author: George Pose Smith, J. Paul Ward, Associate Justice,

text:
    Allison v. Stroh.
    5-2071
    333 S. W. 2d 737
    Opinion delivered March 21, 1960.
    [Rehearing denied April 25, 1960]

      Festus 0.. Butt, for appellant.

      C. A. Fuller, Virgil Roach Moncrief and John Wo Moncrief, for appellee.
   George Pose Smith, J.

This is a will contest. The testator, Perry O. Bellville, a resident of Eureka Springs, died February 24, 1958, at the age of 87. His will had been executed four years earlier, on March 27,1954. Bell-ville was survived by two daughters, the appellant Vera Allison and the appellee Wanda Stroh. Mrs. Stroh contested her father’s will on the.ground of undue influence. The probate judge set the will aside, and the only question is whether his decision is against the preponderance of the evidence. Evans v. Sawyer, 228 Ark. 551, 309 S. W. 2d 25.

Many years ago Bellville came to Arkansas from Illinois and settled near Stuttgart, purchasing a 220-acre farm in Prairie county. Sometime in the 1930’s Bellville and his wife moved to Eureka Springs, but the two daughters, who were both grown and married, continued to .live in Arkansás county, at Stuttgart and DeWitt. Mrs. Allison, the younger sister, owned and operated a women’s clothing store at Stuttgart for twelve years or more. . In the early 1950’s she and Mrs. Stroh ran a similar store together in DeWitt for about twp years, but the venture was hot profitable. After that Mrs. Stroh either bought or'was given a half interest in her sister’s store at Stuttgart, but again their joint enterprise was unsuccessful. The partnership was dissolved, apparently without hard feelings on either side, by a written agreement dated January 1, 1954. Mrs. Stroh received about $4,000 in the liquidation of the enterprise, but Mrs. Allison testified that the business was really insolvent and that she was compelled to pay a substantial outstanding indebtedness.

The partnership between the sisters ended on January 1, 1954. Word that the venture had resulted in a loss undoubtedly reached Bellville at his home in Eureka Springs. He executed a new will, the one now in question, on March 27, 1954. This will is decidedly favorable to Mrs. Allison. She receives her father’s personal property, inventoried at about $10,000, and a life estate in certain Illinois and Eureka Springs real estate, with remainder to her children. The other parcel of land, the Prairie county rice farm, is left equally to the testator’s two daughters for life, with remainder to their children.

The contestant, Mrs. Stroh, had the burden of proving undue influence. Miller v. Carr, 94 Ark. 176, 126 S. W. 1068. We are of the opinion that the weight of the evidence fails to establish the essential elements of undue influence, as defined in this often-quoted language from McCulloch v. Campbell, 49 Ark. 367 5 S. W. 590: “As we understand the rule, the fraud or undue influence, which is required to avoid a will, must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must be specifically directed toward the object of procuring a will in favor of particular parties.” (Emphasis added.) To the same effect is Davault v. Parks, 190 Ark. 370, 79 S. W. 2d 68, where we said: “Before a will can be invalidated upon the ground of undue influence, there must be testimony proving or tending to prove that the influence was of such character as to destroy the testator’s free agency, in effect substituting another’s will in the place of his own, and the influence must be directed toward the object of procuring a will in favor of particular parties.”

Here the charge of undue influence rests upon only two circumstances: first, the testator’s unequal division of his estate, and, secondly, the assertion that Mrs. Allison had falsely represented to her father that her sister Wanda had defrauded her of about $30,000 in their mercantile ventures. Lumping these two circumstances together, we think it fair to say that the weight of the evidence indicates that Bellville executed a will favoring his daughter Vera because he believed that she had suffered a substantial loss in her dealings with her sister, and we think it probable that Bellville also was convinced that Wanda had acted dishonestly or at least unfairly.

Even so, the proof of undue influence does not meet the test laid down in the McCulloch case, supra. The appellee had the burden of proving that "Vera’s wrongful domination of her father destroyed hit, free will and that her false statements, if any were.made, were specifically directed toward the procurement of a will in her favor. Neither point is sufficiently established. Bellville, despite his age, was- mentally alert. He was living at Eureka Springs, 200 miles or more from Vera’s home at Stuttgart. The partnership was liquidated as of January 1, the will was executed on March 27, but there is no contradiction of Vera’s testimony that she did not visit her father until Easter, which fell on April 18 that year. The will was witnessed by F. O. Butt, an attorney, and we assume that it was prepared by him. It is impossible to believe that Vera was able to dominate her father from more than halfway across the state, and at a time when he was being guided by his own attorney. Moreover, the testator lived for almost four more years without changing the will, thus having ample opportunity to satisfy himself about the supposed charges against his older daughter.

Nor is there any direct proof whatever that Vera Allison maligned her sister for the particular purpose of inducing her father to execute a will in her favor. Whether she made the asserted misrepresentations at all is a sharply disputed issue of fact'; but if we as'shme that she was guilty of slandering her sister there is simply no positive proof to show that her wrongdoing 'was designed to bring about a favorable testamentary disposition of her father’s estate. That the will was actually ’favorable to her does not supply this gap in the proof; for in that event any will favoring one of the testator’s children would be subject to being set aside upon a showing that false statements had been made by the principal beneficiary about other members of the family.

Reversed.

Ward and Johnson, JJ., dissent.

Paul Ward, Associate Justice,

dissenting. The facts and circumstances in this case, as disclosed by the record, present such a close pivotal question that I cannot confidently say the trial judge reached the wrong decision.

It must be conceded that the trial Judge would have been justified by the record in making the following findings : [a] The testator was rather old (age 83) and in poor health when the subject will was executed; [b] He changed his will, giving appellant some $30,000.00 more than appellee; [c] He made the change because someone told him appellee had cheated appellant out of a large sum of money; [d] There appears no other reason for him to discriminate between his two daughters; and [e] If appellant had anything to do with informing her father of the alleged misdeeds of appellee, her action was unwarranted and done with a malign intent.

The only close question is the one posed in the last clause above. The correct answer must be gleaned from the testimony and circumstances disclosed from the record and from an appraisal of the weight given to the testimony of each witness based upon that witness’ appearance and demeanor. Since the trial judge had so much better opportunity to evaluate all these elements than I have, I am unwilling to substitute my judgment for his, and, therefore, respectfully dissent to the majority opinion.

Jim Johnson, Associate Justice, dissenting. The majority opinion cites the rule set out in McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590, and Devault v. Parks, 190 Ark. 370, 79 S. W. 2d 68, in support of their conclusion that the decision of the Probate Judge setting aside the will in question is against the preponderance of the evidence. The McCulloch case, supra, states that “the influence which, the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must be specifically directed toward the object of procuring a will in favor of particular parties.” (Emphasis added.) This rule was substantially restated in the Devault case, supra. There can be no question but that the rule set forth in these cases is the law in Arkansas. From a careful reading of the record in its entirety, I cannot say that the probate judge deviated from this rule in setting aside the 1954 will of Perry O. Bellville.

Mr. L. D. Spangler, a close personal friend and neighbor of the testator, a friend who was so close that he was remembered in the testator’s will, was called by the contestees as their witness. Mr. Spangler testified that the testator was sane. However, on cross-examination this friend and confidante testified as follows concerning an event that occurred just prior to the changing of the former will by the testator:

“He (the testator) came over to my home and he was almost crying and he said one of his daughters had, in her business transaction in a store down, I believe in Stutt-' gart, in settling up, one daughter had beat the other daughter out of something. If I remember right, it was something quite a bit over $4,000.00, now I just forget the amount. And he said, ‘I didn’t raise my daughters that way.’ And he said, ‘my will is going to be changed.’ And he said, ‘ The daughter that lost the money will get it back with good interest. ’ The one that had to pay the other daughter ...”

The record is silent as to how the testator obtained the information that caused him to change his will. The contestee, whom the record reflects had been schooled in dramatic arts, attempts to imply that the contestant herself gave this information to her father. The record does not reflect that the contestant ever dealt with the contestee unfairly, dishonestly or that she ever beat her out of a thin dime. It is true that the parties were associated in a partnership and that the partnership was dissolved without any hard feelings on either side. In fact, the actions of the parties indicate that they continued to have the utmost confidence in each other. The record reveals that after having entered into a business venture in DeWitt, which was dissolved, the contestee prevailed upon the contestant to leave her farm near DeWitt for the purpose of entering into a partnership with her in Stuttgart; that contestant did enter into the partnership, was given the full management of the Stuttgart business and it is undisputed that the volume of sales improved considerably under her management.

