author: Sam Robinson, Associate Justice.

text:
    Bank of Bentonville v. Swift & Co.
    5-2419
    348 S. W. 2d 881
    Opinion delivered September 11, 1961.

      Little & Enfield, for appellant.

      James R. Hale and Charles L. Godo, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Bank of Bentonville, filed this action in the circuit court, alleging that appellee, Swift & Company, had purchased from one Dale Moore 2,499 turkeys valued at about $6,000 and had converted such turkeys to its own use; that the turkeys belonged to Bright & Son, and that appellant held a mortgage on them as part security for a note in the sum of $15,750.00. Swift answered, alleging that the mortgage covered other personal property in addition to the turkeys bought by appellee and that the mortgage also covered certain real estate. In addition, Swift, the appellee, alleged that there should be a marshaling of the assets covered by the mortgage and moved that the cause be transferred to equity. The motion to transfer was granted. In chancery court a motion by appellant to transfer back to circuit court was overruled. On a trial in chancery court Swift demurred to the evidence. The demurrer was sustained and a decree rendered in favor of Swift. The Bank has appealed.

There are two points to be decided: Bid the chancery court err in retaining jurisdiction, and if not, did the court err in sustaining the demurrer to the evidence ?

First, the chancery court had jurisdiction. If the Bank had a valid and enforceable mortgage, Swift & Company owned the turkeys subject to such mortgage, and may have had the right to a marshaling of assets. Not only did the mortgage held by the Bank cover the turkeys bought by Swift, but covered other turkeys, as well as a Ford truck and certain real estate. The marshaling of assets is a proceeding peculiarly within the jurisdiction of the chancery courts.

In 35 Am. Jur. p. 384, it is said: “Among the various precepts which govern the action of equity courts is the principle of marshaling, in accordance with which assets and securities of a debtor are resorted to or apportioned in such a manner as to secure protection to the rights of each of two or more creditors, or of a creditor and some person other than a creditor having an interest in such assets and securities.” [Emphasis supplied.]

In Bagley v. Weaver, 72 Ark. 29, 77 S. W. 903, the Court said: “This was a complaint for the marshaling of assets. The appellant stated that he bought and paid cash for land, and that another party had a mortgage on the same land and various other property, . . . It would have been inequitable to sell the property bought by complainant to satisfy the amount due upon the mortgage upon it and other property included in the mortgage without first exhausting that upon which the appellant had no lien or claim.”

Next, the chancellor did not err in sustaining the demurrer to the evidence. It was shown beyond a shadow of a doubt by the appellant’s evidence in chief that the plaintiff Bank authorized Mr. Bright, the mortgagee, to sell the mortgaged property. In Farm Bureau Cooperative Mill & Supply v. Swift & Company, 227 Ark. 182, 297 S. W. 2d 107, a case very similar to the one at bar, the Court quoted from Fincher v. Bennett, 94 Ark. 165, 126 S. W. 392: ‘ ‘. . . where the mortgagee authorizes or gives consent to the mortgagor to sell the mortgaged property, the mortgage lien thereon is discharged. Under such circumstances, a bona fide purchaser for value from the mortgagor obtains a good title to the property, whether he knew of the existence of the mortgage or not.” The Court also said in the Farm Bureau Cooperative Mill case, supra, that the demurrer to the evidence had been considered in the light of Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, and in giving the evidence its strongest probative force it did not make out a prima facie case. The same thing is true here. Regardless of what the Court in the case at bar may have considered in reaching a decision to sustain the demurrer, the fact remains that according to the evidence introduced by the Bank, it authorized Bright to sell the turkeys, and thereby waived its lien.

Affirmed.

Bohlinger, J., not participating.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    Foster v. Enarc Lumber Mfg. Co.
    5-2427
    349 S. W. 2d 341
    Opinion delivered September 11, 1961.
    [Rehearing denied October 16, 1961.]

      E. L. Holloway, for appellant.

      Dennis L. Berry, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a decree of the Chancery Court rendering judgment on a note and foreclosing a chattel mortgage. The consideration for the execution of the note was the loan of $5,000 from appellee, Enarc Lumber Company, Inc., to appellant, J. H. Foster, said loan being secured by a chattel mortgage on certain timber, sawmill equipment and trucks. After default on the obligation, evidenced by a note, the appellee commenced the instant action in Chancery Court praying that the appellant be restrained and enjoined from cutting and removing timber, for judgment on the note and for foreclosure of the chattel mortgage. A temporary restraining order was granted, without notice, upon the verified petition of appellee and the filing of a statutory bond in the amount of $2,000.

No effort was made by the appellant to avail himself of the statutory remedies for an early hearing for the dissolution of the temporary restraining order and the matter proceeded to trial in the regular course of events.

On trial, the Chancellor found that the note was past due and unpaid and rendered judgment for the appellee in the sum of $4,499.50. The court further decreed that if the judgment was not paid within 12 days the commissioner named in the decree should proceed to sell the mortgaged chattels for the purpose of satisfaction of the judgment.

Appellant prosecutes this appeal urging two grounds for reversal:

1. That the temporary injunction was wrongfully issued thereby entitling him to damages for such wrongful issuance.

2. That the court erred in decreeing foreclosure because the debt was not due at the time of the rendition of the decree.

This latter contention is predicated upon the assertion that the original note had been modified by a subsequent parol agreement to extend the time for payment. In fact, it is asserted that the note was superseded by •an oral undertaking to pay the same amount of money •at a later time.

We cannot agree with appellant’s first assertion for two reasons: (1) The restraining order was not wrongfully issued, and; (2) Appellant made no competent showing of any damage which he might have sustained as a result of the issuance of the restraining order.

Appellant cites Comer v. Woods, 210 Ark. 351, 195 S. W. 2d 542, and McCarty v. Wilson, 81 Ark. 115, 98 S. W. 682, to the effect that equity will not intervene hy way of injunction for the purpose of restraining a trespass where the remedy at law is adequate. Appellant asserts that there was no need for a restraining order since the timber in question was being manufactured into railroad ties which were being delivered to appellee with a part of the selling price of said ties to he credited against the note in question. Without attempting to discuss these matters at length, we find that there is a basic error in appellant’s reasoning. The appellant assumes that he was entitled to the possession of the timber in question in making the assertion that he should not have been restrained from cutting and removing the timber. From the time of the decision in Gilchrist v. Patterson, 18 Ark. 575, in the year 1857, this Court has held without exception that upon maturity of a mortgage debt and default in payment of such debt, the mortgagee is entitled to possession of the mortgaged property as against the mortgagor or any person holding under him. It is readily apparent that if the appellant was not entitled to the possession of the property, then, in that event, it would he legally impossible for him to assert any right to cut and remove timber and thereby deprive appellee of the possession to which it was entitled under the law. By the same token, if appellant had no right to the possession of the timber in question at the time of the entry of the temporary restraining order, then it would he an impossibility for him to suffer or sustain any damages by being deprived of the possession of said property. It is realized that this disposition of appellant’s first point is predicated upon the proposition that the note was past due and that appellant was in default whereas appellant contends that such was not the case. We will treat with this latter contention at a later point in the opinion.

We have stated that appellant made no competent showing of any damages which he might have sustained as a result of the issuance of the temporary restraining order. It is asserted that appellant testified that under average operations he could have produced some 6,000 railroad ties which would have netted him a profit of $3,000. The basic fallacy in this contention is that there is absolutely no showing to the effect that appellant could not have produced railroad ties from other timber. Therefore, his assertion of a $3,000 profit can avail him nothing because he has failed to show that he could not have manufactured ties from other timber.

Appellant vigorously asserts that there was a parol modification of the note and the substitution of an oral agreement for the solemn written obligation originally evidenced by the note. After a careful examination of the record, we are convinced that this contention is without merit for the following reasons: (1) The evidence offered as to the alleged modification was too vague, uncertain and indefinite to show such modification. (2) The alleged oral modification or substitution of a new obligation would be void for want of consideration. The appellant testified that one Still, an agent for the company, told him after the execution of the note and mortgage that the company did not make a practice of foreclosing on anyone. He further testified that the president of the appellee corporation told him on two or three occasions that as long as he was trying to produce ties from the timber in question and to pay his obligation, there would be no foreclosure. The only other evidence in the record which even remotely corroborates these assertions of appellee is the testimony of the witness Still. In his testimony, this witness unequivocally denied that he had agreed to any extension of time for the payment of the note in question. He did say that he had on other occasions told other individuals that if they hit a streak of bad luck, the company would give them another chance rather than foreclosing upon their loans. It should be observed that the appellant did not testify as to any definite date of extension but rather contented himself with vague generalities in quoting Still as to company policy. Insofar as the alleged statements of the President of the company (whom the appellant could not even identify by name), it may be said that the appellant failed to show that he was making any substantial effort to cut and deliver ties. However, even if such a showing had been made, the language ascribed to the president of the company is far too vague and indefinite to form the basis for the substitution of a parol agreement for a solemn written contract. Giving appellant’s testimony its fullest probative effect, it amounts to evidence of an indefinite extension of time for payment voluntarily made by appellee without any new promise or consideration moving from appellant. In Feldman v. Fox, 112 Ark. 223, 164 S. W. 766, a sharecropper sued his landowner-employer for an alleged “guaranteed” wage of $300 for making and gathering his crop. The sharecropper admitted that his original contract with the landlord provided that the sharecropper was to receive one-half of the proceeds of the crop together with payment for harvesting the one-half of the ■crop due the landlord at the rate of fifty cents per hundred pounds. The cropper offered evidence to the effect that early in the crop gathering season, he became dissatisfied and contemplated selling his interest in the crop to .another person whereupon the landlord undertook to guarantee the sharecropper the sum of $300 for planting, cultivating and gathering the crop in lieu of the original compensation agreed upon. A judgment was rendered in favor of the sharecropper and this Court ■reversed, saying in part:

“If no benefit is received by the obligee except what 'he is entitled to under the original contract, and the other party to the contract parts with nothing except what he was already bound for, there is no consideration for the additional contract concerning the subject-matter ■ of the original one. Thompson v. Robinson, 34 Ark. 44; 1 Brant on Suretyship & Guaranty, § 387; 1 Page on Contracts, § 312.”

