author: Frank Holt, Justice.

text:
    F. L. MILES et al v. F. A. TEAGUE et ux
    5-5752
    476 S.W. 2d 245
    Opinion delivered February 21, 1972

      Putman, Davis if Bassett, for appellants.

      Croxton if Boyer, for appellees.
   Frank Holt, Justice.

These parties were before us in Miles v. Teague, 246 Ark. 1288, 441 S. W. 2d 799 (1969). That was a foreclosure action on a second mortgage. There we affirmed the chancellor’s finding that payments made by the appellants to appellees were first to be applied against the agreed $50,000 down payment on the purchase price of a farm and certain personal property and that, since the down payment was not fully paid, the second mortgage was in arrears and subject to foreclosure. The judgment for the principal amount on the second mortgage securing appellants’ note was affirmed. During the pendency of the appeal from that decree the present action was instituted by the appellees to collect $22,740.24 as the alleged balance due on the $50,000 down payment. It was also alleged that appellants had agreed to pay all insurance, taxes, and other expenses pertaining to the operation of the farm. The appellants responded and contended that payment had been made and that the present action is barred by res judicata. The trial court held that the down payment issue was never litigated; that the chancellor expressly reserved, in the second mortgage litigation, the subsequent right of the appellees to litigate the down payment issue; and that a balance of $18,386.36 on the agreed down payment was owed to the appellees by the appellants.

We first consider appellants’ contention that the chancellor erred in holding that the language in the earlier cause (second mortgage foreclosure action) “was in effect a reservation of any decision on the down payment” issue. Therefore, appellants assert that appellees’ present cause of action is barred by res judicata and the rule against splitting a cause of action. In other words, it is appellants’ position that the language in the chancellor’s opinion in the first action does not constitute a sufficient reservation of rights so as to leave the down payment issue open to future litigation. We find no merit in this contention. The pertinent part of the earlier opinion reads:

While it is apparent that monies are due plaintiffs from the defendants in connection with the down payment, the defendants agreed to make upon the lands and property in addition to the debt evidenced by the note and mortgage, relief was not sought for this item in the pleadings. That the plaintiffs are not required to deliver the deed to the above lands to the defendants in the event of the payment of the judgment herein provided for, until the balance of the agreed down payment is paid in full. It is further ordered that if the parties are unable to agree upon the amount of said unpaid down payment due plaintiffs, plaintiffs are hereby granted permission to file additional pleadings herein seeking a determination and decree for said additional monies due them upon the sale price of the property herein involved.

Although the original pleadings did not ask relief on the down payment issue, the appellees therein did file a motion during the trial to amend their pleadings “to conform with the proof and render judgment on the balance of the down payment and the open account in the amount of $22,740.24.” This was not granted and we affirmed on cross-appeal. Undoubtedly, by not approving this motion it was the intention of the chancellor in that earlier cause to expressly reserve for future litigation the down payment issue. It is well settled that an express reservation of rights as to litigation on a certain item preserves that subject for future adjudication. Loden v. Hall, 127 Ark. 573, 193 S. W. 98 (1917); Livingston v. New England Mortgage Security Co., 77 Ark. 379, 91 S. W. 752 (1906); Randolph v. Nichol, 74 Ark. 93, 84 S. W. 1037 (1905); Hardin v. Hardin, 129 N. W. 108 (S. D. 1910); 50 C. J. S. Judgments § 641. In the case at bar we are of the view that it was the intention of the chancellor to restrict the first case to the second mortgage issue and reserve to the appellees their right of future litigation on the down payment balance in the event the parties were unable to resolve their differences on this issue by agreement. Therefore, since the present action is not barred, affirmative defenses of res judicata and splitting a cause of action are inapplicable.

The appellants next assert for reversal that the trial court erred in allowing certain charges or debits against the appellants for other than expenses directly necessary in earning farm income. In a pretrial hearing the chancellor limited the proof in the present action to the balance owed on the agreed $50,000 down payment which was an unsecured open account. However, the chancellor observed that he would consider evidence as to open account expenses paid by appellees relating to the operation of the farm for the purpose of offsetting those credits allowed the appellants. The appellants assert that the court incorrectly included as offsetting expenses certain items relating to a boat (a personalty item included in appellants’ purchase); also, items appellants characterize as nonfarm-expenses; and, further, improper credit relating to two checks. As to the two checks, the $7,000 check was made an exhibit; the $3,575 check was not. Mr. Teague merely identified his endorsement and receipt of both checks. The burden of proof with respect to payments as well as proper credit is upon the debtor. Under the record here, we cannot say that credit for these checks was not included in the $32,000 cash credit, or that the chancellor erred in failing to give credit.

The appellants demurred to the evidence and did not testify. It appears that the appellees’ testimony is virtually uncontradicted that appellants had full knowledge and agreed that items of credits and debtis were accurate and proper. On the first appeal we recognized that appellants had paid $32,000 in cash on the agreed $50,000 down payment. In the case at bar the chancellor found that $18,386.36 is the balance now due on the down payment and agreed expenses. Upon a review of the testimony and exhibits, we cannot say that the chancellor’s finding is against the preponderance of the evidence.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Russell FIELDS v. Chris SUGAR and Gene Sugar
    5-5774
    476 S.W. 2d 814
    Opinion delivered February 21, 1972
    [Rehearing denied March 27, 1972.]

      Jeff Duty, for appellant.

      Crouch, Blair, Cypert & Waters, for appellees.
   Frank Holt, Justice.

The appellees brought this action against the appellant for breach of warranty of title to cattle. The court, sitting as a jury, found that the appellant had sold the livestock to the appellees with warranty of title and delivered them free of any encumbrances; that appellant had breached his warranty of title inasmuch as, following the sale, it became necessary for the appellees to pay a local bank for its lien against the cattle to secure an indebtedness of $3,031 which was unknown to the appellees at the time of the sale. Based upon these findings the court rendered judgment for $3,347.40 which included the lien, interest, and certain expenses incurred by the appellees in defending their claim against the security interest of the lienor bank. For reversal of this judgment the appellant asserts that the evidence is insubstantial and contrary to the law “in that the appellant was not the seller of the cattle.” We cannot agree with this contention.

It is the province of the jury or the trial court, sitting as a jury, to determine the preponderance of the evidence. However, on appeal we apply the substantial evidence rule in testing the sufficiency of the evidence to support a finding and verdict and, in doing so, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee in support of the verdict. Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S. W. 2d 822 (1968). Nor do we disturb a finding of fact merely because the testimony is in conflict. On appeal it must appear to us that “there is no reasonable probability that the incident occurred as found by the [jury] trial court sitting as a jury.” Fanning v. Hembree Oil Co., supra. See, also, Lumbermens Mut. Ins. Co. v. Cooper, 245 Ark. 81, 431 S. W. 2d 256 (1968).

The appellees adduced evidence that they received a handbill, an exhibit to their testimony, advertising that on a certain date a public auction would be conducted at appellant’s farm. This advertised sale reflected that the appellant was the owner of livestock' (cattle and hogs). The appellees appeared at the sale and were advised that the public sale was not being held inasmuch as there was insufficient attendance. The appellees expressed an interest in purchasing the cattle. The appellant advised appellees that he would first have to release the auctioneer. Following this, appellant offered to sell the cattle for $115 per head and appellees countered with an offer of $100 per head for 31 heifers. When they could not agree, appellant said that he would have to consult with his son who “was in on it.” Appellant then talked to his son who was on the premises and then advised appellees that $110 was the least price they could accept. Appellees refused and as they were leaving, appellant’s son stopped them and accepted their $100 per head offer. The appellees transported the cattle in three loads with appellant, his son, the auctioneer, and others assisting in the loading. During the loading appellees gave to appellant their $3,100 check in payment of the cattle. Appellant first asked that the check be made payable to him and when he was asked how to spell his name, he suggested they leave the name blank and they did. One of appellant’s witnesses testified that he was present and the auctioneer didn’t want appellees to know he owned the cattle since appellant was the advertised owner.

Appellant’s version of the transaction is that the cattle were owned by the auctioneer to whom he immediately delivered the check. The check was endorsed and cashed by the auctioneer and appellant received none of the proceeds. Appellant had known the auctioneer for many years. Appellant never told the appellees that he owned the cattle. He denied that he ever told the appellees that he and his son had any interest in the livestock and asserted that the sale was actually made by the auctioneer-owner and not by him. It appears that at the time of the trial the auctioneer was unavailable as a witness. Appellant agreed that he had priced the cattle to the appellees, at the auctioneer’s insistence; also, that the auction sale advertised that he was the owner. Appellant’s son and another witness testified that the appellees and the auctioneer, as the owner, agreed upon the sale price.

As previously indicated, any conflicting versions as to the evidentiary facts were matters for the factfinder to reconcile. The evidence is undisputed that the livestock also advertised appellant as the owner and that the sale would be held on his farm; that appellees attended the sale as a result of the advertisement; that appellant participated in negotiating a sale price with the appellees and never advised them he was not the owner as advertised; that he assisted in loading the cattle and then accepted from the appellees their blank check in payment of the livestock. Upon our review of the evidence, it must be said there is substantial evidence to support the finding that there was a warranty of a good and unencumbered title by the appellant, as the seller, which was breached to the detriment of the appellees. See Ark. Stat. Ann. § 85-2312 (Add. 1961).

