author: J. Fred Jones, Justice. George Rose Smith, Justice, Lyle Brown, Justice. Conley Byrd, Justice.

text:
    James B. Randle and Clifford L. Wright v. The State of Arkansas
    5351
    434 S.W. 2d 294
    Opinion Delivered November 18, 1968
    [Rehearing denied December 23, 1968.]

      Brown, Compton & Prewett for appellants.

      Joe Purcell, Atty. Glen.; Don Langston, Asst. Atty. Gen. for appellee.
   J. Fred Jones, Justice.

James B. Randle and Clifford L. Wright were charged, in the Columbia County Circuit Court, with the crimes of first degree rape. Randle was also charged with third degree rape. They were tried jointly on their own motion, the jury found them both guilty of first degree rape and they were sentenced to the state penitentiary for periods of thirty years each.

Both defendants have appealed to this court and they rely on the following points for reversal:

“The crime of carnal abuse is included in the offense of rape and the jury should have been instructed on third degree rape.
The appellants were deprived of a fair trial by the urging of the Court for the jury to reach a verdict and leave the sentence and punishment to the Court.”

As related to this case, the statutory definition of rape in the third degree as distinguished from rape in the first degree, (Ark. Stat. Ann. § 41-3401 [Supp. 1967]) is as follows:

“A male is guilty of rape in the third degree when: (a) he engages in sexual intercourse with a female or carnally abuses a female who is less than sixteen (16) years old.
# # #
A male is guilty of rape in the first degree when he engages in sexual intercourse with a female:
(a) by forcible compulsion. ...”

The penalty section of the statute applying to third and first degree rape (Ark. Stat. Ann. § 41-3403 [Supp. 1967]) is as follows:

“* * * Any male, upon conviction of third degree rape, shall be subject to imprisonment in the State Penitentiary for a term of not less than one (1) nor more than ten (10) years.
# * *
Any male, upon conviction of first degree rape, shall be subject to death or thirty (30) years to life imprisonment in the State Penitentiary.”

The appellants do not question the sufficiency of the evidence to sustain the conviction, so the evidence will not be set out in detail.

The appellants, Bandle and Wright, were married men twenty-eight and twenty years of age respectively when the acts for which they were convicted occurred on July 24, 1967. The victims were two unmarried girls, the younger one being under sixteen years of age on July 24, 1967. 'The older girl was sixteen years of age at the time of trial and there is nothing in the record to indicate that she was less than that age on July 24, 1967. The younger girl lived with her parents in Hampton, Arkansas, and the older girl lived with her parents in Dallas, Texas. The two girls were cousins. The younger girl had been visiting the older one in Dallas and both girls were returning by bus to Hampton where the older girl planned to visit in the home of the younger one. A married brother of the younger girl, and an aunt of both girls, lived in El Dorado and both girls stopped off in El Dorado to visit with their relatives.

After arriving in El Dorado, the girls went with a relative to a neighbor’s house where they saw, but did not formally meet, the appellants. After returning to their relative’s home and while the relative was away from the house temporarily on a personal errand, the appellants drove by the house in an automobile and invited the girls to go out for a coke at a nearby drive-in. After having cold drinks at the drive-in in El Dorado, the two couples continued to drive around and drove to Magnolia in Columbia County. On returning from Magnolia they turned off the main highway onto a dirt side road and drove to an isolated oil well site in Columbia County, where Bandle had sexual intercourse with the younger girl in the front seat of the automobile while at the same time, Wright had sexual intercourse with the older girl in the rear seat of the automobile.

Both girls and both appellants testified at the trial. The appellants admitted the acts of sexual intercourse, but testified that both girls readily consented to the acts and engaged in the acts freely, without compulsion and strictly on a voluntary basis. Both girls testified that the acts were accomplished without their consent and through physical force and violence, attended by threats of murder as the penalty for resistance and non-compliance and both girls testified to acts of violence and brute force applied in a most revolting manner. The testimony of both girls was corroborated to some extent by medical testimony following physical examination.

If the jury had believed the testimony of the appellants, Randle would have been guilty of third degree rape, and Wright should have been acquitted. But if the jury believed the testimony of the girls, as it evidently did, the evidence was amply sufficient to sustain the convictions of first degree rape with a penalty even more severe than the minimum of thirty years imprisonment assessed by the jury. The first point relied on by the appellants, however, gives us considerable concern.

As a usual procedure, a defendant requests instructions on a lesser degree of the crime for which he is being tried, and assigns reversible error if the instruction is not given. Clark v. State, 244 Ark. 778, 427 S.W. 2d 172. But in the case at bar, not only did the defendants fail to request an instruction on third degree rape, the defendants objected to giving that instruction when it was requested by the prosecuting attorney. On this point the record is as follows:

“the court:
Mr. Chambers, attorney for the defendant, has objected to giving an instruction on third degree rape as set out in Act 362 and the State has requested an instruction on third degree rape, insisting that same is lesser degree. I am not saying in my ruling that third degree rape as previously known as ‘carnal abuse’ is not a lesser degree of first degree rape. Tbe evidence in the case, and it appears in tbe record, that one of tbe prosecuting witnesses is under the age of sixteen years, however, at this time it is the ruling of the Court that there is substantial evidence to submit to the jury as to both defendants on first degree rape and I am going to sustain the motion or objection of the defendant and not give an instruction on rape in the third degree.”

This procedure does not reflect on the competency of the appellants’ court appointed attorneys. They were assigned an unusual task justifying an unusual, but well-known trial strategy. They were assigned the task of defending a twenty-eight year old married man charged with the rape of a fifteen year old girl, and a twenty year old married man charged with the rape of an' apparently sixteen year old girl. Both girls testified as to the crimes committed against themselves and against each other, and certainly it was imperative that the appellants testify in their own defense. The appellants’ attorneys obviously adopted the trial strategy of not requesting a jury instruction on a lesser degree of the crime charged when a finding of not guilty on the greater degree would result in a complete acquittal.

In the case at bar one of the appellants had admitted facts constituting the crime of third degree rape. The other appellant had admitted the same acts at the same time and place, but under his testimony he had committed no crime, the difference being, the one year difference in the ages of the girls. So the question actually presented under appellants’ first point is whether the trial court committed reversible error in not giving an instruction on the lesser degree over the appellants’ objections. We conclude that it did not.

' ' The appellants recognize in their argument that this court has many times held that an appeal may not be predicated on an error to which no objection has been made, and the appellants agree that this rule should be adhered to except in most unusual circumstances. We do not agree that such exceptional circumstances existed in this case that reversible error occurred in the court’s failure to give the instruction over the appellant’s objection.

It is true that the exact age of the older girl on the date of the offense charged, is not clear in the record. She testified at the time of the trial that she was sixteen years of age and she was not questioned as to her age at the time the offense was committed. In the absence of proof that the older girl was less than sixteen years old, Randle was the only one who could have been found guilty of third degree rape and according to the testimony of both girls, the forceful compulsion employed by Randle was the same as that employed by Wright, except that Randle was more vicious than was Wright in the exercise of the force he employed. According to the girls Randle struck the younger girl at least three times and the older one twice, in his efforts to stop them from screaming, and Wright also struck the older girl at Randle’s request. The evidence was amply sufficient to sustain a verdict of guilty of first degree rape against Wright, and if Wright was guilty of first degree rape so was Randle.

We hold in this case, as we have held in others, that where no objections are made at the trial to the instructions of the court, we will not consider alleged errors predicated upon the ruling of the court in giving instructions. Walker v. State, 151 Ark. 394, 236 S.W. 627; Cegars v. State, 150 Ark. 648, 235 S.W. 36. An appellant cannot complain of rulings made by the court at the insistence of his own attorneys, (Sheppard v. State, 239 Ark. 785, 394 S.W. 2d 624) nor complain of invited error. Anderson v. State, 210 Ark. 548, 197 S.W. 2d 36.

So we hold, in the case at bar, the trial court did not commit reversible error in its failure to instruct the jury on third degree rape, under the facts and circumstances of this case.

