author: Frank Holt, Justice.

text:
    Laymon BUCK v. MONSANTO COMPANY and MATHEWS OIL COMPANY
    73-40
    497 S.W. 2d 664
    Opinion delivered July 2, 1973
    [Rehearing denied August 27, 1973.]

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

      Davis, Plegge & Lowe, for appellees.
   Frank Holt, Justice.

The narrow issue before us on this appeal involves the construction of an indemnity provision of a lease agreement. This is the basis for the judgment rendered against appellant Buck, who operated a service station as a sublessee. Originally the service station was leased from appellee Monsanto by appellee Mathews. Mathews then subleased to Buck. Both lease agreements contained similar indemnity clauses. The pertinent part of the agreement between Mathews and Buck provided:

“Lessee agrees to protect, indemnify and .save lessor harmless from any and all liability for loss, damage, injury or other casualty to persons or property caused or occasioned by any leakage, fire or explosion of gasoline and kerosene or other products stored in any tanks or drawn through any pumps located at or on the above described premises whether due to imperfections in the equipment or any part thereof, latent or patent, or whether the same may arise from negligence or otherwise, or from any and all liability arising from any other cause arising out of the use, occupancy, or possession of said premises by Lessee.”

During the term of Buck’s sublease, his employee was injured by a gasoline fire ultimately found by the jury to have been the result of a customer’s negligence in lighting a match while his tank was being filled at the service station by Buck’s employee. The injured employee sought damages from the customer and his employer. By various cross-complaints, Monsanto, Mathews and Buck were made parties to the action. Monsanto and Mathews each retained counsel to defend themselves against the alleged affirmative acts of negligence on their part after both companies, invoking the indemnity provisions, tendered their defense to Buck who failed and refused to defend on their behalf. Before trial Buck filed a demurrer which was sustained as to his tort liability on the ground that he had made Workmen’s Compensation payments to his injured employee. The question of indemnity was reserved with the right to plead further. At trial a non-suit was taken against Mathews. Monsanto was exonerated of any negligence by the jury. Thereupon Mathews filed a cross-complaint against Buck for reimbursement of its costs under the indemnity provisions of the lease then in effect between the parties. Likewise, Monsanto petitioned for its costs of defense against Mathews under its existing lease indemnifying provision.

The trial court entered judgment as follows: (1) Monsanto was given judgment against Mathews for its costs of defense being in the amount of $5,916.67 and (2) Mathews was given judgment against Buck for its costs of defense, being in the amount of $3,280.96, and additionally for the $5,916.67 Mathews was required to reimburse Monsanto. From that judgment comes this appeal.

Inasmuch as there is no judgment in favor of Monsanto against Buck and Mathews has not cross-appealed from Monsanto’s judgment against Mathews, it follows that Monsanto correctly contends that it is not a proper party to this appeal.

It is appellant’s contention that the indemnity clause does not purport to provide indemnification to appellee Mathews (nor Monsanto) for their alleged independent acts of negligence or for the costs of defending such an action where such separate and distinct acts of negligence are alleged as the basis for the suit. Appellant’s only argument is that the party upon which a demand is made has the right to determine its contractual responsibilities by the allegations made in the complaint as in contracts of insurance citing Equity Mutual Ins. Co. v. Southern Ice Co., 232 Ark. 41, 334 S.W. 2d 688 (1960) and Fisher v. Travelers Indemnity Co., 240 Ark. 273, 398 S.W. 2d 892 (1966).

Mathews relies, however, and correctly so, upon our recent holding in Pickens-Bond Const. Co. v. NLR Elec. Co., 249 Ark. 389, 459 S.W. 2d 549 (1970). There we considered a contract of indemnity ánd held that an indemnity clause, general in scope as is the case at bar, “would cover any situation where the damage or injury is not due to the” indemnitee’s “sole active negligence.” In the instant case, a non-suit was taken as to Mathews by the original defendants. Also, Mathews was granted a directed verdict on Monsanto’s cross-complaint for contribution. Monsanto was exonerated by the jury. Certainly, there was no finding that the alleged personal injuries were caused by Mathews’ (or Monsanto’s) “sole active negligence” which is required to sustain appellant’s contention.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    PHILLIPS CONSTRUCTION COMPANY v. C. H. WILLIAMS D/B/A BLYTHEVILLE ROOFING COMPANY
    73-52
    496 S.W. 2d 417
    Opinion delivered July 2, 1973

      Moore ir Cleveland, for appellant.

      Reid, Burge ir Prevallet, for appellee.
   Frank Holt, Justice.

The appellee, a subcontractor, brought this action against the appellant, a general contractor, for the balance due on a construction contract. The contract provided that appellee would furnish labor and materials and construct a roof for a school complex according to the architect’s revised plans and specifications. Appellant paid appellee $36,000 of the $43,486 contract price but refused to pay the $7,486 balance until appellee corrected alleged defects in the roof to conform to the architect’s requirements. Appellee orally amended his complaint by increasing his claim $1,612 for extra work and material or for a total of $9,098. After hearing the evidence, the trial judge, sitting as a jury, found for the appellee. From the judgment upon the $9,098 verdict comes this appeal.

For reversal, appellant first contends the court erred in finding that appellee’s work complied with the revised plans and specifications as agreed to in the written contract. We disagree. Of course, this contention presents a question of fact. In this regard we have said:

“It is the province of the jury or the trial court, sitting as a jury, to determine the preponderance of the evidence. However, on appeal we apply the substantial evidence rule in testing the sufficiency of the evidence to support a finding and verdict and, in doing so, we review the evidence and all inferences deducible therefrom in the light most favorable to the appellee in support of the verdict. Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W. 2d 822 (1968). Nor do we disturb a finding of fact merely because the testimony is in conflict. On appeal it must appear to us that ‘there is no reasonable probability that the incident occurred as found by the [jury] trial court sitting as a jury.’ Fanning v. Hembree Oil Co., supra.

Fields v. Sugar, 251 Ark. 1062, 476 S.W. 2d 814 (1972).

In the case at bar, the testimony is conflicting. An architect, a witness for appellant, testified that certain parts of the roof were defective because of the existence of “a gummy substance,” which was caused by improper installation of the roof and a failure to follow the manufacturer’s specifications. Test cuts were made and a laboratory report revealed the existence of the gummy substance. He, also, testified, that there was a defective condition in the roof as a result of the presence of moisture in the insulation. This was caused by installing the roof base sheet over wet instead of dry insulation contrary to the manufacturer’s specifications. In substance, appellant’s evidence, by the architect, was to the effect that the roof had not been completed in accordance with the plans and specifications. The appellant’s president testified, however, that he had not paid the appellee because the school district, at the direction of the architect, had not paid his firm.

Appellee testified that he had built a “good roof” which was as “perfect” as could possibly be constructed; that the roof was built “exactly” as the architect instructed; that the roof was constructed according to the manufacturer’s specifications; and that the testing laboratory used by the architect and appellant made no recommendations for corrective procedure. Furthermore, he had completed 95% of the roof under the supervision, control and approval of two of the architect’s representatives before another representative, the appellant’s witness, was assigned to the project. It was admitted by this witness that these representatives had the authority to waive, change, or modify the specifications in order to meet the needs of the construction. In substance, appellee’s testimony was to the effect that he had followed specifications in the construction of the roof which was free of any defects. Further, that the payment for the construction and installation of “extras” was agreed to by the appellant. Appellee’s testimony that he had installed a good roof was corroborated by another roofer with many, years experience.

As previously indicated, the conflicting versions as to the evidentiary facts were matters for the fact finder to reconcile. Furthermore, appellant’s failure to call the two architectural employees who supervised with approval 95% of the construction, as well as not producing a representative of the testing. laboratory, could be construed as an inference that their testimony would have been unfavorable. Brower Mtg. Co. et al v. Willis et al, 252 Ark. 755, 480 S.W. 2d 950 (1972). Upon a consideration of that evidence which is most favorable to appellee, as we do on appeal, we must say there is substantial evidence to support a finding for the appellee. Accordingly, other contentions relating to the sufficiency of the evidence are without merit.

Neither can we agree with appellant’s assertion that the trial court abused its discretion by allowing a local roofer to testify as an expert witness for the appellee. Appellant recognizes that we will not reverse unless there is an abuse of discretion in this situation. Ray v. Fletcher, 244 Ark. 74, 423 S.W. 2d 865 (1968). In the case at bar, this witness on direct examination testified that he had been a roofer for some 26 years; that he was familiar with the type of roof installed by appellee; and that he had installed roofs of a similar nature. The court then overruled appellant’s objection that the witness had not demonstrated he was qualified as an expert.

