text:
    Alfreddie JACKSON v. STATE of Arkansas
    CR 76-24
    536 S.W. 2d 716
    Opinion delivered May 24, 1976

      James L. Hall Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Alfreddie Jackson was found guilty of possession of marijuana with intent to deliver it in violation of Ark. Stat. Ann. § 82-2617 (a) (1) (ii). It was charged that he had possession of more than one ounce with intent to sell. He states the case thus:

On August 25, 1974, Officer Gaylon M. Barton of the Warren Police Dept, received word that Alfreddie Jackson had some marijuana in his possession. Officer Barton and Officer Randy Peek, also an officer with the Warren Police Dept., then rode around looking for Appellant Jackson. They spotted him at a local gas station at around noon and pulled in to confront him with the information. Appellant denied having any marijuana and consented for the officers to search his car. Appellant got in his car, unlocked the glove box as requested, then suddenly started his car and took off at a high rate of speed from the service station.
The officers then jumped into their cars and pursued him at relatively high speeds over a meandering course of ten to twelve blocks. Towards the end of the chase Officer Peek fired several warning shots, the Appellant failed to negotiate a corner, ran into a ditch and the chase was ended.
Upon arresting the Appellant the officers found a bag beside the Appellant’s car. The bag contained six individual baggies of vegetable substance which tested out positive as marijuana, the total weight of which was 2.05 ounces.

Appellant asserts two points for reversal. We find merit in neither and affirm the judgment. We will discuss the points in the order they are argued.

The first point challenges the admissibility into evidence of a statement of Officer Barton, on the ground that it was inadmissible hearsay. The statement questioned was “I had information that he [Jackson] had marijuana in his possession.” This testimony explained the action of the officer in seeking out and confronting Jackson. For this purpose, it was admissible. Sexton v. State, 155 Ark. 441, 244 S.W. 710; Trotter v. State, 215 Ark. 121, 219 S.W. 2d 636; Bird v. State, 175 Ark. 1169, 299 S.W. 40. See also, Powell v. State, 231 Ark. 737, 332 S.W. 2d 483; Lynn v. State, 169 Ark. 880, 277 S.W. 19. It may well be that appellant would have been entitled to have the testimony limited to the purpose for which it was admitted, but he is in no position to complain that it was not, because he did not ask the court for a limiting instruction. Amos v. State, 209 Ark. 55, 189 S.W. 2d 611.

Appellant also contends that the evidence was not sufficient to support the jury’s verdict against him. He argues that there is no evidence of his intent to deliver the marijuana found by the officers. Appellant testified that he knew nothing about the marijuana. There was no evidence that he had made or attempted any delivery or sale on this or any previous occasion. He says that, at best, the state’s evidence shows him to be guilty of simple possession of marijuana, and that we should take judicial notice that the quantity found would equal the approximate amount used in two packages of ordinary cigarettes and that this amount is far from being inconsistent with the use by a single person. He urges that the circumstantial evidence of his intent does not exclude the reasonable hypothesis that he did possess the marijuana for his own use and left the jury to speculation and conjecture as to intent.

We do not agree with this argument. In the first place we are unwilling to extend judicial notice as far as appellant would have us do. Appellant’s argument overlooks the impact of the “rebuttable presumption,” actually “justifiable inference,” provided by Ark. Stat. Ann. § 82-2617 (d) (Supp. 1975). We treated the question of statutory presumptions in this act in Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634. In that act, the legislature made a determination somewhat contrary to the facts of which appellant urges that we take judicial notice. While heroin was the substance involved in Stone and the quantity stated as giving rise to the justifiable inference in charges pertaining to that drug was 100 milligrams, we have no hesitation in saying that the rationale of Stone is equally applicable where possession of marijuana is involved. Practices and usages in relation to marijuana are certainly not yet such a matter of common knowledge that the courts may take judicial notice of the quantities that may be more consistent with individual use than with distribution. In such a case, in the absence of evidence contradictory of the legislative declaration or showing that the legislative fact-finding was not upon a rational basis, we cannot overturn the act or refuse to apply it.

Although we have not previously addressed the application of the Stone precepts to marijuana, and are aware that courts of other jurisdictions have rejected similar legislative acts, we have no hesitation about the application of the Stone rationale where marijuana is involved, noting that other jurisdictions have also sustained such presumptions. See, e.g., State v. Kaplan, 23 N.C. App. 410, 209 S.E. 2d 325 (1974); State v. Garcia, 16 N.C. App. 344, 192 S.E. 2d 2 (1972); State v. Birdwell, 6 Wash. App. 284, 492 P. 2d 249 (1972). We do not agree with the suggestion that the statute invades the accused’s right against self-incrimination. We rejected that premise in Stone because evidentiary rebuttal of the justifiable inference may come from testimony other than that of the accused.

This brings us to a consideration of the proper application of the justifiable inference. It cannot be stated in the statutory language in a jury instruction. French v. State, 256 Ark. 298, 506 S.W. 2d 820. We have, moreover, recognized that the justifiable inference, while sufficient basis for submitting the question of intent to the jury, may be overcome by evidence which creates a reasonable doubt that the person charged possessed a controlled substance with intent to deliver in violation of the statute. Stone v. State, supra; French v. State, supra. The question of reasonable doubt, however, is aiways for the jury, never for the trial judge or the appellate court on review. Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733; Cox v. State, 254 Ark. 1, 491 S.W. 2d 802, cert. den. 414 U.S. 923, 94 S. Ct. 230, 38 L. Ed. 2d 157 (1973). Credibility is also a matter for the jury. King v. State, 194 Ark. 157, 106 S.W. 2d 582. See also, State v. Birdwell, supra; State v. Fitzpatrick, 5 Wash. App. 661, 491 P. 2d 262 (1972). This was a case where the evidence was sufficient to submit the question of intent of the jury, particularly in view of the fact that appellant’s real defense was that his possession was unwitting. See, State v. Birdwell, supra.

The judgment is affirmed.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    NORTH LITTLE ROCK HUNTING CLUB et al v. D. L. TOON and Nancy Stephens TOON
    76-14
    536 S.W. 2d 709
    Opinion delivered May 24, 1976

      Wilson, Blaney & Dougherty, P.A., by: Mike Wilson, for appellants.

      William E. Johnson, for appellees.
   J. Fred Jones, Justice.

This is an appeal by members of the North Little Rock Hunting Club from a chancery court decree canceling a lease on some real property in Ashley County.

The facts appear as follows: Dr. D. L. Mask and his wife owned some real property in Ashley County and on May 1, 1964, they leased a portion of it for a period of ten years with an option to renew for an additional ten year period. On March 7, 1969, the Masks again leased the property under a written lease appearing as follows:

D. L. MASK AND HIS WIFE GLADYS MASK
TO
J. N. GATHRIGHT, ACTING IN PRESIDENTIAL CAPACITY AND ROY HARPER, ACTING AS SECRETARY AND TREASURER, RESPECTIVELY FOR THE NORTH LITTLE ROCK HUNTING CLUB
This lease entered into this 7 day of March 1969, by and between D. L. Mask and his wife Gladys Mask as Lessors, and J. N. Gathright, acting in presidential capacity and Roy Harper, acting as secretary and treasurer, respectively, for the North Little Rock Hunting Club, designated hereinafter as lessee,

WITNESSETH:

One: That Lessors for the terms and purposes and considerations hereinafter expressed does [sic] hereby lease, let and demise unto the lessees North Little Rock Hunting Club, North Little Rock, Arkansas, for the purposes of Hunting and Recreation, all the lands contained in the Bearhouse Stock Farm, located in Ashley County, Arkansas, and more particularly described as land lying in the North West [sic] Quarter of the Southwest Quarter of Section 20, Township 15 South, Range 5 West, together with one four room frame house, and one 525 gallon butane gas tank, and all plumbing and piping, situated upon a plot of land lying in the North West [sic] Quarter of the Southwest Quarter of Section 20, Township 15 South, Range 5 West, Ashley County, Arkansas, and further described as beginning at the North West [sic] corner of the yard fence on the Dr. Mask place, thence North Four Hundred and Twenty Feet, thence one hundred and five feet East, then “ Four Hundred and twenty feet South to yard fence, .hence one hundred and five feet along said fence to place of beginning, being a parcel of land one half acre wide East and West and two acres long North and South.
Two: The lessors do hereby lease, let and demise the said herein described lands to the lessee for the purposes of hunting and recreation and agrees [sic] to allow no other parties any hunting rights upon said land.
Three: The lessors hereby agree to lease, let and demise unto the lessees, the above described lands for a period of ten years beginning December 31, 1975, and ending December 31, 1985. said above described lands, the Nine Hundred Dollars to be paid upon the execution of this lease.

Four: The lessees agree to pay the lessors the sum of Nine Hundred Dollars, for the ten year lease upon the

Five: The lessors agree to furnish water at the four room frame house hereinbefore mentioned from a well located on the premises, or from a well or wells located on land adjacent to said house.
Six: The lessors agree to pay the taxes on the herein described lands during the term of this lease and lessor at his option may carry insurance upon said house, and lessors further agree that this lease runs with the land for the period of time herein set forth.
Seventh: It is agreed by the lessors that the lessees shall have quite [sic] enjoyment of said lands and shall at all times have the right of ingress and egress unto and upon above described lands.
Eighth: Lessors warrant they have absolute title to the herein described lands and agree that they will during the term of this lease defend same and hold lessees harmless in its possession of the lands hereof.
Ninth: It is agreed by the lessors that lessees shall have the right to make such improvements to the herein described house as lessee may deem fit or desire, said improvements to remain and revert to lessors upon the termination of this lease if the term of the option extended herein is not exercised.
Tenth: Lessees agree to return the house and improvements herein described in good repair excepting ordinary wear and tear or loss by fire or unavoidable casualty.
Eleventh: Lessors hereby agree to extend this lease for the sum of ten dollars paid to them at the signing and execution of this lease for the option to lease said lands for another ten year period to begin December 31, 1985, and ending December 31, 1995.
Witness our hands and seals this 7th day of March, 1969.

The copy of this lease appearing in the record appears to be a photostatic copy of the lease as filed for record in Book M-48 at page 121 of the records in Ashley County at 1:00 p.m. on March 7, 1969.