As to appellants’ second point, the record shows that after the jury.had been in deliberation for about two hours, it returned to the courtroom for additional information. At the expense of additional length, the record on this point is set out in full in order to preserve its full context. We have italicized that portion of the record emphasized by the appellants as constituting reversible error. The record is as follows:

“At 4:40 P.M., the same day, the jury returned to the Court room, and requested through its foreman, Mr. Harold Ruble, that more evidence be presented in the case, wherefore the Court addresses the jury:
the court:
We are all in the same pursuit of justice, a fair and impartial trial to both the State and the dedendant. When we came here, I’d like to impress upon you this, now I don’t intend to point to any particular thing, but we tooh an oath that we would try the case solely on the evidence and the law. I simply tell you this and to impress upon you, that each juror should have a strong conviction of the evidence as to the guilt or innocence and as to the law as to the guilt and innocence of each of these defendants and how that law applies to the facts as to the respective parties. Ho you think if you go back and have an opportunity to deliberate further, can you reach a verdict?
mr. ruble:
[Jury foreman] I doubt that we could without seeing any other evidence. Is there any other evidence that could he presented?
THE COURT:
No, sir, they do not have a right to present evidence after the case is closed on behalf of the State, and after the case has been closed on behalf of the defendant. Further, on this point, I say that each one of you should have a strong mind and conviction to be able to determine in your own mind the guilt or innocense of each defendant. Yet, you should be willing to yield your position to one on the jury ivho can reasonably be correct. I simply tell you that in every jury and every criminal case there has to be a diversion of opinion. Yet after you have had an opportunity to discuss it fully and completely on the evidence and law and the law that is given you by the Instructions, and the evidence in the case, that I feel there can be a harmonious decision by a unity of one jury and one verdict on each case. I would like for you gentlemen to go out and reconsider it, and I do not tell you to find for the State, that is, for the guilt or the innocence, I simply tell you to go out and use good judgment according to the law and evidence. I feel that you can reach a verdict and I feel that the evidence in another case would not be any clearer that it is in this case. It would simply be a repetition. You are jurors, I don’t want to use coercion, but I feel that if you go out and deliberate these points of law or facts that you are in dispute about, you may reach a verdict. It’s fifteen minutes until five. Would you gentlemen . . . did you want to ask a question?
MR. RUBLE;
Is there a chance of being a lesser penalty of a lesser degree of guilt?
the court;
No, sir. The sentence, the guilt, is either guilt or innocence. I can instruct you this way under the laws of the State of Arkansas if all of you concurred in a judgment, or a verdict of guilt, or innocence, that would satisfy the law. In the event the defendant or each of the defendants are found ‘not guilty’ they are acquitted. In the event you elect to find either or both of the defendants guilty, you can under the Arkansas Statutes, leave the sentencing and punishment to the Court.
mr. ruble:
That clears it up. the court:
Does that help you?
(Reporter’s Note: Jurors nod affirmatively). the court:
I would further like to impress upon you that each of you are separate individuals and each of you have heard the evidence and I would not want you to give away or be swayed against your better judgment as to the justice in this Court, as to a particular party, and I am restrained from doing other than telling you the law in the case and the law that applies to any particular case as to the instruction I do not intend to sway any of you from your own judgment and decision. I simply feel that if you go back through the evidence and the law, you might reach a decision, and if you would not mind elaborating further, say, for fifteen or twenty minutes, would that be an inconvenience to any of you?
mr. ruble;
What time, sir? Fifteen or twenty minutes further ?
MR. DON ERANKS:
[Member of the jury] We would like to know if we should decide to leave the sentencing up to the judge, would the minimum still be thirty years, is that the least that the judge could sentence?
the court:
It is entirely up to the Court to sentence an individual if you want to find him guilty or innocent, if it’s innocence, just not sentence him. . If it’s a unanimous verdict of the jury to find the defendant, or either of the defendants, guilty, the sentence is entirely up to the court.
MR. DON FRANKS:
You would have to find him guilty in the first degree, right?
the court:
In this particular case, the only instructions before you are rape in the first degree, Does that answer the question?
Reporter’s Note: (Jurors Nod Affirmatively).
mr. ruble:
Could we have thirty minnt.es? the court:
You can have as long, as far as I’m concerned, as you gentlemen would like.
MR. LOUIS WILSON:
[Member of the jury] Do you have the discretion of saying what the penalty is, or to specify it thirty or over?
the court :
That is entirely up to the Court. Now, I might say this, regardless of what a jury might recommend to the Court.
MR. WILSON:
But, it’s still up to the jury? the court:
It is not binding on the Court. The sentence is entirely in the province of the Court. Do I make that clear?
JURORS NOD AFFIRMATIVELY.
THE court:
Now you may take as long as yon like, or if should you go beyond the ... I call it the supper, I think some people call it dinner ... if you go beyond the period that we eat next, if you’d like to remain together, I think that the Court could arrange to have all of you fed together. Now of course I don’t want to tell you to use any type of force or persuasion against each other, it’s just that I feel you can agree on a verdict, regardless of what that verdict might he in each case, and if you prefer to stay together a little later, that is, solely' within your province. If you’d like to stay during the night meal, I think we could arrange to keep you together, if you’d like that. I’ll let you gentlemen make that decision.
The jury retired to deliberate further at 4:50 p.m.
The jury returned into open court at 6:05 p.m., November 9, 1967, the following verdict:
the court:
Have you gentlemen reached a verdict?
MR. RUBLE:
Yes.
THE COURT;
Would the defendants stand and face the Jury? Mr. Foreman, would you read the verdicts, please?
MR. RUBLE:
'We, the Jury, find the defendant, James B. Randle, guilty of rape in the first degree, and assess his punishment at thirty years imprisonment in the State Penitentiary.’
The other case, which is 4267:
'We, the Jury, find the defendant, Clifton [sic] Laurence Wright, guilty of rape in the first degree, and assess his punishment at thirty years imprisonment in the State Penitentiary.’ ”

We are of the opinion that the appellants have interpreted the court’s remarks out of the context in which they were made. For example, the appellants argue that on page 224 of the transcript, the court said:

“I simply tell you this, and to impress upon you, that each juror should have a strong conviction of the evidence as to the guilt or innocence . . .”
what the court actually said was this:
"I simply tell yon this and to impress upon yon, that each juror should have a strong conviction of the evidence as to the guilt or innocence and as to the law as to the guilt and innocence of each of these defendants and how that law applies to the facts as to the respective parties.”

We do not attribute to the trial court’s remarks the same interpretation and effect that the appellants do. The record is no more indicative that the jury was influenced by the age of the girls, as argued by appellants, than it was by the ages and marital status of the appellants. The record is no more indicative that the jury desired to return a verdict for third degree rape than it is that the jury did not want to risk a sentence for less than thirty years in the hands of the trial judge.

In St. Louis I. M. & S. R. Co. v. Garter, 111 Ark. 272, 164 S.W. 715 we approved an admonition to the jury by the trial court “not to be stubborn and to lay aside all pride of opinion and to consult with each other and give due regard and weight to the opinion of their fellow jurors,” and we conclude that the trial court did no more in the case at bar.

We conclude that the trial court simply attempted to answer the jurors ’ questions without influencing their verdict, and when the statements are considered in their full context and in the light of the written instructions, the trial court did not commit reversible error, or abuse its discretion, in answering the questions asked by the jurors and in requesting the jury to deliberate further in their effort to reach a verdict. We do not overlook the fact that the jury did not leave the punishment to the trial court. The jury not only found both defendants guilty of first degree rape, the jury assessed the minimum penalty of thirty years in each case. If the minimum penalty provided for the crime of first degree rape is too severe, that is a matter that addresses itself to the legislature and not to a jury or this court. If the penalties assessed against the appellants, or either of them, are too severe under the facts of this case, that is a matter that addresses itself to executive clemency and not to this court.

We have found no reversible error in the record before us and we conclude that the judgments should be affirmed.

George Rose Smith, Beown and Fogleman, JJ., concur.

Byrd, J., dissents.

George Rose Smith, Justice,

concurring. I express no opinion on the second point discussed by the majority. That issue is not before ns, because no exceptions were saved to the court’s action. Stockton v. State, 239 Ark. 228, 388 S.W. 2d 382 (1965).

Lyle Brown, Justice.

I concur in the results as to both points. However, as to the first point, I believe that if the prosecuting attorney offers an instruction which is proper under the evidence, justice would be better served if it were given. In other words, the fact that counsel for defendant may want to “gamble” is not sufficient reason to refuse it. Here the court refused (without objection) an instruction on the lesser degree of the crime because the defendant did not want it given. Undoubtedly, the counsel thought the jury would not convict his client of first degree rape, but might convict him of third degree rape.

I express no opinion on the second point. The record does not show that the court was asked to rule on the objection; in fact, it is not shown that it was even presented to the trial court. When the objection was made, the jury had been sent back to deliberate, which action is usually followed by an immediate recess. How are we to know but what the objection was simply dictated to the reporter out of the hearing of the trial judge? At least it was incumbent on the trial attorney to protect his record; so if the motion was presented to the judge and he refused to rule, that fact could easily be made to appear in the record. Certainly we cannot assume, absent a record to support it, that the trial judge neglected his duty.

Fogleman, J., concurs in my position on the second point.

Conley Byrd, Justice.

