author: Carleton Harris, Chief Justice.

text:
    Paul Wm. Theodore Moore Jr. v. State of Arkansas
    5173
    407 S. W. 2d 744
    Opinion delivered November 7, 1966

      Penix & Penix, for appellant.

      Bruce Bennett, Attorney General; James C. Wood, Asst. Atty. General, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Paul William Theodore Moore, Jr., was charged by Information with Forgery and Uttering in 'Craighead County, Arkansas. After demanding an early trial, and refusing the offer of counsel, stating that he would prefer to represent himself, Moore was tried by the Craighead County Circuit Court sitting as a jury, found guilty as charged in the Information, and sentenced to five years for forgery, and five years for uttering, the sentences to run consecutively. From the judgment so entered, appellant brings this appeal. For reversal, it is asserted that Moore was not guilty of forgery and uttering, and the proper charge, if any, was False Pretense. It is also alleged that Moore was entitled to trial by a jury, and that he was further entitled to counsel “almost from the moment of his arrest,” his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution being violated under the holding in Escobedo v. Illinois, 378 U. S. 478. We proceed to a discussion of these points in the order listed.

The evidence reflects that Moore went into the Mercantile Bank in Jonesboro, and told Tony Futrell, Assistant Cashier of the bank, that he needed “about $30.00 till tomorrow,” at which time he would have the opportunity to transfer money from a bank in Texas. Moore represented that he was working at the airport, installing an electrical transmission system. He further said that he was staying at the Holiday Inn, and would be in Jonesboro about three weeks. After some further conversation, Futrell agreed to cash the check, and Moore then took a blank check that he had in his possession on the Midway National Bank of Grand Prairie, Texas, and wrote the check in the amount of $30.00,' listing the account number as No. CA-973, and then signing on the signature line, “Carlton Electric Co., Ltd.” Immediately beneath the signature line, he wrote, “Vancouver, B. C., Canada,” and still below that, added “PaúIW. T. Moore.” After checking with the airport, Holiday Inn, and the Midway Bank, Futrell called the police officers, and Moore was arrested.

Boland W. Walden, President of the Midway National Bank of Grand Prairie, Texas, testified that he had thoroughly searched the records of his bank- with respect to an account of Carlton Electric Co., Ltd., and that no such account existed, or had ever existed. He further stated that no account had ever existed at the' bank under the name of’ Paul W. T. Moore. Walden testified that the account numbers in his bank had no letters whatsoever, and all account numbers contained more digits than that on the check in question.

Moore subsequently took the stand, and admitted that he was not connected with any Carlton Electric Co., Ltd., and also admitted that that name was entirely fictitious. In addition, he stated that he had no account at the bank.

We disagree with the contention that Moore was improperly charged with forgery and uttering, rather than false pretense, though it appears from the evidence that he could have also been charged with that offense. The basis of appellant’s allegation of the erroneous charge is that he signed his own name to the cheek, but it must be remembered that Moore, in signing this check, represented that Carlton Electric Co., Ltd., had an account with this bank. In other words, he did not maintain in signing the check, that he had a personal account in the Midway Bank, but only that he had authority to sign checks on the company — an account which he knew did not exist — and which could not exist, since he had made up the name, and to his knowledge, no such company was in being. We have held on several occasions that forgery can be committed where the name forged is fictitious. See Maloney v. State, 91 Ark. 485, 121 S. W. 728, Walker v. State, 171 Ark. 375, 284 S. W. 36, Tarwater v. State, 209 Ark. 687, 192 S. W. 2d 133, and Thompson v. State, 293 Ark. 780, 394 S. W. 2d 491. In fact, the contention here made was also relied upon in Walker v. State, supra. In discussing this argument, we said:

“It was shown that the name of the drawer of the check, T. E. Smith, was that of a fictitious person, and instructions were asked which, if given, would have told the jury that, if this were true, appellant would not he guilty of forgery, but would be guilty of the offense of obtaining goods and property under false pretenses, an offense not charged in the indictment, and to acquit the defendant on this account. * * *

“The court did not err in refusing to instruct the jury that, if T. E. Smith were found to be a fictitious person, the crime committed was not forgery, but that of obtaining money under false pretenses. In the case of Maloney v. State, 91 Ark. 485, it was held that to constitute forgery the name alleged to be forged need not be that of any person in existence.”

We find no merit in this contention.

With regard to the second contention, we agree that our constitution grants the right to trial by jury. See Article 2, Section 7, Arkansas Constitution. However, that same section also provides that a jury trial may be waived by the parties in all cases in the manner prescribed by law. Here, the record reflects that Moore, on July 19, 1965, at arraignment, told the court that he desired a speedy trial, whereupon appellant was informed that the next term of the Craighead Circuit Court would not convene until November. Moore replied that he could not make bail, and he requested that he be tried by the judge of the court, sitting as a jury. Other court matters intervened to prevent the court’s return until September 2, at which time the trial was held. Ark. Stat. Ann. § 43-2Í08 (Repl. 1964) reads as follows:

“In all criminal cases, except where a sentence of death may be imposed, trial by a jury may be waived by the defendant, provided the prosecuting attorney gives his assent to such waiver. Such waiver and the assent thereto shall be made in open court and entered of record. In the event of such waiver, the trial judge shall pass both upon the law and the facts.”

This statute was followed, and there was no error. The right to a speedy trial does not mean that all other business of the court must be “shoved to the back” in order to give an immediate trial. Such action, of course, would be impossible, since there are other criminal cases that must be disposed of, those defendants holding exactly the same right as the defendant who desires early disposal of his particular case. Obviously, all could not be heard within a short period of time. The case was heard by the court, sitting as a jury, only because of appellant’s insistence that this be done.

Finally, it is urged that Moore was entitled to counsel after he was arrested, and that the failure to furnish counsel at that time was a violation of his constitutional rights as set out in Escobedo v. Illinois, supra. This allegation is based upon the fact that Moore gave a written statement to Officer Bratton of the Jonesboro City Police, in which he admitted that the name, “Carlton Electric Company,” was entirely fictitious, and that he knew there was no account in that name, or his name; also, that he had no account under any name in the Midway National Bank. We do not agree that this case comes under the holding in Escobedo. Officer Bratton testified that he advised Moore that the latter was entitled to counsel, and the witness further said that the statement was entirely voluntarily made. The statement itself, signed by Moore, sets out that he has been advised of his right to counsel, and also advised that he did not have to make any statement. This is far afield from Escobedo, where a handcuffed prisoner was admittedly not advised of his constitutional rights, but rather was urged to make a statement. In addition, the accused repeatedly asked to speak to his lawyer, and the lawyer, who was present in the building, was refused permission to talk with Escobedo. It is apparent that there is not even a shred of similarity between the cases. For that matter, Moore did not, even at his trial, contend that he had been denied legal counsel, or that he had been deprived of any other right. In fact, before the statement was admitted, the court gave Moore the opportunity to show the circumstances under which the statement was made, but Moore declined.

Moore certainly could not have been prejudiced by the statement given, since he, of his own volition, took the witness stand to testify in his own behalf, and, in open court, admitted that he. signed and cashed the check, thát the Carlton Electric Company was entirely a fictitious name, and that he himself had no account at the bank.

The record reflects that the court was apparently very careful, at the time of arraignment, to see that Moore understood that the charges against him constituted a felony, and that appellant understood the court could immediately appoint an attorney for him so that he might have the benefit of counsel during all subsequent proceedings. The offer, as previously mentioned, was declined, Moore preferring to represent himself. The record does not reflect the reason for this choice, but Moore cross-examined all state witnesses and presented one witness for the defense, in addition to his own testimony.

Finding no reversible error, the judgment is affirmed.

It is so ordered.

      The court appointed counsel to represent Moore in the appeal to this court.

       In Maloney v. State, supra, and Thompson v. State, supra, we reversed the convictions, holding that the state had not proved the purported drawer to be fictitious.

       The record is not clear at this point, but the court evidently informed Moore that a jury would not be impaneled before that time.

      “The Court: I suggest, at this time, let the defendant look at the statement. He would be entitled, at this time he would be entitled to cross-examine the witness regarding the circumstances under which the statement was made. Take your time, Mr. Moore, read that over before you do that. (Note: Defendant examined statement.)
      ■“The Court: At this time, Mr. Moore, you may ask any questions of this witness, regarding the circumstances under which the document you have before you was taken and prepared and those circumstances prior thereto, may ask him any question. It is necessary for the court to determine, whether or not, the statement was voluntarily made and in subservience to your constitutional rights in the matter. May ask this witness any question, surrounding the circumstances, you desire.
      “Mr. Moore: No questions, Your Honor.”

      Moore admitted, while testifying in his own behalf, that he had been convicted on approximately 22 counts of false pretense, and one parole violation.


source: Caselaw Access Project

license: Public Domain

text:
    Sammons-Pennington Co. v. Harry H. Norton et al
    5-3992
    408 S. W. 2d 487
    Opinion delivered November 7, 1966
    [Rehearing denied December 12, 1966.]

      Switzer' & Griffin, for appellant,

      John F. Gibson and James L. Sloa/n, for appellees.
   Carleton Harris, Chief Justice.

