author: Ernie E. Wright, Chief Judge.

text:
    AFFILIATED LAUNDRIES, LTD., A Partnership d/b/a APARTMENT LAUNDRIES v. Tommy KEETON et al d/b/a FRENCH VILLAGE APARTMENTS and CORONADO PROPERTIES, LTD.
    CA 80-232
    606 S.W. 2d 370
    Court of Appeals of Arkansas
    Opinion delivered October 22, 1980

      Shaw & Ledbetter, for appellant.

      Pryor, Robinson, Taylor & Barry, for appellees.
   Ernie E. Wright, Chief Judge.

Appellant filed action seeking an injunction prohibiting appellee from removing appellant’s laundry equipment from the laundry room at French Village Apartments owned by appellees. Appellant had a seven year lease contract with the preceding owner of the apartments. At the conclusion of trial on the merits the chancellor dismissed appellant’s complaint. Thereafter, the chancellor granted appellant’s motion for injunctive relief pending appeal. Appellant brings this appeal from the decree denying permanent injunctive relief, and appellees have cross appealed from the order entered subsequent to the decree enjoining removal of appellant’s laundry equipment from the apartment complex until the issues raised on appeal have been determined. The issue on direct appeal is whether appellees had sufficient constructive notice of appellant’s lease to cause them to be bound by the lease.

In October, 1977, appellant entered into a seven year written license/lease contract, with a conditional renewal clause, with French Village Apartments, a limited partnership, to lease the laundry room in the French Village Apartments, and appellant was given the exclusive right to maintain coin operated laundry services in the laundry room. The contract contained a clause providing the agreement is non-cancellable during the lease term, and that the owner of the premises, in the event of sale of the property, would notify any successor owner of the licensee’s rights under the agreement. The agreement required appellant to pay monthly to the owner of the premises 50% of the gross receipts from the laundry equipment. After the execution of the lease appellant installed new laundry equipment in the laundry room of the apartment complex, and has complied with the terms of the contract.

In December, 1979, appellees closed the purchase of the apartment complex from appellant’s lessor and promptly notified appellant of its intention to remove appellant’s equipment from the premises. Appellant then filed action for injunctive relief.

At trial it was stipulated that if the license/lease contract is binding upon appellees a breach of contract would cause irreparable damage to appellant.

Appellees’ representative was shown the laundry room and equipment of the apartment complex on September 6, 1979, when the contract for purchase of the property was made, and was told the laundry facilities were a concession with the apartment complex owner receiving 50% of the revenues. It is clear the buyers, appellees herein, were fully aware prior to closing that the laundry equipment was owned and maintained by someone other than the seller. The appellees made no inquiry prior to closing the purchase as to who owned the laundry equipment and the terms and conditions of the agreement under which the space for the laundry equipment was occupied.

Incident to furnishing title insurance to appellees, the seller furnished an affidavit listing what purported to be all outstanding leases, but inadvertently failed to list the outstanding license/lease for the laundry facility room. The list of inventory of personal property included in the sale properly omitted the laundry equipment.

The court in dismissing appellant’s complaint held that although the presence of the laundry equipment in the apartment property placed appellees on notice to make inquiry with respect thereto, the affidavit by the seller which failed to reflect the laundry room license/lease satisfied any obligation of appellees to make inquiry concerning the laundry equipment and negated any constructive notice of the existence of the laundry room lease. The court held appellees were justified in considering the occupancy of the laundry room as at most a month to month tenancy terminable at will. Appellant contends the court erred in this holding.

We conclude the appellees, having had notice as early as September 6, 1979, that the laundry room in the apartment complex was occupied by equipment belonging to someone other than the seller and that the machines were operated on a concession arrangement, had a duty to inquire prior to closing as to the identity of the owner and the terms of the agreement under which the owner of the equipment was occupying the laundry room space. The appellees are, under the law, chargeable with notice of what that inquiry would have disclosed. Had such inquiry been made, appellees would have learned that appellant has a written lease on the laundry space for a term of seven years from October, 1977, plus certain conditional renewal rights. Appellees failed to exercise reasonable diligence to ascertain information as to the existence of the lease and they cannot be said to have the status of innocent purchasers taking title to the real estate free of the leasehold right of appellant.

The occupancy of the laundry room by several thous- and dollars worth of equipment, which appellees knew belonged to someone other than the seller, placed appellees on ample notice requiring diligent inquiry as to the identity of the owner, the existence of any occupancy agreement and the terms thereof. The appellees made no inquiry as to the identity of the owner of the laundry equipment or whether there was a written lease. Due diligence required appellees to do more than merely rely on the affidavit made by the owners to the title insurance company to bring them within the protection of the innocent purchasers without notice rule. Dean v. Freeze, 213 Ark. 264, 209 S.W. 2d 876 (1948); Valley Planing Mill Company v. Lena Lumber Co., 168 Ark. 1133, 272 S.W. 860 (1925). The rule approved in Valley Planing Co., supra, is, “Notice of facts putting a man of ordinary prudence on inquiry is tantamount to knowledge of the facts to which the inquiry might lead.”

The decree denying appellant’s complaint for injunctive relief is reversed and the cause is remanded for entry of a decree in keeping with this opinion.

Since we hold a decree should have been entered holding the laundry space lease binding upon appellees and appropriate injunctive relief afforded, we find it unnecessary to address appellees’ cross appeal contending the court erred in staying the enforcement of the decree. Our decision on the direct appeal effectively disposes of the cross appeal and same is dismissed.


source: Caselaw Access Project

author: Steele Hays, Judge.

license: Public Domain

text:
    Billy S. MABRY and wife, Moreda MABRY v. SOUTHWESTERN BELL TELEPHONE COMPANY
    CA 80-199
    606 S.W. 2d 373
    Court of Appeals of Arkansas
    Opinion delivered October 22, 1980

      Guy H. Jones, Phil Stratton, Guy Jones, Jr. and Casey Jones, by: Guy H. Jones, for appellants.

      Southern & James, by: Theodore Holder, and Sandra Brown, for appellee.
   Steele Hays, Judge.

This appeal challenges a summary judgment granted by the trial court on motion of the defendant below, Southwestern Bell Telephone Company.

On April 24, 1978, Billy S. Mabry and Morecia Mabry filed suit alleging that the telephone company had committed a trespass on April 21, 1976, upon a parcel of land owned by the Mabrys by removing a fence, destroying trees and shrubbery, and by digging a trench some 100 feet in length for the apparent purpose by laying a telephone cable. The complaint sought compensatory and punitive damages.

The suit evoked numerous pleadings, amendments, and a counterclaim, which we need not track in detail, except to say that the telephone company defended by way of a general denial and a contention that the complaint was barred by limitations pursuant to Ark. Stat. Ann. § 77-1636. Further, the telephone company alleged that any action by the company occurred within a utility easement.

While the matter was pending, the telephone company filed a motion for summary judgment claiming no material issue of fact, relying on an affidavit by Avery Auten that he was an engineer for the telephone company in April of 1976; that he staked out the line where the telephone cable was to be placed and that the stakes and line were within the company’s utility easement, as was the Mabry’s fence. This affidavit was countered with an affidavit from Mr. & Mrs. Mabry, referring to plats, individuals, and to litigation extraneous to the pleadings and the record, but nevertheless reasserting the ownership in fee simple absolute in the plaintiffs of the property described in the compláint as belonging to the Mabrys. This affidavit denies the creation of a valid easement by the telephone company from the plaintiffs or any predecessors in title. No easement, survey, plat or other instrument appears in the record.

Based upon “the pleadings, affidavits, motions, and arguments,” the trial court entered summary judgment finding “that the defendant’s claim to a rightful easement is valid” and ordering the dismissal of the complaint with prejudice.

After a motion to vacate the judgment which the court denied, plaintiffs bring this appeal, asserting that the court erred in granting the motion for summary judgment.

We agree with appellants that it was error to grant summary judgment based on an easement which does not appear in the record and is not identified as to grantors, date of grant, or even the description of the land subject to the alleged easement. In short, there is nothing in this record to validate a summary judgment other than the affidavit of Mr. Auten asserting simply that there is an easement and that he staked a line within its dimensions, which are disputed issues to say the least. One or more affidavits of the plaintiffs challenge the assertion of the Auten affidavit and clearly material issues of fact are present. The complaint alleges the ownership of a specific tract of real property by the plaintiffs and that the defendant unlawfully entered the plaintiffs’ property with consequential damage. These allegations have been denied, but it cannot be said that there is evidence to the contrary on which a summary judgment can be founded.

Numerous cases refer to the rule that summary judgment is an extreme remedy which should not be allowed except when there is no genuine issue as to any material fact and, further, the evidence must be viewed in the light most favorable to the party resisting the motion. Griffin v. Monsanto Chemical Company, 240 Ark. 420, 400 S.W. 2d 492 (1966); Wirges v. Hawkins, 238 Ark. 100, 378 S.W. 2d 646 (1964). More than that, the Supreme Court has "stated that even where a material issue is lacking, if reasonable men might still reach different conclusions, a motion for summary judgment is not proper. Braswell v. Gehl, 263 Ark. 706, 567 S.W. 2d 113 (1978).

Appellant relies upon the case of Jones v. Haliburton Company, 240 Ark. 919, 403 S.W. 2d 51 (1966), wherein the trial court granted Haliburton’s motion for summary judgment on the issue of whether Jones owned a leasehold interest in Oklahoma land, which Jones denied. The motion for summary judgment was based on an unsigned contract supported by an affidavit asserting that Jones owned a leasehold interest in the lands; Jones filed a motion simply denying that the contents of the affidavit were true. Upon Jones’ failure to refute the issue any further, the trial court granted a motion for summary judgment.

