author: George Rose Smith, Justice.

text:
    Roy Lee ROBINSON v. STATE of Arkansas
    CR 73-96
    500 S.W. 2d 929
    Opinion delivered November 13, 1973

      Guy H. Jones, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant’s first trial upon a murder charge resulted in a hung jury. At a second trial he was found guilty of involuntary manslaughter and sentenced to imprisonment for one year. Officer Vonnie Taylor had testified at the first trial, but he was not available at the second. The defense sought to introduce Officer Taylor’s earlier testimony, but the court excluded parts of it as hearsay. Asserted error in that ruling is now relied upon for reversal.

Officer Taylor investigated the homicide, which occurred in a cafe in Conway. The number and type of weapons involved in the affray were critical facts. At the second trial the court excluded certain questions and answers, such as the following excerpt from the record made at the first trial:

Q. [By Mr. Jones, a defense attorney.] And did you get any information from Gloria Burgess about any weapons?
A. Yes, sir.
Q. Not what she said, but did you get any information from her?
A. Yes, sir.
Q. And from her, how many weapons did you get information about?
A. Two.
Q. And what where they?
A. A knife and a gun.
Mr. Streett [the prosecutor]: If it please the Court, now Mr. Jones is doing exactly what the Court instructed him not to do. This witness can’t testify what somebody else said.
Mr. Jones: I did not ask that.
The Court: Ladies and gentlemen of the jury, disregard any testimony at all of this witness, or any other witness, based upon hearsay. If the defendant did not say it, or if it was not said in the presence of the defendant, forget about it. Go ahead.

No error appears. Counsel seems to have been under the impression that the hearsay rule can be avoided by asking for the substance of an out-of-court statement rather than for an exact quotation. The rule cannot be evaded in that way. McCormick on Evidence, § 249 (2d ed., 1972). The prohibition against hearsay would cease to exist if it could be so easily circumvented.

It is also argued that there was no objection by the State to the testimony when it was given at the first trial. We have quoted the objection and the court’s ruling that the testimony should not be considered by the jury. Even though the witness answered the questions before the objection was made, the delay of a few seconds was not sufficient to warrant our holding that the trial court abused his discretion in sustaining the objection. See Warren v. State, 103 Ark. 165, 146 S.W. 477, Ann. Cas. 1914B, 698 (1912), and Clardy v. State, 96 Ark. 52, 131 S.W. 46 (1910).

Affirmed.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    WHITE POULTRY SUPPLY, INC. v. BROWER MANUFACTURING CO.
    73-127 & 73-150
    500 S.W. 2d 927
    Opinion delivered November 13, 1973

      David R. Malone, for appellant.

      Wade, McAllister, Wade & Burk, P.A., for appellee.
   Lyle Brown, Justice.

These two appeals, No. 73-127 from the Washington Chancery Court and No. 73-150 from the Washington Circuit Court, were consolidated for purposes of briefing and submission. The cases are so interrelated that they cannot be segregated for discussion. In the chancery case the court approved the findings of a master which concluded that appellant, White Poultry Supply, Inc., was indebted on account to appellee, Brower Manufacturing Co., in the sum of $83,-565.79. It is White Poultry’s contention for reversal of the chancery case that the chancery court was without jurisdiction. Following the finding in chancery, the circuit court granted Brower Manufacturing’s motion for summary judgment in accordance with the finding of the master in chancery. (The judgment was slightly less, than the finding of the master, being based on the amount sued for.) White Poultry here contends that at the time the judgment was granted, the' circuit court was without jurisdiction over the accounting action. In addition to challenging the merits of White Poultry’s points for reversal, Brower Manufacturing contends that we should modify and affirm the chancery court with directions to enter judgment in that case, or we should grant Brower Manufacturing’s motion to dismiss White Poultry’s appeal in the chancery case for want of a final judgment and affirm Brower Manufacturing’s judgment rendered in the circuit court case.

This litigation was initially instituted in the chancery court. White complained its business had a gross income in excess of $75,000 annually; that it bought from Brower substantial supplies each year in connection with White’s business of retailing equipment and supplies used in the poultry, livestock, dairy and other agricultural industries; that White had returned consigned merchandise to Brower in the approximate sum of $27,-000 and had not received credit; and that White had made a payment of $15,000 and had not received credit therefor. (White also included in its complaint, allegations in tort and breach of contract.) White conceded that it was indebted to Brower but was unable to state the amount of debt with certainty. White asked that Brower be required to state the account after allowing all credits due it. In May 1971 the chancery court transferred White’s cause of action to the circuit court.

In September 1971 Brower filed in circuit court a counterclaim against White on a statement of account in the sum of $83,445.42. White countered that Brower was indebted to White in the sum of $10,099.80. White again asked that Brower be required to file an accounting between the párties covering a specified period of time. White also alleged that the claim of Brower for $83,445.-42 was incorrect and White filed its version of the' status of the account between the parties.

In March 1972 Brower filed a motion in circuit court to transfer to chancery. The circuit court retained jurisdiction of the tort and contract actions and transferred the claim and counterclaim for accounting to the chancery court. The chancery court accepted jurisdiction over the objection of White, the latter contending that the cause of action was not in equity jurisdiction and that jurisdiction was vested in the law court.

In May 1972 the chancery court appointed a master in chancery to state an account between the parties and report to the court. The master’s accounting was filed in December 1972, finding that Whte was indebted to Brower in the amount of $83,565.79 and that Brower was not indebted to White. That sum was $120.37 in excess of the amount for which Brower sued White. White filed no exceptions to the master’s report.

On February 7, 1973, Brower filed a motion in chancery to confirm the master’s report. White did not respond to the motion. Thereupon the chancery court on February 26, 1973, entered an order confirming the master’s report. White appealed here' from the order of confirmance and that case was docketed as No. 73-127. Brower filed here a motion to dismiss the White appeal. The motion was denied but "without prejudice to appellee [Brower] to raise the appealability of the order when case heard on merits.”

On February 27, 1973, Brower filed in the circuit court case a motion for summary judgment on its counterclaim for. $83,445.42. The motion was supported by pleadings, affidavit of Brower’s secretary, the master’s report, order in chancery court confirming the master’s report, and a request for admissions of fact propounded by Brower to White which were unanswered. White responded that the action taken in chancery was irregular; that the action of the chancery court had been appealed to the supreme court; that the circuit court had no jurisdiction over the master’s report because it would not become final until the appeal to the supreme court had been decided. The circuit court ruled that it had jurisdiction over the parties and subject matter, that there was no material question of fact to be resolved, and that judgment should be entered, which was accordingly done on April 20, 1973. The amount of the judgment was for $83,445.42.

On May 16, 1973, White dismissed without prejudice its claims pending in the circuit court sounding in tort and contract. On the same day White filed notice of appeal from the summary judgment and that appeal is docketed here at 73-150. That left no matters pending in the circuit and chancery courts except those matters now before this court on appeal:

1. The motion of Brower to dismiss the White appeal from the order of the chancery court confirming the master’s report.
2. The White appeal from the order of the circuit court granting Brower’s motion for summary judgment. (No. 73-150)
3. The White appeal from the order of the chancery court confirming the master’s report. (No. 73-127)

So much for the facts. The summary judgment (73-150) awarded Brower in the circuit court is reversed. That is because the judgment was based on the account between the parties; at the time summary judgment was rendered, that phase of the case was, and still is, in the chancery court. White’s appeal in No. 73-127 (the chancery case) is dismissed for want of a final judgment. Our holdings above recited leave only the issue of accounting between the parties to be litigated, which, as we have said, is presently pending in the chancery court.

It is so ordered.


author: John A. Fogleman, Justice.

text:
    Ruth TOMPKINS v. Don DUNCAN
    73-135
    501 S.W. 2d 210
    Opinion delivered November 13, 1973

      Jeff Duty, for appellant.

      Sidney H. McCollum and Little & Lawrence, for appellee.
   John A. Fogleman, Justice.

Appellant Ruth Tompkins was injured when the automobile driven by appellee Don Duncan struck her vehicle, which was stopped behind a school bus. She brought suit against appellee for injuries suffered by her. She appeals from a judgment based upon a jury verdict awarding her damages of $1,000. Her sole ground for reversal is that the jury verdict is grossly inadequate. Her hospital expenses were $55.25. The cost of replacing her glasses broken in the collision was $50.00. She was treated for a month or two by Dr. Billy V. Hall, whose bill was $89.00. She was examined two or three months after the collision by Dr, Coy Kaylor, whose bill to her amounted to $50.00. There was evidence that she had taken, and was still taking, medication, but there is no evidence as to its cost. Appellant testified that she was "off work” three days. The abstract reveals no evidence as to present or future loss of earnings.

Appellant was 47 years of age, with a life expectancy of 25 years, according to the American Table of Mortality. She suffered injuries which, according to her testimony, left her with a stiff neck and headaches. She said that she still had continuous pain and that sitting at a desk for any length of time, as she must do as a clerical employee at Gravette Hospital, causes stiffness and tension in her neck for which she has taken pain pills. She also stated that she has a few problems with her normal household duties. She has played some golf since the incident, but said that she experienced difficulty. She drives her automobile, but testified that she has difficulty in backing it because she must turn her head and is unable to twist her neck.

Dr. Kaylor testified that Mrs. Tompkins suffered a 25% loss of motion of the cervical spine in all ranges, and evaluated her permanent disability to the body as a whole at 10 to 15%. He felt that Mrs. Tompkins will need to continue pain medication and muscle relaxants.

Appellant recognizes the impact of Ark. Stat. Ann. § 27-1902 (Repl. 1962) and such decisions as Harlan v. Curbo, 250 Ark. 610, 466 S.W. 2d 459, but argues that this particular verdict is so grossly inadequate on its face that it shocks one’s sense of justice. She suggests that the award, in view of her injuries, should be considered as nominal. Neither the statute nor our decisions permit any exception because of gross inadequacy of any verdict when the damages are not susceptible of precise pecuniary measurement with reasonable mathematical certainty. See Harlan v. Curbo, supra; Munson v. Mason, 245 Ark. 686, 434 S.W. 2d 815; Worth James Construction Co. v. Herring, 242 Ark. 156, 412 S.W. 2d 838; Law v. Collins, 242 Ark. 83, 411 S.W. 2d 877.

