author: Paul Ward, Justice. John A. Fogleman, Justice.

text:
    Mary G. Norton v. Roy Hindsley
    4658
    435 S.W. 2d 788
    Opinion Delivered October 7, 1968
    [Substituted opinion on rehearing delivered January 13, 1969, p. 966.]

      David Soloman and W. G. Dinning, Jr. for appellant.

      Anderson & Anderson for appellee.
   Paul Ward, Justice.

The prime issue is whether Mary Gr. Norton (land owner, and appellant here) entered into a valid lease with Roy Hindsley (lessee, and appellee here) for the years 1967, 1968, and 1969. The issue is further clarified by the pleadings — summarized below.

On February 13, 1967 appellant filed a complaint against appellee in circuit court, alleging in substance: appellee is claiming right to possession of certain lands (described in detail), but is in unlawful possession of same; appellee unlawfully refuses to relinquish possession, and; appellant has been damaged in the sum of $500. The prayer was for a Writ of Unlawful Detainer; that she be given possession of said lands, and a judgment for $500.

In answer to above appellee alleged: that on or about November 1, 1966 he made a binding lease agreement with appellant for the years 1967, 1968, and 1969 for $15,000; that appellant accepted his rent notes for said amount, and; that appellee had been renting the land for the past twelve years and that, even if no new lease agreement was made, appellant had failed to give him proper notice of termination.

On May 10, 1967 appellant filed an amendment to her original complaint, alleging: appellee occupied the land for the year ending December 31, 1966 “under an oral one-year contract”; appellee was notified by mail on November 10, 1966 that “all rights of possession” terminated on the above date.

The issues were tried before a jury which found for appellee, and a judgment was so entered.

For a reversal appellant relies on two points which we now discuss.

One. “Appellee’s actions, as a matter of law, did not take an oral lease for three years out of the operation of the statute of frauds.” For reasons, mentioned below we do not agree with appellant.

In the first place, appellant did not plead the statute of frauds as required by many of our decisions. In Smith v. Milam, 195 Ark. 157 (p. 158), 110 S.W. 1062 we said:

“A sufficient answer to this is that the statute of fraud was not pleaded in the lower court and cannot be interjected into the case for the first time on appeal.”

See also Rogers v. Moss, 216 Ark. 838, 227 S.W. 2d 630, and Dunn v. Turner Hardware Company, 166 Ark. 520, 266 S.W. 954. It is also pointed out that appellant asked the court (Inst. #2) to instruct the jury to find in her favor unless it found she did not sign a written agreement for the leasing of her lands”. This Instruction was refused, and we think properly so. There was no contention on the part of appellee that she signed anything. At any rate appellant does not here contend the court erred.

Furthermore, appellee offered testimony which, in substance, shows: he consulted with appellant in October of 1966 about renting the land for three years; that she was agreeable, and instructed him to prepare the rent notes; that he prepared the notes, signed them, and delivered them to appellant; that, relying on the agreement, he prepared ninety acres for cultivation, and; that he never heard anything further from appellant for some three weeks later. These issues of fact were submitted to the jury under appellant’s own requested instruction no. 1 and appellee’s instruction no. 2 which were given by the court.

Two. We also find no merit in this point which reads:

“The question of the good faith and bona fide intentions of the appellee in holding over after the expiration of his lease and after the required notice should have been submitted to the jury.”

So far as we can determine from the record this issue was, in general language, submitted to the jury. Certainly appellant asked for no specific instruction on this point. The trial court did refuse appellant’s requested instruction no. 2 on the ground that the issue had already been covered in other instructions. We agree with the trial court.

Affirmed.

Fogleman, J., concurs.

G-eorge Rose Smith, Brown & Byrd, JJ., dissent.

John A. Fogleman, Justice.

I concur in the result on both points, but there are matters contained in the majority opinion with which I do not agree.

I do agree that the question of the application of the statute of frauds was not properly raised in this case. The mere fact that appellee’s contention that he held possession under a contract with appellant was first mentioned in his answer was no bar to a responsive pleading by the appellant asserting the statute of frauds. In spite of Ark. Stat. Ann. § 27-1131 (Repl. 1962), our procedure does provide for a means of pleading when an answer raises an issue which is neither a counterclaim nor a set-off. Section 27-1161 provides that a plaintiff may be allowed, on motion, to make a supplemental complaint or reply, alleging facts material to the case occurring after the filing of the former complaint, answer or reply. Section 27-1160 provides that the court may, at any time, in the furtherance of justice, and on such terms as may be proper, amend any pleadings by inserting other allegations material to the case. This court has held that it was an abuse of discretion on the part of a trial court to refuse to permit a plaintiff to amend his complaint to state a cause of action based upon facts first brought to the plaintiff’s knowledge by the defendant’s testimony. Rogers Commission Co. v. Farmers’ Bank of Leslie, 100 Ark. 537, 140 S.W. 992. While it might be said that the material facts which might have made the statute of frauds applicable here occurred prior to the filing of the complaint, they became material only when the answer was filed.

When these two sections are read together, it seems clear that additional pleadings raising the statute of frauds could have.been permitted. In Cook v. Cave, 163 Ark. 407, 260 S.W. 49, plaintiff brought an action in unlawful detainer and the defendant pleaded a new oral lease agreement with the plaintiff. This court held that a reply to the answer denying the new verbal agreement let in the defense of the statute of frauds. Although the opinion there refers to defendant’s cross-action, it does not appear that the cross-section there was different in effect from the defense made by the appellee here, i.e., a denial that the appellant was entitled to possession and an allegation that the defendant was entitled to possession. Thus, this is not a case in which there were no means available to appellant to plead the statute of frauds.

As a matter of fact, it seems to me that the issue might properly have been raised by a supplemental or amended complaint. After appellee’s answer was filed, appellant did ask and obtain permission to amend her complaint to seek recovery of double damages under Ark. Stat. Ann. § 50-509 (Repl. 1947). No reason appears why permission to plead the statute of frauds was not sought at that time.

While I agree with the result reached on the first point, I do not agree that appellant failed to assert error on the part of the trial court on this point. The appellant specifically objected to a binding instruction given at the request of the appellee because it failed to take into account the statute of frauds. In appellant’s argument on appeal, it is stated that instruction no. 2 is contrary to the holdings of this court and completely disregards the application of the statute of frauds.

As to point two, I can find nothing in the record that would indicate that the question of appellee’s good faith and bona fide intention in holding over after the expiration of the contract for 1966 in the sense of §50-509 was submitted to tbe jury. As a matter of fact, tbe trial court refused to give an instruction wbicb I think should have been given under the testimony in this case. We could not well find this to be reversible error, however, because the jury found adversely to the appellant on the question of the existence of a lease covering the period during which appellant asserts that appellee held over willfully. Thus, there could have been no basis for the jury’s consideration of § 50-509 since appellee was found to rightfully be in possession.

George Rose Smith, J., dissenting. I do not find either that there was a culpable failure to plead the statute of frauds or that the proof made a jury question on the issue of part performance.

First: The necessity for pleading the statute. It is settled that when the plaintiff brings suit upon a contract that is required by the statute to be in writing, and the defendant files a general denial, the burden is thereby cast on the plaintiff to prove a valid contract. Hence the defendant’s denial is in itself a sufficient plea of the statute of frauds. Holt v. Ames, 240 Ark. 218, 398 S.W. 2d 687 (1966); Purvis v. Erwin, 167 Ark. 345, 268 S.W. 355 (1925); Stanford v. Sager, 141 Ark. 458, 217 S.W. 458 (1920).

Here we have substantially the same situation, except that it was the defendant who first alleged a contract that is required to be in writing. In response to the complaint in unlawful detainer the defendant asserted that he had a valid three-year lease. Under the statute, such a contract must be in writing. The plaintiff was not required to file a reply denying the allegations in the answer, because a reply is permitted only if the defendant files a counterclaim or set-off. Ark. Stat. Ann. § 27-1131 (Repl. 1962). Hence, as we held by implication in Bunn v. Turner Hdw. Co., 166 Ark. 520, 266 S.W. 954 (1924), where there was a counterclaim, Mrs. Norton was not required to file a reply to Hindsley’s answer.

There is yet another reason why the appellant ought not to be penalized for failure to plead the statute. In the Stanford case, supra, the complaint asserted a valid contract, and the answer denied it; so the burden of proof was cast on the plaintiff. But we went on to point out a second reason for excusing the defendant from pleading the statute, saying:

The appellee Sager denied specifically all the allegations of the complaint. This was sufficient to put the burden upon the appellants of proving a contract which in equity entitled him to specific performance. The record shows that in the development of the testimony the Statute of Frauds was in issue. It was treated by the parties as in issue, and the court, it appears, determined the question of specific performance purely on that issue. (Italics supplied.)

In the case at hand we have the same situation. Both attorneys knew that the statute of frauds was in issue. The defendant was not misled, because he offered proof of part performance, thereby squarely meeting the issue. The trial court refused the plaintiff’s requested instructions on the statute of frauds, not because the statute had not been pleaded but because the court “is of the opinion that the writing in this case . . . is sufficient to take this matter out of the statute of frauds.” Even on this appeal the appellee’s brief does not contain one syllable suggesting that there was any failure on the part of the appellant to plead the statute. In my opinion the injection of this issue into the case by the majority members of the court, on their own motion, is markedly unfair to the appellant and to her counsel.

Secondly, I do not agree that the appellee’s proof made a question of fact on the issue of part performance. All he says is that in December he plowed up 90 acres of the land in the belief that he had a contract for the ensuing three years. Under our decisions the mere breaking of the ground is not such a valuable and permanent improvement as to take the case out of the statute. French v. Castleberry, 238 Ark. 1038, 386 S.W. 2d 482 (1965). Ashcraft v. Tucker, 136 Ark. 447, 206 S.W. 896 (1918).

I would reverse the judgment.

Brown and Byrd, JJ., join in this dissent.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Dennis B. Sossamon v. The State of Arkansas
    5376
    Opinion Delivered October 7, 1968
    [Rehearing denied November 4, 1968.]

      David O. Partain for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   Lyle Brown, Justice.

