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Steele Hays, Justice.
This products liability case involves three irrigation pumps consisting of components manufactured by Berkeley Pump Company, appellant, and assembled and installed by Riceland Machine and Supply Corporation and S & W Well Drilling and Irrigation Corporation, appellees. The pumps were purchased in 1978 from Riceland by J. B. Joseph and Clark Reed, appellees, to supply irrigation to Reed-Joseph’s rice and soybean crops on lands along the Red River in Miller County. In addition to relying on the pumps for their own irrigation needs, Reed-Joseph contracted with Agri-Vestors Corporation, appellee, to supply water for Agri-Vestors’ rice crop.
A few years earlier, Reed-Joseph had purchased a pumping system from Riceland with components supplied by Berkeley consisting of three slant-mounted pumping units having a combined capacity of 30,000 gallons per minute. Wanting an increase in capacity, and relying on performance curves published by Berkeley, Reed-Joseph elected to purchase three new Berkeley impellers which were expected to produce 36,000 gallons per minute. The system, installed in April, 1978, performed inadequately, resulting in drought damage to the crops of Reed-Joseph and Agri-Vestors, and springing this litigation.
Riceland initiated this action by suing Reed-Joseph for the value of the pumps and equipment. Reed-Joseph counterclaimed for damages for its crop losses on counts of strict liability, breach of express and implied warranties, negligence and fraud. Riceland brought Berkeley in by third-party complaint seeking contribution and indemnity and tendering to Berkeley the defense of the Reed-Joseph claims. Agri-Vestors intervened seeking recovery for its losses.
The case was submitted to the jury on all theories and a verdict of $684,753.42 was awarded Reed-Joseph. Riceland was awarded judgment of $134,039.15 and indemnified against Berkeley as to any money recovered by Reed-Joseph and Agri-Vestors with responsibility for the total fault apportioned by the jury at 90% to Berkeley, 10% to Riceland. Riceland was granted full indemnification from Berkeley and awarded $134,039.15 as expenses incurred in defending the litigation. Reed-Joseph was also awarded $15,698.15 and prejudgment interest of $126,081.20. Riceland was given judgment against Reed-Joseph for $32,407.22 plus prejudgment interest of $5,833.30.
On appeal, Berkeley alleges numerous errors, some of which must be sustained. It is urged that there was no breach of warranty for a particular purpose as there was no evidence that any particular purpose was communicated to Berkeley; that it was error to submit the case to the jury on the issue of strict liability and on the issue of fraud; that the court should not have awarded Reed-Joseph $15,698.15 and prejudgment interest, nor should it have indemnified Riceland and allowed it to recover the costs of defense.
Riceland argues on cross-appeal that prejudgment interest should not have been awarded to Reed-Joseph and, in the event of reversal, that the jury should not have been instructed with respect to breach of an express warranty because any such warranties were negated by Reed-Joseph’s failure to comply with certain conditions of warranty; that there was no evidence that Riceland knew of any particular purpose intended for the pumps and the jury should not have been instructed on the issue of a breach of warranty of fitness for a particular purpose.
I
We first consider what we regard as the pivotal point, whether under the evidence it was appropriate to submit the issue of strict liability to the jury.
After the immunity of manufacturers to all but the original purchaser was destroyed by MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) the progress of products liability was gradual but deliberate. Producers of food and beverages experienced the first exposure and other manufacturers followed. In 1960 the Supreme Court of New Jersey applied strict liability to the user of a defective automobile, though wholly on the basis of an implied warranty. See Henningsen v. Bloomfield Motor Company, 32 N.J. 358, 161 A.2d 69 (1960).
In 1965, decisions were reached in two significant cases: in February the New Jersey Supreme Court handed down Santor v. A. and M. Karagheusiam, Inc., 44 N.J. 52, 207 A. 2d 305 (1965), upholding a recovery of an economic loss by a consumer against the manufacturer of a defective rug, recognizing a cause of action in tort, independent of fault or warranty. Justice Francis described the cause as hybrid in character, “having its commencement in contract and its termination in tort.” A few months later the Supreme Court of California, through Chief Justice Traylor, rejected the reasoning of Santor, saying “only if someone had been injured because the rug was unsafe for use would there have been any basis for imposing strict liability in tort.” Seely v. White Motor Company, 63 Cal. 2d 9, 403 P.2d 145, 45 Cal. Rptr. 17 (1965). The opinion points out that the tentative draft of 402A, Restatement of Torts (Second) limits recovery in strict liability to physical harm to persons or property.
That same year 402A was formally adopted by the American Law Institute, providing that one who sells “any product in a defective condition unreasonably dangerous to the user or consumer or to his property” is strictly liable. With the approval of 402A, strict liability “swept the country,” JProsser, The Law of Torts, § 98 at p. 567-8 (4th Edition 1971)] and within a decade all but a few jurisdictions had embraced the concept (Berman v. Watergate West, Inc., 391 A.2d 1351 [D.C. 1978]).
In Arkansas the change from fault to strict liability was legislative rather than j udicial, with the adoption of Act 111 of 1973, which provides for strict liability by suppliers of a product “in a defective condition which rendered it unreasonably dangerous.” (Ark. Stat. Ann. § 85-2-318.2). While our act is “substantially verbatim” to 402A (See Woods, Products Liability: Is Comparative Fault Winning the Day1 36 Arkansas Law Review, No. 3, p. 360, at 364), Act 111 broadened the scope of strict liability in two important respects: by substituting “supplier” for “seller” and injury to “persons and property” for “users” or “consumers.” More recently, the legislature enacted the. “Arkansas Products Liability Act of 1979” (Act. No. 511) (Ark. Stat. Ann. §§ 34-2801 — 34-2807 [Repl. 1962]), which makes no substantive changes, but simply codifies certain precepts and evidentiary rules affecting strict liability. (Powell, Survey of Torts, 3 UALR Law Journal 316.)
With that báckground, we turn to Berkeley’s arguments. It contends that strict liability is not applicable: one, where the product, in spite of any defective condition, does not constitute an unreasonable danger to persons or property; or two, in the absence of injury to persons, such defect causes purely economic loss.
We addressed the issue of economic loss only recently in Blagg v. Fred Hunt Co., Inc., 272 Ark. 185, 612 S.W.2d 321 (1981), where by dictum we opted in favor of the reasoning of Justice Francis in the Santor case. We see no need to review that choice. The other phase of the argument, i.e. that the product must be unreasonably dangerous, was not raised in Blagg and accordingly was not decided. Nor was it raised in another recent decision, Southern Company v. Graham, 271 Ark. 223, 607 S.W.2d 677 (1980). Thus, we have not yet considered to what extent a product in a defective condition must be “unreasonably dangerous” so as to render the supplier or manufacturer strictly liable.
We have little doubt that the language of 402A contemplates a type of defect which renders the product not merely inadequate, but one which poses an actual danger to persons or property. That is explicit in the language, “any product in a defective condition unreasonably dangerous”, and is said at least as plainly in our statute, which requires that the defective condition render the product unreasonably dangerous. We construe the wording as requiring a defect that renders the product not simply deficient but dangerous.
In spite of the clear language of 402A, some disagreement has developed over the terms “unreasonably dangerous” and “defective condition”. A few states have placed the emphasis on defectiveness. In Cronin v. J.B.E. Olson Corp., 8 Cal. 3d 121, 501 P.2d 1153, 104 Cal. Rptr. 433 (1972), the California Supreme Court refused to set aside a verdict for a consumer whose injuries were incurred when a defective safety hasp on a bread truck broke, allowing heavy trays of bread to slide forward into the driver. The result is understandable enough, as a defective hasp behind the driver’s seat of a bread truck readily suggests a danger within the scope of 402A. But the trial court had not instructed the jury that it must find the condition “unreasonably dangerous” as well as defective and the Supreme Court declined to reverse. Noting that strict liabilty was adopted in Cali fornia, not in the aftermath of 402A, but in advance of it, in the form of Greenman v. Yuba Power Company, 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1962), the Supreme Court reasoned that to require proof that a product is both defective and unreasonably dangerous imposes a greater burden on the plaintiff than was applied in Greenman. Thus, the court concluded that it was not bound by the unreasonably dangerous requirement of 402A because of that history. Cases following Cronin are Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978); Mandell v. Gulf Leasing Corp., 250 Pa. Super. 128, 378 A.2d 487 (1977); Glass v. Ford Motor Co., 123 N.J. Super. 599, 304 A.2d 562 (1973); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975).
In Arkansas, however, Model Jury Instructions have contained instructions drafted in response to our strict liability act since their approval in 1973. AMI 1008 and AMI 1012 tell the jury that a plaintiff must prove, among other things, that the product was supplied in a defective condition which rendered it unreasonably dangerous, and the defective condition was a proximate cause of the damage. We believe it was not the intent of 402A to make manufacturers insurers of their products, irrespective of danger, fault or warranty, and going beyond foreseeable consequences, and hence to apply strict liability simply on the basis of a finding of “defective condition” widens the scope of 402A considerably. [See Suvada v. White Motor Co., 32 Ill. 2d 612, 210 N.E.2d 182 (1965)]. This is the majority view and is consistent with the views of Dean John W. Wade, who participated in the formulation of 402A. He explains that strict liability under the Restatement “is not to be imposed unless [the defect] makes the product unreasonably dangerous”.
The only real problem is whether the product is “unreasonably dangerous,” because “defective condition”, if it is to be applied at all, depends on that. Strict liability is appropriate for these cases, and it would be better in them not to refer to any requirement of defectiveness. As a matter of fact, even in the first type of cases in which the article was defective because of something that went wrong in the manufacturing process, the true problem in the end is whether that defect makes the product unreasonably dangerous. (Our italics.) (“Strict Tort Liability of Manufacturers”, 19 Southwestern Law Journal 5, at p. 15.)
A majority of cases have taken a position counter to the result in Cronin: Ford Motor Company v. Lonon, 398 S.W.2d 240 (Tenn. 1966); Northern Power Co. v. Caterpiller, 623 P.2d 324 (Alaska, 1981); Vineyard v. Empire Machinery, 119 Ariz. 502, 581 P.2d 1152 (Ct. App. 1978) (expressly rejecting Cronin); Liberty Mutual v. Sears, 35 Conn. 687, 406 A.2d 1254 (1978); Texsun Feedyards Inc. v. Ralston Purina Co., 447 F.2d 660 (5th Cir. 1971) (feed supplement failed to increase weight of cattle, as intended. Strict liability held not to apply where product was not dangerous, simply ineffective). Kirkland v. General Motors, 521 P.2d 1353 (Okla. 1974); Brown v. Western Farmers Assn., 268 Or. 470, 521 P.2d 537 (1974); Heldt v. Nicholsen Manufacturing Company, 72 Wis. 2d 110, 240 N.W.2d 154 (1976); Medham v. White Laboratories, 639 F.2d 394 (7th Cir. 1981); Two Rivers v. Curtiss Breeding Co., 624 F.2d 1242 (5th Cir. 1980); Patthoff v. Alms, Clark Equipment Co., et al, 41 Colo. App. 51, 583 P.2d 309 (1978), (expressly rejecting Cronin as the minority view). Tenney v. Seven-Up Co., 92 N.M. 158, 584 P.2d 205 (Ct. App. 1978); Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69, 435 N.E.2d 443 (1982). See cases cited in 13 ALR 3d 1057 and in 63 Am. Jur. 2d § 132 p. 138.
Here, we can find no evidence that the defectiveness of Berkeley’s pumps rendered them dangerous — inadequate and dysfunctional, to be sure, but not dangerous. The pumps may have failed to produce the volume of water Reed-Joseph had a right to expect, but those are issues of warranty, negligence, or misrepresentation and do not render them unreasonably dangerous within the meaning of our act.
Reed-Joseph concedes the question to be whether there is sufficient evidence to sustain a finding that the irrigation pumps or parts were in a defective condition which rendered them unreasonably dangerous, but they cite nothing from the testimony or proof to enable us to confirm that this evidence exists. Their brief suggests that the sale of pumps by Berkeley “without adequate submergence data or without a warning that such data was available, made these pumps ‘defective’ and their use ‘unreasonably dangerous’ to the lands, crops and property” of Reed-Joseph. There are two answers to the argument: first, the fact that the pumps failed to produce water at a level desired or expected does not render them dangerous, at worst, merely useless. Moreover, the comments to 402A and our Act 511 define unreasonably dangerous as requiring something beyond that contemplated by the ordinary and reasonable buyer, taking into account any special knowledge of the buyer concerning the characteristics, propensities, risks, dangers, and proper and improper uses of the product. The likelihood that a pump might fail to produce an optimum volume of water on a sustained basis (whatever the river levels and conditions might be) could hardly be thought to be beyond the contemplation of a knowledgeable buyer, such as we have here. The testimony of Mr. Barthell Joseph makes it clear that he was thoroughly familiar with irrigation techniques and aware that pump performances varied, depending on a number of conditions. It would be too much to think that it was beyond his comprehension that a pumping system like this one might not produce the goal of 36,000 gallons per minute, and was, therefore, unreasonably dangerous. The evident fact is that Reed-Joseph watched the results of the new system closely, and Mr. Joseph testified that by May, 1978, soon after the new pumps were installed in April, it was apparent that the new system was not producing as much water as before. Second, the fact that the pumps failed to produce the volume of water expected is not a hidden, latent danger, but an obvious one, which carries no duty to warn. Rost v. C. F. 6-1. Steel Corp., _Mont. __, 616 P.2d 383 (1980); Jacobson v. Colorado Fuel and Iron Corp., 409 F.2d 1263 (9th Cir. 1969); Garrett v. Nissen Corp., 84 N.M. 16, 498 P.2d 1359 (1972).
We conclude that the pumps were not dangerous within the context of strict liability and it was error to submit that issue to the jury.
II
Berkeley insists the jury should not have been instructed with respect to breach of warranty of fitness for a particular purpose because there is no evidence to show that any particular purpose of Reed-Joseph was communicated to Berkeley. Instruction No. 26 explained to the jury the six theories on which the case was being submitted, i.e. strict liability, negligence, breach of an implied warranty of merchantability, implied warranty of fitness for a particular purpose, breach of an express warranty, and fraud.
Comment 2 to Ark. Stat. Ann. § 85-2-315 (Repl. 1961), Uniform Commercial Code, explains how a “particular purpose” may differ from an ordinary purpose:
A “particular purpose” differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question.
Berkeley argues that before a supplier can be held liable for a breach of warranty of fitness for a particular purpose, it must be shown the supplier knew that a particular purpose was intended by the consumer. Granted, but it is enough if the supplier is aware of the particular purpose a buyer has in mind and permits the buyer to make the purchase on the assumption that the goods are suitable for his needs. That was our holding in Delamar Motor Co. v. White, 249 Ark. 708, 460 S.W.2d 802 (1970). Nor must actual knowledge-be evidenced; it is enough that under all the circumstances the supplier has reason to realize the purpose intended or that the reliance exists. Lewis v. Mobil Oil Corporation, 438 F.2d 500 (8th Cir. 1971). Wilson v. Marquette Electronics, Inc., 630 F.2d 575 (8th Cir. 1980). We cannot say with certainty there was no evidence arising from the arrangements between Berkeley, as seller, either through Riceland, or direct with Reed-Joseph, as buyer, from which the jury could have inferred Berkeley’s awareness of the purpose intended for these pumping components.
Ill
Two closely related points are that a) the trial court should not have instructed the jury on the issue of fraud, because the evidence failed to show a misrepresentation and an intent by Berkeley to deceive; and b) it was error to give an instruction framed in terms of AMI 601 and 903, that a violation of Ark. Stat. Ann. § 70-904 (Repl. 1979), prohibiting the employment of any deception or the intentional concealment of a material fact in the sale or advertisement of goods, could be considered as evidence of negligence.
Our cases dealing with fraud state generally that fraud is never presumed. Hembey v. Cornelius, 182 Ark. 417, 31 S.W.2d 539 [1930]), and requires that one party intentionally induce the other party to rely on a representation he knows to be false or, not knowing, that he asserts to be true. [Welch v. Farber, 188 Ark. 693, 67 S.W.2d 588 (1934)].
Reed-Joseph concedes that there was no affirmative misrepresentation, rather, they argue, there was an intentional and positive concealment of material facts, though what was concealed is not spelled out in specific terms. They do cite a letter from Berkeley to Reed-Joseph containing information regarding the pumps but evidently this was furnished after the components were purchased by Riceland in 1978 and how the information is misleading, even in retrospect, is not made clear.
Reed-Joseph submits that Berkeley was in a fiduciary relationship, but we cannot agree with that assertion. Two early Arkansas cases are cited: McDonough v. Williams, 77 Ark. 261, 92 S.W. 783 (1905) and Gillespie and Wife v. Holland, 40 Ark. 28, 48 AmRep 1 (1882). Those cases are plainly distinguishable. In Gillespie, a youthful, inexperienced woman was overreached by an older brother who stood in loco parentis to her; in McDonough the decision describes intimate business dealings from which a confi dential relationship could be inferred. We find nothing comparable here.
Reed-Joseph quotes a familiar passage of law that there are times when the law imposes a duty to speak rather than remain silent, when a failure to speak is the equivalent of fraudulent concealment (37 Am Jur 2, Fraud and Deceit, § 146). But this rule is based on special circumstances not evident here, such as a confidential relationship, so that a duty to speak arises where one party knows another is relying on misinformation to his detriment. The general rule is to the contrary, and ordinarily, absent affirmative fraud, a party, in order to hold another liable in fraud (as opposed to breach of implied warranty, as in Delamar, supra), must seek out the information he desires and may not omit inquiry and examination and then complain that the other did not volunteer information. (See 37 Corpus Juris Secundum, Fraud, § 15, p. 242 and Smith, “Law of Fraud”, § 8 p. 18.) We find nothing in the abstract suggesting circumstances from which that rule of law might be found applicable. If fraud exists, whether affirmatively or by concealment, it ought not to be difficult to isolate and cite it. We conclude that the evidence of fraud was not sufficient to warrant submitting that issue to the jury.
Assuming at a second trial that fraud is established so as to constitute a submissible issue, we find no error in the instruction to the jury framed in terms of AMI 601 and 903. We have often said that violation of a statute is evidence a jury may consider in determining whether a defendant is guilty of negligence. Bridgforth v. Vandiver, 225 Ark. 702, 284 S.W.2d 623 (1955); Bussell v. Missouri Pacific Railroad Co., 237 Ark. 812, 376 S.W.2d 545 (1964). Moreover, our rule gives the defendant the benefit of the more favorable view, notwithstanding a majority view to the contrary [See Prosser, Law of Torts, at 200 (4th edition)], i.e. that such violation is merely evidence of negligence and not negligence per se. Here, the statutes were designed to protect the public from deceptive marketing and advertising practices and there is sound authority that such statutes imply a right of enforcement by civil action by persons injured by their breach. (Id. at § 36, p. 191.) We have upheld the giving of a comparable instruction to AMI 601 in civil litigation based on the violation of a criminal act. Rogers v. Stillman, 223 Ark. 779, 268 S.W.2d 614 (1954). Similar instructions have been upheld in consumer acts. See Sellinger v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 521 P.2d 1119 (1974); Rice v. Snarlin, Inc., 131 Ill. App. 3d 434, 266 N.E.2d 183 (1970); Young v. Joyce, 351 A. 2d 857 (Del. 1975).
IV
Berkeley’s argument that the trial court erred in augmenting the judgment awarded Reed-Joseph by the added sum of $15,698.18 in accordance with a stipulation between the parties is rendered moot by the remand of this case and may or may not be relevant to a second trial.
V
Berkeley’s argument that it was error to allow Reed-Joseph prejudgment interest of $126,081.29 is also rendered moot by this decision, but because the issue may confront the trial court on retrial, we need to consider it. While we have approved prejudgment interest on claims involving specific amounts or for the recovery of damages to property where values were susceptible of exact determination, it has been the rule in this state, and in most jurisdictions, that prejudgment interest is generally not recoverable where damages are inexact and uncertain. Lovell v. Marianna Federal Savings and Loan Association, 267 Ark. 164, 589 S.W.2d 577 (1979). There are exceptions, and no hard and fast rule has emerged.
Both sides cite Lovell, where we reversed and remanded an equity case for the allowance of prejudgment interest. The dispute was over a refusal by a savings and loan association to pay a certificate of deposit totalling $36,000.00. Noting that the CD’s had an exact value on the date payment was wrongfully refused, we ruled prejudgment interest should have been allowed. The Lovell opinion reviewed earlier decisions of this court in an attempt to reconcile conflicting cases and draws several conclusions: a) that the test of the recoverability of prejudgment interest is whether there is a method of determination of the value of the property at the time of the injury; b) where the damages cannot be ascertained at the time of the loss, prejudgment interest should not be allowed; c) where damages cannot be measured until some future date, as with personal injuries, prejudgment interest is not recoverable; d) if the damages are not by their nature capable of exact determination, both in time and amount, prejudgment interest is not an item of recovery.
Reed-Joseph asserts that because it carefully compiled production records of other crop yields in its farm system, which were not deprived of water, it was possible to show exact damages. The argument has some merit, in that it removes some of the uncertainty of crop damage claims, but that is only half the test, at best, as it is clear that for interest to attach, the loss must have occurred at a specific time. That was the case in Dickerson Construction Co. v. Dozier, 26b Ark. 345, 584 S.W.2d 36 (1979), where we allowed prejudgment interest for damage to "knee-high” soybeans totally destroyed by heavy rains within a forty-eight hour period, resulting from the defendants having wrongfully dammed a drainage ditch. Here, no matter how carefully comparable records were compiled, drought damage to crops because an irrigation system produced less water per minute than expected, results in losses that cannot be specifically determined as to time, certainly not during the growing season, as the damage is a gradual process brought on by the deprivation of a necessary element.
We note, too, that the damages alleged in Reed-Joseph’s pleadings were not exact amounts, but stated in broad terms typical of general damage claims: in the counterclaim against Riceland damages of $1,000,000.00 were claimed and by amendment against Berkeley, $750,000 (filed September 29,1980) for crop losses and additional sums for interest and coincidental expense.
Cases decided since Lovell have stressed the requirement of certainty as to time and amount. See Brown v. Summerlin Assoc., Inc., 272 Ark. 298, 614 S.W.2d 227 (1981); Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981) and Taylor v. Jones, 495 F.Supp. 1285 (E.D. Ark. 1980). In Wooten, we said:
Prejudgment interest is compensation for recoverable damages wrongfully withheld from the time of the loss until judgment. This interest must be allowed for any injury where, at the time of loss, damages are immediately ascertainable with reasonable certainty.
VI
Berkeley contends evidence of its financial condition should not have been introduced and we sustain the contention. Proof of financial condition where punitive damages are claimed is allowed as against a single defendant [Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961)]; however, we have held that because of the obvious prejudice that results when one of several defendants is singled out by the introduction of his financial condition, the right to make such proof is waived where there are two or more defendants. See Life and Casualty Insurance Co. v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966). We adhered to that principle in two recent decisions: Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982) and Curtis v. Partain, Judge, 272 Ark. 400, 614 S.W.2d 671 (1981). On retrial, evidence of Berkeley’s financial condition should not be received in evidence.
VII
Berkeley contends the court erred in refusing to give an instruction on intervening cause. However, the instruction is not abstracted and we have consistently held it is appellant’s duty to furnish us with an abridgement of the record, including the instructions, where appropriate, as will enable us to follow the arguments. Hurley v. Owens, 238 Ark. 874, 385 S.W.2d 636 (1965); Jacobs and Garrett v. Bentley, 86 Ark. 186, 110 S.W. 594 (1908); St. Louis, Iron Mountain and Southern Railroad Co. v. Boyles, 78 Ark. 374, 95 S.W. 783 (1906).
VIII
Another assertion by Berkeley is that it was error to award judgment in favor of Riceland for costs of defending the litigation and for any amounts recovered from Riceland by either Reed-Joseph or Agri-Vestors on the basis of indemnity. While these issues are mooted by our reversal, it should be said for the purposes of another trial the jury’s finding the plaintiff’s damage was the result of active fault by Riceland, which the jury apportioned at 10% by Riceland against 90% by Berkeley, renders the problem one of contribution, and not of indemnity. See Prosser, Law of Torts, 4th Edition, § 51 p. 310. If retrial should result in similar findings, Riceland would be entitled to contribution from Berkeley for any amounts recovered from it by Reed-Joseph in excess of Riceland’s portion of the fault, but Riceland would not be entitled to indemnity from Berkeley for any amounts paid in satisfaction of the judgment, nor for expenses incurred in connection with the litigation. We believe interrogatory No. 2, encompassed within the instruction labeled Court’s 3A, is overly broad and should not have been given.
Riceland argues on cross-appeal that it was error for the trial court to give instruction No. 26 on the theory of a breach of express warranties as it related to Riceland, because any express warranties were negated by Reed-Joseph’s failure to meet Riceland’s conditions of warranty. Riceland cites three Texas cases [Fetzer v. Haralson, 147 S.W. 290 (Tex. Civ. App. 1912), Londen v. Curlee, 336 S.W.2d 836 (Tex. Civ. App. 1960) and Elanco Products Co. v. Akin-Tunnell, 474 S.W.2d 789 (Tex. Civ. App. 1971), on appeal after remand, 516 S.W.2d 726], for the rule that a purchaser of goods covered by an express warranty, must show that he complied with any conditions to which the warranty was subject. But we think the court’s instruction No. 27 recognized that any express warranties made to Reed-Joseph may have been subject to certain conditions and told the jury, first, that it was Riceland’s burden to prove those conditions and if the jury so found, then it was Reed-Joseph’s burden to prove such conditions were satisfied. It would require an independent search of the testimony to determine the existence of evidence of compliance with conditions of warranty, and we are unwilling to do that where Riceland has omitted in the first instance to point to the evidence that such conditions were, in fact, imposed.
Riceland’s other argument, i.e. prejudgment interest and breach of warranty for a particular purpose, coincide with Berkeley’s points of error and have been dealt with earlier in this opinion.
Reversed and remanded.
Supplemental Opinion on Denial of Rehearing delivered July 18, 1983
1. Damages — punitive damages — proof of financial responsibility. — Although a plaintiff who claims punitive damages from several defendants waives theright to introduce evidence of the financial worth of one defendant, where punitive damages are claimed from only one of several defendants, that right to introduce evidence of financial condition is not waived when the alleged improper conduct is different from, and greater than, that of the other defendant.
2. Damages — proof of financial responsibility — admonition to jury. — If the evidence on retrial is sufficient to submit the issue of punitive damages to the jury, the plaintiff may introduce evidence of Berkeley’s financial condition, with the jury admonished to consider such evidence only in connection with the claim of punitive damages.
3. Damages — harmless error to submit punitive damage ISSUE TO JURY ON INSUFFICIENT EVIDENCE. — It ÍS usually harmless error to submit the issue of punitive damages to the jury where there is insufficient evidence to support such an instruction.
4. Damages — reversible error to submit issue of punitive DAMAGES TO JURY ON INSUFFICIENT EVIDENCE WHERE PROOF OF FINANCIAL CONDITION ALSO INTRODUCED. — If evidence OÍ financial condition is also introduced, then the error of submitting the issue of punitive damages to the jury absent sufficient proof becomes reversible because a verdict for compensatory damages is tainted by the improper evidence.
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Robert H. Dudley, Justice.
The issue in this case is whether the Gross Receipts Tax, Ark. Stat. Ann. § 84-1901, et seq. (Repl. 1980), applies to a sale when that sale is billed but the account is not collected.
Appellant, Little Rock Municipal Water Works, is a municipally owned and operated water works system. Appellee, the Commissioner of Revenues, levies a three percent tax upon the gross receipts derived from sales of water by appellant. Between October 1, 1976 and September 30, 1979, appellant did not include within its computation of gross receipts amounts it billed but had not collected for water service furnished to residents of the City of Little Rock and surrounding communities. Appellant was assessed a $2,130.38 deficiency in gross receipts tax and a “negligence penalty” by appellee. The trial court upheld the appellee’s assessment and the imposition of the negligence penalty. We affirm. Jurisdiction is in this Court pursuant to Rule 29 (1) (a) and (c) and Ark. Stat. Ann. § 84-4721 (b) (Repl. 1980).
We find no merit in appellant’s argument that “gross receipts” include only amounts actually collected. Ark. Stat. Ann. § 84-1903 states, “There is hereby levied an excise tax of three percentum (3%) upon the gross receipts . . . derived from all sales----” Ark. Stat. Ann. § 84-1902 (d) defines gross receipts as follows:
Gross Receipt — Gross Proceeds: The term “gross receipts” or “gross proceeds” means the total amount of consideration for the sale of tangible personal property and such services as are herein specifically provided for, whether the consideration is in money or otherwise, without any deduction therefrom on account of the cost of the properties sold, labor service performed, interest paid, losses or any expenses whatsoever.
Appellant contends that the Gross Receipts Tax is not a sales tax and that the statute requires appellant to pay the tax only on amounts actually collected. It argues that “derive” is defined as taking or receiving, especially from a specified source, and that something must be received in order to constitute a “gross receipt.” However, we have repeatedly held that the present Gross Receipts Tax Act, Act 386 of 1941, is a sales tax act. Cook v. Sears-Roebuck & Co., 212 Ark. 308, 206 S.W.2d 20 (1947); U-Drive-Em Service Co. v. Hardin, 205 Ark. 501, 169 S. W.2d 584 (1943). Ark. Stat. Ann. § 84-1902 (d) defines “gross receipt” as the “total of consideration for the sale,” the consideration bargained or contracted for, not the amount actually paid to the seller. Furthermore, in Cook v. Southwest Hotels, Inc., 213 Ark. 140, 142, 209 S.W.2d 469, 471 (1948), we stated as follows:
Although the word “derived” as used in Act 386 has a general meaning, we do not agree with appellee that the Commissioner would be compelled to withhold his demand for payment until a tax had actually been collected by the retailer. It is sufficient if the taxpayer should have done so.
Thus, the Gross Receipts Tax is due when the contract is entered into. Accord, Gardner-White Co. v. Dunckel, 296 Mich. 225, 295 N.W. 624 (1941).
In addition, Ark. Stat. Ann. § 84-1902 (d) precludes any deduction from the Gross Receipts Tax for “losses.” Because uncollected accounts are clearly “losses” in the context of this statute, they cannot be excluded in computing the tax. Accord, Olympic Motors, Inc. v. McCroskey, 15 Wash.2d 665, 132 P.2d 355 (1942).
Appellant next contends that the application of the Gross Receipts Tax to amounts billed but not collected results in a taking of its property in violation of due process and Art. 16 § 5 of the Arkansas Constitution. Appellant stipulated that it collects a deposit from each customer prior to the initiation of service, and it concedes that the amount of the deposit exceeds any tax assessed. Therefore, appellant has failed to show that any of its property is taken in payment of the Gross Receipts Tax for amounts billed but not collected. Accordingly, we do not reach these issues.
Finally appellant contends that the assessment of a ten percent negligence penalty under Ark. Stat. Ann. § 84-4741 (c) was erroneous. Appellant reasons that because both parties stipulated that appellant did not fail to pay the Gross Receipts Tax due to intentional disregard of the statutes involved and because there was no proof of negligence other than the fact of nonpayment, the penalty cannot be applied.
Ark. Stat. Ann. § 84-4741 (Supp. 1980) provides as follows:
If any part of a deficiency in taxes is determined to be due to negligence or intentional disregard of rules and regulations promulgated under the authority of this Act or any State tax law, then the Commissioner shall add a penalty of ten percent (10%) of the total amount of the deficiency, in addition to aiiy interest provided by law. [Emphasis added.]
The emphasized language was added to former law by Act 914 of 1981, section 6. However, the amended statute was not effective at the time of the deficiency assessment and it is not applicable. See Ragland, Comm’r. v. Miller Trane Service Agency, 274 Ark. 227, 623 S.W.2d 520 (1981). Although the current penalty provision, Ark. Stat. Ann. § 84-4741 (c) (Supp. 1980), may require a factual determination of negligence or intentional disregard of the Gross Receipts Act or of appellee’s regulations, we held that the former statute imposed an automatic penalty in Great Lakes Chemical Corp. v. Wooten, 266 Ark. 511, 587 S.W.2d 220 (1979). Therefore, the assessment of the ten percent negligence penalty in this case was proper.
Affirmed. | [
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Darrell Hickman, Justice.
Carl J. Stokes died testate in 1979. His will, made in 1975, shortly before his marriage to Charlene Stokes, left most of his estate to his adult children by a prior marriage, Ronald E. Stokes and his sister, Nancy Stokes Cornwell, the appellants in this case. The appellee, Charlene Stokes, Carl Stokes’ widow, elected to take against his will but we held in Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1980), that several of our gender-based statutes were unconstitutional and she was denied the election.
This particular litigation between the parties arose as an aftermath to our decision in Stokes v. Stokes, supra. The appellants filed suit against Charlene Stokes in probate court for an accounting of certain rental income she had received during the probation of Carl Stokes’ estate. The probate judge dismissed the case without prejudice and we affirmed. Stokes v. Stokes, 275 Ark. 110, 628 S.W.2d 6 (1982). The case was refiled in chancery court and the trial court essentially held in favor of Charlene Stokes and from that decision the appellants bring this appeal alleging several errors. Actually the question to us is one purely of fact and equity, and we affirm the chancellor.
Carl Stokes had a construction company which he owned with his two children. The company built apartments and the projects were customarily financed by People’s Bank and Trust Company. Carl and Charlene purchased a four-unit apartment house from the company that had been financed by People’s. After the purchase they were notified by People’s that the construction company was heavily in debt and that the company was going to have to provide more money on its various loans. Seven days after the Stokeses purchased the apartment house, they mortgaged it to People’s in exchange for an $80,000 loan. Charlene and Carl both signed the note.
Carl had a “rental account” at People’s where he deposited the rents from his various apartment complexes and the payments on two notes that he held. This was the Stokeses’ primary source of income. At the time Carl mortgaged the four-unit apartment house, he orally directed the bank to automatically take the monthly payments out of the rental account for that mortgage. People’s did so for a year before Carl’s death and for a year afterwards. It is not disputed that “income” from the apartments, which were ultimately determined to be the property of Carl’s estate and not Charlene’s, was deposited into the account.
When Carl died, Charlene owned eighteen apartments in her own right or by right of survivorship. Among these was the four-unit apartment house. A few days after Carl’s death, Ronald Stokes, the executor of the estate, and his attorney went to Charlene and told her to live as she had been and continue to manage Carl’s rental account. Ronald testified that he told her to keep a separate account for the rents from property she owned by herself. She said there was no discussion of separate accounts.
This case arose because the bank continued after Carl’s death to draw the payments for the mortgage of the four-unit complex from Carl’s rental account. Ronald claimed that Charlene should have made payments on the note from income on her own property since Carl and Charlene mortgaged the property in order to pay the purchase price and since the property was now Charlene’s. He also alleged that Charlene was principally liable on the note as a comaker, and not secondarily liable as an accommodation party.
The chancellor found that Charlene was an accommodation party on the mortgage note, and, therefore, Charlene was right in allowing the note to be paid from income that was the property of Carl’s estate. Apparently the chancellor found that the property was mortgaged to meet the debts of Carl Stokes’ company and we cannot say that he was clearly wrong. ARCP, Rule 52. Carl died in January and Ronald did not file this action until ten months later. Ronald consented to Charlene’s continued use of the rental account and he knew, or should have known, that the mortgage was being paid from that account and made no effort to stop it. Neither Charlene nor People’s was directed to stop drawing the payments from the rental account. No doubt the chancellor resolved the dispute between the parties in favor of the appellee, finding the facts and equities of the matter to be in her favor. We can only overrule that judgment if we find it clearly wrong, which we cannot do.
The chancellor did find that the appellee drew $761.00 from the account for insurance on her own property and that sum was ordered returned.
Affirmed. | [
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Per Curiam.
On June 2, 1981, petitioner L. V. Blakely pleaded guilty to second degree forgery. The trial court suspended imposition of sentence for five years. On November 8, 1982, a hearing was held on a petition to revoke the suspended sentence filed by the State. The petition was granted. Blakely has now filed a motion seeking permission to file a belated appeal of that action. His attorney at the revocation hearing, Mike J. Etoch, has submitted an affidavit in response to the motion.
Petitioner alleges that he wrote Mr. Etoch three times asking him to appeal the revocation. Mr. Etoch concedes that petitioner wrote to him and the circuit judge on December 2 and 3, which was within the thirty days for filing a notice of appeal, asking him to appeal. He states, however, that “at about the same time” he received a phone call from an employee of the Department of Corection who said that he would handle the appeal if Etoch would send a letter withdrawing himself as attorney-of-record. Although he sent the letter, Etoch never formally asked the trial court to relieve him as counsel.
Criminal Procedure Rule 36.9 provides that a belated appeal may be granted for good cause even if no notice of appeal was filed. We have consistently held that the failure of counsel to perfect an appeal in a criminal case where the defendant desires to appeal amounts to a denial of the defendant’s right to effective assistance of counsel. Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). There can be no doubt in this case that petitioner wanted to appeal. If counsel understood that the notice of appeal was to be filed by some other attorney, he was obligated to seek permission from the trial court to withdraw from the case. Rule 36.26 of the Arkansas Rules of Criminal Procedure provides:
Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.
Rule 11 (h), Rules of the Supreme Court of Arkansas, places certain duties upon the trial attorney if he intends to withdraw from a case. In Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979), we held that it was the duty of the trial attorney to obtain permission from the trial court to withdraw from the case and that the petition to withdraw should contain a statement of reasons therefor. Also, we held that a copy of request for withdrawal, if granted, should be sent to the appellant.
Petitioner’s motion for belated appeal is granted. Since Mr. Etoch has never received permission to withdraw from the case, he remains attorney of record on this appeal and must be held responsible for the duties imposed upon him by the rules, statutes and opinions of this Court. Surridge, supra; Finnie, supra. Petitioner has furnished us with an affidavit attesting to his indigency. As an indigent, he is entitled to have the record prepared at public expense. A writ of certiorari is issued to prepare the record.
A copy of this opinion shall be forwarded to the Committee on Professional Conduct. See Ellis v. State, 276 Ark. 560, 637 S.W.2d 588 (1982).
Motion granted. | [
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George Rose Smith, Justice.
On August 21, 1981, Frances Quattlebaum went to the Citizens Bank in Beebe and bought two 182-day certificates of deposit, one payable to herself or Thelma Martin and the other to herself or Norma English. Neither certificate made any reference to survivorship, nor was there a delivery of either certificate to its alternative payee before Mrs. Quattlebaum’s death on October 10, 1981. First Security Bank, as personal representative of her estate, brought this suit for a judgment declaring the estate to be entitled to the proceeds of the two certificates. The issuing bank interpleaded the money. The alternative payees claimed the funds, but the trial court declared the estate to be entitled to payment of the certificates. Our jurisdiction is under Rule 29 (1) (c).
The trial court was right. Here the language of the certificates made no reference to survivorship. Even when there is such a reference, the statute requires that the purchaser of the certificate sign a writing stating her intention that the funds be paid to the alternative payee upon the purchaser’s death. Corning Bank v. Rice, 278 Ark. 295, 645 S.W.2d 675 (1983); McDonald v. Treat, 268 Ark. 52, 593 S.W.2d 462 (1980); Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969).
Here Mrs. Quattlebaum signed nothing in the transactions except an acknowledgment of her receipt of a copy of a printed notice from the issuing bank, explaining that certain penalties would be imposed for early withdrawals of the money, with an exception in case of the purchaser’s death. There was, however, no language of survivorship either in the certificate or in the printed notice, which merely referred to a withdrawal after the purchaser’s death without indicating who would be entitled to make the withdrawal.
The appellants also rely on Act 843 of 1983, which provides in Section 1 (i) that terms such as “designate in writing” shall not be construed to require the depositor or purchaser to affix his signature to an instrument. That repeal of the earlier law, however, is not merely procedural and therefore retroactive, as the appellants argue. To the contrary, we have noted that a survivorship deposit is sometimes referred to as a “Poor Man’s Will.” Lovell v. Marianna Fed. S. & L. Assn., 264 Ark. 99, 568 S.W.2d 38 (1978). The requirement that a written will be signed by the testator is not a procedural formality but a safeguard essential to the substantive validity of the instrument. The same considerations apply to the earlier requirement that the purchaser of a certificate of deposit designate his intention by a signed writing. The 1983 statute cannot apply to this case.
Affirmed. | [
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Steele Hays, Justice.
The appellant, R.S. McCullough, is an attorney at law, licensed by and practicing in the State of Arkansas. The appellee, Loretta Johnson, is a court reporter for the Fifth Division Circuit Court in Pulaski County, Arkansas. Johnson sued the appellant for the cost of a transcript of the testimony in a criminal trial that McCullough had ordered for use in an appeal. This appeal arises from judgment of the Pulaski County Circuit Court against McCullough individually which awarded Johnson $1,137.70 plus interest for the costs of preparing the transcript.
On appeal, the issue is whether an attorney may be held personally liable for the costs of a transcript of trial proceedings he requested on behalf of his client. The case presents a matter of first impression in Arkansas.
Mr. McCullough represented Hurley M. Jones in a criminal proceeding in the Pulaski County Circuit Court which resulted in Jones’ conviction. Ms. Johnson testified that she was aware Mr. McCullough was representing Jones. Following the conviction, McCullough filed a notice of appeal and had a copy of the notice delivered to Johnson. Ms. Johnson testified that she found the copy on her desk and prepared the transcript.
Ms. Johnson did not ask for a deposit on the transcript and testified it was her custom to not require deposits unless she was dealing with an out-of-state attorney or one she did not know. She also requested deposits when she was doubtful of the financial ability of an attorney. Johnson said she looked to, and expected payment from, McCullough and assumed there would not be a problem because he had paid in the past.
After Ms. Johnson completed the transcript she contacted McCullough and asked for the costs of preparing it. She also told him she would take the transcript to the circuit court for completion and certification. Johnson testified that McCullough told her he would bring the payment by. Mr. McCullough did not deliver the payment, though he did obtain the transcript from the circuit clerk’s office and filed it in the Arkansas Court of Appeals.
Johnson subsequently sent McCullough a letter demanding payment. She stated that at one point, following the completion of the transcript, McCullough offered to give her $400 from Mr. Jones, but, she refused the partial payment. Ms. Johnson testified that at no time did McCullough expressly promise to assume responsibility for the debt nor did he indicate he would not be responsible for it.
In the meantime McCullough filed a motion on behalf of Jones to proceed in forma pauperis on appeal but the record had already been lodged with the appellate court. Consequently, the motion was denied. No payment was ever tendered to Johnson for the transcript either by McCullough or Jones. Johnson then filed the action against McCullough which gave rise to this appeal.
The appellant contends that the trial court should have granted summary judgment in his favor based on principles of Arkansas agency law. Arkansas recognizes the general rule that where an agent names his principal and does not exceed his authority when contracting on the principal’s behalf, the agent is not personally liable upon the contract unless the agent agrees to be. Peevy v. State, 9 Ark. App. 347, 659 S.W.2d 957 (1983); Ferguson v. Huddleston, 208 Ark. 353, 186 S.W.2d 152 (1945); Ogletree v. Smith, 176 Ark. 597, 3 S.W.2d 683 (1928); Neely v. State, 60 Ark. 66, 28 S.W. 800 (1894). This court has said, “[t]he rules of agency generally apply to the relationship of attorney and client.” Peterson v. Worthen Bank & Trust Co., 296 Ark. 201, 753 S.W.2d 278 (1988). However, we have not addressed the question presented by this case.
When the issue has arisen in other jurisdictions as to whether the attorney should be held personally liable for expenses incurred on behalf of a client two lines of reasoning have evolved within the general rules of agency law. Annotation, Attorney’s Personal Liability For Expenses Incurred In Relation To Services For Client, 66 ALR 4th Fed. 256 (1988); 7 Am. Jur. 2d Attorneys At Law § 153 (1980). Some jurisdictions take the position that the attorney is the agent for the client-principal and apply the rule that an agent is not personally liable on contracts made for a disclosed principal in the absence of an express agreement to be bound. Id. This places the burden on the service provider to obtain the attorney’s personal promise to pay. Id. See Ingram v. Lupo, 726 S.W.2d 791 (Mo. App. Ct. 1987); Eppler, Guerin & Turner, Inc. v. Kasmir, 685 S.W.2d 737 (Tex. Civ. App. 1985); Free v. Wilmar J. Helric Co., 70 Or. App. 40, 688 P.2d 117 (1984); Nagle v. Duncan, 570 S.W.2d 116 (Tex. Civ. App. 1978).
Courts in other jurisdictions have considered the agency relationship of the attorney and client a modified one, treating the attorney as a principal because his education, experience and professionalism render him in charge of the litigation. In those jurisdictions, the attorney ordering goods or services for the client will also be personally liable for those expenses, in the absence of an express disclaimer of such responsibility. Id. The effect of this reasoning places the burden on the attorney to expressly disclaim responsibility. Id. See Blake v. Ingraham, 44 Ohio App.3d 38, 540 N.E.2d 759 (1989); Copp v. Arndt & Associates, 56 Wash. App. 229, 782 P.2d 1104 (1989); Burt v. Gahan, 220 N.E.2d 817 (Mass. 1966); and, Monick v. Melnicoff, 144 A.2d 381 (D.C. 1958).
The trial court followed the view that the attorney should be responsible to a service provider in the absence of a disclaimer, and held Mr. McCullough liable for the costs of the transcript. It has been said that this view reflects the trend by taking into account modern litigation practices. We agree. This approach allows court reporters to confidently regard themselves as dealing with the attorney, not the client, and the attorney may avoid liability by informing the provider that the client, not the attorney, is responsible for any obligations incurred.
Affirmed.
Glaze, J., concurs. | [
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Donald L. Corbin, Justice.
The Arkansas Department of Human Services (DHS) appeals an order of the Crittenden County Circuit Court to expunge appellee John Heath’s name from the Child Abuse and Neglect Central Registry. On December 10,1990, the circuit court ordered expunction subsequent to the court’s reversal of the department’s determination that appellant had committed child abuse. DHS does not appeal the reversal.
Ark. Code Ann. § 12-12-516(b)(1)(A) (Supp. 1989) sets out the applicable law for expunction of child abuse reports:
(b)(1)(A) Records of all reports of abuse, neglect, sexual abuse, or exploitation shall be retained by the Child Abuse and Neglect Central Registry in accordance with the terms of this subchapter and it shall be sealed when the youngest minor victim-subject of the report reaches the age of twenty-one (21) years.
(i) Once sealed, the records shall not otherwise be available unless the department, upon notice to the subject of the report, gives approval for an appropriate reason.
(ii) Reports which were determined to be unfounded shall be expunged after three (3) years. [Emphasis supplied.]
Appellant DHS relied on the statute’s expungement provision in making a motion for clarification and amendment of the circuit court’s order. In its motion, DHS argued that section 12-12-516(b)(1)(A) prohibits expungement prior to the expiration of a three year period, and requested the circuit court to modify its order to conform with the department’s-, interpretation of the statutory expungement provision.
The circuit court responded to appellant’s motion by issuing an order directing DHS to “immediately carry out the Order of the Court of December 10, 1990 and immediately expunge Mr. Heath’s name from any Central Regis try [.]” The order further declared section 12-12-516(b)(1)(A) unconstitutional on grounds that the expungement provision violated appellee’s due process rights, and unconstitutionally infringed on the court’s inherent power to issue orders assuring compliance with its rulings.
Appellant DHS asserts two grounds for reversal of the trial court’s order. First, DHS argues that the trial court erred in ordering the agency to violate the statutory recording requirements. Second, DHS argues that the trial court’s expunction order exceeded the scope of judicial review under the Administrative Procedure Act, Ark. Code Ann. § 25-15-212 (1987). Given the circuit court’s stated grounds for declaring section 12-12-516(b)(1) (A) unconstitutional, we believe both arguments implicate constitutional issues. In fact, appellee relies solely on constitutional arguments in urging this court to uphold the expungement order.
We do not address the merits of appellant’s argument because the Attorney General was not notified of the constitutional attack on the expungement provision. Ark. Code Ann. § 16-111-106(b) (1987) requires that “[i]n any proceeding” in which a statute 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.” In the instant case, the constitutionality of section 12-12-516 was not implicated until the circuit court relied on constitutional grounds in ordering appellant DHS to comply with the expungement order. The purpose of the notice requirement is to prevent an ordinance or statute from being declared unconstitutional in a proceeding which might not be a fully adversary and complete adjudication. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), cert. denied, 462 U.S. 1111 (1983). Since the constitutional arguments were not fully developed before the trial court, a decision on the merits would circumvent the purpose of the notice requirement. See Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Olmstead v. Logan, 298 Ark. 421, 768 S.W.2d 26 (1989). Consequently, we reverse and remand to allow •conformance with the requirements of section 16-111-106(b).
Hays, J., concurring.
Brown, J., not participating. | [
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Robert L. Brown, Justice.
This appeal arises from the circuit court’s denial of appellant Dustin Heath Vickers’ motion to transfer his first degree murder case to juvenile court. At the time of the murder Vickers was seventeen years old. We find no error in the circuit court’s decision, and we affirm.
There is no disagreement over the facts in this case as they relate to this appeal. The murder occurred on October 6, 1990, and the charge against Vickers was filed in Pulaski County Circuit Court on January 23, 1991. On May 9,1991, Vickers filed a motion to transfer the case to juvenile court pursuant to Ark. Code Ann. § 9-27-318 (Supp. 1991). The circuit court denied the motion on June 18, 1991, following a hearing, and on July 1,1991, Vickers filed a petition for a writ of prohibition seeking to halt the trial of the charge in circuit court. We denied the petition, but at the same time we stayed the trial pending this appeal.
We have had several opportunities in recent months to consider juvenile transfer cases, and our holdings are now clear that the standard for review is whether the circuit court’s denial of a transfer was clearly erroneous. See Smith v. State, 307 Ark. 223, 818 S.W.2d 945 (1991); Bradley v. State, 306 Ark. 621, 816 S.W.2d 605 (1991); Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied 304 Ark. 402A, 805 S.W.2d 80 (1991).
In making the transfer decision, the circuit court must consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
Ark. Code Ann. § 9-27-318(e) (1987). If the court finds that a juvenile should be tried as an adult, it must do so by clear and convincing evidence.
We have held in this regard that a criminal information is sufficient evidence to establish that the offense charged is of a serious and violent nature. Walker v. State, supra. We have further held that the circuit court is not required to give equal weight to each of the above-mentioned statutory criteria. Penningtons. State, 305 Ark. 312, 807 S.W.2d 660 (1991); Walker v. State, supra. Nor is the court required to make specific findings of fact in a juvenile transfer case. Walker v. State, supra; Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986).
In this case, the circuit court not only reviewed the first degree murder information, but also heard the testimony of Pulaski County Deputy Sheriff Beadle, who testified that the victim had been shot in the left eye and in the back of the head, where a contact gunshot wound was visible. The court also heard testimony that Vickers did not have a prior criminal record; that he was both an average student and an average teenager; that he had attended church; and that he might be susceptible to rehabilitation.
In considering this testimony, the circuit court alluded to the seriousness and severity of the offense charged and to the manner in which it was carried out — the shot to the eye and the contact wound to the back of the head. He then denied the motion. This is sufficient to support a finding of clear and convincing evidence under Ark. Code Ann. § 9-27-318(e) (Supp. 1991). See Walker v. State, supra. We affirm the circuit court’s ruling.
Affirmed. | [
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David Newbern, Justice.
Appellant, Michael Keaton, was convicted of kidnapping. He contends evidence against him should have been suppressed because of a lack of probable cause to search him and his vehicle and that he was improperly denied a continuance. We hold the search was justified in the circumstances and that the court was well within its discretion in denying the continuance after having previously granted a continuance for the same purpose for which the second one was sought.
The evidence showed that Keaton approached a student who was studying in her vehicle parked on the Arkansas State University campus in Jonesboro, accosted her with a knife, entered her vehicle, and drove from the campus. He took her to a nearby motel where his tractor-trailer rig was parked, placed the victim in the cab, and handcuffed her hands behind her back. He took her keys and left to move her vehicle. The victim forced one hand free from the handcuffs and escaped. She ran to a nearby tire dealership and told the people there what had occurred. As she was explaining, she saw Keaton begin driving his truck away and pointed him out. Robert Deason, an employee at the tire store, got in his car and followed Keaton. He got the license number, the trailer number, and a full description of the vehicle and phoned the information to the tire store owner. This information was relayed to police officers who had come to the scene and broadcast on police radio. Keaton was stopped by an officer within minutes thereafter.
Keaton was taken into custody. An officer looked into the cab to check for other occupants and saw a knife matching the one described by the victim. The knife was at eye-level as the officer looked into the cab. Other officers who arrived shortly found that Keaton closely matched the description of the assailant given by the victim. They arrested him, and prior to admitting Keaton to the county jail, they removed his personal possessions including two sets of keys. One set belonged to Keaton and contained a key which was later used to unlock the handcuff remaining on the victim. The other ring of keys was identified by the victim as belonging to her. The victim also positively identified Keaton as her assailant.
Prior to trial Keaton moved to suppress the items obtained in the search of his person and the later search of the vehicle based on a lack of probable cause to stop him or search the vehicle. After having obtained one continuance to locate an alibi witness and being unable to do so, Keaton again sought a continuance on the eve of the trial for the same purpose. Both motions were denied. Following a guilty verdict, the jury set his sentence at 40 years.
1. Suppression
At a suppression hearing Keaton argued there was no probable cause for the initial stop of the vehicle and his subsequent arrest because of discrepancies in the victim’s description of the truck.
Keaton has no standing to argue suppression of the knife which was obtained by police in an inventory search of his truck after his arrest. There was no showing that he had a proprietary interest in the truck. Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990). Before conducting the inventory search of the impounded vehicle Officer J.R. Thomas obtained permission from the owners.
In his argument concerning the initial stop of the vehicle Keaton ignores the fact that the stop of the vehicle was predicated upon the report of Mr. Deason which included the license number, trailer number, and a complete physical description. There was much more than a “suspicion.” Uncontradicted evidence shows that Mr. Deason’s description was exact, and there is no assertion that Deason ever lost sight of the vehicle. Nothing suggests that Deason’s description was inaccurate. There was ample cause for the initial stop, Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991), and for the arrest, Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). The Trial Court did not err in denying the motion to suppress.
2. Continuance
Keaton’s defense asserted he was with someone else at the time and had nothing to do with the kidnapping. He sought and obtained a continuance. The police cooperated in searching for the witness, but they were unable to find a person with the name given by Keaton.
In considering whether a trial court was wrong in refusing to grant a continuance, abuse of discretion must be shown as well as resulting prejudice. McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979). Nothing suggests an abuse in this case. The first continuance established that there was little likelihood the witness would be found, and the evidence was overwhelming that Keaton was indeed involved in the kidnapping. We find no error in the denial of the motion.
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Donald L. Corbin, Justice.
Appellant, Jesse Wayne Smith, appeals a decision of the Pike County Circuit Court denying his motions to dismiss the charge of manufacturing a controlled substance with intent to deliver. We find no error and affirm.
Appellant’s motions to dismiss were based on former jeopardy grounds. He argues he has once been placed in jeopardy of loss of liberty because a jury was sworn to hear his case. The facts giving rise to this appeal follow.
Appellant’s case was set for trial September 21, 1990. He was to be tried along with his co-defendant, George West, Jr. Jury selection for the consolidated trial began September 17, 1990. On the morning of September 17, 1990, ten jurors were approved by both defendants and the state when the jury panel was exhausted. The trial court recessed until a new jury panel could be assembled at approximately 3:00 p.m. that afternoon.
At some point during this process, appellant and his counsel engaged in plea negotiations with the state. Thus, when the second jury panel was formed, the new veniremen were notified they would be hearing only one case, that of appellant’s codendant West. In the afternoon hours of September 17,1990, two more jurors and an alternate juror were selected. Appellant’s counsel, who also represented West at this point, continued the selection process and exercised his last strike on one of the original ten jurors; the alternate juror replaced the stricken juror and another alternate was chosen. All thirteen jurors were .then sworn to hear the case against West and instructed to return for trial on September 21, 1990.
Appellant’s counsel then notified the trial court that appellant’s plea negotiations had been withdrawn due to appellant’s misunderstanding of the conditions of the suspended sentence. The trial court accepted the withdrawal and stated that the jurors should be instructed to return the next morning to be qualified for appellant’s case.
All but one of the jurors returned on September 18, 1990. With the exception of the one nonreturning juror, the first ten jurors, who were originally qualified for both defendants’ cases, were seated in the jury box. The additional jurors, who were chosen from the second panel and only qualified to hear West’s case, were also present in the courtroom. The selection and qualification proceedings for appellant’s case were thus set to begin.
Consistent with the selection procedure used on the previous day, the eleventh and twelfth jurors were selected as well as an alternate; the alternate then replaced the stricken juror and another alternate was chosen. The additional four jurors were qualified by both appellant and the state to hear appellant’s case. The four newly-qualified jurors were then sworn to hear appellant’s case. The other nine jurors had been qualified to hear appellant’s case, but because of the plea negotiations, had only been sworn for West’s case. Thus, the original nine jurors had not been sworn to hear appellant’s case. Because one of the nine jurors was not present for the proceedings held on September 18,1990, the trial court decided to wait until the morning of the trial to swear all of the jurors together. Thus, at the close of the proceedings on September 18, 1990, a full jury had not been sworn to hear appellant’s case.
Trial was still set for September 21,1990, but was continued on motion of appellant’s counsel due to a conflict of interest in representing the two defendants in a consolidated trial. The two cases were later severed and appellant’s trial was rescheduled for February 15,1991. On October 4,1990, and again on January 31, 1991, appellant filed written motions to dismiss the charge based on double jeopardy grounds. Appellant argued that a jury had been sworn to hear his case but that he had never been brought to trial. Appellant claimed that because the jury had been sworn but had never heard his case, jeopardy attached. On June 4,1991, the trial court entered an order denying, without explanation, appellant’s motion to dismiss. It is from this order that appellant appeals.
We have previously held that an order denying a motion to dismiss charges because of double jeopardy is an appealable decision. Fariss v. State, 303 Ark. 541, 798 S.W.2d 103 (1990); Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959).
The Fifth Amendment to the United States Constitution states, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb[.]”
Article 2, Section 8 of the Arkansas Constitution states, “no person, for the same offense, shall be twice put in jeopardy of life or liberty[.]” With respect to double jeopardy, our statutes provide that:
A former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:
(3) The former prosecution was terminated without the express or implied consent of the defendant after the jury was sworn or,. . . unless the termination was justified by overruling necessity.
Ark. Code Ann. § 5-1-112 (1987).
We have previously interpreted these laws to mean that:
When the jury is finally sworn to try the case, jeopardy has attached to the accused and when, without the consent of the defendant, expressed or implied, the jury is discharged before the case is completed, then the constitutional right against double jeopardy may be invoked, except in cases of “overruling necessity” .... We have found overruling necessity in cases where the defense counsel was intoxicated or a juror was ill. [Citations omitted.]
Wilson v. State, 289 Ark. 141, 145, 712 S.W.2d 654, 656 (1986).
Appellant claims his liberty was jeopardized when the jury was sworn to hear his case. Thus, he argues, having once been placed in jeopardy of loss of liberty for the manufacturing charge, he cannot be tried for the charge and it should be dismissed. We do not agree that appellant has been placed in former jeopardy and therefore affirm.
Based on the facts discussed at the beginning of this opinion, we agree with the state’s argument and we conclude the jury was never sworn to hear appellant’s case. Although all twelve jurors and an alternate were qualified to hear his case, only four of them were actually sworn. The record is very clear that, because one of them was not present, the remaining jurors would be sworn when they all returned for appellant’s trial. That particular event, the return of the jurors to be sworn for appellant’s trial, has yet to occur.
The law recited above is very clear that jeopardy does not attach until the jury has been sworn. Wilson, supra. To this date, a jury has never been sworn to hear appellant’s case. Therefore, we conclude jeopardy has not attached and the trial court did not err in denying the motion to dismiss the charge on such grounds.
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Steele Hays, Justice.
Gary Leach, aged sixteen, and a companion were charged with some nineteen misdemeanor and felony counts of burglary, breaking and entering, criminal mischief and theft of property. The crimes were committed over a period of ten days. Leach pled guilty to eighteen counts and the order of commitment provided that Leach and his parents pay restitution in the amount of $3,670.08 jointly and severally with his co-defendant.
Leach filed a motion to correct an illegal sentence and brings this appeal from the denial of that motion. Leach maintains it was error for the trial court to order him to pay restitution in an amount exceeding the maximum provided in Ark. Code Ann. § 9-27-331 (d) (1987), which reads:
An order of restitution to be paid by the juvenile, his parent, guardian, or custodian may be entered only after the loss caused by the juvenile is proved by a preponderance of the evidence and the amount of restitution may not exceed $2,000.00.
Appellant does not challenge the imposition of joint liability, but contends his several liability is limited to $2,000. He argues that we must construe a legislative enactment exactly as it reads and on that basis a juvenile may not, under any circumstances, be held liable for an amount of restitution exceeding $2,000.
We disagree with that view of the statute. If the legislature had intended the ceiling to apply to a multiplicity of crimes it would have referred to “losses,” rather than “the loss.” The use of the singular noun clearly suggests that the cap is intended to apply to any one loss. Appellant’s interpretation would permit an offender to inflict losses of unlimited proportions upon a community while restricted to the paltry sum of $2,000 in restitution. That interpretation would be both implausible and contrary to the common meaning of the language used in the act. Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980).
Affirmed. | [
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Robert L. Brown, Justice.
The appellant, E. Leon Nicholson, appeals from a judgment for deceit in favor of the appellee, Billy C. Ivy, in the amount of $105,000. The judgment was in the nature of an indemnity for a judgment entered in like amount against Ivy for negligence and in favor of Maurice and Virginia Odom. Finding no error, we affirm.
This case involves the sale of real property known as Odom Skating Rink and Rental Property and the financing of that sale. On February 10,1983, Maurice and Virginia Odom, who owned the realty, signed a listing agreement with Ivy as the broker to sell the property. The original listing agreement was for a price of $424,000. No prospective purchaser agreed to that amount. Thereafter, a second listing agreement was signed between the same parties on February 24, 1985, with an asking price of $390,000. Again, no buyer was found for the listed figure.
During this period, Ivy contacted Nicholson about purchasing the property. On June 4,1985, Ivy and Nicholson agreed on a purchase price of $275,000, and that figure was memorialized in an offer and acceptance signed by Nicholson which showed Nicholson and his father-in-law, Walter Allbright, as the buyers. The sale price was comprised of the assumption of a promissory note dated February 10,1971, that was given by the Odoms to the original owner, Dan Holbrook, and his wife. That note was secured by a deed of trust on the real property. The offer to Nicholson and Allbright further entailed a down payment to the Odoms of approximately $50,000 and a note to the Odoms in the amount of $125,000 secured by a mortgage on the property to be sold. Attached to the offer was a list of 32 mobile homes in which the Odoms would have a security interest as additional collateral for the $125,000 note. The Odoms accepted the offer.
Between the offer and the sale’s closing, the buyer changed from Nicholson and Allbright to a corporation formed by them named Popeye Investments, Inc. The corporation was formed on July 10,1985, for the purposeof buying the Odoms’property. The Odoms agreed to a corporate purchaser but told their agent, Ivy, that they required personal guarantees from Nicholson and Allbright. Ivy testified at trial that he specifically told Nicholson that personal guarantees were required. Nicholson denied this assertion.
The sale closed at Nicholson’s law firm on July 22, 1985, with Popeye purchasing the property. The Odoms were given a corporate note from Popeye with no personal guarantees and no security interest in the mobile homes. They also received a down payment of $52,242.99; of that amount $13,200 was paid to Ivy for his services. The down payment was financed by a loan to Popeye from the Bank of Tuckerman, secured by a second mortgage on the real property. A security interest in the 32 mobile homes was also given by Popeye as additional collateral for the loan. Both Nicholson and Allbright personally guaranteed the loan.
At the closing, Nicholson, who is an attorney, represented his interest as a principal of Popeye. The Odoms did not have counsel present. Ivy testified at trial that Nicholson had said his law firm would prepare the documents and that separate counsel was not necessary. Maurice Odom also testified that Ivy told him that Nicholson had said separate counsel was unnecessary. It is not disputed that Nicholson’s law firm prepared the warranty deed and bill of sale for the Odoms and that Nicholson personally prepared the remaining documents. Nicholson disputed giving any advice on whether the Odoms should have independent counsel. Also at closing Mr. Twyford and Mrs. Twyford, the son-in-law and daughter of the first mortgagee, Dan Holbrook, testified that they raised the issue of personal guarantees by Nicholson and Allbright, because Popeye was giving Holbrook a new note to replace the 1971 Odom note. They were assured that guarantees were not necessary, because Holbrook would still retain a first mortgage on the property. Ivy and the Odoms deny hearing any discussion of personal guarantees at the closing.
The day after the sale to Popeye, the corporation sold the property to Harold Calhoun, who had managed it for several years, for $400,000. After a few months Calhoun defaulted and the property was sold to the First Apostolic Church, which also defaulted approximately one year later. The Bank filed a foreclosure action on its second mortgage and joined Popeye and the Odoms as parties defendants. After judgment in favor of the Bank, Nicholson and Allbright purchased the property at the foreclosure sale for $62,150, in full satisfaction of the Bank’s debt. The Odoms were awarded judgment against Popeye but received nothing at the foreclosure sale on the Popeye note, because Popeye had no assets, and the proceeds from the foreclosure sale were not sufficient to pay off the Odoms’s third mortgage.
As part of the Bank’s foreclosure suit, the Odoms filed a third party complaint against Ivy and alleged negligence due to Ivy’s failure to obtain personal guarantees of the Popeye note from Nicholson and Allbright. Ivy in turn filed a cross claim against Nicholson for indemnity. After full trial before the chancery court, judgment was entered in favor of the Odoms and against Ivy, and Ivy was awarded judgment over against Nicholson for deceit for the amount that Ivy was required to pay the Odoms — $125,000.
For his first point, Nicholson contends that the chancery court erred in making numerous findings of fact. He says that taken individually or as a whole, these errors in the court’s findings mandate reversal in a case where a fraudulent course of conduct is at issue. We discuss those findings seriatim:
1. The court found that Mr. Twyford discovered for the first time at closing that Popeye was going to be substituting a new note to replace the note given to Holbrook by the Odoms and that the note was to be liberalized. Nicholson argues error in that both Twyfords were aware in advance of closing that a liberalized replacement note would be given.
2. The court found that Ivy told Mr. Twyford that the individuals would be the makers on the note, and nothing was said about a corporate maker. Nicholson argues error in that this implies that the Twyfords were not aware of the Popeye note until closing. This is not correct, according to Nicholson, since Mrs. Twyford testified that she knew it was going to be a corporate note before closing.
3. The court found that Nicholson did not do a title opinion on the property for the Odoms, but he had done one for the Bank in anticipation of the second mortgage and the financing for the down payment. Nicholson argues error in that his law firm, not he, prepared the title opinion for the Bank. Moreover, he argues that the Odoms were not looking to him for a title opinion or legal counsel.
4. The court found that the Odoms received $38,042.99 in cash at closing. Nicholson argues error in that this omits the $13,200 commission that was paid to their real estate broker, Ivy. When that is factored in, the total payment to the Odoms at closing was $51,242.99.
5. The court found that Popeye was capitalized with only $300. Nicholson argues error in that Popeye in fact received $55,000.00 from the Bank, of which $51,242.99 was then paid to the Odoms as a down payment.
6. The court found that Nicholson told Mr. Odom at closing that the Popeye note was “just like cash.” Nicholson argues error in that this statement was made solely for the purpose of impressing upon Odom the need to put the note in a safe place.
7. The court found that Nicholson assumed the role of buyer, closing attorney, attorney for Popeye, attorney for the buyer, and attorney for the seller at closing. Nicholson argues error in that three of those roles — attorney for Popeye, attorney for the buyer, and the buyer — are one and the same. Also, his law firm only charged $75 for preparing the warranty deed and bill of sale for the Odoms, and Ivy was representing the Odoms while the Twyfords were there on behalf of Holbrook.
8. The court found that it was “unbelievable” that a third mortgagee financing an amount twice the size of the second mortgagee would not receive the same protection such as personal guarantees that the second mortgagee received. Nicholson argues error in that a nervous seller who had not gotten his first or second asking price might well agree to no personal guarantees, especially when the seller could easily have believed that the value of the real property exceeded the total indebtedness.
Nicholson concludes that these allegations of error by the chancellor militate against a judgment for deceit which must be proven by “clear and convincing evidence.” That, however, is not the standard of proof for cases in deceit, when alteration of a solemn writing is not involved. See Grendell v. Kiwhl, 291 Ark. 228, 723 S.W.2d 830 (1987); Clay v. Brand, 236 Ark. 236, 365 S.W.2d 256 (1963). Rather, the standard for deceit is preponderance of the evidence. Id. We hold that there is factual justification in the record for each of the chancellor’s findings of fact, and we are not prepared to say that any one of the eight is clearly erroneous under Ark. R. Civ. P. 52(a), or that in combination they are of sufficient magnitude to warrant reversal of the judgment.
For his second point, Nicholson urges that the facts of the case do not support a judgment in deceit. We have held that five elements establish the tort of deceit: a false representation of a material fact; knowledge or belief on the part of the person making the representation that the representation is false or that there is not a sufficient basis of information to make such a representation; an intent to induce the other party to act or refrain from acting in reliance upon the misrepresentation; a justifiable reliance upon the representation by the other party in taking action; and resulting damages. See Brookside Village Mobile Homes v. Meyers, 301 Ark. 139, 782 S.W.2d 365 (1990); MFA Mutual Insur. Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981).
In cases of deceit the credibility of the witnesses is all important in determining liability, and it is the trier of fact that is the sole judge of the credibility of the witnesses and of the weight and value of the evidence. See Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989). In the case before us, the chancellor was the trier of fact, and he had the opportunity to observe the witnesses, judge their credibility, and weigh the value of their testimony.
It is undisputed that Nicholson, as attorney for Popeye and one of its principals, made no effort to obligate himself personally to the Odoms for the balance of the purchase price. Dan Holbrook, who was given a note by Popeye without guarantees, had a first mortgage on the property. The Bank as second mortgagee had a Popeye note but also personal guarantees and a security interest in the mobile homes. Only the Odoms held a Popeye note secured by a third mortgage but with no other protection.
The chancellor placed great emphasis on the fact that Nicholson had taken pains to make the Bank secure with personal guarantees and a security interest in the mobile homes, but he had failed to afford the Odoms similar protection. This discrepancy in treatment was found to be significant evidence of the deceitful activity complained of. He further took note of the multiple roles played by Nicholson at closing and particularly of the fact that Nicholson’s law firm had provided legal services to the Odoms, who were not represented by counsel at the closing.
In sum, there was substantial evidence of record that Nicholson agreed to the personal guarantees and a security interest in the mobile homes in his offer but then prepared closing documents that did not reflect this fact. By this action the Odoms were induced to complete the sale under the misapprehension that the Popeye note would be guaranteed and that additional security would be given, and they were damaged. Under these facts the five elements establishing deceit were present, and we so hold.
We finally consider appellee Ivy’s motion for costs on grounds that he was impelled to incur these costs due to Nicholson’s deficient abstract. We do not agree. The abstract filed by Nicholson in conjunction with his brief was sufficient to determine the issues raised on appeal. See Goodloe v. Goodloe, 253 Ark. 550, 487 S.W.2d 593 (1972).
The judgment of the chancellor is affirmed. The appellee’s motion for costs is denied.
Newbern, J., concurs. | [
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Tom Glaze, Justice.
This appeal ensues from the trial court’s granting a new trial, finding that the damages awarded appellees by the jury were inadequate. The jury damages awarded resulted from a vehicular collision between an automobile driven by appellee Saul Peters and a tractor-trailer parked partially on Highway 63 by appellant George Hamilton. This tractor-trailer rig was owned by appellant Joe Williams. After the initial collision, the Peters’ vehicle then collided with another tractor-trailer which was operated by appellant Robert Coffman, but owned by appellant Continental Baking Company. These collisions resulted in personal injuries to Saul Peters and in the deaths of two ten-year-old girls, Molly Russell and Tiffany Fason who were passengers in the Peters’ car. Tiffany was Peters’ stepdaughter. The jury found no fault on Peters’ part and instead apportioned liability between the various appellant tractor-trailer operators and owners.
The jury awarded Peters $8,300.00 for damages resulting from his personal injuries and $12,500.00 each to him and his wife, Dorothy (Tiffany’s natural mother), for their mental anguish claims. Molly’s parents, Lazeta and Marvin Russell, were also each awarded $12,500.00 for mental anguish. Finally, Tiffany’s and Molly’s estates were awarded funeral expenses in the respective amounts of $1,300.00 and $4,800.00. Appellants challenge the trial court’s decision, setting aside these damages and granting a new trial, by arguing the trial court improperly substituted its opinion for the jury’s assessment of damages.
Appellants acknowledge the rule that when the trial court grants a motion for a new trial, the standard on review is whether there is a manifest abuse of discretion. Carr v. Woods, 294 Ark. 13, 1740 S.W.2d 145 (1987). They agree, as well, that, under ARCP Rule 59(a)(5), the inadequacy of the recovery can be a ground for a new trial. Id., see also Lamons v. Croft, 290 Ark. 341, 719 S.W.2d 426 (1986); Adams v. Parker, 287 Ark. 1, 709 S.W.2d 617 (1986); Lawson v. Lewis, 276 Ark. 7, 631 S.W.2d 611 (1982); Roberts v. Simpson, 275 Ark. 181, 628 S.W.2d 308 (1982). Appellants argue, however, that those cases in which this court has allowed a trial court to set aside a jury award were ones where a jury had failed to take into account all the elements of the total injury proven. Appellants point out Carr as an example where out-of-pocket damages for lost wages and medical expenses could be precisely calculated and a new trial was properly granted because the jury awarded less than the proven or calculated amount. Appellants attempt to distinguish the present case from those cited above because the damages questioned here are for mental anguish which only the jury is competent to determine.
Of course, in wrongful death actions where mental anguish has been an issue, this court has said time and again the amount of money required to compensate for “more than normal grief’ lies largely within the province of the jury. St. Louis S.W Ry. Co. v. Pennington, 261 Ark. 650, 677, 553 S.W.2d 436 (1977). However, our review in the case at hand is not limited only to the awards given for mental anguish. In ruling on the appellees’ request for a new trial, the trial judge in relevant part made the following comments:
... I was impressed by the jury’s finding and apportionments of the fault or liability. And while their findings were supported by sufficient evidence, I would not have been so shocked had their findings been differently as to the apportionment of forty-five, forty-six and nine percent I believe apportionment between the defendants. There is a little more argument or room or variance there than in the fixing of damages.
In each case my recollection is, and I have looked at the judgment, the jury having apportioned the fault, then allowed only the actual out-of-pocket expenses for the cost of burial. As to Saul Peters I think they limited his recovery for his own personal injuries to again doctor and medical hospital bills and awarded the parents $12,500.00 each for mental anguish and loss of the child. I always maintain an open mind until in this case giving the defense an opportunity to be heard. But from the very first outlet, opportunity to observe this verdict the Court was unquestionably shocked by the inadequacy of the verdict.
[Defendants’] brief cites and my first impression with it was that the plaintiff had the burden of showing not only the inadequacy, but that the damage award by the jury was of a nominal amount. And in light of today’s economy the Court is of the opinion that the award of $12,500.00 was a nominal award for the loss of the children. (Emphasis added.)
The trial judge voiced concern that the $12,500.00 award was nominal for the loss of the two children, but also noted the limited recovery allowed Saul Peters, who, the jury determined, bore no fault for the collisions and resulting damages. The parties stipulated that Peters incurred medical expenses and lost earnings totalling $8,225.80, and while the appellants never stipulated that these damages were related to the collisions, the jury awarded Peters $8,300.00, or just $74.20 more than the stipulated amount. In addition to his own testimony, Peters offered medical evidence that sufficiently supported his pain and suffering claims, which included a closed head injury, partial bladder rupture, fracture of his fourth metacarpal on his left hand, a fracture of his radius, left wrist, and minor lacerations and abrasions. Cf. The Scott-Burr Stores v. Foster, 197 Ark. 232, 122 S.W.2d 165 (1938). He was hospitalized for seven days, and was given pain medication during his stay.
The parties also stipulated that Tiffany’s funeral and related expenses were $2,407.00 and Molly’s were $4,795.70. Yet, the jury awarded Tiffany’s estate only $1,300.00 but awarded $4,800.00 to Molly’s. Appellants are unable to explain the jury’s assessment on these claims, nor can we.
In sum, while the trial judge largely focused on what he asserted to be inadequate or nominal damages to the appellees for the loss of the two children, our review of the judge’s decision to grant a new trial for inadequate damages is not so narrow. Clearly, Tiffany’s funeral expenses were incorrectly assessed; Peters’ award is questionable, as well, for the reasons discussed. Added to these ostensively inadequate awards, appellees suggest the trial court may have also reasonably perceived that the jury failed to consider the elements and evidence showing mental anguish, especially since Saul Peters, Tiffany’s stepfather for three years, was compensated the same as Tiffany’s mother, who had raised Tiffany from birth. Appellees also note that Saul’s' mental anguish award was the same amount awarded the Russells, Molly’s natural parents.
When considering all of the damage awards discussed above, we are unable to say the trial court abused its discretion in finding the jury’s assessment too small. Therefore, we affirm, leaving the parties to retry the case as to damages as agreed to by all the parties and as directed by the trial court. | [
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Per Curiam.
Appellants’ attorney Clyde Lee is directed to appear before this court at 9:00 a.m. on January 13,1992, to show cause why he should not be held in contempt of court for failure to timely file a brief in this case. | [
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Donald L. Corbin, Justice.
On October 16,1989, Ray and Hazel Bland filed an interpleader action in the Van Burén County Chancery Court seeking to interplead the sum of $11,580.06. This sum represented the contract, balance the Blands owed to Linn Perry d/b/a Perry Construction Co. (“Perry”) for construction of the Blands’ residence in Fairfield Bay.
The Blands filed the interpleader action after learning that Perry had failed to pay various subcontractors, mechanics, materialmen and laborers for work on the Blands’ residence. Hoping to avoid the assertion of multiple liens and liability claims by Perry’s creditors, the Blands named Perry and fifteen of his unpaid creditors as parties defendant in the interpleader action. Appellant Birdsong Cabinet Shop, Inc. (“Birdsong”) was an interpled creditor to whom Perry owed $6,749.00 for Birdsong’s construction and installation of cabinets in the Bland residence.
After the Blands filed the bill seeking interpleader on October 16, 1989, appellant Birdsong and the other party defendant creditors asserted cross-claims against co-defendant Perry for the amounts Perry owed to them. Perry admitted that the total sum he owed to his unpaid creditors exceeded the amount that the Blands sought to interplead, and Perry never asserted a claim to the funds.
On March 22,1990, the Van Burén County Chancery Court entered a decree granting the Blands’ motion for interpleader. At the oral hearing on the interpleader, appellant Birdsong claimed that Birdsong was entitled to priority in the distribution of the interpled funds. Birdsong argued for distribution priority based on its allegation that Birdsong had obtained a prior judgment for $6,949.00 against co-defendant Perry in an earlier Van Burén County Circuit Court proceeding. Birdsong informed the court that on the morning of March 12, prior to the interpleader hearing, Birdsong had obtained a writ of execution from the circuit court commanding the sheriff of Van Burén County to take into his possession funds held by the Chancery Clerk “on behalf of and for the credit of Perry Construction Co.”
After hearing Birdsong’s allegations, the chancellor stated that he would need briefs on the issue as he was unfamiliar with the law on priorities. Consequently, the chancellor’s decree reflected that the priorities issue would remain open pending submission of briefs, and further ordered the chancery clerk to hold the interpled funds pending future orders of the court.
The chancellor entered a final order in the interpleader action on October 22,1990. This order denied Birdsong’s motion for priority, and decreed that the interpled funds should be distributed on a pro-rata basis to Perry’s co-defendant unpaid creditors. The decree also awarded the creditors deficiency judgments plus post judgment interest against co-defendant Perry. Finally, the decree awarded attorney’s fees totalling $750.00 to co-defendant Perry’s attorney. Provision for the attorney’s fees was as follows: $500.00 payable out of the interpled funds prior to distribution, and $250.00 payable specifically from Birdsong’s pro-rata share of the funds.
Appellant Birdsong challenges the chancellor’s decree on two grounds. First, appellant alleges that the chancellor erred in not according Birdsong the distribution priority of a lien creditor. Second, appellant argues that the chancellor erred in awarding attorney’s fees to co-defendant Perry’s attorney because Perry was not a successful party in the interpleader action. We affirm the chancellor’s pro-rata distribution of the interpled funds, and reverse the award of attorney’s fees to Perry’s attorney.
