author: Paul-Ward, Justice.

text:
    Brown Broadcast, Inc. v. Pepper Sound Studio, Inc. et al
    5-4214
    416 S. W. 2d 284
    Opinion delivered May 29, 1967
    [Rehearing denied July 26, 1967.]

      Bob Damson, for appellant;

      Gordon & Gordon and Clark, Clark & Clark, for appellees.
   Paul-Ward, Justice.

This appeal comes from litigation involving the. sale óf a radio, station (KVEE) located at (Conway. The principal issue concerns what, if any,'liabilities the purchaser assumed.

' The original owners' of the station prior .to 1964 were J. C. Willis, Hugh C. Jones, Harold J. Nichols, and" William E. Cooper (referred to as “Partners”). The purchaser was Brown Broadcast, Inc., appellant. The other party involved is Pepper Sound Studio; Inc., a corporation domiciled in Tennessee at Memphis, referred to as “Pepper”.

On April 13,1964 Partners and Pepper entered into a written contract designated as “Creative Sales Service Agreement”, referred to as “contract”. The contract obligated Pepper to lease to Partners certain “sound production and promotion materials” over a period of five years — to be used by Partners for one-minute-spot advertising purposes. For said service, the contract obligated Partners to pay Pepper $1,908 in equal monthly installments of $31.80.

On July 29, 1965 Partners sold the station to appellant, the sale being evidenced by a comprehensive written instrument.

A few months after the sale to appellant the monthly payments became delinquent and Pepper filed a complaint against appellant and Partners asking for specific performance of the contract against appellant or, in the alternative, for judgment against both defendants “for the sum of $31.80 per month for December, 1966 and each month thereafter in which plaintiff (Pepper) performs its contract to KVEE”. Partners answered, denying they owed appellant anything and stating they had transferred the lease agreement and all other property rights in the station to appellant who agreed to assume the contract. Replying, appellant denied any knowledge of the contract, and stated it assumed no obligations therein contained. There were other pleadings but it is not necessary to refer to them at this time.

Upon trial, the court found: (a) Partners are not released from the contract; (b) appellant and Partners owe Pepper $381.60, being the balance due for materials furnished to the station; (c) Pepper is entitled to specific performance of the contract, and; (d) appellant owes Partners for balance of purchase price of the station.

On appeal, appellant relies on four separate points or assignments of error for a reversal. They will he rephrased, and may he sufficiently examined, as follows:

One, Pepper is a foreign corporation, not authorized to do business in Arkansas, and therefore is not permitted to use the courts of this State to enforce a contract in this State. Two, there is no competent testimony to show appellant assumed the contract. Three, Partners did not come into equity with clean hands and, therefore, are not entitled to any relief.

One. It is admitted that Pepper has not complied with Ark. Stat. Ann. § 64-1201 (Repl. 1966) by filing a copy of its charter with the Secretary of State. Based on this fact appellant contends Pepper has no right, under the provisions of Ark. Stat. Ann. § 64-1202 (Repl. 1966), to maintain this action. We do not agree. If the contract here sued on was made in Tennessee it was not necessary for Pepper to comply with the section first mentioned. It was so held and fully explained in UPI v. Hernreich, d/b/a Station KZNG, 241 Ark. 36, 406 S. W. 2d 317. In Pepper’s complaint it is alleged that this contract was “accepted by plaintiff at his home in Memphis, Tennessee.” Appellant, in its answer, admitted the above allegation was true. The notes, themselves, show they were executed in Memphis. We find no evidence in the record to show the contract was executed in Arkansas. In UPI, supra, we approved this statement:

“‘It has been said that the Arkansas Statute cannot apply to prevent actions on contracts not made in Arkansas, even though interstate commerce be not involved.’ ”

Two. It is here insisted by appellant, in essence, that the weight of the testimony does not sustain the finding by the trial court that appellant assumed the terms and obligations of the contract made by Pepper and Partners. Again, we cannot agree.

In the first place the sales contract between appellant and Partners, in paragraphs 1 and 1 (c), provides that the “Buyer (appellant) shall acquire from Sellers ... all contracts, agreements, franchises, leases ... in effect currently on or on closing date, except as provided in paragraphs 11 and 12 hereof”. These two named paragraphs do not exclude the contract here in question. On the contrary, paragraph 11 recites that appellant shall assume all contracts and agreements “described in paragraph 1 (c) ”. We think it is made clear that appellant had knowledge of the contract.

We think the record fully supports a finding by the trial court that appellant knew of the contract and assumed the same. Mr. Hill testified that Robin Brown, president of appellant, told him the stations were using services provided under the contract after October 1, 1965. He also testified that, at the time of the trial, the “spots” were being run to the satisfaction of Pepper.

Three. The trial court, under proper pleadings, also gave Partners judgment against appellant for the balance due under the sale of the station. The only objection by appellant to the court’s action is that Partners did not come into a court of Equity with clean hands. The only basis for this objection are the matters previously discussed. Considering the conclusions already reached, we find nothing to justify us in holding Partners came into court without “clean hands”. Nor do we find anything in the record which reflects unfavorably on Partners.

Affirmed.


source: Caselaw Access Project

author: Paul Ward, Justice.

license: Public Domain

text:
    Ida Wilhite v. Elmer Wilhite et al
    5-4251
    415 S. W. 2d 44
    Opinion delivered May 29, 1967

      James F. Dcmgherty, for appellant.

      George P. Eldridge, for appellee.
   Paul Ward, Justice.

This litigation was instituted to determine if a widow has any rights, upon death of her husband, in a homestead consisting of eighty acres, which he had deeded away (without her knowledge) ten days before they were married.

The basic facts, about which there is no dispute, are as here set out. Fred Wilhite and his first wife (who died prior to 1944) had five children who are the ap-pellees on appeal, and will be referred to as such. On April 24, 1944 Fred executed a warranty deed to ap-pellees conveying the land in question, and had the deed recorded. On May 4, 1944 Fred was married to Ida who is the appellant herein. They lived on the land until his death, and then she remained there until the dwelling burned down. Neither appellant nor any of the appellees knew of the execution of the deed by Fred until shortly before this suit was filed on August 30, 1965.

On the above date appellees filed suit in chancery court against appellant asking for a declaratory judgment to declare “that the defendant, Ida Wilhite, has no interest in the property ...” After a trial the court granted the relief prayed, and this appeal follows.

On appeal appellant asks for a reversal on four separate grounds. We find no reversible error in the last three assignments, which are: (a) We hold there was a valid delivery of the deed to appellees in this instance under the case of McCord v. Robinson, 226 Ark. 350, 289 S. W. 2d 893. (b) Appellees are not estopped to assert their claim because of the long delay. Appellees filed their complaint herein promptly after learning of their rights under the deed, (c) The complaint described the lands as being in “Township Five (5) North” when it should have been in “Township Four (4) North” as appears in the deed. However, all the testimony clearly discloses this was merely a typographical error which can be corrected without prejudice to any one.

First Point. It is our conclusion that the case must be reversed because appellant was defrauded of her marital rights by the acts of her deceased husband. This Court has on several occasions considered matters of this nature. In the early case of West v. West, 120 Ark. 500 (p. 504), 179 S. W. 1017, it was said:

‘ ‘ The general rule is that if a man or woman convey away his or her property for the purpose of depriving the intended husband or wife of the legal rights and benefits arising from such marriage, equity will avoid such conveyance or compel the person taking it to hold the property in trust for or subject to the rights of the defrauded husband or wife.”

In Harrison v. Harrison, 198 Ark. 64 (p. 67), 127 S. W. 2d 270, there appears this statement:

‘ The law is well settled in this state that if, shortly before marriage, the future husband conveys away his real estate, without the knowledge of his betrothed, the courts will set aside such conveyance.” (citing cases)

The general rule, which appears to be in accord with onr own cases, is well stated in 26 Am. Jur. page 806; Husband and Wife; Sec. 185.

There can be no doubt that the rule announced should apply in this case. Not only did Mr. Wilhite fail to tell appellant he had deeded away the property ten days before they were married, but he apparently misled her into thinking otherwise before and after the marriage.

Appellant testified they were engaged on February 14, 1944; that Fred told her before they married he owned the property, and; that she worked and helped to pay off a mortgage on the land after they were married.

The cause of action is, therefore, reversed and remanded for further proceedings consistent with this opinion.


author: Lyle BrowN, Justice. Paul Ward, Justice, JohN A. FoglemaN, Justice,

text:
    St. Louis Southwestern Railway Co. v. Earl B CLEMONS, etc.
    5-4185
    415 S. W. 2d 332
    Opinion delivered May 29, 1967

      Coleman, Gantt, Ramsay & Cox, for appellant.'-

      Wynne & Wynne and. IF. C. Medley} for-appellee.
   Lyle BrowN, Justice.

This is an appeal by -Sh 'Loins Southwestern Railway Company from a jury verdict of $15,000 awarded Earl B. Clemons,' as' father and next friend of his fo-urteen-year-old son, Marion Lee Cleinónsi The hoy is alleged to have received serious injuries 'from being struck by a metal strip protruding from a' freight train. The railroad company contends the-boyiwas -a trespasser; that willful and wanton negligence; being the only predicate for liability, was not established as a mah ter of law; and that it was entitled to a. directed .verdict...

Marion Lee Clemons, sixteen-years old at'the time of trial, was the only eye witness presented-by .p'lninti'ff. His testimony as to the occurrence is- briefly- summarized. He was returning from hog hunting around-11 ;00 a.m. and was walking on the rails and ties. When- the train came into sight he stepped over to the. side- and kept walking. He happened to look up .and saw- what appeared to be a metal strip several feet in léngth'. Tt was like metal strippings used to tie down logs and -boxes on flat cars. The strip was flapping, would hit the side of the ear, bounce outward, and hit the side of the, car again. He ran to a ditch some, fourteen to eighteen feet from the track. The ditch was more than three feet below the level of the tracks. Notwithstanding this precaution the long, swinging strip struck hita.

