text:
    Hoyt BROWN v. DIAMOND G. RANCH, INC. et al
    5-5498
    464 S. W. 2d 77
    Opinion delivered March 8, 1971

      Garner & Parker, for appellant.

      Jones, Gilbreath & Jones, for appellees.
   George Rose Smith, Justice.

This is an action for personal injuries brought by the appellant, Hoyt Brown, against the three appellees, Diamond G. Ranch, Inc., and its officers or agents, Mr. and Mrs. Austin Gatlin. The plaintiff alleged that he was hurt when his truck struck a horse which the defendants had negligently allowed to run at large upon the public highway. Upon trial the jury returned a verdict in favor of the defendants.

Brown filed a motion for a new trial, asserting that Raymond Beshears, who served as foreman of the jury, had, on voir dire, wrongfully concealed his involvement in a similar situation in which the claimant had been represented by Brown’s attorneys, the firm of Garner & Parker. After a hearing the trial judge denied the motion for a new trial, finding that “Mr. Beshears openly answered the questions propounded to him by the court, and he was not guilty of concealment.”

While the jury was being empaneled two of the veniremen, Boone and Beshears, gave affirmative answers to the court’s inquiries about the jurors’ possible connection with similar incidents. After the court had explained the nature of the lawsuit being tried, the interrogation of the panel proceeded as follows:

The Court: First, let me ask you, have any of you ever owned horses, animals or stock which the law says must be enclosed . . .? Have you owned any stock that has gotten on the highway, and you’ve either been sued or claim for damages against you?
Ward Boone: I had some cattle get on the highway at one time but it was settled out of court. There was no damages paid either way.
The Court: How long ago was that, Mr. Boone?
Mr. Boone: About twelve years ago.
The Court: Did that happen in this area?
Mr. Boone: Yes, sir, just five miles west of here.
The Court: Were any personal injuries involved?
Mr. Boone: No, sir.
* # #
The Court: Do you feel that the fact that you had this experience, would that tend to influence you one way or another if accepted as- a juror in this case?
Mr. Boone: No, sir, I don’t think it would.
.V. . W. -V. *?r *J{* TV
The Court: There is another gentleman, Mr. Raymond Beshears.
Mr. Beshears: I had the same experience as Mr. Boone except there wasn’t any lawsuit.
The Court: There wasn’t any lawsuit. Were there any personal injuries involved?
Mr. Beshears: No, sir.
The Court: How long ago, Mr. Beshears?
Mr. Beshears: A couple of years, I guess. Year and a half.
The Court: Do you feel that this experience would influence you if accepted as a juror in the case?
Mr. Beshears: No, sir.

At the hearing on the motion for a new trial it was shown that in 1967 Douglas Griffin, driving on the highway, ran into a pony owned by Beshears. Griffin’s insurance company paid his property damage and turned the subrogation claim over to Garner & Parker. A lawyer who was then associated with the firm wrote to Beshears, asking him to get in touch with the firm about Griffin’s claim for $519.15. Beshears turned the letter over to his own insurance company, which eventually settled the claim by the payment of $100. Beshears took no part in the negotiations and had nothing to do with the settlement. Quite the contrary, Beshears’s insurer, in making the settlement, refused to even ask Beshears for a release, because “he might later feel that we had misinformed him in some manner regarding his claim for damages to his animal.”

The trial court, as we have said, expressly found that Beshears openly answered the questions on voir dire and was not guilty of concealment. Brown’s attorney did not see fit to ask Beshears any additional questions about the earlier incident. There is no showing that Beshears remembered that the letter to him had been signed by Garner & Parker; in fact, Beshears was not called as a witness at the hearing upon the motion for a new trial. It does affirmatively appear that Beshears had no knowledge of the terms of the settlement that was eventually reached between the two insurance companies. Upon the record we find no abuse of discretion on the part of the trial judge in refusing to grant a new trial. Oliver v. Paul N. Howard Co., 249 Ark. 427, 460 S. W. 2d 91.

Affirmed.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Herschel EARP et al v. A. G. “Harrison” EARP
    5-5465
    464 S. W. 2d 70
    Opinion delivered March 8, 1971

      Rhine ir Rhine and George Edward Thiel, for appellants.

      Kirsch, Cathey & Brown, for appellee.
   Lyle Brown, Justice.

Appellee A. G. “Harrison” Earp claimed to be the son of M. C. “Harrison” Earp. The claim was denied by all other possible heirs of M. C. “Harrison” Earp, who died intestate. Appellee initiated this action to establish his heirship. The chancellor ruled in A. G.’s favor. The points for reversal will be listed as they are discussed.

M. C. “Harrison” Earp married Ida Smelser on July 4, 1919. At the time of that marriage he had seven children by a prior marriage, and Ida had five children born of her first marriage. The husband and wife lived together with their children until the fall of 1919 at which time they separated, and Ida filed for divorce. “Harrison” answered and cross-complained, alleging fraud on the part of Ida in that she was allegedly pregnant (at the time of marriage) by a man other than the defendant, “Harrison.” A child was born to Ida on February 28, 1920, and the decree annulling the marriage was entered April 12, 1920. A. G. “Harrison” Earp, appellee, contends that he is the child born of the marriage between M. C. “Harrison” Earp and Ida Smelser Earp.

After the divorce from Ida, M. C. “Harrison” Earp married Bettie Earp who lived with him as his wife until his death in 1942. No children were born of this marriage. Bettie Earp was appointed administratrix of the estate of the intestate. When a petition to assign dower and homestead was filed, appellee intervened merely to note his claim as an heir at law of M. C. “Harrison” Earp. With respect to that intervention the probate court said:

The court finds that it is not necessary to take any action on the intervention of A. G. Earp herein for the reason that said intervenor merely notes his claim that he is an heir at law of M. C. Earp, Deceased, and does not controvert the right of Mrs. Bettie Earp to homestead or dower as herein awarded.

No determination of heirship was ever made in the probate court proceedings.

Bettie Earp died on May 30, 1969. Her homestead and dower rights being thus extinguished, the estate of M. C. “Harrison” Earp passed to his heirs at law. A. G. “Harrison” Earp filed a complaint on August 13, 1969, against the children of M. C. “Harrison” Earp by his first marriage and their heirs. The complaint alleged that A. G. “Harrison” Earp was also an heir of M. C. “Harrison” Earp and prayed a partition of the land in question. The chancellor found for appellee and granted him an undivided one-eighth interest in the lands. From the order of the chancellor, the heirs of M. C. “Harrison” Earp by his first marriage bring this appeal.

Appellants rely on three points for reversal. The first point is the contention that the lower court erred in making a finding of fact that A. G. “Harrison” Earp was the legitimate son and one of the heirs at law of M. C. “Harrison” Earp. It is clear that if A. G. “Harrison” Earp was in fact the child born to Ida Earp on February 28, 1920, before the marriage was dissolved by an annulment on April 20, 1920, then A. G. “Harrison” Earp is presumptively an heir of M. C. “Harrison” Earp and entitled to inherit along with the other children of the intestate. Ark. Stat. Ann. § 61-104 (1947), (since replaced by § 61-141) was in effect in 1942 when the lands passed to the heirs subject to the dower and homestead rights of the widow. It provided: “The issue of all marriages deemed null in law, of dissolved by divorce, shall be deemed and considered as legitimate.” In Morrison, Admx. v. Nicks, 211 Ark. 261, 200 S. W. 2d 100 (1947), this court said: “There is a presumption, said to be one of the strongest known to the law, that children born to a couple lawfully married are the children of the husband, and that this presumption continues until overcome by the clearest evidence that the husband was impotent or without access to his wife, and the controlling question is whether that proof was made.” See also Jacobs v. Jacobs, infra.

The following witnesses testified that A. G. “Harrison” Earp was the child born on February 28, 1920, before the annulment of the marriage between M. C. “Harrison” Earp and Ida Earp: A. G. “Harrison” Earp, appellee; Mrs. Aubra Kappleman, half sister to the appellee; Mrs. Sybil Williams, cousin of appellee; Luther Smelser, half brother to appellee; and Ray Breckenridge, a neighbor of M. C. “Harrison” Earp when appellee was born. None of the appellants testified. The only evidence presented by them to prove that appellee was not the child who was born on February 28, 1920, was an entry in a school record for the year 1936 when appellee was in the seventh grade, and appellee’s application for •& marriage license. The entry on the school record was made by someone other than appellee and indicated that appellee was born February 28, 1921. The application for the marriage license was dated March 13, 1944, and indicated that appellee was twenty-three years old at that time. The entries were made by someone other than appellee, except for his signature. (1944 less twenty-three is 1921. Appellee should have been twenty-four on March 13, 1944, according to his testimony.) It should be noted, however, that there is no place on the application for the date of birth of the appellee. The form merely asks for the age of the parties applying for the license, the purpose of the questions, no doubt, being to insure that they have reached the age of majority.

Appellants contend that the annulment decree which was offered into evidence was res judicata as to the question of the legitimacy, or putting it the way appellants expressed it, “This annulment decree was not plead nor was it argued as being res judicata against this appellee, but was plead and introduced in evidence to establish a finding of fact made by the lower court which should be binding on that court.” Also, appellants say, “This finding of the lower court in 1920 removed this case from the application of Ark. Stat. § 61-104 supra and this appellee can claim no rights under that statute.”

