author: Carleton Harris, Chief Justice.

text:
    Chicago, Rock Island and Pacific Railroad Company v. Barbara Gipson
    5-4797
    439 S.W. 2d 931
    Supplemental Opinion on Denial of Rehearing Delivered May 12, 1969
    [Original opinion delivered March 10, 1969, p. 296]
   Carleton Harris, Chief Justice.

In her petition for rehearing, appellee calls attention to the following language in the opinion:

“Appellee’s case is founded upon contentions that the train crew did not keep a proper lookout; that the employees of the company negligently failed to sound the whistle or ring the bell to warn of the train’s approach; that the high weeds and grass were permitted to grow along the right of way to such a height as to prevent appellees from seeing the train; and that the crossing was adnormally dangerous.
“There is testimony that the train crew failed to sound a whistle or bell, and also testimony that these warnings were given; and there is testimony pro and con relative to the other contentions.
“However, it is not realty pertinent whether the whistle and bell were sounded in time to give warning; whether a proper lookout was maintained by the railroad employees; or whether there was evidentiary support, for the. other allegations of. negligence, for it is uncontradicted that Mrs. Gipson knew the train was coining while she was still sitting in the truck on the track.”

Since we did not feel that the matters mentioned were controlling in a determination of the litigation, we merely grouped them together, mentioning that there was some evidence on all allegations. Appellee contends that, under the case of Bond v. Mo. Pac. R. Co., 233 Ark. 32, 342 S.W. 2d 473, irrespective of the negligence of the plaintiff in placing herself in a position of peril, the railroad company is liable under the lookout statute for any injury done to plaintiff, if the operators of the train, by eompfying with the lookout statute, could have seen the perilous position of the plaintiff in time to have avoided injuring her. She points out that we have said there was evidence, pro and con, on the question of keeping a proper lookout, and, therefore, this was a proper question' for the jury to pass upon. Actually, the evidence that appellee relies upon was rather meager, and really amounts to her interpretation of part of the testimony; i.e., there is no direct proof that proper lookout was not maintained.

All of the testimony on this point was given lay members of the train crew. Fireman Paul was the only railroad employee who testified to having a view of the crossing. He said that, after the train crosses over the Fourehe crossing, there is a fairly sharp curve to the left going west, up grade, for a quite a distance, and he testified that the view was obstructed by the cut or bend. He said that he was looking ahead, and the first view that he had was the top .of the pickup truck, which he could see over the bank. The distance, according to the witness, was 350 to 400 feet, and he testified that he immediately applied the. brakes. He said that his view was not obstructed by any bushes or weeds along the track, but the obstruction to seeing the crossing earlier was “the cut or the bend on the side of the hill.”

Brakeman Minims testified: “The first thing I noticed when the train threw on its brakes, and of course I looked around, by that time we had hit the pickup.” •

Brakeman Inman testified that his first knowledge was “when the brakes went to emergency — you know you can hear .that when they go into emergency. I was on the righthand side, so I scooted over to the left side and looked just about at the time of the. impact.”

In the original brief, appellee argued that, .from the statements of Minims and Inman, a jury of reasonable men might have concluded that Paul did not apply the brakes immediately when he first observed the truck on the track.

The proof, however, is uncontradicted that appellee’s vehicle could not be seen by the train crew from farther away- than 400 feet. Paul further testified that the (rain was traveling 25 miles per hour, pulling 110 cars, and that it would take about 12 seconds to get the brakes on the train all the way through; that it would take not less than 700 feet .or 2% to 3 city blocks to stop the train at the aforementioned speed.

The engineer, Charles Cauthron, verified the fact that the train was traveling 25 miles an hour,- and he said that the curve was a 25 mile an hour curve; he agreed that the train was carrying 110 ears, 63 of them loaded.' Mr. Cauthron stated, “If I was going to make a normal stop for Bigelow, I would have started back a mile before I got to town. Because with this many cars it ■would have taken about a mile.” ■ •

It therefore appears that, even if Fireman Paul did not tell the truth about applying the brakes immediately when he saw the truck, 350 to 400 feet away, the train could not have been stopped, even had the brakes been applied a1 that time, and the failure to immediately apply * ¡k* brakes would not have been a proximate cause of the accident. In Kansas City Southern Railway Company v. Shane, Admnx., 225 Ark. 80, 279 S.W. 2d 284, this court said:

“*** These three empkwees were the only eye-witnesses to the collision. A witness had testified that he thought the truck could have been seen by the appellant’s operatives, when the train was approximately 258 feet away, for a distance of about 225 feet from the crossing. This difference between 150 and 225 feet as to the distance is not of material importance here in the circumstances because the physical facts show that this train could not have been stopped in time to have avoided the collision had the truck been discovered 225 feet away. In fact 1,350 feet was required in which to stop it.”

It is thus apparent that appellee cannot prevail in this litigation on the basis of the contention that appellant’s employee failed to keep a proper lookout.

The petition for rehearing is denied.

      The testimony reflected that the truck was first observed 150 feet away.


source: Caselaw Access Project

license: Public Domain

text:
    Betty Jean Peck v. Dennis W. Peck, Jr.
    5-4910
    440 S.W. 2d 577
    Opinion Delivered May 19, 1969

      Gladys Milham Wied for appellant.

      Hall, Tucker & Lovell for appellee.
   Carleton Harris, Chief Justice.

Betty Jean Peck, appellant herein, and appellee, Dennis W. Peck, Jr., were married on April 30, 1946. Four children were born to this marriage, two presently being minors, Francis, age 16 years, and Thomas, age 15 years. On May 17, 1963, appellee obtained an absolute divorce from appellant in the Chancery Court of Saline County, appellant sighing a waiver and not appearing at the hearing. Under the terms of the decree, appellee was awarded custody of the minor children and title to all property acquired by the parties during their marriage, except for an automobile, which had been previously delivered to appellant. In September, 1963, the parties remarried, and lived together until September, 1968, at which time, Mrs. Peck instituted suit in the Saline Chancery Court for a divorce. The complaint alleged general indignities, systematically and continuously pursued, and also set out the ownership of certain property, including the home place, appellant contending that this property should be awarded to her for the use and benefit of the children, or in the alternative, that it be sold and the proceeds equally divided. She also sought' custody of the minor children'. ' Appellee filed a cross-complaint, also seeking an absolute divorce on grounds of general indignities, and the custody of the children, and denying all other allegations. On hearing, the. e.purt dismissed appellant’s complaint, granted appellee an absolute divorce upon his cross-complaint, decreed that appellant should have the automobile; vested title in the home place in appellee, subject to a mortgage indebtedness, which appellee was ordered to pay “and relieve plaintiff of any obligation to pay it;” directed that $800.00 be. paid to appellant at the rate of $50.00 per month; awarded the custody of Francis Peck to appellee, and gave custody of Tommy to Mrs. Peck, conditioned, however, that Tommy, presently at the Arkansas Children’s Colony, remain there so long as the Colony officials felt that he could be helped, and providing that, when Tommy was dismissed from the Colony, he should reside with his mother, and appellee should be responsible for his support. From the decree so entered, appellant brings this appeal. For reversal, it is first asserted that the court erred in awarding the divorce and custody-of the minor daughter to Dennis Peck, Jr., there being insufficient evidence to sustain the decree. It is then alleged that the court -erred in not awarding appellant the divorce, in not giving her custody of both children, and in failing to award her asserted interest in the property.

Mrs. Peck’s complaints were to the effect that if she were away from home, and arrived back a few minutes later than her husband thought she should, he would accuse her of being out with another man; that he would not go places with her; that he had struck her on several occasions, and would hold-her in bed until she would go into hysterics. Mrs. Peck was employed at Safeway. Her sister, aunt, and a fellow employee at Safeway, all testified in her behalf, but none observed any mistreatment by appellee.

Clyde Reaves said that appellee had told him that he had gotten angry with Mrs. Peck a few times, and had slapped her.

AVe think the preponderance of the testimony favors Air. Peck. The daughter, Francis, testified that she had heard her father and mother argue many times, hut she had not seen her father mistreat her mother. She said that she had never seen him strike her, and had observed no bruises or marks on appellant. Further, she said that her mother, on returning from a trip to Fort Bniith. told her (Francis) that she, while in Fort Smith, had gone out with other men: “She didn’t act like she was sorry about it. ’ ’ The daughter also stated that she had observed her mother kissing a neighbor, Alax Prickett. Francis testified that she desired to live with her fa ther.

Billy Peck, a son, who had been discharged from the Air Force, testified that his mother, after he had returned from service, told him that appellee had beaten her, but he was unable to observe any bruises. ' He said that his father had never struck his mother. ' Air: Peck testified that he had complained to his wife about the neighbor (previously mentioned), and also had made complaint about Reaves’ being around the house so much during his absence. He said there were instances when she had been away from home, and appellee would not tell him where she had been. Appellee denied striking Airs. Peck, though he said he had “held her.” According to his testimony, after the court had given temporary custody of the children to him, the wife had come to the house, and endeavored to find a gun' for the purpose of killing the members of the family. .