Neither res ipsa loquitur, lookout, nor discovered peril is an issue here. Marion Lee. Clemons was a trespasser.. The liability of the railroad was submitted to the jury on the theory of willful and wanton disregard.

Our court is committed to the majority rule that willful and wanton misconduct is, as a matter of law, higher in degree than gross negligence. Froman v. J. R. Kelly Stave & Heading Co., 196 Ark. 808, 120 S. W. 2d 164 (1938). There it was said that “willful negligence involves the elemxit of conduct equivalent to a so-called constructive intent. ’ ’

When the evidence in a given case gives rise to an inference of willfulness or wantonness, then the latter becomes a jury question. But such an inference must be reasonably inferrible before the trial court is authorized to' submit the issue to the jury. See Steward, Administrator v. Thomas, 222 Ark. 849, 262 S. W. 2d 901. (1953).

: .,The most strained interpretation of the evidence in this case on negligence would not raise the degree of negligence to willful and wanton disregard. The strongest, inference that can be drawn is that the train had proceeded for an unknown distance with a long metal strip flapping from a freight car. The boy testified that since the accident he had seen similar loose strips. Ap-pellee argues that since the engineer, fireman, or conductor ,did not inspect the train at the last, terminal (Texarkana), the inference is left that a proper inspection was not made. The conductor testified on cross-ex.amination that the inspection of the train was the responsibility of the car inspectors. Appellee’s attorney inquired if the conductor knew whether that inspection was made and the answer was a categorical “Yes.” The train made no stops between Texarkana and the place of the mishap near Thornton.

In a situation where neither res ipsa loquitur, failure to keep a lookout, nor discovered peril is relied upon, we must have some evidence that the railroad’s employees knew, or shoxdd have known, of a condition that would naturally or probably result in injury to a trespasser but proceeded in utter disregard of the danger. No such evidence is in the record. If a long metal strip were flapping from the train, we are left to speculate whether the break occurred fifty feet, or fifty miles, prior to striking the boy. As to the knowledge of the train crew, that time element would be most significant. It is a matter of common knowledge that within the right-of-way are located such objects as maintenance sheds, switch stands, signposts, whistle boards, signal light poles, and other structures upon which a long, flapping metal strip would most likely leave its mark. Yet we are not afforded any evidence in that respect.

The facts in Kuchin v. Chicago & N. W. R. Co., 210 F. 2d 863 (1954), are analogous to the events in this case. Kuchin was walking along a cinder footpath used for a number of years by the general public. (Kuchin only had to establish culpable negligence in order to recover.) As the train approached Kuchin from the rear, he stepped a few feet out of the path and away from the train. He kept walking. He was struck in the back by an object protruding from the train. As the train, moving slowly, proceeded on, Kuchin saw a rod “sticking out” from one of the cars. In reversing a jury verdict the court said:

“The plaintiff makes the further contention that the projecting bleeder rod was plainly visible, and that, therefore, it should have been observed by members of the defendant’s crew. The plaintiff said he first saw the rod ‘sticking out’ when the car from which it was projecting was six or seven car lengths south of the place where he was struck; that he ‘saw it as soon as he got hit.’ However, there is no indication as to how long the offending rod had been in that position. Neither is there any showing that members of the crew were so situated that they should have seen it irrespective of how long the condition had existed. No one would seriously contend that they were under an absolute duty to observe instantly every irregularity in the equipment regardless of its nature. To say that the train men should have seen the projecting rod and have avoided the accident, for no other reason than that the plaintiff saw it afterwards, is not a sufficient basis to support a reasonable inference of negligence.”

Certiorari was denied. Kuchin v. Chicago n N. W. R. Co., 348 U. S. 840 (1954). We cite the Kuchin ease only to show that in a very similar fact situation, an appellate court held the facts insufficient to establish a lesser degree of negligence than willful and wanton disregard.

Appellee argues that a jury question was made as to “some degree of negligence.” This statement is based on the assertion that the railroad “failed to inspect its equipment and its cars and had a metal strip protruding 16 feet from a car while the train was traveling 63 miles per hour.” (The only concrete testimony regarding inspection was that elicited from the conductor by counsel for appellee. He testified that to his knowledge the car inspectors at Texarkana inspected the train.)

Starting with the assumption that some, degree of negligence was established, appellee reasons that the exact degree is solely a matter for the jury. He relies strongly on the case of Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226 (1959). In this connection Harhrider holds that the distinction between gross negligence and willful and wanton misconduct is very narrow; because of the fine line of distinction, many cases arise where, under the facts in those cases, “the question is one for the jury -whether the negligence had become willful and wanton.” Mr. Harkrider “deliberately and intentionally drove on the wrong side of the road at a speed of 66 feet per second under conditions which made it impossible for him to see more than 100' feet in front of him.” As a result, Harkrider’s guest was injured. Hark-rider is not authority for appellee’s contention that if some degree of negligence is shown the jury is permitted to raise it to willful and wanton disregard.

Appellee cites two cases in which this court approved verdicts for the plaintiffs being struck by objects falling or protruding from a train: St. Louis & S. F. Rd. Co. v. Carr, 94 Ark. 246, 126 S. W. 850 (1910), where a door or other object protruding fromt a train struck plaintiff; St. Louis I. M. & S. Ry. v. Neely, 63 Ark. 636, 40 S. W. 130 (1897), where a door fell from a freight train and injured plaintiff. Carr and Neely were not trespassers. Willful and wanton disregard was not an issue.

We' come now to the question of whether this case should be dismissed or remanded. This court has long adhered to the rule so well reiterated in Fidelity Mutual Life Insurance Co. v. Beck, 84 Ark. 57, 104 S. W. 533 and 1102 (1907). The general rule is to remand common law cases for new trial. Only exceptional reasons justify a dismissal. One of the exceptions is an affirmative showing that there can be no recovery. Pennington v. Underwood, 56 Ark. 53, 19 S. W. 108 (1892). There it was said that when a trial record discloses “a simple failure of proof, justice would demand that we remand the cause and allow plaintiff an opportunity to supply the defect.” To the same effect, see Hinton v. Bryant, 232 Ark. 688, 339 S. W. 2d 621 (1960).

The reversal at hand is based on failure of proof. It is not impossible that the defects in proof could be supplied on retrial. Our comment on the evidence surrounding the breaking of the strap and the lack of proof by appellee regarding inspection of the train justifies tb at statement. In view of possible retrial we do not, in all fairness, point out other avenues which might he worthy of development.

Appellant contends the court erred in giving two instructions on negligence. Instruction No. 7 defined negligence (AMI 301). Instruction No. 8 explained the terms “ordinary care” and “negligence” with respect to a minor (patterned after AMI 304). It was redundant to give both. Ordinary negligence was charged only against the boy and No. 8 would have sufficed. The railroad was charged with willful and wanton disregard and that was covered in another instruction.

Eeversed and remanded.

Ward and Byrd, JJ., dissent.

FoglemaN, J., would reverse and dismiss.

Paul Ward, Justice,

dissenting. For reasons set out below, I do not agree with the majority opinion.

(a) Marion Lee Clemons testified he was injured by a long metal strip attached to appellant’s car. There is no direct testimony to the contrary.

(b) The undisputed testimony is that such strips are used in the regular.course of appellant’s business, and that they sometimes hang loose.

(c) There is no direct testimony that this particular car was inspected on this occasion and found in a safe condition.

(d) It cannot with reason be argued that such loose hanging strips would not constitute a serious hazard to a person on the right-of-way.

(e) It is not contended that this hazard was the result of the condition of appellant’s premises, i. e. the right-of-way.

(f) It is only reasonable to- assume that people do frequently walk on a railroad right-of-way, and that appellant is aware' of this fact.

In view ■ of the above factual situation, which is a matter for the jury only to consider, it is my conclusion that the case should be affirmed if the jury was justified in finding appellant was guilty of ordinary (not wanton and willful) negligence. This is in accord with our recent holding in the case of George Lee Tatum v. Rester, 241 Ark. 1059, 412 S. W. 2d 293.

Bykd, J., joins in this dissent.

JohN A. FoglemaN, Justice,

dissenting.. I dissent only as to the remand of this case.

I agree with the academic statements of the majority with reference to remand of a law case-for a new ■trial. The great' difficulty is that none of them are applicable here. The statement from Pennington v. Underwood, 56 Ark. 53, 19 S. W. 108, is dictum. The court entered judgment for the defendant here instead of remanding.

I have found two cases where this court, under what were declared to be unusual circumstances, remanded a case for a new trial upon a reversal for failure of the trial court to direct a verdict. Reynolds Metals Company v. Ball, 217 Ark. 579, 232 S. W. 2d 441; Hayes Brothers Flooring Co. v. Carter, Adm’x, 240 Ark. 522, 401 S. W. 2d 6. On the other hand, there are numerous cases which were dismissed upon such a holding here. Some of them are: Arkansas Cotton Oil Co. v. Carr, 89 Ark. 50, 115 S. W. 925; Arkansas Natural Gas Co. v. Gallagher, 111 Ark. 247, 163 S. W. 791; American National Ins. Co. v. Hamilton, 192 Ark. 765, 94 S. W. 2d 710; Temple Cotton Oil Co. v. Brown, 198 Ark. 1076, 132 S. W. 2d 791; Southwestern Bell Tel. Co. v. Casson, 199 Ark. 1140, 138 S. W. 2d 406; Kroger Grocery & Baking Co. v. Kennedy, 199 Ark. 914, 136 S. W. 2d 470; Missouri Pac. R. Co. v. Moore, 199. Ark. 1035, 138 S. W. 2d 384; Pacific National Fire Ins. Co. v. Suit, 201 Ark. 767, 147 S. W. 2d 346; Tucker Duck & Rubber Co. v. Harvey, 202 Ark. 1033, 154 S. W. 2d 828; Twin City Pipe Line Co. v. Butler, 203 Ark. 240, 156 S. W. 2d 222; Brotherhood of Railroad Trainmen v. Drake, 204 Ark. 964, 165 S. W. 2d 947; Woodard v. Holliday, 235 Ark. 744, 361 S. W. 2d 744; Twin City Amusement Co., Inc. v. Salater, 237 Ark. 206, 372 S. W. 2d 224.

