author: John F. Stroud, Justice. Darrell Hickman, Justice,

text:
    Loy P. RODGERS et al v. Lyle EASTERLING, Hempstead County Tax Assessor et al
    80-89
    603 S.W. 2d 884
    Supreme Court of Arkansas
    Opinion delivered September 15, 1980

      Honey & Rodgers, Prescott, for appellants.

      Charles M. Walker, Deputy Pros. Atty., 8th Judicial District, Hope, for appellees.
   John F. Stroud, Justice.

This is a taxpayers’ suit seeking to have the 1979 reassessment in Hempstead County declared void and seeking an order prohibiting the assessor, clerk and tax collector of Hempstead County from levying or collecting the 1979 taxes based on the reassessment. We agree with the action of the chancellor in dismissing the suit.

In 1977 the Hempstead County Equalization Board hired an appraisal firm to prepare a county wide reappraisal. This was motivated by its desire to increase above 18% the average ratio of the assessed value of all property in the county to the actual value of the property as certified by the Public Service Commission’s Assessment Coordination Division so that turn-back funds withheld pursuant to Ark. Stat. Ann. § 84-477 (Repl. 1980) would be released to the county. TheHempstead County Equalization Board attempted to implement the reappraisal in 1978, but they were enjoined by the Hempstead County Chancery Court from doing so in February of 1979. The court based its ruling on its findings of defective notice to landowners and lack of a quorum at several meetings of the Board. Subsequently, appellee Easter-ling, the county tax assessor, again sought to implement the reappraisal, sending out notices to Hempstead County landowners on July 1, 1979.

On July 17, 1979, appellants filed this taxpayers’ suit against appellees seeking to have the suit certified as a class action, seeking to have the 1979 reassessment declared illegal, and requesting an injunctive order that the 1979 taxes be collected in the amounts assessed prior to the reassessment. Appellants urge as the basis of the relief sought a finding by the Circuit Court of Pulaski County, entered on October 31, 1978, and affirmed by this Court on June 25, 1979, in Arkansas Public Service Comm. v. Pulaski County Board of Equalization, 266 Ark. 64, 582 S.W. 2d 942 (1979), that assessments of real property at other than present market value are violative of Article 16, § 5 of the Constitution of Arkansas. It was stipulated in this case that neither the 1979 reappraisal nor the prior appraisal was based on the current market value approach. On December 14 the circuit court of Pulaski County reissued its decision of October 31 and entered an order requiring the Assessment Coordination Division of the Public Services Commission to develop a plan under which all 75 counties would reassess at current market value over the five year period beginning January 1, 1980, at the rate of 15 counties each year. The order required the counties to be ranked in the order of disparity between assessed value and market value, with the process to begin with those counties having the greatest disparity. It was further stipulated that the 1979 reassessment raised Hempstead County from less than 18% to over 20% and, accordingly, the Assessment Coordination Division scheduled Hempstead County with the last 15 counties to be reappraised.

Appellees contend that they were not parties to the Pulaski County suit and were not bound by the decision of the Pulaski County Circuit Court until it was affirmed by this court on June 25, 1979, and that even then they were not precluded from effectuating the 1979 reassessment. Appellees also contend that the taxpayers’ suit brought by appellants failed to show that they had no adequate remedy at law. This case was submitted to the trial court on the pleadings, briefs, and a stipulation of facts, and on December 19, 1979, that court’s memorandum opinion was issued. The court refused to certify the case as a taxpayers’ class action, dismissed the actions of the named individuals due to the lack of any showing of prejudice to them by the 1979 reassessment, and referred these individuals to the Hempstead County Board of Equalizaion for redress of their grievances, noting their remedy at law. Alleging that the trial court erred in these findings and in not granting the. relief they sought, appellants bring this appeal.

Any landowner with a complaint as to the assessment of his property taxes has the right, if timely exercised, to petition the county board of equalization for adjustment of his taxes pursuant to Ark. Stat. Ann. § 84-708 (Repl. 1980), which also provides for appeal of the board’s decisions to the county and circuit court. Here, the parties stipulated that all of the plaintiffs in this case did appear before the County Equalization Board for adjustment of their individual assessed values and those who desired to appeal to the county court did so. We need not discuss each of the reasons given by the chancellor for dismissing this case, as we agree that the plaintiffs had an adequate remedy at law. Equity has no jurisdiction where there is a complete and adequate remedy at law. Rockefeller v. Hogue, 246 Ark. 712, 439 S.W. 2d 805 (1969).

Although we rarely discuss the merits of an appeal when we sustain the dismissal of the case, we think it appropriate to do so here due to the significance of the matter and its possible effect on the actions of other counties. The basis of the controversy was whether the reassessment of property in Hempstead County in 1979 was proper when viewed in light of this court’s opinion in Arkansas Public Service Comm., supra. Appellants urge that the decision of the Pulaski County Circuit Court, and the subsequent affirmance of that decision by this court, precluded appellees from reassessing at other than current market value. They argue that following that decision the status quo should have been maintained, and that the 1979 taxes should have been levied at the previous assessment. Appellants’ argument is tantamount to saying that the 1979 reappraisal is void for failure to utilize the current market value approach, but because the tax result is more favorable even though it is also void for the same reason. Appellees, however, contend that since the reappraisal was already in progress and, when implemented, resulted in a more equitable assessment of property taxes, their actions came within the scope of the latitude allowed by Arkansas Public Service Comm., supra. Affirming the order and judgment of the Pulaski County Circuit Court, this court said, 266 Ark. at 82:

In the final part of its order, the trial court, . . . framed a remedy (to avoid undue disruptions) which allows until the end of 1979 for the PSC to complete preparation of an implementation plan and working manuals to be used therein, and further provides that a statewide reassessment program shall begin January 1, 1981, using 15 counties each year . . .
. . . this remedy furnishes sufficient time for planning by the counties and the state to achieve a proper level of taxation by adjustment of millage. adjustment of the 209c ratio required, or by constitutional amendment. (Emphasis added.)

We think the 1979 reassessment in Hempstead County was an act taken to achieve a more proper level of taxation and, as such, was not illegal or contrary to the decision of this court 'vex Arkansas Public Service Comm., supra. The judgment of the trial court is affirmed.

Affirmed.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I feel bound to concur in the majority’s decision because of our decision in Arkansas Public Service Commission v. Pulaski County Board of Equalization, 266 Ark. 64, 582 S.W. 2d 942 (1979).

In that case we decided that any assessment that was not based on market value was illegal and in violation of the Arkansas Constitution. The appellants are correct in saying that the latest 1979 assessment of property in Hempstead County is illegal because it was not based on market value. However, in the Pulaski County case the majority decided to give some counties in Arkansas five years in which to conform to the law. It was in that regard that I disagreed with the majority because 15 counties in Arkansas will have to pay taxes for five years at market value and 15 counties will not. That practice was, in my judgment, discriminatory and in violation of the Equal Protection Clause of the United States Constitution. I still feel that way. However, the decision was not appealed and binds me and the State of Arkansas to the principle that for five years some counties will not have to assess property at fair market value. Hempstead County falls in that category. Therefore, its latest assessment for 1979 was not in violation of the law as announced in Arkansas Public Service Commission v. Pulaski County Board of Equalization, id.

Hempstead County had the right to rely upon the decision in the Pulaski County case and that is what it has done. Actually, the appellants do not want their property taxed at fair market value. They want the first 1979 assessment to stand. That assessment was at a lesser rate — equally illegal.

For these reasons I concur in the majority’s decision.

      The opinion of the Pulaski County Circuit Court, affirmed by this court, directs that the reassessment of the first 15 counties shall take place from January 1, 1980, through December 31, 1980, and that the values determined shall be used by the assessors of those 15 counties as of January 1, 1981.


source: Caselaw Access Project

author: Ernie E. Wright, Chief Judge.

license: Public Domain

text:
    Paul D. MORRISS, Jr. v. B. J. WYNIA
    CA 79-305
    603 S.W. 2d 482
    Court of Appeals of Arkansas
    Opinion delivered September 17, 1980

      Patten, Broten, Leslie & Davidson, by: Charles A. Broten, Little Rock, for appellant.
    No brief for appellee.
   Ernie E. Wright, Chief Judge.

Appellant brought suit seeking recovery of wages and expenses paid appellee while appellee attended a bowling equipment mechanics’ school for four weeks with the understanding appellee would work for appellant at least a year. The suit also sought recovery of funds loaned appellee. The court at the conclusion of a trial without a jury found against the appellant and denied recovery of wages and expenses paid appellee while he attended the school, and rendered judgment for appellant for the recovery of $300.00 for the unpaid part of.a loan.

On appeal appellant contends the court erred in failing to enter judgment for appellant for recovery of wages and expenses paid appellee while attending the school on the ground appellee worked only seven weeks and four days for appellant after completing the special training and then quit. The evidence is undisputed that the parties had agreed orally that appellee would work at least a year for appellant upon completion of the training, that appellant paid appellee in wages and expenses $1300.00 while appellee took the special training, and that he quit his job with appellant after working less than eight weeks upon completion of the special training.

