author: George Rose Smith, Justice.

text:
    FIREMAN’S FUND INSURANCE COMPANY v. Clifford CLARK
    5-6172
    490 S.W. 2d 447
    Opinion delivered February 19, 1973

      William Clay Brazil, for appellant.

      Cambiano ir Cree, for appellee.
   George Rose Smith, Justice.

In 1967 Clifford Clark, the defendant-appellee, was a livestock dealer doing business in Morrilton. Pursuant to the Federal Packers and Stockyards Act he, as principal, and the plaintiff-appellant as surety, gave a bond by which Clark obligated himself to pay when due all net amounts for which Clark sold livestock for the account of other persons.

Marx Brothers, livestock brokers at Memphis, Tennessee, asserted a claim against Clark for $657.97. Clark denied that he owed the money, but the surety, Fireman’s Fund, nevertheless paid the claim in full and brought this action against Clark for reimbursement. The circuit court, sitting without a jury, found the issues in favor of Clark, who was also awarded a $150 attorney’s fee. This appeal is from that judgment.

We state the facts most favorably to the trial court’s judgment, as is our rule. Marx Brothers first asserted its claim in an administrative proceeding within the United States Department of Agriculture. It was alleged that Clark had sold Marx Brothers’ cattle to third persons for $657.97 less than the minimum price fixed by Marx Brothers. The administrative hearing officer upheld the claim and directed Clark to pay it within 30 days.

Clark, denying liability, refused to pay the claim and rejected a Marx Brothers offer to settle it for $300. The attorneys for Marx Brothers then sent Fireman’s Fund a copy of the administrative order, with a demand for payment. Clark continued to deny liability, but Fireman’s Fund paid the claim in full, over Clark’s objections.

At the trial Clark testified to facts indicating that he owed nothing to Marx Brothers. Fireman’s Fund made no effort to prove that the Marx Brothers claim was in fact meritorious. Instead, Fireman’s Fund introduced the federal administrative order and insisted that it was justified in paying Marx Brothers by reason of a provision in the surety bond stating that the surety “in its sole discretion and without notice to [Clark] is hereby authorized but not required ... to adjust, settle or compromise any claim or suit arising under said Bond and, with respect to any such claim or suit, to take any action it may deem appropriate and any adjustment, settlement or compromise made or action taken by the Surety shall be conclusive against and binding upon [Clark].”

When the bond is read as a whole it is obvious that the langugage just quoted cannot be taken literally, without regard to the rest of the instrument. Clark’s primary responsibility under the bond was to pay over money received by him in the course of selling other people’s cattle. If he properly discharged that duty he was under no liability to third persons. It goes almost without saying that Fireman’s Fund could not seize upon the quoted language in its bond as a means of making Clark liable for a wholly fictitious claim.

Fireman’s Fund cites out opinion in Peay v. Southern Surety Co., 141 Ark. 265, 216 S.W. 722 (1919), where we construed a somewhat similar bond. We first stated the controlling rules: “Generally, the liability of the principal is the measure of the liability of the surety; so, if the surety should pay where no liability existed against the principal, it would be treated as a voluntary, nonrecoverable payment. This rule, however, may be modified by contract.” We went on to say, however, in interpreting language similar to that now before us, that the principal would be liable to the surety “for all good faith payments” made by the surety in absolving itself from claims made against it under the bond. Thus the issue is ultimately one of good faith.

When, as here, the trial judge makes no special findings of fact, we treat the judgment as having the same finality as a jury verdict and sustain it if supported by any substantial evidence. Norvell v. James, 217 Ark. 932, 234 S.W. 2d 378 (1950). Testing the judgment by that standard, we find sufficient evidence to sustain the view that Fireman’s Fund did not meet the standard of good faith in protecting its principal against an adverse claim.

The federal administrative finding in favor of Marx Brothers was not conclusive. Under the controlling statute, if Clark failed to pay the claim Marx Brothers was required to bring suit in the federal court within a year, with the administrative finding being merely prima facie evidence in favor of the claimant. 7 U.S.C.A. § 210 (f) (1964). Hence Fireman’s Fund had no absolute right to rely upon the administrative order as a conclusive adjudication. Nevertheless, it chose to pay the claim in full over the objections of its principal and failed to make any showing in the trial court (other than the findings in the administrative order) that the Marx Brothers claim was actually valid. Clark has steadfastly denied any liability to Marx Brothers, even to the point of refusing to settle the claim for less than fifty cents on the dollar. Upon the record as a whole we find substantial evidence to support the conclusion that Fireman’s Fund’s conduct fell short of a good faith effort to protect the best interests of its principal.

Fireman’s Fund is right, however, in its contention that the court erred in awarding an attorney’s fee to Clark. Our Insurance Code contains two sections with respect to attorney’s fees. The first applies to cases in which the insured recovers a money judgment; so it is not pertinent here. Ark. Stat. Ann. § 66-3238 (Repl. 1966). The following section applies to certain specified cases not involving a money judgment against the insurance company, § 66-3239, but there is no language in the section describing a suit such as this one. The judgment must therefore be modified to eliminate the attorney’s fee.

Affirmed as modified, with the appellant to recover its costs pursuant to our Rule 24 (c).


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Carl GUINN et al v. ARKLA CHEMICAL Corporation
    5-6185
    490 S.W. 2d 442
    Opinion delivered February 19, 1973

      Youngdhal, Brewer & Huckabay, for appéllants.

      Blanchard, Walker, O’Quint ir Roberts, Shreveport, La., and Smith, Williams, Friday, Eldredge ir Clark, for appellee.
   Lyle Brown, Justice.

This case concerns the claim of appellant and 112 fellow employees similarly situated, to unemployment benefits. The local office and the appeals referee of the employment security division denied benefits. The board of review reversed. The circuit court reversed the board of review. From that denial of compensation the workers have appealed.

On August 1, 1970, the contract between appellants’ union and appellee employer expired. A strike was instituted September 9,1970 because bargaining efforts failed. The strike was in full force until November 5, 1970, at which time the employer ammounced the closing of the plant for stated economic reasons, including a tight timber supply, a depressed market, and substantial operating losses. As of that date all picketing, boycotts, union benefits and other strike activity ceased. The employer terminated the group medical hospitalization policy which it had maintained for the employees. The employer started using the plywood manufacturing facility for fertilizer storage, the fertilizer being manufactured at a different plant.

In denying benefits the appeals referee said that the original dispute that caused the strike and suspension of operations on September 9 still continued as evidenced (a) by the fact that the strike issues had not been settled and (b) the employer was ready, willing and able to continue negotiations. He also noted that mere removal of pickets from a struck plant does not result in the termination of a labor dispute; and that the dispute still continued. The referee succinctly stated the position of the employer on appeal. Conversely, the board of review, in reversing the appeals referee, pointed up in a few words the position of the employees:

The board of review finds that claimants, after notification by the employer that it was closing its plant indefinitely for economic reasons, were not out of work because of a labor strike. Thus claimants did not leave or lose employment by reason of a labor dispute. Claimants could not work since no jobs were available after the employer closed the plant.

The points argued for reversal of the circuit court and reinstatement of the findings of the board of review are (a) that substantial evidence supports the finding and conclusion of the board that the weeks of unemployment in issue were not by reason of a labor dispute, and (b) that affirmance of the finding of the board of review is required by judicial interpretation of the unemployment compensation system.

The applicable statute is Ark. Stat. Ann. § 81-1105 (f): “If so found by the commissioner, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment if he lost his employment or has left his employment by reason of a labor dispute other than a lockout at the factory, establishment, or other premises at which he was employed (regardless of whether or not such labor dispute causes any reduction or cessation of operations at such factory, establishment or other premises of the employer), as long as such labor dispute continues, and thereafter for such reasonable period of time (if any) as may be necessary for such factory, establishment or other premises to resume normal operation. . . .”

We think the statute just quoted, and the written communications between the parties, are decisive of this case. In substance the statute provides (as applied to the case before us) that no worker shall be paid benefits for any period of unemployment if he lost employment, or left his employment, by reason of a labor dispute. The fact that a labor dispute continues for a prolonged time does not alter the rule because the statute says the disqualification shall continue “so long as such labor dispute continues”.

It is undisputed that the workers left their employment by reason of a labor dispute. It is also clear to us that the labor dispute continues. Under date of November 4, 1970, the Arkla official wrote the union representative that the “rock bottom” offer “would initially cost the company more than the last previous offer that the union had on the table”. Nevertheless, the proposal was submitted to Arkla’s management and after considering all the facts “the decision was made to suspend operations”. The letter was concluded with this statement: “We are ready to continue our negotiations at such times as is convenient for both parties in the hope that we can reach an agreement in the event that the plant is to be reactivated”. In its reply to that letter from Arkla, the union agent responded on November 6. There it was stated that the union noted the possibility of reopening the plant “at sometime in the future”. It was requested that if and when the decision to reopen materialized that the union be notified “so that negotiations can be resumed”.

Several elements of economics entered into the decision to suspend operations but it was made clear in Arkla’s letter that the union’s “rock bottom proposal” was of considerable economic importance. But be that as it may, the strike caused the appellants to leave their employment and a new contract was never consummated. The most that can be said was that, although Arkla was willing to continue the negotiations, the union preferred to suspend negotiations until the plant reopened. Naturally, if the union desired to suspend bartering, the company was powerless to condnue it.