It is true that in each one of the latter cases the court made the usual comment about the case having been fully developed, hut I think the statement would be just as appropriate here. Be that as it may, I feel that this is an action which brings about an unfair situation. If the trial judge had directed a verdict, as we say he should, we would have affirmed and there would have been no chance for appellee to have a. second attempt at his proof. Thus we have put a premium for plaintiffs on the erroneous failure of a trial judge to direct a verdict. This produces, in my opinion, a wholly undesirable and indefensible result and one that will haunt trial judges and this court from henceforth.


author: Lyle BkowN, Justice.

text:
    B. Bryan Larey, Comm. of Revenues v. Jack M. Wolfe, d/b/a Wolfe Drilling Company
    5-4218
    416 S. W. 2d 226
    Opinion delivered May 29, 1967
    [Rehearing denied July 26, 1©67.]

      Lyle Williams and Tom Tanner and Hugh Brown, for appellant.

      Lester & Shults, for appellee.
   Lyle BkowN, Justice.

Appellee, Jack M. Wolfe1, d/b/a Wolfe Drilling Company, is an oil and gas drilling contractor headquartered in Oklahoma. Two units, or rigs, of his drilling equipment were operating in Arkansas in 1965, and appellant, Arkansas Commissioner of Revenues, assessed a compensating (use) tax against the units. Wolfe paid the assessments under protest. After exhausting Ms administrative remedy, Wolfe successfully prosecuted this action to recover the assessments. The commissioner appeals.

Act 487, Acts of 1949, is the basic compensating tax act. The pertinent section is Ark. Stat. Ann. § 84-3106 (d) (Supp. 1965). As amended through 1961, the Act provided for certain exemptions from the use tax. These included manufacturing and processing machinery, replacement parts, and material and supplies used directly in the mining and production of natural resources, provided they were (1) not available from Arkansas manufacturers and (2) not available from instate sellers’ stock in trade. On all of those prerequisites for tax exemptions the trial court found Wolfe met the requirements. In that connection the chancellor made specific findings, which we shall discuss under two numbered topics.

1. The drilling rigs were used directly in the mining, processing, cmd production of natural resources. Appellant contends that a drilling contractor is not engaged in the mining of a natural resource. It may well be argued that the production of oil and gas does not come within the technical definition of “mining.” On the other hand, those operations have several times been classed as mining. Shell Petroleum Corp. v. Caudle, 63 F. 2d 296 (5th Cir.1933); Rice Oil Co. v. Toole County, 86 Mont. 427, 284 P. 145 (1930); In re Great Western Petroleum Corp., 16 F. Supp. 247 (D. C. Cal. 1936); Standard Pipe & Supply Co. v. Red Rock Co., 57 Cal. App. 2d 897, 135 P. 2d 659 (1943). But in enacting Section 6 (d) (exemptions), the legislature did not restrict the statute to technical definitions. To the contrary, the statute says the words “mining, quarrying, refining, and the production of natural resources ’ ’ shall be interpreted as commonly understood within their ordinary meaning. Appellee Wolfe is a practicing geologist of twenty-six years experience in nine states. In the area where he operates, including Arkansas, he testified the drilling for oil and gas is considered as mining for natural resources. His testimony was not controverted.

2. The property against which the tax was assessed is not available from manufacturers in Arkansas, nor is it available from instate sellers’ stock in trade. Appel-lee’s testimony supported these findings. The commissioner did not controvert it.

Thus far we have not here discussed Act 125 of 1965, Ark. Stat. Ann. § § 84-3129—84-3134 (Supp-1965). The important question is whether that act eliminates the exemption to which Wolfe would otherwise he entitled. Act 125 provides, among other things, that all tangible personal property (including contractor’s equipment such as Wolfe’s) procured from without the state for use, storage or consumption in this state, shall be subject to the compensating tax act. Act 125 has no repealing clause. No exemptions are recited. The act provides it shall he cumulative to the provisions of Act 487 of 1949 as amended (Compensating Tax Act).

There are three cogent reasons why we do not think Act 125 repealed the exemption available to Wolfe under the provisions of the compensating tax act.

1. The legislature specifically provided that Act 125 would be cumulative. Black’s Law Dictionary, 4th Ed., defines “cumulative” as “Additional; heaping up; increasing; forming an aggregate.. The word signifies that two things are to he added together, instead of one being a repetition or in substitution of the other.” In Merchants’ Coal Co. v. Fairmont Coal Co., 160 F. 769 (4th Cir.1908), we find this statement:

£ ‘ ‘ Where one thing is cumulative on another, whether it be remedy, penalty, or power, we are speaking commonly of two things which are at least consistent, and might, without incongruity, be applied at the same time.’ ”

In State v. Laredo Ice Co., 96 Tex. 461, 73 S. W. 951 (1903), it was stated that an act reciting that it would be cumulative indicates a harmonious coexistence and cooperation.

We conclude that the legislative intent was to harmonize Act 125 with the existing compensating tax law. Had the intent been to repeal any provision of the law then existing, the legislature was free to so recite in Act 125.

2. The stated purpose for the enactment of Act 125 was to make it clear that contractors are consumers. ’ ’ In the last section we find this statement:

“Whereas, contractors are deemed to he consumer under the provisions of Act 487 of 1949 (as amended) but some confusion as to this interpretation has existed, causing a hindrance to the proper administration of the Compensating Tax Law of this State ... an emergency is hereby declared to exist . . .”

An omitted portion of the emergency clause above refers to the fact that additional funds are needed to meet the operation of state government. We assume this statement to mean that the clarification will aid in the collection of taxes already levied under Act 487.

3. The property sought to be taxed was not purchased for use in this state. The major component parts of the two drilling rigs were acquired some fifteen and six years ago respectively, and in Oklahoma, where they were first used. Sales tax was paid in Oklahoma. Wolfe purchased the equipment generally for use in any state where he might thereafter gain a contract. On the other hand, he did not acquire the rigs for the specific purpose of using them in Arkansas. He had no contract in Arkansas at the time of purchase, nor was he then negotiating a contract here.

An identical situation arose in New Mexico in 1955. That state has a use tax provision like ours as respects “procurement for storage, use or consumption.” There the contractor was held not to be liable for the tax. Rowan Drilling Co., Inc. v. Bureau of Revenue, 60 N. M. 123, 288 P. 2d 671 (1955). Similar provisions are contained in the statutes of Iowa and Maryland. Their statutes have been similarly interpreted. Morrison-Knudsen Co. Inc. v. State Tax Comm., 242 Ia. 33, 44 N. W. 2d 449 (1950); Comptroller of the Treasury v. James Julian, Inc. et al, 215 Md. 406, 137 A. 2d 674 (1958). All these cases hold that whether the property is purchased for use in the taxing state “should be determinable at or near the time of its purchase.”

We hold that the exemptions afforded appellant by Act 487 of 1949, Section 6, were not repealed by Act 125 of 1965.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Old Amercian Life Ins. Co. v. Lucy Harvey, an incompetent, by Herbert H. Harvey, etc.
    5-4246
    415 S. W. 2d 66
    Opinion delivered May 29, 1967

      R. D. Rouse, for appellant.

      Tomphins, McKenzie, McRae & Harrell, for appellee.
   John A. Fogleman, Justice.

The only real issue here is the entitlement of appellee to recover penalty and attorney’s fees from appellant.

Appellee brought suits against appellant on two insurance policies covering hospital, medical and other benefits. The two suits were consolidated for trial before the court, a jury trial having been waived. The policies were originally issued by other companies but appellant had assumed all obligation on both policies before any liability accrued on either. Appellee suffered injuries in a fall on July 2, 1965. On December 16, 1965 she underwent an appendectomy. She was in the hospital sixty days because of the injuries and ten days because of the surgery. Demand was made for $1,161.00 under one policy and $1,189.54 under the other. Appellant denied liability for these amounts before suit. The complaints sought recovery of $854.00 because of the injuries and $310.00 because of the appendectomy in the first action, and $826.23 because of the injuries and $363.31 because of the surgery in the second. The basis for recovery was set out in detail in the body of the complaints but the prayers were for the sums of $1,164.00 and $1,189.54, respectively, with penalty and attorney’s fees.

In its answer to the first complaint appellant admitted liability in the sum of $525.00 and in the answer to the second, admitted liability in the total sum of $538.31. Appellant offered to confess judgment for these amounts. In amendments to its answers appellant denied that the appellee was in the hospital 61 days as a result of her injuries as alleged in the complaints and denied that the hospital was licensed as a hospital or had' a graduate registered nurse on duty as required by the policy.

At the opening of the trial the attorney for appellant admitted liability for $310.00 for the appendectomy on the first policy, but denied liability for 61 days hospitalization and for penalty and attorney’s fees and said that the amended answers showed what they admitted.