On cross-examination, it was elicited that the witness had not constructed a roof of this type in 10 to 12 years. However, the witness testified that he had “built” a roof according to the very specifications in the case at bar. Although the lapse of time since he had constructed a similar roof might be said to cast doubt upon him as being an expert witness, there is nothing to indicate that appellant objected to this further testimony or moved to strike it or otherwise directed the trial court’s attention to the effect of his testimony on the court’s previous ruling on the subj ect.

In the circumstances, we hold that the trial court did not abuse its discretion in permitting the witness’ testimony as an expert. The facts that he had not installed this kind of roof for the past several years and that his inspection was limited to a visual observation of the exterior of the roof were matters to be considered by the fact finder as bearing upon his credibility as a witness.

We have considered all of appellant’s contentions and find no merit in any of them.

Affirmed.


author: PER CURIAM

text:
    Charles T. BERNARD, Individually, and as Chairman of the Arkansas Republican Party v. Max HOWELL et al
    73-136
    496 S.W. 2d 362
    Opinion delivered July 2, 1973

      Bob Scott, for appellant.

      Leon B. Catlett, R. A. Eilbott and Larry D. Douglas, for appellees.
   PER CURIAM

IN RE: RULE ON CLERK DENIED

This involves a petition filed by the attorney for Charles T. Bernard, et al. for a rule on the clerk directing, him to accept, file and docket, a record on appeal to this court.

The petitioner, Charles T. Bernard, individually and as chairman of the Arkansas Republican Party filed a class action in the Pulaski County Chancery Court challenging as unconstitutional, the manner in which the members of the Arkansas Senate of the 69th General Assembly divided their terms by lot under Section 6 of Amendment 23 to the Constitution of Arkansas.

The petitioner filed notice of appeal to this court from an adverse decree of the chancellor and he tendered the transcript of record to the clerk of this court on the 91st day after the notice of appeal was filed. The clerk of this court refused to accept and file the record because it was not tendered within 90 days as required by Ark. Stat. Ann. § 27-2127.1 (Supp. 1971) which reads as follows:

“The record on appeal shall be filed with the appellate court and the appeal there docketed within 90 days from the date of filing the notice of appeal; except that, the trial court may prescribe the time for filing and docketing, which in no event shall be less than 90 days from the date of filing the first notice of appeal. In all cases where there has been designated for inclusion any evidence or proceeding at the trial or hearing which was stendgraphically reported, the trial court, after finding that a reporter’s transcript of such evidence or proceeding has been ordered by the appellant, in its discretion and with or without motion or notice, may extend the time for filing the record on appeal and docketing the appeal, if its order for extension is made before the expiration of the period for filing and docketing as originally prescribed or extended by a previous order; but the trial court shall not extend the time to a date more than seven (7) months from the date of the entry of the judgment or decree.”

The petitioner readily admits that the record was tendered to the clerk of this court on the 91st day after the notice of appeal was filed, and that the clerk was correct in refusing to accept the record and docket the appeal. The petitioner argues, however, that this court should exercise its inherent discretion in ordering the clerk to accept the record and docket the appeal because of unavoidable casualty, exceptional circumstances or lack of prejudice to the adversaries.

The petitioner states no “unavoidable casualty” at all. He admits that he obtained the transcript of the record on April 25, 1973, but it was not tendered to the clerk of this court until June 6, 1973. No request was made to the trial court or to this court for extension of time for filing the record on appeal. The only “exceptional circumstances” the petitioner asserts in justification of the delay, are his statement that he was busily engaged in important criminal litigation in the state of Kentucky requiring his presence in that state much of the time during April and May; that he had employed a new secretary who had no legal experience, and who was not familiar with the office routine or his cases, and that his two associates in the practice of law had disassociated themselves from his practice. The petitioner does not state why he did not file the record in this court on the date he received it or make timely request for extension of time for doing so. The petitioner states, what we consider his primary reason for the delay, in paragraph 6 of his petition as follows:

"At the time of acquiring this transcript on the 25th day of April, 1973, counsel noted the date of filing the Notice of Appeal and calculated that the transcript would need to be lodged no later than June 6th, 1973. At the time, counsel laid this transcript aside anticipating a call to return to Bowling Green, Kentucky and intending to file the transcript upon return from the Kentucky trial, which at that time was expected to be completed by May 10th or 15th. Shortly after receipt of the transcript, counsel received a call to return to Bowling Green and continued thereafter in the active daily participation in the defense of the criminal conspiracy case.”

This court has been very liberal in accepting late appeals in criminal cases, but we have held that § 27-2127.1, supra, does not apply to criminal cases. Philyaw v. State, 224 Ark. 859, 277 S.W. 2d 484. But in civil cases we have refused to exercise our inherent powers in accepting late appeals “except in a most extraordinary situation.” West v. Smith, 224 Ark. 651, 278 S.W. 2d 126.

The petitioner cites the Smith case, supra, in support of our inherent power to grant his peition but we went much further than recognizing our inherent power in the Smith case. In Smith we said:

“Since the question here presented arises under Act No. 555 of 1953 [Ark. Stat. Ann. § 27-2127.1] we are delivering this opinion as a precedent for future cases. (Our present emphasis).

Then, as a precedent for future cases, in Smith, we said:

“It is not to be doubted that under our inherent constitutional power, this Court could, in a most exceptional case, allow a record to be filed after the tíme fixed. However, the fact that we have the power does not mean that it should be exercised except in a most extraordinary case. Here, there is no such: the parties let the time expire for filing the record and also let the time expire in which to ask the Trial Court to grant an extension. There was no flood, death, riot, act of God, or other great unavoidable casualty that prevented either the filing of the record within time or timely request to the Trial Court to grant extension. This Court has possessed the same inherent power ever since Statehood; but in a long line of cases we have refused to exercise that inherent power to allow an appellant to present the evidence when it was filed too late. Some such cases are: Chandler v. State, 205 Ark. 74, 167 S.W. 2d 142; Johnson v. U.S. Gypsum Co., 217 Ark. 264, 229 S.W. 2d 671; Criner v. Criner, 217 Ark. 722, 233 S.W. 2d 393; and Prescott, Ark. Tel. Corp. v. McFarland, 217 Ark. 731, 233 S.W. 2d 70. We see no reason for departing, in the case at bar, from the rule established in our adjudications.
* * #
The prevailing litigant in any case is entitled to know when the judgment becomes final. If the Trial Court has fixed a time for the filing of the record on appeal and that time has expired then the prevailing litigant should be allowed to presume that the judgment is final in the absence of great unavoidable casualty. If four days after the time has expired the Trial Court can then grant a further extension, then three months after the time has expired the Trial Court can grant an extension; and no judgment would ever be final until seven months from the date of rendition in the Trial Court. That was not the purpose of the law: and in the interest of finality this Court should not exercise its inherent powers except in a most extraordinary situation.”

Very recently, in the unreported cases of Mary Frances Jaynes v. David J. Potter and T. J. Horton, et ux. v. Maurine Flynn, we denied petitions for rule on the clerk where better reasons were stated therefor, than in the case now before us. In Jaynes the petitioner had been permitted to represent herself in the Miller County Circuit Court; she miscalculated the appeal time and submitted her transcript of record to the clerk of this court three days late. We denied her petition for a rule on the clerk. In Horton the transcript was not completed until the close of business at noon on Saturday in the Searcy County Clerk’s office. A holiday intervened on the following Monday and the transcript was not picked up by the attorney until Tuesday. It was tendered to the clerk of this court the following day which fell on the 91st day after the notice of appeal was filed. Due to press of business the time for appeal was also miscalculated in that case but we denied the motion for rule on the clerk.

We find no reason to make an exception in the case now before us, so the petition for rule on the clerk in this case is denied.

Holt, J., disqualified.


author: Carleton Harris, Chief Justice.

text:
    UNIGARD INSURANCE COMPANY of Seattle, Washington v. Lloyd C. WISH
    73-57
    496 S.W. 2d 392
    Opinion delivered July 9, 1973

      Barber, Henry, Thurman, McCaskill & Amsler, for appellant.

      Guy Jones Jr., Guy H. Jones, and Phil Stratton, for appellee.
   Carleton Harris, Chief Justice.