The board of review attached considerable significance to a factor that is not covered by the statute under any reasonable interpretation. In its opinion the board stated: “Claimants could not work since no jobs were available after the employer closed the plant”. Consequently, the board reasoned, the “claimants did not leave or lose employment by reason of a labor dispute”. The fact is that the employees initially left their employment by reason of a labor dispute and the fact that Arkla elected not to resume operations for the present is of no significance under the cited statute. In fact the statute says there is still a labor dispute regardless of cessation of operations. Here we point out that had the factory burned down, or if the wood-paneling equipment had been moved, we might have a different situation.

Cases from other jurisdictions are not helpful because, so far as we have been informed, the other jurisdictions do not have a statute on all fours with ours. For example appellant cites a Texas case and contends the Texas statute is identical with ours. But see, to the contrary, Kraft v. Texas Employment Commission, 418 S.W. 2d 482 (1967). Unfortunately we have no Arkansas case interpreting the pertinent statute.

Alternatively, appellant contends there was a lockout by the employer. It is conceded that the lockout theory was not developed at any of the hearings; in fact it is suggested that we remand the case for further consideration of the theory. That suggestion would result in piece-meal litigation and we respectfully decline to send the case back for that purpose.

Affirmed.


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

text:
    Shirley W. JACKSON v. Edwin F. JACKSON
    5-6120
    490 S.W. 2d 809
    Opinion delivered February 19, 1973

      Judith Rogers, for appellant.

      James L. Sloan, for appellee.
   John A. Fogleman, Justice.

This case arose from an effort by appellant to set aside an order of August 4, 1966, modifying a decree of divorce entered January 8, 1964. The modification changed the custody of the two daughters of the parties from the mother to the father and provided for termination of alimony. In her petition in the chancery court, filed September 2, 1971, appellant alleged that she did not have the benefit of counsel at the time the order modifying the divorce decree was entered, or when she signed a joint motion with appellee for the modification. She alleged that the children subsequently returned to her home, and that the child support provided for in the original decree had not been paid. She prayed for reinstatement of an original property settlement agreement between the parties, for judgment for arrearages in child support in the amount of $15,750 and alimony in the amount of $10,900, for the continued maintenance of an insurance policy and the allowance of attorney’s fees and court costs as well.

The first contention made by appellant is that the court had no power to modify a contractual agreement between the parties in the absence of an agreement between them which would be sufficient under the law of contracts for modification of an agreement. She argues that, since the parties entered into an extensive property settlement agreement, the court had no power to modify the agreement, even though it was incorporated into the decree, unless this agreement itself authorized a modification or the parties themselves entered into a binding agreement for modification.

The property settlement agreement was not abstracted, but appellant states that it provided for the following: conveyance of all the husband’s interest in the dwelling house in which the parties had lived and all the furniture therein to the wife; life insurance coverage on the appellee until the youngest child completed her college education; $200 monthly alimony until remarriage and $250 per month for the support of the daughters, Cynthia and Courtenay (19 and 17 years of age, respectively, at the time of the hearing), who were to be in the custody of their mother, with reasonable rights of visitation reserved to their father; in case of remarriage of appellant, the payment of $100 per month in lieu of alimony, until the younger child reached the age of 18, or until the children cease to reside in the house, for application to payments of $189 per month on a mortgage on the home.

Appellant recited in her complaint for divorce that a property settlement agreement had been entered into and the decree rendered in her favor incorporated that agreement, which had been signed by both parties. The modification was made upon an unverified joint motion signed by both parties and presented to the court by James L. Sloan, appellee’s attorney in this proceeding and at the time the divorce decree was entered. It was filed on the same day the court’s order of modification was entered. The motion recited that Sloan was solicitor for both parties and requested that the court amend the divorce decree to change the custody of the children to appellee and to permit discharge of his obligation for alimony by the payment of $200 per month through December 1, 1966, or until the real property was sold, whichever was the earlier date, and thereafter at the rate of $150 per month for 12 months. The precedent for this order was signed by both parties.

While we agree that the court had no power to modify the property distribution provided for in the agreement, we do not agree that it was in any way limited in its powers to change the custody of the children or the amount to be paid as child support in the interest of the best welfare of the children on account of changed circumstances. The real question involved here, however, is whether there was a modification by consent of the parties, because, if there was, it cannot be doubted that the court had jurisdiction to enter an order changing the custody of the children and modifying child support payments. Johnston v. Johnston, 241 Ark. 551, 408 S.W. 2d 885; Collie v. Collie, 242 Ark. 297, 413 S.W. 2d 42; Robbins v. Robbins, 231 Ark. 184, 328 S.W. 2d 498; Penney v. Penney, 210 Ark. 16, 193 S.W. 2d 811. Authorities relied upon by appellant relate to alimony or property rights only, but they have no application where custody and support of children are involved. See Lively v. Lively, 222 Ark. 501, 261 S.W. 2d 409.

Appellant argues that there was no consent to the modification because: there was no meeting of the minds due to appellant’s reliancé upon appellee, an attorney at law; appellant signed the joint motion without the advice of counsel and under such stress as to amount to duress, in order that appellee might remove the children from the state; there was no consideration for the agreement for modification because, under the modification, appellee was required to pay even less alimony than he would have paid in compliance with the original decree; there was a failure of consideration because appellee paid appellant only two payments of $150, rather than the 12 required by the modified decree and by reason of the fact that both children later returned to appellant; and appellant was grossly overreached by appellee in obtaining the modification. The chancellor obviously found that there was no merit in these arguments as the court’s decree denied appellant any relief except for judgment for $270 for delinquent child support payments which appellee admitted to be due appellant. We cannot say that the chancellor’s findings were clearly against the preponderance of the evidence.

Appellant testified that she found she was unable to maintain the household on the $450 in alimony and child support which appellee was paying and had requested that appellee give her more money, When this request was refused, she said that she advised appellee she would have to sell the house, but he replied that, in such event, he would reduce his payments to her. She had been employed and had borrowed an additional $1,500 to $2,000 on the security of another mortgage on the house. As a last recourse, according to her, she asked appellee to take the girls, knowing that they would then be adequately fed, cared for and given other advantages. She stated that she was ignorant of the law and financial affairs, and trusted her former husband, an attorney at law, to protect her interests. She said that she did not understand the consequences of the provision in the joint motion and the order that provided for the early discharge of appellee’s obligation to pay alimony. This joint motion was drawn in Sloan’s office, after appellee had consulted with him, and was taken to appellant’s home by appellee. She testified that she read it perfunctorily. None of the parties was present when Sloan presented the motion and obtained the entry of the order of modification. Thereafter, appellant sold the dwelling house, netting some $4,000 after retiring the mortgage of $15,000.

Appellant admitted that she first consulted an attorney (other than the one who has represented her throughout her efforts to set aside the modification) about the modification four years after she signed the joint motion, and then did not institute the present proceeding with the aid of another attorney until about a year later. She had sought the assistance of an attorney to obtain child support when the daughters returned to her in 1968.

There is no testimony to indicate that appellee did anything to misrepresent die content of the joint motion or the proposed court order or to prevent appellant from having, or to discourage her from seeking, advice from any source she might choose, or to persuade her to forego a careful reading of the documents. She had been represented by an attorney, of course, when she filed the divorce suit and when the original decree was entered. Her belated protestation that she failed to understand the plain language of the joint motion is not sufficient basis for our saying that the chancellor’s holding should be overturned for want of a meeting of the minds. There is no indication that.appellant ever wanted or sought the advice of counsel before signing the joint motion and approving the proposed order, or that she did or said anything to indicate to appellee that she was relying on him for legal advice or otherwise reposing any confidence in him — her divorced husband, who had been going with his present wife at the time the divorce suit was filed, who had adamantly refused her requests for more money, and who had done nothing to indicate that she should expect him to look after her interests.

The evidence is not such as would justify a finding that appellant’s joining in the motion was procured by fraud or duress, or that its content and effect were misrepresented to her in any respect. In passing we should say that, if consideration were necessary to sustain the agreement, it can be found in the change in the status of the parties, as between themselves, with respect to their obligations to the children, and appellant’s relief from the necessity of maintaining a large residence, which, in turn, enabled her to pay, from the proceeds of her sale of the house, debts she had incurred, and freed her from the burden of monthly mortgage payments. The burden devolved upon appellant to show the elements of fraud or duress by a preponderance of the evidence. Page v. Woodson, 211 Ark. 289, 200 S.W. 2d 768. Her willingness to accept these benefits of the agreement tends to negate her present assertions of fraud, duress and overreaching. See Faulkner v. Mowry, 228 Ark. 285, 307 S.W. 2d 860. A mere change of mind by a divorced wife who has received the benefits of an agreement sought by her is not a basis for setting aside a decree based upon that agreement. Foit v. Foit, 237 Ark. 953, 377 S.W. 2d 611. When the benefits to her which were, at the time of the signing of the joint motion, important are considered along with the lapse of time between the signing and the first assertion of fraud, duress or overreaching, we are inclined to doubt that appellant acted under any such compulsion because she certainly did not repudiate the agreement with the diligence an equity court should expect as a basis for the exercise of its extraordinary powers. Page v. Woodson, supra; Sullivant v. Sullivant, 239 Ark. 953, 396 S.W. 2d 279. The actions of appellant are much more consistent with a ratification of the agreement evidenced by the joint motion than with repudiation. Page v. Woodson, supra. We do not find the elements essential to a showing of fraud or duress.

