text:
    McMillan v. State.
    4894
    314 S. W. 2d 483
    Opinion delivered June 23, 1958.

      George E. Pike, Peyton D. Moncrief, Virgil Roach Moncrief and John W. Moncrief, for appellant.

      Bruce Bennett, Atty. General, and Clyde Calliotte, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Woodrow McMillan, was charged with murder in the first degree, and upon trial, was convicted of second degree murder and given a sentence of twelve years. The killing occurred shortly after midnight, March 3, 1957, and McMillan pleaded self defense. Prom such conviction, he brings this appeal.

According to the evidence, Carl McCown and wife operated a cafe located near the court square in DeWitt. McCown and appellant were in the cafe with others around 10 p. m., and McCown suggested that the group go to his home for a dice game. McMillan went along, and in the game lost what money he had, gave McCown a check for $10, and also lost that. After the game closed, the group returned to the cafe, and McCown parked his car at the back of the establishment. Subsequently, he went to his car, and McMillan later went and sat in the car with him. An argument ensued relative to the check which McMillan had given McCown, it being contended by appellant that the former had told him he would return the check. Appellant had in his possession a 22 calibre pistol. The parties subsequently got out of the car, and McCown started toward McMillan, either to strike, him, or to get the gun. McCown knocked the first shot upward but McMillan continued to fire until the gun snapped. The magazine held nine cartridges, and it later developed all were fired except one. McCown ran into the street, and fell dead, being hit by three bullets.

Numerous assignments of error are set forth in the motion for new trial, the first three questioning the sufficiency of the evidence. Proof on the part of the State showed that appellant went to his pickup truck and got the pistol before going to the “crap” game. On returning to the cafe, McMillan talked to different ones there, and then went out to McCown’s car. According to the State’s evidence, McMillan fired the first shot from the back seat of the automobile, and one Chester Edmond-son testified as follows:

“I didn’t pay too much attention as to who was in the car until I heard McCown say, put that gun down.

Q. Was there any loud talking?

A. No, they wasn’t talking very loud.

Q. Now, when you saw McCown get out of the car was there anything in his hand?

A. No, sir, I didn’t see anything.

Q. If he had of had anything in his hand could you have seen it?,

A.. Yes, sir, if it was very big.

Q. Then you could see his hands?

A. Yes, sir.

Q. Did he have any weapon in his hand?

A. I didn’t see one.

Q. Now, after this shooting had taken place and after McCown started staggering away from McMillan, what did Woodie do?

A. He shot three or four more times.”

The deceased’s wife, Mildred McCown, testified:

“I went on about my work, and I heard something and I thought it was a firecracker at first so I went to the front door and looked, and when I went to the door, Woodie had done got ont of the back seat and the door was open, and Lewis Carl got out on the same side that Woodie got out on, and so Lewis Carl started toward Woodie and Woodie shot, and Lewis Carl hit his hand and knocked his gun up and the shot went up, and Woodie shot several times at Lewis Carl, and Lewis Carl had turned after he shot him with the first shots and he was running down the road, and I went to Woodie and tried to get the gun and Woodie just kept shooting Lewis Carl, and Lewis Carl fell right on his face, and he was dead by the time I got to him. ’ ’

Charles Tiner, Chief of Police at DeWitt, stated:

“I went back to the police car, and I asked Woodie did he shoot Lewis, and he said yes, and I asked him why and he said he was tired of him running over him, and I asked him did he mean to kill him, and he said yes, he was tired of him running over him.”

Further testimony on the part of the State was to the effect that McCown was unarmed. The above enumerated testimony, if believed by the jury, was certainly sufficient to sustain a conviction for second degree murder. As stated in West v. State, 196 Ark. 763, 120 S. W. 2d 26:

“There is ample evidence to support the finding of the jury. Under the settled rules of practice the jury is the judge of the credibility of the witnesses and the weight to be given to their testimony, and it is also a well-settled rule that the evidence admitted at the trial will, on appeal, be viewed in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury, it will be sustained. ’ ’

Numerous other cases denote the same holding.

By assignment No. 4, appellant contends that it was error for the court to fail to sustain his objection to a statement made by the prosecuting attorney during the State’s closing argument, and that such statement was inflammatory and prejudicial to him. The statement objected to was “. . . if you turn him loose, then let him go out and kill someone else for a $10 worthless check . . . ”. Following this remark and an exchange of comment between the prosecutor and appellant’s counsel, in which a derogatory remark, unconnected with the evidence, was made by defense counsel concerning the deceased, the court admonished the jury, stating:

“These statements are improper to make before a jury as they are not any part of this law suit and the jury is not to consider them. The Prosecuting Attorney has a right to express his opinion in the argument of this case as does the attorney for the defendant, hut the jury is to try this case on the law and the testimony and not on the argument of counsel.”

In Adams v. State, 176 Ark. 916, 5 S. W. 2d 946, this Court said:

“This Court will always reverse where counsel go beyond the record to state facts that are prejudicial to the opposite party unless the trial court, by its ruling, has removed the prejudice * * * hut this court does not reverse for the mere expression of opinion of counsel in their argument before juries unless so flagrant as to arouse passion and prejudice, made for that purpose, and necessarily having that effect. * # *”

See also Tillman v. State, 228 Ark. 433, 307 S. W. 2d 886.

Several assignments of error deal with the court’s refusal to sustain objections to the testimony of Bussell McCollum, Coroner of Arkansas County. McCollum’s testimony dealt with statements made to him by appellant a short time after the killing. We do not agree that this was error. As stated in Dearen v. State, 177 Ark. 448, 9 S. W. 2d 30:

“* * * It is always permissible to prove declarations against a person charged with an offense, if his-declarations and admissions tend to show in any way his connection with the crime charged, or tend to prove his guilt. * # *”

A long line of Arkansas cases hold likewise. According to the evidence, the statements made by appellant to Mc-Collum were voluntarily made, and in fact, it is not contended otherwise, except that appellant testified he was nervous and upset at the time the questions were asked. Appellant objected to each question propounded to the coroner and answer given, contending that Mc-Collum was actually conducting an inquest, and had not complied with the statute governing such hearings. It is specifically contended that the statute was not complied with in the following respects: no jury was summonsed as required by Sec. 42-302, Ark. Stats. (1947) Anno., and the testimony was not reduced to writing as required by Sec. 42-307. Let it first be said that the interrogation of appellant by the coroner does not reach the dignity of a formal hearing. According to appellant’s own testimony, he was not sworn, and there was no semblance of a “hearing” as the word is commonly used. In other words, no inquest was held. There was no occasion for a hearing, since appellant freely admitted the killing. It is true that certain declarations against interest were made by appellant during the questioning, but, as stated, the evidence reflects these statements were voluntarily made. Appellant also contends that he was not warned that anything he might say could be used against him. While it is preferable that the accused be so advised, the failure to do so does not invalidate a confession. The situation here is analogous to the situation in the early case of Wilson v. United States, (which was originally tried in the Western District of Arkansas) found in 162 U. S. 613, 16 S.Ct. 895, 40 L. Ed. 1090. There, Chief Justice Puller, speaking for the Court, said:

“In short, the true test of admissibility is that the confession is made freely, voluntarily and without compulsion or inducement of any sort.

The same rule that the confession must be voluntary is applied to cases where the accused has been examined before a magistrate, in the course of which examination the confession is made, * * *.

* * # -where the accused is sworn, any confession he may make is deprived of its voluntary character, though there is a contrariety of opinion on this point. * * * The fact that he is in custody * * * does not necessarily render his statement involuntary, * * *. And it is laid down that it is not essential to the admissibility of a confession that it should appear that the person was warned that what he said would be used against him, but on the contrary, if the confession was voluntary, it is sufficient though it appear that he was not so warned. * * *

In the case at bar, defendant was not put under oath, and made no objection to answering the questions propounded. The commissioner testified that the statement was made freely and voluntarily, and no evidence to the contrary was adduced. * * *”

There was no error in admitting the testimony of the coroner.

It is next contended the court erred in giving certain instructions and refusing to give others requested by appellant. We have examined all the instructions, offered, refused, and given, and we find no error committed by the court as against the objections made.

Appellant’s main argument for reversal is based upon remarks made by the trial court in the presence of the jury concerning certain evidence offered by appellant with reference to an infected or diseased ear, with which he allegedly was afflicted, and it is further contended that the court erred in refusing to permit several witnesses to testify relative to such physical condition. We will first discuss the latter contention. Five witnesses had previously testified regarding the condition of McMillan’s ear, and appellant offered in evidence a notice from the Veteran’s Hospital to appellant, directing that McMillan report back for further examination. The court correctly excluded this exhibit, as it was not in proper form for introduction, and then announced:

“All right, but let me state further, Mr. Moncrief, that the Court does not think that it is necessary to introduce any further testimony on the ear matter and that the testimony has just been cumulating in this case, so the Court will not allow anymore testimony pertaining to the ear matter.

Mr. Moncrief: Note the defendant’s exceptions. If the court please, since the jury are laymen and might not understand the use of the word cumulating, I wish you would explain it to them.

The Court: That means the same kind of testimony just piling up witness after witness about the same thing.

Mr. Moncrief: If I understand the court correctly, the trial court has a right to say you should or should not call but so many witnesses to testify about one certain thing.

The Court: Yes, 'that is correct. It is just like if you were trying to prove someone’s reputation. You might have a thousand witnesses to testify as to their reputation, but who would want to sit here and hear a thousand witnesses testify about the same thing, so the courts hold that a trial court has a right to make a reasonable limit on those kind of witnesses so that is the reason for my actions.”

Appellant contends that this was error, but we do not agree. In Sheppard v. State, 120 Ark. 160, 179 S. W. 168, Justice Kirby, speaking for the court, said:

“It is next contended that the court erred in refusing to allow the ten other witnesses produced to testify in support of the alibi. Their testimony would have been cumulative, and it is not disclosed that any of said witnesses had any special or peculiar knowledge that would have tended more strongly to convince the jury of the truth of their statements of the whereabouts of appellant than that already given by the numerous witnesses who had testified, nor that any of them were of such standing that their statements would have carried more weight than that of the others, and the court did not err in refusing to permit them to testify. It is within the sound, judicial discretion of the trial court to limit the number of witnesses permitted to testify about a particular fact and to decide where and when the introduction of cumulative testimony shall stop and, while in capital cases this discretion should be cautiously exercised, it will not be controlled unless it appears to have been manifestly abused.”