As I read the judge’s remarks, he told the jury that ‘ ‘ each of you should have a strong mind and conviction to be able to determine in your own mind the guilt or innocence of each defendant. Yet, you should be willing to yield your position to one on the jury who can reasonably be correct.” Subsequently, he told the jury “in the event you should elect to find either or both of the defendants guilty, you can under the Arkansas statutes, leave the sentencing and punishment to the court.” Counsel for the defendants objected to the remarks of the trial court, but the record does not show a ruling thereon. As I pointed out in the dissent in Cassell v. State, 242 Ark. 149, 412 S.W. 2d 610 (1967), the failure to save an exception to the ruling of the court does not waive the defendant’s constitutional rights. In Ward v. State, 236 Ark. 878, 370 S.W. 2d 425 (1963), we held that it was reversible error for the judge to instruct the jury that they could leave the sentencing to him before the jury had arrived at the guilt or innocence of the defendant.

When the court’s instructions are put together, it appears to me that the trial judge suggested to the jury that they should find the defendant guilty and leave the sentencing to the court.

For this reason, I dissent.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Sylvia Bruce Smith v. Delmar R. Smith
    4733
    433 S.W. 2d 835
    Opinion Delivered November 18, 1968

      Hickman & Forman for appellant.

      Chapman & Wiley for appellee.
   Conley Byrd, Justice.

Appellee Delmar it. Smith’s suit against appellant Sylvia Bruce Smith alleged indignities to the person as grounds for the divorce granted on April 25, 1968, by the White County Chancery Court.

In support of his complaint, appellee testified that the parties were married in July, 1965, and separated in October or November; that she nagged and had a high temper; that she told him to get out, which he did, and does not intend to return.

Appellee’s mother testified that she knew little about the separation, as follows:

Q. Did you have occasion to observe how they got along?
A. For all I know they got along, I never saw them have any trouble.
Q. Do you know anything about Mrs. Smith’s temperament?
A. Well, things bother her. She gets mad rather easy I would say, gets offended at little things, I think, that should be passed over.
Q. Did you ever see her mad at your son?
A. Well, not that I know of. They had their talks in the car or up at her house.
Q. She never displayed her temper around you?
A. Oh, I saw her when she acted offended but she never got real mad.

Appellee’s other corroborating witness testified that he did not know anything about why they separated.

Appellant testified that the parties were married June 29, 1963, and separated October 7, 1965; that they had cohabited since the separation and that she did not want a divorce. She has appealed urging (1) the conduct alleged by appellee does not constitute grounds for a divorce and (2) there was no corroborative testimony or evidence to sustain the decree.

Our cases construing Ark. Stat. Ann. § 34-1207 (Repl. 1962), consistently hold that a divorce will not be granted upon the uncorroborated testimony of a party to the suit. Appellee cites a number of cases in which this court has held, slight corroboration to have been sufficient to sustain a decree of divorce. However, we find no such corroboration here.

Since we are reversing this case for lack of corroborative evidence to sustain the decree, we do not discuss the first point.

Reversed and remanded to the trial court to assess attorney’s fees and costs.


author: Carleton Harris, Chief Justice. Conley Byrd, Justice.

text:
    Mutual of Omaha, a Corporation v. Ora E. George
    4674
    434 S.W. 2d 307
    Opinion Delivered November 25, 1968

      Odell Pollard and Jerry Cavaneau for appellant.

      Howell, Price & Worsham and Farrington, Curtis & Strong for appellee.
   Carleton Harris, Chief Justice.

The question in this litigation is whether the death of Carl G. George was accidental. Mrs. Ora E. George, mother of Carl, and appellee herein, instituted this action in the Circuit Court of Stone County against Mutual of Omaha, appellant herein, after the son was shot and killed by Henry Criswell on December 27, I960. On February 5, 1963, appellant had executed and issued its policy of insurance to Carl George in the amount of $5,000.00, appellee being named beneficiary. The policy inter alia insured George against death by accidental injury. The company defended the litigation on the ground that the son’s death was not accidental. On trial, the court entered its judgment for appellee in the amount of $5,-000.00 plus 12% penalty, and an attorney’s fee of $500.00. From such judgment, appellant brings this appeal. For reversal, it is contended that the death was not accidental, and appellant is thus not liable.

Henry Criswell, a resident of Stone County, married, and the father of several children, testified that he was awakened around midnight on December 27, 1965, by the constant sounding of an automobile horn in front of his house. On going outside to investigate, he found Carl George and another man that he did not know, sitting in an automobile. Criswell stated that they wanted him to take a drink of whiskey, but he told them that he had quit, and was going in the house and to bed, as he was going deer hunting early the next morning. The witness told them to “go on,” turned around and started to the house. George replied, “I’m going in, too,” and followed some 20 or 25 feet behind Criswell. The latter said that the two were drunk, and the man with George could hardly sit up in the car. The witness went inside the house, shut the door, and was in the process of “buttoning it, when he run agin’ it.” Criswell stated that George ran against the door three or four times, and he (Criswell) said, “Now if you run agin’ it anymore, why, when I get my gun, I’m going to help you tear it down.” Actually, it appears that Criswell already had the shotgun. From the record:

“When did you get the gun; was it right after you got in the house or was it sometime after?
A. No, I went and got it; I decided that he was aiming to tear it down anyway and I just grabbed my gun.”

He said that he loaded it while he was leaning against the door. Criswell never did inform George that he had gotten the gun, nor did he ever tell the latter that he was going to shoot him, but when another lunge was made at the door, Criswell fired. There were no lights burning either inside, or outside, the house when the shot was fired. The witness said that when he fired, he knew he hit George because the latter yelled, though he was not sure whether the exclamation had been “You hit me,” or “My God, you hit me,” or “killed me.” But he heard George leave the porch. Criswell said that George bore the reputation of wanting to fight when he ‘ ‘ got to drinking, ’ ’ and that entered his mind as he went into the house and locked the door. The evidence given by this witness reflected that his 21-, 20- and 14-year-old daughters were present in the house at the time, and two or three of his boys were also present. However, there is absolutely nothing in the record to indicate that the presence of the girls in the house had anything to do with George’s desire to enter.

Mrs. Beulah Criswell corroborated her husband’s testimony that George slammed against the door several times, and that her husband tried to get him to leave but was unsuccessful; she did not remember whether George said anything while this was going on. She stated that she never did hear her husband say anything to George other than for him to go on home, and she did not hear any statement made concerning a gun. In reply to a question as to whether she would have been in a position to hear everything said by her husband, she replied in the affirmative. Both witnesses testified that George had been to their home several times, night and day, and Mrs. Criswell said that George always behaved as a gentleman. She heard no loud voices, threats, profanity, or anything that would indicate any argument when her husband went out to the automobile because of the horn blowing.

Other evidence, which seems particularly pertinent to the point at issue was offered by Criswell. He said that during the four or five-year period that he had known George, they had had drinks together, and he had been on hunting trips which included George. There had never been any ill feeling whatsoever between the two men. In fact, Criswell, when asked if he intended to kill George (when he fired the shot), replied:

“No, I just aimed to scare him away from the door. I didn’t want him to tear it down; if he was, I was aiming to help him. I had another shell there in my hand.
Q. So this was a scare shot, right?
A. Right.”

After firing the shot, Criswell went to the home of a neighbor, Ralph Rorie, and informed Rorie of what had happened; the two returned to the Criswell premises, found the man not known to Criswell in the car sleeping, and then discovered the body of George lying on the ground about 10 or 15 feet from the front door of the Criswell home. A closed pocket knife and a package of cigarettes were on the ground, even with the pocket area of the body, apparently having fallen out when George fell. No firearm, or other weapon, was found. David Hodges, Prosecuting Attorney for the district which includes Stone County, testified that when he assumed office, a charge of manslaughter was pending against Criswell, and his office dismissed the charge.

We agree with the trial court that, under our decisions, the death was accidental. In Metropolitan Casualty Insurance Company v. Chambers, 136 Ark. 84, 206 S.W. 64, this court said:

“It is the settled law in this State that proof of death of an insured from injuries received by him raises a presumption of accidental death within the meaning of an insurance clause insuring against injury by external, violent and accidental means, and this presumption will continue until overcome by affirmative proof to the contrary on the part of the insurer.”

See also Aetna Life Insurance Company v. Lemay, 218 Ark. 328, 236 S.W. 2d 85. Accordingly, we start out with the presumption that this death was accidental, and the burden was upon appellant to show otherwise. In Lincoln Income Life Insurance Company v. Alexander, 231 Ark. 64, 328 S.W. 2d 266, we approved an instruction which was given to the jury as follows:

“The killing of an unarmed person by one upon whom he is moving aggressively is by accident or accidental means if the unarmed person did not know and had no reason to believe that his adversary was armed and intended to kill Mm upon suck advance. Thus, should you find that Alexander was moving aggressively upon Lee, but was unarmed, you are instructed that the death of Alexander was by accident or accidental means unless Alexander knew or had reason to believe that Lee was armed and intended to kill Mm.”

