text:
    Warren v. Reed.
    5-2038A
    331 S. W. 2d 847
    Opinion delivered February 15, 1960.

      Richard W. Robbs, for appellant. .

      R. Julian Glover, Wootton, Land & Matthews, Earl J. Lane and Wood, Chesnutt S Smith, for appellee.
   Jim Johnson, Associate Justice.

This is a taxpayer’s suit. The action was brought by appellant, Herman C. (Dusty) Warren, County Judge of Garland County, in his capacity as a taxpayer and resident of Garland County, against appellee, James M. Reed, a member of the Board of Governors of the Ouachita General Hospital. Appellant alleged that appellee had entered into a laundry contract with the Board of Governors while appellee was a member of the Board and asked the court to declare such contract null and void and against public policy and further asked the court to require appellee to make a strict accounting of all profits he had made under such contract.

After hearing this case in conjunction with another ease involving this appellant and this appellee, et al, the Chancellor found for appellee holding that the complaint should be dismissed for want of equity. From such holding comes this appeal.

For reversal appellant contends that the trial court erred in dismissing the complaint of the plaintiff for want of equity in that under the law of the State of Arkansas, a public officer, as a member of a board or commission, is forbidden from entering into a contract with such board or commission whereby the public officer receives any moneys or profits.

And, that the trial court erred in refusing to declare the contract'in question null and void and against public policy and in refusing to prohibit and enjoin appellee, James M. Eeed, from receiving further moneys under and by virtue of the contract in question.

The facts are briefly as follows: Appellee, James M. Eeed, was the operator of the Craighead Laundry in Hot Springs. The building which housed the laundry was owned by Mr. Hill A. Wheatley, who was chairman of the Board of Governors of the Ouachita General Hospital. Appellee was also a member of the Board of Governors of the hospital and .served as Treasurer of the Board. Bids for the laundry of the hospital were called for and Eeed bid upon the laundry contract while a member of the Board, resulting in'the Board awarding an exclusive contract to Mr. Eeed to handle all of the laundry for the hospital.

The record reflects that a contract was advertised for, that several bids were received, and that the bid of appellee was the lowest -bid. There was no evidence introduced on the part of - appellant that appellee had any advance information that any other bidder did not have or could not have had upon reasonable inspection. Mr. Albert Guice of the Howlett Linen Service, a competitor of appellee, submitted one of the rejected bids. Mr. Guice testified as follows relative to Seed’s bid:

“Q. Mr. Guice, I hand you herewith a bid, about which it has been testified that the Board of Governors accepted, and I’ll ask you to read the bid and the price contained therein for services rendered to the Ouachita General Hospital. Are the prices shown on that bid for laundry service to the Ouachita General Hospital reasonable or not?'
“A. They’re below average, yes.
“Q. Would you be able to take a contract for the Ouachita General Hospital laundry under the same prices as shown there?
“A. I would not.”

Appellee testified that the laundry contract provided him with a “filler” by keeping his employees at work for certain hours when otherwise they would be laid off, thereby keeping them employed full time instead of part time and thus more happily employed. At the conclusion of the testimony the chancellor found, and we think properly so, that there was no fraud on the part of appellee in his dealings in connection with the laundry contract, and further that he had no special knowledge that was not at the command of the other bidders. With these points thus determined, the balance of the case evolves into purely a question of law as to whether or not a public officer, such as appellee in this case, could enter into a contract with the Board of Governors of the Ouachita General Hospital while acting in his capacity as a public officer and treasurer of the board.

In 43 Am. Jur., Section 266, at page 81, we find the following:

“A public officer owes an undivided duty to the public whom he serves, and is not permitted to place himself in a position which will subject him to conflicting duties or expose him to the temptation of acting in any manner other than in the best interest of the public. One of the most familiar applications of this doctrine is the rule which prevents an officer from having an adverse interest in any contract which he executes on behalf of the public.”

In 43 Am. Jur., Section 294, at. page 103, the following rule is set forth:

“A contract made by a public officer is against public policy and unenforceable if it interferes with the unbiased discharge of his duty to the public in the exercise of his office, or if it places him in a position inconsistent with his duty as trustee for the public or even if it has a tendency to induce him to violate such duty. Such contracts are invalid, although there may have been no actual loss or detriment to the public or fraudulent intent in entering into the contract, since the rule invalidating the contract is based on public policy.”

In 43 Am. Jur., at page 105 :

“A contract entered into by a public officer in his individual capacity, the effect of which is to create a personal interest which may conflict with the officer’s public duty, is contrary to public policy.”

In 43 Am. Jur., Section 299, page 206:

“A contract entered into by a board with one of its own members is void, or at least voidable, and this, even in the absence of a statutory prohibition. The reason is that in such cases, the member’s public duty and his private interests are directly antagonistic. It matters not if he did, in fact, make his private interests subservient to his public duties.”

Our research reveals that Arkansas has always followed the rules hereinbefore quoted from Am. Jur. and in the case of McLain v. Miller County, 180 Ark. 828, 23 S. W. 2d 264, this Court cited and quoted the following rule:

“As the efficiency of the public service is a matter of vital concern to the public, it is not surprising that agreements tending to injure such service should be regarded as being contrary to public policy. It is not necessary that actual fraud should be shown, for a contract which tends to the injury of the public service is void, although the parties entered into it honestly, and proceeded under it in good faith. The courts do not inquire into the motives of the parties in the particular case to ascertain whether they were corrupt or not but stop when it is ascertained that, the contract is one which is opposed to public policy. Nor is it necessary to show that any evil was, in fact, done by or through the contract. The purpose of the rule is to prevent persons, from assuming a position where selfish motives may impel them to sacrifice the public good to private benefit. ’ ’

This Court went on in the foregoing cited case to state further:

“It is, of course, clear that a contract which induces a public officer to violate his duties to the public is against public policy. It is not necessary that there should be an express agreement to that effect. The acceptance of private employment, which conflicts with his public duties may be sufficient. An officer’s duty is to give to the public service the full benefit of a disinterested judgment, and the utmost fidelity. Any agreement or understanding by which his judgment or duty conflicts with his private interest is corrupting in its tendency. The law will not permit public servants to place themselves in a situation where they may be tempted to do wrong, and this it accomplishes by holding all such employment, whether made directly or indirectly, utterly void. ’ ’

This Court, in the cited case, went on to state that the rule which prevented public officers from being interested in public contracts is embodied in the statutes of some states, but that this rule is not dependent on statute and according to the great weight of authority a contract with a member of a board of public body or in which a member thereof is interested, is unenforceable, even though there is no statute directly prohibiting such a contract. A public officer cannot lawfully make a contract either with himself, or with himself as agent for others.

In the case of Smith v. Dandridge, 98 Ark. 38, 135 S. W. 800, this Court again laid down the rule that it was unlawful for a director of a school district to enter into a contract with the school district where he had a personal and individual interest in the contract and that public policy of the state would forbid the director from making such a contract and that snch a contract would not be enforceable but that such a contract was not absolutely void but it would not be a binding agreement and could be voided. This Court, in that particular case, allowed payment to the director on a quantum meruit basis because of the fact the school district had received and retained the benefits of his services but held that payment would not he allowed on the basis of the contract because the contract was unenforceable and not binding.

Following the rules set out in the McLain and Smith cases, supra, we find that the contract existing between appellee and Ouachita General Hospital must be can-celled and appellee restrained from further contracting with the Board so long as he remains a member thereof. We further find that in the absence of a specific prohibition in the Statutes of Arkansas providing for the purchase, maintenance and operation of county hospitals, against the members of a board of governors from contracting with the board, and since the hospital did receive and retain the benefits of the services performed by appellee, he must be allowed payment for same on a quantum meruit basis. In determining the quantum meruit we find from the testimony of the appellee’s competitor, Mr. Albert Guice, that appellee received no more than he deserved for his services performed; in fact, he received less than the witness would have charged for the performance of the same service and less than any of the bidders on the contracts would have charged. Therefore, the decree of the Chancellor is reversed and the cause is remanded with directions to enter orders consistent with this opinion.

Reversed.

       Act No. 481 of the Acts of Arkansas, 1949, and as amended by Act No. 83 of the Acts of Arkansas, 1953.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Jones v. Crouch.
    5-2068
    332 S. W. 2d 238
    Opinion delivered February 22, 1960.

      Lyman L. Mikel, for appellant.
    Gean, Gean & Gean, for appellee.
   Carleton Harris, Chief Justice.