We think it was sufficiently established that appellant had been suffering with some sort of ear infection, and additional testimony upon the subject would have been entirely cumulative.

We come now to a discussion of appellant’s contention concerning the remarks by the court. The first witness offered by the defendant, John Varnadore, was asked the question:

“Do you remember what his physical condition was with reference to any ailment?

Mr. Lee: I object to this, he is no doctor.

The Court: I don’t see that it has anything to do with it.

Mr. Moncrief: It has a great deal to do with it. We have heard as to the relative sizes of these men so we want to show the physical condition of these men, or of Mr. McMillan, that is. ’ ’

The court permitted the question, and subsequently in the examination, another question was asked relative to the ear. Upon objection by the State, the court invited appellant’s counsel to explain his theory.

“Mr. Moncrief: Just this, if a man is assaulted and he is a normal person, that person might be able to withstand an assault or blow, but if he is a person that is not normal and has a dangerous condition about him that is susceptible to a blow that would either kill him or cause him great bodily injury, he would certainly have a right to defend himself against any assault that he, in good faith, believes would do him great bodily injury, and he, the defendant, would certainly have the right to protect himself under those circumstances, as we expect to prove in this instance. If a man is not able to withstand blows, he would fear blows if he was in such a condition that would cause great injury to him. The defendant’s case has to be viewed from the standpoint from what his belief is so long as he acts as a reasonable person would under the same similar conditions.

The Court: I understand what you are trying to prove, but you are going too much in detail about his conditions. We are not trying a personal injury suit. I don’t mind you laying the foundation what you are trying to prove, but you are going in too much detail.”

McMillan testified he had had trouble with his ear for a year or two before the killing, and that it had constantly bothered him; that he had received treatment for the ear condition from different doctors in DeWitt, and had gone to the Veteran’s Hospital in Little Rock, but had not been able to obtain relief. He testified his condition grew worse, and the court remarked:

“Let’s not go into much detail about that, Mr. Moncrief. This is not a personal injury suit, and I can’t see where it would be competent in a criminal suit, and I don’t think, by going into all of the details, that it would shed any light on the case.

Mr. Moncrief: Note the defendant’s exceptions.

Q. If your Honor please, I would like to ask this question, whether or not, after an x-ray examination was done, and what were the results to him and whether or not he would withstand a blow if the blow happened to fall on the left side of his head. We want to show that he did undergo this operation and that the bone was affected in the area of the left ear and that it left a condition that he believed he couldn’t withstand a blow that might happen to fall on the area of the left side of the head. * * *

The Conrt: I will let the record show that this ear was in a condition, bnt I cannot see that it wonld be competent, you can save your exceptions if you want to. You have shown what you wanted to.

Mr. Moncrief: I cannot state it in detail as to the removal of the bone in the ear and the fact that skin was taken from one part of his body and put on a part of his ear in order to protect the bone.

The Court: You have certainly got it in the record now.

Mr. Moncrief: If the Court please, I would like to go in chambers and make the available proof. ¥e are asking that the available proof be made in the absence of the Jury if it is not allowed to make the available proof before the Jury.

The Court: Overruled, save your exceptions.

Mr. Moncrief: Note the defendant’s exceptions. May I ask this, if the Court please, that if he had a fear that a serious blow to his ear or the area of the ear or the head might likely result in a great bodily injury to him or result fatal to him.

The Court: I don’t think that would be competent, Mr. Moncrief.”

It would appear that counsel’s contention was conveyed to the jury, but this, of course, did not constitute evidence. In several instances, questions relating to the ear were properly ruled inadmissible; for instance, Lem Burton was asked the question: “In going fishing and hunting with McMillan, was he more careful than you in dodging limbs and bushes ? ’ ’ Any answer, of course, by the witness, would have been pure opinion. "We are of the view however, that competent evidence as to appellant’s physical condition was proper and relevant. He was entitled to show his physical, as well as mental, condition at the time of the offense charged. As stated in Sage v. State, 91 Indiana 141:

“Independently of any question of insanity, the defendant in a criminal cause has the right to have his general physical as well as his mental condition at the time of the commission of the supposed crime explained to the jury, so as to put them in possession of all the facts connected with the transaction, and the better to enable them to judge of its character.”

Also, in Rector v. State, 11 Ala. App. 333, 66 Southern 857:

“If the deceased had in fact recently been ill, it was a circumstance the jury could look to, in connection with all the other evidence in the case, in determining whether or not the deceased assaulted the defendant, and, if so, in determining the character and nature of the assault.”

Such a conclusion is logical, for it might well be that one physically incapacitated would hesitate far longer to precipitate an altercation than one who is sound in body; at least, the jury was entitled to take into consideration such fact during their deliberations, as relating to the possible aggressor. Since we consider such evidence competent, it definitely appears that the remarks of the Court amounted to comment upon the weight of the evidence. On two occasions, the Court, though admitting the evidence, stated: “This is not a personal injury suit,” and three times made remarks to the effect that the Court did not consider the evidence competent or relevant. It must be remembered that many jurors are serving for their first time, but, for that matter, even though they have served numerous times, the attitude, statements, and opinion of the court probably make a more indelible impression upon the mind of the juror than any other factor during a trial. To the jury, his word is the law. As stated by the late Justice Butleb in Western Coal & Mining Company v. Kranc, 193 Ark. 426, 100 S. W. 2d 676:

“Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which might tend to influence the minds of the jury. By his words or conduct he may, on the one hand, support the character and weight of the testimony, or may destroy it in the estimation of the jury. Because of his personal and official influence, uncalled for or impatient remarks, although not so intended by him, may give one of the parties an unfair advantage over the other.

The remarks indulged in by the trial court in the instant case to our minds had the effect of minimizing the value of the evidence admitted. * * * ”

Likewise, as stated by the beloved Judge Battle, in Sharp v. State, 51 Ark. 147, 10 S. W. 228:

“In the midst of doubt as to what their verdict should be as to appellant, it was natural for them to seize upon and adopt any opinion which they understood the judge to have expressed or intimated upon the questions they were required to decide. * * *”

Clearly, the remarks of the court intimated that the evidence was of little, if any, value. While we recognize that no partiality or prejudice was intended by the remarks of the court, such remarks could have been damaging to appellant’s plea of self-defense.

Numerous other errors are alleged, hut we find no-merit in such allegations.

Because of the error herein set out, the judgment is reversed, and the cause remanded.

       Varnadore’s testimony about the ear was as follows: “The ear drained and it would sometimes drain down on his shirt and he would have to keep putting cotton in his ear, and he would have to do that three or four times a day. * * * Yes, there seemed to be blood and pus.”

       McMillan’s ioster mother testified thei-e was a discharge from his ear with “an awful odor” which she would help clean out.


source: Caselaw Access Project

author: J. Seaborn Holt, Associate Justice. Paul Ward,

license: Public Domain

text:
    Ark. State Highway Comm. v. Mabry.
    5-1655
    315 S. W. 2d 900
    Opinion delivered June 23, 1958.
    [Rehearing denied September 29, 1958.]

      Neill Bohlinger, W. R. Thrasher and Dowell Anders, for appellant.

      Rolland Bradley, Francis Donovan and Wood & Smith, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee, Mahry, a resident of Faulkner County and a user of the ferry in question, on December 2, 1957, filed his petition alleging “Petitioner lives in a portion of Faulkner County near the Arkansas River and near State Highway 60. The river crossing at this point is by ferry known as Toad Suck Ferry presently being operated by a private contractor charging toll. Petitioner frequently uses such ferry and under exacting circumstances pays toll therefor. Act Number Three, First Extraordinary Session, 1957, Sec. 3 appropriated, payable out of the State Highway Department fund, for ferries in the state highway system ‘ $25,000.00 which shall be paid for the purchase of the ferry on the Arkansas River which connects Highway 60 between Faulkner County and Perry County.’ Petitioner alleges that such act is mandatory but that the State Highway Commission has refused to comply with the terms thereof. Compliance would result in purchase by the state and free operation of the ferry. Wherefore, petitioner prays for a writ of mandamus directed to the State Highway Commission compelling it to issue a voucher to the Auditor of the State upon which a warrant for the purchase of the above mentioned ferry may be completed; and in the alternative for a declaratory judgment defining the obligations of the State Highway Commission with reference to the foregoing act.”

Appellant, Highway Commission, demurred to the petition on the grounds that the trial court lacked jurisdiction, that appellee lacked legal capacity to sue, and that his petition did not state a cause of action. From a decree holding that the provision in Act 3 of 1957, which recites that there shall be paid out of the State Highway Department Fund for ferries in the State Highway System “$25,000 which shall be paid for the purchase of the ferry (known as Toad Suck Ferry) on the Arkansas River which connects Highway 60 between Faulkner County and Perry County” was mandatory and directing appellant to procure issuance of the. voucher for $25,000 payable to Clay Cross for the purchase of the ferry, comes this appeal.