The case of Shatford v. Shatford, 214 Ark. 612, 217 S. W. 2d 917 (1949), answers the contention of appellants. In the Shatford case the husband was seeking an annulment from his wife due to fraud. He alleged that she was pregnant with child by another man. The chancellor granted the annulment, and the wife appealed. The appeallant contended that evidence by the husband and other witnesses as to the fact that he had never had sexual intercourse with the wife was inadmissible since it tended to bastardize the child born after the marriage. The Shatford court held that the testimony was admissible in the annulment proceeding but would not be res judicata in a subsequent bastardy or heirship proceeding.

Appellants would cast the burden of proving legitimacy on appellee. That contention is answered in Jacobs v. Jacobs, 146 Ark. 45, 225 S. W. 22 (1920):

The decided weight of authority is that every child born during wedlock is rightly presumed to be the offspring of the husband. The presumption must be adhered to for the protection of the rights of those who are attempted to be bastardized without any fault on their part, to preserve the peace of families and to promote the interest of society.

The presumption of legitimacy means that the parties contesting the legitimacy of a child must bear the burden of proof and must show by sufficient evidence that the husband was impotent or entirely absent at the period in which the child in the course of nature was begotten. Kennedy v. State, 117 Ark. 113, 173 S. W. 842 (1915).

Thus it would appear that the preponderance of the evidence is with the findings of the chancellor that appellee was the child born on February 28, 1920, and a lawful heir of the intestate, M. C. “Harrison” Earp. Appellants made no showing that M. C. “Harrison” Earp was impotent or without access to Ida. On the other hand, appellee made a showing by the testimony of several witnesses that the husband and wife slept together during the summer of 1919 after their marriage.

The second contention of appellants is that the lower court erred in failing to recognize the probate proceedings in connection with the administration of the M. C. “Harrison” Earp estate as being res judicata against A. G. “Harrison” Earp to any interest alleged by him. The simple answer to that contention is that A. G. “Harrison” Earp did all he could do to protect his interests in the estate; he intervened in the proceedings before the final decree which awarded homestead and dower to the widow of the intestate, and he filed this action for partition within two and one-half months after the death of the widow. We have previously quoted that portion of the closing order which noted appellee’s intervention.

The third and final point which appellants rely on is the contention that the statute of limitations had run on the appellee. Four dates are suggested as starting points for the statute to begin to run: April 12, 1920, the date of the decree of annulment; the date of appellee’s twenty-first birthday; the date of the death of M. C. “Harrison” Earp, September 1, 1942; and January 4, 1944, the date the probate court fixed dower and homestead and divided the personal property. Obviously, the first two dates cannot be considered since M. C. “Harrison” Earp did not die until 1942. As to the second two dates, appellee did appear in the probate proceeding assigning dower and homestead to the widow for the purpose of noting the fact of his claim as an heir at law of the decedent. The probate court found it was unnecessary to determine his rights in that proceeding since the only issue was related to the dower and homestead claims of the widow. The widow’s possession under dower and homestead rights was not adverse to the plaintiff or the other heirs. Head et ux v. Farnum, 244 Ark. 367, 425 S. W. 2d 303 (1968). The evidence shows that the widow retained possession of the land in question until her death.

Affirmed.


text:
    W. G. WOOLF et al v. D. Willard MADISON et ux
    5-5481
    464 S. W. 2d 74
    Opinion delivered March 8, 1971

      Lee Ward, for appellants.

      Gus R. Camp, for appellees.
   Lyle Brown, Justice.

The appellants are the widow and nine of the ten children of Edgar Woolf, who died intestate in 1949. The appellees are the tenth child, Martha Madison, and her husband, Willard Madison. Appellants brought this action to cancel a deed to the Edgar Woolf homeplace wherein appellees were the grantees. Appellants asserted that one of the considerations for the deed was the agreement by appellees to care for the mother for the remainder of her life. Appellants cóhtéhded the responsibility was violated. The chancellor held that appellants did not meet the burden of proof necessary to support their allegations. The appellants here contend that the findings of the chancellor “were against the clear preponderance of the evidence.”

The Woolf homestead, the subject of this litigation, consisted of 131.5 acres in Clay County. It was not held as an estate by the entirety. Shortly after the death of Edgar Woolf the widow and nine of the children deeded the lands to the tenth child, Willard Woolf. The deed recited a consideration of one dollar “and other good and valuable consideration.” It reserved to the widow the main dwelling “for her sole use during the term of her natural life.” On the same date Willard executed a note and mortgage in favor of the widow for $7,000, payable in annual installments of $500. In addition to the recited considerations there was an oral agreement between grantors and grantee that the latter would care for the mother during the remainder of her life.

Willard lived on the property and cared for his mother for about two years. He did not make any of the annual note payments. Willard wanted to leave the farm to attend college. With the consent of his mother he deeded the lands to a sister and her husband, Mr. and Mrs. Lloyd Kendrick. The Kendricks executed a note and mortgage to the mother for $10,000, payable in annual installments of $500. The use of the home by the mother was reserved in the deed. The Kendricks testified that they accepted the deed with the same verbal agreement to care for the mother.

The Kendricks decided, after three years, that the farming operation was not profitable. They arranged with appellees to take the land and assume the mortgage. That deed also reserved to the mother the exclusive use of the main house on the farm. Kendrick testified that he discussed with appellees the understanding among all the children that the grantees would be obligated to care for the mother.

In their answer, and in their brief, appellees contend there was no agreement on their part to care for the mother. Although the evidence does not reflect precisely the items of responsibilities contained in the obligations, we think the evidence is clear, cogent, and convincing that the ownership of the lands carried with it the condition that the owners did have limited obligations of care.

Willard Woolf was the grantee in the first deed we have described. He said one of the considerations for the deed, which he made with all the other children, was that he would care for the mother during her natural life. The second grantees were Mr. and Mrs. Lloyd Kendrick. Mrs. Kendrick testified that the care of her mother was very much a part of the consideration, excepting the payment for clothing and doctor bills. “And we were to get her to and from the doctor.” The Kendricks testified that appellees agreed to the same arrangements. W. G. Woolf, another son, stated that appellees accepted the obligation to care for the mother. Of still greater significance on this point is the testimony of appellees. Martha Madison, one of the appellees, testified that she and her husband assumed substantially the same obligation toward the mother as did the Kendricks. Appellee Willard Madison testified that he made an agreement with Willard Woolf, “. . . the agreement we had we were to move out there in the house with her. She was going to buy her part of. the groceries and we were to live there and see that she got to the doctor.” (Mrs. Woolf, because of infirmities, did not attend court.)

The second pivotal question is whether appellees violated in substantial respect the obligations to the mother. We think those responsibilities were those described by the Kendricks and corroborated by appellee Martha Madison. The evidence preponderately shows that appellees abided by the agreement for some fifteen years and until Mrs. Woolf voluntarily left the home.

The Madisons, appellees, received their deed in May 1955 and shortly moved into the main house with the approval of the mother. At that time the mother was near sixty-five years of age and suffering from diabetes. That of course affected her diet. She administered her own insulin. From the outset and until Mrs. Woolf left the home in 1969 (near the age of eighty years) there is no question but that she received dutiful and kindly attention from appellee Martha Madison and her children. They took the mother to church regularly; they took her to the beauty shop weekly; she went with her daughter grocery shopping; she had her own television which the family provided her; she had two rooms for her private use; she had access to a telephone; the daughters and appellee Martha saw that the mother’s rooms were kept clean; and foods commensurate with her diet were supplied. Appellees’ small son slept on a rug at his grandmother’s bedside, which pleased her very much. The girls wrote letters, read to her, and ran errands for the grandmother.

According to appellees and two of their daughters, Mrs. Woolf became somewhat of a problem to the household. This appears to have set in about the time she passed her seventy-fifth year. She experienced two cataract operations, she became forgetful, and she gradually lost considerable strength. It was said that she became somewhat quarrelsome and exhibited an attitude of independence. Appellee Willard Madison said that on more than one occasion she would visit some of her other children and would leave after quarreling with them; and he said “any time she said anything to me it was criticism.” Mrs. Madison said she avoided arguments with her mother by not contradicting her. One of the children testified that her grandmother “got a little childish,” became more forgetful, and became a little more demanding; and that she developed a carelessness about her appearance and cleanliness. Another daughter testified that as her grandmother advanced in years she became more difficult to please; that she admonished the child about correcting her younger brother and sister; and that the grandmother became inquisitive about telephone calls received by other members of the family. Notwithstanding, there is no evidence that Mrs. Woolf’s daughter, Martha, or the children treated Mrs. Woolf with anything but respect and understanding.

Appellee Willard Madison seems to have responded differently to the increasing idiosyncrasies of Mrs. Woolf. He said he moved his family into the main house at the suggestion of Willard Woolf, who felt that the Madisons could better “care for and look after Mrs. Woolf.” Madison said his relations with Mrs. Woolf were very good for a number of years. His first displeasure with the Woolf family was that “they would come too often and stay too long,” Madison related. He denied emphatically that he set out to “freeze Mrs. Woolf out of the home.” He admitted that he had not carried on any conversations with Mrs. Woolf for some few years “because any time she said anything to me it was some criticism. I didn’t do something right.” He also admitted that he had criticized Mrs. Woolf’s demeanor—not to her—but to one or more of her children.