Eugene Hawley and Paul Ingles both testified that they had observed Reaves at the Peck home numerous times when Air. Peck was away at work.

- • Steve Taylor, 25 years of age and a resident of Little Rock) who formerly lived next door- to the Pecks, testified that on one occasion Mrs. Peck came to his mother’s home with her clothes and hair “messed up,” and had asked his'mother to tell Mr. Peck that appellant had been at the Taylor home (as an alibi), appellant not having been there. He also said that appellant had “made passes” at him.

We are unable to say that the Chancellor’s finding that appellee was entitled to a divorce was against the preponderance of the evidence, particularly when we consider the fact that he was in a position to observe all of the witnesses as they testified.

The record reflects that approximately one week prior to the first divorce between the parties, the house they were living in burned. Apparently, on the same day'(according to appellant’s complaint) that the divorce was granted, Mrs. Peck executed a quitclaim deed, relinquishing all of her claim to the property which the .parties had held as an estate by the entirety. The instrument was acknowledged before a Benton attorney. Thereafter, in August, 1963, according to the evidence, appellant and appellee received the sum of $10,500.00 from insurance which had been, carried on the home, and the two entered into a building contract with Capital Savings and Loan Association, wherein the closing statement re-fleets that Deimis Peck, Jr., and Betty Peck, as wife, paid $7,681.28 as a down payment on the home to be constructed, and executed a mortgage on the property in th« sum of $8,000.00. Mrs. Peck claims an equal interest in this property, stating that she was not aware of executing a deed conveying her interest. Her evidence on this point falls far short of establishing her contention. According to her testimony, appellant never ceased to live with appellee, though they were divorced from May, 1963, to September of the same year, and she asserted in her amended complaint that she signed the waiver, and agreed to a divorce in order to enable Mr. Peck to sue a union official (with whom she had an affair before the first divorce) for alienation of affection. Appellant said that the only instrument she had ever signed was the waiver, executed on April 18, 1963; however, on cross-examination, she admitted that the signature on the deed was her own, but stated: “I didn’t know I was signing a deed. ’ ’ But, when shown a copy of the divorce decree, and specifically a provision which recited that the court held that all properties acquired by the parties during; their married life, except an automobile, should be granted absolutely to Mr. Peck, Mrs. Peck admitted that this had been the arrangement. Prom the testimony:

“Q. So you understood that when that divorce was rendered that all the property was going to Mr.' Peck as well as custody of the children1?
“A. That was the agreement we made.”

Of course, though Mrs. Peck signed the mortgage as the wife of Mr. Peck, the parties were not married at the time, and appellee was_ the sole owner of the property. It may be that she signed in contemplation of the fact-that they would later remarry, but this is not established ■by the record. It is pointed out that Mr. Peck never did record- his deed, but this circumstance hardly supplies the necessary proof. The only facts established (from the testimony of appellant herself) are that she know that she lost all interest in the home property when the first divorce was granted, and that she had agreed to this 'arrangement.

Affirmed.

      The sister said that an altercation between the parties took place in the bedroom., and her sister came out “just crying and tore up.”

      Reaves testified: “I have been in the house many times'‘when Mr. Peck wasn’t at home having coffee with Mrs. Peck. I have asked Mr.. Peck many times if he objected. His answer would be. No, that he trusted me. I recall when Mr. Peck was ill last winter, I fed his hogs for him. I didn’t mind. I have done tractor work with Mr. Peck and on many occasions I have been doing a few minutes work out on the property. Yes, I have been on the Peck property many times.”

      The first divorce decree does not appear in the record before us, and the exact date cannot be definitely determined. In an amendment to her complaint, Mrs. Peck states the divorce was granted on May 23,.1963.,. In her statement of .the case, she says that it was gi’anted on May 17, 1963. Appellee, in his statement of the case, says that they were divorced on May 22, 1963.

      Mr. Peck denied that they had continued to live together, bul Mrs. Derrick, a iriend, supported appellant in this contention.


author: John A. Fogleman, Justice.

text:
    Benny A. Rinke v. Manie Schuman, et al
    5-4935
    440 S.W. 2d 765
    Opinion Delivered May 19, 1969
    [Rehearing denied June 9, 1969.]

      U. A. Gentry and Wright, Lindsey & Jennings for appellant.

      Frank H. Cox for appellees.
   John A. Fogleman, Justice.

Appellant seeks reversal of a decree denying Ms petition to redeem property from a sale to the state for nonpayment of taxes for the year 1941. The material facts are stipulated. They are:

The property was acquired by various persons through mesne conveyances from the United States Government. It was forfeited at various times for the nonpayment of taxes. It was sold to the State of Arkansas for the nonpayment of taxes for years prior to 1918. It was conveyed by the State of Arkansas on August 31, 1918, to Paul A.-Birnbach by deed which is recorded in Pulaski County. On August 19, 1919, Birnbaeh conveyed the property to Fred A. and Bruno Binke as tenants in common. Fred A. Binke paid taxes on the lands for the years 1919, 1920, 1921 and 1922. The property was sold and forfeited to the State of Arkansas for the nonpayment of taxes for the year 1923. An action to confirm the sale for the 1923 taxes was instituted in the Chancery Court of Pulaski County, Arkansas, pursuant to Act 296 of the Acts of 1929. A decree of confirmation was entered in that cause on January 15, 1931, eon-I'hming the sale of the property against all informalities and irregularities. The Clerk of Pulaski County made no record of the list of lands delinquent for the nonpayment of the taxes for 1923 filed by the collector. On January 11, 1935, Fred A. Binke was adjudged to be mentally incompetent, and he remained incompetent continuousi3r until the date of his death on January 28,1965. He died intestate, leaving surviving him his widow, Clara Binke, and Benny A. Binke, William C. Binke and Fredene Ke.ione, nee Binke, as his sole and onty heirs at law. Appellant Benny A. Binke has acquired all of the right, title and interest of the other parties by deed dated October 14, 1966.

The lands were also sold and forfeited to the State of Arkansas for the nonpayment of the taxes for the year 1941. On June 5, 1945, the State Land Commissioner conveyed the property to Manie Schuman by deed now of record. On October 12, 1958, Manie Schuman conveyed +he lands to Janis Kaye, who, in turn conveyed an undivided one-fourth interest each to Robert Allen Kaye, Marlene Kaye and Rebecca J. Kaye. Manie Schuman and his grantees have paid the taxes on all of these lots from 1945 to the date of the hearing in the trial court. On May 13, 1958, Benny Rinke was appointed guardian in succession of the estate of Fred Rinke. Neither of the guardians of Fred Rinke knew that he had any interest in the lands involved in this action. At no time between the forfeiture of 1923 and the forfeiture of 1941 was there a continuous and uninterrupted payment of taxes for a period of seven years. The lands were unoccupied and were wild, unenclosed and unimproved lands prior to the purchase by Manie Schuman in 1945. On September 29, 1953, Manie Schuman entered into a lease with J. M. Shackleford under the terms of which Shackleford was to use these lands with others as a pasture for his cattle. Since that time the pasture has been fenced.

Appellees claim title through payment of taxes under color of title since 1945, by the deed from the Commissioner of State Lands to Manie Schuman. They also alleged that Fred A. Rinke was not the owner of the lots by reason of the tax sale of 1923 for more than 10 years before he was adjudged mentally incompetent and that redemption was barred by laches and the statute of limitations by reason of the fact that a guardian was appointed for his estate in 1935.

From this ¡evidence, the trial court dismissed the ‘omplaint of appellant and made the following findings:

“That the forfeiture and sale to the State of Arkansas of the lots here under consideration, for the non-payment of the taxes due for the year 1923, and the subsequent confirmation decree effectively vested title to said property in the State of Arkansas, and the Plaintiff failed to redeem in the time and manner prescribed by law; and that the complaint of the Plaintiff should be dismissed.”

Ark. Stat. Ann. § 84-1201 (Supp. 1967) provides that lands or lots belonging to insane persons which have been sold for taxes may be redeemed within two years from and after the expiration of such disability. The .right to redeem given by this statute is self-executing and may be exercised as a matter of right. It is available in all cases, not only where the tax sale from which redemption is sought is defective, but from sales which are perfectly regular and valid. George v. Hefley, 182 Ark. 678, 32 S.W. 2d 445. The right of redemption given by this statute is not an estate or interest in land but is a statutory privilege to defeat the tax title within the time limited. It is not enlarged or diminished by the fact that the state may have sold and conveyed the interest acquired by it at a tax sale. Harris v. Harris, 195 Ark. 184, 112 S.W. 2d 40. The right to redeem runs with the land, and any person who would otherwise acquire title takes with notice. Koonce v. Woods, 211 Ark. 440, 201 S.W. 2d 748; Schiman v. Westbrook, 207 Ark. 495, 181 S.W. 2d 470. The right, exercised within the statutory time, is absolute. Schuman v. Westbrook, supra.

