text:
    James CADLE and Robert PIERCE v. Bill CAUTHRON, Sheriff of Sebastian County, Arkansas
    CR 79-98
    584 S.W. 2d 6
    Opinion delivered July 9, 1979
    (In Banc)

      Don Langston, for appellants.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellants were arrested in Logan County, Arkansas, without a warrant, on February 8, 1979. They were apprehended by local, state and federal officers and taken to Paris, Arkansas, for questioning. A few hours later they were taken to Franklin County, placed in jail, and moved to the Sebastian County jail on February 13, 1979, where they remain at this time. Appellants admit the sheriff stated he was holding them for Florida. A few days later a deputy sheriff requested them to sign extradition papers in order to be returned to Florida but the request was rejected. Appellants deny any knowledge of the nature of the cause for which they were being held or having been given an opportunity to go before a magistrate. On April 25, 1979, the Governor of Arkansas issued his arrest warrant to the Sheriff of Sebastian County wherein he directed the sheriff to hold the appellants for the executive authorities in Florida. Attached to the warrant were supporting papers for the requisition by the Governor of Florida. Also, a letter from the Governor of Arkansas was delivered to appellants stating they were being held as fugitives and further explaining their rights. On April 30, 1979, they filed a petition for a writ of habeas corpus. May 1, 1979, the Circuit Court of Sebastian County denied the petition. Appellants appeal on the grounds of denial of constitutional and statutory rights by reason of never having been afforded a preliminary hearing before a magistrate nor being allowed to appear for an extradition hearing before the governor or his representative.

Extradition hearings are not criminal proceedings even though much of the subject matter dealt with is criminal in nature. In order to understand extradition proceedings it is necessary to set out the constitutional and statutory authorities affecting such matters. The U.S. Const., art. 4 § 2, cl. 2, states:

A person charged in any State with Treason, Felony or other Crime, who shall flee from Justice and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

Extradition proceedings are matters involving the various states and territories as well as cooperating foreign countries. Therefore, federal statutes are controlling to a large extent. 18 USC § 3182 provides:

Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.

From reading the above authorities it is apparent the only requirement the United States Constitution contains is that upon demand of the executive authority of the demanding state the executive authority of the asylum state is bound to deliver a fugitive. The United States Code adds very little to the constitutional requirement. It does add something to the procedure in that it requires the executive authority of the demanding state or territory to produce a certified or authenticated copy of the indictment, or affidavit, before a magistrate, charging the person being sought with having committed treason, felony, or other crime within the demanding state, whereupon the executive authority of the asylum state is required to cause such accused to be arrested and secured for the purpose of being delivered to the demanding state. Neither the United States Constitution nor the United States Code require any particular type proceeding concerning extradition matters. Therefore, the details for extradition proceedings are left to the various states and territories. Arkansas has adopted the Uniform Criminal Extradition Act, which is 1935 Ark. Acts No. 126, and codified as Ark. Stat. Ann. §§ 43-3001 - 3030 (Repl. 1977). This statute provides it is the duty of the Governor of Arkansas to have the person arrested delivered to the executive authority of the demanding state. It also sets out the requirements of the demanding state. We do not discuss the requirements of the demanding state because appellants admit the validity of the actions of the executive authority of Florida in this case. In passing, we might mention that upon examination the requisition and supporting papers completely comply with the Uniform Criminal Extradition Act.

Ark. Stat. Ann. § 43-3007 (Repl. 1977) provides that if the Governor of Arkansas decides to comply with the requisition he shall direct the sheriff, marshal, coroner, or any other person he deems fit to arrest the accused. The warrant must state facts necessary to the validity of the issue. Ark. Stat. Ann. § 43-3010 (Repl. 1977) requires the accused must be notified of the nature of the demand; the crime for which he is charged; his right to demand counsel; and his right to contest the extradition. If the accused, or anyone on his behalf, contest the extradition, the accused shall be taken forthwith before a judge of a court of record who shall set a time within which the accused may apply for a writ of habeas corpus. When the petition for habeas corpus is filed, there must be a notice of the time and place for the hearing on said petition and such notice shall be given to the accused and the prosecuting attorney and to the agent of the demanding state.

Appellants also argue that Ark. Stat. Ann. § 43-3014 (Repl. 1977) gives a person who is arrested without a warrant the right to be taken before a judge or magistrate with all practicable speed. They further argue that Ark. Stat. Ann. § 43-3016 (Repl. 1977) provides an accused shall be admitted to bail unless the offense with which he is charged is punishable by death or life imprisonment.

We concede the last mentioned procedures have not been met in this case. The requisition from Florida shows upon its face the appellants are not. charged with an offense which is punishable by death or life imprisonment. We also note that the record does not contain any allegation that appellants demanded any hearing prior to the filing of the petition for a writ of habeas corpus. Due to the nature of extradition proceedings and their heavy reliance upon federal authority, we will first discuss the facts of this case as related to federal procedures.

As previously noted, neither the constitution nor the United States Code require a hearing before a court of record or a magistrate nor do they require appellants be admitted to bail. A case somewhat analogous to the present one was considered by the United States Supreme Court in Gerstein v. Pugh, 420 U.S. 103 (1975). In Pugh the court attempted to find a standard which balanced the individual’s right to liberty and the state’s duty to control crime. The court held that a probable cause determination is not a “critical stage” of the prosecution which would require appointment of counsel to represent the accused. Such hearings were held to be non-adversary in nature. If this be true in an ordinary criminal proceeding, certainly it is true in extradition hearings where the statutes and proceedings are liberally construed.

We think we should call attention to the case of Biddinger v. Commissioner of Police, 245 U.S. 128 (1917). This was an extradition proceeding wherein the accused brought a habeas corpus petition to obtain his discharge on the ground that he was not a fugitive. The court pointed out that extradition had been mentioned in the Articles of Confederation of 1781 in almost the identical terms as they are embodied in art. 4 § 2 of the present constitution. The court explained that an extradition proceeding is for the purpose of providing a summary executive proceeding by the use of which the various states could promptly aid each other in bringing to trial persons accused of crime by preventing their finding asylum in another state in order to avoid the process of justice in the state in which the crime was allegedly committed. The opinion further pointed out the extradition clause was designed to eliminate boundaries of the state, in a sense, to the end that each may reach across its border and bring offenders of its law to a speedy trial regardless of what portion of the country the fugitive may have taken refuge. This being the purpose, the laws on this subject are not to be narrowly and technically construed by the courts as if they were penal laws but should be liberally construed to the effect that their purpose would be obtained without unreasonable delay, it is to be remembered that one held for the executive authority of another state is not being delivered to a foreign nation where his rights might be entirely violated but is simply being-transferred to a sister state where he remains under the full protection of the federal and state constitutions and will be guaranteed all of his rights in the state to which he is returned and where the offense was allegedly committed. In Appleyard v. Massachusetts, 203 U.S. 222, 227, (1906), the Court stated:

A person charged by indictment or by affidavit before a magistrate with the commission within a State of a crime covered by its laws, and who, after the date of the commission of such crime leaves the State — no matter for what purpose or with what motive, nor under what belief — becomes, from the time of such leaving, and within the meaning of the Constitution and the laws of the United States, a fugitive from justice, and if found in another State must be delivered up by the Governor of such State to the State whose laws are alleged to have been violated, on the production of such indictment or affidavit, certified as authentic by the Governor of the State from which the accused departed. Such is the command of the Supreme law of land, which may not be disregarded by any State.

In Innes v. Tobin, 240 U.S. 127 (1916) it was held that the constitutional and federal statutory provisions were enacted for the purpose of controlling interstate rendition in extradition proceedings and their provisions were intended to be dominant and, so far as they operated, controlling and exclusive of state power. Therefore, we say that if there is a conflict between the state and federal authorities, federal authorities control in extradition proceedings.

We return to Arkansas cases for further discussion. We held in Dillard v. State, 260 Ark. 743, 543 S.W. 2d 925 (1976), that where an accused was afforded the right to be taken before a magistrate immediately for the purpose of fixing bail it was directory and not mandatory. Also, in Clubb v. State, 230 Ark. 688, 326 S.W. 2d 816 (1959), we held an arrest without a warrant was valid if the officer had reasonable grounds to believe that the accused had committed a felony and, where the accused subsequently entered a plea, he had waived the right to object to his arrest without a warrant. We dealt with an extradition proceeding in the case of Glover v. State, 257 Ark. 241, 515 S.W. 2d 641 (1974), and therein held that laws pertaining to extradition were to be construed liberally rather than strictly as they are in criminal statutes. We reached the same result in Hammond v. State, 244 Ark. 186, 424 S.W. 2d 861 (1968), and Harris v. State, 259 Ark. 187, 532 S.W. 2d 423 (1976). The case of Bolden v. State, 262 Ark. 718, 561 S.W. 2d 281 (1978), concerned the failure to take a person before a judge or magistrate without delay. We noted that Rule 8.1, Ark. Rules of Criminal Procedure (1976), does not dictate dismissal of charges upon the failure to afford an accused a hearing before a magistrate as required by rule or statute. We further held that illegal arrest or detention did not void a subsequent conviction.

From the above authorities it can easily be seen that appellants had the right to be taken before a magistrate and to have bail fixed at any time prior to the issuance of the governor’s warrant. However, after the issuance of the governor’s warrant the only proceeding available to an accused, in an extradition proceeding, is by petition for a writ of habeas corpus and the only matters for the court to consider in such case are the identity of the accused and if he is a fugitive. Glover, supra. The appellants were afforded this hearing and the court made a ruling adverse to their contention. Both appellants admitted their identity and that they escaped from the Florida prison.