On March 2, 1972, appellee’s 1971 Chevrolet automobile received extensive damage in an automobile accident. At the time of this occurrence, appellee, Lloyd C. Wish, held a policy with appellant Unigard Insurance Company which was in full force and effect, such policy providing property damage coverage for appellee’s automobile. The company offered to pay the cost of repairs less the $100.00 deductible (as set out in the policy), but Wish contended that he was due the difference between the fair market value of the automobile immediately before and immediately after the accident. Suit was accordingly instituted and tried by the court, sitting as a jury. At the conclusion of the trial, the court awarded judgment to appellee in the sum of $2,450.00, plus 6% interest until paid, plus 12% penalty, and an attorney’s fee in the amount of $800.00, together with court costs. From the judgment so entered, appellant brings this appeal. For reversal, it is asserted that the trial court erred in holding that the measure of appellee’s damages was the difference between the value of the car immediately before the damage occurred and the value thereof immediately after the damage occurred, and it is asserted that there was no substantial evidence to support a finding that Wish’s automobile was a total loss.

Appellant relies upon the provisions in the policy entitled “Limit of Liability” which reads as follows:

“The limit of the Company’s liability for loss shall not exceed the actual cash value of the property, or if the loss is of a part thereof the actual cash value of such part, at time of loss, nor what it would then cost to repair or replace the property or such part thereof with other of like kind and quality, nor, with respect to an owned automobile described in this policy, the applicable limit of liability stated in the declarations.”

Also, under “Conditions”, appellant mentions ‘Condition No. 12’ which states:

"Automobile Physical Damage Section-The Company may pay for the loss in money; or may repair or replace the damage or stolen property; or may, at any time before the loss is paid or the property is so replaced, at its expense return any stolen property to the named Insured, or at its option to the address shown in the declarations, with payment for any resultant damage thereto; or may take all or such part of the property at the agreed or appraised value but there shall be no abandonment to the Company. The Company may settle any claim for loss either with the Insured or the owner of the property.”

Appellee has never contended that the cited provisions of the contract are conflicting or ambiguous, but simple contends that the measure of damages is the difference between the value of the automobile immediately before and immediately following the accident. The car was towed to Bill Dean Chevrolet Company in Conway and subsequently Mr. Dean purchased the car for $650.00. The principal damage appeared to be to the frame. Mr. Lloyd Wish testified that the insurance company offered to repair the automobile, but he stated that he was advised that it was not repairable and he thus refused to consent to repairs. The son, Claude, who generally operated the car, and who was driving it at the time of the accident, testified that he talked with Hugh Arendall, shop foreman for Dean Chevrolet, who stated that if the car belonged to him (Arendall) he would not have it fixed. Orville F. Gwinn, an automobile salesman, testified that he was familiar with the automobile; that Lloyd Wish and his son were longtime customers, and that in his opinion, the Wish automobile had a resale value of approximately $3,975.00 at the time it was wrecked. He did not see the car after the wreck. Gwinn testified that the book value at the tíme of the collision was $3,275.00, but he stated that book value did not give consideration to options, nor did it consider high mileage.

William J. Dean, Chevrolet dealer, testified that the car was extensively damaged, and “in practically every instance they are worth less money after they are repaired. A used car on a used car lot that has been wrecked is just not worth as much as another car of the same kind that hasn’t been wrecked.” He said that his company sold the car for $900.00, having “found a man that had a car like this that was hit on the other end, and he cut them in two and made one.” Mr. Dean, when asked if the car had been “totaled out”, replied that he really did not know what was meant by that terminology. Though asked several questions relating to whether the car was “totaled”, Mr. Dean would never make such a statement. He said he would not have repaired the car and put it up for sale to the public “mainly because of the used car reputation (of his company).”

H. E. Martin, an insurance adjuster, testified that he handled the claim for appellant company. He testified that he went to the office of the attorney for Wish but when asked if he discussed repairs with counsel, Martin replied, “I didn’t have a chance. I offered, your honor, but Mr. Jones said they didn’t want to repair it, they wanted it totaled.” Some of the statements were hotly disputed by counsel, but it does appear that the discussion, from the standpoint of appéllee related to market value. Martin testified that when he “saw we couldn’t get together”, he went back to Dean’s, talked with the foreman and following that conversation, the estimate was changed, the new frame and labor being removed, $100.00 to repair the frame being added, and the estimate thus reduced to $961.00; this amount, less the $100.00 deductible, was offered in settlement.

Hugh Arendall, body • shop foreman for the Dean Shop, testified that he had been doing body work for twenty-six years, and that he gave Mike Wish the original estimate, which was $1,366.73. He stated, however, that in his opinion, the frame could have been repaired without a new frame assembly at a cost of about $100.00. He stated that if he had performed the repairs, it was his opinion that the car would have been “as good as it was before the wreck.” He said that Wish told him that he. did not want the car repaired. Arendall stated that the frame was damaged in the rear, but there was no damage at all at the front and he reiterated, in response to- the question of what the car would be worth after he had fixed it, “All I could say it would be like it was before it was wrecked.”

In order for the judgment which was entered against appellant to have been given, it was necessary that the circuit court find that the measure of appellee’s damages was the difference between the value of his automobile immediately before and immediately following the accident rather than the cost of repairs. We think, under the terms of the policy that this finding was erroneous and cases dted by appellee are clearly distinguishable. Under the provisions found in “Limit of Liability” heretofore set out, we are of the view that this litigation is controlled by the opinion of this court in Traders & General Insurance Company v. Williams, 229 Ark. 923, 319 S.W. 2d 847. There, the “Limit of Liability” section in the policy was substantially the same as that in the instant case, and it was insisted by the insurance company that the evidence of value before and after the collision was inadmissible. We held that the evidence was admissible, but then stated:

“When we consider together these two sections of the policy, it is clear that Williams was entitled to show (a) his loss by the ‘before and after’ value rule; and then (b) to completely establish that his loss was within the limit of liability [our emphasis] he could show the cost of repairs. There was certainly no error in allowing the evidence offered, and the instruction given by the Trial Court at the request of the defendant made the point clear.”

In Tri-State Insurance Company v. McCraw, D/B/A O & M Lumber Company, 252 Ark. 1259, 483 S.W. 2d 212, we further stated that a property damage limitation of liability is valid and that recovery is dependent upon the terms of the contract rather than on the difference in the before and after value of the vehicle. If this figure had been equal to or less than the amount necessary to repair the car, appellee could have recovered the difference between the before and after value. But such is not the case. The estimated cost of repairs was only $961.73. Of course, our finding would be different if the testimony reflected the Wish automobile to have been a total loss. But there is no evidence to that effect in the record. The only evidence on this point by appellee’s witnesses was that a wrecked automobile which had been repaired was never as valuable for resale purposes as one which had not been wrecked. Not a single person testified that the car was a total loss._

It follows from what has been said, that the trial court erred in its conclusions, and the judgment is reversed with directions to enter a judgment for appellee in the amount of $861.73.

It is so ordered.

Byrd, J., dissents.

      It developed that this information had been given to Mr. Wish by his son, who had in turn allegedly received the information from the Chevrolet company. The testimony was objected to, and of course, was inadmissible.

      When Dean was asked about the qualifications of Arendall, he replied, “He is the best.”

       In a footnote, the court further stated:
      “The Court also further explained to the attorneys for the Insurance Company the purport of his holding when he declared to them in the course of the instructions: ‘The Court has permitted the introduction of evidence as to what the fair market value of the plaintiff’s car was immediately before the collision and as to what the fair market value was immediately after the collision. The Court permitted the introduction of that evidence only for the jury’s consideration in determining the company’s liability under the provisions of the policy, as you have been instructed by other instructions herein. Such is not the measure of the defendant’s liability.’ ”

      The original estimate by Dean Chevrolet was in the amount of $1,366.73 and there is a dispute as to whether the adjuster ever approved this figure. This estimate included a new frame and the labor to install same, but apparently after settlement negotiations between the company and appellee failed and Arendall said that the frame could be repaired, the cost of repairs was reduced by. the amount necessary for a new frame and the labor, to the cost of repairing the frame on the car. Of course, even if this figure had been allowed by the court, the court’s judgment would still have been erroneous.


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    JACK MORGAN CONSTRUCTION COMPANY, Inc., et al v. John W. LARKAN
    73-58
    496 S.W. 2d 431
    Opinion delivered July 9, 1973

      Cockrill, Laser, McGehee, Sharp if Boswell and Smith, Williams, Friday, Eldredge if Clark, by: William H. Sutton, for appellants.

