author: Paul Ward, Associate Justice.

text:
    Burnett v. Holiday Inns of America.
    5-3619
    391 S. W. 2d 27
    Opinion delivered June 7, 1965.

      Thomas & Finch, for appellant.

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

On March 5, 1964 John Burnett and his wife, appellants, entered into a written contract with Holiday Inns of America, Inc., appellees. In this contract appellants agreed “to enter into a lease within thirty (30) days from date hereof . . .” covering 3 acres of land (definitely described) upon which appellees were to construct a 48 room motel.

According to the contract the lease was to contain, among other things, the following items:

1. The lease to run 10 years and to he renewable for 9 additional 10 year periods.

“2. Lessee shall pay to lessor the sum equivalent to three per cent (3%) of gross room sales plus one per cent (1%) of all food and beverage sales. Lessee guarantees lessor a minimum monthly rental of $150 per month. ’ ’

3. Appellees to have right to purchase property at the end of 10 years for $35,000.

4. If appellees should build a filling station on the property they were to pay an additional sum of $50 per month.

5. Provision for tax payments, and appellees’ right to connect onto a sewer line.

6. Appellees to have the right to build onto the 48 room motel as needed.

Before the 30 days (mentioned in the contract) had expired the agent of appellees tendered to appellants a written lease (covering in detail each item in the contract) consisting of 8 pages in' the transcript. Appellants refused to accept and sign the proffered lease because, they said, it did not conform to the terms of the contract.

On May 4, 1964 appellees filed a complaint in chancery court to force appellants “to specifically perform their contract,” and to execute the lease previously presented to appellants. To the above complaint appellants filed an ansiver, pointing out Avherein the lease differed from the contract. After a full hearing the trial court found that the lease did not conform to the contract, but gave appellees 20 days to offer a conforming lease, pointing out the changes for appellees to make in the lease. Later, the court, after having found the suggested changes had been made, ordered appellants to execute the lease.

In addition to the above items the proffered lease contains section 10 which gave appellees the right, at the termination of the lease (whether at the end of 10 years or 100 years), to remove all assets placed on the land. No such provision is mentioned in the contract. Other changes were made in the lease but we do not deem them material.

Not only is it obvious from the above that the lease did not comply with the terms of the contract, but the trial court so found, and we think properly so. The trial court then attempted to reform the lease to conform to the contract and ordered appellants to accept it. This the court had no authority to do. In the case of Refrigeration Discount Corporation v. Haskew, 194 Ark. 549, (p. 551), 108 S. W. 2d 908, we clearly announced the rule that “Courts are not permitted to make contracts for persons sui juris, but only construe such as they have made.”

There was a legal obligation on appellees to present to appellants a lease in conformity with the contract, and when appellees failed to do so, appellants, in effect, rejected the contract. In the case of Smith v. School District No. 89, 187 Ark. 405 (p. 409), 59 S. W. 2d 1022, we said:

“. . . where an offer, is made the acceptance must be unequivocal and unconditional; that, where the acceptance is conditional or a new element is contained in it, there is no agreement, but such condition or new matter engrafted is to be deemed and treated as a rejection of the offer.”

In our opinion there were material differences between the contract and the lease prepared by appellees, and consequently, appellants were justified in rejecting the same.

While the contract called for 3% of “gross room sales” the proffered lease contained the following deductions : credits or refunds made to customers, guests or patrons; customary motel rebates and allowances; customary commissions and fees paid to travel agents for business referral; all sums and credits received in settlement of claims for loss or damage to merchandise; telephone, telegraph, laundry, dry-cleaning, valet, house service, food beverage and other charges normally and usually charged to or included in guest room statements or bills; rental value of rooms complimented by the lessee and the rooms occupied by members of the lessee’s staff, including the family of the innkeeper.

The contract obligated appellees to pay to appellants 1% “of all food and beverage sales” but the lease excepted therefrom all sales by vending machines; refunds made to guests or patrons; rebates to hotels and restaurants; commissions and fees paid to travel and booking agencies for business referrals;- cover charges collected from any customers; food and beverage bills or statements complimented by the lessee; and food and drinks supplied to lessees’ staff and family of the innkeeper. The rule above announced was cited with approval in Tucker Duck & Rubber Co. v. Byram, 206 Ark. 828 (p. 830), 177 S. W. 2d 759.

It was also the obligation of appellees to present an acceptable lease to appellants within 30 days from the date of the contract. This is clearly pointed out in 17 Am. Jur. 2d Contracts § 35 in the following language/

“An offer which specifies a period of time for its duration terminates, of course, upon the lapse of the time therein specified. ’ ’

The decree of the trial court is reversed and the cause of action is dismissed.

Reversed and dismissed.

Harris, C. J., dissents.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Reeves v. Ark. La. Gas Co.
    5-3597
    391 S. W. 2d 13
    Opinion delivered June 7, 1965.

      Maim £ McCulloch, for appellant.

      Daggett £ Daggett, By: James R. Van Dover, for appellee.
   Sam Robinson, Associate Justice.

Elizabeth Mc-Gowen and Emogene Gatling, sisters who were separated from their husbands, lived with their eleven children in a four room frame house at Forrest City. Elizabeth had five and Emogene had six children. Emogene worked at a hospital; Elizabeth stayed home and looked after the children.

On the night of March 3, 1964, about 9 p.m., Elizabeth and the eleven children were at home; Emogene was not there. It was raining, thundering and lightning; the house caught fire and burned down. Elizabeth and six of the children did not escape from the flames. Five children did escape; two of them, Evelyn Reese and one other, were burned to some extent.

Appellant herein, Hanna Beeves, mother of Elizabeth McGowen and Emogene Gatling, filed two suits against appellee, Arkansas Louisiana Gas Company; one as next friend of Evelyn Beeves, and one personally and as administratrix of the estate of Elizabeth Mc-Gowen, alleging that the gas company negligently failed to repair gas leaks in the house or to turn off the gas; that lightning struck the house igniting the escaped gas causing the injuries and damages complained of. The actions were consolidated and tried.

After the plaintiffs had rested, the court directed verdicts for the defendant. The verdicts were directed on the theory that it was not the duty of the gas company to repair or maintain the gas pipes and appliances in the house involved. This is ordinarily true, but here it is shown that the gas company had been notified about the odor of gas and took no steps to repair the leak or to shut off the gas. In a situation of this kind, the principle on which the court directed the verdicts may not apply.

But we have reached the conclusion that the directed verdicts were proper for another reason. There is no substantial evidence that a dangerous amount of gas had escaped; there is no showing that there was a gas explosion; there is no showing that gas burned in the house; there is no showing that escaped gas was the proximate cause of the damages complained of. It is firmly established that a correct ruling will not be reversed, although erroneous reasons may have been given for such ruling. Millsaps v. Nixon, 102 Ark. 435, 144 S. W. 915; Union Life Insurance Co. v. Brewer, 228 Ark. 600, 309 S. W. 2d 740; Southern Farm Bureau v. Reed, 231 Ark. 759, 332 S. W. 2d 615.

The only issue is whether there is any substantial evidence that there was an explosion of gas or that burning gas was a proximate cause of the tragedy. The appellant introduced evidence to the effect that for about three weeks immediately preceding the fire there had been a smell of gas in the house; that on three occasions the gas company had been notified and each time had promised to investigate the matter, but failed to do so. In testing the correctness of the action of the trial court in directing the verdicts we must give the evidence of the plaintiff its strongest probative force. Harper v. Mo. Pac. Rd. Co., 229 Ark. 348, 314 S. W. 2d 696.

First, appellant argues that it is the duty of the gas company upon being notified that gas is escaping in a house to either repair the leak or turn off the gas. But we need not discuss this point because there is no substantial evidence, direct or circumstantial, that gas was in any manner involved in the fire. In fact, the circumstantial evidence is to the contrary. There is no evidence that the smell of gas was any stronger on the night of the tragedy than when it was first noticed. During this time there had been open flames in the house daily. There were three gas stoves in the house, one in the living room, one in the front bedroom, and a cooking-stove in the kitchen; all produced open flames. In additipn, there was a pilot light on the cooking stove; sometimes it would go out and would be relighted with a match, and some of the occupants smoked cigarettes which they would light with an open flame. The evening of the fire the occupants had cooked supper on the kitchen stove. There is no showing- that lightning would be more likely to ignite escaping gas than would any other kind of open flame. The fire started in the back bedroom. The children that were burned to death were in that room, but there was no stove or gas connection in that room.

Earnest Howard testified that he lives across the railroad tracks from the burned house; that he had laid .down across the bed about 6:30 and was awakened by a loud explosion (the house burned about 9 p.m.); that it sounded like a sonic boom; that he looked out the window and saw the house on fire, flames were shooting-out the windows and doors like a flamethrower. He further testified that the house was completely aflame when he first saw it and that it could have been burning for 30 minutes. “Part of the decking was still there.” In view of Evelyn Beeves’ testimony, Howard’s statement cannot be construed as substantial evidence going to prove that the noise he heard was an explosion of gas in the home that burned.

Evelyn testified that she was in the living room talking over the phone to a boyfriend, Charles Smith; that two other girls and her mother were in the living-room; her mother was looking- at TV. Evelyn stated' that she heard a “boom”; that whatever the noise was it did not shake the house and she did not stop talking-on the phone; that the first she knew of the fire she heard her mother, Elizabeth, say “Evelyn, this house is on fire. Help me get the children out.” At that time her mother had not been injured; the flames were coining- from the back bedroom.