Appellee offered Dr. Charles D. Avery as a witness. He testified that the Cora Donnell Hospital, at which he practiced, was a licensed hospital at the time in question and that a registered nurse was in charge of the hospital, lived next door thereto and was on call at all times. "While the doctor was on the witness stand, it was discovered that there was an error in the hospital bill in that the charge for August 26th was duplicated, an error that is apparent upon inspection of the statement. After a recess for examination of the statement, appel-lee’s attorney asked permission to amend the first complaint to ask $842.00 instead of $854.00 for the hospitalization for the injuries, the daily hospital charge being $12.00. He admitted that the hospitalization was for 60 days instead of 61. Appellant’s attorney did not object, but reserved appellant’s rights as to attorney’s fees and penalty. Appellee’s attorney stated that he did not ask to amend the other complaint, but admitted that appel-lee only claimed 60 days of hospitalization. At this point, after the doctor had left the witness stand, appellant, for the first time, objected to his testimony as to the qualification of the hospital under the policy.

In appellee’s complaint on the second policy recovery had been sought for hospitalization for her injuries on the basis of 10 days at $15.00 per day; 21 days at $12.00 per day; and 30 days at $6.00 per day. The policy actually provided as hospital benefits for the first 30 days the expenses actually incurred, not to exceed $15.00 per day for. the first 10 days and $12.00 per day thereafter. After the first 30 days, hospital benefits were 50% of the expense actually incurred, not to exceed a total of $12.00 per day. The hospital expenses incurred were more than $15.00 per day for the first 10 days and more than $12.00 per day for the next 20 days. For the last 30 days the hospital expenses were $526.25, and the expenses exceeded $12.00 on two days by a total of $5.40. Thus, under a correct application of 'the policy terms, appellee would have been entitled to recover $1,249.62 rather than $1,189.54 for which judgment was prayed. Appellant offered no evidence.

In his opinion, the trial judge stated that if appellant had confessed judgment upon amendment to the first complaint, appellee would not have been entitled to recover penalty and attorney’s fees, but not having done so and never having admitted liability except as set out in its answer, appellee was given judgment for the full amount prayed pursuant to amendment in open court, 12% penalty and attorney’s fee of $350.00. In the second suit, the court gave judgment for the full amount sued for, saying that under the terms of the policy ap-pellee would have been entitled to more, and that appellant would have paid less than the policy called for if it had confessed judgment for the amount sued for. In this the court apparently felt that even if the evidence showed that recovery of a larger amount was justified, appellee was limited to the amount sought by the complaint. Hudspeth & Sutton v. Gray, Durrive & Co. 5 Ark. 157; White v. Cannada, 25 Ark. 41; Arkansas Power & Light Co. v. Murry, 231 Ark. 559, 331 S. W. 2d 98. The court gave judgment for 12 %• penalty and $150.00 for attorney’s fee.

In the first case appellant contends that appellee was not entitled to recover penalty or attorney’s fees because appellant did not continue to deny liability after the amendment reducing the claimed number of days of hospitalization was made. We cannot agree that appellant was relieved of liability for these items. Never was there any offer to confess judgment, withdrawal of answer or other manifestation on the part of appellant that it agreed that appellee was entitled to recover the reduced amount.

This court has long been committed to the rule that, in the absence of an offer by an insurance company to confess judgment for the amount to which the recovery-sought is reduced by amendment to the complaint allowed by the court during trial, claimant is entitled to recover statutory penalty and attorney’s fees. In Queen of Arkansas Ins. Co. v. Milham, 102 Ark. 675, 145 S. W. 540, the insurance company asserted as a set-off an amount due it upon a premium note. The plaintiff promptly conceded that this amount should be deducted and only asked judgment for the difference. The court then said that if the insurance company wished to avoid the statutory penalty and attorney’s fee it should have offered to confess judgment and thus ended the suit. This rule has been applied and followed in many cases. Among them are: Life and Casualty Co. v. Sanders, 173 Ark. 362, 292 S. W. 657; Progressive Life Ins. Co. v. Hulbert, 196 Ark. 352, 357, 118 S. W. 2d 268; Old American Life Ins. Co. v. McKenzie, 240 Ark. 984, 403 S. W. 2d 94.

But appellant says that it did not continue to deny liability in the first case after the amendment, pointing out that it did not offer any proof on the defenses set out in its answer, having rested its case immediately after appellee rested. The amount for which appellant offered to confess judgment i«n its original answer was not identified as to which hospitalization or on which items the company admitted liability. In the amendment appellant denied all material allegations not admitted in the answer or the amendment, but admitted liability for certain items incurred because of appellee’s injury. It denied that appellee was entitled to> recover $732.00 for 61 days in the hospital. The prayer of the original answer was that the offer to confess judgment for $525.00 be accepted, that appellee take nothing in excess of that amount and that her complaint be dismissed. The prayer of the amendment simply denied liability “as hereinabove set forth.” The record reveals that the court heard argument of counsel for both parties but does not reveal the content of either argument. Immediately after this argument the trial judge announced his findings as to the qualification of the hospital under the terms of the policy and asked for briefs.

Appellant takes the position that the finding as to the hospital by the triál judge was unwarranted because not properly in issue. This is based on the claim that the defense was an affirmative one placing the burden on it, as asserting an exception from the coverage of the policy, so that no issue remained to he determined by the trial court, thus relieving appellant from liability for attorney’s fees. We do not agree that this was an exception from the policy. The clause in question, so far as pertinent, provided:

“If such injury or such sickness requires any Insured herein to he confined as a bed patient within a regularly incorporated or licensed hospital (except a home or institution providing primarily convalescent, nursing, ambulatory or rest-care facility, or a special unit of a hospital used primarily for the care of convalescent or ambulatory patients or charitable institutions or hospitals which are agencies of any Government) which has Graduate Registered Nurses (R. N.) always on duty * * * while this policy is in force, the 'Company will pay, as a result of any one disability, the Insured (or the Hospital, if so authorized) for the following items of hospital expense actually incurred, but not to exceed the amounts stated below.”

There was never any indication that appellant agreed that the evidence on behalf of appellee was conclusive or that any of its defenses were abandoned. Certainly there was never at any time an offer to confess judgment for more than $525.00, plus amounts totalling $122.00.for which it admitted liability. Nothing short of an admitted liability or offer to confess judgment for the amount to which appellee was entitled to recover would have relieved appellant of liability for attorney’s fees and penalty. The mere failure to offer evidence is not equivalent to an admission of liability or an offer to confess judgment.

The other case presents a slightly different situation, Aopellee had. misconstrued the clause on benefits under the policy after the first 30 days of hospitalization. In presenting her evidence, the discrepancy as to the number of days of hospitalization was admitted, but her attorney did not seek to amend the complaint under which recovery-of $1,189.54 was sought, although it certainly must have been obvious to appellant that under a correct construction of the policy, appellee would be entitled to recover a larger amount. Here again, appél-lant never made any admission of liability except for $538.31 in the original answer and the additional sum of $244.23 in the amendment to the answer. Appellee admitted that she was entitled to recover only for sixty days hospitalization. Surely appellant was aware of the amount that would be due appellee for this period of hospitalization under its policy and that, if the hospital bills were correct, appellee would be entitled to one-half of the total expense, but not to exceed $12.00 for each day over thirty days, rather than $6.00 per day as stated in the complaint. At least as long as the amount of recovery sought by appellee did not exceed the amount set out in the prayer of her complaint, appellant could have avoided liability for penalty and attorney’s fees only by admitting liability for that amount or offering to confess judgment for that sum, which it did not do. The policy sued on was exhibited with the complaint and introduced in evidence. Both the hospital bill and the policy were introduced without objection. Appellant did not claim to be misled by the proof offered. In this situation certain statutes are pertinent:

“27-1155. Variance between pleading and proof — • Amendment of pleading*. — No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be shown to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to he amended upon such terms as may be just. [Civil 'Code § 150;].”
“27-1156-. Immaterial variance — Amendment without costs. — Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, and may order an immediate amendment without costs. [Civil Code, § 151;].”
“27-1160. Amendment of pleadings or proceedings by court — Enlargement of time for filing answer and reply — Pleadings made definite and certain— Errors or defects in proceedings disregarded. — The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. * * * [Civil Code, § 155;].”

Appellant did not contend that he was misled by' the variance and did not claim surprise or ask for a continuance. No objection having been made to the evidence, under our Code the complaint must be treated as amended to conform to it. Healy v. Conner, 40 Ark. 352; Farmers Union Mut. Ins. Co. v. Wyman, 221 Ark. 1, 251 S. W. 2d 819.

Appellant complains, however, that there was no amendment until some weeks later, after appellee’s brief was filed. As we interpret the statute it was the duty of the court to consider the complaint amended at the time evidence was offered, in the absence of a showing by appellant that it was misled to its prejudice. On this contention, however, there would have been no error for it Las been held that amendment of pleadings to conform to the proof nnder the statutes quoted may even be permitted after a case has been argued to a jury. Burke v. Snell, 42 Ark. 57.

Appellant also complains that the fee allowed in the first case is excessive. The court heard testimony by appellee’s attorney. In the two cases, uncontradicted testimony showed that he had spent something over 23 hours in research, accumulating six pages of notes; filed a proof of claim under one of the policies; engaged in correspondence with the companies; had two conferences with appellee’s physician; prepared the complaints; had at least two telephone conversations with one of appellant ’s attorneys; made a 50-mile round-trip to confer with relatives of the aged appellee; had four conferences with the son of appellee who served as next friend in bringing the suit; had two conversations with a brother of appellee and a conference with a Mr. Bright. He must also have written a brief for the court pursuant to the trial judge’s request. In view of the amount of time devoted to this case and the fact that the trial judge was cognizant of the services rendered, we cannot say that the allowance was excessive.