Appellant Birdsong argues for priority based on the writ of execution Birdsong obtained on its prior judgment against Perry. However, Birdsong’s attorney did not raise the priority issue until the March 12, 1990 oral hearing on the interpleader action. At that time, Birdsong’s attorney orally informed the chancellor of Birdsong’s judgment and writ of execution. Birdsong did not attempt to enter into the record either the judgment or writ of execution.
After the chancellor informed present counsel that he would need briefs on the priorities issue, Birdsong’s attorney specifically stated, “I’ll state on the record, Y our Honor, that we — if you rule against us on this priority issue, then we have no problem with the settlement. We’ll agree with the settlement and with the payout period.” At the close of the hearing, the chancellor requested that present counsel stipulate the facts into the record and into the briefs on the priority issue. The record reflects no such stipulation.
At the final hearing on October 22, 1990, the chancellor ruled that the interpled funds should be distributed pro rata among the co-defendant unpaid creditors. Birdsong did not object to the chancellor’s ruling and again failed to introduce into the record its prior judgment or writ of execution. Nor did Birdsong call any witnesses or introduce any evidence regarding Birdsong’s lien claim or the claims of the other co-defendant unpaid creditors. In fact, the other defendants agreed to a settlement providing for pro-rata distribution of the interpled funds.
Our review of the record indicates that appellant Birdsong did not introduce any evidence to support its priority claim. We further believe Birdsong waived its objection to a prorata distribution by expressing its consent to the settlement at the March 12 hearing. Consequently, we affirm the chancellor’s prorata distribution of the interpled funds. See Arizona Public Service Co. v. Lamb, 84 Ariz. 314, 327 P.2d 998 (1958) (affirming a pro-rata distribution of interpled funds to unpaid co-defendant creditors).
Appellant’s second allegation of error challenges the chancellor’s award of attorney’s fees in the interpleader action to John Aldworth, co-defendant Perry’s attorney. We reverse this award.
In Saunders v. Kleier, 296 Ark. 25, 751 S.W.2d 343 (1988), we specifically addressed the issue of attorney’s fees in interpleader actions. After noting that ARCP Rule 22, the rule governing interpleader, does not even mention the issue of attorney’s fees, we affirmed the denial of attorney’s fees based on our general rule that attorney’s fees are not allowed except when expressly provided for by statute. Saunders, supra. We apply the same rationale in the instant case to find that the chancellor had no authority under Rule 22 to award attorney’s fees to co-defendant Perry’s attorney.
Perry’s attorney relied on the attorney’s lien statute, Ark. Code Ann. § 16-22-304 (Supp. 1989), in arguing that he should be entitled to attorney’s fees. We likewise find no authority under this statute for an award of attorney’s fees.
Section 16-22-304 provides in pertinent part:
(a)(1) From and after service upon the adverse party of a written notice signed by the client and by the attorney at law,. . .the attorney at law,. . . shall have a lien upon his client’s cause of action, claim, or counterclaim, which attaches to any settlement, verdict, report, decision, judgment, or final order in his client’s favor, and the proceeds thereof[.] [Emphasis supplied.]
In the instant case, co-defendant Perry did not receive a verdict in his favor in the interpleader action. Rather, the final decree ordered distribution of the interpled fund among Perry’s co-defendant unpaid creditors. As Perry did not receive any portion of this fund, no judgment exists on which his attorney may attach a lien. Consequently, we reverse the chancellor’s award of attorney’s fees to Perry’s attorney.
Affirmed in part and reversed in part.
Brown, J., not participating. | [
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Darrell Hickman, Justice.
The circuit judge granted the appellees’ motion for a new trial because the jury’s verdict was against the preponderance of the evidence. On appeal it is argued that since the appellees, plaintiffs below, did not move for a directed verdict, they were precluded by ARCP Rule 50(e) from moving for a new trial. We find no merit to this argument and affirm the decision of the trial court.
This is a negligence case involving an accident between a tractor-trailer rig and a car. The issue of liability was virtually conceded by the appellants. The appellants are the driver and owner of the rig. Mrs. Roberts was injured when her vehicle left the highway between Springdale and Huntsville on a curve. She and several others testified that Yeager, the truck driver, forced her off the road. During closing arguments the appellants’ lawyer said “We will concede the accident was our fault.” Evidence of the appellees’ damages was introduced, but the jury returned a verdict for the appellants.
The appellees did not move for a directed verdict at the close of the case but did move for a judgment notwithstanding the verdict, which was denied, and then made a motion for a new trial. The appellants argue that Rule 50(e), as interpreted by us, requires a plaintiff to move for a directed verdict or be precluded from filing a motion for a new trial because the verdict is against the preponderance of the evidence. Rule 50(e) has nothing to do with such a motion for a new trial. That rule provides:
When there has been a trial by jury, the failure of a party to move for a directed verdict at the conclusion of all evidence, or to move for judgment notwithstanding the verdict, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.
A party does not have to make a motion testing the sufficiency of the evidence to go to the jury as a prerequisite to making a motion for a new trial. Motions for directed verdict and judgment notwithstanding the verdict are made to preserve a later argument on the sufficiency of the evidence to go to the jury. ARCP 59 specifically states a motion for a new trial may be granted for eight reasons, one of which is where the verdict is clearly contrary to the preponderance of the evidence. Such a motion does not test the sufficiency of the evidence and is not precluded by Rule 50(e).
On appeal we affirm a decision granting a new trial unless we find a manifest or clear abuse of discretion. Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982). None occurred here. The appellees’ motion for reimbursement of costs is granted pursuant to Ark. Sup. Ct. R. 9(e).
Affirmed.
Purtle, J., not participating. | [
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David Newbern, Judge.
In this workers’ compensation case the appellants ask us to reverse the award to the claimant because it is not supported by substantial evidence. The primary assertions of the appellants are (1) that the medical testimony proves the claimant’s functional disability is no more than 20%, and (2) the claimant has chosen to withdrawn from the labor market because she has reached retirement age and is eligible for social security benefits. .
The claimant was 62 years old when she fell as the result of slipping on an oily substance on the floor while she was at work as a salesperson for M. M. Cohn. Her shoulder was fractured, and after a long period of treatment, including surgery, one physician concluded her shoulder sustained functional disability of 10% and her right upper body was disabled. 10%. Another doctor concluded she had a permanent partial impairment of 20% to the right upper extremity as a result of the injury, and that she would be unable to lift anything over head with that extremity “for a period of time” and “probably should not lift any weights over ten pounds with this extremity.” He also recommended that if she performed limited work, she “might be allowed to sit for a period of time’ ’ in the event she developed pain on her right side.
The claimant consulted a vocational psychologist who concluded:
“I . . . feel that due to her age [64 at the time of his evaluation] and disabilities, that it will be very difficult for her to locate competitive employment and while she states a strong desire to be suitably employed and to return to her former activites, my suggestions for this lady would be retirement.”
The claimant was also evaluated by a clinic psychologist whose deferred diagnosis of her was “psychoneurosis with depression.” He found she did not have an interest in going back to productive work and that in his opinion “she probably would manifest stress-related difficulties if she were involved in full-time work.” His conclusions also included the following:
This psychologist is of the opinion that the probability of Mrs. Haile going back to some productive work is very small. I do not feel that she is capable of full time employment given her age and physical problems. If she were younger in age and had the use of her arm, she could be expected to succeed in a rehabilitation program and secure employment suited to her abilities. Should her injury not [have] occurred, Mrs. Haile would have had numerous occupations from which to choose: . . .
We hold there is substantial evidence this claimant is totally disabled. The Arkansas Supreme Court long ago departed from the restrictive view that only anatomical or functional disability could be considered in determining disability to the body as a whole. The departure came in Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961), and since that case was decided we have been among the great majority of jurisdictions which allow consideration of several factors in determining not just functional bodily limitations, but loss of earning capacity as a predicate for workers’ compensation. See, Wright, Compensation for Loss of Earning Capacity, 18Ark. L. Rev. 269(1965), and 2 Larson, Workmen’s Compensation Law, §§ 57.51 and 57.61 (1976). Professor Larson suggests the principle and the factors as follows:
If the evidence of degree of obvious physical impairment, coupled with other factors such as claimant’s mental capacity, education, training, or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. [2 Larson, supra, § 57.61, pp. 10-136 and 10t137]
The odd lot doctrine refers to employees who are able to work only a small amount. The fact they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible. 2 Larson, supra, § 57-51, pp. 10-107, et seq.
In Arkansas Best Freight Sys., Inc. v. Brooks, 244 Ark. 191, 424 S.W. 2d 377(1968), the Supreme Court sustained an award of compensation for total disability despite medical evidence the claimant was only functionally disabled to the extent of 50%. The court said:
“Loss of the use of the body as a whole’ ’ involves two factors. The first is the functional or anatomical loss. That percentage is fixed by medical evidence. Secondly , there is the wage-loss factor, that is, the degree to which the injury has affected claimant’s ability to earn a livelihood . . . [T]he second element is to be determined by the Commission, based on medical evidence, age, education, experience and other matters reasonably expected to affect the earning power. [244 Ark. at 193]
In Johnson County v. Timmons, 249 Ark. 1106, 463 S.W. 2d 365 (1971), the Supreme Court sustained an award based on a finding of 70% disability to the body as a whole despite medical evidence which supported a finding of 10% functional disability. The claimant was 64 years old. The Court said:
“Apparently the Commission was convinced that because of his age, limited education, lack of training, and physical disability, job opportunities for the claimant will now be scarce; and that he will never be in a position to earn a wage approaching more than thirty per cent of his prior average wage rate. There was substantial evidence to support those conclusions. [249 Ark. at 1110-1111]
The foregoing authorities permit the Commission to consider the age of the claimant and her overall condition and prospects for employment. The testimony of the physicians and the psychologists, when combined with that of the claimant as to her limited education and experience constitutes substantial evidence of her disability. It becomes.even more substantial in view of her statement that she had applied to go back to work at Cohn’s, but had not been rehired.
Neither Ark. Stat. Ann., § 81-1310(c)(2) (Supp. 1979), which states exceptions to cases in which compensation will be paid, nor any other section we have found makes an exception excluding compensation to persons who are eligible for or are drawing social security benefits. Apparently no such exception exists in Arkansas or elsewhere. See, Larson, supra, § 57.61, n. 25.
Affirmed.
Judge Penix dissents. | [
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Darrell Hickman, Justice.
The only issue before us is the application of the Arkansas Wingo Act. That law essentially provides that foreign companies must register with the Secretary of State to do business in Arkansas. Failure to register subjects the foreign corporation to the possibility of a fine and makes its contracts unenforceable. Ark. Stat. Ann. §§ 64-1201, 1202 (Repl. 1966). See Note, 25 Ark. La. Rev. 578 (1972).
The chancellor held that the appellant, a Mississippi corporation not authorized to do business in Arkansas, could not recover for work done in Arkansas for an Arkansas resident.
We affirm that decision.
The facts are essentially undisputed. The appellant does virtually all its business in Mississippi and less than 1% of its business in Arkansas. It is not registered to do business in the State of Arkansas as required by law; the company’s officers did not know of the requirement. Its agents came to Arkansas and entered into a contract in Arkansas to do some work on a residence near Lake Village.
The appellant was not paid for its work and filed an action to impose a lien against the Arkansas residence. The owners, J. D. Vickers and Susan Smith Vickers, as well as several mortgage holders were joined as parties. The Vickers were later divorced and Susan Vickers was deeded the residence. Relying on the Wingo Act, she denied that the appellant could impose a lien and recover on it.
In several decisions we have discussed the Wingo Act. In Pacific National Bank v. Hernrich, 240 Ark. 114, 398 S.W. 2d 221 (1966), we held that a contract between a noncomplying foreign corporation and an Arkansas resident was not merely unenforceable but void ab initio. In Worthen Bank & Trust Co. v. United Underwriters, 251 Ark. 454, 474 S.W. 2d 899 (1971), we said:
The purpose of the statute is not to permit such corporations to avoid liability under such contracts, but the assignment or otherwise, and to put prospective purchasers or assignees on notice that such contracts, even when negotiable or valid on their face, are void and unenforceable even in the hands of what would otherwise appear to be a bona fide purchaser for value.
The chancellor was correct. This was not an interstate commerce transaction that would make the Wingo Act inapplicable.
There are two other questions raised. Susan Vickers filed a counterclaim against the appellant seeking $2,000.00 damages for alleged negligent workmanship by the appellant. Counterclaims or setoffs are mandatory in Arkansas. Ark. Stat. Ann. § 27-1121 (Repl. 1979); Arkansas Rules of Civil Procedure, Rule 13.
The appellant argues that the appellee, Susan Vickers, waived her remedy under the Wingo Act by filing a counterclaim. It was later dismissed by the chancellor. We hold that appellee did not waive her remedy under the Wingo Act when she filed a counterclaim.
The Colonial Bank of New Orleans, claiming to hold a mortgage on the residence, joined the Vickers’ move to have the complaint dismissed. The appellant argues that the bank, because it was not in privity of contract with appellant, had no standing to claim such relief. The bank, however, had a mortgage of record to land on which the appellant sought to impose a lien. The validity of the Bank’s mortgage is contested by appellant. Whether the mortgage is enforceable would be relevant to establishing priority between the bank and appellant only if the appellant had a valid claim to a lien. We hold that because of appellant’s failure to obey the Wingo Act, it can enjoy no rights under the contract it made in Arkansas and that this disability extends to a priority contest between the non-complying foreign corporations and creditors of the Arkansas resident even though they are not in privity of contract with the debtor.
This is no greater an expansion of the Wingo Act than allowed in Pacific National Bank v. Hernrich, supra, and Union Planter’s Bank v. Moore, 250 Ark. 272, 464 S.W. 2d 786 (1971), where we held that the Wingo Act voided the claims on a negotiable instrument of a party who would otherwise have been a holder in due course.
Affirmed.
Stroud and Mays, JJ., not participating. | [
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James H. Pilkinton, Judge.
This is an appeal by Lou Ella Thompson from a decision of the Arkansas Workers’ Compensation Commission denying her claim for benefits as the widow of William Thompson, a deceased employee.
The question before us on appeal is not whether there is substantial evidence in the record to sustain Mrs. Thompson’s claim; the issue is whether there is substantial evidence to sustain the Commission’s findings in favor of the employer. Tigue v. Caddo Minerals Co., 253 Ark. 1140, 491 S.W. 2d 574 (1973). Arkansas Foundry Co. v. Cody, 251 Ark. 57, 470 S.W. 2d 812 (1971). In arriving at an answer to this question we must give the evidence its strongest probative force in favor of the Commission’s findings. Tigue v. Caddo Minerals Co., supra. Bentley v. Henderson, 251 Ark. 203, 471 S.W. 2d 548 (1971).
William Thompson, age 58, was employed by Sellers & Sons Construction Company as a carpenter. He was working on a project at the Georgia-Pacific plant in Fordyce, Arkansas. The week preceding his death he had worked forty-eight hours, three eight hour days and two twelve hour days. The day of his death was a Wednesday, November 30, 1977. He had not worked the preceding four days. On the day he died Mr. Thompson commenced work at 7:00 a.m., setting forms in a drainage ditch, arid was engaged at that task until about 10:00 a.m., when the superintendent directed Mr. Thompson to go inside to do other work.
While inside a building the decedent worked cutting holes in the ceiling. Mr. Thompson went to the plant lunchroom at noon and, at that time, the superintendent decided to halt the work for the rest of the day because of rain. The decedent then went with the superintendent to a tool shed. He got into the cab of a truck belonging to Georgia-Pacific, with other workers, to drive to where their automobiles were parked. After driving a short distance, Mr. Thompson commenced to gasp and fell across the passengers, apparently dead. He was pronounced dead on arrival at a local hospital by Dr. Jack Dobson.
A claim was filed before the Arkansas Workers’ Compensation Commission by appellant, as widow of the decedent. Appellee denied that Mr. Thompson sustained an accidental injury arising out of and in the course of his employment which caused his death. A hearing was held before an Administrative Law Judge, at which time the deposition of Dr. Jack Dobson was introduced into evidence, and the medical reports of Dr. Wayne Elliott, the pathologist who performed the post-mortem examination, were also introduced into evidence.
The Administrative Law Judge entered an order finding that the decedent did not sustain a compensable heart attack. The claim was denied and dismissed. On appeal to the full Commission, the Workers’ Compensation Commission also denied and dismissed the claim finding that Mr. Thompson did not sustain a compensation injury.
The opinion of the two doctors appears in the record. Dr. Jack Dobson, a general practitioner at Fordyce, Arkansas, examined the body, but he had never seen Mr. Thompson during his lifetime. Dr. Dobson suggested an autopsy which was performed by Dr. Elliott, a pathologist at El Dorado, Arkansas. The autopsy report indicated that Mr. Thompson had suffered a heart attack some 14 years earlier. Dr. Elliott expressed an opinion that decedent died of his ischemic coronary disease, either as a result of arrhythmia or an infarction of sufficient severity to preclude historic changes prior to death. Dr. Dobson stated that he did not have an opinion as to whether the decedent died from arrhythmia or from an infarction. He could not answer the question as to whether arrhythmia relates to work effort. He said “I can’t answer that question because I’m just not aware of the relation between work and stress and the induction of arrhythmia.” When asked whether the work or labor performed that day would cause or contribute to the death if the decedent did in fact die from a myocardial infarction, Dr. Dobson replied that “any infarction in a person with 80% occlusion of the coronary arteries could be induced by labor.” However, he went on to say: “I thinkit could have, the amount of work he did that day. Again, I don’t know whether it did.”
We have two doctors with slightly differing opinions regarding causal connection of the heart attack with the job in this case. Dr. Elliott says that there was nothing in his findings to indicate any causal connection to the work. Dr. Dobson states that it could be, but he simply does not know. Dr. Dobson was reluctant to even admit a possibility of causal connection.
In denying the claim the. Commission found that the medical evidence in this case does not establish that the work Mr. Thompson was doing on November 20,1977, was a sole or a contributing cause of the fatal heart attack he suffered on that day. Therefore the claimant has not met the burden of proof required. After a careful review of the record, we are unable to say that there is no substantial evidence to support the Commission’s findings.
The decision of the Commission is affirmed. | [
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Holt, J.
Petitioners, Waldron Manufacturing Corporation, with its only office and place of business in Scott county, Arkansas, and E. L. Mock, also a resident and citizen of Waldron, Scott county, Arkansas, appeared specially in the Logan- circuit court, southern district, and filed their motion to quash the service upon E. L. Mock on the ground that said service was served upon the said E. L. Mock on Sunday, contrary to the statute. This motion was overruled, and this action is' brought in this court for a writ prohibiting the Logan circuit court and the judge thereof from proceeding further in the premises.
The petition is as follows: “Come now the above named petitioners, and each of them, and allege and show to the court that on the 30th day of October, 1938, the same being Sunday, one Earl Neely filed in the Logan circuit court, southern district, a complaint for alleged personal injuries alleged to have resulted from an accident which is alleged to have occurred on the 18th day of April, 1936, at Waldron, Scott county, Arkansas, against the above-named petitioners, and that said complaint has been since the date of filing and is now pending in the court' aforesaid; that purported service of summons was had upon the petitioner, E. L. Mock, on the 30th day of October, 1938, said day being Sunday, in the southern district of Logan county while said Mock was passing through by automobile the said southern district of Logan county; that purported service of summons was thereafter had on petitioner, Waldron Manufacturing Corporation, on the 4th day of November, 1938, in Scott county, Arkansas; that at the time said suit was filed and purported service had upon the petitioner, E. L. Mock, and when the purported service was had upon the petitioner, Waldron Manufacturing Corporation, the said Earl Neely and both of the petitioners were residents of Scott' county, Arkansas, where they had all been such residents for a period of years, and none of said parties were residents nor did they have a place of business in the southern district of Logan county; that said Earl Neely could have at any time either prior to Sunday, October 30,1938, or on any day thereafter obtained valid service of summons on either of the petitioners herein. Petitioners state that the purported service of summons on the petitioner, E. L. Mock, on Sunday was invalid, illegal and of no effect, and the exception permitting' service on Sunday, as provided for in § 1345 of Pope’s Digest of the Statutes of Arkansas, was not available where the plaintiff sought to obtain service on defendants who both resided in a. neighboring county and in the county where the plaintiff resided and where service could be had on any week day either prior to or subsequent to Sunday.
This plaintiff was further prevented from obtaining legal service on Sunday and coming within the exception mentioned in the statute by reason of the fact that at the time this suit was filed in the Logan circuit court, southern district thereof, a suit involving the same cause of action was pending between the plaintiff, Earl Neely, and the defendant, Waldron Manufacturing Corporation, and no attempt had even been made to make petitioner, E. L. Mock, a party to that suit, although service could be had upon the said Mock at any time should the plaintiff have so desired. This suit pending in the Waldron circuit court was not dismissed until this suit was filed in the Logan circuit court, southern district thereof. Furthermore, as .the record attached to this petiiton shows, the said Earl Neely is a near relative of petitioner, E. L. Mock.
The complaint filed in the Logan circuit court, southern district thereof, was prepared by one of the attorneys for the said Neely, on Saturday preceding the Sunday on which service was had. Petitioners state that the said E. L. Mock was inveigled and tricked into passing through the southern district of Logan county, Arkansas, for the purpose of obtaining service upon him; that on the 21st day of November, 1938, the petitioners herein, without entering their appearance in the Logan circuit court, southern district, appeared specially and filed in said court a motion to quash the purported service of summons upon these petitioners, and said motions were heard by the court and evidence taken on the 20th day of December, 1938. Said motions to quash were overruled and denied by the court over the objections and exceptions of petitioners, and said court and the judge thereof, the Honorable J. 0. Kincannon, has assumed to take jurisdiction of the claimed cause of action of the said Earl Neely against these petitioners, and has set said cause for trial in the circuit court of Logan county, southern district thereof, and that unless prohibited by order of this court will proceed with the trial of the cause of the said Earl Neely against these petitioners. That by reason of the matters and things herein set forth, (the record and evidence taken at the hearing, where the facts are undisputed), said court is wholly without jurisdiction of these petitioners or either of them. That a complete transcript of the proceedings in the Logan circuit court, southern district thereof, including the evidence taken at the hearing aforementioned, is attached hereto and made a part of this petition. That notice has been given to all of the interested parties that this petition would be filed on this date. Wherefore, premises considered, petitioners pray that a temporary writ of prohibition be issued against the Logan circuit court, southern district, and the Honorable J. 0. Kincannon, the .judge thereof, prohibiting said court and said judge from further proceeding in the case of Earl Neely v. Waldron Manufacturing Corporation and E. L. Mock until the further order of this court; that upon final hearing of this petition said writ of prohibition be made permanent and perpetual and that petitioners have all other proper relief.” This petition was properly sworn to and verified by one of the attorneys for petitioners.
The complaint, upon the filing of which the service of summons in question was had, was filed on the 30th day of October, 1938, on a Sunday. It is a suit for personal injuries alleged to have been sustained on the-18th .day of April, 1936, at Waldron, Arkansas, in the plant-of petitioner, Waldron Manufacturing Corporation. It is alleged that E. L. Mock, petitioner-, was the fellow-servant whose negligence caused the accident and that he is a resident of Scott county, Arkansas. The summons was served on E. L. -Mock on October 30,1938, Sunday, in the southern district of Logan county, Arkansas. The affidavit of one of the attorneys for the plaintiff on which the right to the service of summons is based, was made and filed with the clerk of the Logan circuit court on the 30th day of October, 1938, Sunday, and is as follows: “Chas. I. Evans on oath states that he is ag*ent and attorney for Earl Neely; that service may not be had upon the defendant, E. L. Mock, after today in the southern district of Logan county, Arkansas, so far as affiant knows and believes.” Both petitioners appeared specially and filed separate motions to quash the summons and the service thereof, which motions were overruled by the court on the 20th day of December, 1938.
The facts as disclosed by the record, substantially are: E. L. Mock, one of the petitioners, has lived 20 years .at Waldron, Scott county, Arkansas, and is now a resident of that place. He was served with summons on Sunday, the 30th day of October, 1938, about a mile south of Booneville, Arkansas, while he was returning from a visit to his wife’s daughter at Ratcliff, Arkansas. He went from Waldron to Ratcliff by the way of Greenwood, Arkansas, but returned by way of Booneville, Arkansas, and had never before made the trip by the way of. Boone-ville. His wife is about a third or fourth cousin of the plaintiff, Earl Neely. He had not talked to Earl Neely about the case. His wife had talked to Neely about a week before the Sunday in question. Earl Neely lives in Waldron, Scott county, Arkansas, and has for a great number of years. Earl Neely could have gotten service on petitioner, E. L. Mock, any day in the past year or more in Scott county, Arkansas, where they both resided.
Miss Ruth Lyman, deputy circuit clerk at Booneville, testified that she issued the summons on request-of one of plaintiff’s attorneys and docketed the case, that the affidavit was made by Mr. Evans before her and that he told her Mr. Mock was at Ratcliff and he thought he might get service on him as he came through Boonevibe.
Mr. Evans testified that he is one of the attorneys for the plaintiff and caused the complaint to be filed in the case and summons to be issued; that he had information that Mr. Mock would be visiting Ratcliff on the next day; that Mr. Neely gave him the information that Mr. Mock was going over to Ratcliff; that he got Miss Lyman to' file the papers, got the process and an officer and they caught Mr. Mock about a mile and a half south of Booneville. Mr. Earl Neely testified that he learned of Mock’s intended trip on Saturday from Neely’s little girl and that he so advised Mr. Evans. He testified that at the time of the service in question- on Sunday that he had a suit pending at Waldron, Arkansas, against the Waldron Manufacturing Corporation hut not against Mr. Mock upon the same cause of action; that Mrs. Mock was a second cousin to his mother; that he had not planned to take his suit any certain place; that he was in a car running along behind' the Mocks.
Mr. Burnett testified that he is an official of the Wal-dron Manufacturing Corporation and that this company does no business in Logan county; that their place of business is at Waldron.
On this state, of the record, petitioners earnestly insist that the service of summons so had on Sunday is void and of no effect and that the writ of prohibition should be granted.
As a general rule, service of summons on Sunday is void and of no effect. Our statute forbids the execution of process on Sunday except in special cases and in cases of urgent necessity. As was said in a very early case of this court, that of Haines et al v. McCormick, 5 Ark. 663, “This principle is founded upon the moral sentiment of a Christian people, -which all just governments respect and obey. ’ ’ Again it has been said: ‘ ‘ The Christian Sabbath is wisely recognized by law as a ‘day of rest’ to be devoted to religious contemplation and observance, free from secular disturbance. And, to aid in securing it against desecration, statutes have been enacted.” Chaney v. Stacy, 247 Ky. 520, 57 S. W. 2d 530. This court said in Rosenbaum v. State, 131 Ark. 251, 199 S. W. 388, L. R. A. 1918B, 1109: “The history of the origin of the Sabbath and of the legislation "which has been enacted to preserve and perpetuate Sunday or the Christian Sabbath as a civil institution is a subject upon which volumes have been written, but the above brief resume sets forth the salient features that are indispensible for the correct interpretation of the meaning of the words ‘necessity, comfort or charity’ as used in the act under review. Christ in expounding what he and those of the Christian faith believed to be the divine law as contained in the Fourth Commandment, did not specifically designate the labor which it was lawful to perform on the Sabbath day as works of necessity, comfort or charity. Yét a critical analysis of his examples and precepts illustrating the character of deeds that might lawfully be done on the Sabbath day demonstrates clearly that it was only such labor as might be properly classed as that of daily necessity, comfort or charity.” Unless, therefore, the service in the instant case comes within the exception provided for in § 1345 of Pope’s Digest, it must be declared void and of no effect. Section 1345 is as follows: “A summons, subpoena, notice, order of arrest or of injunction may be issued on any holiday, except Sunday, and on Sunday where the officer having the process believes, or an affidavit of the plaintiff or some other person is made to the effect that affiant believes, that the process can not be executed after such holiday. ’ ’ Respondents insist that they have brought themselves within the terms of this section and that, therefore, the service must be held good. To this contention of respondents, we can not agree.
It will be noted from reading the affidavit of one of the attorneys for the plaintiff that it does not state “that the process can not be executed after such holiday”, as required by the statute, but .contents itself by saying “that service may not be had upon the defendant, E. L. Mock, after today in the southern district of Logan county, Arkansas.” We hold that the Legislature meant by the above section 1345 of Pope’s Digest, that in order to permit the service of the process on .Sunday the said process or service could not he had anywhere within the State of Arkansas after such Sunday. The undisputed facts in this case show that all of the parties to this case, including E. L. Mock, were residents of "Waldron, Scott county, Arkansas, and had been such residents for a great many years and well known to each other, none of them living in Logan county. Service could have been had on E. L. Mock at any time in Scott county, or elsewhere in the State of Arkansas, this being a transitory action, wherever he might be found and spit filed against him and the petitioner, Waldron Manufacturing Corporation, on any day except Sunday. The affidavit in question says that service may not be had upon E. L. Mock after today (which was Sunday) in the southern district of Logan county, Arkansas. It does not say that service could not have -been had on Mock in any other of the seventy-four counties of this state. There is no necessity that Mock should be sued in the southern district of Logan county, Arkansas. There is no evidence reflected by this record to the effect that E. L. Mock was putting himself beyond the jurisdiction of the courts of this state. The affidavit in question does not say that service could not be had on the defendant Mock on any other day, but it does say that service could not be had on Mock on any other day in the southern district of Logan county. The necessity contemplated by the statute is not shown in this case. We are of the opinion that the affidavit in question is not sufficient and falls short of the requirements of the statute.
We have carefully examined the Kentucky case of Chaney v. Stacy, 247 Ky. 520, 57 S. W. 2d 530, relied upon by respondents, and we are-of the opinion that it does not control here.
Respondents have filed a petition seeking the right to have the officer’s return corrected to speak the truth and show that he received the affidavit in question when the summons was given him for service on defendant Mock and that it was returned and filed with the clerk by him after the summons was served. We may test the return as being actually amended in the respect sought, yet when so amended, we hold that there remains absent any showing of necessity for the service of the writ on Sunday.
We conclude, therefore, that the writ of prohibition asked for should be granted, and it is so ordered.
Humphreys and Meiiaffy, JJ., dissent. | [
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David Newbern, Judge.
In this quiet title suit, a rather complicated set of facts presents a simple question. Does the filing of a complaint to quiet title on the basis of adverse possession satisfy the requirement of actual notice of plaintiffs claim of exclusive ownership to persons claiming to be cotenants? The chancellor held it was sufficient, and we affirm.
A. C. Girardot owned the 40 acres in question here. He died intestate and was survived by four daughters and one son. Three of the daughters are the appellants here. The appellees are the successors to the title of the other daughter, Louise Standridge, who filed her complaint to quiet title against her sisters in 1955.
The son of A. C. Girardot, whose name was A. D. Girardot, purchased the land from the state in 1938, after it had been forfeited for delinquent taxes. A. C. Girardot had been dead for several years. Although there is a question whether this purchase by A. D. Girardot amounted to a redemption which would have been for the benefit of himself and the other heirs, as well, we need not answer it in view of our finding that Louise obtained title by adverse possession.
A. D. Girardot conveyed the land to Louise by warranty deed dated December 14, 1940. Louise had been in possession, for a time with her mother and at least one of her sisters, since 1932. The mother died and the sister who had lived on the land, but in a separate house from Louise, left for California in 1952. This left Louise in exclusive possession. The appellants claim her possession was with their permission.
The year before Louise filed her suit to quiet title, she mailed to at least two sisters deeds which would have conveyed their interest in the land to Louise. They refused to execute the deeds, and that apparently precipitated the complaint to quiet title. In her complaint, Louise recited her warranty deed from her brother and her continuous adverse possession for more than 20 years. The appellants filed a motion to require Louise to make her complaint more definite and certain, to which Louise filed a response. The appellants did not, however, answer the complaint or seek any affirmative relief in the case until 1976, some three years after Louise had conveyed the land to others who preceded the appellees in title.
Assuming, without deciding, that the purchase by A. D. Girardot from the state might be considered a redemption on behalf of all the heirs, and thus not sufficient to convey the entire title to Louise, we are compelled to find Louise’s possession from 1955 until 1973 more than sufficient to establish her claim, and thus to establish the claim of the appellees. We recognize that adverse possession claimed against one’s cotenants must be based on clear notice to them. Dodson v. Muldrew, 239 Ark. 202, 388 S.W. 2d 90 (1965); Staggs v. Story, 220 Ark. 823, 250 S.W. 2d 125 (1952). However, we can think of no more unequivocal way of conveying notice than by filing a suit to quiet title. The filing, in 1955, of the motion to make more definite and certain confirmed that the appellants knew of the suit.
If we were evaluating a motion to dismiss the complaint for failure to prosecute the claim we would be confronted with a very different question from the one presented here. We must keep our attention focused on the fact that Louise was in exclusive possession at the time her complaint was filed. The appellants could have answered the complaint and sought affirmative relief anytime thereafter, but they did not do so until 1976. We have no hesitancy in saying Louise’s claimed adverse possession came to fruition at least as early as seven years after her complaint was filed.
Affirmed.
Judges Howard and Penix dissent. | [
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John A. Fogleman, Justice.
Appellant Joseph Calvin Thomas was charged with the first degree murder of Jacob Martin, Jr., by shooting him on July 31, 1977. Thomas was found guilty of second degree murder. On appeal, he contends that the evidence was insufficient to support the jury verdict finding him guilty. We find sufficient evidence and affirm.
Martin died as a result of a wound inflicted by the firing of a .38 caliber pistol by appellant. The issue of second degree murder was submitted to the jury as a lesser included offense by an instruction setting out Ark. Stat. Ann. § 41-1503 (1) (b) (Repl. 1977), which defines that offense as follows:
A person commits murder in the second degree if he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life.
The case was properly submitted on the issue of justification. See Ark. Stat. Ann. § 41-110 (3) (Repl. 1977). Justification is a defense which becomes an issue when any evidence tending to support its existence is introduced by either the defendant or the state. Ark. Stat. Ann. §§ 41-502, 41-110 (3) (Repl. 1977). Those portions of the statute applicable here [41-507 (Repl. 1977)] provide:
(1) A person is justified in using deadly physical force upon another person if he reasonably believes that the other person is: (a) committing or about to commit a felony involving force or violence; or (b) using or about to use unlawful deadly physical force.
(2) A person may not use deadly physical force in self-defense if he knows that he can avoid the necessity of using that force with complete safety: (a) by retreating, except that a person is not required to retreat if he is in his dwelling and was not the original aggressor,
The court gave an instruction to the jury in the words of the statute.
It is the position of appellant that the evidence presented by the state substantiated a defense of justification in that it showed that:
1. The deceased was about to commit a felony involving force or violence.
2. The deceased was about to use unlawful deadly force.
3. Thomas was in his dwelling at the time of the incident.
4.Thomas was not the original aggressor.
The state had the burden of negating this defense. Ark. Stat. Ann. §§ 41-115 (5) (c), - 110 (1) (a), - 110 (3) (Repl. 1977). Thus, argues appellant, the state failed to present sufficient evidence that he knowingly caused the death of Martin under circumstances manifesting extreme indifference to human life.
As we view the evidence, the answer to the question posed by appellant turns upon the question of justification, for, unless appellant was justified in the shooting of Martin, the evidence is ample to sustain a conviction of second degree murder. In evaluating the evidence, appellant views it, for the most part, in the light most favorable to him. We must view it, however, in the light most favorable to the state. Stout v. State, 263 Ark. 355, 565 S.W. 2d 23. We will state it in that light.
The shooting was witnessed by at least three persons other than the deceased and the defendant, it took place on the porch of a dwelling house at 1860 Summit in Little Rock, where both Martin and Thomas lived. Phillip Bryant, an 11 - year-old boy, who lived next door, was one of them. His father and Ronald Lee Dixon were the others. After witnessing the shooting, Dixon called the police. Dixon, Bryant, Sr., and a man named Walter Jones were playing cards in Dixon’s house, directly across the street from the house at 1860 Summit Street. Thomas had been present there and had planned to play with the others, but Bryant said that he went back across the street several times. The shooting took place shortly after the last of these trips.
The Bryant youth was upstairs in his room, looking out the window, when he saw Jacob Martin come through the screen door which opened onto the porch at 1860 Summit. He testified that Joe Thomas immediately followed Martin out. He said that Martin was holding a plate in one hand and that Thomas fired one shot which missed Martin, and that Martin, then holding the plate with both hands, threw it at Thomas, who then fired the second shot which struck Martin.
The senior Bryant said that he and the others looked across the street and saw Martin come out of the house holding a plate of food on which there were eating utensils and that Thomas followed closely, carrying a gun at his side. He said that Martin was holding the plate with both hands and that the two appeared to be arguing, but that Martin had his back to Thomas and was standing near the steps when Thomas fired the pistol without raising it. Then, he said, Martin turned and, using both hands, threw the plate of food at Thomas, who shielded himself against the plate, took a step backward and shot Martin, who then fell to the porch. He said that Martin was unable to get up, although he tried several times.
Dixon said that he looked across the street when he heard the first shot, which apparently went through the porch floor. He said that he saw Martin throw a plate of food, on which there were utensils, at Thomas. He said that the next instant he saw the second shot. It seemed to him that the two were arguing. He, too, stated that Martin held the plate with both hands when he threw it and that Martin and Thomas were from four to six feet apart. Both Bryant and Dixon observed through a picture window in the Dixon house.
Dixon said that about five seconds elapsed between the time he looked up and the time the plate was thrown. Estimates of the three witnesses of the time interval between the throwing of the plate and the fatal shot ranged from a split second to five seconds. The Bryant youth and Dixon said that Martin had nothing in his hands after he threw the plate. Bryant, Sr., did not think that anything then remained in Martin’s hands. Dixon knew that Martin had a knife and fork on the plate, but said he couldn’t see what Martin had in his left hand.
After Martin fell, the elder Bryant saw Thomas walk across the porch toward Martin, holding the pistol over Martin’s face, and then walk around Martin, still pointing the pistol at him. Bryant said that when Martin did not get up, Thomas,, who was not wearing a shirt, went back into the house, but came out between 30 seconds and one minute later with a shirt, which he put on as he crossed the street on his way to the Dixon house. He knocked on Dixon’s door, but Dixon told him to leave and, at Bryant’s suggestion, called the police. Dixon said that Thomas then jumped off the porch and left.
At about 3:00 p.m., Lawrence Evans heard of the shooting. Later he went to his mother’s house at 721 West 17th Street and saw Thomas there. He said that Thomas was nervous and upset and wanting to know if Martin was dead. According to Evans, he and others tried to calm Thomas and persuade him to turn himself over to the police. He said that Thomas kept saying, “He shouldn’t have thrown the plate at me,” and then said, the “guy had a knife.”
There seems to have been no witness to events preceding Martin’s coming out the front door. Thomas gave the only accounts of these events, but they are not consistent.
Thomas made a statement to officers Chapman and Garner at about 6:20 p.m. He gave this version of the events leading up to the front porch episode:
Thomas came into the house at 1:00 or 1:30 p.m., after having been to a liquor store and having purchased a bottle of wine. He found Martin sitting in the kitchen cursing some hungry children. When Thomas remonstrated, Martin cursed Thomas, jumped up and advanced on Thomas, holding a knife. Thomas fled to his room, with Martin chasing him up the hall. Thomas went into his room, got his pistol, and went back into the hall where Martin was standing and fired a shot into the air. Martin then ran out the screen door and Thomas fired another shot in that direction but it did not hit Martin. Martin then picked up a plate, came toward Thomas while holding the knife in one hand, and threw the plate, hitting Thomas in the mouth. Thomas then fired the shot which hit Martin and proved to be fatal. Thomas then remarked that he ought to kill Martin, but when Martin pleaded with him, said that he would not. Thomas then went into the house, but soon came back out and went to his aunt’s house. He did not know Martin was dead until he went to the police station some hours later.
Thomas testified. His testimony varied from the statement in important particulars. He stated that he did not shoot Martin intentionally. In his testimony, he recited the following version:
Thomas had found two children cooking in the kitchen and heard hollering upstairs, so he went up and found two small children, whom he brought downstairs to the kitchen. After asking the two who were cooking to share their food with the little ones, Thomas went across the street to Dixon’s house. When he told the cardplayers about the children and their being left alone, he was advised to call the police. Instead, he went back across the street to the house in which both he and Martin lived and found Martin in the hall, with a plate of food in his hand. When he asked Martin to give some of it to the children, Martin refused, profanely. Thomas remonstrated strongly, but then saw that Martin had a knife and, becoming frightened because Martin had a reputation for cutting, ran to his room. Martin followed, entered the room and lunged at Thomas, who then grabbed his pistol off his dresser and fired it into the wall and floor. Martin then turned and left. Thomas did not know where he went. Thomas then tried to leave the house, but when he got to the porch, he found Martin hunched over against the wall. Martin cursed Thomas and threw the plate in his face. Martin was still holding the knife in his hand. When the plate hit Thomas in the face, the pistol he was still carrying went off and Martin fell to the floor. Thomas did not deliberately shoot Martin, but was afraid that Martin, who was cursing and making faces, was going to hurt him. Thomas saw Martin lying on the porch and went to see if he could give help. When he saw that Martin was lying still, he went into the house to ask others who lived there to call an ambulance and the police. Instead, they jumped up and left. Thomas then went to the Dixon house to use the telephone, but when denied admission, went to his aunt’s house and later went to the police station.
He did not hold the pistol in Martin’s face as Martin lay prone on the porch, go into the house to get a shirt, or have to be persuaded to go to the police station. The witnesses who described the encounter on the porch did not see what they said they saw.
Thomas was corroborated only by the facts that a knife was found on the porch, six to eight inches from Martin’s left hand, after Thomas had left the scene, and that there was a broken plate near the doorway. Thomas did have a small cut on his lips when he reached the police station. In his brief, Thomas tacitly concedes that the evidence might justify the finding that the knife left Martin’s hand when he threw the plate. Thomas said that he had tried unsuccessfully to find the two people who were inside the house when he reentered after the shooting. Yet, he did not give their names or other means of identifying them. He did give the names of two people he said he had seen across the street and had asked to call an ambulance, but he did not present them as witnesses. It is also true that Dixon, who gave some of the testimony most damaging to Thomas, had a criminal record and there were discrepancies in his testimony as compared with that he gave at a preliminary hearing. Still, the resolution of conflicts, inconsistencies and contradictions in the evidence was for the jury. Scott v. State, 254 Ark. 271, 492 S.W. 2d 902; Houpt v. State, 249 Ark. 485, 459 S.W. 2d 565; Hill v. State, 250 Ark. 812, 467 S.W. 2d 179. The jury’s conclusion on the credibility of the witnesses is binding on this court. Pope v. State, 262 Ark. 476, 557 S.W. 2d 887; King v. State, 194 Ark. 157, 106 S.W. 2d 582; Butler v. State, 192 Ark. 802, 95 S.W. 2d 636. Thejury obviously resolved these questions adversely to appellant. We cannot say that a reasonable mind could not have reached the jury’s conclusion from all the evidence.
We do not agree with appellant that, as a matter of law, the facts showed that Martin was about to commit a felony involving force or violence or about to use deadly physical force, either lawfully or unlawfully. The jury could have found, and apparently did find, from the testimony of eyewitnesses that Martin was only attempting to deter his pursuer from shooting him with the pistol. The jurors were not required to believe that Martin then had a knife in one hand or, if he did, that he ever attempted to use it as a weapon. The jury was not required to accept appellant’s testimony as to what happened before the emergence of Martin on the front porch, particularly in view of the differences in his accounts of the events. It could even totally reject evidence that Martin was the original aggressor. The jury was not required to accept Thomas’s testimony as uncon-tradicted, and we are not required to so view it. McCray v. State, 254 Ark. 601, 494 S.W. 2d 708; Sanders v. State, 258 Ind. 11, 279 N.E. 2d 194 (1972); Cook v. State, 46 Ala. App. 663, 248 So. 2d 158 (1971); People v. Amata, 270 Cal. App. 2d 575, 75 Cal. Rptr. 860 (1969). See also, State v. Monaco, 230 N.W. 2d 485 (Iowa, 1975); Hudson v. State, 77 Ark. 334, 91 S.W. 299; Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225; Lindsey v. State, 172 Ark. 1176, 288 S.W. 915; Lucius v. State, 116 Ark. 260, 170 S.W. 1016. The jury had a right to accept that part of his statement and testimony it believed to be true and to reject that part it believed to be false. Anderson v. State, 210 Ark. 548, 197 S.W. 2d 36; Smith v. State, 216 Ark. 1, 223 S.W. 2d 1011, cert. den. 339 U.S. 916, 70 S. Ct. 562, 94 L. Ed. 1341 (1950); Smith v. State, 218 Ark. 725, 238 S.W. 2d 649; Cranford v. State, 156 Ark. 39, 245 S.W. 189; Howard v. State, 34 Ark. 433.
If the jury believed, as it could from the evidence, that Martin did not engage in conduct that created a substantial danger of death or serious physical injury to Thomas, or that the circumstances did not demonstrate that Martin acted with extreme indifference to the value of human life, then it could not have concluded that he had committed an aggravated assault, as appellant suggests. See Ark. Stat. Ann. § 41-1604 (Repl. 1977). The jury was not bound to conclude that Martin was about to commit battery in the first degree, as appellant contends, because it was not unreasonable to believe that Martin did not act, or intend to act, with the purpose of causing serious physical injury to Thomas, or of seriously or permanently disfiguring him or of destroying, amputating or permanently disabling a member or organ of Thomas’s body or that the circumstances manifested that he was acting with extreme indifference to the value of human life. See Ark. Stat. Ann. § 41-1601 (1) (Repl. 1977).
Even if the jury believed that Martin was the original aggressor, it was not established, as a matter of law, that the use of deadly physical force by Thomas was justified even though, as an occupant of the house, he was not required to retreat. Ark. Stat. Ann. § 41-507 (2) (a). It was also Martin’s dwelling. Appellant admits that he chased Martin from the dwelling onto the front porch. Even if Martin was the original aggressor, if he had, in good faith, withdrawn from the encounter, and the danger to Thomas was no longer immediate, urgent and pressing, Thomas was not justified in pursuing him to continue the fight or to use deadly physical force on him. McDonald v. State, 104 Ark. 317, 149 S.W. 95. The time lapse between the throwing of the plate and the fatal shot may have been such that the jury concluded that Thomas acted knowingly and deliberately in a spirit of revenge which manifested an extreme indifference to the value of human life.
The judgment is affirmed.
We agree. Harris, C.J., Holt and Hickman, JJ.
Even though appellant’s testimony at the trial seems to assert accident rather than justification, he does not contend, on appeal, that the slaying was accidental.
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Marian F. Penix, Judge.
This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).
The question to be resolved in this case is whether the claimants-appellees, who participated in a strike against the appellant-company, are precluded from unemployment compensation benefits because of the “labor dispute” disqualification provision of the Arkansas Employment Security Act [Ark. Stat. Ann. §81-1105(f) (Repl. 1976)] .
Collective bargaining negotiations over a new contract between the company and the United Auto Workers (UAW) were begun in July of 1977. By September 8,1977 a new contract had not been produced, and the union called a strike, setting up a picket line. Negotiations continued during the strike. On September 27 the company made a contract offer which they stated would remain on the table until October 5 at 12:01 a.m. after which time the offer would be withdrawn. This offer was rejected October 2. On October 16, 1977, the picket line was removed.
Also on October 16, 1977, the appellees sent the following mailgram to appellant:
The United Auto Workers hereby accept the company’s last contract offer and ends the strike effective October 16, 1977.
All Strikers hereby apply unconditionally for reinstatement to their old jobs or for maximum job rights legally available.
This is a continuing application for employment. The Union will assist in contacting strikers in any way possible.
During the strike the company had hired permanent replacements for the striking employees. As of October 16, 1977, there were no available jobs for the strikers who wished to return to work. These then unemployed workers filed claims for unemployment compensation benefits. The Special Examiner found the workers to be ineligible for benefits from September 8, 1977 to October 16, 1977, due to the labor dispute disqualification of Ark. Stat. Ann. § 81-1105(f). As of October 16, 1977, however, he found them to be eligible for benefits because they were no longer unemployed by “reason of a labor dispute.” the labor dispute having-ended on October 16, 1977, with the unconditional offer to return to work. On appeal the Board of Review reached the same conclusion, ruling the workers were entitled to unemployment benefits beginning October 16, 1977. The decision was affirmed by the Circuit Court.
The appellant contends a labor dispute continued because the appellant’s offer had not been accepted by the appellees by the October 5 deadline imposed by the appellant-company. Appellant relied heavily on Guinn v. Arkla Chemical Corp., 253 Ark. 1029, 490 S.W.2d 442 (1973). Guinn is distinguishable from this case. There the employer company closed its plant and the employee-claimants never made themselves available for returning to work. Claimants were denied unemployment compensation. An unconditional offer to return to work was absent in Guinn. Therefore, we feel Guinn is not applicable here. The appellant cites cases from other states. However, because the statutes from such other states are not identical to the Arkansas Employment Security Act we feel these cases are not of benefit to us.
The appellees rely on Little Rock Furniture Manufacturing Co. v. Commissioner of Labor, 227 Ark. 288, 298 S.W. 2d 56 (1957) and Rainfair, Inc. v. Cobb, 229 Ark. 37, 312 S.W. 2d 906 (1958). These cases, while factually on point, were decided prior to 1959. Until 1959 the disqualification section of the Arkansas Employment Security Law read:
An individual shall not be eligible for benefits for any week with respect to which it is found that his unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed
An offer by strikers to return to work would terminate the stoppage of work. An offer to return would certainly be material. The 1959 change in the law deleted the words stoppage of work. We cannot accept the appellees’ argument that the Little Rock Furniture and Rainfair cases were dispositive in the present case. We feel the wording change in the statute affects the validity of these cases.
Under the present wording of Ark. Stat. Ann. § 81-1105(f):
If so found by the Commissioner, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment if he lost his employment or has left his employment by reason of a labor dispute other than a lockout at the factory, establishment, or other premises at which he was employed (regardless of whether or not such labor dispute causes any reduction or cessation of operations at such factory, establishment or other premises of the employer), as long as such labor dispute continues, and thereafter for such reasonable period of time (if any) as may be necessary for such factory, establishment, or other premises to resume normal operation. [Emphasis added]
The crucial term is “labor dispute”. This term has not been specifically defined in Arkansas by statute nor by court decisions. The appellant company would have us adopt the definition given by Section 2(9) of the National Labor Relations Act:
[A]ny controversy concerning terms, tenure or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
The definition of “labor dispute” in the National Labor Relations Act was not adopted in the Arkansas Employment Security Act. We believe all of the facts and circumstances in each case must be considered in determining whether a “labor dispute” exists or has terminated within the meaning of the Arkansas Act. We hold that the collective and unconditional offer by the striking employees to return to work terminated the “labor dispute” within the meaning of Ark. Stat. Ann. § 81-1105(f).
The lower court held as a matter of fact the labor dispute had ended. The appellant asserts this holding to be an erroneous conclusion of law. We hold the decision to be a correct conclusion of law.
This court need not address the issue raised by appellees that a broad definition of § 4(f), supra, conflicts with the NLRA and would therefore be pre-empted by the NLRA.
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J. V. Spencer, III Special Justice.
This appeal involves the proper contractual interpretation of three (3) burial certificates issued by the Baxter County Burial Association, and whether a restraining order should have been issued by hte lower court to protect an alleged contractual right.
The material facts are undisputed. The Baxter County Burial Association issued certificate No. 11022A in the amount of $300.00 to Dorothy Mae Miller, and later issued certificate No. 11950 in the amount of $500.00 to Pauline Iris Walton, and certificate No. 12067 in the amount of $500.00 to John E. Beam. The burial certificates state that they are subject to the burial association by-laws, which are fully reproduced in the Miller certificate, and a general summary of the by-laws are reproduced in the Walton and Beam certificates. The by-laws as set forth in the Miller certificate are different from those set forth in the Walton and Beam certificates.
On May 25, 1973, the Baxter County Burial Association entered into a reinsurance contract, under the terms of which all existing burial certificates issued by Baxter County Burial Association were transferred to the appellant, Drummond Citizens Insurance Company, which assumed all contractual liability thereunder. Drummond Citizens Insurance Company had selected the appellant, Roller Funeral Home of Mountain Home, Arkansas, to furnish the funeral services and supplies. Both appellants have essentially common ownership and officers, and a common telephone number in Mountain Home, Arkansas.
On December 25, 1976, Dorothy Mae Miller died and the appellants were notified by Kirby-Blevins Funeral Home that Kirby-Blevins Funeral Home had been selected by the family of the deceased to handle the funeral, and they were asked if any benefits under the $300.00 burial certificate would be provided. The appellants responded that no services or merchandise would be provided unless Roller Funeral Home was allowed to furnish the entire funeral services and merchandise. Kirby-Blevins Funeral Home then proceeded with the funeral arrangements.
On June 25, 1977, John E. Beam died, and on July 20, 1977, Pauline Iris Walton died. Notice of each death was given by Kirby-Blevins Funeral Home to the appellants, who again refused to provide any services or merchandise unless Roller Funeral Home provided the entire funeral services and merchandise. Kirby-Blevins Funeral Home again proceeded with the funeral arrangements.
The appellant, Drummond Citizens Insurance Company, filed a petition in interpleader and tendered into the lower court $400.00 on an insurance policy which is not in issue and named the two appellees as respondents. The appellee, Chester Sergeant, as executor of the estate of Dorothy Mae Miller counterclaimed for 1300.00 on the Miller burial certificate and the appellees, Elton Kirby and Alan Blevins d/b/a Kirby-Blevins Funeral Home, as assignees of the Walton and Bean burial certificates counterclaimed for $500.00 on each of those certificates. The appellant, Drummond Citizens Insurance Company, prayed for injunctive relief restraining Kirby-Blevins Funeral Home from advertising that it would give credit on all burial insurance policies, regardless of the company with which the policy was carried. The appellant, Roller Funeral Home, intervened in the case, and adopted the pleadings of Drum-mond Citizens insurance Company.
The lower court in its decree, dated October 26, 1977, referring only to the wording contained in the Miller burial certificate, found nothing in the certificates which provided that the burial association was not required to furnish benefits under the certificates unless it was allowed to furnish all of the funeral services through a director of its choice. It further found that the appellant, Drummond Citizens Insurance Company was not required to pay cash under these certificates to be used in purchasing services or merchandise from a funeral director not approved by the appellant, but having failed to furnish merchandise or services through its approved undertaker as provided in the certificate of a value equal to their face amounts, it was liable in case for the face amounts of the certificates. The lower court also denied any injunctive relief finding that appellants had failed to show by a preponderance of the evidence that the appellee, Kirby-Blevins Funeral Home, performed acts constituting unfair competition which resulted in any damage to the appellants.
The appellants have raised two points for reversal. First, the appellants contend that cash cannot be recovered under a burial certificate providing for a funeral service where the funeral service is tendered as provided in the contract; and secondly, that Kirby-Blevins Funeral Home should be enjoined from advertising that it will give full credit on burial certificates where the appellant, Roller Funeral Home, is designated to provide the funeral service.
The first contention must be placed in the context of the specific provisions of the three (3) burial certificates. The material portion of the by-laws in the Miller certificate reads as follows:
“4. When a member dies, the person in charge of the body shall at once notify the Secretary-Treasurer, who shall furnish the service and casket through an undertaker of his choice.
5. All members shall receive funeral, including services and casket in the amount specified in the class in which they held their benefit certificates.
The services and casket to members holding benefit certificates with the Baxter County Burial Association, shall be up to the standard of, and in keeping with the services and casket sold at similar prices by licensed embalmers and funeral directors of this and other towns in this territory. The funeral services to be furnished by this Association do not include any payment for any burial lot in any cemetery.
(a) If more expensive funeral than that furnished by the Association is desired, it may be arranged by the family of the deceased and the member’s benefit applied on payment of same.
(b) The relatives in charge shall have the privilege of embalming, selecting clothing and casket, or any other merchandise or service of the funeral director.”
In the Beam and Walton certificates, the material portion of the by-laws of the association contain the following language:
“Upon the death of a member of the Association, those in charge of the body of the deceased shall notify the Secretary-Treasurer, who shall have exclusive right to furnish funeral services and supplies, to be selected by those in charge of the body of the deceased and of the value equal to the face amount of the Membership Cer tificate, through a funeral director of the Secretary-Treasurer’s choice. Funeral services and supplies shall be furnished a deceased member of the Association wherever he or she may be, upon notice to the Secretary-Treasurer. If the funeral Director customarily employed by the association issuing this certificate cannot service the body of the deceased on account of the distance to be traveled, then the Secretary-Treasurer shall employ another funeral director who can service the body. No cash shall be paid to the family or those in charge of the body of the deceased, but all amounts for which the Association is liable shall be applied in payment to the funeral director for the funeral services and supplies furnished by him. In such instances, the minimum shall be 70 per cent of the face amount of the certificate. The Association will not be held liable for any funeral arrangements, services or supplies made or furnished by any other that the Secretary-Treasurer of the Association.”
We need not decide whether the apparent change in the association by-laws between the date of the issuance of the Miller burial certificate and the Beam and Walton burial certificates was binding on Dorothy Mae Miller, as that decision is not necessary to a decision in this case. We also note that Ark. Stat. Ann. § 66-1809, adopted as a part of Act 91 of 1953, provides that all burial associations shall have and maintain rules and by-laws as prescribed by the Burial Association Board. The record in this case does not reflect what by-laws were prescribed for burial associations at the time of the reinsurance contract or at the time of death of each of the certificate holders, so we need not decide whether any such prescribed by-laws were binding on these certificate holders. All the parties have placed reliance on the by-law provisions as previously set forth.
Burial associations arose out of the depression years in our country for the mutual benefit of those who desired assurance at a modest price that they would be given a decent and proper burial. The Baxter County Burial Association was incorporated in 1935. The one distinguishing and laudatory characteristic of these burial associations was that a person was guaranteed a complete and respectable funeral. Arkansas first recognized burial associations by statute through Act 264 of the 1933 Acts of Arkansas. In 1953, Act 91 of 1953, inter alia, created the Arkansas Burial Association Board, redefined a Burial association, and limited the amount of benefits provided to any member of an association to not more than $500.00.
As the cost of funeral services and merchandise increased over the years, the by-laws of the associations were changed so that many associations no longer guaranteed a complete funeral. This evolution can be recognized in the wording of the earlier Miller burial certificate as opposed to the wording in the later Walton and Beam burial certificates. A reasonable interpretation of the material portions of the Miller certificate indicates that a complete funeral was guaranteed by the burial association, including services and casket for the sum of $300.00. Although a $300.00 complete funeral is difficult to imagine in our present economy, this was the obligation of the association. However, in the certificates issued later by the association, the language indicated that a complete funeral was not intended, but that the association would have the exclusive right to furnish services and supplies of a value equal to the face amount of the certificate to be selected by those in charge of the body.
The appellants have placed considerable reliance on the case of Lowery v. American Burial Association, 70 So. 2d 38 (1954), from our sister state of Mississippi, involving a 1936 funeral benefit contract which provided a complete funeral valued from $35.00 to $125.00 depending on the number of years of membership in the burial association. In 1952, the contract holder died and the association agreed to furnish a complete funeral valued in the amount of the contract. However, the husband of the deceased used the services of a funeral home not authorized by the burial association and called upon the association to furnish a casket for his wife’s body. The policy provided that the policy amount could be used by the family in any way desired such as for casket, hearse service, embalming, etc. The court stated that it was plainly apparent that this contemplated that the benefits, whatever furnished, are required to be furnished through the facilities of the association, and since the association offered full performance of its contract by furnishing through its facilities a complete funeral, including casket, robe, and hearse service as valued in the contract, it was guilty of no breach of its contract.
We agree that the benefits both in that case and in the case at bar were required to be furnished through the facilities of the association. We do not agree, however, that the facilities of the association could not be used by the family of the deceased for the selection of funeral services or supplies up to the value of the policy, unless complete services were provided by the association. It should also be noted that the policy language in the Lowery case may be distinguished from the language contained in the Walton and Beam certificates as those later certificates do not provide for a complete funeral. We have reviewed the record before us in considerable detail, and the record is unclear as to whether the appellants tendered a complete funeral valued at $300.00 on the Miller certificate, but regardless, our decision on this point would remain unchanged.
This court has previously held that a burial association certificate is so similar to a policy of insurance that the recognized rules of construction governing such policies are applicable. Anderson v. Frank Reid Burial Association, Inc., 218 Ark. 817, 239 S.W. 2d 12 (1951).
It is our opinion that the by-law provisions in all three (3) certificates suffer from ambiguity, and in such circumstances, the court will adopt that interpretation which is most favorable to the insured or his beneficiary. 46 CJS Insurance Sec. 1468, p. 802; Woodman of the World Life Ins. v. Reese, 206 Ark. 530, 176 S.W. 2d 708 (1943).
A principal of insurance law firmly established in our state is that provisions contained in a policy of insurance must be construed most strongly against the insurance company which prepared it, and if a reasonable construction may be given to the contract which would justify recovery, it would be the duty of the court to do so. Traveler Indemnity Company v. Imogene Hyde, 232 Ark. 1020, 342 S.W. 2d 295 (1961).
It is a cardinal rule of insurance law that a policy of insurance is to be construed liberally in favor of the insured and strictly against the insurer or, as more fully stated, if the language employed is ambiguous, or there is doubt or uncertainty as to its meaning and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted. 44 CJS Insurance Sec. 297 c. (1), p. 1166; First Heritage Life Assurance Company v. James K. Butler, 248 Ark. 1164, 455 S.W. 2d 135 (1970).
A reasonable construction of the material provisions of the burial certificates would indicate that those in charge of the body have the right to select those funeral services and/or supplies of a value equal to the face amount of the certificate from the designated funeral home of the burial association or its assigns. We find no requirement in the certificate that the family or those in charge of the body must allow the funeral home so designated to furnish the complete funeral on penalty of forfeiture of all benefits.
The refusal of the appellant, Drummond Citizens Insurance Company, to provide services and merchandise to the extent of the value of the certificates constituted a breach of the contractual provisions. Although the certificates do not provide cash benefits, since the funeral services and merchandise have already been provided for the deceased certificate holders, monetary awards for the face value of the certificates are justified as the proper measure of damages for the contractual breach of each of the certificates.
The second point raised by the appellants is whether the lower court shall have enjoined Kirby-Blevins Funeral Home from advertising that it would give full credit on burial certificates where Roller Funeral Home is designated to provide the funeral service, or as restated by the appellants, that Kirby-Blevins Funeral Home should be enjoined from intentionally interfering with the contracts and business expectancies of appellants. The appellants state in their brief as follows:
Such advertising wrongfully deprives Appellant Roller Funeral Home of its vested right and business expectancy of providing the benefits under the burial certificates as well as depriving it of the business expectancy in furnishing merchandise and service over and above the amount of benefits provided in the policy or certificate involved.
Since it is our opinion that the Drummond Citizens Insurance Company, through its designated funeral home, Roller Funeral Home, had the contractual right and obligation to furnish benefits under the burial certificates to the extent of their face value, but did not have the contractual right to furnish merchandise and service over and above the amount of the benefits, such advertising by Kirby-Blevins Funeral Home does not interfere with any valid contractual right of the appellant, Roller Funeral Home. Certainly, the right of Roller Funeral Home to provide benefits to the extent of the value of the certificates is not compromised or endangered by this advertising as demonstrated by the request of Kirby-Blevins Funeral Home for benefits under the certificates. It is a fact of human nature, not susceptible of argument, that beneficiaries desire the benefits of insurance contracts. We feel confident that the appellants will be given the opportunity to provide all benefits as set forth in all the burial certificates which were reinsured by the appellant, Drummond Citizens Insurance Company.
We can understand the desire of appellants to furnish a complete funeral service at a cost in excess of the value of the burial certificates, but under the certificates, they neither have this right as a matter of contract, nor can they deny benefits because another funeral home is selected for additional services or merchandise.
An injunction is an extraordinary remedy, and like mandamus and prohibition, is one which is reserved for extraordinary circumstances. It is our opinion that an injunction should not be granted where the contract does not plainly confer the right to be protected, and, in this case, we find no contractual right that commands protection. Cf; 43 A CJS Injunctions, Sec. 90, p. 113.
The decree of the lower court is accordingly affirmed.
Fqgleman, Byrd and Purtle, JJ., not participating.
Special Justice G. B. Nance, Jr., joins in the opinion.
Harris, G.J., and Holt, J., dissent. | [
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John A. Fogleman, Justice.
Pursuant to a merger agreement entered into on December 1, 1974, the appellee, Carter Construction Company, Inc., acquired all of the assets of Carter and Cleaver Construction Company, Inc., on January 1, 1975. Both corporations were engaged in the construction business and therefore the assets acquired by the appellee, the surviving corporation, consisted primarily of heavy machinery and equipment. Prior to the merger, Carter and Cleaver had incurred a net operating loss of $95,182.80, which, had there been no merger, it would have been entitled to claim as a deduction in computing its net income for its 1975 Arkansas income tax return. Under the authority of Ark. Stat. Ann. § 84-2016 (1) (Supp. 1977), the appellee claimed this net operating loss carryover as a deduction from its net income.
Agents of the appellant, the Director of the Department of Finance and Administration, audited the 1975 income tax return filed by the appellee, disallowed the net operating loss deduction and assessed the appellee for additional tax due. The appellee appealed this determination and a hearing was held before the Arkansas Revenue Department Hearing Board, which sustained the disallowance of the appellee’s deduction. The appellee paid the deficiency under protest.
The appellee timely filed a complaint in the Chancery Court of Pulaski County to recover the amount of tax paid under protest, pursuant to Ark. Stat. Ann. § 84-2038 (Repl. 1960). The parties stipulated that the only issue for adjudication was whether appellee’s use of the assets acquired in the merger met the requirements of § 84-2016 (1) (3) (B), which governs the deduction of net operating losses incurred by acquired corporations. The relevant portion of the statute reads as follows:
. . . The Carryover losses will be allowed only in those cases where the assets of the corporation going out of existence earn sufficient profits in the post merger period to absorb the carryover losses claimed by the surviving corporation.
The merger met the requirements of that subsection.
Isaac Freeman Carter, Jr., president and chief executive officer of the appellee, testified that the equipment acquired in the merger was used in the day to day operations of Carter Construction Company, Inc., the records kept by the company did not reflect whether a particular piece of equipment had been utilized on a particular job and the appellee had not acquired any additional equipment since the merger. Carter stated that the equipment acquired in the merger was used on construction projects in 1975 and thereafter, “the same as equipment which was owned prior to the merger. ” During re cross examination, Carter said it would not be possible to document the amount of money earned by each piece of equipment.
The accountant for the appellee during 1974 and 1975, Harry C. Keaton, testified that the assets acquired in the merger represented 28.67 percent of the total assets owned by Carter Construction Company after the merger. Keaton arrived at this figure by dividing the original cost of the equipment which was transferred from Carter and Cleaver by the original cost of all the equipment owned by the appellee after the merger. Keaton said that by computing 28.67 percent of the total profit earned by the appellee in 1975, he was able to determine the pro rata share of profits which was attributable to the equipment obtained in the merger. As a result of this computation, Keaton determined that the pro rata share attributable to this equipment was $151,500.54. Keaton explained the use of this method, which he felt was an acceptable method, by looking to Ark. Stat. Ann. § 84-2065 (Repl. 1977), which is a section of the chapter dealing with the apportionment, for tax purposes, of the income of a company which transacts business in several states. The cost of property located within the state is one of the three factors used to determine the amount of income to be apportioned in each state and § 84-2065 provides in part that: “[property owned by the taxpayer is valued at its original cost.” Keaton stated that this was probably the only method “we could come up with” to allocate the profits because the cost of equipment is the principal item on any construction contract. He thought it was an acceptable method because it was the only method available.
On cross-examination, Keaton admitted that the percentage figures could be vastly different if the book value (original cost less accumulated depreciation) was used rather than original cost and some of the equipment was old and had been depreciated greatly, and therefore had a very low book value. Using the book value of the equipment, Keaton arrived at a figure of 15.1 percent as the percentage the Carter and Cleaver equipment comprised of all the equipment owned by the appellee after the merger. He said that there was no way to determine whether an older piece of equipment would generate the same amount of income as a newer piece of equipment, but that he thought that two comparable pieces of equipment would generate the same amount. Keaton said income, payroll and direct labor cost were some additional accepted procedures which could have been used to determine the percentage represented by the acquired equipment, but that such information was not available. He also stated that segregating the records would present an enormous accounting problem because the businesses had been operated as a single unit for three months when the controlling statute on a net operating loss carryover on merger was amended to its present form, and made effective January 1, 1975.
At the conclusion of Keaton’s testimony, the appellee rested its case and the appellant moved that the case be dismissed due to the insufficiency of the evidence, pursuant to Ark. Stat. Ann. § 27-1729 (Repl. 1962). The attorney for the appellee then stated that it was the appellee’s position that the testimony presented was sufficient to support a judgment in its favor and that the appellant had offered no evidence to rebut that offered by the appellee, and asked that the motion be denied and judgment entered in favor of the appellee for the stipulated amount. The court reminded the attorney for the appellee that if the motion were denied, the appellant might wish to offer some testimony at which time the attorney for the appellant said: “I stand on the Motion, Your Honor.” The trial judge then denied the motion of the appellant and entered judgment in favor of the appellee for the stipulated amount of $5,710.97, plus interest.
The final paragraph of § 27-1729 provides:
* * * If the motion be overruled, then the party filing the motion may save exceptions and proceed to take proof or elect to stand on his motion, and appear to the Supreme Court. In the event the motion is overruled and the party making it elects to stand on the motion and appeal to the Supreme Court and the Lower Court’s action in overruling the motion be affirmed, it shall constitute a final judgment in the case.
This court was first called upon to deal with this statute in Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225. In that case, a motion to dismiss had been sustained by the trial court and the plaintiff appealed. The appellant contended that it was only necessary that a plaintiff establish a prima facie case in order to defeat the motion, while the appellee contended that the judge was to weigh the evidence in ruling on the motion. In reversing the trial court, we said:
* * * By the overwhelming weight of authority it is the court's duty, in passing upon either a demurrer to the evidence [now referred to as a “Motion to dismiss for insufficiency of the evidence” in Arkansas practice] or a motion for judgment in law cases tried without a jury, to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence when so considered fails to make a prima facie case. * * *
In Crump & Rodgers Co. v. Southern Implement Co., Inc., 229 Ark. 285, 316 S.W. 2d 121, it was said: “So, under the rule of Werbe v. Holt, we give the appellee’s (plaintiff’s) case its strongest probative force; and if there be any substantial evidence to support the decree of the Chancery Court, then we must affirm.”
Even though appellee had the burden of proving clearly that he was entitled to the exemption, when we apply the above principles to the facts of this case and give the evidence its strongest probative force in favor of the appellee, we cannot say that there is no substantial evidence to support the chancellor’s decision and affirm his decree. We do not view the matter as we would had appellant rested without offering any evidence after his motion was denied. The chancellor was not permitted to weigh the evidence when the appellant chose to stand on his motion. Carter had testified that: the acquired equipment was used in the daily operations of the appellee; it would be impractical, if not impossible, to maintain records of which piece of equipment worked on which jobs; and it would be impossible to determine the amount of income each individual piece of equipment had earned. Keaton testified that: he had used the only acceptable method available to him'to determine the pro rata share of income earned by the acquired equipment; the use of the original cost of property rather than the book value was required by the Arkansas Statutes in the division and apportionment of income earned by multi-state corporations; and the information necessary to use one of the other methods to arrive at a pro rata share attributable to the appellee was not available to Keaton. In light of the foregoing testimony, we find substantial evidence to support the chancellor’s decision that the appellee had presented a prima facie case to prove that the equipment acquired by the appellee in the merger with Carter and Cleaver had generated income of $151,500.54, an amount sufficient to absorb the carryover net operating loss of $95,182.80 claimed by the appellee and therefore affirm the judgment.
Harris, C.J., dissents.
Carleton Harris, Chief Justice, dissenting. The statute provides:
In the case of the acquisition of assets of one domestic corporation by another domestic corporation, the acquiring corporation shall succeed to and take into account any net operating loss carryover that the acquired corporation could have claimed had it not been acquired, subject to the following conditions and limitations:
A. The net operating loss may not be carried forward to a taxable year which ends more than three years after the taxable year in which the loss occurred.
B. The net operating loss may be claimed only when the ownership of both the acquired and acquiring corporations is substantially the same; that is, where not less than eighty per cent (80%) of the voting stock of each corporation owned by the same person or persons. The carryover losses will be allowed only in those cases where assets of the corporation going out of existence earn sufficient profits in the post-merger period to absorb the carryover losses claimed by the surviving corporation. (My emphasis.)
I do not think the evidence submitted by appellee satisfied the condition which I have italicized. Carter testified that the assets acquired from Carter and Cleaver Company were used daily in the operation of appellee’s business and used on construction jobs in 1975. However, on cross- examination, it developed that there was no distinction made as to how much of the Carter-Cleaver assets were used after the merger; further, there was no knowledge of what equipment was used on a particular job. There were no separate records or documents reflecting how the assets were used by appellee prior or subsequent to the merger. Also, it would be impossible to determine how much money had been earned by the Carter-Cleaver assets, and how much money was produced by each piece of that equipment.
Appellee’s accountant testified as to the method he used to allocate the profits generated by the assets acquired by appellee from Carter and Cleaver Construction Company, and he said this method was acceptable because it was the only method available and because the state used the same basis in allocating profit between in-state and out-of-state income. However, he agreed that there were other acceptable accounting procedures that could have been used, but stated, “We did not have that information,” and he added that it would have been an enormous accounting problem to endeavor to segregate the records, and accordingly, would not have been practical.
I simply say that, irrespective of the reasons given, appellee did not demonstrate its entitlement to a tax deduction under the statute, and, of course, the burden was on appellee to clearly establish same.
I, therefore, respectfully dissent. | [
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George Howard, Jr., Judge.
Appellant was convicted on April 29, 1977, in the Municipal Court of Monticello, of driving while under the influence of alcohol. An appeal was taken immediately to the Circuit Court of Drew County.
The criminal docket of the circuit court reflects that on September 19, 1977, appellant’s case was set for trial on September 26, 1977, and that appellant was advised by the court to notify his attorney of the trial date. The appellant nor his attorney appeared for the trial. Moreover, the docket does not reflect any action whatsoever by the court on appellant’s case on September 26, 1977. Appellant claims, however, that his attorney requested a continuance by telephone and letter. The docket does not indicate that either a continuance was requested or granted.
The docket reflects that on September 18, 1978, the circuit court affirmed appellant’s conviction. It is clear that appellant and his attorney were not present on September 18, 1978.
On January 17, 1979, appellant’s attorney received written notice of the “call of the docket” scheduled for February 1, 1979.
On February 1, 1979, appellant appeared for trial, but the court entered an order remanding the case to the municipal court upon discovering that his predecessor had affirmed appellant’s conviction as reflected by the docket entry of September 18, 1978.
For reversal, appellant asserts two points. First, appellant contends the municipal court erred in receiving testimony regarding a blood alcohol test without first having been assured that the analysis was performed according to a method approved by the State Board of Health.
Inasmuch as this issue was never considered by the circuit court, it is plain that there is no basis for appellate review of this issue.
Secondly, appellant claims that the action of the circuit court on September 18, 1978, resulting in the affirmance of his municipal court conviction denies him due process of law in view of the fact that appellant and his attorney were not properly notified of either the September 26, 1977, or the September 18, 1978, scheduled hearings.
The State argues that inasmuch as appellant was advised on September 19, 1977, that his case would be tried on September 26, 1977, and was further directed to notify his attorney of the trial date, the circuit court had the option of affirming the municipal court’s conviction at anytime, without notice, because of appellant’s failure to appear.
While Ark. Stat. Ann. §44-507 (Repl. 1964) authorizes a circuit court to affirm a judgment of a lower court if the appellant fails to appear when his case has been scheduled for trial, due process dictates that appellant be afforded proper notice and an opportunity to be heard in a proceeding involving the deprivation of life, liberty or property. Renfro v. City of Conway, 260 Ark. 852, 545 S.W. 2d 69. Moreover, Ark. Stat. Ann. §22-311 (1962 Repl.), requires that interested parties as well as their attorneys receive notice from the clerk of the court of proceedings scheduled; and that time shall be afforded counsel to prepare for trial.
We conclude that the oral notice given by the circuit court to appellant on September 19, 1977, that the case would be tried on September 26, 1977, did not comply with the requirements of Ark. Stat. Ann. §22-311 (Repl. 1962) and the requirement of due process under the Fourteenth Amendment to the United States Constitution. See: Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729 (1975).
The record reflects that the trial court manifested some uncertainty as to his power to set aside the order affirming appellant’s conviction. The Arkansas Supreme Court made it clear in Swagger v. State, 227 Ark. 45, 296 S.W.2d 204 (1965) that where a judgment is void because of want of due process of law, the judgment has no force and effect and can be vacated at any time.
Reversed and remanded to the circuit court for proceedings not inconsistent with this opinion.
Rule 4 of the Uniform Rules for Circuit and Chancery Courts provides, in part:
b. As soon as a circuit court trial docket is set for any given date or dates, but not later than 15 days prior to the date of trial, the Clerk shall forthwith make copies of the same, showing the case number, the style, the attorneys and the date for which each case is set. Copies shall be furnished all attorneys of record. | [
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PER CURIAM
Petitioner was convicted by a jury of rape on February 24, 1970, and was sentenced to be executed. On December 24, 1970, this sentence was commuted to life imprisonment by the Governor. We affirmed, Scott v. State, 249 Ark. 967, 463 S.W. 2d 404(1971). On June 11, 1976, petitioner filed a petition for permission to proceed in circuit court under Arkansas Criminal Procedure Rule 37 for postconviction relief. We denied his petition for postconviction relief:
Petitioner raises the following grounds for postconviction relief:
(1) racial discrimination was involved in the selection of the jury panel; (2) racial prejudice at the time of the trial mandated a change in venue; (3) weapons obtained by an unreasonable search and seizure were improperly admitted at trial; (4) the jury was erroneously instructed on pardons and paroles; (5) trial counsel was ineffective in failing to adequately investigate and prepare for trial, failing to move for a change of venue, and failing to challenge the racial composition of the jury.
He asks us to waive the portion of Rule 37 which provides that all grounds for relief must be raised in one petition. He contends that the sole point alleged in the previous petition, the racial composition of the jury panel, was raised on appeal in only one sentence and was presented in a general and conclusory manner in the prior petition. He argues that we should find this issue to not have been “finally adjudicated.” He also asserts that although his other grounds were not raised in the previous petition, we should find that these issues were “inadvertantly neglected” by the attorney who drafted that petition. The petition in the present matter was filed by a law student under supervision.
Rule 37.2(b), Rules of Criminal Procedure (1976), states:
All grounds for relief available to a prisoner under this rule must be raised in his original or amended petition. Any grounds not so raised or any grounds finally adjudicated or intelligently and understanding^ waived in the proceedings which resulted in the conviction or sentence or any other proceedings that the prisoner may have taken to secure relief from his conviction or sentence may not be the basis for a subsequent petition.
The first postconviction petition alleged that “black citizens were intentionally and systematically excluded from service on the jury ’ ’ in violation of petitioner’s constitutional rights. This allegation was initially raised on appeal. Since the record was void of any reference of discrimination, we declined to speculate on the racial composition of the jury panel. When the issue was again raised in the first postconviction petition, we found that not only had this point been raised and decided adversely to petitioner on appeal, but that it was still being raised in conclusory terms without supporting facts or evidence. We note that two more of petitioner’s present allegations were addressed on appeal and rejected. Counsel had argued that the trial court should have recognized the racial prejudice and hatred the community was experiencing and ordered a change of venue to insure a fair trial. We refused to speculate since there was nothing in the record to support the allegations. We also considered the circumstances surrounding the search that resulted in the seized weapons and concluded the search was reasonable.
Petitioner’s petition for postconviction relief is denied. Rule 37 clearly provides that a prisoner will not be allowed to file subsequent petitions unless his petition falls within the specified exceptions. This petition does not meet those requirements. Petitioner has had two full opportunities to present his allegations to us. Each time he was represented by counsel. Petitioner has failed to satisfactorily show why his attorney could not have raised the allegations in his first postconviction petition. Thus, we see no need to go behind the rule to allow this subsequent petition because petitioner has failed to clearly demonstrate manifest injustice resulting from his several opportunities for redress.
Furthermore, this petition was not filed within three years from the date of commitment as required by Criminal Procedure Rule 37.2(c). The rationale for the provision is clearly demonstrated in this case since we note that the attorney who represented petitioner at trial and on appeal and the circuit judge who presided at the trial are both dead.
Accordingly, the petition for permission to proceed in circuit court under Criminal Procedure 37 is denied.
Petition denied. | [
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George Howard, Jr., Judge.