Under these circumstances, Fred A. Rinke would have had the right to redeem within two years after his disability was removed if he was the owner of the property at the time of the tax sale. The validity of the tax sale by which Birnbach acquired the lands is not in issue, nor is any defect therein shown. Consequently the deed from Birnbach to Fred A. and Bruno Rinke conveyed 'title which gave Fred A. Rinke the right to redeem. Our statute not only permits, but requires, a co-tenant to redeem the entire tract. Harris v. Harris, supra. Where the disability is removed by death, the heirs of the incompetent may redeem within the statutory period. Tarrence v. Berg, 202 Ark. 452, 150 S.W. 2d 753.

The right of appellant to redeem, then, depends upon the invalidity of the 1923 tax sale made before the incompetency of Fred A. Rinke. The decree of confirmation under Act 296 of 1929 operated as a bar only as to persons who might thereafter claim the land in consequence of any informality or illegality in the proceedings for the tax sale. Fuller v. Wilkinson, 198 Ark. 102, 128 S.W. 2d 251. A complete failure to record either the delinquent list or the publication of notice of sale is not an irregularity or informality in tax sale procedure, but renders the tax sale void. Carle v. Gehl, 193 Ark. 1061, 104 S.W. 2d 445. A number of cases holding that these failures are cured by confirmation proceedings are cases wherein the decree of confirmation was rendered under Act 119 of 1935. Under that act the decree of confirmation barred any and all persons with certain exceptions mentioned in the act but not material here. The distinction is clearly pointed out in Fuller v. Wilkinson, supra. These cases are inapplicable to a proceeding conducted under Act 296 of 1929.

The right of redemption being absolute and a statutory privilege, it is not barred by limitations or adverse possession because of the savings clauses in favor of persons under disability. Schuman v. Westbrook, 207 Ark. 495, 181 S.W. 2d 470; See also Kendrick v. Bowden, 211 Ark. 196, 199 S.W. 2d 740. The appointment of a guardian for the incompetent did not set the statute of limitations in motion where there was a savings clause in favor of a person under disability. Zini v. First National Bank of Little Rock, 228 Ark. 325, 307 S.W. 2d 874. Since appellant was only seeking to enforce a legal right not barred by the statute of limitations and was not seeking equitable relief, the doctrine of ladies could .have no application, even if it could otherwise apply. Davis v. Neal, 100 Ark. 399, 140 S.W. 278; Lesser v. Reeves, 142 Ark. 320, 219 S.W. 15. The doctrine of laches is applicable only where equitable relief is sought. Beattie v. McKinney, 160 Ark. 81, 254 S.W. 338.

Appellees claim that they acquired title by payment of taxes under color of title for more than seven years under Ark. Stat. Ann. § 37-102. This statute simply provides that unimproved and unenclosed land shall be deemed to be in possession of the person who pays the taxes thereon if he has color of title. This section is in itself a statute of limitations on actions to recover land and, because of the savings clause in favor of persons under disability, would not bar the absolute statutory right to redeem, which is subject to no limitation or restriction except as to the time in which it shall be exercised, i.e., within two years after the removal of the disability. Schuman v. Westbrook, supra.

Appellees rely upon the case of Rinke v. Weedman, 232 Ark. 900, 341 S.W. 2d 44. That case has no application here. In the first place, it was agreed between the pai'ties there that the tax sale under which Fred A. Rinke originally claimed ownership through Ms purchase from Birnbach was void. Thus Rinke acquired no interest whatever in the property until he obtained a deed from the Abigail Robertson Scholarship Trust in 1958. Weedman had obtained a deed from the Commissioner of State Lands in 1939 and had paid taxes on the land for more than seven consecutive years prior to acquisition of title by Rinke. In the case before us it was stipulated that at no time prior to the forfeiture of 1941 had there been any continuous and uninterrupted payment of taxes for a period of seven years. Thus there could not have been an}7 divestiture of the title of Fred A. Rinke by payment of taxes, nor had his predecessor in title been divested of title before conveyance to him, as was the. situation in the Weedman case.

The decree of the chancery court is reversed and the cause remanded for further proceedings consistent with this opinion.

Jones, J., not participating.


author: J. Fred Jones, Justice.

text:
    Larry Wayne Tabor v. State of Arkansas
    5-5421
    440 S.W. 2d 536
    Opinion Delivered May 19, 1969

      Tiner & Henry for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   J. Fred Jones, Justice.

Larry Wayne Tabor was tried before a jury on March 12, 1968, and was convicted of the crimes of forgery and uttering in the Poinsett County Circuit Court. The jury fixed his punishment at four Arears imprisonment on tire forgery charge and at two years on the charge of uttering. Judgment was entered on March 14, 1968, and Tabor was sentenced to four 3mars on the conviction for forgery and two years on the conviction for uttering. The sentences were to run consecutivety with a minimum time to be served fixed at two 3mars and a maximum time at six years. Tabor did not perfect an appeal from his original conviction, but filed a petition for habeas corpus under this court’s Criminal Procedure Rule No. 1. The petition was denied b3^ the trial court and on appeal to this court Tabor relies on the following point for reversal:

“That the trial court erred by imposing a minimum time to be served by appellant.”

Arkansas Statutes Annotated §§ 43-2306 — 2312 (Repl. 1964) provide as follows:

§ 43-2306 — “When a jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment in their verdict, or if they assess a punishment not authorized by law, and in all cases of a judgment on confession, the court shall assess and declare the punishment, and render judgment accordingly.”
§ 43-2307 — “Juries and courts shall have the power to assess the punishment of one convicted of a felony at a general sentence to the penitentiary, sncli sentence not being less than the minimum nor greater than the maximum time provided by law. At any time after the expiration of the minimum time, upon the recommendation of the superintendent and it appearing that a prisoner has a good record as a convict, his sentence may be terminated by the board.”
§ 43-2308 — “If the jury in any case, assess a greater punishment, whether of fine or imprisonment, than the highest limit declared by law for the offense for which they convict the defendant, the court shall disregard the excess, and enter judgment and pronounce sentence according to the highest limit prescribed by law in the particular case.”
§ 43-2309- — -“If the jury, in any case, assess a punishment, whether of fine or imprisonment, below the limit prescribed by law for the offense of which the defendant is convicted, the court shall render judgment, and pronounce sentence, according to the lowest limit prescribed by law in such cases.”
§ 43-2310 — “The court shall have power, in all cases of conviction, to reduce the extent or duration of the punishment assessed by a jury, if, in the opinion of the court, the conviction is proper, and the punishment assessed is greater than, under the circumstances of the case, ought to be inflicted, so that the punishment be not, in any case, reduced below the limit prescribed by law in such cases.”
§ 43-2311 — “If the defendant is convicted of two [2] or more offenses, the punishment of each of which is confinement, the judgment shall be so rendered that the punishment in one case shall commence after the termination of it in the others.”
§ 43-2312 — “Hereafter when'any person shall be convicted of more than one felony, the punishment for one of which begins before the expiration of the sentence imposed on the other, the court trying the cause shall have authority to direct that said sentence shall run concurrently, if it shall be deemed best for society and the person convicted.”

Arkansas Statutes Annotated § 43-2823 (Repl. 1964) provides:

“No convict confined in the Penitentiary shall be eligible for parole until he shall have been confined in the Penitentiary for one-third [1/3] of the time for which he was committed or to which same has been commuted; and provided further, that such time as said convict may be on furlough shall not be counted as confinement in the Penitentiary within the meaning of this section.”

In 1968 the Arkansas Legislature passed Senate Bill No. 70 which became Act 50, First Extraordinary Session of 1968, and section 28 of that act, insofar as it applies to the case at bar, is as follows:

“Individuals sentenced for a term of years less than life imprisonment are, after the effective date of this Act, eligible for parole at any time, unless a minimum time to be served, consisting of not more than one-third (1/3) of the total time sentenced, is imposed. In that event, the individual shall be eligible for release on parole after serving the minimum time with credit for good time allowances, and commutation by exercise of executive clemency.
For parole eligibility purposes, consecutive sentences by one or more courts, or for one or more counts, shall be considered as a single commitment reflecting the cumulative minimum and maximum time to be served.”

Appellant argues that since he was constitutionally entitled to the benefit of a jury trial, and since under the jury verdict lie would have been eligible for parole at any time under the provision of Act 50, supra, the trial court erroneously invaded the province of the jury in fixing the minimum time to be served by him. We do not agree. The appellant was not eligible for parole at all until he had been sentenced, and the sentence itself made him ineligible for parole until he had served-two years of the four and two year terms assessed by the jury. It will be noted that prior to the enactment of Act 50, supra, no convict was eligible for parole until he had been confined for one-third of the time for which he had been committed, and under authority of § 2310, supra, the trial court has the power <£to reduce the extent or duration of the punishment assessed by a jury.” This provision has no application to the case at bar because the trial court neither reduced not attempted to increase the extent or duration of the punishment assessed by the jury. The trial court simply sentenced the appellant to the extent and for the duration of the punishment assessed by the jury and further provided that two years of that time must be served.

