author: John A. Fogleman, Justice.

text:
    Thomas BLISSETT v. H. L. FRISBY and Elwanda Frisby
    5-5330
    458 S. W. 2d 735
    Opinion delivered October 19, 1970

      Crumpler, O'Connor, Wynne & Mays, for appellant.

      Shackleford it Shackleford, for appellees.
   John A. Fogleman, Justice.

Appellees sued appellant to recover damages for injuries suffered by Elwanda Frisby when the automobile she was driving was struck from the rear by one being operated by appellant. For reversal of a judgment for $15,000 for Elwanda Frisby and for $6,768 in favor of her husband, H. L. Frisby, appellant relies upon the following points:

The verdict of the jury is contrary to the evidence. 1 — 1
II. The verdict of the jury in favor of both of the plaintiffs was excessive and appears to have been given under the influence of passion or prejudice.
III. The Court erred in allowing plaintiffs to admit evidence of the value to the plaintiff, H. L. Frisby, of the services of his wife, Elwanda Frisby, in the operation of his dairy business, and in instructing the jury that the plaintiff, H.. L. Frisby, was entitled to recover for the value of the loss of services of his wife, El-wanda Frisby, in the operation of his dairy business.
That the court erred in allowing the plaintiff, H. L. Frisby, to introduce evidence of expenses which are not properly recoverable elements of damage. > HH

We shall discuss these points in the order listed.

I

Appellant argues that the jury verdict is contrary to the evidence because it is clear that the jury did not attribute any negligence to Elwanda Frisby as a cause contributing to her damage. In effect, appellant’s argument is that the preponderance of the evidence showed that Mrs. Frisby was negligent and that her negligence contributed substantially to the damages suffered by ap-pellees.

The collision occurred- around 5:00 p.m., August 1, 1967, on Highway 167, south of El Dorado. Mrs. Frisbv was driving to her home about nine miles south of El Dorado, where the Frisbys were conducting a dairy farm operation. Her 18-month-old daughter was riding in an infant car seat in the center of the front seat of the Frisby Chrysler automobile. Appellant Blissett followed her from the El Dorado city limits for about four miles, maintaining an interval of about 100 yards. Both vehicles were traveling at a speed of 55 to 60 miles per hour. Shortly before the collision the Frisby infant either fell or climbed from the car seat in which she was riding. Mrs. Frisby slowed her vehicle and took measures to grasp the child. There is a wide variance in the testimony of the parties regarding what happened at this point.

Elwanda Frisby’s version is:

She slowed to about 45 miles per hour and pulled the child down into the seat beside her. At that time, she looked into her rear view mirror, but did not observe any vehicles to the rear. She then accelerated her vehicle speed to 50 or 55 miles per hour, when her daughter started pulling on her arm. She gradually slowed her vehicle, moving it toward her right in order to pull off onto the shoulder of the road and move her child to the rear seat of the vehicle. She then heard the screeching of brakes, glanced into her rear view mirror, and was struck from the rear almost instantly. The child never did fall to the floorboard or fall out of the infant seat. She had applied her brakes when decreasing her speed. Her automobile speed was down to 15 or 20 miles per hour when she was struck.

Blissett’s testimony, in substance, follows:

After the two vehicles had passed over a bridge, he noticed that the Chrysler vehicle speed was diminishing and took his foot off his accelerator because the interval had been reduced to about one-half the former distance. He had noticed the baby falling out of the infant seat just before the Frisby vehicle speed had slacked. The baby was climbing out of the seat, then fell out, and Mrs. Frisby fell over to get the child. Both driver and child disappeared from his view. Mrs. Frisby then hit her brakes and skidded to a stop in the highway. Her stop was as sudden as possible, and there was no way he could have stopped without striking the rear of the Chrysler. The rear of the Chrysler rose, and the front of the Falcon went down so that the Falcon hood and grill struck the bottom of the Chrysler bumper. There was opposing traffic which prevented his passing Mrs. Frisby to her left. Turning to the right was not possible because of the height of the highway dump. Mrs. Frisby had not brought her vehicle to a complete stop when it was struck.

The investigating state trooper testified that Mrs. Frisby told him that the child fell from the seat and that she attempted to stop to pick her up.

The verdict of the jury was a general one. It was rendered upon instructions relating to negligence, proximate cause and comparative negligence, and preponderance of the evidence, of which appellant does not complain. Resolution of conflicts in testimony in a law case is not within the province of an appellate court. Rhoden v. Lovelady, 239 Ark. 1015, 395 S. W. 2d 756; Norman v. Gray, 238 Ark. 617, 383 S. W. 2d 489. It is fundamentally a jury function, and a verdict usually is conclusive. Wasson v. Warren, 245 Ark. 719, 434 S. W. 2d 51. Especially is this so where questions of negligence, contributory negligence and credibility of witnesses are involved. Wood v. Combs, 237 Ark. 738, 375 S. W. 2d 800; Palmer v. Dillard, 224 Ark. 155, 272 S. W. 2d 66; Wasson v. Warren, supra. On appeal we give the evidence its strongest probative force in favor of the verdict. Palmer v. Dillard, supra; Jarrett v. Matheney, 236 Ark. 892, 370 S. W. 2d 440. If the trial court had found the verdict to be against the preponderance of the evidence, it could have granted appellant’s motion for a new trial, but this court cannot do so. Horn v. Shirley, 246 Ark. 1134, 441 S. W. 2d 468. It is only where there is no substantial evidence to support the verdict, where fair-minded men can only draw a contrary conclusion or where there is no reasonable probability that the incident occurred according to the version of the prevailing party, that a jury verdict on these questions will be disturbed on appeal. Norman v. Gray, 238 Ark. 617, 383 S. W. 2d 489; Midwest Bus Lines, Inc. v. Williams, 243 Ark. 854, 422 S. W. 2d 869; McWilliams v. R. & T. Transport, Inc., 245 Ark. 882, 435 S. W. 2d 98. We cannot say that the evidence relied upon by appellant was so conclusive as to preclude a jury finding that the negligence of the following vehicle was the sole proximate cause of the collision, or that any negligence of which Mrs. Frisby was guilty was only a minor contributing cause of her injuries.

II.

We cannot say that the awards made by the jury are excessive or that they were made under the influence of passion or prejudice. We cannot reverse on this ground unless, after viewing the evidence in the light most favorable to the appellees, we find the amount of the verdicts to be so great as to shock the conscience of the court or to demonstrate that the jury was motivated by passion and prejudice. Gordon v. Smith, 247 Ark. 256, 444 S. W. 2d 873; Dyer v. Payne, 246 Ark. 92, 436 S. W. 2d 818. Appellant's argument that, in considering this point, we must consider that the negligence of El-wanda Frisby should have reduced the damages recoverable has been treated above. His remaining argument on this point is premised upon the contention that Mrs. Frisby cannot recover for any loss of earning capacity because her resulting 10% disability to the body as a whole will not prevent her from performing all the functions discharged by her prior to the injury.

It must he remembered that Elwanda Frisby was also entitled to recover damages based upon the nature, duration and extent of her injuries, pain, suffering and mental anguish she has experienced and which she may reasonably be expected to undergo in the future, in addition to those based upon her loss of earning capacity. We must also consider that H. L. Frisby's damages would iñcludé the reasonable expense of medical care, treatment and services rendered and reasonably certain to be required in the future, the $400 reduction in value of his automobile.and his loss of the society, companionship and marriage relationship, as well as the loss of the services ordinarily rendered by a wife.

The impact of the collision was such that the Blis-sett Falcon was rendered inoperable, after it had skidded approximately 33 feet before striking the rear of the Chrysler. Both Mrs. Frisby’s age and life expectancy were 34 years;. She was actively engaged in the daily operation of the Frisby dairy farm, her husband being otherwise regularly employed. She maintained the feeding health, production and breeding records on their 74 head of cattle. She also supervised their artificial breeding. She observed all the cattle thrice daily to view their activities and detect illnesses. She administered all necessary injections to the cattle and called a veterinarian when necessary for other purposes. She saw that the calves were properly bottle-fed. She did most of the feeding of the cattle and helped with the milking. It was her responsibility to keep sufficient feed and medicine on hand and to keep all the farm machinery in operating condition. She also checked the pasture fences.