There was no evidence of any agreement that appellee would repay the wages and expenses paid appellee while he attended school in the event he failed to work a year for appellant. There was no allegation of damages sustained by appellant as a result of breach of the employment agreement by appellee. Likewise, there was no evidence of any actual damages suffered by appellant as a result of the breach. As stated in Blair v. United States for Use and Benefit of Gregory-Hogan, 150 F. 2d 676 (8th Cir. 1945), the fundamental basis for an award of damages for breach of contract is compensation lor the losses flowing from the breach. The court there pointed out that it is possible for a breach to occur without causing damage.

Appellant also contends the court erred in finding appellee had met the burden of proof on repayment of a $200.00 loan.

Appellee admitted receiving a $200.00 loan from appellant’s manager and soon thereafter receiving a $350.00 loan from appellant. It is undisputed appellee repaid $50.00, and he testified he repaid appellant’s manager $200.00 upon receipt of the $350.00 loan. This was denied by the manager and the manager testified appellant reimbursed him for the $200.00 loan he personally extended to appellee. Upon the conflicting testimony of the manager and appellee the court found that appellees had repaid the manager the $200.00 personal loan. On appeal we accept the finding of fact made by the trial court unless it is clearly erroneous, and we recognize the superior opportunity of the trial court to judge the credibility of witnesses. Rule 52, Rules of Civil Procedure. We cannot say the finding of the trial court was clearly erroneous.

Affirmed.


text:
    Christine E. HAMMER v. INTERMED NORTHWEST and ROCKWOOD INSURANCE COMPANY
    CA 80-253
    603 S.W. 2d 913
    Court of Appeals of Arkansas
    Opinion delivered September 17, 1980
    Rehearing denied October 22, 1980

      Robert R. Cortinez, Little Rock, for appellant.

      Thomas M. Bramhall, Little Rock, for appellees.
   Ernie E. Wright, Chief Judge.

The appellant Christine E. Hammer brings this appeal from the decision of the Workers’ Compensation Commission finding that she had failed to establish her right to further compensation benefits by a preponderance of the evidence and denying her claim.

The appellant, on January 11, 1978, sustained a compensable injury to her back and right leg when she fell in the course of her work for appellee Intermed Northwest. Prior to filing her claim, appellees paid claimant’s medical expenses and total temporary disability benefits from June 12, 1978 to February 2, 1979. A hearing was held on April 19, 1979, before the administrative law judge to determine whether claimant was entitled to further disability benefits. The judge found claimant’s healing period ended February 2, 1979, and that no disability from the injury existed after that date. Further benefits were denied. On appeal the Commission adopted the findings of the administrative law judge and denied the claim for further benefits.

For reversal appellant contends the evidence shows claimant continued to be temporarily totally disabled as a result of the injury, is unable to work, and that she would still be able to work but for the compensable injury.

The issue on appeal is whether there is substantial evidence to support the findings of the Commission. If so, the decision of the Commission based on such findings will be affirmed on appeal. Where the evidence is conflicting it is within the province of the Commission to weigh the evidence and draw any appropriate inferences therefrom. King v. Puryear Wood Products, 254 Ark. 452, 494 S.W. 2d 123 (1973).

The claimant was 54 years of age and sustained a strain to her back and a sprain to her right knee when she fell while working. X-rays and other examinations failed to reveal any bone fracture. She was treated conservatively by her physician, Dr. Lester, who saw her on several occasions. On January 31, 1979, Dr. Lester reported he felt claimant could attempt to return to work. Claimant returned to work February 3, 1979, and worked three days. She developed a headache and discontinued working. She now does light housework and some yard work.

The evidence shows appellant is five feet tall and her weight varies from 280 to 290 pounds. She has significant hypertension with blood pressure of 210/100. She was obese prior to the injury and her excessive weight and hypertension are not attributable to the injury. Dr. Blankenship, who examined claimant on February 21, 1979, testified in a deposition his only objective finding that could explain part of her complains of pain is her obesity which he characterized as voluntary. He stated that from an objective standpoint the claimant has no disability from the injury. His report dated February 29, 1979, concluded by stating:

It is my feeling, however, that this lady can resume her present job if she so desires.

When Dr. Blankenship was asked the question in his deposition as to what was claimant’s permanent partial disability, his answer was, “Okay, it’s none.”

Although the claimant’s own testimony and some medical evidence tended to show claimant suffered disability after February 2, 1979, the date determined as the end of the healing period, and that the injury was a factor in the continuing disability, we conclude there is substantial evidence to support the finding the healing period ended February 2, 1979, and that claimant suffered no disability resulting from the injury after that date. There is substantial evidence to-"" support the view that if claimant was disabled, the disability was a result of obesity and hypertension and not attributable to the injury.

Secondly, appellant contends compensation should not be forfeited unless an injured employee has had the opportunity to refuse medical treatment at the employer’s expense.

There was no finding by the administrative law judge or the Commission that appellant forfeited compensation benefits for refusal of medical treatment. The claimant testified she knew her weight was a problem and that on her own volition she went to a physician in August, 1978, to participate in a weight reduction program. Her treating physician did not prescribe enrollment in a formal professionally supervised weight reduction program. Her entry in the program was her own decision. She lost a few pounds, but did not follow through with the program. The record does not support appellant’s contention she was denied benefits for failure to follow through with the weight reduction program for her overweight condition which had existed prior to the injury.

Affirmed.


author: James H. Pilkinton, Judge.

text:
    J. H. WRIGHT et ux v. ALLMON-MACK AGENCY, INC.
    CA 80-160
    603 S.W. 2d 483
    Court of Appeals of Arkansas
    Opinion delivered September 17, 1980
    Rehearing denied October 22, 1980

      Homer Tanner, North Little Rock, for appellants.

      Gardner & Gardner, Russellville, for appellee.
   James H. Pilkinton, Judge.

The only question involved in this appeal is the correctness of the trial court’s ruling sustaining a demurrer to the complaint.

J. H. Wright and wife, the appellants, filed an action in the Circuit Court of Pope County, Arkansas, against AllmonMack Agency, Inc., an abstract company, the appellee, alleging damages. The complaint alleged that Mr. and Mrs. Wright purchased certain lands at a judicial sale in Russellville on February 11, 1976. The complaint stated that as a prerequisite and condition to purchasing the property, plaintiffs demanded that they first be furnished an abstract of title, for examination by an attorney of their choice; that an abstract was compiled by the defendant and was certified to February 17, 1976. The complaint further alleged that the abstract was then examined by plaintiffs attorney, and title approved by him on March 11, 1976. The complaint further set out that on the same day Mr. and Mrs. Wright paid the commissioner in chancery for the property. The complaint alleges that the commissioner’s sale was confirmed by the Pope Chancery Court on March 11, 1976, the commissioner’s deed was approved, and that the deed was delivered to the plaintiffs on the same day. The complaint alleges that the abstract was defective as the abstract company had omitted certain deeds which affected the title. The omitted deeds disclosed ownership in a third party of a portion of the land sold at the judicial sale. The complaint further set out the following:

By virtue of the inadvertence and negligence of the defendant abstracter to properly prepare and compile an abstract of title covering all of the chain of title of the lands endeavored to be covered by the said defendant abstract company, the plaintiffs were induced to act to their detriment and to pay an excessive amount for the purchase of their property, which they do not legally own by virtue of the ownership of the said DENTON BOZE, aforesaid. That a dwelling house is situated upon said property.

It was further alleged that appellants were damaged in the sum of $10,000 due to the failure of title to a part of the land purchased at the judicial sale.

Appellee filed a demurrer to this complaint alleging it did not state a cause of action. Ark: Stat. Ann. § 27-1115 (Repl. 1962). The trial court sustained the demurrer. Rather than seeking to amend their complaint, appellants elected to stand on it as drawn and declined to plead further. The court dismissed the action and this appeal is from that order. The trial court’s order was based solely on the inadequacy of the complaint as the record contains no discovery or other activity-

Appellants contend the complaint stated a cause of action. It is true that an abstract company may be liable in damages for injuries resulting from wrongful or negligent errors, defects, or omissions in abstracts prepared and furnished by it. However, it was settled in this state by an early decision of the Arkansas Supreme Court that an abstracter’s liability is not in tort, but is contractual. Talpey v. Wright, 61 Ark. 275, 325 S.W. 1072. That is to say, a claim of this type is founded upon a breach of an expressed or implied contract with the customer or client to furnish him with a true and correct abstract. That also seems to be the general rule in other jurisdictions. 1 C.J.S., Abstracts of Title, Section 11(a). In Talpey v. Wright, supra, the Arkansas Supreme Court held that there must be privity of contract between the abstracter and the person attempting to hold the abstracter liable in damages for an omission. In the complaint before us it is not alleged on whom the demand for an abstract was made. It is also not alleged that the defendant-appellee knew the purpose for which the abstract was to be used. There is no allegation in this complaint from which we can properly infer that appellee contracted with Mr. and Mrs. Wright to prepare an abstract for their use and benefit; or from which we can infer that appellee knew the abstract in question was intended for the use and benefit of appellants. In other words, this complaint seems to allege reliance, but does not allege any facts upon which the right to rely may be inferred. A demurrer admits all facts alleged but not conclusions. May v. Ryder Truck Rental, Inc., 264 Ark. 751, 574 S.W. 2d 264 (1978). The basic defect in this complaint is its failure to contain any factual allegations showing a right in plaintiffs, either expressed or implied, to rely on the abstract furnished. 1 Am. Jur. 2d, Abstracts of Title, § 25. We find therefore that the demurrer was properly sustained. Talpey v. Wright, supra.