The appellant was acquitted, by a jury, of aggravated robbery, but was found guilty of interfering with a law enforcement officer. Appellant received a five-year term to the Arkansas Department of Correction and a fine of $1,000.00.
For reversal, appellant claims his conviction is not supported by substantial evidence.
The facts are: Appellant was observed by Officer L. V. Collins, City Marshal of London, carrying a 30-30 rifle and refused to surrender the rifle to Officer Collins. Appellant directed Officer Collins to stand back or appellant would kill him. Appellant proceeded to a local grocery store and at tempted to obtain ammunition which served as the basis for the aggravated robbery charge.
Subsequently, two Pope County Deputy Sheriffs who had been summoned by Officer Collins to assist him were fired upon by appellant when the deputy sheriffs approached appellant and ordered him to surrender. The refusal of the appellant to submit either to the demands of Officer Collins as well as the deputy sheriffs constitutes the basis of the charge of interfering with a law enforcement officer.
It is undisputed that neither Officer Collins, nor the deputy sheriffs were seeking to serve any legal processes upon anyone, not even appellant, but their prime concern was to induce the appellant to surrender his rifle and to submit to arrest.
The applicable statute provides:
A person commits the offense of interference with a law enforcement officer if he knowingly employs or threatens to employ physical force against a law enforcement officer engaged in performing his official duties.
We are persuaded that Breakfield v. State, 263 Ark. 398, 566 S.W. 2d 729 (1978) is dispositive of the issue before us. The Arkansas Supreme Court said in Breakfield:
Criminal statutes must be strictly construed with doubts being resolved in favor of the defendant . . . Applying this standard to this case and considering the evidence, we do not find substantial evidence to support the conviction of Breakfield for interfering with a police officer in the performance of his duties. Breakfield should have been charged with resisting arrest, or disorderly conduct, or both. However, those charges are not before us.
Reversed and remanded.
Wright, C. J., and Hays, J., dissenting. | [
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George Bose Smith, Justice.
More than a year after the three appellants bought a Dodge car from an automobile dealer the vehicle was heavily damaged in a collision. The purchasers then learned that the collision insurance upon the car, which had been cancelled by the insurance company several months earlier, had not been replaced. Upon being sued for the balance due on the conditional sales contract the purchasers filed a cross complaint against the appellee, Worthen Bank & Trust Company, asserting that the bank, which had financed the sale, had been at fault in failing to obtain a substitute policy of collision insurance when the first one was cancelled. This appeal is from a judgment sustaining a demurrer to the cross complaint and dismissing it.
The essential facts are simple. The appellants bought the car from Bevis Dodge on April 12, 1966, executing a conditional sales contract for a deferred balance of $3,600.36, payable in 36 monthly installments. That balance included a charge of $323.00 for insurance on the car. The contract also contained this paragraph relating to insurance:
Any sums spent by seller for insurance or taxes on the purchased property... will be repayable by buyer (with interest on each expenditure from the date thereof at 6% per annum); which reimbursable items will be added to and constitute a part of the Deferred Balance. If requested by seller, buyer will carry insurance upon said property for the full insurance value thereof the policy or policies (showing loss payable to seller as its interest may appear) to be delivered to and held by seller; and selle]' may apply any insurance proceeds upon the amount then owing hereunder in inverse order of maturity.
The contract, which was on the bank’s printed form, was assigned to the bank by Bevis Dodge, with recourse. On December 2, 1966, the collision insurer cancelled its policy for an undisclosed reason and sent the unearned premium of $238.60' to the bank. The bank simply held the money, making no attempt .either to obtain substitute insurance or to pay the money to the purchasers. The car was damaged in a collision on May 19, 1967. On July 26, 1967, the bank applied the refunded premium to the principal debt and reassigned the contract to Bevis Dodge, who sold the car for salvage and brought this action for the unpaid balance of $1,670.44. The purchasers admitted, for the purposes of the demurrer to their cross complaint, that they knew of the cancellation of the policy and made no demand upon the bank to refund the premium or to purchase new insurance.
Counsel for the bank, citing Providence Wash. Ins. Co. v. Ark. Farm Bureau, Finance Co., 221 Ark. 327, 253 S.W. 2d 226 (1952), insist that although the bank had the right to obtain insurance on the car it was under no duty to do so. Hence it is argued that the purchasers’ cross complaint did not state a cause of action.
That argument is not sound when, as here, the buyer’s obligation includes the full amount of the insurance premium for the entire term of the contract. The point was decided in Dahlhjelm Garages v. Mercantile Title Ins. Co., 149 Wash. 184, 270 P. 434 (1928), in this language :
The second objection is that the contract does not impose a mandatory duty to keep the automobile insured against injury by collision upon the appellant or its assignors. This objection has its foundation in the language used in the quoted part of the contract. It will be noticed that the language is that the seller may keep the automobile insured, not that it must do so. But it will be remembered that the seller exacted and was paid, in addition to the purchase price of the automobile, a stated sum for the very purpose of keeping it insured. If its obligation would have been otherwise optional, it became absolute when it made this exaction.
To substantially the same effect see Minor v. Universal C.I.T. Credit Corp., 27 Ill. App. 2d 330, 170 N.E. 2d 5 (1960); Liretta v. Menard, La. App., 20 So. 2d 382 (1945); and Smith v. Hellman Motor Corp., 122 Misc. Rep. 422, 204 N.Y.S. 229 (1924).
The case comes to us on demurrer, with all inferences to be resolved in favor of the cross complainants. We are unwilling to say that under the affirmative allegations of the purchasers there is no issue of fact with respect to the bank’s duty to obtain new insurance coverage or to afford the purchasers the opportunity of doing so.
Reversed and remanded with instructions to overrule the demurrer.
Byrd, J., dissents. | [
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George Rose Smith, Justice.
Our compensating (or use) tax law contains an exemption for machinery that is directly used in manufacturing. Ark. Stat. Ann. § 84-3106 (D) (2) (Supp. 1977). The appellee Hummelstein buys and sells scrap metal. The state revenue department ruled that Hummelstein’s machinery is subject to the tax, for the reason that Hummelstein is not engaged in manufacturing. The appellee paid the tax under protest and brought this suit for recovery. This appeal is from a decree holding that Hummelstein is a manufacturer and is therefore entitled to claim the exemption.
The appellee buys scrap metal in many forms, but in the testimony the clearest description of its operation relates to its handling of old cars, which it buys in great numbers. After the non-metallic materials, such as rubber and upholstery, have been removed from an old car, the engine block (for which there is a separate market) is pulled out. The remaining metal parts are then separated according to their nature, such as steel, iron, aluminum, brass, and copper. Dirt and other foreign matter must be removed. Large parts of a car, such as its steel body, are cut into pieces small enough to be separated by hand according to the grade of the particular metal. (Number two heavy melting steel is mentioned in the testimony as one grade.) The various metals and grades are then compressed into cubes or bales that may weigh as much as eight or nine hundred pounds. Steel, for example, is compressed into cubes small enough to go into the furnace doors at steel mills, where the scrap metal is to be made into new steel products. The bales or cubes of scrap metal are what the appellee sells to its customers.
Under the statute and our earlier cases the appellee cannot be classified as a manufacturer. The statute refers both to “manufacturing” and “processing,” § 84-3106 (D) (2) (e), but it is settled that “manufacturing and processing are not two distinct operations and that a taxpayer, in order to be entitled to the exemption, must first qualify as a manufacturer.” Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W. 2d 953 (1976). That holding is sound, for we have pointed out that “processing” is such a flexible term that it might be applied to such simple matters as washing potatoes preliminary to placing them in sacks or removing stems from strawberries. Scurlock v. Henderson, 223 Ark. 727, 268 S.W. 2d 619 (1954).
Thus the question is not whether the appellee is engaged in “processing” but whether it is engaged in “manufacturing,” which our statute declares is to be understood in its ordinary meaning. § 84-3106 (D) (2) (e), supra. Cases from other jurisdictions are of scant assistance, because their statutes differ from ours. Our own precedents, however, are controlling.
We are unable to distinguish the case at bar, in principle, from our decision in Scurlock v. Henderson, supra. There the question was whether cotton ginning machinery was exempt under the statute as it then read, which exempted “tangible personal property used by manufacturers or processors or distributors for further processing, compounding, or manufacturing ...” Act 487 of 1949, § 6. The parallel between that case and the present one is very close. There we noted that a ginner removes trash from the cotton. Here the appellee removes dirt from its scrap iron. We noted that a ginner separates the cotton fiber from the cotton seed. Here the appellee separates the various metals from one another. We alluded to the fact that a ginner compresses the cotton into bales. Here the appellee compresses the scrap metal into cubes that are salable. We concluded that cotton ginning machinery was not exempt from the tax, because “ginning is not processing or manufacturing. ” The controlling principle, as we see it, is simply that the cotton ginner begins and ends with the same commodity, cotton, in an unmanufactured form, just as the appellee begins and ends with scrap metal that is yet to be made into something else.
The appellee relies upon our holding in Ark. Ry. Equipment Co. v. Heath, 257 Ark. 651, 519 S.W. 2d 45 (1975), where we held that a company which bought old railway tank cars and converted them into highway culverts was engaged in manufacturing. We stressed the complexity of the steps that were required to convert the tank cars into culverts and the fact that a different product was being created. We concluded that the taxpayer was in fact “a manufacturer of culverts.” Here, by contrast, we cannot say that the appellee is a manufacturer of scrap metal, because that is what it begins, with and what it ends with. It changes the form of scrap metal, but it does not make a new product.
It must be remembered that the appellee is seeking an exemption from the tax. We have consistently followed the rule that “an exemption from taxation must be strictly construed and to doubt is to deny the exemption.” Morley v. E. E. Barber Constr. Co., 220 Ark. 485, 248 S.W. 2d 689 (1952). The appellee has failed to meet its burden of showing clearly that it is engaged in manufacturing and is therefore exempt from the tax.
Although not argued in the briefs, the suggestion has been made in our 'discussion of the case that the scope of the exemption has been broadened by amendment since our decision in the cotton ginning machinery case. Actually, the exemption has been narrowed. As mentioned above, the original exemption was of “tangible personal property used by manufacturers or processors or distributors for further processing, compounding, or manufacturing.” By Act 5 of the First Extraordinary Session of 1968, § 2, the exemption was rewritten to read essentially as it does today. What the amendment did was to limit the exemption to machinery and equipment used directly in the various stages of manufacturing “at manufacturing or processing plants or facilities in the State of Arkansas.” We quote the pertinent part of the exemption as rewritten in 1968:
(2) Machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing or packaging articles of commerce at manufacturing or processing plants or facilities in the Stale of Arkansas [italics supplied], but only to the extent that such machinery and equipment is purchased and used for the purposes set forth in this subsection.
* * * * *
(c) It is the intent of this subsection to exempt only such machinery and equipment as shall be utilized directly in the actual manufacturing or processing operation at any time from the initial stage where actual manufacturing or processing begins through the completion of the finished article of commerce and the packaging of the finished end product. The term “directly” as used in this Act is to limit the exemption to only the machinery and equipment used in actual production during processing, fabricating or assembling raw materials or semi-finished materials into the form in which such personal property is to be sold in the commercial market. Hand tools, buildings, transportation equipment, office machines and equipment, machinery and equipment used in adninistrative, accounting, sales and other such activities of the business involved and all other machinery and equipment not directly used in the manufacturing or processing operation are not included or classified as exempt.
The purpose of the 1968 amendment is perfectly clear. The original act, by exempting all tangible personal property used by manufacturers, could arguably have exempted office furniture, typewriters, automobiles, and various other personal property not used directly in the manufacturing process. The amendment limited the exemption to machinery and equipment used directly in manufacturing, but it still has to be used “at manufacturing or processing facilities.” Thus the basic question is precisely the same as it was in the cotton ginning machinery case: Is this taxpayer engaged in manufacturing? Upon the authority of that decision the answer must be No.
Reversed.
Bya typographical error the word “at” was written as “and” when the subsection was re-enacted in Act 760 of 1975, § 2, which added an exemption of poultry processing equipment, but the fact that “and” was a typographical error is apparent not only from the context but also from the correct use of “at” in the corresponding sentence in § 1 of the same act, dealing with the sales tax instead of the use tax. | [
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Prank Holt, Justice.
This controversy results from an annexation dispute. In this original proceeding the petitioner seeks a writ of prohibition to restrain the respondent from entertaining appeals by certain citizens and taxpayers from a county court order which granted the annexation of a contiguous territory to the City of El Dorado.
The city’s petition for the annexation, based upon prior approval of the qualified voters, was filed in the Union- County Court on December 19, 1967. The first order for annexation by the county court was made on January 29, 1968. On April 19, 3968, the county court rendered a nunc pro tunc amendment to that order for annexation. This corrected an erroneous description and excluded a small strip of land owned by the petitioner. The objecting taxpayers first filed an affidavit for appeal as aggrieved parties on May 15, 1968, from the April nunc pro tunc order. Then, on June 10, the taxpayers filed an affidavit for appeal as aggrieved parties from the January order for annexation. Both appeals were granted by'the Union County Court to the circuit court by orders dated May 15 and June 10, 3968, respectively. The respondent, Union Circuit Court, Second Division, consolidated the appeals and denied petitioner’s motion to dismiss the appeals and strike the affidavits for appeals. Also denied was a similar motion by the City of El Dorado. Tire petitioner asserts that unless the respondent circuit court is prohibited and restrained, it will entertain both appeals from the county court’s order which annexed the contiguous territory to the City of El Dorado. The petitioner contends that neither appeal was timely filed because the appeals failed to comply with the thirty-day requirement as provided in Ark. Stat. Ann. § 19-307 (Eepl. 1968). It is also petitioner’s position that the nnnc pro tunc order did not extend the thirty-day period and cites Richardson v. Sallee, 207 Ark. 915, 183 S.W. 2d 508 (1944) to that effect.
It is the taxpayers’ (appellants from the county court order) position that both appeals were timely filed and that the county court’s annexation order should be reversed and made to include the small strip of land which was excluded. They rely upon Ark. Stat. Ann. § 27-2001 (Supp. 1967) which provides that appeals are granted as a matter of right to the circuit court from all final orders or judgments of the county court at any time within six months. See, also Pike v. City of Stuttgart, 200 Ark. 1010, 142 S.W. 2d 233 (1940); Jones v. Coffin, 96 Ark. 332, 131 S.W. 873 (1910). It is argued that this particular statute is applicable in the case at bar because their appeals are not complaints to prevent annexation. To the contrary, the purpose of their appeals is to affirm the annexation of the entire contiguous area which, therefore, would include petitioner’s lands.
It is, of course, settled law in our state that when a trial court is proceeding in a matter where it is entirely without jurisdiction, then the supreme court, in the exercise of its supervisory control, has the authority to prevent the unauthorized proceeding by the issuance of a writ of prohibition. Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, 229 S.W. 59 (1920); Norton v. Hutchins, Chancellor, 196 Ark. 856, 120 S.W. 2d 358 (1938). It is, however, a well established rule that the extraordinary writ of prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction unless the tribunal is wholly without jurisdiction or is threatening to act in excess of its jurisdiction. Bassett v. Bourland, 175 Ark. 271, 299 S.W. 14 (1927). A writ of prohibition will not lie where the jurisdiction of the trial court depends upon a question of fact. Coley v. Amsler, Judge on Exchange, 226 Ark. 492, 290 S.W. 2d 840 (1956).
In the case at bar we are unable to determine from the meager transcript whether the litigants who appealed to the circuit court really had a grievance that could be presented by an appeal rather than by a separate complaint filed originally Avithin thirty days, in the circuit court. Therefore, we are unable to say that the circuit court is without jurisdiction. Writ denied.
Byrd, J., concurs. | [
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John A. Fogleman, Justice.
Arguss Case suffered a com-pensable injury when he fell at least 25 feet from the fourth floor of a building in the course of his employment by Pickens-Bond Construction Company. The original injury occurred on or about February 2, 1973. On or about November 1, 1973, appellant slipped and fell and suffered a broken hip as he was walking across the floor on his crutches while attending a rehabilitation orientation. At a hearing before an administrative law judge, Case sought: a 15% penalty on account of the alleged violation of safety regulations under the United States Occupational Safety & Health Act of 1970; nursing services and related expenses; reimbursement for travel expenses; the provision for special appliances and improvements to his home to facilitate his daily activities, an increase of compensation from $49 to $66.50 per week from the time of the second injury; reimbursement for expenses incurred in connection with acupuncture treatments; and attorney’s fees on all such items, on the allegation that appellant had controverted all of them.
Upon appeal, the full commission held that:
Case was entitled to nursing services; his wife had adequately provided these services; Mrs. Case was entitled to compensation at the minimum wage rate for 24 hours a day, seven days a week from May 10, 1973 to May 15, 1974, except for a period of hospitalization; Case was entitled to continued nursing services by his wife for which she should be compensated at the minimum wage rate in Arkansas for 16 hours a day, seven days a week, beginning May 15, 1974, but that Case no longer needed nursing services for 24 hours per day; the hourly rate of compensation shall be increased as the minimum wage is increased; appellants should provide a whirlpool bath and seat and a lower extremity resistive exercise table and a hot water tank and housing adequate for the whirlpool equipment; appellants were liable for travel expenses between Case’s home and the places he received medical treatment or physical therapy, except for a trip for acupuncture treatments; maximum attorney’s fees were allowed upon controverted items.
Both parties appealed from the commission’s decision, but it was affirmed by the circuit court. Both parties appeal from the judgment of the circuit court. Appellants rely upon the following points for reversal:
I
A WORKMEN’S COMPENSATION CLAIMANT’S WIFE IS NOT ENTITLED TO BE COMPENSATED FOR ORDINARY SERVICES RENDERED HER INJURED HUSBAND AND THE COMMISSION’S AWARD OF REMUNERATION TO MRS. ARGUSS CASE WAS NOT JUSTIFIED BASED UPON THE EVIDENCE PRESENTED.
II
THE COMMISSION’S FINDING THAT PORTIONS OF THE AWARD HAD BEEN CONTROVERTED WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
I
Appellants state that, based upon the evidence, the award for Mrs. Case for nursing services is unreasonable and that this portion of the award should be remanded for further consideration or dismissed. We can find no basis for dismissal, and no necessity for remand.
Ark. Stat. Ann. § 81-1311 (Repl. 1976) requires that the employer provide nursing services for an injured employee. In Sisk v. Philpott, 244 Ark. 79, 423 S.W. 2d 871, we sustained the award of compensation for nursing care by a relative. In Dresser Minerals v. Hunt, 262 Ark. 280, 556 S.W. 2d 138, we approved an award for the nursing services of a wife. We do not agree with appellants’ contention that Mrs. Case’s entitlement to compensation for nursing services for caring for her injured husband, or the liberal allowance for the period between May 10, 1973 and May 15, 1974, was not supported by substantial evidence, but we do agree that the allowance of compensation for a wife taking care of her husband, on the basis of 16 hours per day, beginning May 15, 1974, is unreasonable and not supported by substantial evidence.
As a result of his injuries, Case suffered sphinctive difficulties. When he was released from the hospital on May 10, 1973, he was in full control braces. Although he was able to walk without the bracing, he could not do so effectively. A catheter had been removed only two days earlier, but he continued to be incontinent of feces, for sometime. He was required to continue physical therapy twice a week as an outpatient. He had a post-phlebetic syndrome with some swelling. He was able to walk on crutches to some extent, but a wheelchair was required when he tired. After he was released, he experienced a urinary infection. He was able to do without a catheter but experienced involuntary micturation, and his difficulty in voiding continued for quite a while.
Although 18 months is normally considered as the period of potential healing where spinal cord injuries are concerned, his neurological improvement after four months was not satisfactory. Six months after the injury, he had no functional use of his legs from the knee down. There was weakness in his hips and he felt that the left hip socket tended to dislocate at times. Outpatient therapy with electric muscle stimulation two or three times per week was later prescribed. On November 1,1973, when Case fell, he sustained a fracture of the left femoral neck. Surgery was required and when he was discharged from the hospital he was instructed in non-weight bearing, walker ambulation and wheelchair use. Resumption of physical therapy was recommended. There was some retrogression in respect to bladder function, because catherization was again required in this later hospitalization. He seemed to reach a plateau about the middle of January, 1974, and a return to use of surgical elastic hose was recommended because of numbness in his feet and increased edema in the lower left extremity.
Case was returned to the hospital for one week in January, 1974, because of acute thrombophlebitis in this leg. He was discharged on anticoagulants and medication for blood count. Physical therapy to strengthen the muscles of his lower extremity and back were continued. When examined in April, 1974, he reported that he was doing quite well, except for a popping sensation from the left hip, which was neither painful nor annoying, when he did situps with someone holding his legs. He reached the end of his healing period in May, 1974, with a permanent physical impairment of the body as a whole, amounting to 80% to 95%, with chronic thrombophlebitis of the left lower extremity which would, if anything, increase his impairment. By December 5, 1974, Case was able to walk with a waddling gait with motor paralysis primarily in the muscle of the thigh. He still wore braces on both lower extremities and was emptying his bladder by use of the Crede maneuver.
Prior to May 29, 1975, Case had undergone 47 acupuncture treatments in Washington, D.C., but his feeling of relative improvement thereafter could not be objectively substantiated. Thereafter, he received additional acupuncture treatments, which improved his confidence in his walking, but his neurosurgeon found no objective evidence of improvement in motor or sensory function. In March, 1976, Case was suffering itermittent pain in his left hip region. He continued to have problems of urinary incontinence, but was free of infection. He required frequent changing of undergarments in much the same way one would care for a newborn infant. He was still wearing short leg braces in March, 1978, and walking on the inside of his foot.
Mrs. Case was given instructions on exercising her husband while he was in the hospital after he suffered the hip fracture. After 11 weeks in the hospital, Case could only sit up for short intervals and had to remain in bed and had to eat in bed part of the time. Mrs. Case had to help him turn over in bed every two hours for about two months. She had to bathe him, and remove and replace his full body brace at least twice a day. It was two or three months before he was able to leave the house and she stayed with him except for short periods when she did such things as grocery shopping. After his hip injury, he had to stay off his leg for 12 or 13 weeks. At the time of the hearing, he still had a problem with his bowels and bladder. He used a walker in the house, but used crutches when walking outside. After he walked a block, he had to stop and rest. He could bathe himself but his wife had to dry him afterwards. She drove the car when they went anywhere. He could go upstairs by use of a handrail, but since he needed someone behind him in case he fell because of poor balance, she followed him sometimes. He wears rubber pants, which he can remove, but she has to help him put them on. She still helps him with one of his exercises. Mrs. Case usually goes with him whenever he leaves home to help him through doors, but he walks in the yard alone. She was not administering any medicine, as he was not taking any. Her help was primarily in getting things for him and helping him get around.
He spent one month in Washington D.C., in April, 1975, taking acupuncture treatments. He returned home for a week and then went back for an additional month, for more treatment. Mrs. Case went with him on the first trip, but not the second. The first time she shopped for groceries and changed his bed if he had “accidents.” The acupuncture center was in the motel where Case stayed and he was able to get along without his wife on the second trip. When he needed things away from the motel, either a bellboy or another patient got them for him. He is now able to walk around the house with the aid of only one ordinary walking cane. Mrs. Case still helps Case get his clothes and, when he has an “accident” at night, she changes his bed and pajamas.
In the opinion of a physical therapist who worked with Case and who testified on his behalf on March 4, 1975, the claimant was then able to do his own preparation for bowel and bladder care arid did not need someone in his presence in the house at all times. He said that when Case came out of the whirlpool bath, he could dry himself except for his ankles, feet and buttocks. He felt that Case could take care of himself after bowel and bladder accidents in his own home, with some degree of difficulty.
In approaching the question of substantiality of evidence, it is sometimes difficult to strike a balance between accepting any evidence as substantial evidence and weighing the evidence. “Any” evidence is not substantial evidence. St. Louis S. W. Ry. Co. v. Braswell, 198 Ark. 143, 127 S.W. 2d 637. Bare conclusions, without supporting facts, are not substantial evidence. Arkansas State Highway Com’n. v. Carruthers, 246 Ark. 1035, 441 S.W. 2d 84. Substantial evidence is valid, legal and persuasive evidence. Arkansas Pollution Control Com’n. v. Coyne, 252 Ark. 792, 481 S.W. 2d 322. “Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” as stated by the Court of Appeals for the Eighth Circuit. See NLRB v. Arkansas Grain Corp., 392 F. 2d 161 (8 Cir., 1978). See also, Easttam v. Secretary of Health, Education & Welfare, 364 F. 2d 509 (8 Cir., 1966). Substantiality is a question of law. Aluminum Co. of America v. McClendon, 259 Ark. 675, 535 S.W. 2d 832. We addressed the matter of substantial evidence in that case, which was a worker’s compensation case. There we said:
Substantial evidence has been defined as “evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture.” Ford on Evidence, Vol. 4, § 549, page 2760. Substantial evidence has also been defined as “evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.” Wigmore on Evidence, Vol. IX, 3rd ed § 2494, footnote at page 300. See also Tigue v. Caddo Minerals Co., 253 Ark. 1140, 491 S.W. 2d 574; Goza v. Central Ark. Dev. Council, 254 Ark. 694, 496 S.W. 2d 388.
It may well be that there is some evidence that would tend to support the award made by the commission, particularly if the nursing services were not being rendered by the claimant’s wife. We have recognized that a wife, under appropriate circumstances, should be compensated for such services rendered her husband, especially when she has found it necessary to leave her employment to do so. Dresser Minerals v. Hunt, 262 Ark. 280, 556 S.W. 2d 138. There is, without doubt, substantial evidence that Case needs some services and that it is advisable that someone be available 24 hours a day. The real issue is whether the evidence is substantial to support an award for nursing services by a spouse which covers 16 hours per day.
The nursing services for which the employer is responsible are those reasonably necessary for the treatment of the injury. Ark. Stat. Ann. § 81-1311 (Repl. 1976). This does not include those services which one spouse is normally expected to render to another. In Dresser Minerals v. Hunt, supra, we have given recognition to the fact that the term “nursing services” embraces more than a wife’s ordinary care for a sick husband, and indicated that the services contemplated were those rendered in tending or ministering to another in sickness or infirmity. The problem lies in establishing a line of demarcation between the two types of services when both are rendered by one spouse to another.
Marriage is a civil contract between a husband and a wife. Ark. Stat. Ann. § 55-101 (Repl. 1971); Meister v. Moore, 96 U.S. 76, 24 L. Ed. 826 (1878); Dodson v. State, 61 Ark. 57, 31 S.W. 977; Reaves v. Reaves, 15 Okla. 240, 82 P. 490 (1905); B v. B., 78 Misc. 2d 112, 355 N.Y.S. 2d 712 (1974). Anonymous v. Anonymous, 67 Misc. 2d 982, 325 N.Y.S. 2d 499 (1971). See also, Smiley v. Smiley, 247 Ark. 933, 448 S.W. 2d 642; Bickford v. Carden, 215 Ark. 560, 221 S.W. 2d 421; Worden v. Worden, 231 Ark. 858, 333 S.W. 2d 494; Shatford v. Shatford, 214 Ark. 612, 217 S.W. 2d 917; Pickston v. Daugherty, 109 So. 2d 577, 71 ALR 2d 618 (Fla. App., 1959); State ex rel Fowler v. Moore, 46 Nev. 65, 207 Pac. 75, 22 ALR 1101 (1922); State v. Bittick, 103 Mo. 183, 11 LRA 587 (1891). The contract is to be husband and wife and to assume all rights and duties of the marital relationship. Jambrone v. David, 16 Ill. 2d 32, 156 N.E. 2d 569 (1959). The common understanding of marriage in this country is that the two parties to the contract have undertaken to establish a life together and assume certain duties and obligations to each other. Lutwak v. U.S., 344 U.S. 604, 73 S. Ct. 481, 97 L. Ed. 593 (1953). See also, Black’s Law Dictionary, DeLuxe 4th Ed. p. 1123; B v. B, supra; 55 CJS 806, Marriage, § 1. The marital obligation is a composite of many responsibilities and duties; it is the obligation of each spouse to the other to live conjugally, with the other, and to love, support, protect and defend the other. Williams v. Williams, 34 Ill. App. 2d 210, 181 N.E. 2d 182 (1962). A spouse is legally obligated to provide support to his spouse who is physically infirm. Ark. Stat. Ann. § 41-2405 (Repl. 1977). One spouse, by virtue of the marriage relation, has the right to the society, companionship, services, love, affection and aid of the other. Gibson v. Gibson, 244 Ark. 327, 424 S.W. 2d 871; Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S.W. 885; Billingsley v. St. Louis, I. M. & S. Ry. Co., 84 Ark. 617, 107 S.W. 173. See also, Missouri Pac. Transportation Co. v. Miller, 227 Ark. 351, 299 S.W. 2d 41; Ark. Stat. Ann. § 27-909 (Repl. 1962). It is the legal duty of the husband and wife to attend, protect and care for and nurse the other in sickness, when either is unable to care for himself. Robinson v. Foust, 31 Ind. App. 384, 68 N.E. 182 (1903); Galway v. Doody Steel Erecting Co., 103 Conn. 431, 130 A. 705 (1925).
Obviously, some of the services performed by the claimant’s wife are no more than should be expected because of the relationship. Appellee admitted that she was “married to the guy” and willing to do all she could to help him. Dividing the services between those the claimant had a right to expect from his wife, and those which are nursing services for which she should be compensated, is not an easy or simple task. Professor Larson pointed up the problem. 2 Larson’s Workmen’s Compensation Law 10-469, § 61.13. He said:
The commonest controversy is the question whether practical nursing services performed by the claimant’s own wife may be made the subject of a claim for nursing expenses. The earlier cases denied the allowance, on the ground that the wife did no more than she was bound to do as an affectionate spouse. Later cases, however, have permitted the charge, on the reasoning that the employer, by statute, has the affirmative duty of furnishing this kind of nursing service. If he has not done so, and if the wife then takes over these duties in addition to her regular household work and does exactly what a hired nurse would have had to do, the charge is proper.
Nursing services do not include assistance with household and personal tasks which the claimant is unable to perform. To extend the meaning of the term to include such services would be judicial legislation. Tirocchi v. United States Rubber Co., 101 R.I. 429, 224 A. 2d 387 (1966).
In Graham v. City of Kosciusko, 339 So. 2d 60 (Miss., 1976), the Mississippi Supreme Court grappled with the problem of compensating a wife for nursing services to her husband and concluded that required nursing services should be separated from general household duties and work that a wife ordinarily performs in and about the home in looking after and caring for her husband and family. The court pointedly observed that, while one paraplegic, for example, might leave home, drive himself to work, work all day, and drive himself home, without a moment’s trouble, another might need constant care and attention.
Even when an employer was required to pay the cost of nursing services by an unlicensed practical nurse employed by a claimant, it was held that the employer was not required to assume full cost of the nurse’s services, where her time was divided between nursing services and general housekeeping and the worker was able to dress himself, prepare and take his own medication, feed himself, and perform bathroom functions unassisted. Pan American World Airways, Inc. v. Weaver, 226 So. 2d 801 (Fla., 1969). In that case, the nurse administered medicine to the claimant when he was unable to administer it to himself and assisted the claimant in bathing.
This case is unlike Dresser Minerals v. Hunt, 262 Ark. 280, 556 S.W. 2d 138, where only $100 per week was allowed to a wife who gave up regular employment, which paid her $100 per week, to give nursing services, consisting of giving intramuscular injections, enemas, hot baths, leg and back rubs, and other care that was necessary around the clock, seven days a week, to a husband who was both an invalid and an incompetent. Neither is this case like Sisk v. Philpot, 244 Ark. 79, 423 S.W. 2d 871, where there was an award of $500 per month to a father, who gave up regular employment at which he was earning in excess of $500 per month to care for a son who sustained a compensable injury which rendered him mentally incompetent and physically helpless, so that he required constant nursing attention 24 hours per day. In that case, a practical nurse who was being paid $900 per month for nursing services to the injured employee had quit because the work was too strenuous and no other person could be found who would be willing to accept employment to nurse the claimant.
Although leaving employment to care for a spouse (or relative) is not controlling, it is a relevant factor in such cases. 2 Larson, Workmen’s Compensation Law 10-469 et seq., § 61.13. It was relevant in the Sisk and Hunt cases. It appears that, in this case, the wife’s compensation would be more than double that awarded in the two cases above mentioned. The award here is certainly disproportionate for the nursing services required, to say the least.
There is one indisputable fact in this record that clearly shows that Arguss Case does not need nursing services 16 hours per day. When he made his second trip to Washington, D.C., for acupuncture treatments, he was completely without any such services and there is nothing in this record that shows that he did not fare as well as could be expected, considering his disability.
Case is able to walk with a walker or cane. He can dress himself and put on his shoes. He can get in and out of an automobile unassisted. He could put his rubber pants on, if he had to. Although it seems that he does not do so, he can drive an automobile, without driving controls, using his short leg braces. He is able to prepare for his own bowel and bladder care. Mrs. Case does leave him alone when she goes to the grocery or “whatever she has to do.” She cannot comfortably leave him at night, but there is no indication that she has to do anything at night, unless Case has an “accident” due to incontinence. The bladder problem seems to be persistent, but the more recent medical reports do not mention the bowel problem and Mrs. Case’s testimony indicates that this may have been confined to a period of one year after the injury. The “accidents” sometimes occur nightly, but sometimes he goes a week without having one.
There are certain services performed by Mrs. Case which are compensable as nursing services when doubts are resolved in favor of the claimant. Assisting Case in doing some of his required exercises, helping him to put on rubber pants he wears because of urinary incontinence, changing his bed and pajamas when he has a urinary or bowel “accident” during the night, and, perhaps, helping him dry after a bath, are in that category. The constancy of her attendance upon her husband is obviously increased by the nature and extent of his physical disability. These services, over and above those she owed her husband as a part of her marital obligation, would not begin to consume 16 hours per day, even when allowances are made for the necessity for Mrs. Case’s presence in order to perform them. There is simply no substantial evidence to support an award based on 16 hours per day when we test it on the basis of the appropriate standards. The administrative law judge, in a very liberal award, found a basis for allowance for nursing services by Mrs. Case on the basis of 10 hours per day. Even though we give the findings of the administrative law judge no weight, there is certainly no substantial evidence to justify an award in excess of that. Obviously, we find no merit in appellants’ argument on cross-appeal that the commission erred in not awarding compensation for nursing services on a 24-hour basis.
We have affirmed the judgment of a circuit court modifying an award for permanent partial disability by reducing it from 40% to the body as a whole to 20%, because there was no evidence to support an award for more than the reduced amount, fully recognizing that the determination of the degree of disability was a function of the Workmen’s Compensation Commission. Ray v. Shelnutt Nursing Home, 246 Ark. 575, 439 S.W. 2d 41. We have also reversed the judgment of a circuit court affirming the commission’s award of permanent partial disability of 30% and remanded the cause to the circuit court for remand to the commission for entry of an award of 10% disability, because we found no evidence to support an award in excess of that amount. Diversa & Cotton Belt Ins. Co. v. Davis, 257 Ark. 825, 520 S.W. 2d 243. We acted similarly in Springdale Farms v. McGarrah, 260 Ark. 483, 541 S.W. 2d 928. On the other hand, in Aluminum Co. of America v. McClendon, supra, we found no substantial evidence to support an award of total permanent disability and remanded the case for further proceedings by the commission on the question of the extent of the disability. In this case, we choose to follow the precedent established in Ray v. Shelnutt Nursing Homes, Diversa & Cotton Belt Ins. Co. v. Davis, and Springdale Farms v. McGarrah, by modifying the award for nursing services to allow compensation of Mrs. Case on the basis of 10 hours per day.
II
Appellants base their contention that portions of the award were not controverted upon assertions that they never denied liability on the claim or any of appellee’s entitlements under the Worker’s Compensation Law and that the carrier was making payments and providing prosthetic devices, wheelchairs, ramps, crutches, braces, etc., prior to April 10, 1973, the date appellee retained his attorney. Appellants contend that they denied liability only when the claimant demanded a 15% penalty and payment of his expenses for acupuncture treatments. The commission found that appellants had controverted: claims for reimbursement for mileage to and from his physicians, and to and from sessions of physical therapy and rehabilitation; the provision of necessary additional equipment proposed by a physical therapist and Dr. Jim Moore, a neurological surgeon; two Homedic bills; a bill from Dr. Moore; nursing care by the claimant’s wife; and payment of court reporter’s fees for the deposition of Robbie Walker, a physical therapist.
Appellants contend that, while the question whether a claim is controverted is one of fact, not to be determined mechanically, failure or mere delay in payment when the carrier has accepted the claim as compensable is not equivalent to controversion, citing Horseshoe Bend Builders v. Sosa, 259 Ark. 267, 532 S.W. 2d 182; International Paper Co. v. Remley, 256 Ark. 7, 505 S.W. 2d 219; Garner v. American Can Co., 246 Ark. 746, 440 S.W. 2d 210. Appellants then refer us to that portion of Ark. Stat. Ann. § 81-1311 which provides:
If the employer fails to provide the services or things mentioned in the foregoing sentence within a reasonable time after knowledge of the injury, the Commission may direct that the injured employee obtain such service or thing at the expense of the employer, and any emergency treatment afforded the injured employee shall be at the expense of the employer.
The question before us is whether there is any substantial evidence to support the commission’s findings in respect to controversion. International Paper Co. v. Remley, supra. The question of controversion of nursing services hardly merits discussion. Bill Stackhouse, an adjuster for St. Paul Insurance Company, testified that there was a letter in the company’s file in this case giving notice that Case was claiming nursing expense. Stackhouse was given the opportunity to talk with Mrs. Case. Thereafter, the company sent one check for $198, which he said was for extra work. He did not consider this as payment for nursing services, because Mrs. Case was the claimant’s wife and was not a nurse. He calculated the payment at common labor rates for four hours per day. The time per day was a matter of opinion based on his own feeling, in an effort to arrive at some reasonable compensation to her for services attributable to Case’s fall at the rehabilitation center. Stackhouse considered that only the assistance she rendered Case after that incident was beyond what should be expected of her as his wife. No further payments were made. This item was clearly controverted.
Appellants next assert that the furnishing of a stationary arm, leg and hip whirlpool, a stainless steel seat for it and a resistive exercise unit recommended for Case by Robbie L. Walker, a physical therapist, was not controverted because the carrier agreed to pay for them, but did not procure them, because it assumed that Case would arrange for delivery and present the bill, as he had done in connection with other items. Appellants contend no bill or claim was ever presented to the carrier for payment. From the file of the commission in this record, it appears that appellee’s attorney sent Walker’s letter recommending this equipment to the attorney then representing the carrier, accompanied by photostatic copies of pictures of the equipment, with figures of $920, $45 and $275, noted beside the respective pieces. The file also discloses that on April 18, 1975, the carrier had advised the attorney then representing it that it agreed to pay for the equipment and listed the items described in the pictures, quoting prices corresponding to the figures shown on the photostatic copy. It also reveals that on April 25, 1975, the carrier’s present attorney advised appellee’s attorney that the company would not furnish the devices unless they were prescribed by the claimant’s attending physician. Another letter in the commission file was written by appellee’s attorney to appellant’s present attorney on August 19, 1975, enclosing a letter from Dr. Jim J. Moore, bearing a July, 1975, date, which stated he had reviewed Walker’s recommendations and concurred that such apparatus would be beneficial to the patient both to strengthen and to maintain whatever function was present, and to allow Case to do a great deal of physical therapy at home without incurring travel cost in going to the physical therapist. In Case’s deposition, taken December 30, 1975, he stated that appellants had not paid for the exercise equipment. Although appellants’ attorney then exclaimed that “We’ve furnished every bit of that,” the opinion of the Workmen’s Compensation Commission was not filed until July 13, 1977, and it recited that appellants had failed to furnish this equipment and included it in the award made. There was substantial evidence of controversion of this part of the claim.
Appellants also state that the carrier had paid all requests for reimbursement for mileage as well as all medical benefits. It would unduly extend this lengthy opinion to detail the facts indicating that the carrier was rather dilatory about these payments. Appellants’ adjuster admitted that for eight months after receiving some of the information on these items of expense, he did nothing. We consider the evidence of controversion substantial.
Appellants cite no authority and present no convincing argument on any other items which the commission held to have been controverted, so we do not consider them. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606.
Appellee contends that the commission erred in failing to find that the entire claim was controverted. We find no basis for reversing the commission’s action in that respect.
We find it unnecessary to treat appellants’ points III and IV, because they are responsive to questions raised on appellee’s cross-appeal, which have been specifically abandoned by appellee in his brief.
The judgment is affirmed on cross-appeal. The judgment is affirmed as modified on direct appeal. The cause is remanded to the trial court with directions to the trial court to remand it to the Workmen’s Compensation Commission for entry of an award consistent with this opinion.
Hickman, J., dissents as to the modification. | [
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Oarleton Harris, Chief Justice.
On October 17, 1967, appellants, H. L. Manning, Arthur Lee Manning aud Eddie Manning, were convicted of the crime of rape, and sentenced to 40 years imprisonment. They were represented by counsel who had been retained by their mother. On November 16, 1967, appellants filed a motion for a new trial, which was denied on November 20, appeal granted, and appellants given 45 days for preparation of the Bill of Exceptions. The appeal wTas not perfected. A petition was filed on February 14, 1968, with the trial court by the appellants, which asserted that they 'were without counsel and were paupers; they asked that the court appoint an attorney and order a transcript prepared, free of charge, for purposes of an appeal. The court found that appellants had been represented by an attorney, E. V. Trimble; that the time for an appeal liad long since expired, and no ground had been alleged under Criminal Procedure Rule No. 1 which would subjod the sentence rendered to collateral attack. On April 22, 1068, the appellants wrote the Circuit Judge, stating that their attorney had lost interest in their case, and they requested that an attorney be appointed to proceed under Rule 1. Two attorneys of the Pulaski County Bar were appointed to represent them, and a formal motion was filed by these attorneys on May 30, asking that appellants be allowed to appeal their conviction in forma, pauperis. It was asserted that the action of defense counsel in “abandoning” appellants’ cause, and the action of the court in denying legal counsel and a transcript, were a violation of their constitutional rights. Upon hearing, the Pulaski Circuit Court (First Division) denied the relief sought and entered judgment accordingly. From such judgment, appellants bring this appeal.
The petition filed by appellants has been given careful consideration, and we have reached the conclusion that no showing has been made which would entitle them to the relief sought. It is apparent from the record that the Manning Brothers- were aware that E. V. Trimble, ¡lie attorney employed by their mother, and who had conducted their defense at the trial, was not going to appeal the case, and, though not entirely clear, it appears that appellants were cognizant of this fact while they were still incarcerated at the jail, and long before appeal time had expired. "When Arthur Manning was asked if it -were true that he knew before he left the Pulaski County Jail that the case was not going to be appealed by Trimble, he replied, “I didn’t know for sure though.” All agreed that they wanted to obtain the services of a Little Rock lawyer, Allen Dishongh, to represent them, and II. L. Manning stated that he talked with Dishongh over the telephone. This contact occurred between October 17, 1967 (date of the convictions) and December 1, 1967. Though Dishongh refused employment, the brothers made no effort to communicate with the trial judge, or to advise him or any other official, that they were paupers, financially unable to employ counsel, and desired that counsel be appointed to represent them on an appeal. In fact, it appears from the record that appellants have but little use for court appointed lawyers. II. L. Manning testified, “We didn’t want no state lawyer.”
This court, long before Griffin v. Illinois, 351 U.S. 12, 100 L. ed. 891, 76 S. ct. 585 (1955), and Douglas v. California, 372 U.S. 353, 9 L. ed. 811, 83 S. ct. 814, reh den 373 U.S. 905, 10 L. ed. 2d 200, 83 S. ct. 1288 (1963), permitted paupers to appeal their convictions, a full transcript of the proceedings at the trial being furnished without cost, with court appointed counsel directed to handle such appeals. We have also ordered, under Criminal Procedure Rule 1 appeals, that a full transcript of the original trial proceedings be prepared without charge to the defendant, and counsel appointed to belatedly appeal a conviction. See Jackson v. Bishop, 240 Ark. 1011, 403 S.W. 2d 94. However, there was a distinct difference in Jackson and the present case, in that Jackson made known his indigency, even before the original trial, and was represented there by court appointed counsel.
The case of Swenson v. Bosler, 386 U.S. 258, 18 L. ed. 2d 33, 87 S. ct. 996 (1967), is not applicable to the present contention. There, Missouri had no rule requiring appointment of appellate counsel for indigent defendants, and if trial counsel withdrew from the case, the Supreme Court of that state would require preparation of the transcript for appeal, but would then consider the questions raised on the basis of pro se briefs by the defendant, or on no briefs at all. The United States Supreme Court held that this procedure violated Swenson’s Fourteenth Amendment rights, and we certainly agree with that decision. The court concluded its per curiam order with these words:
“"When a defendant whose indigency and desire to appeal are manifest does not have the services of his trial counsel on appeal, it simply cannot be inferred from defendant’s failure specifically to request appointment of appellate counsel that he has knowingly and intelligently waived his right to the appointment of appellate counsel.”
Here, it is evident that the need for appointive counsel was not manifest to the trial court, nor does the record indicate that appellants, or any one of them, made known a need for court appointed counsel to any official representing the state. Since the attorney who represented appellants at the trial did not advise the court, within appeal time, that he was not going to go any further with the ease, how was the court to know that there was need for an appointment to be made? The United States Court of Appeals for the Sixth Circuit employed pertinent language for this type of situation in Horton v. Bomar, 335 F. 2d 583 (6th Cir. 1964), where a petition for post-conviction relief was denied:
“Finally it is claimed on behalf of the appellant that ho was denied due process and equal protection of the law in violation of the Fourteenth Amendment to the Constitution of the United States for the reason that he was not provided with counsel to prosecute an appeal from his conviction in the state court. The appellant’s trial counsel apparently would not represent him in an appeal without the payment of an additionahfee. * * * The appellant does not claim that he ever advised the trial judge that he was unable-to employ a lawyer to prosecute an appeal or tliat he made a request for the appointment of counsel. It was well said by the District Judge, ‘ The trial judge is not obliged to inquire into the continuing status of their relationship.’ ”
The Federal Courts have also pointed out that, for a petitioner to be entitled to post-conviction relief, it must be shown that a responsible state official rejected the request for counsel. In Weatherman v. Peyton, 287 F. Supp. 819 (D.C. W. Va. 1968), the court said:
“For petitioner to b.e entitled to post-conviction relief, because of alleged violation of a constitutional right, it is not enough to show that he was indigent or that his privately employed counsel was negligent in not perfecting an appetil. The petitioner must show some state action. ‘State action’ is shown when a responsible official in the State’s system of justice rejects a request for counsel for a convicted defendant when he has knowledge of the defendant’s indigency and desire for appellate counsel. When an accused person retains counsel on the original trial the State may rely on the presumption that the accused’s lawyer will protect his client’s rights on appeal.”
See also United Blades v. Overlade, 149 F. Supp. 425 (D.C. Ind. 1957). This view has also received appellate approval. In Pate v. Holman, 341 F. 2d 764 (5th Cir. 1965), the court said:
“We take the position that when a defendant has retained counsel of his own choosing the State caunot be held to have violated the constitutional right of an indigent to counsel on appeal, unless the need for appellate counsel is brought home to the State, either by the defendant’s request for appellate counsel or because a responsible State official lias actual knowledge that the defendant is indigent and desires to appeal Ms conviction.”
In tlie case before us, tbe record clearly shows that no action of the state has prevented appellants from being afforded full protection for their constitutional rights. Surely, in holding that a convicted indigent could assert the violation of constitutional rights in a post-conviction hearing, it was not the intention of the United States Supreme Court to entirely sweep away state statutory law setting out orderly procedures, including that of appeal, unless such statutes offend the exercise of individual rights guaranteed by the Constitution.
It might also be said that appellants, though contending that there were errors in the trial proceedings (in a letter of April 22,1968, to the trial court), and that constitutional rights were violated, do not point out any asserted error, or specific instance of a constitutional violation. In Jackson v. Bishop, supra, cited by appellant as authority applicable to the present petition, Jackson, in his Bule 1 petition seeking relief, alleged three specific violations of his constitutional rights,5 and, as previously mentioned, was represented in the trial court by counsel appointed by that court. Here, only conclusions are set out, without any mention whatever of the acts relied upon for the conclusions reached.
Summarizing, appellants sought to secure the services of another attorney to replace Trimble in taking their appeal; though unsuccessful, no effort was made to contact any other attorney, or, if they were without funds, to make this condition known to the trial court. Actually, the testimony reflects that they were apparently rather confident that funds for the employment of an attorney would be furnished by the employer of an older brother (a brother not involved in this case). It appears that it was only after this effort had failed, and appellants had been sent on to the penitentiary, that they advised the court that they were paupers, and would like to have counsel appointed to represent them. There is absolutely no evidence that any state official was aware that retained counsel did not represent appellants until long after the time for appeal had expired, nor is there any indication that the state had knowledge of appellants’ indigency and need of appellate counsel until appeal time had terminated.
It follows that the judgment of the trial court should be, and hereby is, affirmed.
It. is so ordered.
Byrd and Holt, JJ., dissent.
Ark. Stat. Ann. § 43-2701 (Repl. 1964) provides as follows: “No. appeals to the Supreme Court in a criminal case shall be granted, nor writs of error issued, except within sixty (60) days after rendition of the judgment of conviction in the case except that the trial judge with his discretion may by order entered prior to the expiration of said sixty (60) days extend the time for not to exceed an additional sixty (60) days.”
This rule, adopted by the court on October 18, 1965 (amended on April 10, 1967) sets out the grounds for, and procedure to be followed in. petitions for post-conviction relief.
This remark was made with reference to their trial; Manning was rather critical of the lawyer selected by his mother.
The case was reversed with directions that an evidentiaryhearing be held to determine if Pate had (as he claimed) written the County Solicitor, the Attorney General of Alabama, and twice written the trial judge, advising of his difficulties, and asking for the assistance of appellate counsel.
5“1. That the rights of the appellant under the Fifth and Fourteenth Amendments to the Constitution of the United States were violated by introduction of alleged oral confessions made prior to advice to the appellant of his constitutional right to remain silent and to be represented by counsel.
“2. The rights of the appellant under Section 15 of Article 2 of the Constitution of tbe State of Arkansas and the Fourth Amendment of the United States Constitution were violated by the illegal search of his motel room and the use of evidence so obtained against him at the trial.
“3. That the court erred in admitting a .33 caliber Smilh & Wesson pistol into evidence without proper foundation, and the value of this pistol was absolutely necessary to establish the minimum of $35.00 in value of articles taken to justify a charge of grand larceny.” | [
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Frank Holt, Justice.
The appellees were purchasers of two pickup trucks which were financed under retail installment contracts with the appellant. The contracts authorized repossession of the vehicles upon the buyer’s default. When each appellee became delinquent on his monthly payments, appellant repossessed the trucks in which various items of personal property were stored. Appellant brings this appeal from a judgment awarding appellees $2,000 in actual damages and $17,000 in punitive damages.
Appellant first contends that the trial court erred in submitting the issue of conversion to the jury since no element of force, threats of force, or breach of the peace accompanied repossession. In pre-code cases, we have sustained a finding of conversion only where force, or threats of force, or risk of invoking violence, accompanied the repossession. Manhattan Credit Co., Inc. v. Brewer, 232 Ark. 976, 341 S.W. 2d 765 (1961); Kensinger Acceptance Corp. v. Davis, 223 Ark. 942, 269 S.W. 2d 792 (1954).
Ark. Stat. Ann. § 85-9-503 (Supp. 1977) provides in pertinent part of the code:
Unless otherwise agreed, a secured party has on default the right to take possession of the collateral. In taking possession, a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.
Here the contract recited that upon default by the appellee debtors, appellant creditor could invoke the remedies of the U.C.C. “including the right to repossess the property wherever the same may be found with free right of entry.” Clearly the appellant had the contractual and statutory authority to repossess the vehicles. Teeter Motor Co., Inc. v. First National Bank of Hot Springs, 260 Ark. 764, 543 S.W. 2d 938 (1976). In the case at bar there was no personal confrontation or contract between the repossession contractor and either of the appellees when the vehicles were repossessed. There was open access to the vehicles parked in a private driveway or adjacent to the houses. Both were removed during the evening hours without entry into, or dam ages to, any structure. Within a few minutes following repossession of Herring’s truck, he, in a telephone conversation with the repossessor, admittedly demanded only the right to retrieve his personal items, stating ‘ ‘they [Ford] can have the truck.” The next day he telephoned appellant Ford asking permission to “pick up” his payments which was refused. Appellee Geisler’s only contact with the appellant was in this same telephone conversation the next day following the repossession. In Teeter, supra, we upheld the right of the seller to repossess the vehicle upon default if it could be done without a breach of the peace as provided in § 85-9-503. Here the evidence is clearly insufficient to establish a fact question that the repossession of the trucks constituted a conversion.
Even though the repossession of the vehicles was proper, the question of whether appellant’s subsequent retention of certain personal property stored in the trucks constituted conversion was properly submitted to the jury. Conversion is the “exercise of dominion over the property in violation of the rights of the owner or person entitled to possession.” Thomas v. Westbrook, 206 Ark. 841, 177 S.W. 2d 931 (1944). We have also defined conversion as the wrongful taking or dominion over one’s property in subversion and denial of his rights irrespective of whether there was a demand and refusal for its return. Barnett Bros. Merc. Co. v. Jarrett, 133 Ark. 173, 202 S.W. 474 (1918); Plunkett-Jarrell Grocery Co., et al v. Terry, 222 Ark. 784, 263 S.W. 2d 229 (1953); Meyers v. Meyers, 214 Ark. 273, 216 S.W. 2d 54 (1948); and Westark Production Credit Association v. Shouse, 227 Ark. 1141, 305 S.W. 2d 127 (1957). Here, however, the contract specifically provided that “any personalty in or attached to the property when repossessed may be held by the seller without liability . . .” The property consisted mostly of various pieces of concrete equipment and tools jointly owned and stored in the trucks at the time of the repossession. The appellees were partners in the concrete business. The trucks and equipment were used in their means of livelihood. Although the appellant was authorized under the contract to hold the personal property, it could do so only as long as it was necessary to secure possession of the trucks. Jones v. General Motors Acceptance Corp. 565 P. 2d 9 (Okla. 1977); General Motors Acceptance Corp. v. Vincent, 183 Okla. 547, 83 P. 2d 539 (1938); and Ford Motor Credit Co. v. Waters, 273 So. 2d 96 (Fla. App. 1973).
As previously indicated, appellee Herring telephoned the repossession contractor shortly following the repossession and advised him that he “needed my [his] personal effects and tools out of my [his] trucks.” Herring requested that the contractor remain a few minutes at the local restaurant where the truck was parked until he, Herring, could arrive to discuss the return of the tools and equipment to him. Herring arrived approximately a minute later, and the truck and tools were gone. The morning after the repossession appellant’s employee, in a telephone conversation, denied any knowledge of the tools. A written report by the repossession contractor, dated two days after the repossession, advised appellant about the existence of the personalty in the repossessed trucks. Appellees filed a lawsuit four days after repossession. Appellant released possession of the property to appellees about two months later through arrangements by their attorney. Appellee Herring testified that he and Geisler had to abandon a project due to appellant’s retention of their jointly owned concrete equipment and tools. There is no evidence that the retention of the personal property, following a demand for its return, was necessary to the repossession of the trucks. In viewing the evidence most favorable to the appellees, as we must do on appeal, we hold that appellant is not absolutely shielded from liability by the contract terms when it can reasonably be inferred, as here, that it intentionally withheld the property after a demand had been made for it.
Appellant next asserts that there was insufficient evidence to support the jury’s award of $2,000 actual damages for the conversion of the trucks and personal property. We agree. As previously indicated, there was a submissible issue only as to conversion of the personalty. Appellant correctly states that the proper measure of damages for the conversion of the personal items was their market value at the time and place of the conversion. U.S. v. Bartholomew, 137 F. Supp. 700(D.C. Ark. 1956); Hardin v. Marshall, 176 Ark. 977, 5 S.W. 2d 325 (1928); American Soda Fountain Co. v. Futrall, 73 Ark. 464, 84 S.W. 505 (1905); and Parks v. Thomas, 138 Ark. 70, 210 S.W. 141 (1919). The fact that the majority of the items were eventually returned to the appellees does not bar recovery of damages for their conversion but may mitigate the damages. Norman v. Roberts, 29 Ark. 365 (1874); and Plummer v. Reeves, 83 Ark. 10, 102 S.W. 376 (1907). Here there was no evidence as to the value of various missing items. As to the items retrieved by appellees, the evidence, as to most items, was primarily based upon the purchase, replacement and rental price. Obviously, the evidence was deficient and did not comport with the recited standard.
Appellant next contends that the court erred in allowing the appellees to read to the jury a colloquy between counsel which took place during a discovery deposition in a different lawsuit between the parties to this action. The court admitted this verbal exchange between counsel as evidence of agency between appellant and its repossessor contractor. From the record before us, it is impossible to determine the precise issues in the prior lawsuit even though the same parties, lawfirms and incidents were involved. It is argued, however, by the appellees that the conversion of the personalty was in issue there and the same issue is presented here plus conversion of the trucks. Therefore, say appellees, the exchange between the parties’ counsel in the discovery proceeding is admissible. Even so, the parties, however, may modify or amend their pleadings resulting in additional issues upon a remand. Sanders v. Walden, 214 Ark. 523, 217 S.W. 2d 357 (1949); and Loyd v. Southwest Ark. Utilities Corp., 264 Ark. 818, 580 S.W. 2d 935 (1979). Furthermore, the issue of agency was not raised on this appeal.
Appellant next asserts that the court erred in instructing the jury regarding punitive damages since there was no evidence of force, oppression, or intimidation in connection with the repossession. In Clark et al v. Bales, 15 Ark. 452 (1854), we said the jury “had the right to take into consideration .... the vexation to [plaintiffs] feeling[s], the inconvenience to him arising from the deprivation of his property [hogs], as well as its value, and then to add something by way of ‘smart money,’ or exemplary damages.” Exemplary damages are proper where there is an intentional violation of another’s right to his property. Kelly v. McDonald, 39 Ark. 387 (1882); Ft. Smith I. & S. Mills v. So. R.B.P. Co., 139 Ark. 101, 213 S.W. 21 (1919); and Parks v. Thomas, supra. In view of the evidence previously recited, we hold that, although the taking was proper, the retention of the personalty after demand for its return constituted a submissible fact question on the issue of punitive damages.
Appellant’s last assertion for reversal is that AMI Civil 2d 2217 does not accurately state the law on punitive damages in a conversion action and, therefore, the court erred in reciting this instruction to the jury. That instruction provides in pertinent part:
Punitive damages may be imposed to punish a wrongdoer and to deter others from similar conduct. Before you can impose punitive damages you must find that -knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct [with malice or] in reckless disregard of the consequences from which malice may be inferred.
We agree with the appellant that this instruction was formulated for use in negligence cases. See Committee Comment AMI Civil 2d XXIX. It was not designed, as here, without modification to apply in a case of an intentional tort; i.e., conversion.
Reversed and remanded.
Harris, C.J., not participating. | [
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John A. Fogreman, Justice.
This opinion is filed pursuant to per curiam order of November 15, 1968.
Each of the appellants was a candidate in the general election for a position as delegate to the Arkansas Constitutional Convention from District 22, consisting of Pulaski and Perry Counties. In a petition filed No vember 11, 1968 they sought judgment against the Board of Election Commissioners of Pulaski County (appellees here) declaring the election on November 5 void, insofar as the election of delegates to the convention was concerned. They asked that the board be enjoined from certifying the results of the election and holding of the runoff election scheduled for November 19, 1968, as required by Act 42 of 1968 upon the basis of those returns. They also sought a writ of mandamus directing the appellees to hold another election for choice of delegates. The only defendants were the members of the Pulaski County Board of Election Commissioners. Belief was denied and appellants’ complaint dismissed by the circuit court after a hearing on November 12. We were asked to stay the runoff election pending appeal filed on November 14.
Relief was sought because of the arrangement of the names of candidates in Pulaski County for the positions of delegate to the convention where more than two aspirants had qualified to have their names on the ballot for a position. Appellants alleged that a drawing for ballot positions in these races had been conducted without adequate notice to any of them, and without any notice at all to some of them. Tt was their contention that when they learned from a sample ballot how the names would appear upon the voting machines to be used in the election, it was too late for them to take any action other than the filing of their pleading in the circuit court.
The ballot arrangement complained of was alleged to be different from all other races for positions where them were more than two candidates. Appellants showed that in programming the voting machines and preparing ballots in other races in Pulaski County the names of all candidates for an office appeared on a horizontal line on the machine. On the other hand, part of the names of candidates for delegate appeared on one horizontal line, the remainder on a line immediately beneath that line. The names of candidates drawn for odd-numbered ballot spots appeared on the top line, and the names of those, drawn for even-numbered slots appeared on the lower line. The names of all of the appellants were assigned to the lower line, and none of them received enough votes to be eligible for the runoff election. There was testimony that every “top-line” candidate having the name of no “bottom-line” candidate appearing below his name was successful in attaining a runoff position. Some of the candidates whose names appeared on the bottom line also achieved the runoff.
Evidence was introduced tending to show, and the trial court found, that those candidates whose names appeared on the top line had an advantage greater than the normal advantage held by a candidate who drew a “top-line” ballot position. This condition existed only in the precincts where voting machines were used. Paper ballots were used for absentee voters in Pulaski County. Presumably, paper ballots were used in all precincts in Perry County.
The trial court held that public interest in the election was too great to warrant the granting’ of any relief to appellants and that any election held on a day other than that fixed by the General Assembly would be void, relying upon our decisions in Simpson v. Teftler, 176 Ark. 1093, 5 S.W. 2d 350, and McCoy v. Story, 243 Ark. 1, 417 S.W. 2d 954. While we agree with the trial judge on this point appellants have raised other questions which require a more extensive answer than mere affirmance of the judgment entered.
Insofar as the action was for a declaratory judgment, the necessary jurisdietiona requirements were not met. The applicable, statute requires that all those whose interests are affected be made parties to the action. Ark. Stat. Ann. § 34-2505 (Repl. 1962). Those candidates who apparently attained runoff election positions on the basis of the November 5 elections, voters in Perry County, and the Perry County Board of Election Commissioners all had rights and interests that would be materially affected by this action. The failure to make any of them parties was a defect requiring the denial of a declaratory judgment. Johnson v. Robbins, 223 Ark. 150, 264 S.W. 2d 640; Laman v. Martin, 235 Ark. 938, 362 S.W. 2d 711; Southern Farm Bureau Casualty Co. v. Robinson, 236 Ark. 268, 365 S.W. 2d 454; Block v. Allen, 241 Ark. 970, 411 S.W. 2d 21. Before declaratory relief is granted, it should appear that the relief sought would terminate the controversy. Ark. Stat. Ann. § 34-2505. Johnson v. Robbins, supra. It appears to us that the granting of the relief sought here and in the trial court would not terminate, but would actually complicate, the controversy.
Declarator)' and injunctive relief are remedies to be sparingly used by the courts to prevent the holding of a regularly scheduled election. Brown v. McDaniel, 244 Ark. 362, 427 S.W. 2d 193. Such remedies should never be resorted to in cases where there is available to those seeking it an adequate pre-election or post-election remedy. See Orr v. Carpenter, 222 Ark. 716, 262 S.W. 2d 280; Brown v. McDaniel, supra; Ellis v. Hall, 219 Ark. 869, 245 S.W. 2d 223. Under Ark. Stat. Ann. § 3-814 (Repl. 1956) appellants had a pre-election remedy. That section provides for the correction of any error in the printing of ballots by order of the circuit judge. Tf this remedy had proven inadequate, no doubt a petition for mandamus would have been available. "While statutory provisions having to do with election procedures [such as Ark. Stat. Ann. §§ 3-810—3-830 (Repl. 1956), §§ 3-1709—3-1718 (Supp. 1967), having to do with preparation of ballots and voting machines] are often considered as only directory after an election, compliance before election is mandatory. Orr v. Carpenter, supra: Henderson v. Gladish, 198 Ark. 217, 128 S.W. 2d 257; Ellis v. Hall, supra; Henley v. Goggin, 241 Ark. 348, 407 S.W. 2d 732; Rich v. Walker, 237 Ark. 586, 374 S.W. 2d 476.
Appellants contend, however, that lack of notice of drawing for ballot position prevented their taking preelection corrective action. An unfortunate situation contributed to an apparent failure of a substantial number of appellants to receive notice. The latest permissible date for drawing for ballot positions is 40 days before the election. Ark. Stat. Ann. § 3-824 (Repl. 1956). The time to qualify as a candidate for delegate to the convention was also not less than 40 days preceding the general election. Section 4, Act 42 of 1968. By coincide] ice the drawing was held on the last day for qualifying and employees of appellees obtained the names of those qualifying as candidates in District 22 by going to the office of the Secretary of State. These employees then commenced an effort to give the required notice by telephone. They testified that they left word at the homes or offices of those candidates who were not ■reached by this method. No doubt this system failed in several instances, as only two of the appellants were present. While it may well be that this notice requirement should be viewed as directory after the election, the appellants were not prevented from having corrective action prior to the election. Testimony. that printed facsimile ballots and sample machines were displayed as required by law [Ark. Stat. Ann. § 3-1711 (Supp. 1967)] is undisputed. There was also testimony that a facsimile ballot was published in newspapers published in the county. At least two of appellants who were not present at the drawing but who had seen the ballots and machines in the courthouse appeared before the appellees to protest on October 28. One of tliem had been advised of the situation by an employee .even before he saw a machine on display. Under these circumstances all candidates had an opportunity to ascertain ballot positions assigned and to apply to the courts for action preceding the election. Post-election remedies were still available to them by way of contest. On oral argument, appellants stated that they' were satisfied with the results of the election in Perry County and conceded that these results could not be affected by' this action. "VVe do not understand, nor could-appellants explain, how the results of the election in Perry County' could have been correlated with the results of new elections in Pulaski County so that an integrated result of the election in District 22 could be determined. Neither was any suggestion forthcoming about the time and manner in which the runoff election could have been conducted in Perry County.
Appellants contend that results of the election should be voided because the wrong of which they complain was clear and flagrant, and in nature, so diffusive in its influences, that it rendered the result uncertain so as to defeat a free election unde]' the test announced in Patton v. Coates, 41 Ark. 111, and applied in Baker v. Hedrick, 225 Ark. 778, 285 S.W. 2d 910. This rule is applicable in election contests, but this proceeding is not of that nature.
Appellants also urge that the trial court should have granted the remedies sought by them because Art. 2, Section. 13, of the Arkansas Constitution recites that, every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character, in effect denying him due process of law. Our answer to this contention is threefold. In the first place, appellants liad both pre-election and post-election remedies, as hereinabove pointed out. Secondly, the rights protected are personal and property rights, not political rights as are asserted by appellants here. See Molloy v. Collins, 66 R.I. 251, 18 A. 2d 639. The distinction in these rights is pointed out in Walls v. Brundidge, 109 Ark. 250, 160 S.W. 230, Ann. Cas. 1915C 980.
Thirdly, it is the function of the legislature, not the courts, to create rights of action, or provide relief where means of redress have not been designated. Lucas v. Bishop, 224 Ark. 353, 273 S.W. 2d 397.
if we should have declared the election void, no means of calling an election existing, the selection of delegates representing District 22 might well have been left to the delegates from other districts. Section 3, Act 42 of 1968. This would have been a highly undesirable result and would have been a greater deprivation of the rights of voters in the district than could have resulted from this unfortunate situation.
The judgment and our order per curiam are affirmed.
Holt, J., not participating.
This was subsequent to the time fixed by law for the furnishing of ballots for absentee voting [Ark. Stat. Ann. § 3-1109 (Repl. 1956)] and for placing of voting machines with ballot labels in the precincts for demonstration [Ark. Stat. Ann. 5 3-1711 (Supp. 1967)].
See Ashby v. Patrick, 181 Ark. 859, 28 S.W. 2d 55, where the ’ order of a trial court voiding an election because of the arrangement of the ballot was reversed.
Contests of this sort might be subject to the jurisdiction of the constitutional convention only. Section 8 of Act 42 of 1968 provides that the convention shall be the sole judge of the qualification and election of its own membership. See Pendergrass v. Sheid, 241 Ark. 908, 411 S.W. 2d 5. | [
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George Rose Smith, Justice.
During three tax years beginning March 1, 1973, Great Lakes purchased chlorine in Louisiana and Texas, paying no sales tax upon it, and used the chlorine in the manufacture of bromine at its plant in Union county. The appellee made a use tax assessment of $94,342.24, plus interest and 10% penalty, upon the value of the chlorine. Great Lakes protested the tax on the ground that the chlorine is exempt, because it becomes “a recognizable, integral part” of the bromine and therefore falls within the sales tax exemption (incorporated in the use tax law) of sales for resale. Ark. Stat. Ann. § 84-1904 (i) (Repl. 1960) and § 84-3106 (B) (Supp. 1977). This appeal is from a decree finding that the chlorine does not become a recognizable, integral part of the bromine and is therefore subject to the use tax.
The facts, all shown by expert testimony, are really not in dispute. Great Lakes first produces brine from the earth, much as oil is produced. The brine contains bromide — a substance of no particular value in itself. Great Lakes, however, converts the bromide into bromine, an element which is valuable in industrial processes because it has the power to bring about oxidation when properly brought into contact with other substances.
The chlorine, which is the subject of the tax in question, is used to convert the bromide into bromine. Chlorine is an oxidizing agent, because each chlorine atom lacks an electron and in a figurative sense “wants” to get that electron from another substance by the process of oxidation. There are other oxidizing agents, such as hydrogen peroxide, but chlorine is the cheapest to use in the manufacture of bromine.
What Great Lakes does is to mix the chlorine and the bromide in a reactor in such a way as to bring about oxidation. In that process each atom of chlorine obtains an electron, on a one-to-one basis, from a corresponding atom of bromide. That transfer of electrons brings about chemical changes in both substances. The bromide becomes bromine as a result of losing an electron. The newly created bromine is industrially valuable, because its lack of that electron makes it an oxidizing agent with the power to bring about oxidation with other weaker oxidants. The chlorine on the other hand, by obtaining electrons from the bromide, undergoes a chemical change and becomes chloride, a worthless salt that Great Lakes discards by injecting it into the earth.
Great Lakes argues that the phlorine itself becomes a recognizable, integral part of the bromine, because the chlorine’s oxidizing potential is transferred to the bromine. But the use tax deals with tangible personal property, which is defined as personal property which may be “seen, weighed, measured, felt, touched, or is in any other manner perceptible to the senses.” § 84-3104 (k) (Repl. 1960). As tangible property the chlorine unquestionably becomes chloride, by gaining an electron, and is discarded as worthless. Thus no tangible part of the chlorine is transferred to the bromine. Exactly to the contrary, the chlorine gains an electron, while the bromide loses an electron.
Bromine’s oxidizing potential — its desire to get an electron back from some weaker substance — is plainly not tangible property. It is a property only in the sense of being a trail of bromine. Thus, the potential is a trait that can be measured, but as the appellee points out, almost everything known to man is a property in that sense. When natural gas is used to heat coffee for sale in a restaurant, the heat is transferred to the coffee and is a measurable property of the hot coffee. But that does not mean that the gas itself is being resold to the consumer as a recognizable, integral part of the hot coffee. (See our discussion of an “integral part” in Hervey v. International Paper Co., 252 Ark. 913, 483 S.W. 2d 199 [1972].) In the same way, Great Lakes uses chlorine in the manufacture of bromine, but the chlorine does not become a part of the bromine. Quite the opposite, the chlorine takes something from the bromide, becomes chloride, and is discarded as worthless. Thus it is at best consumed in the manufacturing process, not resold to the purchaser as tangible property. The chancellor’s decision was right.
We are not sure that we understand the appellant’s other point for reversal, but it seems to be argued that the 10% penalty should not have been imposed. As we read the statute, if the tax is not paid when due, there is either a 10% penalty for negligent non-payment without intent to evade the tax or a 50% penalty for fraudulent non-payment with intent to evade the tax. § 84-3113 (Repl. 1960). One penalty or the other is to be assessed; so Great Lakes cannot complain about the appellee’s having imposed the 10% penalty only.
Affirmed.
We agree. Harris, C.J., and Fogleman and Hickman, JJ- | [
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Carretón Harris, Justice.
Appellant, Charlie Bryant, was charged in the Municipal Court of Newport, -Jackson County, Arkansas, with the offense of selling intoxicants to a minor, in violation of Ark. Stat. Ann. § 41-1117 (Repl. 1964). He was also charged with the offense of selling beer on Sunday. The cases were consolidated for trial, and appellant was found guilty of both charges, and fined $100.00 and costs on each one. Both cases were appealed to the Circuit Court of Jackson County. In May, 1968, appellant moved to dismiss the charge of violating § 41-1117, asserting that this court had, in April, 1968, in State v. Jarvis, 244 Ark. 753, 427 S.W. 2d 531, held that this section had been repealed by Act 257 of 1943. The trial court denied the motion, and the (‘ases were tried by a jury on October 4, 1968. Bryant was found not guilty of the charge of selling beer on Sunday, but the jury deadlocked at 10 to 2 on the remaining charge. Both appellant and the state agreed to accept a majority verdict, whereupon the jury found Bryant guilty of the charge of selling intoxicants to a minor, Charles McLaughlin, in violation of § 41-1117, and fixed his fine at the sum of $50.00. From the judgment so entered, appellant brings this appeal. For reversal, it is asserted that the verdict was contrary to the evidence; that the court erred in denying appellant’s motion for a continuance; and that the court was in error in submitting the case to the jury because § 41-1117 had been repealed.
Inasmuch as we agree that § 41-1117 has been repealed, and that the judgment of conviction must be re versed ou that account, there is no need to discuss the other suggested errors.
Section 41-1117 reads as follows:
“Any person who shall sell or give away, either for himself or another, or be interested in the sale or giving away of any ardent, vinous, malt or fermented liquors, or any compound or preparation (.hereof called tonics, bitters or medicated whiskey, to any miuor, without the written consent or order of the parent or guardian, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not less than fifty [$50.00] nor more than one hundred dollars [$1.00],
In 1941, the General Assembly passed Act 356, Subsection (a) of Section 1 reading, as follows:
“Any person who shall sell, give away, or dispose of intoxicating liquor to a minor, or habitual drunkard or an intoxicated person shall be guilty of a misdemeanor and for the first offense be punishable by a fine of not less than $500.00 nor more than $1,000.00, or confinement for not more than one year in the Arkansas State Penitentiary or both.”
Section 6 of this act repealed all laws and parts of laws in conflict, and accordingly, the penalty provision of § 41.-1117 was repealed.
In 1943, two acts were passed by the Legislature dealing with this question, the first being Act 218, Section i appearing presently as Ark. Stat. Ann. § 48-901 (Repl. 1964). This act specifically repealed Section 1 of Act 356 of 1.941, heretofore quoted, and provided the following penalty:
“Any person who shall sell, give away, or dispose of intoxicating liquor to a minor or habitual drunkard or an intoxicated person shall he- guilty of a misdemeanor and for the first offense he punishable by a fine of not less than One Hundred ($100.00) Dollars nor more than Two Hundred and Fifty ($250.00) Dollars, and for the second and subsequent offenses, he shall be guilty of a misdemean- or and punishable by a fine of not less than Two Hundred and Fifty ($250.00) Dollars nor more than Five Hundred ($500.00) Dollars, or by imprisonment in the county jail for not less than six (6) months nor more than one (1) year, or both so fined and imprisoned in the discretion of the court oí- jury.”
Act 218 vas approved on March 15, 1943.
The second act passed during this legislative session was Act'257, approved-on March 18, 1943. This act, except for one change, retained the penalty in Act 218, differing from that act in that the imprisonment provision reads: - ...
“* * * for not more than one (1) Amar, or both such fine aud imprisonment in the discretion of the jury or court.”
In other words, Act 257 simply removed the penalty of imprisonment for not less than six months. Laws in conflict are repealed.
The above is a resume of the acts relating to the sale of intoxicating liquors to a minor, where knowledge of minority is not involved. . It.would therefore appear that Act 218 (Section 48-901) is the governing statute.of such sales (except that the penalty of imprisonment is controlled by Act 257), and controls the sale in the in-slant case.
State v. Jarvis, supra, pointed out that so much of Section 41-1117 as was in conflict with Act 257 pertaining to the sale of intoxicating liquors to minors had been repealed. The result is that Section 41-1117 presently only covers the sale to minors of any compound called tonics or bitters, and thus, for all practical purposes, has been nullified.
Since the provisions of Section 41-1117 no longer control the sale of intoxicants to a minor, it follows that appellant was erroneously charged, and the judgment of conviction must be reversed.
It is so ordered.
Sections 1 and 2 of Act 180 of 1961 appear in the Arkansas Statutes as Section 48-903. This statute deals with the penalty for one who knowingly sells or furnishes alcoholic beverages to a minor. The compiler comments that this act supersedes Section 1 of Act 257 of 1943. We think this comment is in error, as Act 180 deals entirely with sales where the seller has knowledge of the minority.
Act 277 of 1967 amended Act 180, including the changing cf the penalty. | [
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George Rose Smith, Justice.
The question is: Should a prosecution for unlawful failure to file a 1976 Arkansas in come tax return be brought in Sebastian county, where the taxpayer was a resident, or in Pulaski county, where the law required that the return be filed? The Sebastian Circuit Court overruled the defendant’s motion to dismiss for want of jurisdiction and venue. We granted a temporary writ of prohibition and now hold that Pulaski county is the proper venue.
The information charges that Taylor failed to file his return on May 15, 1977, which was its statutory due date. Ark. Stat. Ann. § 84-2027 (Repl. 1960). The return must be filed with the Commissioner of Revenues at his office at Little Rock (in Pulaski county). Id. Failure to make any return, with intent to evade the requirements of the statute, is a misdeme.anor. § 84-2036 (6).
The general rule is that a failure or omission to act, such as the failure to file a document in a certain county, is an offense committed in the county where the act should have been performed. State v. Civella, 368 S.W. 2d 444 (Mo., 1963), citing authority. We followed the general rule in Louisiana & Ark. Ry. v. State, 85 Ark. 12, 106 S.W. 960 (1907), where the statute made it a misdemeanor for the railroad company to fail to build a station at a certain point on its line. We held that the failure to build the station was an offense in the county where it should have been built, not in the county where the company had its domicile.
The Attorney General argues, however, that the income tax law provides that the failure to do any act required by the statute shall be deemed “an act committed in part at the office of the Commissioner in Little Rock.” § 84-2036 (9). Even so, the statute does not say that the failure shall also be deemed to be an act committed in part at the taxpayer’s residence. The statute, it must be noted, applies as well to nonresident taxpayers, whose actions outside this state are not being made a criminal offense in Arkansas. Moreover, the statute refers only to “any act required by or under the provisions of’ the income tax law. That law did not require this taxpayer to do any act in Sebastian county. It did require him to file a return in Pulaski county.
A similar argument was rejected by the United States Supreme Court in United States v. Lombardo, 241 U.S. 73 (1916). There the statute required that a certain written statement be filed with the Commissioner General of Immigration, in Washington, D.C. The defendant, a resident of Seattle, Washington, was charged there with having failed to file the statement. The prosecution argued that since the statement could have been deposited in the mail in Seattle, though the statute did not specify that action, the offense should be deemed a continuing one that occurred both in Seattle and in Washington, D.C. The court pointed out that “filing” is not complete until the document is delivered and received. “Anything short of delivery would leave the filing a disputable fact, and that would not be consistent with the spirit of the act.” Furthermore, for the courts to create a continuing offense when the statute had not done so would create needless confusion.
The same thing is true in the case at bar. If we should go beyond the language of the income tax statute by saying that the offense occurred also in Sebastian county, then this taxpayer or another in his situation might raise an issue of fact by proof that he was not in the county on the due date of the return or that he customarily signed his return forms in the office of an accountant or tax consultant in an adjoining county, who also mailed them. We see no reason to create the possibility of uncertainty when the legislature intended that none should exist.
The writ of prohibition is granted.
Stroud and Mays, JJ., not participating. | [
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John A. Fogheman, Justice.
Appellant was convicted of burglary and grand larceny. He lists 15 points for reversal. His failure to argue some of them, except by repeating the statement of the points themselves is evidence that these are merely formal in nature. Others are overlapping and intertwined. We shall treat as many of diese points in this opinion as seem to merit discussion, some of which we consider only in view of the reversal of this case for insufficiency of the evidence. Others we consider to be wholly without merit. In dealing with those of which there is some indication of merit, we will consolidate into the following:
1. The evidence is insufficient to support the verdict of the jury.
2. Appellant was never taken before an examining magistrate.
3. The conviction should be set aside because appellant’s arrest was not based upon a warrant or probable cause.
4. Fvidence obtained by search of a barn wherein a large quantity of paint was stored should have been suppressed.
5. A cardboard box found'by an officer prior to the arrest of appellant should have been suppressed as evidence.
6. Appellant was deprived of constitutional rights by failure of the officers to advise him of his right to counsel, to permit him to use a telephone for at least 30 hours, to permit him to communicate with his parents or relatives, and- by interrogation of appellant.in the absence of any attorney.