The Supreme Court reversed the trial court, stating that the appellant would not be required to offer further proof or take additional steps to refute the issue. The court stated that Jones was entitled to trial in order that he would have the opportunity to present his witnesses and cross-examine appellee’s (Haliburton) witnesses in open court. The facts are comparable to the case at bar.

Appellee raises another issue on appeal, namely, the statute of limitations. Without conceding that any material isue of fact exists, the appellee contends that even if the court erred in relying on the easement in granting summary judgment, nevertheless, if it reached the right result we should affirm, citing Purser v. Corpus Christi State National Bank, 258 Ark. 54, 522 S.W. 2d 187 (1975) and other cases. This argument is predicated on the language of Ark. Stat. Ann. § 77-1636, which limits to two years the time in which suits may be brought against a telephone company by reason of the maintenance of telephone lines on any real property. If this statute is applicable to the facts before us, then the appellee’s argument would be well-founded as it is apparent from the record that more than two years have elapsed between the alleged cause of action (April 21, 1976) and the filing of the complaint (April 24, 1978). Ark. Stat. Ann. § 77-1636 reads:

LIMITATION OF ACTIONS - No suit shall be brought against any telephone company or cooperative by the reason of the maintenance of telephone lines, poles, and fixtures on any real property . . . unless it is commenced within two years after the cause of action accrued . ..

We find no merit in this argument, as the statute clearly applies to suits arising from maintenance of existing telephone facilities, whereas the plaintiffs’ suit is based upon an alleged trespass for the purpose of installing an underground cable. Statutes which restrict either the common law or shorten existing periods of limitation are to be construed in strict accordance with their language and it follows that this statute, by its plain wording, is limited to activities by a telephone company arising out of the maintenance of lines, poles and fixtures. St. Louis, Iron Mountain & Southern Railway Company v. Batesville & Winerva Telephone Company, 86 Ark. 300, 103 S.W. 725 (1908); Peterson Produce Company v. Cheney, 237 Ark. 600, 374 S.W 2d 809 (1964); Matthews v. Travelers Indemnity Insurance Company, 245 Ark. 247, 432 S.W. 2d 485 (1968).

The appellee relies upon the case of Southwestern Bell Telephone Company v. Poindexter, 245 Ark. 624, 433 S.W. 2d 833 (1968), which is readily distinguished on its facts. In Poindexter, the Supreme Court interpreted this statute and applied it to a factual situation in which the telephone company had mistakenly assumed that it held an easement to lands later purchased by the appellee. Relying on such misinformation, the company installed an underground telephone cable and some six years later Poindexter acquired the property and on discovering the lines, demanded that the company remove it. The telephone company brought suit to enjoin Poindexter from damaging the cable and Poindexter counter-claimed for damages, which the trial court awarded. On appeal, the Supreme Court reversed the trial court on the basis of Ark. Star. Ann. § 77-1636, observing that the telephone company had maintained its line for more than the two years required by the statute.

In the present case, however, there is no contention that the appellee has maintained any of its lines, poles or fixtures for two years, as the pleadings reflect that it terminated any activity upon the disputed strip when the plaintiffs “remonstrated” and even filled in the ditch itself. Thus, there is no basis in this record on which it could be said that the appellee has maintained any part of its system for two years on the affected property. If there is a factual issue in that regard, then this appeal is without prejudice to such issue.

Reversed and remanded.

Penix, J., not participating.


text:
    Harold Glen McFADDEN v. Sherian Rose McFADDEN BRAMLETT
    CA 80-218
    606 S.W. 2d 375
    Court of Appeals of Arkansas
    Opinion delivered October 22, 1980

      A. Jack King and Neva Belcher King, for appellant.

      Robert S. Blatt, for appellee.
   Steele Hays, Judge.

This appeal is from an order of the Chancellor allowing an increase in monthly child support from $75.00 to $121.00. These parties were divorced in 1974 but have continued litigation with frequent petitions and counter-petitions. The current dispute involves a petition filed by Harold Glen McFadden for contempt based on Mrs. Bramlett’s alleged refusal to allow visitation as ordered. The allegations of Mr. McFadden’s petition were denied by Mrs. Bramlett and she also filed a counter-claim to increase the child support payments to a minimum of $150.00 per month. At the hearing, the only witness who testified was Mr. McFadden.

The Chancellor denied the petition for contempt and granted appellee’s motion for an increase in child support. Appellant was ordered to pay child in the amount of $121.00 per month. From the Chancellor’s decision, appellant brings this appeal.

The only point for reversal is that it was error to allow appellee’s counter-claim for an increase in child support for the reason that there was no evidence of a change in circumstances. We agree and, therefore, must reverse the ruling of the Chancellor. We are reluctant to do so, as the amount of the increase seems entirely reasonable, yet the cases are numerous and uniform in the requirement of a change of circumstances. See Lively v. Lively, 222 Ark. 501, 261 S.W. 2d 405 (1953) and cases cited therein.

The pertinent facts previous to this proceeding are set out as follows: The parties to this suit were granted a divorce on August 19, 1974. Appellee, Sherian Rose McFadden Bramlett, retained custody of their minor daughter and later obtained custody of their minor son by an order on a petition to the court.

By an order dated December 15, 1975, appellant was ordered to pay the sum of $100.00 per month in child support. As the result of an agreement between the parties, the child support payments were reduced from $100.00 per month to $75.00 per month, by an order dated February 7, 1979- This reduction was based on the fact that their oldest child, Harold McFadden, had reached his majority and now lives with his father.

Approximately one year later, appellant filed a petition for citation, stating that appellee had refused to comply with the terms of the order dated February 7, 1979; namely, that she has failed to allow appellant his visitation rights. Appellee answered the petition, denying any non-compliance with said order. Furthermore, she filed a counter-claim, stating that because of a change in circumstances, appellant’s child support payments should be increased to a minimum of $150.00 per month.

At the hearing, only the appellant, Harold McFadden, testified. He was asked about his income for the year 1979. He stated that he earned approximately $780.00 per month, but that he had not filed an income tax return for that year. He also stated that his company paid for some of his gasoline expenses and that his insurance was paid by his company. On the basis of this testimony, the Chancellor increased the child support payments from $75.00 per month to $121.00 per month.

We regard as settled law the rule that an increase in child support must be based upon a showing of changed circumstances. Barnes v. Barnes, 246 Ark. 624, 439 S.W. 2d 37 (1969); Haney v. Haney, 235 Ark. 60, 357 S.W. 2d 19 (1961), where Justice Smith stated for the court: “. . . any increase in the allowance for the support of the children must be based upon a showing that conditions have changed since the entry of the decree.” One seeking the modification has the burden of showing a change in circumstances requiring modification. Collie v. Collie, 242 Ark. 297, 413 S.W. 2d 42 (1967); Riegler v. Riegler, 246 Ark. 434, 438 S.W. 2d 468 (1969). Moreover, the consideration has a relative aspect: the needs of one party as compared to the ability of the other: Lively v. Lively, supra, and Watnick v. Bockman, 209 Ark. 696, 192 S.W. 2d 131 (1946). The assumption, considering a modification of the child support provision of a decree, is that the Chancellor correctly fixed the proper amount in the original divorce decree. Collie v. Collie, supra. In the instant case, we can find no evidence in the record to support an increase in child support on the basis of changed circumstances. Appellant merely testified as to his income and his financial circumstances for the year 1979, but there was no evidence to show that his economic situation had changed since the order of February 7, 1979, wherein appellant was ordered to pay $75.00 per month. Certainly there was no testimony that appellees’ needs had increased, as she did not take the stand. The record proves nothing in the way of a contrast in the appellant’s circumstances, and no information at all relative to the appellee — her needs, the extent of her income, whether she is employed, her living expenses, whether there are other dependents, the effect of her remarriage — in short, nothing to which a change of circumstances may be tied.

Therefore, the order of the Chancellor increasing the child support payments from $75.00 to $121.00 per month is reversed and inasmuch as it is clear from the order that the evidence was not fully developed the case is remanded for such further evidence as the parties may choose to offer.

Reversed and remanded.


author: James H. Pilkinton, Judge.

text:
    Henry L. HUMBERT, Employee v. ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT, Self-Insured Employer
    CA 80-277
    606 S.W. 2d 377
    Court of Appeals of Arkansas
    Opinion delivered October 22, 1980

      Jim Merritt and Donald Frazier, by: Donald Frazier, for appellant.

      Robert L. Wilson, for appellee.
   James H. Pilkinton, Judge.

This is a hernia claim arising under the Arkansas Workers’ Compenstion law. The Workers’ Compensation Commission denied the claim, and claimant has appealed.

It is undisputed that appellant had a hernia and was disabled from January 12, 1979, through March 5, 1979, and that certain medical treatment was rendered to him as a result of the hernia. Appellant contends that he was injured on January 12, 1979, resulting in a hernia condition; that he was disabled for six weeks; and is entitled to benefits under Ark. Stat. Ann. § 81-1313(e) (Repl. 1976). Appellee contends, and the Commission found, that appellant’s hernia resulted from a prior injury on May 24, 1978, and was barred.

On May 24, 1978, while working with the Arkansas Highway Department, appellant lifted a bag of cement and his foot slipped. He felt a pain in his stomach. He did not report this injury to his employer. He testified that he was attended at the time of .this incident by a “Dr. Ben,” a local practitioner, but this physician is not further identified by the record, and appellant offered no report or testimony from his doctor. On June 5, 1978, appellant went to Dr. A. K. Busby because of his May, 1978, injury. He was treated and returned to work and did not see the doctor again until January 12, 1979.

