author: Frank Holt. Justice.

text:
    Ernest PATRICK et al v. Betty Lou RANKIN, Executrix
    73-249
    506 S.W. 2d 853
    Opinion delivered March 25, 1974

      Jones & Segers, for appellants.
    Kincaid, Horne & Trumbo, for appellee.
   Frank Holt. Justice.

Calvin Curtis Patrick died at the age of 84, unmarried and without issue. About one year prior to his death, an attorney prepared a will divising all of Patrick’s property to appellee, Betty Lou Rankin, who was related to Patrick by marriage and had provided care for him since her childhood. Patrick had been totally blind from childhood and was illiterate. The will was signed in the attorney’s office by Patrick with the assistance of Mrs. Rankin. Two witnesses then signed the will pursuant to Ark. Stat. Ann. § 60-403 (Repl. 1971). The court held the will valid.

Appellants, decedent’s brothers and sisters challenging the will, contend for reversal “that the lower court erred in ruling that an individual who was blind, illiterate and had never been able to read or write could execute a will with only two witnesses.” Appellants ask us to declare that an illiterate blind man cannot be assisted in making a signature, which assertedly constitutes only his “mark,” and must, therefore, have three witnesses to his will. We cannot agree.

. It is true that where the testator signs by a mark, it is mandatory that three signatures be affixed, one to witness the testator’s mark and two to attest the will. See § 60-403, supra, Green v. Smith, 236 Ark. 829, 368 S.W. 2d 280 (1963), and Priola v. Priola, 237 Ark. 798, 377 S.W. 2d 29 (1967). We have long held, however, that when the testator is assisted in signing a will, the act is his own and not the act of another under authority from him. Vines v. Clingfost, 21 Ark. 309 (1860). See generally 2 Page on Wills § 19.53 (3d. Ed. 1960). In the case involving a hundred year old blind testatrix who had not been able to write for eighteen years, we approved her signature although she was assisted. Coleman v. Walls, 241 Ark. 842, 410 S.W. 2d 749 (1967). Although we have the additional factor of illiteracy in the case at bar, we hold that the controlling factor in an assisted signature is not the testator’s literacy but his intent. As one court explained:

Whether a testator can write at all makes no difference in determining the validity of a will, nor does it matter whether he is so stricken that he cannot write, or can write only with difficulty. Where testator’s mental conception is entirely clear and he desires to sign the will, but his physical powers unassisted will not permit it, and such assistance is called in, the incident of assistance becomes immaterial so long as there is a conscious wish of the testator that his hand should make the signature. Brehony v. Brehony, 289 Pa. 267, 137 A. 260 (1927).

In accord is Fritz v. Turner, 46 N.J. Eq. 515, 22 A. 125 (1890).

The testator’s intent is not challenged in this appeal. His signature on the will is clearly legible. Also, it appears that he was assisted in subscribing his signature in other business affairs. Since two witnesses properly signed the will, the statutory requirements of § 60-403, supra, are met.

Affirmed.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Vernon BRIDGES v. A. E. HEMMER, as Father and Next Friend of Steven HEMMER, and A. E. HEMMER, Individually
    73-279
    506 S.W. 2d 835
    Opinion delivered March 25, 1974

      Alex G. Streett, for appellant.

      Ike Allen Laws Jr., for appellee.
   Frank Holt, Justice.

Steven Hemmer, appellee, was injured in a motorcycle accident when struck by defendant appellant Bridges’ automobile. The jury returned a verdict for the appellant. After the jury rendered its verdict and was discharged, the foreman and another juror, who had remained, were observed to have in their possession some papers which the foreman delivered to the court. They were then questioned by appellees’ and appellant’s attorneys. The examination revealed that two of appellees’ requested instructions had been found by the jury in the jury room upon retiring for its deliberation during which the jury read them. It appears the instructions were inadvertently left there following a court conference. One of the instructions was a general verdict or a closing instruction which was given in substance as proffered by the appellees. The other was appellees’ comparative negligence instruction. Another was given which differed only in that it provided for recovery of the alleged damages by the appellee father in a representative capacity and individually. A subsequent proceeding was held wherein the court granted appellees’ motion for a new trial over appellant’s objection. We agree with the appellant.

In doing so we need not reach the propriety of the proceedings under Ark. Stat. Ann. § 43-2204 (Repl. 1964), which prohibits examination of a juror to establish grounds for a new trial except to show a verdict was arrived at by lot.

Our “new trial” statute, Ark. Stat. Ann. § 27-1901 (Repl. 1962), sets forth the following standard:

A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury or a decision by the court. The former verdict or decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party:
First. Irregularity in the proceedings of the court, jury or prevailing party, or any order of court or abuse of discretion, by which the party was prevented from having a fair trial.

Since both of the instructions found in the jury room were appellees’ requested instructions, we do not perceive any prejudice from the jury’s possession of appellees’ own instructions. Appellees have not demonstrated any irregularity affecting materially their substantial rights which prevented them from having a fair trial within the standards of § 27-1901, supra.

Reversed and remanded for entry of judgment on the verdict.


author: Carleton Harris, Chief Justice.

text:
    Frances L. YARBROUGH v. CHECKER CAB CO., Inc., Jimmy L. DIGGS and FIREMAN’S FUND AMERICAN INSURANCE COMPANIES
    73-267
    507 S.W. 2d 105
    Opinion delivered April 1, 1974

      Hobbs and Longinotti, for appellant.

      Barber, McCaskill, Amsler & Jones, for appellees.
   Carleton Harris, Chief Justice.

Appellant, Frances L. Yarbrough, instituted suit against Checker Cab Co., Inc. and Jimmy L. Diggs, alleging personal injuries sustained on July 17, 1971 due to the negligence of Diggs while acting within the scope of his employment as a driver for appellee, Checker Cab Co., Inc. Appellees answered, denying all material allegations of the complaint. Thereafter, appellant learned that the cab company carried no policy of automobile liability insurance on its vehicles, acting as a self-insured under the provisions of Ark. Stat. Ann. § 75-1488 (Repl. 1957) (a part of the Motor Vehicle Safety Responsibility Act) enacted in 1953, and thereupon amended her complaint naming her own liability insurance carrier, Fireman’s Fund American Insurance Companies, a party to the action under the uninsured motorist provisions of said policy. This last appellee filed a separate answer to the amended complaint, denying all material allegations, and further specifically denying that Diggs was an uninsured motorist. Thereafter, Fireman’s Fund filed a motion for summary judgment in the Garland County Circuit Court, supporting said motion by the deposition of Robert L. Jones, President of Checker Cab Co., Inc., wherein Mr. Jones stated, inter alia, that his corporation was a self-insurer and had obtained a certificate of self-insurance from the Revenue Department of the State of Arkansas on June 23, 1970. A copy of the certificate advising the cab company that it had qualified as a self-insured was also offered. The policy itself provides that the term “ ‘uninsured automobile’ shall not include *** an automobile or trailer owned or operated by a self-insurer within the meaning of any motor vehicle financial responsibility law, motor carrier law or any similar law.”

The court granted the summary judgment, and from such judgment, appellant brings this appeal.

Ark. Stat. Ann. § 75-203 (Repl. 1957), up until 1961, provided as follows:

“No license shall be issued for and no taxicab, automobile, or similar vehicle used for hire, shall be operated, or used in and upon the streets, roads, and highways of the State of Arkansas, within or without the corporate limits of any city or village, for the purpose of carrying passengers for hire, and it shall be unlawful to so operate such taxicab, unless there shall have been filed with the Commissioner of Revenue of the State of Arkansas, a liability contract of insurance or certificate of insurance, issued to the owner of such taxicab, which shall be substantially in the form of the standard automobile liability insurance policy in customary use, to be approved by the Commissioner of Revenue, and issued by an insurance company licensed to do business in the State of Arkansas, said policy to secure payment, in accordance with the provisions thereof, to any person, except employees of the owner, for personal injuries to such persons and for any damage to property, except property owned by, rented to, leased to, in charge of, or transported by the owner, other than baggage of passengers, caused by the operation of such taxicab, for the following amounts:
“As respects injuries to persons, to the extent of five thousand and no/100 dollars ($5,000.00) for the injury or death of any one (1) person and subject to that limit for each person; ten thousand and no/100 dollars ($10,-000.00) for each accident; and, as respects damages to property, one thousand and no/100 dollars ($1,000.00) for each accident. It is further provided, however, that in lieu of such policy of insurance such owner may file a bond to be signed by some solvent Surety Company licensed to do business in this State, which bond shall be in the form approved by the Commissioner of Revenue, and shall be conditioned for the payment of property damage and personal injuries, in the same manner and to the same extent herein provided in the case of the filing of insurance policy or policies. (Acts 1949, No. 485, § 1, p. 1369.)”

As shown, this statute was passed by the General Assembly of 1949.

We think the court erred in granting the summary judgment. and we do not consider that the Motor Vehicle Safety Responsibility Act (Ark. Stat. Ann. §§ 75-1401 — 1493 [Repl. 1957]) repealed Ark. Stat. Ann. § 75-203. In fact, Ark. Stat. Ann. § 75-1487, immediately preceding Ark. Stat. Ann. § 74-1488 (the self-insurers section relied upon by appellees) provides;

“Except for section 18 (§ 75-1418) and 74 (§ 75-1474, this act shall not apply with respect to any vehicle which is subject to the requirements oj existing laws oj this State requiring insurance or other security on motor vehicles.” [Our emphasis]

Equally important, in evidencing the intent of the General Assembly, is Ark. Stat. Ann. § 75-1489, which immediately follows the self-insurance section, and provides:

“This act (§§ 74-1401 — 75-1493) shall in no respect be considered as a repeal oj the. State motor-vehicle laws, but shall be construed as supplemental thereto. [Our emphasis]
“Act No. 160 of 1951 is hereby repealed except with respect to any accident, or judgment arising therefrom, or violation of the motor-vehicle laws of this State, occurring prior to the effective date of this act. (Acts 1953, No. 347, § 89, p. 955)”

If there could still be any possible doubt of the intent of the General Assembly, same is completely dissolved by the action of the legislature in 1961 when Ark. Stat. Ann. § 75-203 was amended by Act 473 of that year, such amendment making only three changes. These increased the amount for injury to one person from $5,000.00 to $10,000.00; increased the amount for each accident from $10,000.00 to $20,000.00, and with reference to damage to property, increased the amount from $1,000.00 to $5,000.00. In addition to the other sections mentioned, this amendatory legislation by the General Assembly in 1961, eight years after the passage of the “self-insurers statute”, has to be the “clincher” that the General Assembly never had any intention of taxicabs operating without insurance as provided by § 75-203. Since it is admitted that no insurance was carried on the vehicle involved in the accident mentioned herein, it follows that Checker Cab Co. and its driver, Jimmy Diggs, come under the category of “uninsured motorists”, and the court erred in granting the summary judgment.