The same section and paragraph of Act 50 which removed the mandatory restriction on parole in § 2823, supra, only did so ££ unless a minimum time to be served, consisting of not more than one-third (1/3) of the total time sentenced, is imposed.” Act 50 only makes the prisoner eligible for parole at any time unless he is affirmatively sentenced to serve a specific period of time consisting of not more than one-third of the total time for which he is sentenced.

The question actually comes down to whether the trial court or the jury is to fix the minimum time to be served under the 1968 statute. The penalties in the case at bar were six years penal servitude assessed by the jury, and tire appellant was committed to serve that period of time. Prior to the passage of Act 50, supra, under the consecutive sentences the appellant received, he would have been obligated to actually serve one of the sentences before the other would begin before becoming eligible for parole, § 43-2311, supra, and under the provisions of Act 50, supra, he would have become eligible for parole immediately only if the sentence had not provided otherwise.

Section 29 of Act 50, supra, provides, in part, as follows:

“The Parole Board shall release on parole any individual eligible under the provisions of Section 28 confined in any correctional institution administered by the State Department of Correction, when m its opinion there is reasonable probability the prisoner can be released without detriment to the community or himself. All paroles shall issue upon order of the Parole Board, duly adopted.”

There is good reason why the trial court rather than the jury should determine whether a prisoner is to actually serve any part of the sentence imposed before becoming eligible for parole. In many, if not most instances, the trial judge lias available knowledge of facts and circumstances pertaining to the prisoner’s background and prior criminal record, including parole violations, which are denied to a jury in determining the guilt or innocence of the accused on a specific charge. This additional information available to the trial judge, but excluded from the jury, becomes important in weighing what is best for the prisoner and society in determining whether the prisoner should become eligible for parole immediately following his conviction, and we conclude that the trial judge is best equipped to make that determination.

Of course, in some instances the jury may have before it all the facts bearing on whether the prisoner should be inquired to serve some part of the sentence imposed, before becoming eligible for parole, and in such instance the trial court might prefer to obtain the recommendation of the jury under proper instructions. In auy event we think the better rule would be to confine the juiy to the specific facts and admissible evidence pertaining to the offense for which the accused is being-tried and leave it to the trial court to determine, from a consideration of all the facts and circumstances available to him, whether the prisoner should serve a part of the time assessed b3T the jury verdict before becoming-eligible for parole.

. The judgment of the trial court is affirmed.

Fogleman, J., not participating.


author: Conley Byrd, Justice.

text:
    Calvin Hale v. State of Arkansas
    5-5409
    440 S.W. 2d 550
    Opinion Delivered May 19, 1969

      Don Gillaspie for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   Conley Byrd, Justice.

Appellant Calvin Hale appeals from a judgment sentencing him to 21 years for kidnaping and 10 years for robbery. For reversal of the judgment he relies upon the following points:

“ I. The confession introduced in evidence was improperly admitted.
“ II. The court erred in refusing to provide funds for the expenses of preparation and trial or, in the alternative, dismissing the charges herein.
“III. The court erred in giving court’s instructions numbers 6 and 9.”

The record shows that George C. James on April 11, 1967, was accosted by one Wade Eaves and appellant Calvin Hale in his apartment in El Dorado. Eaves and appellant escorted Janies from his apartment to an automobile. After driving Janies to a wooded area where they Availed awhile, they again put him in the automobile and took him to a public telephone. While appellant held a gun on James, Eaves dialed the banks where he knew James had money. As instructed, James told the bankers that he was in a business deal with Eaves and that he was going to give him some checks. After the telephone calls, Janies at gun point guve Eaves a chock on the First National Bank for $4,600.00 and a check on the Exchange Bank for $10,000.00. They then returned to the wooded area and instructed James to sit down by a tree and put out his hands. Thereupon they bound his hands and feet around the tree Avith a roll of tape and gagged him Aidth a handkerchief. After some effort, James freed himself and went to the sheriff’s office. Other Avitnesses described appellant as the man Avith Eaves on the date in question.

Wade Eaves, an inmate of Cummins State prison farm, testified that he liad been convicted of the crime of kidnaping George C. James. He identified Calvin Hale as the person with him when Mr. James was kidnaped and robbed.

The record shows that when appellant’s confession Avas obtained he Avas serving a five year sentence in LeaAuniAvorth Federal penitentiary. The officers interrogating appellant were W. T. Brewster, an El Dorado Police detective, Beryl Anthony, deputy prosecuting attorney and Sheriff Horner Pirtle. Mr. Brewster, Sheriff Pirtle and Mr. Anthony all testified that while Anthony Avas giAring the Miranda warning to appellant, appellant interrupted Anthony and said he probably knew more about his rights and the criminal law than Anthony knew. Mr. Anthony said that Avhen they first arrived, appellant was brought into the room by the federal guards and accompanying appellant was a penitentiary advisor who told them that it was the rule that a person from the penitentiary liad to be in the interrogation room, if appellant so required. Anthony said that appellant at no time indicated he wished an attorney and in fact refused to make any statement to them as long as the advisor was present. In fact he said that appellant used some pretty harsh language to the advisor in requesting him io leave the room. All of the State’s witnesses stated affirmatively that no promises or rewards were offered appellant to obtain his confession. The testimony is that when appellant suggested that he would like a sentence which would run concurrently with the five year one he was serving in the federal penitentiary, he was advised that they were not in a position to make such a deal.

Appellant Hale’s testimony was that he didn’t agree to answer all the questions and that he told Mr. Anthony that he didn’t know whether he wanted to remain silent. He testified that ho told Anthony we wanted an attorney. He said Mr. Anthony told him that the State of Arkansas was not going to press charges and that if they did, he would be given a five year sentence to run concurrently with the one he was serving and that he agreed to make the statement under those conditions. He had a bad reputation having been locked up all his life, hadn’t been out two years all of his life. That because of his record he agreed to sign a statement for five years to run concurrently with the one he was serving. When asked to describe what was going on at the time the confession was written out, appellant said:

“Á. I didn’t even read it. The only thing that I remember is he asked me if I made any money out of it, if I was supposed to have gotten ten thousand dollars, or five thousand dollars, or some large sum of money, and I told him that I didn’t get a nickel out of nothing. I also, I told him ‘you just write down what you want to and I’ll sign the statement regardless, because it cannot be used against me in court of law because I do not have an attorney present. ’ And I told him, ‘anything that you write, in fact, if I can get a five-year sentence from it to run concurrently with the time I’m doing, I’ll clear your books. Just leave me alone. Otherwise, I haven’t got anything to say.’ And I was assured that I would receive a five-year sentence if the State tried me.”

At the conclusion of a Denno hearing, the trial court found that the confession was voluntarily given after appellant had been advised of his constitutional rights. In addition to the foregoing evidence the record also shows that the state, at the request of appellant and pursuant to the Uniform Act to Secure the Attendance of "Witnesses from Without the State in Criminal Cases, (Ark. Stat. Ann. §§ 43-2005 — 43-2009 [Repl. 1964]), subpoenaed four witnesses from Leavenworth prison whom appellant refused to use.

AA7e agree with the trial court that appellant had effectively waived his constitutional rights and that the confession was properly admitted into evidence. See Miranda v. Arizona, 384 U.S. 436, 36 L. Ed. 2d 694, 86 S. Ct. 3602 (1966).

Under point 2, appellant contends that the State refused to provide him funds for the reasonable and necessary expenses of trial and preparation for trial and that it wrongfully refused to provide for the expenses for examination of defendant by a private psychiatrist. AVe find these contentions without merit.

The record shows that the trial court appointed a most able trial lawyer, with experience in criminal law, to represent appellant. The court had appellant moved from Leavenworth penitentiary to Union County jail on April 14, 1968. Appellant’s trial did not begin until Sept. 37, 3968. AA7e cannot tell from the record whether appellant remained in El Dorado during all that time but obviously the State took precautions to see that appellant had an opportunity to consult with his attorney in ample time to prepare for trial. In addition the State endeavored, pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Oases, to obtain every witness requested by appellant. In doing this we think the State discharged any burden or duty it owed appellant.

Furthermore, the record shows that the State did furnish to appellant the services of a psychiatrist. The psychiatrists furnished to appellant were selected by the Stale not for criminal work but for treatment of mental diseases. The State Hospital staff is only incidentally used to determine mental competency of criminal defendants. Selection of psychiatrists on tire State Hospital staff is done by the Governor or through his appointees and is not in any way controlled by the persons charged in this State with prosecuting criminal defendants. Under this procedure we can find no denial of due process or equal protection of the laws to the prejudice of appellant.

Surely due process of law does not require the State to furnish expenses for appellant to shop from doctor to doctor until he finds one who considers him mentally incompetent. ■ Appellant has cited us no law to support such proposition, nor have we found any. For this reason and the reasons stated above we find no merit in appellant’s point No. 2.