Appellees, Harry H. Norton and Thomas M. Mann, purchased all assets of the Graham-Wilson Company, consisting mainly of coin operated music machines, and Sammons-Pennington Company, appellant herein, financed the transaction for appellees, as hereinafter set out. On February 15, 1964, appellees executed a conditional sales contract and note in the amount of $15,943.05, plus a finance charge of $2,-574.79. We shall refer to these instruments' hereafter as Contract No. 1. A short time thereafter, Norton advised the company that the contract and note were unacceptable for the reason that the payments exceeded the sum of $100.00 per week, and appellees did not desire to pay more than this amount, including interest. Appellant company then prepared a new contract and note to be used in lieu of Contract No. 1 (apparently using the same date), which provided for weekly payments over a period of 192 weeks, or 44.3 months, payments being set at $100.00 per week. We shall refer to these instruments as Contract No. 2. The paper was subsequently sold to Walter E. Heller Company of Chicago, the finance company for Sammons-Pennington, appellant guaranteeing payment. According to the evidence, this was the first time that appellant had granted a loan for this long a period of time; theretofore the company had set a maximum term for a loan of this type at 36 months. George W. Sammons, President of SammonsPennington Company, and who resides in Memphis, testified that he knew that the legal rate of interest in Arkansas was 10% simple interest, but he did not know how to figure the amount under the new contract; accordingly, he called the Walter Heller Company to ascertain the correct amount to be charged as interest. The finance company, using “Lake’s Monthly Installment and Interest Tallies,” gave him the figure of $3,-182.64 for interest, which was added to the principal sum of $15,943.05. On August 1, 1964, Mann and Norton entered into another conditional sales contract with appellant covering the purchase of additional equipment, the note being in the amount of $1,637.71, which included carrying charges of $227.71. This note was to be paid over a period of 36 months, the first 35 installments in the amount of $46.00 each, and the final installment being in the amount of $27.41. We shall hereafter, refer to these instruments as 'Contract No. 3. After appellees defaulted in six payments, appellant instituted suit in June, 1965, in the Ashley County Chancery Court to recover on Contracts 2 and 3, seeking judgment in the amount of $13,220.79, together with interest from February 1, 1965. Appellee Norton answered, asserting that Contract No. 2 was nsnrions, and accordingly void, and he contended that both contracts (Nos. 2 and 3) should be cancelled, and title to all property involved should be vested in him. On trial, the Chancellor found that Contract No. 2 was void, because of usury, but that the August, 1964, contract (No. 3) was valid, and judgment was given to appellant for the balance due under that agreement. From that portion of the decree holding Contract No. 2 void, cancelling same, and voiding the lien, appellant brings this appeal.

We have reached the conclusion that this decree should be reversed, though it is stipulated that the amount of interest called for under Contract No. 2 was an overcharge (in excess of 10%) of between $57.00 and $60.00. It might be stated that the Chancellor was not without case authority in reaching his determination, and he cited several cases in a comprehensive opinion in support of his findings. Appellees mainly rely upon our cases of Ford Motor Credit Company v. Catalani, 238 Ark. 561, 383 S. W. 2d 99, Brooks v. Burgess, 228 Ark. 150, 306 S. W. 2d 104, and Holland v. Doan, 228 Ark. 340, 307 S. W. 2d 538. Appellant relies principally upon our case of Cox v. Darragh Company, 227 Ark. 399, 299 S. W. 2d 193, although other cases are also mentioned in appellant’s brief. Actually, it would seem that we have two lines of cases, the line of demarcation between usurious and nonusurious contracts being rather slight. It appears that, in determining whether a usurious charge has been made, all attendant circumstances must be taken into consideration. When this is done, we think it is plain that the overcharge in the instant litigation was the result of an error, made in good faith, rather than being based on an intent to violate the usury law. In the first place, there is no question but that the first contract prepared (Contract No. 1), which called for the retirement of the debt in 36 months, was a valid contract, i. e., there was no usurious charge. The testimony by Sammons, undisputed in the record, was that the company had never before granted a loan for a term of more than 36 months. Sammons testified that, in order to satisfy appellees, he agreed to extend the time for a sufficient period to enable appellees to make payments of exactly $100.00 per week. Sammons then stated:

“* * * I put in a call to my finance man, the man that buys my paper, the Walter E. Heller Company, in Chicago and told him what my deal was and due to the fact that we had a tremendous amount of bad luck down in this area with people trying to pay us and he said that he would make an exceptance to the rule and extend this greater than a 36 months period.”

Not knowing how to figure the interest on the new term, he sought the advice of the Heller Company, and requested that company to give him the proper figures. He testified that he used the interest figure given to him by Heller. In this approach, Sammons actually followed, though unknowingly, a suggestion given in Holland v. Doan, supra, where we stated that if the appellee did not know how to figure interest, “he should have had his calculations checked by one who was familiar with figuring interest.”

Another important circumstance to be considered is the fact that the interest rate on the third contract between the parties, which was figured on the basis of 36 months, was entirely legal.

Charles Mott, Jr., a Certified Public Accountant of Little Rock, testified on behalf of appellees that Contract No. 2 (February, 1964) was usurious, though it is interesting to note that he reached an overcharge figure of $67.81, which he stated he only arrived at after quite some length of time, “I would judge that it would take the biggest part of a day to compute it.” The witness stated that his computation' was not exactly correct, because it was figured on a calendar year of 364 days instead of 365. Mott also said that he was familiar with the book, “Lake’s Monthly Installment and Interest Tables; ’ ’ that it was widely used, and that he would accept it as conveying valid information. Apparently, the interest under the terms of this particular transaction was difficult to reach, since, as already stated, in stipulating the amount of the overcharge, no definite figure was used, but rather, “approximately $57.00 to $60.00.”

Finally, though our determination is not based on that premise, it seems rather ridiculous that any concern would risk cancellation of a principal debt of nearly $16,000.00 (not counting interest), in order to receive “approximately $57.00 to $60.00” excess interest.

Summarizing, we think the circumstances show an honest, unintentional mistake, because of the following evidence:

1. The first contract prepared did not charge any excess interest.

2. The second contract, involved here, executed entirely for the benefit of appellees, was new to appellant, and it relied upon its finance company for the proper interest figure, this company apparently using a recognized interest table.

3. The third contract entered into between the parties did not charge any excess interest.

4. A recognized public accountant, testifying on behalf of appellees, admitted that the figure was difficult to reach, and even his own calculations were slightly in error.

5. Evidently the exact figure has never been reached, since the parties stipulated that the excess interest amounted to “approximately $57.00 to $60.00.”

In accordance with what has been said, that portion of the decree holding the February, 1964, contract (by this court designated as Contract No. 2) usurious is reversed, and the cause is remanded to the Ashley County Chancery Court, with directions to enter a decree not inconsistent with this opinion.

      A 36 months term would have meant that the payments were $130.00 per week.

      Mann did not employ an attorney, but appeared pro se.


author: Ed. F. McFaddin, Justice.

text:
    Elsie B. Burton v. R. L. Burton
    5-3987
    407 S. W. 2d 738
    Opinion delivered November 7, 1966

      Thorp Thomas and Boy Finch Jr., for appellant.

      Ben M. McCray, for appellee.
   Ed. F. McFaddin, Justice.

A marriage of 24 years has culminated in this divorce suit. We deliberately forego a detailing of the evidence because on this appeal the appellant, Mrs. Burton, seeks a reversal on the grounds of condonation, claimed to have occurred after she filed her suit for divorce. She cites such eases as Harris v. Harris, 209 Ark. 528, 191 S. W. 2d 465; Buck v. Buck, 205 Ark. 918, 171 S. W. 2d 939; and McDougal v. McDougal, 205 Ark. 945, 171 S. W. 2d 942. The case was not tried or decided on the issue of condonation; and it does not appear to have been mentioned in the trial court except in a few lines of testimony, which the appellant has seized on for reversal here.

Most jurisdictions hold that condonation is a defense which generally has to be pleaded. 24 Am. Jur. 2d 642, “Divorce and Separation,” § 318. Bnt regardless of that matter, the fact remains that condonation, even if pleaded, would not have been a good defense in this case for the reason that we now give.

Mrs. Burton filed her suit for divorce on May 21, 1965. The claimed act of condonation is alleged to have occurred on July 4, 1965. It was not until August 10, 1965, that Mr. Burton filed his cross complaint for divorce. Mrs. Burton never filed any pleadings denying the cross complaint or answering any of the allegations. The case was tried before the Chancellor on September 16,1965, and resulted in a divorce decree in favor of Mr. Burton. Thus, even if there were any act of condonation (which is doubtful), nevertheless the divorce was granted on a cross complaint on a cause of action which occurred after the claimed condonation.

Even though the husband is prevailing on this appeal, we nevertheless tax the actual costs of this appeal against appellee.

Affirmed.


text:
    N. J. Henley et al v. W. L. Goggin et al
    5-4160
    407 S. W. 2d 732
    Opinion delivered November 7, 1966

      Thomas Bisele, for appellant.

      John Driver and Joe D. Villmes, for appellee.
   Ed. F. McFaddin, Justice.

This litigation necessitates a decision as to whether Constitutional Amendment No. 51 supersedes the provisions of Ark. Stat. Ann. § 3-1123 and § 3-1123.1 (Repl. 1956).

