author: George Rose Smith, Justice.

text:
    Dr. R. E. BELL v. STAREN & COMPANY
    75-309
    534 S.W. 2d 238
    Opinion delivered March 22, 1976

      Highsmith, Tatum, Highsmith, Gregg <3? Hart, by: Samuel C, Highsmith, for appellant.

      Bennett <3? Purtle, by: John Purlle, for appellee.
   George Rose Smith, Justice.

Under an Illinois statute a person who incurs an indebtedness may, in advance, authorize the creditor, upon default, to appoint an attorney to confess judgment on behalf of the debtor in any Illinois court having jurisdiction under the statute. Ill. Ann. Stats., S.H.A., ch. 110, § 50 (3) (1968); see also Motsinger v. Walker, 205 Ark. 236, 168 S.W. 2d 385 (1943). The appellee, Staren & Company, a Chicago broker dealing in commodity futures, obtained such a judgment by confession, in Cook County, Illinois, against the appellant, Dr. Bell, a resident of Batesville, Independence County, Arkansas. Staren then brought this action in Independence County to register the Illinois judgment. The circuit court granted Staren’s motion for summary judgment. For reversal Dr. Bell contends that the Illinois judgment is void, because Staren did not strictly comply with the mandatory provisions of the Illinois statute. We agree that the circuit court was in error in granting Staren’s motion for summary judgment.

The Illinois procedure, although constitutionally valid, may be rigorous and even oppressive, because the debtor confesses judgment in advance, without reserving any right to present his defenses. For that reason the statute itself, supra, and the Illinois cases recognize that the power to confess judgment “must be clearly given and strictly pursued, and a departure from the authority conferred will render the confessed judgment void.” Grundy County Nat. Bank v. Westfall, 49 Ill. 2d 498, 275 N.E. 2d 374 (1971). Thus the ultimate question in the case at bar is not whether the Illinois judgment is voidable but whether it is void, even in Illinois.

As far as this record shows, Dr. Bell signed only one instrument, a two-page finely-printed “Customer’s Agreement.” That document does not in itself impose upon Dr. Bell any pecuniary liability to Staren. It merely sets forth in detail the rules that will govern subsequent transactions in which Dr. Bell purchases securities or commodities through Staren, as broker. It is recognized that such securities or commodities, after having been purchased on margin by Dr. Bell, may decline on the market, requiring Dr. Bell to advance more money to Staren. If Dr. Bell fails within 24 hours after notification to make such an advance or to question the amount demanded, the account is deemed to be correct, and Dr. Bell authorizes Staren to appoint an attorney to confess judgment.

That is seemingly what happened, although no documents whatever, evidencing any purchases by Dr. Bell or any statement of his account or any demand for payment, are shown to have been filed in the Illinois proceedings. All that Staren filed in the Illinois court was a copy of the Customer’s Agreement, a bald assertion that 18,705, plus an attorney’s fee, was due, and a confession of liability signed by Woodrow W. Hodge as attorney for Dr. Bell. Upon those documents the Illinois court entered the judgment now sued upon.

We find apparently fatal defects in the Illinois proceeding. In the Westfall case, supra, the Illinois Supreme Court declared: “The extent of the liability undertaken must be ascertainable from the face of the instrument in which the warrant [to confess judgment] is granted. As was said in Weber v. Powers, 213 Ill. 370 at 383, 72 N.E. 1070 at 1074: ‘A judgment by confession must be for a fixed and definite sum, and not in confession of a fact that can only be established by testimony outside of the written documents, required by the statute tó be filed in order to enter up a judgment by confession.’ ” Here Staren introduced in the Illinois case no writing signed by Dr. Bell specifying the asserted debt of $8,-705. Counsel for the appellee cite no case to support their argument that the affidavit signed by some unidentified person in behalf of the Illinois plaintiff constituted one of the “written documents” required by statute to be filed.

In the second place, under the Illinois statute, supra, jurisdiction over the defendant can be asserted upon only three grounds: One, that the obligation was executed in the county where the suit is brought; two, that the defendant resides in that county; or three, that he owns property in that county. Here the first ground alone is relied upon. It is undisputed, however, that the Customer’s Agreement was signed by Dr. Bell in Arkansas. That agreement did not specify for its validity that it be approved in Illinois, as was true in the case relied upon by the appellee, Nationwide Commercial Co. v. Knox, 10 Ill. App. 3d 13, 293 N.E. 2d 638 (1973). Furthermore, Dr. Bell’s asserted liability must really depend upon his subsequent orders for the purchase of securities or commodities, but there is no contradiction of his affidavit that all documents which he executed in doing business with Staren were executed in Independence County. Thus Staren failed in the Illinois proceeding to make the jurisdictional showing that the action was brought upon an obligation executed by Dr. Bell in Cook County. The judgment was therefore void in Illinois and not entitled to full faith and credit here. Lefiar, American Conflicts Law, § 81 (rev. ed., 1968).

Finally, the Customer’s Agreement empowered Staren to appoint an attorney to confess judgment for Dr. Bell. The confession of judgment was signed by attorney Woodrow W. Hodge, but we can find nothing to show that he was appointed by the creditor for that purpose. Hence the appellant may be right in his insistence that the Illinois judgment is void because it was based upon “a warrant of attorney and a cognovit not made a part of the record.”

The case was decided below upon motion for summary judgment. Since that motion should not have been granted, the cause must be remanded for further proceedings.

Reversed and remanded.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    John Michael CARY v. STATE of Arkansas
    CR 75-159
    534 S.W. 2d 230
    Opinion delivered March 22, 1976

      Don Langston, for appellant.

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

Appellant John Michael Cary was convicted of ppssession, with intent to deliver, heroin in violation of Ark. Stat. Ann. § 82-2617 (a) (1) (i) (Supp. 1975) Act 590 of 1971, as amended. It was alleged in the information that the offense occurred on January 10, 1974. Prior to trial, appellant filed a motion to suppress heroin seized in a search of premises at 1708 South “R” Street, Apt. 6, in Fort Smith pursuant to a warrant issued by the Judge of the Municipal Court of Fort Smith. The warrant was issued upon an affidavit made by Sgt. Bill Reather. The affidavit read substantially as follows:

*** On the afternoon of January 5, 1974, I received information from a confidential but reliable informant who has proved very reliable in the past. The informant told me that he had been in Apartment No. 6, 1708 South “R”, in Fort Smith, Arkansas, an apartment he knew was shared by John Michael Cary and Larry Williams. The informant said while he was in the apartment the afternoon of January 5, 1974, he saw a large quantity of heroin that had been broken down into small packages called “quarter-T’s.” That on January 2, 1974, affiant was working with this same confidential and reliable informant. On that date informant told me that John Michael Cary had some heroin and was selling it from his apartment. On January 1, after talking with the informant I arranged for him to make a controlled buy of heroin from the above-described apartment. He went inside the apartment and then when he came back out he got into my car and gave me a small plastic bag containing a white powdery substance which was later field-tested and proved to be heroin. The informant told me that John Michael Cary and Larry Williams were both in the apartment at the time he made the buy. That on January 9, 1974,1 received information from the same confidential but reliable informant that he had been in the apartment of John Michael Cary and Larry Williams that day and he personally observed a large quantity of heroin that had been broken down into small packages called “quarter-T’s.” That recently Captain Rivaldo of the Narcotics Unit of the Fort Smith Police Department interviewed John Michael Cary and Cary told him that he was living in Apartment No. 6 at 1708 South “R” in Fort Smith, Arkansas. Based on the above the affiant has reason to believe that heroin and other dangerous drugs are now being stored on the premises known as Apartment No. 6, 1708 South “R”, Fort Smith, Arkansas, the residence of John Michael Cary.

Appellant contends that the affidavit was defective in that it contains no statement of facts from which the magistrate could conclude that the unidentified informant was reliable.

In testing an affidavit for a search warrant, the issuing magistrate must render a judgment based upon a common sense reading of the entire affidavit and great deference should be shown his determination. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1968). The sufficiency of the affidavit might indeed be subject to question, were it not for the fact that the earliest report made by the informant to the police officer was the result of the “controlled buy.” The officer’s relating the facts pertaining to that incident certainly gave the magistrate advice of underlying circumstances from which the officer concluded that the informer was reliable, so that the magistrate did not have to depend only upon the officer’s suspicion, belief or conclusion. The magistrate’s determination then, not being based simply upon the officer’s conclusion, was sufficient to support the issuance of the warrant. Jones v. United States, 353 F. 2d 908 (D.C. Cir., 1965).

Appellant also argues that the circuit court erred in admitting testimony showing his participation in the sales of marijuana on November 22, 1971, May 3, 1972, and December 20, 1973. He first objects that the first two were too remote in time from the date he is alleged to have committed the crime for which he was charged. The matter of remoteness is addressed to the sound judicial discretion of the trial judge, which will be interfered with by a reviewing court only when it is clear that the questioned evidence has no connection with any issue in the case. Caton v. State, 252 Ark. 420, 479 S.W. 2d 537; King v. United States, 144 F. 2d 729 (8 Cir., 1944). We find no abuse of discretion, particularly in view of the fact that there was testimony tending to prove intervening instances during the two years between the first and the offense charged. See Wilson v. State, 184 Ark. 119, 41 S.W. 2d 764; King v. United States, supra.