Appellant vigorously contends that the insured was the aggressor in an affray from which he might reasonably have expected to suffer serious injury or death, and hence, there is no liability on the part of appellant, and the company relies in large measure on Aetna Life Insurance Company v. Lemay, supra. However, the facts there were far different from those in the instant litigation. Hamn, 69 years of age, rather frail, weighing 135 pounds, was just three days out of the Veterans Hospital where he had been confined for several weeks, when John Clint Lemay accosted Mm at a grocery store. Lemay had a grievance against Hamn by reason of the former’s having been charged with a misdemeanor; Le-may was drinking, and “invited Hamn out.” Later that afternoon, Hamn was in a drug store where he had gone to buy a soft drink, when Lemay entered and told Hamn that he had come there to “beat him up;” whereupon, he grabbed Hamn by the collar and tie, and attempted to strike him. The drug store proprietor then separated the two men, but shortly thereafter, Lemay ‘ ‘ came back at him like a hyena,” and grabbed and began beating Hamn. From the opinion:

“Witness was physically unable to defend himself against Lemay. His hands being sore and swollen, he could not have hurt Lemay if he had hit him. There was no way to get out of the door; he could not get loose from Lemay. ’ ’

Eye witnesses verified these facts, and one witness stated that Lemay hit Hamn and knocked him over the soda fountain; that there was no place to which Hamn could retreat. "While Lemay had Hamn by the throat, chocking him, the latter pulled his gun, fired and killed his assailant. This court, in reversing a judgment against the Aetna wherein the jury had found the death to be accidental, said:

“The sum and substance of the testimony of Seth Baker, Morris Davis, Austin Brown, and Carroll Hamn shows clearly that Lemay was the wrong-doer and the aggressor; he brought on the trouble himself, and his conduct and actions were calculated to bring about the very thing that did happen. * * *
“It is our opinion that the evidence to the effect that Lemay was the aggressor and brought on the difficulty, and persisted to the point where Hamn shot him in self-defense, is not in substantial dispute, and that the verdict, as a matter of law, is without support.”

It will be readily observed that these facts bear no similarity to the facts presently before us. Summarizing the facts in the instant litigation, we find:

1. These men had been friends for several years, and there had never been any trouble between them.

2. They had drunk together and hunted together in the same group.

3. George had visited in the Criswell home several times, and had apparently been welcomed.

4. On the night of the shooting, George tried to get Criswell to take a drink with him; there was no other point of contention, and though pounding and slamming against the Criswell door, George never at any time made any threat toward Criswell or any member of his family.

5. George was unarmed.

6. No one in the house informed George that Criswell had a gun. Criswell himself testified that he said, “When I get my gun, I’m going to help you tear it down.” However, Mrs. Criswell testified that she only heard her husband repeatedly tell George to leave. Whichever statement was correct, the fact remains that George was not advised, and apparently did not know, that Criswell had a loaded gun, and ivas intending to shoot. It might be added that in addition to being dark both outside and inside the house, there was no window in the door, and the windows in the front of the house on either side of the door were, according to Criswell, blocked off by washing machines and various assorted items. Also, it being winter time, blankets were hanging over the windows to keep the air out.

7. Criswell himself testified that he only fired the shot as a warning, and had no intention of killing George.

We think under these circumstances, that there was no reason for George to believe that Criswell would shoot him. In fact, we have held similar killings to be accidental where the testimony of aggressiveness by the deceased was far stronger than in the instant case. In Chambers, the proof reflected that Chambers and three eye witnesses left Harrison in an automobile together for the town of Capps; all testified that Chambers was drinking, and was abusive toward Ii. P. Evatt; that Chambers had a large .38 caliber pistol in his possession, and when the last stop was made to take a drink, Chambers, sitting in the middle of the back seat suddenly pointed his pistol at Evatt; one of the other occupants, George Crump, screamed, “My God, don’t do that— jump.” Evatt testified that Chambers had the pistol in his hand, pointing it at him (Evatt), and that, thinking lie was drunk and was going to shoot, Evatt grabbed his own pistol and fired, killing Chambers. Further evidence reflected that the two men had previously quarreled over a few dollars, and that during the quarrel, both before leaving Harrison and after, Chambers had applied opprobrious names to Evatt. The court, without going into detail, mentioned that there were other circumstances which indicated that Chambers was not drunk, and that the position of the body and pistol did not accord with the manner of the killing as detailed by these eye witnesses. It was then pointed out, that under the well established rule of this court, the jury is the sole judge of the weight of the evidence, and if there is any substantial evidence to support the verdict, it will not be disturbed by this court on appeal. In the case now before us, both sides moved for a directed verdict at the conclusion of the evidence, whereupon the court discharged the jury, and took the case under advisement. Of course, each party making this motion, it was entirely proper for the court to take the case from the jury and decide the issue itself. National Garages, Inc. v. Barry, 217 Ark. 593, 232 S.W. 2d 655.

We are of the opinion that the testimony heretofore set out presented a question of fact as to whether George’s death was accidental as that term was used in the policy, and we hold that there was substantial evidence to support the position taken by the trial court. The judgment is thus affirmed, and we are asked by appellee ’s attorneys for an additional fee for services rendered on appeal. We think it proper to allow an additional fee of $500.00.

It is so ordered.

Byrd, J., dissents.

Conley Byrd, Justice.

During oral argument it was conceded by counsel for appellee that the basic rule of law involved in this case is that when an insured is the aggressor in an affray from which a serious injury reasonably might or should be expected to result and he is killed, the death is not the result of “accidental bodily injuries” and the insurer is afforded a defense to a suit upon such a clause. Peoples Loan and Investment Co. v. Travelers Insurance Co., 151 F. 2d 437 (1945) ; Lincoln Income Life v. Alexander, 231 Ark. 63, 328 S.W. 2d 266 (1959); Aetna Life Insurance Co. v. Lemay, 218 Ark. 328, 236 S.W. 2d 85 (1951); Gilman v. New York Life Ins. Co., 190 Ark. 379, 79 S.W. 2d 78 (1935); Price v. Businessmen’s Assurance Co., 188 Ark. 637, 67 SW. 2d 186 (1934).

It was also conceded that George was aggressively attempting to tear down Henry Criswell’s front door over Mr. Criswell’s objections. Under such circumstances, I can think of no gentlemanly act George would have performed had he been successful in breaking down the door, nor any reason for believing that George would be treated as a gentleman once he succeeded in entering the home — he certainly would not be in the position of expecting Mr. Criswell to comply with the rules of the Marquis of Queensberry. In my opinion, a person who successfully breaks down the home owner’s front door over the objections of the man of the house has no reason to expect any treatment other than being clobbered with something.

Under the foregoing analysis, I am unable to conceive why a person should not expect “serious injury” when he persists in breaking down the front door of a residence over the objections of the man of the house. Therefore, it would follow that the death was not accidental under the authorities cited above.

Nor can I find anything in Criswell’s statement that he only intended to scare George away from the door which would make this death accidental. A person playing russian roulette has five chances out of six of not being shot. The beneficiaries under a policy issued to a duelist could recover under the same reasoning by furnishing proof that the surviving duelist was such a poor shot that it was an accident he hit anyone.

For these reasons I would hold that the death vra,s not accidental.

      There is no contention on the part of appellant that George was intending to use the closed knife found by his body as a weapon.


author: Carleton Harris, Chief Justice.

text:
    Tyree Philmon, et ux v. Mid-State Homes, Inc.
    4714
    434 S.W. 2d 84
    Opinion Delivered November 25, 1968

      Wayne Foster for appellants.

      Spencer & Spencer for appellee.
   Carleton Harris, Chief Justice.

