author: Frank Holt, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Thomas v. State.
    5109
    379 S. W. 2d 26
    Opinion delivered May 25, 1964.

      W. B. Hoioard and Jack Begars, for appellant.

      Bruce Bennett, Attorney General, by Richard B. Adkisson, Asst. Atty. General, for appellee.
   Frank Holt, Associate Justice.

The appellant was charged by information with the crime of first degree murder. A jury found him guilty of the crime of involuntary manslaughter and assessed his punishment at three years in the penitentiary. On appeal from a judgment on this verdict appellant relies for reversal solely upon the point that “the court erred in denying appellant’s motion to quash the special jury panel selected by the sheriff after the quashing of the regular panel.” "We must agree with the appellant.

Prior to trial the appellant, a Negro, filed a motion to quash the regular petit jury panel alleging that members of his race had been willfully excluded from this jury panel by the jury commissioners on account of their race and color and such a systematic exclusion had existed locally for more than twenty-five years. Therefore, such discrimination denied to him equal protection of the law as guaranteed by the Fourteenth Amendment of the United States Constitution.

Upon proof being presented in behalf of appellant’s motion, the court quashed and discharged the questioned jury panel. It appears that in the Jonesboro District of Craighead County Negroes comprised 4.2% of the population and 2.4% of the qualified electors of that District and that for more than twenty-five years no Negro had served on a criminal court jury panel except two Negroes during a term of court in 1953. Upon quashing this original jury panel the court appointed the sheriff of the county to summons a new or special panel of petit jurors to serve for the balance of the term. Ark. Stat. Ann. § 43-1912.1 (Supp. 1963). The court directed the sheriff to select whomsever he desired in keeping with the requisite qualifications for jury service and, further, that members of the quashed panel were not ineligible to serve on a new panel. There were thirty-two of the thirty-eight quashed panel members in attendance at court during this procedure. The sheriff immediately re-summoned these thirty-two members of the quashed panel as members of the special panel without considering any other persons. He then proceeded to select six Negroes, admittedly because of their race, and placed their names at the top of the list of the special jurors again making a complete list of thirty-eight jurors.

The following day the appellant moved to quash this special jury panel, again alleging that the appellant’s rights, both statutory and constitutional, were violated in the manner of its selection. The court overruled appellant’s motion to quash the special panel.

In Bone v. State, 198 Ark. 519, 129 S. W. 2d 240, the trial court denied a motion by appellant, a Negro, to quash the venire of petit jurors based upon the systematic exclusion of Negroes on the jury panel. The trial court, however, on the day of the trial placed three Negroes on the regular jury panel in an effort to meet the objections of the defendant. Upon appeal, in discussing this point, we said:

“* * * If the objection made was tenable, and, no doubt, it was, it must have operated not to remove from the jury panel three members in whose places there might have been substituted qualified jurors of the Negro race, but this objection was to the entire panel,
* * *. The removal of three from an improper venire upon which twenty-one improperly were left, certainly did not cure the error or meet the requirements of the substantive law of the land.” [Emphasis added]

In Maxwell v. State, 217 Ark. 691, 232 S. W. 2d 982, the original jury panel contained no Negroes. On a motion by appellant, a Negro, to quash the panel because of systematic exclusion of members of his race from the panel the court proceeded to discharge all but thirteen members of this panel. A special list was summoned. The new panel, totaling sixty-nine members, included eight Negroes and the thirteen retained from the original panel. The state contended that the commingling of the original thirteen jurors with the new panel containing the eight Negroes afforded the defendant due process of law, namely, the right to select a jury of twelve from a panel partially composed of members of his own race. In holding the action of the trial court was reversible error and required a new trial, we said:

“* * * The answer is that we are dealing primarily with the Constitution as distinguished from a particular defendant. * * * But there is no doubt that the local system of jury selection resulted in systematic exclusion of Negroes in violation of the Fourteenth Amendment, and that for the first time in many years colored electors were summoned when the special list was given the Sheriff.”

In that case we held that the retention and commingling of thirteen of the original jurors on a new list totaling sixty-nine jurors denied the defendant his fundamental rights.

In the case at bar the appellee, however, contends that under the authority of Ark. Stat. Ann. § 43-1912.2 (Supp. 1963) the thirty-two members of the original panel quashed by the court could now be carried over and were eligible to serve on the new jury panel. This section reads:

“The quashing of a jury panel by order of the court shall not by reason thereof render the individual members of such panel ineligible to serve as jurors if chosen subsequently according to law at same at a succeeding term of court.” [Emphasis added]

Under the facts in this ease we cannot agree with appellee. The sheriff testified with commendable candor that he did not consider the qualifications of any other persons when he resummoned the thirty-two jurors in question and, further, that he was putting his “stamp of approval” on the selection previously made by the jury eommisisoners. The trial court in quashing the original panel in effect found that the panel had been selected under a pattern of systematic exclusion of Negroes that had existed for some twenty-five years. The above quoted statute does not authorize the blanketing en masse practically the entire membership of an admittedly defective panel into a new or special panel. It is well settled that members of a jury must be selected as individuals on the basis of individual qualifications and not included or excluded as members of a race. Dorsey v. State, 219 Ark. 101, 240 S. W. 2d 30, certiorari denied, 342 U. S. 851; Cassell v. Texas, 339 U. S. 282.

We deem it unnecessary to reach other arguments advanced by the appellant.

The judgment is reversed and the cause remanded.

McFaddin, J., dissents.

Ed. F. McFaddin, Associate Justice

(dissenting). It is my opinion that the judgment should be affirmed on the point discussed in the Majority Opinion; i.e., the selection of the jury that tried the case.

The appellant had successfully quashed the original jury panel solely because there were no Negroes selected on said panel. The thirty-two white persons on the original jury panel were not individually disqualified: the only reason for quashing the panel was that there were no Negroes on the original panel.

The Sheriff then selected six Negroes for the new panel and placed them at the top of the list, and some of the Negroes served on the trial jury that convicted the appellant. The percentage of six Negroes to thirty-two white persons was a greater percentage of Negroes to whites than the percentage of Negro poll tax holders bore to the percentage of white poll tax holders in Craighead County; so surely the appellant received more than a fair percentage of Negroes on the panel and also more than a fair percentage of Negroes on the jury that actually tried and convicted him.

I think the Sheriff followed the exact requirements of Act No. 93 of 1961, as now found in Ark. Stat. Ann. § 42-1912.1-2 (Supp. 1963). Prior to the said 1961 Act the Jury Commissioners would have been reassembled to select a new panel of jurors (Perry and Coggins v. State, 232 Ark. 959, 342 S. W. 2d 95). That opinion was delivered on January 9, 1961, and the Legislature then passed Act No. 93 of 1961, approved February 16, 1961, to eliminate the delay that would be incidental to requiring the Jury Commissioners to be reassembled. The said 1961 Act changed the rule stated in such cases as Maxwell v. State, 217 Ark. 691, 232 S. W. 2d 982. Under the plain wording of the said 1961 Act, the Sheriff had the right to select the thirty-two white persons that he did, and no error was committed in that regard.


source: Caselaw Access Project

author: Frank Holt, Associate Justice.

license: Public Domain

text:
    Lonoke Production Credit Assn. v. Bohannon.
    5-3271
    379 S. W. 2d 17
    Opinion delivered May 25, 1964.

      Chas. A. Walls, Jr., for appellant.

      James E. Dodds, for appellee.
   Frank Holt, Associate Justice.

This appeal involves the application of our Uniform Commercial Code. The first issue presented relates to the competing claims of appellant and the appellee, Raymond W. Strange.

On August 2, 1962, Charles Bohannon and his wife purchased some used farm machinery from a neighboring farmer, appellee Strange, giving a chattel mortgage with power of sale to secure the purchase price of $750.00 as evidenced by their note. The Bohannons took possession of the machinery. Appellee Strange did not file his mortgage until January 16, 1963.

On September 25, 1962, the appellant filed a financing statement and security agreement [executed pursuant to the Code] to secure a cash loan of $1,070.00 made by appellant to the Bohannons on this same farm equipment.

The Chancellor found that appellee Strange is the owner of the equipment and that neither appellant nor the Bohannons had any title or interest in the property. For reversal the appellant argues that title to the farm machinery passed to the Bohannons on August 22, 1962, the date of the purchase and the chattel mortgage. Therefore, since appellee Strange did not file his purchase money chattel mortgage until after the appellant had filed its financing statement and security agreement, the secured transaction of appellant was first perfected and takes priority over appellee Strange’s unfiled mortgage.

