author: John A. Fogleman, Justice.

text:
    Ruth ESTES v. Don MASNER et al
    5-4499
    427 S. W. 2d 161
    Opinion delivered May 6, 1968

      Terrdl, Rawlings, Matthews & Purtle, for appellant.

      Pickens, Pickens & Boyce and Kenneth Castleberry, for appellees.
   John A. Fogleman, Justice.

This appeal is from a decree of the Independence Chancery Court holding appellant in contempt of court and modifying an original custody award. For reversal, appellant contends that the trial court was without jurisdiction to hear the citation for contempt; that the notice of the contempt hearing was improper and invalid; and that the custody change is invalid due to lack of prior notice.

As to the facts necessary to decide this case, the record reflects that the parties were divorced in 1959. The divorce decree awarded custody of the children to their paternal grandparents. In 1966, appellant petitioned the court for temporary custody of the children and the court granted the relief, allowing appellant custody for a two-week period. Appellant immediately fled the country and proceeded to Puerto Eico. The former husband, who is an appellee in the custody proceeding, went to Puerto Eico with his father (who had been awarded custody of the children in the 1959 decree) to regain custody, and, having been enjoined from taking the children ont of Puerto Eico, he returned to this country and instituted criminal proceedings against appellant. Upon her return to the United States to answer the charges, appellant was arrested for contempt. Habeas corpus proceedings were commenced in this court, and a continuance was granted to have the records brought up. During the continuance, appellees filed a petition for citation for contempt in the trial court, and had the clerk mail notice of a hearing thereon to appellant. Upon failure of appellant to appear, the trial court held her in contempt for violation of the court’s temporary order and modified the 1959 decree so as to award the former husband custody of the children.

Appellant’s first contention is that the trial court lacked jurisdiction to hear the citation for contempt. She cites the proceeding in Puerto Eico and the habeas corpus hearing in this court, both of which were pending at the time of the trial court’s action, as grounds for her contention.

The nature of the proceeding in the Puerto Eican courts is not clear from the record, but assuming ar-guendo that at the time of the trial court’s disposition of this case there was pending a custody proceeding, such fact could have no effect on the jurisdiction of the trial court to punish, as for contempt, one who knowingly violated its order. This court has previously held that the mere pendency of a suit in another state did not preclude a suit in this state for the same cause. Moore & Company v. Emerick, 38 Ark. 203. With concern to the effect on the forum court of sister state judgments, Dr. Eobert A. Leñar, in his work on the Conflict of Laws, § 70, p. 132, states: “The mere pend-ency of an action in one state has no effect upon the right to bring an action in another. Whichever suit is first carried to judgment then bars the other, but it is only the rendition of judgment which has that effect.” As the case at bar involves only a pending suit in a foreign, rather than a sister state, court, it is obvious that the court below was in no way deprived of its jurisdiction to hold one in contempt for failure to comply with its valid custody order. See Lyerla v. Lyerla, 195 Kan. 259, 403 P. 2d 989. There is no contention that the Independence Chancery Court lacked jurisdiction to enter the 1966 temporary custody order, which required that appellant return the children to the grandparents at the end of two weeks. By her failure to return the children, appellant subjected herself to punishment for contempt. Meeks v. State, 80 Ark. 579, 98 S. W. 378; State v. Dowdy, 86 Ark. 140, 109 S. W. 1175.

The pendency of the habeas corpus proceeding in this court likewise could have no effect on the jurisdiction of the trial court to hear the citation for contempt. It is true that once an appeal is taken to, and docketed in, this court, the trial court is deprived of jurisdiction to further act in the matter. Andrews v. Lauener, 229 Ark. 894, 318 S. W. 2d 805. This is not to say, however, that the institution of a separate and distinct contempt hearing is precluded by the mere pendency of habeas corpus proceedings in this court. Proceedings in this court which are original in form, though appellate in nature, do not have the effect of stopping proceedings in the lower court, in the absence of action by this court so requiring. Henry v. Steele, 28 Ark. 455.

Appellant next avers that she was not given valid notice of the contempt hearing. We feel there is merit in this contention, and the portion of the decree holding appellant in contempt must be quashed for this reason. In Ex Parte Coulter, 160 Ark. 550, 255 S. W. 15, we held that it was the province of the court, and not that of an attorney, to cite one to appear and answer a charge of contempt. In the case at bar, the appellant received a “Notice of Citation,” but it was issued by the clerk of the trial court at the behest of appellees’ attorney, and, from all that appears of record, without ever having been brought to the attention of the trial court whose exclusive duty it was to determine whether a prima facie showing of contempt had been made.

With regard to the modification of the 1959 custody award, appellant contends that she was not adequately notified that the custody issue would be heard by the court. With this we also agree. Appellees’ attorney filed his “Petition for Citation” on May 2, 1967, and by mail requested the Chancery Court Clerk to forward a copy of the notice of citation, together with a copy of the petition, to appellant and her attorneys. Although this was done, it cannot be said that appellant was sufficiently apprised of the nature of the hearing, as neither the petition nor the notice mentions the custody issue. While the Independence Chancery Court retained jurisdiction of the custody issue (Myers v. Myers, 207 Ark. 169, 179 S. W. 2d 865), before it could lawfully take any further action thereon, it was necessary that the interested parties be properly notified. The mode of notice, not being specified by statute, must be “reasonably calculated” to afford the opposite party an opportunity to be heard. Seaton v. Seaton, 221 Ark. 778, 255 S. W. 2d 954. “Once a defendant is effectively brought into court, however, by whatever method, he is subject to all the processes of the court which may legitimately be applied in that case. This includes * * * new orders or modifications in alimony and custody awards * * * provided only that the new step in the proceeding be brought within the limits allowed by law for it * * * Further, he is entitled to reasonable notice of the reopened proceedings. This does not require new service, but only some formal notice having a reasonable tendency to give actual notification.” Leñar, The Law of Conflicts of Laws, § 32, pp. 52-53. Even if the notice was actually received by appellant, it was not reasonably calculated to make appellant aware of the custody issue. For this reason, the custody modification will be reversed.

The decree is reversed.

Ward, J., not participating.

       It is not clear from, the record whether appellee commenced the criminal proceedings 'before or after his having been enjoined from removing the children from Puerto Rico, but, for purposes of this decision, this fact is immaterial.

       Counsel for both parties apparently concede that some type of proceeding was pending in the Puerto Rican courts.


source: Caselaw Access Project

license: Public Domain

text:
    INSURED LLOYDS v. O. L. MAYO
    5-4520
    427 S. W. 2d 164
    Opinion delivered May 6, 1968

      Harper, Young, Durden & Smith, for appellant.

      .Donald Poe, for appellee.
   John A. Fogleman, Justice.

Appellant insurance company seeks reversal of an adverse judgment in a suit by one of its insured for an automobile collision loss. The only dispute between the parties was the amount to which appellee was entitled under the policy. Appellant states three points for reversal, to wit:

I. The jury’s verdict was contrary to the law and to the evidence.
II. The trial court committed reversible error in giving instruction no. four.
III. The trial court committed reversible error in refusing to grant a mistrial for the improper remarks of counsel for plaintiff in his opening statement.

I.

The gist of appellant’s argument on this point is that there was no definite proof of the value of the Rambler automobile at the time of the purchase or at the time immediately preceding the accident and that the person testifying as to the salvage value of the automobile was not qualified to do so. The dealer who sold the automobile to appellee was the only witness called by appellee on the question of values. He had been a Rambler dealer for 10 years. He sold the vehicle to ap-pellee about May 23, 1965. He could not recall the date when appellee’s car was wrecked, but it was brought into his place of business and had remained there. This dealer stated that he was familiar with the vehicle, that he believed that he was acquainted with its fair, reasonable market value immediately before the wreck and that he made an inspection of the car to determine its salvage value. He testified that the salvage value was about $350.00' and that the market value before the collision was approximately $2,350.00 or $2,400.00. He considered the vehicle to be a total loss. He estimated that the total cost of repair would be about $1,650.00, but that the vehicle could not be restored to the condition it was in immediately before the wreck. On cross-examination he stated that the list price of the automobile was $2,400.00 or $2,500.00 and that the actual sales price was probably less than, but close to, that amount. He could not give the date of the wreck, but could only say that it was in November 1965. His estimate of repairs was made in April 1966.

Appellant now complains that there was no definite proof of the value, either before or after the collision, since the dealer was not qualified to testify about salvage values and since he prefaced his statements of value with the words “about” and “approximately.” Because of this, appellant claims that appellee’s recovery was limited to the cost of repairs. Appellant made no objection to the testimony of this witness in this regard, however, and he is not now in any position to raise these questions. Sandidge v. Sandidge, 212 Ark. 608, 206 S. W. 2d 755. Absolute certainty should not be required of a witness on values. The use of the qualifying words by the witness in stating values does not make his testimony legally insufficient to support a verdict. See St. Paul Fire & Marine Ins. Co. v. Martin, 204 Ark. XVIII, 165 S. W. 2d 606.

Appellant urges that its witness Crabtree was a highly qualified appraiser and that his testimony, contrary to that of the dealer, established that the vehicle could have been repaired for a total of $547.48. The testimony presented fact issues for the jury. The credibility of these witnesses and the weight to be given their testimony were matters which have been resolved against appellant by the verdict.

II.