7. The court erred in giving an instruction distinguishing between direct and circumstantial evidence.
8. The court erred in instructing the jury as to a rule of evidence in regard to possession of stolen property.
We treat these points in the order listed.
1.
We find reversible error in the denial of appellant’s motion for new trial on this ground.
The Sherwin-Williams Paint Store on State Line Road in Texarkana, Arkansas, was burglarized duriug the weekend of May 27, 28 and 29, 1967. Paint, brushes and other articles worth more than $5,000 were taken from tire store. Among the articles taken were various cloths, a sander, a sale containing papers and records, and various accessories. The burglary was discovered by Sid Smith, the manager of the store, at 7:00 a.m., Monday, May 29. The store had apparently been entered through a window which had been broken and unlocked. Smith immediately notified the Texarkana Police Department. Chief Max Tackett directed the investigation. lie learned that a yellow panel-body truck belonging to the paint store had been found at the store on Monday morning with its motor running. lie also had information that a truck belonging to the Texarkana School District had been stolen during the same weekend. Assistant Chief Thurman Quisenberry examined the school truck. It was a 1%-tou or 2-ton flat bod truck. The floor of the truck bed consisting of 1” x4” wooden slats was heavily scratched and scarred. The truck was light green, but the bed was black. Tt had dual wheels and oak sideboards. It had been found abandoned on the side of a road near Fulton. Clay mud was found underneath the truck, and sprigs of wild oats were caught in the springs underneath the truck. On and about the bed of the truck Chief Quisenberry found limbs and thorns frombois d’arc trees, cedar limbs and foliage and leaves appearing 1o be from wild hedge. Freshly sprayed black paint appeared along tlie edges of tlie floor slats. Lettering on tlie truck doors had been obliterated by paint of the same color, but of a different type. In the truck the officer found a claw hammer and a small can of green spray paint of the same brand carried in the stock of the paint store. Both Tackett and Quisenberry examined the truck at the paint store and found foliage, some of which was on the rearview mirror, sililar to that found on the school truck. Quisenberry noticed scratches up and down both sides of the paint store, truck. Chi of Tackett ascertained that plants bearing these types of foliage were indigenous to the vicinity of Brownstown, a small community in Sevier County. He proceeded to that area with Quisenberry and Officer John Butler. Butler was taken because he had previously made his home in Sevier County about six or seven miles from Brownstown. They went near a place known to Butler as the Hogue place. After going some 200 yards from the highway and through a wire gap, they noticed the tracks of a dual-wheeled truck. They drove about 300 yards down through woods to a creek. They walked across the (week and followed these tracks into a thicket of hois d’arc bushes. They then drove back to a welding shop and learned that a new house had been built north of the house that Butler remembered.
The next day Tackett, Butler, Quisenberry and Officer "Weir returned to the area. As they came into the area they saw a house on the Hogue place 10 to 12 feet square with a garage to the right, a tool shed to the left real' and a combination chicken house and barn just beyond the tool shod. The barn was 60 to 70 yards from the road and the tool shed 10 to 20 yards from it. The house was 30 to 40 yards from the road. They recognized a 1960 model Chevrolet automobile parked in the road in front of the house as one used by both Louis Bay Jones and his mother, a resident of Texarkana. Jimmy Hogue, the owner of the place was Louis Bay Jones’ grandfather. A man named Carl Bay was in charge of the place.
Butler went up to Snead’s grocery, while the other officers proceeded along the road about a half mile, passing through,the wire gap. Weir remained with the ear while Tackett and Quisenberry walked farther. After they crossed a creek, Tackett found a piece of pasteboard which bore stencilled marks pertaining to Sherwin-Williams át Texarkana. Following dual wheel tracks, they saw skinned places on the brush bearing bluish green paint marks approximately the same color as the paint on the school truck. After the officers had unsuccessfully searched the area for the safe and other missing-articles, they returned to the area of the small house they had seen, leaving the police car 50 or 60 steps from the place the cardboard was found and about 60 to 70 steps frQm the place the dual wheel tracks led into brush consisting largely of bois d’arc in a place where some wild oats also grew. They had been rejoined by Butler who reported information he had received at the store. The officers walked around behind the garage, where they found dual wheel tracks, appearing to be fresh, leading to the barn on the side most remote from the highway. Looking through a wire enclosure they saw that the barn contained stacks of hay. It appeared to Butler that the barn door had been recently opened. Weir and Butler looked through a crack and saw a two-wheeled dolly.
Quisenberry took up a station in some woods 50 or 60 yards .from the road in a position where he could watch the house, barn and other buildings, while Tackett, Butler and Weir proceeded to the Snead store. From there, Chief Tackett called the sheriff’s office at DeQueen for a search warrant. ITe left Weir at the store to await the arrival of a Sevier County officer, and he and Butler returned to the area where the cardboard had been found and searched for the safe and paint for more than an hour. During this time Quisenberry saw Louis Bay Jones, Jo Ann Womack and Wayne Jones arrive in a Volkswagen, which they parked in front of the Chevrolet. After they raised.the hood on the Chevrolet, Louis Bay and Jo Ann Womack came around behind the garage and mounted a tractor located between the garage and the house. They backed the tractor into the road and proceeded in the direction in which Tackett and Butler had gone. Butler and Tackett heard the motor of the tractor and could tell that it was approaching them. When Butler got back to the police car, he saw a set of tractor tracks indicating that a tractor had been turned around near the car. Weir had seen the party arrive and called Chief Tackett on a “walkie-talkie” radio and advised him of the party’s arrival. Tackett instructed Weir not to let these people leave, but not to make any arrests before the Sevier County officer arrived, if he could avoid doing so. Shortly thereafter Deputy Sheriff Young arrived, and he and Weir went to the house. About 10 or 15 minutes after they arrived, Louis Kay Jones and Miss Womack returned, and were placed under arrest by these officers. The arrest was made about 20 or 30 feet from the shed or garage at or near the edge of the road. Chief Tackett and Butler arrived shortly thereafter and found Louis Kay Jones and Jo Ann Womack under arrest and in a car. Young had a search warrant which was declared invalid by the trial court. The officers immediately commenced a search of the barn and garage in the vicinity. In the barn they found most of the stolen articles which were later returned to the Sherwin-Williams Paint Store. They did not fiud the safe. They also found a large number of empty fertilizer sacks in the barn and fertilizer in clear plastic bags in the garage. The bags were colored red in part. Some of the bags in the garage were also empty. The two-wheeled dolly was recovered from the garage.
T. D. Snead ran the store about a quarter of a mile away from the place where Jones was arrested. Late in the evening on the day before the police came up he saw a large truck with sideboards pull out from the barn. It went south toward the cliff, a point beyond the Hogue house near the river and south of Brownstown. .
Oil.the following day Tackett, Quisenberry, Weir and Butler returned to the. area with Willis B. Smith, Jr., and went along the road beyond the Hogue place, searching for the safe. . They found and recovered-a plastic bag of the type.found at .the barn and garage containing Sherwin-Williams papers and records. They found dual wheel tracks indicating that a truck had backed up to Little River where they found 12 or 15 more of the same type bags. Two of these found in the ri-ver also contained records and papers belonging to Sherwin-Williams Paint Company at 800 State Line Road. The papers were identified by the manager of Sherwin-Williams. Paint Company.
This evidence was entirely circumstantial. We find it insufficient to support the jury verdict. Where circumstantial evidence alone is relied upon to establish guilt of one charged with a crime, such evidence must -exclude every other reasonable hypothesis than that of the guilt of the accused. Logi v. State, 153 Ark. 317, 240 S.W. 400; Turner v. State, 192 Ark. 937, 96 S.W. 2d 455; O'Neal v. State, 179 Ark. 1153, 15 S.W. 2d 976. A conviction resting upon evidence which fails to come up to the standard prescribed is contrary to law, and it is the duty of the court to set it aside. Where all the circumstantial evidence leaves the jury to conjecture only in determining the guilt of one accused, it fails to meet this standard. Logi v. State, supra.
The conviction here is based upon evidence lacking important elements shown in cases where we have found circumstantial evidence sufficient. In this case there was no evidence indicating that appellant was ever actually- in possession of any part of the stolen property as there was in Meadows v. State, 128 Ark. 639, 193 S.W. 264; or that he was ever present at or near the paint store as was shown in Nick v. State, 144 Ark. 641, 215 S.W. 899; or that he had actually been present at the place Or in the-vicinity where the stolen property was found prior to the time when seen by the officers; or that he was- ever in tlie vehicle tracked to the area where the paint was found as was shown in Nick v. State, supra. Under this state of the record, the circumstances could be just as consistant with the guilt of Jimmy Hogue, Carl Ray, Wayne Jones, Jo Ann Womack (now Jones), or any one of innumerable people who might have had access to the Hogue place and the garge and barn there. There was no evidence whatever as to who might have lived on or frequented the premises. It was not shown that appellant lived on or had occasion to stay on the premises as was indicated in Nick v. State, supra, and O’Neal v. State, 179 Ark. 1153, 15 S.W. 2d 976. The evidence in this case is no stronger than was the circumstantial evidence of grand larceny in France v. State, 68 Ark. 529, 60 S.W. 236, where we said that the defendant might be guilty, that the circumstances were suspicious but the evidence was too slight to support the verdict and a new trial should have been granted.
2.
We have repeatedly said that the provisions of Ark. Stat. Ann. § 43-601 (Repl. 1964) are directory, not mandatory. There can be no reversible error solely because of a failure to take one lawfully arrested before a magistrate for preliminary examination. Moore v. State, 229 Ark. 335, 315 S.W. 2d 907; Paschal v. State, 243 Ark. 329, 420 S.W. 2d 73.
3.
We find ample evidence to justify the arrest of appellant in this case. His actions and conduct after the officers had arrived at the Hogue place were sufficient to give them reasonable grounds for believing that he had committed a felony. He stopped immediately at an apparently disabled car he had been known to drive at a place where the officers had reason to believe fruits of the crime were stored. He displayed a great familiarity with the premises and the surrounding area where in criminating evidence had already been found. He commenced an immediate reconnaisance of the area. His tractor ride with his girl friend commenced in an area near the garage and barn. It took them toward the area where the truck tracks, the cardboard and other incriminating evidence had been observed but was reversed abruptly when the police car came into his sight. Under Ark. Stat. Ann. § 43-403 (Repl. 1964) an officer has the right to make an arrest when he has reasonable grounds for believing that the person arrested has committed a felony. Appellant argues that even if the other officer's did have reasonable grounds for making the arrest, Deputy Sheriff Young did not. Obviously, knowledge and information gained by the officers were interchanged among them. Chief Tackett, while approaching the place of arrest, directed by radio that it be made. Butler had previously conveyed to Tackett the information given him by Snead. Young testified on the hearing on a motion to suppress evidence that Weir stated that the Texarkana officers had reason to believe that the stolen paint was in the area or buildings, that Louis Ray Jones had been seen hauling feed or hay in the area, and that Jones and the girl had ridden away from the area on a tractor. He stated that the only ground for him to suspect the parties was the statement the officer, Weir, had given him. Probable cause is to be evaluated by the courts on the basis of the collective information of the police (which may consist partially of hearsay) rather than that of only the officer who performs the act of arresting. Smith v. United States, 358 F. 2d 835 (D.C. 1966), cert. denied, 386 U.S. 1008. See also State v. Fioravanti, 46 N.J. 109, 215 A. 2d 16 (1965); United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684. Information coming to officers must rise above mere suspicion of criminal activity in order to constitute probable cause for an arrest, but it need not be tantamount to that degree of proof sufficient to sustain a conviction. Clay v. United States, 394 F. 2d 281 (8th Cir. 1968), cert. denied, 393 U.S. 926; Reed v. United States, 401 F. 2d 756 (8th Cir. 1968). See also Smith v. State, 241 Ark. 958, 411 S.W. 2d 510.
4.
The trial judge conducted an extensive hearing on appellant’s motion to suppress this evidence. The evidence heard was virtually identical with that later adduced during the trial. The trial judge found from the evidence that appellant had no standing to complain and that the search was incident to and contemporaneous with a lawful arrest. We find substantial evidence to support his findings that the search was incidental to and contemporaneous with a lawful arrest, even if appellant did have standing to complain.
In applying Fourth Amendment sanctions, it must always be remembered that only unreasonable searches are condemned. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1924). Reasonableness of a search must be tested under the particular circumstances of the case rather than by comparison with particular searches which have been approved by the United States Supreme Court in specific cases. That court has deliberately avoided the establishment of any formula or measure by which the validity of a search should be determined. In United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1959) that court said:
“What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are ‘unreasonable’ searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case.”'
If comparisons with specific cases are to be made, it is better to make them with cases wherein searches have been disapproved as unreasonable. We find no decision of the United States Supreme Court wherein a search such as this has been held unreasonable.
The only limitation which has been placed upon a search incidental to an arrest is that it not be remote in time and place. See Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145; Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964). In order to be incident to an arrest, it is only necessary that the search be substantially contemporaneous with the arrest. See Stoner v. California, 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964). This does not mean that the arrest cannot precede the search. Nor does it moan that the search is necessarily restricted to the boundaries of the premises where the arrest is made. The time and space intervals must not be so unreasonable as to render the search remote. Applying that criterion to the case before us, we find that there was evidence that the officers commenced the search as soon as appellant was placed under arrest. A search incident to a lawful arrest could scarcely be less remote in time than this. The most reinóte point of the search was conducted within 70 3rards from the point of arrest. The search took place on premises on which appellant was arrested or immediately adjacent to the point on a public road on which he was arrested. We find no declaration by the Supreme Court of the United States that a search not within the precise boundaries of the premises on which an accused was arrested is unreasonable. Where, as here, the search is in the immediate vicinity of the place of arrest and movements of the arrested person in that vicinity had been observed, we find that it was reasonable. See Stoner v. California, supra. We do not consider the fact that the arrest was made in the public road bordering the premises searched, standing alone, would make the search remote in space. Actually, the road, or a substantial part thereof, could be said to constitute a part of the property of the abutting owner on whose premises the search was made. McLain v. Keel, 135 Ark. 496, 205 S.W. 894; McGee v. Swearengen, 194 Ark. 735, 109 S.W. 2d 444; Wilkerson v. Gerard, 200 Ark. 125, 138 S.W. 2d 76.
Tlie legitimate objects of a search incidental to an arrest include fruits of the crime [Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145 (1925); Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964)] and evidentiary material. Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). Cases such as Googer v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967) which seem to limit some warrantless searches for evidence to situations where necessary to prevent destruction of evidence are not applicable to searches contemporaneous with an arrest. In that case, the search was conducted a week after the arrest. It ivas admitted that it was not incidental to the arrest. . Cases involving searches preceding and used as justification for an arrest in “stop and frisk” cases such as Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968) are also inapplicable.
5.
The cardboard box bearing the name and address of the burglarized paint store was introduced as an exhibit over appellant’s objection and his motion to suppress was denied. This was an “open field” search and not unreasonable. Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898 (1926); McDowell v. United States, 383 F. 2d 599 (8th Cir. 1967).
6.
YVe do not understand appellant’s arguments here. If the state had sought to introduce evidence of in-custody statements resulting from interrogation or if it were contended that he was denied counsel at a critical stage in his prosecution by state action, then we might have some basis for inquiry as to the denial of constitutional rights. ■ ■ Since no such questions are involved, we find no merit in this contention.
•7.
• The court’s instruction on this point read as follows:
“A fact in dispute may be proved by circumstantial evidence as well as by direct evidence. A fact is established by direct evidence when, for example, it is proved by witnesses who testify to what they saw, heard, or experienced. A fact is established by circumstantial evidence when its existence can reasonably be inferred from other facts proved in the case. Any fact in the case, and any element of the crimes charged may be proved by either kind or both kinds of evidence.”
Appellant’s objection was that the instruction should not have, been given .because there was no direct evidence to connect him with the crime. We found a substantially similar instruction invulnerable to that objection in Duckett v. State, 175 Ark. 1169, 299 S.W. 1004.
8.
Appellant does not object to this instruction as incorrect. He only objects to it as being inapplicable and ■abstract, contending that there was no evidence to show that Louis Ray Jones was ever in possession of the stolen property. . We find this objection well taken in the absence of evidence that the stolen property was or had been in appellant’s possession, or other direct evidence connecting him with the crime.
We think it is proper that the case be remanded for a new trial, as was done in France v. State, supra.
Byrd, J. concurs.
Haréis, C.J., dissents. | [
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Steele Hays, Justice.
This suit presents the issue of whether the interest of a secured creditor in the inventory of a grain dealer is superior to that of a rice grower who subsequently deposits his rice with that dealer.
On May 1, 1980, Simmons First National Bank made a loan of $520,000 to Western Rice Mills, Inc., for which Western granted Simmons a security interest in all of its real and personal property, including all inventory and after acquired property. Western defaulted and in September of 1981, a receiver was appointed. Shortly thereafter, Harold Wells intervened, claiming ownership of certain rice and proceeds from the sale of rice, pursuant to a previous agreement with Western.
Wells had dealt with Western for a number of years, the standard arrangement being that Western would buy the rice outright from Wells, would mill it and then sell it. In April and May of 1981, because of financial difficulties, Western could not buy the rice outright from Wells. Wells and Western orally agreed instead that Western would mill the rice for a certain price and then market the rice at an agreed minimum price for Wells. The charge for milling would be deducted when Western sold the rice, and the remaining proceeds would go to Wells. In the interim, the rice was stored with Western.
The trial court, relying on the rationale of In Re Sitkin Smelting and Refining, Inc., 639 F.2d 1213 (5th Cir. 1981), found the arragement between Wells and Western to constitute a bailment and found Ark. Stat. Ann. § 85-2-326 (Add. 1961) inapplicable. Under this finding, the inventory lien of the bank did not extend to the rice or to the proceeds claimed by Wells.
Simmons argues for reversal that the Chancellor erred in finding that § 85-2-326 was inapplicable to the facts of this case. We agree and find that § 85-2-326 is applicable and we reverse as to those grounds.
The Chancellor mistakenly relied on Sitkin, whereby he found the arrangement to be a bailment and, apparently, found that that precluded the possibility of finding a consignment and § 85-2-326 applicable. We see two flaws in this analysis: first, the Sitkin case is factually distinguishable, the main issue there being whether the arrangement was a sale or a bailment. Second, even if a particular arrangement is found to constitute a bailment as opposed to a sale, that does not preclude a finding that there is also a consignment arrangement and, hence, § 85-2-326 is applicable.
In Sitkin, the issue was whether the bankruptcy court had erred in determining that possession of film entrusted to a bankrupt metal refiner, Sitkin, should be given to a secured creditor of the refiner rather than to the film manufacturer, Kodak, which had entrusted it to Sitkin. The arrangement between Sitkin and Kodak was basically that Sitkin would retain possession of film waste delivered to it by Kodak. But for Kodak’s business purposes, not until the film had been reduced and destroyed and the silver content removed by Sitkin, would Kodak’s ownership cease, and at that time a “settlement” would be made as to the amount owed by Sitkin. The court looked at a number of factors surrounding the transaction and found it to be a bailment arid not a sale. The court also determined that the transaction was not a “sale or return” within the meaning of § 85-2-326 since the goods were not delivered for resale with an option to return. Although we are not convinced that the court was correct in finding a bailment and not a sale in Sitkin, that is irrelevant here.
Whether the arrangement in this case was a bailment or a sale is not determinative of the rights of the parties. Even if under the analysis of Sitkin, the trial court found a bailment and not a sale, the question of whether § 85-2-326 is applicable must still be answered. Western could have been a bailee for Wells and at the same time been a consignee under § 85-2-326. We emphasize the following language of § 85-2-326 (3) which we find applicable to this fact situation:
(3) Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return. The provisions of this subsection are applicable even though an agreement purports to reserve title to the person making delivery until payment or resale or uses such words as “on consignment” or “on memorandum” ....
The comment to this section reinforces the policy indicated by the language of this section:
2. Pursuant to the general policies of this Act which require good faith not only between parties to the sales contract, but as against interested third parties, subsection (3) resolves all reasonable doubts as to the nature of the transaction in favor of the general creditors of the buyer.... (our italics).
Here, Wells delivered his goods, the rice, to Western for sale and Western maintained a place of business where it dealt in goods of that kind, under a name other than the name of the person making the delivery, Wells. With regard to the rights of creditors, it is irrelevant whether the transaction between the two parties was a bailment or a sale if the provisions of § 85-2-326 (3) are also satisfied.
We find In Re KLP, Inc. Finance Co. of America v. Morris, 7 BR 256 (Bankr. N.D. Ga. 1980) more analogous to our case and it provides a more appropriate and clearer application of § 85-2-326. In KLP, the plaintiff had leased space from the debtor to store two organs. The organs were delivered to the debtor’s warehouse where the debtor had traditionally dealt in organs and related goods. At the time of delivery, the agreement was modified to allow the debtor to secure offers for the purchase of the organs, subject to the debtor obtaining prior approval of the offers and sale by the plaintiff. When the debtor filed for bankruptcy, the plaintiff filed to recover the organs. The court ruled in favor of the Trustee whose status under the Bankruptcy Code is that of a hypothetical lien creditor who would have priority over a consignment seller who failed to comply with the require- merits of UCC § 2-326. The following passage states the policy and reasoning behind UCC § 2-326.
The applicable UCC provision, § 2-326, is not only one of the more important UCC sections, but is also one of the most unique provisions in the UCC article which governs the sale of goods. The uniqueness of the section lies primarily in the fact that the section applies to transactions which are not true sales at all, since the section governs agreements which somehow provide that “delivered goods may be returned by the buyer even though they conform to the contract.” The section’s importance lies primarily in the role it plays, along with the notice provisions of article nine, in giving disclosed claims to property priority over secret claims. To encourage disclosure of in rem claims is a central feature of any well-reasoned system of commercial law.
Accordingly, UCC § 2-326 provides that whenever goods are delivered under a contract which allows the buyer to return nonconforming [sic] goods and the goods were delivered “primarily for resale,” § 2-326 (1) (b), then goods so delivered become “subject to,” § 2-326 (2), the claims of creditors of the receiving party as long as the goods remain in that party’s possession. In such a situation, the delivering party may be referred to as the “consignment buyer.”
Of particular importance to the instant case is the fact that certain types of transactions are “deemed” by § 2-326 (3) to constitute “consignment sales.” The statute so characterizes a transaction when the following three circumstances are present:
(1) when goods are delivered for sale,
(2) when the “consignment buyer” maintains a place of business at which he deals in goods of the kind so delivered, and
(3) when the business name of the “consignment seller” is different than the business name of the consignment buyer.
If a transaction is so deemed to constitute a consignment sale, the consignment seller may obtain priority over the consignment buyer’s creditors only by complying with the notice requirements of UCC § 2-326 (3).
The facts of this case require us to examine § 85-2-326 for its applicability. The language of the statute and the commentary convince us that the reasoning of the court in KLP is sound. See also, Bufkor, Inc, v. Star Jewelry Co., Inc., 552 S.W.2d 522 (Tx. 1977); Manger v. Davis, 619 P.2d 687 (Utah 1980). Therefore, because we think the theory on which the case was tried would bring it within § 85-2-326, and since there was no evidence or argument that Wells complied with any of the requirements of § 85-2-326 (3) so as to remove him from the provisions of that section, the priority of Simmons’ interest would prevail on that issue.
The appellee makes two arguments that should be addressed. First, that for § 85-2-326 to apply, there must have been an actual sale between the consignor and the consignee, which, he submits, is not present here. We find that interpretation is not a correct statement of the law. KLP and the other cited cases make this clear by direct implication. The identical issue was dealt with in General Electric Co. v. Pettingell Supply Co., 199 N.E.2d 326 (Mass. 1964) and that contention is found to be without merit.
Appellant also argues that Arkansas Act 401 of 1981 (Ark. Stat. Ann. §§ 77-1339 et seq ) provides that in a case such as this, the grain warehouseman cannot sell or encumber grain in his custody unless the owner has by written document transferred title to the grain to the warehouseman, which was not done in this case. The Act specifically provides that any such transaction without written authorization will be void, notwithstanding any provision of the Uniform Commercial Code to the contrary. Appellant points out, however, that this argument was not raised below and should not be heard on appeal and the record supports that assertion.
Although we may affirm a decision on a legal theory not argued to the trial court, we must have some basis for that result. As we said in Palmer, et al v. Cline, 254 Ark. 393, 494 S.W.2d 112 (1973), “We must determine the issues upon the record that was made in the trial court. The facts essential to the question now argued were not pleaded in the court below and therefore cannot serve as the basis for a decision in this court.” Here, § 77-1339 defines public grain warehouseman as one who operates any building or structure for the purpose of storing grain for a consideration. Because this was not argued to the trial court, evidence relevant to Act 401 was not sufficiently developed for us to apply the rule that we will affirm the trial court if the correct result is reached, even if reached on an erroneous theory. We have discretion in determining whether an equity case should be reopened for additional proof on the proper theory. Brizzolara v. Powell, 214 Ark. 870, 218 S.W.2d 728 (1949); Nakdimen v. Atkinson Improvement Company, 149 Ark. 448, 233 S.W. 694 (1921). We believe the issue here is of sufficient importance to merit retrial on facts developed in light of Act 401.
Reversed and remanded.
§ 85-2-326. Sale on approval and sale or return — Consignment sales and rights of creditors. — (1) Unless otherwise agreed, if delivered goods may be returned by the buyer even though they conform to the contract, the transaction is
(a) a “sale on approval” if the goods are delivered primarily for use, and
(b) a “sale or return” if the goods are delivered primarily for resale.
(2) Except as provided in subsection (3), goods held on approval are not subject to the claims of the buyer’s creditors until acceptance; goods held on sale or return are subject to such claims while in the buyer’s possession.
(3) Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return. The provisions of this subsection are applicable even though an agreement purports to reserve title to the person making delivery until payment or resale or uses such words as “on consignment” or “on memorandum”. However, this subsection is not applicable if the person making delivery
(a) complies with an applicable law providing for a consignor’s interest or the like to be evidenced by a sign, or
(b) establishes that the person conducting the business is generally known by his creditors to be substantially engaged in selling the goods of others, or
(c) complies with the filing provisions of the Article on Secured Transactions (Article 9 [§§ 85-9-101 — 85-9-507]).
Pertinent provisions:
§ 77-1339. Definitions.
(b) “Public grain warehousemen” means any person, firm or corporation who operates any building, structure or other protected enclosure used for the purpose of storing grain for a consideration.
§ 77-1340. Title to grain.
Ownership of grain shall not change by reason of an owner delivering grain to a public grain warehouseman, and no public grain warehouseman shall sell or encumber any grain within his possession unless the owner of the grain has by written document transferred title of the grain to the warehouseman. Notwithstanding any provision of the Uniform Commercial Code (Act 185 of 1961 [§§ 85-1-101 et seq.], as amended) to the contrary, or any other law to the contrary, all sales and encumbrances of grain by public grain warehousemen are void and convey no title unless such sales and encumbrances are supported by a written document executed by the owner specifically conveying title to the grain to the public grain warehouseman. [Acts 1981, No. 401, § 2, p---] | [
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Per Curiam.
This case involves multiple claims of relief and liability among multiple parties. The trial court dismissed one defendant, Ford Motor Company, on the basis of lack of venue. The other parties now seek to appeal that ruling. However, the order of the trial court does not recite that there is no just reason for delaying an appeal nor does it direct the entry of a final judgment in favor of Ford Motor Company. Therefore, ARCP Rule 54 (b) requires that the present appeal be dismissed without prejudice to appeal when a final judgment is entered. | [
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Steele Hays, Justice.
Booker Matthews died intestate in 1975. Several persons asserted an interest in the estate, including Mary Bell Matthews, as widow, asking to be declared the sole distributee and claiming all statutory allowances to which she would be entitled. The last petition was filed by Nelson Thomas, claiming to be an heir, denying that petitioners Dorothy Friends and Erma Fonteno were legal heirs, or that the widow, Mary Bell Matthews, was entitled to more than a dower interest. All petitions were filed in 1975.
By order dated October 19, 1981, the probate court found Mary Bell Matthews was the widow and Erma Fonteno, Dorothy Friends and Ernestine Caldwell were daughters. On January 26, 1982, an order was entered approving the final accounting and payment of fees. On February 9, 1982, Mary Bell Matthews petitioned for dower and on March 3,1982, a response was filed by Erma Fonteno alleging that dower rights should be denied because at the time of Booker Matthews’ death the dower statute was unconstitutional under our decisions in Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981) and Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981). The probate court granted the dower petition, finding that dower should be granted pursuant to the statute in force at the time of death because the widow’s dower rights had vested at that time. Erma Fonteno has appealed, arguing that the Stokes and Hess cases were controlling at the time the court made its decision and, therefore, Mary Bell Matthews is precluded from any dower rights in the estate. We agree with the decision of the trial court but affirm on grounds not specifically addressed by the court.
Recent changes in the law of dower have led to some confusion in dealing with those cases where the husband had died prior to the Stokes and Hess decisions. The circumstances of each case must determine the outcome and we look for direction in this case to the later decisions of Hall v. Hall, 274 Ark. 266, 623 S.W.2d 833 (1981) and Mobley v. Estate of Parker, 278 Ark. 37, 642 S.W.2d 883 (1982). In Hall we stated that the Stokes and Hess decisions have never been completely retroactive in the sense that a widow who was awarded her statutory dower some years before those cases could not be stripped of her estate by a disgruntled heir. (Hall at 267). In Mobley, a case factually similar to this case, we relied on that statement in Hall and applied it to the facts of that case. We pointed out that the widow and heirs of Parker had treated the dower interest as if it had vested. The trial court had found that the attorney for the appellant had expressly recognized the widow’s dower interest in November, 1980, and we held that the principle of estoppel was properly applied against the appellant when later raising the constitutional issue after the Stokes and Hess decisions were handed down.
Here, soon after the death of the husband in 1975, conflicting petitions were filed by the widow and persons claiming to be heirs. The petition of Nelson Thomas alleged that the only legitimate interest of Mary Bell Matthews was that of dower and not of the entire estate. Not until March 3, 1982 was any constitutional issue raised as to the right of dower. The Stokes and Hess cases had been decided over a year earlier. In the interim, the right to dower remained unchallenged. In October, 1981, upon the order finding Mary Bell Matthews widow, no objection of any kind was made, nor after the order approving the final accounting and payment of fees was any objection made. We find here as we did in Mobley that the facts indicate that all parties treated the dower interest as having vested and under the principle of estoppel enunciated in Mobley, we find the appellant is precluded from raising the issue at this time.
Affirmed. | [
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Frank Holt, Justice.
The appellee secured a default judgment against Larry Fletcher. In an effort to collect the judgment, it had a writ of garnishment issued against the appellant. The appellant did not respond, and a default judgment was entered against it. In a timely manner, the appellant filed a motion to set aside the default judgment. The trial court held that the objections by appellant to the form of the writ of garnishment were well taken; however, by having answered a previous writ in this same case, the appellant garnishee knew what was required of it. The motion to set aside the default judgment against appellant was denied and hence this appeal.
The appellant contends the default judgment should have been set aside because it established a meritorious defense and because the writ of garnishment was voidable for lack of compliance with the requirements of ARCP Rule 4 (b). We agree.
The parties have stipulated that, from the time the writ of garnishment was issued until the date of the filing of the motion to set aside the default judgment, the appellant was not indebted to Larry Fletcher nor did it have in its possession any property or money belonging to him. This is sufficient to demonstrate the existence of a meritorious defense to an action for garnishment. Coward v. Barnes, 232 Ark. 177, 334 S.W.2d 894, 82 A.L.R.2d 854 (1960); Dalhoff Construction Co. v. Adams, 76 Ark. 98, 88 S.W. 1134 (1905); Ark. Stat. Ann. § 31-305 (Repl. 1962).
It further appears that the writ of garnishment here fell short of the requirements of ARCP Rule 4 (b) in substantially the same manner as the summons which we held defective in Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). Here, as in Tucker, the writ was not directed to the appellant but was directed to the sheriff; it did not direct the appellant to file a pleading and defend; and it did not state that any default judgment would be for the relief demanded, which was the amount owed to the appellee here by Larry Fletcher. The writ in the instant case also was defective in that it was not under the seal of the court, as required by ARCP Rule 4 (b). We have held that a writ of garnishment must meet the requirements applicable to summonses in civil cases. DeSoto, Inc. v. Crow, 257 Ark. 882, 520 S.W.2d 307 (1975). Actual knowledge of a proceeding does not validate a default judgment where there was, as here, a defective process. Tucker v. Johnson, supra. The default judgment should have been set aside.
Reversed and remanded. | [
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John I. Purtle, Justice.
Petitioners filed an original action in this court for a writ of prohibition against the respondent, Pulaski County Chancery Court (Third Division), praying that the respondent be prohibited from hearing and determining consolidated cases against petitioners. The petition is denied.
Petitioners were named defendants in an action filed in the Pulaski County Chancery Court by the Attorney General of the State of Arkansas, pursuant to the Consumer Protection Act. Ark. Stat. Ann. § 70-904 (Repl. 1979). The complaint sought to enjoin the petitioners from collecting certain charges from nursing home patients, to recover for past charges to patients, and to redress any unjust enrichment. After the complaints were filed the matter of an injunction was rendered moot but the chancellor refused to dismiss the complaints as to the other charges. The complaints have not been set for trial.
The object of the writ of prohibition is to prevent an inferior court from proceeding in a matter which is entirely without its jurisdiction. Duncan v. Kirby, Judge, 228 Ark. 917, 311 S.W.2d 157 (1958). Prohibition may also issue when an appeal is an inadequate remedy. Norton v. Hutchins, Chancellor, 196 Ark. 856, 120 S.W.2d 358 (1938). A writ of prohibition will not issue to prevent an inferior court from erroneously exercising its jurisdiction. Bassett v. Bourland, 175 Ark. 271, 299 S.W. 13 (1927). Prohibition may not be used as a substitute for appeal. Nor can it be used as a remedy to force transfer between law and equity courts. Butkiewicz v. Williams, Chancellor, 229 Ark. 556, 317 S.W.2d 15 (1958).
Petitioners rely upon the case of Curry, County Judge v. Dawson, Chancellor, 238 Ark. 310, 379 S.W.2d 287 (1964) to support their petition. We do not think Curry supports the present petition because there the court stated the rule that an election contest may not be heard by a court of chancery. This holding simply does not apply to the case before us.
Certainly the chancery court had jurisdiction to hear a motion to transfer to law but according to the record no such motion has been made. Therefore, the petition for a writ of prohibition must be denied.
Writ denied.
Hays, J., not participating. | [
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Per Curiam.
The Court of Appeals affirmed the Board of Review’s denial of unemployment benefits to petitioner, Farmer. Farmer v. Everett, 8 Ark. App. 23, 648 S.W.2d 513 (1983). We granted the petitioner’s petition to review that affirmance on May 2, 1983. After carefully studying the issues presented and the record, we are of the view that the petition was imprudently granted. Consequently, we dismiss the petition. As we have said, a denial of a petition for review does not imply approval or disapproval of the decision. Wilson v. City of Pine Bluff, 278 Ark. 65, 643 S.W.2d 569 (1982); Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979); Masingill v. State, 278 Ark. 641, 648 S.W.2d 62 (1983).
Petition dismissed. | [
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Donald L. Corbin, Justice.
E.P. Rainey died August 9, 1970. His will has previously been the subject of an appeal in this court. Holland v. Rainey, No. 77-306. This particular appeal involves two testamentary trusts. In his will, E.P. Rainey conveyed various tracts of land in Arkansas and Mississippi to two of his sons as trustees. The income from the trusts is for the benefit of his seven children and the corpus is to be distributed per stirpes to his children’s heirs. Appellants seek reversal of a judgment declaring their duties and powers with respect to the allocation of expenses between income and corpus. We are unable to reach the merits of this appeal because appellants have failed to abstract a necessary part of the record. Ark. Sup. Ct. R. 9(d). We therefore affirm. Peterson Indus., Inc. v. Farmer, 288 Ark. 298, 705 S.W.2d 8 (1986).
Appellants contend E.P. Rainey’s will contains ambiguous provisions with respect to their powers as trustees. “It is impossible for us to consider the appellants’ contentions, because counsel have not provided us with either an exact quotation of the instrument in question or with an abstract of it. We have no idea how it reads.” Zini v. Perciful, 289 Ark. 343, 344, 711 S.W.2d 477, 478 (1986).
The will is a written instrument which could have been abstracted in words. As is the case when deeds, contracts, or other instruments are being interpreted, the better practice would have been for counsel to have copied the will verbatim in the abstract. Id. Instead, in the argument portion of their brief, appellants quote selected portions of the will and then discuss those parts of the will they consider to be controlling. “Such a discussion does not comply with Rule 9(d), which requires an impartial abstract of such material matters in the record as are necessary to an understanding of the questions presented.” Napier v. Northrum, 264 Ark. 406, 411, 572 S.W.2d 153, 156 (1978). Without such an abstract of the will we cannot say what appellants’ powers are. In effect, appellants ask all seven members of this court to examine the entire will which is attached to the single transcript as an exhibit. “[F]or a hundred years we have pointed out, repeatedly, that there being only one transcript it is impractical for all members of the court to examine it, and we will not do so.” Zini, 289 Ark. at 344, 711 S.W.2d at 478. Further, even though our review of this case is de novo, our review is on the record as abstracted, not upon the transcript. Id.
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Tom Glaze, Justice.
This tort case involves appellee’s suit against appellant for appellant’s conversion of appellee’s wolf hybrid dog named Rambo. Appellant apparently responded to' appellee’s advertisement offering purebred Arctic tundra wolves for sale, and when she visited appellee concerning his advertisement, appellant observed Rambo, noticing he had a seriously infected left front leg. Later the same day, appellant called Joyce Hilliard, the chief investigator for a humane organization named Arkansans for Animals (AFA), and Dr. Carl Fulton, a veterinarian who had previously treated Rambo. Four days later, the appellant, along with Hilliard and Jean Duffy, the president of AFA and Saline County deputy prosecutor, returned to appellee’s property. The three women took pictures of Rambo and then went to the Faulkner County Prosecuting Attorney H. G. Foster to request legal advice. Later that day, the women confronted the appellee, threatening to prosecute him and to take Rambo from him. Jim Kirkpatrick, appellee’s friend, arrived and joined in the fray, and afterwards all parties agreed to take Rambo to Dr. Fulton’s clinic, where appellee left the dog for x-rays and further treatment. Appellant testified she returned to Foster’s office the same day to obtain an affidavit for a seizure warrant and to file animal cruelty charges in municipal court. The charges were later dismissed or nol prossed.
Dr. Fulton x-rayed Rambo’s leg the next day and amputated the leg two days later. Appellee kept in close contact with Fulton’s office during this period, but Fulton refused to permit appellee to take the dog home. About five days after Rambo’s surgery, Fulton was advised by Foster and the Faulkner County Sheriff that he could release the dog, but because Fulton did not have appellee’s correct telephone number, he was unable to reach appellee’s home to leave a message until another five days had passed. The day after he left appellee the message that Rambo was ready to be released, appellant picked up the dog from Dr. Fulton, telling him she had the authority to keep Rambo. Soon thereafter, appellee, who never saw the dog again, brought this conversion action against appellant.
At trial, the trial court denied appellant’s motion for summary judgment, claiming immunity from tort liability under Ark. Code Ann. § 16-6-105 (1987). Afterwards, a bench trial was held, and the trial judge found the appellant had converted the dog. Appellee was awarded $1,400 compensatory and $25,000 punitive damages. The judge also awarded appellee attorney’s fees in the amount of $2,500.
For reversal, appellant first argues appellee failed to present substantial evidence of conversion. Because this is an appeal from a bench trial, the standard of review is whether the trial court was clearly erroneous. ARCP Rule 52(a); Taylor’s Marine, Inc. v. Waco Mfg., 302 Ark. 521, 792 S.W.2d 286 (1990). Under either standard, however, the appellant’s argument has no merit. Appellant’s argument is two-fold. She initially contends that appellee suffered no violation of a possessory right to Rambo because she was protected under Ark. Code Ann. § 5-62-111 (1987), which provides as follows:
Any officer, agent, or member of a society which is incorporated for the prevention of cruelty to animals may lawfully interfere to prevent the perpetration of any act of cruelty upon any animal in his presence.
Basically, appellant claims that § 5-62-111 allowed her to interfere with appellee’s possessory right to Rambo because appellee had treated the dog inhumanely. At a minimum, she says the statute gave her the right to possess the dog until a determination was made as to who was entitled to its custody.
The appellant offered no evidence indicating that appellee actually inflicted an injury on Rambo, nor did the trial judge believe appellant’s story that appellee was inhumane by failing to seek treatment of Rambo’s infection. In fact, appellee testified that he had Dr. Fulton treat Rambo before appellant became involved and appellee, himself, continued that treatment at home. In addition, appellee’s paramedic friend helped with caring for Rambo and antibiotics were given him regularly. Dr. Fulton conceded that Rambo’s leg appeared much better on the day that appellee, Kirkpatrick and the three women brought the dog to Fulton’s clinic. In sum, the trial court simply found appellee had perpetrated no cruelty on his animal. Thus, based on the record before us, we cannot say the trial court was clearly wrong in refusing to apply § 5-62-111.
Appellant’s second reason for claiming appellee suffered no violation of his right of possession to Rambo is based upon her contention that appellee had abandoned his dog. Again, the trial court obviously believed appellee’s story to the contrary. In addition to that testimony of appellee set out above, appellee testified that he called Dr. Fulton on occasions after Rambo was left with Fulton, and visited Rambo after his leg was amputated. He stated that he tried everything he knew to get his dog back, but appellant told him that she and her friends would “see to it” that his dog would never be returned to him. The trial court simply did not accept appellant’s theory that appellee voluntarily abandoned his dog, and we hold that finding is not against the preponderance of the evidence.
To conclude appellant’s first point, we are left with appellant’s actions in this matter when determining if the trial court correctly found that she had converted appellee’s dog. Conversion is any distinct act of dominion wrongfully exerted over property in denial of, or inconsistent with, the owner’s right. McKenzie v. Tom Gibson Ford, Inc., 295 Ark. 326, 749 S.W.2d 653 (1988). The conversion need not be a manual taking or for the defendant’s use: if the defendant exercises control over the goods in exclusion, or defiance, of the plaintiffs right, it is a conversion whether it is for his own use or another’s use. Id. Here, appellant presented no order or judgment showing she had a right to possess the dog, and while she claimed she acted upon advice of the prosecutor or his deputy, the deputy prosecutor could not recall whether he told appellant she could take the appellee’s dog. Even so, appellant personally took possession of the dog and by her own account, gave it to an exotic pet farm where he was euthanized. Based upon the foregoing evidence, we hold that the trial court’s judgment finding that appellant converted the dog is not clearly against the preponderance of the evidence.
Appellant next claims that the trial court denied her motion for summary judgment because she was entitled to volunteer immunity from tort liability under Ark. Code Ann. § 16-6-105 (1987) which provides in part as follows:
A qualified volunteer shall not be liable in damages for personal injury or damage sustained by one who is a participant in, or a recipient, consumer, or user of, the services or benefits of a volunteer by reason of any act or omission of a qualified volunteer in connection with the volunteer except as follows:
* * *
(2) Where the qualified volunteer acts in bad faith or is guilty of gross negligence;
* * *
The record reflects that the trial court did not deny appellant’s motion until at the end of appellee’s case-in-chief and after the entire case was tried on its merits. In any event, this court has consistently held that denial of a motion for summary judgment is not an appealable order and that, even after there has been a trial on the merits, such denial order is not subject to review on appeal. Rick’s Pro Dive 'N Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991); Malone & Hyde, Inc. v. West & Co. of LA, Inc., 300 Ark. 435, 780 S.W.2d 13 (1989); Henslee v. Kennedy, 262 Ark. 198, 555 S.W.2d 937 (1977).
Appellant’s third point of appeal involves the exclusion of certain hearsay evidence about legal advice from a prosecuting attorney. During appellant’s direct examination, she testified that she went to see Faulkner County Prosecuting Attorney H. G. Foster on March 13, 1989, between her first and second visit to appellee’s property. She testified as follows:
Q. Did you have a meeting with Mr. Foster?
A. Yes, we did.
Q. What happened at that meeting?
A. At that time, he told us that —
MR. THOMPSON: Your Honor, I’m gonna object. If they want to introduce the results of a prosecution that they attempted, well, we’ll get into that, but if she wants to testify about what she and H. G. talked about, I’m gonna’ object.
THE COURT: I sustain your objection.
Appellant claims that the trial court erred by sustaining appellee’s hearsay objection because the statement was not offered for the truth of the matter asserted but merely to show that the statements were in fact made and relied upon. Ark. R. Evid. 801(c); see also, L. L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984); Gautney v. Rapley, 2 Ark. App. 116, 617 S.W.2d 377 (1981). Appellant also argues that the statements were crucial to her defense because they bore directly on the question of punitive damages and were necessary to prove that she acted in good faith and without malice.
We are unable to reach and discuss appellant’s argument because she made no offer of what her testimony would have been. As a consequence, we cannot say that prejudicial error occurred. Ark. R. Evid. 103(a)(2); National Bank of Commerce v. HCA Health Servs. of Midwest, Inc., 304 Ark. 55,800 S.W.2d 694 (1990); Goodin v. Farmers Tractor & Equipment Co., 249 Ark. 30, 458 S.W.2d 419 (1970).
In her fourth point of appeal, appellant argues appellee failed to prove the compensatory damages awarded by the trial judge. We agree. The proper measure of damages for conversion of property is the market value of the property at the time and place of the conversion. Sandusky v. First Nat. Bank, 299 Ark. 465, 773 S.W.2d 95 (1989).
Appellee purchased Rambo for $ 1,400, but when asked to give his opinion of the dog’s value, appellee stated that no doubt he could have sold him for $2,500 or $3,000. He further said that he would not have taken less than $5,000. However, when then asked if his dog would have brought those prices in its wounded condition, appellee responded no. Approximately three months had transpired and Rambo’s front leg had been amputated between the time appellee purchased the dog and appellant converted him. When confronted with the question of the dog’s value at the time of conversion, appellee honestly conceded he did not believe the three-legged dog was worth the amounts to which he had just testified. Accordingly, we must reverse and remand on this point.
Appellant’s next point challenges the lower court’s award of $25,000 punitive damages to appellee. Of course, the law is settled that exemplary or punitive damages are dependent upon the recovery of actual damages. Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979). Thus, because we have reversed the trial court’s award of compensatory damages, we need not address the parties’ arguments concerning punitive damages except to say the punitive award is also reversed and remanded for retrial purposes.
Finally, appellant contends the trial court’s award of $2,500 in attorney’s fees was improper. As a general rule, attorney’s fees are not allowed in Arkansas unless expressly authorized by statute. Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988). However, in any civil action in which the court having jurisdiction finds there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney, the court may award an attorney’s fee in an amount not to exceed $5,000, or ten percent of the amount in controversy. Ark. Code Ann. § 16-22-309(a)(l) (Supp. 1991). In awarding such fees, the court may pronounce its decision on the fees at the conclusion of the trial without written motion and with or without additional evidence, and the judgment for attorney’s fees, if any, shall be included in the final judgment entered in the action. Ark. Code Ann. § 16-22-309(c) (Supp. 1991). On appeal, the question as to whether there was a complete absence of a justiciable issue shall be determined de novo on the record of the trial court alone. Ark. Code Ann. § 16-22-309(d) (Supp. 1991).
Here, the trial court failed to mention attorney’s fees at the trial’s conclusion, but it did include such an award in its final judgment. Appellant is then able to question the validity of that award on appeal merely by requesting a de novo review of the question as to whether a justiciable issue existed below. Of course, our review reflects there was. Therefore, we also reverse the trial court’s $2,500 attorney’s fee award.
For the reasons stated above, we reverse and remand.
Appellant offers no evidence or argument that she was an officer, agent, or member of AFA entitling her to the protection of § 5-62-111, but we need not reach that issue. | [
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Jack Holt, Jr., Chief Justice.
The issue in this case is whether the trial court erred in granting the motion to dismiss made by the appellees, Jennifer and Jerry Undernehr. We find that it did and reverse and remand.
On May 17,1989, the appellant, The University Hospital of Arkansas (Hospital), filed the underlying action against the Undernehrs for the collection of a past-due hospital bill in the amount of $20,902.81. An affidavit of account was appended to the complaint, but it did not contain a detailed statement of account.
The Undernehrs filed a motion to dismiss on June 21, 1989, pursuant to Ark. R. Civ. P. 12, and alleged that the Hospital’s medical services had been provided in February 1987 and that the Hospital was barred by the two year statute of limitations codified at Ark. Code Ann. § 16-56-106 (1987). The Hospital responded and asserted that it was exempt from application of the statute of limitations via the sovereign exemption and specifically stated that “[t]here is no allegation in the motion to dismiss as to when the last payment was made, nor that no payment was made since the date of providing services. There is therefore nothing to demonstrate that the complaint is not timely, even if the statute were to apply.”
On October 3,1990, counsel for the Hospital wrote the trial court requesting that the motion to dismiss be ruled upon as a matter of law. On December 13, 1990, the trial court entered an order dismissing the action.
On appeal, the Hospital alleges two points of error: 1) the trial court erred in entering judgment under Rule 12(b) by considering facts not in the record without developing any factual record, and 2) the trial court erred in applying section 16-56-106(b), the two year statute of limitations, to an action brought by the sovereign.
Since we agree with the Hospital’s first point of error and reverse the trial court, we will confine our discussion to that argument.
In Mid-South Beverages, Inc. v. Forrest City Grocery Co., 300 Ark. 204, 778 S.W.2d 218 (1989) (citing Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989)), we noted that in reviewing a trial court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in a light most favorable to the plaintiff. It is improper for the trial judge to look beyond the complaint to decide a motion to dismiss.
Using this standard of review, the Hospital’s complaint and the attached affidavit of account do not reference the dates services were rendered, nor do they recite relevant payment history on the account. For the most part, they serve to allege a sum certain that “is now justly due and owing Plaintiff by Defendant.” Accordingly, although the Undernehrs claim in their motion to dismiss that the Hospital’s services were rendered in February 1987, there is nothing in the complaint form which the trial court could have discerned the applicable dates of occurrences that would have caused the statute to run or be tolled.
The Hospital also requests attorneys’ fees incurred in connection with this appeal pursuant to Ark. Code Ann. § 16-22-308 (Supp. 1989), which provides as follows:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.
However, this statute allows a trial court to assess a reasonable attorneys’ fee and is inapplicable upon appeal. See Ark. R. Civ. P. 2.
Accordingly, we reverse and remand for further proceedings. | [
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Robert L. Brown, Justice.
The appellant Donald Mobbs appeals from his conviction on six counts of incest, which resulted in consecutive sentences of ten years on each count, for a total of sixty years, and a fine of $30,000. He further appeals from the circuit court’s denial of his petition for post-conviction relief under Ark. R. Crim. P. 36.4, which was then in effect, on grounds of ineffective assistance of counsel. We affirm his conviction and the denial of his Rule 36.4 petition.
The facts are these. On January 2,1989, Sergeant Sherman Malcomb of the Cabot Police Department was informed by a teenage girl that she had been forced by the appellant to engage in various sexual acts with him. The girl also stated that she witnessed the appellant’s teenage stepdaughter performing sexual acts with Mobbs and another man. These acts were photographed and videotaped by the appellant, according to the girl. The police questioned the stepdaughter, who made a statement that Mobbs had taken the photographs. The police were further informed that two Polaroid cameras and a camcorder were located at Mobbs’s residence, along with films, tapes, and photographs of sexual acts. As a result of this interview, the officers obtained and executed a search warrant of Mobbs’s premises.
The Cabot police officers in conjunction with the Lonoke County Sheriff’s department seized various articles from the premises under the warrant on January 2, 1989. Wilma Mobbs, the appellant’s wife and the girl’s natural mother, was asked by Sheriff J.O. Isaac to notify the authorities if she found anything else. Five days later, Mrs. Mobbs discovered additional items in a tackle box in a storage shed, including multiple photographs of her daughter engaged in sexual acts with Mobbs. She reported her find to the sheriff who took custody of them.
On January 24, 1989, the prosecutor filed an information charging Mobbs with three counts of rape and three counts of promoting an obscene performance. A substituted information was filed on June 27, 1989, the day before trial, charging the appellant with six counts of incest from the summer of 1987 to January 2, 1989, under Ark. Code Ann. § 5-26-202 (1987), and three counts of promoting an obscene performance. The incest counts were severed and tried separately on June 28, 1989, and the conviction resulted.
The judgment and conviction order was not entered until July 18, 1989. On July 26, 1989, Mobbs’s trial attorney filed a notice of direct appeal. On July 29,1989, Mobbs, in his own hand, wrote a letter to the circuit court clerk alleging ineffective trial counsel on various grounds and asking for appointment of new counsel and declaration of a “mistrial.” The request was filed, but no action was taken on the request.
We considered the appeal and the Rule 36.4 petition in 1990 and remanded the matter for the circuit court’s consideration of Mobbs’s post-conviction request for relief. See Mobbs v. State, 303 Ark. 98, 792 S.W.2d 601 (1990). New counsel was appointed and a hearing was held on September 11,1990, at the conclusion of which the circuit court denied Mobbs’s petition and found that effective assistance of counsel had been provided. We now consider both the direct appeal and the denial of Rule 36.4 relief.
I. Post-Conviction Relief
Mobbs raises numerous points in support of his claim of ineffective counsel, but does not argue them all in his brief. We will consider only those points where argument is made.
The burden of proving ineffective assistance of counsel is heavy because counsel is presumed to have rendered effective assistance. Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986). In order to show ineffective counsel, Mobbs must meet the criteria set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984):
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
The appellant must further show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt. See Mays v. State, 303 Ark. 505, 798 S.W.2d 75 (1990), quoting Sutherland v. State, 299 Ark. 86, 771 S.W.2d 264 (1989).
Mobbs first alleges ineffectiveness in the trial counsel’s failure to request a continuance when the information was amended the day before trial. The amendment was substantial: the first information had charged the appellant with rape over a three-month period; the amended information charged six counts of incest over an eighteen-month peroid. Mobbs, however, failed to raise continuance as a ground for relief in his letter-petition. Nor did his newly appointed counsel do so at the hearing. Since the issue was not raised below, we will not consider it. See Elwood v. State, 297 Ark. 101, 759 S.W.2d 557 (1988); Gunn v. State, 296 Ark. 105, 752 S.W.2d 263 (1988).
We similarly answer Mobbs’s claims that trial counsel was ineffective in failing to object to the admission of seventeen photographs depicting nudity and various sexual acts with the stepdaughter and in failing to object to a single instruction to the jury containing multiple counts of incest. The points were not raised below in the petition or at the hearing and, hence, were not preserved for appeal.
The appellant does contend that his trial counsel failed to renew a motion for directed verdict at the close of all evidence. He did not mention this in his letter-petition, but his new counsel raised the issue at the hearing. The prosecuting attorney stipulated at the hearing that the second motion was made. Regardless of whether it was or not, failure to renew this motion is not grounds for post-conviction relief. See Philyaw v. State, 292 Ark. 24, 728 S.W.2d 150 (1987); Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984). We further hold, as discussed below, that the evidence for conviction was sufficient. Accordingly, it would have been error for the circuit court to have removed the fact questions from the jury’s consideration by a directed verdict. Id. Moreover, we are cognizant of the fact that the evidence against Mobbs was extensive in this case. In sum, prejudice to Mobbs was lacking.
Other points raised for relief are either without merit or were not argued to the circuit court. We note in particular Mobbs’s point that trial counsel’s cross-examination of the stepdaughter and his wife lacked vigor. The extent of vigor employed in the cross-examination of a state’s witness is a matter of trial strategy and is not justification for relief. See Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986). The argument has no merit.
The appellant also argues that trial counsel was lacking in his failure to challenge the constitutionality of the state’s incest statute. See Ark. Code Ann. § 5-26-202 (1987). In particular, he argues that the statute violates his due process and equal protection rights because it affords prosecution against a natural daughter for incest but not against a stepdaughter. This specific argument, however, was not raised at the hearing or by Mobbs in his letter-petition. What was raised initially was an allegation that the prosecutor arbitrarily decided not to prosecute the stepdaughter for incest. That argument differs in substance from the constitutional claim now advanced on appeal. An appellant cannot change his argument on appeal. See Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990). That is exactly what the appellant has done in this appeal, and we will not consider it.
■ Finally, Mobbs argues that he was deprived of a fair and full hearing because the court'truncated his case, rejected his arguments, and refused the testimony of two witnesses. These arguments have no merit. The circuit court received a proffered summary of the testimony of the two witnesses whom Mobbs wished to present and then the live testimony of one of those witnesses. Though somewhat vague, the appellant’s argument appears to be that these witnesses would have shown that the stepdaughter had engaged in contracts with other men for sex and was an accomplice, not a victim.
Counsel made the argument that the stepdaughter was an accomplice at trial. We find no error in the circuit court’s decision.
II. Direct Appeal
We similarly reject the appellant’s arguments on direct appeal.
We first consider the appellant’s challenge to the sufficiency of the evidence. He argues that the stepdaughter was an accomplice and that her testimony must, therefore, be corroborated. A victim of a crime is not an accomplice. Ark. Code Ann. § 5-2-404(a)(1) (1987); see also Johnson v. State, 288 Ark. 101, 702 S.W.2d 2 (1986). In 1986, we quoted with approval commentary to Ark. Stat. Ann. § 41-305 (Repl. 1977), now codified as Ark. Code Ann. § 5-2-404 (1987):
(a) It seems clear that the victim of a crime should not be held as an accomplice in its perpetration, though his conduct in a sense assists in the commission of the crime. . . . So, too, to hold the female an accomplice in a statutory rape on her person would be inconsistent with the legislative purpose to protect her against her own weakness in consenting, the very theory of the crime.
Camp v. State, 288 Ark. 269, 272, 704 S.W.2d 617, 619 (1986).
The appellant would have it that both stepfather and stepdaughter are culpable, since the stepdaughter was willing, and thus there was no victim. The General Assembly, though, has voiced its clear policy against incest by way of a criminal statute. We are not willing to go so far as to hold that in cases, such as the one before us, we have only perpetrators and accomplices and no victims. While a minor, the incest statute existed to protect the stepdaughter even assuming that she was a willing participant which we do not concede. We hold that the stepdaughter was a victim and that corroboration of her testimony was not required.
The stepdaughter testified to oral sex or sexual intercourse on a daily basis during the eighteen months charged in the indictment. This is sufficient to sustain a conviction on the six counts charged. The photographs serve only to bolster the state’s case, but, again, corroboration is not required. The fact that some of the photographs may depict conduct that preceded the time period charged in the information is, therefore, not fatal to the appellee’s case.
Mobbs next asserts error in the court’s denial of his motion to suppress the photographs found by Mrs. Mobbs in the tackle box and delivered to the authorities. He questions specifically the initial search warrant issued and executed by the police on January 2, 1989, and the questioning of his stepdaughter which preceded the warrant’s issuance.
This argument misses the mark. The questioning of the stepdaughter and the search warrant did not result in seizure of the photographs. Mrs. Mobbs’s subsequent discovery five days later did. We have held that the exclusionary rule does not apply to private individuals. See Winters v. State, 301 Ark. 127, 782 S.W.2d 566 (1990). Moreover, as in Winters, we cannot say that this specific search was directed by Sheriff Isaac or was a joint endeavor with him, even though five days before he had asked Mrs. Mobbs to notify him if any materials depicting sexual conduct were found. Admittedly, the initial questioning and search warrant may have been a catalyst for the ultimate discovery. But the sheriffs request to Mrs. Mobbs was casual and was not a mandate, and because of this, it was not sufficient to establish a connection between Mrs. Mobbs’s find and official action. See Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989); Winters v. State, supra.
Mobbs, lastly, points to the admission into evidence of two photographs depicting a nude female torso bound with rope. The stepdaughter’s face is not clearly identified. The stepdaughter first told Sgt. Malcomb on January 2, 1989, that she did not recall being tied by rope. At trial, she did not deny that the incident had occurred but testified that she did not recall when it happened. Sheriff Isaac stated at trial that he took the photographs of part of a videotape, which showed the stepdaughter being bound with a large cord or nylon rope. The combined testimony of the sheriff and the stepdaughter was sufficient to authenticate the two exhibits and to prove that the photographs were what the prosecutor claimed them to be. That is all our rule requires. See Ark. R. Evid. 901.
Affirmed.
Ark. R. Crim. P. 36.4 was effective from July 1, 1989, to January 1, 1991. It was repealed and Ark. R. Crim. P. 37 was reinstated by Per Curiam order. In the Matter of the Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. 746, 797 S.W.2d 458 (1990). | [
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Steele Hays, Justice.
By this appeal we are asked to hold that workers’ compensation benefits are not the exclusive remedy of an employee injured in the course of his employment by an uninsured motorist where those benefits are provided by the employer’s self-insurance. We decline that request and affirm the trial court.
In September, 1987 Troy Allen Gullett was injured in a motor vehicle collision. Gullett was a passenger in a vehicle belonging to his employer, Pulaski County, and being driven by another county employee. The other vehicle was driven by Cecily Brown. Gullett brought this action at law against Cecily Brown, Gallagher-Bassett Services, Inc., as administrator of a self-insurance plan of Pulaski County, and Jason Ruby and others as director and representatives of Metroplan Risk Management Association. The complaint alleges that Brown’s negligence was the proximate cause of the accident, that Brown was uninsured and that at the time of the occurrence Pulaski County had in effect an agreement to provide uninsured motorist coverage on its vehicles through a self-insurance agreement administered by Gallagher-Bassett which coverage inured to Gullett’s benefit. Gullett sought damages against the defendants in the sum of $100,000, costs and attorneys fees.
Cecily Brown generally denied the allegations of the complaint and the remaining defendants filed a motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state facts upon which relief could be granted. Ark. R. Civ. P. 12(b)(6). The motion alleged that Pulaski County was self- insured for workers’ compensation, that Gullett’s injuries were incurred in the course of his employment, that Gullett had filed for and was receiving workers’ compensation benefits and such benefits constitute an exclusive remedy under the Arkansas Workers’ Compensation Act. The motion further alleged that Pulaski County is a self-insured for uninsured motorists.
In response, Gullett alleged that Pulaski County had purchased a plan of insurance through the Metroplan Risk Management Association and said uninsured motorist was reinsured through an insurance carrier and administered by GallagherBassett. Gullett admitted his injuries arose from the scope of his employment but denied that workers’ compensation was an exclusive remedy where the injured employee is a beneficiary of a policy of uninsured motorist coverage, citing The Travelers Insurance Co. v. National Farmers Union Property and Casualty Co., et al., 252 Ark. 624, 480 S.W.2d 585 (1972).
The circuit court entered an order finding that Cecily Brown was an uninsured motorist at the time of the accident, that Gullett had collected workers’ compensation benefits under coverage maintained by Pulaski County through Metroplan Risk Management Association, that Pulaski County had in effect an agreement through the association “to provide uninsured motorists coverage for vehicles owned by Pulaski County and that said self-insurance was administered by Gallagher-Bassett Services, Inc.” Upon those findings the complaint was dismissed as to all defendants but Cecily Brown. Subsequently, Gullett took a non-suit as to Cecily Brown and appealed from the order of dismissal.
Appellant relies entirely on the case of Travelers Insurance Co. v. National Farmers Union Property and Casualty Co., et al., supra. In Travelers, the employee, Calvin McCord, was killed when he was struck by an uninsured motorist. Travelers paid workers’ compensation to McCord’s dependents and sought subrogation against the proceeds recovered by McCord’s estate under McCord’s uninsured motorists coverage through National Farmers Union Property and Casualty, a policy bought and paid for by McCord. We affirmed the trial court’s denial of subrogation by Travelers against uninsured motorist benefits payable to Calvin McCord’s administratrix. Travelers relied primarily on Ark. Code Ann. § 1 l-9-410(a)(l) (1987), providing that the making of a claim for workers’ compensation “shall not affect the right of the employee, or his dependents, to make claim or maintain an action in court against any third party for such injury” and awarding the compensation carrier two-thirds of the net proceeds. Noting that uninsured motorist coverage is a form of accident or indemnity insurance, we said that if Travelers could subrogate as to McCord’s own uninsured motorist recovery, there would be no reason why McCord’s health, accident and hospital insurance benefits would not also be subject to subrogation by a workers’ compensation carrier:
A workmen’s compensation carrier has no more right under the subrogation statute to benefit from this type of insurance which a covered employee elects to take at his own expense than it would from the proceeds of health, accident, or hospital insurance. [Our emphasis.]
We regard it as a significant distinction that in Travelers the uninsured motorist coverage was provided under the employee’s own policy, acquired by the employee and to which Travelers had no claim whatever. There are frequent references throughout that opinion to the fact that it was McCord who bought and paid for the policy under which the benefits were provided and it is clear this court placed considerable emphasis on that circumstance, which, as we have seen, is wholly absent in the case before us. We also note that in Travelers the court never reached the exclusivity rule, an additional indication of the dissimilarity between the two cases.
Turning elsewhere for guidance, we believe the case of Mitchell v. Philadelphia Electric Company, 422 A.2d 556 (1980), is instructive. Mitchell was injured while a passenger in a truck owned by his employer, Philadelphia Electric Company. The injuries were caused by an uninsured motorist. The electric company was self-insured. Mitchell brought this action against his self-insured employer to recover the equivalent of uninsured motorists benefits.
The electric company defended on the theory that Pennsylvania’s uninsured motorists statute, like our own, [Ark. Code Ann. § 23-89-403 (1987)] was not obligatory and that workers’ compensation benefits were an exclusive remedy as to any cause of action by an employee against an employer. Conceding that a claim for uninsured motorist benefits sounded more in contract than in tort, the court held nevertheless that the language of Pennsylvania workers’ compensation act does not except contract actions from the exclusivity rule and sustained the trial court’s dismissal of Mitchell’s asserted action at law. That holding was reaffirmed in Lewis v. School District of Philadelphia, 538 A.2d 862 (1988).
Our own statute, Ark. Code Ann. § 11-9-105 (1987), like Pennsylvania’s, makes no exception for contract actions and in numerous decisions we have interpreted the act as exclusive of all other rights and remedies. See, e.g., Seawright v. U.S.F.&G. Co., 275 Ark. 96, 627 S.W.2d 557 (1982):
The rights and remedies herein granted to an employee ... on account of injury or death, shall be exclusive of all other rights and remedies of such employee, his legal representative, dependents, or next of kin, or anyone otherwise entitled to recover damages from such employer. . . .
For the reasons stated the order is
Affirmed. | [
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Per Curiam.
The appellant, by his attorney, John F. Gibson, Jr., has filed a motion for a rule to require the clerk to file the record in this case after the expiration of the time allowed. The attorney admits that the delay in filing the record was his fault.
The motion for a rule on the clerk is granted. See our per curiam order of February 5, 1979, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Purtle, J., not participating. | [
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Steele Hays, Justice.
Appellants Michael Ashing and Brenda Taulbee were charged with first degree murder of Iris Taulbee, Brenda’s mother, who was shot and killed on August 23, 1984. A motion was made to transfer the cause to juvenile court on the grounds that Michael Ashing was sixteen and Brenda Taulbee was fourteen the date of the murder. The motion was denied after a hearing and appellants were tried in circuit court. The jury returned a verdict of guilty of murder in the first degree, and Taulbee and Ashing were each sentenced to fifteen years.
Act 390 of 1981 [Ark. Stat. Ann. § 45-420 (Supp. 1983)] deals with the procedure for transfer of a juvenile’s case and provides in part:
In making the decision whether to retain jurisdiction of the case or to transfer the case to another court having jurisdiction over the matter, the court shall consider only the following factors:
(a) The seriousness of the offense and whether violence was employed by the juvenile in the commission of the offense.
(b) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts.
(c) The prior history, character traits and mental maturity, and any other factors which reflect on the juvenile’s prospects for rehabilitation.
On appeal appellants maintain that the court did not take into consideration all three elements of the statute. We reject the argument.
The first case to apply this statute was Franklin v. State, 7 Ark. App. 75, 644 S.W.2d 318 (1983). There the court noted that under an earlier act, Act 451 of 1975, the question of the transfer of a case of this nature to the juvenile court was discretionary with the trial judge and our cases had held the ruling would not be disturbed unless that discretion was abused. The Franklin court went on to say that under the current act, Act 390 of 1981, the judge shall, on his own motion or the motion of either party, conduct a hearing on the question of transfer and noted that the act narrowed the exercise of the judge’s discretion to a consideration of the three factors mentioned in the act.
In Franklin, the appellant had committed rape, aggravated robbery and theft. The court said the “seriousness of the crimes and the violence with which they were perpetrated would alone appear to be sufficient to sustain the court’s refusal to transfer these causes to the juvenile court.” The court found the second criterion not fully applicable, for there were no adjudicated offenses from which past efforts to treat and rehabilitate the juvenile could be evaluated. The court noted, however, there had been previous criminal activity. There was testimony that the prospects of appellant’s rehabilitation were poor — violent temper, hostility, and lack of remorse. And volition and premeditation were demonstrated by deliberate attempts to cover up the crime. In overruling the motion to transfer, the trial judge gave his reasons and demonstrated that consideration had been given to all of the criteria set forth in § 45-420.
In this case, it does not appear that proof of each factor was necessarily adverse to the appellants. However, there is no requirement in the statute that equal weight be given to each factor, or that proof on all factors must be against the appellants in order for the court to retain jurisdiction. Other jurisdictions with similar statutes have reached the same conclusions. People v. Taylor, 76 Ill.2d 289, 29 Ill. Dec. 103, 391 N.E.2d 366 (1979); Hazell v. State, 12 Md.App. 144, 277 A.2d 639 (1971).
Here the nature of the crime was given primary consideration by the trial court. The appellants were dating each other and Mrs. Taulbee disapproved. The appellants discussed how they might murder her so they could “get on with their lives,” and agreed that Michael would kill Mrs. Taulbee. He came to the Taulbee trailer late at night with a gun belonging to his father. Michael told Mrs. Taulbee there was some trouble at his house and while they discussed the matter he shot her in the back of the head. Michael and Brenda left the trailer but returned after a few minutes to see if Mrs. Taulbee was still alive. Michael then proceeded to shoot Mrs. Taulbee until the gun was empty. Michael and Brenda disposed of the murder weapon and spent several hours deciding how to conceal their participation in the murder. When initially questioned by police, Brenda relayed the story she and Michael had devised.
The seriousness and violence of this crime might alone be sufficient to sustain the refusal to transfer to juvenile court, but additionally, there was no significant showing on behalf of the appellants for the prospects of rehabilitation. Under the circumstances the trial court’s discretion in refusing to transfer the cases was not abused.
The appellant urges there is no “analysis” by the trial court in reaching its conclusion. There is no requirement in the act that a statement of reasons be given, even so, the record shows the foundation of the court’s finding and provides a sufficient basis for review. It is clear enough the trial court found that evidence in support of the motion to transfer did not outweigh the seriousness of the offense. Quoting from the record:
The Court just feels that after considering the evidence and the facts in this case that a charge of first degree murder as indicated by the facts in this case is not one that should be dealt with by the Juvenile court. Many of the matters that have been suggested by the attorneys. . . are matters that the Court feels can properly be made to a jury for its consideration. . . . The Court is going to hold that considering all the facts of this matter, and for the nature of the charge, that this is a case where the defendants should be brought to trial before a circuit court.
As the second point on appeal appellants take a novel approach to Ark. Stat. Ann. § 41-617, which provides for the charging of juveniles of certain ages in either circuit or juvenile court. That portion of the statute reads:
(2) If a person was at least fifteen (15) years of age but less than eighteen (18) years of age at the time of the conduct alleged to constitute an offense, he may be charged either in circuit, municipal or juvenile court. If he is charged in circuit or municipal court, such court may enter any order waiving jurisdiction and transfer the proceedings to juvenile court. If a person fourteen (14) years of age commits first degree murder, second degree murder, or rape [,] such person may be prosecuted by the prosecuting attorney at his discretion, or if the prosecutor does not choose to prosecute such person, proceedings shall be instituted against such person in the appropriate juvenile court. (Our italics).
Appellants argue that by using the word “commits,” the statute requires proof by the state that a person fourteen years of age is actually guilty of the crime charged before jurisdiction can be retained in circuit court. But that would require a strained interpretation of the statute. In the context of the act, the intent of the legislature is clear: If a person fourteen years of age is charged with first degree murder, the prosecuting attorney has the discretion to decide whether such person is charged in circuit court. It is our duty, when the context so indicates, to substitute one word for another to give effect to what was evidently the intention of the legislature. State v. Banks, 271 Ark. 331, 609 S.W.2d 10 (1980).
Here, the context alone is sufficient to make the intent clear, and that conclusion is bolstered by the language of the emergency clause to Act 793 of 1981, amending the original act which gave exclusive jurisdiction over fourteen year olds to juvenile court. The legislature determined that for certain offenses fourteen year olds could be prosecuted as adults, and the emergency clause of Act 793 indicates the intent was to adopt stronger measures than were provided by the existing law:
It is hereby found and determined by the General Assembly that the present Arkansas law provides that a person who is fourteen years of age at the time of commission of a crime may not be prosecuted for such offense; that there are many instances in which persons of fourteen years of age have committed premeditated murder but due to the present law can only be dealt with as juveniles; that this situation results in a mockery of justice and that the Act is immediately necessary to allow persons fourteen years of age to be prosecuted for criminal offenses. . .
Additionally, while recognizing that penal statutes áre given a strict construction, the rule is not so rigid that it does not give way to the obvious legislative intent or bow to the plain policy and purposes of the statute. Sutherland, Statutory Construction, § 59.06. The rule of strict construction is not the enemy of common sense and does not require a literal interpretation leading to absurd consequences. Such a reading should be discarded in favor of a more reasonable interpretation. Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985); Fairchild v. State, 286 Ark. 194, 690 S.W.2d 355 (1985);Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980).
What appellant suggests would result in a clearly absurd procedure and common sense dictates the more reasonable interpretation, as stated above.
Affirmed.
Purtle, J., not participating.
This approach appears to be constitutionally firm. See People v. Taylor, 76 Ill.2d 289, 29 Ill. Dec. 103, 391 N.E.2d 366 (1979) (discussing the constitutionality of its juvenile transfer procedures in light of Kent v. United States, 383 U.S. 541 (1966). | [
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Robert H. Dudley, Justice.
The sole issue on appeal is whether the free distribution of samples of prescription products by the appellee, Dunhall Pharmaceuticals, Inc., is subject to a sales tax. The trial court held the distribution was not taxable. We affirm.
The Arkansas Gross Receipts Tax is applicable when there is a transfer of either title or possession for a valuable consideration. Ark. Stat. Ann. § 84-1902 (Repl. 1980). Obviously, when the samples were distributed there was a transfer of title and possession. The issue is whether the distribution was for a valuable consideration. The scant determinative facts before us are contained in the following stipulation:
Between November 1, 1979 and October 31, 1982, Appellee gave samples of prescription flouride products and gels without charge to a number of Arkansas dentists.
The State argues that there was a valuable consideration in the form of advertising. That argument asks us to reverse the trial court upon sheer speculation, and not upon the stipulated facts.
The stipulation does not show the method of distribution; it does not show whether the sample contained any printing, printed materials, or whether any representations were made about them. Thus, if the samples were mailed to the dentists, no advertising was shown. If they were delivered by representatives, no representative advertising was shown. The stipulation offers no clue about the reason for the distribution. It does not reveal how particular dentists were selected as distributees or how many of them received an unknown quantity of samples. The stipulation does not tell us whether the dentists even know the name of the manufacturer or distributor of the samples. A valuable consideration in the form of advertising is simply not shown by the fact stipulation.
The stipulation contains no evidence of consideration.
Affirmed.
Purtle, J., not participating.
George Rose Smith, J., concurs. | [
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Frank Holt, Justice.
This appeal results from the granting of appellees’ motion for summary judgment.
On September 3, 1970, Henry Bryant Hunt received a compensable injury for workmen’s compensation benefits. His injuries required home nursing care. His wife, the appellant, resigned her regular employment on September 10, 1970, in order to devote full time to the home nursing care of her husband. On January 7, 1971, the Hunts employed appellee Silas Brewer, Jr., to represent them in their claim for workmen’s compensation benefits. Appellant was appointed guardian of the estate of her husband. James H. Larrison, Jr., became associated with Brewer following Brewer’s employment by the Hunts and took over the case. Because of some misunderstanding with the appellant, he was relieved by her as counsel in May, 1974, before any hearing had been held on the claim. On July 8, 1974, Brewer appeared as counsel for appellant before the administrative law judge. This was the first hearing held in the matter. Brewer claimed benefits for (1) safety violation, (2) nursing services, (3) medical and related expenses, and (4) attorneys fees. A month later, or in August, 1974, Brewer was relieved as counsel for appellant and has had no further con nection with the presentation of the claim. Appellant secured other counsel, and at a hearing on October 1, 1975, the matter relating to the claim for payment of nursing services by appellant was again presented. The administrative law judge held appellant was entitled to receive payment for nursing care in the amount of $80 per week. However, he did not state the commencement date for such payments. On appeal on April 9, 1976, the Commission affirmed the findings of the administrative law judge and increased the award of benefits for nursing care to $100 a week to commence on July 8, 1974. We affirmed the Commission’s findings in Dresser Minerals v. Hunt, 262 Ark. 280, 556 S.W. 2d 138 (1977).
Appellant then filed this action alleging that appellees were guilty of negligence in that they failed and refused to present a claim for nursing care. She claimed that she had been damaged in the amount of the value of her nursing care between December, 1970, and July, 1974, at the rate of $100 per week. Appellees filed a motion with supporting affidavits for summary judgment. Appellant filed her counteraffidavit along with one by Dorothy Cunningham. Summary judgments were entered. Hence this appeal contending that the trial court erred in granting summary judgments.
A summary judgment is proper whenever no genuine issue exists as to a material fact, and the moving party is entitled to judgment as a matter of law. Ark. Stat. Ann. § 29-211 (Repl. 1962) and Purser v. Corpus Christi St. Nat'l Bank, 258 Ark. 54, 522 S.W. 2d 187 (1975).
The counteraffidavit of Dorothy Cunningham is of no support to appellant’s position inasmuch as she merely states conclusions of law, other than the undisputed fact that appellant left her employment to devote full time to nursing care for her husband on September 10, 1970. In appellant’s affidavit, she asserted Brewer failed and refused to present evidence in his possession on July 8, 1974, which would show that she was entitled to nursing care benefits from September 10, 1970, to the date of the hearing and on into the future; there was not proper preparation for the hearing on July 8, 1974; her attorneys, the appellees, failed or refused to establish that the nursing home care should begin on September 10, 1970; and the appellees failed and refused to present all medical data in their possession at the time of the hearing on July 8, 1974. The thrust of appellant’s argument is that the appellees were negligent in failing and refusing to timely present evidence as to when her claim for nursing services began.
Appellant’s counteraffidavit is nothing more than a statement of legal conclusions rather than a factual issue in view of the record in this case. At the first hearing, Brewer did claim benefits for nursing services. The opinion of the administrative law judge recites the following:
3. Nursing Services: This issue was partially covered at the hearing but the claimant’s evidence concerning the value of such services was incomplete and the record was held open for additional evidence. (Italics supplied.)
Approximately a month after the first hearing, appellant relieved Brewer as her counsel and secured the services of other attorneys. Her substitute counsel pursued the matter of nursing care at a subsequent hearing at which time $80 a week was awarded. No particular time, however, was specified by the administrative law judge as to when payment was to begin. The full Commission, on appeal, increased the nursing benefits from $80 to $100 a week. For the first time, a specific date, July 8, 1974, was selected as to when nursing care benefits should begin. On appeal to this court, Dresser Minerals v. Hunt, supra, we said:
The commission explained its selection of a somewhat arbitrary date by pointing out that the claimant did not prove by a preponderance of the evidence that the nursing services award should begin on any certain date. That explanation is true. The claimant's evidence was not directed to that precise point. (Italics supplied.)
The record clearly reflects that the issue of nursing services was, through Brewer’s efforts, joined at the first hearing. Brewer, by appellant’s choice, did not represent her at the time she failed to show by a preponderance of the evidence as to when the award of nursing services should begin. When appellant’s allegations are viewed most favorably, it cannot reasonably be said there was a fact question as to any negligence whatsoever on the part of Brewer with respect to appellant’s failure to convince the Commission that she was entitled to nursing benefits for a longer period of time than was approved by the Commission.
Larrison’s services were not utilized by appellant until sometime after Brewer had been engaged by the appellant. His services were terminated by her prior to the first hearing on July 8, 1974. Obviously, the motion for a summary judgment on behalf of Larrison was proper.
