author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    Youvanna STULL, as Administratrix of the Estate of Windy Kay STULL, Deceased, and Individually v. James M. RAGSDALE
    81-75
    620 S.W. 2d 264
    Supreme Court of Arkansas
    Opinion delivered July 6, 1981
    [Rehearing denied September 21, 1981.]

      Ray & Donovan, for appellant and cross-appellee.

      Butler, Hicky & Hicky, Ltd., for appellee and cross-appellant.
   Frank Holt, Justice.

This is an appeal from a judgment in which the trial court awarded only the funeral expenses to the estate of the deceased in a wrongful death and survival action. The court disallowed any recovery to the deceased’s parents for mental anguish by imputing the negligence of the mother, apportioned by the jury at 75%, to the father.

The Stulls’ four year old daughter Windy was killed when she was struck on the highway in front of her home by a truck driven by appellee. Mrs. Stull had put her two small children down for a nap shortly after lunch and after they fell asleep she also fell asleep on the couch with them. Her husband was away at his regular employment. She was awakened by a truck driver who told her a child had been killed on the highway. The child, Windy, had crossed the highway to the Stulls’ mailbox and was returning when she was struck. Appellee testified that when he first saw Windy she was standing at a mailbox, facing it, with her back to the highway. She turned her head and looked his way, then looked the other direction, from which another truck was approaching. He thought she had seen both trucks. He let off the gas and was slowing down, or coasting, having moved over a little towards the centerline, watching her. When he got between six and ten feet from her she sprinted onto the highway and into the side of his truck as he cut to the left in an effort to avoid hitting her. Mrs. Stull, individually and as administratrix, brought this action.

The issues were submitted to the jury on interrogatories. The jury apportioned 25% negligence to appellee and 75% to Mrs. Stull. The jury awarded each parent @49,210 as damages for mental anguish. Funeral expenses of @1,578.31 were found in favor of the estate. Because Mrs. Stull was found responsible for over 50% of the negligence, there could be, the court held, no recovery by her nor Mr. Stull.

The first issue raised on appeal is whether the court erred in holding that negligence of one parent, as here, is imputed to the other so as to bar recovery for mental anguish by the other parent. The majority of non-community property jurisdictions deciding this issue have held that where the negligence of one parent combines with the act of a third person, as here, to cause injury to the parent’s child that parent’s negligence is not imputed to the other parent. However, there are numerous jurisdictions which hold to the contrary. For a summary of these opposing views, see Anno., 66 ALR 2d 1325; 2 Speiser, Recovery for Wrongful Death (2d) § 5.9; 494a Restatement of Torts (Second); 65A C.J.S. Negligence § 159 (1966); Henry Woods, Comparative Fault § 9.5 (1978); Schwartz, Comparative Negligence § 13.4 (1974); 67A C.J.S. Parent and Child § 145 (1978).

Here in support of her argument that her negligence should not be imputed to her husband appellant argues that we have held that the negligence of a parent is not imputed to the child, Miles v. St. Louis, I.M. & S. Ry. Co., 90 Ark. 485, 119 S.W. 837 (1909); that the negligence of a parent is not imputed to a child’s estate, Nashville Lumber Co. v. Busbee, 100 Ark. 76, 139 S.W. 301 (1911); and that the negligence of one spouse is not imputed to the other in a situation involving personal property, Wymer v. Dedman, 233 Ark. 854, 350 S.W. 2d 169 (1961), and Willingham v. Southern Rendering Co., 239 Ark. 858, 394 S.W. 2d 727 (1965). However, there is a community of interest between the husband and wife in regard to the care and supervision of their children. As stated in Darbrinsky v. Pennsylvania Co., 248 Pa. 574, 94 A. 269 (1915):

[W]hile the family relation exists, each parent at all times impliedly authorizes the other to act for him or her in the common care and control of their children, so that each becomes responsible for the acts of the other in that respect, and this implied authority does not rest upon the legal fiction of the unity of husband and wite, but is founded upon the family relation.

Some jurisdictions which hold one spouse’s negligence, as here, is imputed to the other reason that when the recovery will not go to pay specific expenses incurred as a result of the accident, the realities of the situation are that the negligent parent will undoubtedly share or jointly benefit in the full recovery by the other spouse, in spite of what may be substantial negligence on his or her part and thus benefit or profit from his or her own wrong.

The purpose of our comparative negligence statute is to distribute the total damages among those who caused them. Walton v. Tull, 234 Ark. 882, 356 S.W. 2d 20 (1962). For this reason we believe that to deny recovery altogether would be far too harsh, just as requiring the defendant to pay 100% of the damages in the circumstances here is also unjust. Therefore, in a wrongful death action in which one parent is found negligent, as here, we believe the better result would be to permit recovery of damages by reducing the award of damages to the non-negligent parent by that amount of negligence attributed to the other parent. Such a rule recognizes the majority view that an innocent beneficiary should be entitled to recover damages. Accordingly, Mr. Stull’s award of @49,210 should be reduced by'75%, the negligence attributed by the jury to Mrs. Stull. Stated another way, he should be allowed to recover to the extent of the negligence of appellee only, i.e., 25%, and not for his wife’s negligence. Consequently, Mr. Stull’s recovery stems only from the fault or the degree of negligence of the appellee, driver of the truck. It follows that the jury’s award should be reduced to @12,302.50. The judgment, being based upon interrogatories or a separate verdict, is so modified and affirmed. See Womack v. Brickell, 232 Ark. 385, 337 S.W. 2d 655 (1960).

The next point asserted for reversal is that the judge erred in refusing to give an instruction requested by appellant. The trial judge did give the first part of AMI 901 (b), concerning the duty of a driver to keep his vehicle under control. However, he refused to give the second part of that instruction, regarding the duty to have the vehicle under such control as to be able to check its speed or stop it, if necessary, to avoid damage. We note that neither the request for the instruction nor the court’s ruling is abstracted. We have often held that where the appellant does not abstract a material part of the record necessary to decide the issue, we will affirm under Rule 9 (e) (2) of the Rules of the Supreme Court and Court of Appeals. See Collier v. Hot Springs S & L Ass’n, 272 Ark. 162, 612 S.W. 2d 730 (1981). Furthermore, the court had granted a motion for a directed verdict on the allegation in the complaint that appellee failed to slow his vehicle to such a speed that would enable him to be able to stop should the child attempt to cross the road. In doing so, the trial judge asked the appellant’s attorney what his position was on the motion for directed verdict on this allegation, to which the attorney responded, “I’m not real concerned about it, Your Honor, really.” Thus, although this allegation was apparently based upon AMI 605 and not 901 (b), it is so related that the waiver of objection to the directed verdict on this point and the subsequent directed verdict on the issue support the trial judge’s denial to give this instruction. We find no prejudicial error.

It is also urged that it was error for the court to strike that part of the complaint asking for loss of future earnings and/or net accumulation of the estate had the deceased lived a normal life expectancy. Appellant admits “such recovery is normally not permitted in Arkansas and is not included in Arkansas Model Jury Instructions.” He does not cite any persuasive authority for such a recovery for the benefit of the estate in Arkansas, candidly admitting that an annotation at 76 ALR 3d 123 does not include Arkansas cases in those cases cited which permit such a recovery. Further the jury was allowed to consider and found no loss of services of the minor in this action, as permitted by AMI 2216. Appellant has demonstrated no prejudicial error.

Appellant next contends it was error to not permit him to argue to the jury in closing that the assessment of such damages pursuant to an interrogatory is not the same as rendering a verdict for the defendant for that amount. We find no error. The note to AMI 2102 states that this instruction is not to be used when the case is submitted on interrogatories. Also, we have held it is reversible error to inform the jury of the effect of its answers on the ultimate liability of the parties in a case submitted, as here, on interrogatories. See International Harvester Co. v. Pike, 249 Ark. 1026, 466 S.W. 2d 901 (1971).

Neither do we find any merit in appellant’s contention that the court erred in refiising to permit the appellant to offer testimony about the driving habits of the appellee for purposes of establishing damages for mental anguish. Suffice it to say that it appears this evidence was later introduced when objections were withdrawn, as observed by the court, about the admissibility of this and other evidence.

Finally appellant contends there was no substantial evidence from which the jury could find her guilty of negligence. We disagree. The evidence before the jury was that appellant had put her two small children down for a nap on the couch shortly after lunch and fell asleep herself. While she was asleep her daughter awoke, left the house, crossed the highway to the mailbox and was attempting to return when struck by appellee’s truck. There was evidence that appellant considered herself at fault. There was also evidence that Windy had been seen unattended playing on the shoulder of the road on earlier occasions. Appellant’s negligence was a fact question for the jury and there is substantial evidence to support its finding.