On July 11, 1962, appellants, Tyree Philmon and wife, executed a promissory note and mortgage to Jim "Walter Corporation securing the sum of $4,464.00, payable in 120 monthly installments of $37.20 each, payments to commence on September 12, 1962, and payable thereafter on the 15th day of each month. The note and mortgage were assigned to appellee, Mid-State Homes, Inc. The money borrowed was used in the construction of a Shell home, which has been occupied by appellants since that time. On March 24, 1968, suit was filed by appellee, seeking judgment in the amount of $2,497.40, and asking for foreclosure, if that amount, together with attorney’s fee and costs be not paid. Appellants asserted that a letter dated March 7, 1967, was ineffective as far as constituting a presentment of the note and an acceleration because of the fact that they were not in default on that date; further, that even had they been in default, appellee had waived its right of acceleration, and could not assert it. After hearing evidence, the trial court found that there had been a default and an acceleration, and that appellee was entitled to the foreclosure judgment; however, the court stated that a tender of the amount due had been made in open court, but that appellee had been put to trial in order to resolve the issue, and was accordingly entitled to an attorney’s fee and the costs of the action. Thereupon, the court stated that if the sum of $698.94, together with attorney’s fee and costs of the action be tendered and paid, the petition for foreclosure would be denied; otherwise, it would be granted. Appellants were unwilling to pay the costs and attorney’s fee, and a decree of foreclosure was entered. From such decree, comes this appeal

The factual background is as follows: Appellants were frequently late in making their payments; for instance, the transcript shows that the August 15, 1966, payment was received in September; the September payment received in October; the October payment received in November; the November payment received in December, and the December payment, due on the 15th, received on January 24, 1967. After another month, the January payment had not been made. According to Herbert Clarkson, an employee of Mid-State Homes, living in Tampa, Florida, and in charge of collections for the Arkansas area, the company decided, on February 28, 1967, to exercise its right of acceleration, and the Philmon account card reflects that it was placed in foreclosure on that date. The Philmon account was sent to the company’s attorney on March 1, and the attorney directed a letter to the Philmons on March 7, advising that the note and mortgage had been turned over to him. The Philmons were informed that the company would accept payment of the past due installments, together with past due insurance premiums, and a $25.00 attorney’s fee, totaling $282.34, provided this amount was received by March 21, 1967. The letter closed by stating that, if the loan were not placed on a current basis by that time, the foreclosure would proceed.

The Philmons made no response to this demand, and suit for foreclosure was instituted on March 24, 1967.

In the meantime however, on March 3, the Philmons had mailed the payment which had been due on January 15, and on March 17, the Philmons mailed another payment to take care of the installment due on February 15. It is the contention of appellants that these payments prevented their being in default; that when the note was presented and accelerated on March 7, there was no delinquency entitling appellee to acceleration, for, it is argued, under the provisions of the note, the February payment did not become delinquent until March 15, and when the note was accelerated, the Philmons were no longer in default.

The record reflects that appellants had lacked $10.00 of making a full payment on one occasion, contending that this shortage occurred for the payment due on February 16, 1964; also, one payment was $2.00 short. Further, insurance premiums due to be paid by appellants, but not paid, in the amount of ,$128.94, were charged to the account on August 15, 1965. Appellants seem to be under the impression that appellee is relying entirely upon these delinquencies to support its right of acceleration, and it is argued that, as to the $10.00 and the insurance premium, extensions were granted thereafter, an extension charge being made, and that in granting these extensions for consideration, appellee lost its right to accelerate the indebtedness. As to the $2.00 charge, appellants assert that the doctrine of De minimis non curat lex would surely apply.

It is not necessary to pass on the question of whether the failure to make these payments would constitute grounds for acceleration, for appellants either overlook, or ignore, the fact that the balance loas accelerated on February 28, 1967, and the file forwarded to appellee’s attorney the next day. At that time, irrespective of the three money items heretofore mentioned, appellants were delinquent in their payments, for the January 15, 1967, payment became delinquent on February 15, 1967, and, in fact, was not sent until after the balance had been accelerated. But, say appellants:

“For years the Philmons were as often in default as not, but such delinquencies seldom exceeded sixty days, or, if they did, an extension was purchased by which they paid the interest on the principal balance for the privilege of advancing those installments. ’ ’

It is true that the Philmons were often in default; the record reflects that payments were made irregularly, and 25 or 30 contacts were necessary to collect late payments, but the fact that the company had permitted the Philmons in the past to pay late did not preclude it from accelerating the balance on February 28, 1967. As stated in 59 C.J.S. Mortgages § 495(6) at 799 (1949):

“* * * The acceptance of late payments without accelerating the maturity of the debt secured by the mortgage or deed of trust does not bar the mortgagee from accelerating for default in a subsequent payment. The acceptance of defaulted interest does not prejudice the mortgagee’s right to declare the entire mortgage due on a subsequent occurrence of a similar default.”

In the instant case, the note contained the provision :

“* * * in the event of default in payment of any installment for a period of thirty days or the failure to fulfill fully and promptly the obligations of the mortgage given to secure this note, the holder of this note may, at its option, declare all of the remainder of said debt due and collectible and any failure to exercise said option shall not constitute a waiver of the right to exercise the same at any other time.”

See Johnson v. Guaranty Bank and Trust Company, 177 Ark. 770, 9 S.W. 2d 3, where we declared such a provision legal and valid, and upheld appellee’s action in accelerating the time for payment of the indebtedness.

It is also asserted that the letter of March 7 from appellee’s attorney (which appellants claim was not received until after March 17) made demand for nearly $400.00 more than was due on the principal indebtedness, and that $42.00 more was demanded for insurance than was paid out by the company. Admittedly, the mistake was made; however, when instituting suit, appellee sued for the correct amount. Appellants cannot rely upon this fact, for it was not even necessary that appellee give notice of the election to accelerate. The general rule is that, in the absence of a provision in the mortgage requiring notice, the mortgagee need not give such notice. 59 C.J.S. Mortgages § 495(5)e. at 793 (1949). Here, not only was there no provision requiring notice, hut to the contrary, the mortgage contains a provision waiving notice, and providing that the option to accelerate may be exercised at any time after default.

Complaint is made that the two payments (heretofore mentioned) sent to the company were retained five months before being returned. It appears from the evidence, however, that these payments were mailed by the company to its attorney within a short time after receiving them, but the attorney apparently overlooked sending them back to appellants for several months. At any rate, this does not affect the legal issue before us, as it had nothing to do with the January delinquency.

Of course, while one is generally inclined to be sympathetic with persons who are losing their homes, the fact remains that a mortgagee is entitled to receive its payments when due, and without going to a lot of additional trouble, and sometimes expense, to obtain its money. Here too, the Chancellor was apparently sympathetic, and he announced in open court that he was prepared to enter what he deemed to be an equitable order. From his remarks:

“* * * The Court finds there has been a default and an acceleration and that the Plaintiff would be entitled to a foreclosure judgment except for this alternate type of decree the Court will enter. It has here this morning received in open Court tender of $698.94. The Court is of the further view that the Plaintiff has been put to trial for the resolvement of the issue and in that event is entitled to the attorney’s fee and the costs of the action. Therefore, it will be the order of the Court if the sum of $698.94 with the attorney’s fees and costs of the action requested in the Complaint is tendered actually and paid over here, then the petition for foreclosure will be denied. Otherwise it will be awarded.”

Appellants declined to pay the attorney’s fee and costs, and the decree was accordingly entered. We agree with the Chancellor that the company was entitled to those two items, and the payment of same being refused, there was no error in the court’s entering the decree complained of.

Affirmed.

      Thereafter, appellants paid the amounts due into the registry of the court.

      The last extension was granted on November 15, 1965.


author: George Rose Smith, Justice.

text:
    Opal Munson v. Bobby M. Mason, Guardian, et al
    5-4680
    434 S.W. 2d 815
    Opinion Delivered November 25, 1968
    [Rehearing denied January 13, 1969.]

      Cockrill, Laser, McGehee, Sharp & Boswell for appellant.

      Herrod & Cole for appellees.
   George Rose Smith, Justice.

This action was brought by two of the appellees, Mrs. Bobby M. Mason and her 13-year-old daughter, Sandra Kay, for personal injuries, and by the third appellee, Bobby M. Mason, for loss of consortium, medical expenses, and property damage. The jury awarded $2,900 to Mason, $1,500 to his wife, and $200 to Mason as the natural guardian of his daughter.

The plaintiffs filed a motion for a new trial, principally upon the ground that the evidence clearly established pecuniary injuries in excess of the verdicts. The trial judge set aside all three awards, finding that the verdict “failed to do justice and enforce the rights of the parties.” This appeal is from the order granting a new trial.

In the court below there was no issue of comparative negligence. As the defendant, Mrs. Munson, was driving her car on a street in North Little Rock her brakes suddenly failed. In an effort to avoid a collision Mrs. Munson swerved to her left and over the curbing, but she eventually struck the rear end of the Mason car, which was being serviced in a filling station. Mrs. Mason and Sandra Kay were sitting in the front seat. Mrs. Mason’s neck, shoulder, and back were injured, although the extent of her injuries was a matter of much dispute. Sandra Kay suffered a fractured arm, which was set promptly and healed satisfactorily.

We find no abuse of discretion insofar as Mason is concerned. According to the testimony, his car was worth $4,400 immediately before the accident and $1,500 immediately after it. Thus the $2,900 verdict fully compensated him for his property damage. It is undisputed, however, that he also incurred medical expenses for his wife’s and daughter’s injuries in excess of $2,-375. Although the jury may have believed that not all those expenses were necessaiily attributable to the accident, unquestionably some of them were. If the trial judge found that, by the weight of the evidence, Mason’s pecuniary injuries exceeded the amount of the award, it was his duty to set it aside upon the plaintiff’s motion. Bockman, v. World Ins. Co. 222 Ark. 877, 263 S.W. 2d 486 (1954). We cannot say that the judge abused his discretion. To the contrary, in our opinion the preponderance of the proof supports his action.