On January 12, 1979, appellant was still working for the Arkansas Highway Department. He normally drove a truck for a “sealing crew” but because of a. recent ice storm appellant was. removing trees and debris from the right-of-way when he was allegedly injured. He testified that after cutting on a tree and moving it, he found a knot on his stomach. He says he immediately quit work and sat down. After trying to resume work, and finding that he could not, he reported his condition to his foreman. Appellant was then seen by Dr. Busby that afternoon. Dr. Busby operated on appellant four days later and repaired the hernia. Appellant returned to work on March 5, 1979-

As the Commission pointed out, whether or not this second lifting incident caused the hernia, or caused a re-injury or aggravation is a medical question. While Dr. Busby’s evidence is not too clear in all details, his testimony concerning appellant’s condition is best summarized by the following:

... We treated him symptomatically and apparently he did all right, because he never returned from this. But this didn’t mean the hernia went away. The hernia was still there.
So now whether or not he — I mean, if you can say a reinjury causing it, no, the hernia is the same hernia that he had to begin with. In other words, we didn’t have a new hernia; we’ve got the same hernia. . . .

A thorough review of Dr. Busby’s testimony convinces us there is substantial evidence to support the Commission’s conclusion that the hernia condition for which appellant was treated was the result of the lifting incident of May, 1978. There is also substantial evidence to support the conclusion that appellant did not make the showing required by statute to support a claim for hernia

The Arkansas Workers’ Compensation statute does not provide benefits for every injury sustained by an employee in the course of his employment. Harkleroad v. Cotter, 248 Ark. 810, 454 S.W. 2d 76 (1970). The statute provides no benefits in claims for hernia unless five different things are shown to the satisfaction of the Commission. Ark. Stat. Ann. § 81-1313(e). The statute is plain as to what must be shown in order to establish a claim for hernia. There is substantial evidence in this record to support the Commission’s finding that appellant failed to make such showing. In dealing with this subsection of the Act, the Arkansas Supreme Court in Harkleroad v. Cotter, supra, said:

... It might be argued, with considerable logic, that the specific statutory requirements as to proof in claims for hernia, penalize the honest, industrious and conscientious workman who fails or refuses to put down his tools immediately and rush to a doctor every time he feels pain following sudden strain or effort. The record before us in the case at bar indicates that the appellee was just such a workman. It is a well recognized fact, however, that hernias may occur following any one of the numerous strains and efforts the average active individual workman may encounter during the 128 hour rest week, as well as during the 40 hour work week. It is a matter of common knowledge that witnesses do not see hernias sustained by fellow workmen as they would see a broken leg or broken arm. Consequently, the people have seen fit to make, and the legislature has seen fit to leave, a compensable hernia a rather dramatic occurrence under the statute, with little or no room left for question or doubt that it did occur within the course of employment as an immediate result of sudden effort, severe strain or force applied to the abdominal wall. The wording of the statute assumes the existence of a hernia. The statutory requirements of proof are directed at claims for hernia and not the existence or occurrence of a hernia . . .

As stated, the Commission found that appellant suffered a hernia injury while working for the Arkansas Highway Department in May of 1978, while unloading bags of cement. This court on appeal is required to view the testimony in the light most favorable to the Commission’s findings. When we do this, there is substantial evidence to support this decision. The evidence shows appellant went to Dr. Busby in June of 1978 for his injury in May, but continued working for the state. On or about January 12, 1979, he suffered additional pain in the abdominal area when moving logs.

In seeking reversal appellant relies on The Crossett Company v. Childers, 234 Ark. 320, 351 S.W. 2d 841 (1961); Prince Poultry Company v. Stevens, 235 Ark. 1034, 363 S.W. 2d 929 (1963); and Williams Manufacturing Company v. Walker, 206 Ark. 392, 175 S.W. 2d 380 (1943). We do not find these cases to be persuasive in the present case since it is clear that the claimant failed to give notice of the occurrence to his employer within 48 hours and he did not seek medical attention within 72 hours.

Appellant argues that it was not until January 12, 1979, that his working caused his congential weakness to be converted into an actual case of hernia. There is no substantial evidence, however, to support this theory; and there is substantial evidence to support the Commission’s conclusion that the hernia resulted from the May, 1978, incident.

Affirmed.


author: Marian F. Penix, Judge.

text:
    Delia HEFTON v. Charles L. DANIELS, Director of Labor
    CA 80-42
    606 S.W. 2d 379
    Court of Appeals of Arkansas
    Opinion delivered October 22, 1980

      Appellant, pro se.

      Herrn Northcutt, for appellee.
   Marian F. Penix, Judge.

The agency held Claimant to be ineligible for benefits under the provisions of Section 4(c) of the Arkansas Employment Security Law in that she was not actively seeking work and doing those things that a reasonably prudent individual would be expected to do to secure work. The Appeals Tribunal affirmed and found the Claimant’s availability for work is unduly restricted due to transportation, and she cannot be considered to be making a systematic and sustained effort to secure employment by doing those things that a reasonably prudent individual would be expected to do to secure work. She was held to be ineligible for benefits from October 7, 1979 up to and including November 16, 1979- Claimant has appealed.

On October 18, 1979, the Claimant made a statement on ESD-ARK-525 worksheet. “I have been unemployed since June of 1979- During the week ending 10/13/79 I contacted two employers for work, I have no prospects at this time.” The agency determined that considering the length of Claimant’s unemployment her efforts during the week ending October 13, 1979 do not constitute an active search for work.

From the record we find the Claimant testified she is seeking a factory job, or nursing home work, or grocery store work. She testified she lives five miles from Mountain View but would have transportation to Mountain View. She stated she had a 1964 Chevrolet and it wouldn’t make it to and from a farther distance every day. She stated the rest of the towns were too far away.

She said she would be willing to relocate but would then have to rent. Having to pay rent would necessitate her earning $4.00 per hour. She testified she would be available for work on the first, second, third, or rotating shifts. She testified also she had been to apply at Nu-Way on October 23, 24, and 26, and finally got “ahold” of the manager on the 26th. She said she went to apply at a nursing home on October 24 and on November 14, but was told on November 14 there were no openings. She testified she applied at UMC, a wood plant, on November 15 and also had applied at Ramsey’s Hardware on November 15. She stated she had also applied at Ozark Woodwork on November 14, and had applied at the shirt factory recently. She said she applied at IGA the last of October.

Peggy Smith testified on behalf of the Claimant. She said she had been trying to get Claimant on at the shirt factory. She also said Claimant had applied at AP & L and also at the water company.

The Claimant stated if she were to work any place other than Mountain View it would require her driving 100 miles each day. the Claimant did find employment at Oak Grove Lodge Nursing Home on November 22, 1979 and is now working there.

We hesitate to reverse the findings of the Appeals Tribunal and the Board of Review. However, in this case, we find the record reflects a woman not highly skilled trying to find work in a sparsely populated area where work for which she would qualify is scarce. She readily said she would have transportation to and from Mountain View. However, she said she could not relocate unless her pay was at least $4.00 per hour. We find the Claimant’s statements and efforts to be those of a reasonably prudent individual actively seeking work for which she would qualify. Finding the decision of the Board of Review is not supported by substantial evidence, we must reverse. Ross v. Charles L. Daniels, Director of Labor, 266 Ark. 1056 (1979).

Reversed.


text:
    CITY OF LITTLE ROCK, Arkansas v. Sgt. Bill BATES
    CA 80-226
    607 S.W. 2d 68
    Court of Appeals of Arkansas
    Opinion delivered October 22, 1980
    Rehearing denied December 3, 1980

      R. Jack Magruder, III, City Atty., by: Lester A. McKinley, Asst. City Atty., for appellant.

      McArthur & Lassiter, P.A., for appellee.
   Marian F. Penix, Judge.

Appellee Bill Bates was discharged from the Little Rock Police Department on April 5, 1977 after fifteen years as a law enforcement officer. He appealed to the Little Rock Civil Service Commission where his termination was affirmed. The Commission’s determination was appealed to Pulaski County Circuit Court. The case was tried de novo and was reversed. The Court ordered Bates reinstated to his former position of sergeant without back pay. The Court also ordered Bates be paid for 44 1/3 days of sick leave which had accrued at the time of dismissal. The City of Little Rock appealed.

The events leading up to Bates’ discharge arose from circumstances involving Bates’ domestic troubles, and his concern about the welfare of his children — particularly his fifteen year old daughter Colleen.

On June 21, 1976 Bates received a reprimand for an incident involving a Linda Shelton. The record reflects Linda Shelton was arrested and unnecessarily detained because of mistaken identity. Bates was held responsible.

On September 30, 1976 Bates received a five day suspension as a result of a September 23 incident. While in uniform and on duty Bates drove to 7323 Missouri Street, the home of Ann McGaugh. He had no official reason for going to that address. His visit was entirely for personal reasons. Bates’ ex-wife, his fifteen year old daughter and her boyfriend were present at the address. Bates created a disturbance threatening to kick in the door. Ms. McGaugh filed a complaint with the Little Rock Police Department. On the same evening Bates transported his daughter to North Little Rock in a police vehicle. The suspension letter states he violated Sections 5, 6, 16 and 25 of the Police Department’s Rules and Regulations. Section 5 provides for disciplinary action in the event of dereliction on duty. Section 16 defines Conduct Unbecoming an Officer or a Gentleman and what constitutes departures from such conduct. Section 25 forbids a member of the police department from leaving a place of duty or assignment without proper authority. The letter of suspension warned: “. . . and should you be involved in any similar incident in future more severe disciplinary action will be taken against you up to a reduction in grade and/or dismissal from the police service.” Bates did not appeal this suspension.