All evidence presented in the trial court was contained in the following stipulation of the parties: ‘ ‘ Section 2-A of Act 451 of 1953, Arkansas General Assembly provided $20,000.00 for the construction, operation and maintenance of a river toll ferry on the Arkansas River to connect State Highway No. 60 between Faulkner County and Perry County, by State Highway Commission Minute Order No. 570, dated January 24, 1954, the State Highway Director was ordered to prepare specifications and request bids for construction, maintenance and operation of toll ferry services at said location . . . Plans and specifications were prepared and by duly advertising, bids on the contract for the ferry operation were asked for . . . The only bidder was Mr. Clay Cross, who was notified of his award of the contract on October 5, 1955. The contract between the Highway Commission and Mr. Clay Cross for the construction and operation of the ferry was signed and the performance bond executed on October 17, 1955. The Work Order for the construction of the ferry to begin was issued on November 8, 1955. The ferry barge was accepted by the Highway Department and put in operation by Clay Cross in June, 1956. Under Item 12 of the contract the State had agreed to contribute $20,-000.00 toward the payment of the floating equipment and under Item 22 the payment was to be made to the contractor based upon certified paid invoices presented by the contractor showing sums actually expended for the floating equipment. (Payment of the $20,000 was made to Cross on receipt of the invoices) . . . The ferry began operation in June 1956, and is presently in operation. The traffic count for 1956 showed a daily average vehicle traffic of 21. ... The traffic count for 1957 is attached as Exhibit O and shows the average daily traffic of 11 vehicles. . . . Act 3 of the 1957 Extraordinary Session of the Arkansas General Assembly, the Highway Department’s biennial appropriation, provided ‘for maintenance, construction and repair . . .; and $25,000.00 which shall be paid for the purchase of the ferry on the Arkansas Eiver which connects Highway 60 between Faulkner and Perry Counties . . .’ On January 8, 1958, by letter to the State Highway Commission, Mr. Clay Cross offered to sell his interest in the ferry to the State for $25,000.00 and submitted thereon certain items as being in excess of the $20,000.00 expenditure on behalf of the State which was contributed toward the acquisition of physical assets necessary for the operation of the ferry . . . The Commission officially rejected this offer to purchase on January 24, 1954. The Highway Department inventoried and valued the assets of the ferry at $3,-035.15, . . .”

Act 3 above was “An Act to make appropriation for the State Highway Department from the State Highway Department fund for the construction, reconstruction, and maintenance of roads and bridges in the State Highway System for the biennial period ending June 30, 1959, and for other purposes. Be it enacted by the General Assembly of the State of Arkansas: Section 1. There is hereby established for the State Highway Department, for the biennial period ending June 30, 1959, the following maximum number of regular employees and the maximum salary of such employees; and no greater salary than established herein, except as modified in Section 2 hereof, shall be paid to any employee from appropriations hereinafter made for said Department. Provided further, that it is the intention of this act to make available the maximum salaries provided herein to secure efficient, skilled employees; and in determining the annual salaries of such employees the administrative head of such Department shall take into consideration ability and length of service, but it is not the intention of this act that the maximum salaries shall be paid unless such qualifications are complied with and then only within the limitations of the appropriations and funds available for such purpose.” Then follows the “Maximum number of employees and the maximum annual salary rates,” to be paid for the periods 1957-58 and 1958-59. Section 2 provides for payments for overtime work of certain employees. Section 3: ‘ ‘ There is hereby appropriated, to be payable out of the State Highway Department Fund, for the operation of the State Highway Department, for construction, reconstruction, maintenance, betterment and replacement of roads, bridges and ferries in the State Highway System for the biennial period ending June 30, 1959, the following:

Item Fiscal Years

1957-58 1958-59

(1) Regular Salaries...........................$ 8,662,900 • $ 9,727,600

(2) Extra Help .............................................4,700,000 4,800,000

(3) For maintenance, construction, reconstruction, repair, replacement, relocation, betterment, and operation of roads, bridges and ferries in the State Highway System; including the acquisition of necessary rights-of-way; the purchase, repair and operation of equipment; the purchase of materials and supplies; the payment of departmental current expenses, and the payment of travel expenses, and $25,000.00 which shall be paid for the purchase of the ferry on the Arkansas River which connects Highway No. 60 between Faulkner and Perry Counties, ............................................................$65,280,000 $71,395,000

Total amount appropriated ......$78,642,900 $85,922,600”

Section 4 has to do with the minimum wage scale paid certain employees. Section 5 relates to holidays allowed employees. Section 6. “Provided that any unexpended appropriation balance remaining on June 30, 1958, in the appropriation authorized in Section 3 hereof for Item (1) Salaries, Item (2) Extra Help, and Item (3) Construction, Maintenance and Operation shall, upon resolution of the State Highway Commission, be brought forward and made available for the purposes provided for in Item (3), in Section 3 hereof, during the fiscal year beginning July 1, 1958 and ending June 30, 1959.” Section 7 provides that should any provision of the act be found unconstitutional or void it should not affect the remainder, declares the provisions of the act severable and repeals all laws in conflict therewith.

The primary and decisive question presented is whether Act 3 of 1957 above made it mandatory on the Highway Commission to pay for “Toad Suck Ferry” $25,000,-no more and no less-, by using the following language: “. . . $25,000 which shall be paid for the purchase of the ferry on the Arkansas River which connects Highway No. 60 between Faulkner and Perry Counties.”

After a careful review of the record presented we have concluded that the trial court erred in refusing to sustain appellant’s demurrer. In reaching this conclusion we hold that the above provision in Section 3 of Act 3 above, is not mandatory on the highway commission, but is discretionary and it was the intention of the legislature that it be so in the circumstances. Clearly Act 3 above was an appropriation act only, fixing maximum amounts to be expended by the Highway department for salaries of employees, for payments for highway bridges, ferries, etc., and was not a requirement or mandate to spend specific amounts. In other words, the highway department (or state agency) was not required to spend all the monies appropriated. This act clearly was in compliance with article 5, Sec. 29 of our State Constitution, which requires the maximum amount of any appropriation act to be stated specifically in dollars and cents. As we view this case, the amounts to be spent were discretionary. Our rule is well established that mandamus may be resorted to only when an official or agency refuses to perform a purely ministerial act which a statute imposes upon them. See Pitcock v. State, 91 Ark. 527, 121 S. W. 742.

As pointed out Act 3 above was purely an appropriation act. It appears not to be contended by appellee that in spending the maximum allotments for every purpose specifically set forth in the act, — except for the one purpose here involved- — , the highway department could not use its discretion. But, says appellee, the appellant had no choice or discretion in the purchase of this ferry but to spend $25,000 of the taxpayers’ money for it, regardless of whether it was worth that amount or could be procured for less money. As indicated, it was stipulated that the Highway Department’s inventory showed this ferry to be worth only $3,035.15. Had this directive to provide and spend this amount been provided in a separate act, — as was done in Act 451 of 1953, above, providing for the purchase of the barge — , then we would not hesitate to hold with appellee’s contention for the reason that the intent and purpose of the legislature would be clear. It becomes necessary, therefore, to construe the meaning of this Act 3 above and in doing so one of our cardinal rules is first to endeavor to ascertain the intent of the legislature from the language used in the statute. See McDaniel v. Ashworth, 137 Ark. 280, 209 S. W. 646. Further, the rule is well established that where the language is ambiguous, we may not only look to the language but to the subject matter of the act, the object to be accomplished, purpose to be served, the expediency of the act, the remedy provided, the consequences following its enactment and various extrinsic matters which may throw some light on the legislative intent. See Holt v. Howard, 206 Ark. 337, 175 S. W. 2d 384. “The primary rule in the construction of a statute is to ascertain and give effect to the intention of the lawmakers, and this intention is to be ascertained from a consideration of the entire act. In arriving at the intention of the lawmaking power it is proper to consider the object to be secured, the circumstances attending the adoption of the measure, and its relation to other laws,” Perry County v. House, 196 Ark. 317, 117 S. W. 2d 342. “In construing a statute, the intention of the legislature is to be ascertained not merely from the language of the act taken as a whole, but, where the language is not free from ambiguity, from the application of the act to existing circumstances and necessities. When the words of a statute are not explicit, the intention of the legislature is to be collected from the context, by considering the subject matter, by looking to the occasion and necessity for the law and the circumstances under which it was enacted, to the mischief to be remedied, the object to be obtained and the remedy in view, by comparing one part with the other, and giving effect to the whole, by looking to the old law upon the subject, if any, and other statutes upon the same or similar subjects, by considering the effects and consequences of a particular construction, and by looking to contemporaneous legislative history and contemporaneous construction of the statute. 25 R. C. L. 1012, 1013,” Cooper v. Town of Greenwood, 195 Ark. 26, 111 S. W. 2d 452. We do not think that here the legislature ever intended that the Highway Department should pay the maximum of $25,000 allotted for the purchase of the ferry, in any event. “When the courts are called on to review and control the official acts of an officer in a co-ordinate branch of the government, they should proceed with extreme caution and circumspection, and the right of the courts to exercise this power should be manifestly clear and free from doubt and not made to depend upon uncertainties or the doubtful construction of a statute,” Jobe v. Urquhart, 102 Ark. 470, 143 S. W. 121.

To carry out the legislative intent the word “shall” may in certain circumstances, we think, as here presented, be construed as the equivalent of “may”. “Ordinarily the words ‘shall’ and ‘must’ are mandatory, and the word ‘may’ is directory, although they are often used interchangeably in legislation. This use without regard to their literal meaning generally makes it necessary for the courts to resort to construction in order to discover the real intention of the legislature. Nevertheless, it will always be presumed by the court that the legislature intended to use the words in their usual and natural meaning. If such a meaning, however, leads to absurdity, or great inconvenience, or for some other reason is clearly contrary to the obvious intention of the legislature, then words which ordinarily are mandatory in their nature will be construed as directory, or vice versa. In other words, if the language of the statute, considered as a whole and with due regard to its nature and object, reveals that the legislature intended the words ‘shall’ and ‘must’ to be directory, they should be given that meaning,” Crawford-Statutory Construction, Sec. 262, p. 519.

Accordingly, the decree is reversed and the cause remanded with directions to sustain appellant’s demurrer.

Harris C. J., and Ward and Robinson, JJ., dissent.

Paul Ward,

Associate Justice, dissenting. The majority opinion contains so many unsupported conclusions and irrelevant quotations that it is difficult to determine the real basis on which it rests.

I do agree however with two statements contained in the opinion. One: The primary and decisive question is whether said Act 3 of 1957 is mandatory. Two: What was the intention of the legislature as expressed in the Act? Since the majority appear to take the position that the answer to the first question depends on the answer to the second question, all of my remarks shall be directed to the latter.