The Governor of the State of Arkansas is not required by the constitution or statute to make an investigation outside the record nor to hold a hearing to allow the accused to present his views. If the papers furnished by the demanding state supply the necessary information, it is not necessary for the governor to look further. The requisition and supporting papers furnished by the executive authority of Florida clearly meet the constitutional and statutory requirements to allow the Governor of Arkansas to issue his warrant. The appellants have no constitutional right to an extradition hearing before the governor. Munsey v. Clough, 196 U.S. 364 (1905). We agree with the appellee that a hearing before the governor is a matter of grace, not a matter of right. Everything which has been said concerning a fugitive from justice applies equally to an escapee from prison who has fled the state of his conviction. We, therefore, affirm the denial of bail and habeas corpus in this case and state that the executive authority for the State of Arkansas is at liberty to return the appellants to the fugitive state whenever the opportunity arises.

Affirmed.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Ernest SIMS v. STATE of Arkansas
    CR 79-74
    585 S.W. 2d 924
    Opinion delivered September 4, 1979
    (Division I)

      John Achor, Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was found guilty by a jury of both burglary and theft of property (a misdemeanor) and was sentenced to imprisonment for 40 years in the state penitentiary for burglary and 12 months in the county jail for theft. On this appeal, he questions the sufficiency of the evidence to support the verdict. Appellant contends that the circumstantial evidence was sufficient only to raise a suspicion of his guilt, but not to support a reasonable conclusion of guilt. His first argument is based upon the lack of evidence on certain points. These evidentiary deficiencies were certainly sufficient basis for an argument to the jury pn the question of reasonable doubt. They were:

1. No evidence by any showing of a similarity in size, tread design or otherwise, tending to establish that the footprints observed at and around the scene of the crime were made by appellant’s shoes.
2. No evidence placing appellant inside the burglarized warehouse from which the theft was made.
3. No evidence of appellant’s having possession or exercising unauthorized control over any of the property missing from the warehouse or having operated the vehicle in which some of the missing property was found.
4. No fingerprints being offered into evidence in spite of the fact that an air conditioner that was recovered was inspected for fingerprints.

Even though there was no direct evidence of any of the above listed items, when the evidence is viewed in the light most favorable to the state, there was a reasonable basis for the jury’s conclusion that appellant entered the Weyerhauser warehouse in North Little Rock with the purpose of committing theft of property therein and that he did commit the theft. Viewed in that light, it was shown that:

At about 7:20 p.m. on July 10, 1978, Harold Propps, the warehouse foreman of the Weyerhauser Company in North Little Rock, went to pick up his lunch box, which he had forgotten to take home with him. The building had been closed since 4:30 p.m. Propps heard a noise inside the building and then discovered that his lunch box had been rifled. He stepped outside and again heard a noise. The first noise was like that of a train. The second was like a door being opened or closed. Propps then called the police, who arrived within two or three minutes. Propps saw a hole in the wall of the warehouse and pieces of sheetrock, the largest of which was about two feet square, lying around. He discovered an air conditioner was missing from the office and a tool box and CB radio, from the truck he had used that afternoon. The trucks are kept inside the locked warehouse.
Patrolman Leone and Officer Sipes responded to the call by Propps. They found a hole, about three feet square, in the inside west wall of the warehouse and a piece of sheetrock lying on top of some building materials. They also found a white “powdery” substance in the area. They saw footprints made by a “sneaker-type” shoe on the sheetrock, building materials and in the dirt near an exit door at the west end of the building. The officers followed the footprints for about 50 feet to a viaduct, where they found the air conditioner identified by Propps, propped against a concrete pillar. They continued to follow the footprints and found that they led to an automobile, parked about 75 feet away in the Weyerhauser parking lot. This automobile bore a license plate issued to Ernest Sims. As the officers made a visual inspection of the vehicle, Leone observed appellant, Ernest Sims, walking very slowly across the overpass of the viaduct. As Sims walked away from the officers, he kept turning and looking back at them. About 30 minutes later appellant Sims and another man drove up in an automobile. Sims said he had come to “jump-start” his car, which he said had broken down. In answer to an inquiry by Leone, Sims said he owned the automobile. Leone observed that Sims was wearing a “sneaker-type” shoe, Leone had called for a city wrecker to remove the automobile before Sims returned. Leone placed Sims under arrest and impounded the automobile. In its truck, he found a tool box and CB radio, which were identified by Propps as the property he had described as missing. Leone had observed a white “powdery” substance in Sims’ hair at the time of the arrest. Leone was able to start Sims’ automobile, without any difficulty, by the use of an ignition key he found on Sims’ person.

Appellant argues that this evidence left the jury to speculation and conjecture only in arriving at its verdict. He suggests that many reasonable hypotheses consistent with his innocence may be imagined, but he does not suggest one. The evidence was such that the question whether it excluded every other reasonable hypothesis was for the jury. See Smith v. State, 264 Ark. 874, 575 S.W. 2d 677; Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733. Consequently, there was no error in denial of appellant’s motion for a directed verdict.

The judgment is affirmed.

We agree. Harris, C.J., and George Rose Smith and Hickman, JJ.

      The jury found that Sims had been convicted of four prior felony offenses.


author: George Rose Smith, Justice.

text:
    NORTHWESTERN NATIONAL INSURANCE COMPANY v. AMERICAN STATES INSURANCE COMPANY
    79-63
    585 S.W. 2d 925
    Opinion delivered September 10, 1979
    (Division I)

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellant.

      Lowe & Hamlin, for appellee.
   George Rose Smith, Justice.

Under our 1973 No-Fault Insurance Act an insurance company which makes a no-fault payment to its own insured is entitled to a lien upon, and a right of reimbursement from, any tort recovery obtained by its insured, less the insurance company’s proportionate part of the costs of collection. Ark. Stat. Ann. § 66-4019 (Supp. 1977). In this dispute between two insurance companies Northwestern, which had a lien under the statute, contends in effect that it was entitled to a full recovery without paying its part of the costs of collection. The circuit judge, sitting as a jury, rejected that contention, and we agree.

Northwestern, the plaintiff, issued an automobile liability policy to Walter and Lucille Stacey. The policy contained the no-fault medical and income benefits specified by the statute. § 66-4014. The Staceys were injured in a collision between their car and one driven by Bennie Ivory. Northwestern paid the Staceys $6,425.78 under the policy.

Later on the Staceys employed James C. Cole as their attorney and brought suit against Ivory and his wife in Hot Spring county. The appellee, American States, was Ivory’s liability insurer. American States settled the case by paying the full amount of its policy, $28,500, with the check being made payable jointly to the Staceys and Cole. Northwestern had notified Cole of its claim. Cole’s fee was 30% of the amount recovered. Cole sent Northwestern a check for $4,-498.05, the amount of Northwestern’s subrogation claim less Cole’s 30% fee. Cole made the same 30% deduction from the Stacey’s share of the money.

Before the settlement Northwestern’s representative, Richard Greenlee, had discussed its claim with American States’ representative, William Plummer. Greenlee testified that in a telephone conversation Plummer promised to protect Northwestern’s subrogation interests. Plummer denied having made such a promise. The trial judge found, in rendering his decision, that there was no oral contract by American States to protect Northwestern’s claim free of any expense to it.

Regardless of the oral agreement, Northwestern argues that American States had notice of Northwestern’s lien and should have protected it in any of several suggested ways. One suggestion is that American States should have included Northwestern as a joint payee of the settlement check, “so that it could not be cashed except on terms satisfactory to the Staceys, their attorney and Northwestern.”

We do not see that Northwestern has any basis for complaint. Subrogation is governed by equitable principles. Washington Fire & Marine Ins. Co. v. Hammett, 237 Ark. 954, 377 S.W. 2d 811 (1964). Under the statute Northwestern’s claim was burdened with its proportionate part of the costs of collection. § 66-4019, supra. There can be no doubt that costs of collection include reasonable attorneys’ fees. Maxcy v. John F. Beasley Constr. Co., 228 Ark. 253, 306 S.W. 2d 849 (1957); Winfrey & Carlile v. JVickles, 223 Ark. 894, 270 S.W. 2d 923 (1954). Northwestern makes no contention that Cole’s fee of 30% is unreasonable. Consequently, even if American States had included Northwestern as a payee of the settlement check, Northwestern would still have had no equitable claim to its share of the money without first paying its part of Cole’s fee. That precise result was actually reached; so Northwestern’s argument is without merit.

Affirmed.

We agree. Harris, C.J., and Fogleman and Hickman, JJ-


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Owen YANDELL and his wife v. HAVANA BOARD OF EDUCATION et al Roland GORMAN et al v. HAVANA BOARD OF EDUCATION et al
    79-76 & 79-130
    585 S.W. 2d 927
    Opinion delivered September 10, 1979
    (In Banc)

      Will & Donovan, for appellants.

      Eugene R. Warren, for appellees.
   George Rose Smith, Justice.

On August 7, 1978, two companion suits were filed by patrons of Havana School District No. 86 against the District’s board and four of its five members. The complaint in one case was filed in the circuit court and alleged that the Board had violated the Freedom of Information Act at a meeting held on July 31 and that the meeting should be declared void. After a trial without a jury the circuit court found that there had been no violation of the Act and dismissed the complaint. The plaintiffs appeal, contending that the testimony showed a violation of the Act and that an amendment to the complaint should have been permitted on the day of trial.