Affirmed.

      This type of pleading has been superseded by the new Arkansas Rules of Civil Procedure.

      This case was referred to in St. Paul Fire and Marine Insurance Co. v. Crittenden Abstract & Title Co., Inc., 255 Ark. 706, 502 S.W. 2d 100 (1973).


text:
    Bonnie Pearl PARRIS v. STATE of Arkansas
    CA CR 80-27
    604 S.W. 2d 582
    Court of Appeals of Arkansas
    Opinion delivered September 17, 1980

      E. Alvin Schay, State Appellate Defender, by: Ray Hartenstein, Chief Deputy Defender, Little Rock, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., Little Rock, for appellee.
   James H. Pilkinton, Judge.

Bonnie Pearl Parris was convicted in Jefferson County Circuit Court of burglary in violation of Ark. Stat. Ann. § 41-2002 (Repl. 1977) and was sentenced to three years imprisonment, all suspended. She was also convicted of theft of property in violation of Ark. Stat. Ann. § 41-2003 and was given a two-year suspended sentence. In addition appellant was convicted of arson in violation of Ark. Stat. Ann. § 41-1902 and sentenced to three years with one year suspended on the arson conviction.

Appellant filed a timely motion to suppress the evidence of her purse, and a motion in limine. Appellant first argues that the trial judge erred in admitting testimony regarding some matches found in her purse.

At a pre-trial hearing held on appellant’s motion to suppress, and on her motion in limine, the facts surrounding the alleged illegal search were developed. The testimony of Phillip E. Jonio, a criminal investigator for the Jefferson County Sheriff s Department is uncontradicted. Officer Jonio testified that Mrs. Parris had been stopped and detained by another officer at a service station in Pine Bluff. When he arrived at the service station, Officer Jonio placed appellant under arrest for arson and verbally advised Mrs. Parris of her rights. He then transported Mrs. Parris and her son to the county jail. She was booked and advised of her Miranda rights. At that point Mrs. Parris signed a waiver of her rights, stating she had been advised of her rights and wished to talk without the presence of her attorney. She was then questioned regarding her participation in the alleged crimes for which she had been arrested. Officer Jonio further testified that during the course of the interview he “asked Mrs. Parris to empty the contents of her purse upon my desk within the Criminal Investigation Division office, which she did upon my request.” Several books of matches and some box matches were found in appellant’s purse. Officer Jonio further testified that it is necessary that all personal effects be inventoried at the jail and this was done in the case of Mrs. Parris. The trial court determined that the search was incident to a lawful arrest and therefore valid. The matches found in the purse were not actually introduced into evidence by the State, but Officer Jonio did testify about finding the matches in appellant’s purse after her arrest.

Appellant argues that the search of her purse was not authorized as incidental to her arrest nor as a routine police inventory. The record discloses that appellant consented to the search of her purse. So the question here is really whether Mrs. Parris voluntarily emptied the contents on the desk. We have no doubt that she did. Appellant did not testify at the suppression hearing, and the testimony of Officer Jonio — that when he asked her to empty the contents of her purse on the table she voluntarily did so — is not rebutted. We conclude appellant emptied the purse knowing what she was doing, and that she was well aware of her rights. In any event the Arkansas Supreme Court in Sumlin v. State, 266 Ark. 709, 587 S.W. 2d 571 (1979), stated:

A search of an individual’s personal effects is incidental to an arrest if it is conducted shortly thereafter at a jail. U.S. v. Edwards, 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974). See also, South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); Rules of Crim. Proc., Rule 12.2; and Johnson v. State, 252 Ark. 1113, 482 S.W. 2d 600 (1972).

Therefore either as an inventory, only a short time after her arrest, or as a search incidental to the arrest, these matches from appellant’s purse were properly seized and could be used as evidence. We therefore hold that the trial court did not err in admitting testimony concerning the matches found in appellant’s purse.

Appellant next argues that the trial court abused its discretion in qualifying witness Jerry Reinold as an expert in the field of arson detection and allowing his testimony regarding the nature of the fire. In its attempt to prove that the fire was not of accidental origin but had been intentionally set, the State called Sergeant Jerry Reinold, who had been employed by the Arkansas State Police for approximately ten years. Further, this witess had been employed at the state fire marshal’s office from September, 1978, through September, 1979.. He stated that he had attended several training sessions at the Arkansas Fire Training Academy and had on-the-job training under the direct supervision of the state fire marshal. He also testified that he had not only attended classes but had taught classes on the investigation of fires. While employed at the fire marshal’s office he had investigated in excess of 130 fires. On voir dire examination by appellant, Sergeant Reinold admitted that at the time of the investigation of the fire in February, 1979, he had just started his on-the-job training and did not then consider himself an expert in arson detection. However, he did testify that he considered himself an expert at the time of trial on February 19, 1980. The trial court ruled that Sergeant Reinold, although not qualified as an expert on the day of the fire, was qualified as an expert at the time he gave testimony; and the court allowed this witness to give an expert opinion at the trial. Sergeant Reinold was permitted to testify as to his observations at the time of the fire and his subsequent determination that the fire was intentionally set.

The determination of an expert’s qualifications as a witness lies within the sound discretion of the trial court. Absent an abuse of discretion, the appellate court will not reverse its finding. Smith v. State, 258 Ark. 601, 528 S.W. 2d 389 (1975).

Rules 702 and 703 of the Uniform Rules of Evidence (Ark. Stat. Ann. § 28-1001) control the admission of testimony by expert witnesses. Rule 702 provides:

Testimony by experts. — If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Rule 703 provides:

Basis of opinion testimony by experts. — The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made knoivn to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. (Emphasis added.)

The record reflects that Sergeant Reinold’s expert opinion testimony given at the trial was based upon his observations at the scene of the fire, which were supported by photographs taken at the time of the fire, and his opinion that the fire was intentionally set was based upon his conclusions drawn at the time of the trial. Appellant does not seriously argue that Sergeant Reinold was not an expert at the time of the trial when he testified and gave an expert opinion. We hold that the trial court properly admitted Sergeant Reinold’s expert testimony that, in his opinion at the time of the trial, the fire had been intentionally set. As pointed out by appellee, Sergeant Reinold’s testimony was not conclusive that the fire was intentionally set, but was merely evidence which the jury could consider in determining whether the fire was caused by arson. The rule that the jury is the sole judge of credibility of witnesses applies to the opinion of experts as well as to the testimony of other witnesses. It was for the jury to decide the weight to be given to this particular testimony. Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342 (1979).

Appellant finally argues there is sufficient evidence to support the jury verdict. We do not agree. While the evidence was mostly, if not wholly, circumstantial, that does not render it insubstantial. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975).

It is undisputed that Mrs. Parris entered the house in question, which no longer belonged to her, by breaking out a window in the master bedroom. She admitted entering the house, but denied intending to steal anything, and she denied having anything to do with setting the fire in the house. Sergeant Reinold, testifying as an expert, said the fire was intentionally set. Doug James, a painter who had been working in the area near the house, testified that he saw a truck at the house and met the truck on the road. He tried to get the driver of the truck to stop, but she would not stop. Phillip Jonio testified that he recovered a half-full container of paint thinner from the truck driven by Mrs. Parris and several books of matches from her purse. Mrs. Parris also admitted having some kerosene in the truck. Appellant admitted that she was in the house at the approximate time the fire was started; however, she denied starting the fire. An appellate court does not attempt to weigh the evidence or pass on the credibility of witnesses, and jury findings are not disturbed on appeal unless there is no substantial evidence to support the verdict. Pope v. State, 262 Ark. 476, 557 S.W. 2d 887 (1977). Though circumstantial, the evidence was sufficient for the jury to conclude that appellant intentionally started the fire prior to leaving the house, and that she intended to take the two guns belonging to the prosecuting witness. Intent is a state of mind which is not ordinarily capable of proof by direct evidence, so it must be inferred from the circumstances. In some cases circumstantial evidence is the only means of proof available. Smith v. State, 264 Ark. 874, 575 S.W. 2d 677 (1979). After a careful review of the evidence we have concluded that it was for the jury to believe or disbelieve Mrs. Parris’s testimony. McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979).

Finding no error, the judgment of the circuit court is affirmed.


author: Marian F. Penix, Judge.

text:
    Cecil KENNEDY et ux v. E. R. HENRY, Jr. and Sterling HENRY
    CA 80-163
    604 S.W. 2d 585
    Court of Appeals of Arkansas
    Opinion delivered September 17, 1980

      Gibson Law Office, by: Charles S. Gibson, Dermott, for appellants.

      Gill & Johnson, .by: Marion S. Gill, Dumas, for appellees.
   Marian F. Penix, Judge.