Appellant Dennis B. Sossamon entered a plea of guilty to murder and a jury fixed his punishment at life imprisonment after finding that he had committed first degree murder. There was no appeal. Some nine months after commitment, Sossamon filed a petition under our Bule I, seeking discharge from the commitment. That petition was denied. On appeal the prisoner argues (1) that he gave a confession without benefit of the warnings required by Miranda, (2) that he was denied a fair trial because of unfavorable publicity, and (3) that the trial court failed to make a record of the proceedings of the trial.

The details incident to the homicide are not pertinent to an understanding of the points raised. In fact, appellant admits he was given a ride, that he shot his benefactor, took a number of personal possessions and deceased’s automobile, and left the body in a wooded area. Appellant gave that testimony at his Bule I hearing.

1. The Confession. Sossamon was located by Crawford County officers in Oklahoma City, where he was being held on another felony charge. The sheriff and an officer of the Arkansas State Police returned the accused to Arkansas via automobile. The trip was not a long one and was uneventful except for oral admissions made by the accused. Sergeant Oliver testified that he had in his possession a card containing the Miranda warnings; that he read the warnings to Sossamon, not once but twice; that he then explained them in detail and Sossamon appeared to understand them; and that Sossamon freely related the details of the crime. Sossamon testified that he had a ninth grade education and, on previous brushes with the law, had been informed of his rights. At the Rule I hearing, Sossamon did not attempt to repudiate the facts in the statement.

Upon arrival at the Crawford County jail, Sossamon was told to “rest up” and he would be interviewed again the following day. The next morning the officers brought the defendant to an office where a typewriter was available and Sgt. Oliver reduced the oral statements to writing. He testified that the contents of the written statement, which Sossamon signed, were substantially the same as the oral statements.

Appellant’s counsel insist that the Miranda warnings should have been repeated prior to the taking of the written statement. We cannot agree. The lapse of time was overnight and we agree with Sgt. Oliver that the second interview was a continuation of the experience of the previous day. In Kaplan v. United States, 375 F. 2d 895 (1967), the defendant was advised of his right prior to an interview with a federal agent on December 19. A second interview occurred on December 20 and the warnings were not repeated. The court there said: “A repetition of this warning on December 20, 1964, was not required under either the Miranda decision or the ruling of Escobedo v. State of Illinois, 378 U.S. 473 (1964).” To the same effect is People v. Sievers, 62 Cal. Rptr. 841 (1967). Although the time element is not the same, the principle of continued interrogation was present in Heard v. State, 244 Ark. 44, 424 S.W. 2d 179 (1968).

2. Unfavorable Publicity to the Grime. At the Rule I hearing it was testified that the local newspapers gave publicity to the crime. It was also shown that a crime story magazine carried an account of the victim’s disappearance and defendant’s arrest. No effort was made to establish the extent of circulation of the magazine in the county. No testimony was offered except the bare statement that the publicity was read by Sosfamon’s relatives. Notwithstanding diligent legal representation and the trial court’s standard inquiries of the jury relative to their knowledge of the facts, we find no evidence of the question of unfavorable publicity being developed prior to the Rule I hearing. In fact, the present record shows that the matter was not mentioned in the original trial.

3. Failure to Report the Proceedings at the Original Trial. In Medley v. Stephens, 242 Ark. 215, 412 S.W. 2d 823 (1967), we emphasized the importance of recording the proceedings in criminal cases of pleas of guilty. We reiterate that position because it eliminates so many possible pitfalls which were recounted in Medley. However, excepting the confession, the evidence presented in the trial of Sossamon is not here attacked. There is a complete absence of disagreement about the context of the brief trial. A plea of guilty was entered, a jury was empanelled, and the State put on the testimony of Sgt. Oliver to establish the information given him by Sossamon. Sheriff Wilbanks testified about finding the body. The court instructed the jury and the verdict was returned. The State had available a number of key witnesses but they were not called. We find no prejudice to the defendant which could possibly have resulted from the failure to record the proceedings.

We find no error with respect to the three points argued. Also, we have examined the other points raised in Sossamon’s original petition and find no merit. We should point out that, contrary to his assertion, Sossamon was afforded able counsel. The State cooperated with his counsel in apprising them of the State’s evidence. Established facts beyond the content of Sossamon’s statements pointed clearly to his guilt. Those circumstances played an important part in the decision of Sossamon’s counsel, after consulting with him and his parents, to recommend a plea of guilty.

Affirmed.


text:
    Albert Plain v. Robert C. Ray
    4649
    432 S.W. 2d 13
    Opinion Delivered October 7, 1968

      Rieves & Rieves and Fred H. Stafford for appellant.

      Jake Brick for appellee.
   Lyle Brown, Justice.

Appellant Albert Plain was the plaintiff below. He brought this suit to reform a deed given Bobert C. Bay, appellee, contending that the conveyance was in fact a mortgage. The trial court found (1) that Plain was in court with unclean hands, (2) that plaintiff was guilty of laches, and (3) that Plain in fact knew he was conveying the property by deed.

At the time of the transaction in 1960, Albert Plain was sixty-four years of age. He had been a sharecropper most of his life. He never attended school and could neither read nor write. However, he was found by the federal government to be capable and worthy of being included in their farm resettlement program. With the aid of the government he purchased a fifty-acre farm near Earle, Arkansas, in 1944, for which he agreed to pay $5000. He continued to farm the lands until 1959. Apparently because of failing health, Plain executed a five-year lease covering cultivated lands to Eobert Gammill beginning with the crop year 1960. The lessee was not interested in utilizing the house, small barn, and truck patch, so Plain continued down through the years to reside there.

By 1960 Albert Plain was in financial distress. Two years previously he had executed a mortgage to Citizens Burial Insurance Co. for $7500 and he was delinquent. He had not paid court-ordered child support for some time, and a judgment for $870 was rendered in March 1960. Outstanding were several open accounts, mostly incurred in his farming operations. His total indebtedness approximated $8000. Plain was informed by an attorney that his property would have to be sold unless he paid the judgment for child support. Since Eobert C. Eay had helped Plain secure the loan from Citizens, Plain consulted with Eay for advice and possible help. At Eay’s suggestion, Plain garnered most of his bills and submitted them to Eay. At that point the two men gave a different version as to what shortly occurred.

Plain’s Version. He had known Eay since 1947; several times Eay tried to buy his land but he would not sell; on this occasion Eay told him some papers would have to be signed so there would be security; Eay was lending him the money; Eay agreed to lend him enough to pay the debts, about $8000; they went before a notary public; Plain signed with an “X” and there were two witnesses to his mark; and at Eay’s request, Plain delivered to Eay the old deeds which Plain possessed to the place.

Ray’s Version. In September 1960, Plain came to Eay seeking help; Plain offered to sell the land to keep Lucinda (his former wife) from getting it; Plain was instructed to gather up his bills and return; a few days' later he returned with part of his bills which totaled approximately $8000; “I believe,” so Ray related, “I can pay off all this indebtedness and put you clear for that farm.” Ray was willing to make the deal if the bills did not exceed $10,000.

There are other significant facts which are undisputed. The deed was recorded and Ray paid all of Plain’s bills. That included several open accounts and also some small cash payments to Plain. In March 1961 Plain was cited for contempt for failure to pay child support. Ray paid the judgment and Plain testified that he had sold his farm. The court made a finding that Plain no longer owned any realty. Prom 1960 until the date of trial, the cultivated lands had been leased and considerably improved. All lease monies had been paid to Ray. Although the value of the land as of 1960 is in dispute, one appraiser placed the figure as high as $20,000. Another estimate was considerably less. However, it is clear to us that Ray picked up a real bargain because within three years after the purchase he borrowed $10,500 from the Federal Land Bank. Of course that may be offset somewhat by the fact that Plain has through the years used the house, outbuilding, and truck patch free of rent.

The consideration was looked upon by the trial court as being substantially inadequate. It was also the impression of the court that Plain had not been fairly treated when that treatment is judged by moral standards. With those conclusions we agree. On the other hand, we agree with the trial court’s conclusion that the law cannot afford relief to Plain in view of his own undisputed actions:

1. He executed a warranty deed and the form of execution is not questioned. It conformed to all the solemnities required by. law. , For that instrument to now be treated as a mortgage, the evidence must be clear, unequivocal, and convincing. Kerby v. Feild, 183 Ark. 714, 38 S.W. 2d 308 (1931).

2. Plain subsequently signed a witnessed statement to protect the lessee, Gannnill, in paying the rents to Ray. That statement recited that the lands had been sold to Ray.

3. Plain accepted payments from the Welfare Department with which to pay rent to Ray. Naturally Plain had to represent that he was a tenant.

4. When Plain was cited into court for failure to pay the judgment for non-support, he convinced the judge that he owned no property whatever. As a result of that representation he was apparently relieved of further payments. The court made a specific finding that Plain had no assets.

5. Approximately seven years elapsed before Plain sought reformation.

In his maneuvers before the court in the nonsupport hearing, Plain was in much the same position as Hubert Marshall in the case of Marshall v. Marshall, 227 Ark. 582, 300 S.W. 2d 933 (1957). In 1941 Hubert executed a warranty deed to his co-heirs by which he conveyed his interest in the property. In a proceeding some fifteen years later, Hubert sought to have the deed reformed and declared a mortgage. Hubert admitted that as to his 1941 creditors he treated the instrument as a deed, but as to himself he considered it a mortgage. This court held that the “clean hands doctrine” precluded Hubert from now claiming the instrument to have been a mortgage. Another case involving the same doctrine is McClure v. McClure, 220 Ark. 312, 247 S.W. 2d 466 (1952). The evidence showed that Dr. McClure deeded a building to his wife in the liope of placing it beyond the reach of the husband’s creditors. This court held that Dr. McClure could not invoke the aid of equity to set aside the deed.