When she suffered from a severe headache, stiffness of her neck, nervousness and insomnia during-the night following her injury, she consulted a physician. Viewed in the light most favorable to appellees, there was evidence from which the jury might have found the following

Mrs. Frisby suffered a cervical ligamentous sprain. She underwent physiotherapy consisting of intermittent traction, sonolater treatment and microwave diathermy over a period of several months. For a considerable part of this time she took prescribed muscle relaxants four times daily as well as pain relief medication. An orthopedic surgeon later prescribed physiotherapy which included traction and hot baths thrice daily. She showed some improvement, but severe muscle spasms in her neck and shoulder continued. She began to lose the use of her left arm and hand and noticed increasing numbness in that limb. After nine months, her physician noted a circulatory problem, prescribed additional physiotherapy and recommended a neurological consultation.
A neurological surgeon found evidence of a chronic musculo-ligamentous sprain of the cervical spine and a thoracic outlet syndrome. He added special exercises and heat packs to her therapy. Although there was improvement in her condition, she was referred to a surgeon specializing in thoracic surgery when deterioration of her arm continued over several months. The surgeon removed a rib, because the shortening of ligaments as a result of the collision had pulled the clavicle and this rib together so that an artery was pinched and the blood supply to her arm reduced. She suffered intense pain for a month, but her condition then improved. She may be expected to have to continue physiotherapy and sonolater treatments for an indefinite period of time, perhaps the rest of her life. Two years after the collision, she was still suffering extremely severe muscle spasm around the strap muscles of her neck. She may have discomfort in her left arm and shoulder for many years, especially when she tries to do heavy work. Prognosis of this injury is difficult. With proper care and continued therapy, she might remain relatively asymptomatic, but this type of injury may not become symptomatic for approximately ten years. Prolonged spasm of the type she' experienced can produce pain which is severe and disabling. She has a permanent disability to the body as a whole of 20%.
At first she was unable to perform any of her duties in connection with the farm operation. Her inability to do so necessitated her husband’s discontinuance of his employment between February and December of 1968, although she became able to help with record keeping and bookkeeping. At the time of trial, she was able to resume some of her management duties, but could not do any of the physical work, such as feeding. A helper had been employed, and Mrs. Frisby's 19-year-old son had come and helped with some of the farm work. She stated that it had been necessary to reduce the size of the herd so that it could be properly cared for. She was still limited in the use of her left arm and often became tired and had to stop and use a heat lamp to relieve muscle spasms. She could only work on the books for short periods of time because of the muscle spasms.
Mrs. Frisby was a very competent herdswoman. The value of her services, based on salaries paid in the locality, would be $650 per month plus quarters, meat, milk and other fringe benefits.

Appellant does not point out any failure of proof to support the award to H. L. Frisby. It is sufficient to say that the amounts of the awards do not shock the conscience of the court. Neither do they indicate that the jury was motivated by passion or prejudice.

III

The court's instruction covering the measure of El-wanda Frisby's damages permitted her to recover for the value of any loss of ability to earn, and that covering the measure of H. L. Frisby's damages permitted him to recover "for any loss of services ordinarily rendered by a wife." Appellant contends that these instructions permitted a double recovery. We do not agree with appellant's construction of these instructions. The services rendered to the dairy farm operation by Mrs. Frisby were shown to have a value in excess of $600 per month, which can be said to be a fair indication of her earning capacity. These services were certainly far above and beyond those ordinarily rendered by a wife.

Appellant now argues, however, that instruction no. 18 was ambiguous and misleading and should have either defined the type of services covered by the instruction or omitted this element. Appellant's objection in the trial court was not based on the instruction’s being ambiguous or misleading. Appellant stated only that the instruction permitted H. L. Frisby to recover an improper element of damages, i. e., any loss of services rendered by his wife as a helper in the dairy business. The present objection cannot be made for the first time on appeal. Bussell v. Missouri Pacific Railroad Co., 237 Ark. 812, 376 S. W. 2d 545. Appellant did not request any instruction to define, limit or eliminate the words he now finds ambiguous or misleading. In the absence of any such request, he is in no position to now complain. Lemm v. Sparks, 230 Ark. 105, 321 S. W. 2d 388; Mutual Benefit Health & Accident Assn. v. Rowell, 236 Ark. 771, 368 S. W. 2d 272, 98 A. L. R. 2d 277.

IV.

Appellant says that evidence of expense paid by Frisby for his wife to travel to physicians in Louisiana, rather than in El Dorado, for baby-sitters while she was going to doctors, for telephoning to make appointments and confer with doctors, and for lodging and meals of Frisby while his wife was in the hospital was improperly admitted. He argues that these costs are neither recoverable nor pleaded as damages. The latter objection was not made in the trial court, so we will not consider it here. Appellant’s argument as to travel expenses is based upon the assumption that there was no necessity for Mrs. Frisby to leave El Dorado for her medical treatment. There is a decided scarcity of authority in Arkansas as to recoverability of particular items of expense and admissibility of particular evidence. Consequently we turn to other jurisdictions for guidance.

It has been said that a successful plaintiff in an action such as this is entitled to recover whatever is a reasonable and necessary outlay in attempting to be cured of his injuries. Sherwood v. Chicago and W. M. Ry. Co., 82 Mich. 374, 46 N. W. 773 (1890); Ayers v. Macoughtry, 29 Okla, 399, 117 P. 1088 (1911); Hart v. Charlotte, C. and A. R. Co., 33 S. C. 427, 12 S. E. 9, 10 L. R. A. 794 (1890). The allowance of expenses for travel or transportation of one suffering from personal injuries to and from a physician’s office is properly allowable as a part of the medical expenses. Ledbetter v. Hammond Milk Corp., 126 So. 2d 658 (La. Ct. App. 1961); Alabama City, G. and A. Ry. Co. v. Appleton, 171 Ala. 324, 54 So. 638 (1911); Hay v. Ham, 364 S. W. 2d 118 (Mo. Ct. App. 1962). It has also been said that a husband is entitled to recover for any expenses which he has incurred for his wife’s care and treatment for bodily injuries suffered by her as well as for medicál expenses. Cook v. Atlantic Coast Line R. Co., 196 S. C. 230, 13 S. E. 2d 1, 133 A. L. R. 1144 (1941). Reasonable expense of a husband for transportation of his wife to and from physician’s offices and hospitals has been held to be a foreseeable damage resulting from a tort-feasor’s negligence. Nicholson v. Blanchette, 239 Md. 168, 210 A. 2d 732, 14 A. L. R. 3d 525 (1965). A Georgia Court of Appeals has said that there is no sound reason in sense and justice why a recovery of expenses of four trips of parents to another city and their room and board while there obtaining medical treatments for their daughter should not be recovered. Southern Bell Tel. and Tel. Co. v. Whiddon, 108 Ga. App. 106, 132 S. E. 2d 237 (1963). Expenses of parents for transportation to, and board and lodging in, a town distant from their home where their injured son was taken to a hospital were held admissible as evidence of damages recoverable by them. Woodman v. Peck, 90 N. H. 292, 7 A. 2d 251, 122 A. L. R. 1402 (1939). The court there said that their attendance on the son might be found a reasonable need for him in recovery by way of comfort and cheer.

Reasonable expense of a husband in traveling to visit his wife in the hospital during her treatment has also been held recoverable. Hall v. Burkert, 117 Ohio App. 527, 193 N. E. 2d 167 (1962). Expenses of a husband in traveling and residing in a hotel (exclusive of meals, laundry, tips and telephone calls) during a wife’s treatment have been allowed. Baird v. Employers’ Liability Assur. Corp., 38 So. 2d 669 (La. Ct. App. 1949). Both incurred and anticipated travel expenses of the father of an injured child have been considered in measuring damages. Burke v. National Farmers Union Property and Casualty Co., 36 Wis. 2d 427, 153 N. W. 2d 545 (1967).

It has been held that expense of hiring a housekeeper may be an item relating to loss of services and society. Ashley v. American Automobile Ins. Co., 19 Wis. 2d 17, 119 N. W. 2d 359 (1963). Travel expenses and compensation for housekeeping services performed by a sister of a victim have been held to be a proper allowance. Bowden v. Atlantic National Insurance Co., 165 So. 2d 15 (La. Ct. App. 1964). Board for a sister who accompanied an injured person during medical treatment away from home has been allowed as an element of damages. Ayers v. Macoughtry, 29 Okla. 1399, 117 P. 1088 (1911).

While not controlling, evidence of expense incurred is some evidence of reasonableness. Malinson v. Black, 83 Cal. App. 2d 375, 188 P. 2d 788 (1948); Carangelo v. Nutmeg Farm, 115 Conn. 457, 162 A. 4, 82 A. L. R. 1320 (1932); Hay v. Ham, 364 S. W. 2d 118 (Mo. Ct. App. 1962). This rule of admissibility was applied to expenses for bus fares in Conner v. Hamlin, 33 Ala. App. 54, 29 So. 2d 570 (1947). This approach is not dissimilar to our permitting evidence of the amount paid in good faith for repair of a motor vehicle to be considered in determining damages thereto. See Golenternek v. Kurth, 213 Ark. 643, 212 S. W. 2d 14, 3 A. L. R. 2d 593; Casey v. Burdine, 214 Ark. 680, 217 S. W. 2d 613.

A defendant who conceives that expenses incurred for medical treatment are unreasonable certainly may, and probably should, offer evidence to support his view. Alabama City, G. and A. Ry. Co. v. Appleton, 171 Ala. 324, 54 So. 638 (1911); Carangelo v. Nutmeg Farm, supra. The reasonableness and necessity of any expenditure for medical treatment is a question of fact for the jury (or a judge sitting as trier of the facts). Hart v. Charlotte, C. and A. R. Co., 33 S. C. 427, 12 S. E. 9, 10 L. R. A. 794 (1890). We have held that questions as to the amount of expenditures for physicians and the necessity for employment of a driver for an injured person were for the jury. Lynch v. East Arkansas Builders Supply Co., 193 Ark. 1004, 104 S. W. 2d 205.