Testator J. C. Kennedy owned 560 acres in Desha County. At his death he devised a life estate to his widow Valerie and the remainder, in equal shares, to his nephews Wilburn Kennedy and Cecil Kennedy.

Wilburn Kennedy conveyed his undivided one-half remainder interest to E. R. Henry and Sterling L. Henry, Appellees. E. R. Henry and Sterling Henry petitioned for partition as owners of one-half of the remainder interest, against Cecil Kennedy, Appellant, owner of the other one-half remainder interest. The Henrys asked for the property to be divided in kind, if susceptible, or, that the remainder interest of the parties to the litigation be sold and the proceeds divided.

The Court found the lands to be diverse and not susceptible to equitable division. The Court, therefore, ordered a sale of the property subject to the life estate. Cecil Kennedy and wife Louise Kennedy have appealed. (Louise Kennedy was made a party defendant herein in order that any right of possibility of dower, or any other interest, she might have in and to said land may be adjudicated).

The Kennedys contend the Court exceeded its jurisdictional power in ordering a partition sale of the remainder interest exclusive of the life estate.

The Henrys contend the Kennedys did not raise the question of the jurisdiction of the Court to entertain a partition action by remaindermen in land subject to a life estate by their pleadings and statements at the time of the trial. Therefore they contend the Kennedys are precluded from raising the question on appeal.

The Court, in its Findings of Fact and Conclusions, said:

While not specifically raised at trial the defendants in their brief raise the question of the jurisdiction of this court to entertain a partition action by remaindermen in land subject to a life estate. Jurisdiction in the trial court can be raised at any time and in almost any manner.

Ark. Stat. Ann. § 34-1801 provides:

Petition — Persons entitled to file — Contents. — Any persons having any interest in and desiring a division of land held in joint tenancy, in common, as assigned or unassigned dower, as assigned or unassigned curtesy, or in coparceny absolutely or subject to the life estate of another, or otherwise, ******* shall file in the circuit or chancery court a written petition in which a description of the property, the names of those having an interest in it, and the amount of such interest shall be briefly stated in ordinary language, with a prayer for the division, and for a sale thereof it shall appear that partition cannot be made without great prejudice to the owners, and thereupon all persons interested in the property who have not united in the petition shall be summoned to appear. [Emphasis supplied.]

As is evident from a careful reading of this statute, there are several requirements which must be met in order to sustain a statutory partition of land. Only one of these enumerated requirements is of concern in this case. There is no question the parties have an interest in land and there is no question the appellees desire this interest be divided. No issues have been raised with regard to the aspects of the statute dealing with the filing of a petition or its contents. A question of major importance is raised, however, when we look at the statutory requirement that the land to be divided be held in either joint tenancy, as a tenancy in common, in coparceny, as assigned or unassigned dower, or as assigned or unassigned curtesy. How and when does land become “held in” any one of these seven estates? More specifically for this case, how does one gain an interest in land which is “held in” a tenancy in common?

Ark. Stat. Ann. § 34-1801, et seq,, does not contain a definition of a tenancy in common. Absent a statutory definition, the common law definition must be used in interpreting the statute, “when the General Assembly uses words which have a fixed and well-known signification, they are presumed to have been used in that sense.” Henderson v. Russell, 267 Ark. 140, 589 S.W. 2d 565, 568 (1979); State v. Jones, 91 Ark. 5, 120 S.W. 154 (1919).

The term “cotenancy” refers to the ownership of property by two or more persons in such manner that they have an undivided possession or right to possession ... The right of each cotenant to possession is the primary essential element of all cotenancies. [Emphasis supplied] 20 Am. Jur. 2d, Cotenancy and Joint Ownership, § 1, p. 92.

In Fullerton v. Storthy Bros. Investment Co., 190 Ark. 198, 201, 77 S.W. 2d 966 (1935), the Court stated Blackstone defined cotenancy as “such as hold by several and distinct titles by unity of possession.” [Emphasis supplied]. The Court in Krickerberg v. Hoff, 201 Ark. 63, 67, 143 S.W. 2d 560 (1940) enunciated the following test ascertaining the existence of a co-tenancy: “In determining whether there is a co-tenancy of a tenancy in common, the test seems to be whether the right of possession is present.” From these cases it is evident that in Arkansas one holds an interest in land as a cotenant when one has the present right to possess the land.

Next we must determine whether the parties as remaindermen are co-tenants. Do they, as owners of the remainder, have an undivided possession or the present right to possession?

A remainder interest is defined in Black’s Law Dictionary as, “The remnant of an estate in land, depending upon a particular prior estate created at the same time and by the same instrument, and limited to arise immediately on the determination of that estate, and not in abridgment of it.” Black’s Law Dictionary, Fourth Edition, page 1456. Remaindermen are those who are entitled to the interest at the expiration of the prior estate. The appellant, as one of the devisees, and the appellees, as purchasers of the other devisees’ interest, are remaindermen. In Arkansas, a remainderman has an estate which he is not entitled to possess until the preceeding estate is extinguished. Wilson v. McDaniels, 247 Ark. 1036, 449 S.W. 2d 944 (1970); Smith v. Kappler, 220 Ark. 10, 245 S.W. 2d 809 (1952). In Ark. St. Hwy. Comm. v. Roberts, 248 Ark. 1005, 1007, 455 S.W. 2d 125 (1970), the Supreme Court stated, “there can be no doubt that a remainderman has no right to possession until the death of the life tenant.”

. . . coremaindermen are not tenants in common during the lifetime of the life tenant. For example, while a common right of possession is essential to a tenancy in common, remaindermen do not have a common right to possession. 51 Am. Jur. 2d, Life Tenants and Remaindermen, § 1, p. 215.

Because a remainderman who is dependent upon a life estate has no right to presently possess his estate, he can not be a cotenant with his fellow remaindermen. They do not share the unity of possession; hence, they cannot be tenants in common. The parties to this case have an interest in land which is subject to the life estate of Valerie Kennedy. Until this life estate expires, they, as remaindermen, have no right to possess this estate. Absent this right to possess, the parties to this lawsuit are not tenants in common. Hence, they may not invoke Ark. Stat. Ann. § 34-1801, because they do not have an interest in property “held in” one of the enumerated forms.

We are aware of cases in which the Arkansas Supreme Court has interpreted § 34-1801. While none of these cases dealt with this precise fact situation, they are supportive of this decision.

Goodlett v. Goodlett, 209 Ark. 297, 190 S.W. 2d 14 (1945) involved two parties who had been divorced. The divorce decree had awarded the wife an undivided one-third interest for life in the husband’s real property. Subsequently, the husband filed suit for partition of the real property. This petition was granted by the lower court and affirmed on appeal. As the lower court had granted her a life interest in only an undivided one-third of the property and not in the entire property, the remaining interest was vested in the husband. Because both parties were entitled to present possession, they were tenants in common and therefore entitled to partition.

In McGee v. Hatcher, 217 Ark. 402, 230 S.W. 2d 41 (1950), the Supreme Court addressed the issue of partition as between contingent remainders and the owner of a life estate, in that rare instance in which the remainderman is also a co-tenant with the holder of the life estate.

The exact question now before us is whether the owner of an undivided interest in fee is entitled to partition in kind where one of the present possessory interests is a life estate with contingent remainders. . . . (Emphasis supplied). McGee, at 405.

In McGee, the grantor, by warranty deed, conveyed to three of his four daughters an undivided one-fourth interest in the described lands, in fee simple absolute. To the fourth daughter, grantor conveyed the outstanding one-fourth interest as a life estate, the remainder to the bodily heirs of that daughter, but if there were none, then to the previously mentioned three daughters in equal shares.

In effect, this made the first three daughters both co-tenants (having one-fourth undivided interests in the whole) as well as remainders (contingent on the lack of bodily heirs) with their fourth sister who held a mere life estate in the outstanding undivided one-fourth interest in the whole.

The Court correctly ruled that the first three daughters, as contingent remaindermen, could petition for partition of the whole since they were at the same time co-tenants with the holder of the life estate. The partitioned land would then be held “subject to the life estate of another” namely the fourth daughter, as provided by the statute.

The holding in McGee then gave rise to the oft repeated, if somewhat misleading, rule that the statute allows the partition of the subject property by remaindermen. Indeed it does, if the remaindermen are also cotenants to the holder of the life estate. See, Monroe v. Monroe, and Bowman v. Phillis, cited and discussed below.

The 1956 case of Monroe v. Monroe, 226 Ark. 805, 294 S.W. 2d 338 involved a suit for partition by the life tenant. William Edward Monroe died intestate. He was survived by his widow and son. The administrator of the estate set aside 58 acres for the dower interest of Mrs. Monroe. Subsequently, Mrs. Monroe petitioned the Chancery Court for partition alleging she was the life tenant by virtue of her dower and her son Bryan was the remainderman. The Chancery Court allowed the partition and ordered the land sold. The Supreme Court reversed, stating:

We reach the conclusion that § 34-1801 does not support the decree of the Chancery Court. Mrs. Monroe, as the life tenant under dower, is in exclusive possession of the fifty-eight acres, and Bryan Monroe owns the remainder. He has no right to any possession during the life of Mrs. Monroe. Our partition statute envisages that two or more persons are at the same time entitled to possession. . . . Thus we recognized, ... , that there could be partition only when two or more persons were entitled to possession, and that the exclusive possession of the life tenant would not support partition against the remainderman. We made reference to 40 Am. Jur. p. 90 and that text on page 92 cites many cases to support this rule:
‘The decided weight of authority is to the effect that statutes authorizing chancery to partition property between coparcenors, joint tenants, or tenants in common, do not permit one who has a life tenancy only, so that there is no relation of co-tenancy between himself and his remaindermen, to compel partition as against such remaindermen, since such a statute in no way eliminates the element of cotenancy, which, in the absence of statutory elimination, is indispensable to an action for partition.’ Monroe, page 806, 808-809.