This case is distinguishable from Batesville Truck Lime, Inc. v. Martin, 219 Ark. 603, 243 S.W. 2d 729 (1951). In that case a transit permit was granted by the Public Service Commission to a dummy corporation formed by Martin and Tugwell. Martin’s name was withheld from the PSC proceedings because otherwise the permit would have been denied. Tugwell later refused to transfer to Martin any of the stock. Martin filed suit for specific performance to obtain his share of the corporation. Tugwell’s plea of “unclean hands” against Martin was denied for the reason that Tugwell participated in the fraud on the commission (if in fact a fraud was perpetrated). To have held otherwise would have permitted Tugwell to hold property which he had obtained by fraud and which was in fact not his own. In the case at bar the trial court did not find Eay guilty of any fraud. The court made a specific finding that Plain knew he was giving to Eay a deed and not a mortgage. The court pointed out that Plain had had considerable experience with the government farm agencies in annually executing crop mortgages. To this finding we would add a point of significance, namely, that Plain freely surrendered to Eay the original deed which Plain held to the place. The most that can be said of the court’s criticism of Eay was to the effect that he drove a hard bargain. In view of the other numerous acts of Plain which we have recited, together with many instances of testimonial evasiveness, we cannot say the chancellor was in error in his refusal to reform the deed.

Affirmed.

Fogleman, J., not participating.


author: John A. Fogleman, Justice.

text:
    J. E. Barker v. V. L. Horn, d/b/a Horn's Used Cars
    5-4679
    432 S.W. 2d 21
    Opinion Delivered October 7, 1968

      Mobley, Rullock & Harris for appellant.

      George J. Cambiano for appellee.
   John A. Fogleman, Justice.

This appeal is taken from a deficiency judgment rendered against appellant on a note representing the deferred purchase price of an automobile sold him by appellee. Error in granting the judgment on appellee’s complaint and in failing to grant a judgment in favor of appellee on a counterclaim is asserted.

The thrust of appellant’s argument on the deficiency judgment is that notice required by Ark. Stat. Ann. § 85-9-504(3) (Add. 1961) was not given.

The automobile was repossessed by appellee. Appellee testified that he told Barker the next day after the repossession that he was going to sell the car to the highest bidder. There is no evidence that any mention was made of the time or place of sale. On cross-examination, appellant denied that he received a letter from T. E. Martin on September 9, 1966 by registered mail. He identified Nina Barker as his wife. He denied that his signature appeared on a card exhibited to him. If this was a return receipt for registered mail, it was never introduced. Appellee stated that T. E. Martin was Ms attorney and apparently sought to testify that he had a copy of a notice Martin had sent. The copy was not introduced when objection was made on account of lack of personal knowledge by the witness. Thus, there was no evidence upon which to base any finding that notice was given. There is no contention that such notice was not required in this case. The statute requires notice of the time and place of public sale. While only reasonable notification of the time after which a private sale will be made is required, appellee’s oral notice was of a sale to the highest bidder without specification of any time. For this reason, it cannot be said to constitute reasonable notice.

Section 85-9-507(1) provides that a debtor has a right to recover any loss caused by a failure of the secured party to comply with §§ 85-9-501 — 7 in disposing of collateral. There is a presumption that the collateral is worth at least the amount of the debt in such eases, so that the secured party has the burden of proving the amount that should reasonably have been obtained through a sale conducted according to law. Norton v. National Bank of Commerce, 240 Ark. 143, 398 S.W. 2d 538. The only evidence offered by appellee on this point was that he sold the car to Arnold Edwards for $275.00. No effort was made to show that this was the value of the vehicle or the amount it should have brought. Thus, there is no evidence to support any judgment in favor of appellee.

Appellant’s counterclaim was for new tires he claimed to have put on the automobile and tools he left in the trunk thereof. Appellee repossessed the car from a repair shop where it had been left by appellant. Appellee testified that there were no tools in the car at that time and that the tires on it were “rags.” We cannot say that the finding of the trial court on the counterclaim was not based on substantial evidence.

The judgment of the circuit court in favor of appellee on his complaint is reversed and the cause dismissed. The judgment on appellant’s counterclaim is affirmed.

Byrd, J., not participating.


author: J. Fred Jones, Justice.

text:
    Charles Weatherly and Helen Weatherly v. Massey-Ferguson, Inc.
    5-4666
    432 S.W. 2d 18
    Opinion Delivered October 7, 1968

      Branscum, Schmidl & Massanii for appellants.

      Rieves & Rieves for appellee.
   J. Fred Jones, Justice.

This is an appeal by Charles Weatherly from a decree of the Monroe County Chancery Court setting aside a conveyance of property from Weatherly to his Avife as an effort on the part of Weatherly to defraud his creditors. Massey-Ferguson, Inc. Avas one of the creditors Avho Avas the plaintiff in the trial court and is the appellee here.

The record reveals that prior to September 22, 3962, Charles Weatherly Avas engaged rather extensively in rice and bean farming. He oAvned several items of farm machinery and equipment used in connection with the farm operations, and on that date he entered into a sales contract with Massey-Ferguson for the purchase of a rice combine. Weatherly took delivery of the combine but defaulted in the payments on its purchase price, so Massey-Ferguson filed suit in circuit court for the balance due on the combine, and judgment by default was entered on February 15, 1965. The combine was sold for $2,100.00 at public sale under the terms of the contract and this amount was credited on the judgment, leaving a balance due in the amount of $8,437.99. Upon finding that Weatherly had transferred all his property to his wife and did not have sufficient assets in his own name to satisfy the judgment, Ferguson filed the present action in chancery to set aside the sale to Mrs. Weatherly as a fraud on creditors.

The chancellor decreed a cancellation of the conveyance, and the ownership of the property involved, as Avell as title to machinery purchased and income derived from the farming operations subsequent to the sale, was decreed to be the property of the appellant Weatherly. We agree with the chancellor.

The badges of fraud are so numerous and plain in this case, we deem it unnecessary to set out all the facts in detail. Appellant purchased the combine on September 22, 1962. One week later on September 29, 1962, he attempted to transfer his interest in all his property except the combine to his wife, by signing a bill of sale reciting:

“That Charles Weatherly sells to Helen Weatherly all of his interest in all property and personal property including cars and trucks and all farming equipment, except one massey-ferguson super 92 combine serial no. *93010562 for the sum of Six Thousand 6000.00 Dollars. 12-1-62 — 3000.00 Dollars. 12-1-63 — 3000.00 Dollars.”

This bill of sale was not filed for record or recorded until December 16, 1963, but on February 3, 1963, Mrs. Weatherly gave appellant written authority to mortgage all or any of the equipment in obtaining a crop loan for 1963, and on March 3, 1963, appellant did make application and obtained a loan from the Production Credit Association all in his own name and listing seventeen items of farm machinery, including the rice combine in the security agreement. As late as September 14, 1963, appellant furnished appellee with a financial statement in connection with the additional purchase of a used combine (which he now says was for his wife) in which he lists unencumbered assets, consisting of farm machinery valued at $9,500.00 and equities valued at $4,300.00 in other farm machinery. In this statement appellant asserted that he had been farming and managing his own farm for ten years, that he did his banking with the Rice Growers Bank at Wheatley, Arkansas, and that his last years income [1962] was $50,000.00.

Additional recitation from- the record would only prolong this opinion. Suffice it to say, from the entire record, the only change in appellant’s mode of operation prior to the execution of the hill of sale to his wife and thereafter, was that the income from the farming operations was deposited to his wife’s bank account upon which he wrote checks with her consent. Notwithstanding his wife’s testimony to the effect that he only played pool and gambled, the appellant apparently worked his wife’s crops as much as he had worked his own and she paid him nothing for his services.

Ark. Stat. Ann. § 68-1302 (Repl. 1957) provides:
“Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods and chattels, or things in action... made or construed with the intent to hinder, delay or defraud creditors or other persons of their lawful actions, damages, forfeitures, debts or demands, as against creditors and purchasers prior and subsequent, shall be void.”

As was said in Harris v. Shaw, 224 Ark. 154, 272 S.W. 2d 55:

“There are certain circumstances which so frequently attend conveyances or transfers to defraud creditors that they are recognized as badges or indicia of fraud. 37 C.J.S., Fraudulent Conveyances, § 79. One of the most important of these is the insolvency or indebtedness of the transferrer. Others are inadequate or fictitious consideration, retention by the debtor of the property, the pend-ency or threat of litigation, secrecy or concealment, a.nd the fact that the disputed transactions were conducted in a manner differing from the usual business practice. 24 Am. Jur., Fraudulent Conveyances, §§ 14 and 17; Moore on Fraudulent Conveyances, Vol. 1, p. 222; Godfrey v. Herring, 74 Ark. 186, 85 S.W. 232; Fromholtz v. Trimble, 140 Ark. 282, 215 S.W. 623; Harmon v. McSpadden, 174 Ark. 184, 295 S.W. 353.”

The appellant represented himself as the owner of all the machinery, income and other assets of the farming operation when borrowing money or obtaining credit, but he represents himself as being ont of the farming business with no property or income except a small pension when called on to pay the judgment he suffered by default.

The decree of the chancellor is affirmed.


author: Carleton Harris, Chief Justice.

text:
    C. L. Sanders v. State of Arkansas
    5367
    432 S.W. 2d 467
    Opinion Delivered October 14, 1968

      Donald, Joe Adams and William S. Walker for appellant.

      Joe Purcell, Atty. G-en. and Don Langston, Asst. Atty. G-en. for appellee.
   Carleton Harris, Chief Justice.

C. L. Sanders, appellant herein, was charged with murder in the first degree by Information filed on December 26, 1967, the charge being that he murdered Hughlin Dean Ramey on Christmas Day of the same year. Subsequently, upon motion of the Prosecuting Attorney, the charge was reduced to second degree murder; on trial, the jury returned a verdict finding appellant guilty of the crime of voluntary manslaughter, and his punishment was fixed at a term of two years in the State Penitentiary. From the judgment so entered, appellant brings this appeal. For reversal, it is first asserted that the verdict of the jury was contrary to the evidence, and second, that the court erred in refusing to permit testimony offered by appellant concerning prior specific acts of aggression and misconduct toward others, appellant asserting that this showed that the deceased was a violent person.

The evidence reflected that Ramey, on the date of his death, was living on property owned by Sanders, such property being located across the road from a neighbor named Alan Gentry. Ramey had moved to the Sanders place about two weeks before, and in fact, had worked for Sanders on previous occasions. Late on the afternoon of Christmas Day, Sanders, accompanied by Friday Robinson and Sam Willis, drove to the home of Gentry to see about a hog. Gentry testified that he could smell alcohol on Sanders’ breath while they were talking. According to this witness, as Sanders started driving back down the road, Ramey came out of his house, stopping the Sanders truck, and Gentry heard Ramey ask Sanders for a drink of whiskey. He did not hear the reply, but did hear Ramey say to Sanders, “I know you have got some whiskey.” The Sanders truck was stopped right in front of the Gentry house, and was about 30 feet from a car owned by Ramey which was parked by Ramey’s yard gate on his side of the road. Gentry went on into his home.