It is true that ordinarily a secured party must perfect his secured interest by a formal filing as required by our Code. However, appellant’s contention of priority is answered by Ark. Stat. Ann. § 85-9-302 (1) (c) (Addendum 1961). This section of the Code, in pertinent part, reads:

* * Security interest to which filing provisions of chapter do not apply. — (1) A financing statement must be filed to perfect all security interests except the following: * * * (c) a purchase money security interest in farm equipment having a purchase price not in excess of $2,500;”. [Emphasis added]

The next subsection, (d), also exempts a purchase money security interest in consumer goods. Arkansas Law Review, Yol. 16, No. 1, p. 153, recognizes these exemptions in a situation such as in the case at bar. There it is said:

¡i* * # ba,s been noted that under § 85-9-302 (1) (c) and (d) no filing is required for perfection of purchase money security interests in these types of goods.” [Farm equipment and consumer goods]

See, also, Wyoming Law Journal, Vol. 14, No. 3, p. 220; U.G.I. v. McFalls, 18 D. & C. 2d, 713 (Penn. 1959).

A chattel mortgage is a secured transaction within the meaning of the Code. Ark. Stat. Ann. § 85-9-102 (2), which relates to secured transactions, provides:

“This Article [chapter] applies to security interests created by contract including pledge, assignment, chattel mortgage, chattel trust, * * * intended as security.” [Emphasis added]

A security interest is defined in Ark. Stat. Ann. § 85-9-107 as follows:

“A security interest is a ‘purchase money security interest’ to the extent that it is (a) taken or retained by the seller of the collateral to secure all or part of its price; ”.

The chattel mortgage in the case at bar was a “purchase money security interest”. A security interest “attaches” when a secured agreement such as this chattel mortgage has been executed, the secured creditor has given value, and the debtor has acquired some ownership in the collateral which he can encumber. Ark. Stat. Ann. § 85-9-204.

In the case at bar appellee Strange’s purchase money security interest “attached” and was automatically perfected, although unfiled, on the date and delivery of the chattel mortgage since it involved the sale of farm equipment for a purchase price of less than' $2,500.00. Thus,' it must be said that appellee Strange’s unfiled chattel mortgage had priority over appellant’s recorded security interest and, therefore, it must be satisfied first from any proceeds of a sale of the farm equipment.

It is to be noted that appellee Strange contends that title to the farm equipment remained in him and the Chancellor so held. Appellee Strange is estopped from asserting this claim since he accepted the chattel mortgage. 36 Am. Jut., Right of Mortgagee, § 257, p. 819. To this extent the Chancellor’s decree must be modified.

The next issue presented is the competing claims of appellee W. A. Fisher and appellant. Appellee Fisher,, by oral agreement, entered into a business venture with, the Bohannons with reference to placing his calves upon the lands of the Bohannons for them to feed and for purposes of sale. When the calves were sold there was to be an accounting between the parties. At the time the Bohannons left Arkansas they received $76.00 from Fisher in settlement of the account between them. Prior to the appointment of a receiver, Fisher acquired possession of the calves and removed them from Lonoke County. The calves were included with the farm equipment in the collateral covered by the financing statement and security agreement filed on September 25,1962. The appellant contends that the eourt was in error in refusing to order Fisher to pay to the appellant the Bohannons ’ alleged equity in the calves. Appellee Fisher maintains that he never parted with the ownership of the calves and that the payment of $76.00 was in settlement for labor performed by the Bohannons and not for any equity. The Chancellor found this issue in favor of appellee Fisher. It certainly cannot be said that the Chancellor’s finding on this issue is against the preponderance of the evidence.

The decree is affirmed.


text:
    Bailey v. State.
    5047
    381 S. W. 2d 467
    Opinion delivered June 1, 1964.
    [Rehearing denied September 14, 1964.]

      E. V. Trimble and G. G. Mercer, for appellant.

      Bruce Bennett, Attorney General, by Jack L. Lessen-berry, Chief Asst. Atty. General, for appellee.
   ■ Carleton Harris, Chief Justice. This case has been before the courts on numerous occasions, and is now here for the second time on the merits. Appellant ivas convicted of the crime of rape, and sentenced to suffer the punishment of death. Some twenty-five assignments of error are listed in the motion for new trial, though only one of these is argued by appellant in his brief.

Four of these assignments deal with the sufficiency of the evidence. The prosecuting witness, a white woman, 49 years of age at the time of the alleged crime, testified that she retired at her home in Little Rock about 9:30 P.M., and was awakened about 12:30 A.M. by noises. As she started through the kitchen, investigating the sounds, a man caught hold of her arm; she began to scream, but he choked her and pressed a knife to her throat. The intruder, according to her testimony, stated that he wanted some money, and she replied that she would go get the money if he would let her go. He pushed her into the bedroom, held the knife to her throat, and forcibly had sexual intercourse with her. She begged him to leave her alone and promised to give him what money and jewelry she had. She first gave him $5.00 from her billfold, but this did not appease him. As the intruder pulled up his pants, he lost his billfold, and she got matches in order for him to look for it. In the light, the prosecutrix determined that he was a Negro. He found the billfold, which she noticed was brown, with a yellow and blue Air Force insignia on it. The prosecutrix was then forced to give him her purse containing $190.00, but he would not take the jewelry, stating, “he wasn’t going to take that and have somebody catch him with that.” After taking the purse, the man cut the telephone line, raped her again, and then left. She immediately ran next door, and notified her neighbor, and, shortly thereafter, her daughter and the police arrived. She subsequently identified appellant, Luther Bailey, as the perpetrator of the crimes. Actually, this testimony in itself was sufficient to sustain the charge, as we have held that corroboration is not necessary in a rape case. McDonald v. State, 225 Ark. 38, 279 S. W. 2d 44. However, there are many additional circumstances which forcefully point to appellant’s guilt. For instance, the officers found a folder on the floor at the foot of the bed, containing various identification cards bearing the name of Luther Bailey. The injuries to the prosecutrix were plainly visible, and the officers found a cut screen, muddy footprints in the house, a severed telephone line, and they also determined that the master electrical switch had been turned off. With other officers, Deputy Sheriff Mose Turner drove to Woodson, near Little Rock, where Bailey lived, and went to his home. The officers arrived there between 2:30 and 3:00 A.M., but Bailey’s wife reported that he was not at home. All of the officers then left except Turner and one other officer, who remained at the house for over an hour. Subsequently, Turner left to locate a telephone, and, while driving north toward Little Rock, the officer met Bailey, who was traveling south. Turner recognized him, turned around, and had Bailey stop the car at Woodson. A search of Bailey’s person revealed $133.00 in bills, together with a man’s billfold bearing an Air Force insignia. An examination of his automobile revealed, inter alia, a paring knife, found in the glove compartment, and a ladies’ purse, found under the front seat. In the purse were some check stubs, car keys, pictures, and women’s hair clamps, and the check stubs bore the name of the prosecuting witness. It is evident that the testimony was more than adequate to sustain the conviction.

Only three points are argued in the brief, these being, first, that Negroes were intentionally, deliberately, and systematically limited in the selection of the petit jury panel; second, that Negroes have been excluded from serving as jury commissioners for the past 50 years; and third, that Bailey was not retried within nine months as ordered and directed by the United States Eighth Circuit Court of Appeals.

The record does not reveal any objection interposed to the jury, but if otherwise, we certainly could not say error was committed as urged, since no motion to quash the panel was filed. The only reference to the jury was just prior to the voire dire when the defense counsel requested a subpoena duces tecum for the record and length of service of the jury panel during the term of court. This information was then supplied after which the defense requested a drawn and struck jury, and the names were placed in the box and drawn from the box. The record is absolutely barren as far as any other reference to the jury is concerned, except for the names of those who served on the trial jury. There appears no examination of jury commissioners, or of members of the petit jury panel. It would therefore appear that appellant must have been satisfied with the jury, else a record would have been made for the purpose of establishing discrimination.

We are unable to understand the reason for the remaining point argued by appellant, since this question has been clearly answered contrary to the contention made. In Bailey v. Henslee, 8 Cir., 1961, 287 F 2d 936, 938-939, the Circuit Court of Appeals for the Eighth Circuit held that Bailey had established an unrebutted prima facie case of limitation of members of his race in the selection of the jury which convicted him at the original trial. The opinion of the court concluded as follows:

"The State of Arkansas is entitled to a reasonable time within which to retry this defendant for the crime charged against him. Pending a retrial by the State, the District Court is directed to grant a stay of execution. If he is retried, the Court is directed to enter a dismissal of Bailey’s present petition for release on habeas corpus. If he is not retried within nine months from the filing date of this opinion, the District Court is directed to grant Bailey’s petition for a writ of habeas corpus.”

The case was then remanded for further proceedings and the opinion of the court was filed in the office of the clerk of the Circuit Court of Appeals’on March 17, 1961. A petition for rehearing was thereafter filed by Henslee and denied on May 4, 1961. Thereafter the mandate was sent down to the district court and was received on May 17, 1961.

