author: John A. Fogleman, Justice.

text:
    Ark. State Highway Commn. v. Clarence Brown et ux
    5-4038
    410 S. W. 2d 737
    Opinion delivered January 30, 1967

      George 0. Green and Don Langston, for appellant.

      Ralph W. Robinson and Floyd G. Rogers, for appellee.
   John A. Fogleman, Justice.

Appellant filed its complaint and declaration of taking condemning 24.83 acres belonging to appellees, Clarence and Lorena Brown, in the Circuit Court of Crawford County on May 25, 1965. These lands, except for oil and gas interests that would not interfere with the surface use for highway purposes, were taken outright, along with temporary construction easements over 8.2 acres for construction of a controlled access, Interstate Highway No. 40. Trial to a jury resulted in an award of $40,000.00 to the landowners, from which this appeal is taken.

Appellant finds itself in the unfortunate predicament of being unable to file a complete court reporter’s transcript of the testimony and proceedings in the case because of a breakdown in the reporter’s recording machine. This was discovered after the verdict and judgment and the giving of notice of appeal. Appellant then availed itself of the remedy this court has held to be applicable in these circumstances — the filing of a statement of the evidence or proceedings from the best available means, which in this case was the recollections of counsel for appellant, aided by notes taken by him during the trial. See Ark. Stat. Ann. § 27-2127.11 (Repl. 1962); Tomlin v. Reynolds Mining Corp., 231 Ark. 393, 329 S. W. 2d 552; Mowrey v. Coleman, 224 Ark. 979, 277 S. W. 2d 481. While this statute requires that appellee, in such cases, serve objections or propose amendments within ten days, appellees did not file their response until twenty days had elapsed.

Thereafter, the court heard the parties, caused witnesses who testified on behalf of appellees to be brought in, sworn and examined as to the testimony and ordered that the portion of the record offered by appellant showing the testimony of appellant’s witnesses and the statements of appellees’ witnesses be approved and incorporated into the record. Prior to the making of this order, appellant moved to strike the objections and proposed amendments filed by appellees, contending that by failure to respond within the period set out by statute, appellees had waived their right to object and that the appellant’s statement as to the testimony became the record thereof, insofar as this appeal is concerned. When this motion was denied and the court’s order settling the record made, appellant moved for a new trial on the premise that the inability of appellant to have a complete stenographic report of the evidence and proceeding constituted accident or surprise which ordinary prudence could not have guarded against, a statutory ground for new trial. This motion was also denied and appeal was also taken from the order overruling that motion. Appellant now contends that the trial court committed error in denying its motions.

A review of our statutes and the decisions construing the Federal Rules of Civil Procedure, from which our statutes on the subject were adopted, along with the decisions above cited, clearly shows that the trial court has jurisdiction, as well as the responsibility, to settle the record on appeal. Ark. Stat. Ann. § 27-2127.11 requires that any such statement filed by appellant, with objections or proposed amendments, be submitted to the trial court for settlement and approval, and that the same as settled and approved by the trial judge be included in the record on appeal.

While Ark. Stat. Ann. § 27-2129.1 (Repl. 1962) provides that it is not necessary for the record on appeal to be approved by the trial court, it requires that any difference that arises as to whether the record discloses what occurred in the trial court be submitted to and settled by the trial court which is authorized to direct that any omission or misstatement be corrected. The cited sections were adopted from former Rule 75 (h) and (n) of the Federal Rules of Civil Procedure [now 75 (c) and (d)]. Under these rules, it has been held that such a statement not accurately reflecting the truth and not submitted to the trial judge is for the attention, correction and disposition of the trial court. Miller v. Miller, 114 F. 2d 596 (D. C. Cir. 1940).

If the judge cannot remember the evidence, he may call witnesses who gave or heard the testimony. Citizens National Trust and Savings Bank v. Welch, 119 F. 2d 717 (9th Cir. 1941). There is no error in the trial judge denying a motion to amend the record where he has no recollection of the matter sought to be inserted. Cox v. United States, 284 F. 2d 704 (8th Cir. 1960), cert. denied, 365 U. S. 863, 5 L. Ed. 2d 825; Cox v. General Elec. Co., 302 F. 2d 389 (6th Cir. 1962). The finding of the trial judge is conclusive unless clearly unreasonable, in the absence of any charge of deliberate and intentional falsification of the record. Gunther v. E. I. Du Pont de Nemours & Co., 255 F. 2d 710 (4th Cir. 1958); Belt v. Holton, 197 F. 2d 579 (D. C. Cir. 1952). It is only where the adverse party files no objections, or where no specific fault is pointed out by the trial judge that appellant’s statement of evidence is accepted by the appellate court. See Laughlin v. Berens, 118 F. 2d 193. (D. C. Cir. 1940); Citizens National Trust & Savings Bank v. Welch, 119 F. 2d 717 (9th Cir. 1941).

But the appellant says that the tardy filing of appellees’ objections and proposed amendments requires that its motion to strike be granted and that its version of the record be accepted. Except as limited by statutes relating to the granting of default judgment when the first pleading of a defendant is not timely filed, a trial court has the discretion to permit a litigant to file pleas or other motions out of time as the circumstances of the case and justice may require and this discretion may not be controlled by this court unless it has been exercised to the palpable prejudice and injustice of the adverse party. Southern Improvement Co. v. Elliott, 160 Ark. 633, 255 S. W. 299; Norris v. Kellogg & Company, 7 Ark. 112; Crow v. State, 23 Ark. 684; Bookout v. Hanshaw, 235 Ark. 924, 363 S. W. 2d 125. It has been held that striking a cross complaint filed two months after the filing of the suit was erroneous where the filing occasioned no delay. Huffman v. City of Hot Springs, 237 Ark. 756, 375 S. W. 2d 795.

The trial judge seems to have followed the appropriate procedure in settling the record, and we find no prejudicial error. Appellant’s contention as to the refusal of its motion for new trial for unavoidable casualty has been answered adversely to appellant in Ark. State Highway Commn. v. Clap, 241 Ark. 501, 408 S. W. 2d 600.

Error in refusal to give appellant’s requested instruction No. 7 is also asserted. That portion of the record transcribed and certified by the court reporter shows that this instruction was given. This statement will have to be accepted by this court, particularly in view of the fact that the trial court accepted appellant’s version of the record only as to the testimony of witnesses called by appellant.

Appellant also contends that the trial court erred in overruling its motion to strike the testimony of certain witnesses concerning damages for loss of access to 57 acres of appellees’ farm. This is based on appellant’s assertion that this tract will be accessible to the remainder of appellees’ tract by reason of the fact that access will not be controlled under a bridge over the relief along the eastern boundary of the property and along the northern right-of-way line of the highway, which will traverse the Brown farm from northeast to southwest. The answer to this contention lies in the fact that there was testimony that water stands ten months of the year on this area; that heavy farm implements and trucks required for use on the tract or in harvesting and transporting crops could not be moved in and out by this means; that the area would wash out and be rough; and that this amounted to no access, or was not the kind of access that prevented a great decrease in the land value due to severance. This presented a factual question for determination by the jury and the motion to strike was properly denied.

Appellant asserts that there is no substantial evidence to support the jury verdict, but with becoming candor, appellant’s counsel admits that there is no merit in this point unless the case should be reversed for one of the other errors asserted. It is sufficient to say that after a careful examination of the record, we agree with this admission.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Walter A. Freeman & Cobb Funeral Home, Inc. v. Lee R. Reeves & Virgie Reeves
    5-4058
    410 S. W. 2d 740
    Opinion delivered January 30, 1967

      Reid, Burge & Prevallet, for appellant.

      Gardner & Steinsiek, for appellee.
   John A. Fogleman, Justice.

Appellees, Lee R. and Virgie Reeves, husband and wife, recovered judgments of $6,500.00 and $12,000.00 respectively against Walter A. Freeman and Cobb Funeral Home, Inc., on February 1, 1966 for injuries and damages sustained as a result of a collision between a Blytheville city fire truck and an ambulance driven by Freeman for the owner, Cobb Funeral Home, Inc. The collision took place on January 18, 1963 at the intersection of Kentucky and Second Streets in Blytheville. Appellees were occupants of a station wag-on which had stopped on Second Street just north of the intersection at a stop sign shortly before the two vehicles collided in the intersection, after which the fire truck struck the front of the station wagon and overturned on top of it. Appellees brought their suit against appellants, Freeman and Cobb Funeral Home, Inc., alleging negligence on the part of Freeman in the operation of the ambulance as the proximate cause of their personal injuries and damages. Appellants filed their answer denying any fault or liability and, with permission of the court, a third party complaint against Billy Bratton, the driver of the fire truck, alleging- that the injuries and damages of appellees resulted from negligence on the part of Bratton, bnt seeking judgment over against Bratton if judgment should be recovered by appellees against appellants.