The appellants are “N. J. Henley, individually and as representative of the Members of the Republican Party, and also as a member of the Searcy County Board of Election Commissioners; W. N. Guthrie, individually and as County Clerk and Permanent Registrar for Searcy County; and Beal Sutterfield, individually and as Sheriff and Collector of Searcy County, Arkansas.” The appellees are “W. L. Goggin, individually and as Chairman of the Searcy County Board of Election Commissioners; C. H. Campbell, individually and as a member of the Searcy County Board of Election Commissioners: and Mrs. Howard (Donna) Stephenson.”

On October 8, 1966, by a majority vote, the County Board of Election Commissioners of Searcy County, proceeding under Ark. Stat. Ann. § 3-1123 and § 3-1123., appointed Mrs. Howard (Donna) Stephenson as “Custodian”1 for the applications for, the issuance of, and voting of, absentee ballots for the General Election of November 8, 1966. On October 13, 1966, the appellants filed this action in the Circuit Court of Searcy County, praying, mter alia, for a judgment that the said Ark. Stat. Ann. §§ 3-1123 and 3-1123.1 be declared to have been superseded by Constitutional Amendment No. 51, and also that the action of the Searcy County Board of Election Commissioners, in appointing Mrs. Stephenson as Custodian, be declared void. Trial was held in the Circuit Court on October 20, 1966, and resulted in a judgment holding valid the said sections and also the action of the County Board of Election Commissioners in appointing a custodian under said sections. This appeal followed.

The appeal was filed in this Court on October 25, 1966; and since it involved matters concerning the General Election to be held on November 8, 1966, we advanced the cause for immediate oral argument, hearing, and decision; and on October 31, 1966, we delivered the following per curiam:

“PER CURIAM. We hereby set aside — effective as of this date — the order of the Circuit Court approving the action of the County Election Commissioners in selecting a custodian to act under Ark. Stat. Ann. § 3-1123 and § 3-1123.1 (Repl. 1956), as these sections are in conflict with Amendment No. 51. The ballots of persons who have obtained absentee ballots before this date under the Circuit Court order shall be counted if otherwise found to be legal. And all absentee ballots received heretofore or hereafter by the said Custodian shall be forthwith delivered to the Permanent Registrar. An opinion will be delivered later.”

This is the opinion referred to. Before an election the provisions of election laws are mandatory, and after the election the provisions are directory. In Henderson v. Gladish, 198 Ark. 217, 128 S. W. 2d 257, we said: “All provisions of the election law are mandatory, if enforcement is sought before election in a direct proceeding for that purpose; ...” Here, the litigation is before the election, and if the appellants are correct they are entitled to have the determination of the question before the election. The provisions under which the majority of the Election Commissioners of Searcy County were proceeding are Ark. Stat. Ann. § 3-1123 and § 3-1123.1, and in their present form come to us from Act No. 42 of 1951. At that time (1951) our Constitution and laws provided for a poll tax receipt as a prerequisite for voting; but at the General Election in November 1964 the People of Arkansas adopted Amendment No. 51 to the Constitution, which outlawed the poll tax as a prerequisite for voting and provided for a system of permanent registration of voters. It is hornbook law that a Constitutional Amendment subsequently adopted will supersede any previous statute in conflict therewith. (National Prohibition Cases, 253 U. S. 350, 64 L. ed. 946, 40 S. Ct. 486. See also 50 Am. Jur. 546, “Statutes” § 540.) The germane provision of Amendment No. 51 relating to absentee voting is contained in Section 13(d) of said Amendment and reads as follows:

“(d) Absentee voting shall be conducted in the same manner as now provided under the laws of the State; provided, that the Permanent Registrar shall determine that the signature on the application for absentee ballot is identical with the signature appearing on the voter’s Affidavit of Registration before mailing or passing out an absentee ballot. The Permanent Registrar shall, upon permitting absentee voting in the manner hereinabove authorized, stamp in the first vacant and unused blank space in the Record of Voting Form the date of the forthcoming election and shall note thereafter the words, ‘absentee ballot’ ”

It is true that Amendment No. 51 did not expressly repeal Ark. Stat. Ann. §§ 3-1123 and 3-1123.1, and it is true that repeals by implication are not favored. (Faubus v. Miles, 237 Ark. 957, 377 S. W. 2d 601); but when the conflict between the statute and the Constitution is irreconciliable, then the statute must be held to be superseded. Here, we cannot fit the Legislative Enactment (§ 3-1123 and § 3-1123.1) into the provisions of the Constitutional Amendment. The Legislative Enactment says that the custodian “shall exercise all powers and duties concerning the applications for, the issuance of, and the voting of absentee ballots, required of the County Clerk. ...” Under Amendment No. 51 the County Clerk becomes the Permanent Registrar, and under the Constitutional provision previously quoted, the Permanent Registrar “shall determine that the signature on the application for absentee ballot is identical with the signature appearing on the voter’s Affidavit of Registration ... The Permanent Registrar shall... stamp in the first unused blank space in the Record of Voting Form the date of the forthcoming election, and shall note thereafter the words, ‘absentee ballot’.’-’

Now if the Board of Election Commissioners can appoint a custodian to have charge of all the applications and the issuance of absentee ballots, such custodian would be superseding the Permanent Registrar in the fulfilling of his constitutional duties. The custodian is authorized by statute to have the absentee ballots and issue them. The Record of- Voting Form mentioned in the Constitutional Amendment could not be in the custodian’s office and at the same time, in the office of the County Clerk as Permanent Registrar. The mandatory duty of the Permanent Registrar is to compare the signatures and to stamp certain information on the Record of Voting Form. The order of the County Board of Election Commissioners for the custodian to have charge of the applications and the issuance and the voting of absentee ballots is directly in conflict with the provisions of Amendment No. 51 in the particulars here mentioned.

We therefore hold that Amendment No. 51 repealed or superseded the provisions of Ark. Stat. Ann. § 3-1123 and § 3-1123.1. We heretofore issued and now reaffirm the per curiam made in this case; and the cause is remanded with directions to set aside the judgment previously entered and to enter a judgment in conformity with this opinion. An immediate mandate is issued.

       We will hereinafter refer to Mrs. Stephenson in such capacity as “Custodian,” since this is the designation so used by appellees.

      Except, of course, so-called “Maiden Voters,” and possibly a few other rare instances.

      The 1965 Arkansas General Assembly enacted several laws recognizing Amendment No. 51. Some of these are Acts 3, 126, 127, 187, and 417 of the Regular Session, and Acts 51, 56, and 57 of the First Extraordinary Session.


author: George Rose Smith, Justice.

text:
    Life & Casualty Ins. Co. of Tenn. et al v. Faber Padgett et ux
    5-3921
    407 S. W. 2d 728
    Opinion delivered November 7, 1966

      George F. Hartje Jr. and Chowning, Mitchell, Hamilton & Burrow and Wright, Lindsey & Jennings, for appellants.

      Guy H. Jones, for appellees.
   George Rose Smith, Justice.

Faber Padgett and his wife brought this action against the appellants, Life & Casualty Insurance Company of Tennessee and its agent, A. J. Skinner, to recover damages for injuries sustained when Skinner assaulted and beat Padgett with a heavy stick of wood. The jury’s verdict, against both defendants, awarded Pag'dett $15,000 as actual damages and $35,000 as punitive damages. Mrs. Padgett’s cause of action is no longer in issue. The verdict was against her claim, and she has not appealed.

The first question is whether there is substantial evidence to support a finding that Skinner’s tortious assault was committed in the prosecution of his employer’s business.

The testimony of Mr. and Mrs. Padgett is so similar that we need not narrate it separately. On the afternoon of February 22, 1965, Skinner called at the Padgetts’ home, a few miles from Conway, to collect premiums upon policies issued to the Padgetts. A dispute arose about whether the Padgetts were behind in the payment of one weekly premium. Skinner attempted to convince the couple, by his collection records, that there was a delinquency, but the Padgetts insisted that their payments were current. Finally Padgett said that he would write to the company and let them straighten it out. Skinner .stamped the floor with anger and said: “Well, you do that.”

Two or three times during the altercation Padgett asked Skinner to leave the house. Eventually Skinner did leave, closing the front screen door behind him as he stepped from the living room to the porch. At that point Padgett said: “Don’t come back to my house any more, Mr. Skinner. If that’s the kind of a man you are, I don’t want to have any dealings with you whatsoever.” Skinner answered: “There ain’t nobody going to tell me what I can do and what I can’t do.” With that Skinner put down his satchel of papers, seized a heavy piece of firewood, re-entered the house, and struck Padgett repeatedly about the head. That Padgett suffered serious injuries is not denied.

Counsel for Life & Casualty, in arguing that it was entitled to a directed verdict, cite several out-of-state decisions holding that an employer is not liable for his employee’s intentional tort unless the nature of the employment is such as to make the use of force not unlikely. That principle seems really to be a liberalization of the law’s bygone reluctance to hold a master liable for his servant’s intentional torts. “There was once a great deal of conceptual and procedural difficulty in the way of holding the master for the deliberate and other willful wrongs of his servant in any case where such acts were not specifically commanded. . . . But all this is now a matter of history.” Harper & James, Torts, § 26.9 (1956). Prosser takes much the same view, pointing out that the tendency of the modern cases is to hold the employer liable when, as here, the employee loses his temper and attacks the plaintiff during a quarrel arising out of the employment. Prosser, Torts, p. 478 (3d ed., 1964).