Appellee raises three points on cross-appeal. The first is that the jury verdict in favor of the father was excessive in that the proof of his mental anguish was weak. Under the facts of this case we do not believe the jury’s award of $49,000 is so excessive as to shock the conscience of the court or demonstrate passion or prejudice. See Moses v. Kirtley, 256 Ark. 721, 510 S.W. 2d 281 (1974). Here there was evidence he missed 2 or 3 weeks of work because he was upset; when he was not working he and Windy were together “all the time”; looking at the scene of the accident upset him; they moved from the area about a year later; he took down the photographs of Windy because he could not look at them; he thought of her every day and dreamed of her. He would not talk about his daughter and told his wife to “hush” when she tried to talk about her. It has affected their marriage, their communication. He sometimes just sits at home, as his wife testified, “upset, and I can just hear him mumbling over in his mind that he lost everything when he lost her.”

Appellee also argues under this point that some of the jurors had sat on a recent case during the same term of court, which case was also submitted on interrogatories, and in which subsequent communication by the jury indicated they had not wanted the verdict there reduced by the percentage of negligence attributed by them to the plaintiff. Appellee contends there were 8 of these jurors qualified in this case, and he used all of his peremptory challenges to remove as many as possible but 4 remained. He states he then moved for a mistrial in chambers. None of this appears in the abstract. As previously noted, we affirm under such circumstances. Appellee also raises a statement made on voir dire by one of the panel, which statement, again, is not abstracted. It is impossible to tell how many jurors were removed by appellee’s peremptory challenges, appellant contending it was only 2. A sufficient answer is, however, that appellee’s argument is a subject which should be sufficiently determined upon voir dire of the jury.

Under this point is also raised the contention that the court erred in not first submitting to the jury the interrogatory on liability and then, if necessary in view of the answers to that interrogatory, submitting the interrogatory on damages. We find no error. We fail to see how this would have prevented the error appellee alleges occurred as a result of the jury’s not knowing the effect of their appointment of damages upon the verdict.

The appellee also contends there was not a fair trial and his motion for mistrial should have been granted. The foreman of the jury inquired during the jury’s deliberations if they found the defendant guilty of 60% negligence and gave a judgment of $100,000, would Mrs. Stull get 60% of that amount. The judge stated he could not answer that. The attorney surmised mat the jury was tainted since some of these jurors had recently sat on the other case similar to this one, based on interrogatories, which resulted in a finding of damages in a lesser amount than that jury intended. Appellee further argues that here, after the verdict was read and the jurors were dismissed, several of the jurors returned to the courtroom where they were questioned by appellant’s counsel over the appellee’s objections. The results of that questioning indicated the jurors had attempted to increase or inflate the award to the appellants to allow for what they thought would be only a 75% reduction of the award (approximately $ 100,000) so that the final award would be approximately $25,000 to each of the parents. The Uniform Rules of Evidence, Rule 606, provides that a juror may not testify as to any matter occurring during the deliberations or to the effect of anything on his or any other juror’s mind influencing him. This testimony was clearly improper and cannot be considered. Further, the trial court has a wide latitude of discretion in acting on a motion for a mistrial and will not be reversed on appeal absent a manifest abuse of that discretion. Dickerson Const. Co. v. Dozier, 266 Ark. 345, 584 S.W. 2d 36 (1979). Certainly, there was no abuse of discretion by the court in denying appellee’s motions for mistrial based upon his arguments that he was denied a fair trial.

The final point raised on cross-appeal is that testimony concerning the funeral bill was improperly introduced into evidence. It is argued that the bill was not paid by the estate nor by the parents, but by Mr. Stull’s employer. However, Mr. Stull stated he is obligated to repay it. The only objection, when Mrs. Stull testified, was that the bill and not her testimony was the best evidence. Thereupon, she produced a paid receipt to which there was no objection made.

Affirmed as modified on direct appeal.

Affirmed on cross-appeal.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority has marched full speed ahead into the Nineteenth Century with this opinion. In the first place I fail to see how a mother who takes a nap with her child at noontime is negligent when the four-year-old child awakens and strays outside and into the street. Compounding the error of finding a sleeping mother 75% at fault when a speeding truck struck and killed her daughter is to hold the father, who was away earning a living by the sweat of his brow, to be negligent through the action of his wife. If this is justice, then I am sure many people will hope to avoid it in the future or try to take their cases to the Court of Appeals.

The majority holds and cites Arkansas precedent to the rule that the negligence of a parent is not imputed to a child; the negligence of a parent is not imputed to the child’s estate; and that the negligence of one spouse is not imputed to the other in a situation involving automobile damages. Both parties have an interest in the family automobile. Each spouse benefits if a third party restores damages inflicted upon the vehicle while being operated by the other spouse. I submit that no reasonable rationale should impute the negligence of one parent to the other for injuries to their child or its estate. Is an automobile more valuable than a child’s life?

Since this is a case of first impression, we ought to follow the most just and reasonable theory in such cases rather than go to other jurisdictions and dig up old stale cases. We have been on the progressive and enlightened path in matters of imputing negligence in all other similar situations such as were mentioned above in this dissent. We are not using the same gauge if we refuse to impute negligence in a vehicle damage case and reject it in a personal injury or death case. The majority refers to Walton v. Tull, 234 Ark. 882, 356 S.W. 2d 20 (1962), as an example of comparative negligence. If Tull stands for anything, it stands for the fact that a tort feasor who is no more negligent than the injured party must pay all the injured party’s damages if other joint tort feasors are unable to pay. Brigham and Tull were each 10% at fault. The other two parties, in this three vehicle accident, were guilty of negligence in the degree of 60% and 20% respectively. Tull, if it relates to this case at all, is supportive of the appellant’s position. Furthermore, Tull was a guest in his own vehicle at the time of the injury and admittedly his driver was not guilty of willful and wanton conduct. The majority states that Tull recognizes the view that an innocent beneficiary should be entitled to recover damages. That is not so. Tull was guilty of contributory negligence equal to that of Brigham from whom he was allowed to recover. In the present case the father of the child was not negligent in any manner whatsoever.

There is absolutely no evidence that the husband had any knowledge of his wife’s habit, if it was a habit, of taking a nap at noontime nor is there any evidence of any kind or nature to imply that the husband was negligent or knew or encouraged his wife’s negligence in taking a nap at noon. This is indeed a case of first impression in holding one to be negligent by merely taking a noontime nap in his own home.

The facts set out in the majority opinion clearly show it was error for the court to direct a verdict for appellee on matters of failure to yield; failure to keep a proper lookout; failure to change lanes; and failure to slow his vehicle to such a speed as would enable the vehicle to stop if necessary to avoid the occurrence. This has been basic tort law in Arkansas for many generations. In fact, the instructions are included in our Model Instructions. This holding is contrary to all reported cases and should not be brushed off by saying that appellant’s attorney was not too concerned with it.

The last error of the majority which I wish to point out is the fallacy of their statement that the court did not err in refusing to allow appellant to show the driving habits of the appellee. I think the most logical way to present this picture is to present the questions and answers as they occurred during the course of the trial. The court had just ruled that the appellee could show the habit of the child in playing on the road when the following colloquy occurred:

MR. DONOVAN: Your Honor, can I offer the testimony then of Mr. Ragsdale driving by this house?
THE COURT: For what purpose?
MR. DONOVAN: Habit.
MR. PHIL HICKY: You haven’t alleged it.
MR. DONOVAN: You haven’t alleged it here.
MR. PHIL HICKY: I have alleged that she didn’t properly supervise and care for her children.
MR. DONOVAN: Yes, but that’s on the day of the accident.
MR. PHIL HICKY: That’s general. I alleged that she did not supervise and keep a proper lookout of young chldren, what a mother has an obligation to do.
MR. DONOVAN: Your Honor, whether she supervised the children on the day before or the day after has nothing to do with the day of October the 19th. He was speaking of the day before.
THE COURT: Well, I’m not going to allow you to go into the man’s past driving record for reasons we have already got in the record. Anything else for me to do?

Appellant’s attorney objected to this ruling by the court. Thereafter the appellant agreed to withdraw his objections to the appellee’s testimony by certain witnesses about the habits of the child playing near the road in exchange for being allowed to question Mr. Ragsdale about his habit of speeding up and down the road. This was a shotgun deal and should not be approved by this court. Obviously, the trial court was trying to accommodate the parties and eliminate their objections. However good his intentions were it amounted to forcing the appellant to give up an argument which he should not have had to give up in exchange for the right to put on testimony which he already had the right to do. The majority acts erroneously in burying this objection under the statement that it was withdrawn.