Appellant next asserts that evidence of sales of marijuana should not be admitted to show intention to deliver heroin, because the sale of marijuana is a relatively minor offense, by comparison, and that marijuana is not sufficiently similar to heroin to have any relevance. His principal reliance is upon Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913. But in Sweatt, intent was not an issue. The defendant was there accused of the sale of LSD and based upon Alford v. State, 223 Ark. 330, 266 S.W. 2d 804, we held that the only relevancy of prior sales of marijuana would be to show that the accused, having previously sold drugs was likely to do so again. But it is clearly pointed out in Alford that evidence of previous offenses bearing on intent is admissible. The test is not the comparative seriousness of the offenses, it is only necessary that they be similar in nature to the crime charged. Wood v. State, 248 Ark. 109, 450 S.W. 2d 537; Wilson v. State, supra. There was sufficient similarity here. See, People v. Tabb, 137 Cal. App. 167, 289 P. 2d 858 (1955).

Another alleged error is the denial of appellant’s motion for a mistrial when a witness called by him mentioned on cross-examination that appellant was on parole at the time of the alleged offense. The answer was not in any way responsive to the prosecuting attorney’s question. The witness did not finish the answer before he was interrupted by the objection. The circuit judge admonished the jury not to consider the statement as evidence of appellant’s guilt. Appellant relies on cases from other jurisdictions as authority that an admonition is not sufficient to eliminate prejudice to a defendant arising from an injection into the trial of evidence of his prior criminal record. We have left the matter of deciding whether prejudice of improper evidence may be removed by an admonition largely to the discretion of the trial judge. The only alternative to the admonition was the declaration of a mistrial, a drastic remedy to be resorted to only when the prejudice is so great that it cannot be removed by an admonition. Hathcock v. State, 256 Ark. 707, 510 S.W. 2d 276. See also Yarbrough v. State, 251 Ark. 732, 520 S.W. 2d 227; Hill v. State, 255 Ark. 720, 502 S.W. 2d 649; Parrott v. State, 246 Ark. 672, 439 S.W. 2d 924. We find no abuse of discretion in this connection.

The question of the sufficiency of the evidence to sustain the court’s denial of appellant’s motion for directed verdict has required us to examine the testimony rather closely because it was so cryptically abstracted, and there are many references to testimony in the state’s brief not disclosed by appellant’s abstract. The manager of the apartment where the heroin was found pursuant to the search warrant previously mentioned testified that he rented the apartment in which the heroin was found to Susan Walker on December 15, 1973 for six months, for occupancy by three persons, one of whom was represented to be her husband. The “husband” was the appellant but he was known to the manager as John Walker. The manager saw him about the premises during the first week in January, 1974. He had collected rent from appellant on December 20, 1973. On December 21, 1973, appellant had told Capt. Rivaldo of the Fort Smith Police Department that he lived at this apartment. The other occupant of the apartment was Lawrence Williams. Williams, called as a witness by appellant, testified that this apartment was not his permanent residence and that he only stayed there “off and on.”

When the search was conducted, only Williams and Susan Walker were present. The heroin was found in small plastic bags inside a small plastic box folded in a rug, blanket or tapestry on top of a bedroom closet shelf. Sgt. Reather, one of the searching officers, found a glove in the closet. This glove bore appellant’s name. Personal papers belonging to appellant were found in other rooms in the apartment. When the officers entered the apartment, Susan Walker was in another bedroom. Williams told the officers that he had been sleeping on the couch in the living room.

Williams testified that he was the owner of the heroin and that appellant has never possessed it. He said that appellant had used heroin from the supply in his (Williams’) possession and had, on one occasion, “picked up the money” paid for the marijuana Williams had sold. He also testified that Cary had left for Fayetteville in the daytime just preceding the “raid,” which took place after 1:00 a.m. Williams stated that he saw appellant after the search and that appellant, knowing that the police were looking for him, asked if Williams had been caught with any heroin and if Williams had charged the officers for the heroin sample used for analysis. Williams also testified that “whenever John left he told me that he was not going to wait around to go to trial.” He stated that others purchased heroin from him at the apartment.

Of course, in determining whether the evidence of appellant’s guilt was substantial, it, with all reasonable inferences to be drawn from it, is viewed in the light most favorable to the state. Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79. When it is, we cannot say that the inference that appella-t had joint or constructive possession of the heroin is unreasonable. Either is sufficient. Smith v. United States, 385 F. 2d 34 (5 Cir., 1967); Hernandez v. United States, 300 F. 2d 114 (5th Cir. 1962); State v. Villavicencio, 108 Ariz. 518, 502 P. 2d 1337 (1972); State v. Trowbridge, 157 Mont. 527, 487 P. 2d 530 (1971); State v. Bellam, 225 La. 445, 73 S. 2d 311 (1954); People v. McDaniel, 154 Cal. App. 2d 475, 316 P. 2d 660 (1957). See Annot, 56 ALR 3d 948 (1974). Constructive possession of a controlled substance means knowledge of its presence and control over it. State v. Montoya, 85 N. M. 126, 509 P. 2d 893 (1973). See also, People v. Bock Leung Chew, 142 Cal. App. 2d 400, 298 P. 2d 118 (1956). Neither actual physical possession at the time of arrest nor physical presence when the offending substance is found is required. People v. McDaniel, supra; People v. Bock Leung Chew, supra. As a matter of fact, neither exclusive nor physical possession is necessary to sustain a charge if the place where the offending substance is found is under the dominion and control of the accused. State v. Trowbridge, supra; Hernandez v. United States, supra; State v. Hunt, 91 Ariz. 149, 370 P. 2d 642; People v. Bretado, 178 Cal. App. 2d 465, 3 Cal. Rptr. 216 (1960); People v. Yeoman, 261 Cal. App. 2d 338, 67 Cal. Rptr. 869 (1968). It was reasonable for the jury to infer from the evidence that the premises were under appellant’s dominion and control. People v. McDaniel, supra. In People v. Williams, 95 Cal. Rptr. 530, 485 P. 2d 1146 (1971), the Supreme Court of California said:

*** Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another. (People v. Francis, supra, 71 Cal. 2d 66, 71, 75 Cal. Rptr. 199, 450 P. 2d 591).
The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. ***

See also, State v. Villavicenio, supra; Sewell v. United States, 406 F. 2d 1289 (8th Cir. 1969). The evidence is sufficient if it is shown, either by direct or circumstantial evidence, that the accused had the right to exercise control over the contraband substance. State v. Trowbridge, supra; Hernandez v. United States, supra. The offense, and its elements, may be proved by circumstantial evidence. Smith v. United States, supra; Hernandez v. United States, supra; People v. Haynes, 253 Cal. App. 2d 1060, 61 Cal. Rptr. 859 (1967); People v. Yeoman, supra. See Annot, 56 ALR 3d 948, 953. The evidence of the circumstances is sufficient basis for a reasonable inference that appellant knew of the presence of the heroin and that he had the right to exercise, at least, joint dominion and control of it. See People v. Bretado, 178 Cal. App. 2d 465, 3 Cal. Rptr. 216 (1960). When the evidence of possession is purely circumstantial, there must be some factor, in addition to joint occupancy of the place where narcotics are found, linking the accused with the narcotic in order to establish joint possession. People v. Davenport, 39 Mich. App. 252, 197 N.W. 2d 521, 56 ALR 3d 942 (1972). See also, State v. Hunt, supra; Annot, 56 ALR 3d 948, 957 and cases cited. But it was not necessary to show that appellant had exclusive possession of either the apartment or the bedroom closet where the heroin was found. Annot, 56 ALR 3d 948, 956 and cases cited. The finding of appellant’s glove in the closet might not have been sufficient to furnish this link, but when this factor is coupled with evidence that appellant used heroin from the stock kept on the premises and that sales were made there, and the remarks of appellant to Williams after the search, there were sufficient circumstances from which it was reasonable for a jury to draw the inference that appellant had joint possession of the substance, even though that possession might have been constructive. See State v. Weiss, 73 Wash. 2d 372, 438 P. 2d 610 (1968); People v. Haynes, supra. See Annot, 56 ALR 3d 948, 854.

Finally, appellant mounts a three-pronged attack on Ark. Stat. Ann. § 82-2624 (Supp. 1975) which he labels as the Habitual Drug Offender Statute. He first contends that it is unconstitutional because it does not provide a procedure for its administration or prescribe the type of evidence admissible to prove the convictions as does the Habitual Criminal Act [Ark. Stat. § 43-2328 et seq. (Repl. 1964 and Supp. 1975)]. For some reason, appellant complains of this omission and simultaneously argues that the court denied him due process of law by utilizing the procedures outlined for application of the Habitual Criminal Act in Ark. Stat. Ann. § 43-2330, 2330.1 (Repl. 1964 and Supp. 1975).

Appellant has not furnished us with any citation of authority in support of his contentions. We find no merit in them. There are other statutes providing for enhancement of punishment for second of subsequent convictions. See, e.g., Ark. Stat. Ann. § 75-1029.4 (Supp. 1975). We simply do not find any basis for declaring Ark. Stat. Ann. § 82-2624 unconstitutional and cannot see how appellant has been deprived of due process of law by the circuit court’s patterning its procedures for fixing punishment after those provided in the Habitual Criminal Act.