Whether services of physicians outside the locale of the plaintiff’s residence are reasonably necessary depends upon the circumstances of the particular case. See Baird v. Employer’s Liability Assur. Corp., 38 So. 2d 669 (La. Ct. App. 1949); Grinnell v. Carbide and Carbon Chemicals Corp., 282 Mich. 509, 276 N. W. 535 (1937). An injured person is not always required to undergo treatment by the nearest doctor or in the community where he resides. Ashley v. American Automobile Ins. Co., 19 Wis. 2d 17, 119 N. W. 2d 359 (1963); Neese v. State Medical Society, 36 Wis. 2d 497, 153 N. W. 2d 552 (1967).

Frisby testified that, after his wife was unable to get an appointment with an El Dorado doctor, she went to the family physician at Bastrop, Louisiana, where the Frisbys had previously lived. She had once been employed by this doctor. After seven treatments, he referred her to an El Dorado physician because of the extensive driving required in coming to him. She testified that after a particularly severe siege of muscle spasms, she returned to this doctor who then referred her to another physician in Bernice, Louisiana, for physiotherapy. It was more convenient for her to go to this doctor.

Frisby also testified that it was necessary, because of the collision, for him to employ household help and baby-sitters and to incur the travel and telephone expense. No controverting testimony was offered.

Under these circumstances, we cannot say as a matter of law that these expenses were not reasonably necessary. We feel that the better rule leaves the reasonableness and necessity of these expenses for determination by the jury. We also believe that the trial judge has some discretion in deciding whether there is sufficient foundation for the ádmission of testimony giving the amount of certain expenditures. We find no abuse of discretion in admitting the testimony questioned here.

The judgment is affirmed.

       He testified that he had expended $1,640.39 for hospital, drug and physidans' bills.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Gerald DISNEY et ux v. Carl Ray KENDRICK et ux
    5-5323
    458 S. W. 2d 731
    Opinion delivered October 19, 1970

      Davis & Reed, for appellants.

      James E. Evans, for appellees.
   Conley Byrd, Justice.

This is a boundary dispute between appellants Gerald and Alta Disney and ap-pellees Carl Ray Kendrick and Margie Kendrick, his wife. The only point for reversal is that the trial court erred in finding for the appellees on the issue of title.

At the close of the evidence the trial court made the following comprehensive remarks:

“This boils down to ownership of the triangular shaped piece of land on two bases: One by adverse possession, and the other by agreed boundary or acquiescence. Mr. and Mrs. Disney purchased their lot in 1958; have occupied it since then. Mr. and Mrs. Kendrick bought their property immediately east of the Disney property in 1962, and have occupied it continuously since then.
“The pie-shaped strip of land has its point at the south or Old Wire Road side of the two respective properties, and then it fans out running north and its widest point on the north, according to the evidence, is about 30 feet. It is this 30 foot wide, pie-shaped piece, that is, 30 feet at its widest end, approximately, that is the subject of the contr overs ary here.
‘The evidence makes it clear that the legal description of the Disney property sustains the claim of title to this piece of land. The evidence makes it equally clear that this piece of land belongs to the Kendricks by acquiescence and agreed boundary. It is undisputed that a common originator of title, one Fink, owned all of the land which is now owned by the Kendricks and Disneys, respectively. He sold, by mesne conveyances, to somebody named Jaro who then sold to the Dis-neys. That left the Disneys owning their present property lying immediately west of the property then owned by Fink, which, later on some 3% or 4 years later was sold to the Kendricks by this same Fink.
“The evidence, I think, is preponderantly to the effect that during all of the time that Mr. and Mrs. Disney owned the land and occupied it, and Mr. Fink owned and occupied his land, which he later sold to the Kendricks, there was no specific, visible, permanent monument or marker, fence, dividing line, call it what you will, that clearly and obviously and plainly marked the boundary line between the Disney and the Fink properties. But the evidence is equally clear that at some time or times not specifically designated as to date, but in both instances before Fink, sold to Kendricks, two concrete stobs, posts, chunks, however they may be referred to in the testimony, were installed at the southeast and northeast corners, respectively, of the Disney land. That Mr. Disney assisted in the installation of these concrete chunks, and at that time did so with the understanding and belief, which ' was shared by Mr. Fink, that these marked the two corners of thé Disney land. That is, the southeast corner of the Disney land being identical with the southwest corner of the then Fink land, gnd the northeast corner of the Disney land being identical with the northwest corner of the Fink land.
“Sometime thereafter and the testimony is in dispute, that is to say, it is unclear, but sometime after these two concrete posts or stobs were sunk into the ground, Mr. Fink sold his remaining portion of what once was a large single tract to the Kendricks. From that time on, I think the evidence makes it preponderantly clear that there was no open, active dispute or disagreement between, the Kendricks and the Disneys as to where the boundary line between the properties was, but makes it equally clear that, by apparent tacit agreement and by apparent common understanding, the line was that line between the two concrete chunks that had been put in by Fink and Mr. Disney, sanetime before the Kendricks bought the property.
“Subsequent events and particularly, or at least initially, a survey that had to do with some ad-joiniftg lands to the north, and having to do with the outlining of the borders of an industrial park, caused both the Disneys and the Kendricks to wonder whether their lands, respectively, were really bounded the way they thought they were. And a still láter survey, specifically, a survey that is in the evidence in this case, showed that the boundary line was out of whack, it wasn’t where it legally should have been, where the legal calls would put it to be. But notwithstanding that, from 1963 clear on up until sometime in 1968, with this knowledge and belief on the part of both the Disneys and the Kendricks that, somehow, their boundary line was awry, it was not where it really ought to be; but not knowing for sure just where it was, still, they continued to treat their respective properties as if the line was where they had formerly treated it to be. Beginning with the Disneys and the Finks, to start off with, and later the Disneys and the Kendricks, so that the two concrete markers apparently were the starting points and the base points for that north-south dividing line between the Disney and the Kendrick properties.
‘The evidence shows this: That a partial fence, partial in the sense that it didn’t run all the way from the north of the property down to the south on the Old Wire Road, but according to Mr. Carl Ray, about a third of the way from the north line down. This fence was almost exactly on the line between these two concrete stobs. It was there for approximately three years and then it was taken down along its north portion by Mr. Disney, and this apparently precipitated the unfortunate situation that resulted in the law suit. During all of this same time, the mowings of yards by the Kendricks and the Disneys approximated the imaginary line extending between the two concrete stobs.
‘The testimony of Mr. McFerrin, who has lived across the street and a little dab east of the Ken-dricks and the Disneys since back in the forties, is that he clearly recalls a partial fence and it was on the same line as the line of mowing. He remembers, while Mr. Fink still had what is now the Kendrick property, the line of demarcation or separation between the two mowings of the Fink unimproved lot on the east and the Disney improved, residential lot on the west, that is, the dividing line between the smooth, close-clipped mowing of the Disney yard and the rougher, longer, field cutting on the Fink land to the east. As he now recalls it over the period of several years, that line was about the same as the line between the two concrete stobs and the line where the partial fence line ran.
“All of these things simply go to complete the picture that, for whatever reason or combination of reasons, and wholly aside from what the actual line location was, Mr. and Mrs. Disney and Mr. Fink, initially, and thereafter the Disneys and the Kendricks, clear up until 1968, treated that line as if it were the sure-enough line. Now it is true that, beginning sometime in 1963, both the Ken-dricks and the Disneys had serious doubts about whether this was the line, actually. They speculated to themselves and each other that it may well be some other place over here; might even be where a corner of the Kendrick house would be cut off if the actual line were really fixed. Notwithstanding that they continued to treat it as if the theretofore established line continued to be the line. The only explanation, and it is not unreasonable at all, offered for this continued treating of the established line as the line, is the proposition advanced by Mr. and Mrs. Disney that, when this matter of the possibility of the line not being where they had thought it was came to their attention, it was then mutually agreed between them, in substance, ‘Now you people go ahead and use this just like it was yours; it really isn’t yours and it won’t become yours, but as long as we live here and as long as you live there, why you can use it, just as if it were yours.’
“As I say, this is not at all unreasonable and .it is an entirely neighborly thing. In any event, it is the only evidence that serves to offset and to counteract all of the other evidence which tends to a contrary conclusion. It must be remembered that in these kinds of cases, where it is very difficult for memories to emerge with complete clarity and where motives and intentions are frequently clouded over, the decision must be guided by a preponderance of the conflicting evidence and a determination of what is the greater weight of the probabilities. On that basis I will resolve the- issue in favor of the plaintiffs and find that by a preponderance of the evidence there has been a boundary line established by acquiescence or as it is sometimes called, not entirely accurately, agreed boundary.
“Now, as a matter of law it is not required, in order to establish an agreed boundary line, that the people concerned be in an open dispute, although such frequently is the case. It is not necessary that a hostile feeling of people at dagger’s point or fighting point exist, but there must be a genuine failure of knowledge as to where the line is, and there must be an uncertainty on the part of both parties concerned. In that sense, there is a dispute. One party says, ‘well, now I believe very strongly that the line is here and this is where I think it is.’ The other party says, ‘Well, now I believe very strongly that the line is over here. And that is where I believe it truly is.’ In that sense, there is a dispute as to the boundary, not a hostility, not an anger, not a personal falling out but a genuine uncertainty, a genuine dispute as to where the true line really is. This is the sort of hostility that the law means when it says that in order for the doctrine or theory of agreed boundary or boundary by acquiescence to operate so as to fix a legal boundary, there must be a hostility. It’s the same kind of hostility that is spoken of in adverse possession. It doesn’t mean that people are out fighting mad at each other and ready to do bat-beliefs. And people may have that genuine conflict of honest and essential difference of opinion without being mad at each other and ready to do battle about it.
“In that sense, I think the evidence makes it quite clear that there was such a hostility in this case; there was such an uncertainty. There perhaps was not that uncertainty as far as the beliefs of the people were concerned, before the Kendricks entered the picture and indeed before the survey in 1963. Quite clearly both Mr. Fink and Mr. Disney believed that the two concrete markers marked the boundary line. Mr. Disney has so testified. After the Kendricks bought, by all of the testimony adduced here, the Disneys continued to believe that these marked the line. Mr. Kendrick has testified that Disney said to him: ‘Here’s these concrete markers here, and your land is inside these markers.’ Kendrick evidently believed him. So, there was the common belief, a common understanding there, at least up until 1963 when the doubt arose. But even then for the next five years, up until sometime in 1968, the situation did not change; it continued just as it was. And I think under these facts that the doctrines of agreed boundary and boundary by acquiescence, either and both, does attach to this case, and is the governing principle.
“Now the doctrine of agreed boundary is simply this: Any deed, any piece of paper with a land description is easy to read, and anybody that has been through the 8th grade and learned to cipher a little bit can take a legal description and draw a picture on a piece of paper and say, ‘Here’s my 40 acres. And here’s Joe’s 40 acres; and here’s Smith’s 40 acres up here.’ But it’s a very different thing to take that description off the deed, or a picture on a piece of paper, and go out to the 40 acres on a rough mountain side, or in a chopped up area, and particularly in a heavily residential area, and put that picture onto the ground, because the weather has a habit of changing things; and people have a habit of changing things. Where you have a street corner not paved, people cut and wear the corner away and you don’t have a sharp clear corner, you’ve got a rounded corner. And if you have got a pop bottle cap showing the corner and the area gets paved over, then you have lost your pop bottle cap. So it’s not always easy just to take a description and a picture and go out to the ground and say, ‘Yep, here’s the corner, here’s that corner. Here’s my land just like the deed says.’
“This is how these uncertainties arise. This is why the law says it is better to have controversy settled once and for all than to have it continually carry on from owner after owner after owner and always have the doubt as to where this line is. The law, therefore, recognizes that it is a good thing and a proper thing that people may agree where the boundary is and never mind that one of them may or may not be giving up some land that he may or may not be required to give up under different circumstances. The fact is that they have agreed either by their actions, or by their outright agreement, to settle the question of the boundary, although, as I say, ‘never mind where it really is. It’s too much trouble to find out about it. We have been getting along here for years. Let’s just say this is it.’ And if they say that by their actions or by their words or both, and the situation lasts for a measurable, substantial period of time, then, under the law, it becomes fixed and fast as the boundary line between these two particular pieces of property. This is the meaning of the theory and the basis of the doctrine of agreed boundary that we lawyers talk about. These fancy words simply mean that people owning adjoining lands, not being sure of where their line is, have a right to agree between themselves that this is the line. That’s all there is to the doctrine of agreed boundary.
“I think the evidence is this case preponderantly establishes that such is what happened in this instance. The decree of the Court is to grant the prayer of the complaint. You may prepare a decree. Costs taxed against the defendants.”