I do not believe it is good law to impute the negligence of the wife, which in this case I think was nonexistent, to the husband in matters involving injury to their children or their children’s estates. He should be allowed to recover nothing at all or he should be allowed to recover his full damages. If her negligence is imputed to him and she was 75% negligent, then clearly he was 75% negligent. I cannot accept the logic of the majority opinion.


source: Caselaw Access Project

author: John I. Purtle, Justice. Darrell Hickman, Justice,

license: Public Domain

text:
    Barney NORTON v. STATE of Arkansas
    CR 81-16
    618 S.W. 2d 164
    Supreme Court of Arkansas
    Opinion delivered July 6, 1981
    [Rehearing denied July 20, 1981.]

      C. Mac Norton, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

The Lincoln Circuit Court denied appellant’s motion for release based upon his contention that he had been denied a speedy trial. Appellant has brought this interlocutory appeal from denial of his motion to dismiss. We will treat the appeal as a Petition for Writ of Prohibition. Appellant urges he is entitled to a dismissal of the charges with prejudice as required by Rules of the Criminal Procedure, Rules 27 through 30. He further argues the rules are unconstitutional in that they have denied him a speedy trial and due process and equal protection of the law based upon Barker v. Wingo, 407 U.S. 514 (1972).

For convenience and understanding of what has happened the events of major importance will be listed in chronological order.

September 11, 1978 Term of court commences in Lincoln County.
January 1, 1979 Appellant and five other inmates escaped and appellant was recaptured.
January 29, 1979 Information filed in Lincoln Circuit Court.
February 12, 1979 New term of court commences.
August 13, 1979 Court appointed counsel for appellant.
August 20, 1979 Court set trial for November 14, 1979.
September 10, 1979 New term of court commences.
October 11, 29, 30, 1979 Motions filed by appellant.
November 8, 1979 Court directs appellants to request continuance (continuance order never filed or marked on docket).
November 14, 1979 Trial date — trial not held.
February 1980 Attorney for codefendant re-to become quests release prosecutor.
February 11, 1980 New term of court commences.
February 26, 1980 Appellant transferred to federal pen in Oklahoma; Arkansas prison personnel destroy appellant’s records.
February 28, 1980 Court trial set for April 8, 1980.
March 1, 1980 Codefendant’s attorney starts work as prosecutor.
March 18, 1980 Appellant’s attorney notified omnibus hearing for April . 1, 1980.
March 20, 1980 Appellant’s attorney confirms hearing and requested presence of appellant.
April 1, 1980 No omnibus hearing held.
April 8, 1980 No trial held, no reason given.
May 4, 1980 Trial set for August 20, 1980
May 20, 1980 Appellant’s attorney notified court his client was in federal prison in Illinois and that omnibus hearing should be held before trial.
June 10, 1980 Appellant’s attorney again requests omnibus hearing.
July 14, 1980 Apellant’s attorney again requests omnibus hearing.
July 31, 1980 Appellant returned to Arkansas.
August 1, 1980 Counsel allowed to visit appellant.
August 7, 1980 Appellant informed omnibus hearing set for August 14, 1980.
August 14, 1980 Omnibus hearing held, speedy trial issue raised, motions to recuse prosecutor, other motions discussed; all denied except for recusal motion, which was taken under advisement.
August 15, 1980 Court informs prosecutor to be recused.
August 18, 1980 Order of recusal and appointing special prosecutor.
August 20, 1980 Appellant not tried but two codefendants were.
August 25, 1980 Appellant renews all motions, requests another hearing; order of continuance filed by court, and severing Divan-ovich and Norton from the other codefendants.
September 8, 1980 New term of court commences.
September 15, 1980 Hearing on motions — all denied; September 22 cut-off date for motions, trial set for October 8-9, 1980.
September 23, 1980 Motion to dismiss for lack of speedy trial and other motions.
September 30, 1980 Motions of September 23 all denied.
October 6, 1980 Notice of interlocutory appeal by appellant.

The Rules of Criminal Procedure govern speedy trials. Rule 28.1 (a) provides:

Any defendant charged with an offense in circuit court and committed to a jail or prison in this state shall be brought to trial before the end of the second full term of the court, but not to exceed nine (9) months, from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Our cases have held that the two terms or nine months really mean that an accused is merely entitled to release from confinement, pursuant to Rule 30.1, after two terms of court, or nine months, and instead would be bound by the three terms set out in Rule 28.1 (b). Wade v. State, 264 Ark. 320, 571 S.W. 2d 231 (1978); Matthews v. State, 268 Ark. 484, 598 S.W. 2d 58 (1980); Bell v. State, 270 Ark. 1, 603 S.W. 2d 397 (1980); Cash v. State, 271 Ark. 881, 611 S.W. 2d 510 (1981).

It is obvious from looking at the above events that more than three terms of court, excluding the term of the arrest, have expired since the appellant was charged. The precise issue for consideration by this court is whether there were any excludable periods of delay which should extend the time within which to bring appellant to trial. The burden is upon the state to show that a period of time should be excluded. Randall v. State, 249 Ark. 258, 458 S.W. 2d 743 (1970); State v. Lewis, 268 Ark. 359, 596 S.W. 2d 697 (1980); Dupree v. State, 271 Ark. 50, 607 S.W. 2d 356 (1980); Divanovich v. State, 273 Ark. 117, 617 S.W. 2d 345 (1981).

We note that although charges were filed on January 29, 1979, an attorney was not appointed for the appellant until August 13, 1979. Thus, for a period of more than six months the appellant did not have the assistance of counsel to help him in any manner. Had the court acted during that time we might not have a problem now.

Rule 28.3 (c) excludes a period of delay resulting from a continuance granted at the request of a defendant or his counsel. However, the only request for a continuance in this case prepared and filed by appellant’s counsel was at the direction of the court, and the prosecuting attorney has executed an affidavit that the motions were prepared solely at the instance of the trial court and the continuance was not due to the motions.

Rule 28.3 (b) provides for an excludable period of time which results from exceptional circumstances, such as congestion of the trial docket. Since the court is required to state such exceptional circumstances in its order continuing the case, we presume there was no such excludable period because there were no exceptional circumstances noted. Furthermore, in studying the abstracts, briefs and record of this case we have not found any order continuing this case although the November 14, 1979 trial date was passed.

It is also argued by the state that the period between the recusal of the prosecuting attorney and the filing of this appeal should be excluded under Rule 28.3 (h) for “other periods of delay for good cause.” We found such exclusion in Divanovich v. State, supra, but the same reason does not apply to appellant because it was not his attorney who resigned. Therefore, there is no reason to include this period in such category because the court was under a duty to immediately appoint substitute state’s attorney. It certainly was not the fault of the appellant that the prosecutor hired a codefendant’s counsel to serve on his staff. Had appellant been granted a severance he would not have been affected by the recusal in the first place. Had a replacement attorney been immediately appointed for the deputy prosecutor in March 1980, there would have been no argument at all for a delay. Certainly, this action was detrimental to the accused and not the state. These being the only two periods of exclusion argued by the state, we do not search for others. We do not find that the state has discharged the burden of proving there were excludable periods of delay which would bring the trial date within the limits set by our Rules of Criminal Procedure. It must be remembered that our rules are the outer limits, and we have stated that we may well grant relief under some circumstances in a period shorter than the maximum allowed by the rules. In Matthews v. State, supra, we stated:

The rules set out in Article VIII of the Rules of Criminal Procedure were an effort to more precisely define what constitutes a “speedy trial” in the interest of persons accused of crime and the public and in clear recognition of Barker v. Wingo, supra. We perceive that there may be a denial of one’s constitutional right to a speedy trial after a period of delay shorter than those permitted under Rules 28 and 30, but a much stronger showing of prejudice would be necessary than that made here to overcome the presumption that a time within the prescribed limits of these rules meets constitutional requirements.

It may be said that any time charges are pending against an inmate is prejudicial inasmuch as he is deprived of credit for good time during the pendency of such charges. Therefore, when a case is pending over an exceedingly long period the prejudice becomes more obvious. In addition, many witnesses were requested to be present in this case. It is logical to assume that many of these witnesses have since become located in different areas of the country or some may have even died. Another obvious prejudicial effect of the action taken by the state was the willful and deliberate destruction of appellant’s records of his conviction and appeal at the time they moved him to another state. To leave charges pending for almost two years, without justification being proven by the state, is a violation of the principles laid down in Barker v. Wingo, supra, and our own Rules of Criminal Procedure.

The appellant makes a strong argument that our rules, as applied to him in the present case, were unconstitutional inasmuch as one prisoner was required to be released in a period of a little over six months. Alexander v. State, 268 Ark. 384, 598 S.W. 2d 395 (1980). On the other hand, we held that a trial within 18 months did not violate the speedy trial rules. Matthews v. State, supra. We have not heretofore been called upon to approve a period as long as the one in the present case, unless it was Divanovich v. State, supra. Divanovich is distinguishable from the present case in that appellant was in custody more than six months before an attorney was appointed for him; when he was moved out of state to federal prisons, without his consent and for no stated reason, his notes and records were willfully destroyed by the state; appellant made repeated requests for an omnibus hearing; and Divanovich’s attorney requested to withdraw in order to join the prosecuting attorney’s staff thereby causing a delay chargeable to Divanovich.