In arcordance with what has been said, the judgment is reversed and the cause remanded to the Garland County Circuit Court with directions to proceed in a manner not inconsistent with this opinion.

       “a. Any person in whose name more than 25 vehicles are registered in this State may qualify as a self-insurer by obtaining a certificate of sell-insurance issued by the department as provided in subsection b of this section.
      “b. The department may, in its discretion, upon the application of such a person, issue a certificate of self-insurance when it is satisfied that such person is possessed and will continue to be possessed of ability to pay judgments obtained against such persons. Such certificate may be issued authorizing a person to act as a sell-insurer for either property damage or bodily injury, or both.
      “c. Upon not less than 5 days’ notice and a hearing pursuant to such notice, the department may upon reasonable grounds cancel a certificate of self-insurance. Failure to pay any judgment within 30 days after such judgment shall have become final shall constitute a reasonable ground for the cancelation of a certificate of self-insurance. (Acts 1953, No. 347 § 88, p. 955.)”

       Checker Cab admitted in its answer to the amended complaint that the cab driven by Diggs on July 17, 1971, and involved in the accident, was an uninsured automobile, and Mr. Jones said that none of his 27 or 28 taxicabs were paid for, all being subject to mortgage or lien, “every one of them.”

       This copy appears in the abstract, it being stated that it was inadvertently omitted from the record.

       These sections have nothing to do with the issue in this case, the first section referring to reporting accidents and the last excepted section permitting the owner of a motor vehicle to give proof of financial responsibility on behalf of his employee, or member of his immediate family or household in lieu of the furnishing of proof by such other person.

       lAct 160 of 1951 was a previous financial responsibility law.


text:
    Jack R. MOUNTS v. BECHTEL Corporation and INDUSTRIAL INDEMNITY Co.
    73-281
    507 S.W. 2d 99
    Opinion delivered April 1, 1974

      Williams & Gardner, for appellant.
    Smith, Williams, Friday, Eldredge & Clark, by: Boyce R. Love, for appellees.
   Carleton Harris, Chief Justice.

This is a workmen’s compensation case. Appellant, Jack R. Mounts, was employed by the appellee, Bechtel Corporation, which, together with its insurance carrier, Industrial Indemnity Company, is an appellee in this case. He had previously worked in the labor and construction field since 1936, and had injured his back in 1960 or 1961. As a result of that injury, he had undergone back surgery and had received a 33 per cent disability rating. Subsequent thereto, he had worked on other construction jobs, and testified that up until the time he commenced his employment with Bechtel, had only missed a week of work, due to exhaustion, in 1967. Under his employment with Bechtel, he acted as a crew foreman, the duties being mainly supervisory, a Union rule prohibiting a foreman from engaging in the actual labor; however, he testified that on particular occasions he would help members of the crew if they were in a “bind”. Mounts testified that about a month or month and a half prior to May 2, 1971, his back had bothered him, and he had received two treatments on the job for back pain, one during his last week of work. The witness said that during this last week on the job, he worked overtime; that he left work on Friday, April 30, 1971, intending to return on Monday; he went to a chiropractor on Saturday, May 1, for x-rays, and early Sunday morning, May 2, he was sitting at the table drinking coffee with his legs crossed when he suddenly sneezed, falling to the floor and being unable to move. Mounts was first taken to a hospital at Dardanelle and subsequently sent to Little Rock where he was treated by Dr. Thomas M. Fletcher, a neurosurgeon of the latter city. A claim was filed for compensation which was controverted. The referee held that Mounts was entitled to benefits, awarding him reasonable medical bills and total disability benefits in the amount of $49.00 per week, commencing as of May 3, 1971. On appeal to the full commission, this award was reversed, the commission finding that Mounts had failed to prove by a preponderance of the evidence that he sustained an accidental injury arising out of, and in the course of his employment. On appeal to the Pope County Circuit Court, this finding was affirmed and from the judgment so entered by the court, appellant brings this appeal. For reversal, it is simply urged that “The court erred in sustaining the finding of the full commission in that there was substantial and competent evidence to show that claimant’s injury arose'out of, was aggravated by and directly associated with his employment.”

As we have said in numerous opinions, the law being so established as to require no citation of authority, we are here, on appeal, only concerned with whether there was substantial evidence to support the finding of the commission, and it is not within our province to determine the preponderance of the evidence. Appellant largely relies upon the testimony of Dr. Fletcher who testified by deposition relative to the treatment received by Mounts. The doctor stated that there was not particular instance, or episode, of back injury related to him by Mounts as occurring on the job and Fletcher testified that any bending would aggravate the prior back problem from which Mounts had suffered. Dr. Fletcher did not have any of the medical reports concerning prior back operations and only relied upon the history related to him by Mounts.

Claimant testified that he had received back treatments on the job but this testimony was disputed by the company nurse, Marcella Joseph. Mrs. Joseph testified that she was employed by Bechtel as an industrial nurse, having been so employed for three years, and had spent all of this time at the Nuclear 1 Site near Russellville (where Mounts had worked). She said that she had given him medical aid on a number of occasions, and that she had a record of all treatments, keeping a daily log concerning each man on the job; that there was a card listing all injuries and treatments given each individual. Mrs. Joseph said that Mr. Mounts’ date of first injury was on November 25, 1969, and last injury on January 4, 1971; that these injuries were abrasions and some were classed as industrial and some non-industrial. The log reflected which type of injury had occurred and she said that Mounts had received industrial and non-industrial aid. According to the witness, he only mentioned a back ailment one time. She asked if he was having pain, “And, he said, yes that he’d hurt his back and I offered to give him a heat treatment on his back and he said he didn’t believe that it would heíp and then he said something like, ‘Marcy, it didn’t happen out here so I’m not going to have it treated out here.’” She said that she did give him heat treatment on December 30, 1970 for pain in his hip and there was a notation “non-industrial”. She also stated that he had told her of his past back surgery.

It is strongly argued that the evidence reflects that the condition of Mounts was aggravated by his employment. The commission recognized that aggravation of a pre-existing condition is compensable; however, it correctly pointed out that a pre-existing condition resulting in disability is compen-sable only if caused by an accidental injury that arises out of and in the course of the employment, and it was the position of that tribunal that Mounts did not establish that his disability was work connected, the commission specifically pointing out that he did not report to his supervisor that he was having back trouble with the job; that the nurse denied that she had given him any back treatments; that he had left on Friday intending to return to work on Monday, and that the substance of Dr. Fletcher’s testimony was that any bending (wherever taking place) would aggravate claimant’s condition.

We are unable to say that there was no substantial evidence to support the finding of the commission.

Affirmed.


author: George Rose Smith, Justice.

text:
    Oscar William SMITH v. STATE of Arkansas
    CR 73-172
    507 S.W. 2d 110
    Opinion delivered April 1, 1974

      Buford Gardner, Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Richard Mattison, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant Smith, charged with first-degree murder in the shooting of Robert Ray, testified that he acted in self-defense. The jury rejected that theory and found Smith guilty of second-degree murder, imposing a 21-year sentence.

The evidence is amply sufficient to support the verdict. In fact, the proof would have supported a first-degree conviction. The decedent, 80, was 24 years older than Smith and some 20 pounds lighter. On the afternoon of the homicide a heated argument developed between the two men, about who was to have a quantity of grass clippings that Ray was raking together. There were several eye-witnesses to the quarrel. One of them testified that during the altercation Smith said that he was going to go and get a gun and shoot the old man.

According to the State’s proof. Smith did go and get a .22-caliber pistol, return to the scene, and renew the argument. In the course of the dispute Ray started toward Smith, w'ho then shot Ray with the pistol, one of four wounds being fatal. The jury evidently found from the conflicting evidence that Ray was not threatening Smith with a rake, as Smith claimed, and that Smith could easily have left the scene in safety if he had chosen to do so. We need not narrate the testimony in further detail to show that the jury could find all the elements of murder to be present.

Complaint is made of the prosecution’s failure to include the name of Mrs. Zeb Horton upon the original list of witnesses furnished to defense counsel. No bad faith is attributed to the prosecuting attorney, who did not learn of this witness until the night before the trial began. He immediately informed the defense of the identity of the new witness, who did not testify until the second day of the trial. There was no plea of surprise, and Mrs. Horton’s testimony was merely cumulative. No prejudicial error is shown. King v. Cardin, 229 Ark. 929, 319 S.W. 2d 214 (1959).

Similarly, we find no reversible error in a remark made by Murl Lewis, a member of the jury panel, on voir dire. Lewis had stated that he had formed an opinion, on hearsay, that might influence his verdict. Upon further questioning he said: “I feel I couldn’t be fair to the defendant.” Defense counsel asked for a mistrial, which was refused. Even if the other members of the panel understood the remark, which appears to be doubtful, no prejudice appears. In fact, similar statements are so frequently made spontaneously by prospective jurors that in many cases it would be impossible to empanel a jury if such remarks mandatorily required the granting of a mistrial. Needless to say, Lewis did not serve on the jury that was ultimately selected.

Affirmed.


author: Lyle Brown, Justice.

text:
    Horace E. RODGERS v. Mrs. Cameron R. LYON & The HEBER SPRINGS SAVINGS & LOAN Association
    73-284
    507 S.W. 2d 95
    Opinion delivered April 1, 1974

      C. E. Blackburn, for appellant.

      Ilnyt Thomas, for appellee.
   Lyle Brown, Justice.