As indicated above the majority must have found it was not the intention of the legislature that $25,000 should be paid for the ferry. The pertinent part of said Act 3 reads as follows:11 and $25,000 which shall be paid for the purchase of the ferry * * * ” In view of the fact that the wording of the Act expresses the intent in clear language it was necessary, of course, for the majority to assign various reasons and resort to certain rules of statutory construction in order to show the intent was something other than that stated in the Act itself. In doing this the majority have overlooked the most fundamental rule of all, to-wit: none of these aids to interpretation shall be employed unless the language of the Act is ambiguous. Nowhere has the majority pointed out in what way the language in said Act 3 is ambiguous. At any rate it will be interesting to examine the various attempts by the majority to explain why the Act does not mean what it says.

(a) Nearly two pages in the majority opinion are used to set out items appropriated in Act 3. Just what bearing all these other items have on the item in question is not shown. None of them have the mandatory language contained in the questioned item.

(b) After setting out the Act the majority say it is “purely an appropriation act.” By this it is implied that mandatory language could not be contained in an appropriation act. If this is what is meant then the majority refute their own argument, for they state: “Had this directive to provide and spend this amount been provided in a separate act, as was done in Act 451 of 1953 * * * then we would not hesitate to hold with appellee’s contention * # *” Reference to said Act 451 shows it to be an appropriation act like Act 3 and also that it is not a separate act, but deals with numerous items just like Act 3.

(c) In speaking of Act 3 the majority make this statement: “This act clearly was in compliance with Amendment [Article] 5, Sec. 29 of onr State Constitution, which requires the maximum amount of any appropriation act to he stated specifically in dollars and cents”. Just what this is supposed to prove entirely escapes me. In the first place $25,000 is a maximum amount. Surely the majority do not mean that the word “maximum” is necessary in an appropriation hill to make it effective.'

(d) The majority call attention to the fact that the Highway Department’s inventory showed the ferry assets to be only $3,035.15. Again I am unable to see how this throws any light on the intention of the legislature. Moreover it is not within the province of this court’s powers to question the policy or wisdom of the legislature. Anyway the majority could have pointed out that Cross’s itemized statement shows the value of the ferry to be commensurate with the proposed purchase price.

(e) The majority cites several decisions of this court, quoting at length, invoking rules of statutory construction. I thoroughly agree with the rules announced in these decisions. However, as stated at the beginning, they are applicable only when the language to be interpreted is ambiguous. Before the majority invoked these rules as aids to construction they should have pointed out the ambiguities relied upon. Frankly, I can think of none. There is no ambiguity about the amount to be paid, none about the identity of the ferry, and none about the intent to purchase.

I can understand why many people might question the wisdom of the legislature in this instance, but I can’t understand how anyone could be in doubt about the intent of the legislature. The essence of my objection to the majority opinion, then, is that it applies well established and salutary rules of statutory construction where there exists no occasion for doing so. This I think, should not be done merely to reach a desired result.


author: Ed. F. McFaddin, Associate Justice. Robinson, J.,

text:
    Patterson v. Polk.
    5-1600
    317 S. W. 2d 286
    Opinion delivered June 23, 1958.
    [Rehearing denied October 13, 1958.]

      Wright, Harrison, Lindsey & Upton, for appellant.

      Wootton, Land & Matthews and Harry E. Meek, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a suit brought by a Trustee (Herbert S. Bonney, Jr.) asking the Court of Equity for instructions as to how the Trustee should proceed. Such procedure is recognized (see Ark. Baptist State Convention v. Board of Trustees, 209 Ark. 236, 189 S. W. 2d 913).

Mrs. Elizabeth S. Polk executed her will on June 4, 1954 and died on June 6, 1954, a citizen and resident of Dallas County, Texas. She owned real estate in Hot Springs, Arkansas and the will was also duly filed in Garland County, and her husband, Eugene Polk, was appointed ancillary administrator in Arkansas. It is about the real estate in Hot Springs that we are here concerned. Mrs. Polk was survived by her husband, Eugene Polk; and he is the life tenant of the Arkansas properties here involved and joined with the Trustee, Mr. Bonney, as a party plaintiff in this suit. Mr. Polk, as life tenant, is cooperative with the Trustee.

The portions of Mrs. Polk’s will necessary for a determination of this case are as follows:

“XIV. I devise and bequeath to my beloved husband, Eugene Polk, a life estate in and to my property in Hot Springs, Arkansas, known as the Kress Building, with remainder to Ralph Patterson, Jr., and the Patterson twins, Frank and Helen Patterson, children of my niece and nephew, Helen and Ralph Patterson, Sr., as hereinafter provided. I devise and bequeath to my beloved husband, Eugene Polk, a life estate in and to my real property in Hot Springs, Arkansas, known as the Schneck Building, with remainder to my god-children, James Fitzhugh Burton and Isabel Lee Burton, as hereinafter provided. It being my intention, wish and desire that my beloved husband, Eugene Polk, shall enjoy the rents and revenues and income of every kind and character from both the Kress Building and the Schneck Building as long as he shall live.

“XV. a Upon the death of my beloved husband, Eugene Polk, I devise and bequeath to my friend and attorney, Herbert S. Bonney, Jr., in trust and as the Trustee of my god-children, James Fitzhugh Burton and Isabel Lee Burton, my real property and improvements located in Hot Springs, Arkansas, known as the Schneck Building; and I devise and bequeath to my said Trustee in trust and as Trustee for Ralph Patterson, Jr., and Frank Patterson, and Helen (Sissie) Patterson my real property and improvements situated in Hot Springs, Arkansas, known as the Kress Building. It is my desire that my Trustee shall, if possible, place all of the indebtedness against the two above mentioned buildings and land thereunder upon the Kress Building, thereby releasing the Schneck Building from any and all indebtedness.

“b. My said Trustee shall hold the above described property in trust so long as all of the beneficiaries of said trust are minor children, and when each such beneficiary shall attain the age of twenty-one years, my said Trustee shall convey the undivided interest to which such beneficiary is entitled, to each beneficiary. My trustee shall apply all of the rents and revenues over and above taxes and expenses to retire the mortgage indebtedness on said real property and improvements, bnt if the Scbneclc Building shall be clear of debt, such revenues derived from it shall be paid to the beneficiaries for whom said Trustee shall be holding said Schneck Building, share and share alike.

“e. I devise and bequeath all of the residue of my property, real, personal and mixed, after the death of my beloved husband, Eugene Polk, other than the special bequests made in this Will, to my said Trustee, Herbert S. Bonney, Jr., and I instruct my said Trustee to liquidate said residue estate and apply the same against the indebtedness then due against the Kress Building and Schneck Building, and should there be any property or estate left after the payment of said indebtedness on said buildings in full, one-half of the same shall be given, share and share alike, to Ralph Patterson, Jr., Frank Patterson, and Helen (Sissie) Patterson, and the other one-half shall be given, share and share alike, to James Fitzhugh Burton and Isabel Lee Burton, as each of the above mentioned Pattersons and Burtons attain the age of twenty-one (21) years.

“XVIII. . . My said Trustee shall have the power with reference to all properties coming to him in trust, except the Kress Building and the Schneck Building properties above described, to sell, dispose of or otherwise perform any act or execute any instruments with reference thereto and shall have all the powers given Corporate Trustees by the statutes of the State of Texas with reference to the handling of such residue property.”

It is essential to an understanding of this case that we give certain other facts developed in the trial:

1. The two properties in Hot Springs are referred to as the “Kress property” because it is leased to S. H. Kress Company, and the “Schneck property” because it is occupied by the Schneck Drug Company. It will be observed from the foregoing copied portions of Mrs. Polk’s will that the Kress Building was devised to Mr. Polk for life with the remainder to the Patterson children, but under the trusteeship of Mr. Bonney during the minority of the Patterson children; and that the Schneck Building was devised to Mr. Polk for life with the remainder to the Burton children, but under the trusteeship of Mr. Bonney during the minority of the Burton children.

2. Mr. Polk is a man now 89 years of age and as life tenant under Mrs. Polk’s will is receiving all of the net rents from the two properties.

3. The Patterson children with their birth dates and ages are as follows: (a) Ralph M. Patterson, Jr. was born May 17, 1936 and became twenty-one years of age on May 17, 1957; (b) Helen Patterson, a girl, was born November 25, 1943, and will become twenty-one years of age on her birthday in 1964; (c) Prank Patterson was likewise born on November 25, 1943 and will become twenty-one years of age on his birthday in 1964.

4. The Burton children, with their birth dates and ages, are as follows: (a) James Fitzhugh Burton was born October 5, 1947 and will become twenty-one years of age on his birthday in 1968; (b) Isabel Lee Burton was born on November 6, 1948 and will become twenty-one years of age on her birthday in 1969.

5. It will be observed from Paragraph XV of the will that the age of twenty-one is listed as the determinative age for each beneficiary, so these dates will become important in our decision in this case.

6. The Kress property is now bringing in a monthly rental of $400.00 in addition to taxes and insurance; and the Schneck property is now bringing in $225.00 per month in addition to taxes and insurance. The two properties are now, and were at the time of Mrs. Polk’s will and death, under a mortgage to the Equitable Life Assurance Society in the amount of $45,-000.00, which bears interest at the rate of 4 per cent per annum. The mortgage became due on October 1, 1957 and is now past due; and refinancing is awaiting the outcome of this litigation. The Kress building is leased to S. H. Kress & Company until December 31, 1960. The Schneck building appears to have some sort of option provision that may extend the lease as long as 1965, although that point is not entirely clear in the record.