That court, in compliance with the opinion and mandate, issued its order for stay of execution, and further stated:

"Provided, however, that if Petitioner is retried within nine months from May 17, 1961, the filing date of said opinion of the Eighth Circuit Court of Appeals in the clerk’s office of the United States District Court for the Eastern District of Arkansas, for the crime of rape allegedly committed by him in Pulaski County, Arkansas, on or about June 15, 1956, respondent may apply to this court for dismissal of this petition for a writ of habeas corpus and this stay of proceedings:
“Provided, further, that should Petitioner not he retried within said period, writ of habeas corpus will then be granted.”

The Pulaski County Circuit Court, after earlier appointing counsel to replace Bailey’s counsel who had moved out of the state, set the second trial for January 29, 1962, and the trial did commence on that date. On the same day that the Circuit Court set the case, Bailey’s attorneys filed in the Federal District Court for the Eastern District a “Petition for Writ of Prohibition and Mandamus,” and the next day filed an application for a writ of habeas corpus. The grounds asserted in both applications were that Bailey was not retried within the time specified by the Circuit Court of Appeals, since the nine month period “from March 17, 1961, had expired on December 17, 1961.” The application was denied by the District Court, and this actipn was upheld by the Circuit Court of Appeals. After discussing the matter somewhat at length, that court, in Bailey v. Henslee, 309 F. 2d 840, said:

“Our opinion could not operate to command any legal action in the proceedings until it ripened into a judgment formally communicated to the district court. It then follows, it seems to us, that the nine month period ran only from the date our mandate and opinion were filed with that court. Then and only then did they become effective. Then and only then did formal notice come to the district court of the result of the appeal to this court. Then and only then did the stay terminate which, under Rule 38 (a) (1), F.R. Cr.P., was in effect pending the appeal. Compare also Rule 35, F.R. Cr.P. The opinion, of course, was made available earlier to counsel under this court’s Rule 14 (e) and to the district court when copies of the “slip opinion” were routinely delivered to them. Similarly, our judgment was entered in our own records under our Rule 14 (b) on the date it was filed with our clerk. But this court, as does any appellate court, acts formally and officially only through its mandate. * * # We therefore construe our mandate to the effect that the designated period runs from the date of the filing of the mandate and opinion with the district court. * * * The beginning date in this case was thus May 17, 1961. The record shows that the second state trial began well within nine months from that date. The denial of the current application for the writ of habeas corpus was, as a consequence, proper.”

Assignment 7 of the motion for new trial relates to a motion for a change of venue. Appellant filed a petition for change of venue and set up that he had caused subpoenas to be issued to several persons, “all of which are qualified electors in this county and are in a position to know the general opinion of the public to testify in support of this motion.” The petition further requested that if the evidence offered was deemed insufficient, “the court would direct the Sheriff of Pulaski County to immediately go upon the streets of Little Rock, Arkansas, immediately preceding the said hearing and summons the first six (6) qualified electors that he meets to the end that they may be interrogated as to their opinion of the defendant’s chances to procure a fair and impartial trial in Pulaski County, Arkansas.” The court complied with this motion, although the application of appellant for a change of venue was not made in compliance with the statute. Ark. Stat. Ann. § 43-1502 (1947) requires that two credible persons, qualified electors and residents of the county, unrelated to the defendant in any manner, shall make an affidavit setting forth the facts which are relied upon for a change of venue. However, in Hildreth v. State, 214 Ark. 710, 217 S. W. 2d 622, we held that it was proper for the court to hear evidence in order to make a determination, even though affidavits were not presented. See also Trotter and Harris v. State, 237 Ark. 820, 377 S. W. 2d 14.

The motion being granted, the court proceeded to hear the testimony of the Sheriff of Pulaski County, two deputy sheriffs, two newspaper reporters, the publisher of the■“ Southern Mediator Journal” (circulation mainly among the colored population), the Chief of Police of Little Rock, the Chief of Police of North Little Rock, and seven witnesses at random selected by the sheriff at the request of appellant. Of all the testimony taken, no one testified that, in his opinion, appellant could not receive a fair trial, and only one, C. H. Jones, expressed any doubt whatever. When asked if he thought appellant could obtain a fair trial in Pulaski County, this witxiess answered, “I should think so. I should think he should get a fair trial- — I underscored that, you know, I know a case of that kind is very delicate. * * * If it was another county where there was a mixture of citizens, it would he better.” Let it also be remembered that this alleged crime was committed in 1956, and the passage of such a long period of time would certainly operate to appellant’s advaxxtage. Outraged feelings and hot tempers ixx the community (if ixxdeed such sentiment existed) would certainly texid to cool in six.years. We find no abuse of discretion in the trial court’s refusal to grant the motion.

Assignment 25 (amendment) of the motion for new trial asserts that the death penalty for rape has beexi unconstitutionally applied, ixx that it is reserved for use solely for Negroes charged with raping white women. No motioxi, written or oral, was offered prior to, or durixxg the trial, and there was no proof or offer of proof on this poixit before the trial court. This point has beexx raised before in this state, and we have held contrary to appellant’s contention. See Maxwell v. State, 236 Ark. 694, 370 S. W. 2d 113.

It is urged in Assignment 16 that the trial court erred in permitting the ixxtroduction ixxto evidence of certaixi items, viz, the identification folder, the knife, the money fouxid oxx Bailey, the brown billfold, axid the prosecutrix’ purse. These articles were identified by several witnesses, axid, ixx fact, xxo objection was made at the tixne when oxxe officer identified the items. At any rate, the items were admissible evidence to establish a connection between appellant and the crime. See Grays v. State, 219 Ark. 367, 242 S. W. 2d 701.

Assignment 9 relates to the testimony of Charles L. Pitts, who testified that the prosecuting witness appeared to have bruises and scratches on her throat and body. There was no error in admitting this testimony. Snetzer v. State, 170 Ark. 175, 279 S. W. 9.

Assignment 11 asserts that the trial judge erred by admitting evidence obtained by Deputy Sheriff Turner, because (as it is contended) the arrest of Bailey was illegal. This argument is based on the fact that no warrant of arrest had been issued for the appellant, and it is contended that the evidence subsequently acquired was obtained illegally. Ark. Stat. Ann. § 43-403 (1947) provides that a peace officer may make an arrest without a warrant where he has reasonable grounds for believing that the person arrested has committed a felony. Of course, as heretofore pointed out, after finding Bailey’s identification folder at the scene of the crime, there were certainly reasonable grounds to form the belief that he had committed the act. Let it also be remembered that Bailey was arrested during an early morning hour when it would have been extremely difficult to present the matter to a magistrate.

It seems to be well established that ■ evidence found upon a person legally arrested may be used against him. As stated in 20 Am. Jur. § 401, Page 361:

“It is a well-established principle of our criminal law, that evidence of guilt found upon a person under legal arrest for a crime may be used in evidence against him. ”

With regard to the articles found in the automobile after Bailey was placed under arrest, it is pointed out in Volume 1 of Searches, Seizures and Immunities, Section 5, Page 104, ‘ ‘ The general rule of law is that when a man is legally arrested for an offense, whatever is found on his person or in his control which it is unlawful for him to have and which may be used to prove the offense, may be seized and held as evidence. ’ ’ Further, on Page 105: “The law is well established that searches may be permitted as an incident to a lawful arrest without warrant, and this rule of law prevails throughout the country.” A similar view is taken in Volume 79, C.J.S., Searches and Seizures, Section 69, 847. It is important to remember that the evidence obtained from the automobile (the knife and the ladies’ purse containing articles belonging to the prosecuting witness) was evidence connecting Bailey with the crime for which he was being sought, and with which he was subsequently charged, rather than evidence of some offense committed on some other occasion of which the officer had no suspicion.

Assignments 12, 14, 17 and 19 relate to alleged error in permitting several of the officers to testify relative to statements made by the appellant. Bach officer testified that appellant was advised of his rights, was not abused in any manner, and that the statements made were free and voluntary on the part of the accused. These same assignments were urged as grounds for reversal in the first trial, and we rejected the contentions as being without merit. Bailey v. State, 227 Ark. 889, 302 S. W. 2d 796. In addition, the entire transcribed statement was read into evidence upon the request of counsel for appellant.

Assignment 18 relates to the introduction of photographs. This contention, too, was urged in the first trial, but was likewise held to be without merit. Bailey v. State, supra. The same applies to Assignment 21, wherein appellant asserts that his witness, Irene Wright, should have been permitted to testify that the prosecutrix •had telephoned Bailey on several occasions. In disposing of this contention, in the first case, this court stated:

“In Assignments 17 and 18, appellant challenges the correctness of the court’s striking the testimony of Irene Wright. She testified that appellant lived close to her and that she had received several telephone calls for him from a person who identified herself as the prosecuting witness. She did not know the prosecutrix and was not sure that the voice was that of a white woman! We think this testimony was properly excluded for the reason that the identity of the person who talked to the witness over the telephone was not satisfactorily identified. ‘ Generally, in order to introduce evidence of a telephone conversation or communication, otherwise unobjectionable, the identity of the person, who is claimed to have talked over the telephone, must first be satisfactorily established by the party seeking the introduction of the telephone conversation. To hold one responsible for statements and answers made over the telephone by unidentified persons would open the door for fraud and imposition,’ 20 Am. Jur., Evidence, §366, P. 344.”