After hearing all the evidence and the instructions of the court, the jury, in answer to interrogatories propounded by the trial judge, found that Freeman was guilty of negligence which was a proximate cause of the occurrence but that Bratton was not. Appeal was taken by appellants from the judgment based on that verdict.

Both appellants and the fire truck driver sought to excuse their actions by claiming a status as emergency vehicle drivers and resulting exemption from certain traffic laws and ordinances. The principal ground for reversal urged by appellants is based upon the failure of the trial judge to instruct the jury that the ambulance was an emergency vehicle at the time and place of this occurrence, rather than submitting the question to the jury as a question of fact. This contention was based largely on the testimony of George Ford, a police officer for nine years and assistant chief of police at the time of the incident. He testified that, at that time, the police department had a policy of alternating calls for ambulances between two local funeral homes, calling one the first fifteen days of a month, and the other the last fifteen days. These calls were made whenever the police department received a call for an ambulance or when an officer working a wreck said he needed an ambulance. When asked how he classified ambulances, this witness said: “As emergency vehicles”. In September, 1965, he (then chief of police) designated all the ambulances as emergency vehicles in writing. The witness had done all administrative work for the department from 1955 up to the time of this collision. His search of the ordinances failed to reveal any designation of ambulances as emergency vehicles. C. W. Short, who served for perhaps ten years, was his predecessor as chief of police. Prior to the written designation, the police treated ambulances owned by these funeral homes as emergency vehicles if they had a patient and were making an emergency run, but they had no policy and didn’t know anything was required.

James Stovall, an employee of Cobb Funeral Home and a witness called by appellants, stated that the City of Blytheville furnished no ambulance service and that the funeral homes answered ambulance calls from the police department without question and without asking who is going to pay the bill. He testified that the ambulance was operated as a public service for which they collected if they could. Both Freeman and G-erald Thomas Moody, the attendant accompanying him, testified that the call being answered came from a nursing home where they picked up a patient who was having a hard time breathing and required the administration of oxygen by the attendant. On the other hand, it was shown that the patient, after being involved in this wreck, was discharged from the hospital on February 26th. The driver and attendant testified that the siren and red light on the ambulance were turned on.

The Arkansas Statute defining authorized emergency vehicles is § 75-402 (d) (Repl. 1957) which reads:

“Authorized Emergency Vehicle. Vehicles of the fire department (Fire Patrol), police vehicles and such ambulances and emergency vehicles of municipal departments or public service corporations as are designated or authorized by the (commissioner) or the (chief of police of an incorporated city).”

Our statutes permit an authorized emergency vehicle* to be equipped with a siren, whistle or bell of an approved type and require its use when the vehicle is being operated on an emergency call, otherwise the use of a siren is prohibited. Ark. Stat. Ann. § 75-725 (b) (Repl. 1957). They also require drivers of authorized emergency vehicles, when responding to emergency calls, to slow down as necessary for safety upon approaching red lights or stop signals, but permit their proceeding cautiously past them. § 75-423 (b). Prima facie speed limRations- are not applicable to authorized emergency vehicles when responding to emergency calls and sounding an audible signal, but drivers are not relieved of the duty to drive with due regard for the safety of all persons using the streets or of the consequences of a reckless disregard of the safety of others. § 75-606. Upon the immediate approach of such a vehicle giving the proper signal, the driver of every other vehicle shall yield the right-of-way, drive to a position near the right-hand edge of the highway and stop and remain until the emergency vehicle has passed. § 75-625.

Since appellants claimed the status as a defense, the burden was upon them to prove that theirs was entitled to be considered an emergency vehicle. While we think there is substantial evidence on which a jury verdict in favor of appellants might have been sustained, we do not find the evidence to be such that the trial judge committed error in submitting the question to the jury. While we do not hold that the designation or authorization of ambulances by the chief of police must necessarily be in writing, there is certainly a factual question as to whether this designation or authorization had been made by the chief of police. The mere fact that there was a police custom of calling the Cobb ambulance at certain periods and “we” treated such ambulances transporting a patient as emergency vehicles, would not constitute any presumption that these ambulances had been so “designated or authorized”, particularly when Ford, administrative officer of the police department at the time the action would have been taken, could find no evidence of such action. It is of some significance that neither Ford nor Stovall testified about any action by the chief of police.

The question of constitutionality of the statute for failure to provide standards upon which the designation or authorization might be made was not raised.

We are also aware of decisions such as Perrine v. Charles T. Bisch & Son, 346 Ill. App. 321, 105 N. E. 2d 543; Champagne v. Employers Liability Insurance Corporation, 112 So. 2d 118 and Chastant v. Employers Liability Insurance Corporation, 112 So. 2d 120, which appear to sustain the appellants. The statute applied in the Perrine case and the statute then in effect made all ambulances emergency vehicles. Illinois Revised Statutes, § 99 (d), Chapter 95% (1947). While we do not have the benefit of all the testimony in the Champagne and Chastant cases, it is clear that the chief of police was the witness by whom recognition of ambulances as emergency vehicles was shown. It is also clear that the court found there was no doubt, from the evidence, that the ambulance involved was a “sanctioned and recognized emergency vehicle”. We have found no statute in Louisiana providing for designation or authorization of ambulances as emergency vehicles by a chief of police until 1962, some three years after the decision in those cases, even though there were statutes giving certain exemption to ambulances and emergency vehicles.

Of course, even if an ambulance is exempt from observing certain traffic regulations and has the right-of-way under appropriate circumstances, it does not follow that this is an exemption from the duty to exercise care commensurate with the circumstances for the safety of other travelers or persons. Proper instructions as to these duties of the drivers of these emergency vehicles were given. We think the evidence was sufficient to justify the submission of the question whether there was negligence on the part of appellants to the jury and to sustain the jury’s finding that there was such negligence, when viewed in the light most favorable to appellees as we must do.

There was testimony to show the following:

The ambulance struck the fire truck with such force that the whole truck left the ground, turned over on top of the Reeves ’ car in a sort of angling somersault, with the back end of the fire truck coming to rest on the automobile upside down. The major impact indicates that the ambulance struck the right rear of the fire truck from the center of its right rear dual wheels toward the rear. The impact was such that the right rear dual wheels were knocked completely loose, three steel tie bolts holding the springs to the axle as big as the fire truck driver’s fingers were parted, in two, and another was twisted. The frame of the fire truck was warped. The rear end of the fire truck had passed the center of the intersection and the front end was almost through the intersection when the truck somersaulted. The course taken by the ambulance from the nursing home was north on Ruddle Road, west on Tennessee, south on the street that runs along the west side of Fairview School (probably LaClede) to Kentucky and west on Kentucky to the scene of the collision. The ambulance was coming at a pretty good rate of speed, a lot faster than the speed limit. As the ambulance approached the intersection, it seemed to Reeves to pick up speed (he first saw it a half block away). There was nothing to block the vision of the intersection for traffic coming east and headed west, except a small bush with no leaves on it. The siren at the fire station can be heard for a mile around. The red light on the fire truck was blinking and the siren blowing when it turned on Second Street going north. The driver of the fire truck let up on the gas and looked both ways before he entered the intersection and did not see any vehicle approaching. He could see a good ways up the street. He did not see the ambulance until he had entered the intersection when it was at least thirty to forty yards away. He didn’t see the ambulance decrease its speed or take any evasive action. The ambulance was g’oing’ so fast the fire truck driver could not estimate its speed. It was going awful fast.

This was certainly sufficient to justify the denial of a directed verdict in favor of appellees.

Appellants also contend that the failure of the driver of the fire truck to stop at a stop sign at the intersection under existing conditions (contending that the intersection was blind), made him guilty of negligence as a matter of law. We think that, at besit, this was evidence of negligence, proper for determination by the jury and resolved by it against the appellants.

Another contention of appellants is that the jury verdicts are excessive, without support in the evidence and indicative of passion, prejudice or partiality. Here, again, we must view the evidence in-the light most favorable to appellees. When we do so, we find no merit in these contentions.