This is a dispute between relatives over the right to the proceeds from the sale of a house and some lots in Heber Springs. The Heber Springs Savings & Loan Association holds the disputed funds in escrow subject to the outcome of this suit. The trial court held that Mrs. Cameron R. Lyon was acting under misapprehension, pressure and undue influence when she signed an agreement whereby Horace E. Rodgers’ father was entitled to a share of the proceeds of sale.

Edgar Rodgers, Maude O’Neal and Sue Mitton, were close relatives and all elderly; they lived together at property they owned on Conway Street in Heber Springs. They had a close relative, Mrs. Cameron Lyon, who lived in Chicago, and who visited them quite often. In about 1968 Mrs. Lyon decided to move to Heber Springs. The elderly trio executed a deed to their property to Mrs. Lyon, reserving unto themselves a life estate in it.

Mrs. Lyon shortly found a house on Front Street in Heber Springs which she liked very much and bought it. She proposed that the three relatives move into the house with her, which they did. The trio relinquished their life estates in the Conway Street property and in return Mrs. Lyon conveyed to them each a life estate in the newly acquired property on Front Street. (For some unexplained reason the trio subsequently executed a warranty deed to Mrs. Lyon, subject to their life estate. That instrument was dated Feb. 23, 1970.) Mrs. Lyon then sold the Conway Street property for 17,000 and testified she invested it in the Front Street property.

On August 17, 1972, Mrs. Lyon executed this agreement:

Whereas, Sue Mitton and Edgar Rodgers have furnished the sum of $7,000 for the purchase of the following property, to wit:
Lots 7, 8, 9, 10 and the West Half of Lot 11, in Block 3 of DICKSON ADDITION to the City of Heber Springs, Arkansas, [Front Street property]
which property was purchased in the name of Cameron R. Lyon, and,
Whereas, the aforesaid Cameron R. Lyon desires to insure that the aforesaid Sue Mitton and Edgar Rodgers shall receive the money which was furnished by them in the purchase of the aforesaid property, in the event the property is sold. Now Therefore,
In the event the aforesaid property is sold by Cameron R. Lyon, her heirs, executors or assigns, it is agreed that the sum of $7,000 shall be paid out of the proceeds thereof to Sue Mitton and Edgar Rodgers, each to receive $3,500.
It is further agreed that this instrument may be recorded and act as a lien on said property.
This agreement is binding on the heirs, executors and assigns of Cameron R. Lyon.
The instrument was signed, notarized and recorded.

Edgar Rodgers died on September 2, 1972, and his only heir, a son, Horace E. Rodgers, brought this suit. He alleged that Mrs. Lyon had sold the subject property and had failed to pay over the said $3,500 mentioned in the agreement.

In her answer to the complaint, Mrs. Lyon asserted that the agreement was for the purpose of giving assurance to the surviving life estate tenants a portion of the sale price should the property be sold prior to their death; that the life estate of Edgar R. Rodgers expired upon his death; and that the agreement did not enlarge or enhance the life estate held by Edgar R. Rodgers.

From best we can tell from the record appellant Rodgers introduced the August 1972 agreement which we have recited and rested his case. There was also a stipulation that The Heber Springs Federal Savings & Loan Association was holding $3,500 in escrow subject to the orders of the court. Counsel for Mrs. Lyon introduced by stipulation the deeds tp which we have alluded and the deposition of Mrs. Lyon. We have listed all the evidence in .the case.

In substance, the trial court held:

That the agreement purporting to create a lien did not enlarge the life estate of Edgar Rodgers, but was an agreement only to pay him S3,500 if the property was sold during his lifetime;
That Edgar Rodgers died September 2, 1972, extinguishing his lifetime interest and vesting the remaining interest in Mrs. Lyon;
That the said property was sold after the death of Edgar Rodgers and the S3,500 is now in escrow;
That the decedent father of Edgar Rodgers lived with Mrs. Lyon, and was cared for by her and that for this service the defendant should be entitled to some consideration therefor;
That Mrs. Lyon executed the agreement under misapprehension, pressure and undue influence.
That the burden of proof was on Rodgers and he failed to prove his claim by a preponderance of the evidence. That the testimony of Mrs. Lyon is unrefuted except by verified pleadings and statements of counsel.That Rodgers has offered no positive evidence in the trial to contradict the testimony of Mrs. Lyon; and,
That the agreement constitutes a cloud on the lands involved and should be removed and candelled.

We have tried to ferret out of a rather rambling deposition of Mrs. Lyon that part of her testimony which gives her version of the executing of the August 1972 agreement:

Her mother, Maude O’Neal, one of the trio living in the Conway Street property, furnished the money for its purchase ($7,000) but the deed contained the names of Maude O’Neal, Edgar Rodgers, and Sue Mitton. On one of Mrs. Lyon’s visits to Arkansas, the trio asked if they could deed the place over to her, reserving a life estate; they felt that Mrs. Lyon would take care of them. Later she bought the property on Front Street, purchasing same with her own money. Shortly after the purchase the trio moved in with her. Mrs. Lyon got the $7V000 from the sale of the Conway Street property, which she said she used in improving the Front Street property. Then the deeds were executed which vested in the trio a life estate in the Front Street property. That transaction was in consideration of the trio having relinquished their life estates in the Conway Street property.

As to the agreement of August 17, 1972: “You know this whole thing was written up incorrectly, and I was too sick at the time to realize it, and I’ll tell you the truth, the very next day I didn’t remember having ever signed any such agreement, and I called Judge Olmstead up and complained about it”. Her mother had died about a week before. Shortly after the signing she went to the hospital due to a heart condition. Edgar Rodgers died Sept. 2, 1972.

Her mother, Maude O’Neal, wanted Mrs. Lyon to give Edgar Rodgers and Sue Mitton S3,500 each, representing the total amount which Mrs. Lyon received from the Conway Street property. Some of her sisters wanted Mrs. Lyon to do the same thing. Mrs. Lyon told her mother she would grant her request but Edgar and Sue would have to wait until she, Mrs. Lyon, sold the house on Front Street. She did not think she was establishing a lien on the Front Street property. “I was too sick to read it thoroughly enough to see what it really stated.” She said she was practically “brow-beaten” by her two sisters from Spain to sign the instrument.

At some later date Mrs. Lyon left Heber Springs and went to live at the Jacksonville Convalescent Center. Sue Mit-ton did not want to live in the big house on Front Street by herself so Mrs. Lyon sold the house for approximately $23,-000.

The chancellor decided the case on an erroneous basis. When appellant introduced the unambiguous agreement of August 17, 1972, the burden fell on appellee to show that the instrument was executed under misapprehension, pressure and undue influence. There is no contention that the father of appellant exerted any undue influence. Nor is there any proof that appellee took any action to have the contract cancelled. The only action she took, according to her own testimony, was to call her lawyer, who drafted the agreement, and make her objection known. We do not think appellee met the burden of proof yvhich rested with her, especially in view of the rule of law that she is presumed to have understood the contract. Connelly v. Beauchamp, 178 Ark. 1036, 13 S.W. 2d 28 (1929). Additionally, there is no merit in the argument that Mrs. Lyon’s testimony stood undisputed, because she is one of the litigants. Davis v. Oaks, 187 Ark. 501, 60 S.W. 2d 922 (1933). We also note that there was not sufficient evidence to support the finding of the chancellor that appellee took care of appellant’s father.

The cause is reversed and remanded with directions to enter judgment in favor of appellant.


author: John A. Fogleman, Justice.

text:
    Billy R. HAYES and Betty J. Hayes v. FIRST NATIONAL BANK of Memphis, Tennessee
    73-255
    507 S.W. 2d 701
    Opinion delivered April 1, 1974
    [Rehearing denied May 6, 1974.)

      Paul K. Roberts, for appellants.

      Haley & Claycomb, for appellee.
   John A. Fogleman, Justice.

The question presented by this appeal is whether “late charges” made on an installment purchase contract and a charge made for an extension agreement voided the entire debt for usury. We conclude that they did not.

Billy R. and Betty J. Hayes, husband and wife, purchased a mobile home from C. & G. Mobile Homes at Camden. After making a down payment, the balance of the purchase price to be financed amounted to $4,399 to which was added charges for insurance which brought the total to $5,010.40 to be paid in 84 equal installments. When the maximum time price differential allowable was added, the total to be paid under the contract amounted to $6,985.40, which was to be paid in installments of $83.16. Incorporated into the agreement was a ciause by which the buyers agreed to pay a default charge equal to 5% of any payment in arrears for more than five days or $5, whichever was the lesser, but in no event to exceed the maximum default or delinquency charge permitted by law.

The contract was assigned to the First National Bank of Memphis, which furnished the forms on which it was made out. There were delinquencies in 24 payments which resulted in the making of “late charges” totaling $99.56. Appellants attempted to justify their tardiness by their alleged inability to obtain delivery of insurance policies covered by the contract or to have defects repaired by the seller or manufacturer of the mobile home. On January 2. 1970, when two installments were past due appellee granted Mr. and Mrs. Hayes an extension for which it charged $41, which was one-half of 1% of the balance then due. It appears that “late charges” were debited to the Hayes account to be collected, without interest, after all other payments had been made. The extension agreement charge was paid prior to February 25, 1970. In effect, the extension agreement postponed the entire schedule of payments for 60 days, i.e., the maturity date of each subsequent payment was 60 days later than it otherwise would have been.

After a considerable period of delinquency, the bank instituted this suit to replevy the mobile home. Appellants answered, alleging that the conditional sales contract was void and unenforceable for usury, and filed a bond to retain the mobile home. In response to an interrogatory served upon them by the bank, the Hayeses stated that they contended the entire contract was usurious because no insurance policies were issued and because of the “late charges.”

Judgment was rendered for $3,089.69 with interest from the date of the judgment (February 6, 1973) and attorney’s fees and cost. The amount of the judgment was the balance of the account after unearned premiums from insurance were credited. This amount did not include the unpaid “late charges.”