Mitchell Gentry, 15-year-old son of Alan, testified that he was looking out the window of the home, and saw the Sanders truck stop close to Ramey’s car in the road between the Gentry and Ramey houses. Ramey was talking to the men in the Sanders truck. The witness stated:

The pump was given to Ramey by Sanders. Young Gentry stated that the former, after obtaining the pump-, put air in the tire. “After he pumped up his tire, he just raised up and there was a shot.” The witness said that appellant and Ramey were about 8 or 10 steps apart, and that Ramey was standing by his car when this happened. Ramey had nothing in his hands when this occurred, and Sheriff Waggoner of Newton County testified that an examination of the premises revealed a tire pump, still hooked onto the tire, and a screw driver and hub cap on the ground. No weapons were found, nor was there any gun in the Ramey automobile. Several witnesses testified that they smelled alcohol on Sanders immediately following the shooting, but no one indicated that he was drunk.

Sanders contended that his life had been threatened by Ramey on several occasions, and Ramey stopped appellant’s truck on Christmas afternoon, inquiring if he had a drink of whiskey. Appellant replied that he did not, and was called a vile name by Ramey, after which the latter borrowed a pump from Sanders for the purpose of inflating a flat tire. Sanders said that during the time Ramey was pumping, he was cursing, and saying, “I’m going to have to kill you.” Appellant asserted that he knew Ramey kept a loaded shotgun on the back seat of his automobile, and he said that when the latter reached for the back door of his car, he (Sanders) shot from his hip as he got out of his truck. Appellant stated that he believed Barney was endeavoring to get his gun when he fired the shot.

Steve Sanders, 17-year-old son of C. L. Sanders, testified that the children gave their father a gun rack for Christmas, and he placed the rack in the pickup truck on Christmas morning; he also put the rifle in the rack. The boy stated that he loaded the rifle, because he was going to try to shoot a hawk. The witness also said that Barney threatened to kill his father on the Friday before Christmas.

There was certainly substantial evidence to support the verdict. The uncontradicted proof is that the deceased had no weapon in either his hand or his car. In order to obtain his rifle, Sanders reached behind him to a rack in the back of his truck, took a 30-30 rifle from the rack, stepped from the truck, and fired the shot. During the time that it took appellant to obtain the rife and fire the shot, Barney was still standing on the ground— still without a weapon. The jury could easily have found that Sanders was in no danger of receiving bodily harm, and that he was the agressor and opened fire without any legal justification whatsoever. As stated in Brown v. State, 231 Ark. 363, 329 S.W. 2d 521:

"The proof was adequate to justify a conviction of manslaughter, and in fact, might well have justified a conviction for a higher degree of homicide. ’ ’

As to the second contention, the law is clearly established that a violent disposition toward others on the part of a victim of homicide cannot be shown by specific acts of aggression and misconduct. Taylor v. State, 222 Ark. 491, 261 S.W. 2d 401; Bogue v. State, 152 Ark. 378, 238 S.W. 64. Such violent nature is properly shown by proof of the general reputation of the deceased, and, in fact, five witnesses were offered by appellant who testified that Barney had the reputation of being a violent and dangerous person. Several witnesses also stated that Sanders had the general reputation of being a law-abiding citizen.

The court did permit Sanders to testify about specific threats made to him by the victim, and appellant testified that he had been threatened on the day before the shooting; also, that on the Wednesday before the shooting (which occurred on a Monday) Ramey had been by his house, and told appellant that he was going to kill him “on account of my Dad.” He likewise testified about another occasion when Ramey had purportedly cursed and said, “I am going to kill you all * * * and if I can’t get you with this hammer, I’ll use my shotgun. ’ ’

Actually, though the court held that appellant could not introduce any testimony relative to threats or acts of violence against third persons (and we have already said that this holding was correct), quite a bit of this evidence was heard by the jury. For instance, Sanders testified that Ramey had told him that he was going to kill Troy Magnus; that three years prior to the shooting of Ramey, Sanders’ father had to stop Ramey from killing his (Ramey’s) wife; further, that Ramey “told him that he was burning some man out and laying out there waiting for him to kill him * * * he set Yandell’s barn afire and thought he would come out and he was going to shoot him.”

Finding no reversible error, the judgment is affirmed.

      Sam Willis testified that he did not see the shooting, but he said that he had observed a shotgun in the back seat of the Ramecar several times prior to the day of the killing.

      Also, where a defendant relies upon self-defense, uncommunicated threats toward the defendant are admissible where there is doubt as to who was the aggressor; this evidence is admissible solely for the purpose of shedding light on this question. Decker v. State, 234 Ark. 518, 353 S.W. 2d 168.


author: George Rose Smith, Justice.

text:
    M.F.A. Mutual Insurance Co. v. F. M. McKinley et ux
    5-4686
    432 S.W. 2d 484
    Opinion Delivered October 14, 1968

      Wright, Lindsey & Jennings for appellant.

      Hall & Tucker for appellee.
   George Rose Smith, Justice.

This is an action brought by the appellees, F. M. McKinley and his wife, to recover $10,000 under the uninsured-motorist section of a policy of automobile insurance issued to McKinley by the appellant. In the trial court both parties moved for summary judgment, upon the pleadings and a stipulation of fact. This appeal is from a $10,000 summary judgment for the plaintiffs.

The facts are undisputed. On February 13, 1965, McKinley, while traveling in the course of his employment, was seriously injured in a collision with a car being driven by Gerald Davis, an uninsured motorist. McKinley obtained a judgment against Davis in the amount of $21,833 for his personal injuries; Mrs. McKinley obtained a companion judgment for $4,750 for loss of consortium. The McKinleys then brought this action to recover the maximum coverage of $10,000 under the uninsured-motorist section of the policy issued by the appellant.

The insurance company pleaded as its defense to the suit a clause in the uninsured-motorist section by which it was provided that any amount payable under that section of the policy for bodily injury sustained by the insured “shall be reduced by . . . the amount paid and the present value of all amounts payable on account of such bodily injury under any workmen’s compensation law, disability benefits law or any similar law.” It is shown that McKinley has received workmen’s compensation benefits of $18,720.22 for his injuries.

Even construing the policy strictly against the insurer, as we do, we can find no basis for holding that the quoted clause is not controlling. Needless to say, the parties are at liberty to agree upon any conditions that are reasonable and not contrary to public policy. State Farm Mut. Automobile Ins. Co. v. Belshe, 195 Ark. 460, 112 S.W. 2d 954 (1938). The appellees argue that the clause in question is against the state’s public policy, because Act 464 of 1965 specified the minimum uninsured-motorist coverage to be included in all automobile liability policies. Ark. Stat. Ann. (A 66-4003 to -4006 (Repl. 1966). That act, however, was not approved and did not become effective until after both the issuance of the policy in question and the occurrence of the accident in which McKinley was hurt. Even if we assume, without so deciding, that the clause in question is contrary to the statute, we cannot give the statute a retroactive effect that would cut off a valid defense available to the insurer before the passage of the act.

Alternatively the appellees contend that the uninsured-motorist section of the policy is so ambiguous that it should not serve as a defense to this action. We have studied that section of the policy with care, but we do not find any ambiguity affecting the issue now presented. To the contrary, the contract unmistakably states that any amount payable under that section of the policy shall he reduced by the amount paid under any workmen’s compensation law on account of the insured’s bodily injury. The facts of this case bring it squarely within that provision of the contract. In fact, the appellees’ brief does not point to any ambiguity in the contract; it is merely argued that the uninsured-motorist section of the policy is unnecessarily long. That may he, hut excessive verbiage is not in itself a basis for refusing to give effect to contractual provisions that are so clearly stated as to he beyond any possibility of misunderstanding.

Reversed and dismissed.


text:
    Chester L. Morgan et al v. Paul Downs
    5-4688
    432 S.W. 2d 454
    Opinion Delivered October 14, 1968

      Sullivan & Causbie for appellant.

      Murphy & Arnold and H. David Blair for appellee.
   George Rose Smith, Justice.

This suit was brought by the appellants, Chester and Lorene Morgan, to quiet their title to a 440-acre tract of land in Sharp county. The defendant, Paul Downs, asserted title to the land by adverse possession. The chancellor entered a decree for the defendant upon a finding that the plaintiffs had failed to prove their title by a preponderance of the evidence.

From the abstracts and briefs we are unable to say with confidence that the chancellor was right in holding that the Morgans failed to prove their record title. It it our rule, however, that on trial de novo a chancery decree will be affirmed if it appears to be correct upon the record as a whole, even though the chancellor may have given the wrong reason for his conclusion. Culberhouse v. Hawthorne, 107 Ark. 462, 156 S.W. 421 (1913). Under that rule the decree must be affirmed, because the appellee’s proof established his title by adverse possession. Although it is true, as the appellants insist, that Downs did not prove color of title to the entire 440 acres, that fact is immaterial if he established Ms actual adverse possession of the property for a period of seven years or more. Ferguson v. Peden, 33 Ark. 150 (1878). Where there is actual physical possession of the property for the statutory period, color of title is not required for the investiture of title.

Chester Morgan admitted on the witness stand that he had not had possession of the land in any way; so the question is whether Downs’s proof sufficiently established his claim of title by adverse possession. We are convinced by our study of the record that he met that burden of proof.

During the pivotal years the tract was, according to the weight of the testimony, completely enclosed, mainly by a fence and to some extent by a bluff that served the same purpose as a fence. Several of Downs’s employees — Vernon Coggin, Truman Wiles, Claud Turner, Herbert Wilson, and Veri Chism — testified that the fence around the land had been maintained for from seven to fifteen years preceding the lawsuit. Three of those witnesses- — -Turner, Wilson, and Chism — testified that they had “ridden” the fence for more than seven years, checking upon its condition every week or two and making repairs as they were needed. There is some proof to the contrary, but the testimony of Downs’s witnesses on this point is decidedly more convincing than that of the Morgans.