Appellant asserts that the trial court erred in giving an instruction to the jury describing the measure of damages as the difference in the fair market value of appellee’s automobile immediately before and immediately after the collision, but permitting consideration of the reasonable costs of repairs. This contention is based upon a limitation of liability in the policy which reads:

“The limit of the company’s liability for loss shall not exceed the actual cash value of the property, or if the loss is of a part thereof the actual cash value of such part, at time of loss, nor what it would then cost to repair or replace the property or such part thereof with other of like kind and quality, nor with respect to an owned automobile described in this policy, the applicable limit of liability stated in the declarations.”

Appellant made only a general objection to the giving of the instruction and offered no instruction. Since appellant made no specific objection pointing out the defect in the instruction and did not offer an instruction containing the limitation on recovery which it now contends should have been incorporated, we can only consider whether the instruction given was inherently wrong. Laflin v. Brooks, 180 Ark. 1167, 22 S. W. 2d 169; Vogler v. O’Neal, 226 Ark. 1007, 295 S. W. 2d 629; St. Louis San Francisco Ry. Co. v. Friddle, 237 Ark. 695, 375 S. W. 2d 373. The instruction was not inherently wrong. An instruction is inherently erroneous only when it could not be correct under any circumstances. Abel of Arkansas, Inc. v. Richards, 236 Ark. 281, 365 S. W. 2d 705. Where an alternative limit on the liability of an insurance company is the actual cash value of an automobile, the instruction given is correct. Southern Farm Bureau Ins. Co. v. Gaither, 238 Ark. 50, 378 S. W. 2d 211; Resolute Ins. Co. v. Mize, 221 Ark. 705, 255 S. W. 2d 682.

III.

In his opening statement, the attorney for appellee stated that the jury would have to allow the appellee the full amount prayed for in the complaint to enable ap-pellee to recover attorney’s fees and a statutory penalty. Motion for mistrial was made and denied after the trial judge admonished the jury not to consider the remarks. We need not consider whether there was error in the failure of the court to grant a mistrial because of the improper statement. Appellee sought a $2,000.00 recovery in his complaint, but during the trial -reduced this amount to $1,950.00. The jury returned a verdict for $1,750.00. It is obvious that appellant was not prejudiced. We will not reverse for error where it is evident that it did not affect the verdict. Lamden v. St. Louis Southwestern Ry. Co., 115 Ark. 238,170 S. W. 1001; U. S. Express Co. v. Rea & Co., 121 Ark. 284, 181 S. W. 888; Williams v. Newkirk, 121 Ark. 439, 181 S. W. 304; Street v. Shull, 187 Ark. 180, 58 S. W. 2d 932; Van Houten v. Better Health Ins. Ass’n of America, 238 Ark. 815, 384 S. W. 2d 465.

Since we find no prejudicial error, the judgment is affirmed.


author: Conley Byrd, Justice. J. Fred Jones, Justice,

text:
    Paul BRYANT v. V. J. BRADY
    5-4455
    427 S. W. 2d 179
    Opinion delivered May 6, 1968

      Thompson & Thompson, .for appellant.

      Jones & Stratton, for appellee.
   Conley Byrd, Justice.

This litigation arises over a contract whereby appellant Paul Bryant employed ap-pellee V. J. Brady to do certain clearing. Brady initiated suit claiming that after credit for payment of $1,000 he was entitled to a balance of $1,933.50. Bryant denied that Brady had performed his contract and filed a cross action claiming damages, among other things, for loss of rental, for loss on sales of cows, and for pain and mental anguish, all ini the amount of $6,050. From, a jury verdict awarding Brady a judgment of $1,500, appellant appeals, contending that he was not permitted sufficient time to make discovery; that the verdict was excessive and not warranted by the facts; and that the “jurors did not truthfully answer questions proposed to them by the judge as to their knowledge and acquaintance with the plaintiff as they were qualified.” Since we reverse the pase upon the third point, we do not reach the first two.

The record on the third point shows that juror Estel York had known Brady all of his life and that during the time of the lawsuit Brady was purchasing gasoline from him. He did not recall Judge Roberts’ asking the jurors, “Do you, or any of you, know the plaintiff or the defendant?”

Juror T. F. Bryant (not related to appellant) had known Mr. Brady all of his life. During 1960 and 1961 he and Brady had together bought a cotton stripper and used it in their farming operations. When first asked if he recalled Judge Roberts’ asldng him, “Do you know the plaintiff or defendant?” juror Bryant answered, “No sir, that question was not asked.” Subsequently juror Bryant testified that he did remember Judge Roberts excusing one or two jurors. Thereafter the following occurred:

“Q Do you know what questions were asked of them?
A Well, not particularly I don’t. Seems like one of them had business with him the last year or two or something, maybe currently doing business with him.
Q What prompted that answer — that response, Mr. Bryant, by that prospective juror ?
A I don’t know. Maybe he was asked, I don’t know. Maybe be was currently doing business with him.
Q Well, are you saying that these jurors may have been asked some question that prompted that response, or you don’t know, or didn’t hear, or what is your recollection of that?
A Well, I believe the question was asked, ‘Have you done business with Mr. Brady, or currently doing business with him, in the last year or so?’
Q You did hear that question, ‘Have you done business with Mr. Brady in the last year or so?’
A Yeah.
Q You heard that question?
A Yeah.
Q And did you see anyone that made a response to it?
A Well, there was some left the room; I suppose that was the cause of it.”

Juror J. M. Cartwright testified that he had known Mr. Brady for a long time and that he did not respond when Judge Roberts asked if any of them knew the plaintiff or the defendant.

Juror Ellis Lasley testified that he had known Brady all of his life, that he had operated a gin from 1920 to 1963 and that Brady had ginned cotton with him. He recalled Judge Roberts’ asking some questions and people raising their hands and indicating an answer or response to those questions. He remembered that a Mr. Hiegel had made a statement and that Judge Roberts had excused Mr. Hiegel. When specifically asked, “Do you remember Judge Roberts asking the jury panel, ‘. . . Do any of you know the plaintiff or defendant?’ ” juror Lasley answered, “I don’t know whether he said that or not.”

The record on the motion for a new trial obviously shows that Judge Roberts, in qualifying the jury, asked if any of the jurors knew Brady or Bryant and if any of the jurors were doing business with either Brady or Bryant. The record also establishes that these four jurors remained silent to the questions of the judge, although other prospective jurors raised their hands or otherwise responded to the judge’s questions.

In Missouri Pac. Transportation Co. v. Johnson, 197 Ark. 1129, 126 S. W. 2d 931 (1939), we recognized that the silence of a juror in a situation such as this amounts to an answer. Certainly here, where other jurors understood the questions and responded, we must accept the jurors’ silence as a responsive answer to the court’s questions.

In D. F. Jones Construction Co. v. Fooks, 199 Ark. 861, 136 S. W. 2d 487 (1940), two of the jurors were qualified by the trial court on the basis that they had not formed any opinion about the lawsuit and “that they had not been talked to by anyone relative to the case.” On motion for a new trial it was shown that one Clyde Robins, prior to the trial, had offered the two jurors a bribe to return a verdict for Fooks. In holding that the trial court abused its discretion in failing to set aside the verdict, we said:

“The jury system is a great institution and should hold itself aloof from any and all corrupt influences. Members of juries owe it to themselves and to the great system to preserve the integrity of their verdicts. If there is substantial evidence in the case to support the verdict of the jury this court will not try a case de novo, but will accept and receive the verdict of the jury as final on issues involving not only property rights, hut issues involving life and death. The only way to preserve the integrity of the verdicts of juries and keep the stream of justice pure is to set aside verdicts returned by juries which have been tampered with or attempted to he tampered with. ’ ’

Here we think the trial court abused its discretion by not setting aside the verdict. Obviously, the jurors did not fairly answer the questions put to them by the court. Of course, truthful answers to the questions would not necessarily have disqualified the jurors, but how can we assert that they returned a fair verdict when they did not give fair answers to questions of the court? When viewed from the standpoint that “justice ought not only to be fair but appear to be fair,” Arkansas State Hwy. Comm’n v. Young, 241 Ark. 765, 410 S. W. 2d 120 (1967), we think the trial court under the record here abused its discretion in not setting aside the verdict.

Appellee argues that the motion for new trial can not be considered because it was not verified as required by Ark. Stat. Ann. § 27-1905 (Repl. 1962), which provides :

“Norm of application. — The application must be made by motion, in writing, setting forth in separate paragraphs the grounds or assignments of error relied upon for reversal of the verdict or decision. The grounds mentioned in the second, third and seventh subdivisions of section 1536 [§ 27-1901] must be sustained by affidavits or other competent testimony, showing their truth, and may be controverted in the same manner. [Civil Code § 374; C. & M. Dig., § 1315; Pope’s Dig., § 1540; Acts 1939, No. 167, § 1, p. 402.]”

We do not agree with appellee’s interpretation of the statute. As amended by Act 167 of 1939, the statute requires only that the grounds mentioned in the second, third and seventh subdivisions of Ark. Stat. Ann. §27-1901 (Repl. 1962) must be sustained by “affidavits or other competent testimony, showing their truth.” In this case appellant sustained his grounds by the sworn testimony of the jurors in open court. Furthermore, the motion for new trial may be considered as having been brought under the first section of § 27-1901, which is not affected by § 27-1905.

Reversed and remanded.

Jones, J., dissents.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion in this case and I would affirm the judgment on all three points.