The majority opinion says that “it is impossible to believe that contestee was able to dominate her father from more than half way across the state.” I assume that the telephone lihes between Stuttgart and Eureka Springs are still in operation and were during the time in question. Apparently the Probate Judge believed while listening to the parties testify in person that the contestee gave this information to her father either through the mail, by telephone, or by some other means of communication for the sole purpose of causing him to change his will; that she sold her father upon the unfounded belief that contestant had committed a great wrong to contestee. I agree with the conclusion of the Probate Judge. It is undisputed that this information caused the testator to revoke his former will and execute a new will in 1954 and by this changed will the father reimbursed with “good interest” the $30,000 he was made to believe the offending daughter “beat” the cheated daughter out of, thereby reimbursing the victimized daughter and at the same time punishing the wrongdoer because “I didn’t raise my daughter that way.”

It is not my understanding of the McCulloch and Devault rule, supra, that the undue influence spoken of therein must reach the point where it is necessary for the influencer to actually have to hold the hand of the testator as he signs his name to a will. The question is, did the contestant by foul practice “beat” the contestee out of $30,000 in such a way as to break the heart and torment the soul of this father of 83 years and then tell her father of this mischief she had done her sister ? Did the contestant inflict this anguish and misery on her aged father to the point where he was impelled to seek relief by opening his bosom and revealing his secret and exposing the wrong of his offending daughter to a neighbor1? The contestant testified to the trial court that the first she ever heard of the claimed $30,000 loss was when contestee, at the reading of the will, boldly and brazenly charged that she, the contestant, had told this story against herself to her father. The trial judge who for two days heard every word of 212 pages of conflicting testimony, noted every inflection, observed the deportment of all parties and witnesses, believed the contestant and so do I. It is undisputed that the contestee knew the contents of the will and attempted to prevail upon the son of the contestor to prevent contestor’s presence at the reading of the will. It is further undisputed that contestee had discussed with the testator the value of the Eureka Springs property and also the value of property owned in Illinois relative to the reimbursement of the claimed $30,000 “beat.”

From this and an abundance of other testimony, the trial court, in effect, found that the author of the 1954 changed will was not Perry O. Bellville, the testator, but that the author of the $30,000 story was the author of the will the trial court set aside. Certainly, I cannot say that his findings were against the preponderance of the evidence.

For the reasons stated above, I respectfully dissent.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Jones v. Capers.
    5-2059
    333 S. W. 2d 242
    Opinion delivered March 21, 1960.

      James M. Hale, Tom Pearson, TJlys A. Lovell, W. B. Putman, for appellant.

      Little & Enfield, Thomas Harper, for appellee.
   Paul Ward, Associate Justice.

On August 26, 1958, J. Hal Jones and four other residents and taxpayers of Washington County filed a Complaint in Circuit Court for the use and benefit of themselves and all other taxpayers in said County against A. B. Capers, d/b/a A. B. Capers Co., Inc., and Hartford Accident and Indemnity .Company. (For the purposes of this opinion we may and will consider A. B. Capers as the sole defendant and hereafter so refer to him as such). The essential allegations set out in the several numbered paragraphs were substantially as follows:

2. On December 26,1956, the defendant entered into and signed a written contract with Washington County. Herein the defendant undertook and agreed to appraise all real property and all business, professional, commercial, and industrial property located in said County for the total sum of $85,000.00 to be paid to him by Washington County — the work to be completed by December 31, 1957 (a photostatic copy of the contract being attached, marked Exhibit A).

5. The defendant made and filed claims against Washington County for work allegedly completed and performed under and pursuant to said contract on the following dates and for the following amounts (it is shown that payments of $6,181.82 were made on each of the following dates: February 2, February 28, April 2, May 1, June 4, July 2, August 2, September 3, October 1, November 1 and November 30 — all in the year 1957). All of said claims were paid by Washington County on or about the dates above mentioned.

6. On March 19, 1958, the defendant made a claim under said contract in the total sum of $15,900.00 for appraisal work allegedly performed under the contract, and said claim was paid by said Washington County on or shortly after March 19, 1958. The total amount paid by Washington County to the defendant was $83,900.02.

7. The defendant has wholly and completely failed, neglected, and refused to keep and perform any of his promises, covenants, and agreements, as set forth in said contract and wholly, fully and completely breached each and every condition, promise, agreement and covenant set forth and contained in said contract; and by reason thereof Washington County and the taxpayers have thereof been damaged in the sum of $93,000.02.

The prayer was for judgment in the amount of $93,-000.02.

On December 20,1958 appellants filed an amendment to the above Complaint which purports to set out in detail the way and manner in which the defendant failed to comply with the contract. It refers to several paragraphs in the contract setting ont how each separate paragraph had not been complied with. It would serve no useful purpose to set out the amendment in detail but the following is sufficiently descriptive: The defendant breached Paragraph 2 of the contract in that the appraisal work was not performed by competent, trained and experienced appraisers; Paragraph 3 of the contract was not complied with in that the defendant failed to determine the description and ownership of each lot and parcel of land; Paragraph 7 of the contract was violated in that the defendant failed to furnish separate record cards for each unit of real estate, etc.; Paragraph 10 of the contract was violated in that defendant failed to make a careful investigation of the fair value of all types of land, failed to ask the owners what price they paid, etc.; and Paragraph 12 of the contract was violated in that the defendant failed to procure and furnish competent professional appraisers as witnesses during all hearings before the Board of Equalization, etc. To the above Complaint and Amendment the defendant filed a demurrer. The trial court, after giving appellants time in which to file other pleadings found that no other pleadings had been filed by appellants and thereon sustained the demurrer and dismissed the complaint as amended, entering judgment accordingly. From this action and judgment appellants prosecute this appeal.

For a reversal appellants rely upon two grounds: (a) They have a right as taxpayers to maintain this action; and (b) The Complaint states a valid cause of action.

(a) In support of the first ground appellants cite and rely on Article 16 § 13 of the State Constitution and on Revis v. Harris, 217 Ark. 25, 228 S. W. 2d 624. "VVe agree with appellants that the Constitution and the Revis case are both authority for the proposition that any citizen of any County may institute a suit in behalf of himself and all others likewise interested to recover money illegally exacted. It goes without argument, however, that before such suit can he maintained to a successful conclusion it must he based upon a complaint or petition that states a canse of action. The real question in this case then is whether appellants ’ Complaint states a cause of action, and it is the one which we now discuss.

(b) We gather from appellants’ argument and the decisions cited therein they are emphasizing the fact that the trial court could not sustain a demurrer to their Complaint without relying on facts which are not referred to in the Complaint. Stated another way, appellants’ argument is that the trial court applied to the Complaint what is known as a “speaking demurrer” which has been condemned by this Court, citing as authority Rider v. McElroy, 194 Ark. 1106, 110 S. W. 2d 492; Lawhon v. American Cyanamid and Chemical Company, et al, 216 Ark. 23, 223 S. W. 2d 806. We agree with the principle announced by these cases which is to the effect that a demurrer which, to be sustained must depend on facts not alleged in the complaint, is bad. Therefore, we can narrow the question down to this point: Did the trial court, in order to sustain the demurrer in this case, have to rely on facts which are not disclosed by the Complaint?