Downs, in addition to keeping the land enclosed, used it for pasturing cattle. Coggin, Wiles, Turner, Wilson, Horace Phelps, and Earl Estes all testified that the tract had been used by Downs for many years as a pasture for his cattle. Turner and Wilson both stated that Downs had kept about 125 head of cattle on the land. There was also proof that Downs had caused timber to be cut from the land from time to time.

To sum up, Downs offered the testimony of no fewer than ten witnesses, including the father of the plaintiff Chester Morgan, on the issue of adverse possession. That convincing array of witnesses was opposed by only three persons who testified for the Morgans. One of those three was Chester Morgan himself ; another was his father-in-law. Although the chancellor did not find it necessary to determine the issue of adverse possession, we are convinced by the record that the appellee is entitled to prevail on that question alone, without regard to the appellants’ proof of title.

The appellants also argued that part of the land enclosed by Downs’s fence was owned by other persons and was in turn enclosed by inner cross-fences. Even so, Downs’s fence put the Morgans on notice of his his-tile occupancy. Burns v. Mims, 224 Ark. 776, 276 S.W. 2d 76 (1955).

Affirmed.

Byrd, J., not participating.

Jones, J., dissents.


author: Paul Ward, Justice.

text:
    Edward Lee Jackson v. State of Arkansas
    5364
    432 S.W. 2d 876
    Opinion Delivered October 14, 1968
    [Rehearing denied November 18, 1968.]

      Gary L. Eubanks and Phillip K, Kinsey for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   Paul Ward, Justice.

On the night of September 8, 1967 Edward Lee Jackson, appellant, allegedly shot and killed Charles Newman Edwards, at Perciful’s Drive-In at 515 West Eighth Street in Little Rock. He was charged with murder in the first degree. Upon trial he was convicted of murder in the second degree and was sentenced to fifteen years in the penitentiary— hence this appeal.

Background Facts. On the night in question, at about eight p.m., while five or six white persons were drinking beer at the Drive-In, they heard a scream on the outside of the building. Upon investigation they saw a Negro man beating a Negro woman. The manager of the Drive-In came out and told them he was going to call the police. At about this time four Negro youths (one being appellant) offered to take the Negro man and woman away and take care of them — to which the manager agreed — but the Negro woman started to scream, and said they would kill her. Thereupon, the white people allowed the Negro youths to take the Negro man away, but told them to let the Negro woman stay. Then the Negro youths got into their car, with appellant and Raymond Henderson in the back seat. Presently several witnesses saw gun fire coming from the back seat, and one of the bullets hit Edwards and killed him. Later it was determined that appellant was the owner of a .25 caliber pistol which was found in his possession, and that Henderson was the owner of a .22 caliber pistol. It was determined that Edwards was hit (and killed) by a .25 caliber bullet, and an FBI ballistic expert testified that the bullet taken from the body of Edwards was fired from the pistol found in the possession of appellant.

Seeking a reversal of the trial court, appellants argue five separate points which will be discussed in order. First, however, we point out that appellants do not specifically question the sufficiency of the evidence.

One. It is first contended that the court erred in refusing to grant a mistrial. This is based on the fact the mother of the deceased was allowed to sit at the counsel table, during a recess period of the court, while six of the jurors were iu the jury box. It is also pointed out by appellant that these jurors observed her crying.

We are unable to find that any reversible error has been shown. The granting or denial of a motion for a mistrial is within the sound discretion of the trial court, and such discretion, when exercised, will not be disturbed on appeal unless shown to have been abused. See: Briley v. White, 209 Ark. 941, 193 S.W. 2d 326. No such abuse is shown here. On the contrary the allegation of facts relied on by appellant are in dispute. It is not error, per se, for near relatives of an accused person to be present (and cry) during the trial. Tiner v. State, 109 Ark. 138 (p.149), 158 S.W. 1087. To the same effect see Freels v. State, 130 Ark. 189, 196 S.W. 913.

Two. We find no reversible error in the court’s refusal to grant a mistrial because of its alleged reprimand of appellant’s counsel in the presence of the jury.

In the first place, appellant, in his argument, set out no specific objectionable conduct on the part of the court. However, we have read that portion of the transcript which deals with this incident, and find nothing to show reversible error. As previously pointed out, the matter of granting a mis-trial lies largely within the sound discretion of the trial court.

Three. It is here contended by appellant that the court committed reversible error in refusing to give his requested instruction no. 3 on self-defense.

This contention must be denied because appellant fails to point out any testimony (and we find none in the record) to justify the giving of such an instruction. In fact, appellant’s testimony was to the effect that he was shooting at the ground and did not intend to shoot Edwards, and he was not in fear of his own life. Ark. Stat. Ann. § 41-2236 (Repl. 1964), in material part reads:

“In ordinary cases of one person killing another in self-defense, it must appear that the danger was so urgent and pressing, that in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary, and it must appear also that the person killed was the assailant ...”

There is no semblance of a showing here that appellant was in fear of being killed or injured by the deceased.

Four. Here, it is appellant’s contention the court erred in refusing him a continuance.

Ark. Stat. Ann. § 43-1705 (Kepi. 1964) provides that the court, upon sufficient cause shown, may direct the trial to be postponed to another day. This statute has been construed many times by this Court — dating from Thompson v. State, 26 Ark. 323 to Perez v. State, 236 Ark. 921, 370 S.W. 2d 613. In the first cited case the Court said that the granting of continuances in criminal cases is within sound discretion of the court, and the trial court’s decision will not be disturbed on appeal “unless it clearly appears to have been an abuse of discretion”. In the other cited case we said:

“There is no doubt that the granting or refusing of a motion for continuance is addressed to the sound discretion of the trial court”, citing cases.

Under the record in this case we are unwilling to hold the trial court abused its discretion in refusing to grant appellant’s motion for a continuance. It appears that appellant did not use due diligence in an effort to secure the fatal bullet and gun, and a ballistic report thereon. It appears appellant had three weeks time in which to do so but waited until one week before the trial before starting an investigation. The same lack of diligence appears in an effort to secure certain other evidence. Also, there was no convincing testimony that snch evidence was admissible or could be obtained.

Five. Finally, it is contended the court erred in refusing to quash the Petit Jury Panel. This contention is based mainly on the general assertions that: (a) there were no Negroes on the Jury Commission; (b) all Negroes on the petit jury were challenged peremptorily by the state; and, (c) the proportion of Negroes on the jury did not equal their proportion to the total population. Again, we find no reversible error.

(a) The mere showing that in this case no Negro was serving on- the Jury Commission does not constitute a violation of appellant’s constitutional rights. See: Moore v. Henslee, 276 Fed. 2d 876 (p. 878), 244 F. Supp. 982 (p. 986).

(b) The mere fact that the state peremptorily challenged all the Negroes on the petit jury does not constitute a showing that any of appellant’s constitutional rights were violated. See Swain v. Alabama, 380 U.S. 202 (p. 221).

(c) The fact (though not proven here) that the proportion of Negroes on the petit jury which tried appellant is less than their proportion to the total population does not, alone, amount to a violation of Ms constitutional rights. Particularly is this true in the absence of a showing that Negroes are being spstematically excluded from the juries in Pulaski County. No such showing has been made in this case. This same contention was made in People v. Cohen, 283 N.Y.S. 2d 817 (p. 823) where we find this statement: “To sustain this contention, appellants were compelled to show that there had been a systematic and intentional exclusion . . . ” In U.S. v. Cohen, 275 F. Supp. 724 (p. 743) it was stated that “. . . the inclusion of the exact proportionate representation of every group is not required”. See, to the same effect, the case of People v. Henny 284 N.Y.S. 2d 726 (p. 730).

Finding no reversible error, the judgment of the trial court is affirmed.

Fogleman, J., concurs.


author: Lyle Brown, Justice. John A. Fogleman, Justice.

text:
    Leon Satterfield v. State of Arkansas
    5375
    432 S.W. 2d 472
    Opinion Delivered October 14, 1968

      Ben McCourtney & Associates by David N. Laser for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   Lyle Brown, Justice.

Leon Satterfield appeals from a conviction for arson involving the alleged setting fire to a barn. The issues raised which are determinative of the appeal concern (1) the refusal of the court to submit to the jury the question of whether three of the State’s witnesses were accomplices, and (2) the injection into the trial of evidence of other alleged acts of arson.

On an October night, 1967, a barn filled with baled, dry hay, and located on the outskirts of Salem, Fulton County, was destroyed by fire. The principal witnesses for the State were three teenagers, two boys and a girl, who testified in substance that they were in Satterfield’s car and accompanied him to the scene; that the defendant mentioned his intentions before arriving; that upon arrival, Satterfield stopped the car some twenty-five yards from the barn and proceeded to the nearest barn corner; that he returned to the car in a matter of minutes and drove away; that after driving a short distance they saw the fire develop, coming from the corner of the barn where Satterfield had stopped. Other pertinent facts will be related as appellant’s two principal points are discussed.

Point I: The Trial Court'Erred in Refusing to Give Reguested Instructions Which Would Permit the Jury to Determine Whether Satterfield’s Three Companions Were Accomplices. We hold this point to be meritorious. The three witnesses and appellant were well acquainted, of approximately the same age, and their social activities often brought them together. There was testimony that Satterfield and at least one of his companions had been drinking intoxicants that night. The girl had been with appellant continuously for more than two hours preceding the fire; the two boys joined the couple in Satterfield’s car at a dairy diner; the four rode around town and then headed out on the county road toward the barn; there was testimony that Satterfield pointed out the barn and that one of the companions remarked that it was filled with hay; the companions sat by while Satterfield purportedly went to set the fire; a return trip was then made to the dairy diner; after eating a sandwich and fixing a flat tire, Satterfield and the two boys returned to the scene of the fire and watched the burning for some ten or fifteen minutes.

There is another circumstance which might well have been significant to the jury. So far as the record discloses, none of the companions revealed their knowledge of the crime, at least until they were faced with evidence of that knowledge. The passive failure to disclose commission of a crime does not make one an accessory after the fact; however, the failure to so disclose could shed light on his relation with the wrongdoer at the time the crime was committed.