Suit was instituted in the Chancery Court, Fort Smith District, Sebastian County, Arkansas, to enjoin the collection of taxes on the personal property of appellees. Appellees, in April, 1958, assessed their personal property at an assessed value of $15,000. The assessor of Sebastian County made his own assessment in the amount of $49,575. After receiving notice of the raise in assessment, appellees filed a petition with, the Board of Equalization to reduce the assessment. According to appellee, Carl Corley, one of the partners of Crouch Equipment Company, he called the Board twice, hut was advised that personal property petitions were not being heard at that time, and that he would be subsequently notified. Corley further testified that he again called on December 10th, and talked with Jess Hall, a member of the Equalization Board, who advised Corley that the Board was then in the process of making up its final report. Appellee stated that Hall asked him if he could come down on that day for a hearing, and he (Corley) advised that he was due to catch a train that afternoon for an appointment out of the city, and also that he would need a little time to get his information and witnesses together. Hall then told him to hold the phone until he could talk with other members of the Board. Upon resuming his conversation with Corley, Hall stated that hearings had been completed, and he would “have to wait until next year to get a hearing.” This testimony was not too far different from that of Mr. Hall, who testified that Corley told him he wanted the hearing that day. The witness testified that R. B. Hudson, chairman of the Board, stated that the petition could not be heard that day, but could be heard the next day. According to Hall, Corley replied that he was leaving town at noon, and could not be present. After further talking with Hudson, Hall told Corley that if he could not be present the next day, the matter would have to wait until next year. On January 6, 1959, appellees instituted suit in the Chancery Court, alleging that the assessment was illegal and excessive ; that they were never given a hearing by the Equalization Board, and accordingly had been deprived of their constitutional rights, and asked that the collector be restrained and enjoined from collecting or attempting to collect any tax based on said appraisement. On hearing, the court found “that all the material allegations of Plaintiffs’ Complaint and Amendment to Complaint are true”; that the assessment for the year 1958 was illegal, unconstitutional and void, and enjoined the county clerk, assessor, and collector, from collecting or attempting to collect any taxes on the personal property belonging to appellees on any valuation in excess of the valuation of $15,000 for the year 1958. From such decree comes this appeal.

Before specifically discussing the issues in this case, we think it well to set out the law relating to assessments, which has been, to some degree, changed by recent legislative sessions. The statute in effect at the time of this litigation (§ 84-416, Ark. Stats. (1947) Anno.) provided that the assessor should appraise and assess all personal property between-the first Monday in January and third Monday in August. § 84-437 (Ark. Stats. (1947) Anno.) provides that the assessor shall

í í # # * in each instance where he raises the valuation of any property which has been listed with him as by law required, shall deliver to the property owner or his agent a duplicate copy of such adjusted assessment list, or he shall notify such property owner or his agent by first class mail, which notice shall state separately the total valuation of real and personal property as listed by the property owner and as fixed by the assessor, and shall advise that such owner may, by petition or letter, apply to the equalization board for the adjustment of the assessment as fixed by the Assessor, provided all applications shall be made to said board on or before the third Monday in August. ’ ’

Section 84-706 provides that the regular session of the Board shall be held beginning the third Monday in August and up to the third Monday in September. The General Assembly of 1951, in extraordinary session, through Act 9 (§ 84-717 through § 84-719,1957 Supplement), provided that the Equalization Board of any county, on petition of the county judge-or on its own motion, could, at any time after adjournment of its regular meeting, and before the first Monday in October next following such adjournment, convene in special session

“* * * for the purpose (1) of completing its work of equalization of property assessments or (2) for the purpose of reviewing or extending its work of equalization of property assessments; and, for that purpose, said Board shall be vested and charged with all the powers and duties with which such Board is vested and charged when meeting in regular session and, in addition, said Board shall be empowered to employ qualified appraisers, abstractors or other persons needed, to appraise properties which the board may need in the discharge of its duties.
The petition to said Equalization Board shall specify the date on which the Board shall convene and such Board may thereafter exercise its functions but not later than the third Monday in November next following.”

Section 84-708 (1957 Supplement) provides that any property owner may petition the Equalization Board for an adjustment, and further provides that if he feels aggrieved at the action of the Equalization Board, he may appeal to the county court “provided, no appeal to the county court shall be taken except by those who have first exhausted their remedy before the Equalization Board, excepting however, all cases where the petitioner shall have had - no opportunity to appear before said Board.” The section further provides that all appeals from regular sessions of the Board shall be filed before the second Monday in October, and shall be heard by the county court before the first Monday in November. Section 84-718 (1957 Supplement), relating to appeals from special sessions, provides:

“Appeals from the action of the Board when in special session shall be to the County Court in the manner as now provided by law, except that any such appeal shall be filed within ten (10) days from date of notice of action by said Board, and shall be heard and order made by the County Court not later than forty-five (45) days prior to the date on which the tax books for the year are required to be delivered to the County Collector. ’ ’

We disagree with the Court’s finding that the assessment made by the assessor was illegal, unconstitutional, and void. While this assessment was based upon an appraisal submitted by E. T. Wilkins and Associates, the assessor had full authority to assess the property at whatever figure, based on his information or investigation, he deemed to bé right and proper. In fact, that is the very duty of the assessor. Here, an assessment was made, and appellees notified, following which they filed their petition with the county Equalization Board. According to the evidence, they were heard as far as a reduction in the real estate assessment was concerned, but were told that hearings, relative to a reduction of personal property assessments, were not being conducted at that time. According to Corley, he contacted the Board twice before the December 10th date, but no hearing was set. On December 10th, he again called, and the conversation took place as heretofore related.

Let it first be pointed out that the Board actually had no authority on that date to reduce — or for that matter, raise — anybody’s assessment. The statute very definitely provides that the Board cannot exercise such a function after the third Monday in November. Accordingly, any equalization action taken at that time would have been without force and effect if it had been questioned. Appellees seem to be of the opinion, that having filed their petition with the Board, it forthwith became mandatory that a hearing be granted. Of course, Corley admitted that he was told he could appear before the Board that day (December 10th), but we hardly think that would have been sufficient time for appellees to get ready to present their case. However, we do not agree that a hearing was mandatory. A large enough number of petitions could be filed that it would be a physical impossibility to hear all in the length of time allotted. The statute itself makes clear that a hearing is not mandatory, for it provides that an applicant must exhaust his remedy before the Equalization Board except in those cases “where the petitioner shall have had no opportunity to appear before said Board.” Of course, it is contemplated that a petitioner will have a hearing before the Board; otherwise, there would have been no occasion to set up such a Board, but the failure of the Board to hold such a hearing certainly does not invalidate the assessment already made, nor does the failure to obtain a hearing result in taking the petitioner’s property without due process of law, for a remedy is still provided. That remedy is an appeal to the county court, and such appeal must be taken within ten days from the date petitioner receives notice from the Board. Appellees argue that they received no notice of any action by the Board; further, that no action whatsoever was taken relative to the petition, and there was accordingly nothing to appeal from. It is true that no written notice was sent, but Mr. Corley certainly was notified that the petition was not going to be heard. Whether the statement that Corley would “have to wait until next year to get a hearing” be construed as turning down the petition for reduction, or be construed to the effect that the Board was taking no action at all, is of no concern. The fact remains that appellees knew they were not obtaining any relief. With this certain knowledge, it only remained for them to appeal to the county court. In other words, if it be considered that appellees’ petition had been denied by the Equalization Board, then their remedy had been exhausted before such Board. On the other hand, if they had no opportunity to appear before the Board, the right of appeal to the county court still remained. The Board’s action — or inaction — did not preclude appellees from pursuing their statutory remedy for a hearing. Actually, though the Board had no authority in December to grant any relief, if an appeal had been taken, the county court could, had it so desired, have reduced the assessment. In fact, testimony reflects that the county court heard two cases where petitioners had not been previously heard by the Equalization Board.

"We certainly would readily say that, if at all possible, the Board should hear a taxpayers’ petition. We are likewise of the opinion that in the interest of efficiency, and to avoid misunderstanding, a better practice would call for Boards to send written notices to all petitioners advising definite hearing dates, or informing that his or her petition could not be heard. We agree that appellees were diligent in trying to obtain a hearing before the Board. Having said this, the fact remains, however, that the statutory remedy for an aggrieved property owner was not followed. To affirm this decree would simply be to disregard the plain statutory requirements.

In summary, we find that the assessment made by the assessor of appellees’ personal property for the year 1958 was not illegal, or unconstitutional; there is no absolute right to a hearing before the Equalization Board, and the failure to obtain such hearing did not amount to depriving appellees of their property without due process of law. Finally, the court was in error in holding that appellees had possessed no adequate remedy at law, for the right of appeal accrued on December 10th. It follows that the injunction was erroneously granted.

Reversed.

       Corley also sought a reduction in his real estate assessment, which was heard in September.

       Act 246 of the General Assembly of 1959 changed this statute to read “between the first Monday in January and the first day of August.”

       ***Act 246 or 1959 changed the time to the first day of August through the first day of September.

       The clerk is required to deliver these books to the collector by the third Monday in February. While not involved in this appeal in any way, § 84-721 authorizes the Equalization Board to meet at any time for the purpose of planning its work of equalization, and empowers the Board to employ qualified appraisers, abstractors, or other persons needed for appraisal work. This section relates only to the planning of the work.

       E. T. Wilkins and Associates, in pursuance of Act 351 of 1949 as amended in 1957, were employed by the Fort Smith District of Sebastian County, Arkansas, to appraise the property of appellees and other taxpayers in the district and county.


author: J. Seaborn Holt, Associate Justice. Sam Robinson, Associate Justice, Carleton Harris, Chief Justice,

text:
    Payne v. State.
    4953
    332 S. W. 2d 233
    Opinion delivered February 22, 1960.

      Wiley A. Branton, for appellant.

      Bruce Bennett, Attorney General, By: Thorp Thomas, Asst. Attorney General, for appellee.
   J. Seaborn Holt, Associate Justice.

On a charge of murder in the first degree, appellant, Frank Andrew Payne, was, on January 11, 1956, tried, found guilty as charged and his punishment fixed by the jury at death by electrocution; We affirmed, Payne v. State, 226 Ark. 910, 295 S. W. 2d 312. On appeal to the Supreme Court of the United States, the judgment was reversed for error in introducing in evidence a coerced confession of appellant, Payne v. Arkansas, 356 U. S. 560, 2 L. Ed. (2d) 975, 78 S. Ct. 844. Thereafter, in April 1959, appellant was again tried and a jury again found him guilty of murder in the first degree and fixed his punishment at death in the electric chair. The present appeal followed.