Evelyn further testified that it was warm that evening; no stoves were needed; that she, Shirley Aim and her mother were in the living room; the thunder and lightning had been going on about two or three minutes at the time of the boom. “I don’t know how long the fire had been burning before I heard the boom. It could have been burning five minutes or more.” She first saw the fire coming from the back bedroom; none of the doors in the house, were closed.

Emogene Gatling- testified that she called home that night before the fire; that “Diana answered the phone and I said ‘Let me talk to Elizabeth’ and she said all of them was in bed and she said everything- was o.k.” She also testified that the house was loosely constructed and had no underpinning.

The evidence of Evelyn is that she was talking over the phone to a boyfriend; that her mother was looking at TV, and there were two other children in the living-room at the time the fire started.

To sustain the argument that escaped gas in the house was a proximate cause of the fire, appellant cites several cases, but none of the cases would sustain a finding that there is substantial evidence that burning gas was a proximate cause of the fire. Appellant cites the following Arkansas cases:

Gibson Oil Co. v. Sherry, 172 Ark. 947, 291 S. W. 66. The oil company drained gasoline into the street. No doubt about the gasoline catching fire and causing the damage.

Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S. W. 885. Occupants of house were asphyxiated "by gas. No doubt about cause of injury and deaths. The only question was whether the gas company had negligently allowed the pressure in the pipes to get so low that stoves went out and then the gas pressure was increased.

City Electric Street Ry. Co. v. Conery, 61 Ark. 381, 33 S. W. 426. There was substantial evidence that electric company negligently allowed electricity to escape. The positive and uncontradicted evidence was that the electricity injured a pedestrian who came in contact with a wire charged with electricity.

Arkansas Louisiana Gas Co. v. Strickland, 238 Ark. 284, 379 S. W. 2d 280. The only point on appeal was that the judgment was excessive.

Dixie Furniture Co. v. Deason, 226 Ark. 742, 293 S. W. 2d 706. The furniture company moved a stove; left pipe uncapped; no doubt that escaping gas exploded.

Tri-County Gas & Appliance Co. v. Charton, 229 Ark. 989, 320 S. W. 2d 103. No doubt that escaping butane gas caused fire.

Sinclair Refining Co. v. Gray, 191 Ark. 175, 83 S. W. 2d 820. Injury to four year old boy caused by an explosion of gas tank owned by appellant.

Martin v. Camden Gas Co., 179 Ark. 481, 17 S. W. 2d 309. Gas meter exploded causing fire.

Pine Bluff Water & Light Co. v. Schneider, 62 Ark. 109, 34 S. W. 547. Gas pipe was broken and leaking; explosion occurred when employee struck match looking for leak.

Pulaski Gas Light Co. v. McClintock, 97 Ark. 576, 134 S. W. 1189. McClintock was found dead with his face over an open gas pipe.

In none of the foregoing cases was there any question about the proximate cause. There were serious questions about evidence of negligence, but not about the proximate cause. .The proximate cause was shown in each case. Here, there is no showing of the proximate cause of the fire.

To say what caused the fire would be pure speculation, sustained by no substantial evidence. It could have been caused by lightning, but no one says that lightning-struck the house. At the time Eveleyn heard a boom she was talking over the phone; it did not interrupt her conversation; it did not shake the house. But regardless of what started the fire, there is no evidence that any gas was ignited. There was no explosion in the house; Evelyn was not injured while talking- over the phone; her mother had not been injured at the time she said “This house is on fire.” There is no indication that there was any more gas in the house than there had been for about three weeks, during- which time there had been open flames in the house much of the time. True, the fire spread rapidly, but the evidence is that the frame house was loosely constructed, there was no underpinning, and the windows and doors were open. The fire had gained headway when Elizabeth made the remark about the house being on fire. Flames were coming from the back bedroom, but as heretofore mentioned, there was no gas connection or outlet in that room. '

An analogous principle regarding proximate cause was involved in the case of Jeffery v. Gordon, 236 Ark. 180, 365 S. W. 2d 128. There, Gordon parked a truck loaded with hay near an overpass which was under construction by Jeffery. The hay caught fire, causing considerable damage to the overpass. Jeffery filed suit against Gordon alleging that the defendant negligently parked the hay, a highly inflammable and combustible commodity, in close proximity to the overpass. As in the case at bar, the trial court directed a verdict for the defendant. In affirming the judgment this court held that although assuming the defendant was negligent in parking the hay near the overpass, it was not shown that such negligence was the proximate cause of the resulting fire. The court said: “The law is well settled in this State that before one can be held liable for an alleged negligent act, the act must be the proximate cause of the injury complained of . . .” Likewise, in the case at bar, assuming that the defendant was negligent in not turning off the gaSj there is no substantial evidence that the gas exploded or burned; there is no showing that the assumed negligence was a proximate cause of the fire.

In Kapp v. Sullivan Chevrolet Co., 234 Ark. 395, 353 S. W. 2d 5, the court quoted from Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4, as follows:

“ ‘Conjecture and speculation, however plausible, cannot be permitted to supply the place of proof,’ and in Turner v. Hot Springs Street Railway Company, 189 Ark. 894, 75 S. W. 2d 675, we find this language:
‘The trial court was correct in directing a verdict for appellee, because the testimony adduced by appellant was not sufficient to show that the injuries received were proximately due to any negligence of appellee. No witness testified that appellant’s fall was proximately due to the small pieces of snow and ice afterwards seen in the vestibule of the street car. It is true, the jury might have guessed or speculated that her fall was caused by stepping upon the small pieces of ice and packed snow in the vestibule of the street car, but, on the other hand, it was equally probable that her fall was caused by packed snow or, ice which had accumulated on her own shoes. The point is, juries are not permitted to guess or speculate as to the proximate cause of an alleged injury, the burden resting upon appellant to show by a preponderance of the evidence that her injuries were caused by some negligent act or omission of appellee.’

In the same case, quoting from an earlier case, we said:

‘It is not allowable, under the rules of evidence, to draw one inference from another, or to indulge presumption upon presumption to establish a fact. Reasonable inferences may be drawn from positive or circumstantial evidence, but to allow inferences to be drawn from other inferences, or presumptions to be indulged from other presumptions, would carry the deduction into the realm of speculation and conjecture.’ ”

Affirmed.


text:
    King, Adm’r v. Bean, Judge.
    5-3622
    391 S. W. 2d 24
    Opinion delivered June 7, 1965.

      Jeff Mobley and William R. Bulloch, for appellant.

      Wright, Lindsey, Jeimings & Shults and Gordon & Gordon, for appellee.
   Sam Robinson, Associate Justice.

On the 10th day of October, 1964, in Pulaski County, an automobile occupied by Clayton E. King and Suzanne Seago collided with an automobile occupied by Varnold Stobaugh, Carolyn Stobaugh, Hurl D. Boyer and Margaret Boyer. King and Suzanne Seago were residents of Pulaski County; the Stobaughs and Boyers were residents of Conway County. King died from the injuries he received in the collision.

Six days after the mishap, L. E. King, administrator of the estate of Clayton E. King, and Suzanne Seago filed separate suits in Pulaski County for damages alleged to have been caused by the collision. Both of the Stobaughs and both of the Boyers were named as defendants in each suit. The plaintiffs in each suit caused summonses to be issued for all four defendants. Summonses in each case were placed in the hands of the Sheriff of Pulaski County, and like summonses were sent by registered mail to the Sheriff of Conway County.

At the time the summonses were placed in the hands of the Sheriff of Pulaski County it ivas known that the defendant Varnold Stobaugh, a resident of Conway County, was confined to'a hospital in Pulaski County; the Sheriff of Pulaski County was given this information. Margaret Boyer, who lived in Conway County, was also confined to the same hospital as Stobaugh in Pulaski County, but the attorney for the plaintiffs did not have that information, nor did the Sheriff of Pulaski County. The Pulaski County Sheriff served the summonses on Varnold Stobaugh that had been issued in both cases filed in Pulaski County.

On the 16th day of October, the same day suits were filed in Pulaski County, the heretofore mentioned summonses which had been issued and directed to the Sheriff of Conway County, were sent by registered mail to the sheriff of that county. The next day, October 17, an attempt was made by postal employees to deliver the registered mail containing the summonses to the’ Sheriff of Conway County, but the sheriff was not in his office and the postman would not leave the registered mail without the sheriff personally signing for it, but written notice to the sheriff of the registered mail was left at the sheriff’s office. Again on October 21, written notice to the sheriff of the registered mail was left at the sheriff’s office. The sheriff got neither notice.

The Sheriff of Conway County finally got the registered mail and served the summonses on October 28. In the meantime, on October 19, Margaret Stobaugh and the Boyers filed suit in Conway County against L. E. King, administrator of the estate of Clayton E. King, and Suzanne Seago. On October. 20, summonses were placed in the hands of the Sheriff of Pulaski County and served on that date.

The plaintiffs in the Pulaski County actions filed motions to dismiss the suits filed by Margaret Stobaugh and the Boyers in Conway County, alleging that the Pulaski Circuit Court had first acquired jurisdiction by reason of the actions having been first commenced in Pulaski County. The Conway Circuit Court overruled the motions to dismiss. King, the administrator, and Suzanne Seago, have petitioned this court for a writ of prohibition to prevent the trial of the cases in the Conway Circuit Court.

There are two points involved. First, was there a commencement of the actions within the meaning of the statute against all the defendants when summonses were placed in the hands of the Sheriff of Pulaski County? Second, was there a delivery of the summonses issued out of the Pulaski Circuit Court to the Sheriff of Conway County within the meaning of the statute when the postal employee attempted to deliver the registered mail on October 17, which was two days before the actions were filed in Conway County?