This brings us to a consideration of appellant’s claim that the damages should be considered as only nominal. In fixing an amount to be awarded as nominal damages in Cathey v. Arkansas Power & Light Co., 193 Ark. 92, 97 S.W. 2d 624, we said that the amount of nominal damages may be variable, dependent somewhat upon the amount of the recovery and the circumstances of the particular case. In that decision we followed and quoted extensively from Western Union Telegraph Co. v. Glenn, 8 Ga. App. 168, 68 S.E. 881. In that case it was recognized that the term was a relative one, which contemplated a trivial sum. These cases, of course, relate to the propriety of the amount awarded when the party recovering was only entitled to nominal damages, but the principles should be equally applicable when we attempt to distinguish between nominal and substantial damages, even though the words may have a slightly different shade of meaning in the different contexts. See Black’s Law Dictionary, Third Edition; Kluge v. O’Gara, 227 Cal. App. 2d 207, 38 Cal. Rptr. 607 (1964). In the context of a case similar to this we made the distinction by considering nominal damages to mean damages in name only, not real or actual. Riley v. Shamel, 249 Ark. 845, 462 S.W. 2d 228. For the purpose of setting aside a personal injury judgment in the absence of any other error, as appellant seeks to do here, the inadequacy of damages not susceptible of reasonably precise pecuniary measurement will be considered as an appropriate ground only when the award of damages is so nominal as to amount to a refusal to assess damages. Riley v. Shamel, supra. See also, Dunbar v. Cowger, 68 Ark. 444, 59 S.W. 951; Carroll v. Texarkana Gas & Electric Co., 102 Ark. 137, 143 S.W. 586; Martin v. Kraemer, 172 Ark. 397, 288 S.W. 903. When we consider that the verdict is more than four times the damages which are subject to precise mathematical determination, and that the excess amounts to more than $750, we cannot say the damages awarded were merely nominal rather than substantial, even though the verdict seems conservative.

The judgment must be affirmed.


author: J. Fred Jones, Justice.

text:
    Gilbert WEIR & Lottie WEIR v. Revo TRUCKS & Sadie TRUCKS
    73-131
    500 S.W. 2d 923
    Opinion delivered November 13, 1973

      Paul K. Roberts, for appellants.

      Huey ir Vittitow, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Gilbert and Lottie Weir from an adverse chancery court decree on a petition they filed against Revo Trucks and Sadie Trucks for the removal of obstructions from a public road.

The appellants, Gilbert and Lottie Weir, are husband and wife and so are the appellees, Revo and Sadie Trucks. For convenience the parties will be referred to hereafter as Weir and Trucks. Weir and Trucks own adjoining properties. The Weir property lies north and east of the Trucks property and the road involved in this litigation runs east and west and then north and south between the two properties. Throughout the record the road is referred to in separate parts as the “East-West road” and the “North-South road.” That portion of the East-West road in litigation extends the full east-west width of the Trucks property between it and the Weir property to the north, and the North-South road extends from the northeast corner of the Trucks property south between the Trucks property and the Weir property lying east of the Trucks property. The Trucks home is in the northwest corner of his property near the west end of the East-West road. There are also two abandoned houses and a barn on the Trucks property south of the East-West road. One of the abandoned houses and the barn were built by Otto Harding who subsequently sold the property to Trucks. The Weir home is located on his property north of the Trucks property and has access to and from the county highway system over Weir’s own property and has no connection with the East-West road between the Weir and Trucks properties. Weir contends that he needs access over the road here involved to and from his property lying east of the Trucks property, and that he has a right to such access as a member of the traveling public. Trucks built a wire fence within three or four feet of Weir’s fences on the north side of the East-West road and on the west side of the North-South road and this litigation arose when Trucks attached a “Posted, Keep Out” sign on the gate across the west end of the East-West road near his home.

Weir filed the present action against Trucks alleging that a public road had existed between his and Trucks’ land for more than fifty years; that Trucks had built fences and gates across the road and he prayed an order for the removal of the obstructions. Trucks denied the allegations and specifically denied that there had been a public road between the lands for more than fifty years.

The chancellor found some evidence that a public road had been established by prescription over the area many years ago but found that its use had been abandoned by the public for more than seven years, and the chancellor dismissed Weir’s petition for want of equity. The chancellor set out in some detail his findings from the evidence in this case and from our own examination of the record, we agree with the findings made by the chancellor.

The substance of Mr. and Mrs. Weir’s testimony was to the effect that Mrs. Weir’s father owned a part of their land many years ago and by mutual agreement about 1915 he and the then owner of the Trucks land set their fences back TA feet from their true common boundary line and established a road between their properties for the use of the general public. They said the general public continued to use the road until Trucks built a fence within two or three feet of their own fence and placed a “Posted, Keep Out” sign on the gate at the west end of the road near Trucks’ house.

Otto Harding, the last person besides Trucks who lived on the road, testified that the road had been an old log road but had grown up in bushes and trees when he purchased his ten acres twenty years ago. He said when he told Weir he had purchased the land and intended to build a house on it, Mr. Weir remarked that there was no road to it. He said he purchased the land from Trucks and Trucks agreed to give him all the land necessary for a road. He said he borrowed the money with which to purchase the land and it was necessary to prove to the satisfaction of the lender that a road would be built to the property before the loan was made. He said he cleared out the road from its west end to his house and finally prevailed upon the county judge to pull a ditch on each side of the road. He said the road was used by people coming to his home. Mr. Harding testified that gates were maintained at the west and east end of the East-West road and a gate was maintained and kept locked at the south end of the North-South road. He said he built the gate across the west end of the East-West road about 18 or 19 years ago, and that he maintained two other wire “gaps” across the East-West road adjacent to his property. .

Mr. Weir admitted the existence of gates for many years across the west and east ends of the East-West road and at the south end of the North-South road, and admitted the existence of wire gaps across the road. The gate at the east end of the East-West road was owned and maintained by Weir.

Mr. Trucks testified that many years ago, before Weir purchased the property east of his own, a family lived on that portion of the property at the east end of the East-West road and traveled the East-West road to and from their home. Trucks said he placed the no trespassing sign on the gate to keep people from dumping trash on his property and he built his fences so close to Weir’s fences to retain his bull, which would not jump a double fence. He said he had his property lines surveyed and built his fences within his legal boundary lines. His testimony as to the survey and its accuracy is not controverted. Harding also testified that he had his ten acres surveyed and Weir’s fence was on the true division line according to the survey.

There was some evidence that hunters and fishermen visiting local stock ponds still used the road and that on occasion adjacent landowners used it on foot and horseback in visiting their property; but from the overall evidence, if the road involved in this case was ever a public road, we agree with the chancellor that it became a public road by prescription and has long since been abandoned by the public as a public road and, that was actually the only question before the chancellor.

A public road may be established by judgment of the county court rendered in accordance with the statute or by voluntary dedication or by prescription. Craig v. Greenwood Dist. of Sebastian County, 91 Ark. 274, 121 S.W. 280.

In the case of McLain v. Keel, 135 Ark. 496, 205 S.W. 894, partially relied on by the chancellor in the case at bar, this court said:

“It is well settled that where a highway is used by the public for a period of more than seven years, openly, continuously and adversely, the public acquires an easement by prescription or limitation of which it can not be disposed by the owner of the fee. * * * But it is also equally well settled that the right to a public highway once established by limitation or prescription may be abandoned by non-user, and if so abandoned for a period of more than seven years, the right of the owner of the fee to re-enter and to thereby exclude the public from the use of the highway is restored.”

See also Martin v. Bond, 215 Ark. 146, 219 S.W. 2d 618.

In the case of Porter v. Huff, 162 Ark. 52, 257 S.W. 393, the facts were much like those in the case at bar, and in that case we said:

“It is unnecessary to decide whether the public acquired a right to the use of the road as a public road by prescription or seven years adverse possession, for it lost any right it may have acquired by acquiescing in permissive use thereof for a period of more than seven years after the road was closed by gates. When appellee inclosed his land and placed gates across the road, it was notice to the public that thereafter they were passing through the land by permission, and not by right. The undisputed evidence shows that these gates were maintained by appellee across the road for ten or eleven years, without objection on the part of the public.”

See also Pierce v. Jones, 207 Ark. 139, 179 S.W. 2d 454, and Munn v. Rateliff, 247 Ark. 609, 446 S.W. 2d 664. In Munn v. Rateliff this court said:

“The rule is well established that when a gate is maintained for more than 7 years across a road in which the public has a prescriptive easement, then it is deemed that the public has abandoned the road and the landowner has the right to close it permanently and restrict the road to permissive use. Brooks v. Reedy, 241 Ark. 271, 407 S.W. 2d 378 (1966); Nelms v. Steelhammer, 225 Ark. 429, 283 S.W. 2d 118 (1955); Mount v. Dillon, 200 Ark. 153, 138 S.W. 2d 59 (1940); Porter v. Huff, 162 Ark. 52, 257 S.W. 393 (1924). In these cases we recognized the rule that the installation of the gap or gate .was notice to the public that the road was being used by permission and not as a matter of right. It is the existence of the gate and not how continuously it is closed that constitutes notice. In Brooks v. Reedy, supra, we said: '* * # But it is, we think, clearly established that the gates w;ere in existence at all times from 1952 on, whether up or down.’ And further: ‘* * * It may well be that those using the roadway did not always put up the gaps; however, be that as it may, the important fact is that the fence and gates were in place for the statutory period, and, under the language in Mount v. Dillon, supra, the fact that the gates were not always closed does not make any difference.
In the case at bar the chancellor had the opportunity to see and hear the witnesses in evaluating the evidence .which was in conflict. In such a situation our rule is that when the evidence is conflicting and evenly poised or nearly so, the judgfnent of the chancellor on the question of where the preponderance of the evidence lies is considered as persuasive. Turnage v. Matkin, 227 Ark. 528, 299 S.W. 2d 831 (1957). In view of this well established rule and after a review of the testimony and exhibits presented in the case at bar, we cannot say the findings of the chancellor are against the preponderance of the evidence.”

