participating.

Justice Howard would not dismiss the case but would reverse and remand it because he finds that an instruction given by the court was binding and therefore erroneous.


text:
    Patsy L. HOOD et al v. Clyde E. HOOD
    78-13
    566 S.W. 2d 743
    Opinion delivered June 12, 1978
    (Division II)

      Harkey, Walmsley & Belew, for appellants.

      Steven G. Howard, for appellee.
   Darrell Hickman, Justice.

On the 12th of May, 1977, Clyde Hood, the appellee, and Patsy Hood, one of the appellants, both residents of Indiana, were divorced in Howard County, Indiana. The custody of their minor child was contested and after hearing the evidence the court awarded custody to Clyde, the father. The maternal grandparents, Herbert and Lola May Roberson, also appellants, who testified at the trial, were granted two weeks’ visitation during the summer of 1977. The mother, Patsy, was granted one month’s visitation during the summer of 1977.

Neither party appealed the judgment of the Indiana court. On the day of the trial Patsy Hood took the child with her and returned to Arkansas with her parents. Her parents are residents of the state of Arkansas.

After the six weeks ’ visitation in the summer of 1977, the appellants refused to deliver the child to the appellee and a petition for a writ of habeas corpus was filed in Independence County. The appellants responded asking for a change of custody to be granted to Patsy or her parents or both. The chancellor heard the case and granted the father, Clyde Hood, the writ. The appellants bring this appeal and argue that the court’s order granting the writ was based almost solely on the principle of full faith and credit ignoring the best interests of the child.

First, there is no dispute that the Indiana court had jurisdiction over the parties and the subject matter. The parties were residents of the state of Indiana as was their child. The Indiana court heard the testimony of all the parties in this case before it rendered its decree awarding custody to the father.

Therefore, there is no doubt that on the face of it, the Indiana decree was entitled full faith and credit. Frazier v. Merrill, 237 Ark. 242, 372 S.W. 2d 264 (1963). We have in the past in unusual circumstances failed to give full faith and credit to a foreign decree awarding custody. In one case both parties had subsequently become residents of the state of Arkansas and we held that an Arkansas court had jurisdiction and authority to modify a custody decree from another state. Hamilton v. Anderson, 176 Ark. 76, 2 S.W. 2d 673 (1928). We have refused to give full faith and credit to a foreign decree where the child has become a domiciliary of the state of Arkansas. Keneipp v. Phillips, 210 Ark. 264, 196 S.W. 2d 220 (1946). We have not abandoned the principle of law that where the best interests of the child dictates a change or modification of a foreign decree it may be made. However, our recent decisions obviously discourage parties from simply seeking a new trial in a different state. Edrington v. Fitzgerald, 257 Ark. 61, 514 S.W. 2d 712 (1974). In this case the appellant, Patsy Hood, candidly admitted that when she took the child, the date of the divorce hearing, which was May 12th, and brought it to Arkansas, she had no intention of complying with the judgment of the court. She stated in answer to questions:

Q. So, you set out to have the matter re-litigated down here and have another hearing altogether down here?
A. Yes.
Q. It was shortly after you got back that you decided to do that?
A. Yes.
Q. Was that your intention to do that when you left up there?
A. I knew when I left up there that I would try my best to put Shawn in the kind of home that he should be in.
Q. You had no intention of letting Shawn go back up there?
A. No, I did not.

It is unnecessary to recite all of the evidence that was offered in this case. The chancellor gave the appellants a full and complete hearing on the matter. All of the parties testified and some other evidence was offered. The court found a very slight change of circumstances, if any, and we cannot say this finding was against the preponderance of the evidence.

The court went on to state its basic reasoning:

My decision is that the writ of habeas corpus will be granted and the child returned to the State of Indiana. My reasoning is that these parties were married in the State of Indiana, having lived there for some twenty some odd years. Custody of the child was litigated in the courts of Indiana which had access to all of the witnesses who were familiar with the parties during the marriage and this Court feels like custody of the child should properly be litigated at the place where the parties lived. That was done in this case and the Court in Indiana granted custody to Mr. Hood . . .
What disturbs me more was that they didn’t undertake to appeal nor at this time to return to Indiana and try to show the Court up there that Mrs. Hood is now a better person than she was when the case was litigated back in May, but brought the child to the State of Arkansas and I am convinced that their purpose in doing so — or starting an action here was to just get before a different Court and re-litigate the whole case from start to finish and I feel very strongly that that is highly improper. It isn’t fair to Mr. Hood because he is put to the expense, after having litigated and won in Indiana, he is put to the expense of coming to Arkansas where he no longer has access to witnesses that know the parties.