Several of Mrs. Woolf’s children testified, in substance, that they noticed a strained relationship between Mrs. Woolf and appellee Madison; and that they were not on speaking terms. “If mama said something, he didn’t like it and mama didn’t like what he’d say every time.” However, it can be said to the credit of appellee Madison that there is no specific evidence that he ever abused Mrs. Woolf, either physically or by spoken words. Mrs. Madison said she had never heard her husband use a profane word in the hearing of Mrs. Woolf.

When Mrs. Woolf left the home in 1969 she did not intimate that she had no intention of returning. She left the impression that she was going to visit her daughter, Ruth Kendrick. Mrs. Woolf asked Mrs. Madison to call Ruth to come after her. She took only some of her personal effects.

By virtue of the reservation of the homeplace in the deed, together with the oral agreement, Mrs. Woolf is entitled to live in the home with the Madisons, and if she returns, appellees are obligated to care for Mrs. Woolf and to see that she gets to the doctor. Appellees are not obligated to pay Mrs. Woolf’s medical bills or to furnish her clothing.

Affirmed.


author: John A. Fogleman, Justice.

text:
    David TURNER v. William O. ROSEWARREN et al
    5-5444
    464 S. W. 2d 569
    Opinion delivered March 8, 1971
    [Rehearing denied April 12, 1971.]

      Irwin, Streett ir Branden, for appellant.
    /. Marvin Holman and William M. Stocks, for appellees.
   John A. Fogleman, Justice.

This appeal comes from a judgment after a new trial of appellees’ action to recover from appellant, Betty Rosewarren’s host automobile driver, for personal injuries, following our reversal of the first judgment in Turner v. Rosewarren, 247 Ark. 1301, 440 S. W. 2d 769. We then reversed because the evidence was not sufficient to show wilful and wanton misconduct on the part of appellant. After the first judgment, Betty and appellant were married, the cause was remanded, new witnesses were discovered, Betty’s impaired memory was improved and the cause again submitted to a jury which returned a verdict for a substantially larger amount than did the first jury. Appellant again urges that the evidence was insufficient to support a verdict finding him guilty of wilful and wanton misconduct. On this appeal he also asserts that the trial court erred in admitting the testimony of Helen Stewart, who testified at the first trial, and of Mrs. David Scott, who did not. We are unable to agree with appellant on either point.

No useful purpose would be served by reiterating evidence common to both trials. We will endeavor to give emphasis to testimony at the second trial not given in the first one. We find the additional evidence sufficient to leave the question of wilfulness and wantonness of appellant’s conduct to the jury and its answer dependent almost entirely upon the credibility of witnesses.

Betty Rosewarren’s recovery from traumatic amnesia commenced one or two years after the collision. It was not complete, either as to events recalled or clarity of recollection of those things she did remember. Facts she did recall were significant, however. She remembered that appellant David Turner was angry with her before the collision, and had intentions of breaking off their relationship and recovering his class ring. Still, she could not remember his coming to her home, but could remember his driving down the road and her being frightened by the bright lights of a car coming up very close behind the Valiant automobile driven-by Turner and in which she was riding. She remembered that David told her Kenny Elkins was driving that car. She then remembered seeing a speedometer reading "85 miles an hour” and turning to look at David, but couldn’t recall whether she actually saw him. While she incorrectly described the shape of the speedometer she envisioned, she explained, after a recess, that she was confused and had incorrectly described the shape of the speedometer on her father’s automobile instead of that which she recalled seeing in David’s car. She admitted that she really could not say when she saw the 85-per-hour reading except that it was after a car approached from the rear of Turner’s vehicle. After she looked toward David, all went black, she said, until suddenly a light in the window and across the windshield on her side struck her in the face. It seemed to her that Turner’s car was sliding toward the lights. She remembered hearing screams which were her own and feeling as if there was nothing of her below the waist. She recalled asking for David, hearing Kenny Elkins’ name, and later asking David while in the ambulance en route to the hospital why he was angry and why he wouldn’t talk.

Betty also told the jury that David had driven past the place where the collision occurred many times over a period of more than one year immediately preceding this occasion. She said that, at the place of the occurrence, a driver comes upon a hill at the bottom of which there is a curve where the highway is rough and will "throw” a car which enters it. According to Mrs. Turner her fear of speed causes her to “freeze” or “clam up” until it is over. David had previously told her, she testified, that his Valiant was light and hard to handle at high speeds. She also revealed that her husband had a temper.

Other pertinent new testimony was that of Arkansas State Police Trooper Eldon Brown and Mr. and Mrs. David Scott. Brown investigated the collision on the night it occurred. He arrived at the scene while Betty and David were still there. Brown could tell then that appellant had lost control of his 1962 Valiant while coming around the curve, crossed the center line and struck the 1961 station wagon driven by Mrs. Rosa Smith. Brown described the highway at the point as “wavy” pavement 20 feet wide, with a dip and a raised place in the curve. North of the curve there is a hill and a sign 1,000 feet north of the dip warning of the impending curve. Brown said that the “dip” and the “hump” will cause the right side of a vehicle rounding it to be thrown upward and the vehicle itself leftward. He located the point of impact south of the curve. He found the Turner and Smith vehicles at a distance of 283 feet from the dip. He had recorded this distance as 183 feet on his official report, but had discovered his 100-foot error while remeasuring the distance three weeks before the trial at the request of appellees’ attorney. Brown could tell that the wheels of the Valiant had dropped off the pavement just south of the dip, after which the vehicle traveled about one-half the distance to the point of impact, came back on the highway, skidding sideways out of control across the center line, laying down 141 feet of skid marks, and then collided with the station wagon. Brown said that the damage to the Valiant was heavy and to the station wagon considerable.

David Scott lived in a house about 200 yards southwest of the point of the collision. He described the curve as a blind one on an 18-foot wide, low-type asphalt and rock highway without any shoulders whatever. He knew of a low spot in the approach to the curve from the north, which would cause a car passing over it to lurch. He heard the impact on the night of the wreck, went to the scene and then summoned the ambulance and state policeman. He observed skid marks of the Turner vehicle in the ditch west of the highway and then across the highway into the ditch on the east side where he found the vehicle at rest. The marks of only two wheels appeared in the ditch.

Mrs. David Scott beard a thump, then heard and saw the impact. She went immediately to the Turner car where she found Betty Rosewarren lying in the car on the right side. It was dark at the time, and she did not know David Turner. She saw a boy go around, get hold of the steering wheel and take something out of the car. There were only two people beside her at the scene when she got there—Betty Rosewarren and a boy. She testified that when she first saw the boy he was coming out of the car from the driver’s side. She did not know him and was unable to identify him. She testified that this boy helped her open the door on Betty’s side of the car and then squatted down beside Betty. While he was in that position, according to Mrs. Scott, he said “I was racing.” Mrs. Scott saw another boy come up just a few seconds later, and other people came later. She said that a number of people were present when this boy made the remark about racing.

Helen Stewart again testified. She said that her sister-in-law, Rosa Smith, was following her to the Hallowe’en party at the Woodland Church. She estimated the distance to the church from the place where the wreck occurred as one-quarter of a mile. One proceeding north past the scene of the wreck, as she was, would make a left turn at the top of the hill north of the curve. Unlike her earlier testimony, she testified that as she was ascending the hill in her automobile, when she was close to her turn and had given her turn signal, she met “these fast cars” going back and forth across the center line, causing her to pull onto the shoulder of the road until they had passed. She then said that the car she met was moving so fast it was not holding the road, and was moving back and forth across the center line where the road was “curvy.” The failure of this vehicle to remain on its proper side of the highway caused her to leave the highway to get out of its way. She recalled that two or three cars were following her at the time.

Mr. William Rosewarren, Betty’s father and one of the appellees, testified this time that appellant’s remark to him at the hospital was, “Mr. Rosewarren, I guess I’m not a very good driver. I was driving too fast. It’s all my fault.” He also described the highway at and near the place of the collision. He called it a wobbly, weaving, blacktopped, narrow road. He described the hump on the approach to the curve as one which caused a vehicle to “drop down and up.” He also said that anyone who drove that road knew that 50 miles per hour was the maximum speed at which a vehicle could make the curve. He questioned the accuracy of the record as to his previous testimony about David’s remark to him. He also claimed that, having never been in a courtroom before, he was in fear at the first trial.

Kenny Elkins was called as a witness by appellant. He said that he had known appellant in high school and Betty Rosewarren for six or seven years. He was stopped at an entrance to the highway when he saw them pass just before the collision. He pulled onto the highway directly behind them at a point about three miles from the place the wreck occurred. He said he was following them at a distance of six or seven car lengths and at a speed of 55 to 60 miles per hour with no vehicle intervening. He said that he did not see the wreck because the vehicles were out of his line of vision around a curve. Elkins said that they were meeting cars and that the third one, the vehicle immediately preceding that of Rosa Smith, never dimmed its bright lights. When he went around the curve the first thing he saw was the back end of David’s car up in the air coming down. He stopped before he reached the actual point of impact. He saw no - car on the shoulder, as he approached, and did not see a left turn blinker signal given by any car he met near the intersection with the road to Woodland Church. He denied ever trying to pass the Turner vehicle. He claimed to have been the first person to go to the scene, but having stopped in such a position that his vehicle blocked the highway, he went back to clear the highway. He said that he got David out of the car and at about the same time told Scott to call the police and the ambulance. He remembered seeing Mr. Scott’s mother but did not see Mrs. David (Margaret) Scott at the scene. He said it was he who squatted down beside Betty and talked to her.