The complaint in the second case was filed in the chancery court and alleged that the Board, at one or more of its meetings, had violated both the FOI and its own administrative policies. The complaint asked that the Board be permanently enjoined from holding further meetings not in compliance with the FOI and the Board’s administrative policies. The Board filed an answer denying the court’s jurisdiction and the allegations of the complaint. The chancellor held, upon the pleadings, that the court had no jurisdiction and dismissed the suit. For reversal the plaintiffs argue that their complaint stated a cause of action within the jurisdiction of a court of equity.

The two appeals have been consolidated in this court. We consider first the circuit court case, in which the issues were decided on the merits.

The complaint in circuit court asked that the Board’s meeting on July 21 be declared void, because the Board in executive session considered or arrived at a motion or resolution specifying four charges against Dr. Barham, the school superintendent, but the Board did not follow up its action by reconvening in public session and voting on the measure, as required by the FOI. Ark. Stat. Ann. § 12-2805 (Supp. 1977). To this contention the Board replies that it did not take the asserted action at its executive session and therefore was not required to publicly ratify any such action. We regard the issue as one of fact, upon which there is ample substantial evidence to support the trial court’s finding that no violation of the FOI occurred.

The president of the Board called the meeting to consider “a serious personnel (superintendent) problem.” Notice of the meeting was given to the board members and to the Yell County Record, a weekly newspaper. Several hundred patrons of the district attended the meeting. The Board promptly went into executive session to consider complaints that had been made against Dr. Barham. Dr. Barham objected at the time to the closed session, but there is no argument in this court that the Board was not entitled under the statute to consider a personnel matter in executive session. § 12-2805, supra. Dr. Barham, his two attorneys, and the attorney for the Board met with the Board in the executive session. The complaints were discussed for about an hour and a half, after which Dr. Barham and the three attorneys were excused. The five-member Board then discussed the matter for some 45 minutes. After that the Board resumed its public session and by a vote of four to one adopted a motion that Dr. Barham “be given a hearing” on August 4. On the day after the meeting the president of the Board sent a letter to Dr. Barham (with a copy to the newspaper), listing four charges against him. We do not know just what the charges were, as they are not included in the record.

The FOI provides that no resolution or motion “considered or arrived at in executive session will be legal unless following the executive session, the public body reconvenes in public session and presents and votes on such resolution . . . or motion.” § 12-2805, supra. Thus the issue is whether the Board, in its executive session, considered or arrived at the specific charges that were filed against Dr. Barham.

All five board members testified about what happened in the executive session. Mr. Vess said that no resolution or motion specifying the charges was considered or arrived at. He said the matter was discussed but not voted on, and that there was no tacit understanding that a letter with the charges would be sent to Dr. Barham. Mr. Frame testified that there was no motion in the executive session concerning the charges, that the Board did not pinpoint what the charges would be, and that he did not understand what they were to be. Mr. Tougaw said that the charges had been listed in the executive session. Mr. Mitchell said that the allegations against Dr. Barham were discussed, but not the charges to be filed. Mr. Welch, president of the Board, testified that he signed the letter preferring the charges without the Board’s specific approval, but it had been understood by the Board what would be done.

The circuit judge was certainly warranted in finding from the varying testimony that complaints against Dr. Barham were discussed, but that the Board did not “consider or arrive at” the specific charges. That the president of the Board may have prepared specific charges on his own initiative the following day could perhaps have been raised by Dr. Barham (who is not a party to these cases) as an objection at the hearing on August 4, but the trial court was not compelled to find that the FOI had been violated. All that Act requires is that a resolution or motion actually considered or arrived at in executive session be publicly ratified if it is to be legal. The purpose of the FOÍ is to protect the public’s right to information, not to specify what action shall be taken in an executive session on a personnel matter.

inasmuch as the circuit court was justified in finding that the FOI had not been violated, we need not consider whether the court should have permitted the plaintiffs to amend their complaint on the day of trial to seek alternative relief by injunction. No violation of the FOI having been found, there could be no basis for an order enjoining the Board from future violations of the Act. The denial of leave to amend was at most harmless error. The circuit court judgment is affirmed.

In the chancery case the parties and the chancellor treated the defendants’ challenge to the court’s jurisdiction as a contention that any cause of action stated in the complaint should have been asserted in an action in the circuit court. The chancellor’s order dismissing the complaint was in effect a denial of jurisdiction in equity as distinguished from jurisdiction at law.

The complaint first alleges that at one or more meetings the Board violated its own administrative policies by (1) considering items not on the agenda and voting on them without unanimous consent, (2) failing to allow the public to address the Board at a public meeting, and (3) failing to proceed according to Robert’s Rules of Order. A deliberative body, however, is entitled to adopt its own rules of internal procedure, the observance of which is within the discretion of the deliberative body itself, free from supervision by the courts. See Reaves v. Jones, 257 Ark. 210, 515 S.W. 2d 201 (1974). Hence this part of the complaint does not state a cause of action at law or in equity.

The complaint also alleges two violations of the FOI. The first is the same matter that was tried on its merits in the circuit court. That case has now settled the issue, for the Board is not required to defend two representative suits arising from the same incident.

The second assertion is that the president of the Board, with the acquiescence of three other members, called a special meeting for July 18 and directed the superintendent not to notify the public or the press. Such a directive would violate the FOI, because the Yell County Record had asked to be notified of special board meetings. § 12-2805, supra.

The chancellor, in dismissing the complaint, in effect tested the complaint as if on demurrer and concluded that no equitable cause of action was stated. The allegation, however, that a special meeting had been called without notice to the press may be regarded as stating a cause of action at law, for a declaratory judgment. In that event the chancellor should have transferred the case to the circuit court instead of dismissing it. Simmons v. Turner, 171 Ark. 96, 283 S.W. 47 (1926). Moreover, even if no cause of action at all had been stated, the case should not have been dismissed without the plaintiffs’ having been afforded an opportunity to amend their complaint. Ark. Stat. Ann. § 27-1117 (Repl. 1962); Robertson v. Robertson, 227 Ark. 978, 302 S.W. 2d 810 (1957).

The chancery decree is therefore affirmed in part and reversed in part, and the cause is remanded to permit the plaintiffs to proceed further if they so desire.

Purtle, J., concurs in part, dissents in part.

John I. Purtle, Justice,

concurring in part, dissenting in part. I concur with the majority in reversing the chancery court decree but disagree with affirmance of the judgment of the circuit court. This whole affair appears to be a matter of conflict over personalities. However, before a board terminates its superintendent of schools I feel that he should be afforded all procedural and substantative due process. The Board of Directors for a school district are the employees of the people in the district in a sense. The school does not belong to the directors, they are merely managing it on behalf of the people in the district. In the present case it appears that on the critical meeting date about 300 people were present with the hope and expectation that they would at least see what their Board was doing and hopefully be permitted to express their views in the matters considered by the Board. The Board rebuffed them in their efforts.

Perhaps the tone of the whole series of meetings was established when the president of the Board called the first special meeting on July 18, 1978, and directed the superintendent not to notify the public or the press about the meeting. I view with suspicion any action taken by a Board following such directive. Nevertheless, when the Board met on July 31, 1978, the first item of business was a motion to go into executive session. The motion did not carry unanimously as required by the Board policy. In this session it is obvious that the Board determined its subsequent course of action in terminating the employment of Dr. Barham. Although there were no minutes of the executive session reflecting any official action and no action was taken after the meeting was resumed in public, it is obvious that a decision was made by at least some of the Board members in executive session. Dr. Barham’s attorneys pleaded with the Board to make the charges against Dr. Barham public but were unsuccessful. The following day the president of the Board mailed Barham a letter stating specific charges. All Board members subsequently stated that this letter was not approved by the other members, either in executive or public session. Therefore, in my opinion, these charges, whatever they were, were the personal charges of the president of the Board and since the Board did not take action on the charges they were never officially before the Board.

It is entirely possible that if the Board had taken the public into its confidence and revealed to them the nature of the charges and the action taken thereon these suits would not have been filed. In view of the open violation of the Freedom of Information Act and the strongly suspect action taken in executive session, I would declare the meeting to have had no legal effect and would require the Board to redo its action in a manner consistent with the statements herein.


text:
    Willard W. JONES v. Mary STRAUSER, et al
    79-86
    585 S.W. 2d 931
    Opinion delivered September 10, 1979

      Wilson & Grider, by: Murrey L. Grider, for appellant.

      Dan M. On, for appellees.
   John A. Fogleman, Justice.

Appellant Willard W. Jones is the father of Marcella A. Jones, a seven-year-old female, born to his former wife, Venita (now Carpenter). He sought to obtain custody of this daughter by petition for modification of an order of March 23, 1977, awarding custody of the child to her maternal grandparents, Clarence Strauser and Mary Strauser. He alleged that there was a change in circumstances since the original order was entered in that Clarence Strauser had died. Appellant amended his petition on September 29, 1978, making the child’s mother a party and alleging that as between the two natural parents, he was the proper person to have custody of the minor daughter. On December 18, 1978, after hearing the evidence, the chancery court denied the modification. On January 18, 1979, a decree was entered continuing Mrs. Strauser’s custody.

On appeal, the father asserts that the chancellor committed reversible error. Fundamentally, his argument is that the best interest of the child would be served by awarding him custody. In advancing that argument, he emphasizes the preference of parents over strangers and other relatives in the award of custody of a child, saying that the basis of this preference is the welfare of the child. Since we are unable to say that the chancellor’s ultimate finding that it is in the child’s best interest that the custody remain unchanged is clearly against the preponderance of the evidence or that the chancellor misapplied the law to the facts, we affirm.