On January 1, 1977, while off duty, Bates went to his ex-wife’s home and, according to her uncontradicted testimony, physically assaulted her. He was at her house picking up his two younger children. Bates does not deny hitting his ex-wife, but states: “I think she grabbed me, grabbed this suit and tried to bite me on the leg, and if I struck her, it was unintentional, just hitting her.” His ex-wife called the police and reported the incident.

On January 30, 1977, Bates left his duty thirty minutes early, and while still in uniform went to his ex-wife’s home about 6:55 a.m. He began to beat on the door. He entered the house through the kitchen window. His daughter Colleen was in one bedroom and her boyfriend, Johnny Maness, was in another bedroom. Bates ordered Johnny to leave, which he did. Later Johnny returned to take Colleen to church. As they drove onto the Interstate Highway Bates saw them. He chased them at a high rate of speed, but Johnny and Colleen lost him. Later in the day they returned to Colleen’s house. Bates was concealed inside the house. Johnny testified Bates grabbed him by the hair and struck him with his fist and kicked him with his boots. Colleen testified she didn’t see Bates strike Johnny but she saw him holding Johnny’s neck with both hands in a choking manner.

On February 10, 1977 Bates went to his ex-wife’s home, and in the presence of two friends with whom she was drinking coffee, he proceeded to direct obscene and profane language towards her. She reported this incident to the police.

On March 18, 1977 around 2:00 a.m. Bates’ daughter Colleen and Johnny Maness were asleep on the couch in Bates’ ex-wife’s home. Bates rang the doorbell. Johnny hid in one of the bedrooms. Colleen let Bates in. He left shortly but returned in about thirty minutes. He came through the door and said “I’m going to kill that boy, where is he at.” Johnny ran from the house and hid in some nearby woods. Johnny saw Bates’ car going up and down the street and heard someone letting air out of the tires of his car. Johnny later found the stems to his tires cut off. After chasing Johnny, Bates returned to his ex-wife’s house. The front door was locked. Bates allegedly kicked in the front door and also kicked in the door leading to Colleen’s bedroom. Pulaski County and Little Rock police officers arrived on the scene and took him home. They found he had been drinking and felt he was in no condition to drive. Bates admitted he had had two drinks a couple of hours earlier.

On April 5, 1977 Chief of Police W. D. Gibson wrote Bates informing him he had been terminated for violating Rules and Regulations of the Little Rock Police Department. The letter stated he had violated Section 16 on January 7, 1977 by creating a disturbance involving an assault upon his ex-wife.

The letter stated Bates had further violated Section 16 on January 30, 1977 by committing criminal trespass at his ex-wife’s house and physically assaulting Johnny Maness. Section 16 is as follows:

No officer of this department shall conduct himself in a manner unbecoming of an officer or a gentleman, either on duty or off duty.

The letter stated Bates had violated Section 15 also on January 30, 1977. The letter pointed out this Section was violated February 10, 1977 and again on March 18, 1977.

Bates was also charged with violation of Section 22 on March 18, 1977. Section 22 reads:

The following are prohibited: C. The excessive use of intoxicating liquor.

In Bates’ appeal to the Circuit Court he alleged his troubles all stemmed from his concern over his fifteen year old daughter’s relationship with Johnny Maness, and because of his worry he was incapable of performing his duties. Johnny Maness is a high school drop-out who had been convicted of theft of property.

The City of Little Rock chose to stand on its record from the Civil Service Commission hearing. Before the Circuit Court, Bates introduced further witnesses. Bill Sanford, Captain of the Little Rock Police Department testified as to Bates’ performance as a police officer prior to the termination. His testimony actually did not shed much light as to Bates’ temperament or performance during the period leading up to the termination. He judged Bates as an average officer and said he had never seen any sign of alcohol consumption on the job by Bates.

Ken Durham, a Sergeant in the Criminal Investigating Division of the Pulaski County Sheriff s office, testified he had worked with Bates as his immediate supervisor at the time of the dismissal. He stated he would classify Bates as above average, that Bates did not drink on duty and generally did the work required of him under supervision. When on cross-examination he was faced with a letter of reprimand he had written to Bates June 21, 1976 concerning the incident involving a Linda Shelton, Durham stated he did not recall whether or not he was ordered to issue the reprimand.

Vernon Lester, a Little Rock Police Department patrolman, classified Bates as being “as good as any other supervisor I have worked for in the Little Rock Police Department.” However, he was not working with Bates at the time the series of incidents began.

Over the objection of the city, Jim Burnett, former Municipal Judge in Clinton, Arkansas, testified that in the months following Bates’ dismissal he had observed him as he worked as a law enforcement officer for the town of Damascus. Burnett stated Bates conducted himself in a very professional manner.

Another witness, Gus Anglen, Sheriff of Van Burén County, testified Bates was also one of his deputy sheriffs. He stated Bates was a very responsible officer, and certainly capable of dependable performance as an officer.

Colleen Bates, daughter of the appellee, testified over objection of the City. The City contended she had testified by affidavit before the Civil Service Commission, and therefore any testimony would be cumulative. The Court permitted her to testify. Colleen testified her former statements before the Commission were exaggerated because she was pushed by members of the Little Rock Police Department into making complaints about her father. She testified her father had never actually kicked a door down — that in fact he had a key to the house at the time he allegedly kicked in the door, and that the key had been given him by his ex-wife. She testified to the hostility which had grown between her father and herself because of her relationship with Johnny Maness. She stated her father now has custody of all three children including herself. She said he was short tempered concerning his children and their surroundings. She said she rebelled against her father until 1978 but has since gone to live with him. She also said she didn’t recall stating her father tried to choke Johnny, nor did she recall stating her father slung her across the room. She said she didn’t remember her Dad saying “if that boy is in here, I am going to kill him.” She did say she recalled stating her father “threw me down and that is when he kicked me in my bedroom.” and that statement is true. She testified the statements made which were in the record before the Commission might be different if made at a later time because at the time she made them she was rebelling and wanting to hurt her father. Also, she said she was pressured by police officers to make such statements. She said she didn’t think she was in any condition to be giving any statement at the time she gave them to police officers questioning her.

Bates testified before the Circuit Court that all the incidents leading to his dismissal related to his children. He said he could get no help from his ex-wife, Johnny Maness’ parents nor anyone else. He testified he was under a lot of mental strain and pressure at the time he appeared before the Commission, and realized he couldn’t function properly until he got his problems solved. He testified he was on sick leave when he was informed of his dismissal. By August, he was able to return to work as a police officer and he went to work at Damascus. At the present time he has custody of his three children. He testified his problems were resolved and he would like to return to the Little Rock Police Department.

The Circuit Court found from the evidence Bates is capable of performing as a responsible police officer. The Court, as evidenced by this finding, did not deal with the issue before it. The issue is not whether the appellee is now some three years after his dismissal, capable of performing as a police officer, but whether the decision to dismiss him from the force was proper. Reinstatement is not the issue, but rather the dismissal.

The Circuit Court heard this case de novo. Petty v. City of Pine Bluff, 239 Ark. 49, 386 S.W. 2d 935 (1965); Ark. Stat. Ann. § 19-1605.1. The Circuit Court also has discretion in hearing additional testimony when a case is appealed to the Civil Service Commission. Ark. Stat. Ann. § 19-1605.1. This discretion, however, was abused by the trial court. The testimony of those witnesses who knew only of Bill Bates’ performance and mental state subsequent to the dismissal should not have been allowed. This did not bear on whether the dismissal was proper at the time. His subsequent activities or his ability to perform at this time have nothing to do with his ability to perform in April of 1977 and whether the incidents reported were violations of the Rules and Regulations of the Little Rock Police Department for which dismissal was warranted.

We find the decision of the trial court to be clearly erroneous. The uncontracted evidence reveals violations of Sections 5, 6, 16 and 25 of the Rules and Regulations. These regulations cover conduct unbecoming a gentleman, behavior which would subject the officer to justified unfavorable criticism, prohibition of excessive use of alcohol, and obedience to the laws of the United States, the state of Arkansas and the City of Little Rock. The uncontradicted evidence shows a violation of the law in an assault on both Johnny Maness and Bates’ ex-wife Karol.

The appellee attempted to justify the repeated violations of the Rules and Regulations by characterizing them as private personal business which occurred while he was off duty. These Rules and Regulations do not draw a distinction between behavior which is acceptable while on duty and behavior which is acceptable while off duty. Furthermore, these incidents affected private citizens and cannot be classified as merely personal and private business.

The Supreme Court has spoken to the issue of the type of conduct required of police officers.

We thus have a police lieutenant who was regularly working on the city police force of Hot Springs, but who, in his off time, was working in a gambling house in that City. The city police force of Hot Springs cannot condone its policeman in such violations of law. ... A policeman in a municipality cannot represent the City as a policeman part of the twenty-four hours, and then assist in the operation of a gambling place of business the rest of the time. Campbell v. City of Hot Springs, 232 Ark. 878, 341 S.W. 2d 225, 228 (1961).