A careful reading of appellants’ Complaint reveals that it no where alleges the contract between the County and appellees was improperly entered into or that it was not legally binding upon Washington County; nor does it contain any allegation of fraud practiced by appellee upon the County Judge, the County Court or anyone else. Neither does the Complaint allege that the several claims filed by appellee and paid by the County were in any way illegal. The allegations upon which appellants apparently rely most strongly to state a cause of action are found in Paragraphs 5 and 6 of the Complaint. In Paragraph 5 it is alleged that the defendant (appellee) made and filed claims against Washington County for work allegedly completed and performed under and pursuant to said contract, in the amount and on the dates heretofore set out, totalling $68,000.02. It is further alleged that these amounts were paid by Washington County. In Paragraph 6 similar allegations are contained with reference to a claim for $15,900.00 which was paid by Washington County. It is appellee’s contention that appellants are making a collateral attack on the order and judgments of the County Court, and such an attack cannot legally he made, the contention being that the allowance of the County Court of said claims amounted to and was in fact an order of the County Clerk. In support of this appellee cites Monroe County v. Brown, 118 Ark. 525, 177 S. W. 40, where this Court said: “The County Court in allowing claims against the County acts judicially, and its judgment is not open to collateral attack except for fraud or lack of jurisdiction . . .” It is not contended in the case under consideration that the County Court of Washington County lacked jurisdiction to execute the contract with appellee or that the contract was procured by fraud. In the case of Strawn v. Campbell, 226 Ark. 449, 291 S. W. 2d 508, we held that the County Court had the constitutional jurisdiction to enter into a contract such as the one here involved and in that case we also said: “A county court acting within the powers conferred by the Constitution and statutes is a court of superior jurisdiction, and, where by statute special powers have been conferred and such special powers exercised judicially, its judgment cannot be impeached collaterally except for want of jurisdiction or errors apparent on its face”.

There can be no doubt, we think, that appellants here had a right to appeal not only from the order of the County Court approving the contract with appellee but also the right to appeal from the order of the County Court allowing and paying any one of these several claims presented by appellee. This was made clear in the case of Ladd v. Stubblefield, 195 Ark. 261, 111 S. W. 2d 555, where the court construed the case of Armstrong v. Truitt, 53 Ark. 287, 13 S. W. 934 and said: “The effect of that decision is to hold that § 50, Art. 7, of our Constitution, gives a resident citizen or taxpayer the right to appeal from an order of allowance against the county, whether he intervenes before or after the allowance was made”.

The argument of appellants is that the Complaint here does not show that the County Court approved the several claims of appellee and that, therefore, the demurrer should not have been sustained. The argument being further that since the trial court had to go out of the record in finding the County Court had approved the claims, that amounted to approving a speaking demurrer. "We cannot agree that this argument is sound. It is our idea that under our system of liberally construing the pleadings, as was announced in Stroud v. Barksdale Lumber Company, 229 Ark. 111, 313 S. W. 2d 376, the Complaint in this instance should be construed as asserting that the several claims presented by appellee were approved by the County Court. While the Complaint did not make that specific statement it does allege that the several claims were paid by the County Court which is tantamount to saying that the claims were allowed. Arkansas Statutes 17-701 provides-that no moneys derived from taxes shall be paid except on an order duly made by the County Court while in session and entered upon the record. Section 17-702 provides that all persons having demands against a County shall present the same, duly verified according to law, to the County Court for allowance or rejection. Section 17-703 states that before any claim shall be allowed by the County Court it shall be supported by an affidavit stating that it is correct, etc. Section 17-801 provides that whenever an allowance has been made by the County Court in accordance with the sections heretofore mentioned the County Clerk would be authorized to issue his warrant on the County Treasurer, etc. It appears very obvious to us then that if, as is alleged by appellants, appellee’s claims against the County were paid it must be presumed that said claims were properly allowed by the County Court. There is a legal presumption that officers act in accordance with the law. In the case of West 12th Street Improvement District No. 30 v. Kinstley, 188 Ark. 77, 63 S. W. 2d 980, it was contended that no appropriation had been made for the formation of an Improvement District. In answer to this contention the Court used language which we think is applicable here, it said: ‘ ‘ The county court is a court of superior jurisdiction, and, in making the orders, was dealing, with a subject matter over which it was given jurisdiction by the Constitution, and it must be presumed that all necessary steps were taken in the absence of a showing to the contrary, and, if it was necessary that an appropriation be first made by the levying court, that this was done”. Applying that principle to the facts here we must conclude that since the law required a claim to be approved before it was paid, the allegation (in the Complaint) of payment carries with it the legal presumption that it had been approved. This principle applies particularly in this case where there was no allegation in the Complaint to. the contrary. The above conclusion is confirmed by the holding in Phillips v. Rothrock, 194 Ark. 945, 110 S. W. 2d 26, where, at Page 953 of the Arkansas Report, the Court said: “. . . that when any duty is required of a public officer, unless there is something to indicate the contrary, it will be presumed that he performed the duty according to law. The presumption is also that the officer will perform his official duty”.

It is our conclusion, therefore, from what we have heretofore said that appellants’ complaint did not state a cause of action and that the trial court was correct in sustaining appellee’s demurrer.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Hughes v. Firemen’s Relief And Pension Fund.
    5-2060
    333 S. W. 2d 716
    Opinion delivered March 21, 1960.
    [Rehearing denied April 25, 1960]

      Joe Holmes, for appellant.

      Henry W. Gregory, Jr., and H. Murray Claycomb, for appellee.
   Sam Robinson, Associate Justice.

In the year 1952 the appellant, David C. Hughes, began working as a fireman for the City of Pine Bluff Fire Department. On May 15, 1956, while not on duty, he received serious injuries which render him unable to perform the work of a fireman. He applied to the Board of Trustees of the Firemen’s Relief and Pension Fund for the City of Pine Bluff, hereinafter called the Board, for a pension under the provisions of Ark. Stat. § 19-2205. The Board refused to award the pension on the ground that the injuries were the result of Hughes’ own misconduct and that because of such misconduct he had been discharged from the Department. Hughes appealed to the circuit court. There the court granted the pension and the Board appealed to this Court. Firemen’s Relief v. Hughes, 229 Ark. 730, 318 S. W. 2d 145. In that appeal this Court reversed the judgment because Hughes had not complied with Ark. Stat. § 19-2206, which requires that an applicant for a pension based on disability mqst file with the Board certificates of such disability. In that case, however, this Court pointed out that the Pension Board was still at liberty to prove its contention that Hughes is not entitled to receive a pension because of alleged misconduct resulting in the disabling injuries and his discharge from the fire department. Subsequently Hughes filed certificates of disability and the Board for the second time refused to grant the pension. Hughes again appealed to the circuit court. There the action of the Board was sustained and the appeal was dismissed. Hughes then appealed the case at bar to this Court.

The record shows that Hughes was injured on May 15, 1956. On the 28th day of June he was suspended by the chief of the fire department because of his conduct in making an unprovoked attack upon a citizen of the community. The Civil Service Commission sustained the suspension and discharged him permanently. Hughes appealed to the circuit court the order of the Commission discharging him. There, after a hearing on the merits, the order was sustained and the appeal was dismissed.

The original act providing for pensions for city firemen is Act No. 491 of 1921 (Ark. Stat. § 19-2201, et seq.). As originally adopted, the Act provided for a pension for disability only in the .event the injury was sustained “while in, and in consequence of, performance of his duty as such fireman”. By Act No. 76 of 1955 the original Act was amended by deleting the words “while in, and in consequence of, performance of his duty as such fireman” and substituting therefor “except while actually performing work in gainful employment outside of the Fire Department”. Section 10 of the 1921 Act (Ark. Stats. § 19-2210) provides: “. . . In the event the Chief or any member of the Fire Department shall be removed or discharged without just cause, such removal or discharge shall not in any way affect the right of such person to the benefits of this act, and at the time of the discharge or removal of any such person, the board hereby created shall investigate and determine whether such removal or discharge was without just cause or not, and shall make a report of its findings, and any person feeling himself aggrieved by the decision of such board shall have the right to appeal therefrom to the circuit court of the county in the method now provided for appealing from decisions of the justices of the peace in civil cases. . . .” Of course, it will he noticed that the Act provides that no member of the fire department may be removed or discharged without just cause, but the Act does not provide that such a member may not be discharged with just cause.

Hughes appealed to the circuit court from the order of the Civil Service Commission discharging him, and after a hearing on the merits the order was sustained and the appeal dismissed with prejudice. There was no appeal to this Court from the action of the circuit court in sustaining the action of the Civil Service Commission discharging Hughes. It necessarily follows that there has been a final determination by a court of competent jurisdiction that Hughes was discharged with just cause. He was never awarded a pension by the Pension Board. If Hughes had been awarded a pension and later committed some act that would constitute just cause for his discharge, perhaps he or his family still could collect the pension. Ark. Stats. § 19-2210. But he was discharged with just cause, as has been determined by the circuit court, for doing the act which caused his disability, and he did not appeal from that judgment.

