author: Paul Ward, Associate Justice.

text:
    Stewart v. State.
    5102
    375 S. W. 2d 804
    Opinion delivered March 2, 1964.
    [Rehearing denied March 30, 1964.]

      Harold B. Anderson and Edivard V. Trimble, for appellant.

      Bruce Bennett, Attorney General, By Beryl Anthony, Jr., Asst. Atty. Gen., for appellee.
   Paul Ward, Associate Justice.

Appellant, Clarence Stewart, Jr., was charged with the crime of murder in the first degree in the perpetration of burglary against William N. Caldwell on January 8, 1959. He was tried in Pulaski County, found guilty as charged, and sentenced to die by electrocution. On appeal to this Court the judgment was affirmed on April 17, 1961. See Stewart v. State, 233 Ark. 458, 345 S. W. 2d 472. Certiorari to the United States Supreme Court was denied on December 4, 1961. See Stewart v. State of Arkansas, 368 U. S. 935, 82 S. Ct. 371, 7 L. Ed. 2d 197. Following that, appellant, on February 5,1962, filed a petition in the United States District Court for the Eastern District of Arkansas, Western Division, for a writ of habeas corpus. On the same date an order was issued by that court to the Superintendent of the Arkansas State Penitentiary requiring him to show cause why the writ should not be granted.

The ensuing trial resultéd in the decision found in Clarence Stewart, Jr. v. Lee Henslee, Superintendent of Arkansas State Penitentiary, (decided June 12, 1962) 206 F. Supp. 137. In that opinion the court, after noting that the question of petitioner’s guilt was not an issue, said:

“We come, then to the question of whether members of petitioner’s race were deliberately and intentionally limited in the selection of petit jury panels.” [Meaning, of course, in the state court.]

The District Court then proceeded to compare nine separate sets of facts and circumstances to the same number of somewhat similar sets of facts set forth in the case of Luther Bailey v. Lee Henslee, Superintendent of the Arkansas State Penitentiary, 287 F. 2d 936. The Judge then concluded:

“I have come reluctantly to the conclusion, however, that the differences between this record and Bailey are not sufficient to avoid the same result reached in Bailey, that is, a determination that the procedure followed in Stewart’s trial in the method of jury selection does not measure up to the standards of the equal protection clause of the Fourteenth Amendment as interpreted by the United States Supreme Court.”

The above decision was appealed by Henslee to the United States Court of Appeals, Eighth Circuit, where it was affirmed on January 11, 1963. See: Lee Henslee, Superintendent of Arkansas State Penitentiary v. Clarence Stewart, Jr., 311 F. 2d 691 (1963). In affirming the District Court the Circuit Court of Appeals, in substance, found:

(a). There are four instances tending to show discrimination in this case and in the Bailey case. These are:

1. Absence of Negro names from the panel of alternates from 1952 to 1960.

2. During said period there were never more than 3 Negro names on any regular panel of 24.

3. Repetition of Negro names on the panels from 1953 to 1960.

4. Race identification on poll list from which jurors were selected.

(b). There are also four instances which indicate less discrimination in this case than was shown in the Bailey case. These related to the following:

1. Here there were 3 Negro names on the special panel of jurors.

2. Here there was no proof of discrimination in the Second and Third Divisions which try only civil cases.

3. Here there Avas no apparent partiality shoAAm in the composition of the special panel.

4. Here there Avas more helpful testimony from tAvo jury commissioners.

The Court then concluded (as in the Bailey case):

“ ‘The foregoing facts, taken in the aggregate, lead us to the conclusion that a prima facie case of limitation of members of the Negro race in the selection of this defendant’s petit jury panel was established, [and] that the State did not rebut it * * V ”

The Court then gave the State of Arkansas 120 days (Avitk the right to apply for additional time) to retry appellant.

In due time a trial was had in the Pulaski County Circuit Court, First Division, appellant Avas again found guilty, and again sentenced to die by electrocution.

On this the second appeal to this Court the sufficiency of the evidence is not questioned, so Ave proceed first to discuss the three principal points raised by appellant— One. Discrimination in selection of the jury; Two. Discrimination in selecting the jury commissioners; and/ Three. The Confession.

One. It is here once more insisted by appellant that “Members of petitioner’s race were intentionally, deliberately, and systematically limited in the selection of petit jury panels”. We have purposely set out in some detail the'method by which the Federal District and Circuit Courts concluded, by comparison with the Bailey case, that in the first trial there was evidence of discrimination to the extent that appellant was denied his rights under the Fourteenth Amendment to the United States Constitution. It is of course understandable why the District and Circuit Courts did not attempt to lay down any single, simple rule to guide us here. We • recognize, as did they, that the problem does not lend itself to a solution of this type. The result is that we are left to. consider the facts “taken in the aggregate’’’ and decide whether the Negro race has been discriminated against in the selection of the jury in this particular case. It is our conclusion that no such discrimination is revealed by the record before us.

The only testimony touching the question of discrimination was given by two jury commissioners who selected the names placed on the jury panel. Under oath they stated that race had nothing to do with selecting the jurors. In the absence of any attack on their credibility, we feel that we must take the position that they told the truth. It is in order then to examine the record to see if it contains any facts or circumstances which indicate the testimony of the jury commissioners should be discredited. Several such facts and circumstances were relied on in the Stewart opinion [311 F. 2d 691] and by appellant here to indicate discrimination.

We now examine some of them, for possible bearing on this case.

(a) From 1952 to 1960 there were no Negroes’ names on the alternate panels and only three names (at any one time) on the regular panel. It is our opinion that any implication or prejudice or discrimination dedueible from the above facts is overcome by the fact that here eleven Negroes were chosen. Otherwise it is hard to see how the implication can ever be overcome.

(b) Here, as in the first Steivart case, the poll tax books indicated race, but here the undisputed testimony shows race designation was not used for the purpose of discrimination, and the number of Negroes selected supports that testimony.

(c) It is argued by appellant that the jury commissioners made no.effort to acquaint themselves with members of the Negro race, which fact tends to indicate discrimination. Here, the jury commissioners said they knew “a large number of Negroes”. This, in our opinion, is sufficient to dispel any implication of discrimination.

(d) Although it was said in the Bailey case, supra, that proportional race representation on juries was not required, appellant argues that systematic and continued selection of less than a proportionate representation of the Negro race shows discrimination. The implication being, of course, that such discrimination has been shown in this case. We do not agree. Any such implication based on past history is overcome by the undisputed testimony here—that is, the Negro race was proportionally represented. Even though such representation is not required, it does show the Negro race was not discriminated against in this case.

The burden was on appellant to prove discrimination in selecting the jury. See Torrance v. Florida, 188 U. S. 519, 23 S. Ct. 402, 47 L. Ed. 572, and Akins v. Texas, 325 U. S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692. In view of all we have heretofore said we hold appellant has not discharged that burden in this case.

Tioo. We see no merit in appellant’s contention that his rights under the Fourteenth Amendment to the United States Constitution have been denied in that Negroes have been excluded from being jury conunissioners for the past fifty years. The question presented here is whether the jury panels, and not the jury commissioners, have been properly chosen. We are unwilling to accept the fatalistic concept urged by appellant which leaves no room for change and improvement. If the present is wholly dependent on the past, then there is no hope for the future. In the case of Moore v. Henslee, 276 F. 2d 876, this contention was fully and ably explored and found to be without merit—the Court saying it was not supported by either “precedent or logic”.

Three. It is here contended appellant’s confession was made without benefit of counsel and that it was coerced and involuntary. We are likewise unable to see any merit in this contention under the undisputed testimony. Appellant’s confession was not made in open court, but was made to police officers soon after the crime was committed. The appropriate statute in this situation is Ark. Stat. Ann. § 43-2115 (1947), which reads:

“A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed.”

In Ezell v. State, 217 Ark. 94, 229 S. W. 2d 32, the above section was interpreted to mean an extrajudicial-confession of the defendant must be corroborated by proof of the corpus delicti. In Mouser v. State, 215 Ark. 131, 219 S. W. 2d 611, we held that a confession obtained outside of court along with further proof that the crime was actually committed will sustain a conviction. In the case before us there is abundant and uncontradicted proof to corroborate appellant’s confession of guilt. Appellant admitted possession of the knife which was found at the body of the victim, and he led the officers to the areas where they found numerous articles, located at different places, which wore taken from the victim. See: Boone v. State, 230 Ark. 821, 327 S. W. 2d 87, and Hargett v. State, 235 Ark. 189, 357 S. W. 2d 533.

The record, likewise, does not support appellant’s contention “that his alleged confession was coerced and involuntary. ...” There is no testimony that appellant was in any way abused or threatened. On the other hand, the officers positively stated no force or threats were used. It further appears that the prosecuting attorney advised appellant that what he said might be used against him, and also advised him of his rights to refuse to talk and to be represented by counsel.

Other Points Raised. In addition to the principal points relied on by appellant, other points and issues were raised in the motion for a new trial and discussed in the brief. We have carefully considered each and every one of the points and issues and find no reversible error in any of them. We deem it sufficient to make brief mention of some of them.

Appellant asked for a continuance because of lack of time to prepare for trial. On the showing made, we think the trial court was justified in refusing the continuance on the ground that the evidence would be similar to that of the former trial, that one defense attorney was in both trials, that the time allowed for trial was limited, and that appellant had been in the State Hospital thirty days (for observation) during which time his attorneys could have conferred with him. .We have consistently held that the matter of granting or denying a continuance in criminal cases rests in the sound discretion of the trial court. Thompson v. State, 26 Ark. 323; Jackson v. State, 54 Ark. 243, 15 S. W. 607; Sullivan v. State, 109 Ark. 407, 160 S. W. 239; and Leach v. State, 229 Ark. 802, 318 S. W. 2d 617.

We find no error in the trial court’s permitting the introduction of certain photographs since the court explained they were introduced only to show the surroundings of the scene of the murder. This, also, was a matter resting in the sound discretion of the court. Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17.