Here the appellant parted with nothing except what 'he was already bound for an the appellee received no ‘benefit other than what it was entitled to under the original note. The facts in the case at bar and those in Feldman v. Fox, supra, are exactly parallel. "We are impelled to the conclusion, that there was no consideration for the alleged extension, modification or substitution and that the note was past due at the time of the commencement of the action in the trial court.

Affirmed.

Bohlinger, J., not participating.


author: Carleton Harris, Chief Justice.

text:
    Monts v. State.
    5002
    349 S. W. 2d 350
    Opinion delivered September 18, 1961.
    [Rehearing denied October 16, 1961.]

      No brief filed for appellant.

      J. Frank Holt, Attorney General, by Jack Holt, Jr., Asst. Attorney G-eneral, for appellee.
   Carleton Harris, Chief Justice.

Appellant was charged with feloniously damaging a dwelling house in the city of Little Rock by means of dynamite, or other explosive. On trial, he was convicted as charged in the Information, and his punishment fixed by the jury at five years imprisonment in the state penitentiary. From the judgment so entered, appellant brings this appeal. In his motion for a new trial, appellant sets out eight alleged errors as the basis for asking the Court to set aside the verdict of the jury, and to grant him another trial. These contentions are as follows:

“1. The verdict of the jury is contrary to law.

2. The verdict of the jury is contrary to the evidence.

3. The verdict of the jury is contrary to both the law and the evidence.

4. The Court erred in overruling defendant’s Motion to Quash the Information filed by the Prosecuting Attorney.

5. The Court erred in overruling defendant’s Motion to transfer the cause of action to the Juvenile Court of Pulaski County, Arkansas.

6. The Court erred in permitting police officers to testify to the admissions of the defendant when it was shown by the evidence that the defendant’s statements were given involuntarily.

7. The Court erred in overruling defendant’s Motion for a Directed Yerdict.

8. The Court erred in giving all of the State’s Instructions. ’ ’

No brief has been filed by appellant in support of the position taken, but we proceed to a discussion of each assertion made in the Motion, though not necessarily in the order set out.

Assignment Nos. 1, 2, 3, and 7 relate to the sufficiency of the evidence, and the court’s refusal to direct a verdict of not guilty. Monts was convicted of violating <§> 41-4237, Ark. Stats. (1947). On the night of February 9th, 1960, the home of Cartelyou and Juanita Walls, at 1500 S. Valentine Street in Little Rock, was damaged by an explosion. Henry B. Heiberger and Richard J. Poppleton, Agents of the Federal Bureau of Investigation, assigned to the Bureau Laboratory in Washington and specializing in explosives, testified that the explosion was caused by either a large quantity of black powder (a low order explosive) or dynamite (a high order explosive). Appellant was subsequently arrested and confessed his participation in the crime. We have held that the extrajudicial confession of a defendant, accompanied by proof that the offense charged was actually committed by someone, will warrant a conviction.' See Ezell v. State, 217 Ark. 94, 229 S. W. 2d 32, and cases cited therein. However, in the case presently before us, there is also additional corroborating proof. Earzie T. Cunningham, who lived in the vicinity of the Walls’ house, testified positively that he observed Monts and another man, about 11 p.m., going to the Walls’ home on the night of the bombing.

“I observed Monts. I didn’t know who it was driving the car, I turned the corner. The light flashed on him. I knew it was Monts. He proceeded then to the intersection of 15th and Valentine and a man joined him who I didn’t know, and proceeded to the Walls’ home, which I thought they was going to enter, but didn’t, and I then flipped my cigarette away and saw him run back up the street. I don’t know which way the other man went. I went on in the house.”

Cunningham testified that the two men stayed for about a minute before running away, and that two or three minutes later, he heard the explosion. We hold that the evidence was sufficient to sustain the conviction.

It is next contended that the court was in error in overruling appellant’s motion to quash the Information filed by the prosecuting attorney, appellant maintaining that the charge by Information is a violation of the provisions of the Fifth Amendment to the Constitution of the United States. The authority of the prosecuting attorney to charge persons with crime by Information is authorized in Amendment 21 to our state Constitution. Section 1 reads as follows:

“All offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the Prosecuting Attorney. ’ ’

In Penton v. State, 194 Ark. 503, 109 S. W. 2d 131, and Brocklehurst v. State, 195 Ark. 67, 111 S. W. 2d 527, we sustained the validity of Amendment 21, and held that the provisions of the amendment were not void as repugnant to Article 5 of the Constitution of the United States. In Gaines v. Washington, 277 U. S. 81, the United States Supreme Court held that prosecution by Information instead of by indictment is not a violation of the Federal Constitution.

It is also asserted that the court erred in overruling appellant’s motion to transfer the cause of action to the juvenile court of Pulaski County. As grounds for the motion, appellant asserted that he was 17 years of age, and a high, school student. Section 45-241, Supp. (Section 1 of Act 263 of 1953), provides:

“When any child under fifteen (15) years of age is charged in the Circuit Courts of this State with any felony, the Circuit Court or the Judge thereof where such charge is pending, may, at his discretion order and direct that the criminal charge and the file and record thereof be transferred to the Juvenile Court of the County where the charge is pending, for such disposition as the Juvenile Court may adjudge and determine. Any bail or appearance bond given for the appearance of such child in Circuit Court shall continue in effect in the Juvenile Court.”

Of course, appellant’s age at the time of the filing of the motion was 17, and in addition, it will be noted that the matter of ordering the transfer is left to the discretion of the Circuit Court. The aforementioned statute is somewhat in conflict with § 45-224 (Section 10, Act 215 of 1911), which provides that where a child under 21 years of age is arrested upon a warrant issued out of any of the courts of the state, “the judge of such court may, in his discretion, if he believes that the said child is either a dependent or delinquent child, dismiss the charge pending in such court and transfer such child to the juvenile court, there to be dealt with according to the provisions and spirit of this act.” It is not necessary to determine whether Act 263 of 1953 repeals by implication the apparent conflict contained in Act 215 of 1911, for, as noted, even under the provisions of the earlier statute, the matter of transfer is left to the discretion of the court. Under the facts and circumstances in this case, we find no abuse of discretion in refusing to grant the motion.

Appellant asserts that the confession given was involuntary, and the court erred in permitting the officers to testify to the admissions made. After hearing testimony relating the fact of the explosion, the damage occasioned thereby, and tbe probable canse of tbe explosion, tbe court retired to chambers, out of tbe presence of tbe jury, and proof was taken relative to tbe confession given, and admissions made. Monts stated that be was arrested on tbe Tuesday following tbe bombing, and taken to tbe Police Department, where be was questioned by several officers. He said that be was threatened by Special Agent Melford C. Runnells of tbe Federal Bureau of Investigation, and was struck on tbe temple by tbe agent with a steno pad; that one of tbe city detectives “kneed” him. Appellant testified that when food was finally offered him, it was not acceptable. “Well, it was some bologna and some non-flavored grits. I don’t like bologna.” He stated that be was questioned on Tuesday and Wednesday, and on Wednesday night was released and sent borne. His parents were permitted to visit with him on Wednesday, prior to bis release. Monts was re-arrested about noon tbe next day and returned to tbe city jail. He testified that be requested counsel, “which I didn’t get;” that Runnells and Officer Green of tbe Little Rock Police Department threatened him, and a third officer in tbe room struck him. “I think tbe other one bit me, I am not sure.” On Thursday evening, tbe prosecuting attorney went to tbe jail and talked with Monts, tbe latter admitting bis part in tbe crime. At this point, appellant’s testimony is somewhat confusing, inasmuch as be testified that be made no admissions until talking to tbe prosecuting attorney. Further, “Had anybody hit you? A. No, sir.” Admittedly, be made no request for an attorney at tbe time be was being questioned by tbe prosecuting attorney, nor were any threats made by anyone present. Monts stated that be was tired and sleepy while being questioned, and bad bad no occasion to sleep. Runnells, along with Little Rock city officers Robert Green and A. L. Halcomb testified that tbe confession was entirely voluntary. Tbe proof reflected that Bunnells asked the questions, and the other officers, along with Special Agent Webb of the F. B. I., were present. According to the evidence, Monts related that he met a Negro man, who had the dynamite; he (Monts) knew that it was an explosive, and went with the other to set it off; struck a match up against the brick foundation, the match breaking; his companion then took a match from a box and lighted the fuse, and he (Monts) ran. Bunnells stated that he asked the motive, and was told that appellant “thought if he did this, it would cause some commotion, and Cartelyou would be able to get some donations and money from up North, and he never could specify where or when or anything about it. ’ ’ The officers stated that Monts was not struck, threatened, or mistreated in any manner, and that no request was made for an attorney. O. W. Gibson, pastor of White Memorial Methodist Church, testified that he visited the appellant at the jail on Friday, and that the left side of appellant’s face was partially swollen. He stated that Monts related to him that the swollen face was caused by being struck by one of the officers, but that appellant was unable to distinguish between the federal agents and city detectives. The court held that the question of whether the confession was voluntarily given was a question of fact to be determined by the jury.

Upon returning to the courtroom, the aforementioned officers testified before the jury, reiterating that the confession was voluntary. Bunnells testified that he told Monts before any statement was made-that he was entitled to a lawyer, but there was no such request. The agent stated that no promises of any nature were made, or physical violence used at any time. The officers testified relative to the admissions made by appellant concerning his participation in the crime, and Bunnells stated that, in addition to the statement heretofore quoted as to motive, Monts also made some comment to the effect that his associate was to give him $50 for his part in the crime. Earzie Cunningham testified as earlier related in our discussion of whether the evidence was sufficient to sustain a conviction. Monts did not testify before the jury, but the Beverend Gibson repeated the testimony given before the court in chambers. However, Special Agent T. B. Webb of the F. B. I., in rebuttal testimony, disputed the evidence given by Gibson. Webb stated that he, with another special agent, Thomas J. Norton, talked to Gibson and made some notes of the conversation; that Gibson had said he (Gibson) had observed Monts’ head, but saw no marks, though appellant had told the minister that he had been kneed in the side by an officer. According to Webb, Gibson stated that he then asked appellant if the F. B. I. was present, and Monts replied that no F. B. I. agents were present, only police officers.