On August 19, 1970, the Masks sold 80 acres which included the lands previously leased as above set out, to the appellees Dr. D. L. Toon and his wife and transferred title to Dr. and Mrs. Toon by warranty deed, which was duly filed for record on August 19, 1970. On April 16, 1975, Dr. and Mrs. Toon filed a complaint in the chancery court against defendants designated as follows:

North Little Rock Hunting Club, J. N. Gathright, Bill Lehman, and Ray Harper, or their successors, individually and as officers, trustees, and directors of North Little Rock Hunting Club, and all unknown members, trustees, or officers of North Little Rock Hunting Club and W Vi SW !4 of Section 20, Township 15 South, Range 5 West, Ashley County.

Dr. and Mrs. Toon in their complaint alleged that they were the owners and entitled to possession of the property they acquired from the Masks. They alleged that Dr. and Mrs. Mask attempted to lease a part of the property to the North Little Rock Hunting Club; that the purported lease agreement was void and unenforceable as an attempt to convey real property interest to an unincorporated association which has no power to acquire property; that the lease was vague and indefinite as to the property intended to be conveyed; that the lease was oppressive and inequitable in its terms and conditions, specifically as to the rentals called for thereunder, which provision would unjustly enrich the defendants; that the language in the lease was not sufficient to convey any right or interest in and to the lands and was not legally sufficient to bind the successors and grantees of the lessors. The complaint then set out in the alternative various allegations as to breach of the lease agreement as to reasonable care in guarding the property against waste and damage. They prayed for cancellation of the lease and that the title to the property be quieted and confirmed in them.

The appellant-defendants demurred to the complaint on the ground that it did not state a cause of action against them and the demurrer was set for hearing on June 2, 1975. On May 22, 1975, the appellant-defendants filed an answer and counterclaim. In answer they reaffirmed their demurrer and denied the allegations in the complaint by general denial. In their counterclaim they alleged that the appellee-plaintiffs had shut off their access to water in violation of the lease agreement, and had cut all the oak timber from the leased premises thereby damaging valuable hunting rights and they prayed damages and for all proper relief.

Following a reply to the counterclaim, the matter was set for trial on September 2, 1975, reset for September 4, 1975, and continued to October 14, 1975.

In answer to interrogatories propounded by appellees’ attorney, the appellants’ attorney stated that the North Little Rock Hunting Club was an unincorporated association and listed the officers and directors as Danny Fortner, president; Marvin Cash, vice-president; and Jimmy Hickman, secretary-treasurer.

Dr. D. L. Toon’s discovery deposition was placed in evidence by the appellants’ attorney after which the appellants filed a motion for summary judgment. The appellants filed a trial court brief in support of their motion for summary judgment and among other things they stated in their brief as follows:

There is no argument, for the purpose of this motion, that the parties are properly before the court and that plaintiffs acquired the property as alleged in the Complaint. The lease agreements, which are the subject to the action, are attached to the Complaint. Paragraph 4 of the Complaint consists entirely of allegations which are purely a question of law. Paragraph 4 (a) alleges that the defendant Club is an unincorporated association which does not have the power to acquire property. At common law, voluntary unincorporated associations may hold real property either as donees of the legal title or as the beneficiaries of a trust. Town of Gravette v. Veach, 186 Ark. 544, 54 S.W. 2d 704.

When the case came on for hearing on October 14, 1975, the issues were disposed of as a matter of law and the record of the procedure appears as follows:

COURT: This is in the Chancery Court of Ashley County, Arkansas, D. L. Toon and Nancy Stephens Toon, plaintiffs, v. North Little Rock Hunting Club, et al, Case No. 75-111. The plaintiffs are represented by Mr. William Johnson and the defendants by Mr. Mike Wilson, Little Rock. Are you gentlemen ready?
MR. JOHNSON :Yes, your Honor.
MR. WILSON: Yes, your Honor.
COURT: Any preliminary matters now, gentlemen? I notice a motion for summary judgment here. What is your position on that at this point?
MR. WILSON: If your Honor please, that motion was filed for the purpose of narrowing the issues and the court had indicated that such motions were not exactly looked upon with favor in this court.
COURT: They are looked upon with favor if you can substantiate it.
MR. WILSON: Right. And I understand that the court wished to hear the parties in person as to the testimony to be offered now. That there may be a question of law that will dispose of the case as to whether this unincorporated association may hold title to this property or as the lessee of the property and we have offered to stipulate and will stipulate that the association is unincorporated.
COURT: How about you, Mr. Johnson?
MR. JOHNSON: Your Honor, I am in agreement with Mr. Wilson in regard to this particular legal issue. I feel like the case may very well be disposed of on this issue alone as to whether an unincorporated association can be the lessee in this case and of course, one of the particular things alleged in the petition that was filed by Dr. and Mrs. Toon is that the lease is void for these reasons that the hunting club is an unincorporated association.
COURT: If the court were to hold that the lease was void on that basis, Mr. Wilson, where would you be?
MR. WILSON: Your Honor, we would be in a position to appeal immediately on that question alone.
COURT: The case would be decided insofar as the issues are concerned as to you. Right? If the court were to hold that an unincorporated association could not hold a valid lease.
MR. WILSON: That’s right.
COURT; As a matter of law.
MR. WILSON: Yes, sir.
COURT: Do you agree with that, Mr. Johnson?
MR. JOHNSON: Yes, sir, I do.
COURT: Well then, gentlemen, the court doesn’t mind deciding that if you have got some authority for me this morning. I haven’t researched the point. Now assume for a moment that the court were to hold that the association could hold a valid lease then we are ready to proceed with other issues. Is that correct?
MR. WILSON: Yes, sir.
MR. JOHNSON: Either to stand on the court’s ruling and appeal or to proceed with the development of the remaining issues as to whether these have been breached.
COURT: Very well, gentlemen, let’s hear you on this point then.

It was stipulated that the North Little Rock Hunting Club was an unincorporated association, and the two leases and warranty deed were stipulated into the record, after which the chancellor heard the arguments in chambers and, following a recess while the chancellor read the decisions cited, the record continues as follows:

COURT: Let this record reflect that counsel and the court have been in chambers and that the issue of the validity of the leases involved in this lawsuit have been discussed and that under the authority and direction of Lael v. Crook, 192 Ark., page 1115, this court finds as a matter of law that the two leases now in evidence, Exhibits 2 and 3, are invalid for the reason that the granting clause thereof conveys an interest in real property to an unincorporated association and the holding of the Crook case being that such a conveyance is invalid, it is noted by this court that the opinion in Gravette v. Veach was specifically overruled insofar as it was in conflict with the Crook case. * * * For that reason, gentlemen, the court is going to dismiss this case at this point. There would be no further issue remaining, would there, Mr. Wilson?
MR. WILSON: Of course, your Honor, if the Supreme Court reverses this court’s decision there will be several other issues.

We now consider, in the order designated, the points raised by the appellants for reversal.

I

The trial court erred in holding that the leases marked Exhibits 2 and 3 are invalid for the reason that leases convey an interest in real property to an unincorporated association incapable of holding as lessee.

The appellants argue under this point that the case at bar is not controlled by Lael v. Crook, 192 Ark. 1115, 97 S.W. 2d 436 (1936), because Lael involved a conveyance of title to real property whereas the case at bar only involves the encumbrance of title by a lease. This argument is unsound and without merit. In Chittim v. Gossett, 148 Ark. 654, 228 S.W. 393 (1921), we said:

A lease is properly a conveyance of a particular estate in lands, whether for life or for years or at will when reversion is left in the grantor. 2 Blackstone Comm. 367; Tiedeman on Real Property, § 772.

II

The trial court misconstrued the terms of the lease in that the leases were signed on behalf of the North Little Rock Hunting Club by Trustees for the hunting club, acting in a trust capacity.

The lease here involved and as above set out, is somewhat ambiguous on its face as to whether it was to the named individual officers in trust for the club, or to the club as lessee. No question as to a trust relationship was raised at the trial level but as we read the record, that question was specifically eliminated by submitting the matter to the chancellor strictly on a question of law as to whether the hunting club, as an unincorporated association, could, in its own name, acquire and hold title to real property in Arkansas. The chancellor, under authority of Lael v. Crook, supra, held that it could not and we are of the opinion the chancellor was right.

Ill

The trial court erred in holding that appellees were not estopped from attacking the validity of the leases.

This assignment is likewise without merit. In American Cas. Co. of Reading, Pa. v. Hambleton, 233 Ark. 942, 349 S.W. 2d 664 (1961), this court said:

A party who by his acts, declarations or admissions, or by failure to act or speak under circumstances where he should do so, either designed or with willful disregard of interests of others, induces or misleads another to conduct or dealings which he would not have entered upon but for such misleading influence, will not be allowed, because of estoppel, afterwards to assert his right to the person so misled. Dobbins v. Martin Buick Co., 216 Ark. 861, 227 S.W. 2d 620; Williams v. Davis, 211 Ark. 725, 202 S.W. 2d 205; Rogers v. Hill, 217 Ark. 619, 232 S.W. 2d 443.

The record in the case at bar fails to show that appellees acted or failed to act in such manner as to mislead appellants to their detriment, and we conclude that the decree must be affirmed. We note from the record, however, that the appellees tendered into the registry of the trial court a refund of the unearned portion of the lease rental paid in advance and the chancellor’s decree failed to dispose of same. We are of the opinion that such refund is equitable under the evidence in this case and the cause should be remanded for the purpose of making same.

The decree is affirmed and the cause remanded for the purpose above stated.

      This lease was to the same party or parties as was the first lease.


author: Conley Byrd, Justice.

text:
    Eva Lotspeich ZAPPIA, as an individual and as trustee for her children v. Arthur F. GARNER et al
    76-6
    536 S.W. 2d 714
    Opinion delivered May 24, 1976

      Loyd Harper, for appellant.

      Murphy, Blair, Post & Stroud, for appellee.
   Conley Byrd, Justice.

Appellant Eva Lotspeich Zappia, as an individual and as trustee for her children, brought this action against appellees Arthur F. Garner and Inez Gasperson to cancel a mining lease for breach of an implied warranty to search and develop the mineral rights under the lease. From a decree in favor of appellees comes this appeal.

