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David Newbern, Justice.
This is an appeal from denial of post-conviction relief sought pursuant to Ark. R. Crim. P. 37. The appellant was, upon his plea of guilty, convicted of three counts of aggravated robbery and one count of failure to appear. His post-conviction petition alleged ineffective assistance of counsel and failure of the trial court to follow the provisions of Ark. R. Crim. P. 24.4,24.5,24.6, and 24.7 in accepting his guilty plea. We agree the trial court did not comply with Rules 24.4 and 24.6, and therefore we must reverse the refusal of post-conviction relief and order the appellant’s conviction set aside. We need not decide the issues presented in the ineffectiveness of counsel argument.
Rules 24.4 and 24.6 are as follows:
RULE 24.4
Advice by Court
The court shall not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally, informing him of and determining that he understands:
(a) the nature of the charge;
(b) the mandatory minimum sentence, if any, on the charge;
(c) the maximum possible sentence on the charge, including that possible from consecutive sentences;
(d) that if the offense charged is one for which a different or additional punishment is authorized because the defendant has previously been convicted of an offense or offenses one (1) or more times, the previous conviction or convictions may be established after the entry of his plea in the present action, thereby subjecting him to such different or additional punishment; and
(e) that if he pleads guilty or nolo contendere he waives his right to a trial by jury and the right to be confronted with the witnesses against him, except in capital cases where the death penalty is sought.
RULE 24.6
Determining Accuracy of Plea
The court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea.
At the post-conviction relief hearing the appellant presented as an exhibit a portion of the transcript of his trial depicting the colloquy among the court, the appellant and counsel with respect to his plea. The appellant was represented by Mr. Dickson, and the state by Mr. Bunch. The colloquy began as follows:
THE COURT: Is this on a change of plea? Is that correct?
MR. DICKSON: That is correct, your honor.
THE COURT: As to both cases?
MR. DICKSON: That is correct.
THE COURT: Have you discussed with Mr. McDaniel the nature of the charges? What the State has to prove to convict him of the, the various, the effects of a plea of guilty to these charges and the maximum and minimum penalties available by law?
MR. DICKSON: Yes, sir, indeed, in both cases, your honor.
THE COURT: All right, now Mr. McDaniel, Mr. Dickson can defend you in Court and he can advise you, but when it comes down to the matter of a plea of guilty that is up to you and you alone. Do you understand that?
MR. MCDANIEL: Yes, sir.
THE COURT: Are you offering a plea of guilty to the charge of aggravated robbery — class “A” felony, two different cases, of your own free will?
MR. MCDANIEL: Yes, sir.
THE COURT: Has anyone leaned on you to get you to plead guilty?
MR. MCDANIEL: No, sir.
THE COURT: Has anyone promised you whether I would accept your pleas or not?
MR. MCDANIEL: No, sir.
THE COURT: All right. Mr. Bunch, do you have an arrangement?
Thereafter, the prosecutor described the plea arrangement and the details of the allegations against the appellant. When asked if he had anything to say, the appellant’s counsel discussed with the court obtaining a delay of transfer to the Department of Correction sufficient to allow the appellant time to be married. The court next addressed the appellant as follows:
THE COURT: Now, Mr. McDaniel, did you read this plea recommendation before you signed it?
MR. MCDANIEL: Yes, sir, I did.
THE COURT: Do you have any questions about it?
MR. MCDANIEL: No, sir.
THE COURT: Also, the Defendant’s statement? Did you read it?
MR. MCDANIEL: Yes sir.
THE COURT: Did you sign it? Now, that’s concurrent with . . . what’s the number in Madison County?
MR. BUNCH: You honor that’s on the 79-51.
THE COURT: All right. I have noted Mr. McDaniel’s plea of guilty on both these cases and sentence him to fifty years in the Department of Corrections on each case, running concurrently, and also concurrently with the sentence in Madison County, CR-79-51. He will be given credit for 111 days jail time, and commitment will issue. Does that cover it?
MR. DICKSON: I think it does, your honor.
MR. BUNCH: Yes, your honor.
There was obviously no compliance with Rule 24.4, as none of the information required to be conveyed by the court to an accused was conveyed by “addressing the defendant personally.” Nor did the court establish a factual basis for the guilty plea. It is not enough that the prosecutor recite into the record the allegations against the accused. The court must ascertain from the accused whether he is pleading guilty because he believes he in fact is guilty. Atkins v. State, 287 Ark. 445, 701 S.W.2d 109 (1985).
We have held, and we continue to hold, that compliance with Rule 24 is mandatory. Reed v. State, 276 Ark. 318, 635 S. W.2d 472 (1982); Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). In Shipman v. State, 261 Ark. 559, 550 S.W.2d 454 (1977), we held that substantial compliance was sufficient. In that case the prosecutor stated the details of the crimes to the court, but our opinion points out:
The judge determined, by inquiring of appellant himself, that appellant knew that he was waiving his right to a jury trial, was voluntarily entering a guilty plea to the charges, and was in fact guilty and that he knew that the judge was not bound to accept the terms of the plea bargain.
Here there was no such substantial compliance, as the court did not inquire of the appellant whether he was in fact guilty. An inquiry by the court of the prosecutor whether there is a basis for the charge against the accused does not establish that there is a factual basis for the plea as required by Rule 24.6. That can only be done by the court asking the defendant if he did the things of which he stands accused and is pleading guilty because he is guilty.
The dissenting opinion focuses on whether the plea was voluntarily entered. It ignores the trial court’s failure to give the appellant the information required by Rule 24.4. As we pointed out in Atkins v. State, supra, the rule’s purpose is to inform the defendant’s ultimate decision to plead guilty. Given the court’s failure to comply with Rule 24.6, our decision need not turn on the question of substantial compliance, or lack of it, with Rule 24.4. However, it cannot hurt to restate our expectations and to emphasize how easy it would be for the court to comply fully with these rules by having them, or a simple checklist derived from them, before him when the plea is discussed.
The decision of the circuit court is reversed, and the case is remanded so that the conviction may be set aside in accordance with Rule 37.4.
Purtle, J., not participating.
Hickman and Hays, JJ., dissent. | [
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George Rose Smith, Justice.
When two states both have grounds for asserting jurisdiction over a claim for workers’ compensation benefits, do payments of compensation made to the injured worker under the laws of one of the states toll the statute of limitations as to a claim later filed in the other state? The few existing decisions in other jurisdictions are split. Larson, Workmen’s Compensation, § 78.43 (a) (1976). In the present case our Commission held that running of the statute is not suspended, because payments made under the law of another state do not constitute the “payment of compensation” within the meaning of our statute of limitations. Ark. S'tat. Ann. § 81-1318 (b) (Repl. 1976). The Court of Appeals reversed. On review we explained our reasons for granting certiorari in this particular case. Houston Contracting Co. v. Young, 267 Ark. 44, 589 S.W. 2d 9 (1979).
There is no doubt that both Arkansas and Texas might have asserted jurisdiction in this case. The claimant was a resident of Arkansas when he was first hired by this employer to work on a construction job in Arkansas in 1941. The employer is licensed to do business in Arkansas. The claimant continued to reside in Arkansas during the 33 years that he worked for the.company, in Arkansas, in Texas, and in other states. He was still a resident of Arkansas in 1974 when he injured his back while working for the company on a construction job in Vidor, Texas. He underwent medical treatment and surgery in Arkansas and Texas. The employer has its headquarters in Houston, Texas. The insurance carrier, without controverting the claim, made payments under the Texas compensation law until the claimant employed counsel and filed a claim in Arkansas. The parties do not question the possible jurisdiction of either state.
The Court of Appeals, in disagreeing with the Commission, relied upon Auslander v. Textile Workers Union of America, 397 N.Y.S. 232, 59 A.D. 2d 90 (1977). There the court undertook to reconcile the conflicting results in other states. The court reasoned that the claimant, on the one hand, should be bound by his acceptance of an official award of compensation in one state if he had actively participated in the procurement of the award and if the employer or insurance carrier had not improperly or in bad faith channeled the claim into that state. If the claimant, on the other hand, did not know that the payments he was receiving were pursuant to the laws of another state, and the payments were not made under an official award, “an employer’s or carrier’s contention that the payment is ‘under the laws of another state’ is a self-serving claim which should not be given effect.’’ The New York court concluded that the issue there was one of fact and remanded the cause to the compensation board for further proceedings.
We agree with the general view expressed by the New 'York court and adopted by our own Court of Appeals, but we disagree with the latter’s apparent assumption that no issue of fact is presented in the case at bar. Here no award appears to have been made in Texas; so it cannot be said that the claimant has elected to proceed under Texas law by actively participating in the procurement of compensation in that state. On the other hand, the claimant testified that his compensation checks came from Beaumont, Texas, and that in response to a letter from the Texas Industrial Accident Board he had filled out a form describing how the accident happened and what treatment he had received. Thus this case, like the one in New York, falls somewhere between the two possible extremes. The Commission must weigh the competing considerations of policy to decide whether the running of the Arkansas statute was tolled by the Texas payments.
The issue was not fully developed in the testimony before the administrative law judge and in fact was not actually decided by the Commission, which treated the question as one of law. We shall not attempt to speculate about the controlling considerations of fairness to be followed when the facts have been fully developed and finally determined. The cause is remanded to the Court of Appeals with directions that it be sent back to the Commission for further proceedings.
Modified and remanded.
Harris, C.J., not participating. | [
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James H. Pilkinton, Judge.
This is an unemployment compensation case. The claimant has appealed the determination of the Arkansas Employment Security Board of Review holding her ineligible for benefits under the provisions of the Arkansas Employment Security Act. The agency had first determined that claimant was not considered unemployed. She was a school employee who did not normally work during the summer vacation, and expected to return to her job in the fall. On appeal, the Board of Review found that claimant was, in fact, unemployed within the meaning of the act, but was nevertheless ineligible for benefits under the provisions of Section 4 (c) of the Arkansas Employment Security Law. The Board specifically found that claimant was not doing those things that a reasonably prudent person would do to seek suitable work, as required by the statute.
Section 4 (c) of the Arkansas Employment Security Law provides that claimants will be eligible for benefits if they are unemployed, physically and mentally able to perform suitable work, available for such work, and doing those things that a reasonably prudent individual would be expected to do to secure work. (Emphasis added.)
In Terry Dairy Products Company, Inc. v. Cash, Commissioner of Labor, 224 Ark. 576, 275 S.W. 2d 12 (1955), the Arkansas Supreme Court held that the findings of fact made by the Board of Review in cases of this nature are conclusive on appeal if supported by substantial evidence. Therefore, the question here is whether there is substantial evidence to support the determination of the Board of Review. It is clear from a study of the record that there is such substantial evidence. The record reflects that claimant had worked for the same employer as a teacher’s aide since about 1976. Since that time, the program has been suspended for the summer months only. The program was expected to resume again in early fall of 1979, and the claimant said that she planned and intended to return. However, she also testified that she was currently looking for and would accept other full time work. If she can find suitable work, she might not choose to return to this employer. But the evidence shows she has not worked during the past summers she has been off. It is a very close question, based on this record, as to whether claimant was, in fact, properly considered unemployed within the meaning of the act; however, the Board of Review resolved that issue in her favor, and claimant does not, of course, complain of that ruling. She does complain of the secondary finding of the Board that although “unemployed’ ’ she is still ineligible because of her lack of effort to find work. Claimant-Appellant is now represented by counsel who raises certain procedural points. It is claimed, for example, that appellant came before the hearing referee prepared to prove that she was, in fact, unemployed within the meaning of the act, which she did. Claimant says she understood this to be the only issue on appeal and had no idea the matter of her effort to seek work would also be reviewed. The notice of hearing which claimant received plainly stated, however, that “the hearing (before the referee) may involve any question having a bearing on the claimant’s right to benefits up to time of the hearing”. She had been previously advised of what effort she would be expected to make in seeking suitable employment. It should be noted, too, that claimant was only declared ineligible for benefits from April 30, 1979 up to and including the date of the hearing, June 12, 1979. If there was any misunderstanding about the matter in her mind, surely she was fully informed by the decision below so she could make the required effort, thereafter, if she was actively seeking employment.
If áppellant was misled in any way by the notice of the setting of hearing before the examiner-referee, she still had an opportunity to raise the point before the Board of Review, which she did not do. She did, however, in her request for appeal to the Board of Review submit a detailed list of all contacts she had made since filing her application. In view of this list, which was before the Board of Review, the pro cedural error, if any, was harmless. Appellant placed before the Board of Review everything she then wished to have in the record. We are at aloss to know what additional evidence she could present on the point (of her efforts seeking work during the period involved) if this case was remanded. Appellant’s counsel has not enlightened us as to what additional facts he seeks to present on remand. Under those circumstances, it would be useless to remand this case for further evidence as to appellant’s effort seeking work during the period involved.
AFFIRMED.
Newbern, J., dissents. | [
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Conley Byrd, Justice.
This is a boundary dispute between appellants Carry W. and Allie Lucille Chandler who claim title to the strip in question by a deed from Buell Teer and appellees Rosie Lillian Palmer, et al who claim by adverse possession to an old fence erected in 1932 by their predecessor in title. The trial court found the issue of adverse possession in favor of appellees and fixed the boundary between the parties along a new fence erected by appellees some two feet inside of the old fence. For reversal appellants raise essentially fact issues contending that the trial court’s findings are against a preponderance of the evidence in that appellees failed to establish: (1) pedal possession; (2) hostile possession; for the statutory period of seven years (3) the location of the old fence; and (4) the sufficiency of the character of the old fence to give notice to the true owner. We affirm the trial court.
Lillian Palmer testified that she had been acquainted with the property since 1932 when her mother-in-law acquired the title to 12 acres and erected a hog wire fence with two barbed wires around the entire 12 acres. She and her husband acquired the six something acres that she and the other appellees now own from her mother-in-law in 1945. She states that she and her husband used the area up to the old fence for gardening and pasture. Her husband, who died in 1971, repaired the fence from time to time to keep in the livestock they owned. The new fence was erected just inside the old fence after appellants’ complained about the clearing out of the old fence.
H. S. McDonald testified that he had lived across the street from the Palmers since 1959 and that there had always been an old fence through the area along the back property line. He stated that Mr. Palmer always maintained a garden and a pasture up to the old fence.
Gorden Palmer testified that he had lived in the area for 32 years except for a few years when he was gone and got married. However, he testified that for 15 years he farmed and pastured up to the old fence line.
Appellant Carry W. Chandler does not deny the existence of an old fence. He admits that his predecessor in title strung some barbed wire along the old fence line to hold in his horses. On redirect he stated that the old fence that appellees’ counsel kept describing was where his predecessor straightened up the barbed wire to hold his horses. The old fence vaguely coincided with what is the red line on the survey and is approximately what the new fence coincides with.
Appellants point to Maney v. Dennison, 110 Ark. 571, 163 S.W. 783 (1914) and contend that the proof here is sufficient to show any particular portion of the lands that appellees have occupied for a sufficient length of time to ripen into title by limitation. We disagree with appellants, for, as we read the record, the area has either been in an enclosure or occupied by a garden since sometime in 1932. Furthermore, it appears that appellants’ predecessor in title by erecting the barbed wire fence along the old fence line for purposes of holding in his horses was acquiescing in the old fence as the boundary.
Neither can we agree with appellants’ position that the original entry by appellees and their predecessor in title was permissive. Such suggestion on the part of appellants is not supported by the record.
The assertion that the location of the old fence was not established with definiteness is not supported by the evidence. In fact appellants’ own proof tied the old fence in with the red line on the survey. Appellants are not in a position to complain about the fact that the trial court fixed the boundary line in accordance with the new fence since the proof on the part of appellees was more than ample to show their adverse possession to the old fence.
Finally appellants contend that the old fence was not of sufficient character to establish adverse possession. Needless to say the proof shows that the original fence consisted of hog wire and two barbed wires erected to posts. An exhibit shows the tops of some of the old posts sticking out through the honeysuckle vines covering the old fence. Such fences are ordinarily considered as sufficient to establish adverse possession, particularly where the person maintaining the fence maintains a garden and a pasture next to the fence. See Laney v. Arkansas Real Estate Co., Inc., 234 Ark. 187, 350 S.W. 2d 911 (1961) and Dierks v. Vaughn, 131 F. Supp. 219 (E.D. Ark. 1954).
Affirmed.
Harris, C.J. not participating. | [
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Ernie E. Wright, Chief Judge.
The appellant was convicted by a jury of two felony counts of theft of property in violation of Ark. Stat. Ann. § 41-2203, and a misdemeanor count of drawing and uttering an insufficient fund check with intent to defraud in violation of § 67-720. After he was found guilty on the above mentioned counts the jury found appellant had been previously convicted of two or more felonies as charged. He was sentenced to three years imprisonment on each of the two felony convictions, with the sentences to run concurrently, and a fine of $20.00 on the misdemeanor conviction.
From the judgment the appellant brings this appeal contending the court erred in denying appellant’s motion for a directed verdict of acquittal and in admitting into evidence the testimony of the bank’s officer and microfilm copies of bank records.
The evidence shows an . account was opened in the Union National Bank in Little Rock on December 2,1976 in the name of Master A. C. Reed Enterprises, Inc. in the amount of $5.00. No other deposits have been made in that account. On December 26,1976, A. C. Reed drew a check in the amount of $347.00 on that account pay able to A. C. Reed and deposited it in his personal account. The check was charged back to the business account as there were no funds in the business account to clear the check. The bank suffered a loss of $238.89 in the accounts incident to the $347.00 bad check. On December 28,1976 A. C. Reed issued a check on his personal account for $35.00 to the Country Cobbler for a pair of boots and payment by the bank was refused because of insufficient funds in the account. On March 12,1977 A. C. Reed issued a check on the business account to A. C. Reed and this was cashed by him at a Kroger store in Little Rock. The manager of the store who cashed the check testified the appellant present at trial was the individual for whom he cashed the check. Payment of the check was refused by the bank as there were no funds in the account. The appellant contacted the bank and Kroger store prior to trial and expressed a desire to make restitution, but tendered no funds.
A sales clerk from the Country Cobbler testified A. C. Reed, the appellant, present in the courtroom, gave him the $35.00 check for a pair of boots and the check came back from the bank unpaid. The check has not been paid.
Microfilm copies of bank records incident to the two accounts were received in evidence upon the testimony of the manager of the accounts services department of the bank. He testified the microfilm records he identified were kept in the normal course of business.. His department processed all records for checking and saving accounts, the transactions are microfilmed daily, and that while he does not keep the microfilm in his immediate personal possession, requests for copies are handled through his department. He admitted he did not have personal knowledge as to whether the checks were actually written by A. C. Reed.
Appellant argues that the state did not establish by direct evidence that appellant wrote or presented the checks involved in the prosecution, and that his signature on the checks was not identified. He also argues the circumstantial evidence was not sufficient to support a conviction. .
The manager of a Little Rock Kroger Store testified he cashed a check for appellant dated March 12, 1977 in the amount of $165.00. The check was returned by the bank with the notation the account was closed. The check has not been paid and the appellant in the courtroom is known to him as A. C. Reed, the person for whom he cashed the check. The check was received in evidence.
No evidence was introduced disputing the bank records or the state’s evidence.
The microfilm copies of bank records identified by the bank’s officer as being copies of records kept in the normal course of business were competent evidence, and it was not error to admit the records in evidence. Ark. Stat. Ann. § 28-932 expressly provides for the admissibility of such records, and the records were adequately identified by the bank’s officer. Under Rule 803(6) of the Uniform Rides of Evidence the testimony of the witness was competent.
The testimony of two witnesses identifying appellant as the person passing the two bad checks coupled with the testimony as to appellant expressing a desire to the bank and to Kroger store to make the losses good, combined with the documentary evidence was sufficient to warrant the court in submitting the issues to the jury.
On appeal the court affirms if there is substantial evidence to support the verdict, and we find ample substantial evidence to support the jury’s verdict. Milburn v. State, 269 Ark. 267, 555 S.W. 2d 446 (1977).
After the verdict of guilty and prior to the jury determining the sentence, appellant took the stand and admitted he was guilty of the charges, and expressed his intention of making restitution.
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George Howard, Jr., Judge.
Appellant was charged with.first degree murder. The jury found him guilty of murder in the second degree and fixed his punishment at twenty (20) years in the Department of Correction.
The relevant facts are: On October 13, 1978, Willie O’Neal, Jr. was killed by a gunshot while participating in a “crap game” at a private residence. Appellant was immediately taken into custody by police officers who advised him of his rights. Appellant was placed in the rear compartment of the police vehicle of Officer Thomas Johnson. While enroute to the police station, appellant purportedly said:
“I shot the son-of-a-bitch. I wish I had shot him sooner.”
During the Denno hearing conducted by the trial judge (a hearing conducted in chambers to determine the voluntariness of the statement), appellant admitted that he was advised of his constitutional rights, but denied making any statements in the police car.
The trial court found that appellant voluntarily made the statement and, consequently, the statement was admitted into evidence.
Appellant argues that the evidence not only fails to support a finding that the statement was voluntary, but falls short of showing that the statement was actually made.
It is settled law that appellate courts, in reviewing a finding of voluntariness of a purported admission, make an independent determination based upon the totality of the circumstances and the trial judge’s finding will not be disturbed unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974).
Moreover, the State has the burden of proving that an in-custodial statement is free and voluntary. Rutledge v. State, 263 Ark. 781, 567 S.W. 2d 283 (1978).
Officer Johnson testified that appellant, on his own volition, admitted shooting the decedent. It is clear that, when the statement was allegedly made, appellant was occupying the rear compartment of the police vehicle while Officer Johnson occupied the front compartment. A metal screen separated the two compartments. Only these two individuals occupied the vehicle. Appellant admitted firing a weapon five or six times in order to “warn or scare” the decedent, but did not “mean to kill him.”
Dr. Fahmy Malak, State Medical Examiner, testified that he performed an autopsy on the remains of the decedent and found two bullet wounds, one of the head and one of the abdomen; that the shot to the head was from back to front and was fatal.
The conflicting testimony of appellant and Officer Johnson, regarding the alleged admission of the appellant, presented a fact question. As the fact finder, it was the responsibility of the trial court to resolve the conflict. Credibility of the witnesses was also a matter to be considered and determined by the trial judge. Bell & Walker v. State, 258 Ark. 976, 530 S.W. 2d 662 (1978); Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978).
We are unable to say that the trial court’s finding is not supported by a preponderance of the evidence and, accordingly, we affirm. | [
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Frank Holt, Justice.
The appellees brought this action to foreclose a second mortgage. In January, 1966 the appellees sold their turkey and stock farm to the appellants for a total price of $140,000.00 which included some farm machinery and other personal properly. The appellants assumed an existing first mortgage in the amount of $42,500.00, payable $5,000.00 annually. They gave appellees a note for $47,500.00, secured by a second mortgage on the farm, payable at the rate of $4,-750.00 annually beginning on January 15, 1967. By oral agreement, the purchase price balance of $50,000.00 was considered as a down payment and to be paid by appellants as an unsecured open account.
Appellees filed their foreclosure suit in February, 1968 alleging that no payments had been made on the note and asked for judgment against the appellants in the sum of $47,500.00, plus accrued interest, costs and attorney fees. Appellees also alleged that the appellants had agreed to make a $50,000.00 down payment of which “the sum of $25,000.00 was to be allocated for the personal property and $25,000.00 for the real property.” In their answer the appellants denied the default and alleged that they were current in the payment of all installments due on the second mortgage and that they had made sufficient payments on the personal property to “entitle them to an agreed bill of sale. The appellants asked that the appellees’ complaint be dismissed and that appellees be ordered and directed to deliver to appellants the warranty deed, together with a bill of sale to the personal property. With the issues thus joined, the cause was submitted to the chancellor.
The appellants contended that according to the oral agreement their payments were first to b.e applied to the two mortgages and then any balances were to be applied to the payment of the personal property first and then to the real property. Further, that when the sum of $25,000.00 was paid on the down payment, appellees were to deliver a bill of sale to the personal property. Appellants admit that the $50,000.00 down payment has not been paid in full by them. The appellees assert, however, the oral agreement was that all of the net payment received from appellants was to be first applied to the full $50,000.00 down payment account and the deed and bill of sale were not to be delivered until there was payment in full; that there was a balance due on the full down payment; that all payments had been applied entirely to the down payment, with appellants’ knowledge; that no payments had been made on the second mortgage and, therefore, it was in default.
The chancellor found:
“That nothing had been paid upon the principal or interest on the note. That said note is now in default, and plaintiffs are entitled to a judgment on said note. That said note was secured by a real estate mortgage . ..
“The court finds that the agreement between the parties was that payments made by defendants would first be applied to the $25,000.00 sale price of the personal property, and payments would next be applied to the remaining $25,000.00 of the down payment.
‘! That the said plaintiffs shall have and recover from the said defendants the sum of [$54,981.25] principal and interest due and interest at the rate of 6 percent per annum from this date, and the additional sum of $4,750.00 for attorney fees and interest at the rate of six percent per annum from this date until paid. The Court finds that the defendants have paid the plaintiffs in full for the personal property described in said Bill of Sale, and the said plaintiffs are ordered to deliver the Bill of Sale to said personal property to the defendants and the title of said personal property is vested in the defendants.
“'While it is apparent that monies are due plaintiffs from the defendants in connection with the down payment, the defendants agreed to make upon the lands and property in addition to the debt evidenced by the note and mortgage, relief was not sought for this item in the pleadings. That the plaintiffs are not required to deliver the deed to the above lands to the defendants in the event of the payment of the judgment herein provided for, until the balance of the agreed down payment is paid in full...”
The chancellor ordered foreclosure of the second mortgage and delivery of the bill of sale.
On appeal, the appellants contend for reversal that the trial court erred in holding appellants in default on the note and mortgage and in rendering judgment for the appellees thereon, and, further, that the appellees are precluded by the doctrines of waiver and estoppel from accelerating the payment of the note and mortgage.
On cross-appeal, the appellees assert that the Court erred in holding that the payments made by the appellants would first be applied to the personal property and that the personal property pow belongs to the appellants. Further, that the Court erred in not sustaining the appellees’ motion and plea that the pleadings be amended to conform with the proof wherein appellees sought judgment for the balance of the down payment.
The appellants were permitted to take possession of the farm and personal property before making any payments. During 1966 appellants paid to the appellees $32,000.00 in cash. It is appellants’ position that during the years of 1966 and 1967 the appellees received from appellants a total of approximately $65,000.00 which included cash payments together with income from the operation of the farm by the appellants. Further, that appellees had refused a tender of a $20,000.00 cash payment about a month before the foreclosure action. The appellees’ position is, however, that during this period they had only received from the appellants the gross sum of $53,520.84 out of which the appellees had to pay the sum of $26,261.02 for agreed necessary expenses in the operation of the farm which included insurance, taxes, and other agreed items, leaving a balance of $27,259.82 as net receipts from the appellants.
There was evidence by the appellees that the oral agreement provided that the $50,000.00 down payment would be paid immediately; that appellees would first deduct from the receipts the payments of certain costs that would become necessary in the operation of the farm as well as taxes, insurance, etc.; that any net payments would then be applied to the $50,000.00 unsecured open account until it was fully paid; that this application of the payments was with the full knowledge of appellants, leaving a balance of $22,740.18 due on the down payment; that no payment had been applied on the second mortgage ; that no payment had been made by appellants on their note and mortgage; that appellants had been warned repeatedly by the appellees of the default and on two occasions appellees’ attorney had written appellants about their delinquency on payments on this mortgage ; that appellees had exercised forbearance during two and one-half years in bringing this foreclosure proceeding and further, in the collection of the full down payment; that appellees were to retain and not record the deed and second mortgage nor deliver the bill of sale to the personal property until the full down payment account was paid; that appellees Lad not agreed to accept a $20,000.00 cash payment a month before foreclosure; that if appellees had accepted such a payment and applied it according to their oral agreement there would still be a balance due on the open account.
The appellants do not dispute the $50,000.00 account as a down payment. They do dispute the oral agreement as to the priority in the application of their payments and as to when they would be entitled to the bill of sale to the personal property. They offered evidence that their payments were first to be applied to the two mortgages and then any balances were to be applied first to payment of the personal property; that whenever tlieir payments on the open account amounted to $25,000.00, it was understood that the bill of sale, which was itemized and completed, would be delivered to them; that this was necessary and so understood for purposes of needed collateral and additional financing which they had made an effort to do; that it was understood that appellants could not make a full and immediate down payment; that their payments depended upon the profits from the purchased farm and the sale of property they owned in another state; that appellants had offered a $20,000.00 down payment to appellees about a month before foreclosure proceedings were started and that appellees insisted upon a $25,000.00 payment plus a $4,- 000.00 boat and a rewriting of the deed, note and mortgage, to which appellants would not agree.
It is a familiar rule of law that ‘ ‘ as between debtor and creditor, where the debtor fails to designate the debt and there are several debts to which the payment can be applied, the creditor may apply it as he chooses.” Cooper v. Sparrow, 222 Ark. 385, 259 S.W. 2d 496 (1953); Hawkins v. Hawkins, 200 Ark. 38, 137 S.W. 2d 904 (1940); Johnson v. Gammill, 231 Ark. 1, 328 S.W. 2d, 127 (1959); Snow v. Wood, 163 Ark. 280, 259 S.W. 733 (1924). Further, the burden was on the appellants, the debtors, to show that their payments were given and to be applied first in satisfaction of the installments due on the second mortgage rather than upon the agreed down payment. Hill v. Green, 127 Ark. 406, 192 S.W. 209 (1917). On this issue, as well as the other facets of this case, the evidence was in conflict as to the oral agreement between the parties. Their testimony and exhibits tended to support their respective contentions. When we, on appeal, consider the question of the preponderance of the evidence, the judgment of the chancellor will be considered as persuasive in situations where “the evidence is conflicting, and evenly poised, or nearly so.” Turnage v. Matkin, 227 Ark. 528, 299 S.W. 2d 831 (1957); City of Little Rock v. Newcomb, 219 Ark. 74; 239 S.W. 2d 750 (1951); City of Little Rock v. Tucker, 234 Ark. 35, 350 S.W. 2d 531 (1961). In Hunter v. Dixon, 241 Ark. 725, 410 S.W. 2d 389 (1966), we said:
‘ ‘ This court has held in a long line of cases that while chancery cases are tried de novo in this court, a decree of the chancery court will not be reversed where there is a disputed question of fact unless the findings are clearly against the preponderance of the evidence.”
Upon a review of the issues presented by the pleadings, the testimony and the exhibits in the case at bar, we cannot say that tlie findings of the chancellor are against the preponderance of the evidence.
Affirmed on direct and cross-appeal. | [
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George Nose Smith, Justice.
This action for personal injuries was tried before a jury and ended in a verdict for the defendant. At the trial the plaintiff (-on- tended that under Act 161 of 1937, which we will call our Labor Department Act, the measure of the defendant’s duty to provide the plaintiff with a safe place to work exceeded the common-law standard of ordinary care and in effect was that of an insurer. Ark. Stat. Ann. 81-101 through 81-121 (Repl. 1960). The trial court rejected that contention and submitted the case to the jury under AMI instructions which told the jury that at the time of the accident the defendant Shirley and his employee Utley were under a duty to exercise ordinary care for the safety of the plaintiff. it was the trial judge’s belief that the Labor Department Act was not applicable to the case, for the reason that there had been no employer-employee relationship between the plaintiff and the defendant. Whether that lading by the trial court was correct is the principal issue on appeal.
The controlling question being wholly one of law, we need state only the salient facts that emerge from an extensive record. The plaintiff Horn was regularly employed as a driller and oil-field roughneck by Miller Drilling Company. In May of 1967 Miller completed the drilling of an oil well and needed to move its equipment to another location. Miller engaged the defendant Shirley, doing business as Shirley Trucking Company, to handle the move. For the job Shirley supplied a tractor-trailer rig operated by Shirley’s employee, C. H. Utley. Miller instructed two of its employees, Parker and the plaintiff Horn, to help Utley load the equipment.
Two large 10,000-pound motors had to be loaded on the trailer. The tractor had a winch-and-cable attachment that was used to pull the first motor onto the rear half of the trailer. Utley then decided to disconnect the tractor and trailer, thereby letting the front end of the trailer down to the ground, load the second motor onto the bed of the tractor, and then transfer the motor from the tractor bed to the front half of the trailer.
The motors were permanently equipped with steel skids similar to railroad tracks. As the second motor was being winched onto the bed of the tractor one of its skids got caught under the edge of the tractor’s fifth •wheel. At Utley’s suggestion Parker and Horn picked up crowbars and tried to pry the motor away from the-fifth wheel. In some way, assertedly as a result of Utley’s changing the tension on the winch cable, the motor shifted its position and dropped down on the lower end of Horn’s crowbar. That caused the other end of the bar to snap upward and strike Horn’s chin and jaw with great force, inflicting severe and painful injuries.
Horn, as we have said, was employed by Miller, not b3r the defendant Shirley. Horn’s attorney, in view of the proof, did not request an instruction submitting to the juiy the question whether Horn had become Shirley’s employee under the borrowed-servant doctrine. See Bell Transp. Co. v. Morehead, 246 Ark. 170, 437 S.W. 2d 234 (1969); Transport Co. of Texas v. Ark. Fuel Oil Co., 210 Ark. 862, 198 S.W. 2d 175 (1946). Hence the case comes to us with no contention that Horn was acting other than as a regular employee of Miller at the time of the accident.
The pivotal issue of law is a narrow one. The appellant insists that under the Labor Department Act he was entitled to instructions imposing upon Shirle3r an absolute duty to provide Horn with a safe place to work rather than a common-law duty merely to exercise ordinary care to do so. To sustain that contention Horn must succeed in establishing two propositions: First, it must be found that the Labor Department Act imposed the absolute duty that Horn invokes. (For differing views upon that point see Carter v. Frazer Const. Co., 219 F. Supp. 650 [W.D. Ark. 1963], and Crush v. Kaelin, 419 S.W. 2d 142 [Ky. 1967].) Secondly, it must be found that Shirley owed that absolute duty to Horn, even though there was no employer-employee; relationship between them.
We find it unnecessary to discuss tlie first proposition, because in our opinion the trial court was right in holding that the absence of an employer-employee relationship rendered the Labor Department Act inapplicable to the fact situation presented by this litigation.
The Labor Department Act is a comprehensive statute containing 26 sections, most of which have no direct bearing upon this ease. The appellant relies entirely upon sections 1 and 9 (a), which we quote:
Section 1. DEFINITIONS. That when used in this Act, “employer,” includes every person, firm, corporation, partnership, stock association, agent, manager, representative, or foreman, or other person having control or custody of any employment, place of employment, or of any employee. Provided this Act shall not affect any employer engaged exclusively in farming operations. Provided further it shall affect employers employing five persons or over only. Ark. Stat. Ann. § 81-101.
Section 9. EMPLOYEE’S DUTY AS TO SAFETY, (a) Every employer shall furnish employment which shall be safe for the employees therein and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and shall do c*very other thing reasonably necessary to protect the life, health, safety, and welfare of such employees ;.. . Id., § 81-108.
The appellant, in arguing that the Act imposes upon every employer subject to the statute a mandatory duty to insure the safety of persons other than his own employees, relies upon clauses in the quoted sections that refer to “employment” and to “place of employment” and to “employees.” Specifically, Section 1 defines an employer as a person having control or custody of “any employment, place of employment, or of any employee.” Section 9 (a) requires an employer to adopt and use methods and processes reasonably adequate to render “such employment and place of employment” safe. With much ingenuity counsel argue that “employment” and “place of employment” and “employees” must all be treated as mutually exclusive terms, so that each must have been intended by the legislature to include throughout the Act some shade of meaning' not subsumed by the other two. Upon that reasoning counsel insist that the employer’s statutory duty to furnish employment which shall be safe for the employees therein and also to make both the employment and the place of employment safe must be construed to mean that the employer’s duty extends to all employees who are working on the premises, whether they are employed by him or by someone else. Hence, it is said, the defendant Shirley owed the statutory duties to Horn because Horn was an employee, albeit not an employee of Shirley.
The argument being made is so involved and so tenuous that we have really found more difficulty in stating' it than in answering it. We think it sufficient to discuss briefly a few of the considerations that compel us to conclude that counsel’s interpretation of the statute1 goes far beyond the manifest intent of the legislature.
Hirst, when the Act is read as a whole there were sound reasons for the definition of an employer to include a person having control or custody of any employment, place of employment, or employee — all three. The Act is a comprehensive measure having as its primary purpose the creation of a Department of Labor and the enumeration of the Department’s powers and duties. Some sections have to do only with “employment,” such as the duty of the newly created Commissioner of Labor to assist in avoiding lockouts, boycotts, black lists, and discriminations. Section 7 (e). Some sections have to do only with the place of employment, such as the Com missioner’s duty to affix a warning' notice to any machine or equipment found to be dangerous. Section 9 (c). Some sections have to do only with employees, such as the employer’s duty to keep’ a record of the hours and wages of each of his employees. Section 14 (b). Obviously any definition of “employer” that did not refer to employment, place of employment, and employees— all three — might, not have been broad enough to include all employers that were meant to fall within the reach of the statute.
Secondly, there was a similar reason for Section 9 (a) to require employers to render safe both the employment and the place of employment. Neither term includes the other in its entirety in every context. Employment is defined by the Random House Dictionary (1966) as the ‘ ‘ state of being employed;.. . service; ... an occupation by which a person earns a living; work; business.” Those definitions refer essentially to conduct rather than to the physical place of employment. That the lawmakers thought it best to use both terms, for clarity, does not mean that they intended a strained construction by which their language would include something not fairly falling within the ordinary meaning of either term.
Thirdly, “employer” and “employee” are correlative terms. Each implies the existence of the other, just as “parent” implies the existence of a “child,” and “husband” implies the existence of a “wife.” A law that defines the rights and duties of husbands and wives has reference to the obligations of each husband to his own wife, not to the wife of another. Similarly, the duty of an employer to employees clearly means to his own employees and not to those of some other employer, unless the language permits no other conclusion. This precise problem was met by a similar Wisconsin statute, which encompassed not only employees but also “frequenters” of the premises. See Globig v. Greene & Gust Co., 201 F. Supp. 945 (E.D. Wis. 1962). Our statute is markedly dissimilar from that one.
Fourthly, when the Labor Department Act was adopted we had no workmen’s compensation laAv. Hence there was a much greater need for the legislature to provide the Avorking man Avith a cause of action against his own employer for injuries resulting from unsafe conditions than there would be today. We must construe the act in its proper historical setting.
Finally, the Labor Department Act was a penal measure, imposing penalties of fines and imprisonment for violations of its provisions, with each day of violation constituting a separate offense. Section 21. We have held that the Act, being penal, must be strictly construed. Gordon v. Matson, 246 Ark. 533, S.W. 2d (1969). If avc had any doubt about the proper construction of the Act — and avc hatm none — the rule of strict construction would set that doubt at rest.
To this point we have discussed only the appellant’s main argument for reversal. He also contends that there is no substantial evidence to support the jury’s verdict for the defendant. The obstacles in the path of such an argument were discussed in Spink v. Mourton, 235 Ark. 919, 362 S.W. 2d 665 (1962), and need not be re-examined. Here, under the evidence and the court’s instructions, the jury might have found that the plaintiff failed to prove his charge of negligence in the defendant, that the plaintiff assumed the risk of the danger, or that the plaintiff’s own negligence exceeded that of the defendant. Those matters all turn upon the. preponderance of the evidence. As we observed in the Spink (‘ase, the trial judge may grant a new trial if he finds the verdict, to be against the preponderance of the e\Tidencc. We, however, are bound by the substantial evidence rule. It cannot be said that there is no substantial evidence to support this verdict.
Affirmed.
Fogleman, J., concurs. | [
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George Rose Smith, Justice.
This is a no-merit appeal from a verdict and judgment sentencing Beavers, as an habitual offender, to two consecutive 50-year sentences for aggravated robbery and kidnaping. Counsel for the appellant and the Attorney General for the State find no merit in the appeal. Beavers has not availed himself of the opportunity to file a pro se brief. We have studied the case and agree that it should be affirmed for want of merit. We point out, however, two defects in the appellant’s abstract and brief. First, the testimony has been copied verbatim instead of being abstracted, as required by Rule 9. Smith v. Pond, 259 Ark. 564, 534 S.W. 2d 769 (1976); Gray v. Ouachita Creek Watershed Dist., 239 Ark. 141, 387 S.W. 2d 605 (1965). Second, counsel has not presented the arguable points for reversal, as required by Anders v. California, 386 U.S. 738 (1967). Counsel merely states, as a conclusion, that in his opinion there is nothing in the record that would arguably support an appeal. The State, however, has supplied the deficiencies.
Affirmed.
Harris, C.J., not participating. | [
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Darrell Hickman, Justice.
This is an appeal from a Jefferson County Probate decree granting three illegitimate children the right to inherit from their father.
The probate judge ruled that Ark. Stat. Ann. § 61-141(d) was unconstitutional in the light of a United States Supreme Court decision, Trimble v. Gordon, 430 U.S. 762, decided April 26, 1977. The probate judge also held any common law rule unconstitutional that could have prevented illegitimate children from inheriting property the same as could legitimate children. Trimble v. Gordon, supra, was applied retroactively.
While this appeal was pending we decided in two other cases all the issues raised on appeal.
The three appellees, as represented, were found to be the minor illegitimate children of Willie H. Griffin. The probate judge found the children to have been acknowledged by Griffin as his own. Griffin had set up savings accounts for each child, two for $20,000.00, one for $10,000.00. The probate judge’s findings that the children were indeed the seed of Griffin is supported by the great weight of the evidence. It was virtually undisputed.
Wfe came to the same conclusion the probate judge did regarding the constitutionality of Arkansas law and common law that treat illegitimate children unequally.
We decided in Lucas v. Handcock, Adm’x., 266 Ark. 142, 583 S.W. 2d 491 (1979), that Trimble required us to declare Ark. Stat. Ann. § 61-141 unconstitutional, it being indistinguishable from an Illinois law declared unconstitutional in the Trimble case. We also declared any common law unconstitutional that would work to the same end.
Consequently, the probate judge’s judgment in these two regards was the same as ours in Lucas. However, the other issue in the case, the application of the Trimble decision in Arkansas, we decided differently than did the probate judge.
On the same day we delivered the Lucas decision, June 15, 1979, we also handed down a decision in the case of Frakes v. Hunt, 266 Ark. 171, 583 S.W. 2d 497 (1979). We held in Frakes that Trimble would not be applied retroactively in Arkansas, that is, it would only be applied in Arkansas to cases pending at the time Trimble was decided, April 26, 1977.
In Lucas v. Handcock, Adm’x., supra, we found litigation was pending when Trimble was decided; therefore, we concluded an acknowledged illegitimate child could inherit from a father. In Frakes we found litigation was not pending when Trimble was decided and denied relief to an offspring claiming to be an acknowledged illegitimate child.
In Frakes we recited the reasons Trimble should not be applied retroactively. Justice Fogleman, in a dissenting opinion, sharply disagreed with our right to decide whether a United States Supreme Court decision should not be given retroactive effect.
We referred to the decisions of Kentucky and Tennessee and their treatment of the problem. Tennessee concluded its decision regarding illegitimate children would only be applied prospectively — from the date of Tennessee court’s decisions — it was to govern all pending cases. Allen v. Harvey, 568 S.W. 2d 829 (Tenn. 1978). Kentucky decided that Trim-ble would not be applied before April 26, 1977, the date of the Trimble decision; pending cases in which the constitutional issue was raised were excluded. Pendleton v. Pendleton, 560 S.W. 2d 538 (Ky. 1978).
We concluded in Frakes v. Hunt, supra, that Trimble would not be applied retroactively in Arkansas.
Willie Griffin died March 30, 1977, before Trimble was decided April 26, 1977. Pleadings were not filed in this case until after the Trimble decision. Therefore, the case was not pending when Trimble was decided. Consequently, the appellees’ claim cannot prevail. The probate judge’s decision was contrary in this regard and the decree is reversed with directions to dismiss the appellees’ claim.
Reversed and dismissed.
11 We agree. George Rose Smith, Byrd and Purtle, | [
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Ernie E. Wright, Chief Judge.
This was an appeal to the Arkansas Supreme Court and has been assigned to the Court of Appeals for disposition pursuant to Rule 29(3) of the Arkansas Supreme Court.
In April, 1977, appellant pleaded guilty in the Craighead Circuit Court to separate charges of robbery and theft of property and burglary and theft of property. He was sentenced to two concurrent ten year terms in the Arkansas Department of Corrections on the robbery and burglary charges with five years of each of these sentences suspended during good behavior; and he was sentenced to five year terms on each of the two theft charges, with all sentences to run concurrently. He was committed to prison and later paroled.
Subsequently, he was charged in the Craighead Circuit Court with robbery of a woman’s purse. The State then filed a petition for revocation of the prior suspended sentences and requested that the court order execution of the full sentences.
Upon hearing evidence on the petition the court in December, 1978, revoked the suspension of the prior sentences and ordered that the prior five year suspended sentences should be consecutive, rather than concurrent as previously ordered.
On appeal it is contended that the evidence was insufficient to justify revocation of the suspension of sentences; and that the court erred in ordering the prior suspended sentences to run consecutively rather than concurrently.
Upon reviewing the evidence, we cannot say that the find ing of the court that the appellant had violated the good behavior terms of the suspension of sentences was clearly against the preponderance of the evidence. Cogburn v. State, 264 Ark. 173, 569 S.W. 2d 658 (1978). On the issue raised as to the power of the court to change the prior judgment which ordered that all of the sentences would run concurrently, we hold that the court was without jurisdiction to change the prior judgment to require that the two five year suspended sentences should run consecutively rather than concurrently.
Unquestionably, the court had the power to revoke the previous suspension of sentences upon finding that appellant had violated the good behavior terms of the suspension; however, as the original judgment imposed sentences and provided that all of the sentences would be concurrent, the court was without authority to change the previously imposed sentences from concurrent to consecutive. The cases of Williams, Standridge and Deaton v. State, 299 Ark. 42, 313 S.W. 2d 242 (1958) and Cashion v. State, 265 Ark. 677 (1979) are controlling on this point.
The circumstances here are unlike a situation in which the court withholds the imposition of sentence. Where the imposition of sentence is withheld, and the court later revokes suspension of sentence, Ark. Stat. Ann. § 41-1208 (6) empowers the court to impose any sentence that might have been imposed originally for the offense of which the defendant was found guilty. Ark. Stat. Ann. § 41-801 (1) defines the word “suspension” within the context of the aforementioned section as meaning to “suspend imposition of sentence.”
However, in the present case the court on April 5, 1977 sentenced the appellant to ten years in the Arkansas Department of Corrections on the plea of guilty to robbery and for the same term on a plea of guilty to burglary. Five years of each ten year term was suspended during good behavior and it was ordered that the sentences in both convictions would run concurrently. The sentences were pronounced and only the execution of a portion of the sentences was suspended. Under these circumstances, Ark. Stat. Ann. § 41-1208 (6) does not empower the court to change the prior sentences that were pronounced against the appellant so as to make them run consecutively rather than concurrently. Once the concurrent sentences were imposed the court was without jurisdiction to modify the sentences in the present proceeding to make them run consecutively.
No issue is here raised as to the authority of the court in imposing the sentences in April, 1977, to suspend a portion of the sentences “during good behavior” rather than on one or more of the specific conditions authorized by Ark. Stat. Ann. §41-1203 which provides a more definite standard of conduct for suspended sentences. Nor is any issue raised as to whether the original suspension of enforcement of sentences was permissible in view of Ark. Stat. Ann. § 41-803 which became effective January 1, 1976. The latter section excludes all sentences not authorized by the Criminal Code that became effective January 1, 1976.
The orders of the court revoking the suspension of a portion of the sentence in each of the two convictions are affirmed. The portion of the orders of the court modifying the prior judgments of the court to make the sentences run consecutively, rather than concurrently, as previously ordered, are reversed and the cause is remanded for the entry of appropriate orders in keeping with this opinion.
Penix, J., not participating. | [
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Darrell Hickman, Justice.
Jack L. Gustafson, Sr. was convicted in the Independence County Circuit Court of burglary, attempted theft and soliciting capital murder. He was sentenced to a total of 50 years imprisonment.
He raises numerous issues on appeal. We find prejudicial error was committed and reverse his conviction and remand the matter for a new trial. Our discussion of some of the issues will be limited since there will likely be a new trial.
Gustafson was charged with burglarizing a National Guard Armory and attempting to steal weapons from that armory. He was also charged with soliciting the murder of Ray Seeley who was seeing his former wife.
Law enforcement officials testified that they learned that Gustafson had made statements while he was in the Independence County Jail, on other charges, that he had automatic weapons for sale and that he planned to burglarize a National Guard Armory. A federal agent wired for sound was placed in the cell with Gustafson. He gave Gustafson a telephone number in Louisiana to call in the event Gustafson was interested in selling the automatic weapons and hiring somebody to commit the murder.
After Gustafson got out of jail on bond he made the telephone call. The undercover agent then met Gustafson at the Red Bird Truck Stop in Batesville. At this meeting a tape recording was made of the conversation. It related to the burglary of the armory and the murder of Ray Seeley and was decidedly incriminating. It was admitted into evidence over the objections of the appellant.
On October 26th, the night after the conversation at the Red Bird Truck Stop, the appellant was shot outside the National Guard Armory in Batesville. Gustafson had a gun and the State offered evidence that a pry bar was in his possession at the time he was shot. There was evidence that the armory had been entered with the use of the pry bar. There was no evidence that any weapons were taken.
The first allegation of error is that any conversations with Gustafson in the jail were obtained in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution as well as Ark. Const., art. II, § 8. Furthermore, the appellant argues that the tape recording made at the Red Bird Truck Stop should have been suppressed as tainted by these violations. The State did not offer as evidence any statements made by Gustafson while he was in jail, but only this later recording. Based on the record before us, all these arguments are without merit. Gustafson’s charges in this case were unrelated to those for which he was in jail and there was no requirement that he be advised of his rights by the undercover agent. Miranda v. Arizona, 384 U.S. 436 (1966) does not apply to this situation. Neither does Massiah v. U.S., 377 U.S. 201 (1964) prohibit the use of the tape. Massiah involved gathering information against a defendant through a “bugged’ ’ informant. Massiah had already been charged with the crime being investigated and had a lawyer in connection with that crime. The Supreme Court of Virginia in Hummel v. Commonwealth, 219 Va. 252, 247 S.E. 2d 385 (1978) considered evidence not unlike that obtained against Gustafson. The court distinguished the Massiah case:
While Massiah and its progeny stand for the proposition that the Sixth Amendment right to counsel proscribes surreptitious interrogation by a government agent of an accused about an offense with which the accused has already been charged, this exclusionary rule does not apply to information legally obtained in the investigation of a new and different criminal offense initiated by the accused while awaiting trial. Hummel v. Commonwealth, 219 Va. 252, 247 S.E. 2d 385, 388 (1978).
There was nothing unreasonable in the fact that an undercover agent was introduced in Gustafson’s cell in connection with conduct that was unrelated to his incarceration. In U.S. v. White, 401 U.S. 745 (1971), the Court said:
If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case. Id at 752.
It was not disputed that Gustafson made a telephone call on his own to the undercover agent after he got out of jail. This fact belies the appellant’s argument of inducement.
The appellant argues it was error for the prosecuting attorney’s “investigator’’, a material witness, to remain in the courtroom although all other witnesses had been excluded from the courtroom during the trial. The appellee argues that the witness was properly allowed in the court room by virtue of Subsections 2 and 3, Rule 615. The Uniform Rules of Evidence, Rule 615, reads:
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exlusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
It may have been only harmless error in this case for the trial judge to permit the investigator to remain in the courtroom. The investigator testified after the first witness had been called for the State and his testimony did not appear to relate in any way to the testimony of the first witness. There is no way the “investigator” in this case could qualify as an exception by Rule 615(2). The State did not make a strong case that the presence of the ‘ ‘ investigator’ ’ was essential to the conduct of the trial. In a criminal case it was not contemplated that such a practice would be routine.
Rule 615, Uniform Rules of Evidence, replaces Ark. Stat. Ann. § 43-2021 which provided for no exception to the rule in a criminal case. An accused under that statute could require all State witnesses be excluded. Rule 615 is the same as the federal rule and its purpose can best be learned by studying the recommendations made to Congress.
Weinstein quotes extensively from Senate Judiciary Committee statements in connection with Rule 615(3), which sheds some light on the intent of the United States Congress in adopting the same rule for federal courts:
Many district courts permit government counsel to have an investigative agent at counsel table throughout the trial although the agent is or may be a witness. The practice is permitted as an exception to the rule of exclusion and compares with the situation defense counsel finds himself in — he always has the client with him to consult during the trial. The investigative agent’s presence may be extremely important to government counsel, especially when the case is complex or involves some specialized subject matter. The agent, too, having lived with the case for a long time, may be able to assist in meeting trial surprises where the best-prepared counsel would otherwise have difficulty. Yet, it would not seem the Government could often meet the burden under rule 615 of showing that the agent’s presence is essential .... [Emphasis added.] Report, Committee on the Judiciary, United States Senate, 93rd Cong., 2d Sess., on the Federal Rules of Evidence, p. 26 (1974). As quoted in Weinstein, Evidence, par. 615[01].
The Advisory Committee’s Notes on Rule 615(3) read:
The category contemplates such persons as an agent who handled the transaction being litigated or an expert needed to advise counsel in the management of the litigation. See 6 Wigmore § 1841, n.4. As quoted in Weinstein, Evidence, par. 615[01].
The exclusionary rule is considered as effective as cross-examination in serving the court to garner the truth. It should not be easily circumvented. On a retrial, unless the prosecuting attorney can demonstrate that his investigator is actually essential to the trial of the case, the investigator should be treated like any other witness.
The appellant argues that the court should have granted a continuance. The attorneys for Gustafson were appointed seven days before the trial. The record is not clear whether the attorneys pursued the matter in a timely manner. The attorneys had been negotiating with the prosecuting attorney about this case for some time before their appointment. A motion for a continuance was not filed until the day before the trial. It is unlikely that such a matter will occur on a retrial.
The prosecuting attorney, over the objections of Gustafson, was permitted to require Gustafson to demonstrate to the jury certain actions of his outside the armory on the night in question. Gustafson was required to put on the holster and gun that was found in his possession and demonstrate to the jury his actions just before he was shot. We find nothing prejudicial in this demonstration, because Gustafson had taken the witness stand and testified as to what happened; it was relevant to the issue of his credibility, whether he or the officers were telling the truth about Gustafson’s actions and conduct as he exited the armory. The precise question was whether Gustafson had his gun in hand.
Gustafson argues that he was entitled to separate trials on the charges of burglary and conspiracy. We find no merit at all to this argument since all the charges were related and grew out of the same conversation and course of conduct. Rules of Crim. Proc., Rule 22.2.
The appellant argues his right to cross-examine Sgt. Bob Reynolds and John Ford was improperly limited by the trial court. There is some merit to this argument. At times counsel for appellant was unduly repetitious, a factor no doubt in the trial court’s occasionally limiting cross-examination. This error will no doubt not arise on a new trial. A cross-examiner is given wide latitude and cannot be unduly restricted in eliciting facts which affect a witness’ credibility. Haight v. State, 259 Ark. 478, 533 S.W. 2d 510 (1976).
When Gustafson took the witness stand, as a witness in his own behalf, he was asked by the prosecuting attorney about previous criminal convictions and previous misconduct. The trial judge permitted some of the questions over the objections of Gustafson’s lawyer.
There are circumstances where it is possible for the State to introduce into a criminal trial evidence that the defendant has committed crimes unrelated to those which he is charged. One circumstance is in its case in chief, where, in very limited circumstances, the State may offer evidence of other offenses. Ordinarily, such evidence is not permitted. It is prejudicial by nature and should only be used against a defendant in a criminal action in rare cases. See Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). Another circumstance is when a defendant in a criminal case takes the witness stand in his own behalf. His credibility becomes an issue and the State may, under certain circumstances, test that credibility by asking the defendant if he has been convicted of certain crimes or if he is guilty of certain misconduct. Moore v. State, 256 Ark. 385, 507 S.W. 2d 711 (1974). Gustafson was cross-examined both about previous convictions and about acts of misconduct.
First, Gustafson was asked on cross-examination if he had been convicted of burglary and larceny in Sharp County, Arkansas. He admitted that he had been. It does not appear from the record that this question was improper under Uniform Rules of Evidence, Rule 609. Rule 609 permits such a question only if the crime was punishable by death or imprisonment in excess of one year or if the conviction involves dishonesty or a false statement regardless of the punishment. The trial judge must determine if the probative value of the question outweighs its prejudicial effect. There are other restrictions, for example a 10-year time limit and a provision regarding the effect of a pardon. If a defendant denies being' convicted of such a crime, the conviction can be proved by extrinsic evidence.
Next, he was asked if he was not, in fact, guilty of possessing several thousand dollars worth of CB radio equipment which had been stolen from Jay’s CB Shop at Batesville. The trial judge sustained an objection to this question. He was then asked if he was not guilty of knowingly possessing a 4-wheel drive Chevrolet pick-up truck which had been stolen from Richard Thomas at Arkansas College in Batesville. Gustafson refused to answer this question, claiming his privilege under the Fifth Amendment. The judge ordered him to answer and he did. These two questions about Gustafson’s previous misconduct, because they were not related to convictions but to misconduct, are governed by Rule 608(b) of the Uniform Rules of Evidence which reads:
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.
Rule 608(b) of the Uniform Rules of Evidence changes Arkansas law. Before the adoption of the Uniform Rules it was proper to ask on cross-examination if a defendant was guilty of most any kind of felony. In Butler v. State, 255 Ark. 1028, 504 S.W. 2d 747 (1974), we reviewed some of our prior decisions which had held that it was proper in certain circumstances to ask a defendant if he was guilty of robbery, interstate transportation of stolen property, rape, larceny or assassination. The rationale of permitting such a question was that a person committing such a crime might be prone to lie.
There is no doubt that Rule 608(b) was intended to restrict the use of such evidence, especially in a criminal case. Our rule is based on the federal rule and most commentators take the position that Rule 608(b) should be interpreted restrictively. See McCormick, Evidence, § 42(2ded. 1972); Weinstein, Evidence, § 608[05] (1978).
We read Rule 608(b) to provide that the trial court may, if it finds good faith and that the probative value of such information outweighs the prejudicial effect, allow such a question about certain offenses. The most important change is that the question must be concerning misconduct which relates to truthfulness or untruthfulness. That is, one element of the offense alleged must be an act of dishonesty. The question cannot regard misconduct which has no relation at all to honesty. Weinstein, supra, indicates that misconduct relating to truthfulness would include forgery, perjury, bribery, false pretense and embezzlement. Obviously, some misconduct would not bear on truthfulness. For example, murder, manslaughter or assault do not per se- relate to dishonesty. Burglary and breaking and entering would not be such misconduct unless the crime involved the element of theft. Ark. Stat. Ann. §§ 41-2002, 41-2203. We believe that theft, as it is defined in the Arkansas Criminal Code, involves dishonesty. Ark. Stat. Ann. § 41-2201, et seq.
We are aware that the use of such information can be highly prejudicial to a defendant in a criminal case and that the use of such information may well be abused. No doubt Rule 608(b) was designed to curb this possible abuse. We find three conditions on the use of such information. First, the question must be asked in good faith. This has always been our rule. Balentine v. State, 259 Ark. 590, 535 S.W. 2d 221 (1976); Moore v. State, supra, and Butler v. State, supra. This means the court may require evidence of good faith before it permits such a question to be asked; that is, that the questioner must have credible knowledge that the offense has been committed, not just information based on rumor or speculation. Next, the court in its discretion should decide if the probative value of the question outweighs the prejudicial effect of such a question. Rule 403, Uniform Rules of Evidence, provides for excluding relevant evidence if its prejudicial effect outweighs its probative value. Finally, of course, the misconduct must relate to truthfulness or untruthfulness and that character trait.
The questions asked of Gustafson relate to misconduct which is defined as theft by receiving in Ark. Stat. Ann.§ 41-2206.
The prosecuting attorney asked Gustafson two questions: Both were, had he not, in fact, knowingly possessed certain stolen property, and the prosecuting attorney identified the property, time and place in both questions, as he should have. Those were, on their face, proper questions. The offense of theft by receiving requires that one receive, retain or dispose of stolen property knowing that it was stolen or having good reason to believe that it was stolen. Ark. Stat. Ann. § 41-2206. The witness should be able to answer such a question by a simple yes or no. The State may not go beyond that answer, as it may in the case of a conviction, and prove the misconduct by extrinsic evidence.
In the case of State v. Miller, 92 N.M. 520, 590 P. 2d 1175 (1979), the New Mexico Court dealt with the identical problem. In the Miller case there were some fourteen questions asked of the defendant relating to his guilt of various crimes. The Court said:
. . . The only purpose of the questions was to test defendant’s credibility. State v. Coca, supra. The crimes involved in the questions could not be proved by extrinsic evidence. Evidence Rule 608(b). Defendant answered each of the questions in the negative.
What then was the probative value of the questions? There was none. Under the balancing test required by Evidence Rule 403, the trial court abused its discretion in permitting the questioning because the questions were prejudicial and, in light of the answers, there was no probative value.
We do not hold that a question under Evidence Rule 608(b), which asks for an admission concerning a felony, can never be asked. Our holding is that any one of such questions is prejudicial, see State v. Rowell, 77 N.M. 124, 419 P. 2d 966 (1966) and, if there is nothing indicating the question has probative value on the question of credibility, it is an abuse of discretion to permit the question. When the question is under Evidence Rule 608(b), a prosecutor, who seeks to have a defendant make an admission concerning a felony when there has been no conviction, hazards a reversal absent a showing of probative value because of the prejudicial nature of the question.
We arrive at the same conclusions.
In Cox v. State, 264 Ark. 608, 573 S.W. 2d 906 (1978), two statements were made which are inconsistent with this opinion. It may have been the question asked in Cox was improper for other reasons, but our opinion does not show that. We said in Cox that it was improper to ask a defendant if he had not, in fact, committed a robbery on the same day of the offense with which he was charged. We said that the question itself was improper and in that regard we were mistaken. Such a question would not be impermissible under Rule 608 if it were asked in good faith and permitted in the discretion of the judge because robbery is an act of dishonesty.
We were also mistaken in Cox if we left the impression that a negative answer to an improper question results in no prejudicial error. There is no doubt that such a question harms a defendant’s case. When it is proper, about a type of misconduct that is relevant, it is allowed only because it is relevant to the determination of the credibility of the defendant. But to say that a negative answer always removes the prejudice in every case goes too far. Prejudicial error may result whether the question is properly phrased or not. We cannot predict whether prejudice can be removed in every case.
The trial court sustained an objection to the first question regarding the stolen CB radios. For what reason we cannot say. Then the trial court required Gustafson to answer the question about the 4-wheel drive truck. Gustafson claimed his privilege against self-incrimination regarding this question. The trial court, clearly in error, ordered Gustafson to answer the question. Rule 608(b), specifically the last paragraph, provides that the privilege against self-incrimination is preserved in such circumstances. This was prejudicial error that requires us to reverse the judgment of the court.
The difficult question for us is whether both of these questions may be asked of Gustafson at a retrial if he takes the witness stand. That presumes too much. First of all the judge sustained an objection to the first question for some reason finding it improper. No doubt the trial judge had good reasons for sustaining that objection. We would not presume that those reasons no longer exist, although they might. Obviously that question should not be asked again in this case unless the trial judge in advance makes a decision that it is a proper question, asked in good faith and its probative value outweighs its prejudicial error. The second question, also on its face a proper question, must withstand the same scrutiny by the trial judge whose discretionary judgment we cannot predict. That would, no doubt, have some bearing on possible prejudice. If both questions were deemed improper by the trial judge, it would be difficult to say prejudicial error was not committed by the asking alone.
We cannot predict for future cases what questions will or will not be so improper as to require a new trial. We do not intend to be so restrictive in our application of Rule 608(b) as to remove a valuable tool in garnering the truth. However, we do want it made clear that the use of such evidence in a criminal case creates a real hazard of a mistrial or a reversal. Prosecuting attorneys would be well advised to procure a ruling from the trial judge before asking such quetions before a jury.
Reversed and remanded.
Harris, C.J., not participating.
Byrd, J., concurs.
Holt, J., dissents. | [
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Ernie E. Wright, Chief Judge.
This is an appeal from a decision of the Workers’ Compensation Commission holding appellant responsible for certain medical expenses.
The appellee sustained a compensable injury on May 24,1977, while working for appellant, Artex Hydrophonics. The accident resulted in compression fractures to some four or five vertebrae. When claimant continued to suffer pain after two weeks hospitalization his orthopedic surgeon, Dr. Hathcock, referred him to Dr. Fecher, a specialist in hematology and oncology. Tests revealed he had multiple myeloma which predated the injury. The myeloma had weakened his bones predisposing him to the compression fractures sustained in the accidental injury. He responded well to the myeloma treatment which was necessary not only to halt the disease but served to stabilize the bones and thereby help heal the fractures. The medical evidence shows the fractures had healed no later than December 19, 1977, when Dr. Hathcock last saw claimant, and new problems with the fractures are not anticipated in the near future.
The issue before the Commission was whether appellants are liable for medical expenses incident to the treatment of the myeloma which preceded the injury, was not aggravated by the injury and was discovered incident to treating the fractures arising from the injury. The fractures simply resulted in earlier discovery of the myeloma.
While the myeloma would have been treated upon discovery in any event, it was necessary to treat the myeloma to stabilize the bone structure to accomplish healing of the fractures.
On appeal appellants concede responsibility for medical expenses in the initial diagnosis and treatment of the myeloma as this was necessary to promote healing of the fractures. They deny responsibility for the continuing treatment of the myeloma on the ground such treatment is not a medical expense stemming from the injury.
The Commission held the preponderance of evidence showed treatment of claimant’s preexisting myeloma was, at least through October 27, 1978, proper and necessary medical treatment incident to the compensable injury sustained in May 1977 for which appellants are responsible.
The treatment for the myeloma appears to have consisted of cobalt, chemotherapy and repeated blood tests made necessary because of the chemotherapy. The cobalt treatment has been given primarily for residual pain incident to the fractures although it has beneficial effects on the myeloma. The chemotherapy is to stop or retard the myeloma. Dr. Fecher testified, in a deposition on August25,1978, “If I remember right, within a couple months after being out of the hospital, he was probably in as good a shape as far as how he, you know, his back pain, as he is today, so, I don’t think any change has really taken place clinically, you know, say in the last ten months.” Claimant was discharged from the hospital on August 8, 1977. Dr. Hathcock testified claimant should have healed enough by the time he last saw him in December 1977, that after that point treatment would be only for the myeloma.
Ark Stat. Ann. § 81-1311 makes it the obligation of the employer to provide medical services reasonably necessary for the treatment of the injury received by the employee. The law does not require the employer to pay for medical expenses for the treatment of a preexisting disease not aggravated by the injury except to the extent it may be necessary to accomplish treatment of the injury.
There is substantial evidence to support the holding of the Commission that appellants are responsible for all of the medical.expenses in question through December 19, 1977, when Dr. Hathcock last saw claimant. However, the record appears to be incomplete as to what medical expenses were incurred after that date and the purpose of the expenses.
We modify the decision of .the Commission to hold respondents responsible for the medical expenses in question incurred through December 19,- 1977, but remand the case for further trial as to expenses incurred after December 19, 1977 and a determination of what part of such expenses were reasonably necessary for the treatment of the injury.
Affirmed in part as modified, and remanded in part. | [
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Darrell Hickman, Justice.
John Edward Swindler’s first trial for killing Randy Basnett, a Fort Smith police officer acting in the line of duty, was held in February, 1977. He was found guilty of capital murder and sentenced to die by electrocution. His trial was held in Fort Smith, Sebastian County. We reversed that conviction because the court failed to grant a change of venue and because the court failed to excuse three jurors. Swindler v. State, 264 Ark. 107, 569 S.W. 2d 120 (1978). The case was tried again but this time in Scott County, an adjacent county to the judicial district. Swindler was convicted the second time of capital murder and received the same sentence. This is an appeal from that conviction.
The shooting occurred when Swindler stopped off at Fort Smith, Arkansas apparently enroute to Kansas City from South Carolina. He pulled into the Road Runner Service Station just off Interstate 540, which bypasses downtown Fort Smith. It was about 5:00 p.m., Friday afternoon, September 2, 1976.
Basnett, a Fort Smith policeman who was on duty, had stopped to drink a coke with Carl Tinder at the Road Runner Service Station. Tinder ran the service station, which included a small convenience store. Basnett had in the past dropped by from time to time to drink coffee or a coke with Tinder. As they were talking at the counter, inside the station-store, Swindler drove up and parked his vehicle in the middle lane of three lanes under the station canopy. His vehicle was headed east, the driver’s side facing the front of the station-store. Swindler went in and asked for directions to Kansas City. Basnett and Tinder told him how to proceed.
Swindler went back outside, raised the hood on his vehicle and was looking after the vehicle when Basnett left the station-store. Basnett got in his police vehicle, which was parked nearby, and drove around to the other side of the station, parking his vehicle to the rear of Swindler’s. Apparently Basnett made a radio call and then walked up to Swindler.
Two witnesses testified that Swindler shot and killed Basnett as the officer stood at the car door on the driver’s side. Basnett had not pulled his gun until after he was shot. Tinder was one of these eyewitnesses; he was inside the store; the other witness was a man named Steve Cardwell who said he was outside the station.
Basnett was able to fire five or six times through the car door before he died. Basnett fell back, fatally wounded. Swindler, although he was injured, was able to drive off. He was arrested shortly thereafter. The State Police District Headquarters was just across the street from the station.
Four guns and a rifle scope, as well as some ammunition, were found near the vehicle: a .38 Colt revolver, a .38 Smith and Wesson revolver, a 9 shot .22 automatic pistol, all fully loaded, and a .22 caliber rifle containing three live rounds. Over 200 rounds of live ammunition for the rifle were found in or near the vehicle. This evidence was introduced over Swindler’s objections.
Swindler’s version as to the actual shooting differed. He said he saw the policeman get in his car and thought he was leaving. Swindler went back to seeing after his car and had just gotten into it when he heard a “cock,” as a hammer being cocked on a pistol, heard something said to the effect, “damn hippie,” and was shot. He said he had a pistol in his belt and another in his pocket and, just as he was laying down the pistol he had taken from his belt, this happened; he turned instinctively and the gun went off. He said he did not know it was a policeman until after he fired. He claimed he was shot first.
He remembered seeing Tinder inside the station-store. He recalled after the shooting seeing some children about on bicycles. He did not recall seeing the other eyewitnes's, Cardwell.
The first trial was preceded by news coverage of the killing, of the funeral of the police officer, and of Swindler’s past. The coverage was substantial. In some instances the stories contained material that could and, in fact did, result in prejudice to Swindler’s right to a fair trial at that time in Sebastian County. The extent of that coverage was discussed at length in our opinion deciding the first appeal. Chief Justice Carleton Harris, in a concurring opinion, especially addressed the problem created by the news coverage of the killing and its relation to Swindler’s first trial.
Although the appellant in this case argues some of the same issues regarding a prejudiced community and jury, there is no evidence at all in this record of unfavorable pretrial publicity. The record we have regarding those arguments consists solely of the voir dire examination of veniremen (prospective jurors) from Scott County.
We have examined the record not only as to those allegations of error raised on appeal but also other errors as we do in such cases. Rules of Crim. Proc. Rule 36.24. We find no prejudicial error was committed and affirm the judgment and sentence of the trial court.
The first three arguments of error are related and will be discussed together.
I.
The trial court erred in denying the defendant’s motions for a mistrial and motions for a second change of venue when it was shown during voir dire of the jury that a fair and impartial jury could not be selected to try this case.
II.
The trial court erred in overruling the defendant’s motions to declare Arkansas’ venue statutes (Ark. Stat. Ann. Sections 43-1507 and 1518) which permits only one change of venue and Article 2, Section 10 of the Arkansas Constitution which permits a change of venue only to another county in the judicial circuit unconstitutional in violation of the fair trial and due process clauses of the United States Constitution and in refusing to change the venue the second time to a county where the defendant can receive a fair and impartial trial.
III.
The trial court erred in refusing to grant the defendant’s motion to excuse jurors for cause (either as a group or singly) and requiring the defendant to exhaust his preemptory challenges to excuse them and to take several jurors who should have been excused for trial.
The United States and Arkansas constitutions entitle a defendant to a fair trial. If, because of pretrial publicity, an impartial jury cannot be seated to try a defendant, his right to a fair trial is violated. Irvin v. Dowd, 366 U.S. 717 (1961); Swindler v. State, supra; Ruiz & Van Denton v. State, 265 Ark. 875, 582 S.W. 2d 341 (1979).
Swindler’s first argument is that, in Scott County, he could not be tried by an impartial jury.
While Swindler’s counsel moved six times for a mistrial or change of venue during the 5 days’ voir dire examination, no evidence at all was offered of pretrial publicity. No affidavits or testimony, showing pretrial publicity or ill feelings in the community as a result of the killing, was offered, as they had been in Swindler v. State, supra or Ruiz & Van Denton v. State, supra.
Our law provides affidavits or sworn testimony must be offered to support a motion for a change of venue. Ark. Stat. Ann. § 43-1502.
The only evidence we have of prejudicial pretrial publicity is the voir dire testimony of the prospective jurors as 120 jurors were examined. Swindler had not exhausted his preemptory challenges until after the 11th juror had been selected.
The trial court, no doubt mindful of our decision in the first Swindler case, was careful and took pains in selecting this jury.
The fact 120 were examined is not, standing alone, enough to conclude a fair and impartial panel could not be seated.
The judge excluded over 79 people for cause. The jurors seated, while in some instances acknowledging that they knew generally of the crime, Swindler, or the first trial, all said they could set aside what they had heard and try Swindler on the facts and according to the law.
The test of whether pretrial publicity has prejudiced a juror was set forth in Irvin v. Dowd, supra. It reads:
It is not required that the jurors be totally ignorant of the facts involved ... To hold that the mere existence of any preconceived notion as to the guilt or innocence of the accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented at court. 366 U.S. at 722-723.
Deciding to seat a juror challenged for bias is a discretionary matter with the trial judge. To reject a potential juror, the judge must be satisfied that the juror’s state of mind is such that he cannot render an impartial judgment and that seating him will result in substantial prejudice to the rights of the defendant. Jones v. State, 264 Ark. 935, 576 S.W. 2d 198 (1979).
Swindler’s attorney did not move to strike 9 of the jurors selected. One was overseas at the time of the killing; another had read or heard nothing of the case, except from her husband; one knew nothing of the facts but only vaguely recalled “something” about it; another had read, some three weeks before this trial, the local paper in Scott County about the killing; one recalled some news accounts and probably decided Swindler was guilty because he had been found guilty before; one had seen a “little bit” on T. V. and read in the local paper that a Fort Smith policeman was shot. Another had heard nothing and knew nothing. All of these were selected with no objection. The last juror selected, who knew nothing, was selected after the defense had exercised all preemptory challenges.
The three jurors selected, that the defense challenged for cause, were all selected when the defense had remaining a preemptory challenge. These three did admit to having more knowledge than the others.
Thurman Jones had read the Fort Smith newspapers and seen the “case on T. V.” He also read that Swindler was accused of killing two others in South Carolina. He had assumed Swindler was guilty since he had been convicted. Jones was questioned extensively. He acknowledged he could set aside all his ideas and information and give Swindler a fair trial.
Milton Staggs had read and heard some about the case and had formed a “little bit” of an opinion. He said he would have no difficulty in setting aside any information or opinion he had formed.
Henry Sunderman had read and heard of the case. He declared he had no opinion about the case. Since a jury had convicted Swindler before, he had to conclude Swindler might well be guilty. But he said he could do his duty in this case and disregard any information he had about the case.
The judge, in his discretion, decided these jurors could serve. We cannot say the judge clearly abused his discretion in selecting these jurors.
There is no comparison at all between this case and the first Swindler case and the Ruiz & Van Denton case. The appellant cites as controlling the cases of Irvin v. Dowd, supra, and Sheppard v. Maxwell, 384 U.S. 333 (1966), the case involving Dr. Sam Sheppard. In both Irvin and Sheppard there was strong evidence of pretrial publicity that prevented the selection of a fair jury. As we indicated there was no such evidence offered in this case. The only real argument the appellant has is that over 80% of those questioned were excused for cause.
We have independently examined the voir dire, as we are required to do in such cases. We find that the facts in Swindler’s second trial regarding the composition of the jury are not unlike those that were found to exist in the case of Murphy v. Florida, 421 U.S. 794 (1975). In the Murphy case the Court also found that a considerable number of jurors knew of Murphy’s crimes and his past crimes. However, the Court did not find that such information alone required a reversal of Murphy’s conviction. The Court compared the difference between Murphy’s case and that of Irvin v. Dowd, supra. The Court stated:
The voir dire in this case [Murphy’s] indicates no such hostility to petitioner by the jurors who served in his trial as to suggest a partiality that could not be laid aside. . . .
Applying the tests we have recited, we must conclude that the appellant has not demonstrated such prejudice in the community nor bias on the part of any juror that would require a new trial.
The second argument is meritless. The Arkansas law permitting only one change of venue, and that to a county within the judicial circuit, is not on its face unconstitutional. The case of Irvin v. Dowd, supra, does not support appellant’s argument. The Court in Irvin ordered a trial in another county, contra to state law, because the trial judge refused a change of venue simply because state law forbade it. Also, the record in the Irvin case, like that in Swindler and Ruiz & Van Denton, was replete with evidence of pretrial publicity and a change of venue was obviously necessary.
It is not necessary for us to decide whether these venue laws can result in a denial of a right to a fair trial and due process of law. The question is, could Swindler receive a fair trial, by an impartial jury, in Scott County? We conclude he could.
The third argument has no merit. The single fact that over 80% of the jurors questioned were excused for cause is not sufficient to find that a mistrial should have been granted or change of venue ordered. That is only one consideration. The judge and lawyers spent 5 days selecting a jury. Except for the three jurors objected to, it can hardly be argued the jury was unacceptable. The fact the defense had to use its preemptory challenges (as did the State) is no reason to find a jury could not be seated.
IV.
The trial court erred in denying the defendant’s motion in limine to prohibit the questions of the veniremen on voir dire about their feelings concerning the death penalty.
V.
The trial court erred in excusing for cause any or all of the four veniremen who expressed opposition to the imposition of the death penalty.
These two points were argued as one by the appellant.
The appellant filed a motion in limine, which was denied, asking that the State not be allowed to ask prospective jurors whether they opposed the death penalty. Without citing any authority, it is argued that such a procedure denies a defendant a jury composed of a cross-section of the community and, therefore, violates the fair trial and due process requirements of the United States and Arkansas constitutions. This argument does not have any merit as we will explain in our answer to the fifth assignment of error.
The fifth allegation of error is that four prospective jurors were improperly excused because they expressed opposition to the death penalty. In the case of Witherspoon v. Illinois, 391 U.S. 510 (1968), the practice of permitting a prosecuting attorney to qualify a jury for the death penalty was not prohibited; what was prohibited by Witherspoon is the exclusion of ajuror who is not irrevocably opposed to the death penalty.
Of the four prospective jurors excluded by the court on the motion of the State, three of them stated without equivocation that they opposed the death penalty under any circumstances. The other witness did make a statement at one point that he did not believe “he could impose the death penalty.” That witness, Murl Carmack, testified as follows:
Q. Let me ask you this. Do you think the death penalty is proper punishment for some crimes?
A. I wouldn’t think so.
Q. Do you believe in the death penalty?
A. Not so much.
Q. Do you understand that under the law of Arkansas that it is the jury that finds whether a person is guilty or not guilty, and then if the jury finds the defendant guilty then the jury actually sets the punishment, that is not done by the Judge. Now, if you were on this jury, and you listened to all the evidence, could you, under any circumstances, vote for the death penalty?
A. I wouldn’t want to.
Q. I understand you might not want to, but you know it is the law of Arkansas, and if you listened to the evidence and you found that under our law this was a proper case for the death penalty, then could you follow Arkansas law, or would you stick to your own personal feelings?
A. Well, now I would stick to what I believe in.
Q. So are you telling me that no matter what the facts are, or what the law is, that you would not vote for the death penalty?
A. No, I don’t think I would.
Q. Okay, now you say you don’t think you would. Can you tell me for sure that you would or would not?
A. Well, I wouldn’t then, I will put it that way. [Emphasis added.]
Q. No matter wh at the facts were, or what the law was, you would not vote for the death penalty?
A. No, I don’t believe I could, and then have a clear conscience.
THE COURT: No, what he has asked you is, and I want to ask you, too, to be sure that I understand. Is that feeling that you have or your belief so fixed and strong that regardless of what the facts might be, regardless of how bad they might be, or how aggravating they might be, in any case, that under no circumstances could you consider imposing the death penalty?
A. I wouldn’t. [Emphasis added.]
THE COURT: In any case?
A. I don’t believe I would.
DEFENSE ATTORNEY: I have no questions, your Honor.
THE COURT: All right, he will be excused for cause.
We are satisfied that this juror was irrevocably opposed to the death penalty and the court was not wrong in excluding the juror for that reason. See McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979).
VI.
The trial court erred in overruling the defendant’s motion to reduce the charge on the grounds that the Arkansas death penalty is unconstitutional.
The appellant concedes that we have consistently ruled this point to be without merit, beginning with Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977), and in every case thereafter where the question has been raised.
