text:
    SERVICE PHARMACY and UNITED STATES FIDELTY and GUARANTY Company v. Leora COX
    5-5860
    478 S.W. 2d 749
    Opinion delivered April 10, 1972

      Barrett, Wheatley, Smith ir Deacon, for appellants.

      Gannoway, Darrow & Hanshaw, for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case in which Service Pharmacy and its compensation insurance carrier appeal from a judgment of the Craighead County Circuit Court affirming an award for total disability made by the Workmen’s Compensation Commission to Leora Cox because of an aggravation of pre-existing varicosities in her legs while employed as as waitress by the appellant, Service Pharmacy, in Jonesboro, Arkansas. The appellants contend that there is no substantial evidence in the record to sustain the award of the Commission, so that is the only question before us on this appeal. Mayner v. Flyer Garment Co., 249 Ark. 384, 459 S. W. 2d 413 (1970).

The record reveals that in 1963 Mrs. Cox underwent surgery for the relief of varicosities in her right leg and was advised by the doctor that she needed similar surgery on the left leg. Mrs. Cox testified that after staying off her feet for approximately six weeks following the surgery in 1963, she got along fine and encountered no further difficulty with her legs until 1968. She testified that about September 1, 1966, she went to work for the appellant-employer as a waitress, and that her duties consisted of waiting tables and helping with the preparation and serving of meals, sandwiches and drinks at the appellant’s drugstore. Mrs. Cqx testified that in March, 1968, her legs began swelling and became painful and that her family physician, Dr. Poole, referred her to Dr. Bascom Raney who gave her some “fluid tablets” for the swelling in her legs. She said that by taking the tablets she was able to continue her work at the drugstore until in September, 1969, when the swelling became more pronounced and the pain so severe, she was forced to return to Dr. Poole for treatment. She said that Dr. Poole advised her to stay off of her feet, which she did for a period of two weeks during which time her condition improved. She testified that she returned to work on October 13, 1969, and worked until October 24 when she was forced to quit under Dr. Poole’s advice and seek surgical intervention for the condition she then had. The evidence is to the effect that Mrs. Cox worked at the drugstore six days a week alternating a nine and one-half hour day with a six hour day and that the cafe portion where Mrs. Cox worked, had a concrete floor covered with linoleum tile. The evidence is to the effect that the cafe business in the drugstore gradually increased with the passage of time and that the necessity for Mrs. Cox to be constantly on her feet in the performance of her duties increased along with the cafe business.

In support of the appellants’ argument that there is no substantial evidence that Mrs. Cox suffered an accidental injury growing out of or occurring within the course of her employment, they cite Larson on Work-

eyes of little needles, it would seem manifest that our Act did not undertake to limit compensation to cases where the injury was begun and completed within narrow limits of time, but that it used the expression ‘injury by accident’ in its common-sense everyday conception as referring to an injury produced without the design or expectation of the workman.’”

In Batesville White Lime we further said:

“We conclude that, even though the evidence did not show the exact instant at which the disability of appellee could be said to have occurred by reason of breathing the dust, nevertheless, as shown by the proof, the inhalation of this dust did aggravate appellee’s heart ailment to the point of totally disabling him, and therefore the finding of the referee that appellee suffered an accidental injury in the course of his employment was correct.”

See also W. Shanhouse & Sons, Inc. v. Sims, 224 Ark. 86, 272 S. W. 2d 68, where an award for disability caused by empyema was affirmed under medical evidence to the effect that the empyema attended by pleural adhesions was not caused by the claimant’s work, but that it was aggravated by her work in lifting and pulling, thereby irritating the pleural adhesions causing them to weep and develop a fluid which created a basis for the empyema.

The appellants do not question that compensation is payable under the Arkansas law for the aggravation of a pre-existing condition, Hamilton v. Kelly Construction Co., 228 Ark. 612, 309 S. W. 2d 323, but the appellants argue that Mrs. Cox failed to prove by any substantial evidence that her pre-existing condition was aggravated to the point of disability by accidental injury arising out of and in the course of her employment. We now examine the evidence on this point.

Dr. Grover Duckett Poole testified that he first saw Mrs. Cox, in connection with the vascular problems in her legs, on September 25, 1969, and that he diagnosed her men’s Compensation Law, and also 99 C.J.S. on Workmen’s Compensation, as well as court decisions defining “accidental injury” as requiring the elements of “unexpectedness of cause or result and a definite time the injury occurred.”

Ever since our own 1956 opinion in Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436, we have been committed to the proposition that,

“. . .an injury is accidental where either the cause or the result is unexpected or accidental, although the work being done is usual or ordinary.”

In Harding Glass Co. v. Albertson, 208 Ark. 866, 187 S. W. 2d 961, we quoted from 18 Schneider on Workmen’s Compensation Text, Vol. 4, § 1328, p. 543, in part, as follows:

“‘It may be stated generally that if the conditions of the employment, whether due to over-exertion, excessive heat, excessive inhalation of dust and fumes, shock, excitement, nervous strain or trauma, tend to increase an employee’s blood pressure sufficiently to cause a cerebral hemorrhage, such result constitutes a compensable accident within the intent of most compensation acts, though the employee may have been suffering from a pre-existing diseased condition which predisposed him to such result, or where such result would have occurred in time due to the natural progress of such pre-existing condi-

In Batesville White Lime Co. v. Bell, 212 Ark. 23, 205 S. W. 2d 31, the claim involved the aggravation of a heart condition brought about by the inhalation of dust over a considerable period of time. Compensation was awarded and in affirming the award, we quoted with approval from the North Carolina case of McNeely v. Carolina Asbestos Co., 206 N. C. 568, 174 S. E. 509, as follows:

“‘Unless we attempt to whittle down or enlarge words or undertake to put big threads through the condition as “bilateral varicose veins - thrombophlebitis of left leg.” He testified that the thrombophlebitis consisted of blood clots in the deep veins of the leg and that he treated Mrs. Cox by hospitalization in bed with elevation of the left leg. The overall substance of Dr. Poole’s testimony was to the effect that Mrs. Cox had diseased blood veins in her legs; that standing will slow the blood flow through diseased veins and cause blood clots to more likely occur. Dr. Poole testified that following Mrs. Cox’s release from the hospital on October 16, 1969, she had had considerable bed rest and light work around the house and her condition was greatly improved. He then testified as follows:
“[T]hen on the 23rd when I saw her she had had one period of a week of working again and was then showing swelling of her feet which would indicate circulation was definitely impaired and that is when I told her I didn’t think she could continue working without going into another blood clot or some other serious disturbance.”

Dr. Poole was then asked and answered questions as follows:

“Q. Now knowing Mrs. Cox and knowing that she worked as a waitress at Service Pharmacy and, of course, aware that the long hours that she worked, would you say that the long hours she stood as a waitress and other duties that she had out there aggravated her pre-existing condition of varicose veins?
A. Yes.
* * *
Q. Doctor, you saying however though it is caused by prolonged standing or prolonged walking — anything that would — any occupation that Mr. Landis said that would require prolonged standing or slowing of the blood flow?
A. Would aggravate this condition, yes — I believe we have been over that before.”

Dr. Poole referred Mrs. Cox to Dr. William Floyd Hayden, a general surgeon in Little Rock who performed additional surgery. Dr. Hayden testified that he first saw Mrs. Cox on April 7, 1970, at which time she had marked varicosities of both lower extremities, most marked on the left and that she also had secondary bilateral pedal edema. He testified that Mrs. Cox was not suffering from thrombophlebitis at that time and that he stripped the offending vein from the left lower extremity. He said that she was admitted to the hospital for that purpose on May 7 and discharged on May 13. Dr. Hayden then was asked and answered the following questions:

“Q. Doctor Hayden, knowing Mrs. Cox’s present condition and assuming that for approximately three years prior to 1969, she worked as a waitress at a pharmacy on an average of approximately eight hours a day and her work required her to be on her feet for prolonged periods of time on a concrete floor. Would you have an opinion as to whether or not this work would tend to aggravate a pre-existing condition of varicose veins?
A. Yes, it would have a tendency to aggravate an existing condition. Occupational influence is one of the major three predisposing factors toward formation or aggravation of varicosities.
Q. All right, sir. Let me ask you this question next. In your opinion, did this work aggravate Mrs. Cox’s condition of varicose veins?
A. Yes.
Q. All right, sir. In your opinion, is Mrs. Cox able to work now?
A. Not at a full-time standing-up on her feet all the time type job. She may - surgery didn’t cure Mrs. Cox’s legs or didn’t make them new legs. In the future why she will have to take care of her legs and she will have to wear support hose for an indefinite period of time and learn to elevate them when she sits down and in general just take care of her legs. She should, if she could find employment that didn’t require her, you know, to stand up, you know, several hours a day, why I don’t think she would be able to stand up several hours a day month after month without winding up, breaking down her skin or having some more double from her legs, probably developing some stasis ulcers, but if she could find employment that didn’t require all this prolonged standing I don’t know why she wouldn’t be able to do it.”