Appellant contends that the testimony of Helen Stewart should have been excluded because she did not identify him as the driver of the vehicle whose actions she described. He also argues that Rosa Smith’s testimony did not connect him with that vehicle. We agree that Mrs. Stewart did not identify the vehicle or the driver. Rosa Smith did not testify, but her testimony at the earlier trial was read. She said that, just as Mrs. Stewart turned on her blinker light before turning off the highway, she met a vehicle coming over the hill that almost struck the back end of the Baker vehicle just behind Mrs. Stewart and seemed to head directly toward her vehicle quite a ways back. She testified that the vehicle then seemed to swerve back on the right side of the road and straighten up, but then went off the shoulder of the road, then came back up on the road and skidded right in front of her. She said that the car that hit her was the only one going south at the time. This testimony of Rosa Smith tended to connect the Turner vehicle with the Stewart testimony sufficiently to prevent the failure to exclude it from constituting error.

Appellant’s argument as to Mrs. Scott’s testimony is based upon her inability to identify the driver of the Valiant or the one making the statement about racing, its contradiction by Elkins, and the failure of appellees to make Elkins a party defendant or to call him as a witness. We think that it would not be unreasonable to draw the inference that the person Mrs. Scott described was the driver of that vehicle, if her testimony was believed. Admittedly, this driver was David Turner. Appellant’s arguments really attack the credibility of the witness and the weight to be given to her testimony, rather than its admissibility. Failure to exclude her testimony was not error.

The more difficult question is the sufficiency of the evidence to support the verdict. We have concluded, however, that fair-minded men might reasonably conclude from the evidence that David Turner, in a display of temper, while driving at an extremely high speed, in order to frighten the passenger at whom his fit of anger was directed, entered into a curve well known by him to be unusually dangerous for high speed vehicles because of the “dip” “hump” and lack of shoulders, fully appreciating the fact that his conduct would probably result in injury, in utter disregard of the consequences. The jury might even have found that he was racing with, or trying to keep ahead of, Kenny Elkins. While we must necessarily resolve the question of sufficiency of the evidence to present the issue of wilful and wanton misconduct upon the facts and circumstances of the particular case, this case is closely analagous to the situation presented in McCall v. Liberty, (April 27, 1970), 453 S. W. 2d 24, where we found substantial evidentiary support. It is true that we have no evidence of drinking alcoholic beverages here. Either appellant’s anger or his racing would be an equivalent circumstance to show an attitude of arrogant or heedless recklessness.

The serious questions raised here really relate to the credibility of the witnesses rather than to the substantiality of the evidence if the testimony is believed. We are unable to say that the testimony was so incredible that it must be held to be insubstantial. In this respect, we must leave evaluation of the credibility to the jury and not upset its findings unless we can say that there is no reasonable probability in favor of appellees’ version, and then only after giving legitimate effect to the presumption favoring the jury findings. McWilliams v. R. & T. Transport, Inc., 245 Ark. 882, 435 S. W. 2d 98. Fidelity-Phenix Ins. Co. v. Lynch, (June 8, 1970), 455 S. W. 2d 79. Whatever doubt may be cast upon the testimony of the appellees and their supporting witnesses was to be resolved by the jury and cannot be considered by us. Arkansas Power & Light Co. v. Kennedy, 189 Ark. 95, 70 S. W. 2d 506. We must give testimony credited and believed by the jury its highest probative value. Kroger Grocery if Baking Co. v. Melton, 193 Ark. 494, 102 S. W. 2d 859; Arkansas Power & Light Co. v. Kennedy, supra. We cannot disregard testimony believed by the fact finder, but are bound by it unless it is so contrary to physical facts or laws, scientific knowledge, laws of mathematics, or daily experience of common life or is so visionary that we can say as a matter of law that it could not be credited by any reasonable person. Standard Oil Co. of Louisiana v. Hodges, 193 Ark. 899, 103 S. W. 2d 927; Alldread v. Mills, 211 Ark. 99, 199 S. W. 2d 571; Lanier v. Trammell, 207 Ark. 372, 180 S. W. 2d 818; American Republic Life Ins. Co. v. Presson, 216 Ark. 771, 227 S. W. 2d 969. See also Corn v. Ark. Warehouse, 243 Ark. 130, 419 S. W. 2d 316. Since we cannot say that the testimony in this case is so contradicted or so visionary, we must affirm the judgment.

       Emphasis supplied.


author: Frank Holt, Justice.

text:
    Alice Clay WHARTON v. James D. BRAY and Janice Rogers Bray
    5-5389
    464 S. W. 2d 554
    Opinion delivered March 8, 1971
    [Rehearing denied April 5, 1971.]

      Moses, McClellan, Arnold, Owen if McDermott; By: Charles W. Baker, for appellant.

      Virginia (Ginger) Atkinson, for appellees.
   Frank Holt, Justice.

This action, resulting from an automobile accident, was instituted by appellee Janice Bray to recover for personal injuries and property damages and by her husband, appellee James Bray, for loss of consortium. A jury awarded a total of $7,240.95 in damages. From a judgment on that verdict comes this appeal. We first consider appellant’s contention that the trial court erred in refusing her requested instruction “concerning duty to avoid danger because said instruction accurately reflects the law which is applicable to the evidence in this case and no other instruction given by the court properly covers this area of the law.”

Evidence adduced at trial established that sometime between 6 and 7 p.m. on a mid-November evening, appellant stopped her westbound jeep in the eastbound lane of Lawson Road in order to pick up her mail from a rural route mailbox. Appellee Janice Bray, traveling eastward at about 35 to 40 miles per hour, came upon the parked jeep, swerved to the left, but nonetheless collided with it damaging the right front fender region of each vehicle. Appellee also sustained injuries to the back of her neck. Both parties had their headlights on. Appellant testified that when she observed the approaching car, she began honking her horn to alert its driver. Appellant also stated that she was parked partially off the road; however, although the cars were removed from the road before the investigating officer arrived, the remaining debris indicated that her jeep may have been entirely on the pavement. Other testimony reflected that appellant’s jeep was visible to an oncoming car for 800-900 feet, and that even if the jeep were entirely on the road, there remained approximately twelve feet of blacktop on which appellee Janice Bray could have bypassed it. Both parties lived in this vicinity and were familiar with this road.

Appellant’s refused instruction, based upon St. Louis & S. F. R. Co. v. Carr, 94 Ark. 246, 126 S. W. 850 (1910), reads:

Where a danger is probable or obvious, it is the duty of a person to exercise ordinary care to avoid injury even though the other party was negligent, and this duty to avoid the consequences of another’s negligence arises whenever the circumstances are such that an ordinarily prudent person would apprehend their existence. The law requires the exercise of ordinary care to observe danger and avoid it.

For a reason not argued in the briefs, we hold that the trial court did not err in rejecting this particular instruction, even if it is a correct one. This is true because AMI 901 [B], which is applicable to the facts of this case, also accurately states the law and, therefore, preempts appellant’s proffered instruction. This is in accordance with our Per Curiam Order of April 19, 1965 which requires the trial judge to give an applicable AMI or, in the event he finds that the AMI does not accurately express the law, to state his reasons for refusing it. The order also implicitly requires the parties to request an applicable AMI (modified if necessary) or, upon tendering a substitute instruction, to state into the record the reasons for which they believe that the AMI is inadequate or inaccurately states the law. In the case at bar, AMI 901 [B] was not requested by appellees, nor was any reason given for tendering the above quoted instruction in its place. The trial court, therefore, properly refused it. Vangilder v. Faulk, 244 Ark. 688, 426 S. W. 2d 821 (1968).

Among the other contentions for reversal we find merit only in appellant’s assertion that the trial court erred in submitting to the jury improper verdict forms; in amending the judgment; and in entering a judgment awarding property damages to appellee James Bray.

In their complaint, appellees alleged individual claims for recovery. James Bray sought only personal damages in the sum of $10,000 for loss of consortium and medical expenses; Janice Bray, however, sought personal damages in the amount of $25,000 for bodily injuries and $500 for property damage to the car which she allegedly owned. Neither appellant nor appellees favored the trial court with verdict forms specifying the elements of recovery, although the appellees informed the court that a specific finding by the jury was desired as to the amount of property damages. The court then prepared arid submitted the following to the jury:

We, the jury, find for plaintiffs and assess their damages as follows:

James Bray (Personal) $_
(Property) $_
Janice Bray $-

The jury returned a verdict awarding $600 in personal damages and $1,640.95 in property damages to James Bray and $5,000 to Janice Bray. While reading the verdict, however, the trial court inadvertantly interchanged the personal and property damages awarded to James Bray. The jury was hurriedly discharged because of the late hour and the threat of a snowstorm. Upon a motion for a new trial, the court agreed that it had mistakenly submitted an improper verdict form since Janice Bray and not James Bray was seeking property damages. The error was further compounded since the jury awarded him $1,640.95 in property damages, whereas the proof supported a verdict in this regard for no more than $600.84. The trial court, stating it was ‘‘self-evident and crystal clear” that the jury intended the sum of $1,640.95 to be James Bray’s personal damages for loss of consortium and $600 for property damages to the automobile, amended the judgment by a transposition of these awards to conform to that interpretation of the verdict.