      Sam Robinson and Fulk, Lovett if Mayes, for appellee.
   George Rose Smith, Justice.

This multiparty case began as an action for wrongful death filed by the administratrix of the estate of Ronnie C. Harris. The two appellants (defendants below), Jack Morgan Construction Company and Nuclear Corporation of America, filed cross-complaints seeking contribution and, in Morgan’s case, indemnity from the appellee, John W. Larkan, a third-party defendant. Larkan responded with a motion for summary judgment, upon the ground that there was no genuine issue of fact upon which he could be found to be liable to Morgan or to Nuclear. This appeal tests the correctness of the summary judgment entered by the trial court in Larkan’s favor.

Harris, the decedent, was an ironworker employed in the construction of a building in Stuttgart at the time of his accidental death. The Morgan company was the prime contractor for the construction project. Harris was employed by J. Albert Erection Company — a corporation holding a subcontract for the ironwork. Nuclear was the fabricator of certain steel joists that were involved in the fatal accident. Larkan was the president and manager of the corporate subcontractor — a family corporation wholly owned by Larkan and his wife.

According to the complaint, Harris was working some 25 feet above a concrete floor at the construction site. Steel joists had been placed at that height without having been welded together. A crane was used to place heavy bundles of decking upon the joists. The weight of the decking broke or shifted the joists, causing Harris to fall to his death.

The complaint charged various acts of negligence to Morgan and Nuclear, together with breaches of warranty by Nuclear. Morgan and Nuclear denied having been at fault and by cross-complaint asserted negligence on the part of Larkan in personally supervising and directing that part of the work that resulted in Harris’s death. Both Morgan and Nuclear sought contribution from Larkan toward the payment of any judgment that might be rendered against them. Morgan also sought complete indemnity from Larkan. The issue of contribution and the issue of indemnity involve different principles of law and must be discussed separately.

Contribution. Larkan, in resisting the appellants’ claims for contribution, contends that he was Harris’s employer and is therefore protected from tort liability by the exclusive-remedy provisions of the workmen’s compensation law. Ark. Stat. Ann. § 81-1304 (Repl. 1960). The appellants tacitly admit the general rule that an employer whose concurring negligence contributes to his employee’s injury cannot be held liable for contribution as a joint tortfeasor, the statutory remedy being exclusive. Larson, Workmen’s Compensation, § 76.21 (1970). The appellants ipsist, however, that Larkan as an individual cannot invoke the protection of the statute, because Harris’s employer was the corporation, J. Albert Erection Company.

That argument must be rejected, on the basis of our decision in Neal v. Oliver, 246 Ark. 377, 438 S.W. 2d 313 (1969). There Oliver and his wife and son were the sole owners of a family corporation operating a laundry. Oliver was the active manager of the laundry. An employee sued him for personal injuries assertedly resulting from his negligence in assigning her to work on an unsafe machine and in failing to provide a protective device required by the state safety code. After reviewing the authorities we concluded that the action was precluded by the exclusive-remedy section of the compensation law, because “Mr. and Mrs. Oliver owned the corporate business and they, as well as the corporation, were the employers.”

The appellants seek to distinguish the Neal case on the ground that there Oliver was not present when the employee was injured, while here Larkan was supervising and directing the construction work at the time of Harris’s fatal accident. In both cases, however, the complaint was based upon negligence on the part of the individual defendant. Moreover, the basis for Oliver’s freedom from liability in the earlier case was his status as an employer who had complied with the workmen’s compensation law. Here Larkan stands in the same position and is therefore similarly free from liability.'

Indemnity. The Morgan company, in the following paragraph in its cross-complaint against Larkan, asserted its claim to indemnity:

That by reason of the active negligence on the part of John W. Larkan this defendant has or may be exposed to a liability to plaintiff not based on this defendant’s own active fault, so that in the alternative this defendant should have judgment for indemnity over against John W. Larkan in the full amount of any judgment rendered against this defendant.

The foregoing paragraph fails to state a cause of action, because it alleges no separate obligation running from Larkan to Morgan. Professor Larson, after pointing out that such a distinct duty may arise either by contract or by a special relation between the parties, goes on to say that otherwise the duty does not exist:

In summary: when the relation between the parties involves no contract or special relation capable of carrying with it an implied obligation to indemnify, the basic exclusiveness rule generally cannot be defeated by dressing the remedy itself in contractual clothes, such as indemnity, since what governs is not the delictual or contractual form of the remedy, but the question: is the claim “on account of” the injury, or on account of a separate obligation running from the employer to the third party? Larson, supra, § 76.44.

The rule was stated by Judge Learned Hand in Marra Bros., Inc. v. Wm. Spencer & Son Corp., 186 F. 2d 134 (2d Cir., 1951), with the explanation that if one of the parties (here Larkan) is not liable to the workman, then that party’s liability for indemnity must arise from some other transaction between the two. Judge Hand summarized the law in these words:

[W]e shall assume that, when the indemnitor and indemnitee are both liable to the injured person, it is the law of New Jersey that, regardless of any other relation between them, the difference in gravity of their faults may be great enough to throw the whole loss upon one. We cannot, however, agree that that result is rationally possible except upon the assumption that both parties are liable to the same person for the joint wrong. If so, when one of the two is not so liable, the right of the other to indemnity must be found in rights and liabilities arising out of some other legal transaction between the two.

Morgan relies upon our decision in Oaklawn Jockey Club v. Pickens-Bond, Constr. Co., 251 Ark. 1100, 477 S.W. 2d 477 (1972), but there, in quoting from an Illinois case, we recognized the requirement that an independent duty exist: “Plaintiff does not sue for damages ‘on account of’ Haviland’s death. Plaintiff asserts its own right of recovery for breach of an alleged independent duty or obligation owed to it by the defendant. ... An independent duty or obligation owed by the employer to the third party is a sufficient basis for the action.”

In the case at bar the paragraph that we have quoted from Morgan’s cross-complaint states no independent duty owed by Larkan to Morgan from which an obligation to indemnify might arise. Morgan, however, suggests in its brief two theories upon which its pleading may be deemed sufficient:

First, it is argued that Larkan’s proper course was to file a motion to make more definite and certain rather than a demurrer or motion for summary judgment. The difficulty is that a motion to make more definite and certain, calling for a bill of particulars, is not required when the complaint fails to state a cause of action. As the court said in People v. Corcillo, 88 N.Y.S. 2d 534, 195 Misc. 198 (1949): “The defendants are not required to demand and obtain a bill of particulars in order to determine whether or not a cause of action is álleged against them. A bill of particulars may be had to amplify a complaint, if it states a cause of action. It is not its office to supply the allegations necessary to state a cause of action. That is the office of the complaint.”

Secondly, it is argued that the duty to indemnify should be implied from certain provisions in the subcontract between Morgan and J. Albert Erection Company, by which the latter agreed to provide for the safety of its employees, to comply with applicable safety codes, etc. That contract, however, was between Morgan and the subcontracting corporation; so on its face it imposed no duties on Larkan.

Morgan, to surmount that obstacle, argues that since Larkan disregards the corporate entity in claiming to have been an employer of Harris, he cannot interpose the corporate entity in disclaiming personal responsibility for the performance of the subcontract. We are unwilling to extend the reasoning of the Neal case, supra, to that extent. In Neal the corporate entity was not disregarded, as it is when the privilege of transacting business in corporate form has been illegally abused to the injury of a third person. Rounds & Porter Lbr. Co. v. Burns, 216 Ark. 288, 225 S.W. 2d 1 (1949). Instead, we said in Neal that the Olivers as well as the corporation were the employers. In the present case Morgan elected to contract with the corporation rather than with Larkan as an individual. We are not persuaded that Larkan’s status as an employer under the compensation law, with respect to tort law, requires that he also be made a party to the subcontract, with respect to contract law. Certainly it cannot be said in this case, as it was in Rounds & Porter, that Larkan illegally abused the privilege of transacting business in corporate form.