Again, in McNeal v. Civil Service Commission of the City of Little Rock, 237 Ark. 301, 372 S.W. 2d 614, 616 (1963), the Court stated:

We have no hesitancy in declaring that McNeal’s conduct violated the city’s Rule 21. His behavior was unbecoming to a gentleman; it was of such a nature as to bring him into disrepute as a municipal employee. It must be realized upon reflection that in our system of self-government it is essential that those in the public service demonstrate a high sense of morality. Public employment must be regarded as something more than a mere opportunity to earn a selfish livelihood. If those privileged to be in the public service do not display that basic integrity that the government itself must have, how can the people be expected to maintain their confidence in the system?

Finding the decision of the trial court is not supported by substantial evidence, we must reverse. Briley v. Little Rock Civil Service Commission, 266 Ark. 394, 583 S.W. 2d 78 (1979); Civil Service Commission of Harrison v. Reid, 261 Ark. 42, 546 S.W. 2d 413 (1977); City of Little Rock v. Hall, 249 Ark. 337, 459 S.W. 2d 119 (1970).

Reversed.


author: George Howard, Jr., Judge.

text:
    WORTHEN BANK & TRUST COMPANY, N.A. v. C. L. WALKER; Jerry MATHIS d/b/a MATHIS SHEET METAL COMPANY; Alphonse M. HIEGEL and Paul J. HIEGEL, d/b/a HIEGEL LUMBER COMPANY and BUILDERS CARPET COMPANY, INC.
    CA 80-230
    606 S.W. 2d 382
    Court of Appeals of Arkansas
    Opinion delivered October 22, 1980

      Rose Law Firm, by: Allen W. Bird, II, for appellant.

      Brazil & Roberts-, Clark & McNeil', and Ronald L. Burton, for appellees.
   George Howard, Jr., Judge.

The question presented in this appeal is whether the trial court erred in finding that labor and materials supplied by materialmen — preparatory work for the construction of a dwelling house — constituted commencement of improvements within the meaning of Ark. Stat. Ann. § 51-6Ó7 (Repl. 1971), hence affording the lien of the materialmen priority over a mortgage, filed subsequently to such work, securing a construction loan extended by Worthen Bank & Trust Company.

Section 51-607 provides:

“The lien for work and materials . . . shall be preferred to all other encumbrances which may be attached to or upon such building, bridges, boats or vessels or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.”

On March 4, 1977, Worthen Bank & Trust Company, appellant, filed its mortgage for record which secured a construction loan of $22,400.00 granted to Elbert Credit and Joyce Ann Credit to construct a single family dwelling. Prior to the recordation of the mortgage, Tom Padgett removed a fence located on the property, cleared brush and filled a small lake located on the rear of the property.

In an action brought by Padgett and other materialmen for judgment against the owners and materialmen’s lien, the trial court held that the materialmen’s liens were superior to appellant’s mortgage inasmuch as the work performed by Padgett constituted commencement of improvements. The trial court awarded the materialmen a judgment for $9,-111.17 and Worthen a judgment of $30,537.58.

Pursuant to the foreclosure decree, the property was sold for $27,035.72.

Worthen concedes that Padgett performed the preparatory work as alleged, but argues that as a matter of law the work does not constitute “commencement of improvements” within the meaning of Section 51-607.

The testimony offered in evidence below has not been abstracted. It is conceded by the parties that the testimony has been lost and can not be reproduced.

Worthen also argues that the testimony is not relevant since it accepts the court’s findings. We do not view the situation as optimistically as Worthen. We are persuaded that without even the benefit of a summary of the testimony from which the trial court made its findings, an affirmance of the trial court is imperative.

We are unable to say, from the record before us, that the findings of the trial court are clearly against the preponderance of the evidence.' We have no way of determining the type or amount of fencing removed; nor are we able to determine the amount and type of underbrush that was involved. We have no way of determining the amount of sand that was delivered to the property, nor the extent of the work in filling the lake. It seems plain that we may not indulge in speculation or conjecture in order to fill the deficiencies in this record.

We are not able to say that the work performed by Padgett was not such as to be visible or indicate activity on the property involved making it readily apparent that improvements were being commenced. See: Clarke v. General Electric Company, 243 Ark. 399, 420 S.W. 2d 830 (1967).

In Allen Armbrust, d/b/a Allen Armbrust Construction Company v. Val Henry, 263 Ark. 98, 562 S.W. 2d 598 (1978), the Supreme Court emphasized that an appellate court must presume that the missing testimony in a record on appeal supports the findings of the lower court. The appellant has the burden to bring up a record sufficient to establish that the trial court is in error.

Rule 52(a) of the Rules of Civil Procedure provides:

“. . . Findings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. . . .”

We further hold that we cannot say, from the record before us, the chancellor erred as a matter of law in holding that Padgett’s work constituted commencement of improvements upon the subject property.

Affirmed.

       Rule 6(d) of Rules of Appellate Procedure provides:
      “If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best means available, including his recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within ten (10) days after service upon him. Thereupon the statement and any objections or proposed amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall be included by the clerk of the court in the record on appeal.”
      Worthen has not offered an explanation for not complying with Rule 6(d).


text:
    Alan Wade JOHNSON v. STATE of Arkansas
    CA CR 80-38
    606 S.W. 2d 381
    Court of Appeals of Arkansas
    Opinion delivered October 22, 1980

      E. Alvin Schay, State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Judge.

Appellant was found guilty, by a jury, of the offense of second degree escape; and he was sentenced to the Arkansas Department of Correction for a term of three years.

Appellant seeks reversal of his conviction on the sole ground that the trial court erred in failing to excuse a juror, Mrs. Janis Kerr, for cause.

During voir dire of the jury panel, Mrs. Kerr, the wife of an assistant police chief of the North Little Rock Police Department, was asked “[w]hether you could go home and tell him [her husband] you found somebody not guilty charged with a crime and not cause any problems at home?” In reply, Mrs. Kerr stated “I’ve served on another jury before. I believe I would listen to the evidence and find accordingly.”

Having exhausted all of his peremptory challenges, appellant moved that Mrs. Kerr be excused for cause based on “an implied bias.” The trial court denied appellant’s motion.

Appellant argues in his brief:

“Appellant is not asking this court to rule that the wife of a law enforcement officer is automatically disqualified from criminal trial jury service. Rather he is asking that such a person be more positive about not carrying any prejudice into the jury box.”

The appellant concludes his argument by asserting that the trial court abused its discretion in not excusing Mrs. Kerr; that Mrs. Kerr’s response displayed enough actual bias to preclude her from jury service under Pickens v. State, 260 Ark. 633, 542 S.W. 2d 764 (1976).

In Pickens, a juror, on voir dire, testified that he had a nephew who was a police lieutenant in Los Angeles; and that he possessed preconceived notions about the guilt or innocence of a defendant accused of narcotics violations; that those preconceived notions were based upon what he had heard from his nephew who was an undercover agent in narcotics. When the juror was pressed to state whether his opinion concerning drug cases would influence his verdict in the case in which he had been called as a prospective juror, which involved a charge of sale and delivery of a controlled substance, the juror responded “I don’t think so.” When asked further whether he would give more weight or credibility to a drug undercover agent than he would to any other witness simply because he was a drug undercover officer, the juror replied, “I don’t think that I would.”

It is plain that Pickens is not on all fours with the instant case. Mrs. Kerr at no time acknowledged that she had any preconceived notions about the guilt or innocence of the defendant in this case. The substance of the question posed to Mrs. Kerr was whether she would encounter any problems at home if she voted not guilty on the issue of defendant’s guilt. Her reply was: “I have served on a jury before and I believe I would listen to the evidence and make a finding based upon that evidence.”

Moreover, in Pickens, the Court found that the juror’s initial response created a presumptive bias which was not overcome by the rehabilitative efforts of the trial court; for there was still evidence of residual prejudice in the juror’s responses which justified a finding that the juror should have been excused for cause.

Ark. Stat. Ann. § 39-105(e) (Repl. 1962 and Supp. 1979), provides, in relevant part, that no person shall serve as a petit juror in any case who:

“Is biased or prejudiced for or against any party to the cause or is prevented by any relationship or circumstance from acting impartially; . . .”

Appellant has not demonstrated that Mrs. Kerr possessed any preconceived notions about appellant’s guilt or that she harbored any prejudices in any way as a juror.

Affirmed.


author: David Newbern, Judge.

text:
    Gordon Allyn BYARS and Covetta BYARS, His Wife v. Dora Lee BYARS
    CA 80-183
    606 S.W. 2d 595
    Court of Appeals of Arkansas
    Opinion delivered October 22, 1980
    Rehearing denied November 19, 1980

      Parker, Henry & Walden, for appellants.

      Mooney & Boone, for appellee.
   David Newbern, Judge.

In this case the chancellor was asked to declare that a warranty deed constituted an equitable mortgage. The chancellor declined to do so, and we agree because the conduct of the appellants is not such as to entitle them to equitable relief. Thus, the chancellor’s decision is affirmed.

The appellee, Dora Lee Byars, is the mother of the appellant Gordon Byars. The appellee gave Gordon a tract of land upon which he built a house. He apparently had difficulty making payments on a mortgage by which he had financed the house, whereupon he sought his mother’s financial assistance. The appellee agreed to borrow $17,000 from a bank to satisfy the debt. Her testimony was that the banker through whom she obtained the personal loan had advised her to get a deed to the property. Thereafter, on November 30, 1972, the appellants conveyed the property in question to the appellee. The appellee further testified that the appellants, pursuant to an oral agreement, were to pay all of the taxes and insurance premiums on the property and were to pay $120 per month into a special bank account which she had set up until the entire debt was satisfied.