The judgment is affirmed and we allow an additional fee of $250.00 on this appeal.

Brown, J., disqualified and not participating.


author: J. Fred Jones, Justice.

text:
    Sam Mack Snider Jr. v. State
    5257
    415 S. W. 2d 53
    Opinion delivered May 29, 1967

      McKnight & Blackburn, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. General, for appellee.
   J. Fred Jones, Justice.

Appellant Sam Mack Snider, Jr. was charged on information filed by the prosecuting attorney in Cross County with the crimes of forgery and uttering. He was tried before a jury in Circuit Court, convicted on both counts and sentenced to four years in the penitentiary on each count.

On appeal to this court appellant relies on the following two points for reversal:

“1. The lower court erred in refusing to direct a verdict at the close of the case in favor of Appellant on the grounds that there is a fatal variation between the Information and the proof in that the Information charged the Defendant with forging and uttering a check made payable to the order óf ‘F and J Hardware, Parkin, Arkansas/'and the only check introduced into evidence alleged to be forged by the Defendant was made payable to the order of ‘Mrs. Balph Johnson.’
“2. The lower court erred in refusing to grant Appellant’s motion for a directed verdict at the close of the case in that the evidence to convict the Defendant was inadequate. The only evidence linking the Defendant with the crime of forgery and uttering was the testimony of Geneva Dulaney, an accomplice.”

The facts are briefly as follows: The appellant met Geneva Dulaney on a Street corner in Louisville, Kentucky. They drank some beer together and then traveled to Memphis, Tennessee, in an automobile driven by appellant, to visit appellant’s daughter. They then drove to Parkin in Gross County and had been in Parkin two days, staying in the home of one Elizabeth Smith, when appellant was arrested.

While sitting in an automobile in Parkin, appellant wrote a check on the Cross County Bank made payable to the order of Mrs. Ralph Johnson for $20.00, and signed the check “Ralph Johnson.” He gave the check to Mrs. Dunlaney and she attempted to cash it at a grocery store, where the blank check form had been obtained a few minutes earlier by one of Mrs. Smith’s children. Being unable to cash the check at the grocery store, Dulaney returned to the automobile and so advised the appellant. He directed her to try cashing the check some other place, and told her that the check was good. Dulaney then proceeded directly to the P & J Hardware store in Parkin where she purchased a lawn sprinkler and some hedge shears. She paid for these items with the check and received approximately $14.00 in change. Mrs. Dulaney gave the change to the appellant who purchased some whiskey with part of the money on their return from the hardware store to Mrs. Smith’s house. Ralph Johnson had no account in the Cross County Bank, neither did the appellant have an account in the bank. The appellant, as well as Mrs. Dulaney, was arrested at a filling station in Wynn.

Both the appellant and Geneva Dulaney were charged by information with the crimes of forgery and uttering. Dulaney entered a plea of guilty to uttering and was given a five year suspended sentence. She testified as a witness for the State in appellant’s trial.

The appellant had been sentenced to the penitentiary on two previous occasions for forgery and uttering in Cross County and was identified at the trial by the Sheriff of Cross County who had known him as “John Mack Snider” since 1947.

The information upon which the appellant was charged alleged the crime of forgery and uttering committed as follows:

“The said defendant on or about the 20th day of July, 1966, Cross County, Arkansas, did unlawfully, fraudulently and feloniously forge and counterfeit a certain writing on paper purporting to be a check on Cross County Bank, which said writing on paper was and is in words and figures as follows, to wit:
“Pay to the order of P & J Hardware, Parkin Arkansas of date July 20, 1966, in the sum of $20.00 and signed Ralph Johnson
with the unlawful, fraudulent and felonious intent then and there to obtain possession of the money and property of the said P & J Hardware, Parkin, Arkansas, and after forging said check did utter and publish as true to P & J Hardware, Parkin, Arkansas a certain forged and counterfeited writing on paper purporting to be a check on the Cross County Bank, as above; the said Sam Mack Snider, Jr. and Geneva Dulaney well knowing at the time they uttered said writing on paper as aforesaid that it was forged, counterfeited and not genuine.”

At the close of the evidence offered by the State, the appellant’s attorney moved for an instructed verdict as follows:

“MR. .SHAVER: Like to move for an instructed •verdict on the basis the State failed to make a case on the basis of forgery, which they have him charged with. • ' ‘
THE COURT: Motion denied.
MR. SHAVER: Exception. ”

A motion for a new trial was filed by appellant as follows:

‘ ‘ Comes the defendant, by his attorneys, Shaver & Shaver, and files his motion for a new trial stating:
“That the' verdict of Guilty returned by the jury should be set aside and the Defendant granted a new trial for the following reasons: -
1. That the verdict is contrary to the law and evidence;
2. That there is no evidence to support the verdict ; and
3. That the Court erred in over-ruling the defendant’s motion to instruct a verdict for the Defendant because there vas no legal evidence or inferences to be drawn from said evidence that the defendant was. guilty of forgery or .uttering a check on July 20th, 1966 as alleged by the State.
“WHEREFORE, Defendant prays that said verdict be set aside and that he be granted, a new trial.”

In support' of his first point, appellant argues that the lower court erred in refusing to direct a verdict in favor of appellant at the close of the State’s case, on the grounds that there is a fatal variation between the information and the proof in that the information charged the appellant with forging and uttering a check made payable to order of F & J Hardware, Parkin, Arkansas, and the only check introduced into evidence, and which was alleged to he forged by the appellant, was made payable to the order of Mrs. Ralph Johnson. Appellant cites Houston v. State, 66 Ark. 120, 49 S. W. 351, and Wilburn v. State, 60 Ark. 141, 29 S. W. 149, in support of this contention, but these cases were decided prior to the adoption of initiated Act No. 3 in 1936.

Prior to the adoption of initiated Act No. 3, the language of an indictment required,

“A statement of the Acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. ’ ’ 3328 C & M Digest.

Since the adoption of initiated Act No. 3, and because thereof, the contents of an indictment as set out in Ark. Stat. Ann. § 43-1006 (Repl. 1964) are now as follows:

‘ ‘ The language of the indictment must be certain as to the title of. the prosecution, the name of the court in which the indictment is presented, and the name of the parties. It shall not be necessary to include statement of the act or acts constituting the offense, unless the offense cay/not be charged without doing so. Nor shall it be necessary to allege that the act or acts constituting the offense were done wilfully, unlawfully, feloniously, maliciously, deliberately or with premeditation, but the name of the offense charged in the indictment shall carry with it. all such allegations. The State, upon request of the defendant, shall file a bill of particulars, setting out the act or acts upon which it relies for conviction.” (Emphasis supplied).

Appellant in the case at bar did not request a bill of particulars and although the information charged for-gry of a check made payable “to the order of P & J Hardware,” and proved the forgery of -a check made payable to “Mrs. Ralph Johnson,” the appellant made no objection to the introduction of this check into evidence in proof of the crime of forgery and uttering with which he was charged.

We are of the opinion that the appellant knew what check he was charged with forging and knew that it was the check offered in evidence. We conclude, therefore, that the trial court did not err in refusing to direct a verdict for the appellant at the close of the evidence produced by the State.

As to appellant’s second point, no objection was offered to the testimony of Geneva Dulaney except one objection as to the hearsay nature of evidence offered as to what the witness, Mrs. Dulaney, had told appellant about her husband. Appellant requested no instructions on testimony of an accomplice, and no objection on this point was brought forward in appellant’s motion for a new trial or in a bill of exceptions. The point is raised for the first time in appellant’s brief in this court on appeal, but we might add, however, that we consider the testimony of Geneva Dulaney sufficiently corroborated by the other evidence offered by the State to support the conviction in this case. Beasley v. State, 219 Ark. 542, 242 S. W. 2d 961; Burford v. State, 242 Ark. 377.

Finding no errors, the judgment of the trial court is hereby affirmed.

Affirmed.

FoglemaN, J., disqualified and not participating.


author: J. Fred JoNes, Justice.

text:
    James M. Cairns, et ux, v. Jack P. Witt, et ux
    5-4247
    415 S. W. 2d 47
    Opinion delivered May 29, 1967

      Frank H. Cox, for appellant.

      U. A. Gentry, for appellee.
   J. Fred JoNes, Justice.

This appeal is from a decree of the Pulaski County Chancery Court sustaining a demurrer to a complaint and dismissing the complaint.

On September 8, 1965, James M. Cairns and wife as plaintiffs, filed a complaint in the Chancery Court alleging that they are the owners of Lot 8, Block 16, Midland Hills Addition to the City of Little Rock, and that the defendants, Jack P. Witt and wife, are the owners of Lots 13 and 14, Alpine Court Addition; that the recorded plats of the two subdivisions show a 16 foot alley between the plaintiffs’ Lot 8, Block 16 in Midland Hills Addition and the defendants’ Lot 13 in Alpine Court Addition; that the defendants are claiming ownership of the alley and have made permanent improvements therein which interferes with plaintiffs’ use of their property; that plaintiffs are entitled to a judgment declaring the 16 foot strip of land between their property and the defendants’ property to be a public alley and for a decree requiring the defendants to remove all structures therein.

The complaint prayed for a declaratory judgment setting forth the status of the 16 foot strip of land between the plaintiffs’ property and the defendants’ property and that if it he found by the court that the strip of land is a public alley, that the defendants be ordered to remove all structures therein; and for such further relief as the court deems just and proper.