For reversal, appellant assigns eight alleged errors. After reviewing them all, we find merit in but one of appellant’s assignments and that is number five which is: “ That the Court erred in admitting into evidence the actions of the appellant in connection with an alleged re-enactment of the crime immediately following the giving of an involuntary confession.”

Appellant, a Negro 19 years of age, brutally murdered his employer on the night of October 4, 1955 in the office of his victim’s lumber yard in Pine Bluff, Arkansas. (Reference is made to the first appeal for a more complete statement of the facts.) Appellant’s first confession, as indicated, was held to be coerced by the Supreme Court of the United States on the undisputed facts which are recited in that opinion as follows: ‘ ‘ The undisputed evidence in this case shows that petitioner, a mentally dull 19-year-old youth, (1) was arrested without a warrant, (2) was denied a hearing before a magistrate at which he would have been advised of his right to remain silent and of his right to counsel, as required by Arkansas statutes, (3) was not advised of his right to remain silent or of his right to counsel, (4) was held incommunicado for three days, without counsel, advisor or friend, and though members of his family tried to see him they were turned away, and he was refused permission to make even one telephone call, (5) was denied food for long-periods, and, finally, (6) was told by the chief of police ‘that there would be 30 or 40 people there in a few minutes that wanted to get him,’ which statement created such fear in the petitioner as immediately produced the ‘confession’. It seems obvious from the totality of this course of conduct, and particularly the culminating threat of mob violence, that the confession was coerced and did not constitute an ‘expression of free choice’, and that its use before the jury, over petitioner’s objection, deprived him of ‘that fundamental fairness essential to the very concept of justice,’ and, hence, denied him due process of law, guaranteed by the Fourteenth Amendment. ’ ’

The facts in the present case show that appellant, after he made and signed the above confession at about three o ’clock in the afternoon in the presence of the chief of police, police officers and others, including a newspaper reporter, was later on the same afternoon, at about five o’clock, removed in the car of the chief of police to the scene of the crime and in the presence of the same officers and others who had witnessed his confession, and without being allowed to consult counsel or anyone, was directed to re-enact the crime which he proceeded to do. In re-enacting the crime, he went through actions essentially and, in effect, what he had said in the confession less than two hours before. He demonstrated where he had picked up an iron bar from behind the door, how he had walked over to the desk where his employer was and struck him, then going behind the counter and striking decedent several more times, finally taking the wallet from decedent’s body, some money from the cash drawer, and then fleeing.

It seems to us, and we hold, that this re-enactment amounted to but a part of his coerced confession, and was also coerced and unlawfully obtained. Our rule in this state on the admissibility of confessions was announced in the early case of Love v. The State, 22 Ark. 336, where we held: “Confessions are not admissible against a party charged with crime, unless freely and voluntarily made, and the onus is upon the State to prove them of this character. When the original confession has been made under illegal influence, such influence will be presumed to continue and color all subsequent confessions, unless the contrary is clearly shown”, and in 50 Ark. 305, 7 S. W. 255, Corley v. State, we said: ‘ ‘ The rule is established in this state, in accord with the unvarying current of authority elsewhere, that a confession of guilt, to be admissible, must be free from the taint of official inducement, proceeding either ‘from the flattery of hope or the torture of fear’ ”, citing Bullen v. State, 156 Ark. 148, 245 S. W. 493. We also held in Turner v. State, 109 Ark. 332, 158 S. W. 1072: “Where improper influences have been exerted to obtain a confession from one accused of a crime, the presumption arises that a subsequent confession of the same crime flows from that improper influence; but such presumption may be overcome by positive evidence that the subsequent confession was given free from undue influence. ’ ’

The general rule regarding the admissibility of a subsequent confession- following an involuntary and coerced confession is stated in 20 Am. Jur., Evidence § 487, in this language: “If one confession is obtained by sueh methods as to make it involuntary, all subsequent confessions made while the accused is under the operation of the same influences are also involuntary. It is immate-rial, in this connection, what length of time may have elapsed between the two confessions, if there has been no change in the circumstances or-situation of the prisoner. Once a confession made under improper influences is.obtained, the presumption arises that a subsequent confession of the same crime flows from the same influences, even though made to a different person than the one to whom the first was made. However, a confession otherwise voluntary is not affected by the fact that a previous one was obtained by improper influences if it is shown that these influences are not operating when the later confession is made. _* ' * * The evidence to rebut the presumption that the subsequent confession, like the original confession, is involuntary must be presented by the prosecution and must be given at the time the subsequent confession is offered in evidence, provided the court is then cognizant that the accused has made a prior involuntary confession. The evidence to rebut the presumption must be clear and convincing, however. ’ ’

A review of this record convinces us that the fear and coercion that tainted the first confession were present in the re-enactment which, as indicated, we characterize and hold to be, in effect, a second coerced confession and hence evidence adduced at the re-enactment is also inadmissible and prejudicial to appellant.

Accordingly, the judgment is reversed and the cause remanded.

Robinson, J., concurs.

Harris, C. J., McPaddin and Ward, JJ., dissent.

Sam Robinson, Associate Justice,

concurring. I concur for the purpose of pointing out that this Court does not of its own volition find that the confession made by the appellant was involuntary. In fact, we have specifically held that the confession was voluntary; Payne v. State, 226 Ark. 910; but the Supreme Court of the United States overruled this Court on that point. Payne v. Arkansas, 356 U. S. 560, 2 Law Ed. 2d, 78 Sup. Ct. 844.

The United States Supreme Court decision that the confession was involuntary is the law of the case. Since it has been thusly decided that the confession was not voluntary, it must be considered as involuntary by this Court in reaching a conclusion as to whether the re-enactment of the crime by the defendant was, therefore, also involuntary. As pointed out in the majority opinion, the re-enactment was so closely connected with the confession as to form a part of the same transaction and is, therefore, inadmissible.

Carleton Harris, Chief Justice,

dissenting. The only question, as I view it, is whether the re-enactment of the crime by Payne was voluntarily done, or under duress and compulsion. The first Payne case was reversed by the United States Supreme Court under the holding that a confession of the defendant, admitted into evidence, was obtained by coercion. At no place in that Opinion is mentioned the re-enactment of the crime. I do not agree that Payne was acting under the operation of the same influences present when the confession was made. Evidence was offered in the first case that at the time the confession was made, Payne was told that thirty or forty people were outside the jail wanting in to get the defendant. According to Payne, the Chief of Police had told him “if I wanted to make a confession, he would try to keep them out.” No such threat occurred during the re-enactment, which took place at the building where Robertson was killed, a considerable distance from the jail. The testimony reflects that appellant’s actions on the premises were entirety-voluntary, and that he demonstrated the manner in which the crime was committed without “prodding” or suggestions from the police. For instance, relative to the murder weapon, a piece of iron, Payne, in relating from the witness stand his actions at the lumber company building, stated:

‘ ‘ Q. Where did you go first when you came in the rear of the building, where did you stop, did you stop ?
A. We stopped at the door if I am not mistaken.
Q. How far down from Mr. Robertson’s desk?
A. I wouldn’t know to be exact.
Q. Is it further than an arm’s reach away from the desk where you stopped?
A. Yes, sir, it is.
Q. Did you indicate at that point anything?
A. Yes, sir.
Q. What did you indicate there ?
A. At the door?
Q. That is at the door.
A. I indicated that I picked up an iron, I was picking up something there.
Q. You picked up something there - you said an iron what?
A. I said I was indicating where I picked up something.
Q. You indicated you picked up something — who lead you to that spot, Prank?
A. Who lead me to that spot?
Q. That’s right — who told you that was the spot where you picked up something?
A. No one. (my emphasis)
Q. No one did that, but you stopped at that point, didn’t you?
A. I did.
Q. And you indicated that you picked up something there. Then where did you go next?
A. To Mr. Robertson’s desk.”

He subsequently pointed out the place where he had thrown the weapon, which, according to the evidence, was within inches of the spot where it was found by a radio newsman. Appellant does not claim that he was forced to re-enact the crime, or that anybody told him what actions to perform. There is no claim that he was threatened or abused. Certainly, he had no reason to fear mob action at the time. The most that he said was that he was * ‘ scared. ’ ’ This certainly was not unusual, for most anyone who is arrested has a feeling of fear, and this is probably even true where people are stopped by officers and given traffic tickets. The point is that the officers did nothing to cause that fear. As stated, the sole question is whether this re-enactment was voluntary and free from any improper influence, and not traceable' to any prohibited influence previously exerted either by promise made by way of previous inducement, or by threats or violence. Smith v. State, 74 Ark. 397. The sheriff and police officers all testified that Payne received no promises, nor was he mistreated in any way in order to obtain the re-enactment, and Bill Miles, city editor of the Pine Bluff Commercial, testified that following the reenactment, he walked over to Payne and asked if he had been mistreated in any way, and that the defendant replied that he had not.

I am fully cognizant of the rights given a defendant under our Constitution, and I am entirely persuaded that Payne received every safeguard afforded by these guarantees. At the trial itself, the jury was instructed, at the request of defendant, as follows:

“Before any statements or acts made by the defendant to the officers or other persons can be considered by you as evidence in the case you must believe from the testimony that such statements or acts were freely and voluntarily made and done without any threat or fear of punishment and without any promise or hope of reward. If you believe from the evidence in this case that any statements or acts that were made or done by the defendant were freely and voluntarily made by him you should consider such statements and acts along with all the testimony in the case in determining the guilt or innocence of the defendant. If you believe that said statements and acts were not free and voluntary, that they were induced by fear of punishment or promise of reward, you should not consider such statements and acts for any purpose whatsoever.”