Appellants state one point for reversal. It is:

The court erred in failing to dismiss the plaintiff’s case on the ground of usury.

Appellants argue that, since payments of $83.16 were delinquent for a total of only 1,079 days, the maximum legal charges would have been interest at 10% per annum on $83.16 for that period, which they calculate as $24.57. In considering this matter, we should say, at the outset, that the burden of showing that the contract was usurious rested upon appellants. Nineteen Corporation v. Guaranty Financial Corp., 246 Ark. 400, 438 S.W. 2d 685; Geyer v. First Arkansas Development Finance Corp., 245 Ark. 694, 434 S.W. 2d 301. In Gever, we said, quoting from Sawyer v. Dickson, 66 Ark. 77, 48 S.W. 903, that the court should not presume a contract to be usurious. Actually, usury will not be presumed, imputed or inferred where an opposite result can be reached. Peoples Loan & Investment Co. v. Booth, 245 Ark. 146, 431 S.W. 2d 472; Universal CIT Corp. v. Hudgens, 234 Ark. 1127, 356 S.W. 2d 658; Brown v. Fretz, 189 Ark. 411, 72 S.W. 2d 765; Brittian v. McKim, 204 Ark. 647, 164 S.W. 2d 435. In determining whether a contract is usurious, it must be viewed as of the time it is entered into and it must be presumed that it will be performed according to its terms. Sloan v. Sears, Roebuck & Co., 228 Ark. 464, 308 S.W. 2d 802; Harris v. Guaranty Financial Corp., 244 Ark. 218, 424 S.W. 2d 355; Foster v. Universal CIT Corp., 231 Ark. 230, 330 S.W. 2d 288, 75 A.L.R. 2d 1260; General Contract Corporation v. Duke, 223 Ark. 938, 270 S.W. 2d 918; Sager v. American Investment Co., 170 Ark. 568, 280 S.W. 654; Eldred v. Hart, 87 Ark. 534, 113 S.W. 213; 55 Am. Jur. 331, Usury § 12.

We have held that a “late charge” is in the nature of a penalty for delinquency and does not render the transaction usurious, even when provided for in the instrument evidencing it. Harris v. Guaranty Financial Corporation, supra; Carney v. Matthewson, 86 Ark. 25, 109 S.W. 1024. See also, Phipps-Reynolds Co. v. McIlroy Bank & Trust Company, 197 Ark. 621, 124 S.W. 2d 222. The rationale of these cases and others like them is that agreements for penalties to induce prompt payment are free from usury, because the buyer has it in his power to avoid the penalty by discharging the debt when it is due. Carney v. Matthewson, supra; Chaffe & Sons v. Landers, 46 Ark. 364; Morgan v. Rogers, 166 Ark. 327, 266 S.W. 273. This is not to say that an agreement of this sort will not be declared usurious if it is shown to be a mere contrivance to avoid usury and the real intention is a loan or forbearance of money and the taking of more than legal interest. See Phipps-Reynolds Co. v. McIlroy Bank & Trust Company, supra; Morgan v. Rogers, supra; Chaffe & Sons v. Landers, supra; Grider v. Driver, 46 Ark. 50. But such an intention must first be made manifest from the agreement itself or from extraneous proof. There is nothing here to give the slightest indication that the charges were provided for in this contract with any such intention and the limitation placed on their amount would imply a contrary intention. If the penalty was too severe, appellants were relieved of it by the court, and appellee did not appeal.

The payment for the extension is a different matter. There can. be no doubt that it is a charge for the forbearance of money, which simply means that the person to whom it is due foregoes payment in cash and waits for all or part of his money until a later date. Sloan v. Sears, Roebuck & Co., 228 Ark. 464, 308 S.W. 2d 802; 91 C.J.S. 598, Usury § 23; see also, Humphrey v. McCauley, 55 Ark. 143, 17 S.W. 713. As such, it is to be treated as interest in testing for usury. See Humphrey v. McCauley, supra. See also, Budget Plan of Baton Rouge v. Talbert, 276 So. 2d 297 (La. 1973). We have not attempted to apply the test mathematically, however, because, even if the extension agreement was usurious, the original contract is not tainted by it, because the facts and circumstances existing at the time that contract was entered into, rather than the subsequent actions of the parties, determine whether it is usurious. Humphrey v. McCauley, 55 Ark. 143, 17 S.W. 713.

This being the case, there could be no justification for dismissing appellee’s suit on the original contract, and the judgment must be affirmed.

Byrd.J., dissents.


author: J. Fred Jones, Justice.

text:
    Russell JEFFERS v. AMERICAN PIONEER LIFE INSURANCE Company, MILLER BUICK Company & GENERAL MOTORS ACCEPTANCE Corporation
    73-262
    507 S.W. 2d 713
    Opinion delivered April 1, 1974
    [Rehearing denied May 6, 1974.]

      Paul K. Roberts, for appellant.

      Frierson, Walker, Snellgrove & Laser, by: G. D. Walker, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Russell Jeffers from a chancery court decree granting summary judgment in favor of American Pioneer Life Insurance Company on a credit insurance policy issued to Jeffers in connection with his purchase of a Buick automobile.

On February 21, 1972, Jeffers filed his petition in chancery alleging that on November 11, 1969, the Educators and Professional Life Insurance Company of Little Rock executed and delivered to him an insurance policy containing a total disability provision whereby the company agreed to pay Miller Buick Company the unpaid balance on a Buick automobile Jeffers had purchased under a conditional sales contract payable at $91.76 per month and subsequently assigned to General Motors Acceptance Corporation. The policy was made an exhibit to the petition and Jeffers alleged that sometime after November 11, 1969, the appellee, American Pioneer Life Insurance Company, assumed all liability to Jeffers under the policy issued by Educators. Jeffers then alleged that he suffered a heart attack on August 30, 1971, and on that date became disabled within the meaning of the insurance policy. He then alleged in substance, that all the monthly payments due under the policy had been paid with the exception of the first two monthly payments following the onset of his disability, and he prayed judgment for $201 past due and for specific performance of the insurance contract.

In answer to interrogatories propounded to American Pioneer, it answered that in 1970 it assumed liability under the life insurance policies issued by Educators.. Miller Buick Company as first beneficiary under the policy and its assignee GMAC were made parties defendant under orders of the chancellor following a demurrer filed by American Pioneer. American Pioneer then filed an answer admitting its liability under the policy and admitting Jeffers’ disability within the terms of the policy as alleged in his petition. American Pioneer then alleged that the insurance contract contained a sixty day waiting clause and that it did not owe the monthly payments for the sixty day waiting period. By way of cross-complaint. American Pioneer interpleaded the amount it admitted it then owed into the registry of the court.

On the basis of the pleadings, admissions and exhibits, American Pioneer filed a motion for summary judgment on October 5, 1972, and on January 22, 1973, Jeffers filed an amendment to his original petition alleging that when the contract of insurance was entered into on November 6, 1969, between him and Educators, that J. H. Miller was acting as a general agent for the insurance company and that J. H. Miller, or a salesman acting for him, represented to Jeffers that the policy would be in force and would pay all installments on the conditional sales cpntract from the onset of his disability. He alleged that he did not read the policy but relied on the representations of Miller as to what the insurance policy would contain, and in his amendment he prayed that the insurance contract be reformed to state the true contract entered into by the parties on November 6, 1969. American Pioneer again filed motion for summary judgment and the motion was granted.

On appeal to this court Jeffers contends that the chancellor erred in granting the motion for summary judgment and dismissing the complaint. We agree with American Pioneer that the chancellor did not err.

It is clear from the pleadings, admissions and exhibits in the record that Jeffers obtained his policy at the time he purchased the automobile on November 6, 1969, and did not question its provisions until after the liability under it was assumed by American Pioneer in 1970, and after he became disabled on August 30, 1971, and claim was filed. As a matter of fact, it would appear that Jeffers did not question his policy provisions until after he filed his original petition for specific performance on February 21, 1973.

The exact language, pertaining to his failure to read the policy, is set out in Jeffers’ amendment as follows:

“. . . the plaintiff did not read the contract of insurance sold to him by J. H. Miller but relied entirely upon the representations of the said agent of Educators and Professional Life Insurance Company as to the provisions the said policy was to contain.”

Mr. Jeffers’ amendment praying reformation of the contract was still against American Pioneer and not against Educators or its agent Miller. Even so, Mr. Jeffers did not allege a mutual mistake, nor did he allege that Miller or his salesman said or did anything of a fraudulent nature to cause him to not read his policy; he simply said he relied on the statement of Educators’ agent, Miller, or one of his salesmen, as to the provisions the policy was to contain. Jeffers sued American Pioneer first for specific performance of the contract it had assumed, and then to reform the contract which had been assigned to it, on the ground that the written contract so assigned did not reflect the true agreement entered into between Jeffers and American Pioneer’s assignor.

The pertinent provisions of the policy, filed as an exhibit to the complaint, appear as follows:

“I hereby apply to Educators and Professional Life Insurance Company, Little Rock, Arkansas for a Term policy of life insurance for the amount and for the period stated below.”

The policy then sets out the name, address and age of the insured; the names of first and secondary beneficiaries; the total period and amount of insurance with stated premium. The policy provisions then continue as follows:

“Monthly Benefit for Period Waiting Period
Total Disability
$91.76 ^6 months 60 days”

The policy then states that the disability benefits are not retroactive to the first day and the language of the policy continues as follows:

“The Company agrees to pay in the manner hereinafter set forth the amount of insurance requested in the application above . . .
This policy is issued in consideration of the above application, which is hereby made a part hereof, and of the payment of the required premium to the Company’s Agent . . . and is subject to the terms and provisions set forth on the reverse side hereof, all of which are made a part hereof.
IN WITNESS WHEREOF, the Educators and Professional Life Insurance Company, Little Rock, Arkansas, has caused this policy to be executed by its duly authorized officers.
I hereby certify that the facts and answers recorded in the above application are fully complete and believed by me to be true and that the applicant, in my opinion, is in good health.
11-6-69 /S/J. H. Miller Tilman Busters
Date Company Agent President
I HEREBY CERTIFY that I have made true and complete answers to all the questions contained in this my application for insurance and I agree that they shall form a basis and consideration for the insurance for which I hereby apply, and I further certify that I signed my name hereto in the presence of the Company’s Agent who asked me all the questions enumerated above.
I AM NOW IN GOOD HEALTH
/S/ Russell Jeffers Insured’s Signature”

Under a section of the policy designated “General Terms and Provisions” appears language as follows:

“This policy constitutes the entire contract. No agent shall have the power of authority to waive, change or alter any of the terms or conditions of this policy.”