If the jury viewed the testimony most favorable to Lee Reeves, it may have based its verdict on the following evidence:

That he blacked out; suffered two broken ribs and three cracked ones; severe left chest pain, difficulty in breathing, exhibiting short, rapid, painful respiration; a cut over the left eye; a bruised left knee with limitation of motion, swelling and sprain; a scratch on his lung with scarring which' could become an area of chronic bronchitis. His glasses were broken. He was in the hospital four days. He was treated with narcotics for pain, had Furacin applied to his knee and was given Gelusil for indigestion, a cough syrup and antibiotics. He was given an elastic band to hold his ribs immobile. He was unable to go back to work for a couple of weeks at the Blytheville Air Force Base where he was employed as an accounting clerk, losing $450.72. When he was able to return, he could not work a full day. He was given antibiotics again for about eight days. He saw his doctor several times after he was in the hospital and went to a chiropractor because his neck was hurting so badly and got some temporary relief. He took a good many pain pills on account of these injuries. He paid medical and hospital bills totalling $326.27. His automobile loss was $898.28. He lost five days (or $125.20) by reason of having to take his wife to Memphis to a doctor and spent his vacation half a day at a time helping her on her newspaper route. His wife was unable to get around well, to sleep well, or to do her housework. He had to do some of the housework. She was in the hospital for at least two weeks after the first stay of four days.

As to Yirgie Reeves, the jury might have found:

She blacked out and was hysterical when her husband regained consciousness; she was taken to the hospital in Blytheville where she remained under the care of Dr. Files for four days; when she got there she was complaining of very severe headache and pain in her right knee and was moderately upset emotionally. She had some tenderness of the back of her head and base of the skull and pain on motion of the neck. Her exposed skin revealed tiny abrasions and lacerations. There was contusion, swelling, tenderness and general disability of her right knee. She was treated with bed rest, tetanus toxoid booster, a drug to reduce contusion and swelling, narcotics for pain, antinauseants and estrogenic substances. She was discharged for further treatment at her doctor’s clinic, still having headaches. She was then unable to sleep (she continued to have trouble sleeping until the time of the trial) and couldn’t get around well. She used (and has continued to use) a heating pad and took pain pills. The headaches continued and she was found to have sinusitis for which she was treated with anticongestive products and antibiotics. She then complained of pain in her hip and diathermy treatments were started. When she again complained of headaches and pain in her right hip radiating down the back part of her leg to the knee, Dr. Files made a tentative diagnosis of a ruptured disc. She was returned to the hospital for two weeks. where she was treated with drugs to relax her muscles, bed rest, physiotherapy, pain drugs and other measures (put in pelvic traction to decompress the disc). Dr. Files sent her to Dr. DeSaussure, a neurosurgeon in Memphis, who gave her a myelogram at the Baptist Hospital where she remained for several days, after which she had bad headaches for which she was given medicine. She returned home and continued to see Dr. Files but her condition did not improve. About two months after the injury, she continued to have back and right leg pain when sitting on a hard surface and was given a tranquilizing drug and protein by injection. When the symptoms continued two weeks later, she was started on ultrasonic and diathermy treatments and later had 15 ultrasonic treatments to the low back and right sciatic nerve, along which line she was treated for several months. Dr. Files later diagnosed her condition as spondylolisthesis, or a slipping of one vertebra on another, a condition which is intermittent and may be produced by certain motions, lifting or certain positions, after which the spine may return to normal following bed rest or proper treatment. A person with that condition becomes disabled to a certain extent. She aggravated her condition by a fall on August 12, 1963, when her right leg gave way and her right knee went to the ground. She was examined by Dr. Crenshaw at Campbell’s Clinic in Memphis and made five trips to see him. He prescribed certain exercises and gave her a back brace with steel stays to wear. She was wearing this brace daily at the time of the trial and the doctor had given her two of them so she would have a change. Dr. Crenshaw said that she had a permanent partial disability of 15% to her body as a whole, attributable to this injury. She continues to suffer pain and takes from four to ten Excedrin tablets daily. During this period she went to a chiropractor because of her pain. She lost eight weeks from her work of distributing newspapers in bundles to various points for pickup by newsboys and to various stores and display racks. She was paid $33.35 per week for this. While she is doing the same work at higher pay, the newspapers have to be put in smaller bundles for her to handle and her husband has to help her a good bit. Her housework went to pot and she is still unable to do heavy housework, with which her husband and two younger children help. She can’t ride in or drive a car except for short distances. Her medical and hospital hills amounted to $533.64, some .of which may have been for other purposes.

We cannot say that these findings do not give substantial support to the jury verdicts.

Finally, appellants contend that there was error in the trial judge’s instruction permitting the jury to consider the use by Reeves of accumulated sick leave because of these injuries, saying he suffered no loss because his employer paid him. This court has said that an injured party should be entitled to show all the loss he may have sustained as against such a contention, even though the party may have also been compensated to some extent through Workmen’s Compensation. Swindle v. Thornton, 229 Ark. 437, 316 S. W. 2d 202. Regardless of whether the facts in this case are identical, we see no reason why an injured party should not recover as damages for lost leave (whether accumulated sick time or vacation time) for which he is paid by his employer and which he has earned through his employment, as he certainly cannot later claim this time with pay. To say that the possibility that he may never be sick again renders this speculative is not sufficient to bar recovery for such time. We think that the holding of the United States District Court in Beaty v. Buckeye Fabric Finishing Co., 179 F. Supp. 688, on this point is correct and the Arkansas authorities cited there appropriate.

Affirmed.

Byrd, J., dissents.


author: J. Fred Jones, Justice.

text:
    White County Guaranty S&L Assn. v. Searcy Fed. S&L Assn. et al
    5-4086
    410 S. W. 2d 760
    Opinion delivered January 30, 1967

      Spitzberg, Bonner, Mitchell & Hays; By: Allan W. Horne, for appellant.

      Charles E. Yingling Jr. and George P. Eldridge
      and Kaneaster Hodges and Murphy & Arnold and Smith, Williams, Friday & Bowen; By: Ben Allen, for appellee.
   J. Fred Jones, Justice.

This case involves the formation of a permanent stock savings and loan association under Act No. 227 of the Acts of Arkansas for 1963.

The State Savings and Loan Association Board and its Supervisor, approved the application of appellants for a charter. Upon appeal, the Circuit Court reversed the Board, and the precise question before us on appeal is whether or not there was any substantial evidence to support the order of the Board.

In 1964, a group of individual citizens in and around Searcy, Arkansas, associated together under the name of “White County Guaranty Savings and Loan Association,” and attempted to acquire the status of a legal entity with authority to operate as a permanent stock savings and loan association under charter to be.issued by the State Savings and Loan Association Board under and pursuant to Act 227 of the Acts of Arkansas for 1963, Ark. Stat. Ann. § 67-1801-1862 (Repl. 1966).

Two applications were filed with the Board. The first application was filed in 1964, and included the names of thirteen individuals who would constitute the proposed board of directors, and the names of eighty-five individuals who had subscribed to capital stock, and paid in the sum of $181,244.00, which was placed on time deposit in banks. On December 14,1964, on grounds other than insufficiency of the stock subscriptions, this application was denied.

After this application was denied by the Board, the subscribers to stock were notified that efforts to obtain a charter would be continued, but that anyone desiring a refund of any amount paid on subscription, could obtain same upon request. A few of the original subscribers claimed refunds in amounts totaling $19,413.02, and their names were stricken from the subscription list. After refunds on subscriptions and the payment of other expenses, there remained on deposit in Searcy banks the sum of $153,834.54 in paid-in subscriptions, when on January 14, 1965, a second application was filed.

The record reveals little change in the two applications except that the names of two of the “proposed chairmen of the incorporators and initial board of directors,” in the first application were left off in the second application. It appears that the original copy of the schedule or list of subscribers to the permanent capital stock filed with the first application was copied and filed as the schedule in the second application, the only difference being that the first was an original copy and the second was a duplicate with the names of those who had withdrawn and claimed their refunds stricken out.

Both applications were vigorously opposed by other lending institutions in the White 'County area and hearings were had on both applications. The second application was approved and a certificate of authority was issued to the White County Guaranty Savings and Loan Association.

The Circuit Court, on appeal from the decision of the Board, found that there was no substantial evidence of applicant’s compliance with the necessary statutory prerequisites concerning subscriptions to savings accounts and permanent capital stock to sustain the Board’s findings that the subscriptions were sufficient to justify the initial successful operation of a savings and loan association as required by law, and the Circuit Court reversed the Board on these findings, but in all other respects, the findings of the Board were affirmed.

The Circuit Court then entered its judgment remanding the cause to the Arkansas Savings and Loan Association Board with directions to dismiss the application. The applicant, White County Guaranty Savings and Loan Association, on appeal to this Court, designates one point upon which it relies, as follows:

‘ ‘ The Circuit Court erred in holding that there was no substantial evidence to support the finding of the Arkansas Savings and Loan Board that the subscriptions to savings accounts and permanent capital stock of Appellant were sufficient.”