One who stands by and aids, abets, or assists in the perpetration of a crime is an accessory before the fact. Ark. Stat. Ann. § 41-119 (Repl. 1964). When the Legislature used the phrase “one who stands by and . . . abets” it is assumed it was not playing with words; to the contrary, an abettor is well recognized in the law. If one stands by and aids, he gives assistance and support to supplement the efforts of the principal; that action does not really describe an abettor, although “aid” and “abet” are often used as synonymous. If one stands by and encourages, baits, or incites the commission of a crime he is an abettor. State v. Western Union Tel. Co., 80 A. 2d 342 (1951); see Black’s Law Dictionary 4th Edition. Also, see Ark. Stat. Ann. § 41-504 (Repl. 1964), which is a strongly worded statute covering accomplices to arson.

In connection with Point I, we have given consideration to two well-established rules of this court:

First: “Whether a witness is an accomplice to an alleged crime is, generally speaking, a question of fact for the jury. At least, if the facts are in dispute, it is a mixed question of law and fact.” Rogers v. State, 136 Ark. 161, 206 S.W. 152 (1918); and,

Second: “The test, generally applied to determine whether or not one is an accomplice, is, could the person so charged be convicted as principal, or an accessory before the fact, or an aider and abetter upon the evidence?” Simon v. State, 149 Ark. 609, 233 S.W. 917 (1921).

We hold that the status of Satterfield’s companions was a question of fact for the jury, and that there were sufficient facts produced which meet the test in Simon, particularly in light of the inclusion of abettors as accomplices. See Boyd v. State, 215 Ark. 156, 219 S.W. 2d 623 (1949).

Point II. The Court Erred in Allowing the Prosecuting Attorney to Make Any Remarks in His Opening Statement to the Jury Concerning Alleged Prior Similar Offenses, and in Refusing to Instruct the Jury at the Close of all the Evidence to Disregard Those Remarks. In Ms opening statement the prosecutor toM the jury that he planned to show similar incidents of fires for the purpose of “showing intent, scheme, design, and so forth.” The testimony about another fire that night was very meager and the single witness who mentioned it never described it, never located it, and certainly did not connect the defendant with it.

At the close of all the testimony, counsel for defendant asked that the jury be instructed to disregard the prosecuting attorney’s opening reference to prior similar offenses. That was not an unreasonable request and we think, under the circumstances, it should have been granted. Another fire had been mentioned in the testimony and the trial court frankly conceded that it was of no value. So when the sketchy testimony and the prosecuting attorney’s statement are combined it is not improbable that some jurors may have developed the idea that the defendant was in fact connected with another fire. The accused had a right to have that possibility removed. Further, we have examined the instructions and we find that the standard instruction to the jury to disregard opening statements and closing arguments as evidence was not given.

To our holding on Point II should be added a comment for the guidance of the court in the event of retrial. Evidence of other incidents of arson would not be admissible unless that evidence can be shown to meet the test announced in many decisions. See Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954) and the numerous cases there cited. Ve adhere to the majority rule which is discussed in 22A C.J.S., Criminal Law § 682:

“The general rule, which is subject to exceptions stated infra §§ 683-690, is that, on a prosecution for a particular crime, evidence which shows or tends to show that accused has committed another crime wholly independent of, and unconnected with, that for which he is on trial, even though it is a crime of the same sort, is irrevelant and inadmissible.”

Another point raised by appellant should be mentioned. It concerns the alleged right of a woman juror, who has been summoned and sworn in on the panel, to then assert her privilege of declining to serve. The answer to that question involves the constitutionality of Ark. Stat. Ann. §39-113 (Repl. 1962). Our Constitution and statutes provide that no woman can be compelled to do jury duty. However, the cited section requires her to decline service at the time she is notified “and not thereafter.” We do not pass on constitutional questions unless it is necessary to a disposition of the litigation. Searcy County v. Stephenson, 244 Ark. 54, 424 S.W. 2d 369 (1968).

Reversed and remanded.

Fogleman, J., dissents.

John A. Fogleman, Justice.

I dissent from the reversal of this case because I am not convinced that we could sustain a conviction of the witnesses who are alleged to be accomplices of appellant if the state’s evidence were exactly what we have before us.

If these alleged accomplices, Jerry Turner, Larry Dunn and Divine Coggins, were tried on this testimony, we would have substantially the following:

Divine Coggins was with Leon Satterfield for about three and one-half hours beginning about 6:30 p.m. on the day the barn was burned. She rode around with him in Salem until about 9 p.m. when they went to a Dairy Queen there. Sometime about 9:30 they were joined by Jerry Turner and Larry Dunn. Appellant had been driving his own car and drove it at all times on this evening. Appellant had been drinking Country Club Malt Liquor. The four left the Dairy Queen and shortly thereafter, appellant turned his car off the highway onto a dirt road along which the Wolf barn was located. After he pulled off the highway, appellant made some statement about the barn, either to the effect that the barn would “burn good” or said: “There’s a barn there we missed.” Jerry Turner responded that the barn was full of hay and appellant remarked: “That will make it burn better.” When appellant said something about burning the barn, the others told him not to and said he had better not. When appellant was talking, he wasn’t really making much sense about anything. He just jabbered but the main thing he was talking about was burning the barn.

Jerry Turner, while in the car with appellant, had seen a fire about five miles away from the Wolf barn some 15 or 20 minutes earlier. This fire was never identified as to place or nature. Jerry Turner knew when appellant made his remarks that he was talking about burning the barn. Appellant did not say he was going to burn the barn and was laughing and talking when he made the remarks mentioned. The party arrived at the barn about 30 or 45 minutes after leaving the Dairy Queen. Appellant turned around, parked his car, jumped out and went toward the barn. As he walked, he was laughing and hollering as one does when drinking. He went to the barn which was about 25 yards from the road. No one went down to the Wolf barn except appellant and none of the others got out of the automobile at that place. Jerry Turner denied knowing that appellant was going to burn the barn prior to the time the car was stopped and appellant got out. He was not sure of appellant’s intention even then. After appellant returned to the automobile, the others felt that he had set the barn on fire because they saw a blaze on the side of the barn nearest the spot where appellant had parked his automobile. Divine Coggins did not see the fire until appellant was turning his car back onto the highway. On the way back to Salem, they met Pat Dunn, Larry’s sister, and Divine Coggins got in a car with her and returned to Salem. Later, en route to Salem, the three remaining members of the party had to fix a flat tire on appellant’s car. "While the boys were fixing the flat tire, someone hollered to them that a barn was afire out there. They went back to the Wolf barn and watched the fire for five or ten minutes. About 25 minutes had elapsed from the time they left the barn until they started back. When they left, Jerry Turner and Larry Dunn rode back to Salem in a car driven by one Junior Boss.

The latest case in this court in which a similar question was considered is Burke v. State, 242 Ark. 368, 413 S.W. 2d 646. There we sustained a conviction of arson on the testimony of an alleged accomplice. The crime was the burning of a barn containing hay. In that case, Baram Powell, the alleged accomplice, had been seen in the company of the principal in the vicinity of the burned property on the evening before the fire. The parties were drinking on that evening and drove by the property at least three times. On the night of the fire, Burke and Baram Powell and Burke’s wife returned to the scene. Burke and Powell got out of Powell’s pickup truck in which they were riding, climbed a fence and walked several yards out toward the barn. When in sight of the barn, Burke announced that he was going to burn it and Powell was going to burn another building. Powell said that he would not and went back to the pickup truck. He got in the truck with Burke’s wife and she drove the truck some distance, turned it around and drove back near the place where Burke and Powell had crossed the fence. Burke then climbed back across the fence and got into the pickup truck, at which time the fire was going pretty good. There was testimony that Paul Burke had made the statement that he and Powell were supposed to have burned the barn but that Powell and Burke’s wife had backed out and he burned it himself.

In sustaining the conviction, we said that the evidence was sufficient to support the jury’s finding that the witness was not an accomplice. In that opinion, we restated the proper test to be applied in questions of this sort. We there said:

“In the case of Simon v. State, 149 Ark. 609, 233 S.W. 917, this court said:
‘The test, generally applied to determine whether or not one is an accomplice, is: Could the person so charged be convicted as a principal, or an accessory before the fact, or an aider and abetter upon the evidence? If a judgment of conviction could be sustained, then the person may be said to be an accomplice; but, unless a judgment of conviction could be had, he is not an accomplice.
# * *
The term “accomplice” cannot be used in a loose or popular sense so as to embrace one who has guilty knowledge, or is morally delinquent, or who was even an admitted participant in a related, but distinct offense. To constitute one an accomplice he must take some part, perform some act, or owe some duty to the person in danger that makes it incumbent on him to prevent the commission of the crime. Mere presence, acquiescense, or silence, in the absence of a duty to act, is not enough, however reprehensible it may be, to constitute one an accomplice. The knowledge that a crime is being or is about to be committed cannot be said to constitute one an accomplice. Nor can the concealment of knowledge, or the mere failure to inform the officers of the law when one has learned of the commission of a crime.’
This court has defined an accomplice as one who could himself be convicted of the crime charged against the defendant, either as principal or accessory. Henderson v. State, 174 Ark. 835, 297 S.W. 836.”

In Butt v. State, 81 Ark. 173, 98 S.W. 723, the contention was made that the question whether a witness was an accomplice should have been submitted to the jury. It was held that the failure to submit the question was not error, since mere silence in the presence of a crime or mere failure to inform the officers of the commission of a crime did not make one an accomplice. Even concealment of a crime, to constitute one an accessory thereto, requires some affirmative act which tends to conceal its commission or a refusal to give knowledge when sought by officials. The mere passive failure to disclose the crime is not sufficient. Davis v. State, 96 Ark. 7, 130 S.W. 547.