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John I. Purtle, Associate Justice.
We granted appellant’s petition for certiorari in this case pursuant to Rule 29(6)(a) and (c). The court of appeals, in a split decision, affirmed in part and reversed in part. In granting certiorari we will consider this case as if were filed in this Court from the beginning. However, this does not imply we could not take jurisdiction of less than the entire case. Rule 29 (1) designates matters which should have been filed in this Court originally and are included by reference in the provisions of Rule 29 (6) (a). Constitutional and statutory interpretation arguments are interwoven throughout the appeal and it would not be practical to separate them for purpose of consideration by this Court.
The original appeal was from a jury conviction of appellant in the Lawrence County Circuit Court. The conviction was on one count of conspiracy to commit bribery and six counts of bribery. Appellant was sentenced to 7 one-year periods of confinement which were to run consecutively.
On appeal it is urged that the court committed many prejudicial errors. One alleged error is that it was prejudicial to force appellant to trial on a 22-count information filed by the prosecuting attorney which counts were identical to two indictments previously returned by the grand jury. These grand jury indictments were still pending at the time of the trial. The other alleged errors concern interpretation of statutes and rules of evidence. Due to the complexity of the grounds urged for reversal, it is deemed appropriate to deal with them separately in order of the argument. We find prejudicial error and remand for a new trial.
The facts of this case reveal appellant was named in three separate indictments by the Independence County Grand Jury on October 20, 1977. Two of the indictments charged appellant with bribery and conspiracy to commit, bribery. Several defense motions were filed prior to November 18,1977, when appellant was again called before the grand jury. When he appeared before the same grand jury, which had previously indicted him, he was offered a form of immunity. The circuit judge had signed some immunity forms with the name of the witness left blank. In this case the prosecuting attorney wrote appellant’s name on one of the improper blank forms which had been signed by the judge. The judge was not in the county on this date. On advice of counsel, appellant exercised his Fifth Amendment rights and refused to testify. The next day appellant filed a motion attacking the entire grand jury proceedings. A conference was held in Jackson County on July 21, 1978, at which time the court granted a defense motion to change the venue to Lawrence County and scheduled the trial to commence on August 21, 1978. A pretrial hearing was held in Independence County on August 11, 1978, at which time the appellant was arrested as he entered the courthouse. The arrest was based upon an information which had been filed on August 8, 1978. The 22-count information contained the identical allegations included in two of the earlier indictments. Both oral and written objections were filed attacking the information. Appellant specifically requested the indictments be dismissed in view of the subsequent information filed on the same matters.
The trial commenced before a jury in Lawrence County on August 21, 1978. The appellant insisted the indictment should be dismissed but his motions and request were denied. The last motion to quash the indictments was made orally during the trial at the time appellant was seated in the witness stand. The court again rejected the request to quash the grand jury indictment and appellant elected not to testify. There had been no request that the third indictment be quashed, and we are unaware of the charges contained in that indictment. During the course of the trial testimony of an alleged co-conspirator was presented, over appellant’s objection and request for a limiting instruction. The court declined to give a limiting instruction at the time the testimony was given but indicated it might be given later. At the close of the trial the court declined to give a limiting instruction apparently on the theory that the co-conspirator’s testimony had been properly connected by evidence independent of the testimony of the co-conspirator. Also, a mistrial was denied when one witness testified appellant had tried to get him to commit perjury in another case. The court instructed the jury to disregard this testimony. Another witness gave unresponsive testimony to the effect that he was scared to tell the grand jury the truth because he feared his family might be harmed. There was no other evidence indicating a basis for such fear nor did the witness furnish any supporting testimony upon which the fear was alleged to be predicated. Another motion for mistrial was denied by the court. A former sheriff testified he had made an investigation into the charges in this case and decided they were true. A request for a mistrial was again denied and the jury was again told to disregard this opinion evidence. One Buckshot Nicholson identified a written statement he had given the prosecutor three days prior to the trial. This statement was his version of some of the facts to which he was testifying at the trial. The written statement was admitted into evidence and submitted to the jury over the objection of appellant.
A bootlegger testified she had a telephone conversation with appellant and the conversation was recorded. Her telephone was tapped by the state with her consent and the recorded conversation was introduced into evidence over the objection of appellant. This same bootlegger was alleged to be a co-conspirator. During the closing summation by the prosecutor he made the statement that he would like to know what the appellant had to say about it. (Appellant had not taken the stand.) Also, he argued in his rebuttal that if the jury only fined appellant his father would pay it for him. The trial court had, on motion of the appellant, directed him not to discuss the penalty because it had not been discussed in his summation nor had the appellant’s attorney discussed it. Again the motion for mistrial was denied. Appellant was convicted of seven of the 22 counts and sentenced to 7 one-year sentences, to run consecutively.
I.
THE TRIAL COURT ERRED IN FORCING THE DEFENDANT TO TRIAL ON THE INFORMATION WITHOUT FIRST QUASHING THE TWO PRIOR INDICTMENTS ON THE IDENTICAL ALLEGATIONS.
We cannot agree with the state’s contention that this argument is totally absurd, frivolous, and an affront to the intelligence of anyone capable of reading the record and statute. Ark. Stat. Ann. § 43-1031 (Repl. 1977) states:
If there shall be, at any time, pending against the same defendant, two (2) indictments for the same offense, or two (2) indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment, and shall be quashed.
As we read the statute, it requires the first of duplicate indictments to be quashed. Appellant’s motion to quash these two prior identical indictments was denied up through the beginning of appellant’s defense at the trial. We have held this statute is not self-executing. In State v. Dimler, 251 Ark. 753, 475 S.W. 2d 152 (1972), we stated:
. . . Also, the statute cited by appellant is not self-executing, i.e., the first indictment is not automatically suspended or superseded when a second information is filed, but only after an order has been entered. *** It is thus apparent that the court must enter an order quashing the first indictment or information before the provisions of the statute become effective; indeed, the statute itself uses the language “shall be quashed”, and even then, such action would have to be taken before a trial of the defendant on information. . . .
It may well be that appellant could have successfully pleaded former jeopardy if he were tried and convicted on the still pending grand jury indictments. However, he should not be put to such inconvenience and expense in view of the plain meaning of the statute. Since the statute is mandatory and in view of our prior holding in Dimler, supra, we find the court erroneously failed to quash the two pending grand jury indictments upon motion of appellant.
II.
THE TRIAL COURT ERRED IN REPEATEDLY REFUSING TO GIVE A LIMITING INSTRUCTION WHEN THE PROSECUTION OFFERED INTO EVIDENCE, FROM THE OUTSET OF THE TRIAL, STATEMENTS OF ALLEGED CO-CONSPIRATORS.
Statements of alleged co-conspirators are inadmissible as hearsay unless they are vicarious admissions. The state ments must be connected by other evidence which establishes the conspiracy independent of the statement. The existence of the conspiracy must be independently proved before the jury is allowed to consider statements of co-conspirators. Glasser v. United States, 315 U.S. 60 (1941). The trial court has discretion to vary the order of proof. Dyas v. State, 260 Ark. 303, 539 S.W. 2d 251 (1976). In Dyas we stated:
We have held that it is within the discretion of the trial court to permit the statement of an alleged conspiracy to be introduced at the prosecution of a fellow conspirator before evidence tending to prove the conspiracy has been introduced. (Cites omitted.) Here, as in Easter, it was later in the testimony of the same witness that the evidence tending to establish the conspiracy was introduced and it was a matter within the sound judicial discretion of the court to control the order in which the testimony should be adduced.
Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001, Rule 104 (b) (Repl. 1979), states:
Relevancy Conditioned on Fact. Whenever the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or in the court’s discretion subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
We do not find that we have had occasion to interpret Rule 104. The plain meaning of this statutory rule indicates the trial court has discretion in the order of admitting testimony of a co-conspirator. Uniform Rule of Evidence 105 states:
Whenever evidence which is admissible as to one (1) party or for one (1) purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
Thus it would appear in reading both riiles that it was the duty of the court to grant a limiting instruction. However, the court had discretion as to the order of admissibility. The 8th Circuit Court of Appeals considered a similar situation in United States v. Bell, 573 F. 2d 1040 (8 Cir.) (1978), and therein stated:
. . . caution the parties (a) that the statement is being admitted subject to defendant’s objection; (b) that the government will be required to prove by a preponderance of the independent evidence that the statement was made by a co-conspirator during the course and in furtherance of the conspiracy; (c) that at the conclusion of all the evidence the court will make an explicit determination for the record regarding the admissibility of the statement; and (d) that if the court determines that the government has failed to carry the burden delineated in (b) above, the court will, upon appropriate motion, declare a mistrial, unless a cautionary instruction to the jury to disregard the statement would suffice to cure any prejudice. . . .
Although AMCI 201 was not in effect at the time of the trial, it essentially sets out what we believe to be the best rule in handling the admission of testimony of co-conspirators. In view of the requirement that the jury must find beyond a reasonable doubt that the conspiracy did in fact exist, it appears a limiting instruction should have been given at some time during the trial. Of course, this question will not arise at the retrial of this case because AMCI 201 is now available for use in such cases and should be given, at sometime during the proceeding, upon request by the defendant.
III.
THE TRIAL COURT ERRE D IN FAILIN G TO GRANT A MISTRIAL WHEN THE PROSECUTING ATTORNEY ELICITED TESTIMONY FROM A PROSECUTION WITNESS TO THE EFFECT THAT APPELLANT HAD SUBORNED PERJURY IN A PREVIOUS, UNCONNECTED CASE.
During the state’s presentation of the case in chief, testimony of a police officer was elicited which indicated appellant had attempted to persuade the officer to commit perjury in an earlier unconnected case. Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001, Rule 404 (b) (Repl. 1979), states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Both parties agree this testimony was improper. We agree it was improper and obviously the trial court agreed in view of the fact that the jury was instructed to disregard this testimony. Obviously, this will not happen at the next trial. There was no attempt to bring the testimony in under any exception to Rule 404 (b). Aside from the rule, we have many times held evidence of another crime, independent and unconnected to the one under consideration, is inadmissible. It is usually considered prejudicial error. Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954); Rios v. State, 262 Ark. 407, 557 S.W. 2d 198 (1977); Satterfield v. State, 245 Ark. 337, 432 S.W. 2d 472 (1968); and Cobb v. State, 265 Ark. 527, 579 S.W. 2d 612 (1979).
IV.
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION FOR A MISTRIAL WHEN A PROSECUTION WITNESS GAVE UNSOLICITED TESTIMONY TO THE EFFECT THAT THE APPELLANT WAS A DANGEROUS MAN.
One witness made a voluntary and unsolicited statement to the effect that the reason he failed to tell the grand jury the truth was because he feared for the safety of his family. At this point the prior inconsistent statement had not been mentioned. This was the only evidence in the record indicating appellant was a dangerous man. After objection by appellant’s counsel the court permitted the witness to repeat the same statement again. This witness may have subsequently had an opportunity to explain why his testimony was not thg same as he had given before the grand jury but it was improper to permit him to volunteer this information in advance of opening the door. Although it does not appear this precise question has been presented to us in any previous case, we feel the proper rule would be to declare such unresponsive testimony to be error if presented without justification as was done in this case. This, too, will not likely reoccur in the new trial.
V.
THE TRIAL COURT ERRED IN OVERRULING THE DEFENSE MOTION FOR A MISTRIAL AFTER THE PROSECUTING ATTORNEY ELICITED A STATEMENT FROM A DEFENSE WITNESS WHICH, IN EFFECT, WAS AN OPINION BY THE WITNESS THAT THE APPELLANT WAS GUILTY AS CHARGED.
The witness, a former sheriff, in effect, stated after he had made his own investigation of the allegations in the indictment and information he had concluded they were true. The only logical conclusion to be reached from this testimony is that the witness believed appellant was guilty. The court admonished the jury again to not consider this evidence. A mistrial was requested and refused both before and after the admonition. We consider this opinion evidence in light of Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001, Rule 704 (Repl. 1979), which states:
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
The testimony of this witness on this point was not otherwise admissible. It was not admissible for any reason at all; therefore, it constituted error. This statement was not embraced within any response to a prior question. Whether appellant was guilty or innocent was a matter entirely within the province of the jury and it is improper for the witness, or even the court, to express an opinion as to the guilt or innocence of appellant.
VI.
THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE A SIGNED STATEMENT OF A PROSECUTION WITNESS, WHEN THE STATEMENT WAS MADE ON SATURDAY, AUGUST 19, 1978, JUST THREE DAYS BEFORE THE TRIAL COMMENCED.
The witness had made a written statement at the request of the prosecuting attorney two or three days before the trial. This statement was introduced into evidence and copies furnished to the jury over the objection of the appellant. The state offered it for the purpose of proving the guilt or innocence of appellant.
Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001, Rule 801 (c) (Repl. 1979), defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. This statement was expressly made for the purpose of proving the truth of the matter asserted and obviously was not made while testifying at the trial or hearing. We cannot fit the statement into any of the exceptions to the hearsay rule. The statement was apparently worded by the prosecuting attorney and signed by the witness as reflected by the response of the witness to a question about the statement when he replied:
“ No, I didn’t word it just that way, but that is the way it is.”
If such statement were allowed, the prosecuting attorney could round up all his witnesses on the eve of a trial and prepare a statement for each to sign and hand the statements to the jury thereby emphasizing the evidence and testimony in a light most favorable to the state. The defense would, no doubt, adopt the same procedure if such evidence were held admissible. The situation could develop whereby the jury would decide the case on a series of written statements presented to them at the time of the trial. We think the case of Brown v. State, 262 Ark. 298, 556 S.W. 2d 418 (1977), controls in this case and the statement was pure hearsay. It should not have been admitted into evidence.
VII.
THE TRIAL COURT ERRED IN ADMITTING A TAPE RECORDED CONVERSATION BETWEEN APPELLANT AND PROSECUTION WITNESS ROBERT A. CLARK.
The state had tapped the witness’s telephone with her consent. Thereafter she engaged the appellant in a conversation which was recorded. The tape of this conversation was presented to the trial jury over the objection of the appellant, who had not consented to the tap and in fact did not know the conversation was being recorded.
The Federal Omnibus Crime Control Act, 18 U.S.C. §2511 (2) (c), provides intercepted telephone conversations may be used provided one of the parties to the conversation consents thereto. Appellant argues this witness did not give true consent because the state promised she would be “protected.” Also, appellant claims this was a violation of the Fourth Amendment to the United States Constitution. We disagree with appellant on these contentions. It was not shown that the witness cooperated and consented to the tap because of duress or threats of any nature. She stated she voluntarily consented to the conversation being recorded. A party to a conversation who mistakenly believes the other party will keep the conversation in secret is not prejudiced by the fact that such confidence is betrayed. United States v. White, 401 U.S. 745 (1971); Kerr v. State, 256 Ark. 738, 512 S.W. 2d 13 (1974). In view of the facts of this case we think the intercepted conversation was properly received in evidence.
VIII.
THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT’S MOTION FOR A MISTRIAL AFTER THE PROSECUTION COMMENTED, IN CLOSING ARGUMENT, ON APPELLANT’S FAILURE TO TESTIFY IN HIS OWN BEHALF.
The statement by the prosecuting attorney was at least subject to misinterpretation by the jury even if it were not intended as a remark referring to appellant’s failure to testify. We need not cite authorities for the proposition that the prosecuting attorney cannot call the attention of the jury to the fact that an accused has failed to testify. Since there will be a new trial, this statement will not be repeated in its present context.
IX.
THE COURT ERRED IN FAILING TO GRANT APPELLANT’S MOTION FOR A MISTRIAL AFTER THE PROSECUTING ATTORNEY DISCUSSED PUNISHMENT IN HIS REBUTTAL CLOSING ARGUMENT IN DIRECT VIOLATION OF THE TRIAL COURT’S ORDER THAT HE NOT DO SO.
The prosecuting attorney argued about the penalty to be imposed although he had been instructed not to do so by the trial court. This instruction resulted because neither the state nor appellant’s counsel argued the penalty in their closing summation. The court again admonished the jury to not consider this statement and denied the motion for a new trial. This is another error not likely to occur at the future trial.
X.
INTENTIONAL VIOLATIONS OF APPELLANT’S DUE PROCESS RIGHTS CREATED MOST OF THE PREJUDICIAL ERRORS IN THIS CASE; THEREFORE RETRIAL WOULD CONSTITUTE A VIOLATION OF DOUBLE JEOPARDY.
We need not cite authority for the rule that a retrial is not barred by reversal of a conviction because of prejudicial error. Appellant recognizes the general rule but contends an exception exists in a case where the prosecution creates the errors through bad faith or harassment. In other words, the state should not be allowed to create a mistrial for the purpose of getting another whack at the accused. Neither should the state be permitted to harass and intimidate an individual by intentionally causing him to be tried more than once.
Although the errors were numerous and sometimes appeared not to be unintentional, we cannot say that the prosecution acted in bad fath or with intent to harass the appellant by intentionally causing a new trial. This was obviously a trial where both counsel proceeded with vigor. However, the admission into evidence of the written statement of the witness Buckshot Nicholson constituted prejudicial error. Since we are considering this case as if the appeal were filed here, the case is reversed and remanded to the circuit court for a new trial.
Reversed and remanded.
Harris, C.J., not participating.
Fogleman, J., would affirm opinion of the court of appeals. | [
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George Rose Smith, Justice.
In June, 1978, the Garland county grand jury returned indictments charging the petitioner, Virgil Mann, and three co-defendants with various counts of public servant bribery, theft, conspiracy to commit theft, and obtaining money under false pretenses. Mann’s co-defendants were M. B. “Rip” Evans, Jeanette Evans, and Rip Evans Construction Company, Inc. All the defendants pleaded not guilty. At first Mann and his three co-defendants were all represented by George M. Callhan, a lawyer who had previously represented Mann and Rip Evans in other matters. In November, however, the three co-defendants, at the suggestion of the circuit judge, obtained independent counsel. In January, 1979, pursuant to a plea bargain, Rip Evans and his corporation changed their pleas to guilty, and the charges against Mrs. Evans were dismissed. As part of the plea bargain Rip Evans agreed to testify against Mann.
In February the circuit court conducted a hearing upon a motion by Evans asking the court to admonish Mr. Callahan not to divulge, through cross-examination or otherwise, any information which Mr. Callhan had received from the Evanses during their attorney-client relationship, and upon a motion by the State to disqualify Mr. Callahan from continuing to act as Mann’s attorney in the cases. The circuit judge ruled that Mr. Callahan should be disqualified from further representation of Mann in the pending cases and that Mann should obtain other counsel for the trial, which was tentatively set for February 27. Mr. Callahan, as Mann’s attorney, then applied to this court for a writ of prohibition to prevent the circuit court from proceeding with the cases pursuant to its ruling that Mr. Callahan was disqualified to act as defense counsel. We issued a temporary writ of prohibition to stay the proceedings until the matter could be submitted to this court on briefs, which has been done.
The indictments have not been made exhibits to the petition for prohibition, which with its exhibits is the record in this court. Supreme Court Rule 16 (a). We can, however, infer the nature of at least part of the charges from the testimony given by Rip Evans at the hearing at which the court approved his plea bargain with the prosecuting attorney. Evans testified that Mann, a street commissioner (presumably of the city of Hot Springs), had stated that he was in need of money. As we understand Evans’s testimony, Mann prepared fraudulent purchase orders, running to thousands of dollars, by which the city was ostensibly to purchase oil from Evans or his company. The city issued its checks to Evans or the company for the various purchases. Evans, without delivering the oil to the city, turned the money over to Mann, after retaining enough to pay Evans’s federal income taxes on the transactions. Thus, according to Evans, Mann was the conspirator who actually profited from the transactions.
We hold that the circuit judge did not abuse his discretion in disqualifying Mr. Callahan from further participation in the cases. In reaching this conclusion we emphasize the apparent impropriety of Mr. Callahan’s original attempt to represent all four defendants. We note in passing that Mr. Callahan does not seem yet to have conceded even the possibility of impropriety on his part. He says, for example, in his type-written brief seeking a temporary writ of prohibition that no conflicts between the defendants arose during the time that he was representing them, that the conflicts arose only after three of them had obtained separate counsel. Again, Mr. Callahan says in his printed brief, with respect to the hearing at which the trial court imposed the disqualification: “There was no showing in the hearing that the interest of Co-Defendants, Mann and Evans, was not similar or that any defenses asserted by one would be inconsistent with that interposed by the other.”
On the record before us, which is all that the petitioner has submitted, we think the potential conflict between Evans and Mann was strikingly apparent from the outset. The two were jointly accused of public servant bribery. The human tendency of co-defendants to seek leniency for themselves by casting the primary blame on each other is well known. In fact, that tendency underlies our long-standing rule that the testimony of an accomplice must be corroborated. Here, as might have been foreseen, Evans, who apparently had received the city’s checks, attempted to shift the blame to Mann by testifying that it was Mann who proposed the scheme and actually profited by it. Furthermore, Evans, within a few weeks after engaging independent counsel, elected to plead guilty and agreed to testify against Mann. That turn of events, in a case involving alleged joint complicity, cannot be regarded as unforeseeable.
Mr. Callahan, primarily as defense counsel but also simply as a practicing attorney, was under a clear-cut obligation to anticipate the possibility of a conflict between the interests of his several clients. We discussed the point to some extent in Chambers v. State, 264 Ark. 279, 571 S.W. 2d 79 (1978):
We have no doubt at all about Larry’s having been entitled to independent counsel. The duty of a lawyer in Mr. Etoch’s position is clearly stated in the ABA Standards Relating To the Defense Function, § 3.5 (b) (1971):
“Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation.”
See also the Code of Professional Responsibility, Canon 5 (1975).
The ABA Standards Relating To the Defense Function again emphasize the point in the commentary to § 3.5 by pointing out that “the risk of an unforeseen and even unforeseeable conflict of interest developing is so great that a lawyer should decline multiple representation unless there is no other way in which adequate representation can be provided to the defendants.” See also the extended quotation from an unpublished article by Alan Y. Cole in the court’s opinion in United States v. Garafola, 428 F. Supp. 620 (D.C.N.J.1977).
We do not mean that Mr. Callahan’s ill-considered decision to attempt to represent both Mann and Evans is in itself a complete answer to Mann’s insistence that he is still entitled to be represented by Mr. Callahan as the counsel of his choice. Nevertheless, the rights of an accused to “the assistance of counsel” as guaranteed by the Sixth Amendment to the United States Constitution and to be heard “by himself and his counsel” as guaranteed by Article 2, § 10, of the Arkansas Constitution do not confer an absolute choice of counsel, regardless of the circumstances. As the court said in Gandy v. State of Alabama, 569 F. 2d 1318 (5th Cir., 1978):
[N]ot all the variations of the right to counsel are absolute values. Indeed, it is a settled principle that the right to counsel of one’s choice is not absolute as is the right to the assistance of counsel. [Citations.] The right to choose counsel may not be subverted to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.
Similarly, an indigent defendant does not have an absolute right to demand the services of any lawyer he chooses. Thomas v. State, 584 P. 2d 674 (Nev., 1978).
The question is whether Mr. Callahan’s continued representation of Mann can be permitted without any substantial possibility of prejudice either to Evans or to the State. We cannot say with confidence that such a possibility does not exist.
Counsel for Evans make the point that there were many confidential communications between their client and Mr. Callahan before that attorney-client relationship terminated. That confidential information, it is argued, might be used by Mr. Callahan to Evans’s disadvantage, such as with regard to extraneous matters going to his credibility, if Callahan were permitted to cross-examine Evans. We do not regard Mr. Callahan’s suggestion that Mann be allowed to employ still another lawyer to cross-examine Evans as being a practical or satisfactory solution to a problem that arose only as a result of Mr. Callahan’s initial attempt to represent multiple defendants with potentially conflicting interests. Furthermore, counsel for the State make the point that Evans could hardly be cross-examined without the possibility of frequent interruptions in the trial, with attendant in-chambers hearings, whenever questions about confidentiality arose. In fact, just such a difficulty arose at a hearing below with respect to Evans’s change of plea, when Mr. Callahan asked Evans, on cross-examination, if he had not agreed in the first place that his interests and those of Mann were similar. The question was objected to, as involving the disclosure of a confidential communication, and led to a protracted argument between opposing counsel. The difficulty is basic. There is simply no way of determining whether a communication was confidential without first violating its confidentiality. See Holloway v. Arkansas, 435 U.S. 475 (1978).
The point was discussed in United States v. Garafola, supra. There Garafola and Dolan, co-defendants in a prosecution for possession of stolen property, were at first represented by the same attorney. On the day of trial Garafola decided to change his plea to guilty, and eventually he retained separate counsel. The court later held that the defendants’ original attorney was disqualified from continuing to represent either Garafola or Dolan, pointing out some of the same difficulties that may arise in the case at bar:
Reverting to the specific issue raised herein by Garafola’s decision now to retain separate counsel, the position of conflict in which defense counsel knowingly placed himself from and after arraignment continues to persist. This is so for several reasons. Simply by way of example, should Garafola be called as a witness by the United States upon re-trial, how can he be cross-examined effectively by his former attorney without intruding into matters protected by the attorney-client privilege. Moreover, what is to be done if Dolan wishes to waive the attorney-client privilege but Garafola does not? What is present counsel then to do? A myriad of equally complex questions are presented, simply because counsel did not, when he first ascertained all of the facts in the case, exercise that prudence which was required. Accordingly, I adhere now to my ruling of March 10, 1977, and order that Dolan retain new counsel to represent him at re-trial.
See also United States v. Lawriw, 568 F. 2d 98 (8th Cir. 1977), where the court recognized the possibility that, as in Garafola, it may sometimes be necessary to disqualify counsel from representing either of two defendants.
In discussing only what is actually the primary issue in this application for a writ of prohibition, we do not overlook counsel’s reliance upon six separate points in his brief. All of them, however, derive essentially from the main issue. That Mann did not receive specific notice that the State’s motion to disqualify counsel would be presented at the hearing below did not result in a denial of due process, as the court had already indicated that Mr. Callahan’s disqualification would be at issue; so there was no want of notice or of an opportunity to be heard.
Writ denied.
Byrd and Purtle, JJ., dissent. | [
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John A. Fogleman, Justice.
Appellant Farm Service Cooperative, Inc. questions the propriety of a summary judgment dismissing its counterclaim against Goshen Farms, Inc. and cross-complaint against George Melbourn and Carl Rose. This pleading was filed in a suit brought by Goshen Farms, Inc. (hereafter referred to as Goshen) against Farm Service Cooperative, Inc. (hereafter called Farm Service).
The questions at issue will be better understood if we first develop some of the background about which there seems to be no dispute. Goshen leased a dwelling house and four poultry houses, and the equipment therein, to Farm Service by written lease dated March 19, 1969 for a term of three years beginning April 2, 1969. Melbourn and Rose were the only two stockholders of Goshen. Each of them owned one-half of the outstanding capital stock. Melbourn was employed as general manager of Farm Service until his employment was terminated on or about August 15, 1970.
After the termination of the lease Goshen filed an action in the Circuit Court of Washington County (No. 8360) on May 17, 1972, seeking a declaratory judgment declaring the rights of the parties to the lease and recovery of damages for injury to the leased property allegedly done by Farm Service. By agreement of the parties, that part of Goshen’s complaint seeking declaratory judgment was tried and a jury verdict adverse to Goshen was rendered on May 12,1973. It was agreed by the attorneys for the parties that the portion of Goshen’s complaint seeking recovery of damages would be deleted and that Farm Service would not plead prior adjudication if an action for damages to personal property should subsequently be filed.
On December 1, 1972, Melbourn had filed an action (No. 8749) against Farm Service claiming damages for the alleged breach of his contract of employment by Farm Service. This case was tried beginning February 3,1975. A jury verdict in favor of Farm Service was returned on February 5, 1975, and judgment was entered pursuant to that verdict.
On May 24,1974, Goshen Farms did file an action (CIV 74-351) in the Circuit Court of Washington County seeking to recover $6,000 damages for injury to personal property. This complaint was amended to increase the amount of damages sought to $7,500 on December 5, 1975. This case was set for trial on September 10, 1976, but it was dismissed without prejudice by Goshen Farms on September 2, 1976.
The present action was filed on January 17, 1977. In its complaint, Goshen again alleged that the use of the leased property and equipment by Farm Service caused extensive damage to the property and equipment, and that Farm Service had breached the lease contract by failure to comply with its agreement to return the leased premises, property and equipment to Goshen upon termination of the lease in the same condition they were at the time Farm Service took possession. Goshen sought damages of $7,500. Farm Service filed an answer, which was a general denial, reserving the right to amend and to file other pleadings if further investigation and discovery procedures warranted the filing of additional pleadings.
Farm Service did file its counterclaim and cross-complaint on April 6, 1977. It alleged that: Goshen was the alter ego of George Melbourn and Carl Rose; and that Melbourn and Rose, through their alter ego, Goshen, had instituted civil action against it for declaratory judgment and for damages on May 17, 1972; that Melbourn had brought his action against Farm Service on December 1, 1972; that on May 24, 1974, Melbourn and Rose, through their alter ego, Goshen, had instituted another action for damages against Farm Service, which it dismissed shortly before the designated trial date; that each action was terminated favorably to Farm Service and that each of them and the present action had been brought by Melbourn and Rose maliciously and without probable cause and for the purpose of harassing Farm Service; that Goshen had, through Melbourn, repeatedly made threats to institute additional civil actions against Farm Service; that Farm Service had been compelled to pay $20,455.12 in attorney’s fees in connection with these actions and would be required to pay additional attorney’s fees in defending this action; and that appellant was entitled to recover exemplary damages. Farm Service prayed for its attorney’s fees, $10,000 exemplary damages and dismissal of the complaint.
The demurrers of Goshen, Melbourn and Rose were overruled on May 12, 1977. Goshen’s reply and the answer of Melbourn and Rose were consolidated in a pleading filed May 25, 1977. They denied that Melbourn and Rose, acting through their alter ego, Goshen, had, on May 17, 1972, commenced a civil action against Farm.Service, but admit ted that Goshen had, on May 17, 1972, commenced a civil action, and that, by an agreement between the attorney for Goshen and the attorney for Farm Service, the issue of damages to property was to be severed and handled in separate litigation.
On April 12, 1978, Goshen, Melbourn and Rose filed their motion for summary judgment on the counterclaim and cross-complaint filed against them by Farm Service, asserting that there was no justiciable issue of fact and that Goshen was not the alter ego of Melbourn and Rose. The motion was based upon the pleadings and judgments in all the actions previously mentioned, including those in the present action, all of which were made exhibits to the motion, along with the following:
1. The affidavit of F. H. Martin, the attorney of record for Goshen in the action filed against Farm Service on May 17, 1972, stating the agreement relating to splitting of that cause of action, so the portion relating to the declaratory judgment on the lease agreement could be tried without prior adjudication being pleaded when the cause of action for damages to personal property was filed. The agreement was confirmed by letter to Martin from James F. Dickson, dated April 25, 1974.
2. The docket sheet in the case of Goshen against Farm Service (No. 74-351), showing an entry dated September 2,1976, over the signatures of Thomas Pearson and Joseph William Segers, Jr., dismissing the action without prejudice.
3. Responses of Goshen, through its president George Melbourn, to interrogatories propounded to it by Farm Service in No. 74-351.
4. The affidavit of Carl Rose that he was one of the incorporators of Goshen, which was organized and incorporated in December, 1975 and early 1976, that shortly thereafter all the stockholders, except for himself and Melbourn, “passed out of the picture,” and that, at the time of the filing of cause No. 8749 by Melbourn and at all times subsequent thereto, he and Melbourn were the only stockholders of Goshen; and that Goshen Farms, Inc. is a separate entity from him and Melbourn, and that it is still in existence as a corporation.
In its response to the motion for summary judgment, Farm Service asserted that Goshen, Melbourn and Rose were not entitled to judgment as a matter of law upon the ground that the verified pleadings in the case, discovery depositions and interrogatories showed that there remained disputed questions of fact. The affidavit of Walter F. Losey, general manager of Farm Service, was filed with this response. In the affidavit, Losey stated that: after Melbourn was fired as general manager of Farm Service on August 15, 1970, he made numerous statements to Losey and others that he would get even with Farm Service, or words to that effect; that on November 20, 1977, Rose indicated to Farm Service that he was turning over the decision-making process of the corporation to Melbourn; after relating the allegations of the counterclaim and cross-complaint as to the various lawsuits, that no probable cause existed for the filing of the actions; and that Melbourn had also repeatedly made threats to institute additional civil actions against Farm Service.
The circuit court’s order granting summary judgment dismissing the counterclaim and cross-complaint was based upon the following reasons:
The original Case No. 74-351 claimed damages for breach of contract in failing to vacate the premises and excessive damages to poultry equipment. The attorneys for the parties stipulated that the cause of action for damages to poultry equipment should be passed for trial at a future date. The cause of action seeking damages for breach of contract for failing to renew lease resulted in a verdict for defendant.
The contents of the Complaint show no indiscretion or malice expressed or implied. The doing of something a person has a legal and procedural right to do is no basis for malice.
The present suit by Goshen against Farm Service has no connection with the employment controversy between Farm Service Cooperative and George Melbourn. The fact that George Melbourn was a substantial stockholder in Goshen Farms, Inc., in itself is immaterial in piercing the corporate entity unless one of the following is alleged and proved:
(1) To prevent a contravention of governmental policy.
(2) In case of a national emergency.
(3) Fraud.
(4) Inequity of limited liability.
(5) Injustice to controlling shareholder.
(6) Oppression of a shareholder’s interest.
(7) Jurisdictional and procedural factors.
None of these grounds have been alleged or proved nor is there any proof of them to justify piercing the corporate entity and holding George Melbourn and Carl Rose personally liable as to the counterclaim for malicious prosecution. The counterclaimant must allege and prove the original proceedings terminated in his favor, Coffelt v. Gordon, 239 Ark. 619. In addition, Farm Service Cooperative must allege and prove that the proceeding terminated in such a manner that it cannot be revived.
This part of the suit is still pending and unresolved.
The Farm Service Cooperative might well have some cause against Goshen Farms as to the first suit as it was terminated in its favor but such suit would have to be a separate cause of action in another suit. Lack of probable cause in the first suit must be proved independently of the element of malice, Gazzola v. New, 191 Ark. 724.
The essential elements for the tort of malicious prosecution are:
(1) A proceeding instituted or continued by the de fendant against the plaintiff.
(2) Termination of the proceeding in favor of the plaintiff.
(3) Absence of probable cause for the proceedings.
(4) Malice on the part of the defendant.
(5) Damages.
The Farm Service Cooperative in its brief refers to allegations of ‘ ‘ Malicious Abuse of Process ’ ’ but a careful reading of the counterclaim fails to reflect any such allegation.
Farm Service Cooperative refers to the nonsuit of 74-351 of the claim for damage to poultry equipment, which is the same allegation that is contained in this suit, as malicious. The taking of a nonsuit and refiling within one year is a statutory right given to any litigant and cannot be considered as evidence of malice or want of probable cause. This nonsuit also is not a final determination of the lawsuit upon which a suit for malicious prosecution could be brought.
We do not agree with appellees that the order granting summary judgment is not appealable, as a final judgment. It dismisses the counterclaim, and thereby discharges both Melbourn and Rose from this action. The dismissal of this counterclaim was not by granting a motion for dismissal but by summary judgment. A summary judgment could be a judgment on the merits. 6 Moore’s Federal Practice (2d Ed.) 56-55, § 56.03. As such, it could be conclusive as to the rights of appellant as to some portions of his counterclaim in a future action. We view the requirements of finality in such a case from a practical, rather than technical, approach. Purser v. Corpus Christi State National Bank, 256 Ark. 452, 508 S.W. 2d 549. When we do, we find this order appealable.
We stated the rule of finality in Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605. There we said:
** * For a judgment to be final and appealable, it must in form or effect: terminate the action; operate to divest some right so as to put it beyond the power of the court to place the parties in their former condition after the expiration of the term; dismiss the parties from the court; discharge them from action; or conclude their rights to the matter in controversy.
Appellant contends that the counterclaim and motions for summary judgment present a question of fact concerning the issue of malicious prosecution. The parties agree that the trial judge correctly stated the elements of the tort of malicious prosecution.
Appellant alleged that there was no probable cause for any of the actions by Melbourn or Goshen, and that they were brought maliciously. Although both are essential elements of the tort of malicious prosecution, malice and probable cause are not convertible terms and neither follows as a legal presumption from the other. Foster v. Pitts, 63 Ark. 387, 38 S.W. 1114. The two elements must concur. Gazzola v. New, 191 Ark. 724, 87 S.W. 2d 68. Although a jury may infer malice from lack of probable cause, lack of probable cause may not be inferred from malice. Malvern Brick & Tile Co. v. Hill, 232 Ark. 1000, 342 S.W. 2d 305; Louisiana Oil Refining Corp. v. Yelton, 188 Ark. 280, 65 S.W. 2d 537; Foster v. Pitts, supra; Chicago, R.I. & P. Ry. Co. v. Gage, 136 Ark. 122, 206 S.W. 141. The burden was on appellees, as movants, to show that there were no justiciable issues of fact. Lee v. Westark Investment Co., 253 Ark. 267, 485 S.W. 2d 712. There is nothing in the affidavits or documents filed with the motion for summary judgment to show that there was any probable cause for the actions. Consequently, we must say that appellees have failed to show that there is not a justiciable issue as to lack of probable cause for them; and, since malice may be inferred from lack of probable cause, there was an issue of facts as to malice. This does not mean that the motion for summary judgment must be reversed in its entirety.
Insofar as the declaratory action is concerned, there has been a final determination of the action favorable to appellant, and, if the other elements of the tort of malicious prosecution exist, summary judgment would not be proper. We do not agree that a suit for malicious prosecution on account of this action could only have been brought as a separate cause of action. Under Ark. Stat. Ann. §§ 27-1121, 27-1123 (Repl. 1962) this cause of action would be barred if not asserted by way of counterclaim in the present action. May v. Exxon Corporation, 256 Ark. 865, 512 S.W. 2d 11. Of course, the suit by George Melbourn against Farm Service had been terminated favorably to appellant. But the action against George Melbourn for malicious prosecution on that account is not properly the basis of a cross-complaint in the present action unless Goshen is the alter ego of Melbourn. The mere fact that Melbourn owned 50% of the stock of the corporation does not make that corporation his alter ego. Actually, the fact that someone else owns one-half of the corporate stock is a strong indication that it is not.
The affidavit of Rose clearly refutes the allegations of Farm Service that the corporation was the alter ego of Melbourn. It is not alleged that Rose is the alter ego of Melbourn or that he had anything to do with the action brought by Melbourn. Nothing in the sole affidavit presented by Farm Service refutes the statements in the affidavit of Rose. The statement of Rose to Losey, that he was turning the management decisions over to Melbourn, made after the present action was begun, does not begin to support the allegations of Farm Service orrefute Rose’s statements. There simply is no basis shown for piercing the corporate veil, either by the allegations of the complaint or by the affidavits filed. ”... [W]hen the movant makes a prima facie showing of entitlement to the relief sought, the respondent must remove the shielding cloak of formal allegations and demonstrate a genuine issue as to a material fact.” Miskimins v. City National Bank, 248 Ark. 1194, 456 S.W. 2d 673.
There certainly is no basis for a counterclaim for malicious prosecution in the filing of the present action. One of the elements of that tort is termination of the proceeding in favor of the party seeking recovery for malicious prosecution. Coffelt v. Gordon, 239 Ark. 619, 390 S.W. 2d 633. This action had not been terminated when the counterclaim and cross-complaint were filed or until the motion for summary judgment was granted against Farm Service, so an essential element of the cause of action as to the present complaint is missing. As a matter of fact no action by Goshen for damages to personal property has been terminated favorably to Farm Service. The deletion of the damage claim from the first action by Goshen by agreement of the parties was certainly not a termination of the proceeding, when it was expressly agreed that prior adjudication would not be pleaded. The dismissal without prejudice of the next action by Goshen was permissible and was not a termination of proceeding in the sense required by the definition of malicious prosecution. In Coffelt we pointed out that, until a complaining party has shown that the action against him was unsuccessful, he has not shown that he has suffered any damage, so if he were permitted to sue before he had won the first suit, he might secure a recovery for the bringing of an action which the court entertaining it might find to be well brought.
The present action was permissible under Ark. Stat. Ann. § 37-222 (Repl. 1962); Oliver v. Miller, 239 Ark. 1043, 396 S.W. 2d 288; Campbell v. Coldstream Fisheries, 230 Ark. 284, 322 S.W. 2d 79. Until it is concluded, there is no basis for a cause of action against Goshen for malicious prosecution on the claim for damages for injury to personal property. The summary judgment as to that cause of action was correct because it was prematurely brought.
A similar situation was considered in Hales v. Raines, 162 Mo. App. 46, 141 S.W. 917 (1911), a malpractice action brought after the plaintiff had suffered an involuntary non-suit in a prior suit instituted against a physician on the same cause of action, except for some allegations of negligence omitted in the second suit. The defendant filed a counterclaim for malicious prosecution in the second suit based on the omitted allegations of negligence. The trial court peremptorily instructed a verdict for the plaintiff on the counterclaim. On appeal it was held that this action was proper because it could not be said that the cause of action was concluded or its prosecution ended by the non-suit. The court there said:
*** One matter which it is essential to show in a suit for malicious prosecution is that the prior prosecution or suit is ended, and plaintiff in the malicious prosecution action is finally discharged therefrom. Until such appears, no cause of action as for a malicious prosecution has accrued, for the very good reason that plaintiff in the suit alleged to have been maliciously prosecuted may finally prevail, and thus put an end to the whole matter. In this view the courts universally declare that, where a suit or prosecution has been commenced and afterwards dismissed with the intention of commencing it over again on the same cause of action, and it appears that it has been subsequently commenced thereon, such prior dismissal amounts to no more than a suspension of the prosecution, and is not an ending thereof in the legal sense essential to support a suit for malicious prosecm tion of the prior action. In other words, until the subsequent suit on the same cause of action is finally disposed of adversely to plaintiff therein, defendant may not maintain a suit on account of its malicious prosecution; for, in contemplation of law, the prior suit is regarded as still pending. ***
We agree with that court and its holding, where, as here, there was a voluntary non-suit, with the right to refile the action within one year.
Appellant relies upon Greer v. Cook, 88 Ark. 93, 113 S.W. 1009, to support its contention that a cause of action for abuse of process was stated. It reads the opinion in that case as holding that when any action is commenced for vexation and oppression there is an abuse of process. This was not the holding in Greer. There we held that the remedy for the institution of a suit by a creditor in a foreign jurisdiction, after a suit on the same cause of action had been reduced to judgment in a justice of the peace court in Arkansas and while an appeal from that judgment was pending, for the sole purpose of vexation and oppression of the judgment debtor, was an action at law for the malicious abuse of process, upon the authority of Baxley v. Laster, 82 Ark. 236, 101 S.W. 755, 10 LRA (n.s.) 983, 118 Am. St. Rep. 64. It is significant that in Greer a writ of garnishment had been issued and served upon the judgment debtor’s employer in Arkansas and that the new suit in the foreign jurisdiction included garnishment proceedings against the employer to seize the same wages covered by the Arkansas garnishment, allegedly for the purpose of defeating the judgment debtor’s exemptions in Arkansas.
The trial court correctly held that there were no allegations which would support a cause of action for abuse of process. The following comments on this cause of action in a note entitled “Malicious Prosecution— The Law in Arkansas,” by Larry C. Wallace, in Arkansas Law Review, Vol. 22, p. 340 at p. 355 et seq, are appropriate.
*** This narrow tort, seldom used in Arkansas, means exactly what it says: it is the misuse of some court process, civil or criminal, after it has been properly obtained, for some ulterior purpose not contemplated by law.
The essential elements of abuse of process are usually stated to be: first, an illegal, improper use of the process; sécond, an ulterior purpose which culminated in the abuse; and third, a resulting damage. In an action for malicious prosecution the court concentrates on the facts before the action was commenced, while in an action for abuse of process, the question is whether the use or application of legal process, after it was issued, was one for which it was designed.
Abuse of process is used as a label for a variety of situations where the circumstances will not warrant an action for malicious prosecution. Use of judicial process which has been held to justify an action for abuse of process includes: (1) wilful and malicious arrest of plaintiff when his innocence is known; (2) personal service procured by fraud; (3) excessive execution on a judgment; (4) vexations and oppressive suits in a foreign jurisdiction, and (5) attachment or garnishment for a greatly excessive amount.
See also, Baxley v. Laster, supra.
There is nothing here even suggestive of such a cause of action as the author of that note properly describes. Examples of abuse of process are found in some of our decisions. In Baxley, we held that a judgment debtor’s allegations that repeated issuance of writs of garnishment by a judgment creditor were to annoy, vex and harass the debtor, to tie up the wages which were his only means of support, and to cause him to lose time and incur expenses in attending court, issuing notices, filing schedules and claims of exempt property, and making defenses to the suits and to endanger his occupation would support an action for abuse of process.
The crux of the cause of action is the improper use of process after it was issued. Smith v. Nelson, 255 Ark. 641, 501 S.W. 2d 769. There is simply no cause of action for abúse of process stated here.
Appellant complains, however, that appellees argued, in support of their demurrer, that appellant’s counterclaim is couched in terms of “abuse of process and/or malicious prosecution.” Appellant then says that, if the court had sustained, rather than overruled, the demurrer, appellant could have amended its complaint, but that by reason of the summary judgment, it is deprived of that right. Although there is some question about appellant’s right to amend at this state of the proceeding, we feel that it should be given ten days after the filing of the mandate in the trial court to amend its complaint to state a cause of action for abuse of process, if it has one.
The summary judgment is reversed as to Goshen insofar as the declaratory judgment action is concerned, and as to Melbourn, insofar as his suit against Farm Service is concerned; otherwise, it is affirmed, subject to the right of appellant to amend its complaint to state a cause of action for abuse of process within ten days after the mandate from this court is filed in the trial court.
Harris, C.J., not participating.
Byrd, J., dissents as to the reversal. | [
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Marian F. Penix, Judge.
On April 19, 1979, Appellant Wade was tried by a jury and found guilty of possession of heroin. She was sentenced to five years. From this sentence Wade appeals.
On August 1, 1978, a warrant was obtained for the search of a residence omMabelvale Pike. During the search by Little Rock police officers Wade was seen to drop to the floor a syringe, a tinfoil packet, and a cotton ball. The syringe and cotton ball contained heroin.
Wade alleges there was insufficient evidence to support the verdict. Richard Fulks, of the Narcotics Division of the Little Rock Police Department, testified he had just told one of the occupants of the residence she was to be searched by a female detective. As he turned to talk to Wade he saw three articles fall to the floor — the syringe, tinfoil packet and cotton ball. He stated he did not see them in her hands but did see them fall to the floor beside her. He testified Wade was stánding alone not close to any furniture nor any other of the occupants. He also stated Wade was the only occupant who was standing. Another officer Lowery testified he saw the packet and syringe on the floor close to Wade. He further stated all other suspects were seven or eight feet from Wade and there was plenty of light in the house. An expert witness from the Arkansas State Crime Laboratory testified the dropped articles contained heroin.
Johnny Trimble testified for Wade and Wade took the stand herself. Trimble testified the packet was on the floor when he and Wade first arrived at the residence. Wade testified she had never seen nor had the syringe and the packet. She also testified it was getting dusky dark and the only light that was on was in the bathroom.
The Arkansas Supreme Court has held that, in cases involving possession of controlled substances, actual or. physical possession is not required.
. . . 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 . . . Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976).
Two officers testified the contraband was very near Wade. One testified he actually saw the contraband drop from Wade’s hands. Their testimony is sufficient to constitute substantial evidence to support the jury verdict. We need not consider the testimony of the defense witnesses which conflicts with the testimony of the officers. The officers’ testimony constitutes substantial evidence.
In pointing out the pertinent testimony on the question of sufficiency of the evidence, we will view the evidence in the light most favorable to the state, considering only that testimony that lends support to the jury verdict and disregarding any conflicting testimony which could have been rejected by the jury on the basis of credibility. Chaviers v. State, 267 Ark. 7, 588 S.W. 2d 434 [No. CR 79-148 (filed October 29, 1979)]
We hold the evidence sufficient to support the jury verdict.
Affirmed. | [
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James H. Pilkinton, Judge.
Appellants are charged with the crime of rape of Sheila McKinney, a 14 year old girl, on the grounds of the Jonesboro High School.
On September 29, 1978, Sheila went to a football game in Jonesboro. During the half-time intermission, appellant Zachery Ward approached Sheila. She sáys he told her that her brother had come to take her home. In any event, the two left the stadium, walked out the front gate, went toward the front of the gym and other buildings on the campus to a point, according to the girl, where her brother was supposed to be waiting. Fletcher (Pete) Washington and Herman Hampton followed them. Washington and Hampton caught up with the girl and Ward and joined them. Then, according to Sheila, the three young men grabbed her and forced her under a stair well of a building. The state’s claim is that Washington, Ward and Hampton forcibly raped Sheila McKinney under the stair well.
On the morning of October 9, 1978, and before any charges had been filed or arrests made, the three young men accompanied by their parents, went to the office of Robert Nelms, a juvenile officer, in the Craighead County Courthouse. They asked Nelms to assist them in having a polygraph examination administered. In the presence of Deputy Sheriff George Stewart, Mr. Nelms says he .read the Miranda warning to the young men and to their parents. Ac cording to Nelms, after receiving assurances that appellants and their parents fully understood their constitutional rights, Nelms allowed each appellant, along with a parent of each, to sign the consent forms for the polygraph examination.
Each young man then individually went upstairs, in the same building, to the office of Deputy Sheriff George Stewart. There they made statements incriminating themselves in the rape of Sheila McKinney.
On October 17, 1978, an Information was filed charging each appellant with Rape in violation of Ark. Stat. Ann. § 41-1803 (Repl. 1977). Prior to the trial, preliminary motions were heard and the court ruled that the results of the polygraph examination, or any reference thereto, would not be admissible. Motions for severance were denied.
On February 8, 1979, appellants were tried before a jury in Craighead County Circuit Court. The state produced evidence that Fletcher (Pete) Washington, Zachery Ward and Herman Hampton forcibly raped Sheila McKinney. The defendants introduced evidence that they tried to have sexual intercourse with the girl, but not by force.
After instructions, argument and jury deliberations, the jury returned a verdict finding defendants guilty as charged and fixing a punishment of 15 years for each. Judgment was entered on the verdict and the trial court sentenced each appellant to 15 years in the Department of Corrections.
On appeal from their convictions, appellants have raised four issues seeking reversal. Each defendant had a separate attorney. Some of the points are raised by all appellants, and we have carefully considered each argument. However, in order to prevent repetition, we will discuss each point only once in this opinion.
I.
Appellants Washington, Ward and Hampton each claim on appeal that the trial court committed error by failing to suppress incriminating statements made by them to Deputy Sheriff George Stewart in preparation for and during a polygraph examination. We find no merit in this argument. Appellants all voluntarily requested the examination. It was only the result of the test that was inadmissible. Statements made prior to, and in preparation for, a polygraph test, which the accused has voluntarily agreed to take, would not be involuntary for that reason, if otherwise voluntary. The fact that the statements were so made would only be one factor to be considered on the question of voluntariness. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978).
In each case we make an independent determination based upon the totality of the circumstances, and the trial court’s finding of voluntariness will not be set aside unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1975). Appellants say that the statements they gave were confessions and, under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the state bears the burden of showing that the confessions were made after a voluntary, knowing and intelligent waiver of the right to remain silent, before they can be admitted into evidence. Even so, after an examination of all the circumstances surrounding the appellants’ statements in this case, we cannot say that the trial court’s finding of voluntariness is clearly against the preponderance of the evidence.
The interrogation in this case was not custodial. Here the appellants voluntarily appeared to make the statements. Prior to that time, no charge had been filed against them, and they were free to come and go as they pleased. Their parents were present with them at the courthouse. Statements which do not result from in-custody interrogation are not barred. Johnson v. State, 252 Ark. 1113, 482 S.W. 2d 600 (1972), In any event, appellants and their parents were adequately placed on notice when the Miranda rights were explained to them. The evidence reflects no coercive interrogation of the appellants. The record shows that Washington and Hampton were sixteen, and Ward was fifteen. Although the youth of the maker is an important factor to be considered, our courts have never held that youth alone is a sufficient basis for exclusion of an incriminating statement, even when given without the advice of parent or counsel. Little v. State, 261 Ark. 859, 554 S.W. 2d 312 (1977). In the case before us all appellants and their parents were given an explanation of constitutional rights; and appellants had ample opportunity to confer with parents concerning their constitutional rights and concerning the decision to waive those rights. Only then did the appellants and their parents sign the rights waiver forms, and the consent to polygraph forms.,
The Arkansas Supreme Court has held that neither limited education, nor diminished mental capacity will negate a voluntary confession. Callaway v. State, 258 Ark. 352, 524 S.W. 2d 617 (1975), Sheppard v. State, 239 Ark. 785, 394 S. W. 2d 624 (1965), cert. denied 387 U.S. 923. In the case before us, the evidence reflects that appellants were tenth grade students of average intelligence who were capable of knowing, understanding and appreciating their rights. At the close of the Denno hearing, the trial court made the following specific findings:
I very carefully observed each of these defendants throughout the course of this two-day hearing, both on the stand and off the stand. They appear, each of them, to be normally intelligent; reasonably informed for minors of théir age.
II.
Appellant Washington, in his point II, alleges reversible error in the trial courfs questioning of witness Stewart. Appellants Ward and Hampton, in their point II, claim error in the court’s questioning of witnesses McKinney, Turnage and Stewart. However, appellants, in their brief, merely show that the trial court questioned some of these witnesses. There is no showing of how or in what manner that questioning acted as a comment on the evidence.
It is well established that a trial court may, in the interest of justice, direct questions to a witness calculated to elicit the truth about subject matter being investigated, provided they are carefully framed in a manner not indicating any opinion on the merits of the controversy. The trial court has some discretion in examining witnesses to clarify their testimony, and when no prejudice appears there is no abuse of that discretion. Miller v. State, 250 Ark. 199, 464 S.W. 2d 594; Clubb v. State, 230 Ark. 688, 326 S.W. 2d 816; New v. State, 99 Ark. 142, 137 S.W. 2d 564.
The record before us does not indicate that the trial court abused its discretion in questioning the witnesses. It appears to have been done in order to clarify, their testimony. The questioning by the trial court here did not constitute a comment on the evidence, and did not reflect on the credibility of the witnesses concerned. We fail to see how appellants could have been prejudiced in any way by the action of the court in this regard. Therefore, we find no merit in this argument.
III.
Appellants Washington and Hampton, in their point III, contend the trial court committed reversible error in denying their motions for mistrial. Appellant Ward did not move for mistrial and his attorney does not raise this issue on appeal. The court had carefully ordered the. state’s attorneys, and all the three defense attorneys, to admonish all witnesses and clients not to make any reference to the fact that a polygraph test was given to Sheila McKinney, Fletcher Washington, Zachery Ward or Herman Hampton, or to mention in any way the results of any polygraph test: The defendant Zachary Ward, having been called to testify in his own behalf, was asked on cross-examination, “You did talk to Mr. George Stewart, make a statement to Mr. George Stewart?” The witness responded that he didn’t know, “Who was George Stewart?” The prosecutor replied in essence that Stewart was the witness who testified this morning in this matter, to which Ward then responded, “Yes, that is the man that gave the polygraph test.” Washington and Hampton then moved for a mistrial. They claimed below, and renew their contention on appeal, that they had .nothing to do with appellant Ward’s voluntary statement concerning the polygraph examination and that they, therefore, were entitled to a mistrial because of co-defendant’s remark. The results of the polygraph examination were not mentioned. The one remark by Ward was the only time anything was said about the polygraph examina tion before the jury. Following that incident, and in the absence of the jury, Ward’s attorney requested and obtained permission to again admonish his client to make no further reference, and did so. After the court denied the motion for mistrial, the attorney for Ward made a Motion in Limine which was granted. All counsel, both for the state and defense were instructed by the court not to make any reference by way of argument, statements, questions, side remarks, or in any other way make reference to the statement made by witness Zachary Ward referring to a polygraph.
Zachary Ward did not indicate that appellants Washington and Hampton had in fact taken a polygraph test or the results of any such examination. Washington and Hampton were not prejudiced by Ward’s remark. The trial court offered to admonish the jury which offer was refused. An admonition would certainly have removed any prejudice which may have existed. Limber v. State, 264 Ark. 479, 572 S.W. 2d 402 (1978); Scott v. State, 263 Ark. 669, 566 S.W. 2d 737 (1978). Declaring a mistrial is an extreme and drastic remedy which should be resorted to only where there has been an error so prejudicial that justice could not be served by continuing the trial. Chaviers v. State, 267 Ark. 6, at 11, 588 S.W. 2d 434 (1979). The circumstances in the case before us do not-afford any basis for our saying that the trial judge abused his discretion in denying this motion for mistrial.
IV.
Appellant Washington contends he was entitled to a separate trial, and that the trial court erred in failing to sever his trial from that of his co-defendants.
Although conceding that the trial court complied with Rule 22.3(a)(ii) of the Arkansas Rules of Criminal Procedure, Washington argues that the nature of the evidence presented at the trial was such as to preclude any inference other than that one of the unidentified persons in the confession of Ward and Hampton was in fact Washington.
A matter of severance is one within the sound discretion of the trial judge to grant or deny. We will not reverse such a decision unless that discretion is abused. Hallman & Martin v. State, 264 Ark. 900, 575 S.W. 2d 688 (1979). Legg v. State, 262 Ark. 583, 559 S.W. 2d 22 (1977). We find no such abuse. The trial court denied appellant Washington’s motion for severance, ruling that each confession would be allowed into evidence only against the defendant giving the statement and that any reference to the other defendants by name would be excluded. The trial court also warned that failure to exclude those references would result in “an almost automatic mistrial.” The instructions of the court were followed.
The defense of these appellants was not antagonistic. All of the defendants testified and cross-examination was permitted the appellant Washington to refute any adverse testimony to his cause. Bell and Walker v. State, 258 Ark. 976, 530 S.W. 2d 662 (1975).
It should be noted also that Washington did not renew his pretrial motion for severance at the trial.
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PER CURIAM
This is an appeal from a decision by the Board of Review of the Department of Employment Security. Claimant is the president of the corporate employer, Walnut Fork Design, Builders and Woodworking Company, Inc., but also serves in the company as an hourly wage earner. As president, claimant is one of four stockholders in the company, each holding a 25% interest.
On April 10, 1979, the corporation ran out of work, and the four owners, including the claimant, decided to lay claimant off until June 5, 1979, when two other jobs were to begin.
Claimant contends that his being laid off from his work as an hourly wage earner in the company entitles him to unemployment compensation benefits within the meaning of Section 4 (c) of the Arkansas Employment Security Act. The Agency had determined that claimant was ineligible for benefits under the provisions of Section 5(a) of the Arkansas Employment Security Law, but the Appeals Referee modified the Agency determination by finding that claimant was not unemployed within the meaning of Section 4(c). The Board of Review upheld the decision of the Appeals Referee, stating that the claimant’s interest and commitment to the Corporation “precludes his entering the local labor market in search of other employment ...” Claimant now brings this appeal alleging that there is no substantial evidence to support the Board of Review’s decision.
On the contrary, we find substantial evidence to support the decision of the Board of Review and, accordingly, must affirm its holding on appeal. Terry Dairy Products Company, Inc. v. Cash, Commissioner of Labor, 224 Ark. 576, 275 S.W. 2d 12 (1955). Under Section 4(c), in order to qualify for benefits, the claimant must be available for work and willing to accept it. He must be doing those things which a ‘‘reasonable prudent individual” would be expected to do to secure work. Claimant, at one point in the proceedings, stated:
We have two jobs lined up, but can’t start either of them now. I will not be seeking work on my own right now because of the jobs we have lined up. (T. p. 12)
It is clear from claimant’s statement that he was not available for other employment and not doing those things one would normally do in order to find employment; which are required under Section 4(c) in order tó be eligible for benefits. From the facts before us, we must affirm the decision of the Board of Review. | [
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Marian F. Penix, Judge.
On May 12, 1973, claimant was injured on the job when a cable broke and caused him to fall 20 feet. The administrative law judge awarded claimant permanent and total disability. The Workers’ Compensation Commission reversed the award'and reduced it to a rating of 60% permanent partial to the body as a whole. Claimant appeals the Commission determination.
The claimant contends the Commission had no substantial evidence to justify its modification of the administrative law judge’s award.
After the first hearing the deposition of Dr. Charles McKenzie and reports, from Dr. Thomas Fletcher and the Veterans Administration were made a part of the record before the full commission. These medical reports as to the claimant’s condition are in conflict. Dr. Fletcher reported the claimant sustained a lower spinal injury which was a cauda equina compression injury of the lower cord and nerve root in association with a lumbar disc injury. Dr. Fletcher indicated the claimant has a residual pain problem and is disabled as far as performing work activity. As to claimant’s anatomical disability Dr. Fletcher gave him permanent partial disability of 45% to the body as a whole. The VA report relates claimant has full function of his lower extremeties and is able to return to work. The respondents referred claimant to Dr. Charles McKenzie, an orthopedist. Dr. McKenzie reported he could find no objective evidence to support Dr. Fletcher’s diagnosis of a cauda equina compression injury. The Commission concluded both Dr. Fletcher and Dr. McKenzie are qualified and one’s opinion was no more convincing than the other. The Commission also concluded the doubt should be resolved in claimant’s favor and in favor of the diagnosis of the treating physician, Dr. Fletcher. It is the opinion of the Commission when the economic factors are considered along with the physical impairment the claimant has sustained a 60% permanent partial disability to the body as a whole resulting from the injury.
After reviewing all the evidence the Commission determined the claimant is able to regularly and systematically engage in a variety of physical activities including fishing, hunting and housework. It also determined the claimant’s income is now in excess of what he was making when employed by the respondents and that his income is now tax free. It concluded claimant lacked financial motivation to return to the labor market. The claimant introduced a written report from a rehabilitation counselor which stated that based upon a telephone conversation with the claimant, the claimant would not be a candidate for vocational training. From this evidence the Commission concluded the claimant has voluntarily chosen not to return to the job market.
All this court is required to do is to determine if there was substantial evidence to support the Commission’s finding. From the record we find there was substantial evidence the claimant is not 100% disabled from earning any wages in the same or any other employment within the meaning of the Workers’ Compensation Act, Ark. Stat. Ann. § 81-1302 (e).
It has repeatedly been held the decision of the Workers’ Compensation Commission on fact questions carries the same force and effect as a jury verdict. Superior Improvement Co. v. Hignight, 254 Ark. 328, 493 S.W. 2d 424. Even though the evidence would support another conclusion, or if the preponderance of the evidence would indicate a different result, we still affirm the Commission if reasonable minds could reach the conclusion reached by the Commission. Oak Lawn Farms v. Payne, 251 Ark. 674, 474 S.W. 2d 408 (1971).
Affirmed. | [
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Marian F. Penix, Judge.
This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals pursuant to Rule 29(3).
Appellant, Robert L. Blount, d/b/a Aire-way Real Estate Agency, sold certain real property, including a house and its contents, to appellee Janice McCurdy. Blount had previously owned the property and had sold same to Terry and Holly Roberson on a contract of sale. When Blount acted as agent for the Robersons in selling to McCurdy he did not reveal he still had an interest in the property in that Robersons still owed him $1,000 on the sales price. Robersons were not present September 23, 1977, the closing date. The contract had been signed by the Robersons who had moved to Texas. On September 23 McCurdy made a down payment of $1,850 and signed the contract. The contract provided the buyer was to assume sellers’ insurance payments. At the closing, Pat Wolters, Blount’s agent, handed McCurdy an envelope containing an insurance policy, and stated she thought it was paid up. The term on the policy was from October 21, 1977 to October 21, 1978. The face amount was $8,000 on the house and $3,000 on its contents. In December 1977 Blount received notice in the mail the policy was being cancelled for non-payment of premiums. Blount testified he made an attempt to notify McCurdy by telephoning McCurdy’s ex-husband, Doug Merritt. Merritt denied ever having received notice from Blount the policy was being cancelled. Blount testified he sold the property to the Robersons as an individual and not for his real estate firm. He also stated he was given notice of the lapse of the insurance policy because he was the mortgagee, and such notice indicated it had also been mailed to Robersons.
In February, 1978, McCurdy’s house burned. She discovered there was no insurance coverage. Because of this fire loss she defaulted on her payments to the Robersons.
McCurdy sued Blount and the Robersons alleging she was damaged in the amount of $8,000 loss of improvements and $3,000 loss of contents, because of her detrimental reliance in respect to insurance coverage and the failure of each of the defendants to notify her of cancellation of the insurance. McCurdy asks that the Robersons be enjoined and restrained from declaring a default in McCurdy’s contract of sale and from dispossessing her from the property, in order to avoid irreparable harm and damage to McCurdy. The Robersons filed a counterclaim against McCurdy for non-payment of the installment contract. Also they filed a cross-complaint against Blount alleging damages suffered because of their reliance upon.Blount’s representations the insurance policy was paid or would be paid by McCurdy.
After hearing all the testimony and weighing all the evidence the trial judge entered a decree awarding judgment for damages to McCurdy and to the Robersons against Blount for the sum of $8,000 reduced by $1,000 still owing Blount from the Robersons under their original contract and an additional sum of $2,000 against Blount in favor of Mc-Curdy for the unscheduled personal property lost in the fire.
I.
Blount contends the court erred in permitting parol evidence on behalf of McCurdy to modify the essential terms of a written contract. The terms being “. . . and buyer agrees to assume seller’s insurance payments from date as above written and be responsible for the property as of same date. ’’The dates on the policy were ‘ ‘from October 21, 1977 to October 21, 1978.”
It is well recognized parol evidence cannot be introduced to change or alter a contract ín writing. However, our Supreme Court has stated many times oral testimony is competent when ambiguity and uncertainty exist in the contract for the purpose of resolving confusion. Kyser v. T. M. Bragg & Sons, 228 Ark. 578, 309 S.W. 2d 198 (1958). The testimony .may relate to the circumstances attendant to the' execution of the written contract, the relationship of the parties, and evidence of conversations. Jefferson Square Inc., v. Hart Shoes Inc., 239 Ark. 129, 388 S.W. 2d 902 (1965); Peevy v. Bell, 255 Ark. 663, 501 S.W. 2d 767 (1973); Kerby v. Field, 183 Ark. 714, 38 S.W. 2d 308 (1931).
The contract is silent on the matter of at what period of time the buyer’s obligation to make insurance payment began — was it October 21, 1977 or October 21, 1978? McCurdy’s testimony reveals she understood perfectly she was to assume the insurance payments but she also understood the payments would not begin until the policy dated October 21, 1977 through October 21,1978 expired. Exactly when she was to begin the insurance payments is not covered in the contract. The parol evidence rule was not violated because any testimony related to when she was to begin payments is obviously concerned with a collateral, independent fact, or with an ambiguity about which the contract is uncertain. The testimony concerning the obligation to assume sellers’ insurance premiums clause of the contract was not introduced to vary or contradict the written document but was concerned with matters not embraced within the language of the convenant and to explain uncertainties in the document. Lane v. Pfeifer, 264 Ark. 162, 568 S.W. 2d 212 (1978).
Initially Blount’s agent misled McCurdy into believing the insurance was paid up until October 1978. McCurdy relied upon Blount’s agent’s statement the insurance was paid up. This reliance was certainly to her detriment. The rule of detrimental reliance applies not only to brokers but to laymen, and all members of society who deal in commercial transactions with their fellowmen. When it was discovered it was not paid past October 1977 no attempt was made to be certain McCurdy knew such fact.
McCurdy was entitled to rely upon the representation the insurance was in force until October 21, 1978 and the premiums had been paid for such period. McCurdy and the Robersons are entitled to the amount of their loss that would have been paid under the policy of insurance, this sum being $8,000 upon the residence, reduced however, by the sum of $1,000 which is the amount due Blount upon his contract of sale to the Robersons, or a net amount of $7,000 to be allocated $5,750 to the Robersons and $1,250 to McCurdy. He also correctly found the value of McCurdy’s unscheduled personal property was $2,000 which amount Mc-Curdy was entitled to recover from Blount. The Chancellor further ordered Blount to execute and deliver a warranty deed to the Robersons and the Robersons to execute and deliver a warranty deed to McCurdy.
II
Blount contends the court erred in its determination of damages. The court found as a matter of law McCurdy and the Robersons were entitled to the amount which would have been paid under the policy. The house was insured for $8,000. It was totally destroyed. $8,000 is the correct amount under the Arkansas Valued Policy Law, Ark. Stat. Ann. § 66-3901 (Repl. 1966); Hensely v. Farm Bureau Mutual Ins. Co., 243 Ark. 408, 420 S.W. 2d 76 (1967). This statute applies only to an insurance company. However, the policy amount, which would have been owed to the loss payee, is evidence of the property’s value. McCurdy lost the amount of the policy due to her reliance upon the agent’s misrepresentations.
It was disputed the amount owed Blount on his contract with the Robersons was $1,000. McCurdy owed Robersons $5,570. The chancellor correctly determined $5,570 was to be paid to the Robersons and $1,250 to McCurdy.
As to the issue of damages for destruction of the contents of the house it is necessary to prove the value of the personal property destroyed. Ms. Roberson testified without objection the value was at least $3,000. Ms. McCurdy testified as to the contents' and that she had put in a new refrigerator and a complete new livingroom suite. Mr. Blount testified the contents were worth $1,000. Neither of the witnesses’ testimony as to value was objected to. Ms. Roberson was qualified to express an opinion. The court certainly had a right to base its judgment on the testimony before it. The court found the value of the contents to be $2,000.
If this case is based upon damages by reason of detrimental evidence, upon whom did McCurdy and the Robersons rely? Blount and his agents. Their detriment was the amount lost as a result of the policy not being in force. Blount did not object to the value testimony in the lower court. He may not do so, for the first time, on appeal.
Affirmed.
Wright, C.J., and Newbern, J., dissent. | [
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John A. Fogleman, Justice.
This is the second appeal in this case. The case originated as an action by F & M Investments, Inc. against James Green and Cole Morgan to recover rentals alleged to have been due it under a lease-* purchase agreement. Appellees here filed a cross-complaint in which they alleged that they had exercised their option to purchase the real estate which was the subject of the lease-purchase agreement, but that the original lessors, Clyde A. Ferguson, Sharon C. Ferguson, Charles D. Matthews and Susan S. Matthews, who are appellants here, had failed and refused to convey the property to appellees here. They sought specific performance. The Greens and the Morgans raised the same issues in an action by Twin City Bank for foreclosure of a mortgage, but other issues in the foreclosure suit are not material here. That action was consolidated with the suit by F & M Investments, Inc. In the consolidated proceeding the chancery court dismissed the counterclaims of the Greens and the Morgans on the ground that they had failed to assume the mortgage in favor of Twin City Bank. We disagreed with the chancery court and held that the clause in the contract requiring the Greens and Morgans to assume that mortgage did not require that they also obtain a release of appellants here from that obligation, before the option to purchase the property could be exercised. Green v. Ferguson, 263 Ark. 601, 567 S.W.2d 89. Even so, the dispostion of the case on appeal on trial de novo on the record did not permit this court to direct a decree for specific performance by the appellees there (appellants here). In that trial, Clyde A. (Tony) Ferguson had testified that he and Matthews had conveyed the property to Freddie Hudson, a brother-in-law of Ferguson. He testified that no cash had been paid by Hudson to him and Matthews, but that Hudson had a letter of commitment from Arkansas Savings & Loan Association to finance his purchase for $165,000, and that there was no necessity for any money to change hands because he (Ferguson) had a letter of credit. Ferguson said that the deed to Hudson had been executed by Matthews and Ferguson, and had been recorded and delivered to Arkansas Savings & Loan Association, that the loan had been approved and signed, that the property was Hudson’s and that everybody was happy. He said that the transaction had taken place in early 1977 when Hudson had obtained a tenant for the building on the property. He also testified that Hudson had spent about $30,000 improving the building on the property, but that the building had burned on the day after Hudson or his tenant had first occupied it.
In disposing of the first appeal, in which appellees here were appellants and appellants here were appellees, we said:
Appellants contend they are entitled to damages for breach of contract in lieu of specific performance. The chancellor made no finding on the issue of damages since he found there was no breach of the contract. It is undisputed that appellees conveyed the land to another following the alleged breach of contract. It is well established that the measure of damages for a breach of contract to convey is based on the value of the land at the time of the breach. Kempner v. Cohn, 47 Ark. 519, 1 S.W. 869 (1886). Here appellants exercised their right to purchase as of November 1, 1974. Appellees had four months from that date to convey title and failed and refused to do so. Appellants adduced evidence from an appraisor that the fair market value of the property was $193,151 “as of 1975,” which figure, say appellants, would be reduced by the “mortgage indebtedness of $80,349 leaving an equity of [$102,803] of Appellants in the property.” This asserted equity is the amount of damages sought by them. The appraiser did not know the property was encumbered by a twenty year lease-purchase option which he said could result in the property being “worth more or it may be worth less.” Therefore, appellees argue that appellants did not sufficiently demonstrate the value of the property with respect to the date of the appraisal nor what effect the mortgage or the lease-purchase agreement had upon the value of the property. Ordinarily, we might agree with appellees. However, there is other evidence which should be considered with respect to the value of the property or damages in lieu of specific performance. It is undisputed that in March, 1975, some four months after appellants had exercised their option to purchase, appellees refused to sign appellants’ proffered deed to the property, with assumption of the mortgage, at which time it appears the mortgage balance due to TCB for the original construction loan of $85,000 was $80,349. It appears it became unnecessary to sell the property by a foreclosure sale. Appellees acquired possession and in January, 1977, conveyed the property to a relative of one of them for $165,000. Therefore, a difference of $85,651 ($165,000 — $80,349) existed based upon appellees’ own sale of the property. In the unique circumstances, we hold appellants are entitled at least to this sum for its damages in lieu of specific performance of the contract.
The decree of the chancery court was reversed and the cause remanded for proceedings not inconsistent with the opinion rendered.
At a hearing after remand, held on November 9, 1978, appellees here offered no evidence. Appellants then objected that judgment was being rendered without any testimony having been taken and asked to make an offer of proof. They then proffered the following testimony: that of Sharon Ferguson that the income tax returns of the partnership of F & M Investments did not reflect any profit from the sale of the real estate to Freddie Hudson; that of Freddie Hudson that he purchased the property for what was owed Twin City Bank on the condition that he could “finance the property” and that he made certain improvements using his own funds, but that he did not pay $165,000 for the property and never paid Ferguson or Matthews one penny; that of Charles Matthews that the sale to Hudson was on a “look-at, look-see thing” for $1.00 and other good and valuable consideration, but not for any price of $165,000 and that he purchased the property at the judicial sale on foreclosure of the Twin City Bank’s mortgage for just less than $99,000 and later through a real estate agent, sold the property for $107,500, suffering a loss of $11,073.89, after paying the real estate agent’s commission, the closing costs, and delinquent taxes that had accrued during “Mr. Hudson’s ownership,” without considering the interest accruing on a note before he obtained the funds to pay the real estate agent’s commission; that of Dietz, the real estate agent, that the sale was at fair market value, and was closed on June 1, 1978, and that his commission of $7,000 was paid on September 19, 1978; that of Ferguson that Hudson paid no money for the purchase of the property but assumed the note at Twin City Bank as the full purchase price and that the revenue stamps on the deed to Hudson, indicating a consideration of $165,000, did not reflect the actual consideration; that of H. B. Stubblefield that revenue stamps on a deed do not necessarily reflect the actual consideration, but that, in many instances, stamps in excess of the amount required by law are affixed.
Appellants on this appeal contend that appellees were entitled to only $19,079.78. This is the difference between the net proceeds of the sale by Matthews after his purchase at the foreclosure sale, less $80,349 paid as the balance due on the debt to Twin City Bank. They give no consideration to the loss of the building on the property when the option was exercised.
For the most part appellants rely for reversal on cases relating to remand of chancery cases for further proof, and on cases from other jurisdictions stating that retrial should be limited to certain issues only when it is clear that doing so will insure a fair trial. On the record before us at the time of the remand, there was no indication that our limitation of the issues on remand did not insure a fair trial of any issue remaining.
Appellants’ present argument really is that we should have remanded the case without placing a floor on the amount of damages recoverable by appellees. But this is a matter which was determined on the first appeal, on a record which clearly established that appellees were entitled to at least that minimum. Appellants advanced the same argument in their petition for rehearing, which was denied.
Appellants’ arguments are based upon a misconception, not only of the basis of our decision on the first appeal, but also of the scope of appellate review on the first appeal and the effect of that decision, as well. When the basis of our decision is viewed correctly in the light of the proper scope of appellate review on the first appeal and the effect of that decision, the decree entered by the chancellor was correct beyond doubt.
Appellants seem to think that we based our finding that they conveyed the property to Hudson for $165,000 upon a mirage produced by the amount of documentary stamps placed on the deed by which the conveyance was made. This is not so. The deed was not abstracted and, so far as the record reflects, never was introduced in evidence. Ferguson testified positively and unequivocally that the consideration for the deed was $165,000. He was asked, “What was the purchase price?” He answered, “$165,000.”
We find no suggestion in Ferguson’s testimony that this was a fictitious sale, or a conditional one, or that there was any chance that the consideration would not be paid. His testimony was quite to the contrary, and appellants had ample opportunity to develop the matter further. Instead of doing so, they elected to submit the matter solely on their contention that Green and Morgan were not entitled to exercise their option, without developing these facts and without offering evidence as to the damages suffered by the Greens and the Morgans.
When the case reached this court on appeal, it was reviewed as all equity cases are and should be reviewed. Equity cases are tried de novo on appeal upon the record made in the chancery court, and the rule that this court dis poses of them and resolves the issues on that record is well established; the fact that the chancellor based his decision upon an erroneous conclusion does not preclude this court’s reviewing the entire case de novo. Sharum v. Terbieten, 241 Ark. 57, 406 S.W. 2d 136; Conrad v. Carter, 255 Ark. 327, 500 S.W. 2d 336. An appeal in a chancery case opens the whole case for review. All of the issues raised in the court below are before the appellate court for decision and trial de novo on appeal in equity cases involves determination of fact questions as well as legal issues. Lewis v. Lewis, 255 Ark. 583, 502 S.W. 2d 505; Gaither v. Campbell, 94 Ark. 329, 126 S.W. 1061; Arkansas State Board of Pharmacy v. Fey, 235 Ark. 319, 357 S.W. 2d 658. The appellate court reviews both law and fact and, acting as judges of both law and fact as if no decision had been made in the trial court, sifts the evidence to determine what the finding of the chancellor should have been and renders a decree upon the record made in the trial court. Nolen v. Harden, 43 Ark. 307, 51 Am. Rep. 563; Lewis v. Lewis, supra. The appellate court may always enter such judgment as the chancery court should have entered upon the undisputed facts in the record. Larey, Commissioner v. Continental Southern Lines, 243 Ark. 278, 419 S.W. 2d 610.
This court reviewed this case according to the invariable practice in equity cases and found that the chancery court had reached the erroneous conclusion that Green and Morgan were not entitled to specific performance. But this did not conclude the review. On the record before us, the property had been conveyed to Hudson, thus eliminating specific performance as a remedy available to Green and Morgan because there was no indication that Hudson had any notice of the claims of Green and Morgan. Whenever specific performance of a contract is denied because it cannot be enforced in a chancery action, but there has been a breach of the contract, the plaintiff is entitled to recover damages for the breach and, the chancery court, having assumed jurisdiction of the action, should determine the damages resulting from the breach. Nakdimen v. Atkinson Improvement Co., 149 Ark. 448, 233 S.W. 694. Thus the question of damages for breach of the contract by appellants here was an unresolved issue and it was the duty of this court to determine the amount of damages. We properly considered this issue on trial de novo. Killingsworth v. Tatum, 203 Ark. 354, 157 S.W. 2d 30; Orr v. Bergemann, 225 Ark. 616, 284 S.W. 2d 105.
Green and Morgan had offered evidence on the issue and there was no reason for this court to believe that appellants here (appellees on the first appeal) had not offered whatever evidence they relied upon on that issue. They certainly had not been deprived of the opportunity to do so by any action of the trial court. Where the case has been once heard upon the evidence or there has been a fair opportunity to present it, this court will not usually remand a case solely to give either party an opportunity to produce other evidence; the rule, however, is not imperative and this court has the power, in furtherance of justice, to remand any case in equity for further proceedings, including hearing additional evidence. Fish v. Bush, 253 Ark. 27, 484 S.W. 2d 525; Wilson v. Rodgers (on rehearing), 250 Ark. 356, 468 S.W. 2d 750; Nakdimen v. Atkinson Improvement Co., supra; Brizzolara v. Powell, 214 Ark. 870, 218 S.W. 2d 728. It has been the invariable practice of this court not to remand a case to a chancery court for further proceedings and proof where we can plainly see what the equities of the parties are, but rather to render such decree here as should have been rendered below. Pickett v. Ferguson, 45 Ark. 177, 55 Am.Rep. 545; Narisi v. Narisi, 233 Ark. 525, 345 S.W. 2d 620. See also, Baxter County Bank v. Copeland, 114 Ark. 316, 169 S.W. 1180. The usual practice is to end the controversy by final judgment here or by directions to the trial court to enter a final decree. Wilbom v. Elston, 209 Ark. 670, 191 S.W. 2d 961. With the evidence fully developed, this court should decide the case without remanding it to the chancery court. Lewis v. Lewis, supra.