The welfare of the child is the polestar in every child custody case. Provin v. Provin, 264 Ark. 551, 572 S.W.2d 853. Ordinarily it is true that, as between a parent and a grandparent, the law awards custody to the parent unless he is incompetent or unfit to have custody of the child. Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140. In this case, the award of the custody of the child to her maternal grandparents was based on an agreement to which appellant was a party. While his parental preference was not thereby forfeited forever, its effect was so diminished that he bore the burden of showing a change in circumstances subsequent to that award which required or justified a change in the custody when considered from the standpoint of the welfare of the child. Parks v. Crowley, 221 Ark. 340, 253 S.W. 2d 561. See also, Johnson v. Arledge, 258 Ark. 608, 527 S.W. 2d 917.

The only really significant change in circumstances shown was the death of the paternal grandfather. The chancellor weighed the evidence very carefully in reaching his conclusion. The following significant findings of fact were incorporated in the court’s decree:

That the defendant, Mary Strauser, along with her late husband, Clarence Strauser, has had the custody of the said Marcella A. Jones from the time she was born until the present and that the said Mary Strauser is now providing adequate care and custody and control of the said Marcella A. Jones.
That circumstances have changed since the entry of the last Order establishing custody in the said Mary Strauser and Clarence Strauser, deceased, on March 23, 1977.
The court feels that the best interest of the child is overriding in this case and the child has been with the grandparent, Mary Strauser, since birth and that the grandmother, Mary Strauser, is doing reasonably well with the child.
The court is not impressed with eight (8) people living in Mary Strauser’s home and the fact that they come and go with great frequency.
The Court however finds that both natural parents abandoned the child for the first five (5) years of her life and that only since 1976 has the natural parent, Willard W. Jones, taken any interest in the child, however since that time he has become a fit and proper parent.
it is evident that Mary Strauser, defendant herein, has some physical problems that constitute a health hazard to her, i.e., hypertension and in the event that Mary Strauser should become disabled, the child should be placed with the father.
That it is in the best interest of the said Marcella A. Jones that her custody not be changed at this time. . .

Appellant says that these findings of fact by the chancellor are not particularly in dispute, except as to the chancellor’s interpretation of them. He does feel that some of the oral findings of the chancellor at the conclusion of the trial, however, were not warranted. He first complains that in finding that he did not support the child from 1972 to 1976, the chancellor overlooked testimony that he was not allowed to visit with the child from the first Christmas after she was born until 1976, and that the child’s mother told him she did not want support and did not want him coming back to see the child. We point out that this testimony related to matters which would have been more appropriately addressed to the order awarding custody to the grandparents. At the same time, it appears to us that appellant could well have taken steps to obtain visitation rights if he had been really interested and had really wanted to contribute to the child’s support. It does not appear to us that the ultimate finding that only since 1976 had appellant taken interest in the child was clearly against the preponderance of the evidence.

Appellant also complains of the statements by the court that there would naturally be some difficulties between Marcella and a six-year-old daughter of appellant, on the basis that there is no supporting evidence and that appellant’s present wife testified that Marcella’s relationship with her two children was good. On the other hand, Mrs. Jones , testified that when she had recently visited in the Strauser home, Marcella ran into the bedroom and refused to talk to her, and that in spite of trying to get Marcella to go with her to be in a family portrait, Marcella refused and told Mrs. Jones’ daughter that it made no difference what her father or anyone else said, she didn’t have to go with Mrs. Jones. The court, however, did not seem to accord major significance to this finding in its decree. In his findings, the chancellor said that this possible friction was the only thing that might be considered derogatory to appellant’s home at the time of the hearing, and stated his conclusion thusly: “And, of course, two girls that close would naturally have some difficulties.” In reaching this conclusion, the chancellor relied on his own observations and experience of the affairs of life and gave effect to an inference from the facts on the basis of such observation and experience. It is proper for a jury to do this. Kroger Grocery & Baking Co. v. Woods, 205 Ark. 131, 167 S.W. 2d 869. In the cited case, we quoted from a textbook statement pointing out- that jurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life anymore than the court is expected to ignore its own “knowledge and experience with ordinary affairs.” In the current edition of that text, we find this statement repeated. See 29 Am.Jur. 2d 59, Evidence, §21. It has been specifically held in at least one other jurisdiction that the principles with reference to a jury’s consideration of its own general knowledge and experience in the affairs of life are no less applicable to a judge, as trier of facts, than to a jury. Hinterman v. Stine, 55 Mich. App. 282, 222 N.W.2d 213 (1974). See also, Drumwright v. Walker, 167 Va. 307, 189 S.E. 310 (1937).

Observance of this principle is certainly proper. It would be extremely difficult, if not impossible for a fact finder, even a judge, to avoid drawing inferences based on his knowledge and experience in everyday affairs of life. A chancellor dealing in matters pertaining to child custody would find it difficult indeed to disregard any knowledge he had gained through his experience and ofosereatiom in those cases. It seems inevitable that he would apply this knowledge consciously or subconsciously. As a result, we cannot say that the chancellor’s statement was an unwarranted' inference.

Virtually the same thing may be said with reference to the chancellor’s statement that to tear the child from the only home she had known would be a difficult and traumatic psychological event to the child. In the absence of evidence to the contrary, it might be said that the chancellor merely stated a matter of common knowledge. Appellant suggests that the child might better adjust at this time than later. This fact is less certain.

It is true that the chancellor considered the facts that the grandmother is 65 years of age and has a hypertension problem, and that eight people live in her home and that children and grandchildren come and go with frequency in weighing all the factors, but he did not consider them to override other factors in determining the best interests of the child. We are in no position to ©lisagree. There is no case in which the ability and opportunity of the chancellor to observe the parties carries greater weight. Wilson v. Wilson, 228 Ark. 789, 310 S.W.2d 500; Lumpkin v. Gregory, 262 Ark. 561, 559 S.W.2d 151.

Not only is it significant that the chancellor observed Mrs. Strauser, but it is also significant that although he specifically held that custody should not be changed at this time, he stated that in the event that Mary Strauser should become disabled, the child should be placed with her father. No one contests the holding that, as between appellant and the child’s mother, appellant would be the proper person to have custody of Marcella. We consider the portion of the court’s decree recognizing that deterioration of Mrs. Strauser’s health may dictate a change in the custody of the child as a retention by the court of control of the case for that purpose. It is appropriate that such control be retained in a case such as this. See Phifer v. Phifer, 198 Ark. 567, 129 S.W.2d 939.

The decree is affirmed.

We agree. Harms, C.J., and George Rose Smith and Hickman, JJ.


author: Frank Holt,

text:
    Aubrey TAYLOR v. Johnnie RICHARDSON, d/b/a RICHARDSON CONSTRUCTION COMPANY
    78-320
    585 S.W. 2d 934
    Opinion delivered September 10, 1979
    (Division II)

      Jones & Tiller, by: Marquis E. Jones, for appellant.
    No brief for appellee.
   Frank Holt,

Appellee built appellants a “custom” house. Appellants moved into the house on November 16, 1973. Thereafter they commenced this action for breach of contract, alleging that the appellee had refused to correct numerous defects and construction errors. They sought $6,-970 damages to “correct the construction errors and defects.” Subsequently, they amended their complaint seeking damages in the amount of $9,000 due to “diminution in the value of plaintiff’s property.” By counterclaim, appellee sought $379 from appellants. The court, sitting as a jury, found that where there are “defects in a building which can be remedied by repair or completing the omissions, the measure of damages is the cost of such repair rather than the difference between the value of the building as constructed and that contracted for.” Damages of $166.98 were awarded to appellants for the omissions of certain items in the construction. This award was deemed sufficient to offset the balance found to be due on appellee’s counterclaim. For reversal appellants contend that the court erred in its findings of fact and application of the law to the facts presented. The thrust of their argument is that their evidence is “overwhelming” that they are entitled to damages based upon the difference between the value of the building as constructed and the cost contracted for.

We deem it appropriate at this time to call attention to the fact that Arkansas Rules of Civil Procedure, Rule 52, effective July 1, 1979, has altered the standard of review on appeal as to cases tried by a circuit judge, sitting as a jury. That rule provides: “Findings of fact shall not be set aside unless clearly erroneous (dearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” In other words, on appellate review the substantial evidence test will not be applicable to cases tried on or after July 1, 1979.

The case at bar was tried before the effective date of Rule 52. Therefore, the rule applies here that on disputed issues of fact, we are concerned only with whether there is any substantial evidence to support the finding of the court, sitting as a jury. McMillan v. Mueser Material & Equipment Co., Inc., 260 Ark. 422, 541 S.W.2d 911 (1976); and Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W.2d 822 (1968). in determining the sufficiency of the evidence, we review all of the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the court’s finding. Thrifty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W.2d 304 (1975). There we also observed that “we consider only the evidence of the appellee or that portion of all the evidence which is most favorable to him.” In Carter v. Quick, 263 Ark. 202, 563 S.W.2d 461 (1978), relied upon by the appellants, it was argued, as here, that the proper measure of damages was the difference in value of the home as erected and its value if it had been constructed according to the contract rather than the cost of replacement and repair. In rejecting this argument, we reiterated:

A substantial compliance by the contracter is all that is required under the law, he being charged (where there is a substantial compliance) with the difference in value between the work as done and as contracted to be done, or the replacement of defective work where this can be done without great expense or material injury to the structure as a whole.

Here the evidence was in conflict, as to compliance by the contractor or the magnitude of the asserted defects. According to the appellants and their witnesses, the construction of the house was “inferior workmanship,” “substandard construction,” and “sloppy.” The house was constructed below grade, resulting in the sunken living room sustaining water seepage. A 16’ garage door was installed instead of an 18’ door. A 36” fireplace was installed instead of a 42” fireplace. Numerous other defects and omissions were detailed although, as found by the court, they were unsupported by “evidence of a breakdown nature.” Appellants’ witness estimated a total of $4,750 damages as the difference in value of their house as constructed and that contracted for or $9,500 based on cost of repairs.

