author: Conley Byrd, Justice.

text:
    Jack Allen BARBER v. STATE of Arkansas
    5465
    450 S. W. 2d 291
    Opinioñ delivered February 9, 1970
    [Rehearing denied March 9, 1970.]

      Shaw, Jones é- Shaw and Dailey ér Woods, for appellant.

      Joe Purcell, Attorney General; Don Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Jack Allen Barber was apprehended by officers on February 13, 1969, in the Town & Country Liquor Store in Fort Smith, while tying up two women employees. He was charged by informations with the crimes of grand larceny, robbery and assault with intent to kill. At trial the charge of robbery was reduced to assault with intent to rob and he was tried on that charge only. In accordance with the jury verdict, he was sentenced to five years in the penitentiary for assault with intent to rob. For reversal he relies upon the following points:

“I. That the trial court had no jurisdiction to dispose of defendant’s motion on July 3, 1969, while the matter was removed to the United States District Court.
II. The trial court erred in granting the State a continuance in case No. 1325 and in case No. 1327. That the continuance granted the State violates the speedy trial provision of the sixth amendment to the United States Constitution.
III. The trial court erred in refusing to grant the defendant a preliminary hearing as provided by the law of Arkansas and the Constitution of the United States of America. That the manner in which the Arkansas preliminary hearing statute is applied in the Arkansas trial courts and as applied in this case violates the due process clause of the Arkansas Constitution and the due process and equal protection clauses of the United States Constitution.
IV. That the trial court erred in refusing to grant a change of venue.
V. That the trial court erred in denying the appellant’s motion to make available funds to employ one medical expert of appellant’s own choosing to develop appellant’s defense of insanity.”

POINT I. The record shows that on February 14, 1969, appellant Barber, with his two co-defendants, was arraigned before the Honorable Paul Wolfe, Circuit Judge, and in the presence of his retained counsel, Mr. Jack Rose, entered a plea of not guilty to all three counts then pending against him. On March 24th Mr. Rose, upon the request of Barber, was permitted to withdraw as counsel for BarberriAL-the-same time Barber filed a number of motions, which. he had prepared himself, attacking the qualifications of Judge Wolfe to preside at his trial, requesting that the informations be quashed because no preliminary hearing had been held, for a change of venue, and for reduction of bail. Because of the suggestion of disqualification of the regularly elected trial judge, the Chief Justice appointed the Honorable Carl Creekmore to preside in the case. Thereafter Judge Creekmore held a number of hearings for the purpose of appointing counsel, releasing counsel upon appellant’s request and finally for determining whether Judge Wolfe was disqualified to act in the case. Following a hearing on June 16th, Judge Creek-more decided that Judge Wolfe was not disqualified. Appellant on June 19th filed a petition to remove his prosecution to the Federal District Court.

Some time between June 16th and July 3rd Judge Wolfe resumed his duties of hearing appellant’s case. On July 3rd, at the request of appellant, Judge Wolfe held a hearing on appellant’s motions for a preliminary hearing, to quash the information and for a change of venue. At the beginning of the hearing the court let the record show why he re-entered the case and after so doing, asked counsel for appellant which motions they wanted to take up and in what order. At that point the following occurred:

“Mr. Core: Your Honor, Mr. Ledbetter has an objection he wants to make, and, if I may, I’ll respond to what you just said about those witnesses.
The Court: All right.
Mr. Ledbetter: If the Court please, Mr. Barber requests that we state this into the record for him. The defendant has asked me to object to the Court’s jurisdiction in these proceedings on the groupd that the Court has not ruled on his motion to quash, and because of this and other civil, constitutional reasons this Court lacks jurisdiction to proceed in this matter.”

During an examination of Miss Louise Patten, the Chief Deputy Circuit Clerk, about what the trial court record contained, the following occurred:

“The Court: I want to ask one question. What is that last document you referred to, Mr. Ledbetter?
Mr. Ledbetter: My notice filed on June 19th.
The Court: May I see that? Mr. Ledbetter, I’m looking here at what I believe purports to be this motion. Would you mind coming up and identifying it for me. I’m speaking of the petition filed in the United States District Court.
Mr. Ledbetter: Yes, sir, that’s the document and there’s the notice that was filed.
The Court: You’re telling me that this is a true and correct copy of the petition filed in the United States District Court for the Western District of Arkansas on behalf of Mr. Barber pertaining to the cases now before the Court?
Mr. Ledbetter: Yes, sir.
The Court: The cases here.
Mr. Ledbetter: An exact copy.
The Court: And that this document, this pleading here, is also before the Court at this time, Mr. Ledbetter?
Mr. Ledbetter: No, sir, it’s not.
The Court: It’s part of the record, isn’t it, before the Court?
Mr. Ledbetter: It’s part of the record in that sense, yes, sir.
The Court: All right, sir, thank you. Anything else of Miss Patton?
(Witness is excused.)
Mr. Ledbetter: If the Court please, in support of our motion, we don’t intend to introduce any more testimonial evidence, but we would like to make an argument on it.
The Court: Mr. Barber, I’m asking you personally, do you have anything else that you wish to offer on behalf of this motion for a preliminary hearing?
Mr. Barber: Your Honor, I would like only to reiterate my objection that Mr. Ledbetter read in the record a few moments ago about jurisdiction of the court.
The Court: At the start of the proceeding?
Mr. Barber: Yes, sir.
The Court: That this Court has no jurisdiction?
Mr. Barber: Yes, sir.
The Court: You want the motion to quash ruled on?
Mr. Barber: Yes, sir.”

On September 16th, before commencement of testimony in appellant’s trial, the following occurred:

“Mr. Ledbetter: I have one other motion — we’d like to renew all motions that we had that were denied while the case was on removal to the federal court for the reason that we feel that at the time the court passed on them the court didn’t have jurisdiction.
The Court: Those motions will also be denied. (Barside discussion concluded)”

We find no merit in appellant’s contention that the trial court had no jurisdiction to dispose of defendant’s motion on July 3rd, 1969, while the matter was removed to the federal district court. It appears to ús from the record that the hearing was held at petitioner’s request and for his benefit — i. e., he insisted that he wanted the motions heard even after the trial court became aware of the removal petition. Further, the record conclusively shows that the motions were again made at appellant’s trial on September 16th following the August 6th remand from the district court and the trial court certainly had jurisdiction at that time to deny the motions.

POINT II. Appellant here not only argues that the trial court erred granting the State a continuance in cases No. 1325 and No. 1327, the larceny and intent to kill informations, but also that he was denied a speedy trial and that the trial of the other two offenses would constitute double jeopardy. We find no merit in any of the contentions. The record shows that appellant was tried only on assault with intent to rob. The other two informations were passed until a new jury would be impanelled the following month to prevent appellant being tried on the separate charges by the same jurors.

POINT III. Appellant here contends that he was entitled to have a preliminary hearing before the information could be filed by the prosecuting attorney. We find this without merit, see Moore v. State, 229 Ark. 335, 315 S. W. 2d 907 (1958). Further, the record here shows that when appellant raised the issue he was offered a preliminary hearing, which he declined for fear the State was attempting to cure the point he was raising.

POINT IV. We find no merit in appellant’s contention that the trial court erred in refusing to grant a change of venue. His petition for a change of venue was not supported by affidavits as required by law and appellant refused to obtain the affidavits when offered an opportunity to do so by any agent of his choosing. Further, notwithstanding the appellant’s failure to support his motion by the proper affidavits, the trial court held a hearing. A preponderance of the evidence presented at this hearing shows that there was no prejudice against appellant.

POINT V. Appellant here complains that the trial court should have made available funds to employ a medical expert of appellant’s own choosing to develop his defense of insanity. When appellant filed this motion, the court appointed two local physicians, pursuant to Ark. Stat. Ann. § 43-1304 (Repl. 1964), to determine whether appellant exhibited sufficient indicia of insanity to warrant his transfer to the state hospital for examination.

We find no merit to appellant’s contention that he was entitled at state expense to select a Houston, Texas, doctor to examine him on the issue of insanity. First, our statutes only provide for a mental examination at the state hospital. Next, the record shows that two competent local physicians could not find enough indicia of insanity to warrant their recommending that the trial court transfer appellant to the state hospital for examination.

Affirmed.

      This is the same Jack Allen Barber referred to in Barber v. Page, 90 U. S. 719, 20 L. Ed. 2d 255, 88 S. Ct. 1318 (1968) — there the United States Supreme Court reversed a robbery conviction from the State of Oklahoma.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    TRI-STATE INSURANCE CO. v. W. D. SMITH, d/b/a SMITH TRUCK LINES
    5-5136
    449 S. W. 2d 698
    Opinion delivered February 9, 1970

      Wheeler, Watkins, Hubbard, Patton & Peek, for appellant.

      Arnold ir Arnold, for appellee.
   Frank Holt, Justice.

The appellee was insured under a comprehensive liability insurance policy issued by the appellant. During this coverage the appellee was made a defendant in a lawsuit which was defended by appellee’s own attorney who sent his bill directly to the appellant. When the appellant offered to pay only two-thirds of the bill, this action was instituted by the appellee to enforce full payment. The trial court, sitting as a jury, rendered judgment for the full amount which was $2,940 for legal services and $257.70 for expenses. Also awarded was a 12% statutory penalty and attorney's fees. From that judgment comes this appeal.

For reversal the appellant first contends that the trial court erred in rendering judgment against the appellant for the reason that the evidence reflects that the notice given to the appellant as to the alleged incident, as well as the notice of the suit were both insufficient and that appellant’s agent was not an official of the appellant company upon whom such notice could be given. We find no merit in this contention.