Long ago, we held that statutes providing for increased penalties when an offense is committed by a prior offender are valid. Wolf v. State, 135 Ark. 574, 206 S.W. 39. See also, Ferguson v. State, 249 Ark. 138, 458 S.W. 2d 383. But if the court in this case had permitted evidence of previous convictions to be admitted during the trial and before the jury had arrived at a verdict of guilty of the offense charged, it might well have deprived appellant of a fair trial under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. See Miller v. State, 239 Ark. 836, 394 S.W. 2d 601. There we held the procedure followed in applying a habitual criminal act unconstitutional but not the act. We prescribed procedures to insure the defendant a fair trial, but which would, under certain circumstances, permit a separate hearing on prior convictions and an increase of punishment on account thereof. Subsequently procedures more nearly like those proposed in a dissenting opinion were adopted by the legislature. Ark. Stat. Ann. § 43-2330.1 (Supp. 1975). We have long upheld the procedure and see no reason why following it in this case did not adequately prevent prejudice to appellant.

One facet of appellant’s argument in this connection is directed toward the court’s refusal of his requested instruction No. 2. The basis of this objection was actually the court’s refusal to present the penalty stated for a first offense, which was also the ground for his objection to Court?s Instruction No. 5. For the reasons heretofore stated, we find no merit in this argument.

Appellant feels that there was error in the admission of testimony of a prior conviction through the testimony of the Circuit Clerk of Sebastian County. As custodian of all records of the Circuit Court of Sebastian County, he testified that among them was a penitentiary commitment of John Michael Cary for a term of five years for violation of Act 590 of 1971, as amended. He testified that the commitment contained a statement that it was a true and perfect transcript of the judgment. The only objection made in the trial court was that the judgment itself was not introduced. However, appellant argues here that even if the trial court did not err in following procedures outlined in the Habitual Criminal Act, this evidence was not admissible. But we have heretofore recognized that Ark. Stat. Ann. § 43-2330 simply provides that properly certified copies of certain documents are prima facie evidence of prior convictions but does not exclude other methods of proof of prior convictions. Parker v. State, 258 Ark. 880, 529 S.W. 2d 860 (1975). When the statutory method for proving prior convictions is not exclusive, they may be shown in accordance with common law rules or by any otherwise competent evidence. People v. McIntyre, 163 N.Y.S. 528, 35 N.Y.Cr. 413, 99 Misc. 17 (1917); People v. Hill, 67 Cal. 2d 105, 60 Cal. Rptr. 234, 429 P. 2d 586 (1967). In Parker we held that a penitentiary commitment which contained a transcript of the judgment of conviction was admissible in evidence. We have also held that the testimony of the circuit clerk that the accused had been convicted of the first offense of drunken driving was admissible in a prosecution for a second offense. Atha v. State, 217 Ark. 599, 232 S.W. 2d 452. Later, we held that testimony of a circuit court clerk as to the contents of official records was sufficient to support a habitual criminal conviction. Ellingburg v. State, 254 Ark. 199, 492 S.W. 2d 904. We find no error in admitting the evidence in this case.

Since we find no error, the judgment is affirmed.

      Larry Williams, a witness called by appellant, testified that the couple were not married, but that Susan Walker was one of appellant’s many girlfriends.


author: Frank Holt, Justice.

text:
    Edward Lynn CLARK v. SHILOH TANK AND ERECTION COMPANY and HARTFORD INSURANCE COMPANY
    75-338
    534 S.W. 2d 240
    Opinion delivered March 22, 1976

      Niblock, Hipp & Odom, for appellant.

      Putnam, Davis & Bassett, for appellees.
   Frank Holt, Justice.

This is a workmen’s compensation case. Appellant was a welder’s helper for the appellee, Shiloh Tank and Erection Company, when a sheet of steel fell across his right foot amputating the anterior portion of it. A surgical amputation of the foot at mid-ankle was required. The Workmen’s Compensation Commission awarded appellant 125 weeks, the maximum benefit, for the loss of his foot as a scheduled injury under Ark. Stat. Ann. § 81-1313 (c) (11) (Repl. 1960). An additional 22.5 weeks was awarded (or the equivalent of 5%) as a permanent partial disability to the body as a whole for a back injury which the commission found was attributable to the loss of the foot. The commission further found that the primary limitation in regard to claimant’s loss of earning capacity resulted from his amputated foot and not his back. Appellant’s sole contention or argument on appeal is that where a scheduled injury is coupled with or produces an unscheduled injury, the combined effect should be apportioned to the body as a whole. Consequently, it is asserted the commission erred in not doing so. We cannot agree inasmuch as appellant’s contention would convert a fact question, which is presented here, into a question of law.

It is well established that in compensation cases the burden is upon a claimant to establish his claim for compensation by a preponderance of evidence before the commission. On appeal we consider only that evidence which is most favorable to the commission’s finding and affirm if any substantial evidence exists. Superior Improvement Co. v. Hignight, 254 Ark. 328, 493 S.W. 2d 424 (1973). In the case at bar there is substantial evidence to sustain the commission’s findings. It is undisputed that appellant’s foot injury necessitated the surgical amputation at the right ankle. Admittedly, this is a scheduled injury pursuant to Ark. Stat. Ann. § 81-1313 (c) (11) (Repl. 1960). Some fourteen months after suffering the foot injury, the appellant complained to his doctor that he was suffering from pain in his lower back. According to the appellant his back started bothering him when he got off crutches and started using his leg with the prosthesis. According to his doctor, the type of amputation, the use of the prosthetic device and the unlevel limb when not using the device are continuing to aggravate his back condition. In the doctor’s opinion the appellant has a 5% permanent partial disability to his back.

We have held that, absent total disability, a scheduled injury or injuries cannot be apportioned to the body as a whole. McNeely v. Clem Mill & Gin, 241 Ark. 498, 409 S.W. 2d 502 (1966); Moyers Brothers v. Poe, 249 Ark. 984, 462 S.W. 2d 862 (1971); Anchor Const. Co. v. Rice, 252 Ark. 460, 479 S.W. 2d 573 (1972); Meadowlake Nursing Home v. Sullivan, 253 Ark. 403; 486 S.W. 2d 82 (1972); and Motor Queen Motel v. Sandlin, 254 Ark. 166, 492 S.W. 2d 257 (1973). In the case at bar, as indicated, there is substantial evidence to support tfie commission’s finding that the appellant was not totally disabled as a result of his scheduled injury or the combination of it and his back injury. It follows that the commission correctly applied the law.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Peggy GRAVNING v. THE AMERICAN DRUGGISTS’ INSURANCE COMPANY
    75-291
    534 S.W. 2d 754
    Opinion delivered March 29, 1976

      Niblock, Hipp & Odom, for appellant.

      Putman, Davis & Basset, for appellee.
   Carleton Harris, Chief Justice.

On August 10, 1971, a deed was executed from Elsie Norwood to Peggy Gravning, appellant herein, conveying a lot and house in Lincoln, Arkansas; also, on August 10, appellant and her brother, Darrell Mattox, executed a note to the Bank of Lincoln for $7,000.00, and Mrs. Gravning also executed a mortgage on the aforementioned property in that amount. At the same time, appellant executed a deed to this property to her brother, and this deed remained in the custody of the bank, unrecorded. Mattox had paid the full consideration for the house on behalf of his sister, and he received the proceeds of the $7,000.00 loan horn the bank. The Norwood deed was recorded on August 11. In December, 1971, Mrs. Gravning signed another note to the Lincoln Bank for $3,117.41, an F.H.A. improvement loan. On February 19, 1973, a homeowner’s insurance policy was issued to appellant by The American Druggists’ Insurance Company with policy limits of $15,000.00 for the dwelling and $7,500.00 for the contents, and on October 24, 1973, the dwelling was totally destroyed by fire. In February, 1974, Mrs. Gravning and her brother filed a complaint against the insurance company for recovery of the face amount the policy, $15,000.00, for the total loss of the dwelling, and $2,500.00 was sought for loss of the contents, plus interest, penalty and reasonable attorney’s fees and costs. The company filed a cross-complaint and paid the sum of $7,468.85, the balance due on the two notes to the Lincoln Bank and prayed to be subrogated to the bank’s rights on the indebtedness. This payment was made during the pendency of the lawsuit and thereafter, the bank notified Mattox to pick up the entire file, which included the deed given to him by his sister. This deed was recorded on June 26, 1974. On trial, at the conclusion of appellant’s evidence, she moved for a directed verdict, and when it developed that appellee did not desire to put on any testimony, the motion was renewed, but again denied.

The jury returned a verdict for Mrs. Gravning in the amount of $l,500.00 for the dwelling and $2,000.00 for the personal property. After a motion for a new trial was denied, appellant appealed to this court setting out four points of asserted error. We will discuss three of these points, the fourth having no bearing under the conclusions reached.