In fact, most of the assignments of error relied upon were considered by this court on appeal following the original conviction on the charge, and the United States Supreme Court denied certiorari. 355 U. S. 851.

By Assignment 22, it is asserted that the trial court erred in giving certain instructions. With the exception of one instruction, only a general objection was made. We have held that it is appellant’s duty by specific objection to point out the error in any instruction, and a general objection is only sufficient if the instruction is inherently erroneous. Rutledge v. State, 222 Ark. 504, 262 S. W. 2d 650. None of the instructions given were inherently erroneous. Specific objection was made to Instruction No. 2 on the basis that the statement made by appellant was not free and voluntary in that Bailey had been in the custody of the officers “five or six hours without having his constitutional rights explained to him or without having the benefit of counsel. ’ ’ Several witnesses testified that the admissions were made freely and voluntarily, and it will be remembered that Bailey’s entire statement was read to the jury at the request of appellant. We thus find no merit in this contention.

The defendant requested that the court give the jury an instruction on assault with intent to rape, which the court refused to do. Testimony on the part of the prosecuting witness was that she was twice raped; testimony on the part of the defendant was that he did not have intercourse with the prosecutrix, nor did he attempt any such act. In the statement offered by appellant (made a few hours after the offense had been committed), Bailey stated that he did have intercourse with the prosecuting witness, but with her consent. In either event, it is clear that there was no testimony by either the state or the defendant that only an assault had been made. Under the evidence, appellant was either guilty of rape — or he had committed no sexual offense whatsoever. Accordingly, there was no error in refusing to give this instruction. Whittaker v. State, 171 Ark. 762, 286 S. W. 937; Needham v. State, 215 Ark. 935, 224 S. W. 2d 785.

In assignment 24, it is argued that the penalty was excessive. In Rorie v. State, 215 Ark. 282, 220 S. W. 2d 421, we said:

“Finally, appellant’s counsel asks this Court to ‘exercise its constitutional power and reduce the death sentence to life imprisonment.’ Among other cases, we are cited to Blake v. State, 186 Ark. 77, 52 S. W. 2d 644, in which case this Court modified the judgment from the death sentence to imprisonment. When this Court finds that the evidence is insufficient to support the punishment assessed, then we have the power to modify the punishment. Our eases clearly reflect, however, that this modification is done, not on a basis of judicial clemency, but only in a case in which the evidence would not sustain the higher punishment assessed. In the case at bar we find the evidence sufficient to support the jury verdict. ’ ’

The quoted statement likewise applies to the instant case.

Other errors are asserted in the motion for new trial, and some objections were made to certain testimony during the course of the trial which were not included in the motion. Since this is a capital case, we have explored the record, and given consideration to each objection made by appellant, as well as each assignment of error.

Finding no prejudicial error, the judgment is affirmed.

Mr. Justice Holt disqualified.

         Bailey v. State, 1957, 227 Ark. 889, 302 S. W. 2d 796; Bailey v. State, 1958, 229 Ark. 74, 313 S. W. 2d 388; Bailey v. Henslee, D. C. Ark. 1958,168 F. Supp. 314; Bailey v. Henslee, D. C. Ark. 1960, 184 F. Supp. 298; Bailey V. Henslee, 8 Cir., 1959, 264 F. 2d 744; Bailey V. Henslee, 1961, 287 F. 2d 936; Bailey v. Arkansas, 1957, 355 U. S. 851, 78 S. Ct. 77, 2 L. Ed. 2d 59; Bailey v. Arkansas, 1958, 358 U. S. 869, 79 S. Ct. 101, 3 L. Ed. 2d 101; Bailey v. Henslee, 1960, 361 U. S. 945, 80 S. Ct. 408, 4 L. Ed. 2d 364; Henslee v. Bailey, 1961, 368 U. S. 877, 82 S. Ct. 121, 7 L. Ed. 2d 78; Bailey V. Henslee, 8 Cir., 309 F. 2d 840.

       These two points were not raised in the motion for new trial.

       This refers to the late Lee Henslee, former Superintendent of the Arkansas State Penitentiary.

       In his amendment, appellant asserts, “no white man has ever been electrocuted for rape on any woman, white or colored.” Without any research whatsoever, it can quickly be stated that this statement is erroneous. In Fields v. State, 235 Ark. 986, 363 S. W. 2d 905, Fields, a white man, was convicted of rape, and sentenced to death. We affirmed the conviction on May 27, 1963, and Fields died in the electric chair January 24 of this year. See also footnote 1 in Mitchell v. State, 233 Ark. 578, 346, S. W. 2d. 201.

       In fact, the evidence also connected appellant with lesser crimes committed, under the evidence, during the same period of time as the rapes, i.e., burglary, larceny, and robbery.

       This was likewise done in the first case.


author: Ed. P. McFaddin, Associate Justice.

text:
    Tiner v. Tiner
    5-3231
    379 S. W. 2d 425
    Opinion delivered June 1, 1964.

      Jay W. Dickey, Jr., and Jay W. Dickey, for appellant.

      Paul B. Pendleton, Coleman, Gantt, Bamsay & Cox and Bridges, Young & Mattheivs, for appellee.
   Ed. P. McFaddin, Associate Justice.

This litigation stems from a traffic collision between a car driven by appellant, Berlin Tiner, and a car driven by A. B». Merritt. In the collision four of the children in the Berlin Tiner car were killed and one was permanently injured. Three of those fatally wounded were children of Berlin Tiner and his divorced wife, Alma Jean' Tiner; the fourth fatally wounded child was Berlin Tiner’s niece, Linda Tiner; and the permanently injured child was Berlin Tiner’s nephew, Charles Tiner, Jr. Both Linda Tiner and Charles Tiner, Jr. were the children of Mr. and Mrs. Charles Tiner, Sr. Two separate actions were filed as a result of the traffic collision and in each case there were interventions, all of which matters will be subsequently described. Both cases were consolidated and tried in the Jefferson Circuit Court and resulted in verdicts against Berlin Tiner, who prosecutes the present appeal. The points presented on appeal are complicated by a variety of other issues which appear to have been settled, but a rather detailed statement of facts is necessary in order to explain how some of the present issues are still germane.

On September 3, 1961, the Berlin Tiner and the Charles Tiner, Sr. families had been visiting relatives in Stuttgart and prepared to return to their homes in Pine Bluff. Some of the group were in the Berlin Tiner car and some were in the Charles Tiner, Sr. car. In the car with Berlin Tiner were his three children, his niece Linda, and his nephew Charles, Jr. Others of the party group were in the car of Charles Tiner, Sr. Berlin Tiner left Stuttgart some time before Charles Tiner, Sr. When Berlin Tiner had traveled several miles from Stuttgart toward Pine Bluff he encountered a sudden rain shower which made the asphalt highway very slick. His car skidded and “fish-tailed,” and finally ran into and against the car of A. R. Merritt, who was proceeding from Pine Bluff to Stuttgart. This collision between the Berlin Tiner car and the Merritt car resulted in the death of the three Berlin Tiner children, the death of Linda Tiner, permanent injuries to Charles Tiner, Jr., injuries to Berlin Tiner, and also injuries to the Merritts.

On July 19, 1962, Mr. and Mrs. Merritt filed action for damages in the Jefferson Circuit Court against Berlin Tiner. This was Case No. 15738 and is hereinafter referred to as the “ Merritt-Tiner ” case. Berlin Tiner, by answer and cross complaint, sought to recover damages against the Merritts for his personal injuries and damages. The National Bank of Commerce of Pine Bluff, as the administrator of the estates of the three Berlin Tiner children, intervened and sought damages against Merritt and also sought damages against Berlin Tiner; and a portion of the damages sought by the administrator was for the mental anguish of the mother of the minors, Mrs. Alma Jean Tiner. Later, by specific amendment, the said administrator of the Berlin Tiner children sought damages against Merritt for the mental anguish of Berlin Tiner on account of the death of his children.

On September 27, 1962, Charles Tiner, Sr., individually and in his representative capacity as father and next friend of Charles Tiner, Jr. and administrator of the estate of his deceased daughter Linda Tiner, filed action in the Jefferson Circuit Court against Berlin Tiner and A. R. Merritt, seeking damages for personal injuries of Charles Tiner, Jr., and damages for the death of Linda Tiner, and included were damages for the mental anguish of Mr. and Mrs. Charles Tiner, Sr. occasioned by the death of their daughter Linda. This is Case. No. 15820 and is hereinafter referred to as the “Tiner-Tiner” case. This complaint alleged that Berlin Tiner was guilty of willful and wanton negligence and that A. It. Merritt was guilty of at least simple negligence. There were some interventions in this case and also various in limine pleadings.