We think the law as it stands today is fairly summarized in the Restatement of Torts, where it is said that the master is subject to liability for his servant’s intentional tort “if the act was not unexpectable in view of the duties of the servant.” Restatement, Torts (2d), § 245 (1958). For a quarrel to arise in the course of an employee’s attempt to collect money is certainly “not unexpectable.” The jury might well have concluded that disputes over money matters are of such common occurrence that Skinner’s conduct could not reasonably be said to be unforeseeable.

Our cases have not been out of step with the trend elsewhere. Not infrequently, in cases similar to this one, our main concern has been whether a dispute arising out of the employment was continuous up to the time of the intentional wrong. Such a case was Bryeans v. Chicago Mill & Lbr. Co., 132 Ark. 282, 200 S. W. 1004 (1918), where we said: “If the quarrel which was started by Breysacre in telling Bryeans that he would have to stop bothering the men in the shop was continuous to the time of the killing, and the killing grew out of such quarrel, then Breysacre at the time of the killing was acting in the scope of his employment. But if the quarrel which was thus started had ceased for an appreciable interval, however short, and was then renewed through the fault of Bryeans and the killing was the result of the quarrel thus renewed by Bryeans, then Breysacre at the time of the killing was not acting within the scope of his authority.” We adhered to that view in American Ry. Express Co. v. Mackley, 148 Ark. 227, 230 S. W. 598 (1921), although there we found from the undisputed proof that there had been an interruption of the quarrel and that the employee renewed it the next day for personal reasons having nothing to do with his employment.

In the present case we think it clear that the jury might justifiably have found that the dispute arose out of Skinner’s employment and continued to its conclusion without interruption. Indeed, that was the purport of Skinner’s own testimony, who insisted that he acted merely in self-defense, Padgett being the aggressor.

The remaining questions have to do with the award of punitive damages. The appellants contend that under our holding in Dunaway v. Troutt, 232 Ark. 615, 339 S. W. 2d 613 (1960), the plaintiffs waived their claim to punitive damages by suing two defendants and that the trial court erred in permitting the plaintiffs to introduce proof of the financial worth of both defendants.

In the Dunaway case we relied upon Washington Gas Light Co.,v. Lansden, 172 U. S. 534 (1898), for our conclusion that a plaintiff waives his right to punitive damages simply by asserting such a claim against two or more defendants. In fact, the Lansden case did not go that far. There the court merely approved the majority rule that one who sues two or more defendants for punitive damages waives his right to prove the financial condition of any one of them. The conrt went on to say: “This rule does not prevent the recovery of punitive damages in all cases where several defendants are joined.” See also Note, 15 Ark. L. Eev. 208 (1961).

We think the law was correctly stated in the Lansden case and that we misconstrued that holding- in Dunaway v. Troutt. In the court below the Padgetts were permitted to prove that Life & Casualty had a net worth of about sixty-one million dollars and that Skinner had a net worth of about one thousand dollars. Under the Lansden case the admission of that evidence was reversible error.

Padgett’s attorney argues that regardless of the rule in the case of independent tortfeasors proof of financial worth should be allowed when the defendants are employer and employee. That argument is not sound. The reason for the rule — that one defendant should not be punished on the basis of another defendant’s wealth —applies just as well to employers and employees as to others not standing in that relation. Hence the rule, as one might expect, is applied in master-servant cases. Chicago City Ry. v. Henry, 62 Ill. 142 (1871); Dawes v. Starrett, 336 Mo. 879, 82 S. W. 2d 43 (1935); McAllister v. Kimberly-Clark Co., 169 Wis. 473, 173 N. W. 216 (1919).

Does the erroneous admission of the testimony about the appellants’ financial means affect the judgment for actual damages as well? In law cases two issues may be so interwoven that an error with respect to one requires a retrial of the whole case. Mowery v. House, 234 Ark. 878, 355 S. W. 2d 275 (1962). That is the situation here with reference to the compensatory and exemplary damages. It is hardly possible that the jury did not take each into consideration in fixing the other. Furthermore, the inadmissible proof of the defendants ’ worth may have influenced the jury in its assessment of compensatory damages. The only way in which we can with certainty protect the appellants from the possibility of prejudice is to grant a new trial upon all issues.

Beversed.


author: G-eorge Bose Smith, Justice.

text:
    Fred Alvin Beeler v. James Walters
    5-3974
    407 S. W. 2d 739
    Opinion delivered November 7, 1966

      Wright, Lindsey & Jennings and William B. Over-ton, for appellant.

      Acchione & King, for appellee.
   G-eorge Bose Smith, Justice.

This is an action for personal injuries suffered by the appellee in a traffic accident in downtown Little Bock. The jury’s verdict was for the defendant, but the trial judge set the verdict aside and ordered a new trial. This appeal is from that order, as the statute permits. Ark. Stat. Ann. § 27-2101 (Supp. 1965).

In a case of this kind we sustain the trial court’s order unless the verdict is so clearly supported by the preponderance of the evidence as to indicate an abuse of discretion on the part of the trial judge. Koonce v. Owens, 236 Ark. 379, 366 S. W. 2d 196 (1963). In this instance we find no abuse of discretion.

In the court below there was no question about the defendant’s fault. Walters was seated as a passenger in a stationary car when it was struck from behind by Beeler’s vehicle. The substantial issue for the jury was whether Walters’s asserted injuries were real or feigned.

Walters testified that he was shaken up by the collision, that his knee struck the dashboard, and that he developed stiffness in his neck and in his back. Two days after the accident he consulted Dr. Murphy, who prescribed heat therapy and a supporting collar for Walters’s neck, which he wore for about a week. Six months after the accident Walters’s knee had become so painful that an operation was necessary.

Walter’s testimony was by no means uncorroborated. The patrolman who investigated the collision at the scene stated that Walters appeared to be shaken up. Dr. Murphy testified that he found no objective signs of an injury to Walters’s neck or back, but he accepted his patient’s complaints and prescribed treatment accordingly. Dr. Murphy explained that the knee operation was for the removal of a cyst that antedated the accident and might have been aggravated by it.

At the trial the principal issue was unquestionably that of credibility. The trial judge, who hears the testimony as it is given, is in a much better position than we are to determine where the weight of the evidence lies. Here we cannot say that his determination is contrary to the preponderance of the testimony.

Affirmed.

Amsler, J., not participating.


author: Paul Ward, Justice.

text:
    Kennie Lewis et ux v. Firestone Tire & Rubber Co.
    5-3997
    407 S. W. 2d 750
    Opinion delivered November 7, 1966

      Bernard Whetstone, for appellant.

      Joe D. Woodward and Mike Kinard, for appellee.
   Paul Ward, Justice.

The question presented on this appeal is whether, under certain circumstances, the trial court has the discretion to extend the time for a garnishee to file an answer.

Facts. On September 28, 1965 Mr. and Mrs. Lewis (appellants) procured a judgment in circuit court against one Robert Tribble in the total sum of $6,000. The judgment was filed for record October 11, 1965. On October 12, 1965 appellants caused a Writ of Garnishment to issue against the Firestone Tire and Rubber Company, Inc. (appellee). At the same time appellants filed “Allegations and Interrogatories” directed to appellee, wherein it was alleged that appellee was indebted to said Tribble in the sum of $6,500, and appellee was asked to state what amount, if any, it owed Tribble. Pursuant to the above, a summons was issued by the clerk to the sheriff commanding him to summons appellee to appear in twenty days after service to answer the interrogatories. The Writ was served on appellee October 19, 1965, but it was not until November 23, 1965 (thirty four days after service) that appellee filed an answer, stating it owed Tribble only $128.05.

On January 3, 1966 appellants filed a Motion to set aside the answer and to enter a default judgment against appellee in the sum of $6,000 (plus interest) in favor of appellants. The trial court overruled the said motion, but entered judgment against appellee and in favor of appellants in the sum of $128.05 (plus interest). In doing so the court made this comment:

“I think the Court’s got a perfect right, within the Court’s own discretion, to enlarge the time to plead here and if there was any default judgment to set it aside for good cause. Good cause certainly exists when these people only owed that man $128. and you want them to pay $6,000.”

From the above order and judgment appellants prosecute this appeal and, for a reversal, rely solely on the following Point:

“The court was in error in holding that good cause was shown (as contemplated by the statute) for the delay in answering (writ of garnishment).”

In support of the above Point appellants rely solely on, and quote extensively from, Karoley v. A. R. & T. Electronics, Inc., 235 Ark. 609, 363 S. W. 2d 120. In that case the garnishee failed to file its answer in due time and a default judgment was entered against it. After the term of court had lapsed appellee filed a Motion to set aside the default judgment. This Motion was denied by the trial court and, on appeal, we sustained the trial court. In doing so we said the default judgment was entered against the garnishee as provided by Ark. Stat. Ann. § 31-512 (Repl. 1962). Then we went on to point out that the garnishee “. . . did not comply with the statute applicable to setting aside a judgment after the lapse of the term (§ 29-506 et seq. Ark. Stats.)”.

We are unable to agree with appellants’ contention that the Karoley case calls for a reversal of the judgment of the trial court in the ease under consideration here.

First, it is pointed out that here the term of court had not lapsed and also that no default judgment had been rendered against the garnishee — which was not the situation in the Karoley case. In fact it appears to be conceded by appellants that the trial court had the power and discretion to refuse to enter a default judgment against the garnishee and to give it further time to answer. Consequently the vital contention of appellants is that no “good cause was shown” for the trial court’s action. We are not in agreement with the latter contention.