We think the court acted properly in submitting the issue of the voluntariness of the confession to the jury. In McClellan v. State, 203 Ark. 386, 156 S. W. 2d 800, this Court said:

“In such cases the practice approved by us, which was followed in the instant ease, is for the Court to hear the testimony in the absence of the jury as to the circumstances under which the confession was given, and if there is a substantial question as to whether it was freely and voluntarily made, to submit that question of fact to the jury, after admonishing the jury to disregard the confession unless it was found to have been voluntarily made.”

It certainly would not appear that the testimony of the officers relative to the admissions made by Monts, should have been excluded because of appellant’s claim that he had been mistreated. Of course, it is not unusual for a defendant who has admitted participation in a crime, to subsequently contend that he was mistreated by those conducting the examination. While several officers participated in the investigation and interrogation, it appears that Bunnells conducted most of the questioning. The record reveals that he had served with the F. B. I. for about ten years, and was working on the bombing case at tbe request of tbe Little Rock Police Department. Certainly tbis officer was familiar witb tbe fact that a confession obtained tbrongb coercion, threats, or duress, is inadmissible; also, that a defendant is entitled to an attorney if be so desires, and Runnells testified that be so advised Monts before any statements were made. Tbe Little Rock officers had also been connected witb tbe department for a long number of years— Halcomb for seventeen, and Green for fifteen. Against their statements were those of tbe appellant himself, and tbe Reverend Gibson, and a portion of the latter’s testimony consisted only of what be bad been told by Monts. Monts’ testimony (before tbe court) that at tbe time be made tbe oral statement to the prosecuting attorney, be bad bad no occasion to sleep, and was sleepy, is somewhat puzzling, in view of tbe fact that appellant bad gone borne witb bis father about 8:30 p.m. tbe night before, and was not re-arrested until noon the following day.

There was no error in allowing tbe testimony of tbe officers relative to tbe admissions made by appellant to go to tbe jury. Tbe court instructed tbe jury at length relative to whether tbe confession was voluntarily made, and the instruction was entirely correct, and in accord with our cases. Let it also be borne in mind that, aside from the confession, there was the independent evidence of Earzie Cunningham that he observed the defendant at the Walls’ home — saw him run away from the premises, and then heard the explosion.

Appellant also contends that the court erred in all of the State’s instructions given, but appellant did not make any specific objection to any of such instructions; an examination of same reveals that none are inherently erroneous. In Rutledge v. State, 222 Ark. 504, 262 S. W. 2d 650, we said:

“We find nothing in the instruction that would mislead or confuse the jury to the prejudice of appellant. It was not inherently wrong. Appellant made only a general objection. It was his duty, by a specific objection, to point out to the court any vice or error in this instruction in order to afford the trial court an opportunity to make corrections if necessary. This he failed to do.”

Finding no reversible error, the judgment is affirmed.

       “Every person who shall willfully or maliciously destroy or injure any enclosure, building, dam, raft, pile of wood, plank, board or other lumber, anv skiff, canoe, boat or other vessel, or any real or personal property whatsoever by means of dynamite, gunpowder, or other explosive, shall be deemed guilty of a felony, and upon conviction thereof, shall be fined in any sum not less than One Hundred [$100] Dollars nor more than Five Hundred [$500] Dollars or imprisoned in the State Penitentiary at hard labor for a term not less than [1] nor more than five [5] years or both, at the discretion of the court or jury trying the case.”

       This amendment was proposed Amendment 22, and some early cases have referred to it as Amendment 22.

       Section 46-302.4 Supp. also authorizes the Court to send minors under 18 years of age, who have been convicted of a felony, to the penitentiary “if in the judgment of the trial judge, such course may be expedient.”

         No written confession was taken by the prosecuting attorney, though a secretary was present keeping a record of the conversation. Monts had already, earlier in the day, executed a written statement before Special Agent Runnells, and Officers Halcomb and Green of the Little Rock Police Department.

       Actually, according to Runnells, three written statements were taken. In the first, Monts did not implicate himself, but only the man who was with him; the next was in his handwriting, and the third was typewritten, substantially a copy of the second; in the latter statements, Monts admitted his complicity in the crime.

       The statements in writing were introduced by the defense.

       “There is evidence here that the defendant made a confession. Before you can consider any confession as evidence, you must find, first, that he did make a confession; second, that the confession he did make was the one you heard on the witness stand; third, that when he made it he told the truth; fourth, that it was voluntarily made.
      In order for a confession to be voluntary you must find that it was made without hope of reward or fear of punishment. The basis of the statement that a confession must be voluntary is that the constitution of the State says that no person shall ever be compelled to give evidence against himself.
      The presumption of the law is that any confession made by a defendant, when he is in custody of officers, whether these officers be the sheriff, detectives, policemen, the prosecuting attorney, or any other officer, is involuntary and incompetent and cannot be considered by you.
      The effect of that presumption is to cast the burden of proof upon the state to prove by a preponderance of the testimony that the confession was voluntary. They must overcome this presumption of law to your satisfaction and show that the confession was voluntary.
      If you find that the defendant, during the time of his custody, was under the influence of officers at any time such as would make any statement or confession involuntary, the law presumes that this influence continues and makes all other statements or confessions made by him thereafter incompetent until the state shows by a preponderance of the testimony, that this influence has been removed.
      Before any statements or admissions made by the defendant can be used against him as evidence, such statements or admissions must have been freely and voluntarily made, and which such statements and admissions, if any, are induced by threats of harm, promise of favor, a show of violence, a putting in fear, or inquisitory methods are used to extort a confession, then the same is attributed to such influence and cannot be used against the defendant.”
      “The State has introduced evidence of confessions, and the Court now instructs the Jury that if you find that the defendant made the confessions involuntarily, by reason of duress, undue influence, brutality, then you should disregard such confessions entirely and not consider them as evidence.”


author: Ed. F. McFaddin, Associate > Justice.

text:
    Connelly v. State.
    5007
    350 S. W. 2d 298
    Opinion delivered September 18, 1961.
    [Rehearing denied November 6, 1961.]

      G. W. Lookadoo, Holt, Park & Holt, for appellant.

      J. Frank Holt, Attorney General, by Russell Wools, Asst. Attorney General, for appellee.
   Ed. F. McFaddin, Associate > Justice.

Tbis is tbe second appearance of this case. In September 1959 appellant, Mrs. Bonnie Connelly, was convicted in the Garland Circuit Court of second degree murder for the homicide of her husband, Joseph E. Connelly; and on her appeal to this Court the judgment was reversed for error in the admission of evidence. (See Connelly v. State, 232 Ark. 297, 335 S. W. 2d 723.) On retrial in the Garland Circuit Court in September, 1960, appellant was convicted of the crime of manslaughter (§ 41-2207, Ark. Stats.); and she now prosecutes the present appeal in which the motion for new trial contains forty assignments.

I. Sufficiency Of The Evidence. It was proved— in fact, admitted — that on April 28, 1959, appellant shot and killed her husband, Joseph E. Connelly, from whom she had been separated for several months. The homicide occurred at the home of Mrs. Connelly. She pleaded ‘ ‘ self defense and defense of her home to prevent threatened invasion by deceased for the purpose of assaulting her or offering her great personal violence.” The weapon used by Mrs. Connelly was one she had purchased in 1958. It was a 9-shot .22 caliber pistol. After the homicide the weapon contained five expanded and three unexpended shells. Appellant testified that about three o’clock in the afternoon on the day in question, Joseph Connelly tried to force his way into her home. She said he picked up a rock, cursed, and threatened to come in and kill her if she did not go outside. Thereupon, she took the pistol and went out; and she testified that in an ensuing struggle Connelly struck her and tried to pull her into the car, and that the first shot was fired accidentally. She claimed the other shots were fired merely to get Connelly to leave after he made additional threats.

Contradictory to the testimony of appellant and in support of the State’s case, there was the testimony of several neighbors who witnessed the affair. One neighbor, who lived about 150 feet away, testified that his attention was directed to the Connelly house by loud talking between Mr. Connelly and the appellant; that Connelly started toward his own car; that appellant was about ten feet away from Connelly when appellant fired two shots; that after Connelly entered his car appellant fired three additional shots. The witness saw no struggle between Connelly and appellant. There was other and additional evidence: an expert witness testified that the direction and course of the bullets in the body of deceased showed that appellant was at a place above her husband when she fired the bullets into his body. Since she was not as tall as her husband, such testimony would tend to negative her claim of a struggle.

Without further detailing of the evidence, we conclude that it was amply sufficient to support the jury verdict finding the appellant guilty of manslaughter. Section 41-2218, Ark. Stats., says:

“The killing of a human being in the heat of passion, by or with a dangerous weapon, in any case except wherein the killing is herein declared to be excusable or justifiable, shall be adjudged manslaughter.”