There is considerable room for doubt that the actions of either party have been motivated in all instances solely by their regard for the daughters. Still, we are unable to say that there was a failure of consideration for the agreement of the parties expressed in the joint motion, assuming that the question is pertinent. The appellee took the children to his home in Des Moines, Iowa, where he is general counsel for an insurance company. They remained in his home for approximately two years and thereafter have seemed to have done about as they pleased. Testimony by appellee that he has furnished each daughter $150 per month for her support and maintenance when she was not at his home is undisputed. Even though the testimony about the letter from appellant to appellee on January 13, 1967, is subject to conflicting inferences, we cannot say that appellee was not justified in taking it to mean that payments by him in lieu of alimony should be stopped in February. That letter, written in a very friendly tone, stated that it was “to let you know that your obligation of $150 per month for house payment was retired with the February 1 payment.’’ In that letter, appellant also expresed her satisfaction with the sale of the house, her relief upon retirement of the debt, and her suggestion that part of the March “house payment” be used for Easter clothing for the daughters. We could not justify holding that there had been a failure of consideration in view of these expressions. Furthermore, this letter is another indication that appellant was not overreached at the time of the modification. It suggests that she was still satisfied with the state of affairs some five months later when she wrote appellee.

Appellant’s contention that she is entitled to judgment for alimony arrearages at the rate of $200 per month from March 1967 to date, and $50 per month for January and February 1967, must, of course, along with her claim for child support, fail. Even in Lively v. Lively, 222 Ark. 501, 261 S.W. 2d 409, relied upon by appellant, it is recognized that the court may modify the allowance of alimony or child support or both when the parties consent. As we have demonstrated, it appears that consent of the parties was shown by a preponderance of the evidence. Alternatively, appellant contends that she should recover $250 per month for each month after the daughters returned to her home. We agree with appellant that she would be entitled to judgment for any unpaid installments of child support which appellee was required to pay not barred by the statute of limitations. But the only claim that appellant asserts is based upon the voluntary return of the daughters to her home. Both daughters remained in appellee’s home, except for visits, for approximately two years, after which Courtenay stayed with her mother for about one year, then returned to her father’s home for a year, after which she came back to her mother’s home in Little Rock for a year and stayed at least until the time of the hearing. Appellant testified that this child only gave her $10 per month, even though she regularly received money from her father and had earnings from employment as a maid. Cynthia also returned to her father’s home after about a year with her mother, and then went to California to live, but returned to her father’s home and then to her mother’s again. The exact times of their movements from one home to another are difficult to ascertain because there are some discrepancies in the testimony of the parents and daughters in tnis regard.

Appellee furnished $500 for the down payment on an automobile for Courtenay and testified that, over the preceding five years, he had spent from $1,000 to $2,000 in addition to the monthly allowances sent to them for car insurance and repairs, medicines, drugs and doctor’s bill. He also said that his employer furnished a major medical insurance policy covering them. Cynthia said that she gave her mother one-half of the $150 monthly payments she received from her father the first year and $10 per week thereafter as long as she lived with her. Courtenay said that she could not remember when she stopped giving her mother $75 per month, but admitted that she had for sometime been keeping the entire amount sent by her father, giving her mother $10 for groceries only occasionally. Of course, this arrangement seems rather unwise and unsatisfactory to us, but appellee seems not to have given his wholehearted approval to the children’s leaving his home, and the mother does not seem to have expressed her dissatisfaction with this arrangement subsequent to the last return of the children, until the filing of the present petition.

Appellant states that the attorney who obtained the entry of the court order improperly represented conflicting interests, and that appellant’s lack of representation by an attorney was never made known to the court. Of course, we cannot know what representations were made to the court, but the joint motion was signed by the attorney, along with the parties, as “solicitor for the parties”. Appellant emphasizes the extreme caution and grave ethical considerations bearing upon representation of multiple interests in these and other matters. In the absence of other evidence sufficient to show that appellant’s consent was obtained through fraud or duress, we are unable to justify setting aside the court’s order on this ground.

It seems, however, that the chancellor overlooked appellant’s prayer for judgment for arrearages in alimony payments and gave no judgment for payments of $150 per month for 10 months beginning with March 1967. Although appellee pleaded the statute of limitations, its bar would not operate for five years. See Brun v. Rembert, 227 Ark. 241, 297 S.W. 2d 940. For that reason, the decree is modified to give appellant judgment against appellee for $1,500.

While the dissenting opinion is based upon the premise that appellant’s right to recover unpaid alimony on the basis of the decree as modified was never in issue in the trial court, we do not feel that this inference is wholly justified. It must be remembered that this is an equitable proceeding from beginning to end. Ark. Stat. Ann. § 54-1201 (Repl. 1962). The prayer for relief included a prayer “for her arrearages tó date since the defendant stopped paying alimony” in the sum of $2,100 for 1967, and “for all other proper and equitable relief to which she may be entitled.” In Sannoner v. Jacobson, 47 Ark. 31, 14 S.W. 458, we said: “A party is entided to the relief which the facts shown clearly warrant whether he has prayed for much or little.” In Kelly’s Heirs v. McGuire, 15 Ark. 555, at page 595, we said:

Now, there can be no question of the soundness of the rule that it is only necessary to state the facts in a bill in chancery; and it tends to prolixity, and is generally improper to state matters of law; unless, perhaps, law and fact be so blended as to render it necessary. Under a prayer for general relief, the court may grant any that the facts stated will warrant, although it may be inconsistent with the special relief prayed.

See also, Shields v. Trammell, 19 Ark. 51.

In appellant’s petition, it was alleged that the modification required appellee, in full discharge of alimony obligations, to pay $200 per month through December 1, 1966, or until the realty was sold and thereafter $150 per month for the next 12 months; that the realty was not sold until March 1,1967; and that only two of the payments at $150 per month were paid and the remaining payments were never made. Evidence to sustain these allegations was produced and not denied. In Ross v. Davis, 17 Ark. 113, this court said:

It is an unquestionable rule of chancery practice, that . where there is prayer for specific relief, and also a prayer for general relief, if the state of the case, as presented by the bill, should not be sustained by the evidence, or the court should, upon principles of equity, refuse or deny the special relief, it may, nevertheless, give the complainant, under his general prayer, any relief warranted by the facts set up in his bill; provided it be so framed, as that the defendant would not be surprised by the other relief granted, on account of the facts entitling him to it not having been put in issue.

Appellee has not intimated that he was surprised on this score or that the matter was not in issue in the trial court, even though in her brief here appellant clearly asserted her right to recover these 10 payments of $150 as a minimum. He relies upon appellant’s letter of January 13, 1967, and her failure to make any demand upon him until she filed her petition on September 2, 1971, which he suggests was after the expiration of five years from the date of the modification.

Where a prayer for a judgment was not included in the specific relief sought, we held that a chancery court was warranted in rendering such a judgment, in the absence of the element of surprise, because the facts alleged and proved warranted the rendition of the judgment. Morgan v. Scott-Mayer Commission Co., 185 Ark. 637, 48 S.W. 2d 838. In Grytback v. Grytback, 216 Ark. 674, 227 S.W. 2d 633, in the interest of justice, we modified a decree denying a wife a divorce but granting a divorce to her husband by allowing alimony of $20 per month. On rehearing, the husband insisted that this court arbitrarily granted relief on an issue that was not before the court. We recited the wife’s allegations that she was without funds to support herself and her prayer for temporary relief out of funds belonging to the husband and for all other equitable relief and pointed out that much of the testimony was directed toward the husband’s financial condition and ability to pay. We rejected the husband’s contention on the basis that the statement of facts in the pleading and not the prayer for relief constituted the cause of action and that the court may grant whatever relief the facts pleaded and proved might warrant. We said that they warranted the allowance of alimony and that the husband was in no position to plead surprise.

In Taylor v. Taylor, 224 Ark. 328, 273 S.W. 2d 22, another divorce case, upon the authority of Grytback we said:

We recognize that the prayer of the appellee’s complaint did not specifically ask for the exact property she was ultimately awarded, but this court is committed to the rule that the facts pleaded, and not the prayer for relief, form the basis of the cause of action and the court may grant whatever relief the facts pleaded and proved warrant, absent surprise to the adversary which is not present here.

We do not take the opening statement by appellant’s attorney to limit the relief to be granted in any way. It specifically asks that appellant receive all her back alimony payments and generally asks for any other relief that the court might see fit to grant.

Since we cannot say that the chancellor’s findings are otherwise against the preponderance of the evidence, we must affirm the decree as modified. Because of this recovery, appellant is allowed $500 for her attorney’s fees, and expenses over and above the costs of the case, which are taxed against appellee.

The cause is remanded for enforcement of the modified decree.

Byrd, J., dissents to the modification.