The record shows that the appellants did not pay the property taxes and that, over a period of some six years, they only made three of the $120 payments. Gordon testified that the oral agreement was not as the appellee stated, but that he was only to make payments when he was able to do so. Just as there is no question that the appellants have only made three of the agreed payments, there is no question that the appellee was to deed the property back to the appellants when the debt had been satisfied.

Gordon testified he was injured at about the time the loan was made and the deed executed to the appellee, and that he thereafter was unable to work except intermittently. He testified, however, that he was and had been receiving social security disability payments of $500 per month since 1976 and his wife had been working for at least a year earning approximately $100 per week. The only justification offered for failure to pay was the contention that his agreement with his mother did not require him to pay. Obviously, the chancellor declined to believe that statement, and we have no reason to gainsay his conclusion.

Although this transaction has nearly all of the earmarks of an equitable mortgage, the chancellor was correct in refusing to grant that remedy. From the record before us, it is apparent the appellants have not even attempted to “do equity.” Although we know of no Arkansas case which holds specifically that a person asserting an equitable mortgage must have paid the accompanying debt or tender such payment, we find that concept approved by dictum in Tyler, Administrator v. Morgan, 214 Ark. 667, 217 S.W. 2d 606 (1949). We find this case to be one where the maxim “he who seeks equity must do equity” is clearly applicable. Flanagan v. Drainage District No. 17, 176 Ark. 31, 2 S.W. 2d 70 (1928); McMillan v. Brookfield, 150 Ark. 518, 234 S.W. 621 (1921).

It is obvious the appellants are seeking to benefit from the appreciation in value of the property. It is equally obvious it would be inequitable for them to obtain that benefit in the circumstances of this case.

Affirmed.


text:
    PACCAR FINANCIAL CORP. v. Charles W. HUMMELL.
    CA 80-231
    606 S.W. 2d 384
    Court of Appeals of Arkansas
    Opinion delivered October 22, 1980

      Arnold, Hamilton & Streetman, for appellant.

      Holloway & Haddock, for appellee.
   David Newbern, Judge.

The appellee claimed the appellant had unlawfully taken from the appellee a tractor-trailer rig and had given notice to the appellee that it was to be sold at a certain time because it was collateral for a debt of the appellee which was unpaid. The appellant is allegedly assignee of a sales contract pursuant to which the appellee purchased the rig in question. In addition to asking for a return of the rig and other personalty allegedly taken, the appellee sought compensatory and punitive damages. The appellee demanded a jury trial and asked the circuit court to grant a preliminary injunction to stay the sale proceedings. The court granted the preliminary injunction staying the sale “pending further orders” of the court. This is an appeal of the order issuing the preliminary injunction.

The appellant contends the injunction should not have issued because (1) a circuit court lacks jurisdiction to grant such an injunction, (2) there was no allegation, either by affidavit or in the verified complaint, of irreparable harm, and (3) the appellee has an adequate and complete remedy at law. Because we find neither an allegation nor a showing of prospective irreparable harm, we reverse. As this conclusion disposes of the case, we decline to discuss the other two points raised by the appellant.

A. R. Civ. P. 65(a)(1) provides that, where a preliminary injunction is to be given without notice to the adversary of the one requesting it, it must be alleged by affidavit or verified complaint that, absent the injunction, irreparable harm will result to the appellant. Where notice is given, the rule contemplates that a hearing will be held at which such irreparable harm may be shown to be in prospect.

The order granting the stay of the sale recited that the appellee had appeared specially at the hearing on the injunction petition to question the jurisdiction of the court. Thus it is apparent that notice was given to the appellant, but there is no evidence or suggestion in the record that the appellee made a showing with respect to irreparable harm.

The complaint did not state facts suggesting irreparable harm would occur without the stay, and it did not even make a bare allegation with respect to irreparable harm. Thus the court had before it neither allegation nor showing on that matter at the time the order was granted.

The prospect of irreparable harm or lack of an otherwise adequate remedy is at the foundation of the power to issue injunctive relief. See, e.g., Ahrent v. Sprague, 139 Ark. 416, 214 S.W. 68 (1919); Ex Parte Foster, 11 Ark. 304 (1850). See also, Dobbs, Remedies, p. 108 (1973). Cf., Jones v. Bartlett, 209 Ark. 681, 191 S.W. 2d 967 (1946). We interpret rule 65(a)(1) to require that when a hearing is held on the question whether a preliminary injunction should issue, with notice to the defendant, the party requesting the injunction must have made allegations of irreparable harm which stand unrebutted by the defendant or must show that absent the injunction he or she will suffer irreparable harm. Otherwise, no injunction may issue.

Reversed and remanded.


author: George Rose Smith, Justice.

text:
    John W. ACKLIN a/k/a Yahya ZAKARIYA v. STATE of Arkansas
    CR 80-171
    606 S.W. 2d 594
    Supreme Court of Arkansas
    Opinion delivered October 27, 1980

      E. Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The only question here is whether the trial judge actually exercised his discretionary authority in directing that three three-year sentences imposed by the jury should run consecutively rather than concurrently. We are unable to say there was an exercise of discretion and therefore remand the case for resentencing.

Acklin pleaded not guilty to three charges of forgery, but on the witness stand he freely admitted his guilt and attributed the forgeries to a number of things, including his loss of a job, his separation and divorce, and his inability to support his five children. The jury verdicts of three years for each offense were near the minimum, the range of punishment for a Class C felony being two to ten years. Ark. Stat. Ann. § 41-901 (c) (Repl. 1977). The Code also provides that multiple sentences shall run concurrently unless the court orders them to run consecutively. § 41-903 (3)(a).

How two or more sentences should run lies solely within the province of the trial court. Graham v. State, 254 Ark. 741, 495 S.W. 2d 864 (1973). In sentencing, however, there must be an exercise of judgment by the trial judge, not a mechanical imposition of the same sentence in every case. United States v. Derrick, 519 F. 2d 1 (6th Cir., 1975); Woosley v. United States, 478 F. 2d 139 (8th Cir., 1973). We have disapproved, as an implied threat, a trial judge’s uniform practice of telling the accused that if he is not guilty he should plead not guilty, but if the jury imposes separate sentences the judge will “stack” them. Orman v. Bishop, 243 Ark. 609, 420 S.W. 2d 908 (1967).

After the verdicts were announced in the case at bar there was an extended discussion between the court and counsel, which we quote in part. In response to defense counsel’s request that the sentences run concurrently, because the defendant had five children to support, the court replied:

I’m mindful of that, Mr. Holder. And I’m also mindful that ... he has not been in trouble with the law since 1967. However, I am also mindful that Mr. Zakariya has had no defense to this case and has put the county to substantial expense to try this without a defense which he is entitled to. It’s my feeling about it that if you want to see the hole card and go to a jury to see what they will do, then you ought to be willing to run the risk.
There’s no defense to this case. There has not been one presented, and it’s been an exercise that Mr. Zakariya elected to see what would happen, I guess. . . . It’s expensive to see and to look and to try the system. So it’s my judgment that he should not be entitled to consideration.
* # * #
He is not being penalized for exercising his right [to a jury trial]. The truth of the matter is that he had no defense to this case. . . . He could [not would, as the State argues] have gotten the same judgment, the same sentence, the same due process, had he come in here and told the Court that he was guilty.
I am reminded of Judge J. Smith Henley in federal court, where thé federal courts do all the sentencing, and all the guilt or innocence is determined by the jury. ‘If you’ve got a legitimate defense, come over here and argue it. It won’t cost you anything. But if you come over here and waste my time, the jury’s time and the taxpayer’s money, it may very well cost you something.’
I’m not saying that’s what I’m doing. It’s my customary rule to run consecutive sentences imposed by jurors, not because it’s an expense to the county and not because someone elects to do that; it’s just my judgment in the matter that generally that’s what the jury intends to do.

The Code vests the choice between concurrent and consecutive sentences in the judge, not in the jury. We commend the trial judge for his outspoken candor and would certainly condemn a resort to silence as a deliberate means of concealing an improper practice. But the trouble is, nothing in the colloquy indicates that the trial judge really exercised his discretion. Rather, he seems to have imposed consecutive sentences either because the defendant asked for a jury trial without any defense or because it was the court’s rule to direct that jury sentences run consecutively. We have often said that a court proceeding should not merely be fair; it should also appear to be fair. Without implying in any way that the consecutive sentences are unwarranted, we find it best to remand the cause for resentencing. See Derrick and Woosley, supra.

Reversed and remanded.


author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    Patricia Ann SUGG, Personal Representative of the Estate of Charles Richard SUGG v. CONTINENTAL OIL COMPANY
    80-201
    608 S.W. 2d 1
    Supreme Court of Arkansas
    Opinion delivered October 27, 1980
    Rehearing denied December 8, 1980

      Jackson, Vowell & Brown, for appellant.

      Friday, Eldredge & Clark, by: William H. Sutton, for appellee.
   Frank Holt, Justice.

This appeal results from the court’s granting appellee’s motion for summary judgment.

Appellant’s husband died May 15, 1973, from injuries he sustained on appellee’s premises. On January 31, 1975, appellant filed suit to recover damages under the wrongful death and survival statutes. See Arkr Stat. Ann. §§ 27-901 and 27-906 — 910 (Repl. 1979). On May 31, 1978, or after expiration of the three year period of limitation (actually five years after the cause of action arose), a nonsuit was granted under Ark. Stat. Ann. § 37-222 (Repl. 1962) at appellant’s request with leave to refile the action within one year. The present action was refiled April 18, 1979, or within the year. The trial court granted appellee’s motion for summary judgment finding that the subsequent filing, although within one year from the date of dismissal of the first complaint, was not within the three year statute of limitation (§ 27-907) for wrongful death actions, which statute of limitation is part of the wrongful death statutes.