The record shows that in 1953 appellant’s mother executed a mineral lease to appellee Arthur F. Garner covering some 1100 acres. The lease gave to Garner, as lessee, a:

“7/8 interest in and to all of the oil and gas, (1/8 barrel royalty), the iron, lead, zinc and manganese, ore mining there will be a royalty of 25 cents per long ton paid to Lessor and 5 cents a ton on all limestone produced in and under and that may be produced from . . . lands situated in Sharp County, State of Arkansas ...”

Garner testified that in 1953 or 1954 he sunk a 20 foot shaft into the property and hired a driver to carry three or four car loads of iron ore to Williford for shipment to Birmingham, Alabama. In 1956 or 1957 he went on the property to take some limestone samples. After his conveyance to appellee Inez Gasperson and her husband, now deceased, in 1965, he referred all persons interested in the minerals to the Gaspersons. Inez Gasperson testified that she and her husband had had several people look at the property, but nothing had been done to develop the minerals.

The rule with respect to the implied warranty is set forth in Millar v. Mauney, 150 Ark. 161, 234 S.W. 498 (1921), as follows:

“. . . In the construction of mineral leases such as is involved in this case, the authorities uniformly hold that there is an implied obligation on the part of the lessee to proceed with the search and also with the development of the land with reasonable diligence according to the usual course of such business, and that a failure to do so amounts in effect to an abandonment and works a forfeiture of the lease.
“. . . The reason for the rule is that where the lessor receives as royalty or rental a certain percentage of the output of the lands as his only compensation for their use by the lessee for exploration and development, when such work ceases, his compensation ends, and the consideration for the lease fails. In such contracts the lessee usually expressly undertakes, as was the case here, to ‘diligently and faithfully prosecute the work of development,’ and, if there is no express covenant to that effect, as we have seen, such a covenant will be implied from the very nature of the contract. Unless it is otherwise provided in the lease, it is always in the contemplation of the parties to such a contract that the lessee is able, financially and in every other way, to perform his undertakings in the time and manner specified in the contract. If, after a reasonable time, he fails to begin and to continue the work of development and exploration provided in the contract, but nevertheless holds possession and exercises control over the leased lands for promotion purposes or financial exploitations, he has by such conduct worked a forfeiture of his rights under the lease and may thereafter be treated as having abandoned his contract and as holding the land as a trespasser adversely to the lessor. In other words, the lessee under such a contract will not be allowed to speculate upon the chance of being able at some indefinite and unreasonable time in the future to begin and to continue the work of exploration and development required of him under the covenants of his contract.”

From the foregoing authority it readily appears that the trial court erred in not holding that the appellees had forfeited and abandoned the mineral lease.

Appellees suggest that appellant is estopped by laches to assert the forfeiture and abandonment at this late date. We find no merit to this contention because the burden of performance was upon appellees under the implied obligation.

Neither do we find any merit in appellees’ suggestion that they should be given an additional period, in any event, to develop the minerals. In the first place, they showed no present ability to develop any of the minerals. Furthermore, as pointed out in Millar v. Mauney, supra, the law frowns upon the chance speculation by a lessee that in the indefinite future he may be able to begin exploration and development.

Reversed and remanded for entry of a decree not inconsistent herewith.


author: Frank Holt, Justice.

text:
    CANAL INSURANCE COMPANY v. Mary Lou (Craig) HALL
    75-379
    536 S.W. 2d 702
    Opinion delivered May 24, 1976

      Rieves, Rieves & Shelton and McDonald, Kuhn, Smith, Gandy, Miller & Tail, for appellant.

      Nance, Nance, Fleming & Wood, for appellee.
   Frank Holt, Justice.

In 1972 appellee suffered injuries when she was involved in an automobile accident with a vehicle driven by William Clark. Clark’s vehicle, owned by him, was leased to Southern Trucking Corporation. Appellant Canal Insurance Company insured all trucks used by Southern. Appellee was awarded a $30,000 default judgment against Clark. Appellee’s attorneys then notified the appellant-insurer of the default judgment and demanded payment. Upon refusal, appellee filed a direct action against appellant for the $30,000 judgment together with 12% penalty and attorney’s fee. Appellant answered and denied coverage alleging, inter alia, the affirmative defense that the judgment was void for lack of due process. The trial court found, inter alia, “That plaintiff exercised that degree of diligence in determining the last known address of William Clark which was reasonably calculated to give him actual notice of the pendency of the cause of action. That service was obtained on William Clark under the Arkansas Long Arm Statute and the judgment obtained was valid, and not void ab initio.” Appellant argues for reversal that appellee failed to exercise the reasonable diligence required in determining the last known address of Clark in order that the service might be reasonably calculated to afford him notice of the action and, therefore, the judgment based on the purported service is void. We must agree.

Service of process on Clark was first attempted at his Arkansas address and was returned non est. Subsequently, appellee petitioned the court for instructions as to the manner in which Clark should be served. It was alleged in the petition and accompanying affidavit that Clark was a domiciliary of Arkansas at the time of the accident. However, he had since moved to the last known address of 849 N. Dunlap, Memphis, Tennessee. The court, pursuant to Ark. Stat. Ann. § 27-2501, et seq., our “long arm statute,” directed a mode of service at Clark’s last known address but made no specific finding as to his last known address. On June 18, 1973, service of process was had on the Secretary of State. On June 19, 1973, a warning order was first published in the Evening Times of Crittenden County and was published for three consecutive weeks thereafter. On June 21, 1973, the Secretary of State wrote the defendant, with process enclosed, at 849 N. Dunlap, Memphis, Tennessee. This letter was returned marked “moved, not forwardable.” On June 22,1973, a letter was written by appellee’s attorneys to Clark at this address advising him that service had been had on the Secretary of State. This letter was also returned. On June 21, 1973, the sheriff of Crittenden County mailed a copy of the complaint and summons to the defendant at this address and it was returned marked “undelivered.” The envelope was marked “moved and left no address.” A second copy was mailed to Clark at this same address and the receipt was signed for “by Earline Clark, agent for William Clark on July 16, 1973.” Earline is a sister-in-law of William. The sheriff received a certified letter from Frank Clark, William’s brother, containing the original letter mailed to William at the Memphis address. There was a handwritten note by Frank stating “the said party [William Clark] no longer lives at this address.” Without any further attempted service or investigation, a default judgment was taken against William Clark.

Earline testified by deposition at the default judgment proceeding that the last she heard from William Clark was when he left Memphis about three years ago and moved to Arkansas. He had never resided with her or her husband at 849 N. Dunlap. She testified, however, that he had lived “[A]t the other end of Dunlap.” She was not authorized by William Clark to sign for his mail. She signed the receipt because she thought that her husband would know how to contact his brother. Since her husband did not know how to reach him, they sent it back. After Earline acknowledged receipt of the letter addressed to William, neither appellee nor her attorneys contacted Earline.

An official of Southern Trucking Corporation testified that he had information in his files regarding a Memphis address of William Clark’s wife and his former address in Indiana. He stated that appellee’s attorneys had never contacted him with reference to the whereabouts of Clark’s wife or any members of his family. One of appellee’s attorneys testified that his verified petition to the court for instructions as to the proper method of service stated that Clark’s last known address was at 849 N. Dunlap, Memphis, Tennessee. He acknowledged that his information, based on hearsay from an investigator, was an assumption on his part. Also, following the hearsay information that Clark was residing at 849 N. Dunlap, neither he nor anyone else to his knowledge ever went there to confirm his address. Further, appellee testified that the distance between the Memphis address and the West Memphis address of her attorneys is approximately ten miles. The assistance of appellant Canal Insurance Company was not sought as to whether it had a later address for Clark. There was evidence that Clark owned two vehicles. It was admitted that appellee’s attorneys had a copy of the police report regarding the accident and were aware that Clark was listed therein as the owner of a licensed vehicle. It does not appear that any effort was made to check with the Revenue Department or any other licensing bureau to determine Clark’s whereabouts or last known address. Further, none of the employees at the Southern Trucking Company were contacted in an effort to ascertain Clark’s last known address. The investigator was not called as a witness nor his absence accounted for. In that situation there is the suggestion or presumption that his testimony would be unfavorable. Jones v. Jones, 227 Ark. 836, 301 S.W. 2d 737 (1957).

During the first day of trial, one of appellant’s attorneys advised the court that he had received an out-of-state phone call from Clark. Appellant requested several days’ continuance in order to have Clark available. After a recess until the next day, it was stipulated that if Clark were present, he would testify, inter alia, “that he had no knowledge of the suit pending in the original action” and “that he had never lived at 849 N. Dunlap, Memphis, Tennessee.” The stipulated testimony did not admit its truthfulness.

In Halliman v. Stiles, 250 Ark. 249, 464 S.W. 2d 573 (1971), we said:

Where, as in the case at bar, personal jurisdiction over a defendant may be founded on something less than actual notice, statutory service requirements, which are implemented in derogation of common law rights, must be strictly construed and exactly complied with [and] **** burden is on the injured party to investigate into those facts which would normally reveal the address of the nonresident defendant.

See also Morphew v. Safeco Ins. Co., 256 Ark. 809, 510 S.W. 2d 543 (1974).

In the case at bar, we hold, as in Halliman v. Stiles, supra, that the appellee has not demonstrated a sufficient inquiry was made in an effort to ascertain Clark’s last known address and, therefore, he was deprived of “reasonable probable” actual notice which is consistent with and required by due process. Consequently, the default judgment against him is void.

We must again take this occasion to reiterate our disapproval of an attorney testifying in an action in which he is an advocate. McWilliams & Kimes v. Tinder, 256 Ark. 994, 511 S.W. 2d 480 (1974); Watson v. Alford, 255 Ark. 911, 503 S.W. 2d 897 (1974); Montgomery v. 1st Nat 7. Bank of Newport, 246 Ark. 502, 439 S.W. 2d 299 (1969); Old American Life Ins. Co. v. Taylor, 244 Ark. 709, 427 S.W. 2d 23 (1968), and Rushton v. First Nat'l. Bank of Magnolai, 244 Ark. 503, 426 S.W. 2d 378 (1968).