Conley Byrd, Justice,

dissenting. I dissent to that part of the majority opinion that awards the appellant a judgment for $1500 and attorney fees. That issue was raised for the first time on appeal. In her petition in the trial court appellant made the following prayer:

“WHEREFORE, Petitioner prays that the original contract and property settlement agreement be reinstated, for her arrearages to date since the Defendant stopped paying alimony, in the sum of:
1967 $2,100.00
1968 $2,400.00
1969 $2,400.00
1970 $2,400.00
1971 $1,600.00 (August inclusive)
for a total of $10,900.00 arrearages, for attorney’s fees and court costs, for a provision that support payments and alimony payments be made through the Office of the Master in Chancery, for setting aside of the order of August 4, 1966, for an increase in the support payments due the minor children in the sum of $200.00 per child per month or provision be made that a trust fund or other adequate insurance policy be taken out to insure the enforcement of this decree, for proof that the insurance policies that were ordered to be maintained until the college education was completed are still in force and for all other proper and equitable relief to which she may be entitled.”

At the hearing on the merits the trial court asked for opening statements. Appellant at that time concluded her opening statement with this statement:

“Therefore, at this time, Shirley Jackson is asking that the motion and order be set aside and the original agreement be reinstated, that she receive all her back alimony payments, that she receive the back child support payments, which she hasn’t received, that the defendant and respondent, Edwin Jackson, continue to pay medical bills for the children, that the support payments be raised in keeping with Mr. Jackson’s income, > standard of living and ability to pay, that she receive an attorney’s fee, costs, interests on all money that hasn’t been paid to this date, for the insurance policies which was ordered to be maintained by the Court to be reinstated or a provision made for adequate coverage for the children and for any other relief that the Court sees fit.”

As can be seen from both the prayer and opening statement, appellant did not ask for any relief under the August 4, 1966 order. Her only request was for relief under the original divorce decree and in her testimony before the court she only testified as to what she should recover under the original divorce decree. Consequently, I submit that the $1500 judgment here awarded by the majority was raised for the first time on appeal and at that time the five year statute of limitations had run.

While the majority seem to think that appellant’s January 13, 1967, letter to the effect that his $150 per month obligation was “retired with the February 1, payment” is not to be taken as a waiver or estoppel, I point out that no demand was made on appellee until the brief herein was filed in October 1972. Furthermore, it appears to me that the present Mrs. Jackson and her two children by appellee would have a right to rely upon the written waiver — for they, too, no doubt, rely upon appellee for support and financial assistance.

For the reasons stated, I respectfully dissent.

       The testimony is somewhat conflicting as to whether this request was for a temporary or permanent change of custody.


author: J. Fred Jones, Justice.

text:
    Ray Wayne MCGILL v. STATE of Arkansas
    5807
    490 S.W. 2d 449
    Opinion delivered February 19, 1973

      William C. McArthur, for appellant.

      Jim Guy Tucker, Atty. Gen., by Gene O’Daniel, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

The appellant, Roy Wayne McGill, was tried before a jury in the Pulaski County Circuit Court on four counts of forgery and four counts of uttering. At the close of the state’s case a verdict of acquittal was directed on the appellant’s motion as to the four counts of forgery, but his motion was denied as to the four counts of uttering. The jury found him guilty on the four counts of uttering and he was sentenced to three years in the penitentiary on each count.

On appeal to this court the appellant first contends that the trial court erred in allowing the state to introduce handwriting exemplars taken from him without cause and without advising him of his constitutional rights. He next contends that the trial court erred in failing to grant a mistrial because of remarks made by the prosecuting attorney pertaining to the dismissal of the forgery counts. He also contends that the trial court erred in denying his motion for a directed verdict as to count Nos. 4 and 6 of the information because the evidence was insufficient to sustain the charges.

The background facts and evidence appear as follows: Mr. and Mrs. George Inman owned and operated a household moving company under the name “Little Movers” in North Little Rock, and used printed check forms on the Twin City Bank in connection with their business. Upon being advised that their bank account was overdrawn, they learned that four printed check forms had been taken from the back of their checkbook. The checks had been signed with the name “Claude Ingram” as maker and were made out to “James E. Waddle” as payee. They were all endorsed with the name “James E. Waddle” and were separately uttered at Gibson’s Discount Store, the Magic Mart, Don’s Model Market and a Weingarten grocery store.

Both Mr. and Mrs. Inman identified the checks as their company forms written on their company account, they denied that they issued the checks or that they were acquainted with a Claude Ingram or a James E. Waddle. They testified that they had never met the appellant. Both Mr. and Mrs. Inman testified that none of the writing on the checks involved was their writing.

Mr. Edward Jackson testified that he was the assistant manager of Magic Mart and that the check, state’s exhibit No. 4, was given to Magic Mart to be deposited in the store’s account. He testified that as a general requirement the clerks who take checks require that the check be endorsed in their presence and are required to compare the endorsement on the check with the signature on the endorser’s state driver’s license. This check bore the state driver’s license No. 0723-9360 beneath the endorsement “James E. Waddle.”

Jean Davenport testified that she is employed as “booth operator” at Weingarten’s; she identified state’s exhibit No. 1 as a check she cashed on January 14, 1971, made out to James E. Waddle for $132.50. She positively identified the appellant in open court as the man for whom she cashed the check and testified that he endorsed the check as James E. Waddle in her presence.

Sandra Maddox testified that in January, 1971, she was working at Gibson’s in North Little Rock and that her principal duty was to report to the information desk and cash checks. She testified that she cashed the check which is state’s exhibit No. 3 in January and wrote a driver’s license number on the back of it. She testified that the check was for $132.50 and she identified the appellant in open court as the person for whom she cashed the check. This check also bore the state driver’s license No. 0723-9360 beneath the endorsement “James E. Waddle.”

Mr. Bob Bonner testified that in January, 1971, he was working at Don’s Model Market in Sherwood and cashed the check which is state’s exhibit No. 2 and that it is a policy of the market to have the person who cashes the check to endorse it on the back. He testified that the endorsement on the back of state’s exhibit No. 2 is “James E. Waddle.”

Mr. J. A. Scharfenberg, a detective in the North Little Rock Police Department, testified that he picked up the four checks involved after he received complaints alleging that the checks were forgeries. He said that Mrs. Inman advised him that a girl whose nickname was “Sam” might have taken the blank check forms from her checkbook. He said he located “Sam” and through her, his investigation led to a Mrs. Boyd. He testified that he was already acquainted with Mrs. Boyd and had talked with her on several occasions. He said that Mrs. Boyd advised him by phone that the appellant and another named individual had cashed the checks. He then went to the state penitentiary where the appellant was serving a sentence on another charge and took handwriting exemplars from the appellant. He said that he explained to the appellant what case he was investigating and advised the appellant that he was a suspect in the case. He said that he then asked the appellant for handwriting exemplars and that the appellant complied without objection. He testified that he did not advise the appellant of his constitutional rights but only told him to write the names “James E. Waddle” and “Claude Ingram.”

Mr. Jack Buckley, special agent for the FBI, testified for the state as a handwriting expert. He testified that there was no doubt in his mind whatever, that the handwriting exemplars and the handwriting on the four checks were all in the handwriting of the same in-, dividual.

In support of his first assignment of error, the appellant argues that the trial court erred in accepting in evidence the handwriting exemplars and related evidence, because Officer Scharfenberg had no probable cause for taking the exemplars and because he failed to advise the appellant of his constitutional rights prior to the execution of the exemplars. In support of this argument the appellant relies heavily on the United States Supreme Court decision in Davis v. Mississippi, 394 U.S. 721, and the United States District Court decision from the Western District of Missouri, United States v. Long, 325 F. Supp. 583. In the Davis case finger and handprint exemplars were taken and used as the sole incriminatory evidence in a rape case. The conviction of Davis was not reversed because handwriting exemplars are not admissible in evidence on constitutional grounds. The conviction of Davis was reversed because of the “dragnet” procedure followed in securing the exemplars, and all without probable cause. The state conceded in the Davis case that there was neither a warrant nor probable cause for the arrest of Davis.

In United States v. Long, supra, Long was indicted for forging a government check. A federal agent took handwriting exemplars from Long while he was in the custody of state officers on a state charge. By stipulation it was agreed that at the time the government obtained the handwriting exemplars, the government did not in fact have probable cause to believe the defendant had endorsed the check involved.

The United States Supreme Court has very recently distinguished the Davis and Long cases from the case at bar in United States v. Dionisio, (Slip Opinion), decided on January 22, 1973, on certiorari to the United States Court of Appeals for the Seventh Circuit. In that case Dionisio was held in contempt of court for refusing to comply with a court order to give voice exemplars for comparison with the recorded conversations that had been received in evidence. In refusing to furnish the voice exemplars, Dionisio asserted that these disclosures would violate his rights under the Fourth and Fifth Amendments. The Court of Appeals reversed the District Court decision on Fourth Amendment grounds and in reversing the Court of Appeals, the United States Supreme Court distinguished the case of Davis v. Mississippi, supra, in the following language:

“. . . in Davis it was the initial seizure — the lawless dragnet detention — that violated the Fourth and Fourteenth Amendments — not the taking of the fingerprints.”

The court concluded the Dionisio opinion as follows:

“Since the Court of Appeals found an unreasonable search and seizure where none existed, and imposed a preliminary showing of reasonableness where none was required, its judgment is reversed and this case is remanded to that Court for further proceedings consistent with this opinion.”