II. Rulings In Regard To Evidence.

(A) The State was allowed to show that there were three Connelly cases pending. One was a Circuit Court case styled “Mrs. Bonnie N. Connelly v. Arthur P. Connelly and Mrs. Jeannette M. Connelly,” suit for damages. The second was a Chancery case styled “Bonnie Jo Connelly, a minor, Ex parte,” petition to remove disabilities. The third was a Chancery case styled “Joseph E. Connelly v. Bonnie Nichols Connelly,” suit for divorce. The State offered merely the record of the filing and not the contents of the pleadings; and the Court specifically limited the testimony in the following ruling: “They will be introduced on that basis only, that they show the records as they exist here in Garland County, Arkansas, between the various parties involved and the contents thereof . . . will not be divulged to the jury.” We find no error in the Court’s ruling. The fact that Mr. and Mrs. Connelly were estranged was admitted all during the trial; and so no prejudice resulted from the evidence here offered. Furthermore, in Spivey and Lynch v. State,-114 Ark. 267, 169 S. W. 949, we said:

“As a fact to show the feeling and relation of the parties to each other, it was competent to show the pendency of the divorce suit between them. The pend-ency of the suit, the parties to it, and the grounds of the complaint or cross-complaint, whether for desertion, adultery, cruel treatment, etc., might properly have been admitted in evidence as showing the state of feeling between the parties and as indicating the motive for the killing. Binns v. State, 57 Ind. 46; Pinckerd v. State, 13 Texas Court of Appeals 468; McClain on Criminal Law, Vol. 1, § 416.”

(B) On rebuttal the State was permitted to call Arthur Connelly, who testified in regard to a controversy that occurred in March, 1957, at the Connelly printing office, a business owned by Mrs. Jeannette Connelly and operated by the witness, Arthur Connelly, and his brother, Joe Connelly, the deceased. The appellant had testified on direct examination:

“We have always had difficulties due to in-law interference, but the main difficulty that led to this accident started when I was employed at Connelly Press, and there was an incident at Connelly Press where my mother-in-law and brother-in-law hit me and my husband took my side of it and after that period of time I would say that was when it started really after that period of time.

“Q. What was the date of that, if you recall, the month and year?

“A. It was in latter March, I think it was March 25, 1957.”

To rebut Mrs. Connelly’s testimony, the Court permitted Arthur Connelly to testify:

“A. On the particular morning, the 21st, about 8:15, in the morning that I got down to work a few minutes later Mrs. Connelly and her husband came to work.

“Q. You mean your brother Joe and Bonnie Connelly ?

“A. Yes, sir. I was doing my work in a room set off from the regular work room so I went back and was working with my work and it wasn’t long before I could hear voices, Bonnie and Mother’s, two voices, and as time went on they kept getting louder and louder and I knew some sort of raucus was going on so just as I stepped to the door to look in I saw Bonnie strike mother with her fist . . .

“Q. Did you ever see your mother, Mrs. Jeannette Connelly, strike Bonnie?

“A. No sir.”

Since the appellant, on direct examination, first brought up the affair that occurred at the Connelly Press in March 1957, certainly the State had a right to rebut such testimony; so we find no error.

III. Rulings In Regard To Instructions. The Court gave a total of seventeen instructions, some on the Court’s own motion, some at the request of the State, and some at the request of the defendant; and these instructions covered every possible phase of the case. Among others, the Court gave the State’s Instruction No. 3, which read as follows:

“If you find beyond a reasonable doubt from the evidence in this case that the defendant and deceased engaged in a quarrel or other difficulty and that the deceased, Joe Connelly, had abandoned such difficulty but that it was renewed by the defendant and that the defendant shot Joe Connelly after such renewal of the difficulty without sufficient provocation and 'such shooting caused the death of the deceased then it will be your duty to find the defendant guilty.” (Emphasis supplied.)

The appellant specifically objected to the instruction on the basis that it eliminated her claim of self defense and defense of home and property and her right to stand her ground without retreat. The instruction was a correct declaration of law. We have italicized certain language in the instruction to show that the theory of the State in this instruction was that the deceased had abandoned the controversy and that the defendant renewed it. Certainly, the State was entitled to an instruction on that phase of the case, in view of the testimony of several of the witnesses, as previously mentioned herein, to the effect that Mr. Connelly was never closer than ten feet to Mrs. Connelly and that he had, in fact, entered his car to drive away when she continued to fire at him.

Mrs. Connelly’s claim of self defense was covered in other instructions — the defendant’s requested instruction No. 14 and the Court’s instruction No. 12 — so there was no error in giving the State’s instruction No. 3.

The Court gave as one instruction the statutory language contained in §§ 41-2233 and 41-2234, Ark. Stats., as follows:

“You are instructed that every man’s house or place of residence shall be deemed and adjudged in law, his castle. A manifest attempt and endeavor, in a violent, riotous or tumultuous manner to enter the habitation of another, for the purpose of assaulting or offering personal violence to any person dwelling or being therein, shall be a justification of homicide.”

This instruction, together with the Court’s instruction No. 12 and the other instructions given, fully presented the defendant’s theory of defense. There was no error in the Court’s rulings regarding instructions.

We have examined all of the other assignments in the motion for new trial and find none to possess merit.

Affirmed.


author: George Eose Smith, J.

text:
    Central Casualty Co. v. State.
    5-2438
    349 S. W. 2d 135
    Opinion delivered September 18, 1961.
    [Rehearing denied October 16, 1961.]

      Claude B. Brinton and Bon McCourtney, for appellant.

      J. Frank Bolt, Attorney General, by Bussell Morton, Asst. Attorney General, for appellee.
   George Eose Smith, J.

Ted Paul Lavelle, charged with burglary and allied offenses, was admitted to bail upon giving bond in the sum of $15,000, with the appellant as his surety. Lavelle failed to appear for trial, and eventually a final judgment was entered against the appellant for the amount of the bond. In seeking a reversal of that judgment the appellant contends that the court acted prematurely, in that the cause should not have been heard until the next term of court after the original order of forfeiture.

Lavelle’s trial was at first set for November 14, 1960, which was the first day of the November term. See Ark. Stats. 1947, § 22-310. On that day the case was reset for the next Monday, November 21. When the accused failed to appear for trial on the latter date the court entered an order forfeiting the bond and directing the clerk to issue a summons against the surety. The summons was served upon the appellant on December 5, and on December 13 the clerk notified the appellant that the matter would be heard on December 29. On December 20 the appellant filed a motion to quash the proceedings and also an answer. In both pleadings it was contended that the matter ought not to be heard until the next term of court (which would begin April 17, 1961). At the hearing on December 29 the court overruled the appellant’s plea, and since no other defense was offered a final judgment was entered.

In contending that the proceedings are premature the appellant relies upon certain sections of the Criminal Code of 1869, which we quote as they appeared in the Arkansas Statutes of 1947:

“§ 43-723. If the defendant fail to appear for trial . . . the court may direct the fact to be entered on the minutes, and thereupon the bail-bond ... is forfeited.

“§ 43-724. If, before the final adjournment of the court, the defendant appears and satisfactorily excuses the failure, the court may discharge the forfeiture.

“§ 43-725. If the forfeiture is not discharged the prosecuting attorney for the circuit may, at any time after the adjournment of the court, proceed by action against the bail on their bond.

*****

“§ 43-727. No pleadings are required on the part of the State, but the clerk shall issue a summons against the bail, requiring them to appear on the first day of the next term of the court, to show cause why judgment should not be rendered against them for the sum specified in the bail-bond. . . .”

By Act 390 of 1953 the section last quoted was amended to provide that the summons should be answerable within 20 days instead of on the first day of the next term of court.

The appellant’s argument centers upon the language of §§ 43-724 and 43-725. The former section provides that the accused may appear and excuse his default “before the final adjournment of the court.” The latter section provides that if the forfeiture is not discharged the prosecuting attorney may proceed upon the bond “at any time after the adjournment of the court.” Beading the two sections together the appellant insists that the final adjournment of the court means the adjournment for the term, when the term lapses. It is accordingly argued that the prosecuting attorney cannot proceed against the bail until the term has lapsed. Upon that reasoning it is contended that the present proceedings were begun prematurely, because the fact that the court reconvened and heard this matter on December 29 proves that the term had not lapsed when the summons was issued against the appellant early in December.

The appellant’s argument might have been tenable when the Criminal Code was adopted in 1869, but we are of the opinion that later statutory enactments have modified the original meaning of the “adjournment” of the court.

In 1869 the business of the courts in Arkansas was comparatively light. The usual practice then was for the court to convene upon the first day of each regular term, dispose of its business within a few days, and adjourn finally until the next scheduled term. Indeed, this practice was recognized by an act of December 13, 1838, which directed that each circuit court “continue in session, at each and every term thereof, until the business therein pending is disposed of. . . .” Gould’s Digest (1858), Ck. 47, § 3.

It will be seen that under the early procedure the practical effect of § 43-724 was to permit the defendant to appear and excuse his delinquency at any time during the session of court at the beginning of the regular term. At the end of that session the court would adjourn finally, and thereupon the prosecuting attorney was at liberty to begin proceedings against the bail. Thus the institution of the action against the surety would ordinarily be proper within a few days after the original order of forfeiture.

Of course the former practice no longer obtains. With an increased volume of litigation it is now customary for the courts to hold adjourned sessions from time to time during each term of court. In fact, since the passage of Act 202 of 1943 all the terms of circuit court have been continuous, for that act provided: “When any circuit court is duly convened for a regular term the same shall remain open for all criminal, civil, or special proceedings until its next regular term, and may be in session at any time the judge thereof may deem necessary.” Ark. Stats., § 22-311.

Under the statute just quoted there is no longer any such thing as a final adjournment in the old sense, for the court remains open until the last instant of each regular term. In this situation the legislative intention of the Criminal Code can best be given effect by taking the “adjournment” to refer to an adjournment of the session rather than of the term. This is an accepted meaning of the word adjournment. Parrott v. Wolcott, 75 Neb. 530, 106 N. W. 607. When the statute is so construed the defendant and his bail have substantially the same rights as they had originally under the Criminal Code. That is, the defendant may appear and excuse his delinquency during the current session of court, and if he fails to do so the prosecuting attorney may then proceed upon the bond. The bondsman, just as in the past, has a reasonable time in which to produce the defendant. This is so because the summons need not be answered for 20 days, and the statute provides that at any time before judgment is entered against the bail the court may remit the whole or any part of the forfeiture. Ark. Stats., % 43-729.