The protestants before the Board, and appellees here, contended before the Board that savings accounts had not been subscribed from individuals in the aggregate number and amount sufficient to justify the successful operation of a savings and loan association, and that permanent capital stock had not been subscribed as required by law. They directed their most pointed attack at the legal sufficiency of stock subscriptions, and argued that stock subscriptions must be in writing and that an original signed subscription list must, as a matter of law, be filed with each application for a charter. They contended on appeal to the Circuit Court, and they contend on the appeal here, that there was no substantial evidence to support the findings and order of the Board.

It appears clear that in the absence of statute or charter provisions to the contrary, stock subscriptions may be written or oral or in any other form that would satisfy the requirements of a valid contract.

In CJS § 295 we find the following:

“In the absence of a charter or statutory provision to the contrary, a stock subscription need not be in any particular form or made in any particular mode, as long as there is a present intention to contract with the corporation and the agreement is complete and definite.” Citing Gibson v. Oswalt, 257 N. W. 825, 269 Mich. 300.

In Rutenbeck v. Hohn, 121 N. W. 698, the Supreme Court of Iowa said:

“While the strict definition of the word ‘subscribe’ or ‘subscription’ involves the idea of a written signature, yet by common usage it is often employed to include an agreement, written or oral, to give or pay some amount to a designed purpose, more usually, perhaps, to some purpose for the promotion of which numerous persons are uniting their means and their efforts.” See also Mills v. Friedman, 111 Misc. 253, 181 N. Y. S. 285, 292, Jones v. Ronkin, 19 N. M. 56, 140 p. 1120, 1121.

The literal definition of the word “subscribe,” of course, is to write under, (Black’s Law Dictionary) but the word as used in the context here has also been defined as equivalent to “agree to pay.” Strong v. Eldridge, 8 Wash. 595, 37 Pas. 697.

We now examine our own statutory requirements for the formation of a savings and loan association, and then the evidence before the Board in determining whether or not the Board’s findings were based on substantial evidence.

Our own statutes are not perfectly clear on whether or not subscriptions to stock in a savings and loan association to be chartered under Act 277 of 1963, Ark. Stat. § 67-1801-1802 must be in writing. The Business Corporation Act, Act 576 of the Acts of Arkansas for 1965, Ark. Stat. § 64-203 does so provide, but that same act § 64-103 provides as follows:

A. “Corporations may be organized under this act [chapters 1-10 of this title] for any lawful purposes except that where another statute of this State * * * requires that corporations of mvy designated class be organised thereunder, corporations of that designated class shall be organised under such other statute and shall he subject to the provisions thereof.”
B. “In respect to all corporations of any designated class that could he organized under this act but which are subject to the provisions of any other statute or statutes placmg restrictions or conditions on the orga/nisation of such corporations, or providing for the regulation of Such corporations after organisation, the provisions of this act shall apply to such corporations only to the extent that this act is not inconsistent with the provisions of such other statute or statutes; this act not being intended to repeal, amend or qualify any statute of such character.
C. “A corporation originally incorporated under a general business corporation statute of this State, but belonging to a class whereunder the organigational filing procedures have been transferred to some state office or agency other than the Secretary of State, will not be subjected to the provisions of this act.” (emphasis supplied)

Act 227, under which appellant’s applications were made, is a highly regulatory act and vests authority in a five member board and a supervisor to charter and regulate savings and loan associations under the supervision of the State Securities Commissioner. This act is not long, its provisions are not ambiguous and the organizational procedure under its terms is not complicated. It makes no provision as to manner or form of stock subscriptions.

The organizational section of Ark. Stat. Ann. § 67-1816 (Repl. 1966) simply provides as follows:

“Application for a charter for a savings and loan association may be made by ten [10] or more citizens of this State (hereinafter referred to as incorporators) by tendering to the Supervisor, along with the prescribed filing fee, an application consisting of the following:
(1) Two [2] copies of the articles of incorporation for the proposed association stating:
(a) The name and the site of the principal office of the association;
(b) The names and addresses of the incorporators;
(c) The name and address of the resident agent for service of process on the association;
(d) The terms of the corporate existence, which may be either perpetual or limited to a fixed number of years;
(e) Whether the association will carry on its business as a mutual association or as a permanent stock association;
(f) For a permanent stock association the number of shares of permanent stock authorized and the par value of each share.
(2) A statement as to (i) the amownt, if cmy, of permanent stock which has been subscribed and paid for at the time of filing, (ii) the names and addresses of such subscribers and the amount subscribed by each, (iii) the names, addresses and amounts of savings accotmts which have been subscribed, and (iv) the amount of paid-up surplus or expense fund with which the association will commence business.
(3) Two [2] copies of the by-laws under which the association proposes to operate.
(4) The names and addresses of the chairman of the incorporators, the proposed members of the board of directors and the proposed officers.
(5) Such other information in regard to the proposed association and its operation as may be required by tbe Supervisor.
Tbe articles of incorporation and all statements of fact tendered to tbe Supervisor in connection with an application for charter shall be subscribed and sworn to under the sanction of an oath, or such affirmation as is by law equivalent to an oath, made before an officer authorized to administer oaths.” (emphasis supplied)

Appellees argue that when the first application was denied by the Board, that the applicants or proposed incorporators ceased to exist as an organization, and the subscriptions filed with the application terminated by operation of law, and that when the second application filed by other incorporators with different officers and directors, with different proposed stockholders, at a different date, there must be filed or provided new and different stock subscriptions and savings account subscriptions.

The facts of record in this case do not sustain appellees in their argument. The record in this case reveals that there were nineteen incorporators in the first application, and it appears to be conceded by all parties concerned, that this application as to stock subscriptions, as well as subscriptions to savings accounts, fully met all statutory requirements. The nineteen citizens who made the first application as incorporators, alone subscribed 87,750 shares and paid in $104,000.00 as reflected in the application itself.

Between the first and second applications three of the original nineteen withdrew and did not participate in the second application but the remaining sixteen made the second application. The three applicants in the first application who did not participate in the second, had subscribed to 12,000 shares of capital stock in the amount of $14,400.00, leaving 75,750 shares subscribed by the sixteen who made the second application. One of the applicants in the first application raised his subscription in the second application from 5,000 shares to 6,000 shares, making a total of 76,750 shares (erroneously totaled in transcript as 86,750) in the amount of $92,000.00 subscribed by the applicant incorporators alone in the second application.

Even if we should hold that the applicant incorporators were required to file new and different stock subscriptions with their second application rather than a statement as to the amount, if any, of permanent stock winch had been subscribed and paid for at the time of filing, as required by paragraph two [2] of Ark. Stat. § 67-1816 {Supra), we are unable to see how the ten incorporators who actually signed the application under oath as proposed members of the board of directors, and who had between themselves, subscribed 60,250 shares in the amount of $72,300.00, could have added anything to their oath by writing out, or signing and filing, with the second application, a new and additional separate subscription contract.

In 18 CJS § 298, p. 789, is found the following:

“If a subscriber, with knowledge of the facts, expressly ratifies the subscription or so acts that a ratification or a waiver of objection may be applied, he cannot afterward avoid liability on the ground that the corporation has not been formed with powers contemplated or that it is otherwise not the same corporation as that contemplated by the subscription agreement.” Citing Flournoy v. Highland Hotel Company, 153 S. E. 26, 170 G. A. 467.
“Where parties subscribed for stock in a corporation to be thereafter organized, it is not essential that the corporation shall be organized by the parties to the agreement or their representatives unless it is so provided at the subcription. ” Citing Avon Springs Sanitorium Company v. Weed, 104 N. Y. S. 58, 119 App. Div. 560 reversed, 82 N. E. 1123, 189 N. Y. 557.
And at 18 C. J. S. 294: “Preliminary subscription of stock may be made by signing the articles of incorporation, in which case they are enforceable only against those who sign.” Citing Shiffer v. Akenbrook, 130 N. E. 241.

Appellees direct our attention to Arkansas Statutes § 67-1830 and argue that before this second application should be approved, there should be sufficient subscribed savings accounts from individuals, filed with the second application, that would justify the initial successful operation of such association. A great deal of discretion is placed in the Board by the legislature, and as to savings accounts, Ark. Stat. § 67-1830 reads as follows:

“As a prerequisite to approval of any application for a proposed permanent stock association, the incorporators must show to the satisfaction of the Board subscribed savings accounts from individuals in the aggregate number and amount which in the opinion of the Board will justify the initial successful operation of such association.” (emphasis supplied)

When an application for charter has been made by a group of citizens of Arkansas under Act 277, and the application is denied, we find nothing in the Act, by reference or otherwise, that could prevent ten or more members of this same group from making a second application for a charter.