We do not need to deal with the first point, because we have reached the conclusion that there was a delivery of the Pulaski summonses to the Sheriff of Conway County within the meaning of the statute when the registered mail containing the summonses was taken to the sheriff’s office by the postman on October 17.

In several cases prior to 1961 this court held that in races to obtain service the winner was the one fortunate enough to have summons actually served on his adversary before he himself was served. In some instances, the one who was first to place the summons in the hands of the sheriff was not the one who won the race for favorable venue because of a sheriff’s procastination in serving the summons, or for other reasons. Of course, there is no way to compel the sheriff to serve the summons at any particular time. If the sheriff was friendly he might serve the summons immediately, but if he was not too friendly, he might require considerable time to get around to attending to the matter.

To alleviate this situation, the General Assembly of 1961 amended Ark. Stat. Ann. § 27-301 (Kepi. 1962) dealing with the commencement of action, to read as follows: .

“A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon, and placed in the hands of the sheriff' of the proper county or counties. If two [2] or more actions are commenced in different courts involving the same subject matter, where the venue is proper in each, then that court shall acquire jurisdiction, to the exclusion of the other, wherein a complaint was filed and a summons issued thereon, and first placed in the hands of the sheriff of the proper county or counties, irrespective of the time of service of summons. Each clerk of the court shall endorse on each complaint the exact date and time of day when the complaint was filed and a summons issued thereon and each sheriff shall endorse on each summons the exact date and time of day when the summons was placed in his hands.”

Under the provisions of the foregoing statute, if the summons issued out of Pulaski County was placed in the hands of the Sheriff of Conway County before the summons issued in Conway County was placed in the hands of the Sheriff of Pulaski County, the Pulaski Court first acquired jurisdiction and the petition for prohibition should be granted.

The issue turns on the point of whether the attempt to deliver the registered mail to the Sheriff of Conway County at the sheriff’s office on October 17 was placing the summonses in the hands of the sheriff within the meaning of the statute. Section 58 of the Civil Code clearly states when an action is commenced. This section of the Code was brought forward as Section 1049 of the C. & M. Digest, Section 1251 of Pope’s Digest, and it was Section 27-301 of Arkansas Statutes, until amended in 1961. Prior to the amendment, the statute read: “When Commenced. A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon. ’ ’

In many cases, in accordance with the statute, this court held that an action was commenced when the complaint was filed, the summons issued and placed in the hands of the sheriff. St. Louis, A & T R. Co. v. Shelton, 57 Ark. 459, 21 S. W. 876; Sims v. Miller, 151 Ark. 377, 236 S. W. 828. The summons must have been delivered to the proper officer with directions to serve. Burks v. Sims, 230 Ark. 170, 321 S. W. 2d 767.

But in 1952, in the case of Healey & Roth v. Huie, 220 Ark. 16, 245 S. W. 2d 813, this court held that a suit in a transitory cause of action was not commenced until the sheriff had actually served the summons. Subsequently, Healey & Both was followed in several cases, including Woodruff Electric Cooperative Corp. v. Weis Butane Gas Co., 221 Ark. 686, 255 S. W. 2d 420; Carnes, Admx. v. Strait, Judge, 223 Ark. 962, 270 S. W. 2d 920; Carpenter v. Baskin, 224 Ark. 315, 273 S. W. 2d 25; Rhinehardt v. Light, Judge, 225 Ark. 1045, 287 S. W. 2d 463; Hicks v. Wolfe, Judge, 228 Ark. 406, 307 S. W. 2d 784.

The statute, however, still read that the action was commenced when the complaint was filed in the proper court and summons issued. Thus, seemingly there was a conflict between the statute and the decisions of this court. Moreover, under our decisions, regardless of how diligent a party might be in attempting to commence an action, it was within the power of the sheriff to determine when the action would be commenced.

Undoubtedly, in amending Ark. Stat. Ann. .§ 27-301 (Bepl. 1962), it was the intention of the General Assembly to return to a litigant the power to determine when he would commence the lawsuit. If we should now hold that the statute means the summons must be literally placed in the hands of the sheriff in a situation of this kind, we would be perpetuating the evil that the General Assembly attempted to correct. There is no surer way a litigant could get a summons to the sheriff and be able to prove the time of delivery than to send it by registered mail. Here, the petitioner did that very thing.

We hold that the summonses were placed in the hands of the sheriff, within the meaning of the statute, when the postal employee took the registered mail containing the summonses to the sheriff’s office and attempted to deliver it, and upon being unable to do so, left a written notice that the registered mail was at the Post Office. It necessarily follows that petitioners’ action was commenced in Pulaski County before their adversaries’ action was commenced in Conway County.

Petition for Writ of Prohibition is, therefore, granted.

Ward, J., dissents.


author: Jim Johnson, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Savage v. Hawkins. Brents v. Hawkins.
    5-3591-92
    391 S. W. 2d 18
    Opinion delivered June 7, 1965.

      Thorp Thomas, for appellant.

      Gordon'S Gordon and Jack L. Lessenberry, for appellee.
   Jim Johnson, Associate Justice.

These appeals arise from two writs of prohibition.

On October 14, 1964, appellant Leon Brents, a Conway County justice of the peace, upon receipt of an affidavit for warrant of arrest alleging that appellee Sheriff Marlin Hawkins had on May 12, 1958, committed the offense of “obtaining personal property by false pretense,” issued a warrant of arrest for appellee. After service, appellee appeared before appellant. and asked for a change of venue, which was denied. A petition for writ of prohibition was filed in Conway Circuit Court on October 15, 1964, and the circuit court ordered appellant to appear October 20,1964, to show cause why the writ should not be granted.

On October 19, 1964, another Conway County justice of the peace, appellant Walter Savage, issued a warrant for appellee’s arrest on an affidavit for warrant of arrest alleging that appellee had ‘ ‘ obtained personal property by false pretense” on June 25, 1955. A petition for writ of prohibition was filed in Conway Circuit Court that same day and appellant Savage was directed to appear the following morning at 9:00 A.M. and show cause why the writ should not be issued.

The following morning, October 20, 1964, the circuit court heard both cases and granted the writs, from which come these two appeals.

For reversal, both appellants urge that the court erred in granting the writs since the justice of the peace courts had jurisdiction to hear the matters as examining courts.

Arkansas Stat. Ann. § 41-1901 (Repl. 1964) describes the offense of obtaining personal property by false pretense as follows:

“Every person, firm or corporation who with intent to defraud, cheat or avoid payment therefor, shall designedly by color of any false token or writing, or by any other written or oral false pretense, obtain a signature to any written instrument, or obtain any money, personal property, right of action, service, information or other valuable thing or effects whatever, upon conviction thereof, shall be deemed guilty of larceny, and punished accordingly. ’ ’

The affidavits for warrant of arrest in the records before us describe offenses which, if timely filed and proven, would fall squarely within this statute. Lamb v. State, 202 Ark. 931, 155 S. W. 2d 49.

Arkansas Stat. Ann. § 43-1602 (Repl. 1964) provides as follows:

“No person shall be prosecuted, tried and punished for any other felony [other than capital] unless an indictment be found within three [3] years after the commission of the offense; Provided, that in cases of embezzlement of funds by an administrator, guardian, or curator the limitation shall not begin to run until an accounting has been had and such administrator, guardian, or curator has been ordered by a court of competent jurisdiction to pay over the funds and in other cases of embezzlement of trust funds the limitation shall not begin to run until the defalcation is discovered.”

Clearly, the offense of ‘ ‘ obtaining personal property by false pretense” does not fall within one of the exceptions provided in the statute of limitations. This being true, we are bound by the historic rule that penal statutes are to be strictly construed in favor of the accused and courts are not permitted to enlarge the punishment provided by the legislature either directly or by implication. State v. Simmons, 117 Ark. 159, 174 S. W. 238. It follows therefore that in felony prosecutions the state must prove the commission of the felony within three years next preceding the filing of the information or the finding of the indictment. Oakes v. State, 135 Ark. 221, 205 S. W. 305; Willis v. State, 221 Ark. 162, 252 S. W. 2d 618. See generally, Grayer v. State, 234 Ark. 548, 353 S. W. 2d 148. Unlike some of the civil statutes of limitation which are waived unless pleaded, this limitation of prosecution statute (§ 43-1602, supra) is jurisdictional. Under the express wording of the statute that “No person shall he prosecuted, tried and punished for any felony unless an indictment he found within three years after the commission of the offense,” after three years (unless the running of the statute is tolled) a court is without power to try the case. On the face of the record it is manifest that the justice of the peace courts here were without jurisdiction to try the alleged offenses occurring in 1955 and 1958 for which warrants were issued in 1964. (See Pate v. Toler, 190 Ark. 465, 79 S. W. 2d 444; McIlwain v. State, 226 Ark. 818, 294 S. W. 2d 350.) Thus “the writ of prohibition, as here defined [Ark. Stat. Ann. § 33-103 (Repl. 1962) ], is an order of the Circuit or Chancery Court to an inferior court or tribunal, prohibiting it from proceeding in a cause or matter over which it has no jurisdiction” and was properly issued.