We conclude that the proceedings were not premature, since they were instituted after the adjournment of the session of court at which the order of forfeiture was entered. We find no merit in the appellant’s suggestion that the bail bond was not before the court when the matter was heard on December 29, for the judgment recites that the cause was heard upon the pleadings, the bail bond, and other matters.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Thomas v. Raney.
    5-2415
    349 S. W. 2d 129
    Opinion delivered September 18, 1961.

      O. Wendell Hall, Jr., for appellant.

      Ben M. McCray, for appellee.
   Paul Ward, Associate Justice.

Appellee, Victor Raney, recovered a jury verdict (and judgment) against appellant Louis Thomas, in the amount of $2,019.10. This amount was double the value (pursuant to Ark. Stats., § 41-510) of farm implements, trees, and a barn which were destroyed by a fire originating on appellant’s adjoining farm. Appellant seeks a reversal on the grounds that there is no substantial evidence to support the verdict and because of certain alleged errors in the court’s instructions.

Appellant and appellee lived on adjoining farms, appellant being on the west side. On Monday April 4, 1960, appellant and his employees set out a fire on appellant’s land. It was appellee’s contention that the said fire spread to his land and burned his property, heretofore mentioned, late in the afternoon on the following Wednesday.

Substantial Evidence. A careful reading of all the testimony convinces us that there is substantial evidence to sustain the jury in finding that the appellant set out the fire, that this fire spread to appellee’s farm and that it destroyed appellee’s property. Appellant admits setting out a fire on his land. Appellee and others testified that they traced the path of the fire from the barn to the fire on appellant’s land. They testified that there was a wind blowing from west to east. Appellant and other witnesses described a large fire burning on Dick Leach’s land located near (and, apparently, south of) appellant’s land, which could have reached appellee’s land. To offset this, there was testimony that the Leach fire never got closer than a quarter of a mile to appellee’s property.

However, before the jury could find for appellee it must also have found (see Ark. Stats., § 41-507) that appellant did not take “necessary precaution” to prevent the escape of the fire to appellee’s land. Here again we find from the record substantial evidence to support such a finding. It would serve no useful purpose to set out the testimony on this point, but it is necessary to state that such testimony would have supported a jury in finding that appellant did or did not use the “necessary precaution”, if the jury was properly instructed on that point.

Instructions. The trial court gave appellee’s requested Instruction No. 3, which reads as follows:

“You are instructed that the escape of fire to adjoining timber, brush, or grasslands shall be prima facie evidence that necessary precautions to prevent its escape were not taken. Therefore, if you find from a preponderance of the evidence in this case that fire did escape from lands owned by or under the control of the defendant Louis Thomas and spread to and upon lands of the plaintiff Victor Raney, this within itself is prima facie evidence that the precautions required by law to prevent the spread of the fire were not taken by the defendant Louis Thomas, his agents, servants or employees, and the burden of proof then shifts to the defendant to prove by a preponderance of the evidence that the necessary precautions were taken.” (Emphasis added.)

To the giving of the above instruction appellant objected as follows:

“Defendant objects generally and specifically to the Court’s giving Plaintiff’s Instruction No. 3 in that it instructs the jury that the escape of fire constitutes prima facie evidence that necessary precautions were not taken and takes away from the jury their right to determine as to whether or not negligence on the part of the defendant existed, and it instructs the jury to return a verdict in favor of the plaintiff if such facts exist.”

After careful consideration we have reached the conclusion that said Instruction No. 3 is incorrect in that it places a greater burden on appellant than the law requires, and therefore calls for a reversal.

The real issue in the case, in so far as appellant’s liability is concerned, is whether he was negligent in allowing the fire escape to appellee’s land, providing of course, it is first shown that he set the fire which burned appellee’s property. This issue was properly presented in appellee’s Instruction No. 2 which was given to the jury. In that instruction, on the point in question, the trial court said: “. . . if you [the jury] find from a preponderance of the evidence . . . that Louis Thomas . . . did burn any brush, grass . . . [etc.] . . . without taking necessary precaution . . . [etc.] . . . then your verdict should be for the plaintiff. . . .” Thus Instruction No. 2 left the burden on plaintiff to prove by a preponderance of the evidence all vital issues in the case, including negligence on the part of appellant — i.e. failure to use necessary precaution. In contrast with the above, Instruction No. 3 places the burden on appellant “to prove by a preponderance of the evidence that the necessary precautions were taken”.

Appellee, however, in defense of said Instruction No. 3 relies on Ark. Stats., § 41-507 which, among other things, says: “The escape of such fire to adjoining timber, brush, or grass lands shall be prima facie evidence that necessary precautions were not taken.” Appellee’s contention is that this statute shifts the burden to appellant to prove (by a preponderance of the evidence) that he did take the necessary precautions. We cannot agree with this contention. In the first place, the cited statute (as shown by § 41-510) is a penal statute, and in Lamb v. Hibbard, 228 Ark. 270, 306 S. W. 2d 859, we said that since it was penal it is to be strictly construed. In the cited case we also said, in speaking of Act 85 of 1935 (of which §§ 41-507 and 41-510 are a part) that: “Taking the statute as a whole we find no reason to think the legislature meant to create a new basis for liability . . . without fault. . . .” By this we in effect said that the plaintiff, in this kind of case, must prove negligence (or fault) on the part of the defendant just as he must do in ordinary damage suits based on negligence.

Moreover, the real vice in Instruction No. 3 is that it allows the jury to use the legal presumption (created by § 41-507) in connection with the testimony in deciding whether appellant was negligent and therefore liable for damages. In what we think is an analogous situation this court has very definitely held that a statutory presumption of negligence cannot be used to supplement the evidence where negligence (as here) is a controversial issue under all the testimony — that is, where the testimony on negligence presents a jury qustion, the statutory presumption of negligence passes entirely out of the picture. "We refer to the statutory presumption of negligence against a railway company which arises when it is shown that a train has killed or injured a person or damaged property. This rule as applied to railway companies is so definitely established by our decisions that it will suffice to refer briefly to a few of them.

In Mo. Pac. R. R. Co. v. Vaughan, Admr., 225 Ark. 848, 286 S. W. 2d 6, the trial court, in instructing the jury, referred to the statutory presumption of negligence against appellant and then added: “unless the defendant has overcome that presumption by a preponderance of the evidence in this case.” Because of the error in the above instruction we reversed the cause, citing cases including Western & Atlantic R. v. Henderson, 279 U. S. 639, 49 Sup. Ct. 445, 73 L. Ed. 884. The Henderson case is a landmark decision often referred to in our decisions and consistently followed. In the cited case, at page 641, the U. S. Supreme Court, in condemning an instruction which placed on appellant the burden of proving it was not negligent, stated: “And, by authorizing the jury, in the absence of evidence, to find negligence in the operation of the engine and train, the court necessarily permitted the presumption to be considered and weighed as evidence against the testimony of defendant’s witnesses tending affirmatively to prove such operation was not negligent in any respect.” The court there also said: “The only legal effect of this inference is to cast upon the railroad company the duty of producing some evidence to the contrary. When that is done, the inference is at an end, and the question of negligence is one for the jury upon all of the evidence.” (Emphasis added.)

The decision in Mo. Pac. R. R. Co. v. Beard, Adm’r., 198 Ark. 346, 128 S. W. 2d 697, fully supports the Henderson case. There the court approved the following: “ ‘Therefore, in determining whether the evidence in this case is legally sufficient to support the verdict, we cannot consider the presumption created by statute, but we must determine the question from the evidence introduced.’ ” The same issue was before this court in Kansas City So. Ry. v. Shane, Adm’x., 225 Ark. 80, 279 S. W. 2d 284, with the same results mentioned in the other citations.

Since the judgment must be reversed for the reasons above indicated, we deem it unnecessary to discuss other assignments argued by appellant, in none of which do we find reversible error.

Reversed.


author: Sam- Robinson, Associate Justice.

text:
    Ark. State Highway Comm. v. Bryant.
    5-2356
    349 S. W. 2d 349
    Opinion delivered September 18, 1961.
    [Rehearing denied October 16, 1961.]

      Dowell Anders, Thomas B. Keys <& PL. Clay Robinson, for appellant.

      Kaneaster Hodges, for appellee.
   Sam- Robinson, Associate Justice.

The Arkansas Highway Commission condemned for highway purposes about one-half acre out of a 23-acre tract belonging to appellee. On the one-half acre there was partially located a combination store building and residence. There was a verdict in the sum of $14,000 in favor of the landowner for damages sustained, and the Highway Department has appealed.

Appellant complains of the action of the trial court in admitting as evidence the cost of relocating and reconstructing the above mentioned building and in not striking from the record the testimony of several witnesses, contending that such witnesses did not arrive at an estimate of damages by making a determination of the value before and after the taking. Each witness called by appellee testified as to the value of the property before the taking and the value after the taking. This is the correct measure of damages. Arkansas State Highway Comm. v. Fox, 230 Ark. 287, 322 S. W. 2d 81 and cases cited therein.

The damages estimated by appellee’s witnesses ranged from $16,100 to $20,000. Two witnesses testified for appellant, one giving his estimate of damages at $8,750 and the other at $8,500. True, witnesses for the landowner, both on direct and cross examination, went into considerable detail as to how they arrived at the before and after values. An explanation of that kind is entirely proper. "We said, in Arkansas State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738: ‘ ‘Where a witness gives his opinion as to damages, such testimony must be considered in connection with related facts upon which the opinion is based.”

Appellant argues that a new trial should have been granted by the trial court because one O. E. Guinn served as a juror in the case. He had been subpoenaed as a witness and he was an associate of Mr. W. R. Pratt, an expert who testified in favor of appellee. The subpoenaing of Mr. Guinn must have been an error, because at the hearing on a motion for new trial, he testified that he had not appraised appellee’s property. He further testified that he was associated with Mr. Pratt, witness for appellees. “The relationship of a juror to a witness in the trial does not per se disqualify the juror.” Jones v. State, 230 Ark. 18, 320 S. W. 2d 645. Ark. Stats. § 39-103 provides that no person subpoenaed as a witness shall be sworn in the same cause as a juror. But the statutes further provide that an objection to such person serving as a juror must be made before he is sworn as a juryman. Ark. Stats. § 39-115.