The defendants filed two demurrers to the complaint. The first demurrer was filed on September 15, 1965, on the ground “that there is a defect of parties,” and in support thereof, states:

“The alleged alley between Lot 8, Block 16, Midland Hills Addition and Lots 13 and 14, Alpine Court Addition in the City of Little Rock, Arkansas, extends north from Alpine Pass (Street) along the east boundary line of Lots 13 and 14, Alpine Court Addition, and along the west line of Lots 2 to 8, both inclusive, of Block 16, Midland Hills Addition, which has never been open since the filing of the plat of Midland Hills Addition on May 13, 1911, and permanent improvements have been made on the. area .designated on the respective plat as an ■alley by the several property owners adjoining said alley, including the plaintiffs, and all of the owners of property adjacent to alleged alley will be affected by the opening of the alley, if any, and they are necessary parties hereto.”

The prayer of this demurrer was, “that the plaintiffs’ complaint be dismissed; or, in the alternative, that they be required to make all of .the owners of property immediately adjacent to said alley parties defendant herein; and for all other general,and equitable relief. . .” No separate hearing was had or action taken on this, demurrer.

On August 16, 1966, the defendants filed their second demurrer combined with their answer to the complaint. This demurrer states as grounds ‘ ‘ that said complaint does not state facts sufficient to constitute a cause of action.” The answer denied the allegations of the complaint and alleged that the alley designated on the plats was never opened; that permanent improvements had been made by several adjacent property owners on the area so designated as an’ alley in the plats; that said alley was closed to public use many years before plaintiffs purchased their property; that plaintiffs knew the alley had been closed when they purchased their property; that they also knew of the encroachments complained of in their complaint when they purchased their property; that plaintiffs had suffered no injury not suffered by the public at large, and are estopped to have said encroachments removed-

The case was heard by the chancellor on September 14, 1966, at which time the plaintiff testified at length. Letters and plats were introduced as exhibits and received in evidence, and plats and bills of assurance were introduced as exhibits by stipulation and received in evidence by the chancellor. At the close of the plaintiffs’ evidence, and after the plaintiff had rested, the defendant moved for dismissal with a statement as follows :

“If the Court please, at this time I would like to move the Court for dismissal of this case and affect a demurrer to the evidence. . .”

The chancellor entered a decree as follows:

“On this day came on for hearing the above entitled clause, the plaintiffs appearing in person and by their Attorney, Frank H. Cox, and the defendants appearing in person and by their Attorney, U. A. G-entry, and said cause is submitted to the Court on the pleadings and testimony of the plaintiff, James M. Cairns, the exhibits introduced, the stipulations of counsel, and the demurrer to the complaint, and the court being well and sufficiently advised finds that said demurrer should be sustained.
“It is therefore considered, adjudged and decreed that the demurrer be, and the same is, hereby sustained and the complaint dismissed at the plaintiff’s cost.” (Emphasis supplied).

Plaintiffs in the trial court are the appellants here and rely upon the following points for reversal:

“The Chancery Court erred in sustaining the Demurrer to the Complaint for the following reasons:
“1. The Appellants’ Complaint stated a valid cause of action.
“2. Under the law, the Appellants are entitled to the relief sought in the Complaint.
“3. All' of the necessary parties to this action were before the lower court.”

The recorded plats and bills of assurance of both subdivisions are a part of the record in this case by stipulation, and the land involved in this litigation is clearly designated as a sixteen foot alley in both plats. The appellants alleged in their complaint that the land was in fact what it appeared to be on the plats and that appellees were' claiming ownership of it and had placed encroachments therein to appellants’ special damages, in that it interfered with appellants’ use of their own property. Appellants prayed for a declaratory judgment determining the status of the alley, and that if it be found to be a public alley, that appellees be ordered to remove the encroachments therefrom. The appellees seem to concede that the declaratory judgment statute is applicable in a situation such as this, and we are of the opinion that appellants stated facts sufficient to constitute a present controversy or the ripening seeds of a controversy, and that the complaint as to cause of action stated, was good on demurrer. (Jessup v. Carmichael, 224 Ark. 230, 272 S. W. 2d 438).

This case is "before ns on error alleged in sustaining a demurrer, so we do not reach the second point argued by the appellants. Appellants’ complaint went further than their argument on their third point. The complaint was for a “declaratory judgment setting forth the status of the sixteen foot strip of land.” The other relief sought by appellants was incidental to, and dependent upon, the granting of the petition for a declaratory judgment finding the strip of land to be a public alley.

The thrust of the first half of appellees’ argument seems to be that other adjacent property owners have also encroached on the alley by building improvements therein and that they, as well as the City of Little Bock, would have an interest which would he affected by the declaratory judgment sought by appellants and are therefore indispensable parties to the action.

It is difficult to determine, from the record before us, Whether this argument is in support of the first demurrer filed by appellees or is in partial support of the order of dismissal. The decree before us simply recites that the cause was submitted on specifically designated pleadings, testimony, exhibits, stipulations ‘ ‘ and the demurrer to the complaint,” and then pronounces that ‘ ‘ the demurrer be and the same is, hereby sustained... ” The decree doesn’t say which one of the demurrers to the complaint was submitted and does not indicate which one was sustained.

The case of Lincoln v. McGehee Hotel Company, Inc., 181 Ark. 1117, 29 S. W. 2d 668, cited by appellants, is not in point with the case here. There was no question in anybody’s mind as to the status of Bridge Street in the Lincoln case, and the suit was not for a determination of its status as a public street. We recognize the principle of law reiterated in the Lincoln case that:

. abutting owners of real property have a right to enjoin the council from permitting or any one from making any permanent encroachments on the streets of the city on the ground that such encroachments constitute a public nuisance, and "the .abutting owners are entitled to injunctive , relief where they allege and prove, special injury.” . . .

The appellants in the case at bar might haye followed the same procedure as was followed in the Lincoln case except for one thing: Appellants in the case at bar were not sure that the land involved was á public alley and they submitted this question to the chancellor, by a petition for a declaratory judgment.

Ark. Stat. Ann. § 34-2510 (Repl. 1962) provides-as follows:

“When the declaratory relief is sought, .all persons shall be made parties who have or claim any. interest which would be affected by the declaration,And, qp declaration shall prejudice the fights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a.party, and shall be entitled to be heard, and if .the statute,,. ordinance or franchise is alleged to,be. unconstitutional, the Attorney General- of the State shall also be served with a copy of the proceeding and be. entitled to be heard.” .

.Where a defect in parties appears on the face) of. a complaint, there is no question that the defect can be reached by demurrer. (Ark. Stat. Ann. § 27-1115 [Repl, 1962]). In an action for declaratory judgment, however, it might appear that a demurrer based on defect in. parties defendant who have or claim any interest iyhich would.be affected by the declaration, could easily run into conflict without decisions on “speaking demurrers;” (21 R. C. L, p. 505; Dodson v. Abercrombie, 218 Ark. 50, 234 S. W. 2d 30; Rider v. McElroy, 194 Ark. 1106, 110 S. W. 2d 492, and Lawhon v. American C. & C. Co., 216 Ark. 23, 223 S. W. 2d 806). We have indicated, however, that such defect in a petition for a-declaratory judgment may be reached by demurrer. Johnson v. Robins, 223 Ark. 150, 264 S. W. 2d 640.

: The primary office of the demurrer to.a complaint is to test the sufficiency of the complaint as it is written and filed. In the case at bar the first demurrer, going to'a defect of parties, was filed on September 15, 1965. Although appellees argue the defect of parties in their brief,'no hearing was had and no action was taken or requested.''on^ this demurrer until the second general demurrer and .answer was filed on August 16, 1966. The decree recites that the cause was heard on September 14, 1966, and the record reveals that all of appellants’' evidence was submitted and heard on September 14, 1966. So we can only conclude that appellees waived, or abandoned, .the first demurrer as to the defect of parties' when'they filed their general demurrer and answer and proceeded to hearing on the case without insisting that the first demurrer be passed on by thé chancellor. (Ark. Stat. Ann. § 27-1140 [Repl. 1962]; Street v. Shull, 187 Ark. 180, 58 S. W. 2d 932).

'The récord is not' clear whether the'decreé was based on the first or second'-demurrer or both, or whether it was based on issues joined by the complaint and answer. At the close -of 'appellants’ evidence, appellees interposed’ an oral demurrer to the evidence. Appellees devote the second half of their argument to this demurrer apparently under the impression that it was the one sustained by the chancellor. A “written motion challenging the sufficiency of evidence” has supplanted the “demurrer to -evidence” in chancery practice, under Ark. Stat. Ann. § 27-1729 (Repl. 1962) and the dismissal of the'complaint in the case at bar, without leave to amend, would .indicate that it was the -demurrer to the evidence the chancellor may have considered and intended to sustain. The decree, however, merely sustained the demurrer to the complaint and the complaint was dismissed. That is all we have in the record before us.

Had the chancellor intended to render a decree on insufficiency of the evidence and not on the demurrer to the complaint, he could have done so easily enough without considering the demurrers at all.

Ark. Stat. Ann. § 34-2505 (Repl. 1962) provides:

“The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not termi-nat the uncertainty or controversy giving rise to the proceeding.”

Be that as it may, we are of the opinion the appellees abandoned or waived the first demurrer when the second was filed with the answer, and hearing was had on the cause without first disposing of the special demurrer. If it was the second demurrer the chancellor sustained, we are of the opinion the chancellor erred in sustaining it for the reason that the complaint stated facts sufficient to constitute a cause of action.

If the decree was based on the issues joined by the complaint and the answer, or on the demurrer to the evidence, the chancellor erred in sustaining the demurrer to the complaint.

The decrée is reversed and this cause remanded to the Chancery Court for further proceedings not inconsistent with this opinion.