Appellant Savage urges that the court erred in fixing the time for hearing the writ sought against him in less than two days, and relies on Ark. Stat. Ann. § 33-106 (Repl. 1962) :

“For hearing and determining all such petitions [for prohibition], the Circuit and Chancery Courts shall be open at all times and upon the written application of the petitioner or any other interested party, it shall be the mandatory duty of the judge or Chancellor having jurisdiction, to fix and announce a day of court to be held no sooner than two [2] days and no longer than seven [7] days thereafter, to hear and determine the cause.”

This statute is expressly mandatory. Appellant Savage should have received the minimum two days notice. However in this particular instance it would serve no useful purpose to remand this cause for further development, where as here the face of the record conclusively shows that appellant justice of the peace was clearly without jurisdiction since the alleged offense occurred without the limitation of prosecution and there could-be no further development by the circuit court.

Affirmed.

McFaddin, J., dissents.

Ed. F. McFaddin, Associate Justice

(dissenting). I would reverse the Circuit Court judgment in both of these cases. One reason for my dissent is because prohibition was not the proper remedy for Sheriff Marlin Hawkins to pursue in either case. In the Brents case the additional reasons for my dissent are because of (a) the failure of the Circuit Court to allow the respondent Brents the statutory time for defense; and (b) the fact that Sheriff Hawkins filed a motion for change of venue, and thereby submitted to the jurisdiction of the Justice of the Peace Court. But I will discuss only the improper use of the writ of prohibition.

We have a long line of cases which hold that the writ of prohibition does not issue to prohibit a lower court from erroneously exercising its jurisdiction. Bassett v. Bourland, 175 Ark. 271, 299 S. W. 13; Terry v. Harris, 188 Ark. 60, 64 S. W. 2d 80; Ritholz v. Dodge, 210 Ark. 404, 196 S. W. 2d 479. When the existence or nonexistence of jurisdiction depends on contested facts which the inferior court is competent to inquire into and determine, prohibition will not be granted although the superior court should be of the opinion that the claims of-fact had been wrongfully determined by the lower court. Merchants & Planters Bank v. Hammock, 178 Ark. 746, 12 S. W. 2d 421; Crowe v. Futrell, 186 Ark. 926, 56 S. W. 2d 1030; Chapman & Dewey Lbr. Co. v. Means, 191 Ark. 1066, 88 S. W. 2d 829; Byrd v. Taylor, 224 Ark. 373, 273 S. W. 2d 395.

There can certainly be no doubt that the Justice of the Peace Court has jurisdiction (a) to handle prosecutions for misdemeanors as the Savage case involved, or (b) to conduct examining trials as the Brents case involved. The only defense suggested by the appellee in these cases is that the claimed offenses were barred by limitations; but limitations is a plea of defense. It does not deprive the Trial Court of jurisdiction but is a defense that the defendant may or may not offer, as he sees fit. Sheriff Hawkins should have offered the plea of limitations as a defense in each Justice of the Peace Court; and if the plea had been disallowed he could have then appealed to the Circuit Court.

The fact that limitations is a plea of defense is true both in civil cases and criminal cases; and the plea of limitations may be made under the general plea of not guilty. State v. Gill, 33 Ark. 129; Oakes v. State, 135 Ark. 221, 205 S. W. 305. In 22 C.J.S. 1264, “Criminal Law” § 449, the general rule is stated: “Limitations must be set up at the trial to be available ... A plea of limitations is a plea in bar, and if the statute is relied on it must be set up at the trial, either by special plea or under the general issue.” It is only in cases of contempt where the alleged contempt is stale that prohibition is the proper remedy. See Pate v. Toler, 190 Ark. 465, 79 S. W. 2d 444. In all other cases the plea of limitations is a plea of defense and must be set up like any other plea in the Trial Court and not raised.by prohibition.

Because of the erroneous use of the writ of prohibition by the Circuit Court, I would reverse these cases.

       For civil cases see those collected in West’s Arkansas Digest, “Limitation of Action” § 182.


author: Jim Johnson, Associate Justice.

text:
    Federal Life & Casualty Co. v. Weyer.
    5-3603
    391 S. W. 2d 22
    Opinion delivered June 7, 1965.

      Kirsch, Cathey & Brown, for appellant.

      Robert Branch, for appellee.
   Jim Johnson, Associate Justice.

This appeal involves Ark. Stat. Ann. § 66-3238 (Supp. 1963), a statute allowing penalty and attorneys’ fees in certain suits against insurance.

The facts are' not disputed. In 1957, appellant Federal Life and Casualty Company issued a policy to appellee Zieba Weyer providing for payment of $100.00 per month for twelve months if she became totally disabled as a result of sickness. Early in 1963, appellee made a claim for benefits and was paid for a period from February to May 1963.' Appellant determined that the insured had resumed work in April, 1963, and wrote her several letters demanding repayment of the last $100 payment. On October 15, 1963, appellee’s attorney wrote appellant that appellee was totally disabled, enclosed medical reports from two doctors verifying the disability, and admitted that the insured had been overpaid $100, which should “be credited against the amount which you now owe her”. On October 28, 1963, appellant wrote appellee’s attorney that it had proof that appellee worked' through July of 1963, that “benefits for total disability as the result of an illness are payable when the insured is totally and continuously disabled and under the regular care of a duly licensed physician” and, “since appellee returned to work on April 20, we feel she is not entitled to benefits after that date”.

On January 10, 1964, appellee filed suit in Greene Circuit Court against appellant, alleging the existence of the policy, that during February of 1963 appellee became totally disabled and claimed and was .paid benefits by appellant, that she attempted to resume work in April and continued to attempt to work periodically until August 12, 1963, since which time appellee has been totally disabled. The complaint stated that appellant was entitled to $100 credit for the benefits paid in April; that appellee had given appellant notice of her claim which appellant refused to pay and denied liability under the policy. The complaint prayed for judgment for $400 plus any additional amounts which might accrue during pendency of the suit, plus twelve percent penalty, attorney’s fee and costs.

Appellant filed a plea in abatement and answer, praying that, the suit be abated until appellee filed notice of claim and proof of loss, that appellant be given a reasonable time within which to determine its position with regard to such claim, and to be permitted to file further responsive pleadings. Appellant thereafter filed its amended answer, conceding that based on a medical report it was liable to appelle for the benefits sued for, subject to credit for the $100 previously paid, and prayed judgment be rendered in accordance with its answer but that no penalty or attorney’s fee be assessed. On October 16,1964, appellant’s motion for summary judgment came on for hearing. It was stipulated that the only issue was appellee’s prayer for twelve percent penalty and attorney’s fee. After taldng the matter under advisement, on December 30, 1964, the trial court granted judgment for appellee with twelve percent penalty and attorney’s fee; from which comes this appeal.

For reversal appellant urges that the circuit court erred in awarding any penalty or attorney’s fee in this case.

The applicable statute reads as follows:

“§ 66-3238. Suits against insurers — Damages and attorney fees on loss claims. In all cases where loss occurs . . . and the . . . insurance company . . . liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such . . . corporation . . . shall be liable to pay the holder of such policy, in addition to the amount of such loss, twelve (12%) damages upon the amount of such loss, together with all reasonable attorneys’ fees for the prosecution and collection of said loss; ...”

The policy in its “Time for Payment of Claims” clause states: “Subject to due written proofs of loss, all accrued indemnities for loss for which this policy provides periodic payment will be paid monthly and any balance remaining unpaid upon the termination of liability will be paid immediately upon receipt of due written proof. ’ ’

As we have seen, the- policy here involved required that benefits be paid monthly. The benefits were not paid monthly — in fact benefits were not paid at all until judgment was confessed at a time subsequent to accrual of all benefits. There is no question here as to whether the amount sued for was collected.

Loss commenced August 12, 1963. Notice of the claim, together with medical reports, was given the company by appellee’s attorney on October 15, 1963. The policy requires that the company, upon receipt of a notice of a claim, furnish the claimant forms for filing proofs of loss. There is no evidence that such claim forms were ever provided by appellant. An insurance company, by its conduct, may waive the requirement for proof of loss. Farmers Mutual Ins. Co. v. Benniston, 237 Ark. 768, 376 S. W. 2d 252. Further, appellant’s denial of liability in its letter of October 29, 1963, was effective waiver of formal proof of loss.

It is well settled that attorney’s fee and penalty attach if the insured is required to file suit, even though judgment is confessed before trial. Equitable Life Assurance Society of the U. S. v. Gordy, 228 Ark. 643, 309 S. W. 2d 330. Demand was made and liability under the contract established. The requirement of the statute being thus satisfied, LaSalle Fire Insurance Company v. Jenkins, 185 Ark. 484, 47 S. W. 2d 792, it follows that in the absence of a showing by the insurance company that its actions come within the many exceptions to liability for the statutory penalty and attorney’s fee, the judgment is affirmed.


author: Frank Holt, Associate Justice.

text:
    Parker v. Hendriks.
    5-3571
    393 S. W. 2d 251
    Opinion delivered June 7, 1965.
    [Rehearing denied September 20,1965.]

      Arnold & Hamilton, for appellant.

      N. L. Schoenfeld, for appellee.
   Frank Holt, Associate Justice.

A local option election was held in Ouachita County on November 6, 1962 with results being certified in favor of prohibition. The election was promptly contested by certain wets. When the issue reached this court we dismissed the wets’ appeal by a per curiam order on October 12, 1964. Their petition for rehearing was denied and our mandate was issued on November 10, 1964 and filed with the Ouachita County Circuit Clerk on November 12, 1964. The county remained wet while the election contest was pending in the courts because the filing of the contest suspended the election results. Hedrick v. Hickman, 225 Ark. 273, 280 S. W. 2d 406; Ark. Stat. Ann. § 48-826 — 7—8 (Repl. 1964).