We deem it unnecessary to discuss appellant’s other contentions for reversal. The judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.


author: Elsijane T. Roy, Justice. John A. Fogleman, Justice,

text:
    Arie AUSTIN v. STATE of Arkansas
    CR 75-213
    536 S.W. 2d 699
    Opinion delivered May 24, 1976

      Walker, Kaplan & Mays, P.A., by: Richard L. Mays and Henry L. Jones Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellant Arie Austin assisted her minor son, Anthony Austin, in purchasing an automobile. Because of his minority she purchased the vehicle in her name but gave him possession, and he was to make the monthly payments. On August 1, 1973, appellant purchased a 1973 Pontiac automobile from Cole Pontiac Company in DeQueen, Arkansas, which firm negotiated the financing arrangement through the First National Bank of that same city. The financing statement provided for approximately $4500 to be paid in monthly installments of $149.09 beginning September 1, 1973, for a period of 36 months.

On March 6, 1974, the First National Bank through error advised appellant that her note had been satisfied, that her title was clear of any lien and the legal papers on the car were enclosed with the letter. On March 15, appellant transferred the certificate of title to the car to her son, who used the vehicle as security for a loan obtained later from the Pike County Bank. It was not until April 9, 1974, several weeks after appellant had transferred the title, that the mistake was discovered by First National Bank, and two of its employees contacted appellant in an effort to correct the error. Both testified appellant directed them to see her son (living in Pike County) who she said had the vehicle and title documents. Although First National Bank recovered the automobile, it later had to surrender the car to the Pike County Bank in recognition of the latter institution’s lien. Both the Pontiac Company and the First National Bank are located in Sevier County.

On August 29, 1974, appellant was charged with the crime of disposing of mortgaged property with intent to defraud the lienholder. A jury found appellant guilty, and she was sentenced to six months in the State Penitentiary. From that conviction she brings this appeal.

As error appellant argues that she was entitled to a directed verdict on two grounds. First, that as a matter of law the bank consented to the transfer of the automobile. The second contention is that the evidence is insufficient to sustain the conviction due to the lack of evidence showing criminal intent on the part of appellant.

Appellant was prosecuted under Ark. Stat. Ann. § 41-1928 (Repl. 1964), which provides:

it shall be unlawful for any person to sell, barter, exchange or otherwise dispose of, or to remove beyond the limits of this State or of any county in which a landlord’s or laborer’s lien exists, or in which a lien has been created by virtue of a mortgage or deed of trust, or to which title has been retained by the vendor, any property of any kind, character or description, upon which a lien of the kind enumerated above exists or to which title still remains in the vendor: provided, such sale, barter, exchange, removal or disposal of such property be made with the intent to defeat the holder of such lien or title in the collection of the debt secured by such mortgage, laborer’s or landlord’s lien or retention of title.

This statute is unequivocal in its intendment that, in order for an action to be brought pursuant to its terms, there must be a valid lien upon the property which is sold, bartered, exchanged or otherwise disposed of in the manner explained therein. It is the absence of a lien at the time of the transfer which is determinative of this appeal and which makes it unnecessary to consider appellant’s assigned error except as is relative to this point. It is not denied that appellant incurred a debt for a sum in excess of $4,000. Only three installments were paid by appellant’s son under the financing agreement. This, of course, did not amount to a substantial reduction of the total indebtedness.

Appellee strongly urges that even though appellant’s son was making the payments, she should reasonably have known the indebtedness had not been paid so soon after assumption of the obligation. However, we are bound to a standard of review which requires not only that a criminal statute “ ... be strictly construed in favor of one accused [citation omitted],” but that “[njothingmay be left to intendment and all doubts must be resolved in favor of the defendant in construing such statutes [citations omitted].” Hill v. State, 253 Ark. 512, 487 S.W. 2d 624 (1972). See also Burke v. State, 235 Ark. 882, 362 S.W. 2d 695 (1962), cert. denied 373 U.S. 922, 83 S. Ct. 1523, 10 L. Ed. 2d 421. In related criminal statutory construction we have noted in Lewis v. State, 220 Ark. 259, 247 S.W. 2d 195 (1952), that:

We have consistently followed the universal rule that “criminal statutes are to be strictly construed, and no case is to be brought by construction within a statute unless it is completely within its words . . . [citation omitted].” (Italics supplied.)

Here, albeit by erroneous administrative action, the First National Bank held no lien as contemplated by the criminal statute at the time appellant transferred title to her son. Thus the statute under which appellant was charged and convicted was improperly applied since the property transferred was not that “. . . upon which a lien of the kind enumerated above exists or to which title still remains in the vendor . . . . ” This decision in no way impairs the right of First National Bank to proceed against appellant in a civil action.

For the foregoing reasons the cause is reversed.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I cannot agree that, at the time of the alleged offense, as between the First National Bank and appellant, there was no lien on the automobile. There is no question about the invalidity of the security interest as to third parties who acted in reliance upon the erroneous release. The important consideration is the status of the lien as between the bank and Mrs. Austin. Ark. Stat. Ann. § 41-1928 (Repl. 1964) was not enacted for the protection of third parties. The sole and only purpose of the statute is the protection of the secured party. 15 Am. Jur. 2d 401, Chattel Mortgages § 242. In Arkansas, we have recognized that the question of the validity of the mortgage as to third parties is of no consequence in prosecutions under the statute. Insofar as the existence of the lien or security interest is concerned, the only question is whether there is a valid, enforceable lien as between the parties. McClaskey v. State, 168 Ark. 339, 270 S.W. 498.

In this case, the evidence is quite clear that the release was made through mistake. Viewed in the light most favorable to the state, there is also cogent evidence tending to show that appellant knew it was a mistake and knew that the debt had not been paid. The financing arrangement had been made in August 1973. The amount of the debt was $4500. The 36 monthly payments of $149.09 each commenced on September 1, 1973. The erroneous release was dated March 6, 1974, and the certificate of title on which it was endorsed mailed to appellant. Appellant received the loan papers and thereafter, on March 15, 1974, transferred the title to her son, who later gave a security interest of the automobile to an innocent third party, whose priority was recognized by the First National Bank.

On April 9, 1974, Joe Roberts, the bank’s auditor and Mike Brewer, a loan administration officer of the bank called on appellant. According to Roberts, Mrs. Austin acknowledged she knew she had not “paid off the car,” or “paid off the note.” Brewer testified that appellant indicated that “she knew there was something there that wasn’t right at the time,” and that she realized that she had not paid off the loan on the car. Appellant admitted that she knew that she had not paid off the loan, but said she felt it had been paid because her son was making the payments and she “thought it could have been insurance. ” Of course, resolution of factual questions including appellant’s intent and good faith or the lack of it was for the jury.

Any assertion that the lien was not in effect where it resulted from mistake is based upon estoppel. Where the want of record would not bar a valid lien as between the parties, the mere discharge of the mortgage by release or satisfaction on the record cannot prevent the enforcement of the lien against the mortgagor-borrower where the debt has not actually been paid or satisfied. Lee v. Wagner, 71 Wis. 191, 36 N.W. 597 (1888). The signing of a satisfaction reciting payment of a mortgage debt, when nothing was in fact paid, made through mistake is of no effect. Linn v. Ziegler, 68 Kan. 528, 75 P. 489 (1904). Of course, in Arkansas an unrecorded mortgage is valid between the parties. Barnett v. State, 65 Ark. 80, 44 S.W. 1037; McClaskey v. State, supra. Even equitable mortgages and liens some within the coverage of such statutes. Farmer v. State 18 Ga. App. 307, 89 S.E. 382 (1916); Courtney v. State, 10 Ala. App. 141, 65 So. 433 (1914); Williams v. State, 40 Ala. App. 687, 122 So. 2d 549 (1960). See also, Beard v. State, 43 Ark. 284.

To say the very least, there is evidence of the existence of an equitable mortgage or security interest in spite of the release.

The questions of the intent and good faith of appellant were for the jury. I would affirm the judgment.

      Repealed, Acts 1975, No. 928, § 3, effective January 1, 1976.


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    ARKANSAS ROCK & GRAVEL COMPANY et al v. CHRIS-T-EMULSION Company, Inc.
    76-20
    536 S.W. 2d 724
    Opinion delivered June 1, 1976

      Keith, Clegg & Eckert, for appellants.

      Smith, Williams, Friday, Eldredge & Clark, by: William H. Sutton and Joseph E. Kilpatrick Jr., for appellee.
   George Rose Smith, Justice.

The decision in this case turns upon the meaning of the parties’ contractual reference to “the Spring of 74.” The trial judge considered the phrase to be ambiguous and submitted its meaning to the jury. The verdict was for the plaintiff-appellee, in the amount sued for, which means that the jury agreed with the plaintiff’s interpretation of the contract. For reversal the defendant argues that the court gave incorrect instructions and erred in other respects. We affirm the judgment on the ground that the plaintiff was entitled to recover as a matter of law, there being no issue of fact for the jury.

The plaintiff, Chris-T-Emulsion, successor to Ben M. Hogan Company, is a supplier of asphalt. The principal defendant, Arkansas Rock & Gravel, is a highway contractor. In the summer and early fall of 1973 Arkansas Rock & Gravel was planning to submit a bid to the state highway department for an extensive repair job on Interstate 40. It was too late for the work to be begun in that calendar year. Before submitting its bid Arkansas Rock & Gravel asked Hogan for a price on the asphalt that would be needed. Hogan’s first quotation was not a firm offer. Upon being pressed for a firm price, to be reduced to writing, Hogan on September 29, 1973, wrote the letter-contract now in issue. That letter identified the project by job number, estimated the asphalt to be required at approximately 380,620 gallons, and quoted a price that was essentially 14 cents a gallon plus a freight charge that varied with the three counties that were involved. Hogan’s representative testified that, because asphalt prices were very unstable, he inserted a sentence that the company did not ordinarily use in such letter-contracts: “This quotation is with consideration the material will be used in the Spring of 74.” Arkansas Rock & Gravel endorsed its acceptance upon a copy of the letter and returned it to Hogan. Chris-T-Emulsion succeeded Hogan as the seller.

Arkansas Rock & Gravel was the successful bidder for the repair job and began the work in 1974. Chris-T-Emulsion supplied most of the asphalt at the quoted price, but on June 24 it notified the purchaser by letter that the original quoted price was good only “through the Spring (June 20) of 1974,” and that thereafter the price would be increased to 29 cents a gallon. Arkansas Rock & Gravel protested the increase and refused to pay that price for subsequent deliveries. The plaintiff brought this action for the amount that is admittt dly due if it was entitled to increase its price after June 20.