A police officer was permitted to state that a stain on the victim’s coat appeared to be blood, and the admittance of this testimony is assigned as reversible error. We do not agree, even though the witness was not an expert on such matters. See Richardson and Shoop v. State, 221 Ark. 567, 254 S. W. 2d 448.

Finding no reversible error, we conclude the judgment of the trial 'court should be, and it is hereby, affirmed.

Affirmed.

Holt, J., not participating.


source: Caselaw Access Project

author: Sam Eobinson, Associate Justice.

license: Public Domain

text:
    Huffman v. City of Hot Springs.
    5-3145
    375 S. W. 2d 795
    Opinion delivered March 2, 1964.

      Wootton, Land & Matthews, for appellant.

      Robert D. Ridgeivay, Earl J. Lane, for appellee.
   Sam Eobinson, Associate Justice.

On Marcb 12, 1962, appellant, Billy Huffman, was driving Ms automobile west on Alcorn Street in tbe City of Hot Springs. "When he reached Central Avenue he collided with an automobile owned by appellee, City of Hot Springs, and being driven by appellee, Bobby Digby, who, at the time, was a city policeman. Digby was answering a call to a corner on Central Avenue where someone had driven a car into the front of a store building. The City of Hot Springs and Digby filed this suit against Huffman, Digby alleging personal injuries and the City alleging damages to the automobile. The trial resulted in a judgment for the City in the sum of $142.00 for damages to the automobile, and Digby recovered- a judgment in the sum of $9,000.00 for personal injuries. Huffman has appealed.

Appellant first argues that the trial court erred in sustaining a motion filed by appellees to strike a cross-complaint filed by appellant in which he asked for damages done to his automobile. The suit was filed by the City of Hot Springs and Digby on the 30th day of March, 1962. On the 17th day of April, appellant filed his answer but did not cross-eomplain. On May 25, a little over a month later, appellant filed a cross-complaint in which he asked judgment in the sum of $272.00 for damages to his automobile. About eight months later, on January 17, 1963, the cause came on for trial, and at that time the court sustained appellees’ motion to strike the cross-complaint.

The trial court sustained the motion to strike the cross-complaint on the theory that Ark. Stat. Ann. § 27-1135 (Repl. 1962) requires the counterclaim be filed within 20 days from the date of the service of summons, and that here the claim was not filed for more than 30 days after the service of summons. As pointed out in Easley v. Inglis, 233 Ark. 589, 346 S. W. 2d 206, in this state, insofar as pleadings are concerned, there does not appear to be any valid distinction between a counterclaim and a cross-complaint.

Ark. Stat. Ann. § 27-1135 (Eepl. 1962) provides: “A defendant to any complaint or cross-complaint must appear or plead either generally or specially the first day after expiration of the periods of time set forth below, as the case may be: First. Where the summons has been served twenty (20) days in any county in the state; ...”

Ark. Stat. Ann. § 27-1121 (Repl. 1962) provides: ‘ ‘ The answer shall contain: . . . A statement of any new matter constituting a defense, counter-claim or set-off, in ordinary and concise language, without repetition. . . . In addition to the general denial above provided for, the defendant must set out in his answer as many grounds of defense [,] counter-claim’ or set-off, whether legal or equitable, as he shall have. ...”

The construction placed on the statute by the trial court is too narrow. We have held that where a defendant answers without filing any preliminary pleading such as a demurrer or motion, the answer must be filed within 20 days from the service of summons. Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439; Pyle v. Amsler, 227 Ark. 785, 301 S. W. 2d 441. Although those cases construed Acts 49 and 351 of 1955, the rule there announced is applicable to Act 53 of 1957, where, as here, the provisions added by the 1955 Act are not involved. Interstate Fire Insurance Co. v. Tolbert, 233 Ark. 249, 343 S. W. 2d 784. We have also held that the filing of a valid motion meets the requirements of the statute, and in cases of that kind a default judgment cannot be taken against the defendant although he has not actually filed an answer. Stokenbury v. Stokenbury, 228 Ark. 396, 307 S. W. 2d 894; West v. Page, 228 Ark. 13, 305 S. W. 2d 336; Flippin v. McCabe, 228 Ark. 495, 308 S. W. 2d 824.

If a defendant files a valid pleading within the prescribed time he has done all the statute requires. We pointed out in Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439, that the purpose of the statute was to expedite litigation and prevent dilatory tactics. Of course after both parties are in court, the trial judge will not tolerate an unreasonable delay in disposing of the litigation. Here, the filing of the cross-complaint occasioned no delay whatever; it was filed on May 17 and the case did not come on for trial until about eight months later.

In many instances it would be wholly impractical to file a cross-complaint for personal injuries within the 20 day period in which the answer to the complaint must be filed. If the complaint is filed within a few days after the occurrence of the mishap giving rise to the cause of action, and this happens in many instances, the defendant may not know the extent of his injuries, or, for that matter, he may not know that he is injured at all.

Ark. Stat. Ann. § 27-1135 (Repl. 1962) provides that a defendant must either plead generally or specifically within a certain time. The filing of an answer meets the requirement of the statute, and there is no sound reason why a party should not be permitted to amend his pleading thereafter, provided, of course, such pleading is filed within a reasonable time. We have concluded that the motion to strike the cross-complaint should have been overruled.

During the course of the trial, the appellee, Digby, testified that he was not then working for the city; that he had been retired on pension because of the injuries he received in the collision in controversy. Appellant attempted to cross-examine Digby on the theory that he had been discharged by the city for misconduct. The trial court refused to permit counsel for appellant to cross-examine appellee Digby along that line. Counsel made it clear that he had reason to believe that appellee was discharged for misconduct. Counsel stated: “Your Honor, if allowed to ask the question we propose to ask on cross-examination, which is to ask the plaintiff, Bobby Digby, first; whether or not he is making any claim that his physical condition that he suffered as a result of this accident, whatever it may be, has any connection with his dismissal from the police force; and further, to ask the question whether or not he was discharged by the Civil Service Commission of the City of Hot Springs on the basis of misconduct. I believe the date of that being April 4, 1962. We think that both questions and anything from that that necessarily required questions are proper for several reasons. First, the question goes to the credibility. Second, it goes to the issue of damages of what lie may have lost, if anything, as a result of the accident. And further, if necessary, we would have the custodian of the records of the Civil Service Commission of Hot Springs testify, and those records will reflect that Bobby Digby was discharged on April 4, 1962, being subsequent to this accident, and that the Civil Service Commission records reflect that Bobby Digby was discharged after having been put on probation, and that the discharge was for misconduct on his part, which is clearly separate and apart and unrelated in any manner upon the accident upon which this lawsuit is based.”

Counsel should have been permitted to cross-examine appellee Digby as suggested. Wide latitude is permissible in cross-examining a party, who- is to be treated as any other witness, to-elicit facts contradicting his testimony given on direct examination or impeaching his credibility as a witness. Peterson v. Jackson, 193 Ark. 880, 103 S. W. 2d 640. It is said in 98 C. J. S. 125: “The office of cross-examination is to test the truth of statements of a witness made on direct examination. Cross-examination serves as a safeguard to combat unreliable testimony, providing a means for discrediting á witness’ testimony, and is in the nature of an attack on his truth or accuracy. The purpose of cross-examination, however, is not limited to bringing out a falsehood, since it is also a leading and searching inquiry of the witness for further disclosure touching the particular matters detailed by him in his direct examination, and it serves to sift, modify, or explain what has been said, in order to develop new or old facts in a view favorable to the cross-examiner. The object of cross-examination, therefore, is to. weaken or disprove the case of one’s adversary, and break down his testimony in chief, test the recollection, veracity, accuracy, honesty, and bias or prejudice of the witness, his source of information, his motives, interést, and memory, and exhibit the improbabilities of his testimony. ’ ’

Appellant further complains of the trial court’s refusal to give the jury an instruction to the effect that appellees could not recover if the collision was due to an unavoidable accident. In this ease such an instruction would have been abstract, because there is no allegation in the pleadings and no evidence of an unavoidable accident. It is just a simple case of negligence; each side contending that the other negligently ran the traffic light when it was red, thereby causing the collision. In the circumstances, the court was not required to give an instruction on an unavoidable accident.

Reversed and remanded for new trial.


author: Jim Johnson, Associate Justice.

text:
    Ark. State Highway Comm. v. Jackson County Gin Co.
    5-3182
    376 S. W. 2d 553
    Opinion delivered March 2, 1964.
    [Rehearing denied April 6, 1964.]

      Mark E. Woolsey and Thomas B. Keys, for appellant.

      Wayne Boyce and Fred M. Pickens, Jr., for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from eminent domain proceedings brought by appellant Arkansas State Highway Commission against appellees, Jackson County Gin Company and others, to acquire .08 acres of appellees’ land for highway purposes. On May 26, 1961, appellant filed its complaint and declaration of taking in Jackson Circuit Court and deposited $450.00 in the registry of the court as estimated just compensation. Trial was held on May 14, 1963. After deliberation the jury returned a verdict for appellees in the sum of $6,000.00. Prom judgment on the verdict, appellant has prosecuted this appeal urging four points for reversal.

The first point relied upon by appellant is that the court committed reversible error in permitting one of the former owners, Mr. R. S. Rainwater, and the manager for the present owner, Mr. Bob Gardner; to testify over the objection of appellant to an offer made by Mr. Rainwater to sell three gins to Mr. Buck Hurley and to testify that Mr. Rainwater had reduced the sales price $10,000.00 because of the condemnation.

Mr. Rainwater, one of the appellees who had owned 90% of the stock in the gin company, testified that he was negotiating with Mr. Buck Hurley to sell him three gins, including the Jackson County Gin, for .“about two hundred forty thousand dollars.” His testimony reveals that further negotiations were postponed, apparently, until after cotton season, during which period Mr. Hurley died; that negotiations were later resumed with other officers of the Hurley corporation and a sale of the gins was consummated. In the interim, however, appellant had filed this condemnation action. After appellant’s objection, Mr. Rainwater’s testimony continued as follows :

‘ ‘ Q. How much less than the full price did you get on the subsequent sale?