The determination of this litigation does not depend upon a statement of the facts, for it is conceded that Mrs. Gravning had an insurable interest in the dwelling. From appellee’s brief:

“It is, of course, undisputed that at the time of the fire, appellant remained liable on the promissory notes which she had executed, one of which had also been executed by Mattox. If, however, Mattox was the owner of the property at the time of the fire, appellant’s only interest in the property stemmed from her potential liability on the notes and appellee respectfully submits that the extent of her insurable interest was the amount owed on the two notes at the time of the fire. It is undisputed that appellee voluntarily paid into court the amount due the Bank of Lincoln on the two promissory notes signed by appellant. This amounted to some $¡7,-468.85. Upon payment of this amount, which discharged appellant’s liability to the Bank of Lincoln in full, appellant had no further interest in the property and anything beyond the amount she owed on the notes would be a windfall to her. In short, appellant’s insurable interest was limited to her potential liability on the promissory notes.”

In Tedford v. Security State Fire Insurance Company, 224 Ark. 1047, 278 S.W. 2d 89, Tedford owned a one-eleventh interest in the insured property, but obtained a policy for its full value. After fire destroyed the property, the company denied liability on the ground that Tedford had misrepresented his interest in the application for the policy. The trial court found for Tedford, but limited the recovery to one-eleventh of the face value of the property because of a provision in the policy that purported to limit any recovery to the amount of the insured’s interest in the property.

On appeal, this court affirmed as to the company’s liability but reversed as to the amount of recovery, awarding Tedford the face value of the policy under Ark. Stat. Ann. § 66-3901 (Repl. 1966) (then codified as § 66-515). It was noted that the statute provided a “valuation fixed in advance by the parties by way of liquidated damages in the case of total loss by fire of the property insured without the fault of the insurer,” and earlier decisions were cited that had held void attempts by insurance companies to limit recoveries to less than the face value in contravention of the statute. We said:

“The rule applicable in the present situation is stated in 29 Am. Jur., Insurance, § 1196, as follows: ‘It is recognized by all the cases decided upon the question that under a valued policy or the provisions of a valued policy statute, the insured insuring the property at a given valuation accepted by the insurer at the time of the issuance of the policy as the value of the insured’s interest may recover the full value insured, even though he in fact has a limited or qualified interest worth less than the amount of the insurance. The insurer may not go behind the policy and show that the insured’s interest is worth less than the amount of the policy.’ Cases from other jurisdictions which support this rule are collected in 68 A.L.R. 1352.
“We think the Washington court properly interpreted the purpose and effect of the valued policy statute in Bright v. Hanover F. Ins. Co., 48 Wash. 60, 92 Pac. 779, where it said: ‘The appellant contends that this section does not apply where the interest of the insured is a limited or qualified one, such as that of a tenant, a party in possession, etc.; but with this contention we are unable to agree. ***
‘The courts hold that the valued policy law applies in cases of concurrent insurance, and we perceive no sound reason for holding that the act does not apply to insurance on special or limited interests in real property. On the contrary, we think the plain reason and policy of the law require us to hold otherwise. It is doubtless true, as contended by the appellant, that the aggregate insurance on the several parts may exceed the value of the whole, but so may a single policy, and so may concurrent policies. To a certain extent the law undoubtedly gives legal sanction to [a] wagering contract, but the policy of such a law is for the Legislature, and not for the courts.’ ”

Two subsequent decisions have upheld face-value recoveries when insureds had less than full interests in the respective properties. In Hensley v. Farm Bureau Mutual Insurance Company of Arkansas, 243 Ark. 408, 420 S.W. 2d 76, the insured had signed a contract to sell the property to a third party before the fire occurred. The insured had remained liable on a mortgage pn the property, however. The purchaser of the property also obtained coverage, and after the fire, was paid the full amount by his company. Thereupon, he paid Hensley. Hensley instituted suit to collect the full amount of his policy under the valued policy statute, but the trial court denied recovery on the basis that Hensley would be unjustly enriched. On appeal, we reversed and allowed full recovery. The point at issue was different from that in the present litigation, but, of course, we found that Hensley had an insurable interest for the full amount.

Similarly, in Interstate Fire Insurance Company v. James, 252 Ark. 638, 480 S.W. 2d 341, James had only a one-third interest in the insured property. The other owners had obtained separate insurance, however, and after a total fire loss the company sought to have liability prorated among the various insurers. This court affirmed a summary judgment for James for the face value of his policy under § 66-3901, stating that Hensley was controlling.

It is thus apparent that Mrs. Gravening was entitled to recover the full $15,000 (less, of course, the amount paid to the bank), and had the proper motion for directed verdict been made, the failure to grant same would have constituted error. Let it be remembered that Mrs. Gravning was also seeking $2,500.00 for loss of personal property. Under testimony presented as to the value of the personal property, the amount due was a fact question, and actually the jury returned a verdict of $2,000.00. Accordingly, appellant was not entitled to a directed verdict on this phase of the litigation. In making her motion, it may well be that counsel for Mrs. Gravning had in mind only the real estate, since he mentioned the indebtedness to the Bank of Lincoln, the mortgage and the note, and stated “clearly by Arkansas law this is an insurable interest as defined by the cases that would entitle her to the face amount of the policy. We ask for a directed verdict.” However, the motion simply was for a directed verdict which would include all that she sought in her complaint, and if appellant only had reference to the property covered by the valued policy law, the motion should have been more specific.

However, appellant sought several instructions which the court refused, and the refusal is asserted to constitute error. We agree with appellant that four of these should have been given. The first of these, Requested Instruction No. 7, recited the statute (§ 66-3901).

Appellant’s Requested Instruction No. 13, as follows, should also have been given:

“Under a valued policy on the provisions of a valued policy statute, the insured insuring the property at a given valuation accepted by the insurer at the time of the issuance of the policy as the value of the insured’s interest may recover the full value insured even though he, in fact, has a limited or qualified interest worth less than the amount of the insurance, and the insurer may not go behind the policy and show the insured’s interest is worth less than the amount of the policy.”

Four instructions were also requested on insurable interest, Requested Instruction No. 8 defining such an interest, and quoting verbatim the statute, Ark. Stat. Ann. § 66-3205 (Repl. 1966). While a more succinct instruction could have been given, the court did not in any of its other instructions properly inform the jury as to insurable interest, and the instruction should have been given. Likewise, Requested Instruction No. 6 should have been given, as follows:

“The interest of the mortgagor is not defeated by a voluntary sale of the premises where he remains liable for the mortgage debt.”

It is contended, and we agree, that the court also erred in giving Instruction No. 10 and No. 12, the former being to the effect that if the deed from Mrs. Gravning to her brother was effective to convey title, she could not recover, and No. 12 erroneously telling the jury that if she had transferred her interest or ownership in the house prior to the fire, the verdict should be for appellee.

It follows from what has been said that the judgment should be reversed. While the $2,000.00 awarded by the jury for the loss of personal property is not attacked on this appeal, still, under our cases, it is necessary that the entire judgment be reversed. The rule is that a verdict at law “is an entirety which we cannot divide by affirming in part.” Wilson v. Davis, 230 Ark. 1013, 328 S.W. 2d 249. In Martin v. Street Improvement District No. 349, 180 Ark. 298, 21 S.W. 2d 430, Chief Justice Hart stated:

“The practice in this State has been that, when a verdict is set aside as being inadequate, the court must grant a new trial in the whole case. The reason is that a verdict, as the foundation of a judgment at law, is an entity, and cannot be divided by the trial court.”

Accordingly, because of the errors herein set out, the judgment is reversed and the cause remanded to the Washington County Circuit Court with directions to proceed in a manner not inconsistent with this opinion.

It is so ordered.

      Mattox took a voluntary nonsuit before the case was submitted to the jury.

      This figure was clearly a compromise and not based on any instruction from the court, the court telling the jury that if they found she was the owner of the property at the time of the fire, she would be entitled to the difference in what had been paid the bank and the 515,000.00 coverage; if they found she was not the owner at the time of the fire, she would be entitled to nothing.

      Mrs. Gravning and Mattox testified that she executed the deed in order that the property would “stay in the family” in case she decided to leave Lincoln or “if anything happened to her.” Appellant and her children moved into the house and she obtained the 53,117.41 F.H.A. home improvement loan, lived there, paid taxes on the property in 1971, 1972, and 1973, but after receiving her college degree at the University of Arkansas in June, 1973, she moved, to Tulsa seeking employment; thereafter, she went on to San Diego, California, still seeking employment, and was living there at the time of the trial. She had not made Lincoln her home since 1973, although she still received mail at Lincoln at the time the house burned. After Mrs. Gravning left Lincoln, her brother twice rented the house to other persons, checking with appellant each time, and he had rented it a third time just before the fire. The rentals were applied to the monthly payments on the note at the bank, Mattox paying the difference.

      “66-3901. VALUED POLICY LAW. — A fire insurance policy, in case of a total loss by fire of the property insured, shall be held and considered to be a liquidated demand and against the company taking such risk, for the full amount stated in such policy, or the full amount upon which the company charges, collects or receives a premium; provided, the provisions of this section shall not apply to personal property.”

       See Couch on Insurance 2d § 24:71 (1960).


text:
    David ROTHGEB et ux v. SAFECO INSURANCE COMPANY of America
    75-320
    534 S.W. 2d 759
    Opinion delivered March 29, 1976

      Parker & Henry, for appellants.