There is substantial evidence to sustain the verdict, and we find no error.

Affirmed.

Bohlinger, J., not participating.


text:
    Ark. State Highway Comm. v. Kennedy.
    5-2358
    349 S. W. 2d 133
    Opinion delivered September 18, 1961.

      Dowell Anders <& Thomas B. Keys, for appellant.

      Pickens, Pickens & Boyce, for appellee.
   Jim Johnson, Associate Justice.

This is an action in eminent domain brought by appellant, Arkansas State Highway Commission against appellees, G. B. Kennedy, et al, for the acquisition of an easement for highway purposes across .427 acres of land owned by appellees. This land was part of a larger tract of 4.5 acres.

Appellant filed a Complaint and Declaration of Taking and deposited $3,950, an estimated just compensation for the property in question. Trial was held in Jackson Circuit Court on April 21, 1960. Nine witnesses testified as to the damages suffered by appellees. The jury returned a verdict in favor of appellees in the amount of $11,154.20.

On May 5, 1960, appellant-plaintiff filed a Motion for New Trial based on the grounds that one of the jurors (O. E. Guinn, Jr.) had been subpoenaed to serve in a prior matter and had failed to disclose this on voire dire and that O. E. Guinn, Jr. was further disqualified to serve on the jury because he was an employee of W. B. Pratt, one of the witnesses as to value, and that there was no substantial evidence to support the verdict of the jury. The trial court overruled appellant’s motion for a new trial and this appeal followed.

First, appellant seeks reversal because O. E. Guinn, Jr., a petit juror, was disqualified to serve on the jury.

Appellant bases this argument on the fact that Guinn was subpoenaed in another case in the same term of court and further that Guinn was an employee of the Northeast Arkansas Investment Company whose principal stockholder was W. B. Pratt, a real estate agent of Jackson County, who testified as to the value of appellees’ property as taken by the Highway Commission.

The record reflects that Guinn testified “that he had no interest in this lawsuit; that he never had any discussion with any of the witnesses as to the facts and appraisal figures; nor was he subpoenaed in this case.”

The record further reflects that appellant’s counsel knew, or should have known, who the jurors were since he had the same opportunity of examination of the jury list or examination on voir dire and he had the same opportunities of examining the list of witnesses subpoenaed for trial in tbe Circuit Court since be, like other counsel, was furnished with such a list by the clerk of the court. Juror Guinn’s testimony indicates he was a competent, unprejudiced and fair juror.

Under our statutes, as well as the practice in this State, it is too late after the rendition of a verdict, to raise the ineligibility of a juror to serve, unless it can be shown by the complaining party that diligence was used to ascertain his disqualification and to prevent his selection as a juror. See: Missouri Pacific Railroad v. Bushey, 180 Ark. 19, 20 S. W. 2d 614.

Appellant relies on Ark. Stats., § 39-103, which is as follows:

“Witness in cause — Person expressing opinion— Disqualification. — No witness, or person summoned as a witness in any civil cause, and no person who has formed and expressed an opinion concerning the matter in controversy in any such suit, which may influence the judgment of such person, shall be sworn in the same cause as a juror.”

However, Ark. Stats., § 39-115, reads as follows:

“Verdict unaffected by juror’s lack of disqualification. No verdict shall be void or voidable because any of the jurymen fail to possess any of the qualifications required in this chapter; nor shall exceptions be taken to any juryman for that cause after he is taken before the jury and sworn as a juryman.”

This latter statute applies to both criminal and civil cases. See: Missouri Pacific Railroad v. Bushey, supra, and Fones Bros. Hardware Co. v. Mears, 182 Ark. 533, 32 S. W. 2d 313. Section 39-103, Ark. Stats., has no application in this particular case for the reason that the juror himself, when examined by the court, showed clearly that he had not formed or expressed an opinion, nor would he have any.

In Patton v. State, 189 Ark. 133, 70 S. W. 2d 1034, this Court said:

“But if the defendant in a criminal case, or either party to a civil case, wish to raise the question of a juror’s eligibility, he must ask the specific question upon the voir dire examination, and, if he does not do so, the right to raise the question is waived, and cannot be raised after the jury has been sworn or a verdict has been returned.”

See also: Daniel v. Guy, 23 Ark. 50; Brown v. St. Louis, Iron Mountain & Southern Railway Co., 52 Ark. 120, 12 S. W. 203; Cureton v. State, 117 Ark. 655, 174 S. W. 810.

Second, appellant complains in points 2 and 3 that the court erred in admitting the testimony of witness Bert Gibson as to the value of the property taken and/or damages as a result of the taking and contends that there is no substantial evidence to uphold the verdict.

Let us first view the following cardinal principles:

“In testing the sufficiency of the evidence to support the verdict we must view it in the light most favorable to appellee.” Malvern and Ouachita River Railroad Co. v. Smith, 181 Ark. 626, 26 S. W. 2d 1107; City of Harrison v. Moss, 213 Ark. 721, 212 S. W. 2d 334.

“When a verdict is sustained by competent evidence, we do not interfere.” Railway v. Combs, 51 Ark. 324, 11 S. W. 418.

“Where there is any evidence of a substantial nature, which, by positive statement or reasonable inference, when given its strongest probative value, tends to support the finding of the jury, the verdict then will be sustained, although from the record presented to this court, it might seem to be ¿gainst the preponderance of the credible evidence.” Missouri Pacific Railroad Company v. Henderson, 194 Ark. 884, 110 S. W. 2d 516.

“Jurors are accorded great latitude in considering testimony relative to damage.” Ark. State Highway Commission v. Carder, 228 Ark. 8, 305 S. W. 2d 330; Arkansas State Highway Commission v. Muswick Beverage & Cigar Co., 231 Ark. 265, 329 S. W. 2d 173.

To completely abstract here all of the testimony relating to the points under consideration would unduly extend this opinion but let us look briefly at the evidence presented to determine whether or not there was substantial evidence to support the verdict.

There is no dispute about the fact that this strip taken by the Highway Department took off approximately 50 per cent of appellees ’ place of business. There is no dispute that the taking took sufficient amount of appellees’ garden so that it was impossible to cultivate it. There is no dispute that the taking completely ruined the front yard of appellees’ home.

The damages estimated by appellees’ witnesses ranged from $13,212 to $16,000. Two witnesses who were employed by the Highway Department testified for appellant, one giving his estimate of damages at $3,950, and the other at $3,850. The landowners themselves detailed their property before the taking, including the improvements that were on the property, and based the amount of their damages on their knowledge of the fair market value of similar property in the community.

J. N. Anderson, a lay witness for appellees, stated he had lived in the community 33 years and had been in timber and farming business and had general knowledge of the value of property in that area.

E. M. Fisher, another lay witness for appellees, stated he had lived in the community 25 years, runs a grocery and service station 1/2 mile from the Kennedy property, and testified as to his familiarity with the fair market value of similar properties.

Bert Gibson, another lay witness for appellees and whose testimony appellant contends should have been stricken from the record, according to our view competently testified that he had recently purchased property in the area and knew the value of such property from having made inquiry for his own benefit. See: Ft. Smith & Van Buren Dist. v. Scott, 103 Ark. 405; 147 S. W. 440; Housing Authority of Little Rock, Ark. v. Winston, 226 Ark. 1037, 295 S. W. 2d 621.

Joseph. Stafford, witness for appellees, stated he had been in the real estate and insurance business for ten years.

Dewey Buffington, witness for appellees, stated he had been in the real estate business five years.

W. B». Pratt, witness for appellees, lives in Newport, has been in the real estate business five years and based his figure on the location of the property and the improvements.

All of the witnesses properly testified as to the value of the property before the taking and the value after the taking. See: Ark. State Highway Comm. v. Fox, 230 Ark. 287, 322 S. W. 2d 81.

We said in Arkansas State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738: “"Where a witness gives his opinion as to damages, such testimony must be considered in connection with related facts upon which the opinion is based.” And in St. Louis, Arkansas and Texas Railroad v. Anderson, 39 Ark. 167, we further said:

“The question whether a witness has sufficient knowledge concerning the value of property to give him a definite opinion on the subject is a matter, to some extent, within the sound discretion of the trial judge, and this Court will not reverse for an alleged error in this respect unless an abuse of such discretion appears.”

Following the principles set out above we find no abuse of discretion, and that there is substantial evidence to support the verdict.

Affirmed.

Bohlinger, J., not participating.


author: Neill Bohlingek, Associate Justice.

text:
    Dukes v. Dukes.
    5-2368
    349 S. W. 2d 339
    Opinion delivered September 18, 1961.
    [Rehearing denied October 16, 1961.]

      Kaneaster Hodges, for appellant.

      Pickens, Pickens $ Boyce, for appellee.
   Neill Bohlingek, Associate Justice.

Charles Allison Dukes, Jr. was killed in an automobile accident on December 28, 1954 and died intestate leaving as his sole heir a son, Charles Edward Dukes, who appears by his paternal grandmother, Ida Ethel Dukes, guardian, as appellant herein, and a wife, Victoria Dukes, who appears as the administratrix and appellee. The administratrix, as such, filed a suit in the Jackson Circuit Court against the party who is alleged to have caused the wrongful death of her husband.

After the filing of the suit, a settlement was effected whereby the administratrix was paid the sum of $4,250.00, which settlement was approved by the circuit court and the Jackson Probate Court. After the payment of her attorney’s fee, the administratrix had in her hands the sum of $3,187.50 as the recovery for the wrongful death of her husband.

The circuit court, which approved the settlement, made no finding as to a recovery for pain or mental anguish and the record reflects that Charles Allison Dukes, Jr. died at the time of the accident without regaining consciousness. The administratrix received the net amount of this settlement and treated the same as a general asset in her hands as administratrix and thereafter approved, and under the order of the Jackson Probate Court paid debts in the amount of $2,925.31 from the settlement of the death claim.