In view of the fact that we have found appellant was not granted a trial within the period allowed by the Rules of Criminal Procedure, it is not necessary for us to decide whether such rules are unconstitutional.

Writ granted.

Hickman and Hays, JJ., dissent.

Darrell Hickman, Justice,

dissenting. There is no substantial difference between this case and Divanovich v. State, 273 Ark. 117, 617 S.W. 2d 345 (1981). The defendants, Norton and Divanovich, were jointly charged and filed identical motions for continuances and recusal of the prosecuting attorney. Both filed numerous pleadings, making unreasonable demands on the state for the production of documents.

The trial judge continued the case because obviously neither party could be ready for trial. He failed to note on whose motions that the continuances were granted. The final motion to recuse the prosecuting attorney was granted and only because of that action the time exceeded three terms of court. The defendants asked for relief requiring a new prosecutor which required a further delay and they now complain that they were denied a speedy trial. The defendant’s own actions required the delay, a matter he should not be able to use against the state.

Two men were charged together, filed identical motions, and were treated exactly the same. One, Divanovich, will go to trial; Norton will go free on this charge. I respectfully dissent.

Hays, J., joins in this dissent.


author: Steele Hays, Justice.

text:
    Alfred COX et al v. James Ray STAYTON et ux et al
    81-73
    619 S.W. 2d 617
    Supreme Court of Arkansas
    Opinion delivered July 6, 1981
    [Rehearing denied September 14, 1981.]

      East Texas Legal Services, by: David J. Manley, for appellants.

      Joe C. Short and Dowd, Harrelson & Moore, by. C. Wayne Dowd, for appellees.
   Steele Hays, Justice.

This litigation involves adoption proceedings of three infant children, Patricia Ann, Peggy and Billy Don Juris. The appellants are the natural grandparents and bring this appeal challenging the adoption of the children by the appellees, who are their foster parents. We affirm the decrees of adoption.

In January 1979, Arkansas Social Services filed a petition in Hempstead County Juvenile Court alleging dependency-neglect of Patricia Ann Juris, age 3 years. Upon a hearing in the matter, the Juvenile Court ordered Patricia Ann, Billy Don, age 2, and Peggy, age 1, taken from the custody of their parents, George and Daisy Juris, and placed with their grandparents, Alfred and Emma Cox, the appellants. On April 27, 1979, the deputy prosecuting attorney filed a petition for immediate removal of the children from the Cox home as being necessary to protect the health and physical well being of the children from immediate harm. On this petition, the Juvenile Court entered an order taking immediate custody of the children from the Cox home and placing them with a local agency, Southwest Arkansas Counselling and Mental Health Center. However, the Coxes promptly sought and obtained a writ of habeas corpus and the children were returned to the Cox home. This development was followed by a hearing in Juvenile Court on the April 27th petition and custody of the children was again granted to the Center with instructions to place the children in foster homes. Unable to place all three in the same home, the two girls were placed with appellees, James Ray Stayton and his wife, Phyllis Dale Stayton, and Billy Don with Thomas William Massey and his wife, Anita Karen Massey, also appellees here.

In January 1980 the Center petitioned the Hempstead Probate Court to terminate the parent-child relationship of the children from George and Daisy Juris and to permit their adoption by the foster parents. Summons was issued and served upon George and Daisy Juris and counsel for the appellants-grandparents filed an answer on their behalf. However, Daisy Juris later filed an affidavit to the effect that she did not wish to be so represented and neither natural parent responded further to the petitions for adoption or appeared at the hearings below. The Staytons intervened seeking adoption of Patricia and Peggy and the Masseys intervened seeking to adopt Billy Don. The appellants, Alfred and Emma Cox, were also permitted to intervene in the proceedings alleging it would not be in the best interest of the children to grant the adoptions. They did not, however, seek to adopt the children themselves. On June 20, 1980, the Probate Court entered decrees of adoption in favor of the appellees on each of the petitions and appellants now bring this appeal.

First the appellants argue that the probate court erred in failing to appoint legal counsel for the indigent minor children, Peggy, Patricia Ann and Billy Don Juris, in violation of their Fourteenth Amendment rights to due process. We disagree. It should be noted here that the record reveals that the court did appoint counsel for the children. However, there is no indication that the attorney so named was ever given notice of the appointment and the record does not reveal any appearance on his part nor any participation in the proceedings. The appellants do not argue ineffectiveness of counsel on this appeal and we find it unnecessary to consider such an argument, had it been raised, since we conclude for the reasons stated below that appointment of counsel was not required.

In support of their contention that counsel must be appointed for indigent minors in adoption proceedings, appellates cite this court to State v. Wade, 527 P. 2d 753 (Or. App. 1974). However, the appellants have disregarded the later cases of Matter of D, 547 P. 2d 175 (Or. App. 1976), and Segrest v. Bradshaw, 551 P. 2d 456 (Or. App. 1976), which specifically overturned the Wade holding. In Segrest, the Oregon court held that independent counsel for the indigent minors in an adoption proceeding was required only when “in the judgment of the trial court, it is necessary in the particular case for the protection of the child’s interest.” Segrest, at 458. We believe this approach is sound. In Smith v. Organization of Foster Families, 431 U.S. 816 (1977), the Supreme Court, in dicta, has evidently approved a case by case determination of whether independent counsel is required. In Smith, the issue of a right to counsel for the indigent adoptees was not argued on appeal, counsel for the children having been appointed in the trial court below. However, in its discussion of the circumstances of the Smith case, the court noted in its footnote 44 that it approved of the appointment of independent counsel for the children where it appeared necessary to protect the interests of the children. In this case, we believe that given the ages of the children at the time of the hearing, the strong advocacy of the appellants, their natural grandparents, and of the appellees, their foster parents, we conclude that the welfare of the children was adequately protected by the parties to the adoption as to the central issue of the proceeding, i.e., the best interest of the children. Cotton v. Hamblin, 234 Ark. 109, 350 S.W. 2d 612 (1961), and Quarles v. French, 272 Ark. 51, 611 S.W. 2d 757 (1981).

The appellants also argue that the trial court erred in failing to appoint independent counsel for the indigent natural parents, Daisy and George Juris. We disregard this argument because the appellants have no standing to raise such an issue. Constitutional rights, including the guarantee of due process, are personal rights and may not be asserted by a third party. Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973), and Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 2d 1586 (1953). A very narrow exception exists where the issue presented to the court would not otherwise be susceptible of judicial review and it appears that the third party is sufficiently interested in the outcome that the rights of the other party would be vigorously asserted and, thus, adequately represented. Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972), and Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). We agree that the issue of the children’s possible right to counsel would not otherwise be susceptible to judicial review, and therefore we reach that issue as stated above. However, any right to counsel by the parents could be as well asserted by the parents themselves and would be easily reviewable had the parents joined in this appeal to claim such right, or had they remained as parties to the proceedings below. We therefore decline to recognize standing by these appellants to raise constitutional arguments on behalf of parents, who themselves have declined to do so.

Next, appellants argue that the court below erred in not joining the Division of Social Services, Arkansas Department of Human Services as a party to the adoption proceedings under Rule 19, A.R.C.P. Rule 19 provides:

A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or, (2) he claims an interest relating to the subject of the action and in his absence may (i) as a practical matter, impair or impede his ability to protect that interest, or, (ii) have any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reasons of his claimed interest.

We find nothing in Rule 19 which compels the joinder of the Division of Social Services in all adoption proceedings. Significantly, the relief sought in an adoption proceeding is the adoption itself; and by terms of our adoption statute, Ark. Stat. Ann. §§ 56-201, et seq., such relief may be granted whether Social Services is a party or not. Therefore, the department is not a necessary party under Rule 19(a) subsection (1), above. As to the application of subsection (2), we decline to hold that Social Services has such an interest in the proceeding that it must be joined under Rule 19. Ark. Stat. Ann. §§ 56-201, et seq., do not mandate that Social Services be joined in an adoption proceeding. In fact, even an investigation of the prospective adoptive home by Social Services is discretionary under § 56-212(c). Absent some statutory authority under §§ 56-201, et seq., we think that joinder of the Division of Social Services is not mandatory under Rule 19. Had the Legislature intended a different result, it could have inserted the necessary provision.