Reversed and. remanded.


author: CoNley Byrd, Justice.

text:
    Joseph Horace Kurck v. State
    5254
    415 S. W. 2d 61
    Opinion delivered May 29, 1967

      Don Steel, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   CoNley Byrd, Justice.

This appeal is from a conviction arising out of what the State Police describe as a “green money racket money press.” The information charged appellant and one Ira Coleman Roberts jointly with obtaining personal property by false pretense, committed as follows:

“On February 14, 1966, in Polk County, Arkansas, said defendants with intent to defraud or cheat R. M. James Jr., designedly by color of false pretense obtained money, to-wit, $5,000.00, in cash from R. M. James Jr., specifically by pretending to take money from R. M. James Jr., for the purpose of duplicating the same and returning said money to R. M. James Jr., and by absconding with said money. ’ ’

The record shows that some time prior to February 14 appellant went by the home of James, the prosecuting witness, with a $10 hill and asked James what he thought about it; that the $10 bill looked all right and James suggested that appellant take it and two other $10 bills to the bank and see if they would pass. Appellant then advised James that the $10 bill was a duplicate. Later, appellant drove James to Bald Knob to meet a friend whom he introduced as Oscar Allen. Oscar Allen took a $10 bill, and some smelly stuff out of a bottle which he spread on two- pieces of paper, between which he rolled this $10 bill. Some of the color came off the bill. Allen then took the bill and soaked it in some white stuff and then in some green stuff. Then he went into the bathroom with it, came back and peeled out a wet $10 bill. The numbers on the bill were not the same as the first one. Allen explained this difference in numbers by the use of two little dots. James compared the bill produced by Allen with another $10 bill. Allen then suggested that he had only enough chemical to make one copy of the $10 bill and that he did not have enough to really develop it but one time, so he suggested that Kurck and James get up $10,000 apiece. Thereafter, Kurck and Allen drove by James’ home and informed him that they had everything set up in Mena, where Allen’s aunt lived.

On February 14, James got together $5,000, met appellant Kurck at the Ritz Motel in Little Rock and rode with him to Mena, where they met Allen at the Mena Cafe. At this time James showed Allen his money and Allen pointed out that two of the $100 bills’ would not do. This was corrected by James’ going to the bank and obtaining four $50 bills for the two $100 bills. From there the parties moved to the Pines Motel at Mena.

At the motel, Kurck put up $1,400 in addition to James’ $5,000. Kurck took all the money to the bathroom and wet it in the sink where they used some soap on the bills. The bills were then rinsed off in the bathtub by Allen and dipped in some brown-looking liquid. Allen then sat down at a table and started laying down a piece of white paper, a bill and a piece of white paper, stacking it all up. When it was all stacked up Allen and Kurck took the stack into the bathroom together with Allen’s bag. During this time James was lying on "the bed watching Allen and Kurck from the bedroom. When James next saw the stack it was pressed between two pieces of plywood 1% inches larger on all side's than a dollar bill. Appellant and Allen tightened up the press by the use of two small bolts. James saw this stack of paper with green in between.

After the press was tightened down, it was explained that Allen needed to go get his developing material. The press was put in the front seat of Kurck’s automobile between Kurck and James, and Allen pitched his bag in the back seat. In this manner they left the motel to go to the Mena Cafe, where Allen departed, ostensibly to get his developing fluid. After waiting and driving around for an hour or so, it became apparent that Allen was not going to return, so Kurck and James returned to the Ritz Motel in Little Rock with- the press in the seat between them. When they arrived at the Ritz Motel the press was opened. It was found to contain two $1 bills on one side and a $5 bill on thé other side, the rest of it being play money. Kurck took the play money, flushed it down the commode and left, taking the press with him. The next day James talked to his lawyer and went by to see Kurck. Kurck told James; that Oscar Allen was 55 to 60 years old and that he had met him in Newport News, Virginia in 1962.

While on the witness stand, James identified the state’s exhibits 1 and 2 as photographs of the person known to him as Oscar Allen.

Carroll Page, a policeman working in the Mena area, testified that on January 5, 1966, he had met appellant Kurck and one Garner Ward in Mena, and that they complained they had lost $2,700 in a swindle known as “green money racket money press.” The swindler was alleged to be a man named George Grayson whom Kurck had met in Virginia about three years earlier. Kurck related how G-rayson had demonstrated that he could duplicate a $20 bill and how they made a date to come to Mena, where G-rayson was supposed to have had an aunt living. Kurck told Trooper Page that the money was placed in a press, much like the one described by James, that somehow in the shuffle the money was changed to play money, that Mr. G-rayson had stated that he had to go get some more materials and would be back shortly. When Grayson did not return, they opened the press, which contained only play money. Kurck described Grayson to Trooper Page as being approximately six feet tall, weighing 170 pounds, with short gray hair, green eyes, and a large round scar on the left side of his neck just below the ear. Kurck described the scar as resembling a cancer that had been removed.

Mrs. Inez G. Bushman, who operates a drive-in on Highway 67 in Searcy, stated that in May Kurck approached her with a $5 bill which he said was duplicate money, and that thereafter he brought a Mr. King with him to talk to her about duplicating money. At this time Mr. King allegedly duplicated a $10 bill in much the same manner as that described by James. However, Mrs. Bushman was skeptical because the numbers differed and because of her- observation of the two bills when placed over a lamp. Thereafter she called the treasury agents, who asked her to go through with the deal. While there were some subsequent conversations between Mrs. Bushman, appellant Kurck and Mr. King, she refused to go through with the deal because Kurck and King insisted that the duplication would have to take place approximately 70 miles west of Hot Springs.

For reversal of his conviction, appellant relies upon the four points hereinafter discussed.

POINT I. The court erred, in overruling defendant’s demurrer to the information.

We find appellant’s contention tliat the trial court should have sustained appellant’s demurrer to the information to be without merit. While the language of the information is by no means ideal, we think the information is subject to the interpretation that appellant designedly, by color of false pretense, obtained $5,000 from R. M. James Jr., by pretending to take the money for the purpose of duplicating same and (by pretending to) return said money to R. M. James Jr.

POINT II. The evidence does not support the jury’s verdict.

Under this heading appellant argues that there is no evidence of false representation, no evidence of a fraudulent representation of an existing or past fact, and no evidence that appellant obtained $5,000 from the prosecuting witness.

We find appellant’s contentions to be without merit. A close reading of the facts will show that appellant Kurck and his friend, Ira Coleman Roberts (alias Oscar Allen), falsely represented to James that his $5,000 was in the money press — i. e., that his money was in between the white sheets and the two plywood boards which appellant and his friend tightened down before it was placed in the car seat between appellant and James.

We also find appellant’s contention that he received no part of the $5,000 to be without merit. The circumstantial evidence shows that he and the said Ira Coleman Roberts were employing a common scheme or method to obtain money by false pretenses and the jury could logically have inferred that since he was in the business he was receiving the proceeds. Furthermore, all distinction between principals and accessories before the fact has been abolished by Ark. Stat. Ann. § 41-118 (Repl. 1964).

When the “green money racket money press” scheme used by appellant and his friend, Ira Coleman Roberts, is viewed in its entirety, there can be no doubt that Janies relied upon the representation that his money was in the press "when he permitted Ira Coleman Roberts to depart their company, carrying with him the bag which he had taken into the bathroom at the time the money was allegedly placed in the money press.

POINT III. The court erred in permitting the introduction of photographs of Ira Coleman Roberts over the objection of the appellant.

We hold this contention to be without merit. The record shows that Sgt. James Honeycutt, of the State Police, identified the person in the pictures as Ira Coleman Roberts. Trooper Carroll Page identified the person in the pictures as Ira Coleman Roberts, and James and Mrs. 'Bushman both identified the man in the pictures as the man Kurck had introduced to them as Oscar Allen and Mr. King, respectively. In this situation the photographs were properly admitted for identification of the man appellant had introduced as; Mr. King and Mr. Allen.

POINT IY. Trial court erred by permitting the testimony of witnesses as to other transactions.

It will be observed that the trial court permitted the proof of the other transactions related by Trooper Page and Mrs. 'Bushman to go to the jury to show appellant’s identity, scheme, purpose, intent, design and motive. We have consistently held that proof of other transactions is admissible for such purposes. See State v. Dulaney, 87 Ark. 17, 112 S. W. 158 (1908); Keese v. State, 223 Ark. 261, 265 S. W. 2d 542 (1954); Alford v. State, 223 Ark. 330, 266 S. W. 2d 804 (1954).

Trooper Page’s testimony shows that appellant had knowledge of the manner in which the scheme worked, and that the Mr. Grayson whom appellant alleged to be his friend was described almost exactly as witness James described Mr. Allen. Mrs. Bushman’s testimony shows that she, like James, was first approached by appellant with a “duplicate” bill and that he later .introduced to her the same man he had introduced to James for the same alleged purpose.

Under these circumstances, we must hold that the testimony, under the restrictions of the trial court, was competent to go to the jury-

Affirmed.

Brown, J., disqualified.


author: Lyle Brown, Justice.

text:
    B-W Acceptance Corp. v. Norman Polk, dba Norm’s Furniture City
    5-4166
    414 S. W. 2d 849
    Original Opinion delivered April 24, 1967, p'. 422.
    [Supplemental Opinion delivered May 29, 1967, rehearing denied.]
   Lyle Brown, Justice.

On rehearing, B-WAC' urges that the three trust receipts 7, 12, and 13 were in default at the time this action was filed. That fact, so it is argued, would as a matter of law, give B-WAC right of possession “as of the commencement of the action.” It is true they had matured.