On November 3, 1964 another local option election was held in Ouachita County and the result this time was declared in favor of the wets. Thereupon the drys, appellants, promptly filed- an election contest which is still pending in the Ouachita County Court. Following this the prosecuting attorney advised that as a result of the present contest the county was dry effective November 12, 1964, the date of the receipt and filing of our mandate in the previous contest, and that the various alcoholic beverage dealers in the county had sixty days in which to dispose of their stock. The appellees, the wets, then filed a petition for a declaratory judgment in the Ouachita Chancery Court and the appellants intervened. The Chancellor heard the case on stipulated facts and decreed that since it was duly certified that a majority had voted for the manufacture and sale of alcoholic beverages in the November 1964 election, that such election was determinative of the issue before the court and, therefore, the county was wet pending the outcome of the present election contest in view of Act 212 of 1957 [Ark. Stat. Ann. § 48-826 — 7—8 ) (Repl. 1964)].

On appeal appellants contend for reversal that the trial court erred in holding that the filing of the election contest by them did not suspend the result of the November 1964 election pending the final determination of the contest. We must agree with the appellants.

The case of Hedrick v. Hickman, supra, is controlling in the case at bar. There the basic issue was the same as now presented. The drys had apparently won a local option election and the wets contested the election. The wets contended that their contest suspended the election results. We agreed and in determining this contention we said:

“On the merits the question is whether the filing of a contest can suspend the effect of a local option election ■until the contest is decided. It Cannot be doubted that such a suspension was contemplated by the Thorn Liquor Law of 1935. By that act the county board of election commissioners was required to certify the election result to the county clerk. The clerk was directed to keep the certificate until the next regular term of the county court, when it became the duty of the county judge to have the certificate spread of record in his court. Ark. Stats. 1947, § 48-809. Ordinarily the dry law then became effective at the expiration of sixty days from the recording of the certificate. § 48-810. If, however, a contest were filed the law directed that the certificate not be recorded. § 48-820. It was also declared that contests should be governed by the laws applicable to the contest of any election of county officers. Ibid. The statutes so referred to permit appeals to be taken with or without supersedeas. § 3-1204. Thus under the procedure adopted in the Thorn Liquor Law the institution of a contest suspended the effective operation of the election, not only by the withholding of the certificate from the public records bu,t also by the authorisation of lorits of supersedeas on appeal.” [Emphasis added]

However, appellees forcefully argue that Act 15 of 1955 and Act 212 of 1957 have the effect of superseding Hedrick v. Hickman, supra (1955) and the pertinent statutes construed therein. We have carefully considered both acts and neither affects our decision in that case. Act 15 of 1955 merely restricts local option elections to the general election.date every two years and expressly states it is cumulative to initiated Act No. 1 of 1942 which was considered by us in Hedrick v. Hickman, supra. Act 212 of 1957 [Ark. Stat. Ann. § 48-826 — 7—8] merely provides that when a local option election is favorable to the clrys the retail dealers shall have sixty days to dispose of their stock after the final determination of the result of the'election and that a final determination, when the election is contested, means the date of the issuance of the mandate by the court finally determining the election contest. So it must be said that there is nothing expressly or by implication in this act which repeals the election laws governing local option contest procedure as construed by us in Hedrick v. Hickman, supra. Neither act covers anew the entire subject considered by us in that case. Nor are these two acts in irreconcilable conflict with the statutes on the subject before us.

Appellants also contend that pursuant to Ark. Stat. Ann. § 48-827 Ouachita County became legally dry not later than November 10, 1964, the date of the issuance of the mandate of this court finally determining the November 1962 election contest between the wets and the drys.

However, for good cause shown it is directed that an immediate mandate be issued and that appellees be allowed sixty days from the date of the issuance of this mandate in which to dispose of their stock. This does not prejudice the right of appellees to file a petition for rehearing.

The decree is reversed and the cause remanded with directions to enter a decree not inconsistent with this opinion.

Reversed and remanded.


text:
    Izard v. Ark. Savings & Loan Association Board
    5-3583
    393 S. W. 2d 245
    Opinion delivered June 7, 1965.
    [Rehearing denied September 20, 1965.]

      Thomas Harper, for appellant.

      William H. Botoen, for appellee.
   Frank Holt, Associate Justice.

Appellants bring this appeal from a judgment of the Circuit Court of Pulaski County affirming a decision of the Arkansas Savings and Loan Association Board denying appellants’ application for a charter to do business as a savings and loan association in Yan Burén, Crawford County, Arkansas.

Ark. Stat. Ann. § 67-1824 (Supp. 1963) [Act 227 of 1963] requires that before approving a charter application the Board must affirmatively find: (1) that all the prerequisites for the approval of a charter set forth in the act have been compiled with; (2) that the applicants are financially fit and qualified as to integrity and responsibility; (3) that there is a public need for the proposed association and prospects for its successful operation exist; and (4) that the granting" of the application would not unduly harm any existing savings and loan association or other financial institution. The Board conducted a hearing and found from the evidence adduced that appellants had met all the enumerated requirements except the showing of a public need for the proposed association and that the venture would be successful. Accordingly, the application was denied. The findings of the Board are conclusive if supported by substantial evidence. Ark. Stat. Ann. § 67-1811. On appeal appellants contend for reversal that there is no substantial evidence to sustain the Board’s denial of the application.

The granting of the application was protested by five building and loan associations of Fort Smith, Arkansas. 'They presented two witnesses who are officials from those organizations. They testified, inter alia, that in their opinion there was no need for a savings and loan association in Yan Burén and if one were chartered, it had no prospect of a successful future. It was stipulated by the parties that other officials of these organizations would corroborate this testimony. A careful review of the record reflects that the testimony of the protestants is largely a matter of conclusions without a sufficient or satisfactory explanation of the facts upon which the conclusions or opinions are based. We have held that such evidence is insubstantial in nature. Arkansas State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738; Couch v. Rockafellow, 205 Ark. 1153, 172 S. W. 2d 920. See, also, Hawkins v. Celebreese, 210 F. Supp. 351 (Western Dist. Arkansas 1962).

Appellants presented numerous local witnesses in behalf of their application. These witnesses were representatives from banking, insurance, real estate, farming, city officials, the chamber of commerce, school officials and other professions. They testified there was a definite need for the proposed facility in Van Burén and Crawford County although they admitted they had no “quarrel” with the protestants. It is undisputed there is no savings and loan association in Van Burén [population 6,787, 1960 census] or Crawford County [population 21,318, 1960 census]. The five protestants are located in Fort Smith in an adjoining county five miles distant across the Arkansas River. The next nearest savings and loan association is located in Clarksville in Johnson County which is 55 miles distant. There was evidence that ten savings and loan associations are being operated successfully in the state in various cities having considerably less population than Van Burén. In one of these smaller cities there are two successful savings and loan associations. There was evidence that Van Burén has one of only four of the Port Authorities in Arkansas and is enjoying an unusual period of growth with the building construction in the past year being phenomenal. Since 1958 the two banks in the county [Van Burén and Alma] have doubled their business operations. There has been a steady increase in school enrollment requiring an expansion of the school facilities. The tenor of appellants’ evidence is that the proposed savings and loan association is needed and would be a successful venture.

We are of the opinion that the appellants met the requirement that a public need existed for the proposed association in Van Burén an'd Crawford County, that it would be a successful operation, and, further, there is no substantial evidence to the contrary.

The judgment is reversed and the cause remanded to the circuit court with directions to enter a judgment requiring the Board to grant the application.

[Reversed and remanded.


author: Carleton Harris, Chief Justice.

text:
    Warwick v. Civil Service Commission of Malvern
    5-3617
    393 S. W. 2d 616
    Opinion Delivered September 13, 1965.

      Earl J. Mazander, for appellant.

      Dorsey D. Glover, for appellee.
   Carleton Harris, Chief Justice.

This appeal relates to the dismissal of a Malvern police officer, Clyde Warwick, appellant herein. Warwick was notified on November 20, 1962, by the Civil Service Commission that he had been relieved of his duties because of insubordination, the charge alleging that he did not report for regular duty with the Police Department from Monday evening, November 5, 1962, until Friday evening, November 9, 1962. Subsequently, the charges were amended to include conduct unbecoming an officer, violation of Section 4, Article 3, of the Civil Service Rules and Regulations (parking patrol car and leaving post of duty without being relieved, or without notifying a superior officer), and violation of Section 7, Article 3 (failure to pay debts).

Following a request by Warwick, the commission held a hearing, and, after completion of the testimony, found that the evidence was sufficient to sustain the charges made against appellant. He was thereupon discharged from the Malvern police force. In due time, Warwick appealed these findings to the Hot Spring County Circuit Court, which heard the case on the record taken before the commission, and also additional evidence which was offered before the court. At the conclusion of this hearing, the Circuit Court held that Warwick had been absent without leave a sufficient number of times to warrant disciplinary action, and found that the ruling of the Civil Service Commission should be affirmed. From the judgment so entered, appellant brings this appeal.

Let it first be stated that appeals from a Civil Service Commission are reviewed by the Circuit Court on the record presented before the commission and any additional competent evidence that may be offered. On appeals from the Circuit Court to this court, we review the entire record de novo, as in chancery cases. Campbell v. City of Hot Springs, 232 Ark. 878, 341 S. W. 2d 225; City of Little Rock v. Tucker, 234 Ark. 35, 350 S. W. 2d 531. Appellant argues that we can only concern ourselves with whether he was absent from duty without leave from the proper authorities a sufficient number of times to warrant disciplinary action, since that was the only finding made by the Circuit Court, i.e., the court made no specific findings affirming the commission on the other charges, and appellant apparently feels that the net result of the Circuit Court’s order is to find him innocent on these particular counts. From the cases just cited, it is obvious that appellant is in error in this assertion, as this court reviews the entire record de novo.