See also Simpson v. State, 210 Ark. 309, 195 S.W. 2d 545; Lusby v. Herndon, 235 Ark. 509, 361 S.W. 2d 21.

We agree with the chancellor in the case at bar, that if the public did ever have any right to use the road in question, such right was acquired by prescription and was lost when the public acquiesced for more than seven years to the building and maintenance of the gates and gaps across the road. Following such period of acquiescence by the public without complaint, the traffic over the road became permissive and the owner of the land over which the road runs has the right to close the road to the public.

In addition to the appellants’ contention that the chancellor erred in failing to order the roads opened as public roads, they now contend on this appeal that the chancellor erred in failing to order the roads opened as private roads. This second contention was not before the chancellor at the trial and we are unable to consider assignments of error on contentions raised for the first time on appeal. Wright v. Ark. State Highway Comm’n, 255 Ark. 158, 499 S.W. 2d 606.

The decree is affirmed.


author: Conley Byrd, Justice.

text:
    Elaine WARREN, A Minor, and William C. WARREN v. Betty HAYES
    73-138
    500 S.W. 2d 923
    Opinion delivered November 13, 1973

      Cockrill, Laser, McGehee, Sharp ir Boswell, for appellants.

      Howell, Price, Howell ir Barron, for appellee.
   Conley Byrd, Justice.

Late in the afternoon of the day before trial of this rear end automobile collision case appellants Elaine Warren, a minor, and William C. Warren amended their general denial answer to plead contributory negligence. Over objections of appellee Betty Hayes and notwithstanding a motion for a continuance, the case was tried to a jury resulting in a $1,000 personal injury verdict. The trial court granted appellee a new trial. We cannot say that the trial court abused its discretion under the circumstances.

Affirmed.


text:
    Danny JEFFRIES v. STATE of Arkansas
    CR 73-112
    501 S.W. 2d 600
    Opinion delivered November 13, 1973
    [Rehearing denied December 17, 1973.]

      Christopher C. Mercer and James R. Howard, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Danny Jeffries was charged in the Municipal Court of Little Rock on in-formations filed by the prosecuting attorney with four violations of Act 590 of 1971 involving the sale of marijuana. Before a preliminary hearing was had in municipal court, the prosecuting attorney filed informations in the circuit court alleging the same violations. Appellant was found guilty by a jury upon one of the charges. The remaining three charges were consolidated and tried before the court resulting in four nine year sentences running concurrently. For reversal appellant contends:

“I. The Court erred in failing to quash the informa-tions in all cases and remand the case to the Municipal Court for a preliminary hearing.
II. The Court erred in the procedure followed in forming the Jury in this case and in not permitting the Defendant to exercise peremptory challenges prior to the time that the Jury was sworn to try the case.
III. The Court erred in not granting the Appellant a mistrial because of the remarks of a Juror before the entire panel prior to the time the Jury was sworn to try the case.”

POINT NO. I. We have consistently construed our preliminary hearing statutes as directory and not mandatory. In fact we have held that the failure to take one before a magistrate for a preliminary hearing is not reversible error. See Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458 (1969).

Under this point appellant also complains of the expense and unfairness of having to make bail bonds both in the municipal court and the circuit court. In a review on appeal where the chief concern is whether appellant received a fair and impartial trial, we must hold that no reversible error has occurred. Whether the law may otherwise afford a remedy for the supposed wrong is not before us in this proceeding.

POINT NO. II. The record shows that the trial court strictly followed the procedure set out in Ark. Stat. § 43-1924 by requiring the State to first exhaust her challenges to a particular juror and then requiring defendant to exhaust his challenges. After some of the jurors had been accepted by both the State and the appellant, the látter moved to excuse a juror previously accepted. Upon the showing here made the trial court did not abuse its discretion in refusing to permit appellant to then peremptorily challenge the juror. See Allen v. State, 70 Ark. 337, 68 S.W. 28 (1902).

POINT III. During the voir dire of the jury one of the prospective jurors stated:

“Your Honor, May I say something as a juror? I have been a prospective juror on other cases and I have told the Defending Attorney that I feel like I am more prejudice than others in drug cases and I also believe in entrapment, which I feel like most of these cases are, and I also believe that even possession of drugs, of an illegal drug is evidence of guilt. ...”

The juror was promptly dismissed by the court, but appellant contends without citing authority that the trial court should have granted a mistrial. The granting of a mistrial is a rather extreme remedy and is a matter in which the trial court has considerable discretion. Under the circumstances it would appear that the trial court properly denied the motion for a mistrial.

Affirmed.


author: Frank Holt, Justice.

text:
    R. B. TURNEY v. Wayne ROBERTS, et al
    73-116
    501 S.W. 2d 601
    Opinion delivered November 13, 1973
    [Rehearing denied December 17, 1973.]

      Charles W. Atkinson, for appellant

      Jeff Duty, for appellees and cross-appellants.

      Womack & Lineberger, for intervenor and cross-ap-pellee.
   Frank Holt, Justice.

The appellant, a Florida resident, brought this action to reform a $20,000 note and mortgage given to him by the appellees, Wayne Roberts and his wife, Hazel Bishop Roberts. Reformation was sought upon the allegations of fraud and other inequitable conduct on the part of the Robertses. Appellant Turney also sought foreclosure and subrogation as to a previous encumbrance (Denham) on the real property. The Robertses admitted execution of the note and mortgage and interposed usury as á defense. Subsequently, cross-appellee Richardson filed an intervention alleging that the Robertses were indebted to him for $3,000. He also sought subrogation. The Robert-ses invoked, inter alia, the statute of frauds to avoid payment of the Richardson loan. The chancellor sustained the Robertses’ defense of usury and cancelled their note and mortgage to Turney who brings this direct appeal. The chancellor upheld the contentions of intervenor Richardson. The Robertses cross-appeal from that part of the decree favorable to Richardson.

Appellant Turney and cross-appellee Richardson had loaned $17,000 and $3,000 respectively to the Robert-ses to redeem their property (bid in for $33,250) before the .actual sale in a foreclosure proceeding instituted by Edward Denham and his wife. After receipt of the alleged loans, the appellees paid into the court registry the sum of $19,424.21 to redeem their property.

We review the pertinent evidence with reference to both loans. For approximately a year preceding the Turney loan, the Robertses and the Richardsons had lived in Texas as neighbors and frequently visited each other. Richardson and the Robertses were employed at a Mexican Baptist children’s home. During this time and before the $5,000 loan, it appears that the Robert-ses had borrowed money occasionally from the Richard-sons and $862.62 of these loans remains unpaid. When the Denhams’ foreclosure proceeding was instituted against the Robertses’ Arkansas property, they endeavored to secure a $20,000 loan from the Richardsons. Roberts represented to them that the value of their Arkansas home and property was approximately $250,000 and, by the foreclosure proceeding, they would lose everything including opening a children’s home, which they were planning to do. Roberts "bothered us all the time” about loaning him funds to pay off the Denham note. Roberts himself persisted to the extent he actually drafted a note and mortgage for $20,000, saying he would like to make it $25,000 in order to meet his needs for living capital. Richardson told Roberts that he and his wife were unable to raise the money for the requested loan. About a month later the Richardsons loaned $3,000 to Roberts when he exhibited to him a $17,000 cashier’s check which represented a loan recently made to him by appellant Turney. Roberts insisted in his renewed plea for assistance he was in desperate need of another $5,000 and told the Richardsons their name would be on the $20,000 Turney mortgage. He gave them a receipt (check) indicating that the loan was part of a mortgage payment. No rate of interest was discussed. Roberts had shown them an abstract, deed and an appraisal of the property when he told them it was worth $250,000. He persuaded them to believe that he wanted to sell it and use the proceeds for building a children’s home and the property had increased in value because an organization was going to build a shopping center on the Arkansas property. He assured them the loan would be needed no longer than three weeks. Through a minister friend, Arnold Lawrence Robertson, the Richardsons understood that appellant Turney was a very religious man who devoted much of his time and effort to Christian work and projects.

Robertson, the minister, testified he had known appellant Turney and his Christian endeavors for almost twenty years. The minister further testified that he had known the Robertses for about seven years. He was in Texas and present when a discussion arose between the Robertses and the Richardsons about building a children’s home. Roberts, however, mentioned that his Arkansas property was being foreclosed and Mrs. Roberts was upset and weeping about it. The possibility of getting money from foundations that build children’s homes was discussed as a source of a loan. Robertson told the Robertses that he had no contacts in Texas and if he found anybody in Greensboro, North Carolina, where he was going he would let him know. Shortly thereafter, the minister was surprised when he received a call from Roberts who was in Greensboro. Roberts wanted to see a local individual which he was unable to do that day. The minister then called appellant Tur-ney, a friend of his, in Orlando, Florida, and told Turney in Roberts’ presence that Roberts, also a friend, was in Greensboro; that it would be necessary for him, Roberts, to borrow approximately $17,000 to pay off a mortgage on his home in order for him to be able to sell it and invest the proceeds in a children’s home. Then he heard Roberts talk with appellant Turney on the phone telling him he would pay 10% interest on the requested loan and would give him a bonus if he, Roberts, could sell his property within a short time. He heard Roberts assure Turney that his home was valuable property which included fifty or sixty acres. As previously indicated, the minister and appellant Turney had been friends for several years. They had worked together in children’s projects and each assisted in the Christian Missionary Movement called Transworld Radio.