VII.
The trial court erred in denying the defendant’s motion to reduce the charge on the grounds that causing the death of a police officer in the line of duty should not constitute the offense of capital murder.
The appellant concedes that we held this argument to be without merit in the first appeal. Swindler v. State, supra.
VIII.
The trial court erred in overruling the defendant’s motion to reduce the penalty on the grounds that death by electrocution is cruel and unusual punishment.
The appellant concedes that we held this argument to be without merit in the case of Ruiz & Van Denton v. State, supra.
IX.
The trial court erred in permitting in evidence any weapons other than the alleged murder weapon over the defendant’s objection on relevancy grounds.
The appellant concedes that we held this argument to be without merit in the first appeal. Swindler v. State, supra.
X.
The trial court erred in permitting in evidence in rebuttal, testimony and exhibits about highway signs along Interstates 40 and 540 over the defendant’s objections on relevancy grounds.
The appellant argues that the State simply called two policemen before the jury to prejudice them by showing that policemen were interested in the case so the defendant would receive the death penalty. The State argues that the testimony of the policemen regarding the signs was used to impeach Swindler’s testimony that he was looking for Highway 71 to go to Kansas City. The officers’ testimony indicated that there were two exits, before the exit Swindler took to the service station, which were clearly marked “Highway 71 North,” thereby impeaching to some degree Swindler’s testimony that he was looking for a way to reach Highway 71. We find no merit at all to the appellant’s conclusion that the officers were used to prejudice the jury. Certainly we find no prejudicial error resulting from the testimony.
XI.
The trial court erred in denying the defendant’s motions for a directed verdict and to reduce the charge at the close of the state’s case and when both sides rested.
Essentially this argument was answered in Swindler v. State, supra. We view the evidence on appeal most favorable to the appellee. Viewed in that light there was substantial evidence of premeditation and deliberation. The four loaded guns were enough circumstantial evidence for the jury to conclude that he intended to use them; this, together with the two eyewitnesses’ testimony is substantial evidence of the elements of the crime of capital felony murder.
XII.
The trial court erred in denying the defendant’s motion for a continuance of the sentencing stage of the trial so that the defendant could present an expert witness who was prepared to testify that the cruel nature of death by electrocution and possibility of rehabilitation are mitigating circumstances.
Whether a trial court grants or denies a continuance is a matter of discretion and we only set aside a ruling if we find the court abuses that discretion. Russell & Davis v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977). We find no such abuse in this case. This argument is misplaced because whether death by electrocution is cruel and unusual punishment is a question of law and not of fact; nor is it a circumstance to be considered when a jury deliberates on mitigating circumstances . It is not up to the jury to decide how a defendant dies. Death by electrocution has been decided by the General Assembly as the means of execution in such cases. Ark. Stat. Ann. § 43-2611 (Repl. 1977).
XIII.
The trial court erred in permitting in evidence over the defendant’s objection State Exhibit No. 55 which purported to reflect that the defendant had been convicted of armed robbery and in overruling the defendant’s objection to Sentencing Instruction (a) which permitted the jury to find that the defendant committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person.
We ruled this evidence admissible on the first appeal. Swindler v. State, supra.
XIV.
The trial court erred in overruling the defendant’s objection to Sentencing Instruction (B), which permitted the jury to find that the defendant in the commission of the capital murder, beyond a reasonable doubt, knowingly created a great risk of death to a person other than the victim.
We ruled against the appellant on this same issue in the first Swindler case. However, it is argued that the testimony was substantially different in this case. Swindler’s attorney cross-examined in detail the witness Tinder who was inside the service station at the time of the killing. He argues that it was impossible for Swindler to have intended to create a great risk of death to other people. We disagree. The shots were fired in the direction of the station-store front. The evidence is that the officer was struck twice and that Swindler fired twice, but that does not mean that Swindler had any regard for other people in the vicinity. According to the evidence there were at least three people other than the officer in the vicinity; Tinder, Cardwell and Mrs. Cardwell. Swindler could not even swear that he only shot twice; he could not swear that he knew he shot a policeman until after it was done. Tinder was standing behind the counter inside the store front that was virtually all glass. The fact that there may have been a few gasoline pumps or stanchions between Swindler and the store front begs the question. The question is, was there sufficient evidence to support a finding that Swindler knowingly created a great risk of death to other people. There was ample evidence Swindler had no regard for the lives of others in the vicinity. Such evidence was in Tinder’s testimony, Cardwell’s testimony, all those loaded guns, and even Swindler’s own testimony.
XV.
The trial court erred in permitting in evidence over the defendant’s objections State’s Exhibits Nos. 56 and 57 which were a computer printout message, complaint and warrant for defendant’s arrest for unlawful flight to avoid prosecution and in overruling the defendant’s objection to Sentencing Instruction (D) which permitted the jury to find as an aggravating circumstance that the capital murder was committed for the purpose of avoiding a lawful arrest or effecting an escape from custody.
We ruled against the appellant’s argument on this issue in the first appeal. Swindler v. State, supra.
XVI.
The death verdict was returned on the basis of passion and prejudice by the jury and when this court compares death penalty cases, the death verdict should be set aside and the defendant be sentenced to life without parole.
We find no evidence that the jury’s verdict was based on passion or prejudice. We adhere to the majority opinion in Collins v. State, supra, which says that we will compare death penalty cases and that we can reduce a sentence if we find it was the result of passion and prejudice. We have reduced one death sentence to life without parole. Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977). Comparing this killing to others that we have considered, there is hardly any room for argument that the appellant has any grounds for asking for leniency.
In conclusion, Swindler received a fair trial. Therefore, the judgment and sentence in this case are affirmed.
Affirmed.
Harris, C.J., not participating.
The Court noted in Irvin that the state supreme court had held that the Indiana statute could be circumvented if a defendant could not get a fair trial on one change of venue. Irvin v. Dowd, supra, at 721. | [
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Ernie E. Wright, Chief Judge.
This appeal to the Arkansas Supreme Court was assigned to the Court of Appeals pursuant to Rule 29(3).
Appellees, Johnny Wallace and Chester McGee, filed action for damages against Appellants, J. L. Wilson Farms, Inc., Humphrey Flying Service, Inc. and Ned Brown, for damages to their respective 1974 cotton crops, allegedly caused by aerial spraying of a hormone type herbicide, 2-4-D, on the Wilson rice fields in the vicinity of appellees’ cotton crops.
From a jury verdict and a judgment awarding damages in the aggregate amount of $36,717.20 in favor of Wallace and $980.35 in favor of McGee, appellants bring this appeal and allege three points for reversal which are hereafter separately discussed.
I.
Appellants contend the court erred in refusing appellants’ motion to exclude from the jury the fact that the pilot of the plane, Ned Brown, who made the aerial application of the Herbicide to the Wilson rice fields in the vicinity of appellees’ crops was not licensed to do so. Appellants contend the evidence had slight relevance, if any, and great prejudicial effect.
The court overruled appellants’ motion to exclude testimony showing the Appellant, Ned Brown, was not licensed by the Arkansas Plant Board to make applications of the hormone herbicide by aircraft.
Act 152 of 1951 declared 2-4- D and any herbicide which the Plant Board, after investigation and public hearing, determines to be injurious to vegetation other than vegetation it was intended to affect, to be a public nuisance and prohibited the sale or use except in accordance with regulations as might be made by the State Plant Board. The regulation of the Plant Board issued pursuant to the Act was received in evidence as joint exhibit #3. The regulation determines 2-4-D in certain conditions to be highly injurious to vegetation other than vegetation it is intended to affect, and it requires any commercial aerial applicator to first obtain authorization from the State Plant Board. It provides for the screening of such pilots based on their past history in the application or supervision of application of such herbicides. Appellees were permitted to prove the pilot, Appellant Ned Brown, had not complied with the regulation by obtaining the required Plant Board authorization. Evidence was also presented showing the aircraft belonging to the Appellant, Humphrey Flying Service, Inc., had not been inspected by the Plant Board to determine whether the spraying equipment of the plane met the requirements of the Plant Board regulation. Certificates are issued by the Board for aircraft and equipment approved for spray applications. The regulation details maintenance requirements incident to the spraying system and the requirement of notification to the Plant Board in writing of the name and address of the owner or owners of susceptible crops treated by the aircraft and the date of the treatment. The regulation further provides that unannounced spot check of equipment and application methods and jobs in progress will be made by the Plant Board; and that only pilots holding valid authorization from the Plant Board may apply hormone-type herbicides.
The regulation is extensive and detailed. The obvious intent is to prevent damage to others in the vicinity when a herbicide of this type is applied by aerial spraying. There was evidence aerial application of this herbicide results in floating of the substance for substantial distances with resultant damage to broad leaf crops. Injury to crops in the vicinity is partially dependent on weather conditions.
Neither J. L. Wilson, Inc., the owner of the rice fields being sprayed, the pilot who did the spraying, Ned Brown, nor Humphrey Flying Service, Inc., the owner of the aircraft involved, notified the Plant Board of the spraying. The plane and equipment were not approved by the Plant Board and the pilot, Mr. Brown, was not authorized to make aerial applications of the herbicide. Although Mr. Brown testified he was familiar with the requirements of the Plant Board and that his plane and equipment were up to the standards required by the regulation, he was one of the defendants in the action and the court properly admitted evidence showing the appellants had not complied with the regulations of the State Plant Board calculated to safeguard the interests of others in the vicinity of the spraying. The appellees were not bound by the testimony of the Defendant Brown and the evidence of failure to comply with the Plant Board regulation was properly admitted for the jury’s consideration along with all other evidence. We hold the regulation was a proper consideration for the jury in determining the issue of negligence. Dunn v. Brimer, 259 Ark. 855, 537 S.W. 2d 164.
II.
Appellants contend there is no substantial evidence from which the jury could find that the herbicide, applied in a water base by aircraft, to a rice field over a mile from appellees’ nearest cotton fields was an inherently dangerous product as defined by the court. The court told the jury that an “inherently dangerous product” is one, use of which for the intended purpose necessarily involves a risk of serious harm to the property of others regardless of the degree of care which is used in its preparation and use.
Nine of the jurors answered “yes” to the interrogatory submitted to them on the inherently dangerous product theory of the case.
There was substantial testimony in the record tending to show the application of this herbicide by air necessarily involves a risk of serious harm to broad leaf crops of others regardless of the degree of care which is exercised in its use, and the evidence was sufficient to support the jury finding that the product is inherently dangerous when used under the circumstances in evidence. Chapman Chemical Company v. Taylor et al, 215 Ark. 630, 222 S.W. 2d 820.
III.
Appellants contend that it was only because appellees were permitted to use incompetent evidence that any material damage was shown.
The evidence of which appellants complain relates to the introduction by appellees of yields of cotton per acre for prior years on the lands for which crop damage is claimed for 1974, the averaging of yields of prior years, and showing the difference between the prior three and four years average yield and the 1974 yield. The difference was categorically stated as the crop loss for 1974. It is contended the evidence of injury to the 1974 cotton crop by comparison with prior years average yields was too speculative to submit the issue to the jury. This evidence was introduced by appellees without objection by appellants. However, appellants moved for a directed verdict at the close of the appellees’ case and also at the close of the appellants’ case, contending the evidence of production on the same fields for prior years had no validity bearing on the amount of yield loss for the year 1974 because, it was contended that there are great variations in year to year yields. Also, appellants contended there was considerable cold and wet weather in the summer of 1974 that reduced the yield. Appellants contend any damage to the crop in 1974 should have been shown by a comparison of yields for that year in undamaged cotton fields in the same vicinity with similar soil and farming methods.
However, evidence was offered on behalf of the Appellee, McGee, of the reduced production on his thirteen acres of cotton as compared to his nearby undamaged cotton field.
Appellants contend the evidence was too speculative and conjectural to submit the issue of damages to the jury because of lack of substantial proof of damages, and that there was no proof of costs that would have been incurred incident to harvesting and marketing of the lost portion of the cotton crop, had it not been damaged.
We conclude from the evidence that the yield from cotton grown on the same lands in the area here involved is affected so much by weather conditions and other variables that the use of an average yield per acre for the preceding three or four years is not a reliable guide to the yield that would have been reasonably expected in the year 1974, absent injury from the herbicide. However, the testimony of Appellee McGee whose cotton lands were near the Wallace cotton fields and three-fourths mile from the Appellee Wilson rice fields reflected a per acre loss in yield of his cotton as compared to his nearby undamaged cotton in 1974 in the amount of 161 pounds per acre. We find this evidence to be the only substantial and reliable evidence upon which to predicate judgments in favor of appellees. Any judgment in excess of the amount warranted by this evidence would necessarily depend upon speculation and conjecture. It is to be noted the testimony of Appellee McGee and appellants’ witness, Bobby Frizzell, showed they sustained a large reduction in yield in their 1974 undamaged cotton fields, on lands similar to the Wallace and Me Gee cotton lands, a fact which further demonstrates the speculative nature of attempting to determine crop injury by use of production figures for prior years.
Computing the loss of the Appellee Wallace for the 299.1 acres of cotton at a reduced yield, reasonably attributable to the spraying, of 161 pounds of cotton per acre would result in an aggregate yield loss in 1974 in the amount of 48.155.1 pounds. The evidence shows the cotton brought thirty-nine cents per pound and this would amount to a loss of $18,780.49. The seed on this amount of cotton at $20.00 per bale, as shown by the testimony, would have yielded an additional $1,926.20, giving a gross loss damage to the Wallace cotton in the amount of $20,706.69. This would be reduced by a payment in the amount of $289.21 Appellee Wallace received as a disaster payment from the ASCS Office for that year, leaving a net damage in the amount of $20,417.38 as the maximum net damage to Appellee Wallace supported by substantial evidence. It is true this makes no allowance for any reduction of damages by costs that might have been incurred in the harvesting and marketing of the portion of the crop lost by reason of damages. However, the evidence reflects Wallace and McGee each had his own cotton picker and the testimony was there would have been no extra cost. It may well be that any extra cost would have been negligible since the machinery had to be operated over the lands to gather the reduced yield available for harvesting. The jury was properly instructed and we find no prejudice under this contention, Moore v. Lawson, 210 Ark. 553, 196 S.W. 2d 908 (1946).
The evidence of reduced yield on the 13 acres of herbicide damaged cotton belonging to Appellee McGee showed a reduction in yield as compared with other parts of his cotton crop on similar lands for the year 1974 in the amount of 161 pounds per acre and an aggregate loss of 2,093 pounds of cotton. He received thirty-eight cents per pound for his cotton and this shortage amounted to $795.00. His testimony showed the loss on seed for this amount of lint weight would be from $80.00 to $100.00. Appellee McGee also offered evidence of what his 1974 shortage would run using prior three years’ production as a basis for determining loss. Using this method his loss was stated to be $988.00 plus $100.00 for seedloss. We hold the maximumlossto Appellee McGee supported by substantial evidence to be $895.00.
The judgments are reduced to the amounts herein stated in order to strip the judgments of amounts awarded upon speculative evidence calculated to determine the crop loss by using cotton production averages for prior years as a basis. The evidence was patently unreliable for establishing the loss in yield for 1974. The appellate court has authority to reduce the judgments to amounts supported by substantial evidence. First National Bank of Minneapolis v. Malvern, 171 Ark. 994, 287 S.W. 185 (1926).
We do not suggest the prior years’ yields would be incompetent evidence for corroborative purposes. We merely hold that loss in production simply using the average of such yields as a basis for determining crop damage or injury does not constitute substantial evidence to support a verdict to the extent the verdict is supported only by such evidence.
The judgment in favor of Appellee Wallace is modified by reducing the aggregate judgment to $20,417.38; and the judgment in favor of Appellee McGee is modified by reducing same to $985.00.
As modified the judgments are affirmed, and the modified judgments are pro-rated among the three appellants on the same per centum basis as the original judgments.
Newbern, J., dissents, and Penix, J. Joins in the dissent. | [
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Carleton Harris, Chief Justice.
We find no merit in the petition for rehearing on the main case, but, in line with our decisions in St. Louis Southwestern Railway Company v. Clemons, 242 Ark. 708, 415 S.W. 2d 332, and Hayes Brothers Flooring Company v. Carter, Admx., 240 Ark. 522, 401 S.W. 2d 6, the cause is remanded for another trial, rather than dismissed. In Hayes v. Carter, supra, we said:
“Appellant asks that we reverse and dismiss, blit, after due consideration, we think it is possible that the case has not been fully developed. In fact, our ordinary procedure in reversing judgments in law cases is to remand for another trial, rather than dismiss the cause of action. It is only where it clearly apjjiears that there can be no recovery that we consider it proper to dismiss the cause. Pennington v. Underwood, 56 Ark. 53, 19 S.W. 108, and Arkansas Natural Gas Company v. Gallagher, 111 Ark. 247, 163 S.W. 791.”
It might be added that, in remanding this cause, we have given no consideration whatsoever to the so-called “petition for new trial.” | [
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J. Fred Jones, Justice.
This is a workmen’s compensation case involving two consolidated claims for death benefits brought by the widows of the two decedents. The question before the Commission was whether the decedents were in the course of their employment as employees of Ward Body Works at the time of their injuries and resulting deaths. The question before us on appeal is whether there was any substantial evidence to sustain the findings and orders of the Commission.
The Workmen’s Compensation Commission found that the decedents were independent contractors and denied the widows’ claims for compensation death benefits on that basis. On appeal to the circuit court the findings and orders of the Commission were affirmed. The widows of the decedents have appealed to this court and designate the following points for reversal:
“That Mr. Sallis and Mr. Carter were employees of Ward Body Works at the time of their deaths, and not independent contractors.
Death of the two men arose out of and in the course of their employment, and the Commission’s decision otherwise is not supported by substantial evidence.”
The decedents, Richard Sallis and Milton Carter, along with two vacationing Arkansas State Policemen, entered into verbal arrangements with Ward Body Works at Conway, Arkansas, to deliver four new buses to purchasers in and near Los Angeles, California. Each individual was to drive a bus and the drivers were paid in advance 14 cents per mile for driving the buses to California. They were to be reimbursed the actual cost of gas and oil and any other actual expenses on the buses in transporting them to California. Upon delivery of the buses to the consignees in California, they were to obtain receipts which were to be returned to Ward along with their receipts for gas and oil and any breakdown repairs, or other bus expenses incurred on the trip. After delivery of the buses in California, the drivers were on their own and under no direction or control whatever by Ward.
All four drivers, including the decedents, left Conway on October 9, 1967, and each drove a bus to California, reaching their destination and delivering the buses on October 12, 1967. After delivering the buses in California, the decedents went by plane from Los Angeles to San Francisco where they both visited with Mr. Sallis’ son for a couple of days. By prior arrangement the son had purchased a Renault automobile for Mr. Sallis aud both decedents were on their way back to Arkansas from San Francisco when they both died as a result of injuries sustained in an automobile accident near Seligman, Arizona.
The question before us on appeal is whether there was any substantial evidence to sustain the Commission and the circuit court in holding that the decedents were independent contractors and not employees of Ward.
The usual test in distinguishing an ¡employee from an independent contractor is set out in Ozan Lumber Co. v. Tidwell, 210 Ark. 942, 198 S.W. 2d 182, as follows:
“It has been said in many cases that the vital test in determining whether a person employed to do certain work is an independent contractor, or a mere servant, is the control over the work which is reserved by the employer. Broadly stated the rule is that, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor.”
Quoting from 31 C.J. 473, 474, in the Tidwell case, this court continued:
“It is impossible to lay down a rule by which the status of men working and contracting together can be definitely defined in all cases as employees or independant contractors. Each case must depend on its own facts, and ordinarily no one feature of the relation is determinative, but all must be considered together. Ordinarily the question is one of fact.”
In 99 C.J.S., § 92 is found the following:
“In determining whether a person doing work for another is an employee, within a compensation act, or an independent contractor, although the actual exercise of control is a factor to be considered, the significant or ultimate question is not whether the party for whom the work is being done actually exercises control over the worker, the work, or the manner or method of doing it, or actually directs, instructs, or supervises, but the real question is whether such party has the right, or power, to control, direct, or supervise.
Actual interference by the employer with the work or control is not the test, nor is actual regulation of the details of the work, or the giving of instructions; it is the right to interfere that determines.”
In the case of Moaten v. Columbia Cotton Oil Co., 193 Ark. 97, 97 S.W. 2d 629, this court said:
“This court held, in the case of Moore Lumber Co. v. Starreti, 170 Ark. 92, 279 S.W. 4, that the vital test in determining whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved "by the employer. Stated as a general proposition, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor. An independent contractor is one who, exercising an independent employment, contracts to do a certain piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of the work.”
In the case of Moore and Chicago Mill & Limber Co. v. Phillips, 197 Ark. 131, 120 S.W. 2d 722, holding logging contractors to be independent contractors, this court said:
“By a long line of decisions this court is committed to the universal rule that, where the contractor is to produce a certain result, according to specific and definite contractual directions, agreed upon and made a part of the contract, and the duty of the contractor is to produce the net result by means and methods of his own choice, and the owner is not concerned with the physical conduct of either the contractor or his employees, then the contract does not create the relation of master and servant. This court has consistently accepted and stated the settled rule that oven though control and direction be retained by the owner, the relation of master and servant is not thereby created unless such control and direction relate to the physical conduct of the contractor in the performance of the work with respect to the details thereof. St. Louis, I.M.&S. Ry. Co. v. Gillihan, 77 Ark. 551, 92 S.W. 793; Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S.W. 4.”
The arrangements made between Ward and the decedents are evidenced by the following testimony. Mr. Coy McCaskill, transportation manager of Ward, testified as follows:
“Q. Were you contacted... by a Mr. Sallis with reference to driving a bus to California.. .1
A. ... [H]e came up there about October the 7th about two days before they went to California. Said he had a son in California and if we had some buses—
# # #
He said he had a son that lived in California and if we had some buses going out there, he’d like to deliver one and visit him a few days.
1 told him, I said, ‘Yeah, you can stay as long as you want to if we have some more going in the next short time, why, we’ll notify you.’ And I said ‘After you get the bus delivered, why, you’re on your own and you can stay as long as you want to stay.’
... Mr. Sallis came up with those two State Troopers and I had an extra bus going and he called Mr. Carter back from Little Bock... he was to come on up to [sic] Little Bock and carry the fourth bus.”
An employee of the Arkansas State Police Department, Bichard Howard, was the driver of one of the four buses and testified as follows:
“Q. .. .what were you to do with the papers that you were given [with the bus] ?
A. ... we were to get them signed and bring one of them back to the Ward Body Works in Conway.
Q. ... was there any work which you were to perform at Ward Body Works after you returned back from California?
A. No,... I was doing this on my vacation.
Q. Did Ward... give you any instruction about what time the bus was to be delivered in California?
A. No...
Q. Did they tell you what highways to travel?
A. They suggested what highways we should travel, because we did ask them what route would be the best out there.
Q. Did they give you any certain speeds to drive at?
A. Well, the buses were governed, I believe, at sixty miles an hour.
Q. ... Did they tell you where you were to stop along the way?
A. No...
Q. Did they tell you where you should eat?
A. No...
Q. Were you reimbursed for any food expenses or lodging expenses on the way out there, or on the way back?
A. No...
Q. Did Ward Body Works give you any instructions about what to do after the bus was delivered in San Diego?
A. No...
Q. Did they tell you when to return to Arkansas?
A. No...
Q. Did they tell you how to return to Arkansas?
A. No...
* * *
Q. And how did you return to Arkansas?
A. On the Continental Trailway bus.
Q. And when did you arrive in Little Rock?
A. ... on the 14th ...
Q. When were you reimbursed?
A. ... I believe it was almost a week before I went up there because I met my wife and we left to finish my vacation out.
# * #
Q. Did you deliver any papers to the Ward Body Works at that time with reference to your'trip?
A. ... my gasoline and oil receipts and then a form they had sent out there for me to have signed . .. and return to them. ’ ’
The record in the case at bar indicates that the decedents were regularly employed by a screen door company in North Little Rock prior to making the trip to California. Mr. Sallis had his former employer wire $75.00 to him in San Francisco before starting* on his return trip to Arkansas. The record is not clear as to the’ decedents’ exact employment status when they agreed to drive the buses to California, but the record is clear that they had not worked for Ward at any time prior to this one trip and that no future work for Ward ivas contemplated. The record is also clear that the decedents were employed to deliver the buses to consignee in California and that Ward was only interested in, and concerned with, the results.
It is true that the decedents were required to return to Ward, the receipted copy of invoices for the buses delivered, but this was permitted to be done by mail and personal delivery was not required. We conclude that there was substantial evidence that the decedents. were independent contractors and not employees of Ward at the time of their injuries and resulting deaths. Even if the decedents had been employees of Ward within the meaning, of the Workmen’s Compensation Law, they had gone to San Francisco on personal missions of their own and had not returned within the course of their employment when the accident occurred. The judgment of the circuit court must be affirmed. •
Affirmed. | [
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George Rose Smith, Justice.
After the appellee had received unemployment benefits measured by the wages he was actually paid during a base year that ended March 31, 1977, he applied for a redetermination of the amount of benefits. His proof showed that in November, 1977, after the expiration of the base year, his employer paid him $800.55 in back pay for work performed during the last quarter of the base year, his wages having originally been miscalculated under the Davis-Bacon Act. The Appeal Tribunal and the Board of Review refused to redetermine the benefits, holding that the computation must be based upon wages actually paid during the base year rather than upon wages merely payable. The circuit court took the opposite position and reversed the administrative decision. We agree with the Board of Review.
The legislative history of the Employment Security Act leaves no doubt about the correct rule to be followed. The original 1941 statute based the determination of benefits upon wages “earned” by the employee and upon wages “payable” to him during the base period. Act 391 of 1941, § 2(c) and (n). But a 1943 amendment changed both references to wages “paid” to the employee. Act 138 of 1943, §§ 23(c) and 24(n). The word “paid” has been retained ever since in the definition of “wages.” Ark. Stat. Ann. § 81-1103(n) (Repl. 1976).
In Connecticut and Maryland, where the statutes were amended in substantially the same way, the courts hold that the issue depends upon the wages actually paid. Giammattei v. Egan, 135 Conn. 666, 68 A. 2d 129 (1949); Maryland Dept. of Employment Security v. Werner, 231 Md. 474, 190 A. 2d 786 (1963). In the Maryland case the court explained the reason for the amendments to the statute:
As a matter of administrative feasibility, if the Department were to credit wages when earned, it would be necessary in every instance where the claimant qualified for less than the maximum amount of benefits to contact his employer to determine from his payroll records when each dollar of wages was actually earned. Needless to say, this would not only delay the payment of benefits, but it would also impose a great, if not impossible burden on the Department and on every employer.
This was the very reason that impelled the amendments of 1941.
The legislative history of the Arkansas act leads to the same conclusion.
Reversed. | [
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Frank Holt, Justice.
The appellee brought this action to recover the down payment on a house. The chancellor found there had been a mutual agreement to rescind the oral contract of purchase and awarded ap pellee the sum of $1,860.00, together with interest from the' date of the alleged rescission. For reversal, appellant primarily contends that the evidence offered by appellee on rescission was insufficient as a matter of law in that the alleged agreement for refund was indefinite and uncertain as to terms and time of payment.
Appellee paid appellant $2,000 as a down payment on the purchase price of a house. The balance of $12,-025 was to be paid at the rate of $80 per month with interest. According-to appellee, her ability to purchase was dependent upon her securing a Veterans Administration loan for'the balance of the purchase price. With that understanding, she moved into the house. A few days later she went to a real estate office where she was advised that she would not be able to secure the VA loan. Appellant was then called to the office and acquainted with this fact. Appellee testified that appellant agreed he would refund the $2,000 down payment, less $100 for damage to the floor in the house and $40 for two weeks’ rent. Thus, the net refund of $1,860 was agreed upon. Appellee’s version was corroborated by her daughter and the real estate agent. Appellant testified that a refund was discussed but he made no oral agreement and refused to sign a written one. Further, that he could not make a refund until he had discussed it with his partner. ' According to appellee, the terms of the rescission and contract were definite and certain that he would refund $1,860 of the $2,000 deposit. She testified : .. .
“Q. What did he say about returning your money?
A. I don’t remember what he had, $1,600 or $1,700 and I said I would wait on the balance.
Q. What was his response to that?
A. He said he would give it back the .next day.”
Before appellee moved, appellant .furnished the material to repair the floor and never sent her a bill. There was evidence that after the appellee moved out of the house, appellant showed it to prospective purchasers and placed a “For Sale” sign on the premises. According to appellant, he advised any prospective purchaser that the house would be for resale when it was settled in court.
It is well settled that parties to an executory contract may rescind or modify it by mutual agreement. Elkins v. Aliceville, 170 Ark. 195, 279 S.W. 379 (1926); Morgan v. Shackleford, 174 Ark. 337, 295 S.W. 46 (1927); Swift v. Lovegrove, 237 Ark. 43, 371 S.W. 2d 129 (1963); 17A C.J.S., Contracts § 387. It is true, as urged by appellant, that time, place and amount are usually considered indispensable terms to a definite contract. Crateford v. General Contract Corp., 174 F. Supp. 283. However, the general rule is that a promise to perform within a reasonable time is sufficient. 17 Am. Jur. 2d., Contracts, §§ 80, 82.
In the case at bar we cannot say that the finding of the chancellor that the appellant and appellee mutually agreed to rescind the contract of purchase is against the preponderance of the evidence. We think the terms and time of payment are reasonably certain and definite and meet the usual standards where two laymen attempt a mutual understanding under the circumstances that are here presented.
Since there exists a mutual agreement to rescind the original purchase agreement, it becomes unnecessary to consider appellant’s contentions that appellee was never refused a YA loan and that he is willing to perform the original purchase agreement.
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J. Fred Jones, Justice.
This is an appeal by the landowner from a judgment of the Washington County Circuit Court denying his motion for a new trial in a condemnation case. The City of Springdale, through eminent domain, condemned a construction easement 50 feet wide and a permanent easement 15 feet wide for a sewer line across ten acres of the appellant’s tract of land containing 114 acres. By answer and counterclaim the appellant alleged damages in the amount of $25,000 for the taking of the easement,- and $20,000 further damage in diminished value of the remaining land because of water and air pollution and noxious odors arising from a sewage disposal plant adjacent to appellant’s property. The appellant also alleged damage in the amount of $5,000 for breach of contract in connection with fencing, paving and preservation of a spring in consideration for the grant of the easement.
A jury trial insulted in a judgment for the appellant landowner in the amount of $750 and upon appeal to this court from a judgment denying a motion for a new trial, the appellant relies on the following points for reversal:
“The court erred in overruling defendant’s motion for a new trial for the reason that the verdict was clearly against the preponderance of the evidence.
The jury’s verdict as to the damages was clearly inadequate and should be set aside with a new trial ordered.”
Botli of the appellant’s points were included in his motion for a new trial based upon his contention that the verdict was against the preponderance of the evidence. In the case of Taylor v. Grant Lumber Co., 94 Ark. 566, 127 S.W. 962, this court said:
“Trial courts have large discretion in the matter of granting new trials, especially upon the weight of the evidence, and this court will not interfere with such discretion unless it be made to appear that it was improvidently exercised.”
The reason for the rule is stated in Blackwood v. Eads, 98 Ark. 304, 135 S.W. 922, wherein this court said:
“Where there is decided conflict in the evidence, this court will leave the question of determining the preponderance with the trial court, and will not disturb his ruling in either sustaining a motion for new trial or overruling same. * * * The witnesses give their testimony under the eye and within the hearing of the trial judge. His opportunities for passing upon the weight of the evidence are far superior to those of this court. Therefore his judgment in ordering a new trial will not be interfered with unless his discretion has been manifestly abused.”
The only question before us on this appeal is whether the trial court abused his discretion in refusing to grant a new trial, and in answering that question, we do not consider preponderance of the evidence in any case. Where the motion is denied, we only consider the legal sufficiency of the evidence to support the jury verdict, and if there is any substantial evidence to support the jury verdict, we do not disturb the trial court’s action in denying a motion for a new trial. Price-Snapp-Jones Co. v. Brown, 184 Ark. 1143, 45 S.W. 2d 517; Chaney v. Missouri Pacific Railroad Co., 167 Ark. 172, 267 S.W. 564. Mueller v. Coffman, 132 Ark. 45, 200 S.W. 136.
So tlie question here boils clown to whether there was any substantial evidence to support the jury verdict. The appellant, Brady, testified that his entire farm consists of 114 acres; that prior to the present taking there was an underground sewer over the same area. Much of Brady’s testimony concerned a breach of contract he alleged in his counterclaim. The contract provided for payment of $3,500 for the easement, and for the reseeding of the damaged surface area. It also provided for the removal of rocks and other debris and for the erection of some fence. The appellee also agreed to build and surface a designated access road into appellant’s property and to install some tile in a spring on the property. In proof of his damages on the alleged breach of contract, the appellant testified that it would cost $200 to reseed the easement area; that it would cost $200 to remove the rock and debris left by the operation and he estimated the before and after value of his entire farm as a result of the destruction of his spring, the taking of the easement, and the offensive odors emanating from the sewage disposal plant at $100,000 before the taking and $55,000 after the taking.
Bale Killian, a real estate broker, relying on his general knowledge and experience in the sale of real estate, and basing his opinion on the area taken and offensive odors emanating from the sewage disposal plant, estimated the value of the entire track of land at $70,000 before the construction of the sewer line and disposal plant, and at $50,000 after the facilities were installed, lie testified that there was an offensive odor from the sewage disposal plant when he was on the property but that his knowledge as to odor prior to the construction of the plant in 1964, would be hearsay.
Candida Crane testified that she works for the appellant and lives about four miles west of the property involved. She testified that she had detected odors from the sewage disposal plant while she was on the appellant’s property mid that the odor was detected at her home four miles away. She testified that the odor was worse at some times than it was at other times.
King "Wheeler, a real estate dealer, testified that he had been familiar with the property since 1943. He testified that its highest and best use prior to 1964 ■would have been for a gentlemen’s estate or a boy’s camp, but since the construction of the sewage facility across the land, its best use would be for grazing. He placed the before and after value at $74,900 prior to 1964 and $51,-866 after the facilities were installed. He testified that the odor from the disposal plant had been apparent on appellant’s property since 1964, but not before that date.
M rs. Harry AVobb testified that she had carried mail to and by the appellant’s property for a number of years and that the odor from the sewage disposal plant had been noticeable during that period of time. She testified that it is possible that the odor may be less now than it was in 1958, but she doesn’t think so.
Clifford Houston testified that his farm adjoins the appellant’s farm and that he started noticing the odor from the sewage disposal in September or October of 1967. He testified that the odor was worse in these fall months. He had lived on his farm since 1948.
Mr. Dave Taylor testified that he was an inspector for the sewer and water department of Springdale and helped install the plant. He testified that prior to 1964 the sewage was partially treated at another location, and that the treatment was completed at the present location in older and smaller facilities. He testified that the partially treated sewage had higher odor producing content. than does the raw sewage now being treated.
L. M. Goodwin, a consulting engineer who designed the disposal plant, testified that when the new plant was first installed it produced considerable trouble from offensive odors, but that in 19G6 additional equipment was installed and that there had been no significant odor emanating from the plant since the fall of 1966. He testified that he had been in the vicinity of appellant’s property many times since 1966 and was unable to detect any significant odor from the plant.
Case}'- Forbes, superintendent of water works and sewers for the appellee, testified that a serious odor problem did develop in 1966, and that this problem had been eliminated by the installation of new odor eliminating equipment which has worked very satisfactorily. He testified that there is no significant odor in connection with the plant at the present time and that the plant does not emit an odor since the new equipment was installed in 1966.
O. J. Snow, a real estate broker and appraiser, testified that in his opinion the before value of the property was $75,750 and the after value was $75,000. He testified that he visited the plant and also the appellant’s property; that he detected some odor at the plant but none at all on the appellant’s property.
The jury not only saw the witnesses and heard them testify in this case, the jury went onto the premises and viewed the alleged damage. We may reasonably assume that the jury also sampled the air over appellant’s land for offensive odors. The preponderance and weight of evidence is for a jury to consider in reaching its verdict and is for the trial court to consider when the verdict is questioned as being against the preponderance of the evidence. When a circuit court judgment is questioned on direct appeal to this court, we examine the record for any substantial evidence to support the judgment, or the verdict upon which it is rendered, and we can do no more than that in determining whether the trial court abused its discretion in overruling a motion for a new trial on the ground that the verdict is against the preponderance of the evidence.
The alleged damages for breach of contract were apparently abandoned by the appellant in favor of the other damages he alleged. No jury instruction on breach of contract was given by the trial court nor requested by the appellant. The appellant relied most heavily on the difference in the market value of his land before and after the easement was taken and the present sewage disposal plant was constructed and placed in operation in .1964.
Aside from the approximate one-third acre in the easement actually taken, the appellant’s only other alleged damage to which the evidence was directed, pertained to reduction in the value of his land because of destruction of a spring on the property and air pollution over the property consisting of offensive odors from the appellee’s sewage disposal plant. The evidence on these two items was in substantial conflict. The conflict in the evidence as to the destruction of the spring ranged all the way from a clear year-round running spring which was covered and destroyed, as testified to by the appellant, to no spring at all, but a damp place in wet weather where a tree was pushed out of the ground and a tile pipe inserted, as testified to by Johnnie Jones. The evidence pertaining to air pollution ranged all the way fi^om constant and unbearable odor, as testified to by the appellant, to no odor at all as testified to by Messrs. Forbes and Snow.
There was substantial evidence to support the jury verdict in this case and we are unable to say that the trial court abused his discretion in refusing to grant the appellant’s motion for a new trial.
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Carleton Harris, Chief Justice.
Betty Jean Peck, appellant herein, and appellee, Dennis W. Peck, Jr., were married on April 30, 1946. Four children were born to this marriage, two presently being minors, Francis, age 16 years, and Thomas, age 15 years. On May 17, 1963, appellee obtained an absolute divorce from appellant in the Chancery Court of Saline County, appellant sighing a waiver and not appearing at the hearing. Under the terms of the decree, appellee was awarded custody of the minor children and title to all property acquired by the parties during their marriage, except for an automobile, which had been previously delivered to appellant. In September, 1963, the parties remarried, and lived together until September, 1968, at which time, Mrs. Peck instituted suit in the Saline Chancery Court for a divorce. The complaint alleged general indignities, systematically and continuously pursued, and also set out the ownership of certain property, including the home place, appellant contending that this property should be awarded to her for the use and benefit of the children, or in the alternative, that it be sold and the proceeds equally divided. She also sought' custody of the minor children'. ' Appellee filed a cross-complaint, also seeking an absolute divorce on grounds of general indignities, and the custody of the children, and denying all other allegations. On hearing, the. e.purt dismissed appellant’s complaint, granted appellee an absolute divorce upon his cross-complaint, decreed that appellant should have the automobile; vested title in the home place in appellee, subject to a mortgage indebtedness, which appellee was ordered to pay “and relieve plaintiff of any obligation to pay it;” directed that $800.00 be. paid to appellant at the rate of $50.00 per month; awarded the custody of Francis Peck to appellee, and gave custody of Tommy to Mrs. Peck, conditioned, however, that Tommy, presently at the Arkansas Children’s Colony, remain there so long as the Colony officials felt that he could be helped, and providing that, when Tommy was dismissed from the Colony, he should reside with his mother, and appellee should be responsible for his support. From the decree so entered, appellant brings this appeal. For reversal, it is first asserted that the court erred in awarding the divorce and custody-of the minor daughter to Dennis Peck, Jr., there being insufficient evidence to sustain the decree. It is then alleged that the court -erred in not awarding appellant the divorce, in not giving her custody of both children, and in failing to award her asserted interest in the property.
Mrs. Peck’s complaints were to the effect that if she were away from home, and arrived back a few minutes later than her husband thought she should, he would accuse her of being out with another man; that he would not go places with her; that he had struck her on several occasions, and would hold-her in bed until she would go into hysterics. Mrs. Peck was employed at Safeway. Her sister, aunt, and a fellow employee at Safeway, all testified in her behalf, but none observed any mistreatment by appellee.
Clyde Reaves said that appellee had told him that he had gotten angry with Mrs. Peck a few times, and had slapped her.
AVe think the preponderance of the testimony favors Air. Peck. The daughter, Francis, testified that she had heard her father and mother argue many times, hut she had not seen her father mistreat her mother. She said that she had never seen him strike her, and had observed no bruises or marks on appellant. Further, she said that her mother, on returning from a trip to Fort Bniith. told her (Francis) that she, while in Fort Smith, had gone out with other men: “She didn’t act like she was sorry about it. ’ ’ The daughter also stated that she had observed her mother kissing a neighbor, Alax Prickett. Francis testified that she desired to live with her fa ther.
Billy Peck, a son, who had been discharged from the Air Force, testified that his mother, after he had returned from service, told him that appellee had beaten her, but he was unable to observe any bruises. ' He said that his father had never struck his mother. ' Air: Peck testified that he had complained to his wife about the neighbor (previously mentioned), and also had made complaint about Reaves’ being around the house so much during his absence. He said there were instances when she had been away from home, and appellee would not tell him where she had been. Appellee denied striking Airs. Peck, though he said he had “held her.” According to his testimony, after the court had given temporary custody of the children to him, the wife had come to the house, and endeavored to find a gun' for the purpose of killing the members of the family. .
Eugene Hawley and Paul Ingles both testified that they had observed Reaves at the Peck home numerous times when Air. Peck was away at work.
- • Steve Taylor, 25 years of age and a resident of Little Rock) who formerly lived next door- to the Pecks, testified that on one occasion Mrs. Peck came to his mother’s home with her clothes and hair “messed up,” and had asked his'mother to tell Mr. Peck that appellant had been at the Taylor home (as an alibi), appellant not having been there. He also said that appellant had “made passes” at him.
We are unable to say that the Chancellor’s finding that appellee was entitled to a divorce was against the preponderance of the evidence, particularly when we consider the fact that he was in a position to observe all of the witnesses as they testified.
The record reflects that approximately one week prior to the first divorce between the parties, the house they were living in burned. Apparently, on the same day'(according to appellant’s complaint) that the divorce was granted, Mrs. Peck executed a quitclaim deed, relinquishing all of her claim to the property which the .parties had held as an estate by the entirety. The instrument was acknowledged before a Benton attorney. Thereafter, in August, 1963, according to the evidence, appellant and appellee received the sum of $10,500.00 from insurance which had been, carried on the home, and the two entered into a building contract with Capital Savings and Loan Association, wherein the closing statement re- fleets that Deimis Peck, Jr., and Betty Peck, as wife, paid $7,681.28 as a down payment on the home to be constructed, and executed a mortgage on the property in th« sum of $8,000.00. Mrs. Peck claims an equal interest in this property, stating that she was not aware of executing a deed conveying her interest. Her evidence on this point falls far short of establishing her contention. According to her testimony, appellant never ceased to live with appellee, though they were divorced from May, 1963, to September of the same year, and she asserted in her amended complaint that she signed the waiver, and agreed to a divorce in order to enable Mr. Peck to sue a union official (with whom she had an affair before the first divorce) for alienation of affection. Appellant said that the only instrument she had ever signed was the waiver, executed on April 18, 1963; however, on cross-examination, she admitted that the signature on the deed was her own, but stated: “I didn’t know I was signing a deed. ’ ’ But, when shown a copy of the divorce decree, and specifically a provision which recited that the court held that all properties acquired by the parties during; their married life, except an automobile, should be granted absolutely to Mr. Peck, Mrs. Peck admitted that this had been the arrangement. Prom the testimony:
“Q. So you understood that when that divorce was rendered that all the property was going to Mr.' Peck as well as custody of the children1?
“A. That was the agreement we made.”
Of course, though Mrs. Peck signed the mortgage as the wife of Mr. Peck, the parties were not married at the time, and appellee was_ the sole owner of the property. It may be that she signed in contemplation of the fact- that they would later remarry, but this is not established ■by the record. It is pointed out that Mr. Peck never did record- his deed, but this circumstance hardly supplies the necessary proof. The only facts established (from the testimony of appellant herself) are that she know that she lost all interest in the home property when the first divorce was granted, and that she had agreed to this 'arrangement.
Affirmed.
The sister said that an altercation between the parties took place in the bedroom., and her sister came out “just crying and tore up.”
Reaves testified: “I have been in the house many times'‘when Mr. Peck wasn’t at home having coffee with Mrs. Peck. I have asked Mr.. Peck many times if he objected. His answer would be. No, that he trusted me. I recall when Mr. Peck was ill last winter, I fed his hogs for him. I didn’t mind. I have done tractor work with Mr. Peck and on many occasions I have been doing a few minutes work out on the property. Yes, I have been on the Peck property many times.”
The first divorce decree does not appear in the record before us, and the exact date cannot be definitely determined. In an amendment to her complaint, Mrs. Peck states the divorce was granted on May 23,.1963.,. In her statement of .the case, she says that it was gi’anted on May 17, 1963. Appellee, in his statement of the case, says that they were divorced on May 22, 1963.
Mr. Peck denied that they had continued to live together, bul Mrs. Derrick, a iriend, supported appellant in this contention. | [
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Holt, J.
Appellee, Mrs. Flora Thomas, administra-trix of-the estate of Lee Thomas, deceased, begun this action in the Crawford circuit court against Guy A. Thompson, trustee in bankruptcy for the Missouri Pacific Railroad Company, a corporation, and R. E. Hen-dren and J. P. Brown, to recover damages for the injury and death of Lee Thomas, appellee’s husband. A trial was had and a jury returned a verdict in favor of defendants, Hendren and Brown, but against the trustee of the railroad company, in the sum of $2,000.
In her complaint, appellee alleges that defendants were negligent in the following manner: “That the defendant, Guy A. Thompson, trustee, his agents, servants, and employees and R. E. Hendren, engineer, and J. P. Brown, fireman, in charge and operating said train approached the scene of the accident at the great, unsafe and dangerous rate of speed of fifty miles per hour, ran down, injured and killed the deceased without sounding the bell, blowing the whistle or giving any warning whatever of the approach of the train. Plaintiff alleges that the defendants in operating said train neglected and failed to keep a proper lookout for persons and property on the railroad track and right-of-way, and that had a proper lookout been kept they could have seen deceased on or near the track in time to have stopped the train and prevented injuring and killing him.” She further alleged that the deceased at the time he was struck and killed was near the end of the cross ties forming defendant’s track and was there by the consent of the railroad company; and was upon an extensively traveled path used by the public generally.
The defendants filed a joint answer in which they denied' every material allegation set out in the complaint and in addition thereto set up the contributory negligence of appellee’s intestate and that he was a trespasser at the time of the accident, which resulted in his death.
Appellants in apt time filed their petition and bond for removal to the federal court. This petition was overruled by the trial court and removal denied, to which action appellants duly excepted.
The principal ground of error urged upon this court is that the plaintiff, under the law and evidence, failed to make out a case against the defendants and that the trial court erred in refusing to instruct a verdict on behalf of the defendants.
The material facts, as disclosed by this record, 'substantially are: Some time early in the afternoon of October 24, 1937, Lee Thomas, husband of appellee, according to appellee’s testimony, was seen walking on the railroad company’s right-of-way, about a quarter of a mile from Lee’s Creek bridge, traveling east toward Van Burén, in the direction in which the train that struck him was traveling, and at the time, according to appellee’s testimony, was either walking between the rails or on the ends of the ties. According to the testimony of engineer Hendren, who, it is conceded, was the only eye-witness to the fatal accident, the deceased Thomas was walking about four feet from the rail when he first discovered him and that he continued about this distance from the rail down the track with his back to the engineer,until the engine was within a few feet of him. when deceased suddenly stepped near the track and was hit and killed by the engine. The engineer further testified that he was keeping a lookout and first saw the deceased, Lee Thomas, when within 450 to 500 feet of him, and that he immediately began to blow his whistle, some ten or twelve times, to warn Thomas, but that Thomas paid no heed to his warning; that his train consisted of fifty-two cars, about half of which were empties, and was moving at a speed of about thirty-five miles per hour, at the time. The engineer, Hendren, testified that he could not have stopped the train, after he first discovered appellee’s intestate, before striking him; that he could not have stopped it under about 1,200 feet. There was some testimony on the part of appellee, however, that the train could have.been stopped within about 600 feet. There is testimony on the part of appellee that no whistle was blown and no warning signal given to deceased. The! record, also, reflects that appellee’s intestate might have been seen by the engineer, Hendren, for a distance of- one thousand feet or more had a lookout been kept and that a stiff wind was blowing in the deceased’s face, and toward the train, at the time. There is testimony on the part of appellant that the deceased met his death on the second or right-hand curve after the railroad track crosses Lee’s Creek bridge. The testimony on the part of appellee, however, is to the effect that deceased was struck and killed on the first or left-hand curve after crossing the bridge going east.
Although there is some testimony in this case of a pathway which was being used by the public generally at the point on appellant’s right-of-way where the deceased was killed, we are of the opinion that under all the facts as disclosed by this record, the deceased, Thomas, at the time he met his death was a trespasser, or at the most a bare licensee, and in accordance with a long line of decisions from this court, the only duty which the railroad company owed him at the time was not to willfully or wantonly injure him after discovering his perilous position, or if, by the. exercise of ordinary care, it could have dispovered him in such position in time to have avoided tlie injury. In tibe case of Baldwin v. Clark, 189 Ark. 1140, 76 S. W. 2d 967, this court, in stating the rule applicable here, said: “Under § 8569, where a trespasser is killed on the track, there is no presumption of negligence on the part of the railroad company, but the plaintiff must show a failure to keep a lookout, and show that if a proper lookout had been kept, the railroad' company could, by the exercise of reasonable care, have avoided the injury. ’ ’
We have reached the conclusion that, when we give to the evidence in this case its strongest probative force in favor of appellee as we must do, we cannot say as a matter of law, as is insisted by appellant, that a man walking not more than four feet from the rail, as engineer Hendren’s testimony shows the deceased to have been walking at the time he was struck and killed, was in a place of safety, and that no duty rested upon engineer Hendren, or the defendant railroad company, in the exercise of reasonable care, to warn the deceased Thomas of the train’s approach by blowing the whistle or ringing the bell.. We think under this record that it was a question for the jury to say whether or not the deceased walking not more than four feet from the rail, as appellant contends, was in a place of safety or one of peril.
In St. Louis-San Francisco Ry. Co. v. Williams, 180 Ark. 413, 21 S. W. 2d 611, the rule applicable, as to the duty which appellant owed appellee’s intestate, is very clearly stated as follows: “The only duty owing to her, as a trespasser under the common law, was to exercise ordinary care under the circumstances to avoid injuring her after discovering her presence on the track and consequent peril. But, by an act of the General Assembly approved May 26,1911, which appears as .§ 8569, Crawford and Moses’ Digest, it is made the duty of all persons running trains in this state to keep a constant lookout for persons and property upon the track, and .it is therein provided that, if any person or property shall be killed or injured by the failure to keep such lookout, the railroad company operating the train is made liable and responsible for all damages resulting from such neglect, notwithstanding the contributory negligence of the per son injured, where, if such lookout had been kept, the person charged with the duty of keeping it could have discovered the peril of the person injured in time to have prevented the injury, by the exercise of reasonable care after the discovery of such peril, and the burden is imposed upon the railroad to establish the fact that the duty to keep such lookout had been performed.”
Appellant very earnestly insists that since the engineer, Hendren, was the only eye-witness to the injury to appellee’s intestate, which resulted in his death, his evidence cannot be arbitrarily cast aside by the jury and, therefore, must be treated as undisputed and uncontra-dicted. This contention would be correct were it not for the fact that the engineer, Hendren, was a party defendant in this case, and remained so throughout the trial and until the verdict of a jury finding in his favor. This very question and contention was raised in the case of Kansas City Southern Ry. Co. v. Cockrell, 169 Ark. 698, 277 S. W. 7, wherein the facts are similar on-the principle involved, to the facts in this case. There the plaintiff sued the railroad company and its conductor, Roberts, and a jury found in favor of Roberts but against the railroad company, and there the rule was restated that the testimony of a party to an action interested in the result, cannot be regarded as undisputed in testing the legal sufficiency of the evidence. We quote from Chief Justice McCulloch’s opinion as follows: “The plaintiff failed, as against Roberts, to make out a case against him, the burden of proof being upon plaintiff to do so, but Roberts’ own testimony, though containing absolute denial of fault on his part, did not, as against appellant, constitute undisputed evidence of nonliability. His testimony afforded no affirmative evidence of negligence and added nothing to the plaintiff’s case against him or the appellant. It did not constitute undisputed evidence of non-liability, for he was a party to the suit, and the rule established by our court is that the testimony of a party to an action interested in the result cannot be regarded as undisputed in testing the legal sufficiency of the evidence. Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243.” We do not think it can be said, therefore, that the testimony of the engineer, Hen-dren, is ■undisputed or uncontradicted.
It was finally contended by appellant that the trial court erred in overruling- and denying its petition and bond for removal of the case to the federal court. We do not think any error was committed in this regard. We think the case of Kansas City Southern Ry. Co. v. Cockrell, supra, and Chicago, Rock Island & Pacific Ry. Co. v. McKamy, 180 Ark. 1095, 25 S. W. 2d 5, are against appellant’s contention and control here. See, also, the well considered case of Missouri Pacific Railroad Co. v. Miller, 184 Ark. 61, 41 S. W. 2d 971, where this question was very extensively discussed by Mr. Justice Butler and is against appellant’s contention here.
No complaint is made on the amount of the judgment, and, no errors appearing, we concluded that the judgment should be affirmed, and it is so ordered. | [
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David Newbern, Judge.
In this workers’ compensation case, the Workers’ Compensation Commission denied compensation for the claimed temporary total disability on the basis the claimant had failed to produce substantial evidence of his disability. Over the objection of the appellees, the commission permitted the appellant to recover costs of consultation with a chiropractor from whom he has recently begun to receive treatment. The appellees cross-appeal, contending these costs should be denied the claimant. We affirm the commission’s decision.
The appellant was injured January 12, 1977, suffering a strained or sprained back while working for the appellee Arkansas Oak Flooring Co. He returned to work for the appellee January 17, 1977, and worked there until February 7, 1977, when he was discharged because of a dispute over his time card. He has held two jobs since he left the employ of the appellee. His claim is that pain from the injury was a reason for his losing at least one job. He claims temporary total disability for the following periods: February 7, 1977, through February 25, 1977; June 6, 1977, to June 26, 1977; and August 1, 1978 to the present. The commission concluded these dates were more representative of “time off between jobs . . . than recurring disability.”
The appellant’s first contention on appeal is that the commission made a “finding” that the report of a physician, Dr. Wilkins, who treated the appellant, was not in the record. Although there was some confusing language in the “conclusions” section of the commission’s decision, it is clear the commission had before it a report by Dr. Wilkins who treated the claimant, apparently at the instance of the appellees, at the time of the injury. The commission’s decision was, in fact, básed on the failure of the appellant, with one exception, to seek treatment.for the allegedly painful condition he contends to have been the cause of his disability during the one and one half years between Dr. Wilkins’ examination and one by a Dr. Bierman, who is a chiropractor. Thus, as the commission bases its decision, in part, upon a date established by Dr. Wilkins’ examination, and makes reference to Dr. Wilkins’ report in its “statement of the case,” we cannot say there was a finding the report was not before the commission. The confusion evident in the commission’s opinion is at most harmless error.
The second point raised by the appellant is that his claim should have been allowed because he proved his case. We affirm the commission if there is substantial evidence to support its action. Ryan v. NAPA, 266 Ark. 802, 586 S.W. 2d 6 (Ark. App. 1979). In cases in which the commission has denied a claim because of a failure to show entitlement by a preponderance of the evidence, this standard can be translated as follows: we will affirm if the commission’s opinion displays a substantial basis for the denial of relief.
Here, the basis of the denial was that, despite his allegations of pain causing disability, the claimant admittedly saw only one physician between January 12, 1977, and August 28, 1978, the date he consulted Dr. Bierman. The one physician he saw in addition to Dr. Wilkins was an orthopedist, Dr. Logue, who found some “strain and sprain” but made no statement with respect to disability. Neither Dr. Wilkins nor Dr. Bierman, the chiropractor, stated any finding of disability. There was a substantial basis for the commission to deny the claim.
The appellee’s cross-appeal urges the appellee be found not responsible for payment for the treatments by Dr. Bier-man. Dr. Bierman has proposed a plan of treatment for the appellant which the appellant apparently wishes to pursue. The ground urged by the appellee (cross-appellant) is the appellant’s failure to comply with Workers’ Compensation Commission Rule 21. That rule provides:
The employer and/or insurance carrier has the right and duty in the first instance to provide prompt medical care to injuried employees through physicians and hos pitáis of the respondents’ choice. A claimant, subsequently, may obtain a change in treating physicians to a physician of the claimant’s choice, the costs of such treatment to be borne by the employer or the employer’s insurance carrier, provided (1) the claimant’s healing period shall not have ended; (2) the claimant is not seeking to change physicians from one of his own choice, previously selected by the claimant; (3) the physician to whom the claimant wishes to change is qualified in the particular field of medicine needed for claimant’s particular difficulties; (4) the claimant files with the Commission a petition for a change in physicians, gives the name of the physician to whom he wishes to change and asserts that the physician to whom he wishes to change is competent to treat his particular ailment; (5) rio unresolved issue exists over whether claimant is legally entitled to medical care at the expense of respondents.
We find no fault with the commission’s determination. We assume the commission was aware of and operating pursuant to its own rule. It apparently found all the conditions permitting a change of doctors. We may regard their determination as satisfying the requirement of subsection (4) of Rule 21 to the effect that the permission of the commission must be obtained. We note the commission made no order that the appellee pay the bill for Dr. Logue’s examination, and thus the disqualification of Rule 21 (2) should not apply. That subsection should apply only when the insurer or employer is paying a physician selected by the claimant who then seeks to change to another physician of his choice. Although there is some qustion whether a chiropractor qualifies as a “physician’ ’ under the Rule, that point has not been argued.
Affirmed.
Judges Howard and Penix did not participate. | [
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Conley Byrd, Justice.
Following appellee, Bernard J. Berg, Jr. ’s forfeiture of a cash appearance bond in connection with a driving while intoxicated charge, appellant’s predecessor, Chief of the Driver Control Section, Arkansas Department of Finance and Administration, Revenue Division, notified appellee that his driver’s license was being revoked for a period of three months pursuant to Ark. Stat. Ann. § 75-1029.4 (Supp. 1977), which provides:
“In addition to the fines and penalties as now provided by law under the provisions of Section 3 [§ 75-1029] of Act 208 of 1953, m amended, for persons convicted of driving or [being] in actual physical control of a motor vehicle while under the influence ©f intoxicating liquor or drugs, additional sanctions shall be applied as hereinafter provided.
1. (a) When a person has been convicted for driving, or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs, and such person has not been convicted of such offense for a period of three (3) years prior to the date of arrest on the charge which led to said conviction, such conviction shall constitute a first offense and the driving privilege of such person shall be suspended for not less than ninety (90) days. The court in which the conviction for first offense of operating or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs occurs may recommend that a restricted license be issued for the purpose of maintaining a livelihood or other dire needs of the licensee as may be determined by a Driver’s License Hearing Officer. The determination that restricted driving privileges are to be granted shall occur at an administrative hearing to be conducted by a Driver’s License Hearing Officer under provisions of existing statutory requirements for such hearings. The Hearing Officer conducting such hearing shall consider the total driving record of the person convicted for first offense of driving under the influence of intoxicating liquor or drugs for the purpose of deciding if a restricted permit should be issued, and to determine the restrictions to be placed on such person’s driving privilege in the State of Arkansas.”
On petition of appellee, the trial court enjoined the action of appellant on the basis that the statute, supra, did not authorize appellant to revoke appellee’s license— i.e. the revocation of the license was a duty imposed upon the courts of this State. We agree with the trial court.
Affirmed.
We agree. Harris, C.J., Holt and Purtle, JJ. | [
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John I. Purtle, Justice.
The Lee County Chancery Court awarded appellant the proceeds of three certificates of deposit issued by appellee. However, the decree denied prejudgment interest on the proceeds. Ownership of the funds was not in dispute in this matter. The only argument in this appeal is whether the court erred in rejecting appellant’s claim for prejudgment interest. The facts were before us in the prior decision which is reported in Lovell v. Marianna Federal Savings & Loan Association, 264 Ark. 99, 568 S.W. 2d 38 (1978).
Appellant survived as joint payee of the certificates of deposit in the original amount of $36,000. November 13, 1973, he made demand upon appellee for proceeds of the certificates, which had been purchased by his father. Because of doubt as to ownership, appellee filed a declaratory action and paid the funds into the registry of the court. At the first trial it was decided the widow of decedent was the owner of the disputed funds. We reversed the trial court and returned it for judgment in favor of appellant. The trial court entered a decree in which appellant was declared to be the owner of the funds but denied interest prior to the decree. Appellee paid the proceeds to appellant without prejudice to his claim for interest pending this appeal. We agree with appellant that prejudgment interest should be allowed under the facts and circumstances of this case.
The case is argued very ably by both parties to this appeal. Several Arkansas cases are correctly cited by the parties m support of their arguments. Likewise, the trial court quoted from our cases in support of the decree. We cannot say either the court or counsel misunderstand or misquote the law or cases. We must admit the error of the cases on this subject. They are simply irreconcilable and we must decide which rule to follow in this case and in the future.
In very early cases, such as Crow v. State, 23 Ark. 684 (1861); Kelly v. McDonald, 39 Ark. 387 (1882); and St. Louis I.M. & S. Ry. v. Biggs, 50 Ark. 169, 6 S.W. 724 (1887), we held to the rule that if the damaged or destroyed property had a market value, or other definite standards of determining the value, at the time of loss, damage or destruction, prejudgment interest was allowable. Thus, if marketable property were damaged or destroyed the measure of damages was its value at the time of the loss plus damages in the nature of interest. It does not appear that recovery of interest prior to judgment is dependent upon whether the claim is liquidated or whether it sounds in tort or contract. The test in prejudgment interest cases is whether there is a method of determination of the value of the property at the time of the injury. If such method exists, prejudgment interest should be allowed. Although such damages were usually referred to as damages in the nature of interest, it does not change the fact that such damages were measured by the legal rate of interest allowed by law at the time. Therefore, it may as well be called interest.
The reason for allowing interest in such cases is to compensate the plaintiff for the loss. The time of the loss is used to determine the value of the property. When there has been a delay in compensating the injured party, he has an additional loss for the period of time for which he has been deprived of the use of the property. During this period of time between the loss and the recovery, the defendant has had the use of plaintiffs recovery. Therefore, the defendant should pay the plaintiff for such additional loss, and the most logical measurement of the additional loss is the rate of interest which is currently in use by those lending money.
It is equally true that in cases where the damages cannot be ascertained at the time of the loss interest before judgment should not be allowed. Damages for personal injuries are not capable of being determined at the time of the injury. In most personal injury claims the amount of money damages cannot be measured until some future date. Therefore, there is no method of measuring the damages at the time of the loss; neither is there a vested property right such as exists in cases where property is damaged. When recovery is had in personal injury cases it is for all damages which the plaintiff has suffered at the time of the recovery. Frequently, such recovery is for damages to occur in the future. 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.
Somewhere along the way a line of cases appeared holding that prejudgment interest was not allowed in tort actions. The first such case brought to our attention is Southern Farm Bureau Cas. Ins. Co. v. Hardin, 233 Ark. 1011, 351 S.W. 2d 158 (1961). This case was followed as late as Members Mutual Insurance Co. v. Blissett, 254 Ark. 211, 492 S.W. 2d 429 (1973). However, in Dickerson Construction Co., Inc. v. Dozier, 266 Ark. 345, 584 S.W. 2d 36 (1979), we returned to the former rule which allowed prejudgment interest, at least when applied to growing crops. This was a tort action as were the Hardin and Blissett cases. We believe the Dozier case follows the most logical rule. This rule was followed in Kennedy v. Clayton, 216 Ark. 851, 227 S.W. 2d 934 (1950), wherein we quoted with approval from Richards v. Citizens N. G. Co., 135 Pa. 37, 18 Ark. 600, as follows:
. . . “Interest cannot be recovered in actions of tort or in actions of any kind where the damages are not in their nature capable of exact computation, both as to time and amount. In such cases the party chargeable cannot pay or make tender until both the time and the amount have been ascertained, and this default is not therefore of that absolute nature that necessarily involves interest for the delay. But there are cases sounding in tort and cases of unliquidated damages where not only the principle on which the recovery is to be had is compensation, but where also the compensation can be measured by market value or other definite standards. Such are cases of the unintentional conversion or destruction of property, etc. Into these cases the element of time may enter as an important factor and the plaintiff will not be fully compensated unless he receive, not only the value of the property, but receive it, as nearly as may be, as of the date of his loss. Hence it is that the jury may allow additional damages in the nature of interest for the lapse of time. It is never interest as such, nor as a matter of right, but compensation for the delay, of which the rate of interest affords the fair legal measure.”
In the present case the certificates of deposit had an exact value on the date appellee refused to pay them over to appellant. He has been wrongfully deprived of the use of these funds since November 13, 1973. These funds had an exact determinable value, both as to time and amount, when appellant was deprived of the use of them. Therefore, he is entitled to the proceeds of the certificates of deposit together with interest from the date of such loss of use, at the rate of 6% per annum, as required by art. 19 § 13, Const, of Ark., until he receives payment.
This case is therefore reversed and remanded to the trial court with directions to proceed consistent with this opinion.
Reversed and remanded.
Harris, C.J., not participating. | [
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PER CURIAM
The claimant has appealed from a decision of the Board of Review affirming the Appeal Tribunal of the Arkansas Employment Security Division which held that the claimant was ineligible for benefits under Section 5(a) of the Arkansas Security Law until she had thirty days of covered employment. The determination of the Appeal Tribunal was that the claimant voluntarily left her employment without good cause connected with the work.
The claimant had been employed at Dee Dee’s Restaurant (now Donavan’s Inn) and recently had become manager. In this position she had hired two employees. The restaurant was then acquired, unexpectedly it appears, by Mr. Ivan Rodenz.
On July 6, 1979, the claimant’s employment terminated and she filed for unemployment benefits, giving as the reason for separation: “Laid off, lack of work.” The response of the employer was that claimant “asked to be the first one laid off.”
The claimant testified that, under the impression that the staff was to be reduced, she told Mr. Rodenz that if he needed to lay someone off, she hoped it would be her as she hated to see. the two employees laid off whom she had so recently hired.
The employer testified that it was necessary to lay off “quite a few” and in answer to whether he would have retained the claimant had she not made the statement, he answered, “It is hard to say because it would have caused a little friction having them as managers for two days and then being replaced by somebody else, it would have been dif ficult for her to really put forth complete effort for me.”
On this testimony the Appeal Tribunal determined that claimant had voluntarily left her employment, stating that the Tribunal has consistently held that where a worker notifies his company that he wants to be. laid off, he has, in effect, brought about his own separation.
We see an appreciable difference in an employee communicating directly to an employer that he wishes to be laid off and what occurred in this case.
Here the employee simply expressed the preference that if anyone was laid off, she hoped it would be her. This is hardly the same as a direct request to be laid off. Furthermore, in this claim it is admitted that a reduction in staff of at least three employees was necessitated at the decision of the employer. The fact that the claimant preferred to be one of them rather than those she had hired does not alter the underlying fact that her employment ended by reason of work reduction and not, as the Appeal Tribunal stated, for personal reasons.
Reversed with directions to enter the appropriate order awarding unemployment compensation to claimant as she may b¿ eligible. | [
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John A. Fogleman, Justice.
Appellant Gerald D. Barnes filed a suit against Elmer T. Pearson, appellee herein, on December 13, 1976, seeking to recover one-half of the assets of Pearson Termite & Pest Control, Inc. and an accounting for profits subsequent to February, 1976. The corporation was formed on October 28, 1974, and Barnes and Pearson were the sole stockholders, each owning one-half of the capital stock of the corporation. Barnes alleged that Pearson had operated the business, without any accounting to Barnes, since February, 1976, when Barnes had become disabled, and that Pearson had converted the assets of the corporation to his own use under a new name. Pearson filed a general denial in answer to the original complaint, except that he admitted that the two parties were the sole stockholders of the corporation. By an amendment to the complaint, Barnes asked that Pearson be declared trustee of all funds earned by Pearson Termite & Pest Control, Inc. since October 1, 1976, and alleged that an accounting for, and division of, such funds should have been made. In his answer to the amendment to the complaint, Pearson alleged that Barnes had received funds for franchise sales for which he should be required to account and claimed the right to set off one-half of these receipts against any amount due Barnes.
On June 1, 1977, a decree was entered upon agreement by the parties. The decree contained the following findings: that Barnes and Pearson were each entitled to one-half of the corporation assets; that injunctive relief should be provided so that each could operate his respective business after division; that the corporate name and structure should become the property of appellant; that Pearson should pay appellant $1,700; that the physical assets of the corporation should be divided between the parties, that all accounts should be divided equally, but, if the parties were unable to agree upon a division, a commissioner would be appointed; that each party might maintain his franchise agents; and that each party would be enjoined from serving the accounts belonging to the other. On June 22, 1977, Pearson filed a notice of appeal from this decree, but the appeal was never perfected.
On June 28, 1977, Barnes filed a petition alleging that Pearson had violated the terms of the decree and asking that Pearson be held in contempt of court and that steps be taken to protect the rights of Barnes. After Pearson filed a motion to require Barnes to make his pleading more definite arid certain as to matters alleged to be in violation of the decree, Barnes filed an amendment to his petition. In that pleading, he alleged that Pearson had failed to divide the assets of the corporation with him, had failed to bring the books and documents belonging to the corporation to him, had failed to pay the judgment for $1,700, was continuing to use the corporate telephone and telephone number and was contacting customers and accounts that were being serviced by Barnes. Pearson answered, denying these allegations.
Thereafter, on August 5, 1977, Barnes filed another petition alleging that Pearson had failed to comply with the decree of June 1, 1977, which ordered Pearson to divide the assets of the corporation with Barnes and that there were items of personal property in Pearson’s custody and possession that should be sold at public auction and the proceeds divided equally between Barnes and Pearson. Then, on December 20, 1977, Barnes filed another petition, alleging that the cancelled checks and bank statement for May, 1977, on an account in the name of “Elmer Pearson Special Account NO. 11-788-57,” which had been furnished pursuant to an order of the chancery court upon appellant’s motion, showed a balance of more than $18,000 when the case was tried in June, and that this balance was greater than the amount represented as the balance by Pearson at the trial in June, 1977.
No testimony except that of Barnes and Pearson at the original trial is included in the transcript. Barnes testified that when he commenced working for the corporation in December, 1974, it was servicing 320 accounts and, in addition, had franchise dealers who used the corporate name, license and insurance, and received 20 percent of the gross income on the accounts serviced by them. He also testified that when he had to quit working, on doctor’s orders, in February, 1976, because of a back problem, the parties agreed that they would divide the profits as of June, 1976, and that the profits thereafter would be put back into the corporation for Pearson to use as he saw fit, but that Barnes was to get the income from one-half of the franchise dealers. According to Barnes, he learned in November, 1976, that Pearson had started operating the business under a new name (Pearson Pest Control), and that Pearson had changed the bank account so it was carried under the title, “Elmer Pearson Special,” without authorization from the board of directors. Barnes said that he could not tell anything about the financial picture of the corporation from the documents furnished by Pearson, and that, since November, 1976, Pearson had chosen the franchise checks he wanted to keep and had sent Barnes the ones that he wanted Barnes to have. Barnes stated that the value of a pest control business is determined by multiplying its annual income by a multiplier ranging from six to ten, depending upon the reputation of the company. He said that the value of this corporation was 130,000. Barnes testified that he never intended to give his half of the corporation to Pearson.
Pearson confirmed the agreement on division of the income from the franchise dealers made when Barnes became incapacitáted. He said that there was no money in the corporation’s bank account and that, when the company’s accountant said that Barnes and Pearson were each entitled to $852, Barnes refused to accept that as his share of the corporation. ' Pearson testified that he had formed a new company named “Pearson Pest Control,” had obtained a new license in October, 1976, and had, since that time, operated his pest control business under this name and license. He said that Barnes had to know that he was going to operate under a new name because he had told Barnes that if he didn’t buy Barnes out, he was going to pull out of the corporation. Pearson recalled, upon cross-examination, that on March 15, 1977, he had testified in a deposition that there had been a balance of $6,124.23 in the Pearson Termite & Pest Control account, which was, at the time of the trial, in the “new” bank account. In his testimony at the trial, Pearson denied that this amount had been in the account at that time.
We have great difficulty in following Pearson’s testimony about this account. He denied having transferred a balance of $6,124.23. The following question was asked and response given on cross-examination:
Q. Well, I asked you on March 15th if there was any money in the account when you pulled out and took all of the accounts with you on October 28th, 1976 and you said, “Yes, there is. It is $6,124.23 is what I got.”
A. We took that off the check book cause I can’t remember.
Pearson then testified that he wrote the last check on the corporate account on January 27, 1977 and that there was $6,-124.43 in that account when he “pulled out of the corporation.” Thereafter, the cross-examination went as follows:
Q. When did you close that account?
A. When I cashed — Just a minute. I cashed it out when I closed this check that you had here. I had to put some money in there even to make enough to do it.
The Court: I don’t understand what you are saying sir?
Mr. Branscum [Appellant’s attorney]: I don’t understand either.
The Court: Did you write a check for $6,124.43?
Mr. Pearson: No.
The Court: What are you saying, Mr. Pearson; you’ve lost me ever since you’ve been up here?
Mr. Pearson: When I pulled — before I pulled out when I went over there and tried to buy him out, I started a new account.
The Court: At that time there was $6,124.43 in the old account?
Mr. Pearson: No, Sir.
The Court: What was there in the corporation account, Mr. Pearson? Gentlemen, I’m serious, I have never seen a situation of trying to look at the financial structure of the corporation. We’ve had the accountant and we don’t have the balance sheet or the profit and loss statement. These are absolutely necessary to make any determination of the structure of the corporation.
Mr. Cambiano [Appellee’s attorney]: The accountant has testified as to the assets of the corporation.
The Court: Without the benefit of the balance sheet or the profit and loss statement.
Mr. Cambiano: But he had the material that these came from.
The Court: I have examined these, Mr. Cambiano. I can’t tell what checks these were written on after he completed his testimony, I could not know. He said it was on Pearson Pest Control. I thought we were dealing with Pearson Pest Control, Inc. I have not seen anything on the corporation. And sometime gentlemen, somebody is going to have to furnish me some information before I can make any kind of determination. I’m not trying to be facetious about this.
Pearson then testified that the accounts were “put together,” without his consulting anyone, that he made an offer which Barnes would not accept, so he “pulled out,” as he told Barnes he would, and took the money and started paying bills. This exchange took place between the chancellor and Pearson:
The Court: You put the income in one account and paid the expenses out of the other?
Mr. Pearson: Well, it was all mine anyway.
The Court: No, it wasn’t sir. I think that is what the problem is.
Mr. Pearson: Okay, it wasn’t mine then.
A hearing on the petitions filed by Barnes following the original decree was held on June 1,1978. The chancellor then ruled that Barnes was not entitled to offer evidence about the financial activities of the business from the time Pearson commenced his Own business until the matter was initially determined on June 1, 1977. The chancellor stated that, on the record before him on that date, he had held that the corporation had, for all practical purposes, been terminated on November 1, 1976.
Barnes then preferred the testimony of Robert Hill, a certified public accountant, who had made an investigation of the accounts of Pearson Termite & Pest Control, Inc., Pearson Pest Control and Elmer Pearson Special Account. He said that on November, 1, 1976, there had been $6,123.93 in the Elmer Pearson Special Account, which had been opened on September 28, 1976 with $6,123.50. He found approximately $100 in the account of Pearson Termite & Pest Control, Inc., on December 1, 1976. He said that on June 1, 1977, there was $18,581.77 on deposit in the Elmer Pearson Special Account, which came from business deposits, and that there had been checks written on that account for $8,100 for capital expenditures and $1,400 for personal expenditures. He found documents previously presented by Pearson’s accountant of little help in arriving at the financial structure of the business. According to Hill, after taking into consideration operating costs, each stockholder would have been entitled to approximately $13,300 on June 1, 1977, based on the figures he had previously stated.
On August 2, 1978, the chancery court entered an order finding that Barnes was not entitled to submit proof about the earnings of Pearson Termite & Pest Control, Inc. since November 1, 1976, and that the court’s order of June 1,1977, dissolving the corporation and dividing its profits as of November 1, 1976, should not be altered. Based upon these findings, the court ordered that appellant’s petition seeking a division of profits from November 1, 1976, to June 1, 1977, be dismissed.
Appellant first contends that the chancellor erred in failing to hold appellee in contempt for failing to comply with the court’s orders. We have considerable difficulty in treating this point. Appellee says that a hearing on the petition to cite him for contempt was held on August 3, 1978, and that the chancery court declined to take action on this petition. There is no abstract of any such hearing or any order touching on this matter. In any event, it was appellant’s responsibility to obtain a ruling on this petition and if there was action adverse to him to bring up the record on the hearing, including the court’s order. Arkansas State Hwy. Com’n. v. Stupenti, 222 Ark. 9, 257 S.W. 2d 37. In the absence of any order of the court, we are really not in a position to pass on the question. Brown v. Patterson Construction Co., 235 Ark. 433, 361 S.W. 2d 14; Burns v. Local Trademarks, Inc., 222 Ark. 855, 263 S.W. 2d 483; North River Ins. Co. of N.Y. v. Thompson, 190 Ark. 843, 81 S.W. 2d 19.
It was the responsibility of appellant to obtain a ruling by the chancery court ©a Sufe petition. North River Ins. Co. of N.Y. v. Thompson, supra; Akins v. Pierce, 263 Ark. 15, 563 S.W.2d 406. If the chancery court refused to act on the petition, appellant could have applied to this court for mandamus to the'trial court to d© so. State v. Nelson, 246 Ark. 210, 438 S.W. 2d 33; McCreary v. Rogers, 35 Ark. 298. See also, Wyatt v. Magee, 3 Ala. 94. The burden also rested upon appellant, on appeal, to demonstrate error on the part of the trial court. Holt v. Holt, 253 Ark. 456, 486 S.W. 2d 688. Refusal of a trial court to punish an alleged contemnor will be reviewed by an appellate court only to determine whether there has been an abuse of discretion. State Grand Lodge of Pennsylvania v. Morrison, 277 Pa. 41, 120 A. 769 (1923); In re Ensslen’s Estate, 163 Pa. Super. 246, 60 A. 2d 429 (1948); Engleman v. Engleman, 145 Colo. 299, 358 P. 2d 864 (1961); Haynes v. Haynes, 168 Kan. 219, 212 P. 2d 312 (1949); In re Sobol, 242 F. 487 (2 Cir., 1917); Yancey v. Mills, 210 Ga. 684, 82 S.E. 2d 505 (1954). On the record before us, we are unable to say that the trial court erred in this respect or abused its discretion on the matter of contempt.
Appellant also argues that the chancellor erred in denying appellant’s request to require an accounting and division of the funds derived from the assets and customers of the corporation for the period from November 1, 1976 to June 1, 1977. He says that the corporation was dissolved by the decree of June 1, 1977, and, therefore, the assets of the corporation on that date should have been divided equally between appellant and appellee as of that date, but that the chancellor orally stated that the division of assets should have been made as of November 1, 1976.
We have some difficulty in dealing with this point. Appellant’s original complaint was filed on December 13, 1976. Trial was had on April 28, 1977. The chancellor stated that he had found, when the decree was entered on June 1, 1977, that Pearson Termite & Pest Control, Inc. had ceased to exist on November 1, 1976, but the decree does not contain a specific recitation of this finding. The decree entered June 1, 1977, provided that the corporate structure should become the property of Barnes, that Pearson should pay Barnes $!,- 700, and that the accounts should be divided equally. As we understand the decree, the accounts that were to be divided were simply those of the customers of the business, which included payments subsequently made by these customers for services already rendered and amounts to be paid for subsequent services. No appeal was taken by appellant from that decree. The time for giving notice of appeal expired July Í, 1977. There was no pleading of any kind filed by appellant within the 30 days allowed for appeal except for the petition that Pearson be held in contempt of court. That petition stated conclusions only and did not specify the respects in which Pearson had violated the decree.
Appellant has not attempted to proceed under Ark. Stat. Ann. § 29-506 et seq. Even if appellant’s pleading be taken as a complaint in compliance with Ark. Stat. Ann. § 29-508, it does not contain allegations which would have justified the setting aside of the decree of June 1, 1977. Appellant actually sought to vary the terms of the original decree upon the basis of false or fraudulent testimony, the truth of which might have been an issue before the court which resulted in the decree. This is not sufficient basis for setting aside the original decree under these statutes. Makin v. Makin, 244 Ark. 310, 424 S.W. 2d 875; Hardin v Hardin, 237 Ark. 237, 372 S.W. 2d 260; Pattillo v. Toler, 210 Ark. 231, 196 S.W. 2d 224; Hendrickson v. Farmers’ Bank & Trust Co., 189 Ark. 423, 73 S.W. 2d 725; Parker v. Sims, 185 Ark. 1111, 51 S.W. 2d 517.
Nothing that could be considered as a bill of review was filed prior to December 20, 1977. The principal basis of that pleading was the contention that there was a balance of $18,-000 in the corporate bank account and that this was an amount much greater than Pearson had said was present in the account when the case was tried on June 1, 1977. Appellant’s petitions, except those relating to the contempt proceedings, are in the nature of a bill of review.