Appellee’s employee allegedly assaulted and severely injured another person. Shortly after this occurrence appellee Smith orally notified appellant’s local agent, Harold Hodge, from whom he had procured the policy of insurance issued by appellant. Smith was advised by the local agent that the policy provided no coverage for such an incident. When a complaint was filed by the injured person against appellee Smith and his employee, appellee then hand delivered the complaint and summons to appellant’s local agent. Again he was advised that the policy provided no coverage for assault and battery. Thereupon the appellee employed Mr. Boyd Tackett to defend the lawsuit. The trial of the case resulted in a nonsuit by the plaintiff. A few months later the action was refiled against the appellee and his employee. Three days before the second trial of the case Mr. Tackett, upon reading the policy, called the appellant’s home office and made inquiry as to the extent of the coverage. It appears this was the first knowledge the home office had of the occurrence. According to Mr. Tackett, appellant’s claim manager acknowledged coverage and also stated: “Go ahead and take care of the matter, and when you get through send us a bill and we’ll take care of you.” Immediately following the telephone conversation, Mr. Tackett wrote a letter to the claim manager detailing the history and status of the pending litigation and briefly reviewing the applicable law. As indicated, three days later Mr. Tackett again defended the $174,000 lawsuit. A jury verdict absolved the appellee completely.

The policy provides that: “When an accident occurs written notice shall be given by or on behalf of the insured * * * or any of its authorized agents as soon as practicable” and “[i]f claim is made or suit brought against the insured” such notice given shall be immediately forwarded “to the company.” Appellant invokes the policy provision that full compliance with “all the terms of this policy” is “a condition precedent” to any liability on the part of appellant. The appellant states that the purpose of such notice provisions as conditions precedent in an insurance policy is to provide the insurer with an opportunity to fully investigate the facts surrounding the claim as well as to control any litigation and interpose available defenses. National Cas. Co. v. Bryl Johnson, 226 Ark. 737, 293 S. W. 2d 703 (1956); Benefit Assn. of Ry. Employees v. Otis France, 228 Ark. 765, 310 S. W. 2d 225 (1958).

Appellee contends, however, that appellant’s local agent, Mr. Hodge, who twice repudiated any liability, is more than a mere soliciting agent. He is, in fact, appellant’s authorized representative. With this we agree. According to the evidence, appellant’s agent (Hodge) did more than solicit and deliver the policy and accept the premium. The policy reflects that the local agent countersigned it as appellant’s “Authorized Representative.” As such he was notified by appellee when the incident occurred. Later the agent was handed the original complaint and summons when appellee was sued. In each instance appellant’s authorized representative advised the insured the policy provided no coverage. It is well settled that in an action on a liability insurance policy the insurer is precluded from defending its liability upon the ground of a violation by the insured of the policy provisions as to notice and forwarding of suit papers where the insurer has denied liability on some other ground. Dixie Auto Ins. Co. v. Goudy, 238 Ark. 432, 382 S. W. 2d 380 (1964). See, also, 18 ALR 2d, § 31, p. 491; Appleman, Insurance, Vol. 8, § 4747; and 44 Am. Jur. 2d, § 1514, p. 389. The reasoning is that a denial of all possible liability, as in the case at bar by appellant’s authorized representative, is equivalent to a declaration that the insurer will not pay the claim even though notice is given .in strict accordance with the policy and the law will not require the doing of a vain and useless act. Further, in 44 Am. Jur. 2d, supra, it is said:

“* * * It is not necessary, under such a policy, to notify the insurer of a second action brought for the same cause after the voluntary dismissal of the first action, where the insurer was notified of the first action, but denied liability, and refused to defend such action.”

There is yet another answer to appellant’s contention that insufficient notice was given. In the case at bar there was a clear waiver of any notice provisions when appellant’s claim manager acknowledged to appellee’s attorney three' days before the second trial that coverage for assault and battery was provided in the policy and then asked appellee’s attorney to proceed and take care of the matter and send his. bill to the appellant. The general rule is well stated in 18 ALR 2d 443, at p. 487:

“It appears to be well settléd by all the later cases on this point that the insurer may, by waiver or estoppel, lose its right to defeat a recovery under a liability policy because of the insured’s failure to comply with the policy provisions as to notice of accident or claim or as to the forwarding of suit papers. The rationale of this holding obviously is that provisions in respect of notice and forwarding suit papers are inserted for the benefit of the insurer only and that it therefore must be deemed to have the right to waive compliance therewith.” Citing American Fidelity & Cas. Co., Inc. v. North east Ark. Bus Lines, Inc., 201 Ark. 622, 146 S. W. 2d 165 (1941).

In the case at bar certainly it must be said that appellant has demonstrated no prejudice to its rights.

The appellant next asserts that the court erred in granting the statutory penalty and attorney’s fees because Árk. Stat. Ann. § 66-3258 (Repl. 1966) is inapplicable in this type of action. The reasonableness of the fee is not questioned. The appellant contends that no loss occurred to the appellee within the meaning of the statute and that the appellant issued no type of policy enumerated in this statute. We cannot agree. We recently had occasion to construe this statute as to its applicability where a penalty and attorney’s fees were sought in the enforcement of the compensable rights of a Mexican laborer pursuant to certain treaty provisions between the United States and Mexico. That situation is not enumerated in § 66-3238. However, we allowed the statutory penalty and attorney’s fees. Empire Life & Hospital Ins. Co. v. Armorel Planting Co., Inc., 247 Ark. 994, 449 S. W. 2d 200. We consider that case and the authority cited applicable to the case at bar. We hold that the definitions in our Insurance Code are intended to apply in the circumstances and that the trial court correctly required appellant to pay the statutory penalty and an attorney’s fee. An additional fee of $500 is allowed appellee’s attorney for his services on this appeal.

Affirmed.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    FIRST NATIONAL BANK OF SPRINGDALE v. Lloyd G. HOBBS et al
    5-5123
    450 S. W. 2d 298
    Opinion delivered February 16, 1970

      Crouch, Blair, Cypert ir Waters, for appellant.

      Bethell, Stocks, Callaway ér King, for appellees.
   Carleton Harris, Chief Justice.

Lloyd G. Hobbs is president of S. & H., Inc., and these parties are appellees. On September 12, 1966, Jack Starnes entered into a 10-year lease agreement with S. & H., whereby Starnes was to léase and operate the Holiday Inn Motel in Springdale. The lease provides for certain rentals, the minimum monthly rental being $6,000.00 per month for the first year, $7,000.00 per month for the second year, and $7,500.00 per month for the third and subsequent years of the lease term. Paragraph S provides that, in order to secure and insure payment of' the rentals, the lessee agrees not to withdraw as salary from the income acquired from operation of the property an amount in excess of $800.00 per month gross without the written consent of the lessor. It was further agreed that all receipts should be deposited in a bank account, and that all disbursements (other than petty cash items) should be made by check on said account. Further, that the lessor might require that all funds be disbursed from the account only upon a check countersigned by an officer or other representative of the lessor. Paragraph 5 provides that Starnes agrees:

“* * * to observe and fully keep and perform at his expense all obligations, covenants and agreements imposed upon or assumed by Lessor as a licensee under the terms of that certain License Agreement granted by Holiday Inns of America, Inc., under date of June 28, 1965; (b) to operate the premises demised herein as a 'Holiday Inn’ Restaurant, according to the terms of said License Agreement; and (c) to keep said License Agreement in full force and effect during the entire term hereof, and, if Lessee should fail to do so, Lessor may, but shall not be obligated to, take any action Lessor deems necessary or desirable to cure any default by Lessee in the performance or observation of any of the obligations, covenants and agreements due under said License Agreement, and Lessee hereby agrees to pay Lessor immediately and without further demand all such sums so paid and expended by Lessor in curing any such default * *

The record reflects that about September 15, 1966, Hobbs and Starnes went to the First National Bank of Springdale and talked with Mr. Robert Moore, president of the bank. Moore yras already acquainted with Hobbs, but had not previously met Starnes. An account was opened, termed, “Holiday Inn Operating Account.” According to the evidence, Hobbs told Moore that he was entering into a lease with Starnes, and that they would open the aforementioned account, this account requiring two signatures for any check written on it, the signatures to be that of Starnes and Hobbs. Starnes mentioned that someone would be needed to sign the checks during the absence of Hobbs, and it was agreed that David Curry, Hobbs’ son-in-law, would come to the bank, sign the signature card, and that he could then sign checks along with Starnes or even with Hobbs.

Within a few days, Curry signed the signature card, and Mrs. Starnes also went to the bank and talked with Nancy Tucker, a bank teller. Miss Tucker testified:

“Well, when she first came in, she had "the Holiday Inn deposits so I took her deposit and then she took change in return to the Holiday Inn and when she was through, she told me she wanted to sign a signature card! So we had been told that she would be in to sign the cards and I asked her which one she was to sign and she said she didn’t know. So I called upstairs and they sent them down and when I handed them to her, I asked her if those were the ones and she said, yes.”

Mrs. Starnes actually was supposed to sign two signature cards with her husband on two accounts (not involved in this litigation), the “Holiday Inn Advance Reservation,” and “Holiday Inn — Payroll Account,” and her name had been typed on these cards for signature; her name was not typed on the Holiday Inn operating account card. Subsequently, it appears that Mrs. Starnes signed numerous checks on the Holiday Inn operating account. Six checks signed by Mrs. Starnes are questioned in this litigation; on five of these the co-signer was her husband, Jack Starnes; on the other, her co-signer was Curry. On November 20, 1966, a check in the amount of $12,000.00, made payable to Ruth H. Bell, Mr. Starnes’ mother, was written on this account by Starnes and wife, and Mr. and Mrs. Starnes left town. Within a few days, the check was deposited in a Dallas bank, and subsequently honored by appellant. Appellees’ evidence reflects that Hobb* learned of this check, and the others that had been signed on November 30, when a vice-president of the bank called and advised that the account was overdrawn.