Appellee, however, presented evidence to the contrary. His expert witness testified that he examined the exterior and interior of the house. He noticed no constructural defects. He would have had no objection to the quality of workmanship had he examined the house for a lending institution. The house appeared to be of average quality and construction, structurally sound, and very typical for the neighborhood. Also he found “no significant slope in the property so as to affect the drainage," and "no indication of any water damage or drainage problems." It is undisputed that the appellants provided appellee with the plans and specifications for the construction of a house on a lot selected by them. Appellee testified that appellants' main complaint was about the fii~eplace and the garage door. The substitution of the 16' garage door for the 18' garage door was made with appellants' knowledge and adequately served the purpose. The substitution of a smaller fireplace was necessary and done with appellants' knowledge. Gutters, for which the court awarded $60, and an iron gate, for which the court awarded $75, were not installed because construction was not yet completed, and he had not been fully paid.

h~ resolving the conflicting evidence, the court found that defects attributable to the workmanship of the appellee could be adequately and reasonably repaired, and therefore the proper measure of damages was the cost of such repair. When we review the evidence most favorable to the appellee, as we must do on appeal, we cannot say that there is no substantial evidence to support the court's finding of facts and application of the measure of damages.

Affirmed.

We agree: HARRIS, C.J., and BYRD, and, PURTLE, JJ.


author: Frank Holt, Justice.

text:
    Jane S. SUTTON v. Lewis R. SUTTON
    79-12
    587 S.W. 2d 67
    Opinion delivered September 10, 1979
    (Division H)

      Spitzberg, Mitchell & Hays, by: Steele Hays, for appellant.

      Ed Daniel, for appellee.
   Frank Holt, Justice.

Appellant was granted a divorce from appellee on the grounds of general indignities. Ark. Stat. Ann. § 34-1211 (Repl. 1962). She was awarded her statutory interests in the appellee’s real and personal property. Additionally, she is to receive one-half of the proceeds from the sale of their jointly owned home (approximately $55,000 equity) and a condominium ($18,000 cost with $14,000 mortgage); one-half in kind of municipal bonds valued at $12,000; and one-third of appellant’s contributions to a pension and profit sharing plan of the Arkansas Psychiatric Clinic “provided such contributions are vested.” The parties were directed to divide the home furnishings. The chancellor refused to award appellant any alimony due to the fact that she was gainfully employed and entitled to draw income to the extent of $5,000 annually from the corpus of an insurance trust. Appellant contends the trial court’s disallowance of alimony was an abuse of discretion.

When awarding alimony, the chancellor should give proper consideration to (1) the financial condition of the parties such as the husband’s ability to pay, the wife’s financial needs, and the wife’s ability to support herself; (2) the station in life of the parties, that is, the manner and style of living to which the wife has become accustomed; and (3) the character of the parties bearing on the cause of the separation. Evans v. Evans, 263 Ark. 291, 564 S.W. 2d 505 (1978); Hurley v. Hurley, 255 Ark. 68, 498 S.W. 2d 887 (1973); and Lewis v. Lewis, 202 Ark. 740, 151 S.W. 2d 998 (1941).

Appellant, 44 years old, was married to the appellee for over 25 years during which time she worked to assist the appellee financially in medical school and to rear their two now adult sons. She has minimal secretarial and bookkeeping skills and is currently attending college to secure a business degree. Appellant cannot draw income or invade the corpus of appellee’s life insurance trust until his death. Consequently, in addition to the assets appellant derived from her share of their property, as previously discussed, her sole expectation of income at present is the $490 net monthly take-home pay from her job as a secretary. After detailing her expenses, she testified she would need a minimum of. $500 per month alimony to supplement her income.

Appellee is a successful psychiatrist with a substantial income of $2,000 net monthly. For the past two years, he has been paying the rent and utilities on a home, as well as all expenses for food and miscellaneous household items, for himself and another woman. Suffice it to say that appellee’s present earning capacity, education, and ability to provide appellant with monetary support are far superior to those of the appellant. We hold appellant is entitled to alimony and an award of $300 per month is reasonable in the circumstances.

Appellee argues that Ark. Stat. Ann. § 34-1211 (Repl. 1962) is gender based and therefore Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), which held such statutes unconstitutional, should be applied here. We cannot consider this argument since it is raised for the First time on appeal. Gross v. Gross, 266 Ark. 186, 585 S.W. 2d 14 (1979); Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979); and Williams v. Edmondson, 257 Ark. 837, 250 S.W. 2d 260 (1975).

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

We agree: Harris, C.J., and Byrd and Purtle, JJ.


text:
    FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS, INC. v. Danny PARKS
    79-69
    585 S.W. 2d 936
    Opinion delivered September 10, 1979
    (Division II)

      Samuel N. Bird, of Williamson, Ball & Bird, for appellant.

      Charles S. Gibson, for appellee.
   Frank Holt, Justice.

Appellee’s house was totally destroyed by fire. When appellant, the insurer of the dwelling, refused payment, this action resulted. As an affirmative defense, appellant alleged appellee had fraudulently represented the value of his house and thereby induced appellant to issue its insurance coverage ($45,000) greatly in excess of the actual value. The trial court granted appellee’s motion for a directed verdict, following appellant’s case, for the coverage on the dwelling. The question of the value of the contents of the house was submitted to the jury, which found for the appellee on that issue.

Appellant’s sole ground for reversal is that the trial court erred in directing a verdict for the loss of the dwelling. It argues that there was substantial evidence presented from which the jury could have found that appellee fraudulently misrepresented the value of his house to induce the appellant to issue a policy providing coverage far in excess of the true value of the house. Therefore, the “Valued Policy Law” (Ark. Stat. Ann. § 66-3901 [Repl. 1966]), which provides that in the event of a total loss by fire, the fire insurance policy is considered to be a liquidated demand against the company for. the full amount stated in the policy, is inapplicable.

The propriety of a directed verdict is reviewed on appeal by taking that view of the evidence which is most favorable to the party against whom the verdict is directed. If there is any substantial evidence tending to establish an issue in his favor, it is error for the court to take the case from the jury. Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W. 2d 307 (1969). In testing the substantiality of the evidence, the evidence and all reasonable inferences therefrom are viewed in the light most favorable to the party against whom the verdict is directed. Thompson v. Helms, 236 Ark. 914, 370 S.W. 2d 609 (1963). In other words, a directed verdict is proper where there is no substantial evidence from which a reasonable mind could find against the plaintiff on a fact issue, when all inferences are drawn and all evidence considered in the light most favorable to the defendant.

Appellee purchased a dwelling house and ten lots for $23,000. He financed the purchase with a loan in the amount of $25,000 from a Savings and Loan Association. At the request of the Association, a realtor appraised the property and assigned a total value of $33,500, $20,500 for the house and $13,000 for the land. The Association also required insurance coverage. Appellee’s fraudulent misrepresentation allegedly occurred in a telephone conversation between appellee and appellant’s local agent, which resulted in the issuance of a policy for $45,000 coverage. The agent asked the appellee how much insurance he wanted and the appraised value of the house. Appellee stated the $33,500 figure and discussed the proposed remodeling. The agent asked the approximate cost of replacing the house and “[a] 11 the remodeling you’re doing and everything.” The agent suggested a figure of $45,-000 to which the appellee agreed. It is undisputed that the appellee did not receive a copy of the appraisal and was informed only as to the total fair market value of $33,500. Although the appraiser testified that his appraisal included the increased value that would result from the completion of the remodeling, it is uncontradicted that appellee was not informed as to whether or not the value of the improvements planned and being made was included. Appellee testified that he assumed that the appraisal figure applied only to the dwelling and did not include the enhanced value.

It is also undisputed that the application form asked for coverage of only $40,000. Appellant’s agent, however, submitted an application requesting coverage for $45,000. It contained a statement that appellant’s agent had inspected the dwelling and recommended acceptance of the risk.

In the circumstances, we hold there is no substantial evidence that the appellee fraudulently misrepresented the value of his house and thereby induced the appellant to issue its policy of insurance greatly in excess of the value of the dwelling.

Affirmed.

We agree: Harris, C.J., and Byrd and Purtle, JJ.


author: Darrell Hickman, Justice.

text:
    FORD MOTOR CREDIT COMPANY v. Walter E. YARBROUGH et al
    79-57
    587 S.W. 2d 68
    Opinion delivered September 10, 1979
    (Division I)
    [Rehearing denied October 15, 1979.]

      Griffin Smith and W. R. Nixon, Jr., for appellant.

      Spencer & Spencer, for appellees.
   Darrell Hickman, Justice.

This case is a sequel to the case of Ford Motor Credit Company v. Yarbrough, et al, 263 Ark. 610, 567 S.W. 2d 96 (1978). In the first case we upheld the chancellor’s holding that usury voided certain contracts. The only reminaing issue to be determined was that of damages, because appellant had repossessed and sold the property, under a bond.

The chancellor heard evidence from, both parties and entered an order which reads, in part, as follows:

The Court has used no average or formula but has treated each unit separately and considered all evidence and testimony introduced, including the demeanor of the witnesses. The Court finds from a preponderance of the evidence the value of each vehicle at the time of taking to be as follows:
1.Roy A. Yarbrough
Two trailers $12,600.00
Two 8,000 tractors 34,881.68
Total $47,481.68
2.N. B. Yarbrough, Jr.
One trailer $ 1,750.00
One 9,000 tractor 19,590.09
Total $21,340.09
3.Earl H. Yarbrough
One trailer $ 6,300.00
One 9,000 tractor 20,527.07
Total $26,827.07

On appeal the appellant alleges only one error and that is that the determination of value by the chancellor is against the preponderance of the evidence.