A bill of review is a bill or complaint filed after the lapse of the term seeking to reverse or modify a decree that has been entered. Smith v. Rucker, 95 Ark. 517, 129 S.W. 1079, 30 LRA (n.s.) 1030. A bill of review in an equity court in this state lies only for error apparent on the face of the record or for newly discovered evidence. Cornish v. Keesee, 21 Ark. 528; Smith v. Rucker, supra; Evans v. Parrott, 26 Ark. 600. It does not lie to enlarge or modify a decree rendered by consent. Cornish v. Keesee, supra. False testimony is not a sufficient basis to justify a bill of review. Tri-County Hwy. Improvement Dist. v. Vincennes Bridge Co., 170 Ark. 22, 278 S.W. 627.
As a bill of review, appellant’s petition, having been filed more than 90 days after the original decree was entered, and after the time for appeal had expired, could be considered only for newly discovered evidence. Pyles v. Holland, 187 Ark. 550, 60 S.W. 2d 1029. Such a bill serves the same purpose as a petition for a rehearing in chancery or a motion for new trial at law. Richardson v. Sallee, 207 Ark. 915, 183 S.W. 2d 508. The granting or refusal of such a bill lies within the sound discretion of the chancellor, and is subject to review on appeal only for abuse of discretion. Smith v. Rucker, supra; Richardson v. Sallee, supra. Before a bill for review will lie on the ground of newly discovered evidence, the matter must be such as was not known to the petitioner or could not have been discovered by reasonable diligence, and must be sufficient to change the result of the original trial Smith v. Rucker, supra; Richardson v. Sallee, supra; Dent v. Adkisson, supra; TriCounty Hwy. Improvement Dist. v. Vincennes Bridge Co., supra; Killion v. Killion, 98 Ark. 15, 135 S.W. 452. Before allowing a petition to rehear or a bill of review to be filed, a court ought to be satisfied that the evidence relied on is new and could not, by ordinary diligence, have been discovered prior to the date of the decree complained of. Stone v. Sewer Improvement Dist. No. 1, 107 Ark. 405, 155 S.W. 99.
The chancellor may have sustained appellee’s plea of res judicata. We are not favored with the complete record on which the court’s decree of June 1, 1977 was entered. The terms of the agreement between the parties for dissolution of the corporation and division of its assets are not shown except for the statement in the decree that it embodies the agreement. The only specific statements as to division of assets in the original decree relate to physical assets and customer accounts. In any event, appellant has failed to demonstrate error or abuse of discretion in the chancery court’s holding on his post-decretal petition.
The decree is affirmed.
We agree. Harris, C.J., George Rose Smith and Hickman, JJ.
Under the present statutes, the bill would be one filed more than 90 days after the decree was rendered. Ark. Stat. Ann. § 22-406.3 (Supp. 1977). | [
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John A. Fogleman, Justice.
The widow of Harold Wilson, a staff representative of United Auto Workers International Union at the time of his death, asks us to reverse a judgment affirming the denial of death benefits by the Workmen’s Compensation Commission. The commission found that Wilson’s death on August 22, 1967, did not arise out of and during the course of his employment. As a point for reversal, appellant argues that the death of Wilson did so arise and that there is no substantial evidence to the contrary. As we understand the brief and argument on behalf of appellant, she contends that the evidence shows that Wilson’s death arose out of and in the course of his employment as a matter of law. We do not agree.
The material testimony was as follows:
Wilson, a representative of United Automobile Workers, lived in North Little Rock. He worked under the supervision of the Little Rock office of the UAW, and his supervisor was Herbert Bingaman, Area Director. He had been going to Pocahontas off and on over a three-montli period, during which he also spent some time in his business activities in Forrest City and Marianna. He went to Pocahontas on Monday, August 21, on the organizing mission that he had been conducting there. He was due to return to Little Rock on the following Saturday. He met a fellow organizer, Donald W. Slavens, at the Hillcrest Motel in Pocahontas where Wilson registered and obtained an air-conditioned room for the period of his stay there. Wilson was in charge of the campaign. He arrived at the motel about two o’clock and called on Slavens. The two discussed the program briefly and then went to the Shoe Workers’ Hall to discuss plans. There they met with a committee around 2:00 p.m. and continued their discussion of plans until about 8:00 p.m. These parties separated for the evening meal, but later Wilson and Slavens met with two of the officers from the Shoe Workers’ Lodge who were to help with the campaign. Wilson had his organizing-material, files and papers in his room at the motel, along with the pamphlets and handbills and material normally used in this sort of campaign. The group was still engaged in this conference when Slavens asked to be excused about a quarter of eleven. Slavens and Wilson met between 7:30 and 8:00 a.m. on the following day and had breakfast together, after which they picked up material at the motel and went to the Shoe Workers’ Hall, each in liis own automobile. There they prepared the hall for a meeting1 scheduled at 2:00 p.m. These preparations consisted of sweeping, moving tables and chairs, obtaining and icing soft drinks, and arranging for attendance prizes. They left the hall around 11:15, each going his separate way. "Wilson advised Slavens that he made a practice of not eating lunch at noon. Slavens ate lunch and returned to the hall about 1:00 p.m. and availed Wilson’s arrival. Before the time scheduled Tor the meeting, Slavens was advised by an undertaker, who was also county coroner, that Wilson had suffered an accident. Slavens immediately went to the motel. He learned that Wilson had been found in the swimming pool at the motel clad in swimming trunks and had been taken to the funeral parlor. The coroner, the chief of police and a doctor examined Wilson’s body in Slavens’ presence. The only signs of injuries were bruises about Wilson's face and forehead. Slavens was advised that these were caused by attempted artificial respiration at the swimming pool.
Slavens stated that, as he recalled, the temperature was a moderate 82 or 85 and that the day was not a particularly humid one. The testimony indicates that Wilson was in good health. The only evidence of the cause of his death -was the certificate made by the coroner who stated that Wilson apparently drowned accidentally while swimming in the pool at Hillcrest Motel. The cause of death is not seriously contested.
Wilson was paid an annual salary and a per diem when traveling. He was reimbursed for motel, telephone and other expenses. He was on call 24 hours per day, having no set hours of work. He was on Ms own initiative as to when he worked to accomplish Ms assignment. He had full authority to interrupt his work day for personal reasons hut remained on call even during these interruptions. It was normal for those holding positions as staff representatives to work out of the hotel or motel where they were staying during these campaigns. According to his supervisor, even though Wilson would be subject to call during self-designated periods of rest, relaxation or exercise, he was not required to leave word where he could be reached during these periods or to account to anyone for his time or whereabouts. He was expected to leave word at the home office as to where he could be reached. Wilson had advised this office that he would be at the Hillcresl. Motel during his stay in Pocahontas.
HAW policy encouraged their employees to exercise and remaiu physically fit. They required annual physical examinations of these employees. They provided a $25 per year allowance for their representatives to enroll in YMOA programs. There is no evidence that Wilson ever took advantage oP this allowance. Wilson had told his supervisor that swimming was one of his forms of relaxation and exercise. Other than (Ins In1 had no knowledge of Wilson’s practice of swimming at motels although he knew that Wilson spent a lot of time at motels. Bingaman stated that the Hillcrest Motel was the headquarters of both Wilson and tShivons during this campaign. Bingaman also testified that he had no objection to the usual practice of a staff member swimming in a motel pool when in operation, if the member enjoyed that type of recreation. The physical fitness program was voluntary, and some took advantage of it and some did not.
Appellant testified that she and her husband swam a lot when they stayed in a motel. She said he was never at home long enough to swim either in the pool or lake in the subdivision in which they lived. There was no reason for anyone to have called Wilson between 11:00 a.m. and 2:00 p.m. on the date of his death, although there was no reason to say with assurance that no one would call him. It was stipulated that Wilson was in the swimming pool alone and that no lifeguard was provided at the pool.
"We find that there was a question of fact as to whether the death of Wilson arose out of and in the course of his employment and find substantial evidence to support the commission’s finding that it did not. In its findings the commission stated:
“Tim Commission concludes from all of the evidence that deceased’s death did not arise out of and during the course of his employment. The Commission is unable to say what caused deceased’s death. There is a lack of evidence to establish a causal connection between deceased going swimming, if lie did, and his employment. ' Deceased’s employment did not require him to go to the swimming pool and Hiere is no evidence that he was performing any service for his employer by taking off from his work activities in the middle of the .day to go sun bathing or swimming. He was engaged in an activity of his own choosing and it was not one that bore a causal connection with his employment.”
In considering this case, it is necessary that we keep in mind basic fundamentals concerning review of workmen’s compensation cases. The burden was on the claimant to show that the injury arose in the course of the employment and grew out of or resulted from the employment. American Casualty Co. v. Jones, 224 Ark. 731, 276 S.W. 2d 41. The findings of the Workmen’s Compensation Commission have the same binding force, effect and verity as the verdict of a jury and are treated in this court in the same manner as a jury verdict. Kelley v. Southern Pulpwood Co., 239 Ark. 1074, 396 S.W. 2d 305; American Casualty Company v. Jones, 224 Ark. 731, 276 S.W. 2d 41. In doing so, we must accept that view of the facts which is the most favorable to the commission’s findings. Albert Pike Hotel v. Trapner, 240 Ark. 958, 403 S.W. 2d 73; Burrow Construction Co. v. Langley, 238 Ark. 992, 386 S.W. 2d 484; Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S.W. 2d 113. Wo must also keep in mind that the commission must determine the extent to which credit is given to testimony, even when il is undisputed. Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W. 2d 468; American Casualty Co. v. Jones, 224 Ark. 731, 276 S.W. 2d 41; Meyer v. Seismograph Service Corporation, 209 Ark. 168, 189 S.W. 2d 794. When we consider the findings of the commission in the same manner as we would a jury verdict on the question involved here, we must sustain the commission’s findings.
Even though there is no conflict in direct evidence as to facts material to a determination whether an employee met death while in the course of his employment, the Workmen’s Compensation Commission has a right to consider all circumstances and proven facts and to draw all reasonable inferences deducible therefrom. United Steel Workers v. Walden, 228 Ark. 1024, 311 S.W. 2d 787. The questions posed in this case are the same, that confronted the court in Woodmansee v. Frank Lyon Co., 223 Ark. 222, 265 S.W. 2d 521. They are: “Do'the facts and circumstances of this case show, as a matter of law, that appellant's injury arose out of and in the course of his employment? Or, to the same effect, the question may be more specifically stated: Do the facts and circumstances shown by the record reveal a lack of substantial evidence to support the commission’s finding that appellant’» injury did not arise out of and in the course of his employment?” There we answered both questions in the negative, as we do here. In the opinion in that case it was carefully pointed out that the commission, in applying undisputed facts to the governing rules, must use some degree of discretion and judgment in this kind of a case. We quoted with approval from Miller v. Keystone Appliances, 133 Pa. Super. 354, 2 A. 2d 508. That court said:
“ ‘Whether deceased was in the course of hi? employment when he was iujured is a question of law. * * “ But in determining that question we must bear in mind the liberal construction that this term lias received in tlie courts, and the exclusive function of the compensation authorities to find facts, whether from direct or circumstantial evidence, and the inferences therefrom.’ ”
This case hears a great similarity to the Woodmansee case in that here, as there, portions of the testimony could be interpreted as indicating compensability while other portions, and in some instances the same testimony, can be interpreted as indicating noncompensability.
The rules governing activities commonly referred to as recreational are most succinctly stated in Larson’s text on Workmen’s Compensation Laws, Yol. 1,§ 22, page 349, an authority frequently cited and relied upon by this court. The rule is stated thus:
“Recreational or social activities are within the course of employment when
(1) They occur on the premises during a lunch or recreational period as a regular incident of the employment; or
(2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or
(3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life. ’ ’
Bach of the three alternative tests stated by Professor Larson is quoted in the opinion in the Woodmansee case, with approval, where guideposts for determining compensability of a claim such as this were established. In view of the fact that the evidence would not justify any inference that the employer in this case would derive any benefit from Wilson’s swimming activities other than morale and efficiency benefits, we find that the third test was not met. In this respect, the comments of Professor Larson in Vol. 1, § 22.30, page 375, are pertinent:
“ ‘ Controversjr is encountered also when 1ho benefit asserted is the intangible value of increased worker efficiency and morale. Basically, the trouble with this argument is not that such benefits do not result, but that they result from eveiy game the employee plays whether connected with his work or not. In this respect, the argument is reminiscent of the same view sometimes heard in connection with the personal comfort cases: eating, resting, and the like do indeed improve the efficiency of the employee, but this is equally true (and even more true) of the sleeping and eating which he does at home. And so, just as in the sleeping and eating cases some arbitrary time and space limitations must circumscribe the area within which the “benefit” establishes work-connection, the recreation cases must submit to some similar limitation, since otherwise there is no stopping point which can be defined short of complete coverage of all the employee’s refreshing social and recreational activities. It can be taken as the distinctly majority view that these morale and efficiency benefits are not alone enough to bring recreation within the course of employment.’ ” (Emphasis added.)
Certainly it cannot be said that the commission was unjustified in drawing the inference that the IT AW received no other benefit from the activity in which Wilson was engaged at the time of his deaih.
It could not be said that the employer expressly or impliedly required Wilson’s swimming. There was nothing to indicate that Wilson, at this time, was engaged in any activity whatever on behalf of his employer. Even though he was expected to entertain and solic it employees of the company whom lie was attempting to organize for his employer, there is no evidence whatever that he saw any of these on the day of his death, much less dining' the time that he was in and around the motel after leaving the union hall. Clearly, the evidence did not make YATlson’s swimming a part of his services. Thus the second test was not met.
Appellant’s strongest arguments for compensability must he tested by the first alternative stated by Professor Larson. She contends: that the entire premises of the Hillcrest Motel were the employer’s premises under the circumstances here; that, since AAllson was subject to call at any time and place, the swimming pool constituted a part of those premises, as long' as he was in Pocahontas on the mission assigned to him; that his swimming' was in compliance with company policy encouraging physical fitness; that Wilson’s death occurred around noon after lie had done work in preparation for an afternoon meeting but before the meeting took place; that his recreational activity was accepted and normal.
AYliile it might have been reasonable for the commission to draw the inference from these circumstances that AYilson’s death occurred on company premises during a lunch or recreational period and that his swimming was a regular incident of the employment, we cannot say that it was not reasonable or proper for the AATorkmon’s Compensation Commission to draw the opposite inferences, as it did. As we see it, the fact finder made a permissible finding on a close question of fact by resolving the inferences adversely to the claimant’s contentious. What we said in Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487, is appropriate here:
“Perhaps the trial court fell into error by reason of its conclusion that statutory law requires that testimony must always he given a liberal construction in favor of the claimant. It is true that it is the duty of the Workmen’s Compensation Commission to draw every legitimate inference possible in favor of a claimant and to give him the benefit of the doubt in factual situations. (Citations omitted.) But it is not the province or duty of either the circuit court or this court to make a de novo application of this rule on review. Both courts are required to view the evidence in the light most favorable to the findings of the Commission and to give the testimony its strongest probative force in favor of the action of the full commission. (Citations omitted.) The question is not whether the testimony would have supported a finding contrary to the one made, but whether it supports the finding which was made.”
Appellant cites and relies upon numerous eases from other jurisdictions, (the vast majority of which sustained commission findings of compensability) some of which might have persuasive value were it not for the fact that the Arkansas guicleposts for compensability had been so definitely established in the Woodmansee case. None of the Arkansas cases relied upon by appellant have to do with activities that might be called recreational. Some of those cases have to do with activities of an employee which were not involved in precisely what he was hired to do by his employer. Many of them are cases in which a finding by the Workmen’s Compensation Commission that the death arose out of and in the course of employment was affirmed. Sec. Arkansas Power and Light Co. v. Cox, 229 Ark. 20, 313 S.W. 2d 91; Williams v. Gifford-Hill and Co., 227 Ark. 340, 298 S.W. 2d 323; American Casualty Co. v. Jones, 224 Ark. 731, 276 S.W. 2d 41; Blankinship Logging Co. v. Brown, 212 Ark. 871, 208 S.W. 2d 778, Lundell v. Walker, 204 Ark. 871, 165 S.W. 2d 600.
Other cases have to do with acts of personal ministration, which are universally recognized as incidents of the employment and as such protected as injuries on tlio actual employment, so long as they are only slight deviations, and are done with the consent or acquiescence of the employer. Tinsman Mfg. Co. v. Sparks, 211 Ark. 554, 201 S.W. 2d 573; Williams v. Gifford-Hill and Co., supra. Others recognize exceptions to the “going and coming rule,” where tlie employer furnishes the method of transportation, or when the employee is injured at a place so close to the employer’s premises as to be considered a part thereof, or when the employee has a duty to perform for the employer while en route home or under the traveling salesman rule, where the travels of the salesman are within the course of his employment from the time he leaves home until he returns, for the reason that the traveling itself is a large part of the job. Hunter v. Summerville, 205 Ark. 463, 169 S.W. 2d 579; Tinsman Mfg. Co. v. Sparks, supra; Bales v. Service Club, 208 Ark. 692, 187 S.W. 2d 321; Owens v. Southeast Arkansas Transportation Co., 216 Ark. 950, 228 S.W. 2d 646; Frank Lyon Co. v. Oates, 225 Ark. 682, 284 S.W. 2d 637.
The decision in the case of Fine Nest Trailer Colony v. Reep, 235 Ark. 411, 360 S.W. 2d 189, is also distinguishable. There the salesman’s death did not occur during any period of recreational activities, but from activities of the salesman in preparation of a meal in a house trailer lie had endeavored successfully to sell to a prospective customer who accompanied him to the house trailer which was located on a tract of land occupied by. the salesman. The negotiations were over an extended period, and the steak which the salesman was preparing to eat had been purchased while he and the customer were en route to the trailer. The sale was concluded about 8:30 p.m., and the salesman’s invitation to the customer to stay and eat with him had been declined. It was pointed out in that opinion, that it was necessary that the salesman bring the. house trailer to his employer’s place of business the next morning in order to complete the sale and that he was driving a company truck equipped to tow house trailers. In that case the court clearly stated that if a reasonable inference had been dedueible from the evidence that the salesman’s death did not grow out of and in the course of his employment, the decision of the commission denying compensation must have been affirmed. The court found that the only reasonable inference to be drawn was that the death, under the circumstances, grew out of and in the course of the employment. We do not consider that to be the case here.
The judgment of the circuit court is affirmed.
George Rose Smith, Jones, and Holt, JJ., dissent.
J. Fred .Toner, Justice.
I do not agree with the majority opinion in this ease. The known facts are not in controversy. There is no serious contention that Mr. Wilson’s death was not the result of an accident within the meaning of the Workmen’s Compensation Act, and there is no question, in my opinion, that it occurred within the course of his employment. Had Mr. Wilson died as a result of slipping in the shower at the motel or by being struck by an automobile while crossing the street to a cafe for lunch, the compensation coverage under the other facts in this case, including the nature of the duties of his employment, would not be questioned.
The commission seems to have found that the accident did not grow out of, or occur within, the course of the employment because Mr. Wilson had stepped out of, or deviated from, the course of his employment and was engaged in recreational activity for his own personal pleasure and benefit when his death occurred. The majority finds substantial evidence to support this finding, but I do not.
I do not consider this a recreational injury case at all under the facts in the record. Mr. Wilson did not go to the municipal swimming pool for an hour or so of recreation and to get away from it all, neither was he on an outing in quest of recreation. The record does not reveal how late Mr. Wilson worked on the night before his death, but Mr. Wilson’s associate had gone to bed üred and worn out at “a quarter till eleven” the night before and left Mr. Wilson still working. Air. Wilson was up before 7:30 on the day of his death and had worked that morning at a Union Hall preparing it for a 3:00 p.m. meeting. Rather than take time out for lunch on the day of his death, instead of stepping outside the course of his employment for recreational purposes, Mr. Wilson stepped outside his motel room for a clip in the motel pool before going to the afternoon meeting. What was Mr. Wilson’s state of mind in selecting the pool rather than the shower, if one was available, is not in the record, but I do not consider the difference of any importance. Whether Air. Wilson felt that he was too strained and tense to face the organizational work in the afternoon and was attempting to relax before attending {he scheduled meeting will probably never be known. But in my opinion a motel room door between the shower and the motel pool is too narrow a dividing line between course of employment and recreation for personal pleasure, and certainly I am of the opinion that the claimant widow was entitled to the benefit of any doubt.
Ii is much more logical to me, under the facts of this case, that Mr. Wilson was attempting to freshen up and relax in preparation for his afternoon meeting rather than foregoing his lunch for a swim in' a motel pool for exercise and personal pleasure. Tt seems to me that to conclude otherwise would require an assumption that Mr. 'Wilson preferred the pleasure of swimming to the necessity of eating.
It is my opinion that Air. Wilson was within the course of his employment when he returned to his motel room following his work at the Union Hall in preparation for the afternoon meeting, and it. is my further opinion that he did not abandon, or deviate from the course of his employment, when he stepped across the threshold of his motel room and entered the swimming pool which the motel had provided for the use of its guests.
I ■would reverse.
I am authorized to state that George Rose Smith and Holt, JJ., join in this dissent. | [
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John A. Fogleman, Justice.
Appellant seeks reversal of a decree denying Ms petition to redeem property from a sale to the state for nonpayment of taxes for the year 1941. The material facts are stipulated. They are:
The property was acquired by various persons through mesne conveyances from the United States Government. It was forfeited at various times for the nonpayment of taxes. It was sold to the State of Arkansas for the nonpayment of taxes for years prior to 1918. It was conveyed by the State of Arkansas on August 31, 1918, to Paul A.-Birnbach by deed which is recorded in Pulaski County. On August 19, 1919, Birnbaeh conveyed the property to Fred A. and Bruno Binke as tenants in common. Fred A. Binke paid taxes on the lands for the years 1919, 1920, 1921 and 1922. The property was sold and forfeited to the State of Arkansas for the nonpayment of taxes for the year 1923. An action to confirm the sale for the 1923 taxes was instituted in the Chancery Court of Pulaski County, Arkansas, pursuant to Act 296 of the Acts of 1929. A decree of confirmation was entered in that cause on January 15, 1931, eon-I'hming the sale of the property against all informalities and irregularities. The Clerk of Pulaski County made no record of the list of lands delinquent for the nonpayment of the taxes for 1923 filed by the collector. On January 11, 1935, Fred A. Binke was adjudged to be mentally incompetent, and he remained incompetent continuousi3r until the date of his death on January 28,1965. He died intestate, leaving surviving him his widow, Clara Binke, and Benny A. Binke, William C. Binke and Fredene Ke.ione, nee Binke, as his sole and onty heirs at law. Appellant Benny A. Binke has acquired all of the right, title and interest of the other parties by deed dated October 14, 1966.
The lands were also sold and forfeited to the State of Arkansas for the nonpayment of the taxes for the year 1941. On June 5, 1945, the State Land Commissioner conveyed the property to Manie Schuman by deed now of record. On October 12, 1958, Manie Schuman conveyed +he lands to Janis Kaye, who, in turn conveyed an undivided one-fourth interest each to Robert Allen Kaye, Marlene Kaye and Rebecca J. Kaye. Manie Schuman and his grantees have paid the taxes on all of these lots from 1945 to the date of the hearing in the trial court. On May 13, 1958, Benny Rinke was appointed guardian in succession of the estate of Fred Rinke. Neither of the guardians of Fred Rinke knew that he had any interest in the lands involved in this action. At no time between the forfeiture of 1923 and the forfeiture of 1941 was there a continuous and uninterrupted payment of taxes for a period of seven years. The lands were unoccupied and were wild, unenclosed and unimproved lands prior to the purchase by Manie Schuman in 1945. On September 29, 1953, Manie Schuman entered into a lease with J. M. Shackleford under the terms of which Shackleford was to use these lands with others as a pasture for his cattle. Since that time the pasture has been fenced.
Appellees claim title through payment of taxes under color of title since 1945, by the deed from the Commissioner of State Lands to Manie Schuman. They also alleged that Fred A. Rinke was not the owner of the lots by reason of the tax sale of 1923 for more than 10 years before he was adjudged mentally incompetent and that redemption was barred by laches and the statute of limitations by reason of the fact that a guardian was appointed for his estate in 1935.
From this ¡evidence, the trial court dismissed the ‘omplaint of appellant and made the following findings:
“That the forfeiture and sale to the State of Arkansas of the lots here under consideration, for the non-payment of the taxes due for the year 1923, and the subsequent confirmation decree effectively vested title to said property in the State of Arkansas, and the Plaintiff failed to redeem in the time and manner prescribed by law; and that the complaint of the Plaintiff should be dismissed.”
Ark. Stat. Ann. § 84-1201 (Supp. 1967) provides that lands or lots belonging to insane persons which have been sold for taxes may be redeemed within two years from and after the expiration of such disability. The .right to redeem given by this statute is self-executing and may be exercised as a matter of right. It is available in all cases, not only where the tax sale from which redemption is sought is defective, but from sales which are perfectly regular and valid. George v. Hefley, 182 Ark. 678, 32 S.W. 2d 445. The right of redemption given by this statute is not an estate or interest in land but is a statutory privilege to defeat the tax title within the time limited. It is not enlarged or diminished by the fact that the state may have sold and conveyed the interest acquired by it at a tax sale. Harris v. Harris, 195 Ark. 184, 112 S.W. 2d 40. The right to redeem runs with the land, and any person who would otherwise acquire title takes with notice. Koonce v. Woods, 211 Ark. 440, 201 S.W. 2d 748; Schiman v. Westbrook, 207 Ark. 495, 181 S.W. 2d 470. The right, exercised within the statutory time, is absolute. Schuman v. Westbrook, supra.
Under these circumstances, Fred A. Rinke would have had the right to redeem within two years after his disability was removed if he was the owner of the property at the time of the tax sale. The validity of the tax sale by which Birnbach acquired the lands is not in issue, nor is any defect therein shown. Consequently the deed from Birnbach to Fred A. and Bruno Rinke conveyed 'title which gave Fred A. Rinke the right to redeem. Our statute not only permits, but requires, a co-tenant to redeem the entire tract. Harris v. Harris, supra. Where the disability is removed by death, the heirs of the incompetent may redeem within the statutory period. Tarrence v. Berg, 202 Ark. 452, 150 S.W. 2d 753.
The right of appellant to redeem, then, depends upon the invalidity of the 1923 tax sale made before the incompetency of Fred A. Rinke. The decree of confirmation under Act 296 of 1929 operated as a bar only as to persons who might thereafter claim the land in consequence of any informality or illegality in the proceedings for the tax sale. Fuller v. Wilkinson, 198 Ark. 102, 128 S.W. 2d 251. A complete failure to record either the delinquent list or the publication of notice of sale is not an irregularity or informality in tax sale procedure, but renders the tax sale void. Carle v. Gehl, 193 Ark. 1061, 104 S.W. 2d 445. A number of cases holding that these failures are cured by confirmation proceedings are cases wherein the decree of confirmation was rendered under Act 119 of 1935. Under that act the decree of confirmation barred any and all persons with certain exceptions mentioned in the act but not material here. The distinction is clearly pointed out in Fuller v. Wilkinson, supra. These cases are inapplicable to a proceeding conducted under Act 296 of 1929.
The right of redemption being absolute and a statutory privilege, it is not barred by limitations or adverse possession because of the savings clauses in favor of persons under disability. Schuman v. Westbrook, 207 Ark. 495, 181 S.W. 2d 470; See also Kendrick v. Bowden, 211 Ark. 196, 199 S.W. 2d 740. The appointment of a guardian for the incompetent did not set the statute of limitations in motion where there was a savings clause in favor of a person under disability. Zini v. First National Bank of Little Rock, 228 Ark. 325, 307 S.W. 2d 874. Since appellant was only seeking to enforce a legal right not barred by the statute of limitations and was not seeking equitable relief, the doctrine of ladies could .have no application, even if it could otherwise apply. Davis v. Neal, 100 Ark. 399, 140 S.W. 278; Lesser v. Reeves, 142 Ark. 320, 219 S.W. 15. The doctrine of laches is applicable only where equitable relief is sought. Beattie v. McKinney, 160 Ark. 81, 254 S.W. 338.
Appellees claim that they acquired title by payment of taxes under color of title for more than seven years under Ark. Stat. Ann. § 37-102. This statute simply provides that unimproved and unenclosed land shall be deemed to be in possession of the person who pays the taxes thereon if he has color of title. This section is in itself a statute of limitations on actions to recover land and, because of the savings clause in favor of persons under disability, would not bar the absolute statutory right to redeem, which is subject to no limitation or restriction except as to the time in which it shall be exercised, i.e., within two years after the removal of the disability. Schuman v. Westbrook, supra.
Appellees rely upon the case of Rinke v. Weedman, 232 Ark. 900, 341 S.W. 2d 44. That case has no application here. In the first place, it was agreed between the pai'ties there that the tax sale under which Fred A. Rinke originally claimed ownership through Ms purchase from Birnbach was void. Thus Rinke acquired no interest whatever in the property until he obtained a deed from the Abigail Robertson Scholarship Trust in 1958. Weedman had obtained a deed from the Commissioner of State Lands in 1939 and had paid taxes on the land for more than seven consecutive years prior to acquisition of title by Rinke. In the case before us it was stipulated that at no time prior to the forfeiture of 1941 had there been any continuous and uninterrupted payment of taxes for a period of seven years. Thus there could not have been an}7 divestiture of the title of Fred A. Rinke by payment of taxes, nor had his predecessor in title been divested of title before conveyance to him, as was the. situation in the Weedman case.
The decree of the chancery court is reversed and the cause remanded for further proceedings consistent with this opinion.
Jones, J., not participating. | [
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George Rose Smith, Justice.
The appellee obtained a judgment against Homer Dutton and served writs of garnishment upon the appellant. The appellant, as garnishee, filed three successive answers to the appellee’s interrogatories, each admitting that the garnishee owed Dutton a certain amount and stating that the garnishee ‘ ‘will turn over such withheld sum less reasonable Garnishee fees of $20 incurred in preparation of this answer [Ark. Stat. Ann. § 31-146 (Repl. 1962)], upon receipt of an Order of this Court to that effect.” This appeal is from a judgment against the appellant for the full amounts owed by it to Dutton, without deduction of the three garnishee’s fees, totaling $60. For reversal the appellant argues that it is entitled to the asserted fees, each of which is itemized (and erroneously totaled) as follows in the appellant’s brief:
Secretarial expense $12.25
Postage (certified letter) 1.75
Telefax and long distance charges 6.00
Review of pleadings by counsel 5.00
$20.00
The pertinent language of the statute relied upon reads:
[The garnishee] shall not be subjected to costs beyond those caused by his resistance of the claim against him; and if he discloses the property of the defendant in his hands, or the true amount owing by him, and delivers or pays the same according to the order of the court, he shall be allowed his costs. [§ 31-146, supra.]
We have not decided this precise point, but there is nothing in this statute to except it from our general rule that statutes regulating costs are strictly construed against the party claiming them. Peay v. Pulaski County, 103 Ark. 601, 148 S.W. 491 (1912); Hempstead County v. Harkness, 73 Ark. 600, 84 S.W. 799 (1905). Here the particular items claimed by the appellant are either attorney’s fees or miscellaneous expenses incidental to litigation. Such items are not recoverable, as costs or otherwise, absent a statute so providing. Romer v. Leyner, 224 Ark. 884, 277 S.W. 2d 66 (1955); American Exchange Tr. Co. v. Trumann Spec. Sch. Dist., 183 Ark. 1041, 40 S.W. 2d 770 (1931). The Texas case cited by the appellant is not in point, for there the controlling Rule of Procedure allowed “reasonable compensation” to the garnishee. Pan American Nat. Bk. v. Ridgway, 475 S.W. 2d 808 (Tex. Civ. App., 1972).
Affirmed.
Harris, C.J., not participating. | [
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Darrell Hickman, Justice.
Bob R. Smith, the appellant, was elected as a vice-president by the Citation Manufacturing Company, Inc. in Januray, 1975. At the same time he was elected a director. He went on Citation’s payroll about March the 1st. He was fired from his job as vice-president in June, after serving less than six months. Smith continued as a director until January, 1976.
Citation sued Smith in the Benton County Chancery Court for a breach of fiduciary duty and obtained judgment for $24,887.17. Smith was the sole stockholder of Equipment Sales & Service, a corporation to which Citation delivered some $65,000.00 in goods during 1975.
Smith appeals alleging essentially three errors. First, it is argued that because Citation had adequate knowledge of all Smith’s activities and information regarding Smith’s company, Smith did not breach his fiduciary duty to Citation. Second, the chancellor erred in refusing to admit a financial report prepared by an accountant. Finally, Smith argues the court erroneously determined damages.
Citation, an Arkansas corporation located in Siloam Springs, Arkansas, produces and distributes industrial cleaning equipment. Bob Smith had been a distributor of industrial cleaning equipment in California. He was introduced to Citation’s Board of Directors as one of the largest distributors in the states. He was hired as vice-president of operations and at the same time elected to Citation’s Board of Directors. Elmer Heinrich, the president and chairman of the board, had known Bob Smith, both of them having been in the business for some time, and introduced Smith to the board.
From January, 1975, through June, Citation sold to Smith’s California company some $65,000.00 worth of equipment.
Smith sold his company in California about June the 6th. It filed voluntary bankruptcy in October, 1975.
Citation claimed it was unable to collect all that was due for the sales to Smith’s company and suffered damages totall-ing $30,688.88 — as a result of Smith’s breach of his fiduciary duty.
The chancellor entered these specific findings and conclusions: . . .
6. From January 27, 1975 through June 1, 1975 Bob Smith had knowledge that Smith Investments and Equipment Sales were having cash flow problems, problems with collecting accounts, problems meeting their obligations as they arose, and other financial problems all of which were not disclosed to Citation. Knowledge of such problems would have been material to Citation’s decisions to extend credit and ship goods to Equipment Sales.
7. In June, 1975, Bob Smith received from Smith Investments two machines that Equipment Sales had purchased from Citation. Smith Investments had not paid Citation for the machines and Bob Smith knew this; he sold them for his own personal gain. . . .
2. Bob Smith, while serving as an officer and/or director of Citation, was negligent and breached his implied obligations and fiduciary duties as follows:
A. By failing to exercise ordinary diligence and good faith in neglecting to provide Citation with the information he had concerning his company’s probable inability to pay for goods purchased on credit from Citation.
B: By, failing to warn Citation that his companies would likely be unable to pay for the equipment purchased on credit when diligence and good faith required such warning.
C. By transferring equipment from Smith Investments and Equipment Sales to himself for satisfaction of his own personal obligations, knowing that Citation had not been paid for such equipment.
D. By permitting Citation to advance credit to Smith Investments and Equipment Sales in amounts exceeding their ability to pay when he knew or should have known that these companies would not pay for the goods.
E. By failing to make full and complete disclosure to Citation of the financial condition and affairs of Smith Investments and Equipment Sales as he knew them to be.
3. As a result of Bob Smith’s negligence and breaches of fiduciary duties, Citation has been damaged in the sum of $24,887.17 for which it should have judgment. . . .
On review it is our duty to affirm these findings unless we conclude they are clearly against the preponderance of the evidence. Porter v. Ark. Western Gas, 252 Ark. 958, 482 S.W. 2d 598 (1972).
There is no doubt Citation had information in its office that Smith’s financial dealings were suspect. Smith had been in bankruptcy court before and a Dun & Bradstreet credit report on file with Citation reflected that fact. Citation knew Smith was trying to divest himself of the company. Two checks from Smith’s company to Citation failed to clear the bank. Smith said he would take care of them.
Heinrich knew Smith owned the California company but denied he knew it was a corporation. Heinrich denied knowing of another corporation Smith owned called Smith Investments, of which Equipment Sales & Service was a division.
A critical shipment of equipment occurred in April, 1975. Heinrich wanted to ship $27,000.00 worth of equipment to Smith’s company. Smith said that much could not be accepted. Heinrich offered 60 days’ credit, the usual being 30 days. Smith accepted on his company’s behalf. It is undisputed that Heinrich and Smith agreed that if the equipment could not be sold, it would be reshipped to other distributors or buyers.
Smith’s main argument is that Citation knew all about his background and his ownership of the California corporation; further, that Citation knew, or should have known, about the California company’s financial condition.
There is no doubt that Citation did not know Smith withdrew $6,500.00 for himself when Smith came to Arkansas to be employed by Citation. Smith’s California manager testified that the account was overdrawn some $11,000.00 at about this time.
Smith did not tell Citation that he received two reports that the California company had an overdrawn bank account. A negative bank balance was a routine matter for the California company during 1975. Smith knew that shipments were made after he had this knowledge.
Smith’s manager in California testified he told Smith they could not pay for the large April shipment on time. Smith testified he checked with California and decided they could accept the shipment under the terms offered. Smith did not tell Citation his company had to sell equipment at cost to get operating money.
Smith took several pieces of equipment from his company when he sold it, knowing that it owed an outstanding indebtedness to Citation.
It is not apparent from the record that Smith told Citation he had lost a valuable line of merchandise — the Hotsy line. His company had sales of over $800,000.00 in 1974, the year it handled the Hotsy line; sales dropped to about $100,-000.00 the first five months of 1975. Smith regularly checked with the California company and had access to its continuing financial condition.
Smith was both a director and officer of Citation.
We defined the fiduciary duty of a director in the case of Sternberg v. Blaine, 179 Ark. 448, 17 S.W. 2d 286 (1929) as follows:
It may therefore be stated as the settled rule in this State that any failure of a director to exercise diligence or good faith which results in loss to a stockholder or creditor, entitles such stockholder or creditor to require the directors whose negligence have caused the loss to pay. In other words, the director whose negligence causes loss is liable for such loss to stockholders and creditors. Id. at 453.
We said in Bank of Commerce v. Goolsby, 129 Ark. 416, 196 S.W. 803 (1917):
For all practical purposes they (directors) are trustees when called upon in equity to account for their official conduct.
There is an even greater duty on one who is both a director and an officer in a company. Raines v. Toney, 228 Ark. 1170, 313 S.W. 2d 802 (1958).
The evidence in this case clearly supports the chancellor’s finding of a breach of the fiduciary relationship. There was testimony Citation did not fully know of the financial condition of Smith’s company, and if they had, the goods would not have been shipped.
Smith tried to offer as evidence an unaudited financial statement prepared by an accountant. The chancellor properly excluded it. It was not properly authenticated and no basis was laid for it being admitted as a business record, nor any exception defined in Rule 803 (6), Arkansas Rules of Evidence.
Smith argues the damages were excessive and Citation’s own unclean hands and negligence contributed to them. No doubt Citation knew some of the problems of Smith and his company. But a full and complete disclosure was due Citation by Smith and he fell woefully short of that mark.
Smith argues Citation knew of the sale of his company in June and had it acted promptly could have reduced its damages by $15,000.00. Smith says there was this much inventory of Citation equipment in California when he sold the company. Smith also argues he and Citation agreed that if the machinery could not be sold it would be redistributed and that Citation wrongfully failed to abide by this agreement.
No doubt if Citation had known in June what it learned later greater efforts would have been made to collect the debt. What those efforts would have been and the results of such efforts can only be speculation. There is conflicting evidence on whether there was sufficient Citation machinery on hand in June to cover the debt — it was about $30,000.00 at this time. Smith had removed two of the machines himself, knowing Citation was owed a substantial sum of money by his company.
The record reflects that Citation made extensive efforts to collect the debt. As a result of extended negotiations with the new owners and with a bank, about $10,000.00 worth of equipment was recovered, for which Smith received a credit.
It is undisputed that Citation, retaining no title or right to control over the equipment, sold the equipment to Smith’s company. There is no evidence the new owners were aware of any agreement between Citation and Smith to redistribute the machinery. In the written agreement Smith signed selling his company there is no mention of such a right — one Smith could have easily provided to protect his employer, Citation.
Consequently, there is no evidence Citation had any legal right to recover or reship the machinery. We cannot say the chancellor’s finding denying Smith’s claim for reduction of damages was clearly against the preponderance of the evidence.
Affirmed.
We agree. Harris, C.J and George Rose Smith and Fogleman, JJ. | [
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David Newbern, Judge.
In this case the issue is whether the alimony portion of a divorce decree is also the subject of an independent contract and thus not subject to modification.
In a modification hearing initiated by a petition filed by the appellant, the chancellor recited the circumstances surrounding the issuance of the decree. The uncontested divorce was taken on deposition. The decree provided alimony, child support and a detailed division of property. When presented to the chancellor, it had been signed by the parties and their respective attorneys who thereby purported to approve the suggested decree “as to form and substance.”
After the hearing on the appellant’s petition to modify, the chancellor held the alimony part of the decree was not subject to modification because, in his words, “I had nothing to do with the division of property” and “it was strictly the parties’ dealings.” Yet in his order, the chancellor relieved the appellant of his obligation under the decree to pay for insurance for the appellee’s car and for her gasoline purchases.
To us, it seems highly inconsistent that the chancellor would say the decree was “contractual” and thus not subject to modification with respect to one aspect of support for the appellee but not as to another. More importantly, however, we find no evidence in the record to show the decree should be regarded as an independent contract which would make the decree unmodifiable.
A leading Arkansas case on this question is Seaton v. Seaton, 221 Ark. 778, 255 S.W. 2d 954 (1953). There the court said:
Our decisions have recognized two different types of agreement for the payment of alimony. One is an independent contract, usually in writing, by which the husband, in contemplation of the divorce, binds himself to pay a fixed amount or fixed installments for his wife’s support. Even though such a contract is approved by the chancellor and incorporated in the decree, as in the Bachus case [216 Ark. 802, 227 S.W. 2d 439 (1950)], it does not merge into the court’s award of alimony, and consequently, as we pointed out in that opinion, the wife has a remedy at law on the contract in the event the chancellor has reason not to enforce his decretal award by contempt proceedings.
The second type of agreement is that by which the parties, without making a contract that is meant to confer upon the wife an independent cause of action, merely agree upon “the amount the court by its decree should fix as alimony.” Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700 [1908]. . . construed an agreement of the first type, and Holmes v. Holmes, 186 Ark. 251, 53 S.W. 2d 226, involving an agreement of the second type. See also 3 Ark. L. Rev. 98. A contract of the latter character is usually less formal than an independent property settlement; it may be intended merely as a means of dispensing with proof upon an issue not in dispute, and by. its nature it merges in the divorce decree. In the Holmes case we held that the second type of contract does not prevent the court from later modifying its decree. [221 Ark. at 780]
It seems clear in this case the parties were agreeing to the contents of the suggested decree when they signed it and presented it to the chancellor. The decree did not mention any separate agreement, and there is nothing, written or otherwise, showing intent that any agreement be enforceable separately from the decree.
In the Pryor case, cited in the excerpt above, our supreme court held the alimony portion of the divorce decree could not be modified where it was a recitation only of a separate contract which was intended by the parties to be enforceable independently of the decree. The court said that under those circumstances modification of the decree would amount to modification of the contract itself. Whether or not we are persuaded by the logic of that statement, we find no need to apply it here. The burden of showing the intent of the parties to have an independently enforceable contract is upon the party asserting it. Law v. Law, 248 Ark. 894, 455 S.W. 2d 854 (1970). We find nothing in the record on this matter other than the recitation by the chancellor that the matter was “ contractual .’’Wecanseeno basis for finding an independent contract. The mere fact that the parties had agreed on a suggestion to the chancellor of the contents of the decree is not enough.
Reversed and remanded for further determination whether the alimony portion of the decree should be modified. | [
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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 before this court is whether Craig Har-dage, Appellee, had an insurable interest in certain real property. The jury awarded $12,000.00 plus penalties and attorney’s fees.
A policy of fire insurance was issued by Farm Bureau Mutual Insurance Company of Arkansas, appellant, to Craig Hardage, appellee, insuring a dwelling against loss by fire in the amount of $12,000.00. Craig Hardage sold the property to C. Jack Anderson and the deed was recorded on July 28, 1977. Although Anderson signed the offer and acceptance without noticing the clause giving Hardage the house, he nevertheless signed the contract and closed the transaction. Anderson testified that he never once considered the house to be included in the.price he paid for the property. His agreement with Hardage was that the house belonged to Hardage until such time as Anderson began to bulldoze the property. This development never occurred.
Hardage visited the appellant’s office for the purpose of renewing the policy. He tendered the premium to appellant’s agent and it was accepted. At this visit Hardage explained the sale of the property and the plan for keeping the house for himself. The appellant was thus put on notice, but nevertheless renewed the policy. The house was completely destroyed by fire on August 19, 1977.
Hardage had an insurable interest in the house at the time of the loss by fire. Farm Bureau Mutual Insurance Company of Arkansas v. E. J. Barnes, 228 Ark. 68, 305 S.W. 2d 673, is a case very similar to the one at hand. There the court held that the buildings which were to have been removed were real property under “the eyes of the law”, and the plaintiff had an insurable interest within the meaning of Ark. Stat. § 66-515 (66-3901) and was entitled to recover the face value of the policy.
Appellant cites Williams v. Farmers & Merchants Insurance Company, 327 Fed. Supp. 1109 (D.C. Ark. 1971) as holding that an alleged purchase of real property under an oral agreement did not possess sufficient economic interest in the safety of the insured property to have an insurable interest therein. The facts in the Williams case are substantially different from the present case. In the present case, the purchaser of the land concedes that appellee retained ownership of the house involved.
Appellant raises the statute of frauds. The appellant, Farm Bureau Mutual Insurance Company of Arkansas, was not a party to the written or oral contract. Russell v. Keene, 239 Ark. 752, 394 S.W. 2d 131 (1965) held that a third party insurance company who was not a party to the contract may not raise the defense of the statute of frauds. This legal principle is restated in 73 Am. Jur. 2d 582 and also in 37 C.J.S. § 220(e).
We hold that appellee had an insurable interest in the property destroyed by fire. Therefore, the jury verdict for Hardage is affirmed and the appellee is awarded costs and attorney’s fee in the amount of $300.00. | [
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George Rose Smith, Justice.
At a bench trial the appellant was found guilty of two offenses and was sentenced to 20 years’ imprisonment for robbery and 10 years for theft of property, the sentences to be concurrent with each other but consecutive to any other sentences being served at the time of the judgment. The only argument for reversal is that the trial judge erred in not finding that the defendant had acted under duress — an affirmative defense under the Criminal Code. Ark. Stat. Ann. § 41-208 (Repl. 1977).
The conflicting testimony presented an issue of credibility for the trial judge. The liquor store clerk who was robbed testified that a man (Ernest Lee Jackson) came into the store, inquired about the price of liquor, and then tied one of the clerk’s hands and compelled her to open the cash register. At that point this appellant walked in the store and said, “Um, um, um, what is this?” The clerk twice asked the defendant to step outside and get help, but the defendant refused and started taking the money out of the cash register. Jackson and the defendant took $229 and left the store. There is nothing in the clerk’s testimony to indicate that the defendant acted under duress.
The defendant testified that she knew Jackson and was afraid of him, because he used to beat women and force them to do things. Nevertheless, she had offered Jackson a ride in her car only moments before the robbery. She said that she went in the store to buy a sixpack of beer. The robbery was in progress. She got the money and went out with it, because Jackson ordered her to. She was afraid he was armed, as he kept one hand at his side. She admitted she was on parole at the time and had four previous felony convictions, three of which were for robbery. Whether the defendant’s testimony overcame the State’s prima facie case was a question of credibility for the trial judge, whose decision ends our inquiry.
Affirmed.
We agree. Harris, C.J., and Fogleman and Hickman, JJ- | [
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J. Fred Jones, Justice.
This is a workmen’s compensation case and the extent of permanent partial disability to the body as a whole is the question involved.
The facts very briefly are these: On November 24, 3965, Mrs. Pauline Kay injured her back while in the course of her employment as a practical nurse by the Siielnutt Nursing Home. The injury occurred when Mrs. Ray fell partially to the floor while attempting to assist an aged patient into a wheel chair. The injury resulted iu the surgical removal of an intervertebral disc at the lumbosacral angle followed by a spinal fusion from the fifth lumbar vertebra to the sacrum on December 21, 1965. Mrs. Ray was paid compensation benefits for temporary total disability from the date of her injury until the end of her healing period on March 3, 1967. The claim before the Workmen’s Compensation Commission was for a determination of the extent or percentage of permanent partial disability.
The employer and its compensation insurance carrier controverted the claim for any permanent partial disability in excess of 20%. The Commission awarded 40% permanent partial disability to the body as a whole and the employer and compensation insurance carrier appealed to the Saline County Circuit Court. The circuit judge held that there was no substantial evidence to sus tain the Commission in awarding more than 20% permanent partial disability and Mrs. Ray brings this appeal, relying upou the following point for reversal:
“There is substantial evidence to support the award of the Workmen’s Compensation Commission, and the Circuit Court therefore erred in modifying that award.”
We agree with the circuit court that there was no substantial evidence to sustain the Commission’s award of more than 20%.
We recognize the controlling legal standards expressed by this court in all the cases cited by the appellant. We recognize that evidence in a compensation ease should be given its strongest probative force in fav- or of the action of the Commission. We recognize the responsibility of the Commission in drawing inferences from testimony open to more than a single interpretation. We recognize that the determination of the percentage of permanent disability in a workmen’s compensation ease is a function of the Commission not to be disturbed on appeal if supported by substantial evidence, and we also recognize that the degree of disability suffered by an injured employee is a factual question to be determined by the Commission as stated in Caddo Quicksilver Corporation v. Barber, 204 Ark. 985, 166 S.W. 2d 1, cited by the appellant.
The appellant cites the cases of Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685, and Wilson & Company, Inc. v. Christman, 244 Ark. 132, 424 S.W. 2d 863, in support of her contention, but those cases are clearly distinguishable from the case at bar.
The appellant argues in her brief that “the landmark decision in Glass v. Edens ...firmly established the doctrine that the Commission must consider numerous factors, in addition to functional or anatomical impairment in determining an injured workmen’s permanent partial disability.” If such doctrine was firmly established in Edens, it only applies when such additional factors pertain to disability and are presented to the Commission by competent evidence.
In the Edens case the Full Commission affirmed a referee’s finding of a 40% permanent partial disability io the body as a whole based entirety on a medical rating of 40% under the erroneous assumption by the referee, that he was dealing only with scheduled injury and was limited to the consideration of medical evidence only under a former decision of the Full Commission. The referee in the Edens case said:
“ ‘In the case of Jesse A. DeBin v. Kaiser Engineers, reported Vol. 214, page 3 of the Opinions of the Full Commission, the Commission held that evidence other than clinical findings cannot be considered to arrive at a rating for permanent partial disability. I must therefore only consider the medical rating of disability.’ ” (Emphasis supplied.)
In remanding the Edens case for further consideration, this court said:
“...Ark. Stats., § 81-1313 (d), provides:
‘A permanent partial disability not scheduled in subsection (c) hereof shall be apportioned to the body as a whole, which shall have a value of 450 weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury.’
Appellees contend that this amended section of the Workmen’s Compensation Act makes all injuries scheduled injuries and that an injured employee should only be paid for functional loss of use of his body.
We feel the Legislature’s use of the term ‘loss of use of the body as. a whole’ in Ark. Stats., § 81- 1313 (cl), when read in the light of other sections of the Workmen’s Compensation Law, which are not in conflict therewith, does not mean merely functional disability but includes, in varying degrees in each instance, loss of use of the body to earn substantial wages.”
There is nothing startling or so unusual about the decision of this court in the Edens case that marks it as a “landmark decision.” That decision would have really been a landmark decision had we agreed with the referee, and held that evidence other than clinical findings could not be considered in determining the extent of permanent partial disability and that only the medical rating of functional disability could be considered for lhat purpose. If such had been our holding, we would have eliminated the need for a referee or a Commission in determining extent of permanent partial disability. While in so holding we would have greatly lightened our own task in determining the substantial nature of evidence submitted in a permanent disability ease, we would have practically repealed the “other sections of the Workmen’s Compensation Law,” referred to in the Edens decision, including the statutory definition of disability. Only one disability, in all its degrees as to partial, total, temporary and permanent, is defined in Ark. Stat. Ann. & 81-1302 (e) (Repl. 1960) as follows:
“ 'Disability’ means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.”
Our decision in the Edens case did not establish the doctrine that the Commission must consider numerous factors in addition to functional or anatomical impairment, in determining an injured workmen’s permanent partial disability. We did not say in that case that the Commission must do anything. What we did say was that the Commission is not confined, in its consideration, to clinical proof or medical evidence alone, in arriving at the extent of permanent disability suffered by an injured employee under the Workmen’s Compensation Law. In Edens we simply held, in effect, that the legislature bad not placed the Commission in a medical strait jacket in determining disability as defined in the act, permanent or otherwise.
We did not know then, and we do not know now, what substantial evidence, other than the medical evidence, was before the Commission and available for its consideration in the Edens case. If there was other evidence before the Commission, it erroneously failed to consider it. The purpose in sending that case back to the Commission was for consideration of such other evidence as may have been before the Commission in that case, but which the Commission concluded it had no right to consider. The substantial nature of the evidence other than medical, marks the distinction between Wilson & Company, Inc. v. Christman, supra, and the case at bar.
In the Christman case, Christman sustained a similar injury and had a similar .education as the appellant in the case at bar. In that case 30% permanent partial disability was the highest amount by medical evidence and we affirmed the Commission’s award of 60%. Two of Christman’s former emplo3rers, for whom he had performed his lightest tasks, testified that they would not re-employ him on the basis of the medical reports. Aside from Christman’s own testimoiw as to his constant pain, the medical evidence, with emphasis supplied, was as follows:
Dr. Tom P. Cocker: “I do not believe that there is likelihood of further improvement as far as the back is concerned although the patient should continue on exercises in that hope.
I do not think that he will be able to return to manual type work or anything that requires repeated lending, stooping, lifting or prolonged standing or walking. It is my opinion that the patient has a permanent partial disability to his body as a whole of 25%. ”
JDr. William G. Lockhart, a neurosurgeon of the IIolt-KIroek Clinic in Port Smith, who performed the surgery on Christman, reported as follows:
“As stated in previous correspondence, I feel that we cannot, on any means, classify this boy with anything but a poor result from surgery.
Once we get through the emotional and psychogenic overlay here, I think that we would be justified in suggesting a permanent partial disability of the body as a whole of 25% to 30%.
I do not feel that this boy is going to be able to go back to an employment that he has enjoyed before such as manual exertions of lifting or bending over postures.
I do believe that he is employable in such work as bench work, in which he might be re-trained in. If he was able to get back into an 'enrplo3mble situation, regardless of its nature, I am sure that this would help reduce some of his anxiety and emotional overlay.
Several days ago, 6/20/66, he appeared in my office accompanied by his wife stating that he had total paralysis of the right lower extremity that had come on spontaneously.
* # * It was obvious, when he was examined in ilie office, that we were dealing with either a hysterical paralysis or malingering.
I feel that I have clone as much as I can do with üiis man at the present time. They seemingly do not wish to accept the fact that this could be a hyslerical problem and certainly his wife does not even like to consider the fact that there may be a question of malingering here also. It is obvious that we are not dealing .with that degree of physical disease at the present time that would cause the magnitude of problems, or for that matter what physical disease is present is so far overshadowed by these other factors that it is impossible to treat this man intelligently without thorough psychiatric evaluation and treatment.” (Emphasis supplied.)
In the Christman case we quoted from Larson’s Workmen’s Compensation Law, § 42.22, as follows:
“ ... [W]hen there has been a physical accident or trauma, and claimant’s disability is increased or prolonged by traumatic neurosis, conversion hysteria, or hysterical paralysis, it is now rmiformly held that the full disability including the effects of the neurosis is compensable. Dozens of cases, involving almost every conceivable kind of neurotic, psychotic, depressive, or hysterical symptom or personality disorder have accepted this rule.” (Emphasis supplied.)
We also pointed out in the Christman case “there is evidence in the record that appellee suffered poor eyesight as an additional handicap to some types of employment. ’ ’
Now turning to the case at bar, the members of the Full Commission examined the record for the preponderance of the evidence whereas, this court, as well as a circuit court on appeal, must examine the record for substantial evidence to support the finding of the Commission.
The referee, who heard the witnesses and observed their demeanor while testifying, summed up his impression of the appellant in the following language:
“Tlie claimant is a young woman who has proven herself to be adaptable in that she has learned the nursing profession as well as having been a saleslady and floor walker and an employee of a furniture company. The claimant impressed the Referee as being an articulate and knowledgeable lady, and the fact that she is only 39 years of age makes her a good candidate for rehabilitation.”
There is nothing in the record to refute the referee’s impression of the appellant, and therein lies part of the distinction between the ease before us and the Christ-man ease. Hysterical paralysis and partial blindness, as was evident in the Christman case, were not even suggested in the ease at bar, and appellant agreed in oral argument that traumatic neurosis is not contended as a contributing factor.
On direct examination the appellant gave her work history prior to her injury, but gave no testimony as to work history, attempts to work, or ability or inability to work since her injury and surgery. On cross-examination the appellant testified as follows:
“Q. Have you done any work since November 24, 1965 at all, anywhere?
A. No, sir.
Q. Have you done any work that you didn’t get paid for?
A. No, sir.
Q. Have you tried to get a job anywhere?
A. No, sir.
Q. Have you registered with the employment office ?
A. No, sir.
Q. Or gone to any places of business—
A. No, sir.
Q. —to see if they have any type of work? What hobbies do yon have?
A. Reading, watching television.
Q. Are you still able to do that?
A. Yes, sir, I have to lay down an awful lot so that passes the time for me.
Q. All right. Do yon drive a car?
Á. On occasion, yes, sir.
Q. Have you been driving a car since your injury on November 24, 1965?
A. Yes, sir.”
Appellant testified as to what the doctors had told her relative to the work she could do and what she should avoid, and she testified as to the types of work she had done prior to her injury. She offered no testimony at ail, of a substantial nature, pertaining to her ability to earn in the same or other employment, the wages she was receiving at the time of her injury.
Dr. McKenzie, one of the orthopedic surgeons who performed appellant’s spinal fusion, testified as follows:
“Q. Now I’ll ask yon if you had occasion to see her and make another report on March 3rd?'
A. Yes, sir.
Q. I’ll ask you if the patient was dismissed at that time with a disability rating?
A. At that time she said she was having some pain, but this wasn’t too much. Then that she had diffuse tenderness; that there was no muscle guarding at this time. There was some restriction in the motion of the spine. The x-rays, including the bending films, revealed that the fusion was radiographically solid and at that time we felt that she could return to work which did not require heavy lifting. And as a matter of fact, I think we sent a copy of this information, at this time, to the rehabilitation people so that they could make a contract with her to maybe start trying to train her in some activity which did not require heavy lifting, and she was dismissed at that time with 15 per cent permanent disability.
Q. Is it your opinion, based upon reasonable medical information that this is the disability this woman has?
A. Yes.
Q. Now with reference to work that she could not do heavy lifting, could you tell us what type of work that she might be able to do?
A. I think she could perform activities, most any activity which required use of her upper extremities. Activities in which a person is allowed to change position infrequently [sic] from a sitting to a standing position, or some type of work that she can get up and move about, providing she didn’t have to manipulate patients she could resume nursing, particularly as a medication nurse, or working in allied areas which the lifting was not required because this would allow her to change—
Q. Dr. McKenzie, the lady has testified that she has done work I believe as a floor lady and as a clerk in TG&Y store, which, if I’m correct is a dime store—
A. Uh-huh.
Q. —or something of that — Do you think she’d be able to do clerical work in a dime store or department store or something of that nature or be a floor lady?
A. Well, I don’t know what a floor lady is. I think that she might have difficulty. Some of the dime stores require when a girl is on the floor that they start standing until they sit down which would be — It is a pretty good chore for anybody and she would have difficulty doing that.
Q. If this floor lady is kind of a supervisory job where she could sit down sometimes and stand up part of the time, do you think she could do that?
A. I think so.”
Dr. McKenzie re-examined appellant in October 1967, and as to this examination, he testified as follows:
“Q. 1 believe at this time 3mu stated 15 to 20 per cent, not to exceed 20 per cent and this would include anticipated changes that may occur following this sort of procedure. Is that correct?
A. Yes, sir.
Q. Anticipating the things that might happen to her why it was still in that range of 15 to 20 percent?
A. (Nods affirmatively).
Q. I believe you mentioned that such things as diminished sensation or reflexes in the lower extremities and the sciatic notch tenderness would not, in and of themselves suggest disability, but I believe you used the term ‘physical impairment.’ Would you outline what impairment is involved? What you meant bjr impairment if you recall that portion of your testimony or if I’m stating it correctly?
A. Well, a physical impairment is — it’s an impairment of her physical ability to perform the normal activities that the body was designed for.
Q. Such as what? Walking?
A. "Walking, sitting, holding it together — I mean there are just numerous functions. Now then her impairment is that in her particular situation that she’s got a fused lumbosacral joint which in turn takes away a little bit of the motion of the lumbar spiue. The lumbosacral joint normally has less motion than the other lumbar joints and so the amount of lost motion insofar as that joint is concerned is decreased. The fact that her ankle jerk in itself is not perfect is not an impairment. It is a sign that there is some disturbance in the reflex arc but we will see some people who normally at times will not show a reflex at all and they’ve never liad anything wrong with them. So, I mean this is not a valid criterion for impairment and she has shown on up until later in her course that she has some atrophy of her right calf compared to left and this is a good objective finding that there has been impairment of the nerve function to the leg. Now this has come back within an eighth of an inch which means that so far as function is concerned there is very little functional impairment, in that sense.” (Emphasis supplied.)
Dr. R. H. Whitehead, a specialist .in psychiatry, testified as to neurotic overlay in appellant’s condition upon his one examination. His testimony was not considered by the referee and it was stated in oral argument in answer to specific questions, that no claim was made for traumatic neurosis.
Several medical reports were accepted in evidence, but they were all progress reports and contribute nothing of a substantial nature to the evidence relative to permanent disability. Dr. Horace Murphy, an orthopedic surgeon, examined the appellant and although his x-ray examination failed to reveal the fusion between the fifth lumbar vertebra and the sacrum, his testimony on permanent partial disability is as follows:
“Q. After that examination, did you conclude that the woman had any permanent disabilit}*' and, if so, how much?
A. In my report of May 23rd, I felt as though Ihe patient had twenty per cent disability as related to the body as a whole.
Q. Dr. Murphy, is that rating addressed to the amount of permanent, physical impairment she has? Does it include anything other than physical impairment? This figure, this twenty per cent that you just mentioned.
A. The figure is the disability which is associated with the patient’s having restriction of motion, having had a disc operation, presumably, at the L-5, S-l level; and absent ankle jerk; limited bilateral straight leg raising. These are the physical impairments which I think dictate this extent of disability.
Q. Mrs. Ray, as you know, was at the time she was injured a practical nurse, and her duties in volved a certain amount of lifting and the supporting of elderly patients in the nursing home where she worked. In your opinion, on the occasion of your last examination of Mrs. Bay, could she return to those duties with the expectation that she could perforin them successfully?
A. All I can say is that by the examination which I conducted of Mrs. Ray, with the stiffness in her back and her inability to bend, associated with the discomfort of straight leg raising, I don’t think she could do this type of work which, from my own patients, whom I have examined, have told me that it is a difficult job.”
On cross-examination, Dr. Murphy testified as follows :
‘‘Q. Dr. Murphy, along that line, of course, as a practical nurse doing the type of work she would be required to do in lifting patients, would it be fair to say that that would be classified as heavy lifting?
A. I think it really is, yes.
Q. But, by the sqme token, there would be certain employment in her condition and with the disability rating which she had which she would be able to perform.
A. Yes. Let me see if I can clarify this. There are various functions involved. For example, a woman who is going to, perhaps, sit at a desk and do certain paper work which is necessary, who is going to bring water to the patients, or who is going to give them their baths — this type of thing, I think she could do. Now, conversely, if she is required to lift the patient to the standing position and then sit him on the bedroom commode; if she is supposed to put him in his wheel chair; these are a strain on a good back and this she cannot do.
Q. Let me ask yp„u this. Here is a statement that Dr. McKenzie made at the hearing with reference to what we are talking about, and this was his answer:
‘I think she could perform activities, most any activities which requires use of her upper extremities, activities in which a person is allowed to change position frequently — ’ they’ve got ‘infrequently’ but I think they meant ‘frequently’ — ‘from a sitting to a standing position or some type of work that she can get up and move about, providing she didn’t have to manipulate patients, she could resume nursing, particularly as a medications nurse or working in allied areas in which the lifting was not required, because this would allow her to change.’
A. I think we have said almost identically the same thing.
Q. Both of you have said the same thing.
A. Yes, both of us have said the same thing.”
Dr. Murphy sums xxp as follows:
“Q. Now that you have all of the information that Mr. Rawlings has so comprehensively developed, are any of your opinions and conclusions as to the extent of this woman’s permanent physical impairment in the activities in which she can now engage, that is those opinions and conclusions which you expressed earlier today, are they changed in any way or altered?
A. No. I have simply evaluated this patient on the basis of what I saw in her — the stiffness in the back, the change in the reflexes and sensation, and the effect of straight leg raising on her back — and I have stated before and outlined what I thought she could and couldn’t do; and I still think her disability is as reported, twenty per cent of the body as a whole.
Q. But, medically, if she fell in 1963 and had been having back trouble since 1956, and if she fell again around June of ’66, medically you couldn’t divide it up and say how much of this twenty per cent is attributable to one thing- — to the fall in ’63, or the back trouble in ’56 — could you, Doctor?
A. I don’t think Solomon could, so far as that is concerned. All I say is that when I saw her and examined her, what I saw was a woman twenty per cent disabled.”
The appellee earnestly contends that a substantial portion of such residual disability as appellant does have, is a result of disease and accidental injuries suffered and sustained by the appellant prior and subsequent to the injury sustained in the course of her employment by the appellee. Dr. Murphy answers that argument with the observation that even Solomon could not differentiate one from the other.
The record indicates that the appellant was doing her work in a satisfactory manner while employed by the appellee prior to her injury. As to prior injury resulting in noncompensated disability, industry takes an employee as is. Regardless of other falls or injuries subsequent to surgery in this case, the defective disc was removed by surgery, the defective disc space was spanned by surgical fusion and the fusion was found to be solid upon final examination and discharge by the at tending physicians. One disc and one fusion were all that was involved in this case.
There is considerable controversy between the parties in this case as to whether the medical testimony pertaining to a 20% permanent partial disability relates to functional disability consisting only of physical limitation in the normal functional use of the body, or whether the doctors considered, and were also talking about, the statutory definition of disability pertaining to loss in ability to earn in the same or other employment the amount of wages the appellant was receiving at the time of her injury.
Be that as it may, the medical evidence was the only evidence the referee or the Commission had to go on in arriving at their conclusions in this case. We recognize, as we did in Wilson & Co. v. Christman, supra, that the Commission is in a better position than is the doctor, to evaluate a claimant’s ability to earn in the same or other employment the same wages received at the time of injury. When the Commission once has before it firm medical evidence of physical impairment and functional limitations within the peculiar knowledge and specialty of the examining physician, the Commission then has the advantage of its own supeiior knowledge of industrial demands, limitations, and requirements, in weighing the medical evidence of functional limitations together with any other evidence of how the functional disability will affect the ability of the injured employee to obtain or hold a job and thereby arrive at a reasonably accurate conclusion as to the extent of permanent partial disability as related to the body as a whole. As an example, in the case at bar, Dr. McKenzie testified “well I don’t know what a floor lady is.”
The Commission’s knowledge and experience, however, is not evidence, and the Commission can only apply its own knowledge and experience of industrial requirements as a jury might do in weighing all the competent evidence pertaining to handicaps suffered by each in dividual claimant as a result of compensable injury, in arriving at the amount or percentage of overall permanent disability that individual has suffered as a result of the injury.
There is substantial evidence in the record before ns, that the appellant’s physical condition was still improving when last examined by the doctors, and there is nothing in the record to contradict the referee’s finding that the appellant was a good candidate for rehabilitation. Regardless of whether the 20% permanent partial disability established by the medical evidence pertained to loss of physical function, or pertained to the appellant’s loss in wage earning capacity, there is no substantial evidence in the record that appellant’s permanent partial disability exceeds the 20% estimate contained in the medical evidence. The evidence of permanent partial disability in this case, aside from medical evidence on limitation of motion, boils down to appellant’s own testimony that she has to lie down a lot, and the doctors’ testimony that she cannot lift heavy objects in general and bed ridden or elderly rest home or hospital patients in particular.
While it is true that over $7,000.00 was spent in medical treatments for the appellant while she was receiving less than $2,000.00 in compensation payments, the amount and duration of compensation payments are limited by statute and medical expenses are not. Unless we could say as a matter of law, that in any industrial injury case a permanent loss in ability to earn must always follow, and exceed at least in some degree, the permanent loss in the functional use of the body as a whole, we must hold under the evidence in the case before ns, that the judgment of the trial court must be affirmed. We are unable to announce such rule of law, so the judgment of the circuit court is affirmed.
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John I. Purtle, Justice.
A White County Circuit Court jury returned a defendant’s verdict upon appellant’s complaint for damages in which it was claimed that appellee was guilty of negligence which proximately caused appellant’s damages. The only argument on appeal is that there was no substantial evidence to support the verdict. We cannot agree with this argument.
Roy Wells, one of the appellees, owned farmland in White County and agreed to lease a portion of his land to appellant who then constructed a radio transmitter tower thereon. Guy wires were fasted to the tower and anchored to the ground. Wells farmed the land for a time but later rented or leased it to Floyd McConnell, the other appellee.
On June 5, 1980, about 8:30 p.m., Wells, working as hired hand for McConnell, drove a farm tractor into one of the guy wires with sufficient force to fell the tower. The complaint alleged that Wells was careless and negligent in the operation of the tractor. During the trial the only evidence of anything causing the tower to fall was the force of the impact of the tractor with the guy wire. Wells testified that he knew the wires were present and was in fact looking back to see if the disk he was pulling would clear one wire when the outside dual wheel of the tractor struck another wire. The left front tire on the tractor struck the wire with sufficient force to topple the tower. Wells stated the sun was getting low and was in front of him when he drove into the guy wire. The wire he struck was in the shade at the time it was struck. He further stated he was acting in exactly the same manner he had on other occasions while farming this same land and he did not know of anything he had failed to do which any ordinary person in the same situation would have done. The trial court overruled appellant’s motion for a new trial.
The only question on appeal is whether the evidence, or lack of it, was sufficient to support the verdict. This court will not reverse a trial court’s denial of a motion for a new trial if the decision is supported by substantial evidence. Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982). However, the trial court is guided by ARCP, Rule 59 (a). One of the grounds listed in Rule 59 (a) upon which a trial court can grant a new trial is a finding that the verdict is contrary to the preponderance of the evidence or is contrary to the law. Rule 59 (a) (6) was amended by per curiam on May 17, 1982, to make it read “clearly contrary.” In Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982), we announced that on appeal the decision of the trial court will not be reversed absent an abuse of discretion. In Wagnon we were dealing with a situation where the trial court granted a motion for a new trial. In Landis v. Hastings, supra, the motion for a new trial was denied. Both cases were affirmed because there was not a sufficient showing of abuse of discretion. The motion for a new trial was denied in the present case. In accordance with the opinion in Landis we find that there was substantial evidence to support the verdict and there was no abuse of discretion. Therefore, we will not disturb the trial court’s action.
The court instructed the jury in accordance with AMI 603 to the effect that the occurrence of a collision is not evidence of negligence. The court also gave AMI 301 which states in part:
To constitute negligence an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.
At the time of this occurrence, appellee Wells was driving his tractor west into the sun. Also, the guy wire which he strick was in the shadows. Additionally, he stated that he was working in the same manner in which he had worked in past years, and that he had worked this field before. We cannot say that there was no substantial evidence upon which the jury could have made its finding that Wells was not guilty of negligence in striking the guy wire. In Celotex Corp., Inc. v. Lynndale Int'l, Inc., 277 Ark. 242, 640 S.W.2d 792 (1982), we quoted with approval from an earlier case which stated: We think the case of Spink v. Mourton, 235 Ark. 919, 362 S. W.2d 665 (1962) stated the rule appropriately when it said: “ . . . the motion for judgment n.o.v. was properly denied unless it can be said that the trial court should have directed a verdict in favor of the plaintiffs.” The facts before us in this case provide no evidence of error on behalf of the trial court in failing to direct a verdict in favor of the plaintiffs. We feel that the trial court acted properly in denying the motion for new trial.
A verdict upon an issue of fact should not be directed in favor of the party who has the burden of proof with respect thereto, unless such fact is admitted, or is established by the undisputed testimony of one or more disinterested witnesses and different minds cannot reasonably draw different conclusions from such testimony.
Affirmed. | [
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Richard B. Adkisson, Chief Justice.
Appellant, Wayne Richards, was convicted by a jury of first degree murder and was sentenced by the Hempstead County Circuit Court to 40 years in the Arkansas Department of Correction. On appeal we affirm.
About 7:00 p.m. on January 6, 1982, the victim’s body was found on the freeway in Hempstead County a few miles outside of Prescott. The facts leading up to the murder are as follows: Appellant and the victim, who was female, had been seen in Texarkana by a pawnshop owner who testified that appellant and the victim had both come into his shop on December 30; that on January 6, the victim had returned without appellant; and that on the latter occasion he noticed that she had black eyes and bruises on her face. Appellant told the police that he and the victim had left Texarkana on January 6, 1982, traveling east on 1-30. According to appellant’s statement, they got into a fight, he hit her, and she jumped out of the car. Appellant stated that he was going about 40 m.p.h. when she jumped but that he did not stop the car until he got off the freeway at the next exit. He then stopped at a service station and asked that the police be called.
The testimony of the medical examiner who examined the victim’s body did not substantiate appellant’s story. He stated that the victim had actually died from manual strangulation associated with blunt trauma to the head and face. He also testified that the victim’s body had been run over, after death, by a heavy vehicle.
Appellant first argues that the trial court erred in not dismissing the case for lack of jurisdiction because it is unclear where the crime was committed. Ark. Stat. Ann. § 43-1408 (Repl. 1977) provides:
Territorial jurisdiction of circuit and justices’ courts. — The local jurisdiction of circuit courts and justices’ courts, shall be of offenses committed within the respective counties in which they are held.
And, Ark. Stat. Ann. § 41-110 (2) (Repl. 1977) provides:
The state is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue.
We stated in Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978) that before the State is called upon to offer evidence on the question of jurisdiction, there must be positive evidence that the Offense occurred outside the jurisdiction of the court. Appellant alleges that the medical examiner’s testimony that the victim’s body had been run over by a heavy vehicle after death established that she was killed elsewhere and this constituted the necessary affirmative evidence that Hempstead County did not have jurisdiction. We cannot agree with this contention. The fact that the victim may have been dead when her body left the car is not affirmative evidence that she was killed in any particular place.
Appellant argues that the trial court erred in refusing to allow his brother to testify as to appellant’s medical history as a part of his insanity defense. During direct examination the brother was asked about certain medication appellant allegedly took as a child, but after the prosecution objected, the court refused to allow him to answer. We cannot say that this ruling was reversible error because a proffer was never made as to what the brother’s testimony would have been concerning the medication.
There are no reversible errors.
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Per Curiam.
Petitioner George Lewis was convicted of aggravated robbery on July 15, 1982. No appeal was taken. Petitioner now contends that he wanted to appeal, but his retained counsel Ronald Griggs said it would cost $1,000.00 and did not advise him that he could appeal as an indigent. Mr. Griggs has filed an affidavit in response to petitioner’s motion, stating that he told petitioner that an appeal might be successful but expensive. He says that he heard no more from petitioner after telling him that the “costs alone” of an appeal would be about $1,000.00. Petitioner alleges that he did not know that an appeal was available to an indigent person until he talked to other prison inmates after the time for filing a notice of appeal had passed.
Criminal Procedure Rule 36.26 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.
It is apparent from the attorney’s affidavit in this case that he neither withdrew from the case in accordance with Rule 36.26 nor took any action to see that his client understood that an indigent could ask the trial court to appoint an attorney to perfect an appeal at public expense. Since counsel knew that his client wanted to appeal, he was obligated to file a notice of appeal or obtain permission from the trial court to withdraw. To do nothing amounted to a denial of effective assistance of counsel. Finnie v. State, 265 Ark. 941, 582 S.W.2d 19(1979). If petitioner could not afford the cost of appeal, a motion for permission to proceed as an indigent should have been filed in the trial court. An attorney cannot abandon a convicted defendant merely because his appeal must be pursued at public expense. An attorney who wishes to withdraw from a case must obtain permission from the trial court to withdraw by means of a petition to withdraw containing a statement of reasons for withdrawing. A copy of the request for withdrawal, if granted, should be sent to appellant. Osbourne v. State, 276 Ark. 479, 637 S.W.2d 535 (1982); Green v. State, 276 Ark. 313, 634 S.W.2d 140 (1982); Finnie, supra.
Since he has never been relieved as counsel, Mr. Griggs remains attorney of record. Petitioner has provided this Court with an affidavit attesting to his indigency and is eligible to have counsel appointed. Therefore, petitioner’s motion for belated appeal is granted and Ronald Griggs is appointed counsel on appeal. A writ of certiorari shall be issued to prepare the record.
Motion granted. | [
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Darrell Hickman, Justice.
We granted review of a Court of Appeals decision in this case to determine whether the court exceeded its jurisdiction in changing the liability of a party that did not appeal from the trial court’s decision. We decide the Court of Appeals did exceed its authority and affirm the trial court’s decision.
On August 25, 1976, Fauria, the appellee, then twenty-three years old, went to Caudle-Brittenum-Standridge Agency seeking automobile insurance in the amount of $100,000 per person and $300,000 per occurrence. The agency issued him a binder in that amount with the appellant, the Millers Casualty Insurance Company, to be effective until September 13, 1976.
On August 31, 1976, Millers contacted the agency employee with whom Fauria had dealt, Carolyn Huffman. Millers informed Mrs. Huffman that it could not provide coverage for Fauria with the limits requested because of his age. Mrs. Huffman contacted Fauria; he went to the agency on August 31st and signed an application for coverage with Equity Mutual Insurance Company. The application was for coverage in the amount of $100,00G/$300,000, and, according to the evidence, was considered to be a binder until the application was accepted or rejected by Equity. On September 1, 1976, Mrs. Huffman gota memo from Millers confirming the prior telephone call that Fauria would only be covered by Millers’ binder until September 13th.
Fauria’s application to Equity was sent to Equity’s general agent, Lewis & Norwood. Mrs. Huffman had failed to check Equity’s manual when preparing Fauria’s application and, therefore, did not see that Equity’s underwriting standards absolutely prohibit coverage for drivers under twenty-five years of age in excess of $25,000 per person and $50,000 per occurrence. Lewis & Norwood crossed out the higher limits on the application, filled in the maximum amount Equity allowed, $25,000/$50,000, and sent the application back to Mrs. Huffman on August 31st or September 1, 1976. The application was accompanied by a memo which explained the changes on the application. Mrs. Huffman returned the memo to Lewis & Norwood on September 2nd with the notation that the lower limits were acceptable. She tried unsuccessfully to contact Fauria to tell him about the change.
On September 6, 1976, Fauria was involved in an automobile accident with Carmat and Juanita Grites, in which Mrs. Grites was injured. Fauria called Mrs. Huffman and she informed him that his limits had been lowered. On September 19, 1976, the Criteses filed suit against Fauria for $300,000. Fauria subsequently filed this action for a declaratory judgment in chancery court seeking a determination of the amount of his automobile liability insurance coverage and the responsibility of the defendants for that coverage. The named defendants were Caudle-Brittenum-Standridge Agency, Millers, Lewis & Norwood, and Equity.
The chancellor found that at the time of the accident Fauria was covered by binders with both Millers and Equity in the amounts of $100,000/$300,000. He found further that Caudle-Brittenum-Standridge Agency was liable to Equity for any amount in excess of $25,000 which Equity might be found to owe. Lewis & Norwood was exonerated.
All the defendants filed notices of appeal with the Court of Appeals, but Equity and Caudle-Brittenum-Standridge Agency later dismissed their appeals and only Millers perfected an appeal. The Court of Appeals, in an unpublished opinion, affirmed the chancellor in all respects but one. It ruled that the chancellor’s finding that Equity’s coverage was for $100,000/$300,000 was clearly against the preponderance of the evidence and, therefore, modified Equity’s liability to $25,000/$50,000. The Court of Appeals was without jurisdiction to modify the judgment against Equity because the judgment against Equity had become final when Equity failed to appeal. A. S. Barboto Co. v. James, 205 Ark. 53, 168 S.W.2d 202 (1943). See also Burks Motors, Inc. v. International Harvester Co., 250 Ark. 641, 466 S.W.2d 945 (1971). In other respects we affirm the Court of Appeals decision, finding no reason to disturb the trial court’s disposition of the issues raised by Millers on appeal.
Affirmed in part.
Reversed in part. | [
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Frank Holt, Justice.
This is a usury case and is certified to us by the Court of Appeals pursuant to Rules of the Supreme Court and Court of Appeals, Rule 29 (1) (i). The transaction predates the recently enacted Amendment 60 to the Constitution of Arkansas (1874).