A different question is presented in the case of Mrs. Mason and Sandra Kay. The controlling statute provides : “ A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained.” Ark. Stat. Ann. § 27-1902 (Repl. 1962). We have construed the statute to mean that in a personal injury case a new trial cannot be granted for the inadequacy of the verdict (except one for nominal damages) when the injury, such as pain and suffering, is not susceptible of definite pecuniary measurement. Worth James Construction Co. v. Herring, 242 Ark. 156, 412 S.W. 2d 838 (1967).

That case is controlling here. Neither Mrs. Mason nor Sandra Kay asserted any cause of action for injuries that were pecuniarily measurable, nor was any such cause of action on their part submitted to the jury. The court’s order granting a new trial did not specifically mention the inadequacy of the verdicts, but no other basis for the order is to be found in the record. We are compelled to conclude that the court’s action was contrary to the statute.

In Mason’s case the court’s order was correct, but with respect to the other two plaintiffs the order is reversed and the cause remanded for reinstatement of the verdicts.


text:
    B. Bryan Larey, Commissioner of Revenues v. Mountain Valley Spring Company
    5-4757
    434 S.W. 2d 820
    Opinion Delivered November 25, 1968
    [Rehearing denied January 13, 1969.]

      Lyle Williams, J. Victor Harvey and Hugh L. Brown for appellant.

      Wright, Lindsey & Jennings for appellee.
   George Rose Smith, Justice.

The issue here is the appellee’s liability for state income tax. On May 31, 1966, the appellee, an Arkansas corporation that had done business since 1882, filed its certificate of dissolution with the Secretary of State. By the terms of the statute the corporation was thereupon dissolved. Ark. Stat. Ann. § 64-902 (Repl. 1966). Later in the same day the company, pursuant to its plan of liquidation, sold its assets for more than their book value. The company did not report the profit as income, its position being that the gain was taxable to the shareholders who received the proceeds of sale under the plan of liquidation.

The Commissioner of Revenues disagreed with that view and levied an assessment of $35,535.50 against the corporation. The Company paid the assessment under protest and brought this suit to recover the money. This appeal is from a decree upholding the taxpayer’s contention.

We think the decree must be affirmed on the authority of Commissioner of Revenues v. Willey Planting Co. 230 Ark. 815, 327 S.W. 2d 81 (1959). There, upon essentially similar facts, we held that the liquidating profit was not taxable to the corporation. That result was reached “in accordance with the statute, and regardless of the validity of Article 45 of the regulations adopted by the Revenue Commissioner.” We construe the Willey opinion to mean that the profit was not taxable to the corporation because the taxing statute levies the tax “with respect to carrying on or doing business.” Ark. Stat. Ann. § 84-2004 (Repl. 1960). A dissolved corporation, in selling its assets for the purposes of liquidation, is not carrying on or doing business within the meaning of the income tax law.

The Commissioner seeks to distinguish the Willey case on the ground that the general statute with respect to the dissolution of corporations has since been so modified that, in the language of counsel, “the effect of the legislative change, intended or un-intended, was to finally apply the levy of the corporate income tax upon the gains derived from the sale of the assets of a dissolved corporation.”

We are not convinced by the Commissioner’s argument. When the Willey case was decided the general corporation law provided that upon dissolution the directors of the corporation should be trustees of the corporate assets for a period of three years, for liquidation purposes. Act 255 of 1931, §§ 41 and 42. By the present law, Act 576 of 1965, the existence of the corporation as a legal entity is preserved indefinitely, and the title to its property remains in the corporation rather than vesting in its trustees. Ark. Stat. Ann. § 64-904.

It seems clear that the change in the general corporation law was not intended by the legislature to alter corporate income tax liability in the manner suggested by the Commissioner. The statute that he relies upon, Act 576 of 1965, is a comprehensive corporation code covering almost' 150 printed pages. In a note to the section now cited the drafting committee explained that the prior provision limiting the effective life of the corporation to a period of three years after dissolution was being changed to avoid the difficulty that arose when the trustees of the dissolved company failed to get the title to real estate out of the corporation within three years. Note to Ark. Stat. Ann. § 64-904. "We are certain that the legislature did not intend by that trivial change, fully explained by the draftsmen, to bring about the far-reaching tax consequences now urged by the appellant.

Affirmed.


author: Paul Ward, Justice.

text:
    Mid-State Construction Co. v. Henry B. Means, Judge
    4735
    434 S.W. 2d 292
    Opinion Delivered November 25, 1968
    [Rehearing denied December 23, 1968.]

      Terral, Rawlings, Matthews & Purtle for petitioner.

      James C. Cole for respondent.
   Paul Ward, Justice.

The only question presented here is whether the circuit court or the Workmen’s Compensation Commission has jurisdiction of a cause of action which arose out of a highway collision. The facts presently set forth are not in dispute.

On October 5, 1967 John Brooks was killed while driving a truck, loaded with asphalt, from the plant site of Mid-State Construction Co. (petitioner here) located near Malvern to a job site near Arkadelphia. The truck belonged to Mrs. W. L. Tatum, d/b/a Gr. T. Trucking. On November 20, 1967 Reta Brooks (widow of deceased) filed a claim with the Arkansas Workmen’s Compensation Commission (called Com.) contending her husband was an employee of petitioner, and asking for compensation. On December 21, 1967, petitioner responded to said petition, alleging the deceased was not its employee but was an independent contractor and was acting as such at the time of his death.

Before any further steps were taken before the Commission, the widow filed, in the circuit court, a “Complaint for Declaratory Judgment” asking the court to declare that the deceased was an employee of petitioner. After the introduction of interrogatories the trial court gave petitioner ten days to answer or to further plead, preparatory to trying the issue raised in the complaint.

On July 12, 1968 petitioner (Mid-State) asked this Court to prohibit the circuit judge from proceeding further, and to allow time for filing a transcript and brief. This request was granted, and the issue is now presented to us on briefs by both parties.

Petitioner (Mid-State) contends that the circuit judge should be prohibited from proceeding further in the declaratory judgment action because:

“The subject matter of this litigation lies solely with the Arkansas Workmen’s Compensation Commission, and the Hot Springs County Circuit Court is without jurisdiction.”

It is our conclusion that, under the undisputed facts in this case, the Writ should be granted. This conclusion is based on our opinion in the case of City of Cabot v. Morgan, 228 Ark. 1084-1085, 312 S.W. 2d 333. There, the rule applicable in the case here was plainly stated by this Court in the following language:

“It has been pointed out that declaratory judgment statutes, such as our uniform act, Ark. Stats. 1947, Title 34, Ch. 25, are intended to supplement rather than supersede ordinary causes of action. Anderson on Declaratory Judgments, § 48. In harmony with this principle it is well settled that declaratory relief should be withheld when the same questions are already at issue in a pending case.”
(Citing Cases.)

It must be conceded that, in the case before us, the issue (was the deceased an employee of Mid-State?) was pending before the Commission when the circuit court attempted to assume jurisdiction and decide the same issue.

Granted.

Harris, C.J., concurs.


text:
    John M. Geyer, Jr., et ux v. First Arkansas Development Finance Corporation; and Southwest Factoring Corporation
    4764
    434 S.W. 2d 301
    Opinion Delivered November 25, 1968
    [Rehearing denied December 23, 1968.]

      W. Tillar Adamson for appellants.

      Rose, Meck, House, Barron, Nash & Williamson and Warren & Bullion for appellees.
   Paul Ward, Justice.

This is an appeal from a chancery decree involving two foreclosures. The material facts summarized below are not in dispute.

John M. Geyer, Jr. and his wife (appellants here), on February 19, 1963, executed their note for $60,000 to First Arkansas Development Finance Corporation (an appellee here, and referred to as Corporation). The note was secured by a first mortgage on certain real estate, and also by a security agreement on personal property — all belonging to appellants. Later, appellants executed their note to Southwest Factoring Corporation (an appellee and referred to as Factoring Co.) in the sum of $51,910.25, which was secured by a second mortgage lien on the land included in the first mortgage mentioned previously.

On April 18, 1967, after the above mentioned note became delinquent, Corporation filed suit for judgment for balance due, and for foreclosure of its mortgage, naming appellants and Factoring Co. defendants. Factoring Co. asserted its right to judgment and a foreclosure. Appellants admitted, in their answer, the execution of said notes and securities, but denied they were liable to pay any attorney’s fees. By way of cross-complaint appellants alleged Corporation required them (as a prerequisite to the loan) to purchase one of its debentures, in the sum of $3,000, due in fifty years, without interest — asking that the $3,000 be allowed as a credit on their note. They also contended that the Factoring Co. note was usurious. (Other parties were made defendants in the suit but they are not involved on appeal).