On appeal appellant complains that the trial court erred in giving its instructions Nos. 6 and 9. Instruction No. 6 defined kidnaping in the statutory language of Ark. Stat. Ann. § 41-2301 (Repl. 1964). Appellant now argues that the instruction is abstract and was confusing to the jury because it included, “the taking of a person into another state or territory and transporting a person for the purpose of thwarting arrest or detection. ’ ’ The instruction as given is not inherently erroneous and since appellant made no objections either general or specific to the giving of the instruction, we find his 'contention to be without merit.

Appellant’s objection to the trial court’s instruction No. 9 on the necessity for corroboration of an accomplice’s testimony is that by the careless use of a simple pronoun the instruction completely fails to carry the meaning of the rule it was intended to set out. This argument is made because a portion of the instruction reads as follows: ■ !;

“A conviction cannot be had upon the testimony of an accomplice unless you find that his testimony is corroborated by other evidence, either by direct or circumstantial evidence tending to connect,him with the crime.”

Again there was no objection to the instruction as.given. Fven if there had been, we find that the supposed error is- cured by the balance of the instruction which tells the jury as follows:

“The other evidence or corroboration is not sufficient if it merely shows the facts and circumstances that the offense was committed, but it must go further and show in the affirmative that the defendant was connected with the crime and the commission of it.”

Affirmed.


author: Prank Holt, Justice.

text:
    Poultry Growers, Inc. & Tyson’s Foods, Inc. v. Westark Production Credit Association
    5-4899
    440 S.W. 2d 531
    Opinion Delivered May 19, 1969

      Crouch, Blair, Cypert & Waters for appellants.

      Hardin, Barton, Jesson & Dawson for appellees.
   Prank Holt, Justice.

This is an appeal from the refusal of the trial court to transfer this cause to chancery court. The appellee, Westark Production Credit Corporation, is a lending agency which makes loans to its members. Loans were made to the Keeton industries which is a conglomerate operation consisting of the parent corporation, Keeton Farms, Inc., and its wholly owned subsidiaries, Keeton Mills, Inc. and K. &. W. Produce, Inc. Appellee Westark secured its loans by a first lien upon any poultry grown and produced by its debtors. ¡Subsequently, K. & W., the marketing arm of Keeton, assigned to appellee Westark all of the money due or to become due from appellant, Poultry Growers, Inc., which had contracted to purchase poultry produced by K. & W. Appellee Westark filed this action, alleging that by virtue of this assignment the appellant, Poultry Growers, is indebted to Westark in the sum of $26,313.11 for poultry sold and delivered by K. & W. to Poultry Growers pursuant to their contract. The appellant, Poultry Growers, admitted the contract with K. & W., the amount due under the contract, and that it had received from appellee Westark a notice and copy of the assignment of the indebtedness.

Poultry Growers is one of the wholly owned subsidiaries of appellant Tyson’s Foods, Inc., which is also a conglomerate enterprise and engaged in the poultry industry. Subsequent to appropriate pleadings by the appellant Poultry Growers, the appellant Tyson’s Foods, Inc. filed a motion for intervention, an intervention, and a plea for equitable setoff for $19,885.36 allegedly due from K. & W. Produce and Keeton Farms to appellants, Tyson’s Foods and/or Poultry Growers. On the same date the appellant Poultry Growers amended its answer, which right it had specifically reserved, and alleged substantially the same matters contained in the intervention of its parent corporation. Also on the same date, the appellants filed a joint motion to transfer this action to chancery court in order that their respective pleas for an equitable setoff could be presented. After a hearing, it appears that the trial court denied the motion to transfer. No formal order was entered and the case was set for trial. A few days before the trial date, Tyson’s filed an amendment to its original intervention, alleging a breach of contract on the part of appellee, Westark, in that Westark promised that any amount owed to Tyson’s by Keeton Farms or its subsidiary would be offset against the indebtedness of Poultry Growers.

When the parties appeared on the date set for trial, the trial court refused to allow Tyson’s to amend its intervention. This was refused because the amendment was not timely filed since appellee’s attorney had not received any notice. The trial court ordered that this amendment to the intervention be stricken from the record. The appellants renewed their motion to transfer the cause to chancery court which was again denied. After opening statements were made to the jury and certain stipulations were agreed upon, appellants, by leave of the court, made an offer of proof. The trial court again denied appellants’ motion to transfer and granted appellee. Westark’s motion for a directed verdict. Judgment was entered on the directed verdict and this appeal follows.

For reversal the appellants contend that the trial court erred in refusing to transfer the cause to chancery court to permit them to offer" their respective pleas and invoke the doctrine of equitable setoff which is exclusively cognizable in equity. We think the appellants are correct. The appellee, Westark, argues that the trial court refused to allow Tyson’s to intervene, that Tyson’s did not appeal from that ruling and is, therefore, not properly a party before this court. Appellee further asserts that the lower court did not err in refusing to transfer the cause to chancery because Tyson’s Foods is not a party to the contract between K. & W. and Poultry Growers and it cannot pierce the corporate veil of its subsidiary, Poultry Growers, nor can the subsidiary pierce the veil of its parent. Appellee submits that while no formal order is found in the record overruling Tyson’s motion to intervene, “ it is amply clear from the record that the court so ruled.”

We find no merit in any of these contentions. Appellant Tyson’s Foods, the parent corporation, filed its motion to intervene on September 5, 1968. Subsequently there was admittedly a hearing upon the motion to intervene, the appellant K. &. W.’s amended answer, and appellants’ joint motion to transfer the cause to chancery. We find no order disposing of these motions. Thereafter, or on September 27, appellant Tyson’s filed an amendment to its intervention, alleging a breach of contract on the part of appellee Westark. On the day set for tidal, October 1, it was revealed that neither opposing counsel nor the court had seen or received a copy of the amendment. The court struck Tyson’s amendment to its intervention on the ground that it was not timely filed and again refused appellants’ joint motion to transfer the cause to chancery court. As we construe the record, the trial court made no ruling at any stage of the proceedings that Tyson’s could not intervene in the case. From the record it appears that the court struck appellant Tyson’s amendment to its intervention, sustained appellee’s objection to certain evidence, permitted appellants’ offer of proof, and denied appellants’ joint motion to transfer to chancery court.

In Tyson’s motion for intervention, intervention, and its plea for an equitable setoff, and in Poultry Growers ’ amendment to its answer, which is substantially the same as Tyson’s intervention, it was alleged that the subsidiaries of Tyson’s, which included the appellant Poultry Growers, were operated as mere departments of the parent; that the subsidiaries of Keeton’s were similarly operated as departments of the parent; and that both parent companies and their subsidiaries were conglomerate operations relating to the poultry industry; that in the dealings between the parties, Tyson’s and its subsidiary companies were considered as one entity by all the parties, including the appellee Westark; that the Keeton companies were likewise considered .as one entity; that in their dealings, the consolidated; balance sheet of the Tyson’s companies and the consolidated balance sheet of the Keeton enterprises were relied upon by each other; that the $19,885.36 which Tyson’s seeks to apply as an equitable setoff resulted from the sale of certain products, such as hatching eggs, feed, and propane gas, to the Keeton complex; that these supplies were in turn used to produce the poultry which is the subject matter of the contract between K. & W. and Poultry Growers; that the pending suit filed b}7 appellee Westark is based upon the assignment of this contract; that appellee Westark was active in supervising and conducting the business of the Keeton conglomerate; that appellee Westark directed the purchases by Keeton and its subsidiary from the Tyson’s complex and conspired with the general manager of the Keeton companies to refuse to pay the appellants with the intention to take the assets of the Keeton companies for its own benefit, leaving the Keeton companies hopelessly insolvent and the account owed to appellants uncollectible; that within a short time after the purchase of the supplies from Tyson’s and after the sale of the poultry which is the subject matter of appellee Westark’s complaint, Westark placed the Keeton companies in receivership and ultimately in bankruptcy, leaving the companies no assets with which to pay the account owed to Tyson’s.

The appellants ’ proffered proof tended to substantiate these allegations contained in the intervention. This proof was expressly permitted by the court. Therefore, we cannot agree with appellee that the court had refused to permit the intervention. The court had the right to permit the intervention and the offer of proof in support thereof. Ark. Stat. Ann. § 27-815 (Repl. 1962). There it is provided that “Where, in an action for the recovery of real or personal property, any person having an interest in the property applies to be made a party, the court may order.it to-be clone.” Certainly, appellant Tyson’s is an interested party in the controversy between the original parties and in the recovery of its open account.

We think that either the appellants’ pleadings or the proffered proof sufficiently raised the defense of an equitable setoff and, therefore, entitled appellants to the requested transfer to chancery court where they could have the opportunity to present their theory of this case. Ark. Stat. Ann. § 27-212 (Repl. 1962) provides:

“Where the action has been properly commenced by proceedings at law, either party shall have the right, by motion, to have any issue which before the adoption of this Code was exclusively cognizable in chancery tried in the manner hereinafter prescribed in cases of equitable proceedings, and if all the issues are such as before the adoption of this Code were cognizable in chancery, though none were exclusively so, the defendant shall have the right to have them all tried as in cases of proceedings in equity.”