On April 5, 1963, the Jefferson Circuit Court, over the objections of Berlin Tiner, consolidated the two cases (i.e., No. 15738 Merritt v. Tiner, and No. 15820 Tiner v. Tiner); and jury trial commenced in the consolidated cases on April 9, 1963, and continued for six days. On April 11, 1963, in the course of the trial, the complaint of A. R. Merritt and wife against Berlin Tiner, and Berlin Tiner’s cross complaint against Merritt, were both settled and dismissed from the trial then in progress. But there were left (a) against Merritt and intervention and complaint of the administrator of the estates of the three Berlin Tiner children; and also (b) against Merritt the intervention and complaint of Charles Tiner, Sr. for Charles Tiner, Jr., and the estate of Linda Tiner. There were also left (c) the claim of Charles Tiner, Sr. in his personal and representative capacity against Berlin Tiner; and (d) against Berlin Tiner the claims of the administrator of the estates of the Berlin Tiner children.

The Trial Court submitted the case to the jury on special interrogatories; and below we copy each interrogatory and the answer of the jury to'the same:

“SPECIAL INTERROGATORY NO. 1. Do you find from a preponderance of the evidence in this case that A. R. Merritt was guilty of negligence which was a proximate cause of the collision?”

“ANSWER: NO.”

“SPECIAL INTERROGATORY NO. 2. Do you find from a preponderance of the evidence in this case that Berlin Tiner, Sr. was guilty of operating his automobile in willful and wanton disregard of the rights of others, and that such was a proximate cause of the collision?”

“ANSWER: YES.”

“INTERROGATORY NO. 3. Do you find from a preponderance of the evidence in this case that Charles Tiner, Jr. was guilty of contributory negligence as defined in the instructions given you by the Court?”

“ANSWER: NO.”

“INTERROGATORY NO. 4. Do you find from a preponderance of the evidence in this case that Alma Jean Tiner was guilty of contributory negligence as defined in the instructions given you by the Court?”

“ANSWER: NO.”

“INTERROGATORY NO. 5. If you have answered the first 4 interrogatories ‘Yes,’ or if you have answered any two of the, first 4 interrogatories ‘Yes,’ now please state the percentage of fault of each person found to be guilty of negligence of willful and wanton negligence, considering the whole negligence in the case, of whatever degree, to be 100%.”

(Since the jury did not answer any of the interrogatories “Yes” except the one relating to Berlin Tiner, it became unnecessary for the jury to answer this Interrogatory No. 5.)

“SPECIAL INTERROGATORY NO. 6. (To bo answered only if either Interrogatory No. 1 or Interrogatory No. 2, or both, are answered ‘Yes.’) What do you find from a preponderance of the evidence in the case is the total damage sustained by :

(a) Charles Tiner, Jr., for his injuries?”

“ANSWER: $25,000.00.”

“(b) Charles Tiner, Sr. for hospital, medical and doctor bills incurred by him because of the injuries to Charles Tiner, Jr.”

“ANSWER: $2,175.42.”

“(c) Charles Tiner, Sr., as Administrator of the Estate of Linda Tiner, for the funeral expenses of said child ”? ’ ’

“ANSWER: $664.52.”

“(d) Charles Tiner, Sr. and Frances Tiner for mental anguish, if any, suffered by them because of the death of said Linda Tiner?”

“ANSWER: $25,000.00 (Total).”

“(e) National Bank of Commerce of Pine Bluff, Administrator in Succession of the Estates of Berlin Tiner, Jr., Rita Tiner, and Glorya Tiner for the funeral expenses of said children? (Which is agreed to be $1,689.07.)”

“ANSWER: $1,689.07.”

“(f) National Bank of Commerce of Pine Bluff, Administrator in Succession of the Estates of Berlin Tiner, Jr., Rita Tiner, and Glorya Tiner, for the benefit of Alma Jean Tiner, mother of said children, for mental anguish, if any, suffered by her as a result of the death of her three children?”

“ANSWER: $40,000.00.”

Judgments were rendered in accordance with the verdicts, and from those judgments Berlin Tiner appealed from all judgments against Mm. The Administrator of the estates of the three Berlin Tiner children also appealed as against Merritt, but later the administrator dismissed all appeals against A. R. Merritt. Also, pending-appeal, the judgments of the Bank as administrator of the estates of the three Berlin Tiner children, were séttled and dismissed, which judgments against Berlin Tiner totalled $41,689.07. There are left now before us: (a) the appeal of Berlin Tiner against Charles Tiner, Sr., in his personal and representative capacity; and (b) the appeal of Berlin Tiner against A. R. Merritt on one angle of the case. We shall refer to Berlin Tiner as appellant and Charles Tiner, Sr. (in his personal and representative capacity) as appellee, and will refer to Merritt by such name, and the Administrator of the estates of the three Berlin Tiner children by such identification.

Berlin Tiner urges eight points on his appeal, being:

“I. The trial court erred in permitting National Bank of Commerce, Administrator-in-Succession of the Estates of Berlin Tiner, Jr., Bita Tiner and G-lorya Tiner, Deceased (children of Berlin Tiner) to intervene in the case of A. B. Merritt, et al, vs. Berlin Tiner.
“II. The trial court erred in permitting consolidation for trial of the case of Charles Tiner, Sr., et al, vs. A. B. Merritt and Berlin Tiner (No. 15820) with the case of A. B. Merritt, et al, vs. Berlin Tiner (No. 15738).
“III. The trial court erred in giving an instructed verdict against Berlin Tiner on his claim against A. B. Merritt, et al, for mental anguish.
“IV. The trial court erred in giving instructions No. 3, No. 15, and No. 18.
“V. The trial court erred in failing to declare a mistrial, upon the motion of Berlin Tiner, based upon a statement made by counsel for Charles Tiner, Sr.,, et al, in his closing argument to the jury.
“VI. The verdict of the jury was contrary to the evidence in finding Berlin Tiner guilty of willful and wanton negligence.
“VII. The verdict of the jury was contrary to the evidence in finding that Charles Tiner, Sr., Frances Tiner and Charles Tiner, Jr., were free of negligence which contributed to the death of Linda Tiner and to the alleged injuries of Charles Tiner, Jr.
“VIII. The verdict of the jury was excessive.”

I and II.

We find no merit in the appellant’s first two points. The Bank, as administrator of the estates of the three Berlin Tiner children, intervened and claimed damages against A. B. Merritt for at least simple negligence, and against Berlin Tiner for willful and wanton negligence. The claims of the administrator arose out of the one traffic mishap and were properly triable in the one case. Likewise, the consolidation of the two cases (No. 15728 and No.' 15820) was within the sound discretion of the Trial Court; and we see no prejudicial error. The mere fact that some oft he parties {i.e., the Merritts) might have recovered against Berlin Tiner by proving simple negligence, and that the other parties (i.e., Charles Tiner, Sr. in his personal and representative capacity) could not recover against Berlin Tiner except by proving willful and wanton negligence — such situation — did not unduly complicate the case. The Court instructed the jury in detail on these matters, and the issues were submitted on special interrogatories. In short, we see no merit to appellant’s first and second points.

III.

Appellant’s third point relates to the instructed verdict the Court gave in favor of A. ft. Merritt in regard to the mental anguish claim of Berlin Tiner for the death of the three Berlin Tiner children. We find no prejudice to Berlin Tiner in such ruling. When the trial commenced on April 9th Berlin Tiner was suing A. R. Merritt for Berlin Tiner’s personal injury and property damage. Also, Berlin Tiner had insisted that the administrator of the estates of his three deceased children claim damages against A. R. Merritt for Berlin Tiner’s mental anguish suffered because of the death of his three children. On April 11, 1963 (the third day of the jury trial) there was entered an order settling and dismissing the claim of Berlin Tiner against A. R. Merritt and the claim of A. R. Merritt against Berlin Tiner.

One of the claims of Berlin Tiner against A. B. Merritt iras for the mental anguish Berlin Tiner claimed to have suffered because of the death of his three children. This claim was being prosecuted by the administrator of the estate of the three Berlin Tiner children. When the entire case ivas finally ready to submit to the jury several days after April 11, 1963, the Court instructed the jury that it would not consider any claim of Berlin Tiner against A. ft. Merritt for mental anguish for the death of the three Berlin Tiner children. To that instruction Berlin Tiner objected, and now argues error.