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    GENERAL SECURITIES CORPORATION v. Lavon V. WATSON et al
    5-5754
    477 S.W. 2d 461
    Opinion delivered February 28, 1972
    [Rehearing denied April 10, 1972.]

      Pope, Pratt, Shamburger, Buffalo ir Ross, for appellant.

      Jones ér Segers, for appellees.
   Carleton Harris, Chief Justice.

This litigation results from the inability of Lavon V. Watson and Dr. Phil Deal, appellees herein, of Washington County, to agree with appellant, General Security Corporation, on the “fair value” of stock owned by appellees in Arkansas Factors, Inc. and First Financial Corporation, these two companies being merged with appellant, the surviving corporation. The plan of merger provided for 8 shares of Arkansas Factors for 1 share of General Security. Watson owned 10,000 shares of Arkansas Factors, Inc. and 10,000 shares of First Financial Corporation. Deal owned 5,606 shares of Arkansas Factors, Inc. and 6,000 shares of First Financial Corporation. Watson testified that this meant that he would have received 55 cents per share on Arkansas Factors and 22% cents per share on First Financial. Watson and Deal were not willing to acept this amount and, as dissenting shareholders, followed the provisions of Ark. Stat. Ann. § 64-707 (Repl. 1966) and instituted suit in the Pulaski County Circuit Court seeking a determination of the fair value of the shares held by them. Evidence was presented by both sides, and at tbe conclusion thereof, the jury, in answer to interrogatories propounded to it, assessed a value of $1.00 per share on Arkansas Factors and $.75 a share on the First Financial stock, judgment accordingly being entered for Watson in the amount of $17,500, and Mrs. Deal in the amount of $10,106. From the judgment so entered, appellant brings this appeal. For reversal, it is first asserted that the court erred in admitting into evidence appellees’ exhibits number 6, 7, and 9, and it is also urged that there was no competent evidence on which to base the stock value reached by the jury. We proceed to a discussion of these points in the order listed.

Exhibit number 6 was a prospectus issued by Arkansas Factors on August 24, 1964, in connection with a public offering of stock at a price of $1.00 per share. Exhibit number 7 was a prospectus issued by Arkansas Factors on August 8, 1965, in connection with a public offering of stock at a price, of $1.50 per share. Exhibit number 8 was a prospectus issued by First Financial Corporation on November 28, 1967, in connection with a public offering of stock at a price of $.75 per share. Appellant argues that the court erred in permitting these prospectuses to be offered in evidence because they were too remote from the date of the merger (March 24, 1970), to have any bearing on the fair value of the stock at that time. The provisions of § 64-707 have not heretofore been passed upon by this court, and we have no case authority on what constitutes “fair value”; however in Victor Broadcasting Co., Inc. v. Mahurin, 236 Ark. 196, 365 S. W. 2d 265, we did say that there is no set formula to determine the “fair cash value” of stock. A study of cases from other jurisdictions reflects that there is no set standard, or formula, for determining fair value. In the Maryland case of American General Corporation v. Camp, 190 A. 225, the Court of Appeals stated:

“The problem of finding the fair value of stock is a special problem in every particular instance. Since the dissentient will not unite with the majority, the value of his stock should not be affected by a corporate change in which he refused to participate, whether the result be appreciation or depreciation, and this the statute recognizes and eliminates but otherwise affords no express criterion of fair value. * * * The owner of shares of stock in a corporation whose legal existence is at an end would be entitled to receive the aliquot proportion which the number of shares held would be entitled to receive in the distribution of the net amount of the corporate funds in which his particular kind of stock would be entitled to share. Thus, by an ascertainment of all the assets and liabilities of the corporation, the intrinsic value of the stock, and not merely its market value, when traded in by the public, would be determined. If the dissenting owner received this amount, so ascertained, he would receive the fair value of his stock.

The general problem therefore, would be, in every instance of an appraisal pursuant to the statute, to ascertain the fair value. Every appraisal would as a rule be a particular problem which would vary with the kind of corporation, the nature, extent, and methods of its operations, the state of its assets, the form and incidence of its liabilities, and with many other circumstances too numerous to admit of a general classification.”

In the Missouri case of Phelps v. Watson-Stillman Company, 293 S. W. 2d 429, the Supreme Court of Missouri stated in its discussion of fair value:

“As previously noted, there is no simple mathematical formula and" each case presents its particular problem, but in general some of the factors to be considered and weighted are asset value, earnings, dividends, management and ‘every relevant fact and circumstance which enters into the value of the corporate property and which reflects itself in the worth of corporate stock * * *.’ ”

The holdings from other jurisdictions are in the same vein. We cannot agree that the court committed error in permitting these exhibits to be offered, for, in our view, the selling price of the stock was simply another circumstance which entered into the overall value of the property. It might be mentioned that, while appellant objected to the introduction of this evidence, no objection was made to an instruction given at the conclusion of the testimony by the court which told the jury, inter alia, that the selling price of the stocks on previous sales could be considered. We find no merit in appellant’s first point.

For its second point, appellant contends that there was no substantial evidence to support the jury verdict. In the case before us, Mr. James David Holiday, a stock broker with A. G. Edwards and Sons, and who had been engaged in the stock brokerage business for the past seven years, testified on behalf of appellees. He stated that he frequently evaluated stock, and had caused to be made an evaluation of the shares of stock of Arkansas Factors and First Financial Corporation for the purpose of setting a fair value as of March 24, 1970, when those companies were merged into General Security Corporation. Mr. Holiday testified that a numer of different factors are taken into consideration, viz, the earning capacity of the corporation. . . the investment value of the particular stock. . . the dividends that have been paid. . . the regularity of the dividends. . . the selling price of the stock on previous sales. . . the selling price of similar stocks. . . the apparent future and good will of the corporation. He said that these corporations were money lending corporations and that the demand for money for the past three or four years had been very good:

“As a matter of fact, interest rates for the past couple or three years at one point they reached the highest since the Civil War. So, the opportunity for having earnings during the past or during the course of this — both of these corporations’ existence should have been at its peak because of the demand for money. There’s always demand for money.”

With regard to Arkansas Factors, the witness stated that that company had been extremely liberal in paying dividends:

“In one year they earned approximately $15,400 and they paid almost all of that with the exception of about a hundred dollars in dividends. As a matter of fact, one year they paid more than they actually earned in dividends. So as I say they are extremely liberal. This is a definite plus factor as far as figuring the fair value of the company. Their willingness to pay dividends. As far as the selling price of the stock on previous sales from the times that I have seen the stocks — Arkansas Factors, for example, is traded as low as seventy-five cents a share and as high as a dollar and a half a share. As far as First Financial is concerned, it’s traded as low as fifty cents a share and it’s traded as high as a dollar as far as.I know.”

The witness also stated that he had taken into consideration that Arkansas Factors had lost money for 1968, 1969, and the first three months of 1970, and that First Financial had lost money in 1968 but had shown a profit in 1969 and a profit through March 1970. Holiday said that though these losses were considered, “this was not as big a factor in my estimation as the assets of the corporation”. Taking all factors into consideration, the witness was of the opinion that the value of Arkansas Factors stock on March 23, 1970, was at least $1.00 per share, and that the value of First Financial was at least $.75 per share. It is true that Robert W. Bass, a stock broker with the firm of Dabbs Sullivan-Trulock & Co., and Tom Donovan, Treasurer of General Security Corporation, disagreed with the findings of Holiday, but we are only concerned with whether there was competent evidence offered on behalf of appellees that would support the judgment rendered. We are of the opinion that Holiday was a qualified witness and it appears that he considered facts and circumstances in reaching his conclusions that we deem to be relevant for a proper determination. The question of which witnesses to believe was solely a jury matter. It follows from what has been said that we find no reversible error.

      After the suit was commenced, Dr. Deal died as the result of an airplane accident and the cause of action as to him was revived in the name of his executrix, Mrs. Deal.

      la The plan provided for 20 shares of First Financial for one share of General Security.

      Statutes from various states use the term “value”, “fair value”, “fair cash value”, “market value”, and “full market value”, all referring to "fair value”.

      Watson paid $1.00 per share for Arkansas Factors and $.50 per share for First Financial. The record does not reflect what Deal paid.

      According to the witness, Edwards & Sons is a “fully integrated brokerage firm, member of the New York Stock Exchange, American,, about five or six lesser exchanges. We’re also a commodity leader, member of the Chicago Board of Trade and the Chicago Mercantile Exchange and five or six others. A full line”.

      The witness said that book value was only of significance when the company is liquidating, i. e., going into bankruptcy, and in this particular instance he gave no consideration to book value.

      Mr. Watson had testified that among its assets, Arkansas Factors owned 102 lots and 431 acres at Greers Ferry in Cleburne County, and he was of the opinion that the value of these lots had increased considerably since their purchase.


text:
    Mary JEFFERY v. JACKSON COUNTY COURT JUVENILE DIVISION
    5-5762
    476 S.W. 2d 805
    Opinion delivered February 28, 1972
    Legal Aid Bureau of Jackson County; By: Monroe L. Bethea, for appellant.

      Ray Thornton, Attorney General, Milton Lueken, Asst. Atty Gen., for appellee.
   Carleton Harris, Chief Justice.