Affirmed.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I dissent, largely because of the views I expressed in Neal v. O liver, 246 Ark. 377, 438 S.W. 2d 313. Since a statutory construction was involved in that case, I would normally abandon the position I took there. This case, however, demonstrates additional reasons why the holding in Neal v. Oliver is wrong, and points to the need for legislative definition of “third party” in Ark. Stat. Ann. § 81-1340 (Repl. 1960). In that case, the basic negligence was in the assignment of the injured worker to the use of a machine on which the employer had not installed a safety bar. The president of the corporation there was granted the privilege of piercing his own corporate veil to seek refuge from an action against him as a third party, by permitting him to call himself the employer. In this case, however, Larkan was alleged to have been in active charge of the work and actually supervising and directing the operation during which Harris suffered his fatal injuries. But the most glaring manifestation that something is wrong is that Larkan is judicially licensed to run a virtual shell game, utilizing his self-manufactured corporate veil. When both contribution and indemnity are sought in the same lawsuit, Larkan is the corporation when the victim of the game points to contribution, but is a different entity when he chooses indemnity. This result is unnecessary. The corporate entity cannot be disregarded for one advantage and claimed for an inconsistent advantage. 1 Fletcher, Cyclopedia Corporations 182, § 41.2 (1963 rev. vol.). No more gross example of inconsistency could be found than Larkan’s simultaneous contentions that he and the corporation are both separate and identical entities. I would reverse the summary judgment.


author: Lyle Brown, Justice.

text:
    Patrick M. MAYNARD v. STATE of Arkansas
    CR 73-61
    496 S.W. 2d 427
    Opinion delivered July 9, 1973

      William C. McArthur, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Charles A. Banks, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant was convicted of robbery and on appeal the conviction was affirmed. Thereafter we granted appellant permission to proceed in the trial court under Rule I. That hearing was restricted to two points, (1) that he was denied compulsory process for his witnesses, and (2) that he was refused the right to testify.

Before discussing the two recited points, we will dispose of appellant’s charge that the Rule I hearing did not meet the basic requirements of due process because his subpoenaed witnesses were unduly restricted and the judge conducting the hearing was prejudiced against appellant. Neither allegation has merit. Appellant subpoenaed a host of witnesses, so many as to cause the court to inquire of the nature of their testimony. Appellant replied that the witnesses would testify that they were present at the trial and heard certain remarks by the court and his counsel which would establish that the court was prejudiced against him at the time. In the first place, that allegation was not included in the two items which this court enumerated to be developed at the Rule I hearing. The court therefore did not abuse its discretion in denying appellant the right to call the witnesses. In the second place, the court categorically denied having made the statement attributed to him, and the trial judge was corroborated by appellant’s trial counsel.

Appellant’s next complaint is that he was denied compulsory process for his trial witnesses. After hearing the testimony of two witnesses called by appellant, a court clerk and a deputy sheriff, appellant’s counsel agreed that insofar as the records disclosed, there were no requests for defense witnesses which were refused. Attorney Floyd Lofton, called by appellant as a witness at the Rule I hearing, testified unequivocally that appellant was not denied any witness. Mr. Lofton represented appellant in the trial of the case.

Nor do we find any merit in petitioner’s allegation that he was refused the right to testify at the trial. Attorney Lofton testified “that Mr. Maynard expressly in writing approved of every step arid phase of the trial as it was conducted. Including his not wanting to testify . . . He also approved and made no objections to the list of witnesses that were subpoenaed”. Petitioner did not testify at the Rule I hearing. He candidly stated that “the only thing I’m interested in is exhausting the state remedies at this time”.

Affirmed.


author: John A. Fogleman, Justice.

text:
    PHILLIPS PETROLEUM COMPANY v. Richard R. HEATH, Director, Department of Finance and Administration
    73-66
    497 S.W. 2d 30
    Opinion delivered July 9, 1973

      William S. Mitchell, Lloyd G. Minter, Kenneth Heady and Charles E. Daniels, for appellant.

      Walter Skelton, Karl Glass and /. B. Nash, for appellee.
   John A. Fogleman, Justice.

This appeal involves the construction of the severance tax act. See Ark. Stat. Ann. § 84-2101, et seq. (Repl. 1960). The chancery court held that the tax levied by the act applied to oil produced by appellant and consumed by it in a recovery procedure by which it injected steam into the producing sands in its unit for the purpose of raising both temperature and pressure, thereby substantially increasing the crude oil production from its wells. We agree with the chancellor’s conclusion.

Phillips Petroleum Company is engaged in exploring for, producing, refining and marketing oil and oil products. It is burning a part of the oil produced by it to generate the steam injected into the earth at the level of its oil-producing sands for the purpose of reducing the viscosity and improving the flow of oil into its wells. It brought this action to recover its payments of severance taxes on the oil so utilized made under protest and for a judgment declaring that oil hereafter used for these purposes is not subject to the tax. Appellant asserted in the trial court that this oil was not severed because it is not produced for commercial purposes.

The oil produced from appellant’s wells is pumped into a storage tank, from which it is either sold to a purchaser or returned to a fuel storage tank from which the steam generator is supplied. Although the unit agreement under which appellant was operating permitted it to use crude oil, Phillips pays royalty on the oil burned in the operation. An auditor for the Arkansas Department of Finance and Administration testified that the tax collected was based on reports of sales filed by Phillips which included the oil burned, and broken down to show the quantity sold and the quantity burned. He said that the tax was to be paid at the time the oil left the storage tank.

Phillips states that it is not claiming an exemption from the tax for the oil burned, but does claim that the tax does not apply to it, and that any uncertainty about the application of the tax must be resolved in its favor. It relies principally upon the case of McLeod v. Kansas City Southern Ry. Co., 206 Ark. 281, 175 S.W. 2d 391, where we held that gravel mined by a railroad company and used by it for ballast on its tracks was not subject to tax. But we did not hold in McLeod that the tax did not apply because of the use to which the gravel was put. We held that the tax, being a privilege tax or occupation tax levied on all engaged in the business of severing natural resources for commercial purposes, did not apply because the railroad company was not engaged in that occupation. The tax is specifically levied upon “each producer of natural resources.” The railroad company was not. Appellant admittedly is. McLeod has no application to this case.

The tax is levied upon the quantity of oil “severed” at the rate of 5% of the “market value at time and point of severance.” Ark. Stat. Ann. § 84-2102. “Sever” is defined by statute to mean “natufal resources cut, mined, dredged, or otherwise taken or removed, for commercial purposes, from the soil or water,” but does not apply to natural gas returned to any formation, in repressuring, pressure maintenance operation or other operation for the production of oil or any other liquid hydrocarbon. Ark. Stat. Ann. § 84-2101(e). The “time of severance” is defined as the date upon which transportation of natural resources has been or is about to be commenced for their use or processing after having been severed. Ark. Stat. Ann. § 84-2101(e). The “point of severance” is defined as the place where transportation of natural resources has been or is about to be commenced for use or processing after their having been severed. § 84-2101(d). It seems quite clear to us that, when the oil reached the storage tank, transportation was about to be commenced for its use, either by appellant for fuel or to the market for sale.

Appellant contends, however that the oil used to produce steam is not severed for commercial purposes, arguing that consumption of the oil by it is not a commercial purpose because it is not sold or traded. It takes the position that a severance is not for commercial purposes unless the product is actually sold or placed on the market. We do not think that the General Assembly had any such narrow definition in view, nor do we find such a narrow construction of the words “commercial purposes” to be consonant with the legislative purpose and intent evidenced by other provisions of the act and by other legislative action. Neither do we take the holdings in McLeod v. Kansas City Southern Ry. Co., supra, Floyd v. Miller Lumber Co., supra, and Miller Lumber Co. v. Floyd, supra, to turn upon the fact that the resources involved were or were not disposed of on the market. The determinative factor in those cases was the business in, which the concerns from whom collection was sought were engaged. The same distinction also applies to Scurlock v. Greene County, 225 Ark. 507, 266 S.W. 2d 811. The question, of course, in those cases was not the use made of the products, as appellant suggests; it was the primary business of either concern involved. If the railroad company had engaged in the marketing of the products as a secondary business or even incidental to its primary business, a different question might well have been posed.