The right to a pension is purely statutory. Hughes contends that according to the wording of Act No. 491 of 1921 as amended by Act No. 76 of 1955 he is entitled to a pension because at the time he was injured he was not working at some gainful employment outside of the fire department. According to his theory, a fireman would be entitled to a pension if injured while committing some very serious felony and he was then discharged with just cause by the Commission because of such an act. We do not think the statute is subject to that construction.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Everett v. State.
    4968
    333 S. W. 2d 233
    Opinion delivered March 21, 1960.

      Lightle and- Tedder, Eldridge and Eldridge, for appellant.

      Bmce Bennett, Attorney General, by Aneil M. Reed, Asst. Attorney General, for appellee.
   Jim Johnson, Associate Justice.

This is a criminal case. The appellant, C. E. “Doc” Everett, was arrested December 17, 1958, and charged with first degree murder of one, Troy Lee Burks.

Everett was, at the time, the owner and operator of “Doc’s Club”, a beer tavern located on Front Street, Bald Knob, Arkansas.

Burks, a member of the U. S. Air Force, stationed at Jacksonville Air Base, was with two civilian companions, John Barger and Milton Brady. They had met at North Little Rock the afternoon of Burks ’ death and after a few beers proceeded North on Highway No. 67, making numerous stops for additional drinking.

Both Barger and Brady had felony records and by the time of trial Barger was again in the State Penitentiary. Brady had a long record of drunkenness and fighting. All three were on a drunken spree the night- of the trouble.

They arrived at Doc’s Club just after 9:00 p.m. They were loud and boisterous and began causing trouble. The cashier at the counter first tried to find the police but being unsuccessful - called Everett who was asleep in his bedroom in the rear.

Appellant came out front and tried to reason with the three. Brady, the most drunken and rowdy, reached across the counter for Everett, who then shoved him from the stool upon which he had been- sitting.

Prom that point events moved swiftly and just what happened varied with the testimony of the witnesses. Except for the testimony of convict Barger, all other eyewitnesses generally' agreed that Everett moved to his right to the open end of the counter and that he and Burks met at that end of the building. They engaged in a short scuffle, Burks either hitting or choking Everett who in turn was hitting Burks.

Everett, thinking that he “was about to be attacked by all three drunks” had taken his gun from behind the counter and was using it to club Burks. In some unknown manner it fired, shooting Burks in the neck just below the left ear. None of the witnesses (except Barger) saw the gun prior to the shot. None saw appellant shoot the pistol. All agree he hit at Burks more than once. He thought he “hit him two or three times before the gun went off.” Everett’s testimony was to the effect that the shot was entirely accidental.

Following on the heels of a bitterly contested “Wet-Dry” election, feeling ran high in the community. Everett petitioned the court for a change of venue, which was denied. The case Avas then tried in the White Circuit Court in July 1959.

The State used only one eyewitness, the convict Barger, to prove their prima facie case. They then were permitted to use numerous officers to prove the finding of a knife near the body of the deceased, and a set of similar knives in the “block”. No witness testified that the deceased used a knife, nor did the defendant ever claim such as a defense. The trial resulted in a verdict and judgment of second degree murder and a sentence of eighteen years. From such judgment comes this appeal.

In addition to eight assignments of error contained in the Motion for a NeAV Trial, appellant argues the court erred in refusing to grant a change of venue. This latter argument AArns the closest question presented for our consideration. We will not here discuss this and other assignments raised by appellant except those upon which this opinion rests.

Assignments numbered 1, 2, and 3 in the Motion for a New Trial pertain to the same general legal principles and will be here discussed in the order in which they were made. The assignments are as follows:

1. The court erred in permitting the State of Arkansas to offer incompetent and immaterial evidence relative to a certain knife and other instruments upon presentation of the State’s case. That the only evidence otherwise offered by the State revealed no connection with the incompetent evidence. That the only purpose of such evidence was to inflame the jury and induue in their minds a belief that the defendant Avas trying to frame a defense which in truth and in fact the defendant at no time presented.

2. The court erred in permitting the State to attempt to impeach the defendant’s Avitnesses Grene Blount and Billie Hughes, upon matters concerning Avhich they were not interrogated upon direct examination, but about which the State inquired upon cross-examination, and for such purposes made them witnesses for the State — namely, relative to the finding of a knife near the body of the deceased.

3. The court erred in permitting the State to offer as rebuttal evidence transcribed records in a purported effort to impeach the testimony of the defendant’s witness Gene Blount concerning the matters mentioned in paragraph 2 above and which were brought out wholly by the State on cross examination.

Relative to the first assignment, the record reveals that there were numerous eyewitnesses to this homicide. The State, after introducing the testimony of only one of these eyewitnesses, on its own case in chief called officers Bolin, Mitchum, Price, Varnell, Clayton and Neighbors, whose testimony was used chiefly to introduce a butcher knife, a set of steak knives and a purported finger print of appellant on a fork similar to those on the steak set. The butcher knife was first introduced by the evidence of officer Bolen who testified: “A lady said something about a knife, and she gave me a knife.” This officer had previously investigated and inquired about weapons. He had examined the body but had not seen or noticed a knife.

The appellant throughout the trial made timely objections and exceptions to the testimony relative to these items being admitted in evidence. At one . point in the case, the court ruled:

“There was some testimony by the officer down there that night that the knife was given to him that was supposed to have been involved in the fracas, that is the reason this testimony has now been permitted for whatever it is worth, if it is not connected, then you may renew your motion.”

At no point in the case was the knife, the steak knife set, or the fork in any way identified as having been used by either the defendant, or the deceased, or to have any connection with the affray, yet by the close of the State’s testimony the court was ruling that they Avere admissible in evidence.

In 20 Am. Jur. § 247, Evidence, we find the following:

“Relevancy has been defined as that which conduces to the proof of an hypothesis which, if sustained, would logically influence the issue.”

Footnote 3 at page 241 of the same volume cites Tyrrell v. Prudential Insurance Company, 109 Vt. 6, 192 A. 184:

“The test of admissibility of evidence is whether the fact offered, in proof affords a basis for rational inference of the fact to be proved.”

The fact to be proved by the prosecution in the case of C. E. “Doc” Everett was that he, the appellant, committed murder in the second degree, second degree murder requiring «, proof by the prosecution that said killing was done with malice aforethought.

When considered with the other evidence presented by the prosecution, Ave find the introduction of the mass of testimony relating to the “knife” would have no bearing on the proof required by the State to support a conviction of second degree murder. Therefore, it was incompetent evidence.

In McCabe v. State, 210 Ark. 1076, 199 S. W. 2d 945, this Court said again:

“As has been said so often, prejudice or non-prejudice may result from the nature of testimony offered, the ' manner in which it is presented, the circumstances Avhich give rise to questions or answers, the emphasis placed by' Ávitnesses upon collateral issues not intended by the trial judge to go before the jury, and incidental phases of many kinds.”

. And in Elder v. State, 69 Ark. 648, 65 S. W. 938, Ave .said:

“There may or may not be more reason for doubt as to Avhether this evidence Avas prejudicial or not. But the rule is that evidence improperly admitted must be treated as prejudicial unless there is something to show that it was not. ” .

Of course, if the appellant in this case had based his defense on an attack by the deceased upon his person with a knife, then the introduction of this evidence by the State would have had some relevancy but such was not the case. Therefore, the evidence .about the knife was inadmissible because of its lack of relevancy.

Assignments Nos. 2 and 3 raise the same legal questions. Therefore, they are discussed together. For brevity, only the questions raised relative to the testimony of witness Gene Blount will be treated here.

The record reveals that on cross examination of defendant’s witness, Blount, the State asked questions concerning the “knife” and then attempted to impeach or discredit the witness by reading from a purported statement and asking him if he had not made statements contrary to those being made in court.

In rebuttal, the State was permitted by the court to play to the jury an alleged recording of an examination of the witness Blount concerning the knife by the prosecuting attorney the night of the affray. Timely objections were made by the defendant.

In considering the question here presented, this Court has said, in effect, many times that while it is proper to permit a witness to be asked as to specific acts affecting his credibility, yet if such matters are collateral to the issue he cannot, as to his answer, be subsequently contradicted by the party putting the question. See: McAlister v. State, 99 Ark. 604, 139 S. W. 684.

The rule that one may not impeach his own witness is too well known to require citation.