On appeal we look to see if the findings of the chancellor are clearly erroneous. Titan Oil & Gas v. Shipley, 257 Ark. 278, 517 S.W. 2d 210 (1974). We cannot say that the findings in this case are that erroneous and, therefore, we will affirm the judgment of the chancellor.

The appellant argues that the testimony of the appellees should be discounted because they are interested parties and that the only credible evidence was that offered by the appellant.

Roy Yarbrough testified that the two trailers were worth $8,500.00 each and that the two tractors were each worth $21,500.00, or $22,000.00. The chancellor found the value of the vehicles to be some $12,000.00 less than Roy Yarbrough’s testimony.

Earl Yarbrough testified that the value of the equipment which was repossessed from him was about $32,000.00. He received judgment for some $26,500.00.

N. B. Yarbrough, Jr. asked for $31,500.00 and he obtained judgment for $21,340.00.

We agree with the appellant that the testimony of one Archie Norman as an expert is of little value. Norman’s familiarity with the vehicles in question was not sufficient for him to offer a firm opinion as to the value of the vehicles that could be given a great deal of weight.

The appellant offered evidence of value by showing the amount recovered when some of the vehicles were sold. For example, one of Roy Yarbrough’s trucks was sold to a Ford dealer for $10,500.00. It was not denied that this was a wholesale price. Earl Yarbrough’s tractor was sold to a dealer for $16,000.00, which was also considered to be a wholesale price. A similar vehicle belonging to another Yarbrough, who is not a party to this appeal, was sold at retail for over $28,-000.00 to an individual. However, it had had extensive repairs.

There was evidence the vehicles were no more than two years old, new models changed little from year to year and prices of new models had gone up dramatically.

The chancellor, just as a jury, is not required to accept at face value testimony of the witnesses. The chancellor did not in this case. No doubt, the chancellor took into consideration all the evidence, as his decree reflects, and arrived at figures less than the Yarbroughs sought but more than the appellant felt were justified.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and Fogleman, JJ.


text:
    HOWARD’S LAUNDRY & CLEANERS v. James D. BROWN
    79-64
    585 S.W. 2d 944
    Opinion Delivered September 10, 1979
    (Division I)

      Blackmon & Zjakrzewski, for appellant.

      McHenry, Skipper & Skelton, for appellee.
   Darrell Hickman, Justice.

This is the second appeal of this case. In an unpublished opinion we remanded this case to the Circuit Court of Pulaski County for retrial. We found that there was not substantial evidence to support a judgment in favor of the appellant, Howard’s Laundry and Cleaners. Upon remand, the circuit judge, sitting as a jury, found in favor of the appellee, James D. Brown, and entered judgment in the amount of $2,500.00.

Howard’s, on appeal, argues that the court committed two errors. First, that the court improperly found that the appellee had met the burden of proof, and, second, that the court improperly applied the measure of damages.

The appellee had suffered tornado damage to his house and while the house was being renovated and painted, his wife decided to have some drapes cleaned. She selected the appellant laundry because it advertised as a specialist in cleaning drapes.

The critical testimony regarding liability in this case is whether the drapes were wet or dry when Howard’s picked them up. All the evidence offered by the appellee was that the drapes were in good condition and dry when they were picked up. James D. Brown testified that the drapes suffered no water damage as a result of the tornado. His wife testified that she had made the drapes and that when they were picked up they were dry and in good condition. When they were returned they had shrunk. She complained to Howard’s. They picked them up again and tried to stretch them but the effort was unsuccessful. She testified that the drapes were worth $2,500.00 before they were damaged and worth nothing after they were damaged.

A home economist testified that the first time she saw the drapes they were in good condition but after they were cleaned they were puckered and short. She testified in her opinion the drapes would have been worth $2,200.00 to $2,-500.00, but would be worth nothing in their present condition. She said that good material would not shrink unless it was put in water that was too warm. She testified that the drape material was good and would cost between $10.00 and $15.00 a yard. A man who was painting the Brown house at the time they were picked up testified that the drapes were not wet when he helped Mrs. Brown take them down. An adjuster for the General Adjustment Bureau, who inspected the house after the tornado, said he found no water damage inside the house.

A vice-president of Howard’s testified as to the routine procedure in cleaning drapes and generally disclaimed responsibility for the shrinkage. A driver for Howard’s, who picked up the drapes, said they were wet when he got them. A Howard’s employee at the laundry said he received a large quantity of wet drapes that day but could not say specifically that Mrs. Brown’s drapes were among them. He explained Howard’s cleaning process and said a red ticket had been attached to the drapes which indicated something was unusua! about them.

The parties do not disagree about the law, only its application. In our previous unpublished opinion in this case we quoted the law of bailments as it should be applied in this case as follows:

The rule in bailment cases is that the bailee may overcome the inference of negligence arising against it because of delivery in good condition and return in damaged condition by telling all that it knows of the casualty, and that it exercised ordinary care in all that it did with respect to the vessel. This burden, unlike that of persuasion which rested at all times on appellants, simply required appellee to go forward with evidence sufficient to show that it had no more knowledge of the cause of the casualty than was available to the appellants and that it exercised ordinary care. At this juncture the burden of going forward would shift back to appellants to ultimately persuade the trier of the facts of negligence on the part of appel-lee proximately causing the casualty. Sisung v. Tiger Pass Shipyard Company, 303 F. 2d 318, 321-322 (5th Cir.1962).

The appellant argues that Brown did not meet his burden of proof by showing that the drapes were delivered in good condition. The appellant, in effect, asks us to accept the testimony of his witness as opposed to those of the appellee in this regard. The court found for Brown and entered judgment in his behalf. Therefore, the only question before us, is, was there substantial evidence to support the judgment. There is an abundance of testimony that the drapes were delivered to Howard’s in good condition.

Next, the appellant argues that there was no evidence that Howard’s failed to exercise ordinary care. It was not disputed that if the drapes were wet it probably caused their shrinkage. Howard’s never contended that there was no shrinkage. It would be reasonable for the trial court to conclude that if the drapes were not wet when they were delivered and were in good condition, and were returned damaged after they were in the exclusive possession of Howard’s, then Howard’s would be liable. Cothren v. Kansas City Laundry Service Co., 242 S.W. 167 (Mo. Appl 1922). Certainly, Brown had offered sufficient evidence to shift the burden of proof, which the trial court had to find by virtue of its judgment.

The second argument of error is regarding the measure of damages and the parties are not in disagreement about the law, both referring to the case of Kimball v. Goodman, 117 Ark. 446, 174 S.W. 1185 (1915). In this case we said:

In determining the value of the goods destroyed, you should not consider their salable, market value as second hand clothing, but base your estimate on their original cost, the character of the materials, the extent to which they had been used and would probably be suitable for future use by the plaintiff, and all other circumstances which the proof, in your opinion, shows existed at the time they were injured and not their market value which the plaintiff is entitled to recover.

The appellant argues that because the drapes were four years old their value had decreased and the court was wrong in entering judgment for $2,500.00. Suffice it to say, Mrs. Brown testified the drapes were worth $2,500.00 at the time they were picked up and nothing upon their return. The home economist testified that the replacement cost of the drapes would be between $2,200.00 and $2,500.00. There was other testimony that the quality of the drapes was excellent; that they were made of good quality material and attractive. There is substantial evidence to support the judgment.

The appellant’s attorney argues that he never agreed to this case being decided by the trial judge’s merely reading the record from the first case and a deposition submitted later. This allegation of error was not properly preserved at the trial level and cannot be raised on appeal for the first time.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and Fogleman, JJ.


text:
    Ardia V. McCREE v. STATE of Arkansas
    78-227
    585 S.W. 2d 938
    Opinion delivered September 10, 1979
    (In Banc)

      Christopher C. Mercer, Jr., for appellant.

      Steve Clark, Atty. Gen., by: E. Alvin Schay, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Ardía V. McCree was tried in the Ouachita County Circuit Court for cápital felony murder; he was convicted and sentenced to life imprisonment without parole.

On appeal he alleges five errors which we find on review to be without merit.

The evidence against McCree was mostly circumstantial, no witness was produced who saw McCree kill Evelyn Boughton, the victim.

The crime occurred shortly after 8:00 a.m., February 14, 1978, at the La Tienda Gift Shop and Service Station in Camden, Arkansas, which Mrs. Boughton owned. McCree made a statement to the police which was video-taped and shown to the jury. McCree’s version of the incident, as realted on the tape, was that he left home early that morning with the intention of talking to his mother-in-law. He was driving his white and maroon colored Lincoln Continental. He had taken his Winchester 30.30 caliber rifle with him and laid it in the back seat of his car. He explained he was having trouble with his wife and felt he needed protection.

He drove up to the La Tienda Service Station and put $2.00 worth of gasoline in the car. While he was there a tall black man wearing an overcoat walked up to him and asked him for a ride. He described the man, who was a stranger to him, as having a bumpy face, with a long scar. He agreed to give the man a ride and went in to pay for the gasoline. As he did, the other man walked in with the rifle and said, “Hold it.” Mrs. Boughton reached out, or made a move, and he shot her. The other man got a bank bag off a counter, turned the gun on McCree and said, “Let’s go.”

They got in the car and the other man drove, holding the rifle on McCree. They left Camden at a high rate of speed, going north on Highway 7. After they left town they turned off Highway 7 onto a dirt road. As they were going down the road they met a log truck going toward Highway 7. Less than a mile down the dirt road the other man stopped the car in the middle of the road, took the gun and bank bag with him and told McCree to turn around, leave and say nothing. McCree said he last saw the man walking down the road.