We are inclined to believe that the legislature had a broader definition in view# and that the proper approach to determine the meaning to be given to these words is similar to that taken to arrive at the meaning of the same words by the Supreme Court of Utah in Beard v. Board of Education of North Summit School Dist., 81 Utah 51, 16 P. 2d 900 (1952). In construing statutes in the absence of any indication of a different legislative intent, we give words their ordinary and usually accepted meaning in common language. Kaiser v. Price-Fewell, Inc., 235 Ark. 295, 559 S.W. 2d 449, cert. denied, 371 U.S. 955, 85 S. Ct. 511, 9 L. Ed. 2d 501 (1962); City of Fort Smith v. Hairston, 196 Ark. 1005, 120 S.W. 2d 689. B.y resort to Webster’s New International Dictionary, the Utah court found that the common dictionary meaning of the words was in harmony with the definitions accorded them in the decided cases. The dictionary definition of a commercial purpose might be stated as an objective, end, operation, design or intention pertaining to the exchange or buying and selling of commodities, and particularly the exchange of merchandise on a large scale between different places and communities. TheBeard court found that, by application of this definition, other courts had found that the words encompassed more than the buying, selling and exchanging of commodities, and that the transportation of merchandise from one place to another was included within their scope as well as the idea that trade and commerce require the transfer of persons, commodities, or intelligence from one place or person to another. While quite a different problem was presented in Beard, the court found that the very words we are considering had a broader meaning than appellant would have us give them.

The first indication that the General Assembly did not intend that sale be the only commercial purpose contemplated appears in its use of the expression “sale, commercial gain or profit” in its obvious reaction to the McLeod decision by the proviso in Section 2 of Act 136 of 1947. See Ark. Stat. Ann. § 84-2102(h). We ourselves have evidenced our feeling that sale was not the exclusive commercial purpose envisioned in Scurlock v. Greene County, 223 Ark. 507, 266 S.W. 2d 811, when we emphasized that the county severed gravel for use of its highways and “not for sale or other commercial purpose.”

If we follow the meaning we arrive at by analysis of dictionary definitions and if the oil in question was extracted from the soil with an objective, design and intention pertaining to the exchange or selling of a commodity (oil), then there was a severance. This was certainly the purpose of the extraction of the oil in question and its utilization to produce more oil from the earth is in fulfillment of that objective. The legislative intent that the products used by a producer such as appellant for the purpose of increasing its production in the manner utilized by appellant may be illustrated in several ways. The tax is calculated on the “market value” of the product, not its selling price. And then, the proviso incorporated into the act for the purpose of exempting such severers of natural resources as use them for their own purposes, but not for “sale, commercial gain or profit” states that the tax does not apply to an individual who occasionally severs natural resources from his own premises to be utilized by him in the construction, repair or maintenance of his own structures or improvements. There is a further provision that the act does not apply to the producer of resources severed for the purpose of incorporation into a structure used in connection with any commercial business of the producer. Appellant is not contending that it comes within either of the above categories or that it was favored by a tax exemption. The point is that the act must be construed to have applied to the exempted producers or production in the absence of the provisos. The legislature will not be presumed to have done a vain and useless thing. Quite the opposite is true. Wells, Fargo and Company’s Express v. Crawford County, 63 Ark. 576, 40 S.W. 710, 37 L.R.A. 371; 2 Horack’s Sutherland, Statutory Construction, 327, § 4510; 50 Am. Jur. 358, § 357; 82 C.J.S. 551, Statutes, § 316. See Henderson v. Gladish, 198 Ark. 217, 128 S.W. 2d 257; 82 C.J.S. 652, Statutes, § 329. If, in the absence of these stated exemptions, the producers favored by them would have been liable for the tax, it seems clear to us that appellant is liable for the tax it seeks to avoid here in the absence of an exemption in its favor.

The significance of the omission of a specific exemption favoring appellant is magnified by two other factors, i.e., the exclusion from the definition of “sever” of natural gas returned to a formation in répressuring, pressure maintenance or other operation for production of oil and the subsequent legislative grant, by Act 493 of 1973, of an exemption to those engaged in such an operation as that being conducted by appellant. If the legislature had not considered the burning of oil to produce steam or other uses of oil in other methods of repressuring or pressure maintenance to constitute a severance, it would have broadened the exclusion from its definition to include such operations.

Our construction of the basic act is fortified by the passage of Act 493 of 1973, which exempted the products used by appellants, and others, in the manner involved here. Here again, we must presume that the General Assembly did not intend to purposelessly pass an act, so the act must be taken as indicative of a previous legislative intent that the oil burned by appellant in its recovery processes be subject to the tax. Legislative intent is to be determined by a consideration of all legislation— prior, contemporaneous and subsequent — on the subject. In LaFargue v. Waggoner, 189 Ark. 757, 75 S.W. 2d 235, we adopted and applied the principles then aptly stated at 59 C. J. 1042, which include the following:

The endeavor should be made, by tracing the history of legislation on the subject, to ascertain the uniform and consistent purpose of the legislature, or to discover how the policy of the legislature with reference to the subject matter has been changed or modified from time to time. In other words, in determining the meaning of a particular statute, resort may be had to the established policy of the legislature as disclosed by a general course of legislation. With this purpose in view therefore it is proper to consider, not only acts passed at the same session of the legislature, but also acts passed at prior and subsequent sessions, and even those which have expired or have been repealed.

We are not impressed by appellant’s arguments that the requirements of § 84-2105 that the producer collect or withhold from the proceeds of sale of natural resources the tax due by the respective owners of the resources at the time of severance and the requirement by § 84-2107 of reports from those who purchase natural resources from producers are a clear indication that the legislature intended that the tax only apply to sales. The first section simply permits the producer to distribute the tax burden proportionately among owners of the resources sold. The latter one is simply a means of enforcement of the collection of the tax.

If the legislature had meant for, the tax to be paid only on the products sold or exchanged or produced for sale or exchange, it could have said so in simple words and minimized the necessity for definition of terms.

The decree is affirmed.

Byrd, J., dissents.

      See Floyd v. Miller Lumber Co., 160 Ark. 17, 254 S.W. 450, 32 A.L.R. 811; Miller Lumber Co. v. Floyd, 169 Ark. 473, 275 S.W. 741, aff’d, 273 U.S. 672, 47 S. Ct. 475, 71 L. Ed. 832 (1926).

      ActuaIly the Miller Lumber Company cases themselves are somewhat indicative of a different view because all the lumber companies involved were manufacturing lumber and other finished products,' and considered the severance of timber only as an incidental step in the process.


text:
    Ira Coleman ROBERTS v. STATE of Arkansas
    CR 73-20
    497 S.W. 2d 666
    Opinion delivered July 9, 1973
    [Rehearing denied August 27, 1973.]

      Tackett, Moore, Dowd & Harrelson and James T. Gooch, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Charles A. Banks, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

This appeal comes from the conviction of Ira Coleman Roberts of the crime of grand larceny. Since one of his points for reversal is the contention that the evidence is not sufficient to support the verdict, we will state the evidence in the light most favorable to the state. The state’s evidence was virtually uncontradicted.

The prosecuting witnesses in this case, James Peacock and Charles Peacock, are prosperous farmers from the vicinity of McCrory, Arkansas. They not only had farming operations, but also engaged in various other related and unrelated activities such as purchasing wet grain and operating a salvage business. Sometime in 1970 or 1971 Charles Peacock began having dealings with a man known to him as Bill Taylor, whose photograph was later identified as being that of Marshall May Powell. Taylor expressed interest in and knowledge about the Peacocks’ grain storage facilities, and in June of 1971 the Peacocks said that he informed them that he could introduce them to individuals in Texarkana, Arkansas, who had large quantities of “wet grain” to sell for amounts substantially less than the prevailing market rate. However, Taylor told them that these individuals would deal only in cash. Based on this information, the Peacocks withdrew $50,000 in $100 bills, in spite of the suggestion of the two bankers from whom they obtained the money that they use cashier’s checks. They proceeded to Texarkana, Arkansas, on June 2, 1971, where they met Taylor and appellant Roberts, who was introduced to them as “Doc” Wilson, at about 9:00 a.m. at a motel. In the introduction, Wilson was described as an associate who had been working with Taylor. The Peacocks said their journey left them extremely tired, so Taylor suggested they have a cup of coffee and invited them to a table already set up with a pot of coffee. At that time, Jim Peacock had $20,000 in his shirt and $50,000 was in Charles Peacock’s boots. $5,000 was left under the seat of their car. Roberts then went to the motel office to register for rooms because, he said, they might be there for some time. It was shown that Roberts procured two rooms, one in the name of George E. Wilson, and one in the name of Eddie Driver, an employee of the Peacocks who accompanied them to Texarkana in a separate vehicle. Roberts (Wilson) then rejoined the Peacocks and Taylor in the cafe. Taylor did not drink any of the coffee. After finishing their coffee, the Peacocks became very sleepy and wanted to lie down and rest. Taylor offered them his room, the one which Wilson (Roberts) had just reserved, and all four went to that room. Appellant sent Driver to the other room, suggesting that he take a nap. Jim Peacock testified that after entering the room he and the elder Peacock lay on the two beds. He said that he felt real drowsy, carefree and irresponsible, and that, in walking, he felt like he was floating. He also testified that he remembers seeing appellant “kind of petting my dad and feeling sorry for him,” and saying, “Mr. Peacock, take it easy and relax.” Charles Peacock testified similarly, and added that appellant helped him take off his boots. When the two Peacocks went to sleep, Charles still had the $30,000 in $100 bills in his boots and his car keys in his pocket, and Jim had $20,000 in $100 bills in his shirt. Upon awakening some four hours later, Jim Peacock, finding his shirt unbuttoned and money gone, awakened his father. They discovered that not only had Taylor and Wilson departed, but all their money was also missing and someone had left some aluminum pans, a wooden press, a quantity of paper, some of which had been cut to the size of currency, a black suitcase, and other paraphernalia in the room. Wet hotel towels were on the floor. Also, both Peacocks sensed a distinct odor characterized as being like “creosote dip.” The Peacock car keys were on a table in the room.