The writ of garnishment was served on appellee’s agent, Joseph H. Street (the Industrial Relations Manager of appellee) who, it appears, was not versed in legal procedure; Street made an effort (though, a belated one) to find out what he should do; he called the circuit clerk (whose name was signed to the Writ) for advice; following that Street wrote a letter to the clerk, dated November 22, 1965, stating:

“We are holding three (3) checks totaling $128.05 of foremer employee Robert D. Tribble, against garnishment No. 6043.
“Please notify us as to the disposition of these checks and of the garnishment.”

In view of the facts set forth above, and in view of the further facts that (a) there is no contention appellee did not act in good faith, (b) there is no contention appellee actually owes Tribble more than $128.05, and (e) it would be unjust to force appellee to pay out more than $6,000 to discharge a debt of only $128.05, we are unwilling to hold no “good cause was shown” for the action taken by the trial court. We find an abundance of legal support for the result we have reached. See: Wilson v. Phillips, 5 Ark. 183 (pp 185-186); Pate v. Bryan, 177 Ark. 79 (p. 82), 7 S. W. 2d 776; 38 C. J. S. — Garnishment, § 176; Aiken v. Smith, (G-a.), 23 S. E. 2nd 584, and; 6 Am. Jur. 2d — Attachment and Garnishment— § 348.

Affirmed.


author: Osro Cobb, Justice.

text:
    Donald R. Webb et al v. State Farm Mutual Ins. Co.
    5-3999
    407 S. W. 2d 740
    Opinion delivered November 7, 1966

      Brockman & Brockman, for appellants'.

      Reinberger, Eilbott, Smith & Staten, for appellee.
   Osro Cobb, Justice.

Appellants, Donald R. Webb and Delma L. Webb, brothers, were joint operators of a gasoline service station in Pine Bluff, and both resided with their parents.

Donald R. Webb owned a 1957 Chevrolet automobile which was insured for both liability and collision coverage by appellee. The policy contract provided the named insured with additional like coverage while driving an automobile not owned by him as a temporary substitute automobile as same was defined in the policy.

Delma L. Webb was the owner of an uninsured 1962 Volkswagen. In October, 1963, Donald R. Webb loaned Delma L. Webb his Chevrolet to drive to and from Memphis, Tennessee to attend a General Motors training school. While his car was on loan, Donald repaired his brother’s disabled Volkswagen and used it for general everyday transportation.

On October 25, 1963, Donald R. Webb was driving the Volkswagen when he swerved to miss a child in the street and ran into a ditch, overturning the automobile and causing considerable damage. On the night of the accident, Donald R. Webb notified appellee’s local insurance agent of the accident. On October 28, 1963, appellant Donald R. Webb signed a claims report and a non-waiver clause in the presence of appellee’s agent.

Appellants contended below that the provisions of the insurance policy entitled them to recover the amount of the damage to the Volkswagen.

The trial judge, sitting as a jury, found that the Volkswagen as being operated at the time of the accident did not meet the policy requirements to be covered as a non-owned automobile, and that it did not come within the policy definition of a temporary substitute automobile. Judgment was entered in favor of appellee. From this adverse decision, appellants bring this appeal.

POINT I

AMBIGUITY OF THE POLICY SHOULD BE CONSTRUED IN FAVOR OF THE INSURED.

Appellants contend that the language of the policy relied upon as to coverage of the insured while driving an automobile not owned by him is not clear and concise, but is ambiguous and that the ambiguity should be construed and resolved in favor of the insured.

It is well settled that where language used in an insurance policy is ambiguous, it should be construed in favor of the insured. Aetna Life Insurance Company v. Spencer, 182 Ark. 496, 32 S. W. 2d 310 (1930).

It necessarily follows that the announced rule stated above is applicable where the ambiguity is found, in an exclusionary clause as to policy coverage. State Farm Mutual Auto Insurance Company v. Baker, 239 Ark. 298, 388 S. W. 2d 920 (1965).

It should also be noted that we have consistently followed the rule that contracts of insurance should receive reasonable constructions so as to effectuate the purposes for which they are made. Milwaukee Insurance Company v. Wade, 238 Ark. 565, 383 S. W. 2d 105 (1964).

We quote the provisions of the instant policy which relate to coverage of the insured while driving a non-owned automobile:

“Non-owned automobile — means an automobile or trailer not
(i) Owned by
“ (ii) registered in the name of, or
“(iii) furnished or available for the frequent or regular use of the named insured, his spouse, or any relative of either residing in the same household, other than a temporary substitute automobile.” (emphasis added) ■

The Supreme Court of Pennsylvania in the case of Carr v. Home Indemnity Company, 404 Pa. 27, 170 A. 2d 588 (1961) had before it for review the question of alleged ambiguity in a policy of insurance virtually identical in verbiage with the policy now before us. We quote from that opinion: ^

“Beading the policy as a whole we find that the term ‘non-owned automobile’ is clearly defined in the policy as not including an automobile driven by the insured but owned by a relative, and said term is not ambiguous. If we were to hold otherwise we would be rewriting the insurance policy for the parties and this we can not do. Holliday v. St. Paul Mercury Indemnity Company, 153 Pa. Super. 59 [33 A. 2d 449.]”

We also quote an interesting footnote from the Pennsylvania case:

“Followed to its logical conclusion, this contention would claim coverage under one policy of all automobiles regularly used by the named insured and a family -with four automobiles would require only one policy for which a one-automobile policy premium was paid, an absurd conclusion.”

There is no dispute as to appellants being brothers and members of the same household; nor is there any dispute as to the fact that the insured appellant did not own the Volkswagen, same belonging to his brother. The policy clearly limited its coverage as to nonowned automobiles to those not owned by or registered in the name of another member of the same household,- with the single exception of use as a temporary substitute vehicle, as defined in the policy.

We therefore find that the non-owned automobile provisions of the insurance policy are not ambiguous, and that there is no merit in appellants ’ contentions under their Point No. 1. See case authorities cited in 87 A. L: B. 2d 937.

POINT II

THE VOLKSWAGEN WAS A TEMPORARY SUBSTITUTE AUTOMOBILE.

Appellants contend that the Volkswagen was covered under the policy by reason of its use by the named insured as a temporary substitute vehicle. A temporary substitute automobile as contemplated and defined in the policy is one described as follows:

“Temporary substitute automobile — means an automobile not owned by the insured or his spouse while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.” (emphasis added)

The quoted section of the policy provides a specifically limited coverage as to a non-owned temporary substitute automobile when the automobile described in the policy is withdrawn from normal use by the insured because of its breakdown, repair, servicing, loss or destruction. This language is clear and emphatic. If the insured Chevrolet had broken down, requiring repairs, the insured would have been covered while driving the Volkswagen as a temporary substitute automobile. In this case, however, it was not the insured Chevrolet that became disabled. Indeed the proof shows that the Chevrolet was used on the trip to Memphis because the Volkswagen was not in good operating condition.

Both appellants testified that the insured Chevrolet was in sufficient running order to be driven from Pine Bluff to Memphis and back at least two times while Donald R. Webb used the Volkswagen after making some repairs to it.

Donald R. Webb testified:

11 My car, the Chevrolet, was in Memphis and I was driving the Volkswagen because my brother was attending school in Memphis and his automobile had broken down and he was using my car (the 1957 Chevrolet) to go back and forth to school. * * * He (Delma Webb) was driving my car because his wouldn’t run, and the Chevrolet was running all right. ’ ’

The Chevrolet had not been withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction. Therefore, the Volkswagen could not qualify as a temporary substitute automobile. Savage v. Spicer, 235 Ark. 946, 362 S. W. 2d 668 (1962), and Ransom v. Fidelity Casualty Company of New York, 250 N. C. 60, 108 S. E. 2d 22 (1959).

The trial court was correct in its finding that the Volkswagen did not qualify as a substitute automobile as defined in the policy, and therefore we find no merit in appellants’ contentions under Point No. II.

POINT III

THE APPELLEE IS ESTOPPED TO DENY LIABILITY UNDER THE TERMS OF THE POLICY.

Appellants assert that through the actions of appellee’s agent it is estopped to deny liability under the terms of the contract. Appellant, Donald R. Webb, contacted the agent of appellee on the night of the accident and reported the collision; at which time, the agent informed appellant that the Volkswagen might be covered by the policy. Three days later appellant signed a claims report and a non-waiver clause that authorized appellee to investigate the accident and yet not waive any of its rights to deny any claim arising out of the accident and the contract of insurance. Although appellant testified that he did not know the legal significance of the statement, we find from appellant’s own testimony that he did understand the language used in the non-waiver clause.

In addition, Ark. Stat. Ann. § 66-3226 (Repl. 1966) protects the insurer during its investigatory work and processing of claims prior to permitting or denying a claim under the policy:

“66-3226. Claims administration not waiver.— Without limitation of any right or defense of an insurer otherwise, none of the following acts by or on behalf of an insurer shall be deemed to constitute a waiver of any provision of a policy or of any defense of the insurer thereunder:
“(1) Acknowledgment of the receipt of notice of loss or claim under the policy.
“(2) Furnishing forms for reporting a loss or claim, for giving information relative thereto, or for making proof of loss, or receiving or acknowledging receipt of any such forms or proofs completed or uncompleted.
“(3) Investigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim except that such investigating and negotiations may constitute a waiver of proof of loss requirements. [Acts 1959, No. 148 § 293, p. 418.]”