The parties seem agreed that $75,000.00 in paid-in permanent capital stock subscriptions was the required minimum in this case. It seems undisputed that 80,522 shares of capital stock have been subscribed and there has been paid in and is now on time deposit in two Searcy banks, the sum of $153,712.03 with which to pay for the stock when certificates can be issued. This is more than twice the amount required under the law in this case.

In the first application 216 individuals subscribed $225,010.00 to the savings accounts. Twenty-one of this number testified before the Board at the hearing on the second application that they alone would deposit amounts totaling $293,500.00 in savings accounts with appellant, if and when, a charter is granted.

If appellees interpret § 67-1830 Supra to mean that the incorporators must show to the Board subscribed contracts for savings accounts before the application can be approved, we do not agree with that interpretation. We think the legislature intended that the incorporators must show to the satisfaction of the Board that a sufficient number of individuals have agreed to open savings accounts in sufficient amounts which in the opinion of the Board will justify the initial successful operation of the association.

It must be remembered that in the formation of a savings and loan association under Act 227, unlike the formation of some business corporations of another class, the amount subscribed for permanent capital stock in savings and loan association stock subscriptions must be paid in before an application is approved, Ark. Stat. § 67-1819, and the permanent capital stock must be fully paid for in cash in advance of issuance. Ark. Stat. & 67-1818.

We find, and so hold, that the action of the Board in approving the application was supported by substantial evidence.

The judgment of the trial court is reversed and this cause remanded with directions to remand to the Board for further procedure not inconsistent with this opinion.

[Reversed and remanded.

Harris, O. J., dissents.

Brown, J., not participating.


author: Carleton Harris, Chief Justice. Conley Byrd, Justice,

text:
    Clara Andrews v. Victor Metal Products Corporation
    5-4091
    411 S. W. 2d 515
    Opinion delivered February 6, 1967
    [Amended on denial of rehearing March 13, 1967]

      Frank Lady and H. M. Ellis, for appellant.

      Pickens, Pickens & Boyce, for appellee.
   Carleton Harris, Chief Justice.

This case is here on a fourth appeal. Clara Andrews, appellant herein, an employee of Victor Metal Products Corporation, was discharged from her employment on March 12, 1959, at the plant. Thereafter, she filed a claim for unemployment benefits under the provisions of Ark. Stat. Ann. § 81-1107 (Repl. 1960). The ESD local office found that she was disqualified for compensation, because the reason for her discharge was insubordination. An appeal was taken to the Appeals Eeferee, and then to the Board of Review. The Board of Review affirmed the findings, and Mrs. Andrews appealed to the Jackson County Circuit Court. That court then affirmed the decision of the Board of Review, and, in a subsequent common law action, growing’ out of an alleged contractual relationship between the parties, we held that the court’s affirmance, heretofore mentioned, was not res judicata of the latter suit instituted by appellant. Mrs. Andrews was permitted to proceed with her suit against Victor Metal Products Corporation, appellee herein, for breach of contract, and on February 21,1966, the case was tried before a jury, resulting in a verdict for appellee. From ..the judgment entered in accord with the verdict, appellant brings this appeal. For reversal, Mrs. Andrews first asserts that the trial court erred in permitting appellee to introduce evidence relating to the reason for her discharge, such evidence being offered for the purpose of justifying the termination, and appellant not having received a written notice of discharge as she contends was required under the terms of the contract.

The company had entered into an agreement with A.F.L. Local 230, Aluminum Workers International Union, of which appellant was a member in good standing. Article II, Section 2, of that agreement provides as follows :

“The Company has the right to discharge or suspend any employee for cause, including failure to comply with published or posted plant rules and the terms of this agreement. Such employe and the president of the Local Union shall be advised in writing by the Company within 24 hours of such discharge (excluding Saturday and Sunday) of the reason for such discharge or suspension; and the employee shall have the right to question if the discharge or suspension was for cause or violation of such plant rules or the terms of this agreement by appeal in writing within three working days through the grievance procedure established herein, including arbitration.”

This point for reversal is predicated upon the fact that Mrs. Andrews never received a notice in writing of the reason for her discharge, and this is admittedly true. To briefly summarize the evidence, Johnnie Tubbs, a foreman at appellee company, testified that on the morning of March 12, “Mrs. Andrews’ line was down and it is the general practice of Victor when a line is down to send the women to the bench; that is where they do salvage work, tubes are set back on the end of the line;” that Mrs. Andrews refused to go to the bench, stating, “No, I am not going.” After making several requests for her to follow the order, he reported the matter to Bezo Nicholson, Chief Steward of the local union. Appellant also refused Nicholson’s request to go to the bench. Nicholson testified that, as the union steward, he tried to reason with Mrs. Andrews, telling her that, under the union grievance procedure, she was supposed to follow the orders of the foreman, and then, if she felt aggrieved over the task assigned, file a grievance. Subsequently (within three hours), the matter was discussed in the office of the plant superintendent, C. 0. Lewallyn. Those present at the time were Mrs. Andrews, Lewallyn, Joe Nuckolls, president of the local union, Tubbs, and Chester Knox, personnel director. All talked with appellant, endeavoring to ascertain if she would obey the orders of her superior, but Mrs. Andrews would not promise to do so. After a meeting that lasted several hours, she was discharged for insubordination. Nuckolls, president of the local union, testified that Mrs. Andrews would not agree to follow Tubbs’ orders. It is not disputed by appellant that she was told on March 12 that she was being “fired” for insubordination.

To reiterate, it is appellant’s contention that not having served her with written notice, as called for in the company’s agreement with the union, appellee was not entitled to offer any proof as to the reason for her discharge. In other words, she contends that, to recover, it was only necessary that she establish that she had been damaged, and her testimony as to damages dealt with loss of pay, it being contended that she was entitled to be paid from the date of her discharge until the termination of the contract, a period of 19 months.

We do not agree that, under the circumstances herein, the failure to give notice barred the raising of the defense of insubordination. Let it be borne in mind that we do not have here a case of an employee being discharged without knowing the reason therefor; nor was it even necessary for Mrs. Andrews to guess at the reason. During a period of several hours, her insubordination was discussed with both company and union officials. As previously stated, there is no contention that she did not know the reason for her discharge.

In the New Hampshire case of Couture v. Hebert et al, 42 A. 2d 691, the question of the necessity for a written notice was before the court. There, Couture instituted action against Hebert for breach of contract. A contract had been entered into whereby Hebert agreed to employ Couture for a period of one year at a salary of $25.00 per week for the first six months, and a salary of $15.00 per week for the remainder of the year. A clause was included which provided that the contract could be terminated by the employer upon giving 30 days written notice to the employee, and upon payment of four weeks salary. Couture immediately assumed his duties and rendered services. Shortly thereafter the employer orally notified the employee that he was discharged and his services no longer required. The question of cause for discharge was not involved. The trial court held that, because no written notice was given (as required by the contract) Couture was entitled to recover for the entire term of the contract, and rendered judgment for $1,040.00. On appeal, the New Hampshire Supreme Court reversed this judgment, stating:

“ ‘It [a written notice] is merely the vehicle used * * # to transmit * * * information.’ [Citing cases]

“ ‘ It is an old maximum of the law that it compels no man to do a useless act, and the principle was applied in the time of Coke, if not before, to the case of conditional promise.’ 3 Williston, Contracts, Rev. Ed., p. 2008.

“The oral notice in the instant case gave the plaintiff all the information he would have received had a written notice been given. He understood he was through, and acted accordingly. His conduct corroborates his understanding of what the oral notice meant. He was not prejudiced by failure to be given a written notice [citing cases,] and consequently is not entitled to greater rights than if a written notice had been given. If the latter had been given, he would have been entitled to receive four weeks ’ pay at the prevailing rate at the time, correctly found by the Court to be $25 per week and that is all he is entitled to receive now. ’ ’

Here, the purpose of the notice was to acquaint the union and Mrs. Andrews with the definite cause of her discharge in contemplation of a hearing before the grievance committee. The union received written notice, and appellant was told explicitly the reason for termination, and this, after a long discussion of her action in refusing to follow the orders of her superior. How then, was she prejudiced by failure to be given a written notice that could do no more than reiterate the oral notice? Let it be remembered that the failure to give the written notice did not preclude Mrs. Andrews’ right to go before the grievance committee, for the grievance provision of the contract provides that any grievance may be taken up by the employee or the shop steward within three working days after the occurrence, “and the foreman shall give his answer immediately if he can and in any event within twenty-four- (24) hours of the receipt of the grievance; and failing satisfactory settlement at the time the foreman gives his answer, the complaint shall then be immediately put in writing and signed by the employee, [emphasis supplied] and the foreman shall then put his decision in writing thereon.” If the employee is still dissatisfied, appeal procedures are provided, but Mrs. Andrews never did take the first step. She apparently preferred to follow her common law remedy. The record is clear that no complaint was made.