Appellant acknowledges that the trial court’s holding is in accordance with Vines v. Arkansas Power & Light Company, 232 Ark. 173, 337 S.W. 2d 722 (1960); and Sandusky v. First Electric Coop., 266 Ark. 588, 587 S.W. 2d 37 (1979). In Vines we noted that no cause of action for injuries, as here, resulting in death existed in Arkansas prior to the legislature enacting the wrongful death statute. We held this act has its own statute of limitation (presently three years, § 27-907) and the general savings statute, § 37-222, is inapplicable.

Appellant argues, however, that our holding in Vines is in conflict with the law in other jurisdictions. While we recognize that other jurisdictions have reached the opposite result on this issue, it appears Vines is the view adopted in a majority of states deciding this question. See 2 Speiser, Recovery for Wrongful Death, § 11:22, p. 202 (2d 1975); An-not., 132 A.L.R., p. 325 (1941). The view in Vines was expressed long ago in Tiffany, Death by Wrongful Act, § 121 (1913). The author states:

These special limitations differ in some respects from those created by the ordinary statutes of limitation. Inasmuch as the act which creates the limitation also creates the action to which it applies, the limitation is not merely of the remedy, but is of the right of action itself. The right is given subject to the limitation, and a subsequent change in the period of limitation will not extend the period so as to affect an existing right of action.

See also 25A C.J.S. Death § 53B.

Appellant also argues that inasmuch as a voluntary non-suit was granted without prejudice in Vines and here, the application of the three year statute of limitation is unjust and inequitable. The rule enunciated in Vines has been the law in Arkansas for many years, and the legislature has not seen fit to amend the pertinent statutes to provide that the general tolling provision (§ 37-222) would apply, as urged by appellant, to this type of action. That case is controlling here.

Appellant next asserts that the appellee should not have been allowed to amend its answer. Appellee’s answer to appellant’s refiled action was on May 9, 1979. The amended answer was filed December 6, 1979, some seven months later. Appellant recognizes the rules of procedure allow amendment to pleadings but argues it was not in the furtherance of justice to allow the amendment in this case because the appellee had not raised the statute of limitation at the time of the granting of the nonsuit nor at any other time prior to the amended answer. Thus, it was an abuse of discretion to allow the answer.

The new rules of civil procedure became effective July 1, 1979, between the time the answer was filed and the time the amended answer was filed. Under the prior rule, the trial court had broad discretion in permitting amendments to pleadings. Steed v. Busby, 268 Ark. 1, 593 S.W. 2d 34 (1980). Under the new rules, Ark. Stat. Ann., Vol. 3 A, Rules of Civil Procedure, Rule 15 (Repl. 1979), “a party may amend his pleadings at any time without leave of the court.” Upon a motion of the opposing party, however, the court may strike an amended pleading if it determines prejudice will result from the amendment. Thus, under either rule, the matter is addressed to the court’s sound discretion. Further, it does not appear that a motion was made by appellant as is required by the new rule. The only case cited by appellant is Jones v. York, 256 Ark. 796, 510 S.W. 2d 574 (1974), in which the trial court refused to allow the defendant to amend his pleadings to plead the statute of limitation because the motion to amend was made long after trial had started and a considerable portion of the evidence had been taken. That is not the case here, as the amendment was made prior to trial. There is no abuse of discretion demonstrated.

Appellant next asserts that the survival portion of the asserted cause of action is not barred by the wrongful death limitation provisions. The statute governing the survival action, § 27-901, provides that the action “may be brought . . . in the same manner and with like effect in all respects as actions founded on contracts.” Thus, argues appellant, this statutes does not have a specific statute of limitation and does not come under the rule in Vines. However, as appellee points out, this argument was not raised in the trial court. We said in Arkansas State Highway Commission v. Polk, 250 Ark. 377, 465 S.W. 2d 671 (1971):

We do not consider the argument now made since it is raised for the first time on appeal. Not having presented the issue now argued to us to the trial court, appellant is not now in a position to claim that the trial court committed error.

Affirmed.

Purtle, Stroud and Mays, JJ., dissent.

John I. Purtle, Justice,

dissenting. I dissent from the majority opinion because in effect the majority holds Ark. Stat. Ann. § 37-22 (Repl. 1962) to be useless. The nonsuit statute clearly states that a person has one year after a non-suit to bring the action again. Also, I feel the appellant was prejudiced by the action of the trial court in permitting her to take a nonsuit without prejudice of her right to refile again within one year.. Clearly, appellant would not have taken a nonsuit had she not relied upon the nonsuit statute.

In my opinion, Vines v. Arkansas Power & Light Company, 232 Ark. 173, 337 S.W. 2d 722 (1960), and any other cases holding to the same effect, should be overruled. There is no way to harmonize the wrongful death or damage statutes of limitations with the nonsuit statute unless we give the nonsuit statute its plain interpretation. Therefore, I would reverse and allow the appellant to refile the suit.

I am authorized to state that Stroud and Mays, JJ., join me in this dissent.


author: Darrell Hickman, Justice.

text:
    Otha Lee CONLEY v. STATE of Arkansas
    CR 80-7
    607 S.W. 2d 328
    Supreme Court of Arkansas
    Opinion delivered October 27, 1980
    Rehearing denied December 8, 1980

      Harold L. Hall, for appellant.

      Steve Clark, Atty. Gen. by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Otha Lee Conley was convicted of burglary, kidnapping, aggravated robbery, and two counts of rape. He was sentenced by the Pulaski County Circuit Court to a total of 120 years imprisonment. On appeal he argues that four errors were committed during his trial: The judge failed to excuse a prospective juror for cause; an instruction was improperly denied; the defendant was denied a speedy trial; and, the defendant was twice placed in jeopardy.

The testimony reflects that early on the morning of July 24, 1978, Conley entered a Little Rock residence, forced a twenty-one year old female at knife-point to leave the residence, raped her three times, twice by sexual intercouse and once by forcing her to perform an act of oral sex on him. (He was only charged with two counts of rape.)

The first error alleged in that the judge failed to excuse for cause a prospective juror who indicated bias. When questioned, the prospective juror said he knew of a similar rape case where the defendant was “let off’ and this could affect his judgment. He indicated that it would be hard for him to be unbiased and if it came to a fifty-fifty proposition he did not believe that he could lean toward the defendant. After these statements were made the trial judge questioned this venireman and somewhat rehabilitated him, denying a motion to dismiss for cause. The defense excused this prospective juror, using one of its peremptory challenges. This prospective juror should have been excused for cause. The candid answers could not be overcome by routine responses, upon prompting by the court, to the effect that the evidence could be fairly weighed. While a trial court should never hesitate to clear up uncertainties created by voir dire examinations, there is a point beyond which a prospective juror cannot be rehabilitated. This was one of those cases.

Despite the judge’s failure to excuse, Conley’s counsel accepted the twelve jurors who were ultimately seated; he had exhausted his peremptory challenges but he made no showing at all that he was forced to accept any juror against his wishes. In two cases exactly on point we found no reversible error when a peremptory challenge was used and the record failed to disclose that an undesirable juror was forced on the objecting party. Arkansas State Highway Comm. v. Dalrymple, 252 Ark. 771, 480 S.W. 2d 955 (1972); Green v. State, 223 Ark. 761, 270 S.W. 2d 895 (1954). In Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670 (1970) the defense used some of its peremptory challenges to remove unacceptable veniremen, but the defense made a record that had it not been required to use all of its peremptory challenges, a particular juror who was seated would have been challenged. In Glover we found that the error had been preserved and reversed the judgment.

The second argument to us is that the trial court improperly refused to give an instruction approved by the Court of Appeals for the District of Columbia in U.S. v. Telfaire, 469 F. 2d 552 (D.C. Cir. 1972). The trial court was proper in rejecting this proffered instruction for two reasons. First, the instruction contains comments on the evidence. This is a practice permitted in federal court but not in Arkansas. Ark. Const, art. 7, § 23. Second, the instruction concerned the weight to be given to identification testimony, a subject not covered by the Arkansas Model Jury Instructions on criminal law. The purpose of the Model Jury Instructions is to provide a uniform set of instructions that any trial court can use in any trial to avoid confusing jurors. Just because an offered instruction contains a correct statement of law does not mean it is error for a trial court to refuse to give it. In Wharton v. Bray, 250 Ark. 127, 464 S.W. 2d 554 (1971), we discussed the use of AMI instructions in civil cases. We said:

TOhe trial court did not err in rejecting this particular instruction even if it is a correct one. . . . The [Per Curiam Order of April 19, 1965] . . . implicitly requires the parties to request an applicable AMI (modified if necessary) or, upon tendering a substitute instruction to state into the record the reasons for which they believe that the AMI is inadequate or inaccurately states the law.

In approving the Arkansas Model Criminal Instructions in a Per Curiam opinion issued January 29, 1979, we said:

If Arkansas Model Criminal Instructions (AMCI) contains an instruction applicable in a criminal case, and the trial judge determines that the jury should be instructed on the subject, the AMCI instruction shall be used unless the trial judge finds that it does not accurately state law. In that event he will state his reasons for refusing the AMCI instruction. Whenever AMCI does not contain an instruction on a subject upon which the trial judge determines that the jury should be instructed, or when an AMCI instruction cannot be modified to submit the issue, the instruction on that subject should be simple, brief, impartial, and free from argument.