Appellant’s motion for a new trial and his third point based thereon carry implications not sustained by the record in this case. Appellant alleged in his motion for a new trial “that two of the jurors, when asked the question, ‘Do you know or have any business with either party of this law suit % ’ remained silent; that one of said jurors lives approximately one mile from the plaintiff, and one of the other jurors operates a grocery store and was doing business with the plaintiff immediately prior to the date of trial.” The record does not reveal that such question was even asked.

The record is completely silent as to the form and substance of any of the questions propounded to the jurors by the trial court judge in qualifying the jury on voir dire, and the record does not reveal that appellant’s attorney asked any questions at all, or attenpted to do so, until some two months after the case was tried when four of the jurors were questioned at the hearing on appellant’s motion for a new trial.

The only record pertaining to the questions propounded, and the answers given, in qualifying the jury on voir dire, lies wholly within the allegations in appellant’s motion for a new trial, and within the memory of the four jurors who testified at the hearing on the motion for a new trial, none of whom were sure what questions were propounded to them by the trial judge.

In the ease at bar it is not contended that the jurors answered falsely concerning their qualifications when questioned by the trial court on voir dire, the allegation is, that they remained silent when the questions were propounded to them. I recognize that silence in this connection amounts to an answer, but, even assuming that the questions were asked and had been answered in the affirmative, knowing the parties to a lawsuit or having done business with them obviously does not disqualify a juror. If the appellant desired information on this point to assist him in the exercise of his peremptory challenges, he had a perfect right to call any failure to answer to the attention of the trial court, and he had a statutory right to propound further questions (within the discretion of the trial court) to the prospective jurors concerning their qualifications. Ark. Stat. Ann. § 39-226 (Repl. 1962).

In Jones Construction Co. v. Fooks, 199 Ark. 861, 136 S. W. 2d 487, cited by the majority, the jurors had been promised, as a bribe, 2% of the amount of any verdict they would return in favor of the plaintiff. They did return a verdict for the plaintiff but they had failed to reveal the offer of the bribes in answer to questions propounded to them on voir dire. The record is clear in the case at bar that Brady was well known in Faulkner County as well as in Prairie and Lonoke Counties. The failure of jurors to reveal that they were acquainted with him, as alleged in the case at bar, is not even close to the failure to reveal an offer of a bribe as testified to, and admitted, by both the offeror and the jurors in the Fooks case. The only prejudice appellant could have claimed, in the case at bar, by the jurors’ failure to answer the questions he says were propounded to them, would have been in exercise of his three peremptory challenges in the selection of a drawn and struck jury.

At the hearing on appellant’s motion for a new trial, the trial court heard the testimony of four jurors, York, Bryant, Cartwright and Lasley. York testified as follows on the point in issue:

“Q. Do you know Mr. Brady?
A. Sure, everybody knows him.
Q. Do you recall Judge Roberts asking the jurors before they were chosen, ‘Do you, or any of you, know the plaintiff or defendant’?
A. No, sir.
Q. You don’t recall that question being asked?
A. No, sir, I sure don’t.”

On this point Bryant testified as follows:

“Q. Do you recall the questions that Judge Russell Roberts asked you as you were sitting on the other side of the courtroom, before you went on to the jury?
A. I pretty well recall them.
Q. Do you recall him asking you a question, ‘Do you know the plaintiff or defendant?’
A. No, sir, that question was not asked.
Q. That question was not asked?
A. It sure wasn’t.
# # #
Q. Do you know Mr. Y. J. Brady?
A. All my life.
Q. And how far do you live from him?
A. Well, it’s about two mile.
Q. What is your acquaintance with him, Mr. Bryant?
A. Well, I just know him, I know everybody that lives around here.
* # #
Q. Have you ever done any business, bought cattle or had work done by Mr. Brady?
A. Not in the past several years.
Q. Well, what business had you had with Mr. Brady at any time?
A. Well, about ’60 or ’61 we bought a cotton stripper, and I run it and stripped our cotton that fall.”

On redirect examination Mr. Bryant testified as follows :

“Q. Mr. Bryant, do you recall a man who was working for the bank here in Conway raising his hand and making some statement when you were inquired of by Judge Roberts?
A. No, I don’t.
Q. Do you remember Judge Roberts excusing any jurors; telling them they would be excused from the panel that day?
A. Yeah, I remember one or two being excused.
Q. Do you remember who those were by name?
A. No, I don’t.
Q. Just remember some people? Do you know why they were excused?
A. No, I don’t.
Q. Do you know what questions were asked of them?
A. Well, not particularly I don’t. Seems like one of them had business with him the last year or two or something, maybe currently doing business with him.
Q. What prompted that answer — that response, Mr. Bryant, by that prospective juror?
A. I don’t know. Maybe he was asked, I don’t know. Maybe he was currently doing business with him.
Q. Well, are you saying that these jurors may have been asked some question that prompted that response, or you don’t know, or didn’t hear, or what is your recollection of that?
A. Well, I believe the question was asked, ‘Have you done business with Mr. Brady, or currently doing business with him, in the last year, or so?’
Q. You did hear that question, ‘Have you done business with Mr. Brady in the last year or so?’
A. Yeah.
Q. You heard that question?
A. Yeah.
Q. And did you see anyone that made a response to it ?
A. Well, there was some left the room; I suppose that was the cause of it.
Q. Do you know, whether or not Mr. York responded to that question?
A. I don’t know.

On this same point Cartwright testified as follows:

“Q. Do you know Mr. Brady?
A. Yes, sir.
Q. How long have you known Mr. Brady?
A. Oh, a ■ long time.
Q. What relationship have you had with Mr. Brady, either business or social?
A. None.
* # *
Q. Do you recall the day of this trial?
A. Yeah.
* * *
Q. Do you recall Judge Roberts asking questions of the jury panel; the entire panel at the time the jury was seated at the Judge’s right?
A. Well, I don’t remember.
Q. Do you recall that he asked some questions?
A. Yeah.
Q. Do you recall any of those questions?
A. (iShakes head negatively)
Q. Do you recall whether or not you made a response to any of those questions?
A. I didn’t.
Q. You did not?
A. (Shakes head negatively)
Q. Do you remember whether or not Judge Roberts asked if any person — if any member of the jury had done any business with Mr. Brady?
A. He might have.
Q. Do you remember if any person made a response to that question?
A. (Shakes head negatively)
Q. You don’t remember whether anyone did or not?
A. (Shakes head negatively)
Q. Do you know whether or not — do you remember whether or not Judge Roberts asked the question, ‘Do any of you know the plaintiff or defendant?’
A. Yeah.
Q. Did he ask that question?
A. I think so.
Q. Did you make any response to that question?
A. No.
Q. You did not?
A. (Shakes head negatively)
Q. How long have you known Mr, Brady?
A. Oh, several years.
# # #
A. I’ve been acquainted with him for a long time, as far as knowing him, and as far as talking with him, I’ve talked with him very little.
Q. All right. How recently immediately preceding the trial had you had discussions with Mr. Brady?
A. I don’t remember of any.”

Mr. Ellis Lasley testified as follows:

“Q. How long have you known Mr. Brady?
A. All his life.
# # #
Q. Do you recall some questions being asked and people raising their hand, or indicating an answer or response to those questions?
A. Yes, I think so.
Q. Do you recall a comment or a statement by a man who was an employee of the Conway. Bank?
A. I remember Mr. Hiegel making a statement.
Q. Do yon remember what bis statement was?
A. Nothing more than they were both customers of his, and as I understand that’s what he said.
Q. Do you remember what prompted him to make that response? Did Judge Roberts ask him a question, or ask the jury panel a question?
A. Really, I don’t know whether he did, or whether he just asked if he could get off because he was — I’m not sure on that question.
Q. Do you recall Judge Roberts asking any questions to the panel as they sat over there?
A. Well, I remember him saying the reason he would be excused.
Q. The reason Judge Roberts was being excused?
A. Yes, from choice; that he was related to him.
Q. Do you remember Judge Roberts asking the jury panel, ‘Do you know the plaintiff or defendant? Do any of you know the plaintiff or defendant?’
A. I don’t know whether he said that or not.
Q. Would you say it again, please, sir?
A. I say I don’t know whether he said that or not. I don’t remember.
Q. Do you remember whether he asked the question, ‘Do you, or any of you, have any business transactions recently with the plaintiff or defendant?’
A. I don’t remember; I sure don’t.
# * #
Q. You do not recall Judge Roberts asking if you knew or were acquainted with either party?
A. No, I sure don’t.” (Emphasis supplied).

The record is silent as to why Judge Roberts disqualified himself, but the record does reveal Judge Roberts’ statement to the jury in disqualifying himself, and the record does not sustain Mr. Lasley’s version if Las-ley was, in fact, referring to Judge Roberts disqualifying himself because of relationship to the appellee. According to the record before us, Judge Roberts’ statement to the jury in disqualifying himself was as follows:

“Ladies and Gentlemen of the jury, due to circumstances beyond my control and under the laws of our State, it is necessary I disqualify this morning, and Judge Bradley has been elected by the Bar of the City of Conway, Arkansas, Faulkner County, to take my place.”