We do not consider the controlling rules of law to be open to dispute. The construction and legal effect of a written contract are to be determined by the court as a question of law except where the meaning of the language depends upon disputed extrinsic evidence. Security Ins. Co. of Hartford v. Owen, 252 Ark. 720, 480 S.W. 2d 558 (1972). Here there was undoubtedly an ambiguity as to the precise meaning of the phrase, “the Spring of 74,” because dictionaries uniformly recognize that “spring” is popularly considered to be the months of March, April, and May, but scientifically considered to be the period from the vernal equinox (about March 21) to the summer solstice (about June 21). Webster’s Second New International Dictionary (1934); American Heritage Dictionary (1969).

When such a minor ambiguity is involved, the contract does not fail, because the complaining party may fairly be allowed to insist upon the interpretation that is least favorable to him. For instance, in Dolly Parker Motors v. Stinson, 220 Ark. 28, 245 S.W. 2d 820 (1952), we upheld an agreement by which Stinson promised to purchase a new Ford car from a dealer. Even though the particular car to be purchased, among many available models, was not specified, we held that, upon the buyer’s breach of the contract, the seller was entitled to recover the profit that he would have made upon that model which provided him the smallest profit. Similarly, the plaintiff in this case can fairly insist, as it does, upon the definition of spring which is least favorable to it.

There remains the appellant’s principal argument, that the parties knew that the highway department requires that repairs, such as those that the appellant undertook, be made between April 1 and October 31 of each year, when the weather is warm enough for the asphalt to be sealed properly. It is insisted that the parties’ contract was intended to conform to that policy.

The trouble is, this argument runs squarely into the parol evidence rule. That is a rule of substantive law, which prevents a party from proving a prior or contemporaneous oral agreement that contradicts the written contract. Hoffman v. Late, 222 Ark. 395, 260 S.W. 2d 446 (1953). It is true that when the language of a contract is ambiguous, proof of oral negotiations is admissible to show that the language was intended to have “any particular meaning that the words will reasonably bear.” Kerr v. Walker, 229 Ark. 1054, 321 S.W. 2d 220 (1959). But the rule does not allow a party to prove by oral testimony that clear and unambiguous words were subjectively intended to have a meaning not fairly attributable to them. The remedy in that situation is a suit for reformation of the contract. Restatement, Contracts, § 230 (1932).

The pivotal language in the contract before us is the stipulation that the quoted price is “with consideration the material will be used in the Spring of 74.” The appellant insists that those words were chosen as a method of saying that the use of the material was expected to begin in the spring of 1974 and might continue, at the quoted price, at least until October 31 (and perhaps even longer if the work was proceeding at a reasonable rate). It may well be that the purchaser’s representative had that meaning in mind when he endorsed his acceptance upon the letter-contract. If so, it was his obligation to insist that the contract be made to declare his understanding. Instead, he accepted language that cannot be reasonably interpreted to say what he now contends that he intended. As we pointed out in Hojjman v. Late, supra, the justification for the parol evidence rule lies in the stability that it gives to written contracts; for otherwise a party might always testify that an oral understanding was contrary to the obligation he assumed in writing. Here the purchaser signed an essentially unambiguous agreement and must bear the consequences.

Affirmed.

Fogleman and Byrd, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I do not agree that appellants were entitled to judgment as á matter of law. The trial judge properly recognized that there was an issue as to the proper construction of the contract because of ambiguity. There was at least a latent ambiguity and the court submitted the question of the meaning of the parties to the jury by a correct instruction. It seems to me, however, that a cardinal rule of construction should have been stated to the jury and that appellant submitted a correct instruction which would have advised the jury that any doubt or ambiguity about the meaning of the contract was to be resolved against the party who prepared it. See Manhattan Factoring Corp. v. Orsburn, 238 Ark. 947, 385 S.W. 2d 785; Stevenson v. Marques 241 Ark. 321, 407 S.W. 2d 391.

The contention of appellee that a contract was not involved cannot be sustained. All of the testimony shows clearly that all parties, even when testifying, regarded it as a contract, not a quotation or unaccepted offer. The highway contract number was shown as the subject of the letter which constituted the agreement. The approximate number of gallons of asphalt for which the “quotation” was made was stated. It was specified that the material should meet Arkansas Highway Department specifications. The offer or “quotation” required an acceptance and expressed an appreciation, not for the opportunity to furnish a quotation, but for “this business.” This is not a case where orders were invited or where appellee, the offeror, simply offered to supply whatever Arkansas Rock & Gravel Company ordered.

Appellee points up the question involved in construing the words “in the spring of 74” by referring to the duration of the “quote” as being limited “through the spring of 1974” or as being “for the spring of 74.” They are treated in the majority opinion as if they read “during the spring of 74.” Absent the circumstances surrounding the execution, I would agree that the words should be treated as the majority treats them. But, given the circumstances, the circuit court in my opinion correctly recognized that there was evidence from which it could be said that there was a latent ambiguity.

A latent ambiguity arises from facts not disclosed in the instrument. Dorr v. School District No. 26, 40 Ark. 237. It may imply a concealment of the real meaning or intention of the writer which does not appear upon the face of the words used until they are brought in contact with collateral facts. It arises, not upon the words as looked at in themselves, but upon those words when applied to that which they describe. It does not appear upon the face of the language used in the instrument, but occurs when the language appears to be clear, intelligible, unambiguous, but in fact, is shown by some intrinsic fact or extrinsic evidence to be uncertain in meaning. 3A GJS 409, Ambiguity; Conkle v. Conkel, 31 Ohio App. 2d 44, 285 N.E. 2d 883 (1972). In determining whether a latent ambiguity exists, a contract must be read in the light of what the parties intended as gathered from its language in view of all surrounding circumstances. Arkansas Amusement Corp. v. Kempner, 57 F. 2d 466 (8 Cir., 1932). See also, Ellege v. Henderson, 142 Ark. 421, 218 S.W. 831. Words not ambiguous in the abstract may, when considered in relation to the circumstances surrounding the making of it, create an ambiguity requiring interpretation. Arkansas Amusement Corp. v. Kempner, supra. Paepcke-Leicht Lumber Co. v. Talley, 106 Ark. 400, 153 S.W. 833. See also, Ellege v. Henderson; supra; Easton v. Washington County Insurance Co., 391 Pa. 28, 137 A. 2d 332 (1957). .

In order for the court to determine whether a latent ambiguity exists, it is obviously necessary that it consider evidence of extraneous and collateral facts as to extrinsic circumstances. Logan v. Wiley, 357 Pa. 547, 55 A. 2d 366 (1947). The rule is well settled that extrinsic evidence is admissible to show that a latent ambiguity exists. Hall v. Equitable Life Assurance Society, 295 Mich. 404, 295 N. W. 204 (1940); McCar ty v. Mercury Metalcraft Co., 372 Mich. 567, 127 N.W. 2d 340, cert. den., 380 U.S. 952, 129 N.W. 2d 854 (1964); Widney v. Hess, 242 Iowa 342, 45 N.W. 2d 233 (1951). See also, Ellege v. Henderson, supra; Easton v. Washington County Ins. Co., supra; 3 Jones on Evidence 124, § 16:23. To discover a latent ambiguity, it is proper to go outside the instrument to ascertain whether the words used aptly fit the facts existing when the instrument was executed and the words used. Widney v. Hess, supra; Queen Insurance Company of America v. Meyer Milling Co., 43 F. 2d 885 (8th Cir., 1930). In making the determination, courts may acquaint themselves with the persons and circumstances that are the subjects of the statements in the written instrument and place themselves in the position of the parties who made the contract, so as to view the circumstances as they did. Wood v. Kelsey, 90 Ark. 272, 119 S.W. 258.

Once it was shown that there was a latent ambiguity, oral evidence was admissible to explain it. Ft. Smith Appliance Co. v. Smith, 218 Ark. 411, 236 S.W. 2d 583; Paepcke-Leicht Lumber Co. v. Talley, supra; Ellege v. Henderson, supra. Testimony of the parties as to the meaning of the words is admissible. Ellege v. Henderson, supra. Parol evidence is also admissible tó explain the situation and relation of the parties and the surrounding circumstances at the time of the execution of the contract. Wynn & Sklar v. Phillips Oil Co., 254 Ark. 332, 493 S.W. 2d 439; Clear Creek Oil & Gas Co. v. Bushmaier, 165 Ark. 303, 264 S.W. 830.

The agreement was reached by acceptance on October 10, 1973. George Thweatt, officer of Ben M. Hogan & Company who became the chief managing officer of appellee, made the offer after negotiations with other representatives of Hogan. Thweatt was familiar with Arkansas Highway Department specifications that prohibited application of the asphalt materials between October 31 and April 1 or when the air temperature was below 60 degrees. He knew that the material was not to be used until springtime and that it could not be used before April 1 and that April 1 was not the beginning of “spring,” whether spring be March, April and May or March 21 through June 20. He knew that appellee had fixed working days, i.e., 90, from the issuance of a work order by the highway department for completion of the contract. Obviously, working days are not the same as calendar days. The price was increased from 13 cents to 14 cents, because appellee asked for a firm price. There was also evidence tending to show that Hogan, whose obligation appellee assumed, was interested in selling appellee crushed stone or chips and appellee bought chips from Hogan for use in performing this highway job.

John Harsh, who was employed by Arkansas Rock & Gravel Co. took a quotation on the asphalt in September, 1973 from Ivan Justice, a representative of Hogan, on the eve of the bidding for the highway contract. He delivered the price quotation to officials of Arkansas Rock & Gravel Company. One of these, Warren Simmons, talked with Justice on the telephone and asked for a firm figure. When Justice returned the new price Simmons asked that it be confirmed in writing and as a result the “contract letter” came into being. The jury might well have inferred that Arkanaas Rock & Gravel Company based its bid on the job on the agreement with appellee.

The work order was not issued until May 28, 1970. Simmons testified that had it not been for rain and other matters, the highway contract might have been completed by June 20, but that he had not expected to do so, even though they had planned theoretically to do so. He also said that he had not been made aware, in the telephone conversation, that the firm price was based upon the contract being completed in the spring of 1974.

Ivan Justice said that the sentence in question here was a sentence added to appellee’s usual form of quotation and that the intent was “how soon it was to be used.”

There was contradictory evidence from which the jury might have found that appellee was well aware that the quotation or firm price was based upon the use of all the material during the spring of 1974, but I agree with the circuit judge that there was a fact question. Under the circumstances, the contract could have meant only that the use was to commence after the beginning of the highway department’s sealing season and continue during the time allotted for completion of the job.