Following the conventional procedure, we undertook to determine what damages should have been awarded appellees Green and Morgan. It was clear to us that on the record before us that they were entitled to at least the difference between the consideration for the conveyance to Hudson and the mortgage indebtedness to Twin City Bank. We might well have entered judgment for that amount or directed the chancery court to do so, but Green and Morgan had offered evidence that the damages were $102,803, which appellees there (appellants here) had attacked on the ground that the expert witness’s testimony was based upon error for failure to take into consideration all the pertinent factors bearing upon the question. The only objection to that testimony was that it was irrelevant. We were unwilling to enter judgment here upon the testimony of the expert witness.
The appellate court does have the discretionary power to remand an equity case for further proceedings. Arkansas Commerce Com’n. v. St. L. S. W. Rwy., 247 Ark. 1032, 448 S.W. 2d 950. Even though the general rule is that this court will not permit cases to be tried piecemeal, an equity case may be sent back for additional proof when we find justification for a deficient record. Fish v. Bush, supra. We have exercised the power of this court to remand an equity case for further proceedings when it is clear to us that the chancery court’s decision was based upon an erroneous theory, and we cannot determine from the record the rights and equities of the parties. Lewis v. Lewis, supra. In such a case, the appellate court may, in its discretion, remand for further hearing, either on the whole case or on certain issues. Wilborn v. Elston, supra. The appellate court has the discretionary power to remand a chancery case for further proof on a limited point. Shick v. Dearmore, 246 Ark. 1209, 442 S.W. 2d 198. In exceptional circumstances, the appellate court is clothed with discretion to remand an equity case for additional proof, if that is necessary to achieve equity. Arnett v. Lillard, 247 Ark. 931, 448 S.W. 2d 626.
In retrospect, it might have been better if we had simply entered judgment for $84,651 here. But we exercised our discretion to remand the case for a determination whether Green and Morgan were entitled to recover more than that amount, because they asked judgment here on the basis of the expert witness’s testimony and other evidence might well have been offered by them, had the testimony of their expert witness been excluded upon objection or motion to strike in the trial court. This court exercised its discretion to remand the case for additional proof, limited to damages in excess of $84,651, and that decision here was conclusive on the parties, the trial court and this court, on a subsequent appeal, and the further proceedings in the trial court were strictly limited by our decision on the first appeal to the one matter left open. Gaither v. Campbell, 94 Ark. 329, 126 S.W. 1061; Fortenberry v. Frazier, 5 Ark. 200; Milsap v. Holland, 186 Ark. 895, 56 S.W. 2d 578. Appellants here had ho right to have the case reopened to permit them to offer evidence on the damage phase of the case since that proof could have been offered at the original trial. Carter v. Zachary, 243 Ark. 104, 418 S.W. 2d 787; Fish v. Bush, supra. The established practice of this court, when a new trial on any part of an equity case is intended, is to give special directions to that effect. Deason & Keith v. Rock, 149 Ark. 401, 232 S.W. 583. We followed that practice. Except for the matter left open in our decision on the first appeal, that decision was conclusive. Gaither v. Campbell, supra. The chancery court had no power to enter any decree except that directed by this court, and it had no power to change or extend the mandate of this court. Sellers v. Horney, 148 Ark. 390, 230 S.W. 575. The directions of this court upon reversal and remand in an equity case are the law of the case and the guide for the lower court in entering the decree. Walker v. Goodlet, 109 Ark. 525, 160 S.W. 399.
Whatever this court decided in the exercise of its appellate jurisdiction must be considered as finally settled. Fortenberry v. Frazier, supra; Ashley v. Cunningham, 16 Ark. 168; Milsap v. Holland, supra; Watkins v. Acker, 195 Ark. 203, 111 S.W. 2d 458. This court’s judgment or decree became the law of the case and the trial court could not have varied it or judicially examined it for any purpose other than carrying it into execution. Fortenberry v. Frazier, supra. No matter how irregular the decision of a superior court may be or upon what misapprehension of the facts it may have been made, it is the law of the case to the inferior court, and it must be obeyed. Cunningham v. Ashley, 13 Ark. 653; Ashley v. Cunningham, supra. The holding of this court became the law oí the case and the issues decided could no longer be litigated by the parties. American Co. of Arkansas v. Wheeler, 183 Ark. 550, 36 S.W. 2d 965; Wilborn v. Elston, supra. The chancery court can give no other or further relief as to any matter decided by the supreme court, even when error is apparent; it can only settle such matters as have been remanded to it and not adjudicated on appeal. Fortenberry v. Frazier, supra.
Where a judgment [or decree] is reversed for error in the proceedings in the court below and remanded for proceedings according to law and not inconsistent with the opinion of the court, it is always understood that the proceedings in the court below, prior to the fault or error which is ascertained by this court to exist, are in no wise reversed or vacated by the adjudication of the appellate court, but the fault or error adjudicated is the point from which the cause is to progress anew. Nelson v. Hubbard, 13 Ark. 253.
The question before the chancery court was what the judgment of this court was, not what it should have been. Sellers v. Homey, supra. Appellate power is exercised by the supreme court over the proceedings of inferior courts, not by the latter over those of the former. Fortenberry v. Frazier, supra. The chancery court may only inquire on remand concerning a matter which has never been adjudicated and which is not in conflict with the appellate court’s mandate. American Co. of Arkansas v. Wheeler, supra. The chancery court cannot review, alter or modify the judgment or decree of the appellate court for any supposed error or for any other matter that might have been considered on appeal. Meyer v. Johnson, 60 Ark. 50, 28 S.W. 797. What we said there is appropriate here, viz:
The motion of Mrs. Alice B. Johnson, as executrix of W. W. Johnson, deceased, was properly overruled. The object of it was to change or modify the judgment of this court for a supposed error. If such an error existed, it could have been corrected when this cause was here on the first appeal. The chancery court could not do so. It cannot “review, alter, or modify the judgments or decrees of this court for any supposed error, or for any matter which might have been considered here.” Jacks v. Adair, 33 Ark. 161.
To tolerate a disregard of the authoritative mandate of the superior court by an inferior one and a reinvestigation of the questions upon which a decision has been made by the in ferior court would, in effect, constitute the inferior the superior one with power to decide upon the correctness and validity of the superior court’s decisions. Ashley v. Cunningham, supra. On this second appeal, after remand by this court on the first appeal, the question before us is what the judgment of this court was, not what it should have been. Sellers v. Homey, supra. Nothing is before us except the proceedings subsequent to the mandate. Milsap v. Holland, supra; Fortenberry v. Frazier, supra.
The minimum damages allowable to Green and Morgan and the terms of the remand on our decision are the law of the case and are binding on the parties, the trial court and this court, on this appeal, even if we should now think they were erroneous. Arkansas Baptist College v. Dodge, 189 Ark. 592, 74 S.W. 2d 645; International Harvester Co. v. Burks Motors, Inc., 252 Ark. 816, 481 S.W. 2d 351; Farmers Cooperative Ass’n. Inc. v. Phillips, 243 Ark. 809, 422 S.W. 2d 418; M. L. Sigmon Forest Products, Inc. v. Scroggins, 250 Ark. 385, 465 S.W. 2d 673; Wilson v. Rodgers, 256 Ark. 276, 507 S.W. 2d 508; Anderson v. McClanahan, 229 Ark. 239, 314 S.W. 2d 222; Collie v. Coleman, 226 Ark. 692, 292 S.W. 2d 80; Meyers v. Meyers, 214 Ark. 273, 216 S.W. 2d 54; Baker v. State, 201 Ark. 652, 147 S.W. 2d 17; Hutson Motor Co. v. Lake, 193 Ark. 200, 98 S.W. 2d 947; Stuart v. Barron, 148 Ark. 380, 230 S.W. 569.
The decree is affirmed, but modified to reduce the amount of the judgment by $1,000.
In our opinion on the first appeal, where we subtracted 580,349 from 1165,000, we showed a remainder of 885,651, instead of the correct amount of 184,651. The law of the case is not so inflexible that we cannot resolve a conflict apparent on the face of the earlier opinion, by correcting an obvious arithmetical error. | [
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John A. Fogleman, Justice.
The issue on this appeal is whether one of multiple defendants in a tort action, who is found not negligent, is a joint tortfeasor in the sense that codefendants are entitled to credit for any amount paid by him before trial for a release of liability.
John S. Payne filed suit against June Moudy, Kenneth R. Scalf, an employee of Gay & Taylor, Inc., and Richard L. Browder, alleging that, while his vehicle was stopped in a line of traffic, the defendants Scalf and Browder drove their vehicles into each other in such a manner as to cause the vehicle driven by Moudy to collide with the rear of Payne’s vehicle. He sought damages against each of the defendants jointly and severally. Each of the defendants cross-complained against the others for contribution. On August 18, 1977, Payne’s attorney dismissed the action as to Browder only. On August 29, 1977, Payne executed a release of Browder containing the following statement:
This release is solely to Richard Browder and Dairyland Insurance Company, and is not intended to, and does not, in any way affect the liability of any other party (all rights against all other parties being expressly reserved).
When the case was tried in November, 1977, the jury, by answers to interrogatories, found that Moudy and Browder were not negligent, but that Scalf was, and that Payne’s total damages were $20,000.00.
In their cross-complaint against Browder, Scalf and Gay & Taylor, Inc. had alleged that:
Should recovery be had against him, they should have judgment over against such other defendant or defendants as may be found to be negligent in the proportion of that defendant or defendants’ negligence.
Browder’s answer denied that Scalf or Gay & Taylor, Inc., was entitled to any judgment against him and he cross-complained against them for the payment of any judgment rendered against him, pursuant to the Uniform Contribution Among Joint Tortfeasors Act of Arkansas.
The trial court held that Browder, in having been found not negligent, was not a joint tortfeasor, and that Scalf and Gay & Taylor, Inc., were not entitled to credit for the $10,000 paid Payne on behalf of Browder. Scalf and Gay & Taylor, Inc., paid $10,000 toward satisfaction of the judgment and appealed from that part of the judgment in excess of that amount. Browder also appeals, contending that, if Scalf and Gay & Taylor, Inc., are entitled to credit for the $10,000 paid by him, he is entitled to contribution from Scalf and Gay & Taylor, Inc.
All parties concede that Ark. Stat. Ann. § 34-1004 (Repl. 1962) is the controlling statute. It reads as follows:
A release by an injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.
Appellants rely upon the case of Coleman v. Gulf Refining Company of Louisiana, 172 Ark. 428, 289 S.W. 2, and our quoting with approval the following language from Cleveland v. City of Bangor, 87 Me. 259, 32 A. 892:
But, with regard to the point under consideration, no sound reason has been given, and it is believed none can be assigned, for such a distinction between the case of wrongdoers who are jointly and severally liable and those who are only severally liable for the same injury. In either case the sufferer is entitled to but one compensation for the same injury, * * *
Appellant also theorizes that the total judgment for $20,000 should be reduced by the $10,000 paid by Browder.
The definition of joint tortfeasors for the purposes of our version of the Uniform Contribution Among Tortfeasors Act is contained in Ark. Stat. Ann. § 34-1001 (Repl. 1962). It provides:
“Joint Tortfeasors” defined — For the purpose of this Act [§§34-1001 - 34-1009] the term “joint tortfeasors” means two [2] or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.
We cannot agree with the appellants that Browder was a joint tortfeasor. It may well be true that the question of the joint or common liability of joint tortfeasors is determined as of the time the cause of action accrues and not at the time when the right to recover contribution is asserted, but the jury, by its verdict, obviously found that Browder was neither jointly nor severally liable for the injury to Payne. There simply is no way under the statutory definition that Browder can be considered as a joint tortfeasor. The fact that he was willing to pay for a release from “all claims, demands, damages, actions, rights of action, of whatever kind or nature which I/We now have or may hereafter have arising out of, in consequence of or on account of all injuries to persons, including those known and unknown, developed or undeveloped, and unforeseen or unexpected developments and consequences of known injuries and damage to property resulting to me/us in any way from an accident which occurred on or about the 23rd day of March, 1976, at El Dorado, Arkansas,” did not make him a tortfeasor. The release also contained a clause stating that the sum was paid as a compromise and settlement of the dispute between the parties as to whether Browder was liable and another that the payment of the sum was not to be construed as an admission of any liability.
None of the cases cited by appellants have any bearing on this question. There has been no admission of liability by Browder. Scalf and Gay & Taylor, Inc., have had full oppor tunity to show that Browder was guilty of negligence which was a proximate cause of Payne’s damages. They failed to do so. The closest approach to this situation, among the cases cited by appellants, is found in Walton v. Tull, 234 Ark. 882, 356 S.W. 2d 20. That case is readily distinguishable, however. There we said that evidence of the settlement agreement between the plaintiff and one of the codefendants was properly excluded from evidence because it would have informed the jury that one of the codefendants had admitted liability and it could have been the basis for argument that plaintiff had accepted the amount of the settlement as fair compensation for his injuries. Not only was there no admission of liability here, as there was there, but there was a finding of no liability here, while the tortfeasor who made the settlement in Walton was found to have been guilty of negligence which was a proximate cause of plaintiff’s injury in the ratio of 60%, with the other 40% being divided among three other parties.
We approached the matter much more closely in Welter v. Curry, 260 Ark. 287, 539 S.W. 2d 264. There we said:
We can only assume that appellant’s contention is based upon the objections registered in the trial court, even though appellant may have abandoned the contention that she is entitled to either indemnity or contribution from the parents. If she were, the failure to submit the interrogatories requested would have been a clear abuse of discretion. But we have found no basis for either contribution or indemnity in this case. Appellant was not entitled to contribution, because the parents were not joint tortfeasors with appellant under the Uniform Contribution Among Tortfeasors Act. Ark. Stat. Ann. § 34-1001 et seq. (Repl. 1962). It seems to be well settled that there is no right to contribution under the act from one who is not liable in tort to the injured person. Ark. Stat. Ann. §§ 34-1001, 1002; Annot., 34 A.L.R. 2d 1107 (1954). Before the statute comes into play, there must be a common liability to an injured party, and the injured party must have a possible remedy against both the party seeking contribution and the party from whom it is sought. * * * It is clear that these minor plaintiffs had no remedy against their parents. * * * [Citations omitted.]
Courts in other jurisdictions have taken the position that the injured party’s right to recover from the party with whom the settlement was made must be established. In Swigert v. Welk, 213 Md. 613, 133 A. 2d 428 (1957), it was held that before a tortfeasor, against whom judgment is rendered, is entitled to a reduction of judgment or contribution from one who has settled with the injured party, there must be a showing, in one way or another, of negligence on the part of the party released by the settlement. In Davis v. Miller, 385 Pa. 348, 123 A. 2d 422 (1956), it was held that the judgment against a tortfeasor could be reduced by reason of a settlement by the injured party with a third party only if it could be established that the third party was a tortfeasor. This appellants failed to do, after full opportunity to do so. The mere fact that appellee may have recovered more damages than he actually suffered cannot be taken advantage of by Scalf and Gay & Taylor, Inc., when the jury found that the negligence of Scalf was the sole proximate cause of Payne’s damages of $20,000.
The judgment is affirmed.
We agree. Harris, C.J., and Holt and Purtle, JJ. | [
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John I. Purtle, Justice.
This case involves entitlement to the proceeds of a fire insurance policy issued on an aircraft which was subsequently destroyed by fire. The seller, who held the title to the aircraft, the purchaser-owner and a lienholder each claimed part or all of the proceeds of the policy. Payment was made to the titleholder and the named lienholder after the purchaser refused to endorse a draft made to all three. The titleholder filed suit pursuant to the sales purchase contract, and the purchaser defended alleging the Wingo Act, Ark. Stat. Ann. §64-1202 (Repl. 1966), prevented the seller from enforcing the contract. The purchaser also counterclaimed against the seller and made the insurer a third party defendant. The trial court ruled the seller had no standing to sue in Arkansas because it was not authorized to do business in the state. The insurer pleaded estoppel and relied on its contract terms as a defense to paying the claim a second time.
The trial court ruled that the case could proceed to trial only between the purchaser and the insurer and, further, the only issue was estoppel. This ruling was based upon a pretrial order, which was subsequently read to the jury, holding the titleowner had no standing to sue and that the policy was in force at the time of the loss. The court further held, prior to the trial, that unless the purchaser was es-topped he could recover the policy limits. The jury found in favor of the purchaser and the insurer appeals.
We are called upon to rule that the court erred in limiting the insurer’s defense to the issue of whether the purchaser was estopped to deny he acquiesced in the payment to the seller and the listed lienholder. We believe the court did err in limiting the evidence to the issue of estoppel and the case must be remanded.
The facts are not materially in dispute. The lease-sale agreement was entered into in El Dorado, Arkansas, on May 30, 1975, between Carpet Mart of Texarkana, Inc., a Texas corporation, and Thomas D. Standley, Jr., a resident of Crittenden County, Arkansas. Standley was to pay an agreed monthly rental which would be credited to the purchase price. He also agreed to procure fire insurance which would protect the rights of the seller and lienholder. Such policy was procured from Calvert Fire Insurance Company. The policy named Standley and Carpet Mart as insureds and American National Bank of Morristown, New Jersey, as lienholder. The policy contained the standard clause allowing payment as “interest appears.” The face amount of the policy was $35,-000 and it had a $50 deductible clause. The lien was shown on the policy to be in the amount of $21,600 at the time of issue.
The aircraft was totally destroyed by fire on February 1, 1976, shortly after major repairs at a cost of about $6,000, for which a lien was subsequently filed. Calvert determined the plane was a total loss and the salvage was valued at $5,000. Proof of loss was executed by Standley. The proof showed he and Carpet Mart as named insureds with American National as a lienholder. Calvert issued a check for $34,950 payable to all three of the above parties. Carpet Mart attempted to get Standley to endorse the check and return it to them for further disposition. He refused to do so and requested that Carpet Mart endorse it and leave it with him or his attorneys. His reason was that he did not trust Carpet Mart’s representative. On May 28, 1976, Calvert reissued a draft without Standley’s name on it. At the time Calvert issued its second draft it obtained a hold harmless agreement from Carpet Mart. Also, Calvert collected $5,000 from Carpet Mart for the salvage. At no time did Standley object to including the other names on the draft nor did he request, prior to filing suit in July of 1976, that the proceeds be paid only to himself.
Calvert alleges it was error to limit their defense to that of estoppel by Standley. It was agreed between the parties that the Wingo Act ruled Carpet Mart out of the lawsuit as a claimant. As we see it, the matter resolved to a dispute between Calvert and Standley as to whether the proceeds were improperly paid and whether Standley was estopped to make the present claim. Calvert contended it had the right to pay the parties as their respective “interest appeared” at the time. It is not suggested that Calvert was not authorized and doing business in Arkansas. They were no way dependent on Carpet Mart to transact business in this state. Obviously, Calvert would have been subject to suit by Carpet Mart in Texas or American National in New Jersey pursuant to the terms of the insurance policy. Both were shown on the face of the policy to have an interest in the proceeds from any loss. Certainly, Calvert was not an assignee of Carpet Mart and their rights and responsibilities were not dependent upon the status of Carpet Mart.
A claim of usury was urged as a defense to enforcement of a suit to collect on a loan in the case of Seaboard Finance Co. v. Wright, 223 Ark. 351, 266 S.W.2d 70 (1954). While the suit was pending the debtor committed suicide. The credit life insurer paid the proceeds of the policy to the creditor. There we upheld the right of the insurer to pay the creditor until the loan had been declared usurious. We believe the same rationale applies in the present case. Since Calvert made payment before the contract between Standly and Carpet Mart was ever challenged, they were not in error except inasmuch as they may not have properly determined the “interest” of the various parties. The trial court was correct in stating Calvert could not just haul off and pay anybody they wanted to and release their liability under the contract. However, we do not find in the record what the interest of each party amounted to. In Price v. Harris, 251 Ark. 793, 475 S.W.2d 162 (1972), we held that the mortgagee was entitled to proceeds of a fire policy against the claims of the mortgagor where the policy contained a clause “as interest appears.” When a party stands by and fails to assert a claim for proceeds of an insurance policy he cannot later assert it against the interest of those who rely on his silence. Johnson v. Spencer, 222 Ark. 710, 262 S.W.2d 290 (1953); and Whitley v. Irwin, 250 Ark. 543, 465 S.W.2d 906 (1971). A fire loss to a vehicle was involved in Newberry v. Fireman’s Fund Insurance Co., 253 Ark. 330, 485 S.W.2d 731 (1972), and there we held the mortgagee had priority on the proceeds where there was “as interest appears” clause in the insurance policy.
We believe the trial court improperly interpreted the pretrial order to unduly limit Calvert proof at the trial. We hold that Calvert should be allowed to furnish evidence not only of estoppel by Standley but to the effect that they proceeded in compliance with the terms of the policy. The proof will naturally include matters relating to the interest of various parties. The case is remanded with directions to proceed in a manner consistent with the foregoing opinion.
Reversed and remanded. | [
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John A. Fogleman, Justice.
The Housing Authority of Pike County, Arkansas, contracted with Plez Lewis & Son, Inc., for the construction of a housing project according to plans and specifications prepared by architect Stanley Brown. After Plez Lewis defaulted, the housing authority called upon Maryland Casualty Company, surety on the contractor’s performance bond, to complete the contract. Maryland contracted with Con-Ark Builders, Lie., to complete the construction in accordance with the original plans. Apparently, it was contemplated that a change would b.e made in the plans and specifications as to foundations, because mention of this was made in the contract between Maryland and Con-Ark. After Con-Ark. took over, “Change Order Gf-2” was added requiring the installation of 124 piles, a minimum of ten feet in length or a total of 1,240 lineal feet. Con-Ark’s proposal to Maryland had contained an item of $6,500 for this work plus $4.75 per foot in excess of 1,240 feet. Con-Ark subcontracted this work to Piling & Repairs, Inc., for $5,084 plus $3.85 for each additional lineal foot. After the piling work started,' R. W. Laird, the architect’s representative on the job site, instructed Piling & Repairs’ workmen to drill the pilings deeper than the originally specified ten feet. Accordingly, this resulted in an additional 1,268 lineal feet of drilling over the original specification of 1,240 lineal feet.
Piling & Repairs, who had been paid by Con-Ark for a portion of the overrun, brought suit against Con-Ark for the balance due on the overrun. Con-Ark admitted the overrun and cross-complained against Mary land Casualty Company on Lhe premise that should Con-Ark be liable to Piling & Repairs, Con-Ark should have judgment against Maryland. Maryland then cross-claimed against the housing authority and Stanley Brown and R. W. Laird seeking judgment against them, jointly and severally, for any amount for which it was held liable.
At the trial it was stipulated that Stanley Brown was the housing authority’s agent and that Laird was Brown’s agent.
The trial court entered judgment for Piling & Repairs against Con-Ark as prayed, for Con-Ark against Maryland Casualty Company as prayed, and for Maryland against the housing authority, Stanley Brown and R. W. Laird, jointly and severally, for anything Maryland might be required to pay to satisfy the judgment in favor of Con-Ark. Brown and Laird filed notice of appeal. Con-Ark gave notice of appeal from the judgment in favor of Piling & Repairs. The appeal by the housing authority was designated as a cross-appeal in the sense used in Ark. Stat. Ann. § 27-2106 (Repl. 1962), Brown v. Maryland Casualty Co., 245 Ark. 70, 431 S.W. 2d 258. Maryland also appealed.
Maryland contends that it is not liable to Con-Ark unless and until it is paid for the extra work by the housing authority and its architect. tinder the terms of the contract between Con-Ark and Maryland allowance of the amount to be paid by the owner was a condition precedent to payment from Maryland to Con-Ark. The pertinent contract portions are as follows:
“7. Maryland agrees to pay the Contractor, as full compensation for all liability assumed hereunder, the sum of $109,500.00, subject to additions and deductions residting from change orders or extras issued by the Owner, to be paid as follows:— a. The sum of $101,729.83, being the balance of the Contract price remaining under tlie said Contract between Lewis and the Owner, out of the estimate and retained percentages to be received by Maryland from the Owner periodically, as provided for in the Contract, between Lewis and the Owner, for work performed by the Contractor, and to be paid to the Contractor within five (5) days after receipt thereof by Maryland, such payment to be in like amounts as Maryland receives from the Owner.
b. The additional sum of $7,770.17 * * *
c. Within five (5) days after receipt by Maryland from the owner of any payment to it for extra work ordered, including but not limited to contemplated change in foundations, on or after the effective date of this AGREEMENT and performed by the Contractor, Maryland mil make payment of an amount equal to the amount received by Maryland from the Owner for the aforesaid extra toork.
d. Within five (5) days after the Owner notified Maryland in writing that the Contract has been completed and accepted and the Owner has paid the final estimate and retained percentage to Maryland, then Maryland will pay to the Contractor the balance due under this AGREEMENT, if any. It is distinctly understood and agreed by the parties hereto that the payments provided for hereunder are to be made only after Maryland receives from the Owner the estimate payments, payments for extras and changes, and retainages to be paid to Maryland by the Owner and Lewis. It is further understood- and agreed that the payments shall, in no event, exceed the sum of $109,500.00, subject to any additions or deductions provided, for hereunder. . Any change or increase in the amount of this AGREEMENT hereinafter provided for shall he paid to the Contractor only in such amount as is allotved therefor by the Owner, anything in this AGREEMENT to the contrary notwithstanding.
It is understood that the payments provided for as above are to be made only after Maryland receives from the Owner the estimate payments, the payments for extras and changes, and retainages to be paid Maryland by the Owner under the terms of its Contract with Lewis, provided, however, that should the Owner withhold any estimate payment, payment for extras, or retainage for a period of twenty (20) days beyond the time it would normally be paid because of any reason not the fault of the Contractor, then Maryland shall nevertheless make payment to the Contractor for any such estimate, extra, or retainage earned by the Contractor and without awaiting payment from the Owner, as provided for in subparagraphs a, b, and c; provided further, however, that should the Owner withhold any payment herein referred to for a period of twenty (20) days beyond the time it would normally be paid, for reasons not the fault of the Contractor, then Maryland shall have the right to cancel this AGREEMENT upon notice to the Contractor. In the event of such cancellation, the Contractor shall be entitled to payment from Maryland for all amounts earned by the Contractor, including retain-age under this AGREEMENT, up to the date of cancellation.” (Emphasis ours.)
It is obvious that all parties knew that this was an undertaking to complete a job on which the original contractor had defaulted. Con-Ark was Maryland’s subcontractor for the completion of the work. There is no reason -why the parties could not contract for this work on any terms they agreed upon. There is no reason wl\y the terms of the contract which both parties agreed to should not be enforced.
In Blair v. United States, 147 F. 2d 840 (8th Cir. 1945), there was a contract between a contractor and a subcontractor which contained provision's very similar to those in this case. A fixed completion date in the contract between the government and Blair, the general contractor, had been extended. By a later supplemental contract, this date was advanced to the original one, upon agreement of the government to reimburse Blair for additional costs resulting from the reduction of time on the basis of expenditures approved by the government’s contracting officer. Blair notified his subcontractors that they were committed to the original completion date, <£ 'with additional compensation as approved by the Government being granted you where applicable, in accordance with Article II of attached Supplemental Agreement. ’ ” In reversing a judgment in favor of the subcontractor, the court said:
"* * * The above, quoted letter discloses not a promise, by Blair to pay, but that additional compensation as approved by the government would be granted where applicable. This implied a promise that Blair would turn over funds if and when realized by allowance and payment by the government. As such payment has not been received by him and no claim is made that he has not diligently attempted to make collection, and it affirmatively appears that he has done so, defendant should not be held liable contrary to the terms of his agreement. * * * (Citations omitted.) We conclude that plaintiffs were not entitled to recover on account of the speed-up agreement though they may be entitled to such recovery dependent upon whether or not defendant Blair received additional compensation from the government on account of the adjustment in the date of the completion of the work under his contract.”
The rule stated there is applicable to this situation. There is no escape from the conclusion that, as to changes adding to the contract price, the liability was not ad-solute but conditional. While some of the clauses of the contract might be construed as only fixing a time for payment of an absolute liability, the provision of Section 7 d that any change or increase be paid to Con-Ark “only in such amount as allowed therefor Irg the Owner, anything in this AGREEMENT to the contrary notwithstanding” can only create a liability conditional upon approval of the change by the owner.
Language contained in Mascioni v. I. B. Miller, Inc., 261 N.Y. 1, 184 N.E. 473 (1933) is pertinent. In that case, the contractor agreed to pay a subcontractor 55 cents per cubic foot for erection of concrete walls. The promise to pay contained the proviso “Payments to be made as received by the Owner.” The court reversed a holding by the appellate division that this provision merely fixed the time of payment and did not create a condition precedent. That court said:
“A provision for the payment of an obligation upon the happening of an event does not become absolute until the happening of the event. Whether the defendant’s express promise to pay is construed as a promise to pay ‘if’ payment is made by the owner or ‘when’ such payment is made, ‘the result must be the same; since, if the event does not befall, or a time coincident with the happening of the event does not arrive, in neither case may performance be exacted.’ * * *
True, a debt with consequent obligation to pay may exist aside from any express promise to pay. Then a condition annexed to an express promise to pay the debt may render the promise to pay conditional without making the debt subject to the same condition. ‘It must be admitted, however, that a condition annexed to a promise to pay a debt will commonly, upon the true construction of the instrument in which it is contained, extend, to the debt itself. There is a difference also between a promise to pay a debt on a certain condition, and a proviso that the debt shall be payable only upon a certain condition; for the latter necessarily renders the debt itself conditional. ’ Langd'ell, Summary of the Law of Contracts, § 36. In this case, if there were no express promise to pay a stipulated price for stipulated work, such a promise would be implied. There is, however, an express promise to pay moneys ‘as received from the Owner,’ and the event upon which that promise would ripen into an absolute, immediate obligation has not occurred. From the express promise to pay upon the happening of an event, an inference may be drawn that the parties did not intend or impliedly agree that payment should be made even if the event does not occur.
In many cases, nevertheless, an inference that an express promise to pay a debt on a certain condition excludes an implication that the debt shall be paid, even though performance of the condition is impossible, would defeat the intention of the parties. The tests approved by the Law Institute in its Restatement of the Law of Contracts, § 295, are whether ‘ (a) a debt for performance rendered has already arisen and the condition relates only to the time when the. debt is to be discharged, or (b) existence of the condition is no material part of the exchange for the promiser’s performance, and the discharge of the promiser will operate as a forfeiture.’ In either case ‘impossibility that would discharge the duty to perform a promise excuses the performance of a condition.’
Here on its face the contract provides for a promise to perform in exchange for a promise to pay as payments are ‘received from the Owner.’ Performance by the plaintiff would inure directly to flie benefit of tbe defendant, because the defendant had a contract with the owner to perform tbe ■work for a stipulated price. Tbe defendant would not profit by the plaintiffs’ performance unless the owner paid the stipulated price. That was the defendant’s risk, but the defendant’s promise to pay the plaintiffs for stipulated work on condition that payment was received by the defendant shifted that risk to the plaintiffs, if tbe condition was a material part of the exchange of plaintiffs’ promise to perform for defendant’s promise to pay.”
The principle is succinctly stated in 17 Am. Jur. 2d, Contracts, § 339:
“There is a difference between a promise to pajr a debt on a certain condition, and a provision that the debt shall be payable only upon a certain condition, for the latter necessarily renders tbe debt itself conditional. Although a condition annexed to an express promise to pay a debt may render the promise to pay conditional without making the debt subject to the same condition, a condition annexed to a promise to. pay will commonly be construed to extend to the debt itself.”
It has been recognized and applied by this court as illustrated by the following language from Jacks v. Phillips County, 25 Ark. 64:
“The proposal made by Jacks to the county court, and which was accepted, was, that Jacks was to receive for his services one-half of the money collected off of the lands which he might ascertain to have been omitted in the late assessment of the county taxes; and this right to compensation depended upon the performance of his contract, by ascertaining the omitted lands and bringing them upon the assessor’s list, and that money had been received in payment of taxes on the lands so ascertained and assessed. Then, and not until then, would he have a right to claim of the county one-lialf of the money collected; because his contract was conditional, and his right to compensation depended upon his performance of his contract, and the collection of the money. ’ ’
The above stated principle is applicable to this case. Consequently the judgment against Maryland is reversed.
Inasmuch as the judgments in favor of Maryland and against Brown, Laird and the housing authority were made dependent upon the amount which was paid by Maryland on the judgment in favor of Con-Ark, those judgments must be reversed also, in spite of the fact that we could dismiss the appeal of the housing authority or affirm the judgment against it because of its failure to file a brief on cross-appeal. See Rule 10; Dunham v. Phillips, 154 Ark. 87, 241 S.W. 361; Day v. Langley, 202 Ark. 775, 152 S.W. 2d 308. These judgments were void as conditional judgments in any event. Bank of Commerce v. Goolsby, 129 Ark. 416, 196 S.W. 803; See also Brotherhood of Locomotive Firemen and Engineers v. Simmons, 190 Ark. 480, 79 S.W. 2d 419.
It is necessary that we consider the appeal by Brown and Laird, because, on a retrial, they might be held liable to Maryland for any amounts for which Maryland could not recover from housing authority because of any actions taken by them without authority from the principal. Under the evidence hereinafter set out and the finding of the trial court thereon, Laird could not be liable to Maryland. Its cross-complaint against him is dismissed.
The trial court found that Laird was Stanley Brown’s agent, that Stanley Brown was the housing authority’s agent, and that the agents had either the actual or apparent authority of the housing authority to require the additional piling, in spite of evidence that Laird had exceeded Ms authority. The trial court found that the actions of Laird had been ratified by Brown. There is substantial evidence to support this finding in the testimony of AY. S. Little, field engineer for Brown. Lillie stated that before the drilling was more than one-half completed he discovered that the drilling was beyond the depth specified in the change order. He reported this fact to Brown but did not stop the work. There was testimony by Kennedy, the construction superintendent for Con-Ark, that Air. Little also took part in ioiling him whether or not the holes drilled for piling were deep enough. It was Kennedy’s recollection that Little, came on the job about May 13 and remained for two or three days. He testified that Little was telling him to go to refusal during that time. Kennedy stated that Little was aware of the additional depth to which these drillings were being made. The authorities consistently hold that where an agent is duly constituted, names his principal, contracts in the principal’s name, and does not exceed his authority, the principal is responsible on the contract and not the agent. Neely v. State, 60 Ark. 66, 28 S.W. 800; Dale & Banks v. Donaldson Lbr. Co., 48 Ark. 188, 2 S.W. 703; McCarroll Agency Inc. v. Protectory For Boys, 197 Ark. 534, 124 S.W. 2d 816; Ormsby v. Kendall, 2 Ark. 338; Ogletree v. Smith, 176 Ark. 597, 600, 601, 3 S.W. 2d 683; Meier v. Hart, 143 Ark. 539, 541, 542, 220 S.W. 819; Ferguson v. McMahon, 52 Ark. 433, 12 S.W. 1070. A principal, knowing of the acts of his agent, or of facts putting him on notice thereof, who fails to object cannot be heard to deny the agency but will be held to have acquiesced in and ratified his acts. St. Louis-San Francisco Railway Co. v. Lee Wilson Co., 212 Ark. 474, 206 S.W. 2d 175; American Mortgage Co. v. Williams, 103 Ark. 484, 145 S.W. 234.
The authority of an architect as the owner’s agent is limited. He may not direct that the work be done in any manner other than set out in the plans and specifica tions, except as lie has been given authority to do so in the contract. Incorporated Town of Bono v. Universal Tank & Iron Works, 239 Ark. 924, 395 S.W. 2d 330. Since there is no evidence in the record to show Brown’s actual or apparent authority to bind housing authority or to show that the housing authority knew of Brown’s or Laird’s actions, we are unable to say whether Brown or Housing Authority, or either of them, is liable to Maryland. Housing Authority liability to Maryland is dependent. upon its contract with Maryland and its contract with the original contractor or upon the extent of (he architect’s actual or apparent authority. Since the record is deficient in these respects, we remand Maryland’s cross-complaint against Brown and the housing authority for a new trial.
The appeal by Con-Ark from the judgment against it in favor of Piling & Repairs is-without merit. There is nothing to indicate that the compensation of Piling & .Repairs depended upon recovery by Con-Ark from Maryland. The contract provided for a fixed compensation. The only contingency was the depth of the drilling for the piling for which Piling & Repairs was to be paid ‡3.85 for each additional foot. There was evidence that the President of Con-Ark approved the additional drilling by Piling & Repairs anct assured them of payment for the additional footing. That judgment is affirmed.
Remanded for further proceedings consistent with this opinion.
Hoot, J., not participating.
George Rose Smith and Byrd, JJ., dissent.
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George Rose Smith, Justice.
On June 7, 1968, a state police officer issued a traffic ticket to the appellee Goodwin, charging him with reckless driving and directing him to appear in a justice of the peace court for trial. In the justice court Goodwin moved for a dismissal of the charge, on the ground that in misdemeanor cases a justice of the peace receives his fees and costs only when the accused is convicted. Such a provision of law is a denial of due process. Tumey v. Ohio, 273 U. S. 510 (1927). The justice denied the motion to dismiss, but on certiorari the circuit court sustained Goodwin’s contention and prohibited the justice from proceeding further. The State, at the prosecuting Attorney’s request, has taken an appeal to set the question at rest. Ark. Stat. Ann. § 43-2720 (Repl. 1964).
The circuit court was right. Under the Tumey case the presiding judge in a criminal case must not have a pecuniary interest in convicting the accused. There the court set aside a conviction in a mayor’s court, because the mayor was entitled to recover costs only if the trial resulted in a conviction. The opinion pointed out that the practice existed in several states, including' Arkansas.
We still have on the statute books a remnant of the condemned procedure. A justice of the peace receives certain fees and costs in criminal cases. Ark. Stal. Ann. § 12-1731 (Repl. 1956). The fees must be paid by the defendant if he is convicted. Ark. Stat. Ann. § 43-2405. The statute is silent as to the defendant’s liability when he is acquitted, which is construed to mean that he is not liable in that eventuality. Land v. Jolley, 175 Ga. 788, 166 S.E. 217 (1932); Childers v. Commonwealth, 171 Va. 456, 198 S.E. 487 (1938); State v. Faulkner, 75 Wyo. 104, 292 P. 2d 1045 (1956). In misdemean-or cases —and reckless driving is a misdemeanor; Ark. Stat. Ann. § 75-1003 and 1004 (Repl. 1957)—the county is not liable for the justice’s fees. Section 43-2405. Thus the situation falls within the ban of the Tumey case.
The State argues that the justice of the peace can recover fees and costs in any event, because the statutes require the prosecutor in misdemeanor cases to give bond for the payment of all costs. Section 44-301. We have held, however, that the bond requirement does not apply wheu the prosecutor is a law enforcement officer acting in the performance of his duties. Coger v. City of Fayetteville, 239 Ark. 688, 393 S.W. 2d 622 (1965); Thebo v. State, 161 Ark. 619, 256 S.W. 381 (1923). We adhere to that view, because obviously a police officer ought not to be required to give a bond for costs as a result of having issued a traffic ticket. Hence the cost-bond statute does not render inapplicable the principle of the Tumey case.
Of course the fact that a justice of the peace would have a pecuniary interest in a judgment of conviction, under § 43-2405, does not prevent him from exercising the jurisdiction in misdemeanor cases given to him by § 43-1405 if he elects to serve without compensation either upon a conviction or upon an acquittal. It is appropriate for us to point out that additional legislation on the subject seems to be needed.
Affirmed. | [
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Richard B. Adkisson, Chief Justice.
This case involves a land dispute regarding an easement of ingress and egress. Appellants, John and Pauline Bean, are the owners of an easement over land belonging to appellee, Jessie C. Johnson. This easement was established in 1977 by a Calhoun County Chancery Court order which determined the respective rights of the parties:
. . . that title in and to the lands described in the complaint herein be, and hereby is, quieted and confirmed in the defendants, Jessie C. Johnson and Evie Lou Johnson; that the plaintiffs have a personal easement across the said lands to reach their respective properties, this easement being a personal one, extending only to plaintiffs [John R. and Pauline C. Bean] and their social invitees; and that the plaintiffs are enjoined and restrained from exercising any acts of ownership or dominion over the said lands belonging to the defendants, Jessie Johnson and Evie Lou Johnson.
In 1980 appellants brought suit again, alleging that appellee had interfered with the easement granted in the 1977 order, interfered with appellants’ property, interfered with a prospective contract to sell their property, and had trespassed on appellants’ easement. Appellants requested damages, an injunction, and that appellee be held in contempt. The trial court refused to grant the relief requested, but elaborated on its former decision by stating:
The plaintiffs, John R. Bean and Pauline C. Bean, have a personal easement across the lands of the defendant, Jessie C. Johnson, that extends to them and to their social invitees. However, if social invitees of plaintiffs attempt to use the easement when the plaintiffs are not present, then such social invitees shall first report to the defendant, Jessie C. Johnson, that they are going to use the easement and shall furnish to the defendant written proof that they are, in fact, social invitees of the plaintiffs. [Emphasis supplied]
It is from this ruling that appellants bring this appeal.
The relevant facts are as follows: Appellants live in Central Arkansas and own a cabin on Champagnolle Creek in South Arkansas. The easement in question is a road which is the only means of access to appellants’ property. It is located on property which appellee lives on and owns. Problems arose over this easement when appellants gave various “social invitees” permission to go on their property but did not accompany them. Testimony at trial indicated that when various “invitees” arrived, appellee told them that they were trespassing and ordered them off the property. Appellee testified he did this because he understood the 1977 order to mean that social invitees could come on the property only if appellants were with them. Appellee testified that he checked on anybody that visited the property even when it was dark. “When they make the turnaround, make the complete turnaround and come out I’d check them. That’s my business.” Relatives of appellants who were checking on the property for appellants testified that shortly after they drove up to the property, appellee walked over and told them they were trespassing and threatened to have them arrested if they came back. A prospective purchaser of the property testified that appellee told him that his son could use the property only if he [the buyer] were there, which was the main reason he decided not to purchase the property.
Appellants argue that the chancellor’s ruling which required appellants’ social invitees to first report to appellee and to furnish him with written proof that they were in fact social invitees unduly restricted their right to the use of their easement. We agree. When an easement exists, the rights of both parties are reciprocal, and respective owners must use the easement in a manner that will not interfere with the other’s rights to utilization and enjoyment of the property. Davis v. Arkansas Louisiana Gas Co., 248 Ark. 881, 454 S.W.2d 331 (1970). RESTATEMENT OF PROPERTY, § 481 (1944) states:
As the extent of the easement becomes more difficult to discover, the relations between the owner of it and the possessor of the servient tenement become increasingly subject to the governing principle that neither shall unreasonably interfere with the use of the land by the other. .. .The determination as to what constitutes an unreasonable interference on the part of the possessor of the servient tenement with the use of the land by the owner of the easement depends primarily upon a consideration of the relative advantage to him of his desired use and the disadvantage to the owner of the easement.
Here, the disadvantage caused to appellants by requiring either their presence or their written permission before social invitees can use the easement is greater than any advantage appellee might gain by being allowed to stop and check all unaccompanied social invitees. Therefore, it was error for the chancellor, to place such restrictions on appellants’ easement. Appellants and their social invitees must be allowed unrestricted use of the easement without interference by appellee.
Appellants also argue that the trial court erred in dismissing their prayer for damages for interference with prospective contract. Testimony at trial revealed that appellants had put the property up for sale and had at least one prospective purchaser who was seriously considering buying the property until he talked with appellee concerning the easement. Although we recognized in Mason v. Funderburk, 247 Ark. 521, 446 S.W.2d 543 (1969) that damages can be recovered for interference with a prospective contract, appellants failed to prove the necessary elements of damage. The only proof going to the element of damage was that appellants were asking $9,500 for the tract and that the prospective purchaser might have paid $8,000 for it. There was no proof of what appellants had paid for the tract or what its fair market value was, and, as a result, no proof of the loss of a prospective profit. See RESTATEMENT OF TORTS, § 774 A (1979). Therefore, the trial court did not err in dismissing the damage portion of appellants’ complaint.
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Robert H. Dudley, Justice.
Rebecca Strickland was killed in a Woodruff County vehicle accident on January 20, 1978. On December 22, 1980, her estate filed a lawsuit against; (1) Conrad Leon Smith, the driver of the car in which she was a passenger, the appellant here; (2) the owner of that car; and (3) Dale Edwards, the driver of the other vehicle, the appellee here. The plaintiff obtained valid personal service on all of the defendants with appellee Dale Edwards receiving at his correct address in Missouri a copy of the complaint and warning order. Both appellant Smith and appellee Edwards answered the plaintiff’s complaint.
The basis of this appeal, however, is a cross-complaint filed by appellant Smith against appellee Edwards. Appellant filed the cross-complaint against appellee on January 19, 1981, one day before the action was barred by the statute of limitations. Appellant caused a summons to be directed to the sheriff of Clay County who promptly reported to appellant’s counsel that appellee had moved out of the state. The attorney representing appellant on his cross-complaint then filed an affidavit for a warning order alleging that, after diligent inquiry, he was unable to locate the cross-defendant. Appellant then attempted to obtain constructive service under ARCP Rule 4 (f). Eight months later, when appellee first learned of the cross-complaint, he immediately filed a motion to dismiss. He alleged that as a result of lack of proper service a cause of action on the cross-complaint was not commenced within the period of limitations. The trial court dismissed the cross-complaint. We affirm. This case was certified to the Supreme Court by the Court of Appeals pursuant to Rule 29 (1) (c) since it requires an interpretation of part of the rules oh summons and service, ARCP Rules 3 and 4.
Appellant’s cross-complaint was filed within the period of limitations by one day but was not properly commenced within this period. ARCP Rule 3 is the rule which governs the issue of whether the action was commenced within the period of limitations. It provides:
COMMENCEMENT OF ACTION — A civil action is commenced by filing a complaint with the clerk of the proper court who shall note thereon the precise date and time of filing; provided, that an action shall not be deemed to have been commenced as to any defendant not served with process in accordance with these rules within sixty (60) days of the filing of the complaint, unless within that time the person filing the complaint has made an effort, that is noted of record in the clerk’s office, to obtain service by a different method provided for in Rule 4. In no event shall the time for obtaining service be extended beyond ninety (90) days without leave of court and for good cause shown.
No leave of court was obtained extending the time of service beyond 90 days. Therefore, in order to commence his cross-complaint within the period of limitations the appellant had a maximum of 90 days from the filing of the complaint in which to complete service of process. The appellee, who was the cross-defendant, resided outside this state at all material times and service by actual notice was not had upon him by any one of the authorized methods. See ARCP Rule 4 (e) (1), (2), (3), (4) and (5). Instead, appellant sought to have service by constructive notice. ARCP Rule 4 (f), the rule governing constructive service, provides:
Service Upon Defendant Whose Identity or Whereabouts Is Unknown: Where it appears by the affidavit of a party or his attorney that after diligent inquiry, the identity or whereabouts of a defendant remains unknown, service shall be by warning order issued by the clerk and published weekly for four (4) consecutive weeks in a newspaper having general circulation in a county wherein the action is filed and by mailing a copy of the complaint and warning order to such defendant at his last known address by any form of mail requiring a signed receipt.
This rule permits constructive service by warning order only if the whereabouts of the defendant is unknown “after diligent inquiry.” The affidavit signed by appellant’s attorney recites the standard phrase that the location of appellant was unknown “after a diligent and reasonable inquiry.” A mere recitation, however, is not enough. As Comment 12 to Rule 4 states:
The burden is on the party attempting service by publication to attempt to locate the missing or unknown defendant. Such party or his attorney is required to demonstrate to the court, by affidavit or otherwise, that after diligent inquiry, the defendant’s identity or whereabouts remains unknown.
The trial court’s finding that appellant did not make a diligent search is supported by the evidence and is not clearly erroneous. ARCP Rule 52; Alley v. Rodgers, 269 Ark. 262, 599 S.W.2d 739 (1980). The proof below was that the attorney ad litem on the original complaint located appellee merely by telephoning one of the original plaintiff’s attorneys. Appellant did not contact the same attorney. The report of the attorney ad litem on the original complaint filed on March 9, 1981 contained appellee’s correct address in Missouri. Appellant did not utilize the information in order to locate appellee and give him actual notice. The accident report, which appellant’s attorneys possessed, recited appellee’s Missouri driver’s license number. His Missouri address was written on his driver’s license, which was on file with the Missouri Department of Revenue. No effort was made to obtain the appellee’s address through the revenue department. The accident report contained the name and location of appellee’s employer. No inquiry of appellee’s address was made of the employer. Moreover, appellant’s attorney received a copy of appellee’s answer to the plaintiff’s original complaint on March 16, 1981, which was well within the 90 days allowed Smith for commencing his action on the cross-complaint under Rule 3. At that time, appellant could have located appellee by simply inquiring of appellee’s attorney of record. The proof does not reflect such an inquiry. We affirm the trial court’s holding that appellant did not make a diligent inquiry to locate the appellee and cause him to be served in a manner giving actual notice. Since service with actual notice was not completed within 90 days from the date of filing, no extension of time for that type of service was obtained, and no diligent effort was made to locate appellee in order to give him actual notice, the action was not commenced within the period of time allowed by the statute of limitations. Rules 3, 4 (e) and 4 (f).
Appellant next contends that his cross-complaint should not have been dismissed because appellee in fact knew about the filing of the cross-complaint. We find no merit in the argument. It has long been the law in Arkansas that a cross-claim constitutes a separate and distinct cause of action. In order to give the court personal jurisdiction over the cross-defendant it is essential to have service of process on the cross-defendant even when, as here, the cross-defendant is also an original defendant. Moore v. Owens, 268 Ark. 324, 597 S.W.2d 65 (1980); Miller v. Mattison, 105 Ark. 201, 150 S.W. 710 (1912) citing Pillow v. Sentelle, 49 Ark. 430, 5 S.W. 783 (1887); Ringo v. Woodruff, 43 Ark. 469 (1884). Service of process or a waiver of that service is necessary in order to comply with the Due Process requirements of the United States Constitution. Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972).
Finally, appellant argues that since the allegations of plaintiff’s complaint are essentially the same as the allegations contained in the cross-complaint, appellee’s answer to the complaint should be deemed an answer to appellant’s cross-complaint. Appellant relies on Firestone Tire & Rubber Co. v. Little, 269 Ark. 636, 599 S.W.2d 756 (Ark. App. 1980) and Southland Mobile Home Corp. v. Winders, 262 Ark. 693, 561 S.W.2d 281 (1978). In both cases, a co-defendant was granted relief from a default judgment on the theory that the answer of a co-defendant will inure to the benefit of the non-answering co-defendant if tha answer states a defense that is common to both defendants. These cases are based on the Common Defense Doctrine which originated in England around 1600. See Firestone Tire & Rubber Co. v. Little: Overextension of the Common Defense Doctrine, 35 Ark. L. Rev. 328 (1982). The rationale of these cases is not applicable to a situation where the defendant fails to answer a cross-complaint filed against him. Unlike co-defendants defending against a common claim, the original plaintiff and the cross-complainant are separate parties stating separate and distinct causes of action. The cross-complainant and the cross-defendant are adverse parties rather than defendants with common interests. Therefore, the answer filed by appellant on the plaintiff’s complaint did not constitute a general appearance by appellee on appellant’s cross-complaint.
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George Rose Smith, Justice.
The appellant, aged 25, was convicted of three offenses and sentenced to consecutive terms of 22 years for aggravated robbery and 23 years for attempted rape and to a concurrent term of 11 years for burglary. The appellant does not question the sufficiency of the State’s proof that on the evening of November 19,1981, a masked man, armed with a butcher knife, broke into the home of two elderly sisters and committed the crimes in question. The only argument for reversal is that the identity of the appellant as the intruder was not adequately established.
Viewing the testimony most favorably to the appellee, as we must, we find that the matter of identity was a question of fact for the jury. The two sisters had known Charles Jefferson for as long as ten or twelve years, because his grandmother had lived next door to them in North Little Rock for many years. One of them had seen him two or three days before the evening in question and testified that he was then wearing the same clothes he had on that evening. The other sister had seen him earlier that day. They both recognized him at once as the intruder, though he was wearing a mask or scarf over his face. One said she knew him by his voice, which she had heard frequently, the other by his movements and build. One of them called the police right after the departure of the intruder, who had stayed about 45 minutes. They testified that later that night they told the investigating officers that Charles Jefferson had been the robber. At the trial they were positive in their identification. There were minor uncertainties in the State’s proof, such as the exact time the masked man entered the house and whether the two women identified him by name that evening or the next morning. Such uncertainties, however, were matters of credibility to be determined by the jury, whose decision is conclusive. There is ample substantial evidence to support the verdict, which ends our inquiry on appeal.
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Richard B. Adkisson, Chief Justice.
The Crittenden County Chancery Court held that appellant, James Smith, had no interest in property which had been executed upon by appellee, Fidelity & Deposit Company of Maryland. On appeal we affirm.
Fidelity had an unsatisfied judgment against James Browder for $24,303.11. James Browder was the owner of the Jewelry Nook at 500 East Broadway in West Memphis. On September 10, 1981, appellant allegedly bought $5,000 worth of used jewelry from the Jewelry Nook. Appellant obtained a receipt from James Browder which indicated that appellant had paid cash dollars for “79 Rec. dia, wed. & men rings,” and “12 Gold necklaces.” Appellant did not take possession of the merchandise at the time of sale. And, even though he testified that the jewelry was tagged by a Jewelry Nook employee and that a list of the jewelry was made at that time, appellant was unable to produce this list at trial.
Appellant testified that around the first of November he took possession of the jewelry he had bought and began doing business at Browder’s Jewelry Store at 526 East Broadway in West Memphis. Appellant stated that at the time the store opened, his wife wrote out a three page inventory list of the jewelry which was introduced into evidence at trial. Appellant further testified that he sold $2,000 worth of this jewelry, which he replaced with additional jewelry he purchased from James Browder around the latter part of December. No receipt for the additional jewelry was introduced at trial, although appellant testified that he kept track of the jewelry by adding it on to the end of his inventory list.
Appellant allegedly went into business with James Browder’s brother, Larry, but testimony at trial revealed that Larry had a full time job as a bus driver and that James Browder actually ran Browder’s Jewelry store. The building lease was in James Browder’s name, he signed all the checks for the store, and one witness testified that he observed things being moved from the Jewelry Nook to Browder’s Jewelry Store in October. There was also testimony to the effect that James Browder made various business arrangements for the store, including one with Delta Auction to auction off the jewelry when it became obvious that Browder’s Jewelry Store was not profitable. However, before the auction was held, Fidelity executed on its judgment against Browder, directing the sheriff to take possession of the real and personal property located at Browder’s Jewelry Store. On February 9,1982, the sheriff took possession of all the merchandise at that location, including the jewelry which appellant alleges belonged to him, and inventoried it.
The chancellor held that all the merchandise in Browder’s Jewelry Store was subject to execution, finding that it was not possible to identify appellant’s property from the evidence introduced at trial. We cannot say that this finding is clearly erroneous. The list of the jewelry that was allegedly made at the time of purchase was not introduced at trial. The $5,000 receipt which James Browder gave appellant indicates that appellant purchased 12 necklaces, yet no necklaces were listed on appellant’s inventory sheet. Nor is there any way to reconcile appellant’s inventory sheet with the inventory list prepared by the sheriff when he executed on the property. For example, rings marked “here” on appellant’s inventory sheet were apparently not there when the sheriff inventoried the property.
There was sufficient evidence from which the trial judge could have found that the purported sale of jewelry by James Browder to appellant was a subterfuge and an attempt by James Browder to avoid paying his just debts.
Affirmed. | [
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Frank Holt, Justice.
The appellant was convicted by a jury of burglary and aggravated robbery. The jury fixed his punishment, as a habitual offender, at 30 years imprisonment for the burglary and 60 years imprisonment for the aggravated robbery conviction. Three points are raised on appeal. We affirm.
The appellant first argues, through his court appointed counsel, that the trial court erred by denying him, an indigent, an independent fingerprint expert at state expense in violation of his right to due process of law. The critical testimony with respect to identification came from a fingerprint expert with the FBI, who testified that the appellant’s palm print was found on a paper bag. The robber had masked his face with a paper sack during the alleged robbery following which a paper sack was discovered in that portion of the bank where the robbery occurred. Prior to trial the appellant requested state funds to hire an independent expert to examine and evaluate the palm prints on the bag. He did not name nor list any particular expert; he did not provide the court with a list of possible experts whom he might call; he did not make a proffer of any evidence that might be adduced; and he made no suggestions as to what the cost of the expert testimony might be. He merely requested funds to pay for the attendance of an out-of-state fingerprint expert. We have held that the decision whether to provide a defendant with an unnamed fingerprint expert to rebut the state’s expert testimony is within the discretion of the trial court. Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982); see also, Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982); and Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). We find no abuse of discretion here.
The appellant next argues that the trial court erred in admitting into evidence the identification testimony of Judy Gibbs and Leon Carroll based upon their identification of him at a pretrial lineup. Gibbs was the bank employee who was held up. She did not see the assailant’s face, because he had a paper sack with eye holes over his head. She was able to describe his build and body shape. She picked the appellant out of a lineup one month after the robbery. She admitted that her identification was not positive. Carroll saw a man emerge from the bank at the approximate time of the robbery. He said that the appellant looked exactly like the man whom he saw but he could not say for certain it was he. He had also picked the appellant out of the same lineup. Appellant’s argument is that this testimony was irrelevant and, even if relevant, inadmissible because its probative value was outweighed by its prejudicial effect. Ark. Stat. Ann. § 28-1001, Rules 401, 402 and 403 (Repl. 1979). However, as abstracted, the record does not reflect that these specific arguments were addressed to the trial court. They are raised for the first time on appeal. Consequently, we do not consider them. Pace v. State, 265 Ark. 712, 580 S.W.2d 689(1979).
Finally, the appellant argues that the evidence was not sufficient to support the jury verdict. It is undisputed that a burglary and robbery occurred, but the appellant contends that the identification testimony is insufficient, and there is no direct evidence placing him in the bank. Judy Gibbs, the bank employee who was the victim of the crime, testified that the assailant was of the same general build as the appellant. She picked him out of a lineup of persons similar in appearance when each man stepped forward and reiterated the words of her assailant. At the armed robber’s command, she had placed the bank money in a dirty sack, the size of a pillow case. Leon Carroll saw a man carrying a “big old sack” as he left the bank at the approximate time of the crime. The appellant looked exactly like the man whom he saw. He, as did Gibbs, had picked appellant from the lineup. It is true that neither witness was certain in their identification. The state, however, adduced evidence that a paper sack, which had not been in the manager’s office where the robbery occurred the day before the crime, was found there following the crime. The appellant’s palm print was found on this sack. Certainly, this evidence is sufficiently substantial to support the jury’s verdict. Brown v. State, 278 Ark. 604, 648 S. W.2d 67 (1983); and Smith v. State, 277 Ark. 64, 639 S.W.2d 348(1982).
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Robert H. Dudley, Justice.
The primary issue in this case involves a sanction imposed against the appellant insurance company for failing to obey an order compelling discovery.
Edward and Rachael Carr borrowed money from the appellee Bank of Wilson. The bank contends the Carrs secured the debt with a real estate mortgage on a building in Joiner, but this fact is disputed by the appellant insurance company. The Carrs sold the building to the Conways and, as security for the purchase price, the Conways gave back to the Carrs a deed of trust on the building. The Conways insured the building with appellant Sphere Drake Insurance Company. The policy of insurance named the bank as an insured mortgagee. Later, the Carrs assigned to the bank the deed of trust which they had received from the Conways. The building burned, but the insurance company refused to pay the loss because, it contended, the building had been deliberately burned by the Carrs and the Conways. The bank responded that, as mortgagee, it was entitled to recover regardless of whether arson had been committed. The insurance company still refused to pay and contended that the bank did not have a mortgage from the Carrs; that the only security the bank had on the building was the assignment of the deed of trust given by the Conways to the Carrs and, that being so, the bank would have only the same rights as the assignors, the Carrs. The bank filed suit against the insurance company and prayed for damages in an amount equal to the amount of the Carr’s debt.
Numerous pleadings were filed, but only a few are germane to the resolution of the arguments on appeal. Among them are a pleading by the insurance company alleging that it did not owe any money under the terms of the policy, but that if it did owe, it owed only for the value of the building insured and not for the amount owed by the Carrs. The next relevant pleading is a set of four (4) interrogatories which the bank propounded to the insurance company. The interrogatories were filed and served on June 15, 1990, and asked the names of witnesses and exhibits to be used at trial. At that time, the insurance company’s attorneys were having a difficult time communicating with their client, a London, England firm, and they did not want to devote more time to the case if they were not going to be paid. As a result, they did not answer the interrogatories.
The insurance company’s attorneys told the bank’s attorneys about their problem. On August 13, 1990, one of the bank’s attorneys wrote the insurance company’s attorneys and stated:
I have gone ahead and prepared and filed a Motion To Compel Answers To Interrogatories, and perhaps this will help you in getting your client off center. As I understand it, this case is scheduled for trial beginning the first week in November, and we would like to go ahead and complete our discovery, but cannot do so until we know the names and addresses of your witnesses and documents which you intend to use at the trial of this case.
Over a month later, on September 26, 1990, the trial court entered an order compelling answers to the interrogatories. The last part of the order provides that the insurance company shall answer the interrogatories “and deliver a copy of said answers to the plaintiff’s [bank’s] attorney within ten (10) days after this date and, upon their failure to so answer, judgment shall be enteredfor the plaintiff as prayedfor in its complaint.” (Emphasis added.) The order was served on the insurance company’s attorneys.
There is some dispute about what happened next, but it is undisputed that the interrogatories were not answered within the ten-day limit, and no extension was asked of the trial court. The insurance company’s lawyers contend they told the bank’s attorneys that they were not going to answer and that the bank’s attorneys never indicated that was unacceptable. The bank’s lawyers deny such a conversation. Both sets of attorneys agree that the insurance company’s attorneys made an offer of settlement during this period.
On October 15, 1990, the bank’s principal trial attorney attempted to call the insurance company’s principal trial attorney, but was unable to reach him. It is undisputed that the bank’s attorney asked the secretary of the insurance company’s attorney to give the attorney the message: “Bank unwilling to yield.”
The next day, October 16, the bank’s trial attorney telefaxed a message to the insurance company’s trial attorney stating that the $10,000 offer of settlement was declined as a bad faith offer because the building had a value of at least $15,000 or $16,000, and that he was going to seek the sanction of a judgment for the insurance company’s failure to answer the interrogatories. Later that same day the trial court entered an order of default judgment as to liability and damages. The trial court set damages at the amount prayed, $31,724.47, which was the amount of the Carr’s debt, plus 12% penalty, attorney’s fees, and costs. The insurance company subsequently answered the interrogatories and moved to have the default judgment set aside. The trial court refused to set aside the default judgment.
The insurance company appeals and makes two (2) arguments. First, it argues that the trial court erred in refusing to set aside the default judgment. That argument is without merit as to liability. Second, it argues that the trial court erred in granting the default as to damages. That argument has merit.
ARCP Rule 37, entitled “Failure to Make Discovery; Sanctions,” provides that after a trial court issues an order to compelí an answer to an interrogatory, and the party still fails to comply with the trial court’s order, the trial court may enter a sanction against the offending party by, among other things, “rendering a default judgment against the disobedient party.” ARCP Rule 37(b)(2)(C).
ARCP Rule 6(b)(2) would have given the trial court the authority to enlarge the time for the insurance company to answer if it had asked for it. However, it did not ask the trial court to enlarge the time and, instead, filed nothing until after the default judgment was entered.
ARCP Rule 5 5 (c) authorizes a trial court to set aside a default judgment “upon a showing of excusable neglect, unavoidable casualty, or other just cause.” The appellant insurance company argues that such unavoidable casualty and just cause existed in this case. Its argument is based upon its attorneys’ version of the alleged conversations between attorneys. In support of its argument, it cites such cases as Foote v. Jitney Jungle, Inc., 283 Ark. 103, 671 S.W.2d 186 (1984). In that case, a writ of garnishment was served on the garnishee. One of the garnishee’s officers immediately phoned the attorney who had caused the writ to issue and said there might be some difficulty in filing an answer by the date it was due. The attorney replied: “Don’t worry. File it whenever you obtain the information.” Two (2) days after the garnishee’s answer was due the attorney for the creditor took a default judgment. Three (3) days after the due date the answer was filed. The trial court set aside the default judgment. We affirmed. See also Martin v. Martin, 241 Ark. 9, 405 S.W.2d 934 (1966). Those cases are not applicable to the case at bar because, in each of them, attorneys or parties had a valid misunderstanding about when something was to be filed. Here, there could be no such valid misunderstanding, because the offending party was given a direct court order telling it when to answer. Even if the insurance company’s attorneys’ version of the facts should be correct, and the bank’s attorneys did not indicate that the insurance company’s failure to file responses was unacceptable to them, it would not matter. The bank’s attorneys did not have the authority to authorize the insurance company to flaunt the order of the trial court. In fact, it is hard for us to imagine many situations where the refusal to comply with a direct order of a court would come within “excusable neglect, ... or other just cause.” Accordingly, we affirm the trial court’s refusal to set aside the sanction of a default judgment as to liability.
However, the default judgment should have been as to liability only, that is, it should have provided only that the insurance company was liable to the bank on the insurance policy. But, the default judgment went further and assessed damages.
The bank urges us to affirm the damages fixed in the default judgment, $31,724.47, plus 12% penalty, attorneys’ fees and costs, because, it argues, they are not damages, but instead, are a monetary sanction imposed on the insurance company for its failure to respond to the interrogatories. The bank argues that our holding in Helton v. Fuller, 299 Ark. 341, 772 S.W.2d 343 (1989) authorizes such a sanction. We cannot affirm a damage award on such a basis. ARCP Rule 37(b)(2)(C) does not provide authority for trial courts to award monetary sanctions of the kind awarded here, and this was expressly mentioned in both the majority and concurring opinions in Helton v. Fuller, supra. The award in that case was affirmed on the basis of an award of expenses incurred for failure to appear for a deposition. See Rule 37(a)(4). Subsection (b)(2)(D) of the same rule provides that, in addition to the sanctions listed in subsection (C), the trial court may hold a disobedient party in contempt and impose the appropriate punishment, but that was not the case here. The monetary award granted in this case was clearly the amount of damages prayed, and there is no authority for such a sanction when the damages are unliquidated.
Accordingly, we affirm the granting of the default judgment as to liability, but reverse the granting of default judgment as to damages, and remand for proceedings consistent with this opinion.
Brown, J., not participating. | [
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Jack Holt, Jr., Chief Justice.
This case involves an assessment of 1987 ad valorem taxes on properties of the Arkansas Electric Cooperative Corporation (Cooperative) by the Tax Division of the Arkansas Public Service Commission. After the Tax Division refused the Cooperative’s request to lower its assessment, the Cooperative filed a formal petition asking the Commission for review. An administrative law judge (ALJ), sitting by designation of the Commission, conducted a public hearing and affirmed the Tax Division’s assessment. The assessment was reaffirmed by the full Commission. The Cooperative subsequently appealed to the Pulaski County Circuit Court for relief. The trial court found that the Commission’s decision that the Cooperative’s property had been properly valued was supported by substantial evidence in the record. Thereafter, the Cooperative appealed to the Arkansas Court of Appeals.
This case was submitted to the court for its consideration on December 20, 1990. On May 6, 1991, the court of appeals certified this appeal to us under Ark. Sup. Ct. R. 29(4)(b) as presenting a question of significant public interest. On May 25th, we refused certification and returned the case to the court of appeals.
On June 26, 1991, the Court of Appeals, by per curiam, raised on its own motion certain jurisdictional questions and ordered the parties to file supplemental briefs addressing these matters. On October 10th, the court of appeals again certified this case to our Court.
The parties, by way of their supplemental briefs, argue as to the appropriate processes for appeal from the Commission’s findings in light of Ark. Code Ann. § 23-2-423(a)(l) (1987), which provides that “[a]ny party to a proceeding before the commission aggrieved by an order issued by the commission in the proceeding may obtain a review of the order in the Court of Appeals of Arkansas . . .,” as opposed to Ark. Code Ann. § 26-24-123(a) (1987), which provides that “[a]ny taxpayer aggrieved by the action or order of the Arkansas Public Service Commission respecting the assessment or equalization of property shall have the right of appeal to the circuit court and thence to the Arkansas Supreme Court.”
These statutes are easily distinguishable, inasmuch as section 23-2-423 pertains to public utility regulatory matters and section 26-24-123 governs judicial review on Commission decisions concerning taxation matters, such as the case before us. Accordingly, the Cooperative’s appeal from the Commission to the circuit court was correct procedure.
The legislature’s placement of further appellate process in this court pursuant to section 26-24-123 was, however, inappropriate and cannot be followed to the extent that it conflicts with our per curiam opinion of February 24, 1986, where we declared that under Amendment 58 to the Arkansas Constitution, which created the court of appeals, and Rule 29 of the Rules of the Arkansas Supreme Court, we decide the appellate jurisdiction of the court of appeals, not the legislature.
We further noted that, while we respected the General Assembly’s concern to expedite decisions of an administrative agency, we would not overlook the intent of Amendment 58 and our duty as an appellate court to see that any decision was fairly and completely reviewed once. With that observation, we amended Ark. Sup. Ct. R. 29 (1) (c) and (d) to the effect that all appeals of Public Service Commission decisions should be first be made to the court of appeals subject to certain exceptions, none of which apply in this instance.
Jurisdiction of this case, then, properly lies in the court of appeals. However, we will, to avoid further delay, retain jurisdiction pursuant to Rule 29 (4) (b) since it is of significant public interest to expeditiously resolve matters of state taxation, especially where, as in this instance, school funding formulas are involved.
The Cooperative initially claims that the trial court erred in affirming the Tax Division’s refusal to consider economic and functional obsolescence in valuing and assessing the Cooperative’s property.
Arkansas Code Ann. § 26-26-1607 (1987) addresses the method of valuing property for the assessment of taxes and provides in pertinent part as follows:
(a) The valuation of the taxable property, both real and personal, of all. . . cooperatives, associations, and corporations required by law to be assessed by the Tax Division of the Arkansas Public Service Commission shall be made upon the consideration of what a clear fee simple title thereto would sell for under conditions which usually govern the sale of property of that character.
(b) The division in determining fair market value, insofar as other evidence and information in its possession does not make it appear improper or unjust for it to do so, shall ascertain and determine as nearly as it can and consider:
(1) Original cost less depreciation, replacement cost less depreciation, or reconstruction cost less depreciation. Proper consideration may be made for functional or economic obsolescence and for operation of nonprofitable facilities which necessitate regulatory body approval to eliminate;
(2) (A) The market value of all outstanding capital stock and funded debt, excluding current and deferred liabilities, except accumulated deferred income taxes, investment tax credits, and items associated therewith. A premium or discount to capital stock may be considered above or below the current market price where evidence warrants.
(B) In cases where the outstanding capital stock is not traded or is not capable of reasonably accurate determination, book values may be substituted;
(3) (A)(i) The utility operating income after deduction of all actual income taxes paid, capitalized in the manner and at such rates as shall be just and reasonable, but in no event shall the capitalization rate be less than six percent (6%). The deduction from income of deferred income taxes, investment tax credits, and items associated therewith is specifically prohibited for purposes of this subsection.
(ii) The utility operating income after the deduction of all income tax expense capitalized in a manner which recognizes the utility’s ability to defer income taxes, utilizing accumulated deferred income taxes, investment tax credits, and items associated therewith as cost-free debt in the capital structure to determine the capitalization rate.
(B) The utility operating income to be capitalized should be determined by reference to the company’s historical income stream appropriately weighted, with consideration to the future income stream.
* * * *
(4) Such other information as evidence to value as may be obtained that will enable the division to determine the fair market value of the property of the companies. . . .
In Tuthill v. Arkansas County Equalization Bd., 303 Ark. 387, 797 S.W.2d 439 (1990), we noted that, because of the separation of powers doctrine, it is not within the province of state courts to assess property. We can only review the assessments and reverse them and send them back to the executive department when they are clearly erroneous, manifestly excessive, or confiscatory. Furthermore, we will reverse property assessments only in the “most exceptional cases,” and the burden of proof is on the protestant to show that the assessment is manifestly excessive or clearly erroneous or confiscatory. Finally, in reviewing a finding of fact by a trial judge, we view the evidence, and all reasonable inferences therefrom, in the light most favorable to the appellee.
Section 26-26-1607 provides, in essence, that three valuation methods are available for the assessment of property valuation: 1) the book value method, 2) the stock and debt method, and 3) the income method. Not only did the Cooperative effectively concede, in this case, that the stock and debt method and the income method were inappropriate in valuing its assets, but one of its own witnesses testified that the book value method was “the method which [the Cooperative] believes is appropriate for a utility cooperative.”
Consequently, we must decide whether the Tax Division’s application of the book value method pursuant to section 26-26-1607(b)(1) was clearly erroneous.
Although section 26-26-1607(b)(1) provides that “[p]roper consideration may be made for functional or economic obsolescence (emphasis added),” the Cooperative asserts that its principal argument under this point of error “is that the Tax Division did not specifically consider obsolescence at all.”
Economic obsolescence, as used with respect to valuation of property for taxation, is “a loss of value brought about by conditions that environ a structure such as a declining location or down-grading of a neighborhood resulting in reduced business volume.” Black’s Law Dictionary (5th ed. 1979).
Functional obsolescence is defined as the loss of value due to inherent deficiencies within the property (the need for replacement because a structure or equipment has become inefficient or out-moded because of improvements developed since its original construction or production.) Black’s Law Dictionary (5th ed. 1979).
In determining whether the word “may” is merely permissive or is mandatory, not only the language of the act, but the circumstances surrounding its passage and the object in view, must be considered. Washington County v. Davis, 162 Ark. 335, 258 S.W. 324 (1924).
We note that prior to the passage of Act 9 of the Second Extraordinary Session of 1980, subdivision (b)(1) provided that “proper allowance and deduction shall be made for functional or economic obsolescence. . . .” (Emphasis added.) The 1980 amendment thus changed the statute from mandatory (shall) to directory (may), and it is clear that the legislature intended to invest the Tax Division with the option and discretion of considering economic and functional obsolescence in valuing taxable property. See generally Gregory v. Colvin, 235 Ark. 1007, 363 S.W.2d 539 (1963).
Given the Tax Division’s discretion in considering functional or economic obsolescence in the determination of the fair market value of the Cooperative’s property, the Tax Division nevertheless contends that it does consider obsolescence in valuating the Cooperative’s property because an implicit component of the depreciation subtracted from the original cost is obsolescence.
The Tax Division introduced available sales data statistics indicating that electric generating facilities tended to sell at approximately “net book” value. This evidence showed that in 18 of 24 sales of electric utility facilities from 1974 through 1981, the price paid for the facility was between 100 % and 108 % of “net book” value. The Cooperative challenged these statistics on the basis that they were too old to reflect the current market value of electric utility facilities; yet, it failed to produce any evidence as to more recent sales or that electric utility facilities are currently selling for less than “net book” value.
Additionally, the fact that the Tax Division has used the book value method and has not employed the income or stock and debt methods does not result in a denial of equal protection. “That two methods are used to assess property in the same class is, without more, of no constitutional moment.” Allegheny Pittsburgh Coal v. Webster County, 488 U.S. 336 (1989). The General Assembly’s designation of optional accepted accounting methodology authorized the Tax Division to pursue or apply one of the options. The Tax Division offered reasons supporting its choice, and the Cooperative conceded that the book value method was the appropriate valuation method; accordingly, the Cooperative has failed to show that section 26-26-1607 is invalid either on its face or as applied in this case.
Consequently, we cannot say that the Tax Division’s assessment of the Cooperative’s property is clearly erroneous.
The Cooperative next asserts that the trial court erred in affirming the Tax Division’s refusal to consider certain of its oil and gas fired plants as economically and functionally obsolete. The Tax Division valued these plants at $17.5 million in 1987; at that time, the plants were in extended cold standby status, meaning that the plants were taken “off-line” and the mechanical parts susceptible to corrosion or rust were placed into a gel compound.
Arkansas Code Ann. § 26-26-1602(a) (1987) addresses the reporting of property subject to assessment and provides in pertinent part as follows:
(a) For purposes of this subchapter, property is used or held for use in the operation of a company as such if it is owned or controlled by a utility or carrier and is being utilized, is capable of utilization, in the operation of a utility or carrier, or is being constructed for future utilization in the utility or carrier operation. . . .
(Emphasis added.)
Tellingly, the Cooperative states that these plants, in cold standby status, are “significantly reduced in value at this time,” but that it is currently considering restoring one of the three plants. Apparently, two major considerations resulting in taking these three plants off-line were the regional surplus production capacity and less-than-anticipated demand for electricity.
The Commission determined that the three plants were assessable property pursuant to section 26-26-1602(a) and stated:
While these plants are admittedly not being used at the present time, it is obvious that they are capable of being used. . . . [the Cooperative] obviously has contemplated that some time in the future, the plants may again be needed and placed back in operation. The fact that some restoration or modification of the plants may be necessary to take the plants out of “cold-standby” status and to place the plants back in operation does not support a conclusion that the plants are not capable of utilization.
We also find it significant that these three plants are currently included in the Cooperative’s rate base at their “net book” value and, as a consequence, that the Cooperative is presently recovering in authorized rates all of the expenses associated with the plants prior to their being placed in cold standby status, as well as the ad valorem taxes associated with the three plants.
These plants remain capable of generating electricity subject to the management decisions of the Cooperative; indeed, the Cooperative continues to voluntarily maintain these plants as assets.
In sum, these three plants are capable of utilization and are earning a return based on their pre-cold standby status. We, again, cannot say that the Tax Division’s assessment was clearly erroneous.
Affirmed. | [
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Tom Glaze, Justice.
On May 22, 1986, appellee brought suit against appellants seeking, among other things, to set aside certain deeds and to quiet title in the mineral estate described in the deeds. After appellants filed their answer, little, and then no, activity occurred in the lawsuit, so the trial court dismissed the case for want of prosecution on January 2,1990, pursuant to the court’s standing order dated January 2, 1987. The trial court, however, ordered appellee’s case reinstated on January 25,1990. The appellants then moved to vacate the restatement order pursuant to ARCP 41(b), claiming the dismissal should have been with prejudice because the dismissal had been appellee’s second. The trial court denied appellants’ motion and appellants bring this appeal.
We do not reach appellants’ Rule 41(b) issue because the trial court’s order denying appellants’ motion to vacate the reinstatement of appellant’s case is not a final judgment or order from which an appeal may be taken. Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure. For a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Roberts Enterprises, Inc. v. Arkansas Highway Comm’n, 277 Ark. 25, 638 S.W.2d 675 (1982); see also 4 C.J.S. Appeal & Error § 121(c) (1957) (which provides, generally, an appeal will not lie from an order setting aside an order of dismissal.) Here, the trial court’s order makes no such disposition of the parties’ case, and in fact, retained jurisdiction over the parties and issues in controversy for future adjudication.
Because the trial court’s order is not a final one from which an appeal may be taken, we dismiss appellants’ appeal. | [
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Robert L. Brown, Justice.
The primary issue before us is whether a 119-acre farm given to the appellant, George A. Hale, Jr., by his parents during his marriage to the appellee, Cheryl J. Hale, and then used as collateral for a consolidated debt loan to both parties, constituted property that could be sold to satisfy all marital debt. The chancellor held that it could be, and the appellant appeals on grounds that this was error. We affirm the chancellor’s decision in part, but reverse and remand on other grounds.
The parties married in 1965, while both were attending college, and remained married for twenty-five years. Throughout their marriage, both husband and wife worked with the exception of about 2 '/2 years when Cheryl Hale obtained a higher degree in her profession of nursing. In 1975 the Hales moved to Mississippi County, where George Hale bought a 39-acre farm near his family’s farm. During their marriage George Hale farmed, and his parents, as part of their estate plan, made various gifts to him, including a 119-acre tract of farm land which is the subject of this appeal, an undivided one-third interest in 163.2 acres of farm land, and residential property consisting of 1.3 acres. They also made a joint gift to the Hales which consisted of 3.1 acres. The Hales took title to the 3.1 acres as tenants by the entirety, and built their home on this land.