The appellant filed her exceptions to this action by the administratrix, which exceptions were overruled and the appellant has prosecuted an appeal from that adverse ruling and the cause is presented here on the following statement of points:

“The court erred in holding that the amount recovered in the death claim should be applied to the payment of the debts of the estate, that the exceptor had notice through counsel of steps taken by the administratrix, and that the exceptor was not entitled to recover two-thirds of the amounts received by the administratrix in the settlement of the death claim by Jackson Circuit Court Case No. 1755.”

In appellant’s statement of points the claim is made that the court erred in holding that the exceptor had notice through counsel of steps taken by the administratrix. The probate court did find that the “exceptor had notice through counsel of steps taken by the administratrix” and it appears from the record that the matter of the settlement of the death claim was discussed informally between counsel. We do not think the matter of notice was important. In Reed, et al v. Blevins, et al, 222 Ark. 202, 258 S. W. 2d 564, this court said:

“Under the foregoing Statute [Act 53 of 1883 which is similar to the one in question here] we have always held that when a personal representative was appointed, such personal representative was the only person who could maintain a suit for damages for wrongful death # * *” and in Southwestern Gas & Electric Company v. Godfrey, 178 Ark. 103, 10 S. W. 2d 894, it was said that joining of party plaintiffs other than the personal representatives was error, though not prejudicial.

The question then is narrowed down as to whether or not the court erred in holding that the amount recovered in the death claim should be applied to the payment of debts of the estate and that the guardian, appellant, was not entitled to recover two-thirds of the amount received by the administratrix in the settlement of the wrongful death action in the circuit court.'

It is conceded by both parties that the applicable statute is Act 115 of Acts 1949. This Act is a verbatim reenactment of the pertinent parts of Act 53 of 1883 with the addition of the language:

“However, when mental anguish is claimed as a measure of damages under this statute, such mental anguish will be applicable only to the wife, parent, child, brother, sister or persons standing in loco parentis to the deceased at the time of the injury which caused the death of the deceased.”

Since it appears that mental anguish is not an issue in this recovery, we take the line of decisions under Act 53 of 1883 as controlling here.

There can be no doubt that the Act creates a trust fund and that the son of the deceased and his widow are the beneficiaries of that fund and that it is, as the statute states, for their exclusive benefit. While it is true, as the appellee states in an excellent brief, that the case of Davis v. St. Louis, I M & S R Co., 53 Ark. 117, 13 S. W. 801, was decided long before the passage of Act 115 of 1949, the decision in the Davis case was interpreting the statute of 1883 which, for the purposes of this case, is identical with the 1949 Act and the cases of Law v. Wynn, 190 Ark. 1010, 83 S. W. 2d 61, and Moseley v. Beard, 203 Ark. 731, 158 S. W. 2d 917, follow the line of the Davis case supra. And as Justice Hart said in the case of Adams v. Shell, 182 Ark. 959, at p. 961, 33 S. W. 2d 1107:

“The damages are recovered in the name of the personal representative of the deceased, but do not become assets of the estate. * * * The administrator is a formal party to the maintenance of the action, and becomes a mere trustee for those entitled under the statute to the amount recovered.”

It therefore becomes evident that the administratrix has but one relationship to the recovery for a wrongful death and that is as a trustee of conduit and beyond that status, in these circumstances, she may not go.

It therefore follows that the probate court was in error in holding that the recovery was a general asset in the hands of the administratrix and this cause is therefore reversed. It appears from the record that there were other assets in the hands of the administratrix and that the sum of $1,475.96 had been deposited in the registry of the probate court for the use of the minor, Charles Edward Dukes.

The probate court is directed to have the administratrix restate her account in conformity with this opinion. It is so ordered.


author: Carretón Harris, Chief Justice.

text:
    Wymer v. Dedman.
    5-2411
    350 S. W. 2d 169
    Opinion delivered September 25, 1961.
    [Rehearing denied November 6, 1961.]

      G. M. Erwin and Marvin D. Thaxton, for appellant.

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

On February 18, 1958, appellee, Ray Dedman, operating an automobile belonging to his wife, Myrtle Dedman, collided with the rear of an unlighted trailer, loaded with cotton seed hulls, which was being pulled by a tractor driven by Ernest Brooks. Brooks was a farm laborer employed by Joe Wymer. The Dedmans instituted suit against Wymer, appellee Myrtle Dedman seeking judgment for damage to her automobile in the amount of $825.37, and appellee Ray Dedman, seeking damages for injuries sustained in the amount of $5,000. Subsequently, the complaint was amended to include Kaneaster Hodges as a defendant, appellees alleging that Wymer and Hodges were partners in the raising and marketing of cattle; that Brooks was an employee of the partnership, and that at the time of the collision, Brooks was performing his duties and acting on the instructions of appellants herein in that he was specifically hauling cattle feed from the Southern Cotton Oil Mill for appellants. Separate answers were filed by Wymer and Hodges, alleging, inter alia, that Ray Dedman was operating the automobile in a negligent and careless manner; that he was operating the car as an agent for his wife, Myrtle Dedman, and in pursuance of a mission for both himself and wife; that the two were engaged in a joint venture at the time of the collision. As a third party complaint against Dedman, appellants individually prayed that if they “he held liable in any amount to the plaintiff Myrtle Dedman for the reason that the negligence of the plaintiff Ray Dedman is not imputable to her,” then they asked “to recover over the full amount of such judgment against the plaintiff Ray Dedman” because of his negligence in excess of that of the appellants. At the conclusion of the evidence, the court submitted the case to the jury on five special interrogatories. In response to Interrogatory No. 1, the jury found that Joe Wymer and Kaneaster Hodges were engaged in a partnership cattle business. In response to Interrogatory No. 2, relating to the percentage of total negligence which was the proximate cause of the collision, the jury found that the partnership of Wymer and Hodges should be charged with 55%, and Ray Dedman, 45%. Myrtle Dedman’s damage (to automobile) was fixed at $825, and Ray Dedman was awarded $662 for personal injuries. In accordance therewith, judgment was entered against appellants in favor of Mrs. Dedman in the amount of $825, and judgment entered for Ray Dedman in the amount of $364.10, the amount of his damages, reduced by the percentage of his negligence. From such judgment, Wymer and Hodges bring this appeal. For reversal, appellants rely upon four points, which we list in the order for discussion, rather than in the order listed by appellants.

I.

The written agreement of Wymer and Hodges constituted a relation of landlord and tenant.

II.

The court should have submitted to the jury an issue as to joint enterprise of Ray Dedman and Myrtle Dedman.

III.

The court mistakenly stated in the premise to Interrogatory No. 4 that the jury should not measure Myrtle Dedman’s damages if both parties were found 50 per cent negligent.

IY.

The judgment should have been entered, if at all, against Joe Wymer, Kaneaster Hodges and Ray Dedman.

I.

We cannot agree that, as a matter of law, the written agreement between Wymer and Hodges created the status only of landlord and tenant, though it terms appellant Hodges as lessor and appellant Wymer as lessee. That contention may be correct as far as the farm acreage and crops are concerned, but we are here only interested in that portion of the agreement relating to the raising of cattle. Such portion reads as follows:

“The parties agree that they will undertake to develop pasture lands upon the farm in rotation with the rice crops and soybean crops and that they will purchase a suitable herd of cattle to be kept and maintained upon the pastures and the farm. It is agreed- that each party will purchase and pay for one-half of the cattle and that each party will own an undivided one-half of the cattle and an undivided one-half of all the increase therefrom. The lessor shall build suitable fences. The lessee shall purchase pasture seeds, prepare the ground and sow it. The lessee shall undertake to grow on the farm, put up, cure or save all of the supplemental feed needed in addition to the pastures. The lessee shall tend, water, feed and otherwise care for said cattle, which shall include routine repair and maintenance of the fences. It is the understanding of the parties that the lessor shall purchase one-half the cattle, furnish the land and build the fences and that the lessee shall do and furnish everything needed in addition thereto for the herd of cattle. In the event that, at any time, the lessee, through causes beyond his control, cannot raise or keep sufficient feed for the cattle then the parties shall agree upon the purchase of the necessary supplemental feed and each party shall pay one-half the cost thereof, which shall apply to the initial purchases of feedstuff prior to the 1956 growing and harvest season.”

It is asserted that in the cattle enterprise, the two men had wholly different expenses and duties, and that no right of control was reserved to Hodges. Mr. Hodges testified that Mr. Brooks did not work for him, and that he did not send Brooks after cattle feed. He stated that he and Wymer owned the entire herd, hut that there was no agreement on profits or losses.

“The first cattle were bought some two years before this and Mr. Yasso had a half interest in the herd of cattle. I bought out Mr. Vasso, and I sold Mr. Wymer a half interest in the herd of cattle at the time of the lease agreement. As I remember, the First National Bank had a mortgage, and over and above that, Mr. Wymer gave me a note. I took a title retaining note for half of the cattle owed to him. Now, that gets us started. If any were sold, the money was applied at the bank, and no money was applied on the side note owed to me, and I held that until May or June, 1958; the herd of cattle had grown to the point where we were able to borrow enough at the bank and Mr. Wymer paid me off the side note. We sold the cattle in February, 1959. When we sold, we paid the bank and we each took half of the balance. What part of that was profit and what part capital, I am not able to say.”

According to Hodges, at one time, three cows died, and the two men shared the loss equally.

Wymer testified that he sent Brooks into town for feed for the cattle; that he had a one-half interest in same; that when it was necessary to buy additional feed for the cattle, the cost was split “50-50” at the end of a year; when the proceeds from sales exceeded the debt, such proceeds were divided ‘ 50-50. ’ ’

Under our statute, cited as Uniform Partnership Act, a partnership is defined as “an association of two [2] or more persons to carry on as co-owners a business for profit.” Blacks Law Dictionary, Fourth Edition, 1957, defines a partnership as “a voluntary contract between two or more competent persons to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business, with the understanding that there shall be a proportional sharing of the profits and losses between them.”

