text:
    Mary Nell BOWMAN et al v. W. D. PHILLIPS Jr., et al
    76-101
    542 S.W. 2d 740
    Opinion delivered October 25, 1976
    [Rehearing denied November 29, 1976.]

      Benny E. Swindell, for appellants.

      Williams <3? Gardner, for appellees.
   George Rose Smith, Justice.

The question here is whether a life tenant, the appellee W. D. Phillips, Jr., who is entitled to the exclusive possession of the property, can maintain a partition suit against the vested remaindermen. We disagree with the chancellor’s conclusion that the suit is maintainable and therefore reverse.

In 1944 W.D. Phillips, Sr., conveyed the 43.75 acres in question to his son, the principal appellee. The deed (a) reserved a life estate in the grantor, (b) granted a life estate to the son after the grantor’s death, and (c) provided that upon the son’s death the property would go to the grantor’s heirs, except that the son’s wife, the appellee Wanda Phillips, would also take an equal share. The elder Phillips died in 1951. The proof, which is limited to the situation at the time of the trial, shows that his heirs now comprise three surviving children and the descendants of five deceased children. This suit for partition was brought by W. D. Phillips, Jr., as the sole life tenant, by his wife Wanda as the owner of a one-ninth interest in the remainder, and by the couple’s son, Paul Douglas Phillips, who was erroneously alleged to be the owner of another one-ninth interest in the remainder. Of course the remainder actually vested at the death of W.D. Phillips, Sr., so that W.D. Phillips, Jr., is the owner of the one-ninth remainder interest which the complaint attributes to his son. Restatement of Property, § 157, Comment j (1936); see also Steele v. Robinson, 221 Ark. 58, 251 S.W. 2d 1001 (1952).

The chancellor correctly found that W. D. Phillips, Jr., owns a life estate in the land and that the remainder interest is vested in equal one-ninth parts in Wanda and in the eight lines of descent, per stirpes. The decree ordered that the land be sold and that the proceeds be divided among the parties according to their interests, which would give W. D. Phillips, Jr., the present value of his life estate in addition to his one-ninth interest as a remainderman.

A life tenant’s right to seek partition must be found in the statute, which allows a partition suit to be brought by “[a]ny persons having any interest in and desiring a division of land held in joint tenancy, in common,... or in coparceny, absolutely or subject to the life estate of another, or otherwise . . .” Ark. Stat. Ann. § 34-1801 (Supp. 1975). In Monroe v. Monroe, 226 Ark. 805, 294 S.W. 2d 338 (1956), we held that the language of the statute allows the partition of property by remaindermen, subject to the life estate of another. We went on to say, perhaps as dictum but with supporting authority, that a single life tenant who is entitled to exclusive possession cannot maintain a partition suit against the remainderman, because the necessary element of a cotenancy is absent.

That case controls this one. In many situations there may be solid reasons of public policy for denying to the life tenant the right to a partition by public sale. He might, for example, be suffering from an illness reducing his life expectancy below that shown by the statutory tables. Or the land might be vacant or otherwise unimproved, so that a successful partition suit and sale would provide the life tenant with a cash return that he would not otherwise receive. For these reasons we think it is for the legislative branch to determine whether a life tenant should have the right to obtain a partition, as against the remainder interest. We cannot find in our present statute any indication that such a right has yet been conferred.

It seems to go without saying, and other courts have held, that a life tenant, when he is, as here, also a remainder-man, can obtain a partition by giving up any claim to the value of his life estate. Phelps v. Domville, 303 S.W. 2d 601, 606 (Mo. 1957); Brown v. Brown, 67 W. Va. 251, 67 S.E. 596, 21 Ann. Cas. 263, 28 L.R.A. (n.s.) 125 (1910). That option is open to W. D. Phillips, Jr., and as we have seen, he and his wife may also seek a partition of the remainder, subject to the life estate. We therefore remand the case for further proceedings.

Reversed and remanded.

We agree: Harris, C.J., and Fogleman and Jones, JJ.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    James GRIGSBY v. STATE of Arkansas
    CR 76-60
    542 S.W. 2d 275
    Opinion delivered October 25, 1976

      Thomas E. Robertson Jr. and Hubert Graves, for appellant.

      Jim Guy Tucker, Atty. Gen., by. Jackson Jones, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Grigsby was sentenced to life imprisonment without parole for the capital felony murder of John Henry Childers while in the perpetration of a robbery. We find no reversible error and affirm.

Among his stated points for reversal are the following:

THE COURT ERRED IN OVERRULING DEFENDANT’S MOTION IN LIMINE THAT JURORS WHO WOULD NOT CONSIDER THE DEATH PENALTY NOT BE EXCUSED FOR CAUSE IN THAT PART OF THE TRIAL AT WHICH DEFENDANT’S GUILT OR INNOCENCE WOULD BE DECIDED.
THE COURT ERRED IN OVERRULING DEFENDANT’S MOTION FOR PAYMENT OF TRAVEL EXPENSES AND WITNESS FEES TO EXPERT WITNESSES WHO WOULD TESTIFY THAT A JURY COMPOSED ONLY OF PERSONS WHO WOULD BE WILLING TO CONSIDER THE DEATH PENALTY IS MORE LIKELY TO CONVICT THAN IS A JURY COMPOSED OF A CROSS SECTION.
THE COURT ERRED IN OVERRULING DEFENDANT’S MOTION FOR A ONE WEEK CONTINUANCE IN ORDER TO PRESENT EVIDENCE THAT A JURY COMPOSED ONLY OF PERSONS WHO WOULD CONSIDER THE DEATH PENALTY IS MORE LIKELY TO CONVICT THAN IS A JURY COMPOSED OF A CROSS SECTION.
THE COURT ERRED IN OVERRULING DEFENDANT’S MOTION FOR A DIRECTED VERDICT AS TO CAPITAL FELONY MURDER AND FIRST DEGREE MURDER AND IN SUBMITTING AN OFFENSE HIGHER THAN SECOND DEGREE MURDER TO THE JURY.
THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT THE STATE MUST PROVE THE ELEMENTS OF A MURDER IN ORDER FOR THE DEFENDANT TO BE CONVICTED OF A CAPITAL FELONY.

We see no point in discussing these points because the record and arguments supporting them are virtually identical to those in Venable v. State, 260 Ark. 201, 538 S.W. 2d 286 (1976). Our rejection of these arguments there is controlling here.

Appellant argues that the court erred in excusing prospective juror Blan, who was acquainted with the appellant and his family and who had found it difficult to say that he could try the case fairly and impartially without being influenced by this acquaintance. Even though he finally responded in the affirmative to appellant’s attorney’s question whether he could render a verdict based on the evidence presented in court and applied to the instructions of law given by the court, the circuit judge pursued the matter further, obviously because the state’s attorney had challenged Blan for cause on the basis of earlier answers. When the judge asked Blan if he felt that he could be totally fair and impartial to both the state and the defendant if he was taken on the jury, Blan answered, “I don’t believe I could be totally fair, no.” The trial judge did not abuse his discretion by honoring the challenge for actual bias. Ark. Stat. Ann. § 43-1919 (Repl. 1964). See Henslee v. State, 251 Ark. 125, 471 S.W. 2d 352.

Appellant argues the following points for reversal:

THE COURT ERRED IN ALLOWING A DEFENSE WITNESS TO TESTIFY ABOUT CARTRIDGE CASES FOUND TWO DAYS AFTER THE OFFENSE WAS ALLEGED TO HAVE BEEN COMMITTED WHEN THE WITNESS WAS UNABLE TO SAY THAT THE SCENE WAS IN THE SAME CONDITION THAT IT WAS IN ON THE DAY OF THE ALLEGED OFFENSE.
THE COURT ERRED IN OVERRULING DEFENDANT’S OBJECTION TO FURTHER DESCRIPTION OF THE SCENE WHERE THE BODY WAS FOUND WHEN THE WITNESS WHO DISCOVERED THE BODY LEFT THE SCENE FOR APPROXIMATELY TWO HOURS AND RETURNED WITH A DEPUTY SHERIFF.

The two points are considered together because they are argued jointly by appellant, who relies upon Oliver v. Miller, 239 Ark. 1043, 396 S.W. 2d 288. The gist of appellant’s argument is that the evidence admitted was too remote to be relevant and that the evidence was prejudicial, particularly since the evidence of murder was circumstantial and important inferences could be drawn from this testimony.

In evaluating this argument, we take into consideration a statement made by Grigsby to a police officer which was subsequently admitted into evidence without objection by appellant. That statement had exculpatory features, but appellant did admit therein that on the evening of the date in question he and Childers had been riding around drinking; the two were alone on a side road off Highway 309, when Grigsby showed Childers a .25 caliber automatic pistol, which Childers examined and started firing. Grigsby was quoted as saying that he grabbed Childers’ arm and the gun went off, after which Childers’ eyes started looking funny and he walked back to the car, sat down on the seat and fell over on it; Grigsby pulled him out, put him in the “edge of the bushes,” took a 120 bill and a $5 bill from Childers’ overalls, threw his billfold over by a tree, and took the car, leaving the man and a little white dog at the scene; he met Billy Belt and Mrs. Velma Smith along the road and told them what he had done. Grigsby stated that he, Mrs. Smith and Belt stopped along the Carbon City Road and fired at a beer can with his .25 caliber pistol, and that he later offered to sell the weapon to a man named Highfield.