At Conley’s trial the court gave standard instructions on reasonable doubts and credibility of the witnesses. The victim testified that she was with her assailant for a period of approximately one hour, recognized his voice, and had an opportunity to see him. The defense counsel was able to argue to the jury the lack of accuracy and the weight to be given to her identification testimony.

The test to be applied in a criminal case on whether it is error to refuse an instruction was recited in Henderson v. Kibbe, 431 U.S. 145 (1977). That test is: Does the omission infect the entire trial so that the resulting conviction violates due process? In Henderson the court pointed out that the burden of showing prejudice is much heavier where an instruction on a subject is omitted than it is where an erroneous instruction is given because “An omission, or an imcomplete instruction, is less likely to be prejudicial than a misstatement of the law.” There, as here, the court considered the fact that the content of the missing instruction had been covered completed in the arguments of counsel, and consequently, found no prejudice.

Conley also argues that the case should have been dismissed because he was denied a speedy trial. Actually, the argument is based on a misconception of Rule 28.1(a), Arkansas Rules of Criminal Procedure. That rule provides that a criminal defendant may be released from jail if he is not tried within nine months; but the rule does not provide that he is entitled to an absolute discharge. Wallace v. State, 270 Ark. 17, 603 S.W. 2d 399 (1980). Conley was charged September 19, 1978, and tried September 14 and 15th, 1979- Three terms of court had not passed during this period of time — a fact that would have entitled Conley to be absolutely discharged. Since Conley made no motion to be released from jail and since three terms of court had not passed, he is not entitled to relief pursuant to Rule 28.1(a).

Finally, Conley argues that he was placed in double jeopardy because of consecutive sentences imposed upon him. Actually, his argument is that his conduct was a continuing course of conduct and he could not be sentenced consecutively for burglary, kidnapping, aggravated robbery, and two counts of rape. The test is whether the same act of transaction constitutes a violation of each separate offense. Irby v. United States, 250 F. Supp. 983 (D.C. Cir., 1965). Every allegation was for a separate crime and the proof went to separate crimes. The burglary related to entering the residence. He stole the $10.00 while using a knife. He took the victim from the residence and forced her to another place. He raped her by sexual intercourse and then later required her to perform a separate act of oral sex on him, which is also considered rape. This sort of misconduct is not the “continuing course of conduct” that the criminal code refers to. The examples given of offenses that would amount to uninterrupted conduct are nonsupport and promoting prostitution. Ark. Stat. Ann. § 41-105, Commentary. The criminal code does not excuse a defendant for multiple crimes committed during an escapade; at the same time it does not permit multiple punishment for an offense that is simply cumulative.

Conley’s argument that because the burglary and kidnapping charges each required a finding that a felony had been committed, this necessarily made a merger of these charges. This argument must fail. Obviously one can commit theft in conjunction with burglary and one can commit rape as well as kidnapping. They are distinct offenses for which one can be charged, convicted and sentenced.

Affirmed.


author: John I. Purtle, Justice.

text:
    Wayne Terrell LEE v. STATE of Arkansas
    CR 80-97
    609 S.W. 2d 3
    Supreme Court of Arkansas
    Opinion delivered October 27, 1980

      E. Alvin Schay, State Appellant Defender, by: Ray Hartenstein, Chief Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

The appellant was tried before a jury and convicted on three counts of second degree forgery in violation of Ark. Stat. Ann. § 41-2302 (Repl. 1977); one count of theft by receiving in violation of Ark. Stat. Ann. § 41-2206 (Repl. 1977); and criminal possession of a forgery device in violation of Ark. Stat. Ann. § 41-2312 (Repl. 1977). He was sentenced as a habitual offender after having been found guilty of four or more prior felony convictions.

On appeal the argument is that the evidence was insufficient to support the verdicts. We disagree with the appellant except as to Count 10 which was the conviction of theft by receiving.

The Little Rock Police Department obtained a search warrant for the premises at 9019 Rodney Parham Road, Apartment A, Little Rock, Arkansas. The warrant was served on February 1, 1979, at a time when the appellant was the only person present at the premises. The officers found a machine which was used for the purpose of writing money orders and has also been referred to as a check protector. They also found a briefcase in one of the bedrooms which contained the checks involved in the conviction of second degree forgery! These checks were drawn on Midsouth Woodcraft Company, West Helena, Arkansas, and each was in the amount of $158.66. Each check bore the signature of Clyde Horton. Also in the briefcase was a check for $11,-687.50 payable to J. & M. Associates at 9101 Rodney Parham Road, Little Rock, Arkansas. The maker of this check was Stuart Ford Company, Inc. Additional items in the briefcase were the identification and savings account cards of Ealgie Gilbert, Jr. and some of the appellant’s checks which he had previously reported as having been stolen. The officers also found in the same bedroom several pictures of the appellant as well as medicine bottles with his name on them.

The briefcase containing all of the articles upon which the charges were based, except the check writing machine, was found in the same bedroom with the other items mentioned. The north bedroom contained a bed and a dresser. There was no covering on the bed nor anything in the dresser. The closet was also empty. The north bedroom appeared to be unoccupied. When the officers asked the appellant to open the briefcase he stated that he could not. Thereupon, the officers cut it open with a knife and discovered the items previously mentioned.

Appellant’s brother, Ealgie Gilbert, Jr., testified he had formerly jointly occupied the premises with the appellant but he moved out about the last part of 1978. Ealgie Gilbert, Jr., an employee of the post office, stated that he saw Larry Gilmore moving into the premises after he had moved out. Gilbert further testified that he had never seen his brother with a briefcase which resembled the one in question but that he had seen Larry Gilmore with a similar briefcase in his possession at the premises on Rodney Parham Road. He further testified that Doris Jackson and Colette Finley were at the 9019 Rodney Parham address on several occasions when he visited after he had moved out. Gilbert had occupied the south bedroom when he lived at the address. This is the same bedroom in which the items in question were discovered. He also testified that the check to J. & M. Associates from Stuart Ford Company had arrived at the 9019 Rodney Parham address while he still lived there. He testified it was customary for him and the appellant to place misdelivered mail on the television until the person to whom is was addressed came to pick it up. Apparently, mail for former occupants of this address continued to arrive after appellant and his brother moved in. Gilbert and the appellant shared the expenses and rent of the apartment while they lived together. The apartment was rented by appellant in his name.

Sometime prior to the trial Larry Gilmore died. The record does not disclose the day of his death. Wanda Dokes testified that she knew the appellant and Larry Gilmore. In fact, she dated Gilmore in January of 1979 during which time she stated he lived at 9019 Rodney Parham. She further stated Larry Gilmore had been in possession of a briefcase and she had observed him carrying it upstairs to the bedroom. She further testified that Gilmore tried to get her to cash some checks which she knew were not hers. She refused to participate in the scheme. The record does not reveal if Larry Gilmore was alive on February 1, 1979, the date of the search of the premises.

The central issue of the case before us is whether appellant had constructive possession of the items which were used to convict him. We quoted from another jurisdiction in Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976), when we stated:

Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.

Thus, it was incumbent upon the state to prove that the appellant was in exclusive possession of the contraband or that he had joint dominion and control with another. If the appellant was either in exclusive control of the place where the contraband was found or in joint control with another person, he could have been found to be in possession for the purpose of the charges here in question. Appellant relies upon the case of Ravellette v. State, 264 Ark. 344, 571 S.W. 2d 433 (1978). We do not think Ravellette controls because the premises were admittedly jointly occupied by the accused and a codefendant. In fact, the codefendant was found in the resident jointly occupied by him and Ravellette. In the present case the state obviously relies upon the circumstantial evidence that the appellant was the sole occupant of the premises at the time of the search. There is no doubt that appellant and many of his personal property items were found on the premises. Also, several witnesses testified the appellant actually lived at that address. The evidence is more than sufficient to show that appellant did reside at the searched premises.

Obviously, it is the intent of the appellant to show that Larry Gilmore was also an occupant and shared control of the premises with the appellant. However, the physical evidence clearly indicates only one bedroom was occupied.

The test of upholding a jury verdict in a criminal case is whether there was substantial evidence to support the verdict. Cary v. State, supra. Under the circumstances of this case we feel that there is substantial evidence to support the finding of the jury that the appellant was in possession of the contraband.

It is true from the representative from the 7-11 Stores stated the check protector or money order machine was not reported missing to the police until early February. This would be subsequent to the date of the search. However, the witness stated he was not sure of the date and he very definitely identified the machine as the one belonging to his company. The fact that the exact date the machine was taken is uncertain is not fatal to the charge in this case. Therefore, we think the identification of the machine was sufficient to uphold the conviction on this count. From the testimony the jury could have found the machine was stolen prior to February 1, 1979-

Count 10 involved appellant’s possession of a check from Stuart Ford Company, Inc. to J. & M. Associates. The evidence in the record indicates this check was delivered by mistake to appellant’s address. Ark. Stat. Ann. § 41-2206(1) (Repl. 1977) states:

A person commits the offense of theft by receiving if he receives, retains or disposes of stolen property of another person, knowing that it was stolen, or having good reason to believe it was stolen.

There is no evidence whatsover in the record indicating appellant knew this check was stolen. In fact, the only evidence, other than the existence of the check, is that it was delivered by the postal service to the wrong address.

The trial court is affirmed on Counts 7, 8, 9 and 12; the conviction on Count 10, theft by receiving, is reversed and dismissed.

Affirmed in part; reversed and dismissed in part.

Mays, J., not participating.