Fourth, the appellants argue that the court below erred in not ordering the proper agencies to attempt to rehabilitate the appellants’ home prior to awarding the adoption to the appellees. We can find no basis on which to uphold this argument. Our adoption code makes no provision whatsoever for rehabilitative services. The only rehabilitative provisions in our statutory scheme are contained in the Juvenile Code, Ark. Stat. Ann. §§ 45-401, et seq. Any claim of a right to receive rehabilitative services must be made in the juvenile court proceedings and not in the probate court on the petition for adoption. The proceedings in the juvenile court, not having been appealed, are now res judicata and the issues which were or could have been presented in that proceeding are now settled and cannot be raised in the present appeal.

Finally, the appellants argue that our adoption statutes are unconstitutional in that 1) they deprive the grandparents of their rights to their grandchildren without a showing of a compelling state interest, and 2) they deprive grandparents of their grandparental rights without due process as guaranteed by the Fourteenth Amendment. We treat these two arguments together and we find no merit in either contention. The appellants’ argument fails to identify a foundation or basis for the alleged rights which they claim have now been lost. Before we may apply the tests of constitutionality, there must be a showing of some right or interest which is protected by the Constitution. Here we find none. As we have pointed out previously, at common law grandparents have no presumptive right to custody or adoption of their grandchildren, nor even a right of visitation, absent an order of the chancery court. See, Veazey v. Stewart, 251 Ark. 334, 472 S.W. 2d 102 (1971), and Quarles v. French, supra. We are drawn to the conclusion that any rights existing in grandparents must be derived from statutes, as in Ark. Stat. Ann. § 57-135 (Supp. 1979), or conferred by a court of competent jurisdiction pursuant to statutes. Parks v. Crowder, 221 Ark. 340, 253 S.W. 2d 561 (1952), and Quarles, above.

What the appellants ask us to do through this line of argument is to recognize some form of inherent “grand-parental rights” beyond those previously bestowed. This we decline to do, not out of disregard for the genuine relational ties which naturally exist between grandparents and grandchildren, but rather for the reason that the sanctity of the relationship between the parent and the child must be the overriding concern. To create new, enforceable rights in grandparents could lead to results that would burden rather than enhance the welfare of children. Certainly prospective adoptive parents would be less inclined to assume that worthwhile role. Of paramount importance in this case, as in all adoption and custody matters, is what is in the best interest of the child. Quarles, above. In the present case, the appellants have been allowed to intervene in the adoption proceeding to present whatever evidence may have been relevant to the best interest of these children. Having had that opportunity, their rights have been preserved to them.

We find no error in the proceedings below and we affirm the decrees of the probate court.


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    Stuart HOLIFIELD v. ARKANSAS ALCOHOLIC BEVERAGE CONTROL BOARD and Mac CARDER, Administrator
    81-98
    619 S.W. 2d 621
    Supreme Court of Arkansas
    Opinion delivered July 6, 1981
    [Rehearing denied September 14, 1981.]

      Rhine, Rhine & Young, by: Robert E. Young, for appellant.

      Donald R. Bennett, for appellees.
   Steele Hays, Justice.

Stuart Holifield appeals a judgment of the Greene Circuit Court affirming a revocation of his beer license by the Alcoholic Beverage Control Board. The circuit court found the Board acted within its powers and that its findings were supported by substantial evidence. We affirm.

Appellant holds Permit No. 2265 to sell beer at retail to patrons of the P & L Club at Paragould. Agents of the Board observed violations at the club on several occasions during December 1978 and notice was given appellant outlining five specific charges. After a hearing the Director entered an order suspending appellant’s permit for 30 days with a year’s probation. Appellant appealed to the full Board and after a second hearing the Board issued an order revoking appellant’s permit. The order of the Board was then appealed to the Greene Circuit Court, which affirmed the Board.

Before the Board, police officers of the city of Paragould and ABC agents testified to a number of violations of law and regulations: staying open after lawful hours; selling beer after hours; drinking by appellant and employees while on duty and permitting hard liquor on the premises. Much was made of the events of December 31, a Sunday. Officers and agents raided the club at about 10:30 at night to find 150 people in the club with mixed drinks, beer and bottles of whiskey, vodka and wine. Beer cans and 21 bottles of whiskey were confiscated. There was testimony that one customer was drunk and belligerent toward the officers.

Appellant’s testimony consisted largely of the denial of the charges and explaining the apparent violations. He said sometimes customers would order a six-pack to go before closing time but would not pick it up until they left the club, thus accounting for the delivery of beer after hours. Appellant denied that liquor was consumed with his knowledge. He admitted drinking six or seven beers at times but denied that he was “on-duty.” Several witnesses said they had never seen violations, that the club was well managed. Appellant’s explanation of the December 31 event was that this was a “private” New Year’s Eve party; that his attorney had written to the Board the preceding October to ask whether a business with an on-premises beer permit could remain open after 1 a.m. on weekdays and 12 o’clock on Sundays to sell food and carbonated beverages, provided no beer or alcoholic beverages were sold or consumed during those times and he assumed from the response that it was permissible for him to hold the function. He admitted that he had sold tickets at $6.00 a person for the event. He explained the presence of alcoholic beverages by the fact that it was dark and that among 150 people they had found “only 20 or so bottles,” which he regarded as negligible. Appellant said that he had discussed the function during the afternoon with a local ABC agent, Mr. J. C. Dollins, and that he was warned against the event.

For reversal appellant insists that under Ark. Stat. Ann. § 48-1312 (Repl. 1977) he is entitled to notice that his permit was subject to revocation, rather than mere suspension. He cites no authority for the point and we find nothing to support this assertion. The statute cited provides only that proceedings for either suspension or revocation of a license shall be before the Director, in accordance with rules not inconsistent with law, without strict rules of evidence, and that no license shall be revoked except after a hearing upon reasonable notice to the licensee, with the opportunity to appear and defend. Nowhere is it implied that the notice must state that it is within the Board’s power to revoke. We regard it as a matter of common knowledge that beer and liquor permits are subject to revocation for violations and appellant makes no claim that he was unaware of that fact or that he was prejudiced by the omission.

Next, it is argued that the decision was entered at an executive session of the Board in violation of the Freedom of Information Act. It is said that a deception was practiced upon appellant in that he was told that the meeting was over, whereas the Board knew it would vote as soon as he left. The record does not sustain that contention except for an inference that the hearing on appellant’s case was concluded. There was no suggestion that the entire meeting had ended or that appellant was not free to stay if he wished. The chairman said, “the Board will take this under consideration and we will make a decision and you will be notified of our findings.” Just when the vote occurred is not shown, nor is it shown that appellant made any request to remain during deliberations or to be present while his case was considered. He may have had that right, but we cannot agree that any deception is shown or that he was not free to remain. It is basic to such proceedings that alleged errors which can be remedied at the time must be raised as they occur in order to constitute reversible error. Appellant cannot acquiesce in silence and raise the issue on appeal. Federal Express Corporation and North American Car Corp. v. Skelton, 265 Ark. 187, 578 S.W. 2d 1 (1979).

Appellant’s third point for reversal is that there is no evidence that he consumed alcohol while on duty or that he knew that liquor was on the premises. He takes exception to the conclusion that an owner is “on-duty” at all times he is present on the premises. We can see no purpose in attempting to define when an owner is “on-duty” or “off-duty” while in his own establishment, as there was testimony that appellant and a waitress were drinking behind the bar and that appellant was drunk at times, which the regulation is plainly aimed at. We find substantial evidence to support the finding. On the same point, appellant insists that evidence of “guilty knowledge” is lacking — that the State must show he knew of the illegal consumption of whiskey. He argues the club was dark and crowded and that only 20 bottles were found among 150 people. This argument has no substance. The interior lighting is within appellant’s control and if it is too dark for him to supervise his own establishment, the remedy is obvious. We venture to say that if the appellant had made any effort to determine whether hard liquor was on the premises, it would have been a simple matter for him to do so. There was testimony that when whiskey was seen by the appellant or a waitress, the patrons were told to put their bottles on the floor, which hardly cures the violation. The evidence, given its fullest import, makes it plain that the practice was tolerated, if not encouraged.

Appellant’s fourth point is that the revocation order does not contain findings of fact and conclusions of law as required by Ark. Stat. Ann. § 5-710. The claim is without merit, as the orders of both the Director and the Board are fully and carefully drawn, in contrast to the orders found to be deficient in First State Building and Loan Association v. Arkansas Savings and Loan Board, 257 Ark. 599, 518 S.W. 2d 507 (1975), and Gordon v. Cummings, 262 Ark. 737, 561 S.W. 2d 285 (1978). In the latter, the Board entered no order except to “grant” the application; in the former no underlying facts were stated. Appellant’s primary objection here seems to be that the decision fails to come to grips with his theory that “guilty knowledge” is lacking and the issue of when an owner is “off-duty.” The Board’s failure to treat those arguments in its conclusions of law is riot fatal; it is enough that the order contains thorough findings of fact and citations to the statutes and regulations violated. We find sufficient compliance with § 5-710 to meet the purpose of the statute, i.e., to facilitate judicial review. See Professor Davis, Administrative Law Treatise, 1968, Section 16.05.