“A. Well, they felt, and I think it was their feeling and our feeling and the feeling of their counsel, that since this property had been condemned that we were the losers and they were buying it as is, don’t you see; I mean that was their contention that the Highway Department was not condemning the property that belonged to them, it had already condemned the propexdy that'belonged to us. Therefore, if any damages, and what damages were sustained that belonged to us and they would have to buy it as it was, and we admitted to them and we told them they would have to move their scales which they understood and they wanted us to arrive at a price so that it would enable them to do that and I took off $10,000.00 of what we had practically agreed on because we have got to move those scales and we have got to do a lot of other things there. And then they said this, that they would buy it as it was and we would let this suit continue as it was and the suit then would be between the Highway Department and against ns. Now that was the agreement that we had in the sale of the property.”

Mr. Bob Gardner, the managing head of the Hnrley Enterprises, testified over appellant’s objection that the tentative purchase price was reduced, and that the amount of the reduction was $10,000.00.

Appellant urges that the principle of Arkansas State Highway Commission v. Elliott, 234 Ark. 619, 353 S. W. 2d 526, should be controlling here. In that eminent domain case the landowner’s lay witness was allowed to testify what he had offered to buy the property for from the landowner and also allowed to read into evidence a letter containing this offer. After discussion of the testimony and review of a number of authorities, this court unequivocally stated, “we hold that the evidence of an offer to purchase is not admissible to establish the fair market value of particular property.” It is true as argued by appellees that the case at bar is distinguishable from the Elliott case on its facts, however the salutary rule laid down in Elliott must not be “distinguished” away, and we therefore reaffirm our holding that the evidence of an offer to purchase is not admissible to establish the fair market value of particular property.

For its second point appellant contends that the trial court committed reversible error in permitting evidence of moving costs to be introduced over appellant’s objection. Under the rule of Arkansas State Highway Commission v. Carpenter, 237 Ark. 46, 371 S. W. 2d 535, moving costs could be considered a factor in arriving at the before and after value. The rule was stated thusly in Carpenter:

“We have said that there is no set formula or pattern that must be followed at arriving at before and after value. (Cases cited.) Consideration may be given to every element which a purchaser, willing but not obligated to buy, would consider. ’ ’

Appellant next asserts that the trial court committed reversible error in not striking the testimony of Joe Stafford, one of appellees’ value witnesses. While much of Mr. Stafford’s testimony was clearly inadmissible, we are bound by the rule that a motion to exclude all of the testimony of a witness is properly overruled if a part of the testimony is competent. Arkansas State Highway Commission v. Bowman, 237 Ark. 51, 371 S. W. 2d 138; Arkansas State Highway Commission v. Carpenter, supra.

Appellant’s last point questions the sufficiency of the evidence to support the judgment. Inasmuch as the case must be reversed and remanded for the error indicated, we do not reach this point in this appeal.

Reversed and remanded.


author: Frank Holt, Associate Justice.

text:
    James v. James.
    5-3193
    375 S. W. 2d 793
    Opinion delivered March 2, 1964.

      Spencer £ Spencer, for appellant.

      Brown, Compton £ Preivett, for appellee.
   Frank Holt, Associate Justice.

This appeal arises' from the imposition of a fine and jail sentence for violation of a restraining order.

The appellee was granted a divorce from appellant in January, 1960. She was awarded custody of their four minor children with appellant having certain visitation rights. In August, 1960, in another proceeding, the appellee and appellant settled their property rights and she was given exclusive use and occupancy of the homestead. A temporary restraining order was dissolved, leaving the appellant free to visit his children in appellee’s home. In January, 1963, the Chancellor granted appellee’s petition for a temporary restraining order, later made permanent, which enjoined the appellant from molesting the appellee in any manner in her use and occupancy of the homestead and, in particular, enjoined the appellant from (1) going into or about the home or premises, (2) removing, mutilating or destroying any of the furniture, (3) calling appellee on the telephone, (4) writing letters or notes to appellee, and (5) attempting to contact or communicate with her in any way. Shortly thereafter, the appellant entered a local beauty shop where appellee was seated as a customer and without any warning or provocation he struck her with his fist, breaking the cartilage in her nose causing profuse bleeding and requiring medical attention. He, also, made verbal threats of future harm. Appellant was convicted of assault and battery in a criminal proceeding. On that same day the Chancellor held him in contempt for violating the restraining order, assessing a jail sentence of 180 days and a fine of $1,000.00, suspending the jail sentence and $800.00 of the fine.

On appeal the appellant contends for reversal that assault and battery is a criminal offense which the Chancellor did not have jurisdiction to enjoin and did not enjoin. We do not agree. In Pace v. State, 177 Ark. 512, 7 S. W. 2d 29, we quoted with approval:

‘ ‘ The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of .order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. ’ ’

The fact that an act enjoined also happens to be a criminal offense does not affect the power of a court of equity to enforce its order and the criminal aspects of an act neither give nor oust equity of jurisdiction. Meyer v. Seifert, 216 Ark. 293, 225 S. W. 2d 4; Hickinbotham v. Corder, 227 Ark. 713, 301 S. W. 2d 30. If it should be held that the imposition of a criminal penalty for violation of a law would deprive a court of equity of jurisdiction to enforce its orders then a person desiring to proceed or continue in violation of the law might be able to pay a maximum fine and, thus, make himself immune from a valid chancery court injunction. This is not and should not be the law. Van Hovenberg v. Holman, 201 Ark. 370, 144 S. W. 2d 718. In the case at bar the guilt or innocence of the appellant in the criminal court in no manner affected the jurisdiction of the chancery court to enforce its restraining order.

The appellant next argues that the punishment is excessive. We disagree. In addition to physically attacking the appellee, the appellant violated the court’s restraining order in other particulars including calling her on the telephone and using threatening and abusive language. The court suspended the jail sentence and $800.00 of the $1,000.00 fine. The suspension of this much, of appellant’s punishment is, in effect, a complete remission of that part of the punishment and is not subject to revocation. Songer v. State, 236 Ark. 20, 364 S. W. 2d 155; Harrison v. Terry Dairy Products Co., 225 Ark. 953, 287 S. W. 2d 473; Stewart v. State, 221 Ark. 496, 254 S. W. 2d 55. Therefore, the net effect of appellant’s punishment is the payment of a $200.00 fine which most certainly is not excessive under the facts in the case at bar. Ex Parte, Dukes, 155 Ark. 24, 243 S. W. 863; Hickinbotham v. Williams, 228 Ark. 46, 305 S. W. 2d 841.

The appellant also contends that the court erred in depriving him of all rights to visit or communicate with his children. We find no merit in this contention. The Chancellor’s decree reads, in pertinent part:

‘ ‘ Further, that the rights of visitation with his children, heretofore granted to the defendant, be limited to such visitation as the children and the defendant may voluntarily agree upon. The defendant is not to go to the home of the plaintiff nor on or about the premises of the plaintiff’s home in the exercise of the right of visitation to see the children.”

The appellant insists that he have visitation rights with his children, ages 11, 12, 14 and 16, at the home of the appellee. Appellee has no objection to the right of appellant to see and be with his children other than in her home since, she contends, their difficulties stem from his presence there. We think the Chancellor’s order respecting visitation with his children was proper. Of course, the appellant is not precluded from applying to the Chancellor for a modification of the decree if he feels it is not sufficiently specific with reference to his visitation rights elsewhere.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Farmers Mutual Ins. Co. v. Denniston.
    5-3180
    376 S. W. 2d 252
    Opinion delivered March 9, 1964.

      Parker Parker, for appellant.

      Dobbs, Pryor and Dobbs, Batchelor & Batchelor, for appellee.
   Carleton Harris, Chief Justice.

In July, 1959, W. E. Denniston and wife, appellees herein, hereinafter referred to in the singular as appellee Denniston, purchased from Charles Fite, d/b/a C. H. & F. Company, a house trailer on an installment contract. At that time Fite took out automobile insurance (including fire insurance) with the Phoenix Insurance Company, hereinafter called Phoenix, one of the appellees herein, the policy being issued to Denniston. The agent for Phoenix, Francis Hiller, did not deal directly with Denniston, except to advise him of the collision features of the policy that had been issued. The fire insurance coverage was in the amount of $3,500. Mr. Denniston moved the trailer to the school grounds at Oark, where he was serving as superintendent of the school, and the trailer was placed upon concrete blocks, and connected to utilities. In June, 1960, Denniston signed an application for insurance with the Farmers Union Mutual Insurance Company, hereinafter called Farmers, advising the soliciting agent for the company, Lowell Whittington, that the trailer had a value of $6,000. Denniston applied for $4,000 insurance on the trailer, and $1,000 on the contents thereof. On June 15, Farmers issued its policy, providing, inter alia,

“This entire policy shall be void if whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.

“This company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved whether collectible or not.”

The Phoenix policy contained a similar provision ivith reference to proration.

On January 17, 1961, the trailer and its contents Avere completely destroyed by fire. Both insurance companies Avere advised of the loss. Phoenix, at all times, has been ready to pay its prorata share of the loss. However, a dispute arose between Denniston and Farmers relating to the filing of a proof of loss, and, also, whether Farmers Avas liable for the entire amount of coverage it had issued under the Valued Policy Law. After correspondence, mainly between counsel, for some period of time, Farmers, on May 18, 1961, instituted suit seeking a declaratory judgment to the effect that the policy was void, and should be cancelled as of June 10, 1960. The complaint alleged fraud in the procurement of the policy; that the Dennistons had refused to execute a sworn proof of loss as provided in the policy; that the Dennistons were contending that the trailer constituted real estate, and that the policy should be cancelled as of June 10, 1960, because of fraud. Farmers prayed that the court enter its declaratory judgment finding that it was not liable on the policy, and, in the alternative, that the trailer be declared personal property, and that Farmers be directed to pay only its prorata share of the loss with Phoenix. Fite filed an answer, setting up that he was the owner of the trailer, that it had been destroyed by fire, and that he was entitled to $2,798.88. Fite then filed a cross-complaint against Phoenix, seeking that amount.