Velma Smith had testified substantially as follows:

Appellant came to her house on July 18, 1975. Someone she did not know was in a brown and white Chevrolet that Grigsby was driving on this occasion. Mrs. Smith left with Billy Belt. Later they met Grigsby “coming back to town,” driving the same automobile. Still later they met him “over by Hillard’s farm” coming toward Ozark on Highway 309, still driving the same car. She and Belt proceeded to O’Kane Island and Grigsby followed them there, where they all were drinking beer and talking and Grigsby told them he had killed a guy in Fort Smith, or thought he had. Mrs. Smith and Belt started back to the “Rock,” a tavern in Paris, but stopped on a dirt road, where they were soon joined by Grigsby still driving the same car, when Belt and Grigsby fired several shells at a beer can from a “gun” Grigsby had.

There was evide ice tending to show that John Henry Childers was the person Mrs. Smith had seen at her house in the brown and white Chevrolet and that the vehicle belonged to Childers. There was testimony that Grigsby had also told Warren George Highfield on July 18, 1975, that he had shot a man and that Grigsby had tried to sell a .25 automatic pistol to Highfield.

On Sunday, July 20, Billy Joe Davis was “riding around” in his pickup truck on Highway 309 and turned off on an old lane. After driving about a half mile, he turned around and started to get out of his truck, when he heard a dog barking. Since he was unable to see the dog, he called it. The dog came running out of a roll of wire. Behind the wire, Davis then saw the feet of a human. He immediately came to town and reported to Deputy Sheriff Kenneth Ross that he had found a dead man. This occurred about 10:45 a.m. Davis directed Ross to the place where the body lay. Ross remained there until Sheriff Pritchard and Arkansas State Police Criminal Investigator Stevens arrived at about 12:15 p.m. Ross examined the body. He described the location as a junk yard. He said the body was not easily seen from the road. Albert Helmert, radio dispatcher for the sheriff’s office, testified that he accompanied the sheriff to the scene, where he found four empty cartridges for a small caliber pistol and a billfold. He also testified that he went with Ross, Mrs. Smith and others to a place along Carbon City Road, where six empty “hulls” and one bullet were found.

It is difficult to see how the introduction of the cartridges found at the place Belt and Grigsby fired at a can could have prejudiced appellant. The finding of six bullets and some cartridge cases along the Carbon City Road was relevant only to the identity of the weapon from which the fatal bullets were fired, but there really does not seem to have been any issue on this point.

The medical examiner testified that the death of Childers was caused by multiple .25 caliber gunshot wounds, at least one of which could not likely have been self-inflicted. It was a question for the jury to say, after considering the circumstances, whether the fatal wounds were inflicted by Grigsby or they were accidentally inflicted, or whether someone else had subsequently come to the scene and fired .25 caliber bullets into the wounded body of Childers: The four cartridges found at the scene where the body was found and the four .25 caliber bullets taken from the body were shown by expert testimony to have been fired from the same weapon. This evidence had some bearing on the question whether there was a remote possibility that someone else wounded Childers after Grigsby left. The lapse of two days was not sufficient to make this evidence irrelevant. The description of the scene and the location of the body could also have had some bearing on the real issue, i.e., whether Childers was murdered or whether he was accidentally wounded in the manner described in Grigsby’s statement. Stevens testified that Childers’ body was in a brush area behind a pile of wire approximately 30 feet north of the roadway. This testimony along with that of Ross constituted the only significant description of the scene, except for that given by Davis.

The question of admissibility of this evidence is one of relevance to the issue. In Everett v. State, 231 Ark. 880, 333 S.W. 2d 233, we stated that the test of admissibility of evidence over an objection for irrelevancy is whether the fact offered in proof affords a basis for rational inference of the fact to be proved. It is sufficient if the fact may become relevant in connection with other facts or if it forms a link in the chain of evidence necessary to support a party’s contention. Glover v. State, 194 Ark. 66, 105 S.W. 2d 82. See also, Horne v. State, 253 Ark. 1096, 490 S.W. 2d 806; Williams v. State, 257 Ark. 8, 513 S.W. 2d 793. The state’s evidence on the question whether Childers was accidentally or deliberately wounded was largely circumstantial, and the fact that the body was not readily seen is a circumstance which might be taken to show that Childers had been taken to this scene deliberately and his body left where it would not be readily found.

Too precise admeasurements of logical relevancy should not be used to withhold from a jury circumstances which may shed some helpful light on the issues. State v. Micci, 46 N.J. Super. 454, 134 A. 2d 805 (1957); State v. Smith, 5 Wash. App. 237, 487 P. 2d 227 (1971); State v. Hamilton, 264 N.C. 277, 141 S.E. 2d 506 (1965), cert. den. 384 U.S. 1020, 86 S. Ct. 1936, 16 L. Ed. 2d 1044; Karnes v. Commonwealth, 125 Va. 758, 99 S.E. 562, 4 ALR 1509 (1919). See also, States. Stokes, 250 La. 277, 195 So. 2d 267 (1967); State v. Shiren, 15 N.J. Super. 440, 83 A. 2d 620 (1951), aff’d. 9 N.J. 445, 88 A. 2d 601 (1952); Haley v. State, 84 Tex. Cr. Rep. 629, 209 S.W. 675, 3 ALR 675 (1919). It is enough that the evidence may tend even slightly to elucidate the inquiry or to assist, however remotely, in a determination probably founded on truth. New v. State, 211 S. 2d 35 (Fla. App. 1968); Holmes v. Goldsmith, 147 U.S. 150, 13 S. Ct. 288, 37 L. Ed. 118 (1893). See also, State v. Stokes, supra. When evidence on an issue is circumstantial, it is never irrelevant to put in evidence any circumstance which may make the proposition at issue more or less probable. Johnson v. Commonwealth, 115 Pa. 369, 9 A. 78 (1887). Relevance is determined, not by resemblance to, but by connection with, other facts. Oseman v. State, 32 Wis. 2d 523, 145 N.W. 2d 766 (1966). See also, Karnes v. Commonwealth, supra. Objections to circumstantial evidence upon the grounds of irrelevancy are not favored because the force and effect of circumstantial facts usually, and almost necessarily, depend upon their connection with each other. Bowline v. Cox, 248 Ala. 55, 26 S. 2d 574 (1946).

The latitude of the trial judge’s discretion in admitting circumstantial evidence is great. Holmes v. Goldsmith, supra; Oseman v. State, supra; State v. Alexander, 78 Wyo. 324, 324 P. 2d 831 (1958), cert. den. 363 U.S. 850, 80 S. Ct. 1630, 4 L. Ed. 2d 1733; Bond v. State, 105 Ga. App. 627, 122 S.E. 2d 310 (1961); New v. State, supra; Bowline v. Cox, supra. See also, Karnes v. Commonwealth, supra. Evidence of any fact which aids in establishing the defendant’s guilt or innocence is usually held relevant, even though only a slight inference may be drawn from the fragmentary fact and it is only a link in the chain of facts which must be proved to make the proposition at issue more or less probable. Oseman v. State, supra; State v. Smith, supra; State v. Stokes, supra; Johnson v. Commonwealth, supra. See also, Jenkins v. Commonwealth, 167 Ky. 544, 180 S.W. 961, 3 ALR 1522 (1915); Haley v. State, supra. The trial judge’s determination on the question of admissibility of such evidence is to be reversed only if he has abused his wide discretion. U.S. v. Campbell, 466 F. 2d 529 (9 Cir., 1972), cert. den. 409 U.S. 1062, 93 S. Ct. 571, 34 L. Ed. 2d 516. See also, Holmes v. Goldsmith, supra. It has been said that such an abuse of discretion should not be found by an appellate court unless it manifestly appears that the evidence questioned has no legitimate bearing upon the question at issue and is calculated to prejudice the accused in the minds of the jurors. Moore v. U.S., 150 U.S. 57, 14 S. Ct. 26, 37 L. Ed. 996 (1893).

We find no abuse of the trial court’s discretion and the inability or failure of the state to show that conditions of the scene remained unchanged during Davis’ two hour absence was a matter for the jury’s consideration in weighing the evidence, but did not take the question of admissibility of the evidence outside the scope of the judge’s discretion.

Appellant argues that his motion for directed verdict and reduction of his charge to one of first degree murder should have been granted. This argument is based upon his contention that the only evidence about what happened at the time of the killing showed that he took Childers’ property after the killing, and that there is no evidence that this taking was anything other than an afterthought. For us to rule as a matter of law that the robbery was an afterthought would require that portions of Grigsby’s statement, which was mostly exculpatory, be taken at face value. If indeed Grigsby murdered Childers, and the killing was not accidental, it would be difficult to believe that anything other than robbery motivated the killing. Suffice it to say that the circumstantial evidence here furnishes adequate support for the jury’s finding that Childers was killed in the perpetration of a robbery. See Upton v. State, 257 Ark. 424, 516 S.W. 2d 904.

In his statement, Grigsby said that he was hitchhiking on Highway 10 when Childers picked him up and took him to Childers’ house trailer where they started drinking wine and beer. The appellant, approximately thirty years old, and the deceased, described as an elderly man, spent the afternoon visiting bars and drinking. Grigsby was unemployed and later in the day had to borrow money from Childers to pay for a bottle of whiskey. In his statement, Grigsby said that he had stolen the death weapon from a woman in Fort Smith, from whence he had started his hitchhiking journey. He stated that he had thrown the pistol away.

For the purpose of considering appellant’s argument (which was approached but not actually reached in Upton v. State, supra and Upton v. State, 254 Ark. 664, 497 S.W. 2d 696) there is no substantial difference in the capital felony murder statute under which he was prosecuted, Act 438 of 1973 [Ark. Stat. Ann. § 41-4702 (Supp. 1973)] and its predecessor, Ark. Stat. Ann. § 41-2205 (Repl. 1964), i.e., the definitions were substantially the same. In the earlier statute, murder committed in the perpetration, or attempt to perpetrate, robbery was made murder in the first degree. In the 1973 act the unlawful killing of a human being when committed by a person engaged in the perpetration of or in the attempt to perpetrate robbery was made a capital felony.