In Bowman v. Phillips, 260 Ark. 496, 542 S.W. 2d 740 (1976), the Supreme Court again reversed the allowing of partition between remaindermen and a life tenant. W. D. Phillips, Sr. conveyed 43.75 acres to his son W. D. Phillips, Jr. The deed reserved a life estate in the grantor (Sr.) granted a life estate to the son (Jr.) after the grantor’s death, and provided that upon the son’s death the property would go to the grantor’s heirs, except that the son’s wife Wanda, was also to receive an equal share. At the grantor’s death, he was survived by three children (including Jr. the holder of the life estate) and the descendants of five deceased children. Jr., as the sole life tenant brought this suit for partition along with his wife Wanda. The Chancellor found Wanda and the eight descendants each owned an undivided one-ninth and ordered the property sold.

The Supreme Court reversed, stating:

In Monroe v. Monroe, we held that the language of the statute allows the partition of property by remaindermen, subject to the life estate of another. We went on to say, perhaps as dictum but with supporting authority, that a single life tenant who is entitled to exclusive possession cannot maintain a partition suit against the remaindermen, because the necessary element of a cotenancy is absent. Bowman, at 498.

Again, the Supreme Court found there was not a cotenancy. The remaindermen were not entitled to possession.

While these cases do not specifically address the present fact situation, the language and rationale of each case speaks strongly to the need for a present possessory interest to exist before a partition may be sustained. A partition sale is a drastic equitable remedy to be employed when the land cannot be divided in kind. This remedy historically stems from the broad inherent powers of the chancellor.

The objects of partition are to avoid the inconveniences which result from a joint or common possession, and to enable the petitioner to possess, enjoy, and improve his share in severalty. If the petitioner has no estate in praesenti, but in futuro only, if he has no present immediate right of entry and possession, then there are no inconveniences of a joint or common possession of which he can complain; nor can he possess and enjoy his share in severality, which is the object he seeks to accomplish by his petition. The objects of partition cannot be subserved by a division of an estate which may not come into possesion for years after such division. 59 Am. Jur. 2d, Partition, § 170, p. 900.

Remaindermen who have no present possessory interest do not have the needs which require the drastic remedy of a partition sale and division of the proceeds. They have yet to realize any of the inconveniences which can result from common ownership and possession.

Finding there to be error as a matter of law, we reverse.

Reversed.

      The only method by which these parties could “hold in” is a tenancy in common. The will of J. E. Kennedy devised a one-half undivided interest to both of his nephews subject to the life estate of his wife. No mention is made of a right of survivorship, therefore no joint tenancy could be created. The devise is of the entire tract to nephews — this is obviously not involving assigned or unassigned dower or curtesy. Coparceny is an ancient means of holding an estate in which a group holds land with no key to how much each owns. Here, the nephews were each to receive an undivided one-half interest. The only method by which these parties may “hold” or come under the statute is as tenants in common.

      The statute provides that partition may be made “subject to the life estate of another, or otherwise.” The language “or otherwise” is not a point of contention on this appeal. However, for clarification, we point out that in Monroe v. Monroe, infra, the Court held “that the words 'or otherwise’ modified and referred to the life estate of another and did not refer to 'in joint tenancy, in common or coparceny.’ ” Monroe, at 808. We may assume, without so holding, that the “or otherwise" language may refer to an estate for term of years or a life estate per autre vie. We need not reach this point, since the language does not alter the requirement of some form of cotenancy.


text:
    Mary BOYKIN v. STATE of Arkansas
    CA CR 80-28
    603 S.W. 2d 911
    Court of Appeals of Arkansas
    Opinion delivered September 17, 1980

      E. Alvin Schay, State Appellate Defender, by: Jack R. Kearney, Deputy Defender, Little Rock, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen.., Little Rock, for appellee.
   Marian F. Penix, Judge.

Appellant Mary Boykin appeals from a judgment and conviction of theft of property. She was sentenced to one year in the Pulaski County jail after trial in the Municipal Court of Little Rock. She appealed to Pulaski County Circuit Court and waived jury trial. The Court convicted her of theft of property and sentenced her to one year in the Pulaski County jail and fined her S500.00.

Appellant argues two points for reversal. First, she contends her verdict should be reversed for lack of evidence to support a finding of guilt. Second, she alleges error in the Court’s refusal to allow certain testimony to support her defense of mistaken identity.

AvWal-Mart clerk, Chuck Cawley, saw two couples of young, black women pushing shopping carts. The clerk testified he saw appellant standing at the information booth by a cart containing an unpaid for television set and shelving. Fie said he also saw one member of the other black couple putting merchandise into another shopping cart. He then saw the appellant push the cart containing the television set out the door without paying for the merchandise. He went to the nearest cashier to use the hotline to report this to the management. He testified he at all times had his eyes on the appellant and was certain she was the person who had taken a shopping cart out containing stolen merchandise.

Eldon Hendricks, the assistant store manager, testified he responded to the call, came to the front of the store, and was told by Chuck Cawley the two women had gone out the front door. He also stated Chuck Cawley pointed to the two women whom he had seen leaving the store with the cart. The two women were walking down an aisle in the parking lot and away from the store. The shopping cart containing the television set and the shelving was between two cars where Mr. Cawley had seen them leave it. Mr. Hendricks identified the appellant as one of the women he had arrested and as one of the women identified to him as a shoplifter by Mr. Cawley.

Appellant testified she viewed all the actions described by the Wal-Mart clerk except she denies being the one who pushed the cart with stolen goods out of the store. The appellant does not contend she was not present in Wal-Mart at the time of the shoplifting incident but rather that her conviction represents a mistaken identity and that another person committed the crime for which the appellant was convicted.

Peggy Watson, a witness called on behalf of the appellant, was a member of one of the black couples seen near the exit by Mr. Cawley. She testified her friend Elaine Tillman pushed the cart out. The appellant attempted to ask Ms. Watson if Elaine Tillman had plead guilty to shoplifting for pushing the cart out of the store. The objection made by the State to this question was sustained by the Court.

We will first deal with appellant’s second point argued for reversal.

At several points during the trial, appellant attempted to question witnesses about a woman named Elaine Tillman and her possible involvement in the shoplifting. Testimony established that Elaine Tillman had been at the store on the same date, at the same time, and in the same general vicinity as appellant when the crime was allegedly committed. Appellant contends the evidence established that, not only were appellant and Elaine Tillman not together, but were so separated that should one of them have been guilty of pushing the cart out, then the other could not have been — nor could the other have been an accomplice, on the evidence before the Court. While Peggy Watson testified she was with Elaine Tillman and the appellant was not, her attempts to testify to the proceedings in Municipal Court were disallowed by the Circuit Judge.

At one point, the appellant asked Peggy Watson if Elaine Tillman had been convicted in Municipal Court. A general objection was made by the State. This was sustained by the Court:

Mr. Jenkins: Your Honor, I would like to ask the Court to rule again on the last objection. I think she can testify as to what she heard.
The Court: You asked her something that happened some place else. You asked her about something that happened in Court which you did not qualify her as being present.
Mr. Jenkins: I don’t understand what you’re saying to me Your Honor. I’m a little dense this morning, but I don’t understand why she can’t testify as to what she actually heard or saw.
The Court: You asked her a moment ago about what happened — whether they were convicted or not. I sustained the objection.
Mr. Jenkins: I thought the objection was to what Elaine said. I’m sorry.
The Court: No, the objection was: Was she convicted?

After the Court explained its reason for sustaining the objection, the appellant’s counsel did not pursue the question, attempt to lay a foundation for the question or proffer the testimony which was being excluded.

On cross-examination of Mr. Cawley (the first witness called) the following exchange occurred:

Q. Did you testify in Municipal Court in Little Rock?
A. Yes, sir, I sure did.
Q. In that proceeding did a spectator in the audience get up and tell the Court that she was the one that pushed the —
Ms. Renaud: Objection, Your Honor, that would be hearsay. •
The Court: Objection sustained.
Mr. Jenkins: Your Honor, it would not be hearsay if he heard her say it. If he can testify as to what he actually heard someone say.
Ms. Renaud: It would be an out of court statement for the truth of the matter asserted.
The Court: Is that person making a statement in the Court today?
Mr. Jenkins: Your Honor, I have not had time to subpoena her.
The Court: The objection will be sustained.