The Dennistons answered, denying all material allegations, and filed their cross-complaint against Farmers, seeking judgment in the full amount of the policy; seeking judgment against Phoenix in the amount of $3,500, and asking for statutory penalty and reasonable attorneys’ fees against both companies. After the filing of other motions, the case proceeded to trial. At the conclusion thereof, the court entered its findings wherein it determined that the Dennistons were not guilty of fraud; that the completion of proof of loss forms was not required under the facts in the case; and that the Valued Policy Law was not applicable since the trailer was personal property. The court rendered judgment for the Dennistons in the amount of $4,546.67, plus 12% penalty, and an attorneys’ fee of $450.00. Of this amount, it was held that Phoenix should pay $1,633.34, $162.00 of the attorneys’ fee, plus 12% penalty, or a total of $1,991.34. Farmers was found liable to the extent of $1,913.33 as to the trailer, plus $1,000 on household goods, $288.00 of the attorneys’ fee, and 12% penalty, or a total of $3,550.93. Judgment was entered in accordance wii.li these findings, and from such judgment Farmers brings this appeal. The Dennistons have cross-appealed, contending that the court erred in declaring the trailer to be personal property, and asserting that they are entitled to the full coverage from Farmers. Phoenix cross-appeals as to the finding of the court that it is liable for penalty and attorneys’ fees. For reversal, appellant relies upon several points, which we proceed to discuss.

It is asserted that the policy is void because of fraudulent misrepresentations by Denniston in his application for insurance. This contention is based on the assertion that Denniston gave a fraudulent answer as to the value of the property, did not reveal the fact that another insurance policy was in force, and fraudulently withheld other pertinent information. As to the first, Denniston testified that, upon purchasing the trailer, he was advised that it had an original value of $6,000, but had been damaged in a fire; that, however, the seller stated to him that it was subsequently restored to equally good condition, even though sold to this appellee for only $3,500. Under Denniston’s testimony, he had a reasonable basis for believing the value given, and the soliciting agent for the company who viewed the property testified that, “I relied on Mr. Denniston. As far as I could tell, the home was worth what he said.” As to having'insurance with Phoenix, there was evidence that Denniston did not wilfully conceal that fact. In the first place, this policy was taken out by Fite with the Brown-Hiller Insurance Agency, and Hiller testified that he had no contact with Denniston except to advise by letter when the temporary collision coverage would expire. In the next place, no fraudulent answer was given on the application. Fourteen questions are listed in the application form, including the question, “Is there other insurance on any of this property? If so, how much and in what company?” This question, along with the other thirteen, is not answered at all. Complaint is also made that the company was not informed that the property was encumbered. This is question No. 7 on the form, and is not answered. In fact, no questions relative to the property are answered at all, and the application form contains nothing more than the identification of the insured item (trailer and contents), cash value, amount of insurance (applied for), the rate and premium charged, and the signatures of the assured and the agent. The company issued a policy on this application, so it would appear that appellant did not consider the answers important; otherwise, it would have returned the application with directions that it be completed. As we stated in Mutual Reserve Fund Life Association v. Farmer, 65 Ark. 581, 47 S. W. 850:

“The applicant made no answer to the question marked “D” but left the space for answers as to the name and address of the physician referred to blank. If that was thought to be important, the application for the policy should not have been accepted until the answers were made by the applicant. Certainly, we would not say, under the circumstances, by this failure to fill out the blank for the answer, the applicant was suppressing the truth, especially in view of his previous answers, indicating a want of knowledge on the subject.”

Here, too, not only does it appear that the company considered the failure to answer the questions as unimportant, but a lack of knowledge on the part of Denniston is certainly indicated by the fact that no answers were given to any question. Clearly, there was substantia] evidence to support the finding of the court that no fraud had been committed.

It is asserted that Denniston refused to furnish appellant proof of loss, and the contract is therefore void. Under the provisions of the policy, an executed proof of loss is required within 60 days after the loss occurs, unless the time be extended in writing by the company. Proof on the part of appellee Denniston was that on January 17, 1961, the date of the fire, counsel for this appellee wrote a letter to appellant company, in which he advised of the fire, that the property loss was total, and requested proof of loss forms. Thereafter Carrol D. McCarty, adjuster for appellant company, went to Fort Smith, and learned of the existence of the Phoenix policy and of the encumbrance to Fite. McCarty conferred with John Bonds, representing Phoenix, and subsequently advised Denniston that he (McCarty) would be in Oark on a certain day.- McCarty failed to appear oh that occasion, and some days later returned, but was unable to locate Denniston. According to the adjuster, he left a letter and a proof of loss form with one of appellee’s neighbors, requesting that same be turned over to Denniston. This apparently took place about two weeks after the fire. On February 3, Denniston directed a letter to appellant, stating:

“I am sorry you missed seeing me today, for I do not quite understand what you mean by personal property, as the loss according to my way of thinking would be almost countless. We lost a 13-year accumulation of property, from needles to a TY. The following list may or not be what you mean:”

The letter then listed numerous items of personal property together with the valuation that he plaeed upon them.

It appears from the record that no further action was taken by the company directly with Denniston for some period of time, and there is no evidence that counsel for Denniston ever received any proof of loss forms as requested in his letter of January 17. As shown by the evidence, counsel for appellant directed a letter to Denniston on April 5, advising the latter that the complete file had been turned over to him, and that the file did not contain a proof of loss as required by the policy. A proof of loss was enclosed with the letter, and it appears that Denniston received the proof of loss form. The record is somewhat confusing, containing, as it does, numerous letters between counsel. However, it is undisputed that counsel for Denniston requested proof of loss forms on the day of the loss, and there is no evidence that these forms were furnished. Denniston denies that any proof of loss form was given to him by any neighbor, as stated by McCarty. It likewise seems undisputed that the company took no further steps to place in the hands of Denniston or his attorney any proof of loss forms until April 5, which was, of course, more than sixty days after the loss had occurred. Counsel for appellant offered to extend the time, but we are of the opinion that Farmers, by its conduct, waived the requirement for proof of loss. For one thing, the company should have sent the forms to Denniston’s counsel, as requested. For another, if the list (of personal property loss) contained in Denniston’s letter was not satisfactory, the company should have immediately advised him of that fact rather than waiting until April 5. Finally, under date of March 13, Richard Hopkins, claim director for Farmers Union Mutual Insurance Company, directed a letter to Denniston’s attorney, as follows:

“Dear Mr. Batchelor

Relative to your file No. 3411407364, W. E. Denniston, our letter of February 6, 1961, written by Mr. C. D. McCarty stated that our Company was ready to settle on the basis discussed by Mr. Bonds and Mr. McCarty. Since that date we have had no communication from you.

We would appreciate knowing if an attempt has been made by you to settle on this basis with the insured. We would like to dispose of the claim as soon as possible, and rvill be awaiting your reply.”

This letter is certainly evidence that Farmers had already investigated the claim, had determined upon a figure that it would pay, and was accordingly not insisting upon the proof of loss.

In National Union Fire Ins. Co. v. Wright, 163 Ark. 42, 257 S. W. 753, this court said:

“If an authorized agent, within the time specified for making proof of loss under the policy, enters into negotiations for the adjustment of the loss, or otherwise treats this requirement of the policy as having been complied with, or as waived, then the company cannot thereafter defend upon the ground that a proof of loss was not furnished.”

See also American Insurance Company v. Rector, 172 Ark. 767, 290 S. W. 367. In Conley v. Fidelity-Phenix Fire Ins. Co. of New York, 102 F. Supp. 474, (U.S.D., W.D. Ark., Ft. Smith Division), it was said:

“However, a failure to give notice or furnish proof of loss is waived by any conduct on the part of the insurer or its authorized agent inconsistent Avith the intention to enforce a strict compliance AAÚth the insurance contract in such regard. A waiver of formal proof of loss may be inferred under a variety of circumstances, such as subjecting the insured to an examination under oath as to the facts of the fire, or by retaining without objection a claim made Aid thin the 60 day period, or by charging the insured Avith the crime of arson. Any conduct on the part of the company or its representatives prior to the expiration of the sixty day period which lulls the insured into a feeling of security in that regard is sufficient to establish a Avaiver.”

It is asserted that the court erred in establishing the value of the trailer at $3,800.00, less depreciation. The court’s finding was based upon the fact that the trailer had been purchased for $3,500.00, and Denniston had added a porch, and various utility connections, AAThich were found to add $300.00 to the value. This point only relates to $300.00, and Ave are unable to say that there was no substantial evidence to support the finding.

Except for one further argument, concerning attorneys'’ fees, the remaining points relate to the cross-appeals.

The Dennistons contend that the court erred in holding that the house trailer was, within the meaning of the statute, personal property. We do not agree. The proof reflected that the trailer was placed on school property by the consent of the school board. It was set on concrete blocks, though not cemented to them, and the wheels were still on the trailer, although lifted from the ground and the air removed from the tires. Utilities were connected to the trailer. In Kearbey v. Douglas, 215 Ark. 523, 221 S. W. 2d 426, we said:

“The basic principles observed by the courts in determining whether personal property becomes a fixture by annexation to the land are discussed in Choate v. Kimball, 56 Ark. 55, 19 S. W. 108, and Tiffany on Real Property (3d Ed., §§ 606-626. We have held that the intention of the person making the annexation is a consideration of primary importance, Morgan Utilities, Inc. v. Kansas City Life Ins. Co., 183 Ark. 492, 37 S. W. 2d 90; but Tiffany rightly concludes that the courts apply an objective test and arrive at the annexer’s intention by looking to his outward acts rather than to the inner workings of his mind. Tiffany, supra, § 608. It thus becomes necessary to examine the manifestations of intent that have been regarded as controlling.”