We find no room for quarrel with appellant’s assertion that larceny from the body of one killed, as an afterthought, would not constitute a capital felony. We do not agree, however, that the jury was bound to accept his exculpatory statement to the officer or that there was no evidence from which the jury could reasonably infer that the taking of the deceased’s automobile and money was a part of the same acts and transactions in which Childers was killed, and that robbery was the motivating purpose of the incidents taking place at the death scene.

The underlying rationale of the felony-murder rule, both statutory and common law, is that the killing constitutes a part of the res gestae of the accompanying felony and both are parts of one continuous transaction. People v. Mason, 54 Cal. 2d 164, 4 Cal. Rptr. 841, 351 P. 2d 1025 (1960); Bizup v. People, 150 Col. 214, 371 P. 2d 786, cert. den. 371 U.S. 873, 83 S. Ct. 144, 9 L. Ed. 2d 112; Conrad v. State, 75 Ohio St. 52, 78 N.E. 957 (1906); State v. Anderson, 10 Wash. 2d 167, 116 P. 2d 346 (1941). Where the robbery and the killing are so closely connected in point of time, place and continuity of action as to constitute one continuous transaction it is proper to consider both as a single transaction and the homicide as a part of the res gestae of the robbery. Bizup v. People, supra; People v. Mason, supra. The sequence of events is unimportant and the killing may precede, coincide with or follow the robbery and still be committed in its perpetration. Conrad v. State, 75 Ohio St. 52, 78 N.E. 957 (1906); State v. Anderson, 10 Wash. 2d 167, 116 P. 2d 346 (1941).

Where the killing and the felony cannot rationally be disassociated, an inference that the killing was part of the res gestae is justifiable, particularly as against retrospective subjective disavowal. State v. Anderson, supra. Where the circumstances permit an inference that the killing and the robbery were all part of one transaction, the state is not required to prove intent to commit the felony by direct evidence. People v. Mason, supra. It has been aptly said that from the very nature of things it is often impossible for the state to know at just what instant a killing was committed — whether in the commission of a felony or while withdrawing from the scene of a felony. State v. Anderson, 10 Wash. 2d 167, 116 P. 2d 346 (1941); State v. Whitfield, 129 Wash. 134, 224 P. 559 (1924). The Supreme Court of California has said that it has never required proof of strict causal relationship between the felony and the homicide. We agree with that court that the statute was adopted for the protection of the community, not the lawbreaker, and to make punishment of this class of crime more certain and not to relieve the wrongdoer from any probable consequences of his act by placing an unreasonable or unnatural limitation upon the res gestae. People v. Mason, supra.

Intent in such a case as this may be gathered from what was done. State v. Hauptmann, 115 N.J. Law 412, 180 A. 809 (1935). Certainly, the intent may be found from the facts and circumstances in a particular case. Commonwealth v. Hart, 403 Pa. 652, 170 A. 2d 850, cert. den. 368 U.S. 881, 82 S. Ct. 130, 7 L. Ed. 2d 81. In a case in which an accused testified that he struck a fatal blow in self-defense and in a confession had said that he had decided to take his victim’s money as the latter lay on the ground after having been struck, the Pennsylvania Supreme Court held that the argument that the intention to rob originated after the assault on the deceased did not merit serious consideration in view of the jury’s verdict finding the accused guilty of murder in the perpetration of a robbery. The court said that it was immaterial when the design to rob was conceived, if the homicide occurred while the accused was perpetrating or attempting to perpetrate a robbery, pointing out that the circumstances leading up to the attack were indicative of an assault with intent to rob. Commonwealth v. Stelma, 327 Pa. 317, 192 A. 906 (1937). In considering a similar contention, the Pennsylvania court later had this to say in Commonwealth v. Hart, supra:

Defendant’s highly technical argument amounts to this: Unless the Commonwealth proves that the intention to commit a robbery was formed before the beginning of the fatal assault, the evidence cannot amount to a murder which was committed in the perpetration of a robbery. In other words, defendant would require a televised stop-watch in every robbery or felony-killing to prove that the felonious intent existed before the attack. It is rare, we repeat, that a criminal telephones or telegraphs his criminal intent and consequently such intent can be properly found by the jury from the facts and circumstances in a particular case. *****
The law which has been in existence for many centuries in England and for ages in our Country, was enacted for the safety and protection of peaceable citizens of each community and we will not permit it to be thwarted or evaded by such a far-fetched and realistically-absurd construction of the Penal Code.

We agree with the sentiments of the Pennsylvania Supreme Court. We find the circumstantial evidence of intent sufficient to support a finding that appellant was guilty of capital felony.

We have, as we do in cases where the penalty imposed is death or life imprisonment, reviewed the record for other objections made by the defendant during the proceedings in the trial court and find none worthy of consideration.

The judgment is affirmed.

We agree: Harris, C.J., George Rose Smith and Jones, JJ-


author: Conley Byrd, Justice.

text:
    STATE of Arkansas v. Jack BLAND
    CR 76-88
    542 S.W. 2d 497
    Opinion delivered October 25, 1976 (In Banc)
    [Rehearing denied November 22, 1976.]

      Jim Guy Tucker, Atty. Gen., by. Jack T. Lassiter, Asst. Atty. Gen., for appellant.

      Gordon, Gordon & Eddy, by: Allen Gordon, for appellee.
   Conley Byrd, Justice.

The State seeks to take an appeal from an interlocutory order entered on February 19, 1976, following an Omnibus Hearing held pursuant to Ark. Rules of Criminal Procedure, Rule 20.3. The notice of appeal was filed the same date. After obtaining two extensions in the trial court for obtaining a transcript, the attorney general filed the record in this Court on May 20, 1976, Rule 36.10(c), of the Ark. Rules of Criminal Procedure, requires appeals by the state to be filed in this Court within 60 days after the filing of the notice. Since the present appeal was not filed within the 60 day period, the appeal is dismissed.

Appeal dismissed.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    William H. THOMAS v. STATE of Arkansas
    CR 76-111
    542 S.W. 2d 284
    Opinion delivered October 25, 1976 (In Banc)

      Richard L. Mays, of Walker, Kaplan & Mays, P.A., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Involved in this case is the bail bond procedure conducted in the Little Rock Municipal Court. The record shows that petitioner William H. Thomas was arrested on Saturday May 8, 1976, at approximately 11:45 p.m. for allegedly possessing marijuana for sale. Bail at that time by prearrangement of the municipal court for all such offenses was set at $20,000. On Monday May 10, 1976, at petitioner’s first appearance before the municipal court, and when it was determined that he was a resident of the State, the bail was reduced to $5,000 to be made only by a professional bail bondsman. It appears that no hearing was had at that time and on motion of the State the matter of petitioner’s detention was passed to May 26, 1976. On May 11, 1976, petitioner through his present counsel filed a motion to reduce the $5,000 bail bond. In refusing to hold a pretrial release inquiry pursuant to Ark. Rules of Crim. Pro., Rule 8.5 the municipal judge stated:

“It’s going to be my position today and tomorrow that everybody that’s charged with the possession of marijuana with intent to sell or some other hard drugs, it will be Twenty Thousand Dollars to start and reduced then after the Court hears more about the facts to a minimum of Five Thousand unless the Prosecuting Attorney comes in with additional information and recommends a lower bond. That has been my policy. It’s going to be my policy and there’s no use anybody taking this Court’s time trying to change my mind. ...”

Following a hearing in municipal court, petitioner went to the circuit court upon a “Petition for Supervisory Writ of Mandamus and Certiorari and for Writ of Habeas Corpus.” The circuit court held two hearings — one on May 14, 1976, and the other on May 17, 1976. The first hearing was conducted pursuant to Ark. Rules of Crim. Pro., Rule 8.3(c), wherein it was determined that petitioner, while driving an automobile occupied by two or three other men, had been stopped by the police and that a search of the car by the police turned up two pounds of marijuana. The court at that time fixed bail at $5,000 to “be bail by a surety, money bail by a surety or property bond” pending the May 17th hearing. In dismissing the mandamus petition, on May 17th, the circuit court stated:

“THE COURT:
Well, I would want the precedent to set out what I have set out here, and that is that Rule 8.3 is mandatory, that a probable cause hearing must be held, that a pretrial release inquiry must be held.
MR. MAYS:
But that one has been held, in this case?
THE COURT:
One has been held in this case and, if there was any deficiency, it was cured by the one that I held. And I assume that this will take care of any problems we have under this bond and, also, you can put in there that I think that twenty thousand dollars, that I hold that a twenty thousand dollar first—
MR. MAYS:
(Interposing) Pre-set.
THE COURT:
Pre-set bond before the judge has an opportunity to hear and have this pretrail release hearing, which he always has the very next morning, is reasonable. I don’t see anything else we need to cover in there. Court’s adjourned.
MR. MAYS:
Thank you, your Honor.
(THEREUPON, the hearing was concluded.)”

Following the ruling of the trial court, a temporary writ of certiorari was granted by this court releasing petitioner upon “$5,000 bail with surety or by depositing 10% of that bail with the clerk of the Municipal Court.”

Petitioner’s contentions in this court are as follows:

“1. The Circuit Court erred in refusing to direct the Municipal Court to conduct a pretrial release inquiry before setting money bail;
2. The Circuit Court erred in refusing to require the Municipal Court to determine that no other condition would ensure the appearance of the appellant in court before setting money bail; and
3. The Circuit Court erred in refusing to require the Municipal Court to select the least restrictive type of money bail arrangement.”