Two of Mrs. Cox’s fellow-employees were called as witnesses by the appellant-employer. Mrs. Julia Hollingworth testified that she was 74 years of age and had been employed as a waitress at the Service Pharmacy since 1965. Mrs. Bernice Lincoln testified that she'is fountain manager and cook at the Service Pharmacy and had been so employed for 14 years, and was Mrs. Cox’s immediate supervisor. Both of these ladies testified that-they worked with Mrs. Cox doing the same type of work she was doing. They both testified that the work- in the cafe required long periods of standing on their feet, and they both testified that their own feet and legs swollen arid painful from prolonged standing on the concrete floor where they worked.

We are of the opinion that there was some substantial evidence to sustain the Commission’s finding, so we conclude that the judgment of the circuit court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Frank Holt Justice.

license: Public Domain

text:
    James Earl POLK v. STATE of Arkansas
    5696
    478 S.W. 2d 738
    Opinion delivered April 10, 1972
    /. H. Cottrell, for appellant.

      Ray Thornton, Atty. Gen., by John D. Bridgforth, Asst. Atty. Gen., for appellee.
   Frank Holt Justice.

Appellant was charged by separate informations with the crimes of robbery and grand larceny. A jury acquitted him of the robbery charge. Subsequently he was convicted of the grand larceny charge by a jury and his punishment assessed at 21 years in the state penitentiary under our habitual criminal act. Ark. Stat. Ann. §§ 43-2328 — 2330 (Supp. 1969). From that verdict appellant, by his court-appointed trial counsel, brings this appeal.

It is first asserted for reversal that: “The Court erred in not granting defendant’s motion for a dismissal on the grounds of double jeopardy in that this trial involved relitigation between the same parties of issues actually determined at a previous trial, and under the doctrine of collateral estoppel this trial is barred.” We cannot agree.

According to the state’s evidence, the appellant and a codefendant, William Wayne Decker, robbed a filling station attendant and then locked this robbery victim and a customer, the prosecuting witness in the case at bar, in the rest room. Thereupon the appellant and his codefendant left the scene by stealing the customer’s car. Appellant’s argument is to the effect that since a previous jury acquitted him of the alleged offense of robbery, the state is collaterally estopped from relitigating the matter of appellant’s identification for the second time at the scene of the two crimes which arose out of the same episode. In support of this contention appellant cites to us Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469 (8th Cir. 1970). We cannot agree that this decision is applicable in the case at bar. There, in applying the doctrine of collateral estoppel, the court said:

“*#*'Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether'a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’”

In the case at bar, we do not have before us these indicia. The burden is upon the appellant to demonstrate from the record of the previous proceeding exactly what were the issues there. In the absence of that, we are unable to tell from the general verdict upon what basis the jury acquitted appellant. In Turner v. State, 248 Ark. 367, 452 S.W. 2d 317 (1970), the argument appellant now asserts was presented by stipulation.

In the circumstances we are of the view that our recent decision in Decker v. State, 251 Ark. 28, 471 S.W. 2d 343 (1971), is applicable in the case at bar. There we recognized that although two acts arise out of the same incident, they are not the same offense. We observed: “We have said that where two acts are intended to suppress different evils, the acquittal or conviction of one [alleged offense] will not preclude prosecution of the other.” In the case at bar the offenses of robbery and larceny, although arising out of the same episode, are two separate crimes and the pertinent statutes are designed to suppress different evils. Also, in Decker, we said, “the test is not whether the defendant has already been tried for the same act but whether he has been put in jeopardy for the same offense.” Inasmuch as we do not construe Ashe v. Swenson, supra, applicable to the case at bar, we are of the view that appellant’s trial on the larceny charge did not place him in double jeopardy in violation of state and federal constitutions.

Appellant next asserts for reversal that: “The court erred when, after the State had rested, defendant’s motion for directed verdict by reason of State failing to show value of automobile was overruled, and the Court permitted the State to reopen the case and attempt to show value.” It was within the sound discretion of the trial court, in the furtherance of justice, to permit the state to reopen its case and offer proof as to the value of the stolen property. Bland v. State, 251 Ark. 23, 470 S.W. 2d 592 (1971); § 43-2114 (Repl. 1964). We find no abuse of discretion in the case at bar.

Appellant next asserts for reversal that the state failed to show the value of the automobile allegedly stolen by the appellant when it was permitted to reopen the case for that purpose. The owner of the 1957 Ford automobile testified, in response to a question as to the car’s value: “About a Hundred and a Half, Two Hundred.” Appellant argues that it is not shown that the value of the automobile was in excess of $35 as is required by § 41-3907 (Repl. 1964) in cases of grand larceny. Appellant, also cites Rogers v. State, 248 Ark. 696, 453 S.W. 2d 393 (1970). In that case there was a complete absence of any evidence upon the value of the automobile. Here, however, there was an expression as to its value. The jury was told in a standard instruction that they were not required to set aside their common knowledge as individuals and that they had a right to consider the evidence in the case in accordance with their own observations and experience in the affairs of life. We think the jury could properly infer from the value evidence that the owner meant that he was placing a monetary value upon his automobile. Accordingly, we find no prejudicial error in the allegedly deficient expression as to the value of the automobile.

Appellant next asserts for reversal that: “Testimony of prosecution witnesses that defendant had committed a robbery prior to the larceny of the automobile was prejudicial to defendant since a previous jury had acquitted him of this charge.” We find no merit in this contention. We have often held that where acts are intermingled and contemporaneous with one another, then evidence of any or all of them is admissible against a defendant to show the circumstances surrounding the whole criminal episode. Harris v. State, 239 Ark. 771, 394 S.W. 2d 135 (1965). Furthermore, the court gave a cautionary instruction to the jury that any evidence pertaining to robbery was merely a “part of the circumstances and facts for your consideration in determining whether the defendant [appellant] was guilty of the crime of grand larceny.”

Appellant next asserts for reversal that, “It was error on the part of the prosecution to repeatedly ask of defendant ‘On or about the 3rd of July 1970, are you guilty of robbing Pete’s Esso Station?”’ This inquiry referred to a different robbery than the one in the case at bar. On cross-examination appellant admitted previous convictions; however, he denied that he was “guilty of robbing Pete’s Esso Station.” Later in the trial when appellant again testified, he was asked the same question and again denied that he was guilty of robbing Pete’s Esso Station.

It is well established that a defendant cannot be asked if he has ever been indicted, charged, or accused of offenses. However, it is equally well established that a defendant can properly be asked if he was guilty of a particular offense. This is permissible to test the credibility of a witness and the state is bound by the answer. Black v. State, 250 Ark. 604, 466, S.W. 2d 463 (1971), In the case at bar there was no objection to the second inquiry. In the circumstances we find no merit in appellant’s contention that it was prejudicial error to permit the state to ask appellant if he was guilty of a particular offense.

Affirmed.

Byrd, J., dissents. He would apply Ashe v. Swenson.


author: Carleton Harris, Chief Justice.

text:
    Clemons JOHNSON v. STATE of Arkansas
    5703
    478 S.W. 2d 876
    Opinion delivered April 17, 1972

      Sloan, Ragsdale ér Dishongh, for appellant.

      Ray Thornton, Atty. Gen., by James A. Neal, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Clemons Johnson, appellant herein, was charged with the crime of murder in the first degree. At the conclusion of the State’s evidence, the Pulaski Circuit Court, on its own motion, reduced the charge to second degree murder. The jury returned a verdict finding appellant guilty of the crime of voluntary manslaughter. Johnson subsequently filed a petition under Criminal Procedure Rule 1, asserting various grounds in contending that he had not received a fair trial. Witnesses were subpoenaed, and the court conducted a hearing on the allegations in the petition. At the conclusion thereof, the court denied the petition and remanded appellant to the Department of Correction. From the judgment entered denying the petition, appellant brings this appeal.

Though, as stated, several different grounds for relief were originally raised, only one point is here relied upon, viz, the trial court erred in refusing to vacate the finding of the jury after it was established that a juror possessed knowledge which could have been prejudicial to the defendant in his original trial.

This contention is based upon the fact that Nace Bradford, a member of the jury which found appellant guilty of manslaughter, did not inform the court that he knew Johnson prior to serving on the jury, and it is apparently appellant’s contention that Bradford knew something about the facts in the case being tried, or that he knew of. Johnston’s prior criminal record. It really is not clear which contention is being relied upon for different witnesses were interrogated with regard to both contentions.

Bradford, 82 years of age, testified that he could not see well enough to recognize appellant when the jury was being selected; that when the clerk read Johnson’s name at the commencement of the trial, it did not “register” with him, and it was only after his selection, that he realized that he knew Johnson. He said that, after realizing that he knew appellant, he did not know the correct thing to do (whether to tell the court or not), and accordingly did nothing. The witness was very emphatic in stating that he knew nothing about the facts in the case, had never heard them discussed, and reached his decision simply on the law and the testimony. Bradford was interrogated at length as to prejudice but he constantly maintained that he had no prejudice, and decided the case simply on the presentation of the evidence. Bradford’s testimony is rather convincing, and, in fact, it does not appear that he had any close connection with Johnson. He said that he was connected with Johnson’s family in a small church for a number of years, although he did not know the appellant during that period of time. Johnson had worked on a bricklaying job, Bradford being the job foreman, which was “quite a period” of time before the trial. Of cotirse, the mere fact that Johnson was known by Bradford, or that they had worked together, would not disqualify the latter; Missouri Pacific Railroad Co., Thompson, Trustee v. Fikes, Admn., 211 Ark. 256, 200 S.W. 2d 97. It definitely is not shown that Bradford knew anything about the case.