A compelling reason for finding that the trailer did not lose its identity as personal property is the fact that it was placed on land belonging to the school district, rather than on land owned by appellee. Denniston did not even have a lease on the property, and it is apparent that he did not contemplate leaving it on school property thenceforth. In fact, his intention is best shown by his own testimony, wherein he stated,

“Naturally I would take it away if I did not sell it or would not want to leave it there unless I would sell it. ’ ’

In his discovery deposition, taken prior to the trial, Denniston stated that he intended to leave the trailer on the school ground ‘ as long as I was there working. ’ ’ When asked if he intended to take it away when he left, appellant replied, “Well, naturally, I guess I would.” It is evident that there was never any intention that the trailer should remain on the premises, except for a limited period of time, and the testimony referred to constituted substantial evidence to support the ruling of the trial court. Having reached the conclusion that the trailer was personal property, it becomes unnecessary to consider the Valued Policy Law as the statutory provisions do not apply to personal property.

We agree with appellant, and with Phoenix, that the court erred in holding that Denniston was entitled to recover the statutory penalty, and attorneys’ fees, from these companies. As to Farmers, the complaint sought $5,000.00, and only $2,913.33 (less penalty) was recovered in the litigation. As to Phoenix, the complaint sought $3,500.00, but only $1,633.34 was recovered. We have held many times that a recovery of the amount sued for is a prerequisite to recovering penalty and attorneys’ fees. Southern Farm Bureau Casualty Ins. Co. v. Brigance, 234 Ark. 172, 351 S. W. 2d 417; Kansas City Fire & Marine Ins. Co. v. Baker, 229 Ark. 130, 313 S. W. 2d 846, and cases cited therein.

In accordance with the views expressed herein, the judgment is modified to the extent that appellant and Phoenix are'not liable for penalty and attorneys’ fees. With this modification, the judgment, in all other respects, is affirmed.

       From the record, Phoenix has apparently paid the amount of the lien held by Fite.

       Phoenix, having already paid the lien in full, and such amount exceeding its total liability, was given judgment against Farmers in the amount of $807.54. This amount is included in the total judgment against Farmers of $3,550.93.

       Appellant contends that counsel for appellee, by letter of May 2, 1961, admitted that Denniston had received a proof of loss form in February. The date that such proof of loss was received is not made dear by the letter, i.e., whether February or April, and, in fact, it is not entirely clear that counsel was referring to an actual company proof of loss form, since the letter states that Denniston had completed the proof of loss. Unquestionably, the only “proof of loss” sent to the company was the list of personal properly contained in the letter of February. 3.

       Ark. Stat. Ann. § 66-3901 (1963 Supp.) called “Valued Policy Law.”


author: Ed. F. McFaddin, Associate Justice.

text:
    Russell v. Coffman.
    5-3164
    376 S. W. 2d 269
    Opinion delivered March 9, 1964.

      Williams & Gardner, Wright, Lindsey, Jennings, Lester £ Shults, for appellant.

      Gordon £ Gordon, for appellee.
   Ed. F. McFaddin, Associate Justice.

This litigation results from a traffic mishap. Farris Coffman was plaintiff below and is appellee here. The defendants below and, appellants here are Carl Russell, Coleman Dairy Company, Virgil Bewley, and Jones Truck Line. Coffman was driving west on Highway No. 64 in his pickup truck. Russell was driving east in the Coleman Dairy truck, and behind the Coleman Dairy truck Bewley was driving east in the Jones Truck Line tractor-trailer. The Jones Truck Line vehicle struck the rear of the Coleman Dairy truck and then jackknifed across the center line of the highway and struck the oncoming pickup truck of Farris Coffman, who was at all times in his proper lane on the highway. Coffman’s truck was demolished and he received serious and painful injuries, for all of which he filed this action. His complaint was vigorously resisted by all four defendants, but jury trial resulted in a verdict and judgment in Coffman’s favor for $25,000.00; and on this appeal the four appellants present these two points:

“I. The trial court committed prejudicial error in permitting the exhibition to the jury of Parris Coffman’s kneecap and the exhibition to the Jury of colored slides of Coffman’s kneecap taken in the operating room.

“II. The verdict for $25,000.00, exactly the amount for which recovery was sought, was excessive.”

I. Admission Of Evidence. The collision occurred on January 10, 1962. Among other injuries Coffman received a severe injury to his left knee; and as the months passed the injury to the knee became more serious. Coffman’s local physician, Dr. "Wells, referred the patient to Dr. Kenneth Jones in Little Rock; and after considerable X-ray work and observation it was determined that Coffman had suffered a chondromalacia of the patella, which is an injury to the kneecap. His pain was constant and terrific; and it was finally found necessary to remove his kneecap. This was done on December 2, 1962, and after extended therapy and hospital treatment Mr. Coffman was again able to walk, but still used a cane.

At the trial Dr. Kenneth Jones, the orthopedic surgeon who performed the operation, testified in great detail about the injury to the kneecap, the necessity of the operation, and the therapy. That Dr. Kenneth Jones is an expert in his field was conceded at the trial. He showed two X-ray negatives to the jury, exhibited the scar on Mr. Coffman’s knee, and then told of the operation. Dr. Jones testified that after the kneecap was removed and examined, the extensive chondromalacia of the surface of the kneecap was easily apparent. He had kept Mr. Coffman’s kneecap in a preservative, and he exhibited this kneecap to the jury to explain the size of the kneecap and the injuries apparent to it. The defendants vigorously7’ objected to the exhibition of this kneecap to the jury, and that is the point that is now urged on appeal.

After the kneecap was exhibited, Dr. Jones also exhibited two pictures that he had taken of the kneecap immediately after it had been removed. The appellants insist that with the exhibition of the X-ray plates, the injured knee of Mr. Coffman, the pictures, and the detailed and lucid testimony of Dr. Jones, there was no need to exhibit the removed kneecap, and that such tended to inflame the jury and increase the verdict. On this point appellants cite such cases as Anderson v. Seropian (Calif.), 81 P. 521; Rost v. Brooklyn Heights RR., 41 N.Y.S. 1069; Evans v. Chicago RR. (Minn.), 158 N.W. 335; and the quite recent case of Harper v. Bolton (S.C.), 124 S.E. 2d 54, in which the South Carolina Court said:

‘ ‘ The exhibition of injuries should not be permitted where such will not tend to throw any light on any issue in the case, nor should an exhibition be permitted where it is apparently designed merely to excite pity and commiseration . . .

“The exhibition of the enucleated eye of the respondent did not tend to throw any light on any issue in this case. We think the trial Judge committed error in permitting the introduction of the removed and preserved eye.”

There is an exhaustive annotation in 66 A.L.R. 1334 entitled, “Propriety of permitting plaintiff in a personal injury action to exhibit his person to the jury”; and in Sections 12 and 13 of that annotation on page 1366 et seq., there are listed cases in which enucleated eyes and amputated limbs and other separated parts of the body had been exhibited to the trial jury. There is no occasion for us to review all of these cases. In deciding the specific issue here before us, it is our conclusion that, under the facts and circumstances here existing, the Trial Court did not abuse its discretion in permitting the severed kneecap of Mr. Coffman to be exhibited to the jury. What is a chondromalacia of the patella and how extensive Avas the chondromalacia in this case? The average layman might knoAV that “patella” means “kneecap”; but chondromalacia is a big word that doctors may understand but laymen do not. How large is a kneecap? Doctors knoAV; but the average layman probably does not realize the size of a kneecap. The X-ray negatives throw little light on the subject. The pictures that Dr. Jones took of the amputated kneecap had in them nothing by Avhich the size of the kneecap could be determined. Dr. Jones in his testimony used a plastic model which, of course, did not show the injury to this particular kneecap. But the most casual glance at this seArered kneecap of Mr. Coffman revealed the injury; and thereby the jurors, in the first instance, and the Judges on appeal, are able to understand the testimony of Dr. Jones. It Avas not a matter of introducing the kneecap to inflame the jury, but rather to make the testimony of Dr. Jones more easily understood. After examining the kneecap and reviewing his testimony, Ave are thoroughly convinced that the Trial Court did not abuse its discretion in allowing this severed kneecap to be exhibited to the jury.

Furthermore, the defendants had filed a general denial; and under that denial, for aught the Court knew when the kneecap Avas introduced, the defendants might have introduced evidence designed to show that the entire operation Avas unnecessary. The fact that the defendants in presenting their case did not see fit to introduce any medical evidence to dispute Dr. Jones’ testimony, does not establish that when the kneecap Avas exhibited in the plaintiff’s case in chief, the defendants had at that time ever admitted the necessity of the operation; and the severed kneecap was evidence designed to establish that the operation was necessary.

II. jExcessiveness. Of The Verdict. The jury returned a verdict for Mr. Coffman for $25,000.00, and it is claimed that this amount is so grossly excessive as to shock the conscience of the Court; but we find no merit to this contention. It was shown that Mr. Coffman was 49 years of age and that a man of that age has a life expectancy of 22.12 years. Mr. Coffman was a cattle buyer by trade. A portion of his work was to attend auction sales to buy cattle and hogs for a packing.company; and another portion of his work was to engage in ‘ ‘ country and alley trading. ’ ’ This latter required him to jump onto trucks and look at cattle, to go out into the country and round up cattle, and to walk through pastures and fields. Even after his operation he could attend the livestock sales, because most of that work could be done while he was seated; but his ability to engage in “country and alley trading” was materially reduced on account of the removal of his kneecap. Mr. Coffman testified as to his earnings before his injury and before the trial, and as to his inability to engage in a portion of his work since his injury; and the doctors testified as to the permanency of his injury. Mr. Coffman had expended large amounts for doctor bills and hospital bills, and medicine; and he had experienced pain and suffering. It was furthermore testified that he still had, and probably would always have, chondromalacia of the lower end of the femur, the bone on which the kneecap functions. Obviously this femur bone cannot be removed. Whether arthritis will develop is something as to which the doctors have different views. That there will continue to be pain from the chondromalacia of the lower end of the femur is clearly shown. In addition to all .these other injuries, Mr. Coffman suffered some fractured ribs and a whiplash injury. There is no need to detail all of his injuries.: it is sufficient to say that the verdict for $25,000.00 is not so grossly excessive as to shock the conscience.

Affirmed.