Appellant next contends that Regulation No. 1.58 of the Alcoholic Beverage Control Board was not followed in connection with the order of the Director. However, the regulation is not abstracted, merely referred to, and we are unable to consider it on the basis of what we find in the brief. Anderson v. Erberich, 195 Ark. 321, 112 S.W. 2d 634 (1938).

Next, appellant argues that the permit was revoked in “bad faith,” amounting to a denial of equal protection and due process, that revocation under these circumstances is “selective prosecution” and, hence, arbitrary and capricious. But these are conclusions — they lack any support in fact. There is no evidence of “selective prosecution,” whatever its effect might be. Appellant’s right to due process has been observed in all respects and the equal protection clause does not give rise to a defense that because someone else has violated the law appellant can do likewise. We agree that revocation is severe, but it is not for us to make that determination in the place of the Alcoholic Beverage Control Board, to whom supervision of the sale and consumption of alcohol has been entrusted by the legislature. There is substantial evidence that appellant knowingly committed violations of the law, in some respects flagrantly, and the penalty imposed by the Board is within its statutory power. So long as the decision is not arbitrary or capricious, and we conclude that it is not, it is not for us to displace the discretion of the Board with our own. Gordon v. Cummings, supra.

We are asked to assume from a news article of actions by the Board in other cases, quoted in the brief, that other violations are not treated as severely. But these are merely synopses and tell almost nothing of the facts. Besides, the article is not abstracted, nor can we find it in the record, and we need not consider it. Anderson v. Erberich, supra. It should be noted that the charges against appellant are not in the category of unwitting infractions, but reflect an arrogant disregard of the law. There is an element of aggravation in deliberately opening on a Sunday with beer and whiskey present in large quantities in the face of a direct warning. He chose to jeopardize the license granted to him by the Board and he cannot complain that the penalty is more severe than he would like it to be — that decision rests with the Board.

Finally, it is argued that there is reversible error in the fact that the Director suspended appellant’s permit for 30 days with probation for a year while the Board revoked the permit entirely. Appellant cites Marshall v. State, 265 Ark. 302, 578 S.W. 2d 32 (1979), wherein we held in a criminal case that when an accused is convicted again after successfully appealing his first conviction, the sentence cannot be enhanced by the trial judge except on affirmative objective matters appearing in the record. We have serious doubts that the rationale of the Marshall case is appropriate to an appeal from an administrative tribunal, but that many remain unanswered, as the circuit judge found the evidence to have been more damaging at the Board hearing and we agree. From the testimony of the agents and city police officers appellant’s drinking at the club was more than perfunctory violation, but was a serious problem in that he was often drunk, at which times he tended to be belligerent. Agent Dollins said that he had had numerous conversations with appellant regarding his drinking, that he had threatened the life of one individual and that his greatest concern was that appellant would “get too much and hurt somebody bad.” Obviously the Board could not have been unaffected by such testimony in view of its obligation to the public. Besides, express authority is given to the Board on its own motion to review any action of the Director, including suspension or revocation of licenses. Ark. Stat. Ann. § 48-1314.1 (Repl. 1977). Thus, whether appellant had appealed or not, the Board had the power to review the decision of the Director and make its own determination as to the appropriate penalty.

We are urged to modify the penalty, as was done in Baxter v. Arkansas State Board of Dental Examiners, 269 Ark. 67, 598 S.W. 2d 412 (1980), where this court reduced the permanent revocation of the license of two dentists to a suspension for 18 months. There we noted that our statutes on dentistry (Ark. Stat. Ann. § 72-560, et seq. [Repl. 1979]), provide that “no license once revoked may ever be renewed” and arrived, not without difficulty, at the conclusion that total revocation was excessively harsh. The difference is that the right to practice one’s profession or calling is higher than the right to hold a permit to sell intoxicants, which can be withdrawn more readily. What appellant enjoyed was in no sense an individual right, but a special privilege which carries the obligation of strict observance of all rules, regulations and laws affecting the sale and consumption of alcoholic beverages, which are said to be “absolutely binding” on licensees. Ark. Stat. Ann. § 48-1311 (Repl. 1977). When that privilege is abused, as here, it is within the power of the State to revoke. Blum v. Ford, 194 Ark. 393, 107 S.W. 2d 340 (1937); Gordon v. Cummings, supra.

The judgment is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I cannot agree with the majority in holding that an appeal to the ABC Board from a 30-day suspension may give rise to a permanent revocation of a license. Appellant was never informed that his license was in jeopardy for more than the 30-day suspension. After the hearing was over and the parties were gone the Board decided in a secret session that they would go whole hog and deprive the appellant of his license entirely. Not only was there lack of timely notice there was complete lack of notice in all respects regarding the permanent revocation of appellant’s license. I have never seen due process so completely ignored. For good measure the Board violated the Freedom of Information Act and has never redone the matter in open session. As punishment for this violation of the law and failure to give proper notice, also in violation of the law, the majority rewards the Board by upholding this unreasonable and arbitrary action.

Ark. Stat. Ann. § 48-1312 (Repl. 1977) states in part:

... No such license shall be revoked except after a hearing by the Director with reasonable notice to the licensee and an opportunity to appear and defend. ...

The only places which make it more obvious that the appellant was entitled to notice are the Constitutions of the State and Nation. Article 2 § 21 of the Constitution of the State of Arkansas states:

No person shall be taken or imprisoned, or disseized of his estate, freehold, liberties or privileges; or outlawed, or in any manner destroyed or deprived of his life, liberty or property, except by the judgment of his peers or the law of the land; nor shall any person, under any circumstances, be exiled from the State.

If that’s not plain enough, then let’s take a peek at the Fourteenth Amendment to the Constitution of the United States, section 1, which reads in part:

... nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Another bit of interesting reading is found in Goss v. Lopez, 419 U.S. 565 (1975), which states:

... there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.

If one wants to get right down to the law in Arkansas, he might look at the case of Franklin v. State, 267 Ark. 311, 590 S.W. 2d 28 (1979), wherein we stated:

Fundamental requirements of due process require the opportunity to be heard at a meaningful time and a meaningful place before a person may be deprived of life, liberty or property.

I would reverse that portions of the lower court judgment which upholds the permanent revocation of appellant’s license.


author: Per Curiam.

text:
    Floyd WILLIAMS v. STATE of Arkansas
    CR 76-93
    619 S.W. 2d 628
    July 6, 1981

      Floyd D. Williams, pro se.

      Steve Clark, Atty. Gen., for respondent.
   Per Curiam.

Petitioner was convicted by a jury of capital felony murder and sentenced to life imprisonment without parole. We affirmed, Williams v. State, 260 Ark. 457, 541 S.W. 2d 300 (1976). In 1976, petitioner filed a petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37 which was denied. He was allowed to file a second Rule 37 petition in 1979 because his original petition presented only conclusory allegations. This petition was also denied.

Petitioner now seeks a transcript at public expense. The motion for transcript is denied. Since a motion for transcript is a petition for postconviction relief, petitioner’s motion must be considered as his third attempt to obtain relief pursuant to Rule 37. Criminal Procedure Rule 37.2 (b) provides: “All grounds for relief available to a prisoner under this rule must be raised in his original or amended petition. Any ground not so raised or any ground finally adjudicated or intelligently and understanding^ waived in the proceedings which resulted in the conviction or sentence or in any other proceedings that the prisoner may have taken to secure relief from his conviction or sentence may not be the basis for a subsequent petition.”

In the past, in cases where allegations of the original petition were conclusory, subsequent Rule 37 petitions have been allowed and decided on their merits. When an original petition presented grounds for relief with supporting facts, however, any subsequent petition was dismissed in accordance with Criminal Procedure Rule 37.2 (b). Since this practice may have resulted in inconsistency in the treatment of subsequent petitions, this Court will no longer consider any subsequent petitions unless the original petition was specifically denied without prejudice. (See per curiam this date.)

In the case at bar, petitioner has had ample opportunity to pursue his postconviction remedies under Rule 37 and this Court will not consider a third petition.

Petition dismissed.

Adkisson, C.J., not participating.


author: Richard B. Adkisson, Chief Justice.

text:
    Earnest D. BRADFORD v. Thomas Michael VERKLER
    81-51
    619 S.W. 2d 636
    Supreme Court of Arkansas
    Opinion delivered July 13, 1981
    [Rehearing denied September 14, 1981.]

      Dodds, Kidd, Ryan & Moore, by: Donald S. Ryan, for appellant.

      Hanshaw & Feland, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellee, Cabot police office Thomas Verkler, sued appellant for a leg injury he received when kicked by the appellant; the complaint alleged both negligence and assault and battery as the cause of the injury. Appellant appeals an $8,250.00 jury verdict alleging that the trial court erred in failing to direct a verdict in his favor on the issue of negligence, there being no substantial evidence as a matter of law for the jury’s consideration on this theory.