There are several .answers to appellant’s argument. In the first place, the order of dismissal of April 11, 1963 (previously copied in the footnote) is broad enough to cover the mental anguish of Berlin Tiner against A. R. Merritt. Another and second answer is that the jury, in answer to Interrogatory No. 1, as previously copied, found that A. R. Merritt iras guilty of no negligence. This finding rendered moot the matter of the instruction. Johnston v. Fuqua, 105 Ark. 358, 151 S. W. 693; Capital Fire Ins. Co. v. Kaufman, 91 Ark. 310, 121 S. W. 289. If Merritt ivas guilty of no negligence, then Berlin Tiner was not prejudiced by the Court’s refusal to submit to the jury the issue of Berlin Tiner’s mental anguish which could have been recovered against A. R. Merritt only if Merritt had been found guilty of negligence.

Instructions. The Trial Court gave more than thirty instructions covering all angles of the cases. Among other instructions given by the Court were Nos. 3, 15, and 18, each of which was given over the general and specific objections of Berlin Tiner. It would unduly prolong this opinion and would serve no useful purpose to copy the thirty instructions, and the appellant’s objections to each of them. It is sufficient to say that we have carefully studied each of the instructions, the evidence which justified the Court in giving each, and the law which supports each; and we have concluded that there is no merit to appellant’s arguments regarding any of these instructions.

Y.

Appellant claims he was entitled to a mistrial because of a statement made by the counsel for Charles Tiner, Sr. in his closing argument. To give all the details concerning this situation would unduly prolong this opinion; but we find no merit to this point. The fact that Berlin Tiner was driving an automobile which belonged to the Smart Chevrolet Company had been mentioned several times in the course of the trial. Berlin Tiner himself testified, without objection, on Tr. p. 635: “I was driving a demonstrator automobile furnished me by Smart Chevrolet Company.” So the fact that the attorney for appellee, in his closing argument, happened to mention the name of Smart Chevrolet Company, did not constitute any reversible error. Furthermore, the Court, when objection was made, promptly told the jury to entirely disregard any such reference. With all of this clearly shown, we find no merit to appellant’s fifth contention.

YI.

Appellant’s sixth point relates to the action of the Court in submitting the case to the jury on the question of whether Berlin Tiner was guilty of willful and wanton negligence. At every step in the trial the appellant insisted that there was no evidence of his willful and wanton negligence; and that is the point now before us. Our guest statutes are Ark. Stat. Ann. §§ 75-913 and 75-915 (Repl. 1957). Linda Tiner and Charles Tiner, Jr. were guest passengers in the car of Berlin Tiner, and neither Charles Tiner, Jr. nor the estate of Linda Tiner can recover against Berlin Tiner unless and until they show that Berlin Tiner was guilty of willful and wanton negligence. Likewise, the three Berlin Tiner children were guest passengers in the ear of Berlin Tiner; and the administrator of the estate of each of these children cannot recover for the estate or for the mental anguish of the mother, Mrs. Alma Jean Tiner, unless and until it is shown that Berlin Tiner was guilty of willful and wanton negligence. The Court so instructed the jury; and the instructions on this point are almost verbatim from those approved by us in tlie case of Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226.

With the burden being thus understood, we view the evidence in the light most favorable to the verdicts, as is our' rule. What is the evidence as to the willful and wanton negligence of Berlin Tiner?

(1) Berlin Tiner stated that shortly before the collision there began a torrential rain: ‘ ‘. . . I went into it not as a drizzle. I went into the rain as a sheet or wall of rain ...” He testified that his car began to skid or “fish-tail” on the slick asphalt road and was well over the center line, and on his left at the time of the collision, and had skidded or “fish-tailed” so much that the rear of his car was in front of the motor.

(2) It was shown that during the “sheet or wall of rain” visibility was practically nil.

(3) Charles Tiner, Jr. testified that shortly before the Berlin Tiner car entered the rain the car was traveling 80 miles an hour and that there was no lessening of that speed even up to the time of the collision. Other witnesses placed the speed of the Berlin Tiner car at 70 miles an hour, even as it approached the Merritt car.

So the question is whether a person traveling 80 miles per hour in a sheet of rain, with practically no visibility, can thereby be found guilty of willful and wanton negligence. Some of our recent cases on our guest statute are: Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226; Sims v. Tingle, 232 Ark. 239, 335 S. W. 2d 449; Cousins v. Cooper, 232 Ark. 605, 339 S. W. 2d 316; Henshaw v. Henderson, 235 Ark. 130, 359 S. W. 2d 436; and Spencer v. Vaught, 236 Ark. 509, 367 S. W. 2d 238. In Harkrider v. Cox and in Spencer v. Vaught we liad occasion to consider the sufficiency of the evidence to take the case to the jury on the question of willful and wanton negligence; and we think the evidence in the case at bar meets all the tests stated in Harkrider v. Cox. Here, there ivas an excessive speed, with a lack of visibility, and a skidding car. One witness testified that Berlin Tiner told him that he could have gone to the ditch on the road on his right side but did not want to injure the car. This ivas bitterly denied; but it was evidence which the jury had a right to believe. So, we have a man driving down the road at a speed of 80 miles an hour, with his car skidding and “fish-tailing,” with no visibility, and no real effort to check the speed of the car. We conclude that this evidence is sufficient to take the case to the jury on the question of willful and wanton negligence.

VII.

Appellant’s seventh point relates to the matter of contributory negligence; and we find no merit to appellant’s argument on this point. There is no evidence that Charles Tiner, Sr. ivas guilty of contributory negligence in allowing his children to travel in the car of Berlin Tiner. Charles Tiner, Jr. was thirteen years of age at the time of the collision, and Linda Tiner 'was ten years of age. The issues of negligence and contributory negligence are usually questions of fact; and, without reviewing all the evidence, we reach the conclusion that the question of the contributory negligence of these children was a question of fact for the jury. The jury found that they were not guilty of contributory negligence; and we cannot say that the jury’s findings were in error.

VIII.

Appellant’s eighth and final point states that the jury verdicts were excessive. "We have previously copied the verdicts. Charles Tiner, Jr. recovered for his injuries and pain and suffering the sum of $25,000.00. This is in no wise excessive. His right wrist was broken, his left arm was broken above the elbowT, his left leg and hip were dislocated, and he had three broken ribs on his right side. He was unconscious for some time and was in the hospital several weeks and lay flat on his back for six weeks. A brace was placed on his foot and connected to his knee to force his foot to take a step. The doctor who treated him, and whose qualifications were admitted, testified that he saw the boy nearly every day while he ivas in the hospital; that the boy had a 54% disability to his left leg below the knee due to the permanent loss of sensation of feeling in the leg, as well as an inability to lift the foot; that the boy had a 21% disability to the left arm because the fracture had healed with a little angulation, resulting in the arm ■ swinging toward the body rather than at the normal carrying angle where it swings from the upper arm; that the boy had a very weak joint and lift of the left foot and as a result had a tendency to drag the toe, giving him a peculiar gait; and would probably develop traumatic arthritis of the elbow joint. The doctor stated that Charles Tiner, Jr. had a 24.8% disability to his body as a whole; and, in the doctor’s opinion, these injuries were permanent. Here is a young boy, maimed for life. Prior to the collision he had played baseball and football, and danced. All of these are now taken from Mm. Certainly the $25,000.00 judgment in his favor is in no wise excessive.

Charles Tiner, Sr. recovered judgment for $2175.42 because of the medical and doctor bills that he paid as the father of Charles Tiner, Jr.; and this is not excessive. Charles Tiner, Sr. paid the funeral expenses of his daughter, Linda Tiner, of $664.52, and recovered judgment for this amount; and no excess is present.

There remains, however, one verdict which gives us most serious concern and that is the judgment of $25,000.00 to Charles Tiner, Sr. and his wife for mental anguish suffered because of the death of their daughter, Linda Tiner. Our statute allowing recovery for mental anguish in cases like this is Act No. 255 of 1957, now found in Ark. Stat. Ann. § 27-906 et seq. (Repl. 1962). This statute was upheld by us in Peugh v. Oliger, 233 Ark. 281, 345 S. W. 2d 610, in which case there is contained a discussion of mental anguish. In 15 Am. Jur. 602, ‘ ‘ Damages ’ ’ § 183, the holdings of various jurisdictions are summarized:

“Mental anguish from a pecuniary standard, is incapable of definite calculation. The law furnishes no definite rule or standard by which such suffering may be valued or compensated for in money or which will afford a certain basis upon which damages therefor can be estimated. The amount to be awarded in any particular case necessarily, therefore, rests in the discretion of the jury, subject to review as in other cases. The difficulty in measuring damages of this kind, moreover, should not preclude their recovery in a proper case.”