Three different instruments are involved in the transactions that ultimately gave rise to this action by the appellant Hutcherson to cancel the third instrument on the ground that it was usurious. The first instrument was an Oklahoma note executed by appellee Wood to appellee Adair in the amount of $20,000 with interest at 14% per annum. No contention is made that this instrument is invalid under Oklahoma law nor that Arkansas law applies to it. Subsequently, the appellant Hutcherson executed a promissory note in Arkansas in the amount of $30,000 to Wood with interest at 10% per annum. No contention is made that this instrument is usurious. The third instrument, which the appellant argues is usurious, was an assignment in Arkansas by Wood to Adair, signed by Hutcherson, of a portion of the $28,042.41 balance owed Wood by Hutcherson in an amount sufficient to retire the balance owed Adair by Wood on the $20,000 note. Wood had paid $6,029.77 on his note to Adair, leaving a balance of $13,970.23 owed with an interest rate of 14%. Hutcherson defaulted and later filed this action to cancel the assignment on the ground that it was usurious. Adair filed a cross-claim against Wood and a counterclaim against Hutcherson alleging default.
The chancellor found the assignment not to be usurious and entered judgment in favor of Adair against Hutcherson and Wood jointly and severally. He found that the assignment stated the balance from Wood to Adair to be $13,970.23 carrying a valid 14% interest rate, and that Hutcherson’s debt ($28,042.41) to Wood was considerably more than that amount at the time of the assignment. From the exhibits and testimony, he construed the assignment as not increasing Hutcherson’s interest liability on his $30,000 note to Wood, but as merely directing a dollar figure to be paid Adair, for which Hutcherson could take credit on his valid 10% obligation to Wood.
The appellant argues that the assignment increased his interest liability on a portion of the note executed by him to Wood from a valid 10% to an illegal 14% and that the chancellor erred in finding the assignment not to be a usurious transaction. We have said on many occasions that an intention to charge a usurious rate of interest will never be presumed, imputed or inferred where the opposite result can fairly and reasonably be reached. Pulpwood Suppliers v. Owens, 268 Ark. 324, 597 S.W.2d 65 (1980); McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S. W.2d 409 (1978); Key v. Worthen Bank & Trust Co., 260 Ark. 725, 543 S.W.2d 496 (1976); Brown v. Central Ark. Prod. Cred., 256 Ark. 804, 510 S.W.2d 571 (1974); Peoples Loan & Inv. Co. v. Booth, 245 Ark. 146, 431 S.W.2d 472 (1968). Here, the conclusion that the transaction was non-usurious can be reached fairly and reasonably.
As the chancellor held, appellant Hutcherson’s basic indebtedness to Wood on the Arkansas $30,000 note at 10% interest was not increased by the assignment and the assignment or transaction merely provided a dollar figure to be paid Adair by Hutcherson for which Hutcherson could take credit on his valid 10% obligation to Wood. It appears that in no event will Hutcherson be required to pay more on the Arkansas obligation than the unpaid principal plus 10%. Hutcherson, himself, testified that his underlying obliga tion was limited to 10% on the $30,000 Arkansas note to Wood and that he could not say that he owed more than 10% interest on the $30,000 note. This assignment did not infect the original or borrowing transaction with usury nor constitute a cloak for usury.
Affirmed.
Hickman, J., concurring, would affirm because of noncompliance with Rule 9, Rules of the Supreme Court and Court of Appeals. | [
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Frank Holt, Justice.
This case arises from an automobile accident in which the appellee George Anderson forced another vehicle across the center line and into the path of the appellant’s oncoming vehicle. The appellee did not stop at the scene of the accident. In her pleadings the appellant requested, in addition to compensatory damages, punitive damages in the amount of $100,000, alleging the appellee’s fleeing the scene showed a willful and wanton disregard for her welfare. At trial, the appellees stated that they would admit liability conditioned upon the court’s ruling that punitive damages were not recoverable. The trial court ruled that punitive damages are not recoverable for incidents occurring after the collision that had no proximate causation and that references to the appellee’s leaving the scene of the accident or the cause of the accident would be inadmissible. The jury returned a verdict of $500 for compensatory damages in favor of the appellant. Subsequently, the appellant moved for a new trial pursuant to ARCP Rule 59. The trial court denied the motion. Hence this appeal, which is certified to us by the Court of Appeals pursuant to Rules of the Supreme Court and Court of Appeals, Rule 29 (1) (o).
The appellant first asserts that the court erred in not granting a new trial inasmuch as the jury’s verdict was inadequate and contrary to the preponderance of the evidence, the law and instructions submitted to the jury by the court. The medical bills, which were stipulated to be reasonable, introduced by the appellant amounted to $490. In addition there were three estimates of the vehicular damage — one for $150, one for $479.61, and one for $731.23. Even though the appellees stipulated that the medical bills were reasonable charges for the services rendered, they denied that the medical expenses incurred by the appellant were proximately caused by the accident in question. The appellant did not seek medical attention until almost eight months after the accident, which her treating physician stated was unusual if her back troubles were caused by the accident. Furthermore, the physician also testified that the back ailment for which appellant sought treatment had existed prior to the accident. He had treated her two to three years before the accident. Hence, the jury could have found and apparently did find that the medical expenses incurred by the appellant were not proximately caused by the accident in question. In addition to the medical expenses and the vehicular damage, the appellant sought recovery for pain and suffering, which obviously was not proven in a precise amount. It appears that the jury awarded the appellant recovery based on one of the two smaller estimates of vehicular damage plus a small amount for pain and suffering. In Taylor v. Boswell, 272 Ark. 354, 614 S.W.2d 505 (1981), we said:
Civil Procedure Rule 59 has superseded our former statute with respect to new trials on account of the smallness of the verdict. Ark. Stat. Ann. § 27-1902 (Repl. 1962). Rule 59 merely provides that a new trial may be granted for ‘error in the assessment of the amount of recovery, whether too large or too small.’ Our former rule was that when the verdict was for a substantial amount, as this one is, the trial judge’s denial of a new trial for inadequacy of the award would not be reversed unless there was other error or the evidence definitely established a pecuniary loss in excess of the verdict. Bittle v. Smith, 254 Ark. 123, 491 S.W.2d 815 (1973). We need not determine to just what extent our law has been changed by Rule 59, because the appellant would not be entitled to a reversal even under the superseded statute and the former case law.
To the same effect see Waterfield v. Quimby, 277 Ark. 472, 644 S.W.2d 241 (1982). Here, we cannot say there was error in the jury’s assessment of the amount of recovery, nor can we say the award of damages was nominal.
The appellant next contends that the court erred in allowing Officer Steven Young, at the appellees’ request, to return to the stand and testify after his release from the witness rule and in the interruption of appellant’s order of proof. Young was the investigating officer at the accident and he was called to testify by the appellant. On direct examination he testified that he assigned $150 as estimated damages to the appellant’s vehicle. After testifying, Young contacted the appellees and appellees’ attorney to inform them that he had considerable qualifications in the area of automobile body repair and that he was disturbed that no one asked his qualifications when he gave his estimate of the damage to appellant’s vehicle. He denied having talked with anyone else concerning the lawsuit following his testimony. During cross-examination of the appellant, the appellees moved the court to allow Young to return to the stand to tell the jury of his qualifications, which was allowed. The appellant argues the court’s action in this regard was an abuse of the discretion which is granted the court in regulating the mode and order of interrogation and presentation of proof by Ark. Stat. Ann. § 28-1001, Rule 611 (Repl. 1979) and Ark. Stat. Ann. § 28-103 (Repl. 1979). Rule 611 (a) provides:
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
This is an area in which the law necessarily vests considerable discretion in the trial court. Parnell v. State, 207 Ark. 644, 182 S.W.2d 206 (1944); Smith v. State, 222 Ark. 650, 262 S.W.2d 272 (1953); Parker v. State, 252 Ark. 1242, 482 S.W.2d 822 (1972); 6 Wigmore, Evidence § 1867 (Chadbourn Rev. 1976); and 2 Louisell and Mueller, Federal Evidence § 334 (1979). We find no abuse of discretion here.
Finally, appellant insists that the trial court erred in excluding evidence that the defendant fled the scene of the accident. She argues that this evidence was relevant to show a willful and wanton state of mind on his part and, therefore, would justify an award of punitive damages. The appellant cites authority for the admission of evidence of hostile actions subsequent to the injury to prove malice at the time of the injury, as well as authority for the admission of evidence that the defendant refused to assist the injured plaintiff after an accident and induced others to refuse to assist him. Pogue v. Rosegrant, 98 S.W.2d 528 (Mo. 1936). Here, the appellant’s proffer of the excluded testimony contained nothing tending to show any of these elements on the part of the appellee. The proffered testimony merely stated that appellees’ truck changed lanes and caused another vehicle going the same direction, to the left rear, to swerve across the center line into the path of appellant’s vehicle, after which the appellee did not stop.
In order to support an award of punitive damages, the evidence must indicate the defendant acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice might be inferred. Negligence alone, however gross, is not a sufficient basis to justify the award of punitive damages. Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982); Hodges v. Smith, 175 Ark. 101, 298 S.W. 1023 (1927). In St. Louis, I. M. & S. Ry. Co. v. Dysart, 89 Ark. 261, 116 S.W. 224 (1919), we defined the prerequisites to an award of punitive damages as follows:
The terms ‘wilfulness, or conscious indifference to consequences from which malice may be inferred,’ as used in the decisions of this court, means such conduct in the face of discovered peril. In other words, in order to superadd this element of damages by way of punishment, it must appear that the negligent party knew, or had reason to believe, that his act of negligence was about to inflict injury, and that he continued in his course with a conscious indifference to the conse quences, from which malice may be inferred. (Italics supplied.)
According to AMI 2217, before a jury can impose punitive damages the evidence must show that the defendant “knew or ought to have known, in the light of 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.” Here, nothing in the proffered testimony indicated that the appellee knew or had reason to believe that his conduct would likely cause injury. There was nothing that would indicate “conscious indifference.”
In Schlosberg v. Doup, 187 Ark. 931, 63 S.W.2d 337 (1933), we held that the failure of a driver to comply with the law requiring him to give his name, license number, etc. and render assistance to the operator or persons injured in the other car had no bearing on the cause of the collision, and, therefore, the trial court properly refused to give an instruction on that matter. The Supreme Court of Mississippi, in a fact situation somewhat similar to the case at bar, held that the fact that the driver causing an accident drove away from the scene does not require an instruction on punitive damages. Continental Southern Lines, Inc. v. Lum, 254 Miss. 655, 182 So.2d 228 (1966).
We hold, under the facts of this case, that the court correctly refused to admit evidence that the appellee left the scene of the accident as a basis for an award of punitive damages.
Affirmed.
Adkisson, C.J., and Hickman and Purtle, JJ., dissent. | [
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Frank Holt, Justice.
The appellant was convicted of capital murder. Ark. Stat. Ann. § 41-1501 (Repl. 1977). The jury fixed his punishment at life imprisonment without parole. We reverse.
Vera Rhoden was brutally murdered in her home on June 6, 1980, during the course of an apparent burglary and robbery. She died from repeated blows to the head with a claw hammer. In April 1981 Freddie Lee Hendrix was arrested on an unrelated charge of aggravated assault. While he was incarcerated in the county jail and before he had obtained counsel, he signed an unsworn statement implicating the appellant, as well as himself, in the murder of Mrs. Rhoden. Nine days before appellant’s trial, Hendrix bargained a guilty plea, receiving a sentence of life,imprisonment. Thus, he was no longer a co-defendant at the appellant’s trial. In substance, his unsworn, written statement to the sheriff and his deputy was that he received ten dollars from the appellant for acting as a lookout while the appellant broke into the Rhoden home and killed and robbed her. At trial, Hendrix repudiated his statement, denying that he was present at the murder scene. He stated that he had signed the written statement under duress, and he had lied to the sentencing judge when he pled guilty on his plea bargain. He testified that his only knowledge about the crime was what he had learned from a person named Garland Woodberry, who was killed prior to trial in an unrelated incident. Woodberry had related to him, Hendrix, that appellant had committed the crime while Woodberry acted as a lookout.
When Hendrix recanted on the witness stand, the prosecution sought to introduce into evidence the written statement previously given to the sheriff and his deputy. Initially, the trial court sustained the objection of defense counsel on the ground that the written statement was hearsay. However, the prosecution later was permitted to read the statement to the jury over the objection of the defense. On appeal the state argues Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981), permits the admission into evidence of the written statement for pürposes of impeachment. We do not think Chisum is controlling here, because it is manifest from the record that Hendrix’s written statement was read to the jury, not for purposes of impeachment, but as substantive evidence to prove the truth of the matters asserted in it. When the defense moved for a directed verdict at the close of the state’s case, it appears that both attorneys treated the written statement as substantive evidence in argument to the trial court. Furthermore, the jury was instructed that Hendrix was an accomplice whose testimony required corroboration to sustain a verdict of guilty. This instruction presupposes the written statement was substantive evidence and invites the jury to so consider it. It appears that the prosecutor, in his argument to the jury, treated the written statement as substantive evidence of appellant’s guilt. We are convinced that the written statement made to the sheriff and his deputy was used as substantive evidence to prove the truth of the matters asserted in it. It was not given under oath and subject to the penalty of perjury at a trial, hearing, other proceeding, or deposition, so far as the record before us reflects. Therefore, it was hearsay. Ark. Stat. Ann. § 28-1001, Rule 801 (Repl. 1979); Patterson v. State, 267 Ark. 436, 591 S. W.2d 356 (1979); and Brown v. State, 262 Ark. 298, 556 S. W.2d 418 (1977). This statement does not come within any exception to the hearsay rule. As we said in Chisum v. State, supra:
It was formerly our rule that inconsistent statements were admissible only for impeachment and not as substantive evidence. . . . That limitation has now been abolished entirely in civil cases and has been similarly abolished in criminal cases when the prior statement was given under oath and subject to the penalty of perjury. Uniform Evidence Rule 801 (d) (1). The common law rule was not otherwise changed by the Uniform Rules and still prevails in criminal cases when the prior statement was not under oath ....
Accordingly, the trial court erred by allowing the statement to be read to the jury.
The appellant also argues the trial court erred by admitting into evidence certain photographs of the victim as she was found by the investigating officers. The trial court excluded numerous other photographs including some taken after the victim was moved from the scene of the crime. The appellant argues the prejudicial effect of the photographs, which were admitted into evidence, substantially outweighed their probative value, since the appellant was willing to stipulate to the cause of death, so they should have been excluded from evidence. Ark. Stat. Ann. § 28-1001, Rule 403 (Repl. 1979). The decision to admit photographs into evidence lies within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion; and a photograph is not inadmissible because it is cumulative or unnecessary due to admitted or otherwise proven facts. Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982). Here, these photographs were relevant and helpful to the jury in understanding the testimony of the witnesses. We cannot agree with the appellant that their probative value is outweighed by any prejudicial effect they might have had. No abuse of discretion is demonstrated.
Appellant insists that he was entitled to a mistrial due to certain remarks made by the prosecuting attorney which were designed to focus the jury’s attention on appellant’s failure to testify. We consider it unnecessary to discuss this contention since it is unlikely to occur upon a retrial.
We have reviewed the transcript for rulings adverse to appellant and find no other error prejudicial to his rights. Supreme Court Rule 11 (f), Ark. Stat. Ann. Vol. 3A (Repl. 1977).
Reversed and remanded.
Hickman, J., concurs. | [
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Robert H. Dudley, Justice.
This appeal raises questions about an alleged implied bias of the trial judge and his award of compensatory and punitive damages to the victim oían intentional tort. We affirm the judgment. Jurisdiction over this torteaseis in this Court pursuant to Rule 29(1) (o).
The case was tried before the court sitting as a j ury. The facts surrounding the intentional tort are in dispute but the testimony may be summarized as follows. The appellee, plaintiff Michael Rodgers, testified that on June 30, 1979, he, his wife, and a friend, John Martin Smith, were unarmed and in their parked vehicle at a Dallas County gravel pit. The appellant, defendant Herbert Matthews, armed with a shotgun, walked up to appellee and stated that he was going to kill him. As the appellant got closer the appellee j umped out of his vehicle and the appellant fired a .20 gauge shotgun directly into appellee’s abdomen. The appellee’s wife and John Martin Smith testified to the same sequence of events. This version was corroborated in part by the testimony of the two deputy sheriffs who investigated the mayhem.
The appellant’s account of the event was that the appellee grabbed the shotgun causing it to fire and injure himself.
The trial judge awarded $39,500 in compensatory damages and $67,000 in punitive damages.
Theappellant first contends the judgment should be set aside because of an implied prej udice on the part of the trial judge. He does not contend the trial judge was intentionally dishonest or that he was even aware of his bias but that, as a matter of law, bias must be implied.
The implied bias is alleged to exist because of three factors: (1) the trial judge coerced appellant into agreeing to a trial by the court; (2) the judgment was imprinted on paper with the name and address of the appellee’s attorneys in the margin; and (3) the opposing counsel served as a pallbearer at the funeral of the judge’s father. The arguments are without merit.
In this case the judge was not disqualified on constitutional or statutory grounds. See Ark. Const, art. VII, § 20; Ark. Stat. Ann. § 22-113 (Repl. 1962).
The fact that a judge may have, or develop during the trial, an opinion, or a bias or prejudice does not make the trial judge so biased and prejudiced as to require his disqualification in further proceedings. Walker v. State, 241 Ark. 300, 408 S.W.2d 905 (1966). Whether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge. Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757 (1959). The reason is that bias is a subjective matter peculiarly within the knowledge of the trial judge. We find no Arkansas case where a trial judge has stated that he was without prejudice and could hear a case and, without more, we reversed that decision. Thus, absent some objective demonstration of prejudice, it is a communication of bias which will cause us to reverse a judge’s decision on disqualification. In this case there was no objective showing of prejudice.
Appellant first contends that he was coerced into a trial by the court. This argument is based on a mimeographed form of pretrial order which requires the attorney who is to conduct the trial to appear at pretrial with the authority to enter binding stipulations, including authority to waive j ury trial .Not one word of spoken coercion is alleged to have occurred and appellant did not waive a jury until over four months after the pretrial order. On two occasions after the pretrial conference but before the trial the parties appeared in court and nothing was said about a jury trial. The argument is without merit.
Appellant next argues bias was shown because the judgment was typed on paper which had the name and address of appellee’s attorney printed on the margin. Again, we find no merit in the argument. Frequently trial judges request the attorney for the prevailing party to prepare the precedent. The appellant does not contend that such a practice is prejudicial but contends that it leaves an impression of prejudice with the client. We understand how a judgment typed on paper with the attorney’s name printed in the margin might leave an unintended impression upon a layman and we encourage the trial judges to request the prevailing attorney to prepare the precedent on plain paper. However, we do not find that type of implied bias which would cause us to reverse the case.
The next argument with regard to bias is more difficult. This case was tried on February 23 and 24, 1982. On March 24, the trial court commenced his memorandum of decision and completed it on March 26. Five days later, on March 31, 1982, the father of the trial judge died. The mortuary which made the funeral arrangements asked the j udge if he wanted any attorneys to serve as pallbearers. He responded affirmatively and the funeral director suggested that at least two attorneys be named. The judge considered both of the attorneys involved in this case but named only one, the appellee’s attorney. The funeral home then contacted the attorney who served as a pallbearer on April 3. On April 5, the memorandum of opinion was filed and on April 9 the judgment was entered. Thus, appellee’s attorney served as pallbearer eight days after the decision had been made but two days before it was communicated to the parties.
In Farley v. Jester, 257 Ark. 686, 692, 520 S.W.2d 200 (1975), we stated:
However, court proceedings must not only be fair and impartial — they must also appear to be fair and impartial. This factor is mentioned in a Comment found in 71 Michigan Law Review 538, entitled, “Disqualification for Interest of Lower Federal Court Judges: 28 U.S.C. § 455”, as follows:
“Another factor to be considered in a judge’s decision to disqualify is the contention that the appearance of impartiality is as important, if not more so, than actual impartiality. In 1952, Justice Frankfurter explained his disqualification in a case by stating that ‘justice should reasonably appear to be disinterested as well as be so in fact.’ The Supreme Court gave support to this view in the due process context when in Murchison Justice Black wrote for the Court:
[T]o perform its high function in the best way ‘justice must satisfy the appearance of justice.’
More recently the Court set aside an arbitration award and stated that ‘(a)ny tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias.’”
Likewise, in the Code of Judicial Conduct, prepared by the Special Committee on Standards of Judicial Conduct of the American Bar Association, and adopted by this court by Per Curiam Order of November 5,1973, the Commentary to Canon 2 points out that not only must a judge avoid all impropriety, but he must avoid also any appearance of impropriety.
In each of the three cases in recent years where we held that a trial judge should have disqualified there was a bias and a communication of that bias. Jordon v. State, 274 Ark. 572, 626 S.W.2d 947 (1982); Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978); Farley v. Jester, supra.
The fundamental issue we must consider here is whether the judge, by the act of allowing appellee’s attorney to serve as a pallbearer, gave an appearance of impropriety and communicated an impartiality which might “reasonably be questioned.” See Code of Judicial Conduct Canon 2 (B), Canon 3 (C).
In this State trial judges often know most, if not all, of the attorneys who practice before them. They may have attended the same schools, churches, or belong to the same civic clubs. Most are members of the same bar association. Given these circumstances it probably is not unusual for an attorney to be asked to serve as a pallbearer for the funeral of a member of a judge’s family and similarly judges are often honored to serve as pallbearers for the funeral of a member of an attorney’s family. These friendships within the bench and bar do not, of themselves, cause prejudice. The public and the clients are aware of their mutual acquaintances and friendships. In this particular case appellant’s attorney was also considered for service as a pallbearer. At the hearing on the motion for new trial the trial judge explained to the appellant:
THE COURT: Well, I would like the record to reflect that when the funeral arrangements were made for my father, I’m the one who made them, and because my mother was simply not able to do so, when Mr. Hale at Caruth inquired about pallbearers, I asked him if it were necessary and he said, “Well, it would look better.” I said, “Okay.” Then he said, “Do you have any names?” So, I gave him a list of names and I started to give him Mr. Cole’s [appellant’s attorney] name but I didn’t think I could get him from Malvern over here [to Hot Springs]. But, nevertheless, I just simply gave a list of names and they did the calling. I told him if he needed any additional names to give me a call, and that’s the way it was. I don’t think . . .
Given this background, and the appellant’s awareness of the circumstances, we do not find a communication of partiality which might reasonably be questioned.
Appellant next argues that there is insufficient evidence to support the award of $39,500 compensatory damages. He does not contest the finding of fault. Appellee was shot at point blank range with number four shot from a .20 gauge shotgun. The wound was on the right side and lower portion of the abdomen and required an immediate surgical opening. This exploratory laparotomy was for a determination of the damage and treatment. It required two incisions. The first was between six and seven inches in length and extended above and below the navel. The second was into the wound itself, which was six to eight inches, for extensive debridement of damaged tissue. The wound was then irrigated. The scar was closed with metal skin staples. Multiple pellets remain in the abdominal wall and most will remain there for the life of appellee although, over a period of years, some will work their way out. The doctor who treated appellee testified that appellee’s abdomen would remain tender and anything which rubs against the abdominal wall would bother him. Future plastic surgery or skin grafts might be required for scar revision at a cost of $500 to $2,000. The scar tissue will be subject to sunburn. In addition, he testified there would be a permanent partial disability and a permanent scarring. He did not estimate the disability as a percentage. The appellee testified that he could no longer lift heavy objects and that his abdomen was tender and frequently hurt. It was three to four months before he was able to return to his business and he could then only partially perform his duties. His medical expenses amounted to $2,699.01.
We have said that precedents are of scant value in appeals of this kind. Dyer v. Payne, 246 Ark. 92, 436 S.W.2d 818 (1969). In each case we must study the proof, viewing it most favorably to the appellee, and decide the difficult question of whether the verdict is so great as to shock our consicence or to demonstrate passion or prejudice on the part of the trier of fact. St. Louis Southwestern Ry. Co. v. Pennington, 261 Ark. 650, 679, 553 S.W.2d 436, 451 (1977). Here only one of the elements of damage is measurable with exact certainty. The past medical expense in the amount of $2,699.01 was proven. That was a valid element of damage. Williams v. Gates, 275 Ark. 381, 630 S.W.2d 34(1982). Future medical expenses do not require the same degree of certainty as past medical expenses. Williams, supra. The doctor testified that the appellee might need future medical procedures. The appellee testified he still had pain in the area. This was sufficient for the court to consider this element of damages. Williams, supra. The plaintiff proved a permanent injury as a result of the intentional shooting. This too constitutes a separate element of damages. Adkins v. Kelley, 244 Ark. 199, 424 S.W.2d 373 (1968). The appellee was self-employed and did not prove with any degree of certainty a loss of profits, either past or future. However, he did prove a loss of earning capacity and the trial j udge could validly consider this element of damage. Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983); Woods, Earnings and Earning Capacity as Elements of Damage in Personal Injury Litigation, 18 Ark. L. Rev. 304 (1965). The appellee has suffered disfigurement and has scars. These are elements of damage separate and apart from mere embarrassment and the mental anguish they may cause. Adkins, at 206, 424 S.W.2d at 376, citing Volentine v. Wyatt, 164 Ark. 172, 261 S.W.2d 308 (1924). Finally, the appellee has proven the element of pain, suffering and mental anguish. He is entitled to a recovery for this element in the past as well as that reasonably certain to be experienced in the future. St. Louis Southwestern Ry. Co. v. Pennington, supra. The award is unquestionably liberal, but when we take into account all of the elements of damage we are unable to say that the amount of the award, $39,500, is so great that it shocks the conscience of this Court.
The final point is the most difficult, that is, whether the award of punitive damages was excessive. For many years, our law has been that punitive damages may be imposed when the defendant acted with malice. Barlow v. Lowder, 35 Ark. 492 (1880). Clearly malice was present and punitive damages were proper in this case. There is no fixed standard for the measurement of punitive damages. Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). They constitute a penalty and must be sufficient not only to deter similar conduct on the part of the same tortfeasor but they must be sufficient to deter any others who might engage in similar conduct. Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961). They may amount to somewhat of a windfall to the plaintiff. Dunaway v. Troutt, 232 Ark. 615, 339 S.W.2d 613 (1960). The amount of actual damages sustained by a plaintiff is but one criterion for the assessment of punitive damages. Ray Dodge, Inc., supra. Evidence of the defendant’s financial wealth is a proper element to be considered in the computation of punitive damages. Holmes at 352, 352 S.W.2d 96 at 99. The amount of punitive damages in this case was not based solely upon the actual damages. An affirmance must be based upon the appellant’s wealth. Testimony elicited at trial was that appellant and his wife owned, prior to the tort, as tenants by the entireties 250.3 acres of land having a value of $167,000. Appellant admitted that after the tort action he conveyed his interest to his son for about $10. The appellant admitted that he owned a truck and tractor worth $10,000 to $12,000. He admitted that after the suit was filed he gave $12,000 derived from the sale of his cattle to his son. He admitted that he gave his son another $5,000 but his wife testified that the gift was $9,000. These admissions amount to $10,000 to $12,000 in his own name and $184,000 to $189,000 in his and his wife’s names. Appellant and his wife also owned common stock in the F. W. Woolworth Company and appellant receives $ 190.12 per month from a balance due, in an unknown amount, on a house sale. Appellant, in addition to the above items, receives $918.00 per month in civil service retirement benefits.
We have examined in detail the appellant’s financial worth, and when we consider it in relation to the intentional tort he committed and the need to prevent him or others from repeating such an act, we cannot say that the amount of the award is so great that it shocks the conscience of this Court. Nor are we convinced that the award was motivated by passion or prejudice. In our best judgment the decision of the trial court must be upheld.
Affirmed.
Purtle, J., dissents. | [
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Jack Holt, Jr., Chief Justice.
Newton County filed a motion to have appellee, Don West, removed as administrator of the estate of Sue S. Morak because of a conflict of interest and misadministration, and have him replaced by a special administrator. The Newton County Probate Court responded by appointing a special administrator to appeal a chancery court decision adverse to the estate, but retaining West as administra tor for all other purposes. Newton County appeals the decision and we affirm. Jurisdiction in this court is pursuant to Sup. Ct. R, 29(1)(c).
Dwight Davison was originally appointed as administrator of the estate of decedent, who died leaving no will and no known heirs. Davison resigned as administrator because of conflicts of interest resulting from his claims against the estate, including $324,087.35 in U.S. Savings Bonds and $4,020 in cash contained in a lock box and $11,110 owed on a car decedent had agreed to buy for him in return for services he and his wife had rendered. West was named as successor administrator. The chancery court subsequently found the lock box contents were held jointly with the right of survivorship in Davison and were therefore not the property of the estate.
After the final accounting was approved, which had been prepared by Davison before his resignation, and Davison’s claims against the estate were allowed, Newton County moved to have West removed as administrator. Newton County’s motion alleged that: 1) no notice was given to the county of the proceedings involving the estate although the county claimed to be an interested party as a potential beneficiary under the escheat statutes; 2) West was sharing office space with Davison’s attorney, which presented a conflict of interest since Davison was an adverse party to the estate; 3) West failed to challenge the administrator’s and attorney’s fees listed in the final accounting; 4) West failed to challenge the car payment provided in the final accounting which Davison claimed as a gift from the decedent; and 5) West refused to pursue an appeal of the chancery court judgment awarding Davison the contents of the lock box. West denied all allegations of conflicts of interest and misadministration in his answer.
Arkansas Stat. Ann. § 62-2203 (Repl. 1971) provides;
When the personal representative becomes mentally incompetent, disqualified, unsuitable or incapable of discharging his trust, has mismanaged the estate, failed tp perform any duty imposed by law or by any lawful order of the court, or has ceased to be a resident of the state without filing the authorization of an agent to accept service as provided by Section 70 b (6) [§ 62-2201], then the court may remove him. The court on its own motion may, or on the petition of an interested person shall, order the personal representative to appear and show cause why he should not be removed. The removal of a personal representative after letters have been duly issued to him does not invalidate his official acts performed prior to removal.
A hearing was held on the motion, but no evidence or testimony was produced to provide any basis for removing West. The entire hearing consisted of argument by counsel concerning whether Newton County was an interested party based on the possibility that the estate would escheat to the county. The court stated at the close of the hearing that it was aware that it could remove an administrator on its own motion even if Newton County was not an interested party, but that it could consider that as a factor in its decision.
The hearing is not abstracted and no argument is made now as to whether Newton County is an interested party, so we do not consider that issue on appeal. Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977); Collier v. Hot Springs Savings & Loan Ass’n., 272 Ark. 162, 612 S.W.2d 730 (1981).
It is the burden of appellant to present a record on appeal demonstrating that the probate court’s decision was clearly erroneous, and in the absence of that showing we do not reverse. Bostic v. Bostic Estate, 281 Ark. 167, 662 S.W.2d 815 (1984). We cannot say from the record before us, consisting solely of the pleadings, that the probate court committed error as a matter of law in holding that any alleged conflicts or mismanagement would be cured by appointing a special administrator to pursue the appeal of the Davison judgment against the estate, and in retaining West for all other purposes.
Affirmed.
Turtle, J., not participating. | [
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Robert H. Dudley, Justice.
Appellant, Arthur Dale Taylor, is one of three men jointly charged with the murder of Ivey Jones. In a joint trial, appellant and Randy Hallman were found guilty of first degree murder, and Michael Hallman was found guilty of second degree murder. They appeal separately. This is the second of the three appeals. In this case we affirm the conviction for first degree murder.
Appellant made two inculpatory statements while in custody, and both were allowed into evidence. He contends that the trial court erred in admitting the statements because they were procured by a promise not to arrest his wife if he confessed, and a concurrent threat to arrest his wife if he did not confess. A confession induced by a misleading promise of reward or a threat of harm is not a voluntary statement. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982).
The state bears the burden of proving by a preponderance of the evidence the voluntariness of an in-custodial inculpatory statement. Ark. Stat. Ann. § 43-2105 (Repl. 1977). Any conflict in the testimony of the witnesses is for the trial court to resolve. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981). We do not reverse the trial court’s ruling on voluntariness unless it is clearly erroneous. In making that determination, however, we do make an independent review of the issue based upon the totality of circumstances, with all doubts being resolved in favor of individual rights and safeguards. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). In examining the totality of circumstances, we divide the evidence in two categories: First, the statements of the police officials; and second, the vulnerability of the person in custody. Davis v. State, supra.
At the hearing on the motion to suppress, appellant testified that at first he told the police he did not want to make a statement. He stated that Officer Taylor told him they had a warrant for his wife and could have her arrested in Oklahoma and extradited to Arkansas. He stated that Sheriff Ball made similar statements to him. He testified that he called his wife in Oklahoma and told her that Sheriff Ball had told him that if he didn’t give them a statement they were going to arrest her on a governor’s warrant, and there wasn’t anything he could do except give a statement. He also told her that Sheriff Ball had agreed to let her visit him the next day if she could get there. Appellant further testified that Sheriff Ball talked to his wife on the phone and told her that appellant had agreed to cooperate if they were not going to arrest her. He then told her to come and see appellant the next day. Appellant’s wife verified the conversation and said Sheriff Ball told her she could come and see appellant the next day, and she wouldn’t be arrested because he and appellant had made a deal for appellant to give a statement on the murder charge.
Shirley Taylor, appellant’s sister-in-law, testified that she was with Sharon Taylor at the time of the phone conversation and that she also talked to appellant. He told her that he had made a deal with Sheriff Ball that if they wouldn’t arrest his wife, he would give them a statement.
Appellant additionally testified that the reason he gave the statements was to keep his wife from being arrested and having his children placed in a foster home.
The key part of Officer Taylor’s testimony is abstracted as follows:
I do recall him being hesitant at first. I believe what led him to go ahead and cooperate with us was that we told him we knew about the case, about some of the things that he’d said, indicating his involvement in it. I don’t know what caused him to cooperate and go out to the scene with us. His wife was discussed and I believe that he wanted to talk with his wife and wanted to tell her about his involvement in this prior to giving us a statement and, if I’m not mistaken, he expressed some concern at that time about that she would be arrested if she come over here. I believe he was told that she would not be arrested when she came over here and explained it to her. This was either prior to or during the time that he was talking. I don’t believe there was a deal made that his wife wouldn’t be arrested. I think the only time that that was said about her being arrested was that she wouldn’t be arrested when she come over and he explained it to her or talked to her prior to giving us a statement.
Sheriff Ball’s testimony on the issue is abstracted as follows:
I don’t recall telling Dale Taylor that if he didn’t cooperate that his wife could be arrested and that welfare would pick up his children. He asked us about his wife and I told him his wife could be arrested. I told him we have a warrant for smuggling contraband into the jail but as far as telling him that if he didn’t cooperate and give us a statement, no. I did have a lawful warrant for the arrest of his wife. I told him she would not be arrested that day if she come down there. She would not be arrested that day, whatever day it was that he was visited, which I’m not sure what day it was. This was after he’d already talked to us in reference to this before, but, then, he come back and made another statement. Up until we made this agreement, he had talked to us about it. I didn’t make any deals with him. He said he wanted to talk to his wife before he talked any more about the thing, that he wanted to explain everything to her. I didn’t make any deals, as far as making any deals to make a statement.
The trial court plainly found that the officers made no promise. The finding of fact is as follows:
The issue on Mr. Taylor is did the conversations about his wife and children amount to a promise that he relied upon to give his statements to Trellon Ball and the State Police. I recall the Sheriff’s testimony that the wife and children were not mentioned until after Mr. Taylor had given an oral statement to them that they were getting ready to go out to view the scene where the body was found and that was prior to him making the statement that was tape recorded. Number one, I don’t feel that the Sheriff and the State Police promised him that he could visit his wife in order to get him to cooperate. I think that this conversation came up and it was more of an accommodation to Mr. Taylor than it was a promise, if it was even an accommodation. I think they just felt that since he was cooperating with them that they would go along and cooperate with him; that they didn’t promise him he could see his wife, that that’s the only way he could see his wife, was to cooperate with them. I don’t think that’s what they did. I feel that at most it was an accommodation and they were going to, since he was cooperating with them, let him see his wife without the threat of arrest on the particular occasion. I feel it was not a promise and therefore, he didn’t rely on that. He was already talking to them and he merely continued to talk to them after they told him that they would let his wife come over and visit him.
After an independent review of all the testimony on the subject, we cannot say that the trial court’s ruling was clearly erroneous. Our ruling upon review is buttressed by the fact that appellant was an habitual criminal with five prior convictions, and apparently familiar with criminal procedure. He was not a vulnerable defendant.
Appellant next contends that the evidence seized from a warrantless search of the 1972 blue Dodge automobile was erroneously admitted into evidence. The argument is without merit. By the time the automobile was searched the appellant had sold it to a third person. Fourth Amendment rights are personal rights that may not be asserted vicariously.
Citing Jones v. United States, 362 U.S. 257 (1960), appellant claims “target standing” or standing to complain of the warrantless search of the car of another by virtue of being the one against whom the search was directed. In Rakas v. Illinois, 439 U.S. 128, 135 (1978), the Supreme Court of the United States expressly rejected the target standing theory mentioned in Jones.
At trial, appellant called several witnesses to testify that he was out of state at the time the murder was committed. In rebuttal, the state called a deputy sheriff to testify that appellant stated that he was in the county where the murder was committed on the date it occurred. The deputy started to testify that appellant had confessed to a burglary in the county on that date, but stopped his testimony upon defense counsel’s objection. The state withdrew the question, and the court offered to give a limiting instruction. The appellant refused the offer. The appellant’s motion for mistrial was denied. Appellant now contends that the trial court erred in denying his motion for a mistrial.
The admissibility of the deputy sheriffs testimony in rebuttal is not open to serious question. It was clearly relevant to disprove the alibi. The admissibility of such testimony is uniformly recognized. Williams v. State, 276 Ark. 399, 635 S.W.2d 265 (1982). Since the rebuttal testimony was properly admitted, the trial court did not commit error by refusing to grant a mistrial based on that testimony.
Affirmed.
Purtle, J., not participating. | [
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Per Curiam.
In the motion before us Bobby James Roberts, a prison inmate who is proceeding pro se on appeal, requests permission to file a belated brief. The appeal is from an Order of the circuit court denying Roberts’ motion for transcript. Appellant contends that the delay in submitting his brief occurred because he did not have access to a typewriter, and, as a result, he had to send the brief to the attorney for inmates for typing.
The brief in question was typed when it was originally received, but it was not filed because it did not conform to the rules of this Court. Among the many deficiencies in the brief, it lacked a statement of the case, points for reversal and an abstract of the record. We hold all litigants to the abstracting requirements of Rule 9 of the Rules of the Arkansas Supreme Court and Court of Appeals, including those proceeding pro se. Bryant v. Lockhart, 288 Ark. 302, 705 S.W.2d 9 (1986). Appellant has not corrected the brief, but has merely submitted it again with the motion for permission to file it late.
Since the brief as submitted is grossly deficient, it could not be filed even if appellant had given a good reason for submitting it late. We have said that counsel will be appointed upon proper motion for the pro se appellant in a criminal case who is unable to produce an acceptable pro se brief. Green v. State, 277 Ark. 129, 639 S.W.2d 512 (1982). Appellant has not requested appointment of counsel and remains responsible for filing a suitable brief.
Motion denied.
Purtle, J., not participating.
The content of the brief is of some concern as it pertains to a separate petition for postconviction relief which was also denied by the trial court, rather than the motion for transcript which is the actual subject of the instant appeal. | [
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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).
Earl Caldwell was charged by felony information with the. rape of Linda Skidmore on May 11, 1978. The victim reported to police she had been raped by a man who forced his way into her home at about 1:3.0 a.m. She stated a man had broken through her back door, tied her hands and forced her into the living room. The man held a flashlight in her face most of the time he was in the house. The man forced her to lie down on a couch and proceeded to rape her. The victim called the police at 2 a.m. Officer Herbert of the Little Rock Police, Department went to Ms. Skidmore’s home. He observed that the kitchen door had been kicked open. Ms. Skidmore described her assailant as a white male, approximately 40 years old, and very large. She estimated him to be 6'4", 250 pounds, with reddish brown hair. She stated the man had worn a black cap, red sweater, and black work gloves.
David Garner, a Little Rock police officer, arrived at Ms. Skidmore’s home about 7:30 a.m. where he held a mug shot identification session. The photographs consisted of line-up photos, and Polaroid and regular police photos. Ms. Skidmore positively identified an 8 x 10 line-up photo of Earl Caldwell as a picture of the man who had raped her. Caldwell’s picture was the third photo which Ms. Skidmore viewed.
Later the same day, Ms. Skidmore witnessed a physical line-up at the police station. There were six white males in the line-up, four of whom were FBI agents. Earl Caldwell was also in the line-up. All six men were dressed in blue coveralls. Ms. Skidmore identified Earl Caldwell as the man who had raped her.
Earl Caldwell was arrested for the rape of Ms. Skid-more. Police records reveal he is a 26 year old white male with bushy reddish brown hair. He is 5'10" and weighs 200 pounds.
Caldwell was tried before a jury and found guilty of rape. The jury fixed his sentence at 18 years in the state penitentiary. From this conviction, Caldwell has appealed. The appellant bases his argument for reversal on four separate points.
I
Defendant contends there was error in permitting the State to inquire about the previous conviction of the defend ant and permitting the state to go beyond evidence of the conviction per se. The defendant argues the prosecutor’s questioning and use of the prior conviction was so prejudicial that its probative value was outweighed.
Prior to the trial, defendant filed a Motion in Limine requesting the state be precluded from mentioning his previous charge of rape and his conviction for the crime of sexual abuse.
At the trial the defendant took the stand. His attorney asked him whether he had been convicted of sexual abuse. The scope of cross-examination includes matters developed on direct examination. When the defendant produced five character witnesses the trial court ruled it proper for the prosecutor to cross-examine the witnesses by asking whether their opinions as to the defendant’s reputation would be altered by knowing of the defendant’s prior conviction. This was proper pursuant to Ark. Stat. Ann. § 28-1001, Rule 405(a) (Repl. 1979). The prosecutor inquired of one of the character witnesses whether the fact the defendant and defendant’s wife had testified inconsistently in regard to defendant’s whereabouts on a particular date would have any effect upon the witnesses’ opinion of the defendant’s truthfulness. The prosecutor phrased the question in terms of a hypothetical. Rule 607 of the Arkansas Uniform Rules of Evidence provides a witness’ credibility may be attacked by any party. The scope of the examination is largely within the discretion of the trial court. Dillard v. State, 260 Ark. 743, 543 S.W. 2d 925 (1976). Opinions of character witnesses were the means by which defendant chose to prove his reputation for truthfulness. It is logical to allow the cross-examiner to explore the basis of the witnesses’ opinion, i.e., whether the witness had heard all the facts about the defendant on which to base his opinion. Lowe v. State, 264 Ark. 205, 570 S.W. 2d 253 (1978). We find no abuse in the court’s allowing the prosecutor to cross-examine the character witnesses as to the basis of their opinion.
II
Defendant contends the court erred in commenting upon the weight of the evidence in the presence of the jury.
The court, in the presence of the jury, stated the defense counsel had asked the prosecuting witness a certain question “about six times at least. Go ahead. One more time.”
The court continued: Come on Mr. Leslie, ask the questions. Let’s move this case along.
Mr. Leslie: Your Honor, welí these are important issues.
The Court: I realize how important they are and it’s important to move this case along, Mr. Leslie. We’re having way too much repeating of questions in this case. This jury is not stupid. Now they can hear these answers. Let’s move along.”
Again while arguing the relevance of a witness’ testimony the defense counsel stated the issue was very important.
The Court: Well, it may be to you. It doesn’t seem to be to me, but go ahead. I’ll let you explore it for whatever it’s worth.
The defense counsel made no objection to either judicial comment. Further, there was no error present.
The first alleged improper comment was made because defense counsel was hounding and badgering the witness with repetitious picayune cross examination as the specific height, to the quarter of an inch, of herself and her assailant. The judge asked the defense counsel to move on. The judge was attempting to move the trial forward. Certainly curtailment of repetitious questions is not an abuse of the trial court’s discretion where the witness’ answers are only a reiteration of earlier testimony. Nelson v. State, 257 Ark. 1, 513 S.W. 2d 496 (1974).
The second alleged improper comment was made to end a lengthy debate by counsel over relevance of testimony of a defense witness. It is the trial court’s duty to determine relevancy. Tucker v. State, 264 Ark. 890, 575 S.W. 2d 684 (1979).
The court instructed the jury:
I have not intended by anything I have said or done, or by any questions that I may have asked, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness who testified. If anything that I have done or said has seemed to so indicate, you will disregard it.
We find the court’s remarks not improper.
Ill
The defendant alleges error in permitting in-court identification of him by the victim.
On the same day as the rape, a live line-up was held and a mug shot line-up was conducted. In both instances, the prosecuting witness positively identified the defendant without hesitation or reservation. There are several factors to consider in determining the reliability and admissibility of the identification testimony. The Arkansas Supreme Court has set these factors out: time between the commission of the crime and the identification; attentiveness and opportunity of the victim to view the assailant at the time of the crime; level of certainty at the confrontation; and accuracy of the description of the accused. See Lindsey v. Jackson, 264 Ark. 430, 572 S.W. 2d 145 (1978).
The defendant alleges there is too great a discrepancy between the victim’s description of her assailant’s height, weight and age and the actual size of the assailant. The factors in dispute are very deceptive. Officer Herbert testified as to the description given him by the victim: “. . .he looked very large when he came through the door. She guessed 6'4".” The victim stated she concentrated on the defendant’s face.
We find the defendant has failed to meet his burden of demonstrating that when the totality of the circumstances are considered.there was a “very substantial likelihood of irreparable misidentification.” Pollard v. State, 258 Ark. 512, 514, 522 S.W. 2d 627 (1975).
At no time was the victim unsure of her identification. She testified she did not learn of defendant’s prior rape charges until the day following her positive identification of him.
We find the in-court identifications were based upon observations of the prosecuting witness sufficiently independent of any line-up procedure and the trial court properly admitted this testimony into evidence. The defendant did not object at the trial to the in-court identification.
IV
Defendant alleges error in the court’s prohibiting the expert testimony of a psychologist concerning eye witness identification.
The testimony of a qualified expert in the field of human perception was offered for the purpose of aiding the jury in understanding how human perception works mechanically and what factors influence the perception, and the ability of an individual to later recall that perception. Secondly, the testimony was offered for the purpose of an opinion as to the reliability of the victim’s perception and recall under the circumstances, and what effect outside influence may have had on her recall. The Court refused to allow such proffered testimony. The qualifications of the expert witness are not in issue. Rather the issue is the scope of the testimony of the expert. The actual testimony would be invading the purview of the duties of the jury. The credibility of witnesses and the weight accorded to their testimony is solely within the province of the jury. Smith v. State, 258 Ark. 601, 528 S.W. 2d 389 (1975).
The defendant demanded a trial by a jury of his peers. He received such a jury. Defendant contends he should be permitted to assist the trier of fact with the offered psychologist testimony.
Parties to a trial have the right to take the opinion of experts upon questions involved in cases which can only be answered by those who have expert knowledge of the subject; ...
However, in Hinton v. Stanton, 121 Ark. 626, 183 S.W. 2d 765 (1916), our Supreme Court held “Where the subject matter could be understood by a jury of average intelligence, the court below did not err in excluding expert testimony.”
The science of human perception testimony is new. In the federal case of U.S. v. Fosher, 590 F. 2d 381 (1st Cir. 1979), the trial, court refused proffered expert testimony relating to perception and memory of the eyewitnesses. The Appellate Court upheld the trial court and stated the testimony would not assist the jury in determining the fact in issue and that the jury was fully capable of assessing the eyewitnesses’ ability to perceive and remember, given the help of cross-examination and cautionary instructions, without the aid of an expert; that the expert testimony would raise a substantial danger of unfair prejudice, given the aura of reliability that surrounds scientific evidence; and that the limited probative value of the proof offered was outweighed by its potential for prejudice.
No proffer was made in the present case as to the basis of the knowledge gained by the expert. The field of perception and memory is alleged to be a science. Here in Arkansas, our Supreme Court has consistently held certain scientific analysis testimony inadmissible based upon its unreliable nature, to-wit: polygraph tests, voice stress analyzers. Gardner v. State, 263 Ark. 739, 756, 569 S.W. 2d 74 (1978).
The defendant was in no way harmed by the denial of the expert’s testimony. The defendant was given ample opportunity to cross-examine the victim in order to emphasize the same areas for possible mistakes as the expert would have testified to, without the possible undue influence and prejudice.
The general test regarding the admissibility of expert testimony is whether the jury can receive “appreciable help” from such testimony. 7 Wigmore, Evidence, § .1923 (3d ed., 1940); Jenkins v. U.S., 113 U.S. App. D.C. 300, 307 F. 2d 637 (1962). The balancing of the probative value of the tendered expert testimony evidence against its prejudicial effect is committed to the “broad discretion” of the trial judge and his action will not be disturbed unless manifestly "erroneous. Ray v. Fletcher, 244 Ark. 74, 423 S.W. 2d 865 (1968); Ark-La Gas Co. v. Maxey, 245 Ark. 15, 430 S.W. 2d 566 (1968).
We find the expert testimony was properly excluded as an invasion into the province of the trier of fact.
From the record we find no reversible error.
Affirmed.
Wright, C.J., and Newbern, J., concur. | [
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Conley Byrd, Justice.
Appellants Hubert A. Gilmore, et al, taxpayers of Lawrence County, appeal from the tax adjustments of the Lawrence County Board of equalization on rural farm lands for the year of 1966. For reversal of the circuit court decree, appellants rely upon the following points:
1. The action taken by the Lawrence County Board of Equalization was the assessment of property instead of the equalization of property, and the board was without statutory authority to assess and its actions were therefore void.
2. The Board of Equalization of Lawrence County was without statutory authority for the action taken by it from January, 1966, to July 31st, 1966.
3. The County Clerk of Lawrence County failed to serve as secretary for the Board of Equalization of Lawrence County and did not keep a complete and accurate journal of its proceedings.
4. The Lawrence County Board of Equalization was not constituted according to law.
5. The Board of Equalization failed to follow the statutory procedure in notifying rural real property owners in Lawrence County of the raise of valuation of their property.
The record shows that prior to Aug. 1, 1965, the assessment coordination department, pursuant to Ark. Stat. Ann. § 84-477 (Repl. 1960), notified the proper county officials of Lawrence County that the county’s ratio of total assessed value to market value was below the permissible limits — i.e., the percentage valuation of all the property was 18.05 percent of value while the rural property was assessed at 13.27 percent of value. Being fearful the schools in the county would lose their state turnback funds, the equalization board immediately looked into the matter. After excluding a flat percentage raise of rural values and the calling in of professional appraisers, the board elected to set up a uni'urni standard of valuations based on soil types, which, when applied to each tract of farm land, would result in each tract being assessed at 20% of its value. Since the tract by tract valuation according to soil types could not physically be done during the regular 1965 session it was decided to have a planning session in the early part of 1966.
Pursuant to plan, the equalization board met in late January or early February 1966, and began the tract by tract review of all assessed rural farm lands according to soil type. They fixed monetary values on various types of soil and arrived at the valuations which should be placed on each call by the total number of acres of each soil typo. The number of acres of each type were generally arrived at by use of Soil Conservation maps showing soil types and ASC aerial photographs, together with the board’s knowledge of the different areas in the county. Because of the volume of work involved, the board hired Mrs. Mildred Randolph to do the clerical work and caused her to prepare before Aug. 1, 1966, the notices required by Ark. Stat. Ann. § 84-707, (Repl. 1960). However the notices were not mailed until August 1, 1966, and at intervals thereafter.
The county assessor, independently of the board of equalization, completed an assessment book of all Lawrence County property upon essentially the same valuation used in 1965. This book was delivered in accordance with law to the board at its regular session commencing Aug. 1, 1966.
Point 1. To show that the action of the board was in reality assessment instead of equalization, appellants rely upon Lyman v. Howe, 64 Ark. 436, 42 S.W. 830 (1897). There the assessor’s roll showed that there was no assessment of the lot mentioned. We held that the action of the equalization board in placing a valuation on the property was void since it amounted to an assessment. In doing so, however, we pointed out that once the assessor has placed a valuation thereon then the board of equalization may equalize this valuation with Ihe average valuation of other land, by raising or reducing same as the case may require, so as to fix its true value.
The record here shows that the August 1, 1965, official ratio study of assessed values for Lawrence County, prepared by the Assessment Coordination Department, showed all property was assessed at 18.05% market value, with various types of property being assessed as follows:
Residential _____________________________ 20.00%
Rural --------------------------------------------- 13.27%
Commercial ___________ ....18.62%
Industrial ---------------------------- 20.38%
Personal Property _____________ ..20.92%
Utility Property _________________________________________20.00%
Thus it is seen that the rural lands were not carrying their proportionate share of the assessments according to value and that the burden was cast on someone to bring t-liem into line with other properties in the county as well as in the State at large. That this duty was cast upon the equalization board was recognized in Lyman v. Howe, supra. See also Pulaski County Board of Equalization cases, 49 Ark. 518, 6 S.W. 1 (1887), where we held that county boards of equalization could proceed without complaint first being made against the assessor’s returns and could act on evidence or on their own knowledge for the purpose of equalizing assessments. Consequently we find appellants’ first point to be without merit.
Point 2. In arguing that there was no statutory authority for the action taken by the board between January 1966 and July 31, 1966, appellants point out that tlie decision to send notice of increases in valuation pursuant to Ark. Stat. Ann. § 84-707 was made before the assessor’s report of the 1966 assessments was filed with the board. We agree with appellants that the record does show that the board had reached a decision during its planning stage, and as far back as the regular 1965 session, to raise the valuations of rural property in Lawrence County prior to August 1, 1966. However we must point out that it is not decision making by an equalization board before August 1st that is prohibited, but the raising or lowering of valuations. There is no showing in the record that any valuations were increased until the time the notices thereof were mailed out by the board. We find that the legislature recognized that planning sessions at which tentative decisions could be inade are a, necessity. See Ark. Stat. Ann. § 84-721 (Repl. 1960), which specifically provides that, “Said board shall be vested and charged with all the •powers and duties with which such board is vested and charged when meeting in regular session, . . .”
Point 3. We find nothing in the record to sustain appellants’ contention that the county clerk of Lawrence County failed to serve as secretary for the board and did not keep a complete and accurate journal of each proceedings during its regular session. We know that Ark. Stat. Ann. § 84-703 (Repl. 1960), requiring the county clerk to serve as secretary of the equalization board, was passed in 1929, before the authorization for planning-sessions was passed in 1955 (Ark. Stat. Ann. § 84-721). Under this circumstance we do not interpret Ark. Stat. Ann. § 84-703 as requiring the attendance of the county-clerk at all special planning- sessions of the equalization board. Otherwise it might become impossible for the county clerk to perform the other duties assigned to his office by law.
Point 4. The record shows that Lawrence County was divided into two districts until August 30, 1963, at which lime it -was consolidated. After that date the county equalization board should have been composed of only three members instead of five. Ark. Stat. Ann. § 84-702 (Repl. 1960). However it was stipulated that there had been no action by the county judge, school officials or city officials in Lawrence County to select a new board of equalization after consolidation of the county. Under these circumstances it would appear that the existing five members remained on the board as hold-over members until their successors were duty selected or appointed and qualified, Ark. Stat. Ann. § 84-702. At any rate they were at least de facto officers. See Pennington v. Oliver, 245 Ark. 251, 431. S.W. 2d 843 (1968).
Point 5. Appellants’ last attack on the equalization board is that it failed to literally follow the notice procedure required by Ark. Stat. Ann. § 84-707(2) & (3). Here the record shows that the board in sending out its notices to the landowners only showed the valuation fixed by the board — i.e., the notices did not state the valuation returned by the assessor for the year 1966. While we think the better practice would have been for the notices to have complied with the statutes, under the circumstances we find that appellants are not in a position to allege error because all of them appeared in ample time before the board. Therefore even if it should be held that the notice was defective, any error in connection therewith is harmless as to the appellants.
Affirmed.
Fogleman, J., dissents.
John A. Fogleman, Justice.
I disagree with the result reached by the majority because I do not see how the action of the board of equalization in this case can be taken to be an equalization of assessments made by the county assessor for 1966.
Our system of assessment of property for taxation requires that the primary valuation be made by the as sessor. Pulaski County Equalization Board Cases, 49 Ark. 518, 6 S.W. 1; Lyman v. Howe, 64 Ark. 436, 42 S.W. 830. Then, and only then, is the board of equalization authorized to raise or lower valuations placed on specific properties in order to equalize the valuations. See Pulaski County Equalization Board Cases, supra; Lyman v. Howe, supra.
That is not what took place here. The board of equalization actually made its own valuation of rural real estate without regard to the valuations made by the assessor on this or any other property.
II. L. Lady, a member of the board of equalization, testified that the board met in January or February 1966, after having been advised on August 1, 1965, that a school district in the county would lose state aid if the property valuations for tax purposes in rural areas were not increased; that the board met for a week in August 1965, and established a basis to work on toward a fair assessment and agreed on values for a certain type of land; that it reconvened in January 1966 for the purpose of finishing the job of land reappraisal commenced at the earlier meeting; that the value to be placed on each farm was determined by consideration of its location, land type, soil conservation maps and aerial photographs from the Arkansas Soil Conservation office, the personal knowledge of the board members and a chart they had; that the true value was not established until August 1, 1966; that the board remained in session for about two months and adjourned about April 1,1966; that the valuation on each tract was placed on a card and transferred to a book which was delivered to either the assessor or county clerk on October 1, 1966; that they did not ever look at the assessor’s abstract of assessments required by law to be filed by July 31, 1966, because they were working on their own plan; that the board had completed its “assessment” by July 31, and had caused some of the notices to affected property owners to be prepared, even though the valuations noted on cards had not all been transferred to the book later filed; the raise in assessed values by the board was based on the values placed on the lands in the meetings of February and March 1966; the notices to the landowners did not include the values at which their respective lands had been previously assessed; the book the board prepared and filed was made up' between May 1 and August 1.
The employee who made the book testified that it was prepared in April or May 1966. The notices to landowners were prepared by this employee in July, and she began mailing them in the latter part of July. They were notices that the “assessment appraisals” had been raised. The book prepared by the board of equalization was brought to the tax assessor sometime in August, according to his testimony.
The powers of the county board of equalization are special and limited. It can perform no act unless it is specially authorized so to do in express terms. Lyman v. Howe, 64 Ark. 436, 42 S.W. 830; Pulaski County Equalization Board Cases, 49 Ark. 518, 6 S.W. 1 The board was authorized to meet from the first of August 1966 through the third Monday in November of that year to equalise the assessed value of all property subject to local assessment Ark. Stat. Ann. § 84-706 (Repl. 1960). The reason for the beginning date of August 1 is that this is the final date for delivery of the tax assessment record to the board by the county assessor. Ark. Stat Ann. § 84-463.1 (Repl. 1960). Immediately after the filing of this report, the clerk of the county court is required to lay the repprt before the board. Then, and only then, is the board authorized to equalise assessed valuations made by the assessor. Ark. Stat. Ann. § 84-707 (Repl. 1960). It is true that special planning sessions are authorized by Ark. Stat. Ann. § 84-721 (Repl. 1960). This act, by its own terms, strictly limits the purpose of these meetings to planning. It is not nearly so broad as the limited quotation in the majority opinion would make it appear.
I submit that this board did far more than plan its work of equalization. It met in February and March of 1966 for the purpose of finishing its job of reappraisal of lands. It then determined values to be placed on farms by considering various factors none of which included the value placed on the lands by the assessor in 1966. It could not possibly have considered this valuation because the assessor was not required to complete iiis assessment of lands until July 1. Ark. Stat. Ann. § 84-415 (Repl. 1960). He was not required to complete his assessment of personal property until August 1. Ark. Stat. Ann. § 84-416 (Repl. 1960). His report was also due to be filed on August 1. Consequently, any assessment that he might have made in February or March would not have been final until his report was filed. The board certainly considered that it had made an assessment by the latter part of July when it commenced mailing out notices to landowners. These notices were only called for when the board had raised the valuation of any property. Ark. Stat. Ann. § 84-TOT. They were based upon a book of board valuations completed by June 1. It was impossible for it to have “equalized” assessments because it never saw the assessor’s report. The chairman, when asked if the board ever saw the 1966 report, answered, “Well, we were done with our assessment July 31st in ’66.”
The conclusion that the board of equalization did not equalize valuations, but that it made an assessment of its own, seems inescapable to me. In view of the testimony of the chairman and the board’s clerical employee, called by appellants as hostile witnesses, I do not see how it can possibly be said that the work of the board was “equalization,” or that, prior to August 1, it was only planning. | [
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John A. Fogleman, Justice.
The appellant, Edward L. Prokos, was charged with theft of property in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977). The charges arose out of a transaction in which the appellant allegedly sold the rights to an exclusive Arkansas distributorship of chemical products to Harold Parks for SI5,000.00. The information alleged that the appellant “did unlawfully, feloniously, take unauthorized control over property having a value in excess of $10,-000.00. ...”
A jury trial was held on June 14, 1978. After the prosecution rested its case, the appellant and his attorney, the prosecuting attorney and the judge retired to the judge’s chambers, where the appellant immediately moved for a directed verdict, claiming that there had been no evidence presented which showed that any property had been “taken, stolen, carried away, rolled away” or “driven away” by the appellant. The prosecuting attorney responded to this motion by stating that it was the position of the state that the appellant had taken unauthorized control over the money paid by Parks when the appellant failed to deliver the chemicals and other materials and supplies he was required to deliver by the distributorship agreement. The trial judge stated that the evidence did not demonstrate an unauthorized taking, but that it did establish a case of theft by deception. The appellant objected to any amendment of the charges, stating that he had not come to trial prepared to defend against a charge of theft by deception. The court, after consideration of Ark. Stat. Ann. § 41-2202 (1) (Repl. 1977), which details the consolidation of theft offenses under the Criminal Code, overruled the appellant’s objection and allowed the charge to be amended to allege theft by deception, thereby conforming to the proof. The court then denied the appellant’s motion for a continuance, the trial continued and the appellant presented his defense. He was found guilty of theft of property and sentenced to fifteen years’ imprisonment in the Department of Correction and a fine of $15,-000.00.
We cannot agree with the appellant’s contention that the trial judge erred in allowing the information to be amended to conform to the proof, but do agree that a continuance should have been granted, and therefore reverse the judgment and remand the cause.
Ark. Stat. Ann. § 43-1024 (Repl. 1977) is a codification of the Arkansas case law dealing with the amendment of a criminal indictment as expressed in Dolphus v. State, 256 Ark. 248, 506 S.W. 2d 538; Silas v. State, 232 Ark. 248, 337 S.W. 2d 644, cert. den. 365 U.S. 821, 81 S. Ct. 705, 5 L. Ed. 2d 698 (1961) and Murray v. State, 249 Ark. 887, 462 S.W. 2d 438. The statute reads as follows:.
The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged. All amendments and bills or particulars shall be noted of record.
Ark. Stat. Ann. § 41-2202 (1), the section considered by the trial judge before he allowed the information to be amended, provides:
Consolidation of Theft Offenses. Conduct denominated theft in this Chapter [§§ 41-2201 — 41-2208] constitutes a single offense embracing the separate offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and other similar offenses. A criminal charge of theft may be supported by evidence that it was committed in any manner that would be theft under this Chapter, notwithstanding the specification of a different manner in the indictment or information, subject only to the power of the court to ensure a fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.
It is clear that this case presents the exact situation for which § 41-2202 (1) was designed. Both “theft by taking unauthorized control” [§ 41-2203 (1) (a)] and “theft by deception” [§ 41-2203 (1) (b)] are contained within the chapter setting out the theft offenses [§§ 41-2201 — 41-2208], Amending the charge to theft by deception changed neither the nature nor the degree of the crime charged. Both prior to and after the amendment, the appellant was charged with the theft of property having a value of $2,500.00 or more, a Class B felony. The only variation between the initial charge and the charge as amended was the alleged manner of the commission of the theft. Under the provisions of § 41-2202 (1), it is not necessary that the evidence establish the theft was committed in the manner alleged in the indictment or informa tion, but rather that the evidence establish the act was committed in any manner which would constitute theft of property under §§ 41-2201 through 41-2208. Since a conviction for theft of property having a value of $2,500.00 or more would have been proper even if the charges had not been amended, it was not error for the trial court to allow the charges to be amended to conform to the proof.
A motion for continuance shall be granted only upon a showing of good cause and the trial judge shall take into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case, Rule 27.3, Rules of Criminal Procedure. The granting or denial of a motion for continuance is within the discretion of the trial judge and this court will not reverse the trial judge unless there has been an abuse of that discretion. Golden v. State, 265 Ark. 99, 576 S.W. 2d 955; Cotton v. State, 265 Ark. 375, 578 S.W. 2d 235; Holland v. State, 260 Ark. 617, 542 S.W. 2d 761. An appellant bears the burden of demonstrating an abuse of discretion in the denial of a motion for a continuance. Freeman v. State, 258 Ark. 496, 527 S.W. 2d 623; Perez v. State, 236 Ark. 921, 370 S.W. 2d 613. We find that the appellant in this case has met this burden.
The following is the in-chambers colloquy among the judge, the prosecuting attorney and the appellant’s attorney on the matter:
THE COURT:
* * *
Of course, I offered to continue it for you and nobody seemed too anxious to do that, but that is neither here nor there. 1 think I can let the information be amended to conform to the proof and be safe.
MR. GIBSON [Appellant’s attorney]:
We did ask for a continuance.
THE COURT:
You did ask for a continuance, and I was ready to grant it for you and thought you should have it.
MR. GIBSON:
We need witnesses now that we don’t have.
THE COURT:
Well, they may reverse me, but I’ll let it go on.
MR. WILLIAMS [Prosecuting attorney]:
Could we go on the record, and — Mr. Gibson, have I complied completely and fully with your motion for discovery in this case?
MR. GIBSON:
Oh, you have; you did.
THE COURT:
I think that is enough to put you on notice of what the charge is. You’re too smart of a lawyer not to know it.
MR. GIBSON:
I thought he was going to stick with his information.
THE COURT:
I think you should have had a continuance, but I am going to overrule you and let it be amended to conform to the proof, which will be theft by deception, over the defendant’s strenuous objection and exceptions.
The appellant’s attorney indicated to the trial judge that additional witnesses, not essential to the defense against the anticipated charge of theft by taking unauthorized control over the property of another, would be required in a defense against the amended charge of theft by deception. Although § 41-2202 (1) establishes liberal rules in regard to conforming an information or indictment to the proof presented in a prosecution for a theft offense, the same subsection also limits the application of these rules in cases where a defendant’s right to a fair trial is possibly endangered by a lack of fair notice or by surprise, the remedy being the trial judge’s power to grant a continuance or other relief. It should be noted that the statement that there was full compliance with a mo tion for discovery does not show that its nature and extent were sufficient to apprise appellant that he was being charged with theft by deception rather than by taking unauthorized control of property of Parks.
We are not unaware of prior decisions of this court in which it was held that it was not an abuse of discretion to deny a motion for a continuance which was made after the prosecution had amended the information or indictment. See Scoggins v. State, 258 Ark. 749, 528 S.W. 2d 641 and Payne v. State, 224 Ark. 309, 272 S.W. 2d 829. However, in both of those cases, the amendment only entailed substituting a different date of the alleged commission of the offense charged. We find that the amendment of the information in this case, although it did not change the nature or the degree of the offense charged, was of great enough significance that the conduct of appellant’s defense was prejudiced by lack of fair notice and the denial of the appellant’s motion for a continuance was an abuse of the trial court’s discretion, requiring that the judgment be reversed and the case remanded for a new trial.
We agree. Harris, C.J., and Holt and Purtle, JJ. | [
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Ernie E. Wright, Chief Judge.
The appellant was charged with a felony for delivery of a controlled substance, heroin, in violation of Ark. Stat. Ann. § 82-2617. At the end of trial before the court, without a jury, he was found guilty as charged and punishment fixed at 10 years imprisonment with 7 years suspended and 5 of those years on probation.
For the first point of reversal appellant contends the court erred in admitting in evidence an envelope and contents which allegedly was the substance purchased from appellant by a narcotics detective, Mr. Hanna, of the Little Rock Police Department. Mr. Hanna testified in substance that he asked appellant on May 23, 1978 if he could supply him with some heroin. Appellant said he could supply him with two $50.00 packages. The appellant left and returned in a few minutes with two tinfoil packets containing a brown powder and the witness paid appellant $100.00. Upon returning to the office the witness “paramedically” [sic] sealed the substance in an envelope, and placed the date and his initials thereon. He recognized the envelope offered as State’s Exhibit 1 as the same envelope. The envelope now contains a tinfoil packet and a glass bottle containing a brown powder substance.
Mr. Morris, a Federal narcotics officer, testified in substance that he saw Officer Hanna initial and seal the envelope and after also initialing it the witness mailed it the next day by registered mail, return receipt requested, to the Drug Enforcement Administration Analytical Laboratory, Miami, Florida, and the receipt was later returned; that he later received the envelope in a sealed condition by registered mail on March 9, 1979; that when returned, the envelope contained one foil packet and one bottle containing a brown powder substance; and that the envelope appeared substantially in the same condition as when mailed. The witness brought the envelope marked State’s Exhibit 1 to court.
Mr. Kisser, a chemist for the Drug Enforcement Administration testified in substance that he recognized State’s Exhibit 1 and that his name arid date appeared on the bottom of the envelope; that when he received the envelope on May 30, 1978 it was sealed and the seal did not appear to be disturbed; that it contained two tinfoil packets containing brown powder; he cut the packet open, removed arid analyzed the substance; that when he finished he placed the powder in a bottle and put it and the remaining, exhibit back into the envelope and put his seal thereon and heat sealed the envelope. That the powder consists of 1.0 percent heroin hydrochloride and other drugs. The witness returned the envelope to the evidence custodian and the envelope appears still intact. When mail comes into the office at Miami the evidence custodian generally takes charge of it, delivers the paper work to the witness’ supervisor, the supervisor assigns the paper work to the witness and the witness obtains the evidence from the evidence custodian; the witness is the second one that takes custody of the evidence. The evidence custodian is Larry Robins, and he is not present in court.
Counsel for appellant moved to strike the evidence and contended a proper foundation had not been laid for receiving the evidence and that the witnesses were unable to testify as to a complete chain of custody. Appellant also moved for a directed verdict of acquittal.
From the evidence the trial judge was warranted in concluding there was little likelihood the exhibit had been tampered with and absent evidence indicating tampering the ruling of the trial judge should not be reversed. There was a complete absence of any evidence suggesting or indicating that the evidence had been tampered with! Minor uncertainties in the chain of custody of physical evidence do not render the evidence inadmissible as a matter of law. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978); Wickliffe v. State, 258 Ark. 544, 527 S.W. 2d 640 (1975).
After the judge had found the appellant guilty as charged, sentencing was passed for ten days and appellant and the State.were afforded opportunity to place whátever background information might be helpful in fixing the sentence. At sentencing, the judge announced he had received letters from the College Station Progressive League, the Urban League of Greater Little Rock, Leadership Roundtable Association, the E.O.A. and the Arkansas Black Caucus on behalf of appellant and that oh the other hand he had received a memorandum from the Little Rock Police Department and one. from the Department of. Justice, both indicating files in their office showing information from confidential sources linking the appellant to distribution of heroin. The judge offered to show these reports to counsel for appellant and announced he was going to take into consideration the favorable reports on behalf of appellant, and stated he recognized the information from the Police Department and the Department of Justice as hearsay. No objection was made at sentencing to the consideration of the background information in connection with sentencing.
Several days after sentencing appellant filed a motion for a new trial and alleged error in admitting the testimony of the chemist and State’s Exhibit 1, and error in the court considering background information furnished the trial judge by the Police Department and the Department of Justice incident to sentencing. The motion was overruled and on appeal appellant contends the trial court erred in failing to grant a new trial.
Ark. Stat. Ann. § 41-804 authorizes the trial court to order a pre-sentence investigation before imposing sentence and provides that the investigation may be conducted by a pre-sentence officer or other persons designated by the court and that the investigation should include an analysis of the circumstances surrounding the commission of the offense, the defendant’s history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation, personal habits and any other matters that the investigator deems relevant to the court or the court directs to be included. See also Rule 36.4.
If the background information had been placed before the trial court before the finding of guilty we would agree with appellant it would be serious error. However, as is indicated by § 41-804, it is proper for the court to consider numerous relevant factors incident to the fixing of punishment, and the record does not demonstrate appellant’s constitutional rights are infringed by the background information placed before the court in connection with sentencing. It is pointed out in A.B.A. Sentencing Alternatives and Procedure 206, (approved Draft 1971) that a pre-sentence investigation report should be available to the judge before sentencing.
Before pronouncing the sentence, the court informed appellant, as required by Ark. Stat. Ann. § 41-804 (4), of the content of the information presented by the State. The appellant made no objection and did not request an opportunity to controvert the information. As is noted in the comment under § 41-804, the defendant does not have the right to confront the witnesses against him on matters incident to sentencing. See Nolan v. State, 265 Ark. 764, 580 S.W. 2d 957 (1979).
Finding no reversible error, we affirm. | [
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J. Fred Jones, Justice.
Olin S. Payte sued Allied Telephone Company in the Pike County Circuit Court for property damages growing out of an automobile collision. Olin H Payte died during the pendency of the action and Home Insurance Company, who had paid the collision loss to Payte under tin insurance contract it had with him, was substituted as party plaintiff under -its subrogation agreement with Payte. A jury trial resulted in a judgment for Allied. Home Insurance has appealed and relies on the following points for reversal :
“That the Court erred in allowing the defendant to testify to self-serving, hearsay statements made by the driver of plaintiff’s motor vehicle, a bailee.
That the Court erred in refusing to give the plaintiff’s instruction on the Arkansas law pertaining to the imputation of negligence from bailee to bailor.”
The recorded facts are as follows: Johnny Payte was the son of Olin Payte, and on March 9,1967, between 9:30 and 10:00 a.m., Johnny Payte was driving an automobile registered in his father’s name north on a county road in Pike County and Johnny’s wife was riding as a passenger in the front seat with him. As he drove over a “rise” in the highway, a truck belonging to appellee and being driven by its employee, Richard Ray, was traveling south meeting the Payte automobile. According to the uncontradicted testimony of the investigating officer, the Payte vehicle skidded fifty-four feet and the appellee’s vehicle skidded ten foot, and the two vehicles collided with the point of impact being about one foot and four inches east of the center line, and on Payte’s side of the road. The traveled portion of the gravel road was sixteen feet and six inches wide at this point. The Payte automobile was damaged in the amount of $925.00. The police officer testified that appellee’s truck was over the center line of the highway and that from his investigation at the scene of the collision, he was of the opinion that the Payte automobile was traveling too fast for the conditions of the highway.
Mrs. Payte testified that as she and her husband came over a rise in the highway, the appellee’s vehicle was in the center of the road “a little on our'side.” She testified that her husband was driving about thirty miles per hour. Mrs. Payte was asked and answered questions as follows:
“Q. Where were you going at the time of the collision?
A. We liad just gotten off from school, and we were going to my mother’s — to my mother-in-law’s house.
* # #
C- Who was the registered owner of this car at the time of the collision?
A. Olin S. Payte.
Q. Who is he?
A. He’s my father-in-law.
Q. Were you on an errand for him?
A. No, sir. .
Q. You were on your own personal business?
A. Yes, sir.”
The above questions and answers by Mrs. Payte are the only evidence in the record pertaining .to the agency relationship between the owner and the driver of the automobile. If the pronoun “you” in the questions was used or understood in the singular, it shed no light at all on the agency relationship between the driver and the owner. If the question was asked and understood in the plural, the answers could have been interpreted to say that Mrs. Payte and her husband, who was driving an automobile registered in his father’s name, had just gotten off from school at 9:30 in the morning and had started to Mrs. Payte’s mother-in-law’s house on their own personal business and not on an errand for her husband’s father. Be that as it may, the whole case was tried on the theory that Johnny Payte was a permissive bailee of the automobile and there was no evidence to the contrary.
One subpoena was issued for Trooper Rex Martin. Johnny Payte and Mavis Payte. It was served on Mr. Martin and Mrs. Payte, but was not served on Johnny Payte and he did not testify at the trial. Mr. Ray, the driver of appellee’s truck, was permitted to testify as to statements made to him by Johnny Pa}de following the collision. This testimony was offered and admitted as admissions against interest and it was objected to because Johnny Payte was not a party to the lawsuit and as being self-serving if he were. What the objection actually amounted to was that it was inadmissible, as hearsay evidence. The testimony of Mr. Ray as to what Johnny Payte said to him and the objections made to it are copied from the record as follows:
“Q. T should have asked you one other question. Mr. Ray, since the accident on more than [one] occasion have you had conversation with Mr. Payte, the driver of that automobile?
mr. osterloh:
I am going to object to any conversation he had with Mr. Payte, the driver. He isn’t a party to this lawsuit and has never been.
mr. steel;
He was the driver of the car, and any admissions made against his interest, I think, are certainly admissible.
mr. osterloh;
And they are self-serving, Your Honor.
the court;
Overruled. You may answer.
Q. (Con’d, by Mr. Steel) You may answer the question that I am about to ask — what conver sation you had with him as to whose fault it was.
A. "Well, right after the accident we went to the hospital, and I saw him in the hospital. He came over and asked how I was, if I was -doing all right, and he said something about it -looked like we were at the right place at the wrong time.
Q. Now, since that time, were you working along the road, and did he stop and talk to you?
A. Yes, sir.
Q. What did he tell you then?
A. I don’t remember the exact words, but it was just like, in so many words he said it wa.s something that couldn’t be helped.
mr. osterloh:
I object, Your Honor.
the court:
Yes, sir. You will have to repeat the conversation as you remember it, not what you think it was.
Q. (Con’d, by Mr. Steel) Do. you remember the exact words he used, Mr. Bay?
A. He said, ‘It looks like it was something that couldn’t be helped.’ ”
"We are of the opinion that the trial court should not have admitted the statement as an admission against interest in the absence of evidence that Johnny Payte had actual, or implied, authority to make such admission. The record reflects, however, that Johnny Payte was a bailee of the automobile at the time of the collision and as such would have been liable to the owner for any damage to the vehicle caused by his own negligence.
In determining the admissibility of statements into evidence as exceptions to the hearsay rule, there is a distinction between declarations against interest and admissions against interest. In vol. 2, Ark. L. Rev., pages 26-52 (1947-48) appears an article by Dr. Robert A. Leflar entitled “Theory of Evidential Admissibility — Statements Made Out of Court,” and under subheading “Declarations Against Interest” at page 41, Dr. Leñar states:
“Another exception dating from the early days of the Hearsay Rule is that which admits declarations made against the interest of the declarant. It is well settled that to be admissible under this exception the statement must have been against the declarant’s interest when he made it.”
And under subheading “Admissions by a Party or One in Privity” Dr. Leñar says:
“When it is shown that a party has made a statement inconsistent with the position taken by bim in the present suit, the statement so made is admissible in evidence as an ‘admission.’ It is substantive evidence, both in civil and criminal cases, of the facts admitted in the statement.”
And then on page 43 Dr. Leñar continues:
“It is easy to confuse the admission rule with that admitting declarations against interest. Many extrajudicial statements might be admitted in evidence equally under either rule. For example, a statement made b}7 a person to or through whom a party traces his present interest is admissible against that party as the admission of one in privity with him, and the same statement would frequently bo a declaration against the interest of the one who made it. [citing Rotan v. Nichols, 22 Ark. 244 (1860); Peters v. Priest, 134 Ark. 161, 203 S.W. 1042 (1919); Jefferson v. Pouter, 150 Ark. 55, 233 S.W. 804 (1921)]. There are differences, however. A declaration against the interest of the one who made it is always admissible, regardless of who he is, but for a statement to be admissible as an admission it must have been made by a party to the litigation or his authorized agent, or by one having identity or privity of interest in the matter in respect to which the statement was made. [citing 4 Wigmore, Evidence, secs. 1076-87 (3rd ed., 1940)]. And for a statement to be admissible as a declaration against interest, the declarant must be dead or at least unavailable, but admissions by parties, their agents and privies are admissible in evidence even though the declarant be physically available, even to the extent of being personally in the courtroom, as is often the case. Likewise, the admissions of an agent, made within the scope of his authority to speak for his principal, are admissible against the principal, even though they are not declarations against the personal interest of the declarant himself. They are admissible as admissions, but not as declarations against interest.” (Emphasis supplied.)
See also Wilkins v. Enterprise TV, Inc., 231 Ark. 958, 333 S.W. 2d 718.
'We conclude, therefore, in view of young Payte’s potential liability, that any statements made by him absolving another party of fault for the damage inflicted, could not be said to be self-serving and such statements were admissible as declarations against interest if Johnny Payte was not available as a -witness. The burden was on the appellee to show that Payte was not available, but a specific objection to the introduction of testimony because of failure to lay the proper foundation must be made before it can be said that admission of the testimony was error. Smith v. State, 243 Ark. 12, 418 S.W. 2d 627. The reason for this rule is that otherwise the .'court is not apprised of the deficiency and the adverse party is not given an opportunity to supply it. "We conclude, therefore, that the admission of the declarations of Johnny Payte did not constitute error.
The appellant’s proposed instruction does not appear in the record as such, but in chambers the appellant’s attorney made the following statement:
“My proposed instruction reads that ‘any negligence on the part of the defendant entitles the plaintiff to recover one-hundred per cent of whatever ''damages he suffered.’ Now, the Judge has refused to give this, and I would like to object because this leaves me without an instruction as to the law of bailments insofar as negligence is concerned — the imputation of negligence from bailee to bailor, and the law of Arkansas states that the negligence is not imputable.”