In the case of Fones Brothers Hdw. Co. v. Mears, 182 Ark. 533, 32 S. W. 2d 313, the trial court in qualifying the regular panel of jurors on their voir dire, inquired of all members of the panel if they were related by blood or marriage to either of the parties to the lawsuit by consanguinity or affinity, to which all except one, replied in the negative. After the verdict, it was learned that one of the accepted jurors was a first cousin to the defendant. Upon appeal from an order of the trial court overruling a motion in arrest of judgment and for a new trial, this court said:

“We have stated the rule on this subject to be that ‘when objection is made to a juror after the ver-diet for the first time, due diligence must be shown by the objecting party,’ and that it then ‘becomes to some extent a matter of discretion with the trial court as to whether or not the verdict shall be set aside; and when there is no fraud intended or wrong done or collusion on the part of the successful party, it is not reversible error for the trial court to refuse to set aside the verdict.”

In the Mears case, as in the case at bar, the record did not show what questions were asked. The motion was supported by affidavits in that case, however, and it was brought here on certiorari. In sustaining the trial court in the Mears case, we said:

“The majority is of the opinion that in the state of the record there was no such showing of due diligence made by the objecting party (the objection being made to the juror after the return of the verdict for the first time) as would require the granting of the motion to refuse to enter judgment on the verdict and refusing to grant the motion for a new trial on the ground of the alleged relationship of the juror to appellee. As heretofore held, it is a matter of discretion of the trial court as to whether the verdict should be set aside when objection is made to a juror after the verdict for the first time, and the majority of the court from the state of the record is not able to say that the court abused its discretion in overruling the motion and refusing to grant a new trial because of the alleged relationship. ’ ’

The juror in the Mears case was legally disqualified, but in that case, as in the case at bar, the record did not show diligence on the part of appellant. See Mo. Pac. RR. Co. v. Bushey, 180 Ark. 19, 20 S. W. 2d 614; James v. State, 68 Ark. 464, 60 S. W. 29.

It may be that appellant now feels he could have done a better job in the exercise of his peremptory-challenges, but I am unwilling to accept the allegations in any motion for a new trial as recorded evidence supporting the allegations in the motion, and I am unwilling to put Faulkner County and the parties to this lawsuit to the additional expense of a new trial because of alleged failure of jurors to answer questions they do not recall having been asked; questions that neither the record nor the proof reveal were asked, and questions that if asked and answered in the affirmative, would not have disqualified the jurors anyway.

By the exercise of due diligence, appellant could have learned all he had a right to know about the jurors at their examination on voir dire. Appellant has failed to show due diligence in support of his motion for a new trial and I would affirm the trial court in denying the motion.

       Although Judge Roberts qualified the jury, he disqualified himself, and Hon. Rolland Bradley was elected to serve as special judge in his stead.


author: Carleton Harris, Chief Justice.

text:
    Robert L. CROUCH et al v. John CROUCH et al
    5-4573
    431 S. W. 2d 261
    Opinion delivered May 13, 1968
    [Supplemental opinion on denial of rehearing, September 9, 1968.]

      Kirstíh, Cathey & Brown, for appellants.

      Rhine & Rhine, for appellees.
   Carleton Harris, Chief Justice.

This is the second appeal in this case. In Crouch v. Crouch, 241 Ark. 447, 408 S. W. 2d 495, this court, in reversing the Chancery Court decree, held that tax deeds, obtained by two heirs of W. M. Crouch, deceased, to a certain 160 acres of land in Greene County, Arkansas, amounted only to a redemption for all heirs of W. M. Crouch, the two being co-tenants with the others. The two who had purchased the tax titles deeded the property to Harold J. Conrad and wife, appellees herein, endeavoring to convey absolute ownership. The appellees cleared the 160 acres, and farmed the land in 1964. The Greene Chancery Court, following our opinion, held on April 3, 1967, that appellants owned collectively an undivided 5/7 interest in the 160-acre tract, and that Conrad and wife owned a 2/7 interest, and it was determined that a partition sale should be held. No testimony was taken at that time, and the court, on the basis of the evidence at the first trial (.before the reversal), held that the Conrads should have compensation for the clearing of the acreage, from the sale proceeds, to the extent of $200.00' per acre, totaling $32,000.00. It was found that the value of the lands before the clearing was $150.00 per acre ($24,000.00), and that the total value of the lands, as of the time of the order, was $350.00 per acre, totaling $56,000.00. The sale was held on June 3, 1967, with appellees being the highest bidders, the amount of the bid being $28,500.00, approximately $178.00 per acre. Pursuant to a motion filed by appellants, and after a hearing, the court set aside all portions of its April 3 decree with respect to the amount which the Conrads were to receive for clearing the lands, and refused to confirm the sale due to the inadequacy of the bid. A new hearing was set for August 2, 1967, at which time appellants asked that the hearing be postponed on the matter of improvements until after another sale (which request had also been made at the April 3 hearing). The court refused the request, and proceeded to take evidence relating to the value of the land. At the conclusion of the hearing, the court found that the value of the lands was $48,000.00, holding that the value of same before being cleared was $24,000.00, and that the clearing had given an additional value of $24,000.00. Though the Conrads had not complied with the provision of the April 3 decree which required them to account for rents they had received since 1963 (this particular provision not having been vacated), the court awarded appellees a lien on the proceeds of the sale to the extent of the first $24,000.00 received therefrom, and authorized the Conrads to bid at the new sale without making any bond, except as to bids in excess of $24,-000.00. At the sale, the Conrads were again the highest bidder, the bid, however, this time, amounting to only $25,100.00, or approximately $157.00 per acre. The Greene Chancery Court overruled appellants’ objection to this sale, and refused to vacate or modify its findings of August 2. This appeal is from the August 2 decree, it being contended that the court erred in awarding the Conrads a lien upon the first $24,000.00 received, and that the court should have held that the primary equity was the right of appellants to receive 5/7 of this amount; further, that the award to appellees for clearing the land should have been based upon the actual sale price obtained at the sale, and that the court should have required appellees to render an accounting for any rents or profits before ordering the sale.

Though, as pointed out by appellants, the fact that the sales only brought the prices of $28,500.00 and $25,-100.00 somewhat indicates that the values established by the Chancellor were erroneous, it is not necessary to discuss that phase, of the case in this opinion, for we think clearly that the court erred in not first requiring appellees to account for any rents or profits derived from farming the lands. Ark. Stat. Ann. § 34-1423 (Eepl. 1962), the first section of the “Betterment Act,” provides that any person who, believing himself to be the owner, under color of title, has peaceably improved any land, which shall judicially be determined to belong to another, shall be entitled to the value of improvements made, and the amount of taxes paid. Section 34-1424, the second section of the act then provides:

“The court or jury trying such cause shall assess the value of such improvements in the same action in which the title to said lands is adjudicated; and on such trial the damages sustained by the owner of the lands from waste, and such mesne profits as may be allowed by law, shall also be assessed, and if the value of the improvements made by the occupant and the taxes paid as aforesaid shall exceed the amount of said damages and mesne profits combined, the court shall enter an order as a part of the final judgment providing that no writ shall issue for the possession of the lands in favor of the successful party until payment has been made to such occupant of the balance due him for such improvements and the taxes paid; and such amount shall be a lien on said lands, which may be enforced by equitable proceedings at any time within three [3] years after the date of such judgment.”

It is at once apparent that appellees are not entitled to any lien until it is established that the value of the improvements exceed any profits made, or any damage to the land.

Under this statute, appellants were entitled to receive credit for 5/7 of any rents and profits realized before the sale was held. Of course, appellees were given an advantage in being permitted to bid with a credit of $24,000.00, for they were only required to give bond for any amount in excess of that figure. Then too, the amount awarded actually was, in effect, a judgment against the appellants, and they were entitled to the proportionate stare of rents and profits more or less as an offset against the amount awarded for clearing the land. This view was expressed as early as 1909 in the case of McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88, which probably has been cited more than any other Arkansas case in litigation involving the betterment act. The case is comprehensive, and covers most, if not all, questions that might arise under this statute. Relative to rents and profits, the court further said:

“The various rules that have been formulated by courts of equity in attempting to make equitable adjustments of the rights of the occupant, on the one hand, to the value of the improvements and the taxes paid, and, on the other hand, of the owner to the rents and profits, were based upon such principles of equity as in the opinion of those courts were right. In the uncertainty of these decisions, the betterment act was enacted to definitely fix these respective rights, and it fixed as a substantive right for the owner of the land the rents of the lands for the period therein named, with the improvements which the lands then possessed. The general rule adopted by the courts for the measure of damages in cases for the recovery of mesne profits is the fair rental value of the lands during the period of the withholding. Analogous to that ruling, the betterment act is the fair rental value of the lands in their improved condition during the period named in the betterment act. This means the net rents — -that is to say, the amounts expended for necessary repairs and for such necessary expenses as under the custom of the country have been paid for management and collection of the rents should be deducted from the gross rental value.”