As we view the record a preponderance of the evidence shows that appellees and their predecessor in title, Bill Fink, had been in possession of the area up to the disputed boundary line, under a claim of ownership, from sometime in 1958 until sometime in 1968 immediately prior to the filing of this suit. A preponderance of the evidence also shows that during that time appellants acquiesced in that possession. This we conclude is sufficient to support the trial court’s decision. See Harris v. E. B. Mooney, Inc., 211 Ark. 61, 199 S. W. 2d 319 (1947).

Affirmed.


text:
    William G. HINKLE and Kenneth HINKLE v. STATE of Arkansas
    5535
    459 S. W. 2d 542
    Opinion delivered October 19, 1970
    [Rehearing denied December 7, 1970.]

      W. Dent Gitchel, for appellants.

      Joe Purcell, Attorney General; Sam Gibson, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellants William G. Hinkle and Kenneth Hinkle were convicted of robbery allegedly committed upon Mr. and Mrs. Leeland Sartin on January 8, 1967. The jury in finding them guilty assessed their punishment at 15 years in the penitentiary. For reversal appellants rely only upon one point. — i. e., the State failed to sustain its burden of proving appellants guilty beyond a reasonable doubt.

The testimony of Officers R. D. Bentley and A. O. Evans of the Little Rock Police Department shows that a robbery was committed at No. 39 Robinwood in Little Rock on January 8, 1967. Mrs. Gladys Sartin testified that the Sartins were having dinner around 5:00 P.M. when she noticed someone outside. When her husband went to answer the door, the two defendants came in, one had a shotgun and the other a pistol. The pistol was placed at her temple and the shotgun in her husband’s stomach. Within two or three minutes the defendants blindfolded, gagged and tied the Sartins with wire and tape.

Mr. Leeland Sartin testified that approximately 5:30 P.M. on January 8, 1967, while he and his wife were eating dinner, the appellants rang his doorbell. He then gave the same description of the guns and the tying up that his wife gave. Mr. Sartin testified that jewelry taken was worth $7,000 or $8,000, a fur coat was worth about $5,000 and, according to his best estimate, $200 or $300 in cash was taken from his billfold.

Both Mr. and Mrs. Sartin identified the appellants in the courtroom as being the two men who robbed them, and both testified about the articles taken in the robbery. Under these circumstances we hold there was ample evidence to sustain the jury’s verdict.

Affirmed.


author: Frank Holt, Justice.

text:
    Jack A. RANDALL v. STATE of Arkansas
    5538
    458 S. W. 2d 743
    Opinion delivered October 19, 1970

      William C. McArthur, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of the crimes of burglary and violation of Act 145 of 1963 (breaking into a vending machine). The jury assessed a penalty of three years for burglary and one year for the latter offense. For reversal of the judgment on that verdict, appellant, by his court appointed trial counsel, contends that the trial court erroneously denied his motion for discharge for want of a speedy trial. We must agree with appellant’s contention.

Appellant, who was in the custody of state officials, was released to federal custody and immediately incarcerated in a federal correctional institution. A few days later, July 16, 1968, the state charged appellant, by information, with the above mentioned offenses and on that date placed detainers against him at the federal, institution, hi April 1970, after completion of his federal sentence, appellant was tried and convicted by the state on the pending charges. Before trial he moved for dismissal of these charges on the basis that his requests for a speedy trial were refused by the state. This motion was denied.

Appellant relies upon Ark. Stat. Ann. § 43-1708 (Repl. 1964) which provides:

If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.

This section implements Ark. Const. Art. 2, § 10, which guarantees a speedy trial in criminal cases. The right, however, is not in itself absolute. It prohibits oppressive delays, but not at the expense of public justice. Merritt v. State, 244 Ark. 921, 428 S. W. 2d 66 (1968). Over a century ago, this court observed in Stewart v. State, 13 Ark. 720 (1853):

By a speedy trial, is then intended, a trial conducted according to fixed rules, regulations, and proceedings of law, free from vexatious, capricious, and oppressive delays, manufactured by the ministers of justice.
* * *
[T]he spirit of the law is, that for a prisoner to be entitled to his discharge for want of prosecution, he must have placed himself on the record in an attitude of demanding a trial, or at least of resisting postponements.

What constitutes a speedy trial must be determined from the varying circumstances of each particular case with reference to the practical and efficient operation of the law. In this perspective, then, a speedy trial may be viewed as a matter of judicial discretion. Leggett v. Kirby, Judge, 231 Ark. 576, 331 S. W. 2d 267 (1960) But once a want of timely prosecution is established, absent a showing by the state of good cause for the delay, the trial court is divested of any discretion in the matter and discharge becomes imperative. Ware v. State, 159 Ark. 540, 252 S. W. 934 (1923). Furthermore, if a non-compliance with § 43-1708 is manifested, the burden is then upon the state to demonstrate that the delay was either necessitated by the exigencies of the orderly administration of justice or at the request of the prisoner. See Bell v. State, 243 Ark. 839, 422 S. W. 2d 668 (1968); Ware v. State, supra.

Any person who is incarcerated within this state is not only amenable to its laws, but is under its protection as well. He may, therefore, directly invoke § 43-1708. Fulton v. State, 178 Ark. 841, 12 S. W. 2d 777 (1929). See, also, Smith v. State, 201 Ark. 1185 (not reported in full in Arkansas Reports), 146 S. W. 2d 158 (1941). However, one incarcerated in an institution of the federal government or that of some other jurisdiction must affirmatively request a trial in order to activate the statute and to avail himself of its protection. Lee v. State, 185 Ark. 253, 47 S. W. 2d 11 (1932). See, also, Bedwell v. Circuit Court of Lawrence County, 248 Ark. 866, 454 S. W. 2d 304; Pellegrini v. Wolfe, Judge, 225 Ark. 459, 283 S. W. 2d 162 (1955). So, too, a fugitive (escapee) from this jurisdiction, once he has been recaptured and returned to prison, can thereafter claim a reinvestment of his rights under this statute. Merritt v. State, supra.