Under appellant’s theory, an employee could burn his employer’s property, steal it, or stay away from work for an indeterminate period of time, and upon being fired (specifically for one of these reasons), but without written notice, could recover wages for the period of the contract; the employer could not even testify as to the reason for discharge. Under the circumstances cited, we hold that there was substantial compliance by the company in the giving of notice, and appellant was not prejudiced by the failure to receive this notice in writing.

It is also asserted that the court erred in allowing appellee to introduce evidence of justification for appellant’s discharge, since appellee’s pleadings only amounted to a general denial of the material allegations. We find no merit in this contention. Appellant’s complaint alleged that her employment was “terminated without cause [emphasis supplied]. ” It is pointed out in 17A C. J. S. Contracts, Section 549 (B) 1070, that, under a general denial to a complaint which a plaintiff is required to prove in order to maintain his action, a defendant is at liberty to prove anything tending to show that the plaintiff’s arguments are untrue, and he may introduce evidence to disprove, wholly or in part, any fact which the plaintiff must establish to show his cause of action. He is permitted to offer evidence which tends to disprove the facts alleged by a plaintiff.

It was necessary that appellant show that she was discharged “without cause.” The proof offered by appellee was properly offered to disprove this allegation, it being appellee’s defense that the discharge was “with cause.”

Affirmed.

George Rose Smith, Jones and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. Involved here is a collective bargaining contract requiring the employer, upon discharging an employee, to give both the employee and the president of the union, within twenty-four hours, a written statement of the reason for the discharge. We held, the third time this matter was before the court, Andrews v. Victor Metal Products Corp., 239 Ark. 763, 394 S. W. 2d 123 (1965), that the employee, as a member of the union, was entitled to the benefits of the contract provision on discharge, and was also entitled to seek redress by way of damages because of the employer’s failure to give the required written notice.

The majority opinion is this day holding that the employer, who has breached his contract by failing to state his reasons for the discharge of appellant in writing as required by the contract, can now come into court and show any justifiable reason for the discharge of appellant. If the majority opinion is followed to its logical conclusion, it would follow that the employer can disregard the breach of his contract by showing any reason which he thinks justifiable to sustain the discharge, even in a suit by the union to require the employer to re-instate the employee.

The right of discharge of a servant by a master generally, as distinguished from a contract requiring that an employer must specify the reason for discharge in writing, was pointed out by the Supreme Court of New Mexico in Kiker v. Bank Sav. Life Ins. Co., 37 N. M. 346, 349, 23 P. 2d 366, 368 (1933) It was there said:

‘ ‘ Generally, in an action for wrongful discharge, the employer may plead in defense any sufficient cause, though it may have been unknown to him at the time, though his real reason or motive may have been something else, and though another cause may have been expressly assigned. Williston on Contracts, §§ 744, 839; Labatt on Master and Servant, § 189; Page on Contracts (2d Ed.) § 3058; 18 E. C. L. 516; 39 C. J. 89.
But the parties of course have the right to stipulate the manner in which the employer may terminate the contract. If they stipulate that it shall be by written notice specifying the cause, a discharge specifying no cause, or an insufficient cause, would be wrongful. It follows that, under such a contract, a cause not specified would not be available in defense. Hughes v. Gross et al., 166 Mass. 61, 43 N. E. 1031, 32 L. R. A. 620, 55 Am. St. Rep. 375, cited; 18 R. C. L. 516; Mortimer v. Bristol, 190 App. Div. 452, 180 N. Y. S. 55.”

In addition to obliterating the provision of the collective bargaining agreement which required a written statement of the reasons for discharge, the majority opinion suggests that — since the president of the union received written notice and appellant was told explicitly the reason for her termination — there was a substantial compliance with the contract provision requiring a writing. Thus, concludes the majority, the failure to give written notice to Mrs. Andrews did not preclude her right to go before the grievance committee within three working days after the occurrence, nor her right to prosecute an appeal therefrom. There are two answers to this suggestion:

ONE: The same suggestion was made in Andrews v. Victor Metal Products Corp., 239 Ark. 763, 394 S. W. 2d 123 (1965), and we said:

“Finally, it is insisted by the employer that Mrs. Andrews should have exhausted her remedies under the collective bargaining agreement by first appealing to the grievance committee created by the contract. It appears, however, that it was the employer who first breached the contract; so it cannot complain of a later breach by the employee. ...”

TWO: The employee had the right to rely upon the provisions of the collective bargaining agreement requiring the employer to state in writing the reason for the discharge which would limit the issues before the grievance committee.

Furthermore, the record does not show that, within the three-day time limit for going before the grievance committee, Mrs. Andrews knew or had any knowledge that the president of the union had received a written notice in compliance with the contract.

If it were the intent of a lawyer to draft a collective bargaining agreement to require that an employee discharged for cause should receive written notice stating the reasons for the discharge, how could he have made it plainer than the provision in this instance?

For the reasons set forth, I would reverse and remand for a new trial.

George Rose Smith and Jones, JJ., join in this dissent.

       See Andrews v. Victor Metal Products Corp., 235 Ark. 568, 361 S. W. 2d 19; Andrews v. Victor Metal Products Corp., 237 Ark. 540, 374 S. W. 2d 816; Andrews v. Victor Metal Products Corp., 239 Ark. 763, 394 S. W. 2d 123.

      In the last appeal, we held that an individual employee may maintain an action upon a collective bargaining agreement to enforce rights that are personal as distinguished from those that accrue to the union as a whole.

      According to the evidence, when a dispute arises, the steward is due' to immediately investigate, and see if he can help in solving the difficulty.

      The company did comply with, that portion of the 'agreement requiring that the president of the union should be advised in writing by the company within 24 hours of the reason for the discharge.


author: George Rose Smith, Justice. Oarleton Harris, Chief Justice, John A. Fogleman, Justice,

text:
    Lloyd Cabbiness v. State
    5233
    410 S. W. 2d 867
    Opinion delivered February 6, 1967

      Don Langston, for appellant.

      Bruce Bennett, Attorney General; Lance Han-sham, Asst. Atty. General, for appellee.
   George Rose Smith, Justice.

On the night of November 4, 1965, someone broke into Teague’s Produce Store in Berryville and pried off the door of a safe. Apparently the intruder left without having taken anything. The appellant, Lloyd Cabbiness, a resident of Little Rock, was arrested the following night and charged with the burglary. Upon trial he was found guilty and sentenced to imprisonment for five years. He questions the sufficiency of the evidence and the trial court’s rulings with respect to physical exhibits offered by the State.

We find the prosecution’s testimony to be sufficient to support the verdict. On the day of the burglary Cabbiness, a private investigator and former school teacher, borrowed a car from a woman living next to him in an apartment house and drove to Berryville. That evening Cabbiness was seen in downtown Berryville several times between seven and eleven o’clock. He was accompanied by an unidentified woman (not the owner of the car). Charles Robbins, a Berryville policeman, testified that early in the evening he directed Cabbiness to a telephone booth near the Teague building and that later on he saw Cabbiness’s companion sitting in the car alone. There was other testimony from which the jury might have found that Cabbiness returned to the car with some tools and a flashlight, whereupon the couple drove hastily away.

At about two in the morning' an employee of the produce company discovered that the building had been broken into and that the door of a safe had been “peeled” off. That door had been insulated by a layer of a white chalky substance. Whoever wrenched off the door had damaged the layer of insulation, scattering the chalky substance over the floor.

Officer Robbins had made a note of Cabbiness’s car license number. With that information the police quickly traced the owner of the car and learned that Cabbiness had borrowed it. After Cabbiness was arrested the police found particles of a white chalky substance on the front floorboard of the vehicle. Laboratory tests proved that the substance taken from the car was identical with that found near the safe.

Upon the foregoing testimony the jury were warranted in concluding that Cabbiness was the person who broke into the Teague building. The appellant contends, however, that there is no proof that he had the requisite intent to commit a felony or larceny, because apparently nothing was stolen. The short answer to this argument is that a larcenous purpose can fairly be inferred from the violent attack upon the safe.