The trial court did not err in refusing to give this instruction. Negligence is not compensable in damages unless the damage is caused by the negligence, or the negligence is a proximate cause of the damage. The trial court did give instruction No. 4, as follows:
“In this case, the Home Insurance Company claims damages from Allied Telephone Company, and has the burden of proving each of these essential propositions:
First, that it has sustained damages. Second, that Richard Ray was negligent. And third, that such negligence was a proximate cause of the damage to the Payte vehicle.
If you find from the evidence in this ease that each of these propositions has been proved, then your verdict should be for the Home Insurance Company; but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for Allied Telephone Company.”
The judgment is affirmed.
Byrd, J., dissents. | [
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Ernie E. Wright, Chief Judge.
The Appellant, Donald G. Mize, was convicted by a jury of battery in the first degree in violation of Ark. Stat. Ann. § 41-1601 and sentenced to five years imprisonment. From the judgment of conviction he brings this appeal urging for reversal, that the court erred in denying appellant a hearing upon his motion to suppress the in-court identification of appellant.
Trial date had been set for June 26, 1979. Ón June 21, 1979 appellant filed a motion to suppress testimony by State’s witnesses identifying the appellant contending the identification resulted from a “police show-up” while the defendant was in custody in a police car. The motion alleged that such “show-up” was improperly conducted and improperly suggestive so as to taint the in-court identification of appellant.
Counsel for appellant first presented the motion to the court on the day of trial. The State objected to the motion as being untimely filed only five days prior to trial date contrary to Criminal Rule 16.2 (b), and argued the prosecuting witness could identify the accused without regard to having seen the accused in custody in the police car. Appellant did not contend he had been pointed out to the prosecuting witness when the witness viewed and identified the appellant in the police car shortly after the shooting. The court overruled the motion without an evidentiary hearing. Appellant’s abstract does not indicate any objection to the ruling of the court.
The prosecuting witness, a young black man, testified that while he was sitting in his stalled car on a store parking lot the appellant and another man, Ricky Jackson, drove up and after appellant had made some remarks to the prosecuting witness told the prosecuting witness he had to get out of town; appellant and his companion drove away and soon thereafter a black friend of the witness, Mr. Gaston, drove up and indicated he would stay with the witness until his mother could pick him up; the witness got in the friend’s truck and appellant and his companion pulled up and appellant had a shotgun sticking out the car window; Gaston pulled his truck over in front of the store and the prosecuting witness and Gaston got out to go in the store; at that time they were both struck with shots from a shotgun blast; the prosecuting witness was struck in the legs, back, elbow and arm with about 50 shots; Gaston was also struck; they went to a doctor’s office where they received medical attention and then ‘ ‘went outside to identify the occupants of the car’ ’.
At that point appellant renewed his motion to suppress any in-court identification. Out of the presence of the jury, the court instructed the prosecuting witness not to go into the fact that the witness made an out-of-court identification, and denied the motion to suppress. The witness testified the appellant, Mize, was the one who fired the shotgun.
The appellant took the stand and testified he and his companion, Jackson, the driver of the car, had been drinking and rabbit shooting; that they pulled up where the prosecut ing witness was parked and asked if he was having trouble; that the witness called him a name; appellant told him he had better get out of town and appellant and his companion left; appellant and his companion drove back in about thirty minutes and the prosecuting witness called him a name; appellant then put the barrel of his gun out the window and told the witness and his companion they had better get out of town; appellant and his companion started into the store and appellant shot them in a fit of anger. There was no evidence of threats or violence by the prosecuting witness.
For reversal, appellant relies on Sims v. State, 258 Ark. 940, 530 S.W. 2d 182 (1975), and contends the view of the appellant by the prosecuting witness, while appellant was in custody in a police car very soon after the crime, constituted a lineup procedure within the meaning of the Sims case, and the identification of appellant while in custody in the police car was improperly suggestive. It is contended the procedure tainted the in-court identification of appellant by the prosecuting witness, and for this reason the in-court identification should be suppressed. While there appears to be valid reason to believe Criminal Procedure Rule 16.2 requiring motions to suppress evidence to be filed not less than ten days before trial was intended to apply to any kind of evidence and not limited to things seized in a search, we find it unnecessary to resolve this question.
The Sims case involved an in-court identification of the accused by the prosecuting witness after the witness had viewed the accused in a post indictment lineup, at a time when the accused had counsel. His counsel was not notified of the lineup and was not present. In the present case the appellant had not been indicted and had no counsel. It was important as a practical law enforcement procedure for the police to make a judgment as to whether appellant was the person to be held. The view of appellant in the police car occurred very shortly after the assault and there is no contention by appellant that he was pointed out to the prosecuting witness by any one ás the person making the assault. Also, the assault took place in daylight and the prosecuting witness, having been encountered by the appellant shortly prior to the final assault, had ample opportunity to view appellant, thus having a basis to reliably identify the appellant without reference to the in-custody view of appellant. The in-custody view here complained of served primarily to enable the police to determine they had custody of the person who had committed the assault.
The circumstances of the present case are controlled by Lindsey and Jackson v. State, 264 Ark. 430, 572 S.W. 2d 145 (1978), rather than by Sims. In Lindsey appellants objected to their in-court identification by the robbery victim on the ground they had been subjected to an out-of-court identification which did not involve a proper lineup. Appellants contended the out-of-court identification, which consisted of a view of the appellants promptly after the robbery, was suggestive and impermissible. The court held that a confrontation between a victim and suspect that takes place at a show-up rather than a lineup does not, without more, constitute a violation of constitutional rights. The court cited Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243 (1977) which held that reliability is the linchpin in determining the admissibility of identification testimony based on confrontation and that if from the totality of the circumstances the confrontation did not give rise to a very substantial likehood of irreparable misidentification, the in-court identification is properly admitted.
We hold from the totality of circumstances here there is no reasonable basis for contending the view of appellant by the prosecuting witness very soon after the assault and while the appellant was in police custody created a substantial likelihood of irreparable misidentification.
In this case, even if it be said it was error for the court to refuse the appellant’s motion for an evidentiary hearing on the motion to suppress an in-court identification of the appellant, reversal would not be required.
In Motes v. U.S., 178 U.S. 458, 20 S. Ct. 993 (1899), a written out of court statement of a witness was admitted in evidence against appellant over objection. On appeal the court said the improper admission of the evidence violated appellant’s constitutional rights to be confronted with wit nesses against him. However, the court held, as the appellant took the stand and gave testimony of his actions which were clearly a violation of the law involved, the jury had conclusive proof of appellant’s guilt, and the improper admission of the incompetent evidence was of no consequence to appellant, and not prejudicial. This case was a forerunner of the modern rule set out in Schneble v. Florida, 405 U.S. 427, 92 S. Ct. 1056 (1972). There, even though the defendant did not take the stand, the court held the admission of certain incompetent evidence against the accused violated his constitutional rights, but that the error was harmless because the overwhelming properly admitted evidence of guilt was such that the mind of an average jury would not háve found the State’s case significantly less persuasive, if the court had excluded the incompetent evidence.
We affirm. | [
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Frank Holt, Justice.
Appellant was granted a divorce from appellee on the grounds of general indignities. Ark. Stat. Ann. § 34-1211 (Repl. 1962). She was awarded her statutory interests in the appellee’s real and personal property. Additionally, she is to receive one-half of the proceeds from the sale of their jointly owned home (approximately $55,000 equity) and a condominium ($18,000 cost with $14,000 mortgage); one-half in kind of municipal bonds valued at $12,000; and one-third of appellant’s contributions to a pension and profit sharing plan of the Arkansas Psychiatric Clinic “provided such contributions are vested.” The parties were directed to divide the home furnishings. The chancellor refused to award appellant any alimony due to the fact that she was gainfully employed and entitled to draw income to the extent of $5,000 annually from the corpus of an insurance trust. Appellant contends the trial court’s disallowance of alimony was an abuse of discretion.
When awarding alimony, the chancellor should give proper consideration to (1) the financial condition of the parties such as the husband’s ability to pay, the wife’s financial needs, and the wife’s ability to support herself; (2) the station in life of the parties, that is, the manner and style of living to which the wife has become accustomed; and (3) the character of the parties bearing on the cause of the separation. Evans v. Evans, 263 Ark. 291, 564 S.W. 2d 505 (1978); Hurley v. Hurley, 255 Ark. 68, 498 S.W. 2d 887 (1973); and Lewis v. Lewis, 202 Ark. 740, 151 S.W. 2d 998 (1941).
Appellant, 44 years old, was married to the appellee for over 25 years during which time she worked to assist the appellee financially in medical school and to rear their two now adult sons. She has minimal secretarial and bookkeeping skills and is currently attending college to secure a business degree. Appellant cannot draw income or invade the corpus of appellee’s life insurance trust until his death. Consequently, in addition to the assets appellant derived from her share of their property, as previously discussed, her sole expectation of income at present is the $490 net monthly take-home pay from her job as a secretary. After detailing her expenses, she testified she would need a minimum of. $500 per month alimony to supplement her income.
Appellee is a successful psychiatrist with a substantial income of $2,000 net monthly. For the past two years, he has been paying the rent and utilities on a home, as well as all expenses for food and miscellaneous household items, for himself and another woman. Suffice it to say that appellee’s present earning capacity, education, and ability to provide appellant with monetary support are far superior to those of the appellant. We hold appellant is entitled to alimony and an award of $300 per month is reasonable in the circumstances.
Appellee argues that Ark. Stat. Ann. § 34-1211 (Repl. 1962) is gender based and therefore Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), which held such statutes unconstitutional, should be applied here. We cannot consider this argument since it is raised for the First time on appeal. Gross v. Gross, 266 Ark. 186, 585 S.W. 2d 14 (1979); Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979); and Williams v. Edmondson, 257 Ark. 837, 250 S.W. 2d 260 (1975).
Reversed and remanded for the entry of a decree consistent with this opinion.
We agree: Harris, C.J., and Byrd and Purtle, JJ. | [
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James H. Pilkinton, Judge.
Appellant Dennis Earl Cagle and another person were charged by information with the offense of Criminal Attempt to Commit Burglary and Theft, on or about the 12th day of December, 1978, by cutting the screen and partially opening a window of a house belonging to Harry McAdams, Jr., in Newport, Arkansas. Appellant requested, and the court granted, a separate trial.
Cagle also filed a motion to suppress any statements taken from him while in custody. Pursuant to Jackson v. Denno, 378 U.S. 368 (1964), an in-chambers hearing was held on that motion before appellant’s trial began. The court denied appellant’s motion to suppress.
A trial by jury was held. In addition to other testimony, the State introduced into evidence a confession made by the defendant three days after his arrest. The jury returned a verdict finding Cagle guilty as charged. He was sentenced to six years imprisonment. He appeals contending that the trial court erred in admitting his confession into evidence.
On the afternoon of December 12, 1978, Roger Brand returned to his home, looked across the street at the McAdams house and noticed two people trying the windows and door of the house. Brand then saw the two running through the McAdams back yard, and then through a graveyard beyond. Moments later, Brand and McAdams confronted Cagle and Ronnie Gates in the graveyard. Police officers arrived and arrested the two suspects. The officers then returned to the McAdams house where they discovered the screens on one of the windows had been cut, the window was partially opened, and there were some puncture holes on the insulation surrounding the window. Appellant Cagle had a large “Buck” knife in his possession at the time of his1 arrest.
At the Denno hearing, the State had the burden of showing that appellant’s confession was made after a voluntary, knowing and intelligent waiver of the right to remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The proof offered by the State at the hearing revealed that appellant was arrested on December 12, 1978. Immediately upon his arrest, Officer Jerry Long read to appellant his constitutional rights from a so-called Miranda Warning Card, which the officers kept for that purpose. When the officer and appellant arrived at the station house at approximately 5:20 p.m. on the same day, Officer Long advised appellant of his constitutional rights a second time. Appellant declined to make any statement at that.particular time. Appellant was placed in jail, and three days later Officer William Cardwell removed appellant from his cell and took him to the officer’s office. Cardwell advised appellant of his rights, and then asked if he wished to make a statement. Appellant said that he did, and the statement was taped. After the tape was replayed for appellant, a transcript of the statement was typed. Officers Long and Cardwell were present when the statement was made. Chief Wilson was in an adjoining office.
The issue on appeal is whether the trial court properly found, based on the totality of the circumstances, that appellant’s confession was voluntary and hence admissible into evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974).
In the case before us appellant’s confession was given without counsel. Therefore, the proper test is whether appellant was effectively warned of his rights and knowingly and willingly decided to waive them. United States v. Harden, 480 F. 2d 649 (8th Cir. 1973). The trial court found that appellant did so waive his rights. He was under no disability. Appellant testified at trial that his rights were explained to him before the confession was given, and the transcript of the confession bears this out. There was no contention at trial, nor is it argued on appeal, that appellant was not advised of his rights or that he failed to understand these rights álthough appellant did not sign a written waiver form. However desirable it is to obtain a written waiver of rights, failure to do so does not invalidate a voluntary confession where there is no contention that the rights were not explained or understood.
Relying on his own testimony at trial, appellant contends that the Newport Police officials used psychological coercion to wring the confession from him. Whether such psychological coercion exists is determined by weighing all the circumstances surrounding the confession to resolve whether the circumstances of pressure overbears the power of resistance of the accused. Matthews v. State, 261 Ark. 532, 549 S.W. 2d 492 (1977).
The evidence presented revealed that appellant was 18 years old and had completed the eighth grade with passing marks. A review of appellant’s testimony at the Denno hearing and at the trial gives no indication that appellant suffered from any mental disability, and none is claimed. The testimony shows that appellant is of average intelligence and has a good command of the English language. The record also reveals that appellant was no stranger to the criminal justice system, having been convicted of a prior felony offense. It is clear to us that appellant had the mental capacity and experience to understand, appreciate and intelligently waive his constitutional rights. But appellant contends his will was overborne by alleged attacks on his accomplice and threats to file a possession of marijuana charge against him, and by an alleged threat that the officers would see that he received a twenty year sentence on the present charge. Officers Caldwell and Wilson specifically denied that any such threats were made or that coercion was present. Mr. Ralph Black, who was appellant’s probation officer, testified that no such threats occurred while he was present. The confession itself reveals that no threats or promises were made.
The testimony of appellant that the officers used coercion is not entitled to more weight than the testimony of the officers that they did not. Smith v. State, 256 Ark. 67, 505 S.W. 2d 504 (1974). See also Decker v. State, 255 Ark. 138, 499 S.W. 2d 612 (1973). In such cases the trial court determines the credibility of the witnesses. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978).
Custody alone is not sufficient to render invalid an otherwise voluntary confession. The record shows that on the third day of his incarceration, appellant was advised of his Miranda rights a third time, and was confronted with a .45 caliber pistol which had been stolen. At that time appellant voluntarily made the confession which was subsequently admitted into evidence at his trial. The trial court found that he was not acting under fear or coercion.
We have considered the nature of the questioning, the length of interrogation, the manner in which the warnings were given, and all testimony, factors, and circumstances which would have any bearing on appellant’s allegation of deception, coercion or inducement. In other words, we have carefully reviewed the total circumstances surrounding the confession of appellant and have concluded that the trial court’s finding of voluntariness is not against the preponderance of the evidence. Degler v. State, supra.
Appellant also contends that all material witnesses to the confession were not present at. the Denno hearing. The evidence presented at this hearing reveals there were four material witnesses to appellant’s confession. These were Jerry Long, William Cardwell, Gary Wilson and Ralph Black. Except for the appellant, no other persons were present during the taking of the confession or immediately prior thereto. However, appellant says that another person was a material witness. He testified that two days before making his confession, an unidentified jailer “jumped on” Ronnie Gates, his accomplice. Appellant further testified that Officer Gary Wilson threatened appellant after the unidentified jailer’s attack on Gates. As already noted, Wilson was presented and testified at th& Denno hearing and denied that any threats were made.
In Bushong v. State, 267 Ark. 113, 589 S.W. 2d 559 (1979), the Arkansas Supreme Court said:
[Tjhere must be some connection between the witness and the alleged acts of coercion or an opportunity to observe the alleged coercion.
There is insufficient evidence in this record to connect the alleged acts of the unidentified jailer to the confession which occurred two days later. We are persuaded that all material witnesses to appellant’s confession were present at the Denno hearing as required by law. Bushong v. State, supra.
Finding no error, the judgment of the circuit court is affirmed.
Howard, Newbern and Hays, JJ., dissent. | [
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Frank Holt, Justice.
This is a divorce action. In her complaint, appellant seeks a divorce upon the grounds of indignities and asks that she be awarded all of her statutory rights, including her interest in the appellee’s property. The appellee’s answer is in the nature of a general denial, except for tlie marriage and separation. He avers that ho does not want a divorce and offers reconciliation.
The chancellor temporarily awarded the use of certain property' to the appellant and temporary alimony in the sum of $30 per week, together with costs and attorney’s fees. Upon trial the chancellor denied appellant a divorce and awarded her $200 per month separate maintenance.
About a month later both parties petitioned the court for modification of its decree. Appellee contended there that the court erred in awarding separate maintenance inasmuch as the court had refused appellant a divorce. In-response, appellant urged that the court had erred in denying her petition for divorce and, further, in not awarding to her the statutory property rights to which she was entitled, including alimony and attorney’s fees. After a hearing, the court modified its previous decree by dismissing the order requiring the appellee to pay $200 per mouth separate maintenance; denied an attorney’s fee, and found all issues of fact and law for the appellee. From that modified decree, this appeal follows.
For reversal appellant contends that the finding of the chancellor, in refusing to award her an absolute divorce together with her statutory rights, is against the preponderance of the evidence.
The parties were first married in July of 1966. Appellant secured a divorce, by agreement of the parties, on March 10, 1967. That night they discussed reconciliation and about a month later they remarried. About five months thereafter, the present separation occurred. Appellant testified that during this brief period of their remarriage appellee subjected her to extreme physical abuse on two occasions and constantly harassed and subjected her to such mental cruelty that her marital situation became so intolerable she could no longer live with him. According to her, he had an ungovernable temper and at times would call her vile names. • It appears that his conduct toward her vacillated somewhat, since she testified that he was generous with her and “he could be the sweetest, finest person that ever was one time and everything would be fine. .Then he could get mad at someone downtown and coiné in and take it out on me.” Appellant’s eighteen-year-old daughter by a former marriage corroborated her testimony about one instance of physical abuse and their arguments.
The appellee denied that he had physically abused the appellant on the two occasions about which she testified. He characterized these acts as merely being spankings which resulted from arguments that she provoked by her opprobrious language with reference to his daughter by a former marriage. According to him, the only other time he ever struck her with his hand was when she bit him. He admitted that when she used bad language about him or his family, it resulted in an exchange of uncomplimentary words. He testified that the basic cause of most of their problems during both brief marriages was her inability to manage and live within their finances and, further, that their quarreling was sporadic during their five-month reT marriage. Appellee expressed a desire to avoid a divorce in the hope of reconciliation and testified that he had made conciliatory efforts. Several witnesses testified on behalf of the appellee to the effect that publicly they appeared to be congenial.
Chancery cases are reviewed de novo on appeal and a chancellor’s decree will not be reversed on a question of disputed facts unless the finding is against the preponderance of the evidence. Greer v. Greer, 193 Ark. 301, 99 S.W. 2d 248 (1936). A compelling reason for this well settled rule is the fact that the chancellor is in a better position to evaluate the testimony of the witnesses since he hears them and observes their demeanor and interest in the case. Dennis v. Dennis, 239 Ark. 384, 389 S.W. 2d 631 (1965). In the case at bar, the evidence is in conflict that the alleged indignities were being continuously and persistently pursued with the purpose and effect of causing an enduring alieniation and estrangement which is a requisite in this type of action. Gibson v. Gibson, 234 Ark. 954, 356 S.W. 2d 728 (1962); Pryor v. Pryor, 151 Ark. 150, 235 S.W. 419 (1921). The absence of congeniality and consequent quarrels resulting therefrom are insufficient to constitute that cruelty or those indignities required by our statute to justify a divorce. Bell v. Bell, 105 Ark. 194, 150 S.W. 1031 (1912). In the case at bar, we are unable to say that the finding of the chancellor refusing appellant a divorce and her attendant statutory rights is against the preponderance of the evidence.
Appellant asserts the chancellor erred in denying her maintenance and support. Before appellant first married appellee, she was employed at $85 per week. At the time of rendition of the modified decree, she was employed and receiving as take-home pay $53 per week. She now lives with her mother and her thirteen-year-old daughter by her former marriage. She had been receiving $200 per month maintenance from her first husband for their two children, and now receives $100 per month for the younger child. It appears that the older daughter is now married.
Appellee placed the bulk of his property in trust before their remarriage. He said this was with her knowledge. According to appellant, the appellee now has approximately $500 per mouth personal income left after meeting his financial obligations, including $400 per month which he pays to a former wife and their two children as alimony and maintenance.
The chancellor has broad powers and wide discretion in fixing or refusing support payments and we do not disturb his action unless there is an abuse of discretion. Carty v. Carty, 222 Ark. 183, 258 S.W. 2d 43 (1953). In each case, proper consideration must be given to the respective financial conditions of the parties and many other circumstances, including their mutual conduct. Upchurch v. Upchurch, 196 Ark. 324, 117 S.W. 2d 339 (1938); Lewis v. Lewis, 202 Ark. 740, 151 S.W. 2d 998 (1941). In the case at bar, we are unable to say that the chancellor abused his broad discretionary powers in refusing to continue an award of maintenance and support which appellant had received for approximately six months. Further, we find no abuse of discretion in disallowing additional attorney’s fees.
The decree is affirmed. | [
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Conley Byrd, Justice.
Appellee Orville Morehead was awarded a $165,000 judgment upon a jury verdict against appellant Bell Transportation Company for injuries sustained in connection with the use of Bell’s tandem truck and lowboy. Since the asserted liability against Bell must rest upon the doctrine of respondeat superior, Bell contends that it was entitled to a directed verdict on the ground that its regular driver Sebastian Carrior and its supervisor J. C. Melton were borrowed servants in the employ of Houston Contracting Co. at the time of Morehead’s injury.
The record shows that Houston Contracting Co. was involved in a “change out” of engines at Tennessee Gas Transmission Co. compressor stations. The engines had been removed from their foundations, sent back to the factory to be reworked and then brought back to be reinstalled in the compressor stations. The engines were moved in halves. Bach half weighed about 80 tons. Bell is engaged in heavy hauling in Louisiana and 21 other states. It operates under an Interstate Commerce Commission permit. Bor deliveries, Bell charges the regular tariff prescribed by ICC regulations. The bill of lading signed by Houston called for Bell to, “furnish one tandem truck and one 16 wheel lowboy and one supervisor to work as instructed”. The truck and lowboy was driven by one Sebastian Carrior to a railroad siding, accompanied by J. C. Melton, Bell’s supervisor, in another vehicle. There, the Houston Contracting Co. moved the half motor from a flat car to the lowboy, which Sebastian Carrior drove to the compressor station. In the course of attempting to back the lowboy up a ramp to the platform at the compressor station onto which the half motor was to be unloaded, the drive shaft on Bell’s truck broke, making it impossible to move the rig under its own power. A cable from a winch truck was tied to the lowboy through a block and tackle arrangement and the lowboy was winched to wiihiu a few feet of the platform. The winch truck was operated by Danny Williams, an employee of Houston, and signals were given him by J. E. Morehead, Houston’s assistant superintendent. Signals and orders to the truck driver, Carrior, were relayed by J. C. Melton, Bell’s supervisor. When the truck had been winched to within 4 or 5 feet of the platform, it was discovered that the cable was fouling against the platform causing a loss of power. In order to accomplish a higher hitch on the lowboy it was necessary to secure slack on the cable. The winch truck operator begin io roll off cable from his drum and appellee Morehead was instructed to pick up the cable to gather up the slack. While appellee Morehead was so engaged, Sebastian Carrior permitted the truck to roll forward. The cable in Morehead’s hands was immediately stretched taut, flinging him against the platform and inflicting the injuries complained of.
Sebastian Carrior had been Bell’s employee for 15 years. He testified that during the winching operation, he sat under the wheel of the truck to steer and brake when necessary, that the flagman who signaled him to put on his brakes was Mr. Melton, Bell’s supervisor and his immediate superior. He said that when he left Bell’s office on the morning of the accident, he knew where he was going. They told him to go to Port Sulphur and pick up^ the engine at the railroad siding and move it to the building where it could be unloaded into the building. Mr. Melton went along as his supervisor to see that he hauled it in the proper manner.
Mr. J. C. Melton testified that after the truck would not operate under its own power, Mr. Edwards, Houston’s job superintendent, Mr. J. E. Morehead, Houston’s assistant job superintendent and appellee’s brother, Houston’s millwright foreman and he were all talking and trying to figure out some means of winching the lowboy back into the building. The winch truck and a D8 tractor were hooked up to the trailer. He was standing' at the left front door of the truck flagging it. Mr. J. E. Morehead was standing on the platform where he could see him for purposes of signalling. He was taking orders from Mr. Jesse Morehead. Appellee More-head was hurt when they let the truck roll ahead approximately 3 or 4 feet on a signal from Jesse Morehead. He said that at all times after the driveshaft broke he was taking orders from Jesse Morehead. On cross examination Mr. Melton stated that the tandem truck and lowboy could cost as much as $50,000 and that he was sent along as supervisor to help protect that equipment. They couldn’t turn special equipment like that over to just anybody to use as they might see fit. He actually supervised the transporting of the equipment from the railroad track to the pumping station. That was his and Bell’s business there and he hadn’t worked for anybody but Bell Transportation Company. Mr. Bill Edwards was superintendent for Houston Contractors and J. E. Morehead was assistant superintendent. He was taking his orders from Mr. J. E. Morehead.
Mr. William R. Edwards, a witness for Bell, testified that J. E. Morehead was directing the movement of the trucks and the entire operation from the platform outside the building; that the Bell truck was under the direction of Houston Contracting Co. from the time it arrived until it left and that he represented Houston and directed the truck in its use. That Mr. Melton who was with Bell was under Ms supervision and control and Houston was responsible for moving the engines and installing them. Later, however, Mr. Edwards testified that he told the truck driver and supervisor where to go with the truck to get the machinery and where to take the machinery. That Bell had the people, experience and equipment to do the job and that Mr. Melton was in charge of the truck — he was there to see that the truck was operated in the proper manner. The charge for the use of the truck was on an hourly basis in. accordance with the ICC tariff. He didn’t attempt to give the track driver or Mr. Melton, the supervisor, any orders or tell them anything about the details of the work. Mr. J. E. Morehead was supervising the operation, but he didn’t attempt to give these fellows any orders. They were hired to come down there and move that engine from the rail point to the compressor station. They never did get it back to the platform where it could be unloaded before appellee Morehead was injured.
Since this accident occurred in Louisiana, we must apply our procedural law and the substantive law of Louisiana. Of course under our procedural law, we need only look to see if there was sufficient evidence to go to the jury. The substantive law of Louisiana on the borrowed servant doctrine is extensively set forth in Benoit v. Hunt Tool Co., 219 La. 380, 53 So. 2d 137 (1951).
The Supreme Court of Louisiana in the Benoit case discussed the usual tests for determining the borrowed servant doctrine — i.e., “whose business” test and the “control” test. In applying these tests the court there recognized that if there was a division of control between the employer lending the servant and the employer borrowing the servant, the borrowed servant doctrine could not apply. From the testimony of Bell’s witnesses set out above, we find that there was substantial evidence from which the jury could have found that Bell’s employees were conducting themselves in pursuance of their master’s business and under their master’s control — more particularly that control as to the protective custody of their master’s equipment. Bell takes the position that the only way the winching operation could be done properly was for someone to direct and control all phases of the operation and that the evidence conclusively shows that this control was under the supervision of Houston Contracting’ Co. This argument fails to take into consideration the distinction between the authoritative direction and control involved in the master-servant relationship and that direction with which one necessarily cooperates in executing a common plan for a larger undertaking. To the same effect see The Standard Oil Co. v. Anderson 212 U.S. 215, 29 S. Ct. 252, 53 L. Ed. 480 (1909).
Bell’s second point for reversal is that the trial court erred in giving its instruction No. 11 (AMI 702). This instruction reads as follows:
“I have used the term ‘scope of employment’ in these instructions.
“An employee is acting within the scope of his employment if he is engaged in the transaction of business which has been assigned to him by his employer or if he is doing anything which may reasonably be said to have been contemplated as a part of his employment and is in furtherance of his employer’s interests”.
Bell’s third point for reversal is that the court erred in giving its instruction No. 12 (AMI 703). This instruction reads:
“The vehicle driven by Sebastian Carrior was owned by Bell Transportation Company, and Sebastian Carrior was a regular employee of Bell Transportation Company. You may consider these facts along with any other evidence in the case in deciding whether Sebastian Carrior was acting as an employee of Bell Transportation Company and within the scope of his employment at the time of the occurrence”.
In its brief Bell argues these two instructions together. It contends that each was abstract, improper and highly prejudicial and that taken together the two instructions prevented Bell from having the borrowed servant defense considered fairly by the jury. To fortify its position Boll points out that the trial court upon Bell’s request instructed the jury as follows:
“As the general employer of J. C. Melton and Sebastian Carrior, Bell Transportation Company has the burden of proving by a preponderance of the evidence that, as to the particular work in question, the relationship of master and. servant between Bell Transportation Company and its employees had been suspended and that a new relationship of master and servant had been created between them and Houston Contracting Company, which gave Houston Contracting Company the right to control them, with right of control being relinquished by Bell Transportation4' Company. ’ ’
We find Bell’s position to be without merit. Appellee Morehead’s theory of the lawsuit at all times was that J. C. Melton and Sebastian Carrior were employees of Bell and at all times acting within the scope of their employment for Bell. Thus, even under Bell’s defense on borrowed servant, Morehead was still entitled to have his theory of the lawsuit explained to the jury together with the indicia or guides by which the jury could determine whether Melton and Carrior were acting within the scope of their employment for Bell or had suspended the same for a new relationship with Houston. We find nothing in the instructions that is abstract or conflicting with the borrowed servant doctrine.
Bell’s last argument is that the verdict is excessive. The record shows that Morehead had an annual earning capacity in excess of $14,000 per year with a life expectancy of 24.41 years from date of trial. Some 17 months had elapsed from injury to the date of trial. He was in the hospital a total of 34 days, was bedfast for more than 60 days and in addition to a permanent back injury, suffered a hernia, for which he underwent an operation. His medical expenses to the date of trial were $2,742. There was testimony that Morehead in the future would have to undergo a back operation resulting in additional medical expenses of $2,400. Bell’s doctor, who examined Morehead for purposes of trial, gave Morehead a 35% disability to the body as a whole and iii addition theorized that in terms of occupational disability, Morehead could well be described as totally disabled.
We believe that there was substantial evidence from which the jury could find that appellee Morehead was totally and permanently disabled from an injury which would cause him additional pain in the future. Upon the record we are unwilling to say that the verdict in the amount of $165,000 was excessive.
Affirmed. | [
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Marian F. Penix, Judge.
The Appeal Tribunal modified an Agency determination and denied the claimant unemployment benefits under the provisions of Section 5(b)(2) of the Arkansas Employment Security Law. On appeal to the Board of R.eview the Appeal Tribunal’s, decision was affirmed but was modified from disqualification under 5(b)(1) to show disqualification within the meaning of Section 5 (b)(2). Claimant appeals to this court.
The claimant worked for General Telephone Company in Jacksonville, Arkansas, from June 1976 until her discharge in April 1979. The reason given for discharge by the employer was the claimant had attempted to take certain charges off her personal telephone bills. The employer’s representative testified the claimant had been warned about the same conduct previously. The claimant had submitted a number of adjustment forms to her employer in an attempt to take off her phone bill, certain installation and long distance charges. The claimant contended all these were submitted in good faith because she contended there had been malfunctions in the equipment which caused the charges to appear on her personal bill. The employer’s representative stated the employer’s investigation of the charges clearly indicated the claimant was attempting to defraud the employer by trying to avoid the payment of legitimate charges.
Section 5(b)(1) of the Arkansas Employment Security Law provides for disqualification “If he is discharged from his last work for misconduct in connection with the work.” Section 5(b)(2) provides for disqualification “If he is discharged from his last work for misconduct in connection with the work on account of dishonesty, drinking on the job
The claimant alleges she was denied due process when she was not properly notified of the charges upon which the Appeals Referee’s decision was based. The claimant asserts she was denied proper notice upon which to prepare her defense. We find no absence of procedural due process. Both disqualifications are couched in terms of “misconduct at work”. Section 5(b)(2) specifies the misconduct at work involves dishonesty. There is no evidence the claimant was surprised at the specific misconduct in connection with her work. The evidence presented before the Appeals Referee was the same as that presented before the Agency. Therefore we find the claimant was in no way harmed by the modification made by the Appeals Referee.
The testimony of the claimant and the testimony of the employer’s representative were somewhat contradictory as to the claimant’s intent to defraud the employer. The credibility of witnesses is solely within the province of the trier of facts. The Tribunal made a finding the preponderance of the evidence shows the claimant wrongfully submitted the adjustment forms with the intent to defraud her employer. There is substantial evidence to support the decision.
We find no reason to disturb the finding of the Appeals Tribunal as upheld by the Board of Review.
Affirmed.
Howard and Newbern, JJ., dissent.
Hays, J., not participating. | [
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Frank IIont, Justice.
The appellant was charged with the crime of first degree rape. The jury found him guilty of assault with intent to rape and assessed a penalty of 21 years in the penitentiary. From the judgment on this verdict comes this appeal. For reversal appellant contends, through court.appointed counsel, that the evidence is insufficient to establish that the appellant was capable of forming the necessary specific intent to commit the alleged offense.
The victim was a seven-year old child who was attending a drive-in theater with her mother and other relatives. The offense occurred about midnight. Earlier in the evening, or about 7:30 pan., the appellant, who is nineteen years of age, accompanied by his uncle and two other boys, drove approximately fifteen miles from Fort Smith wdiere they engaged in a two hour beer-drinking and glue-sniffing party. The appellant drank two or three six-packs of malt liquor and sniffed twro or three tubes of glue. En route back to Fort Smith the appellant consumed about one-half of a pint bottle of whiskey.
“When the appellant and his party returned to Fort Smith, they went to a local drive-in theater. Because of lack of funds, the appellant and two in his party gained entrance by climbing over the fence while the driver of the vehicle proceeded to pay for his admission. All of them met at the automobile for a short time. The appellant observed some children playing- on the movie playground. He then gave* them some firecrackers and rode on the merry-go-round with them. The appellant picked up the seven-year old victim and forcefully carried her behind the movie screen. Her small brother fought him and then sought the assistance of the adults in his party. Appellant was found by the victim’s mother and another adult on top of the child with one hand around the child’s throat and the other hand in a position “somewhere down below” the waistline. The child’s dress was pulled up. The appellant was forcefully pulled off the child. His attempt to escape b}r climbing a nearby fence was prevented and he was taken into custody. There was evidence of bruises on the child’s neck, right arm and leg and a bleeding laceration of her female organs.
Appellant testified that his memory was “spotty” and he could not remember the assault. There was evidence adduced by him that he appeared to be something worse than “dog-drunk” and “out of Ms head”. A psychiatrist testified in his behalf that, in his opinion, the appellant was in a state of limited awareness and his intoxication reduced and diminished appellant’s level of consciousness. The psychiatrist further stated that the appellant might be aware of his intentions and yet be unaware of the results to him; that glue-sniffing can produce amnesia, hallucinations and delusions; and that it produced a short period of intoxication lasting from fifteen minutes to an hour.
The appellant as a witness recalled his acts immediately preceding the commission of the crime; the method of gaining entrance into the theatre; giving the children firecrackers and playing with them on the merry-go-round; remembered having the struggling little girl in his arms and her small brother asking him to release her, which request he thought he complied with; recalled trying to effect his escape by climbing the fence; and remembered that his escape was thwarted and someone set-on him to prevent a further attempt to escape. There was evidence offered by the state that the appellant, although he had been drinking, was not intoxicated and appeared rational and responsible for his acts when he was observed and questioned a short time after being apprehended.
Where an offense can only be committed by doing a particular thing with a specific intent it may be shown that at the time the offense was committed the accused was so intoxicated that he could not have entertained the intent necessary to constitute the crime. Crowning v. State, 91 Ark. 503, 121 S.W. 735 (1909). However, the determination as to whether a defendant is intoxicated to the extent of being incapable of forming the required specific intent to commit a crime is solely within the province of the jury. Murry v. State, 209 Ark. 1062; 194 S.W. 2d 182 (1946); Hankins v. State, 206 Ark. 881; 178 S.W. 2d 56 (1944); Casat v. State, 40 Ark. 511 (1883). In Murry v. State, supra, we said:
“ ... It is a matter of common knowledge that many of the most atrocious and deliberate crimes are committed by persons more or less under the influence of intoxicants, indeed in many instances, the intoxicant is used to supply the necessary fortitude to commit the criminal act, and if appellant was not intoxicated to the extent of being incapable of having the specific intent to kill, the fact that he was intoxicated, but in a less degree, is no defense...”
In the case at bar, the evidence was in conflict as to the appellant’s being capable of forming the required specific intent. There is substantial evidence to support the verdict. Therefore, we find no merit in appellant’s contention that he was incapable of formulating the required specific intent.
The .appellant next asserts for reversal that the court erred in refusing an instruction on child molesting. Ark. Stat. Ann. § 41-1124 (Repl. 1964). This is a misdemeanor. The statute provides for punishment by a fine not exceeding $500.00 or six months imprisonment or both for “Every person who annoys or molests any child * * V’ We cannot agree with the appellant.The court gave instructions on first, second and third degree rape and assault with intent to rape. In addition, the court instructed tlie jury on unlawful fondling of a child. Ark. Stat. Ann. § 41-1128 (Repl. 1964). This statute provides for a penalty of not less than one nor more than five years for any person who fondles a child with lascivious intent. This latter instruction was as favorable to the appellant as he was entitled to demand. Even then the jury refused to apply this statute with its lesser penalty. No error was committed. See Talley v. State, 236 Ark. 908, 370 S.W. 2d 604 (1963). Further, the trial court is not required to give an abstract instruction. An instruction must be germane to the factual issues before the refusal of the trial court to give an instruction can be assigned as error. French v. State, 231 Ark. 677, 331 S.W. 2d 863 (1960). See, also, Stevens v. State, 231 Ark. 734; 332 S.W. 2d 482 (1960). As we have already indicated the evidence is sufficient to support the verdict of assault with intent to rape.
In the ease at bar, we perceive no prejudice to the appellant by the refusal of the trial court to give the requested instruction on child molesting since the instructions given fully declared the law.
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Frank Holt, Justice.
Appellant brought this cause of action, seeking to apply a reciprocal tax credit against the Arkansas Compensating (use) Tax which was paid under protest.
Appellant is an Oklahoma corporation authorized to do business in Arkansas and engaged in inter-state construction business. Appellant purchased at Memphis, Tennessee, a large mobile crane used in erecting steel on nmlti-storv buildings. Appellant took delivery in Memphis and then had the crane brought directly to appellant’s construction job site in Little Bock. The machine arrived in Little Bock in the first week of March, 1968, and after six weeks’ use there it was shipped to Oklahoma. On March 6, 1968, appellant paid the State of Oklahoma a use tax of $2,700.00, which was measured by two per cent of the sale price of the crane. On April 12, 1968, appellee assessed an Arkansas Compensating (use) Tax in the amount of $4,050.00, representing three per cent of the purchase price, against appellant for its use of the crane in Arkansas. Appellant paid the Arkansas tax under protest and filed this suit to recover the alleged overpayment of $2,700.00. The chancellor found that appellant was not entitled to relief and dismissed appellant’s complaint for want of equity. This appeal followed.
Appellant admits that there was sufficient use of the machinery in Arkansas to justify the levy of the Arkansas us.e tax. It is appellant’s position that the lower court erred in failing to give appellant credit for the use tax paid to Oklahoma. Therefore, appellant has paid $2,700.00 in excess of its tax liability to the State of Arkansas.
Ark. Stat. Ann. § 84-3130 (1967 Supp.) provides that all tangible personal property procured from with out the state for use, storage or consumption by a contractor in performance of a contract in this state shall be subject to a compensating (use) tax of three per cent of the purchase price. The third paragraph of this section provides:
“The provisions of this act [§§ 84-3129 — 84-3134] shall not apply in respect to the use or consumption or storage of tangible personal property as defined in this Act for use or consumption in this State upon which a like tax equal to or greater than the amount imposed by this Act has been paid in this State upon which a like tax equal to or greater than the amount imposed by this Act has been paid in another state, the proof of payment of such tax to be according to rules, and regulations made by the Commissioner of Bevenues. If the amount of tax paid in another state is not at least equal to or greater than the amount of tax imposed by Act 487 [§§ 84-3101 — 84-3128] of 1949, as amended, then the contractor shall pay to the Commissioner an amount sufficient to make the tax paid in the other state and this State equal to the total amount of tax due under Arkansas law. No credit shall be given under this section for taxes paid on such property in another state if that state does not grant credit for taxes paid on similar tangible personal property in this State.”
Okla. Stat. Ann. Title 68 § 1404(e), in pertinent parts, provides:
“If any article of tangible personal property has already been subjected to a tax, by this or any other state, in respect to its sale or use, in an amount less than the tax imposed by this Article, the provisions of this Article shall apply to it by a rate measured by the difference only between the rate herein provided and the rate by which the, previous tax upon the sale or use was computed. Provided, that no credit shall be- given for taxes paid in an other state, if that state does not grant like credit for taxes paid in Oklahoma.”
Appellant asserts that under § 84-3130 any person who pays a use tax of less than three per cent to any other state is only required to pay an amount which would equal three per cent of the purchase price of the article taxed, if the state in which the tax is paid provides for a similar credit. Reciprocal credit exists in the case at bar.
Appellee contends that Oklahoma was without jurisdiction to impose the collection of a use tax from appellant, because the crane had never come within the boundaries of Oklahoma, nor had any connection with Oklahoma until it was moved there in May, 1968. Appellee submits that since there was no basis for an Oklahoma use tax, appellant’s voluntary payment to the State of Oklahoma was not a “tax” for which appellant could claim a credit.
We agree with appellee. According to the plain moauing of the applicable Oklahoma statute, the Oklahoma use tax is a tax upon the storing, using or consuming of tangible personal property within the State of Oklahoma. Okla. Stat. Ann. Title 68 § 1402, in pertinenl parts, provides:
“There is hereby levied and there shall be paid by every person storing, using or otherwise consuming, within this State, tangible personal property purchased or brought into this State, an excise tax on the storage, use or other consumption in this State of such property at the rate of two per cent (2%) of the purchase price of such property;...”
The evidence is undisputed that appellant voluntarily paid the Oklahoma use tax some six weeks before the equipment entered Oklahoma. An officer of appellant corporation testified that the machine arrived in Little Rock approximately March 6, which is the day appellant paid the Oklahoma tax as evidenced by a Oklahoma Tax Commission Excise Tax Receipt made out to appellant. He further iestified that appellant made no use of the crane prior to its arrival in Little Rock and that it was moved from Little Rock to Oklahoma City and thereafter to Denver, Colorado.
hi our view the $2,700.00 which appellant paid to the State of Oklahoma was not a “tax” as contemplated by the reciprocal credit provision of Ark. Stat. Ann. § 84-3330 (3967 Snpp.), and appellant is not entitled to a credit in that amount against the Arkansas Compensating (use) tax assessed and collected from appellant.
Affirmed. | [
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John A. Fogleman, Justice.
The trial court held fhal appellants were liable for oil well drilling supplies furnished by appellee for the drilling of a well by one A. A. Morgan. The judgment was based upon a finding' of the trial court, sitting without a jury, that appellants were joint venturers with Morgan. Appellants’ point for reversal is their assertion of error in the finding as to the joint venture. The question for our determination is whether there was substantial evidence to support this finding. We hold that there Avas.
Parties to the proceedings in the loAver court Avho are not parties to this appeal, knoAvn as the WAG- group, AA'ere the joint oAvners of the working interests in an oil and gas lease covering the lands on which the well was drilled. This group engaged one Beverly Johnson to drill the well on a farmout agreement. Beverly Johnson arranged a sub-farmout agreement with one A. A. Morgan, under which the obligation to actually drill the well devolved upon Morgan. The terms of this subfarmout agreement are not clearly shown. Morgan owned the necessary drilling equipment hut did not have the capital necessary to drill the well to casing point, to perform the necessary tests or to complete the well, if the tests were such as to justify completion.
Beverly Johnson remembered little of his agreement with either the WAG group or with Morgan. He had some recollection of a letter from the WAG- group with reference to the terms, but stated that he had turned this letter over to people in Marshall, Texas, because lie had given the deal to them. He could only remember that the WAG group had retained an overriding royalty. Johnson did not have a drilling rig and made the farmout agreement on the hope that he could get someone to drill the well for a lesser interest in the oil lease than the WAG group would assign to him under the farmout agreement. The lease was not to be assigned by the WAG group until the well was drilled and completed. Johnson was unable to contract for the drilling of the well upon terms which would permit him to retain any interest. He recalled having arranged with A. Á. Morgan to drill the well for a fixed amount of money plus an interest in the lease. He testified that the money for the drilling was furnished by people to whom he sold interests at various places. Johnson said these interests were sold on the basis of the well being drilled and completed for a fixed amount of money to he paid contingent upon completion. Johnson hoped to make some profit as operator of the well for the owner of the lease. He would have been paid by the month for supervision and operation of the leases under the arrangement he antici patecl. The agreement with Morgan was an oral one, and Johnson could not recall the terms as to the amount of money involved or the extent of the interest. Johnson testified that one of the appellants, Charlie Spangler, from Marshall, Texas, was one of those involved in the “first deal.” Johnson was paid for looking after the first well by Spangler after a second well was completed. This payment was'for supervision and engineering. His testimony on this 'point is somewhat equivocal as demonstrated by the following portion thereof:
“Q. Now, when you made this second deal you still ended up getting a brokerage fee or whatever kind of fee you call it on the second well, is that right?
A. T got paid for my services looking after the first well and the second well down to casing point.
Q. Who paid you for your services for looking after the first -well?
A. I was paid after the second well was completed.
Q. Who paid you?
A. Mr. Spangler, the operator.
Q. In what form was the payment?
A. Money.
Q. Why would Mr. Spangler be paying you for your services in the first well if Mr. Woodward engaged you?
A. T said the first well, I was paid for my supervision and engineering the completion of it aft- or the second well was drilled, and so maybe I didn’t get anything on the first one, just got paid on the second well for the whole deal.
Q. Paid in cash?
A. Tes sir.
Q. By Mr. Spangler?
A. Mr. Spangler and his partners.”
Johnson stated that the second well was drilled under an arrangement with Spangler and his-partners in Marshall, Texas, who he said had interests in the first well.
A. A. Morgan could not recall ever having a letter from Johnson and doubted that Johnson had one from the WAG- group about the arrangement among the parties. The entire agreement between Johnson and Morgan was oral. He confirmed Johnson’s testimony that he (Morgan) was to get a certain amount of money and a certain interest in the lease if he had completed the well. As he recalled the payment was to have been ‡18,»00 or 9,000 in cash and a one-fourth of the working interest. He stated that his undertaking was a turn-key job, i.e., he was to drill the well to casing point and run and record an electric log after the required depth of drilling had been reached. According to him, he was to bear all of the cost of drilling and testing to that point, when he was to turn the well over to the interested parties free of cost. The only written evidence of the agreement was a letter from Morgan to appellants. The text of this letter is as follows:
“This letter will serve as evidence of our agreement that you are owners respectively to the following extent:
Edward Lothrop
Charles Spangler 12/64th interest to casing ’point Lewis Chevaillier 14/64tb interest to casing point
The.se interests being in a well knowm as the State Moore #1 located in Southeast (SB) Southeast (SB) Sec. 5, Township 20, Range 27 West, Lafayette County, Arkansas, containing forty acres more or less.
Tt is understood that completion costs will be paid on a pro-rata basis by the interest holders. ■
Upon completion of title opinion by attorneys you will be forwarded proper assignments.”
Morgan stated his conclusion that appellants were not partners with him and also stated that they did not have any right to tell him how to drill the well or from whom to buy the materials. He stated that the appellants were joint venturers with him, but explained that he meant that they were, only if the well had been completed. • As he put it, “If we had made a well and completed it, why everybody would have gotten a pro rata part of it, now, if that’s what you’re talking about. If it had made a producing well, everybody would have got their right part.” He compared the deal with one in which a contractor builds a house for a certain amount of money on a turn-key basis,' paying all the expenses and delivering the house to the owner free of expense to him. Although Morgan admitted that appellants had advanced substantial moneys to him, for which he felt an indebtedness to them because of his failure to perform his contract, he testified in response to leading' questions that appellants contributed nothing to the cost and expense of drilling the well and that they were under no obligation to contribute anything.
Appellant Spangler stated that his business and residence addresses were in Marshall, Texas. He stated that he dealt in oil leases, royalties and in the buying of interests in wells. He had conducted such operations in Arkansas during the three or four years preceding. The contract with Morgan was not his first in Arkansas. The Morgan deal was about the fourth well in which Spangler was interested in Arkansas. lie testified that Morgan came to Marshall and visited in the home of appellant Lothrop around Thanksgiving in 1959. Morgan sought to interest Spangler and Lothrop in a. deal for the drilling of the well. According to Spangler, Morgan wanted to sell more of an interest than they wanted, so they got some of their friends to participate in the transaction with them. Spangler stated that under the arrangement with Morgan, he, Lothrop and their associates put up approximately $21,000 before Morgan did anything, in return for which Morgan was to drill the well to casing point, and, if it were a producer, Spangler and his associates would pay their proportionate part of the completion costs and receive a certain interest in the well. Appellant Ohevaillier was interested in the same manner as Lothrop and Spangler, according to Spangler, although Lothrop and Spangler were to have a 12/64ths interest jointly and Ohevaillier was to have a 14/64ths interest. Spangler admitted that it was a fair statement to say that he was putting up part of the cost of drilling’ the well in return for which, if if. became a producer, he was to share in the profits. While he never went to the well site during the course of drilling, he admitted receiving cards from Morgan, at intervals, stating the depth at which he was drilling. Tn response to a request by appellee’s attorney that he state the agreement as to the first well, Spangler said:
* The first wep wag with-we worked with A. A. Morgan and we had, the throe of us, Lothrop, Ohevaillier and I, and our associates, had 26/64tbs in the first well that we bought for a lump sum payment of a well drilled to casing point.”
Tn answer to another question, Spangler testified:
”1 put up the amount that was required to drill the first well and the second well to casing point and I did not obligate myself for anything other than the drilling of the first well and the same thing in drilling the second well. It was a fixed amount of money which I was putting up and under no conditions unless it was a completed well was I ever to put up any more money in the drilling of either wells.”
Appellant Lothrop testified that he came in on the well at the time Morgan came down to Marshall to talk about it. According to him, he put up a certain amount of money at the same time Spangler did to buy a fractional working interest in a well. He was a good friend of Morgan and came to visit him at the well site on one occasion while the drilling was going on. He stated that, at the time of the visit, he had an interest in the well, provided Morgan ever got to casing point. Lothrop said that appellants did not have any right to control any of the drilling of the well, nor were any of them competent to do so. He stated that he paid a fixed sum for a- specified fractional working interest in the well but that the working interest was never delivered because 'Morgan was never able to fulfill his contract.
In order to determine whether or not there is substantial evidence to sustain the court’s findings, w.e must consider the testimony in the light most favorable .to appellee and draw all inferences favorable to appellee that may be reasonably drawn. In doing so, we take note of the following testimony: that the only written evidence of the agreement between Morgan and appellants states no terms except the interests owned by appellants and the obligation of the parties for completion costs; that this letter purports to be evidence of an agreement by Morgan that appellants “are owners” to the extent stated “to casing point;” (emphasis ours) that appellants advanced substantial amounts of money for the drilling; that Morgan made fitful reports of progress to Spangler; that Morgan was both a drilling contractor and the holder of the sub-farmout rights on the lease; that appellants immediately made arrangements for the drilling of a second and successful well without any participation by Morgan after he lost the first one; that Johnson turned over his letter of agreement from the WAG Corporation to appellants, stating that he gave the deal to them; Johnson’s statement that the money paid Morgan was furnished by people to whom he, Johnson, sold interests; Johnson’s answer as to payment for his supervision and engineering on the first well; the rejection of Morgan’s offer of leases in Michigan to appellants in an effort by him to repay them for advances, which he said were unearned; testimony b}^ Spangler that in three previous transactions in Arkansas over the preceding three or four years he had paid a lump sum for an interest in a well drilled to casing point and obligated himself to pay part of the completion costs thereafter. We are unable to say that this testimony does not constitute substantial evidence to support the finding of the circuit judge.
Appellants rely principally upon two cases. They are Stone v. Riggs, 163 Ark. 211, 259 S.W. 412, and Brooks v. McSpadden, 219 Ark. 718, 244 S.W. 2d 144. In the former case there was a written contract, and the court was not left to the recollections of oral agreements among parties which probably never were too clearly expressed. Butlcr-McMurray Drilling Go., under that contract, hired a drilling outfit to Riggs and Pautz, for which they were to receive as compensation a one-eighth interest in certain oil leases. The drillers had no interest whatever in the development of the leased property otherwise. The agreement specifically provided that Riggs and Pautz should bear all the expense of labor, material, and other costs of putting down the wells. Butlor-McMurray had nothing whatever to do with the drilling operations. The circuit court and this court held that the agreement on its face and attending circumstances showed that no partnership existed. Thus, no reliance was placed upon the oral testimony of inter ested parties as to the effect of their agreement.
In the Brooks case, this court affirmed the holding of a chancery court that one Eberle was not a joint venturer with McSpadden in the drilling of a well. Brooks and Jean Lumber and Supply Co. had furnished drilling materials for operations engaged in by McSpadden. Watt was a professional contracto]', who owned drilling rigs, with whom McSpadden made arrangement to drill the well in question for $21,000 plus an interest in the production. Eberle was said to have supplied $19,500 to procure the drilling operations, in return for which he was to receive a fourth of the oil and gas produced. This court there said that Eberle was not shown to have been a party to any joint undertaking and that he could not be penalized on suspicion. In the Brooks case there was no evidence that McSpadden had transferred his farmout agreement to Eberle in return for the advance of funds by Eberle; that Eberle was the owner of an undivided interest to casing point; or that Eberle put up his money without obligating himself for anything other than the drilling of the -well. The inferences which can be drawn from Spangler’s statement with reference to his obligation on the first well are a significant factor in distinguishing his case from Brooks.
Appellants argue that there was no evidence of their right to direct and govern the movements of Morgan in respect to the joint venture. There is no evidence that any right of control or direction was exercised by any of the appellants. There is evidence, however, that each of the appellants admittedly had advanced substantial sums of money on the project, although they contend that they had no legal responsibility to do so. The progress reports made to Spangler are also of some significance. We cannot say that there is a lack of the requisite substantial evidence of the right to control.
We do not mean to say that parties cannot enter into an agreement such as the appellants claim was made here. We only hold that the trier of the facts could and obviously did believe those portions of the testimony of appellants and other witnesses consistent with a joint venture and disbelieve other portions. See Kansas City Southern Ry. Co. v. Dickerson, 112 Ark. 607, 165 S.W. 951.
The judgment is affirmed.
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Richard B. Adkisson, Chief Justice.
Mid America Video Corporation was organized by appellant, Gene Mullenax, Hubert Smith, and another incorporator in March of 1980. Records from the Secretary of State’s office reflect that on November 24, 1980, Mid America’s corporate charter was revoked for nonpayment of franchise tax pursuant to Ark. Stat. Ann. § 84-1842 (Repl. 1980). The charter was reinstated on May 28, 1981.
Meanwhile, beginning in August, 1980, and continuing through the period of time Mid America was without a franchise, appellee, Edwards Sheet Metal Works, Inc., manufactured certain satellite antenna component parts for Mid America. This suit arose over nonpayment for these parts as reflected by invoices introduced at trial dated April 1, April 17, and May 15, 1981, in the amount of $21,655.52.
In January of 1982 appellee brought suit against appellant and Smith individually to recover the corporate debt. Relying on Moore v. Rommel, 233 Ark. 989, 350 S.W.2d 190 (1961) the Pulaski County Circuit Court, sitting without a jury, held that appellant and Smith were personally liable for the corporate debts. Smith did not appeal the trial court’s holding, but appellant did. On appeal we affirm.
Appellant first argues that although the Secretary of State’s records reflect that Mid America’s charter was not reinstated until May 28,1981, the delinquent franchise taxes were actually paid in December of 1980, and therefore he should not be personally liable for debts incurred after payment of the tax. However, appellant was unable to produce any documentary evidence at trial to substantiate this contention. Appellant relies upon the testimony of the corporation’s accountant who stated that in December of 1980 he instructed the corporation to mail the state a tax report he had prepared, along with an $ 11.00 check, and that an $11.00 check went through the corporation’s bank account. However, there was no evidence as to when the corporation actually mailed in the report and the check or when these items were received by the state, and there was no evidence of when the check cleared the corporation’s bank account. Therefore, we find no merit in appellant’s first argument.
Appellant next argues that he is not personally liable for the corporate debts of Mid America because there is insufficient evidence from which the trial court could have found that the debt was incurred during the period of time the charter was revoked. We disagree. There was undisputed evidence before the trial court by way of invoices and ledger sheets to the effect that the debts in question were incurred during the time the charter was revoked. Furthermore, argument of counsel before the trial court reveals that all parties accepted this undisputed evidence as dispositive of this issue.
Appellant also argues that the trial court erred in holding him personally liable for the corporate debts because he was not an officer or director of the corporation when they were incurred. However, we are unable to say that the trial court erred in this respect. The record reflects that appellant was president of the corporation and a director from its inception. Appellant testified that he resigned as president on December 31, 1980, but the trial court did not have to accept this testimony as undisputed since appellant is a party to the suit. Ball v. Hail, 196 Ark. 491, 118 S.W.2d 668 (1938). Appellant testified that “There was a document that Don Greenwell prepared, that I signed that said I resigned, and Hubert was president.” However, this document was never introduced at trial; there was also evidence that in March appellant was active in the corporation. Furthermore, although the trial court left the record open for additional proof on appellant’s status in the corporation, none was ever forthcoming. Under these circumstances we cannot say the trial court erred in holding appellant personally liable for the corporate debt.
Affirmed. | [
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Darrell Hickman, Justice.
This is an appeal from a decision by the Pulaski County Chancery Court holding that certain equipment sold by Lyon’s Machinery Company, the appellee, is exempt from the Gross Receipts Act. The statute exempts from sales tax, equipment sold that is used directly in manufacturing. The chancellor held that the equipment is used in the “manufacture” of concrete and, therefore, is exempt under Ark. Stat. Ann. § 84-1904 (r) (2).
The State argues on appeal that the equipment is not used in the “manufacture” of a product within the meaning of the statute and requests that the judgment be reversed. We find the chancellor was wrong, reverse the decree, and remand the cause for entry of judgment for the State.
Lyon sells ready-mix concrete plants, which are generally called “batch” plants, and according to the undisputed evidence these plants are used to mix cement, sand, gravel and water to produce ready-mix concrete. The batch plants are expensive and modern machinery for mixing cement. While the appellee presented a good deal of testimony that the ready-mix concrete industry has become very sophisticated and technical, using computers to insure quality, it is essentially the same business that it was in 1965. In 1965, we decided the case of C.J.C. Corp. v. Cheney, 239 Ark. 541, 390 S.W.2d 437 (1965) that ready-mix batch plants were not exempt from taxation as manufacturing equipment. We held that such equipment was simply used to mix and process certain ingredients and was not used in manufacturing. The only difference between the batch plants here and in C.J.C. Corp. is that water is added in the batch plants in question and it was not in the C.J.C. Corp. case. That is not a significant or controlling factor. The machinery is still just used for mixing materials and does not produce a truly finished product, such as concrete blocks. It is the burden of the taxpayer to prove beyond a reasonable doubt that equipment is exempt from taxation. C & C Machinery, Inc. v. Ragland, 278 Ark. 629, 648 S.W.2d 61 (1983). We can find no basis for distinguishing this case from our decision in C.J.C. Corp. v. Cheney, supra. Therefore, we reverse the chancellor’s decision.
The second issue raised on appeal, whether certain items such as belt conveyors, water heaters, bins, and so forth are used directly in the manufacturing process, becomes moot in view of our decision on the main issue.
Reversed and remanded. | [
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Robert H. Dudley, Justice.
In 1980 the City of Mena employed appellant, Don W. Allen, as Chief of Police. He continues to serve in that capacity but, from January 25, 1981 until February 8, 1982, he was not certified as a law enforcement officer. Appellee, Gene Titsworth, filed a class action on behalf of all taxpayers residing in Mena praying that all official acts of appellant as police chief during the period of non-certification be invalidated and that appellant be ordered to refund all compensation paid to him during the period. The chancellor ruled that all actions taken during the period were invalid but that a refund of the compensation received during the period was not required. Both parties appeal. We dismiss on direct appeal and affirm on cross-appeal. Jurisdiction is in this Court as this case involves the interpretation of the statute on certification of law enforcement offices. Rule 29 (1) (c).
Title 42, Chapter 10 of the Arkansas Statutes Annotated provides a system and a program for the training and certification of law enforcement officers within the State. An appointed chief of police is a law enforcement officer, within the statutory definition, because he “is responsible for the prevention and detection of crime and the enforcement of the criminal, traffic or highway laws of this State ....” Ark. Stat. Ann. § 42-1001 (a) (Repl. 1977). Thus, it was necessary for appellant to be certified in order for him to validly act as a law enforcement officer. Appellant failed to obtain certification for the period of time at issue. Ark. Stat. Ann. § 42-1009 (Repl. 1977) provides that one who is not certified “shall not take any official action as a police officer and any action taken shall be held as invalid.” Appellant does not contest that part of the trial court’s decree which invalidates all actions taken by him as a law enforcement officer during the period of non-certification. Rather, he argues that the certification statutes should not apply to non-law enforcement administrative acts as distinguished from law enforcement administrative acts. We do not reach the point because the evidence offered below is not sufficient to make the suggested distinction a justiciable issue. We are asked to issue an advisory opinion to decide an academic issue. This is contrary to our practice. Stafford v. City of Hot Springs, 276 Ark. 466, 637 S.W.2d 553 (1982). Therefore, we dismiss the direct appeal. Similarly, in the court below there was no real controversy concerning any designated act, there was no standing to directly question a specific action and the trial court did not invalidate any particular act. While that part of the trial court’s decree invalidating all law enforcement actions is not on appeal, we note that it is in the nature of advice and does not have the force, effect and binding nature of a judicial decision which resolves an actual controversy between parties. McCuen v. Harris, 271 Ark. 863, 611 S.W.2d 503 (1981).
On cross-appeal Gene Titsworth argues that the trial court erred by not requiring cross-appellee Don Allen to refund all compensation paid to him during the period of non-certification. We find no merit in the contention. Crossappellee was validly employed, his salary was reasonble and he acted in good faith. Under these circumstances the city should not be given a windfall profit. Martindale v. Honey, 261 Ark. 708, 551 S.W.2d 203 (1977).
Dismissed on direct appeal and affirmed on cross-appeal. | [
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Robert H. Dudley, Justice.
This case of first impression involves the interpretation of Ark. Stat. Ann. § 50-531 (Supp. 1981), a law significant to the farming community. This law, enacted in 1981 by the General Assembly, provides as follows:
Termination of oral lease of farm lands. — The owner of farm lands which are leased under an oral agreement may elect not to renew the oral rental or lease agreement for the following calendar year by giving written notice by certified registered mail to the renter or lessee, on or before June 30, that the lease or rental agreement will not be renewed for the following calendar year.
Pursuant to this statute, the trial court held that the landlord, appellee, gave sufficient notice to the tenant, appellant, to terminate his tenancy in farm property at the end of 1981. The notice of termination was mailed by the appellee on June 29, 1981 by certified mail, but was not received by appellant, a tenant from year to year on a calendar year term, until July 3, 1981. We affirm. Jurisdiction is in this Court as this case requires the interpretation and construction of an act of the General Assembly. Rule 29 (1) (c).
Before considering whether the notice was timely, we must decide whether the act applies to tenancies from year to year. A comparison of the tenancy from year to year and the oral lease leads us to conclude that the General Assembly intended that this act be applied to tenancies from year to year.
At common law, one of the ways a tenancy from year to year could be distinguished from an oral one year lease was by the requirement of notice to vacate. A tenant holding under an oral one year lease was not entitled to notice of the landlord’s decision not to extend the lease for another year. Sigmon Forest Products, Inc. v. Scroggins, 247 Ark. 493, 446 S.W.2d 198 (1969). However, a tenant from year to year was entitled to six months’ notice to vacate. Gregory v. Walker, 239 Ark. 415, 389 S.W.2d 892 (1965). This distinction leads to three reasons which mandate that the act be applied to tenancies from year to year.
First, this Court has strictly construed the definition of six months’ notice in such tenancies. Thus, notice on July 1 has been held insufficient to terminate a tenancy running to December 31. Gregory, 239 Ark. at 417, 389 S.W.2d at 893. Obviously by supplying the date of “on or before June 30” the General Assembly gave landlords and tenants a clear, simple and codified method of determining a fixed date for the purpose of giving six months’ notice, at least as applied to calendar year tenancies from year to year.
Second, at common law in a tenancy from year to year the landlord alone is required to give notice to vacate. Similarly, the act does not provide for mutuality of notice but provides only for a method of notice by the landlord. This parallel circumstance indicates that the legislative intent was to provide for tenancies from year to year.
Third, oral notice, if timely given, has always been sufficient notice. However, disputes often arise over when oral notice was given. The act provides that the landlord may elect to use this form of written notice. Thus, the legislative intent could well have been to statutorily provide for an optional written method of proving when notice was given.
The appellant asks that we limit our construction of the act to its literal meaning. Clearly, the literal interpretation of the act is that it applies to “lands which are orally leased.” One writer in an excellent article opined that the act “requires, in the case of oral agreements, the same notice not to renew or extend as was previously applicable to tenancies from year to year.” Cathey, The Real Estate Installment Sale Contract: Its Drafting, Use, Enforcement and Consequences, 5 U. Ark. Little Rock L.J. 229, 237-38 (1982). The author of another fine article has written, “The Arkansas legislature has attempted to clarify the notice requirement for oral leases in Act 866 of 1981.” Looney, Legal and Economic Considerations in Drafting Arkansas Farm Leases, 35 Ark. L. Rev. 395, 426 (1982). We decline to give such a limited interpretation to the statute because the literal interpretation does not give effect to the legislative intent. It is the duty of this Court to give effect to the intent of the General Assembly, even though the true intention, though obvious, has not been expressed by the language employed when given its literal meaning. Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964). We conclude that a proper construction of the act renders it applicable to tenancies from year to year.
The second issue is whether this notice was given in time to terminate the tenancy at the end of 1981. The notice was mailed on June 29 and received on July 3, 1981. At common law this would not have been timely notice for the year ending in 1981 since the tenant was entitled to receive six months’ notice. See Gregory v. Walker, supra. However, the act does not require that the tenant receive notice on or before June 30. It provides that the landlord give notice to the tenant on or before June 30. In using the word “give,” as distinguished from “receive,” the General Assembly may well have intended that we be guided by the definitions of these words in the Uniform Commercial Code. Ark. Stat. Ann. § 85-1-201 (26) (Supp. 1981) provides:
A person “notifies” or “gives” a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course, whether or not such other actually comes to know of it. A person “receives” a notice or notification when
(a) It comes to his attention; or
(b) It is duly delivered at the place of business through which the contract was made or at any other place held out by him as the place for receipt of such communications.
These definitions comport with the definitions of the giving of notice contained in the legal encyclopedias. They agree that where the giving of notice by way of a specified form of mail is prescribed by statute, notice is effected when the written notice is properly addressed and placed in the mail. See 66 C.J.S. Notice § 18 (3) (1950); 58 Am. Jur. 2d Notice% 27 (1971).
Rule 5 (b) of the Arkansas Rules of Civil Procedure is also supportive of an interpretation that notice is effectively given when mailed. ARCP 5 (b) provides that when service is allowed to be made by mail, “Service by mail is presumptively complete upon mailing.”
We conclude that the General Assembly did intend to change the common law to the extent that the giving of notice on or before June 30 is sufficient when service by mail of that notice is promptly completed. We recognize that a different issue would be before us if service had not been completed but we reserve judgment on that issue until it is properly before us. See, e.g., Escher v. Morrison, 278 N.W.2d 9 (Iowa 1979).
Affirmed. | [
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Steele Hays, Justice.
The trial court dismissed this personal injury suit by summary judgment upon a finding that the cause of action was barred by the three year statute of limitations. On appeal, appellant urges that the statute was tolled by the timely filing of the complaint and by an order extending the time for obtaining service of summons. The argument is not sustained and we affirm the trial court.
Appellant’s injuries were incurred on September 20, 1977 and suit was filed on September 11,1980. Summons was issued and returned “non-est” on September 18 with a notation that the defendant (appellee) had moved to Rt. 5, Box 501, Springdale, Arkansas. After another unsuccessful attempt was made to serve the appellee under the long arm statute, a new summons was issued and served at the Springdale address on July 20, 1981. Also on July 20, appellant filed a motion to extend the time for obtaining service, which the trial court granted upon a finding that a reasonable effort had been made to obtain service of summons, and that good cause existed to extend the time for obtaining service.
The trial court overruled a motion to dismiss the complaint and subsequently the case was transferred to another division, where appellee moved for summary judg ment on the grounds the pleadings showed on their face that the cause of action was barred. The motion was granted and we are asked to reverse the trial court.
The only question to be decided is whether appellant’s cause of action “commenced” within three years from the date his injuries were sustained, as required by Ark. Stat. Ann. § 37-206. It is agreed the collision occurred on September 20, 1977, that suit was filed on September 11, 1980, some nine days prior to the running of the statute and that summons was immediately issued. However, Rule 3 of the Arkansas Rules of Civil Procedure (Commencement of Action) provides that an action shall not be deemed to have commenced:
“[A]s to any defendant not served with process . . . within sixty (60) days of the filing of the complaint, unless within that time the person filing the complaint has made an effort... 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.” (our italics)
Rule 4 provides several alternative methods of service, but appellant availed himself of none of these within the sixty days permitted by Rule 3, nor was any order of extension for good cause made by the trial court within the ninety days permitted by the rule. After the initial summons was returned “non-est” nothing else happened in the case for nearly seven months, when on April 10, 1981, appellant made an attempt to serve the appellee under the long arm statute. This fails to meet the plain wording of Rule 3 and the trial court was correct in finding that suit was not “commenced” within the time provided by Rule 3.
Appellant argues that the trial court has discretion on a showing of good cause to enlarge the period of time provided for in Rule 3, pointing out that the July 20, 1981 order found that a reasonable effort had been made to serve the appellee and that good cause existed to enlarge the time allowed by Rule 3. But the order was not entered until nine months after the statute of limitations had run, and seven months after the period allowed in Rule 3. The trial court found, correctly, that the discretion arising under Rule 3 must be exercised within the time period allowed under the rule.
Appellant also cites ARCP Rule 6 (b) (2) which permits a trial court to enlarge the time within which an act is to be performed even after the time has expired upon a finding that the failure to act was the result of unavoidable casualty or excusable neglect. But we decline to reach that issue, as there is nothing in this record to indicate a factual basis for holding the long delay was attributable to unavoidable casualty or excusable neglect. The.fact is that appellant was served on July 20, 1981, at the same Springdale address as was shown on the copy of the Sheriff’s “non-est” return filed with the Clerk on September 18, 1980.
The judgment is affirmed. | [
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Darrell Hickman, Justice.
This is the second appeal of this breach of contract case. John J. Weisse, a newly certified surgeon, was employed in 1976 by Westark Surgical Clinic, a professional association of doctors located in Fort Smith. After one year Weisse resigned and sued Westark for what he claimed was due him under an employment contract. At the first trial the jury awarded him $20,000. We reversed the judgment because of prejudicial evidence submitted to the jury., Westark Surgical Clinic v. Weisse, 268 Ark. 505, 597 S.W.2d 820 (1980). On retrial the jury awarded Weisse $32,000, and we affirm that judgment.
Weisse visited Westark Clinic twice before beginning his employment. After each visit he received a letter from the Clinic. The first letter generally set forth the terms of employment with the Clinic: salary, benefits, relocation expenses, vacation, etc. The second letter, written in February of 1976, acknowledged Weisse’s acceptance of the Clinic’s offer of employment. Both letters said that Weisse would receive a written employment agreement.
Weisse started work at the Clinic in July of 1976. It is undisputed that he continually asked for a written contract. And, when he asked about certain benefits, the Clinic physicians answered him that it was covered by the contract he would receive. Finally, in October, the Clinic’s attorney sent Weisse a blank contract along with other Clinic documents. The contract included a salary continuation clause which provided that in the event of termination the employee would get 100% of his salary for the first three months following termination, 75% the next three, 50% the next three, and 25% the final three months. In Dr. Weisse’s case that would amount to $30,000.
The blank contract was never signed but Weisse testified that he believed it to represent his agreement with the Clinic. When he left the Clinic he was refused salary continuation and he sued for that and for compensation for doing follow-up care on patients he treated while at the Clinic. On retrial, following the first reversal of this case, the jury awarded Weisse $30,000 in termination pay and $2,000 compensation for his work after he left the Clinic.
The Clinic appeals the jury’s decision on three grounds. First, it contends that the trial court erred in refusing to allow evidence of customary employment contracts between employing physicians and physicians just beginning practice. The Clinic proffered evidence by a Little Rock lawyer who prepared such employment contracts in six southern states that he had never seen a salary continuation clause in a contract with a physician just out of school.
The trial court correctly found that a custom is admissible as evidence only if it is known to both parties, or is such a widespread custom in a trade that the parties will be presumed to be aware of the custom. Ben F. Levis, Inc. v. Collins, 215 Ark. 172, 219 S.W.2d 762 (1949). Weisse was from New York and educated there. He completed his residency in Columbia, Missouri. He testified that he had no knowledge of the custom of inserting salary continuation clauses or the lack of them in medical employment contracts. The trial court’s ruling, a discretionary one, was on a sound basis. We cannot say that the record proves that such a custom was known to Weisse or so widespread that he would be presumed to be aware of it. To do so would be to rule that the trial judge manifestly abused his discretion — a decision we cannot make.
Secondly, it is argued that the trial court was wrong in allowing Weisse to introduce an exhibit which showed the services Weisse rendered to Clinic patients a short time before he left the Clinic and for two weeks after. These were patients Weisse treated or performed surgery on while at the Clinic, and the exhibit showed the surgery, the postoperative, and the follow-up care and treatment by Weisse. The Clinic argues that the exhibit was prejudicial because it showed that the Clinic made $10,000 in charges for the treatment and that that was not relevant to what Weisse should receive since Weisse and the Clinic had a salary agreement. Weisse testified that he had been paid for the services that he rendered before he left the Clinic but that he had not been paid for the services given after he left and that he estimated those services to be worth $2,000. Apparently the jury agreed because that is what he was awarded. The trial court ruled that the exhibit was relevant and we cannot say he was manifestly wrong.
Finally, it is argued that the evidence was not sufficient to support the verdict. Essentially the appellant makes a legal argument and the question is whether the jury was entitled to decide the terms of the contract between Weisse and the Clinic. Although there was no signed agreement, evidence existed that the parties contemplated a written agreement and that the Clinic intended the parties’ agreement to be governed by the employment contract. The Clinic’s only contract in existence, and the one given to Weisse, had a salary continuation provision. When the evidence is considered in a light most favorable to the appellee, we find that there was substantial evidence to support the jury’s finding.
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Tom Glaze, Justice.
This case arises from the appellant Willis Robinson’s purchase of two allegedly defective automotive heads from Charles Buie’s business, Advanced Head Service. These two automotive heads were installed into a new engine block, and when the engine was started, a valve fell from the head causing extensive damage to the engine. Appellant filed suit, alleging breach of contract and warranty and naming Advanced Head Service as the only defendant. Service of process was made on Todd Bowie, apparently an employee of Advanced Head Service. Except for a short time when Advanced Head Service was represented by an attorney, all of its pleadings were signed, Charles Buie, pro se, for Advanced Head Service, defendant. The appellant was awarded a default judgment against Advanced Head Service for $685.65 plus court costs.
The appellant subsequently could not execute on his judgment, because Advanced Head Service had gone out of business and had no assets. Thus, appellant then filed postjudgment motions under ARCP Rule 60(b) requesting that the trial court amend the judgment to make Charles Buie a party or to set aside the judgment to prevent a miscarriage of justice. Buie responded to appellant’s motions, stating no fraud was committed on the court, no mistake was made by the defendant, and no error was committed by the court, thus, the judgment must stand. The trial court denied the appellant’s postjudgment motions, and the appellant did not appeal that ruling.
Instead, on October 3, 1990, the appellant filed another lawsuit this time against Charles Buie and all of his businesses, including Advanced Head Service. In this complaint, appellant incorporated by reference the pleadings contained in the prior complaint against Advanced Head Service and added allegations of fraud and deceit pertaining to Buie’s relationship and ownership of Advanced Head Service. Specifically, he alleged and argued that, when Buie appeared pro se for Advanced Head Service, he made himself a party to the suit; in the alternative, he claims Buie engaged in the unauthorized practice of law, because a layman cannot represent another. Buie responded, seeking dismissal of appellant’s second complaint on the basis of res judicata and collateral estoppel. The trial court agreed with Buie, and granted his motion to dismiss. Appellant challenges the court’s dismissal order in this appeal. We affirm.
Under the doctrine of res judicata or claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Toran v. Provident Life & Accident Ins. Co., 297 Ark. 415, 764 S.W.2d 40 (1989). Privity of parties within the meaning of res judicata means “a person so identified in interest with another that he represents the same legal right.” Spears v. State Farm Fire & Casualty Ins., 291 Ark. 465, 725 S.W.2d 835 (1987). Res judicata bars not only the relitigation of claims which were actually litigated in the first suit, but also those which could have been litigated. Id. Collateral estoppel or issue preclusion bars the relitigation of issues of law or fact actually litigated by the parties in the first suit. Id.
The appellant’s claims of breach of contract and warranty were litigated and decided in his favor in the first suit against Advanced Head Service. Now, the appellant attempts to argue these same claims against Buie and his businesses, including Advanced Head Service. Evidently, the appellant for whatever reasons chose not to join Buie as a party defendant in the first suit, but tried later to correct that omission or mistake by refiling his suit against Buie. Clearly the appellant is barred from relitigating his claim of breach of contract and warranty which had already been decided in his favor in his first action.
Likewise, the appellant’s allegation of fraud against Buie is also barred by res judicata. The appellant moved to have the judgment amended or set aside to prevent a miscarriage of justice under Rule 60(b). In Buie’s response, he stated that there was no mistake, fraud or miscarriage of justice present and thus the judgment should stand. In the trial court’s order denying the appellant’s post-judgment motions, the judge specifically mentioned reviewing Buie’s response. Thus, there is every indication that the trial judge specifically considered the possibility of fraud when denying the appellant’s motions. However, even if the trial judge did not consider allegations of fraud when he denied appellant’s motions, the appellant could have made his fraud argument against Buie in his first lawsuit. Under ARCP Rule 60(b) and (c)(4), a judgment may be vacated which has been obtained by fraud. See Brown v. Kennedy Well Works, 302 Ark. 213, 788 S.W.2d 948 (1990). Throughout the first lawsuit, Buie filed pleadings on Advanced Head Service’s behalf but signed the pleadings, “Charles Buie, pro se.” The facts and issues available to appellant when he filed his second lawsuit are the same as existed during the first action and at the time he filed his post-judgment motions. Thus, since the appellant could have made his fraud argument before, he is barred from doing so now.
For the reasons stated above, we affirm.
When entered, the judgment erroneously contained Mr. Buie’s name in the style of the case, but Buie’s name was later excluded when the trial court granted Buie’s motion to amend the judgment. | [
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Per Curiam.
This case was initially filed in the Arkansas Court of Appeals and involves a second appeal. On June 3,1991, the appellant filed a motion in the court of appeals asking that this case be certified to the Arkansas Supreme Court. See Bobby Bratton v. Mitchell, Williams, Selig, Jackson and Tucker, 302 Arkansas 308, 788 S.W.2d 955 (1990). Motions to dismiss were also filed in the court of appeals by various appellees.
On June 19, 1991, the appellant’s “motion to certify the Supreme Court, to remand and to stay brief time,” as well as all other motions filed by the parties in the court of appeals, were certified to this court. The various appellees again filed motions to dismiss. The motions of all parties were submitted to this court on June 24, 1991; on July 1, 1991, the appellees’ motions to dismiss the appeal were granted, and the appellant’s motion to remand and to stay briefing time was declared moot.
Subsequent to this July 1, 1991, order of dismissal, the appellant has filed petitions for “reconsideration” and a “motion to recall order.” On July 15, 1991, the appellant’s requests were denied. The appellant continues to file pleadings in this court such as this petition for writ of error coram nobis, which are without merit and which are burdensome to the administrative affairs of the court. The clerk is therefore directed to dismiss this petition for writ of error coram nobis and to accept no further filings by Bobby Bratton with reference to proceedings involving Case No. 91-161, regarding Mitchell, Williams, Selig, Jackson and Tucker, Jim Guy Tucker, et al.
IT IS SO ORDERED.
Brown, J., not participating. | [
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Robert L. Brown, Justice.