The trial court sitting as a jury found as a matter of fact that appellee had not waived its right to deny the claim under the insurance contract and, as stated in Mid-South Insurance v. Dellinger, 239 Ark. 169, 388 S. W. 2d 6 (1965):

1 ‘ The findings of a trial court sitting as a jury have the verity and binding effect of a jury verdict and are conclusive of issues of fact * * * therefore, if there is any substantial evidence to support the finding upon which the judgment is based, we must affirm. ’ ’

We find no evidence that appellant was misled or damaged by any statement made by appellee. At no time before the true facts were known to appellee did it admit or deny coverage under the policy.

There was substantial evidence to support the lower court’s finding as to the question of estoppel. We find no merit in appellants’ Point No. III.

Having found no merit in any of appellants’ contentions, we affirm the decision.

Affirmed.


text:
    Melvin Gordon Barner, etc. v. M. I. Barner et al
    5-4027
    407 S. W. 2d 747
    Opinion delivered November 7, 1966

      Streett & Plunkett, for appellant.

      L. Weems Trussell, for appellee.
   INTRODUCTORY FACTS:

Osro Cobb, Justice.

This appeal involves a dispute between claimants to the proceeds of insurance benefits which became due following a total loss of a family residence by fire.

In February, 1960, appellee and his wife at that time, Mary Barner, executed their separate warranty deeds conveying a certain parcel of land with the family residence thereon to their son, Melvin Gordon Barner, then approximately four years of age. The record in this case does not indicate that there was any insurance on the residence at the time of the deeds, nor did the deeds contain any language purporting to assume any obligation with reference to the carrying of any insurance on the property. Furthermore, the deed of appellee expressly reserved a life tenancy, use and control of the property.

It appears from this record that appellee and Mary Barner were subsequently divorced, with the mother taking custody of their young son. Appellee remarried and continued to reside in the same residence.

On February 19, 1964 appellee purchased an insurance policy providing three years coverage as to fire damages to the residence in the principal sum of $8,-000.00. On April 3, 1965 the residence was totally destroyed by fire.

Appellee made seasonable demand upon the insurance company to settle the claim. The insurance company, while conceding its policy obligation to pay the loss, declined to make settlement with appellee for the stated reason that there was uncertainty as to the legal claimant or claimants to the funds. Thereafter, appellee brought suit against the insurance company. The insurance company, instead of paying the funds represented by the loss into the registry of the court, filed an answer and cross-complaint making Melvin Gordon Barner a third party defendant, upon the allegation that he was a necessary party to the action. Subsequently, Mary Barner filed an intervention in her capacity as natural guardian and next friend on behalf of Melvin Gordon Barner, contending that intervenor was a necessary party and that the court should determine the respective value of the life estate interest of appellee in the funds due from the insurance company, and that the court should enter judgment directing legal and equitable pro rata payment of said funds between appellee and the intervenor. The intervention alleged an equitable lien on the funds and the intervenor asked the court to transfer the action to equity.

Appellee moved to strike all of the pleadings relating to the assertion of any claim to the proceeds of the insurance loss by Melvin Gordon Barner. Following hearing, the court sustained appellee’s motion to strike and entered judgment solely for appellee in the sum of $8,000.00, plus statutory penalties and attorney’s fee. The insurance company did not prosecute an appeal from the judgment of the trial court.

The case therefore reaches us for appellate review solely upon the contention that Melvin Gordon Barner had a legal right to some part or all of the insurance funds paid as a result of the fire. ■

Appellant insists that his interest' in the proceeds of the insurance policy is established by the fact that appellee, M. I. Barner, as life tenant of the insured property, held the position of a fiduciary to appellant, as the remainderman of the property. On virtually identical fact situations we have held to the contrary. In Jackson v. Jackson, 211 Ark. 547, 201 S. W. 2d 218 (1947), we quoted with approval from Harrison v. Pepper, 166 Mass. 288, 44 N. E. 222, as follows:

“It is plain that the plaintiff is not entitled to recover unless she has some claim upon the funds in the hands of the defendant. In the absence of anything that requires it in the instrument creating the estate, or of any agreement to that effect on the part of the life tenant, we think that the life tenant is not bound to keep the premises insured for the benefit of the remainderman. Each can insure his own interest, but, in the absence of any stipulation or agreement, neither has any claim upon the proceeds of the other’s policy, any more than in the case of mortgagor and mortgagee, or lessor and lessee, or vendor and vendee. . . . The contract of insurance is a personal contract, and inures to the benefit of the party with whom it is made, and by whom the premiums are paid.”

In the Jackson case, we also quoted with approval 33 Am. Jur., Life Estates, Remainders, etc., § 332 p. 838, as follows:

“It is clearly the general rule that where a legal life tenant insures the property in his own name and for his own benefit and pays the premiums from his own funds, he is, at least in the absence of a fiduciary relationship between him and the remainderman existing apart from the nature and incidents of the tenancy itself, or of an agreement between him and the remainderman as to which of them shall procure and maintain insurance, entitled to the proceeds of the insurance upon a loss; and the fact that the insurance was for the whole value of the fee is not generally regarded as affecting the right of the life tenant to the whole amount of the proceeds.”

We have consistently followed the rule announced in the Jackson case. See Coleman v. Gardner, 231 Ark. 521, 330 S. W. 2d 954 (1960), and Brown v. Brown, 233 Ark. 422, 345 S. W. 2d 27 (1961).

In the instant case, appellant did not show or plead that there was any agreement or stipulation that would produce a fiduciary relationship. Furthermore, when the mother took custody of Melvin Gordon Barner she became the sole natural guardian of his person and estate. Ark. Stat. Ann. § 57-646 (1965 Supp).

We therefore have concluded that the trial court properly determined that appellant had no interest in the proceeds of the insurance policy and properly granted appellee’s motion to strike the intervenor’s -.claim thereto.

Affirmed.


author: Guy Amsler, Justice.

text:
    Christine Byrd v. Lowell Byrd
    5-3946
    407 S. W. 2d 731
    Opinion delivered November 7, 1966

      J. B. Milham, for appellant.
    No brief filed for appellee.
   Guy Amsler, Justice.

This controversy is a sequel to prior unconsummated matrimonial litigation between the parties. Appellant (wife) and appellee (husband) were married in 1941. They have four children. The oldest (Edward) was married and not living with his parents at the time final decree was entered on January 31, 1966. Arlene was 17 in September of 1966. Frances is 14 (she is a cripple confined to a wheel chair) and the youngest son will be 11 in February of 1967.

In 1963 appellant was permanently injured as a result of falling from a wheel chair. She and appellee received damages in the sum of $37,000.00 as a result of the incident. After payment of hospital bills, medical expense and attorney’s fees the remainder was used for making the down payment on a house in Bryant, Arkansas, buying furniture, constructing an additional room to the house, buying two automobiles, a boat, trailer and outboard motor.

The marital relation between the parties gradually deteriorated subsequent to 1963 and on September 25, 1965, appellee filed suit against appellant seeking a divorce, custody of the children and possession of the house with all furniture and household goods.

Appellant counterclaimed and prayed for separate maintenance, custody of the children, possession of the house with its furniture and that appellee be required to “carry proper” medical insurance on her.

On September 30, 1965, appellant (defendant below) was awarded custody of Frances (the crippled daughter) and appellee was directed to pay $175.00 monthly into the court registry for the benefit of appellant and Frances. On November 2, 1965, appellant entered the Arkansas Baptist Hospital for treatment of a hip injury she received in a fall. She remained there for several weeks. On the 3rd of December, appellant still being in the hospital, the court placed Frances in temporary custody of appellee and ordered support and alimony payments for the little girl and appellant discontinued pending a change in conditions and further orders of the court.

In January of 1966 the chancellor decreed that appellee should have a divorce; should have custody of the three minor children (Arlene, Frances and Phillip) with reasonable visitation privileges to appellant; that he should have possession of the home and furnishings (he to make the monthly payments due thereon) until the youngest child reached his majority (about 11 years); that $50.00 per month should be deposited in the court registry for the use of appellant “until such time as she may remarry” and that he should pay appellant’s attorney $100.00. Division of property held by the entireties was postponed until the youngest child attains majority. This appeal ensued.

Appellee is a foreman for ALCOA with an income of over $6,000.00 annually. Appellant is a hopeless cripple who will be able to do nothing but light housekeeping in the future. It is our conclusion that the alimony awarded appellant is wholly inadequate and it is hereby increased to $150.00 per month.

The proof in this case amply supports the granting of a divorce to appellee. It was in evidence that the children perform most of the housekeeping work and that there is ill-feeling between appellant and the older daughter. In fact they are barely on speaking terms while appellee and the children live harmoniously.

It would serve no useful purpose for us to relate in detail all the unfortunate circumstances on which the chancellor based his decree. Our feeling is that, under present conditions, his conclusions were in the best interest of the parties concerned and especially the minor children. We are not unmindful of the fact that the trial court has continuing jurisdiction for making any future adjustments that may be proven to be advisable.

The attorney for appellant is allowed an additional fee of $150.00, to be paid by appellee, for his services to date. Appellee is to pay all costs.

As modified the decree is affirmed.


author: Hugh M. Bland, Justice.

text:
    Norman Hogan et al v. Clara Belle Hogan
    5-3971
    407 S. W. 2d 735
    Opinion delivered November 7, 1966

      Guy H. Jones, for appellant.