Appellant Turney verified the minister’s testimony about his introduction to Roberts by telephone from North Carolina. This conversation lasted about one hour. Roberts was in urgent need of $17,000 to pay off a mortgage on his home. He was so desperate he cried during the conversation. Thereafter, Roberts persisted in calling Turney from different locations in Texas and said he would like to come to Florida. On September 3, 1971, after calling Turney, Roberts flew to Orlando where Turney picked him up at the airport. Roberts did not know whether Turney had funds for a loan; however, Turney and his wife went to a bank and raised $17,000 by pledging their son’s college funds, a life insurance policy, and by cashing their savings bonds and checking accounts. Roberts had told Turney before he arrived that he would have a note and mortgage made to them on his Arkansas property which was worth $275,000. Roberts had with him one note for $20,000 dated September 1, 1971, drawing 10% interest, secured by a mortgage of even date payable in forty-five days. The length of the loan was determined at the bank. He also left his deed to the property. He was in Orlando about three hours during this transaction at the bank. Roberts again assured him that the property was worth between $250,000 and $275,000. Roberts “broke down and cried” at the bank when he received the $17,000 loan. At that time Roberts voluntarily, to Turney’s surprise, acquired a blank note and completed it in the face amount of $5,000, without interest, and tearfully presented it as a gratuity or bonus to Turney. Roberts showed Turney some papers involving the sale of two pieces of property at $700,000 to $800,000. He assured Turney that within a month and a half that the large real estate transaction would be completed.

Turney testified that Roberts “assured me at the bank that he was well aware of all legal implications, and that’s the reason why he had everything fixed up [$20,000 note and mortgage] before he came; and he assured me, gave me assurance that everything was right, and everything was above board. That’s the reason why he had taken care of it so well. I was amazed with the experience that he seemed to have, and with the portfolio that he brought down with him, with — showing me the pictures of his property in Texas — the children and all like that.” At the bank Turney told the banker he was loaning $17,000 to Roberts, showed him the mortgage, and consulted with the banker who said it “looks alright to me.”

Appellant Turney testified that he and Robertson, the minister who introduced Roberts to him on the phone, were very close friends and that his introduction about Roberts was “good enough for me.” Turney is on the board of directors of the Transworld Radio Gospel Broadcasting operation which broadcasts in 26 languages off the coast of South America. He spends each weekend trying to raise funds for this cause and pays his own expenses. Appellant is approximately fifty years of age, and has served in the U. S. Air Force as a supply systems analyst for twenty-seven years. For the ' past year he has been in business for himself. His experience in loan transactions is limited to the purchase of his house, buying a car, and a bank loan. In fact, he did not have the Roberts mortgage recorded until it became necessary to file a suit for collection of his loan. Although the appellant filed a verified complaint seeking recovery of $25,000 or the total of the two notes, he denied he authorized a local Florida attorney to instruct the Arkansas attorney to seek recovery in excess of the actual loan which was $17,000. The Arkansas attorney promptly amended the complaint to seek recovery of only $17,000 plus 10% interest per annum when it was first brought to his attention that this figure was the correct amount of the loan. Neither of the Robertses testified.

The chancellor correctly held that the transaction is usurious. Ark. Constitution, Art. 19, § 15, renders a contract void and unenforceable when the contract exceeds 10% interest. Here the loan bearing 10% interest was exceeded by $3,000. Obviously the chancellor was troubled in cancelling the indebtedness. As abstracted, he observed:

Roberts deserves the strongest condemnation and by all basic equitable principles [clean hands], should be ‘sent hence without day,’ but for the strong public policy of this state. If it were not for the posture of Turney and the Constitution [Ark. 19, § 13] as construed by the Court, the decision would be against appellee.

We agree that the transaction presented a troublesome problem in view of our rather strict interpretation of our usury law. However, we have long recognized that written instruments are subject to reformation. In Arnett & Arnett v. Lillard, 245 Ark. 939, 436 S.W. 2d 106 (1969), we said:

Equity will reform written instruments in two cases: [1] Where there is a mutual mistake — that is, where there has been a meeting of minds — an agreement actually entered into, but the contract, deed settlement, or other instrument, in its written form, does not express what was really intended by the parties thereto, and [2] Where there has been a mistake of one party accompanied by fraud or other inequitable conduct of the remaining parties.

To the same effect is Hervey v. College of The Ozarks, 196 Ark. 481, 118 S.W. 2d 576 (1938), Davidson v. Peyton, 190 Ark. 573, 79 S.W. 2d 734 (1935), Commonwealth Bldg. and Loan Assn. v. Wingo, 189 Ark. 1033, 75 S.W. 2d 1008 (1934), Barton Mansfield Co. v. Wells, 183 Ark. 174, 35 S.W. 2d 337 (1931), and Welch v. Welch, 132 Ark. 227, 200 S.W. 139 (1918). In order to reform a written instrument, the evidence must be clear, convincing, and decisive. Hervey v. College of The Ozarks, supra.

In Welch v. Welch, supra, the court recognized that “[AJlmost all written instruments may be reformed when a proper occasion is furnished.” In the case at bar, we are of the view “a proper occasion” is presented for reformation of the note and mortgage, based upon clear, cogent, and convincing evidence. The evidence is uncontradicted that the lender was mistaken in that be believed, due to the borrower’s misrepresentations, that the transaction met the requirements (“legal implications”) of Arkansas law. In addition, the borrower’s conduct and misrepresentations certainly taint the transaction with fraud or at least with inequitable behavior. We perceive no valid rationale why a usurious contract is immune to reformation. Our usury law is not so ironclad nor designed to provide an impenetrable shield so as to prevent absolutely an action for reformation of a written instrument. We hold that the Roberts note and mortgage should be reformed to reflect $17,-000 indebtedness, bearing ten percent per annum interest, to appellant Turney. To that extent the decree is reversed. However, we do not determine any subrogation rights as to appellant.

On cross-appeal the Robertses contend that the “court erred in subrogating Leonard E. Richardson to the rights and priorities of” the Denhams. Cross-appellants, the Robertses, invoke the statute of frauds with respect to the collection of the $3,000 Richardson Loan. They make the argument there is nothing to support the existence of this loan other than the testimony of Richardson and his wife that their name would be on the $20,000 mortgage which the Robertses had executed to Turney. Further, they assert there is no evidence that the $3,000 borrowed from the Richardsons was for the purpose of used to redeem the Roberts land from the foreclosure proceedings. We disagree. The cashier’s check for $19,424.21 made payable to Denham on September 16, 1971, (following both loans) in redemption of their property from the foreclosure sale, is marked “R. D. Turney and T. [L.] E. Richardson for Wayne Roberts.” Roberts’ individual check (apparently a receipt), also dated September 16, 1971, was made payable to Richardson and marked “Loan balance on Denham payoff of purchase price money on 10 A. Real Prop.” This coincides with the date of the Richardson loan. Therefore, as the chancellor held, the evidence is amply sufficient that the Richardsons loaned $3,000 to Roberts to pay off the Denham indebtedness and, further, the evidence is sufficiently clear to take Richardson’s claim out of the statute of frauds which the Robertses asserted as a defense to payment of the loan. As the chancellor held, Richardson is entitled to subrogation to the rights and priorities of the Denhams. The doctrine of subrogation is of equitable principles. Cowling v, Britt, 114 Ark. 175, 169 S.W. 783 (1914). Whenever one loans money to another to pay off a realty encumbrance with the understanding that the loan is for that purpose, he is entitled to be subrogated to the rights of any previous encumbrances. Stephenson v. Grant, 168 Ark. 927, 271 S.W. 974 (1925).

The Robertses, as cross-appellants, next contend that the court erred in rendering any judgment against Hazel Bishop Roberts, wife of Wayne Roberts, as to the $3,000 Richardson loan. We find merit in this contention. We do not consider, as asserted by Richardson, the issue is raised the first time on appeal. In answer to Richardson’s intervention, Mrs. Roberts, in her joint answer with her husband, raised the issue of her alleged indebtedness by a general denial. The record, as abstracted, does not appear to reflect the parties presented memorandum briefs limiting the issues. As to the evidence, a cashier’s check, previously mentioned, was remitted by Turney and Richardson “for Wayne Roberts” as payment of the Denham judgment. Richardson himself testified, as to his individual loan, “Mr. Wayne Roberts is the one who asked us [Richardson and his wife] for it and it was loaned to Mr. Wayne Roberts.”

The decree is affirmed as to Richardson’s judgment except as to Mrs. Roberts. The decree is reversed and the cause remanded on direct appeal and on Mrs. Roberts’ cross-appeal for proceedings not inconsistent with this opinion.

Affirmed in part and reversed in part.


author: Frank Holt, Justice. J. Fred Jones, Justice,

text:
    George COWGER and Bruce STEWART v. Fay MATHIS et al
    73-180
    501 S.W. 2d 212
    Opinion delivered November 13, 1973

      Donald Poe, for appellants.

      Alex G. Streett, David A. Stewart and Gordon, Gordon & Eddy, for appellees.
   Frank Holt, Justice.

The appellants, who are tax payers of the Danville school district, brought this action to contest and void a tax millage levy approved by the voters in a regular school district election held on the date fixed by law (March 15, 1973). The school directors, the superintendent of the school district, various election and county officials were made defendants (appellees). The appellants alleged numerous election irregularities including the allegation the school directors did not give notice of the election as is required by law; that, although other parties did publish a notice, such publication was an improper and inadequate instrument and not in conformity with the law requiring notice of the election in which the millage levy was voted upon. Furthermore, that the election was conducted by persons who were not properly selected as officials and who were directly interested in a favorable vote on the tax millage proposal. Also, that unqualified voters participated in the election and, therefore, all ballot boxes, including the absentee box, should be thrown out and the election voided. The trial court sustained a demurrer to the petition and refused to permit the original petition to be amended because the amendment was filed after the expiration of the statutory period of time to contest the election.