The Constitution of the State of Arkansas in so far as here pertinent provides:

Art. 2 § 8 “. . . All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.”
Art. 2 § 9. “Excessive bail shall not be required. . . . ”

The Arkansas Rules of Criminal Procedure, promulgated by this Court on January 6, 1976, in so far as here applicable provide:

RULE 8. RELEASE BY JUDICIAL OFFICER AT FIRST APPEARANCE
“RULE 8.1 Prompt First Appearance
An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.
RULE 8.3 Nature of First Appearance
(a) Upon the first appearance of the defendant the judicial officer shall inform him of the charge. The judicial officer shall also inform the defendant that:
(i) he is not required to say anything, and that anything he says can be used against him;
(ii) he has a right to counsel; and
(iii) he has a right to communicate with his counsel, his family, or his friends, and that reasonable means will be provided for him to do so.
(b) No further steps in the proceedings other than pretrial release inquiry may be taken until the defendant and his counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived his right to counsel or has refused the assistance of counsel.
(c) The judicial officer, if unable to dispose of the case at the first appearance, shall proceed to decide the question of the pretrial release of the defendant. In so doing, the judicial officer shall first determine by an informal, non-adversary hearing whether there is probable cause for detaining the arrested person pending further proceedings. The standard for determining probable cause at such hearing shall be the same as that which governs arrests with or without a warrant.
RULE 8.4 Pretrial Release Inquiry: In What Circumstances Conducted.
(a) An inquiry by the judicial officer into the relevant facts which might affect the pretrial release decision shall be made:
(i) in all cases where the maximum penalty for the offense charged exceeds one (1) year and the prosecuting attorney does not stipulate that the defendant may be released on his own recognizance;
(ii) in those cases where the maximum penalty for the offense charged is less than one (1) year and in which a law enforcement officer gives notice to the judicial officer that he intends to oppose release of the defendant on his own recognizance.
(b) In all other cases, the judicial officer may release the defendant on his own recognizance or on order to appear without conducting a pretrial release inquiry.
RULE 8.5 Pretrial Release Inquiry: When Conducted: Nature of-
(a) A pretrial release inquiry shall be conducted by the judicial officer prior to or at the first appearance of the defendant.
(b) The inquiry should take the form of an assessment of factors relevant to the pretrial release decision, such as:
(i) the defendant’s employment status, history and financial condition;
(ii) the nature and extent of his family relationships;
(iii) his past and present residence;
(iv) his character and reputation;
(v) persons who agree to assist him in attending court at the proper times;
(vi) the nature of the current charge and any mitigating or aggravating factors that may bear on the likelihood of conviction and the possible penalty;
(vii) the defendant’s prior criminal record, if any, and, if he previously has been released pending trial, whether he appeared as required;
(viii) any facts indicating the possibility of violations of law if the defendant is released without restrictions; and
(ix) any other facts tending to indicate that the defendant has strong ties to the community and is not likely to flee the jurisdiction.
(c) The prosecuting attorney should make recommendations to the judicial officer concerning:
(i) the advisability and appropriateness of pretrial release;
(ii) the amount and type of bail bond;
(iii) the conditions, if any, which should be imposed on the defendant’s release.
RULE 9. THE RELEASE DECISION
RULE 9.1 Release on Order to Appear or on Defendant’s Own Recognizance.
(a) At the first appearance the judicial officer may release the defendant on his personal recognizance or upon an order to appear.
(b) Where conditions of release are found necessary, the judicial officer should impose one (1) or more of the following conditions:
(i) place the defendant under the care of a qualified person or organization agreeing to supervise the defendant and assist him in appearing in court;
(ii) place the defendant under the supervision of a probation officer or other appropriate public official;
(iii) impose reasonable restrictions on the activities, movements, associations and residences of the defendant;
(iv) release the defendant during working hours but require him to return to custody at specified times; or
(v) impose any other reasonable restriction to insure the appearance of the defendant.
RULE 9.2 Release on Money Bail.
(a) The judicial officer shall set money bail only after he determines that no other conditions will reasonably ensure the appearance of the defendant in court.
(b) If it is determined that money bail should be set, the judicial, officer shall require one (1) of the following:
(i) the execution of an unsecured bond in an amount specified by the judicial officer, either signed by other persons or not;
(ii) the execution of an unsecured bond in an amount specified by the judicial officer, accompanied by a deposit of cash or securities equal to ten per cent (10%) of the face amount of the bond. Ninety per cent (90%) of the deposit shall be returned at the conclusion of the proceedings, provided the defendant has not defaulted in the performance of the conditions of the bond; or
(iii) the execution of a bond secured by the deposit of the full amount in cash, or by other property, or by obligation of qualified sureties.
(c) In setting the amount of bail the judicial officer should take into account all facts relevant to the risk of wilful nonappearance including:
(i) the length and character of the defendant’s residence in the community;
(ii) his employment status, history and financial condition;
(iii) his family ties and relationship;
(iv) his reputation, character and mental condition;
(v) his past history of response to legal process;
(vi) his prior criminal record;
(vii) the identity of responsible members of the community who vouch for the defendant’s reliability;
(viii) the nature of the current charge, the apparent probability of conviction and the likely sentence, in so far as these factors are relevant to the risk of nonappearance; and
(ix) any other factors indicating the defendant’s roots in the community.”

The drafting committee’s comment to Rule 9.2 states: “Money bail in any form ought to be a last resort and should be used only to assure the defendant’s appearance.”

In Stack v. Boyle, 342 U.S. 1, 72 S. Ct. 1, 96 L. Ed. 3 (1951), the twelve petitioners had been indicted in the District Court upon a charge of conspiring to violate the Smith Act. The trial court set bail at $50,000 for each petitioner. The only evidence offered by the Government on a motion for reduction of bond was a certified record showing that four persons previously convicted under the Smith Act had forfeited bail. In holding that the District Court in leaving the bail at $50,000 had violated both statutory and constitutional standards for admission to bail, a majority of the court, in speaking through Chief Justice Vinson, stated:

“First. From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits, the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 156 U.S. 277, 285 (1895). Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.
The right to release before trial is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty. Ex parte Milburn, 9 Pet. 704, 710 (1835). Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is ‘excessive’ under the Eighth Amendment. See United States v. Motlow, 10 F. 2d 657 (1926, opinion by Mr. Justice Butler as Circpit Justice of the Seventh Circuit).
Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant. The traditional standards as expressed in the Federal Rules of Criminal Procedure are to be applied in each case to each defendant. In this case petitioners are charged with offenses under the Smith Act and, if found guilty, their convictions are subject to review with the scrupulous care demanded by our Constitution. Dennis v. United States, 341 U.S. 494, 516 (1951). Upon final judgment of conviction, petitioners face imprisonment of not more than five years and a fine of not more than $10,000. It is not denied that bail for each petitioner has been fixed in a sum much higher than that usually imposed for offenses with like penalties and yet there has been no factual showing to justify such action in this case. The Government asks the courts to depart from the norm by assuming, without the introduction of evidence, that each petitioner is a pawn in a conspiracy and will, in obedience to a superior, flee the jurisdiction. To infer from the fact of indictment alone a need for bail in an unusually high amount is an arbitrary act. Such conduct would inject into our own system of government the very principles of totalitarianism which Congress was seeking to guard against in passing the statute under which petitioners have been indicted.”

In a separate opinion Justice Jackson elaborated:

“It is complained that the District Court fixed a uniform blanket bail chiefly by consideration of the nature of the accusation and did not take into account the difference in circumstances between different defendants. If this occurred, it is a clear violation of Rule 46(c). Each defendant stands before the bar of justice as an individual. Even on a conspiracy charge defendants do not lose their separateness or identity. While it might be possible that these defendants are identical in financial ability, character and relation to the charge — elements Congress has directed to be regarded in fixing bail — I think it violates the law of probabilities. Each accused is entitled to any benefits due to his good record, and misdeeds or a bad record should prejudice only those who are guilty of them. The question when application for bail is made relates to each one’s trustworthiness to appear for trial and what security will supply reasonable assurance of his appearance.”
“But the protest charges, and the defect in the proceedings below appears to be, that, provoked by the flight of certain Communists after conviction, the Government demands and public opinion supports a use of the bail power to keep Communist defendants in jail before conviction. Thus, the amount is said to have been fixed not as a reasonable assurance of their presence at the trial, but also as an assurance they would remain in jail. There seems reason to believe that this may have been the spirit to which the courts below have yielded, and it is contrary to the whole policy and philosophy of bail. This is not to say that every defendant is entitled to such bail as he can provide, but he is entitled to an opportunity to make it in a reasonable amount. I think the whole matter should be reconsidered by the appropriate judges in the traditional spirit of bail procedure.”

Obviously Rule 8.5, supra, mandates that the judicial officer hold a pretrial release inquiry upon the first appearance of an arrested person. Likewise, Rule 9.2 mandates a determination that no other condition would ensure the appearance of the arrested person before setting a money bail.

When we consider the record before us with reference to the applicable law and the purpose of pretrial bail, we must agree with petitioner that the circuit court erred in refusing to direct the municipal court to conduct a pretrial release inquiry before setting money bail. The municipal court’s adamantive bail requirements in drug arrests of $20,000 money bail at time of arrest with a reduction to $5,000 money bail for state residents can hardly be classified as a pretrial release inquiry. It would be putting form above substance to classify an inquiry limited to an arbitrary determination of whether the bail would be $20,000 or $5,000 money bail as a pretrial release inquiry within the meaning of Rule 8.5, supra. Consequently, we need not determine the nature and extent of a hearing necessary to satisfy the requirements of a pretrial release inquiry. In this connection we must note that The Honorable Municipal Judge was fearful that such inquiries would seriously impede the business of the municipal court. However, we must point out that the Constitution of this State and the foregoing Rules place much stress on the individual rights of persons and were drafted with the view that the authorities would discharge their responsibilities by providing sufficient courts and courtroom facilities for the protection of those individual rights.