In determining on appeal the correctness of the trial court’s action concerning a motion for a directed verdict by either party, the test is to take that view of the evidence that is most favorable to the party against whom the verdict is sought and to give it its highest probative value, taking into account all reasonable inferences deducible from it, and to grant the motion only if the evidence viewed in that light would be so insubstantial as to require that a jury verdict for the party be set aside. Miller v. Tipson, 272 Ark. 1 (1981); O’Brian v. Primm, 243 Ark. 186, 419 S.W. 2d 323 (1967); St. Louis Southwestern Railway Co. v. Farrell, Adm’x., 242 Ark. 757, 416 S. W. 2d 334 (1967). Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980).

Although the defendant-appellant, Bradford, was the moving party for a directed verdict on the issue of negligence, we find that he alone supplied the substantial evidence necessary to sustain the trial court’s denial of his motion. He testified that, while officers Younts and Verkler attempted to move him to another cell against his wishes, Younts struck him on the arms and head with a slapper; that Verkler tried to push him from the rear while Younts was hitting him and that he (appellant) “might have thrown my hands up and run backwards, but I never made an attempt to hit or kick either one of them”; that he knew Verkler and that Verkler was trying to protect him; that “I pushed back and we [he and Verkler] ran up against the cot”; that the only thing he could figure was that Verkler “got hurt on the cot back behind when I went up against the front of the cell. . . and pushed backward.” We find this to be substantial evidence of negligent behavior on appellant Bradford’s part and, therefore, affirm the trial court’s denial of appellant’s motion for a directed verdict.

Affirmed.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    MOODY EQUIPMENT & SUPPLY COMPANY v. UNION NATIONAL BANK, Administrator et al
    81-10
    619 S.W. 2d 637
    Supreme Court of Arkansas
    Opinion delivered July 13, 1981

      Thurman & Capps, Ltd., by: Paul D. Capps, for appellant.

      McMath & Leatherman, P.A., by: Sandy S. McMath, for appellees.
   George Rose Smith, Justice.

In this action for the wrongful death of William Dale Pryor, brought by the appellee bank as administrator, the jury’s verdict was for the defendant, Moody Equipment & Supply Company. The trial judge, however, granted the plaintiff’s motion for a new trial for misconduct of a witness for the defendant. ARCP, Rule 59(a). For reversal Moody argues that it was entitled to a directed verdict and that the trial court abused its discretion in granting a new trial. The case falls within our jurisdiction under Rule 29 (1) (o).

The complaint, among other allegations, asserted that Moody was strictly liable for having sold a used crane that was so defective as to make it unreasonably dangerous. Ark. Stat. Ann. § 85-2-318.2 (Supp. 1979). At the time of the accident the decedent, an employee of the general contractor on a building construction job, was loading plywood onto a harness so that it could be lifted by the crane. The crane’s boom was extended over a high voltage line. The plaintiffs proof indicated that the piston cups in the crane’s hydraulic system were so worn by long use that the fluid bled out. The resulting loss of compression caused the crane’s boom to inch downward about four feet and touch the power line, electrocuting Pryor.

Moody does not seriously deny that it was at fault in selling the crane without having inspected the piston cups, but it argues that its negligence was superseded by various intervening causes, such as the contractor’s failure to have the power line de-energized, the omission of several safety measures required by Ark. Stat. Ann. §§ 81-1405 and -1406 (Repl. 1976), and the crane operator’s failure to discontinue its use after the boom had unaccountably descended earlier on the same day. The jury, however, could have found from the evidence that the possibility of such occurrences was reasonably foreseeable in the ordinary course of the crane’s intended use in construction work, so that the later acts of negligence by third persons became merely concurrent, not superseding, causes of Pryor’s death. See Franco v. Bunyard, 261 Ark. 144, 547 S.W. 2d 91 (1977), cert. den. 434 U.S. 835 (1977); Hartsock v. Forsgren, 236 Ark. 167, 365 S.W. 2d 117 (1963). Hence Moody was not entitled to a directed verdict.

Second, near the end of the trial the plaintiff moved for a mistrial on the ground that two of Moody’s witnesses, Jordan and Andrews, had been seen in conversation with jurors. The court at once conducted a hearing in chambers, but nothing of a seriously prejudicial nature developed. In particular, Andrews testified only that he had talked with one juror about having been in the military service and had recommended a Little Rock hotel to another juror. The court did not make a ruling, because at the close of the in-chambers hearing the plaintiff withdrew its motion for a mistrial.

After the verdict, however, the plaintiff raised the point again in a motion for a new trial. This time the proof developed misconduct not touched upon at the in-chambers hearing and not then brought to the attention of the plaintiff’s attorney. A witness testified that during a recess a female juror had mentioned Andrews’s blue eyes to him in a “downright flirty” manner. Another witness testified that he heard Andrews ask a juror (presumably the same one) where she lived and if it would be all right if “they” came to see her sometimes; she said she’d be glad if they did. Andrews admitted that the juror told him he had pretty blue eyes, but he denied the rest. The trial judge evidently accepted the other testimony, which would indicate that Andrews had not been completely candid at the in-chambers hearing during the trial.

To reverse the judgment we would have to say that the trial judge abused his discretion in granting the motion for a new trial. It is fundamental, however, that the latitude of the trial judge’s discretion increases proportionately as the situation presents to him a question that cannot equally well be presented to us by the printed record. For instance, we seldom reverse the trial judge’s decision to grant a new trial on the grounds that the jury’s verdict was in his opinion contrary to the preponderance of the testimony. See Smith v. Villarreal, 253 Ark. 482, 486 S.W. 2d 671 (1972). There he has the unique advantage of having heard the testimony at firsthand. Again, we have deferred scores of times to the trial judge’s ruling upon a motion for a continuance. There he knows, for instance, as we cannot know, the propensity of a certain lawyer to seek a continuance in every case, or a docket condition that justifies a delay only for the strongest of reasons, or other matters not to be found in the printed record.

This case properly falls in the same category with respect to the trial judge’s discretion. This trial judge had heard all the testimony and was in a position far superior to ours to know whether the proof was so nearly balanced that the misconduct of a witness and juror might have tipped the scales one way or the other. The trial judge had the advantage of having observed the witness Andrews at the in-chambers hearing, when the witness was understandably apologetic about having spoken to jurors at all. The trial judge was of course familiar with the courthouse in which the case was tried and knew to what extent its adequacy or deficiencies might or might not have brought witnesses and jurors into unavoidable contact with one another during recesses. In a situation such as the one presented by this case, it is not our place to set aside the trial judge’s decision unless we can say with confidence that his discretion was markedly abused. Here we cannot make that statement.

Affirmed.

Adkisson, C.J., and Purtle, J., dissent.

John I. Purtle, Justice,

dissenting. As far as I am able to ascertain this is the first time in history that a jury verdict has been set aside because one of the jurors stated one of the witnesses had “pretty blue eyes.” In fact, during my trial days I heard similar remarks on a number of occasions and the thought never occurred to me, nor apparently to the court, nor even to the opposing attorney, that there was anything wrong with this. Even a juror must continue to live a fairly normal life during the time he is serving in that capacity. In fact, one of the instructions admonishes the jury not to disregard their common sense in matters of daily life. The jury is admonished not to talk about the case. They are not admonished not to talk to anyone.

The majority correctly determined that the evidence was sufficient to support the verdict rendered by the jury in this case. They could not reverse the case on the facts; therefore, they trudged along with the trial court who set aside a verdict because of an exchange of pleasantries between one of the appellee’s witnesses and a juror. I cannot find an Arkansas case where such action was taken by a trial court. However, the appellant has cited three cases where improper conduct of a juror was alleged and the trial court refhsed to set aside the verdict. In each case we affirmed the trial court.

In the case of Williams v. Williams, 112 Ark. 507, 166 S.W. 552 (1914), a new trial was requested because the counsel for the defendant signed an affidavit in which he alleged one of the jurors was outside the jury room talking to a person other than the officer in charge of the jury. He further alleged the jury was deliberating the case at that time. The court stated:

... If the jury was permitted to separate by the court, the jurors would necessarily speak to persons with whom they came in contact. If they violated the admonition of the court not to speak about the case, the burden of showing that fact would be upon the defendant, and he has not attempted to show that the conversation that the juror had in any wise pertained to the case which the jury had under consideration.