A well-known exception, however, is that where the testimony surprises the one offering it — as in this case the State — they may then offer prior contradictory statements if a proper basis of surprise is claimed. In the instant case the State claimed no surprise. On collateral-matters, however, the exception to the main rule does not exist. In the case at. bar we find that these were wholly collateral matters that had no place in the trial. See: Eddington v. State, 225 Ark. 929, 286 S. W. 2d 473; and Hawhins v. State, 223 Ark. 519, 267 S. W. 2d 1.

For the errors indicated, the judgment is reversed and the cause remanded for a new trial.

Harris, C. J., and McFaddin, J., dissent.


author: Carretón Harris, Chief Justice. Jim Johnson, Associate Justice,

text:
    Roberts v. Love.
    5-2072
    333 S. W. 2d 897
    Opinion delivered March 28, 1960.
    [Rehearing denied May 2, 1960]

      B. Ball, for appellant.

      Philip E. Dixon, Duval L. Purkins, for appellee.
   Carretón Harris, Chief Justice.

On March 3, 1959, appellant, a practicing attorney of Warren, Arkansas, was notified by a deputy sheriff of Bradley County that Circuit Judge Gr. B. Colvin, Jr., had requested Roberts to appear at the court house. Upon arriving at the court house, appellant found that the Circuit Court was in session, and that A. C. Duncan, a Negro, was charged by Information with the crime of assault with intent to rape, the charge relating to the alleged attempt to rape a white high school girl. Judge Colvin appointed appellant to defend the Negro. After talking to the defendant in a private consultation room, appellant returned to the courtroom, and observed that a representative of the local newspaper, “The Eagle Democrat”, had obtained permission from the court to take pictures. Appellant objected to the taking of pictures, and the court withdrew its permission. Upon being asked to enter a plea, Roberts moved that the court commit the defendant to the State Hospital for thirty days observation. Following remarks, hereinafter set out, by the prosecuting attorney and judge, the motion was granted.

On March 5th, in its regular weekly edition, the following story (one column width) relative to the proceedings in the courtroom, appeared in the Eagle Democrat:

“ATTACKER SENT TO HOSPITAL T)OR OBSERVATION

Through a legal technicality, Judge G. B. Colvin, Jr., Tuesday,, was forced to send A. C. Duncan, admitted culprit in an attempted rape case here, to the State Hospital for 30 days of observation.

Duncan’s hearing before Judge Colvin was held Tuesday evening, and Paul K. Roberts, Warren attorney, was appointed as the Negro’s lawyer.

When Duncan was asked to make a plea of guilty or not guilty, Attorney Roberts arose and made a motion that he be sent to the State Hospital for observation. Roberts said he thought the Negro might be insane.

Prosecuting Attorney A. James Linder of Hamburg asked Roberts if he really thought that or if he was ‘grasping for straws’. Roberts assured the Court that he felt the Negro might be insane.

Judge Colvin deliberated about the matter for several minutes before granting Roberts’ motion, but he told those present that under the law, he was forced to do it.

At the start of the hearing, a representative of this newspaper received the permission of Judge Colvin to take candid camera pictures while the hearing was going on. After court started, however, Attorney Roberts raised an objection to the photographer’s being allowed to take pictures. No more were taken.

Duncan admitted to Chief of Police Tommy Dunawáy and to the Editor of The Eagle Democrat Wednesday that he raised the window of an East Central Street home here, went in the window, and attempted to attack a high school senior girl. He said he wasn’t being forced or coerced into making the statement, but that he was making it of his own free will.”

On September 12th, appellant instituted suit against appellees for libel, alleging that the story was libelous, being partly false, and the true portions ‘ ‘ slanted” to convey the impression that he was insincere in his defense, and had endeavored to defeat justice by trickery; that the publication was maliciously made in an effort to damage appellant’s professional standing, and that he had been damaged in his reputation, and had suffered great loss of business by reason of said publication. Compensatory damages were sought in the amount of $250,000, and a. like amount was asked for punitive damages.

Appellees demurred to the complaint, and subsequently moved that certain paragraphs of the complaint be stricken for the reason that said paragraphs were irrelevant, redundant, argumentative, and prejudicial. This motion was granted, the demurrer sustained, and the suit dismissed. From such judgment comes this appeal.

Appellant first asserts that the Circuit Judge should have disqualified himself. Ark. Stats. Anno., § 28-604 (1947), provides:

“The judge or juror may be called as a witness by either party, but, in such cases, it is in the discretion of the court to suspend the trial and order it to take place before another judge or jury; and where a party knows, at the time the jury are impaneled that a juror is to be called by him as a witness, he shall then disclose it, and the juror shall be excluded from the jury.”

We have held that a judge cannot testify for the state in a criminal case pending before him, Rogers v. State, 60 Ark. 76, 29 S. W. 894, but whether a chancellor- is disqualified to hear a case in which he is called to testify, is a matter within his discretion. Fidelity & Deposit Co. v. Cunningham, 181 Ark. 954, 28 S. W. 2d 715. Dean Ralph C. Barnhart of the University of Arkansas Law School, in an article, “Theory of Testimonial Competency and Privilege”, 4 Ark. Law Review, 377 (1950), discusses the matter of determining whether a judge should disqualify himself in situations where he will be called to testify. At page 389 of the article, it is stated: -

“The arguments that counsel will hesitate to make objections to the judge’s testimony, or that if counsel does object, it may lead to unseemly conflicts between the judge and the counsel, that testimony by the judge tends to give undue advantage to the party in whose favor he testifies, plus the procedural difficulties of the judge’s making the necessary rulings while he is on the stand, are not without weight. These considerations naturally are taken into account by the judge in the exercise of his discretion in continuing to sit or suspending trial and ordering it to take place before another judge after he has testified, and it is to be assumed that a proper exercise of discretion will avoid any real cause for objection.”

In the case before us, such a situation does not actually .arise, for here the judge was not called to testify, nor was any jury impaneled; rather, the litigation was disposed of by demurrer, and we find no abuse of discretion in the trial judge passing upon the pleadings.

While we think it immaterial in this litigation, we agree with appellant that the court erred in striking paragraphs 4A, B, C, D, and E. The article, obviously, cannot be classed as libelous per se. Any alleged libel, therefore, required innuendo denoting the libelous sense in which the words were intended. As stated in 53 C. J. S., Libel and Slander, § 162b 2(a), at page 249:

“Where the publication is defamatory on its face, or the meaning of the publication is plain and unambiguous, no innuendo, or explanation of the words published or spoken, is required. If, however, the words are not per se actionable, there must be an innuendo showing, by reference to facts stated in the inducement, the injurious sense imported by the charge. So, where the words used are susceptible of two meanings, one defamatory and the other harmless, plaintiff must by innuendo ascribe to them their defamatory meaning. * * *

An innuendo, when necessarily pleaded, forms an essential portion of the statement of a cause of action for defamation which must be considered in determining the legal sufficiency of the complaint.”

We therefore, in reaching onr determination of whether the article was libelous, consider each averment in appellant’s complaint.

Appellant only alleges one statement in the article to be actually false; i.e., the opening phrase, “Through a legal technicality * * *.” Appellant alleges as follows :

“A. ‘Through a legal technicality Judge Gr. B. Colvin, Jr., Tuesday was forced to send A. C. Duncan, admitted culprit in an attempted rape case here, to the State Hospital for 30 days for observation.’ That the above paragraph was false in that a 30 day observation period for any person accused of crime is a substantive right rather than a legal technicality; that the above paragraph was false and was known to be false when written and said paragraph was designed to leave the impression with all who read said article and did leave the impression with all who read said article that the action on the part of the attorney in moving the court for a 30 day observation period was an unwarranted and improper act of the attorney and that it was not properly a part of the attorney’s duty toward his client; that the above quoted paragraph was designed to leave the impression and did leave the impression with all who read same that Judge Gr. B. Colvin, Jr., was forced to commit the said A. C. Duncan for 30 days observation through chicanery practiced by the attorney and that the court was being forced to do something unusual and out of the ordinary; that the above quoted paragraph was designed to leave the impression that the court was forced to commit the accused to 30 days observation by a technical, legal loophole in which there was no merit whatever, which again was false.”