This appeal results from the refusal of the Jackson County Chancery Court to issue a Write of Prohibition to the Jackson County Court. The facts giving rise to this litigation are as follows: On January 6, 1971, a complaint for divorce was filed in the Jackson County Chancery Court by Mary Jeffery, appellant herein, against Kelly Jeffery, and on April 15, 1971, a final decree of divorce was entered and Mrs. Jeffery was granted custody of the two minor children of the marriage. The record next reflects that on April 8, 1971, a petition was filed in the Jackson County Court, Juvenile Division, by one Lloyd Chambliss asking that court to divest custody of the children from Mary Jeffery and place said custody in the Family and Children’s Services of the State Welfare Department. Subsequently appellant filed a petition in the chancery court, setting out that she had filed a motion in the county court, calling attention to the divorce decree and custody order entered by the chancellor, and had asked the county court to dismiss the petition of Chambliss; that the county court had refused to do so. Appellant requested the chancery court to issue a writ of prohibition prohibiting the Jackson County Court from proceeding further in the matter. On hearing, the court denied and dismissed appellant’s petition, and from such order (decree) comes this appeal. For reversal, it is simply argued that the court erred in failing to grant the requested writ.

Appellant’s argument is predicated on the proposition that the chancery court, in granting the divorce and awarding custody of the children to the mother, acquired exclusive jurisdiction over the subject of custody of the children and that all proceedings relating to their custody were under control of the chancery court, that court issuing the original decree. There is no point in discussing appellant’s argument since the chancery court has no jurisdiction to issue a writ of prohibition.

In Nethercutt v. Pulaski Co. Spl. Sch. Dist., 248 Ark. 143, 450 S. W. 2d 777, it was held that Ark. Stat. Ann. § 33-101 (Repl. 1962) which provides that the' chancery court shall have power to hear and determine petitions for writ of mandamus and prohibition, was unconstitutional insofar as it related to the issuance of a writ of mandamus. This holding was based on the fact that Article 7, §§ 11 and 15 of our Constitution provides that “The circuit court shall have jurisdiction in all dvil and criminal cases the exclusive jurisdiction of which may not be vested in some other court provided by this Constitution”. It was then pointed out that the writ of mandamus was a common law writ and a remedy at law which was unknown to equity procedure. The same is true of the writ of prohibition, and the reasoning set out in Nethercutt, though that case dealt with mandamus, applies with equal force to prohibition. In State v. Kuhlman, 94 N. W. 2d 373, the Nebraska Supreme Court referred to an earlier holding, stating: “Prohibition is derived from the common law and is essentially and wholly a proceeding at law. Courts of equity do not issue writs of prohibition.” It follows from what has been said that the chancery court did not err in refusing to grant the writ, and in dismissing appellant’s petition.

However, before proceeding further in the Juvenile Court, we suggest that counsel for the parties read the case of Cude v. State, 237 Ark. 927, 377 S. W. 2d 816. There, the conflict between Ark. Stat. Ann. § 45-221 (Repl. 1964) and Ark. Stat. Ann. § 57-604 subsection a (Repl. 1971) is fully discussed. The first mentioned section, inter alia, authorizes the juvenile court to make an order appointing a guardian for a dependent or neglected child, and the last mentioned section deals with the exclusive authority of the probate court over all matters of guardianship. The language in Cude is clear and unambiguous.

Finding no error in the order (decree), the judgment of the Jackson County Chancery Court is affirmed.

      It is recognized that the date of April 8, being prior to the date of the divorce,' is somewhat confusing, but nonetheless the recorcTso reflects.

      In 73 C. J. S. Prohibition § 2 p. 10, it is stated that “Prohibition is a remedy of ancient origin, and has been said to be as old as the common law itself”.

        Massman Construction Co. v. Nebraska Workmen's Compensation Court, 141 Neb. 270, 3 N. W. 2d 639, 640.


text:
    Marvin Jasper LAIRD v. STATE of Arkansas
    5657
    476 S.W. 2d 811
    Opinion delivered February 28, 1972

      Kenneth Coffelt, for appellant.

      Ray Thornton, Attorney General, Gene O’Daniel, Asst. A tty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, Marvin Jasper Laird, was charged by information with two separate and distinct felonies, the first, Possessing Stolen Property, referring to a 1964 GMC truck belonging to Glen Crumblis, and a second charge, Possessing Stolen Property, referring to a Massey-Ferguson tractor belonging to Hubert Pickett. Counsel for appellant, just before the trial commenced, announced that he was ready to go on trial on either charge, but he strenuously objected to being tried on both charges at the same time. The court overruled the objection and the case proceeded to trial, the jury finding Laird guilty on each charge, and fixing his sentence at one year’s confinement on each charge in the Department of Corrections. The court, in sentencing the defendant, ordered that the sentences be served concurrently. From the judgment so entered, appellant brings this appeal. For reversal, it is first asserted that the trial court erred in requiring appellant to go to trial on both of these charges at the same time over his objections, and further, certain instructions are complained about which will also be discussed.

We agree that the court erred in holding that the appellant should be tried on both charges at the same time over his objections. Originally, this court held that to try two charges together was error, even though the defendant consented; McClellan v. The State, 32 Ark. 609. In The State v. Jourdan, 32 Ark. 203, an opinion by Chief Justice English, it was pointed out that two larcenies were charged in the same indictment, but that this could not be done, Section 1783 of Gantt’s Digest being cited. The wording of this statute is identical with our present statute, Ark. Stat. Ann. § 43-1009 (Repl. 1964), which provides:

“An indictment, except in cases mentioned in the next section, must charge but one offense, but, if it may have been committed in different modes, and by different means, the indictment may allege the modes and means in the alternative.”

The “next section” referred to in the opinion (Section 1784 of Gantt’s Digest) lists various offenses which may be charged in one indictment but several charges of larceny are not permitted. Likewise, in our present statute, Ark. Stat. Ann. § 43-1010 (Repl. 1964), a number of offenses are listed which may be included in one indict-. ment, but again there is no authorization for several charges of that offense in the same indictment.

In cases subsequent to McClellan and Jourdan, this court held that several charges could be consolidated if the defendant did not object. Silvie v. State, 117 Ark. 108, 173 S. W. 857; Setzer v. State, 110 Ark. 226, 161 S. W. 190.

Also, in the latter case, it was pointed out that there are some exceptions to the prohibition against offering evidence of more than one crime where, for instance, the evidence is offered to show pursuit of a common purpose and a conspiracy; of course, where several criminal acts are committed as part of a single offense, such acts may be included in the indictment or information. In Ragar v. State, 180 Ark. 1131, 24 S. W. 2d 334, Ragar was charged with three counts of assault with intent to kill, the charge alleging that he assaulted three different persons by firing a shotgun through a closed door, the blast having injured three people but only one conviction was sought. As previously pointed out, § 43-1010 permits the joinder of certain offenses enumerated in that section.

The present charges are based upon Ark. Stat. Ann. § 41-3938 (Repl. 1964), this statute being enacted in 1955, and dealing with the possession of stolen goods. As far as that particular offense is concerned, no authority is given in this, or any other statute, to consolidate charges filed in more than one information, or to charge more than one separate offense in an information. Of course, the charge (of the possession of the truck and the tractor) would not constitute error within itself if only one offense were being charged; rather the error occurred when Laird was tried for two offenses, and two penalties were given.

We also agree that error was committed by the failure to give instructions that were tendered. The court’s instruction No. 3 referred to circumstantial evidence, and reads as follows:

“A fact in dispute may be proved by circumstantial evidence as well as by direct evidence. A fact is established by direct evidence when, for example, it is proved by witnesses who testify to what they say, heard, or experienced. A fact is established by circumstantial evidence when its existence can reasonably be inferred from other facts proved in the case. Any fact in the case, and any element of the crimes charged, may be proved by either kind or both kinds of evidence.”

This instruction was correct, but it did not go as far as appellant desired. He offered two instructions which were proper instructions, explaining to the jury that the circumstances must be consistent with the guilt of the defendant and further that such circumstances must be inconsistent with any reasonable conclusion other than the guilt of the defendant. One of these should have been given.

Complaint is also made that the court’s instruction on reasonable doubt was erroneous. Pertinent portions read as follows:

“A reasonable doubt is defined to you as being a real, solid and substantial doubt. The kind of doubt that would cause .you to halt or hesitate in making a decision affecting some important issue in your own life. It is not necessary that you actually know the defendant to be guilty, because to actually know he is guilty would involve your having actually been involved in the alleged crimes. Nor is reasonable doubt a possible or imaginary doubt, because everything relating to human affairs is susceptible of some imaginary doubt.”

We probably would not reverse solely because of the language “solid and substantial doubt”. Though we have have no hard and fast rule as to language to be employed in this instruction, the use, particularly of the word “solid” is unusual, and might even require an explanation itself. Certainly, that portion of the instruction which states “it is not necessary that you know the defendant to be guilty” should not be given, for the jury might take it to mean if they just “thought” he was guilty, it would be sufficient; in other words, we do not think this language is proper in defining reasonable doubt. In the case of Dempsey v. State, 83 Ark. 81, 102 S. W. 704, an instruction was given which has been used, and approved, in subsequent cases. The instruction is as follows:

“Reasonable doubt is not a mere possible doubt, or imaginary doubt, because everything relating to human affairs and depending upon mortal evidence is open to some possible or imaginary doubt; but it is such a doubt as arises from such a candid and impartial consideration of all the evidence in the case as would cause a reasonable and prudent man to pause and hesitate in the graver transactions of life; and a juror is satisfied beyond doubt if from a candid consideration of all the evidence he has an abiding conviction of the truth of the charge.”