      Barnett, Wheatley, Smith & Deacon, for appellee.
   Frank Holt, Justice.

Appellants brought this action to recover damages under the provisions of a blanket corporate surety bond issued by appellee on the members of the Arkansas Realtors Association. A surety bond is required by Ark. Stat. Ann. § 71-1305 (c) (Supp. 1975). Appellants contend that the trial court erred in granting appellee’s motion for summary judgment inasmuch as there existed material issues of fact.

It appears the undisputed facts are that Wimpy and Steele, a real estate partnership, owned some property which they sold to appellants. Appellants brought this action for damages against Wimpy and Steele, individually and as partners, alleging that Wimpy committed acts during the course of their dealings with them which were in violation of Ark. Stat. Ann. § 71-1307 (Supp. 1975). Also appellee surety was joined as a defendant pursuant to the provisions of § 71-1305. Wimpy and Steele declared bankruptcy. Appellee moved for a summary judgment on the basis that Wimpy and Steele were the owners of the property at the time appellants contracted with them and, therefore, Wimpy, as an owner of the property, was not functioning as a real estate agent within the meaning of Ark. Stat. Ann. § 71-1301, et seq. (Supp. 1975), at the time of the transaction. Alternatively, it was asserted that appellee’s blanket statutory $2,000 bond with the Arkansas Realtors Association provided that it did not extend coverage to the members of that group who were bonded, as Wimpy was here, under another real estate broker’s bond.

We must agree with appellee’s position that since Wimpy was selling land owned by him and Steele, he could not be considered an agent or broker, which requires a license, within the meaning of § 71-1302. If Wimpy was acting solely as the owner, he would not come within the provisions of § 71-1302. Cf. Phillips v. Ark. Real Estate Comm., 244 Ark. 577, 426 S.W. 2d 412 (1968). Likewise, since the property was jointly owned by him and his partner, Steele, the act is not applicable to them.

We deem it unnecessary to discuss appellee’s alternative motion for a summary judgment.

Affirmed.

Byrd, J., not participating.


author: Otis H. Turner, Special Justice.

text:
    Sammy A. WEEMS and Doyle OWEN v. STATE of Arkansas
    75-147
    534 S.W. 2d 753
    Opinion delivered March 29, 1976

      Reinberger, Eilbott, Smith & Staten, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Terry R. Kirkpatrick, Asst. Atty. Gen., for appellee.
   Otis H. Turner, Special Justice.

This appeal is from a conviction of each of Appellants by a Prairie County Jury on charges of arson and conspiracy.

The transcript on this appeal is limited to proceedings transpiring after conclusion of all the evidence and Appellant asserts as error two narrow issues.

Trial of this cause began on June 16, 1975, and sometime in late afternoon on June 19, the case was submitted to the jury. Being unable to reach a verdict, Court was recessed until the morning of June 20th. The jury retired on that morning to resume its deliberation and after some three hours, reported deadlocked at 10-2, with no indication whether the numerical majority was for conviction or acquittal.

After recess for lunch and prior to resumption of deliberation, the following exchange occurred between the Court, the Foreman of the jury and Counsel for defendants:

“FOREMAN: Sir, what are the penalties for arson?
THE COURT: . . . Not less than one and no more than ten years. Would Counsel approach the bench? (at Bench and out of hearing of jury) would you like me to instruct them that while the Court is not bound to follow the recommendations, that should they return a verdict, they can recommend anything thay want to by interlineation?
COUNSEL: . . . Alright.
THE COURT: . . . Do you want me to, at the same time, instruct them that, if they agree on guilt and cannot agree on punishment, the Court will receive such a verdict?
COUNSEL: I don’t want you to.
THE COURT: I kinda thought you wouldn’t, (to Jury) It has been agreed by Counsel that the Court might instruct you to this effect. While the Court is not bound to follow a recommendation that a jury makes, the jury does have the right, if you choose, to make any recommendation that you want to on a verdict form, simply by interlining anything ... if you have any other questions, we can take them up now.
FOREMAN: We are not bound to that are we, to fill in the years, number of years in the penalty?
THE COURT: Now will Counsel approach the bench? (at bench) There isn’t but one way to answer that question and I didn’t invite it.
COUNSEL: No, but I am going to have to object if you answer it.
THE COURT: . . . Overrule, (to Jury) The answer to your question is this: Under the law, in the State of Arkansas, if a jury cannot agree on a punishment but can agree on guilt, a trial Judge may receive such a verdict and then he fixes the punishment . . .
FOREMAN: if we fix the penalty, is that to be unanimous, too?
THE COURT: Right ...”

After some three hours of further deliberation, the jury returned a verdict of guilt as to both defendants, without recommendation as to punishment.

This instruction by the trial Court at a time prior to a finding of guilty by the jury, and over timely objection, constitutes reversible error.

The Arkansas Statute on this point provides that “When a jury find a verdict of guilty, and fail to agree on the punishment to be inflicted . . . the Court shall assess and declare the punishment . . . ”. Ark. Stat. Ann. Sec. 43-2306.

In considering when it would be proper to so instruct the jury, this Court, in Ward v. State, 236 Ark. 878, 370 S.W. 2d 425, 426 (1963), laid down the following rule while holding that submission otherwise would be error:

“Thus, it appears, we have not previously announced any required rule in this regard to guide the trial Courts. After careful consideration, we now hold that the jury should not be told initially they can let the Court impose the punishment but should be told only after they report they have reached a verdict of guilty but are unable to agree on the punishment to be imposed.”

Since a reversal is dictated by the untimely giving of the instruction, it is not necessary to consider Appellants ’ second point for reversal.

The judgment is reversed and the cause remanded.

Holt, J., not participating.


author: J. Fred Jones, Justice.

text:
    Jay C. WILSON et al v. Floydena M. TALBERT et al
    75-327
    535 S.W. 2d 807
    Opinion delivered April 5, 1976
    [Rehearing denied May 17, 1976.]

      Keith, Clegg & Eckert, for appellants.

      McKay, Chandler & Choate, for appellees.
   J. Fred Jones, Justice.

This is an appeal from a chancery court decree canceling an oil and gas lease. The appellee Talbert owned an undivided three-fourths mineral interest and Mrs. Haltom owned the other one-fourth interest in a tract of land in Ouachita County and they executed separate leases to the appellants covering their respective interests. The primary term of the Talbert lease was two years and that of the Haltom lease was three years. The leases were executed in 1964 and 1965 and an oil producing well was drilled by the appellants. The well continued to produce and royalties were paid under the lease contracts until in March, 1974, when a leak developed in the bottom of one of the appellants ’ 500 barrel storage tanks and production from the well was discontinued.

The Haltom lease simply provided that it would remain in force for a term of three years from its date and as long thereafter as oil and gas, or either of them, was produced from the land by the lessee. The pertinent provisions of the Talbert lease provided as follows:

“Subject to the other provisions herein contained, this lease shall remain in force for a term of two (2) years from this date (herein called ‘primary term’) and as long thereafter as oil and gas, or either of them, is produced from said leased premises or drilling operations are continuously prosecuted as hereinafter provided. ‘Drilling operations ’ includes operations for the drilling of a new well, the reworking, deepening or plugging back of a well or hole or other operations conducted in an effort to obtain or re-establish production or oil or gas; and drilling operations shall be considered to be ‘continuously prosecuted’ if not more than 60 days shall elapse between the completion or abandonment of one well or hole and the commencement of drilling operations on another well or hole. If, after the expiration of the primary term of this lease, oil or gas is not being produced from the leased premises but lessee is then engaged in drilling operations, this lease shall continue in force so long as drilling operations are continuously prosecuted; and if production of oil or gas results from any such drilling operations, this lease shall continue in force so long as oil or gas shall be produced from the leased premises. If, after the expiration of the primary term of this lease, production on the leased premises should cease, this lease shall not terminate if lessee is then prosecuting drilling operations, or within 60 days after each such cessation of production commences drilling operations, and this lease shall remain in force so long as such operations are continuously prosecuted, and if production results therefrom, then as long thereafter as oil or gas is produced from the leased premises.”

The so-called force majeure clause in the Talbert lease reads as follows:

“All express and implied covenants of this lease shall be subject to all applicable laws, government orders, rules and regulations. This lease shall not be terminated in whole or in part, nor lessee held liable in damages because of a temporary cessation of production or of drilling operations due to breakdown of equipment or due to the repairing of a well or wells, or because of failure to comply with any of the express or implied covenants of this lease if such failure is the result of the exercise of governmental authority, war, lack of market, act of God, strike, fire, explosion, flood or any other cause reasonably beyond the control of lessee.”

On September 23, 1974, Talbert filed petition for cancellation of the lease as a cloud on his title. He alleged that there had been no production from the lease since March, 1974, and no royalty paid since February, 1974; that the lease had expired and had not been renewed. He alleged that he had made demand for release under Ark. Stat. Ann. § 53-313 (Repl. 1971); that his demand had been ignored; that the lease constituted a cloud on his title and he prayed that his title be quieted. By amendment to Talbert’s petition, Haltom prayed the same relief as to her undivided one-fourth interest.