Under the “Total Disability Benefits Provisions” of the policy appears language as follows:

“If the insured shall become totally $nd continuously disabled . . . the Company will pay after the number of days in the waiting period, a daily benefit ... for Total Disability specified in the schedule for the remaining number of days of such disability or for the unexpired term of the policy, whichever is the shorter period.”

Thus, it is clear from the face of the policy that Jeffers must have received his insurance policy as a result of his written request contained in, and made a part of, the written contract he entered into with Miller as an agent for Educators and Professional Life Insurance Company, and at the time he purchased the Buick automobile. Jeffers alleges that he relied on statements made by Miller or his salesman as to what the policy would contain, but his written and signed application would indicate that the insurance company relied on the written statements and requests made by Jeffers as to the nature, amount and provisions of the insurance desired and as set out in the written contract signed by both Jeffers and Miller. It would appear that Jeffers was bound to have read the pertinent portions of the contract if he read the application he signed, because the pertinent provisions of the contract were embodied and clearly set out in the application.

It .is, of course, a well-settled rule of law that before a w'ritten contract can be reformed it must appear that it fails to express agreement of the parties because of mutual mistake or mistake on one side and fraud and inequitable conduct on the other. Weiss v. Turney, 173 F. 2d 617. We shall not explore the case law relative to failure to read a written contract however, for we rest our conclusion on another ground that the decree must be affirmed.

There is no evidence that the appellee American Pioneer had any notice of the alleged oral representations made to Jeffers by Miller when it assumed Educators’ liabilities under the written insurance contract. In Williston on Contracts, 3rd ed., § 1548, is found a statement as follows:

“Nor will equity reform a contract where acquired rights of bona jide purchasers for value would be disturbed.”

Then, quoting from cases, Williston says:

“ ‘It is an almost universal rule of equity not to grant relief by way of reformation to the injury of innocent third persons such as bona fide purchasers, lien holders and others who without notice have acquired intervening or vested rights and who cannot be placed in statu quo. It is an unalterable rule of equity that such an innocent third person will not be affected by a latent equity, and in that respect the equity to reform stands on the same footing with any other equity.’ ”

In the early case of Davidson v. Davidson, 42 Ark. 362, also cited by Williston, an attempt was made to cancel or reform an instrument for conveyance of land upon the alternative grounds that either it was a forgery or that there was such a mistake as to require reformation. The land was conveyed to a third party under a description which was under attack. In that case this court said:

“It is obvious that if there was any mistake on George W. Davidson’s part, as to the contents of the instrument he signed, it was the result of his carelessness, and his confidence in Matthew Q., his uncle. He says his uncle told, him at the time that the instrument did not mean to include the lands which Jackson Davidson had conveyed in his lifetime, only those belonging to the estate, and that he signed hastily, in the bustle of business, and without examination.
That might be ground of relief against M. O., but not against innocent purchasers from him for value, who relied upon recorded title. It is not a case of mutual mistake of facts, as if both parties had supposed an instrument to express or omit something which it did not, but it would be, if the allegations were true, a case of fraud by misrepresentation. In no view, however, would one suffering from such mistake or fraud have an equity for .relief from the effects of his carelessness to the detriment of a subsequent purchaser for value, without notice.”

While it has been held that the inclusion in a deed of land not intended to be conveyed, either through careless execution of the deed or through the fraudulent misrepresentations of the grantee, is ground for relief against the grantee, it is not ground for relief against a subsequent purchaser for value without notice. Davidson v. Davidson, 42 Ark. 362. See also Adams v. Edgerton, 48 Ark. 419, 3 S.W. 628.

In Brodie v. Skelton, 11 Ark. (6 Eng.) 120, a bill brought to correct a mistake in the description of lands conveyed in trust, and to divest the title acquired by one of the defendants subsequent to the execution of the trust deed, charged that the debtor, after conveying the land in trust, by an absolute deed conveyed to another, who in turn conveyed to defendant's grantor, by whom it was subsequently conveyed to defendant, the court held that no decree could be rendered against defendant without making his grantor a party.

The decree is affirmed.


author: Conley Byrd, Justice.

text:
    CURTIS MATHES OF ARKANSAS, Inc. and NORTHWESTERN NATIONAL INSURANCE GROUP v. Angie SUMMERVILLE and LIBERTY MUTUAL INSURANCE Company
    73-248
    507 S.W. 2d 108
    Opinion delivered April 1, 1974
    Laser, Sharp, Haley, Young & Boswell, P.A., for appellants.

      Eubanks, Files & Hurley and Wright, Lindsey & Jennings, for appellees.
   Conley Byrd, Justice.

The Workmen’s Compensation Commission found that appellee Angie Summerville was permanently partially disabled in the amount of 25% to the whole body as a result of her accident on February 2, 1971. The circuit court affirmed. For reversal appellants, Curtis Mathes of Arkansas, Inc. and Northwestern National Insurance Group, contend:

“I. The Commission erred in not holding appellee, Liberty Mutual, liable for the entire award.
II. The Commission erred in refusing to equally prorate the award between the two insurance carriers.
III. There is no substantial evidence to support the Commission’s finding of a twenty-five per cent permanent partial disability.”

POINT I & II. The record shows that Mrs. Summerville received an injury on July 1, Í970, from which she did not return to work until November 30, 1970. She continued to perform light work until February 1, 1971. On February 2, 1971, she sustained another injury while attempting to keep a stack of boards from falling on her. Liberty Mutual Insurance Company was the compensation carrier at the time of the July 1970 injury. Northwestern National Insurance Group was the compensation carrier at the time of the February 1971 injury.

All of the doctors agree that Mrs. Summerville’s principal difficulties arise from coccygodynia or inflammation of the tailbone. Dr. Joe K. Lester examined Mrs. Summerville following her July 1970 injury and again following her February 1971 injury. He stated that about 50% of the coc-cygodynia cases were related to trauma and about 50% were developmental. He found evidence of coccygodynia following the July 1970 injury. It was his opinion that Mrs. Summer-ville’s coccygodynia was caused by neither the July 1970 nor the February 1971 injury.

Dr. Harold H. Chakales examined and treated Mrs. Summerville following the February 1971 injury. When he considered the fact that Mrs. Summerville returned to work following the July 1970 injury and worked from November 30th to February 2nd and that she was thereafter unable to work because of pain, he was of the opinion that the February 2nd injury either caused the coccygodynia condition or aggravated it.

When we consider the evidence in the light most favorable to the findings of the commission as we must do on appeal, we are unable to say that there is no substantial evidence to support the finding of the Commission that the February 1971 injury was a separate and distinct injury rather than a recurrence of the condition caused by the July 1970 injury.

POINT III. We cannot say that there is no substantial evidence to support the Commission’s finding that Mrs. Summerville received a permanent partial disability of 25% to the whole body. The doctors admitted that coccygodynia is painful and Dr. Chakales not only found objective symptoms but stated that the pain could be so severe that one could be unable to work. Mrs. Summerville testified that the pain was so severe that she could not work, and that the pair! also interfered with relations with her husband. Her husband testified that she could not do her housework, she could not drive a car and that sex relations were not normal following the February 2nd injury.

Affirmed.


text:
    J. N. McKNIGHT v. Charles NEWKIRK
    73-283
    507 S.W. 2d 98
    Opinion delivered April 1, 1974

      Murphy, Carlisle & Taylor, by: Robert R. White, for appellant.

      Estes, Storey & Estes, by: William A. Storey and Peter G. Estes, Jr, for appellee.
   Conley Byrd, Justice.

The issue here is whether a person prosecuted in a Mayor’s court for violation of a municipal ordinance is entitled to take a change of venue under Ark. Stat. Ann. § 22-725 (Repl. 1962), to a municipal court. Appellee Charles Newkirk, who was charged in the mayor’s court of West Fork, Arkansas, with violation of a zoning ordinance, obtained a writ of mandamus in the circuit court to compel appellant, J. N. McKnight, mayor of West Fork, to transfer the venue to the Fayetteville Municipal Court. We agree with appellant that the trial court erroneously interpreted the statute.

A reading of Ark. Stat. Ann. § 22-725, supra, will show that a change of venue is required only when a civil or criminal case is brought before a justice of the peace. In Russell v. Miller, 253 Ark. 583, 487 S.W. 2d 617 (1972), we construed this statute as being applicable to a mayor’s court when it was exercising the jurisdiction of a justice of the peace. However Ark. Stat. Ann. § 43-1405 (Repl. 1964), gives mayor courts exclusive jurisdiction “. . .of all prosecutions and actions for infractions of the by-laws or ordinances of the city or town in which they are located. . .”. Consequently, it follows that the writ of mandamus issued by the trial court must be set aside.

Reversed and remanded.


author: Conley Byrd, Justice. John A. Fogleman, Justice, J. Fred Jones, Justice,

text:
    Robert VAULT v. STATE of Arkansas
    CR 73-168
    507 S.W. 2d 111
    Opinion delivered April 1, 1974

      James R. Howard, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings, Jr, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

For reversal of his second degree murder conviction, appellant Robert Vault contends among other things that the trial court erred in failing to suppress a statement allegedly made by him.