In the case at bar, appellant was arrested on June 16, 1968 and held for violation of state laws. He was transferred to federal custody on July 10, 1968. Approximately one week after he was released by the state to federal custody and immediately incarcerated in a federal institution, an information and detainer were filed against him by the state. Thereafter, on October 22, 1968, during the September 1968 term of court, appellant made a written request to state authorities for a speedy trial on the state charges pending against him. By this, he effectively invoked the protection of § 43-1708. In January 1969 his written request to state authorities for immediate trial was repeated and denied. His later petition to a federal district court for a discharge of the state charges was refused on the basis he had not exhausted his state remedies. During this rime the March 1969 and September 1969 terms of court passed before appellant was finally tried at the beginning of the March 1970 term. His trial followed completion of his federal sentence.

The state authorities took the position, in replying to his two requests (October 1968 and January 1969) for a speedy trial, that appellant was a “fugitive.” It is true that a fugitive removes himself from the protective provisions of § 43-1708 [see, e. g., Merritt v. State, supra]; but appellant here can hardly be so classified inasmuch as the state released him from its custody to the federal government. Upon appellant’s request for trial, the Arkansas authorities should have endeavored to regain jurisdiction over him for purposes of timely prosecution. See Pellegrini v. Wolfe, Judge, supra. It is incumbent upon the state, if it is to prevent appellant’s discharge, to demonstrate good cause for its failure to gain custody over him and to afford him a speedy trial. See, e. g., Bedwell v. Circuit Court of Lawrence County, supra.

Good cause for the delay in meeting appellant’s requests for a speedy trial not having been shown, the judgment is reversed and the cause remanded with directions to discharge appellant in accordance with Ark. Stat. Ann. § 43-1708 (Repl. 1964).


author: Carleton Harris, Chief Justice.

text:
    Rosemary A. SMITH et al v. CIRCUIT COURT OF WHITE COUNTY, ARK., Elmo Taylor, Judge
    5-5317
    459 S. W. 2d 61
    Opinion delivered October 26, 1970

      Gordon, Gordon ir Eddy, for petitioners.

      Cockrill, Laser, McGehee, Sharp ir Boswell, for respondent.
   Carleton Harris, Chief Justice.

This is a petition for a writ of prohibition. On June 22, 1968, Rosemary A. Smith was operating her car on U. S. Highway 64 in Conway County, Arkansas, her sister, Anita Smith, fifteen years of age, riding with her. The vehicle was involved in a wreck with Charles C. Kirk, a resident of White County, and on June 26, 1968, Kirk instituted suit in the Circuit Court in White County against Rosemary and Anita Smith, seeking damages for personal injuries and property damage. A summons was issued by the Circuit Clerk of White County directed to the Sheriff of Conway County, and said summons was placed in the hands of that sheriff on the same day. On June 28, Cecil Baker, a deputy sheriff of Conway County, served the summons on Anita Smith, and delivered a copy of the summons to the mother of Rosemary A. Smith at the home of the mother, in Springfield, Conway County, Arkansas. The deputy sheriff’s return reflected that a summons was personally delivered to her in Conway County. Thereafter, petitioners, appearing specially, moved to quash the service, contending that Rosemary A. Smith was a resident of Pulaski County and the service obtained was not valid; that Anita Smith was a passenger in the car with her sister, and though Kirk’s complaint asserted that the two Smith girls were engaged in a joint enterprise, such allegation was only a conclusion, and no facts had been stated wherein Anita Smith could be found to have been engaged in a joint enterprise with her sister. A motion was likewise filed by Rosemary A. Smith, appearing specially in support of the motion to quash service, setting out that the deputy sheriff’s return erroneously reflected that a summons was personally delivered to Miss Smith in Conway County; that said return was in error and should*be amended to reflect the truth. The affidavit of the deputy sheriff was attached for the purpose of showing just exactly whát had happened. The affidavit sets out that Baker had served the summons by delivering a copy and stating the substance thereof to Mrs. W. A. Smith, Jr., mother of Rosemary, at the home of Mrs. Smith in Conway County. The White County Circuit Court ordered the return of summons amended in accordance with the affidavit, but after hearing the testimony of Baker, the testimony of Mrs. W. A. Smith, Jr., Rosemary A. Smith and Anita Smith, overruled the motion to quash, holding that the service obtained was valid. Thereafter, Rosemary A. Smith and Anita Smith petitioned this court for a Writ of Prohibition asking that the Circuit Court of White County be prohibited from proceeding further with this case.

The law on this subject has long been established in this state, and there are innumerable cases passing upon the question which is now presented to us. Perhaps our holdings have been most clearly expressed in the case of LaFargue v. Waggoner, 189 Ark. 757, 75 S. W. 2d 235, where quoting an earlier case, Merchants’ and Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. 2d 421, we said:

“It is well settled that, if the existence or nonexistence of jurisdiction depends on contested facts which the inferior court is competent to inquire into and determine, a writ of prohibition will not be granted, although the superior court should be of the opinion that the claims of fact had been wrongfully determined by the lower court, and, if rightfully determined, would have ousted the jurisdiction.”

In Merchants’ and Planters’ Bank v. Hammock, Supra, Chief Justice Hart also stated, quoting from a Kentucky case:

“If we should lay down the rule that application by original proceedings might be made to us to stay the hand of the inferior jurisdictions, whenever, in the opinion of counsel, the ruling was prejudicial, although it might not leave the complainant without adequate remedy, we would have much of our time occupied in the settlement of questions that could be brought before us in the regular way by appeal. Inferior courts would be obstructed in the hearing and disposal of cases, and much confusion and uncertainty would follow.”

In the case before us, Rosemary Smith testified that she had been employed by Southwestern Bell Telephone Company in Little Rock for over two years, and that she presently lived in an apartment in Little Rock, and was living in that apartment at the time of the accident; that she frequently went to Conway County on week-ends, but not every week-end; that she voted in Conway County; that at the time of the accident, she had been to Morrilton for a dental appointment. She said that her sister simply accompanied her and had not asserted or attempted to assert any control over the automobile. Anita testified that her sister was the owner of the car and that she (Anita) made no statements to Rosemary concerning her driving in any manner whatsoever.

The cited cases make it clear that, even if we thought the trial court had held erroneously, prohibition would not be granted. If it develops that the White County Circuit Court is without jurisdiction, petitioners have an adequate remedy by appeal.

Writ denied.

         Rush v. Denhart, 138 Ky. 245, 127 S. W. 787, Ann. Cas. 1912A, 1199.


author: George Rose Smith, Justice.

text:
    Jerry L. HOYT v. Sally HOYT
    5-5336
    459 S. W. 2d 65
    Opinion delivered October 26, 1970

      Curtis L. Ridgway, Jr., for appellant.

      Anderson & Slagle, for appellee.
   George Rose Smith, Justice.

This is a divorce suit brought by the appellee, Sally Hoyt. The parties were married in 1955 and separated in 1969. In the trial court the appellee was granted a divorce on the ground of adultery (about which the testimony is uncontradicted). The appellee was awarded custody of the couple’s three children, aged 12, 10, and 7. By stipulation the parties agreed upon, and the chancellor approved, a division of their property. The only contested issue on appeal is the amount of alimony and child support to be paid to the appellee. The chancellor allowed Mrs. Hoyt $500 a month as alimony and $500 a month as child support. The appellant insists that those allowances are excessive and should be reduced to a total of $800 a month.

We have consistently recognized the chancellor’s wide discretion in such a matter. Proper consideration should be given to the financial condition of the parties and to their conduct. We disturb the chancellor’s decision only if we find an abuse of discretion. Wiles v. Wiles, 246 Ark. 289, 437 S. W. 2d 792.

The appellant is a physician who began practicing in Hot Springs eight years before the case was tried. Despite his testimony that he and his wife had lived beyond their income, Dr. Hoyt admitted that during the eight years he had accumulated a net worth of more than $110,000, though he states that his mother furnished him with loans totaling $23,000. In 1969 the doctor’s net income, after taxes, was about $24,000. If personal exemptions and unfunded depreciation are added to that figure, it appears that Dr. Hoyt had about $32,000 of spendable income in that year.

Mrs. Hoyt will have to maintain herself and three sons. She testified that her total expenses, which she itemized in detail, amount to about $1,450 a month. The chancellor quite rightly pointed out that here, as in most such cases, there is not enough money to go around. When we compare the wife’s demonstrated needs with the husband’s available income, we find no abuse of discretion in the trial court’s allowances. The decree must therefore be affirmed, with an attorney’s fee of $750 to the appellee for the services of her counsel in this court.