In accordance with what has been said, the judgment is reversed, and the cause remanded.

It is so ordered.

      A better word would have been “hypothesis”.


author: George Rose Smith, Justice. Conley Byrd, Justice, dissenting.

text:
    C. G. DAVIS et al v. Jay JOHNSTON et al
    5-5751
    479 S.W. 2d 525
    Opinion delivered February 28, 1972

      McKay, Chandler & Choate, for appellants.

      Keith, Clegg ir Eckert, for appellees.
   George Rose Smith, Justice.

This appeal raises a question of first impression in Arkansas: In a suit to determine the true ownership of the leasehold interest in lands apparently containing oil and gas, can the chancellor appoint a receiver pendente lite and authorize him to contract for the drilling of an oil well upon the property, to keep it from being drained by an existing well upon neighboring property? In the trial court the chancellor appointed such a receiver and authorized it to proceed in the manner indicated.

The facts may be stated in a few sentences. The appellants, claiming to own the entire oil-and-gas leasehold interest in the 80 acres in controversy, brought this suit to cancel rival leases held by the appellees. In response to that complaint the appellees denied the appellants’ claim of ownership and asserted title in themselves to the leasehold interest in question.

The appellees further asserted that the 80-acre tract was being drained of its oil and gas by an oil well owned by the appellants upon adjoining land. The chancellor, to end that drainage, appointed KWB Oil Property Management, Inc., as receiver and authorized it to contract for the development of the leasehold interest. The receiver recommended, and the court approved, a contract by which Jay Johnston (one of the appellees) and Weiser-Brown Oil Company agreed to finance the drilling of a well upon the land in return for the payment to them, from the sale of any oil and gas that might be produced, of 250%, of their drilling expenses. If the well should prove to be a dry hole, Johnston and Weiser-Brown would lose their investment.

We hold that the chancellor’s action was authorized by our statute regarding the appointment of receivers pendente lite, which reads as follows:

“In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of plaintiff or of any party whose right to or interest in the property or fund or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured, the court may appoint a receiver to take charge thereof during the pendency of the action, and may order and coerce the delivery of it to him.” Ark. Stat. Ann. § 36-112 (Repl. 1962).

In construing a statute we must make every effort to give effect to the legislature’s purpose in enacting the law. As Llewellyn put it: “If a statute is to make sense, it must be read in the light of some assumed purpose. A statute merely declaring a rule, with no purpose or objective, is nonsense.” The Common Law Tradition, p. 374 (1960).

Needless to say, the appointment of a receiver is not an end in itself. It is a step taken by the court to afford some further judicial relief to the party seeking the receivership. Here the statute itself recites the danger that is to be met by the receiver: “. . . where it is shown that the property or fund is in danger of being lost, removed, or materially injured, the court may appoint a receiver . . .” In the case at bar the property is being materially injured by the drainage of oil through the appellants’ nearby well. If the statute does not invest the court and the receiver with the power to meet that condition, the legislative purpose is not being fulfilled.

The right view has been taken elsewhere when the question has arisen. It is impossible to imagine a case more precisely in point than the decision in Hunt v. State, 48 S. W. 2d 466 (Tex. Civ. App., 1932). There, as here, the land in question was being drained by a neighboring well owned by one of the litigants. There the Texas statute cited by the court, Vernon’s Ann. Civ. St. art. 2293 (1) (1971 printing), was in all material respects a verbatim copy of our own statute, quoted above. In sustaining the trial court’s appointment of a receiver with authority to develop the property pendente lite, the court said:

While the doctrine of ownership in place obtains in this state, drainage cannot be enjoined, and the value of that ownership depends entirely upon reducing such minerals to possession by bringing them to the surface. No cause of action lies in the owner of the surface against his neighbor for draining the oil and gas from under his land. It. is obvious therefore, that the opportunity of the owner of the land to secure production therefrom is largely, if not almost entirely, dependent upon the validity of his title. And the mere fact that the title to the land is in dispute, or in litigation, as here, greatly impedes, if it does not entirely prevent, production of oil and gas on a given tract. And where wells on the adjacent lands are owned and operated by the same parties who claim the land in dispute, as was shown in this case, and are draining the lands in question, a case is presented calling for immediate relief, pending a determination of ownership of the title. Appointment of a receiver to effect such development, and to produce the oil that would otherwise drain into wells on other lands, and so be lost to the owners of the land in controversy, has been approved by the courts as proper and effectual. [Three Texas cases cited.] The fact that wells on adjoining lands were already in operation daily draining the oil and gas shown to belong to the state, from the land in question, which could not be replaced, and removing it beyond possibility of recovery, and that the only practical method of preventing such removal was by the development and production of such oil and gas under said lands without delay, constituted, we think, such imperative necessity for immediate appointment of a receiver with authority to accomplish that purpose, as sustains the action of the trial court.

A few years later the Supreme Court of Texas pointed out that even without a statute “upon proper showing, in order to prevent waste, a receiver might be appointed to drill the well and hold the proceeds of the oil to await the outcome of the title suit.” Magnolia Petroleum Co. v. Railroad Commn., 141 Tex. 96, 170 S. W. 2d 189 (1943). In Oklahoma the court reached the same result on equitable principles, without reference to any statutory authority. Marathon Oil Co. v. Western Oil & Drilling Co., 185 Okl. 53. 89 P. 2d 939 (1939). We have found no case to the contrary. Since the result reached in the foregoing decisions is manifestly just, we have no hesitancy in adopting that view.

The appellants also question the impartiality of the receiver and the advisability of paying the operators 250% of their costs to develop the well. The appellants, however, have not seen fit to abstract the testimony heard by the chancellor; so we are unable to say that he was mistaken upon issues of fact.

It is also argued that the payment to the operators involves a penalty and is usurious. If the 250% payment was necessary to induce an operator to finance a venture that might prove to be a total loss (and in the absence of an abstract of the proof we must assume that to be the situation), we do not see how it can be said that a penalty is involved. Nor is the charge usurious, for the advancement is not a loan, and the repayment of the operators’ expenses depends upon a contingency— the production of oil and gas. See Reeve v. Ladies’ Bldg. Assn., 56 Ark. 335, 19 S. W. 917, 18 L. R. A. 129 (1892).

Without reference to the merits of the case, we are impelled by this appellant’s statement of the case to remind the members of the bar of our rule requiring the appellant’s statement of the case to be short. “This statement, ordinarily not exceeding two pages in length, should be sufficient to enable the court to read the abstract with an understanding of the nature of the case, the general fact situation, and the action taken by the trial court.” Rule 9 (b). In the case at bar the appellant’s opening statement, comprising eleven printed pages, is actually longer than this opinion. While there is no penalty for an infraction of this particular rule, we do expect appellate advocates to familiarize themselves with, our rules and to observe them.

Affirmed.

Byrd, J., dissents.

Conley Byrd, Justice, dissenting.

The statute cited by the majority only authorizes the appointment of a receiver “on the application of . . . any party whose right to or interest in the property or fund or the proceeds thereof, is probable.” The appointment of the receiver so far as the record here shows was had upon the pleadings only. Not even a prima facie showing appears in the record. Thus even if the statute be held applicable, the appellees are being given an opportunity to make a profit over and above the actual cost of determining the existence of oil under the leases in question upon only an allegation of title.

Neither does the majority’s “right view” result in such great equities. If appellants should win, they will be stuck with a lien in excess of $250,000 on their oil produced from a well that they will not need to recover the oil from under the property.

For the reasons stated I respectfully dissent.


author: Lyle Brown, Justice.

text:
    Leon FLAKE et al v. ARKANSAS STATE HIGHWAY COMM’N
    5-5782
    476 S.W. 2d 801
    Opinion delivered February 28, 1972

      Thomas J. Bonner, for appellants.

      Thomas B. Keys and George O. Green, for appellees.
   Lyle Brown, Justice.

Appellants are property owners at the northeast corner of Markham and Scott Streets in Little Rock. They brought this suit to enjoin appellee commission. The property would be affected by the proposed construction of an elevated bridge ramp in Scott Street adjacent to appellants’ lands. The ramp would connect with a bridge across the Arkansas River. Appellants asked that the commission “be enjoined from commencing or proceeding with the proposed construction” until the landowners’ damages were paid or provision for payment made. The chancellor sustained the commission’s demurrer on the ground that the suit was one against the State.

First, the demurrer of course admitted the truth of the pleadings. It was alleged that the construction will cause a change in the existing street grade, eliminate appellants’ access from Scott Street, and will close Bridge Street which serves the north part of the land. There would be no partial taking of the landowners’ fee estate but they assert that their existing easements of access in and to the abutting streets would be destroyed. It is also alleged that the ramp would constitute a private nuisance as opposed to the public in general. As we interpret the complaint and the amendment thereto the landowners sought to enjoin work contemplated to be done in contrast to work already in process. The amendment to the complaint asked that the commission be enjoined “from commencement or proceeding with the proposed construction” until the landowners’ damages had been secured.