On the same day the Dionisio case was decided, the United States Supreme Court had before it the case of United States v. Mara, aka Marasovich, (Slip Opinion), on certiorari to the United States Court of Appeals for the Seventh Circuit. In that case the respondent, Richard J. Mara, was held in contempt by the District Court for refusing to give handwriting exemplars. The Court of Appeals for the Seventh Circuit reversed on Fourth Amendment grounds and in reversing the Court of Appeals, the Supreme Court said:

“Handwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person’s script than there is in the tone of his voice. See United States v. Doe (Schwartz), 457 F. 2d 895, 898-899; Bradford v. United States, 413 F. 2d 467, 471—472; cf. Gilbert v. California, 388 U. S. 263, 266—267. Consequendy the Government was under no obligation here, any more than in Dionisio, to make a preliminary showing of ‘reasonableness.’”

In a footnote to Mara, the court distinguished between handwriting exemplars for the mere purpose of comparing the physical characteristics of handwriting from writing which seeks to obtain written answers to incriminating questions or a signature on an incriminating statement which would run afoul of the privilege against self-incrimination under the Fifth Amendment. We find no merit in the appellant’s first assignment.

The appellant’s contention that the court erred in denying the defendant’s motion for a directed verdict as to count Nos. 4 and 6 of the information is also without merit. Counts 4 and 6 charged the appellant with uttering the two checks at Magic Mart and Don’s Model Market respectively. The employee witnesses from these stores did not make in-court identification of the appellant as the person who uttered the checks but the evidence stands undisputed that all four of the checks came from the same book. The in-court identification of the appellant as the person who endorsed and cashed two of the checks is likewise undisputed. Special Agent Buckley’s testimony to the effect that the checks referred to in count Nos. 4 and 6 of the information were endorsed in the handwriting of the appellant, together with the other evidence including the state driver’s license number on two of them, is sufficient evidence to sustain the jury’s verdict that the appellant was guilty under count Nos. 4 and 6 of the information.

We are likewise of the opinion that the appellant’s third contention is without merit. In his opening statement to the jury the state’s attorney mentioned the fact that the appellant was charged with forgery and uttering. A verdict was directed for the appellant on the forgery charges at the close of the state’s case, and in his closing argument to the jury the attorney for the state stated:

"Ladies and gentlemen, I come to you a little red faced now. The Judge has, as he told you, taken from your consideration the forgery counts in this Information. This Information charged this defendant, as I told you in opening, with four counts of forgery and four counts of uttering. You can no longer consider whether or not he forged this check, but whether or not he passed it. It was a stupid mistake on our office’s part because we alleged by mistake that he forged all of this on the face —”.

At this point the attorney for the appellant moved for a mistrial and stated:

"I don’t think the State is entided to go into the reasons behind the granting of a directed verdict. I think it is improper and prejudicial. The ruling of the Court has been made, the jury has been made aware of it, neither attorney then is entitled to comment upon it. This is what the State is intending to do.” (Emphasis supplied).

The trial court then stated:

“I don’t think there has been any prejudice at this point. He is merely stating what the Court has already stated and that is: That it has been removed from their consideration.”

At the appellant’s request, the court again explained to the jury his action in directing the verdict and in doing so, said: “. . . there was a complete failure of proof on the forgery.” Some colloquy continued between the attorneys and the court, but the trial court has considerable discretion in controlling the argument of attorneys at jury trials and we cannot say that the trial court abused his discretion or erred in his finding that there was no prejudice to the appellant in this case.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Paul H. POWER v. Eugene W. HOWARD
    5-6043
    490 S.W. 2d 435
    Opinion Delivered February 19, 1973

      Hensen ir Faubus, for appellant.

      James L. Sloan, for appellee.
   Conley Byrd, Justice.

This litigation arises out of the acquisition by the appellant Paul H. Power and appellee Eugene W. Howard of a 60 acre tract of river frontage near North Little Rock, Arkansas. In the trial court case No. 72452, Howard alleged a joint venture between himself and Powers to acquire the land. Paragraph (b) of the complaint alleged that it was agreed between the parties that Howard was to use his equipment to improve the land and that the rate for this type of improvement would be $20 per hour, one-half of which was to be paid by Power. In this complaint, Howard sought to recover $38,150. In the pleadings, Power admitted the joint venture but denied the agreement to improve the property.

In trial court case No. 72807 Howard brought suit to recover one-half of the expense of moving and repairing a dredge purchased by the parties to improve the property involved in the other suit. These two suits were consolidated, along with a suit by a corporation controlled by Powers against Howard and were heard by the trial court sitting as a jury. The trial court’s findings and conclusions were set out in a memorandum opinion as follows:

“This Opinion involves three cases which were consolidated for trial.

In analyzing the evidence submitted we find certain basic and important undisputed facts such as:

(1) Mr. Howard and Mr. Power in August of 1968, acquired approximately Sixty (60) acres of land having substantial river frontage for a consideration of $25,000.00 Each party invested $12,500.00 in said purchase price.
(2) An option to purchase this land was obtained on June 5, 1968, and notification was given to the then owner on July 31, 1968, that such option would be exercised.
(3) Messrs. Howard and Power possessed ambitious ideas for the development of a port facility and shared their optimism with the North Little Rock Port Authority on August 9, 1968. (See Plaintiff’s Exhibits 15 and 16 for further documentation.)
(4) On July 5, 1968, in furtherance of their project, the parties purchased a used steel dredge barge from owners located in Farmersville, Louisiana, for the sum of $10,000.00. It was understood that this piece of equipment had to be transported to the local site at a substantial cost and that, upon arrival, certain repairs to same would be necessary. The money used in purchasing the dredge was obtained from Fidelity Savings and Factoring Company. Mr. Power has paid his portion of this indebtedness ($5,000.00) but Mr. Howard has failed to remit his $5,000.00 although he admits owning same.
(5) The relationship of the parties became strained in late September, 1968.
(6) On October 1, 1968, Power and wife indicated their willingness to sell out to Howard for a cash consideration of $50,000.00. As of October 8, 1968, an offer was made by Power to Howard to sell his interest in the land and dredge for $45,500.00 subject to certain conditions. (Defendant’s Exhibit 17).
(7) On December. 5, 1968, the parties formally listed the Sixty (60) acre tract for sale with Block Realty Company. The listing price was $250,000.00. In the contract with Block, it was stipulated that a dredge was available as an extra item for $20,000.00 and that a large part of property needs fill, dredge could fill for $1,000.00 per acre.

In the Court’s opinion facts set forth in Paragraphs 1 through 4 constitute the relationship of joint venture.

As to cases numbered 72452 and 72807 the facts and figures submitted by plaintiff appear to be inflated and not supported by an important element which I classify as ‘accomplishment’.
Too, it is believed plaintiff Howard continued to incur expenses when he knew or reasonably should have known that completion of their proposed project was impossible. The relationship between joint ventures is fiduciary in character and imposes on participants an obligation of loyalty, utmost good faith, fairness, honesty, and full disclosure. The testimony submitted has been carefully scrutinized in the light of these essential elements.
In case No. 72452 plaintiff seeks recovery for one-half of $38,185.00 allegedly expended by him in fulfilling his obligation. Being unable or at least unwilling to completely accept the testimony of plaintiff as to the documentation of such expenditures search of the record was made to determine if there could be found other evidence of greater probative value. As indicated in Paragraph 7 the parties themselves supplied the answer accepted by the Court wherein they put potential purchasers on notice that ‘dredge could fill for $1,000.00 per acre’.
Plaintiff testified that 10 or 15 acres had ‘been moved to the center’. I give plaintiff credit for the higher acreage mentioned by him and, therefore, conclude he had an expenditure of $15,000.00. As I construe the pleadings filed in this case for all work done by plaintiff compensible at the rate of $20.00 per hour the defendant would invest into the lands for further improvements the sum of $10.00 for each hour of work performed by plaintiff. Accepting this 2 for 1 ratio to represent the agreement of the parties Mr. Howard would be entitled to a judgment against Mr. Power in the amount of $7,500.00.
In case No. 72807 recovery is sought for one-half of $8,258.74 which again was allegedly expended by plaintiff in transporting the dredge from Louisiana to Arkansas and repairing same upon arrival. These alleged charges have not been allowed in full. I can only say as the trier of fact I find the cost of transportation to be excessive and that the alleged repairs to the dredge are not supported by sufficient substantial evidence to justify the total amount asked by plaintiff. The sum of $5,000.00 has been allowed. It is recognized that the dredge was moved from Louisiana to Arkansas and it is logical to believe that certain repairs were made thereon. Because of these factors judgment will be given Mr. Howard for one-half of this amount, $2,500.00.
In case No. 72149 it is admitted that Mr. Howard owes Fidelity Savings and Factoring the sum of $5,-000.00 plus interest. Judgment will be rendered for such sum as might be due after the accrued interest is calculated.”