In Smith v. Tipton, 237 Ark. 486, 374 S. W. 2d 176, we held that a verdict was not excessive which awarded parents $12,500.00 for mental anguish for the death of a son and there said:

“As to the deceased boys, there has not been and will never be devised a definite and satisfactory rule by which to determine the amount of money required to compensate parents for mental anguish. Ronnie Tipton and Johnnie Lee Roughléy were normal boys with normal parent-child relationships. There can be no doubt from the testimony that their parents’ grief was deep and genuine. The depth of grief of the mother of Johnnie was so great that she was unable to sleep at night and she often arose from the bed and walked some four miles to the cemetery Avhere he was buried. Ronnie Tipton was an only child. We are uuwilliug to say the judgment of $12,500.00 in each ease was excessive.”

The question now before us is whether the verdict for $25,000 for mental anguish in the case at bar is so grossly excessive as to shock the conscience of the Court. It is true that the verdict is large; but the evidence shows most strongly the great mental anguish that these parents have suffered. To detail such evidence would serve no useful purpose. It is sufficient to say that after reviewing all the evidence we cannot say that the verdicts should be reduced. Therefore, we leave them undisturbed.

Finding no error in the entire case, the judgments are affirmed.

Harris, C.J., not participating.

       Berlin Tiner’s children were Berlin, Jr., Rita, and Glorya. They were the. children of Berlin Tiner and his divorced wife, Mrs. Alma Jean Tiner, and all three of the Berlin Tiner children were killed in the collision.

         This very descriptive word is used in Webster’s Third New International Dictionary in relation to an airplane or a ship; but the witnesses, in using it in the case at bar, explained that the rear end of the car would whip.around to the front as the car skidded down the highway.

       We copy the pertinent excerpts oí said judgments: “IT IS, THEREFORE, BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that so much of the prayer of the intervention of the National Bank of Commerce as administrator of the estates of Berlin Tiner, Jr., Rita Tiner and Glorya Tiner as prays judgment against A. R. Merritt for mental anguish on behalf of Berlin Tiner be, and the same is hereby dismissed with prejudice pursuant to the directed verdict given by this Court.
      “IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that the plaintiff, Charles Tiner, Jr., through his father and next friend, Charles Tiner, Sr., do have and recover of and from the defendant, Berlin Tiner, judgment in the sum of Twenty Five Thousand ($25,000.00) Dollars.
      “IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that Charles Tiner, Sr. do have and recover of and from the defendant, Berlin Tiner, judgment in the sum of Two Thousand One Hundred Seventy-Five and 42/100 ($2,175.42) Dollars.
      “IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that Charles Tiner, Sr., as administrator. of the estate of Linda Tiner, deceased, do have and recover of and from the defendant, Berlin. Tiner, judgment in the sum of Six Hundred Sixty-Four ($664.00) Dollars.

        “IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that Charles Tiner, Sr. and Frances Tiner, jointly, do have and recover of and from the defendant, Berlin Tiner, judgment in the sum of Twenty Five Thousand ($25,000.00) Dollars by reason of the death of Linda Tiner.
      “IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that the National Bank of Commerce of Pine Bluff, administrator in succession of the estates of Berlin Tiner, Jr., Rita Tiner and Glorya Tiner, for the use and benefit of said estates do have and recover of and from the defendant, Berlin Tiner, judgment in the sum of One Thousand Six Hundred Eighty Nine and 07/100 ($1,689.07) Dollars, and that the National Bank of Commerce of Pine Bluff, as administrator in succession of the estates of Berlin Tiner, Jr., Rita Tiner, and Glorya Tiner, for the use and benefit of Alma Jean Tiner, their mother, do have and recover of and from the defendant, Berlin Tiner, judgment in the sum of Forty Thousand ($40,000.00) Dollars.
      “IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that the Intervenor in Case No. 15738 take nothing against A. R. Merritt, and said intervention, insofar as it pertains to A. R. Merritt, be, and the same is hereby, dismissed with prejudice.
      “IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED, that the plaintiffs in Case No. 15820 take nothing against A. R. Merritt, and said complaint, insofar as it pertains to A. R. Merritt, be, and the same is hereby, dismissed with prejudice.
      “IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that all of said judgments shall bear interest from the date of said judgment so entered herein at the rate of six per cent (6%) per annum and that the Intervenor and the Plaintiffs herein should have of and from Berlin Tiner their costs herein paid, and as to all of said judgments, garnishment and execution may issue as in law provided, to which judgment Berlin Tiner objects and excepts.”

       The said order, including the captaion, reads as follows:
      “IN THE
      CIRCUIT COURT OF JEFFERSON COUNTY, ARKANSAS A. R. MERRITT, LETA S. MERRITT AND A. R.
      MERRITT, TRUSTEE OF THE W. I. PAYNE
      ESTATE ................................ PLAINTIFFS
      v. No. 15738
      BERLIN TINER, SR______________________________________________________DEFENDANT
      NATIONAL BANK OF COMMERCE OF PINE BLUFF, ADMINISTRATOR IN SUCCESSION OF THE ESTATES OF BERLIN TINER, JR., RITA TINER, AND GLORYA TINER, DECEASED ______________________________________________________________________INTERVENOR
      “ORDER OF DISMISSAL WITH PREJUDICE
      “Now on this day come the plaintiffs, A. R. Merritt, Leta S. Merritt and A. R. Merritt, Trustee of the W. I. Payne Estate, by their attorneys, Bridges, Young and Matthews and Coleman, Gantt and Ramsey, and comes the defendant, Berlin Tiner, Sr., by his attorney, Jay W. Dickey, and announce to the court that the issues in this litigation between these parties have been settled and that the complaint of the plaintiffs and the cross complaint of the defendant should be dismissed.
      “It is, therefore, considered, ordered and adjudged by the court that the complaint of the plaintiffs, A. R. Merritt, Leta S. Merritt and A. R. Merritt, Trustee of the W. I. Payne Estate against Berlin Tiner, Sr., be and it is hereby dismissed with prejudice and that the cross complaint of the defendant, Berlin Tiner, Sr., against A. R. Merritt and A. R. Merritt, Trustee of the W. I. Payne Estate be and it is hereby dismissed with prejudice.
      “April 11, 1963
      “/s/ Henry W. Smith, Circuit Judge.”

       Of course, Berlin Tiner denied such speed but, as aforesaid, we must view this evidence in the light most favorable to support the jury-verdict.

       See “Family Torts in Automobile Cases” in 13 Ark. Law Review 299; and see also annotation in 42 A.L.R. 2d 350: “Rights of injured guests as affected by obscured vision from vehicle in which he was riding.”

       There was a verdict in favor of the Bank, as Administrator of the estates of the three Berlin Tiner children, for $40,000.00 for mental anguish of Mrs. Alma Jean Tiner, the mother of the children; but this was settled pending appeal and is not before us.

       We find the following' language used by the Florida Supreme Court in Florida Dairies Co. v. Rogers, 161 So. 85: “Damages for mental pain and suffering are not generally regarded as punitive, hut more in the nature of compensatory. The law has devised no fixed standard by which they can be calculated, and since this is the case, the amount to be awarded must rest in the discretion of the jury. The law measures compensation for mental pain and suffering in money, and while this may be a poor criterion, it has been said that to forbid it because perchance the law’s scales are not sufficiently delicate for their admeasurement is' equally to condemn the use of scales in all other directions, and in the very cases and for the very purposes now admittedly sanctioned by the law.”


author: Ed F. McFaddin, Associate Justice.

text:
    Van Dalsen v. Inman.
    5-3267
    379 S. W. 2d 261
    Opinion delivered June 1, 1964.

      Ganncmay (& Gannaway, for appellant.

      Spencer S Spencer, Gregory é Glaycomb, for appellee.
   Ed F. McFaddin, Associate Justice.

The Trial Court sustained the defendant’s motion for summary judgment, and by this appeal the apx^ellants challenge the correctness of such ruling. The appellants (plaintiffs below) are Brice Van Dalsen and the Bailsback Tractor Company (hereinafter called “Bailsback”), and the real appellee (which was the defendant below) is Jim "Walter Corporation. The action was for personal injuries sustained by Van Dalsem and property damage sustained by Bailsback when a car driven by Fred Inman, Sr. collided with the Bailsback vehicle. It was alleged that Inman was negligent and that he was at the time the servant of Jim Walter Corporation and acting within the scope of his employment.

In testing the correctness of the ruling of the Trial Court in granting the summary judgment for Jim Walter Corporation, we state the facts in the light most favorable to the appellants, giving them the benefit of all the evidence. Fred Inman, Sr. lived in Stuttgart and was a salesman for Jim Walter Corporation and engaged in selling shell homes. Mr. Inman furnished his own automobile and paid his own expenses, and his only compensation was a commission of approximately $100.00 on each shell home that he sold. The office of Jim Walter Corporation was in Pine Bluff, and at the times here involved Hollis Adams was the manager of - the Pine Bluff office and B. J. Weiss was the office secretary. Whenever Mr. Inman had a prospect whom he believed ready to purchase, he contacted Mr. Adams in the Pine Bluff office, who went with Inman to close the sale. Tnmau was supposed to work every day. He selected his route and the prospects to see, but he kept the Pine Bluff office informed of his whereabouts.