       Originally Coffman sued only Bewley and Jones Truck Line. They brought in Bussell and Coleman Dairy as third party defendants; and then Coffman amended claiming relief against all of the four defendants. The jury verdict found Bewley and Jones Truck Line 65% negligent, and Bussell and Coleman Dairy 35% negligent; and Coffman free of all negligence.

       There is a dispute between counsel as to which side introduced the pictures of the removed kneecap; but the Trial Court found that it was one of the defendants’ counsel who introduced the pictures. We attach little importance to this dispute for the reasons stated in the opinion.

       Maloy’s Medical Dictionary for Lawyers defines chondromalacia as “a morbid or unnatural softness of the cartilages.” Dr. Jones testified: “Chondromalacia means a softness of the articular cartilage of any articular surface: that is, the surface of the bone that goes to make up the gliding surface of a joint . . . It is something like the bearing in a motor wearing out or becoming roughened. The joint no longer works as a smooth, gliding surface.”


author: George Rose Smith, J.

text:
    Norton v. State.
    5105
    376 S. W. 2d 267
    Opinion delivered March 9, 1964.
    [Rehearing denied March 30, 1964.]

      F. G. Grow, for appellant.

      Bruce Bennett, Attorney General, By Richard B. Adldsson, Asst. Atty. General, for appellee.
   George Rose Smith, J.

The appellant, aged nineteen, ivas charged by information Avith having raped a girl under the age of sixteen. The jury found him guilty of the lesser offense of carnal abuse and fixed his punishment at three years imprisonment.

There is no real 'question about the sufficiency of the eAÚdence. The accused admitted the act of intercourse but testified that it took place AAdth the cooperation and consent of the prosecuting AATitness. According to the proof she Avas then only fifteen years old; so her consent Avould not be a defense to the charge of carnal abuse. Ark. Stat. Ann. § 41-3406 (1947); Reed v. State, 175 Ark. 1170 (mem.), 299 S. W. 757.

It is insisted that the trial court erred in allowing the mother of the prosecutrix to state her daughter’s age, the objection being that the child’s birth certificate would be the best evidence. This identical contention was rejected in Tugg v. State, 206 Ark. 161, 174 S. W. 2d 374.

At the pretrial conference counsel for the accused asked for the names of the State’s witnesses. The prosecuting attorney supplied all the names except that of Katy Thompson, whose name he could not recall. He explained, however, that she lived in a certain neighborhood, that A. W. Keith, a deputy sheriff, knew her name, and that he (the prosecutor) would furnish the name when he returned to his office. In fact, however*, the prosecuting attorney overlooked the matter of communicating the requested information to the defense attorney before the trial. Even so there was no error in permitting Katy Thompson to testify, for the defense could have learned her identity simply by making a telephone call to the prosecuting attorney or to Keith. In the circumstances it cannot be said that the State unfairly produced a surprise witxxess.

The court was right in allowing Keith to relate an oral confession that was made to him by the accused. Under our holding in Finn v. State, 127 Ark. 204, 191 S. W. 899, this oral 'confession was not rendered inadmissible by the fact that a different confession, made several days later to a deputy prosecuting attorney, was reduced to writing. Moreover, on the witness stand Norton in substa-nce coxxceded the truth of his admissions to Keith.

We fiixd xio merit in any of the appellant’s assignments of error.

Affirmed.


text:
    Worthen Bank & Trust Co. v. Green, Executrix.
    5-3209
    376 S. W. 2d 275
    Opinion delivered March 9, 1964.

      Wright, Lindsey, Jennings, Lester & Shults, By Edward L. Wright, Jr., for appellant.

      Rose, Meek, House, Barron, Nash S Williamson, By George E. Campbell, for appellee.
   Paul Ward, Associate Justice.

This litigation has to do Avith the interpretation of tAvo sections in the will of Miss Lela OAvens. The material facts, which are undisputed, are set out hereafter.

At the time the avíII Avas executed on June 3, 1960 Miss OAvens owned and lived in a house located at 1311 Izard Street in Little Rock—more definitely described in the will. In the THIRD paragraph of her Avill she devised and bequeathed “my home place at 1311 Izard St. . . .’’to the Worthen Bank and Trust Company, in trust, for the use and benefit of her two nephews James and Johnny Ryles (to he turned over to them Avhen the youngest reached 21 years of age). In the FIFTH paragraph of the will the testatrix provided that

“All of the rest and residue of my estate which I may own at my death, including the real estate owned by me ... I direct to be converted into cash as quickly as can safely be done by my Executrix and delivered by her to the board of trustees of PHILANDER SMITH COLLEGE of Little Rock, Arkansas, for the specific purpose of creating a revolving loan fund to be known as the Lela Owens Student Loan Fund.” -

Other property was disposed of in the will but it is not involved in this litigation. The last paragraph appointed Lottie Beavers Green, who is the appellee herein, as executrix.

On August 17, 1961 Miss Owens purchased a house and lot located at 2200 Rice Street in Little Rock (more particularly described in the pleadings). On September 28, 1961 she sold her home at 1311 Izard Street to the City Housing Authority, receiving the full sales price therefor. At about the same time she moved to 2200 Rice Street where she lived and maintained her home until her death on July 21, 1962. The will was duly admitted to probate on July 24, 1962.

Due to the developments above mentioned the executrix filed a petition asking the probate court to interpret the will and to “direct her whether or not the property at 2200 Rice Street should be sold and the proceeds delivered to the Trustees of Philander Smith College, or whether said property passed to Worthen Bank & Trust Company in trust for the use and benefit of James Ryles and Johnny Lee Ryles.” ■

The trial court, after finding the facts previously set out, found that the property located at 2200 Rice Street passed under the FIFTH paragraph of the will to the Board of Trustees of Philander Smith College. Thereupon the court directed the executrix to' dispose of said property in accordance with the provisions of the will. From this order the bank has appealed, seeking a reversal on the two grounds hereafter discussed.

One. It is the contention of appellant that the words “nay honae place”, used in the THIRD paragraph of the will, were sufficient to convey the property at 2200 Rice Street to the bank (in trust for James and Johnny Ryles). To sustain this contention appellant relies on the case of Milton v. Milton, 193 Miss. 563, 10 So. 2d 175. There the testator devised to his wife “my home place”. After the will was executed but before the testator died he sold his (then) home place and bought another home to which he moved. The court there held that the words “my home place” applied to and conveyed the home where the testator lived at the time of his death. We think, however, the language used by the court in reaching its conclusion shows the cited case is not applicable or controlling when applied to the facts of the case under consideration. In part the court said:

“If, when a will is made, the testator owned property embraced therein which he afterwards disposes of, and acquires other property embraced -within the same description, and owns it at his death, the will must be applied thereto, unless something therein indicates that the testator does not so intend.”

In the cited case it is readily apparent that the words “my home place” described equally well both pieces of property. This is not true in the case under consideration here. In the will Miss Owens described the property as ‘ ‘ my home place at 1311 Izard Street in Little Rock legally described as North 33 feet of West 110 feet of Lot 4, Block 233, City of Little Rock, Pulaski County, Arkansas ...” This description patently does not describe the property at 2200 Rice Street.

The material facts in the case under consideration are very similar to those considered in Dunlap v. Hart, 274 Mo. 600, 204 S. W. 525, where the Court held, in effect, that where a testatrix devises specific real estate but sells the same and buys other real estate before the will takes effect the later acquired property passes by inheritance to her heirs. The above rule is applicable to the facts in this case, and we think it is sound and reasonable. Tbe testatrix here had an opportunity to change her will to apply to the property at 2200 Rice if she had wanted to do so.

Two. A second ground (related to the one above) relied on by appellant is that the court should not have applied the rule of ademption in this case. The meaning of the word “adeem” is to revoke. The word “ademption” means the act of revoking such as-here, the revoking of a devise. It is ably contended by appellant that the rule of ademption should not be used to defeat the evident intention of the testatrix—that is (in this case) to put the home place in trust to support and educate her two nephews. Appellant cites cases from other jurisdictions in support of its position, but we find them unconvincing. In our opinion the issue here presented is controlled and must be resolved against appellant by our own decision in the case of Mee v. Cusineau, Executrix, 213 Ark. 61, 209 S. W. 2d 445. In that case we said:

“At § 341, 28 R.O.L. 345, appears statements of the law to the following effect. The distinctive characteristic of a specific legacy is its liability to ademption. If the identical thing bequeathed is not in existence, or has been disposed of so that it does not form a part of the cootator’s estate, at the time of his death, the legacy is extinguished or adeemed, and the legatee’s rights are gone. ’ ’

The Court then set out the basis for the above rule of law:

The reason for this rule as stated in the numerous cases cited in the note to § 543, 68 C.J. 844, is that as the testator no longer owns the property specifically devised, there is no property for the devisee to take, and also that subsequent conveyance of the property by testator after having made a specific devise of it indicates conclusively a change of testimentary intent as to that property.”

It is our opinion that the above reasoning is logical and practical, and that it should be followed for the sake of clarity and uniformity. It is applicable to the facts of this ease because the description of the Izard Street property is definite and could not be confused with the description of the Rice Street property. The Izard Street property was sold by Miss Owens almost a year before she died without having made any change in her will.

Accordingly, the order of the trial court is affirmed.

Affirmed.


text:
    Aden v. State.
    5078
    376 S. W. 2d 277
    Opinion delivered March 9, 1964.

      E. L. Holloway, for appellant.

      Bruce Bennett, Attorney General, By Russell J. Wools, Asst. Atty. Gen., for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a conviction for voluntary manslaughter. Appellant Joseph Franklin Aden lived on a farm supervised by the deceased, Willis Cole, and had worked for Cole. A day or two before Aden shot Cole, Aden had started picking, cotton for a Mr. Collier.' The evening of September 18, 1962, Cole with his nephew went to Aden’s house where Cole determined, with anger, that Aden was working for Collier and that Aden planned to move from Cole’s farm the following weekend. Their conversation took place beside Cole’s truck. Aden testified that as he started to run back into the house, Cole hit him on the back of the head with a blackjack or something and knocked him to one knee. Cole then drove off. Aden went into his house, picked up his shotgun and a shell and drove to his parents’ home. Aden and his father testified that they examined his head and his mother insisted that he go to a doctor; that Aden and his father then drove to the nearest doctor, who was not at home; that Aden then decided to go home and pick up his wife and find another doctor; and that after passing Cole’s truck on the highway, Aden went to a gas station where he was backing up to a pump to get gas and air for a low tire when Cole’s truck pulled in. The testimony is in conflict as to whether Cole or Aden got out of his. vehicle first with a gun,.but there is little conflict in testimony that Cole shot first, either once or twice, before Aden shot. Aden’s shot hit the truck’s open door behind which Cole was standing, which in turn deflected the shot up into Cole’s right arm pit and side. Cole 'died shortly thereafter still holding a cocked pistol.