Appellees argue that appellants have lost their right to prosecute this appeal, and are estopped to challenge any findings of the lower court set out in the original decree (April 3), or amendment thereto. This argument is based on the fact that appellants had filed a notice of appeal to the original decree of April 3, but did not prosecute same. The sale was held and subsequently set aside by the trial court, which amended its decree on August 2. We do not agree with' appellees’ contention. The court had a right to set aside the sale, and, at any rate, appellees are not in a position to complain, since they did not appeal from the order setting aside the sale and amending the April 3 decree. Appel-lees further state that appellants did not make a super-sedeas bond, but permitted the commissioner to proceed with the sale, and actually took part in the bidding. We do not consider this last fact (taking part in the bidding), since this does not appear in the original reclord, and is offered as a supplement to the transcript through the affidavit of Gerald Phillips, Chancery Court Clerk and Commissioner in Chancery. The affidavit relates to matters that took place at the sale, was not offered into evidence at any hearing, and was not designated by either side as a part of the record for the purpose of this appeal. As to the failure to make a supersedeas bond, it may well be that appellants were unable to make this bond, and were therefore pSweriess to prevent the sale. Of course, it is quite likely that, if the property had been purchased for a price commensurate with the value placed upon it by appellees (and found by the court), this appeal would not have been pursued, but, feeling aggrieved at the findings of the court, appellants are entirely within their legal rights in bringing this appeal.

Because of the court’s error, as herein pointed out, the decree is reversed, and the cause remanded for further proceedings.


author: Carleton Harris, Chief Justice. George Rose Smith, Justice,

text:
    AMERICAN AVIATION, INC. v. AVIATION INSURANCE MANAGERS, INC.
    5-4575
    427 S. W. 2d 544
    Opinion delivered May 13, 1968
    [Rehearing denied September 3, 1968.]

      Crouch, Blair & Cypert, for appellant.

      TAttle, Enfield & Lawrence, for appellee.
   Carleton Harris, Chief Justice.

Appellee, Aviation Insurance Managers, Inc., hereafter called A.I.M., instituted suit seeking to recover from appellant, American Aviation, Inc., hereafter called American, a 1961 Cessna 172 Skyhawk aircraft of the alleged value of $3,125.00. A bond was filed by appellee, hut a cross-bond was filed by appellant, and the airplane remains within the possession of appellant. This plane was damaged in an accident in Texas in May, 1965. The registered owner in the office of the Administrator of the Federal Aviation Agency, Oklahoma City, is Texas Airmotive Company, Inc., hereafter called T.A.C., of Bryan, Texas. The plane was insured by appellee, and on June 7, 1965, ap-pellee issued a settlement draft in payment of the loss to T.A.C., and received in return a signed hill of sale to the aircraft on a Federal Aviation Agency form. The name of the buyer was left in blank. The plane was taken to Weiss International Airport at San Antonio, Texas, where a number of salvage bids were received, the highest bid being made by Charles Collier in the sum of $3,125.00, which was accepted. Collier had previously purchased aircraft salvage from appellees. On June 13, 1965, Walter Kostich of Tulsa, Oklahoma, went to the Weiss Airport for the purpose of picking up the airplane, and the aircraft was delivered to him by a representative of AJ.M., apparently under the belief that Kostich was acting for Collier. The log books for the engine and aircraft were forwarded to Collier. On June 23, 1965, Collier was informed by letter from A.I.M. that the company understood that he had picked up the aircraft, and he was advised that the bill of sale would be immediately forwarded upon receipt of his draft in the amount of $3,125.00. Upon Collier’s making inquiry as to whom the draft should be made payable, A.I.M. advised that it should be made payable to the company. Thereafter, several letters seeking payment were sent to Collier, and on October 22, 1965, following a telephone request by Collier, A.I.M. sent a customer sight draft to a Dallas bank, which was returned “unpaid,” and a second sight draft was also returned stamped likewise.

On March 31, 1966, A.I.M. received a request from Mr. .Kostich to forward a bill of sale to him. Thereupon, the insurance company made an investigation, and learned the following facts:

Kostich, after obtaining the craft in San Antonio, took it to Tulsa, Oklahoma, and had the wings rebuilt. On September 8, 1965, Collier gave Kostich a bill of sale for the airplane, and was paid $1,000.00 by Kostich, the latter applying for registration of the aircraft in his name, but the application was rejected by the Federal Aviation Agency, because Kostich did not have a bill of sale from the registered owner, T.A.O. On November 20, 1965, Kosticb sold the aircraft to American, and gave that company a bill of sale. Appellant paid Kostich $4,175.00, and likewise made application for registration, bnt the application was rejected for the same reason that the application by Kostich had been rejected. In the meantime, American took the aircraft to Rogers Municipal Airport, Rogers, Arkansas. The case was tried on stipulated testimony, and on October 18, 1967, the Renton County Circuit Court ordered American to deliver possession of the plane to A.I.M., or upon its failure to do so, awarded appellees a money judgment in the amount of $3,125.00, together with interest. From the judgment so entered, appellant brings this appeal.

The question in this litigation is very simple, “Who owns the airplane?” This is a case of first impression in this state, and there does not seem to be a great deal of case law over the country. Appellee’s contention is that it holds the executed bill of sale from the registered title holder, is the owner, and therefore, is entitled to the aircraft, i. e., A.I.M. stands in the shoes of T.A.C., having paid that company the loss on the plane, and having received the bill of sale in return. Appellant’s argument is that it is a bona fide purchaser of the plane without notice that anyone other than Kostich was claiming any interest thereto.

Congress has preempted the field of registration and recording of title instruments affecting civil aircraft. Pacific Financial Corporation v. Central Bank and Trust Company, 5 Cir., 296 F. 2d 68. A central office has been established at Oklahoma City, Oklahoma for this purpose. Pertinent portions of 49 U.S.C.A. § 1403, provide as follows:

“(a) The Administrator shall establish and maintain a system for the recording of each and all of the following:
(1) Any conveyance which affects the title to, or any interest in, any civil aircraft of the United States; # * # >>

This covers sales, mortgages, leases, contracts of conditional sale, or any other instrument executed for security purposes. Subsection (c) provides as follows:

“No conveyance or instrument the recording of which is provided for by subsection (a) of this section shall be valid in respect of such aircraft, aircraft engine or engines, propellers, appliances, or spare parts against any person other than the person by whom the conveyance or other instrument is made or given, his heir or devisee, or any person having actual notice thereof, until such conveyance or other instrument is filed for recordation in the office of the Administrator: * * *”

Appellee did not record its bill of sale from T.A.C.; in fact, it is still holding same in blank, and as stated, its contention is that it still holds title to the aircraft, since it is holding the bill of sale. According to Bill McKamey, manager of the New Orleans office of A.I.M., the reason that his company did not record the bill of sale was due to the fact that the company was following the customary practice in the aircraft salvage business. The witness stated that a salvage buyer often sells the salvage to someone else, and it may change hands two or three times before a salvage buyer delivers it to the ultimate purchaser; the latter then receives the bill of sale with his name inserted, and files it with the Federal Aviation Agency. The reason, according to McKamey, is to avoid delay and eliminate the costs of registering the aircraft with every person who purchases the salvage.

“Our oustomary procedure in salvage cases is to deliver the blank bill of sale to the salvage buyer upon receipt of the salvage money. The salvage buyer then delivers it to his buyer, if any. When the last buyer re-cteives the bill of sale, he then files it with the Federal Aviation Agency. The bill of sale was never delivered by Aviation Insurance Managers, Inc. in this case because the salvage money has never been paid. ’ ’

We do not agree that there was no conveyance of the plane from A.I.M. to Collier, even though no bill of sale was given to the latter. A.I.M., according to the stipulated testimony, sold the craft to Collier. McKam-ey’s testimony reflects:

“Mr. Collier had previously purchased aircraft salvage from our company in behalf of Oak Grove Airport. It was my understanding that this was what he was doing in the present case.”
“* * * We sold the salvage to Mr. Collier' [our emphasis.] We looked to him for payment and we held the bill of sale for delivery to him upon payment of the salvage price. This is the only manner in which business has been done with Mr. Collier in the past.”

The stipulated testimony of both Collier and Kos-tich appears in the record, but we do not see that their testimony is particularly pertinent to the determination of this litigation. Collier testified that he bought the Cessna for Kostich, and he said that he advised McKam-ey of this fact, telling the latter that Kostich was to pay for the plane.

According to Kostidh’s testimony, he purchased the plane from Collier, received a bill of sale from the latter, who at the same time promised to obtain a bill of sale from either T.A.C. or A.I.M.

It has previously been pointed out that Congress has preempted the field as far as recordation and registration of aircraft is concerned, but we do not mean to say that Congress has preempted the entire field relating to conveyances of aircraft, for it has been held otherwise. In Aircraft Investment Corp. v. Pezzani & Reid Equipment Company, 205 F. Supp. 80 (1962), the United States District Court E. D. Michigan, S. D., said:

“Plaintiff suggests that Congress has preempted the entire field of conveyancing of interests in aircraft. This view is erroneous, notwithstanding In re Veterans’ Air Express Company, 76 F. Supp. 684 (D. N. J. 1948), which contains dicta on which plaintiff relies. Congress has said only that until an instrument purporting to convey an interest in an aircraft is recorded, in accordance with the Act, it is void as to third parties without notice. Upon federal recordation, it is valid without further recording. In providing for the recordation of various instruments pertaining to transactions affecting title or interest in aircraft, Congress has not impaired the existence and effectiveness of state laws creating and defining such instruments. Excepting the recording section of the Federal Aviation Adt, the validity of the chattel mortgage here in question must be measured by the appropriate state law.”

Appellee did not plead the application of the Texas statutes, and the law of this state applies.

Let us then look to our appropriate statutes. Ark. Stat. Ann. § 85-2-106 (Add. 1961), being a part of the Uniform Commercial Code, states:

‘‘* * * A ‘sale’ consists in the passing of title from the seller to the buyer for a price.”