7. On February 13, 1957, Mr. Herbert S. Bonney, Jr., as Trustee under Mrs. Polk’s will, and Mr. Eugene Polk, as ancillary administrator under the will, filed the present proceeding in the Garland Chancery Court, naming as defendants the three Patterson children previously mentioned, the two Burton children previously mentioned, and the guardians of those that are minors. Ralph M. Patterson, Jr. is of full age and is represented by counsel. Mr. Ralph M. Patterson, Sr. is the guardian of Helen Patterson and Frank S. Patterson, minors. Frank M. Burton, Sr. is the guardian of James Fitzhugh Burton and Isabel Lee Burton, who are minors. Mr. Bonney, as Trustee, asked the Garland Chancery Court to give him instructions by answering certain well framed questions, germane portions of which questions relate to: (a) the title and right of the Trustee to the properties; (b) the power or duty of the Trustee to negotiate renewal or extension of the present mortgage of $45,-000.00; (c) whether the Schneck Building should be released from the lien of the mortgage if the new mortgage can be obtained entirely with the Kress Building as security; (d) whether the Trustee has power to act even though Ralph M. Patterson, Jr. is over the age of twenty-one; and (e) whether the Trustee can execute a lease of either property for a longer period than the date when beneficiaries reach twenty-one years of age. The attitude of the life tenant, Mr. Eugene Polk, has been most cooperative; and, due to that fact, we treat the case as though only the Trustee’s powers were at issue, because Mr. Polk seems thoroughly agreeable to executing any instruments that the Court may direct the Trustee to execute.

8. The Burton children (all minors) answered by their guardian, and claimed that the Schneck Building should be cleared of the $45,000.00 mortgage and that the provision in Mrs. Polk’s will to that effect in Paragraph XV is mandatory on the Trustee.

9. Ralph M. Patterson, Jr., one of the Patterson children, and being himself of full age, claimed that under Mrs. Polk’s will his one-third interest in the Kress Building was vested in him on reaching twenty-one years, subject only to the life estate of Mr. Polk, the '$45,000.00 mortgage, and the present lease which expires in 1960; that the Trustee had no power to execute any renewal or extension of that lease on the Kress Building covering the interest of Ralph M. Patterson, Jr. without his individual consent; that the provision in Mrs. Polk’s will (that the total indebtedness of $45, 000.00 be shifted to the Kress building, if possible) was precatory only and not mandatory; that, at all events, the power of the Trustee had ceased insofar as Ralph Patterson, Jr. was concerned when he became twenty-one years of age.

10. The other two Patterson children, Helen Patterson and Prank Patterson, being minors, answered by their guardian, Ralph M. Patterson, Sr., and adopted in the main the position of Ralph Patterson, Jr.

11. At the trial it was shown that the $45,000.00 mortgage could be refinanced with the Equitable Life Assurance Society on a 15-year basis at 5 per cent, with no principal payments for five years and then amortized in equal installments over the other ten years at 4 per cent; and the Equitable Life Assurance Society was willing to release the Schneck Building and take the Kress Building as its sole security, provided some satisfactory assurance could be obtained as to tenancy of the Kress Building. It was further shown that the Kress Company would pay a rental of $700.00 per month for the Kress Building, provided a lease could be obtained for as long as twenty years from the present expiration in 1960.

So much for the background facts. At the trial the evidence and stipulations developed all of the factual statements hereinbefore contained; and the Chancery decree answered the questions posed by the Trustee. These answers were, in effect: (a) that the Trustee had power to negotiate a renewal or extension of the present $45,000.00 loan and transfer the entire loan to the Kress Building and completely release the Schneck Building from the mortgage; (b) that the Trustee had the power to completely mortgage the Kress Building with the approval of the Court but without any approval or joinder of Ralph M. Patterson, Jr.; (c) that the Trustee had the complete power to execute a 20-year lease on the Kress Building from its present expiration, beginning January 1, 1960, without any consent or joinder of Ralph Patterson, Jr. or any of the guardians; and (d) that the Trustee, prior to the youngest beneficiary becoming twenty-one years of age, had full power to act, since the life tenant joined with him in the matters.

From that decree there is the present appeal, and we condense the various issues, presented in the excellent briefs, into the following topic headings:

I. The Duration Of The Trust. The first point that must be decided is the duration of the trust because if Ralph Patterson, Jr. is correct in his contention, then Mr. Bonney, as Trustee, has no power whatever over the one-third remainder interest of Ralph Patterson, Jr. In Cross v. Manning, 211 Ark. 803, 202 S. W. 2d 584, we stated some of the rules for construing wills; and those rules are applicable here. After a careful study of all the various provisions of Mrs. Polk’s will, as previously copied, we reach the conclusion that Mrs. Polk intended to and did accomplish the following: (a) she devised the Kress property to Mr. Polk for life with remainder to the Patterson children, who have a vested remainder subject to the powers of the Trustee, as hereinafter stated; and (b) the same thing applies to the Schneck property and the Burton children. Thus, there were and are two distinct and separate trusts: (1) a trust for the Patterson children on the Kress property; and (2) a trust for the Burton children on the Schneck property. The will distinctly makes the trusts separate.

Mrs. Polk established a trusteeship over the Kress property until the youngest of the Patterson children reaches the age of twenty-one years; and a trusteeship over the Schneck property until the younger of the Burton children reaches the age of twenty-one years. We have previously given these dates; and they show that the trusteeship over the Schneck property extends until November 6, 1969 when Isabel Lee Burton becomes twenty-one years of age; and the trusteeship over the Kress property extends until November 25, 1964, when Helen Patterson and Prank Patterson become twenty-one years of age. The trusts are separate and distinct.

It will be noted that in Paragraph XV of her will Mrs. Polk said, “My said Trustee shall hold the above described property in trust so long as all of the beneficiaries of said trust are minor children . . .” She used the term, “minor children” as meaning under twenty-one years of age, because she instantly added, “. . . and when each such beneficiary shall attain the age of twenty-one (21) years, my said Trustee shall convey the undivided interest to which such beneficiary is entitled to each beneficiary.” Mrs. Polk undoubtedly knew that the children would not all be twenty-one on the same day and she wanted the trust to continue on the Kress property until the youngest one of the Patterson children became twenty-one. All that Ralph Patterson, Jr. received when he became twenty-one was his beneficial interest in the property subject to the continuation of the trust during the life of the life tenant and until the youngest Patterson child becomes twenty-one. It is clear that when Mrs. Polk said: “. . . so long as all of the beneficiaries of the trust are minor children,” she used the word “all” in the sense of “any” because the trust continues on each property until all of the beneficiaries reach twenty-one years of age.

Ralph Patterson, Jr. says that the trusteeship ended on his one-third remainder interest in the Kress property when he became twenty-one years of age. We do not so interpret the will. It was a trusteeship on the Kress property during the minority of the three beneficiaries, and was not a mere trusteeship over the interest of each of the three children in the Kress property. The Trustee is to handle the entire Kress property and not the separate interest of the still remaining minors. What Ralph Patterson, Jr. was entitled to receive when he became twenty-one years of age was the right to an instrument attesting that he owned a one-third interest in the remainder in the Kress property, subject to the powers of the Trustee under the will of Mrs. Polk; and such power continues until the youngest of the three Patterson children reaches twenty-one years of age. We hold that Mr. Bonney, as Trustee, has all the powers given him by Mrs. Polk’s will and that the majority of Ralph Patterson, Jr. has no effect on the powers of the Trustee over the Kress property.

All that has been said regarding the rights of the Patterson children in the Kress property applies with equal force to the rights of the Burton children in the Schneck property. In short, absent any death of the beneficiaries, the trusteeship on the Kress property will cease when the youngest Patterson child reaches the age of twenty-one; and the trusteeship on the Schneck property will cease when the younger of the Burton children reaches the age of twenty-one. Of course, during the life of Mr. Polk the remaindermen have only a vested remainder on which the Trustee may act.

II. Mandatory v. Precatory. At the time of Mrs. Polk’s will both the Kress property and the Schneck property were included in a mortgage to the Equitable Life Assurance Society for $45,000.00; and the same condition exists now. Mrs. Polk’s will, as previously copied, says as regards this mortgage indebtedness, It is my desire that my Trustee shall, if possible, place all of the indebtedness against the two above mentioned buildings and land thereunder upon the Kress Building, thereby releasing the Schneck Building from any and all indebtedness. . . but, if the Schneck Building shall be clear of debt, such revenues derived from it shall be paid to the beneficiaries for whom said Trustee shall be holding said Schneck Building, share and share alike.”

The Trustee, Mr. Bonney, is Trustee for both sets of remaindermen — the Patterson children and the Burton children — and he wants to be absolutely fair to his cestui que trusts. At the same time he wants to be loyal to his trust, so he expresses no opinion as to whether the provision of the will as above referred to is mandatory or precatory. He asked the Chancery Court to make that decision. The Burton children say that the language about freeing the Schneck property is mandatory; and the Patterson children say that the language is precatory.

The distinction between mandatory and precatory words in wills and trust instruments could make a treatise in itself. In wills and trust instruments, directions are held to be mandatory -when such words direct, command, or require something to be done; and directions are held to be precatory when such words merely express a hope or wish, and leave it to. the trustee or the occurrence of some fortuitous circumstance as to whether the desires will be accomplished. If Mrs. Polk’s language about placing the mortgage indebtedness entirely on the Kress Building was merely precatory, then Mr. Bonney, the Trustee, cannot accomplish such purpose. It would unduly prolong this opinion to discuss the value of the properties, the position of the language, the general tone of the words throughout the entire will, or to otherwise elaborate on the reasons for our conclusions; but after a careful study we have concluded that the words in Mrs. Polk’s will are mandatory on the Trustee. That is, Mr. Bonney should make every reasonable, honest, and bona fide effort to: (a) refinance the $45,-000.00 mortgage at a rate of interest in keeping with present day interest rates; and (b) if possible, obtain a mortgagee who will accept the Kress property as sole security as such interest rate. The mortgage can extend longer than the trusteeship over the Kress property, but the mortgage should contain a clause allowing a full repayment of the indebtedness on any anniversary date after ten years from date of the mortgage. Of course, the proposed note and mortgage must be submitted by the Trustee to the Chancery Court for approval; but when the Trustee and the life tenant join in the note and mortgage and the Court approves it, then the Patterson children cannot complain if only the Kress Building be mortgaged.