Mr. Inman’s wife was in a Little Bock hospital, and about 11:00 A.M. on Tuesday, February 13, 1962, Mr. Inman and Ms mother drove in Mr. Inman’s ear from his home in Stuttgart to visit Mrs. Inman. They reached the hospital shortly after 1:00 P.M. and visited with Mrs. Inman until about 2:00 P.M. From the hospital Mr. Inman and his mother drove to North Little Bock to visit Mr. Inman’s sister. At about 4.45 P.M. Mr. Inman said: “Mother, we must be going. I want to go through Pine Bluff and see my boss man.” Accordingly, Mr. Inman and his mother drove from Little Bock to Pine Bluff. The office of the Jim Walter Corporation was closed and Mr. Liman left a note under the door which note was to tell Mr. Hollis Adams that Mr. Inman had three named prospects and that Mr. Adams would please meet him at a given place the next morning between 9:00 and 9:30 A.M. in order to close a deal with one of the named prospects.

After leaving the note under the door of the Jim Walter Corporation office in Pine Bluff, Mr. Inman and his mother resumed their return trip to Stuttgart; and at about 6:30 P.M., and outside the city limits of Pine Bluff, his car collided with the Bailsback vehicle being" driven by Van Dalsen. Mr. Inman and his mother were both killed, apparently instantly. Van Dalsen was injured and the Bailsback vehicle was damaged. This action was filed by Van Dalsen and Bailsback against Fred Inman, Jr., Administrator of the Estate of Fred Inman, Sr., and also the Jim Walter Corporation. The estate of Inman made no defense (it being stated in the brief that it was insolvent); but the Jim Walter Corporation denied all liability, claiming that Fred Inman, Sit was not a servant acting within the scope of his employment at the time of the collision. After numerous discovery depositions had been filed, the Jim Walter Corporation moved for summary judgment. The motion was sustained, and the correctness of that ruling as to the Jim Walter Corporation is the sole issue on this appeal.

I. Summary Judgment Procedure. By Act No. 123 of 1961 Arkansas adopted Buie 56 of the Federal Buies of Civil Procedure, which is our summary judgment statute, and is compiled as Ark. Stat. Ann. § 29-211 (Repl. 1962). Some of our cases involving this summary judgment statute are: Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89; Epps v. Remmel, 237 Ark. (Adv. Op.) 391, 373 S. W. 2d 141; and Jones v. Comer, 237 Ark. 500, 374 S. W. 2d 465. In Russell v. City of Rogers supra, we said:

"Our recent summary judgment statute, Act 123 of 1961, is a re-enactment of Rule 56 of the Federal Rules of Civil Procedure. Ark. Stat. Ann. § 29-211 (Repl. 1962). It provides that a summary judgment shall be rendered if the pleadings and proof on file show ‘that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ It has been pointed out, under the Federal Rule, that the theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict. Moore’s Federal Practice (2d Ed.), § 56.02 (10). Hence any testimony that is submitted with the motion must be viewed in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party.”

In the case at bar the burden rested on the movant, Jim Walter Corporation, to establish that there was no liability on its part under the facts most favorable to the plaintiffs. In other words, under the most favorable view of the facts to the plaintiffs, an instructed verdict would be given in favor of Jim Walter Corporation.

II. The Scope Of Employment, With the rule as to summary judgment thus understood, we weigh the evidence in this case; and we reach the conclusion that it establishes, without contradiction, that Mr. Inman was not in the scope of employment of Jim Walter Corporation at the time of the fatal collision, but was on a personal and private mission. In Sweeden v. Atkinson Imp. Co., 93 Ark. 397, 125 S. W. 439, Mr. Justice Frauenthal, speaking for a unanimous Court, stated the following applicable rules:

“ ‘When a servant acts without reference to the service for which he is employed, and not for the purpose of performing the work of his employer, but to effect some independent purpose of his own, the master is not responsible for either the act or omission of the servant.’ ....
“ ‘The act of a servant done to effect some independent purpose of his own, and not with reference to the service in which he is employed, or while he is acting as his own master for the time being, is ordinarily held not to be within the scope of his employment as to render his master liable therefor.’ ”

In St.L.I.M.&S. Ry. Co. v. Robinson, 95 Ark. 39, 128 S. W. 60, we said:

“ ‘The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant. Thus it will be seen that, in order to render the master liable, the act must not only be one that pertains to the business, but must also be fairly within the scope of the authority conferred by the employment.’ .... ‘It will thus be seen that the test of a master’s liability is not whether a given act was done during the existence of the servant’s employment, but whether it was done while carrying out the object and purpose of the master’s business; for, if the act was done without authority and solely for purposes exclusively the servant’s, then the master is not liable during such time that such acts are done. During such time he steps aside from his master’s business and his employment.’ ”

And in Hunter v. First State Bank, 181 Ark. 907, 28 S. W. 2d 812, Justice Hart stated:

“. . . the test of a master’s liability for the act of a servant is not whether a given act was done during the existence of the servant’s employment, but whether it was committed in the prosecution of the master’s business. This rule has been recognized and applied by this court in a suit for damages against the owner of an automobile for injuries sustained by a third person on account of the negligence of the chauffeur.”

To the same effect see also Ark. Natural Gas Co. v. Lee, 115 Ark. 288, 171 S. W. 93; C. R. I. & P. Ry. v. Womble, 131 Ark. 411, 199 S. W. 81; Mullins v. Ritchie Grocer Co., 183 Ark. 218, 35 S. W. 2d 1010; Rex Oil Corp. v. Crank, 183 Ark. 819, 38 S. W. 2d 1093; and Vincennes Steel Corp. v. Gibson, 194 Ark. 58, 106 S. W. 2d 173.

In the case at bar Jim Walter Corporation established that on the day in question Mr. Inman started from his home in Stuttgart on a purely private and personal mission; i.e., to visit his wife in a hospital in Little Bock; that in returning home to Stuttgart from Little Bock he digressed from the said personal and private mission long enough to leave a note under the door of the Jim Walter Corporation in connection with his employment; that Mr. Inman then resumed his private and personal mission to return to Stuttgart with his mother; and that on such personal and private mission he suffered the traffic mishap here involved. In short, Mr. Inman was not “in the scope of employment” of Jim Walter Corporation at the time of the fatal collision here involved. He was on a private mission, just as was the driver of the ear in the case of Phillips Motor Co. v. Price, 204 Ark. 827, 165 S. W. 2d 251. In Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229, the servant sustained a traffic mishap during the time when he had digressed from the scope of employment of the master. In the case at bar, the servant, Inman, had digressed from his personal and private mission long enough to leave a note for his master, but had returned to his personal and private mission at the time of the fatal traffic mishap.

Appellants have cited us to some workmen’s compensation cases wherein salesman have been awarded compensation for injuries sustained while returning home, and it is claimed that these cases govern in the case at bar. Such a workmen’s compensation case is Frank Lyon Co. v. Oates, 225 Ark. 682, 284 S. W. 2d 637. But the liability of the Jim Walter Corporation in the case at bar is to be determined by the “scope of employment” cases involving master and servant, and not by the “arising out of and in the course of employment” rule in workmen’s compensation cases. The workmen’s compensation cases are not applicable to a master and servant ease, such as in the case at bar. The Supreme Court of Wisconsin clearly stated this difference in Village of Butler v. Industrial Comm., 265 Wis. 380, 61 N. W. 2d 490, in this language:

“The principles of the common-law doctrine of ‘respondeat superior’ of the law of master and servant are inapplicable to workmen’s compensation cases. Whether an employee is acting within the scope or course of his employment is usually determinative of the issue of whether his employer should be held liable in damages for his employee’s wrongful act, but is not necessarily controlling in determining whether an employer should be held liable under the Workmen’s Compensation Act if the employee is injured.”

To the same effect see O’Leary v. Brown, 340 U. S. 504, 95 L. Ed. 483, 71 S. Ct. 470; and Edwards v. Louisiana-Forestry Comm., 221 La. 818, 60 So. 2d 449.

The Trial Court correctly sustained the motion for summary judgment offered by Jim Walter Corporation.

Affirmed.

       We take judicial notice of the map of the State (Bonner v. Jackson, 158 Ark. 526, 251 S. W. 1), and of distances between places (Heno v. Fayetteville, 90 Ark. 292, 119 S. W. 287.)

       Sub-section (b) of said Section reads: “For Defending Party. A party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory judgment is sought, may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.”

       In 52 A.L.R. 2d 287, there is an annotation: “Employer’s liability for negligence of employee in driving his own car.” This is not in point to our present case, hut is mentioned for information purposes.