Since the Ark. Rules of Criminal Procedure were drawn from the standpoint that money bail in any form should be used only as a last resort to ensure the appearance of an accused in court, we must agree with petitioner that the circuit court erred in refusing to require the municipal court to make determination that no other condition would ensure petitioper’s appearance in court before setting money bail only-

Finally, we must agree with petitioner that Rule 9.2 contemplates that in fixing money bail, the judicial officer will use the least restrictive type of money bail arrangement set out in Rule 9.2(b) for securing the appearance of an arrested person.

The State to sustain the action of the circuit court contends that if there were any deficiencies in the municipal court then they were cured by the proceedings in the circuit court. This contention is not sustained by the record which shows bail fixed by the circuit court solely upon the offense charged and without regard to the individual responsibility of appellant. The tenor of the record before us is that a person arrested on a drug charge must either remain in jail or forfeit a considerable sum to a professional bail bondsman. Thus in either case the arrested person is substantially penalized before trial. The spirit of the fixing of bail by the trial court contravened the drafting committee’s view that “money bail in any form ought to be a last resort and should be used only to assure the defendant’s appearance.”

The State also suggests that certiorari is not the proper remedy to review the proceedings in the circuit court. However, we pointed out in State v. Nelson, Berry Petroleum Co., 246 Ark. 210, 438 S.W. 2d 33 (1969), that certiorari is available in the exercise of this court’s superintending control over a tribunal which is proceeding illegally and where there is no other adequate mode of review.

Writ granted.

Holt, J., not participating.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. In concurring, I disagree with only one particular of the majority opinion. I cannot agree that the circuit court did not conduct an adequate pretrial release inquiry. The circuit judge specifically found, and held, that only money bail would insure appellant’s appearance, set the bail at $5,000 and declined to allow the payment of ten percent of the face amount of the bail into court, prescribing that bail be in the form of either a surety or property bond. The trial judge specifically stated that he did not feel that this was the proper case for a cash deposit of ten percent of the bail. It appears that the circuit judge did take into consideration relevant factors and made certain findings in that regard. He also found, as a basis for requiring money bail, that there was a probability of conviction and a substantial sentence of imprisonment, remarking that juries deal harshly with the offense with which appellant was charged. I do not believe that this requirement made by the circuit court mandated jail or forfeiture of a bail bondsman’s fee. One as reliable as appellant is represented to be would likely be able to make a “property bond” without risking the fee.

      The charge of a professional bail bondsman is regulated by the trial court, Ark. Stat. Ann. § 43-732 (Repl. 1964), and ordinarily amounts to 10% of the face amount of the bond.


author: Elsijane T. Roy, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Joe TAYLOR Jr. et al
    76-91
    542 S.W. 2d 498
    Opinion delivered October 25, 1976
    [Rehearing denied November 22, 1976.]

      Thomas B. Keys and Philip N. Gowen, for appellant.

      Lightle, Tedder, Hannah & Beebe, for appellees.
   Elsijane T. Roy, Justice.

This action involves the second appeal of this condemnation case. See Arkansas State Highway Commission v. Taylor, 256 Ark. 681, 509 S.W. 2d 817 (1974).

Upon the second trial in July, 1975, the jury returned a verdict in the amount of $56,550. Appellees filed a motion to set aside the verdict, and on September 5, 1975, the trial court, in response to the motion, granted a new trial to appellees. From said order this appeal is brought.

Ark. Stat. Ann. § 27-1901 (Repl. 1962) governing the granting of a new trial reads in material part as follows:

“New trial” defined — Grounds — A new trial is a reexamination in the same court of an issue of fact after a verdict by a jury or a decision by the court. The former verdict or decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party:
First. Irregularity in the proceedings of the court, jury or prevailing party, or any order of court or abuse of discretion, by which the party was prevented from having a fair trial.

Effective January 1, 1975, this Court adopted Rule 16 of the Uniform Rules of Procedure for Circuit, Chancery and Probate Courts which required the lower court to set out with particularity the specific ground or grounds for its decision in the order granting a new trial. The trial court complied with Rule 16, and the order setting aside the verdict and granting the new trial enumerated four grounds.

The first ground was the error of the clerk in preparing the list of jurors submitted to the parties for the purpose of making their strikes. The order states:

(a) Because of the irregularity in the proceedings of the Court, in that the name of one of the jurors was omitted from the list of jurors prepared by the Clerk and submitted to the parties for the purpose of making their strikes; that said list did not contain 18 names, but only had thereon 17; that after the parties made their strikes the Court then added the name of the 18th juror, to wit, one Dee Barnes.

The list of persons drawn and called, which was prepared by the clerk of the court, omitted the name of Dee Barnes. This was clearly an irregularity in the proceedings of the court. This error became more important when Mr. Barnes became the foreman of the jury.

We have held many times that a trial judge’s order granting a new trial upon a statutory ground should not be reversed in the absence of manifest abuse of his discretion. Law v. Collins, 242 Ark. 83, 411 S.W. 2d 877 (1967); Blackwood v. Eads, 98 Ark. 304, 135 S.W. 922 (1911). The showing that this discretion was abused must be much stronger when a new trial has been granted than when it is denied. Worth James Construction Co. v. Herring, 242 Ark. 156, 412 S.W. 2d 838 (1967); Heil v. Roe, 253 Ark. 139, 484 S.W. 2d 889 (1972). We find no abuse of discretion by the trial court in this case.

Since the first reason given by the trial court for granting a new trial constitutes sufficient justification for this action, we need not discuss those additional grounds enumerated in the order.

Affirmed.

We agree. Harris, C.J., and Byrd and Holt, JJ.


text:
    John NEIKIRK v. STATE of Arkansas
    CR 76-79
    542 S.W. 2d 282
    Opinion delivered October 25, 1976

      Appellant, Pro Se.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

In October, 1975, appellant was stopped by an Arkansas State Trooper on Interstate 30 for traveling 73 miles an hour in a 55 mile per hour zone. It was stipulated that the posted speed at the site was 75 miles per hour prior to the reduction to the 55 mile per hour limit. Appellant admits he was driving in excess of the posted limit. He was fined $5 and costs for the violation, and he lodges this appeal raising numerous constitutional issues.

Appellant first avers that the “Congressional speed limit” is not a regulation of interstate commerce and that, in setting the speed limit in Arkansas, Congress acted beyond the scope of its powers under the Commerce Clause of the United States Constitution.

We do not agree with appellant. Congress established the acceptable speed limits to be used on all public highways, but the States had the right to accept or reject the recommended speed limit subject to certain penalties. The Arkansas Highway Commission pursuant to statutory procedures established the Arkansas 55 mile per hour limit. See Ark. Stat. Ann. § 75-601 et seq. (Supp. 1975). These limits are based upon engineering and traffic investigations of the Commission. See § 75-601, supra. The Commission adopted the suggested national standard in conformity with its own investigations and thus it, and not the Congress, established the State limit. Appellant’s position here, therefore, is without merit.

Appellant’s next contention is that the “Congressional speed limit” violates the constitutional guarantee to Arkanaas of a republican form of government. The thrust of this allegation seems to be that the speed limit has not been established by the State and the people have been deprived of some right. This argument is without merit since the people by legislative process have created the Highway Commission and have vested it with the authority to establish and to post speed limits in Arkansas.

Appellant also argues the speed limit is violative of the Fifth and Fourteenth Amendments to the United States Constitution because the action of Congress, as endorsed and adopted by this State, reducing the national speed limit denies him both due process and equal protection of the law.

In Yarbrough v. Ark. State Highway Commission, 260 Ark. 161, 539 S.W. 2d 419 (1976), this Court had before it a constitutional attack upon the Federal Highway Beautification Act and the Arkansas enabling legislation adopting the guidelines prescribed by the Federal Act regulating the display of signs along certain highways. The legislation was held valid and constitutional issues similar to the ones raised herein were discussed at length.

In National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), the Court said:

It is established beyond peradventure that the Commerce Clause of Art. 1 of the Constitution is a grant of plenary authority to Congress. That authority is, in the words of Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat (22 US) 1, 6 L Ed 23 (1824), “ . . . the power to regulate; that is to prescribe the rule by which commerce is to be governed.” Id., at 196, 6 L Ed 23.
* * *
“[e]ven activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations.” Fry v. United States, 421 US 542, 547, 44 L Ed 2d 363, 95 S Ct 1792 (1975).

Accordingly, we find this contention without merit.

Appellant further urges that he has been penalized because no special classification based on fuel economy has been made. Since fuel economy vehicles can be driven at more than 55 miles per hour while using less gasoline than other less economical conveyances use when driving at the prescribed limit, appellant insists a classification based on fuel economy should have been made.

Appellant’s “classification” is incidental to a broad standard covering all vehicle operators, and the classification is in no way arbitrary or invidious. Furthermore the obvious impossibility of establishing a variable speed limit correlative to mileage per gallon per vehicle is immediately apparent. A constant limit can provide the only manageable regulation of vehicular speed.

As to appellant’s contention of denial of due process, over 40 years ago in Nebbia v. New York, 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940 (1934) the Court stated:

The Fifth Amendment, in the Field of federal activity, and the Fourteenth, as respects state action, do not prohibit governmental regulation for the public welfare. * * * And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. * * *

See also Gruenwald v. Gardner, 390 F. 2d 591 (2d Cir. 1968), cert. denied 393 U.S. 982, 89 S. Ct. 456, 21 L. Ed. 2d 445 (1968). Appellant has made no showing that the regulation as it applies to him is arbitrary, unreasonable or capricious. So this contention is without merit.