In 1980, George Hale experienced difficulties in his farming operation due to a drought, and in 1985 he sold his one-third interest in the 163.2 acres for $44,000 and applied that money to pay joint debts. In 1986, he was forced to leave farming altogether. In September 1987, the parties consolidated their debts into a $170,000 loan from Consolidated Federal Savings & Loan and used the 3.1 acres held as tenants by the entirety, the 39 acres that George Hale purchased during their marriage, and George Hale’s 119-acre gift property as collateral for the loan. In March 1989, Cheryl Hale left her husband and ceased contributing to payment of the joint debt. George Hale continued to make the debt payments until August 1990, when his tenants vacated the property and the rental income stopped.
Cheryl Hale filed for divorce on January 17,1990, and the divorce was granted on December 21, 1990. As part of the proceedings, the chancellor had all of the real property appraised, including marital and non-marital property, and the property held as tenants by the entirety, and ordered that the property be sold to satisfy the parties’ consolidated debt loan and other marital debts. The chancellor further apportioned marital and non-marital property ánd ordered that the parties share equally in the surplus apportioned to marital property and that George Hale take all of the surplus apportioned to his non-marital property. The 3.1 acres on which the home was built, which was held by the parties as tenants by the entirety, was classified as marital property. The 119-acre gift property was classified as George Hale’s non-marital property. The chancellor’s order established the following procedure for satisfying marital debt and disbursing surplus funds:
14. The Court, therefore, finds and concludes:
(1) The 1.3-acre tract given to Defendant in 1976 is declared to be non-marital and of no consequence in this decision;
(2) The 119-acre tract given to Defendant in 1969 is also found and declared to be non-marital; however, it will be sold in order to retire the debts of the parties;
(3) The 39-acre tract is declared to be marital property and will be sold to pay marital debts;
(4) The 3.1-acre tract and home is declared to be marital property and will be sold to pay marital debts;
16. The Court further finds that. . . if there is any deficit owed to any of the creditors described hereinabove after the sale of the property described herein, the Court declares that both parties are equally responsible for the debts; this is not a declaration changing the status of the creditors; it is simply a declaration charging both of these parties with the payment of the debts; if there is a surplus after the payment of said debts, then said surplus will be divided between the parties by utilization of the appraisals; the home was appraised for $92,500.00, and it is marital property; the 39 acres was appraised for $40,950.00, and it is marital property; the 119 acres was appraised for $124,950.00, and it is non-marital; the total value of all real property shown by appraisals is $258,400.00, and of this amount, $133,450.00 is marital, representing approximately fifty-two percent (52%) of the total, and $124,950.00 is non-marital, representing approximately forty-eight percent (48 %) of the total; therefore, as to any surplus after sale of the property and payment of all debts, the parties will equally share fifty-two percent (52%) of any surplus, and the Defendant will be entitled to receive as his sole property forty-eight percent (48%) of any surplus. . . .
It is from this order as it applies to the 119 acres that the appellant raises this appeal.
We turn first to the statute that discusses division of marital and non-marital property.
(a) At the time a divorce decree is entered:
(1) (A) All marital property shall be distributed one-half O/2) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration:
(i) The length of the marriage;
(ii) Age, health, and station in life of the parties;
(iii) Occupation of the parties;
(iv) Amount and sources of income;
(v) Vocational skills;
(vi) Employability;
(vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;
(viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and
(ix) The federal income tax consequences of the court’s division of property.
(B) When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in the order entered in the matter.
(2) All other property shall be returned to the party who owned it prior to the marriage unless the court shall make some other division that the court deems equitable taking into consideration those factors enumerated in subdivision (a)(1), in which event the court must state in writing its basis and reasons for not returning the property to the party who owned it at the time of the marriage.
(b) For the purpose of this section, “marital property” means all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired prior to marriage, or by gift, or by bequest, or by devise, or by descent;
Ark. Code Ann. § 9-12-315(a)(1) and (2), (b) (Supp. 1991). (Emphasis ours.)
George Hale argues that though the property division statute gives the chancellor latitude and discretion in reaching an equitable result, this pertains only to the division of marital property or property acquired by a party prior to marriage and has no bearing on gifts acquired during marriage. The 119 acres were clearly acquired by the appellant by gift during marriage, and the chancellor correctly found that the 119 acres constituted non-marital property. But he further ruled that the acreage should be sold in satisfaction of the consolidated debt and other marital debts as well.
The issue before us, then, is whether the chancellor had the discretion to order the sale of this non-marital property to satisfy all marital debts. We hold that his discretion was properly exercised regarding satisfaction of the consolidated debt loan but not with respect to other marital debts.
The appellant is correct that Ark. Code Ann. § 9-12-315(a)(2) provides for an equitable division of non-marital property given prior to marriage but does not make the same provision for gift property received during marriage. Were we to hold that the statute authorized a chancellor to divide non-marital gift property, we would be adding words to the statute that simply are not there. In prior cases, we have specifically refused to expand the property-division statute judicially to authorize the chancellor to divide non-marital property acquired by gift during marriage. Rather, we have limited the discretion of the chancellor under the statute to the division of property acquired prior to marriage, as the statute provides. See Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983 ); see also Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 443 (1990); Yockey v. Yockey, 25 Ark. App. 321, 758 S.W.2d 421 (1988). We have previously held that property received by descent, apparently during marriage, is not subject to division in a divorce action. See Farris v. Farris, 287 Ark. 479, 700 S.W.2d 371 (1985). Since property acquired by descent and property acquired by gift are both set out as exceptions to marital property in § 9-12-315(b), George Hale argues that the Farris holding should govern the case before us.
As stated, we agree with the appellant that the statute does not authorize a chancellor to divide gift property received by one spouse during marriage. Nevertheless, in this case George Hale took his 119 acres and volunteered it as security for the consoldiated debt loan made by Commonwealth Federal. The chancellor recognized this agreement in his order when he stated that the case involves “the equitable distribution of marital debts and the utilization of marital as well as non-marital property given as collateral for some or all of those debts.” (Emphasis ours.) Although he did not have statutory authority to divide this gift property, it was appropriate for the chancellor to consider this mortgage agreement when considering payment of the marital debt owed to Commonwealth Federal. See Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982); see also Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311 (1967). Because of the mortgage agreement, we affirm the chancellor’s order to apply the 119 acres to satisfy the Commonwealth Federal debt.
The same does not hold true for the chancellor’s use of the 119 acres to pay any other marital debts. To the extent that the chancellor’s formula provides for the sale of this property to satisfy other marital debts, we reverse on the basis that § 9-12-315 does not authorize the use of gift property received during marriage to be used for payment of such debts.
George Hale further challenges the chancellor’s formula in that it contemplates paying Cheryl Hale 26% of any surplus funds after payment of the marital debts. He is correct that the chancellor’s formula provides for a sale of all marital and non-marital property to satisfy these debts, and that after payment the parties would share in any surplus. The chancellor determined that George Hale should receive 48 % of surplus funds which was his distribution based on his non-marital property, and that he and Cheryl Hale should divide 52% of any surplus which would be the funds apportioned to marital property. Cheryl Hale would, therefore, be entitled to 26 % of any surplus as her share of the surplus due to marital property. It is the potential that Cheryl Hale might share in the surplus generated from the sale of his non-marital property that George Hale finds particularly objectionable.
The court’s order assigns the 119 acres an appraised value of $124,950; the 39 acres a value of $40,950; and the 3.1 acres, which was the homestead, a value of $92,500. The consolidated debt loan approximated $ 173,000 at time of divorce. We can conceive of a situation where the sale of the 119 acres might occasion surplus funds in which Cheryl Hale would have a 26 % interest. For example, were the 39 acres and 3.1 acres sold first to satisfy the consolidated debt loan, that would result in a substantial part of the proceeds from the sale of the 119 acres being distributed under the formula as surplus. Cheryl Hale, therefore, would receive 26 % of those proceeds, which as non-marital property, should go exclusively to George Hale. George Hale only mortgaged this acreage to secure the consolidated debt loan. It was not his intent to vest in his wife any interest in the surplus funds. Because that potential exists in this case, we reverse and remand for the chancellor to apportion the surplus funds in a manner which protects the appellant’s interest in those funds.
While neither party raises the point, the chancellor also included property held by the entirety — the 3.1 acre homestead — and designated it as marital property under his formula, applying the same percentages for the distribution of any surplus. This is error, since we have previously held that Ark. Code Ann. § 9-12-315 is not applicable to property held as tenants by the entirety. See Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981). Here, again, the potential exists under the formula for there to be an unequal division of entirety property depending on whether the proceeds from the sale of the homestead are applied to payment of marital debt or distributed as surplus to the parties. If distributed as surplus funds, an unequal division would occur under the formula. We reverse the chancellor on this point and remand the case for reconsideration of his formula in light of this opinion. See Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987).
For his final argument George Hale contends that, in the event we decide his gift property was appropriately applied to pay marital debt, we should also include Cheryl Hale’s inheritance to be received from her father’s estate. Our holding does not stand for the general proposition that gift property during marriage may be used to satisfy marital debt, but rather we have held that the 119 acres was appropriately applied to pay the consolidated debt loan because George Hale specifically mortgaged the property to secure that loan. We, therefore, do not reach the issue of Cheryl Hale’s inheritance.
Affirmed in part; reversed in part and remanded.
Dudley and Newbern, JJ., concur. | [
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Per Curiam.
The petitioner Kirt Wainwright was found guilty by a jury of capital felony murder in 1989 and sentenced to death by lethal injection. This court affirmed. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990); cert. den__U.S. _, 111 S. Ct. 1123 (1991). Petitioner now seeks permission to proceed in circuit court pursuant to Criminal Procedure Rule 37. The petition contains some forty or more allegations, many of which petitioner concedes were raised only to satisfy procedural considerations with an eye to pursuing a petition for writ of habeas corpus in federal court should that be necessary at a later date. We will address the issues one-by-one in approximately the order raised in the petition.
Defense counsel was ineffective for failing to challenge the constitutionality of the trial court’s limitation of expenses for expert forensic, ballistic, and psychiatric testimony.
At the time petitioner was tried Ark. Code Ann. § 16-92-108 (1987) set out certain limitations on expenses and fees imposed for court-appointed attorneys for indigent clients accused of criminal offenses. Since that time we found the fee cap statute unconstitutional. Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991).
Counsel for appellant requested and received funds in excess of the statutory amount allowed under the statute for expert testing and testimony for his trial, but he did not receive as much as he requested. On appeal, petitioner argued that the trial court erred in denying sufficient funds to secure the services and testimony of a psychiatric expert. We found no error. Petitioner contends that if counsel had challenged the statutory fee cap, the challenge would have been successful and the trial court would have been less hampered in awarding fees for psychiatric and forensic testing and testimony and thus counsel was ineffective. We do not accept petitioner’s conclusion.
While it can always be said that a defendant could have benefitted from more money to spend on his defense, a petitioner cannot establish that his attorney was ineffective for not securing additional funds merely by reciting testing which could have been done or witnesses which could have been called had there been more money available. Assertions of ineffective assistance of counsel must be examined in light of the criteria set out in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court held that the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. The criteria apply to both capital sentencing proceedings as well as the guilt phase of a capital trial. Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985).
To prove ineffective assistance of counsel under the Strickland standard, the petitioner must show first that counsel’s performance was deficient in that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Both showings are necessary before it can be said that the conviction or death sentence resulted from a breakdown in the adversarial process that renders the result unreliable. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner has the burden of overcoming that presumption by identifying the acts and omissions of counsel which when viewed from counsel’s perspective at the time of trial could not have been the result of reasonable professional judgment. Even if counsel’s conduct is shown to be professionally unreasonable, the judgment must stand, unless the petitioner demonstrates that the error had a prejudicial effect on the actual outcome of the proceeding. A reasonable probability that, but for counsel’s conduct the result of the proceeding would have been different, is a probability sufficient to undermine confidence in the outcome.
Trial counsel sought expenses to pay for additional psychological expert testimony, to employ an independent forensic expert to study the autopsy findings, to employ a ballistics expert, and for a sociologist to help in preparing the defense and to testify in mitigation of punishment. The requests were denied, and petitioner has not demonstrated that had counsel on appeal challenged the fee cap that the judgment would have been reversed on appeal, especially since this court had previously upheld the statute’s constitutionality. Ruiz v. State, 269 Ark. 331, 602 S.W.2d 625 (1980). Trial counsel presented a zealous defense in behalf of an accused against whom there was ample evidence of guilt. Petitioner has offered no factual substantiation that convinces us that there is a reasonable probability that the outcome of either the guilt or sentencing phases of the trial would have been different had the jury heard specific testimony of a specific witness. Petitioner’s most specific assertion is that Dr. Irwin Stone, a ballistic’s expert, could have testified conclusively that an alleged accomplice Dennis Leeper fired the weapon used to kill the store clerk. This allegation, however, falls short of establishing that counsel’s failure to raise the fee cap issue on appeal deprived the petitioner of a fair trial and appeal whose outcome can be relied on as just.
Attorneys at trial were ineffective in failing to object to the trial court’s exclusion of venirepersons Steed and Johnson for cause.
Two prospective jurors, Steed and Johnson, were excused by the court after each expressed a preference for imposing a death sentence in cases where the evidence showed that the murder had been committed in the course of a robbery. Petitioner asserts that counsel should have objected under Witherspoon v. Illinois, 391 U.S. 510 (1968). In Witherspoon the Court held that a state may not constitutionally execute a death sentence imposed by a jury culled of all those who revealed in voir dire examination that they had conscientious scruples against, or were otherwise opposed to, capital punishment. In Adams v. Texas, 448 U.S. 38 (1980); see also Wainwright v. Whitt, 469 U.S. 412 (1985), the court said that as a general proposition a juror may not be challenged for cause based on his views about capital punishment, unless those views would prevent, or substantially impair, the performance of his duties as a juror in accordance with his instructions and his oath. It is the trial court which must decide if the juror’s views would prevent or substantially impair performance of his or her duty as a juror, and great deference must be given to the trial judge who sees and hears the potential jurors. Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990).
Here, Steed said that if it were proven that the accused took a life, his life should be taken too. He further stated that if the state proved its case that a life had been taken, he probably would not consider imposing a sentence of life imprisonment without parole. He also said that he would be able to follow the court’s instructions and give consideration to both life without parole and death as appropriate punishments. Venirewoman Johnson said that she believed that the state had the right to take a life as punishment for certain crimes and that she would be able to vote to impose the death penalty in a case where capital murder was proven. She further stated at one point that she would be unwilling to consider life without parole as a punishment where a life had been taken during a robbery. Although she said that she would be able to follow the court’s instructions and at least give consideration to both possible punishments, she also expressed several times a leaning toward the death penalty.
Under these circumstances, when considering the deference which must be given to the trial court which was in a position to hear the words of the venirepersons and consider their demeanor, we cannot say that the court was wrong to excuse either Steed or Johnson for cause. Moreover, it is not clear how petitioner could have been prejudiced by the trial court’s action since both the jurors clearly looked upon capital punishment with favor.
Counsel was ineffective in not raising and supporting a motion to suppress petitioner’s statements on the ground that the statements were coerced.
Counsel challenged the admissibility of four statements made by the petitioner to the police on the ground that the statements were not freely and voluntarily given. Only the fourth statement was incriminatory. After a pretrial hearing on the voluntariness of the statements, the trial court ruled that the statements were admissible. The issue of the voluntariness of the second statement and the inculpatory fourth statement was raised on appeal. This court made an independent determination of the voluntariness of the statements and upheld the trial court’s decision. Counsel also challenged two other statements, one made during a search of his cell and another made to his co-defendant Leeper. These statements were introduced into evidence in the penalty phase of the trial. We sustained the trial court’s ruling that those statements were admissible. Petitioner contends that Leeper in a post-trial interview said that the first statement petitioner gave, which was not incriminatory, and the statement made during the cell search were both coerced. He alleges that there are potentially other witnesses who could corroborate Leeper’s assertion.
Trial counsel challenged the admissibility of the statements at trial, and petitioner has offered no convincing factual support for the allegation that counsel could have shown that the statements were inadmissible had he called Leeper or any other specific witness to testify that the statements were coerced. The substantiation provided by petitioner to demonstrate that counsel could have produced further evidence of coercion is too weak to overcome the presumption that counsel was effective.
Counsel was ineffective for failing to timely object and support his motion that the jury did not reflect a fair cross-section of the community and for failing to challenge the constitutionality of Ark. Code Ann. §§ 16-32-103 — 105 (1987).
After voir dire of the jury panel had begun, counsel for the petitioner moved to quash the panel on the ground that it did not represent a cross-section of the community. The court denied the motion because it was not timely made and because there was no showing that the venirepersons did not represent a cross-section and random sample of the community. Petitioner alleges that counsel had facts available to show that about thirty percent of the people in Nevada County were black but the jury panel was only approximately 15 % black. He further argued that counsel should have raised the issue of whether choosing a jury panel from a list of registered voters, as was done in this case, is constitutional under the Sixth and Fourteenth Amendments.
As to whether counsel was ineffective under the criteria of Strickland in failing to object in a timely manner to the makeup of the jury panel before voir dire began or in failing to present evidence to show that the panel did not represent a fair cross-section of the community, petitioner has not shown that he was prejudiced in that he has not demonstrated that the jury which tried him was not selected in accordance with the requirements of the Sixth Amendment. Before it can be said that counsel was ineffective, petitioner must establish that some distinctive group such as women or black persons was excluded. See Duren v. Missouri, 439 U.S. 357 (1979). Petitioner has not met his burden of demonstrating that counsel could have presented facts to show that there had been a systematic exclusion of black persons from the jury panel in this case. He has also failed to show in his petition that the choosing of jurors from a list of registered voters denied him a fair trial under the criteria set out in Strickland. In a related allegation, petitioner asserts that counsel was ineffective in failing to establish a prima facie case of purposeful discrimination by the state in exercising a peremptory challenge to exclude Gladys Blakely. There is no merit to the argument because, as we held on appeal, the prima facie showing was not made at trial, but even if it had been made, the state clearly offered a neutral explanation for its challenge of Ms. Blakely, i.e. her views on the death penalty.
Counsel was ineffective in failing to object “through comparative review”, to petitioner’s sentence as violative of the cruel and unusual punishment clause of the Eighth Amendment as caused by passion or prejudice.
This court has committed itself to comparative review of death sentences to assure evenhandedness in the application of the death penalty in this state. Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988). Petitioner was afforded this review on appeal; therefore, counsel was not ineffective with respect to securing a comparative review on appeal of petitioner’s death sentence with sentences imposed in other murder cases.
If petitioner is contending that counsel should have moved for the trial court to reduce the sentence to life without parole, he has provided nothing to demonstrate that the jury’s recommended sentence was the result of passion or prejudice or that the sentence was not otherwise appropriate under the laws of this state and the United States. Petitioner argues that the facts that Leeper was found to have gunpowder residue on his hands, that Leeper pleaded guilty, and that another co-defendant who drove the car used in the robbery was acquitted should be noted when considering whether the death penalty should have been imposed. There was ample evidence from which it could be fairly concluded that petitioner committed the crime with which he was charged, thus, neither the evidence that Leeper had gunpowder residue on his hands nor the fact that the death penalty was not imposed on the co-defendants establishes that there was a reasonable probability that counsel could have successfully challenged the death sentence in the trial court on the basis of comparative review.
Counsel was ineffective in not presenting evidence to support the defense that petitioner did not commit the murder and the mitigating circumstance that the murder was committed by another person.
Petitioner contends that had counsel presented expert testimony relative to the amount of gunpowder residue on Dennis Leeper’s hand and called petitioner to testify, the jury would have concluded that he was not the triggerman and either convicted him of first degree murder or sentenced him to life imprisonment without parole for capital murder.
As we said on direct appeal, there was evidence which clearly supported the state’s charge that the petitioner killed the store clerk in the course or furtherance of a robbery. At trial petitioner raised the defense that he did not commit the homicidal act, but evidence was adduced which indicated that several witnesses saw petitioner run from the convenience store immediately after the victim was shot. Octavia Hardamon, who personally knew petitioner, said that she saw petitioner leave the store with a pistol in his hand. Considering the evidence produced by the state, we cannot say that petitioner has shown that there is a reasonable probability that the jury would have concluded that he was not the triggerman if a ballistics expert had been called to testify.
Petitioner’s allegation that the jury would have been swayed by his testimony had he been called is conclusory. A petitioner who claims that counsel was ineffective for not calling him to testify must state specifically what the content of his testimony would have been and demonstrate that his failure to testify resulted in actual prejudice to his defense. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985). Petitioner has not set out what his testimony would have been; therefore, it cannot be said that the defense was prejudiced by the failure to testify. Moreover, the decision to advise a defendant not to take the stand, even if it proves improvident, is a tactical decision within the realm of counsel’s professional judgment, and matters of trial tactics and strategy are not grounds for post-conviction relief. Isom, 284 Ark. 426, 682 S.W.2d 755; Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984); Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). Petitioner has presented nothing to show that counsel here did more than merely advise his client not to testify.
Petitioner was denied due process and a fair trial in that police misconduct induced a factually inaccurate statement from Octavia Hardamon and inaccurate testimony followed from that statement.
Petitioner states that he is unprepared to support factually the allegation that Octavia Hardamon’s trial testimony was perjured but that he makes the allegation for the purposes for preserving it for further review, presumably in federal court. Petitioner contends that at the least Hardamon was grossly mistaken in her identification because the physical evidence and other witnesses contradict it. He has attached the affidavit of a woman who states that Hardamon has informed her of circumstances surrounding the giving of her statement to the police which casts doubt on the reliability of her account.
Rule 37 was designed as a means to collaterally attack a conviction. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983). Petitioner is clearly attempting to raise questions about the witnesses’s account which constitutes a direct attack on the judgment. The credibility of witnesses, new evidence, and rebuttal evidence are matters for trial since such issues constitute a direct attack on the judgment. See Chisum v. State, 274 Ark. 332, 625 S.W.2d 448 (1981).
The evidence does not support either capital murder or the death sentence.
Petitioner asserts that he is innocent of capital murder and that the death sentence is not supported by the evidence. He asks this court to set aside the conviction, set aside the death penalty, or reduce the conviction to first degree murder. The argument is a challenge to the sufficiency of the evidence which is not cognizable under our post-conviction rule. McCroskey, 278 Ark. 156, 644 S.W.2d 271.
Appellate counsel was ineffective for failing to argue trial error in sustaining the state’s objection to trial counsel’s attempt to impeach Dr. Fahmy Malak’s testimony.
At trial the state objected when petitioner sought to impeach the medical examiner Dr. Malak about discrepancies in his report in unrelated case. The objection was sustained. Petitioner argues that his counsel should have raised the issue on appeal. He further states that counsel did not comply with Supreme Court Rule 11(f) and abstract the adverse ruling.
If counsel omits an issue which could have been raised on appeal and the convicted defendant later claims under Rule 37 that the attorney was ineffective for failing to argue it, the petitioner must demonstrate that counsel’s action amounted to an error of such magnitude that it rendered counsel’s performance constitutionally deficient under the criteria set out in Strickland; Troutt v. State, 292 Ark. 192, 729 S.W.2d 139 (1987). The burden is on the petitioner to state facts in the Rule 37 petition which show that counsel failed to raise some possibly meritorious issue. Howard v. State, 291 Ark. 633, 727 S.W.2d 830 (1987). Petitioner has not met his burden of establishing that there would have been any merit to the argument even if it had been raised on appeal. An attorney need not advance every possible argument regardless of merit. Howard, 291 Ark. 633, 727 S.W.2d 830; see Jones v. Barnes, 463 U.S. 745 (1983).
Trial counsel was ineffective in twenty-four additional instances.
Petitioner lists “for the record” twelve instances where counsel is alleged to have been ineffective. He lists a further twelve instances of counsel’s alleged ineffectiveness “to preserve these issues for habeas review.” The presumption that a criminal judgment is final is at its strongest in collateral attacks on that judgment. Strickland v. Washington, 466 U.S. 668 (1984). The burden of demonstrating some actual prejudice arriving from counsel’s conduct falls on petitioner. The petitioner here has not met that burden in that the twenty-four allegations are essentially conclusory statements apparently made to exhaust state remedies which do not provide a basis for a finding of ineffective assistance of counsel. See Reynolds v. State, 248 Ark. 153, 450 S.W.2d 555 (1970).
An assistant Attorney General’s conduct entitles petitioner to relief in some form.
Finally, petitioner states that an assistant Attorney General’s decision to seek a dissolution of the stay of execution in this case amounted to misconduct because another assistant Attorney General had agreed to allow petitioner’s counsel all the time needed to prepare his petition for post-conviction relief. Petitioner states that he is entitled to “relief of some form” and that he desires to point out that any procedural default in federal court is because of misconduct of the state. We find no ground under Criminal Procedure Rule 37 to grant petitioner relief in any form on this allegation.
Petition denied.
We granted petitioner permission to file a petition which exceeds the ten page limit provided in Rule 37.1(e). The petition now before us contains, with attachments, thirty pages. Nevertheless, he contends that “time and space limitations” prevent him from elaborating on some allegations. | [
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Tom Glaze, Justice.
This appeal involves the question of whether Arkansas savings and loans should not be eligible as depositories for public funds under Act 21 of 1935. Act 21 requires the State Bank Commissioner to furnish a list of “banks or banking institutions” insured by the Federal Deposit Insurance Corporation (FDIC). The Act further provided that public funds can only be deposited in the banks appearing on this list. The Bank Department promulgated Regulation XI, paragraph twenty-four, that provides only FDIC banks are eligible to receive public funds.
In the 1980’s, amendments to federal banking laws empowered the savings and loans to perform most, if not all, of the traditional banking services. As a part of these changes, the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) was enacted. FIRREA removed the savings and loans’ insurance from the Federal Savings and Loan Insurance Corporation (FSLIC) and placed the savings and loans under FDIC. The FDIC is composed of two separately administered funds, the Savings Association Insurance Fund (SAIF) and the Banking Insurance Fund (BIF).
Based on these federal law changes, the Arkansas League of Savings Institutions and other interested parties, appellees, filed an action seeking a declaratory judgment that savings and loans are “banking institutions” and FDIC insured under Act 21 and thus eligible to receive public funds deposits. The trial court held for the appellees, and the appellants, Arkansas State Banking Board and other interested parties, appeal.
The provision in question in this appeal provides in pertinent ■ part as follows:
Annually on December 1 the Bank Commissioner shall furnish to the governing board of each city... a list of all the banks or banking institutions doing business in this state which are members of the Federal Deposit Insurance Corporation. The commissioner shall recommend the maximum amount of deposit of public funds each bank shall be allowed to receive. None of these public funds shall be deposited in any bank other than those contained in the list.
Section 1 of Act 21 of 1935, as codified in Ark. Code Ann. § 19-8-105(a).
The parties all agree that in 1935 when this provision was passed, savings and loans were in existence, but they did not have the traditional powers of banking. Thus, there is no question that savings and loans were recognized as being different than banks in 1935 and thus were treated differently.
As already mentioned, savings and loans became FDIC insured and acquired traditional powers of banks by way of changes in federal laws in the 1980’s. Appellants, however, suggest that important distinctions still exist between the two. For instance, savings and loans are organized and regulated differently than and separately from banks. In addition, savings and loans have a primary different purpose than banks, viz., they are the nation’s foremost source of financing for housing. And, while savings and loans are insured under the administrative umbrella of the FDIC, they are still insured by a separate fund, SAIF. This being true, the appellants argue that the SAIF fund is the same type of insurance pool as FSLIC, which insured savings and loans in 1935 and was excluded under Act 21.
The trial court apparently found the above distinctions to be insignificant under Act 21. In ruling that savings and loans now meet the requirements under Act 21, the trial judge made a contemporaneous interpretation of the 1935 Act. The appellants argue that this was erroneous, and we must agree.
This court has stated that the meaning of a written word in a statute must be limited to its meaning as of the date it was employed or used. Schuman v. Certain Lands, 223 Ark. 85, 264 S.W.2d 413 (1954). At the time Act 21 was enacted in 1935, savings and loans were clearly excluded. This is not the case where savings and loans have come into being since legislation has been passed, and the general language in the legislation could be interpreted to include them. See generally N. Singer, Sutherland Statutory Construction §§ 49.01 — 49.11 (1984).
In so stating, we note the appellees’ argument that the use of “banking institutions” in Act 21 is rendered useless. However, when Act 21 was enacted, this term apparently included institutions such as trust companies, savings banks and industrial loan institutions which were under the State Bank Commissioner’s jurisdiction. Regardless, since savings and loans were clearly excluded, we know the 1935 Legislature did not include savings and loans as banking institutions.
We also believe it is significant that, since the 1980’s, the General Assembly has either failed or refused to amend Act 21 of 1935 so as to include savings and loans as public funds depositories. In fact, the president of the Arkansas League of Savings Institutions testified that two different efforts have been made to amend Act 21 to include savings and loans and each met with no success. Thus, the General Assembly has met several times and has made no move to change Act 21, which is a further indicator that savings and loans are considered to be different from banks for the purposes of deposits of public funds. See Pledger v. The Grapevine, Inc., 302 Ark. 18, 786 S.W.2d 825 (1990).
In sum, while it is true that savings and loans now more closely resemble banks, valid distinctions between the two still remain. The General Assembly enacted Act 21, which effectively excluded savings and loans from its provisions, and that body, as a matter of public policy, must decide whether savings and loans should now be included. In so deciding, we must reverse the trial court’s declaratory judgment.
Hays, J., not participating. | [
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Jack Holt, Jr., Chief Justice.
This case involves the procedural question of whether the appellants, Jessie and Connie Travis, may amend their complaint alleging medical malpractice against the appellee, Dr. Richard Houk, to comply with Ark. Code Ann. § 16-114-205 (1987), which prohibits the specification of an amount of damages in an action for medical injury.
On July 18,1990, the Travises filed their original complaint and claimed damages in the amount of $275,000.00, arising out of Dr. Houk’s alleged actions between August 12 to 14,1988. Dr. Houk answered and filed a motion to dismiss on August 13,1990, on the basis of non-compliance with section 16-114-205. The Travises subsequently amended their complaint to claim an unspecified amount of damages, as a result of which Dr. Houk then filed a motion to strike the amended complaint.
On March 18,1991, the trial court granted Dr. Houk’s motion to strike the Travises’ amended complaint and their original complaint was dismissed without prejudice. For purposes of appeal, a judgment is final if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Although the dismissal of the claim against the Travises was without prejudice, it was clearly a dismissal of the parties from this action and a final, appealable order. See Middleton v. Stilwell, 301 Ark. 110, 782 S.W.2d 44 (1990).
The Travises assert one point of error on appeal and argue that the trial court erred in striking the amended complaint and dismissing without prejudice their original complaint. We agree and reverse and remand.
Section 16-114-205 addresses the allegation of damages in medical malpractice actions and provides in pertinent part as follows:
(a) In any action for medical injury, the declaration or other affirmative pleading shall not specify the amount of damages claimed but shall, instead, contain a general allegation of damage and shall state that the damages claimed are within any minimum or maximum jurisdictional limits of the court to which the pleading is addressed.
* * * *
Arkansas R. Civ. P. 15(a) addresses amended pleadings and provides in pertinent part as follows:
(a) Amendments. With the exception of pleading the defenses mentioned in Rule 12(h)(1), a party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding. . . .
In Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989), we noted that a party should be allowed to amend absent prejudice, and an important consideration in determining prejudice is whether the party opposing the motion will have a fair opportunity to defend after the amendment.
Although we have required strict compliance with the medical malpractice provision regarding notice of intent to sue, Cox v. Bard, 302 Ark. 1, 786 S.W.2d 570 (1990); Ofili v. Osco Drug, Inc., 300 Ark. 431, 780 S.W.2d 11, (1989); and Dawson v. Gerritsen, 290 Ark. 499, 720 S.W.2d 714 (1986), we premised our decisions on the legislature’s intent of encouraging “the resolution of claims without judicial proceedings, thereby reducing the cost of resolving claims and consequently the cost of malpractice insurance.” Ofili v. Osco Drug, Inc. (citing Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983)).
In this case, the Travises complied with the notice of intent to sue provision, yet violated section 16-114-105(a) by specifying their damages in the amount of $275,000.00, rather than alleging a general claim for damages. Dr. Houk obliquely claims that “ [i] f the amendment is permitted, the original complaint containing the figure of $275,000.00 is still of public record and open to the community in general. This public record would then be available for any reporter to inspect and, if he considered the matter newsworthy, to publicize.” However, Dr. Houk has not shown resulting prejudice or undue delay as a result of the filing of the amendment. We also find it important, in this case, that there is no showing that Dr. Houk will not have a fair opportunity to defend after the amendment.
Consequently, we find that the trial court misapplied Rule 15(a) and abused its discretion in this case by granting Dr. Houk’s motion to strike the Travises’ amended complaint and dismissing their original complaint without prejudice.
Reversed and remanded. | [
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Jack Holt, Jr., Chief Justice.
On November 15,1990, the appellant, Richard Rischar, was convicted in the Municipal Court of Paragould, Greene County, Arkansas, of DWI First Offense and sentenced to ten days in the county jail, with nine days suspended on the condition he complete DWI School and with the option to perform 24 hours public service work in lieu of the remaining jail sentence, fined $350.00, ordered to pay all costs of prosecution, and had his driver’s license suspended for 90 days.
Rischar appealed to the Greene County Circuit Court, and on May 28, 1991, the trial court affirmed the judgment when Rischar and his attorney failed to appear for the scheduled trial date.
Now, on appeal, Rischar contends that 1) the trial court erred in affirming the municipal court’s sentence without his having the benefit of a trial, and 2) the trial court erred in denying his motion to set aside the judgment. We disagree and affirm the judgment of the trial court.
Initially, Rischar argues that the trial court erred in affirming the municipal court’s sentence without his having the benefit of a trial and relies on Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989), Ark. Code Ann. § 16-17-703 (Supp. 1989), and Ark. Const. Art. 2, §7, for the proposition that he is entitled to the right to a jury trial in his appeal to the circuit court.
While Rischar is correct in his assertion, Ark. Code Ann. § 16-96-508 (1987) addresses judgment on default when a party to trial fails to appear and provides in pertinent part as follows:
If the appellant shall fail to appear in the circuit court when the case is set for trial. . .then the circuit court may, unless good cause is shown to the contrary, affirm the judgment . . . and enter judgment against the appellant for the same fine or penalty that was imposed in the inferior court, with costs.'This judgment shall have the same force and effect as other judgments of the circuit court in cases of convictions or indictments for misdemeanors.
The trial court complied with article 2, §7 by setting Rischar’s case for trial by jury; yet, it was Rischar’s actions in failing to appear at trial that precluded him from exercising that right. Rischar’s attorney claimed, by way of explaining why he and Rischar failed to appear at the scheduled trial date, that he had an agreement with the prosecutor to try the case on May 30, 1991; however, the prosecutor denied this contention and relied on the trial court’s docket setting the trial for May 28. At the hearing on the motion to set aside the judgment, the trial court succinctly noted that “. . . it was fairly clear to the court that this case was clearly set on May 28th. . .’’and ultimately determined that Rischar’s attorney had not shown just cause to set aside the judgment.
The court controls the trial calendar and provides for the scheduling of cases upon the calendar, Ark. R. Crim. P. 27.2, the setting of which is tantamount to a direct order of the court. Recently, in Sphere Drake Ins. Co. v. Bank of Wilson, 307 Ark. 122, 817 S. W.2d 870 (1991), we noted that although Ark. R. Civ. P. 55(c) authorized a trial court to set aside a default judgment upon a showing of excusable neglect, unavoidable casualty, or other just cause, where the appellant in that case was faced with a court order to answer interrogatories within ten days or face default, it was irrelevant whether appellee’s counsel objected to the appellant’s stated intention not to file responses because the appellee’s attorneys did not have the authority to authorize the appellant to flaunt a court order.The same holds true in this case, regardless of an agreement, if any, between the attorneys as to a different date for trial. Simply put, attorneys do not have the authority to vary a trial date set by the court.
Rischar’s case was set by the court for trial on May 28; neither party filed a motion for continuance or otherwise notified the trial court of a desire to change the scheduled trial date. On May 28, the prosecutor announced ready for trial, but Rischar and his attorney failed to appear. Consequently, the trial court acted within its discretion in affirming Rischar’s conviction. To hold otherwise would be to let the attorneys flaunt the trial court’s order.
Intertwined with Rischar’s first point of error is his second argument that the trial court erred in failing to grant his motion to set aside the judgment because he showed good cause for not being present at trial. He asserts the same explanations as to why he was not present for the scheduled trial date, with the addition of a claim that the State did not have anyone subpoenaed who had seen him driving. The prosecutor countered this claim with assurances to the trial court that the absence of these witnesses would not have affected the case. We do not address this second issue inasmuch as Rischar has not shown good cause for not being present at trial.
Accordingly, the judgment of the trial court is affirmed. | [
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Donald L. Corbin, Justice.
Appellant and separate defendant below, Quality Ford, appeals a default judgment entered by the Pulaski County Circuit Court contending the judgment should not have been entered because the answer filed by separate defendant Ford Motor Company inured to appellant’s benefit and because appellant was prohibited from presenting evidence concerning mitigation of damages. We do not reach the merits of this case because the order appealed from does not comply with the requirements of ARCP Rule 54(b) and is therefore not a final and appealable order. We must dismiss the appeal.
The essence of the order’s insufficiency is that, without stating any reason for doing so, it does not finally determine the rights of all the parties. When multiple parties are involved in a case:
[T]he court may direct the entry of a final judgment as to one or more but fewer than all of the. . . parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates ... the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the ordér or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
ARCP Rule 54(b).
We have stated many times that for an order to be final and appealable it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Wilburn v. Keenan Cos., 297 Ark. 74, 759 S.W.2d 554 (1988); Elardo v. Taylor, 291 Ark. 503, 726 S.W.2d 1 (1987); McIlroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982); ARCP Rule 54(b); Ark. R. App. P. 2. The order appealed from in this case does not comply with ARCP Rule 54(b) because it concludes the rights of less than all of the parties.
In the present case, there were originally six plaintiffs, namely Minnie Ruth Faust, James and Betty Beaver, Ricky Jynes, Dwight Meek, and Gary Williams, who filed suit against two defendants, Quality Ford and Ford Motor Company. The six plaintiffs had separate claims against the defendants; there was a common thread in their claims in that they purchased used cars from Quality Ford relying on the salesmen’s representations that the cars were either Ford executives’ cars or one-owner cars. In fact, the cars were later determined to have been rental cars which had been damaged or wrecked. On February 5,1990, all six plaintiffs filed one complaint against the two defendants and the case received one case number in the circuit court, No. CV 90-593. On October 8, 1990, upon motion of the plaintiffs, the trial court entered an order of dismissal without prejudice dismissing two of the plaintiffs, Dwight Meek and Gary Williams, and one of the defendants, Ford Motor Company. Following the entry of this dismissal, the claims of four plaintiffs, namely Minnie Ruth Faust, James and Betty Beaver, and Ricky Jynes, against the one defendant, Quality Ford, remained. The order appealed from in this case was entered in circuit court case number CV 90-593; it is styled as all six original plaintiffs against both original defendants and enters judgment against Quality Ford in favor of only Ms. Faust and Mr. and Mrs. Beaver.
Obviously then, the order appealed from does. not conclude Mr. Jynes’ rights in the action. In fact, there was never any evidence of Mr. Jynes’ claim or damages presented to the trial court. The only explanation given by counsel for the absence of proof of Mr. Jynes’ claim is that Mr. Jynes was in Saudi Arabia and could not be found. The trial court could have made a determination that there was no need for delay of Ms. Faust’s and Mr. And Mrs. Beaver’s claims and so stated in the judgment. However, no such finding was stated in the order appealed from and because it leaves the rights of Mr. Jynes undetermined it is not a final order which can be appealed.
The order appealed from is not a final order in another respect. Although the two plaintiffs and one defendant were dismissed from the case without prejudice on October 8, 1990, there was never a final judgment of dismissal entered stating there was no just reason for delay. Thus, because the two plaintiffs and one defendant were not finally dismissed from the case and the order appealed from does not enter judgment in their favor or against them, their rights were not finally determined. See Black v. Crawley, 304 Ark. 716, 804 S.W.2d 366 (1991); Middleton v. Stilwell, 301 Ark. 110, 782 S.W.2d 44 (1990).
The failure to comply with ARCP Rule 54(b) presents a jurisdictional question in this court which we are obliged to raise on our own. St. Paul Fire & Marine Ins. Co. v. First Commercial Bank, 304 Ark. 298, 801 S.W.2d 652 (1991). We dismiss the appeal without prejudice.
Brown, J., not participating. | [
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Steele Hays, Justice.
On August 6,1990, the Department of Human Services (DHS) filed a petition in the Probate Court of White County pursuant to Ark. Code Ann. § 5-28-101 (1987) for temporary and long-term protective custody of Eloise Honor, an alleged endangered adult suffering from mental and physical ailments which rendered her unable to care for herself. By ex parte order the probate court found probable cause for protective custody, ordered temporary custody and scheduled a hearing on long-term custody for August 20. Ms. Honor was given notice of the hearing and of her right to be present, to effective assistance of counsel, to cross-examine witnesses, and to present evidence in her own behalf.
At the hearing for long-term protective custody Ms. Honor was present but was not represented by counsel. The probate judge found that she lacked the capacity to care for herself, authorized DHS to place her in an appropriate facility, appointed Mr. David Manley as attorney ad litem and ordered judicial review within three months.
Mr. Manley promptly filed a petition in the White County Chancery Court seeking injunction and declaratory relief to return Ms. Honor to her home based on a denial of due process. DHS moved to dismiss on grounds of sovereign immunity, that neither Ark. Code Ann. § 5-28-301 (1987) nor the due process clause of the Fourteenth Amendment required the appointment of counsel and that Ms. Honor had expressly waived counsel.
That matter was heard on November 1 and the chancellor found that Ms. Honor had waived counsel at the August 20 hearing in probate court. Ms. Honor’s petition was denied, as was the motion of DHS, however, the chancellor ruled that Ms. Honor revoked her waiver of counsel and ordered her release and the termination of protective custody.
Ms. Honor brings the matter to this court on four points of appeal: 1. The chancellor erred in holding that § 5-28-101 does not require the appointment of counsel for her; 2. The Chancellor erred in holding that neither art. II, sections 2, 8 and 21 of the Arkansas Constitution nor the due process clause of the Fourteenth Amendment require that Ms. Honor be represented by counsel; 3. The chancellor erred in finding that Ms. Honor waived her right to counsel at the hearing, and 4. The chancellor erred in finding that Ms. Honor was not a prevailing party for purposes of an attorney’s fee pursuant to 42 U.S.C. § 1988 (1981 & Supp. 1991). By cross appeal DHS argues that the chancellor erred in not granting its motion to dismiss.
Addressing the appellant’s points first, we agree that the chancellor erred in holding her right to due process was not violated by the failure to require that she either be represented by counsel, or make an intelligent waiver of that right. Appellant argues that an attorney is required implicitly by the language of the Adult Abuse Act, §§ 55-28-301 — 305 (1987), and by the Arkansas and United States Constitutions. We will deal with the constitutional requirement first.
DHS does not dispute Ms. Honor’s right to an attorney at the long-term care hearing if she so desired. Ms. Honor argues, however, that not only does she have a right to an attorney in theory, but if that right is to be meaningful, more is required of the trial court in the implementation of that right than occurred here. She argues that in connection with a proceeding for long-term care of an abused adult the court must determine whether the individual has the desire and ability to retain counsel, and if indigent, to see that an attorney is appointed, and if no attorney is retained or appointed, the court must be satisfied the subject has knowingly and intelligently waived the right to an attorney. These factors correspond to criminal cases where defendants face the possibility of incarceration. See Ark. R. Crim. P. 8.2 and 8.3. We believe they are equally applicable here, there being no material distinction between procedures aimed at the curtailment of physical liberty whether criminal or civil.
The point is well stated in Project Release v. Prevost, 722 F.2d (2nd Cir. 1983), in its discussion of civil commitment to a mental institution:
Involuntary civil commitment to a mental institution has been recognized as “a massive curtailment of liberty,” Vitek v. Jones, 445 U.S. 480, 491-92, 100 S.Ct. 1254, 1262-63 63 L.Ed.2d 552 (1980); Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972), which, because it may entail indefinite confinement, could be a more intrusive exercise of state power than incarceration following a criminal conviction. See Colyar v. Third Judicial District Court, 469 F. Supp. 424, 429 (D. Utah 1979) (citing Humphrey v. Cady, 405 U.S. at 509, 92 S.Ct. at 1052). Civil commitment for any purpose requires due process protection. See Vitek, 445 U.S. at 491-92, 100 S.Ct. at 1262-63; Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979); O’Connor v. Donaldson, 422 U.S. 563, 580, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (Burger, C.J., concur ring). Indeed, “[t]here can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law.” O’Connor, 422 U.S. at 580, 95 S.Ct. at 2496 (Burger, C.J., concurring). Whether the state purports to act pursuant to a parens patriae interest in promoting the welfare of the mentally ill, see Rogers v. Okin, 634 F.2d 650, 657-59 (1st Cir. 1980), vacated and remanded sub nom. Mills v. Rogers, 457 U.S. 291, 102 S.Ct. 2442, 2447, 73 L.Ed.2d 16 (1982), or pursuant to its police power interest in preventing violence and maintaining order, 634 F.2d at 654-57; 102 S.Ct. at 2447; the state, in so acting may not curtail or deny Fourteenth Amendment substantive or procedural due process protections in exercising such powers. See O’Connor, 442 U.S. at 580, 95 S.Ct. at 2496; Specht v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 1211, 18 L.Ed.2d 326 (1967). Diminished capacity alone cannot serve to undermine protections afforded the individual’s liberty interest in this area.
Project Release at 926.
The court continued:
Recent cases indicate that a right to counsel exists where an individual’s physical liberty is threatened by the state’s action. See Lassiter v. Department of Social Services, 452 U.S. 18, 25-27, 101 S.Ct. 2153, 2158-2159, 68 L.Ed.2d 640 (1981); see also Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656 (1973) (probation revocation hearings); In re Gault, 387 U.S. 1, 36-37, 87 S.Ct. 1428, 1448, 18 L.Ed.2d 527 (1967) (juvenile delinquency proceedings) cf. Vitek, 445, U.S. at 495-97, 100 S.Ct. at 1264-66 (prisoner challenging attempted transfer to mental institution). Some courts have explicitly recognized a right to counsel in civil commitment proceedings. See, e.g., Heryford v. Parker, 396 F.2d 393, 396 (10th Cir. 1968); Dixon v. Attorney General, 325 F.Supp. 966, 974 (M.D. Pa. 1971); In re Hop, 29 Cal. Rptr. 721, 728 (1981); In re Fisher, 39 Ohio St.2d 71, 72, 313 N.E.2d 851, 858 (1974); cf. Thornton v. Corcoran, 132 U.S. App. D.C. 232, 407 F.2d 695, 701 (1969) (matter considered in context of mental examination requested when accused raises insanity issue; counsel not required at psychiatric staff conference); United States v. Albright, 388 F.2d 719, 726 (4th Cir. 1968) (when mental examination requested by prosecution, counsel not required by psychiatric interview).
A right to counsel in civil commitment proceedings may be gleaned from the Supreme Court’s recognition that commitment involves a substantial curtailment of liberty and thus requires due process protection. Addington, 441 U.S. at 425-27, 99 S.Ct. at 1808-10.
Project Release at 976.
However, not only must the right to an attorney be recognized in civil proceedings where physical liberty is in jeopardy, it is necessary that the right be recognized in a meaningful way so that constitutional safeguards are in fact implemented. This is discussed in Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968):
Where, as in both proceedings for juveniles and mentally deficient persons, the state undertakes to act in parens patriae, it has the inescapable duty to vouchsafe due process, and this necessarily includes the duty to see that a subject of an involuntary commitment proceeding is afforded the opportunity to the guiding hand of legal counsel at every step of the proceedings, unless effectively waived by one authorized to act in his behalf
. . . Nor is it sufficient that the Wyoming statute permissively provides that the proposed patient “may be represented by counsel.” Fourteenth Amendment due process requires that the infirm person, or one acting in his behalf, be fully advised of his rights and accorded each of them unless knowingly and understandingly waived. [Our emphasis.]
To the same effect see In re Fisher, 313 N.E.2d 851, 39 Ohio St.2d 71 (1974).
The safeguards for right to counsel in criminal cases were outlined recently in Kincade v. State, 303 Ark. 331, 796 S.W.2d 580 (1990):
The Sixth and Fourteenth Amendments to the Constitution of the United States guarantee that any person brought to trial in any state or federal court must be afforded the fundamental right to assistance of counsel before he can be validly convicted and punished by imprisonment. Before an accused manages his own defense he must knowingly and intelligently waive the right to counsel. Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. The burden is on the government to clearly demonstrate a waiver of counsel. A trial court must inquire of an accused’s ability to retain counsel, and if the accused is an indigent, counsel must be appointed for him. [Citations omitted.]
Nothing in this record reflects that these rights were effected. While Ms. Honor was given a notice of the hearing required by § 5-28-304 of the Adult Abuse Act, which included the statement that she had the right to “effective assistance of counsel,” nothing else was done with regard to that right. When Ms. Honor attended the hearing she was not notified of her right at that time, nor was any inquiry made as to whether counsel had been retained, was desired, or whether Ms. Honor could afford an attorney. On the strength of what is before us we cannot conclude that an informed waiver occurred at this hearing, nor was Ms. Honor even asked if she chose to waive her right to counsel. The most that could be said of the proceedings is that she showed a passive acquiescence in general, but there is simply no affirmative showing of a waiver of counsel.
Nor can we agree with the chancellor’s finding of a waiver of counsel where he also found long-term protective custody to be appropriate, which requires a finding by the trial court that:
1) the person is lacking the capacity to comprehend the nature and consequence of remaining in a situation that presents an imminent danger to his health or safety;
2) the individual is unable to provide for his own protection from abuse or neglect; and
3) the court finds clear and convincing evidence that the individual to be placed is in need of placement as provided in this chapter.
See § 5-28-305. To determine that long-term custody is appropriate because the individual lacks the capacity to comprehend impending dangers, finding at the same time there has been a knowing and intelligent waiver, is patently inconsistent. Accordingly, we agree that the trial court erred in holding that appellant’s right to counsel was not violated.
As to the contention of Ms. Honor that the Adult Abuse Act itself requires the safeguards we have just discussed, there is no need to address the issue, in view of our holding they are required on constitutional grounds.
As the appellant is now determined to be the prevailing party in this case, the chancellor should determine the award of attorneys’ fees pursuant to 42 U.S.C. § 1988.
CROSS APPEAL
On cross appeal, DHS argues the trial court erred in failing to dismiss the § 1983 action against both the Department of Human Services, and its director, Terry Yamauchi, in his official capacity. Citing to Will v. Michigan Department of State Police, 491 U.S. 58 (1989), appellees argue that both the state agency and the director are immune from suit.
We agree that neither the state nor a state agency can be sued under § 1983, see Will v. Michigan, supra, and the case against the department should have been dismissed on that basis. However, this is only a matter of form in this case as the director of the agency can be sued in his official capacity where, as here, only injunctive relief is sought.
Of course a state official in his or her official capacity when sued for injunctive relief, would be a person under § 1983 because ‘official capacity actions for prospective relief are not treated as actions against the state.’ [Citations omitted.]
Will v. Michigan, at 2311, n.10.
Appellees also argue the trial court failed to dismiss the case on the ground of an adequate remedy at law under Ark. R. Crim P. 60(b) or under a writ of habeas corpus. The appellees however failed to make a motion to transfer which was the proper remedy for this objection. See Horne Brothers, Inc. v. Ray Lewis Corp., 292 Ark. 477, 731 S.W.2d 190 (1987); Stolz v. Franklin, 258 Ark. 999, 531 S.W.2d 1 (1976).
Furthermore, appellant’s request for relief included future injunctive relief as well as immediate relief, relief not available under the remedies at law. Appellant requested that an injunction issue against the director to prohibit the identical action against her unless constitutional safeguards were in place. Regardless of whether the appellant is entitled to bring an action of law, the mere existence of that right does not deprive the equity court of jurisdiction unless the legal remedy is clear, adequate and complete. Spears v. Rich, 241 Ark. 15, 405 S.W.2d 929 (1966).
Reversed on direct appeal, affirmed on cross appeal.
We note that there was no request by appellant to declare the Adult Abuse Act unconstitutional in this case. Rather, her argument is only that although not expressly required by the act, these requirements are implicity recognized. See 16 Am. Jur. 2d, Constitutional Law § 225 (1979); and to the same effect ice Hardware Mutual Casualty Company v. Maxey, 212 Ark. 161, 205 Ark. 29 (1947).
Appellant’s original complaint requested injunctive relief for appellant’s release but no request for future injunctive relief. However at the hearing on the motion to dismiss, appellant’s attorney in discussing this matter, in effect, made an amendment to the pleadings, with no objection from appellees at that time. Neither is there any objection on this point on appeal. | [
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Tom Glaze, Justice.
This is a slip and fall case in which the jury returned a unanimous verdict in favor of appellee. The appellant raises two issues on appeal: first, the trial court erred in refusing to allow appellant to photograph the interior of appellee’s restaurant; and second, the evidence was insufficient to support the jury’s verdict. We affirm.
On June 17, 1987, appellant and her business associate, Mark Dossett, ate dinner at appellee’s restaurant. As they were leaving, appellant went to speak to the manager regarding a cracked glass in which she had been served water. She walked from the area of the restaurant near the cash register across a tiled hallway toward the kitchen and restroom area. When she returned down the same hallway, appellant slipped and fell, sustaining severe injuries. Appellant filed suit against the appellee, alleging that her fall and the injuries to her arm were caused by a slippery substance on appellee’s floor.
After the incident, the restaurant was remodeled and the area of the fall was carpeted. Appellee’s motion in limine was granted, preventing any mention of this renovation to the jury. Appellant made an oral and a written motion for entry onto appellee’s premises for the purpose of photographing the scene. Both motions were denied because the conditions in the restaurant had changed and because it did not appear that allowing photographs would be reasonably calculated to lead to admissible evidence. However, the trial court permitted appellant’s counsel to enter the restaurant and to make any diagrams or plats they desired.
In reviewing the trial court’s denial of appellant’s motion to photograph the restaurant, the trial court has a wide latitude of discretion in matters pertaining to discovery. Curbo v. Harlan, 253 Ark. 816, 490 S.W.2d 467 (1973). This court will not reverse the decision of a trial judge in the absence of an abuse of discretion which is prejudicial to the party appealing. Marrow v. State Farm Insurance Co., 264 Ark. 227, 570 S.W.2d 607 (1978).
We conclude that the trial court acted within its discretion in this case. First, appellant made no showing that the taking of photographs would have lead to the discovery of admissible evidence, nor did she show any prejudice would result from the denial of her motion. Her attorneys were allowed to enter the restaurant, and they made a diagram depicting the floor area where appellant had been seated, where she walked, and. where she fell. Also, shortly after appellant’s fall, appellee took a Polaroid photograph of the hallway area as it appeared at the time appellant sustained her injuries and before any remodeling had been done. The parties introduced the diagram and photograph at trial and had their respective witnesses use them to explain their versions of what occurred. Because these exhibits enabled the appellant to describe and explain her version of the facts to the jury, the trial court cannot be said to have abused its discretion in disallowing appellant to take additional photographs of the same interior of the restaurant after its renovation.
As her second point of appeal, appellant claims that the verdict of the jury is not supported by substantial evidence. Substantial evidence is defined as that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond suspicion or conjecture. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991). This court has stated that we must affirm if there is substantial evidence to support the judgment below. Handy Dan Improvement Center, Inc. v. Peters, 286 Ark. 102, 689 S.W.2d 551 (1985). Further, in testing the sufficiency of the evidence as being substantial on appellate review, we need only consider the testimony of the appellee and that part of the evidence which is most favorable to the appellee. Love v. H.F. Construction Company, 261 Ark. 831, 552 S.W.2d 15 (1977).
The law is well settled that the appellee owes the invitee the duty to use ordinary care to maintain the premises in a reasonably safe condition. Dye v. Wal-Mart Stores, Inc., 300 Ark. 197, 777 S.W.2d 861 (1989); Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989). In order to prevail in a slip and fall case, the appellant must show either (1) the presence of a substance upon the premises was the result of the defendant’s negligence, or (2) the substance had been on the floor for such a length of time that the appellee knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Dunklin, 307 Ark. 127, 817 S.W.2d 873; Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986); see also AMI Civil 3rd, 1105. The mere fact that a person slips and falls does not give rise to an inference of negligence. J.M. Mulligan’s Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1990). Possible causes of a fall, as opposed to probable causes, do not constitute substantial evidence of negligence. Willmon, 289 Ark. 14, 708 S.W.2d 623.
In reviewing the record of the trial, appellee’s main theory was that no substance was present on the floor either before or after the accident. Maria Woodcock, the waitress who served appellant, testified that she had walked across the tiled floor approximately two to three minutes before the fall and there was nothing on it. Todd Underwood, the restaurant manager, testified that he had walked through the area within five minutes of the fall and nothing was on the floor at that time. Underwood also testified that he rubbed his hand across the floor after appellant fell and found nothing oily, slippery or wet on the floor.
Further, both employees testified that the restaurant took steps to maintain the premises in a reasonably safe condition. Woodcock testified that the restaurant had a policy concerning spills under which the employees were required to clean up any foreign substances off the floor as soon as they discovered them. Underwood testified that part of his duties as manager included “roaming” the restaurant to make sure there were no problems.
While conflicting evidence was presented by appellant, the jury was not required to believe appellant’s version of what occurred. In Blissett v. Frisby, 249 Ark. 235, 239, 458 S.W.2d 735, 738 (1970), the court stated the following:
Resolution of conflicts in testimony in a law case is not within the province of an appellate court, (citation omitted) It is fundamentally a jury function, and a verdict usually is conclusive, (citation omitted) Especially is this so where questions of negligence, contributory negligence and credibility of witnesses are involved.
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Tom Glaze, Justice.
This is an appeal from the appellant’s conviction of delivery substance and delivery of a counterfeit controlled substance. The appellant was sentenced to ten years imprisonment. He raises six points of error on appeal. Because we find merit in the appellant’s argument that the trial court erred in denying his motion for a new trial, we reverse and remand.
Appellant was convicted solely on the basis of Karen Willhite’s testimony. Karen Willhite was employed by the sheriffs department as an undercover narcotics officer. Willhite testified that she made two purchases of methamphetamine, or crank by its street name, from the appellant in his black Camero on March 8, 1990 and April 10,1990. Willhite did not wear any type of recording device during the buys, nor were drug buys witnessed by anyone else. After making the drug purchases with the sheriffs department money, Willhite took the drugs to Deputy Ricky West, who made out the offense/incident reports. One of the packages of crank was determined to be counterfeit. Willhite admitted during her testimony that she was friends with the appellant, but denied that they were lovers or had sex.
At the trial, the appellant presented an alibi defense that he was in California during the time of the March drug buy and that his black Camero was in the shop during this time and the time in April. To support his alibi, he had several witnesses testify that they had seen the appellant in California around the March 8th date. In addition, appellant introduced (1) a billing for an ad he placed in a San Francisco newspaper between March 6 and March 13,1990, (2) copies of two money orders paid in the order of appellant’s name received in California on March 2 and 3, and (3) a copy of a phone bill showing calls made from California to Willhite’s work number on March 4, 5, 7 and 9, 1990.
We first consider the appellant’s argument that there was insufficient evidence to support his conviction. The appellant properly preserved this point on appeal by raising this argument in his motion for a directed verdict. As this court has stated numerous times, we treat directed verdicts as challenges to the sufficiency of the evidence. See, e.g., Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). In criminal cases, this court affirms where there is substantial evidence to support the verdict. Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978). Substantial evidence is evidence which is of sufficient force to compel a conclusion one way or another and forces or induces the mind to pass beyond suspicion or conjecture. See Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). In determining whether there is substantial evidence, the court reviews the evidence in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S. W.2d 887 (1977). It is permissible for the court to consider only the testimony which supports the verdict of guilt. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).
Clearly, Willhite’s testimony of her drug buys from the appellant is sufficient to establish that appellant delivered con trolled and counterfeit substances in violation of Ark. Code Ann. § 5-64-401 (1987). In short, the jury believed the state’s case instead of the appellant’s alibi witnesses and other evidence. This court has stated numerous times that it is the jury’s job to judge the credibility of the witnesses. See Jones v. State, 297 Ark. 499, 763 S.W.2d 655 (1989); Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988).
However, we do find merit in the appellant’s argument that the trial court erred in denying his motion for a new trial on the basis of newly discovered evidence. Before the appellant’s hearing on this motion, his attorney and the state stipulated that Willhite had lied when she stated at appellant’s trial that she and the appellant had not been involved in sexual relations. Although she was subpoenaed, Willhite failed to appear at the hearing. When the appellant attempted to testify about a conversation he had with Willhite at the prison after his conviction, the trial court sustained the state’s hearsay objection. The appellant then proffered his testimony and argues on appeal that the trial court erred in excluding his testimony. We need not address this issue, because the appellant was allowed without objection to introduce into evidence a taped phone conversation he had with Willhite on April 16, 1991, after his conviction.
The phone conversation between Bennett and Willhite was lengthy, but in pertinent part, the following dialogue took place:
Appellant:. Well, what did I do to get you mad at me? I mean, you wouldn’t have just come out and lied, told that kind of a lie without being mad at me, would you?
Willhite: I just don’t know what I was doing. . . .And, I regret it, every day, all day long ... I never stop thinking about it.
* * *
Appellant: Well, I tell you what. You are not the one that got me convicted. It’s the rumors that people started about me, making it look like I was a . . . drug addict . . .
Willhite: I know. I didn’t think anything like that would happen, because you had evidence that, you know . . . Overwhelming.
* * *
Appellant: The only thing you can do is if you call Mark, and I know they are going to threaten you with perjury.
Willhite: That’s all right with me.
Appellant: But I can’t figure out, Karen . . . why you lied in the first place. ... I mean when I was calling you from California all that time, were you planning this?
Willhite: No, No, not at all. . . .
We do not reverse the refusal to grant a new trial unless we find the trial court abused its discretion. Franks v. State, 306 Ark. 75, 811 S.W.2d 301 (1991). In addition, this court has recognized that newly discovered evidence is one of the least favored grounds to justify granting a new trial. Williams v. State, 252 Ark. 1289, 482 S.W.2d 810 (1972). A new trial will not be granted because of perjury on an immaterial issue, or on a collateral issue, nor generally where the false testimony may be eliminated without depriving the verdict of sufficient evidentiary support. Little v. State, 161 Ark. 245, 255 S.W. 892 (1923).
Here, we cannot say that Willhite’s perjured testimony about her relationship with the appellant is an immaterial issue. In addition, from the context of the phone conversation quoted above, there is a strong inference that Willhite may have lied about buying drugs from the appellant. Our concern over these two matters is heightened in view of the fact that, without Willhite’s testimony, there would be insufficient evidence to support the appellant’s conviction. Accordingly, we are compelled to hold that the trial court abused its discretion in denying the appellant’s motion for new trial. See Myers v. State, 111 Ark. 399, 163 S.W. 1177 (1914).
For the purposes of instruction, we briefly address the remainder of the appellant’s argument which may arise on retrial. However, we find it unnecessary to address the appellant’s argument that the trial court erred in refusing to allow the appellant to cross-examine Willhite on whether she had sexual relations with Deputy West, because the appellant failed to make a proffer of what he might have shown on cross-examination. This court has repeatedly held that we will not find error on a trial court’s ruling that excludes evidence when there is no proffer, unless the substance of the offer is apparent from the context in which the questions were asked. Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). The purpose of this proffer is to allow this court to see if prejudice results from the exclusion of evidence. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978). While the appellant made it clear that his theory was that Willhite was involved in sexual relations with Deputy West and appellant at the same time, the appellant admitted that he had no evidence that Willhite was sexually involved with Deputy West. This court is uanble to determine without a proffer what Willhite would have said in reply to this question, and therefore cannot determine if the appellant was prejudiced.
We also summarily dismiss the appellant’s argument that his charges should have been dismissed because he is constitutionally entitled to an indictment by a grand jury. The Arkansas Constitution clearly provides that persons can be charged pursuant to felony informations filed by prosecuting attorneys, and we have addressed this argument on a number of occasions and have consistently refused to extend the right to a grand jury indictment to proceedings in this state. See, e.g., Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990).
Lastly, we address the appellant’s argument that the trial court erred in refusing to allow the police incident/offense reports into evidence. Appellant bases his argument on A.R.E. Rule 612. Under this rule, if a witness uses a writing to refresh her memory, an adverse party is entitled to have the writing produced at the trial and to introduce into evidence those portions relating to the witness’s testimony. Here, however, Willhite testified from her own memory and there is no indication from the record that she used these reports to refresh her memory. Thus, Rule 612 is not relevant to this issue.
Further, Willhite testified consistently concerning those matters contained in these reports. In furtherance of his alibi defense, the appellant sought to have Willhite state that the appellant was in his black Camero during these sales. While Willhite never mentioned appellant’s car during her direct examination, she testified on cross-examination that the appellant was in his black Camero at the time of the drug buys. Under the facts and circumstances of this case, the police incident/ offense reports were inadmissible hearsay. See A.R.E. Rule 803(a)(8)(i).
In holding that a new trial should be granted, we reverse and remand. | [
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Tom Glaze, Justice.
This case involves a dispute between W. E. Long Co. (Long) and Holsum Baking Co. (Holsum Baking) over the use of the “Holsum” trademark in the marketing of bakery products. The major events leading to the dispute are relevant to a discussion of the issues raised on appeal.
Long first registered the “Holsum” mark on such products in Arkansas in 1929. Long licensed Shipley Baking Co. (Shipley), permitting it to use the “Holsum” mark. Years later, in 1944, Long entered into an agreement granting Holsum Baking a bread formula and the right to use the “Holsum” tradename for advertising purposes in Pine Bluff and in other areas not expressly reserved to other Long customers. In fact, Holsum Baking’s geographical market reached outside Pine Bluff and bordered Shipley’s territory. Under the 1944 agreement, Holsum Baking was able to purchase $3,000 or more advertising supplies from Long during the calendar years of 1944,1945 and 1946. In 1946, Holsum Baking joined Quality Bakers of America (QBA), a cooperative and a Long competitor. Since then, Holsum Baking has continuously displayed both QBA’s Sunbeam trademark and the Holsum mark on its packaging. More specifically, Holsum Baking’s vice-president, David Jenkins, explained that his company sold its bread during this period under the composite mark of Holsum Sunbeam.
In 1986, however, Holsum Baking added a wheat bread product and marketed it as “Holsum Grains” with no mention of the Sunbeam mark. In this same year, Long’s representatives visited Holsum Baking and tried unsuccessfully to persuade Holsum Baking to join the Long cooperative. During this visit and discussions with Holsum Baking officials, the Long representatives inspected the bread selection of the two stores where the “Holsum Grains” bread was on display. Holsum Baking subsequently rejected a proposed membership agreement tendered to it by Long.
In February of 1990, Long claimed it had just learned of Holsum Baking’s sales of “Holsum Grains” bread and its purchasing of packaging bearing the “Holsum” mark. Long wrote Holsum Baking requesting that it cease any further use of the mark. Holsum Baking did not respond. Long opted to contact its packaging suppliers, Mobil Chemical Co. (Mobil), Princeton Packaging Co. (Princeton) and James River Paper Co. (James River), and advised them not to sell packaging bearing the “Holsum” mark to Holsum Baking because Holsum Baking was not licensed by Long. The three suppliers acceded to Long’s request which triggered Holsum Baking’s filing this lawsuit. Because of Long’s action, Holsum Baking could obtain packaging with only the Sunbeam label.
In its complaint, Holsum Baking alleged that its 1944 agreement with Long had been breached or abandoned by the parties in 1946 and that Holsum Baking had acquired its rights to the “Holsum” mark in the territory it has continuously served over the past forty-four years. Holsum Baking further claimed a valid contractual relationship and business expectancy with its packaging suppliers, Mobile, Princeton and James River, and that Long had intentionally interfered with that relationship by cutting off its packaging and causing a loss in its bread sales. It also alleged that Long was liable for tortious interference with prospective economic advantage, fraud and conversion and prayed that Long and the three suppliers be enjoined from any acts preventing Holsum Baking from obtaining packaging bearing the “Holsum” mark.
The trial court granted Holsum Baking a temporary restraining order and one month later, a preliminary injunction from which Long brings this appeal. Long argues the trial court erred in issuing injunctive relief because Holsum Baking failed to show that it would be irreparably harmed or that it would likely succeed on the merits of its tortious allegations.
In arguing Holsum Baking suffered no irreparable harm, Long claims the trial court was clearly wrong in finding Holsum Baking suffered any damages because Holsum Baking continued selling its bread products under the Sunbeam label at the same price as it did under the Holsum mark. Citing Kreutzer v. Clark, 271 Ark. 243, 607 S.W.2d 670 (1980), Long also argues that, even if Holsum Baking had suffered some damages, the harm could be recouped through money damages and therefore cannot be considered irreparable.
At trial, Holsum Baking did present evidence reflecting monetary loss in the weekly sum of $1,975 due to its inability to sell Holsum Grains bread. In order to market this bread, Holsum Baking had to introduce a Sunbeam Sandwich Wheat, which took several weeks. Other like testimony bearing on money damages was mentioned at trial, but Holsum Baking argues its irreparable harm results from Long’s actions in preventing Holsum Baking’s use of its common law trademark right in the “Holsum” mark— a right it acquired over the years since 1946.
Mr. David Allen, a trademark expert, testified that the 1944 agreement between Holsum Baking and Long was invalid, because Long had attempted to grant a license without controlling the quality of the goods sold under the “Holsum” mark. Also, Allen opined the parties’ agreement was unenforceable because the agreement was unlawfully tied to Holsum Baking’s purchase of advertising materials from Long. In sum, because the parties’ agreement was invalid but Holsum Baking continued to use the “Holsum” mark when marketing its products in the 'territory it served, Allen concluded Holsum Baking established a valid trademark in the “Holsum” label in its market area. Based upon its acquired rights in the “Holsum” mark, Holsum Baking analogizes its situation to the trademark infringement cases where a trademark represents intangible assets such as reputation and goodwill, and a showing of irreparable harm can be satisfied if it appears that the movant for a preliminary injunction can demonstrate a likelihood of consumer confusion. General Mills, Inc. v. Kellogg Co., 824 F.2d 622 (8th Cir. 1987). Proof of actual confusion is not essential to demonstrate trademark infringement. Id. Further, the movant’s burden at the preliminary injunction stage is slight. International Kennel Club v. Mighty Star, Inc., 846 F.2d 1079 (7th Cir. 1988).
Long counters Holsum Baking’s contention, stating the rules in trademark infringement actions are inapplicable because neither Long nor anyone else is advertising or making sales in Holsum Baking’s marketing area under a trademark which infringes on any purported trademark rights of Holsum Baking. Stripped of such assertions, Long argues that Holsum Baking’s lawsuit is reduced merely to tortious claims that could be satisfied by money damages. Long further argues that, in trademark infringement cases, the likelihood of consumer confusion that leads to the threat of irreparable injury results from the use of a similar mark by another in the same market area thereby damaging the trademark owner’s goodwill and reputation. Here, Long asserts that no such confusion was shown nor was it found by the trial court.
When Long claimed knowledge of Holsum Baking’s use of the “Holsum” mark, it could have sued Holsum Baking then, claiming it was infringing on Long’s trademark. Instead, Long chose to cut off Holsum Baking’s packaging supply, by asking Mobile, Princeton and James River not to furnish Holsum Baking any more packaging with the “Holsum” label. Thus, instead of joining issues and differences in a trademark infringement lawsuit, Holsum Baking was forced to obtain other type relief in order for it to avoid losing its asserted right to the “Holsum” mark which it had long used in its service area. If Holsum Baking acceded to Long’s and its suppliers’ actions, it stood to lose any right it possessed to the “Holsum” mark.
Placed in this position, Holsum Baking, unable to file an infringement action, sought injunctive relief in order to reinstate its packaging source with its “Holsum” mark. Holsum Baking’s acquired goodwill and reputation gained over the years through the use of the “Holsum” mark is no less significant or relevant merely because the mark’s use is questioned in an action other than one involving trademark infringement.
Contrary to Long’s contention, we also believe that, because it was forced to market its bakery products without the “Holsum” label, Holsum Baking showed consumer confusion would likely arise if it was not afforded relief. For instance, since Holsum Grains was removed from the market, the consumer cannot know if the Holsum Grains bread he or she once bought is the same bread as Holsum Baking now shelves as Sunbeam Sandwich Wheat. Also, if Shipley or another Long licensee moves into the Pine Bluff area and markets “Holsum” products, such an event will likely undermine and confuse the association between Holsum Baking’s products and the “Holsum” trademark in the mind of the public. The trial court found that Holsum Baking’s loss was not only monetary but also included the unredeemable loss of goodwill. From our de novo review, we believe the record supports the trial court’s finding of irreparable harm. Thus, we are unable to say that the chancellor abused his discretion in granting a preliminary injunction. Smith v. American Trucking Assn, 300 Ark. 594, 781 S.W.2d 3 (1989).
Long next argues that Holsum Baking failed to show that it would likely prevail on the merits of any of its tortious claims. Of course, in order to justify a grant of preliminary injunction relief, a plaintiff must establish that it will likely prevail on the merits at trial. Smith v. Arkansas Trucking Ass’n, 300 Ark. 594, 781 S.W.2d 3 (1989). Here, the trial court, in issuing its temporary restraining order and preliminary injunction, found that Holsum Baking will likely prevail in its efforts to establish both that Long and Shipley have impermissibly and fraudulently interfered with Holsum Baking’s contractual relations with its suppliers. The court further found that Long and the other defendants had joined in combination to convert Holsum Baking’s accumulated goodwill by disrupting Holsum Baking’s business expectancy in its dealings with retail consumers.
In alleging that Long committed tortious interfer ence with Holsum Baking’s business relationships with its packaging suppliers, Holsum Baking had to show (1) the existence of a valid contractual relationship or a business expectancy, (2) knowledge of the relationship or expectancy on the part of the interferor, (3) intentional interference inducing or causing a breach of termination of the relationship or expectancy and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Mid-South Beverages, Inc. v. Forrest City Grocery Co., 300 Ark. 204, 778 S.W.2d 218 (1989). Clearly, Holsum Baking had a business expectancy with its suppliers, Mobil, Princeton and James River, since it had been doing business with them, especially Mobil, for years. Equally clear is the fact that Long interfered with the relationship between Holsum Baking and these suppliers when Long contacted the suppliers, instructing them to stop selling “Holsum” trademark packaging to Holsum Baking. As previously discussed, Holsum Baking sustained damages as a result of Long’s interference. From our review at this stage of the proceedings, we believe the record supports the trial court’s finding that Holsum Baking will likely prevail on the merits of this underlying tortious claim.
Long argues that it cannot be sued for tort of interference merely because it attempted to enforce its own contract with Mobile, Princeton and James River. In this regard, Long points to its agreement with these suppliers that reflects they will not sell trademark packaging which is confusingly similar to Long’s trademark or is substantially similar to Long’s packaging rights. Of course, Long’s argument begs the very question and controversy that led to the filing of this lawsuit — whether Long has any claim to the “Holsum” mark in the territory served by Holsum Baking. Based upon the evidence presented below by Holsum Baking, Long has since abandoned such a right, and Holsum Baking has acquired it.
Although briefed, we need not discuss the remaining counts alleged and argued in Holsum Baking’s lawsuit since what we have considered is sufficient to uphold the trial court’s decision to issue a preliminary injunction. A final hearing in this matter is yet to be held. At this point, Long has offered no witnesses of its own. Additional evidence and argument are sure to follow this interlocutory appeal. Suffice it to say, the trial court’s issuance of its temporary restraining order and preliminary injunctive relief is amply supported by the law and the facts at this stage of the proceedings.
For the reasons stated above, we affirm.
Holsum Baking was previously known as Arkansas Baking Company.
Shipley’s and Holsum Bakery’s marketing areas actually overlap in Conway, Arkansas. | [
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Albert Graves, Jr., Special Chief Justice.
This appeal arises from a malpractice action brought by Guardians of the Estate of Timothy Courteau (Appellants) against certain Physicians and a liability insurance carrier, during which the court denied Appellants access to statements given to Appellees’ attorney in her initial investigation. We affirm.
On July 2, 1986, while swimming in the Arkansas River, Timothy Courteau (Courteau) fractured his spinal column causing paralysis of both legs. He was hospitalized in North Little Rock Memorial Hospital (Memorial). After surgery, the breathing tube which had been inserted through his nose into his trachea was connected to a mechanical ventilator to assist his breathing. In the early morning of July 6, 1986, the breathing tube was discovered dislodged. Dr. Fran Duke, an emergency room physician for Memorial, repositioned it later that morning. Apparently, during the period between the displacement and replacement of the tube, Courteau suffered cardiac arrest and brain damage from oxygen insufficiency.
On July 9, 1986, Memorial’s Administrator notified the hospital’s insurance carrier, St. Paul Fire & Marine Insurance Company (St. Paul), of the occurrence, and St. Paul, through its Claims Representative, Chris LaLande, retained Laura Hensley of the firm of Friday, Eldridge, and Clark. Ms. Hensley immediately requested statements from employees involved who were potential defendants. The requests of the attorney were relayed by the claims representative to the Hospital Administrator, who, through Memorial’s chain of command, conveyed the request to the employees. On the 10th of July Ms. Hensley met with the employees involved and with Dr. Duke, from whom she also asked for a statement. Ms. Hensley asked that all of the statements include thoughts, opinions, and conclusions.
On February 18,1988, Appellants filed suit against St. Paul. They later amended the complaint to include Dr. Peter Marvin, Dr. Doyne Dodd, and Dr. Fran Duke. The complaint against Dr. Dodd was dismissed by summary judgment.
Attorneys for Appellants began to take depositions of Memorial’s employees, several of whom had given statements to Ms. Hensley in 1986. After some confusion, Appellants’ counsel discovered the existence of the statements, but Appellees’ attorneys objected to all efforts to obtain them, to have the witnesses refresh their memories with them, or to allow the trial judge to review them. Both at pre-trial hearings and during the trial, the trial court refused Appellants’ requests, holding the statements to be attorney-client communications and absolutely privileged.
The case was tried before a jury, nine of whom rendered a verdict for all defendants. After the trial court denied Appellants motion for new trial, Appellants appealed.
Appellants rely on three points for reversal. First, they contend that the written statements given to Ms. Hensley are not entitled to protection under the attorney-client privilege for four reasons: the communications (statements) were not made to or for a lawyer; they were not made for the purpose of facilitating the rendition of legal services; the witnesses were not the clients nor representatives of a client of Ms. Hensley; and the communications were not confidential. The trial court found to the contrary, and we agree.
Arkansas Rules of Evidence 502 provides in part:
(1)(1) A “client” is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.
(a) (2) A [“] representative of the client [”] is one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client.
(b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer’s representative. . . (4) between representatives of the client or between the client and a representative of the client. . . .
Who are the clients? The evidence is undisputed that when Memorial’s Administrator became alarmed on July 9, having heard of the untoward events involving Courteau, Memorial’s E.R. physician, and several employees, he sought assistance from the hospital’s carrier. St. Paul then retained Laura Hensley. It did so to protect itself and its insureds under the policy, who were Memorial, Dr. Duke, and all employees who were potential defendants. All those entitled to the protection of St. Paul’s policy covering the incident became clients of St. Paul’s retained counsel. Although Appellants do not contend that potential defendants are not entitled to representation, they object to the number claimed by Appellees without making objection to specific witnesses. It is important to note that potential defendants are to be determined at the time of the “communication” in the light of all the surrounding circumstances. We cannot say that those persons involved in the treatment of Courteau up to and through the events of July 6 were not potential candidates for suit.
Were the communications (statements) made “to or for” a lawyer? Ms. Hensley, the St. Paul claims representative, and the Administrator, Harrison Dean, all relate by affidavits that statements were to be obtained for delivery to Ms. Hensley. The same persons say that the request was made on July 9, after St. Paul had retained Ms. Hensley. It is apparent that the Appellants’ attorneys are not convinced of the occurrence or the chronology of those events. The trial court was. Likewise, Appellants’ observation that the attorney’s request was relayed through corporate channels does not affect the result.
Appellants propose, although without much conviction, that the statements were not made for the purpose of facilitating the rendition of legal services. There is no doubt that Memorial was an insured of St. Paul and a client of Ms. Hensley. It is difficult to surmise how Ms. Hensley might have gone about advising Memorial without obtaining from its employees information about their actions and observations which had occurred within the scope of their corporate duties. This acquisition is a necessary part of the corporate attorney’s process of advising and protecting the corporate-employer client and is within the privilege. Upjohn Co. v. United States, 449 U.S. 383 (1981). Certainly Ms. Hensley would want to hear or read the employee’s report of the incident to determine the extent of involvement and potential exposure of that particular employee-cleint.