On February 1, 1967, this appellee instituted suit against the First National Bank of Springdale, appellant herein, seeking judgment in the amount of $31,-001.49, this amount representing checks which Hobbs alleged had been wrongfully paid by the bank. It was alleged that the bank paid out this amount on the unauthorized signature of Mrs. Starnes, and improperly charged the Holiday Inn operating account, contrary to and in breach of the agreement entered into between the parties. The bank answered, asserting that the account was vested in Jack Starnes as lessee of the Holiday Inn of Springdale; that Hobbs had no interest or claim to the funds deposited; further, that Hobbs had notice and was fully aware that Mrs. Starnes was signing checks on the account, and was thus estopped from asserting that her signature was unauthorized; it was further denied that he sustained any damage as a result of the bank honoring said checks. Subsequently, S. & H., Inc., intervened, asserting that Hobbs was one of its principal stockholders, and seeking the same relief sought by appellee Hobbs. Following the filing of other pleadings not pertinent to the issue before us, the case was tried before a jury. A verdict was returned for Hobbs and S. & H., Inc., in the amount of $12,495.53, and, from the judgment entered in accordance therewith, appellant brings this appeal. Six points are asserted for reversal, and we proceed to a discussion of these points.

It is first contended that the operating account was vested in Jack Starnes, and neither Hobbs nor S. & H. had any right, title, interest, or claim to funds deposited in that account. At the conclusion of the plaintiff’s case, appellant moved for a directed verdict on this basis, and also at the close of all the evidence, but both motions were denied. We agree that the trial court properly denied the motions. Appellant says that Starnes was only obligated to pay a specified rental for the leased premises, and the arrangement for two signatures was only a security arrangement between lessor and lessee, entered into for the purpose of securing to appellee, S. & H., its monthly rental. It is argued that Starnes was the owner of all receipts taken in by the Holiday Inn, and that the most appellees could be entitled to would be the amount of rent which had not been paid. It is also contended that neither Hobbs nor S. & H. were “customers” of the bank, within the meaning of Ark. Stat. Ann. § 85-4-104 (Add. 1961).

We disagree with these contentions, and it will be noted that the account was not carried in the name of either of these individuals or the corporation; rather, it was styled “Holiday Inn — Operating Account.” However, it appears clear from the testimony of Robert Moore, president of the bank, and principal witness for appellant, that the banker recognized Hobbs as the person mainly interested in setting up the account. Referring to the occasion when Hobbs and Starnes came to his office in the middle of September, Moore testified:

“He asked me to get some signature cards, that he wanted to open a new account and let the Charlie Haile account run its course, close itself.”

Moore stated that he assumed that the bank account belonged to both Hobbs and Starnes. The banker said that no one ever told him that Mrs. Starnes would have any authority to sign checks on the account, and also that no one ever told him 'that only Hobbs, Curry or Jack Starnes were to have signature authority. Subsequently, however, on cross-examination, the witness stated that Hobbs said that “he wanted his [Hobbs’] signature, his wife’s signature and Jack Starnes’ signature on the card,” and Moore admitted that, if three people were authorized to sign checks on an account, two signatures being required to properly clear a check, the instrument would have to be signed by two of the three authorized persons; this, he stated, would constitute proper banking practice. The banker said that as far as he knew, no one ever gave the bank authority to add the name of Mrs. Starnes, and though other employees of the bank testified, none ever stated that they had been authorized to permit Mrs. Starnes to sign the signature card. It was established that the signing was due to the bank’s error, and in fact, it is not argued otherwise. Section 85-4-104 defines a customer as:

“Any person having an account with a bank, or for whom a bank has agreed to collect items and in-eludes a bank carrying an account with another bank * * *

It seems clear from Moore’s own testimony that Hobbs was the “customer” who opened the account, and directed the manner in which it was to be handled, but, to say the least, he was certainly as much a customer as Starnes.

We cannot agree that Starnes owned the account, or that the money belonged to him — or Hobbs’ only interest was to secure his monthly rental payments. It will be noted within the provisions of the lease agreement, heretofore quoted, that Starnes agreed to fully perform all obligations and agreements imposed upon the lessor under the license agreement with Holiday Inns of America, and the lease further provided that, if Starnes should fail to observe and keep all agreements, the lessor might do so, and Starnes would pay the lessor all sums paid and expended by the latter in curing any such default. Hobbs testified that, as holder of the franchise, or licensee, he was responsible for the bills, and could not keep the franchise unless they were paid; that he paid bills that were incurred during Starnes’ operation of the Holiday Inn in an amount in excess of $23,000.00, such bills being paid from his own revenues or the revenues of S. & H., Inc.

As previously stated, the lease agreement reflects that, from revenues taken in by the motel, Starnes was only entitled to $800.00 per month salary, and could not draw any further money himself until $50,000.00 had accumulated in the account. This did not happen.

It is next asserted that appellees breached the duty imposed by Ark. Stat. Ann. § 85-4-406 (Add. 1961) in failing to notify the bank of the unauthorized signature, and therefore were not entitled to recover. This section provides, in effect, that when a bank sends its customer a statement of account accompanied by items paid in good faith in support of the debit entries, or holds the statement and items pursuant to instructions from the customer, or makes the statement and items available to the customer, the latter must exercise reasonable care and promptness in examining the statement and items to discover any unauthorized signature or authorization, and must promptly notify the bank thereof. Appellant argues that statements were available; that some of the items were not paid until after the availability of the statements, but the bank was not notified of the unauthorized signature. This is no defense for the bank, since the same section, Sub-section (3), provides “the preclusion under Sub-section (2) does not apply if the customer establishes lack of ordinary care on the part of the bank in paying the item(s).” We see no need to discuss whether the statements were actually available to appellees, although it is not entirely clear that this was true, but we think unquestionably that the evidence establishes a lack of care on the part of appellant in paying the checks under discussion; at least, the proof certainly presented the question of whether bank employees were negligent in permitting Mrs. Starnes to sign the Holiday Inn operating account signature card, and thereafter honoring checks signed by her.

It is pointed out that five checks signed by Mrs. Starnes were also signed by either Curry or Hobbs, the first as early as October 15, that these checks were signed on the second line, indicating that Mrs. Starnes had already signed before either of these men. Yet, says appellant, the bank received no notice.

Hobbs testified that, at the time he signed the checks, Mrs. Starnes’ signature had not already been placed upon them. Mr. Curry said that he signed every check placed in front of him by Mr. Starnes, but had no recollection of seeing the name of Mrs. Starnes already on the instrument. Of course, the fact that these men signed on the second line does not establish that the signature of Mrs. Starnes was already on the checks before the others signed; after all, the checks for expenditures were made out by the operator of the inn, and, as the maker of the bills, it would normally be expected that he would sign on the top signature line. At any rate, the significance (or lack of it) of appellee’s and Curry’s signing on the second line, and whether this act indicated that Mrs. Starnes had already signed on the top line, or whether there was negligence, was a question for the jury, and evidently one that they considered, since they only allowed recovery on the checks signed by Mr. and Mrs. Starnes.

It is also asserted that one check written to S. & H., Inc., was signed by Mrs. Starnes and Curry, and that this check was subsequently endorsed by Hobbs; thus, he had notice of the unauthorized signature, and should have notified the bank. Mr. Hobbs testified that his secretary frequently prepared deposit slips, and brought checks into his office which were to be deposited; that he endorsed them without ever paying any attention to the front side, because they were being taken to the bank for deposit. He emphatically denied ever seeing the signature of Mrs. Starnes. At any rate, as stated under Point Two, the question of negligence under the circumstances enumerated, was an issue for jury determination.

Appellant asserts that the court erred in giving its Instruction No. 11, which told the jury that the burden of proof was upon appellees to establish by a preponderance of the evidence the terms and conditions upon which the deposits were made with the bank, i. e., prove the number of signatures required for withdrawal and the names of the persons authorized to sign the checks. The instruction then set out that when a bank accepts a deposit on agreed terms and conditions, it is held to strict accountability to pay out funds in strict compliance with those terms and conditions, and the burden to show that that was done is upon the bank. Appellant objected, stating that several elements such as ratification, negligence, etc., were not included in the instruction, and it was further contended that the instruction did not require a showing that appellee had an ownership interest in the account. We have already said that there is no merit in the ownership contention, and Instruction No. 12 presented the issue of whether appellees were negligent. The question of ratification was covered in Instruction No. 13. We find no merit to this contention.

As to Point Five, the record reflects that Hobbs was asked to state Moore’s response when appellee demanded reimbursement for the checks erroneously paid. The witness replied:

“In the beginning, he was very concerned about getting the money reimbursed from his insurance company.”

Appellant moved for a mistrial,, and the court interrogated the jury as follows:

“Can the jury disregard anything in regard to insurance? * * * Just a minute now. Now, I am telling you to disregard this reference to insurance. It has no bearing whatsoever. Can you do that? Is there anybody who cannot completely disregard it and remove if from consideration in every form in this matter? I am not going to poll you individually but I am going to deny your request for a mistrial.”

In Back v. Duncan, 246 Ark. 494, 438 S. W. 2d 690, we pointed out that the granting of a mistrial is a step so drastic as to be the exception, rather than the rule, as a means of correcting an error. There, we said that the trial court is only reversed if there is an abuse of discretion involving manifest prejudice to the complaining party. We do not think that such drastic action was called for in this case. It does not appear that the question was asked for the purpose of showing that losses were covered by insurance; certainly, any conversation between Hobbs and Moore was pertinent to the litigation, and it does not appear that the reference to insurance occurred in bad faith. We think the admonition by the court was sufficient to correct the error. Lin Manufacturing Company of Arkansas, Inc. et al v. Courson, 246 Ark. 5, 436 S. W. 2d 472.