For reversal, appellant relies upon the following points:

“I. The trial court erred in finding that a joint venture existed.
II. The trial court erred in finding for the appellee when all of the facts support the conclusion that no improvements were made to the land and that appellee did not do any of the work alleged by him as reflected by his so called typewritten ledger sheets.
III. The lower court based its findings upon speculation and conjecture which is error.
IV. The court erred in allowing the appellee his alleged costs instead of allowing the appellee the amount by which such improvements enhanced the value of the land.
V. The trial court erred in allowing a judgment for appellee as an individual in case number 1 and in case number 2 when all of the alleged improvements to the land and alleged transportation costs and repair costs to the dredge were done with equipment owned by A-l Enterprises or by employees of A-l Enterprises, Inc., a corporation.
VI. The court erred in awarding a judgment to the appellee when the appellee by his own admission admitted that the appellant didn’t owe him anything.
VII. The trial court erred in dismissing appellant’s cross complaint against A-l Enterprises, Inc.
VIII. The court erred in admitting into the evidence plaintiff’s exhibit 6 and 8. These exhibits reflect certain work done by the appellee on the land owned by the parties and expenses incurred for the transportation and repair of a dredge which the parties purchased in July 1968. The title to this dredge was transferred to the Arkansas Dredging Company on August 19, 1968.”
IX. The Award in case number 2 is excessive.”

The record with regard to points I through IV shows that Howard testified that he and Powers entered into an agreement not only to purchase the property but also to improve the property upon the basis that Howard would do the work with his equipment at the rate of $20 per hour and that Power would pay one-half thereof up to $200,000. In connection therewith he testified that when his machinery was not excavating sand and dirt for sale, it was busy moving dirt to the center of the property in accordance with some architectural plans so that the property could be used as a river port and public warehousing area. Through himself and his secretary he introduced business records showing that he had made improvements totalling $38,185, after giving Power credit for dirt royalties and rent. Power denies that there was an agreement to improve the property but admits the purchase of the dredge and also an appearance before the North Little Rock Planning Commission, where there was much talk about the improvements being made. In addition to the oral testimony there were many exhibits introduced some of which contained the names of both parties, such as the listing contract. Furthermore during this time the parties jointly purchased a dredge that was to be used in connection with the property.

Points I through IV. We find no merit in the contentions made here. Under the law it is the duty of the trial court, when sitting as a jury, to weigh the evidence and to resolve all doubts as to credibility. This is because the trial court views the parties and the witnesses as they testify and because of this he has the advantage of the so-called “body-english” — i.e., that which is said or not said and that which is demonstrated by movement of the hands or other parts of the body. On reviewing such a finding, this court is limited to a determination of whether there is any substantial evidence to support the trial court’s finding. In doing so we must view the record in the light most favorable to the appellee. We make this explanation because appellant’s argument is more in the nature of a jury argument as to who should or should not be believed.

Had the trial court found the appellee’s record documentation to be completely without probative value, we would be inclined to reduce the judgment to the minimum of ten acres where Howard testified to the moving of ten to fifteen acres. However, as we read the trial court’s finding he weighed both the record documentation and the oral testimony in arriving at the conclusion that Howard had expended $15,000 to improve the lands. On the record, we cannot say that there is no substantial evidence to support the findings of the trial court on the issue of a joint venture and the amount of the improvements. Since the appellee alleged and proved a contract to share one-half of the cost of improving the land, there is no merit to the suggestion that the court should have allowed only the enhanced value of the lands.

POINT V. There is no merit to the contention that the court erred in allowing a judgment for appellee in his individual capacity. The proof shows that A-I Enterprises, Inc. was a family corporation owned completely by appellee, his wife and son and that all improvements were made by a special arrangement with ' the corporation.

POINT VI. This argument arises over the.assignment of Howard’s purchase money note to the First American National Bank by Power. At the time of the transfer, the bank refused to accept the note because of an alleged set-off. There is a dispute between the witnesses as to the set-off involved and as to what was said by Howard at the time. The trial court had a right to believe Howard’s version.

POINT VII. Power is not in a position to complain of the dismissal of his cross-complaint against A-I Enterprises, Inc., for royalties allegedly due. There is no proof as to royalties other than those for which he was given credit by Howard. Thus having received full credit for the royalties due, he is not in a position to complain.

POINT VIII. Appellant here contends that certain records were prepared only for purposes of the trial and were not actually business records. Here again, there was proof to the contrary and we cannot say there is no evidence to support the trial court’s findings.

POINT IX. Finally appellant argues that the award for moving and repairs to. the dredge is excessive. Since there is proof in the record that would have sustained a larger award, we find no merit in this contention.

Affirmed.

Jones, J., dissents.


author: Frank Holt, Justice.

text:
    David MILLER v. STATE of Arkansas
    5808
    490 S.W. 2d 445
    Opinion Delivered February 19, 1973

      Carpenter, Finch ér McArthur, for appellant.

      Rodney Parham, Atty Gen., by: Frank B. Newell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was charged by separate felony informations with two violations of Article IV of Act 590 of 1971 (Controlled Substance Act); namely, the alleged delivery (sale) of marihuana and codeine. Ark. Stat. Ann. § 82-2617 (1971 Supp.). Subsequently, the charges were reduced to misdemeanors. The trial court, sitting as a jury, found appellant guilty on both charges and sentenced him on each offense to one year confinement with six months suspended.

For reversal of the marihuana conviction appellant asserts that the evidence is insufficient to sustain the verdict “on which another defendant had entered a plea of guilty and had been sentenced.” He recognizes that in misdemanors there is no distinction between accessories and principals. Hubbard v. State, 10 Ark. 378, 5 Eng. 378 (1850). In Price v. City of Trumann, 213 Ark. 50, 209 S.W. 2d 284 (1948), we reiterated that “‘[A]ll who procure, participate in, or assent to the commission of a misdemeanor, are punishable as principals.’” Furthermore, the distinction between accessories and principals has been abolished in all criminal cases. Ark. Stat. Ann. § 41-118 (Repl. 1964), (Init. Acts No. 34, 1936, Acts 1937, p. 1384). He maintains, however, there is no proof of his guilt as principal. We cannot agree.

On appeal we review the sufficiency of the evidence with all reasonable inferences deducible therefrom in the light most favorable to the appellee and if there is any substantial evidence to support the finding of the trier of facts, we must affirm. Mumphrey v. State, 251 Ark. 25, 470 S.W. 2d 589 (1971). In the case at bar, a police officer, working undercover for the. narcotics division, testified “the defendant [appellant] there, David Miller, wanted to know if I’d like to buy some grass ### and told me it was fifteen dollars a lid, so I told him I’d take two lids.” “Ronnie [Brown, co-defendant] reached under the [car] seat and he gave it to Miller and Miller handed it to me, and I handed Miller the money and Miller handed the money to Ronnie Brown.” Miller was driving the car. The substance purchased was analyzed and identified as marihuana. Although Brown pleaded guilty to the sale of marihuana, we find the recited evidence, when viewed most favorably to the state, is amply substantial to support the finding that appellant, also, was an active participant in the illegal transaction and guilty as a principal.

Neither can we agree with appellant’s contention that the evidence is insufficient to sustain the verdict as to the sale of codeine “in that the State failed to prove that the drug involved was one that would be listed in any of the schedules as a ‘controlled drug’.” Appellant admitted that he offered to sell the officer some “reds” or codeine and about an hour after the marihuana sale appellant returned, as agreed, and sold this same officer 40 tablets with codeine which he had acquired by a prescription for his own use as a muscle relaxant. It is argued that no proof was presented to show that these Soma tablets with their codeine content are included in the Act. Appellant was charged uner Ark. Stat. Ann. § 82-2617 (1971 Suppl.), which provides:

“Criminal penalties. — (a) *** it is unlawful for any person to deliver *** a controlled substance.
(1) Any person violates this subsection with respect to* ^ ^ ^
(iv) a substance classified in Schedule V, is guilty of a crime and upon conviction may be imprisoned for not more than one [1] year, fined not more than $5,000, or both; “

§ 82-2615 provides that “[T]hat the controlled substances listed” in Schedule V include:

“(b) Any compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, which also contains one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer upon the compound, mixture, or preparation, valuable medicinal qualities other than those possessed by the narcotic drug alone:
(1) Not more than 200 milligrams of codeine, or any of its salts, per 100 milliliters or per 100 grams;”

It is undisputed that appellant sold 40 pills each containing one quarter or 16 milligrams of codeine. The criteria for inclusion in Schedule V is that “(1) the substance has low potential for abuse relative to the controlled substances listed in Schedule IV.” § 82-2612. In our view the proof is sufficient to subject the codeine tablets to inclusion under Schedule V as a "controlled substance.” There was testimony, as indicated, that the tablets contained 16 milligrams or one quarter grain of codeine and were available only be prescription. The compound or mixture (tablets) was medically prescribed for appellant’s use to "relieve pain in the back.” Obviously the prescription, with codeine, contained active medicinal ingredients which conferred upon the tablet valuable medicinal qualities. Therefore, although appellant legally possessed the tablets by a prescription, his sale of the compound or mixture is clearly prohibited by the Act and makes him subject to the criminal penalties therein.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Dannie Devoid PICKARD v. Sharon Stone STEWART
    5-6162
    491 S.W. 2d 46
    Opinion delivered February 26, 1973

      Atchley, Russell, Hutchinson, ir Waldrop, by: Victor Hlavinka, for appellant.

      Lynne Cooksey and Charles G. Hall, for appellee.
   Carleton Harris, Chief Justice.