As to whether such communications were confidential, we refer to Ark. Rules of Evid. 502(a)(5) which provides
A communication is “confidential” if not intended to be disclosed to third persons, other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.
The statements were written personally by the witnesses and delivered to Ms. Hensley or to a hospital superior for transmission to her. These statements (communications) were requested and intended for no other person.
Appellants make much of the fact that the information requested by Ms. Hensley to be in the statements, should also have been included in regular hospital records. Even so, this does not color or taint the communication of similar or even identical information by the client to his or her attorney under the attorney-client privilege. It is not the information or the opinion that is privileged, but rather the communication of them to the attorney, in whatever form. Neither the requirement that the information also be provided to some other forum, nor its divulgence in response, will subvert the privilege. The United States Supreme Court in Upjohn quoted Philadelphia v. Westinghouse Electric Corp., 205 F. Supp. 830, 831 (E.D. Pa 1962) as follows: “ ‘The protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. . . .’” Id. at 395-396.
The statements were made by clients and made at the request of and to inform their own and their corporate employer’s attorney for the purpose of facilitating her rendition of legal advice to both. As such, they are absolutely privileged.
Since the statements are absolutely privileged and may not be “discovered”, it is not necessary that we decide Appellants’ second and third points for reversal which are based upon the assumption that the statements are not communications within the privilege, but rather work-product or even some lesser form.
Affirmed.
Holt, C.J., not participating. | [
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Jack Holt, Jr., Chief Justice.
This case involves the payment of proceeds from a life insurance policy and the issue of whether the complaint in interpleader filed by the appellant, •USAble Life, relieves it of liability for prejudgment interest, a statutory penalty, and attorneys’ fees for its failure to make payment of the policy proceeds to the named policy beneficiaries within the 90 days prescribed by the policy.
USAble Life issued a $2,500.00 life insurance policy to Arlie W. Church under a group policy. On August 18, 1989, Mr. Church executed a change of beneficiary form naming the appellees, his daughters Thelma Fow and Judith Bohannan Cole, as his beneficiaries. Prior to this change, Mr. Church’s wife, Mrs. Faye I. Church, had been named the beneficiary of the policy.
Mr. Church died on July 20,1990, and Mrs. Cole submitted a written claim under the policy for herself and Mrs. Fow on August 13, 1990. Mrs. Church also contacted USAble Life by telephone claiming to be the policy beneficiary and threatened to institute a lawsuit if she did not receive payment. USAble Life requested that Mrs. Church provide documentation in support of her claim, but she failed to do so.
On October 10, 1990, USAble Life filed a complaint in interpleader seeking to pay the life insurance proceeds into the registry of the trial court and asking the trial court to determine the beneficiaries of the policy as among Madams Fow, Cole, and Church.
However, Madams Fow and Cole objected to the proposed deposit of the policy proceeds into the court’s registry and counterclaimed against USAble Life for a statutory penalty and attorneys’ fees. The parties subsequently stipulated to all of the relevant facts and submitted the issues to the trial court for resolution.
On May 16, 1991, the trial court entered judgment against USAble Life, finding it liable to Madams Fow and Cole for the $2,500.00 policy proceeds, prejudgment interest, and a statutory 12% penalty, but reserving judgment as to the amount of attorneys’ fees. In a separate final order dated June 11,1991, the trial court awarded Madams Fow and Cole $1,070.00 for attorneys’ fees.
On appeal, USAble Life asserts a single point of error and contends that the trial court erred in holding it liable for prejudgment interest, a statutory penalty, and attorneys’ fees. We disagree and affirm the judgment of the trial court.
USAble Life claims that the fact that it never denied liability and promptly filed a complaint in interpleader absolves it of any liability for a statutory penalty or attorneys’ fees. Its reliance on Clark Center, Inc. v. National Life and Accident Ins. Co., 245 Ark. 563, 433 S.W.2d 151 (1968) and Dennis v. Equitable Life Assurance Society, 191 Ark. 825, 88 S.W.2d 76 (1935), however, is misplaced.
In Clark Center, we determined that the beneficiary was not entitled to the statutory penalty and attorneys’ fee where the insurer in good faith, under the particular facts and circumstances of that case, believed an investigation was necessary and made a reasonable investigation before making payment.
In Dennis, it was apparent that the beneficiaries could not be determined by the insurance organization by a mere examination of the policy of insurance, but recourse had to be had to extraneous proof for a determination of the beneficiary in that case. The vague, uncertain, and indefinite designation of a beneficiary made it necessary to determine or decide certain facts and then to declare the law in relation thereto. We noted that the question of a proper beneficiary was a real one, and the insurance company could not, without involving itself in serious danger, assume the responsibility of deciding disputed facts and controverted propositions of law.
In this case, USAble Life’s policy provided that it had 90 days within which to pay claims after it had been notified of a loss. Although USAble Life has never denied liability for this claim, it is undisputed that it had in its files the change of beneficiary form naming Madams Fow and Cole as current beneficiaries of Mr. Church’s policy. Further, it is clear that USAble Life did not make an investigation as to the proper party for payment or make payment of the policy proceeds to Madams Fow and Cole as named beneficiaries, but chose instead to initiate an action for interpleader apparently based on Mrs. Church’s verbal claims and the threat of a lawsuit. By doing so, USAble Life avoided what is considered to be a potential lawsuit by filing an action in interpleader, while at the same time placing the burden on Madams Fow and Cole to bear legal expenses in perfecting their claim to the monies that were rightfully theirs as current beneficiaries under the policy.
It is undisputed that Mrs. Church’s claims were verbal and that USAble Life never received any written notice claim from her. Arkansas Code Ann. § 23-79-125 (1987) addresses payment by the insurer as a discharge to subsequent claims and provides in pertinent part as follows:
(a) Whenever the proceeds of or payments under a life . . . insurance policy . . . become payable in accordance with the terms of the policy . . . and the insurer makes payment of the amount in accordance with the terms of the policy. . .the person then designated in the policy... as being entitled to the benefits shall be entitled to receive the proceeds or payments and give full acquittance therefor.
(b) The payment shall fully discharge the insurer from all claims under the policy . . . unless, before payment is made, the insurer has received at its home office written notice by or on behalf of some other person that the other person claims to be entitled to the payment or some interest in the policy . . .
Arkansas Code Ann. § 23-78-208 (1987) addresses damages and attorney fees on loss claims and provides in pertinent part as follows:
(a) In all cases where loss occurs and the . . . life . . . insurance company . . . shall fail to pay the losses within the time specified in the policy, after demand made therefor, the. . . firm. . . shall be liable to pay the holder of the policy. . . , in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorneys’ fees for the prosecution and collection of the loss.
(b) The attorney’s fee shall be taxed by the court where the same is heard on original action, by appeal or otherwise, and shall be taxed up as a part of the costs therein and collected as other costs are or may be by law collected. * * * *
Absent written notice, then, USAble Life’s payment of the insurance proceeds to Madams Fow and Cole would have fully discharged it from all claims under the policy. Since USAble Life opted to file an interpleader, rather than take advantage of its statutory protections under section 23-79-125, it should bear the responsibility of the additional expenses visited on the beneficiaries.
Consequently, the trial court’s award of prejudgment interest, a statutory penalty, and attorneys’ fees was not clearly erroneous. Allen v. Texarkana Public Schools, 303 Ark. 59, 794 S.W.2d 138 (1990).
Affirmed.
Glaze, Corbin and Brown, JJ. dissent. | [
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Donald L. Corbin, Justice.
Appellant, Travis Gage, appeals the denial of his motion to strike an illegal judgment. On March 19, 1990, appellant plead guilty to eight counts of burglary and eight counts of theft of property pursuant to the First Offenders Act. On March 20,1990, the trial court entered a judgment of appellant’s guilt and sentenced him concurrently to ten years on each count. Imposition of the sentence was suspended under certain conditions, including that appellant serve 104 days in the Washington County Jail. Appellant appeals contending the trial court erred in entering the judgment of guilt and in imposing an illegal sentence in excess of the maximum time allowed in jail. We reverse and remand.
Appellant argues the judgment of guilt is illegal on its face because it states that it is entered pursuant to the First Offenders Act, which specifically prohibits the entry of a judgment of guilt. The First Offenders Act provides:
Whenever an accused enters a plea of guilty. . . prior to an ajudication of guilt, the judge of the circuit or municipal court, ... in the case of a defendant who has not been previously convicted of a felony, without entering a judgment of guilt and with the consent of the defendant, may defer further proceedings and place the defendant on probation for a period of not less than one (1) year, under such terms and conditions as may be set by the court. [Emphasis supplied.]
Ark. Code Ann. § 16-93-303 (1987). Given that the judgment entered recites on its face that appellant is found guilty and sentenced under the First Offenders Act, appellee concedes that appellant was sentenced illegally. We conclude the trial court erred in entering this judgment and in denying appellant’s motion to correct an illegal judgment.
Appellant also argues that his sentence is illegal because, as a condition of his probation, the court confined appellant to the county jail for a term in excess of that allowed by the probation statute. Ark. Code Ann. § 5-4-304(c) (1987) limits the time of confinement as a condition of probation to ninety days. As a condition of his probation, appellant was required to serve 104 days, or fifty-two weekends, in the county jail. Appellee does not respond to this portion of appellant’s argument. We address it because appellant’s sentence is clearly in violation of section 5-4-304(c) and should be corrected on remand for resentencing.
The judgment entered against appellant is illegal on its face in that it enters a judgment of guilt in violation of section 16-93-303 and imposes an illegal sentence in violation of section 5-4-304(c). We reverse and remand with directions that the judgment of guilt be withdrawn consistent with the First Offenders Act and that appellant be resentenced in accordance with section 5-4-304(c). | [
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Robert L. Brown, Justice.
The appellant, Fidelity Mortgage Company of Texas, appeals from a judgment for deceit in favor of the appellee, James Martin Cook, d/b/a Cook Construction Company, in the amount of $35,538.29. The salient issue on appeal is whether the circuit judge, who tried the case without a jury, clearly erred in finding that the elements of deceit existed in this case.
We hold that the circuit judge did not err in his findings, and we affirm his decision.
The facts involve the building of a hunting lodge instigated by two men who had formed a partnership — James Cunningham and John Staggers. The partners had agreed between themselves that Cunningham would put up the land for the lodge and Staggers would arrange the financing for the construction. The original contractor for the job quit, apparently due to a problem in getting paid. Staggers then approached a second contractor, James Cook. Cook was agreeable to doing the job for $250,000 but only if he could receive assurances that he would be paid.
Staggers had had a previous business relationship with W. R. Parker, a principal with Fidelity Mortgage Company. They discussed the need for financing to build a hunting lodge, and Parker put Staggers in touch with James Trimble, a vice-president of Fidelity. Trimble faxed Staggers a letter on September 23, 1988, which stated that Fidelity “hereby agrees ... to loan up to $250,000 (new loan) at a rate of 12% per annum.” A commitment fee of $2,500 was required from Staggers. There was no statement in the letter that Fidelity would act as a broker for the loan or seek participation from other financial institutions. Staggers in turn faxed a copy of the letter to Cook’s attorney that same day.
On the following day, September 24, 1988, Cook entered into a construction contract with Staggers and Cunningham to build the hunting lodge. “Under that contract, Staggers and Cunningham were to pay Cook $150,000 after a certain part of the project had been completed. Cook began construction on September 26, 1988. During the first week of construction, Cook’s attorney called Fidelity and talked to Trimble and was assured that Fidelity would pay the money to Cook in accordance with the construction contract. Trimble also testified that during the last week in September Staggers asked him to write a letter stating that the Fidelity loan was to be used to build a hunting lodge and that payments would be made to Cook pursuant to the construction contract.
On October 11,1988, Cook submitted a bill for $150,000 to Staggers after completing the requisite part of the project. Payment was not made on that date, and Cook’s attorney advised him to stop work. Due to assurances from Trimble that payment would be forthcoming, Cook continued work on the project. Three days later, on October 14, Trimble, on behalf of Fidelity, wrote the letter that Staggers had requested in which he specifically stated that the loan was for the hunting lodge property and that payments would be made to Cook in accordance with the construction contract. By letter dated October 18, Trimble wrote Staggers that payment would be delayed because one of the trustees (later identified as W.R. Parker) was needed to approve the check, and he was out of the country.
At some point between October 17 and October 21, 1988, Cook stopped work on the project. The amount of work performed by Cook and the fact that Cook was not paid are not in dispute. Fidelity, through Trimble, finally severed its business relationship with Staggers in November or December. At that time Trimble advised Cook’s attorney that Staggers had never paid the $2,500 loan commitment fee.
Cook first sued Staggers and Cunningham for $150,000. He obtained judgment and foreclosed his lien against the hunting lodge property, thereby realizing $50,000. He collected an additional $1,004 by garnishments of Cunningham.
Cook next sued Fidelity for deceit on the basis that Fidelity misrepresented its capacity to make the loan and to pay him and further that it intentionally induced him to rely on these false representations. After the bench trial, the circuit judge found for Cook and assessed damages against Fidelity in the amount of $35,538.29, which represented Cook’s out-of-pocket expenses for the job, less the amounts received by garnishment and foreclosure.
Fidelity urges on appeal that the elements of deceit were not proven in this case and that the circuit judge clearly erred in finding that they were. We have had occasion recently to discuss the five elements of deceit, which are:
(1) The defendant makes a false representation — ordinarily, one of fact;
(2) The defendant knows that the representation is false or he does not have a sufficient basis of information to make it; that is, scienter;
(3) The defendant intends to induce the plaintiff to act or to refrain from acting in reliance upon the misrepresentation;
(4) The plaintiff justifiably relies upon the representation;
(5) The plaintiff suffers damage as a result of the reliance.
Baskin v. Collins, 305 Ark. 137, 141, 806 S.W.2d 3, 5 (1991); see also Nicholson v. Century 21, 307 Ark. 161, 818 S.W.2d 254 (1991); MFA Mutual Ins. Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981). Each element must be proven by a preponderance of the evidence in order to prove deceit. See Storthz v. Commercial National Bank, 276 Ark. 10, 631 S.W.2d 613 (1982).
a. False Representation
We have no trouble in sustaining the circuit judge’s finding of misrepresentation. Simply stated, Fidelity agreed to loan $250,000 to Staggers when its net worth totalled less than $50,000. Had there been any hint that Fidelity would act as the broker for the loan or would ask for institutions to participate in the loan, our conclusion would be different. But there was no such intimation in the loan commitment letter signed by Trimble on behalf of Fidelity on September 23. There, he stated clearly and unequivocally under a heading entitled “Commitment:”
Fidelity Mortgage Company of Texas hereby agrees to loan up to $250,000 (new loan) at a rate of 12% per annum.
This Fidelity simply did not have the capability to do.
We have noted recently that many courts now construe false representation to include “(1) Concealment of material information and (2) Non-disclosure of certain pertinent information.” Baskin v. Collins, 305 Ark. 137, 142, 806 S.W.2d 3, 5 (1991). If Fidelity did not have sufficient assets of its own as of September 23 to make the loan, Trimble should have arranged for independent financing from other institutions before writing the loan commitment letter. But he did not do this. Rather, he obligated Fidelity to make the loan while concealing insufficient net worth and knowing full well that Fidelity did not have the capability to make good on its promise.
Fidelity argues that it was not obligated to make payments because it never received the $2,500 loan fee from Staggers. In the numerous conversations and letters between Fidelity and Cook during September and October 1988, there was no mention that the fee had not been paid. Yet all during this period Trimble made verbal and written assurances on behalf of Fidelity that Cook would be paid for his work. The trial judge correctly found that this conduct constituted a false representation.
b. Scienter
Nor do we agree that Fidelity lacked the intent to misrepresent. Trimble and Parker did not reveal the net worth of Fidelity to Cook or his attorney during the critical period of construction. Nor did they indicate that the loan fee had not been paid. On the contrary, the statements of Trimble were in the nature of assurances that all was well and that the delay in payment was only due to Parker’s temporary unavailability. Only much later did the true circumstances concerning Fidelity and its relationship to Staggers come to light.
c. Intention to Induce to Act
Fidelity vigorously contends that it had no knowledge of Cook’s involvement when it issued the loan commitment to Staggers on September 23 and that Cook’s reliance on the commitment was revealed to it after the construction was virtually complete. The record, though, does not support this contention.
Cook’s attorney testified that he followed up with Trimble the first week of construction to make certain that the loan funds would be paid to Cook according to the construction contract. He was assured that they would be. Trimble recalled talking to Cook’s attorney but was uncertain about the details of the conversation. He did recall that Staggers asked him “in the last part of September” to write a letter identifying the loan with the hunting lodge property and the construction contract. Moreover, W.R. Parker testified that he knew before the commitment letter was issued that the loan would be used to build a hunting lodge.
Under such facts, we cannot say that the circuit judge’s finding that Fidelity knew from Cook’s counsel that Cook was relying on the loan commitment and doing the work because of it was clearly erroneous. As the trial judge said, the only reason to issue a loan commitment was to give assurances upon which someone will rely. Cook clearly did rely on it and Fidelity, through Trimble, knew early on in the construction that Cook was doing so.
The doctrine of transferred intent is generally not applicable in cases of misrepresentation. See Prosser and Keeton, Law of Torts, ch. 18, § 107, p. 743 (5th ed. 1984). But where a document is intended to be directed to others in addition to the immediate recipient, or where it is customary for the document to be relied upon by third parties, the doctrine of transferred intent will be applied to support a case of misrepresentation. Prosser and Keeton at p. 744. This principle furnishes legal support for the circuit judge’s finding of scienter in this case.
d. Justifiable Reliance
There is no question that Cook relied on the loan commitment. Equally as clear is the fact that Fidelity, through Trimble, knew about the construction contract and gave assurances to Cook and his lawyer that it would be paid. Neither Cook nor his attorney were alerted to the fact that anything was amiss. The trial judge’s finding of justifiable reliance is not in error.
e. Damages
That Cook was damaged in terms of out-of-pocket expenses is obvious, as the trial judge found. We have no hesitancy in affirming the trial judge’s assessment of damages in the amount of the total expenses incurred from date construction commenced on September 26, 1988, less judgment amounts previously awarded, for a net judgment of $35,538.29.
Though Fidelity asserts that damages, if any, should be calculated from October 14, when it contends the first statements alleged to be misrepresentations were made, and not from September 26, we do not find that argument to be convincing. Testimony in the record supports the circuit judge’s finding that conversations about paying Cook were had with Trimble within a few days of September 26. Moreover, it is more than reasonable to assume that Fidelity knew the purpose of the loan and was aware that those involved in the construction would be relying on the commitment letter when it was issued.
Cook, finally, moves to recover costs for supplementing what he describes as a deficient abstract. We do not agree. Fidelity’s abstract was sufficient to advise this court of the facts underlying the issues on appeal. See Goodloe v. Goodloe, 253 Ark. 550, 487 S.W.2d 593 (1972).
The decision of the trial judge is affirmed. The motion of appellee to recover costs is denied.
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Jack Holt, Jr., Chief Justice.
The appellant, Robert Findley, was convicted a second time of capital murder, and sentenced to life imprisonment without parole. On appeal, following Findley’s first trial and conviction for this oifense, we reversed and remanded for a new trial due to error in the admission of certain statements Findley made while in police custody. See Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989).
Findley now appeals from his second conviction, asserting six points of error for reversal. None of his contentions have merit and we affirm.
Since one of Findley’s arguments involves a challenge to the sufficiency of the evidence, we discuss it first.
I. SUFFICIENCY OF THE EVIDENCE
Initially, we note that we cannot, as the State urges, decide the issue of whether the evidence was sufficient to support the verdict on law of the case principles. That doctrine applies only when the evidence in the second trial does not materially differ from the evidence presented in the first trial. See Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). In the first trial of this case, the State relied heavily on three statements Findley made to the police concerning the murder. In addition, Findley testified as part of his own case-in-chief. On appeal, we ruled that although the evidence was sufficient to support the conviction, Findley’s statements should have been suppressed.
At the second trial, instead of Findley’s statements, the State offered the testimony of Jim Moore. Moore described the events surrounding the murder, as related to him by Findley, as well as both parties’ participation in disposing of the victim’s body. Findley did not testify. Although the testimony of the other witnesses in the two trials was substantially the same, the exclusion of Findley’s statements and the addition of Moore’s testimony upon retrial, varies such that we are required to examine the evidence anew.
In determining whether there is sufficient evidence to support a jury verdict, the appellate court reviews the evidence in the light most favorable to the appellee and affirms if there is substantial evidence to support it. Substantial evidence is that which is of sufficient force to compel a conclusion one way or another; it must be more than mere speculation or conjecture. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991).
Findley’s conviction for capital murder arose from his participation in the robbery and shooting death of David Phillips.
Pillips’ co-workers revealed that Phillips had given Findley $ 1,700 in cash to purchase a car for him through some contacts of Findley’s in Memphis. The teller at Phillips’ bank testified that Phillips had withdrawn $1,800 from his savings account on Wednesday, March 2, 1988, and mentioned buying a car in Memphis. Phillips told his co-workers that the car was to be delivered during his break that evening. They chided him about not having received a bill of sale and “getting ripped off.”
When the car did not arrive that evening, Phillips left work early to investigate. Findley’s ex-wife, Judy Findley Jones (they were married at the time in question), testified that she remembered Phillips coming over late one night the first week in March and discussing the car deal and the fact that “the guys at work” were teasing him about “Findley ripping off his money.”
Phillips returned to work on Thursday, March 3, and told his co-workers that “everything was fine” and he was to get the car on Friday. He was last seen at work on Thursday evening.
Phillips’ body was later discovered in a drainage ditch in Crawford County on March 24. It was tied and weighted with a concrete block and wrapped in plastic. Phillips had been shot twice in the upper chest, once in the neck, and once in the back. State Medical Examiner, Dr. Fahmy Malak, estimated that the body had been placed in the water less than 24 hours after Phillips died.
As prevoiusly stated, testimony concerning the actual murder came from Jim Moore. Moore testified that Findley came by his house around dusk on Saturday, March 5, and asked Moore to accompany him to Paragould to sell some guns. Findley drove them in his car. After stopping at a liquor store, Findley informed Moore that there were no guns and they were just taking a trip to Paragould. Findley and Moore stopped at the home of Darla Clark, in Paragould, and visited with her and a friend of Ms. Clark’s. Moore testified they drank several beers and left after a few hours.
Leaving Paragould, Findley began driving towards Bay, Arkansas, and informed Moore that “he had a body to get rid of,” and offered Moore $500 to help him. Findley told Moore the body was David Phillips and that Findley had “set up a car deal and it went sour. . . .[T] hese two guys in Memphis were supposed to rough us up and we were supposed to split the $1,700, but he (Phillips) got killed.” Moore stated Findley told him that when he and Phillips arrived in Memphis, Phillips noticed the gun Findley was carrying and asked to see it, whereupon one of the other men got the gun from Phillips, shot him, and then told Findley to “deal with it.”
Findley took Moore to an abandoned farm house where he had stored Phillips’ body in a refrigerator. The two men loaded the body in the trunk of the car and eventually deposited it in the drainage ditch. They returned to Phillips’ home in Truman, Arkansas, and moved his car to a parking lot in Bay so that “people would think he had left.” Findley then drove Moore home, arriving at approximately 2:00 a.m. on Sunday, March 6.
Moore went with Findley the next day to get a new spare tire and trunk mat. Moore testified that the old, blood stained tire and mat were thrown out alongside a country road. Moore stated Findley never paid him the $500 as promised, and that Findley had used the $ 1,700 to pay bills. This testimony was corroborated by Findley’s ex-wife who testified that Findley gave her money between March 2 and 4 to pay the rent and to have the phone reconnected. Mrs. Jones also testified that she had remarked to Findley about the disappearance of the spare tire and mat and that she had seen some green plastic in the trunk.
The Findleys’ landlord confirmed that on March 1 the Findleys were behind on their rent and on March 2 they paid $610 in cash.
An expert with the Arkansas State Crime Lab established that the bullets recovered from David Phillips’ body were fired from Findley’s gun. Findley purchased the gun from a pawn shop on March 4. Mrs. Jones testified that after Findley was arrested, he asked her to dispose of the gun shells in their apartment or to have his sister do it.
Findley argues the evidence is insufficient to support the fact that a robbery occurred at the time of Phillips’ death and thus there was no proof of an underlying felony to support a capital murder conviction.
Ark. Code Ann. § 5-10-101(a)(l) (1987) provides:
(a) A person commits capital murder if:
(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit rape, kidnapping, arson, vehicular piracy, robbery, burglary, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human
life ....
Findley contends, at most, the State’s evidence suggests that Findley committed theft or theft by deception and then several days later Phillips was killed, not immediately therafter, as provided by the capital murder statute. “A person commits robbery if, with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.” Ark. Code Ann. § 5-12-102(a) (1987).
There is ample evidence in the record to support the conclusion that Findley obtained money from Phillips for a phony car purchase and then, either acting alone or with others, killed Phillips in order to keep that money. As in the first appeal, we reject Findley’s argument that the robbery and murder had to occur within a brief interval of time. Although the robbery scheme originated earlier in the week, it culminated when Findley’s accomplice (or Findley himself) employed lethal force, either to take Phillips’ money or to ensure his silence when he asked for its return. See Hall v. State, 299 Ark. 209, 772 S.W.2d 317 (1989) (theft by receiving held to be a continuing offense), and our analogy to this case in Findley v. State (I), supra.
Findley also argues the evidence is insufficient to prove that the murder took place in Arkansas and, therefore, the trial court was without jurisdiction.
The State is not required to prove jurisdiction unless evidence is admitted that affirmatively shows that the court lacks jurisdiction. Ark. Code Ann. § 5-1-111(b) (1987). Before the State is called upon to offer any evidence on the question of jurisdiction, there must be positive evidence that the offense occurred outside the jurisdiction of the court. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978). Here, there was no positive evidence that the crime occurred in Memphis, as Findley contends. It was only through the State’s witness, Jim Moore, that the murder was linked to Memphis, and the State has never contended that Moore’s testimony should be accepted as the sole truth of what occurred.
Furthermore, it is not essential that all of the elements of the crime charged take place in Arkansas. We have said it is generally accepted that if the requisite elements of the crime are committed in different jurisdictions, any state in which an essential part of the crime is committed may take jurisdiction. Glisson v. State, 286 Ark. 329, 692 S.W.2d 227 (1985) (quoting Gardner v. State, supra). As we explained, evidence shows the robbery scheme initated in Arkansas, but culminated (if Findley’s story, as told by Moore, is to be believed) in Memphis. The trial court was correct in refusing Findley’s motion for directed verdict on the issue of jurisdiction.
Lastly, under Findley’s “sufficiency” argument, he contends the State’s own evidence proves, as a matter of law, his affirmative defense to the offense of capital murder as defined in Ark. Code Ann. § 5-10-101 (b) (1987). This argument is meritless and will be addressed under our discussion of jury instructions.
II. SPEEDY TRIAL
Findley next asserts the trial court erred in denying his motion to be released from pretrial incarceration, thereby violating speedy trial rules. We disagree.
Charges were filed against Findley on March 31,1988, and the first trial began on September 9,1988. On October 30,1989, we reversed Findley’s conviction and remanded for a new trial. The State retried. Findley on May 9, 1990.
Findley argues he should have been released on his own recognizance before the second trial, since he had been continously incarcerated for over nine months from the time the information was filed. (Findley excludes the time from September 9, 1988, the first trial date, to October 30, 1988, the date we reversed and remanded the case.)
In denying Findley’s motion, the trial court relied on Ark. R. Crim. P. 28.2 which states in pertinent part:
(c) if the defendant is to be retried following a mistrial, an order granting a new trial, or an appeal or collateral attack, the time for trial shall commence running from the date of mistrial, order granting new trial or remand.
Pursuant to this rule, the time for speedy trial purposes began running anew on October 30,1989, when we granted a new trial. See also Nettles v. State, 303 Ark. 8, 791 S.W.2d 702 (1990). There was no violation of speedy trial rules since Findley was retried in May, 1989, only seven months from the date of our order.
III. JURY INSTRUCTIONS/AFFIRM A TIVE DEFENSES
During oral argument to this court, Findley’s counsel conceded that Findley was not entitled to an instruction as to the affirmative defense for first degree murder under Ark. Code Ann. § 5-10-102(b), as the proof shows that Findley was armed with a deadly weapon during the time the offense was committed. Findley insists, however, that the trial court erred in not instructing the jury under section 5-10-101 (b), which provides that “it is an affirmative defense to [a prosecution for capital murder], in which the defendant was not the only participant, that the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid its commission.”
After hearing arguments from counsel, the trial court ruled that, based on the evidence, there was no “rational basis” for giving the instructions and that the instructions would confuse, rather than assist, the jury. The trial court’s use of the term “rational basis” tracks our language in O’Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (1989), in which we indicated there was “no rational basis” for giving the affirmative defense instruction for felony murder since there was no evidence the defendant did not kill his parents or aid in the commission of their murders.
More recently, we have said that where there is even the slightest evidence to warrant an instruction, it is error to refuse it. Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990). Under either standard, the trial court was correct in refusing the instruction.
An examination of the record, as a whole, reveals that Findley schemed to rob Phillips, brought him to the rendezvous site, obtained the gun used in the homicide immediately prior to Phillips’ death, and then made arrangements for, and participated in, the disposition of Phillips’ remains. There was simply no evidence to warrant instructing the jury that Findley did not “in any way” solicit, command, induce, procure, counsel, or aid in Phillips’ murder.
IV. CONFIDENTIAL COMMUNICATIONS ¡SPOUSAL PRIVILEGE
Findley next claims he should have been allowed to assert the husband-wife privilege in order to prevent his ex-wife from testifying as to certain confidential communicaitons between them around the time of the murder.
■ Findley presented seventeen statements to the trial court that Judy Findley Jones made at the first trial and that he argued were confidential communicaitons and should be excluded from her testimony at the second trial. The trial court examined each statement, heard arguments from counsel, and ruled that the statements Findley made to his wife, and which she repeated at trial, were either for the purpose of establishing an alibi, in which case they were intended for publication, or the statements did not comprise things Findley told his wife, but were merely things Mrs. Jones did or observed. The trial court admitted most of the statements, and suppressed others. We find the trial court’s rulings, with regard to these statements, were correct; however, one statement is worthy of comment.
Mrs. Jones testified at the first trial that following Findley’s arrest, she visited him at the county jail and he told her “to dispose of [some shells intheir apartment] or call his sister and get her to do something with them.” The trial court held the statement was not confidential since it was intended for disclosure to Findley’s sister. We agree since the communication clearly falls outside the purview of A.R.E. Rule 504, which provides that a communication is confidential “if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person.” (Emphasis added.)
V. CROSS-EXAMINATION REGARDING REFILING OF MURDER CHARGES
For his next point of error, Findley claims the trial court erred in refusing to allow him to cross-examine Jim Moore concerning the fact that Moore was initially charged with capital murder, along with Findley, and that the charge was then nol prossed, re-filed, and eventually nol prossed again. The trial court ruled that Moore could be questioned as to whether he had ever been charged with capital murder and then later charged with hindering apprehension, but barred any questions about the State’s decision to ultimately nol pross the murder charge. We find the trial court was wrong in this regard; however, Findley was not prejudiced by the trial court’s restriction of his cross-examination.
Moore testified, on cross-examination, that he had been charged with capital felony murder for the death of David Phillips and that he had eventually pled guilty to the charge of hindering apprehension for helping dispose of the body. He testified further that he was not giving testimony as the result of plea negotiations but because his testimony was the truth. This exchange was more than sufficient to call into question Moore’s credibility, as his negotiations with the State could only lead to the logical conclusion that he had made a bargain with the State which led to a lesser charge and sentence, in return for his testimony. Cross-examination should be limited to material, relevant matters before the court, and harmless errors are not grounds for reversal. Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985).
VI. CROSS-EXAMINATION REGARDING MARIJUANA
When Jim Moore was arrested for the murder of David Phillips, the police recovered marijuana from Moore’s home, pursuant to a consensual search. No charges were filed, as a result of Moore’s plea negotiations.
At trial, the court prevented Findley from cross-examining the investigating officer, Jerry Brogdan, concerning the seizure of marijuana from Moore’s home. Findley asserts this ruling was error since the information was relevant to Moore’s plea negotia tions with the State and the issue of Moore’s credibility.
The trial court reasoned that information concerning the seizure of marijuana could not be elicited from Officer Brogdon as Moore had already testified, at length, on cross-examination, that marijuana was found in his home and that the State had agreed not to press charges as part of his guilty plea to the offense of hindering apprehension. The exclusion of evidence cannot be considered prejudicial if the same evidence is introduced by another witness and was before the jury for its consideration. Hall v. State, 286 Ark. 52, 689 S.W.2d 524 (1985). We uphold the trial court’s ruling since Findley suffered no prejudice.
VII. FEE CAP
Findley’s final assertion of error is that the $ 1,000 attorney’s fee limitation, set forth in Ark. Code Ann. § 16-92-108 (1987), is unconstitutional.
We recently ruled that the fee cap for appointed attorneys in criminal cases is, in fact, unconstitutional, in Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991);however, Findley is precluded from raising the issue on law of the case principles.
The fact that the evidence was substantially different in the second trial does not prevent us, here, from deciding the issue on the law of the case doctrine since the constitutionality of Section 16-92-108 has nothing to do with evidentiary matters. Either Findley raised this issue at his first trial, and lost on appeal when we reversed and remanded the case, or Findley did not raise the issue at his first trial. The law of the case doctrine prevents consideration of arguments that were made, or could have been made, at the first trial of the case, Willis v. Estate of Adams, 304 Ark. 35, 799 S.W.2d 800 (1990), and applies to constitutional issues. See Bedell v. State, 260 Ark. 401, 541 S. W.2d 297 (1976).
Pursuant to Ark. Sup. Ct. R. 11(f), we have reviewed all other rulings adverse to Findley and find that none constitute prejudicial error.
Affirmed.
We note, and the trial court so held, that Findley’s failure to raise the husband-wife privilege at the first trial does not now bar consideration of the issue on law of the case principles. The admission of Findley’s police statements and his decision to testify at the first trial, precluded him, as a practical matter, from raising the issue. | [
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Per Curiam.
Appellant’s motion to file belated brief is granted.
Dudley and Newbern, JJ., would dissent. | [
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Robert L. Brown, Justice.
The appellant, Sarah Sue Jarboe, appeals from a dismissal of her complaint against the appellee, Shelter Insurance Company. The issue before the circuit judge and on appeal concerns the obligation of Shelter under Ark. Code Ann. § 17-30-210(c)(l) (1987) to notify the State Plant Board that liability coverage on its insured, Lake County Pest Control, had lapsed. Shelter argues that the statute does not require notice when coverage stops due to a nonrenewal and further agrees that the duty in any event is not on the carrier to give notice. We disagree and reverse.
This is a case of first impression in Arkansas, and the facts are not in dispute. Shelter was the liability carrier for Lake County Pest Control, which sprayed Jarboe’s house on September 5,1986. Jarboe alleged faulty spraying and sued the company and its owner in 1987 for $100,000 for personal injury and damage to her property. Pest Control and its owner then took bankruptcy in 1989, and Jarboe filed this action against Shelter as the liability carrier for Pest Control, though the coverage on Pest Control had lapsed due to nonpayment. Shelter moved to dismiss the complaint, and the circuit judge granted the motion and stated that Shelter “was not required to notify the State Plant Board of non-renewal.”
Jarboe’s theory for relief is that, before Shelter could terminate or cancel its insurance on Pest Control, it had a duty under state law to notify the State Plant Board and Pest Control of the cancellation. Notification did not occur. Therefore, according to Jarboe, Shelter was still liable on the policy. Jarboe points specifically to relevant language in Ark. Code Ann. § 17-30-210 (1987):
(b) INSURANCE. In addition to the bond required in subsection (a)(1), before a license is issued or renewed, each applicant for a license in either the classification of termite and other structural pests or the classification of household pests and rodent control shall furnish the board a certificate of insurance written by an insurance company authorized to do business in this state, covering the public liability of the applicant for personal injuries for not less than twenty-five thousand dollars.($25,000) for any one (1) person, and fifty thousand dollars ($50,000) for any one (1) accident and not less than five thousand dollars ($5,000) property damage.
(c) (1) CANCELLATION. The bond and insurance shall not be cancelled or terminated until at least thirty (30) days after a notice of cancellation is received by the board.
(2) Upon failure of a licensee to maintain in full force and effect the bond and insurance required by this section, the license shall become void and shall not be reinstated until a satisfactory bond and insurance have been filed.
We first address the question of whether the statute, and specifically subparagraph (c)(1), applies to cases of lapse of coverage due to nonrenewal. The circuit judge hinged his decision on the fact that this was a case of nonrenewal and “there was no requirement placed upon Shelter to notify the State Board that there had not been a renewal of the insurance.” In making his decision, the circuit judge appeared to be finding that the nonrenewal of a policy by the insured is not a cancellation by either the insured or the carrier.
Insurance companies, however, do cancel or terminate policies when a nonrenewal, lapse, or failure to pay premiums occurs. The Arkansas Court of Appeals has recognized cancellations due to nonpayment of premiums or lapse in two opinions. See McDonald v. State Farm Mutual Insur. Co., 15 Ark. App. 346, 692 S.W.2d 274 (1985); Blount v. McCurdy, 267 Ark. 989, 593 S.W.2d 468 (Ark. App. 1980). Along the same lines, a distinguished treatise on insurance law treats “cancellation” and “termination” as synonymous terms and lists both cancellation for nonpayment of premiums and termination due to nonrenewal upon expiration of the coverage as circumstances leading to termination of coverage. Keaton and Widiss, Insurance Law § 5.11(a), p. 601 (1988). Thus, to find that a nonrenewal by an insured is not a cancellation by the carrier ignores what follows after nonrenewal. When a policy is not renewed, for whatever the reason, it is necessarily cancelled or terminated by the carrier.
We turn next to consider who has the burden to notify the State Plant Board of cancellation under Ark. Code Ann. § 17-30-210(c)(1). The section is silent on this point, and we refer to context and common sense for direction. See Hutton v. Arkansas Department of Human Services, 303 Ark. 512, 798 S.W.2d 418 (1990). Shelter argues that it is impractical to require it to notify the State Plant Board concerning all companies it is not insuring. But the issue before us is somewhat different. We are concerned only with those businesses where Shelter has cancelled coverage for some reason. The number of such notices could not be that great.
Shelter further argues that it is the duty of the licensee to present a certificate of insurance each year to the State Plant Board, and there is, therefore, no responsibility on the part of Shelter to give notice that coverage has stopped. But that argument flies in the face of the clear language of the statute requiring notice of cancellation or termination to be given.
The purpose of the notification requirement is to assure that qualified licensees with insurance protection are providing pest control services so that the public will be protected. We recently noted in a vehicular collision case involving a different cancellation statute that when an innocent third party is damaged due to a negligent insured and when cancellation of the insured’s insurance affects that third party, the carrier can only cancel the policy prospectively. See Ferrell v. Columbia Mut. Cas. Insur. Co., 306 Ark. 533, 816 S.W.2d 593 (1991). The case before us is not a collision case but the same public policy protecting innocent third parties is applicable. Here, Shelter cancelled the policy without notice to the Plant Board and hence failed to give notice to the public, and Jarboe has been adversely affected as a result.
Moreover, when a licensee fails to qualify for some reason such as for lapsed insurance coverage, it is unrealistic to interpret the statute to require the licensee to give notice that it no longer qualifies to do business. The danger with this interpretation is that businesses with lapsed polices will not give notice, and the public, as a result, will go unprotected. It is more reasonable to place the notice burden on the carrier since it is clearly in the carrier’s best interest to give notice. Otherwise, the carrier runs the risk of continuing to be liable under the policy. There is also the consideration that the carrier will know exactly when the failure to renew occurs and can promptly give notice to protect itself, whereas an insured may not be immediately aware of the lapse.
We are mindful that the Pest Control Services Act requires notice of a change of address or a change in the agents or operators to be made by the insured licensee. See Ark. Code Ann. § 17-30-212(b) (1987). Yet that is markedly different from this situation where the Code is silent and the incentive lies with the carrier to give the notice. We hold that the General Assembly intended to require that the carrier give notice of cancellation, and until that is done, the policy with regard to third policies remains in full force and effect.
Reversed and remanded.
Holt, C.J., Newbern and Glaze, JJ., dissent.
David Newbern, Justice.
The statutory provision at issue in this case is, in relevant part, as follows:
17-30-210. Bond and insurance requirements.
(a) (1) Bond. Before a license is issued or renewed, the board shall be furnished an acceptable surety bond by each applicant for a licensee ....
sk * *
(b) Insurance. In addition to the bond required in subsection (a)(1), before a license is issued or renewed, each applicant for a license . . . shall furnish the board a certificate of insurance written by an insurance company authorized to do business in this state ....
(c) (1) Cancellation. The bond and insurance shall not be cancelled or terminated until at least thirty (30) days after notice of cancellation is received by the board.
The statute clearly places no obligation on anyone other than the applicant for a license to provide information to the Board.
Insurance companies have voluntarily notified the Plant Board 30 days prior to taking affirmative action to cancel the policies of licensees, but they have done nothing when the insurance has simply lapsed.
The statute provides no guidance as tt> who is to provide notice of the cessation of coverage, however denominated. Subsection (c)(2) provides:
Upon failure of a licensee to maintain in full force and effect the bond and insurance required by this section, the license shall become void and shall not be reinstated until a satisfactory bond and insurance have been filed.
As Ms. Jarboe correctly asserts, the basic rule of statutory construction, to which all other interpretive guides must yield, is that we give effect to the intent of the General Assembly. Graham v. Forrest City Housing Auth., 304 Ark. 632, 803 S.W.2d 923 (1991 ); Holt v. City of Maumelle, 302 Ark. 51, 786 S.W.2d 581 (1990); In Re Adoption of Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989). When the wording of a statute is clear and unambiguous, the statute will be given its plain meaning. Cash v. Arkansas Comm’n on Pollution Control & Ecology, 300 Ark. 317, 778 S.W.2d 606 (1989). When a statute is clear and unambigious, we do not search for legislative intent. The intention of the General Assembly must be gathered from the plain meaning of the language used. Hinchey v. Thomasson, 292 Ark. 1, 727 S.W.2d 836 (1987).
Here, there is clear expression of intent to place some reporting obligations on licensees. The statute contains no language placing a reporting duty of any kind upon any other person or entity.
Subsection (c)(2), contains no provision for notification of the Plant Board of a licensee’s failure to maintain insurance. It provides only that upon the failure of the licensee to maintain insurance the license shall become void. The Court’s conclusion that by subsection (c)(1) the General Assembly intended to place the obligation on the insurer is plainly out of step with the statutory scheme.
The Court’s opinion will require each insurer to provide information to the Plant Board about each entity to which it may once, even in the distant past, have provided insurance. To require the insurer to notify the Plant Board of a cancellation or termination of a policy on an entity to which it had extended coverage at an earlier time without placing the same obligation with respect to current coverage affords no protection to the public and seems illogical if not absurd.
Ms. Jarboe argues that the intent of the licensure procedure is to protect the public and insure that proper standards are met. She challenges the logic of a scheme which then leaves reporting a violation of the rules in the hands of the violator. If the statutory scheme could be improved, that is a matter to be addressed by the General Assembly rather than this Court. She cites no support for her intent assertion, and none is found in the statute.
The argument that the practice of insurers to notify the Plant Board of cancellations effected by the insurers should be considered in determining the meaning of the statute would be attractive but for Ark. Code Ann. § 17-30-212 (1987):
Transferability — Change in licensee status.
(a) No license or registration shall be transferable.
(b) When there is a change in the status of a licensee, such as change of address, operator in charge, agents or solicitors, the licensee shall immediately notify the board of the changes.
The Court’s opinion concludes that the duty to notify the Board of a change in status is limited to those specifically stated, a change of address, operator in charge, agents or solicitors, and that this duty on the licensee, is “markely different from this situation where the Code is silent and the incentive lies with the carrier to give the notice.” The insurer would have an incentive to notify the Board of the termination and such a requirement would be upheld if it were required by the statute, but it is not. The provision that the insurance “shall not be cancelled or terminated until at least thirty days after a notice of cancellation is received by the board,” does not specifically place a duty on either party. It appears between two other subsections, (b) which imposes a duty on the licensee to furnish a certificate of insurance, and (c)(2) imposing a sanction on the licensee for failure to maintain the insurance in effect, that is, voiding the license.
Judicial restraint requires that we not rewrite a statute. The penalty being assessed upon the insurer by this Court for failure to comply with a nonexistent requirement is being manufactured from whole cloth. There is no provision forcing the insurance company to continue coverage, and we should not legislate such a penalty.
I respectfully dissent.
Holt, C.J., and Glaze, J., join in this dissent. | [
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Robert H. Dudley, Justice.
William P. Schmidt, the eleven-year-old son of Alice Schmidt, lost the sight of his right eye as the result of a fireworks explosion. Alice Schmidt, in her capacity as William’s natural guardian, filed suit against Arnold Fireworks Display, Inc., Arnold Fireworks, Inc., and Ray Sexton, Jr., alleging they sold the errant bottle rocket to the eleven-year-old boy in June 1990, and they incurred liability since Ark. Code Ann. § 20-22-712 (1987) makes it unlawful to sell fireworks to a child under twelve (12) years of age.
The complaint was filed on October 10, 1990. Service on separate defendant Sexton was had on October 17,1990. He filed a timely answer on November 5, 1990, in which he stated:
3. The defendant did not sell fireworks to William P. Schmidt in 1989 or 1990.
4. The defendant, Ray Sexton, Jr., did not sell fireworks to anyone in 1989 or 1990.
5. The defendant did not sell nor purchase fireworks in any form or fashion even for use by himself or family members in 1989 nor 1990, therefore selling to William P. Schmidt would have been impossible.
Service on the separate defendant corporations was had on October 20,1990. Two (2) days later, on October 22,1990, copies of the complaints were forwarded to the defendant corporations’ insurance agent in Birmingham, Alabama. The agent received the copies of the complaints on October 24, 1990, but timely answers were not filed for the defendant corporations. Their answers were not filed until November 16, 1990.
The plaintiff moved to strike the corporations’ answers. They responded that separate defendant Sexton’s answer was a common answer for all defendants. The plaintiff replied that defendant Sexton’s answer was not a common answer and moved for default judgments against the corporate defendants. The corporate defendants amended their answers. The plaintiff moved to strike the amended answers and for default judgments against the corporate defendants.
The trial court struck the corporate defendants’ answers and amended answers and granted default judgments against them as to liability. The corporate defendants moved to set aside the default judgments and argued that ARCP Rule 55(c), as amended February 1, 1991, alleviates the harshness of our old rule and now makes mistake or inadvertence grounds to set aside a default. However, they did not offer any meaningful evidence of mistake or inadvertance. The trial court did not rule on the motion to set aside the default judgments within thirty (30) days, and the corporate defendants gave notice of appeal. We affirm the rulings of the trial court.
We are first faced with the question of whether the corporate defendants can appeal. The judgment against them is not a final judgment for two reasons: First, it determined only liability. The trial court reserved for trial the amount of damages. Second, there are three defendants, and the trial court granted the default judgments against only two (2) of them. Ark. R. App. P. 2(a) (1) provides that an appeal may be taken only from a final judgment and, in addition, we have often held that where one or more, but fewer than all, of the defendants were dismissed, it was not a final and appealable order. See, e.g., St. Paul Fire & Marine Ins. Co. v. First Commercial Bank, 304 Ark. 29, 801 S.W.2d 652 (1991); ARCP Rule 54(b). Conversely, Ark. R. App. P. 2(a)(4) expressly provides for an appeal in this situation: “An appeal may be taken from ... an order which strikes out an answer, or any part of an answer, or any pleading in an action.” We hold that the specific provision for appeal when an answer is stricken must control over the general provisions contained in Ark. R. App. P. 2(a)(1) and ARCP Rule 54(b).
The general purpose of Ark. R. App. P. 2(a)(1) is to prevent piecemeal appeals while portions of the litigation remain unresolved. Quite differently, Ark. R. App. P. 2(a)(4) which allows a piecemeal approach can be traced back to Section 15 of the Civil Code of 1871, which provided:
The Supreme Court shall have appellate jurisdiction over the final orders, judgments and determination of all inferior courts of the State in the following cases and no other:
First: . . .
Second: . . . or when such order strikes out an answer, or any part of an answer, or any pleading in an action;. . .
This provision is not unique to Arkansas. For example, South Carolina has an almost identical statute, S.C. Code Ann. § 14-3-330(2)(C) (Law. Co-op. 1977), which provides that an appeal may be taken when an order “strikes out an answer or any part thereof or any pleading in any action.” A South Carolina case suggests that at the turn of the Century the reason given for such a statutory provision was that an appeal based on an asserted error of law, but not of fact, should be heard in a piecemeal fashion. Harbert v. Atlanta & Charlotte Air Line Ry. Co., 53 S.E. 1001 (1906). Accordingly, we hold that Ark. R. App. P. 2(a)(4) authorizes an appeal when an answer has been stricken, even if it is not a final judgment.
The plaintiff argues that the case of Sevenprop Assoc. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1988) mandates dismissal of this appeal. We reject the argument, because no answer was stricken in that case.
On the merits of their appeal, the corporate defendants first argue that separate defendant Sexton’s timely answer inures to their benefit. They rely primarily on a case from the court of appeals, Firestone Tire & Rubber Co. v. Little, 269 Ark. 636, 599 S.W.2d 756 (Ark. App. 1980). Their reliance on that case is misplaced. There, one defendant timely filed a general denial. By contrast, in this case separate defendant Sexton did not deny that the accident occurred or that the injury occurred or that negligence had occurred. He only denied that he took any part in the occurrence and that he was the person who sold the bottle rocket. In Southland Mobile Home Corp. v. Winders, 262 Ark. 693, 694, 651 S.W.2d 280, 280-81 (1978), we wrote:
The true test is whether the answer of the non-defaulting defendant states a defense that is common to both defendants, because then “a successful plea . . . operates as a discharge to all the defendants but it is otherwise where the plea goes to the personal discharge of the party interposing it.”
Here, separate defendant Sexton’s defense was personal to him. It was not a defense in common with the separate corporate defendants, and did not inure to their benefit. Accordingly, the trial court did not err in refusing to set aside the default judgment on the basis that a timely common answer was filed.
The corporate defendants next argue that the default judgments against them should be set aside because of mistake or inadvertence. We summarily dispose of the argument, since the record does not give any reason for the failure to file timely answers. While the amended version of ARCP Rule 55(c) is designed to provide some relief from the onerous consequences of our prior rule, we did not intend to render meaningless the requirement that an answer must be filed within a set time. The trial court did not err in refusing to set aside the default judgment because of mistake or inadvertence.
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Steele Hays, Justice.
When Albert and Judy Womack divorced in 1985 Albert Womack was ordered to pay $425 per month to Judy Womack as permanent alimony “in lieu of her right to receive said amount as a distribution of marital prop erty.” The amount was one-half of Albert Womack’s military disability compensation paid pursuant to 10 U.S.C. §§ 1201 and 1202 (1986) and 38 U.S.C. §§ 3104 and 3105 (1981).
From November 1988 through December 1990 Albert Womack paid nothing to Judy Womack and in July 1990 she petitioned the chancery court to find Albert Womack in contempt. He responded that he had received no income other than disability compensation during the period involved which, he contended, was not subject to division or alimony. Albert Womack moved to modify the award on the grounds that disability income is not subject to division or to an award of alimony.
The chancellor denied the motion to modify, found Mr. Womack in contempt and awarded Mrs. Womack a judgment for an arrearage of $ 19,402.25. On appeal Albert Womack contends his military disability retirement benefits are not divisible or payable to Mrs. Womack for alimony purposes. Finding no error, we affirm the order appealed from.
Mr. Womack reasons that because the chancellor looked only toward his disability pay and awarded alimony in lieu of a property division, the chancellor in actuality made a property division of his disability benefits in violation of the provisions of the federal Uniformed Services Former Spouses’ Protection Act [10 U.S.C. § 1408 (1982 ed. and Supp. V)] (FSPA). The FSPA excludes such benefits from division in divorce where the retiree has waived military retirement pay in order to receive disability benefits, leaving state courts free to divide only “disposable” retirement pay in divorce suits. Mansell v. Mansell, 490 U.S. 581 (1989).
But we are not persuaded that simply because the order recites “in lieu of her right to receive said amount as a distribution of marital property” the chancellor made a property division in violation of the FSPA. The words are at most ambiguous and that being so we will presume them to be in conformity with the FSPA. Pelham v. The State Bank, 4 Ark. 202, 4 Pike 202 (1842). Where a judgment is ambiguous, it is the legal effect, rather than the mere language used, that governs. Magnolia Petroleum Co., et al. v. Caswell, et al., 295 S.W. 653 (Tex. Ct. App. 1927). Moreover, whether the chancellor looked only to Mr. Womack’s disability benefits in awarding alimony some six years ago is not discernible from this record and inferences to be drawn from a judgment or decree are not dependent on express words. Norrell v. Coulter, 218 Ark. 870, 239 S.W.2d 280 (1951). While it is plain the chancellor took note of the disability benefits paid to Mr. Womack, the fact is he made an award of alimony and nothing more — he did not order a division and did not direct that alimony be withheld from Mr. Womack’s benefits — and we do not think the gratuitous comment which accompanied the award converts it from alimony to a division of property.
We settled this issue for all practical purposes not long ago in Murphy v. Murphy, 302 Ark. 157, 787 S.W.2d 684 (1990). In Murphy we recognized that the FSPA excludes disability benefits from division or alimony in divorce and that one spouse is not entitled to direct payments for alimony under the FSPA. However, we said that does not prevent a chancellor from awarding alimony, nor does it mean that a military retiree is relieved of the payment of alimony. For similar holdings see In re Marriage of Kraft, 808 P.2d 1176 (1991); Jones v. Jones, 780 P.2d. 581 (Hawaii App. 1989). We believe the holding in Murphy v. Murphy was correct and we have no inclination to overturn it.
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H. Maurice Mitchell, Special Chief Justice.
This case involves three animal control ordinances adopted by the City of Maumelle. The first ordinance was adopted on June 16, 1986. Section 19 of the first ordinance prohibited the keeping of a dog substantially conforming to standards set by two kennel clubs as to certain breeds, including American Pit Bull Terrier, and Section 24 empowered an enforcement officer to enter upon any premises for the purpose of seeing an animal prohibited by the ordinance.
Steele Holt was charged with the keeping of a dog prohibited by the first ordinance. He filed suit in the Pulaski County Circuit court in 1987 against the city and its animal control officer for a judgment declaring the first ordinance invalid. This suit was settled. On March 25,1988, Holt executed a release for all claims which he may have against the city and its directors, agents and employees in consideration of the repeal of Section 19 and 24 of the first ordinance and the payment of the sum of $2,000 to his attorney. On April 4,1988, the city adopted the second ordinance which amended Section 19 of the first ordinance by eliminating all reference to dogs and amended Section 24 of the first ordinance by eliminating the power of an enforcement officer to enter upon any premises without notice. The second ordinance provided that it would become effective thirty days after its adoption.
The city adopted the third ordinance on May 2,1988, which became effective upon its passage and publication. The third ordinance amends the first and second ordinances. Section 7 of the third ordinance prohibits the keeping of certain breeds of dogs, including American Pit Bull Terrier, within the city. Holt, the owner of an American Pit Bull Terrier and a resident of Maumelle, filed suit in the Pulaski County Circuit Court against the city, members and former members of the city board of directors in their official capacity and individually. He sought a judgment declaring Section 7 of the third ordinance unconstitutional and awarding compensatory and punitive damages and attorneys’ fees against the defendants under Section 83 and 88 of Title 42 of the U.S. Code. The defendants filed a motion for summary judgment. The lower court entered an order granting this motion and dismissing the suit. Holt appeals from this order. The order is affirmed.
For reversal, the appellant contends that the granting of the motion for summary judgment was improper because material issues of fact existed. He urges that questions of fact remained as to (1) the vagueness of Section 7 of the third ordinance, (2) the impermissible classification of American Pit Bull Terrier or “Pit Bull” as a breed banned under that section, and (3) an alleged breach of contract.
First, we examine Section 7 of the third ordinance to see if it violates due process of law by being impermissibly vague. This section reads as follows:
SECTION 7. BANNING OF SPECIFIC BREEDS: “Banned Breeds or Dogs” are banned entirely and may not be owned or kept within the City of Maumelle, Arkansas. “Banned Breeds or Dogs” are defined as any one of the following:
A. American Pit Bull Terrier;
B. Staffordshire Bull Terrier;
C. American Staffordshire Terrier;
D. Any dog whose sire or dam is a dog of a breed which is defined as a banned breed or dog under Section 7; Subsections A, B, C, E, F, G, or H of this Ordinance;
E. Any dog whose owner registers, defines, admits, or otherwise identifies said dog as being of a banned breed;
F. Any dog conforming, or substantially conforming, to the breed of American Pit Bull Terrier, American Staffordshire Terrier, or Staffordshire Bull Terrier as defined by the United Kennel Club or American Kennel Club; or
G. Any dog which is of the breed commonly referred to “pit bull” and commonly recognizable and identifiable as such;
H. Any vicious dog which is found at large in violation of Section 5 of Ordinance 36.
Provisions similar to Section 7 have withstood a challenge as to vagueness in the following cases: Hearn v. City of Overland Park, 772 P.2d 758 (Kan. 1989); State v. Peters, 534 So. 2d 760 (Fla. Dist. Ct. App. 1988); and Garcia v. Village of Tijeras, 767 P.2d 355 (N.M. Ct. App. 1988).
In our view, appellant places overly strict interpretation upon the constitutional requirement for clarity in defining conduct prohibited by a criminal law. The Supreme Court of the United States, in its opinion in United States v. Petrillo wrote:
That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is not sufficient reason to hold the language too ambiguous to define a criminal offense. . . . The Constitution has erected procedural safeguards to protect against conviction for crime except for violátion of laws which have clearly defined conduct thereafter to be punished; but the Constitution does not require impossible standards.
United States v. Petrillo, 332 U.S. 1, 7 (1946). We believe that a person of ordinary intelligence is placed on sufficient notice by Section 7 to reasonably determine the prohibited conduct.
Next, we refer to appellant’s contention that Section 7 unconstitutionally includes American Pit Bull Terrier and “Pit Bull” within the classification of banned breeds. A similar argument was raised and rejected in the first three cases cited above. The opinion in Hearn, at 768, quotes from the case of McQueen v. Kittitas County, 115 Wash. 672, 198 P. 394 (1921), as follows:
‘[Sjince dogs are a subject of the police power, we see no reason why the legislature may not make distinctions between breeds, sizes, and the localities in which they are kept. The object of the statute is protection. The purpose is to prevent injuries to persons and property by dogs. Any distinction, founded upon reason at least, is therefore valid. . . .’
115 Wash, at 678, 198 P. at 394 (emphasis added).
The appellant insists that disagreement exists as to whether the American Pit Bull Terrier and “Pit Bull” can be justifiably singled out and banned. Even though some experts may argue that these breeds should not be banned by municipalities, we hold that the city had a reasonable basis for including them in the class defined in Section 7.
Finally, the appellant contends that the adoption of the third ordinance breaches the contract which he had with the city in the settlement of the prior litigation relating to the first ordinance. The release which the appellant executed stated that it was in consideration of the repeal of the section of the first ordinance prohibiting the keeping of three named breeds, including American Pit Bull Terrier. The release also contains the following wording:
I acknowledge that the City of Maumelle makes no representation, concerning any other Ordinance or any action, repeal, reenactment, amendment or procedure which it may or may not adopt in the future with respect to this or any other Ordinance except as specifically provided for hereinabove. [Emphasis added.]
The appellant interprets the emphasized language to mean that the city would never reenact any ordinance prohibiting the keeping of an American Pit Bull Terrier or a “Pit Bull.” We do not agree. We believe that if we were to adopt the appellant’s interpretation, the contract would violate public policy. The board of directors of a city does not have authority to contract away its legislative powers. The possession of these powers carries with it the duty to act in the public’s interest. This duty is breached when a legislative body limits its power to render public service. Contracts involving such a breach are contrary to public policy and void.
In ruling that a contract for a lobbying fee contingent upon the passage of legislation was void, this court said:
It follows from what has been said above that all agreements whose object or tendency is in any way to interfere with, or unduly influence, legislative action, either by congress, by a state legislature, or by a municipal council or other like body, are contrary to public policy and void.
Page v. McKinley, 196 Ark. 331, 338-39, 118 S.W.2d 235, 239 (1938) (quoting 113 C.J., p. 430, § 368).
We disagree with the contentions on which the appellant relies for reversal; therefore, the order of the lower court in granting summary judgment and dismissal is affirmed.
Affirmed.
Special Justice Christopher Heller joins in this opinion.
Holt, C.J., and Corbin, J. not participating. | [
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Tom Glaze, Justice.
This case involves the question of whether a circuit court has the jurisdiction to order payment of a judgment from a guardianship bank account. Huey Forehand is mentally handicapped, and his mother, Ann Forehand, is the court-appointed guardian of his assets, including his account at the Bank of Dover (the Bank). The appellee filed its Oklahoma judgment against the appellant in the Pope County Circuit Court. The court subsequently issued a writ of garnishment on the Bank, and the Bank responded stating that it owned funds belonging to the ward that could only be removed by order of the probate court. Upon the appellee’s application, the circuit court issued an order directing the garnishee Bank to pay the funds. The appellant then filed a motion to set aside the order, which was denied by the court.
On appeal, the appellant argues that the circuit court’s ordering the Bank to pay the ward’s money was erroneous for the following two reasons: 1) the probate court had exclusive jurisdiction of the use of the ward’s funds; and 2) the ward’s funds held by the probate court were not subject to garnishment. We find merit in the appellant’s arguments and therefore reverse.
Probate court has exclusive jurisdiction over all matters of guardianship, other than guardians ad litem in other courts. Ark. Code Ann. § 28-65-107(a) (1987). A guardian is under a duty to pay from the estate all just claims against the estate of his ward. Ark. Code Ann. § 28-65-317(a)(1) (1987). Provision (b) of § 28-65-317 provides that upon petition of any person having a claim against the estate of a ward or demand against the estate, “the court, after notice, upon appropriate hearing, may direct the guardian to pay the claim.”
This court has recognized that a claimant against a ward’s estate could file his or her suit in circuit court instead of probate court. First State Bank v. Thessing, 241 Ark. 150, 406 S.W.2d 865 (1966). But, in Thessing, we did not address whether the circuit court could order payment by the probate court. In Galion Iron Works & Manufacturing Co. v. Russell, 167 F. Supp. 304 (W.D. Arkansas 1958), the federal court addressed a situation similar to the case at bar. In that case, the plaintiff had already established a claim against the ward’s estate that was not contested and sought to enforce that claim against the estate in federal courts. In commenting on how claims are to be brought against guardianships, the federal court stated the following:
State or federal courts may entertain suits to adjudicate claims against an estate, and those adjudications must be respected by the probate court, but it is nevertheless only the probate court which can allow such claims. . . .
Thus, this court might adjudicate a claim against he estate, and if it did so, that adjudication could be presented to the probate court for allowance. But here the claim against the estate has been adjudicated and reduced to judgment, the validity and amount of which is admitted. The plaintiff is asking not that this court adjudicate its claim against the estate, but that this court, in effect, make an allowance in the form of a garnishment on the basis of the plaintiffs judgment, and then, on the ground that funds are in its possession, proceed to make a distribution. . . . (T)he probate court unquestionably acquired prior jurisdiction to allow claims against the incompetent by virtue of its prior jurisdiction over the incompetent and his estate. . . .
The Galion court’s foregoing recitation is a correct reflection of this state’s probate statutory procedures in these matters. A circuit court may establish claims against a ward’s estate, but only the probate court has jurisdiction over the payment of those claims. Thus, once a claim has been established in another court as was the situation here, the prevailing party must then file the adjudicated claim in the probate court. Our recent opinion in In Re Porter, 298 Ark. 121, 765 S.W.2d 944 (1989), is in accord. In Porter, this court recognized that the circuit court had the power to review and conclude whether the money in a CD held in a guardianship account was accessible to the guardian for the purpose of reimbursement. However, we further stated that this did not mean that the circuit court has the authority to determine how a guardian is to use a ward’s funds. Instead, the probate court has exclusive jurisdiction to govern the release of funds in the guardianship account. Id.
In addition, we also find support for the appellant’s argument that the funds in the guardianship account were not subject to garnishment. In Gill v. Middleton, 60 Ark. 213, 29 S.W. 465 (1895), this court held that an administrator of an estate was not subject to garnishment. Again in Galion Iron Works and Manufacturing Co. v. Russell, 167 F. Supp. 304, the federal court cited Gill and other Arkansas cases and concluded as follows:
From the cases cited it is clear that under Arkansas law, claims such as presented by the plaintiff here as an equitable garnishment are claims which must be administered through the Arkansas probate courts, and the courts of general jurisdiction are refused the power to upset the administration of estates and to allow the priorities of claims against estates to be circumvented by a garnishment proceeding, and this applies no less to equitable than to legal garnishments.
In sum, the probate court has exclusive jurisdiction over the payment of claims against the ward’s account, and the circuit court was in error in ordering payment. While appellee acted properly in filing and establishing its foreign judgment in circuit court, it then was required to file its claim in the probate court to receive payment.
For the reasons stated above, we reverse, holding the circuit court erred in ordering the Bank to pay appellant’s guardianship account funds to the appellee.
The Bank of Dover is now the First Bank of Arkansas. | [
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David Newbern, Justice.
This is a slip and fall case in which the jury returned a verdict for thirty-four thousand dollars against the appellant, the Bank of Malvern. The Bank argues the evidence was insufficient and a verdict should have been directed in its favor. We find the evidence insufficient and reverse and dismiss. The Bank raises other issues concerning the admissibility of certain statements and photographs, but a discussion of them is unnecessary in light of our resolution of the first question.
The appellee, Jammie Dunklin, entered the east entrance of the Bank a few minutes after it opened at nine o’clock in the morning. At that time, it was raining. Dunklin proceeded through the doors leading into the lobby, and after taking a few steps, she fell and broke her arm. Dunklin testified her feet hit something slick causing her to fall, but she did not see the substance. Dunklin assumed the substance was water because after the fall she was lying in something wet. Dunklin could not remember whether her clothes were wet when she got up because she was in so much pain. None of the other witnesses who testified remembered seeing any substance on the floor the morning of the accident.
Brenda Weldon was an employee of the Bank whose desk was located near the east entrance where Dunklin fell. She testified employees arrived at work beginning at eight o’clock, and usually five or six employees entered the Bank through the east entrance. Weldon remembered only one customer entering the Bank before Dunklin the morning of the accident.
A motion for a directed verdict should be granted only if there is no substantial evidence to support the verdict. On appeal from a denial of a directed verdict, the Court views the evidence in the light most favorable to the party against whom the verdict is sought and gives it the highest probative value. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). Substantial evidence has been defined as being of sufficient force and character to compel a conclusion one way or another. It must force the mind to pass beyond suspicion or conjecture. Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991).
A property owner has a general duty to exercise ordinary care to maintain his or her premises in a reasonably safe condition for the benefit of invitees. Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989). See also AMI Civil 3rd, 1104. The burden of establishing a violation of this duty in a slip and fall case is well established. A plaintiff must show either: 1) that the presence of a substance upon the premises was the result of the defendant’s negligence, or 2) that the substance had been on the premises for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986). See also AMI Civil 3rd, 1105.
Under the first part of the standard, the Bank argues there was insufficient evidence that a substance was on the floor as a result of their negligence. Dunklin could only speculate that the substance which caused her fall was water. She did not see the sbustance before she fell and only believed it was water because she felt something wet beneath her. Furthermore, there was no substantial evidence regarding how the substance came to be on the lobby floor. Dunklin believed water was brought inside on the clothes or shoes of a customer or employee and that it accumulated on the floor causing her to fall. This testimony was speculative and insufficient to show there was a substance on the floor due to the Bank’s negligence. In Safeway Stores, Inc. v. Willmon, supra, the Court stated “possible causes of a fall, as opposed to probable causes do not constitute substantial evidence of negligence.”
The Bank next contends, under the second part of the standard, that there was insufficient evidence that a substance remained on the floor for such a length of time that its employees were or should have been aware of its existence and failed to exercise ordinary care to remove it. We have recognized the length of time a substance is on the floor is a key factor. The burden is on the plaintiff to show there is a substantial interval between the time the substance is placed on the floor and the time of the accident. Johnson v. Arkla, Inc., supra.
Here, there was insufficient evidence that a substance had been on the lobby floor for such a substantial period that the employees knew or should have known of its existence. There is a possibility that an employee brought water in when coming to work at eight o’clock that morning. It is equally possible that Dunklin herself brought water in when she entered the Bank. There was no evidence from which a jury might determine without speculation or conjecture how the substance got on the floor or how long it remained there prior to the accident. Skaggs Co. v. White, 289 Ark. 434, 711 S.W.2d 819 (1986).
Dunklin cites Wal-Mart Stores, Inc. v. Kelton, supra, in support of the judgment. In that case, the appellee slipped and fell on water which had accumulated between the checkout counter and the exit door of the store. As in the present case, it was raining the morning of the accident. Kelton fell approximately two hours after the store opened. Other witnesses identified the substance as water and testified the water had foot tracks through it. Also, a Wal-Mart employee stated most employees used the exit door to enter and leave the store. A witness testified a tile was missing from the store ceiling and another said a drop of water hit her face while in the store. After the fall, Kelton left the store and returned later to find the water still on the floor. Based on this evidence, the Court held the jury could infer water collected inside the building for an undue period of time and failure to remove it was negligence.
Wal-Mart Stores, Inc. v. Kelton, supra, is clearly distinguishable. There was no evidence in the present case that there were foot tracks through the water in the Bank lobby which might lead to the inference that employees had walked through the water and ignored the danger it presented. Also, in the Kelt on case, the store was open more than two hours before the accident occured, thus leading to the conclusion that employees had time and opportunity to notice the water. Here, there was no evidence whatever of a substance on the floor prior to the time the Bank opened for business. The accident occured only a few minutes after the Bank doors opened to customers which would leave very little time to notice a substance on the floor which might have been brought in by them. There was no evidence of a leak in the Bank ceiling which might indicate the Bank knew or should have known of water accumulation on the floor.
Reversed and dismissed. | [
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Ray S. Smith, Jr., Special Justice.
On January 30, 1989 Thomas B. Goldsby, Jr., and Mid-South Mortgage Company, Inc. (hereinafter referred to as appellees), filed a complaint in the Chancery Court of Crittenden County seeking an accounting, a declaratory judgment, rescission, a preliminary injunction, and restitution. Included in the allegations of the complaint were assertions that the stock sale agreement at issue was obtained by appellants as a result of unfair advantage, duress, overreaching and without consideration.
On February 20,1989, the appellants filed two motions. The first was a motion to extend the time for an answer and the second, a motion to require the appellees to comply with Ark. R. Civ. P. 9(b) to make their allegations more definite and certain. The appellants’ prayer also asked that the complaint be dismissed for failure to comply with Rule 9(b).
Both parties filed additional motions. The Court held a hearing on March 14, 1989, with all parties present. He subsequently entered an order scheduling depositions to begin on April 17, 1989, and gave appellees 30 days in which to amend their pleadings, stating with particularity the facts of coercion, duress and other matters. On April 7,1989, the appellees filed a motion to dismiss without prejudice under the provisions of Ark. R. Civ. P. 41(a).
On April 18, 1989, the appellants responded to the motion requesting that the Court dismiss with prejudice and for other sanctioned relief. On July 19, 1989, another hearing was held. After hearing the arguments of counsel the Court asked for authorities from the various counsel. A final hearing was held on November 22,1989, at which all counsel were present, and after argument, the Court entered its order holding in paragraphs 4 and 5 as follows:
4. The court disagrees and concludes that it is bound by the recent decision of the Arkansas Supreme Court which states that the right to a voluntary nonsuit is absolute.
5. The court further finds that sanctions should not be imposed and are not warranted because after the complaint was filed and in response to a motion to dismiss filed by the defendants, counsel for plaintiffs stated that she needed to review the basis for plaintiffs’ claims for fraud and conflict of interest and upon review filed a motion for nonsuit.
The Court also authorized the appellants to submit further evidence but acknowledged it was not changing its opinion, nor would it consider the exhibits. From this order, the appellants appealed, and we now affirm the Chancellor.
In the case now before us, within a 67 day period there was a complaint filed, motions filed to make more definite and certain and for taking of depositions, for which notice was given, and a motion to dismiss. Appellants raise two questions:
(1) Is the right of a voluntary nonsuit under Ark. R. Civ. P. 41 mandatory?
(2) How does Ark. R. Civ. P. Rule 11 apply where a voluntary nonsuit has been filed?.
We have held in both Duty v. Watkins, 298 Ark. 437, 768 S.W.2d 526 (1989), and Brown v. St. Paul Mercury Ins. Co., 300 Ark. 241, 778 S.W.2d 610 (1989), that a voluntary nonsuit is an absolute right prior to final submission to a jury or to the court sitting as a jury, and in accordance with other conditions therein. The matter of the applicability of sanctions was fully reviewed and discussed in Bratton v. Gunn, 300 Ark. 140, 777 S.W.2d 219 (1989).
In Bratton v. Gunn, supra, suit was filed alleging that an insurance agent had accepted premiums but did not obtain insurance coverage. This was denied by the agent, who subsequently filed a motion for summary judgment, attaching affidavits and documentary evidence as exhibits. No response to the motion for summary judgment was filed and, on the day before hearing, the appellee (plaintiff below) filed for and obtained a voluntary nonsuit. Shortly before the nonsuit was entered, the appellant (defendant below) filed a motion for Ark. R. Civ. P. Rule 11 sanctions, to which were attached an affidavit and other exhibits. Both parties appeared before the Trial Court for a hearing on the Rule 11 motion. No testimony was taken, no exhibits were introduced, and no record was made of the proceedings. The Trial Court entered its order in which it held that the motion for Rule 11 sanctions was without merit and that sanctions should not be granted.
Bratton v. Gunn, supra has many similarities to the case at bar in that no testimony was taken, no evidence was introduced and, although a record was made of the hearing, it was only argument of counsel. There we held that the imposition of sanctions is a serious matter to be handled with circumspection and that the Trial Court’s decision was due substantial deference. We also held that whether a violation of Rule 11 has occurred is a matter for the Court to determine and that while it involves matters of judgment and degree, it requires the Trial Court to consider evidence, which should be presented by the moving party alleging the violation of Rule 11. We concluded that, though there may have been sufficient conduct of the plaintiffs attorney to warrant a finding that Rule 11 was violated, the record did not reflect any evidence to substantiate such claim.
The burden is on the moving party to demonstrate error and to bring up a record which so demonstrates. RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). When the appellant does not demonstrate error, we affirm. In neither the Bratton case, nor in the case on appeal herein, were exhibits introduced or testimony taken. A record was made in this case, as distinguished from the Bratton case, but the record was only on the arguments of counsel. There was no evidence introduced before the Court.
The Trial Court held that it was granting the motion for nonsuit and further held that it did not feel this was the type case to which Rule 11 should apply and for which sanctions should be granted. The appellants have presented nothing which would support a conclusion that this ruling was in error, including the correspondence placed into the record after final determination. Under the circumstances of this case, as reflected by the lack of any proof that the appellees had no factual basis for allegations of the complaint and the absence of properly pled Statute of Limitations defense, the Trial Court did not err in finding that Rule 11 sanctions were not warranted.
This Court cannot and does not give advisory opinions, so the request of the appellants that such be done must be denied. The Arkansas Rules of Civil Procedure are for the benefit, not only of attorneys but, more specifically, for the administrative procedures of the trial courts. Rule 11 is no exception, and under Arkansas law, though sanctions can be imposed and costs levied where the trial court feels it is warranted, such sanctions are not an arbitrary right, nor do they create an additional right in favor of either party.
Affirmed.
Special Justices Ted Boswell and Gregory G. Smith join in this opinion.
Háys, Glaze, Corbin and Brown, JJ., not participating. | [
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Per Curiam.
The appellant George Willis was convicted in the Circuit Court of Columbia County of possession of cocaine and sentenced to life imprisonment. His co-defendant Robert Bogard was sentenced to forty years imprisonment. Appellant’s appointed attorney Clyde Lee tendered the record to this court in an untimely manner on April 10,1991. We granted a motion for rule on the clerk in the case, and appellant’s brief was due for filing June 8,1991. When no brief was received by September 18, 1991, the clerk informed counsel by letter of the need to take some action in the case. As of this date, counsel has not tendered the brief. Appellant Willis has now filed a motion for appointment of counsel, asking that another attorney be appointed to represent him on appeal. Willis contends that counsel was angry at being appointed to the case and will not pursue the appeal seriously for that reason. He further asks that if this court declines to relieve Clyde Lee as counsel, that he be allowed to file a pro se supplemental appellant’s brief.
The motion to relieve Mr. Lee as counsel is denied because appellant has not offered facts sufficient to demonstrate that there is a conflict of interest between him and counsel such that counsel cannot provide the effective assistance of counsel guaranteed by the Sixth Amendment. See Strickland v. Washington, 466 U.S. 668 (1984). Counsel has been directed by Per Curiam Order to appear on Monday, January 13, 1992, at 9:00 a.m. to show cause why he should not be held in contempt of this court for failure to file a timely appellant’s brief in this case. If information is adduced at that proceeding which indicates that counsel cannot provide effective assistance of counsel on appeal, appellant Willis’ motion will be reconsidered.
Appellant’s request for permission to supplement the brief to be filed by counsel is denied as premature. If after reviewing counsel’s brief when it is filed, appellant desires to supplement it, he may at that time file a motion to supplement, citing any specific deficiency in counsel’s brief. Wade v. State, 288 Ark. 94, 702 S.W.2d 28 (1986).
Motion denied. | [
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Per Curiam.
On August 6, 1990, attorney John W. Hall filed a motion in this court for a belated appeal on behalf of Rodney McDuffie on the ground that attorney Chris Mercer, who represented McDuffie at trial, had failed to file a timely notice of appeal from McDuffie’s conviction for possession with intent to deliver cocaine. The motion alleged that after the expiration of the time for filing notice of appeal, McDuffie hired Mr. Hall, paid a retainer and although he at all times desired to appeal his conviction no notice of appeal was ever filed.
This court remanded to the Circuit Court of Pulaski County to conduct an evidentiary hearing to determine whether Rodney McDuffie was entitled to a belated appeal based on ineffective assistance of counsel. The trial court concluded from that hearing that the Hall Law Firm had been contacted on May 31,1990, and McDuffie had timely paid the firm to handle his appeal, notice of which could have been filed on or before June 24,1990. The trial court also found that Mr. Mercer had not been relieved and had a continuing duty as trial counsel to file an appeal in McDuffie’s behalf.
On February 11, 1991, this court sustained the findings of the trial court by granting a belated appeal conditioned upon the submission of an affidavit from the Hall Law firm acknowledging that the failure to file notice of appeal was attributable to counsel’s omission. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979). The Hall Law Firm moved to reconsider and to supplement the record and, when these motions were denied, applied to the United States District Court for a writ of habeas corpus. The Magistrate Judge determined that Rodney McDuffie did not receive effective assistance of counsel in connection with his undisputed wish to appeal, that Mr. Mercer, as unrelieved trial counsel, was obligated under Ark. R. Crim. P. 36.26 to file notice of appeal, that Mr. Hall, on the other hand, accepted $700 on May 31, 1990, toward an agreed retainer of $1,000, that while Mr. Hall made it clear that the full retainer was required before he was under a duty to act, he accepted seventy percent and was accordingly under some obligation to avoid a procedural default in the appeal process, commenting:
The filing of a notice of appeal, while critical, is not time consuming or difficult. Mr. Hall made no attempt to determine and monitor the notice deadline. Nor did he coordinate with Mr. Mercer to make sure Petitioner McDuffie’s appeal rights were not lost.
This could be said to be one of those unfortunate situations where no one is at fault and everyone is at fault. Without attempting to apportion blame, it is the opinion of the court that collectively, the attorneys’ actions were deficient and fell below the standard of effective representation as outlined in Strickland v. Washington, 466 U.S. 668 (1984).
Pursuant to those findings the Magistrate Judge concluded that Rodney McDuffie’s Sixth Amendment rights were violated and that if an appeal were not granted by the State of Arkansas within sixty days a writ of habeas corpus should issue.
We concur in the veiw that Rodney McDuffie is entitled to a belated appeal and that the failure to perfect the appeal is attributable to the attorneys involved, that is to say, that neither can avoid responsibility by assuming it was the duty of the other to act. We agree as well that the refusal of John W. Hall to shoulder the responsibility for the default should not deprive Rodney McDuffie of the right to appeal, which we hereby grant. A copy of this order shall be forwarded to the Committee on Professional Conduct. | [
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