      Lynn R. McClinton, for appellee.
   Hugh M. Bland, Justice.

This is an action to set aside a deed from Dan Hogan to his daughter, Danna Fleming, conveying 38 acres, more or less, in Faulkner County, Arkansas.

Dan Hogan died testate in Faulkner County, Arkansas on February 3,1965 survived by appellee, his widow, and by several children of prior marriages, including appellants. At the time of his death and for several years prior thereto, he held title to and was in possession of the 38 acres in dispute which was his home plaee. The deed sought to be cancelled was, according to appellants ’ testimony, executed on December 16, 1963 at Greenville, Mississippi and mailed to her in Texas with instructions not to mention the conveyance or record the deed. Appellee knew nothing about the deed and it was not recorded until after Dan Hogan’s death. Appellant Danna Fleming contends that she kept the deed until about three months after Dan Hogan’s death then sent it to her brother to have it recorded. When it was returned to her she put it on the refrigerator and possibly one of her children cut it up or it got into the washing machine.

Appellee claims that she was the residuary devisee under the will of Dan Hogan which was admitted to probate on April 30, 1965. Appellee was housekeeper for Dan Hogan for approximately 11 years before they were married on January 16, 1964. By amendment to her complaint she complained that Dan Hogan had promised her that if she would take care of him for the rest of his life that he would will to her the 38 acres involved in this action. The will of Dan Hogan was executed on February 4, 1964. The deed in question was recorded on April 8, 1965.

On August 23, 1965 appellant Norman Hogan, by use of force and firearms, ran the appellee away from the premises, moved in and remained in possession of the property until the date of the decree in this ease.

Trial was held on November 18, 1965 and the court held that the deed from Dan Hogan to appellant Danna Fleming be cancelled, set aside and held for naught and that the appellee be in possession of said property, retaining jurisdiction to determine rental value of the land from August 23, 1965 until date of the decree. From that judgment comes this appeal and appellants rely upon one point: That the trial court erred in cancelling and setting aside the deed from Dan Hogan, made, executed and delivered on December 16, 1963 to Danna Fleming, his daughter.

Even if we could believe the doubtful circumstances surrounding the execution, delivery, recording and loss of the deed from Dan Hogan to appellant Danna Fleming, there would still be only a question of law involved in this case. That question is whether appellee is an innocent purchaser for value of the premises as devisee under the will of Dan Hogan, deceased. We find no conflict in the evidence as to whether or not appellee had knowledge of the conveyance. Ark. Stat. Ann. § 16-115 (Repl. 1965) provides:

“Unrecorded instruments invalid against subsequent purchaser. — No deed, bond, or instrument of writing, for the conveyance of any real estate, or by which the title thereto may be affected in law or equity, hereafter made or executed, shall he good or valid against a subsequent purchaser of such real estate for a valuable consideration, without actual notice thereof; or against any creditor of the person executing such deed, bond, or instrument, obtaining a judgment, or decree (which by law may be a lien upon such real estate), unless such deed, bond, or instrument, duly executed and acknowledged, or proved, as is or may be required by law, shall be filed for record in the office of the clerk and ex officio recorder of the county where such real estate may be situated.”

In Harrison v. Harrison, 198 Ark. 64, 127 S. W. 2d 270, we said:

‘ ‘ The law is well settled in this state that if, shortly before marriage, the future husband conveys away his real estate, without the knowledge of his betrothed, the courts will set aside such conveyance. This court said in the case of Roberts v. Roberts, Admx., 131 Ark. 90, 96, 198 S. W. 697; ‘In 9 Ruling Case Law, page 591, it was said: “That the wife’s right of dower is a substantial property right, entitled to protection by the courts, is perhaps most strikingly shown in action by her to set aside conveyances made by the husband for the purpose of defeating her expectation (though not yet vested even as in inchoate right) of dower. If shortly before a marriage, the future husband conveys away his real estate without consideration, and without the consent or knowledge of his betrothed, with the purpose and result of unfairly depriving her of dower, the courts will set aside the conveyance as a fraud upon her rights; and even the fact that it was made for a valuable consideration will not save it, if the grantee participated in the intent to defraud the wife.” Numerous cases are cited which support the test.
In our recent case of West v. West, 120 Ark. 500, 179 S. W. 1017, we stated our own views on this subject in the following language: “This brings us to a consideration of the law governing cases of this character. The general rule is that if a man or woman convey away his or her property for the purpose of depriving the intended husband or wife of the legal rights and benefits arising from such marriage, equity will avoid such conveyance or compel the person taking it to hold the property in trust for or subject to the rights of the defrauded husband or wife. Perry on Trusts and Trustees, (6th Ed.) vol. 1, § 213; Bishop on The Law of Married Women, vol. 2, § 350; Smith v. Smith, 2 Halstead Ch. (N. J.) 515; Leach v. Duvall, 8 Bush. (Ky.) 201; Dearmond v. Dearmond, 10 Ind. 191; Collins v. Collins, 98 Md. 473, 57 Atl. 597, 103 Am. St. Rep. 408, (1 Ann. Cas. 856) and case note”.’

This rule has recently been approved in the case of O’Connor v. Patton, 171 Ark. 626, 286 S. W. 822.”

The evidence is undisputed that the appellee performed her part of the bargain and took care of Dan Hogan until his death.

In this case we are not bound by the rule that a parol contract to execute a will may be enforced in equity only where the agreement is established by clear, cogent and convincing testimony because in this case there was an executed contract by both Dan Hogan and appellee which will be specifically enforced in equity against the prior unrecorded deed with the deceased remaining in possession of the property and with the appellee having no knowledge of the unrecorded deed. This places the appellee in the position of being an innocent purchaser for value in possession and with title to her vested by the will, relating back to the death of Dan Hogan and prior to the recording of the deed. Long v. Langsdale, 56 Ark. 239, 19 S. W. 603; Halbrook v. Lewis, 204 Ark. 579, 163 S. W. 2d 171.

The decree of the chancellor is affirmed with jurisdiction retained in the chancery court for the purpose of determining the amount of rent due from appellants to appellee.

Affirmed.


text:
    City of Little Rock et al v. Mr. and Mrs. John A. Parker et al
    5-4005
    407 S.W. 2d 921
    Opinion delivered November 14, 1966
    [Rehearing- denied December 12, 1966.]

      Joseph O. Kemp and Perry V. Whitmore, for appellants.

      Butler, Greene & Byrd, for appellees.
   Carleton Harris, Chief Justice.

This appeal relates to an application for rezoning. Appellee, the “100” Club, is the owner of vacant property located at the southeast intersection of John Barrow Road and West Markham Street in the City of Little Rock. Immediately adjacent to this property, and also abutting West Markham Street, the other appellees, Mr. and Mrs. J. A. Parker, own property, which is improved with a brick dwelling that is the home of Mr. and Mrs. Parker. This area was annexed by the City of Little Rock in 1961, and appellees ’ properties, by reason of such annexation, were by operation of city ordinances, placed into an “A-One Family” zoning district. Appellees joined together in an application to the City of Little Rock, seeking to have the zoning classification changed to “F-Commercial.” The City Planning Commission and Board of Directors of the City of Little Rock denied the application, and suit was instituted in the Pulaski County Chancery Court, wherein the court was asked to declare the action of the city in refusing to rezone in accordance with their application to be arbitrary. On trial, the court found that the properties belonging to appellees bordered and were adjacent to an already existing “F-Commercial” district, and that such properties were no longer desirable for residential purposes, because of the proximity to the “F-Commercial” zone; further, that the refusal to rezone, as requested, had the effect of arbitrarily depriving appellees of the use of their properties. The city was enjoined from interfering with the use of the realty for “F-Commercial” purposes. From the decree so entered, appellant brings this appeal.

The property owned by the Parkers is bounded on the east by commercial usage in the form of a shopping center, and the “100” Club property is bounded on the west by John Barrow Road, across which there is a single family residence and substantially open lands. Across West Markham Street, and north of Parkers’ residence and the lands belonging to the “100” Club, there is a well-developed residential subdivision known as Brookfield. The southern boundaries of the “100” Club property abuts Cunningham Lake Road, where this road intersects John Barrow Road, and the Parker property is separated from Cunningham Lake Road by one plot of unoccupied ground. Cunningham Lake Road, in general, runs parallel to the north bank of Rock Creek, and across this creek is located Henderson Junior High School. There are plans to develop a park on the land surrounding the school, and Federal funds have been requested.

William Putnam, a real estate broker of Little Rock, testified that, in his opinion, the involved properties were not suitable for residential purposes, and the highest and best use would be for commercial purposes. He was also of the opinion that a rezoning to commercial would not adversely affect property in Brookfield Addition. Putnam stated that these properties could be used as “E-l Quiet Business,” but such a classification would not result in their highest and best use. James M. East, a real estate broker, likewise agreed that the highest and best use of the real estate at issue was “F-Commercial.” He said that the rezoning of the properties “would not affect the residential property in Brookfield any more than they were already affected at the time they were constructed.” More specifically, Mr. East stated that the best use for the premises was for retail stores, though he did not think that a service station or “drive-in” would adversely affect the value of the homes in Brookfield Subdivision. James L. Larrison, a real estate dealer, agreed substantially with East. When asked if the existence of a service station within a proximity of a homesite would adversely affect the marketability of that homesite, he replied, “That varies with people and circumstances. I don’t think you can answer that question categorically.”