Certainly it is proper to assume that jurors consider all of the instructions given by the court. The jury (which incidentally, included two members of appellant’s race), by its verdict, if it considered the evidence of re-enactment at all, apparently found that these acts of the defendant were not coerced, and there being no evidence to the contrary, the jury’s verdict should be allowed to stand.

I strongly feel that the judgment should be affirmed.

Justices McFaddin and Ward join in this dissent.


author: Ed. F. McFaddin, Associate Justice.

text:
    Stevens v. State.
    4973
    332 S. W. 2d 482
    Opinion delivered February 22, 1960.
    [Rehearing denied March 21, 1960]

      A. C. Hervey, for appellant.

      Bruce Bennett, Attorney General, By: Ben J. Harrison, Asst. Attorney General, for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellant ivas tried and convicted of the rape (§ 41-3401 Ark. Stats.) of his eleven-year-old granddaughter, and sentenced to life imprisonment (§ 41-3403 Ark. Stats.). His motion for new trial contains seven assignments.

I. Sufficiency Of The Evidence. This embraces assignments 1 to 5 in the motion for new trial. The testimony is revolting'. Appellant, aged 67, lived in Chicago; but on two occasions he visited in the home of his daughter in Arkansas. On these visits the crimes were committed. The little girl testified that appellant commenced by putting his finger in her private parts; and later, on repeated occasions, put his private parts in hers, sometimes getting on top of her. Something caused the parents of the little girl to become suspicious, and they took her to a doctor for a physical examination. He testified that someone had definitely engaged in sexual intercourse with the child. Even though her tender age made consent legally impossible, nevertheless she stated the acts were ngainst her will. Even though her testimony did not have to be corroborated, nevertheless there was testimony that the appellant admitted “playing” with the little girl and “fingering” her. The appellant stoutly denied the crime, and character witnesses' testified on his behalf; but a study of the record discloses that there was Ample evidence to take the case to the jury and to sustain the verdict rendered.

II. Instructions. Assignments 6 and 7 relate to this topic. The Trial Court correctly instructed the jury as to rape, carnal abuse, burden of proof, reasonable doubt, ■credibility of witnesses, presumption of innocence, and forms of verdict; and the Court was correct in refusing the defendant’s requested instructions of not guilty. On appeal the appellant insists that the greatest crime for which he could be convicted is “fondling”, as proscribed hy Act No. 94 of 1953 (§ 41-1126 et seq. Ark. Stats.); but the defendant requested no correct instruction about ■“fondling”, and, as we have already stated, the evidence was sufficient to support the verdict of rape. Therefore, there is no necessity for us to consider the Act No. 94 of 1953.

Affirmed.

        Fields v. State, 203 Ark. 1046, 159 S. W. 2d 745; and Dawson v. State, 29 Ark. 116.

        Bradshaw v. State, 211 Ark. 189, 199 S. W. 2d 747; and cases there cited.


author: George Rose Smith, J.

text:
    State v. Langstaff.
    4965
    332 S. W. 2d 614
    Opinion delivered February 22, 1960.
    [Rehearing denied March 28, 1960]

      Bruce Bennett, Attorney General, By: Clyde Calliotte, for appellant.

      Switzer & Switzer, for appellee.
   George Rose Smith, J.

The appellee was arrested for speeding on a highway in Egypt township, Ashley county, and was given a traffic ticket directing him to appear in the Hamburg municipal court in the adjoining township of Carter. He contested the jurisdiction of the municipal court, contending that the arresting officer should have ordered him to appear before a justice of the peace in Egypt township. The municipal court rejected this plea, but on appeal the circuit court reversed the municipal court’s decision and remanded the case with directions that it be transferred to a justice of the peace in Egypt township. From that order the State has undertaken to appeal.

The appeal must be dismissed for want of a final order. “A judgment, to be final, must dismiss the parties from the Court, discharge them from the action, or conclude their rights to the subject matter in controversy.” Bank of the State v. Bates, 10 Ark. 631. The circuit court in substance ordered that the venue be changed to Egypt township. An order granting or denying a change of venue is not final, for the cause still stands for trial. Griffith v. State, 36 Ala. App. 638, 61 So. 2d 870; State v. Woodruff, 77 Ohio App. 278, 62 N. E. 2d 926.

The State is in'error in contending that it is permitted by statute to appeal from an interlocutory order. The statute relied upon, Ark. Stats. 1947, § 43-2706, was part of Title 9, Article 1, of the Criminal Code, which is applicable only to felonies. There is no similar provision in Article 2 of Title 9, which applies to misdemeanors and therefore governs this case.

Appeal dismissed.


author: Paul Ward, Associate Justice.

text:
    Powell v. State.
    4958
    332 S. W. 2d 483
    Opinion delivered February 22, 1960.
    [Rehearing denied March 21, 1960]

      Virgil Roach Moncrief and John W. Moncrief, for appellant.

      Bruce Bennett, Attorney General, By: Bill J. Davis, Asst. Attorney General, for appellee.
   Paul Ward, Associate Justice.

John Powell, Jr., the appellant, Odell Jackson and Bernard Smith were charged by Information with having carnal knowledge of one Arlester Darragh, age 14, on March 23, 1959. They were tried on April 16, 1959, convicted of carnal abuse and sentenced to one year in' the penitentiary. From that judgment John Powell, Jr. prosecutes this appeal.

On March 23,1959 the three persons above mentioned attacked Arlester Darragh, a negro girl 14 years of age. Appellant drew a razor and threatened Arlester in order to force her to carnally know one of the other boys. Appellant preserved numerous assignments of error in his Motion for a new trial including insufficiency of the evidence.

Sufficiency of the Evidence. Arlester and. her father testified that she was only 14 years of age when she was attacked. She said the three assailants came to the door of her home and asked for-a drink of water; that Jackson started wrestling with her when appellant pulled a razor and threatened her, thereby forcing her to carnally know Jackson without her consent; that she promptly called her father and they went to the police and reported the incident. The Chief of Police stated that he apprehended the three assailants who admitted to being in the house with Arlester but denied the specific charge; that appellant admitted to having the razor in front of Arlester and that he attempted to force her to carnally know one of them. The razor was later recovered on information given by appellant. The doctor testified that he examined Arlester and detailed certain evidence to support the charge of carnal knowledge.

Arkansas Statutes § 41-3406 provides: “Every person convicted of carnally knowing, or abusing unlawfully, any female person under the age of sixteen years, shall be imprisoned in the penitentiary for a period of not less than (1) year nor.more than twenty-one (21) years.” Also there is other testimony, as indicated above to corroborate Arlester’s story, however, since she was not an accomplice, no such corroboration was necessary. See Bond v. State, 63 Ark. 504, 39 S. W. 554; Waterman v. State, 202 Ark. 934, 154 S. W. 2d 813; and Clack v. State, 213 Ark. 652, 212 S. W. 2d 20. Arkansas Statutes § 41-118 provides that: “The distinction between principals and accessories before the fact is hereby abolished, and all accessories before the fact shall be deemed principals and punished as such.”

It is apparent from the above, therefore, that there is substantial evidence in the record to support the jury verdict. Especially is this true since it is our duty to view the evidence in the light most favorable to the State. See Daniels v. State, 182 Ark. 564, 32 S. W. 2d 169; West v. State, 196 Ark. 763, 120 S. W. 2d 26; Brown v. State, 203 Ark. 109, 155 S. W. 2d 722; and Higgins v. State, 204 Ark. 233, 161 S. W. 2d 400.

Appellant argues several assignments of error based on certain statements made by the trial judge concerning the credibility of witnesses; on the Judge’s action in sustaining the State’s objection to a question asked the prosecuting witness by appellant and on the admission of answers to several questions. We will not, however, consider the merits-of these assignments for the reason that no proper objections and exceptions were made in "these particular instances. See: McKinley v. Broom, 94 Ark. 147, 126 S. W. 391 and Hicks v. State, 225 Ark. 916, 287 S. W. 2d 12.

On cross-examination of the prosecuting witness the defendant asked her this question: “Did you have any trouble with your sisters because they were objecting to you running around and leaving home and having the police to look you up?” The objection by the State was sustained by the Court and this is assigned as error. Clearly the Court was right. Not only did'this question call for a conclusion but it was immaterial because of the age of'Arlester. On direct examination the State asked one of its witnesses this question: “Q. In your conversation with the prosecutrix did you learn the identity; of anybody you later picked up?” In response to appellant’s objection to the question the Court-stated: “He (the witness) can say whether or not she-described some people and whether- or not he made an investigation.” This did not constitute reversible error. See Trotter v. State, 215 Ark. 121, 219 S. W. 2d 636, where the Court in a similar situation stated: ‘ ‘ The statement merely ■ serves to explain why the policeman went to Mitchell’s truck.” The evidence elicited from the witness was not only not prejudicial to the rights of appellant but merely sought an explanation of the officer’s actions, as was sanctioned in Amos v. State, 209 Ark. 55, 189 S. W. 2d 611. For the same reasons it was not error for the trial court to admit into evidence the following question and answer: “Q. From the conversation with the little girl did you (the officer) later pick up somebody based on what she had told.you? A. Yes, sir, I did.” Upon objection the Court said: “He can . state what information he got from her (prosecutrix) and whether or not he acted on that information and what he did.” This was not error.