McCree said he drove back to Highway 7 and headed north. He passed the same log truck at the intersection with Highway 7, or just after he turned onto Highway 7. After he had traveled a short distance he passed the Camden Chief of Police who was headed in the other direction. The Chief turned around and followed him and at a road block the Chief asked him to get out of the car, searched him and asked for his driver’s license. After several questions, McCree was released. McCree indicated he was headed in the other direction. The Chief turned around and followed him and at a road block the Chief asked him to get out of the car, searched him and asked for his driver’s license. After several questions, McCree was released. McCree indicated he was going to Hot Springs. McCree said he was scared and confused and did not know what to do when he was stopped. He went to the races in Hot Springs and then decided to go to his brother’s house in Little Rock. He was arrested in Hot Springs. He explained that the money he had on him at the time he was arrested, which was over $200.00, was mostly money that he had borrowed from two other people.

C. C. Blackstock, who runs a fish market across the street from the service station, said that he heard a shot that morning and saw a black male come out of the service station with a gun which appeared to be a rifle or a small gauge shotgun. He saw the man get into a car which he described as maroon, or reddish rust, with a white top. After the vehicle left he ran across the street, found Mrs. Boughton shot and called the police department.

The police arrived shortly thereafter, and, after talking to Mr. Blackstock, put out a call on the radio to stop a brown Mercury with a white top.

The Camden Chief of Police testified that he received that radio message and was searching for that vehicle when McCree was stopped north of Camden. Later that morning the description of the vehicle was changed to a maroon and white Lincoln Continental and, based on that information, the Chief called the Arkansas State Police in Hot Springs and asked that they find and arrest McCree.

Ann Mitchell testified that she was on her way to work that morning and drove past the La Tienda Service Station. As she was approaching the station she noticed a car pulling out at a high rate of speed. She described it as a white over burgundy Continental driven by one black male. She did not think anyone else was in the vehicle.

The log truck driver testified that he was passed on the dirt road in question that morning by a brown or maroon Mercury or Lincoln driven by a black male. He said he watched the vehicle in his rear-view mirror, saw the man drive down the road, stop, get out, get back in, turn around and follow the truck back to Highway 7. He did not see anyone else in the vehicle.

An F.B.I. officer testified that in his opinion the bullet which killed Mrs. Boughton came from McCree’s rifle. The daughter of Mrs. Boughton identified the bank bag as belonging to Mrs. Boughton; she identified her mother’s signature on several checks.

About two days after this crime the gun and the bank bag were found about twenty steps off the Tate’s Bluff Road, which is the dirt road the log truck driver used the morning of the 14th of February. The items were found less than a mile down the road from Highway 7.

The defense called as a witness, James C. Bevill, who had signed a statement for the police. It said that he had passed the service station that morning and saw McCree leaving the station. He saw no gun or object in McCree’s hands. He said he saw another man sitting in the passenger side of McCree’s vehicle.

Bevill had changed his story by the time of the trial. He had signed another statement shortly before the trial in which he indicated that he had misunderstood the police. He thought they had asked him if he knew a black man with a scar and he said, “Yes.” He told them he knew a man by the name of Joe Brewer who had a scar. Brewer was later brought in and Bevill said that was not the man he saw. He said he never intended to say that he saw anyone with McCree at the station on that date. Bevill admitted that he did sign the first statement with the police. The police officers in question verified that he did make that statement and in their judgment understood what he was saying.

The defense revealed that since his last statement Bevill had been punished by the Camden Municipal Court for DWI. He admitted that he had told McCree’s lawyer he was bitter about it because he thought he was a friend of the police.

McCree alleges five errors on appeal.

First, he argues that the jury was improperly qualified. McCree argues that certain jurors were excluded who may have had general objections to the death penalty but would not automatically vote against it.

In Witherspoon v. Illinois, 391 U.S. 510 (1968), the United States Supreme Court held it was reversible error for a trial court to exclude for cause a venireman who simply had scruples against capital punishment. Justice Stewart, for the majority, stated:

Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.

The jury in this case was qualified for the death penalty. That is, the State was seeking the death penalty and made an effort to obtain a jury that would consist of those individuals who could in good conscience sentence a person to death if the case warranted it. The State sought to exclude those veniremen who said they would automatically vote against the death penalty under any circumstances.

As an example of improper exclusions, McCree uses the voir dire of Juror Douglas. At first, Douglas, in response to the State’s questions, said:

Prosecuting Attorney: You’ve heard the question the Court asked you earlier and I’ll try to recite it as best I can, and not embellish on it a lot, and get right to the point of it, as to whether or not if you’re selected as a juror, you would refuse or, for some reason of your own under any circumstances to impose the penalty of death.. . .Okay. Mr. Douglas?
Juror Douglas: You said it depend on — on death you say? I couldn’t.
Prosecuting Attorney: You just would not?
Juror Douglas: No.
Prosecuting Attorney: Under any circumstances?
Juror Douglas: Under any circumstances ....

The attorney for McCree then questioned Douglas:

Defense Attorney: Yes, sir Mr. Douglas, are you saying that your mind would be completely closed before you went into the jury box, that you under no circumstances — no matter what the situation — proved, and no matter what the Court instructed you the law was, that you already made up your mind that you could not even consider it? It doesn’t say that you — could you consider it, it doesn’t say committing yourself to both points in advance. Would you consider it?
Juror Douglas: Yes, I could consider it at that point. It’s just like I said, I couldn’t sentence a man to death.
Defense Attorney: I’m sorry. I can’t hear you.
Juror Douglas: I say I could consider it, but as far as me sentencing a man — as far as — whatever you call it — I couldn’t do it. It’s just against my will.
Defense Attorney: But you could consider it?
Juror Douglas: Yes. I could consider it . . .
Defense Attorney: Your answer to the question as to whether or not you could consider the death penalty, and you say, “Yes, I could consider it.” I’m saying that nobody is trying to get you to commit yourself to vote for it or not vote for it. Do I understand that you have strong feelings against it? But my question to you is that in answering it to the extent that you said you could consider it, could you consider the question sufficiently to make up your mind at the point of conclusion where all the facts and evidence, where then the Court had instructed you of the law before you decided which way you would vote?
Juror Douglas: Yes. I could do that.
Defense Attorney: Pass him back.

The court, not being satisfied, asked questions and solicited the following answers from Juror Douglas:

The Court: Now I’ve got — Mr. Douglas, let me just clear up the point. Just answer this question. Let me see if I understand you. Would you automatically refuse under any circumstances to vote to impose the death penalty?
Juror Douglas: Would I hold it against you?
The Court: Would you automatically refuse under any circumstances to vote to impose the death penalty, to vote for the death penalty?
Juror Douglas: Say would I?
The Court: Yes.
Juror Douglas: No, I wouldn’t.
The Court: I’m not sure you — no, you wouldn’t what?
Juror Douglas: I don’t guess I got your question then.
The Court: I probably got it turned around.
Juror Douglas: Break it a little smaller where I can understand it.
The Court: Would you ever at any time if you were selected to serve on a jury, vote to have any defendant electrocuted?
Juror Douglas: Would I ever?
The Court: Vote to have one put to death?
Juror Douglas: No, I wouldn’t.
The Court: You’d never vote to do that?
Juror Douglas: No, I wouldn’t.
The Court: Under any circumstances?
Juror Douglas: No.
The Court: All right. I’m going to excuse Mr. Douglas.

We feel the trial judge properly excluded Douglas, and other jurors who made similar answers to similar questions. There is no doubt that the record reflects that when the prospective jurors were asked by the court whether they could impose the death penalty, their unequivocal answer was no; under no circumstances could they do it.

The record reflects that the trial judge was careful, fairly taking no chances of a misunderstanding. We find no evidence that any juror in this case was improperly qualified as argued by McCree.

McCree next argues that there was insufficient evidence to sustain the finding of guilty in this case. There are three well settled rules which govern our review of the verdict in this case. We consider only evidence that is most favorable to the appellee, which is the State in this case. Milburn v. State, 262 Ark. 267, 555 S.W.2d 946 (1977). The jury’s finding of guilt will be upheld if there is any substantial evidence to support it. Id. It is not the function of an appellate court to weigh evidence or judge the credibility of witnesses; that is the function of the jury. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975). There is an abundance of evidence that McCree was at the service station at the time in question. In fact, in his statement he admitted he was there; admitted his gun was used to kill Mrs. Boughton. His defense was that he didn’t do it, that some unknown person did it. It was the province of the jury to accept or reject that argument and they decided to reject it. Several witnesses testified they saw only one black male.

McCree was charged with capital felony murder in that Mrs. Boughton was killed in the course of and in furtherance of a robbery. It is not necessary in Arkansas, under the present law, to actually prove that a robbery occurred. Jarrett v. State, 265 Ark. 662, 580 S.W. 2d 460 (1979). Under Arkansas law, Ark. Stat. Ann. §41-2103, robbery includes attempted robbery. In this case the State did not actually prove beyond a reasonable doubt by direct evidence that money was taken from La Tienda Service Station and that McCree took it. However, it was proved that a bank bag, containing several checks, the property of Evelyn Boughton, was taken. The jury could have concluded that McCree shot Mrs. Boughton and took that bank bag. This would satisfy the Arkansas law that a capital felony murder was committed in the course of or in furtherance of a robbery.

The defense was able to thoroughly search the memory and credibility of the witness Bevill who changed his story. It was for the jury to decide whether he was telling the truth on either occasion and the weight to be given to that testimony.