Appellants first contend for reversal that “[T]he petition as originally filed stated a cause of action for contest of an alleged tax levy and demurrer should not have been sustained.” Appellants, in support of their argument that the court erred in sustaining the demurrer to their petition, limit and ably summarize their first contention by stating:

In the first instance, the petition states acts of misfeasance and malfeasance of selecting and equipping of the required voting precincts by persons other than the election commissioners, nullifying and negating the school election to the extent that if no election had been held: and, secondly, the usurpation of the duties and responsibilities by others instead of election commissioners, designating polling precincts, and selecting of judges and clerks: thirdly, the permitting of individuals, who were not qualified voters and non-residents, to vote in the alleged absentee box, mixed, with votes in other districts, which destroyed the integrity of the box to such an extent as to throw out the entire box.

In William H. Jones v. Etheridge, 242 Ark. 907, 416 S.W. 2d 306 (1967), we said:

We have repeatedly held that a petition for contest of an election does not state a cause of action where it does not charge that any specified vote was illegally cast, or does not contain sufficient information which would identify any such illegal voter, and contain only generalities or conclusions of law to the effect that illegal votes were cast.

To the same effect is Wheeler v. Jones, 239 Ark. 455, 390 S.W.2d 129 (1965). When we apply the foregoing criteria to the case at bar, we quickly hold that appellants’ petition does not state a cause of action and was subject to appellees’ demurrer.

Appellants do not favor us with any argument that the election was invalidated because of improper or insufficient notice. Of course, an issue not argued on appeal is deemed waived. Sarkco v. Edwards Plan Service, 252 Ark. 1082, 482 S.W.2d 623 (1972).

Appellants next contend the court erred in refusing appellants’ amendment to their petition. We cannot agree. It appears undisputed that the amendment was proffered after the twenty days allowed for commencing the contest of the election. Ark. Stat. Ann. § 80-322 (Repl. 1960). It was not permissible to amend the original petition to now state a cause of action. To do so would in effect allow the appellants for the first time to assert a cause of action after the expiration of the twenty days. In. such a situation, appellants’ amendment is not permissible. Wheeler v. Jones, supra, Wilson v. Ellis, 230 Ark. 775, 324 S.W.2d 513 (1959).

Neither can we agree with appellants that the asserted delegation of duties and responsibilities by election commissioners constituted legal fraud which would invalidate the election. We do not construe appellants’ petition to assert actual fraud. Furthermore, in Wilson v. Ellis, supra, we recognized that ordinarily election regulations are mandatory before the election and directory after-wards, “and that the courts do not favor dis-franchising a legal voter because of the misconduct of another person.” A presumption attends every election that it is conducted according to the law and the presumption of validity cannot be overcome by mere charges of fraud or illegalities. Cain v. McGregor, 182 Ark. 633, 32 S.W. 2d 319 (1930).

Affirmed.

Jones, J., dissents.

J. Fred Jones, Justice,

dissenting. I do not agree with #ie majority opinion in this case. This was not an election contest in the sense that the vote by which the tax levy was declared adopted was in question. This was a case in which the legality of the entire election was questioned.

The complaint named the commissioners and the school directors and set out their statutory duties pertaining to holding a school election and specifically in regard to preparing and furnishing ballots as related to school tax levy. The complaint then alleged that other people substituted themselves for the school directors and attempted to give notice and prepare the ballot’s title contrary to the law. The complaint then alleged that the election commissioners did not select nor appoint the judges or clerks, nor perform the other duties required by law, but that other persons usurped the power and authority of the election commissioners and selected the judges and clerks and that the judges and clerks who served at said election were not judges and clerks selected by the election commissioners.

I agree that the complaint also alleges other matters directed at the validity of the votes, but it is my opinion that the complaint as a whole, sta'ted a cause of action in a taxpayers suit attacking the entire election as absolutely void and I would hold the complaint good on demurrer.


author: PER CURIAM

text:
    Harold Sherman UPTON v. John M. GRAVES, Circuit Judge
    CR 73-149
    509 S.W. 2d 823
    November 13, 1973

      Richard H. Mays, for petitioner.

      Jim Guy Tucker, Atty. Gen., for respondent.
    Petition for admission to bail.
   PER CURIAM

This is a petition for bail pending retrial of petitioner Harold Sherman Upton following the reversal of his first degree murder conviction, Upton v. State, 254 Ark. 664, 497 S.W. 2d 696. The trial court in refusing bail as in capital offense cases recognized the effect of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), on our death penalty statutes, but took the position that Act 438 of 1973 reinstated the death penalty as to felony murder cases committed prior to the effective date thereof. We disagree.

Since the authorities define an ex post facto law as one that renders an act punishable in a manner in which it was not punishable when committed, White v. Brown, 468 F. 2d 301 (9th Cir. 1972), it follows that, in view of Graham v. State, 253 Ark. 462, 486 S.W. 2d 678 and Kuehn v. State, 253 Ark. 889, 489 S.W. 2d 505, the capital felony provisions of Act 438 cannot be applied retrospectively to offenses committed prior to its adoption, Ark. Const. Art. 2 § 17.

This matter is referred back to the trial court for the fixing of bail.


author: Carleton Harris, Chief Justice.

text:
    Ewell THOMAS d/b/a THOMAS TERMITE CONTROL v. COMMITTEE “A” ARKANSAS STATE PLANT BOARD
    73-145
    501 S.W. 2d 248
    Opinion delivered November 19, 1973

      Warren E. Dupwe, for appellant.

      Jim Guy Tucker, Atty. Gen. by: Milton Lueken, Asst. Atty. Gen., for appelleee.
   Carleton Harris, Chief Justice.

On September 10, 1970, Committee “A” of the Arkansas State Plant Board conducted a hearing wherein evidence was taken on whether the license of Ewell Thomas, d/b/a Thomas Termite Control, appellant herein, should be revoked. Testimony and numerous written exhibits were presented to the committee, Mr. Thomas not appearing personally, or by counsel, at said hearing. Subsequently, on September 22, 1970, appellant was advised that his license had been revoked. On appeal to the Circuit Court of Pulaski County (Third Division), the order of revocation was affirmed, and from the judgment so entered, appellant brings this appeal. Several allegations for reversal are urged and we proceed to discuss these points.

It is first asserted that the matter should have been remanded to the State Plant Board because the license revocation by Committee “A”, “being made upon unlawful procedure was in excess of the agency’s statutory authority.” It is first argued under this point that appellant was denied the right to counsel as granted by Ark. Stat. Ann. § 5-709 (a) (Supp. 1971) because the notice sent to him by the board of the hearing made no mention of this right. We cannot agree with this contention. The statute gives one the right to appear in person or by counsel, but there is no requirement that the notice of hearing contain such information. Appellant, however, is hardly in a position to make such a contention because the record reflects that after receiving the notice from the board, he wrote a letter of reply in which he said, “I am turning all of this mess you sent me to my lawyers and they will decide what to do with it.” He added that if the board decided to revoke his license, he was “taking this to the United States Supreme Court and my Lawyers will handle this for me.” About two weeks later, appellant wrote another letter advising that his lawyers “will be asking you and your Inspectors to appear in court to answer several Questions.” Accordingly, it is very evident that Thomas was aware of his right to counsel.

It is next averred that the license was revoked by Committee “A” rather than the entire board. The record is not entirely clear ip this regard, but does re-fleet that the decision was reduced to writing with the supporting evidence, and the law, as required by Ark. Stat. Arin. § 5-710 (b), and rriade.a part of the record of the hearing as required by the Administrative Procedure Act (Act 434 of 1967, Ark. Stat. Ann. § 5-701 - 714 [Supp. 1971]). Discussion of this allegation is unnecessary since this argument was not raised in the trial court. In fact, appellant’s own pleadings filed in the Pulaski County Circuit Court appear to be contrary to his argument. On November 22, in his motion to set aside revocation of the pest control license held by Thomas, appellant states:

“The decision rendered by the Arkansas State Plant Board [our emphasis] to permanently revoke defendant’s pest control license and the entire proceedings thereon was based upon hearsay testimony and evidence and denied defendant his right to confront witnesses against him and to allow said evidence on appeal is only to repeat the violation of defendant’s constitutional rights.”

On the same date, he filed a motion for a trial by jury, stating:

“On September 11, 1970, the State Plant Board [our emphasis] permanently revoked defendant’s pest control license. To deny defendant a jury trial of that decision is to deny defendant of his livelihood without due process of law.”

It thus appears that appellant recognized that his license had been revoked by the full board, but, if otherwise, as already pointed out, we still cannot consider the argument since this matter was not raised in the trial court and cannot be raised here on appeal for the first time. Gregory v. Gordon, 243 Ark. 635, 420 S.W. 2d 825.

It is also mentioned that only three members of Committee “A” were present at the hearing, rather than the full committee of four. Of course, the three constituted a majority of the committee, but, inasmuch as this argument too was not presented to the trial court and is here raised for the first time, it likewise cannot be considered.

It is contended that the court erred in not granting appellant’s motion to exclude hearsay evidence taken at the committee hearing. Gerald King, head of the Commercial Pest Control Section of the Division of the Plant Industry, State Plant Board, and who notified appellant of the hearing, together with Martin Bracy, Inspector for the Board, investigated numerous jobs that had been performed in northeast Arkansas by Mr. Thomas, and offered in evidence various statements from persons who had entered into contracts with Thomas to have their homes treated for pest control, together with some contracts; also appellant’s monthly report form for two months was offered, and evidence presented that numerous jobs performed by Thomas had not been reported to the board as required; some checks and photostats of checks received by Thomas were also placed in evidence. We find no merit in this contention. Ark. Stat. Ann. § 5-709 (d) of the Administrative Procedure Act provides that, except where irrelevant, immaterial, or unduly repetitious, any oral or documentary evidence, not privileged, may be received if it is of a type “commonly relied upon by reasonably prudent men in the conduct of their affairs.” The bulk of the evidence certainly appears to be such as would be relied upon by reasonably prudent men in the conduct of their affairs. Let it be remembered that this was a hearing before an administrative committee which is not bound by strict rules of evidence. See Fisher v. Branscum, 243 Ark. 516, 420 S.W. 2d 882.