Appellant states that because of the use of the term “legal technicality”, which he alleges to be false, the complexion of the entire content of the article was changed. Appellant contends that the motion to send Dtmcan to the State Hospital for observation was a substantive right rather than a legal technicality. Webster’s New International Dictionary, 2nd edition, defines the word “legal” as “of or pertaining to law; arising ont of, or by virtue of, or included in law; based upon or governed by”. Technicality is defined as “a particular which is technical, or peculiar to any trade, profession, sect, or the like, especially in terminology or method of procedure; as, medical and legal ‘technicalities’.” It would therefore appear that a dictionary definition of “legal technicality” is simply “legal procedure.” Appellant asserts, however, that the actual meaning of the term is not controlling, to which we agree, and that the applicable rule is- found in Jackson v. Williams, 92 Ark. 486, 123 S. W. 751, wherein we said:

“* * * the rule now is that the words are to be taken in their plain and natural meaning, and to be understood by courts and juries as. other people would understand them, and according to the sense in which they appear to have been used and the ideas they are adopted to convey to those who heard or read them.”

Under this rule, appellant argues that the term legal technicality denotes to the public mind “chicanery”; implies that one prevails, not because of right, but rather through trickery; in other words, in the matter before us, that justice was .thwarted by unfair methods.

We do not agree with appellant that these words have that meaning to the general public. We are of the opinion that-the term “legal technicality” connotes, to those unfamiliar with legal terms, the impression that the matter, or question passed on, was decided on grounds other than the merits of the ease. By no stretch of the imagination can we visualize the words being understood to mean “to prevail by, trickery or chicanery.” Such a construction would, in our view, be unreasonable, and far removed from the plain and natural meaning of the term. Actually, it would appear that the motion made could properly be considered a legal technicality, inasmuch as the motion arose out of law, was governed by law, was peculiar to the legal profession, and is provided for under our procedure. In Words and Phrases, Vol. 40, page 524, as relating to criminal law, substantive law is defined as “that which declares what acts are crimes and prescribes punishment therefor. ’ ’ Procedural law is ‘ ‘ that which provides or regulates the steps by which one who, violates a criminal statute is punished.” Substantive law-is “that part of the law which creates, defines, and regulates rights, as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtaining redress for their invasion. ’ ’ Here, the two terms rather merge, for the right to an examination is included in substantive law, and the motion to obtain that right is a matter of procedure. Be that as it may, we find no merit in the contention, for even though the term be literally incorrect, we cannot agree that it carried with it the implications set out in appellant’s complaint.

It is not contended that paragraphs B, C, D, and E are false (in fact, appellant admitted in oral argument that all of the rest of the events reported in the article are correctly stated); it is only contended that the story was slanted and maliciously designed to defame appellant’s reputation. Appellant’s allegations from paragraph B through E, in full, are as follovys:

“B. ‘Duncan’s hearing before Judge Colvin was held Tuesday evening, and Paul K. Roberts, Warren attorney, was appointed as the Negro’s lawyer,’ The above quoted paragraph was maliciously designed to associate and did associate the name of the attorney and the ‘Negro’s Lawyer’ together in an attempt to invoke public hatred, contempt and in an attempt to damage plaintiff’s reputation and was an attempt to infer that the Attorney ’s character was similar to the alleged character of the Negro; that the above quoted paragraph was designed to conceal and did conceal the fact that the court appointed the attorney to the duty he entered upon and into and that the attorney could not refuse the appointment.

C. ‘ Prosecuting Attorney A. James Linder of Hamburg asked Roberts if he really thought (that the defendant might be insane) that or if he was “grasping at straws”. Roberts assured the Court that he felt the Negro might be insane. ’ The above quoted paragraph was designed to leave the impression and did leave the impression with, all who read said article that the attorney was insincere in making the said motion; that said motion on the part of the plaintiff was just a ‘legal technicality’ and could have no possible merit thereto.

D. ‘Judge Colvin deliberated about the motion for several minutes before granting Roberts ’ motion, but he told those present that under the law he was forced to do it. ’ The above quoted paragraph was designed to leave the impression upon all who read said article and did leave the impression upon all who read same that the alleged ‘legal technicality’ spoken of heretofore was so obnoxious to the court that the court reluctantly granted the said motion; that the above quoted paragraph proves that the above paragraph was written with evil design for the reason that the paragraph states ‘but under the law he (the court) told all present that under the law, he was forced to do it’; That the above quoted paragraph was designed to leave the impression and did leave the impression with all who read same that the attorney had through trickery, chicanery, and the use of a legal loophole been able to defeat justice;- that the above quoted paragraph was designed to mislead all who read same into the belief that the motion was improper when in fact said 30 day examination is generally accepted as a prerequisite to the final hearing of a case of the same nature as the one with which A. C. Duncan was charged.

E. ‘At’the start of the hearing, a representative of this newspaper received the permission of Judge Colvin to take candid camera pictures while the hearing was going on. After court started, however, Attorney Roberts raised an objection to the photographer’s being allowed to take pictures. No more were taken.’ The above quoted paragraph was designed to leave the impression and did leave the impression with all those who read said article that through the ‘legal technicality’ of the attorney the photographer was deprived of a right to take pictures; the above quoted paragraph was designed to conceal the fact that photographers are barred from courtrooms by law and said paragraph was a deliberate attempt on the defendants’ part to damage and defame plaintiff’s reputation.”

If the allegations in paragraph B constitute a cause of action, then libel is committed any time a newspaper reports that a white attorney represents a Negro in a criminal action. The assertion that the phrase stating that Roberts was appointed as the Negro’s lawyer “was an attempt to infer that the attorney’s character was similar to the alleged character of the Negro” transcends any reasonable interpretation that could be given the words, and the article plainly stated that Roberts was appointed.

In quoting the remark of the prosecuting attorney in open court, the newspaper demonstrated its good faith by stating “Roberts assured the Court that he felt the Negro might be insane.” Paragraphs D and E relate to a factual report of the proceedings, and we are unable to ascribe to this report the meaning, impression, or interpretation given it by appellant. Incidentally, photographers are not barred from courtrooms by law in this state; the prohibition arises under the Judicial Code of Ethics promulgated by the American Bar Association.

There are several defenses to a suit for libel, among them the conditional privilege accorded to newspaper reports of judicial proceedings. However, since we are of the view that the publication herein involved is not susceptible of a defamatory meaning, it is irrelevant whether the conditional privilege attaches, and we see no reason to discuss this defense. Likewise, though the factual report appearing in the article was admittedly true (except that appellant alleged the term “legal technicality” to be false), our conclusions are not based upon that premise, for we do not say unequivocally or dogmatically that one can never be libeled by a statement, even though true. Rather, we determine this litigation on the basis of the fact that when this article is construed as a whole, considering the words in their plain and natural meaning, according to the sense in which they appear to have been used, and the ideas such words would convey to those who read them — the article is not libelous. In other words, the article is not susceptible of a defamatory meaning.

••' We think the public. is generally cognizant of the fact that attorneys are appointed to represent indigent prisoners. The story plainly states in the second paragraph that appellant was appointed as the Negro’s lawyer. There is nothing in the article which even remotely indicates that Roberts sought this appointment or desired to represent the defendant. In view of public sentiment and the probable outraged feelings of the community toward a crime of this nature, we can readily understand appellant’s sensitivity to the article; we daresay that numerous instances have arisen wherein people have been embarrassed by seeing their name in print, though no wrongful act had been committed, but under our system of government and its democratic processes, a free press is assured. Certainly, this is as it should be. As stated in Article II, Section 6, of the Constitution of the State of Arkansas:

“The liberty of the press shall forever remain inviolate. The free'communication of thoughts and opinions is one of the invaluable rights of man; and all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse of such right.”

The article in question is not an abuse of this right.

We deem it proper, in view of appellant’s sincere feelings, to point out that in representing this defendant, he was only carrying out a duty imposed upon him by virtue of his profession, and as a member of the Bar of Arkansas. Canon IV of the Canons of Professional Ethics provides:

“A lawyer assigned as counsel for an indigent prisoner ought not to ask to be excused for any trivial reason, and should always exert his best efforts in his behalf.

We commend this attorney, as indeed any attorney should merit commendation, for his compliance with this Canon, which assures diligent representation to any prisoner, irrespective of the crime charged. The right of representation is fundamental to the American concept of justice. Here, Mr. Roberts, though apparently finding his duty distasteful, did not equivocate, nor seek to escape, from the responsibility assigned to him.