This section then refers to § 85-2-401. Subsection (2) of the last section provides:

“Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a securitv interest by the bill of lading * * V’

We have already pointed out that McKamey’s testimony flatly states, “We sold the salvage to Mr. Collier.” The plane was physically delivered to Kostich (for Collier) though the document of title was to be delivered at a different time. Under subsection (2), just quoted, it appears that title passed to the buyer when the aircraft was delivered. Appellee, in holding on to the blank bill of sale, was actually endeavoring to reserve a security interest in the plane — but whatever interest was retained, even had there been a conditional sale— or a chattel mortgage — had to be recorded in the central office to become valid as against innocent purchasers. We are not concerned with the validity of the sale from A.I.M. to Collier (or Kostich) as it affects the rights between those parties; we are only concerned with their transaction as it affects the rights of appellant.

Under the evidence, there is no doubt but that appellant was a good faith purchaser; in fact, it is not otherwise argued. In State Securities Co. v. Aviation Enterprises, Inc., 355 F. 2d 225 (1966), the question of the recording of conveyances was discussed. That litigation was affirmed on the basis of two points, the second being that a chattel mortgage on an airplane was invalid, as to a purchase made in good faith from the mortgagor, where the mortgagee had not followed the provisions of Section 1403 (c). The court said:

“Further, under § 1403 (d), supra, Securities’ mortgage is invalid as to good faith purchasers, since it did not register its mortgage with the Federal Aviation Agency. And the failure of Owens to register its title does not benefit Securities, since Securities must stand on the strength of its own title and cannot recover on the weakness of Owens’s title.”

Reversed.

George Rose Smith, J., dissents.

George Rose Smith, Justice,

dissenting. The governing federal statute, quoted by the majority, reads in part:

“No conveyance or instrument the recording of which is provided for by subsection (a) of this section shall be valid . . . against any person other than the person by whom the conveyance or other instrument is made or given . . . until such conveyance or other instrument is filed for recordation in the office of the Administrator.”

An essential element in the Congressional scheme is that the conveyance or other instrument be in ivriting, so that it ccm be recorded. So interpreted, the statute achieves a worthwhile result, by requiring a registration of aircraft titles similar to that which applies to motor vehicles and the title to land. I think we ought to adhere to the basic requirement that the instrument of conveyance be in writing, else the registration system loses much of its practical value. I would reject the appellant’s assertion of title, on the ground that the legislative intent to give de facto validity to unrecorded conveyances was intended to apply only to written instruments.

       Ark. Stat. Ann. § 27-2504 (Supp. 1967) provides that a party who intends to raise an issue concerning the law of any jurisdiction or governmental unit outside this state shall give notice in his pleadings or other reasonable written notice.


author: George Rose Smith, Justice.

text:
    Mary Alice MOORE, Adm’x et al v. Michael ROBERTSON
    5-4566
    427 S. W. 2d 796
    Opinion delivered May 13, 1968

      Bernard Whetstone, for appellants.

      John M. Graves and Louis Tarlowski, for appellee.
   George Rose Smith, Justice.

This action arose from a collision between a car being driven by Ezell Walters and a trudk being driven by the appellee, Michael Robertson. Clayton Moore, a passenger in the Walters car, was killed, and Wallace Montgomery, another passenger, was injured. This action for wrongful death and for personal injuries was brought by two of the appellants, Moore’s widow and Montgomery. Moore’s daughter later intervened as a plaintiff. There were ultimately three defendants in the case: The appellee Robertson, who was driving the truck, Jim Ritchie, who owned the truck, and J. 0. Ashcraft, who was Robertson’s regular employer. The plaintiffs -alleged alternatively that at the time of the collision Robertson was acting as the agent of each of his codefendants.

Robertson failed to plead to the complaint within the time required by statute. The court entered a default judgment against Robertson, reserving the issue of damages for a later determination. Later on, however, the court set aside the default judgment and allowed Robertson to defend the suit. Upon a trial on the merits the court found in favor of all three defendants, finding specifically that none of the three defendants was negligent and that Robertson was not acting as agent for either Ritchie or Ashcraft at the time of the collision.

When the trial court announced his decision counsel for the plaintiffs made a rather unusual request, asking that the court, despite his decision in favor of the defendants, nevertheless find the amount of the plaintiffs’ damages, to provide for the possibility that on appeal the court’s action in setting aside the default judgment against Robertson might be reversed. With some reluctance the court acceded to that request and made offhand findings of damages totaling $24,620.60.

Counsel for the plaintiffs proved to be a good prophet, for on the first appeal we held that the court should not have set aside the default judgment. We remanded the case “for reinstatement of the default judgment.” Moore v. Robertson, 242 Ark. 413, 413 S. W. 2d 872 (1967). Upon remand the trial court heard a number of witnesses on the issue of damages and made awards to the plaintiffs totaling $9,200.00. The case now reaches this court for the second time, on appeal and cross appeal.

On direct appeal the plaintiffs insist that on remand the trial court had no choice except to make awards totaling $24,620.60 in accordance with its findings at the end of the first trial. That same argument was made on the first appeal and was rejected, our direction on remand being only that the default judgment be reinstated. That conclusion is now binding as the law of the case. Storthz v. Fullerton, 185 Ark. 634, 48 S. W. 2d 560 (1932). We may appropriately add that we are still of the same opinion as we were then. To allow the losing litigant to encumber the appeal with contingent or provisional issues would needlessly complicate the proof in the trial court, the responsibilities of counsel on appeal, and this court’s consideration of the Controlling question. Moreover, as this record demonstrates, the trial court’s treatment of semifictitious issues is apt to have all the disadvantages of a curbstone opinion, with hardly any countervailing benefit.

On cross appeal Robertson first contends that the trial court’s decision in favor of his codefendants, on the merits, should enure to his benefit as well. That contention is based upon a common-law rule that where one defendant answers and another defaults, a decision on the merits in favor of the v answering defendant — upon a defense common to both defendants — -operates as a release of the defaulting defendant. Burt v. Henderson, 152 Ark. 547, 238 S. W. 626 (1922).

The appellee’s contention is not now available to him, because it could and should have been made on the first appeal. The rule is that the decision on the first appeal is conclusive of any arguments that were or could have been made at that time. Storthz v. Fullerton, supra. The case at bar confirms the wisdom of the rule. If the appellee’s contention has merit — a point which we do not decide — its assertion on the first appeal would have done away with the necessity for a second trial and a second appeal, with their attendant expenditure of time and money. Such waste can be effectively prevented only by a strict adherence to the principle that points not urged upon the first appeal are not available later on.

The appellee also contends on cross appeal that the several awards made by the trial court are all excessive. For the most part we regard them as somewhat modest —so much so that a discussion of each award would be of no value as a precedent. We must, however, sustain the contention that the proof does not support the.allowance of $500 to Mabel Edwards as compensation for mental anguish occasioned by the death of her father. It was settled by Peugh v. Oliger, 233 Ark. 281, 345 S. W. 2d 610 (1961), that compensable mental anguish means something more than the normal grief occasioned by the loss of a loved one. Mrs. Edwards’s father was 74 years old at his death; she was a mature woman with grown children. There is no proof of any special ties of affection between Mrs. Edwards and her father. In fact, the sole proof pertinent to the issue of mental anguish consists of a single question and answer: “Q. You had love and affection for your father? A. Yes, I did.” Under the rule adopted in the Peugh case that meager proof is not sufficient to support any award for Mrs. E’dwards’s mental anguish. To that extent only the judgment must be reversed and the cause of action dismissed.

Affirmed on direct appeal; reversed in part on cross appeal.


text:
    James B. SPRADLIN v. Rex KLUMP et al
    5-4577
    427 S. W. 2d 542
    Opinion delivered May 13, 1968
    [Rehearing denied June 3, 1968.]

      Richard W. Hobbs, for appellant.

      Wooton, Land & Matthews, for appellees.
   George Rose Smith, Justice.

This is an action by the appellant against his former employers, the appel-lees, for damages for the loss of his right hand and forearm in an accident not covered by the workmen’s compensation law. The trial judge directed a verdict for the defendants at the close of the plaintiff’s proof. We have concluded that the appellees are right in their contention that Spradlin’s asserted cause of action is barred by the doctrine of assumption of risk.

The appellees, Klump and Raceland Farms, Inc., were engaged in raising and training thoroughbred race horses on a farm near Hot Springs. They also raised beef cattle and conducted general farming operations. At the time of his injury in 1965 Spradlin had been employed for several months as general manager of the farm, except that he had nothing to do with the race horses.

When Spradlin was hurt he was operating a hay baling machine by himself. The' testimony and photographs describe the hay-baling process. The operator rides a tractor which pulls the baler through a field where the hay has already been cut. The baler itself is run by power drawn from the tractor by means of a power-takeoff. In operation the baler picks up loose .hay and carries it by a conveyor belt to a pair of rollers, somewhat larger than, but essentially similar to, a clothes wringer. The hay, after passing through the rollers, is compressed into a cylindrical bale, tied with twine, and dropped to the ground.

When Spradlin was hurt he had been baling hay for an hour or more. He stopped the tractor and went back to try to adjust the baling machine, which was turning out poorly tied bales that were conical rather than cylindrical. Spradlin unwisely left both the tractor engine and the power-takeoff running, so that the baling machine’s rollers continued to turn while he tried to correct its performance. Unfortunately Spradlin put the fingers of his right hand too close to the rollers, which drew his lower arm into the machine and inflicted injuries that led to the amputation of the arm just below the elbow.