Appellees argue here on appeal that this amended judgment is correct because it is immaterial which of them, Janice Bray or James Bray, recovered the property damages since, according to the undisputed proof, they were both owners of the automobile. They then cite authority to the effect that (1) the trial court properly should amend a verdict where it incorrectly expressed the otherwise clear intent of the jury, and (2) the appellant is not in an attitude to complain where she has failed to register an objection to the form of the verdict before the jury was discharged.

While it may be immaterial as to which appellee ultimately receives the awarded property damages, it is not without significance that the jury received a verdict form which did not fully correspond to the pleadings and proof. This may have been the very factor triggering the glaring confusion which the final form of the verdict took. Despite the trial court’s contrary observation, we do not find the intent of the jury to be clear. The amended judgment appears to have been based in some degree upon speculation as to what the jury would have done had it been afforded a proper verdict form. Even the trial court was aware of this by stating:

It could very well be that the Court is not being legally realistic and objective in facing this alleged error. Too, it could very well be that this Court is too conscious of what, in its opinion, the jury intended to do and what it would have done had the verdict form been presented properly.

Furthermore, it cannot be said that appellant failed to timely object to the form of the verdict since the damages awarded to James Bray were admittedly misread by the trial court in a manner which, as indicated previously, made them seem more consistent with the proof.

The $600 awarded to Mr. Bray for loss of consortium is more than a mere nominal sum and, therefore, cannot be increased to an amount which either the trial court or appellees or both consider to be more in harmony with the proof. This item, therefore, must remain as the jury determined it to be. Hales & Hunter Co. v. Wyatt, 239 Ark. 19, 386 S. W. 2d 704 (1965); Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49 (1928). As to the $1,640.95 awarded to Mr. Bray for property damages, both parties seem to agree that the evidence does not support more than $600.84 damages to the automobile. There was undisputed evidence of co-ownership by the Brays. By Ark. Stat. Ann. § 27-1155 (Repl. 1962) the pleadings can be construed to conform to this proof of ownership and damages without any prejudice to appellant. Since the jury’s award of property damages to Mr. Bray is supported only to the extent of $600.84, his judgment is modified and affirmed for that lesser amount. Obviously, the jury’s award to Mrs. Bray did not include the element of property damages inasmuch as that item was specifically allocated by the jury to Mr. Bray. Therefore, her judgment for $5,000 is affirmed.

Substituted Opinion delivered March 8, 1971


author: Carleton Harris, Chief Justice.

text:
    Harvey Ray JOHNSON v. STATE of Arkansas
    5570
    464 S. W. 2d 611
    Opinion delivered March 15, 1971

      W. Q. Hall, for appellant.

      Ray H. Thornton, Jr., Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Harvey Ray Johnson, appellant herein, was convicted of the crime of assault with intent to kill and, in accordance with the verdict of the jury, sentenced to ten years imprisonment. From such judgment, Johnson brings this appeal. Only one point is relied upon for reversal, viz, “The trial court erred in overruling the defendant’s motion to require the prosecution to furnish him copies of the statements of the witnesses (the alleged victim of the assault).” Johnson was charged on July 9, 1970, and on July 16, entered a plea of not guilty. The case was set for trial on September 11. On September 10, counsel for appellant filed an affidavit and motion for production of statements of state witnesses. The affidavit set out that counsel had asked the prosecuting attorney for the names and statements of the witnesses, but had been advised that up until September 9 there were no such statements; that when they were acquired, copies would be furnished appellant’s counsel. The affidavit further set forth that the prosecuting attorney had statements from Kermit Smith, the person who was allegedly assaulted, and other witnesses whose names were unknown to appellant or his attorney, and the motion prayed that the prosecuting attorney be directed to make available to appellant and his counsel any statements taken or to permit the making of photostatic copies. The motion was denied, but appellant admits that on that same date, his attorney was furnished with copies of the statements of all witnesses except Kermit Smith, the victim of the shooting.

We do not agree that error was committed. In the first place, there is nothing in the record to indicate that Smith ever made a statement of any nature to the prosecuting attorney or investigating officers. Smith testified at the trial when the prosecuting attorney presented the state’s case, and of course there was opportunity for defense counsel, on cross-examination, to interrogate Smith relative to whether any pre-trial statement had been made by him; this was not done, nor was it contended in the motion for new trial that appellant had discovered subsequent to the trial that Smith had made a statement.

In Smith v. Urban, 245 Ark. 781, 434 S. W. 2d 283, we held that whether or not a prosecuting attorney in a criminal case must disclose evidence in his possession favorable to the accused depends on many factors and a case by case judgment must be made. Under the circumstances of Smith v. Urban supra, we held that certain evidence should have been made available to Smith’s counsel. However, the evidence referred to was very favorable to the accused, probably the most important evidence that could have been offered in his behalf. In the case before us, the testimony of Smith at the trial is abstracted, and we fail to see where any part of his evidence could be said to be favorable to Johnson. In fact, we would classify it as extremely unfavorable, and there is absolutely no showing that Smith had made any statement, either orally or in writing, contrary to the testimony given on the witness stand. In Murchison v. State, 249 Ark. 861, 462 S. W. 2d 853, we held that where a motion for a new trial is made on the basis that evidence was suppressed, the primary focus of the inquiry is to determine whether the defendant has been deprived of a fair trial by the unavailability to him of the particular testimony. Here, we do not know what alleged fact or facts supposedly favorable to the accused appellant was deprived of presenting to the jury, and from the record and briefs, it does not appear that he has any particular circumstances in mind.

We find no reversible error.

Affirmed.


author: George Rose Smith, Justice.

text:
    James E. BRADSHAW v. STATE of Arkansas
    5547
    464 S. W. 2d 614
    Opinion delivered March 15, 1971

      David C. Shelton, for appellant.

      Ray H. Thornton, Jr., Attorney General; John D. Bridgeforth if Ken Stoll, Asst. Attys. Gen., for appellee.
   George Rose Smith, Justice.

In July of 1969 the appellant pleaded guilty to four charges of uttering forged checks and was sentenced to eight years imprisonment upon each charge, the sentences to run concurrently. Thereafter he filed a petition for postconviction relief under Criminal Procedure Rule 1, asserting that his pleas of guilty were induced by coercion. This appeal is from the circuit court’s denial of the petition, after an evidentiary hearing.

Bradshaw testified that while he was in jail awaiting trial he was beaten and his head was shaved, on orders given by the sheriff. That testimony was disputed by the State’s witnesses, who stated that the heads of all the inmates of the jail were shaved as a measure necessary to combat an infestation of lice with which one prisoner was afflicted. According to those witnesses, the only force used was that necessary to overcome Bradshaw’s resistance. The evidence is amply sufficient to support the trial court’s finding of fact against the petitioner upon this point.

Bradshaw’s pleas of guilty were the result of negotiations between his attorney and the prosecuting attorney’s office. See Cross v. State, 248 Ark. 553, 452 S. W. 2d 854 (1970). The State first tried to persuade Bradshaw to accept a sentence of twenty years, but he refused. Eventually the parties agreed upon a recommended sentence of eight years, which the court imposed.

Bradshaw now contends that his pleas were coerced, because during the negotiations the deputy prosecuting attorney made the statement that he could obtain a sentence of 47 years under the habitual criminal statute. We find no proof of coercion. Bradshaw admittedly had four previous felony convictions; so under the habitual criminal act he could have been sentenced to as much as one and a half times the maximum penalty for each offense. Ark. Stat. Ann. § 43-2328 (Supp. 1969). Since the maximum sentence for uttering a forged check is ten years, Ark. Stat. Ann. § 41-1805 (Repl. 1964), Bradshaw could have received a sentence of fifteen years upon each charge, or a total of sixty years imprisonment, That a plea of guilty is induced by the possibility of the prisoner’s receiving a more severe sentence does not establish coercion. Brady v. United States, 397 U. S. 742 (1970). Moreover, it must be borne in mind that the parties were negotiating. Some reference to the possible minimum and maximum sentences is obviously pertinent, perhaps even essential, to the negotiating process; so it cannot reasonably be said that such a reference is coercive.

The appellant also complains that he was unable to make a bond in the amount set by the court, and consequently he was held in jail for nine months before he pleaded guilty and was sentenced. If the amount of the bond was unreasonable that issue could have been reviewed in this court. Parnell v. State, 206 Ark. 652, 176 S. W. 2d 902 (1944); Ex parte Osborn, 24 Ark. 185 (1866). Furthermore, there is no proof in the present record that the bond was fixed in an amount that was excessive in the circumstances.

Bradshaw also complains of the fact that the officers took $505 that he had when he was arrested and returned it to the persons who had been defrauded. Bradshaw testified, however, that he had defrauded the persons and wanted to give the money back to them; so he is not in a position to complain about his wishes having been carried out. We are not impressed by the implied suggestion that a thief has a constitutional right to use the stolen funds to make bail when he is charged with the offense.

No error appearing, the judgment is affirmed.

Fogleman, J., not participating.


text:
    Shirley BOATWRIGHT v. PULASKI COUNTY JUVENILE COURT
    5-5500
    464 S. W. 2d 600
    Opinion delivered March 15, 1971

      Monroe L. Bethea, for appellant.