Finally, it is contended that the court erred in permitting Hobbs to testify relative to the value of certain real estate, which Starnes’ mother, at his behest, had deeded to S. 8c H., Inc. Appellant, under the theory that appellees were not damaged, asserts that the check from Starnes and wife to Mrs. Bell for $12,000.00 was in payment of real estate that Hobbs had purchased from her. Hobbs had testified that Starnes had offered the lot, located three and one-half miles from Long-view, Texas, as security “simply because he did not have any money and he was trying to do anything he could to get me to lease him the Holiday Inn, therefore, he wanted to bring up anything he could to help this situation. This lot was actually taken just because he offered it and we didn’t turn it down. I have never seen the lot, I don’t feel it has any value of consequence but it was taken as security.” This appellee testified that the lot was assessed at $250.00, and that he had paid three years’ taxes, which had amounted to $1-14 per year. A state and county tax receipt for 1968, and a redemption receipt were offered in evidence. These exhibits, along with the testimony, were objected to by appellant, first as irrelevant, and second, as hearsay evidence. We agree that the exhibits were not in proper form for Introduction, and we also agree that the evidence was irrelevant. It was evidently offered because appellant was claiming that the lot was worth $12,000.00, and that the check given to Mrs. Bell was to repay her for the property. This transaction was entirely alien to the question being tried, viz., was the bank liable for honoring. checks on a customer’s account, such checks being executed by a person without authority to draw on the account? No instruction was given to the jury relating to this testimony, for it was not an issue between appellant and appellees, and we agree with counsel for appellees that any error committed was harmless.

The jury heard the evidence concerning the manner in which Mrs. Starnes became authorized to sign checks on the operating account. It also heard the evidence, pro and con, relative to whether Hobbs knew, or should have known, that Mrs. Starnes was signing checks. The contentions of both sides were fully presented. The jury found for appellees in the amount previously stated, and we find no prejudicial error.

Affirmed.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I respectfully dissent because I feel that there was a failure of proof of an element essential to establishment of a prima facie case for recovery by appellees.

Appellant argued there was error in that evidence relative to the ownership of the account was not sufficient to sustain the verdict of the jury, in the giving of an instruction that the bank was held to strict accountability to plaintiff unless the funds deposited were paid out in strict compliance with the terms and conditions agreed upon as to signatures required for withdrawal, and in admitting evidence with regard to the tax assessment on certain real estate.

In order to put the matter in proper perspective, we must examine the evidence showing the interest of S & H, Inc., the real party in interest, in the funds deposited. Regardless of any conversations had among the interested parties, the interest of this appellee in these funds was established by the lease between S & H, Inc., and Jack Starnes. The extent to which these terms were made known to appellant is wholly immaterial, because if appellees had no interest in the funds, they suffered no loss and had no cause of action. Even Hobbs clearly stated that the bank account, along with a lot west of Longview, Texas, conveyed to S & H by Starnes’ mother, and still owned by it, constituted security for performance of the lease. He also said that any money left in the account after the bills were paid would be the property of Starnes.

Paragraph 3 of the lease agreement provided that the bank account should secure and insure the payment of rentals and performance of other covenants in the lease. Clearly S & H had only a security interest in the account. The only showing of loss or damage to S & H, Inc., under the covenants of the lease was Hobbs’ testimony that he had to pay bills incurred by Starnes in the Holiday Inn operation in the amount of $23,000. Appellees offered no evidence as to the value of the lot, and the only evidence to show its value was evidence relating to a tax assessment.

Under the instructions given by the court, and particularly the instruction objected to by appellant, the jury was told that the bank was held to strict accountability for failure to require the signatures agreed upon, which, in effect, permitted S & H to recover the full amount of the account without regard to the extent of its loss. This could result in an unjust enrichment at the expense of the bank of a secured party who suffered no loss. S & H was not entitled to be unjustly enriched. There must be a loss to enable recovery by a beneficiary of funds deposited in a bank and known by it to be trust funds even though the bank permitted diversion of these funds, because the beneficiary is not entitled to unjust enrichment. Bray Bros. v. Marine Trust Company, 35 N. Y. S. 2d 356 (1937).

Under the circumstances existing here, it seems to be generally held that the burden is upon the claimant to prove his damage or loss as well as his interest in the funds deposited in the bank account. In Amarillo National Bank v. Harrell, 159 S. W. 858 (Tex. Civ. App. 1913), it was held that a partner suing a bank to recover for wrongful conversion by transfer of a partnership bank account to the credit of the other partner could not recover the entire account but that he must allege and show his individual damage and interest.

In Moore v. First National Bank of Kansas City, 154 Mo. App. 516, 135 S. W. 1005 (1911), the bank appropriated funds on deposit to the credit of a depositor in his capacity as receiver of a corporation by honoring checks drawn on the account by the receiver for the payment of his individual debts to the bank. The court held that the burden was on the successor receiver to show that by reason of the misappropriation the trust had been depleted to the extent that there was an insufficient amount in the receiver’s hands to pay existing liabilities or that the original receiver was delinquent to the estate in some amount. In L. W. Cox & Co., Inc. v. Chemical Bank and Trust Co., 175 Misc. 1063, 26 N. Y. S. 2d 38 (1941), it was held that the payee of checks converted by a bank’s honoring an unauthorized endorsement was not entitled to recover the full amount of the checks, but only to the amount by which the proceeds of the checks exceeded benefits received by the payee from the transaction.

In Butler Produce and Canning Company v. Edgerton State Bank Company, 159 Ohio 267, 112 N. E. 2d 23 (1953), it was held that an employer was not entitled to recover from a bank for funds obtained by his employee by forgery of the employer’s name when' the employee had made restitution, because the employer was only entitled to be reimbursed once.

It has also been held that no recovery could be had from a bank for conversion of collateral security in the absence of proof that the claimant thereto suffered loss. Porter v. Levering, 330 Pa. 392, 199 A. 482 (1938).

The only evidence offered to indicate that the lot was not of sufficient value to reduce the amount of the loss suffered by S & H was the tax receipts purporting to show a tax assessment on the property. The tax assessment was not admissible for the purpose of showing the value of the land. St. Louis I. M. & S. Ry. Co. v. Magness, 93 Ark. 46, 123 S. W. 786; Springfield & Memphis Railway v. Rhea, 44 Ark. 258; Texas & St. Louis Ry. v. Eddy, 42 Ark. 527. In this state of the record the admission of this evidence over the objection of the appellant was prejudicial error.

I would reverse the judgment and remand the case for a new trial.

      In the previous Holiday Inn account, Mrs. Hobbs had also been authorized, but there was no authorization for her signature on the new account.

      Other checks bearing her signature are not questioned, since it is conceded that the funds were drawn to pay legitimate bills of Holiday Inn.

      &3a Emphasis supplied.

      The former operator of Holiday Inn.

      Apparently appellees recognized that recovery could not be obtained on checks reflecting Hobbs or Curry as co-signers, for they offered an instruction at the conclusion of the evidence directing the jury to find for appellees in the amount of $13,295.33. This amount covered the checks paid on the signatures of Mr. and Mrs. Starnes, plus one check signed by Mrs. Starnes and Curry. This last check was in the amount of $800.00, being a payment to an attorney which appellees contended was a personal obligation of Starnes, and should not be charged against the account. The jury evidently did not agree with this contention, since Curry was one of the signers. The verdict was $800.00 less (amount of the check to the attorney) than the $13,295.33 finally contended for by appellees.

      The record indicates that there is, or was, a dispute between the bank and the insurance company relative to coverage.

      Even if Ark. Stat. Ann. § 85-4-103(5) (Add. 1961) applies as suggested by appellant, the Committee comment on this section clearly shows that this rule still applies.


author: George Rose Smith, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Maybrine G. SPURLOCK et ux
    5-5159
    449 S. W. 2d 958
    Opinion delivered February 16, 1970

      Thomas Keys & Philip Gowen, for appellant.

      Penix ir Penix and Douglas Bradley, for appellees.
   George Rose Smith, Justice.

In this condemnation proceeding the highway department is taking 16.56 acres of a 99-acre tract as a right-of-way for the Highway 63 Bypass at Jonesboro. For reversal it is argued that there is no substantial evidence to support the jury’s verdict for $19,000.

Spurlock, the landowner, was unquestionably a qualified witness, having bought and sold land in the vicinity and having passed upon real estate loan applications as a member of the board of a Federal Land Bank. Spurlock valued his tract at $200,000 before the taking and $167,000 afterwards, or a difference of $33,000. On cross-examination no serious effort was made to discredit Spurlock’s testimony, counsel merely eliciting admissions that Spurlock had not considered any sales in arriving at his valuation and that he did not think that the new highway had enhanced the value of his property.

We cannot say that Spurlock’s own testimony was not substantial evidence. In its argument the highway department does not stress Spurlock’s failure to consider comparable sales, for of course there are other methods of arriving at a reasonable valuation of property. See Arkansas State Highway Comm’n v. Roberts, 246 Ark. 1216, 441 S. W. 2nd 808 (1969). ).

The department argues instead that the testimony of its own expert witness, R. E. Shockley, shows conclusively that there will be an enhancement in value, even though both Spurlock and his expert witness stated that there will not be. We think that issue was for th,e jury. After the construction the new divided four-lane bypass will intersect Young Road at grade level. The remainder of the Spurlock tract will lie in the northeast corner of that intersection, abutting both highways. Shockley envisaged an enhancement of $6,395, principally because the three acres right at the intersection will be a valuable site for a commercial enterprise such as a restaurant, service station, or food store. Shockley mentioned instances of enhanced values at other newly created intersections.