On September 19th, an information was filed in Randolph Circuit Court against Aden, charging him with murder in the first degree. He was tried on December 6, 1962, and because the jury could not agree on a verdict, a- mistrial was declared. Then the case was set for trial January 21, ,1963. At the close of this trial, the jury found appellant guilty of the crime of voluntary manslaughter and fixed his punishment at four years in the penitentiary. From the order on this verdict, appellant has prosecuted this appeal. For reversal appellant urges that the trial court erred in excluding the testimony of John Hannaford, who would testify that on the day before the killing the deceased told him that he, Cole, was going to kill appellant if he did not move (from his premises).

At commencement of trial appellant requested that the rule be invoked and all witnesses excluded from the court room. On the second day of trial during a recess, appellant’s counsel learned what John Hannaford could testify to and immediately had him subpoenaed, sworn and sent to the witness room. This witness had sat in the court room during most of the trial up to the time, he was subpoenaed, and had also heard most or all of the first trial. When appellant called Mr. Hannaford to testify, the State objected on the ground that he had been present in the court room during most of the trial and his testimony should therefore be excluded. The trial court stated (in its Findings following a motion for new trial): “In view of the fact the witness had been in attendance during both trials and there was testimony in the record concerning threats or alleged threats by the deceased to do. violence to the defendant, and the defendant testified that certain threats had been communicated to him, the court felt that in view of what had transpired, that the State’s objection should be sustained and the offered testimony excluded. It was the thinking of the court that if the Rule and the exclusion of witnesses from the court room during the taking of the testimony meant anything, that the objection of the State should be sustained.”

Harris v. State, 171 Ark. 658, 285 S. W. 867, deals directly with this situation. Among the number of authorities cited and quoted with approval therein is the following:

“In 14 Encyclopedia of Evidence, chapter ‘Witnesses,’ page 598, it is said: ‘The better rule seems to be that a witness is not disqualified from testifying by reason only of his having disobeyed, an order of exclusion, that his testimony ought not to be rejected and the party who called him deprived of his testimony where such party is himself without fault; but that such violation should only affect this witness’ credibility, or subject him to punishment for contempt.’ ” The applicable rule in the Harris case has been succinctly summarized as follows:

“Where counsel for accused did not know until a few minutes before offering testimony that witnesses would testify to certain facts, and for that reason they had not been called as witnesses and put under the rule, refusal to permit them to testify was an abuse of discretion, where they were offered before the close of testimony. ’ ’

For the error indicated it is necessary to reverse this case and remand the cause for new trial.

Reversed and remanded.


text:
    Hooten v. DeJarnatt.
    5-3173
    376 S. W. 2d 272
    Opinion delivered March 9, 1964.

      Pope, Pratt <& Shamburger, By Don Ryan, Robert Ross, for appellant.

      Gockrill, Laser, McGehee é Sharp, for appellee.
   Frank Holt, Associate Justice.

The appellant, Moody C. Hooten, brought suit against the appellee, J. W. DeJarnatt, for personal injuries and property damages sustained by him as a result of the appellee driving his automobile into the rear of a tractor which appellant was driving upon a highway. The appellee responded by appropriate pleadings and sought recovery for personal injuries and property damage sustained by him. The issues were submitted to a jury which denied any recovery to either litigant. From a judgment on this verdict appellant brings this appeal. There is no cross-appeal.

The appellant first contends that the trial court erred by admitting in evidence the deposition of Mrs. Thigpen as to her near collision with the appellant preceding the collision between appellant and appellee. The appellant argues that this near collision is a collateral issue to the actual collision. After making certain deletions, the trial court admitted the deposition in evidence over the objection of appellant that none of the balance of her testimony was relevant. It appears that the near collision between Mrs. Thigpen and the appellant occurred approximately one-fourth mile from and one minute before the collision between the appellant and appellee. Mrs. Thigpen testified that as she topped an incline she suddenly saw appellant, proceeding in the same direction, driving his tractor on the paved portion of the highway, and that she was able to avoid a collision by coming to almost a complete stop before the oncoming traffic permitted passage; that no part of appellant’s tractor was on the shoulder of the road; and that since it was dark she had her headlights on as did oncoming traffic. However, appellant testified that at all times he had the right front and right rear wheels of his tractor off the pavement riding the gravel shoulder of the road; and that it was not dark enough at the time of the actual collision to require the use of headlights.

We have held that where the sequence of events is not too remote in distance and time, then the preceding-act or occurrence is admissible for the purpose of showing one continuing act or the probability that the circumstances of the preceding occurrencé continued to exist at the time of the subsequent occurrence. Therefore, such preceding occurrence has some relation to the actual mishap. Missouri Pacific Transportation Co. v. Mitchell, 199 Ark. 1045, 137 S. W. 2d 242; Wagnon v. Porchia, 235 Ark. 731, 361 S. W. 2d 749; Jelks v. Rogers, 204 Ark. 877, 165 S. W. 2d 258; Brooks v. Bale Chevrolet Co., 198 Ark. 17, 127 S. W. 2d 135. We think Mrs. Thigpen’s testimony was clearly admissible for the purpose of showing one continuing act or as a circumstance which tended to show the probability of the conditions existing at the time of the collision.

Furthermore, another witness, Mrs. Kurkendall, was permitted to testify without objection that she had a near collision with appellant as she came upon him from the rear; that she didn’t see any lighting on the tractor although it was dark enough to require the use of her lights and that all she was able to discern as she passed him was a form which appeared to be a man on a tractor. Since no objection was made to her testimony, the Thigpen incident being closer in time and distance to the actual collision, we perceive no prejudicial error could result from the admission in evidence of the. Thigpen deposition.

The appellant next contends that the trial court erred in giving appellee’s Instruction No. 4. This instruction related to the statutory requirement, Ark. Stat. Ann. § 75-702 (a) and § 75-709 (d) (Supp. 1963), that farm tractors mint be equipped with headlights. It is undisputed that the appellant .had no headlights on his tractor. Appellant argues that there was no evidence that the absence of these headlights was the proximate cause of the collision. We cannot agree. The collision occurred at approximately seven P.M. on March 29, 1962. There was evidence that it was misting rain and dark, that appellee and the drivers of other vehicles were using their headlights. Appellee testified he did not see a red light on the rear of appellant’s tractor at the time of the collision, although appellant presented evidence that the red light was in use. The diffusion of light from head lamps undoubtedly aids overtaking as well as approaching motorists and certainly would assist motorists under such driving conditions as existed at the time of this collision. There was a sixteen-foot shoulder at the site of the collision which head lamps could have made more readily discernible. This instruction was responsive to the evidence in this case and properly permitted the jury to determine if the absence of headlights was a proximate cause of the collision.

The appellant also questions the clarity of this instruction. We do not think it is susceptible to this objection. Further, the court gave appellant’s Instruction No. 10 to the clear effect that the jury could not consider the violation of this statute or the absence of headlights as evidence of negligence unless the jury found by a preponderance of the evidence that such was. a proximate cause of the collision.

Appellant next argues that the trial court erred in giving appellee’s Instruction No. 5A which reads:

“No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.”

This instruction is based upon Ark. Stat. Ann. § 75-604 (a) (Supp. 1963) entitled “Minimum Speed Regulation”. The appellant urges that this is an abstract statement of the law or is not responsive to any evidence since the collision involved only one tractor and one automobile with no other vehicles being involved. Appellant testified he was traveling approximately fourteen miles per hour. Appellee testified that his speed was approximately fifty miles per hour at the time he first observed appellant about twenty-five steps ahead of him. Appellant admitted that he was familiar with this road and knew it was heavily traveled. The appellee testified that there was oncoming traffic at the time of the collision which made it impossible for him to go around the appellant. It is admitted by appellant that appellee would have had to cross the center line to pass him. There was evidence by two witnesses, Mrs. Thigpen and Mrs. Kurkendall, that preceding the collision they almost drove into the rear of appellant’s tractor. As stated, the shoulder was sixteen feet wide at the scene of the accident. We think the instruction was proper.

The appellant next contends for reversal that the trial court erred in refusing to amend appellee’s Instruction No. 7 as requested by appellant. This instruction defined the duty of a driver of a vehicle when confronted with an emergency not created by his negligence. Appellant requested the court to include in this instruction the duty of care when the emergency is created by the driver’s own negligence. Appellant argues he “was entitled to have it made clear that this emergency rule would not apply if [appellee] was negligent in creating the emergency.” This instruction clearly tells the jury in two places that the emergency rule is only available to a driver who is confronted with an emergency “not the result of his own negligence”. It was unnecessary to reiterate by separate paragraph or additional words that the emergency rule is not available when the emergency is created by the driver’s own negligence.

Finding no reversible error, the judgment is affirmed.


text:
    Pyramid Life Ins. Co. v. Hamilton.
    5-3228
    376 S. W. 2d 555
    Opinion delivered March 16, 1964.

      Ben D. Lindsey, for appellant.

      Shackleford S Shackleford, for appellee.
   Carleton Harris, Chief Justice.

This appeal involves a judgment entered by the Union County Circuit Court against appellant, Pyramid Life Insurance Company, and in favor of Ralph L. Hamilton, appellee, in the amount of $110.75. The sole question on direct appeal is whether the company was liable for sick benefits under a policy that it had issued to Hamilton. The trial court, sitting as a jury, held against appellant, and from the judgment so entered comes this appeal. Appellee cross appeals, contending that the attorney’s fee awarded counsel for Hamilton was insufficient.