After hearing testimony on the issues raised, the trial court entered a Decree, holding, in material parts:

(1) Corporation entitled to judgment against appellants for balance due in the amount of $44,-554.93 and interest; for $1,407.70 — money paid on taxes, and; for $2,000 as attorney fees.
(2) Denied appellants credit for the $3,000 debenture.
(3) Gave Factoring Co. judgment against appellants in the sum of $60,475.45 and interest on the note, and $2,000 for attorney fees, and also held said note was not usurious.
(4) Ordered a foreclosure and sale of the securities, and retained jurisdiction for certain specified purposes.

On appeal, appellants rely, for a reversal, on the separate points, which we now examine in order named.

One. It is contended here by appellants that the trial court erred in charging them with an attorney’s fee, citing Ark. Stat. Ann. § 68-910 (Repl. 1957), which reads:

“A provision in a promissory note for the payment of reasonable attorney’s fees not to exceed ten per cent of the amount of principal due, plus accrued interest, for services actually rendered in accordance with its terms is enforceable as a contract of indemnity.” (Emphasis supplied.)

It is then pointed out by appellants that the notes here in question contain no such provision.

We are unable to agree with appellants’ contention. Appellants are correct in stating there is no such provision in the note, hut there is language in the note and mortgage which, we think, justified the court’s action. The note contains this language:

“All the terms, covenants, conditions, provisions, stipulations, and agreements in said Deed of Trust and in said Security Agreement contained are hereby made a part hereof to the same extent and with the same effect as if the same were fully set forth herein.”

In the Twelfth paragraph of the Deed of Trust there appears the following language:

“It is furthermore agreed that said party of the first part (appellant) will pay to parties of the second and third parts, any and all sums, including costs, expenses and reasonable attorney’s fees which they may incur ...”

In The W. T. Rawleigh Co. v. Wilkes, 197 Ark. 6 (p.9), 121 S.W. 2d 886, this Court said:

“The general rule is that in the absence of anything to indicate a contrary intention, instruments executed at the same time, by the same parties, for the same purpose, and in the course of the same transaction, are, in the eye of the law, one instrument, and will be read and construed together as if they were as much one in form as they are in substance.”

See also Ark. Stat. Ann. § 85-3-119 (1961 add.) which, in material part, reads:

“As between the obligor and his immediate obligee . . . the terms of an instrument may he modified or affected by any other written agreement executed as a part of the same transaction . . . .”

Two. As previously mentioned, appellants contend the trial court erred in refusing to deduct the $3000 debenture from the $60,000. The thrust of appellants’ argument is that the court’s refusal violated the U. S. and Arkansas constitutions in that it deprived them of their property without due process of law. This argument is largely based on language used in Act 567 of 1957 under which Corporation was organized. Specific attention is called to language used in the first sentence in § 15 and paragraphs three and four in § 17 of said Act. We deem it unnecessary to reply to the able and forceful arguments presented on the question of unconstitutionality, because we feel that this issue was decided adversely to appellants in the case of Andres v. First Ark. Development Finance Corp., 230 Ark. 594, 324 S.W. 2d 97.

We further point out that the constitutional guarantee of “due process” is designed to prevent abuse of personal rights by the state or federal government, and does not refer to dealings between individuals. Also, in the case here under consideration it cannot be reasonably contended that Corporation forced appellants to purchase the debenture. Appellants were free to accept or reject the conditions of the loan.

Three. It is finally contended by appellants that the note given by them to Factoring Co. is usurious, and that the trial court erred in holding otherwise. The note in question was executed on August 11, 1964 and is in the face amount of $51,910.25. It is not abstracted but is set out, as exhibit No. 8, at page 154 of the transcript. We find nothing in the abstract or the transcript which clearly explains why the note was executed, except it appears it is in some manner related to a “factoring agreement” whereby appellants were to sell and Factoring Co. was to buy certain open accounts belonging to the business being operated by them. The note specifically states that it draws “interest from date until paid at the rate of 6% per annum”, and it contains no reference to the “factoring agreement”.

In view of the above facts the burden was on appellants to prove usury — as this Court has uniformly held for many years. Holt v. Kirby, 57 Ark. 251 (p.256), 21, S.W. 432 and Cox v. Darragh Company, 227 Ark. 399 (402), 299 S.W. 2d 193. Also we point out the rule announced by this Court many years ago that ‘ ‘ The court will not presume a contract to be usurious”. Sawyer v. Dickson, 66 Ark. 77, 48 S.W. 903.

We think it sufficient in this case, in affirming the trial court, to point out that appellants, in their brief, have called our attention to no evidence that the note was usurious. The evidence deals solely with the factoring agreement. The only case relied on by appellant for a reversal is Manhattan Factoring Corp. v. Ors burn, 238 Ark. 947, 385 SW. 2d 785. However, in that case no promissory note was involved and is, therefore, not applicable to the facts in this case.

Finding no reversible error, the decree of the trial court must be, and it is hereby, affirmed.


author: Lyle Brown, Justice.

text:
    C. E. Jackson and The Kroger Company v. Toy C. Hemphill
    4738
    434 S.W. 2d 818
    Opinion Delivered November 25, 1968
    [Rehearing denied January 13, 1969.]

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

      Gordon, Gordon & Eddy for appellee.
   Lyle Brown, Justice.

This is a slip-and-fall case. Mrs. Hemphill recovered judgment against The Kroger Company and the manager of its Morrilton store, C. E. Jackson. Defendants appeal from the refusal of the trial court to grant motions for a directed verdict which were made at the conclusion of plaintiff’s testimony and again at the close of all the testimony.

On the question of liability Mr. and Mrs. Hemphill were claimant’s only witnesses and their testimony can be summarized in a few sentences. Around its modern store in Morrilton, Kroger maintains an asphalt parking area of considerable size, with marked spaces. The Hemphills drove onto the lot on a Saturday in September. It was around noon and the weather was fair and sunny. The parking spaces appeared to be filled so Mr. Hemphill parked in an unmarked area in the general proximity of the front doors to the store. As Mrs. Hemphill alighted from the car she stepped on a banana, the color of which was yellow “and it was turning dark.” After Mrs. Hemphill was helped to her feet, the store manager was directed to the scene where he retrieved the remains of the banana and threw it in a nearby trash can.

Appellant Jackson, the store manager, described the precautions customarily followed to reduce the danger of accidents such as Mrs. Hemphill’s. He checks the outside early each morning when the lot is free of cars. The employees delivering groceries to customers’ cars are instructed to pick up any foreign objects on the parking lot. The area is swept periodically. He has no employee whose exclusive responsibility is to pick up debris on the parking lot.

We agree with appellee’s counsel that this case hinges on whether the proof is adequate to show the banana to have been on the parking lot for a time sufficient to find appellants negligent in failing to discover it. There was no testimony as to when, or by whom, the banana was deposited on tbe lot, or from whence it came.

The only evidence shedding light on the time element is the condition of the banana. It is evident that the peeling contained either all or a substantial part of the pulp. Mrs. Hemphill testified that a good portion of the pulp stuck to her shoe and her husband removed it. She said it was in the shape of an unpeeled banana and it squashed when she stepped on it. As to color, she said the banana “was yellow and it was turning dark.” Her husband testified: “I really — the banana was yellow, and it was beginning to turn dark, and it was squshed.”

There are numerous cases from other jurisdictions wherein the condition of the foreign object is used with approval to determine the length of time it has remained in a particular place where it is likely to cause injury. A case often cited in that regard is Anjou v. Boston Elevated Ry. Co., 94 N.E. 386 (Mass. 1911). The banana peel on the carrier’s platform was described in these terms: “It felt dry, gritty, as if there were dirt on it,” . . . “trampled over a good deal,” . . . “flattened down, black in color, ...” There it was held that those descriptions made a jury question on time element. In a much later case a banana peeling was described as “four inches long, all black, all pressed down, dirty, covered with sand and gravel, dry and gritty looking.” It was held those facts warranted an inference of negligence on the part of the bus company or its servant. Scaccia v. Boston Elevated Ry. Co., 57 N.E. 2d 763 (Mass. 1944). To the same effect see Great Atlantic & Pacific Tea Co. v. Popkins, 69 So. 2d 274 (Ala. 1953).

It was incumbent on Mrs. Hemphill to show by substantial testimony that the banana had been in the parking area an unreasonable length of time. Kroger Grocery & Baking Co. v. Dempsey, 201 Ark. 71, 143 S.W. 2d 564 (1940). The most she established was that a yellow banana, which she found in the early stages of changing color, had been dropped or thrown by an unknown person, in the area near where her husband parked. That proof does not begin to carry the strength of the evidence which we have recited from approved cases.