Norm Polk contended that with reference to matured trust receipts there was a procedure consistently followed between the parties and explained in this manner : Upon maturity of any trust receipt, B-WAC would send him — not a demand for payment — but a notice. B-WAC’s field representative who serviced Norm’s would receive a copy- The affected distributor would also receive a copy of the notice and the distributor would, without notice to Norm’s, pay to B-WAC' a ninety day renewal charge. The representative would call on Norm Polk regularly during the first half of each month, at which time the matured accounts would be settled. Norm Polk testified that he received no notices of maturity with respect to the last due-dates of the three receipts. Appellant’s credit manager and its field representative corroborated Polk’s testimony in a number of respects. The credit manager also testified that the primary reason for filing the lawsuit was because “we were not allowed to check the floor plan.”

Appellant asserts that evidence of this course of dealing was inadmissible because it was at variance with the terms of the contract. The appellant’s position is that non-payment of the trust receipts at maturity caused appellee to be in “default” at the time suit was filed, which in turn entitled appellant to repossess the entire floor plan. The evidence of custom operated to explain the ambiguous term “default” and not to vary the dates at which the trust receipts matured. Where terms in a contract are ambiguous, or are used in a sense other than the ordinary meaning of the words, oral testimony is admissible to explain the meaning of the words used. Paepcke-Leicht Lbr. Co. v. Talley, 106 Ark. 400, 153 S. W. 833 (1913); Ark. Stat. Ann. § 85-1-205 (Add. 1961). This evidence would justify a jury in concluding that appellee was not in “default” at the time a particular trust receipt matured, but rather that further steps were to be taken by both parties before this portion of the contract became operative.

Rehearing denied.


author: CaeletoN Haeeis, Chief Justice.

text:
    Thomas Linville Coleman v. State
    5274
    415 S. W. 2nd 549
    Opinion delivered June 5, 1967

      Edward 8. Maddox ánd Rice L. VanAusdall, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. General, for appellee.
   CaeletoN Haeeis, Chief Justice.

This is a case initiated under the provisions of our Criminal Procedure Rule No. 1, wherein petitioner (appellant), Thomas Lin-ville Coleman, seeks to vacate a sentence imposed by the Poinsett County Circuit Court on March 13, 1964, Coleman being sentenced to a term of 18 years in the penitentiary, following a jury verdict, which found him guilty of murder in the second degree. In his motion, Coleman asserts that his constitutional rights were violated in several respects, all of which will be subsequently discussed. The Poinsett County Circuit Court appointed counsel to represent Coleman on this petition, and, after an extensive hearing, the trial court denied the petition and remanded Coleman into the custody of the Superintendent of the Arkansas State Penitentiary. Prom the judgment so entered, appellant brings this appeal.

The trial judge (who did not preside at the original trial) conducted a full hearing, and, at the conclusion thereof, rendered a comprehensive opinion, probably the most extensive and thorough opinion delivered in one of these post-conviction hearings, which will be quoted from extensively throughout our own opinion.

It is first asserted that appellant was not given a preliminary examination, but there is no merit in this contention. A short time after the homicide, Coleman employed a Poinsett County lawyer to represent him. A hearing was scheduled before a magistrate, but counsel waived this hearing. This waiver, of course, has been frequently employed since prosecuting attorneys were given the authority to charge persons with crime by information; in fact, contrary procedure (conducting preliminary hearings) is rather rare. At any rate, the prosecutor proceeded to file an information against Coleman, charging him with murder in the first degree, and a warrant was served upon appellant. Within three days, bail was fixed at $7,500.00, and Coleman, upon supplying bail, was released from jail.

It is asserted that Coleman should have been indicted by the grand jury, rather than being charged by information filed by the prosecuting attorney, as heretofore mentioned. This point has been passed upon by the United States Supreme Court, and held to be without merit. See Hurtado v. California, 110 U. S. 516. Our own court has likewise held the contention to be without substance. Turney v. State, 239 Ark. 851, 395 S. W. 2d 1.

It is alleged that Coleman was denied the right to counsel, in that his counsel was so inadequate as to amount to his being deprived of this right. The record reflects that, after employing his first attorney, appellant proceeded to employ another attorney from Cross County to assist in his defense. Let it be remembered that these lawyers were not appointed by the court, but were retained by Coleman himself. Appellant complains that his counsel did not properly select the jury, refused to call several witnesses that he wanted to testify, used a witness that he (Coleman) did not want to use (and whose testimony according to appellant favored’ the state), and did not conduct the trial in a competent manner. These complaints, as commented on by the presiding judge at the post-conviction hearing, relate to trial strategy or tactics. As stated in U. S. ex rel Robinson v. Pate, 312 F. (2nd) 161 (cert. den.):

“* * * Petitioner lists a number of purported errors of omission and commission in Ms counsel’s conduct of the case. All of these relate to trial strategy or tactics, and involve elements of discretion and judgment on which skilled and experienced advocates might honestly disagree, particularly after the event.”

The trial court also commented in its opinion that the two lawyers “vigorously defended the petitioner. This is revealed in their pre-trial study of the jury panel, the voir dire examination, and the challenges exercised. With reference to the failure to call witnesses, the record indicates twenty witnesses were called and examined. That a witness might not have been helpful to the defense on all counts is not unusual. Some witnesses, such as Eldridge in this case, have to be called in order to establish a chain of custody of a vital piece of evidence. That they might testify adversely in some other area cannot be avoided.”

Appellant makes additional complaints against one of Ms. attorneys. While not at all clear from the record, it seems that one or two witnesses, who testified for the state, had formerly .served in the penitentiary, and appellant contended that this attorney had “(Sponsored ” this man (or men) when paroled. Like the trial court, we do not grasp the significance of this testimony, but this attorney, in testifying, denied that he had sponsored any prisoner, and stated that he had never signed a parole agreement with anybody. The trial court found that the attorney was not a sponsor of a “key” witness parolee as contended by Coleman.

Appellant further asserts that this same attorney had a conflict of. interest in that Coleman sold property in order to raise money for his defense and this lawyer represented the purchaser; it is contended that a less amount was paid for the property than had been agreed upon. The attorney denied this accusation, stating that he did not represent the purchaser of the land, but represented Coleman only and that all papers that he prepared, in connection with the sale, were prepared at the request of appellant. The trial court found:

u* * * with reference to the ‘Land Sale,’ it is well established that the sale was engineered by the defendant and his family to raise money for his defense. The transaction was directly with the purchaser who employed his own attorneys to complete the sale. The only thing brought out as to [the Coleman attorney’s] participation was that he prepared the contract for the defendant. Nothing has been offered to show that the contents of the contract were anything other than that which had been agreed upon between Coleman and Miller, the purchaser.”

Coleman’s last complaint, relative to his lawyers, is that they did not appeal the case. Both lawyers testified that they were not paid to perfect an appeal, and one stated that he felt that Coleman had but little chance to obtain a reversal, and he advised against it. At any rate, both stated that Coleman decided to forego an appeal, and to endeavor instead to obtain a pardon from the Governor’s office. The Circuit Judge commented as follows on this phase of the case:

‘ ‘ Counsel for the defendant did not appeal the case to the Arkansas Supreme Court as alleged by petitioner. The answer to this as ground for relief at this hearing is that they were not employed to do so. Petitioner was not indigent and could have employed his trial counsel or any other attorney for that matter to perfect the appeal. In this area it is more than apparent that the defendant, his family and advisors had come to the conclusion that they could obtain more immediate and conclusive relief from the jury’s verdict by pursuing the matter politically through pardon and parole channels than through more appropriate legal processes; That such thinking should have considerable present day currency is deplorable. However, in this endeavor failure was met, and it is both displeasing and regrettable that this failure should be rationalized into a charge of inadequacy of counsel by petitioner.”

Finally, Coleman contends that the trial judge (who tried the original case) went into the jury room and communicated with the jury after it had been in deliberation 15 or 20 minutes. Testimony to this effect was presented by Clifford Coleman and James Coleman, sons of appellant, who testified that one of the jurors asked the judge to come into the room, and the jurist' at first refused. The juror then said, “Judge, we need to ask you a question,” and, according to the witnesses, the judge then went into the room with the jury, stayed about 5 minutes, and came back out. One of the, sons stated that the judge went into the jury room twice.. This testimony was emphatically denied by the judge., himself, the court reporter, and the two attorneys, 'who represented Coleman on trial. The judge who' conducted the.present hearing stated: '

“As to the trial judge having improperly communicated with the jury, this is a clear cut question of fact. This court believes that the trial judge, did mot . do so: He so testified and his testimony is being accepted as true. This finding is buttressed by the. belief that, he would not have done so-at the conclusion of a hayd.fought trial well knowing such a communication • as>- testified about herein would certainly have constituted reyersible error. Nothing in the record indicates anything but that the trial judge presided in .a-completely .impartial manner.” , , ...

Not only is there substantial evidence- to support the findings of the trial court, but we are' al'sp of the view that the testimony weighs heavily against appellant’s contentions.

All' asserted errors have been examined, and tye agree with the Poinsett Circuit Court that the record does not reflect that the petitioner was denied any constitutional right secured to him hy either the Constitution of the United States or the Constitution of the State of Arkansas. '

The judgment is affirmed.

FoglemaN, J., disqualified.

       According to Coleman, his lawyers “had not even disqualified any of the jurors on voir dire examination.”

       Coleman stated, “One objection made during the trial. * * * Just to make it look good to the court, whatever it was, didn’t amount to anything.”

       Both lawyers, who served in the original trial, testified at length during the instant hearing.

       He did state that he’might have filed monthly reports for the sponsor.

      This terminology is used in lieu of the attorney’s ríame to prevent possible embarrassment.