When the Peacocks arrived at the motel, the elder Peacock parked their car next to the automobile Taylor had been driving when he came to the Peacock farm. Taylor was present and supervised the re-parking of the Peacock vehicle because Charles Peacock had parked without regard to the parking guidelines. Charles Peacock locked the car when he got out of it. It was locked after the disappearance of Taylor (Powell), Wilson (Roberts) and the Peacock currency. The Taylor vehicle had also disappeared.

An investigating police officer described the memory of the Peacocks as “very blurry” when he first interviewed them after they had given the alarm upon discovering the disappearance of Taylor and Wilson and their money. Appellant offered only two witnesses. One of them was a motel employee, who said that Charles Peacock had told her he did not want his room cleaned because he did not want to be disturbed in doing some paper work. He also asked her for some extra towels. A waitress testified that when the elder Peacock ordered sandwiches he smelled like creosote.

Appellant alleges only two points as error. We find no reversible error. Appellant first contends that the use by the state of a photograph of one Marshall May Powell was reversible error. The photograph was used by the prosecution to establish the true identity of Bill Taylor and to connect the appellant with the other party to the alleged crime. Both Charles and Jim Peacock identified the person photographed as Bill Taylor and appellant as “Doc” Wilson. Eddie Driver also said that the photograph was of Bill Taylor. It served to show that both Powell and his alleged confederate were using fictitious or assumed names in their dealings with the Peacocks. Appellant takes issue with the fact that the state did not formally introduce this photograph into evidence, and argues that it was irrelevant. No objection was made to the identification of Bill Taylor made by the two Peacocks and Driver or to the testimony of two police officers who said that the man was actually Marshall May Powell. We do not see how this failure prejudiced the appellant in any way. Even if the photograph had been admitted and was irrelevant, the appellant has not demonstrated how he was prejudiced either by the state’s failure to introduce it or by its claimed irrelevancy. The only suggestion of prejudice was that the testimony showed that the individual pictured was well known by the Arkansas State Police. There was no evidence to show how the officers became acquainted with this person, and we do not find any implication that these officers were acquainted only with criminals. Also, when the photograph was identified by the last witness for the prosecution, the appellant was apparently asked if he wanted it introduced. The record is silent as to any response by the appellant.

Appellant’s other contention is that the yerdict is not supported by substantial evidence. With this we also cannot agree. While the evidence was basically circumstantial, the recitation of the facts as gleaned from the testimony of the Peacocks is sufficient. The appellant was placed at the scene of the crime; his companion knew where the Peacock vehicle was parked; he was shown to have possession of the elder Peacock’s boots which contained part of the stolen money; he took care to exclude Driver from the coffee table and the motel room where the Peacocks were; the use of aliases and the permissible inference that the coffee was “spiked,” and the virtual exclusiveness of the opportunity of appellant and Taylor to commit the theft, and the disappearance of the money, Powell, Roberts and the Powell car during the time the Peacocks were soundly napping were all circumstances from which the jury could have concluded that appellant was a participant in the crime. Circumstantial evidence is sufficient to support a criminal conviction. Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822; Lancaster v. State, 204 Ark. 176, 161 S.W. 2d 201. The circumstances here meet the test as we have previously applied it. See Dolphus v. State, 248 Ark. 799, 454 S.W. 2d 88; Lancaster v. State, supra; Jefferson v. State, 89 Ark. 129, 115 S.W. 1140.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    John W. BIRD v. Oma L. BIRD et al
    73-7
    497 S.W. 2d 659
    Opinion delivered July 9, 1973
    [Rehearing denied August 27, 1973.]

      Kenneth C. Coffelt, for appellant.

      Joe Purcell, Ben McCray, and Moses, McClellan, Arnold, Owen & McDermott, for appellees.
   J. Fred Jones, Justice.

This is an appeal by John an adverse chancery court decree on a petition he filed against Oma L. Bird and Mr. and Mrs. Voyles and counter petitions they filed against him for confirmation of title to two 40 acre tracts of land.

The two contiguous 40 acre tracts are identified by legal description in the pleadings but for convenience they were designated as tract Nos. 1 and 2 in the pleadings and will be so designated here. The appellee Oma L. Bird is the widow of Judson E. Bird who was a brother of the appellant, John W. Bird, and the appellees Mr. and Mrs. Voyles are grantees in possession of the lands here involved under a deed from Judson prior to his death' in 1971. The appellant John Bird has been living in the state of Michigan for many years, while Judson continued to live on the land here involved. Judson acquired record title to tract No. 1 by corporate deed from a railroad company in 1920 and John acquired record title to tract No.- 2 by warranty deed from his parents in 1929. Tract No. 1 was sold to the state for the nonpayment of the 1935 taxes while assessed in Judson’s name. Tract No. 2 was sold to the state for the nonpayment of the 1934 taxes while assessed in John’s name. John acquired a state deed to tract No. 1 in 1937 but held it from record until a duplicate was filed on September 15, 1971 (two days after his complaint was filed). Judson acquired a state deed to tract No. 2 in 1938 and held it from record until it was filed on March 22, 1966, approximately one month before he conveyed the property to appellee Voyles as hereafter noted.

Judson built a house on a plot of ground 208' by 300' in tract No. 2 and lived in the house for a number of years during which time he rented the remainder of both tracts to a Mr. Scott who pastured the land. In April, 1966, Judson sold both tracts except the house plot to the appellees T. O. and Gertrude Voyles and retained a lien for the balance of purchase price. On the same date he also executed an option deed to Mr. and Mrs. Voyles on the house plot. Judson died testate about January, 1971, and the appellee Oma Bird claims Judson’s interest in the land and proceeds from its sale as widow and as sole beneficiary under his will.

On September 13, 1971, John filed his petition herein against Oma Bird and Mr. and Mrs. Voyles alleging ownership in all the land. He alleged ownership of tract No. 1 by virtue of the state deed and ownership of tract No. 2 by virtue of his record title. He prayed that title be confirmed in him and that the deeds to Voyles be canceled. Mrs. Oma Bird and Mr. and Mrs. Voyles answered by general denial and plea of statute of limitations. By counterclaim they alleged title to tract No. 1 by deed record title, and alleged title to tract No. 2 by color of title under the state deed and adverse possession. John answered the counterclaim by alleged payment of taxes and permissive use of the land by Judson.

At the trial of the case, after preliminary motions, including one for summary judgment were disposed of, John Bird deraigned his title as above set out and testified in substance that he had claimed title to the property from thé dates of his deeds, and that everyone knew he was claiming title to the property. He said he had permitted Judson to live on the property and had no knowledge that Judson was claiming the land, or had attempted to sell it, until he received a quitclaim deed with request that he execute it, from Oma’s attorney in February, 1971, after Judson’s death. He said he had authorized Judson to build and occupy the house on tract No. 2; that he had authorized and permitted Judson to rent the property to Scott through the years and had paid the taxes on the property by authorizing and directing Judson to pay the taxes out of the rent money paid by Scott. He said he had no knowledge that Judson was assessing the property in his own name.