The jury, however, may not have accepted Shockley’s view of the situation, because there will be no ready access to the supposedly valuable commercial site at the intersection. In that vicinity both the bypass and Young Road will be controlled-access thoroughfares, protected by fences. The nearest turnoff from Young Road will be 400 feet north of the intersection. On the bypass, which is the main thoroughfare, the department’s plans merely show a 50-foot opening for a turnoff for westbound traffic only at a point 1,295 feet east of the intersection. Any service roads from the turnoffs to the site at the intersection will have to be constructed by the landowner at his own expense. In view of those facts, which were established by Shockley’s own testimony, the jury were justified in concluding that the enhanced values foreseen by Shockley will not actually be realized by the landowner. Hence we cannot say that the amount of the verdict is not supported by substantial proof. Ark. State Highway Comm’n v. Tilley, 247 Ark. 336, 445 S. W. 2d 510.

Affirmed.


author: Lyle Brown, Justice.

text:
    Cornell Rudkin WALKER v. George Harris WALKER
    5-5168
    450 S. W. 2d 1
    Opinion delivered February 16, 1970

      Vincent E. Skillman, Jr., for appellant.

      Edward Rubens, for appellee.
   Lyle Brown, Justice.

Plaintiff below and appellant here, Mrs. Cornell R. Walker, instituted an action for separate maintenance against George Harris Walker. The husband answered with a prayer for absolute divorce and it was granted. The wife here alleges insufficiency of proof, failure to award alimony, and, alternatively, an incorrect division of property.

The parties were intermarried in 1965 and lived together for four years, excepting several periods of separation caused by matrimonial difficulties. The final separation, which climaxed several months of quarreling and fighting, occurred in March 1969. Each party gave evidence which would place the blame on the other. A recounting of the testimony of these spouses would serve no useful purpose and is really not necessary to a determination of the issues on appeal. The allegation here argued with respect to sufficiency of proof is directed at the corroboration, which appellant contends is wholly insufficient. We will therefore evaluate the corroboration. With respect to the husband’s testimony it is sufficient to say that the incidents of unwarranted indignities related by him, if true and if corroborated, were abundantly sufficient to warrant granting him a divorce.

The quantum of required corroboration in contested divorce cases has long been settled. It is plain to us that in this heatedly contested case there was no collusion. In that situation the corroboration may be comparatively slight and yet be sufficient. Goodlett v. Goodlett, 206 Ark. 1048, 178 S. W. 2d 666 (1944). The same citation is authority for the rule that the litigant does not have to be corroborated on each asserted act of indignity. Among the many acts of indignities related by the husband, he asserted that his wife wrongfully accused him of improper conduct with another woman; in that connection he was corroborated by Jo Ann Weaver. Appellee testified that appellant’s telephone calls to his office were so frequent as to disrupt his business; Janice Hughes testified to the same general effect and specifically recounted tabulating the calls on two different days and they totalled fifteen and seventeen calls. Appellee’s daughter by his first wife lived with this couple and she supported her father’s testimony that the child had been abused by her stepmother. Appellee’s testimony relative to both him and his daughter being called vile names by appellant was supported by other witnesses.

The trial court denied alimony and appellant takes exception to that ruling. We agree with the assertion that the trial court has the inherent power, acting in sound discretion, to award alimony to a wife even if her faults entitle the husband to a divorce. Conner v. Conner, 192 Ark. 289, 91 S. W. 2d 260 (1936). We must examine the particular facts and circumstances in the case to determine whether the chancellor abused his discretion. The principal circumstance favoring alimony is the fact that the husband was not without some fault; on the other hand the chancellor found that appellant was guilty of such conduct as to provoke ill behavior by appellee. Appellant testified as to acts of severe cruelty, most of which were categorically denied. It is clear to us that the chancellor had to conclude that some of her charges were made out of whole cloth. This second marriage by both parties was of comparatively short duration; they were separated many times and on a single occasion as long as three months; no children were born to the union; both conceded that there was no possibility of reconciliation; she is an experienced bookkeeper and was earning $460 a month at the time of this marriage; she is far from being an elderly person and there is no substantial evidence that she will not be able to resume full-time employment; and appellee must, on a rather modest income, maintain a home for himself and his teenage daughter. We are unable to say that the chancellor abused his discretion in refusing alimony.

Finally appellant objects to the division of the property made by the chancellor. The home, held by the entirety, was ordered sold, and any net divided between the parties. The household furnishings were ordered handled in the same manner as the home; that was because the evidence showed appellant paid one-half of the cost of the furnishings. The wife also furnished eighty per cent of the trade-in value on a new car, plus a five hundred dollar cash payment, and the husband was ordered to refund her those amounts. Appellant had for some time owned a share of stock in appellee’s business and she was permitted to retain title thereto. Appellee was also directed to pay appellant’s attorney for his services. The statute, Ark. Stat. Ann. § 34-1214 (Repl. 1962), provides that when the husband is granted a divorce the parties shall be restored to all property then possessed by them which either obtained from the other during the marriage “and in consideration or by reason thereof.” If it is the theory of appellant that the trial court did not adhere to § 34-1214, we are not afforded the citation of specific instances of nonconformance. We perceive appellant’s contention to be that the court should have, under its inherent power, granted her, as a part of alimony, an interest in her husband’s real property. Cook v. Cook, 233 Ark. 961, 349 S. W. 2nd 809 (1961). As in the case of a money award of álimony to the defaulting wife, such an allotment would be in the sound discretion of the chancellor. We repeat that we are unable to say the chancellor abused his discretion in refusing to award alimony in any form.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Pearl Earl ASHER and Harvey BRADFORD v. CITY OF LITTLE ROCK
    5-5459
    449 S. W. 2d 933
    Opinion delivered February 16, 1970

      Martin, Dodds, Kidd, Hendricks if Ryan, for appellants.

      Kemp if Whitmore, for appellee.
   John A. Fogleman, Justice.

Appellants Asher and Bradford bring this appeal from their conviction of violation of Section 21-15 of the Little Rock City Code, on trial de novo in the circuit court on their appeal from the Municipal Court of Little Rock. This section, introduced in evidence, declares that the operation of a business upon which a privilege tax has been levied without a license showing payment of the tax is a misdemeanor punishable by a fine not more than double the amount of tax due. They assert two points for reversal, viz: (1) their convictions were not sustained by sufficient evidence and (2) evidence obtained as the result of observations made by police officers inside the house in which the business activities were allegedly carried on was inadmissible as a result of an illegal search or seizure.

At least one of the bases for the city’s position on this appeal is its contention that the activities being conducted in this house constituted a business upon which a privilege tax had been levied. We are confronted with an insurmountable barrier in approaching both points because no ordinance of the city requiring the payment of a privilege tax was introduced in evidence. The courts cannot take judicial notice of city ordinances. Strickland v. City of Little Rock, 68 Ark. 483, 60 S. W. 26; Gardner v. State, 80 Ark. 264, 97 S. W. 48; Drifoos v. City of Jonesboro, 107 Ark. 99, 154 S. W. 196; Walthour v. Alexander, 243 Ark. 621, 421 S. W. 2d 613. The Strickland case is particularly significant precedent. There the appellant had been convicted of violation of an ordinance which made interference with a member of the police department in performance of his duty a misdemeanor. Evidence showed that appellant had prevented a sanitary policeman from entering his shop. The conviction was reversed for insufficiency of the evidence to show that appellant interfered with the policeman in the discharge of his duties, because of the failure of the city to prove the powers and duties of the sanitary policeman. We are unable to say from the record here that appellants were liable for a privilege tax, regardless of whether they were conducting a business on the premises, whatever their business may have been. For the same reason, we cannot say whether a misdemeanor was being committed by appellants in the presence of the officers or that the search and seizure was incident to a lawful arrest for a misdemeanor committed in the presence of the arresting officers. If, indeed, the activities conducted by appellants constituted a business for which the payment of a privilege tax was required, appellants were committing a misdemeanor in the presence of the officers on the basis of the testimony of the police officer hereinafter set out, as will presently be shown.

The city seeks to justify the warrantless search of the premises not only upon the assertion that it was made incident to a valid arrest for the alleged misdemeanor, but also as the search of a public place. Since the case must be remanded for a new trial, it is necessary that we evaluate these contentions. At the outset, we point out that where the validity of a warrantless search is questioned on the basis of compliance with constitutional standards the burden is on the party seeking exemption from the requirement of a search warrant. Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); United States v. Jeffers, 342 U. S. 48, 72 S. Ct. 93, 96 L. Ed. 59 (1951); McDonald v. United States, 335 U. S. 451, 69 S. Ct. 191, 93 L. Ed. 153 (1948).

The offense was alleged to have been committed on March 22, 1969. As a result of complaints to the Little Rock Police Department concerning noisy disturbances at 1801 Gaines Street, the house there was placed under the surveillance of officer W. A. Gibson and three others on the date mentioned. Gibson’s version of ensuing developments follows:

He observed from a police car parked one block north of the above address. He heard loud music and noises and heard people talking loudly. He saw 10 or 15 people come to the front entrance of the house, who were met by someone and admitted after a pause for conversation. He saw these people clearly and could see that they were carrying packages and whiskey. Activities inside the house could not be observed because blankets covered the windows. During the surveillance, the officers had indications that their radio communications were being monitored. After making these observations, the officers went upon, the premises they had been observing, where they were met by Earl Asher. Even though Asher asked if the officers had a warrant and made it clear to the officers that he preferred they not enter the house without a warrant, Gibson stated that he opened the door and went in without the use of force, having been admitted by Bradford. Bradford said that the house belonged to appellants and admitted that they were accepting money at the door for admission to the place, even though he contended that appellants were having a private party for which he thought no license was required. Inside the premises Gibson observed what he called a disturbance. He described the music and conversation as loud, characterizing it as what one normally would hear around “beer joints” or “clubs.” He found a commercial “jukebox” and 28 people. There were tables upon which drinks and beer were placed. He observed a lot of whiskey that had been “opened.”