A defendant, when sued at law, must make all the defenses he has in that proceeding, both legal and equitable. and if any of them is exclusively cognizable in equity, the defendant is entitled to have such defense tried as in equitable proceedings and the case transferred to equity. Childs v. Magnolia Petroleum Co., 191 Ark. 83, 83 S.W. 2d 547 (1935); Wright v. Lake, 178 Ark. 1184, 13 S.W. 2d 826 (1929). In Washington Standard Life Ins. Co. v. Agee 231 Ark. 594, 331 S.W. 2d 261 (1960), we said: “If the motion alleges facts which, if proved, entitle the movant to relief obtainable only in chancery, it is not the province of the circuit court to explore the equitable issue in its entirety with a view to transferring the ease only if a preponderance of the evidence establishes the right to an equitable remedy.”

We have long recognized the doctrine of equitable setoff. Ewing-Merkel Electric Co. v. Lewisville Light & Water Co., 92 Ark. 594, 124 S.W. 509 (1909). There we quoted with approval:

“It has already been suggested that courts of equity will extend the doctrine of set-off and claims m the nature of set-off beyond the law in all cases when peculiar equities intervene between the parties. These are so very various as to admit of no comprehensive enumeration.”

It is a familiar maxim that ‘ ‘ equity regards the substance and not the form.” The relief sought by the appellants in the case at bar finds support in Black & Decker Mfg. Co. v. Union Trust Co., 53 Ohio App. 356, 4 N.E. 2d 929 (1936); Bromfield v. Trinidad Nat. Inv. Co., 36 F. 2d 646 (10 th Cir. 1929); In re Harr, 319 Pa. 89, 179 A. 238 (S.C. Penn. 1935); Knight v. Burns, 22 Ohio App. 482, 154 N.E. 345 (1926); Love v. Vina Banking Co., 168 Miss. 321, 150 So. 754 (1933).

We hold that sufficient peculiar equities are alleged in the pleadings or exist in the proffered proof, either of which entitles appellants to have this cause of action transferred to the chancery court so that their respective pleas for an equitable setoff can be presented and considered.

Accordingly, the judgment is reversed and the cause remanded.

Byru, J., dissents.


author: Prank Hour, Justice.

text:
    Vernard Ross v. Herbert B. Vaught
    5-4913
    440 S.W. 2d 540
    Opinion Delivered May 19, 1969

      J. Marvin Holman for appellant.

      Terral, Rawlings, Mattheaos & Ptirtle for appellee.
   Prank Hour, Justice.

This is an action to recover damages from a parent for his child’s negligent act. Appellee’s automobile was damaged in a collision with a vehicle owned by appellant and being driven by appelhint’s fourteen-year-old son. The complaint, as amended, alleged parental permission to drive the vehicle and that the negligence of appellant’s son is imputed to appellant by virtue of Ark. Stat. Ann. § 75-315 (c) (Supp. 1967).

The trial court sustained appellant’s demurrer to the complaint. On appeal from that order we reversed and remanded the case for trial. Vaught v. Ross, 244 Ark. 1218, 428 S.W. 2d 631 (1968). Thereupon the appellant filed an answer and counterclaim. The issues were joined by appropriate pleadings. The trial court, sitting as a jury, found that the minor was guilty of negligence which proximately caused the accident and that (lie child’s negligence was imputed to his father, the appellant. Judgment was entered for appellee in the sum of $1,449.75, and from that judgment comes this appeal. Appellant contends as ground for reversal that there is no substantial evidence to support a judgment imputing the negligence of his son to appellant.

Ark. Stat. Ann. § 75-315(c) provides:

"If aip7 person who is required or authorized b}7 Subsection (a) of this Section to sign and verify the application of a minor in the manner therein provided, shall cause or knowingly cause or permit his child or ward or employee under the age of eighteen (18) years to drive a motor vehicle upon any highway, then any negligence or wilful misconduct of said minor shall be imputed to such person or persons and such person or persons shall he jointly and severalty liable with such minor for any damages caused by such negligence or wilful misconduct. The provisions of this Subsection shall apply regardless of the fact that a driver’s license may or may not have been issued- to said minor. For purposes of this Act, a minor is hereby defined to ho any person who has not attained the age of eighteen (18) years.” [Emphasis added]

Subsection (a) requires both parents, if living and having custody, to sign and verify under oath the application of their minor child for a driver’s license.

Ajjpellant’s answer to the complaint admitted that a collision occurred between a vehicle owned and operated by appellee and a vehicle owned by appellant and driven by his fourteen-year-old son. It was specifically denied that the vehicle was being driven with permission of appellant.

Appellant and his wife were called as witnesses by appellee. They testified that their son, while working with his father, had been allowed to drive a truck in the woods from one pile of timber to another, but that to their knowledge he had never driven a family vehicle upon the highway. Appellant was not at home on the day of the accident. Mrs. Ross testified that she had company and was at home when her son drove the car, unnoticed and without permission. She last saw the ear in the yard on the afternoon of the day the accident occurred. Mrs. Ross further testified that “sometimes his buddies drove” but that she did not give her son permission to drive the car. In her own words: “He had not been allowed to drive out.”

Appellant contends that the burden of proof is upon the appellee, plaintiff in the trial court, and that “there is not one iota of evidence” in the record to show that appellant caused or permitted his son to drive the family automobile upon the highway. Appellee asserts that the testimony of appellant and his wife is unbelievable, that the trial court chose to disregard their testimony and that, therefore, there is sufficient evidence to support the judgment entered upon the court’s findings of fact. Appellee further asserts that the proof of permission or the lack of it in this case is solely within the knowledge of the parents and, therefore, that the burden of proving lack of permission should be placed upon the parents of the minor.

This is a case of first impression in construing this subsection of § 75-315.

The rule announced in Mullins v. Ritchie Grocer Co., 183 Ark. 218, 35 S.W. 2d 1010 (1931), bears on the issue in the case at bar. In Mullins we held:

‘ ‘ The doctrine is settled in this state that, if the automobile causing the accident belongs to the defendant and is being operated at the time of the accident by one of the regular employees of the defendant, there is a reasonable inference that at such time he was acting within the scope of his employment and in the furtherance of his master’s business. The inference or presumption of fact, however, may be rebutted or overcome by evidence adduced by the defendant during the trial. Where the evidence on this point is contradictory, the question is one for the jury. Where the facts are undisputed and uncontradicted, it becomes a question for the court.” (citing cases)

The rule has been restated and consistently followed. See Boehmer v. Short, 184 Ark. 672, 43 S.W. 2d 541 (1931); Ford & Son Sanitary Co. v. Ranson, 213 Ark. 390, 210 S.W. 2d 508 (1948).

We think the doctrine of Mullins is applicable to the instant case. In the- case at bar the appellant owned the automobile, and it was being driven by his unlicensed minor son. There was evidence that the boy had been permitted to drive other than upon the highway, and, according to the testimony of his mother, “Sometimes his buddies drove.” When we consider this evidence and the reasonable inferences deducible therefrom, we think that, in the case at bar, appellee made a prima facie case of liability against appellant.

Next we turn to the question Avhether the prima facie case against appellant was overcome bjr testimony from appellant and his wife that they had not given their son permission to drive the car upon the highway. In answering this question it is appropriate to review several established principles of law. •

In Skillern v. Baker, 82 Ark. 86, 100 S.W. 764 (1907), we said:

‘ •' * 8 * It may be said to be the general rule that where an unimpeached witness testifies distinctly and positively to a fact and is not contradicted, and there is no circumstance shown from which an inference against the fact testified to by the witness can be drawn, the fact may be taken as established, and a verdict directed based as on such evidence. But this rule is subject to many exceptions, and where the witness is interested in the result of the suit, or facts are shown that might bias his testimony or from which an inference may be drawn unfavorable to his testimony or against the fact testified to by him, then the case should go to the jury. ’ ’

See, also, 29 Am. Jur. 2d Evidence, § 162, and 31A C.J.S. Evidence, § 119.

In the case at bar the father is the defendant, and both parents are witnesses. It must be said that, as such, they are interested in the result of this action.

No rule is more firmly established than the rule that the credibility of witnesses and the weight to bo given their testimony are solely within the province of the triers of fact. Plunkett-Jarrell Grocer Co. v. Freeman, 192 Ark. 380, 92 S.W. 2d 849 (1936).