It is next argued that the court erred in failing to grant appellant’s motion for a jury trial. Again, we do not agree. Ark. Stat. Ann. § 5-713 (g) of the Administrative Procedure Act provides:

“The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony may be taken before the court.”

Finally, it is urged that the action taken in revoking the license of Mr. Thomas was too harsh and should be modified. Board records, as shown by the minutes of various meetings, reflect previous violations of the act, and numerous instances were included in the present charge. The statute, Ark. Stat. Ann. § 77-1807 (Supp. 1971), sets out the grounds for invalidation or non-renewal of a license and the violations charged against appellant are included in this section. We are unable to say that the finding of the board was arbitrary or capricious.

Affirmed.

      Rules and regulations of the Arkansas State Plant Board provide that Committee “A” shall consist of the board member who is head of the Department of Entomology of the University of Arkansas, the board member who represents the Arkansas. Pest Control Association, • board member* who represents the Arkansas Feed Manufacturers Association and the board member who represents the Arkansas Pesticides Association. This committee hears matters relating to the licensing of pest control operators. Committee "B” is likewise composed of four members who hear matters pertaining to different classifications.

      The investigation of Thomas related to statutes and regulations concerning (1) his failure to report work within the time and manner specified and pay inspection fees due and (2) performing work in a classification for which he did not have a license.


text:
    Gary McCLURE et al v. City Council of PARAGOULD et al
    73-133
    501 S.W. 2d 247
    Opinion delivered November 19, 1973

      L. V. Rhine, Douglas Bradley and Jon R. Coleman, for appellants.

      Robert F. Thompson and Kirsch, Cathey, Brown & Goodwin, by: Donis B. Hamilton, for appellees.
   George Rose Smith, Justice.

This action was brought by the appellants, as property owners of Water Improvement District No. 3 of Paragould, for a writ of mandamus to compel the city council of Paragould to call an election pursuant to Act 268 of 1969, for the selection of a board of directors for the improvement district. Ark. Stat. Ann. §§ 20-141 et seq. (Supp. 1971). While the suit was pending Act 268 was repealed by Act 145 of 1973. The defendants filed a motion for summary judgment on the ground that the controversy had become moot. This appeal is from an ensuing summary judgment in favor of the defendants. For reversal the appellants contend that the repealing act is unconstitutional, as an invasion of the judicial province, because it recites that the act being repealed is a local and special act.

That contention is without merit. The improvement district was creatéd in 1920. The complaint alleges that, owing to the repeal of certain statutes, there was no procedure for the election of a board of directors when Act 268 of 1969 was adopted. That act, by its terms, applied to “any municipal water improvement district, organized and in operation for more than forty years, ... in a city having a population of not less than 9,000 nor more than 12,000 according to the last regular census, and not, being operated by an elected commission or board.” Section 20-141. Section 1 of Act 145, the repealing act, reads: “That Act No. 268 of the Acts of Arkansas of 1969 being a local and special act, is hereby repealed.”

The repealing act is unquestionably constitutional. To begin with, the legislature did not declare the earlier act to be unconstitutional. It merely declared that Act 168 was a local and special act. That declaration was true, because the act did not apply to the entire state. “The exclusion of a single county from the operation of the law makes it local.” Webb v. Adams, 180 Ark. 713, 23 S.W. 2d 617 (1929). In the second place, the General Assembly “may repeal any law it enacts . . . and the motive or reason for the legislative action cannot be inquired into by the court.” Gentry v. Harrison, 194 Ark. 916, 110 S.W. 2d 497 (1937). The trial court was right in upholding Act 145 and in finding this case to be moot.

Affirmed.


text:
    Town of WRIGHTSVILLE, Ark. v. Fred R. WALTON
    73-134
    501 S.W. 2d 241
    Opinion delivered November 19, 1973

      George Howard Jr., for appellant.

      Rose, Nash, Williamson, Carroll & Clay, by: /. Richard Johnston, for appellee.
   Lyle Brown, Justice.

The Pulaski County Court granted a petition to incorpórate the Wrightsville community. Appellee Walton attacked that order by proper complaint filed in the Pulaski Circuit Court. The circuit court set aside the order of incorporation on the ground that the petition to incorporate was not signed by a majority of the inhabitants of the area, citing Ark. Stat. Ann. § 19-106 (Repl. 1968). The propriety of that interpretation is the sole issue on appeal.

The petition for incorporation was granted because the county court found that it was signed by more than twenty electors of the territory. In so doing the county court took the position that the signatures of a minimum of twenty qualified voters were the requisite number required for the granting of the petition. Ark. Stat. Ann. § 19-103 (Repl. 1968). The circuit court, in setting aside the order, held Sec. 19-106 required it to be shown that a majority of the inhabitants approved the incorporation. It is not disputed that the number of signatures (26) did not constitute a majority of the inhabitants.

By Act No. 1, March 9, 1875, the General Assembly enacted a comprehensive code covering the incorporation of communities into towns. In resolving the issue before us, three sections of that act must be considered. The pertinent parts provide:

When the inhabitants of a part of any county, not embraced within the limits of any city or incorporated town, shall desire to be organized into a city or town, they may apply by petition, in writing, signed by the inhabitants so applying, to be in number not less than twenty (20) qualified voters, to the County Court. . . . Ark. Stat. Ann. § 19-101 (Repl. 1968).
If the County Court shall be satisfied, after hearing such petition, that at least twenty (20) qualified voters reside therein, or within the limits described by said petition, and that said petition has been signed by them; .... and it shall, moreover, be deemed right and proper, in the judgment and discretion of the Court, .... then it shall make out and indorse on said petition an order, to the effect that the incorporated town as named and described in the petition may be organized, . . . Ark. Stat. Ann. § 19-103 (Repl. 1968).

Then it is provided by Ark. Stat. Ann. § 19-105 (Repl. 1968) that one month shall elapse before notice shall be given of an election of officers; during that period any interested person may make complaint to the circuit court for the purpose of preventing the organization of the proposed town. Then Ark. Stat. Ann. § 19-106 (Repl. 1968) provides:

It shall be the duty of the court or judge to hear such complaint in a summary manner . . . and if it shall appear to the satisfaction of the court or judge that the proposed incorporated town does not contain the requisite number of inhabitants, or that a majority of them have not signed the original petition, . . . then the said court or judge shall order the record of said incorporated town to be annulled.

If we adopt the position of appellant then we must write out of the statute (§ 19-106) the requirement that the majority of the inhabitants must have signed the petition. The rules of statutory interpretation require, among other things, that we must “give to the statute such a construction, if possible, as will enable the Act and all parts thereof to be effective”. Russell v. Cockrill, Judge, 211 Ark. 123, 199 S.W. 2d 584 (1947). To the same effect see Compton v. State, 102 Ark. 213, 1443 S.W. 897 (1911). Compton quotes from 2 Lewis’ Sutherland, Stat. Con. (2 ed.) § 368: “[A] statute must receive such reasonable construction as will, if possible, make all its parts harmonize with each other, and render them con-sistant with its scope and object.”

Appellant argues that the phrase in § 19-106 “or that a majority of them have not signed the original petition” refers to the term “requisite number of inhabitants”. Sec. 19-103 says the required number of inhabitants of the proposed town is twenty qualified electors. If we accept appellant’s argument then § 19-106 would only require die signatures of eleven qualified electors. Such an interpretation is not in harmony with the provisions of § 19-101 and § 19-103.

We have no way of knowing why the legislature provided that articles of incorporation can be granted by the county court upon petition of twenty qualified electors and then provides that if complaint is timely filed in circuit court, the signatures of a majority of the inhabitants would have to be shown. Nevertheless, we are unable to arrive at any conclusion other than § 19-106 requires the signatures of a majority of the inhabitants. We would point out that the proceeding in circuit court is not an appeal from the county court. The jurisdiction of the circuit court is invoked by the filing of a complaint which, of course, constitutes an entirely new preceeding.

Affirmed.


text:
    SECURITY INSURANCE COMPANY of HARTFORD v. William Maurice OWEN and Maurice OWEN
    73-101
    501 S.W. 2d 229
    Opinion delivered November 19, 1973

      Bridges, Young, Matthews & Davis, for appellant.

      Jones, Matthews & Tolson, for appellees.
   John A. Fogleman, Justice.

This is the second appeal of this case. In the first, Security Insurance Company of Hartford v. Owen, 252 Ark. 720, 480 S.W.2d 558 (1972), we reversed a judgment against appellant because of error in submitting to the jury the question of construction of one of the insurance policies involved. The case is a suit by William Maurice Owen and his father Maurice Owen against Security Insurance Company of Hartford, the insurer of W. H. Marks on two policies. One of them is an automobile liability policy with a limit of $50,000. The other is a Farmer’s Comprehensive Personal Liability Policy with a limit of $25,000. The question at issue is which policy applies.

Owen, then a minor, was injured on August 7, 1965, while guiding a tractor belonging to Marks and being towed by a pickup driven by Marks. The purpose of the trip was to take the tractor and equipment to a duck hunting club in which Marks was interested. In a suit brought by Maurice Owen in behalf of himself and his son, a judgment for $34,250 was recovered. Appellant provided the defense in that suit, having acknowledged coverage under the comprehensive personal policy but denying coverage under the automobile policy. Appellant then paid the amount of its comprehensive policy limits but continued to deny liability under the automobile policy on the basis of a clause excluding employees of Marks from coverage. This suit was then brought against appellant by appellees to recover the balance of $9,250, interest, statutory penalty and attorney’s fees, as a sub-rogee of Marks, pursuant to Ark. Stat. Ann. § 66-4001 (Repl. 1966). Of course, appellees asserted that the automobile policy provided coverage to Marks. Appellant has consistently maintained its position that the exclusion in that policy applied. Obviously, Marks has not paid any part of the judgment.