This was the first witness called. The thrust of the question was not explained to the Court. Appellant made no attempt to pursue the question or to explain to the Court the defense the appellant was using — that of mistaken identity. Again, no evidence was proffered for the record to object to the Court’s ruling.

Rule 103, Ark. Stat. Ann. § 28-1001 (Repl. 1979) states:

Rule 103. Rulings on evidence. — (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Nowhere in the record do we find compliance with this rule.

Appellant’s other point argued for reversal is there was insufficient evidence to sustain a conviction. A review of the evidence shows a positive identification of appellant by Chuck Cawley as the woman who pushed the cart containing the unpaid for merchandise out of the store. While both the appellant and Peggy Watson testified the apellant did not push the cart out of the store, the trier-of-fact gave more credence to the testimony of Chuck Cawley. The trier-of-fact was in a position to observe the witnesses and to judge their credibility. This court will not reverse a finding of fact unless there is no substantial evidence to support it. Pope v. State, 262 Ark. 476, 557 S.W. 2d 887 (1977).

Affirmed.


author: David Newbern, Judge.

text:
    Vola McDonald BABB, Widow of Dain O. BABB, Deceased v. Darrell BABB, Executor
    CA 80-145
    604 S.W. 2d 574
    Court of Appeals of Arkansas
    Opinion delivered September 17, 1980

      Mobley & Smith, by: William F. Smith, Russellville, for appellant.

      Harper, Young, Smith & Maurass, by: Robert Y. Cohen, III, Fort Smith, for appellee.
   David Newbern, Judge.

The main question on this appeal is whether an antenuptial agreement is valid. The agreement was sustained in the lower court and was held to prevent the appellant from electing to take her statutory widow’s allowance against the will of her deceased husband. We affirm because we agree with and find evidence of record to support the court’s conclusion there was no fraud or misunderstanding with respect to the agreement and it does not violate public policy.

Vola McDonald was 57 and Dain Babb was 50 when they married in 1963. Both had been previously married. Vola, the appellant, had considerably more property than Dain at that time, and the record shows, and she does not question, that she knew the extent of his assets.

The appellant testified that Dain suggested they enter an agreement so that in the event of a divorce, such as the ones he had been through, she would not have the same property troubles he had had. Such an agreement .was prepared by a lawyer selected by Dain. The agreement provided:

This agreement is made this 8th day of July, 1963, by and between DAIN OLIVER BABB, of Johnson County, Clarksville, Arkansas of the one part, and VOLA MCDONALD, of Johnson County, Clarksville, Arkansas, of the other part.
A marriage is intended between the parties, and in view of the fact that after their marriage, in the absence of any agreement to the contrary, their legal relations and powers regarding property may, by reason of some change in their domicile, or other than those which they desire to have apply to their relations, powers, and capacities.
Dain Oliver Babb and Vola McDonald, agree and declare it to be their desire that during their marriage each of them shall be completely independent of the other as regards enjoyment and disposal of all property, whether owned by either of them at the commencement of the marriage or hereafter acquired, or coming to either of them during the marriage.
Each agrees that so far as legally possible by their act all the property belonging to either of them at the commencement of the marriage, or acquired by or coming to either of them during the marriage, shall be held and enjoyed by him or her and be subject to his or her disposition as his or her separate property in the same manner as if the proposed marriage had never been performed.
Upon the death of either, the survivor shall not have and will not assert any claim, interest, estate or title, under the laws of any state, because of such survivorship, in property, real, personal or mixed of which such deceased party may die seized or possessed; and such survivor hereby relinquishes to the heirs, administrators, executors and assigns of such deceased party all of his or her claim, distributive share, interest, estate, or title that he or she would be entitled to as the surviving husband or wife and agree upon demand to execute and deliver to the heirs, administrators, executors and assigns of such deceased party all such claim, interest, estate, right or title and upon demand to execute and deliver to the heirs, administrators, executors and assigns of such deceased party all instruments that may be necessary to carry out his or her agreements herein contained.
To the proper performance of all the foregoing agreements, covenants, and stipulations, the parties hereto, respectively bind themselves, administrators, executors and assigns.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals at Clarksville, Arkansas, this 8th day of July, 1963-

The appellant testified she signed the agreement without reading it and that it was not explained to her. She said, however, that she was afraid about her property and knew about Mr. Babb’s two prior divorces. It is apparent from the appellant’s testimony she thought she would be protecting her property by entering the agreement but she knew the decedent’s property would be kept separate also. The appellant testified consistently that she thought the agreement was to be effective only upon divorce. It is also apparent from her testimony that the appellant had refused to marry the decedent and that the agreement contributed in some degree to her willingness to marry him.

The parties lived together until Dain’s death which occurred fifteen years after they married. Dain’s will left his property to his children by his first marriage. He had accumulated an estate of considerable value in his own name during the marriage to Vola. To help in the acquisition of property, Vola had given him money on several occasions and had allowed him to run cattle on her farm.

1. Fraud, concealment and misrepresentation

The appellant argues the agreement was procured by fraud, concealment and misrepresentation. The record will not sustain a contention here there was any concealment of assets held by the decedent at the time the agreement was signed. Thus, the only misrepresentation to be seriously considered is the appellant’s claim she was unaware the agreement provided she would not share in the estate of her prospective husband.

It is apparent the judge declined to believe the appellant’s testimony in this respect. In his order, the judge stated: “That the ante-nuptial agreement was knowingly entered into by the wife without any fraud or misunderstanding.” (Emphasis added.) To support this conclusion, there was evidence that the appellant owned and had managed considerably property at the time she signed the agreement. She had sold a subdivision which she had acquired from her deceased first husband and purchased her farm. She had negotiated and managed gas well royalties, had once served as executrix of an estate and was a person of sufficient education, at least, to have been a practical nurse.

The appellant relies upon Burnes v. Burnes, Adm’r, 203 Ark. 334, 157 S.W. 2d 24 (1941). In that case a 62 year old man married a 22 year old widow who was not shown to have had any property at the time the agreement was entered. The agreement, by which Mrs. Burnes specifically relinquished her dower right in Mr. Burnes’ real or personal property, was neither acknowledged nor recorded as was done here and as is required by Ark. Stat. Ann. §§ 55-301, 302 and 303 (Repl. 1971). Mrs. Burnes testified she knew nothing of the contents of the agreement she had signed. The court said the burden was on the husband’s estate to show the contract was “knowingly entered into,” and that burden was not met. The court noted that Mrs. Burnes was “wholly inexperienced in business, and had never signed any other contract.”

The factual distinctions between that case and the one before us are numerous and obvious. But even in the Burnes case, Chief Justice Smith, in a dissenting opinion in which two other justices concurred, pointed out that the court was being too protective of an adult woman who had entered an agreement with no sign of coercion and no evidence that she was unaware of the estate of her intended spouse. He said:

By reversing this case the rule is established that a woman may, by means of a written agreement, proceed with marriage and accept its benefits for thirteen years, or for any other period. She may require the husband to educate the children born of a former marriage, and admit to a witness whose credibility is not impeached that she understood her rights were to terminate with the death of her husband; then, on second thought, counter with the unsupported assertion that she did not read the contract, and was therefore not informed.
There is no clause in the contract permitting each party to ‘. . . hold or maintain [her is her] property, both real and personal, separate from the other.
If the situation were reversed, and appellant from her earnings had paid for property to which the husband took title, and it should be coveted by the intestate’s heirs, this court would unhesitatingly say that the contract gave protection.

While there was no support provision in the agreement before us and no witness said Mrs. Babb admitted knowing the contents of the agreement the theme of this dissent nonetheless rings true in this case.

The appellant contends she and Mr. Babb were “in love” and that this emotional condition was the reason she signed the contract at Mr. Babb’s request and without reading it. We need not decide whether all women of all ages are entitled to the sort of protection Mrs.. Babb seeks here, but we do hold that a woman who is 57 years old, who has some business experience and who apparently was concerned about holding on to her property which so clearly exceeded in value that of her prospective husband will not be permitted to excuse her allegedly unknowing entry into an ante-nuptial agreement by saying she was “in love.” We find the following language to be particularly applicable here:

In viewing antenuptial contracts which provide for the settlement of property rights upon death, courts invariably have begun with the realization that between persons in the prematrimonial state there is a mystical, confidential relationship which anesthetizes the senses of the female partner.
The presumption ignores those marriage agreements in which the parties have full knowledge of what they desire from the other’s estate and are far from being infatuated from each other. Thus, by invoking this presumption, the courts are ignoring the difference created by individual fact situations. While the presumption of a confidential relationship is definite and predictable, it is at the same time too indiscriminate in its automatic imposition of the confidential relationship burdens upon all who contemplate marriage. [Gamble, The Antenuptial Contract, 26 U. Miami L. Rev., 692 at 719, 720 (1972)]

The “confidential relationship” historically presumed to exist between engaged persons has been said to be the basis for the requirement that the prospective husband fully disclose his assets to the prospective wife. 2 Lindey, Separation Agreements and Ante-Nuptial Contracts, § 90 (1979). Disclosure of assets is not a problem in this case. However, this presumption of the nature of such a relationship which seems to be solely for the protection of women is indicative of the theme of antenuptial agreement cases, i.e., the intellectual domination by males of females. “[E]ven though the male’s supposed intellectual dominance over the woman is seen throughout the law of antenuptial agreements as requiring protection for the ‘weaker’ female, this premise is contrary both to the contemporary concept of the equality of women and to the freedom of mature parties to chart the rights and liabilities of their marriage relationship.” Gamble, 26 U. Miami L. Rev., supra, at p. 693.