In Rex Oil Corporation v. Crank, 183 Ark. 819, 38 S.W. 2d 1093 (1931), the appellant was found to be liable for the negligence of the driver of appellant’s truck. It was admitted that the driver was in the general employ of the appellant corporation, and that the truck he was driving was the property of the corporation. The employee testified that on the morning of the day the collision occurred he had wholly abandoned the service of his master, and was pursuing his journey on a purely personal matter. The testimony of the employee was corroborated by that of his wife and a companion who were traveling with him. We followed Mullins v. Richie Grocer Co., supra, and held that despite their disclaimer there was a prima facie case made that the employee was in the conduct of his master’s business. Further, we said that it was for the jury to say “whether such direct testimony overcame the inferences of fact raised by the circumstances proved. ’ ’ See, also, Ball v. Hail, 196 Ark. 491, 118 S.W. 2d 668 (1938); Marshall Ice & Electric Co. v. Fitzhugh, 195 Ark. 395, 112 S.W. 2d 420 (1938); Casteel v. Yantis-Harper Tire Co., 183 Ark. 912, 39 S.W. 2d 306 (1931).

Accordingly, in the case at bar it was for the trial court, sitting as a jury, to weigh the inference of permissive use with the direct testimony to the contrary, and to say whether this “direct testimony overcame the inferences of fact raised by the circumstances proved. ’ ’

Our interpretation of this subsection [§ 75-315(c)] is' in accord with and reaffirms our view of parental responsibility recently expressed in Bicker v. Owens, 234 Ark. 97, 350 S.W. 2d 522 (1961). There we said that a parent is liable, under certain circumstances, for negligently permitting, actively or passively, a minor child to commit a willful and negligent act which could reasonably be expected to cause an injury to another person. There we said:

“It is within reason and good logic to say that the parent has a responsibility to control minor children while they are in their formative years. For while they are not in the custody of the parents, absent any official action to the contrary, no other source of'control may be found. Of course minors above a certain age are subject to criminal and civil sanctions Tout these sanctions are remedial rather than preventative. There is a question whether the civil sanctions are of any consequence since judgments against minors are of little practical effect. The old adage ‘an ounce of prevention is worth a pound of cure,’ could be applied in these situations if the responsibility for the prevention is placed on the parents.”

As was said in the concurring opinion, we fervently trust that this opinion “will be effective in bringing to the attention of parents their responsibility for the actions of their minor children.”

Judgment affirmed.


author: Frank Holt, Justice.

text:
    Allied Steel Company v. B. Bryan Larey Commissioner, Dept. of Revenues, State of Arkansas
    5-4926
    440 S.W. 2d 567
    Opinion Delivered May 19, 1969

      C. IT. Earl and James R. Howard for appellant.

      Lyle Williams, John F. Gautney and Hugh L. Brown for appellee.
   Frank Holt, Justice.

Appellant brought this cause of action, seeking to apply a reciprocal tax credit against the Arkansas Compensating (use) Tax which was paid under protest.

Appellant is an Oklahoma corporation authorized to do business in Arkansas and engaged in inter-state construction business. Appellant purchased at Memphis, Tennessee, a large mobile crane used in erecting steel on nmlti-storv buildings. Appellant took delivery in Memphis and then had the crane brought directly to appellant’s construction job site in Little Bock. The machine arrived in Little Bock in the first week of March, 1968, and after six weeks’ use there it was shipped to Oklahoma. On March 6, 1968, appellant paid the State of Oklahoma a use tax of $2,700.00, which was measured by two per cent of the sale price of the crane. On April 12, 1968, appellee assessed an Arkansas Compensating (use) Tax in the amount of $4,050.00, representing three per cent of the purchase price, against appellant for its use of the crane in Arkansas. Appellant paid the Arkansas tax under protest and filed this suit to recover the alleged overpayment of $2,700.00. The chancellor found that appellant was not entitled to relief and dismissed appellant’s complaint for want of equity. This appeal followed.

Appellant admits that there was sufficient use of the machinery in Arkansas to justify the levy of the Arkansas us.e tax. It is appellant’s position that the lower court erred in failing to give appellant credit for the use tax paid to Oklahoma. Therefore, appellant has paid $2,700.00 in excess of its tax liability to the State of Arkansas.

Ark. Stat. Ann. § 84-3130 (1967 Supp.) provides that all tangible personal property procured from without the state for use, storage or consumption by a contractor in performance of a contract in this state shall be subject to a compensating (use) tax of three per cent of the purchase price. The third paragraph of this section provides:

“The provisions of this act [§§ 84-3129 — 84-3134] shall not apply in respect to the use or consumption or storage of tangible personal property as defined in this Act for use or consumption in this State upon which a like tax equal to or greater than the amount imposed by this Act has been paid in this State upon which a like tax equal to or greater than the amount imposed by this Act has been paid in another state, the proof of payment of such tax to be according to rules, and regulations made by the Commissioner of Bevenues. If the amount of tax paid in another state is not at least equal to or greater than the amount of tax imposed by Act 487 [§§ 84-3101 — 84-3128] of 1949, as amended, then the contractor shall pay to the Commissioner an amount sufficient to make the tax paid in the other state and this State equal to the total amount of tax due under Arkansas law. No credit shall be given under this section for taxes paid on such property in another state if that state does not grant credit for taxes paid on similar tangible personal property in this State.”

Okla. Stat. Ann. Title 68 § 1404(e), in pertinent parts, provides:

“If any article of tangible personal property has already been subjected to a tax, by this or any other state, in respect to its sale or use, in an amount less than the tax imposed by this Article, the provisions of this Article shall apply to it by a rate measured by the difference only between the rate herein provided and the rate by which the, previous tax upon the sale or use was computed. Provided, that no credit shall be- given for taxes paid in another state, if that state does not grant like credit for taxes paid in Oklahoma.”

Appellant asserts that under § 84-3130 any person who pays a use tax of less than three per cent to any other state is only required to pay an amount which would equal three per cent of the purchase price of the article taxed, if the state in which the tax is paid provides for a similar credit. Reciprocal credit exists in the case at bar.

Appellee contends that Oklahoma was without jurisdiction to impose the collection of a use tax from appellant, because the crane had never come within the boundaries of Oklahoma, nor had any connection with Oklahoma until it was moved there in May, 1968. Appellee submits that since there was no basis for an Oklahoma use tax, appellant’s voluntary payment to the State of Oklahoma was not a “tax” for which appellant could claim a credit.

We agree with appellee. According to the plain moauing of the applicable Oklahoma statute, the Oklahoma use tax is a tax upon the storing, using or consuming of tangible personal property within the State of Oklahoma. Okla. Stat. Ann. Title 68 § 1402, in pertinenl parts, provides:

“There is hereby levied and there shall be paid by every person storing, using or otherwise consuming, within this State, tangible personal property purchased or brought into this State, an excise tax on the storage, use or other consumption in this State of such property at the rate of two per cent (2%) of the purchase price of such property;...”

The evidence is undisputed that appellant voluntarily paid the Oklahoma use tax some six weeks before the equipment entered Oklahoma. An officer of appellant corporation testified that the machine arrived in Little Rock approximately March 6, which is the day appellant paid the Oklahoma tax as evidenced by a Oklahoma Tax Commission Excise Tax Receipt made out to appellant. He further iestified that appellant made no use of the crane prior to its arrival in Little Rock and that it was moved from Little Rock to Oklahoma City and thereafter to Denver, Colorado.

hi our view the $2,700.00 which appellant paid to the State of Oklahoma was not a “tax” as contemplated by the reciprocal credit provision of Ark. Stat. Ann. § 84-3330 (3967 Snpp.), and appellant is not entitled to a credit in that amount against the Arkansas Compensating (use) tax assessed and collected from appellant.

Affirmed.


author: Oarleton Harris, Chief Justice.

text:
    H. L. Manning, et al v. State of Arkansas
    5-5412
    442 S.W. 2d 207
    Opinion Delivered May 26, 1969
    [Rehearing denied July 14, 1969.]

      Howell, Price & Worsham for appellants.

      Joe Purcell, Atty. Gen. and Don Langston, Ass’t. A tty. Gen. for appellee.
   Oarleton Harris, Chief Justice.

On October 17, 1967, appellants, H. L. Manning, Arthur Lee Manning aud Eddie Manning, were convicted of the crime of rape, and sentenced to 40 years imprisonment. They were represented by counsel who had been retained by their mother. On November 16, 1967, appellants filed a motion for a new trial, which was denied on November 20, appeal granted, and appellants given 45 days for preparation of the Bill of Exceptions. The appeal wTas not perfected. A petition was filed on February 14, 1968, with the trial court by the appellants, which asserted that they 'were without counsel and were paupers; they asked that the court appoint an attorney and order a transcript prepared, free of charge, for purposes of an appeal. The court found that appellants had been represented by an attorney, E. V. Trimble; that the time for an appeal liad long since expired, and no ground had been alleged under Criminal Procedure Rule No. 1 which would subjod the sentence rendered to collateral attack. On April 22, 1068, the appellants wrote the Circuit Judge, stating that their attorney had lost interest in their case, and they requested that an attorney be appointed to proceed under Rule 1. Two attorneys of the Pulaski County Bar were appointed to represent them, and a formal motion was filed by these attorneys on May 30, asking that appellants be allowed to appeal their conviction in forma, pauperis. It was asserted that the action of defense counsel in “abandoning” appellants’ cause, and the action of the court in denying legal counsel and a transcript, were a violation of their constitutional rights. Upon hearing, the Pulaski Circuit Court (First Division) denied the relief sought and entered judgment accordingly. From such judgment, appellants bring this appeal.