This appeal arises from an order of the Pulaski County Circuit Court denying the appellant, Agape Church, Inc., an exemption from real estate taxes. The property involved is twenty-six acres of land, which is located some distance from the church buildings. A 700-foot transmission tower and a tower house for broadcasting Christian programming are the only structures that have been erected on the acreage. The church appeals the denial of the exemption on the basis that the tower and the acreage were dedicated church property and, therefore, qualified for an exemption under the statute.
The facts are not at issue. Agape Church, Inc., a non-profit corporation, operates a non-denominational Christian church in Little Rock. As part of its ministry, the church has a television station and broadcasts on cable Channel 25, KVTN. It asserts that all television property, including the tower, tower house, and acreage, are exclusively used for and dedicated to Christian purposes.
The appellee, Pulaski County, sought to assess the acreage with its improvements for real estate taxes, and the church claimed an exemption under Ark. Code Ann. § 26-3-301(11)(A) (Supp. 1991), which reads:
Under the provisions of this section, all dedicated church property, including the church building used as a place of worship, buildings used for administrative or missional purposes, the land upon which the church buildings are located, all church parsonages, any church educational building operated in connection with the church including a family life or activity center, a recreation center, a youth center, a church association building, a day-care center, a kindergarten, or private church school shall be exempt.
The Pulaski County Judge denied the exemption, and the church appealed the denial to the Pulaski County Circuit Court, which conducted a trial de novo and ultimately affirmed the ruling of the county judge. In doing so, the circuit court held that the property was not exempt under either Ark. Const, art. 16, § 5 or Ark. Code Ann. § 26-3-301(11)(A).
We begin with an analysis of the property claimed by the appellant to be exempt. The twenty-six acres and the tower are located in eastern Pulaski County near the Lonoke County line. On the land is also an adjoining tower house, which is a ten by twenty foot building that houses the transmitter. The tower’s height is 700 feet, and it is anchored to the ground by guy wires that extend 500 feet from the tower’s center. Virtually all of the twenty-six acres is used to accommodate the tower. The tower transmits the broadcast signal from the church to Channel 25. No church services are held on the acreage, and the broadcasts do not originate from that property. This acreage is separate and apart from the church proper which is situated in west Little Rock.
The purposes of the church and the station were described by the Reverend Howard Lee Caldwell, the church’s pastor, at the hearing before the circuit court. He testified that in 1988 the church purchased a certificate of construction for a full power UHF television station, Channel 25. The station went on the air in December 1988, and on Christmas Day, in a live broadcast, he dedicated the television station “to the work of the Lord for Christian programming in Central Arkansas.” Since then, he said, the programming has been solely Christian. Some programs are broadcast from the church, but the vast majority of programming comes from other Christian denominations and from Christian sources such as the 700 Club that pay the church to run their broadcasts. Contributions received from Arkansas viewers by the other Christian programmers are shared with the church. The church estimates that it reaches eight times the number of the people through television on Sunday morning than it does through regular Sunday morning services — over 1,200 people attend services, while the television station reaches over 8,000 homes.
The church congregation raised the money to build the station in 1988, including money for the acreage and the tower which are the subject of this appeal. The bulk of support for the station’s maintenance and operation comes from the congregation, although non-members also contribute. All viewers are asked to make a gift of $ 10 a month for the station. There is, too, the revenue derived from the sale of air time to other Christian programmers and a small amount of monthly advertising revenue. Any monthly deficit is made up by the church from the church’s general fund. The church has realized no profit from the station’s operation.
We have long held that exemptions from taxation must be strictly construed, regardless of merit, in favor of taxation and against exemption. See, e.g., City of Fayetteville v. Phillips, 306 Ark. 87, 811 S.W.2d 308 (1991); Arkansas Conference Association of Seventh Day Adventists, Inc. v. Benton County Board of Equalization, 304 Ark. 95, 800 S.W.2d 426 (1990); Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960); Brodie v. Fitzgerald, 57 Ark. 445, 22 S.W.2d 29 (1893). We have further held that the scope of review for tax exemption cases is de novo on appeal. See Ragland v. Dumas, 292 Ark. 515, 732 S.W.2d 119 (1987). Lastly, we have held that the party claiming an exemption must prove it beyond a reasonable doubt. Id.; see also Ragland v. Pittman Garden Center, Inc., 299 Ark. 293, 772 S.W.2d 331 (1989); C&C Machinery, Inc. v. Ragland, 278 Ark. 629, 648 S.W.2d 61 (1983); S.H. & J. Drilling Corp. v. Qualls, 268 Ark. 71, 593 S.W.2d 178 (1980); Heath v. Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 953 (1976).
Bearing these principles in mind and reviewing the case de novo, we cannot say that § 26-3-301(11)(A) clearly embraces television towers or like structures with the degree of exactness and certainty required by our cases or that an exemption has been proven beyond a reasonable doubt. By its terms, the exempting statute refers to “all dedicated church property” and then lists “buildings” and “centers” such as the church itself, administrative buildings, the parsonage, and the youth center. This language is ambiguous. Were we to stop with the words “all dedicated church property,” the task would be immensely easier. But we are required to read the statute in its entirety, and it can be read several different ways.
One interpretation is that the buildings and centers listed in the statute are all the General Assembly intended to exempt. A second interpretation is that the General Assembly intended to exempt other buildings as well, and this statutory list merely comprises examples. A third interpretation is the one advanced by the church — the statute embraces all dedicated church property, whether buildings or real estate or structure like the tower.
It is possible that the General Assembly did intend a very liberal exemption under the statute, but the argument that the legislature intended to limit the exemption to the buildings listed in the statute or to church buildings general is equally persuasive. A television tower, manifestly, is not a building, and the fact that a small incidental tower house is located on the property does not convert the entire twenty-six acres into a “building.”
We turn to the doctrine of ejusdem generis for guidance in resolving this ambiguity. In 1989 we defined that doctrine in the following terms:
The doctrine provides that, ‘Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the proceeding specific words.’ 2A Singer, Sutherland Statutory Construction § 47.17(4th ed. 1984). See also, Jones v. State, 104 Ark. 261, 149 S.W. 56 (1912); Cherokee Public Service v. City of West Helena, 184 Ark. 38, 41 S.W.2d 773 (1981). The doctrine can only apply however, when certain conditions exist:
(1) The statute contains an enumeration of specific words; (2) the members of the enumeration suggest a class; (3) the class is not exhausted by the enumeration; (4) a general reference supplementing the enumeration, usually following it; and (5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.
Sutherland Statutory Construction, supra, § 47.18. Woodruff v. Shockey, 297 Ark. 595, 598, 764 S.W.2d 431, 432, (1989); see also Hutcheson v. Pace, 252 Ark. 928, 481 S.W.2d 710 (1972); Union Bankers Ins. Co. v. Nat’l Bank of Commerce of Pine Bluff, 241 Ark. 554, 408 S.W.2d 898 (1966); Fagan Electric Co., Inc. v. The Housing Authority, 216 Ark. 932, 228 S.W.2d 39 (1950). Though the doctrine is generally cited in connection with a general reference in the statute which follows a specific enumeration, it is equally applicable where the general reference precedes a list of specific examples.
We hold that the conditions of ejusdem generis exist in this case and that application of the doctrine is appropriate. Under this doctrine “all dedicated church property” is a class of property which is defined under the statute by what comes subsequently. Those specific references are to church buildings, administrative buildings, land for church buildings, parsonages, and various centers for church-related activities. A reasonable interpretation of the class of exempt property is one that embraces buildings related to church purposes and land where they are located. The class defined by the specific references, therefore, is composed of church buildings, church-related buildings, and the land on which such buildings are located. As we cannot conclude that a television tower is a building, it does not come within the class.
The church directs our attention to several cases in foreign jurisdictions and relies especially on an Ohio case as precedent. See Maumee Valley Broadcasting Ass’n v. Porterfield, 29 Ohio St. 2d 95, 279 N.E.2d 863 (1972). The Maumee Valley case differs factually from the case before us. There, the issue was the payment of sales and use taxes by the church for purchases made in connection with a ten-acre tract on which was located a broadcasting studio and an auditorium to accommodate about 120 people. The Ohio Board of Tax Appeals had allowed the exemption, and the Ohio court deferred to the Board on the factual issues. It then looked to the character, motive, and purpose of the facilities on the ten acres and concluded that the tract had the necessary attributes for a church. What distinguishes Maumee Valley from this case, however, is that religious activities occurred on the premises — in the broadcasting studio and in the auditorium. That is not the situation in the case before us.
Though the church admits that it hinges its argument on the exemption statute and not the exemption for “churches used as such” set out in Ark. Const, art. 16, § 5, it still looks to cases construing the constitutional language and argues that this authority is instructive on how the exemption statute should be construed. In this regard, the church relies particularly on Hilger v. Harding College, Inc., 231 Ark. 686, 331 S.W.2d 851 (1960).
In Hilger, the issue was whether a college-owned laundry, printing shop, and dairy were used directly and exclusively for school purposes so as to be exempt from taxation under Ark. Const, art. 16, § 5. We reversed the chancellor and denied the exemption. In doing so we interpreted the exemption language in the constitution — “school buildings and apparatus; libraries and grounds used exclusively for school purposes.” We distinguished between the purpose for which property was actually being used and the purpose for which the income derived from the property was being used and concluded that the laundry and other property were not exclusively used for school purposes and, therefore, were not exempt.
Hilger, however, is not helpful in deciding this case. The exemption claimed in Hilger under the constitution is different from the exemption that confronts us. Also, here, the fact that the purpose of the tower is to communicate Christian teachings is undisputed. The issue, rather, is whether the tower, which admittedly is used for Christian purposes, falls within the parameters of the exemption statute.
It is true that in past cases we interpreted the constitutional language, “churches used as such,” in light of whether the land involved was used exclusively for church purposes. See Burbridge v. Smyrna Baptist Church, 212 Ark. 924, 209 S.W.2d 685 (1948); Pulaski County v. First Baptist Church, 86 Ark. 205 (1908). In First Baptist Church, we denied the real estate tax exemption on the basis that the well and water closets located on a separate lot could have been situated on the lots where the church was built. In Burbridge, we reversed the chancellor and denied a tax exemption on twenty acres of land where the church had burned and the cemetery occupied only two acres of the tract.
The fact that we alluded to church purposes in those cases is not precedent for the church’s proposition that the character or motive or purpose of the tower should govern this case, rather than the specific language of § 26-3-301 (11) (A). Furthermore, in both Burbridge and First Baptist Church, we tied our decision to the fact that the land sought to be exempt was not identified closely enough with a functioning church building. In Burbridge, the church had been destroyed and the congregation dispersed. In First Baptist Church, there was no reason to have the well and water closets on a separate lot when they could have been placed on the same lots as the church building.
Our cases mandate that we strictly construe statutory exemptions in favor of taxation, no matter how commendable or beneficial the exemption claim may be. Moreover, our interpretation of the statute limits the class of exempt dedicated church property to buildings related to church purposes and land where they are located. We, therefore, decline to liberalize our exemption statute in accordance with one interpretation so as to effectuate a particular exemption when the statute is not clear. Clarification of this exemption statute rests with the General Assembly — not the courts. We will resist the temptation to legislate an expansive interpretation.
Affirmed.
Corbin, J., concurs.
Cemetaries are entitled to a separate exemption under Ark. Const, art. 16, § 5. | [
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Steele Hays, Justice.
Appellee Frances Maudine Watson was charged in Count I of an information with “being a parent, guardian, or person legally charged with the care or custody of a child, she recklessly failed to take action to prevent the abuse of Daniel Toric who is less than eleven years old.” Arkansas Code Ann. § 5-27-221(a)(l) (1987). Ms. Watson filed a motion to dismiss Count I, alleging that the state could not prove she was a parent, guardian or person legally charged with the care of Daniel Toric.
At a hearing on the motion, counsel for the state made a proffer of the evidence the state expected to produce at trial, the essence of which was that Daniel’s mother was having difficulty caring for Daniel and two siblings and Daniel began staying in the home of Maudine Watson, a family friend. Ms. Watson asked the Department of Human Services to permit her to keep Daniel and that was granted. Thereafter Ms. Watson assumed the role of a parent to Daniel and that arrangement prevailed for some indeterminate period.
After the hearing the state’s proffer the circuit judge ordered Count I of the information dismissed:
Came the defendant, Francis Watson, and moves this court to dismiss Count I of the information. After considering all matters of law and fact, including proffers of evidence, and arguments of counsels, the court finds the evidence of the state to be insufficient and lacking as proof of the requisite legal relationship or status for the defendant to be guilty of Permitting Child Abuse.
The state brings this appeal pursuant to Ark. R. Crim. P. 36.10(b-c), relying upon a single point of error: The circuit court had no jurisdiction to grant the motion to dismiss the charge against Ms. Watson.
The state cites State v. Jamison, 277 Ark. 349, 641 S.W.2d 719 (1982), which bears marked similarities to the case before us. Jamison was charged with theft. He waived a jury trial and moved to dismiss, arguing that the facts would not constitute theft. Counsel informed the court of the facts, to which the parties stipulated, and the circuit judge ruled the conduct did not amount to a theft. The state appealed and we reversed and remanded. We quote from that opinion:
The court could have dismissed the charge because it did not state a criminal offense according to the law. (There was no challenge in that regard.) But there is no provision for dismissing a charge because the facts that will be presented do not amount to criminal conduct. Who decides what the facts are? The court was careful to get the parties to agree that the trial had not started, that is, double jeopardy could not be a defense if we reversed his decision. But if the trial had not started, how could facts be determined? The Court could not accept the “facts” unless it assumed the role of the fact finder, a posture he decided not to do. A.R.Cr.P., Rule 36.10 (Supp. 1981), which allows interlocutory appeals by the state, makes no provision for an appeal from a decision based on what the facts will be. Furthermore, in the crime of theft, there is always the element of intent, which of course has to be decided by the jury, or the court sitting without a jury. Certainly that issue was not resolved.
If the issue were simply whether it is was error for the trial court to dismiss the information because the prospective “facts” do not sustain the charge, the Jamison case would be solid precedent for the state’s position. But that is not the argument presented on appeal and the reason is apparent — it was not the point preserved for review. To remedy that predicament the state argues that the circuit court lacked jurisdiction to dismiss the appeal, citing Jamison, supra, and Hardcastle v. State, 25 Ark. App. 157, 755 S.W.2d 228 (1988). But neither of those decisions address, nor even mention, jurisdiction.
While we agree with the state that it was error to dismiss the subject count of the information based upon a proffer of “facts,” we do not agree that the court lacked subject matter jurisdiction. Jurisdiction is the power of the court to hear and determine a cause, including the power to enforce its judgment; it is the power to hear and determine the subject matter in controversy between the parties. Gland-O-Lac Co. v. Creekmore, Judge, 230 Ark. 919, 327 S.W.2d 558 (1959); Healey & Roth v. Huie, Judge, 220 Ark. 16, 245 S.W.2d 813 (1952); Lamb & Rhodes, v. Howton, 131 Ark. 211, 198 S.W. 521 (1917).
The state reasons that in a criminal case fact issues are decided by a jury, which of course is true. But that right is often waived in favor of a trial by the judge sitting as fact finder and jurisdiction does not stand or fall on whether Ms. Watson might have demanded a jury trial — a purely speculative issue at preliminary stages. The circuit court plainly had jurisdiction, irrespective of the type of trial which would later be conducted.
We do not suggest the state concurred in any manner to the dismissal of this case. But it is evident the state did not object on the basis now argued. The ground of the state’s objection, as we interpret the record, was that the proffered evidence was sufficient to sustain the allegation that Ms. Watson was legally charged with the care or custody of Daniel Toric. Had the state objected on the ground that the “facts” could be determined only by means of a trial and not by way of a proffer at a pretrial hearing, presumably the error would not have occurred.
Affirmed. | [
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Tom Glaze, Justice.
Appellant appeals from his conviction for rape of his twelve-year-old niece. He was sentenced to life imprisonment. His sole argument for reversal is that there is insufficient evidence to support the jury’s verdict. Appellant’s argument is without merit.
The court affirms where there is substantial evidence to support the verdict, Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978), and in determining whether substantial evidence exists, 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). In addition, the court has held that, in rape cases, the requirement of substantial evidence is satisfied by the rape victim’s testimony. Jones v. State, 297 Ark. 499, 763 S. W.2d 655 (1989); Houston v. State, 293 Ark. 492, 739 S.W.2d 154 (1987).
Appellant was convicted under Ark. Code Ann. § 5-14-103(a)(3) (1987) which provides a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Here, appellant was thirty-one years old and his niece was twelve years old at the time of the alleged offense.
The victim’s testimony was quite lengthy and detailed. She resided in an apartment with her mother, brother and Angel, a twenty-one-year-old mentally handicapped woman, who lived with the family. During this period, appellant commenced a series of episodes when he would touch his niece’s breasts, vagina and buttocks. The victim’s mother, who worked from 3:00 p.m. to 11:00 p.m., had asked appellant and his wife to look after the children, and most of these touching episodes took place during the mother’s absence. The victim testified that appellant held her so she could not get away when he touched her and would give her money afterwards. She said the appellant had been drinking and smelled like alcohol on these occasions and estimated this type of sexual conduct happened approximately ten times.
The victim said that the appellant did more than “touching” after she and her family moved into a house, which appellant and his wife later moved into in order to conserve money. According to the victim, appellant then began placing “his private part” in her anus and vagina. She vividly described how appellant “stuck his private part” in her “rear” and vagina and added that he did so a total of approximately fifteen times. She said that appellant told her that if she said anything, he would beat her and would try to kill her mother. When she tried to tell her mother one time, she said the appellant hit her on the back with a belt buckle.
The victim’s brother corroborated having seen appellant touch his sister on one occasion. And Angel, who was present at the last episode when appellant raped the victim, told the victim’s mother about the incident. The mother later found a condom by her daughter’s bed, and noticed stains in her daughter’s panties. She also related an incident when she awakened early one morning to find appellant on the couch with her daughter positioned with her head at appellant’s feet and her butt in his lap. Appellant jumped up from the couch, looked funny and went to his room. The mother said she thought then that something was wrong, but her daughter denied it. And finally, a doctor who examined the victim three weeks after the reported rape, testified the victim’s hymen was not intact.
In his argument, appellant questions the credibility of the state’s witnesses and their accounts of what occurred. In sum, he contends their stories are unworthy of belief and fall short of substantial evidence. As we have already pointed out, the requirement of substantial evidence is satisfied by the rape victim’s testimony alone and that requirement was certainly met here. While her testimony required no corroboration, such corroboration evidence was furnished as well. Accordingly, we affirm the lower court’s verdict.
Pursuant to Ark. Sup. Ct. R. 11(f), we have reviewed the entire record and have found no other issues in this case that involve potentially prejudicial error to the appellant. | [
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David Newbern, Justice.
The appellant, Joe David Williams, and others represented by him (Williams group) own working interest mineral leases in two 20-acre tracts in Miller County. These tracts are part of the Rodessa Field which encompasses the oil producing Gloyd Formation. The Williams group established two wells on these tracts, Freedom A-l and Freedom Prospect. When this case arose, Freedom Prospect was not producing oil from the Gloyd Formation but Freedom A-l was. Sun Exploration and Development Company, now Oryx Energy Company, filed a petition before the appellee, Arkansas Oil and Gas Commission (AOGC), for the establishment of a secondary recovery water flood unit for the Gloyd Formation. This proposed unit included the leases of the Williams group. The Williams group refused to convert their leases voluntarily and opposed the compulsory unitization formulated at a series of hearings before.the AOGC culminating on May 24, 1988.
Williams appeared before the AOGC with counsel to object to the proposed unit, asserting that the formula developed by Oryx was unfair. Williams presented no expert testimony. During the hearing he cross-examined Oryx’s witnesses concerning the basis of the formula by which they proposed to distribute proceeds and charge expenses. Each witness insisted the formula was commonly used in the industry and that the computations were not unfair. The unitization petition was granted by a unanimous vote of the eight participating commissioners.
Williams filed a petition for injunctive relief in the Chancery Court on May 26, 1988, challenging the unitization order. A hearing was set, and discovery began. Oryx took a deposition of Williams’s potential expert witness, Henry Coutret, in which he said the basic formula for distribution of unit costs and income was fair but one aspect could be in violation of the law, depending on how it was interpreted. As Williams’s counsel interpreted it, it would be wrong. If interpreted in accordance with Oryx’s responses to interrogatories, it could be proper. By agreement of the parties, the unitization was held in abeyance pending the outcome of the trial. On the first date set for trial, January 25, 1990, Henry Coutret was present to testify on Williams’s behalf. On the day of trial, Oryx filed a motion to transfer the case to the Circuit Court, objecting to chancery jurisdiction and to the receipt of any additional evidence. The hearing was cancelled. The Chancellor later rejected the jurisdictional challenge by letter ruling on May 3,1990. He withheld ruling on the question of the scope of his review and asked that the parties provide briefs on the issue.
One week before the subsequently scheduled hearing, the Chancellor informed the parties he would receive evidence on the issue raised before the Commission, i.c., whether the formula was fair. Counsel for Williams, Don Gillaspie, had made it known to counsel for the Commission, William Wynne, that he would introduce additional testimony from Coutret. Coutret could not be present for the rescheduled hearing. Gillaspie told Wynne that if Wynne and Oryx’s counsel would set up a time to take Coutret’s deposition to be admitted in evidence, Gillaspie would participate at their convenience.
At some point Wynne agreed to participate in the taking of the deposition. Apparently Oryx’s counsel, Oliver Clegg, agreed to pay for the deposition. After consideration of the chancellor’s ruling concerning receipt of evidence, Wynne apparently decided the deposition was unnecessary under any circumstances. He did not convey this decision to Gillaspie. Wynne informed Coutret he would notify him on the Friday before the hearing but did not do so. At the scheduled June 7 hearing Gillaspie began by requesting that the Chancellor hold the record open for receipt of a deposition from Coutret. Counsel for the Commission and Oryx objected to the receipt of any evidence after the date of the hearing. The Chancellor ruled he would accept no additional evidence unless all parties agreed to it. Gillaspie renewed his request for the Chancellor to hold the record open. The request was denied. After review of the evidence, including the hearing before the Commission, the analysis from Coutret, and the discovery, the Chancellor found the Commission order to be fair and in conformity with the statutory scheme.
Williams has raised three points of appeal. First, he contends the Chancellor abused his discretion in refusing to receive additional evidence. Second, the order approved by the Commission fails to comply with the mandatory provisions of the unitization statute. Third, under the circumstances of this case, the unitization act permits a taking of private property without just compensation in violation of the Arkansas Constitution. The decree is reversed and remanded, as we find the first point to be meritorious, and the second one may have merit as well.
1. Receipt of evidence
Williams argues that, because counsel for the Commission and Oryx repudiated their agreement to permit the taking of the additional evidence in the form of a deposition of Coutret, the Chancellor erred by refusing to hold the record open. The issue was characterized by the Trial Court and argued here by the parties as whether the Court erred in denial of a continuance.
The rule is very clear that the granting or denial of a continuance is a matter within the sound discretion of the Trial Court, and such a ruling will not be disturbed unless the Court has abused that discretion. Smith v. City of Little Rock, 279 Ark. 4, 648 S.W.2d 454 (1983); Bolden v. Carter, 269 Ark. 391, 602 S.W.2d 640 (1980).
The Chancellor’s authority and scope of review in this matter are established by Ark. Code Ann. § 15-72-106(a) and (c) (1987) as follows:
Court review by aggrieved person — Injunction.
(a) Any interested person adversly affected by any statute of this state with respect to conservation of oil or gas, or both; by any provisions of this act; by any rule, regulation, or order made by the commission thereunder; or by any act done or threatened thereunder, and who has exhausted his administrative remedy, may obtain court review and seek relief by a suit for injunction against the commission as defendant or against the members of the commission by suit in the chancery court of the county in which the property involved is located.
(c) In the trial, the burden of proof shall be upon the plaintiff, and all pertinent evidence with respect to the validity and reasonableness of the order of the commission complained of shall be admissible. [Emphasis supplied]
Clearly the Chancellor is authorized to receive all pertinent evidence concerning the “validity and reasonableness” of the Commission’s order. Williams had the burden of presenting that evidence. In the lengthy discussion which took place in response to the motion to hold the record open on June 7 the Chancellor stated:
Gentlemen, when I wrote this letter on May 3rd, and Mr. Gillaspie, granting you the opportunity to proceed today and, of course, advising all of you that I wanted you to brief the issue which I felt was in question at the top of page two of my letter of May 3, the question in my mind was whether we reopened this thing for all evidence just as if we were hearing it for the first time, and, of course, as a trial de novo, or whether there was a limited scope of my review. I advised all three of you last week that I felt that the scope of my review was limited in regard to Arkansas Code 15-72-106C to a determination of whether the Arkansas Oil and Gas Commission had acted unreasonably in entering their Order of March 22, 1988. All of you understood that. No question in my mind but that I talked to each one of you and advised you of that. Gentlemen, this case has been set for today since shortly after May 3rd of 1990 for the purpose of introducing any further evidence that might be available to you. I advised you last week what I thought that evidence would or should consist of and what I would limit that evidence to. I think there has been ample opportunity on everybody’s behalf to have everybody ready to appear here today, and today, gentlemen, is the day that I’m going to receive evidence. And I’m not going to receive any additional evidence after today unless it’s by agreement of the parties. . . .
Gentlemen, again, this case was set for today shortly after within three or four days, certainly a week of May 3rd of 1990. When I advised you, gentlemen last week, I talked to you gentlemen last week on the telephone. I advised you that I did not expect additional testimony touching on other matters other than the reasonableness of the Order of the Arkansas Oil and Gas Commission. Today has been the day set for this hearing, today is the day that this hearing is going to be. Mr. Gillaspie, if you feel that because of the circumstances that have arisen that you are compelled to file a motion for continuance, and I am taking your statement as a motion for continuance, and I am denying your oral motion for continuance, and keeping with the recent decisions of the Arkansas Supreme Court, I think you should file a written motion for continuance, I am denying that motion for continuance. ... I understand completely what has taken place in this case, that does not get around the fact that this case has been set for at least a month.
The chancellor apparently failed to consider the fact that Wynne either did not fully appreciate the Court’s ruling with respect to scope or did not agree with the ruling and that Wynne subsequently made a unilateral decision concerning the need for additional testimony from Coutret. During the hearing Wynne confirmed Gillaspie’s assertions that he had agreed to arrange to obtain the deposition following the May 3rd letter and his subsequent change of heart as follows:
MR. WYNNE:
Now, as I understood the Court in his conversation with me and admittedly there has been some variations within the understanding of the three attorneys, but at least Mr. Clegg and I are in harmony that it was your position that you were willing not to foreclose, Mr. Gillaspie clarifying the record to the extent that it failed to include matters insofar as what was before the Commission at the time of the entry of the Order, but that you did not intend to open this record for the reception of testimony and evidence as it related to facts or circumstances subsequent to the date of the Order of the Commission which was entered effective May 24, 1988. . . .
I have never considered it my responsibility to engage Mr. Coutret or inquire as to his schedule when he is the expert for the Plaintiff and not the Defendant. In addition, Judge, the dialogue and conversation between Mr. Gillaspie and I concerning the evidential deposition of Mr. Coutret were all predicated upon the ruling which this Court made as to whether or not it would hear this matter de novo. If the matter was to be heard de novo, I certainly did tell Mr. Gillaspie of my willingness to arrange to schedule the evidentiary deposition of Mr. Coutret with the idea he would take the deposition since he would be sponsoring that witness’s testimony. But, the Court in its ruling has determined the question of constitutionality is not at issue. The matter is only one of reasonableness, and the pivotal points that are dispositive of the reasonableness of the Order if we limit the review to the record before the Court, that is the record that the Commission had that led to the adoption of the Order, then Mr. Coutret’s testimony touches upon the points that are critical to the issue to be determined. Now, what Mr. Gillaspie is in actuality concerned about, Judge, is he wishes to include within this record not evidence that was not available at the time of the hearing before the Commission, he wishes to introduce into this record through the evidential deposition of Mr. Coutret testimony concerning facts and circumstances as they have occurred from and after the issuance of Order reference 37-88.
Clearly Wynne considered the Chancellor’s ruling to mean that only evidence developed before the Commission or directly relating to that evidence was relevant, and he did not feel additional testimony from Coutret would be admissible by that standard.
The Chancellor was correct in ruling that the Statute would permit consideration of evidence developed subsequent to the Commission’s order which was pertinent to the issues raised. The testimony of Coutret as proffered by Williams would undoubtedly be relevant to that issue. In his written motion Williams proffered Coutret’s testimony, in relevant part, as follows:
14. If permitted to testify, Mr. Coutret would review the Unit Agreement, the Unit Operating Agreement, the data selected to be plugged in the basically fair formulae used therein, and would state that, under the evidence and factual background, the Order of the Commission is invalid and unreasonable.
Mr. Coutret would testify that the selection by intervenor of the period immediately following the production of the A. Capps well as the determining period to be used in calculations of the Phase I allocation among tracts was arbitrary and unreasonable and unfair to plaintiffs working interest owners. He would state that the data used resulted in a smaller allocation to Tract 33 was, at the date of the Order, producing some 30 %, rather than 12 %, of all oil produced in the Unit Area.
Mr. Coutret would testify that under the circumstances of this case the provision of Article 11 of the Unit Agreement that all unit expense shall be allocated on the basis of the unit participation factor in effect at the time such unit expense is charged is in direct and express violation of the statute which requires that unit expenses shall be apportioned on the same basis as production.
He would testify that the Order will require Tract 33 to pay some 14 times more in operating expenses than its Phase II allocation of production so long as oil is being allocated to Phase I production. He would testify that even if Article 11 were amended to provide for apportionment of operating expenses at Phase II rates on a per/barrel basis Plaintiffs working interest owners would be required to pay many times more in operating expenses than their fair share due to the operation of injection wells and additional producers for which they would be charged a percentage of costs and which would in no way benefit them as to Phase I production due to the monthly limit.
The Chancellor’s ruling oh admissibility of additional evidence bearing on the reasonableness of the AOGC order was correct. Wynne’s interpretation of the order as permitting only evidence taken before the AOGC was incorrect. The problem arises with the Chancellor’s willingness to accept further evidence only by agreement of the parties. If that be regarded as an exercise of the Chancellor’s discretion not to grant a continuance, we conclude it was an abuse of that discretion. On the record before the Chancellor it was clear that Wynne agreed with Gillaspie to schedule a further deposition with Coutret to be received in evidence, and his subsequent refusal to do so was a result of his misconstruction of the Statute and the Chancellor’s order concerning the evidence which could be received. It was unfair to make continuance or receipt of evidence dependent on agreement of the parties. It was apparent such agreement would not be forthcoming for a reason which, at best, resulted from a misinterpretation of law.
2. Compliance with the statute
Despite the error we find in point 1, we could affirm if we could conclude that the AOGC’s decision was fair and reasonable and that that conclusion would obtain regardless of the prospect of Coutret’s testimony. We cannot reach that conclusion.
Before discussing this point, a review of parts of the unitization formula is required. In testimony before the Commission it had been established that only 20 % of the oil reserves in the proposed unit could be recovered by primary methods. Expert testimony from Oryx showed the field’s primary reserve would be depleted in 1996, but secondary recovery unit operations would extend its productive life to 2006. The uncontradicted evidence showed that 288,000 barrels of oil represented the full recovery possible in primary reserves. Secondary reserves were set at 1.44 million barrels. All parties concurred that unitization of the field would be necessary and proper to prevent waste. The problem arose from the formula proposed to apportion the anticipated $6.1 million in expenses associated with unitization of the field. Oryx proposed a two-phase process designed to compensate all the parties having working interests, including the Williams group, for the remaining primary reserve in the first phase while charging each interest for its share of the expenses of developing the unitized field. In the second phase profit and expenses would be distributed and charged based on the participation of each working interest owner.
The key component of the proposal to which Williams takes exception is the allocation of expenses. Phase 1 of the unit would continue until all the primary reserves (288,000 barrels) had been recovered. The unit agreement contemplated the recovery of 3210 barrels of oil per month in primary reserves. The proceeds from these barrels would be assigned to each working interest owner based on Phase I tract participation. Any proceeds from recovery of oil above 3210 barrels would be assigned based on Phase II tract participation. Unit expenses were to be charged as follows:
11.1 Basis of Charge to Lessees. Unit Operator initially shall pay all Unit Expenses. Each Working Interest Owner shall reimburse Unit Operator for its share of Unit Expense. Each Working Interest Owner’s share of such Unit Expense shall be the same as its Phase II Unit Participation for the following items (a)-(d):
(a) items in the nature of capital assets including, without limitation, real property if acquired;
(b) acquiring, drilling, redrilling, equipping and reequipping water injection wells, pumping and pipeline facilities for such wells, and changing any injection interval in any such well;
(c) gathering lines and facilities and common tank batteries utilized or acquired for Unit Operations; and
(d) water purchased or otherwise obtained for inj ection purposes and the costs of injection thereof into the Unit Area.
All other Unit Expense shall be allocated upon the basis of the Unit Participation in effect at the time such Unit expense is charged to the Joint Account.
The final paragraph allocating expenses forms the basis of Williams’s statutory challenge to the formula.
In the initial analysis from Mr. Coutret’s deposition based on the data provided by Oryx from which they developed the formula, he concluded that the basic unitization formula was fair and equitable for the circumstances but that the proposed method of allocation of expenses was somewhat ambigious and potentially represented a gross inequity. Upon receipt of further information in the form of Oryx’s answers to Williams’s interrogatories Coutret stated the following in a letter to Gillaspie:
* * *
I can see why you are not clear as to exactly how they intend to allocate operating expenses between Phase I and Phase II when monthly production exceeds 3210 barrels. In reading the answer it sounds like they intend to apportion the operating charges to Phase I and Phase II participation relative to the monthly volumes of Phase I and Phase II production. Basically, my guess is (and it’s only a guess) they will use the following formula to allocate monthly operating expenses when production exceeds 3210 barrels in any month before total Phase I cumulative production (from January 1, 1987) is 288,000 barrels.
Charges=(Mo. Op. Cost)x(3210)x(Phase I factor)
Total Monthly Production
(Mo. Op. Cost)x(Total Monthly Prod.-3210)x(Phase II factor)
Total Monthly Production
This would mean that operating expenses would be allocated to working interest owners relative to their production during each Phase which is in conformance with the Arkansas statute.
* * *
It is apparent from Coutret’s analysis that the unit agreement and the order of the Commission embodying that agreement contain an ambiguity which would permit the unit operators to charge certain Phase II expenses which are incurred during Phase I at the Phase I tract participation rate while only assigning Phase II proceeds to the Williams group accounts. Mr. Coutret could only “guess” the formula to be used. Arkansas Code Ann. § 15-72-310 (1987) provides:
Order requiring unit operation — Contents.
The order requiring unit operation shall be fair and reasonable under all circumstances and shall include:
* * *
(2) An allocation, upon the basis agreed upon by the provisions of the unit operating agreement, to each separately owned tract, which for all purposes of this section and §§ 15-72-308, 15-72-309, and 15-72-311 — 15-72-322, may be a previously established drilling unit if the unit operating agreement so provided, in the unit area, its fair share of all of the oil and gas produced from the unit area and not required or consumed in the conduct of the operation of the unit area or unavoidably lost. No allocation formula shall be adopted by the commission and put into effect unless it is based on the relative contribution to the unit operation, other than physical equipment, made by each separately owned tract or previously established drilling unit;
* * *
(4) A provision that a part of the expenses of unit operation, including capital investments, be charged to each separately owned tract in the same proportion that the tract shares in the unit production. The expenses chargeable to a tract shall be paid by the person or persons who, in the absence of unit operation, would be responsible for the expense of developing and operating the tract;
While production being allocated based on the contribution to unit operation in Phase II is not at issue, the potential allocation of expenses at a Phase I tract participation level for Phase II expenses when such expenses are incurred during Phase I seems clearly to violate the statute. That this may occur was established by testimony before the Commission. During the hearing on May 24, 1988, Darlynne Hayden, unitization manager for Oryx, testified:
Q. [Mr. Gillaspie]: We would be paying point one two one three (.1213) percent of the operating expenses for each barrel, whether it was above or below the three thousand two hundred ten barrels (3,210) per month that’s limited to Phase One, correct?
A.: Yes.
Q.: But we would be receiving as to the barrels over three thousand two hundred and ten only point zero zero eight eight (.0088), is that correct?
A.: For just that one tract.
Q.: That’s correct, is it not?
A.: Yes.
Q.: So we’d be paying at a rate, what, ten times what we’d be receiving for Phase Two oil?
A.: Yes. But also your investments in developing the unit are carried under Phase Two, which is a very, very low rate. So you’d be reaping the benefits of a lot of new wells out there at the point zero eight eight for your investment.
Q.: We’d be paying also, would we not, at the same rate in Phase Two for those units that you say are being donated to us by Sun? That point zero zero eight eight is the only way we can reap benefits in Phase Two and we pay on that basis, do we not.
A.: You pay, yes, that’s right.
* * *
Q.: Would you accept that it’s at least six-and-a-half years that we would be paying twelve point one three percent (12.13) of all the operating expenses for the entire year?
A.: Yes.
The formula, if interpreted to require the Williams group to pay expenses at a higher percentage rate than their percentage share in production, would violate the statute, and evidence on that question should have been received.
3. Taking of property
Williams contends that under the circumstances of this case the order of unitization amounts to a taking of private property without just compensation. The contention is easily answered. The unitization order and the statutory scheme provide that the interests of the working interest owners will be transferred to the unit producer for the use and benefit of the working interest owner. Article 10 (f) of the agreement so provides. Article 10 of the agreement later provides that on abandonment of unit operations the agreement terminates and the interests revert to the contracts in place affecting the separate tracts. The compensation for the transfer is a share of the proceeds from the field which would not be available without secondary recovery. There has been compensation and there is no merit in this argument.
Reversed and remanded.
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Steele Hays, Justice.
This is a wrongful death action against two physicians and a hospital based on claims of medical malpractice. The hospital, Jefferson Regional Medical Center, and one of the physicians, Dr. Carl Bell, were dismissed by summary judgment. The other, Dr. Leslie Sessions, was acquitted by a jury verdict. The personal representative has appealed, contending there were material issues of fact as to Dr. Bell and trial errors with respect to Dr. Sessions and the hospital. We reverse and remand as to Dr. Bell and Dr. Sessions, but finding no issues of fact affecting the hospital, we affirm in part.
In appeals from summary judgment our review is in conformity with the rule that we examine the facts in a light most favorable to the appellant, and any doubts or inferences must be resolved against the moving party. Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988).
On the late afternoon of October 24, 1984, Misty Sturgis called on her neighbor, Mr. William E. Thomas. She found him in acute distress: sweating profusely, weak and trembling, extremely flushed, experiencing nausea, chest pain and numbness in his left arm. At her insistence Thomas agreed to go to the Jefferson Regional Medical Center and Ms. Sturgis drove him there, arriving around five o’clock. Ms. Sturgis asked the emergency room personnel to do an EKG. Another friend, Ms. Bernadette Allen, arrived and the two stayed with Thomas waiting for the doctor to see him. Ms. Allen testified to Thomas’s chest pain, as well as generalized pain. After some two hours Thomas left the emergency room, though whether he left of his own volition or was refused admission, is a disputed question. Thomas collapsed later that evening, was returned to the emergency room at 9:43 p.m., and expired shortly thereafter. Death was attributed to myocardial infarction.
Suit for wrongful death was brought by special administrator, alleging that Drs. Bell and Sessions conferred by telephone and concluded, without taking a proper history or performing proper tests and examinations, that Thomas was dehydrated due to alcoholism, resulting in a misdiagnosis and an abandonment in that Thomas was refused admittance to the hospital. Tests performed after Thomas’s second trip to the emergency room showed his blood alcohol content to be zero.
The hospital’s motion for summary judgment, which we will address momentarily, was based on a contractual agreement between the hospital and a group of physicians, including Dr. Sessions, operating as independent contractors. The summary judgment motion of Dr. Bell was grounded on the absence of genuine issues of material fact and in considering the motion the trial court had before it the depositions of Dr. Bell, Dr. Sessions, Ms. Rebecca Amos, a registered nurse on duty at the emergency room at the time in question, Dr. Wayne Smith, Misty Sturgis, Bernadette Allen and various records from the emergency room.
Since Dr. Sessions had no authority to admit patients to the hospital, he consulted Dr. Bell by telephone. Dr. Bell had staff privileges at Jefferson Regional and had treated William Thomas some four years earlier. Dr. Sessions recorded Mr. Thomas’s complaints as: “hypertension, drinking alcohol for several days, unable to walk without holding on to something, shakes in his legs and headaches.” He also observed nausea and vomiting. Dr. Sessions maintains that he and Dr. Bell concurred in recommending that Mr. Thomas be admitted to Jefferson Regional Medical Center for detoxification, or sent to Riverview in Little Rock for a twenty-eight day program of detoxification and rehabilitation. They further contend that Thomas refused either and left the hospital against medical advice.
Dr. Bell claims his only involvement in the case “consisted of a phone call from Dr. Sessions” wherein Dr. Sessions inquired of Dr. Bell whether he would be willing to admit Mr. Thomas as a patient to the hospital for purposes of detoxification. But there may have been additional phone calls and, as we will see in a moment, opposing medical opinion from which a jury might infer that Dr. Bell’s participation was more involved than merely approving Mr. Thomas’s admittance to the hospital, which in itself is a sharply disputed issue of fact. Indeed, Dr. Sessions testified that he and Dr. Bell discussed symptoms, treatment, and concurred in the view that Mr. Thomas should be admitted to the hospital. The two doctors were unequivocal in their contention that Mr. Thomas refused admittance to Jefferson Regional, but Ms. Amos was not so certain — her deposition states that the only conversation she had with Dr. Bell related to Riverview, the implication being that she and Dr. Bell did not discuss Jefferson. Moreover, the records of the emergency room do not reflect that Thomas refused hospitalization at Jefferson Regional, only that he “Refuses transfer” (a reference to Riverview).
Whether Thomas refused transfer to Riverview is, of course, immaterial. The pivotal issue is whether he was offered admission at Jefferson Regional. Appellees insist that is undisputed, but when that contention is weighed against other proof, both direct and circumstantial, we are unable to sustain the argument. The fact that Drs. Bell and Sessions maintain that Thomas did refuse, hardly renders the issue undisputed. Sanders, Adm’x. v. National Old Line, Ins. Co., 266 Ark. 247, 538 S.W.2d 58 (1979). Moreover, there are other material questions of fact, namely, whether adequate diagnostic procedures were followed, whether Thomas’s symptoms, properly diagnosed, would have indicated cardiac distress, whether, assuming Thomas refused to be hospitalized, his decision was based on an informed understanding of his condition, whether Drs. Bell and Sessions consulted, and whether early detection of myocardial infarction would have affected the likelihood of recovery.
The order of summary judgment observes that “the only competent evidence of what Dr. Bell said during the telephone conversation came from Dr. Bell, Dr. Sessions and/or Nurse Amos, who all three stated that Dr. Bell did authorize admission to Jefferson Regional Medical Center.” But that presumes the credibility of interested parties and focuses on the proof of the movant while disregarding opposing proof, exactly the reverse of how the proof should be weighed in deciding a motion for summary judgment. Some courts apply the “scintilla of evidence” rule which requires a court considering summary judgment to admit the truthfulness of all evidence favorable to the nonmovant, thereby removing all issues of credibility from the case, and determine if there are any facts from which a jury could reasonably infer ultimate facts upon which a claim depends; if so, the case must be decided by the factfinder. Schoen v. Gulledge, 481 So.2d 1094 (S. Ct. Ala. 1985). Our own rule is similar:
The object of summary judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied.
Rowland v. Gastroenterology Assoc., P.A., 280 Ark. 278, 657 S.W.2d 536 (1983).
Nor can we agree there was no other proof as to Dr. Bell’s involvement in the case. It is conceded that because Dr. Sessions had no authority to admit patients to the hospital he called Dr. Bell, who had treated'Thomas. Dr. Bell was consulted by telephone not once, but as many as three times concerning Thomas’s condition, symptoms and diagnosis and, according to Dr. Sessions, they concurred as to the proper course of treatment. If a jury were to agree with appellant’s contention that Mr. Thomas was misdiagnosed and “abandoned” at the emergency room, it would also be within its ambit to decide whether Dr. Bell was privy to that action, giving Dr. Bell’s assertions to the contrary such credence as it thought appropriate. We have said that summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis might reasonably be drawn and reasonable minds might differ. Walner v. Bozaw, 290 Ark. 299, 718 S.W.2d 942 (1986).
When the proof on the motion for summary j udgment is given its strongest probative force favorable to the appellant, we cannot say no doubts exist on the issue of whether Thomas refused an offer of admission to the hospital. The plaintiff was prepared to prove that Thomas experienced symptoms consistent with cardiac distress, went to the emergency room and remained for two hours, returned home and collapsed and expired from myocardial infarction. Records of the emergency room make no mention of Thomas refusing admission at Jefferson Regional, only that he refused transfer to Riverview. Ms. Sturgis testified that she was told by emergency room personnel to take Mr. Thomas home, “there was nothing the hospital could do for him”, and Ms. Allen testified she was told by a doctor at the hospital that Mr. Thomas had been drinking or was drunk, that he had an alcohol problem and “needed to be taken to Little Rock because there was nothing they could do for him.”
In addition to that evidence, there is the deposition of Dr. Wayne Smith. Dr. Smith expressed the opinion that William Thomas presented classic signs of myocardial infarction at the emergency room: weakness, confusion, inability to walk, pain in chest and shoulder. Dr. Smith was particularly critical of the emergency room records pertaining to Mr. Thomas’s initial visit which he labelled “grossly incomplete.” He testified that the records generated on the evening of the 24th and at the hospital and Dr. Bell’s office the following morning “belie the contention that Mr. Thomas was offered admission at Jefferson Regional Medical Center.”
We recognize that the trial court later excluded Dr. Smith’s testimony. But we disagree with that conclusion. Dr. Smith is a graduate of the University of Arkansas School of Medicine and has engaged in the general practice of medicine in Arkansas for twenty years. For the past eleven years he has limited his practice to his office, prior to that he engaged in general hospital duties including emergency room practice. Dr. Smith does not specialize in cardiology but regularly treats patients with cardiac problems and considers himself competent and qualified to render an opinion in the field of cardiology. Dr. Smith completed a general internship at St. Vincent Infirmary and has attended continuing medical education courses on a regular basis, including those dealing with cardiology. In short, Dr. Smith was not without the qualifications to testify as a medical expert based on training and experience and appellees have not demonstrated wherein Dr. Smith was incompetent to meet the moderate standards applicable to expert witnesses. Dildine v. Clark Equip. Co., 282 Ark. 130, 666 S.W.2d 692 (1984).
Having read Dr. Smith’s deposition testimony in its entirety, we are more than satisfied that he was knowledgeable by training and experience to recognize both the symptoms of cardiac distress and the appropriate medical response, whether occurring in an emergency room or an office setting. Appellees contended below that Dr. Smith’s general office practice rendered him lacking in the expertise of emergency room procedures, but they have not shown us why a specialization in emergency room operations is essential in determining whether Mr.Thomas’s complaints and history were properly evaluated and appropriate tests and examinations performed, all of which strike us as rather basic to the science of medicine. In the absence of such showing, we see no reason why a medical witness of Dr. Smith’s experience and background is not competent to express pertinent medical opinions.
We addressed a similar contention in Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986), where the trial court permitted a general practitioner to state his opinion that good medical care was exercised by a specialist treating the appellant. The issue there was whether the appellee, a neurosurgeon, should have ordered an immediate CT scan rather than waiting until the following day. On appeal, appellant argued that no general practitioner is qualified to testify with regard to the standard of skill that must be met by a specialist such as a neurosurgeon. We rejected that contention, citing with favor reasoning from the case of Evans v. Ohanesian, 38 Cal. App. 3d 125, 112 Cal. Rptr. 236 (1974):
Nor is it critical whether a medical expert is a general practitioner or a specialist so long as he exhibits knowledge of the subject. Where a duly licensed and practicing physician has gained knowledge of the standard of care applicable to a specialty in which he is not directly engaged but as to which he has an opinion based on education, experience, observation or association with that specialty, his opinion is competent. [Citation.] The reason for not requiring specialization in a certain field is obvious. Physicians are reluctant to testify against each other. [Citations.] Consequently, when an expert can be found, it is immaterial whether he is a general practitioner or a specialist providing he has knowledge of the standard of care in any given field; otherwise, the plaintiff could never prove a case against a specialist unless he had an expert of the particular specialty, and the plaintiff would never be able to sue a general practitioner unless he had a general practitioner who was willing to testify as an expert. [Citation.]
Having held that a general practitioner is qualified to express an opinion as to the standard of skill of a neurosurgeon as to the urgency of a CT scan, we could hardly say that an experienced general practitioner who regularly sees patients with cardiac problems may not state an opinion concerning the early indications of myocardial infarction. While we recognize the trial court’s discretion in this area, that discretion is not absolute and for the reasons we have noted, we hold that it was misused in this instance.
Turning to Jefferson Regional Medical Center and Northwestern National Insurance Company, its carrier, summary judgment was ordered on the strength of an agreement between the hospital and a group of physicians, including Dr. Sessions, practicing as Arkansas Doctors Emergency Group, Inc. (ADEG). The agreement obligated the corporation to furnish professional coverage for emergency room services and contained a provision reading: “[N]othing in this agreement shall be construed to constitute any member or employee of the corporation as an agent or employee of the hospital, nor shall anything herein be construed to constitute the Hospital as agent for ADEG.”
In granting summary judgment to Northwestern National Insurance Company, Jefferson Regional Medical Center’s insurer, the trial court found that Dr. Sessions was an independent contractor and not an agent of Jefferson Regional Medical Center. Appellant has not shown us the error of that finding. See Norton v. Hefner, 132 Ark. 18, 198 S.W. 297 (1917); Runyan v. Goodrum, 147 Ark. 481, 228 S.W.2d 397 (1921). In Medi-Stat, Inc. v. Kusturin, 303 Ark. 45, 792 S.W.2d 869 (1990), we held that a business corporation may be liable for the acts of a physician under the doctrine of respondeat superior, but that principle has not been extended to charitable corporations. Moreover, a number of factors existed in Medi-Stat which are not present here.
During trial, appellant called Dr. John Dale Dunn to refute the contention that William Thomas refused admission to Jefferson Regional Medical Center. Counsel for Dr. Sessions objected on the grounds that Dr. Dunn had no qualifications for addictionology and the objection was sustained. On appeal appellant renews his argument that Dr. Dunn was qualified to give expert medical testimony and we agree. Dr. Dunn is a member of the American College of Emergency Physicians, is board certified in emergency medicine and family practice and is Chief of Emer gency Services and Director of Emergency Physicians at a Brownwood, Texas, hospital. He has been practicing medicine for sixteen years and practicing emergency medicine predominately since 1981. With respect to alcoholism Dr. Dunn testified more than fifty percent of the adult visits to emergency rooms nationwide are caused by alcoholism. He stated:
As a board certified Emergency Physician, I am called upon in my profession capacity to treat alcohol withdrawal. Alcoholics have most of their problems socially and family wise in the evenings or on weekends. (TR. 2258) Emergency Departments is frequently the only place they can go as most alcohol treatment programs are daytime programs. The Emergency Department is the place where alcoholics show up when they have an emergency either related to their medical problems or alcoholism. With alcoholics, because of their patterns of lifestyle and the times that they have problems, the Emergency Department is the most common place they might receive care for emergency conditions.
We can find no sound reason advanced by appellees as to why Dr. Dunn was not qualified to express an opinion with respect to the treatment of alcoholics in an emergency room setting. Ark. R. Evid. 702.
Two points remain — appellant argues that it was error to exclude the testimony of Ms. Christine Lalande, a claims representative for St. Paul Insurance Company, carrier for Drs. Bell and Sessions. Mrs. Lalande, in correspondence with counsel for appellant, had stated that intravenous fluids were administered to Mr. Thomas at the emergency room, an assertion which appellant evidently concedes is inaccurate. The proffered evidence was excluded as collateral and irrelevant and we cannot say the trial court’s discretion was abused by the ruling.
Lastly, appellant contends it was error to reject an instruction in accordance with AMI 1504. However, we do not address the argument as none of the instructions are abstracted and we will not search the record to determine that the exclusion of AMI 1504 was prejudicial to the plaintiff.
Affirmed in part and reversed and remanded in part.
Indeed, Ms. Amos’s trial testimony, though not germane to summary judgment, is even more explicit: “I don’t remember Dr. Bell saying that Mr. Thomas needed to be admitted at Jefferson. Dr. Bell only talked to me about admitting him to Riverview. (T. 2403). | [
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Robert L. Brown, Justice.
The appellant, Robin Kratzke, appeals from a judgment in her favor and against the appellee, Nestle-Beich, Inc., in the amount of $2,000. She argues that the verdict amount is clearly against the preponderance of the evidence and, further, that there was jury misconduct. Finding substantial evidence to support the verdict, we affirm the judgment.
On November 18,1988, Kratzke, who was driving her car in Little Rock, was hit from behind by a vehicle driven by an employee of Nestle-Beich. Damage to Kratzke’s car amounted to $63. Following the accident, Kratzke received considerable medical attention, including a stay in the hospital of more than two months. She alleged that the resulting paralysis, numbness in her arms and legs, and limitation in her mobility were directly attributable to the accident. She incurred total medical expenses of $47,060.12.
At trial, the appellee admitted liability, leaving damages as the sole issue to be decided by the jury. The jury returned a verdict of $2,000, and judgment was entered on October 22, 1990. Kratzke then moved for a new trial under Ark. R. Civ. P. 59(a) on grounds that the verdict for damages was clearly erroneous and that there was jury misconduct due to contact between the jurors and the appellee’s witnesses. The circuit judge denied the motion for a new trial.
We first consider the issue of error in the damage award. When a trial judge denies a motion for a new trial, the standard of review is whether the jury verdict is supported by substantial evidence. Reddish v. Goseland, 301 Ark. 527, 785 S.W.2d 205 (1990); Johnson v. Cross, 281 Ark. 146, 661 S.W.2d 386 (1983); Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982). In the case before us, Kratzke testified that she had her back and neck x-rayed in 1981, that she had a vehicular accident in 1983 requiring x-rays and hospitalization, and that she suffered a severe muscle pull from activity with her children in 1986. Her medical records reflect that she had similar back problems in 198 6 as complained ofinl988,andthatshehad been in the hospital in 1986 for two weeks.
Dr. James Raddin, an impact expert, testified that the records he reviewed demonstrated that Kratzke had been either subject to injury or was the victim of degenerative processes prior to the November 1988 accident. He found no objective reason for her paralysis and opined that the impact from the Nestle-Beich car traveling at about three miles an hour would not produce any psychological effect.
Dr. Thomas Fletcher, a neurological surgeon, declined to accept Kratzke as a patient. He testified that she suffered from a muscle spasm aggravated by a nervous state that operated to continue the spasm. He did not think that she had nerve root compression, and he could give no medical reason for her inability to walk or for the numbness in her legs or arms. In his opinion a bone spur and degenerative disc were preexisting conditions. He stated that her physical reaction was out of proportion to the actual injury.
Taken in sum, this evidence easily qualifies as substantial enough to support the jury’s verdict.
Kratzke also argues that there is a defined pecuniary measurement resulting from Nestle-Beich’s liability which is represented by her medical expenses of $47,060.12. The jury’s verdict of $2,000, according to Kratzke, is not supported by substantial evidence; in her view only the $47,060.12 is. We disagree, having held in other collision cases that the jury could well have decided that the medical expenses were attributable to preexisting causes and not to the automobile accident. See Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982); Warner v. Liebhaber, 281 Ark. 119, 661 S.W.2d 399 (1983). The mere fact that medical expenses have been incurred by the appellant and the additional fact that the appellee has admitted liability do not automatically translate into a damage award equivalent to those expenses.
For her second point, Kratzke asserts jury misconduct due to juror contact with the appellee’s witnesses and urges that this is sufficient reason for setting aside the verdict. Rule 9(d) of our Rules of the Supreme Court states that the appellant’s abstract should consist of “material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.” Kratzke refers in her brief to affidavits supporting juror misconduct but fails to abstract them. Under these circumstances, Rule 9 precludes us from considering this argument on its merits. See Turner v. Baptist Medical Center, 275 Ark. 424, 631 S.W.2d 275 (1982).
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David Newbern, Justice.
This appeal arises from Charles Griffin’s convictions of rape and burglary. He contends the Trial Court erred in: (1) allowing his prior convictions of kidnapping, theft, and burglary to be used for impeachment purposes, (2) not allowing him to waive the habitual offender bifurcated trial procedure, and (3) failing to grant a mistrial when a witness’s testimony indicated Griffin was incarcerated at the Department of Correction. We affirm the conviction.
There was evidence from which the jury could have concluded the following facts: Tracy Haynie and a friend were standing outside Haynie’s home when Griffin, who was traveling on foot, asked to use the bathroom. Mr. Haynie refused to take Griffin inside, but allowed him to use the yard. Haynie’s wife, Mattie, and a one-year-old son were inside. Haynie and his friend waited until Griffin had left the yard and had walked two blocks. They then left.
A little later, Mrs. Haynie heard knocking on the front door. She asked the identity of the person there but received no response. She then heard the person leave the front porch, and a few minutes later she heard beating on the side window. After the beating stopped, Griffin kicked in the front door, entered the house, knocked the telephone from Mrs. Haynie’s hand, and slapped her. Griffin told Mrs. Haynie her husband owed him money. Griffin then picked up the baby, threw him to the end of the couch, and raped Mrs. Haynie. Mrs. Haynie testified that Griffin told her he knew her from a bar. The Haynies denied prior acquaintance with Griffin.
Detective Ursery came to the Haynie home upon being informed Mrs. Haynie had been raped. He found Mrs. Haynie in an emotional state. She gave a description of her assailant, which was dispatched over police radio. Mrs. Haynie told Ursery the man was carrying a transistor radio. Officer Koutouc picked up Griffin, who was carrying a transistor radio, fourteen blocks from the Haynie home. Griffin said he was jogging and had just been with his girlfriend.
Griffin was taken to the Haynie home where Mr. Haynie identified him as the person who had been in the yard earlier. The officers placed Griffin under arrest and took him to the hospital where Mrs. Haynie identified him as her assailant.
Griffin said he had known Mrs. Haynie for three weeks prior to the incident and had had sexual relations with her three times. He stated Mrs. Haynie consented to sexual intercourse with him on the evening in question.
Griffin was charged as an habitual offender with burglary and rape. Defense counsel moved in limine to exclude evidence of Griffin’s prior convictions and to waive the habitual offender bifurcated trial procedure. Both motions were denied, and the jury found Griffin guilty of both charges and sentenced him to two forty-year prison terms.
1. Prior convictions
Griffin alleges the Trial Court erred by allowing his prior convictions to be used for impeachment purposes under A.R.E. 609(a)(1) (1991). He argues allowing the State to introduce convictions similar to the charged offense only to show he was a bad person likely to commit the offenses repeatedly was highly prejudicial.
We find no abuse of discretion. Rule 609(a)(1) provides in part that,
[f]or the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one year, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness.
The Trial Court has considerable discretion in determining whether the probative value of a prior conviction outweighs its prejudicial effect, and that decision will not be reversed absent abuse. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989); Pollard v. State, 296 Ark. 299, 756 S.W.2d 455 (1988).
When a defendant chooses to testify, we have consistently allowed prior convictions to be used for impeachment, even when the convictions are of crimes similar to the charged offense. In Pollard v. State, supra, the appellant was charged with theft and argued the Trial Court should have excluded his prior convictions of grand larceny under Rule 609(a)(1). The appellant’s proffered testimony would have placed his credibility in issue and contradicted the victim’s version of the facts. There was no abuse of discretion in ruling the probative value of the convictions out-weighed their prejudicial effect. See also Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982).
Griffin cites Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981), in support of his argument that the prejudicial effect of the prior convictions outweighed their probative value. In the Jones case we held that a prior plea of nolo contendere to rape of a child could not be used for impeachment pursuant to A.R.E. 609(a) in a case in which a similar offense was charged because the jury would be unduly prejudiced due to the nature of the offense. We wrote,
there are sometimes strong reasons for excluding such proof because of the pressure on lay jurors to believe that “if he did it before he probably did so this time.” [Citation omitted.] That is especially true in the case at bar, because sexual abuse of a child is a particularly shameful and outrageous crime.
In George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991), reh. denied, 306 Ark. 374-A, 818 S.W.2d 951 (1991), the defendant was accused of sexually abusing a small child, and the issue arose whether a previous conviction of a similar offense could be used to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident” as permitted by A.R.E. 404(b). The Trial Court admitted the evidence, and this Court affirmed, stating that the Jones case was overruled to the extent it conflicted.
The Jones case was not in direct conflict with the decision in the George case, although both dealt with prior convictions, because A.R.E. 609(a) (1) was specifically at issue in the Jones case, not A.R.E. 404(b). The issue in the Jones case, as here, was whether a prior conviction could be used for impeach-
ment rather than whether the prior conviction could be used to show motive, etc. We have, however, limited the Jones case to situations where the prior offense is likely to recur as the result of a perversion. For example, in Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983), Simmons was convicted of capital felony murder with kidnapping as the underlying felony. He argued the Trial Court erred by allowing, as impeachment, evidence of a prior kidnapping conviction and cited the Jones case. We held the Jones case was not controlling because kidnapping, unlike sexual abuse of minors, is not the sort of offense that one is apt to commit again and again as the result of a perversion. See also Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984).
In the case now before us, Griffin’s prior convictions which were admitted pursuant to A.R.E. 609(a)(1) were of kidnapping, theft, and burglary. There is no similarity to the facts in the Jones case, and we cannot say the Trial Court abused his discretion in permitting the impeachment.
2. Waiver of bifurcated trial
Griffin argues that, as he was to testify in his own defense thus subjecting himself to impeachment on the basis of his prior convictions, the bifurcated trial procedure did not benefit him and he should have been allowed to waive it.
A previously convicted defendant who testifies in his own defense runs a risk that prior convictions will be exposed to the jury twice, once during cross-examination and again during the sentencing phase of the bifurcated trial procedure. Arkansas Code Ann. § 16-90-205 (1987) governs the manner of trying defendants who have been previously convicted. It provides for a bifurcated trial and does not provide for waiver. It states the bifurcated procedure “shall” be adhered to in cases involving habitual criminals.
3. Mistrial
The Trial Court recognized that prejudicial error might have occurred as the result of the prosecutor asking a question tending to elicit from a witness the information that Griffin was incarcerated. The Court predicted, however, that the evidence would not prove to be prejudicial because prior discussion with counsel had indicated Griffin would take the stand and reveal he had been previously convicted and was incarcerated. The Court proved to be correct, and we find no prejudice.
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Steele Hays, Justice.
This is an appeal from a declaratory judgment entered in the Mississippi Chancery Court. The facts are not in dispute. On July 15,1970, the appellee, Alice Ramsey, purchased from D.S. and Elizabeth Laney a lot in Osceola, Arkansas, on Poplar Street. Ramsey executed a note and deed of trust to the Laneys for the purchase price in the sum of $4,500.00 payable at $40.00 per month.
On August 10, 1970, Alice Ramsey executed a warranty deed to Allen Walters for the Poplar Street property. The warranty deed omitted one of the calls so that the property was incorrectly described.
The deed from Ramsey to Walters provided for $10.00 consideration paid by Walters “and other good and valuable consideration, including, but not limited to, the payment of all sums due D.S. Laney on a Promissory Note dated July 15, 1970. . .”
On April 2,1990, the appellant, Robert Johnson, obtained a default judgment against Allen Walters arising from a motor vehicle collision. Thereafter, the Mississippi Circuit Court issued a writ of execution commanding the sheriff to recover from Allen Walters the amount of the judgment granted in favor of Johnson. The sheriff returned the writ nulla bona, however, when it was discovered that Allen Walters had record title to the Poplar Street property; a second writ of execution was issued.
On June 22, 1990, Walters executed a quitclaim deed to Alice Ramsey for the Poplar Street property. The deed recited that Allen Walters was reconveying the property that was “held in trust” by Walters on behalf of Alice Ramsey. Because of the reconveyance to Alice Ramsey the sheriff declined to execute the second writ of execution.
In August of 1990 Alice Ramsey filed a suit for declaratory judgment, naming Robert Johnson and the sheriff as defendants. Ramsey asked that she be declared the owner in fee simple of the Poplar Street property and for an injunction to prevent a sale of the property. The sheriff was subsequently released from the suit.
Robert Johnson filed a counter-claim against Alice Ramsey and a third party complaint against Allen Walters and his wife, Hattie Walters, alleging that he obtained a default judgment against Allen Walters and after the judgment was served on him, Walters transferred all his real and personal property to Hattie Walters or Alice Ramsey with the intent to hinder, delay or defraud Johnson. Johnson requested that all the transfers of real and personal property be void and that the sheriff be ordered to levy on all assets transferred by Allen Walters to Hattie Walters or Alice Ramsey or any proceeds derived from the transfers.
After a hearing the court found that certain real property belonging to Allen Walters was fraudulently conveyed to Hattie Walters and that Alice Ramsey was the owner in fee simple of the Poplar Street property. Robert Johnson appeals the finding regarding the ownership of the Poplar Street property.
In a letter opinion, the chancellor made the following findings: Allen Walters had no interest in the Poplar Street property because the property description in the deed from Ramsey to Walters is faulty; Walters does not seek reformation of the deed and Robert Johnson lacks standing to seek that relief; if the litigation was between Ramsey, the grantor, and Walters, the grantee, the court would find that the erroneous description in the deed should be reformed, and Walters had no interest in the Poplar Street property because there has been a total lack of consideration.
Johnson challenges the chancellor’s findings, arguing that consideration was not relevant to the deed’s validity and reformation was not necessary because the August 10th deed made specific reference to the deed of trust executed to Laney which contained a correct legal description of the property. Johnson insists that all essential elements of a deed were proven and the court should have found that Allen Walters owned the Poplar Street property.
We agree with Johnson that consideration and reformation are not necessary for the validity of this deed, however, the requirement of delivery of the deed is lacking, thus, the chancellor did not err in finding that the Poplar Street property did not belong to Allen Walters.
First, turning to the issues of consideration and reformation, we have said that inadequacy of consideration is not a ground for setting aside a voluntary conveyance. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Parker v. Baker, 254 Ark. 283, 492 S.W.2d 891 (1973); Whatley & Wright v. Corbin, 252 Ark. 561, 480 S.W.2d 142 (1972). We have also held that a deed will not be invalid for uncertainty of description if a proper description is furnished by reference to another instrument. Rye v. Baumann, 231 Ark. 278, 729 S.W.2d 161 (1959); See also Liggett v. Church of Nazarene, 291 Ark. 298, 724 S.W.2d 170 (1987); Sorrells v. Bailey Cattle Co., 268 Ark. 800, 595 S.W.2d 950 (1980).
The chancellor’s findings on reformation and consideration do not warrant reversal because there was no delivery of the deed. A deed is inoperative unless there has been delivery to the grantee and an essential element of a valid delivery is the grantor’s intention to pass title immediately, thus, giving up dominion and control of the property. Parker v. Lamb, 263 Ark. 681, 567 S.W.2d 99 (1978). Even though a presumption of delivery of a deed attaches when the deed is recorded, as occurred here, that presumption may be rebutted by other factors pertaining to the deed. See Crowder v. Crowder, 303 Ark. 562, 798 S.W.2d 425 (1990).
Alice Ramsey testified that in August of 1970 she became ill and did not think she was going to live. At that time she had several children living at home and decided Allen Walters would be the person who would maintain her property for her children. Speaking about the execution of the warranty deed to Walters, Ramsey stated, “. . .1 didn’t mean to give it to him then, I just meant for him to see after it so my kids could have somewhere to stay because there wasn’t nobody. . .1 didn’t have no relatives around and the kids was small.” Ramsey further testified that she paid all payments on the property as well as the property taxes. At trial the following exchange took place between Ramsey’s attorney and Allen Walters:
Q. Well, did you claim that you owned the property?
A. Well, I didn’t own it because I didn’t pay nothing on it. All I know is that she just put it over into my name on account of she was sick, she was having this problem.
Q. And you never have claimed to own the property?
A. No, sir. Never have claimed to own it. I haven’t paid nothing on it.
The testimony of Alice Ramsey corroborated by Allen Walters showed that Ramsey did not intend to give up dominion of her property. This testimony sufficiently rebuts the presumption of delivery of the deed. Consequently, Allen Walters did not receive any interest in the Poplar Street property.
Johnson argues next that the Chancellor erred in establishing Alice Ramsey as owner of the real property because she participated in a fraudulent transfer of the property. This argument fails because of the finding that delivery of the deed was lacking, therefore, there was no transfer of the Poplar Street property.
Johnson also raises an issue concerning laches, but, finding no reference at the trial level to this argument, we do not address it on appeal.
The appellant’s final argument is that Ramsey’s complaint should have been dismissed pursuant to Ark. R. Civ. P. 12(b)(6) because she was required to include Allen Walters as a party to her declaratory judgment because his interests would be affected by the proceeding. See Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980). Even if Ramsey should have named Walters as a party, that omission resulted in no prejudice to Johnson because in his counter-complaint and third party complaint he named Walters as a third party defendant to Ramsey’s declaratory judgment action.
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Robert L. Brown, Justice.
The sole issue in this appeal is whether a divorce or separation from bed and board constituted a final decree of divorce under Ark. Code Ann. § 9-12-317 (Supp. 1991) so as to dissolve automatically a tenancy by the entirety. We hold that the tenancy by the entirety was not automatically dissolved, and we reverse the chancery court.
The facts in this case were stipulated by the parties at trial. Howard W. Jones, who is now deceased, and his wife, Lola Mae Jones, who is the appellant, acquired some land in Bradley County by warranty deed dated October 16,1973. They held the property as tenants by the entirety. Much later, Lola Mae Jones, the appellant in this appeal, filed for divorce against her husband. She was denied an absolute divorce but was granted a divorce from bed and board by order dated November 9, 1988. The chancellor in the divorce from bed and board did not dissolve or in any way change the tenancy by the entirety in the Bradley County land in his decree.
Howard W. Jones died on February 19, 1990, and the personal representative of his estate, who is the decedent’s daughter and the appellee, claimed an interest in the Bradley County land. As a result of the claim, the appellant filed a petition seeking a declaratory judgment of her rights in the Bradley County land and asserted that she was sole owner of it by right of survivorship. The chancery court heard the petition on the stipulated facts and found that the divorce from bed and board automatically dissolved the tenancy by the entirety and caused the parties to hold the land as tenants in common. A declaratory judgment in favor of the estate was entered on March 21, 1991.
Our statutory law speaks directly to the issue of a dissolved tenancy by the entirety following a final decree of divorce:
When any chancery court in this state renders a final decree of divorce, any estate by the entirety or survivorship in real or personal property held by the parties to the divorce shall be automatically dissolved unless the court order specifically provides otherwise. In the division and partition of the property, the parties shall be treated as tenants in common.
Ark. Code Ann. § 9-12-317(a) (Supp. 1991). The question then becomes whether a divorce from bed and board, which is also known as a divorce a mensa et thoro, constitutes a final decree of divorce under the statute. We hold that it does not.
Legal authorities agree that a divorce from bed and board is a limited divorce as compared to an absolute divorce, or divorce a vinculo matrimonii, which severs the bonds of matrimony. Two centuries ago, William Blackstone, in his Commentaries on the Laws of England, termed the divorce from matrimonial bonds as “total,” which was distinguished from separation from bed and board which he termed “partial.” 1 Bl. Comm. 428, 429 (1765). Only in cases of total divorce is the marriage “declared null, as having been absolutely unlawful ab initio P Id.
Robert A. Leflar in his treatise on conflicts goes further:
A decree for judicial separation, which used to be called a divorce from bed and board, is not really a divorce at all. It does not destroy the marital status, which continues existent. The decree regulates personal rights of the spouse as to cohabitation, support, and the like, in relation to the still-continuing marital status.
Leflar, American Conflicts Law § 230, p. 638 (4th Ed. 1986).
Black’s Law Dictionary is even more exact in its definition of the two categories of divorce:
Divorce a mensa et thoro. A divorce from table and bed, or from bed and board. A partial or qualified divorce, by which the parties are separated and forbidden to live or cohabit together, without affecting the marriage itself.
Divorce a vinculo matrimonii. A divorce from the bond of marriage. A total absolute divorce of husband and wife, dissolving the marriage tie, and releasing the parties wholly from their matrimonial obligations.
Black’s Law Dictionary, p. 480 (6th Ed. 1990).
But it falls to George D. Thompson, in his distinguished treatise on real property, to discuss the ultimate issue in this case:
A divorce a mensa et thoro does not affect the unity of person and, hence, it does not turn a tenancy by the entireties into one in common. Since the estate by the entireties is dependent upon the oneness of the person of husband and wife, and not upon property rights, it follows that a decree of court cannot change the estate to a tenancy in common, unless it severs the marriage relation and makes the husband and wife two persons.
4 Thompson, Commentaries on the Modern Law of Real Property, § 1792, p. 132 (Repl. 1979).
We are mindful that there are certain attributes which are common to an absolute divorce and the limited divorce from bed and board. We have held that both categories of divorce, for example, rest upon the same grounds and may pertain to custody of children, maintenance, and alimony. See Myers v. Williams, 225 Ark. 290, 281 S.W.2d 944 (1955). Yet, in the Myers decision we made it abundantly clear that a divorce from bed and board did not affect the marriage ties; indeed, we quoted from Leflar on Conflicts to the effect that a divorce from bed and board was “not really a divorce at all” with respect to terminating the marital status. 225 Ark. at 292; 281 S.W.2d at 945; quoting Leflar, American Conflict Laws; see also Spencer v. Spencer, 275 Ark. 112, 627 S.W.2d 550 (1982) (concurringopinion); Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979).
We review Ark. Code Ann. § 9-12-317(a) and specifically its language that a “final decree of divorce” is necessary to terminate an estate by the entirety in light of the above. In construing this statute, we consider the revered treatises cited in this opinion and our own case law which distinguishes the absolute divorce from bonds of matrimony and the limited divorce from bed and board in no uncertain terms. We have no doubt, in light of this history, that the Arkansas General Assembly intended “final decree of divorce” to refer to an absolute divorce from the bonds of matrimony for purposes of dissolving a tenancy by the entirety by operation of law.
We further note in this regard that had the General Assembly intended to include divorces from bed and board as final decrees of divorce under § 9-12-317 (a), it would have been a simple matter to refer to such limited divorces specifically as it did in the marital property statute. See Ark. Code Ann. § 91-2-315(b)(3) (Supp. 1991).
We hold, therefore, that the chancellor clearly erred in finding that the tenancy by the entirety was automatically dissolved by the divorce from bed and board and further erred in granting the estate any interest in the Bradley County property. Upon the death of Howard W. Jones, the appellant took full title to the property by operation of law. Accordingly, the estate has no interest in it as a tenant in common.
Reversed. | [
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Per Curiam.
Bennie L. Fry, Jr., by his attorney, has filed a motion for rule on the clerk.
The motion admits that the record was not timely filed and that it was no fault of the appellee.
However, the motion does not state good cause for granting the motion as discussed in our per curiam, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979). If the attorney for Fry will concede that it was his fault that the record was not filed, or if other good cause is shown, then the motion will be granted. The present motion for rule on the clerk is denied. | [
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.
David Newbern, Justice.
In this case we interpret, for the first time, a provision in Ark. Code Ann. § 23-89-208 (1987) requiring “reasonable proof of all benefits” be made to an insurance company. The issue stems from a further provision of the Statute that the insurer is liable for sanctions if a claim is not paid within 30 days after receipt of “reasonable proof as to all benefits accrured.” We hold that sending a hospital bill, unaccompanied by any sort of signed application proving that the medical expense entitles the sender to an insurance policy “benefit” is not sufficient to satisfy the “reasonable proof’ requirement.
Oliver Roy, the appellant, was a pedestrian crossing a street when he was struck by Cheri Rogers’ car. The appellee, Farmers & Merchants Insurance Company [F & M], is Rogers’ insurer.
Roy was transported to Cleburne Memorial Hospital where his care resulted in a charge of $6911.75. F & M assigned the claim to Tim Pipkins of L & R Adjusting Company. A bill for ambulance services provided to Roy was delivered to Pipkins on January 17,1991. On February 1,1991 the hospital sent a bill to F& Mfor the entire amount of services rendered, $6911.75. The bill showed F & M as “payer” and recited that “The patient [Roy] was hit by a car on 1-15-91. The owner or the person who hit this patient is Bobby & Sheri Rogers.” No signature or other authentication appeared on the bill.
On March 5, 1991, Roy filed a complaint against F & M alleging that more than 30 days had passed since F & M received reasonable proof of Roy’s medical bill, and it had not paid the $5000 medical payments limit authorized by the policy. The complaint sought the policy limit of $5000 for medical payments, 12% penalty, interest, and attorney’s fees as permitted in § 23-89-208(f).
F & M confessed judgment for $5000 on March 19, 1991. The question of F & M’s liability for the interest, penalty, and attorney’s fees was submitted to the Trial Judge who found the statutory sanctions inapplicable because payment was made within 30 days of the date Roy’s application for benefits was received by F & M.
Roy challenges the Trial Court’s interpretation of the Statute alleging the Court erred in it’s determination that “reasonable proof’ was not sent more than 30 days before payment. We agree with the Trial Court that sending a hospital bill is not sufficient.
The Statute provides:
Payments.
(a) Payment under the coverages enumerated in § 23-89-202(1) and (2) shall be made on a monthly basis as benefits accrue.
(b) Benefits for any period are overdue if not paid within thirty (30) days after the insurer received reasonable proof of the amount of all benefits accruing during that period.
(c) If reasonable proof is not supplied as to all benefits accrued, the portion supported by reasonable proof is overdue if not paid within thirty (30) days after the proof is received by the insurer.
(d) Any part or all of the remainder of the benefits that is later supported by reasonable proof is overdue if not paid within thirty (30) days after the proof is received by the insurer.
(e) In the event the insurer fails to pay the benefits when due, the person entitled to the benefits may bring an action in contract to recover them.
(f) In the event the insurer is required by the action to pay the overdue benefits, the insurer shall, in addition to the benefits received, be required to pay the reasonable attorneys’ fees incurred by the other party, plus twelve percent (12%) penalty, plus interest thereon from the date the sums became overdue.
The Trial Court wrote:
It appears to this Court that the mere mailing or submission of a hospital bill alone to an insurer is not sufficient to establish “reasonable proof’ of benefits accruing. An application by an injured person would need to be submitted along with a medical authorization and medical bills. This would allow the insurer to possess the basic information to investigation the claim.
The Court finds that the PIP application was dated 2-15-91 and was faxed by the Plaintiffs attorney to the Defendant’s claim adjuster, Tim Pipkins, on February 16, 1991, as reflected in the statement for professional services rendered. Reasonable proof of benefits was received by the Defendant on February 16, 1991. The benefits were received by the Plaintiff on March 14, 1991. The benefits were paid within thirty (30) days after the proof was received by the Defendant. The benefits are not overdue under A.C.A. § 23-89-208 (f).
Roy argues the Trial Court has created a requirement not found in the statute and contrary to legislative intent. True, there is no specific requirement in this subsection of the Insurance Code which requires submission of an application for benefits prior to payment of benefits, but “reasonable proof of benefits” means more than proof of a charge or loss.
Roy correctly asserts the basic rule of statutory construction to which all other interpretive guides must yield, and that is to 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 a statute is clear, it is given it’s plain meaning, Cash v. Arkansas Comm’n on Pollution Control & Ecology, 300 Ark. 317, 778 S.W.2d 606 (1989), and we do not resort to a search for legislative intent. Legislative intent must be gathered from the plain meaning of the language used. Hinchey v. Thomasson, 292 Ark. 1, 727 S.W.2d 836 (1987).
Roy’s further argument, that the lack of a statutory requirement of an insurance application or claim form showing “proof of loss” implies legislative intent not to require an initial showing by a claimant is not persuasive. The requirement is “reasonable proof . . . as to all benefits accrued.” Black’s Law Dictionary 158, (6th. ed. 1990) defines “benefit” for contract purposes as follows:
When it is said that a valuable consideration for a promise may consist of a benefit to the promisor, “benefit” means that the promisor has, in return for his promise, acquired some legal right to which he would not otherwise have been entitled, [citation omitted] “Benefits” of contract are advantages which result to either party from performance by other.
Because a “benefit” is an advantage arising only as a result of some action on the part of another, a requirement of a showing of the occurence of that activity is implicitly required to determine whether there are “benefits.” The hospital bill showed the amount of the charge or loss incurred by Roy, but a loss only becomes a benefit for Roy if he is legally entitled to recover under the policy.
The reason for enactment of a Statute like the one in question is encouragement of prompt payment of no fault insurance claims. See Hagains v. Government Employees Ins. Co., 150 N.J. Super. 576, 376 A.2d 224 (1977). While there is an annotation dealing with the varying statutory provisions having to do with presenting proof of a no fault claim, there are very few cases that even come close to being on point with the one before us. See Annot., Automobile Insurer’s Liability for Statutory Excess Interest for Delayed Payment of No-Fault Claim, 14 A.L.R. 4th 761, § § 2 (a), 4 (b) (198 2). We agree with the statement made by the Judge in the Hagains case, a reported trial court decision, that no fault insurance provisions should be interpreted liberally to prevent injured persons from having to bear the burden of payment while the insurer considers contesting a claim with no basis for doing so. Even so, it would be wrong to say the insurer must pay a claim based on presentation of a bill without the claimant asserting in writing or perhaps through counsel that he or she is entitled to a policy “benefit.” It is not inconsistent with the remedial purpose of the legislation to require such an assertion along with the documentation.