Affirmed.


text:
    Roy Raymond JOHNSON v. STATE of Arkansas
    5527
    459 S. W. 2d 56
    Opinion delivered October 26, 1970

      Harold L. King and Julius C. Acchione, for appellant.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is the second appeal in a postconviction proceeding filed under our Criminal Procedure Rule 1. On the first appeal we remanded the case to the circuit court for a more specific and definite finding with respect to the voluntary nature of the petitioner’s confession. Johnson v. State, 248 Ark. 184, 450 S. W. 2d 564. Upon remand the court held a second hearing, at which additional testimony was taken. Upon the evidence introduced at both hearings the court found that the petitioner’s confession was voluntarily given at his own request and was not induced by or due to any action of the police officers. The present appeal brings that finding up for review.

Johnson was arrested upon a charge of rape at about 1:00 a.m. on October 25, 1962 — nine days before his eighteenth birthday. He testified, without corroboration, that he was beaten for about thirty minutes that night, and again the next morning, by police officers who were attempting to obtain an admission of guilt from him.

Officers Bentley and Goodwin were assigned to the case when they came on duty at 3:00 p.m. that same day. Johnson at first denied complicity in the asserted crime and refused to make a statement. Later on, at about 8:00 p.m., the two officers received a radio report that Johnson wanted to talk to them. When they returned to the jail Johnson, according to the officers, voluntarily made a statement — a confession — which was taken down by means of a tape recorder and was introduced at the hearing below. Both officers denied that Johnson had been mistreated by them, as Johnson claimed. Both stated that he did not appear to have been beaten by anyone else. Officer Bentley testified that ever since he had been a policeman, as far back as 1958, it had been his personal policy to advise persons of their right not to make a statement and to warn them that .any statement they made might be used for or against them in a court of law. The officer could not recall, some seven years after the date of the confession, whether he had in fact so warned Johnson of his rights. Officer Goodwin thought that such a warning had been given, but, in view of the lapse of time, he finally concluded: “I don’t believe I really remember.”

In a case of this kind it is our practice to make an independent determination of the ultimate issue of vol-untariness, but in doing so we accord the trial court’s findings that weight and respect to which they are entitled by reason of the trial judge’s superior opportunity to evaluate the oral testimony. Harris v. State, 244 Ark. 314, 425, S. W. 2d 293 (1968). We are aware that various efforts have been made to put into words — to express as a formula — the precise manner in which an appellate tribunal should weigh the findings of the trial court. See McNulty, Post-Conviction Relief in Arkansas, 24 Ark. L. Rev. 57, 78 (1970); Developments in the Law, Federal Habeas Corpus, 83 Harv. L. Rev. 1038 (1970); Wright and Sofaer, Federal Habeas Corpus for State Prisoners: The Allocation of Fact-Finding Responsibility, 75 Yale L. J. 895 (1966). In the case at bar we find it unnecessary to express a preference for any particular approach or formula; for we have concluded that the trial court’s judgment must be upheld in any event.

At an original trial on the merits the State has the burden of showing that a proffered confession was voluntary. Moore v. State, 229 Ark. 335, 315 S. W. 2d 907 (1958). But when a convicted person seeks relief under Rule 1, he and his counsel must satisfy the court that the petition has merit. See Reynolds v. State, decided March 2, 1970, 450 S. W. 2d 555.

According to the record, Johnson and a confederate were guilty of having raped a woman in the presence of her husband, whom they intimidated. When Johnson filed his Rule 1 petition more than five years after the date of his trial, the prosecutrix was in a mental institution, and her husband — the other available eyewitness — was dead. The court reporter’s record of the trial had been destroyed under a rule that such matters were preserved for only five years. We do not imply that the State’s inability to prove its case upon a retrial is entitled to great weight, but it is nevertheless a circumstance to be considered in adjudging the petitioner’s possible good faith in initiating a belated request for postconviction relief.

At the hearings below the prosecutor stated, without contradition, that all available witnesses had been produced. The petitioner’s testimony is denied positively by the two officers who received the disputed confession. The confession itself, when carefully studied, gives no internal indication of being the product of coercion. Upon the record as a whole, to which we have applied our own independent judgment, we are convinced that the petition was rightly denied.

Affirmed.


author: Lyle Brown, Justice.

text:
    James WISER v. STATE of Arkansas
    5533
    459 S. W. 2d 58
    Opinion delivered October 26, 1970

      Paul Jackson, for appellant.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant James Wiser was convicted of first degree murder and the jury verdict carried the death penalty. He was alleged to have fatally shot a fourteen year old child who interrupted Wiser’s attempt to ravish the child’s mother. On appeal it is contended that the trial court erred in refusing to permit appellant to withdraw his plea of guilty. It is also asserted that the court declared a mistrial when the jury reported being unable to reach a unanimous verdict and that it was error thereafter to permit the jury to resume its deliberations and ultimately bring in a verdict.

Appellant initially entered a plea of not guilty and not guilty by reason of insanity. That plea was entered upon arraignment on January 27, 1970. Between that date and the day set for trial, May 11, 1970, oral and written discussions were carried on between the defense counsel and the prosecuting attorney, the subject of which was the possibility of appellant receiving a life sentence in return for a plea of guilty. It was a typical plea-bargaining procedure which, when conducted with appropriate safeguards, is accepted as conducive to “the orderly and efficient transaction of business in the criminal courts.” Casenote, 2S Ark. L. Rev. 281 (1969).

When the case was called for trial, the court was informed that the defendant desired to change his pleas to that of guilty. After considerable interrogation by the court to determine whether the change in plea was voluntary and knowledgeable, the accused was permitted to make the change. A jury was impaneled to determine the degree of the homicide and to fix the punishment which, as we have said, resulted in the extreme penalty. When the jury returned with its verdict, and before formal judgment was pronounced, appellant’s counsel moved to withdraw the plea of guilty on the ground that the appellant had been assured by those in authority that he would receive a life sentence. The court took the motion under advisement and set a hearing thereon four days thereafter. On the day set for the hearing the motion was denied and appellant was sentenced to electrocution. That brings us to the first point for reversal, namely, that the court abused its discretion in denying the motion to withdraw the plea of guilty.

In the recent case of Cross v. State, 248 Ark. 553, 452 S. W. 2d 854, we recited what we termed a “summation of the basic principles” of plea bargaining:

Where the defendant enters a plea of guilty in anticipation of a lighter sentence recommended by the state, and where the court has forewarned the defendant that it was not necessarily bound by the state’s recommendation, it has been held that the court did not exert prejudicial surprise when it meted out a heavier sentence. Thus the mere fact that an accused, knowing his rights and the consequences of his act of pleading guilty, hoped or believed that he would receive a shorter sentence, a milder punishment, or some like favor by entering a plea of guilty, presents no ground for the withdrawal of the guilty plea. But . . . courts have also indicated that there is a countervailing legal principle — that the refusal to grant leave for a change of pleas from guilty to not guilty will be ruled an abuse of the trial court’s discretion when it appears that the plea of guilty was based on a misapprehension of the facts or of the law, or in consequence of a misrepresentation by his own attorney, or the state’s attorney, or someone else in authority. [Case note, 23 Ark. L. Rev. 281 (1969)].

We have carefully examined the correspondence between the prosecuting attorney and appellant’s counsel, as well as the meticulous examination of appellant by the court before permitting a change of plea. There we find evidence which combined to create an honest belief in the mind of the appellant that he would receive a life sentence in return for a plea of guilty.

Prior to April 21, 1970, there was a discussion between the prosecutor and appellant’s counsel concerning a change in plea. On the date mentioned, appellant’s attorney wrote the prosecutor to this effect:

I have no authority to say that my client will enter a plea under the arrangements you discussed, however, I will take that up with them immediately and if it can be arranged I will let you know.

The prosecuting attorney responded the following day. He explained that he was meeting immediately with enforcement officers and relatives of the deceased child to discuss with them “an offer to you for an arranged plea of guilty of murder in the first degree and accept punishment of life imprisonment.”

The next contact between the prosecutor and defense counsel was apparently a conversation. The prosecutor insisted that he explained that he was not permitted to negotiate on the basis of a conditional plea of guilty in return for an assurance of a life sentence; that the penalty would be fixed by the jury; and that the limit of the prosecutor’s authority was to agree to recommend to the jury that a life sentence be imposed. Appellant’s counsel insisted that his understanding of the agreement was that his client would enter a plea of guilty “in return for a sentence of life imprisonment.”

On April 28, 1970, appellant’s attorney wrote a letter to his client in which the subject of a guilty plea in return for a sentence of life imprisonment was discussed. In that letter was this statement:

Should you decide to accept this you would give up your right to a jury trial as to your guilt or innocence but you would gain the certainty that the death penalty would not be imposed. (Italics supplied.)

We turn next to the examination of the accused which the trial court conducted when notice of inten-don was made to change the plea. It consisted of three typewritten pages, was very thorough and, with but a single exception, was a commendable procedure. That single exception, which we perceive was inadvertent, was this:

THE COURT: Do you understand what the penalty can be for a charge, a conviction of a charge of first degree murder?
MR. WISER: Yes, sir.
THE COURT: Of either life imprisonment or death, if asked by the State and found by the the jury. [Italics supplied.]
MR. WISER: Yes.
THE COURT: Do you understand this?
MR. WISER: Yes.