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

Garry Wayne Morris, a/k/a Boatwright, was adjudged by the Pulaski County Juvenile Court to be a dependent and neglected child. Custody was removed from the mother (the father was deceased) and the boy was placed in the custody of Mr. Jim Fisher, operator of Shawnee Valley Boys Ranch, Harrison, Arkansas. Three years later, when the mother had regained her health and was steadily working, she petitioned that the boy be returned to her custody. That petition was denied and on appeal to circuit court there was an affirmance. The mother, Shirley Boat-wright, appeals, alleging the judgment to be contrary to the law and the evidence; that the court erred by admitting into evidence several notarized statements from employees of the boys school; and that the mother was not bound by any contractual arrangement between herself and the boys school to the effect that the child was to remain at the school until he finished the twelfth grade.

In 1966 Shirley Boatwright was approximately twenty-eight years of age, in poor health, and in dire financial circumstances. Life for her had been rugged. As a teenager she had served a time in the Arkansas Girls Training School. Following that episode she married; in fact she had five different husbands. To one or more of those marriages were born two children, and in 1966 the daughter was ten years of age and Garry was two years older. Shirley made arrangements with her parents to care for the daughter. Because the parents’ home was not large enough to accommodate both children, and because Garry presented an unusual disciplinary problem, the mother agreed to a juvenile court order declaring the boy a ward of the court and with the understanding that he would be placed in the Shawnee Valley Boys Ranch.

In 1969 the mother was living in Alabama. She was regularly employed and earning some sixty dollars a week take-home pay. She had a three-bedroom apartment. She took the daughter to Alabama and placed her in school, where the child was reportedly making good grades. In that situation, and with her health regained, the mother petitioned the Pulaski County Juvenile Court to reinvest her with custody of the boy. The court adjudged that the boy remain in the present custody as award of the court.

We cannot agree with appellant that the judgment is contrary to the law and the evidence. In Duncan v. Crowder, 252 Ark. 628, 339 S, W. 2d 310 (1960), we said: “As in all child custody cases, the tender consideration we have for the future of the child involved causes us more concern than we experience in any other type of case. Of course it is a universal rule of law that the paramount consideration in awarding custody of minor children is the best interest and welfare of the child.” With that rule of law as a guide we examine the evidence.

We do not dispute the assertion that the mother is not as unstable as she was when she relinquished custody of her son in 1966. But the paramount question is whether the son has shaken off his incorrigibility which just four years ago was so serious that neither the mother nor the boy’s maternal grandparents could control him. On cross-examination the grandfather, who was called as a witness by the mother, stated the opinion that the interest of the boy would be better served if he were left at the boys ranch. Jim Fisher is the director of the boys ranch. He said Garry had made considerable improvement but that he is not yet ready to adjust to public school life because of personality traits. Fisher predicted that if the mother’s petition for custody were granted, Garry would doubtless end up in a reform school. The trial judge was also probably impressed, as we are, with the fact that the mother has to work full time and therefore would not be able to give maximum attention to the child’s problems. Then there was the testimony of Rev. Grover Bishop, pastor of the Fairview Baptist Church in Little Rock. At appellant’s request he had helped get the boy admitted to the boys ranch. He had observed Garry “in the most recent months,” and it was Rev. Bishop’s opinion that Garry is not yet prepared to be released from the boys ranch. The testimony we have recited was not contradicted. The only substantial testimony offered by the mother was as to her belief that she is now able, physically, emotionally, and financially, to care for her son.

Appellant complains that the court considered, in violation of the hearsay rule, five notarized statements from teachers and custodians at the boys ranch. Those statements opposed Garry’s release. After a careful search of the record we find no showing that the statements were in fact introduced as evidence. There was considerable discussion concerning those instruments. At one point the court said, “Very well, they appear to qualify.” But before the court pursued the matter to a final determination on admissibility counsel for appellant interceded and asked for permission to further question the witness on the point of inadmissibility. That motion was granted. After further questioning of the witness through whom the instruments were sought to be introduced, the court said: “The documents will be marked for identification and submitted to the court and I will make my ruling as to the admissibility subsequently. Let them be marked for identification as State’s Exhibit Two.” (Emphasis ours.)

Other than allowing the instruments to be marked for identification we are unable to find any further reference thereto. At the close of appellant’s evidence the respondent moved for judgment. The court responded by saying that he had “not read the reports that have been admitted.” We conclude that he was referring to the two written instruments which were admitted in evidence on behalf of the appellant. (The admissibility of those instruments is not attacked on appeal.) They consisted of a letter from the State of Alabama, department of pensions and security, and another létter from the department of pensions and security of Mobile County, Alabama.

It is to be noted that the court said a ruling would be subsequently made on the admissibility of the documents. In that situation, if the appellant desired to pursue the motion, she should have subsequently called the court’s attention to the motion and sought a ruling. The failure to so act constituted a waiver. Flake v. Thompson, 249 Ark. 718, 460 S. W. 2d 789.

The next point made by appellant is that “any contractual arrangement between Mrs. Boatwright and Shawnee Valley Boys Ranch that Garry w'ould remain there until he finished high school would be void as against public policy.” Mr. Fisher testified that he wrote a letter to the juvenile court stating that Garry would be accepted on condition that he stay at the ranch until he finished high school. Appellant did not pursue her initial objection to the testimony. There is no intimation that the trial court took that statement into consideration in its decision. That condition was not incorporated into the juvenile court decree and properly so, even if appellant had given her consent. Waldron v. Childers, 104 Ark. 206, 148 S. W. 1050 (1912). For the reasons stated, we find the point to be without merit.

Affirmed.


text:
    ARKANSAS STATE HIGHWAY COMM’N v. Jewell Thomas BANE
    5-5435
    464 S. W. 2d 603
    Opinion delivered March 15, 1971

      Thomas B. Keys, Philip N.- Goioen, and Hubert E. Graves, for appellant.

      Felver A. Rowell Jr., for appellee.
   John A. Fogleman, Justice.

This is a sequel to Arkansas Highway Commission v. Bane, 247 Ark. 143, 445 S. W. 2d 106. We reversed a judgment fixing the amount of the landowner’s compensation for a right-of-way taking and remanded the case for a new trial. We reversed because we found that the testimony of the landowner did not afford substantial support for the jury verdict.

On retrial, the value testimony of two witnesses on behalf of appellee was stricken on motion of appellant, leaving the verdict on her behalf dependent entirely upon the testimony of Sammy Carl Plummer, the mayor of Plummerville. Appellant asks that we reverse this judgment because: (1) the trial court refused to strike from Plummer’s testimony $6,000 of his damages relating to one tract and $1,800 to the other tract remáining after the taking for the reason that his basis was what he would give for the lands; (2) he gave no substantial evidence to support his testimony

Plummer testified that a tract of 43.6 acres left south of Interstate Highway 40, after 18.4 acres were taken, was worth only $50 per acre . after the taking. Appellant moved to strike $6,000 of the total damage figure because it contended that the witness based his valuation of the lands after the taking on what he would give for it instead of what it would bring on the market. The contention is based on Plummer’s answer to a question on cross-examination, asking why he arrived at a difference of $150 between the overall value of $200 per acre he had placed on the tract before the taking and his valuation of this parcel after the taking. The interrogation which preceded the motion went as follows:

A. That’s what I told Mr. Hayes when he asked me. He is one of your appraisers. He come to me on nearly all of these tracts and asked what I would give for them. I told him at the time—
Q. That’s your appraisal of the after value— what you would give for it?
A. He asked what I would give for it.

While Plummer’s answers may not have been fully responsive to the examiner’s questions, they hardly establish the use of an improper basis for valuation by Plummer. He simply stated that one of appellant’s appraisers had asked him what he would give for the tract and that he gave him the figure he had stated in his testimony. Plummer had lived in Plummerville for 64 years. He had been the county clerk for three years, had been in the tax assessor’s office for four years, in the tax collector’s office for two years, and had served on the county equalization board for six years. He had been familiar with the tract for 20 or 30 years. He said that he was generally familiar with land values in and around Plummerville. He testified that after the taking this tract was completely isolated without any public vehicular access. The closest approach to it, without crossing lands of others, was one-quarter of a mile away, according to him. He stated that he figured no one would want the land isolated back over on top of a mountain. In his opinion the use of the land as a cattle operation had been ruined.

The motion to strike his testimony that an 18-acre tract left north of the highway was worth only $100 per acre after taking was based upon his saying that is what he would give for it in response to a cross-examination query if he had any reason for saying it was worth only that amount. Plummer had previously testified that there was not very much of it that anybody would want. The motion to strike this “after value” testimony was denied by the court with the comment that Mayor Plummer was a lay witness.

Appellant’s motion went only to the striking of the values given by Plummer for the value of lands remaining after the taking. His testimony as to the value of the land before the taking would have been left intact. Arkansas State Highway Commission v. Stallings, 248 Ark. 1207, 455 S. W. 2d 874; Arkansas State Highway Commission v. Phillips, 247 Ark. 681, 447 S. W. 2d 148.

The witness was permitted to testify as a non-expert, who said that he knew the value of the land. He testified that he was generally familiar with the values of lands in the vicinity of Plummerville and that a lot of people sought his opinion on the subject. He lived within a quarter of a mile of the property. Such witnesses are permitted to express their opinions as to values. City of Little Rock v. Sawyer, 228 Ark. 516, 309 S. W. 2d 30; Lazenby v. Arkansas State Highway Commission, 231 Ark. 601, 331 S. W. 2d 705. Plummer’s competency as a value witness was not questioned. Appellant had the burden of showing that there was no reasonable basis for his opinion. Arkansas State Highway Commission v. Dean, 247 Ark. 717, 447 S. W. 2d 334; Arkansas State Highway Commission v. Clark, 247 Ark. 165, 444 S. W. 2d 702.