The police took samples of the chalky substance from the scene of the burglary and from the car used by Cabbiness. It is now contended that the State failed to prove all the links in the chain of possession from the taking of the samples to their delivery to the police laboratory. Jones v. City of Forrest City, 239 Ark. 211, 388 S. W. 2d 386 (1965). The gaps, however, were not serious ones. For instance, Sheriff Bishop testified that he took a sample from the floor, put it in an envelope, and delivered it to Officer Atkinson the next night. The appellant argues that the whereabouts of the sample between the time the sheriff obtained it and the time he turned it over to Atkinson was not accounted for. Presumably it remained in Bishop’s possession during that interval, but any doubt about that can be dispelled at a new trial.

After Cabbiness was arrested the police returned to his apartment and searched it, without a warrant. Among other things they found a revolver and some clothing. Before the trial began the defense attorney filed a motion to suppress this evidence on the ground that it had been obtained illegally. The court refused to pass upon the motion, saying that it was premature and that he would rule upon the admissibility of the evidence when it was offered.

"When it became apparent during the trial that the State was about to offer the fruits of the illegal search, counsel for the defense asked that the witness be placed on voir dire; that is, that his testimony be heard out of the presence of the jury. That request was denied. The witness was theta, permitted to describe the revolver and the other articles that had been found in Cabbiness’s apartment. After the matter had thus been brought to the jury’s attention the court finally sustained the objection to the evidence.

Despite the riding the prosecuting attorney later asked another witness if the revolver had been loaded or unloaded. The defendant’s objection to the question was sustained, but his motion for a mistrial was denied. Instead, the court polled the jurors individually and was assured by each one that he could erase from his mind the reference to the revolver.

We cannot approve such misguided zeal on the part of the prosecution. There is not, and could not have been, the slightest doubt about the inadmissibility of the revolver, not only because it was the product of an obviously illegal search but also because it had nothing whatever to do with the offense being tried. We have recently held that the introduction in evidence of a pistol having no connection with the crime in question is reversible error. Rush v. State, 238 Ark. 149, 379 S. W. 2d 29 (1964).

In simple fairness to the accused the motion to suppress the evidence should have been heard before the trial began, out of the presence of the jury. That procedure is required by Rule 41 (e) of the Federal Rules of Criminal Procedure and has been approved by many state courts. United States v. Blalock, 253 F. Supp. 860 (1966); People v. Holmes, 47 Cal. Rptr. 246 (1965); Farrow v. Maryland, 233 Md. 526, 197 A. 2d 434; Stevens v. Oklahoma, Okl. Cr., 274 P. 2d 402 (1954); Hill v. Tennessee, 211 Tenn. 682, 367 S. W. 2d 460 (1963). Some of the reasons for hearing the motion before the trial were given in the Blalock case, supra:

“Rule 41 (e) ‘is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt.’ Jones v. United States, 362 U. S. 257, 264, 80 S. Ct. 725, 732, 4 L. Ed. 2d 697, 78 A. L. R. 2d 233 (1960). The interruption of ‘the trial for such auxiliary inquiries impedes the momentum of the main proceeding and breaks the continuity of the jury’s attention.’ Nardone v. United States, 308 U. S. 338, 342, 60 S. Ct. 266, 268, 84 L. Ed. 307 (1939). A separate hearing also enables the defendant to testify on the collateral issue of suppression without waiving his privilege against self-incrimination on the merits of the charge or creating the possibility, if he were to testify on the suppression issue before the jury but stand mute on the merits of the charge, that the jury would draw the prohibited adverse inference from his conduct.”

We presume error to have been prejudicial in the absence of an affirmative showing to the contrary. Connelly v. State, 232 Ark. 297, 335 S. W. 2d 723 (1960). We are inclined to think that, on balance, the court’s polling of the jury tended to emphasize the error rather than to correct it. Only a very unusual and very conscientious juror would publicly confess himself to be so weak-minded as to be unable to obey the court’s admonition to disregard certain testimony. The sure way to avoid the possibility of prejudice is to exclude the incompetent evidence in the first place. If we should uphold the procedure that was followed in this case there is hardly any limit to the inadmissible testimony that might reach the jury’s ears.

Reversed.

Harris, C. J., and Fogleman, and Jones, JJ., dissents.

Oarleton Harris, Chief Justice,

dissenting. I cannot agree that the court committed reversible error by denying appellant’s motion for a mistrial, because of reference to the pistol. It is true that counsel for appellant had, prior to the commencement of the trial, moved to suppress the evidence involving the clothing and revolver that were found in appellant’s apartment, on the ground that these items had been obtained illegally. I agree with that particular contention, since no search warrant had been secured. However, appellant’s counsel subsequently agreed that these articles could be admitted for purposes of identification, in counsel’s words, “for no other purpose.” Later, counsel reiterated his consent for that purpose. In Frazier v. Sewell, 241 Ark. 474, 408 S. W. 2d 597, the appellant requested an instruction, which was refused, and later appellant withdrew the request for the instruction. But on appeal it was contended that, in failing to give the instruction, the court had erred. We disagreed, saying:

u* * * qipg withdrawal of the requested instruction actually meant that appellant no longer wanted that instruction, and she was thereby placed in the same status as though the instruction had never been requested. We have repeatedly held that a party cannot complain of a trial court’s failure to give an instruction unless same is requested.” :

It seems to me that the same situation exists in the case before us. Counsel’s agreement for the articles to be offered, though only for a specific purpose, had the effect of withdrawing the motion to suppress. The articles were never exhibited to the jury; all were in a sack together, and every objection to their introduction as evidence was sustained by the court. The reversal of this case by the majority seems principally to be predicated upon the question by the Prosecuting Attorney as to whether the revolver found in the apartment had been loaded or unloaded. The objection to this question was sustained, but the motion for mistrial was denied, the court telling the jury to disregard any reference to the pistol. The jurors were then polled individually, and each answered that, in determining the guilt or innocence of the accused, he could completely disregard any reference to the revolver. The court was careful and specific, asking such questions as, “You are sure about it?” “Is there any doubt in your mind?” “You can completely disregard it in your deliberations in this case?” As stated, all jurors answered in the affirmative.

We have repeatedly held that an admonition to the jury to disregard improper questions or answers occurring during the trial cures any possible error, and the only exception to this rule is where the testimony is so prejudicial that an admonition cannot cure it. In Crawford v. State, 204 Ark. 748, 164 S. W. 2d 898, the trial court first admitted certain evidence that it subsequently decided was inadmissible. From the opinion:

“Later on and before the case was sent to the jury the court instructed the jury to disregard the testimony objected to entirely as he doubted whether or not it would shed any light on the state of mind of the parties or on the question as to who was the probable aggressor.

“Relative to the erroneous admission of evidence during the progress of a trial and the subsequent withdrawal thereof before the case was submitted to the jury this court, in the case of Goynes v. State, 184 Ark. 303, 42 S. W. 2d 406, quoted from 38 Cye. 1440 as follows: The general rule is that if inadmissible evidence has been received during the trial, the error of the admission is cured by its subsequent withdrawal before the trial closes, and by an instruction to the jury to disregard it.”

In Kasinger v. State, 234 Ark. 788, 354 S. W. 2d 718, we said:

“Appellants contend that error was committed when the Sheriff of Baxter County was asked by the State’s attorney why he moved the appellants to a jail in Yellville, Marion County, and he replied, ‘They’d broke jail here before;’ also, error is asserted because of a question asked appellant Ray Kasinger by the State’s attorney, ‘How many times has Jack Gregory arrested you?’ In each instance, the Court instructed the jury not to consider this question and answer. In Davis v. State, 155 Ark. 245, 244 S. W. 750, the prosecuting attorney made certain remarks which the appellant contended to be prejudicial, but this Court said:

“ ‘It will be noted that the court instructed the jury to disregard the remarks made by the prosecuting attorney and this, we think had the effect to cure any prejudice that might have resulted to the defendants from the remarks.’ ”

Likewise, in Washington v. State, 227 Ark. 255, 297 S. W. 2d 930, a similar situation arose. We said:

“The next assignment of error relates to the following answer given by Officer Jack Morgan when counsel for appellant asked him whether he knew appellant was a minor about sixteen years of age: ‘Yes, we had him one other time.’ Appellant’s objection to the answer was promptly sustained by the trial court and the jury admonished not to consider it. If it be assumed that the answer was unresponsive to the question and erroneously given, any possible prejudice arising therefrom was cured by the court’s action.”