Actually, the abstract of the record is insufficient in that all proceedings and evidence taken before the commission have not been abstracted, and we would be justified in affirming the trial court on that basis. Appellant only abstracted the evidence relating to absence from duty without proper leave, but we think this evidence alone was sufficient to justify that tribunal in upholding the commission.

While the particular charges relative to failure to report for duty relate only to the period from November 5 to November 9, 1962, the record, reflects some twenty instances, commencing’ on August 1, and running until November 16, when appellant either did not report at all, or went home while on duty. An excuse, or reason,was given for absences on some of these occasions, but in by far the greater number of instances, no explanation is shown for the absence. Warwick contends that most of the absences were due to neck and back injuries that he testified had been sustained in October, 1960, while making an arrest, and which, he stated, continued to incapacitate him. During the specific November period here in question, appellant’s evidence reflects that his wife called the Police Department on Monday, November 5, and Tuesday, November 6, advising that her husband was sick and would not be at work (though this second call is disputed under the evidence). Admittedly, neither the chief, nor any other officer, was notified of appellant’s whereabouts on Wednesday, November 7, or Thursday, November 8. Warwick stated that he should have reported, “but I was on the bed and couldn’t get up.” Apparently, the department had been rather lenient with Warwick as to past absences, and the subsequent absences, wherein no notice was given to the Police Department that appellant did not intend to report for work, together with leaving’ his post, we think, justified disciplinary action. With reference to his leaving for three or four hours while on duty, appellant stated, “The reason I didn’t report in sometimes the chief wasn’t in and every hour I was off was on account of this injury. ’ ’

Testimony reflected that on one occasion Warwick reported that he had to go to the office of his physician in Malvern, Dr. White, for a treatment, but within five minutes, he was seen at the Barlow Hotel, drinking-coffee. There was testimony from one of the officers that, on another occasion, appellant left his police car (parking it at the station), and was gone from 2:30 A.M. until 5:00 A.M. without advising where he could be located. This was disputed by Warwick, but the court heard and saw these witnesses testify, and was in a better position to determine which parties were correctly relating the facts. Other alleged instances of neglect of duty appear in the transcript, but no good purpose would be served by detailing* them. Although, as stated, appellant contended that illness was responsible for his absences, it is noticeable that while six physicians are mentioned by Warwick as having examined or treated him, not one line of evidence was offered by any doctor (or any other person) to corroborate his testimony that he was prevented from working because of his physical condition. It is, of course, particularly essential that a police officer regularly and properly report his whereabouts, for the very nature of his duties requires that this be done. When murder, burglary, or other felony is committed, prompt pursuit and early investigation are necessary; efficient law enforcement demands timely and immediate action. This cannot be provided if officers, supposedly on duty, cannot be located.

The record also reflects that Warwick had permitted himself to become deeply involved in debt, even to the extent of finally borrowing money from a mail-order finance company in Omaha, Nebraska. One of the charges against appellant was violation of Article 3, Section 7, which provides that “Every member of the Police Department shall at all times pay their debts promptly. Failure to do so shall make a member subject to dismissal.” Of course, circumstances, over which an individual would have no control, could place one in debt, but, in the main, the bills owed by appellant did not appear to be due to the purchase of “necessities.”

All in all, a reading of the transcript clearly conveys the impression that appellant lacked interest in his employment, and we agree with the trial court that the findings of the commission should be upheld.

Affirmed.

       The Chief of Police complained that Warwick spent too much time at the Barlow Coffee Shop.

       Drs. White, Jordan, Murphy, Lester, McHaney and Thompson.

       Interest rates were described as “high.”

       He did, however, state that his reason for spending the “uniform allowance,” given by the department, for other than the allotted purpose, was that his wife had to go to a specialist in Little Rock.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Nelson v. State
    5128
    393 S. W. 2d 614
    Opinion Delivered September 13, 1965.
    No brief filed for Appellant.

      Bruce Bennett, Atty. General, By: Joe Bell, Asst. Atty. General, for appellee.
   Ed. F. MoFaddin, Associate Justice.

Appellant James S. Nelson was convicted of robbery (Ark. Stat. Ann. § 41-3106 et seq. [Repl. ■ 1964]) and sentenced to imprisonment. From that conviction there is this appeal. The motion for new trial contains five assignments which may be summarized into three points now to be discussed.

I. Sufficiency Of The Evidence., This issue is presented by Assignments 1 to 3, inclusive; and there was ample evidence to support the verdict. There is no necessity to detail the evidence, in view of our holding on the third point in this Opinion.

II. Time To Prepare For Trial. The information was filed against the appellant on March 15, 1961, and he was arrested that day and admitted to bail. Several attorneys appeared for defendant, and trial of the ease was continued by consent from time to time until June 15, 1964. Thus, the appellant had more than three years to prepare for trial and cannot now be heard to complain that his finally chosen counsel was “rushed into a trial.”

III. The Voluntariness Of The Confession. This is the point that has given us most serious concern. The trial of the appellant in the Circuit Court was on June 15, 1964, and the Circuit Court proceeded under rules that had been held proper by the Supreme Court of the United States in Stein v. New York, 346 U. S. 156, 97 L. ed. 1522, 73 S. Ct. 1077. The Circuit Court, in line with our holdings, submitted to the jury the issue of the voluntariness of the confession along with the issue of guilt or innocence. But on June 22, 1964, the United States Supreme Court overruled its own holding in the Stein case, and held that the issue of the voluntariness of the confession could not be initially submitted to the jury along with the issue of guilt or innocence. This about-face holding of the United States Supreme Court was in the case of Jackson v. Denno, 378 U. S. 368, 12 L. ed. 2d 908, 84 S. Ct. 1774, 1 A. L. R. 3d 1205.

Naturally, the holding in Jackson v. Denno was not anticipated by the Trial Court in the case at bar; and yet, we must now follow the United States Supreme Court holding in the case of Jackson v. Denno. The result is, that in cases tiled after Jackson v. Denno there must be a finding that the confession is voluntary before the guilt or innocence of the defendant is submitted to the jury trying such issue. But in Jackson v. Denno the United States Supreme Court stated that in a ease tried before June 22, 1964 the issue of the voluntariness of the confession could be subsequently determined.

The Attorney General in his splendid brief in this Court has correctly asked that this cause be remanded for determination of the voluntariness of the confession in line with the holding of the United States Supreme Court in Jackson v. Denno. The Attorney General says:

“Even though there is sufficient evidence to sustain the verdict, defendant is entitled to a hearing in the Circuit Court of Pulaski County, Criminal Division, to determine whether or not his confession was voluntary. If it is found that the confession was voluntary, the decision below should be affirmed. If the confession is found to be involuntary, . . . the defendant [should] be given a new trial to determine his guilt or innocence, without evidence of the admissions being considered.”

Accordingly, we remand this cause to the Trial Court to reinvest it with jurisdiction to proceed in a manner not inconsistent with this Opinion.

       Some of our cases on such procedure are listed in the case of Nolan and Guthrie v. State, 205 Ark. 103, 167 S. W. 2d 503.

       The Majority Opinion in Jackson v. Denno had this language: “It is both practical and desirable that in cases to be tried hereafter a proper determination of voluntariness be made prior to the admission of the confession to the jury which is adjudicating guilt or innocence. But as to Jackson, who had already been convicted and now seeks collateral relief, we cannot say that the Constitution requires a new trial if in a soundly conducted collateral proceeding, the confession which was admitted at the trial is fairly determined to be voluntary.” For a later case involving the holding in Jackson v. Denno, see Boles v. Stevenson, 379 U. S. 43, L. Ed. 2d 109, 85 S. Ct. 174. For some comments on Jackson v. Denno, see: 51 ABA Journal (Feb. 1965) p. 173; 18 Vanderbilt Law Review 237; and 78 Harvard Law Review 211.

       The Majority Opinion in Jackson v. Denno had this language: “It does not follow, however, that Jackson is automatically entitled to a complete new trial including a retrial of the issue of guilt or innocence. Jackson’s position before the District Court, and here, is that the issue of his confession should not have been decided by the convicting jury but should have been determined in a proceeding separate and apart from the body trying guilt or innocence. So far we agree and hold that he is now entitled to such a hearing in the state court. But if at the conclusion of such an evidentiary hearing in the state court on the coercion issue, it is determined that Jackson’s confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for Jackson has already been tried by a jury with the confession placed before it and has been found guilty. True, the jury in the first trial was permitted to deal with the issue, of voluntariness and we do not know whether the conviction rested upon the confession; but if it did, there is no constitutional prejudice to Jackson from the New York procedure if the confession is now properly found to be voluntary and therefore admissible. If the jury relied upon it, it was entitled to do so. Of course, if the state court, at an evidentiary hearing, redetermines the facts and decides that Jackson’s confession was involuntary, there must be a new trial on guilt or innocence without the confession’s being admitted in evidence.”


text:
    Nolen v. State
    5138
    393 S. W. 2d 765
    Opinion Delivered September 13, 1965.
    [Rehearing denied October 11, 1965.]

      Holt, Park & Holt, for appellant.