The appellants filed answer and counterclaim denying that the lease had expired. They alleged the rupture in a storage tank and the difficulties encountered in repairing it as the reason for cessation of production. They alleged that when they sought entry to the premises in July, 1974, in an attempt to repair the tank, that Talbert refused them permission to enter; that his conduct estopped him from enforcing a forfeiture and that they were damaged in the amount of more than $1,000 per month because of such refusal. They prayed for a restraining order and for damages.

On October 30, 1974, the chancellor entered a temporary restraining order permitting the appellants to enter the premises for repair of the tank and to restore production and, following a hearing on the merits, the chancellor rendered a letter-form memorandum opinion reciting in part as follows:

“It is clearly stated in the Talbert lease that after the expiration of the primary term if the lease is not producing and within sixty days after cessation of production the lessee does not ‘commence drilling operations’ the lease terminates by its own terms. The attorneys cited no Arkansas cases construing.this provision in a lease and I have found none, however, I have found several cases from other jurisdictions construing similar provisions. These cases hold that the leases terminated by their own terms at the end of the stated period of time. McQueen v. Sun Oil Company, et al, 213 F. 2d 889 (Ky. 1954); Haby v. Stanolind Oil and Gas Company, 228 F. 2d 298 (Tex. 1955); Loeffler v. King, 228 S.W. 2d 201 (Tex. 1950); Francis et al v. Pritchett et al, 278 S.W. 2d 288 (Tex. 1955). Also see House et al v. Tidewater Oil Company, et al, 219 So. 2d 616 (La. 1969).
The Haltom lease does not have a sixty days provision but is for a term of three years and as long thereafter as oil and gas is produced. The Supreme Court of Arkansas considered a similar question in the case of Reynolds v. McNeill, 218 Ark. 453, 236 S.W. 2d 723 (1951). * * * The Supreme Court stated than when a lessee’s estate has vested it does not automatically terminate upon the temporary cessation of production, and that most authorities allow the lessee a reasonable time within which to reinstate paying production. The Court has not stated the number of days that constitutes a reasonable time, but has stated that it depends on the facts and circumstances in each case. In my opinion the lessees in this case did attempt within a reasonable time to reinstate paying production, and the Haltom lease should not be terminated.”

The chancellor entered a decree in accordance with his findings and ordered an accounting for oil produced under the Talbert lease after its termination. There is no appeal from the chancellor’s decree as to the Haltom lease but as to the Talbert lease, the appellants contend that the chancellor “erred in declaring a forfeiture of the Talbert lease under the 60-day clause.”

The appellants argue that since the chancellor found the cessation of production was of such temporary nature and reasonable effort to reinstate production sufficient to prolong or keep in force the Haltom lease, the question on this appeal is narrowed to,

“(1) whether the language of the force majeure clause prevented the lease from terminating because of the temporary cessation of production due to the breakdown of equipment; if not, (2) whether the 60-day clause contained in the Talbert lease should be construed as dealing with a production cessation of a temporary nature as here involved; and, in any event, (3) whether the efforts to restore production complied with the provisions of the 60-day clause.”

As we interpret the first above provision of the lease which twice contains the so-called “60-day clause,” it refers to cessation of production because of depletion or threatened depletion of the well or wells rather than a temporary cessation because of such things as temporary lack of storage facilities. The wording of this provision is somewhat ambiguous but it evidently refers to a threatened permanent cessation which can be averted only by extensive measures such as the drilling of a new well or the reworking or deepening or plugging back of an existing well.

As we interpret the “force majeure clause,” it applies to temporary cessation of production as a result of causes beyond the control of lessee such as the ones therein set out. In this provision the parties fixed no minimum time, such as 60 days, in which to reinstate production because, obviously, the nature and extent of the breakdown, or cause of cessation or production, would govern the time required for making the necessary repairs or eliminating the cause of cessation of production. The length of such necessary time, in the absence of agreement to the contrary, could only be measured by such time as would be reasonable under the facts and circumstances of the particular case.

The appellants argue that “the question on this appeal is narrowed to whether the language of the force majeure clause prevented the lease from terminating because of the temporary cessation of production due to the breakdown of equipment. ” It is our view, however, that the question, under the force majeure clause, is narrowed to whether the time involved in making the necessary repairs and restoring production was reasonable under the facts and circumstances of this case and, upon review of the evidence de novo, we conclude that it was not.

The rupture in the tank bottom occurred in March and apparently there was no effort made to repair it until July. Furthermore, there was evidence to the effect that another storage tank stood adjacent to the damaged one and that it could have been utilized by simply opening or closing valves, following minor repairs.

The rule is well established that on trial de novo in chancery cases, the chancellor’s decree will be affirmed if it appears to be correct upon the record as a whole, even though the chancellor may have given the wrong reason for his conclusion. Morgan v. Downs, 245 Ark. 328, 432 S.W. 2d 454 (1968); James v. Medford, 256 Ark. 1002, 512 S.W. 2d 545 (1974).

The decree is affirmed.

      oth Mr. and Mrs. Talbert were parties but will be referred to in the singular.


author: Conley Byrd, Justice. Carleton Harris, Chief Justice,

text:
    CONTINENTAL INSURANCE COMPANY v. David A. HODGES and Kaneaster HODGES Jr.
    75-340
    534 S.W. 2d 764
    Opinion delivered April 5, 1976

      Barrett, Wheatley, Smith & Deacon, for appellant.

      George Proctor, for appellees.
   Conley Byrd, Justice.

The sole issue on this appeal by Continental Insurance Company is whether, under the terms of a liability insurance policy, it is obligated to defend appellees David A. Hodges and Kaneaster Hodges, Jr. in an action brought against them for allegedly casting surface water upon their neighbor’s property.

The policy provides:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage
to which this insurance applies, caused by an occurrence, ...”

The word “occurrence” is defined in the policy as:

“An accident . . . which results ... in property damage neither expected nor intended from the standpoint of the insured.”

The chancery court action brought by Glen Odgien, et al, against appellees alleges that the appellees, and/or their tenants, have improved their property so as to greatly increase the total volume of surface water thereon by pumping water from beneath the surface for rice production; that this water was drained into a small drainage ditch crossing appellees’ land thereby casting the water in a body upon the lands belonging to Odgien, et al; that substantial damage was done to the growing crops of Odgien, et al; and that damages and a temporary injunction should be granted.

The term “accident” is not defined in the policy, but as pointed out in 44 Am. Jur. 2d Insurance § 1219 (1969), “The definition that has usually been adopted by the courts is that an accident is an event that takes place without one’s foresight or expectation — an event that proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected.” The cases relied upon by appellees generally support this statement. See City of Kimball v. St. Paul Fire & Marine Ins. Co., 190 Neb. 152, 206 N.W. 2d 632 (1973), Otterman v. Union Mutual Fire Ins. Co., 130 Vt. 636, 298 A. 2d 547 (1972), and Cross v. Zurich General Accident & Liability Ins. Co., 184 F. 2d 609 (7th Cir. 1950).

In the City of Kimball case, supra, by a vote of 4 to 3 the Nebraska Court upheld a finding that an accident was involved where the seepage of the sewage from the city’s lagoon occurred because of the negligence of the city’s employees in failing to discover some seismograph holes before the lagoon was built. Of course, under the complaint filed against appellees by Odglen no negligence is charged or suggested.

In the case of Otterman v. Union Mutual Fire Ins. Co., supra, one Kennedy, a man with a history of mental illness, during a tantrum, fired a shot into a dark room that passed through a wall and struck an officer in the next room. In upholding the trial court’s finding that the shooting was an occurrence under a policy identical to the one before us, the Vermont Court laid much stress upon the findings of the trial court that because of his mental illness Kennedy did not intentionally shoot the officer and that Kennedy did not know that the officer was in the house.

The case of Gross v. Zurich General Accident & Liability Ins. Co., supra, involved acid damages to windows that occurred during the cleaning of a building with acid. The undisputed proof showed that the insured used the customary method to protect the windows from the acid but that the damage occurred through the negligence of the insured’s employees in applying the customary method for protecting the windows. In holding that the damage claims were accidental within the terms of the policy, the court said:

“The basis for the decision of the trial court was that plaintiffs intentionally used hydrofluoric acid in the solution and failed to take the precaution of covering the windows with grease or heavy paper. But failure to take a proper or effective precaution does not prove intent to damage. Plaintiffs may have been negligent in not keeping sufficient water on the windows, but the very fact that water was applied to each window negatives any idea that plaintiff intended to damage same. And lacking such intent, the damage was accidental, even though caused by negligence.”

Under the allegations of Odglen’s complaint against appellees, the damages alleged could not have taken place without foresight or expectation and did not involve any negligence on the part of appellees. Nor can it be said that the damages alleged proceeded from an unknown cause or were an unusual effect of a known cause. Rather the complaint states that appellees, after pumping the water onto their lands for use in irrigating the rice crops, drained it into a ditch crossing their lands and cast it upon the lands of Odglen, et al [inferentially by gravity]. It follows that the trial court erred in holding that the appellees’ conduct constituted “an accident” within any reasonable definition of the word, see Proctor Seed & Feed Co. v. Hartford Ins., 253 Ark. 1105, 491 S.W. 2d 62 (1973).

Reversed and dismissed.

Harris, C.J., dissents.