The record shows that appellant was 16 years of age at the time of his arrest. His mother employed appellant’s present lawyer to represent him. The lawyer went to the jailhouse shortly after appellant’s arrest — some time around 6:00 p.m. The lawyer waited around the jail and was present through two lineups in which no witness identified appellant. Counsel asked the police to either charge or release appellant, but they refused. After the last lineup and after appellant had apparently been bedded down for the night, the lawyer left with the understanding with the police that he would be back at opening hours the next morning to secure appellant’s release. When the lawyer arrived at the jail early the next morning he found that the officers had obtained a signed confession from appellant the night before within 15 to 20 minutes after counsel left the jailhouse. The officers testified that appellant on his own initiative volunteered to talk to the officers and stated that he did not want a lawyer. The officers did not attempt to contact the lawyer before taking the statement.

Appellant at the trial took the witness stand and denied that he made the statement written for him by the officers. When asked why he signed the statement he said:

“Yeah, I signed it or, you know, get hit, you know. I didn’t feel like getting hit, you know, that time of the day, so I signed it. ”

Other evidence shows that appellant had never been in jail before.

The officers first stated that the only evidence they had connecting appellant with the homicide was the confession of an accomplice. When it was pointed out that the written confession of the accomplice did not mention the appellant, the officers then suggested that the accomplice orally told the officers that appellant was at the scene of the crime.

The only evidence presented at the trial other than that of the accomplice which connected appellant with the crime was the alleged written confession.

The decisions of other courts generally disapprove of the police practice of interviewing prisoners in the absence of their counsel. See Mathies v. United States, 374 F. 2d 312, 316 n. 3 (D.C. Cir. 1967), where, in an opinion by [then] Circuit Judge Burger, it was pointed out that “The prospective application of Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), plainly will require that such interviews can be conducted only after counsel has been given an opportunity to be,present.” In upholding a confession in Reinke v. United States, 405 F. 2d 228 (9th Cir. 1968), the court laid much stress upon the fact that Reinke admitted that he initiated the interview. In so doing the court in Reinke indicated its disapproval of the practice.

We need not go so far as to hold that a confession by a prisoner in jail, who is represented by an absent attorney, can never be found to be voluntary and admissible. However, under the record here involving a 16 year old on his first arrest, we find from a totality of the evidence that the alleged confession should have been suppressed.

Appellant raises a number of other issues which we do not reach since they will not necessarily arise in a new trial nor on the same evidence.

Reversed and remanded.

Fogleman and Jones, JJ., concur

John A. Fogleman, Justice,

concurring. I could not agree to the reversal of this case if it were not for the fact that we abandoned the traditional “substantial evidence” test for review of questions of voluntariness of confessions in Harris v. State, 244 Ark. 314, 425 S.W. 2d 293, and committed ourselves to an independent determination of voluntariness, saying that we would still give considerable weight to the findings of the trial judge and respectful consideration of them on the crucial issue, so long as the independent responsibility of the appellate court to determine the question of volun-tariness is not frustrated. I now confess that I do not know what this means.

In retrospect, I have serious doubts about the correctness of our decision in Harris, because I doubt that the authorities there cited have' any bearing whatever on the extent of appellate review by state courts. In Haynes v. Washington, 373 U.S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513, (1963), the United States Supreme Court simply refused to be bound by state court determination of the issues. Again, in Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966), that court, in reviewing a federal habeas corpus proceeding, merely reiterated the position previously taken by it, i.e., that it had the duty to examine the entire record and make its independent determination of the ultimate issue of voluntariness. I am not aware of any suggestion by that court that a state appellate court has or should have the same duty.

Be that as it may, we did not reverse the finding of volun-tariness in Harris, and we have seldom done so thereafter. See Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311; Nash v. State, 248 Ark. 323, 451 S.W. 2d 869; Mitchell v. Bishop, 248 Ark. 427, 452 S.W. 2d 340; Johnson v. State, 249 Ark. 268, 459 S.W. 2d 56. But see, Petree v. State, 248 Ark. 359, 451 S.W. 2d 461, and Watson v. State, 255 Ark. 631, 501 S.W. 2d 609. We have actually remanded cases for supplemental hearings, reexamination and re-evaluation of the evidence and more specific and definitive findings on the question by the trial judge. Mitchell v. Bishop, 245 Ark. 899, 435 S.W. 2d 91; Johnson v. State, 248 Ark. 184, 450 S.W. 2d 564. In each case, we ultimately sustained the finding of the trial court that the statements there involved were voluntary. See Mitchell v. Bishop, 248 Ark. 427, 452 S.W. 2d 340; Johnson v. State, 249 Ark. 268, 459 S.W. 2d 56.

In spite of our frequent references to the findings of the trial judge in these cases, we have carefully and sometimes deliberately avoided stating any standard for determining the appropriate weight and respect to be accorded the findings of the trial judge, who had all the witnesses before him. See Johnson v. State, 249 Ark. 268, 459 S.W. 2d 56. In one case, Nash v. State, supra (per Fogleman, J.), we acknowledged that we had given “appropriate, but not controlling, weight to the findings of the trial judge,” whatever that means. In Watson v. State, supra (also per Fogleman, J.), we reversed the trial judge’s holding but said that we accorded respectful consideration to his holding and resolved any conflicts in the evidence in favor of that holding.

The present case clearly illustrates the necessity for our adoption of some standard of review. Surely, the resolution of conflicts in the evidence in favor of the trial judge’s holding is not the full weight to be given them. But what standard are we applying in this case? What standard have we applied in other cases? What guidelines do appellate advocates have? Is each case to be decided on an ad hoc basis? I humbly submit that the last question would have to be answered in the affirmative on the basis of cases decided after Harris.,

We long held that the findings of fact by a circuit judge on any question properly submitted to him would not be set aside on appeal if supported by substantial evidence. Bank of Atkins v. Wirth. 209 Ark. 360, 190 S.W. 2d 445; Ward v. NuWa Laundry Cleaners, 205 Ark. 713. 170 S.W. 2d 381; Matthews v. Clay County, 125 Ark. 136, 188 S.W. 564; Cady v. Pack, 135 Ark. 445, 205 S.W. 819; French v. State, 187 Ark. 782, 62 S.W. 2d 976; Beason v. State, 166 Ark. 142, 265 S.W. 956; Decker v. State, 85 Ark. 64, 107 S.W. 182. We once said that when circuit courts are required by law to pass upon questions ol fact, the findings are as conclusive on appeal as the verdicts of juries. Cady v. Pack, supra; French v. State, supra. The substantial evidence rule has been applied in other cases in which deciding a factual question has been essential to a determination when the proper foundation has been laid for admitting evidence. See Ruloff v. State, 142 Ark. 477, 219 S.W. 781. As recently as 1966, in Mullins v. State, 240 Ark. 608, 401 S.W. 2d 9, we applied the substantial evidence test in reviewing the determination of admissibility of a confession in a Denno hearing under Act 489 of 1965 [Ark. Stat. Ann. § 43-2105 (Supp. 1973)]. This decision was made subsequent to that in Haynes and prior to that in Davis by approximately two months. We have never really explained our departure from Mullins. I am today unaware of any real reason for not having followed .\fullins.

Although I believe that consistency requires that-we reestablish the substantial evidence rule, I insist that we should arrive at some standard other than the particular sense of justice of a minimum of four judges in a particular case. Other rules that are applied by state courts are the “clearly erroneous” rule [People v. Castelli, 7 Mich. App. 1, 151 N.W. 2d 203 (1967)]; “clearly against the preponderance of the evidence” rule [People v. Carter, 38 Ill. 2d 496, 232 N.E. 2d 692 (1967)]; the “clear abuse of discretion” rule [People v. Abbott, 156 Cal. App. 2d 601, 319 P. 2d 664 (1958)]; and the “competent evidence” rule [State v. Bentley, 1 N.C. App. 365, 161 S.E. 2d 650 (1968)].

If it is too late to return to the substantial evidence rule, then I advocate establishment of the “clearly erromeous” rule. This basis for review of a trial judge’s findings of fact is specified by the Federal Rules of Civil Procedure. Rule 52 (a) provides that findings of fact made by the district judges shall not be set aside, unless clearly erroneous and requires that due regard be given to the opportunity of the trial court to judge credibility. It is often said that the rule is best enunciated in United States v. U.S. Gypsum Co., 333 U.S. 364, 68 S. Ct. 525, 92 L. Ed. 746 (1948), where it was held that a finding is “clearly erroneous” even though there be evidence to support it, when on the entire evidence, the reviewing court is left with a definite and firm conviction that a mistake has been committed. In the Eighth Circuit, the Court of Appeals has held that a finding is “clearly erroneous” if it is clearly against the weight of the evidence. Maple Island Farm v. Bitterling. 209 F. 2d 867 (1954). As thus applied the rule differs insignificantly from our rule that we will not reverse a chancellor’s finding of fact unless it is clearly against the preponderance of the evidence. Although the federal rule governs civil proceedings only it is widely applied in criminal cases in the federal courts. See Jackson v. United States, 353 F. 2d 862 (1965). What is more important to us, it affords the standard for appellate review of findings of fact in federal habeas corpus petitions in the Eighth Circuit. Taylor v. Swenson, 458 F. 2d 593 (1972). The fact the rule would be consistent both with our own approach to equity cases, giving us some familiarity with its application, and with the rules of the Eighth Circuit Court or Appeals, where federal habeas petitions from this state will be reviewed, lends strong support to the adoption of that rule.

Until we find a formula for the scope of our review, I must accept the casual abandonment of the substantial evidence ule. Otherwise, I would vote to affirm this case.