I see no reason why the instruction I have previously referred to should not have been given. I would reverse the judgment because of its being refused.

I am authorized to state that Mr. Justice Byrd joins in this opinion.


author: George Rose Smith, Justice. Fogleman, J.,

text:
    Ersaleen HALL v. STATE of Arkansas
    CR 75-222
    537 S.W. 2d 155
    Opinion delivered June 1, 1976

      Hollingsworth & Crutcher, P.A. and Walker, Kaplan & Mays, P.A., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jack T. Lassiter, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was charged with the first degree murder in the shooting of her former husband, Charles Hall. The jury found her guilty of voluntary manslaughter and imposed a seven-year sentence. The principal points for reversal relate to the admissibility of the defendant’s confession and the manner in which the panel of petit jurors was selected.

In the course of an argument the defendant shot Hall twice at her home in Newport. She immediately telephoned for the police and an ambulance. When the police arrived she went outside and told them that she had shot Hall and hoped that he wasn’t dead. She was arrested and taken to police headquarters, where she was questioned about an hour and a half later, after having been warned of her rights. The interview was taped and transcribed. About midway through the interview, when the interrogating officer asked her to calm down, she said: “I don’t want to talk about it. Please don’t make me. Lord have mercy.” The rest of the confession was not admitted in evidence, the State conceding that it was not to be admitted.

Upon the testimony as a whole we cannot say that the trial judge’s finding that the confession was voluntary is against the weight of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). It is apparent and understandable that the appellant was nervous and upset when she was questioned, but her responses seem reasonably clear and coherent. That the interrogation took place some two hours after the shooting indicates that she had had an opportunity to regain her composure. Counsel argue that she had not been told that she was charged with first degree murder, but she undoubtedly knew why she was being questioned. The exact charge that would ultimately be made could hardly be determined until the investigation was complete and the information had been submitted to the prosecuting attorney. The trial judge had the advantage of hearing the testimony as it was given. We do not find his admission of the confession to be erroneous.

With regard to the exclusion of blacks from the jury panel, a prima facie case of discrimination was made, so that the State should have been required to go forward with rebutting evidence. Hence the court erred in denying the motion to quash the jury panel, without requiring the State to submit proof.

The proof is not as complete as it might be, but that is hardly the fault of defense counsel. A few weeks before trial the judge directed that all motions be filed by May 12, the date of the pretrial conference. No motion attacking the composition of the jury was filed within the time allowed. If the record stopped at that point it might be said that a motion filed later on came too late. The judge’s policy of requiring pretrial motions to be made in advance, so that jurors are not kept waiting while preliminary testimony is being heard, is not subject to criticism.

It happened, however, that it became necessary to draw additional jurors’ names from the jury wheel after the May 12 deadline. Those names were not supplied to defense counsel until the Friday before the trial began on Monday. In those circumstances counsel were not at fault in being able to offer only somewhat limited proof.

Even so, a prima facie case of discrimination was made. It was stipulated that one fourth of the county population was black and that there were only 3 black persons upon the panel of 85 jurors. (The percentage of eligible black registered voters could not be shown, as the registration of voters does not indicate the race of the registrants.)

A prima fane case of discrimination is made by a showing (a) that tl ~e is a substantial disparity, such as the difference between a 25% black population and a 3 Vi % representation on the panel, as here, and (b) that there are positive indicia of discrimination or that the selection procedure provides an opportunity for discrimination. Sanford v. Hutto, 394 F. Supp. 1278 (E.D. Ark., 1975), affirmed, 523 F. 2d 1383 (8th Cir., 1975).

Here point (b) was sufficiently established. Our jury wheel statute does not require a random process of selection; instead, the selection is committed to the discretion of the jury commissioners. We do not know what further proof might have shown, for the State was not required to go forward with the evidence. It was shown, however, that when the additional names were drawn from the jury wheel the trial judge, owing to the season of the year, excused all the farmers (some 25 or 30) without requiring them even to appear and ask to be excused. That practice cannot be approved, for it is a deliberate and systematic exclusion of a large class of eligible jurors. It does not matter that this appellant is not a farmer or a resident of a rural area, for the Supreme Court has held that anyone has standing to question a jury that does not meet constitutional standards, even though he is not a member of the race or group that is being made the subject of improper discrimination. Peters v. Kiff, 407 U.S. 493 (1972).

Counsel also questioned the trial court’s practice of drawing names from the jury wheel in chambers rather than in the courtroom. The statute requires that, pursuant to an order made at least 15 days in advance, the jury wheel be unlocked and the names drawn “in open court.” Ark. Stat. Ann. § 39-209 (Supp. 1975). The distinction between the courtroom and the judge’s chambers cannot invariably and inflexibly be regarded as decisive. We know that many contested cases, especially those involving only a few witnesses, are tried in chambers. Such proceedings have frequently been held to take place in open court. McCann v. Todd, 201 La. 953, 10 So. 2d 769 (1942); People v. Janoske, 206 Misc. 155, 132 N.Y.S. 2d 186 (1954); People ex rel. Walsh v. Warden of Sing Sing Prison, 176 Misc. 627, 27 N.Y.S. 2d 273 (1941); see also Suesemilch v. Suesemilch, 43 Ill. App. 573 (1892); Hobart v. Hobart, 45 Iowa 501 (1877).

There is also the practical consideration that the courtroom may not be available, owing to the continuatión of a trial in progress or to the use of the courtroom by the chancery or probate court. Certainly the better practice is for the names to be drawn in the courtroom. What the statute really contemplates, however, is that the drawing in every instance be open to the members of the public. If the drawing does take place outside the courtroom, precautions should be taken to avoid even the appearance of secrecy or of exclusion of the public.

On the merits it is argued that the proof is insufficient to support the verdict. This argument cannot be sustained. The defendant has admitted from the outset that she shot her former husband. There was other proof in addition to her confession. Upon the testimony it was for the jury to say whether the homicide was justifiable.

Other arguments for reversal are urged, but none of the asserted errors are apt to arise upon a new trial.

Reversed and remanded for a new trial.

Fogleman, J.,

concurs in all of the opinion except the statement that a prima facie case of racial discrimination was made.


author: John A. Fogleman, Justice.

text:
    Connie BETNAR v. Willard L. ROSE and Wanda ROSE
    76-3
    536 S.W. 2d 719
    Opinion delivered June 1, 1976

      Reed & Blackburn, for appellant.

      Lightle, Tedder, Hannah & Beebe, for appellees.
   John A. Fogleman, Justice.

This appeal arose out of a suit by appellees to recover $2,000 held in escrow by the Cleburne County Bank in connection with an oral real estate sales agreement between appellees and appellant. The trial court granted appellees’ motion for summary judgment and ordered the return of the money to appellees who were to have been the vendees of a home built by appellant. Appellant contends that the court erred in granting the motion.

Appellant is a homebuilder. He offered for sale a house which was near completion. It is admitted that appellees approached him wanting to purchase it. At their second meeting, appellant agreed to complete construction and Finish out a storage room, provide insulation, and put storm doors on patio and carport entrances. There is no allegation that appellant failed to perform in any regard. The parties orally agreed upon a total price of $27,500, with earnest money of $2,000 to be applied as a down payment against the total. The agreement was not reduced to writing. Mr. Rose wrote his check payable to the order of appellant in that amount but, according to her testimony, Mrs. Rose was loathe to “turn loose of $2,000 not knowing him [appellant]. ” Appellant suggested that the bank hold the check, whereupon they visited Jerome Johnson of the Cleburne County Bank and placed the $2,000 check into an escrow account. Mr. Johnson wrote the terms of the escrow agreement on the deposit ticket. They were:

This deposit is to be applied on the house and lot that Rose is buying from Betnar, provided Rose can obtain a loan. This Escrow Deposit is to be refunded back to Rose if a loan cannot be obtained.

Appellees did not get a loan and filed suit after demand for the return of the $2,000 in accordance with the condition listed on the deposit slip. In their complaint, appellees alleged that the bank held the funds relative to a purported real estate transaction, that there was no enforceable contract or agreement, that they had elected to withdraw from further negotiations relative to said purported transaction, and that they had demanded a return of the funds deposited by them. The Cleburne County Bank interpleaded the funds. Appellant answered, denying appellees ’ right to recovery and counterclaimed, alleging: that the sum was his, having been received pursuant to a legal contract for the sale of a home for $27,500, contingent upon appellees’ obtaining a loan; that he remained ready and able to perform; that appellees were the equitable owners of the house, the subject of the contract; and that appellees had paid him the $2,000, which was then deposited with the bank. Appellees amended their complaint to allege that they had been unable to obtain a loan and denied that the Cleburne County Bank offered an acceptable loan.

The trial court granted appellees’ motion for summary judgment, finding that the oral sales agreement was unenforceable as barred by the Statute of Frauds and that appellant stood ready to perform the agreement and declaring the law to be that where a person has paid money or delivered property, under a parol contract for the purchase of land, which is void by the Statute of Frauds, he cannot maintain an action to recover it back so long as the other party, to whom the money or property was paid or delivered, is willing and able to perform, quoting from Sturgis v. Meadors, 223 Ark. 359, 266 S.W. 2d 81. However, the court concluded that delivery of the money to an escrow agent did not constitute delivery as contemplated under the rule of Sturgis, that the escrow agreement was itself parol and unenforceable under the Statute of Frauds, and ordered the bank to pay the $2,000 to appellees.

Thereafter, appellant amended his cross-complaint to allege physical receipt of the check of appellees and negotia - tion by delivery to the bank which had stamped the check “credited to the account of the within named payee.” He also alleged that the terms of the escrow agreement, set out on the deposit slip, contained a condition subsequent, to wit, “. . . this Escrow Deposit to be refunded back to Rose if he can’t obtain a loan.”

Appellant filed a motion to set aside the summary judgment and for further hearings. The court reopened the matter to hear the testimony of the parties, again entering judgment for appellees.

For reversal, appellant argues that delivery of the check into escrow did constitute complete delivery for purposes of the Sturgis rule, that the escrow agreement was therefore enforceable, and that appellees failed to sustain the burden of proof to show the existence of the condition, to wit, that they were, after a good faith effort, actually unable to obtain a loan.