The majority place great emphasis on the word “abet” in the statute defining an accessory before the fact and in the statute defining the crime of arson. When the definition of the word “abettor” is examined, nothing is added to our own test for determining whether one is an accomplice. In Webster’s New International Dictionary, Second Edition, in considering synonymous terms, we find the following:

“An Accessory is neither the chief actor in an offense nor a person present at its performance, but one who accedes to or becomes involved in its guilt, by some act either previous or subsequent, as of instigating, encouraging, aiding, or concealing, etc. An Abettor is one who is actually or constructively present at the commission of the deed and contributes to it by moral or physical force. An accomplice is one who with criminal intent participates in the commission of an offense, whether as principal, abettor, or accessory.”
In Black’s Law Dictionary, we find the following:
“ABET. A French word combined of two words ‘a’ and ‘beter’ — to bait or excite an animal. It includes knowledge of the wrongful purpose of the perpetrator and counsel and encouragement in the crime. People v. Terman, 4 Cal. App. 2d. 345, 40 P. 2d 915, 916.
To encourage, incite, or set another on to commit a crime. This word is always applied to aiding the commission of a crime. To abet another to commit a murder is to command, procure, or counsel him to commit it, Old Nat. Brev. 21; Co. Litt. 475; to command, procure, counsel, encourage, induce, or assist, Short v. Commonwealth, 240 Ky. 477, 42 S.W. 2d 696, 697; to encourage, counsel, induce, or assist, State v. Watts, Nev., 296 P. 26. To facilitate the commission of a crime, promote its accomplishment, or help in advancing or bringing it about. State v. Lord, 42 N.M. 638, 84 P. 2d 80, 86. It includes knowledge of wrongful purpose of perpetrator. Daniels v. State, 58 Ga. App. 599, 199 S.E. 572, 577. State v. Kneedy, 232 Iowa 21, 3 N.W. 2d 611, 615. People v. Stein, 55 Cal. App. 2d 417, 130 P. 2d 750, 751 * * *
‘Aid’ and ‘abet’ are nearly synonymous terms as generally used; but, strictly speaking, the former term does not imply guilty knowledge or felonious intent, whereas the word ‘abet’ includes knowledge of the wrongful purpose and counsel and encouragement in the commission of the crime. Forgery, People v. Dole, 122 Cal. 486, 55 P. 581, 68 Am. St. Rep. 50; Raiford v. State, 59 Ala. 106; Violation of law against free passes. State v. Anhrom, 86 W. Va. 570, 103 S.E. 925, 927; Crime against nature, State v. Start, 65 Or. 178, 132 P. 512, 513; Robbery, People v. Potoers, 293 Ill. 600, 127 N.E. 681, 682.
Instigate synonymous (malicious prosecution) Hughes v. Van Bruggen, 44 N.M. 534, 105 P. 2d 494, 499.
‘Abet’ smacks more of technical terminology than does the word ‘aid’, but it is almost synonymous with the word ‘aid’. Assault and battery, Gentry v. State, 65 Ga. App. 100, 15 S.E. 2d 464, 465.
*
ABETTOR. In criminal law. An instigator, or setter on; one who promotes or procures a crime to be committed. Old Nat. Brev. 21. One who commands, advises, instigates, or encourages another to commit a crime; a person who, being present or in the neighborhood, incites another to commit a crime, and thus becomes a principal. See State v. Baldwin, 193 N.C. 566, 137 S.E. 590, 591.
Must have rendered assistance or encouragement to the perpetrator of the crime with knowledge of his felonious intent; offense of ‘aiding and abetting’ being committed by person present who does some act or speaks some word aiding the actual perpetrator of the crime. Combs v. Commonwealth, 224 Ky. 653, 6 S.W. 2d 1082,-1083. Must aid or commit some overt act or act of encouragement. Long v. Commonwealth, 288 Ky. 83, 155 S.W. 2d 246, 247. One who so far participates in the commission of the offense as to be present for the purpose of assisting if necessary. State v. Epps, 213 N.C. 709, 197 S.E. 580, 583.
The distinction between abettors and accessories is the presence or absence at the commission of the crime. Cowell; Fleta, lib. 1, c. 34. Presence and participation are necessary to constitute a person an abettor. 4 Sharsw. Bla. Comm. 33; Bradley v. Commomvealth, 201 Ky. 413, 257 S.W. 11, 13.”

I find nothing to indicate that either of Satterfield’s companions took any part or performed any act in furtherance of the crime. Nor do I find any evidence of duty on their part to the owner of the property, making it incumbent upon them to prevent the crime. Neither do I find any evidence that they contributed to the commission of the crime by moral or physical force. Certainly we could not sustain a finding that they commanded, assisted, procured, counseled, encouraged, incited or set Satterfield on to burn the barn.

I am not unaware of the case of Boyd v. State, 215 Ark. 156, 219 S.W. 2d 623, cited by the majority. I think that it is distinguishable. A cousin of the alleged accomplice was charged with possession of stolen goods. The husband of the alleged accomplice, an employee of the owner of the stolen property, testified that both his wife and her cousin were with him at the time he stole the goods, knew that they were stolen, and aided and abetted him in the theft. He stated that his wife asked him not to take the property and warned him that he would get into trouble. The wife was charged with the same offense as her husband. In view of the testimony of the husband, the court held that the question whether she was an accomplice should have been submitted to the jury, even though her own testimony would not have incriminated her.

While I agree that it would have been the better practice for the court to give the requested cautionary instruction about the prosecuting attorney’s reference to prior offenses in his opening statement, I do not feel that its failure to do so was reversible error. The prosecuting attorney’s opening statement is not in the record. In ruling on the appellant’s request for an instruction, the trial court said that the prosecuting attorney made the statement that there would be some testimony relating to other incidents but didn’t introduce it. In a hearing on the motion for new trial, the trial judge stated that the prosecuting attorney did mention in his opening- statement that the state planned to show that there were similar incidents but it would be for the purpose of showing intent, scheme, design, etc. Accepting the court’s statements at full face value and drawing all inferences possible therefrom in favor of appellant, I cannot see any prejudice in refusing this instruction when the prosecuting attorney failed in his efforts to show the similar incidents, particularly when his opening statement properly limited the purpose for which such evidence could have been considered. The requested instruction might have served only to reemphasize the prosecuting attorney’s opening statement to the prejudice of the defendant.


text:
    W. J. Stocker and Mrs. C. F. Dugan v. The Southwestern Company
    5-4671
    432 S.W. 2d 481
    Opinion Delivered October 14, 1968

      Estes & Brazil for appellants.

      Walter R. Niblock, Richard Hipp and Mahlon G. Gibson fox appellee.
   John A. Fogleman, Justice.

W. J. Stocker appeals from a summary judgment against him. The cause of action was instituted on March 21,1967 by The Southwestern Company. In its complaint it sought to recover from appellant and Mrs. C. F. Dugan, jointly and severally, the amount of $500 on an indemnity agreement executed by them. Under this agreement, Dr. Stocker and Mrs. Dugan made themselves responsible for payment for books and cash furnished to one James Orion Baxter under a contract by which Baxter became a dealer in publications issued by appellee. This contract required Baxter to mail a complete report to the company at the end of each week and to remit, weekly during the selling season and daily during the delivery period, all money collected, with the exception of necessary business expenses. Stocker and Mrs. Dugan agreed to make payment if Baxter failed to do so within thirty days after the selling season. The limit of their total liability was $500. There is nothing in the record to show that process was ever served upon Mrs. Dugan, although she was named a party defendant in the complaint.

Appellant filed a motion on June 16, 1967, demanding that appellee proceed against the principal, Baxter, before proceeding against him. The only service of this notice was made upon the attorney for The Southwestern Company. Subsequently, on July 13, Stocker filed a motion demanding that The Southwestern Company proceed against both the principal and the other surety before proceeding against him. No service of this motion was had upon anyone except appellee’s attorney.

On August 23, appellant filed a motion for summary-judgment, claiming that appellee had failed to commence suit against the principal and the other surety within thirty days after notice as required by Ark. Stat. Ann. § 34-333 (Repl. 1962). He contended that he was exonerated from liability for this reason, under Ark. Stat. Ann. § 34-334. A receipt for mail addressed to Mr. Fred Landers, The Southwestern Company, Nashville, Tennessee, with a Fayetteville postmark of July 13, was exhibited. A supporting affidavit by Stocker incorporated correspondence between him and appellee. One of the letters, dated February 10, 1966, suggested to appellee that the account should be turned over to an Oklahoma City collection agency. In short, Dr. Stocker stated that he did not feel that appellee had exhausted all areas of collection until an attempt through such an agency resulted in failure. The response to this suggestion advised Dr. Stocker that a collection agency would call upon him and Mrs. Dugan when attempts at collection from Baxter were unsuccessful and that this would simply result in a 50% loss to the company. In a separate letter on the same date, appellee made a formal demand on Dr. Stocker for the payment of the $500 guarantee. Another exhibit to this motion for summary judgment was a copy of a letter from the collection manager of appellee to Baxter at Oklahoma City dated March 1, 1966, in which payment was demanded and means suggested by which Baxter might reduce the debt and pay the balance. Controverting affidavits opposing the motion were filed by appellee. They were made by Bill Swindler, who stated that he was in charge of the books, records and accounts of the company and familiar with the transaction. One of the affidavits stated that Baxter had no property in Arkansas upon which execution or attachment could be had. The other stated that, after default, Baxter left Arkansas and absconded to Oklahoma, and that appellee’s attempts to locate him only brought information that Baxter had joined the navy. According to affiant, The Southwestern Company was unable to obtain service of process on Baxter and to judicially pursue the debt because of the fact that he was then in the navy. Affiant further stated that Baxter was a minor at the time of the execution of his contract and that his company could not proceed with a law suit due to the fact that Baxter had renounced liability.

Appellant’s motion for summary judgment was denied on October 23, 1967, upon the ground that the opposing affidavits created material issues of fact. Appellant contends that this action by the trial court was erroneous. While there is probably support for the action of the trial court in this regard, we need not consider this point for we have held that an order denying a motion for summary judgment is not appealable. Carl W. Widmer v. Fort Smith Vehicle & Machinery Corp., 244 Ark. 971, 429 S.W. 2d 63. Stocker filed an answer denying the material allegations of appellee’s complaint. One of his defenses was the claim of exoneration of appellant by reason of notice to appellee to enforce the obligation of the principal and other surety, and failure of appellee to act as required by Ark. Stat. Ann. § 34-334.