No cause of action having been stated by the complaint, the judgment is affirmed.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

dissenting. This case comes up after a demurrer to the complaint was sustained. It is the rule in Arkansas that allegations of a complaint are accepted as true on demurrer. Glenn v. Union Bank & Trust Company, 150 Ark. 38, 233 S. W. 798. This being so, I am convinced the appellant raised a prima facie case and the evidence should have gone to the jury. After all, there is only one basic question here and that is the effect of the article on the plaintiff’s reputation in the community. There are two ways to find this effect. One is from the evidence the plaintiff would have produced. The other is by giving certain meaning to words used in context as the majority has here. This second method is inexact, to say the least.

I do not agree with the majority statement that this article could obviously not be libelous per se. If the article is false and tends to injure the plaintiff’s reputation and thereby expose him to public hatred, contempt, or shame, it is libelous per se. Hall v. Binghampton Press Co., 29 N. Y. S. 760.

The question of falsity in this case revolves around the use of the term “legal technicality”. In arriving at a conclusion as to whether the defendants ’ use of the term was true or false under the circumstances I don’t believe we should substitute a dictionary definition of the term for a jury finding. The plaintiff should have the benefit of any meaning ascribed to the phrase by his neighbors, and possible clients, in his community. Jackson v. Williams, 92 Ark. 486, 123 S. W. 751. The cause should be tried on its merits, not by this court as an Appellate jury.

For the reasons stated above, I respectfully dissent.

       Under the provisions of Initiated Act No. 3, adopted at the general election of 1936.

       The Code of Judicial Ethics was adopted by the State Judicial Council of Arkansas in September, 1958, and Section 35, pertinent hereto, reads as follows: “Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting or televising of court proceedings are calculated to detract from the essential dignity of the proceedings, distract the witness in giving his testimony, degrade the court, and create misconceptions with respect thereto in the mind of the public and should not be permitted. * * *”

       Emphasis supplied.


author: J. Seaborn Holt, Associate Justice.

text:
    Davis v. Bullard.
    5-2081
    333 S. W. 2d 481
    Opinion delivered March 28, 1960.

      Charles F. Cole, for appellant.

      Caldwell T. Bennett, for appellee.
   J. Seaborn Holt, Associate Justice.

This is a suit for personal injuries and property damage growing out of a collision between an automobile owned and operated by appellee, Clarence J. Bullard, plaintiff in the trial court, and a heavily loaded trailer-truck owned by appellant, W. D. Bowers, and driven by his employee, Hubert Davis. Appellee’s complaint alleged the following specific acts of negligence personal to W. D. Bowers: “The defendant employer W. D. Bowers in stopping his tractor-trailer upon the traveled portion of the State Highway No. 69, without leaving sufficient room for safe passage of the plaintiff’s vehicle upon the traveled portion of the highway; * * * in stopping his tractor-trailer upon the traveled portion of the State Highway No. 69, without leave (sic) a free and unobstructed view for a distance of 300 feet from the direction of the plaintiff’s approach. * # * in allowing his headlights to remain on bright, while blocking the entire traveled portion of State Highway No. 69, with his vehicle, and that of his employee-defendant Hubert Davis.” On proper instructions, including one under our comparative negligence statute [27-1730.2 Ark. Stats.] directing the jury to determine in .its verdict the degree of negligence attributable to each of the two defendants, the jury found: “(A)-That Clarence J. Bullard, the plaintiff had been damaged in the following amounts: A. Property damage $672.20 B. Personal Injury $36,000.00 (B) That the degrees of negligence found in the various parties are as follows: a; Hubert Davis-0- b. W. D. Bowers 65% c. Clarence J. Bullard 35%.” In accordance with the verdict the court entered judgment for appellee, Bullard, against appellant, Bowers, in the amount of $23,-836.90.

For reversal, appellant, Bowérs, contends: “ * * % that his liability, if any, is based upon the employer-employee relationship which existed between him and Mr. Davis. That since the jury found that Mr. Davis, appellant’s employee, was not guilty of 'any negligence, the lower court erred in rendering judgment against Mr. Bowers, the employer and appellant here.” • Appellant’s contention would be correct if no independent acts of negligence personal to Bowers were established. We announced this rule in the recent case of Elmore, Admr. v. Dillard, 227 Ark. 260, 298 S. W. 2d 338, where we said: “* * * a jury’s verdict could not stand because of inconsistency where it found that á truck driver was not negligent and at the same time returned a verdict against the driver’s employer or principal where, as here, no independent acts of negligence have been established.” In the present case, after a careful review of the record, we have concluded that there is some substantial evidence to warrant the finding of the jury that appellee had established independent acts of negligence on the part of Bowers apart from the employer-employee relationship between him and Davis.

Appellee, Bullard, a single man 25 years of age, testified, in effect, that he was driving his automobile on highway No. 69 westerly on his way to Batesville, Arkansas, from Newark, Arkansas, at about 6:30 P.M. The sun was down and his headlights were on; that he was going up a hill approaching a left curve at the crest of a hill and that as he drove his car over the crest, the headlights on a truck driven east by appellant, Bowers, blinded him and he drove into the rear of a westbound truck-trailer loaded with approximately 35,000 pounds of grain driven by appellant, Davis. Davis had stopped his truck just over the crest of the hill on the highway in the lane in which appellee was driving. Appellant, Bowers (Davis’ employer), had stopped his truck almost opposite Davis’ truck on the highway. Bullard was seriously injured by the collision and completely lost the sight of one eye. Appellee presented two eyewitnesses to the mishap. C. S. Sweet testified that he saw the collision, — that it was dusky dark. He saw the Davis truck come up the hill toward Batesville, westbound. Appellant, Bowers, was meeting him (Davis) eastbound and stopped his truck in the eastbound lane, opposite the Davis truck which was in the westbound lane. The headlights on Bowers truck were burning brightly — neither truck was on the shoulder of the road. There were no taillights on the eastbound (Davis) truck, — there was nothing to obstruct his view. Both trucks were completely stopped four or five minutes on the hard-surface portion of the highway. He saw Mr. Bowers out of his truck and at the side of the Davis truck. He saw only one man in the Davis truck. E. E. Dry tended to corroborate Sweet. He testified that appellant, Bowers, was driving his truck eastbound and as he neared the crest of the hill and curve, he stopped his truck and another truck (the Davis truck) meeting him westbound. They were both stopped three, four or five minutes. The drivers got out. Bowers was stopped there on the road. A westbound car came over the hill from the east and hit the rear of the westbound truck (the Davis truck). Patrolman Wallace testified that Davis told him there was no one with him (Davis) at the time of the collision.

Prom the above evidence we hold that the jury was warranted in finding that Bowers, who was personally operating his own truck, was personally negligent in stopping it on the highway short of the crest of the hill as he did and in causing his employee, Davis, to bring his truck to a stop opposite Bowers’ truck in such a manner as to partially block the highway at that point from three to five minutes, with his (Bowers) headlights burning and projecting so as to blind momentarily appellee as he drove his ear west over the crest of the hill and into the rear of the Davis truck.

Under our long established rule, we must affirm the verdict of the jury when we find any substantial evidence to support it and, — “In testing the sufficiency of the evidence to support the verdict of a jury this court must view the evidence with every reasonable inference arising therefrom in the light most favorable to the appellee, and this court is bound by the most favorable conclusion that may be arrived at in support of the verdict rendered by the jury, and can only determine whether or not there ivas substantial evidence to support the verdict.

We have many times held that this court, on appeal, in determining the sufficiency of the evidence, will consider the evidence in the light most favorable to appellee and will indulge all reasonable inferences in favor of the judgment,” Missouri Pacific Transportation Co. v. Jones, 197 Ark. 79, 122 S. W. 2d 613.

Accordingly, the judgment is affirmed.


author: Ed. F. MgFaddin, Associate Justice.

text:
    Ross v. Edwards.
    5-2023
    333 S. W. 2d 487
    Opinion delivered March 28, 1960.

      Jeptha H. Evans, Rose & Kiser, Douglas O. Smith, Jr., Warner, Warner & Rag on, for appellant.

      Pettus A. Kincannon, Lawrence S. Morgan, for appellee.
   Ed. F. MgFaddin, Associate Justice.