A problem similar to the case at bar is found in Owen v. Kroger Co., 238 Ark. 413, 382 S.W. 2d 192 (1964). There we held that a case was made for the jury as to the length of time the banana peeling had been on the floor. But there the jury could have found that the peeling had been left on the floor for a substantial time by small boys; that a store employee was aware that the boys had been eating bananas in the store earlier in the day; that the intervening time was sufficient to cause the peeling to become dark; and that the store employees failed to take reasonable precaution to discover the presence of the object. Another distinction between Owen and this case is that in Owen the peeling was inside the store. Common knowledge would dictate that a foreign object in an aisle inside the store would, or should, ordinarily be discovered sooner than if the same object were placed on a parking lot. That is because most store personnel are confined to the store quarters and are constantly working the aisles.

This case must be reversed and, as was done in Dempsey, dismissed, since it appears to have been fully developed.

Reversed and dismissed.

Harris, C.J., dissents.

The Chief Justice is of opinion there was sufficient evidence to take the case to the jury and would affirm.


author: John A. Fogleman, Justice.

text:
    Dr. Joe F. Rushton v. U. M. & M. Credit Corporation
    5-4741
    434 S.W. 2d 81
    Opinion Delivered November 25, 1968

      Warren & Bullion for appellant.

      W. D. McKay and Rose, Meek, House, Barron, Nash & Williamson for appellee.
   John A. Fogleman, Justice.

Dr. Joe F. Rushton has appealed from a judgment in favor of U. M. & M. Credit Corporation for the balance due upon an installment note, representing the balance of the purchase price of a piece of equipment called a Loggers Yardster. The purchase was made on August 21, 1964 from Taylor Machine Works. The sale and purchase were on a conditional sale contract, dated on the date of sale, and reciting a purchase by “the undersigned.” Throughout the contract, the purchaser is referred to by that designation only. The name of Numark Manufacturing Company was signed by John J. Drew, Vice President and General Manager, on lines designated for “Signature of Purchaser.” Immediately above the name of Nu-mark Manufacturing Company appeared the signature “Joe P. Rushton, M.D., Trustee.”

Attached to this contract was a promissory note of the same date for the sum of $12,471.58, the balance of the purchase price for the equipment after credit was given for a trade-in allowance. The note was signed in the lower right-hand corner by Joe P. Rushton, Trustee, and by Numark Mfg. Co., Inc. by Mr. Drew as Vice President and General Manager. Taylor Machine Works assigned the contract to U. M. & M. Credit Corporation by assignment printed on the reverse side of the contract and dated August 21, 1964. The note was also endorsed for Numark by its controller. A letter transmitting the conditional sales contract and note to the credit corporation bore the same date. It was signed for the Taylor Machine Works by its controller. A copy of a letter from Taylor Machine Works to the Secretary of the State of Arkansas forwarding a financing statement on the contract was enclosed with the letter to appellee. In its letter Taylor advised appellee that the evidence of filing a financing statement would be furnished when received. On August 24, 1964, U. M. & M. mailed its check for $10,850.27 to Taylor Machine Works for the purchase of the contract and note.

Numark filed bankruptcy proceedings after having made some payments on the note. After default, appellee accelerated the unpaid balance of the note and filed a claim as a secured creditor in the bankruptcy proceedings. The claim was denied because a copy of the financing statement had not been filed in Columbia County where Numark did business [See Ark. Stat. Ann. § 85-9-301 (3) (Add. 1961).] Appellee then filed this suit against Dr. Rushton who defended upon the ground that he was released by reason of the fact that appellee had impaired the collateral for the instrument through failure to properly effect a security interest by filing the financing statement in Columbia County.

The parties entered into stipulations to the following effect:

1. On August 21, 1964, Rushton and Numark purchased the equipment from Taylor Machine Works.
2. Rushton and Numark executed their promissory note in evidence of their agreement to pay the unpaid balance of the purchase price in monthly installments.
3. Rushton signed the contract.and note as “Joe F. Rushton, Trustee,” but did not indicate the trust for which he was signing or undertake to limit his personal liability.
4. For value received, Taylor Machine Works sold the note to U. M. & M. Credit Corporation and the latter acquired the same for value in good faith without notice that it was overdue or had been dishonored, or of any defense against or claim to it on the part of any person.
5. A financing statement pursuant to the Uniform Commercial Code was prepared by Taylor Machine Works and executed by it, Numark and Rushton. A copy of this statement was filed in the office of the Secretary of the State of Arkansas on August 25,. 1964. Taylor Machine Works failed to file a copy in the office of the Circuit Clerk of Columbia County — the only county in which either Rushton or Numark had a place of business.
6. That Henry Bassi, if present, would testify under oath that:
a. He is Assistant Manager of the Memphis Office of appellee;
b. appellee in no way participated in the filing of the “Financial Statement”;
c. on August 24, 1964. appellee purchased the note and contract and mailed its check to Taylor Machine Works, 'and at that time appellee assumed the financing statement had been properly filed.

Bassi testified, on interrogatories, that the note and contract were received by appellee on August 24, 1964, the date of the purchase by it. He admitted that no one in U. M. & M. Credit Corporation, either before or after purchase of the note and contract, made any investigation to determine if the conditional sale contract had been filed so as to perfect a security interest under the Commercial Code.

In rendering judgment, the circuit judge made the following findings:

“The plaintiff is an innocent holder in due course of the instrument sued upon;
The plaintiff has not unjustifiably impaired any collateral for the instruments which were given by or on behalf of the defendant or any person against whom either plaintiff or defendant had a right of recourse, and
That the plaintiff is entitled to recover against the defendant in the sum of $9,700.06 plus costs and an attorney’s fee in the sum- of $500.00.
IT IS THEREFORE, by the Court, Considered, Ordered and Adjudged that the plaintiff U. M. & M. Credit Corporation have judgment against the defendant Dr. Joe F. Enshton in the sum of $10,-200.06, plus all its costs herein expended.”

While appellant urges three points for reversal, the view we take renders consideration of appellant’s contention that he was an accommodation endorser unnecessary. It does not matter whether appellant was an accommodation endorser. If he had been, appellee’s knowledge that he was would not relieve him of liability. Section 85-3-415 (2). Furthermore, he would not have to be an accommodation endorser to seek relief under § 85-3-606 because “any party to an instrument” as used therein is broad enough to include all makers and endorsers. Neither would appellant’s liability be affected by reason of the fact that he signed as Trustee, because he did not state for what trust he was acting. Section 85-3-403.

Appellant’s second point is the contention that appellee was not a holder of the note in due course and could not recover because of § 85-9-207 which requires a secured party to use reasonable care in the custody and preservation of collateral and not fail to meet any obligation to preserve his security interest in the collateral. In view of the stipulation that appellee acquired the note for value in good faith without notice of any defense against it by any party, we find it difficult to understand this argument. (See § 85-3-302 defining a holder in due course.) It is based upon these facts:

1. The forms on which the sales contract and note were drawn were furnished to Taylor Machine Works by appellee, whose name was printed in assignment as assignee. At the foot of the contract appeared the printed words “Original for U. M. & M. Credit Corporation” and at the foot of the note, the words “.Negotiable and payable at the office of U. M. & M.”.
2. The assignment was signed and mailed on the same date the sale was made.
3. Taylor advised appellee that it would forward evidence of filing when received.
4. Appellee had purchased 80 such contracts from Taylor in the two years just preceding this transaction.

Assuming, without deciding that § 85-9-207 applies in this case, we cannot say that the trial court’s finding is not based on substantial evidence. The stipulation itself certainly is adequate support for this finding.

Appellant’s third point is that Dr. Bushton was released by appellee by unjustifiable impairment of the collateral through failure to complete the proper filing of the financing statement, relying upon § 85-3-606. Although appellant’s argument that this section applies to such an omission may have merit, we find adequate support for the trial judge’s finding on this point without deciding whether this section has such application. Appellant argues that Taylor was acting as the agent of appellee in the transaction and that its failure to complete the filing was chargeable to appellee, and that appellee itself had ample opportunity to meet the filing requirements. In addition to the stipulation that appellee in no way participated in the filing procedures, and that it assumed, at the time of purchase, that the financing statement had been properly filed, if his real role in the transaction.as between him and Numarlc had been exactly as he contended, it also appears that appellant could have seen to the filing under the Code as well as appellee. See Nation Wide, Inc. v. Scullin, 256 F. Supp. 929 (D.C., N.J. 1966) aff’d 377 F. 2d 554.

Since the finding that appellee had not unjustifiably impaired the collateral is sufficiently supported, there was no release of appellant. We find no error, so the judgment is affirmed.