Sharon Stone Stewart, appellee herein, instituted proceedings against Dannie DeVoid Pickard for damages allegedly sustained in an automobile accident on October 5, 1968. Appellant admitted liability but the cause was tried before a jury to determine the only remaining question — the proper amount of damages. A verdict was returned assessing damages at $6,000, and from the judgment so entered, appellant brings this appeal. For reversal, two points are asserted, it first being contended that the trial court erred in allowing into evidence statements by Dr. George M._ Hilliard that he made his examination at the request of, and was paid by, a liability insurance carrier.

Dr. Hilliard’s discovery deposition had been taken at the instance of counsel for appellant, but the deposition was offered at the trial by appellee. Ark. Stat. Ann. § 28-348 (f) (Repl. 1962) provides that the introduction into evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition. Appellant objected to two portions of the deposition being read, and moved to strike such portions, but the motion was denied by the court. Dr. Hilliard had been asked the occasion for his having seen Mrs. Stewart in 1968. The portion sought to be excluded then provides:

“Q. Back in 1968?
A. I was asked by Mr. Billy Stone of the Gulf Insurance Company to examine her with regard to possible spine injuries she may have received in an automobile accident in October of ’68.”

Subsequently, another portion included in the objection was read as follows:

“Q. Do you know who Mr. Billy Stone works for?
A. Yes, sir. I believe he said he works for the —he’s an agent for the Gulf Insurance Company in Tyler, Texas.
Q. Okay. And did Gulf Insurance pay your bill for that first visit?
Q. Yes. On December 12th, 1968.”

The objections were made on the basis of the contention that these answers unnecessarily injected the existence of insurance in the case, and, says appellant, were prejudicial, entitling him to a reversal of the judgment. We have held in numerous instances that unnecessarily bringing to the attention of a jury that insurance is involved is reversible error. Strahan v. Webb, 231 Ark. 426, 330 S.W. 2d 291; Pekin Stave & Manufacturing Co. v. Ramey, 104 Ark. 1, 147 S.W. 83. We have also said that the injection of insurance coverage is not proper unless it is “relevant and pertinent to some issue in the case”. Industrial Farm Home Gas Co. v. McDonald, 234 Ark. 744, 355 S.W. 2d 174. The trial court, in overruling the objection, relied on Murray v. Jackson, 180 Ark. 1144, 24 S.W. 2d 960, where a physician, testifying on behalf of the defendant, was asked on cross-examination for whom he made the examination, the witness replying that he did not remember, but believed it was for an insurance company; further that the Southern Insurance Company asked him to make a report on the case. The defendant contended that the question was asked solely for the purpose of showing an insurance company was defending the case, and that the question and answer constituted prejudicial error. Commenting that the cross-examination under the circumstances was permissible, we said:

“....The testimony of the physician introduced by the defendant tended to contradict the testimony of the physician introduced by Mrs. Jackson as to the character and extent of her injuries and as to the necessity of expending the money that was expended for her for hospital bills and attendance by nurses and a physician. The cross-examination was proper for the purpose of impeaching or contradicting the witness. The jury might have found that the employment of the physician made him biased in favor of the defendant, or at least tended to show the interest of the witness in the case.”

The facts of that case are not here applicable for reasons subsequently pointed out.

Appellee also asserts that the instant case should be decided on the basis of our decision in Lin Manufactu ring Co. of Arkansas v. Courson, 246 Ark. 5, 436 S.W. 2d 472, but we do not agree. There, the appellee was asked on cross-examination at whose instance he went to see a Dr. Reed and he responded “Well, because the insurance company or someone - - -”. In holding that error had not been committed, we stated that the question itself was apparently asked in sincerity; that, under the circumstances, there was a valid reason for asking it, and when a question is asked in good faith rather than in a deliberate attempt to prejudice the jury, an admonition by the court is ordinarily sufficient to correct the error. That situation is not present in the case now before us. In the first place, here, the evidence was offered by the plaintiff, appellee herein. In the next place, it does not appear relevant nor pertinent to any issue in the case that had arisen. Certainly, it was not an answer given “accidentally”; to the contrary it was deliberately offered, and not for the purpose of impeachment. In other words, we agree that the answers unnecessarily injected the existence of insurance in the case. Counsel for appellee contends that if deemed improper, counsel for appellant could have moved that the court admonish the jury not to consider the evidence under discussion; that in fact, the court offered to so admonish the jury, but counsel for appellant declined to have this done. However, as heretofore pointed out, we have held that an admonition is ordinarily sufficient to correct the error where the reference to insurance occurs in good faith. Here, the objection to the testimony was offered before the deposition was ever read, and it is, of course, apparent that the evidence was intentionally introduced.

The second point for reversal relates to the answer of Tommy Stewart, the husband of appellee, to a question propounded to him on cross-examination by counsel for appellant. The witness was asked about money he paid for repair of his car and he replied, “Well, that was the money that I got from your company”, and appellant says that this, too, unnecessarily injected the question of insurance into the case. We cannot pass on this contention since the record does not reflect that any objection was made, and, for that matter, it is not likely to recur at another trial.

Because of the error discussed in point one, the judgment is reversed and the cause remanded.

It is so ordered.


text:
    BORDEN, INC v. R. L. WOMMACK, executor of the estate of Martin RONNING, deceased
    5-6189
    490 S.W. 2d 781
    Opinion delivered February 26, 1973

      Putman, Davis & Bassett, for appellant.

      Wommack & Lineberger, for appellee.
   Carleton Harris, Chief Justice.

Appellee, R. L. Wommack, executor of the estate of Martin Ronning, instituted suit against appellant, Borden, Inc., on March 18, 1971, seeking damages resulting from an alleged unreasonable delay on the part of Borden in registering a transfer, and delivering back to the executor, certain shares of its corporate stock. The damages sought were based upon a decline in market value of such stock between the date that the stock (according to appellee) should reasonably have been transferred and delivered, and the date of the actual transfer and delivery. Borden, appellant herein, responded to the complaint with a general denial. Thereafter, appellee filed “Request for Admissions of Fact” which were answered by appellant in due time. Appellant then filed a cross-complaint against A. G. Edwards & Sons, Inc., stockbroker, but no action has been taken on such cross-complaint. On March 3, 1972, appellee filed a motion for summary judgment against Borden, alleging that there were no genuine issues of material fact and that he was entitled to judgment as a matter of law. This motion was supported by the affidavit of Wommack, the verified complaint and appellant’s response to request for admission of facts. The trial court advised the litigants that the motion for summary judgment would be heard on March 23, and on March 20, counsel for appellant notified the court by letter that it declined to file any opposing affidavits, but wound up the letter by stating that it “would reserve the right to file opposing affidavits in the cause should the court decide that appellee’s motion was proper and meritorious, and would further request that the motion be set down for a hearing in the event it should become necessary.” On March 23, the court heard the mo-don, argued by counsel for both sides, and granted appellee a summary judgment in the amount of $7,376.00. From that judgment, appellant brings this appeal. For reversal, it is simply asserted that the court erred in granting summary judgment since material facts remained in dispute, and that the damages awarded by the court had no basis under the evidence or facts adduced.

Background of the litigation reflects that Martha Ronning owned a number of shares in Borden, Inc. at the time of her death on October 11, 1968. Her estate was probated in the Washington County Probate Court, and an order was issued out of that court distributing this stock. Nine hundred twenty-three shares were distributed to Martin Ronning, the surviving husband of Martha. According to the affidavit made by Wommack in support of appellee’s motion for summary judgment, he, as attorney for Martin Ronning, administrator of the estate of his wife, on . June 1, 1969, delivered all of the stock certificates, a certified copy of the order of the Washington County Probate Court, a certified death certificate, and other documents required to effectuate, the transfer of the stock, to the Fayetteville office of A. G. Edwards & Son, Inc. (hereafter called Edwards), directing that the securities be forwarded to the defendant or its duly authorized transfer agent for transfer and redistribution or reissuance in accordance with the order of the probate court. The balance of the supporting affidavit reads as follows:

“8. That immediately thereafter, I was informed by an agent of A. G. Edwards & Sons, Inc., that it had forwarded the aforesaid securities and all supporting documents to the duly authorized transfer agent for Borden, Inc., and requested that it reissue and redistribute said securities in accordance with the aforesaid Order of the Washington County Probate Court.
9. That subsequent thereto, I repeatedly demanded of the defendant, Borden, Inc., and its transfer agents, The Chase Manhattan Bank of New York City, New York, and the First National City Bank of New York City, that it transfer the aforesaid shares of stock, and more particularly the 923 shares which were to be delivered to Martin Ronning, and that it makes and deliver the proper and usual certificates of said transfer to Martin Ronning.
10. That despite said demands, the actual transfer and delivery of the aforesaid shares of stock was not effectuated until on or about June 22, 1970.
11. That I am familiar with the fair market value of Borden, Inc., stock. The aforesaid shares of Borden, Inc., stock had a fair market value on the respective dates as set forth below as follows:
DATE HIGH LOW CLOSE
(a) July 25, 1969 28 27# 27#
(b) June 22, 1970 19# 18# 19#
DATED: February 22, 1972.
/s/ R. L. Wommack
R. L. Wommack, Executor of the
Estate of Martin Ronning, Deceased”

Appellant did not file any affidavits until after the hearing, but on April 12, filed the affidavits of Kenneth J. Neagle, an officer of Borden, Inc., and H. P. Goodwin, an officer of the First National City Bank of New York, which succeeded the Chase Manhattan Bank, N. A. as transfer agent for Borden, Inc. These affidavits, though containing information that might well be pertinent, will not be discussed, since they were not considered by the trial court, and properly so, not having been filed until after the hearing on March 23. Accordingly, no controverting affidavits were presented by appellant, but this does not mean that appellee is entitled to the judgment. Of course, we have said many times that a summary judgment is proper only where there is no genuine issue as to any material fact, and the moving party is entitled, to judgment as a matter of law. Wilson, et al v. McDaniel, et al, 247 Ark. 1036, 449 S.W. 2d 944. Likewise, in UPI v. Hernreich, D/B/A Station KING. 241 Ark. 36, 406 S.W. 2d 317, we pointed out that though no controvertir^ affidavits are filed, the movant for the summary judgment still has the burden of establishing that there is no genuine material fact question, and this must be shown on the record as made. In other words, he cannot rely upon the failure of his adversary to controvert the facts set out in his own affidavit.