The exact question before us was decided in Arkansas State Highway Comm’n v. Partain, 192 Ark. 127, 90 S. W. 2d 968 (1936). The law there pronounced has subsequently been followed in Bryant v. Arkansas State Highway Comm’n, 233 Ark. 41, 342 S. W. 2d 415 (1961). In Partain, the commission contemplated building an overpass in proximity to Partain’s home; Partain alleged that the construction would destroy the value of his property and without compensation being offered. The chancellor enjoined the commission from proceeding with plans until an amount of money sufficient to cover the damages had been deposited in court. We affirmed.

In view of the specific allegations recited the trial court should have overruled the demurrer.

Reversed.


author: John A. Fogleman, Justice.

text:
    INDEPENDENT STAVE CO, INC., Employer v. Kenneth FULTON, Employee
    5-5809
    476 S.W. 2d 792
    Opinion delivered February 28, 1972

      Howell, Price, Howell if Barren, for appellant.
    /. H. Cottrell and Thorp Thomas, for appellee.
   John A. Fogleman, Justice.

Appellee suffered an injury compensable under the Workmen’s Compensation Act in September 1965, while employed as a tumbler operator by Arkansas Die Cast. After intervertebral disc surgery by Dr. Robert Watson for this injury, he was awarded compensation for a 15% permanent partial disability of the body as a whole. He was employed by appellant in 1969 and claimed that, on October 17, 1970, he suffered a new injury to the back which arose out of and in the course of his employment. He again underwent surgery by Dr. Watson. This appeal is from a judgment sustaining an award of Workmen’s Compensation for an additional 10% permanent partial disability of the body as a whole and 15% to the body as a whole for loss of earning capacity. We find no reversible error.

Appellant’s first point for reversal is that the evidence to support the award is not substantial, because of absolute lack of credibility on the part of the appelleeclaimant, and the award depends, to a great extent, upon his testimony. This argument is based, for the most part, upon the claimant’s specific denial of any disability on his application to appellant for employment, even though, at the hearing on this claim, he was able to recall, without any difficulty, all the circumstances relating to the previous injury and disability and was even able to recall that some 20 years earlier, when he was 13 years of age, he had falsified his age in order to enlist in the army.

We have repeatedly held that determinations as to the credibility of witnesses are within the exclusive province of the Workmen’s Compensation Commission. Arkansas Foundry Co. v. Cody, 251 Ark. 57 (1971), 470 S. W. 2d 812; Bibler Brothers v. Allen, 251 Ark. 593, (1971), 474 S. W. 2d 116; Dacus Casket Co. v. Hardy, 250 Ark. 886 (1971), 467 S.W. 2d 713. Although testimony in a workmen’s compensation case might be so unworthy of credit that an award based upon it would be without substantial evidentiary support, we should not so hold under circumstances different from those justifying our finding that testimony is so incredible that it does not afford substantial evidentiary support for a jury verdict. Those circumstances, recently applied in Ellsworth Bros. Truck Lines v. Canady, 245 Ark. 1055, 437 S. W. 2d 243, and Lavender v. Southern Farmers Assn., 246 Ark. 762, 440 S. W. 2d 241, were well stated in St. Louis S. W. Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S. W. 768. There we said:

Appellate courts take notice of the unquestioned laws of nature, of mathematics, of mechanics and of physics. So where there are undisputed facts shown in the evidence, and by applying to them the well known laws of nature, of mathematics and the like, it is demonstrated beyond controversy that the verdict is based upon what is untrue and what cannot be true, this court will declare as a matter of law that the testimony is not legally sufficient to warrant the verdict. In the case at bar the conditions surrounding the plaintiff, as testified to by the defendant’s witnesses, furnish a very strong argument against the credibility of his testimony, but this is as far as the record authorizes us to go. It cannot be said that the testimony of the plaintiff is contradicted by the physical facts or is opposed to any unquestioned law of nature. His testimony related to matters, situations and conditions which might or might not have existed, and his right to recover depended wholly upon the truth or falsity of his testimony. His testimony was, therefore, evidence of a substantial character and if believed by the jury, was sufficient to warrant a recovery * * *.

We have stated the substantial evidence rule to mean that we will not overturn a finding of fact by a jury or circuit judge sitting as a jury unless there is no reasonable probability that the facts could be as related by a witness upon whose testimony the finding was based. Fanning v. Hembree Oil Company, 245 Ark. 825, 434 S. W. 2d 822; Lumbermens Mutual Ins. Co. v. Cooper, 245 Ark. 81, 431 S. W. 2d 256; Baldwin v. Wingfield, 191 Ark. 129, 85 S. W. 2d 689.

The same rule is just as appropriate to review of Workmen’s Compensation awards as to jury verdicts. We have uniformly held that the findings of the commission are to have the same force and effect as a jury verdict when supported by substantial evidence. Guynn’s Estate v. Helena Hospital, 240 Ark. 56, 398 S. W. 2d 526; Andrews v. Gross & Janes Tie Co., 214 Ark. 210, 216 S. W. 2d 386; Foster v. Ft. Smith Cotton Oil Co., 224 Ark. 394, 273 S. W. 2d 529. The same tests of substantiality of evidence, then, should be applied to Workmen’s Compensation Commission findings and jury verdicts.

Appellant’s remaining point for reversal is that there is no substantial evidentiary support for the award of 15% additional permanent partial disability for loss of earning capacity. As appellant points out, the question is not whether the evidence would have supported a contrary finding, but whether it supports the finding which was made. Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S. W. 2d 487. Appellant also points out that the claimant was to be compensated only for the degree of disability that would have resulted from the subsequent injury if the previous disability had not existed. Ark. Stat. Ann. § 81-1313(f) (2) (ii) (Supp. 1971). Appellant argues that there is no evidence as to loss of earning capacity attributable to the second injury. We do not agree.

Appellee was 36 years of age. He did not go beyond the seventh grade in school. He had never done anything except manual labor. His previous employment had included installation of chain link fences and operating a mowing machine. He testified that after his first surgery, he experienced no difficulty with his back, and was able to go hunting the day he got out of the hospital. His performance in the employ of appellant for one year as a router operator warranted an increase in his rate of pay. He said that he had “moonlighted” after work hours and during weekends doing such work as building fences and helping to feed livestock at a pay scale of $1.50 per hour, but was no longer able to do this kind of work. He said that he could no longer engage in his recreation of hunting and fishing because of his injuries. After surgery by Dr. Watson, he was released from treatment on May 15, 1971, by Dr. Joe B. Wilson, who advised him to discontinue “exertious” manual labor and to enter therapy for lighter employment. He said that he had endeavored to return to work for appellant on March 1, 1971, and actually worked for seven days beginning March 3. He testified that he was able to continue at the job only by taking 12 to 15 Anacin tablets daily and by going to bed as soon as he ate, bathed and read the newspaper after getting off work. He stated that finally, on the last day he worked, he had to leave his job and sit down because he was hurting so badly. The assistant foreman under whom he worked testified that he observed that Fulton was in pain the last day or two, and was complaining of pain in his back. The claimant’s wife corroborated his testimony in many respects. In spite of the fact that the foreman in charge of Fulton’s work testified that operating a router is not strenuous work, the other evidence of loss of earning capacity constitutes substantial support for the award.

The judgment is affirmed.


text:
    Scott LEONARD v. STATE of Arkansas
    5687
    476 S.W. 2d 807
    Opinion delivered February 28, 1972

      Louis W. Rosteck, for appellant.

      Ray Thornton, Attorney General; Milton Lueken, Asst. Atty Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Scott Leonard was convicted of first degree murder in the killing of Fred Pack, Sr., the proprietor of a liquor store at Fifteenth and Chester Streets in Little Rock, on March 26, 1971. A jury fixed his punishment at life imprisonment. He asserts that there was error in admission of certain shotgun shells into evidence, in giving an instruction offered by the state and in denying two instructions requested by him, and contends that the evidence was insufficient to prove that the killing was wilful, deliberate or premeditated. We find no reversible error.

Fred Pack, Jr., was an eyewitness to the entire episode. He worked for his father at the liquor store. Four black males came into the store between 8:30 and 8:45 p.m. to buy some beer. They were Scott Leonard, his younger brother Arthur Leonard (called Lee Lee), and James and Lonnie Clay. When the younger Leonard took a carton of Chámpale from the beer box and set it on the counter, Pack, Jr., asked him for an “I. D. card.” Appellant testified that he intervened, saying that he, not his little brother, was buying the beer, and exhibited an “I. D. card.” The younger Pack insisted on seeing the “I. D. card” of the younger Leonard, and when it was not forthcoming, Pack returned the carton of Chámpale to the beer box. The testimony as to what happened thereafter is conflicting.