We do not feel that appellant met its burden. The mere fact that the witness stated that the value ascribed to the remainder was what he would give for it is not sufficient to show that he would give more or less than market value or to render his testimony inadmissible. Arkansas State Highway Commission v. Pruitt, 249 Ark. 682, 460 S. W. 2d 316. If this were the sole basis for the testimony of the witness, or if he were clearly not a competent witness on land value, we might consider this answer in a different light. Since neither premise exists here, we find no error in the refusal of the circuit judge to strike his testimony.

Appellant argues that since Plummer based his opinion on a single sale of lands he had made earlier in the immediate vicinity and his experience as a public official, but did not know of or investigate other sales in the vicinity, it is clear that he had no knowledge of the market value of lands. Accordingly, says appellant, there was no substantial basis for his testimony and its motion to strike his value testimony for that reason should have been granted. Of course, his knowledge or lack of knowledge of sales of other lands was to be considered in evaluating his credibility and the weight to be given to his testimony, but would not render his testimony insubstantial as a matter of law. Arkansas State Highway Commission v. Ormond, 247 Ark. 867, 448 S. W. 2d 354. In order for us to hold otherwise, the matter elicited on cross-examination must have demonstrated that Plummer had no reasonable basis whatever for his opinion. Arkansas State Highway Commission v. Carter, 247 Ark. 272, 445 S. W. 2d 100. We cannot say that this was demonstrated.

The judgment is affirmed.


text:
    A. B. HERVEY, Jr., Comm’r of Revenues, State of Arkansas v. AMF BEAIRD, INC.
    5-5504
    464 S. W. 2d 557
    Opinion delivered March 15, 1971

      Lyle Williams, J. Victor Harvey, John F. Gautney, Walter Skelton and Deuiey Moore, Jr., for appellant.

      Wright, Lindsey & Jennings, for appellee.
   John A. Fogleman, Justice.

The Commissioner of Revenues contends that the chancery court erroneously granted summary judgment in favor of appellee AMF Beaird, Inc., a Delaware corporation, whose principal office is in Louisiana, for recovery of income taxes paid the State of Arkansas by it for the years 1964, 1965 and 1966. In the judgment, granted on appellee’s motion in a suit by it to recover these taxes, the chancellor made the following findings:

1. Plaintiff timely filed, on February 8, 1969, amended returns requesting refunds of income tax paid for the calendar years 1964, 1965, and 1966. Defendant denied the requested refunds, and plaintiff timely sought review of that denial in this Court.
2. Defendant has presented no evidence in opposition to the affidavit, depositions, and exhibit submitted by plaintiff in support of its motion and supplement to motion for summary judgment, and there is, therefore, no genuine issue as to any material fact.
5. Defendant is prohibited by the terms of 15 U. S. C. A. § 881 from levying an income tax on plaintiff for the years 1964, 1965, and 1966.

Appellant urges three points for reversal. He contends that the court erred (1) in holding that appellant had presented no evidence in opposition to the affidavit, depositions and exhibits submitted by appellee in support of its motion for summary judgment; (2) in granting summary judgment in spite of the existence of genuine issues as to material facts; and (3) in holding that appellant is barred from levying an income tax on appellee for the years in question by United States Public Law 86-272, 73 Stat. 555, 15 U. S. C. A. § 381. As we view the matter, the issues raised by these points are so interdependent and intertwined that they cannot well be treated separately, so we will discuss them collectively. The real issue raised by the pleadings is whether appellee is relieved from the payment of income taxes for the years in question by the provisions of the federal law above mentioned. The act, insofar as pertinent, reads as follows:

(a) No state, or political subdivision thereof, shall have power to impose, ... a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person during such taxable year are either, or both of the following:
(1) the solicitation of orders by such person, or his representative, in such State for sales of tangible personal property, which orders are sent outside, the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State; and
(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the benefit of a prospective customer of such person,. if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1).
(b) The provisions of subsection (a) of this section shall not apply to the imposition of a net income tax by any State, or political subdivision thereof, with respect to—
(-1) any corporation which is incorporated under the laws of such State; or
(2) any individual who, under the laws of such State, is domiciled in, or a resident of, such State.

Appellee based its motion for summary judgment upon the pleadings, the depositions of Robert Carroll, Jr., Paul Downs and Clian Dearien and the affidavit of N. T. Adams. In response, appellant filed only a formal allegation that there was a genuine issue of material fact and a brief in which he argued that the business activities of appellee exceeded the mere solicitation of orders for sales of tangible property. Appellant relied upon disclosures in the depositions upon which appellee based its motion. These disclosures included the contracts between appellee and certain of those with whom it did business in Arkansas.

Carroll operates Carroll Building Sc Supply Company, a sole proprietorship in Murfreesboro, engaged in the building material and LP gas business. He sells LP storage tanks manufactured by Beaird. He makes payment for tanks sold each month either to its representative or directly to the company at its principal office in Louisiana. He never returned any equipment to Beaird unless it was damaged or defective. He said that AMF salesmen never did anything except take orders, check his inventory and accept payments. Carroll carried insurance on the equipment obtained from Beaird while it was in his possession. He said that monthly sales were about equal to monthly orders. He stated, “As we sell a tank we pay for it.” The contract between Carroll and Beaird, which could be terminated by either party upon 30 days’ notice, contained the following pertinent provisions:

I. That First Party shall consign to Second Party Beaird Standard LP-Gas domestic systems at Second Party’s business location in Murfreesboro, Arkansas, and Second Party shall receive and accept possession of said systems upon the terms and conditions hereinafter stated:
II. Shipments will be made by truck or rail at First Party’s discretion, and all freight charged from First Party’s plant to destination will be paid by First Party;
III. The prices at which Second Party shall buy said systems will be in accordance with a schedule to be furnished Second Party by First Party, and said prices will be subject to change by First Party at any time;
IV. Second Party agrees to accept billing for all systems remaining in their consigned stock over twelve months;
V. Second Party agrees that no consigned systems or other equipment will be used, sold or removed from its stock until cash payment for said systems or equipment has been made to First Party. Upon request of Second Party, giving serial number of systems sold, name and address of purchaser, First Party shall furnish State or local regulatory bodies and the customer the required data sheets. Second Party also agrees that parts will not be removed from systems in stock for any purpose without written approval from First Party. Second Party agrees to store systems or other tank equipment in a manner which will hold them safe from fire, theft or other damages which may occur and to protect First Party against any liens, seizures, taxes, or other claims or privileges which might be made against said systems or First Party. Second Party, as consignee, especially assumes liability for and\ agrees to pay any state or local taxes levied on the consigned articles or their use or sale, or on the business growing out of the consignment of said systems;
VI. Second Party shall diligently promote the sale of First Party’s systems and if, in the opinion of the First Party, any or all of said systems on hand at any time are slow of movement, then at the sole discretion of First Party, Second Party shall make disposition of said systems in accordance with written instructions directed to it by First Party. Any freight or hauling charge involved in such disposition shall be at the expense of First Party.
VII. During the terms of this contract Second Party agrees not to stock or sell LP-Gas systems manufactured by others than First Party.

Carroll stated that he used his own sales agreement forms, billed customers and extended credit at his own risk, without any dictation or suggestion or prices by Beaird, in spite of the contract provisions.

Downs operated Tobin Furniture & Butane Company, a corporation engaged in the LP gas and furniture business in DeQueen, under a contract similar to that with Carroll. Paragraph 4, however, in the Tobin contract, reads as follows:

IV. Second Party agrees to use systems shipped into consignment on a first-in first-out basis in order to avoid obsolete inventory, and furthermore, Second Party agrees to remit for all systems remaining in their consigned stock over twelve (12) months.

This contract also contained an additional provision reading as follows:

If Second Party cancels the consignment agreement, he agrees to (a) either purchase the remainder of stock on hand at First Party’s published list price as of date of cancellation, no cash discount, will be allowed; or (b) deliver the stock remaining in consignment to another consignment located as directed by First Party; or (c) return the stock remaining in consignment to the First Party’s factory at Second Party’s expense.

Downs followed practices similar to those of Carroll. He said that Beaird’s salesman would come by, inventory his stock and collect for whatever merchandise he had sold.

, Dearien operated Stone County Gas Company, a corporation in Mountain View, selling propane gas and appliances. The corporation acquired the business from O. H. Stevens, who was buying from Beaird. It continued the existing relationship with appellee. Stevens’ contract with Beaird was virtually identical with that of Tobin. Dearien obtained tanks by placing an order, usually when Beaird’s salesman called. He paid Beaird either at the end of a month or when the salesman came around and checked inventory. Otherwise, the method of operation was similar to those conducted with the other deponents. Dearien testified, "The property was on consignment and it was ours to handle any way we saw fit as long as we paid for it.”

N. T. Adams was Beaird’s sales representative at all times after June 1, 1951. He made monthly calls on Beaird’s customers in Arkansas. He stated that his only duties in Arkansas were:

(a) To receive orders from the customer for transmittal to the home office in Shreveport, Louisiana, where the order is accepted or rejected.
(b) To check the customer’s inventory of Beaird equipment.
He said that the customer paid Beaird each month for the merchandise sold by the customer during the preceding month. He added that Beaird did not intend to retain title to the equipment sold to its customers, took no action for this purpose, did not designate its customers as its agents and did not deal with them on that basis. He corroborated the deposing customers as to practices with reference to sales, credit extended, prices, etc.