      Bruce Bennett, Atty. General, By: Beryl F. Anthony, Jr., Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

Appellant, Fred Nolen, together with two accomplices was indicted for robbing Robert Fox on May 11, 1963. The accomplices were Irvin Steele (alias Irvin Perry) and Wayne Ogles. Steele and Ogles pleaded guilty soon after the robbery occurred. Steele was given twenty one years in the penitentiary and Ogles ivas given a three year suspended sentence. Appellant pleaded not guilty, was tried and convicted on December 15, 1964, and was sentenced to five years in the penitentiary.

Before examining appellant’s contentions for a reversal we deem it expedient to set forth á brief description of some of the parties involved, and also a summary of pertinent facts.

Parties. Fred Nolen (appellant) is forty four years old, is a very substantial farmer near Paragould, he has a wife and family, and has never before been convicted of any crime. Irvin Steele (alias Irvin Perry) admits he has previously been convicted of felonies five or six times, and his wife is the bartender at Wink’s Tavern in Paragould. Wayne Ogles was seventeen years of age in 1963; he had known Steele for about three years during which time they had been close associates; he admits they had been together on four or five “jobs”; and, he admits he has pleaded guilty to four or five criminal charges but has never been punished. Robert Fox (who was robbed) is a young man who lives with his parents a few miles from Paragould. He admits to having been convicted of such offenses as drunkenness, driving while drunk, disturbing the peace and fighting in Arkansas, Texas, Iowa, Arizona, Idaho and Missouri; and, he admits to having been convicted three times since he was robbed on May 11, 1963.

Summary of Facts. The following facts are not in dispute. About 8 p.m. appellant left his farm and drove unaccompanied to Wink’s Tavern in Paragould. Here appellant joined Pox and Steele and they all drank some beer. Appellant was not acquainted with Pox but did know his father. Later that evening Pox stated he would have to hire a taxi to take him home. Steele offered to take bim home but Pox refused his offer and then accepted appellant’s offer to take him home. Around midnight the three left the Tavern, and Pox and appellant started home in appellant’s car. Each had purchased two cases of beer which, they took with them. When appellant and Pox were a short distance out of Paragould they stopped to drink some beer. Each say they stopped at the suggestion of the other. Presently a man, recogiiized by Pox to be Steele, with a stocking over his face and with the aid of a toy gun, forced appellant and Pox to give him all the money they had. After the robbery they proceeded homeward, but just before they reached appellant’s home Pox accused appellant of framing the robbery with Steele. Then they drove on to Pox’s home grabbed the key to appellant’s car, ran toward the house and yelled for his father to bring out the shotgun. A fight ensued, and appellant was arrested for fighting and having too much beer in his car.

A careful reading of the entire record and a study of the pertinent decisions of this court presents a close and troublesome question regarding* appellant’s guilt, but we have reached the conclusion that there is substantial, competent evidence to support the verdict of the jury.

The basic statute here involved is Ark. Stat. Ann. § 43-2116 (Repl. 1964) which, in pertinent part reads:

4‘Testimony of accomplice: A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.”

Steele testified that he and appellant conspired to rob Pox. He further testified that after the robbery the money which was taken from appellant was returned to appellant’s wife. This was not denied by her. Ogles’ testimony was to the same effect. Ogles testified that he sat in the car while Steele went down the road a short distance and robbed Pox. He further testified that Steele gave him part of the money and that he then went with Steele to appellant’s house where Steele left the money he had taken from appellant. However, under the statute just quoted the above testimony alone is insufficient to sustain the verdict. It must be corroborated by other independent facts and circumstances tending to prove appellant entered into a plan with Steele to rob Pox.

In the case of Thompson v. State, 207 Ark. 680, 182 S. W. 2d 386, this Court, in commenting on the above mentioned statute and quoting from Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304 had this to say:

4 4 The corroborating testimony required by this statute must be of a substantial character which, of itself and independently of the statement of the accomplice, tends in some degree to connect the defendant with the commission of the crime, although such evidence need not in itself be sufficient to support a conviction.”

There is in the record other independent evidence which, we think, is sufficient to sustain the jury’s verdict.

Lola Dill Mitchum testified that shortly before the robbery took place she sat at the same table with appellant and Steele in Wink’s Tavern and heard them discuss a plan to rob Fox.

Q. “Knew him (Steele) well enough, he and Fred let you sit (at) the table while they planned the robbery?
■ A. “Yes, sir.”
Q. ‘ ‘ Did this defendant and Steele have a discussion about how they were going to perpetrate the robbery?
A. “Said, meet them out on the road as they went home.
Q. “Who?
A. “For Steele to meet Fox and Nolan on the road as they were going home.
Q. “Mr. Nolan was going to take Fox home?
A. “They were riding together, my understanding. ’ ’

Later on, after the robbery, the same witness testified about a conversation she heard between appellant and Steele:

Q. “Who?
A. “Fred Nolan and Irving Steele.
Q. “I see.
A. “About the $135.00, because he said, ‘It will take what I got from Robert Fox to pay an attorney to keep from winding up in jail.’
Q. “Any mention in the conversation about how much money Mr. Fox was robbed of?
A. “Yes. $170.00.
Q. “$170.00 you say, Fred Nolan and Irving Steele were arguing among themselves, about how much money he got?
A. “Yes.”

Also, Fox testified appellant insisted on stopping at the place where the robbery occurred. This testimony .was disputed by appellant, but the jury had a right, of course, to choose which one to believe. The fact that appellant’s wife did not deny she received the money from Steele was a circumstance which the jury had a right to consider.

As previously pointed out this is a close, difficult case, but in cases of this nature we have recognized that much latitude is sometimes necessary in the introduction of testimony in order to prove conspiracy.

In Hearne v. State, 121 Ark. 460, 181 S. W. 291, the following language is found on page 472:

“Conspiracies are often difficult to prove by direct testimony and rarely can any express undérstanding or agreement be shown, and the law does not require that it shall be. Large latitude is allowed, necessarily, in proof of a conspiracy, and the jury should be permitted to have before them all the facts which will enable them to come to a correct conclusion. Much discretion is left to the trial court in the admission of testimony tending to establish the fact and if all the evidence shows that a conspiracy actually existed, it is not material, whether the conspiracy is established before or after the detailing in evidence of the acts and declarations of the conspirators. Easter v. State, 96 Ark. 629, 132 S. W. 924; Parker v. State, 98 Ark. 575; Chapline v. State, 77 Ark. 444.”

Finding no error the judgment is affirmed.

Holt, J., not participating.


text:
    Williams v. State
    5139
    393 S. W. 2d 618
    Opinion Delivered September 13, 1965.

      Moore & Webber, for appellant.

      Bruce Bennett, Atty. General, By: Beryl Anthony, Jr., Asst. Atty. Gen., for appellee.
   Sam Robinson, Associate Justice.

The appellant was convicted on the charge of burglary. On appeal she contends, first, that the Court erred in permitting-a certain hat to be introduced in evidence; and, second, that there is no substantial evidence that appellant entered Eula’s Grocery and Market, where the burglary is alleged to have occurred, with the intention of committing larceny.

Ark. Stat. Ann. § 41-1001 (Repl. 1964) provides: ‘ ‘ Burglary is the unlawful breaking or entering a house, tenement, railroad car, automobile, airplane, or any other building, although not specially named herein, boat, vessel or water craft, by day or night, with the intent to commit any felony or larceny.”

Under the provisions of the foregoing statute, if the appellant entered the store with the intention of commit-,, ting larceny, she is guilty of the crime of burglary.

About 11 A.M. on the morning the crime is alleged to have been committed, the appellant, accompanied by a mail dressed in dark clothes and wearing a small-brim hat, went into a restaurant near Eula’s Grocery and Market and ordered breakfast. A short time later, a man wearing dark clothes and a small-brim hat went into Eula’s Grocery and Market and asked for baby food. When told that the baby food was located at the back of the store, he stated that he could not read and, therefore, needed help in getting it. On the representation that he could not read, Mrs. Cook, the clerk in the store and the only person in the store at the time, went to the back thereof with the man to help him select the baby food.

Mr. Harold Porterfield, a State Policeman, who was not on duty at the time, but was preparing to go squirrel hunting, went into the store. He saw the appellant lying on her stomach on the floor of the store with something white in her hand (this later proved to be a check). He immediately realized that she was in the act of committing a larceny and ordered her to stand up and put up her hands. Thereupon, the man in the back of the store, supposedly selecting baby food, attempted to run over Porterfield. The policeman tried to hold both the man and woman, but the man got away after losing his hat.

The hat was similar to the one worn by the man who had breakfast with appellant that morning, and was admissible in evidence as a circumstance going to prove that he was acting in concert with appellant when he inveigled Mrs. Cook to the back of the store in order to give appellant an opportunity to enter the store and commit a larceny.

When Mrs. Cook came back to the front of the store, she saw appellant drop something into the wastebasket; it was $27.00 and a check for $8.00 which had been taken from Mrs. Cook’s purse that was lying under the counter near where the appellant was lying on her stomach when first seen by Officer Porterfield.

The evidence is substantial to the effect that appellant entered the store with the intention to commit larceny, and is, therefore, guilty of burglary.

Affirmed.


author: Jim: Johnson, Associate Justice.

text:
    Coger v. City of Fayetteville
    5146
    393 S. W. 2d 622
    Opinion Delivered September 13, 1965.

      Rex W. Perkins and James E. Evans, for appellant.

      Hugh R. Kincaid, for appellee.
   Jim: Johnson, Associate Justice.

This appeal is from a conviction for disturbing the peace and assault and battery.