Fred Pack, Jr., testified, and his version is as follows:

The four started arguing and making a disturbance, causing him to ask them to leave because other customers were present. One of the four picked up a bottle, slung it and hit some wine bottles, after which his father, who had been in the back of the store, came out. All four blacks had then left the store except for Arthur Leonard, and when his father ordered young Leonard to leave, the youth reached into his pocket. Pack struck Arthur Leonard’s head with his fist on which he wore a ring. The younger Leonard had been cursing in the presence of female customers. Pack saw two of the four men walking toward the Village Square Apartments at Sixteenth and Chester. Young Pack was filling the beer refrigerator on the south side of the store when a black male, whom he identified as appellant, came to the front door of the store, stood against the door with the barrel of a shotgun inside the store, fired one shot which broke the glass in the beer box and struck Pack in the arm and side. As the witness started toward the telephone at the rear of the store, appellant fired again, striking Pack, Jr., in his back, and then fired a third shot which may or may not have struck the younger Pack. While this witness was calling the police and an ambulance, appellant fired two more shots, striking the senior Pack, who had been standing behind the counter reaching for his pistol, which was in his hand and cocked when he was shot. At that time the junior Pack was lying on the floor and had his own pistol out.

The police had been called, and Detective Larry Dill and Sergeant Parkman arrived at the scene only a few minutes after the shooting. They found the senior Pack behind the counter and the younger Pack about three yards behind him. They found a pistol under each of the Packs, but neither weapon contained any spent rounds or powder odor or other evidence of having been fired. These officers found three 16-gauge shotgun shells on the floor just inside the door. Detective Dale Ridge picked up three purple 16-gauge spent shotgun shells at this spot. The officers then proceeded to Village Square Apartment 201, occupied by appellant, apparently on information from Joe Wesley, an undercover agent for the Alcoholic Beverage Control Board, that he had seen a man run out of the door of this apartment with a long barrel gun in his hand, while a lady was hollering for someone to stop him. When they arrived, they were admitted by a young lady in the apartment. When they explained what had happened and stated that they wanted to interview the people in the apartment, appellant stated that he had done the shooting and showed them a 16-gauge automatic shotgun under a bed. The officers saw and picked up more than one box of shells for a 16-gauge shotgun. These shells were strewn on the floor of the room between a closet and the hallway door.

Dr. Joseph Buchman examined Fred Pack, Sr., in the emergency room of Baptist Hospital, and later performed surgery and found that No. 5 or No. 6 shotgun pellets had penetrated his kidney. He said that the senior Pack died April 4, 1971, as the result of this wound. The empty shells found at the store were examined at the state police laboratory along with the shotgun by Officer Davidson. He testified that the three spent shells were fired from the shotgun and that two of them had contained No. I buckshot and the other high-powered No. 6. shot.

The court admitted into evidence the unexpended shotgun shells found in the apartment. There were two boxes, most of which were for a 16-gauge shotgun. Some of them contained No. 1 buckshot, and some were purple in color. Appellant contends that his admission that he did the shooting and had used the shotgun found in his apartment somehow made these shells inadmissible. Those which were buckshot shells matched two of the empty shells found at the store. All were of the same brand. They were relevant to issues on intent and to show that appellant’s supply of shells did not limit him to three shots. Appellant’s admissions did not make them irrelevant.

Appellant complains that his requested instruction, defining the degrees of homicide and their elements and relating to defendant’s burden, upon the killing being proved, should have been given instead of the one given by the court. His present argument is twofold, i. e., first, the instruction given did not advise the jury that there was no burden upon the defendant to prove mitigating circumstances if the evidence on behalf of the state showed that the offense amounted only to manslaughter, and second, the instruction included the citation of a decision of this court which was irrelevant and inappropriate to the issues in this case. No such objection as is now argued was made in the trial court. The objection to the giving of the instruction requested by the state was general only, but we cannot say that it was inherently erroneous. Manslaughter was clearly defined in the instruction given, and the jury was told that if it had a reasonable doubt as to the degree of the offense, it must give the benefit of that doubt to appellant, and that, if there was a reasonable doubt as to guilt of murder in the first degree, it should convict of murder in the second degree, but if there was reasonable doubt as to guilt of murder in the second degree it should convict appellant of manslaughter only. The jury was also told that the burden of proof was upon the state on the whole case to convince it of the defendant’s guilt. Where specific words are omitted from an instruction but do not render it inherently erroneous, the court’s attention must be specifically directed to the omission. Lewis v. State, 155 Ark. 205, 244 S. W. 458.

While it is preferable that this instruction be given in the words of the statute [Ark. Stat. Ann. § 41-2246 (Repl. 1964)] in a case where a finding of manslaughter is possible, we find nothing in the instruction given to mislead the jury by making it believe that the state did not bear the burden of proving beyond a reasonable doubt that the offense was murder rather than manslaughter or that the appellant bore the burden of proving that the crime was manslaughter rather than murder. See Hopson v. State, 121 Ark. 87, 180 S. W. 485.

We cannot say that appellant’s offered instruction constituted an objection to the omission he now complains of, because both the instruction given and the one offered were quite lengthy and covered the law governing numerous points. Such an offer does not adequately direct the court’s attention to the fault in the comprehensive instruction of which complaint is now made. McGuffin v. State, 156 Ark. 392, 246 S. W. 478, In such cases, we have said that if the court’s mind had been directed to the specific fault, the language would have been changed to meet the objection. We can say the same here. If appellant believed that the instruction was subject to misconstruction on the question of the burden of proof, it was incumbent upon him to call particular attention to this possibility, Hopson v. State, supra, and his request for an instruction did not have that effect. Markham v. State, 149 Ark. 507, 233 S. W. 676.

Although a citation of a court decision should not be given to a jury, we do not see how the citation included in the instruction could have possibly misled the jury in this case.

Appellant also contends that his requested instruction pointing out the effects of adequate cause upon the element of malice in distinguishing between murder in the second degree and manslaughter should have been given. We agree with the trial court that the instructions given distinguishing between express and implied malice and in defining the passion which would reduce a homicide from murder to manslaughter covered this request.

We have carefully reviewed the evidence and find it sufficient to support the jury’s finding that the killing was wilful, deliberate and premeditated. When Scott Leonard returned to his. apartment after the disturbance at the liquor store, he found Lee Lee armed with the shotgun and in an angry mood. Scott took the shotgun from Lee Lee and proceeded down the block to the liquor store, where he stood at the door and fired into the store. He justified his actions by saying that Pack, Jr., fired at him and one of the Clay brothers as they left the store, and that he found his younger brother bleeding from wounds inflicted by the younger Pack’s striking the youth with a pistol. He disavowed any intent to do anything other than “break a little glass” as revenge for the mistreatment he, his brother and other witnesses testified about. Although he professed to be so confused he didn’t know what he was doing, he testified that when he got to the liquor store, he threw open the door, held it with his foot and shot into the place. But he also said that he was “breaking glass” in the beer refrigerator, at which Fred Pack, Jr., testified that he was standing. At least one shot fractured the glass on this refrigerator. Although he claimed he was not aiming the gun, he said that he was shooting at the beer refrigerator and the bottles on a shelf. He admitted seeing the younger Pack standing by the beer box when he fired. Appellant claims that the elder Pack did not engage in the dispute or altercation and that there could have been no motive for shooting at him, so the requisite intent is lacking. Appellant’s claim that shots which struck the elder Pack might have ricocheted off some object would not relieve appellant of guilt, if he intended to kill the son rather than the father. Henley v. State, 210 Ark. 759, 197 S. W. 2d 468; Clingham v. State, 207 Ark. 686, 182 S. W. 2d 472; Lillard v. State, 236 Ark. 74, 365 S. W. 2d 144.

In any event, the jury accepted young Pack’s version of the incident and it, with other evidence in the case, constituted sufficient evidence to support a finding of first degree murder.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    Sue Ann CHILDERS, formerly Sue Ann O’Neal v. Troy L. O’NEAL, Jr.
    5-5784
    476 S.W. 2d 799
    Opinion delivered February 28, 1972
    S. Daniel George, Sallisaw, Okla., and Wiggins if Christian, for appellant.

      Gean, Gean if Gean, for appellee.
   J. Fred Jones, Justice.

The appellant, Sue Ann Childers, was formerly married to the appellee, Troy L. O’Neal, Jr., and they are the parents of a four year old daughter. This is an appeal by Sue Ann from an order of the Sebastian County Chancery Court denying her motion for a change in the custody of the child. On appeal to this court the appellant relies on the following point for reversal:

“The chancellor erred in not modifying the prior order of divided custody of Rhonda O’Neal.”

The parties to this action were divorced by decree of the Sebastian Chancery Court on July 5, 1968. They announced in open court that they had agreed to divide the custody of the child equally between them with each having its custody for six months each year with right of visitation by the one out of custody. This agreement was approved by the chancellor and incorporated into the divorce decree. Both of the parties have remarried and since her remarriage the appellant has filed several motions for full custody of the child, alleging changed conditions since the decree that would justify a change in custody. Each motion has been denied by the chancellor who rendered the original decree, and this appeal is from the last of five orders so entered.

We try chancery cases de novo on appeal to this court but we do not disturb the chancellor’s orders or decrees on questions of fact unless they are against the preponderance of the evidence. Dyer v. Dyer, 116 Ark. 487, 173 S. W. 394.

It would serve no useful purpose here tó set out the testimony in detail. The substance of the appellant’s allegations, as well as the substance of her testimony is to the effect that she now has a nice and comfortable home; that she is in a position to devote her full time to her children and that she wants the full-time custody of the child. She also testified as to some inconvenience, and in her opinion difficulty, in exercising her visitation rights reserved in the decree during the six month periods the child is in the custody of the appellee.

Dr. Joe H. Dorzab with specialization in psychiatry testified that in his opinion permanent custody in one parent is better for a child than to have the custody split between the parents. He had interviewed the appellant and her present husband, as well as the child, and was unable to say that the split custody has been detrimental to the child in this case.