Joe Montgomery and Earnest H. Mason, who had worked on the job with Bradford and appellant and who had been subpoenaed at the instance of Johnson, both testified that they knew about Johnson being in some trouble, and Montgomery stated that Johnson mentioned it to him, but both witnesses testified that they never heard the case discussed with Bradford, nor did they hear it discussed in his presence. The attorney who represented Johnson at the original trial testified that he consulted and conferred with his client throughout the trial, and it would certainly appear that Johnson, if he thought Bradford was prejudiced against him, would have called his lawyer’s attention to the fact that this man was on the jury panel, and should be disqualified or excused.

The only other evidence offered on this point was by appellant’s wife, Gladys Johnson, who testified that she called Bradford over the telephone, the record revealing the following:

“Well, I just asked him did he know Clemons before he was a juror, and he said that-wel-1,1 asked him ‘did-n’t you remember Clemons before you went in the jury room?’ and he said no he didn’t remember him until he got in there and then ‘I remembered.’ I said, ‘Mr. Bradford, wasn’t that time enough for you to tell someone you knew him?’ He said, ‘Well, I guess it was.’ He said he did the best he could do on account of he already had a record and everything.”

Johnson did not take the stand in his original trial, and it is thus contended that there was no way the jury could have known about Johnson having a prior record, other than to be informed of it by a juror.

This is all of the evidence relating to a past “record” and we agree with the trial court that it was insufficient to afford the relief sought. With the exception of this last mentioned testimony, there is no evidence at all of any prejudice on the part of the juror, nor is there any indication that he did other than try the case on the evidence presented. Certainly, it does not appear that the jury was swayed by prejudice since they reduced the charge against appellant from second degree murder to manslaughter.

The judgment dismissing appellant’s petition is affirmed.

It is so ordered.


author: George Rose Smith, Justice.

text:
    Lee W. BROWN Jr. et al v. Lee W. BROWN Sr.
    5-5852
    478 S.W. 2d 880
    Opinion delivered April 17, 1972

      Donald K. King, Charles G. Hollis and Hale, Hale, Fincher ér Hale, for appellants.

      Terral, Rawlings, Matthews ¿r Purtle, for appellee.
   George Rose Smith, Justice.

This litigation, primarily between a father and one of his sons, involves their rival claims to the exclusive use of a business telephone number in North Little Rock: FR 4-0129. The son, Lee W. Brown, Jr., appeals from a decree awarding the number to his father, the appellee. The telephone company takes a separate appeal from certain language in the decree which requires the company to obey the court’s directives in the matter.

As between the father and son the issues are largely factual. The elder Brown entered the plumbing business by himself in Pulaski County about 35 years ago. He continuously used essentially the same telephone number, originally 4-0129 and later FR 4-0129. Through the years Brown advertised the number extensively and in that way made it a valuable business asset.

Some four or five years before Mr. Brown decided to retire from active participation in the business he was joined in the venture by his sons, Duane and Lee, Jr. The business was incorporated, with Mr. Brown and his wife at first owning all the stock. Eventually the stock was divided three ways, with Duane, Lee, Jr., and their mother each owning one third. A second corporation, owned in the same ratio, was also formed, so that the proprietors might maintain both a union shop and a non-union shop.

In 1970 both corporations, admittedly insolvent, were put in bankruptcy by their creditors. Lee, Jr., then went into business for himself, under the name Bill Brown Plumbing Company. He called the telephone Company and had the disputed number moved to his new business address, which was across the street from the premises to which the number had been assigned for many years. There is no contention that Lee, Jr., had been authorized by the other members of the family to take possession of the number. The elder Brown contemporaneously decided to go back into the plumbing business, from which he had retired, but he was not successful in his efforts to regain the telephone number in question. Eventually he filed this suit in chancery to have the number assigned to him. The chancellor found the equities to be in his favor and ordered the telephone company to transfer the disputed number to Mr. Brown and not to assign it to any one else without the court’s prior written permission.

As between Brown, Sr., and Brown, Jr., we agree with the chancellor’s conclusion that the superior equities lie with the father. It was he who built up the business, and the peculiar worth of the telephone number, over a period of more than 30 years. Evidently the business was a success, for it enabled Mr. Brown to support his wife and six children.

Eventually, as we have indicated, the two sons joined their father in the concern, which was then incorporated. Lee, Jr., acquired a third interest in the company. Although he testified that he received that interest because he had built up a failing business for his father, the chancellor was not required to accept that view of the matter. In fact, the business went into bankruptcy only a few years after the two sons were taken into the venture and an even shorter time after the elder Brown had retired. He did not, however, relinquish his interest entirely, for his wife continued to own a third of the stock and to draw a salary as an officer of the company. Upon the record as a whole, we are decidedly of the opinion that the chancellor was right in awarding the use of the disputed telephone number to the appellee.

There remains the appeal of the telephone company. In the trial court Lee Brown, Jr., filed no pleading questioning the chancery court’s jurisdiction over the controversy between him and his father; so we have not found it necessary to consider that question in connection with the son’s appeal. The telephone company, however, did not wholly waive the jurisdictional issue, though we do think it did so in part.

Initially the telephone company demurred to the elder Brown’s complaint in equity, on the ground that exclusive jurisdiction over the assignment of telephone numbers lies in the Arkansas Public Service Commission. However, before the demurrer was acted upon by the court, the telephone company’s attorney wrote a letter to the plaintiff’s attorney, restating the company’s jurisdictional objection but also stating that “if you will dismiss this case against the Telephone Company, we agree that we will assign FR 4-0129 to either Mr. Brown, junior or senior, upon the Court’s determination as to which of these parties is more equitably entitled to the use of such number.” Two days later, on motion of the plaintiff, the telephone company was dismissed from the case, without prejudice.

After the remaining litigants had tried the case on its merits the chancellor entered a decree which, among other things, found that “although Southwestern Bell Telephone Company has been dismissed as a party to the suit, they are a necessary party; and the court treats the pleading as amended to seek a temporary and permanent injunction” against that company. The court then went on in its decree to direct that the telephone company transfer the disputed number to Brown, Sr., and that the company be permanently enjoined “from assigning that telephone number out of the name of Lee W. Brown, Sr., to any other person or corporate entity without this court’s prior written order.” The telephone company appeals from that part of the decree which affects the company.

For the most part we do not see that the company is prejudiced by the chancellor’s obviously questionable procedure in entering a decree against a party that had been dismissed from the case. That is, the company had obtained the dismissal in return for its promise that it would assign the number to whichever Brown the court found to be equitably entitled to it. The company cannot in good faith complain of its being required to do just what it promised to do. On the other hand, the company did not agree to waive the Public Service Commission’s jurisdiction over the assignment of the telephone number in controversy for the indefinite future. Hence the decree must be modified to eliminate all provisions affecting the telephone company other than the requirement that it abide by the court’s assignment of the number to the appellee.

Modified and affirmed.


author: Lyle Brown, Justice.

text:
    Oren ROBERTSON v. STATE of Arkansas
    5710
    478 S.W. 2d 878
    Opinion delivered April 17, 1972

      Gus R. Camp, for appellant.

      Ray Thornton, Atty. Gen., by John D. Bridgeforth, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

This is an appeal under our criminal procedure rule one. Robertson was sentenced to five years in the penitentiary. Thereafter he filed a petition in the sentencing court to have the sentence set aside and requested that he be permitted to be present for a hearing on the petition. The trial court, acting under rule one (C), held that the records in the case showed conclusively that petitioner was entitled to no relief and did not order the presence of the petitioner. The single point urged on appeal is that the court erred in the failure to order appellant’s presence before the sentencing court.

In appellant’s petition to the trial court he alleged (a) that he was not advised of his constitutional rights by the arresting officer, (b) that he did not have effective assistance of counsel, and (c) that all proceedings subsequent to his arrest denied him due process of law. Under pleading (c) he said he was illegally held without bail, that he was not committed by a magistrate, and that he was tricked into entering a plea of nolo contendré when in fact he was not guilty.

Appellant is not entitled to be present when his petition for post-conviction relief can be processed under rule one (C). Grayer v. State, 242 Ark. 640, 414 S.W. 2d 870 (1967). Under (C) the trial court examines the motion alongside the records and files in the case and if it is revealed conclusively that the prisoner is entitled to no relief, that ends the matter. In the case at bar the trial court followed that procedure and disposed of the petition under rule one (C).The trial court made extensive findings from the records available and reached these conclusions:

When the plea was entered, appellant was represented by competent, employed counsel; he was fully informed ot all the facts relating to the charges against him; he was informed that he was entitled to a jury trial, which he waived; appellant counseled with his employed attorney and was fully satisfied with all services rendered; appellant replied in the negative when he was asked if he had any questions he desired to ask of court or counsel; and appellant confirmed that “he had not been coerced by anyone and that the plea he desired to enter was a voluntary plea.”