Bradford admitted that he and Asher owned the house. His version follows:

He came to the door and found that Asher was refusing the police admittance. They had Asher backed up against the wall searching him for a key. He opened the door to the police in order to avoid injury to Asher, after having heard them tell Asher that they were going to use him for a battering ram to open the door. All of those present were his personal friends and acquaintances who had been invited by him or Asher and who were admitted, without any charge, upon their knocking on the front door or ringing the doorbell. He did not make any statement to the officers about charging admission. He did tell them that 12 or 15 of the people present had contributed to a “pot” for the purpose of having parties, which were attended by 25 to 30 invited guests, some of whom come from out-of-town on invitation for an entire weekend.

Asher testified that he was outside the house to check on information conveyed by a friend that a strange man was sitting in a car 'in front of the friend’s sister’s house. According to him, the officers claimed they had been invited to the party, but upon his denial of admission, one of them took his car keys from his pocket and tried to unlock the door. It was then, said Asher that the officers said they were going to use him for a battering ram, after which Bradford opened the door.

If the officers’ version of what happened is accepted, it would constitute substantial evidence that the entry into the premises and the search thereafter were not unreasonable. Assuming that upon retrial, a valid ordinance levying a privilege tax upon the activities which were being conducted by appellants on the date in question is introduced, it seems that there is substantial evidence that a misdemeanor was being committed in the presence of the officers. It is, of course, incumbent upon the city to show that a violation of a city ordinance was being committed in the presence of the officers. Arkansas Statutes Annotated § 43-403 (Repl. 1964) authorizes an arrest by a peace officer where a public offense is committed in his presence. We know of no definition of the terms of this statute in our cases. It is well established in other jurisdictions, however, that a crime is committed in the presence of an officer, whenever he is apprised by any or all of his senses that it is being committed. Giannini v. Garland, 296 Ky. 361, 177 S. W. 2d 133 (1944); State v. District Court, 72 Mont. 77, 231 P. 1107 (1924); State v. Blackwelder, 182 N. C. 899, 109 S. E. 644 (1921); McCanless v. Evans, 177 Tenn. 86, 146 S. W. 2d 354 (1941). It is only necessary that the one making the arrest have reasonable grounds for believing, in good faith, that the person arrested is guilty of the offense. State v. Blackwelder, supra; Giannini v. Garland, supra. Where the circumstances are such that an officer would be justified in making a complaint upon which a warrant would be issued, the officer may arrest without a warrant if the offense which the circumstances tend to establish was committed in his presence. State v. District Court, supra. If the officer, by his presence, becomes informed through any of his senses of material elements of the particular crime which would have a tendency to produce in the minds of a reasonably prudent person that it is morally certain that the principal fact occurred, the offense may be considered as having been committed in his presence, although he did not discover all of the elements necessary to the completion of the offense without admission of the other necessary elements by the arrested person to the officer. Giannini v. Garland, supra. See also Annot., 76 A. L. R. 2d 1432, 1441 (1961).

If, as a matter of fact, Gibson and the officers accompanying him heard loud music, noises and loud talking emanating from the building, observed persons entering carrying whiskey and had reasonable grounds to believe that a charge for admission to the premises were being collected, there would be substantial evidence from which it might be found that a public offense was being committed in his presence, if, as a matter of fact, the activities being conducted were subject to a privilege tax which had not been paid.

The city also seeks to justify the search upon the basis that appellants were actually operating a public place which the officers had a right to enter without a search warrant. In view of the uncontradicted testimony by appellants that no one was present who had not been specifically invited to the premises and the absence of any evidence to the contrary, it does not appear that the search of the premises made by the officers can be justilied as having been conducted after their entry into a public place. The rule governing such a search and seizure is treated in Gerard v. State, 237 Ark. 287, 372 S. W. 2d 635. Before a finding that this rule is applicable could be justified, it would be necessary that there be some evidence from which it could be said that the general public, or a substantial part thereof, were admitted or expressly or impliedly invited. Charging admission to a closely restricted group would not necessarily convert the premises into a public place, even though it may be a place of business.

The remaining basis upon which the city seeks to justify the search is that it was made with the consent of one of the owners or occupants of the premises. It is well to remember that the burden of proving the existence and voluntariness of consent to a warrantless search is upon the party seeking to establish its legal sufficiency. Maxwell v. Stephens, 348 F. 2d 325 (8th Cir. 1965), cert. den. 382 U. S. 944, 86 S. Ct. 387, 15 L. Ed. 2d 353 (1965); United States v. Page, 302 F. 2d 81 (9th Cir. 1962). There can be no doubt that an occupant who has a proprietary interest in a building can consent to entry by police officers and a search of the premises and seizure of whatever may be found there as evidentiary material. Maxwell v. Stephens, supra. One having joint possession or equal authority with another over the premises may authorize a warrantless search thereof. Drummond v. United States, 350 F. 2d 983 (8th Cir. (1965), cert. den. 384 U. S. 944, 86 S. Ct. 1968, 16 L. Ed. 2d 1031 (1966). We have held that the search of an apartment occupied by a husband and wife without a warrant, after the officers were invited in by the wife, was not a violation of constitutional protection against unreasonable search as to either the husband or the wife. Dokes v. State, 241 Ark. 720, 409 S. W. 2d 827, cert. den. 389 U. S. 901, 88 S. Ct. 212, 19 L. Ed. 2d 218 (1967).

Reversed and remanded for further proceedings consistent with this opinion.

      Hearsay would not be a proper basis for an arrest for commission of a misdemeanor in the presence of an officer, even though it might be sufficient basis for a reasonable belief that one had committed a felony.


text:
    McGEHEE HATCHERY v. Rebecca Colvin REED et al
    5-5049
    450 S. W. 2d 5
    Opinion delivered February 16, 1970

      Drew ér Holloway, for appellant.

      Bridges, Young, Matthews if Davis, for appellees.
   Conley Byrd, Justice.

This action was commenced in the trial court by appellee Rebecca Colvin Reed against appellee Mrs. Robert Wardrip for injuries sustained when the automobile in which Mrs. Reed was riding was struck from the rear by an automobile driven by Mrs. Wardrip. Appellant McGehee Hatchery was brought into the action by Mrs. Wardrip upon an allegation that McGehee Hatchery caused a tire and wheel to come loose from a truck driven by McGehee Hatchery’s employee in such manner as to cause Mrs. Wardrip momentarily to lose control of her car, to fear for the safety of herself and others in her vehicle, and to run into the rear of the vehicle in which plaintiff was riding. The jury returned a verdict for Mrs. Reed and against both Mrs. Wardrip and Mc-Gehee Hatchery. By its verdict the jury found that McGehee Hatchery was jointly liable with Mrs. Ward-rip and responsible for 50% of the negligence. For reversal McGehee Hatchery contends that the trial court erred in overruling its motion for a directed verdict.

The record shows that Mrs. Reed put on her proof first. Following the testimony of Mrs. Reed, the driver of the vehicle in which she was riding and the investigating officer, McGehee Hatchery moved for a directed verdict. Thereafter Mrs. Wardrip put on her proof and McGehee Hatchery put on its proof and the matter was submitted to the jury without a further request for a directed verdict. The record as abstracted does not show a motion for judgment notwithstanding the verdict.

In Arthur Murray, Inc. v. Parris, 243 Ark. 441, 420 S. W. 2d 518 (1967), and Granite Mountain Rest Home v. Schwarz, Adm’r., 236 Ark. 46, 364 S. W. 2d 306 (1963), we held that where one introduces proof after the trial court has denied a motion for a directed verdict, he waives any error committed by the court in failing to grant a directed verdict. Under these authorities McGehee Hatchery is not in the position to urge that the court erred in failing to direct a verdict in its favor.

The judgment is affirmed.


text:
    J. L. WRIGHT v. Lynda Davis WRIGHT and Glenn Madison WRIGHT
    5-5163
    449 S. W. 2d 952
    Opinion delivered February 16, 1970

      N. J. Henley, for appellant.

      Robert Compton, for appellees.
   Frank Holt, Justice.

The issue in this case is whether one who murders his parent can inherit from the estate of his victim, and, further, the legal effect upon the right of the slayer’s heirs to inherit. Appellant’s brother, Leslie A. Wright, was convicted in 1954 of first degree murder in the killing of his mother and sentenced to life imprisonment. Upon being paroled in 1964 he married appellee, Lynda Davis Wright, and he was killed in an automobile accident before the birth of his son, Glenn Madison Wright, the other appellee. The appellant subsequently instituted this action to quiet title to all of the lands owned by his father and mother when they were murdered in 1953 by appellant’s seventeen-year-old brother, Leslie. The two brothers were the only surviving descendants.

The chancellor denied appellant’s petition that he be declared the sole owner of the lands in question and concluded that an undivided one-half interest in the lands should be confirmed in the appellee, Glenn Madison Wright, a minor, subject to the dower interest of his mother, appellee Lynda Davis Wright. The court further found by a preponderance of the evidence that Leslie Wright murdered both of his parents.

For reversal the appellant contends that the court erred in failing to hold that on the basis of sound public policy the appellees could not inherit or participate in the Wright estate. To the contrary, the appellees contend that the question of intestate succession is governed exclusively by our statutes of descent and distribution. Ark. Stat. Ann. § 61-101 et seq. (1947). Appellees assert that those statutes impose no restrictions upon the right of a killer to inherit from the ancestral estate of his victim. They cite § 61-230 as the only limitation. Also relied upon is Barnes v. Cooper, Adm’x., 204 Ark. 118, 161 S. W. 2d 8 (1942). This statute specifically bars dower or curtesy rights where one spouse murders another spouse. Therefore, say appellees, in the case at bar the son is not barred from sharing in his parents’ estate since there is an absence of an express statutory limitation. We do not so construe our statutes or the law.