In the case of Midland Valley Railway Co. v. Barkley, 172 Ark. 898, 291 S.W. 431 (1927), a new trial was sought on the grounds that a juror had been guilty of misconduct. The conduct consisted of the juror riding back and forth from his home to the courthouse in the plaintiff’s automobile and thereafter paying for the plaintiff’s dinner in return for the courtesy. The trial court refused to set aside the verdict and this court affirmed. There is no evidence in the present case that anyone was given a ride or furnished a dinner, or a cigar, or a soft drink, or promised anything whatsoever. Certainly Barkley would be more compelling for setting aside the trial than the present case.

A third case which deserves mention is that of St. Louis Southwestern Railway Co. v. Ellenwood, 123 Ark. 428, 185 S.W. 768 (1916). This case states that the conduct of jurors being treated to cigars and soft drinks by plaintiffs counsel during the trial did not warrant a setting aside of the verdict. Again, the trial court refused to set aside the verdict and this court affirmed.

In the present case appellee’s attorney reported to the court that Jordan and Andrews were talking to jurors during a recess. These two witnesses, one of whom was appellant’s witness, informed the court that the appellee’s expert witness, Don Eppinette, was with them during the time the parties were talking to the juror. Appellant’s counsel at that time suggested that the juror be called in and questioned about the matter. Appellee’s attorney would not agree to this suggestion and in fact withdrew his previous motion for a mistrial. It is obvious that the appellee felt it was best to take his chance on completing the trial and in the event of unfavorable results to try to get a second shot at it. This is exactly what the majority has agreed to do. There is not one single word by any witness for any party to the effect that the case being tried was even remotely referred to in the alleged misconduct. One would have to speculate in order to say that a juror violated the admonition given to him by the court. That admonition is not to speak to anyone about the case. This juror did not speak to anyone about the case; certainly the witness’s blue eyes were not the subject of this lawsuit. Neither the trial court nor this court has any authority whatsoever from any source to attempt to completely control the conduct of people who are participating in a trial. All that is required or needed is that the parties obey the instructions of the court. As far as this record shows, that admonition was strictly followed by all members of the jury. The conversation by appellant’s attorney with a juror after the trial was completely in order.

Until now I had thought that there was a firmly established principle of law that a party will be deemed to have waived, or will be estopped to rely upon an error or grounds for mistrial, which came to his attention during the trial, if he failed to make the proper objection.

We dealt with this subject matter in a case which is somewhat analogous to the present one in Arkansas High way Commission v. Kennedy, 233 Ark. 844, 349 S.W. 2d 133 (1961). There we stated:

Under our statutes, as well as the practice in this State, it is too late after the rendition of a verdict, to raise the ineligibility of a juror to serve, unless it can be shown by the complaining party that diligence was used to ascertain his disqualification and to prevent his selection as a juror. See: Missouri Pacific Railroad v. Bushey, 180 Ark. 19, 20 S.W. 2d 614.

In the present case Andrews was called to the trial by the appellee. Also, his star witness, Eppinette, was present during the conversation. Certainly the appellant had ample opportunity to question these witnesses and upon his failure to do so he waived the matter of misconduct of a juror. I would reverse.

Adkisson, C.J., joins in this dissent.


author: George Rose Smith, Justice.

text:
    Bill SANSON and Vick BROWN v. Kenneth PULLUM and Patricia PULLUM
    81-77
    619 S.W. 2d 641
    Supreme Court of Arkansas
    Opinion delivered July 13, 1981
    [Rehearing denied September 14, 1981.]

      Guy H. Jones, Phil Stratton, Guy Jones, Jr. and Casey

      Jones, by: Guy H. Jones, for appellants.

      Matthews & Sanders, by: Roy Gene Sanders, and Alex Street, far appellee.
   George Rose Smith, Justice.

This action for personal injuries and property damages comes to this court under Rule 29 (1) (o). On September 30, 1975, the plaintiff Patricia Pullum was driving her husband’s car on a highway in Faulkner county. The defendant Vick Brown, driving a farm tractor owned by his alleged employer, the defendant Bill Sanson, entered the highway from Mrs. Pullum’s left and crossed her path, pulling a load of silage behind the tractor. Mrs. Pullum testified that she did not have time to stop and struck the tractor just before it completed its crossing, with the farm trailer still blocking the highway. This appeal is from a verdict and judgment awarding Mrs. Pullum $29,000 for her injuries and her husband $2,000 for the damage to the car. Four points for reversal are argued.

First, at the close of the plantiffs’ proof Sanson moved for a directed verdict on the ground that the proof did not show Brown to have been acting as Sanson’s employee on the day of the accident. The motion was overruled. Sanson then introduced testimony and did not renew his motion at the end of the trial. Any error was therefore waived. Granite Mountain Rest Home v. Schwartz, 236 Ark. 46, 364 S.W. 2d 306 (1963).

Sanson is mistaken in arguing that our settled rule on this point was changed by ARCP, Rule 50 (a). That Rule states that a party may move for a directed verdict at the close of his opponent’s evidence without reserving the right to offer evidence if the motion is not granted. It also states that a party may move for a directed verdict at the close of all the evidence. Neither statement changes pre-existing Arkansas practice. The reason underlying the Granite Mountain decision exists without regard to the new Rule. If a defendant could introduce evidence without waiving his first motion for a directed verdict, he could supply the very defect complained of and still obtain a new trial after having speculated upon the possibility of a favorable verdict upon all the proof. In fact, that is what would happen here, for Sanson later testified that he had given Brown a check for wages on the very day of the accident. If counsel thought there was still no proof of Brown’s status as an employee when the accident occurred, the motion for a directed verdict could easily have been renewed. That was not done; so the point was waived.

Second, it is argued that the plaintiffs should not have been permitted to introduce medical bills and records “in a bundle” without having laid a proper foundation. Two instances are mentioned. Mrs. Pullum first identified a package containing her medical bills, copies of which defense counsel had had ever since her discovery deposition was taken. Counsel’s objection, that she should first be required to show that all the bills after 1976 were for treatment attributable to the 1975 accident, was properly overruled. Mrs. Pullum had already described her injuries, had said that she had back pain and a fracture in her neck, and had explained that she had had to return to the hospital in 1978 and again in 1979- If defense counsel wanted to further develop the connection between the accident and the medical bills, that was a proper matter for cross examination. In the second instance complained of, medical and hospital records were apparently introduced as exhibits to Dr. Banister’s deposition. There was only a general objection, and inasmuch as the exhibits have not been abstracted we cannot say that anything in them was either inadmissible or prejudicial. Counsel rely on Henry v. Landreth, 254 Ark. 483, 494 S.W. 2d 114 (1973), but the court’s statement that the plaintiff had the burden of showing that each medical bill was related to the accident does not demonstrate any error on the part of the trial court in the case at bar.

Third, Jerry Gross, the state trooper who investigated the accident, testified on cross examination that he had been told in his training that the reaction time between a driver’s seeing danger and hitting the brakes was four and a half seconds. The blunder was so obvious that counsel argued with the witness at length, insisting that the time was about a second. The witness, however, clung to his position. After the trial the defendants filed a motion for a new trial on the ground of newly discovered evidence, attaching the trooper’s affidavit that he should have stated the reaction time as three fourths of a second and also attaching two jurors’ identical affidavits saying they had based their finding that Mrs. Pullum was not negligent upon the trooper’s statement about the reaction time.

The trial judge properly overruled the motion for a new trial. No diligence on the part of counsel was shown, since he had interviewed the officer only briefly before the trial and evidently had not discussed reaction time with him. Moreover, even an admission of perjury does not necessarily call for a new trial when there is other evidence to support the verdict. Little v. State, 161 Ark. 245, 255 S.W. 892 (1923). Here Mrs. Pullum testified she was driving at about 40 miles an hour when she was 400 feet from the point of the accident. When she saw the tractor coming toward the highway she touched her brakes, but the tractor driver slowed down and came to a complete stop. “I proceeded ahead. Uh, when I was so close to him that I couldn’t avoid hitting him, he pulled across the road in front of me.” Brown testified that he never saw the car before the impact. Thus the jury did not have to rely upon the trooper’s testimony to find that Brown’s negligence cause the accident.

The jurors’ affidavits were clearly inadmissible. Uniform Evidence Rule 606 (b) states plainly that a juror may not testify as to the effect of anything upon his mind as influencing him to assent to the verdict, nor may his affidavit be received concerning a matter about which he is precluded from testifying. We take this opportunity to state unequivocally, for the guidance of the bar, that in our opinion it is improper for a lawyer to interview jurors after a trial in an effort to obtain such inadmissible affidavits to impeach their own verdict.

Fourth, it is argued that the court unduly limited counsel’s cross examination of Mrs. Pullum about her medical treatment. The argument is fundamentally defective in that we are never told in the brief just what admissible testimony counsel might have brought out on cross examination. Moreover, the argument is based upon an extended in-chambers colloquy that is not abstracted. We are not in a position to say that the right of cross examination was unduly restricted.

Affirmed.

Purtle, J., not participating.