The officer, Lammers, was allowed over the objections of the defendant to testify that appellant told him that he told the prosecuting witness she was going to have intercourse with one of them and that he had a razor and had it up in front of her. This was admissible .as an admission tending to connect appellant with the crime for which he was charged. See Dearen v. State, 177 Ark. 448, 9 S. W. 2d 30.

After the State and the defense had closed their case .and after each had so announced, appellant moved for .a mistrial because of certain questions asked by the Prosecuting Attorney on the previous day during the trial. We have examined the questions complained of .and find nothing in them to call for a mistrial. Moreover, an objection to be effective must be made at the first opportunity to do so,' or appellant must move for exclusion. See Clardy v. State, 96 Ark. 52, 131 S. W. 46. At any rate, because of the delayed objection, the matter ■of granting a mistrial was in the sound discretion of the trial court and its action will not be reversed unless an abuse of that discretion is shown.' See Warren v. State, 103 Ark. 165, 146 S. W. 477.

Appellant objected to sevéral remarks made by the State’s attorney in his' closing1 argument, but we think any possible error was cured by the court’s cautionary instructions to the jury. The Court instructed the jury not to consider certain statements the State’s attorney .had made. In the case of Hicks v. State, 193 Ark. 46, 97 S. W. 2d 900, where a similar situation arose this Court said: “. . . the Court excluded the statement of the Prosecuting Attorney made in argument and told the jury not to consider the other case in any manner whatsoever. No error was committed in refusing to declare a mistrial, as we are of the opinion that, assuming the remark made in argument was improper, the instruction of the court that jury was not to consider it in any manner whatsoever had the effect of removing any prejudice that might otherwise have been caused thereby.” We have carefully examined the statements made in this case by the State’s attorney and we think any possible error was cured by the Court’s instructions.

Finally, appellant argues that the cause should be reversed because of the alleged error committed by the trial court in refusing to give appellant’s Requested Instruction No. 1 which reads as follows: “Even if you should find one of the defendants had, on some prior occasion to that mentioned in the information as having occurred March 23, 1959, had intercourse with the prosecutrix and that she was under 16 years of age, you would still not be justified in convicting for carnal abuse on any such prior occasion.” We think this instruction was properly refused because our search of the record fails to reveal any basis for the giving of such instruction, and appellant has not called our attention to any. This Court has uniformly held that where the evidence does not support an instruction it should be refused. See Sims v. State, 171 Ark. 799, 286 S. W. 981; Withem v. State, 175 Ark. 453, 299 S. W. 739; Smith v. State, 192 Ark. 967, 96 S. W. 2d 1; and Smith v. State, 213 Ark. 463, 210 S. W. 2d 913.

Therefore, finding no reversible error the judgment of the trial court should be, and it is hereby, affirmed.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Nutrena Mills, Inc. v. Millsap.
    5-2044
    332 S. W. 2d 232
    Opinion delivered February 22, 1960.

      Jameson & Jameson, for appellant.'

      Crouch,.Jones <& Blair, for appellee.
   Sam Robinson, Associate Justice.

This suit was' filed by appellant, Nutrena Mills, for $13,135.64, the alleged balance due on promissory notes in the sum of $39,136.05, given by appellees,. Harold and Yelma Millsap. Appellees filed a general denial and by way of - cross-complaint alleged that Nutrena had breached an oral contract to furnish to appellees money to purchase feed for turkeys during the year 1959 and asked for judgment in the sum of $20,000 for the'alleged breach of contract. The court directed a judgment for appellant, (plaintiff) in the amount sued for, $13,135.64. The counterclaim alleged in the cross-complaint was submitted to the jury and there was a jury verdict thereon in the sum of $13,135.64, the exact amount of the judgment directed by the court on the complaint. In addition', Nutrena’s motion for a reasonable attorney’s fee was granted and appellant was allowed an attorney’s fee of $1,209.91.

On direct appeal the principal point argued is that the court erred in not admitting in evidence a written contract between the parties dated March 5, 1957. The appellees’ notes were executed in pursuance to a written contract between the parties of that date, whereby Nutrena agreed to furnish not exceeding $40,000 to the Millsaps with which to purchase feed for 10,000 turkeys during the turkey growing season of 1957. Later, in December, 1957, the Millsaps applied to Nutrena for a loan of $87,960 to buy feed for 20,000 turkeys during the 1958 season. Nutrena refused to make the loan for the 1958 season. When this suit was filed the Millsaps’ December, 1957, application was inadvertently attached as an exhibit to the complaint instead of the contract of March 5, 1957.

During the trial of the case Nutrena attempted to introduce as evidence the March 5,1957 contract. Appellees pleaded surprise and objected on the ground that the December, 1957 application was'attached to the complaint and made a part thereof as constituting the written contract supporting the promissory notes. Over appellant’s protest the court sustained appellees’ objection to the introduction of the March 5, 1957 contract. ■

Appellant contends that the March 5, 1957 contract is very material, to. the issues involved here, maintaining, among other things, that certain provisions, of that contract go to show that no contemporaneous oral contract of any kind was entered into between the parties, and that the court’s action in not admitting the March, 1957 agreement in evidence constitutes reversible error. It does appear that the defendants .were confused by the December, 1957 application of the Millsaps being attached to the complaint as the agreement sued on. Harold Millsap testified to the effect that agents for Nutrena, in prevailing upon him to enter into the March 5, 1957 agreement, had contracted with him orally to the effect that if he suffered a loss the company would finance him for the following year. Thus, it can be seen that when Nutrena attached the December, 1957 application to the complaint as being the contract forming the basis of the suit, such application being for feed to be. furnished in 1958, one could very easily be confused as to which year the alleged oral contract applied. Oii the other hand, the notes sued on were listed in an exhibit to the complaint and they are all dated during the 1957' growing season.

In .the.circumstances, we believe that the March 5, 1957 contract should have been admitted in evidence, The cause must therefore he reversed and upon a new trial the pleadings can be straightened out and the true issues resolved. American National Ins. Co. v. Laird, 228 Ark. 812, 311 S. W. 2d 313. Other issues are raised by direct and cross appeal, but they are not likely to appear in a new trial.

Reversed and remanded.


author: Jim Johnson, Associate Justice.

text:
    Rayburn v. Rayburn.
    5-1995
    332 S. W. 2d 230
    Opinion delivered February 22, 1960.

      George F. Edwardes, for appellant.

      Shaver, Tackett & Jones, for appellee.
   Jim Johnson, Associate Justice.

This appeal arises from an award of custody of a minor child. Appellant, Harvey Elmo Rayburn, Jr., originally instituted this suit against appellee, Barbara Rayburn in Chancery Court seeking a divorce and the custody of his infant daughter. At the time the complaint was filed appellant was serving in the armed forces of the United States and a portion of the case was tried while he was still in the service. The divorce feature of the case was. eliminated because the parties became .reconciled for a brief interlude. Appellant proceeded with the child custody feature of the case. It was developed that he had been honorably discharged from the Military Service and had a practical and adequate plan worked out whereby he could take care of, nurture and rear his infant child with the aid of an aunt, Mrs. Guy Benton, who is a highly respectable woman.

It was further developed by the uncontradicted evidence that the mother of this child had neglected it during illness; that her careless indifference toward the child had,resulted in maternal criticism from her own family. She admitted that she had been arrested and confined in jail, and the entire record reflects that this mother was not only an indifferent and capricious mother but an incompetent one and totally unworthy of being placed in the custody and control of an infant daughter.

After the issues were so resolved a plea of intervention was filed by Ellis Wayne Lummus and Patsy Ruth Lummus, childless cousins of appellee. After a lengthy hearing, the Court awarded intervenors custody of the child. From such award comes this appeal.

On trial de novo we find the record reflects that on September 22, 1958, the Chancellor awarded temporary custody of the child to intorvenors-appellees after finding the child was being neglected in the home of its grandmother (mother of appellee). This temporary placement was made while appellant was still in the armed forces of his country. Before the final hearing appellant was honorably discharged from the military service and had a practical and adequate plan worked out whereby he could take care of, nurture and rear his infant child with the aid of an aunt with whom he lived and who had been almost a mother to him. Her age is less than 50 and according to voluminous undisputed testimony she is a highly respectable Christian lady who owns a fine home and is desirous of assisting appellant and his little daughter in any way she can.

Intervenors-appellees retained temporary custody of the child until the latter part of January 1959 at which time the Court awarded them permanent custody, stating:

“The Court chose to place the child in the care and custody of these intervenors because there was ample, wholesome evidence showing to the Court that the Lummus home was a good Christian home, that they regularly attend church, that they are a young married couple and have no children in their home, that they have built them a modern, suitable home in which to keep the child and rear her, and that Mr. Lummus has had a good job with the Red River Arsenal for several years; that it is a well-established home, that the child is adjusted and has shown marked improvement in her growth and health since she has been staying in said home, and that it is highly advantageous and to the best interests and welfare of the child that she be kept in this home permanently . . . ”

It is true that intervenors-appellees performed their duties as temporary foster parents of this little girl in a commendable manner. From the record there can be no doubt but that they are a good, kind, young couple and more than deserving of the confidence the Chancellor placed in them. However, the record reflects that there is nothing to prevent this fine couple from having a family of their own in the future and they have demonstrated in this case that they are deserving of all the wonderful blessings that may come their way. They will make exceptional parents. Possibly for the immediate present this young couple can do more for the child involved in this litigation than her natural father, assisted by his blood aunt; and possibly the removal of this young child from their loving care may result in temporary adversity to both the child and the foster parents. If so, we can only conclude that the longer the separation is put off the harder it will be for all concerned. Certainly reasonable visitation will be extended by the father. The test as to custody between a natural parent and a third person has never been based s.olely-upon who can do the most for the child. If this were the rule, there would be nothing to prevent a wealthy couple from selecting from among the children of the poor a child and demanding custody based on the rule. Fortunately, for the sake of a harmonious society, such is not the law.