There are, of course, many types of partnership agreement, containing multiple provisions, and so diverse as to make difficult any attempt at a definition that will cover all cases. However, the definitions heretofore cited are somewhat standard, and rather concisely cover the relationship as it is generally understood. In the litigation before us, there was evidence that the cattle were jointly owned by appellants; that proceeds from the sale of the cattle, and profits, if any, were shared equally; that losses were shared equally, and that costs of maintaining the herd (when it became necessary to purchase supplemental feed) were likewise equally borne. This evidence was pertinent to the issue of whether appellants had associated themselves together in the business of raising cattle for profit. The fact that their obligations, or duties, under the agreement were not identical, is of no moment. See 68 C. J. S., Partnerships, Section 9, p. 413. Likewise, the fact that appellant Hodges did not send Brooks after the cattle feed, does not, in itself, constitute a defense, for, if the parties were partners, the one is liable for the acts of the other, if committed in the course of business. In addition, irrespective of the actual relationship between the two, there is the matter of legal liability where the rights of third parties are concerned. In Turnage v. Ritchie Grocer Company, 204 Ark. 935, 165 S. W. 2d 604, this Court, quoting from an earlier case, said:

“To determine whether a given agreement amounts to a partnership between themselves,” said Chief Justice Hill, “is always a question of intention. But a different test prevails where the rights of third parties are concerned. It was formerly held that participation in profits was conclusive evidence in actions by creditors. This rule has been modified so that'a participation in profits is not conclusive, but ‘it is a cogent test for trying the question,’ and ‘is conclusive unless there are some circumstances alteiing the nature of the contract ’. ’ ’

We hold there was substantial evidence to support the jury’s finding that Wymer and Hodges were partners in the enterprise of raising cattle for profit.

II.

Three requested instructions, submitting the issue of whether appellees were engaged in a joint venture, were refused by the court. We cannot agree with appellants that this issue should properly have been submitted to the jury. The proof reflected that the automobile, involved in the wreck, was owned by Mrs. Dedman, but at the time of the collision, was being operated by Mr. Dedman, who used the car to travel to and from work. On that occasion, Dedman was also transporting to work a man named Porter, and had been transporting the latter since August, 1955. For this service, Porter paid Mrs. Dedman the sum of $5 per week. In 4 Blashfield Chapter 65, § 2373, p. 493-95, we find:

“An essential, and perhaps the central, element which must be shown in order to establish a joint enterprise is the existence of joint control over the management and operation of the vehicle and the course and conduct of the trip. There must, as said in another connection, in order that two persons riding in an automobile, one of them driving, may be deemed engaged in a joint enterprise for the purpose of imputing the negligence of the driver to the other, exist concurrently two fundamental and primary requisites, to-wit, a community of interest in the object and purpose of the undertaking in which the automobile is being driven and an equal right to direct and govern the movements and conduct of each other in respect thereto.”

Further, on pages 500 and 501:

“It is commonly a question of fact, for the jury to say, whether a joint enterprise existed between the driver and another occupant of an automobile, except where the evidence as to the existence of such a relation is insufficient to go to the jury.

“The doctrine of joint adventure, in connection with the operation of motor vehicles, should be restricted to those cases where the common right to control its operation and the correlative common responsibility for negligence in its operation either are clearly apparent from the agreement of the parties or result as a logical and necessary conclusion from the facts as found.”

Whether an instruction, placing in issue the question of whether Dedman was acting as agent for his wife, would have been proper, is not before us, for no such instruction was requested. Appellants call attention to the case of Callaway v. Cherry, 229 Ark. 297, 314 S. W. 2d 505, wherein we said:

“In seeking to uphold the judgment counsel for Mrs. Cherry rely upon the language in many of our decisions, including the Lockhart case, to the effect that in a joint enterprise the participants must have an equal right to direct and govern the movements and conduct of each other. It is therefore contended that a joint enterprise could not have existed between Mrs. Cherry and her son, since Neil had no power to control his mother’s conduct. Even so, we regard the distinction as one of nomenclature rather than of substance. It might well have been more accurate for the plaintiff to assert an agency relationship rather than a joint venture; but the vital issue presented by the proof was whether Neil’s negligence might be imputed to his mother, and we are not persuaded that the imperfect terminology misled the trial court or opposing counsel.”

That case is of no aid to appellants, for Mrs. Cherry toas ricling in the car at the time of the collision. Accordingly, the distinction here is one of substance, rather than nomenclature.

III.

The Court told the jury:

“If, in your answer to Interrogatory No. 2 or No. 3, you have found both parties are 50 per cent negligent, or you have inserted a zero for both parties, thereby finding neither party guilty of negligence, then that ends this lawsuit and you need not answer any further interrogatories; if your findings are otherwise, then answer the following: * * V’

Appellants contend this was error, in that a finding that each party was guilty of 50% negligence would not have ended the lawsuit; both appellants and Ray Dedman would have still been equally responsible to Myrtle Dedman for the damage to her automobile. Appellants state that, in effect, the court told the jury that Mrs. Dedman could not recover unless the jury tipped the scale of fault in favor of her husband, and against appellants. It is pointed out that the jury did this by the bare margin of 55% to 45%. Under our holdings, we cannot consider this contention, for no objection was made by appellants to the form of the interrogatory, nor was any instruction requested covering this point.

IY.

Appellants, as heretofore noted,- included third party complaints against Ray Dedman, praying that if Myrtle Dedman obtained judgment against them, they recover over the amount of such judgment against the husband. The Uniform Contribution Among Tortfeasors Act, Sections 34-1001 through 34-1009, Ark. Stats. (1947) Anno., defines joint tortfeasors as:

“* * * two or more persons jointly .or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.” 52 American Jurisprudence, Section 112, p. 451, under the chapter heading, ‘ ‘ Torts, ’ ’ states:

“There is much authority in favor of the principle that joint, or more precisely, joint and several, liability may exist notwithstanding the absence of concerted action on the part of wrongdoers. Thus, where the independent tortious acts of two or more persons supplement one another and concur in contributing to and producing a single indivisible injury, such persons have in legal contemplation been regarded as joint tort-feasors, notwithstanding the absence of concerted action.”

See also Applegate v. Riggall, 229 Ark. 733, 318 S. W. 2d 596. We agree that, relative to the damage done Myrtle Dedman’s car, appellants and Ray Dedman were joint tortfeasors. However, Section 34-1002 provides:

“A joint tortfeasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof.”

We are of the opinion that appellants, upon discharging the judgment obtained against them by Myrtle Dedman, will be entitled to file their motion for judgment for contribution from Ray Dedman. The situation before us is a bit unusual, in that actions wherein relief is sought against an alleged joint tortfeasor usually involve bringing in a third person who is not already a party to the proceedings. Of course, in the present instance, the “third party” defendant was one of the persons who instituted the complaint, and Hodges is in the position of being liable to both appellees, while no liability was incurred by appellee Dedman to his wife because she did not sue him. However, we think, in the spirit of the Act, that Hodges is entitled to contribution without further litigation. Uniform Laws Annotated, Yol. 9, which contains the Uniform Contribution Among Tortfeasors Act, and discussion thereto, gives an interesting example relative to Section 7 (§ 34-1007 Ark. Stats.), under the heading “Third Party Practice, Amended Complaints, Counterclaims and Cross-Corn-plaints, and Motion Practice.” Subsection (b) of subsection 3, § 34-1007, provides that “a pleader may either move for judgment for contribution against any other joint judgment debtor where in a single action a judgment has been entered against joint tortfeasors one of whom has discharged the judgment by payment or has paid more than his pro rata share thereof. If relief can be obtained as provided in this subsection no independent action shall be maintained to enforce the claim for contribution,” It is true that Mrs. Dedman obtained no judgment against her husband, but as pointed out— she filed no action against him. The jury found 45% negligence on the part of Dedman; thus, this amount of negligence has been definitely determined, and there is no occasion nor reason for a separate suit. Again, from Uniform Laws Annotated, Yol. 9, page 249, comment as to the meaning of this subsection is made as follows:

“Part (b) of this Subsection is included to afford contribution on motion among parties subject to joint judgment liability to the injured person, where they had neglected to file cross-claims against each other for contribution pursuant to the provisions of part (a) of this Subsection. This is in accordance with established practice in several jurisdictions.”

Here, of course, Hodges actually did file a cross-action against Dedman seeking contribution.

Accordingly, when appellants have discharged the judgment obtained against them by Myrtle Dedman, they may file their motion for judgment for contribution from Bay Dedman, and the court shall enter such judgment against Dedman for 45% of the amount paid by appellants to Myrtle Dedman in satisfaction of her judgment. With such modification, the judgment is affirmed.

       Emphasis supplied.

       Emphasis supplied.

       Emphasis supplied.

        Buford v. Lewis, 87 Ark. 412, 112 S. W. 963.

       According to Prosser on Torts, 2nd Edition, paragraph 65, p. 363, in a discussion of joint enterprise, “where the enterprise is for some commercial or business purpose, and particularly where the parties have agreed to share profits and losses, it usually is called a joint adventure.”

       “Suppose P is hurt by the concurrent negligence of A and B, and sues A for damages. Without this Subsection, P’s action against A would proceed to judgment which A would pay. Then A would bring a separate action against B for contribution, in which 'the issues litigated would be substantially identical with those raised in P’s action against A as far as evidence is concerned. Under this Subsection, A could make B a third-party defendant and proceed to prove that if he, A, is liable, to P, B is also. The upshot would be that if he were successful in his claim against B, which would be litigated at the same time as P’s against A, then A, on payment of P’s judgment, could move in the same action for contribution against B, all of the germane issues having been settled in P’s action. This practice is already well-established in Wisconsin and in several British jurisdictions.” This illustration can be better understood by substituting Myrtle Dedman for “P,” Wymer and Hodges for “A,” and Ray Dedman for “B.”

       Emphasis supplied.