According to the record we have summarized, this appellant was given every opportunity to speak out, either in person or by employed counsel, and to raise any possible defense he had to the charges. If he had any such defenses it was incumbent that he raise them. In the face of the record made by the trial court and here summarized, appellant is not entitled at this late date to collaterally attack his sentence. Since appellant was in no position to attack the judgment, his presence naturally was not needed.

Affirmed.

Fogleman, J., not participating.


author: John A. Fogleman, Justice.

text:
    Laughter Lee EVANS v. STATE of Arkansas
    5679
    478 S.W. 2d 874
    Opinion delivered April 17, 1972

      Carpenter, Finch & McArthur, for appellant.

      Ray Thornton, Atty. Gen., by Gene O’Daniel, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Laughter Lee Evans asserts three points for reversal of his conviction of possession of stolen property. He contends that errors were committed in allowing testimony relating oral statements attributed to him, in addition to admission of his written statement, in denying his motion for verdict, and in giving an instruction to the jury regarding further consideration of the case after it reported that it had been unable to reach a verdict.

Appellant’s argument on appeal is somewhat different from his objection in the trial court to the testimony about the oral statement. In a hearing on the admissibility of appellant’s statements, the voluntary nature of the statements was conceded, and appellant’s attorney agreed that his client’s constitutional rights were protected, insofar as warnings and coercion were concerned. The objection made, after the court in a Denno hearing held the statements admissible, was that testimony about oral statements made to the officers, in addition to the written statement, should not be admitted. Appellant’s attorney, who is not representing him on appeal, contended that the admission of this testimony would violate appellant’s constitutional rights by attempts to show, by innuendo, appellant’s knowledge that the property involved, a pistol, was stolen. This attempt to engraft a constitutional “parol evidence rule” relating to written statements of accused persons upon the rules of evidence in criminal cases has been appropriately abandoned, and the attorney general was justified in not briefing this objection. In re Briefing of Criminal Cases, 234 Ark. 846, 354 S.W. 2d 740.

The contention first made here that oral statements more comprehensive than the written statement were not shown to be admissible with sufficient clarity cannot be entertained. Nash v. State, 248 Ark. 323, 451 S.W. 2d 869. However, our review of the only testimony on the subject, that of Detective Larry Starks of the Little Rock Police Department, discloses that, upon discovery from a check of police records that the pistol had been stolen, Starks advised appellant of his rights. Thereafter, Evans gave an oral statement, after which, upon the request of the officers that he do so, Evans wrote a statement in his own handwriting. The circuit judge found that appellant had been adequately warned as to his rights, and that the contents of his statements to the officers, both oral and written, were admissible. This finding, based upon uncontradicted testimony, is not erroneous.

Appellant’s second point is based upon his argument that the evidence failed to show the requisite guilty knowledge and intent on his part to constitute a violation of Ark. Stat. Ann. § 41-3938 (Repl. 1964) under which he was charged. Our review of the evidence satisfies us that a jury question was posed. Without detailing all the evidence, the following appears in the testimony:

The retail value of the pistol was $135, the wholesale price, $90. The weapon was in appellant’s possession in a vehicle driven by him on Sixth Street near the freeway in Little Rock, three months after the weapon was stolen from Farrior’s, Inc., in Little Rock, and Evans had some of the bullets for it at his home, although he contended that he took the pistol in pawn from a patron at a club of which he was part owner. In his statements to the officers, Evans said that he knew that the man he gave $40 as a loan on the pistol would never return for it, and that, while the borrower had sought only $20, Evans had told him that was not enough and gave him $40. Starks asked Evans if, by reason of paying so little for the gun, he had any idea that it might have been stolen. Evans replied that he figured it probably was.

If the jury believed that Evans made the reply attributed to him, it was justified in finding that he had guilty knowledge.

After the jury had deliberated for more than two hours, it reported to the court that an eleven to one division had existed for a considerable period of time. The trial judge, upon his own motion, then stated to the jury:

It is important that a jury reach a verdict in the trial of this case. A hung jury means a continuation of the case and a delay in the administration of justice.
Under your oath as jurors you have obligated yourselves to render a verdict in agreement with the law and evidence. In your deliberations you should weigh and discuss the evidence and make every reasonable effort to harmonize your individual views of the merits of the case.
Each of you should give due consideration to the views and opinions of the other jurors who disagree with your opinions and views. No juror should surrender his sincere beliefs in order to reach a verdict; to the contrary, the verdict should be the result of each juror’s free and voluntary opinion.
By what I have said as to the importance of the jury reaching] a verdict, I do not intend to suggest or require that you surrender your conscientious convictions, only that each of you make every sincere effort to reach a proper verdict. Therefore, I request the jury retire for further deliberations.
If there are no questions, you may return to the jury room and resume your deliberations.

The jury then deliberated for about 30 minutes and reported that a verdict had not been reached and asked instructions. Since it was after 5:00 p.m., the court dismissed the jury for the day, but directed it to resume deliberations at 9:30 the following morning. The verdict was returned after nine minutes’ deliberation on that day. Appellant contends that the instruction given amounted to a directed verdict, and was coercive in nature. We do not agree. An admonition to the jury as to its duty to return a verdict, without any expression of the court’s opinion as to the weight of the evidence, or any change in instructions previously given, or suggestion that any juror yield his individual convictions to reach a verdict is not improper. Hardin v. State, 225 Ark. 602, 284 S.W. 2d 111. Here, the circuit court clearly stated that the verdict should be the result of each juror’s free and voluntary opinion and concluded its remarks with emphasis upon the proposition that no juror should surrender his sincere beliefs in order to reach a verdict, and only suggested that each juror make a sincere effort to reach a verdict. Since a hung jury renders no decision at all, and retrials are grievously burdensome to all concerned and since some jury would have had to reach a decision at some future date, the circuit judge should be commended rather than condemned for the action taken here. We have long recognized that it is the duty of a trial judge to make plain the obligation of a jury to arrive at a verdict consistent with the facts and concurring with the individual convictions of each juror. Whitley v. State, 114 Ark. 243, 169 S.W. 952. The court did not advise the jury that there was no conflict in the testimony, or that the law was plain and simple, so that the only thing left to the jurors was embodied in their oath, as was the case in Parker v. State, 130 Ark. 234, 197 S.W. 283, relied upon by appellant. Much stronger admonitions than the one given here have been approved. See McGaha v. State, 216 Ark. 165, 224 S.W. 2d 534; Mynett v. State, 179 Ark. 1199, 18 S.W. 2d 335; Benson v. State, 149 Ark. 633, 233 S.W. 758; Mallory v. State, 141 Ark. 496, 217 S.W. 482.

Since we find no error, the judgment is affirmed.


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

text:
    Denna PLUM v. James PLUM
    5-5857
    478 S.W. 2d 882
    Opinion delivered April 17, 1972

      Darrell Johnson, for appellant.

      Carl Creekmore, for appellee.
   Conley Byrd Justice.

In a 1969 divorce decree, custody of the parties’ three children was awarded to appellant Denna Plum. The eldest child, Connie Plum, age 14, elected to remain with her father, appellee James Plum. Thereafter the mother petitioned the court to permit her to remove the two younger children, Ricky, age 854 and Tanya age 314 to Hixson, Tennessee. Appellee resisted the motion and counterclaimed for a change of custody. After a hearing and an interview with the children, the chancellor awarded Ricky’s custody to the father and apparently granted permission to remove Tanya. Denna Plum appeals.

The record shows that following the divorce, appellant and the two younger children lived in Alma until appellant’s father died. Appellant then moved to her mother’s in Fort Smith. In May of 1970, appellant went to a Licensed Practical Nurse’s school and graduated on May 21, 1971. As an LPN in Fort Smith, she earns $2.32 per hour. In Hixson, Tennessee, she has a job paying $2.76 per hour and a place to live within walking distance of a school. On cross-examination it was established that Ricky flunked the second grade after he was moved from Alma to Fort Smith.

James Plum testified that he would be denied visitation rights if appellant were permitted to take the children to Hixson, Tennessee, because of the 700 mile distance. On cross-examination it was established that he did not attend church and would not require his children to attend. On one occasion appellee went to appellant’s home to pick up the children at 5:30 p.m., not knowing that the children had been attending Vacation Bible School. When appellant informed him that he could not take the children until after 10:00 p.m. because of the Bible School’s graduation exercises, appellee inquired of Ricky if he wanted to go or stay and upon being informed that he wanted to go, appellee then took the children over appellant’s protest.

Appellant’s mother testified that she planned to live with appellant in Hixson, Tennessee, and help care for the children. On cross-examination it appeared that the mother had had a stroke from which she had recovered except for some paralysis in her hand.

We pointed out in Johnston v. Johnston, 225 Ark. 453, 283 S.W. 2d 151 (1955), that the party seeking a change of custody must assume the burden of showing such changed conditions as would justify a modification in the min- or’s interest. The burden here was upon appellee, who sought the change in custody, to show such changed conditions as would justify modification of the decree. We can find no evidence to jusitfy the modification.

On the record made, appellant is obviously entitled to take the children with her to Hixson, Tennessee. Of course appellee will be entitled to reasonable visitation rights which must be adjusted to thet the circumstances.

Reversed and remanded.

Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I dissent for the same basic reasons given for my dissent in Settle v. Meyers, 251 Ark. 532, 473 S.W. 2d 434. I do not see how the majority can say that the findings of the chancellor in this case are clearly against the preponderance of the evidence. The decree contains the following findings:

That it would be in the best interest and welfare of the minor children that the custody of sixteen (16) year . old daughter, Connie Plum, and the eight (8) year old son, Ricky Plum, be placed with their father, James Plum, subject to the right of reasonable visitation being reserved to the plaintiff, Denna Plum, at any and all reasonable times, including one (1) week of the school vacation, during the Christmas Holidays and the summer months, commencing one (1) week after the end of school and continuing until one (1) week prior to commencement of school for the next school term.

The court’s letter opinion on which the decree was based contained the following:

After having had an opportunity to see, hear and observe the parties and their witnesses testify in this matter, and to have had an opportunity to interview the oldest child, a sixteen year old daughter, and the middle child, an eight year old son, and to review the pleadings, testimony and evidence in this case, it is the Court’s Opinion that it would be in the best interest and welfare of the minor children that the custody of the sixteen year old daughter and the eight year old son be placed with their father, the Defendant James Plum ***. In so doing, the Court is considering the request and desires of the sixteen year old daughter and, although there is a similar request of the eight year old son, the Court believes that in his best interest that he have the stability of the homelife with his father and grandparents and older sister, along with the encouragement thereof to stabilize his progress in school and relieve him of the apparent nervousness and emotional trauma created by the conflict resulting from the divorce and the apprehension of being removed from a known environment.

In the original decree the chancellor approved the arrangement by which the eldest child, a 14-year-old daughter, was allowed to remain with her father and paternal grandparents in accordance with her expressed desires, and with the consent of her mother, appellant here. He later awarded the custody of this child to her father, the appellee, and restrained the parties from removing any of the children from the jurisdiction of the court without court approval. Appellant did not ask that she be permitted to take this eldest child with her. The younger children are now nine and four years of age. The nine-year-old boy, while in the custody of his mother and maternal grandmother, failed the second grade, even though his mother and a neighbor each gave him as much help as she could. No real reason appears for appellant’s not objecting to the older daughter living with her father and grandfather, but objecting to the boy’s doing so. The mother and the 83-year-old maternal grandmother plan to take the boy and younger daughter to live in a two-bedroom apartment. While appellant is at work, this grandmother who has suffered a stroke is to be the custodian of this nine-year-old boy as well as his younger sister.

The father testified that he would find visitation with his children almost impossible if they were 675 miles away, as they will be. He lives with his parents in a two-bedroom house to which two bedrooms are being added. His mother is 61 and father is 65. Neither is now employed. The chancellor saw and observed both grandmothers when they testified. One of these will have as much to do with the care of this boy as the parent having his custody.

The change of residence of the mother and the boy’s failure in school are certainly changes of circumstances warranting the court’s action to review the situation. If this concerned mother is perfectly willing for the father and his parents to have the custody of a teen-age daughter, I cannot see how it would be objectionable for them to have a boy, who may need a father as much as he needs a mother. The matter of divided custody should not be of any significance. Custody is already divided. Who is to say that a nine-year-old boy should be with his four-year-old sister, rather than his 16-year-old sister? There is evidence that all the children get along well together.

I humbly submit that there was ample evidence to support a finding of such a change of circumstances as would justify a change in Ricky’s custody. I find nothing to sustain a holding that the chancellor, who had considerable opportunity to observe all the parties in the three hearings before him, held contrary to the preponderance of evidence.

I think that our opinion in Holt v. Taylor, 242 Ark. 292, 413 S.W. 2d 52, was well reasoned and sound, when written. I do not think it has become obsolete, yet I feel that its teachings are being ignored. Even as late as Standridge v. Standridge, 248 Ark. 392, 451 S.W. 2d 726, we emphasized our unwillingness to substitute our judgment for the chancellor’s upon the basis of our mere reading of the printed page contrasted with his infinitely better opportunity for reaching a wise decision. Because I am still unwilling to do so, I would affirm the decree.

I am authorized to state that Mr. Justice Jones joins in this dissent.


author: Frank Holt, Justice. Conley Byrd, Justice,

text:
    Leslie David HILL v. STATE of Arkansas
    5696
    479 S.W. 2d 234
    Opinion delivered April 17, 1972
    [Rehearing Denied May 22, 1972]

      W. B. Howard and Jack Segars, for appellant.

      Ray Thornton, Atty. Gen., by John D. Bridgeforth, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Upon a retrial, following our reversal in Hill v. State, 249 Ark. 42, 458 S.W. 2d 45 (1970), the appellant was convicted by a jury of first degree murder and the penalty assessed at life imprisonment in the state penitentiary. For reversal of that judgment the sole issue on this appeal is appellant’s contention that the court erred in giving the following instruction to the jury over his specific objections and exceptions.

“Certain probate court records, orders and other documents have been introduced into evidence in this case. When insanity is relied on as a defense, an adjudication declaring the defendant to be an incompetent or insane person may go to the jury as evidence on that issue. Such adjudication is not conclusive of the insanity of the defendant, but may be considered by you along with all the other evidence bearing on the question of the defendant’s sanity or insanity.”

Apellant asserts that in this instruction the court erroneously commented upon the conclusive effect or weight to be attached to appellant’s previous adjudication as an incompetent (this adjudication has existed since a 1947 probate court proceeding). Appellant cites to us Article 7, § 25 of the Constitution of Arkansas of 1874 which provides: “Judges shall not charge juries with regard to matters of fact, but shall declare the law,

The appellee-state, however, contends that it is a proper instruction, citing Poole v. State, 212 Ark. 746, 207 S.W. 2d 725 (1948) upon which the instruction was based. There we held that a previous adjudication of insanity was admissible in evidence, although not conclusive on that disputed issue. Obviously, in the case at bar, the trial court was giving the jury a guideline as to the law as enunciated in Poole v. State, supra. In doing so, the trial court did not take from the jury its right to consider the previous adjudication in determining the disputed factual issue of insanity; in fact, the trial court told the jury that the previous adjudication could be considered “along with all the other evidence bearing on the question of the appellant’s sanity or insanity.” As we construe this instruction, the court merely told the jury that, as a matter of law, the existing adjudication of insanity was not conclusive or binding upon the jury on that issue. Cf. Petty v. State, 245 Ark. 808, 434 S.W. 2d 602 (1968); McDonald v. State, 165 Ark. 411, 264 S.W. 961 (1924); Hogue v. State, 93 Ark. 316, 130 S.W. 167 (1910).

In the case at bar the jury was not told that it could not give conclusive effect to the prior adjudication of appellant’s incompetency when considered with other evidence bearing on the issue of sanity. In fact, the negative wording of this instruction as to the conclusive effect of the sanity adjudication comports substantially with our Arkansas Model Jury Instructions (Civil) 601 and 903. Those instructions, in part, are negatively worded; each provides that a violation of a statute or ordinance, “although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.” (emphasis added)

Furthermore, by Instruction 18, the court told the jury that: “In the course of this trial the Court has made rulings in the conduct of the trial and on the admission of evidence. In so doing the Court has not expressed or intimáted in any way the weight or credit to be given to evidence or testimony admitted during the trial, nor has the Court indicated in any way the conclusions to be returned by you in this case.” Also, the court told the jury, in the next instruction, that it should consider “these instructions as a whole and not any part to the exclusion of the others.”

Although, in the case at bar, the obvious guideline intended by the instruction in its negative terms, as to the conclusive effect of a previous adjudication of incompetency, could be achieved by less objectionable language, we cannot say that the instruction constituted prejudicial or reversible error.

Affirmed.

Fogleman, J., not participating.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. Article 7 § 23 of our Constitution provides:

“Judges shall not charge juries with regard to matters of fact, but shall declare the law, and in jury trials shall reduce their charge or instructions to writing on the request of either party.”
In the case before us the trial court instructed the jury:
.. When insanity is relied on as a defense, an adjudication declaring the defendant to be incompetent or insane person may go to the jury as evidence on that issue. Such adjudication is not conclusive of the insanity of the defendant, but may be considered by you along with all the other evidence... .”

In Field v. Koonce, 178 Ark. 862, 12 S.W. 2d 772 (1929), and Poole v. State, 212 Ark. 746, 207 S.W. 2d 725 (1948), it was pointed out that when one is adjudged incompetent there is a rebuttable presumption of the continuance of that condition. In Poole v. State, we said:

“In criminal cases the record of inquisitions of lunacy or insanity is competent to go to the jury as evidence on that issue, but the weight of such evidence is for the jury.” (Emphasis mine).

Here the trial court did not leave to the jury the weight to be applied to Hill’s adjudications of incompetency but instead told them that such adjudication was not conclusive. Under decisions such as Field, v. Koonce, supra, and Poole v. State, supra, the jury could have found that the adjudication was conclusive of the issue. The trial court’s charge that such an adjudication was not conclusive was nothing more nor less than a comment on an issue of fact contrary to Art. 7 § 23 of the Constitution of Arkansas.

For the reasons stated, I respectfully dissent.


text:
    N. B. YARBROUGH Jr. et al v. PRENTICE LEE TRACTOR COMPANY, Inc. et al
    5-5853
    479 S.W. 2d 549
    Opinion delivered April 24, 1972
    [Rehearing denied May 29, 1972]

      Don Gillaspie, for appellants.