Mr. Milton Scott and Mr. Lilburn Kirkpatrick had made affidavits pertaining to possession of the land in connection with the motion for summary judgment filed on behalf of Mr. and Mrs. Voyles and they were called as witnesses on cross-examination by the appellant’s attorney at the trial. Mr. Scott testified that he had rented the property involved from Judson for approximately 20 years and that Judson was in exclusive possession of the property during that tíme. He said he had no knowledge of who actually owned the property, but that Judson had the reputation in the community of being the sole owner of the property. He said he never did know of anyone claiming any ownership in the property other than Judson. Mr. Kirkpatrick testified that he built a pond on his own land adjacent to the property here involved and obtained a written release from Judson for any damages that might be sustained to the land here involved by reason of overflow from the pond. He testified that all the neighbors said that the property belonged to Judson; that Judson had always been in exclusive possession of the properties and he knew of no one else claiming title to it.

When Mr. Kirkpatrick finished testifying, appellee Voyles moved for a directed verdict because the. appellant had not met his burden of proof of ownership , by preponderance of the evidence. The motion was vigorously resisted by the appellant and it was pointed out that as the record then stood, the appellant had proved record title; that the affidavits of Scott and Kirkpatrick stated in effect that they did not know who owned the property and that the evidence as it then stood, was to the effect that the appellant had paid the taxes through the yéars through an arrangement with Judson Bird. The chancellor granted the motion on findings as follows:

“The court is going to direct a verdict. The testimony here this morning is — giving it its greatest weight— is still — the testimony is that they sent money, or that the income from the property should have paid the taxes but there is no receipts, no — nothing other than his word that they sent money in the record. The man’s been in possession out there for better than thirty (30) years and has sold property, and operated it like it was his own. The court will direct a verdict in favor of the defendant.”

The appellant contends that the trial court erred in abruptly concluding the case before the appellant had rested, but we cannot say from the record before us, that the chancellor erred in this regard. After the appellant had presented his primary evidence, he called the two affiants whose affidavits were submitted in support of the appellees’ motion for summary judgment and proceeded to cross-examine them. Mr. Kirkpatrick was examined last. He was questioned first by the appellant on cross-examination and then by the appellees, and at the close of his testimony the attorney for the appellees inquired if the witness might be excused and die attorney for the appellant stated: “That’s all . . . he can as far as we’re concerned.” The chancellor then excused the witness and the record simply recites: “No further testimony was offered.” We agree that the record would be clearer had the chancellor inquired as to whether the appellant had other evidence he wished to offer, but if the appellant did have additional evidence he desired to offer, it would have been a small matter for him to so advise the chancellor.

The appellant’s remaining, points relied on as set out in his brief are to the effect that the chancellor’s decree was contrary to the weight of evidence; that the only competent evidence was that offered by the appellant, and his supporting witnesses; that the court erred in refusing to permit a witness to testify as to the date of death of the grantor of one of the parties and that this court should enter judgment here in favor of the appellant, particularly as to tract No. 2 on the basis of the appellant’s warranty deed from his parents.

We do not discuss these points specifically for we find that we must reverse the decree in this case for another reason. We find no error in the chancellor’s decree as to tract No. 1 because there is substantial evidence that Judson Bird owned record title to this tract from the time he purchased it from the railroad in 1920 until he sold it to Voyles. He apparently retained uninterrupted possession of it at all times and his sister who testified for the appellant said it belonged to him and there is no substantial evidence to the contrary. Furthermore, it is apparent from the appellant’s brief that he abandoned any claim to tract No. 1 under the deed he obtained from the state and filed for record after he filed his petition in this case. He does not contend that he ever had actual possession of any of the land.

As to tract No. 2, we are of the opinion that this case is controlled by our decision in Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225. The appellees’ motion was obviously granted under Ark. Stat. Ann. § 27-1729 (Repl. 1962) which provides as follows:

“Upon the closing of plaintiff’s or moving party’s proof and an announcement by plaintiff or moving party to that effect, in any cause now pending or hereafter filed in any court of chancery in this state, the defendant, or defendants, may file a written motion challenging the sufficiency of the evidence to warrant the Court to grant the relief prayed for on the record existing. Thereupon, the chancellor shall consider and determine such motion; and if such motion be sustained, he shall thereupon dismiss the cause of action.
If the motion be sustained by the chancery court, and appeal is taken that the Supreme Court reverses the Lower Court, then the cause shall be remanded to the Lower Court for proof and development of the case by the party making the motion.
If the motion be overruled, then the party filing the motion may save exceptions and proceed to take proof or elect to stand on his motion, and appeal to the Supreme Court. In the event the motion is overruled and the party making it elects to stand on the motion and appeal to the Supreme Court and the Lower Court’s action in overruling the motion be affirmed, it shall constitute a final judgment in the case.”

In Werbe v. Holt, supra, this court said:

“When the defendant in an equity or probate case asks for judgment at the close of the plaintiff’s testimony, should the trial judge view the evidence in the light most favorable to the plaintiff to determine whether a prima facie case has been made, or should he weigh the testimony to decide whether the plaintiff has proved his case by a preponderance of the evidence? In short, does a motion filed under Act 470 present an issue of law or of fact? In the case at bar this question is of primary importance, for the appellants’ proof was undoubtedly sufficient to raise a jury question had the suit been tried in a circuit court. But if the problem is where the preponderance lay, a much closer question is presented.
Forceful arguments are advanced to support each suggested construction of Act 470. For the appellee it is said that the trial judge must eventually weigh the evidence in any event; why should he not do so at the first opportunity? The appellants answer that reason and authority back their contention that the motion raises only an issue of law regarding the sufficiency of the plaintiff’s case.
After a painstaking study of this matter we are unanimously of the opinion that the motion presents a question of law and not of fact. The General Assembly evidently chose its language with care, and what the motion challenges is ‘the sufficiency of the evidence’ to warrant the relief prayed. The quoted phrase has a familiar legal meaning — a meaning that does not involve the weighing of evidence. For instance, it is often said that the defendant’s motion for a directed verdict in suits at law challenges ‘the sufficiency of the evidence’ to take the case to the jury. Here the legislature has used a phrase of well known legal signification, and it is presumed to have used the language in that sense. Fernwood Mining Co. v. Pluna, 138 Ark. 459, 213 S.W. 397.
W w 7r
What, then, is the effect of a demurrer to the evidence or a similar pleading in jurisdictions recognizing that practice? The question may arise either in equity cases, where the chancellor is the arbiter of the facts, or in cases tried at law without a jury where also the trial judge decides all issues of fact. By the overwhelming weight of authority it is the trial court’s duty, in passing upon either a demurrer to the evidence or a motion for judgment in law cases tried without a jury, to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence when so considered fails to make a prima facie case.”
In Cunningham v. Chamblin, 227 Ark. 389, 299 S.W. 2d 89, we also said:
“We have held that a motion by the defendant for a ‘directed verdict’ at the close of plaintiff’s proof in a chancery case may be treated as one challenging the sufficiency of the evidence under Ark. Stat. Ann. § 27-1729; and that the requirement that such motion be in writing may be waived by plaintiff’s failure to object on that ground. Thompson v. Murdock Acceptance Corp., 223 Ark. 483, 267 S.W. 2d 11; Karoley v. Reid, 223 Ark. 737, 269 S.W. 2d 322; It is also settled that, in passing on a demurrer to the evidence filed by a defendant under the statute, the chancellor must view the testimony in the light most favorable to the plaintiff, and if so viewed a prima facie case has been made then the demurrer should be overruled. Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225.”

Then in Rachel v. Johnson, 230 Ark. 1003, 328 S.W. 2d 87, we said:

“At the close of the plaintiff’s proof the chancellor sustained a demurrer to the evidence and dismissed the complaint. Under the rule adopted in Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225, the question is whether the plaintiff produced sufficient evidence to have made a case for the jury if the suit had been tried at law.”

It may be that the chancellor would have reached the same conclusion he did reach in this case had he overruled the appellees’ motion for a “directed verdict” at the close of the appellant’s case, and the appellees had offered only the testimony of Messrs. Scott and Kirkpatrick as affirmative evidence supporting their claim of adverse possession; but, in that event, we could have reviewed the chancellor’s decree along with the entire record de novo on appeal for a determination of whether the chancellor’s decree was against the preponderance of the evidence.

The decree is affirmed as to tract No. 1 but reversed as to tract No. 2 and remanded for further proceedings not inconsistent with this opinion as to tract No. 2.

Affirmed in part, reversed in part and remanded.

Byrd, J., not participating.