Assumption of risk is a harsh doctrine, not favored by the courts, but we are nevertheless unable to say conscientiously that it does not govern this case. Sprad-lin, a mature man of about 36, had had 20 years experience in farming and in the use of farm machinery. As manager of the farm he worked without supervision. His proof charged his employers with negligence in failing to instruct him adequately in the operation of this particular kind of baling machine and in failing to equip the machine with safety shields. Even so, the danger presented by the moving rollers was completely open and obvious. Spradlin readily admitted on cross examination that he fully appreciated the peril involved in letting his hand get too dose to the moving parts of the haler. In cases which we cannot distinguish in principle from this one we have held upon similar facts that the injured employee must be charged with assumption of risk as a matter of law. Standard Oil Co. of Louisiana v. Gray, 175 Ark. 702, 300 S. W. 405 (1927); Jones v. Mayberry, 143 Ark. 390, 220 S. W. 479 (1920); Fullerton v. Henry Wrape Co., 105 Ark. 434, 151 S. W. 1005 (1912). We are forced to conclude that the trial court did not err in directing a verdict for the appellees.

Affirmed.


author: Paul Ward, Justice. John A. Fogleman, Justice,

text:
    Charles ESTEP and Paul CRYAR v. STATE of Arkansas
    5332
    427 S. W. 2d 535
    Opinion delivered May 13, 1968

      Carl Stewart and Jeff Duty, for appellants.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Paul Ward, Justice.

This is an appeal by Charles Estep and Paul Cryar from a conviction for burglary and grand larceny.

When appellants were arraigned in circuit court on August 18, 1967 they entered pleas of not guilty, and the court appointed Attorney Carl Stewart to defend them. The case was then continued and set for trial on September 5, 1965.

On the last mentioned date the following occurred: (a) Lawrence Hamilton who was also charged along with appellants, and who was sixteen years old, pleaded guilty and was sent to the Arkansas Industrial School. He is not involved here, (b) Appellants asked that they be furnished a copy of a confession of guilt signed by Estep on August 18, 1967, and that the hearing be set for a later date. The trial court granted both requests, and set the hearing for September 28, 1967.

During the trial the State offered to introduce in evidence the previously mentioned confession of Estep, which appears in the record as the State’s Exhibit No. 1. At this point appellants objected to the introduction of the exhibit, but were overruled. Then appellants noted their exceptions to the ruling of the court, and further stated: “And we ask, and I make this motion out of the presence of the jury, that it be ascertained by investigation that the testimony of these witnesses, whether or not this was a free and voluntary statement”. This motion was overruled by the court, and appellants again saved their exceptions. In overruling appellants’ exceptions the court said: “Its a question of fact. The jury will consider all of the facts. Proceed.” The exhibit was introduced in evidence, and the trial was continued. The trial resulted in a jury verdict of guilty on both counts, and sentences were fixed at not more than five years — to run concurrently.

For a reversal appellants urge four separate points. We will, however, discuss at any length only one point.

We have concluded the trial court erred in failing to determine, out of the presence of the jury, the vol-untariness of Estep’s confession. In reaching this con-elusion we deem it unnecessary to discuss the decision of the U. S. Supreme Court cited by both parties, because we think Ark. Stat. Ann. § 43-2105 (Supp. 1967) is controlling in this case. It reads:

“Issues of fact shall be tried by a jury, provided that the determination of fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; that the trial court shall hear the evidence concerning the admissibility and the volun-tariness of the confession out of the presence of the jury and it shall be the court’s duty before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily.”

The above section was cited and approved in Mullins v. State, 240 Ark. 608, 401 S. W. 2d 9.

In view of the above, the case must be reversed and remanded for a new trial.

We have examined carefully the other alleged errors and find no merit in any of them.

Reversed and remanded.

FoglemaN, J., concurs.

John A. Fogleman, Justice,

concurring. I concur because it appears that the trial judge never made a ruling that the confession was voluntary as required by Jackson v. Denno, 378 U. S. 368, 84 8. Ct. 1774, 12 L. Ed. 2d 908 (1964), and Ark. Stat. Ann. § 43-2105 (Supp. 1967). On the other hand, he seems to have left the determination of the question of voluntariness entirely to the jury. I agree that this was reversible error.

If he had held the confession voluntary and not left the determination entirely to the jury, I feel that his action would not have been prejudicial. Where a confession is held voluntary and there is no showing that a hearing thereon in the presence of the jury was inadequate or had any other unfair consequences, there is net necessarily any prejudice to the defendant. See Pinto v. Pierce, 389 U. S. 31, 88 S. Ct. 192 (1967). 19 L. Ed. 2d 31 (1967). While objection was made and a hearing outside the presence of the jury was requested here, the defendant did not avail himself of the opportunity to testify or to offer any testimony on this question when the trial judge recessed the hearing, excused the jury and gave defendant that opportunity. Had the trial judge then ruled the confession voluntary, I cannot see how there would have been any prejudice to the defendant.


author: Lyle Brown, Justice.

text:
    GUARANTY FINANCIAL CORP. v. James HARDEN et ux
    5-4546
    427 S. W. 2d 548
    Opinion delivered May 13, 1968

      Griffin Smith, for appellant.

      Brockman & Brockman, for appellees.
   Lyle Brown, Justice.

Our first appeal in this case, Guaranty Financial Corp. v. Harden, 242 Ark. 779, 416 S. W. 2d 287 (1967), was limited to that portion, of the trial court’s decree that held void for usury the note and mortgage executed at the time of the construction contract for the building of the shell house. When the mandate of this court was issued, appellant Guaranty Financial Corporation presented a precedent for foreclosure decree. It was based upon the premise that it was entitled to judgment for the amount of the contract less $1,000 that the chancellor had found it would take to correct the deficiencies. Appellees protested that they were entitled to a rescission of the construction contract unless. appellant remedied the defects in the house. Appellant at first objected to the trial court’s requirement that it remedy the defects, hut subsequently acknowledged by letter that rather than appeal it would undertake to remedy them. Upon the hearing for final decree of foreclosure, appellant introduced proof that the defects had been remedied. Appellees, after inspecting the property, testified that the defects were not remedied— particularly those having to do with cracks in the sheet-rock and the front picture window. Due to the conflicting testimony, the chancellor made a personal inspection of the premises, accompanied by counsel for the respective parties, and upon return stated that the property was not as good , as appellant had said it was and not as bad as appellees Contended, but that there were serious cracks in the sheetrock and a defect in the picture window.

From a decree refusing a foreclosure and giving appellant thirty days in which to remove the house, appellant appeals, contending that since the portion of the original decree not appealed from had become final, the trial court was in error in refusing to enforce his decree, and in the alternative that the chancellor’s findings relative to the defects were contrary to a preponderance of the evidence.

The original opinion of the trial court in this case first set forth, the facts; held the note and mortgage void for usury but upheld the validity of the construction contract; then it took up the issue as to the amount due on the contract, finding that the total deficiencies amounted to $1,000; determined that interest on the contract should be at the legal rate of 6 per cent, and concluded :

“The court finds that the plaintiff and/or its assignor, Joe-Lee, shall have thirty days in which to remedy the defects to the satisfaction of the defendants ; that in the event such defects are not remedied in said time then the contract shall be void and each party shall be released therefrom; provided, in lieu of remedying said defects plaintiff or its assignor shall have the right to remove said house from said lot within said period.”

The decree in the first case, after setting forth the formalities as to parties, appearances, and process, made findings of fact and provided as follows:

“IT' IS, THEREFORE, by the court CONSIDERED, ORDERED, ADJUDGED and DECREED that the opinion of the court dated November 22, 1966, is to be incorporated by reference in this decree in its entirety.
“IT IS FURTHER ORDERED, ADJUDGED and DECREED that the note and mortgage signed by the defendants, James Harden and Erma Lee Harden, and given to the cross-defendant, Joe-Lee Homes, Inc., who subsequently assigned it to the plaintiff, Guaranty Financial Corporation, be, and they are hereby declared to be usurious and therefore void.
“IT IS FURTHER ORDERED, ADJUDGED and DECREED that the contract executed between the defendants, James Harden and Erma Lee Harden, and Joe-Lee Homes, Inc., be, and the same is hereby valid and enforceable.
“IT IS FURTHER ORDERED, ADJUDGED and DECREED that the sum of $1,000.00 shall be allowed to correct all deficiencies for which the cross-defendant, Joe-Lee Homes, Inc., is responsible under the contract.
“IT IS FURTHER by the court ORDERED, ADJUDGED and DECREED that the plaintiff, Guaranty Financial Corporation and/or its assignor, Joe-Lee Homes, Inc., be, and they are hereby allowed thirty days in which to remedy the defects to the satisfaction of the defendants, James Harden and Erma Lee Harden; that in the event such defects are not remedied in said time then the contract shall be void and each party shall be released therefrom; provided, in lieu of remedying said defects the plaintiff or its assignor shall have the right to remove said house from said lot within said period.
“IT IS FURTHER ORDERED, ADJUDGED and DECREED that the plaintiff be, and it is hereby ordered and directed to pay all costs of this action. ’ ’

The portion of the decree not appealed from in the first appeal, Guaranty Financial Corp. v. Harden, supra, leaves much to be accomplished in the way of draftsmanship, but when it is considered together with the opinion of the trial court we can not say that the trial court erred in refusing to enter a foreclosure decree until appellant had complied with its construction contract by remedying the defects. The only practical effect of our former opinion on the first decree entered by the trial court was merely to reinstate the mortgage lien executed by the parties. It did not in any way affect those portions of the decree from which no appeal was taken.