The attorneys on both sides of this case seem to recognize that the best interest of the child is the prime consideration of the courts in child custody cases, but there is nothing in the record that would indicate that the chancellor was not fully aware of his responsibility in this connection. The appellant cites several decisions, from this court as well as decisions from the courts of other states, frowning on split custody of children between divorced parents, but the chancellor found in the case at bar, that the child is adjusting nicely to the situation; that she is maturing properly without difficulty; that she is enjoying both her parents as much as possible under the circumstances, and without detriment to herself under the split custody arrangement, and we find no evidence to the contrary.

It must be remembered that the parties agreed to equally divide the custody of the child from the beginning and there is nothing in the record to indicate that the split custody is having an adverse effect on the child. There is nothing in the record indicative that either parent is unfit to have the custody of the child. The chancellor recognizes that it will be necessary to make different custody arrangements when the child reaches school age. It is true, of course, that courts generally do not favor split custody of children between divorced parents, but it is a matter of common knowledge and common sense that the attitude of the parents who share such custody can greatly enhance or greatly diminish the traumatic effect such custody has on the child involved.

The decree is affirmed.


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

text:
    OAKLAWN JOCKEY CLUB, INC. v. PICKENS-BOND CONSTRUCTION CO. et al
    5-5773
    477 S.W. 2d 477
    Opinion delivered February 28, 1972
    [Rehearing denied April 10, 1972.]

      Smith, Williams, Friday, EAdredge ér Clark; By: Boyce R. Love, for appellant.

      James A. Pate, for appellees.
   Conley Byrd, Justice.

Theo Tyler, an employee of appellee Pickens-Bond Construction Co., was injured on the premises of Oaklawn Jockey Club while in the scope of his employment when the handle of a bull float came in contact with some electrical power lines owned and operated by Arkansas Power & Light Company. Admittedly he is being paid Workmen’s Compensation benefits. Tyler brought suit against Arkansas Power & Light Co. and the Oaklawn Jockey Club, Inc., alleging that the Oaklawn Jockey Club was negligent in failing to provide him with a safe place in which to work; in failing to request Arkansas Power & Light Co. to dis-con tinue the lines and in constructing its facilities too close to the power line. After answer and cross-complaint of A. P. & L. and Oaklawn Jockey Club against each other, Oaklawn Jockey Club, then filed a cross-complaint against Pickens-Bond Construction Co. in which it alleged:

“1. Oaklawn, as the owner, contracted with Pick-ens-Bond as the contractor, to build a new building in Hot Springs, Arkansas, which is the construction that was underway at the time of the alleged accident and injury which is the subject matter of this lawsuit. The construction was entirely under the supervision and control of Pickens-Bond, was only partially completed at the time of the injury on August 15, 1968, and had not yet been turned over to or accepted by Oaklawn.
2. There was implied in the contract between the owner and the contractor an obligation on the part of the contractor to perform the work in a safe manner, to provide safe working conditions for its employees, to refrain from creating hazardous conditions which could cause injury to the contractor’s employees and thereby subject Oaklawn to liability to such employees; and to comply with all laws, regulations and building codes pertaining to safety on the job and manner of doing the work. The plaintiff was at the time of the incident an employee of Pickens-Bond.”

Upon motion of Pickens-Bond, the trial court dismissed Oaklawn’s cross-complaint for implied indemnity on the basis that Pickens-Bond’s liability was limited by the Workmen’s Compensation law, Ark. Stat. Ann; § 81-1804.

Those courts dealing with implied and contractual indemnity, Moroni v. Intrusion-Prepakt, Inc., 24 Ill. App. 2d 534, 165 N. E. 2d 346 (1960), American District Telegraph Co. v. Kittleson, 179 Fed. 946 (8th Cir. 1958) and C. L. Rural Electric Coop. v. Kincaid, 221 Ark. 450, 256 S. W. 2d 337 (1953), ordinarily recognize that the contractor’s duty to indemnify the owner, under such circumstances, is not controlled by the Workmen’s Compensation law. In C. & L. Rural Elec. Coop. v. Kincaid, we were dealing with an express indemnity. The grounds for implied indemnity were stated in the Moroni case in this language:

“The . . . general principle is announced, however, in many cases, that where one does the act which produces the injury and the other does not join in the act but is thereby exposed to liability and suffers damage the latter may recover against the principal delinquent, and the law will inquire into the real delinquency and place the ultimate liability upon him whose fault was the primary cause of the injury.”

The justification for applying the theory of implied indemnity is amply demonstrated by the alleged facts. Should Tyler recover damages against Oaklawn, then under our Workmen’s Compensation law, Pickens-Bond would be reimbursed its Workmen’s Compensation expenditures for an injury that allegedly was caused by and occurred under the control of Pickens-Bond and for which Oaklawn was only secondarily liable.

In holding that the Workmen’s Compensation Act did not abolish the right of a third party to be indemnified the court in the Moroni case said:

“Plaintiff does not sue for damages ‘on account of’ Haviland’s death. Plaintiff asserts its own right of recovery for breach of an alleged independent duty or obligation owed to it by the defendant.
“It may be admitted that if the defendant is held to answer to the plaintiff in this action the result . . . is that an employer is made liable indirectly in an amount which could not be recovered directly. This consequence, we think, does not decide the issue against the plaintiff. Recovery over against the employer is an unusual case like this need not be rested upon any theory of subrogation. An independent duty or obligation owed by the employer to the third party is a sufficient basis for the action.”

The annotation in 53 ALR 2d 977 relied upon by Pickens-Bond as authority for the proposition that an employer is protected by the Workmen’s Compensation law from an action by a third party for contribution deals only with claims of third persons having a common liability such as joint tort feasors. By express provision, the annotation excluded a discussion of those cases, such as this, where the third party’s action is for a duty owed to it by the employer.

It follows that the trial court erred in dismissing Oaklawn’s cross-complaint in so far as it stated a cause of action for implied indemnity.

Reversed and remanded.

Harris, C. J., and Fogleman, J., dissent.

John A. Fogleman, Justice,

dissenting. Although I agree with the majority opinion that the workmen’s compensation insurance carried by Pickens-Bond Construction Company does not immunize it from liability for indemnity as general contractor to Oaklawn Jockey Club as owner, it seems to me that the summary judgment in the case should be affirmed for another reason. Theo A. Tyler sued Oaklawn Jockey Club, alleging negligence on the part of the Jockey Club in the following particulars:

1. Failing to provide plaintiff a safe place in which to work;
2. Failure to request the defendant Arkansas Power and Light Company to discontinue the transmission lines in question;
3. Negligently constructing their building facilities in close proximity to the power line in question thereby creating a dangerous and hazardous condition for workmen on the concrete porch of said building where the defendant Oaklawn Jockey Club, Inc. knew or should have known that plaintiff or other workmen would be working.

As I read the complaint these are allegations of negligence on the part of the Jockey Club itself and not allegations of derivative, vicarious or joint liability with Pickens-Bond Construction Company.

The cross-complaint of Oaklawn Jockey Club against Pickens-Bond seeks indemnity for any liability to the plaintiff to which Oaklawn is subjected. The motion for summary judgment did not make mention of the issue with reference to workmen’s compensation but was in general terms on the grounds that there was no genuine issue as to any material fact and that Pickens-Bond was entitled to judgment as a matter of law.

The summary judgment dismissed the cross-complaint against Pickens-Bond. While the judgment recites a holding that the workmen’s compensation remedy is exclusive and that Oaklawn Jockey Club cannot maintain an action for indemnity against the contractor for that reason, there was also a general finding that the cross-complaint against Pickens-Bond should be dismissed.

It is my view that Oaklawn Jockey Club cannot recover from Pickens-Bond on an implied indemnity for its own acts of negligence which were the .proximate cause of the plaintiff’s injury. We have held that a general contractor cannot recover from a subcontractor under an express agreement for indemnity for active negligence on the part of the general contractor which was the proximate cause of injury to an employee of the subcontractor. Pickens-Bond Construction Co. v. North Little Rock Elec. Co., 249 Ark. 389 (1970), 459 S. W. 2d 549. The same principle of law should apply as between an owner and a general contractor even if there were an express agreement. There is all the more reason for its application if there was no express agreement.

I would affirm the summary judgment.

I am authorized to state that Chief Justice Harris joins in this dissent.


author: Conley Byrd, Justice.

text:
    George POINTER et ux v Sadie RICKER
    5-5786
    476 S.W. 2d 798
    Opinion delivered February 28, 1972

      Mann & McCulloch, for appellants.

      Fletcher Fong, Jr., for appellee.
   Conley Byrd, Justice.

Appellee Sadie Ricker, as the result of an automobile collision, obtained judgment upon a jury verdict for $25,000 against appellants George and Louise Pointer. The collision occurred at the intersection of Washington and South streets in Forrest City, Arkansas, following a Christmas parade. Appellee was headed south on Washington and appellants were headed west on South street. Appellants’ vehicle struck appellee’s vehicle near the left front door. For reversal appellants contend:

“I. There was not sufficient evidence to warrant the giving of instructions on agency between the husband and wife.
II. The evidence was insufficient to warrant the giving of instructions on permanent injury and future medical expense.
III. The verdict was excessive.
IV. There was error in admitting Plaintiff’s Exhibit No. 6.