Other arguments urge that Congress has illegally forced the State into a position of compliance with a federal mandate. In City of Burbank, et al. v. Lockheed Air Terminal, Inc., et al., 411 U.S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973), quoting from the early case of Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 13 L. Ed. 996 (1851), the Court said:

* * * Whatever subjects of this power [to regulate commerce] are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress. * * *

Interstate highways are established for the benefit of all, and insofar as the Congressional determination that the speed limit of 55 is the standard for maintenance of that general welfare, the power is not exercised either arbitrarily or discriminatorily, but with reason and judgment. A declared national objective of curtailing needless energy consumption affects the national economy and is a legitimate purpose.

Appellant also argues that Congress has unlawfully assumed the policing of highways which is a State power. The answer to this contention is that Congress has not infringed upon the State’s right to police the highways and to enforce the speed limit.

We also have considered all other points raised by appellant and find them to be without merit.

Affirmed.

We agree. Harris, C.J., and Byrd and Holt, JJ.


author: George Rose Smith, Justice.

text:
    Leon RABORN v. R. M. BUFFALO et ux
    76-122
    542 S.W. 2d 507
    Opinion delivered November 1, 1976

      Tom Tanner, for appellant.

      Charles A. Walls, Jr., for appellees.
   George Rose Smith, Justice.

This is a boundary line dispute. The chancellor, in fixing the boundary in accordance with certain fences and iron pins, relied upon acquiescence in the boundary line (and to a lesser extent upon adverse possession) that continued from 1953 until 1971, this suit being filed in 1975. The pivotal issue is whether the chancellor’s conclusions are correct in view of the fact that during the 18-year period in question the right to possession along the disputed line was primarily vested in life tenants rather than in fee simple owners.

The really material facts are not in dispute. The appellant, Leon Raborn, and the principal appellee, Dorothy Buffalo, are brother and sister. The disputed boundary runs east and west and is three quarters of a mile long. Leon owns the three contiguous forties that lie along the north side of the line. Dorothy and her husband own the corresponding three contiguous forties that lie along the south side of the line.

In 1953 Leon and Dorothy’s parents, George Raborn and his wife, owned all the six forties except the middle one south of the line. On January 6, 1953, the elder Raborns conveyed the three northern forties to Leon and the two southern forties to Dorothy. Both deeds reserved a life estate in the grantors as long as either of them should live. George Raborn survived his wife and owned the life estate until his death in 1971. In 1955 the Buffalos acquired their middle forty by purchase from a third person.

During the pertinent years the two western forties and the two middle forties were in cultivation; the two eastern forties were in woods. There was a meandering fence through the woods, north of the true line, but at the trial the Buffalos’ attorney readily conceded that it was “a fence of convenience” and did not mark the boundary. The chancellor, however, fixed the line through the quarter mile of woods by drawing a straight line from an iron pin at the eastern end of that fence to another iron pin at its western end.

Along the remaining half mile of the disputed boundary, dividing the four forties to the west, there was a fairly straight fence lying north of the true dividing line. The chancellor, relying upon acquiescence and adverse possession, fixed the boundary along that fence line.

We consider first the disputed boundary between the two middle forties, for here the Buffalos’ claim of title by acquiescence is bolstered by their claim of title by adverse possession. The facts are that from 1953 until 1971 the elder Raborn, under the reserved life estate, was in possession of the tract north of the fence. After the Buffalos’ purchase of their middle forty in 1955 they were continuously in possession of that tract, up to the fence. Upon this proof the chancellor fixed the fence line as the boundary.

Under our decisions the Buffalos’ claim of title by adverse possession must fail. The elder Raborn’s possession was solely attributable to his life tenancy, his son Leon being the remainderman. The Buffalos, it is true, were asserting title from a completely independent source, hostile both to the life tenant and to the remainderman. Even so, adverse possession was not effective against the remainderman until the termination of the life estate. Our statute with regard to the recove y of land provides that the action must be brought within seven years after the right to maintain the suit shall accrue. Ark. Stat. Ann. § 37-101 (Repl. 1962). In view of that language we have held, upon facts like those now before us, that the statute does not begin to run against the remainder-man until the termination of the life tenancy. Heustess v. Oswalt, 253 Ark. 730, 488 S.W. 2d 707 (1973); Hayden v. Hill, 128 Ark. 342, 194 S.W. 19 (1917). Thus the appellees’ claim of title by adverse possession cannot be sustained.

The same conclusion must be reached with respect to the Buffalos’ claim of title by mutual acquiescence in the fence line. The principle of title by long acquiescence in a boundary rests upon the assumption of an implied agreement. We have said that in such circumstances “the law will presume an agreement concerning the boundary,” and that by their long acquiescence the adjoining landowners “apparently consent” to the line. Stewart v. Bittle, 236 Ark. 716, 370 S.W. 2d 132 (1963). There being no indication in the proof that the elder Raborn acted or had authority to act for his son Leon, the remainderman, it follows that any acquiescence on the part of the father would not be binding on the son.

What we have said also disposes of the controversy with regard to the east one third and the west one third of the disputed line. In both instances the elder Raborn was in possession, as life tenant, of the forties on each side of the disputed line. If he could not bind the remainderman by acquiescence in a line beine adversely asserted by someone else, obviously his acquiescence in his own possession on both sides of the line would be even more ineffective.

The decree is reversed and the cause remanded for the entry of a decree fixing the boundary line in accordance with the original Government survey, as shown by the appellant’s proof.

We agree. Harris, C.J., and Fogleman and Jones, JJ.


author: J. Fred Jones, Justice.

text:
    PROVIDENTIAL LIFE INSURANCE COMPANY v. Oscar D. PRICE, Special Administrator of the Estate of Vera M. PRICE, Deceased
    76-97
    542 S.W. 2d 504
    Opinion delivered November 1, 1976

      Arnold, Arnold & Lavender, Lid., by: William G. Lavender, for appellant.

      Lingo, Griffin & Johnson, by: Kirk D. Johnson, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Providential Life Insurance Company from an adverse circuit court judgment in a suit on a hospitalization insurance policy issued to Miss Vera M. Price, now deceased.

The decedent-insured, Miss Price, died on or about October 9, 1974, following a lengthy illness in which she was treated in several hospitals including the Arkansas State Hospital, Benton Unit, from May 30, 1974, until August 19, 1974. Following the death of Miss Price, her brother Oscar D. Price was appointed special administrator of her estate. The Arkansas State Hospital made demand upon the estate for 81 days hospitalization at $20 per day, amounting to $1,-620, and the appellee administrator made demand upon the appellant insurance company for the maximum hospital indemnity coverage of 30 days at $30 per day as provided in the policy.

The appellant insurance company denied the claim because of an exclusionary provision in the policy which reads as follows:

No payment for any indemnity shall be made by the company for any loss caused or contributed to by venereal disease, mental infirmities, rest cures, alcoholism, abortion, threatened abortion, drug addiction, any intentionally self inflicted injury, attempt of suicide — while sane or insane, while committing a felony, or confined to any hospital owned or operated by the Federal or State Government or agency thereof, political subdivision or agency thereof, or any charitable institution where the insured is not obligated to pay, or services rendered for the treatment of any abnormal condition existing, either active or inactive, before the date of this policy. (This exception includes all deformities, ailments, or prior injuries which may thereafter become aggravated by subsequent injuries or diseases.)

The appellee administrator filed suit in circuit court for the amount claimed as indemnity, together with unearned premium paid in the amount of $30.02, and also for attorney’s fee and penalty and court costs. The appellant admitted the material facts as set out in the complaint; admitted that it owed the $30.02 in unearned premium which it tendered into the registry of the court, but denied liability for the hospitalization because of the aforesaid exclusionary clause in the policy.

The case was tried before the court sitting as a jury and the court found from the stipulations by the parties that 19 days of the maximum 30-day allowance under the policy had been paid for confinement in a Texarkana hospital and the court entered judgment in favor of the appellee Price for $330, together with 12% penalty and $475 attorney’s fee, making a total judgment of $844.60 together with costs.

The appellant argued before the trial court that the effect of the exclusionary language used in the policy was to preclude any benefits while the insured was a patient in any government institution, regardless of responsibility to pay and that the phrase “where the insured is not obligated to pay” referred only to a charitable institution, and did not apply to any other medical facility operated by a governmental agency.

On appeal to this court the appellant contends “the lower court erred in finding that the exclusionary language of the policy in question did not exclude coverage while the insured was confined in the state hospital.” In the appellant’s brief and argument it recites that the question here is reduced to one narrow issue, that being: “Does the exclusionary clause of the insurance contract in question exclude coverage when the insured is hospitalized in a state owned and operated hospital, whether or not the insured is required to pay for the services received there?” The appellant then stated in its brief as follows:

The Circuit Court’s memorandum opinion, as incorporated in its judgment, found that the questioned language conferred benefits upon an insured patient who is obligated to pay for hospital services, whether or not the hospital be a charitable or governmentally owned or operated one.

The appellant then sets out the exclusionary clause, supra, in its entirety and then states:

Appellant maintains that the quoted language is clear and unambiguous; that it specifically excludes coverage when the insured is hospitalized in a state owned and operated hospital, as was Appellee’s decedent here; and that it makes no difference whether or not the insured has to pay for the services received at the state owned and operated hospital since the modifying phrase, “where the insured is not obligated to pay,” relates only to charitable institutions.