We have long been committed to the rule that the question of voluntariness must be determined by looking to the whole situation and surroundings of the accused. See Watson v. State, supra, and cases cited. I cannot join the majority in the emphasis put upon Vault’s minority and the failure to call the attorney employed by his parents. We have held that a minor is capable of making an admissible voluntary confession without the advice of his parent, guardian or other adult. Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311. See also, Patrick v. State, 255 Ark. 10, 498 S.W. 2d 337. We sustained a finding that a 15- or 16-year-old defendant had knowingly and intelligently waived his right to counsel. Jackson v. State, 249 Ark. 653, 460 S.W. 2d 319. See also, Patrick v. State, supra. In Jackson, we said that age was only one of the important factors. We also found appropriate certain language of People v. Lara, 67 Cal. 2d 365, 62 Cal. Rptr. 586, 432 P. 2d 202 (1967), cert. denied, 392 U.S. 945, 88 S. Ct. 2303, 20 L. Ed. 2d 1407. In that case the California court rejected the idea that a minor could not waive his constitutional right to remain silent and to an attorney unless the waiver is consented to by an attorney or a parent or guardian. On the contrary, it held that a minor did not lack the capacity to make a voluntary confession without the presence or consent of counsel or other responsible adult. The admissibility of such a confession, it was said, depended upon a combination of factors, including his age, intelligence, education, experience and ability to comprehend the meaning and effect of his statement. We have also said that age and intellectual strength or weakness of a defendant, the manner in which he is questioned, the presence or absence of threats of harm or inducement and the delay between advice of constitutional rights and the giving of the confession are factors to be considered. Watson v. State, 255 Ark. 631, 501 S.W. 2d 609, (1973).

There was, beyond doubt, substantial evidence to support the trial court’s finding. There was positive, credible testimony appellant sent for the officers after his attorney left in order to make his statement, and when they asked if he wanted his lawyer present he replied that this would not be necessary. This testimony was not denied. There was also positive, credible testimony that the entire procedure after the lawyer left was voluntary on Vault’s part. Significantly enough, Vault did not even testify on the motion to suppress his confession.

Yet with extreme reluctance, I concur in the result reached from the totality of the existing circumstances, but would not in the absence of any of them. If the matter of appellant’s youth and the failure to call his attorney were the only circumstances I could not do so.

In addition to appellant’s youth and the failure to call his attorney, there are these pertinent circumstances:

No witness was able to identify Vault. The written confession of Bill Allen, the alleged accomplice did not implicate Vault, or place him at the scene of the crime. Between the time Vault’s attorney left and the time the statement was given, Officer Best gained no information about Vault’s involvement, except for an oral statement by Allen to Detective Joe Thomas that Allen was involved. The inference that the attorney retained for Vault by his parents had been assured that Vault would be released the following morning if he had not been charged is certainly a reasonable one. The testimony of the attorney that he had asked that Vault be released because, after two lineups, there was no proof that he was involved was really undenied. The same is true of testimony that when he left he told the police that he expected Vault to be released the next morning if he had not been charged. The attorney did not take further steps to secure release by habeas corpus, not only because of the lack of ready availability of a secretary, clerk or judge at the time, but because he had assured himself that Vault would be detained in the juvenile hall, in a private cell with comfortable sleeping accommodations.

J. Fred Jones, Justice,

concurring. I join with my brother Fogleman in concurring, with extreme reluctance, in the results reached by the majority from the totality of the existing circumstances in this case. Neither would I concur in the absence of any of them, and neither would I concur in the majority opinion if the matter of the appellant’s youth and the failure to call his attorney were the only circumstances involved.

There is no evidence in this case that the officers applied anv pressure on the appellant to make a statement to them after the appellant’s attorney had gone. The evidence is that the appellant sent for the officers rather than the officers sending for the appellant, and that evidence is not contradicted. There is no evidence that the appellant was not fully advised of his constitutional rights to remain silent. Certainly there is no evidence in this case that the attorney advised, or would have advised, the appellant to remain silent, or that he advised or would have advised the appellant as to what statements he should or should not make.

It is significant to me also that Vault did not testify on the motion to suppress his confession. There is no evidence as to the personal relationship between the appellant and his attorney as to what should or should not be said and done. The only evidence on this point was that the attorney was employed by the appellant’s parents; that he appeared at the line-up immediately following the appellant’s apprehension, and that he advised the officers he would return for the appellant the following morning.

I do not say that under no circumstances would police officers be under a duty to call an accused’s attorney before taking a confession from the accused. Certainly I would say this should be done before police officers take the initiative in questioning an accused in an attempt to obtain a valid confession that could be used against him, but I certainly would not say that under no circumstances could the police officers accept a voluntary confession, voluntarily offered by an accused, without first notifying the accused’s attorney and having him present before the accused is permitted to say what he wants to say.

The voluntariness of a confession is the crucial issue involved as to its admissibility in evidence, and the accused has ample protection against the admission of his confession in evidence when it is not completely voluntary and intelligently made.

       One of the officers testified only that he did not recall such a request.


author: Frank Holt, Justice. Conley Byrd, Justice,

text:
    James E. LINDSEY v. CITY of FAYETTEVILLE, Arkansas
    73-272
    507 S.W. 2d 101
    Opinion delivered April 1, 1974

      Ball, Gallman & Marlin, for appellant.

      David R. Malone, for appellee.
   Frank Holt, Justice.

Appellant seeks to reverse the ruling of the chancellor affirming the decision of the City Board of Directors which refused appellant’s request to rezone a tract of his land from R-3, high density residential, to C-l, neighborhood commercial. Appellant desires to construct a convenience food market and self-service gas station. On appeal we review the chancellor’s finding to determine whether it is clearly against the preponderance of the evidence that the action of the City Board in a zoning case was or was not arbitrary, capricious and unreasonable. Downs v. City of Little Rock, 240 Ark. 623, 401 S.W. 2d 210 (1966), and City of North Little Rock v. Harble, 239 Ark. 1007, 395 S.W. 2d 751 (1965). Also, there is a presumption that the board acted in a fair, just and reasonable manner. Economy Wholesale Co., Inc. v. Rodgers, 232 Ark. 835, 340 S.W. 2d 583 (1960). In the instant case, we must affirm.

In 1971 appellant purchased a 3.7 acre vacant tract which was zoned high denisty residential. About a year later he sought to have approximately one acre rezoned for neighborhood commercial usage. The City Planning Commission consisted of nine members. Four of the five members present approved with one abstaining. The City Board of Directors, consisting of seven members, disapproved the requested rezoning by a four to one vote of those who were present and voting. On appeal to the chancery court, appellant adduced evidence which indicated that the heavy traffic, noise and patchwork commercial development in the area made his property better suited for the requested light commercial use. Among witnesses in behalf of appellant were owners of various types of businesses in the nearby area. Appearing in behalf of the city were a professional planner employed by the city and a former member of the City Board of Directors. No property owner contiguous to appellant’s property testified in opposition.

Appellant’s property is located on the southeast corner of North Street and Leverett. North Street is an east — west, two-lane thoroughfare, carrying a very heavy traffic volume since it connects Highway 71 and Garland Avenue. Leverett, also a two-lane avenue, runs north and south from the University of Arkansas and carries a great deal of traffic. The traffic at the intersection is controlled by a four-way stop and at times during the day traffic is so congested it backs up considerably. The area of Fayetteville where the land is located can be characterized as one of mixed uses. It is not, as appellant contends, an established business district. There are established commercial and light industrial areas nearby, as well as a sewage pumping station which sometimes creates a noxious odor. Appellant strongly argues that these conditions create a justification for his rezoning proposal. However, the chancellor concisely articulated within this thorough oral opinion:

It also must be observed that the testimony equally shows, and is graphically shown by the aerial photo, that although you must concede the existence and near proximity of light industry and commercial areas, and **** the sewage pumping station, it is equally true that on two of the four sides of adjacent property it is all residential. It is wholly residential west of Leverett, immediately across the street from this property sought to be rezoned. It is wholly residential south of the property sought to be rezoned, the Skull Creek apartments complex. It is wholly residential, that is, spin-off residential use, immediately east of the property sought to be rezoned. The tennis courts and the swimming pool. And except for the little rectangle of something over an acre where the sewage pumping station is, is also residential.
Immediately across the street is the church house which you can’t very well classify as light commercial, industrial or residential. It’s sort of in a class by itself.
Catawampus northwest across from the approximately one acre that Mr. Lindsey seeks to have rezoned is a residential area on the west side of Leverett, north of North Street for a good distance on down, going north. So, from a mere physical analysis, it appears that this particular property is bounded on one side, primarily, by commerical and light industry. Not quite so close, but still close enough to be apparent, on another side, the east side, primarily, by commercial and light industry. But on the other two sides, wholly residential.

The power to enact and enforce a zoning ordinance must relate to public health, safety, morals and the general welfare. City of Little Rock v. Sun Bldg. and Developing Co., 199 Ark. 333, 134 S.W. 2d 582 (1939). When the city council enacts a zoning ordinance, it acts legislatively rather than judicially. City of North Little Rock v. Linn, 252 Ark. 364, 479 S.W. 2d 236 (1972). Where the character of a zoned area has become so changed that modification is necessary to promote traditional police power objectives, the council can amend the zoning ordinance; but the council cannot amend merely to give greater economic gain to the owner of a comparatively small area. Tate v. City of Malvern, 246 Ark. 316, 438 S.W. 2d 52 (1969). Nor can rezoning be justified solely on the ground that it is necessary to put a tract of land to its most remunerative use. Tate, supra.

We have in the past approved residential rezoning to commercial use when faced with an established and expanding business district. Metropolitan Trust Co. v. City of North Little Rock, 252 Ark. 1140, 482 S.W. 2d 613 (1972), and City of North Little Rock v. McKenzie, 239 Ark. 9, 386 S.W. 2d 697 (1965). However, both of these cases presented more pressing circumstances than those involved in the instant case. In Metropolitan Trust Co., supra, where we upheld rezoning by the city council, the involved property was at the intersection of the Jacksonville Expressway and McCain Boulevard. The expressway was a four-lane boulevard with a daily traffic count of 21,000 vehicles and a 75 m.p.h. speed limit. The property was located on the only quadrant of the intersection zoned residential. The property had never been used for residential purposes and was simply unfit for that use. In City of Little Rock v. McKenzie, supra, we upheld the city council’s rezoning of a residential area for quiet business where the rezoned block was bordered on the east by a four-lane thoroughfare with a daily traffic count exceeding 11,000. See also Herring v. Stannus, 169 Ark. 244, 275 S.W. 321 (1925), where wc reversed the chancellor and reinstated the city council’s action in allowing the construction of a service station in a residential area where in the immediate vicinity there were three grocery stores, a meat market, a drug store, cleaners, bakery and another service station. There we said:

This was a question about which reasonable minds might differ, and did differ sharply as reflected by the testimony in the case ****. The council, under the ordinance, may grant a permit to erect a filling station in a district which is purely residential, if a good cause therefor is shown, and this is a question which addresses itself primarily to the council. The proximity or remoteness of other stations and the volume of traffic were proper matters for the council to consider, and its action is final unless we can say that the council abused its discretion. But this discretion, in so far as a discretion abides, is vested in the council, charged by law with the duty of passing on the question, and does not rest in the courts which review the council’s action. ****
The question is not what a member of the court might decide if the question were submitted to him as a matter of discretion, but rather is whether it can be said that the council abused its discretion, and we may not say that such was the case unless that fact clearly appears. This we are unable to say.