Carleton Harris, Chief Justice,

dissenting. The basis for the majority holding appears to be that the Odglen complaint against Hodges does not explicitly allege that negligence caused the flooding. The majority opinion does not analyze this point, but merely states that “the damages alleged could not have taken place without foresight or expectation and did not involve any negligence on the part of appellees.” Yet nowhere in the Odglen complaint is it alleged that appellees acted willfully, i.e., that appellees knew that the drainage ditch was inadequate to remove the water without flooding adjacent land. Without such specific charges, it hardly seems reasonable to presume willfulness, as the majority does, since it is improbable appellees would, in my view, have deliberately inundated the adjoining fields. The record certainly contains no support for such a presumption.

The great weight of opinion with respect to exclusions such as the one at issue is that the insurer is obligated under the policy unless it is shown that the insured party intended not merely his act, but the injurious consequences of that act. The Pennsylvania Supreme Court summarized this rule in Eisenman v. Hornberger, 438 Pa. 46, 264 A. 2d 673:

. . . “[T]he vast majority of courts which have considered such a provision have reached the conclusion that before the insurer may validly disclaim liability, it must be shown that the insured intended by his act to produce the damage which did in fact occur. Annot. 2 A.L.R. 2d 1238 (1965). We subscribe to such a view. There is a very real distinction between intending an act and intending a result and the policy exclusion addresses itself quite clearly to the latter.”

In Grand River Lime Company v. Ohio Casualty Insurance Company, 32 Ohio App. 2d 178, 289 N.E. 2d 360, 200 residents had brought a class action against a nearby manufacturer, alleging damages from nuisance and trespass caused by emissions of industrial wastes and air pollution. The manufacturer then brought the Grand River suit against its insurer to compel the insurer to defend the class action. As in the instant case, the policy insured against damages caused by “occurrences,” the latter term defined elsewhere in the policy as an “accident.” The Ohio court held that the insurer was obligated to defend under the policy, stating:

“We adopt the argument as propounded by the plaintiff that the word ‘occurrence’ is much broader than the term ‘accident.’ Such proposition is well stated in Aerial Agriculture Service v. Till (N.D. Miss. 1962), 20-7 F. Supp. 50, 57:
‘To begin with, the word “occurrence,” to the lay mind, as well as to the judicial mind, has a meaning much broader than the word “accident.” As these words are generally understood, accident means something that must have come about or happened in a certain way, while occurrence means something that happened or came about in any way. Thus accident is a special type of occurrence, but occurrence goes beyond such special confines and, while including accident, it encompasses many other situations as well.’
“We further adopt the plaintiff’s proposition to the effect that while the activity which produced the alleged damage may be fully intended, and the residual results fully known, the damage itself may be completely unexpected and unintended.
“As an example, the plaintiff Grand River was certainly aware of its particular manufacturing activity, and was undoubtedly aware of the residual emission of smoke, dust, etc., but yet it is quite questionable whether Grand River expected or intended the damaging results to the property owners, at least in the sense that the policy uses such terms.”

Actually, I consider that some of the cases cited by the majority support my view, but at any rate, it is apparent that I would affirm the judgment of the trial court.

       While it has no probative value in the question before us, it is interesting to note that the trial court found for defendants (including appellees) in this case and dismissed the complaint of Odglen.


text:
    Gordon M. PELLERIN v. Kathryn Herring PELLERIN
    75-341
    534 S.W. 2d 767
    Opinion delivered April 5, 1976

      Lesly W. Mattingly, for appellant.

      Spitzberg, Mitchell & Hays, for appellee.
   Frank Holt, Justice.

This appeal results from an order of the chancellor dismissing appellant’s motion to quash garnishments of his income from his present employer and also his monthly retirement income from the United States government. The garnishments were issued to collect a $4,-640 judgment that was rendered by the chancellor in June, 1972, for child support arrearage. Appellant first contends that the chancellor erred in not applying the restrictions on garnishments found in 15 USC § 1673 (a) (1970). We cannot agree.

§ 1673 provides in pertinent part:

(b) The [garnishment] restrictions of subsection (a) of this section do not apply in the case of
(1) any order of any court for the support of any person.

Appellant argues that here there is no order, only a judgment for a debt due. He asserts an order and judgment are separate and distinct and, therefore, the exception under § 1673 (b) (1) does not apply. The legislative history of § 1673 appears to the contrary. In pertinent part, it provides:

The restrictions on garnishment provided for in the bill does not apply to any debt due to a court order for the support of any person (domestic relations cases) or for State or Federal taxes. (U. S. Code Congressional and Administrative News. (1968) P. 1978.)

If the exception in subsection (b) (1), supra, was restricted to a mere order and not a judgment, it would render that subsection meaningless. There can be no garnishment on a support order that has not been reduced to a judgment. Cf. Brun v. Rembert, 227 Ark. 241, 297 S.W. 2d 940 (1957). We hold that, in the case at bar, the judgment, based upon a court order for child support arrearage, comes within the exception in § 1673 (b) (1) and the chancellor was, therefore, correct in holding that the limitations of § 1673 (a) were not applicable.

Appellant next asserts that the chancellor erred in applying the provisions of 42 USC § 659 (Supp. 1974) to a judgment entered on June 22, 1972. § 659 provides:

CONSENT BY UNITED STATES TO GARNISHMENT AND SIMILAR PROCEEDINGS FOR ENFORCEMENT OF CHILD SUPPORT AND ALIMONY OBLIGATIONS
Notwithstanding any other provisions of law, effective January 1, 1975, moneys (the entitlement of which is based upon remuneration for employment) due from, or payable by, the United States (including any agency or instrumentality thereof and any wholly owned Federal corporation) to any individual, including members of the armed services, shall be subject, in like manner and to the same extent as if the United States were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make [money] payments.

The lower court applies this act to allow garnishment of appellant’s retirement income from the United States Air Force. Appellant’s position is that to permit garnishment of his income based upon a 1972 judgment is to give § 659 a retroactive effect. We do not read this statute to mean, as appellant contends, that it does not apply to judgments rendered before January 1, 1975. By the provisions of this act the shielding cloak of sovereign immunity to garnishment proceedings was merely removed.

Affirmed.


author: Frank Holt, Justice. John A. Fogleman, Justice,

text:
    Virgil WILLIAMS v. STATE of Arkansas
    CR 75-208
    534 S.W. 2d 760
    Opinion delivered April 5, 1976

      Bill E. Ross, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Terry Kirkpatrick, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of the crime of escape and his punishment assessed at three years in the Arkansas Department of Correction. Ark. Stat. Ann. § 41-3513 (Supp. 1973).

About five hours after a robbery occurred in Mississippi County, a Crittenden County police officer heard a police radio bulletin which gave a description of the robbers. At that time he had just arrested the appellant and two other individuals on a local law violation and had them in jail. Since they fit the broadcast description, the Mississippi County authorities were so notified. These officials promptly came to Crittenden County and interrogated appellant and his confederates during the day. One of them admitted participation in the robbery and implicated appellant. The Mississippi County officials placed appellant under arrest and asked the Crittenden County authorities to hold him pending the disposition of their local charges. The next day, however, (Monday) the Crittenden County authorities notified the Mississippi County officials that appellant would be released to them subject to a detainer. That same day the appellant and his codefendants were released to the Mississippi County officials and transported by them to their county jail where they were docketed with robbery and incarcerated. Four days later, the appellant and others escaped from the jail.

Appellant first contends for reversal of his escape conviction that the “trial court erred in holding that appellant was under lawful arrest at the time of his alleged escape.” Appellant’s argument, in effect, is that the evidence is insufficient to establish that he was under lawful arrest at the time of his alleged escape.

In defining the crime of escape, we recently said “ [Tjhe crime is committed by a prisoner under lawful arrest and restraint when he goes away from his place of lawful custody before he is released or delivered by due course of law.” Cassady v. State, 247 Ark. 690, 447 S.W. 2d 144 (1969). We later said:

The lawfulness of the imprisonment or custody from which the escape is made or attempted is the statutory essence of the criminal offense of escape or attempt to escape, and the lawfulness of the imprisonment or custody from which the escape is made or attempted must not only be alleged by the state in the-indictment or inforr mation, it must also be proved.

Harding & Hildebrandt v. State, 248 Ark. 1240, 455 S.W. 2d 695 (1970).

Appellant argues that a warrantless arrest by a sheriff outside his own county, as here, is of no more validity than that of a private citizen. Blevins v. State, 31 Ark.. 53 (1876). There we held that a sheriff could not validly serve a warrant outside his county. Therefore, appellant argues that since he was not taken into custody outside of the sheriff’s jurisdiction with a warrant, which is now permissible by Ark. Stat. Ann. § 43-411 (Repl. 1964), and not as a result of fresh pursuit, Ark. Stat. Ann. § 43-501 (Repl. 1964), his apprehension was unlawful in its inception. Consequently, he was not under lawful arrest and restraint at the time of his alleged escape from the Mississippi County jail.