The Texas case of Dillingham v. American Security Life Ins. Co., 384 S.W. 2d 920, relied upon by the appellant, related to a question different from the one in the case at bar. The policy in Dillingham provided:

This policy does not cover hospitalization for nervous or mental disorders, rest cures, diagnosis, syphilis or venereal disease, dental treatment, loss when hospital facilities are furnished by the City, the state, the Federal government or Veterans Administration. . . .

The appellant-insured was confined in the John Sealy Hospital, which was a State of Texas agency, and was billed for the services. In his suit on the policy he contended that the exclusionary clause “loss when hospital facilities are furnished by the City, the state, the Federal government or Veterans Administration” did not apply since he was charged for the services. After pointing out that the policy was clearly one of indemnity against loss suffered by the assured by reason of hospital expenses he pays, or is obligated to pay, in certain hospitals, the .court, in affirming the trial court judgment in favor of the company, said:

We think the term is generally used to mean supply, provide or make available. While the term is used variously as applied to particular situations, in none of the definitions given is the term used to mean make available, provide, or supply without charge or compensation. In fact, the definitions in no way relate the meaning of the term of compensation or not.

It is noted in the case at bar that the entire exclusionary provision of the policy is in one continuous sentence. The first part defines the diseases or related conditions for which indemnity would not be paid, and the second part of the sentence refers to the institutions in which the hospital service or medical treatment is rendered. The first part of the sentence excluded losses caused or contributed by venereal disease, mental infirmities, rest cures-, etc., and the second part of the sentence excludes coverage while “confined to any hospital owned or operated by the Federal or State Government or agency thereof, political subdivision or agency thereof, or any charitable institution where the insured is not obligated to pay.”

We agree with the trial court that the language employed in the insurance policy here involved is subject to two interpretations and we are unable to say the court erred in interpreting the provision adverse to the contention of the insurance company who prepared the policy. See Travelers Protective Ass’n of America v. Stephens, 185 Ark. 660, 49 S.W. 2d 364; State Farm Mut. Auto Ins. Co. v. Baker, 239 Ark. 298, 388 S.W. 2d 920.

The judgment is affirmed.

The appellee is awarded judgment for $300 as attorney’s fee for services on this appeal.

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


text:
    Andie O. PATTY v. STATE of Arkansas
    CR 76-59
    542 S.W. 2d 494
    Opinion delivered November 1, 1976 (In Banc)

      John Norman Warnock, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Sam I. Bratton Jr., Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Andie O. Patty was convicted at a jury trial for manufacturing marijuana, a controlled substance, in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1975) and was sentenced to seven years in the penitentiary.

As a result of a search conducted by law enforcement officers, about 60 young marijuana plants were found growing under apparent cultivation on the appellant’s premises, with one large plant growing in her backyard. Some marijuana seed and cigarette butts containing marijuana were found in her house. The plants were confiscated and the appellant readily admitted to the police officers that the plants belonged to her; that she plantéd the seed and was producing the marijuana for her own use. The appellant Patty testified at her trial that she made a tea from marijuana seed and extracted juice from the marijuana plants and drank the tea and juice as a cure and to prevent the recurrence of cancer, and that this treatment had been very effective for that purpose. She said she intended to harvest the young marijuana plants within about a week after she was arrested and the plants were confiscated. She said she intended to extract the juice from the plants by running them through a juicer, and intended to drink the juice for the cure and prevention of cancer which she thought was recurring in her body. The appellant was originally charged with the possession of marijuana for the purpose of delivery or sale and with manufacturing marijuana. She was acquitted on the charge of possession with intent to sell but was convicted, as already stated, on the charge of manufacturing.

On appeal to this court the appellant has designated eight points on which she relies for reversal but we shall not discuss them separately because most of them were based on the contention that by statutory exemption marijuana may be legally grown by an individual for his own use. This contention was advanced and rejected on the second appeal in the case of Bedell v. State, 260 Ark. 401, — S.W. 2d — (1976), which opinion was handed down on the same day the case at bar was orally argued. In Bedell we said:

The appellant is mistaken in his argument that the manufacture of a controlled substance for one’s own use is not an offense. The personal-use exemption applies only to the preparation or compounding of such a substance. Ark. Stat. Ann. § 82-2601 (m) (Supp. 1975). Manufacture, however, includes production, which in turn includes planting, cultivating, and growing the substance. § 82-2601 (u). There is abundant proof that Bedell was growing marijuana on his farm. In fact, he so admitted on the witness stand.

Ark. Stat. Ann. § 82-2601 (m) (Supp. 1975), above referred to, reads as follows:

“Manufacture” means the production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance.

The appellant also argues that there are two sections of the statute providing different penalties for the manufacture of marijuana and that the trial court erred in not reducing the charge against the appellant to the lesser penalty set out in Ark. Stat. Ann. § 82-2618 (Supp. 1975) which reads as follows:

DISTRIBUTION—Criminal penalties.
(a) It is unlawful for any person:
(1) who is subject to this Act [§§ 82-2601 — 82-2638] to distribute or dispense a controlled substance in violation of Section 2 [§ 82-2616] of Article III;
(2) to manufacture a controlled substance not otherwise authorized by the laws of this State, or to distribute or dispense a controlled substance not authorized by the laws of this State;
(3) to refuse or fail to make, keep or furnish any record, notification, order form, statement, invoice or information required under this Act;
(4) to refuse an entry into any premises for any inspection authorized by this Act; or
(5) knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place, which is resorted to by persons using controlled substances in violation of this Act for the purpose of using these substances, or which is used for keeping or selling them in violation of this Act.
(b) Any person who violates this Section is guilty of a crime and upon conviction may be imprisoned for not more than one [1] year, fined not more than $25,000 or both.

It will be noted that this provision was contained in the original Controlled Substances Act, Act 590 of 1971. The 1971 Act was amended by Act 186 of 1973 whereby marijuana was removed from Schedule I of the original Act and was placed in separate Schedule VI along with tetrahydrocannabinol, and the penalty for manufacturing marijuana is provided for in § 82-2617 which reads in part as follows:

(ii) any other controlled substance classified in Schedule I, II, III, or VI is guilty of a felony and upon conviction may be imprisoned in the state penitentiary for not less than three (3) years nor more than ten (10) years, fined not more than SI5,000, or both.

There has been considerable confusion growing out of the amendments to the Controlled Substances Act pertaining to marijuana. See White v. State, 260 Ark. 361, 538 S.W. 2d 550 (1976), and Bedell v. State, 257 Ark. 895, 521 S.W. 2d 200. “Manufacture” includes “production” and “propagation” (§ 82-2601 [m]) and “production” includes the manufacture, planting, cultivation, growing or harvesting of a controlled substance (§ 82-2601 [u]).

The appellant admitted that she planted, cultivated and grew marijuana and intended to harvest it. She contended, however, that she could not be guilty of manufacturing marijuana because the term “manufacture” did not include the preparation for her own use and she intended to extract the juice from the plants for her own use. The fallacy of this contention lies in the fact that the appellant was not charged, tried or convicted for the “conversion or processing of a controlled substance” or with manufacturing a controlled substance “by extraction from substances of natural origin.” She was charged, tried and convicted for manufacturing the marijuana by planting, cultivating and growing it, which apparently is the only way it can be manufactured or produced, and the personal reasons one has for such production are of little consequence.

The appellant argues that a witness, Lelland Walker, invoked his Fifth Amendment rights against self-incrimination when called to testify and the prosecuting attorney argued to the jury that Walker was afraid of self-incrimination because he had purchased marijuana from the appellant. The prosecutor’s argument and any objections thereto are not abstracted, and the appellant’s cbntention she was entitled to a mistrial is without merit. Furthermore, the appellant was acquitted of possession with intent to sell or deliver.

The appellant contends, however, that she learned after the jury returned its verdict that one Curtis Willingham had heard an adverse witness, Mr. Turner, tell Walker that he could invoke his Fifth Amendment rights and did not have to testify. It appears that Willingham was called as a witness by the appellant in support of her motion for a new trial, but the trial court sustained the state’s objection to Willingham’s testimony offered out of the presence of Turner and Walker as hearsay. Apparently the state did not participate in any alleged discussion between Turner and Walker and no proffer as such was made of what Willingham would have testified.

Furthermore, as already stated, the appellant was acquitted of possession of marijuana with intent to deliver or sell and was only convicted of manufacturing by growing it, which she readily admitted.

The judgment is affirmed.


text:
    Glen R. VAUGHT and Carolyn Sue VAUGHT v. Norman SATTERFIELD and Wilma SATTERFIELD
    76-116
    542 S.W. 2d 502
    Opinion delivered November 1, 1976

      Cearley, Gitchell, Bogará & Mitchell, for appellants.

      Patterson & Welch, for appellees.
   Conley Byrd, Justice.

From a directed verdict in favor of appellees Norman Satterfield and his wife, the appellants Glen R. Vaught and his wife appeal contending that the failure of appellees to disclose a defect while selling their house to appellants constituted fraud upon which appellants were entitled to damages.