We agree with this statement by the chancellor because clearly this was a case of the appellants seeking a friendly’ forum and a retrial of a matter that had been tried in a court of competent jurisdiction only weeks before.

We have no difficulty in saying that the trial court made no errors of law nor was its finding against the preponderance of the evidence.

Affirmed.

We agree.

Harris, C.J., and Byrd and Howard, JJ.


text:
    John Gregory ROBILLARD & Harvey Joseph ROBILLARD v. STATE of Arkansas
    CR 78-14
    566 S.W. 2d 735
    Opinion delivered June 12, 1978
    (In Banc)

      Marshall N. Carlisle, of Murphy & Carlisle, for appellants.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

John Gregory Robillard and Harvey Joseph Robillard were convicted of possession of marijuana with intent to deliver in the Washington County Circuit Court and sentenced to five and eight years, respectively, in the Arkansas Department of Correction.

On appeal they raise two issues: the court failed to quash a jury panel which was not selected strictly in accordance with Arkansas law; and, the court failed to require the state to disclose the name of its informant. We find no merit to either argument and affirm the judgment.

First, the issue regarding the composition of the jury. It seems that rather than using a pure random method of selection, the jury commissioners in Washington County first determined the percentage of a particular township’s registered voters in relation to the percentage of registered voters in the county. The jury commissioners then compiled a list of jurors from each township. A township that contained 5% of the registered voters would be assigned 5% of the total jurors to be selected. The commissioners using a number chosen at random would proceed to select the jury panel by township.

Act 485 of 1975 [Ark. Stat. Ann. § 39-205.1 (Supp. 1977)], provides the method jury commissioners shall use to select prospective jurors. It provides that names shall be chosen by using a random number between one and one hundred and applied to the total voter registration list of the county. There is no provision for apportioning a percentage to any particular township.

The appellants do not really question the fairness of the system used in selecting jurors. They simply state that failure to strictly follow the statute requires reversal. It is not necessary for us to reach the issue raised because the motion to quash the panel was not timely made, there was no prejudice shown, and, there is no allegation that the method of selecting jurors was unconstitutional.

The appellants’ counsel did not make a motion to quash the jury until it had been impaneled. We have stated before that such a motion is untimely. See Huckaby v. State, 262 Ark. 413, 557 S.W. 2d 875 (1977). There was no showing in this case that with due diligence appellants’ counsel would not have learned of this problem prior to impaneling the jury. Furthermore, no evidence of prejudice was offered, nor was there any argument that prejudice occurred. Finally, the argument goes only to compliance with an Arkansas statute rather than the unconstitutional composition of a jury.

As to the question of the informant, the facts are really not disputed. An officer testified that information was received from an undisclosed informant that a delivery of marijuana would be made at a certain time and place. The officers, acting on the tip, placed the residence under surveillance. On the morning in question the appellants appeared and started removing packages from a truck. The police saw that the appellants had packages wrapped in brown Mexican wrapping paper. The appellants were then arrested. Upon opening the packages, it was found they contained marijuana.

During the trial the appellants moved to require the state to disclose the name of its informant. The judge overruled the motion and we agree with that decision. In this case the informant simply provided a “tip” and the disclosure of the confidential informant was not critical to the defense of the case. The appellants were charged with possession with intent to deliver.

In Bennett v. State, 252 Ark. 128, 477 S.W. 2d 497 (1972) we required disclosure where the defendant was charged with the sale or delivery of drugs and the informant actually participated in the crime. We did not require disclosure where defendants were only charged with possession and an informant supplied only a lead to The officers. Brothers v. State, 261 Ark. 64, 546 S.W. 2d 715 (1977).

We find no prejudice in the order of the court declining to require the state to disclose the name of the confidential informant.

Affirmed.

Howard, J., dissents.