The third assignment of error is that the trial court abused its discretion by refusing to grant McCree’s attorney a continuance. Although the State offered no objection to the continuance, the judge denied the motion. A trial judge has a duty to promptly dispose of cases. All we have before us is the motion, an affidavit attached to it, and the ruling of the court. Essentially, the argument is that more time should have been given so that the counsel for McCree could better prepare for the trial and locate other witnesses who would assist McCree in his defense.

This case is not like Powell v. Alabama, 287 U.S. 45 (1932), on which the appellant relies, where the defendants were arrested on March 25th, indicted and arraigned on March 31st and tried on April 6th. This trial began May 8, 1978, some two and a half months after McCree had been arraigned. McCree stated at his arraignment on February 22, 1978, that he had retained his present counsel. The fact that counsel was from Little Rock and had to travel to Camden is not, alone, sufficient reason to find that the court abused its discretion in denying the continuance. Also, the motion and affidavit did not specifically name any witness, but indicated there were “possible witnesses” that could be located. The general rule regarding continuances is stated in Rule 27.3, Rules of Criminal Procedure.

The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.

In order to show that the trial judge was wrong it must be proved that there was a clear abuse of discretion and that the ruling of the court prejudiced the defendant. Russell & Davis v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). There is no record of a hearing on the motion for continuance and, based on the bare motion and affidavit that were filed in this case, we cannot say that the court abused its discretion.

The fourth allegation of error is that the Arkansas system which permits a prosecuting attorney to file an information directly in circuit court is unconstitutional. The appellant McCree has been unable to demonstrate in this case any prejudice that would require us to dismiss the charges against him. We have held the Arkansas system constitutional for many years. Penton v. State, 194 Ark. 503, 109 S.W.2d 131 (1937); Dyas v. State, 260 Ark. 303, 539 S.W.2d 251 (1976). Our Rules of Criminal Procedure require that an arrested person who is not released shall be taken before a judicial officer without unnecessary delay. Rule 8.1, Arkansas Rules of Criminal Procedure. McCree was arraigned eight days after the crime, at which time the charges, penalty and his constitutional rights were explained. McCree announced he had retained counsel. The simple fact that a prosecuting attorney can file an information directly against an individual without a pre-trial hearing, such as a grand jury, is not in our judgment an unconstitutional practice. In this case we find no circumstances or facts that would suggest that we should retreat from our decisions, or that the decisions of the United States Supreme Court require dismissal of the charges. See Gerstein v. Pugh, 420 U.S. 103 (1975). McCree’s attorney makes a strong plea in good faith that the Arkansas system ought to be overturned. We will adhere to our previous decisions.

McCree’s last allegation is a little difficult to follow. He argues that the State cannot place on him, as a defendant, the burden of proving that a capital punishment statute is unconstitutional; that the fundamental right to be free from cruel and unusual punishment cannot be burdened by the legislature unless the State shows that the legislation serves a compelling state interest. We have upheld Arkansas ’ statutes on capital punishment and adhere to that precedent. Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). Furthermore, a defendant who is sentenced to life without parole lacks standing to challenge the death penalty. Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976). McCree argues that life without parole is cruel and unusual punishment. We rejected that argument in Dyas v. State, supra.

We have examined the record for all possible legal errors, as is our practice in such cases, and, finding none, affirm the judgment.

Affirmed.


author: John I. Purtle, Justice.

text:
    CALVERT FIRE INSURANCE COMPANY v. CARPET MART OF TEXARKANA, INC. and Thomas D. STANDLEY, Jr.
    78-331
    587 S.W. 2d 1
    Opinion Delivered September 10, 1979
    (In Banc)

      Nolan, Alder son <2? Vickery, for appellant.

      Rubens, Rubens & Saxton, by: Kent J. Rubens; and Ralph J. Blagg, for appellees.
   John I. Purtle, Justice.

This case involves entitlement to the proceeds of a fire insurance policy issued on an aircraft which was subsequently destroyed by fire. The seller, who held the title to the aircraft, the purchaser-owner and a lienholder each claimed part or all of the proceeds of the policy. Payment was made to the titleholder and the named lienholder after the purchaser refused to endorse a draft made to all three. The titleholder filed suit pursuant to the sales purchase contract, and the purchaser defended alleging the Wingo Act, Ark. Stat. Ann. §64-1202 (Repl. 1966), prevented the seller from enforcing the contract. The purchaser also counterclaimed against the seller and made the insurer a third party defendant. The trial court ruled the seller had no standing to sue in Arkansas because it was not authorized to do business in the state. The insurer pleaded estoppel and relied on its contract terms as a defense to paying the claim a second time.

The trial court ruled that the case could proceed to trial only between the purchaser and the insurer and, further, the only issue was estoppel. This ruling was based upon a pretrial order, which was subsequently read to the jury, holding the titleowner had no standing to sue and that the policy was in force at the time of the loss. The court further held, prior to the trial, that unless the purchaser was es-topped he could recover the policy limits. The jury found in favor of the purchaser and the insurer appeals.

We are called upon to rule that the court erred in limiting the insurer’s defense to the issue of whether the purchaser was estopped to deny he acquiesced in the payment to the seller and the listed lienholder. We believe the court did err in limiting the evidence to the issue of estoppel and the case must be remanded.

The facts are not materially in dispute. The lease-sale agreement was entered into in El Dorado, Arkansas, on May 30, 1975, between Carpet Mart of Texarkana, Inc., a Texas corporation, and Thomas D. Standley, Jr., a resident of Crittenden County, Arkansas. Standley was to pay an agreed monthly rental which would be credited to the purchase price. He also agreed to procure fire insurance which would protect the rights of the seller and lienholder. Such policy was procured from Calvert Fire Insurance Company. The policy named Standley and Carpet Mart as insureds and American National Bank of Morristown, New Jersey, as lienholder. The policy contained the standard clause allowing payment as “interest appears.” The face amount of the policy was $35,-000 and it had a $50 deductible clause. The lien was shown on the policy to be in the amount of $21,600 at the time of issue.

The aircraft was totally destroyed by fire on February 1, 1976, shortly after major repairs at a cost of about $6,000, for which a lien was subsequently filed. Calvert determined the plane was a total loss and the salvage was valued at $5,000. Proof of loss was executed by Standley. The proof showed he and Carpet Mart as named insureds with American National as a lienholder. Calvert issued a check for $34,950 payable to all three of the above parties. Carpet Mart attempted to get Standley to endorse the check and return it to them for further disposition. He refused to do so and requested that Carpet Mart endorse it and leave it with him or his attorneys. His reason was that he did not trust Carpet Mart’s representative. On May 28, 1976, Calvert reissued a draft without Standley’s name on it. At the time Calvert issued its second draft it obtained a hold harmless agreement from Carpet Mart. Also, Calvert collected $5,000 from Carpet Mart for the salvage. At no time did Standley object to including the other names on the draft nor did he request, prior to filing suit in July of 1976, that the proceeds be paid only to himself.

Calvert alleges it was error to limit their defense to that of estoppel by Standley. It was agreed between the parties that the Wingo Act ruled Carpet Mart out of the lawsuit as a claimant. As we see it, the matter resolved to a dispute between Calvert and Standley as to whether the proceeds were improperly paid and whether Standley was estopped to make the present claim. Calvert contended it had the right to pay the parties as their respective “interest appeared” at the time. It is not suggested that Calvert was not authorized and doing business in Arkansas. They were no way dependent on Carpet Mart to transact business in this state. Obviously, Calvert would have been subject to suit by Carpet Mart in Texas or American National in New Jersey pursuant to the terms of the insurance policy. Both were shown on the face of the policy to have an interest in the proceeds from any loss. Certainly, Calvert was not an assignee of Carpet Mart and their rights and responsibilities were not dependent upon the status of Carpet Mart.

A claim of usury was urged as a defense to enforcement of a suit to collect on a loan in the case of Seaboard Finance Co. v. Wright, 223 Ark. 351, 266 S.W.2d 70 (1954). While the suit was pending the debtor committed suicide. The credit life insurer paid the proceeds of the policy to the creditor. There we upheld the right of the insurer to pay the creditor until the loan had been declared usurious. We believe the same rationale applies in the present case. Since Calvert made payment before the contract between Standly and Carpet Mart was ever challenged, they were not in error except inasmuch as they may not have properly determined the “interest” of the various parties. The trial court was correct in stating Calvert could not just haul off and pay anybody they wanted to and release their liability under the contract. However, we do not find in the record what the interest of each party amounted to. In Price v. Harris, 251 Ark. 793, 475 S.W.2d 162 (1972), we held that the mortgagee was entitled to proceeds of a fire policy against the claims of the mortgagor where the policy contained a clause “as interest appears.” When a party stands by and fails to assert a claim for proceeds of an insurance policy he cannot later assert it against the interest of those who rely on his silence. Johnson v. Spencer, 222 Ark. 710, 262 S.W.2d 290 (1953); and Whitley v. Irwin, 250 Ark. 543, 465 S.W.2d 906 (1971). A fire loss to a vehicle was involved in Newberry v. Fireman’s Fund Insurance Co., 253 Ark. 330, 485 S.W.2d 731 (1972), and there we held the mortgagee had priority on the proceeds where there was “as interest appears” clause in the insurance policy.

We believe the trial court improperly interpreted the pretrial order to unduly limit Calvert proof at the trial. We hold that Calvert should be allowed to furnish evidence not only of estoppel by Standley but to the effect that they proceeded in compliance with the terms of the policy. The proof will naturally include matters relating to the interest of various parties. The case is remanded with directions to proceed in a manner consistent with the foregoing opinion.

Reversed and remanded.