The quoted colloquy occurred in the early stages of the questioning. It is true that the court subsequently explained that neither the court, appellant’s attorney, nor the prosecutor could make the decision on punishment — that the jury alone would decide that facet of the case. Yet it is not illogical to conclude that appellant believed that subsequent explanation concerning the power to fix sentence was predicated on the condition that the State would have to ask for the death penalty. (The fact that the State does not ask for the death penalty does not deprive the jury of the right to inflict it. Ark. Stat. Ann. § 45-2152 [Repl. 1969]).

There is another factor which buttresses appellant’s contention that he was to receive a sentence of life. It is not conclusive but is of some significance. The trial cburt, the prosecutor, and appellant’s attorney proceeded on the assumption that the jury would not return the death penalty. On voir dire the jury panel was not qualified on the death penalty. The prosecutor, questioning the jurors in groups of twos and threes, asked them if they would be agreeable to returning a verdict of life imprisonment in the event the accused was found guilty of first degree murder. He received affirmative answers. Additionally, the prosecutor in addressing the jury recommended life imprisonment. Appellant’s counsel explained to one or more jurors that the State was not asking the death penalty and inquired if the jurors were willing to follow that request. The reply was favorable to appellant. The trial court candidly stated, at the hearing on the motion to withdraw the plea of guilty, that “the vagary of the jury” created the problem. We point out those elements because they show clearly that the entire trial atmosphere was that of expectation of clemency for appellant.

When all the circumstances are combined — the negotiations between prosecutor and defense counsel, the written assurance to appellant that his plea of guilty would result in life imprisonment, the court’s explanation that a death verdict could be returned if requested by the State, the anticipation by the court officers that the jury would fix imprisonment at life — we think those circumstances bring the case within the “countervailing legal principle” we have heretofore quoted. Consequently we hold that the appellant’s plea of guilty was based on misapprehension of the law and the facts and his motion to set it aside should have been granted.

In deference to the trial court we would be remiss if we did not make it clear that upon the hearing on the motion to withdraw the plea of guilty no one called attention to the court’s statement that death could be imposed if asked by the State. Additionally, only three days intervened between the trial and the hearing on the motion; and we doubt that in the interim the record was transcribed and furnished the trial court. The court could not be expected to recall everything in his admonition to appellant unless it was called to his attention by counsel or by referring to the record.

The facts upon which the second point is based are not likely to arise on retrial and we see no necessity in discussing it.

Reversed.


author: J. Fred Jones, Justice.

text:
    FARMERS COOPERATIVE ASSOCIATION, INC. of Rogers, Arkansas v. Hugh H. WEBB, Jr. et ux
    5-5322
    459 S. W. 2d 815
    Opinion delivered October 26, 1970
    [Rehearing denied December 14, 1970.]

      Crouch, Blair, Cypert fa Waters, for appellant.

      Little fa Lawrence, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Farmers Cooperative Association, Inc. from a judgment of the Benton County Circuit Court quashing an execution and levy on 61 acres of farm land toward the satisfaction of a judgment on a note, in the amount of $8,008.58, plus accrued interest, previously rendered in circuit court in favor of Farmers against Hugh H. Webb, Jr. and Dortha Lea Webb, his wife.

The appellee, Hugh H. Webb, Jr., is one of three surviving children and heirs of Hugh Webb, who died testate on July 50, 1965. The will of Hugh Webb, Sr. was dated January 10, 1949. It was prepared by himself without the benefit of counsel and provided as follows:

“It is my will and I hereby direct my Executrix herein after named to first pay all my just and •legal debts, if any.
I hereby will devise and bequeath unto my loving wife, Nell I. Webb, all of my property, both real and personal, of whatsoever kind and nature, and wheresoever situated.
I hereby appoint my wife, Nell I. Webb, as sole Executrix of this my last will and testment [sic]. And it is my request that she be not required to execute any bond as such Executrix.”

The will was offered for probate in the Benton County Probate Court and Mrs. Nell I. Webb was appointed executrix on November 22, 1965; and on April 5, 1966, Hugh Webb, Jr. signed a waiver of notice as follows:

“I, Hugh Webb, Jr., being one of the heirs at law of Hugh H. Webb, deceased, do hereby waive notice of all hearings, pleadings, appraisement, inventory, accounting, and other matters involved in the administration of the estate of Hugh H. Webb, deceased, and consent to the holding of any such hearing or the entering of any orders without further notice to me.”

The other two children and heirs of Hugh Webb, Sr. signed similar waivers.

An order approving first and final accounting, final distribution and discharge was entered by the probate court on March 16, 1967, and after reciting the publica-don of notices and expiration of time for filing claims, and after reciting that the estate had been fully administered, the order recites as follows:

“Petitioner has on hand the following assets of the estate, which, according to the will of the decedent, should be and become the property of Nell I. Webb, to-wit:” (Here follows a description of property, including the 61 acres here involved).

The order then concluded as follows:

“IT IS, THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that the final accounting filed herein by Nell I. Webb, as executrix of the estate of Hugh H. Webb, deceased, be and hereby is approved; that said executrix be and hereby is authorized and directed to deliver and distribute to Nell I. Webb the assets of the estate as provided by the decedent’s will, that Little 8c Enfield are hereby allowed an attorney’s fee of $1,440.00; and that upon making such distribution of assets and filing her receipts herein said executrix shall be fully and finally released and discharged from her trust herein and the administration of the estate shall be closed.”

By probate court order dated March 30, 1967, the estate was closed and Mrs. Webb was discharged.

On May 27, 1968, the appellant, Farmers Cooperative Association, Inc., filed its complaint in the circuit court of Benton County against Hugh H. Webb Jr. and Dortha Lea Webb, his wife, alleging that on January 28, 1966, they executed and delivered to Farmers their promissory note in the amount of $38,360 payable on or before August 27, 1966, with interest from the maturity date at 10% per annum. The complaint alleged that the note. was past due and that there remained an unpaid balance of $8,008.58, plus accrued interest and the complaint prayed judgment for that amount. Default judgment was entered on January 6, 1969, for the amount sued for and execution was issued on February 26, 1969. This execution was returned by the sheriff on March 19, 1969, with the notation “nothing to levy on at this time.” On March 27, 1969, another execution was issued and this execution was levied on the 61 acre farm described in the will of Hugh H. Webb, Sr.

On May 19, 1969, Mrs. Nell I. Webb and two of her children, Mabel McKinney and Eula Mae Walker, as well as Webb’s Feed and Seed Store, Inc., filed a motion in the Benton County Circuit Court setting' out the above facts pertaining to the probation of the will and praying that the execution be quashed for the reason that title to the property was properly vested in Nell I. Webb in the probate proceedings.

The trial court found that Hugh Webb died testate and that there had been no waiver in the probate proceedings by Hugh Webb, Jr. in an attempt to defraud his creditors; that the probate proceedings had all the appearances of a friendly type situation in which there was no anticipation of any possible after effects, and that the circuit court was obligated to respect the judgment of the probate court. The trial court found that the motion to quash was a collateral attack on the judgment of the Benton County Probate Court, and that the movants were without standing to attack the judgment of the probate court. The court further found that all parties in interest executed waivers of notice and that there was a final order of the probate court wherein title to the real estate in question was vested in Nell I. Webb on the 16th day of March, 1967. The circuit court found that it was without power to review or pronounce erroneous the judgment of the probate court, the two courts being separate courts with competent and equal jurisdiction. The trial court entered judgment quashing the execution without prejudice.

On appeal to this court Farmers Cooperative Association, Inc. rely on the following point for reversal:

“The trial court erred in quashing the execution and levy thereon for the reason that the judgment debtor owned an interest in the real property against which the execution and levy were directed.”

The question presented on this appeal is whether a judgment creditor of a surviving child and heir at law may levy execution on the interest of such heir in lands of his deceased’s parent, when the property levied upon was willed to the widow of the decedent, and the heir was a pretermitted child under the will.

Ark. Stat. Ann. § 60-507 (b) (Supp. 1969) is as follows:

“If at the time of the execution of a will there be a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to such child or issue, and such child or issue shall be entitled to recover from the devisees in proportion to the amount? of their respective shares, that portion of the estate which he or they would have inherited had there been no will.” (Emphasis supplied).

At the hearing on the motion to quash, Hugh Webb, Jr. testified that he received the waiver, supra, together with a letter from the attorney representing the estate. He testified that at the time he signed the waiver he knew he was waiving his right to contest the will; that he knew he could contest the will if he desired to do so, but that he knew of no grounds on which the will could be contested. He testified that as far as he was concerned the will was valid; that it left everything to his mother and that was the way he wanted it. He says that he thought that was the purpose of signing the waiver.

“Q. What did you understand were your grounds to contest the will?
A. I didn’t know what grounds. I just knew that if I wanted to contest it I could.
Q. You could contest it, but you didn’t have any idea you could overturn the provisions of the will?
A. I didn’t want to.
Q. You didn’t havé any idea that you could, or know of any reason why you could?
A. I don’t suppose I did.”