By reason of appellant’s failure to answer a request for admissions, it is deemed admitted that appellant signed the instrument upon which he was sued, that appellee had demanded payment and that payment had not been made. Ark. Stat. Ann. § 28-358 (Repl. 1962). On January 18, 1968, appellee filed its motion for summary judgment based on all pleadings and upon an additional affidavit of Bill Swindler. In this affidavit, Swindler stated that Baxter was indebted to appellee in the amount of $774.61 under the contract; that appellee had performed the terms and conditions of both contracts; that Stocker had signed the instrument; that appellee had demanded payment and that payment had been refused by Stocker. Shortly thereafter, appellant filed another motion for summary judgment based on the contention that he was exonerated by reason of the failure of appellee to commence suit within thirty days after Ms letter of February 10, 1966, and the notice of July 13.

On February 12, 1968, tbe trial court found that there were no issues of material fact and granted appellee a summary judgment. In the order on these motions for summary judgment, the trial court recited that Mrs. C. F. Dugan had removed herself from the state and the sheriff was unable to locate her for the service of process. The court denied appellant’s motion for summary judgment. Of course, the denial of appellant’s second motion for summary judgment was not an appealable order.

The only argument advanced for reversal is based upon the contention that appellant was exonerated by Ark. Stat. Ann. §§ 34-333 — 4. In considering tMs argument, we must give this statute a very strict construction, as we have always done. Cummins & Fenno v. Garretson, 15 Ark. 132; Sims v. Everett, 113 Ark. 198, 168 S.W. 559. Under a strict construction of the act, appellant’s letter of February 10, 1966 cannot be considered as notice in writing, requiring the person having such right of action, forthwith to commence suit against the principal debtor, and the party liable.” There was a suggestion of resort to a collection agency only. Furthermore, no mention was made of the other surety in this request, as reqMred by strict construction of the statute. The W. T. Rawleigh Co. v. Moore, 196 Ark. 1148, 121 S.W. 2d 106.

The motion and notice of June 16th was not relied on by appellant, probably because no demand for action on the other surety was included.

Insofar as the motion and notice of July 13th is concerned, appellant cannot assert any rights under the act in question because it was repealed by § 36 of Act 303 of 1967. This act did not contain an emergency clause, so it became effective on June 29, 1967, ninety days after adjournment of the 1967 regular session of the General Assembly. Fulkerson v. Refunding Board, 201 Ark. 957, 147 S.W. 2d 980.

Appellant could not, in any event avail himself of the benefit of the statute upon which he relied by reason of the fact that notice to the attorney is not sufficient notice to the creditor. The act requires the service of notice on the creditor. See Cummins & Fenno v. Garretson, supra. Appellant argues that his service of notice upon appellee’s attorney was adequate because of Ark. Stat. Ann. § 27-1210 (Repl. 1962). We do not agree. Section 27-1210 is applicable only for the giving of notice of a motion or proceeding to be taken in court or before a judge. The notice required by Ark. Stat. Ann. §§ 34-333 — 4 is not of this type. A similar statute to § 27-1210 was considered in Cummins & Fenno v. Garretson, supra, and it was held that notice of this type to the attorney, either before suit or during the progress thereof, was not sufficient.

Since we find no merit in appellant’s contentions, the judgment is affirmed.

Byrd, J., concurs.


text:
    Carl E. Wright, et al v. City of Little Rock, et al
    5-4742
    432 S.W. 2d 488
    Opinion Delivered October 14, 1968

      Warren & Bullion for appellants.

      Joseph C. Kemp; Perry V. Whitmore and Spitzberg, Mitchell & Hays for appellees.
   John A. Fogleman, Justice.

Certain property owners who protested a rezoning ordinance of the Little Rock Board of Directors have appealed from an order of the Pulaski Circuit Court granting appellees’ motion which had questioned the constitutionality of Ark. Stat. Ann. § 19-2830.1 (Supp. 1967) Section 2 of Act 134 of 1965). The provisions of this section purport to require a de novo trial by jury of any final action taken by administrative, quasi-judicial and legislative agencies in certain matters pertaining to municipal planning and zoning.

The circuit court’s order on the motion did not dispose of appellants’ petition but left the matter pending for a review by the trial court, without a jury, to determine whether the ordinance was arbitrary, capricious or unreasonable. It was specifically alleged in appellants’ petition for appeal filed in the trial court that the action of the Board of Directors was arbitrary, capricious, unreasonable and an abuse of discretion. Even though this order did not terminate the action, dismiss or discharge the parties, or finally conclude the rights of appellants in the controversy, appellants still contend that the order denying them a trial de novo and a jury trial is appealable.

Even when the decision on a motion has been based on a determination as to the constitutionality of an act, it is not appealable unless it constitutes a final order, judgment or determination in the court from which the appeal is taken. State v. Greenville Stone & Gravel Co., 122 Ark. 151, 182 S.W. 555.

Appellants rely on Parker v. Murry, 221 Ark. 554, 254 S.W. 2d 468, as authority for their position that the order in this ease was appealable. There the court held that an order holding that the Attorney General not only had the right, at his option, to intervene in a case instituted by the Commissioner of Revenues, but also had the right, as intervenor, to direct and control the litigation was a final and appealable order. The basis for the holding in that case was a finding that a distinct and severable branch of the cause had been finally determined, although the suit was not ended. Here, we cannot say that the order denying trial de novo by jury and limiting the scope of review by the trial court, constitutes final determination of a distinct or severable branch of the case.

Therefore, we have no jurisdiction and dismiss the appeal as premature.

Byrd, J., not participating.


text:
    Arkansas State Highway Commission v. Josephine Maus, et al
    4676
    432 S.W. 2d 478
    Opinion Delivered October 14, 1968

      Thomas B. Keys and Billy Pease for appellant.

      Laws & Schulzee for appellees.
   J. Fred Jones, Justice.

By condemnation under eminent domain, the Arkansas State Highway Commission took 60.8 acres of a 66 acre tract of land belonging to Joe Maus in Pope County, Arkansas. The commission paid $6,140.00 into the registry of the court as estimated compensation. A jury trial in the Pope County Circuit Court resulted in a judgment for Maus in the amount of $16,400.00 and the highway commission has appealed. It designated the points upon which it relies for reversal as follows:

“The court erred in not striking the value testimony of one of the owners, Mr. Joe Maus.
‘ ‘ The verdict is not based upon substantial evidence and is excessive.
£ £ The trial court erred in allowing appellees to introduce testimony as to the substantial increase in population of Pope County to prove that the general county population increase would raise the land values in the vicinity of Atkins, Arkansas.”

When a part of an owner’s tract of land is taken by eminent domain in this state, the rule is well settled that his just compensation is measured by the difference in the value of the land, when put to its highest and best use, immediately prior to the taking and immediately after the taking. Ark. State Highway Comm. v. Fox, 230 Ark. 287, 322 S.W. 2d 81.

The appellee, Joe Maus, was 66 years of age and had lived all of his life on the property involved. He acquired the property by inheritance from his father who had likewise acquired it from appellee’s grandfather. Appellee had dairy farmed and truck farmed on the property for many years. He had planted and tended locust and pine trees on parts of the property and his overall testimony indicates a familiarity with the general land values in the area of the land taken by the appellant highway department. Certainly Mr. Maus was qualified to assert a land owner’s opinion as to the value of his land and his testimony on this point was admissible. In Ark. State Highway Comm. v. Fowler, 240 Ark. 595, 401 S.W. 2d 1, we quoted with approval from 20 Am. Jur., Evidence § 892, as follows:

“It is generally recognized that the opinion testimony of the owner of property, because of his relationship as owner, is competent and admissible on the question of the value of such property, regardless of his knowledge of property values. It is not necessary to show that he was acquainted with the market value of such property or that he is an expert on values. He is deemed qualified by reason of his relationship as owner to give estimates of the value of what he owns. The weight of such testimony is, of course, affected by his knowledge of the value.”

On direct, as well as on cross-examination, Mr. Maus testified as to different acreage values of various areas pointed out on a map or plat exhibit, and in totaling the values of the various plots his testimony indicates an error of $900.00 in his mental calculation of the value of the six acres remaining after the taking, and of $350.00 in his calculation of the value after the taking, but his testimony is clear that in his opinion the difference in the before and after value of his land amounted to $21,500.00. Even if a part of Maus’ testimony had been incompetent, if a part of it was competent, a motion to strike all of it would be properly denied. Arkansas State Highway Comm. v. Darling, 243 Ark. 386, 420 S.W. 2d 94; Ark. State Highway Comm. v. Carpenter, 237 Ark. 46, 371 S.W. 2d 535.

Maus was competent to testify as to his opinion on the value of his land and we hold that the motion to strike his testimony was properly denied by the trial court.

Appellant’s second point, as to whether there was substantial evidence to support the verdict of the jury, presents a question of law. Arkansas State Highway Comm. v. Byars, 221 Ark. 845, 256 S.W. 2d 738; Ark-State Highway Comm. v. Dupree, 228 Ark. 1032, 311 S.W. 2d 791. In determining the sufficiency of the evidence to support a jury verdict on appeal, we consider the evidence in the light most favorable to appellee. Mutual Benefit Health & Accident Association v. Basham, 191 Ark. 679, 87 S.W. 2d 583; Ark. State Highway Comm. v. Carder, 228 Ark. 8, 305 S.W. 2d 330.

The appellee, Joe Maus, testified that in his opinion the difference in the value of his land before and after the taking was $21,500.00. This testimony is based upon his familiarity with the land as owner and lifetime resident.

Mr. Jackson Ross, a real estate broker of considerable experience and knowledge in land appraisals and local market values, testified as an expert for appellee. He testified that the value of appellee’s land before the taking was $24,300.00 and that after the taking its value was $3,000.00, leaving a difference of $21,300.00 as just compensation for the land taken.

Mr. Watson and Mr. Jordon testified as expert appraisers for the appellant, and on a before and after appraisal came up with a difference of $6,150.00 and $5,-715.00 respectively.

We find no evidence that the jury was influenced or prejudiced by the admission of appellant’s expert witness on cross-examination, that Pope County is the fastest growing county in the state, and we find no merit to appellant’s third point.

The jury verdict was for $16,400.00 which was $4,-900.00 less than appellee’s lowest estimate and $10,250.00 more than appellant’s highest estimate. We conclude that there was substantial evidence to support the jury verdict and that the judgment of the trial court should be affirmed.

Affirmed.