Without mentioning some matters set out in the affidavit that might require bolstering, we think the court clearly committed error in awarding summary judgment for $7,376.00 for the reason that we are unable to determine the basis for using the date of July 25, 1969. It will be noted that the court took the low figure of the fair market value of July 25, 1969 and the high figure of the fair market value on June 22, 1970, being a difference of eight points, and thus arrived at the amount of the verdict. The answer to why the date of July 25 was selected by the court, apparently of its own volition, is set out in appellee’s brief wherein he states that the court concluded that the transfer should have been registered and the stocks delivered within a period of approximately eight weeks, and appellee says that such a conclusion was justified. We are unable presently to agree with this last statement. While we certainly agree with appellee that waiting a year to transfer and deliver the reissued shares of stock was an unreasonable length of time, we are not able to say that eight weeks was reasonable; at least, there is nothing in the record to suggest the appropriateness of this date, nor any showing whatever that eight weeks was a reasonable period of time for reissuance of the stocks. Certainly, we cannot take judicial notice that eight weeks is a reasonable time.

Not only that, but the evidence offered by appellee in support of its motion is somewhat conflicting. While the affidavit of Wommack relates that the stocks were turned over to Edwards on June 1, 1969 and that he was immediately thereafter informed by Edwards that it had forwarded the securities and supporting documents to the transfer agent for Borden, this is somewhat in contradiction with the response to Request for Admission No. 9, answered by appellant at the request of appellee. Request No. 9 reads as follows:

“Request No. 9: Admit that prior to August 1, 1969 your duly authorized and appointed transfer agent, Chase Manhattan Bank of New York City, New York, received, with instructions for transfer, the following stock certificates:
NAME OF CO. CERTIFICATE NO. NO. OF SHARES
(Here is listed the certificate numbers and number of shares of stock sent in by appellee.)
Total number of shares: 1,844
Response: Admitted.”

Of course, “prior to August 1, 1969” could mean any date from June 2, 1969 through July 31, 1969. This was the only admitted evidence relative to when Borden received the stock certificates. There is nothing in Wommack’s affidavit and nothing in the pleadings that provides that information, and it will be remembered that the affidavits of appellant; being filed late, were not considered. Yet, the court fixed a date (July 25, 1969) which, according to the evidence considered in granting the summary judgment, could have been before appellant received the securities.

The court erred in granting the summary judgment.

Reversed and remanded.

       This pleading alleged that if any liability should attach to Borden, such was the sole and proximate result of the negligence of Edwards, it being asserted that Edwards caused the stock certificates to become lost after appellant had returned the re-issued certificates; that Borden and its transfer agents exercised due and ordinary care in both the issue of the transferred certificates and the replacement certificates for those lost by Edwards, and judgment over and against Edwards was prayed by Borden. Edwards appeared specially with a motion to quash, but the court has never passed on that motion.

       Martin Ronning died prior to the institution of the suit.

       Also appearing in the record are affidavits of Martin A. Jones, Assistant Treasurer of Chase Manhattan Bank, N.A., to the effect that he had forwarded the reissued stock to Edwards, and the affidavit of Michael E. Rogers, an officer of the Edwards Company that it had not received the stock. These affidavits were not made until May 4 and April 20, 1970, respectively, and the record does not reflect when they were filed as exhibits; they were not, of course, considered by the Washington County Circuit Court since they were not even in existence at the time the judgment was rendered.

       Hearsay. See Organized Security Life Insurance Company v. Munyon, 247 Ark. 449, 446 S.W. 2d 233, where we said:
      “It must be affirmatively shown, or appear from statements contained in any affidavit supporting or opposing a summary judgment, that it is based upon personal knowledge of the affiant, that the facts stated therein would be admissible in evidence and that the affiant is a witness competent to state these facts in evidence.”


text:
    Jesse PORTERFIELD et al v. Estate of P. B. PORTERFIELD, Deceased
    5-6176
    491 S.W. 2d 48
    Opinion delivered February 26, 1973
    [Rehearing denied March 26, 1973.]

      Joe W. McCoy, for appellants.

      J. E. Still, for appellee.
   George Rose Smith, Justice.

P. B. Porterfield, aged 90, died in July, 1971, survived by his widow, five sons, and a daughter. In this litigation two of the sons, the appellants, claim ownership of two certificates of deposit that were in their father’s possession at the time of his death. The probate court held the certificates to be part of the estate, there having been no completed gift to the appellants. We agree with the probate court.

On April 24, 1968, the elder Porterfield, then 87, went to his bank in Gurdon and purchased for cash the first of the two certificates, the pertinent language of which is as follows:

Savings Certificate of Deposit
No. 0107 Clark County Bank $12,500,000
Gurdon, Ark. April 24th, 1968.
P. B. Porterfield has deposited in this bank Twelve Thousand Five Hundred & no/100 Dollars, $12,500.00, payable to the order of Jesse Porterfield or Dildy Porterfield, Payee(s), in current funds on the return of this certificate properly endorsed 12 months after date, with interest at the rate of 5% per annum. . .
Automatically Renewable. Checks for interest will be mailed each 12 months.
No interest after three years from date. Non-negotiable.
/s/ Clayton Franklin
Authorized signature.
Not Subject to Check.

Three years later Porterfield purchased the second certificate, on a similar printed form, in the amount of $1,445.01, payable to Jesse Porterfield and Dildy Porter-field. Mr. Porterfield kept the certificates in a box in his home until his death. There is no contention that either certificate was delivered to the sons during their father’s lifetime.

The point is not altogether clear, but apparently the two sons knew nothing about the certificates until after their father’s death. In 1968, soon after the first certificate was acquired, Porterfield took the two sons to the bank, where they signed a signature card; but according to Clayton Franklin, the president of the bank, that transaction related only to Mr. Porterfield’s checking account, which contained about $800 at his death. Mr. Franklin also testified that during Mr. Porterfield’s lifetime the bank would not have permitted any of the three men to cash the certificates without all three signatures, but “if Mr. Porterfield died, in our way of thinking the money fell to the two remaining payees.”

The latter assumption by Franklin was incorrect, for the language necessary to create a survivorship interest in the sons did not appear in the certificates. Ark. Stat. Ann. § 67-552 (Repl. 1966); Washam v. First Nat. Bank, 248 Ark. 984, 455 S.W. 2d 96 (1970); Cook v. Bevill, 246 Ark. 805, 440 S. W. 2d 570 (1969). In fact, counsel for the appellants state candidly that there is no issue of survivorship in this case.

The question, then, is whether the proof shows completed inter vivos gifts of the two certificates. All the elements of such a gift must be shown by clear and convincing evidence. Mohr v. Hampton, 238 Ark. 393, 382 S.W. 2d 6 (1964); Bennett v. Miles, 212 Ark. 273, 205 S.W. 2d 451 (1947). In those cases we pointed out that there must be an actual delivery of the subject-matter of the gift to the donee or to some agent or trustee for him, “with a clear intent to make an immediate present and final gift beyond recall, and at the same time unconditionally releasing all future dominion and control by the donor over the property so delivered.”

Here the proof does not establish delivery, either to the two sons or to the bank as an agent to hold the funds for them. The donor's relinquishment of control must be immediate, unconditional, and beyond recall. Here Mr. Porterfield retained possession of the certificates of deposit, which by their own terms had to be returned to the bank as a condition to their payment at maturity. Furthermore, the bank would not have redeemed the certificates during Mr. Porterfield’s lifetime without his consent. Thus it appears beyond any question that the requisite unconditional relinquishment of control did not take place.

Moreover, the clear and convincing rule means that the gift must be established so definitely as to put the matter beyond any reasonable doubt. Here we think it decidedly unlikely that Mr. Porterfield intended to make an irrevocable gift of $12,500 (to mention only the first certificate) in 1968. Porterfield was not well-to-do. Apart from the $12,500 he had a small bank account, a few acres of land, and modest income under the federal Social Security laws. He was 87 years old. The sons were in their sixties, not dependent upon their father. The banker, Franklin, mentioned the fact that Mr. Porterfield, by putting his money into certificates of deposit, was able to obtain a greater rate of interest thah the bank had been paying upon his regular account. When the record is considered as a whole it cannot fairly be said that all the essential elements of gifts inter vivos have been established by clear and convincing proof.

Affirmed.