III. Long Term, Lease Of The Properties. The present lease on the Kress property expires December 31, 1960, and the present rental is $400.00 a month after payment of taxes and insurance. S. H. Kress & Company has been the tenant of this building for more than forty years and has proved to be a most satisfactory tenant. The Trustee, Mr. Bonney, reported to the Chancery Court in this proceeding that the Kress Company wanted to make, at its own expense, certain extensive improvements on the property, and would pay a rental of $700.00 per month beginning immediately if a valid lease could be made by the Trustee to run until December 31, 1980 (a period of twenty years from the expiration of the present lease). The Chancery Court considered this to be a good monthly rental and indicated that the Trustee would be authorized to execute the lease.

Viewing the matter as a good business proposition, it appears that the Chancery Court was possibly correct: but viewing the matter as regards the powers and authority of the Trustee, we are forced to conclude that Mrs. Polk’s will did not give the Trustee power to execute a lease for such a long period of time after the last of the Patterson children becomes of age. Mrs. Polk’s will did not set up a trust on the Kress property for an indefinite time and empower the Trustee to pay the beneficiaries their moneys at stated intervals; rather, Mrs. Polk’s will set up a trust on the Kress property that could not in any event extend longer than the time when the youngest Patterson child became twenty-one years of age. It was a trust during the minority of the Patterson children, and not a trust for some period of time.

The Trustee cannot be authorized by the Chancery Court to lease the property after the youngest Patterson child reaches twenty-one years of age, unless all the Patterson beneficiaries duly consent to such lease. But absent such consent, then no lease can be made past the end of the trust except, of course, to the end of the calendar year. Our holding is possibly unfortunate from a business viewpoint; but we are obliged to restrict the trust powers to what we construe the testator to have stated in the will. In the excellent briefs there is a discussion of a line of cases on extending the power of the trustee to lease property past the life of the trust. We see no need to discuss these cases because we restrict our holding to the trust here involved; and, in the case at bar, we reach the conclusion that Mrs. Polk intended for the trusts to be separate trusts on the properties for the minority of the class of beneficiaries, and for the powers of the Trustee to terminate in each trust when the youngest beneficiary thereof reaches the age of twenty-one years.

CONCLUSION

The decree is affirmed in part and reversed in part as herein contained; and the cause is remanded to reinvest the Chancery Court with jurisdiction to enter a decree in keeping with this opinion and for any further proceeding's that any of the parties may undertake, consistent with the views herein contained. The costs of all courts will he taxed one-half against each of the respective trust estates.

George Rose Smith, J., not participating.

Robinson, J.,

dissents, being of the opinion that when Ralph Patterson, Jr. became 21 years of age the trust ended as to his interest.

       In various places in this opinion we use the expression “minority”, but do so to shorten the language of the will, which says “twenty-one years of age.”

       No one has mentioned in the brieis the possibility of the death of any of the beneficiaries before reaching' twenty-one as a termination of the trust; so we entirely ignore such eventuality and continue to refer to reaching the age of twenty-one years as the termination of the trust.

       Some few references are these: Cross v. Manning, 211 Ark. 803, 202 S. W. 2d 584; Cockrill v. Armstrong, 31 Ark. 580; Bloom v. Strauss, 73 Ark. 56, 84 S. W. 511; Wooldridge v. Gilman, 170 Ark. 163, 279 S. W. 20; Wallace v. Wallace, 179 Ark. 30, 13 S. W. 2d 810; Union Trust Co. v. Madigan, 183 Ark. 158, 35 S. W. 2d 349; 57 Am. Jur. 771 “Wills” § 1180; Annotations on “Precatory Trusts” in 49 A.L.R. 10, 70 A.L.R. 326, and 107 A.L.R. 896.

       This rental would now be $525.00 per month except for the fact that Mrs. Polk in effect received $125.00 per month of the rental in advance several years ago.

       Of course, a trustee could make a lease on a calendar year basis (or a crop year basis in an agricultural situation) in accordance with business customs of the locality; and a lease could extend to the end of the calendar year (or crop year) even if such time extended beyond the life of the trust. For equitable purposes we consider such a lease as being coterminus with the trust because at no event could it be longer than one year past the end of the trust. But the situation here is to make a lease for ten or fifteen years after the termination of the trust.

       Ralph Patterson, Jr., now being of full age, could now make his own consent to such long term lease; and by proper proceedings the guardian of the two minor beneficiaries could be empowered to make such consent.

       Annotations somewhat in point are found in 46 A.L.R. 2d 907 and 43 A.L.R. 2d 1102. See also 54 Am. Jur. 376 and Restatement of Trusts § 189e, page 500.


author: Ed. F. McFaddin, Associate Justice.

text:
    Crump & Rodgers Co. v. Southern Implement Co., Inc.
    5-1608
    316 S. W. 2d 121
    Opinion delivered June 23, 1958.
    [Rehearing denied October 6, 1958.]

      Baggett & Baggett, for appellant.

      Smith & Smith, Charles B. Roscopf, and Burke, Moore & Burke, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a controversy between the mortgagees and a lien claimant under § 51-404 et seq. Ark. Stats. The mortgagees are Crump & Rodgers Company and Dabney Crump, the appellants; the lien claimant is Southern Implement Company, Inc., the appellee; and we will refer to the parties by the designations in this Court.

In 1953 O. T. Pickard purchased a John Deere cotton picking machine. Subsequently he mortgaged the machine to the Phillips National Bank, and the mortgage is now held by the appellants. In the cotton picking season of 1956 Pickard had appellee repair his machine on three different occasions. The total bill of the appellee for parts and labor amounted to $2,114.55, which Pickard failed to pay. Appellee filed lien notice on February 9, 1957 under § 51-409 Ark. Stats.; and then filed suit to enforce the lien claim. Judgment by default was rendered against Pickard; but appellants defended by alleging: that appellee was claiming under three separate and distinct repair contracts; and that the lien was in effect for only the last repair job, which amounted to $110.96. They tendered this amount in Court. Trial resulted in a decree for a lien to appellee for the full amount, and this appeal ensued, presenting the points now to be discussed.

I. The-Buie of Werbe v. Holt. When the appellee, as plaintiff, rested its case, the appellants filed motion for judgment under Act No. 470 of 1949, now found in § 27-1729 Ark. Stats. The Trial Court tested the sufficiency of the plaintiff’s case in accordance with our holding in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, and held that the appellee had made a prima facie case. The appellants stood on their motion and judgment final was rendered for the plaintiff (appellee). So, under the rule of Werbe v. Holt, we give the appellee’s (plaintiff’s) case its strongest probative force; and if there be any substantial evidence to support the decree of the Chancery Court, then we must affirm.

II. The Lien Account. The account filed by appellee for $2,114.55 shows that appellee either furnished parts or performed labor on the cotton picking machine on thirty-four different days, beginning on September 8, 1956 and concluding on November 28, 1956. The lien notice under § 51-409 Ark. Stats, was filed on February 9, 1957, which was within the 90-day period from November 28, 1956, but more than 90 days from September 8, 1956. Appellee says that the account was a “running account” and that the 90-day period dates from the last item furnished, citing some of our cases on the mechanics’ and materialmen’s lien statute (§ 51-601 et seq. Ark. Stats.), such as: Geisreiter v. Standard Lbr. Co., 187 Ark. 893, 63 S. W. 2d 347; Whitener v. Purifoy, 177 Ark. 39, 5 S. W. 2d 724; Ferguson Lbr. Co. v. Scriber, 162 Ark. 349, 258 S. W. 353; and Kiser Lbr. Co. v. Mosely, 56 Ark. 544, 20 S. W. 409.

The rule of the cited cases would be applicable if there had been either (a) a definite contract between the parties covering all three of the repair jobs; or (b) the repairs had been under a running or open account for the completion of the work. This is all explained in Streuli v. Wallin etc. Co., 227 Ark. 522, 302 S. W. 2d 522, wherein, in speaking of the “running account”, we quoted the language of Mr. Justice Battle in Kizer Lbr. Co. v. Mosely, supra:

“ ‘. . . If, however, he began to furnish “without any specific agreement as to the amount to be furnished”, or the time within which they were to be furnished, and there was a “reasonable expectation that further material’’ would “be required of him’’, and he was “afterwards called upon, from time to time, to furnish the same”, he should file it within 90 days after the last item was delivered . . .’ ”

The evidence in the case at bar entirely fails to disclose the existence of either of the above requirements. There was never a definite contract between the parties for repairs over any period of time other than the immediate work order involved; and there was never any “reasonable expectation that further material would be required”. As to the definite contract matter, appellee’s managing officer, Mr. J. S. Crow, frankly admitted that Pickard and the appellee had no contract or agreement of any kind whereby Pickard expected, or appellee agreed, to do all of the repair work that might be required on the cotton picking machine during the season of 1956, or any other period of time. Mr. Crow testified:

“Q. And if anything happened to it you didn’t know whether he would come back to you or not, or would go to another implement company?

A. That would have been his privilege.

Q. That would have been his privilege? .

A. Yes.”

We come, then, to the matter of “reasonable expectation that further material would be required”, which is the only other basis on which the appellants can succeed. There were three work orders for repairs on the cotton picking machine. The first work order (No. 1823) was completed on August 24, 1956, and amounted to a total of $842.64. When this work was completed Pickard put the machine back into use and there is no evidence indicating that Pickard and appellee had any plans or agreement for any subsequent or further repairs. The second work order (No. 1936) was completed on September 28, 1956 and amounted to a total of $706.35; and when that work order was completed Pickard put the machine back into use and there is no evidence that Pickard or appellee had any plans or agreement for any subsequent or further repairs. Pickard bought some parts for the cotton picking machine which he installed himself; and then on November 28, 1956 there was the third and final repair job (work order No. 2278) for a total of $110.96. Appellee’s witness admitted that this third repair order indicated that the last work order on the cotton picking machine was because “it looks like from the parts list it hit something and bent a bar”.