      Richard H. Mays and Michael R. Landers, for appellees.
   Carleton Harris, Chief Justice.

The question in this litigation is whether Arkansas law or Louisiana law applies to certain transactions between appellants, N. B. Yarbrough, N. B. Yarbrough Jr., and Raymond Yarbrough, of Union County Arkansas, and Prentice Lee Tractor Company, Inc., and Ouachita National Bank of Ouachita Parish, Louisiana. Appellants are loggers. In 1969, certain logging equipment, specifically a Massey - Ferguson 316 5D tractor, one new Beloit 136 loader mounted on a used 1965 Chevrolet truck, and one 440 Log Hog tractor with winch, were purchased from Prentice Lee Tractor Company and the notes and chattel mortgages were assigned to appellee, Ouachita National Bank of Monroe, Louisiana. Three suits charging that the contracts were usurious were filed in the Chancery Court of Union County by appellants in August 1970. In November, the bank filed two suits in the Circuit Court of Union County, one against N. B. Yarbrough, Jr., and one against Raymond Yarbrough, alleging nonpayment, and seeking judgments on the notes and mortgages held by it. The pleadings in the circuit court suit were subsequently transferred to chancery, and after the filing of various pleadings and motions by the parties, the cases were consolidated for trial. The matter was heard on June 23, and on July 20, the court entered its decree finding that the sale of each piece of equipment heretofore mentioned should be construed and governed by the law of the State of Louisiana. Judgment was entered in favor of appellees for the amounts due under the notes, and in compliance with the chattel mortgages, the property was ordered sold if the judgments were not paid. Complaints of the appellants were denied and dismissed. From the decree entered, appellants bring this appeal. For reversal, it is first asserted that appellees did not give notice that the law of Louisiana would be relied upon, and appellants should accordingly prevail, and it is then contended that, on the merits, the court should have held that Arkansas law was applicable.

The first contention for reversal is based upon Ark. Stat. Ann. § 27-2504 (Supp. 1971) which provides:

“A party who intends to raise an issue concerning the law of any jurisdiction or governmental unit thereof outside this State shall give notice in his pleadings or other reasonable written notice.”

This provision perhaps was not strictly complied with. However, we do not feel that there is merit in this contention. In Deposit Guaranty v. River Valley, 247 Ark. 226, 444 S. W. 2d 880, this court, referring to that statute, said:

“We have considered that statute in two earlier cases. In the Hruska case, supra, the plaintiffs relied upon the law of Missouri in their pleadings, but the defendant failed to plead its contention that the law of Louisiana was controlling. We held that in that situation the trial court correctly submitted the case to the jury under Missouri law. In the other case, American Aviation v. Aviation Ins. Managers, 244 Ark. 829, 427 S.W. 2d 544 (1968), we cited the statute in a footnote, without discussion, in holding the Arkansas law to be applicable.
Neither of those cases laid down a rigid rule requiring a party to assert his reliance upon foreign law at any particular point in the litigation. In fact, such an interpretation would not be in harmony with the purpose of the Uniform Act, which was to make it easier — not harder — for a party to rely upon the law of another jurisdiction. The Commissioners point out in their note to §3 of the Act that it is intended to change the rule prevailing in many states, that a court may not even consider foreign law unless it has been pleaded. The statute substitutes a rule of reasonable notice only. On this point the Commissioners went on to say: ‘Any reasonable written notice will suffice. . .The court must exercise discretion in determining the proper timing of the notice in the light of the requirements of the case and fairness to the parties. The section does not attempt to prohibit the raising of an issue of foreign law after any particular point in the litigation. In exceptional situations, the issues may not become apparent until during or even after the trial, and, in appropriate cases, the notice may be given at that time.’ 9B U. L. A. 329 (1966).”

While, as stated, there is no notice either separately, or in the pleadings that “We intend to assert that Louisiana law applies”, this inference is certainly found in appellees’ complaints. For instance, in the complaint against N. B. Yarbrough, Jr., a portion of the mortgage is copied and sets out that if the mortgagor defaults, the note shall be immediately due and payable in its entirety and that the property may be sold to the highest bidder “all appraisement laws being hereby waived, more particularly the three days’ notice provided by Article 735 of the Code of Practice, notice of seizure by sheriff, constable or justice of the peace, and the three days’ delay, provided by Article 655 of the Code of Practice”. The suit against Raymond Yarbrough contains even stronger language. It purports to copy a portion of the language which provides that the buyer “hereby expressly waives the benefit of appraisement and all laws conferring to same and the three (3) day notice and delay accorded by Article 2639 of the Louisiana Code of Civil Procedure, as well as notice of seizure by the Sheriff, Constable or Justice of the Peace, and the three (3) days’ notice and delay prescribed by Article 2331 of the Louisiana Code of Civil Procedure and the benefits of Article 2331, 2722, 2723, and 2724 of the Louisiana Code of Civil Procedure.”

Now, actually, we do not find this language in the mortgage; rather, the same language quoted in the N. B. Yarbrough, Jr. mortgage is used, but in either event (whether or not the provisions cited are applicable), it would appear that appellants certainly should have been alerted that the contention that Louisiana law controlled was being asserted. Not only that, but the trial record reflects that the attorneys for both sides consistently interrogated the parties about such matters as where the contracts were negotiated, where they were executed, where the property was to be used, etc. Certainly, the court understood that the issue was raised for it held in its decree that Louisiana law did apply. Yet, at no time during the trial, nor while the case was pending for decision — nor after the case was decided, did appellants ever raise to the trial court any question about having had no notice that appellees were relying upon Louisiana law. It thus definitely appears that they were aware of this issue, and we find no merit in the argument now presented.

As to the contracts between the parties, the evidence, in some instances is in conflict. We definitely know that the buyers were residents of Arkansas; that the sellers were residents of Louisiana; that the notes were assigned to a Louisiana bank; that the installment payments were to be made in Louisiana, and that the Log Hog tractor and Beloit loader were used in Arkansas. Testimony was offered that the Massey-Ferguson tractor was used in both states. It is also undisputed that the first two machines were delivered in Arkansas, but the testimony is in conflict as to the last mentioned tractor. While N. B. Yarbrough, Sr. testified that he executed all agreements in Arkansas, he also subsequently stated that the loader was purchased “down there”, definitely indicating the sale to have occurred in Louisiana. One interesting fact is that appellants stated that all three contracts were signed by them in Arkansas, and that the instruments signed were in blank at the time. Yet, all had been filled in and executed by Prentice Lee, which would be an indication that these agreements were finally executed in Louisiana. On the other hand, Lee testified that he signed the contracts for the Beloit loader and the Log Hog tractor in Arkansas and that the instruments had been completed at that time. The record contains many similar inconsistencies and in several instances, the parties did not seem at all sure of their facts. There is no particular act that would establish one state’s contracts as being more significant than the other; there are however general principles which come into play. In Cooper v. Cherokee Village Development Co., Inc., 236 Ark. 37, 364 S.W. 2d 158, this court said:

“This court has consistently inclined toward applying the law of the state that will make the contract valid, rather than void. Whitlock v. Cohn, 72 Ark. 83 , 80 S.W. 141; Dupree v. Virgil R. Coss Mortgage Co., supra; American Farm Mtg. Co. v. Ingraham, supra; Wilson-Ward Co. v. Walker, 125 Ark. 404, 188 S.W. 1184.
This is not a case of a cloak for usury or where the parties to a wholly Arkansas contract have sought to avoid the Arkansas usury law by having the validity of the contract determined by the law of a state having no substantial connection with the contract.”

Here too, we do not have a situation where the validity of the contract was determined by the law of a state having no substantial connection with such contract.

It is true that in Hutchingson v. Republic Finance Co., Inc., 236 Ark. 832, 370 S.W. 2d 185, referring to Cooper, we said:

“This statement is only applicable where ostensibly the law of either state could apply, or where there is doubt as to which properly does apply.”

Appellants principally rely upon this last case, but the circumstances are far different. In Hutchingson the contract was solicited, negotiated, and entered into in this state and undisputedly, both Huchingson and the agent of Republic Finance Co., Inc., an Iowa Company, executed the contract here. All of the work under the contract was performed in Arkansas. We pointed out that the only circumstance favoring the company was a provision that the monthly payments should be sent to Des Mpines. The facts in that case are far different frpm those here where the place of execution of the instruments by all parties is in dispute, and where it is clearly shown that a substantial part of the negotiations for the sale of this equipment took place in Louisiana.

Of equal, or greater importance, is the fact that the parties engaged in business with each other for a long number of years, in fact, since 1955, and during that period, eight or ten machines have been purchased by Yarbrough, Sr.; according to the evidence, the company had probably sold 25. tractors to all the Yarbroughs together. The proof thus reflects innumerable transactions between the parties including the acquiring of parts, and the repair of equipment. N. B. Yarbrough, Sr. said these various transactions were all handled satisfactorily and in an amicable manner. We find no specific evidence that these previous contracts were all similar to the ones here at issue, but it is difficult to conceive that the parties entered into these prior contracts with the intention that they be construed under the law of Arkansas, for, if that were the case, cancellation would likely have been previously sought. The course of extended dealings between the parties, to say the least, justifies an inference that the intention was to subject the agreements to Louisiana law.