In Smith v. Dean 226 Ark. 438, 290 S. W. 2nd 439 (1956), a widow who had been convicted of murdering her husband sought title to her husband’s entire estate. There we held that § 1-230 was intended by the legislature as a restriction or limitation upon the dower or curtesy rights between the spouses where one murders the other. We allowed her to recover the widow’s statutory allowance since that item was not expressly prohibited by the statute. However, there we find this meaningful language:

“Apart from statute, however, it is a familiar principle of law that one who wrongfully kills another is not permitted to share in the other’s estate, to collect insurance on his life, or otherwise to profit by the crime. Horn v. Cole 203 Ark. 361 156 S. W. 2d 787; Rest., Restitution, § 187. That principle would control this case were it not for the fact that the record contains no legal proof that the appellant killed Harold Dean. We cannot take judicial notice of the facts disclosed by the record in the earlier criminal proceeding.”

Clearly, this expressed what our view would be whenever there is a proper judicial determination in a civil proceeding that one is the killer of someone from whom he seeks to inherit. In the case at bar the chancellor made an independent and unquestioned finding of fact that the son murdered both of his parents. This being true, it is our view that the “familiar principle” in Smith v. Dean, supra, is controlling in the instant case and precludes the slayer from sharing in the estate of either victim.

The reasoning for such a view is based upon the common law maxim that no sane person should be permitted to profit or acquire property by his own wrong or criminal act. 23 Am. Jur. 2d, Descent 8c Distribution, § 95. This rule of public policy, based upon centuries of usage, wisely requires this to be the law. Our general statutes on descent and distribution include, significantly, § 61-113 which reads:

“In all cases not provided for in this act, the inheritance shall descend according to the course of the common law, * #

See, also, Ark. Stat. Ann. § 1-101 (Repl. 1956). We have long recognized the rule that statutes in derogation of the rules of the common law are strictly construed by us. Gill et al v. State, ex rel Mobley, 242 Ark. 797, 416 S. W. 2d 269 (1967). We do not think it was the legislature’s intention to abrogate such a common law maxim in the absence of a specific statute to that effect.

We hold that upon the chancellor’s finding in this proceeding that Leslie A. Wright murdered his parents, it follows that at the time he committed these tragic acts he precluded himself from sharing in either of his victim’s estate. Since the parents’ only other heir in being at the time of this double murder was the appellant, Leslie’s brother, we also hold that title to all the lands in question is now vested in appellant.

As previously recited, the marriage of Leslie and appellee Lynda occurred years after the slayings, as did the birth of appellee Glenn. We express no opinion as to the rights of the appellees had their relationship to Leslie A. Wright been in being, as was appellant’s, when these murders occurred. We cannot agree with appellees that a civil court adjudication of the wrongful killings in the case at bar must precede the slayer’s demise. Appellant’s petition to quiet and confirm title to all the lands should be granted.

Reversed and remanded for entry of a decree consistent with this opinion.


text:
    Blanche WOOD v. STATE of Arkansas Herman WOOD and Blanche WOOD v. James BARTON and Robert PHILPOT
    5446-5-5452
    450 S. W. 2d 537
    Opinion delivered February 16, 1970
    [Rehearing denied March 23, 1970.]

      Donald Poe, for appellant.

      Joe Purcell, Attorney General; Don Langston, and Mike Wilson, Asst. Attys. Gen., for appellee.
   Frank Holt, Justice.

The appellant, Blanche Wood, was charged by information with the crime of cruelty to a child. Ark. Stat. Ann § 41-1105 (Repl. 1964). A jury imposed a $100 fine and three months’ jail sentence with a recommendation that the jail sentence be suspended. The trial court accordingly rendered judgment on that verdict. In a separate proceeding the circuit court upheld the action of the County Juvenile Court finding that the two adopted children of appellants, Blanche and Herman Wood, were dependent and neglected children and its order removing them from their custody. The two separate cases are consolidated for appeal purposes.

We first discuss the appeal relating to child abuse. For reversal appellant, Blanche Wood, contends that the trial court erred in refusing to grant her a change of venue. In support of her motion, she submitted the affidavits of five persons to the'"éffect that appellant could not receive a fair and impartial trial in Polk County. The state presented oral evidence to the contrary from eight witnesses which was followed by rebuttal testimony of five witnesses for appellant. This procedure is provided for in Ark. Stat. Ann. § 43-1501 et seq. (Repl. 1964). A practicing attorney and a former sheriff were among appellant’s witnesses who testified that a hostile public feeling existed throughout the county against appellant. The appellant also submitted evidence relating to radio broadcasts and published news articles in support of her contention that public prejudice existed. One exhibit is a newspaper column entitled “Stargazing” in which the writer in effect condemns child abuse and commends the county judge for his corrective efforts. Appellant’s name is not mentioned. Another exhibit is a newspaper report factually relating to the transfer of the child abuse case from municipal to circuit court. Another exhibit is a newspaper article reciting that a petition was filed in the county court seeking to remove the children from the custody of both appellants. It quoted the strong feelings expressed by the county judge on the subject of child abuse.

In contradiction the state presented witnesses who had an extensive or countywide acquaintance. They consisted of two car dealers, the administrator of the Polk County Memorial Hospital, a farmer, the operator of a public garage, a rural resident for appoximately 22 years, the manager of the local radio station, and a photographer who was a longtime resident of the county. According to them the appellant could be accorded a fair and impartial trial by a jury selected in that county. Further, on cross-examination, one of appellant’s witnesses stated: “From what I have heard others say, I believe she could obtain h fair trial, yes, sir.”

It was proper procedure for the court to receive oral testimony to support the position of either the defendant or the state. Bailey v. State, 204 Ark. 376, 163 S. W. 2d 141 (1942); Trotter and Harris v. State, 237 Ark. 820, 377 S. W. 2d 14 (1964). We have often said that unless the trial court abuses its discretion when it overrules a motion for a change of venue the court’s order is conclusive on appeal. Meyer v. State, 218 Ark. 440, 236 S. W. 2d 996 (1951); Perry and Coggins v. State, 232 Ark. 959, 342 S. W. 2d 95 (1961); Lauderdale v. State, 233 Ark. 96, 343 S. W. 2d 422 (1961). In Bailey v. State, supra, we stated:

“* * * the presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed, and that in order to overcome this presump don the defendant must show clearly that this cannot be done. Indeed, a change of venue in a criminal prosecution must be deemed a wrong to the public unless the necessities of justice to the accused require it, and before a court is justified in sustaining an application therefor on account of the prejudice of the inhabitants of the county, it must affirmatively appear that there is such a feeling of prejudice prevailing in the community as will be reasonably certain to prevent a fair and impartial trial.”

In the case at bar, the trial court observed:

“Now, based upon the evidence that I have heard, I don’t think anybody could conscientiously say that I have heard evidence which affirmatively shows me that there is such a feeling of prejudice prevailing in this community as would be reasonably certain to prevent a fair and impartial trial. To the contrary, the preponderance of the evidence shows me that she can receive a fair trial. Hence, the motion for change of venue is denied, and the defendants exceptions to the ruling of the court are noted of record.”

When we apply our well established rules of law respecting appellant’s motion for a change of venue, we cannot say that the trial court abused its discretion in refusing appellant’s motion.

Appellant next contends that the trial court erred in allowing testimony of other whippings or cruel punishment which occurred prior to the alleged offense upon Mary Wood on March 14, 1969. Mary, appellant’s adopted daughter, is 14 years of age and in the eighth grade. She testified that before she left for school on March 14, her mother became angry with her about the toaster, her clothing, and leaving a protractor at school and administered three separate beatings with a strap. There was evidence that the whippings consisted of 20 to 50 licks across her back, shoulders, and arms. According to the medical and photographic evidence and testimony of witnesses who observed the girl’s condition, her back was bruished and swollen with bleeding underneath the skin and blood would ooze from the outer edges of the wounds when pressure was applied. She also testified that on the previous day her mother had strapped her and hit her on the head with a dull object. She exhibited scars from scalp wounds which she attributed to her mother. The court permitted Mary, her brother, Don, 12 years of age, and others to testify about these and other prior acts of appellant mistreating her over a period of time dating back several years, or to when she was in the third grade.

Appellant argues that the incident of March 14 was the “gravamen” of the offense alleged in the information, that the testimony regarding previous mistreatment had no connection with the alleged offense on that date, and that the other offenses “were so remote as to be irrelevant.” We cannot agree. Appellant was charged with violating § 41-1105. It will be noted that an element of this statute requires proof of habitual cruel mistreatment. It was, therefore, proper to introduce previous acts of misconduct to meet this requirement. Furthermore, the court instructed the jury whenever such evidence was introduced, as well as in its final instruction, that the jury should consider this evidence only for the purpose of showing appellant’s intent, motive, habit or practice.

Appellant cannot claim surprise or prejudice on account of this evidence. The appellant, in her motion for a bill of particulars, asked that the prosecuting attorney “[sjtate the alleged facts and incidents of habitually and cruelly mistreating and when and where.” To which the state responded that it planned “to show numerous acts occurring within the previous five or six years — beatings.” Nor was it error for the state to allege acts of cruelty in the disjunctive. The information merely copies the wording of the statute and does not allege more than one separate and distinct offense. In Harris v. State, 259 Ark. 771, 394 S. W. 2d 135 (1965), we said: “* * * An indictment or information, except as provided in Ark. Stat. Ann. § 43-1010 (Repl. 1964) our joinder statute, must charge only one offense, however, if it could have been committed by different modes and means the indictment or information may allege the modes and means in the alternative. Ark. Stat. Ann. § 43-1009. (Repl. 1964).” We further said: “* * * The rule of inadmissibility of other crimes has no application when other crimes are an inseparable part of the alleged crime. If crimes are mingled to such an extent that they form an indivisible transaction and the full proof of any one of them cannot be presented without showing the others, then evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.”