Affirmed.
Glaze, J., not participating. | [
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Steele Hays, Justice.
The question presented by this appeal is whether the law of Arkansas gives one municipality eminent domain over land in another municipality. We hold that it does.
The appellants, George and Irene Cowger, own property in the City of Belleville. The City of Danville, in conjunction with the State Department of Aeronautics, filed an action against them in the Circuit Court of Yell County seeking condemnation of 10.56 acres for the construction of an airstrip. The City of Belleville indicated its approval of the project by the adoption of Resolution No. 7-27-87 authorizing the construction of the airport.
The Cowgers brought this action in Pulaski Chancery Court against the cities of Danville and Belleville, the Department of Aeronautics, and officials of both cities. The complaint alleged that Danville was illegally constructing a municipal airport across lands belonging to the Cowgers in violation of various Arkansas statutes and the Federal Civil Rights Act of 1871, 42 U.S.C. § 1983. The Cowgers asked for an injunction and a judgment declaring the actions of the defendants to be unlawful.
The defendants moved for dismissal of the complaint under Ark. R. Civ. P. 12(b)(6), failure to state a claim, and Rule 56, summary judgment. Hearings were held and further amended pleadings were submitted, and the trial court subsequently dismissed all claims.
The Cowgers appeal from the order of dismissal. They first assert the trial court erred in finding that Ark. Code Ann. § 14-360-101 (1987) authorized Danville to exercise its power of eminent domain over lands in Belleville for use of the property as an airport. That section reads:
Cities of the first and second class and incorporated towns in the State of Arkansas may acquire and own airports or flying fields, which may be located either within or without the corporate limits of the cities or towns.
The following section, Ark. Code Ann. § 14-360-102 (1987), Acquisition of Property, provides:.
(a) The real property for municipal airports or flying fields may be acquired by gift, purchase, or by the exercise of the right of eminent domain, which is granted to cities for this purpose.
(b) The procedure for the exercise of the right of eminent domain shall be that prescribed by law for the exercise of this power by railroads.
The Cowgers also contend the language of § 14-360-101, providing that cities can acquire and own airports (“within or without the corporate limits of the cities”) is an insufficient expression by the legislature to empower one municipality with eminent domain over another, and, in any case, should not be allowed.
It is widely held that cities and other political subdivisions of a state may be authorized to acquire land by eminent domain. 26 Am. Jur. 2d Eminent Domain § 19 (1966). And, when acting pursuant to statute, municipalities may condemn lands beyond their borders, even within the boundaries of another municipality. Id. Schiller Park v. Chicago, 26 Ill.2d 278, 186 N.E.2d 343 (1962); Howard v. City of Atlanta, 190 Ga. 730, 10 S.E.2d 190 (1940).
As stated in J. Sackman, Nichols on Eminent Domain § 2.24 (1985):
A municipal corporation is a creature of the state designed to operate as a local government over a limited area. Generally a municipal corporation is confined to such area and is without power to acquire or hold real property beyond its territorial limits unless the power to do so is expressly given by the legislature. . . . The legislature may confer upon a municipality the power to acquire and hold real property outside its territorial limits and in connection with such power to effect such acquisition by eminent domain.
Although the weight of authority leans toward the general principle set forth above, there is a judicial tendency toward the proposition that, unless a municipality is expressly prohibited from so doing, it may acquire real property beyond its territorial limit for legitimate municipal purposes. . . .
Such acquisition outside the corporate limits of the condemnor may be of private property situated in another municipality and has been sustained, also, with respect to property devoted to a public use within another municipality.
To the same effect see 11 E. McQuillan, Municipal Corporations §§ 32.11, 32.15, 32.16, 32.66, 32.72 (1985).
The Cowgers insist that a grant of the power of eminent domain by one municipality over another should not be allowed, but they cite no authority and our own research has produced none. Rather, as noted above, the general rule is that one municipality can have such power over another. There are cases dealing with whether condemnation will lie where the intended use by the condemnor municipality conflicts with a public use asserted by the condemnee municipality. See Nichols, supra', Annotation, Condemnation — of Public Entity’s Land, 35 A.L.R. Fed. 1293 (1971); 26 Am. Jur. 2d, supra. Flowever, in this case we are not confronted with conflicting public purposes, the only question is whether the language of the statute, § 14-360-101, invests Danville with the power of eminent domain over private property within the City of Belleville.
The only authority we find interpreting language similar to our statute fully supports the trial court’s conclusions. The statute in Schiller Park v. City of Chicago, supra, was virtually identical to the pertinent part of § 14-360-101. That statute empowered every municipality with a population of 500,000 or more to establish and maintain public airports upon “any land either within or outside the corporate limits of the municipality.”
The Schiller court observed that the statute was similar to one construed in Howard v. City of Atlanta, supra, where it was held that unless there were words of limitation on the phrase, “within or without the territorial limits of the municipality,” the power of eminent domain extended even to other municipalities. The court in Schiller approved the following language from Howard:
If the condemning municipality acts in good faith, ‘the fact that the other municipality may be deprived of the right to tax or police the property so taken is merely the express result of the exercise of the power so granted, and does not constitute reason why the act should be construed as denying the powers.
Adding:
It may be conceded that the power of one municipality to condemn land in another municipality is an unusual or extraordinary one. But as we have indicated, the legislative intention to confer it is expressed clearly enough, and as is the case with other aspects of the eminent domain power, the courts will afford protection against any abuse thereof. . . .
No convincing reason has been advanced for reading into the unqualified statutory language an exception as to territory within some other municipality. . . .
We find these cases persuasive and, accordingly, we affirm the trial court on this point.
The Cowgers also contend that eminent domain requires the consent of the city within whose boundaries the condemned property lies. But we do not find that to be the law. The general rule, as we have seen, is that one municipality may assert eminent domain against lands in another municipality. Beyond that, courts have upheld eminent domain without the consent of the condemnee and even over its objection. See Schiller Park v. Chicago, supra. Thus, consent of the condemnee municipality is not a prerequisite to eminent domain.
Another point of contention involves the resolution of the City of Belleville authorizing the construction of the airport. The Cowgers maintain the resolution violates that part of art. 12, § 4 of the Arkansas Constitution which denies authority to municipal corporations to pass “any law contrary to the general laws” of the state. The chancellor declined to address the argument because of having held that § 14-360-101 provides the authority relied on for condemnation, thus rendering the argument abstract. For the reasons already noted, we believe that ruling by the trial court was correct.
Another assignment of error concerns the trial court’s dismissal of the Cowgers’ complaint for failure to state a claim under 42 U.S.C. §§ 1983 and 1988. A number of sub-issues are raised: The Cowgers were deprived of due process, state statutory schemes were violated, and fraud by municipal officials deprived them of property without due process.
The due process argument is directed toward the Danville eminent domain action. But, for reasons already seen, the eminent domain proceeding is authorized by statute and no constitutional violation has been demonstrated. If the argument goes to a denial of just compensation, the appellees correctly point out that the Fifth Amendment does not require payment prior to the taking, nor does it necessarily require a pre-taking hearing. Williamson Co. Regional Planning Commission v. Hamilton Bank, 473 U.S. 182 (1985).
The violation of statutory schemes argument has been addressed above and even if there were a violation it would not give rise to a § 1983 cause of action unless the violation were constitutional. Virden v. Roper, 302 Ark. 125, 788 S.W.2d 470 (1990); Baker v. McCollam, 443 U.S. 137 (1979).
We find no error in the trial court’s dismissal of the claim of fraud, as the complaint does no more than declare conclusively that the mayor “defrauded” the plaintiffs, with no attempt to state facts upon which relief could be granted. Ark. R. Civ. P. 12(b)(6).
The Cowgers also raise an argument concerning the nature of the property interest which is the subject of the condemnation proceeding. The gist of the argument is that § 14-360-102(b) provides that procedure for municipal airport condemnation shall be that prescribed by law for railroads, which is found in Ark. Code Ann. § 18-15-1202 (1987):
(a) Any railroad, telegraph, or telephone company, organized under the laws of this state, after having surveyed and located its lines of railroad, telegraph, or telephone, in all cases where the companies fail to obtain the right-of-way over the property by agreement with the owner of the property through which the lines of railroad, telegraph or telephone may be located, shall apply to the circuit court of the county in which the property is situated. Application shall be made by petition to have the damages for the right-of-way assessed, giving the owner of the property at least ten days notice in writing of the time and place where the petition will be heard.
[The statute provides additional procedures for condemnation]
The Cowgers urge that because of the references in § 18-15-1202, to “right-of-way,” Danville is limited to a right-of-way interest in its condemnation under §§ 14-360-101 and 102. We disagree with that interpretation. The substantive grant of eminent domain is clearly contained in § 14-306-101 and 102, that cities may “acquire and own airports” by “eminent domain.” The statute then provides succinctly that the procedure shall be as prescribed by law for railroads. The first rule in interpreting a statute is to give the words an ordinary and usually accepted meaning. Garrett v. McDonagh, 303 Ark. 348, 796 S.W.2d 582 (1990). And where the legislation is clear, we have no authority to construe a statute. Townsend v. State, 292 Ark. 157, 728 S.W.2d 516 (1987).
For the reasons stated, the order appealed from is affirmed.
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Donald L. Corbin, Justice.
Appellant Leslie Ann Grable challenges an order of the White County Chancery Court modifying the child support obligation of appellee James Grable, Jr. We affirm.
The parties were divorced by a decree entered December 7, 1987. The divorce decree granted custody of the Grables’ five minor children to Leslie Grable, and ordered James Grable to pay $300 per week in child support. Since entry of the original support decree, Mr. Grable has accrued support arrearages in excess of $32,000. At the time Mr. Grable filed his petition for modification on January 28, 1991, he was incarcerated at the White County Detention Center for failing to comply with the support payment conditions set out in an August 27,1990 agreed order of contempt and modification. The August 27, 1990 order had increased Mr. Grable’s weekly support obligation to $370 based on his take-home income of $864 per week from his job at Wayne Phillips Trucking Company. The order also directed Mr. Grable to pay a weekly sum of $100 toward his support arrearages.
Mr. Grable’s January 28, 1991, petition for modification requested a reduction in his weekly support obligation based on his assertion that he had been “laid off’ from his job at Wayne Phillips Trucking Company. On February 1, 1991, the court entered an order finding Mr. Grable in contempt of the August 27,1990 order. The order conditioned Mr. Grable’s release from jail on a cash payment of $2,500 and the establishment of a wage assignment from his new employer. The order further provided that all the provisions of previous child support orders would remain in full force and effect.
The February 1, 1991 order was entered after Mr. Grable had filed his petition for modification, but before the court had held a hearing on this petition. The court did not conduct a hearing on Mr. Grable’s petition until March 20, 1991. At the March 20 hearing, Mr. Grable presented evidence regarding his change in employment. Based on this evidence, the chancellor found a change in circumstances existed, and reduced Mr. Grable’s weekly child support obligation as of March 22, 1991, to $220 plus a $30 weekly payment toward previous arrearages. The chancellor entered this order on May 8, 1991.
Leslie Grable appeals from the May 8,1991 order reducing Mr. Grable’s child support obligation. Mr. Grable contends that Mrs. Grable’s arguments are meritless, and that he should be awarded attorney’s fees and costs in conjunction with this appeal. We affirm the order of the chancellor, and deny appellee’s request for attorney’s fees and costs.
Appellant’s first allegation of error is that the reduction of appellee’s child support obligation violates Ark. Code Ann. § 9-14-234(b) (Repl. 1991). Section 9-14-234(b) provides in perti nent part:
(b) The court may not set aside, alter, or modify any decree, judgment, or order which has accrued unpaid support prior to the filing of the motion. [Emphasis supplied.]
In the instant case, appellee James Grable petitioned for modification of his child support obligation on January 28,1991. At that time, Mr. Grable owed appellant Leslie Grable approximately $33,000 in support arrearages. Mrs. Grable contends that because Mr. Grable had accrued unpaid support, section 9-14-234(b) precluded him from seeking any modification. We disagree.
In Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), this court interpreted section 9-14-234 as an effort by the Arkansas Legislature to comply with funding qualification regulations set out by the United States Department of Health and Human Services. The pertinent regulation in the instant case is codified at 45 C.F.R. § 303.106 (1989) under the section entitled “Procedures to Prohibit Retroactive Modification of Child Support.” With respect to state regulations regarding modification of child support orders, the federal regulation provides as follows:
(a) The State shall have in effect and use procedures • which require that any payment or installment of support under any child support order is, on and after the date it is due:
(3) Not subject to retroactive modification by such State or by any other State except as provided in paragraph (b) of this section.
(b) The procedures referred to in paragraph (a)(3) of this section may permit modification with respect to any period during which there is pending a petition for modification, but only from the date that notice of such petition has been given, either directly or through the appropriate agent, to the obligee or (where the obligee is the petitioner) to the obligor.
The paragraph (b) exception to the general federal regulation prohibiting retroactive modification of child support orders is precisely the condition for which the statutory language “prior to the filing of the motion” provides. We believe section 9-14-234(b)’s language indicates our legislature’s intent to incorporate both the general federal rule regarding modification and the exception to this rule. Consequently, we hold that section 9-14-234(b) prohibits only the modification of child support orders which retroactively affect the time period before the petition for modification was filed and proper notice given to the opposing party.
In the instant case, the order entered on May 8, 1991, reduced appellee’s child support obligation as of March 22,1991. The order did not modify any child support obligations owed by appellee prior to March 22, 1991. In fact, the May 8 order specifically stated that appellee’s arrearage remained at $32,901.46 and was accruing interest at an annual rate of 10%. Given that appellee filed his petition for modification on January 28, 1991, the order reducing appellee’s child support obligations as of March 22 did not violate section 9-14-234(b) since this order affected only obligations that were antecedent to the filing of appellee’s petition.
Appellant’s second argument for reversal is that the chancellor abused his discretion in reducing appellee’s child support obligation based on a change of circumstances. On January 28, 1991, appellee petitioned the court to modify his support obligation because he had been “laid off’ at his place of employment. Appellee’s petition was prompted by the chancellor’s January 25, 1991 order finding appellee in contempt for nonpayment of child support payments and ordering him incarcerated until his arrearages were purged. On February 1, 1991, the chancellor entered an order specifically finding, among other things, that appellee should be released from incarceration upon paying $2,500 and stating that the provisions of previous orders regarding child support “shall remain in full force and effect.” The order entered on August 27,1990 had established appellee’s weekly obligation at $370 plus payments of $100 applied against arrearages. Appellant argues that because the February 1 order was subsequent to appellee’s petition for modification, the chancellor was precluded from modifying appellee’s support obligation based on a change of circumstances that occurred prior to entry of the February 1 order. We disagree.
Appellee actually filed his petition to reduce his child support obligation during the time he was cited and found in contempt for failure to pay child support. Under these circumstances, he was unable to seek to have the August 27,1990 child support order modified. Gilmore v. Gilmore, 239 Ark. 1140, 396 S.W.2d 936 (1965). However, after appellee paid $2,500, he was released .from jail. At that time, he appropriately sought a reduction in his child support obligation at a hearing on March 20,1991, which was his first opportunity to show he had been laid off from his employment and was no longer able to pay the previously ordered $470 weekly amounts. Appellant responded by requesting the chancellor to find appellee in contempt for additional arrearages. At the March 20 hearing, appellee testified that he left his previous place of employment at Wayne Phillips Trucking Company because the company was facing bankruptcy. Appellee further testified that his weekly income at his new place of employment averaged between $350 and $400. The chancellor relied on the appellee’s evidence presented at the hearing in reducing appellee’s weekly obligation to $220.
In sum, while appellee had obtained his new job at the time the February 1 order was entered, he could not have a hearing to present evidence supporting his petition until March 20, 1991. Based upon these facts and circumstances, we cannot say the chancellor erred in reducing appellee’s weekly child support obligation and setting the amount he did.
Appellant’s final argument is that the chancellor erred in granting affirmative relief to appellee. Appellant argues that the chancellor should have denied affirmative relief to the appellee because the appellee came to the court with “unclean hands” and because the appellee’s change in employment was voluntary.
Appellant’s “unclean hands” argument is based on the equitable maxim that he who seeks equity must do equity. In this case, appellant argues that because appellee had failed on multiple occasions to abide by court orders, appellee was estopped from seeking modification of his support obligation. We believe that the repeated contemptuous conduct of appellee may well have justified a refusal by the chancellor to afford affirmative relief to appellee. However, the purpose of invoking the clean hands doctrine is to protect the interest of the public on grounds of public policy and for the protection of the integrity of the court. 30 C.J.S. Equity § 93 (1965); Roark v. Roark, 34 Ark. App. 250, 809 S.W.2d 822 (1991). Consequently, application of the doctrine depends on the chancellor’s discretion as to whether the interests of equity and justice require application of the doctrine. 30 C.J.S. Equity § 90 (1965). As the chancellor was in the better position to determine the facts and weigh the competing interests in this case, we cannot say that he abused his discretion in declining to estop appellee from seeking modification of his support obligation.
Appellant based her final challenge to the chancellor’s grant of affirmative relief on the fact that appellee’s change in employment was voluntary. Appellant relies on this court’s recognition in Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988), of a trial court’s prerogative to impute income to a supporting spouse who voluntarily changes employment based on that party’s earning capacity. However, in Grady we also cautioned that a trial court’s decision on whether to impute income must be based on the facts and circumstances of each case because situations exist where income reductions are reasonable and justifiable. Id. at 98, 747 S.W.2d at 79.
In the instant case, appellee testified that he left his previous employment because the company was facing bankruptcy. He also testified that while his new employment was substantially similar to his former job, his current weekly income averaged only $350 to $400. After hearing appellee’s testimony, the chancellor expressed his cognizance of the Grady case, yet stated “the Court also has to be somewhat realistic in setting support as to what someone can or cannot do.” The chancellor went on to summarize appellee’s testimony regarding the financial condition at appellee’s former place of employment. Based upon the appellee’s testimony concerning his weekly income at his current place of employment, the chancellor reduced appellee’s weekly support obligation of $220.
This court has held that the amount of child support lies within the sound discretion of the chancellor, and we will not disturb the chancellor’s finding absent an abuse of discretion. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990); Grady, supra. Given the chancellor’s explicit explanation in this case regarding his perception of both the law and the facts necessitating modification of appellee’s support obligation, we cannot say that the chancellor’s decision constituted an abuse of discretion.
The appellee has asked this court to award attorney’s fees and costs in conjunction with the appeal. Ark. Sup. Ct. R. 24(d) provides that in chancery cases the court may assess costs according to the merits of the case. Appellee argues that he is entitled to costs and attorney’s fees because appellant’s arguments are “clearly meritless.” We disagree.
While this court does not agree with the arguments advanced by appellant, we cannot say that her arguments are “clearly meritless.” This court has not previously addressed the precise arguments raised by appellant, and no evidence indicates that appellant brought her appeal for any improper purpose.
In equitable actions, costs on appeal are largely within the sound discretion of the reviewing court. 20 C.J.S. Costs § 159 (1965). In exercising our discretion to determine whether costs or attorney’s fees are appropriate, this court has also indicated that it will consider the economic status of the parties. See LeFevers v. LeFevers, 240 Ark. 992, 403 S.W.2d 65 (1966). Mrs. Grable is a mother of five who works forty hours a week in a grocery store for a weekly take-home income of $154.16. Based on Mrs. Grable’s economic status and our disagreement with appellee’s contention regarding the merits of Mrs. Grable’s arguments, we decline to award costs and attorney’s fees in this action.
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David Newbern, Justice.
The appellant, Fran Norton, was convicted of cruelty to animals. She contends the evidence was insufficient, some of the evidence should have been suppressed due to violation of the Fourth Amendment and Ark. R. Crim. P. 15.4, and in any event, she should not have been convicted on more than one count as she was charged with only one count. We hold the evidence was sufficient, there was no violation of the Fourth Amendment, and Ms. Norton was properly charged and convicted of two counts of the offense. The conviction is affirmed.
The conviction resulted from activities of Ms. Elaine Occhipinti, who described herself as a “field officer” of the North Central Arkansas Humane Society. Ms. Occhipinti had visited the Norton premises and observed malnourished and poorly maintained animals. She attempted unsuccessfully to work with Ms. Norton to solve the problem.
Ms. Occhipinti ultimately complained to the prosecutor, and an arrest warrant for Ms. Norton issued. Baxter County Sheriff’s Officer Clippinger was sent to Ms. Norton’s residence to make the arrest. Ms. Occhipinti and two other members of the Humane Society arrived at the property at approximately the same time as Officer Clippinger. At Ms. Norton’s request the Humane Society personnel were asked by Officer Clippinger to leave the property and did so.
Immediately after Ms. Norton was removed by Officer Clippinger, Ms. Occhipinti and company called in a veterinarian and entered the property. They seized a number of rabbits and goats they determined to need immediate care.
Ms. Norton was convicted in Municipal Court of cruelty to animals. She appealed to the Circuit Court where she moved to suppress evidence resulting from the “search” of her property, including photographs which were taken and the testimony of the veterinarian concerning the condition of the animals seized. Her suppression motions were denied on the ground that no constitutionally prohibited search had occurred, and the de novo trial resulted in conviction.
1. Sufficiency of the evidence
The test for sufficiency of the evidence is that it must be of such force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force the mind to go beyond speculation or conjecture and is not satisfied by evidence which gives equal support to inconsistent inferences. This court views the evidence in the light most favorable to the appellee, and we look only to the evidence which supports the verdict. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).
Ms. Norton refers us to her testimony that she loved her animals, that she knew their personalities, and that the veterinarian testified she had sought help by asking for medications when the animals were ill. She also points to the testimony of the veterinarian that not all the animals were in critical condition.
Arkansas Code Ann. § 5-62-101 (1987) provides:
Cruelty to animals.
(a) A person commits the offense of cruelty to animals if, except as authorized by law, he knowingly:
***
(3) Subjects any animals in his custody to cruel neglect. . . .
Prosecution witnesses testified that the goats were in such discomfort from long hooves that many were walking on their knees. Photographs introduced in evidence make this condition obvious, and the veterinarian’s testimony established that walking on the knees also caused pain to the animals. His testimony also established that the rabbits found alive in cages were in discomfort. Cruel neglect is obviously displayed in the photographs of the hooves and distended udders of the goats found on the property. Photographs showed many dead rabbits.
Ms. Norton contends she should not have been found guilty of a “knowing” offense because the condition of the animals was the result of her financial inability to care for them. The definition of “knowingly” is found in Ark. Code Ann. § 5-2-202(2) (1987):
A person acts knowingly with respect to his conduct or the attendent circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.
The evidence was sufficient to show Ms. Norton must have been aware that she allowed the animals to reach a deplorable condition.
2. Suppression
Ms. Norton argues the evidence and testimony should have been suppressed because Ark. Code Ann. § 5-62-112 (1987) authorizes humane society personnel to initiate the issuance of search warrants, and thus Ms. Occhipinti’s failure to obtain one makes the search illegal. She also argues a violation of Rule 15.4 in that the items seized were not listed by the “officer” conducting the search and given to her and to the Court.
Both arguments hinge on whether Ms. Occhipinti and those who accompanied her to Ms. Norton’s property were officers or agents of the State. The Fourth Amendment’s prohibí tion against unreasonable searches and seizures is inapplicable to searches conducted by private citizens, Winters v. State, 301 Ark. 127, 782 S.W.2d 566 (1990), and Rule 15.4, by its terms, applies only to an “officer” making a seizure. The Trial Court found that no officer of the law conducted any search and, therefore, no search warrant was required, a conclusion with which we agree.
Ms. Norton’s argument is that Ark. Code Ann. § 5-62-113 (1987) authorized Ms. Occhipinti to make arrests, Ark. Code Ann. § 5-62-112 (1987) authorizes one who has the power to arrest to conduct a search, and thus Ms. Occhipinti was a State officer when she searched the Norton property, photographed it, and seized the distressed animals.
Arkansas Code Ann. § 5-62-113 (1987) authorizes an agent of any “society . . . incorporated for the prevention of cruelty to animals, upon being appointed by the president of the society” to make arrests of persons violating the cruelty law. There is no evidence that Ms. Occhipinti, or any of the persons who accompanied her to Ms. Norton’s property, had received an appointment from the president of the North Central Arkansas Humane Society, or any other such groups to make arrests. There is thus no showing that they could have obtained a search warrant as “officers.”
Ordinarily the State is in the posture of having to prove a warrantless intrusion was not in violation of the Fourth Amendment, Dominguez v. State, 290 Ark. 428, 720 S.W.2d 703(1986); however, the initial burden of showing one’s constitutional rights were invaded is on the party challenging the search. Pritchard v. State, 258 Ark. 151, 523 S.W.2d 194 (1975). Before Ms. Norton could assert state action in violation of her Fourth Amendment right, it was her burden to establish a state officer, as opposed to a private citizen, conducted the search.
Her inability to show that Ms. Occhipinti was a state officer is also fatal to her claim of violation of Rule 15.4.
3. Conviction on two counts
Ms. Norton argues the Trial Court erred by convicting her of two counts of cruelty to animals although she was charged with only one count in the Municipal Court and appealed only one count to the Circuit Court. The docket sheet from the Municipal Court shows Ms. Norton was charged with two counts, apparently one count was for the rabbits and one was for the goats. It states a trial was held and she was convicted. Her notice of appeal to the Circuit Court simply appealed the conviction without specifying further. We note that Ark. Code Ann. § 5-62-101 (a) (3) (1987) provides that one may be found guilty of cruelty to animals if one “[sjubjects any animals in this custody to cruel neglect. . . .”
We have no doubt that two counts were charged and that at least that many were justified.
Affirmed.
Corbin, J., dissents. | [
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Tom Glaze, Justice.
This case is another of a recent number of cases involving the interpretation of the new juvenile transfer statute, Ark. Code Ann. § 9-27-318 (Supp. 1991). Appellant had five juvenile cases pending against him in chancery court when the prosecutor moved to transfer two of these cases to circuit court. One case contained a felony theft-by-receiving count and the other case involved two felony counts of breaking or entering into two vehicles. A capital felony murder charge had also been filed against the appellant prior to the transfer hearing in this case, but the trial court specifically stated it did not consider that murder charge when it ruled on the state’s motion to transfer. After a hearing on the state’s motion, the trial court transferred the cases to circuit court. In this appeal, appellant claims the trial court erred (1) in failing to allow him ten days notice before the hearing, (2) in finding sufficient evidence existed to support the transfer and (3) in rejecting his argument that § 9-27-318 is unconstitutionally vague.
In his first argument, appellant cites Ark. Code Ann. § 9-27-325(f) (1987) which in relevant part provides that the Arkansas Rules of Civil Procedure shall apply to all juvenile court proceedings and the Arkansas Rules of Criminal Procedure shall apply to delinquency proceedings. Accordingly, he submits that, under ARCP Rule 6(c), the prosecutor’s transfer motion in this case was required to have been served on appellant no later than ten days before the time specified for the hearing. Appellant argues that because he was given only four days notice of the hearing scheduled for the prosecutor’s motion, the trial court abused its discretion in disallowing appellant additional time to prepare and respond to the state’s case.
By its own language, Rule 6(c) is not inflexible, and in fact, provides that for cause shown, the court may provide for a time other than the ten-day period set out in the Rule. In any event, our Rules of Civil Procedure clearly provide that court proceedings should not be disturbed because of a technical error which resulted in no prejudice. Robinson v. Abbott, 292 Ark. 630, 731 S.W.2d 782 (1987); see also ARCP Rule 61. Stated another way, the court has held that error is no longer presumed to be prejudicial, and it will not reverse for error unless prejudice is demonstrated. Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986); cf., Purser v. Corpus Christi St. Nat’l Bk., 258 Ark. 54, 522 S.W.2d 187 (1975) (where Purser was not given the ten-day period to respond to the bank’s motion for summary judgment, this court upheld the trial court’s premature entry of the judgment because it was manifest that the error was not prejudicial); see also Keenan v. American River Transportation Co., 304 Ark. 42, 799 S.W.2d 801 (1990). And finally, Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984); citing McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), is our seminal case on this point where this court held no longer is it presumed that simply because an error is committed it is prejudicial error. See also Gage v. State, 295 Ark. 337, 748 S.W.2d 351 (1988); Wheat v. State, 295 Ark. 178, 747 S.W.2d 112 (1988).
In the present case, appellant fails to show that he suffered prejudice. At the hearing, he never suggested that the abbreviated or four-day notice given him prevented him from presenting any witnesses. Nor did he proffer any testimony or evidence that he could, or intended to, present if he had been given additional time.
Although appellant argues the prosecutor was also hampered by the trial court’s ruling to proceed with the hearing on the prosecutor’s motion, the record fails to bear out appellant’s argument. While the prosecutor offered no testimony, he entered into a number of stipulations with the appellant, and based on those stipulations, we believe the prosecutor clearly showed by clear and convincing evidence that the transfer of appellant’s cases was warranted. Bradley v. State, 306 Ark. 621, 816 S. W.2d 605 (1991).
Under Ark. Code Ann. § 9-27-318(e) (Supp. 1991), the trial judge must consider the following factors before deciding whether to transfer a juvenile’s case:
(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.
As we have stated repeatedly, the trial court need not give equal weight to each of the foregoing factors and proof need not be introduced by the prosecutor against the juvenile on each factor. Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991); Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991); reh. denied, 304 Ark. 402A, 805 S.W.2d 80 (1991); Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986). The standard of review in juvenile transfer cases is whether the trial judge’s finding is clearly against the preponderance of the evidence, and findings of fact by the trial court will not be set aside unless clearly erroneous. Bradley v. State, 306 Ark. 621, 816 S.W.2d 605.
At the hearing, appellant and the prosecutor stipulated to seven state motions that outlined previous charges and convictions against appellant. The charges ranged from loitering to theft and robbery offenses. The parties agreed that appellant was first convicted of theft and placed on probation in 1987. That probation was later revoked because of another theft of property charge. The parties further stipulated that appellant had been on home attention and had been committed to the Office of Youth Services on three or four occasions — which included robbery charges filed in January of 1989. The state also underscored the other offenses pending before the trial judge. Those cases involved alcohol, cocaine and carrying a weapon.
The foregoing stipulations and offenses unquestionably support the trial court’s finding that appellant exhibited a repetitive pattern to commit felony offenses and reflected he possessed character traits, a prior history and a mental maturity indicating he is beyond rehabilitation. In addition, the stipulated evidence reflects that the offenses committed by the appellant have become increasingly more serious. In view of the above, we are unable to say the trial court was clearly erroneous in transferring appellant’s cases to circuit court.
Before leaving appellant’s foregoing arguments, we address his objection made below, and argued on appeal, that the trial court erred by admitting into evidence the findings of fact and conclusions of law entered in an earlier case against appellant. Those findings included a 1988 psychological report reflecting the appellant “had a poor response to probation and home attention and that placement in a more restrictive environment may be indicated.” Appellant correctly points out that the report did not necessarily reflect his current psychological disposition and the trial judge erred in taking judicial notice of it.
We agree with appellant that judicial notice may not be taken of the record in a separate case. Leach v. State, 303 Ark. 309, 796 S.W.2d 837 (1990); see also Southern Farmers Assn., Inc. v. Wyatt, 234 Ark. 649, 353 S.W.2d 531 (1962). However, while we agree that the trial court erred in taking judicial notice of the psychological report in issue, we conclude the error was harmless. Aside from the report’s improper admission into evidence, we have thoroughly discussed hereinabove the stipula tions and evidence that we hold support the trial court’s transfer of appellant’s cases to circuit court. We will not reverse for error unless prejudice is demonstrated. Peoples Bank & Trust Co., 290 Ark. 589, 721 S.W.2d 659 (1986).
In his final argument, appellant argues that provisions (b) (2) and (d) of § 9-27-318 are conflicting, and as a consequence are unconstitutional for vagueness. Basically, appellant contends that neither the chancery court nor the circuit court under these two provisions appears to have the final say as to which one should exercise jurisdiction. Appellant postulates that the initial court, be it chancery or circuit, could transfer the juvenile case to the second court’s jurisdiction only to have the second court return the proceeding to the initial court for trial.
Although appellant told the trial court he believed § 9-27-318 was unconstitutionally vague, he never mentioned the argument he raises now. For that reason, it is questionable as to whether this issue was preserved for appeal. In any event, appellant concedes the hypothetical situation he poses here did not occur below and for that reason alone, he lacks standing to raise the constitutionality of (b)(2) and (d) of § 9-27-318. See Burrow v. State, 282 Ark. 479, 669 S.W.2d 441 (1984).
For the reasons above, we affirm the trial court’s decision to transfer appellant’s case to circuit court.
Holt, C.J., Newbern and Brown, JJ., dissent.
The report is not abstracted, and our only knowledge of what it contains is from our review of the trial court’s comments at the hearing and the parties’ arguments in their briefs. | [
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Jack Holt, Jr., Chief Justice.
This is a tort case, certified to us from the court of appeals, in which we are faced with differentiating between the status of one who is an “invitee” and one who is merely a “licensee.”
On July 4, 1989, the appellant, Kimberly Tucker, was severely burned in an accident at the home of her fiance, James Sullivan, the appellee. Ms. Tucker had been residing with Mr. Sullivan since mid-May of that year. Ms. Tucker alleged that as she was washing and drying clothes, she kicked over a gas can, spilling gasoline on her jeans. Realizing what she had done, she decided to go and change; before doing so, however, she started the dryer. Ms. Tucker failed to realize the dryer was a gas dryer, which had an open flame near her feet. The guard plate had been removed. The gasoline ignited, causing severe injuries.
Ms. Tucker filed suit against Mr. Sullivan, alleging he failed to use ordinary care to maintain the premises in a reasonably safe condition, and that he knew of the danger caused by the proximity of the gasoline to the unguarded gas dryer, but failed to warn her.
Mr. Sullivan moved for partial summary judgment, asking the trial court to declare that, at the time of the accident, Ms. Tucker was a licensee on the premises. Mr. Sullivan’s theory was that Ms. Tucker was either a tenant on the premises, since she paid bills and living expenses, or a social guest, and, under either classification, she would be deemed a licensee, rather than an invitee, under Arkansas law.
The trial court granted Mr. Sullivan’s motion, finding that since Ms. Tucker’s living arrangement with Mr. Sullivan was for social purposes, she could not be considered an invitee. This holding resulted in the dismissal of Ms. Tucker’s ordinary negligence claim since a landowner owes only a duty to refrain from injuring a licensee through wanton and willful conduct. The trial court found, as a matter of law, that Mr. Sullivan’s conduct did not rise to this level. The parties proceeded to trial on the issue of Mr. Sullivan’s duty to warn Ms. Tucker and the jury was instructed on this issue in accordance with the duty owed a licensee. A verdict was returned in favor of Mr. Sullivan.
Ms. Tucker now appeals, claiming the trial court erred in granting Mr. Sullivan’s motion for partial summary judgment and in instructing the jury that she was a licensee as a matter of law. We affirm.
In considering Mr. Sullivan’s motion for pretrial summary judgment, the trial court had before it briefs from both parties, the pleadings, and Ms. Tucker’s deposition. Summary judgment, like a mistrial, is an extreme remedy, and should only be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Morris v. Valley Forge Ins. Co., 305 Ark. 25, 805 S.W.2d 948 (1991).
The facts before trial were essentially undisputed. Ms. Tucker explained in her deposition that she met Mr. Sullivan at the Day’s Inn Hotel, where Mr. Sullivan was working as a security guard. At the time, Ms. Tucker was receiving psychiatric treatment and was on leave from a North Little Rock hospital. She and Mr. Sullivan developed a friendship and he visited her in the hospital. Ms. Tucker stated that, following her discharge, “[Mr. Sullivan] asked me to live with him if I didn’t have anywhere else to live. But he did invite me to come into his home.”
Ms. Tucker subsequently moved in with Mr. Sullivan in May, 1989, and the two became engaged to be married. Ms. Tucker testified Mr. Sullivan quit his job soon after she moved in and that she paid all of their living expenses, including the house payment and utilities. Mr. Sullivan also stated Ms. Tucker paid all of the living expenses, in his motion for partial summary judgment.
Ms. Tucker argues that because her living arrangement with Mr. Sullivan inured to his benefit, she should be considered an invitee. She cites the court to one of the alternative portions of AMI 1106, which recites the distinction between “licensee” and “invitee.” “A licensee is a person who goes upon the premises of another with the consent of the owner for his own purposes and not for the mutual benefit of himself and the owner.” (Emphasis added.) The “mutual benefit” language is included as part of the definition of “invitee.” The question is whether we should extend the meaning of “mutual benefit”, in classifying a person as an invitee, to include situations in which the primary purpose of the “invitation” is social. The trial court refused to do so and we agree.
Although we have not previously been confronted with a factual situation of this nature, we have cited, with approval, Dean Prosser’s definition of an invitee as “one induced to come onto property for the business benefit of the possessor.” Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991); Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1984).
Other courts and scholars, in conferring upon a visitor the status of “invitee,” have also looked to the “business” relationship between the possessor and the visitor. “One entering premises on invitation does not enjoy the status of invitee unless the entry is made in connection with the business or purposes of the owner. . . If the invitation is purely for the benefit, convenience or pleasure of the one invited, he is a licensee. . . and not an invitee.” 65 C.J.S. Negligence § 63 (41) (1966). In accord, is 62 Am. Jur. 2d Premises Liability §91 (1990): “[A] visitor is no more than a licensee where he enters the premises of another, not in response to any inducement offered by the owner or occupant, or for a purpose having some connection with a business actually carried on there by the occupant, but for his own mere pleasure, convenience, or benefit.” (Emphasis added.)
This interpretation is reflected in Restatement (Second) of Torts §332 (1965), which defines invitees thusly:
(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.
Ms. Tucker, however, points to comment i of this section, which states: “A member of the possessor’s family, although ordinarily a bare licensee is a business visitor if he pays board or gives other valuable consideration for his residence on the possessor’s land.” This statement, taken alone, may justify Ms. Tucker’s position; however, it is important, as suggested by the above-cited treatises, that we look at the purpose of the visit and the possessor’s • “invitation.”
First, Ms. Tucker’s deposition testimony raises doubt as to whether Mr. Sullivan actually “invited” her into his home, or whether he merely acquiesed to the arrangement. His words were that she could live there “if she had no place else to go.” “Mere acquiescence in, or toleration of, an entry into, or use of, premises for purposes in which the owner or occupant has no beneficial interest does not give to the person so entering the status of an invitee. . .” 65 C.J.S., supra § 63(43). Even assuming Mr. Sullivan extended an invitation to Ms. Tucker, courts usually require a showing that the invitee’s “presence on the land was, actually or apparently, desired by the defendant, generally for some purpose other than social intercourse.” 62 Am. Jur. 2d, supra, § 89.
There is simply no evidence of a business relationship between the parties, nor is there evidence that Mr. Sullivan and Ms. Tucker contemplated anything other than a social arrangement when Ms. Tucker moved into the home. The fact that she began paying living expenses was merely incidental to the romantic relationship, and there is no indication that she was under any obligation to do so. To hold that Ms. Tucker was actually an invitee, rather than a licensee as would be any normal member of a household, would require us to so hold in every situation involving live-in lovers and, perhaps even, spouses.
In sum, the trial court was correct in granting summary judgment on this issue.
At trial, the evidence varied in that Mr. Sullivan testified Ms. Tucker did not pay any bills whatsover. He testified she bought a few things for his daughter, Lee Ann, who verified this fact and who stated also that Ms. Tucker paid “some bills.” Otherwise, the evidence was substantially the same.
Consistent with its earlier ruling, the trial court properly instructed the jury Ms. Tucker was a licensee as a matter of law, and as to the duty owed a licensee by Mr. Sullivan under AMI 1103. That instruction states:
An owner of property owes a licensee no duty until his presence on the premises is known or reasonably should be known. Then the owner owes the licensee only a duty not to cause him injury by willful or wanton conduct. If, however, the owner knows or reasonably should know that a licensee is in a position of danger, he is under a duty to use ordinary care to avoid injury to the licensee. But the owner does not owe the licensee a duty to exercise ordinary care if the danger is or should be open and obvious to the licensee.
We hold this ruling, too, was correct. Whether Ms. Tucker paid some or all of the bills is irrelevant to our decision, here, since the focus of our holding is the fact that the purpose of the invitation and visit was for her social convenience, which made her a licensee.
Affirmed. | [
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Darrell Hickman, Justice.
The parties are adjoining landowners of realty located in Washington County. This cause was filed in chancery court seeking an injunction, damages for trespass, quiet title in the appellees, and a determination of a boundary line. An answer was filed claiming this was a trespass action which should be tried in a law court. A motion to transfer was made in the alternative to dismissal. Essentially one argument is made on appeal: the chancery court lacked jurisdiction. The record presented to us on appeal consists of the pleadings, the order of the court, and some of the chancellor’s remarks at the close of the case. Based on the record and arguments before us, the chancery court did not have jurisdiction, and the cause should have been transferred to the circuit court.
Toa large extent we cannot say what posture the parties took during the trial regarding the relief requested, prayers amended, or the facts proved, because we do not have the transcript of the testimony. We cannot presume facts. We do know that the complaint sounded in trespass. The trial court found trespass, entered an injunction, and transferred the case to the circuit court to hear the damages issue. The question of whether a court has jurisdiction over the subject matter of an action is determined from the allegations in the complaint. Scroggins v. Bowen, 249 Ark. 1155, 464 S.W.2d 79 (1971).
In this case the only basis for chancery jurisdiction was a request for quiet title. But there was no allegation of possession, a prerequisite for such a cause of action. Ralston v. Powers, 269 Ark. 63, 598 S.W.2d 410 (1980). The chancellor in his order found he had jurisdiction, but the record is devoid of an order reflecting any change in the allegations to the complaint amending the fatal defect.
It is significant in this case that the appellees made an attempt to supplement the record after the appellants’ brief was filed claiming that the record filed with the court does not contain all the necessary pleadings. No statement was made regarding what specific pleadings or orders were absent and what they would show. The appellants argued specifically the complaint failed to allege possession. We denied the motion because it was untimely. It was the appellees that chose the forum for their action, and they failed to allege facts establishing the court’s jurisdiction.
Reversed.
Purtle, J., not participating.
Dudley, J., concurs. | [
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J. Michael Shaw, Special Justice.
Arkansas Power & Light Company (AP&L) initiated this eminent domain proceeding against Potlatch Forest, Inc. (Potlatch) in the Nevada Circuit Court seeking condemnation of a 180 foot wide right-of-way across twelve (12) tracts of land in Clark and Nevada Counties for the construction of a 500 Kilovolt electric transmission line as well as reasonable access to and from the right-of-way. AP&L also sought the right to cut, trim or remove trees (referred to as “danger trees” by AP&L) growing outside the 180 foot right-of-way that could potentially endanger the transmission line. In its Complaint filed March 28, 1984, AP&L defined “danger trees” as:
Trees which have branches or limbs overhanging the right-of-way and/or trees whose height plus 22 feet exceed the horizontal distance from the butt of the tree to the center line of the transmission line.
On March 28, 1984, the Nevada Circuit Court entered an Ex parte Order authorizing AP&L to immediately enter upon Potlatch’s lands in order to commence construction of the transmission facility and directing AP&L to deposit $56,000.00 into the Registry of the Court as a guarantee of any judgment entered after the cause was tried to a jury for the assessment of just compensation. Potlatch moved the Circuit Court to modify its March 28, 1984 Ex parte Order by requiring AP&L to describe and condemn the lands which would fall within the “danger tree” area. In response, AP&L contended that Potlatch had challenged its right to condemn “danger trees,” the extent of its power to condemn, and the validity of its taking. It requested that the entire action be transferred to Chancery Court.
Potlatch filed an amended answer and counterclaim alleging that if AP&L were granted the right to cut “danger trees” outside the 180 foot right-of-way Potlatch would effectively be deprived of its right to engage in the normal course of its business of growing timber, particularly in a large area adjacent to and outside the 180 foot right-of-way and that AP&L should be denied the right to cut “danger trees” outside the 180 foot right-of-way unless it condemned additional rights-of-way of sufficient width to include all “danger trees.” Potlatch also prayed that AP&L specifically describe and condemn the route of reasonable access. In response to the counterclaim, AP&L prayed that the action be transferred to Chancery Court. Later, Potlatch filed a motion for more definite statement contending that AP&L’s complaint insufficiently described both the “danger tree” areas and reasonable access routes. In response, AP&L again prayed that the action be transferred to Chancery Court.
By Memorandum Opinion dated April 11,1985,theNevada Circuit Court held that it had subject matter jurisdiction over the case and that AP&L did not have the authority to go outside the condemned 180 foot right-of-way to exercise control over property for which it had not paid just compensation. Further, the court held that the easement for ingress and egress sought by AP&L must be specifically defined and condemned and just compensation paid. Thereupon, AP&L moved the court to clarify or in the alternative, to alter or amend its findings.
On April 15, 1985, the Circuit Court entered its Order granting Potlatch’s motion to modify the March 28, 1984 Ex parte Order and requiring AP&L to specifically describe and condemn the lands over which it desired to exercise such control as to cut, trim or remove “danger trees.” In addition, the court granted Potlatch’s motion for more definite statement or to dismiss on the basis that AP&L’s complaint inadequately described both the “danger tree” areas and the reasonable access routes. The Circuit Court denied AP&L’s motion to transfer the case to Chancery Court as well as its motion for clarification or amendment of the Court’s findings as stated in the Memorandum Opinion.
On appeal, AP&L challenged the Circuit Court’s exercise of jurisdiction and its rulings that AP&L must specifically describe and condemn both the “danger tree” areas and the reasonable access routes. We affirm the Circuit Court’s decision.
AP&L contends that the Circuit Court lacked subject matter jurisdiction and erred in exercising jurisdiction after Potlatch filed pleadings and pre-trial motions praying that the Court require AP&L to specifically describe and condemn the lands affected by the “danger tree” and reasonable access condemnation claims of AP&L. AP&L characterizes Potlatch’s request that the Court require specific descriptions of the “danger tree” and reasonable access areas as questioning the validity of AP&L’s taking and therefore within the sole jurisdiction of the Chancery Court.
Generally, condemnation proceedings are within exclusive jurisdiction of the Circuit Courts. Where a landowner raises equitable defenses in a condemnation proceeding, the landowner may move that the case be transferred to Chancery Court. See, 29 A C.J.S., Eminent Domain, § 232 (1965), citing Hampton v. Arkansas State Game & Fish Commission, 218 Ark. 757, 238 S.W.2d 950 (1951) and W. R. Wrape Stave Co. v. Arkansas State Game & Fish Commission, 215 Ark. 229, 219 S.W.2d 948 (1949).
Potlatch has not challenged AP&L’s right of eminent domain nor raised any equitable defenses not cognizable at law. Instead, Potlatch maintains that AP&L must specifically describe the areas over which it desires to exercise the right of eminent domain. Therefore, the Circuit Court was correct in retaining jurisdiction and denying AP&L’s motions to transfer the case to Chancery Court.
AP&L contends that the Circuit Court erred in striking the portions of its pleadings relating to “danger trees” and requiring AP&L to specifically describe and condemn the lands within the “danger tree” area. A public utility’s right to condemn private property is governed by article 12, § 9 of the Arkansas Constitution which provides:
No property, nor right of way, shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured by him by a deposit of money, which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.
In Baucum v. Ark. Power & Light Co., 179 Ark. 154, 15 S.W.2d 399 (1929), this Court held that article 12 § 9 of the Arkansas Constitution required payment of the full fair market value of the right-of-way to the owner. In addition, Ark. Stat. Ann. §§ 35-302 and 73-276.15 govern AP&L’s right to condemn private property. As stated in Loyd v. Southwest Ark. Utilities Corp., 264 Ark. 818, 825, 580 S.W.2d 935 (1979):
Such statutes delegating the power of eminent domain are strictly construed in favor of the landowners because the power is in derogation of a common right. City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W.2d 30 (1958). The only right of access granted by these statutes is the right to acquire a right-of-way or reasonable access. Ark. Stat. Ann. §§ 35-302 and 73-276.15.
Ark. Stat. Ann. § 73-276.15(a)(2) (Repl. 1979) requires a “description of the land taken sufficient for the identification thereof.”
In State ex rel. Publicity & Parks Commission v. Earl, 233 Ark. 348, 345 S.W.2d 20 (1961), rehearing denied, this Court faced a situation similar to the case at bar. The condemning authority sought to condemn a 350 foot strip of land for a runway and, in addition, a 400 foot strip of land on either side of the runway for the purpose of keeping trees cut and trimmed to eliminate obstructions to aircraft. This Court followed the Baucum case and held that the condemning authority must pay full market value for the 400 foot strips of land. In Earl, the condemning authority’s taking destroyed the landowner’s common and ordinary uses of the 400 foot strips. Similarly, Potlatch would be deprived of its customary use and practice of tree farming of the property on which the “danger trees” would be cut since it would be unable to grow trees in the area outside the right-of-way. In order to exercise such dominion over Potlatch’s lands, AP&L must specifically describe, condemn and pay just compensation for the right to cut, trim, or remove trees that could potentially endanger the transmission line.
AP&L contends that the Circuit Court erred in requiring it to define and condemn a specific route of access to and from the right-of-way. AP&L relies upon cases from other jurisdictions which have adopted the “secondary easement” theory. In Loyd, supra, we noted that we had never had an occasion to recognize the secondary easement theory and found no need to do so since the condemning authority in Loyd had not sought and acquired a separate and distinct right of ingress and egress across the landowner’s property in addition to its claim of a secondary easement. As Potlatch states in its Brief, AP&L has ample access to the right-of-way without the necessity of crossing the lands of Potlatch since there are numerous existing public roads on Potlatch’s lands which cross the right-of-way. If AP&L desires some other form of access to the right-of-way, it must specifically describe, condemn and pay just compensation for any alternate routes of reasonable access.
For the foregoing reasons, the decision of the Nevada Circuit Court is affirmed.
Special Justice Eugene Hunt concurs in this opinion.
Purtle and Dudley, JJ., not participating. | [
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Ernie E. Wright, Chief Judge.
This is an appeal from a judgment of the Crittenden County Circuit Court granting appellee’s motion for summary judgment and dismissing appellant’s complaint with prejudice.
Neither the judgment nor the record reflect that the court made a finding there were no material issues of material fact. The complaint alleged appellant was a counter helper in the employ of appellee on February 2, 1977 and on the following day she was contacted by telephone by the manager of the appellee’s eating establishment where she was employed and informed she was laid off, and was told some checks were missing from the previous night. In a later telephone conversation it was alleged the manager told her some money was missing and she would have to submit to a polygraph test. It was alleged upon submitting to the test it was determined she was innocent in connection with the missing funds, that she had difficulty obtaining the balance of her wages, thirty-three dollars was withheld from her check, and this was later paid after investigation by some federal or state agency. The complaint alleged the summary dismissal under the circumstances and refusal to pay wages due her was an outrageous course of conduct, designed and intended to cause severe emotional distress to appellant and the actions were in retaliation for alleged stealing, despite lack of evidence of theft by the appellant. It was further alleged that the dismissal of the plaintiff in such a manner breached the employment relationship in violation of public policy, and also caused a tortious injury to appellant because of severe emotional distress and damages to her reputation. It was further alleged appellee sought to prevent her from receiving unemployment benefits by reporting to the Employment Security Division that appellant was laid off due to numerous customer complaints, her bad attitude and her violation of company policies. The complaint sought damages for pain and mental suffering and exemplary damages for alleged willful and wanton action of the appellee.
Respective counsel stipulated that in addition to the pleadings the discovery depositions of Shirley Ann Counce, George Earl Counce, Jerrell Coleman Moss and Porter Moss, and also appellant’s application for unemployment benefits would be included in the record on appeal.
The depositions reflect appellant was working with one other employee on the night shift on February 2, 1977 and had responsibility for the cash register, including inventory of funds in the register at the time of closing. The other employee had the key to the eating establishment and was responsible for locking up. The following day the manager called appellant and told her there was a shortage in monies in the register. Later in the day the manager called appellant and told her she was laid off because she had too much counter help. There was evidence there was no excess counter help. The appellee withheld $33.00 in excess of normal deductions from appellant’s last pay. She took a polygraph test at the request of the appellee and it showed she had no connection with the money shortage. Notwithstanding this, appellee did not re-employ appellant or pay her the $33.00 withheld from her wages. The $33.00 was paid after an investigation by a federal or state agency.
Appellant applied for unemployment benefits and appellee sent a report to the Employment Security Division showing appellant was terminated “because of numerous customer complaints and that she failed to follow company policy”.
Jerrell Moss, supervisor for the appellee owner of the food outlet, testified that he had telephone complaints from two customers about the service of a waitress meeting the description of appellant. The witness could not give the names of either of the parties making complaint. Appellant testified she called Mr. Moss and asked why he had withheld her money and explained that she had passed the polygraph test and needed the money. He said, “I need mine, too.”
Appellant filed a motion that appellee be required to permit appellant to inspect and copy non-privileged written statements of appellee taken by its liability insurance carrier incident to the claim pursuant to Ark. Stat. Ann. § 28-356. The appellee filed a response opposing the motion. The record discloses no disposition of the motion.
Appellant testified in her deposition that she was upset and hurt over the way the appellee had done her, that it had made her nervous and she had headaches and hurt all over, and that she felt humiliated in the presence of citizens of the community. The record does not disclose how many had keys to the place of business.
For reversal appellant contends the facts alleged in her complaint, if proven, constitute a cause of action in that the actions of the appellee constituted a breach of the employment relationship in violation of public policy; and that appellant suffered a tortious injury by the alleged wrongful acts of the appellee.
The cases cited by appellant in support of the allegation of a breach of the employment contract are cases from other jurisdictions in which there was held to be a breach of the employment contract, even though it was an employment at will, because the circumstances of the discharge involved violation of some right of the employee secured by statute. The case at bar does not involve the infringement of a right secured by statute and therefore we hold the complaint does not state a good cause of action for breach of contract.
However, on the allegation of a tort injury, a case of first impression in Arkansas appears to be posed on the question as to whether intentional infliction of emotional distress and damages to reputation by a wrongful discharge under such circumstances as to cast a shadow upon a worker’s integrity can be a basis for damages in a tort action. We do not find that the Arkansas Supreme Court has been called upon to determine whether an employee at will who suffers emotional distress or damages to reputation because of wrongful firing has a cause of action for damages. We do find the Massachusetts Supreme Court in the case of Agis v. Howard Johnson Co., 335 N.E.2d 315 (1976) has approved the award of damages for emotional distress under circumstances similar to the allegations here involved, and in doing so announced the following rule which we hold to be sound:
One who, by extreme and outrageous conduct and without privilege, causes severe emotional distress to another is subject to liability for such emotional distress, even though no bodily harm may result. However, in order for a plaintiff to prevail in a case for liability under this tort, four elements must be established. It must be shown (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct, .. .; (2) that the conduct was “extreme and outrageous”, was “beyond all possible bounds of decency” and was “utterly intolerable in a civilized community”, . . .; (3) that the actions of the defendant were the cause of the plaintiff’s distress, . . .; and (4) that the emotional distress sustained by the plaintiff was “severe” and of a. nature “that no reasonable man could be expected to endure it.”
Restatement (Second) of Torts § 46 (1965) and decisions from several states are cited in that decision in support of the above rule.
We approve the above rule as proper and reasonable, and appellant should have been permitted to fully develop her case. Summary judgment should not have been granted. There were material factual issues in dispute, and even if there had been no material dispute as to facts where the facts permit inconsistent hypotheses to reasonably be drawn and reasonable men might differ, then a motion for summary judgment is not proper. Deltic Farm & Timber Co. v. Manning, Adm’x., 239 Ark. 264, 389 S.W.2d 435 (1965).
The pleadings show a justifiable issue and it was the duty of the court to view the evidence in the discovery depositions in the light most favorable to the appellant in considering the motion for summary judgment. Jones v. Halliburton Co., 240 Ark. 919 (1966).
Reversed and remanded.
Penix, J., dissents. | [
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Darrell Hickman, Justice.
This case is a sequel to the case of Ford Motor Credit Company v. Yarbrough, et al, 263 Ark. 610, 567 S.W. 2d 96 (1978). In the first case we upheld the chancellor’s holding that usury voided certain contracts. The only reminaing issue to be determined was that of damages, because appellant had repossessed and sold the property, under a bond.
The chancellor heard evidence from, both parties and entered an order which reads, in part, as follows:
The Court has used no average or formula but has treated each unit separately and considered all evidence and testimony introduced, including the demeanor of the witnesses. The Court finds from a preponderance of the evidence the value of each vehicle at the time of taking to be as follows:
1.Roy A. Yarbrough
Two trailers $12,600.00
Two 8,000 tractors 34,881.68
Total $47,481.68
2.N. B. Yarbrough, Jr.
One trailer $ 1,750.00
One 9,000 tractor 19,590.09
Total $21,340.09
3.Earl H. Yarbrough
One trailer $ 6,300.00
One 9,000 tractor 20,527.07
Total $26,827.07
On appeal the appellant alleges only one error and that is that the determination of value by the chancellor is against the preponderance of the evidence.
On appeal we look to see if the findings of the chancellor are clearly erroneous. Titan Oil & Gas v. Shipley, 257 Ark. 278, 517 S.W. 2d 210 (1974). We cannot say that the findings in this case are that erroneous and, therefore, we will affirm the judgment of the chancellor.
The appellant argues that the testimony of the appellees should be discounted because they are interested parties and that the only credible evidence was that offered by the appellant.
Roy Yarbrough testified that the two trailers were worth $8,500.00 each and that the two tractors were each worth $21,500.00, or $22,000.00. The chancellor found the value of the vehicles to be some $12,000.00 less than Roy Yarbrough’s testimony.
Earl Yarbrough testified that the value of the equipment which was repossessed from him was about $32,000.00. He received judgment for some $26,500.00.
N. B. Yarbrough, Jr. asked for $31,500.00 and he obtained judgment for $21,340.00.
We agree with the appellant that the testimony of one Archie Norman as an expert is of little value. Norman’s familiarity with the vehicles in question was not sufficient for him to offer a firm opinion as to the value of the vehicles that could be given a great deal of weight.
The appellant offered evidence of value by showing the amount recovered when some of the vehicles were sold. For example, one of Roy Yarbrough’s trucks was sold to a Ford dealer for $10,500.00. It was not denied that this was a wholesale price. Earl Yarbrough’s tractor was sold to a dealer for $16,000.00, which was also considered to be a wholesale price. A similar vehicle belonging to another Yarbrough, who is not a party to this appeal, was sold at retail for over $28,-000.00 to an individual. However, it had had extensive repairs.
There was evidence the vehicles were no more than two years old, new models changed little from year to year and prices of new models had gone up dramatically.
The chancellor, just as a jury, is not required to accept at face value testimony of the witnesses. The chancellor did not in this case. No doubt, the chancellor took into consideration all the evidence, as his decree reflects, and arrived at figures less than the Yarbroughs sought but more than the appellant felt were justified.
Affirmed.
We agree. Harris, C.J., and George Rose Smith and Fogleman, JJ. | [
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John I. Purtle, Justice.
The Pulaski Chancery Court denied appellant’s petition to contest a will on the grounds it was not filed within six months from the date of notice to probate the will. Appellant contends the five-year time limit applies because actual notice was not given as required by statute.
We are requested to rule that in the absence of strict compliance with the notice of probate statute the five-year statutory period for contesting the will applies. We hold that substantial compliance only is required and affirm the trial court’s holding that the appellant had actual and constructive notice of probate of the will. We also disagree with appellant’s contention the trial court erred in ruling on the statute of limitations question in a summary manner after a hearing on the question of limitations.
Decedent’s will was admitted to probate on December 19, 1975, without notice or hearing. However, the executor prepared and signed the standard notice and mailed copies to the probate clerk along with notice to be mailed to petitioner, the only brother of decedent, with a request for the clerk to mail notice to the interested parties. The envelope to the appellant had been addressed and a registered return receipt attached to the outside of the envelope. The clerk’s return address was placed on the return receipt. December 22, 1975, the attorney for the executor mailed a letter and copies of all the papers, including notice of publication, to appellant. This letter was not returned to the attorney although his return address was on the envelope. The first notice of publication ran on December 23, 1975. December 26, 1975, appellant’s wife wrote the executor’s attorney a letter which stated she hoped all questions had been answered as she did not know what her husband had done with the letter from the attorney.
On January 8, 1976, appellant’s attorney filed a special request with the probate clerk asking for notice on all proceedings in the estate. February 9, 1976, the executor’s attorney hand delivered a letter and copies of all prior proceedings, including the notice of probate of the will, to the appellant’s attorney. The request for notice of all proceed ings designated appellant’s attorney as the person to receive all such information. In the meantime, the return receipt which had been attached to the letter of December 22, 1975, was returned to the probate clerk without a signature of the addressee as requested. Subsequently, at the hearing on the petition to contest the will, a postal employee testified it was likely that the machine at the post office detached the return receipt from the letter and the receipt was mailed back to the sender. In this case the letter, from which the request had been detached, would customarily be delivered by ordinary mail. In any event, the appellant (addressee) denied having received the letter of December 22, 1975. There is no direct proof that it was received by him. However, information requested in the letter was furnished. The probate of the will continued and final notices were sent to the interested parties, including appellant. No one appeared or objected to the final hearing and the estate was closed on April 4, 1976. The petition to contest the will was filed by appellant on November 20,1978. It was denied by the court on April 4,1979, for the reason that appellant had received actual and constructive notice of the probate of the will.
It is admitted by appellant he had actual notice as well as constructive notice of the will being probated. However, he insists there should have been personal notice as set out in Ark. Stat. Ann. § 62-2012 (Repl. 1971). This statute reads in part as follows:
Notice. — a. When Notice To Be Given. Notice to interested persons need be given only when and as specifically provided for in this Code or as ordered by the court. When no notice is required by this Code the court, by rule or by order in a particular case, may require such notice as it deems desirable.
b. Kinds Of Notice Required. Unless waived and except as otherwise provided by law, and subject to rule of the court or order of the court in a particular case specifying which of the following types of service shall be employed, notices required by this Code may be served either:
(1) By delivering a copy personally to a person, if a natural person, and if a corporation or a partnerhip by delivering a copy to an individual upon whom civil process may be legally served in behalf of the corporation or partnership, at least ten (10) days prior to the date set for the hearing; or
(2) By leaving a copy at the usual place of abode of the person being served with some person over the age of fifteen (15) years, who is a member of his family, said notice to be served by an officer authorized to serve process in civil actions, at least ten (10) days prior to the date set for the hearing; or
(3) By registered mail, requesting a return receipt signed by addressee only, addressed to the person to be served located in the United States at his address stated in the petition for the hearing, to be posted by depositing in any United States post office in this state at least fifteen (15) days prior to the date set for the hearing; or
(4) By publishing once a week for two (2) consecutive weeks in some newspaper published and having a general circulation in the county, the first day of publication to be at least fifteen (15) days prior to the date set for the hearing, and, in addition, when service by publication only is employed, all persons whose names and addresses appear in the petition shall be served by ordinary mail bearing on the envelope the return address of the clerk, in the same time and manner as provided in subsection (3) with respect to notice by registered mail, except that no registration shall be required; or
(5) By any combination of two or more of the above.
c. By Whom Prepared, Signed and Served. Except when by statute or by order of the court otherwise expressly provided, a notice in a probate proceeding shall be in writing, or print, prepared by or by procurement of the party upon whom rests the burden of giving the notice and signed by the clerk. If service is to be by mail the person preparing the notice shall deliver the same to the clerk properly prepared for the post and the clerk shall be required only to post the same. Personal service may be made in any part of this state and, except as provided by subsection b (2) hereof, may be made by any person not an incompetent.
‡ ■i’ ^
e. Service On Attorney. If there be an attorney of record for a party in a proceeding or matter pending in the court, all notices required to be served on the party in such proceeding or matter shall be served on the attorney and such service shall be in lieu of service upon the party for whom the attorney appears.
* * *
Ark. Stat. Ann. § 62-2013 (Repl. 1971) provides notice may be waived by a person submitting to the jurisdiction of the court. We believe appellant voluntarily submitted to the jurisdiction of the court on January 8, 1976, by requesting in writing that notice by ordinary mail of any petition, motion, or other filing of any kind, be sent to his attorney. All past and future notices, including notice of publication, were furnished to appellant’s attorney who stated at the hearing on the petition that notice was not an issue. Appellant’s attorney stated he was aware of the six-month time limit and discussed it with appellant. In fact, the attorney had a memorandum prepared for appellant regarding the possible contest of the will. Ark. Stat. Ann. § 62-2114 (Repl. 1971) provides a contest must be commenced within six months if the interested party has been notified as required by Ark. Stat. Ann. § 62-2111 (Repl. 1971). This required notice addresses itself to the procedure required by § 62-2012 which is set out above. If notice has not been afforded as set out above a contest is timely if filed within five years after admission of the will to probate.
We believe the court is supported by a preponderance of the evidence in finding that actual notice was received by appellant. No doubt the letter of December 22, 1975, was mailed as evidenced by the fact that the post office returned the green receipt which was returned to the probate clerk plus the appellant’s wife’s statement that the letter had been misplaced. Also, information requested in the letter was submitted to the executor’s attorney. We realize that appellant and his wife both denied receiving the letter. Even if the letter were not received, the appointment of an attorney of record to receive all notices and proceedings constituted a waiver or submission to jurisdiction of the court in this case.
The burden of proof in this instance was with appellant as to the allegations in the petition to contest the will. Ross v. Edwards, 231 Ark. 902, 333 S.W. 2d 487 (1960); Leister v. Chitwood, 216 Ark. 418, 225 S.W. 2d 936 (1950). However, the test in a will contest is whether there has been a substantial compliance with the statutes regarding probate of the will. Thomason v. Ledgerwood, 211 Ark. 327, 201 S.W. 2d 14 (1947). (This case was prior to the probate code.) Merritt v. Rollins, 231 Ark. 384, 329 S.W. 2d 544 (1959); and Edwards v. Brimm, 236 Ark. 588, 367 S.W. 2d 433 (1963). To hold in this case that appellant could contest the will would indeed place form above substance. We do not imply that the procedures set out in the statutes are not to be followed; we hold rather that such procedures have been followed in this case substantially. It is obvious appellant had full knowledge of all proceedings in this matter and has not been misled or had advantage taken of him. Admitted knowledge of the proceedings is a matter to be considered by the court. Metcalfe v. Nichol, 225 Ark. 574, 283 S.W. 2d 853 (1955). Appellant apparently changed his mind after he knowingly let the statute run on contesting the will.
We know of no rule or law which prohibits the probate judge from considering an affirmative defense which is dis-positive of the case without first hearing the merits of the allegations of the petition. It appears to have been the least expensive and less troublesome method of disposing of this contest. There is no allegation that appellant was deprived of the right or opportunity to present all available evidence on the question of whether his petition was barred. All evidence relating to the contest of the will would only have burdened the record. We are not unaware of the allegations in the petition specifically alleging that notice was not given and the five-year statute controlled. However, these issues were heard and determined adversely to the appellant. It would have served no useful purpose to hear this evidence twice. The mental and physical condition of the decedent has no bearing on the statute of limitations to be applied in this case.
Affirmed.
Harris, C.J., and Hickman, J., not participating. | [
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Ernie E. Wright, Chief Judge.
Appellant, Mrs. Scinta, and appellee, Mr. Markward, were divorced November 19, 1969 in the State of New York. The decree required appellee to pay appellant $134.00 per month child support for the two minor children of the parties. Sometime after appellee’s removal to Arkansas and failure to make support payments appellant in 1975 initiated a Uniform Reciprocal Support Petition in New York where she and the minor children continued to reside and same was duly filed in the Chancery Court of Sebastian County, Fort Smith District, with a certification of need by the judge of the forwarding court showing need of the children to be $200.00 per month, plus medical and dental expenses. After service of summons on appellee and a hearing on the petition and the cross complaint filed by the appellee asking for custody of the children, the court entered an order dated March 24, 1976 finding appellee had the ability to pay $115.00 per month child support and ordering him to pay same and to maintain group insurance coverage for the children or otherwise be responsible to defray extraordinary medical or dental bills for them. The court further ordered that appellee should have the right to have the children visit with him in Arkansas from June 1 until August 15 of each year and that he would “be relieved of child support payments for such extended visitation periods in the summer months when and if exercised”.
On August 11, 1976 the court entered an order finding appellant in contempt of court for failure to comply with the visitation provisions of the order of March 24, 1976 in the reciprocal support proceeding, reducing the child support to $100.00 per month and providing for disbursement of the child support payments to appellant only on condition she comply with the Arkansas court order with reference to visitation. Later, a motion was filed to vacate the order dated August 11, 1976. At a hearing on June 29, 1977, at which the respective parties were represented by counsel, the court entered an order vacating its order dated August 11, 1976 and prior orders to the extent that they dealt with visitation rights, and directing the child support would remain in the amount of $50.00 per child per month and that accumulated child support payments should be delivered over to appellant.
Thereafter, appellee failed to make child support payments for the period from June 1, 1977 until August 15, 1977. Appellant on September 8, 1977 filed a motion to cite appellee for contempt for such failure. Appellee filed a response contending that the reciprocal support order dated March 24, 1976 relieved appellee of child support for payments for the two and a half month period set out in said order for appellee’s visitation with the children.
The court entered an order dated November 11, 1978 reciting there was a misunderstanding as to the prior orders of the court dated March 24, 1976, August 11, 1976, and June 29, 1977 as to whether the appellee is relieved of child support payments for the months of June, July and one-half of August of each year. The order recited “the court for the purpose of clarification of the above-mentioned orders . . . does direct that its said previous orders do not require the payments of child support by the defendant for the months of June, July and one-half of the month of August of each year”. On appeal from that order, appellee contends the trial court under the Uniform Reciprocal Support Act, Ark. Stat. Ann. §34-2401, el seq. (Repl. 1962) was without jurisdiction to reduce or withhold child support conditioned on visitation rights.
In Kline v. Kline, 260 Ark. 550, 542 S.W.2d 499 (1976), the court held participation in any proceeding under the Uniform Reciprocal Enforcement of Support Act does not confer jurisdiction over any of the parties thereto with reference to parental visitation rights, and that such rights and their enforcement are to be addressed to the court where the parent having custody and the children continue to reside. The court, therefore, properly vacated the portions of all orders establishing visitation rights of the appellee, as such matters were outside of the scope of the jurisdiction of the court under the Act.
The appeal from the order dated November 11,1978, being from the Chancery Court, is reviewed de novo in this court. The record discloses no change in circumstances warranting a reduction in the amount of child support under the very conservative award of $50.00 monthly per child as fixed by the order dated August 11, 1976. None of the orders prior to the order of November 11, 1978 specified that appellee would be unconditionally relieved of support payments from June 1 through August 15 each year. On the contrary, the only prior order that dealt directly with the point, the order of March 24, 1976, recited “respondent is to be relieved of child support payments for such extended visitation periods in the months when and if exercised”. The order dated November 11, 1978 giving rise to this appeal would have the effect of deleting the provisions in the prior court order specifically providing that appellee would be relieved of support payments during summer visitation periods if the visitation was actually exercised. We hold there is no pleading and evidentiary basis for such a change departing from the provisions contained in the prior court orders.
The arranging of child support on a basis avoiding payments during visitation periods not arranged by agreement of the parties or by the order of the court of the state having jurisdiction over visitation rights is improper. The chancellor’s action violated the spirit if not the letter of Kline v. Kline, supra, but regardless of that holding, we could not affirm.
All prior orders of the court in this cause had been entered far longer than ninety days prior to November 11, 1978, and were not subject to modification or vacation except in accordance with Ark. Stat. Ann. §29-506. Ark. Stat. Ann. §22-406.4 clothes the chancery court with plenary power over its judgments for a period of only ninety days after entry. The record does not reflect the establishment of any of the grounds set out in §25-506 for modifying the prior final orders of the court, and there was no compliance with Ark. Stat. Ann. §29-508 which prescribes the required procedure for modifying or vacating a final judgment. The order of November 11, 1978 was a modification of prior final orders rather than a clarification or clerical correction.
The case is reversed and remanded with directions to enter a decree in conformity with this opinion and for determination and enforcement of appellee’s arrears in child sup port obligations. The decree will award appellant a $300.00 attorney fee to be paid by appellee for legal services in this appeal. | [
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John A. Fogleman, Justice.
This appeal was taken by the father and paternal grandparents of Belinda Jean Pender from a decree of adoption entered March 6, 1978, in the Probate Court of St. Francis County for her adoption by appellees Eugene McKee and Dorothy McKee. The McKees have resided in St. Francis County for approximately 15 years. The child was born on October 16, 1975, to Arch Arthur Pender III, then 21 years of age and Brenda Kay Wyers Pender, then 19 years of age. Both the parents and all the grandparents of Belinda were then residents of Cross County. These parents were separated at the time of Belin da’s birth, or shortly thereafter. Belinda was born prematurely and survived only with considerable difficulty. She was born in the Cross County Hospital at Wynne and kept there in an incubator about 30 days. For three days after her mother and paternal grandmother took her from the hospital, the child was having trouble breathing and suffering seizures, so they took her to a physician, and, upon his recommendation, took her to a hospital, where she remained for some time. By agreement with the parents, the child, then three months old, was taken from the hospital by Arkansas Social Services and immediately placed in the home of appellees, on December 15, 1975, where she was kept for six to ten months.
Arkansas Social Services took Belinda from the McKees and returned her to her parents. In December, 1976, the parents were separated and Belinda’s mother Brenda, who is also an appellant, brought her, along with her two brothers, one older and one younger than she, to the home of Mr. and Mrs. Arch Pender, Jr., her paternal grandparents, where they remained until May, 1977. Arkansas Social Services filed a petition in the Juvenile Court of Cross County, alleging that neither the maternal grandmother’s home nor the paternal grandparents’ home was a suitable place in which to raise these children. As a result, the juvenile court ordered the children removed from the Pender home and put in the custody and under the control of Arkansas Social Services, where they remained for about four months. The juvenile court specifically found that the home of the paternal grandparents was crowded, unclean and unsanitary, and that the parents had separated on several occasions.
A petiton was later filed by the paternal grandparents for a return of the children to their custody. On September 27, 1977, the juvenile court granted this petition, subject to continued supervision, or “protective surveillance,” by Arkansas Social Services. Belinda remained with her paternal grandparents until removed by order of the Chancery and Probate Court of St. Francis County, entered March 30, 1978, in this proceeding, which had been commenced by the petition of the McKees for adoption of Belinda, filed December 28, 1977. This order was entered after the chancellor and probate judge had consolidated the adoption proceeding and a petition for habeas corpus filed by appellees in the Chancery Court of St. Francis County to obtain custody of Belinda after the order of adoption was granted.
Appellants argue that the order of adoption was granted without the consent required by statute. Neither the parents, nor the paternal grandparents, gave their consent. The probate court held that their consent was not necessary.
We have concluded that the consent of the Juvenile Court of Cross County was not necessary. The adoption proceedings were governed by the Revised Uniform Adoption Act [Ark. Stat. Ann. § 56-201 et seq (Supp. 1977)]. Consent of the juvenile court would have been necessary only if there was no person lawfully entitled to custody of Belinda or empowered to consent to her adoption. Ark. Stat. Ann. § 56-207 (a) (3) and (4). The paternal grandparents were lawfully entitled to custody of the child. The requirements of Ark. Stat. Ann. § 56-206 (a) (3) are alternatives. The use of the disjunctive “or” makes the legislative intent quite clear that consent can be given either by (1) any person lawfully entitled to custody of the minor or (2) any person lawfully empowered to consent to her adoption. That person clearly need not be both lawfully entitled to custody and lawfully empowered to consent. The purpose of the legislature to authorize one who has been empowered to consent to do so, without also being lawfully entitled to custody, is clear. Thus, it is clear that the paternal grandparents had the power to consent to this adoption, because they were lawfully entitled to her custody, so Ark. Stat. Ann. § 56-206 (a) (4) never came into play.
Appellants did not assert any point for reversal upon the failure of the juvenile court to consent to the adoption and they did not contend in the original hearing in the adoption proceding that it was necessary. In their brief, they did advance subsidiary arguments that the juvenile court order relied upon by the probate court was void because it was entered without notice to either the parents or the grandparents, and that the juvenile court was without power to consent to an adoption. The probate court did not base its order of adoption solely on the consent of the juvenile court. Its holding based upon that consent was more properly a “makeweight” or secondary reason for holding that the consent of the natural parents was unnecessary. The court’s order had, before reciting this holding, stated that the natural mother had abandoned the child, that the natural father had, within the meaning of Ark. Stat. Ann. § 56-207 (a) (1), effectively abandoned Belinda and, within § 56-207 (a) (2), “for a period of at least one year has failed significantly without justifiable cause ... to provide for the care and support of the child as required by law or judicial decree,” and that the consent of the grandparents was not necessary because the juvenile court did not give them that power and the grandparents were unreasonably withholding their consent. Thus, we need only consider appellants’ points for reversal, i.e.:
I
THE COURT ERRED IN GRANTING THE ADOPTION WITHOUT THE CONSENT OF THE FATHER.
II
THE COURT ERRED IN GRANTING THE ADOPTION WITHOUT THE CONSENT OF THE PATERNAL GRANDPARENTS WHO HAD CUSTODY OF BELINDA PENDER AND WHO WERE LAWFULLY ENTITLED TO CUSTODY.
III
THE COURT ERRED IN REFUSING THE MOTHER’S MOTION TO SET ASIDE THE ORDER OF ADOPTION FOR LACK OF JURISDICTION.
IV
THE COURT ERRED IN ITS FINDING THAT IT WOULD BE IN THE BEST INTEREST OF THE CHILD THAT THE PETITION FOR ADOPTION BE GRANTED.
I
The holding of the probate judge that Arch Pender III had abandoned Belinda is clearly against the preponderance of the evidence. Abandonment, in the sense of the adoption statutes, means conduct which evinces a settled purpose to forego all parental duties. Woodson v. Lee, 221 Ark. 517, 254 S.W. 2d 326. Permitting his child to remain for a time undisturbed in the care of others does not constitute such an abandonment. Woodson v. Lee, supra; Walthall v. Hime, 236 Ark. 689, 368 S.W. 2d 77. In Walthall, we followed this dictionary definition of abandonment:
To relinquish or give up with the intent of never again resuming or claiming one’s rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connections with or concern in; to desert, as a person to whom one is bound by a special relation of allegiance or fidelity; to quit; to forsake.
While Belinda was with the McKees, her father did visit her and came, on occasion, to pick her up. There was testimony that he was, at the time of the trial, visiting his children at his parents’ home every day and buying food and milk for Belinda. Arch Pender III testified that when he was in Missouri, where he normally makes his home, he usually came down and visited Belinda every other weekend. He said that, when he was employed in Missouri, he had sent what money he could, after he paid his bills, to his father for Belinda’s support. He said that he paid a total of $615 for child support in 1976 in three equal installments, even though he admitted that Brenda had denied receipt of them. The recited testimony is otherwise uncontradicted, so we cannot say that appellees met their burden of proving by clear and convincing evidence that Arch Pender III had abandoned Belinda within the meaning of the adoption statutes.
We are not at all certain about the terms of any judicial decree requiring Arch Pender ¡II to support this child, and the record, as abstracted, does not disclose the identity of the court in which such a decree was entered, but he seems to have conceded that he was required, by a Missouri court, at one time to pay $205 per month to his wife, Brenda Pender, who has not had custody of Belinda for any significant period of time. It seems that these payments were required for the three children. It also appears that, on January 9, 1978, after the petition for adoption was filed, he made one payment of $25 upon an order for weekly payments in that amount obtained or issued by a Child Support Enforcement Unit. This also appears to have been for all three children. It is admitted that he was two weeks in arrears on those payments at the time of the trial.
We cannot say, however, that the probate judge erred in holding that Arch Pender III had failed significantly, without justifiable cause, to support Belinda, as required by law, even when the evidence is tested on the “clear and convincing standard,” now effective in such cases. Harper v. Caskin, 265 Ark. 558, 580 S.W. 2d 176 (1979).
The law requiring a father to support his minor child has been declared by statute. Ark. Stat. Ann. § 67-633 a (Repl. 1971). It is also his legal obligation, independent of statute. Brown v. Brown, 233 Ark. 422, 345 S.W. 2d 27; McCall v. McCall, 205 Ark. 1123, 172 S.W. 2d 677.
The question was whether the father has “failed significantly” for a period of one year to support his child “without justifiable cause.” “Failed significantly” certainly does not mean “failed totally.” It only means that the failure to support must be significant, as contrasted with an insignificant failure. It denotes a failure that is meaningful or important. Webster’s New International Dictionary, 2d Ed.
Appellants admit that while the McKees had Belinda, her father contributed nothing to her support. Although the chancellor found that this period was approximately six months, it seems to us that the evidence shows that it was at least ten months. The child was taken from the McKees and placed in her mother’s custody about November 1, 1976, but, according to Arch Pender, Jr., she took all three of her children and “dumped them out” at the home of the paternal grandparents in December, 1976. The father stated that while he was working at a full-time job in Kennett, Missouri, he sent four or five payments of child support as ordered by the court, but Brenda and “all of them” told him they didn’t get the money. He had worked at a cotton gin from October 14 to December 7, 1977. He was paid at the rate of $2.60 per hour. He had been regularly and steadily employed prior to that time on a farm by the same employer. It appears from the testimony of Arch Pender III that he sent whatever support payments he claimed to have made during 1976 to Brenda, and he admitted that neither Brenda nor anyone else acknowledged receipt of these payments. Jackie Peeler, a Social Service Specialist with the Cross County Social Service, to whom the Pender case has been referred for protective surveillance, testified that, assuming that Arch Pender III had made three payments of $205 each, she would not consider that they constituted a substantial amount to pay for the support of his three children for one year.