We agree that the payment of the check into escrow constituted delivery as is required for the application of the rule in Sturgis. The rationale underlying the rule applied by this court in Sturgis is that the purpose of the Statute of Frauds, so far as it relates to the sale of land, is to protect the vendor only, and the vendee seeking to recover the purchase price or a portion thereof cannot set up the statute against a vendor who is ready and willing to perform. Thus, the oral contract cannot be considered void so long as he, for the protection of whose rights the statute exists, is willing to treat and consider the contract good. 73 Am. Jur. 2d 178, Statute of Frauds, § 542. According to the great weight of authority, the vendee, under an agreement for the sale and purchase of land which does not satisfy the statute of frauds, cannot recover back payments upon the purchase price if the vendor has not repudiated the contract but is ready, willing and able to perform in accordance therewith, even though the contract is not enforceable against the vendor either at law or in equity. See Venable v. Brown, 31 Ark. 564; Annot, 169 ALR 188 (1947). This is but a specific variation of the general rule recognized and applied by the court in Baker v. Taylor & Co., 218 Ark. 538, 237 S.W. 2d 471. Under this rule, one who has paid money in consideration of an oral contract cannot rescind such contract and recover the money paid unless the other party insists upon the statute and refuses to perform it on his part. Grauel v. Rohe, 185 Md. 121, 43 A. 2d 201 (1945); 37 CJS Statute of Frauds, § 256, p. 779; 73 Am. Jur. 2d 177, § 541, 542.

This rule is generally applied, except in a few of the jurisdictions in which the Statute of Frauds makes a contract in violation of its terms void, rather than merely unenforceable. Our statute provides that no action may be brought on a contract which is not in compliance with the stated requirements. Ark. Stat. Ann. § 38-101 (Repl. 1962). The plain words of the statute indicate that contracts in violation of it are merely unenforceable, but not void. In spite of the fact that we once said that a contract was void because of the lack of a written memorandum (see Robbins v. Horn, 145 Ark. 475, 224 S.W. 748) and, on another occasion, referred to such a contract as invalid and unenforceable (see Lee Wilson & Co. v. Springfield, 230 Ark. 257, 321 S.W. 2d 775), we have also referred to a parol contract which did not comply with the statute as being unenforceable. Wyatt v. Yingling, 213 Ark. 160, 210 S.W. 2d 122. The statute is designed to prevent fraud, not shield or effectuate it. Bolin v. Drainage District No. 17, 206 Ark. 459, 176 S.W. 2d 143; Lesser-Goldman Cotton Co. v. Merchants & Planters Bank, 182 Ark. 150, 30 S.W. 2d 215. It has been said that it should not be considered the grant of a license to welch on a deal. Hyder v. Newcomb, 236 Ark. 231, 365 S.W. 2d 271. Our application of the statute has been much more consistent with a construction that the statute only renders the contract unenforceable, not void. This construction is not contrary to the result reached in either Robbins v. Horn, supra, or Lee Wilson & Co. v. Springfield, supra. Although the words “void” and “voidable” have entirely different meanings, they are used interchangeably all too often, and we have on other occasions construed “voidable” to mean “void” and “void” to mean “voidable.” Simmons v. A. C. Carter & Co., 125 Ark. 547, 189 S.W. 176; Ragan v. Cox, 210 Ark. 152, 194 S.W. 2d 681; Ragan v. Cox, 208 Ark. 809, 187 S.W. 2d 874.

In statutory construction, we have said that their meaning is an open question to be decided by the connection and context in which they are used to carry out legislative intent. Mobbs v. Millard, 106 Ark. 563, 153 S.W. 821. We take the use of the words “void” and “invalid” in our opinions to be subject to the same treatment as we have given the words in such statutes. The real intent and effect of our opinions, in spite of occasional poor word choice, is consistent with the statutory language, i.e., that a contract in violation of the statute is merely unenforceable. This is best illustrated by language in Skinner v. Fisher, 120 Ark. 91, 178 S.W. 922. We said:

Even though the statute of frauds might have been interposed if an effort had been made on the part of the appellee to enforce the verbal agreement for the sale of the plant to him by the appellant, still in such case it would not be obligatory upon the appellant to plead the statute of frauds in defense. It would at least be optional with him whether he did so or not, and his verbal contract to sell the property would at least impose upon him a moral obligation, and the appellee would at least have had the right to sue upon the contract and put the appellant to the test as to whether he would set up the defense of the statute of frauds. Therefore the verbal agreement gave to the appellee rights which would have warranted him in interfering with an attempted sale of the property to other parties. Appellant, as we have seen, when he signed the contract in suit, acknowledged those rights and the binding obligation he was under to make the sale he had verbally agreed to make and promised to pay the $500 as a consideration for his abandoning his rights under the verbal contract, even though appellant now disputes that appellee had such rights. The contract sued on plainly shows an agreemerft on the part of the appellant to pay appellee the sum of $500 for whatever alleged rights the appellee had under the verbal contract, whether these rights were susceptible of enforcement or not.

Furthermore, the rule applied in Sturgis has been applied even though the money may have been in the hands of a third person for the benefit of the vendor to be paid over to him upon his performance under the contract. Burford v. Bridewell, 199 Okla. 245, 185 P. 2d 216 (1947); Coughlin v. Knowles, 7 Met (Mass) 57 (1843). In Coughlin, the court stated: “ ... it is equally true, that the provisions of the statute [of frauds] are not so broad as to entitle a party, who has entered into an oral contract, by which he is to receive a conveyance of land, and towards payment for which he has made advances in money, to set aside such contract as a nullity, and reclaim the money so advanced, the other party being no way in fault, but being both able and ready to perform his contract. .. the money was placed in the hands of the defendant [escrow], under a written contract executed by him, and the terms of this contract show that he held it for M’Nulty [vendor] dependent only upon the condition that M’Nulty performed his part of the agreement. The effect of thus placing the money in the hads of the defendant was to render it irreclaimable by the plaintiff, except in case of failure on the part of M’Nulty to fulfill his agreement.” Accord, Chaffin v. Harpham, 166 Ark. 578, 266 S.W. 685. Indeed, it would make no sense to distinguish in the application of the rule between actual delivery to the vendor and delivery to an escrow since, in the light of the purpose of precluding the vendee from using the statute as a sword against the party for whom it was intended to be a shield, the rationale underlying Sturgis applies with equal force in either case.

In the instant appeal, a writing containing the terms of the escrow agreement was produced. It conditioned the effectuation of the sale upon the appellees’ getting a loan. It expressly conditioned the return of the $2,000 upon appellees’ failure to arrange a loan. The writing contained no specifics regarding just what efforts appellees were to have made or what terms they were to have accepted for a loan, but in the absence of such specifics, appellees had the duty to make a reasonable effort and to accept reasonable terms in order to satisfy the condition of the agreement relating to the return of the $2,000. See, Jones v. Gregg, 226 Ark. 595, 293 S.W. 2d 545.

The evidence on the subject of appellees’ failure to obtain a loan is somewhat conflicting. Appellant testified that Johnson offered the Roses a loan when the escrow was arranged but the Roses said they could get one in White County. Johnson testified that the Cleburne County Bank would take a first mortgage on the house they were buying and a second mortgage on their house in Searcy until they could sell it and apply the proceeds, first to the payment of the first mortgage debt and the balance remaining to the Cleburne County Bank loan. Johnson said the loan offered was temporary until the Searcy property was sold. He also said that the payments on the loan he could make would have been pretty large.

Jack Claridy, manager of the Heber Springs Savings & Loan Association testified that he could have made a 25-year loan on a $27,500 home for 90 per cent of the purchase price, but that he would not have loaned $26,000.

Willard Rose testified that White County Guaranty Company turned them down because they were experiencing a shortage of funds. They would loan only 80 per cent of the purchase price. Mrs. Rose said that they intended to borrow all of the purchase price except for the down payment, i.e., $25,500. A niece of the Roses testified that Mrs. Rose said when she asked appellant about the amount of the deposit that she did not want to tie up their house in Searcy. Whether the efforts of appellees in this case were reasonable in either respect was a question which should properly have been put to a trier of fact. See, Southern Wooden Box, Inc. v. Ozark Hardwood Mfg. Co., 226 Ark. 899, 294 S.W. 2d 761; Reynolds v. Ashabranner, 212 Ark. 718, 207 S.W. 2d 304.

Appellees suggest that the parties intended for the trial court to decide the entire case sitting as the trier of fact and not merely the motion for summary judgment and that the judgment should be affirmed because it is supported by substantial evidence. We cannot agree.

There was nothing in the abstract of the record to indicate that the court tried the issue on the merits or that the parties waived their right to a trial of the factual issue by a jury. At the rehearing of the motion for summary judgment, the reporter recorded the following:

THE COURT: I don’t think we are at a point where the Court is going to try this case on the testimony. We are at a point where the Court decides whether or not he sets aside the Summary Judgment. The Court is not going to decide this case. The Court is going to decide whether his Summary Judgment should stand or he should set it aside and the case be ready for trial.
MR. LIGHTLE: Your Honor, if we put on all the testimony this afternoon, that will be all the case.
THE COURT: I didn’t know we had agreed to submit it on the evidence. This evidence is merely taken on whether or not the Summary Judgment should be set aside.
MR. LIGHTLE: Of course, we move that the motion to set aside the Summary Judgment be dismissed. There is nothing new out of this testimony.
THE COURT: Do you have other witnesses, Mr. Blackburn?
MR. BLACKBURN: I have Jack Claridy from the Savings and Loan, who will testify to the ability of the man to get a loan. And I would show he had good credit there.
THE COURT: I am going to hear all the evidence either of you has, and ask you to submit briefs on it, and take it home and decide it within a week.
MR. LIGHTLE: This testimony adds nothing to it. This is the testimony on which the Summary Judgment was granted.
THE COURT: Motion taken under advisement.

We reject appellees’ strained construction of these exchanges. There is no doubt that the trial court considered only the issue of summary judgment. The final judgment recited that, after submission of motions for summary judgment by both parties, the court heard additional oral testimony and concluded with a statement that its previous findings and conclusions should not be disturbed.