A number of residents of the neighborhood testified in opposition to the rezoning. Mr. and Mrs. Gr. W. Blankenship, who reside in Brookfield, both strenuously objected, particularly mentioning their objections to a service station, a “Kwik-Chek,” and a “drive-in.” Mrs. Claudia Berthe, likewise a resident of Brookfield, who testified that she had invested about $27,000.00 in her house and lot, also vigorously objected, stating, “We have no idea what is being put in front of us. It could be a liquor store, honky-tonk, gasoline station or that quick check to which I object.” Mrs. Berthe is a real estate dealer, and she said that the traffic situation would be much more difficult, and that at present “it takes 40 minutes time to unsnarl coming both ways.” Mrs. Berthe testified that if the property were rezoned, “I intend to sell and get out.” Curtis Glover and William Payne, residents of the area, also vigorously objected,-Mr. Glover citing inconveniences of living in the near vicinity of a service station. Mr. Payne, a realtor, testified that he had also had the personal experience of living in the vicinity of a service station, and that such use of land adversely affects the market value of residential property.

C. V. Barnes, a real estate counselor, testified that, in his opinion, this particular area of the city has sufficient lands zoned commercial to meet the growth and needs of the area for the next ten years. It was his view that the highest compatible use for the properties is “E-l Quiet Business,” which would permit uses such as doctors’ offices, clinics, dentists’ offices, insurance offices, and others of a similar nature. He was also of the opinion that the rezoning of the premises involved would have a detrimental effect on the Brookfield Subdivision. Barnes agreed that the highest and best use of the properties would be commercial, but that this would not be the highest compatible use, i.e., a use which takes into consideration the surrounding areas.

Russell McLean, a real estate appraiser, testified that Brookfield is a subdivision where the homeowners exhibit pride in ownership by taking care of their properties, and that, in his opinion, Brookfield would be adversely affected if appellees’ petition for “F-Commercial” were granted. He was also of the view that the highest and most compatible nse would be an “E” or lower zoning classification. Henry de Noble, Director of Community Development in Little Rock, testified that the city is experiencing an extensive problem in the handling of traffic on West Markham Street in the general area involved, ‘ ‘ especially because of traffic created by John Barrow Road and traffic going to Henderson Junior High and also the normal flow of traffic during the peak periods on West Markham, which is traveling east and west to feed into different parts of the city. But we experience our heaviest times in the afternoon when school lets out and in the morning roughly around 8:30.” Mr. De Noble also stated that locating- a service station on this corner would be detrimental from the standpoint of safety; that a station would add to the traffic. He further testified that, as a result of the application of appellees before the Planning Commission, his staff recommended that the lands be rezoned to “E-l Quiet” use, and he also stated that a study reflected “that there is enough commercial zoning- at this time on a two-mile circle of a point just up road from this map, which includes this area there is enough commercial zoned property available today to serve over 100,000 people,” but that only about 36,-000 people could live within this radius.

Paul R. Pair, Deputy Superintendent of Schools, opposed the petition, stating, “We like residential property around the school. * * * Commercial property around the school is less desirable.” Mr. Pair said that commercial property increases the traffic around a school, thus constituting a more serious safety hazard, and that commercial districts create more noise and “disruption.” Mr. Pair testified that the district had applied for a Federal program to develop some of the property surrounding Henderson Junior High School as a park.

Appellees, for affirmance, rely almost entirely on Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883, and they quote from that case as follows:

“There are numerous witnesses in the case, and they express various opinions as to the effect of the construction of a business house on contiguous residence property, and they also differ as to whether or not the locality should be regarded as business or residence property. Giving due effect to the statement and opinions of all the witnesses, we are of the opinion that the evidence establishes very clearly and beyond controversy that the locality in question is a business district which has been well established, and which is now expanding, the expansion having reached the point where appellees are constructing their building. There is substantial evidence tending to show that the value of some of the adjacent residence property will be depreciated on account of the lessening of usable value of the property for residence purposes, but we do not think that this affords justification for interfering with the gradual expansion of the business district, which has already been established. As the size of the business district grows, it ceases to be a residence district to that extent within the purview of the zoning ordinance, and any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. ’ ’

In the case before us, the court found that appellees7 properties are adjacent to an existing “F-Commercial” district, and that the property is no longer desirable for residential purposes, because of its proximity to the “F-'Commercial” classification. We do not think however, that the Pfeifer case can be relied upon to uphold the “F-Commercial” classification. City of Little Rock v. McKenzie, 239 Ark. 9, 386 S. W. 2d 697, also mentioned by appellees, will be later discussed. The statute in force at the time of Pfeifer was Act 6 of the Second Extraordinary Session of the General Assembly of 1924, and cities of the first class were authorized to establish zones limiting the character of buildings erected thereon. There were only three zoning classifications under that Act, one, that portion of the city where manufacturing establishments might be erected, two, those portions of the city where business, other than manufacturing, might be carried on, and finally, those portions of the city set apart for residential purposes. Act 186 of the Acts of the General Assembly of 1957, Ark. Stat. Ann. § 19-2825 (Supp. 1965) is a comprehensive act authorizing cities of the first and second class to adopt and enforce plans “for the coordinated, adjusted and harmonious development of the municipality and its environs.” The purposes of the act are set out in Subsection a. as follows:

“The plan or plans of the municipality shall be prepared in order to promote, in accordance with present and future needs, the safety, morals, order, convenience, prosperity and general welfare of the citizens; and may provide, among other things, for efficiency and economy in the process of development, for the appropriate and best use of land, for convenience of traffic and circulation of people and goods, for safety from fire and other dangers, for adequate light and air in the use and occupancy of buildings, for healthful and convenient distribution of population, for good civic design and arrangement, for adequate public utilities and facilities, and for wise and efficient expenditure of funds.”

The Act itself consists of nine lengthy sections, including approximately forty sub-sections, and composing fourteen pages (Acts of Arkansas 1957), all dealing with the preparation of plans for the orderly growth of a city. Included is the authority of the city council to pass proper zoning ordinances, which “shall designate districts or zones of such shape, size or characteristics as deemed advisable.” Section 8 provides that the provisions of the Act shall be construed liberally.

It is apparent that the passage of Act 186 of 1957, to some degree, necessarily modified our holding in Pfeifer, for a strict and literal interpretation of all the language in that case would certainly result in nullifying the effort by a city to coordinate development of lands, and, more than that, in effect, would nullify Act 186. The right and responsibility for classifying the various areas in the city are with the zoning authorities, and their decision will only be disturbed if it is shown that they acted arbitrarily. Lindsey v. City of Camden, 239 Ark. 736, 393 S. W 2d 864.

The sole question before this court on this appeal is “Did the preponderance of the evidence before the Chancellor show that the city acted arbitrarily in refusing to rezone the properties here at issue as ‘F-'Commercial’?” While the word, “arbitrary,” has several definitions, probably the most generally accepted one is, “arising from unrestrained exercise of the will, caprice, or personal preference; based on random or convenient selection or choice, rather than on reason or nature.” (Webster’s Third New International Dictionary, 1961) After carefully reviewing the evidence, we are of the opinion that the answer is, “No, the preponderance of the evidence does not show that the city acted arbitrarily.” The testimony has been set out rather fully, and we think it clearly shows a reasonable basis for the decision by city authorities. Several property owners in Brookfield testified in opposition to the rezoning change, and this opposition was probably intensified by the fact that no definite decision had been reached by appellees as the the type of commereiál business that would be placed at the location sought to he rezoned.

The increase in traffic, and the fact that a junior high school is located nearby are also cogent reasons to support the city’s position.

However, the fact that the city was justified in refusing to rezone to ££F-Commercial” does not mean that the properties should remain within the residential classification. Appellees, as previously mentioned, cite City of Little Rock v. McKenzie, supra, in support of their contention that Pfeifer is controlling. In McKenzie we quoted Pfeifer as follows:

“* * * When a business district has been rightly established, the right of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property.”

But here, we are not saying that the city would not be acting arbitrarily in refusing to rezone these properties to any type of business property. We are only saying that the refusal to rezone same as ££F-Commercial” was not arbitrary. In fact, in McKenzie the east half of the property involved was rezoned from one family residential use to quiet business, and the west half was rezoned from one family residential to apartments not exceeding three stories in height. It might also be pointed out that in McKenzie, the City of Little Rock approved the rezoning (while here, it rejected it, and we simply held that the rezoning by the city was not shown to be arbitrary.

In line with what has been said, we find that the court erred in holding that the city had acted arbitrarily in refusing to rezone the involved properties as “F-Commercial,” and the decree is accordingly reversed.

It is so ordered.

Ward, J., not participating.

       Section 3 authorized an exception to be made in a particular instance “only for good cause, and in case of abuse the adjaceni property owners shall have the right to appeal to the courts of Chancery to protect their property from depreciation by reason of the setting up of such exceptional business within the zone.”

      This act is a “far cry” from Act 6 of 1924, which consisted of five short sections, and comprised only a page and a half in the volume containing the acts of the special session of 1924.

      At the meeting of the Board of Directors of the City of Little Rock, when the proposal for rezoning was presented, counsel for appellees stated that he could not specify the definite use of the property, if rezoned, though he did state that certain specific uses of the property would not be made.