Mr. Webb testified that he knew what property was involved and that it was in his father’s name at the time of his father’s death; and that his father left the property and everything else to his mother by the will.

“Q. Did you know that when he died — or even think that you had any interest in this property?
A. No.-
Q. When you signed the waiver did you intend to give your mother this piece of property?
A. I did.
Q. Did you know that you had anything to give her at that time?
A. No.
# # #
Q. All right, sir, let me ask you this. Did anyone ever tell you that during the probate of this will or at anytime thereafter because you were not named in the will you might have an interest in this — in the estate of your father — you might have an interest in this property?
A. No.
Q. No one ever told you this? When is the first time you knew this.
A. I don’t know.
* * #
Q. Let me ask you, when was the first time you knew that there was a problem caused by the fact that your father had not named you in the will?
A. I don’t know whether I understand it yet or not. I guess whenever the papers were served.
Q. All right, sir. And so it is true that no one, at any time, ever came in and said, Hugh, you are not named in this will, and because you are not named in this will you may have some interest in the estate? No one ever told you this?
A. Nobody ever told me that, no.
Q. All right, sir. And it is true, is it not, Mr. Webb, that you and the other members of your family did not at any point ever get together and say, Now listen, we all realize we have an interest in this estate, let’s give it to mother? Nobody ever said that, did they?
A. No.”

We are of the opinion that the trial court erred in quashing the execution. As early as 1861 this court held that a will wherein a living child is pretermitted does not void the will, but in so far as regards such child the testator shall be deemed to have died intestate and such child shall be entitled to such proportion, share or dividend of the estate, real and personal, of the testator, as if he had died intestate, and such child shall be entitled to recover from the devisees and legatees in proportion to the amount of their respective shares. Branton v. Branton, 23 Ark. 569.

In 1876 in the case of Trotter v. Trotter, 31 Ark. 145, Benjamin Y. Trotter willed 160 acres of land to his wife, Ellen, and her children; the said Ellen to have a life estate in the property or until death or remarriage. Mrs. Trotter was given the entire control and management of the estate and she was directed to keep it intact and manage it as it had been managed in the past. The will failed to mention Trotter’s children by a previous marriage. Mrs. Trotter renounced the will and took under the statute. The pretermitted children by the previous marriage filed suit for partition of the properties and Mrs. Trotter demurred to the complaint claiming her homestead rights in the property. After approving the widow’s rights to homestead under her renouncement of the provisions of the will, this court said:

“The plaintiffs propose by their bill to lay hold of this land and divide it among themselves — those who are not named in the will, as well as those who are.
They do not renounce the will, but take under it. Not having been named or provided for in the will, their rights are protected by treating them as heirs. The 12th section Gould’s Digest, 1075, provides that the children not named shall be entitled to recover from the devisees and legatees in proportion to the amount of their respective shares.
All that these plaintiffs have a right to is, that they shall have an equal share of the estate with the children named in the will; the will is not broken, but they are let in upon equal terms as beneficiaries.”

In Rowe v. Allison, 87 Ark. 206, 112 S. W. 395, Martha Allison died testate in Sebastian County and at the time of her death and at the time she made her will, her son, Samuel M. Allison, had predeceased her and left surviving George C. Allison and his sister Laura Allison, as minor children and only heirs of Samuel M. Allison. The will of Martha Allison directed that certain lands be sold by her administrator and the lands were sold under the will to different individuals who in turn sold to the Cherokee Construction Company. George C. Allison nor his sister were named in the will. George C. Allison brought suit against the administrator, R. A. Rowe, and the Cherokee Construction Company alleging that Martha Allison died seized and possessed of the described lands; that he is an owner of a one-tenth interest therein by inheritance from Sanuel M. Allison, who was the son of Martha Allison and who died intestate prior to her death; that by reason thereof, Martha Allison had died intestate as to the plaintiff, and that he was entitled to the share of the estate which he would have received had she died wholly intestate. He prayed that the deeds from Rowe, administrator, and from his grantees to the Cherokee Construction Company and all other deeds whereby it was sought to convey his undivided one-tenth interest in the lands be declared void in so far as they affect his title.

Demurrers to the complaint were overruled and judgment was entered in favor of Allison for reconveyance of a undivided one-tenth interest, for the possession of which a writ of possession was awarded. This court on' appeal considered the sufficiency of the complaint as if brought at law and stated:

“The rights of the omitted child could not be divested by the sale of the estate under the will, for the will was as to him inoperative. Had the property been sold under orders of the probate court for the purpose of paying debts or any other purpose over which the probate court would have jurisdiction, then different questions would be presented. But the only titles which the defendants have were obtained through a sale under the power of sale in the will.
It is insisted that the statute which renders the will inoperative gives a remedy against devisees and legatees. This is true, but it does not follow that it is the only remedy. It does not exclude an omitted child or grandchild from recovering land from purchaser of those devisees or legatees or from purchasers under the power of sale contained in the will. The statute makes the will absolutely inoperative as to such omitted child, and provides that he shall be entitled to such share and. portion of the estate as if the ancestor had died intestate. It provides further that he shall be entitled to recover of the devisees and legatees in proportion to the amount of their respective shares, and vests the probate court with power to decree such distribution; and provides further that a writ of scire facias shall issue against the devisees or legatees in case they refuse to pay. Sections 8020, 8021, Kirby’s Digest. But there is nothing in the statute to indicate that it was intended to remit the child solely to this action in the probate court against the devisees or legatees; and such a construction would enable devisees and legatees to defeat the whole purpose of the statute. The object of the statute is to give such omitted child such share as he would have received, had there been no will. And these provisions for relief against devisees and legatees are merely to enable the probate court, which would not otherwise have jurisdiction, to make the distribution and enforce the same. The share of the child is absolute, and such share cannot be defeated by being conveyed away, either under a power of sale in the will or by the devisees or legatees.”

In Yeates v. Yeates, 179 Ark. 543, 16 S. W. 2d 996, in referring to § 60-507 (b), supra, this court said:

“The statute above quoted expressly provides that, when a person makes a will and omits to mention the name of a child, every such person, as regards such child, will be deemed to have died intestate, and such child will be entitled to such portion, etc. And if a person die intestate, children inherit equally. Section 3471, Crawford & Moses’ Digest. They inherit the property, however, subject to the payment of deceased’s debts and subject to the widow’s dower.
A person can dispose of his property by will to persons other than his children or relatives. He may disinherit all of his children, but, in order to do so under our statute, he must name the children, and, independent of the statute, it must be clear from his will that he intended to disinherit them.”

We conclude that the trial court erred in quashing the execution. The title to real property vests immediately upon the death of the owner. If the owner dies testate the title vests in his devisees subject to provisions of the probate court for handling the assets of an estate. Of course, a widow has homestead and dower rights under the law and may renounce her rights under a will in favor of her constitutional and statutory rights. Ark. Stat. Ann. § 61-218 (1947). If the owner dies intestate, however, the title to his real property vests immediately in his heirs subject to appropriate provisions for administration under the code and subject to widow’s dower and homestead rights, if any. Dean v. Brown, 216 Ark. 761, 227 S. W. 2d 623. A child does not have the right to renounce the provisions of a will and take under the law. The child of a testator simply must take under the will of the testator when named in the will and such child takes under the law when not named in the will. Even when a widow renounces a will and takes under the law she must do so in writing. Ark. Stat. Ann. § 60-504 (Supp. 1969).

Ark. Stat. Ann. § 61-101 (1947) provides as follows:

“When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow’s dower in the following manner:
First: To children, or their descendants, in equal parts. * * *”

Thus, by the plain words of the statutes, the testator, Hugh Webb, is deemed to have died intestate as to Hugh Webb, Jr. under § 60-507 (b), supra. When Hugh Webb died intestate as to Hugh Webb, Jr. and his two sisters, the estate descended to them in equal parts, subject to the payment of debts and constitutional and statutory rights of the widow under § 61-101, supra.

Hugh Webb, Jr. only waived his right to notice in connection with the probation of the will. The probate court had the power to decree a distribution of the estate to the heirs under the law (Rowe v. Allison, supra), but it had no power to vest title in Mrs. Webb in the probation of the will because Hugh Webb died intestate as to his children, and the will was a nullity as to their legal rights in his property. We disagree with the trial court’s finding that the probate court did vest title to the property in Mrs. Webb. As we read the record in this case, the probate court did not attempt to vest title in Mrs. Webb. The probate court simply found that Mrs. Webb had on hand assets which according to the will should become the property of Nell /. Webb. The court then only authorized Mrs. Webb as executrix to deliver and distribute the assets to herself as provided by the decedent’s will. The title to the property vested by operation of law and not by the will of the testator or by probate court order. The probate court order by its own terms fell far short of vesting title at all. The property delivered and distributed by Mrs. Webb, under the probate court order, only changed the possession from her as executrix where it was subject to claims for the decedent’s debts, to her as the widow of Hugh Webb, free of claims against his estate. The order did not affect the title at all. Title to the property was not in issue in the probate proceedings and the title remained where the will and the statute left it and where it must remain until alienated or conveyed in proper manner and form. Ark. Stat. Ann. § 38-101 (Repl. 1962) and § 50-401 (1947).

The judgment is reversed.