2. Mutuality of obligation.

The argument of the appellant that Mr. Babb’s curtesy interest in her estate could have been terminated by her will overlooks the possibility that she might die intestate, perhaps because of an invalid will, and her estate would be protected by the agreement. In addition, the argument that there was lack of mutuality of obligation or consideration for an antenuptial agreement fails because marriage, alone, is consideration for the agreement. Comstock v. Comstock, 146 Ark. 266, 225 S.W. 621 (1920).

3. Agreement contemplating divorce.

The appellant argues that the agreement is void because it was made in contemplation of divorce. The agreement does not refer to “divorce.” Perhaps the second paragraph of the agreement, which is unintelligible, was meant to deal with that contingency. At any rate our supreme court has held that an agreement which is not solely intended to be operative upon divorce is not void merely because it mentions or is operative upon divorce among other contingencies. Dingledine v. Dingledine, 258 Ark. 204, 523 S.W. 2d 189 (1975); Hughes v. Hughes, 251 Ark. 63, 471 S.W. 2d 335 (1971). As we said earlier, there is sufficient evidence to support the lower court’s conclusion that the appellant entered the agreement “knowingly.” The judge had reason not to have been persuaded by the appellant’s testimony she understood the agreement would operate only upon divorce.

4. Hearsay.

The appellant’s final contention is that the testimony of witnesses as to conversations with the decedent concerning the antenuptial agreement should have been excluded as hearsay. As we read the record, the hearsay objections of the appellant were sustained, and the evidence, although extensive, was taken only as a proffer. Thus there was no error.

5. Conclusion.

This opinion has not attempted to parse all of the major Arkansas cases dealing with antenuptial agreements. That has been done in Cathey, Ante-Nuptial Agreements in Arkansas — A Drafter’s Problem, 24 Ark. L. Rev. 275 (1970) and Annot, 29 Ark. L. Rev. 480 (1976). The result in each of these cases is obviously somewhat dependent upon the facts surrounding the agreement’s execution. In this case we agree with the lower court that we are not called upon to apply the outdated principles with which our supreme court has had to struggle for the protection of this appellant who cannot be said to be a woman who has, in a moment of giddy, romantic infatuation, cast the dye for a future as a homeless pauper. There may be men and women, even in this age, could be unduly oblivious because of such feelings, and perhaps the law should protect them from themselves. The protection rendered, however, if it is to be continued, should be equal. Reminiscent of Chief Justice Smith’s dissent in the Burnes case, supra, we would not seriously doubt the outcome had Mr. Babb, upon divorce or death of Mrs. Babb, been able to say Mrs. Babb procured the agreement and he signed it without reading it and needed to be protected from the provision precluding him from taking any of her property because he was “in love” when he signed.

Affirmed.


author: David Newbern, Judge. George Howard, Jr., Judge,

text:
    J. P. PRICE LUMBER CO. v. Charles L. DANIELS, Director of Labor and Ronnie GASTON
    E 80-22
    604 S.W. 2d 579
    Court of Appeals of Arkansas
    Opinion delivered September 17, 1980

      Ross & Ross, by: James A. Ross, Jr., Monticello, for appellant.

      Herrn Northcutt, Little Rock, for appellees.
   David Newbern, Judge.

The question on this employment security benefits appeal is whether the board of review’s decision in favor of the employee may be sustained in view of the fact that the employee declined to appear or otherwise present evidence to the appeals tribunal or board of review, and the employer presented substantial evidence in support of its position. The holding in favor of the appellee-employee was based upon his statement which was made to a local employment security agency when he filled out a claims worksheet. We hold that statement may not be considered substantial evidence to support the ruling of the board of review.

Ark. Stat. Ann. § 81-1107(d)(2) (Repl. 1976) provides that “the appeal tribunal, after affording the parties a reasonable opportunity for a fair hearing, and on the basis of the record, shall affirm, modify, or reverse” the determination of an employment security division office. Where, as in this case, the employee has prevailed upon his claim at the agency level the burden is upon the employer to go forward with evidence before the appeals tribunal to overcome the prima facie case in favor of the employee created by the agency determination. Little Rock Furniture Mfg. Co. v. Commission of Labor, 227 Ark. 288, 298 S.W. 2d 56 (1957). In the case before us the employer has met the burden of going forward with the evidence before the appeals tribunal. Mr. Cotham, the supervisor of the employee, gave strong testimony with respect to the appellee’s absences, tardiness, and sleeping on the job. The appeals tribunal and board of review apparently disregarded his testimony because he was unable to say that the employee did not telephone to advise the employer of automobile trouble on the date of his last absence which admittedly precipitated his discharge for misconduct.

In this court the standard for review of board of review decisions is well settled. We must affirm if there is substantial evidence to support the board’s determination. Terry Dairy Products Co. v. Cash, 224 Ark. 576, 275 S.W. 2d 12 (1955). We have recently determined that hearsay testimony before the appeals tribunal does not qualify as substantial evidence. Woods v. Employment Security Division, et al., 269 Ark. 613, 599 S.W. 2d 435 (Ark. App. 1980). We have also held that an employee need not appear at an appeals tribunal hearing in order to have his appeal considered if he has presented evidence to the appeals tribunal in writing. Stewart v. Charles L. Daniels, et al., 269 Ark. 809, 601 S.W. 2d 245 (Ark. App. 1980). As noted above, the question here is whether we can go outside the record compiled by the appeals tribunal and the board of review. In other words, to affirm this case we would have to hold that the initial statement made by the employee when he filled out his claims worksheet is substantial evidence to support his claim.

Although we see no reason why the board of review and. appeals tribunal may not consider a claimant’s initial statement to the local employment security agency as some evidence either in support of the claim or in opposition to it, we cannot say such a statement alone serves as “substantial evidence” in support of the claim. That is especially true in this case where the statement made by the employee addressed only the matter of his excuse for one of many absences to which direct testimony was given before the appeals tribunal by his supervisor.

Reversed.

Howard, J., dissents.

George Howard, Jr., Judge,

dissenting. The necessary facts for an understanding of the issue presented are:

On Monday, September 10, 1979, claimant, while enroute to his place of employment for respondent, encountered automotive problems and, consequently, did not report to work but, according to a written statement submitted to the local office of the Employment Security Division, telephoned his employer advising him of his automotive difficulties.

In protesting claimant’s application for benefits, the employer submitted the following written statement as the reason for the termination of claimant’s services:

He did not show up for work regular, was supposed to have been here on Monday, 9/10, was not so we hired someone else. When he came to work Tuesday we told him that we would call him when we have work.’ ”

During the hearing before the Appeals Tribunal, a representative for the employer testified:

“Well, he was late it might not have been 3/4 of the time, but he was late a lots and, like, if he ever called in I don’t know it, I mean, I’m not saying that he didn’t, but I didn’t know .... Ah, the absenteeism just lead up to it ah, this last day was the straw that broke the camel’s back with me. ...”

The following exchange took place between the Referee and the representative for the employer:

REFEREE: Mr. Cotham was he actually discharged from his job because of sleeping on the job or for being late to work?
COTHAM: That particular time, for late to work. (Emphasis added)
REFEREE: Okay, now then I believe according to the information he furnished the Agency or in his statement, he stated that he started to work on September 10, his car broke down, he called and stated that he was unable to get to work because of transportation problems, that he would get in the next day and apparently somebody told him it was okay. When he came to work the next day he was discharged from his job. Do you know if he called in on that morning?
COTHAM: No sir, I don’t.
REFEREE: Do you question as to whether he did or did not sir?
COTHAM: I would question that, because if he called in, he never did call in and if he called in that morning that was, that was the first morning. I’m not saying that he didn’t call in that morning, but I didn’t get the word for it, I didn’t get the word to it.
REFEREE: Have you subsequently to the time he was discharged made any kind of an investigation to see if anybody received a telephone call in authority as far as the office or anything like that was concerned?
COTHAM: No sir.
REFEREE: You have not made the investigation?
COTHAM: No sir.
REFEREE: Then there is a possibility that he did call in that morning?
COTHAM: Well, as far as I'm concerned there is. (Emphasis added)

While the majority recognizes that the employer had the burden of going forward with the evidence, during the hearing before the Appeals Tribunal, to overcome the prima facie case in favor of the claimant, the majority concludes, however:

“. . . In the case before us the employer has met the burden of going forward with the evidence before the appeals tribunal. Mr. Cotham, the supervisor of the employee, gave strong testimony with respect to the appellee’s absences, tardiness, and sleeping on the job. The appeals tribunal and board of review apparently disregarded his testimony because he was unable to say that the employee did not telephone to advise the employer of automobile. trouble on the date of his last absence which admittedly precipitated his discharge for misconduct.”