In cases similar to the case at bar, we have refused to rezone property for commercial purposes where it was not shown that the council acted arbitrarily. On facts demonstrating commercial development more persuasive than those herein, we have excluded a gasoline station from a residential area. In McKinney v. City of Little Rock, 201 Ark. 618, 146 S.W. 2d 167 (1941), the lot in question was located on one side near a potato chip factory, gasoline station, cafe, grocery store, bakery, barber shop, beer parlor, sausage factory and an annoying music conservatory. To the north of the lot were a garage, three grocery stores, two service stations, two beauty parlors, a barber shop, a fruit stand, a cleaning establishment, and a shoe shop. All of the establishments were within 600 feet of the lot. As in the case at bar, the traffic on the street in front of the lot was very heavy. There was testimony that a service station would increase the traffic hazard near the schools. We stated:

Moreover, to set aside the decree and finding of the Council would be substituting our judgment for that of the zoning authorities who are primarily charged with the duty and responsibility of determining the question. This we should not do unless we can say from the evidence that the action of the Council and the decision of the court are unreasonable and arbitrary.

Similarly, in the case at bar. we cannot say that the council acted arbitrarily and unreasonably in deciding to maintain the residential classification zone in an area of mixed uses.

One factor merits additional discussion. It has been suggested that the heavy traffic on North Street and also on Leverett played an important consideration in the council’s determination. The flow’ of traffic and safety related considerations are legitimate concerns for a municipal legislative body in its enactment and enforcement of zoning regulations. Tidewater Oil Co. v. Carteret, 44 N.J. 338, 209 A. 2d 105 (1965), Food Corp. v. Zoning Bd. of Adjustment, 384 Pa. 288, 121 A. 2d 94 (1956), and Crystal Holding Co. v. Westfield, 7 N.J. Misc. 975, 147 A. 916 (1929). See also Anderson, I American Law of Zoning § 7.09 (1968). For example, gasoline stations have been excluded from residential districts due to the increased risk of traffic accidents. Enzor v. Askew, 191 Ga. 576, 13 S.E. 2d 374 (1971). It has even been held that a failure to consider the effect of reclassification upon the traffic problem may result in judicial disapproval of the change. Price v. Cohen, 213 Md. 457, 132 A. 2d 125 (1957), Hardesty v. Bd. of Zoning Appeals, 211 Md. 172, 126 A. 2d 621 (1956). Both Price, supra, and .Iardesty, supra, concerned reclassification of a zone to allow a shopping center to be built without giving consideration to traffic congestion problems. In neither case were plans in existence to widen the roads adjacent to the shopping centers.

Generally, excess traffic alone is not sufficient grounds to justify a change in zoning. Metropolitan Dade County v. Greenlee, 224 So. 2d 781 (Fla. App. 1969). Our cases indicate that traffic conditions are important factors. Metropolitan Trust Co. v. City of North Little Rock, supra, is an example of a zoning change largely due to the adjacent highway conditions. McKinney v. City of Little Rock, supra, reflects that the refusal of a zoning change due to increased traffic hazards that a gasoline station would have created. Traffic conditions, therefore, may be important factors in either refusing or granting a change from residential to commercial zoning.

In the instant case, if the city determined that appellant’s proposed convenience market equipped with gas pumps would create a dangerous traffic situation on admittedly heavily travelled two-lane streets, we cannot say that was an arbitrary and unreasonable decision. We note that appellant is left with alternative uses for his land. For example, it is presently zoned to permit apartments, cultural and recreational facilities, and professional offices. The burden was upon appellant to justify the requested rezoning.

In the circumstances, we cannot say the chancellor’s finding is clearly against the preponderance of the evidence.

Affirmed.

Byrd.J., dissents.

Conley Byrd, Justice,

dissenting. When a proposed zoning change is denied, not because of its adverse effect on neighboring property but because of its adverse effect on traffic or a comprehensive land use plan, it is my position that the denial of the zoning request is not for zoning purposes but for a PUBLIC USE contrary to Ark. Const. Art. 2 § 22 which provides:

“The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”

I can find no evidence in the record here to substantiate a finding that the zoning here requested will adversely affect neighboring properties. To the contrary all of the neighboring property owners that appeared testified in favor of the zoning request.

The majority also suggests that appellant is left with alternative uses but here again it appears that they are merely speculating. The proof was that the property was not suitable for apartments and there is a total absence of proof that any of the other suggested uses would be economically feasible.

For the reasons stated, I respectfully dissent.


text:
    Roger MEARS, Jr., Mrs. Phyllis BRANDON and Bob SCOTT, as Members of the Board of Election Commissioners of Pulaski County, Arkansas v. CITY of LITTLE ROCK
    74-82
    508 S.W. 2d 750
    Opinion delivered April 8, 1974

      Lee A. Munson, Pros. Atty., 6th Dist., and Tom Tanner, Dep. Pros. Atty., for appellants.

      Joseph C. Kemp and Riddick Rijjel, for appellee.
   Carleton Harris, Chief Justice.

This litigation refers to the election of a Board of Directors of a “Management Form of City Government”. The 1973 General Assembly of the State of Arkansas enacted legislation which became Act 168 of 1973, this act amending Ark. Stat. Ann. § 19-704 (Repl. 1968). The principal section amended was subsection (c). That section, before the amendment, read as follows:

“(c) Except in the instances where Directors are elected at special elections as provided in Sections 2 (§ 19-702) and 13 (§ 19-713) of this Act, the members of the Board of Directors shall be elected at the general elections held biennially for the election of State and County offices; each such general election to be utilized for the election of successors to those Directors whose terms expire on December 31 next following said election.”

Following the amendment, the subsection reads in this manner:

“(c) Except in the instances where Directors are elected at special elections as provided in Section 2 and 13 of this Act, the members of the Board of Directors shall be voted on at the preferential primary election held on the Tuesday two weeks prior to the general primary election and if none of the candidates for a position receives a majority of the votes cast in said election, then the names of the two candidates in each position receiving the greatest number of votes shall have their names placed on the ballot at the general primary election, each such preferential and regular primary election to be utilized for the election of successors to those Directors whose terms expire on December 31 next following said election. ”

The most confusing part of the legislation comes in the next subsection, (d), which was maintained intact except that the word “general” was changed to read “regular”. That subsection is as follows:

“(d) All regular and special elections of Directors shall be nonpartisan, the ballots to show no party designation. In all regular and special elections, each candidate for the office of Director shall be elected by the electors of the city at large. A Director shall not be prohibited from holding successive terms of office.”

It is agreed between the litigants that the purpose of the amendment was to provide that the final election of City Directors would be the primary election, i.e., no general election would be necessary, the intent of the General Assembly apparently being to provide for a run-off, if necessary, wherein City Directors would be elected by a majority of the citizens of the municipality. Interestingly enough, however, the act still contains unrepealed language found in Ark. Stat. Ann. § 19-705 (Repl. 1968) which provides, “it being the intention of this Act that the general election machinery of this State, now or hereafter existing, shall be utilized in the holding of all general and special elections authorized under this Act.”

In fact, there is no repealing clause in the act and any possible repeal of conflicting portions would have to be by implication, such type of repeals not being favored under the law.

In Selig v. Powell, 253 Ark. 555, 489 S.W. 2d 484, quoting an earlier case, we said:

“Repeals by implication are not favored, and there are many instances in which particular statutes are held not to be repealed by implication. As a general rule, the legislature, when it intends to repeal a statute, may be expected to do so in express terms or by the use of words which are equivalent to an express repeal, and an intent to repeal by implication, to be effective, must appear clearly, manifestly, and with cogent force.”

Other inconsistencies and ambiguities in the act could be mentioned, and it is true that the provisions appear most impracticable, for though the statute provides that the Directors shall be elected by a nonpartisan vote, the election itself, under the amended statute, would be held at the Democratic and Republican primaries. Accordingly, we would have persons being voted on at these primary elections who were not required to conform with party regulations. Both the Democratic and Republican primaries would have to be utilized; it would appear that the total number of votes would be ascertained by adding the total vote received by persons in the Democratic primary to the total vote received by persons in the Republican primary, and the same procedure would be followed in case of a run-off. It is even possible that one of the parties would have to conduct a primary where no party candidates were involved, simply as a matter of conducting a run-off election for nonpartisan candidates.

However, though provisions mentioned would seem difficult to carry out, the principal, and controlling, aspect of the litigation is that, under the provisions of the statute, many qualified voters would be disenfranchised; this, for the reason that hundreds and hundreds of voters consider themselves independents and do not participate in party primaries; not only that, but others, who might belong to a third political party, which held no primary election, would also be disenfranchised. In other words, thousands of citizens who are qualified to vote under the provisions of Amendment 51 (Voter Registration Act) to the Constitution of Arkansas could be deprived, under the provisions of Act 168, of the privilege of casting their ballots. We need say no more to establish that the act is invalid.

Affirmed.

       Another conflict is found in Ark. Stat. Ann. § 3-101 (b) (Supp. 1973) which states:
      “ ‘Primary election1 shall mean any election held by a political party in the manner provided by law for the purpose of selecting nominees oj said political party for certification as candidates for election at any general or special election in this Stated1 [Our emphasis|.

        Moncus v. Raines, 210 Ark. 30, 194 S.W. 2d 1.

      ] The only other amendments in the act were the substitution of the word “regular” for “general” in subsections (e), (f), and (g).