Also, in Knight and Johnson v. State, 228 Ark. 502, 308 S. W. 2d 821, we said:

“Harper was asked by the State if he received any money from any of the accused by way of restitution, and in replying in the affirmative he mentioned appellant’s name. The witness was immediately interrupted by an objection on behalf of the appellant. Thereupon the court cautioned the jury to disregard the testimony. The court also asked the jurors if they could do that and all of them held up their hands to indicate they could. From this it is hard to see how any prejudice could have resulted to appellant.”

Literally dozens of similar eases could be cited, but no point would be served in adding to the aforementioned citations, which clearly show that an admonition to the jury to disregard particular evidence is entirely sufficient, unless “it is manifest that the prejudicial effect of the evidence on the jury remains, despite its ex-elusion and influences their verdict.” I certainly cannot agree that the Prosecuting Attorney’s reference to the pistol makes manifest that the jury was prejudiced. The majority cite Rush v. State, 238 Ark. 149, 379 S. W. 2d 29, where we held that the introduction in evidence of a pistol, having no connection with the crime, was reversible error. Let it be quickly, pointed out that in Rush, the defendant was being tried for murder — not burglary, the state charging that Rush had entered into a conspiracy to kill his stepfather, the elder Rush having been shot to death. Admittedly, the pistol there offered was not in the alleged crime, though it was of the same caliber as the murder weapon (a .22 pistol, the murder weapon being a .22 rifle), and there was evidence that some of the conspirators had been firing the pistol which was introduced. We said:

“ * * * qqLe pigtol in question is very heavy for a .22 caliber; it has a 9-inch barrel, and is rather wicked looking. The very fact that the pistol was admitted in evidence could have had a tendency to confuse the jury, notwithstanding there is no contention on the part of the State that the pistol was used in the killing. ’ ’

It is easy to see that, in a murder case, particularly where some of the alleged conspirators had been using the pistol, the jury could, in their minds, tie this in with the murder, but no such situation exists in the instant ' case. In the first place, there was no allegation, nor evidence anywhere in the record, that a pistol had been used; the pistol was not even shown to the jury, nor was an answer given to the question by the Prosecuting Attorney, the court sustaining the objection. I do not see how prejudice arises against a defendant simply because he had a pistol in his home. I daresay that thousands of good citizens individually keep a pistol in their respective homes for the purpose of protection. No one considers these citizens “dangerous” or “bad” because of this fact.

To summarize, counsel for appellant agreed that the items could be offered for identification; this in my view, means that he had abandoned his motion to suppress. The court sustained every objection made to offering these items in evidence, and when the pistol was referred to by the Prosecuting Attorney, the court quickly admonished the jury to disregard the question, and then took the additional precaution of polling each member individually for the purpose of ascertaining whether any prejudice resulted. Finally, I reiterate that keeping a pistol in one’s home does not establish, or even indicate, that one is of bad character, or likely to commit unlawful acts. I respectfully dissent to the reversal.

John A. Fogleman, Justice,

dissenting. I concur in the dissent of the Chief Justice. In Sharp v. State, 51 Ark. 147, 10 S. W. 228, in reversing a conviction of a defendant because of questions asked and a remark made by the trial judge, this court quoted with approval the California Court when it said:

‘ ‘ * * * From the high and authoritative position of a judge presiding at a trial before a jury, his influence with them is of vast extent, and he has it in his power, by words or actions, or both, to materially prejudice the rights and interests of one or the other of the parties. By words or conduct he may on the one hand support the character or testimony of a witness, or on the other may destroy the same, in the estimation of the jury; and thus his personal and official influence is exerted to the unfair advantage of one of the parties, with a corresponding-detriment to the cause of the other.”

I cannot see any reason why the statements of a trial judge admonishing a jury not to consider specified matters arising during the course of a trial cannot be presumed to have the same influence for fairness as they can for unfairness, particularly when the judge takes the extra precaution to inquire of each individual juror if he would and could abide by an admonition of the court.

To reverse this case is to say that the offering of the questioned evidence was so prejudicial to the appellant that even the tremendous influence of the trial judge could not by any means remove the prejudice and that the jurors, depended upon to arrive at just and true verdicts, could not be depended upon to give an honest answer to the judge’s inquiry. I am unwilling to say this in the circumstances of this case.

      This quote is from Goynes v. State, 184 Ark. 303, 42 S. W. 2d 406.


author: G-eorge Bose Smith, Justice.

text:
    O. D. Pendergrass v. Vada Sheid
    5-4216
    411 S. W. 2d 5
    Opinion delivered February 6, 1967

      John Hormani HarJcey and Fred Livingston and Bill H. Walmsley, for appellant.
    No brief for appellee1.
   G-eorge Bose Smith, Justice.

At the general election held on November 8,1966, the appellant and the appellee were rival candidates for the office of State Bepresentative for the Fifth District, comprising Fulton and Baxter counties. Mrs. Sheid, the Democratic nominee, was certified as the winner by a vote of 4,542 to 4,488. Pendergrass, the Republican nominee, brought this action in the Pulton Circuit Court to contest the election. His complaint asserted that the votes of 84 specified electors should be declared illegal for various reasons, such as nonresidence, irregularities in absentee voting, and so on. This appeal is from an order dismissing the suit for want of jurisdiction.

We agree with the trial court. The Constitution provides that each house in the General Assembly “shall be sole judge of the qualifications, returns and elections of its own members.” Article 5, § 11. By Act 34 of 1875 the legislature prescribed the procedure for contesting -an election for State Senator or Representative. Ark. Stat. Ann. §§ 3-1213 to 3-1217 (Repl. 1956). That statute requires the contestant to give his adversary written notice of the points on which the election is to be contested. The parties then take their evidence by deposition, before the date on which the legislature is to assemble, and file it with the President of the Senate or the Speaker of the House, as the case may be. Thus the statute contemplates that the contest will be decided by the Senate or the House of Representatives, without a court proceeding of any kind.

We have repeatedly held, directly or by implication, that the judicial branch of the State government is without jurisdiction of election contests involving seats in the General Assembly. Irby v. Barrett, 204 Ark. 682, 163 S. W. 2d 512 (1942); State ex rel. Evans v. Wheatley, 197 Ark. 997, 125 S. W. 2d 101 (1939); Parrish v. Nelson, 186 Ark. 786, 55 S. W. 2d 922 (1933); Young v. Boles, 92 Ark. 242, 122 S. W. 496 (1909); see also State ex rel. Brooks v. Baxter, 28 Ark. 129 (1873). There is nothing contrary to those decisions in Matthews v. Bailey, 198 Ark. 830, 131 S. W. 2d 425 (1939), cited by the appellant. .That case merely held that the vote of a person appointed to the State Senate by the governor, contrary to the express language of Amendment 29, could not be counted. There the court was compelled to make a choice between two constitutional provisions, either of which might have been controlling. That is not the situation here.

The appellant urges us to adopt the position taken in cases such as Odegard v. Olson, 264 Minn. 439, 119 N. W. 2d 717 (1963), Rogosheske, J., concurring; People ex rel. Brown v. Board of Sup’rs of Suffolk County, 216 N. Y. 732, 110 N. E. 776 (1915); and Wickersham v. State Election Board, Okl., 357 P. 2d 421 (1960). In those cases the courts reasoned that even though each house in Congress or in the legislature is the sole judge of the ‘elections of its own members, that power to speak the final word does not prevent the courts from entertaining an election contest. Such a judicial proceeding was regarded as a convenient method of taking evidence about the conduct of the election and of reaching a tentative conclusion as to the winning candidate. The appropriate legislative body would then be at liberty to accept the court’s decision or to arrive at a determination of its own.

We have no quarrel with those cases, but they do not reach the problem now before us. Those decisions, if followed in Arkansas, would mean only that the General Assembly, if it chose to do so, might permit the courts to take jurisdiction of such an election contest as a means of gathering evidence to assist the Senate or the House in reaching its own conclusion. But, as we have seen, our legislature has not seen fit to adopt such a statute. Instead, its directive for almost a century has been that the contesting parties take their proof by deposition and submit it in the first instance to the appropriate branch of the General Assembly, bypassing the courts altogether.

We are not impressed by the appellant’s suggestion that the necessary statutory authority for a judicial contest is to be found in § 1 of Act 15 of 1879. Ark. Stat. Ann. § 3-1210. That section merely provides that in all suits to contest the election “of any State, district, circuit, county or township office,” the contestant must give a bond to insure tbe payment of any money judgment that be may suffer. We cannot take seriously tbe argument that this bare requirement of a bond was intended to confer upon tbe courts jurisdiction of election contests for every one of tbe offices mentioned. Tbe statute is evidently applicable only to those contests of which tbe courts otherwise have jurisdiction. Tbe case at bar does not fall within that category.

Affirmed.