It is firmly established that evidence of other crimes similar in nature to the offense being tried and not too remote is admissible as bearine UDon intent, motive, habit and practice. Hummel v. State, 210 Ark. 471, 196 S. W. 2d 594 (1946); Roach v. State, 222 Ark. 738, 262 S. W. 2d 647 (1953). In child abuse cases, such as incest and carnal abuse, we have held that the state may show other acts of misconduct perpetrated upon the child. Adams v. State, 78 Ark. 16, 92 S. W. 1123 (1906); Williams v. State, 156 Ark. 205, 246 S. W. 503 (1922). In Adams v. State, supra, we approved evidence that tended to prove incestuous conduct which commenced 6 to 7 years before the defendant was charged and that it continued up to the time of the alleged offense. See, also, Roach v. State, supra; Ward v. State, 236 Ark. 878, 370 S. W. 2d 425 (1963). In the case at bar we are of the view that previous acts of cruelty or mistreatment were admissible evidence as being in conformity with the terms of the statute as well as our cases on this subject.

The appellant next contends that the trial court erred in refusing to admit evidence and to give instructions on the right of the appellant, as a parent, to chastise her daughter tor infractions. As to the evidence, we do not find that the trial court refused any evidence offered by the appellant on her right to correct her daughter. In fact, the appellant and her husband and other witnesses were allowed to present testimony that both the boy and the girl were “problem children” and to detail instances of their incorrigible conduct consisting of lying, stealing, disrespect, and disobedience. It is fair to say that the theme of appellant’s rejected instructions is that a parent is not responsible for punishment inflicted upon a child which is merely excessive or immoderate and, further, that it was incumbent upon the state to prove that the parent acted with a wicked or malicious purpose and not in the exercise of acceptable authority. Appellant cites cases from other jurisdictions and none from ours.

Appellee, the state, relies upon § 41-1105 and argues that this statute requires the state to prove the element of cruelty as contended by appellant. This statute obviously precludes a conviction where the parent merely used bad judgment. It appears that the appellant’s theory was fully presented to the juy when the court read the statute and then, by its Instruction No. 8, restricted consideration of the case to acts of cruelty or habitual mistreatment. The two adopted children described these acts of mistreatment by the appellant, which evidence the jury could believe as it apparently did. The appellant and her witnesses categorically denied the testimony of the children. Appellant presented evidence that she and her husband had provided love and a good Christian home, and had spent large sums of money on the children in an effort to be good parents. There is evidence that appellant is suffering from a terminal cancer as a result of a radical breast operation which would make it impossible for her to wield a rope, a slat, a strap, or any other object to inflict corporal punishment. Both parents claim that the extent of any punishment administered by them was to require the children to take certain physical exercise to which they objected. However, the appellant herself admitted that she required the two children to administer punishment to each other because she “couldn’t punish them.” We are of the view that the issues were fairly presented to the jury based upon instructions given by the court.

Next appellant asserts that the court erred in giving its Instruction No. 6 which covered matters not in eluded in the evidence nor the information. It appears appellant is referring to that part of the instruction which refers to depriving a child of necessary food, clothing or shelter. This instruction follows verbatim the statute alleged to have been violated. We have often held that an instruction which, in effect, is a reading of the statute alleged to have been violated and which is applicable to the facts of the case is proper. Graham v. State, 202 Ark. 981, 154 S. W. 2d 584 (1941); Stard v. State, 204 Ark. 247, 161 S. W. 2d 756 (1942). By Instruction No. 8 the court properly defined that part of the statute which is applicable to the facts in the case-at bar. Omitted, as an element of the alleged offense, was any reference to depriving appellant’s child of necessary food, clothing or shelter. Therefore, we find no merit in appellant’s contention.

Appellant next contends that she should be granted a new trial on newly discovered evidence as shown by a “petition filed herein.” This petition was filed in this court two months subsequent to the transcript being filed. Pursuant to our rules we denied the filing of the petition. Although we cannot consider this petition, we observe that this is without prejudice to the appellant to properly present this motion to the trial court.

We next discuss the appeal of Blanche and Herman Wood from the judgment of the circuit court affirming the order of the juvenile court in removing their two adopted children from appellants’ home. On March 14, 1969, the same date that appellant, Blanche Wood, was charged with child cruelty, a petition was filed in the county juvenile court by two members of the Polk County School Board alleging that Mary and Don Wood were dependent or neglected children and asking that they be removed from the custody of their parents. The appellants assert that the proceedings in the juvenile court were void ab initio because appellants were not made and named parties defendants and were not served with summons as required by § 45-210 et seq. It appears that both appellants and their address were named in the original petition; that two subpoenas, not included in the record, were issued “to appear and testify”; that a copy of the temporary order was served upon appellant Herman Wood, the father; that on March 25, 1969 the children appeared in the juvenile court and testimony was adduced from 12 witnesses, including the children; that appellants were present and refused the offer to testify or produce evidence; that their attorney, who accompanied them, cross-examined the witnesses produced by the petitioners; that the appellants appealed from the order of the juvenile court to the circuit court; and that on April 23, 1969 the appellants filed an intervention denying each and every material allegation contained in the original petition filed in juvenile court. On May 16, 1969, or the day following the criminal trial, the circuit court conducted a hearing on the appeal from the juvenile court order. Should we say, which we do not, that the proceedings in the juvenile court were void ab initio, the appellants are in no position to complain. They were present and represented by counsel on their intervention in the circuit court proceedings. This was a trial de novo upon the merits of the case and the appellants are in no position to invoke any jurisdictional defects, if such existed, in the juvenile court proceedings.

Nor can we agree with appellants that the evidence was insufficient to sustain the finding and order of the circuit court which affirmed the action of the juvenile court removing the children from the custody of the appellants. The court had before it, by agreement of the parties, the testimony that had been presented the previous two days in the trial of the criminal case relating to the habitual mistreatment of the children by the appellants. The children again repeated their testimony that their mother had beaten Mary with a hose, a board, a rope, and a strap and that the father had never attempted to stop this mistreatment except on one occasion when the mother was attempting to choke Mary. The children testified that they had to wear discarded or used clothes to their embarrassment; that they were required to eat at a separate table and that when they refused to eat certain food, they would get a beating; that the mother would call Mary opprobrious names and use curse words. There was other evidence detailing offensive treatment that is unnecessary to mention. According to the school officials the children had average intelligence but they were two to three years behind their achievement tests. Both were making failing grades in most of their subjects. One official testified that one of the problems with Mary was her stealing and telling lies. He further testified that the appellant, Blanche Wood, became angry with him when he refused her request to administer corporal punishment to Mary in front of her classmates. Don testified that his mother required him to eat cigarette filters found in the dog pen when she suspected that he had been smoking. Two county school board members, who are the petitioners, testified that they had observed Mary Wood on March 14th and that she had been severely or brutally beaten with some sort of strap or other object. As in the criminal proceeding, the appellants denied any mistreatment or neglect of their children. Appellants presented evidence that they had always provided a proper home, care and affectionate parental attention- to their children. The evidence is in conflict and we cannot say that it is insufficient to sustain the action of the trial court.

We find no error in the proceedings in either case and both judgments are affirmed.


author: Carleton Harris, Chief Justice.

text:
    Odus H. LeMAY v. TRINITY LUTHERAN CHURCH et al
    5-5145
    450 S. W. 2d 297
    Opinion delivered February 23, 1970

      Branscum, Schmidt & Mazzanti, for appellant.

      Harley Cox, George Holmes and Charles Goldberger, for appellee.
   Carleton Harris, Chief Justice.

This case represents another effort to persuade this court to discard and repudiate the doctrine of charitable immunity to tort actions. Properties belonging to Trinity Lutheran Church, one of the appellees herein, and Odus H. Le-May, appellant, adjoin each other, being located within a residential section of Pine Bluff. According to the complaint filed by LeMay against the church and Peter Smykla, Jr., Chairman of the Board of Trustees, a large oak tree, located on the church property, fell on appellant’s house, damaging same in the amount of $6,872.56. It was alleged that notice had been given that the tree was leaning toward appellant’s home, and was dangerous and hazardous to person and property because of its decayed and defective condition; nonetheless, appellee negligently failed to remove it. Judgment was sought in the amount heretofore mentioned. The church and Smykla filed separate demurrers, setting out that Trinity Lutheran Church is an eleemosynary or religious institution, and, as such, was not liable for negligence. The church further asserted that the acts alleged to be negligent in the complaint were with respect to properties owned in connection with religious activities, non-proprietary in nature. Smykla asserted that, being sued in his representative capacity, there was no liability. On hearing, the demurrers were sustained by the Jefferson County Circuit Court, and from the judgment so entered, appellant brings this appeal.

Appellant argues that charitable' immunity as a defense in a tort action is no longer supported by public policy, and, although a “rule of property,” should no longer be allowed by this court; further, that charitable immunity is not recognized as a defense in any foreign country, and is rapidly dying in the United States. Though a creditable brief in support of his position is presented, we see no need to again discuss this question, since the issue, and our cases on the subject were thoroughly reviewed in Williams v. Jefferson Hospital Association, Inc., 246 Ark. 1200, 442 S. W. 2d 243, this opinion being handed down just eight months ago (June 9, 1969). We reiterate what was there said.

There is no allegation in the complaint that the activities of appellees are other than religious activities, and we agree that the trial court properly sustained the demurrers.

Affirmed.