After the reversal of the judgment on the first appeal, a second trial, presided over by a special circuit judge because of illness of the regular judge, resulted in a jury verdict favorable to appellant. Timely motion for new trial was hied. It was heard and granted by the regular circuit judge, who had the transcript of the proceedings before him. This appeal was taken from the order granting a new trial. Appellant contends that this order constituted an abuse of the circuit judge’s discretion because it was premised upon an error of law.

The grounds for the motion were allegations of error in the admission into evidence of two pretrial statements made by W. H. Marks, a witness but not a party to this action, and error in the failure of the trial judge to admonish the jury that such statements were to be considered by them only as bearing upon the credibility of the witness. The new trial was granted solely upon the finding of the regular circuit judge that there was error in the admission of the statements. .

Error of law occurring at the trial and objected to by the moving party is one of the statutory grounds for a new trial. The trial court has a broad latitude of discretion in the granting of new trials. This discretion is not limited to cases where sufficiency of the evidence is the ground for the motion. See, e.g., Heil v. Roe, 253 Ark. 139, 484 S.W.2d 889; Millers Casualty Insurance Co. v. Holbert, 253 Ark. 69, 484 S.W.2d 528; Hardin v. Pennington, 240 Ark. 1000, 403 S.W.2d 71; Thomas v. Arnold, 192 Ark. 1127, 96 S.W.2d 1108. Of course, the latitude of the trial judge’s discretion is much broader where the question is whether a jury verdict is supported by a preponderance of the evidence, because of the peculiar advantage of his position in evaluating all the factors bearing upon it. In determining questions as to errors of law, his position is not of the same superiority to that of the appellate court. Still, the action of the trial judge on a motion for new trial upon a statutory ground should not be reversed in the absence of manifest abuse of his discretion. Law v. Collins, 242 Ark. 83, 411 S.W.2d 877; Blackwood v. Eads, 98 Ark. 304, 135 S.W. 922. See also, Millers Casualty Ins. Co. v. Holbert, supra; Hardin v. Pennington, supra; Thomas v. Arnold, supra. The showing that this discretion was abused must be much stronger when a new trial has been granted than when it is denied. Heil v. Roe, supra; Worth James Construction Co. v. Herring, 242 Ark. 156, 412 S.W.2d 838; Blackwood v. Eads, supra.

The party who was the beneficiary of the verdict set aside by the granting of a new trial has much less basis for a claim of prejudice than does an unsuccessful movant for a new trial. In Porter v. Doe, 10 Ark. 186, the trial court, after a verdict for the defendants, granted the plaintiffs a new trial which resulted in a verdict for the plaintiffs. The defendants alleged that the new trial was improperly granted, apparently upon the basis that the verdict was not contrary to the evidence or instructions. This court said that since the verdict was in favor of the defendants they could not complain of either the misdirections of the judge, improper evidence admitted or a like cause, adding:

A verdict was all that they could ask, and when it was set aside they could only complain that the Circuit Court had exercised its discretion to their prejudice. The Supreme Court has already extended its revising control over the discretionary powers of the Circuit Court as far as the most liberal practice will warrant upon the subject of new trials. This is a new case and must be predicated solely upon the ground of abuse of the discretionary power of the Circuit Court. Whether this power was exercised prudently or not there was offered the defendants another opportunity for presenting their defense, and if they had injustice done them in that trial, this court is open to hear their complaint.

In Heil v. Roe, we said:

In Blackwood v. Eads, 98 Ark. 304, 135 S.W. 922, we pointed out that this court will much more reluctantly reverse the final judgment in a cause for error in granting than for error in refusing a new trial. Such reluctance is based on sound and practical reasoning. In the first place any competent judge is simply not as likely to find and admit error where none exists as he is to overlook or fail to recognize or accept error where it does exist. In the second place, final justice may be totally denied by the wrongful refusal of a new trial whereas final justice should be only postponed by the wrongful granting of a new trial.

Manifest abuse of discretion in granting a new trial means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Blackwood v. Eads, supra. Under the circumstances prevailing here we are unable to say that the circuit judge exercised his discretion improvidently, thoughtlessly or without due consideration.

Marks testified in the first trial of this case. He was subpoenaed and called to testify at the second trial by appellant. The issue in the case was whether young Owen was an employee of Marks. Appellees’ cause of action, when the judgment against Marks remained unsatisfied for 30 days, was by statutory subrogation to the right of Marks under the policy. Ark. Stat. Ann. § 66-4001. Obviously, the interest of Marks in a favorable result in this litigation was identical to that of the Owens. Even though Marks was not a party to the action, or, strictly speaking, in privity with either of the Owens, a judgment unfavorable to the Owens would likely be binding upon Marks in any action he might bring against appellant, particularly when he could have asked to be made a party and his knowledge of the pendency of the action arose from his having been called as a witness on the critical issue. See Carrigan v. Carrigan, 218 Ark. 398, 236 S.W. 2d 579; Roberson v. Hamilton, 240 Ark. 898, 405 S.W.2d 253; Hill v. Village Creek Drainage District, 215 Ark. 1, 219 S.W.2d 635; Moreland v. Meade, 162 Md. 95, 159 A. 101 (1932); Bacon v. Gardner, 38 Wash. 2d 299, 229 P.2d 523 (1951); Talbot v. Quaker State Oil Refining Co., 104 F.2d 967 (3rd Cir. 1939); Terry and Wright of Kentucky v. Crick, 418 S.W.2d 217 (Ky. 1967); 50 C.J.S. 322, Judgments, § 786. By the same token, a judgment against appellant would certainly relieve Marks from the payment of the judgment against him.

In this situation, the testimony of Marks and young Owen was critical because they appear to be the only ones who can actually shed any light on the existence of an employer-employee relationship. Appellant had promptly made inquiries of both soon after the wreck occurred. Young Owen testified Marks said nothing about paying him for steering the tractor, that he had not done any other work for Marks or been to the duck camp during the year in which he was injured, that he had never been paid any money by Marks, and that Marks had never offered to make any payment to him. On cross-examination, he admitted making a statement to George Sims, an insurance adjuster, that he was working for Marks at the time of his injury and that Marks was going to pay him. The statement was introduced. It contained a clause stating, in effect, that Owen was an occasional employee and that Marks paid him $7.00 per day for eight hours’ work. Owen explained the statement by saying he did not tell the adjuster the things contained in it. He said that, at the time, he had been “doped up” for his fourth surgical procedure due to his injury and that Sims read the content of the statement, and, after each sentence, asked him if he agreed. Owen attributed his affirmative answers and his signing the statement to the influence of drugs. He admitted that all of the statement except those parts pertaining to the employment relationship was essentially correct. Appellees’ case on the issue rested on this testimony.

Marks had also signed statements pertaining to the employment status of young Owen. One of them was dated August 11,-1965, and the other December 20, 1967. Marks testified, when called by appellant, in the second trial, that his regular employee who was scheduled to drive the tractor did not show up on the morning the tractor was to be taken to the duck club and that young Owen took his place. He stated he would have paid the regular employee and doubtless would have paid young Owen, because he had-paid others who had-cleaned up a levee with a chain saw. He could not recall whether he had paid Owen anything, but his regular rate of pay for the type of work done was $7.00 per day. He then stated he intended to pay Owen had it not been for the wreck, but probably would not have paid him at the rate of $7.00 per day.

After Marks- had given this testimony, he stated he could not recall what he might have told appellant’s counsel earlier, but admitted he had previously given a statement to the insurance adjuster, George Sims. Both statements were then offered and admitted into evidence over appellees’ objection. These objections included the following: the statement was hearsay and was taken without opportunity for cross-examination, and that the testimony of a witness cannot be bolstered by showing his out-of-court statements. The statement was offered by appellant for impeachment without any suggestion that it might have probative value as substantive evidence. No limiting or cautiQnary instruction was requested or given. Marks admitted, during his testimony, that at the time of signing the statements he had no idea that the employment status of young Owen had any bearing- on the extent of his insurance coverage and that he showed the insurance policies to the elder Owen and the attorney for the Owens at a later date. The first statement contained the following sentence: “Owen works for me by the day and I pay him $7.00 per day for average days.” After the statement was introduced, Marks admitted having told the adjuster this. The second statement was to the effect that Owen had worked for Marks on occasion, usually cleaning up, cutting weeds, working on the club house, and had been paid from Marks’ pocket, but that Marks did not think that the youth’s name had ever appeared on his payroll.

It was shown on cross-examination of Marks that, during the first trial, he had testified he did not pay young Owen anything, had never paid him anything, he did not think he ever discussed paying him anything and had never paid Owen anything out of his pocket. On redirect examination it was shown that he had also stated, at the first trial, that it was possible he had paid young Owen something out of his pocket and that he had admitted telling the insurance adjuster on August 11, 1965, that Owen worked for him part-time and that he paid Owen $7.00 per day.

Appellant now argues that the statements were admissible, under the peculiar circumstances existing here, and particularly that the identity of interest of Marks and the Owens made the statements admissible, so that, in any event, there could be no error in admitting them, relying upon Sherman v. Mountaire Poultry Co., 243 Ark. 301, 419 S.W. 2d 619; Smith v. Clark, 219 Ark. 751, 244 S.W. 2d 776; Home Insurance Co. v. Allied Telephone Co., 246 Ark. 1095, 442 S.W. 2d 211, among other authorities. There is no indication that this latter argument, which is presented rather forcefully and persuasively here, has ever been presented to the trial court. If we agreed with appellant and our agreement resulted in affirmance of the trial court, this fact would be immaterial. Lisko v. Uhren, 130 Ark. 111, 196 S.W. 816, 88 C.J.S. 189, Trial, § 82. But we cannot say this matter is unimportant under these conditions. Appellees had no opportunity to object to the statements as substantive evidence or to take counter measures. Both statements by Marks were in evidence in the first trial, and Marks’ testimony as outlined in our opinion on the first appeal does not materially differ from that given at the second trial. However, the recollection of the witness may have been hazier on this occasion. Similar objections to the introduction of the statements were then made by appellees but withdrawn.