It is, therefore, clear that there were three separate and distinct repair jobs, each complete in itself, and that the 90-day period, for filing the lien claim under § 51-409 Ark. Stats., ran from the completion of each repair job. In other words, there were three separate repair contracts, and not one contract covering the entire period. The case of Reed v. Horton, 135 Minn. 17, 159 N. W. 1080, involved a claimed lien on an automobile for a series of repairs, adjustments and parts furnished to the car; and the Minnesota Supreme Court held that each repair job was a separate job, saying: “We think the Trial Court held correctly, that when the repairs for such a vehicle are furnished at different times and constitute separate and distinct transactions, the right to claim a lien expires . . . sixty days after each transaction. It cannot be conceived that the Legislature intended lien claims against motor vehicles to have a floating existence for long periods of time without constructive notice thereof being given.”

The case of Reconstruction Finance Corp. v. Kern-Limerick, 192 Fed. 2d 978, when thoroughly analyzed, is not contrary to the Minnesota holding, because in the said Kern-Limerick case Judge Gardner, speaking for the U. S. Court of Appeals for the Eighth Circuit, was careful to point out: “In September, 1945 Shores entered into a contract with appellee to maintain and repair the equipment for use on the Sweet Home job, and from the date of this contract until Shores filed his petition in bankruptcy on July 3, 1946, appellee furnished materials and performed labor on the equipment.” Judge Gardner pointed out, that there was a contract for the continuing performance of repairs during the entire Sweet Home job; and because of the proof of such contract, the lien claimant had ninety days from the date of the last furnishing in which to file his lien claim.

As we have previously said, in the case at bar there was no contract looking toward repair and maintenance during any period; and so we conclude that each repair job was a separate contract. Under such view — and it is the only one that the evidence supports — the amount covered by the lien notice was $110.96 for the third work order (No. 2278), and the Chancery Court should have so held, because — even under the rule of Werbe v. Holt — there is no evidence to the contrary. The personal judgment against Pickard is left unaffected by our holding.

III. The Mortgages Held By The Appellants. The appellee says: “The Appellants, Crump & Bodgers Company and Dabney Crump, having utterly failed to discharge the burden of proof as to their respective mortgages, have no standing in the court below and in this court on appeal”. This point is without merit. The appellee alleged in the complaint that the appellants “. . . claim to have some interest in and to said equipment”. Appellants attached to their answer a copy of the note and mortgage originally executed by Pickard to Phillips National Bank and assigned by the Bank to the appellants. Then Mr. Minton, one of the appellee’s officers, made answers on cross-examination as follows:

££Q. Mr. Minton, did you know that this cotton picker was mortgaged at the time that you did this work on it?

A. I understood he owed on the cotton picker; yes.

Q. Did you know it was mortgaged to the Helena National Bank?

A. Phillips National Bank. I understood it was Phillips National Bank.

Q. Well, to Phillips National Bank. And you also knew that Mr. Crump and Rodgers had a mortgage on it?

A. Well, without a doubt. They take that in the furnish . . .

Q. Did you have any definite knowledge that there was a chattel mortgage outstanding to the Phillips National Bank?

A. Pickard has told me that.

Q. Mr. Pickard had told you that?

A. Yes.

Q. Mr. Pickard had told you that at the time the service was rendered and the materials furnished?

A. Yes.”

Thus, appellee’s own witness admitted that the appellants held a mortgage on the cotton picking machine.

CONCLUSION

The decree is reversed and the cause is remanded, with directions to enter a decree awarding appellee the $110.96 deposited in the Court; but to discharge the cotton picking machine from any lien claimed by appellee. Alj costs accruing after the date of the aforementioned court deposit are taxed against the appellee.

       General statements, as to the distinction between a separate contract and a continuing transaction, may be found in 57 C.J.S. 661, “Mechanics’ Liens”, § 144; 36 Am. Jur. 97, “Mechanics’ Liens” § 140; and Blashfield Encyclopedia of Automobile Law and Practice, Permanent Edition, § 5206.

       The Minnesota law is sixty days; the Arkansas law is ninety days.


author: Minor. W. Millwee, Associate Justice.

text:
    Champ v. Champ.
    5-1617
    314 S. W. 2d 503
    Opinion delivered June 23, 1958.

      Tommy H. Russell and Ruby E. Hurley, for appellant.
    No brief filed for appellee.
   Minor. W. Millwee, Associate Justice.

This appeal is from a decree sustaining the motion of appellee, Mary Champ, to dismiss a divorce suit filed against her in the Pulaski Chancery Court by appellant, Bichard D. Champ, on the ground that he did not qualify as a legal resident of this state for the required time preceding the institution of the suit.

The parties were reared in Ohio where they resided at the time of their marriage in 1948 and they have three children. Appellant has been a member of the U. S. Air Force since 1944 and has been stationed at many bases “all over the world.” During the past 2% years he has been stationed at the Little Rock Air Force Base in this state while appellee and the children remained at their home in Columbus, Ohio.

On January 4, 1957, appellant filed the instant suit against appellee in the Pulaski Chancery Court alleging desertion and general indignities as a ground for divorce. On January 28, 1957, appellee filed a motion to dismiss for want of jurisdiction alleging both parties were residents of Franklin County, Ohio. In an amended and substituted complaint filed on September 30, 1957, appellant alleged three years separation as an additional ground for divorce.

At the hearing on appellee’s motion to dismiss for want of jurisdiction it was shown that appellant filed a divorce suit against appellee in the Common Pleas Court of Franklin County, Ohio, early in 1956 alleging he was a resident of that state. He dismissed the petition for divorce when appellee filed a cross-petition upon which there was a hearing resulting in a “Decree of Legal Separation” on April 18, 1956, finding appellant guilty of “gross neglect.” Appellee was given permanent custody of the children and awarded $50.00 per month alimony and $150.00 per month for support of the children. The decree also found that both parties were legal residents of Ohio and the dismissal of appellant’s own cause of action to be with prejudice.

Appellant testified he had been stationed at numerous bases and was subject to reassignment at any time; that he had an Arkansas license tag on his automobile, an Arkansas poll tax receipt and had voted in the last election; and that he had lived off the base at a motel in North Little Rock for awhile but had moved back to the air base at the time of the trial. He was not asked and did not state his intentions as to making Arkansas his permanent home, but the motel owner where' he stayed about eight months testified that he heard appellant say he was going to make Arkansas his home if he ever left the service.

We have repeatedly held that a soldier acquires no residence in a locality merely because his military duties require that he sojourn there. Feldstein v. Feldstein, 208 Ark. 928, 188 S. W. 2d 295. In several cases we have approved the following statement from 19 C. J. 418: “The domicile of a soldier or sailor in the military or naval service of his country generally remains unchanged, domicile being neither gained nor lost by being temporarily stationed in the line of duty at a particular place, even for a period of years. A new domicile may, however, be acquired if both the fact and the intent concur.” We have also often approved this headnote from Ex parte White, 228 Fed. 88: “Assuming that a member of the Army may change his domicile, and establish it at any place he sees fit, if not inconsistent with the military situation, his intention to change must be clear, and must be associated with something fixed and established as indicating such a purpose.” Kennedy v. Kennedy, 205 Ark. 650, 169 S. W. 2d 876; Mohr v. Mohr, 206 Ark. 1094, 178 S. W. 2d 502; O’Keefe v. O’Keefe, 209 Ark. 837, 192 S. W. 2d 556.

The chancellor’s finding that appellant did not qualify as a legal resident of this state in that he had not shown a real and bona fide intent to acquire and establish a permanent residence here is not against the preponderance of the evidence. The decree is, therefore, affirmed.


author: George Rose Smith, J.

text:
    Lundell v. Swindell.
    5-1610
    314 S. W. 2d 505
    Opinion delivered June 23, 1958.

      George K. Cracraft, Jr., for appellant.

      David Solomon, Jr., for appellee.
   George Rose Smith, J.

This is a suit by the appellants, doing business as Lundell Plantation, to collect a “furnish” account from their former tenant, H. E. Swindell, and his wife, the appellees. The husband’s responsibility for the debt is conceded; the only question on appeal is whether Mrs. Swindell was a partner with her husband and therefore personally liable for the account. When the suit was filed in 1952 the plaintiffs garnisheed fire insurance proceeds in the amount of $1,-963.64, which were admittedly Mrs. Swindell’s separate property. Upon trial the chancellor held that Mrs. Swindell was not a partner in her husband’s farming-operations; the decree accordingly dissolved the writ and awarded damages for its wrongful issuance.

The weight of the evidence supports the chancellor’s findings. Early in 1949 the Swindells moved to Snow Lake Place, a farm owned by Lundell Plantation. To obtain financing from the landlord the Swindells executed a note for $6,000, payable in ten months, and a deed of trust securing the note and future advances made' during 1949 and 1950. The property conveyed by the' deed of trust consisted of eighteen items of farm machinery, all owned by the husband, and the debtors’ interest in the crops to be grown on the farm. The Swindells remained on the land for four years, during which, the present indebtedness accumulated. It is conceded that the items credited to the account were more than. sufficient to pay the $6,000 note and that no other written evidence of the debt was ever requested or given. If Mrs. Swindell is to be held personally responsible it must be found that the later advances were made to a husband-wife partnership rather than to the husband alone.

The evidence indicating the existence of a partnership is meager. The appellants rely primarily upon the fact that Mrs. Swindell signed the original note, since discharged, and the deed of trust. This alone, however, would certainly not create a partnership, either in fact or by estoppel. It is reasonable to suppose that Mrs. Swindell joined in the execution of the note as an accommodation maker and that her signature to the deed of trust was required as a precaution against the possibility that she might assert a dower interest in the farm machinery. It is also shown that Mrs. Swindell sometimes took the weekly payrolls to the plantation headquarters and obtained cash advances for their payment, picked up the annual statements of the account, and discussed these statements with the bookkeeper. In our view none of Mrs. Swindell’s activities go beyond the assistance that a wife might naturally contribute to the conduct of her husband’s business.