In light of the existence of a factual issue, it was error to have entered the summary judgment. In order for a summary judgment to have been justified, there must have been no genuine issue of material fact and all evidence must have been viewed in the light most favorable to the party against whom the judgment would go. If fair-minded men might differ about the conclusion to be drawn or if inconsistent hypotheses might reasonably have been drawn from the supporting testimony, a summary judgment should have been denied. Southland Insurance Agency v. Northwestern Netional Insurance Co., 255 Ark. 802, 502 S.W. 2d 474. Such was the case here. The motion for summary judgment should have been refused and the cause heard on all the evidence before a trier of fact.

The judgment is reversed and the cause remanded for further proceedings.


text:
    MASS MERCHANDISERS, Inc., Employer and HOME INSURANCE COMPANY, Insurance Carrier v. Jimmy E. HARP
    76-22
    536 S.W. 2d 729
    Opinion delivered June 1, 1976

      Putman, Davis & Bassett, for appellants.

      Adams & Covington, for appellee.
   John A. Fogleman, Justice.

Appellee Jimmy E. Harp was an over-the-road truck driver for appellant, Mass Merchandisers, Inc. His claim for compensation for injuries incurred on May 4, 1974 in an automobile collision on Highway 166 near Edna, Kansas, was denied by the Workmen’s Compensation Commission. The commission found that appellants, his employer and its carrier, had met their burden of proving that Harp was intoxicated and that his injury was solely occasioned by his intoxication. Specifically, the commission found that medical testimony showed that Harp had consumed sufficient alcohol to bring his blood alcohol content to a level which would impair one’s judgment and depth perception and that impaired sense of judgment and depth perception seemed to be the only logical explanation for the accident. Appellee appealed to the Circuit Court of Boone County. That court reversed the commission’s denial of compensation, holding that appellants had failed to meet their burden of proving that Harp’s injuries resulted solely from his intoxication. The court’s findings were that the evidence was directed to a showing that Harp was under the influence of intoxicating liquors and that the commission erred by equating proof of blood alcohol content sufficient to raise a presumption that Harp was under the influence of intoxicating liquors with proof of intoxication. The court also found that there was no proof as to the cause of the accident. We reverse because we find substantial evidence to support the holding of the Workmen’s Compensation Commission.

Perhaps there is justification in the circuit judge’s and appellee’s distinction between intoxication and being under the influence of intoxicating liquors, but it is one of degree only. See St. Louis, I.M. & S. Ry. Co. v. Waters, 105 Ark. 619, 152 S.W. 137. An accepted and appropriate definition of intoxication which will preclude compensation is the state of being under the influence of intoxicating liquors to the extent that one is not entirely himself or so that his judgment is impaired and his acts, words, or conduct is visibly impaired. 99 C.J.S. 908, Workmen’s Compensation § 263. See also, 6 Workmen’s Compensation Text (Schneider) 493, § 1587. This is very similar to a statement of this court that one is drunk, or in an intoxicated condition, whenever he is under the influence of intoxicating liquor? to the extent that they affect his acts or conduct so that persons coming in contact with him could readily see and know that the intoxicating liquors were affecting him in that respect. St. Louis, I.M. & S. Ry. Co. v. Waters, supra.

The first question then is the extent to which Harp was under the influence of intoxicating liquors at the time of the collision. The collision took place at approximately 5:30 p.m. A blood alcohol test was performed on Harp at the direction of Sgt. Seibert of the Kansas State Police and with the consent of Harp. It was done at the Coffeyville Memorial Hospital under the supervision of Dr. James W. Wilson. The results of that test showed a blood alcohol content of .120 “weight per volume.” The sample on which the test was made was taken about an hour and a half after the collision. Dr. Wilson testified that the human liver has an enzyme that metabolizes alcohol, in the case of one with Harp’s physique, at the rate of approximately nine cubic centimeters per hour, so that the blood alcohol level is thereby reduced. From this, he said it could be presumed that Harp’s blood alcohol level would have been higher at the time of the collision and might have been as much as .150. Even at .120, this physician said that an average person would have some slurring of speech, possibly a showing of incoordination to a minimum degree, and, more seriously, impaired judgment and depth perception. He related that depth perception is one of the things that one imbibing alcohol loses first and that the result is impairment of direct relationship to things in space and compression of time and distance. According to Dr. Wilson, a person with that level of alcohol would be in the range of what a layman would call “tipsy, happy, relaxed.” He explained that when one ceases drinking, the level of blood alcohol first rises to a peak within an hour, then declines.

Sgt. Seibert first saw Harp at least one hour after the collision at the hospital where Harp had been taken by ambulance. The officer immediately observed a strong odor of alcohol on Harp’s breath, saw that Harp’s eyes were bloodshot, and noted that his speech was slurred. He talked with Harp for about ten minutes and then asked Harp for his license, which Harp produced after fumbling through his wallet. He said Harp admitted drinking one beer at Joplin, commencing at 1:00 p.m. In the opinion of Seibert, who had investigated approximately 1000 accidents in his eight years with the Kansas State Police and had had occasion to observe people who had been drinking, Harp was definitely under the influence of intoxicating liquors.

Harp admitted drinking a 12 oz. can of beer at Mt. Vernon, Missouri about 10:00 a.m. He remembered that he had stopped in Branson, Missouri and had bought a 6-pack of 12 oz. cans of beer on the night preceding the day of the accident. When this evidence is viewed in the light most favorable to the commission’s finding, the evidence that Harp was under the influence of intoxicating liquors at the time of his injury to the extent that those coming in contact with him could readily see that his acts and conduct were affected by intoxicating liquors was very substantial, it also was substantial to show that Harp’s judgment and speech were impaired.

It would be difficult indeed to account for the collision in which Harp was involved if it was not attributable solely to Harp’s intoxication. He was driving along the highway on a stretch that was straight for a mile to a mile and a half, without any obstructions to view, when, after having followed a Cadillac passenger automobile for about a quarter of a mile, he undertook to pass the automobile. A collision quickly resulted. Harp testified that he was unable to see the car at the time of the collision. He didn’t know what part of his tractor-trailer rig struck the Cadillac and said that nothing distracted his attention at the time. He admitted that the right rear wheel of the tractor-trailer rig he was driving came up over the back of the automobile. He had no knowledge of any improper driving on the part of the operator of the Cadillac and admitted telling Sgt. Seibert that he didn’t know how the accident happened.

Seibert arrived at the accident scene at 5:53 p.m. He found the Cadillac automobile smashed. It was in a field north of the highway. Both vehicles has been proceeding in a westerly direction. Sgt. Seibert found skid marks and gouge marks on the north or westbound lane of the highway beginning at the indicated initial point of contact between the two vehicles. The gouge marks were one foot north of the center line of the highway. There were also skid marks in the passing lane. They originated at approximately the same point as the gouge marks, and were made by dual wheels. All of the automobile marks originated in the westbound traffic lane. The tracks of the left side of the truck were in the south or left-hand lane.

The damage to the Cadillac started at the back bumper. The left side of its rear deck lid was smashed down, the left rear window knocked out and the left side of the top smashed down even with the front windshield. There were tire marks on the car commencing at the back bumper which were continuous over the deck lid onto the top. It is clear that the tractor-trailer rig ran over the automobile and that the Cadillac was entirely within its own proper lane.

Although Harp was totally ignorant of how the collision occurred, he claimed that a witness had told him that the Cadillac had swerved under his trailer and he had taken the name of this person. Admittedly he never told the investigating officer of this and claimed that he had lost the piece of paper on which the name was written when his pants leg was cut off at the hospital after he had talked with the officer. The commission found a lack of credibility in Harp’s testimony and there were reasons to do so, among which were inconsistencies and conflicts in his testimony, his admission that he had falsified the log he had kept on the trip and his forgetting pertinent adverse facts.

Viewing the evidence in the light most favorable to the commission’s findings, reasonable minds could conclude that Harp’s intoxication was the only plausible explanation for the right rear wheels of the rig Harp was driving being literally run over the Cadillac automobile while that vehicle v/as moving along the highway in its own proper traffic lane. It seems highly unlikely that this could have resulted from anything other than a failure of the truck driver’s perception of time, space and distance. Appellee admits that there was substantial evidence to support a finding that his coordination and depth perception were impaired to some degree and that his drinking might have, to some extent, contributed to the cause of the accident. Still, he says that no witness testified that Harp’s drinking was the sole cause and that it cannot be said with certainty that it was.

It is true that doubts on factual issues are to be resolved by the commission in favor of a claimant. But that is the function of the commission, not the courts. Both the circuit court and this court must view the evidence in the light most favorable to the findings of the commission and give the testimony its strongest probative force in favor of the action of the commission. Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487. The test is whether the evidence before the court would have sustained a jury verdict. Donaldson v. Socia, 254 Ark. 158, 492 S.W. 2d 253. The most favorable view of appellee’s arguments is that the commission might have found from the evidence that Harp was not intoxicated or that his intoxication was only a contributing cause to his injury. Even so, the courts may not overturn the order of the commission holding to the contrary, unless it can be said as a matter of law, that the commission acted upon insufficient, i.e., insubstantial, evidence. Marks v. Moore, 209 Ark. 410, 190 S.W. 2d 524. The burden of proof on appellants was not to show Harp’s intoxication and its being the sole cause of his injuries beyond a reasonable doubt. A preponderance sufficed. O’Reilly v. Roberto Homes, Inc., 31 N.J. Super. 387, 107 A. 2d 9 (1954). And circumstantial evidence which does not leave the factfinder to speculation and conjecture is substantial evidence in workmen’s compensation cases. United Steelworkers v. Walden, 228 Ark. 1024, 311 S.W. 2d 787.

It was incumbent upon the trial court to accept that version of the facts most favorable to the commission’s findings. Albert Pike Hotel v. Tratner, 240 Ark. 958, 403 S.W. 2d 73. It was the function of the trial court and this court to determine whether there was any substantial evidence to support the commission’s findings. Goza v. Central Arkansas Development Council, Inc., 254 Ark. 694, 496 S.W. 2d 388. Neither a circuit court nor this court may reverse the findings of the commission on a disputed factual issue unless the proof is so nearly undisputed that fair-minded persons could not reach the conclusion of the commission. Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W. 2d 184. There was substantial evidence to sustain the commission’s findings, so both the circuit court and this court are bound by them. Employers Cas. Co. v. United States Fidelity & Guaranty Co., 214 Ark. 40, 214 S.W. 2d 774.

The judgment must be reversed and the findings and conclusions of the Workmen’s Compensation Commission reinstated.

      This case was the source of AMI, Civil, 607.