The record reflects that appéllant is a clean, honorable young man devoted to his child, accustomed to labor and dedicated to duty. He doesn’t drink or smoke and attends church regularly. Certainly there is nothing uncontradicted in the record to indicate that he is not a fit and proper person to have the custody of his child, his own flesh and blood. A natural parent’s right to custody of a child is paramount to all others unless the parent is proved to be incompetent or unfit. See: Cook v. Haynie, 230 Ark. 174, 321 S. W. 2d 201; Holmes v. Coleman, 195 Ark. 196, 111 S. W. 2d 474; Loewe v. Shook, 171 Ark. 475, 284 S. W. 726; Baker v. Durham, 95 Ark. 355, 129 S. W. 789.

Therefore, the decree is reversed and the cause is remanded with directions to enter an order awarding the custody of Debbie Ann Rayburn to her father, the appellant herein.


text:
    Donaghey Foundation v. Little Rock University.
    5-2105
    332 S. W. 2d 497
    Opinion delivered February 29, 1960.

      Barter, Henry, Thurman & McCashill, for Little Bock University; Mehaffy, Smith é Williams, ~By:'Robert V. Light, for Little Bock School District, for appellant.

      Moore, Chowning, Mitchell, Hamilton & Burrow, for appellee.
   Carleton Harris, Chief Justice.

This suit involves the construction of certain provisions of a deed in trust, executed by George W.' Donaghey and his wife, on July 1, 1929, and marks the third time that an interpretation of the instrument has been before us. In The Little Rock Junior College v. The Geo. W. Donaghey Foundation, 224 Ark. 895, 277 S. W. 2d 79, we held that Little Bock Junior College, by expanding into a four year college, would not lose its identity as a beneficiary under the trust. The deed conveyed the property to certain individuals, as trustees, and provided:

“It is the object and purpose of this deed to convey the property herein described to said Trustees, their successors and assigns for the purpose of creating a fund or foundation to be used for the sole and exclusive benefit of the present Little Rock Junior College, an institution of learning in said city, at the present time operated under the management of the Board of School Directors of the Special School District of Little Rock, Arkansas, investing said Trustees with full discretion to select some other public school or schools in said city, operated by or under the management or supervision of the Board of School Directors of the said Special School District of Little Rock, and their successors in charge of the public schools in the said City of Little Rock, in the event the present Little Rock Junior College or its successors, should at any time cease to be operated by or under the supervision of the public school authorities in said city.” In 1957, the school directors of the Little Rock School District decided upon a plan to surrender their directorship of the college corporation to a private board, which would have the duty of serving the college only. In Greene v. Thompson, 227 Ark. 1089, 305 S. W. 2d 136, we held that the plan, as proposed, was a violation of the deed in trust, but further added, ‘ ‘ Should the School Directors of the Little Rock School District for any reason refuse to operate or supervise the Little Rock Junior College, then the power of equity to prevent the loss to the innocent beneficiary might be brought into play; but that situation is not here presented.” The situation referred to by this language has now come into existence. In the latter part of July, 1959, Articles 4-7 of the Constitution and Charter of Little Rock University were amended to provide that the management and administration of the affairs of the corporation would be vested in the directors of the Little Rock School District “so long as said Directors are willing to serve, and so long as the Directors collectively do actually undertake the duties of supervising and operating the corporation.” A Board of Trustees, composed of nine members, was created, whose duties are defined as follows: “So long as the Board of Directors supervises . and operates the affairs of the corporation, the sole function and authority of the Board of Trustees shall be to advise and counsel with the Board of Directors in all matters pertinent to the operation of the corporation.” Further: “In the event that the Board of Directors should ever refuse to operate or supervise the corporation, then upon the Board of Trustees being notified of such refusal, or upon the Board of Trustees making a finding of the fact of such refusal, the Board of. Trustees shall, and are hereby fully empowered to, assume all of the duties and powers of the governing Board of the corporation heretofore held and exercised by the Board of Directors.” The instrument further provides that the Board of Trustees, under those circumstances, shall continue to exercise the powers previously performed by the Board of Directors until such time as the Board of Directors notify the Trustees that they are willing to resume the operation and supervision. Finally, if the Board of Directors shall refuse to operate and supervise the corporation for an uninterrupted period of twelve consecutive months “then the Board of Trustees shall be thereafter the permanent governing board of the Little Rock University. * * *” The Board of Trustees of the University were advised by the six members of the Little-Rock School Board that “due to the heavy demands on our time made by the problems of school management of the Little Rock School District, we find it necessary to notify you that we now refuse to operate or supervise the Little Rock University. ’ ’ On August 10, 1959, a like notice was sent to the Board of Trustees of the George W. Donaghey Foundation. The Foundation, on August 14,1959, directed a letter to Richard C. Butler, Chairman of the Board of Trustees of Little Rock University, stating as follows:
“Being mindful of our obligations as Trustees and the duties and responsibilities imposed upon us by law, and in view of the decision of the Supreme Court of Arkansas in the case of Greene v. Thompson, we have decided that the only safe course for us to follow is to decline to pay Little Rock University the income derived from the properties owned by the George W. Donaghey Foundation.”

Thereafter, suit was instituted by Little Rock University, and its Board of Trustees, seeking a declaratory judgment defining and clarifying powers, duties, obligations, and rights of respective parties. The Chancellor, inter alia, found:

“23. The Board of Directors of the Little Rock Special School District have acted in good faith in refusing to operate Little Rock University, but it would be highly inequitable and would violate the purpose and intent of the trustors to permit, as a result of their refusal, a diversion of Donaghey Trust funds from Little Rock University to a public school or schools operated, managed or supervised by said Board.
24. Little Rock University has ceased to be supervised and operated by the public school authorities of the Little Rock School District through the unilateral refusal of the members of the Board of said District to supervise or operate said University and the equitable powers of this Court should be exercised to prevent the loss and damage that will be sustained by Little Rock University, its faculty, and its student body through the deprivation of said income.
And in answer to the questions upon which the plaintiffs and the defendants seek a declaratory judgment, it is by the' Court CONSIDERED, ORDERED, ADJUDGED AND DECREED THAT:
“ (a) The George W. Donaghey Foundation and its Trustees may not withhold from Little Rock University the income from The George W. Donaghey Trust be.cause of the refusal of the Board of Directors of Little Rock School District to supervise or operate Little Rock University.
(b) The Board of Directors of the Little-Rock School District by refusing to supervise or operate Little Rock University cannot force The George W. Donaghey Foundation and its Trustees to pay over the future income from said Trust to some public school or public schools of the City of Little Bock.
(c) No public school or public schools in the City of Little Bock have a paramount right to the income from The George W. Donaghey Trust over the claim of Little Bock University thereto, because of the refusal of the Board of Directors of the Little Bock School District to supervise or operate said University, but on the contrary the Little Bock University has a paramount right to such income.”
From such decree, the Foundation brings this appeal, and the Little Bock School District appeals from the finding of subsection (c).

Unquestionably, and this is admitted by all parties, Governor Donaghey’s prime objective in creating the trust was to aid the cause of higher education in Greater Little Bock. This is well shown in his Autobiography and Homespun Philosophy, which are discussed in Little Rock Junior College v. The Geo. W. Donaghey Foundation, supra. A detailed discussion of his intent is therefore unnecessary, but we quote a few excerpts as a means of emphasizing the Governor’s strong views. From Homespun Philosophy:

‘ ‘ I wonder how many of our citizens have made an estimate of what higher education has cost Greater Little Bock during the last fifty years. That is ■ to say, how much actual cash has been sent out of the city to pay for it, leaving out the questions of the thousands of poor boys and girls who are unable to foot the expense of going away from home to college. Suppose that we say that Little Bock has, during the past fifty years, sent an average of 200 boys and girls a year away, to college, which would seem to be a reasonable .approximate. Then suppose we estimate that the cash outlay has been an average of a thousand dollars per annum. It is .then but a simple -calculation to find that the .cost would amount to the stupendous sum of 10 millions of dollars, ten millions of dollars wasted on the winds of negligence; for the neglect of not building an institution of higher education at home and thereby having ten millions of dollars now invested in Little Rock in one of the best universities in all of the South. * * *

Boys and girls educated at home not only are in the majority and stand together in molding the opinions of the - State, but also are just about as well equipped for the affairs of life as-those sent away to school. In other words, sending a child to Yale or Harvard or any other college does little more to educate him than sending him to a home institution. Textbooks and lectures by trained instructors can be studied and heard at one place as well as another.”

From the Autobiography.

“After frequent consultations with the school authorities and trustees I was convinced that no greater field for educational development exists anywhere than can be found right here in Little Rock where hundreds of boys and girls after graduating from high school are unable to advance further through a course in college.”