Other evidence effectively rebuts the notion that a partnership existed. Both the Swindells disclaim that relationship. The farm machinery was owned by the husband alone. It is not indicated that the wife had any voice in the management of the farm. The account was in fact carried upon the appellants’ books in the name of the husband only. Mrs. Swindell operated a small store on the place as her own property; her rental payments to the appellants were not carried as a part of the furnish account. The fire insurance policy upon the store’s fixtures and merchandise was payable to Mrs. Swindell. On the record as a whole we are convinced that Mrs. Swindell was not a co-owner of her husband’s business and was therefore not a partner. Ark. Stats. 1947, § 65-106.

Affirmed.


text:
    Callaway v. Cherry.
    5-1615
    314 S. W. 2d 506
    Opinion delivered June 23, 1958.

      Loohadoo, Gooch <& Loohadoo, for appellant.

      McMillan <& McMillan and Otis II. Turner, for appellee.
   George Rose Smith, J.

This case arises from a traffic collision that occurred in Clark county on November 11, 1957. The proof shows that as the plaintiff-appellant, Callaway, was turning to his left to leave the highway his car was struck by one that was being driven by Neil Cherry, who was accompanied by his mother, Irene Cherry, and his cousin, Don Rodgers. The jury found that Callaway, Mrs. Cherry, and Rodgers sustained personal injuries.

Callaway asserted in his complaint that the three -occupants of the Cherry car were engaged in a joint enterprise, but at the close of the plaintiff’s proof the trial -court ruled that the evidence tending to show a joint enterprise was not sufficient to present a question for the jury. At the end of the trial the other issues raised by the complaint and the defendants ’ cross-complaints were submitted to the jury upon special interrogatories. The jury apportioned the total negligence in the ratio of 56 per cent to Neil Cherry and áá per cent to Callaway, found that neither Mrs. Cherry nor Don Rodgers was guilty of any negligence, and, as between Neil Cherry and Don Rodgers, found willful and wanton misconduct on Cherry’s part. The court entered a judgment fixing the liability of the various parties in accordance with the verdict.

The direct appeal involves only that part of the judgment by which Mrs. Cherry recovers damages of $10,000 from Callaway. Although Mrs. Cherry was found not to have been negligent herself, the appellant insists that the court erred in taking from the jury the issue of joint enterprise, whereby Neil Cherry’s negligence might have been imputed to his mother. We are of the opinion that this contention must be sustained.

The Cherry car was owned by Mrs. Cherry’s husband, who lived with his family in the city of Waldron. The Cherrys’ daughter, Sharon, was attending college at Arkadelphia and had been at home for a week-end visit. On the day of the accident the Cherry party had driven Sharon back to the school at Arkadelphia and were returning to Waldron when the collision took place. The sole purpose of the trip was to take Sharon to the college. Neil Cherry, who was driving the car, was a few days past eighteen years old and lived with Ms parents. Don Rodgers, who was sitting next to the driver, was only seventeen and had gone along ‘ ‘ just for the ride ’ ’; Callaway has abandoned his contention that Don shared in the asserted joint enterprise. Mrs. Cherry evidently knows how to drive, but at the time she was riding in the back seat. Called as a witness by the plaintiff, she testified that she would not have hesitated to reprimand her son if he had driven too fast. The clear implication of her testimony is that she expected Neil to obey her.

Upon this proof it was for the jury to say whether Mrs. Cherry’s right and power to control the actions of her minor son were sufficient to make her liable for his negligence. The situation is not unlike that considered in Minor v. Mapes, 102 Ark. 351, 144 S. W. 219, 39 L. R. A. N. S. 214, where we upheld the liability of a husband who was being driven by his wife. After pointing out that a guest is not ordinarily liable for the carelessness of a driver over whom the guest exercises no control, we stated: “This rule cannot, however, be. extended so as to afford an avenue for the husband’s escape from liability on account of negligent act of his. wife or minor child with whom he is driving in an automobile or other vehicle. He is presumed to exercise-some control over them under those circumstances, at least to the extent of preventing an act of negligence-which is calculated to result in injury to other persons,, and it is his positive duty to do so.” The case is perhaps not as strong when a mother rides with her minor son, but we are unwilling to say that fairminded men would necessarily conclude that the power of control is absent. Our holding in Lockhart v. Ross, 191 Ark. 743, 87 S. W. 2d 73, is easily distinguishable, for there the son was a man of forty-five and owned the car in which his mother was riding as his guest. We observed that there was “a total want of evidence” to show that the mother had any control over the use of the automobile.

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

Neil Cherry took a cross appeal and contends that there is no substantial evidence to support the jury’s finding that he was guilty of willful and wanton misconduct and was therefore jointly liable with Callaway for the $2,000 judgment awarded to Don Rodgers. We think that the testimony about Cherry’s greatly excessive speed warranted the submission of this issue to the jury. About a quarter of a mile from the scene of the accident young Cherry had passed another car which was traveling at 45 or 50 miles an hour. One of the occupants of this car testified that the Cherry vehicle was traveling very fast; “that car was just rocking when it passed me.” Another stated positively that Cherry was traveling at least 90 miles an hour. About the same estimate was given by the plaintiff. We do not intimate that any violation of the 60-mile-an-hour speed limit justifies a finding of willful and wanton misconduct, but “the difference between gross negligence and willful and wanton misconduct is so narrow and indistinct that in many instances the question is one for the jury.” Froman v. J. R. Kelley etc. Co., 196 Ark. 808, 120 S. W. 2d 164. Without attempting to lay down an inflexible rule on the subject, we hold that the testimony in this case warranted the court’s submission of the issue to the jury.

The judgment is affirmed on cross appeal, but on direct appeal the judgment is reversed and the cause remanded for a new trial. Upon remand the controversy between Callaway and Mrs. Cherry will be subject to a retrial upon all issues, but the disputes among the various other litigants have been settled by the original verdict and judgment. On this procedural point see Martin v. Street Imp. Dist. No. 349, 180 Ark. 298, 21 S. W. 2d 430; Oklahoma Gas S Elec. Co. v. Hofrichter, 196 Ark. 1, 116 S. W. 2d 599; Manzo v. Boulet, 220 Ark. 106, 246 S. W. 2d 126.

Harris, C. J., and MoPaddin, J., dissent to the affirmance on cross appeal.


author: Paul Ward, Associate Justice.

text:
    York, Admx. v. Hampton.
    5-1618
    314 S. W. 2d 480
    Opinion delivered June 23, 1958.

      Paul K. Roberts, for appellant.

      B. Ball, for appellee.
   Paul Ward, Associate Justice.

This litigation is over the proceeds of a $2,000 insurance policy on the life of Felton Hampton who was killed by his wife. The principal question is whether or not killing was justifiable.

The deceased, an employee of the Bradley Lumber Company, took out the insurance policy in question, payable to his wife who is the appellee here. Thereafter, on June 24, 1956 he was shot by his wife and died a few days later. Ada York, appellant, was appointed administratrix of the estate of the deceased.

On March 22, 1957 appellee filed suit against the insurance company, making appellant a party defendant. The insurer paid the amount of the policy into the registry of the court, and the suit was dismissed as to it. Upon trial the jury returned a verdict in favor of appellee. Appellant now urges a reversal on three grounds.

One. It is contended that there is no substantial evidence to support the jury verdict. There is no objection to any of the court’s instructions, so the question presented to the jury on this issue was whether the killing was unlawful or whether it was justifiable. If the killing was unlawful and unjustifiable recovery is prohibited by public policy. See: Inter-Southern Life Insurance Company v. Butts, 179 Ark. 349, 16 S. W. 2d 184 and Horn v. Cole, Administrator, 203 Ark. 361, 157 S. W. 2d 787. It follows therefore that the jury found the killing was justifiable, and, we think, there is sub-stantial evidence in the record to support that finding.

Other than appellee there were no eye witnesses to the killing, which took place at night. Some neighbors who heard screaming and who were told by appellee that she had shot her husband went to the home of deceased and found him on the floor with several gun shot wounds in the upper part of his body. They also found a pistol on the floor near the body of deceased. In her own defense appellee stated: “I don’t know who fired the shot, but he was fighting me. We were tussling and lie started fighting me. He was quarrelling over my money which I and my little boy made picking tomatoes. That Saturday Felton got a case of beer from somewhere and came home and put some of it in a bag and took it to the ball game. After the ball game he came home and because I would not tell him where my son’s and my money was he hit me with a piece of axe handle while I was in bed and I jumped up and we got to scuffling and he cursed me. He went to the dresser and got the pistol out and we scuffled and the gun went off. When he struck me I jumped up from the bed and he told me he was going to kill me, and cursed me and got the gun and I scuffled with him. I am not denying that I fired the shots that killed him. I was scared and hysterical and did not know what had happened until it was over. I would not have hurt him had I not been in fear of my life. He was drunk. He was cursing me.” There was other testimony indicating that the deceased had been drinking beer.

Two. We can not agree with appellant that the court erred in allowing appellee to ask appellant whether or not she had testified when appellee was tried for murder. The answer was in the affirmative. No other information was elicited or obtained. While the question and answer might not have been relevant, we are unable to see how any prejudice resulted. In support of her contention • appellant cites Smith v. Dean, 226 Ark. 438, 290 S. W. 2d 439, but we fail to see in it any application here. There it was merely held that a judgment is not admissible to prove the facts upon which it was based. Here no judgment was introduced and there was no attempt to prove any facts.

Three. Over appellant’s objections appellee was allowed to introduce the testimony of several witnesses to the effect that deceased had the reputation of being violent and turbulent. We think this testimony was relevant to the issue of whether appellee or the deceased was the aggressor.

The case of St. Louis I. M. & S. R. Co. v. Stroud, 67 Ark. 112, 56 S. W. 870, cited by appellant does not support her contention. There it was stated that “No evidence is allowed of particular acts of good or bad conduct, etc.” No such evidence was involved here. In the cited case it was stated that ordinarily evidence of general character is not admissible in civil eases, but it also recognized an exception where “the action involves the general character of the party, or goes directly to effect it.” We think the case under consideration falls within that exception. The vital question here was whether appellee was justified in killing her husband, and this question was closely connected with who was the aggressor. For that reason we think the questioned testimony was competent.

Affirmed.