The validity of the will of Mrs. Mattie Edwards is the question for decision. The appellee, Boss Edwards (surviving son of Mrs. Mattie Edwards), obtained probate of the will; within six months thereafter the appellants (two daughters of a deceased son of Mrs. Mattie Edwards) attacked the instrument as a forgery; the Probate Court found the will to be valid; and this appeal ensued, in which the appellants present two points:

I. The finding of the Probate Court was wholly contrary to the preponderance of the evidence.

II. The conduct of the Lower Court and its findings of fact constitute an abuse of discretion highly prejudicial to contestants herein.

Mrs. Mattie Edwards died on January 21, 1957 at the age of 87. She. had been a widow for a number of years, and had only three sons:

1. James Edwards, wbto died in 1919, survived by two daughters who are appellants herein, Mrs. Marjorie Edwards Ross and Mrs. Claudine Edwards Lynch.

2. Keith Edwards, who died in 1944 without issue.

3. Ross Edwards, the appellee herein.

On June 24,1957 appellee petitioned for the probate of the will of Mrs. Mattie Edwards. Both of the attesting witnesses to Mrs. Edwards’ purported will were dead at the time the will was offered for probate: Chas. X. "Williams having died in 1951, and Long John Williams having died on April 10, 1957. Because of the death of both of the attesting witnesses, the probate of the will was accomplished by proof, of three witnesses, each of whom stated under oath personal knowledge of each of the three signatures on the alleged will, and also stated that each of the said signatures (i.e., the testatrix and the two attesting witnesses) was valid. § 62-2117 Ark. Stats. These three affiants were Abe Williams, Elizabeth Walker, and R. A. Sadler.

The will was admitted to probate and letters testamentary were issued to Ross Edwards on July 15, 1957. Due notice of probate was given; and on December 27, 1957 the appellants, Marjorie Edwards Ross and Claudine Edwards Lynch, being the two granddaughters mentioned in the will, filed their contest of the will. § 62-2115 Ark. Stats. The ground for contest now relied on is, that the purported will was a forgery. The trial before the Chancellor on exchange extended over several days. The case was as thoroughly tried as any will contest on forgery that we have ever studied. Since the testatrix and both attesting witnesses were dead, all the contestants had to do was to prove that any one of the three signatures (testatrix or either attesting witness) was a forgery, in order to defeat probate, since, in Arkansas, a valid will, other than holographic, must have two witnesses. § 60-403 Ark. Stats.

An enormous record of testimony and exhibits is before us; and because the appellants claim, in their second point, that the Trial Judge was impatient with their expert witness, we have carefully gone over every ex-Mbit and word of testimony in this trial de novo. Probate appeals receive such a trial here. Walsh v. Fairhead, 215 Ark. 218, 219 S. W. 2d 941; Lockett v. Adams, 212 Ark. 899, 208 S. W. 2d 428; and Brown v. Emerson, 205 Ark. 735, 170 S. W. 2d 1019. After a painstaking study of the record, we have concluded that the appellants have not sustained the burden of proving any signature on the will to have been a forgery. So we affirm the probate of the will. When Ross Edwards offered the will for probate he had the burden of proving the genuineness of the signatures; he made such proof; and the will was admitted to probate on July 15, 1957. When the appellants sought to contest the will within the 6-months period (§ 62-2114), they had the burden of sustaining the contest. Leister v. Chitwoood, 216 Ark. 418, 225 S. W. 2d 936; and Walsh v. Fairchild, supra.

Mrs. Mattie Edwards was a remarkable woman: left a widow when her three sons were young, she managed her property most efficiently, and was president for many years of the Citizens Bank in Booneville. Mr. Chas. X. Williams was an officer of the bank, being its attorney, and also personal attorney for Mrs. Edwards. Long John Williams, son of Chas. X. Williams, was likewise engaged in the operation of the bank. These two gentlemen were the attesting witnesses of Mrs. Edwards’ will, which was shown to have been executed in 1945. The contestants (appellants) called a distinguished handwriting expert of worldwide experience. He testified: that each of the three signatures was a forgery; that the paper on which the will was written was bonded between 1940 and 1945; that with age the paper fades to ashen gray or yellow; that in 1945 tMs paper would have been white and if ink had been placed on it in 1945 the paper would still be white under the ink; that the paper was faded under the ink, therefore, establishing that the ink was not placed on the paper in 1945; that the kind of ink used in the signatures of Long John Williams and Chas. X. Williams was not in manufacture until 1952, seven years after the alleged signatures; and that the signature, particularly of Chas. X. Williams, bore' clear evidence of tracing. This expert also made a- study óf the typewriter used in typing the will.

There were introduced into evidence scores and scores of admittedly genuine signatures of Mrs. Edwards and the two attesting witnesses. Records, documents, and instruments were put in evidence containing signatures of all three parties, dating from the 1930’s to the 1940’s. Many of these signatures were “blown up”, or enlarged by photographic processes; and a letter by letter comparison of the signature of each person on the will was checked against admittedly .genuine signatures. All this testimony was designed to show that appellant, Ross Edwards, or someone for him, was responsible for the claimed forgery of Mrs. Edwards’ will.

For the appellee there were two nationally known handwriting experts, each testifying to the genuineness of each of the three signatures on the questioned will; and their expert opinions were based on equally as many comparisons as those of the expert for the appellants. Also, there were friends and business associates who knew all three parties and their signatures (i.e., Mrs. Edwards and the two witnesses); and these friends and associates all testified that each signature was genuine. The expert witnesses for the appellee testified in great detail, just as did the expert witness for the appellants. In fact, all of the experts had a “field day”, and showed great study in their chosen professions. The record is voluminous and the exhibits number into the scores. On the genuineness versus the forgery of the questioned will there was no real dispute as to the applicable rules of law: the issue was one of fact.

As aforesaid, we have reviewed de novo the entire record; and we conclude that the appellants have not established, with the quantum of necessary evidence, that the questioned will was a forgery.

Affirmed.

       This instrument, in its entirety, reads:
      “Will of Mattie Edwards — Booneville, Arkansas.
      “KNOW ALL MEN BY THESE PRESENTS —
      “That I, Mattie Edwards, of Booneville, Arkansas, being of sound mind and disposing memory do make and publish this my last Will and Testament revoking all former wills by me at any time made.
      “I. I hereby direct and constitute and appoint my beloved son, Ross Edwards, Booneville, Arkansas, sole Executor of this my last Will and Testament without being required to give or make bond or inventory and request that he keep my estate out of the Courts excepting for the probation of this Will.
      “II. I direct my Executor collect all insurance, notes, money or any choses in action due me — -that he pay all my just debts, doctors bill and funeral expense and place a suitable but not expensive marker at my grave at a convenient time.
      “III. I give, bequeath and devise to my son, Ross Edwards, my entire Estate, both personal and real — all my choses in action, moneys, insurance, bank account, notes and every article that I die seized with and of excepting as hereinafter set out and mentioned:
      “I give and bequeath to my granddaughter, Marjorie Edwards Ross, $100.00 in cash.
      “I give and bequeath to my granddaughter, Claudine Edwards Lynch, $100.00 in cash.
      “I give and bequeath to my beloved sister, Laura Keith Mclnturf, $500.00 in cash should she survive me but this bequest shall be void should she precede me.
      “My granddaughters hereinabove will understand my love for them inasmuch as a prior settlement was heretofore consummated with them following the death of my beloved son, James Edwards, their father.
      “IV. In the event my son, Ross Edwards, precedes me and/or I should become incapacitated, then his son, James Ross Edwards, in that event shall ascend to the executorship of this my Last Will and Testament with like direction imposed upon Ross Edwards herein.
      “V. I direct my Executor to comply with my wishes as herein set out just as soon as he can cqnveniently do so following my demise. Signed, published and declared by the said Mattie Edwards as and for her last Will and Testament in the presence of each other at her request and we hereto subscribed our names after she has signed this Will immediately hereunder.
      /s/ Mattie Edwards
      “We, Chas. X. Williams and Long John Williams, do hereby certify that Mattie Edwards, the Testator in the above and foregoing last Will and Testament signed the same in our presence.
      /s/ Long John Williams
      /s/ Chas. X. Williams”

       The three grounds for contest, as stated in the original pleading and the amended objections to the probate of the will were: (1) That said purported will was not made and executed as required by law and is not the lawful will of said decedent. (2) That said decedent was without legal capacity to make said purported will and that the said will is void and without'force or effect. (3) That said purported will was procured by fraud and undue influence and is therefore illegal and void. The second and third grounds were finally abandoned, and the forgery question'raised in the first ground became the sole attack.