At the outset, we should say that we do not agree with the chancellor that the failure of appellant to offer evidence in opposition to the affidavit, depositions and exhibits submitted by appellee necessarily entitled the latter to summary judgment, or showed nonexistence of any genuine issue as to any material fact. See Ashley v. Eisele, 247 Ark. 281, 445 S. W. 2d 76. This is only the case when the moving party has clearly met its burden of demonstrating that there is no justiciable issue. The adverse party only has the burden of demonstrating the existence of such an issue when the moving party has made a prima facie showing of entitlement to the relief sought by it. See Ark. Stat. Ann. § 29-211 (e) (Supp. 1969); Miskimins v. City National Bank of Fort Smith, 248 Ark. 1194, 456 S. W. 2d 673. In determining whether the movant has made the requisite showing, all doubts are resolved against summary judgment, all presumptions and inferences must be resolved against the movant and, in a case in which fair-minded men may honestly differ about the conclusions to be drawn from the testimony, summary judgment must be denied. Mason v. Funderburk, 247 Ark. 521, 446 S. W. 2d 543. The evidence must be liberally construed in favor of the party opposing the motion. Pickens-Bond Const. Co. v. North Little Rock Elec. Co., 249 Ark. 589, 459 S. W. 2d 549.

In order to determine the correctness of the chancery court’s action, we must decide whether the facts shown in support of appellee’s motion made a prima facie case for recovery of the taxes paid by it. We find that they do not. Appellee failed to bring itself within the statute upon which it relies because it did not show that the only business activity on its behalf in Arkansas was the solicitation of orders. The stated purpose of the act in question was to prohibit states from collecting income taxes permitted by Northwestern States Portland Cement Co. v. Minnesota and Williams v. Stockham, 558 U. S. 450, 79 S. Ct. 357, 3 L. Ed. 2d 421, wherein it was held that mere solicitation of orders afforded sufficient “nexus” with the state in which they were solicited for such taxation. 2 U. S. Code Cong. & Adm. News 2548 et seq. (86th Cong., First Session, 1959). When we consider the purpose of the legislation and the language of the act, we cannot give the term “solicitation” the broad interpretation necessary to sustain this judgment. Other jurisdictions considering this section have held that “solicitation” is not to be given a broad construction. Clairol, Inc. v. Kingsley, 109 N. J. Super. 22, 262 A. 2d 213 (1970); Cal-Roof Wholesale Co., Inc. v. State Tax Commission, 242 Ore. 435, 410 P. 2d 233 (1966); Herff-Jones Co. v. State Tax Commission, 247 Ore. 404, 430 P 2d 998 (1967). The legislative history of the act clearly indicates that a narrow construction of the term “solicitation of orders” was intended by Congress. 2 U. S. Code Cong. & Adm. News 2548, et seq. (86th Cong., First Session, 1959).

The activities of appellee’s representative in Arkansas go far beyond mere solicitation of orders for sales of appellee’s products to be shipped into the state if the orders are approved. Proper performance of his duties requires him to make regular checks of customers’ inventories of Beaird equipment. The record shows that Adams did so. This practice itself extends Beaird’s activities beyond the scope of solicitation of orders. Even if it should be said that this activity helped to produce orders, it is equally reasonable to conclude that Beaird’s interest was in protecting its property rights in the items shipped to the various parties with whom it had contracts, to establish the basis for billing these parties and to determine whether conditions in any particular instances required invocation of rights reserved in the various contracts. If Beaird did not maintain this degree of control, then it would have had no means of determining whether or when it should bill a customer for a particular item or whether proper and timely remittances had been made by the customer.*

We would have no difficulty, however, in finding that appellee had failed to show, at least as a matter of law, that its activities were restricted to solicitation of orders for sales of tangible personal property. Appellant argues, with persuasive force, that the relationship between appellee and its “customers” is based upon a consignment arrangement, and that no sale is made by Beaird to them. Since the contracts might possibly be construed as being for conditional sales, in determining whether there was a sale or consignment we must look at the entire contract, as well as the actions of the parties thereunder. Sternberg v. Snow King Baking Powder Co., 186 Ark. 1161, 57 S. W. 2d 1057; American Snuff Co. v. Stuckey, 197 Ark. 540, 123 S. W. 2d 1063. See also, Ludvigh v. American Woolen Co., 231 U. S. 522, 34 S. Ct. 161, 58 L. Ed. 345 (1913); Edgewood Shoe Factories v. Stewart, 107 F. 2d 123 (5th Cir. 1939); Liebowitz v. Voiello, 107 F. 2d 914 (2nd Cir. 1939); Reliance Shoe Co. v. Manly, 25 F. 2d 381 (4th Cir. 1928).

Significant factors in evaluating such a transaction include:

1. Suggestion and contemplation of consignment in the memorandum of the agreement between the parties. [See In re DIA Sales Corporation, 339 F. 2d 175 (6th Cir. 1964).]_
2. Lack of obligation on the part of the “consignee” to pay for unsold goods. [See Ludvigh v. American Woolen Co., supra; Fowler v. Pennsylvania Tire Company, 326 F. 2d 526 (5th Cir. 1964); In re DIA Sales Corporation, supra.]
3. Obligation of the consignee to pay for goods when sold by him. [Edgwood Shoe Factories v. Stewart, supra.]
4. Prompt remittance to consignor for goods sold, whether for cash or credit. [See Edgewood Shoe Factories v. Stewart, supra.]
5. Visits to consignee to inquire into sales and urge prompt remittance of collections to consignor. [See Ludvigh v. American Woolen Co., supra.]
6. Keeping by a representative of the consignor of an account or inventory of goods consigned and sold. [See Ludvigh v. American Woolen Co., supra.]
7. Provision for return of merchandise upon termination of the agreement. [See Ludvigh v. American Woolen Co., supra.]

In reviewing the contract and the actions of the parties here we note the following significant factors indicating that the arrangement was for consignment rather than sale:

1. The contracts use words consistent with consignment throughout, e.g.:
a. First party shall consign to second party. . .
b. Second party agrees that no consigned systems will be used, sold or removed from its stocks...
_c. Second party as consignee, especially assumes liability for and agrees to pay any state or local taxes levied on the consigned articles or their use and sale, or on the business growing out of consignment of said systems.
d. Second party agrees to use systems shipped into consignment on a first-in and first-out basis. . . and furthermore second party agrees to remit for all systems remaining in their consigned stock . ..
e. If Second party cancels the consignment agreement he agrees to (a) . . . or (b) deliver the stock remaining in consignment to another consignment ... or (c) return the stock remaining in consignment.
2. The “customers” were only obligated to receive and accept possession of systems consigned upon the terms of the contract.
3. There is no obligation on the part of the “customer” to pay for consigned systems unless they remain in his consigned stock for more than 12 months, or unless they have been sold by him. He may, at his option purchase the remainder of stock on hand if he cancels the consignment agreement.
4. Parts cannot be removed from any system in stock without written approval of Beaird.
5. The “customer” is obligated to store the systems in a manner to hold them safe from fire, theft or other damages and to protect Beaird from liens or claims which may be asserted against Beaird.
6. If, in the opinion of Beaird, any of the systems are slow of movement, then at the sole discretion of Beaird, the “customer” shall make disposition of the systems in accordance with Beaird’s written directions, with freight or hauling expense borne by Beaird.
7. The “customer” agrees not to stock or sell systems manufactured by others.
8. The “customer” agrees to “use” systems on a first-in, first-out basis to avoid obsolete inventory (in spite of the fact that he must pay 'for all systems remaining in the consigned stock over 12 months).
9. If the “customer” cancels the contract, he may either pay for the stock on hand, deliver the property remaining to another consignment at the direction of Beaird or return it to Beaird’s factory at his own expense.

We do not intend to say that there are not other significant factors involved. It would not be unreasonable to infer from appellee’s filing of tax returns and paying the taxes that it once thought that it was liable for them. Some of the actions of the parties are probably more consistent with a conditional sale than with consignment. We do mean to say that, at the very least, those factors pointed out suffice to raise a question of fact for the trial court’s determination. Language from In re Lexington Appliance Company, Inc., 202 F. Supp. 869 (D. C. Md. 1962) is appropriate here:

A consignment is generally defined as a bailment for care or sale, where there is no . obligation to purchase on the part of the consignee. The presence or lack of an obligation to purchase or pay for the goods on the part of the consignee is the most important factor in determining whether the agreement may be termed a consignment, because, if the alleged consignee is absolutely bound in all events to pay for the goods unsold, even though title is reserved in the alleged consignor, the transaction is a sale, or at least a conditional sale. ,

Here the “customers” were never absolutely bound, in all events to purchase any item. The contracts could easily be terminated before liability accrued for a system in stock for more than 12 months.

Since we cannot say that appellee was entitled to judgment on the record before us, as a matter of law, the judgment is reversed and the cause remanded for further proceedings.

Jones, J., dissents.

       Plemmons Brothers Butane Company in Waldron had a similar arrangement with Beaird, but it is not now doing business.

       We do not discuss the effect of "acceptance of payments” in Arkansas by appellee’s representative because appellee asserted and appellant admitted in oral argument that this issue had not been raised in the trial court.

       It is notable that the words “sold” and “sale” are never used in connection with the transactions between Beaird and its “customers.” They are only used in reference to transactions conducted by the “customers” in disposing of the goods.