Originally, the Little Rock Junior College used the Little Rock Public School buildings at a time when those buildings were not being used for common school education. Teachers of the Little Rock public schools were used by the college. In other words, the operation of the college was a part-time operation, and it is understandable that the Governor foresaw no future difficulty in the college being operated by the School Directors of the Special School District of Little Rock, who were operating the school at the time of the conveyance. In the meantime, however, the situation has undergone drastic change. For instance, in 1929-, there were twenty-seven schools in the Little Rock Public School System. By 1959, this number had increased to thirty-six. The faculty more than doubled, and the budget was nearly six times greater. In addition, divers problems have arisen in recent years, not present in 1929, such problems requiring a large expenditure of time by the School Directors. The college itself has likewise steadily grown. From 421 students in 1929, the enrollment has increased to 1,485. Compared to a 1929-30 budget of $36,874.33, we find that the present budget calls for $543,276, of which the University is dependent upon the Foundation for $90,000. It is apparent that Governor Donaghey could not, in 1929, have foreseen the conditions that make it almost impossible for the Little Rock School Board to operate the college. It is likewise apparent from his writings, that the growth of Little Rock University would have filled his heart and mind with pride and happiness — the happiness that comes to one when a dream is fulfilled. It is inconceivable that Governor Donaghey would have abandoned his fond expectations for a fine institution of higher learning in Little Rock simply because the school, without any fault of its personnel, could no longer be operated under public authority. Will equity permit an innocent beneficiary to suffer under such circumstances? The answer has been given many times. In 1 Restatement of Trusts 2d, § 167, this power is discussed under ‘ ‘ Change of Circumstances ’ ’, at page 351:

“(1) The court will direct or permit the trustee to deviate from a term of the trust if owing to circumstances not known to the settlor and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purposes of the trust; and in such case, if necessary to carry out the purposes of the trust, the court may direct or permit the trustee to do acts which are not authorized or are forbidden by the terms of the trust.”

In 89 G. J. S. Trust, § 87e (2), it is stated at page 895:

“In an emergency, or in circumstances not anticipated by the settlor, an equity court may, in order to preserve the trust or effectuate its purpose, authorize the trustee to deviate from its terms. * * * A court of equity will put itself in the trustor’s place and endeavor to authorize the trustee to deviate from the terms. of the trust iu a manner which the court believes the trustor would himself have authorized if he could have anticipated a necessity for subsequent alteration of his plan. ”

One of the best known cases dealing with the power of a court to alter administrative provisions in order to carry out the intent and purposes of the trustor in making the gift is Girard College Trusteeship, 391 Pa. State Reports 434, 138 A. 2d 844. There, Stephen Girard of Philadelphia, in his will, provided for the devise and bequest of his entire residuary estate to ‘ ‘ the Mayor, Aldermen, and Citizens of Philadelphia”, their successors and assigns, in trust, to erect a college for the benefit of certain orphan children. Certain conditions were then set forth, after which the instrument provided that if the city should knowingly and wilfully violate any of the conditions in the will, the remainder of the residue (except the income from certain real estate in Philadelphia) was to be given to the Commonwealth of Pennsylvania for purposes of internal navigation, and further, that if the Commonwealth failed to apply the bequest to the purposes mentioned, the said remainder was given to the United States of America for purposes of internal navigation. Following the decision of the United States Supreme Court, mentioned in footnote 2, the Orphans’ Court of Philadelphia County entered decrees removing the Board of Directors of City Trusts as trustee of Girard College, and substituted for that purpose thirteen private citizens, since the original board was unable to comply with the directives contained in the trust provisions. This action was upheld by the Pennsylvania Supreme Court, which, inter alia, stated:. . .

“In all gifts for charitable uses the law makes a very clear distinction between those parts of the writing conveying them, which declares the gift and its purposes, and those which direct the mode of its administration. And this distinction is quite inevitable, for it is. founded in the nature of things. We must observe this distinction in studying Mr. Girard’s will, otherwise we run the risk of inverting the natural order of things by subordinating principles to form, the purpose to its means, the actual and executed gift for a known purpose to the prescribed or vaticinated modes of administering it, that are intended for adaptation to an unknown future, and of thus making the chief purpose of the gift dependent on the very often unwise directions prescribed for its future security and efficiency.”

We agree with this logic; otherwise, the “tail would be wagging the dog.”

A study of that Court’s opinion, together with a vigorous dissent by Mr. Justice Musmanno, reveals that the Pennsylvania legislature, long years ago, enacted legislation authorizing the city of Philadelphia to provide for “the election or appointment of such officers and agents as they deem essential to the due execution of the duties and trusts enjoined and created by the will of Stephen Girard,” and further passed an act constituting Philadelphia the guardian of the person and property of every child admitted to Girard College. Forty-eight ordinances dealing with the college were passed by the City Council, and other legislation was enacted relative to the institution. Legislators visited and inspected the college ; its accounts were open at all times to state inspection; the city of Philadelphia was required to submit reports on the college to the legislature; the■treasurer of .the city of Philadelphia handled the funds of the Girard estate; and the city controller audited the accounts. From the Court’s action in affirming the decree, an appeal was taken to the Supreme Court of the United States, which, on June 30, 1958, issued the following- Per Curiam: “The motion to dismiss is granted and the appeal is dismissed. Treating the papers whereupon the appeal was taken as a petition for writ of certiorari, certiorari is denied.” 357 U. S. 570, 2 L. ed. 2d 1546, 78 S. Ct. 1383.

At once, a marked difference in the Girard case, and the case presently before us is noted. There, public officials of the City of Philadelphia were named as the actual trustees, and were charged with the duty of administering the trust. Here, only private citizens, or at least citizens acting in their private capacities, were named as trustees. Also, the Girard trustees were removed by court order, while in the case before us, the Board charged with operating the college has refused to perform that function. These facts, of course, make the position of Little Rock University even stronger in this litigation. Moreover, no legislative supervision has been afforded; nor has any public money been expended. Little Rock University is entirely a private institution, as that term is generally used.

In the Girard case, contingent beneficiaries existed, but the courts did not permit the primary beneficiary to suffer, even though this was true. We are likewise of the view that Governor Donaghey’s primary beneficiary should not suffer loss, even though contingent beneficiaries are provided.

Governor Donaghey’s writings made clear that he and his wife were interested in aiding the establishment of an institution of higher learning in this locality, designed primarily to accommodate prospective students from this area. Little Rock University presently qualifies to receive this aid. The trustees of the Donaghey Foundation, through counsel, have already stated, in open Court, their desire and intention to continue the payments to the University if such be approved by this Court. This course being adopted, the college is entitled to continue to receive the income until such time as there is a change of circumstances which would require the trustees to withdraw financial support from the University, i.e., the trustees cannot capriciously or abritrarily withdraw this aid. We do not define the term, ‘ change of circumstances”, for many unforeseen situations might arise, vis., a permanent closing of the college — the relocation of the college some distance away, or other change of similar moment. In such event, the trustees, in their discretion, could properly designate another beneficiary, eligible under the terms of the instrument. Since there is a possibility that such contingencies could arise, we modify the holding of the Chancery Court, wherein the court held that “Little Rock University.has a paramount right to such income.” With such modification, subsection (c) of the decree reads:

“No public school or public schools in the City of Little Rock have a paramount right to the income from The George Donaghey Trust over the claim of Little Rock University thereto, because of the refusal of the Board of Directors of the Little Rock School District to supervise or operate said University.”

So modified, the decree is affirmed.

       The proposed plan is set out fully in that opinion.

       This is the second ease involving the same subject matter. In the first case, found in 386 Pa. 548, the judgment of the Supreme Court of Pennsylvania was reversed by the Supreme Court of the United States. See Commonwealth of Pa. v. City of Phila., 353 U.S. 230.

       This was the corporate name of the city under Act of March 11, 1789. Subsequently, the title was changed to “The City of Philadelphia”. Actually, the college had been administered by the Board of Directors of City Trusts of Philadelphia, statutorily created by an act of June 30, 1869, which empowered the Board to accept and execute charitable trusts bequeathed to the city of Philadelphia as trustee.


author: J. Seaborn Holt, Associate Justice.

text:
    Southern Farm Bureau Casualty Insurance Co. v. Reed.
    5-2047
    332 S. W. 2d 615
    Opinion delivered February 29, 1960.
    [Rehearing denied March 28, 1960]

      Hardin, Barton, Hardin & Garner, for appellant.

      John Wm. Murphy and Hubert L. Burch, for appellee.
   J. Seaborn Holt, Associate Justice.

On or about June 2, 1956, appellant, Southern Farm Bureau Casualty Insurance Company, issued to Dennis Reed its policy of automobile insurance on Reed’s 1951 Chevrolet automobile. The term of the policy was from June 2, 1956 to December 2, 1956, and for additional six calendar month periods thereafter as agreed to. This policy, says appellant, “Insured a 1951 Chevrolet for everything except what is commonly known as collision coverage.” July 2, 1956, what is called a serviceman’s endorsement was attached to the policy and this endorsement was accepted by Reed on July 23, 1956, and contained the following provision: “As a part of the consideration for the issuance or continuance of this policy, in addition to the premium charged, it is hereby understood and agreed that the policy to which this endorsement is attached shall not be in force and effect while any motor vehicle which would be covered by this policy is being operated by any driver other than the named insured or member of his family.

This endorsement shall not in any way penalize or affect the interest of a lienholder under .any mortgage or lien on the motor vehicle described in the policy providing the company has prior notice of such interest.