Appellant’s argument that the statements were admissible for impeachment purposes would be compelling had Marks not been used as a witness by appellant in an effort to prove the critical issue. It does not appear that appellant claimed to have been surprised by the testimony elicited, and appellant does not argue that it was entrapped into using Marks as a witness. The requirement of surprise before a party may impeach a witness called by him has been criticized. See IIIA Wigmore on Evidence, Chadbourne Revision, 981, § 905 n 6; Diffey, Impeaching One’s Own Witness in Arkansas, 8 Law School Bui. 34, 36. This criticism would not justify a change in our construction of the statute, but the statute has not been so applied in the circumstances which prevailed here. We are not necessarily bound to extend the requirement of surprise as a condition precedent to the situation that existed when Marks testified, or to that which may prevail when, and if, he testifies again. A recognized exception to the -rule against impeachment of one’s own witness exists when it appears that the witness is hostile. See 58 Am. Jur. 444, Witnesses, § 799; Annot. 21 L.R.A. 418, 423 (1893). The determination whether a witness is hostile lies within the sound judicial discretion of the trial judge, in the exercise of which he should be accorded great latitude and may consider, among other things, such matters as the extent of £he deviation of the testimony from previous statements by the witness, and inferences that the witness is attempting to suppress the truth, drawn from his testimony and conduct. Lerma v. United States, 387 F. 2d 187 (8th Cir. 1968), cert. denied, 391 U.S. 907, 88 S. Ct. 1658, 20 L. Ed. 2d 421; State v. Hutnik, 39 Wis. 2d 754, 159 N.W. 2d 733 (1968); State v. Davis, 400 S.W. 2d 141 (Mo. 1966), cert. denied, 385 U.S. 872, 87 S. Ct. 142, 17 L. Ed. 2d 99; Fox v. Schaeffer, 131 Conn. 439, 41 A. 2d 46, 157 A.L.R. 132 (1944).

The question of admissibility of the evidence is certainly not free from doubt, and much lies in the discretion of the trial judge. If we could say with assurance that the statements were admissible in the trial, either for impeachment of appellant’s own witness or as substantive evidence, we might be able to say that there was an abuse of the trial court’s discretion in granting a new trial. Marks’ interest in the case may have been such as to render him a hostile or adverse witness, in which case he might properly be impeached by the party, calling him. It is certain that after young Owen testified as he did, appellant had little choice in the matter of calling Marks as a witness. Even for impeachment purposes, there are elements other than hostility of the witness calling for the exercise of judicial discretion in determining admissibility. Among these is the matter of prejudice of his statements to the party calling him.

Since the propriety of admitting the evidence is doubtful, the doubt should be resolved in favor of the granting of a new trial. 58 Am. Jur. 327, New Trial, § 121; Marks v. Haas, 166 Iowa 340, 147 N.W. 740, Ann. Cas. 1917D 543 (1914); Steensland v. Iowa-Illinois Gas & Electric Co., 242 Iowa 534, 47 N.W. 2d 162 (1951). We see little difference in a case such as this and the cases where we sustained the granting of a new trial because the trial judge did not feel that his instructions to the jury had properly presented the issues to the jury. No sound reason exists for a different rule or procedure where admissibility of evidence, rather than jury instructions, is concerned, and the error is not manifest.

Ordinarily we would undertake to resolve the questions posed which are likely to arise upon a new trial, but cannot do so in this case. The statements of Marks are not wholly consistent and his recollection will not likely improve with time, so there is no way to anticipate exactly what his testimony might be in another trial. Nor can we predict whether the statements will be offered in evidence, the time or state of the record when they may be offered, the circumstances or conditions which will prevail when they are offered, or the purpose for which the statements may be offered. Consequently, we are unable to satisfactorily answer the questions which might arise. Since these matters are subject to so much speculation, we are not called upon to resolve questions of admissibility which may arise on a new trial.

We do not consider that the regular judge’s discretion to grant a new trial was limited in this case by the fact that he did not preside at the trial, particularly in view of the fact that in considering the motion he had the transcript of the trial before him. We find no merit in appellant’s argument that the mere showing, on cross-examination, that Marks had given testimony at the first trial different from his pretrial statements and perhaps different from his testimony on direct examination by appellant constituted a waiver of the evidentiary question..

Since we find no abuse of discretion, we affirm the judgment.

Byrd, J., dissents.

      The failure to give such instruction is not reversible error in the absence of a request. Perry v. State, 255 Ark. 378, 500 S.W. 2d 387. Where the testimony is admitted for impeachment purposes only, it seems that the better practice would be to give a limiting instruction.


text:
    William E. MOSLEY v. STATE of Arkansas
    CR 73-106
    501 S.W. 2d 225
    Opinion delivered November 19, 1973
    No brief for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   J. Fred Jones, Justice.

William E. Mosley was convicted of the crime of voluntary manslaughter in connection with the death of Garland Little and was sentenced to seven years in the penitentiary. Mosley has designated the entire record on appeal to this court but has filed no abstract and brief.

The Attorney General has filed a brief in support of the state’s motion to affirm for want of error appearing on the face of the record, and has filed an abstract of the record in accordance with rule 11 (f) of this court. We have examined the entire record and find no error that would call for a reversal in this case.

The homicide in this case grew out of a free-for-all brawl in a combination bar and pool hall in which the appellant Mosley and several other people were involved. It appears that the brawl started wnen a barmaid tripped over a wire behind the bar and her boyfriend, who was present, thought another one of the patrons had pushed her. The record discloses that practically all of the patrons got into the act of fighting each other with fists, bar stools and pool cues.

Donald Thacker testified that he was not involved in the fight but was present and observed all of it from behind the bar. He said people were swinging pool sticks and bar stools and that he saw Garland Little on the floor getting beat up. He said that Little was crippled and as he got up from a bar stool where he was sitting, he pulled Mosley’s hair. He said Jimmy Burris struck Little in the side with a bar stool and knocked him down. He said that Mosley then seemed to go berserk and started beating Little on the chest and head with a pool cue. He said Little remained on the floor while Mosley stood over him and beat him with the pool cue. He said he observed Lloyd Lonberger trying to get Mosley to stop beating Little, and that the fight was all over when Mosley did finally stop beating Little with the pool cue. He said he did not see Little get to his feet again after the beating. He said that one of Little’s eyes was hanging out of its socket; that his other eye was badly swollen and he was unable to talk when the ambulance came for him. Little died in a hospital from subdural hematoma approximately ten days following the beating.

We are of the opinion that there was ample evidence to go to the jury in this case and that the evidence is sufficient to sustain the verdict and the judgment rendered thereon. Finding no error in the record, the judgment is affirmed.

Affirmed.


text:
    Kate BUFORD (Dearing) et al v. Evia Lee DEARING, Calvin DEARING, and Vera DEARING
    73-143
    500 S.W. 2d 931

      Opinion delivered November 19, 1973
    ■

      Shaver & Shaver, for appellants.

      Giles Dearing, for appellees.
   Frank Holt, Justice.

Appellants, the widow and heirs of Buford Dearing, brought this declaratory judgment action based on their contention that the written provision in a deed created a life estate in Evia Lee Dear-ing with a remainder interest which vested in Buford Dearing at the time the deed was executed. The cause was submitted upon the complaint, the answer, a stipulation of facts, and a deposition together with the briefs of the parties. The chancellor denied appellants’ contention and dismissed the cause for want of equity; Appellants contend bn appeal that it was the intention of B. F. Dearing to convey to Evia Lee Dearing a life-estate in the 40 acres of land involved in this suit and a vested remainder in fee to Buford Dearing when he inserted a written provision in the deed;

'In 1937, B. F. Dearing, now■ deceased, executed a printed form warranty deed conveying the land in question to his daughter. The granting clause of the deed conveyed a fee simple title to her. It read: , , .

That I, B. F. Dearing, for and in consideration of One and 00/100 hereby Grant, Bargain, Sell and Convey unto the said Evia Lee Dearing and unto her heirs and assigns forever, the following lands ....

The description clause was followed by this provision which was handwritten by someone for the grantor:

This is my will, and the herein described land is to be conveyed to my son, Buford Dearing, at the death of Evia Lee Dearing.

The habendum clause warranted a fee simple title as to the grantee. The grantor, being unable to write, affixed his signature by his mark (x), which was witnessed by a Mrs. Horton.

Buford Dearing died intestate in August, 1968. In December, 1968, Evia Lee Dearing conveyed the property by warranty deed to appellees, Calvin and Vera Dearing.

We recognize that we give primary consideration to the intent of the grantor in interpreting written instruments. Aluminum Co. of America v. Lipke, 230 Ark. 72, 320 S.W. 2d 751 (1959), Carter Oil Co. v. Weil, 209 Ark. 653, 192 S.W. 2d 215 (1946), Wallace v. Wallace, 179 Ark. 30, 13 S.W. 2d 810 (1929). We also recognize that a preference is given to the written over the printed provisions of a deed when in conflict. Lawless v. Caddo River Lumber Co., 145 Ark. 132, 223 S.W. 395 (1920).

However, in the instant case, we need not necessarily venture into the realm of the grantor’s intent. The written provision in the deed purports to be a will. The writing obviously cannot function as a will since it is improperly witnessed. Graves v. Bowles, 193 Ark. 546, 101 S.W. 2d 176 (1937). The defective testamentary provision, which is ambiguous and not a clear limitation, should not be construed as part of the deed. The written provision is void since it is repugnant to the deed which clearly conveyed a fee simple title. The language is surplusage and merely a legallv ineffective wish. Therefore, Evia Lee’s fee simple title was unaltered by the written provision and consequently her conveyance to Calvin and Vera Dearing by warranty deed properly conveyed to them a fee simple title.

Affirmed.