We have consistently held that where the testimony of the parties is sharply contradictory and the vital issue is one of credibility, the chancellor’s finding of facts is entitled to great weight on appeal. Dearien v. Lancaster, 221 Ark. 98, 252 S. W. 2d 72 (1952). From the contradictory evidence in the record here, we are nnable to say that the chancellor’s finding is contrary to the weight of the evidence.

Affirmed.

FoglemaN, J., disqualified and not participating.

George Rose Smith, J., dissents.


text:
    Marjorie Ann STONE v. Dana Allan STONE
    5-4576
    427 S. W. 2d 538
    Opinion delivered May 13, 1968

      Fred A. Newth, Jr., for appellant.

      Bailey, Trimble & Holt, for appellee.
   Lyle Brown, Justice.

This appeal concerns custody rights to the parties’ four children. Appellant Marjorie Ann Stone was unsuccessful in her petition to have the custody reinvested in her and she appeals.

Marjorie obtained a divorce and custody of the children in 1963. Apparently because of the tender ages of the children, Dana Stone, father and appellee here, made no contest. One year later Marjorie remarried, on which occasion she delivered the children to Dana. The father petitioned the court for official custody and, with Marjorie in agreement, that petition was granted early in 1964. In 1965 Marjorie petitioned for custody, alleging changed conditions. From the denial of that petition there was no appeal. In 1966 Marjorie filed another petition for custody. At the hearing in June 1966 she offered proof to support five contentions:

(1) She had regained her health; (2) she had a nice three-bedroom home; (3) the income of her second husband had increased to $800 a month; (4) Dana mistreated the children physically; and ,(;5) Dana’s personal relations with a baby sitter were immoral.

An extended hearing was conducted. The chancellor decreed that custody remain with the father. From that order there was no appeal.

Comes yet another petition by the mother for change in custody. Her proof at this 1967 hearing cpv-ered precisely the five points we have enumerated with respect to the June 1966 hearing. Testimony on one additional matter was interjected and that pertained to her detention of the children beyond the permissible visitation period in 1966. She contended that her holding the children over was because of an agreement with the father. Based on the history of the bitterly contested proceedings, the court found that no such agreement existed. Again the court found no change in conditions. That ruling is the basis of this appeal.

The order of June 1966, wherein the mother’s request for custody was denied, was a final, appealable order. Marjorie elected not to appeal so the facts there litigated were put to rest. Before she could prevail on her 1967 petition it was incumbent on her to produce evidence of changed conditions brought about subsequent to the 1966 decree. Jackson v. Jackson, 151 Ark. 9, 235 S. W. 47 (1921); Wilkins v. Davis, 244 Ark. 304, 424 S. W. 2d 530 (1968). To the recited general rule- there are some exceptions but it is not argued that any such exception is here applicable.

Initially the trial court sustained an objection to testimony relating to incidents occurring prior to the 1966 hearing. However, at appellant’s request, she was permitted to proffer such testimony for the record. Averring to Swindle v. Swindle 242 Ark. 790, 415 S. W. 2d 564 (1967), appellant asserted that “child custody was a fluid thing” and that any matters, irrespective of time element,^which concerned the welfare of a child would be here considered if reproduced for us in question and answer form. What we did hold in Swindle was to the effect that if testimony appropriate for our consideration is proffered, it should be by examination of the proffered witness, rather than by a summary statement of what the testimony of the witness would be if present and testifying. Since appellant’s proffered testimony at the 1967 hearing was actually in support of contentions litigated in the 1966 hearing, we do not consider the evidence.. Our holding on this point was also approved in Swindle.

Affirmed.


text:
    James A. HINSON v. CULBERSON-STOWERS CHEVROLET, INC.
    5-4562
    427 S. W. 2d 539
    Opinion delivered May 13, 1968

      Ward & Mooney, for appellant.

      Barber, Henry, Thurman, McCaskill & Amsler, for appellee.
   John A. Fogleman, Justice.

Appellant seeks reversal of an order of the trial court quashing the process and dismissing the complaint in his action against ap-pellee for malicious prosecution. The transcript shows only that summons was issued and served upon appel-lee. Neither the form nor manner of service is disclosed'. There appears in the transcript a receipt for’ certified mail which was addressed to Frank Culberson, Culber-son-Stowers, Pampa, Texas. The receipt was signed for Frank Culberson by one Ulm Eads, purportedly as the agent of the addressee. Appellant asserts that service was proper under the provisions of Ark. Stat. Ann. § 27-339.1 (Supp. 1967). Appellee does not question that service was had in the manner and form required by that section, but contends that the section is not applicable and that the court’s action in granting its motion to quash was proper. Consequently, we will treat this case as if the record reflected service pursuant to this section and will determine this appeal on the question of applicability of the statute.

Appellant relies solely and entirely on the application of the above named statute. The pertinent portion thereof reads:

“(1) Any cause of action arising out of acts done in this State * * * by an agent or servant in this State of a foreign corporation may be sued upon in this State * * * by process served upon or mailed to the * * * corporation outside the State.”

Appellant’s complaint alleged that appellee caused a warrant of arrest issued in Gray County, Texas, to be sent by United States mail to the Sheriff of Craighead County, Arkansas, along with instructions from the defendant, by way of both telephone and mail, to place appellant under arrest and imprison him unless and until he paid over an indebtedness asserted by appellee to be due it.

Appellant argues that appellee, a foreign corporation without an agent for service of process in the State of Arkansas, was subject to service under this statute, and contends that the corporation’s use of the mails and the services of the telephone company in furthering its alleged malicious prosecution of appellant made the United States postal service and the telephone company his agents or servants in Arkansas and that the acts of these representatives performed in this state gave rise to appellant’s cause of action. Appellant also contends that the Sheriff of Craighead County was the agent of appellee in this matter. The complaint does not state whether the warrant was placed in the mails by appel-lee or by an officer of Gray County, Texas, and appellant admitted in oral argument that the identity of the person placing the warrant in the mails is undisclosed by the record.

A telephone company is a common carrier of communications. As such it must supply all who are alike situated and cannot discriminate in favor of or against anyone. Montgomery v. Southwest Arkansas Telephone Co., 110 Ark. 480, 161 S. W. 1060. Thus, its relationship to a user is hardly compatible with the relationship of principal and agent. In Campbell v. Bastian, 236 Ark. 205, 365 S. W. 2d 249, we cited with approval authorities on the relationship as follows:

‘‘* * * In the American Law Institute’s Restatement of the Law of Agency, § 1 Comment A, this appears:
‘The relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to liis control, and that the other consents so to act. The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on the principal’s behalf and subject to his control.’

In 2 Am. Jur. p. 13, ‘Agency’ § 2, this appears:

‘An agency may be defined as a contract, either express or implied, upon a consideration, or a gratuitous undertaking, by which one of the parties confides to the other the management of some business to be transacted in his name or on his account, and by which that other assumes to do the business and render an account of it.’
In Black’s Law Dictionary an agent is defined as: ‘A person authorized by another to act for him, one entrusted with another’s business.’ ”

We find that the essential elements of authorization and control are absent. We have also approved the definition of servant in the Restatement of Agency as an employee whose physical conduct is subject to the master’s right of control. Southern National Insurance Co. v. Williams, 224 Ark. 938, 277 S. W. 2d 487. The relationship of the telephone company is more nearly that of independent contractor. This relationship is created when there is no intent on the part of an employer to retain control or direction of the manner or methods by which the party contracted with shall perform the work and there is no direction relating to the physical conduct of the contractor or his employees in the execution of the work. Massey v. Poteau Trucking Co., 221 Ark. 589, 254 S. W. 2d 959.

By the same tests, the United States mails could not be either the agent or the servant of appellee.

There is nothing to indicate that the warrant of arrest was not regular on its face, and both parties agreed on oral argument that it was to be so considered. None of the allegations of the complaint suggests that the sheriff followed the instructions of appellee or did anything except to perform his duty in the service of the warrant. Ark. Stat. Ann. § 12-1110 (Bepl. 1956) makes it the duty of the sheriff to execute all lawful process directed to him by legal authority. In so doing, he is the agent of the law, not of any private party. Griffin v. Thompson, 2 Howard (U. S.) 244, 11 L. Ed. 253 (1844); M’Ghee v. Ellis, 4 Littell (Ky.) 244, 14 Am. Dec. 124 (1823); Horton v. Maffitt, 14 Minn. 289, 100 Am. Dec. 222 (1869). In the absence of a showing to the contrary, there is a presumption that the sheriff performed his duty lawfully, correctly and in good faith. McCamey v. Wright, 96 Ark. 477, 132 S. W. 223; Matthews v. Bailey, 198 Ark. 703, 130 S. W. 2d 1006; Beaumont v. Faubus, 239 Ark. 801, 394 S. W. 2d 478.

Since neither the telephone company, the United States mails nor the sheriff can be said to be the agent or servant of appellee in the sense of § 27-339.1, there is no error in the court’s order quashing service thereunder.

The judgment is affirmed.