All provisions of said policy in conflict with this endorsement are hereby modifiecl to conform to this endorsement. All other provisions shall remain the same. ACCEPTED /s/ Dennis F. Reed”

About March 22, 1957, Reed traded his 1951 automobile for a 1957 model Chevrolet, and. on being informed that he had traded automobiles and wanted collision and comprehensive coverage, appellant sent him another endorsement which was made a part of the policy, was accepted by Reed and for which he paid $2.85 in addition to his original premium. The record reflects that Reed, in order to finance the balance due on the 1957 Chevrolet, executed on March 22, 1957, his note for $600.00 to the Bank of Lincoln (Arkansas) and as security, executed a chattel mortgage to the Bank on the 1957 model automobile. The Bank was shown on the insurance policy as a lienholder. This note and mortgage were assigned to appellant on January 15, 1958. September 4, 1957, appellee, Reed, while a member of the IT. S. Air Force and stationed at George Air Force Base in California, was seriously injured in an accident and the automobile was almost completely wrecked. Thereafter, Reed demanded payment for his automobile damages from appellant, insurance company, which was refused. Reed then filed the present suit alleging that the policy had been issued and delivered to him before his loss on September 4, 1957; that he had fully complied with all the terms of the policy and prayed for damages in the amount of $2,650.00, together with a reasonable attorney’s fee. Appellant answered with a general denial and in a cross complaint, after setting out the assignment of the note and mortgage by the Bank of Lincoln to appellant, alleged that appellant succeeded to all the rights of said Bank and therefore was entitled to a judgment of $650.15.

On a trial before tbe court sitting as a jury, there was a judgment in favor of appellee on a finding by the court that the. endorsement on the policy, which modified the original terms of the policy, was without consideration and void. The judgment further recites that: “The Court finds that the value of the vehicle immediately before the collision, as stipulated by the parties, was $2,075.00, and that the plaintiff received $250.00 as salvage from the sale of the vehicle after the collision. The Court finds that the defendant paid a mortgage of plaintiff on said vehicle to the Bank of Lincoln in the sum of $650.12 and that the defendant' should receive credit for $650.12 paid to the Bank of Lincoln, $250.00 received for salvage of the vehicle, and $50.00 deductible under the provisions of said policy, and that plaintiff should recover from the defendant the sum of $1,124.85.”

■. While the trial court may have erroneously based its finding and judgment on the ground that the endorsement was void, we hold that the judgment, nevertheless, should be affirmed for the- reason that the facts would support a finding that appellee, Reed, was in fact driving his automobile at the> time of the mishap or accident and therefore the endorsement could not .affect his claim for damages. Our .rule of - long standing in this State is that we will not disturb a correct decision and judgment of a trial court though based on a wrong or insufficient ground. Hays v. Pope County, 7 Ark. 238, — -“In revising the judgments of inferior tribunals, this court will not regard the particular reasons upon which the judgment below may have been based, but will inspect the entire face of the proceedings as presented by the transcript, and quash or affirm according to the circumstances of the case.” Reese v. Cannon, 73 Ark. 604, 84 S. W. 793: “A judgment may be correct, though based on mistaken reasoning; and, if there be no error in the finding of facts, such a judgment may well stand. * * * The appellate court looks to the correctness of the judgment in review, and not to the reasons,given for the judgment.” Carolus v. Arkansas Light & Power Company, 164 Ark. 507, 262 S. W. 330: “This court will not reverse a correct ruling of the trial court, although an erroneous reason may be given for such ruling,” and again in State, Ex Rel. Attorney General, v. Gus Blass Company, 193 Ark. 1159, 105 S. W. 2d 853, we said: “Moreover, where the decision of the trial court is correct, it will be sustained when supported by principles of law thought by the trial court not to obtain.”

Reed testified that he was driving his car the last time he remembered anything about the evening on which the wreck occurred: “Q. At the last you remember, who was driving your vehicle? A. I was.” As we read the record before us, appellant offered no competent evidence to rebut Reed’s tetimony. Appellant offered the testimony of California State Trooper Sanders who did not see the accident and had not discussed it with anyone in the presence of Reed due to Reed’s physical condition. Appellant further offered a police report made by Sanders, who, as indicated, did not see the accident. Appellant also offered the testimony of Lt, Osborne in which he stated: “1. From your own observation, could you state on oath who was driving the automobile at the time of the accident? A. No” There was also offered a report of certain Air Police at the Air Base who were not witnesses and, therefore, could not be cross examined. All of this testimony was hearsay and inadmissible. While the burden of proof was on appellee, Reed, to make out his case by preponderance of the testimony, he has done so by what amounts to undisputed testimony. Reed made a prima facie case against the insurance company (appellant) when he proved his insurance contract with appellant and the damages to his automobile. The burden then shifted to appellant to present proof in rebuttal which it has totally failed to do. Life & Casualty Insurance Company of Tennessee v. Barefield, 187 Ark. 676, 61 S. W. 2d 698: “The rule appears to be that, when proof is made of damage apparently within a policy of insurance, the burden is on the insurer to show that the injury or damage was caused by an event from the occurrence of which the insured had-exempted itself from liability.” When, as here, the case is submitted to the trial judge, his finding of fact is as conclusive as the-finding of a jury.

The trial court properly disallowed an attorney’s fee under § 66-514 Ark. Stats., for the reason that appellee failed to recover the amount for which he sued. We held in Service Fire Insurance Company v. Horn, 202 Ark. 300, 150 S. W. 2d 53, “Where the plaintiff, in an action on an insurance policy, demands more than he recovers, he is not entitled to recover penalty and attorney’s fee.”

Finding no error, the judgment is affirmed.


text:
    Riverside Insurance Co. of America v. McGlothin.
    5-2093
    332 S. W. 2d 486
    Opinion delivered February 29, 1960.

      Pope, Pratt & Shambúrger, By: Richard L. Pratt, for appellant.

      Griffin Smith, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question presented is, whether the insurance company, pleading an exception clause, has proved facts, in support of the exception, with such sufficiency as to entitle the insurance company to an • instructed verdict. The Lower Court answered the question in the negative and rendered judgment in favor of the insured, McGlothin (plaintiff below), against the insurer, Riverside Insurance Company (defendant below), for .$300.00 plus interest, penalty* and attorneys’ fees. Such judgment is challenged by this appeal.

Riverside issued to McGlothin an insurance policy which insured the automobile and welding’ unit of McGlothin against loss or damage by fire. In the exclusion clause the policy provided: “This policy does not apply . . . (under fire coverage) ... to any damage to the automobile which is due and confined to . . . mechanical or electrical breakdown or failure, . . . unless such damage is the result of other loss covered by this policy.” The automobile was equipped with a welding unit, which had a gasoline driven machine and generator. While the policy was in force, the insured discovered flames coming from the welding unit. Prompt action extinguished the fire; but there was damage, which occasioned this litigation. The insured testified that he did not know what caused the fire. The welding unit and generator was taken to an electrical company for purposes of repair, and the owner of the electrical company testified for the plaintiff that the inner poles of. the generator were burned. On cross examination this occurred:

“Q. Mr. Brown, you say the ■ poles • were burned. Actually in this motor, constituting the motor are four magnetic fields setting around the generator proper?
A. Right . . .
Q. What was the cause of this fire?
A. Well, the only cause I could find would be a short in the winding.
Q. Electrical short in the wiring and setting of the fire. If the electrical short had occurred in the generator proper you know where the short was?
A. Not exactly because I never tore it down to check it . . .
Q. Now you don’t know whether the short might have been in the armature or in the fields?
A. I wouldn’t know until I tore into it and find out . . .
Q. The electrical short caused the main part of the damage ?
A. Right. ’ ’

Riverside called no witnesses; and the Court rendered judgment for the plaintiff. On appeal, Riverside urges one point: ‘ ‘ The judgment is contrary to the law and the facts”. The case was tried before the Court, sitting as a jury, so the point urged by Riverside is equivalent to saying that an instructed verdict should have been declared for the defendant.

The rule is well established in this jurisdiction that when an insurance company claims that it is not liable on its policy because of some exception or exclusion against coverage, then the burden is on the insurance company, not only to plead the exception, but also to prove facts that bring it within the exception. In U. S. Fire Ins. Co. v. Universal Broadcasting Corp., 205 Ark. 115, 168 S. W. 2d 191, we quoted from Life & Cas. Ins. Co. v. Barefield, 187 Ark. 676, 61 S. W. 2d 698:

“ ‘The rule appears to be that, when proof is made of damage apparently within a policy of insurance, the burden is on the insurer to shoiv that the injury or damage was caused by an event from the occurrence of which the insurer had exempted itself from liability.’ ”

In the case at bar, Riverside pleaded the exception as previously copied; and enough testimony was introduced to make a fact question as to .whether the fire loss was within the exception. But the insurance company, in claiming that it was entitled to a directed verdict — as it here does — had the additional burden of establishing facts within the exception with such complete definiteness that there was no fact question for decision. The insured proved the fire and testified that he did not know what caused it. The witness Brown stated that he did not dismantle the generator to check for the cause of the fire; and no testimony was offered to show that a fire did not cause the generator to develop a short.

To summarize, the exception was not proved by the insurance company with sufficient certainty to require a fact finding in its favor. Therefore, the Circuit Judge, sitting as a jury, had the right to find that the insurance company had failed to sufficiently, prove the pleaded exception.

Affirmed.

       There was a floating policy issued by another insurance company, but that policy was only for damages in excess of the Riverside coverage and the liability of the other insurance company passed out of the case.