Thus, the record shows clearly that Arch Pender III made no substantial contribution to Belinda’s support between December 15, 1975, when she was taken to the McKees, and the time she was “dumped” at his parents’ home. The substantiality of his contribution thereafter is questionable to say the least. The testimony indicates that his payments to his parents, when made, have been $20 or $25 per month. Even his father would not say that he supported his children. Arch Pender, Jr., would only say that he helped.
Appellants also admit that Arch Pender III contributed nothing to the support of the children for a period of at least 4-1/2 months between the date in May, 1977, when the children were placed in the custody of Arkansas Social Services by order of the Juvenile Court of Cross County, and September 27, 1977, when that court vested custody in the paternal grandparents. The test of the statute was met, if Belinda’s father failed, in a meaningful or important respect, to support her, without justifiable cause, for any consecutive period constituting a total of one year between October 16, 1975 when she was born and December 28, 1977, when the petition for adoption was filed. The one year period specified by statute need not be the year immediately preceding the judgment of adoption, since “a period of at least one [1] year” in the statute means any one year period. Lout v. Whitehead, 415 S.W. 2d 403 (Tex., 1967); Garda v. Canales, 434 S.W. 2d 895 (Tex. Civ. App., 1968); Homfeld v. Pence, 487 S.W. 2d 224 (Tex. Civ. App., 1972); Curtan v. Gordon, 510 S.W. 2d 682 (Tex. Civ. App., 1974). In this connection, it is significant that prior statutes [Ark. Stat. Ann. § 56-106 (b) (Í) (Repl. 1971)] on abandonment required that the requisite period be “next preceding the filing of the petition,” as do statutes involved in cases holding to the contrary. No such language appears in Ark. Stat. Ann. § 56-207. The trial court’s findings were that Arch Pender III spends a great part of the year in Missouri, that, when he was in Missouri, his contributions to the care and support of the child were negligible, that his care and support during the time he was in Arkansas were also negligible and that the evidence conclusively showed that what little care and maintenance the child receives is provided by welfare payments.
Whatever appellant may have contributed since he returned to Arkansas from Missouri in December, 1977, does not constitute redemption from his failure which had already extended over a priod of more than one year. After the required period of one year has passed, resumption of payment of support for a brief period, particularly after the commencement of the adoption proceeding or just prior thereto, is not sufficient to bar an adoption without the consent of the delinquent father by starting a new one year period of nonsupport under the statute. Lout v. Whitehead, supra; Homfeld v. Pence, supra; Jones v. Bailey, 284 S.W. 2d 787 (Tex. Civ. App., 1955). In any event, delinquency in support is not an ambulatory thing which can be recalled, cancelled out or nullified merely by a change of the father’s mind or desire. DeGolyer v. Chesney, 527 P. 2d 844 (Okla., 1974).
Since the evidence clearly shows that Belinda’s father has “failed significantly” to support her, the question of his justifiable cause remains. The evidence of justifiable cause is even less substantial than his contributions to Belinda’s support. The asserted justifiable cause is that no one asked him to pay anything or to provide anything until the child was returned to her mother, and that he then paid her four or five payments of $205 through the court at Kennett, Missouri. He claims that Arkansas Social Services never asked him to pay anything for Belinda’s support, either during the period the child was with the McKees, or the period between May and September, 1977. He argues that the Juvenile Court of Cross County could have ordered him to make payments under Ark. Stat. Ann. § 45-431 (RepL 1977) but did not do so. He also seeks to justify his failure on the assertion that, when the child is not in his custody, he is not necessarily responsible for all its support. The fact that someone else had custody of the child did not relieve Arch Pender III of his obligation to support her. See Barnhard v. Barnhard, 252 Ark. 167, 477 S.W. 2d 845. The parent must furnish the support and maintenance himself and the duty is a personal one, and he may not rely upon assurance that someone else is properly supporting and maintaining the child to avoid the impact of the statute’s providing for adoption of his child without his consent because of his failure to support the child. In re Adoption of Sargent, 28 Ohio Misc. 261, 272 N.E. 2d 206 (1970). The father’s duty to support his minor child cannot be excused on the basis of the conduct of others, unless that conduct prevents him from performing his duty. Kirby v. Kirby, 184 Ark. 532, 42 S.W. 2d 995. See Aaron v. Aaron, 228 Ark. 27, 305 S.W. 2d 550; Jones v. Jones, 199 Ark. 1000, 137 S.W. 2d 238; Green v. Green, 232 Ark. 868, 341 S.W. 2d 41. See also, Moreau v. Buchholz, 124 Colo. 302, 236 P. 2d 540 (1951). A parent’s suffering a child to be supported as a pauper by welfare agencies when he has the ability to support it has been held to afford a proper basis for making his consent to adoption unnecessary. Purinton v. Jamrock, 195 Mass. 187, 80 N.E. 802 (1907).
This irresponsible attitude of this father dearly indicates that he had no justifiable cause for his failure. Most of the contributions he claims to have made appear to have been attributable to some form of compulsion or to the pendency of this proceeding. The natural father has the duty and obligation to support his minor child whether ordered to do so by a court or not. Laslie v. Cole, 465 S.W. 2d 811 (Tex. Civ. App., 1971); Homfeld v. Pence, supra; Curton v. Gordon, supra.
The probate judge correctly held that the consent of this father was not required.
III
The mother’s position is different. She now contends that the probate court was without jurisdiction, and the order of adoption denied her due process of law, because she was never served with notice of the proceeding. This was a belated plea, raised by her motion to vacate the order after it was entered. Unquestionably, natural parents are entitled to notice of the proceeding and an opportunity to resist the action. Hughes v. Cain, 210 Ark. 476, 196 S.W. 2d 758.
Notice of the hearing was issued. The return of Deputy Sheriff Robert Futrell shows that it was served on Brenda Pender on December 30, 1977. The response to the petition was filed on January 18, 1978, on behalf of Arch Pender, Jr., and Maxine Pender, paternal grandparents of Belinda Pend-er and Arch Pender III and Brenda Pender, parents of Belinda Pender, by DeLoss McKnight, who still represents the father and paternal grandparents on this appeal.
In her motion to vacate the order, Brenda alleged, not only that she had not been served with any summons or notice, but that she had not entered her appearance or authorized anyone to do so. After hearing the testimony of Brenda Pender, Robert Futrell, Jerry Jackson and Virginia Owens, the probate judge made the following findings:
1. That from the testimony of Brenda Pender it appears that she voluntarily entered her appearance and did in fact have knowledge of these proceedings. The Court is of the opinion that Mr. McKnight, having filed an Answer on her behalf, she is in Court, and subject to the findings hereof.
2. The Court finds that Brenda Pender does not consent to the adoption but is bound by its issuance and the Motion to Vacate is denied.
These findings are supported by a clear preponderance of the evidence. Brenda Pender carried the burden of overcoming the officer’s return and of showing that she had no notice of the proceeding. Rose v. Ford, 2 Ark. 26; Broadway v. Sidway, 84 Ark. 527, 107 S.W. 163; Nix v. Dunavent, 249 Ark. 641, 460 S.W. 2d 762. See also, Williams v. Edmondson, 257 Ark. 837, 520 S.W. 2d 260; Massachusetts Benefit Life Ass’n. v. Lohmiller, 74 F. 23 (7 Cir., 1896). She testified that she had been living in Parkin for about four years; that she had seen no papers telling her about the hearing in the cause for adoption; that she was in the hospital at West Memphis when the papers were supposed to have been served; and that no one served any papers on her or told her to come to court. Her credibility was certainly suspect. She admitted that she had heard of the hearing but didn’t come to court because she didn’t get any papers. On cross-examination, she admitted that it was her grandmother, not she, who had been in the hospital, that she had come back to Parkin on December 29 and had gone to the police station, that she had known Jerry Jackson, Chief of Police in Parkin, all her life, and that he “hollered at me something about being in Court, but I didn’t hear him. ” She did remember his telling her to be in court on the adoption matter.
On examination by the probate judge, Brenda said that on one occasion she had talked with her husband about the effort of the McKees to adopt Belinda and that they reached a decision that the McKees were not going to get her. She said that she knew that her husband and his father were going to see McKnight and admitted she told them to do whatever they wanted to do about it. She admitted that she told her husband to “sort of act” for her and that when McKnight put her name on the pleading, he really had her authority to do so. She also admitted that she knew about the hearing and that her father-in-law had come to her and told her the date the hearing would be held.
She said that she had not employed McKnight, but during examination by her attorney, the following question was propounded and answer given with reference to her previous answer that she had not been in McKnight’s office:
Q. Did you go by yourself, or with your husband when you went there?
A. I never did go. I never did go to sign any adoption papers, but I went there once before, went with my father-in-law. I never did talk to Mr. McKnight.
More importantly, on recross-examination by appellees’ attorney, Brenda admitted that she had known that McKnight had filed an answer in her behalf. This recross-examination also included this question and rather strange answer:
Q. You knew Mr. Jackson told you to be in Forrest City concerning this adoption on a certain day when you were at the police station?
A. Yes, but I did not hear him.
Robert Futrell testified that he had appointed Jackson to serve the notice. Jackson testified that Brenda had come to the police station on December 30,1977, to pick up some pills and that he advised her of the proceeding and told her to be in court, but did not give her the notice. He recalled telling her the time, place and nature of the proceedings. The notice was given to Jackson by Futrell. Futrell authorized Jackson to serve the notice, and was the only one who gave Jackson instructions about the service. Jackson did not give her the papers, but left them in a tray on his desk and ran outside the building to tell her about them. He made no return on the notice.
The probate judge held that Brenda had actual notice of the hearing, that the other Penders went to McKnight’s office and told this attorney that she joined them in resisting the adoption and that he filed a pleading listing all of them as respondent. The judge found that Brenda had told her husband and his parents to go ahead and do whatever they wanted to, because she also objected to the adoption. McKnight did not testify, but stated, and offered to testify, that Brenda had not authorized him to file the response, but that he had asked Arch Pender, Jr., if she wanted him to represent her and Pender said that she did. McKnight said that he asked Pender to have her come to his office, but that she never came.
After the probate court denied the motion to vacate the order of adoption on the basis of the lack of service of notice, Brenda was permitted to testify further. She then stated that the only time she had discussed adoption with anyone was the time of a juvenile court hearing when she discussed it with the paternal grandparents. She expressed no desire to have the custody of any of her three children, but did want them to stay with the paternal grandparents where she could visit them. She said that she was unemployed and living with her mother. She stated that the McKees had Belinda for 10-1/2 months and had visited her since that time. After hearing this testimony, the probate judge denied the motion to vacate.
Appellants contend that the adoption order is void for lack of service of notice on Brenda Pender. That there were such irregularities in the service of notice to render that service defective is beyond question.
It is a well-settled general rule, however, that any objection to irregularities or defects in the service of process is waived unless made promptly and diligently and that defective service of process may be sufficient to constitute legal notice of a suit and support a judgment therein, so long as the service actually gives the party served notice of the proceedings. Hunter v. May, 161 Tenn. 155, 25 S.W. 2d 580 (1930); Voorhies v. Barnsley, 116 Fla. 191, 156 So. 234 (1934); State v. Chillingworlh, 126 Fla. 645, 171 So. 649 (1937). See also, Walker v. Carver, 93 Fla. 337, 112 So. 45 (1927); Gray v. Lawlor, 151 Cal. 352, 90 P. 691 (1907); Smith v. Collins, 42 Mont. 350, 112 P. 1070 (1910). As pointed out in Ely v. United States Coal & Coke Co., 243 Ky. 725, 49 S.W. 2d 1021 (1932), there is practical unanimity of authority that irregularities in giving notice will not void a judgment. Irregularities in service of process may make a judgment voidable, but not void. Walker v. Carver, supra.
Any defect in the process, the return thereon or the service thereof is cured or waived by the appearance of the defendant without raising an objection, and he is precluded from thereafter taking advantage of the defect. Rose v. Ford, supra; Gay v. Hanger, 3 Ark. 436; Boyer v. Robinson, 6 Ark. 552; Mutual Benefit Health & Accident Ass'n. v. Moore, 196 Ark. 667, 119 S.W. 2d 499. Filing an answer without objecting to the service is a sufficient appearance to constitute waiver when the service is either irregular or void. Mercer v. Motor Wheel Corp., 178 Ark. 383, 10 S.W. 2d 852; Fletcher v. Johnson, 231 Ark. 132, 328 S.W. 2d 373; Auto Sales Co., Inc. v. Mays, 191 Ark. 884, 88 S.W. 2d 330; Hibbard v. Kirby, 38 Ark. 102; Boyer v. Robinson, supra. See also, Storey v. Brewer, 232 Ark. 552, 339 S.W. 2d 112; Chapman & Dewey Lumber Co. v. Bryan, 183 Ark. 119, 35 S.W. 2d 80; Farmers Union Mut. Ins. Co. v. Jordan, 200 Ark. 711, 140 S.W. 2d 430. The filing of an answer on behalf of a party by an attorney has the effect of entering a general appearance, even when there has been no process or service. Purnell v. Nichol, 173 Ark. 496, 292 S.W. 686.
An attorney who appears in court is presumed to be authorized to represent the client. Broadway v. Sidway, supra; United Equitable Ins. Co. v. Karber, 243 Ark. 631, 421 S.W. 2d 338. The burden was on Brenda to show that McKnight had no authority to appear and respond to the petition for her. Jackson v. Jackson, 199 Ga. 716, 35 S.E. 2d 258 (1945). Where court records show an entry of a defendant’s appearance by a regular practicing attorney, evidence of his want of authority must be clear and satisfactory to warrant relief from a judgment against the defendant. Jones v. Burgett, 221 Ark. 866, 256 S.W. 2d 325. One having actual knowledge of the appearance of an attorney in his behalf cannot, after judgment, deny his authority on a motion to set aside the judgment. Shoal v. Bailey, 139 Mont. 198, 362 P. 2d 234 (1961).
Brenda Pender argues that she has been deprive d of due process of law because of lack of notice of the hearing, relying upon Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965). The requirements of due process of law under that decision were that she have notice reasonably calculated to apprise her of the pendency of the action and to afford her an opportunity to present her objections. These requirements of due process were met.
We have heretofore recognized that one who was apprised of the pendency of an action and aware of the nature of the relief sought before a judgment was rendered, was not en titled to have the judgment vacated, whether process was served on him or not. Taylor v. Harris, 186 Ark. 580, 54 S.W. 2d 701. We have also held that one, who was apprised of the pendency of a suit for partition in which he was named as a plaintiff and who took no steps to repudiate or discontinue the action he knew was being prosecuted in his behalf, was estopped to claim that the decree was void because he had not authorized the institution of the suit. Adams v. Woods, 128 Ark. 441, 194 S.W. 849. In view of the fact that Brenda Pend-er had actual notice of the time, place and nature of the hearing and knew that McKnight had filed an answer for her and failed to show that he was not authorized to do so, the trial judge did not err in failing to vacate the order of adoption on her motion.
II and IV
Appellants also contend that the probate court erred in holding that the consent of the paternal grandparents, as persons lawfully entitled to custody, was not required. The court found the paternal grandparents unreasonably withheld consent to the adoption. Appellants point out that Ark. Stat. Ann. § 56-207 (a) (8) provides that consent is not required of a lawful custodian, other than a parent, who has failed to respond in writing to a request for consent for a period of 60 days, or who, after examination of his written reasons for withholding consent, is found to be withholding his consent unreasonably. Appellants contend that, since no written request was made, there could be no basis for the court’s finding that consent was unreasonably withheld. The law does not require a written request for consent, or a vain and useless act. Neither does it put form above substance. These parties were served with notice. They had full opportunity to, and did, raise their objections by their response and the evidence presented. In their response, they simply stated that they did not consent. In his opening statement, appellants’ attorney stated the position of appellants that blood kin was entitled to preference over strangers, that the grandparents loved their grandchild and wanted to take care of and raise her, but never mentioned the somewhat inconsistent objection that they had hope that Belinda’s father might remarry and take his children to raise, or that their mother might remarry and raise them. Furthermore, the fact that Eugene McKee was 57 years or age and Dorothy McKee, 52, was not mentioned, even though their ages were stated in the petition and established by their testimony. Appellants now speculate in their brief on appeal that, if they had been served with a written request, they might have raised these objections, but state no reason why they did not, or could not have, in their response to the petition or at sometime during the proceedings.
Appellants concede that if appellees were young people and it was a certainty that Belinda’s parents were not ever, or even within the near future, going to establish a home and raise their children and, if the grandparents had previously been appointed guardians with power to consent, their refusal to consent might understandably be deemed to be unreasonable, but assert that, under the circumstances existing, it would be unreasonable for them to consent. Appellants had a full and fair opportunity to develop all these issues.
The McKees testified that they were qualified as foster parents in California as well as in Arkansas. The evidence supporting the court’s finding that Belinda might well have died had it not been for the tender loving care of the McKees is clearly supported by the evidence. The McKees live in St. Francis County, in the country, 6-1/2 miles west of Colt, in a two-bedroom frame house, described by Brenda Pender as a nice home. The husband has take home-pay of $143 per week. The wife had surrendered her license as a foster parent in California, when the McKees lived there, in order to take a course in nursing for 2-1/2 years, in order that she might be better qualified to take care of children. Arkansas Social Services placed Belinda in the McKee home. They have raised three sons of their own to adulthood and Mrs. McKee testified that they have cared for 34 foster children.
Appellees maintained their interest in Belinda after she was removed from their home. The evidence showed that they visited the Pender home in order to see her and that, when they did, she displayed genuine affection and a decided preference for them. The McKees had, on occasion, taken Belinda home with them, had taken clothing to her and had even taken the Penders a load of wood for heating their house trailer. They stated that they took the child to Sunday school and church. At their house, where only appellees live, Belinda has her own bed and her own room. Mrs. McKee testified that they keep a box of toys under the bed for her. She said that they have a real need for children in their home and that she needs children in her home for her life to be full and meaningful. Two adult sons of the McKees assured the court that, if Belinda were adopted by their parents, they would see that she had a home when their parents died. One of them said that they had always treated Belinda as a sister. The pastor of the Pinetree Baptist Church testified that the McKees were among the most faithful members of that church, that their home was clean and the environment there, good. This testimony was corroborated by this pastor’s predecessor, who was then pastor of Highway Baptist Church in North Little Rock.
Arch Pender, Jr., has been unemployed for well over three years, is 50 years of age and is admittedly in very poor health. He is receiving payments from the Veteran’s Administration and Social Security for disability. The total monthly income in the household is $526.95, which is derived from those disability payments and aid (AFDC) to the dependent grandchildren. Food is provided by $432 per month in food stamps, for which the Penders pay $153.
The home of Arch Pender, Jr. and Maxine Pender is a house trailer which is 10 feet wide and 65 feet long. There are three bedrooms, a bathroom, a kitchen and a living room. Arch Pender, Jr., testified that in 1977, he had been compelled by the health department to install a new sewer system and a well. At all times when Belinda has been with them, there have been not less than nine people living there. Arch Pender, Jr., and his wife have 12 living children and 6 of them live at their trailer. Their oldest daughter, who was pregnant at the time of the hearing, spends the day there and brings her two children. The place is heated by burning wood in a stove made from a 30-gallon metal oil drum. When the grandchildren were returned to this place, Arch Pender, Jr., converted some closets into a place for the grandchildren to sleep, thus providing the third bedroom.
Pat Edwards, a registered nurse with the Cross County Health Unit of the Arkansas Health Department, had visited in the Pender household twice. The occasion for her going the first time was a doctor’s request that she teach the family to rid the children there of head lice. On her first visit, which was in the spring of 1977, she saw a child sitting on a bed eating an egg in a bedroom where something that appeared to be human feces was on the floor. She said that she made a lot of home visits, but had seen no home worse than that of the Penders in reference to availability of food and child care. Although she observed that there had been some improvement between her two visits, she said that when she first visited the Pender home, it was one of the worst homes she had ever seen.
Edgar Borden, the St. Francis County Juvenile Probation Officer, had made two visits to the Pender house trailer. The first was on December 13, 1977. He said that the floors were dirty and all the children’s faces were dirty. On January 23, 1978, he went there with Mrs. Riley, Health Implementation Supervisor for the State Health Department in Cross and St. Francis Counties. He described the house as filthy. A girl was sweeping the floor and had accumulated a pile of dirt which included a few cans. The electrical switch or fuse box was in a bedroom and was exposed. In the bathroom, he found a pile of dirty clothes overflowing the bathtub. The closet in one bedroom was piled full of dirty clothes about as high as his head. There was a hole in the floor approximately three inches wide through which he could see snow. The only food he saw about about 75 pounds of potatoes. None of the beds had any bed clothing and one of them had no bedding.
Mrs. Riley, who went to the place in compliance with an order of the probate court to inspect the home, corroborated the testimony of Borden. The only storage space she found was one chest of drawers in a bedroom. She said that the heater was located at the opposite end of the trailer from that where it appeared that the children slept. She said that many of the window panes were missing and in spite of efforts that had been made to cover the openings, one could feel air coming in. In no way would she say that the living conditions there were satisfactory for any child.
Belinda and her brother Clifford sleep with Joanne Pender, a 17-year-old aunt, according to Arch Pender, Jr. Two uncles of Belinda and Belinda’s other brother sleep in the same bedroom, but in another bed.
In his testimony, Arch Pender, Jr., attributed the piles of dirty clothes to his wife’s inability to get to a laundromat. He said that all the children had respiratory infections all winter. He admitted that the three grandchildren had been returned to his home on condition that he and his wife provide a good home. But he and his wife said the specialist with the Cross County Social Services, who was supervising the matter, had recently told them that they were not living up to the bargain.
Arch Pender, Jr., testified that he had made arrangements to sell his home and was trying to buy a larger one in Missouri. There was no objective evidence of any effort on his part to carry this plan into effect. There is nothing in the record to suggest any real possibility that Arch Pender III or Brenda Pender have any intention to provide a decent home for this child or either of their boys.
Arch Pender III testified that Brenda paid little attention to the children and that she isn’t much of a mother. He also testified that at the time of the hearing, he was earning $20 per day for two or three days each week at a job he had obtained after Christmas, 1977, but was paying rent of $20 per week to his sister, with whom he was living in a house trailer along with her husband and their children, and was helping buy the groceries in that household. It was admitted that he was already delinquent for two weeks in making $25 payments ordered for the support of his three children. The probability of any of appellants giving Belinda a suitable home seems slight, indeed.
Several witnesses, whose arrival at the Pender house trailer could not have been anticipated, described it as filthy. Mrs. Peeler said that there had been an improvement since she had been visiting the place, but said that the timing of her visits was usually known to the Penders. Shortly before she had notice of this hearing, she had told the paternal grandparents that, if things did not improve, she would have to make a report to the juvenile court. There was testimony from witnesses other than the McKees about finding Belinda dirty and in wet “Pampers,” with an odor of stale urine, and of seeing burns on her arms, hands and feet. Mrs. Peeler had seen mosquito bites all over Belinda’s body. Belinda has been subject to seizures all her life and regular dosages of phenobarbital are necessary. She seems to be particularly susceptible to diaper rash. Arch Pender, Jr., says that she has a nervous disposition and cries more than his babies did. He admitted that he had neglected the open switch box and the exposed electrical wires. He testified that he covered it the night after testimony had been given about it.
When all the evidence is considered, it overwhelmingly supports the probate court’s finding that the paternal grandparents had unreasonably withheld their consent to the adoption and that the granting of the adoption was in the best interest of the child.
The rights of parents are not proprietary and those of grandparents are even less so. Parental rights are in the nature of a trust reposed in them, subject to their correlative duty to care for and protect the child and the law secures their rights only so long as they shall discharge their obligations. Emmons v. Dinelli, 235 Ind. 249, 133 N.E. 2d 56 (1956); Purinton v. Jamrock, 195 Mass. 187, 80 N.E. 802 (1907). Parental rights are not to be enforced to the detriment or destruction of the happiness and well-being of the child. Purinton v. Jamrock, supra.
The judgment is affirmed.
Byrd, J., dissents.
Purtee, J., not participating. | [
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Carleton Harris, Chief Justice.
In her petition for rehearing, appellee calls attention to the following language in the opinion:
“Appellee’s case is founded upon contentions that the train crew did not keep a proper lookout; that the employees of the company negligently failed to sound the whistle or ring the bell to warn of the train’s approach; that the high weeds and grass were permitted to grow along the right of way to such a height as to prevent appellees from seeing the train; and that the crossing was adnormally dangerous.
“There is testimony that the train crew failed to sound a whistle or bell, and also testimony that these warnings were given; and there is testimony pro and con relative to the other contentions.
“However, it is not realty pertinent whether the whistle and bell were sounded in time to give warning; whether a proper lookout was maintained by the railroad employees; or whether there was evidentiary support, for the. other allegations of. negligence, for it is uncontradicted that Mrs. Gipson knew the train was coining while she was still sitting in the truck on the track.”
Since we did not feel that the matters mentioned were controlling in a determination of the litigation, we merely grouped them together, mentioning that there was some evidence on all allegations. Appellee contends that, under the case of Bond v. Mo. Pac. R. Co., 233 Ark. 32, 342 S.W. 2d 473, irrespective of the negligence of the plaintiff in placing herself in a position of peril, the railroad company is liable under the lookout statute for any injury done to plaintiff, if the operators of the train, by eompfying with the lookout statute, could have seen the perilous position of the plaintiff in time to have avoided injuring her. She points out that we have said there was evidence, pro and con, on the question of keeping a proper lookout, and, therefore, this was a proper question' for the jury to pass upon. Actually, the evidence that appellee relies upon was rather meager, and really amounts to her interpretation of part of the testimony; i.e., there is no direct proof that proper lookout was not maintained.
All of the testimony on this point was given lay members of the train crew. Fireman Paul was the only railroad employee who testified to having a view of the crossing. He said that, after the train crosses over the Fourehe crossing, there is a fairly sharp curve to the left going west, up grade, for a quite a distance, and he testified that the view was obstructed by the cut or bend. He said that he was looking ahead, and the first view that he had was the top .of the pickup truck, which he could see over the bank. The distance, according to the witness, was 350 to 400 feet, and he testified that he immediately applied the. brakes. He said that his view was not obstructed by any bushes or weeds along the track, but the obstruction to seeing the crossing earlier was “the cut or the bend on the side of the hill.”
Brakeman Minims testified: “The first thing I noticed when the train threw on its brakes, and of course I looked around, by that time we had hit the pickup.” •
Brakeman Inman testified that his first knowledge was “when the brakes went to emergency — you know you can hear .that when they go into emergency. I was on the righthand side, so I scooted over to the left side and looked just about at the time of the. impact.”
In the original brief, appellee argued that, .from the statements of Minims and Inman, a jury of reasonable men might have concluded that Paul did not apply the brakes immediately when he first observed the truck on the track.
The proof, however, is uncontradicted that appellee’s vehicle could not be seen by the train crew from farther away- than 400 feet. Paul further testified that the (rain was traveling 25 miles per hour, pulling 110 cars, and that it would take about 12 seconds to get the brakes on the train all the way through; that it would take not less than 700 feet .or 2% to 3 city blocks to stop the train at the aforementioned speed.
The engineer, Charles Cauthron, verified the fact that the train was traveling 25 miles an hour,- and he said that the curve was a 25 mile an hour curve; he agreed that the train was carrying 110 ears, 63 of them loaded.' Mr. Cauthron stated, “If I was going to make a normal stop for Bigelow, I would have started back a mile before I got to town. Because with this many cars it ■would have taken about a mile.” ■ •
It therefore appears that, even if Fireman Paul did not tell the truth about applying the brakes immediately when he saw the truck, 350 to 400 feet away, the train could not have been stopped, even had the brakes been applied a1 that time, and the failure to immediately apply * ¡k* brakes would not have been a proximate cause of the accident. In Kansas City Southern Railway Company v. Shane, Admnx., 225 Ark. 80, 279 S.W. 2d 284, this court said:
“*** These three empkwees were the only eye-witnesses to the collision. A witness had testified that he thought the truck could have been seen by the appellant’s operatives, when the train was approximately 258 feet away, for a distance of about 225 feet from the crossing. This difference between 150 and 225 feet as to the distance is not of material importance here in the circumstances because the physical facts show that this train could not have been stopped in time to have avoided the collision had the truck been discovered 225 feet away. In fact 1,350 feet was required in which to stop it.”
It is thus apparent that appellee cannot prevail in this litigation on the basis of the contention that appellant’s employee failed to keep a proper lookout.
The petition for rehearing is denied.
The testimony reflected that the truck was first observed 150 feet away. | [
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John I. Purtle, Justice.
This is an interlocutory appeal from the order of the trial court denying appellant’s motion to introduce evidence of the alleged victim’s prior sexual conduct at the trial of the case on its merits. It was the holding of the trial court that the inflammatory and prejudicial nature of the evidence outweighed its probative vaiue. Although the court held there was some probative value, there was no holding of relevancy.
Appellant urges the trial court erred in ruling the evidence of the alleged victim’s prior sexual conduct would be inadmissible at the trial and further erred in unduly limiting direct examination of the alleged victim concerning her conduct on the night of the alleged rape. We do not find the court erred on either allegation.
Appellant is one of two men charged with the rape of a 13 year old girl on August 8, 1978, in White County, Arkansas, in violation of Ark. Stat. Ann. § 41-1803 (Repl. 1977). Appellant filed a motion to admit (at the trial) evidence of the victim’s prior sexual conduct pursuant to the provisions of Ark. Stat. Ann. § 41-1810.2 (Repl. 1977). During the course of the in camera hearing the appellant’s counsel inquired of the victim as to her motive in causing the charges of rape to be filed. The specific questions asked at the time were: (1) What did you tell your parents? (2) How much did you drink? The court sustained the state’s objection to these questions. The court further commented that appellant could not inquire about acts upon which the present prosecution was based. There was no proffer of the answers nor were other questions presented either as to the acts upon which the prosecution was based or questions relating to other acts of sexual conduct.
Ark. Stat. Ann. § 41-1810.1 (Repl. 1977) prohibits introduction of evidence of a victim’s prior sexual conduct. However, the next section of the Act (§ 41-1810.2) reads as follows:
Notwithstanding the prohibition contained in Section 1 (§ 41-1810.1), evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim’s prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of such evidence is determined in the following manner: ***
This statute clearly allows evidence of the alleged victim’s prior sexual conduct, as well as evidence directly pertaining to the acts upon which the present prosecution is based, to be introduced or inquired about at the in camera hearing. The purpose of such hearing is to review the evidence to determine whether it is relevant for trial purposes. Unless the court hears such evidence, it cannot properly determine its relevancy. Such conduct, including conduct on the date or at the time of the alleged offense, is proper at the pretrial hearing. Any conduct which relates to consent of the alleged victim is proper, regardless of its time and place. Remoteness in time and absence of similar circumstances go to the relevancy of such conduct and are matters to be considered by the trial court in determining whether such evidence should be excluded at the trial.
Appellant should have been permitted to present any available evidence relating to the victim’s prior sexual conduct and any available evidence relating to the acts upon which the present prosecution is based. However, the in camera hearing is not designed to be used as a subterfuge to obtain a discovery deposition from the alleged victim. There is no requirement that the victim present herself for questioning by the accused. We disagree with appellant’s theory that all prior acts of sexual conduct are relevant as tending to show consent. To accept such contention would serve to completely defeat the intent of the General Assembly as evidenced by the enactment of Act 197 of 1977. The emergency clause of Act 197 (Ark. Stat. Ann. § 41-1810.1.2.3.4) specifically recites that evidence in such hearings is limited to that which directly pertains to the act upon which the prosecution is based. The obvious intent of the Act was to encourage victims to prosecute offenders without fear of being humiliated by public questions concerning any and all past acts of sexual conduct.
We agree with the trial court’s holding that what the victim told her father or what motivated her to cause the charges to be filed is not within the bounds of the statute or the motion as filed. The motion stated the appellant had information which he desired to present to the court for consideration. We are unable to rule on evidence not proffered or questions not asked. Duncan v. State, 263 Ark. 242, 565 S.W. 2d 1 (1978). Prior acts of sexual conduct are not within themselves evidence of consent in a subsequent sexual act. There must be some additional evidence connecting such prior acts to the alleged consent in the present case before the prior acts become relevant. The record before us does not show there is any additional connecting evidence which renders the prior admitted consensual acts of sexual conduct relevant in the present case. Had the appellant proffered additional questions and answers we might have been in a position to agree with his contentions. Appellant may cross-examine the alleged victim at the trial about events which may be relevant to his defense. It is possible that matters previously ruled inadmissible could become relevant. Any time before the defense rests he may present a written motion to the court relating to the victim’s prior sexual conduct. Ark. Stat. Ann. § 41-1810.2 (a), supra.
Affirmed.
Harris, C.J., not participating.
Byrd, J., dissents. | [
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John A. Fogleman, Justice.
Appellant Rosemarie E. Chamberlain filed a petition in chancery court against Newton County, alleging that she was the owner of a 40-acre tract of land over which the county had constructed a roadway without any grant from her and without her consent. She sought a mandatory injunction requiring discontinuance of use of the roadway and restoration of her property to its previous state. She also sought compensation for the cost of a survey to determine the actual location of the road, and damages for the displacement of topsoil and destruction of trees which were removed from her land for construction of the roadway.
Newton County filed a motion to quash the service on it, a demurrer and a third party complaint against Thomas E. and Martha James, as owners of lands adjoining those of Ms. Chamberlain. The grounds stated in the demurrer were that appellant had failed to state a cause of action, and that the county was immune from tort liability. The answer consisted of general and specific denials of the allegations of the complaint. In the third party complaint, it was alleged that James had represented to the county that the Jameses were owners of the land over which the new roadway had been opened, and that Newton County had relied on this representation in constructing the new road. The county sought injunctive relief against the third party defendants for the reopening of an old road across their lands, discontinuance of the use of the new road, restoration of the land on which that road was located to its former condition and a judgment for any amount recovered from the county by appellant.
A hearing was held on January 5, 1978, which resulted in the entry of an order (entitled “temporary order”) by the chancery court on February 13, 1978, authorizing the county to open the old road and reciting the agreement of the county to place barricades at each end of the new road. Appellant’s attorney filed an amended petition on January 20, 1978, joining in the county’s third party complaint. (Appellant asserts that this action was taken against her wishes.) On September 25, 1978, Ms. Chamberlain filed an amended petition alleging that the county was maintaining a nuisance on her property by reason of its failure to restore her land to its original condition and seeking to recover from the county and the third party defendants $2,500 for damages to her land and the cost of a survey she caused to be made.
A hearing was held on October 19, 1978. On November 3, 1978, the chancery court entered an order sustaining the county’s demurrer on the ground that the county was immune from tort liability and dismissed appellant’s complaint.
Appellant, who is obviously not an attorney, is representing herself on this appeal, and her statement of the case and abstract of the record are inexpertly done, to say the least. We must disregard that part of her statement of the case which is not supported by transcript references and appears to be a narration of a sequence of events preceding the filing of her petition but which is not shown in the record of the proceeding in chancery court. These portions also seem irrelevant to the real issues on this appeal.
No testimony was abstracted and we understand from appellant’s statement in her brief, none was heard. Appellant states the following three points for reversal:
I
THE CHANCERY COURT ERRED IN SUSTAINING THE DEMURRER OF THE DEFENDANT NEWTON COUNTY TO THE COMPLAINT OF THE PLAINTIFF.
II
THE CHANCERY COURT ERRED IN DISMISSING THE PLAINTIFF’S CASE AS AGAINST NEWTON COUNTY, INASMUCH AS THE COURT HAD GIVEN THE PLAINTIFF PERMISSION TO FILE AN AMENDED COMPLAINT AND THERE WAS NO PLEADING OR DEMURRER FILED AGAINST SUCH AMENDED COMPLAINT.
III
THE CHANCERY COURT ERRED IN FINDING BY THE RECITATION IN ITS ORDER THAT THE PLAINTIFF’S COMPLAINT WAS AN ACTION IN TORT, INASMUCH AS THE COMPLAINT OF THE PLAINTIFF ALLEGED A CLAIM BASED UPON AN ACTUAL PHYSICAL TAKING OF REAL PROPERTY BY THE COUNTY.
Appellant correctly asserts that, on demurrer, her allegations that Newton County caused a roadway to be constructed over her lands without obtaining any grant of right-of-way or title for that use and purpose and that she had no notice of such taking but discovered it inadvertently are to be taken as true.
If appellant’s action be taken as a suit for damages for trespass, the chancery court had no jurisdiction. An action for trespass is in tort. 87 CJS 1007, Trespass, § 56. The chancery court had no jurisdiction of such an action for two reasons. Equity will not take jurisdiction of an action to recover unliquidated damages for tort. Mannon v. R. A. Young & Sons Coal Co., 207 Ark. 98, 179 S.W. 2d 457; District No. 21, United Mine Workers v. Bourland, 169 Ark. 796, 277 S.W. 546; Spitzer v. Barnhill, 237 Ark. 525, 374 S.W. 2d 811. The county is immune from suit for damages in a tort action. Ark. Stat. Ann. § 12-2901 (Supp. 1977); Sullivan v. Pulaski County, 247 Ark. 259, 445 S.W. 2d 94; Chandler v. Pulaski County, 247 Ark. 262, 445 S.W. 2d 96; Granger v. Pulaski County, 26 Ark. 37.
Even if appellant’s complaint be taken not to be an action for trespass, the chancery court had no jurisdiction. If appellant’s action was to enjoin the taking of her property for the county road, it was too late, and the issuance of an injunction was beyond the power of the chancery court. Since the entry was physical and visible, it afforded Ms. Chamberlain an opportunity to exact payment, require a guaranteeing deposit or obtain an injunction. Miller County v. Beasley, 203 Ark. 370, 156 S.W. 2d 791; Arkansas State Hwy. Com’n. v. Rice, 259 Ark. 190, 532 S.W. 2d 727. Once there had been a physical and visible entry on the lands by the county, and the landowner has stood by and permitted the improvement to proceed until substantial road work had been done, she could no longer resort to injunction, but was relegated to the county’s credit for compensation for the taking by the county. Miller County v. Beasley, supra. See also, Arkansas State Hwy. Com’n. v. Partain, 192 Ark. 127, 90 S.W. 2d 968; Federal Land Bank of St. Louis v. Arkansas State Hwy. Com’n., 194 Ark. 616, 108 S.W.2d 1077. The physical and visible entry on the lands served as notice to the landowner of the taking. Miller County v. Beasley, supra; Sloan v. Lawrence County, 134 Ark. 121, 203 S.W. 260. Actual entry on the land at the place where there had previously been no highway has always been held to be actual notice of taking. Arkansas State Hwy. Com’n. v. Scott, 238 Ark. 883, 385 S.W. 2d 636. The taking was complete when the owner could no longer use the land for its normal and natural purposes. Arkansas State Hwy. Com’n. v. Flake, 254 Ark. 624, 495 S.W. 2d 855.
The fact that no formal condemnation proceeding had been filed is not significant. When the power of eminent domain exists, and property is taken which might be condemned by the exercise of that authority, mandatory injunction to compel withdrawal is not available to the landowner. Dobbs v. Town of Gillett, 119 Ark. 398, 177 S.W. 1141.
When appellant filed her petition for injunction, the construction of the road was an accomplished fact. Her only remedy against Newton County was to file a claim in the County Court of Newton County for just compensation for a completed taking. Exclusive jurisdiction of appellant’s claim for compensation is vested in the County Court of Newton County as a matter relating to county roads. Art. 7, § 28, Constitution of Arkansas. The county could not be sued to recover this compensation by inverse condemnation proceedings. Act 16 of 1879; Ark. Stat. Ann. § 17-702 (Repl. 1968). See State v. Hicks, 48 Ark. 515, 3 S.W. 524; Nevada County v. Williams, 72 Ark. 394, 81 S.W. 384. See also, Deason v. City of Rogers, 247 Ark. 1061, 449 S.W. 2d 410. The chancery court had no jurisdiction to grant relief to appellant against the county, so the demurrer was properly sustained and appellant’s petition properly dismissed.
The decree is affirmed.
We agree. Harris, C.J., and George Rose Smith and Hickman, JJ. | [
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Carleton Harris, Chief Justice.
Appellant, as administrator of the estate of Elwood Allen, deceased, brought a wrongful death action against appellee, Lake Catherine Footwear Corporation, in the Circuit Court of Hot Spring County. Appellee operates a shoe manufacturing plant in Garland County, and J. E. Stanage held a contract with appellee to haul off waste and trash from its plant. Stanage, stipulated to be an independent contractor, hauled this waste and trash six days per week. It is also stipulated that Lake Catherine Footwear had no control over the means or methods of his operation in disposing of the waste material. The waste consisted of scrap leather, cloth, rubber, outsole and insole material, and other similar remnants. Included was a flammable, combustible, and volatile naphtha base liquid cleaning material. The pattern for disposition of the trash was for Stanage to park his truck at the plant, and the company’s employees would load it with all of the scrap material except the naphtha base liquid. This was placed in barrels or drums on the dock, and picked up last by Stanage. These drums were ordinarily marked with a red or yellow label with the word “caution” in large letters and “inflammable material, volatile solvent” painted thereon. No witness was able to say whether the drums loaded on February 18, 1966, were so marked.
Stanage had known Elwood Allen for approximately twelve years, and Allen had worked for him, off and on, during that period; also, Allen had worked inter mittently for Stallage during the six or seven years that he had been disposing of the trash. The witness said that Allen, who could not read nor write, and perhaps was to some extent mentally retarded, could only be used for ordinary labor, though he was able to operate a Ford tractor. He (Stallage) said that he had been advised by company employees that the solvent should not be thrown in when the trash was burned — that it might be explosive.
On February 18, after picking up the trash and solvent, the trash was dumped in a ravine selected by Stan-age, and the solvent -was poured over it. Subsequent events are then described by Stallage:
“Well, when I got that on there, I got on this machine 1 had there and shoved it over in the pit with it, and started driving it away. 1 asked if anyone had matches. No one had any. I said there are usually some in the truck. I said, ‘got the matches.’ Doug got the matches and started back with them. So, JElwood said, ‘Let me have them. ’ He gave them to him. As I was watching there he started down in this ravine. There is a kind of little pathway like deal going down in there. 1 said, ‘Judge, don’t go down in there and light that stuff off, you are liable to get blown up.’ So, I am moving out on the machine at the time I said that. So I went over and parked it and come back over there. He was still down in there attempting to strike the matches, little book type matches. One of my boys, I believe Dave said, ‘He is not going to get that lit down there.’ I said, ‘Come out of there, Judge and let’s light the thing from up here.’ I don’t really remember whether he said anything or not. Usually he didn’t whenever I would talk to him like that, so I stood there another instant. I said, ‘Come on up here, Judge and give Doug those matches and let him light a piece of paper and throw over there and we will do it from up here,’ and I said, ‘Everything will be all right’ or something to that effect. That is all I said. About the time I completed that statement he was still in the operation of striking the match and so I guess this thing must have sparked. I don’t think he threw the match in the fire. When he made the arc, the air was full enough of these vapors coming off this stuff, it exploded.”
Allen was severely burned, and subsequently died. Suit was then instituted, appellant asserting that the company, its agents and employees, were negligent and careless in placing the solvent in unmarked or inadequately marked drums; in failing to adequately warn the deceased and others of the high and unusual danger involved; and in placing the dangerous liquid waste in the possession and control of persons without educating those persons as to the danger involved in the use and disposition thereof. On trial, at the conclusion of appellant’s evidence, the company moved for a directed verdict ; after argument of counsel, the motion was granted, and the jury was instructed to return a verdict for appellee. From the judgment dismissing appellant’s complaint, comes this appeal.
Appellant has submitted an able brief, relating to liability of persons supplying chattels which are known to be dangerous for the use of others. It is also argued that the manner in which the solvent was disposed of involved an unreasonable risk of bodily harm to the decedent, and that the company knew, or should have known, that Elwoocl Allen was mentally retarded, and that he would probably use the solvent in a manner involving unreasonable risk of bodily harm to himself ox-others. Though Allexx’s mental condition is mentioned by appellant several tixnes, the evidence of axxy mental deficiency is meager ixxdeed. In fact, the only evidence relating thereto was given by the witxiess, Stanage. He was asked, “Was Mr. Allen to some extent mentally retarded, or mentally slow?” The answer was, “Well my impression of it was yes. I am not an authority. My impression was yes.” Since apparently Allen had practically no education, and could not read nor write, he could well have appeared retarded without that actually being the case. The brother of the deceased, W. F. Allen, also testified, but he only said that his brother was unmarried, and unable to read or write; there was not the slightest reference to a lack of mental competency. It might also be pointed out that there is no showing that any company employee had any reason to believe that Allen was menially retarded; for that matter, it is not shown that any of the company employees ever saw Allen. The testimony is even conflicting that Allen was ever present at the plant site when the solvent was picked up. The only witness to testify about this matter was Stallage who first stated that Allen had accompanied him on some occasion or occasions when the trash was picked up at the plant site; subsequently, however, Stallage stated that he couldn’t really remember whether Allen had been with the crew when this was done. Apparently, most of the time, Allen would go to the dump where the trash was disposed of. The Contractor was definite in stating that Allen was not with him when he picked up the drums on February 18.
However, under the facts of this case, we see no necessity to enter into a discussion of appellee’s possible duty to Allen, or vdiether warnings to the independent contractor satisfied any legal obligation, for the failure of appellee to giv.e any warning to Allen was not the proximate cause of the accident and injuries sustained.
In United States v. Bowers, 202 F. 2d 139, the United States Court of Appeals for the Fifth Circuit, in reversing a judgment under the Federal Tort Claims Act, said:
“Assuming without deciding that the negligence found by the court is within the terms of the Federal Tort Claims Act, we are of the opinion that under the evidence the finding of negligence proximately causing the plaintiff’s injuries was clearly erroneous. The plaintiff admitted that he had used the road dozens of times, was thoroughly familiar with it, that he knew there were no guard rails on it, and that he knew where the edge of the road was. Failure to warn the plaintiff could not have been negligence proximately causing his injuries when he was already so familiar with the road as to appreciate the peril.”
In Arkansas Portland Cement Company v. Taylor, 179 Ark. 915, 18 S.W. 2d 904, we said that there is no duty to warn, when the danger should be obvious. See also A. A. Electrical Company v. Ray, 202 Ark. 85, 149 S.W. 2d 38; Parker v. Heasler Plumbing and Keating Company (Wyo.), 388 P. 2d 516. We have held in numerous railroad cases that the failure to sound a whistle or bell, when approaching a crossing for the purpose of warning a motorist of the approach of the train, ceased to be a factor, and no recovery could be had for failure to give these signals, when the presence of the train was plainly discoverable by other means. Missouri-Pacific Railroad Company, Thompson, Trustee v. Doyle. 203 Ark. 1111, 160 S.W. 2d 856; Missouri-Pacific Railroad Company, Thompson, Trustee v. Carruthers, 204 Ark. 419, 162 S.W. 2d 912; Chicago, Rock Island and Pacific Railway Company v. Sullivan, 193 Ark. 491, 101 S.W. 2d 175; Kansas City Southern Railway Company v. Baker, 233 Ark. 610, 346 S.W. 2d 215.
What, then, is the evidence with regard to Allen’s knowledge that the solvent was dangerous, and should be handled with extreme care? The testimony reflects that Allen had received one of the clearest warnings possible — far more impressive than merely being told that the liquid was dangerous; he had observed an explosion resulting from the liquid’s being thrown on a smoldering fire. Stanage testified to this occurrence as follows:
{ í * * =::• Whenever we were down at this original dump I had been using, he had been there. The reason I remember particularly was that the smallest boy, Lave [Stanage’s son], was using some of that stuff in an open container and throwing it on the fire. I wasn’t aware he did it. He threw it on a fire that wras smoldering in order to get it to burn more. The fact is the material had been rained on laying there the earlier part of the week. It had been rained on and it tended to smolder on. On Saturday we kept the stuff burned. That was the day we cleaned and burned it up. He threw this stuff on there and it exploded out there and almost burned him. If he hadn’t been as fast as an actor as he was, it probably would have. Me and Elwood was standing over by a little shop I have there and I said, ‘Look there. That is what that stuff will do to you. ’ ’ ’
The testimony of Stanage relative to the warnings he shouted to Allen just prior to the explosion has been heretofore set out, and there is no necessity to reiterate that evidence.
It is clear that Allen had observed the dangerous propensity of the liquid at least once prior to February 18. It is also undisputed that on that date Allen was warned three times not to light the trash pile down in the ravine, Stanage specifically saying, “You are liable to get blown up.”
It being apparent from what has been said that any failure on the part of appellee or its employees to personally warn Allen of the dangers of the solvent was not a proximate cause of appellant’s injuries and death, the trial court did not err in directing the jury to return a verdict for appellee.
Affirmed.
According to Donald Munro, plant manager for the appellee, the liquid is used to wash the “upper of the shoe,” if the leather is particularly dirty. Operators use the solvent until it becomes so dirty that it is unusable. It is then discarded.
Stanag'e testified that Allen was not a regular employee: “He just worked for me whenever I had some labor type work which he was qualified to do, and he did work of that nature and he would also work for other people in the neighborhood doing gardening work and yard work for women around there or anyone that could use him or brush cutting and what not. Never worked for me steady, never had him on any payroll.” He said that Allen lived close to the dump where he burned the trash, and that “if he happened to be around he would come down. He lived right in the area.” According to the witness, Allen’s primary reason for going to the dump would be “to get things of value he could sell to the shoe shop in town maybe or buckets, five gallon buckets on there, he could sell and soda pop bottles.” | [
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Conley Byrd, Justice.
Appellant Willis T. Untiedt sued St. Louis Southwestern Railway Co. for the dam .ages. .that, occurred to his tandem lowboy truck after it became trapped .on the railroad tracks at the Highway 88 crossing in Altheimer. The trial court directed a verdict for the railroad. Untiedt for reversal claims that there was sufficient evidence to take the' case to the jury on the failure to keep a lookout and the statutory duty of the railway company to maintain the approaches to its tracks at the crossing.
The appellee’s tracks in the City of Altheimer run from southwest to northeast. Its trains are controlled -by a •■dispatcher in Pine Bluff through the use of signal blocks. A train from Pine Bluff approaching Altheimer commences to blow its horn at the Cotton Center crossing described as being 15 pole lengths from the Highway •88- crossing. A pole length is 176 feet. The signal block controlling north bound trains is 10 pole lengths or 1760 feet southwest of the highway crossing. The highway over which Untiedt was routed-with his permit load in the city of Altheimer paralled the railroad track, on the north side, from west to east commencing at Olive Street past Chestnut Street; Main Street and on to Ed-line Street. The railway depot is located between Main •and Edline Streets on the north side of the railroad tracks between the highway and the tracks.
Untiedt and two other tractor lowboy rigs were hauling experimental cotton-picking machines from Santa .Bosa, Texas, to the-John Deere place in Altheimer. When they reached Altheimer, the three units were parked beside the highway near the depot while the lead driver sought .information about their destination. The lead vehicle and Untiedt’s vehicle parked between Main.Street and the Highway 88 crossing. The driver of the third vehicle'.parked parallel with the highway between Chestnut Street and Main Street, at the western edge of Main Street.-' ■ • The third truck remained at this position during the collision involved here. After the lead driver obtained his information, he pulled up and made a right turn across the Highway 88 crossing. The lead driver had no difficulty crossing the tracks. When. Untiedt pulled up to make his right turn across the tracks the lowhoy he was pulling became stuck on a hump or hogsbaek or rise in the approach to the crossing, trapping Untiedt’s truck on the tracks so that he could go neither forward or backward.
Untiedt testified that the first thing he did when he got out of his truck and saw what was wrong was to go around the truck and right over to the depot. lie estimates that about 15 minutes elapsed from the time he became stuck until the collision. On direct examination he stated that he was in the depot from 5 to 10 minutes and on cross examination says that it could be anywhere from 2 to 6 minutes. He had left the depot and was standing outside when the train struck his truck. When asked, on direct, what Ralph Oratin, the driver of the number three truck was doing, Untiedt stated: ■
“A. Well, he went out on the track and went down the track to see if lie knew what was wrong, he knew what was going on, he could see it and lie went out on this track and down the track.a short distance and waved his arms and tried to wave this help to get this train stopped.
“Q. In any event he was going down the track waving his arms!
“A. Right.
“Q. Now where was he with reference to this, was he on the Pine Bluff side of this building here or was he between the building and highway 88!
“A. No, he was down towards Pine Bluff just about a block, well, I don’t know if it would be a block, it would be a long block from the crossing where I was to the next crossing towards Pine Bluff.
“Q. Towards which the train was coining. In any event, you say he would be on the Pine Bluff side of the depot?
‘ ‘ A. Eight.
“Q. All right, now from the Pine Bluff side of this depot, Mr. Untiedt, and looking down towards Pine Bluff what distance down that wajr could you see a train coming?
“A. Well, you could see a train coming from where he was quite a distance down.
“Q. Now what would you classify as quite a distance ?
“A. Well, I don’t know, maybe a couple of miles, maybe two or three.”
Untiedt says that the front of the train stopped within a 100 to 150 feet past the point of impact. On cross examination Untiedt testified:
‘ ‘ Q. Where was the second, actually the third truck driver, where was he located at that time?
“A. Approximately a block down the street by the next crossing, just say he was parked to enter the next crossing.
“Q. He hadn’t started up to follow you?
“A. No. no, when I went around I headed, I went to the depot and at the same time evidently he went on the track because when I come out of the depot, (interrupted)
“Q.- You didn’t see him what he did?
“Mr. Rawlings; Let him finish answering the question Mr. Lile before you interrupt him.
“A. Because when I came out of the depot he was down there on the track, he was going down the track. I couldn’t see him when I was in the depot.
‘ ‘ Q. Okay, how many minutes would you say elapsed from the time you first got hung up and when you went into the depot?
“A. Oh, it wasn’t but a few, just long enough to walk down there.
“Q. I believe you stated on direct examination that the overall time, from the time that you got hung up until you were coming out of the depot was about fifteen minutes?
“A. Approximately, yes.
“Q. Is that correct?
“A. That’s right.
“Q. And you said you were in the depot from five to ten minutes, I’m not sure?
“A. Well, it could have been. It could have been two, it could have been six. Whatever it took long enough for him to call down there and him go, we got out of the depot.
“Q. But overall it took about fifteen minutes?
“A. Well, approximately, I mean I didn’t time it.
“Q. You really don’t know exactly what the third truck driver did after you got hung up did you? You didn’t see him in his truck or his truck wasn’t moving was it?
“A. No. It was parked.”
Arden Yasser, a witness called out of turn by the railroad estimated that the train went a car and a half or two cars after it hit Untiedt’s truck. At this point in the trial, Untiedt introduced the railroad company’s answer to his interrogatories as follows:
“Q. Now during the past fifteen years, state the dates and owners thereof of all vehicles which were hung while down Highway 88 at this crossing mentioned in plaintiff’s complaint.
“Answer: September 10, 1964, S. P. Conners. September 2, 1966 Willis Untiedt.
“Q. No. 10. State where the train station at Altheinier is located with reference to the crossing mentioned in plaintiff’s complaint.
“Answer: North edge of Station is 215 feet South of crossing.
“Q. State the name and address of all employees of St. Louis Southwestern Bailway Lines who were working in or near this station at the time of the collision mentioned in plaintiff’s complaint.
“Answer: L. K. Baker, 1115 Pine Street, Pine Bluff, Arkansas.
“Q. State what was done by such employees to warn the approaching train that plaintiff’s truck was hung on the crossing.
“Answer: The operator of the vehicle, Willis Untiedt, informed the Belief Agent, L. K. Baker. tliat his trailer was hung up in the street with the tractor fouling the track, and Mr. Baker telephoned the Chief Dispatcher in Pine Bluff, who advised him that a North bound train was closely approaching the Altheimer station. The Chief Dispatcher informed Mr. Baker that the North bound train had already passed the last signal and the train crew could not be warned by signals of the existing condition at the crossing. Therefore, Mr. Baker started running in the direction of the approaching train, waiving a red flag in an effort to stop the train short of the crossing.
‘ Q. State the speed of the train at the time it struck plaintiff’s truck.
‘ Answer: Approximately 3 to 5 miles per hour.
‘ Q. How far was such train from the crossing when its brakes were applied?
1 Answer: Approximately 800 feet.
‘Q. Was the emergency brakes applied?
‘Answer: Yes.
‘Q. Who applied the brakes and what is his title?
‘Answer: E. P. Shanafelt, Locomotive Engineer.
‘Q. For what distance could the employees of the train see the crossing and plaintiff’s truck prior to the collision?
‘Answer: Approximately 700 feet.
‘0. What obstruction or obstructions prevents from seeing further down the track?
“Answer: A1 thornier depot.”
Mr. Ernest Johnson the fireman testified that the train consisted of 112 or 115 cars and that he was sitting in the fireman’s seat on the left hand side. The train commenced to blow its whistle at the Cotton Center crossing some 15 pole lengths from the highway crossing. When the train reached the section foreman’s house, 9 pole lengths from the highway crossing, he saw somebody running up the track waving his arms. At this point ho could not see the highway crossing because of the depot. He says the emergency brakes were applied at a point 8 pole lengths west of the crossing at a time when the train was running at a speed of 45 miles per hour (66 ft. pei- second). He estimated the speed of the train at tlie time of collision to be 5 miles per hour. He said, “I thought we was going to get stopped but we didn’t quite make it”. Mr. Johnson testified that the first time he saw Ealph Cratin, Cratin was at a point near Olive Street running down the railroad tracks waving his arms (approximately 500 feet west of the Main Street crossing). He says there was a gradual curve in the railroad starting about the point where he saw Cratin. On cross-examination he said you could see a person a half mile clear enough to distinguish a man from a woman or child and that a person running was much more easily seen than a person standing still.
Exhibit No. 7, a plat of the Altheimer station, indicates that the tracks are relatively straight from the Cotton Center crossing to a point some 200 feet east of the place where Johnson says he saw Cratin, and only a gradual curve from that point to the depot.
In Lovegrove v. Missouri Pacific Railroad Co., 245 Ark. 1021, 436 S.W. 2d 798 (1969), we held:
“When the asserted negligence is a failure to keep a constant lookout the carrier is entitled to a directed verdict if the undisputed testimony of the train crow shows that such a lookout was being kept. St. Louis-San Francisco Ry. v. Spencer, 231 Ark. 221, 328 S.W. 2d 858 (1959). But the jury may disregard the crew’s testimony when it is inconsistent within itself or contrary to other accepted testimony in the case. Railway Co. v. Chambliss, 54 Ark. 214, 15 S.W. 469 (1891).
In this case too, Johnson testified that he was keeping a proper lookout but when his testimony is considered in connection with the plat and testimony of the other witnesses we find that a jury question was made ou the lookout issue. Untiedt testified that a person from (Vatin's position, that is, west of the depot., could see a train for two miles. Johnson did not testify that he saw (Vatin when he first came on the track or that there was any obstruction to prevent him from seeing him a few seconds prior to the time that he actually observed him. When wTe consider that the train was traveling at a speed of 66 feet per second, and that it. only lacked a 100 or 150 feel of being stopped in time to avoid the collision, we find that under the circumstances there was sufficient evidence to go to the jury on the issue of whether a proper lookout was being maintained. This is particularly true in a case such as this where (Vatin had to be on the tracks or in the vicinity thereof for a period in excess of 10 seconds to have run to the point described by the fireman. For this reason we hold that the trial court was in error in directing a verdict for the railroad.
We find no merit in Untiedt’s contention that the railroad had a duty to maintain the highway approaches to the railroad tracks. To support his contention, Untiedt relied upon Ark. Stat. Ann. § 73-614 (Repl. 1957) and St. Louis, Iron Mt. & Southern Railway Co. v. Smith, 118 Ark. 72, 175 S.W. 415 (1915) and Payne v. Stockton, 147 Ark. 598, 229 S.W. 44 (1921). However, by the Acts of 1929, No. 65 § 59, an Act to Amend and Codify the Laws Relating to State Highways (Ark. Stat. Ann. § 76-517 [Repl. 1957]), it was provided:
“It shall be the duty of the members of the Highway Commission and of the State Highway Engineers, on all trips in the State to particularly observe crossings of railroads on State highways, and it shall be the duty of all railroad companies and the owners of tramroads whose lines intersect or cross any of the highways of the Slate to improve that part of the roadway between their tracks and to the end of the cross ties on each side with the same material (wherever practicable), with the same foundation and surface as that in the adjoining portions of the roadway and to maintain such crossings in a good .state of repair, and said Highway Commission shall have power and authority to require any and all railway companies to build and construct- roads under their tracks at such crossings as in the judgment of the Commission will be for the best and safest interest of the traveling public.* * *”
As we interpret this statute it limits the duty of all railway companies whose lines intersect or cross any of the highways of the state to improve all of that part of the roadway between their tracks and to the end of the cross ties on each side and relieves them from any duty of maintenance beyond the end of the cross ties.
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Frank Holt, Justice.
Appellant charged appellee with grossly negligent malpractice in prescribing Schedule II drugs in violation of Ark. Stat. Ann. § 72-613 (e) (g) (Supp. 1977) and with violation of both the State and Federal Controlled Substances Acts. Appellant issued an order directing appellee to appear before the Board (34 days later) and show cause why his license to practice medicine should not be revoked. On the date set for the hearing, appellee renewed his request for a continuance, insisting that the large number of prescriptions in question required additional time for trial preparation. Appellant granted appellee’s request for a continuance on the condition that appellee refrain from prescribing Schedule II drugs pending the hearing. Appellant, however, refused appellee’s request for a closed hearing unless compelled by the courts to do so. Thereupon, appellee filed a petition for a writ of certiorari in the circuit court seeking a reversal of appellant’s order restricting his prescribing practices and refusal to hold a closed hearing. The court ruled that the Board had no authority to restrict appellee’s prescribing practices prior to the hearing on the show cause order and that the appellee could continue his practice without restriction until a hearing was held before the Board. The court also ordered that the hearing be closed.
Appellant first contends that the lower court erred in holding the physician-patient privilege mandated a closed hearing. Ark. Stat. Ann. § 28-1001, Rule 503 (b) (c) (Repl. 1979), which codifies the privilege, provides:
(b) A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.
(c) The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communica tion is presumed to have authority to claim the privilege but only on behalf of the patient.
The policy behind this privilege is to encourage patients to communicate openly with their physicians and to prevent physicians from revealing the infirmities of their patients. Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S.W. 720 (1914); 81 Am. Jur. 2d, Witnesses, § 231; 8 Wigmore, Evidence § 2380 (McNaughton rev. 1961).
In insisting on a closed hearing, appellee argues that he only seeks to preserve the confidentiality of his patient and that this can result only from a closed hearing. It is true that appellee, by oath and statute, must guard or preserve the confidentiality of his patient so long as the patient claims the privilege. However, any right appellee has to invoke the privilege exists whether the hearing is open or closed. Further, the assertion of the privilege in an open hearing may or may not necessitate closing the hearing while certain matters are discussed. As appellant correctly observes, there is “but slight connection between the patient-physician privilege rule and the question of an open or closed hearing.” In our view, Rule 503 (b) (c) does not, contrary to appellee’s assertion, mandate that a hearing be initially closed. Consequently, the court erred in holding that the mere existence of the privilege mandated a closed hearing. As pointed out by the appellee, the applicability of the Freedom of Information Act was presented to the trial court; however, that issue is not raised here by appellant.
Appellant next asserts that the court erred in holding that the Board had no authority to restrict appellee’s prescribing practices by granting him a continuance on the condition that he not prescribe Schedule II drugs in the interim. When appellee initially requested a continuance, the Board advised that its policy was not to continue a hearing where a physician was charged with excessive prescribing of Schedule II drugs unless the physician agreed not to prescribe Schedule II drugs in the interim. On the hearing date, the Board reiterated its policy and then granted the conditional continuance. There is nothing in the record indicating whether the continuance was by agreement, as asserted by appellant, or that the condition for a continuance was with appellee’s acquiescence. No written order was entered.
The Board clearly has the authority to revoke or suspend a physician’s license if it finds that the physician has committed an act, as alleged here, which is defined to be “unprofessional conduct” by the statute. § 72-613. The Board also has the authority to summarily suspend a license pending a hearing if it finds that emergency action is required and ‘ ‘incorporates a finding to that effect in its order. ’ ’ Ark. Stat. Ann. § 5-712 (Repl. 1976).
It is true that appellee’s license to practice medicine was not suspended under either of the above statutes. Here the Board, as an agency of the State, granted appellee’s renewed request for a postponement of the scheduled hearing upon the condition he refrain from prescribing a certain class of narcotics in the interim. The Board’s position is that the drugs being prescribed had a high potential for abuse which could result in severe psychic or physical dependence and addiction. Public policy requires strict regulation and close scrutiny of the dispensation of narcotic drugs. Hosto v. Brickell, 265 Ark. 147, 577 S.W. 2d 401 (1979). Here the Board, although apparently prepared at the hearing to hear evidence on the charges enumerated in its show cause order, granted appellee’s renewed request for a continuance merely to accommodate appellee for additional time to prepare his defense. Suffice it to say that granting of the continuance here was a matter of grace and not a right. We are of the view that the court erred in holding the Board had no authority to temporarily restrict appellee’s prescribing practices as a condition to granting a continuance.
Reversed and remanded.
Harris, C.J., not participating.
Purtle, J., dissenting in part. | [
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Conley Byrd, Justice.
This messy divorce case arises out of the stormy marriage between appellant J. C. McCaa, Jr. and appellee Norma P. McCaa. The parties were married on July 12, 1964, following a divorce between J. C. and his first wife Madeline in which Norma ■was named corespondent. Following a separation on Feb. 21, 1965, Norma filed suit for separate maintenance and J. C. counterclaimed for divorce. At a hearing on Sept. 8th 1965, the trial court found that neither party was entitled to the relief prayed for, each being found equally guilty. In that decree the trial court also found, “that all rights to possession of property as between the parties are hereby adjudicated, it being the finding of 'this 'court that neither of the parties should take any interest or share in the property of the other; that this property right adjudication should be res judicata in any divorce action or litigation that may occur hereafter between the parties on the grounds of three years separation ...”
Tlie present action was instituted on May 25, 1967, by Norma who alleged a resumption of marital relations following the 1965 decree and sought a divorce upon the ground of personal indignities and adultery allegedly committed with a Miss Arnold. ' Mr. McCaa counterclaimed for divorce upon the grounds of three years separation. The trial court found that the parties had resumed their marital relations following the Sept. 8, 1965, decree; denied Mr. McCaa his :divorce upon the grounds of three years separation; and awarded a divorce to Norma upon the grounds of adultery. In so doing the court recognized that by operation of law Norma would be entitled to 1/3 interest for life in any real estate and 1/3 interest in any personal property of McCaa. Mr. McCaa has appealed contending that the trial court failed to give full faith and credit to the 1965 decree; that Norma’s testimony and that of her witnesses failed to meet the requirements of corroboration in order to sustain a divorce for adultery; and that the Chancellor abused his discretion in granting the divorce — i.e., his findings are contrary to preponderance of the evidence.
Me find appellant’s contentions to be without merit. Norma, her daughter, her mother and Joe Russell all testified that McCaa and Norma purchased a house from Joe Russell on Cranford Street in Memphis into- which they moved during September 1966, and in which they lived and cohabitated until November 12th or 13th of 1966, In fact Joe Russell testified that Mr. and Mrs. McCaa spent one night at the house before it was purchased and that he and his wife served them brunch the next morning.
Norma testified that following the last separation she found her husband at Pete’s and Sam’s Restaurant in Memphis with two women and that when she started checking on the girls, that she ran across Miss Arnold’s name, whom she met in January 1967. That in January 1967, she and Miss Arnold went to Mr. McCaa’s home in West Memphis about 8:30 A.M. and observed one Mrs. Hart in the middle of Mr. McCaa’s bed with only a pajama shirt on.
Miss Arnold, age 25, testified that she met Mr. Mc-Caa in January in 1966 while living in Osceola. That in March 1966, she moved to an apartment in Memphis which she and Mr. McCaa had picked out together and that their intimate relationship continued for approximately one year until she became aware of his interest in Mrs. Hart.
Mr. McCaa denies that he resumed his marital relationship with Norma; denies his adulterous relationship with Miss Arnold; and asserts that Mrs. Hart was at his house in January 1967 only to make some telephone calls while she was waiting on her automobile to be repaired. On cross ¡examination he admitted having been out to dinner with Mrs. Hart and having been to Kentucky to visit with Mrs. Hart and her children. He also explained that Mrs. Hart at the time of trial was in Kentucky with her parents and that he wouldn’t involve her in this “mess”.
The 1965 decree is obviously not res judicata of the cause of action herein proved. We held in McKay v. McKay, 172 Ark. 918, 290 S.W. 951 (1927), that a decree denying a divorce was not res judicata of a cause of action not then in existence. The same rule is here applicable.
It is true that in Payne v. Payne, 42 Ark. 235 (1883), we pointed out that courts are reluctant to grant a divorce upon the uncorroborated testimony of a particeps criminis. However in a case such as this where one particeps criminis openly admits the adulterous relationship and another woman is found in the husband’s boudoir clad only in a pajama top, we are unwilling to say there is insufficient evidence to sustain the trial court’s finding of adultery.
Neither can we say that the trial court’s finding upon the whole case is contrary to a preponderance of the evidence.
Affirmed.
Fogleman, J., disqualified. | [
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Carleton Harris, Chief Justice.
This is a case of first impression in this state. On January 15, 1968, appellee, Wanda Lee Thomas, instituted suit against appellant, Leslie Thomas, seeking an absolute divorce. On March 26, 1968, the parties entered into a “property and support agreement,” setting out that it was “the desire' of the parties hereto to settle, compromise and determine their respective rights, duties and obligations with regard to support, property and financial matters * * Included in the agreement was a provision requiring Mr. Thomas to pay to Mrs. Thomas, as alimony and support, the sum of $35.00 per week, beginning on April 6, 1968. Thereafter, on May 29, 1968, a decree of divorce was entered, granting appellee an absolute divorce from appellant, the decree reciting that the parties had entered into a certain property and sup port agreement, which liad been filed and approved by the court. The actual order in the decree reads as follows :
It is, therefore, by the Court considered, ordered, adjudged and decreed that the plaintiff be, and she is hereby, awarded an absolute divorce of and from the defendant; that the Property and Support Agreement entered into by the parties which is filed herein, be, and the same is hereby, specifically approved by the Court and is adopted and incorporated herein as a part and parcel of this Decree in settlement of the respective rights, liabilities, and obligations of the parties hereto; and that the defendant bear the costs of this action and attorney’s fees incurred herein.
“It is so ordered.”
Thereafter, appellee filed a petition asking that Leslie Thomas be cited for contempt of court, the petition alleging that appellant had failed to comply with the provision in the agreement requiring the payment of $35.00 per week to Mrs. Thomas. On hearing, the court found appellant in contempt, and ordered that he be confined in the Washington County Jail for a period of 10 days. From the order so entered, appellant brings this appeal. The sole point for reversal is that the court had no authority to hold appellant in contempt under the wording of the decree, appellant asserting that the court made no order requiring Mr. Thomas to comply with the terms of the property settlement.
At the outset, it might be stated that there is authority on both sides of the question of whether' a court can enforce, by contempt proceedings, a property agreement reached in contemplation of divorce. Cases are cited by both appellant and appellee, holding with their respective positions. It is our view that the question, in this state, is determined by statute, viz., Ark. Stat. Ann. §. 34-1212 (Repl. 1962). Prior to 1941, the controlling statute was Section 4391 of Pope’s Digest, which provided :
“The court may enforce the performance of any decree or order for alimony and maintenance by sequestration of the defendant’s property, or that of his securities, or by such other lawful ways and means as are according to the rules and practice of the court.”
In 1941, the Legislature amended this section, same now appearing as Section 34-1212, and reading as follows :
“Courts of equity may enforce the performance of written agreements between husband and wife made and entered into in contemplation of either separation or divorce and decrees or orders for alimony and maintenance by sequestration of the defendant’s property, or that of his sureties, or by such other lawful ways and means, including equitable garnishments or contempt proceedings as are in conformity with rules and practices of courts of equity.”
This action by the Legislature clearly seems to have been taken for the purpose of enabling the Chancery Court to enforce the performance of written agreements between husband and wife entered into in contemplation of divorce, i.e., to cover situations like the one presently before us. It will be noted that the amended statute also specifically includes contempt proceedings as one means of enforcement.
Nor do we agree with appellant that, under the decree, no order to make the weekly payments was entered. The pertinent part of that decree, heretofore quoted, commences, “It is, therefore, by the Court considered, ordered, adjudged and decreed.” this language relating to three items which follow. .First, it is ordered that the plaintiff is awarded an absolute divorce “from the defendant; * * V’ Following the semi-colon, the decree provides that the property and support agreement is incorporated as a part of the decree in settlement of “the rights, liabilities, and obligations of the parties hereto; * * Immediately after this semi-colon, there appears the language, “and that the defendant bear the costs of this action and attorney’s fees incurred herein.” In other words, the opening line wherein the word, “ordered,” is used, applies fully as much to the second clause (relating to the settlement) and to the third clause (referring to the costs) as to the first clause (awarding the divorce).
We think that, in addition to the statute, simple logic supports this view. It is certainly logical that a court, in order to maintain the respect of those who appear before it, be able to enforce the provisions sanctioned by it in a decree of divorce. A like situation was at issue in the case of Solomon v. Solomon, 149 Fla. 174, 5 So. 2d 265. There, a husband and wife executed a property agreement in contemplation of divorce, the agreement setting out that the “ ‘ decree shall provide that the husband shall pay to the wife $300.00 per month on the first of each * * * month.’ ” The final divorce decree was eventually entered, but contained no express provision for the payment of the stipulated amount of alimony, such decree simply reciting “that the property settlement and agreement * * * is hereby approved and ratified in all respects, and incorporated by reference into this decree and made a part hereof. ’ ’ The Chancellor directed the husband to show cause why he should not be held in contempt for disobedience of the decree by failing to meet some of the payments, but on hearing, refused to hold the husband in contempt. On appeal, Mr. Solomon took the same position relied upon by Mr. Thomas in the case before us. Mr. Justice Thomas in a succinct and learned opinion, speaking for the court, said:
“There can be no doubt that the court in the decree sanctioned the arrangement the parties had made between themselves anent the discharge by the husband of his legal and marital duty to support the wife even after the marriage tie was severed and until she remarried.
“It is the appellee’s position that, although the appellant has her remedy to collect the amount due, she cannot resort to proceedings in contempt for that purpose because no specific order was made by the chancellor commanding the appellee to meet the promised payments and that, therefore, he could not be puuished for defiance of the decree.
“It seems to be the rule that where such an agreement is merely ratified and not made a part of the final decree, the husband is not responsible in contempt proceedings for default on his part, but if the agreement is embodied in the decree and contemplates when executed that it shall become a part of the court’s order, a failure of the husband is punishable by contempt.
Here, the property and support agreement was not only specifically approved by the court, but -was adopted and incorporated as part of the decree in setting out the obligations of the parties.
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Frank Holt, Justice.
Tliis is an action by a tenant against bis landlord to recover damages for personal injuries. The tenant, who is the appellant, slipped and fell when he stepped on some ice at the bottom of an outside stairway. Appellant’s complaint asserts that appellee, the landlord, was negligent in that the apjjellee failed to correct an unsafe condition which he knew to exist, or would have known to exist in the exercise of reasonable care. After appellant presented his evidence and rested his case, the court directed a verdict in favor of the appellee. This appeal comes from the judgment based on the directed verdict.
For reversal the appellant contends that the trial court erred in granting appellee’s motion for a directed verdict on the basis that the appellee (landlord) had no duty to the appellant (tenant) to remove a natural accumulation of ice and snow from a common stairway or passageway.
The appellee’s two-story apartment building consists of eight apartments, with four units on the ground level and four units on the second floor. The sole means of ingress and egress from appellant’s second-floor apartment was a common stairway in the middle of the building from the second floor down to the main landing where the stairway splits to the left and right into separate stairways. The incident occurred in February of 1966. On the day before the accident there was a heavy snowfall, however, it seems it had not snowed on the day-appellant slipped and fell. At approximately 8 p.m. appellant, accompanied by a friend, proceeded down the first flight of stairs to the main landing. The stairway oil the right, which appellant had traversed on three separate occasions following the snowfall, appeared to have retained the most snow on it so appellant decided to try the stairway on the left. According to appellant, as he stepped from the bottom step onto the landing he slipped on some ice causing him to fall which resulted in injuries to his neck, back and right elbow. Appellant testified that he descended the stairway very cautiously. Appellant’s version of the conditions and the cause of the accident was corroborated by the friend who was accompanying him. Appellant made no effort to remove the natural accumulation of snow and ice, nor did he acquaint the appellee with the existence of this temporary hazard. In fact, appellee was first notified of the accident in July of 3966.
It is the contention of appellant that his landlord, the appellee, had a duty to remove the natural accumulation of snow and ice from the stairway which was for the common use of all the tenants and, this being true, there was substantial evidence, when viewed most favorably to the appellant, to make a jury question of negligence and constructive notice of the hazardous condition.
The courts which have considered the issue in the case at bar are divided. One line of authorities supports what is known as the Massachusetts rule which holds that a landlord is under no obligation to remove a natural accumulation of ice and snow from common passageways or areas retained in the landlord’s control for the common use of his tenants. Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 45 Am. Rep. 344 (3883), and reiterated in Spack v. Longwood Apartments, Inc. 338 Mass. 518, 155 N.E. 2d 873 (1959). The reasoning is that there is no duty on the part of the land lord to tlie tenant to remove a temporary hazard such as ice and snow from common passageways. This common law, or Massachusetts rule, is based upon the premise that a duty to remove snow and ice from common passageways would subject the landlord to an unreasonable burden of vigilance and care and a landlord should not be responsible for such temporary natural hazards as the expected acts of nature over which he has no control and It would be unreasonable to require the landlord to be subjected to the duty of keeping a janitor on the premises at all times merely to insure the immediate removal of snow and ice.
The appellant ably and forcefully argues that we should adopt the Connecticut rule which he contends is the more modern and enlightened approach to this issue. Many courts have found favor with this rule which imposes, upon the landlord the duty to exercise reasonable (‘are with respect to keeping the premises free from accumulations of ice and snow. This duty of reasonable c-are is imposed upon the landlord where he had notice, actual or constructive, of such a temporary hazard and reasonable opportunity to correct it. Reardon v. Shinudmau, 102 Conn. 383, 128 A. 705, 39 A.L.R. 287 (1925). The Massachusetts rule is expressly rejected by this case. See, also, Harper & James, Law of Torts, Vol. 2, § 27.17; Prosser, Law of Torts (2d Ed.) § 80; 32 Am. Jur., Landlord & Tenant, § 696.
In the recent case of Pomfret v. Fletcher, 208 A. 2d 743 (1965) the Supreme Court of Rhode Island considered the general or common law rule and the Connecticut rule and stated:
“After consideration of the authorities on both sides of the question, we are of the opinion that the Massachusetts rule [common law rule] is preferable to the contrary rule in certain other jurisdictions regardless of numerical weight. We realize that it has met with sharp criticism in Reardon v. Shi melman, 102 Conn. 383, 128 A. 705, 39 A.L.R. 287, and United Shoe Machinery Corp. v. Paine, 1 Cir., 26 F. 2d 594, but we are not persuaded that such criticism lias destroyed or seriously impaired the reasoning upon which the Massachusetts cases rest. ’ ’
See, also, Burkin v. Lewitz, 3 Ill. App. 2d 481, 123 N.E. 2d 151 (1954); 25 A.L.R. 2d 367, 446; 26 A.L.R. 2d 613; 25 A.L.R. 1301.
We have had occasion to consider the duty that a landlord owes to his lessee to keep the common passageway properly lighted on the premises. Joseph v. Riffel, 186 Ark. 418, 53 S.W. 2d 987 (1932). There a tenant sought to recover for damages suffered when he fell down an elevator shaft from an unlighted corridor. It was urged that this was a contributing factor to the tenant’s injuries. We said:
“As between a landlord and tenant, the general rule is that, ‘in the absence of statute or agreement, the landlord is under no legal obligation to light common passageways for the benefit of tenants.’ 36 C.J., § 891, p. 214. In § 893 of the same work, it is stated: ‘On the analogy of a lack of duty on the part of the landlord to light common passageways, it lias been held that a landlord is not liable for injuries received by a tenant through the failure of the landlord to supply rails or guards when the condition was the same at the time of the letting.’ ”
The appellant forcefully argues that we should now reject the import of this case and subscribe to the Connecticut view. Having previously held that a landlord is not obligated to light that portion of the premises reserved for common use, we cannot say that a landlord owes the duty to remove such temporary hazards as a natural accumulation of ice and snow from a common stairway. Such a distinction could not be supported by logic or reason. There is no evidence in the case at bar of any agreement or assumption of duty that removes the appellant from the general rule to which we are committed.
Affirmed. | [
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