At any rate, we certainly cannot say that the findings of the chancellor were against the preponderance of the evidence.

Affirmed.

      Judgment was rendered against Raymond Yarbrough in the amount of $9,086.33 together with judgment for attorney’s fees of 10% and judgment was rendered against N. B. Yarbrough, Senior and Junior, in the amount of $6,759.60 with attorney’s fees of 10%.


author: Carleton Harris, Chief Justice. Conley Byrd, Justice,

text:
    HYDE VENDING CO., Inc. v. WAYNE POULTRY CO.
    5-5859
    479 S.W. 2d 250
    Opinion delivered April 24, 1972

      Williams if Gardner, for appellant.

      James K. Young, for appellee.
   Carleton Harris, Chief Justice.

In February 1967, Hyde Vending Company, hereafter called Hyde, appellant herein, and Wayne Poultry Company, a Division of Allied Mills, Inc., appellee herein, entered into a contract by which Hyde agreed to furnish vending machines for the dipensing of cold drinks, soup», pastries, gum, cigarettes, coffee, sandwiches, candy, chips, and other merchandise of a similar nature which might be desired and used by the employees of Wayne. Appellant agreed to purchase, install, service the machines, keeping them in good working order, and maintain the merchandise in good quality. Appellee agreed only to provide pace within its plant of sufficient size to accommodate its employees, Wayne also agreeing to place any necessary tables and chairs within the pace. Hyde agreed to pay to Wayne on the tenth day of each month 15% of the previous month’s gross sales, except cold drinks, for which it would pay 25% of the gross sales. The contract was effective for a period of four years with the right on the part of the appellant to renew for an additional period of four years by first giving Wayne written notice of its intention to renew not less than sixty days prior to the end of the first four year period. As to termination in event of a breach of the contract, the instrument provided that if Hyde failed to furnish quality merchandise at competitive prices, to maintain clean and sanitary conditions, or fail to perform any of the other obligations imposed on it, then Wayne, by giving fifteen days nonce to Hyde to bring the performance up to the standards required, could, in the event of a failure to do so by appellan t, terminate the contract by giving ninety days notice in writing of its intention to do so.

Under this agreement, the parties entered upon performance of their obligations and no complaints were lodged by either party until October of 1970, when Hyde was notified by the manager of Wayne that the machines were not being prcperly serviced and maintained. Specifically, it was asserted that the ice dispenser and the coke machine did not prcperly operate, the coffee machine was inoperative, the machines would frequently fail to dipense merchandise but would not return the coins, and some items of merchandise, principally pastries, were often stale. On January 22, 1971, Wayne notified Hyde by letter that although some improvement had been made, the service still was not satisfactory and appellant should remove its machines by February 28. It was apparently decided that proper notice had not been given, and Hyde mailed another letter on March 29 advising that the time for removing the' machines was being extended to April 30, 1971. In the meantime, just prior to the February expiration date, Hyde had instituted suit in the Yell County Chancery Court contending that it was not in violation of the terms of the agreement, and an injunction was sought restraining appellee from evicting appellant. After the granting of a temporary injunction, the matter was set for hearing on the question of whether a permanent injunction should be granted, and proceeded to trial for the taking of testimony. Subsequent to the conclusion of the evidence, the court rendered its opinion (August 1971) and found as follows:

“The evidence is conflicting as to whether Plaintiff has breached the contract by failing to properly service and maintain the machines, keep them clean and sanitary and furnish good quality merchandise. No doubt some of the machines did not operate properly from time to time. Likewise, on occasion stale pastries were being vended. However, the latter may well have been caused in hot weather by the fact that the lunchroom where the machines were located was not air conditioned. As to the former, it is within the common knowledge of everyone that anything mechanical often fails to operate as designed. Considering the evidence as a whole, including the interest or disinterest of the various witnesses, the court finds that a preponderance of the evidence shows that Plaintiff was not in violation of the agreement and that Plaintiff’s employees exercised ordinary and reasonable care with reject to maintenance and servicing of the machines and the condition and quality of merchandise vended.”
However, the court further stated:
“A decree of specific performance against Defendant would require the court to exercise continuing control until the expiration of the contract in 1975 and therefore such decree would not be capable of present performance by ordinary process of the court.”

The court then cited cases to the effect that specific performance will not be decreed “where the order would not be capable of present performance by ordinary process of the court”, and also cited cases to the effect that specific performance will not be decreed if there is an adequate remedy at law. Upon this basis, the court dissolved the temporary injunction and dismissed appellant’s complaint for want of equity. From the decree dismissing the complaint, appellant brings this appeal.

Let is be said at the outset that we completely agree with the trial court’s finding that the preponderance of the evidence established that Hyde was not in violation of the agreement, and that appellant’s employees exercised ordinary and reasonable care with respect to maintenance and servicing of the machines and the condition and quality of merchandise vended. Since we agree that this finding was correct, there is no need to detail the evidence. The most impressive proof offered by either side came from two witnesses who might be termed disinterested. Dr. K. B. Middleton, a veterinarian employed by the United States Department of Agriculture and who was stationed at Wayne Poultry Company (being the inspector charged with the responsibility for the quality of products produced at that plant and the approval of the equipment), testified that he had never eaten doughnuts that were not edible, nor a bad candy bar, had never had difficulty with a cold drink machine, and that he had never heard employees say anything against the quality of the food. He stated that there had been some malfunction of the vending machines, but not often. This testimony was concurred in by Allison Farmer, a Federal Food Injector employed by the Department of Agriculture, who was also assigned to the Wayne Poultry Processing Plant for a part of the time in question. With our finding that the court was correct in ruling that Hyde had not breached the contract, we are faced only with the question of whether appellant was entitled to the relief sought, i.e., a restraining order.

We do not think the cases relied upon by the court are controlling in the case before us. Actually, in the instant litigation, we do not agree that appellant’s complaint, even from a negative standpoint, constitutes a request for specific performance. From an affirmative standpoint, the complaint only asks that appellee be restrained from evicting or requiring appellant to move its vending machines located in the Wayne Poultry Processing Plant. The complaint does not ask that appellee be affirmatively required to do anything. The contract itself contains seven paragraphs relating to the duties of the parties under the agreement. Six of these paragraphs relate to duties imposed upon Hyde, the appellant, and only one imposes any duties upon appellee. This is item four which provides “Sponsor will provide pace with its plants of sufficient size to accommodate its employees and if desirable tables and chairs for the convenience of employees”. Proof upon the part of appellant reflected the figure of $63,627.10 as the gross income from the commencement of the contract to the date of trial, Mr. Hyde stating that he considered that 10% of the gross sales could be applied to the purchase price of the machines; these cost $11,850.84. Mr. Hyde also testified that it was only very recently that the operation had “started picking up”.

As previously pointed out, the court found that a decree of specific performance would require it to exercise continuing control until the expiration of the contract in 1975 and that the decree would accordingly not be capable of performance by ordinary process of the court. It has already been stated that we do not agree that this complaint sought specific performance, but even so, enforcement of the relief sought would not be difficult. This is not a case wherein the appellee is called upon to comply with various features of a complicated contract, for instance, to maintain a certain number of employees (in order to have a volume to make the business profitable); to the contrary, appellee is only required under the agreement to furnish pace. This certainly would not call for constant supervision from the court for a violation could be punished by contempt proceedings. In Montgomery County Canning Co. v. Bates, 211 Ark. 930, 203 S.W. 2d 195, citizens of Montgomery County who were stockholders in the Montgomery County Canning Company instituted a suit in equity to enjoin appellants from dismantling or removing a canning plant from Montgomery County and asked pecific performance of an agreement by the company to continue operation of a canning plant at Mt. Ida. The conpany filed a motion to dismiss the complaint, alleging that it sought pecific performance of an executory contract, and that the chancery court was without jurisdiction; that the relief sought could not be compelled by the ordinary processes of the court. The trial court held with that contention but this court, discussing some of the cases relied upon by appellee in the case now before us disagreed, stating:

“The rule announced in the Leonard case, supra, was reaffirmed in later decisions. Caldwell v. Donaghey, 108 Ark. 60, 156 S.W. 839, 45 L.R.A., N.S. 721, Ann. Cas. 1915 B, 133; Nakdimen v. Atkinson Imp. Co., 149 Ark. 448, 233 S.W. 694. Under this rule appellants could not be required to continue operation of the canning plant at Mt. Ida by a decree of pecific performance, but it does not necessarily follow that appellees would be thereby precluded from injunctive relief to restrain an attempted breach of the contract by the dismantling and removal of the plant. Warmack v. Major Stave Co., 132 Ark. 173, 200 S.W. 799. A contract cannot be rescinded merely because it is of such a character that pecific performance cannot be demanded. 17 C.J.S., Contracts, § 417. In 28 Am. Jur., Injunctions, p. 273, it is said: 'It was formerly thought that an injunction would not be granted to restrain the breach of any contract, unless the contract was of a character that the court could specifically enforce. But the fair result of the authorities may be said to be that where the case is one in which the negative remedy by injunction will do substantial justice between the parties by compelling the defendant to carry out his contract or lose all benefit of the breach, and the remedy at law is inadequate, and there is no reason or policy against it, the court will interfere to restrain conduct which is contrary to the contract, although it may be unable to enforce specific performance of it.’ The case of Pitcock v. State, 91 Ark. 527, 121 S.W. 742, 134 Am. St. Rep. 88, is cited in support of the textwriter. If the complaint in the case at bar stated a good cause of action for injunctive relief, the chancellor erred in dismissing the suit even though the court was without jurisdiction to grant specific performance of the contract.”