We are unable to consider this appeal on its merits since Rule 9 (d) has not been complied with. On numerous occasions, this court has stated that we are not required to explore the transcript, but rather, that the duty rests upon an appellant to furnish this court such an abridgment of the record as will enable us to understand the matters presented. See Vire v. Vire. 236 Ark. 740, 368 S. W. 2d 265, and cases cited therein.

In the present case, there is no abstract of the judgment, pleadings, or testimony, and only one section of the policy is mentioned, this appearing in appellant’s statement of. the case. The transcript covers over 80 pages, and in situations of this kind, we have heretofore uniformly affirmed the trial court’s decree or judgment.

Appellee, on cross-appeal, asserts that the fee allowed appellee’s attorney in trial court ($100.00) was inadequate. Considering the amount of the judgment rendered, we cannot say that the trial court was in error in reaching this figure. For services rendered on this appeal, we feel that an additional $100.00 should be allowed.

It is so ordered.

Affirmed on both direct and cross-appeal.


text:
    Priola v. Priola.
    5-3204
    377 S. W. 2d 29
    Opinion delivered March 16, 1964.
    [Rehearing denied April 20, 1964.]

      Edwin E. Btmatvay, Jack Holt, Sr. and John F. Park, for appellant.

      Bose, Meek, House, Barron & Nash, By John H. Iictley, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a will contest. The facts are stipulated, and the only question to be decided is whether this case is ruled by Green v. Smith, 236 Ark. 829, 368 S. W. 2d 280.

Oil May 23, 1961 Mrs. Nancy Priola undertook to execute a will. She could not write and she signed by mark. She had two living sons (Mark and Jack Priola) and also had the descendants of some of her deceased children. By her attempted will she left $5.00 to each of the descendants of her deceased children and left the entire remaining estate to her two living sons, Mark and Jack Priola. Mrs. Nancy Priola departed this life on March 10, 1963, and in due time her purported will was offered for probate, which was supported by Mark and Jack Priola, the appellants here, and resisted by the appellees, Joseph Priola et al., who are the descendants of the deceased children of Mrs. Nancy Priola. The Probate Court rejected the will for probate, holding:

‘ ‘ The instrument proffered for probate in this cause, having been witnessed by only two persons who signed both as witnesses to the mark and as attesting witnesses to the Will, does not meet the requirements of Arkansas Statutes Annotated § 60-403, that a minimum of three subscribing witnesses is required to make the Will in question valid.”

Jack and Mark Priola have appealed; and they state their point as follows:

“I. The Probate Court erred in holding that the will of Nancy Priola, deceased, was not executed in compliance with the provisions of Ark. Stat. § 60-403, and in rejecting said will for probate, (a) Green v. Smith, 236 Ark. 829, does not construe subsections (a) (3) and (a) (5) of § 60-403, Arkansas Statutes, as in the construction placed upon them by the trial court.

(b) Whether there be two or more witnesses to the execution of a will is optional.

(c) There is no disqualification in the statute of one who signs as a witness to the testator’s mark, as one of the required attesting witnesses.”

As aforesaid, Mrs. Priola was unable to write her name and she signed by mark. There were two witnesses to the mark; and the same two persons who witnessed the mark also acted as attesting witnesses to the will. There were no other persons who signed as witnesses to the mark or the will. In short, each of the two persons acted in a dual capacity; that is, a witness to the mark and an attesting witness to the will; and such acting in dual capacity is exactly what we held could not be done in Green v. Smith, supra. There, in discussing the requirements of Ark. Stat. Ann. § 60-403 (Supp. 1963), we said:

“Appellee contends that either or both of the attesting witnesses can, in addition to executing the Proof of Will, serve the purpose of being a witness to the testator’s mark since they observed him make his mark. We cannot agree. Sub-section (3) plainly provides that a testator’s signature by mark must be witnessed by a person who writes his own name as a witness to that signature. Sub-section (5) which follows, and is in addition to the requirement of (3), provides significantly that in case sub-section (3) is followed, such act ‘must be done in the presence of two or more attesting witnesses.’ In other words, there are four methods for a testator to sign his will and, as we construe this statute, when we consider it as a whole and sub-section (5) in particular, there must be at least two attesting witnesses in addition to the requirements of either of these four methods. We interpret the provisions of sub-sections (3) and (!5) of this statute to be mandatory in requiring a minimum of three subscribing witnesses to make the will in question valid.”

Appellants cite and earnestly rely on Bocquin v. Theurer, 133 Ark. 488, 202 S. W. 845, wherein we held that a witness to the mark could also be an attesting witness to the will. But that case was decided in 1918 when the governing statutes were § 8012 and § 8013 Kirby’s Digest of 1904, which sections later became § 14512 and § 14513 of Pope’s Digest of 1937. The present governing statute is Art. Stat. Ann. § 60-403 (Supp. 1963), which is § 19 of Act No. 140 of 1949. It will be recalled that Act No. 140 of 1949 is the Probate Code.

When we compare § 14512 and § 14513 of Pope’s Digest1 (the previous statutes on the mode of executing a will) with § 19 of Act No. 140 of 1949 as found in Ark. Stat. Ann. § 60-403 (Supp. 1963) (the present statutes on the requirements for executing a will), the correctness of our holding in Green v. Smith, supra, becomes readily apparent. The old statute said in § 14513 Pope’s Digest that the person who wrote the testator’s name “shall write his own name as a witness to such will”; thus recognizing that the same person could write the testator’s name and also be a ivitness to such ivill. But the new statute (§ 19 of Act No. 140 of 1949) says in Paragraph (5) that the person who writes the testator’s name must do so “in the presence of two or more attesting witnesses ’ ’; and certainly such person who writes the testator’s name cannot be an attesting witness to his own signature. In short, the attesting witness to the testator’s mark cannot also act in the dual capacity of an attesting witness to the will. We affirm our holding in Green v. Smith, supra.

The Probate Judgment is affirmed.

Holt, J., not participating.

       Sections 14512 and 14513 of Pope’s Digest read: “§14512. Mode. Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner,
      “First. It must be subscribed by the testator at the end of the will, or by some person for him, at his request.

        Second. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses.
      “Third. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his will and testament.
      “Fourth. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.
      “Fifth. Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator or testatrix, such will may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of each testator or testatrix, notwithstanding there may be no attesting witnesses to such will; but no will without such subscribing witnesses shall be pleaded in bar of a will subscribed in due form as prescribed in this act.
      “§ 14513. Signature of witness. Every person who shall sign the testator’s name to any will, by his direction, shall write his own name as a witness to such will, and state that he signed the testator’s name at his request.”


author: George Kose Smiti-i, J.

text:
    Mid-State Homes, Inc. v. Knight.
    5-3200
    376 S. W. 2d 556
    Opinion delivered March 16, 1964.

      Russell £ Hurley, for appellant.

      W. J. Dungan, J ames F. Daugherty, for appellee.
   George Kose Smiti-i, J.

This is a foreclosure suit brought by the appellant upon an installment note and mortgage that originally evidenced a debt of $3,830.40. According to the complaint the indebtedness had been reduced to $1,980.80 when this suit was filed in 1962. The chancellor found the transaction to be void for usury and upon that ground alone entered a decree for the defendants, Ellis Knight and his wife. The appellant argues only the issue of usury, while the appellees urge several reasons for an affirmance of the decree.

The note was payable in 72 monthly installments of $53.20 each, which included both principal and interest. The chancellor, in holding the instrument to be usurious, apparently based his decision upon the fact that the appellant had exercised its option to accelerate the maturity of future payments and had filed suit for the full amount without making any deduction for the interest that had not yet accrued. This procedure, however, did not render the transaction usurious. In such a situation the court should merely refuse to permit the creditor to recover the unaccrued interest. Eldred v. Hart, 87 Ark. 534, 113 S. W. 213; Sager v. American Investment Co., 170 Ark. 568, 280 S. W. 654.

The note was originally payable to Jim Walter Corporation, a Florida company which had contracted to build a house for the Knights for an agreed consideration of $2,945.00. Knight testified that the total expense for materials and labor should have been only about $1,600.00. Even so the appellees are in error in contending that this disparity rendered the note usurious. The corporation did not make a loan to the Knights. It simply agreed to build a house according to certain plans and specifications for the sum of $2,945.00. The fact that the builder’s profit may have greatly exceeded 10 per cent of the contract price has no bearing upon the issue of usury, which is ordinarily defined as an excessive charge for the loan or forbearance of money.

It is also insisted that the note and mortgage are unenforceable because neither Jim Walter Corporation nor the appellant, both Florida corporations, was licensed to do business in Arkansas when the contracts were executed. We take judicial notice of records required to be kept by the Secretary of State. Public Loan Corp. v. Stanberry, 224 Ark. 258, 272 S. W. 2d 694. These records show that Jim Walter Corporation was licensed to do business here on September 30, 1957, which was more than a year before the date of the construction contract and the note and mortgage. It is true that the appellant, apparently a finance company, was not then authorized to do business in Arkansas, but there is no proof that the company has done any business here. That the two corporations have the same officers and directors and the same postoffice address is not in itself sufficient to destroy their existence as separate entities. See Rounds & Porter Lbr. Co. v. Burns, 216 Ark. 288, 225 S. W. 2d 1.

The appellees’ final contentions are that the note and mortgage are invalid for the reason that Knight’s name was signed by his minor son and for the further reason that the mortgaged property is not correctly described. As to the signature, the Knights’ attorneys have overlooked the fact that one of them made this announcement during the trial: “We ratified the boy’s signing of the note. We ratified it. And we are not going to raise the question that he is not liable for that reason. ’ ’ As to the description, if it is defective the purchaser at the foreclosure sale may not acquire a good title, but that fact is not a basis for exempting the Knights from liability upon their obligation.

We find the Knights to be in default, but we cannot with certainty fix the amount new due. The cause will accordingly be remanded for further proceedings.

Reversed.