The petition filed by appellants has been given careful consideration, and we have reached the conclusion that no showing has been made which would entitle them to the relief sought. It is apparent from the record that the Manning Brothers- were aware that E. V. Trimble, ¡lie attorney employed by their mother, and who had conducted their defense at the trial, was not going to appeal the case, and, though not entirely clear, it appears that appellants were cognizant of this fact while they were still incarcerated at the jail, and long before appeal time had expired. "When Arthur Manning was asked if it -were true that he knew before he left the Pulaski County Jail that the case was not going to be appealed by Trimble, he replied, “I didn’t know for sure though.” All agreed that they wanted to obtain the services of a Little Rock lawyer, Allen Dishongh, to represent them, and II. L. Manning stated that he talked with Dishongh over the telephone. This contact occurred between October 17, 1967 (date of the convictions) and December 1, 1967. Though Dishongh refused employment, the brothers made no effort to communicate with the trial judge, or to advise him or any other official, that they were paupers, financially unable to employ counsel, and desired that counsel be appointed to represent them on an appeal. In fact, it appears from the record that appellants have but little use for court appointed lawyers. II. L. Manning testified, “We didn’t want no state lawyer.”

This court, long before Griffin v. Illinois, 351 U.S. 12, 100 L. ed. 891, 76 S. ct. 585 (1955), and Douglas v. California, 372 U.S. 353, 9 L. ed. 811, 83 S. ct. 814, reh den 373 U.S. 905, 10 L. ed. 2d 200, 83 S. ct. 1288 (1963), permitted paupers to appeal their convictions, a full transcript of the proceedings at the trial being furnished without cost, with court appointed counsel directed to handle such appeals. We have also ordered, under Criminal Procedure Rule 1 appeals, that a full transcript of the original trial proceedings be prepared without charge to the defendant, and counsel appointed to belatedly appeal a conviction. See Jackson v. Bishop, 240 Ark. 1011, 403 S.W. 2d 94. However, there was a distinct difference in Jackson and the present case, in that Jackson made known his indigency, even before the original trial, and was represented there by court appointed counsel.

The case of Swenson v. Bosler, 386 U.S. 258, 18 L. ed. 2d 33, 87 S. ct. 996 (1967), is not applicable to the present contention. There, Missouri had no rule requiring appointment of appellate counsel for indigent defendants, and if trial counsel withdrew from the case, the Supreme Court of that state would require preparation of the transcript for appeal, but would then consider the questions raised on the basis of pro se briefs by the defendant, or on no briefs at all. The United States Supreme Court held that this procedure violated Swenson’s Fourteenth Amendment rights, and we certainly agree with that decision. The court concluded its per curiam order with these words:

“"When a defendant whose indigency and desire to appeal are manifest does not have the services of his trial counsel on appeal, it simply cannot be inferred from defendant’s failure specifically to request appointment of appellate counsel that he has knowingly and intelligently waived his right to the appointment of appellate counsel.”

Here, it is evident that the need for appointive counsel was not manifest to the trial court, nor does the record indicate that appellants, or any one of them, made known a need for court appointed counsel to any official representing the state. Since the attorney who represented appellants at the trial did not advise the court, within appeal time, that he was not going to go any further with the ease, how was the court to know that there was need for an appointment to be made? The United States Court of Appeals for the Sixth Circuit employed pertinent language for this type of situation in Horton v. Bomar, 335 F. 2d 583 (6th Cir. 1964), where a petition for post-conviction relief was denied:

“Finally it is claimed on behalf of the appellant that ho was denied due process and equal protection of the law in violation of the Fourteenth Amendment to the Constitution of the United States for the reason that he was not provided with counsel to prosecute an appeal from his conviction in the state court. The appellant’s trial counsel apparently would not represent him in an appeal without the payment of an additionahfee. * * * The appellant does not claim that he ever advised the trial judge that he was unable-to employ a lawyer to prosecute an appeal or tliat he made a request for the appointment of counsel. It was well said by the District Judge, ‘ The trial judge is not obliged to inquire into the continuing status of their relationship.’ ”

The Federal Courts have also pointed out that, for a petitioner to be entitled to post-conviction relief, it must be shown that a responsible state official rejected the request for counsel. In Weatherman v. Peyton, 287 F. Supp. 819 (D.C. W. Va. 1968), the court said:

“For petitioner to b.e entitled to post-conviction relief, because of alleged violation of a constitutional right, it is not enough to show that he was indigent or that his privately employed counsel was negligent in not perfecting an appetil. The petitioner must show some state action. ‘State action’ is shown when a responsible official in the State’s system of justice rejects a request for counsel for a convicted defendant when he has knowledge of the defendant’s indigency and desire for appellate counsel. When an accused person retains counsel on the original trial the State may rely on the presumption that the accused’s lawyer will protect his client’s rights on appeal.”

See also United Blades v. Overlade, 149 F. Supp. 425 (D.C. Ind. 1957). This view has also received appellate approval. In Pate v. Holman, 341 F. 2d 764 (5th Cir. 1965), the court said:

“We take the position that when a defendant has retained counsel of his own choosing the State caunot be held to have violated the constitutional right of an indigent to counsel on appeal, unless the need for appellate counsel is brought home to the State, either by the defendant’s request for appellate counsel or because a responsible State official lias actual knowledge that the defendant is indigent and desires to appeal Ms conviction.”

In tlie case before us, tbe record clearly shows that no action of the state has prevented appellants from being afforded full protection for their constitutional rights. Surely, in holding that a convicted indigent could assert the violation of constitutional rights in a post-conviction hearing, it was not the intention of the United States Supreme Court to entirely sweep away state statutory law setting out orderly procedures, including that of appeal, unless such statutes offend the exercise of individual rights guaranteed by the Constitution.

It might also be said that appellants, though contending that there were errors in the trial proceedings (in a letter of April 22,1968, to the trial court), and that constitutional rights were violated, do not point out any asserted error, or specific instance of a constitutional violation. In Jackson v. Bishop, supra, cited by appellant as authority applicable to the present petition, Jackson, in his Bule 1 petition seeking relief, alleged three specific violations of his constitutional rights,5 and, as previously mentioned, was represented in the trial court by counsel appointed by that court. Here, only conclusions are set out, without any mention whatever of the acts relied upon for the conclusions reached.

Summarizing, appellants sought to secure the services of another attorney to replace Trimble in taking their appeal; though unsuccessful, no effort was made to contact any other attorney, or, if they were without funds, to make this condition known to the trial court. Actually, the testimony reflects that they were apparently rather confident that funds for the employment of an attorney would be furnished by the employer of an older brother (a brother not involved in this case). It appears that it was only after this effort had failed, and appellants had been sent on to the penitentiary, that they advised the court that they were paupers, and would like to have counsel appointed to represent them. There is absolutely no evidence that any state official was aware that retained counsel did not represent appellants until long after the time for appeal had expired, nor is there any indication that the state had knowledge of appellants’ indigency and need of appellate counsel until appeal time had terminated.

It follows that the judgment of the trial court should be, and hereby is, affirmed.

It. is so ordered.

Byrd and Holt, JJ., dissent.

      Ark. Stat. Ann. § 43-2701 (Repl. 1964) provides as follows: “No. appeals to the Supreme Court in a criminal case shall be granted, nor writs of error issued, except within sixty (60) days after rendition of the judgment of conviction in the case except that the trial judge with his discretion may by order entered prior to the expiration of said sixty (60) days extend the time for not to exceed an additional sixty (60) days.”

      This rule, adopted by the court on October 18, 1965 (amended on April 10, 1967) sets out the grounds for, and procedure to be followed in. petitions for post-conviction relief.

      This remark was made with reference to their trial; Manning was rather critical of the lawyer selected by his mother.

      The case was reversed with directions that an evidentiaryhearing be held to determine if Pate had (as he claimed) written the County Solicitor, the Attorney General of Alabama, and twice written the trial judge, advising of his difficulties, and asking for the assistance of appellate counsel.
      5“1. That the rights of the appellant under the Fifth and Fourteenth Amendments to the Constitution of the United States were violated by introduction of alleged oral confessions made prior to advice to the appellant of his constitutional right to remain silent and to be represented by counsel.
      “2. The rights of the appellant under Section 15 of Article 2 of the Constitution of tbe State of Arkansas and the Fourth Amendment of the United States Constitution were violated by the illegal search of his motel room and the use of evidence so obtained against him at the trial.
      “3. That the court erred in admitting a .33 caliber Smilh & Wesson pistol into evidence without proper foundation, and the value of this pistol was absolutely necessary to establish the minimum of $35.00 in value of articles taken to justify a charge of grand larceny.”