It would thus appear that the chancellor, in the instant litigation, was in error in denying the injunction because he felt that adequate relief could not be afforded. Be that as it may, we reiterate that specific performance was not prayed for in the complaint. That pleading avers that appellant has complied with its agreement, and only asks that appellee be restrained from evicting Hyde from the premises.

Nor do we agree that there was an adequate remedy at law. According to the evidence, these machines were purchased particularly for the Wayne plant. Though he operates in four other processing plants, machines are already in use in those locations according to Mr. Hyde and he stated that he had no other locations in which to place the Wayne machines. Of course, if evicted from the premises, Mr. Hyde still has his machines and he accordingly could not recover damages for them; still, they are of no immediate benefit to him. The witness said that the first several years under the contract were spent in developing this vending business into a profitable operation, and he testified that the operation was just beginning, in January, 1971, to become profitable. It is argued by Hyde that the only way that appellant can recoup its investment and earn profits envisioned at the time the contract was entered into, is by fulfillment of the contractual agreement. One thing is definite, viz, any attempt at establishing damages would have to be speculative, for profits would depend upon a number of factors, for one, the number of people who would be employed at the plant for the next four years, which would certainly vary, depending upon the success of the enterprise, the amount of expenditure that would be necessary to keep the equipment in operating condition for the next several years, the prices that would be charged for the items, and competition from third parties who might locate near the plant. Numerous other situations or conditions could arise which would have a profound effect upon the making of a profit. Our feelings are expressed by the language appearing in Montgomery County Canning Co. v. Bates, supra, where this court, in disposing of the same argument, said:

“It is true that equity will not restrain a breach of contract where the remedy at law is adequate and complete. McDaniel v. Orner, 91 Ark. 171, 120 S.W. 829. It appears from the complaint in the instant case that the parties affected by a breach of the contract are numerous so that redress at law would require a multiplicity of suits. It further appears that it would be difficult to accurately measure pecuniary damages that appellees might suffer as a result of the breach of the contract by appellants. * * * Under these circumstances, we are unwilling to say the remedy of law is adequate.”

Summarizing, on the facts before us, there has been no breach of the contract by appellant, and appellee is not entitled to terminate the agreement. To the contrary, as found by the chancellor, the record supports appellant’s position that it has discharged the obligations incumbent upon it. Appellant has not sought to require appellee to perform affirmative acts necessary to carry out the agreement; it has only said that it has not violated its obligation, and it only asks that appellee be restrained from violating its obligation. It is entitled to that relief. Of course, we are only passing upon the record before us, and there is nothing to prevent appellee from invoking its right to cancellation if, in the future, appellant does not perform as required, and such fact is established.

It follows from what has been said that the decree should be reversed, and the cause remanded for the entry of a decree not inconsistent with this opinion.

It is so ordered.

George Rose Smith and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. This action by Hyde vending Co., Inc., against Wayne Poultry Co., is nothing more nor less than an action for specific performance of a contract for service. The Chancellor found as a matter of fact that the Hyde Vending Co., Inc., had an adequate remedy at law. I agree with the Chancellor. Furthermore, I cannot distinguish the specific performance here sought from that which was denied in Paving Improvement Dist. No. 105 of Pine Bluff v. Wright, 181 Ark. 919, 28 S.W. 2d 1062 (1930). In that case we said:

“. . .This is a suit to compel specific performance of the contract employing appellee as engineer, and the remedy at law is complete and adequate, and for that reason a court of equity has no jurisdiction. . .”.

By reversing the Chancellor here, we deny appellee its right to a jury trial upon the pivotal issue of breach or performance of the contract. While there is evidence in the record to support the Chancellor’s finding that appellant did not breach its contract, I also find credible evidence in the record from which a jury could reach a different conclusion.

For the reasons stated, I respectfully dissent.

George Rose Smith and Byrd, JJ., dissent.

      Such a notice was timely given.

        Orr v. Orr, 206 Ark. 844, 177 S.W. 2d 915; McDaniel v. Orner, 91 Ark. 171, 120 S.W. 829; Hall v. Milham, 225 Ark. 597, 284 S.W. 2d 108; Leonard v. Board of Directors of Plum Bayou Levee District, 79 Ark. 42, 94 S.W. 922, the first two relating to the fact that specific performance will not be decreed if there is an adequate remedy at law and the last two relating to the fact that specific performance will not be decreed where the order would not be capable of present performance by ordinary process of the court.

       It is not entirely clear whether this amount was to be applied to the purchase price of the machines or whether a portion was for maintanance or repair of the machines.


text:
    CITY OF NORTH LITTLE ROCK et al v. Carmen LINN
    5-5840
    479 S.W. 2d 236
    Opinion delivered April 24, 1972
    [Rehearing Denied May 22, 1972.]

      Paul F. Henson, for appellants.

      Carpenter, Finch & McArthur, for appellee.
   George Rose Smith, Justice.

This zoning dilute involves a lot in North Little Rock owned by one of the appellants, O. W. Nichols. On April 26, 1971, the city council adopted an ordinance changing the lot from R-l, a one-family residential classification, to R-4, a multiunit apartment classification. The appellee, a neighboring homeowner, then brought this suit to have the ordinance declared void. The chancellor set aside the ordinance on the ground that the decree in an earlier suit between the city and Nichols was res judicata.

In 1967 the city planning commission recommended the same change that the appellee is complaining of now, but the city council refused to adept an ordinance putting that recommendation into effect. Nichols, the landowner, brought a suit against the city to have the city’s refusal declared to be an arbitrary and capricious action. After a trial the chancellor entered a decree dismissing the complaint for want of equity.

Here the court was mistaken in holding the former decree to be res judicata. A city council, in the enactment of a zoning ordinance, acts legislatively rather than judicially. Wenderoth v. City of Ft. Smith, 251 Ark. 342, 472 S.W. 2d 74 (1971). Legislative action is subject to reconsideration; for one legislative body cannot bind its successors by irrepealable enactments. So as to zoning: “The power of a municipal legislative body to amend the zoning regulations is legislative in character. Therefore, it is not exhausted when it has been used once. Rather, a legislative body can reconsider its passage or rejection of a proposed amendment. Thus a zoning amendment may be valid although it was rejected by the same legislative body on an earlier occasion. . .It is a matter peculiarly within the discretion of the legislature, and that body is free to change its mind without a demonstration that its earlier decision was demonstrably wrong, or that circumstances have changed since the earlier action.” Anderson, American Laws of Zoning, § 4.28 (1st ed., 1968). Cases, to the same effect include Corsino v. Grover, 148 Conn. 299, 170 A. 2d 267 (1961); and Johnson v. Lagrew, 447 S.W. 2d 98 (Ky. App., 1969). Thus the council’s refusal to amend the ordinance in the first instance did not prevent it from later adopting such an amendment.

Nor did the first decree crystallize the status of the lot forever, under the doctrine of res judicata. That decree merely announced a negative finding, that the council’s refusal to change the lot’s classification was not arbitrary or capricious. It does not follow, however, that the council’s later decision to change the classification is necessarily arbitrary and capricious; for the pertinent factors may be so evenly balanced that a legislative determination either way could not be said to be unreasonable. Hence the first decree is not res judicata in the case at bar, for the issues are not the same. Risser v. City of Little Rock, 225 Ark. 318, 281 S.W. 2d 949 (1955), cert. den. 350 U.S. 965 (1956).

On the merits we cannot say, on trial de novo, that the council’s action in changing the classification of the lot is shown by the weight of the evidence to be arbitrary or capricious. City of West Helena v. Davidson, 250 Ark. 257, 464 S.W. 2d 581 (1971). The appellee and his witnesses testified that the proposed construction of a two-story twelve-unit apartment on the lot in controversy would diminish the value of the houses on the opposite half of the block. The extent of the diminution in value is not stated.

On the other hand, there is much testimony tending to sustain the council’s decision. The apartment house will face Hickory Street, a cul-de-sac that is zoned R-4 on the side opposite the lot in question. On that side of the street there are now no dwelling houses; instead, there are apartment houses only. Witnesses testified that they would be unwilling to build a single-unit residence on Nichols’ lot, because of the apartments across the street. The block slopes, the lot in question being 21 to 24 feet lower than the site of the appellee’s home and that of his neighbors. A planner testified that it is better for a change in zoning classification to occur along the rear lot line, where the structures face in opposite directions, than along a street, where the structures face each other. There is also testimony contradicting the appellee’s proof that the value of his property will be lessened by the construction of the apartment house. Upon the record as a whole we conclude that the appellee failed to sustain his burden of proving by a preponderance of the evidence that the council’s action in reclassifying the lot was arbitrary or capricious.

Reversed and dismissed.