We cannot agree. There existed substantial evidence from which a jury could find that the appellant was in lawful custody or detention at the time of his alleged escape. Admittedly, appellant was incarcerated and charged with robbery. There was evidence of a substantial nature that the Mississippi County authorities had reasonable grounds or probable cause for the arrest and detention of appellant on a robbery charge. In Stallings v. Splain, 253 U.S. 339 (1920), appellant contended that he was entitled to habeas corpus relief inasmuch as his original arrest and detention were illegal. There it was said “[W]here it appears that sufficient ground for detention exists a prisoner will not be discharged for defects in the original arrest or commitment.” See also Nishimura Ekiu v. United States, 142 U.S. 651 (1892). In the case at bar, as indicated, there is evidence from which the trier of the facts could find sufficient grounds that appellant was in lawful detention or custody at the time of his alleged escape. Certainly, the illegality of appellant’s arrest, as asserted here, would not affect or oust the trial court of jurisdiction to try appellant for the alleged robbery for which he was being held.

However, we agree with appellant’s contention that it was error for the court to hold, as a matter of law, that appellant’s arrest was lawful and, therefore, did not constitute a fact issue for the jury. This was in effect a directed verdict on a factual issue which is a requisite element of the alleged offense. As we said in Harding v. State, supra, the lawfulness of appellant’s imprisonment or custody constitutes an essential statutory element of the criminal offense of escape which must be alleged and proved. There we reiterated that “[T]he burden rests on the state to prove its allegations against the appellants, and does not lie on the appellants to disprove the allegations made by the state.”

Because of the error indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.

Fogleman, Smith and Roy, JJ., concur.

John A. Fogleman, Justice,

concurring. I concur in the result; however, I do not think that the majority’s attempted graft into the law of escape can survive. The authorities cited for the highly novel approach to this matter are simply inapposite. Neither involves a charge of escape.

The principal authority, Stallings v. Splain, 253 U.S. 339, 40 S. Ct. 537, 64 L. Ed. 940 (1920), resembles this case in only one aspect, i.e., the original arrest was made without a warrant. The prisoner had been indicted in the United States District Court for the District of Wyoming. He was arrested in the District of Columbia by Splain, the marshal for the District of Columbia, not upon a warrant issued by a commissioner for the District of Columbia, but upon a bench warrant issued from the Wyoming court to the marshal of the Wyoming district on the indictment there. Stallings, the prisoner, filed a petition for habeas corpus, alleging that his arrest and detention were illegal, and was admitted to bail. While he was at large on bail awaiting a hearing on his petition, a warrant was issued for him on the offense charged in Wyoming. At the hearing, certified copies of the indictment and other papers were filed. The United States Supreme Court held that the original arrest and detention were lawful, either upon the bench warrant or upon the marshal’s reliance upon it as evidence of reasonable cause that Stallings had committed a felony. As a secondary basis for its holding, the Supreme Court held that the pendency of the habeas corpus proceeding did not deprive the commissioner before whom it was pending of jurisdiction to entertain an application for arrest on the affidavit of complaint by the marshal. The court, in dictum, held that, even if the original arrest had been illegal, Stallings would not have been entitled to discharge, if, before final hearing, in the habeas corpus proceedings, legal cause for detaining him had arisen through the institution of removal proceedings. As a third ground, the court held that when Stallings was admitted to bail on the Wyoming charge at his own request, his position was no better than it would have been if his petition for habeas corpus had been made after he had given bail to answer the charge in Wyoming. The court said that his giving this bail rendered the legality of his original arrest and detention immaterial.

I have puzzled over the possible application of that case to the present one. I can find only one possibility. If a warrant for Williams’ arrest had been issued and executed before the alleged escape, his arrest and detention at the time of the escape would have been legal and the legality of the original arrest immaterial.

In the second authority, Nishimura v. U.S., 142 U.S. 651, 12 S. Ct. 336, 35 L. Ed. 1146 (1892), a subject of the Emperor of Japan sued out habeas corpus alleging that she had been illegally restrained of her liberty upon the ground that she should not be permitted to land in the United States. The authorities had refused to allow her to land on the basis that she was an illegal alien immigrant. The Japanese subject was held by direction of the customs authorities under the provisions of the immigration laws. She was originally held by the commissioner of immigration of the State of California, who claimed to act under instructions of, and contract with, the Secretary of the Treasury of the United States. While the petition for habeas corpus was pending, an inspector of immigration for San Francisco was appointed by the Secretary of the Treasury. He made an inspection and examination, made a report similar to that of the state commissioner, intervened in the habeas corpus proceeding, and insisted that his action was reviewable only by the superintendent of immigration and the Secretary of the Treasury. The Supreme Court of the United States agreed with the inspector of immigration that the finding of fact by the officers of the executive branch was final and binding on the courts. The court found it unnecessary to determine whether the original detention by the state commissioner was invalid because of an implied repeal of the act under which he acted, due to the fact that the validity of her continued detention depended upon the subsequent acts of the federal inspector of immigration, which the court found to be valid. Here again, the only possible application of this authority to the case at bench, would depend upon the intervention of the service oi a warrant for the arrest of Williams prior to his escape.

The principles espoused by those authorities relied upon by the majority are sound, but not compatible with the law defining the crime of escape. That law requires that ,the detention be legal at the time of the escape and, in the circumstances of this case, the legality of the detention is dependent upon the legality of the arrest, not upon the sanitization of an illegal one. Time does not permit an elaboration upon all the elements of the offense of escape or its history. The basic fundamentals are capsuled in a section entitled “Validity of Arrest,” 27 Am. Jur. 2d 854, Arrest, § 8, viz:

In prosecutions for escape from the custody of an arresting officer prior to actual imprisonment, the escape has been held justifiable where the officer acted without authority so that the arrest was illegal. The invalidity of an arrest may also vitiate subsequent proceedings so that an escape from prison is justified. A person illegally arrested is entitled to resist any unlawful interference with his right of personal liberty and may use whatever force is reasonably necessary to do so. When an officer without authority to arrest a person attempts nevertheless to arrest him, the officer is to be regarded as a trespasser without any right to prevent the escape of the person whom he has thus accosted. It is no crime for one, without the use of violence, to rescue or assist in the rescue of another v/ho has been unlawfully arrested. However, a mere informality or irregularity in the arrest is no justification for a prisoner’s escaping from jail, as where, for example, a defendant is held on a bench warrant, substantially sufficient, although irregularly issued.

There is no doubt in my mind, however, that there was convincing evidence that the arrest was legal in this case. The state contends, and I agree, that the evidence shows that appellant was in custody by reason of a valid citizen’s arrest by a peace officer. The overwhelming weight of authority sustains the validity of a warrantless arrest by a peace officer in the capacity of a private citizen, outside the geographical subdivision of the state in which he is an officer. State v. Goldberg, 540 P. 2d 674 (Ariz. 1975); Nash v. State, 207 So. 2d 104 (Miss. 1968); Brown v. State, 217 So. 2d 521 (Miss. 1969); United States v. Kriz, 301 F. Supp. 1329 (D. Minn. 1969); United States v. Montos, 421 F. 2d 215 (5th Cir., 1970); State v. Jones, 263 La. 164, 267 So. 2d 559 (1971), cert. den. 410 U.S. 946; State v. Fritz, 490 S.W. 2d 30 (Mo. 1973), cert. den. 411 U.S. 985; Marden v. State, 203 So. 2d 638 (Dist. Ct. App. Fla. 1967); State v. McCullar, 110 Ariz. 427, 520 P. 2d 299 (1974); United States v. DeCatur, 430 F. 2d 365 (9th Cir., 1970); and Wion v. United States, 325 F. 2d 420 (10th Cir., 1963), cert. den, 377 U.S. 946, 84 S. Ct. 1354, 12 L. Ed. 2d 309, same case, Union v. Wellington, 252 F. Supp. 306 (D.C. Col., 1965).

In this case the sheriff of Mississippi County, knowing that a felony had been committed in Mississippi County by someone, had gone to Crittenden County in a purely investigatory role. While there, the confession of one of the perpetrators of the crime, incriminating Williams and another, revealed probable cause for Williams’ arrest, i.e., reasonable grounds for believing that he had committed the felony. This evidence was certainly sufficient basis to justify the sheriff, a peace officer, acting in the capacity of a private citizen, to make an arrest, which the sheriff promptly did. It was not only his right but his duty to do so. See State v. Jones, 91 Ark. 5, 120 S.W. 154; Carr v. State, 43 Ark. 99. He would have been derelict in his duty had he not done so. See Russell v. State, 240 Ark. 97, 398 S.W. 2d 213.

This is not to say, however, that a private citizen who, knowing that a felony has been committed in the county where he resides, may undertake to make an arrest without a warrant in a county other than his own when he is not in fresh pursuit of a felon. The dangers inherent in such a practice are aptly enunciated in McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79 (1906), where the following caveat was issued:

.....[W]e deem it proper to say that we do not think it was within the contemplation of our statutes that private citizens of one county should take it upon themselves to go into other counties, without a warrant, in search of criminals, except in cases of fresh pursuit of a fleeing felon endeavoring to avoid immediate capture, in an original arrest, or on immediate pursuit after arrest and escape. An opposite view and practice would lead to more violence than it would suppress, since it would foster the incursion of roving bands of strangers who might be easily counterfeited by bands of marauders.

I agree that the trial court erred in not submitting the question of legality of the detention of Williams to the jury.

I am authorized to state that Mr. Justice George Rose Smith and Madam Justice Roy join in this opinion.