The record shows that in the early spring of 1971, the Satterfields owned a house at 810 “F” Street in North Little Rock. The house was constructed on a hillside lot that had been excavated in such manner that there was a steep incline sloping from the rear of the house up to the rear property line. About three feet behind the house was a retaining wall. In the early spring the Satterfields contracted with H. W. Tucker Company to construct a concrete swale immediately behind the house. When the Satterfields found out that the concrete swale did not cure the water seepage problem in the house, they listed the house with National Realty Company. Appellant, Glen R. Vaught, who had been issued a real estate license as a salesman with National Realty Company went with Paul Harris, an agent of National Realty Company, to look at the house about August 1, 1971. Appellant Vaught also looked at the house some three days to a week later. As a result of what he saw during those visits the Vaughts, without ever seeing or talking to the Satterfields, purchased the house for $4,000 down and assumed an outstanding mortgage in the approximate amount of $12,000. The purchase price of the house was discounted $600 through an arrangement between Paul Harris and appellant Vaught because of the latter’s real estate salesman’s license. During the Arkansas-Texas football game in October, 1971, water started seeping into the house. The Vaughts have now corrected the problem through the expenditure of $5,286 over a period of about three years. There is proof in the record that the fair market value of the house in 1971, without the water seepage problem would have been only $15,900 and that with the water seepage problem the value would not have exceeded the $12,000 outstanding mortgage. Appellant Vaught’s testimony as to what he observed upon his first visit is as follows:

“Q. All right, did you ever ask Mr. Harris in regard to any kind of water problems? Did you ever inquire in that regard?
A. The first time I looked at the house, Mr. Harris and I went up there by ourselves. We walked through the house, I believe one of Mr. Satterfield’s children was at home that day and we went in the house, walked through the rooms and briefly looked at it, walked out the back door, the kitchen or dining door onto the little porch in the back and at that time we walked up the steps in the area where this patio was, along in that area and I believe Mr. Harris was standing down below the steps and I was maybe standing on the steps at the time and I asked Mr. Harris, I said, do you know if there is any water problems here and Mr. Harris said he did not.
Q. And that was the only conversation that took place?
A. And I said well, looked like for some reason they’ve painted and fixed this up, awful nice here.
Q. You talking about that swale?
A. The swale had been painted green, the wall had been painted green and the swale had been painted green so you couldn’t tell whether there was anything new or old or what there. It had just recently been painted and I didn’t know whether the swale had been there ten years or two months or the wall either one.
Q. So then that was the only conversation you ever had on it?
A. Right.”

To support their position the appellants rely upon Weikel v. Sterns, 142 Ky. 513, 134 S.W. 908 (1911), and Lingsch v. Savage, 213 Cal. App. 2d 729, 29 Cal. Rptr. 201, 8 A.L.R. 3rd 537 (1963). In the Kentucky case the appellant had erected a residence over a cesspool into which he was still pumping sewage. The court in that case had no trouble in finding a duty of disclosure and that the vendor’s silence on the subject amounted to fraud.

In the California case the allegation was that the vendors knew the building was illegal and had been placed for condemnation by the city; that the appellants had no knowledge thereof; and that in purchasing the property, they did so in justifiable reliance upon the vendor’s nondisclosure and in the belief that said property was legally tenantable. In holding that the complaint stated a cause of action as against a demurrer, the Court stated:

“It is now settled in California that where the seller knows of facts materially affecting the value ;.or desirability of the property which are known or accessible only to him and also knows that such facts are not known to, or within the reach of the diligent attention and observation of the buyer, the seller is under a duty to disclose them to the buyer. . . .”

Under the facts in the record before us, appellants cannot bring themselves within the results of either the Kentucky or California ruling. The record shows from appellant Vaught’s own testimony that his observance of the premises on his first visit was such as to cause him to inquire of Paul Harris as to his knowledge of a water problem. When Paul Harris truthfully answered that he did not know, appellant Vaught dropped the subject and made no further inquiry. As we read the authorities upon which appellants rely, the burden of proof to show the fraud alleged required not only a showing that appellants did not know the facts but also that the ascertainment of the undisclosed fact was not within the reach of their diligent attention or observance. Since appellants failed to show that the facts were not within the reach of their diligent attention or observation, it follows that the trial court correctly directed a verdict against them.

Affirmed.

We agree: Harris, C.J., and Holt and Roy, JJ.


author: Frank Holt, Justice.

text:
    Howard L. THOMAS and GULPHA CONSTRUCTORS, Inc. v. Phillip G. KELLETT
    76-107
    542 S.W. 2d 501
    Opinion delivered November 1, 1976

      Laser, Sharp, Haley, Totfng & Boswell, P.A., for appellants.

      Dean A. Garrett, for appellees.
   Frank Holt, Justice.

This appeal results from a jury verdict awarding S3,500 damages to appellee in a suit arising out of an automobile accident. Appellants contend that the court erred in giving the following instruction to which the appellants specifically objected that there was no substantial evidence from which the jury could find that the condition of the pickup truck driven by appellant Thomas was the proximate cause of the accident:

There was in force in the State of Arkansas at the time of the occurrence, a statute which provided: AMI—908 No person shall drive and no owner shall cause or knowingly permit to be driven or moved on any highway a vehicle which is in such an unsafe condition as to endanger any person.
A violation of this statute, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.

The accident occurred after appellant Thomas, who was driving a pickup truck belonging to his employer, appellant Gulpha Constructors, Inc., passed appellee’s tractor-trailer rig. Upon successfully overtaking appellee, Thomas moved back into the right lane, whereupon he heard a “rattling and clanging” noise coming from the truck. Thomas began slowing down, gave a left hand signal and came to a stop in the road to avoid oncoming traffic preparatory to pulling off on a side road to his left in order to determine the source of the noise. The pickup truck had a history of mechanical trouble with the transmission and universal joint and repair efforts had not corrected the condition. He was instructed to stop the truck and check it whenever anything “acted up.” There was also evidence of a “possibility of the vehicle just stopping or locking up.” When the appellee observed that the truck had stopped in front of him, he was unable to stop and had to leave the road where he lost control of his tractor-trailer. The trailer broke loose and overturned injuring the appellee. Immediately following the accident, Thomas “pulled off over to the [right] side of the road” and “went back there to see if [appellee Kellett] was hurt.” Afterwards, Thomas drove the pickup approximately fifty miles before it became necessary to repair the universal joint.

Appellants argue that the mechanical condition of the truck at the time of the accident was not the proximate cause of the accident. The appellee responds that in “considering whether the defective mechanical condition of the pickup truck was the proximate cause of this accident,” appellant Thomas the driver of the pickup truck, “had no reason to stop and make a left hand turn, after passing [Kellett’s] large tractor trailer rig, except for the emergency situation created by the mechanical difficulties” of the pickup truck. Appellee’s reliance upon Bryant v. Thomas, 230 Ark. 999, 328 S.W. 2d 83 (1959), is misplaced. There the engine malfunction of Bryant’s vehicle was the cause of it coming to a “standstill” in the highway. Here, appellant Thomas’ vehicle was not forced to come to a stop on the highway due to a mechanical difficulty. The driver himself stopped the vehicle because he heard a noise in it. As indicated, following the accident, he drove it off to the right side of the road and thereafter approximately fifty miles before it became necessary to make repairs.

When we view the evidence most favorable to the appellee, we hold that the mechanical condition of the vehicle was not a proximate cause of the accident. See West v. Wall, 191 Ark. 856, 88 S.W. 2d 63 (1935); Ben M. Hogan & Co. v. Krug, 234 Ark. 280, 351 S.W. 2d 451 (1961); and Lytal v. Crank, 240 Ark. 433, 399 S.W. 2d 670 (1966). Here, the question of proximate cause involved only the degree of care being used by appellant Thomas and appellee Keilett in the operation of their respective vehicles. Consequently, as asserted by appellants, it was error to give the instruction.

Reversed and remanded.

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


text:
    Janice Faye KLINE v. Roy Lee KLINE
    76-113
    542 S.W. 2d 499
    Opinion delivered November 1, 1976

      Michael L. Ellig, for appellant.

      William M. Stocks, for appellee.
   Frank Holt, Justice.

This appeal is from a proceeding under the Uniform Reciprocal Enforcement of Support Act (URESA), Ark. Stat. Ann. § 34-2401, et seq. (Supp. 1975) in which appellant sought enforcement of a child support order which was rendered in a Tennessee divorce action between herself and appellee. Here, by the provisions of the Act, Tennessee is the initiating state and Arkansas the responding state. Upon trial of the cause, the Arkansas chancellor considered that a change in circumstances had affected appellee’s ability to pay. Therefore, the court reduced his payment from $400 a month to $25 a week for the support and maintenance of his two minor children. The payments, however, were made contingent upon the appellant making their children available to appellee for visitation both in Tennessee and at appellee’s home in Fort Smith, Arkansas. From that portion of the order making the support payments contingent on visitation rights, appellant brings this appeal. Appellant contends that the Arkansas trial court had no jurisdiction to adjudicate the visitation rights of the parties in a proceeding under the URESA and, therefore, it was error to make the child support payments contingent upon visitation rights. We must agree.

§ 34-2401, the first section of the Act, states: “The purposes of this Act are to improve and extend by reciprocal legislation the enforcement of duties of support.” § 34-2423 provides:

If the action is based on a support order issued by another court, a certified copy of the order shall be received as evidence of the duty to support, subject only to any defenses available to an obligor [appellee] with respect to paternity as provided in § 27 hereof or to a defendant in an action or a proceeding to enforce a foreign money judgment.

Further, § 34-2432 states: “Participation in any proceeding under this Act does not confer jurisdiction upon any court over any of the parties thereto in any other proceeding. ” Obviously, the Act is intended to facilitate enforcement of support orders rendered in our sister states by way of an exparte proceeding whereby a duly rendered valid support decree is prima facie evidence of the obligor’s duty. The URESA is a uniform law, remedial in nature and purpose, and should be liberally construed in order to effectuate its purpose to accomplish and enforce the duty of a parent to support his children. State of Illinois v. Sterling, 80 N.W. 2d 13 (Minn. 1956). There it was also said that parental visitation rights are governed by the laws of that state, Tennessee here, where the divorce was secured. Consequently, the visitation rights or the enforcement of them should be addressed to the Tennessee court where the appellant mother and children continue to reside following the divorce action there. That is the court which has continuing jurisdiction over the parties as to visitation rights.

Reversed.

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