Appellant Richard Coger was arrested on December 4, 1964, on a warrant issued by the Fayetteville municipal clerk on an affidavit for warrant of arrest made by a private individual. After making bond, appellant appeared in municipal court on January 7, 1965. He moved that the prosecuting witness be required to post a cost bond [under Ark. Stat. Ann. § 44-301 (Repl. 1964)], whereupon the city attorney of appellee City of Fayetteville, after asking leave of court, filed an information against appellant on the same charges. The municipal court then proceeded to trial and appellant, after pleading not guilty, was convicted of the misdemeanors. On appeal to Washington Circuit Court, on March 9, 1965 appellant again moved to require a bond of the prosecuting witness, to quash the information and warrant and to quash the jury panel. These motions were denied. The circuit court jury found appellant guilty of disturbing the peace and assault and battery, from judgment on which comes this appeal.

Appellant urges for reversal that the court erred in failing to grant his motion to quash the warrant and' information.

Arkansas Stat. Ann. § 44-301 (Eepl. 1964) provides: “In all prosecutions and cases less than felonies in courts of Justices of the Peace and in other inferior Courts, the prosecutor, or some person for him, shall enter into bond, with good and sufficient surety, for the payment of all costs which may accrue in said prosecution.” This court in Payne v. State, 124 Ark. 20, 186 S. W. 612, held the terms of this statute tó be mandatory. However in Thebo v. State, 161 Ark. 619, 256 S. W. 381, the word “prosecutor” was in effect held to mean the prosecuting or complaining witness and was not applicable to a sheriff. Clearly the statute has no application to law enforcement officials in the performance of their duties; in fact, § 44-305 goes even further and provides that the Justice may permit a private individual who has been maltreated to prosecute without giving the bond. Obviously the evil the statute seeks to reach is capricious prosecution by persons unlearned or unskilled in the law or its enforcement. Thus the municipal court’s error in failing to require a cost bond (in the absence of a finding of maltreatment suffered by the affiant so as to constitute the exception provided for in § 44-305) was cured by the filing of the information by the city attorney prior to trial.

It is undisputed that appellant was actually before the court on the earlier warrant when the information was filed immediately prior to the municipal court trial at which time appellant was informed of the state charges against him. The issuance of an additional warrant at that time to compel appellant’s presence to answer the charges against him when he was at the moment present for the purpose of answering the identical charges contained in the information would have been a redundant gesture.

We have held repeatedly that a defective warrant, and even the absence of a warrant, is no basis for overturning a conviction. Perkins v. City of Little Rock, 232 Ark. 739, 339 S. W. 2d 859. See also Thebo v. State, supra; Blakely v. State, 194 Ark. 276, 108 S. W. 2d 477; and Mayfield v. State, 160 Ark. 474, 254 S. W. 841.

Appellant’s principal point urged for reversal is that the circuit court erred in failing to strike the jury panel on appellant’s motion.

When trial in circuit court commenced on March 9, 1965, appellant determined on voir dire that none of the jury panel had registered under the voter registration procedures prescribed by Amendment 51. Appellant moved to quash the entire panel for the reason that they were not at that time qualified electors under the laws of the State of Arkansas and in particular Amendment 51 to the Constitution, which motion was overruled by the court.

Arkansas law provides that jurors be electors and formerly possession of a current poll tax receipt was requisite to be a qualified elector. In 1964 the voters of Arkansas adopted Constitutional Amendment 51, “Arkansas Amendment for Voter Registration Without Poll Tax Payment. ’ ’ Amendment 51 became effective January 1,1965, with the proviso that persons, who were qualified electors as of December 31,1964, should be permitted to vote in any elections held before March 1, 1965. Amendment 51 was adopted November 3, 1964, and the drafters obviously contemplated that voter registration machinery would be in operation by March 1, 1965. Such was not the case. Litigation over several aspects of the amendment had to be terminated before registration could begin or the registration forms even be printed. See Faubus v. Fields, 239 Ark. 241, 388 S. W. 2d 558. When it became apparent that this pending litigation would prevent registration of voters for some months, the legislature, then in session, passed various acts such as Act 187 and Act 126 to bridge this gap. Act 187 on special elections is not pertinent or under consideration here; Act 126 is. This act, entitled, “An Act to provide interim qualifications for Arkansas citizens to be qualified jurors between the dates of March 1, 1965, and October 1, 1965, . . ,” provides simply that all persons who are otherwise qualified under applicable statutes to be grand or petit jurors and who have paid a poll tax between October 1,1963 and October 1,1965, are declared to be eligible grand or, petit jurors.

Appellant contends that the legislature is without power to change the qualifications for electors set forth in Amendment 51, and thus this jury panel ceased to. be qualified as such after March 1, 1965, although they had been qualified at the beginning of the court term prior to March 1st; in essence, that such legislation is clearly unconstitutional.

Amendment 51 does not spell out qualifications for jurors, nor have we been directed to any part of the Arkansas Constitution that does. Qualifications of jurors are regulated by statute. Examination of the relevant statutes and Act 126 convinces us that Act 126 of 1965 is valid legislation and an effective means of ensuring the continuity of justice and our precious jury system during this interim period.

Affirmed.


text:
    Gober v. Baker.
    5-3621
    393 S. W. 2d 620
    Opinion delivered September 13, 1965.

      W. K. Grubbs, Sr., for appellant.

      Robert M. Smith, for appellee.
   Frank Holt, Associate Justice.

This is an appeal from a probate court order allowing the claim of appellee against the estate of the decedent, Lamar Grisham. The appellants are co-executors of the estate. Appellee filed his claim against the estate for: “Balance Due On Note Covering Merchandise Purchased By Lamar Grisham From Joe B. Baker.

Balance on note ............................................................$3,117.98

Interest accumulated to June ’62.................. 2,548.64

Total of claim................................................................$5,666.62”. The claim was seasonably filed within the statutory period of six months. Ark. Stat. Ann. § 62-2601 (Supp. 1963). The executors refused to pay the claim and when the matter was set for hearing the court directed the claimant to amend his claim. No note was filed with the claim. The claimant then filed his amended claim which indicates that according- to an audit by ¥m. C. Clement, a Certified Public Accountant, as of June 24, 1953 there was a balance of $5,742.98 due from decedent to appellee on an open account instead of a note. The total amount of the amended claim was $5,507.77 after applying credits and interest. This amendment was filed after the expiration of the six months allowed for filing of claims.

The appellants responded stating the original claim was on a note which had long since been paid and that the amendment set up a neAv claim on an open account and being a changed and different claim was barred since it AA^as filed after the six months time allowed for the filing of claims against the estate and, further, pleaded the three-year statute of limitation.

The court held that the amended claim did not state a neAv cause of action but related back to the original filing of the claim and AATas not barred by the statute of non-claim nor the three-year statute of limitation. 'The court found that according to the competent evidence, including the records of the decedent, there remained due to the appellee the sum of $4,547.23 as principal and interest.

On appeal appellants contend that the amended claim constituted a neAv cause of action and was Barred by the statute of nonclaim. Ark. Stat. Ann. § 62-2601. Appellants are correct if the amended claim is a new cause of action. In support of their position appellants rely upon Shelton v. Harris, 225 Ark. 855, 286 S. W. 2d 20. We do not consider this case to be analogous to the case at bar for in the Shelton case we said the amendment asserted a cause of action upon a separate and different contract. In the case at bar the original claim and the amended claim clearly arose out of the same transactions and only one contract was involved.

In the instant case the decedent purchased from appellee a butane gas business in 1948 and in 1952 completed payment of the purchase price which was evidenced by certain notes. The claim in question is predicated upon the purchase' of various items of merchandise by decedent not included in the original purchase price. Mr. Clement, the CPA, testified that as of June 24, 1953 the decedent owed appellee $5,742.98 and that the decedent assisted him in making an inventory and audit of decedent’s and appellee’s transactions. Furthermore, the decedent appeared to be pleased with the audit and paid one-half the cost as did appellee. It is significant that the $3,117.98 principal balance allegedly due in the original claim was apparently determined by deducting $2,625.00 of undisputed cash credits from the $5,742.98 balance balance due as reflected by the June 1953 audit.

In the case at bar the amended claim was not a new cause of action but was merely a clarification of the original claim which contained allegations upon which the amended claim was predicated. Therefore, it related back to the original filing of the claim. Bridgman v. Drilling, 218 Ark. 772, 238 S. W. 2d 645; 34 C.J.S. Executors and Administrators § 417 f.

Appellants’ assertion that the claim is barred by the three-year statute of limitation is of no avail since a payment was made on the account within three years of the filing of the original claim. ,

Appellants also urge that there is no competent evidence to prove either the original or the amended claim. There was ample competent proof submitted by the claimant, some of which consisted of the business ledger sheet of the decedent. Such records, made in the regular course of his business, are admissible evidence and not in violation of the Constitution of Arkansas, Schedule, § 2, known as “the dead man’s statute”. Pierce v. Pierce, 236 Ark. 412, 366 S. W. 2d 276. In addition to decedent’s records and the contract of purchase which provides for the payment of interest, there was the testimony of Mr. Clement, the CPA. Mr. G-obér. the executor and decedent’s bookkeeper, and Mrs. Baker, appellee’s wife. The testimony of these individuals was admissible since none of them were parties to the transactions involved in the disputed claim. Mabry v. Corley, 236 Ark. 306, 365 S. W. 2d 711.

Certainly we cannot say that the findings of the trial court are against the preponderance of the evidence. Affirmed.