The troubling part of the majority’s conclusion is the difficulty that I have in finding that the employer "gave strong testimony” in support of its justification for discharging claimant when it is readily apparent that not only is the evidence submitted by the employer conflicting as to the reason claimant was discharged on Monday, September 10, but has no persuasive or probative value at all regarding the question whether the claimant notified his employer of his automotive problem.

It is well recognized that it is the prerogative of the administrative agency to resolve conflicts and determine credibility of witnesses. This is so basic that it is not even necessary to cite any authorities in support of this proposition. It is plain that the Board of Review, here, resolved all conflicts and doubts in behalf of the claimant.

Finally, the majority appears to be somewhat disturbed by the fact that the claimant did not appear in person, during the hearing, before the Appeals Tribunal, but Ark. Stat. Ann. § 81-1107(d)(3) provides in relevant part:

(3) . . . [TJhe Board [of Review] may on the basis of the evidence previously submitted in such case, or upon the basis of such additional evidence as it may direct be taken, affirm, modify or reverse the findings and conclusions of the appeal tribunal.
(4) . . . The Board of Review, appeal tribunals and special examiners shall not be bound by common law or statutory rules of evidence or by technical rules of procedure, but any hearing or appeal before such tribunals shall be conducted in such manner as to ascertain the substantial rights of the parties. . . . (Emphasis added).

It is clear that claimant’s presence was not absolutely required, under the law, in order for the Appeals Tribunal to review this proceeding. Moreover, the récord does not reflect whether the respondent requested or demanded that the claimant be required to appear in person.

I would affirm the action of the Board of Review in allowing claimant benefits.


text:
    Linda ARMSTRONG v. Charles L. DANIELS, Director of Labor
    E 80-61
    603 S.W. 2d 481
    Court of Appeals of Arkansas
    Opinion delivered September 17, 1980

      No briefs filed.
   David Newbern, Judge.

In this employment security benefits case, the appellant contends she quit her job because reimbursement for her gasoline expenses did not increase proportionately with the increase with the cost of gasoline. She contends this was “good cause connected with the work” and thus she should not be disqualified from receiving benefits. Ark. Stat. Ann. § 81-1106(a) (Supp. 1979). We affirm the board of review determination that this was not “good cause connected with the work.”

The appellant contends that her employer, the Arkansas Department of Labor, had increased the territory she was required to cover in her work as a labor investigator, and that it was costing her too much to drive her own vehicle. While we will consider allegations of substantial decrease in wages as good cause for voluntary departure from employment, we will not say that complaints based primarily upon economic conditions beyond the control of the employer fit the statutory exemption for disqualification. Broyles v. Charles L. Daiels, et al., 269 Ark. 712, 600 S.W. 2d 426 (Ark. App. 1980). Apparently this employee takes no exception to the increase in her territory but for the coinciding increase in the price of gasoline. Thus, the primary reason for her voluntarily quitting her job was beyond the control of her employer.

Affirmed.


author: George Rose Smith, Justice.

text:
    Elizabeth WALDRIP v. Donald Gene McGARITY and William A. CLARK
    80-138
    605 S.W. 2d 5
    Supreme Court of Arkansas
    Opinion delivered September 22, 1980

      Ray & Donovan, Marianna, for appellant.

      Daggett, Daggett, & Van Dover, by: Jesse B. Daggett, Marianna, for appellees.
   George Rose Smith, Justice.

According to the complaint, on December 2, 1978, the appellant’s 11-year-old son, Fred Waldrip, was killed when he was struck on the highway by a pick-up truck owned by one of the appellees and being driven at high speed by the other appellee, a minor. The impact caused the child’s body to bounce and slide along the highway for 184 feet. Mrs. Waldrip was sitting on her front porch at the time and witnessed the tragedy.

This action for wrongful death was brought by the administrator of the child’s estate and by the surviving parents. The administrator sought to recover funeral expenses and $250,000 as compensation for the mental anguish suffered by the child’s parents and his brother and sister. The mother, suing as an individual, sought to recover an additional $500,-000 as compensation for the “shock and mental anguish” she suffered as a result of seeing her child’s death. All three plaintiffs sought punitive damages.

The trial court, on motion for judgment on the pleadings (comparable to a demurrer under our former practice), entered judgment for the defendants with respect to the parents’ cause of action, on the ground that the personal representative is the only person who can maintain an action for wrongful death under Arkansas law. This appeal is from that judgment. The Court of Appeals certified the case to us for decision.

Counsel for appellant, in a brief which does not mention the 1957 Arkansas statute (Ark. Stat. Ann. § 27-909 [Repl. 1979]) allowing a personal representative to recover for mental anguish suffered by the parents and other specified relatives of the decedent, urge us to recognize the cause of action discussed and approved by the Supreme Court of California in Dillon v. Legg, 68 Cal. 2d 728, 69 Cal. Rptr. 72, 441 P. 2d 912, 29 A.L.R. 3d 1316 (1968). There the California court overruled several prior cases and held that a mother who witnessed the death of her infant daughter in a traffic accident could assert a cause of action for mental anguish. The court, however, had to overrule its prior cases only because the California wrongful death statute allowed such damages as “may be just” and had been construed to preclude recovery for mental anguish. Calif. C.C.P.A. § 337 (1972); Amaya v. Home Ice, Fuel & Supply Co., 59 Cal. 2d 295, 29 Cal. Rptr. 33, 379 P. 2d 513 (1963).

The situation in Arkansas is not comparable. For more than 20 years compensation for mental anguish has been recoverable under the Arkansas statute. In summarizing our cases we have pointed out that matters to be considered with respect to an action for mental anguish include the relationship between the plaintiff and the decedent, the violence and suddenness of the death, and specific consequences such as the plaintiffs resulting sleeplessness, nervous reaction, crying spells, and loss of weight or other physical symptoms. St. Louis Southwestern Ry. v. Pennington, 261 Ark. 650, 553 S.W. 2d 436 (1977). The appellant’s complaint alleges only causes of action for shock and mental anguish, both of which are recognized under our law. Presumably the legislature vested the cause of action in the personal representative (but with the recovery apportionable among the individual beneficiaries) so that all claims arising from a wrongful death can be asserted and settled in one suit. See Reed v. Blevins, 222 Ark. 202, 258 S.W. 2d 564 (1953), cert. den. 347 U.S. 937 (1954). We find no reason to recognize a duplicate cause of action in the appellant as an individual, nor has she suggested such a reason.

Affirmed.


author: Frank Holt, Justice.

text:
    Conrad HAMMAN v. STATE of Arkansas
    CR 80-134
    605 S.W. 2d 6
    Supreme Court of Arkansas
    Opinion delivered September 22, 1980

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

      Steve Clark, Atty. Gen., by: James F. Doivden, Asst. Atty. Gen., Little Rock, for appellee.
   Frank Holt, Justice.

Appellant seeks a belated appeal. On August 18, 1977, after a jury found him guilty of burglary and theft of property in violation of Ark. Stat. Ann. §§ 41-2002 and 41-2203 (Repl. 1977), he was duly committed to the Department of Correction to serve sentences of four years and one year, respectively, the sentences to run concurrently. On August 8, 1979, nearly two years later, appellant filed a pro se Rule 37 petition for postconviction relief, alleging ineffective assistance of counsel. On October 4, 1979, appointed counsel filed an additional petition requesting that the court grant appellant an appeal because the trial judge, at sentencing, failed to advise him of his right to appeal, as is required by Ark. Stat. Ann. § 43-2301 (Repl. 1977). After an evidentiary hearing, the court denied both petitions, finding that appellant, upon conviction, told the court that he agreed with the jury’s verdict; he was advised of his right to appeal, of which he also had personal knowledge; he did not request his attorney to perfect an appeal; he was not denied effective assistance of counsel; and he was too late to lodge a belated appeal due to the time limitation in A. R. Crim. P. 36.9. Appellant urges for reversal that he was “effectively denied his right to appeal by actions of the court and his counsel.”

We first observe that a request for a belated appeal under Rule 36.9 should initially be addressed to this court, because a trial judge has no authority to grant a motion, as here, for an appeal after the expiration of 30 days from entry of judgment. Finnie v. State, 265 Ark. 941, 582 S.W. 2d 19 (1979). Even if we should consider appellant’s motion here for a belated appeal, we hold that he has demonstrated no prejudice and the trial court’s findings are sufficiently supported by the record.

A sufficient answer to appellant’s argument that he was denied his right to appeal is that the court correctly found appellant had waited longer than allowed to ask for a belated appeal. Rule 36.9, amended on December 18, 1978, provides an 18 month belated appeal limitation. The pertinent part reads:

. . . The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed [30 days], when a good reason for the omission is shown by affidavit. However, no motion for belated appeal shall be entertained by the Supreme Court unless application has been made, either to the Supreme Court or the trial court, within eighteen [18] months of the date of commitment ....

There is no contention this rule is inapplicable. Here, the mo- ' tion for a belated appeal was not filed until more than 25 months from the date of appellant’s commitment. Frther, appellant waited more than 9 months after the rule was amended before filing his motion for a belated appeal. In the circumstances, appellant’s motion for a belated appeal is not timely made and, therefore, is denied.

Affirmed.