Point I. The liability of the wife as the owner occupant of the automobile was properly submitted to the jury. The proof shows that the car was owned by Louise Pointer. Her husband was driving the car. Mrs. Pointer was riding in the car at the time of the collision. In Johnson v. Newman, 168 Ark. 836, 271 S. W. 705 (1925), we held that the responsibility of an owner-occupant under the doctrine of respondeat superior was a question of fact for the jury.

POINT II. Appellants here contend that the proof was insufficient to warrant instructions on permanent injury and future medical expenses. We do not agree. The collision occurred December 7, 1968, and appellee was examined by Dr. Richard Logue on April 1, 1970. Dr. Logue found that appellee was suffering with a pulse deficit or thoracic outlet syndrome in her left arm. He testified that because of the lapse of time and the persistence of the symptoms there would probably be some persistent symptoms and pain of a permanent nature. However, in his judgment, the symptoms and pain were not of the degree that would require any more active treatment than had already been had. In his opinion the conditions he found would to some extent in the future cause appellee neck, shoulder and head pain. Appellee testified that she was still taking medication at the time of trial.

POINT III. Neither do we find the verdict excessive. The proof showed that appellee, age 58 at the time of collision, had done all kinds of manual labor, including driving everything from a team of mules to trucks and tractors. Shortly before the collision she worked as a home nurse, mostly caring for elderly patients at an average income of $295 a month plus room and board. Her job as a home nurse required physical strength in handling the elderly patients. After the accident, appellee, because of the pain and loss of grip, was unable to carry on her former occupation — in fact she had spent her savings and was of necessity living with relatives. Testimony from other witnesses was that before the accident, appellee while visiting them would pitch in and help with the house work but that after the accident she did little or nothing to help and was often forced to go to bed a lot because of pain. While it may be said that the $25,000 verdict is liberal, we cannot say it is excessive.

POINT IV. The item objected to in appellee’s exhibit No. 6 is a $50 charge by Dr. Logue for “office exam-evaluation-report.” This item, a trial expense, was obviously not a part of appellee’s medical expense and should have been excluded. However, any error in connection therewith, can be cured by reducing the judgment from $25,000 to $24,950.

As modified the judgment is affirmed.


author: Frank Holt, Justice. John A. Fogleman, Justice,

text:
    G. E. POWELL and SIMMONS FIRST NATIONAL BANK, Co-Executors of the Estate of Ben Pearson v. Evajane PEARSON
    5-5766
    476 S.W. 2d 802
    Opinion delivered February 28, 1972

      Chowning, Mitchell, Hamilton Chowning, for appellants.

      Thurman Ragar Jr. and Carlton Currie, for appellee and cross-appellant.
   Frank Holt, Justice.

Appellee, the divorced wife of Ben Pearson, deceased, brought this action against the appellants to enforce a “property settlement and alimony agreement” against decedent’s estate. In 1951, in contemplation of divorce, Pearson and the appellee made an agreement which provided that Pearson would convey to appellee their homestead and bound himself, his “executors, administrators, or heirs,” to pay in full the existing mortgage. As security he agreed to assign sufficient proceeds from his life insurance in payment of the mortgage, as well as payment of the taxes and insurance during the indebtedness. It was agreed that she would own the household furniture and fixtures and the utility deposits for the dwelling. In addition, he agreed to bind himself to pay her $180 per month as alimony “so long as she shall live, or until such time as such Evajane Pearson shall remarry.” In “consideration” of the “aforesaid,” the appellee agreed ic. deed to him her interest in four city lots. This agreement was approved by the chancéllor and incorporated into the divorce decree. In doing so the chancellor found that the parties had made “a contract wherein ai. property rights and alimony payments have been settled and agreed upon.”

Pearson fully complied with the terms of the agreement until his death in 1971. When the appellants, co-executors of the estate, refused to continue the alimony payments, appellee filed a claim alleging that the provisions in the agreement as to alimony did not terminate upon Pearson’s death; further, that the obligation continued so long as she lived or until she remarried; and that the amount due should be converted to its present value and paid to her. It was stipulated that appellee had not remarried and that she is 70 years of age. The present value of the estate was also agreed upon in the event the court found it was susceptible to a reduction.

The probate court found that the alimony agreement did not terminate upon the death of Pearson; that his estate was liable for payments to the appellee in accordance with the pre-divorce agreement) further, that appellee’s claim was not susceptible to reduction to its present value, and ordered appellants to pay appellee the monthly payments as provided in the agreement. For reversal appellants contend that the agreement was not an independent contract, and, therefore, it merged into and became a part of the divorce decree which made the periodic monthly payments nothing more than alimony terminating upon Pearson’s death; also, that the court erred in holding that it was the intention of the parties to have these monthly payments continue after his death.

In Armstrong v. Armstrong, 248 Ark. 835, 454 S. W. 2d 660 (1970) the husband, in a written contract incorporated in the divorce decree, agreed to pay his wife from the date of the anticipated divorce "the sum of $160 per week as alimony for life or until she remarries.” Also, the husband agreed to pay the taxes on the homestead as long as alimony was due and she continued to own the home. We said that this pre-divorce agreement, even though improvident, “clearly shows an independent agreement for it will be noted, that unless she remarries, appellee is due to receive alimony for life. This is not normally a provision that would become merged in a decree.” We held that this was an independent contract enforceable in law or equity. Likewise, in the case at bar we hold that this written agreement to pay alimony for the duration of appellee’s life or until she remarries demonstrates that it was a separate and independent contract between the parties which could be enforced- either in a court of law or equity. See, also, Seaton v. Seaton, 221 Ark. 778, 255 S. W. 2d 954 (1955); Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d 439 (1950).

We also agree with the probate court that it was the intention of the parties that the alimony payments would continue after Pearson’s death. Appellants argue that since Pearson bound his estate to discharge the indebtedness on the home, the absence of similar language with respect to the payment of alimony indicates the intention not to bind the estate. Appellee, however, responds that the contract language is explicit and unambiguous that she would receive alimony as long as she lives or until she remarries. Appellee was the only witness and she testified that at the time of their settlement and divorce her husband was part owner of a very profitable manufacturing business with sales in the hundreds of thousands of dollars; that he was a man of substantial means; that since the divorce her principal source of income was her alimony; that presently her only income is a $66 per month social security check; that they had been married for 30 years and she had assisted in the business as a secretary. It appears that Pearson, following the pre-divorce settlement, secured the divorce upon the basis of three-years separation.

A husband can make an independent agreement to pay his wife alimony with a continuing obligation upon his estate after his death. Such an agreement is valid when stated by express terms or the intentions of the parties are determinable from the wording of the contract, together with the surrounding circumstances. 39 A. L. R. 2d 1415; Desjardins v. Desjardins, 193 F. Supp. 210 (E. D. Ky. 1961); Taylor v. Gowetz, 158 N. E. 2d 677, 75 A. L. R. 2d 1079 (1959).

In the case at bar, which is one of first impression, we agree with the probate judge that it was the intention of the parties that the alimony obligation would continue as long as appellee lives or until she remarries and that it is an enforceable obligation against the decedent’s estate. In the circumstances, had the parties intended otherwise, the agreement could have provided that this obligation would cease upon the death of the promisor. We view this transaction as a complete and permanent settlement of the rights between the parties with all the elements essential to a valid and enforceable contract.

On cross-appeal the appellee asserts that the court erred in refusing to commute appellee’s claim to its present value pursuant to the provisions of Ark. Stat. Ann. § 62-2608 (Repl. 1971). The pertinent part of this statute provides: “Upon proof of a claim which will become due at some future time, the amount of which is capable of ascertainment, the court shall allow it at the present value thereof, and payment may be made as in the case of an absolute claim * * Appellee testified that because of her religious beliefs she had no intention of ever remarrying. The court, however, correctly held that “the amount of the [her] future claim [is] completely uncertain and not capable of ascertainment” inasmuch as, “[notwithstanding the improbabilities of claimant ever remarrying”, * * * “the possibility will be ever present so long as she lives”, therefore, “her claim can only become absolute” as each payment becomes due.

Affirmed on direct and cross-appeal.

Harris, C. J., not participating

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the result reached in this case, substantially upon the basis of our decision in Armstrong v. Armstrong, 248 Ark. 835, 454 S. W. 2d 660, from which I dissented. It appears to me that there are a number of elements in the agreement here that are similar to those involved in the Armstrong case. One of them is the provision of the payment of alimony for life. Another is the agreement of the husband to pay taxes and insurance on the property conveyed to the wife until the indebtedness was paid in full. This latter obligation bound the executors, administrators or heirs of the husband. As I understand the decree it makes no mention that the payment of alimony is to continue for the life of the wife, even though the agreement was approved by the court. The decree simply orders and directs the payment of $180 per month as alimony, the balance of the indebtedness due Southern Savings and Loan Association on a mortgage and the taxes and insurance on the mortgaged property and requires the assignment of an insurance policy. It says nothing about the conveyance or retention of certain property which was also the subject of the property settlement agreement.

It also seems to me from a reading of the agreement in this case that the payment of the sum of $180 per month was not, strictly speaking, alimony, but was agreed upon as a part of the property settlement as well as an alimony agreement.